Gujarat High Court

Baldevsinh Virsangbhai Parmar vs State Of Gujarat on 10 November, 2022

Bench: Biren Vaishnav

     C/SCA/20820/2016                                     ORDER DATED: 10/11/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20820 of 2016

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                        BALDEVSINH VIRSANGBHAI PARMAR
                                     Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. KAUSHAL MODI, ADVOCATE FOR MR ASHISH M DAGLI(2203) for the
Petitioner(s) No. 1
MR. ROHAN SHAH, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 10/11/2022

                                   ORAL ORDER

1 Heard Mr.Kaushal Modi, learned counsel appearing

for Mr.Ashish Dagli, learned counsel for the petitioner

and Mr.Rohan Shah, learned AGP, for the State-

respondent.

2 Challenge in this petition is to the order of the

District Magistrate dated 21.04.2012 passed by the

District Magistrate, Surendranagar, confirmed in appeal

by the order dated 16.09.2014 by which the petitioners

application for procuring arm license has been rejected.

C/SCA/20820/2016 ORDER DATED: 10/11/2022

3 Facts in brief would indicate that the petitioner is a

resident of Sayla. He made an application for procuring a

license for N.P.Bore Revolver / Pistol. That application

was rejected by the District Magistrate, Surendranagar

on 21.02.2012 and an appeal preferred to the authorities

and the Home Department also stood rejected.

3.1 It is the case of the petitioner that the rejection of

the application is not on the grounds germane to the

cause. It is his case that the monthly turn over of the

petitioner's business which is of supplying building

materials has a monthly turn over of Rs.50,00,000/-(Rs.50

lakhs only). He needs to travel from one place to another

for business with cash. The ground for rejection of he

paying nominal income tax and that due to the banking

sector providing number of facilities for transferring

funds is not a ground which has any reasonable nexus

with the application made.

4 Mr.Modi, learned counsel for the petitioner, would

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rely on an order passed by a Co-ordinate Bench of this

Court rendered in Special Civil Application No. 1521 of

2015. He would submit that reading the order would

indicate that the Court has held that the Appellate

Authority cannot refuse license on non germane grounds

which are in fact not available to the authorities. The

aspect of the applier for the license of income and that he

does not venture to take any risk in the business is not a

ground available under Sec.14 of the Arms Act, 1959.

Reliance is also placed on an order dated 05.01.2016

passed in Special Civil Application No.14369 of 2015 and

an order dated 07.07.2022 passed in Special Civil

Application No. 9318 of 2021.

5 Mr.Rohan Shah, learned Assistant Government

Pleader, would support the orders passed by the

authorities below and submit that subjective satisfaction

arrived at by the authorities cannot be faulted and this

Court should not interfere with the orders when the

cause advanced by them is just and proper. He would

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submit that the petitioner has failed to show any direct or

indirect threat to his life and as indicated in the affidavit-

in-reply, if the recent development of demonitization and

the economic policy of the State Government is to boost

non cash transactions justifies the passing of the order.

He would also rely on an order passed by this Court in

Special Civil Application No. 4780 of 2022, wherein, the

Court affirmed the orders of the authority below holding

that it is a situation best assessed by the authorities

based on the material and such assessment cannot be

substituted by this Court.

6 Having perused the orders passed by the authorities

below, reading of the order of the Magistrate indicates

that primarily the influence for rejecting the application is

on account of the fact that the authority has opined that

since there is large scale availability of bank transactions

through ATM, Demand Drafts and transactions can be

done through the medium, there is no reason why the

petitioner would need an arm license in order to protect

C/SCA/20820/2016 ORDER DATED: 10/11/2022

himself. The Appellate Authority too has affirmed the

order and also opined that looking to the Income Tax

Returns filed by the appellant-original petitioner indicates

that he would not need a license to carry an arm. Perusal

of the orders of this Court in the case of

Ghanshyambhai Zaverbhai Sonani vs. State of

Gujarat & Ors., rendered in SCA No. 1521 of 2019, and

in the case of Rameshbhai Jethabhai Malakiya vs.

State of Gujarat., rendered in SCA No. 14369 of 2015,

indicate that the provisions of Sec.14 have been set out

and the Court has opined on the contingencies wherein

the license may be refused under Sec.14 of the Act.

Reading of the reasons assigned by the authorities in the

present case in light of the law enunciated in the case of

Malakiya (supra), indicates that merely because the

petitioner may not have been dealing with cash

transactions or income being under a valid consideration,

did not weigh with the authorities. The reasons therefore

are not commensurate with the provisions of the Act and

the section which requires the authority to decide the

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application on the yardstick setout therein. Relevant

paragraphs of the said decision read as under:

"8. Considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the order impugned passed in appeal, it clearly bornes out that the appellate authority has predominantly considered the income aspect of the petitioner. It appears that even though the appellate authority has believed that the petitioner is a business man and has to deal with it, relying upon the income which is shown as taxable income. It is an admitted fact that the Police authorities of Surat City had given a positive opinion. This Court in the case of Sorab Jehangir Bamji (supra) has examined and dealt with the contingencies under which a licence can be refused by the licensing authority as set out in Section 14 of the Act and has observed thus:"

15. The contingencies wherein a licence may be refused by the licencing authority are set out in Section 14, which reads as below:

"14. Refusal of licences.(1) Notwithstanding anything in section 13, the 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;

(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

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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."

Section 14 sets out the grounds on which a firearm licence may be refused. The reason for refusal to grant a firearm licence to the petitioner is not that he is prohibited by any provision of the Act or any other law from holding a licence, or that he has asked for a licence in respect of a prohibited firearm, or is of unsound mind or, is unfit for grant of licence under the Act for any other reason. Further, the application of the petitioner has not been rejected on the ground that such refusal would be necessary for the security of the public peace, or for public safety. The reason for rejection of the application is that the petitioner was aged 63 years, which does not find mention in Section 14 of the Act. There is no other provision in the Act that states that a licence cannot be granted to a person who attains a particular age.

17. In light of the statutory provisions and decisions referred to above, it would be necessary to revert to the impugned orders. A perusal of the impugned orders indicates that the sole reason for rejection of the application of the petitioner, is based upon the opinion of the Police authorities that the licence may

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not be granted as the petitioner is aged 63 years. Apart from that, the District Magistrate and the State Government have concluded in their respective orders, that no reasonable ground exists for granting a licence to the petitioner. As has been noticed hereinabove, Section 13(2A) vests the licencing authority with power to either grant a licence or refuse the same, as thought necessary, after considering the report of the officer in charge of the nearest Police Station, as provided under Section 13(1)(2). As per Section 14(1)(b)(ii), the licencing authority shall refuse to grant a licence, among other reasons mentioned in Section 14(1), if it is found necessary to refuse it for the security of the public peace or public safety. As already discussed above, the report of the Police authorities in the case of the petitioner, does not indicate that he has any criminal antecedents, or that granting the licence to him will endanger the security and safety of the public or hinder public peace. In fact, the Police authorities have not given any adverse opinion in the case of the petitioner. The only ground mentioned is that the petitioner is 63 years of age which, in the view of this Court, cannot be considered as being a prohibition, as it is nowhere so stated in the Act.

18. Though Section 9 prohibits a person, who has not completed the age of 21 years, from acquiring, possessing or carrying a firearm or ammunition, there is no prohibition regarding a person of any age above the age of 21 years from doing so. The grounds for refusal of a licence under Section 14 do not apply to the petitioner in any manner. The discretion for exercise of power vested in the licencing authority by virtue of Section 13(2A) is to be exercised in relation to, and in the context of, the provisions of the Act, in a reasonable and rational manner. The reasons for refusal of a licence would have to have a nexus to, and be in context with, the

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provisions of the Act. Merely refusing to issue a licence for a reason not prohibited by the Act, such as being aged 63 years, is unjustified and not in consonance with the provisions of the Act. It is stated in the impugned orders passed by the District Magistrate and the State Government, that there are no reasonable grounds for grant of licence to the petitioner. On the contrary, in view of the relevant provisions of the Act, it is evident that the respondents have failed to show any valid grounds for refusal of the licence."

9. Similarly, this Court in Special Civil Application No.1521 of 2015 by judgment and order dated 30/10/2015 has also taken a similar view while referring to Section 14(2) of the Act. The learned Assistant Government Pleader has not been able to point out anything from the record except the fact that some instructions have been given to the State Government by the Central Government. However, the fact remains that no such contingency is provided in Section 14 of the Act and more particularly, the reasons for which a licence can be refused does not exist in the case on hand. On the contrary, subsection (2) of Section 14 of the Act clearly provides that the licencing authority shall not refuse to grant any licence to any person merely on the ground that such person does not have sufficient income. The appellate authority cannot refuse a licence discarding the positive opinion given by the authorities as well.

11. In view of the above, the impugned order dated 10/03/2015 passed by the Deputy Secretary, Home Department, Gujarat State is hereby quashed and set aside and the proceedings of the said appeal is remanded back to the appellate authority for its rehearing on merits. The appellate authority shall consider all such contentions that may be raised by the petitioner.

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12. As the issue is pending since 2012, the appellate authority shall endeavour to dispose of the aforesaid appeal as expeditiously as possible after giving an opportunity of being heard to the petitioner without in any manner being influenced by any of the observations made in the impugned order and shall decide the appeal de novo."

7 However, what also needs to be appreciated to the

application for license so made in the year 2011, the

application was rejected in the year 2012 and the appeal

was decided in the year 2014, petition was filed two years

thereafter in the year 2016. Eleven years have gone by,

and therefore, in case the petitioner is in need of an arms

license, it is open for him to apply afresh. On an

application being so made, the authorities shall consider

the case for arms license without being influenced by the

present orders which are under challenge in this petition

considering the same in light of the observations made

herein. With the aforesaid observations and directions,