Sanjay Nebhabhai Muliyashiya vs State Of Gujarat
2022 Latest Caselaw 5324 Guj

     C/SCA/7789/2022                              JUDGMENT DATED: 21/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7789 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA
==========================================================
1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                       SANJAY NEBHABHAI MULIYASHIYA
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR. B.S.PATEL, SR.COUNSEL WITH MR. MALAYKUMAR S PATEL(8901)
for the Petitioner(s) No. 1
MR.SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,2
==========================================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                              Date : 21/06/2022

                              ORAL JUDGMENT

1. Rule. Mr. Sahil Trivedi, learned AGP waives service of notice of rule for and on behalf of the respondent-State.

2. The present petition has been filed inter alia challenging the orders dated 09.08.2019 passed by the District Magistrate, Junagadh rejecting the license under the Arms Act, 1959 ("the Arms Act") for self-protection and order dated 30.12.2020 passed in Appeal No. 206

C/SCA/7789/2022 JUDGMENT DATED: 21/06/2022

of 2019 by the Additional Secretary (A & C), Home Department in the State Government confirming the order dated 09.08.2019.

3. The brief facts of this petition are as under:-

4. The petitioner - Nebhabhai Bhimabhai Muliyashiya possessed the Arms licence of one 32 Bore Pistol being License No. DM/JND/ MNV/III/27 from last 45 years (i.e. since 1979) and from time and being again the license of the father of the petitioner was renewed for a period of last 45 years, and lastly on 31.12.2018 the above Armed license was renewed till 31.12.2019, and thereby, order dated 24.01.2020 by the respondent No.2, the father of the petitioner deposited the licensed arm before the respondent No.2 authority, due to his old age condition, as per the rules and guidelines and resolutions of the Government. The petitioner made an application on 18.12.2018 to the respondent No.2 with the prayer to issue the above said Arm License of the 32 Bore Pistol being License No. DM/JND/MNV/III/27 in favour of the petitioner, along with representations of his father and also produced requisite certificate, and Government resolution and also specifically requested that the above mentioned Arm Pistol, was given to his grand parent (Nana Bapu) by the Porbandar State, and accordingly the same Pistol was given to the father of the petitioner by his grand parent (Nana Bapu), and also stated in his representation that from last 44 years, the family of the petitioner taken care of heritage 32 Bore Pistol, and they having their emotional attachments/sentimental values attached with the said Arm pistol.

C/SCA/7789/2022 JUDGMENT DATED: 21/06/2022

5. By the impugned order dated 09.08.2019, the respondent No.2 District Magistrate has rejected the application of the petitioner. Being being aggrieved and dissatisfied with the same the petitioner preferred an appeal before the appellate authority under Section 18 of the Arms Act. 1959 as Appeal No. 206/2019. The respondent-authority on 30.12.2020 has rejecting the application for renewal .

6. Learned Senior Advocate Mr.B.S.Patel appearing for the petitioner has submitted that the respondents authorities have failed to appreciate Section 14 of Arms Act, 1959 by which the authority has been given the rights to decide the application for arms license. He has further submitted that the respondent authorities have failed to appreciate the fact that the said Arms license was issued to the father of the present petitioner way back in the year of 1979 and till date no untoward incident had been reported against the father of the petitioner that he has misused the licensed weapon. It is submitted that the respondent authorities have failed to appreciate the police report which was in his favour. Since not a single offence registered against the present petitioner. He has relied upon the order passed by this Court dated 13.6.2022 in Special Civil Application No. 13499 of 2021. Therefore, it was submitted by the learned senior advocate for the petitioner that the impugned order is required to be quashed and set aside.

7. In response to the aforesaid submissions, Mr. Sahil Trivedi, learned AGP has submitted that the impugned orders may not be

C/SCA/7789/2022 JUDGMENT DATED: 21/06/2022

quashed and set aside as the same are passed after considering all the relevant aspects.

8. Heard the learned advocates appearing for the respective parties.

9. The facts as narrated are not in dispute. The petitioner is managing a petrol pump and is also doing construction business, which involves cash transactions. It is not in dispute that father of the petitioner was in possession of the Arms license of one 32 Bore Pistol being License No. DM/JND/MNV/III/27 and the same was renewed by him for last 45 years and lastly on 31.12.2018, it was renewed till 13.12.2019 . Due to old age of father of the petitioner and as per the rules and guidelines of the State Government, the said Pistol has been deposited. Accordingly, the petitioner had applied for the said Arm license in order to see that the Arm Pistol, which was in the family since last 45 years, is taken care by him.

10. At this stage, it would be apposite to refer to the provision of Section 14 of the Arms Act. The same reads as under:

14. Refusal of licences.--

(1) Notwithstanding anything in section 13, licensing authority shall refuse to grant-

(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;

C/SCA/7789/2022 JUDGMENT DATED: 21/06/2022

(b) a licence in any other case under Chapter II,--

(i) where such licence is required by a person whom the licensing authority has reason to believe--

(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or

(2) to be of unsound mind, or

(3) to be for any reason unfit for a licence under this Act; or

(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

11. The District Magistrate, while rejecting the application of the petitioner as well the appellate authority, while dealing with the appeal of the petitioner, has passed the orders being oblivious to the provisions of Section 14 of the Arms Act, which pertain to the refusal of the license. It is not the case of the State authorities that the petitioner has been found not worthy of the license on the grounds mentioned under Section 14 of the Arms Act. The grounds,

C/SCA/7789/2022 JUDGMENT DATED: 21/06/2022

mentioned in the impugned orders, do not in any manner indicate that the petitioner is not entitled for the arms license and he is treated to be unfit for the license under the Arms Act. It is not in dispute that authority i.e. Superintendent of Police, Junagadh and Sub Divisional Magistrate, Vanthali have given positive reports in favour of the petitioner and no adverse facts are reported against him. Thus, while passing any order, the said aspect was also required to be considered positively.

12. In light of the aforesaid facts and circumstances and looking to the provision of the Arms Act, the present writ petition is allowed. The impugned orders dated 09.08.2019 passed by the District Magistrate, Junagadh and dated 30.12.2020 passed in Appeal No.206 of 2019 by the Additional Secretary (A & C), Home Department in the State Government are hereby quashed and set aside. The respondent No.2 is directed to issue license to the petitioner pursuant to the application dated 18.12.2018. However, it is clarified that while issuing the license, if any adverse incident comes to the notice to the District Magistrate, after the impugned order dated 09.08.2019, which directly implicates the petitioner in any offence, he may refuse to grant the license. Liberty is reserved in favour of the petitioner to challenge the same in appropriate proceedings, in case such adverse order is passed. Rule is made absolute. Direct service is permitted.

(A. S. SUPEHIA, J) BEENA SHAH