Gujarat High Court

Ashokkumar Bhikhaji Thakor vs State Of Gujarat on 7 February, 2023

Bench: Biren Vaishnav

     C/SCA/15768/2019                                  ORDER DATED: 07/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15768 of 2019

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                         ASHOKKUMAR BHIKHAJI THAKOR
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR ABHIJIT RATHOD WITH MS NILAM N CHAUHAN(6635) for the
Petitioner(s) No. 1
MS DHARITRI PANCHOLI, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                Date : 07/02/2023

                                 ORAL ORDER

1. Heard Mr. Abhijit Rathod, learned advocate

appearing for the petitioner and Ms. Dharitri Pancholi,

learned AGP for the respondents.

2. Rule returnable forthwith. Ms. Pancholi, learned

AGP waives service of notice of rule.

3. Challenge in this petition, under Article 226 of the

Constitution of India, is to the order dated 18.09.2017

passed by the District Magistrate, Banaskantha and the

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order dated 27.05.2019 passed by respondent no. 2 in

Appeal No. 253 of 2017.

4. This is the third round of litigation in context of the

revocation application of an arms licence which was

granted to the petitioner on 11.08.2003. Reiteration of

facts may not be necessary in light of the reproduction of

the facts and submissions of learned advocates in the

order of the Division Bench in Letters Patent Appeal No.

290 of 2016 dated 12.06.2017 which read as under:

"1. This appeal is filed under Clause 15 of Letters Patent against an order dated 26.02.2016 passed by learned Single Judge in Special Civil Application No.1169 of 2016 by which the learned Single Judge has dismissed the petition.

2. It is the case of the appellant original petitioner that he is a businessman carrying on the business of sale and purchase of land and is appointed as Vice-President of Palanpur Municipality. The petitioner applied for licence for NP Bore Revolver Pistol on the ground of self defence as he is active in political life and he has to travel alone on frequent occasions for his business purpose. The respondent No.3 issued arms licence on 11.08.2006 in favour of the petitioner. Thereafter, on 26.11.2007, FIR being C.R.No.I-110/07 came to be registered against the petitioner and other

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persons before Palanpur City Police Station for the offences punishable under Sections 201, 406, 409, 420, 465, 467, 468, 471,477(A) and 34 of the IPC and Sections 13(1)(c) and (d) of the Prevention of Corruption Act,1988. The Investigating Officer filed the charge-sheet and Special Case No.181 of 2007 has been registered before the Fast Track Court, B.K. In the said proceedings the petitioner has filed application for discharge.

3. It is the say of the petitioner that because of the registration of the aforesaid FIR, the respondent No.3 issued show cause notice dated 10.09.2008, whereby the petitioner was asked to show cause as to why the arms licence granted in favour of the petitioner should not be revoked/cancelled. Thereafter, the respondent No.3 by an order dated 27.04.2009 revoked the arms licence issued in favour of the petitioner and therefore petitioner preferred appeal before the respondent no.2. The respondent No.2 by an order dated 07.06.2011 quashed and set aside the order dated 27.04.2009 passed by the respondent No.3 and matter was remanded back to the respondent No.3 for fresh consideration. However, once again the respondent No.3 passed an order on 29.06.2013, whereby, once again the licence of the petitioner has been cancelled and the application of the petitioner came to be rejected. Once again the petitioner filed an appeal before the respondent No.2 under Section 18 of the Arms Act, 1959 (hereinafter referred to as the Act for short). The respondent No.2, by an order dated 24.08.2015, confirmed the order passed by the respondent No.3 and thereby rejected the appeal.

4. The petitioner has, therefore, filed the captioned petition before this Court. The learned Single Judge

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by the impugned order dismissed the petition. Hence, the present appeal is filed by the original petitioner.

5. Heard learned advocate Mr. Abhimanyu Rathod for the appellant original petitioner and learned AGP Mr. K. M. Antani for the respondents.

6. Learned advocate Mr. Rathod mainly contended that the respondent No.3, while revoking the licence and while exercising the powers under Section 17 of the Act has not properly considered the grounds on which the licence can be revoked. It is submitted that the Appellant Authority has also failed to consider the aforesaid important aspects and the learned Single Judge while dismissing the petition has also failed to consider the provisions contained in Section 17 of the Act. It is submitted that merely because FIR is registered, licence issued by the respondent No.3 cannot be revoked/cancelled. In the present case, it is submitted that FIR is filed for the alleged offences punishable under the provisions of the Prevention of Corruption Act and under the provisions of the IPC and it is not alleged that the petitioner has used the revolver and thereby disturbed the public peace or public safety. The FIR which is registered has nothing to do with the continuation of licence of the petitioner.

7. It is further contended that the licence issued under the Act by the respondent No.3 in favour of one Mrs. R. H. Trivedi was also cancelled by the respondent No.3. It is submitted that said Mrs. R. H. Trivedi is also a co-accused along with the petitioner in the aforesaid FIR. However, when Mrs. Trivedi has filed an appeal before the respondent No.2, the respondent No.2 has quashed

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the order passed by the respondent No.3 and restored the licence in her favour on payment of requisite fees. Thus, it is contended that when the respondent No.2 has allowed the appeal of Mrs. R. H. Trivedi and restored her licence by setting aside the order passed by the respondent No.3, the respondent No.2 ought to have passed similar type of order in favour of the petitioner. It is clarified that in case of Mrs. R. H. Trivedi also the respondent No.3 has placed reliance upon the negative opinion of the Superintendent of Police as well as pendency of the FIR against her, inspite of that the respondent No.2 has allowed her appeal.

8. In support of his submissions, learned advocate has placed reliance upon the decision rendered by the learned Single Judge of this Court in the case of Kumarbhai Laljibhai Malhotra v. State of Gujarat, reported in 2007(1) GLR 166 as well as decision rendered by the learned Single Judge of Allahabad High Court in the case of Ram Murti Madhukar v. District Magistrate, Sitapur, reported in 1999 CriLJ 3712.

9. On the other hand, learned AGP has mainly submitted that the respondent No.3 has revoked the licence of the petitioner while exercising powers under Section 17(3)(a) of the Act. It is submitted that if the licensing authority is satisfied that the holder of the licence, for any reason, is unfit for a licence under the Arms Act, his licence can be revoked by the licensing authority. Thus, because of the registration of FIR against the petitioner, the licensing authority was satisfied that petitioner is unfit to have licence under the Act and therefore the licence was revoked by the respondent No.3 and therefore he has not committed any illegality. It is contended that the

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Appellate Authority as well as the learned Single Judge while not entertaining the appeal as well as the petition respectively have also not committed any error. He, therefore, requested that this appeal be dismissed.

10. Learned AGP has submitted that case of Mrs. Trivedi cannot be compared with the case of the petitioner, as being a lady, the Appellate Authority has thought it fit to restore the licence in her favour. Thus, no error is committed by the learned Single Judge while dismissing the petition of the petitioner.

11. Learned AGP has lastly submitted that the petitioner has requested the learned Single Judge that the Trial Court be directed to expedite the hearing of the discharge application and therefore the petitioner was agreeable with the order passed by the learned Single Judge. In fact, the learned Single Judge has accepted the request of the petitioner and directed the learned Trial Court to give priority to the discharge application filed by the petitioner and therefore it is submitted that once such request is made, it would not be proper for the petitioner to file present appeal and therefore on this ground also the same be dismissed.

12. The learned AGP has placed on record the guidelines issued by the Ministry of Home Affairs on 31.03.2010 in which it has been stated that no licence may be granted without police verification, which will include report on antecedents of the applicant, assessment of the threat, capability of the applicant to handle arms and any other information which the police authority might consider relevant for the grant or refusal of licence.

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Relying upon the aforesaid guidelines issued by the Union of India, it is submitted that looking to the antecedents of the petitioner, the respondent No.3 is justified in revoking the licence of the petitioner and therefore learned Single Judge has rightly not interfered with the orders passed by the respondent authorities. Hence, this appeal be dismissed."

4.1 Pursuant to the order of the Division Bench, on

remand the District Magistrate by the order impugned

herein rejected the application for renewal on the ground

of pendency of the criminal case being Criminal Case No.

110 of 2007 under Sections 201, 406, 409, 420, 465, 467,

468, 471, 477(A) and 34 of IPC read with Section 13(1)

a challenge in the appeal, the appellate authority affirmed

the order.

5. Mr. Abhijit Rathod, learned advocate appearing for

the petitioner would submit that despite the observations

in the order of the Division Bench as set out in

paragraphs no. 14 and 15 in context of Section 17 of the

Arms Act, the authorities have reiterated the stand of the

C/SCA/15768/2019 ORDER DATED: 07/02/2023

pendency of criminal case and that there is no evidence of

threat perception of the petitioner. He would rely on a

subsequent development too, that is, acquittal in the

criminal case by the competent court being the court of

5th Additional Sessions Judge, Banaskantha vide order

dated 15.04.2020. As far as the legal submissions are

concerned, on the aspect of the authorities' stand several

decisions have been relied upon by Mr. Rathod, learned

advocate for the petitioner which are as under:

(a) Order dated 27.06.2022 passed in Special Civil

Application No. 352 of 2022;

(b) Order dated 30.11.2021 passed in Special Civil

Application No. 12097 of 2021;

Special Civil Application No. 13499 of 2021;

(d) Order dated 03.02.2023 passed in Special Civil

Application No. 14566 of 2019;

(e) Kumarbhai Laljibhai Malhotra vs. State of Gujarat &

Anr. Reported in 2007(1) GLR 166.

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5.1 What is also pressed into service is the decision of

the co-ordinate bench of this court rendered in the case

of Ahmed Mustafa Sunsara vs. District Magistrate &

Collector, Banaskantha [2021(0) AIJEL-High Court

242753] wherein by relying on the very decision of the

Division Bench, the court had entertained the petition and

quashed the order of the authority refusing to renew the

licence.

6. Ms. Dharitri Pancholi, learned AGP would submit

that the acquittal of the petitioner is a subsequent

development. At the time when the application was

considered, the criminal case was pending against the

petitioner. What also needs to be considered, in the

submission of Ms. Pancholi, learned AGP is that there is

an adverse police opinion by the police authorities and

therefore that was the ground which could have weighed

with the authorities in rejecting the application of the

petitioner.

C/SCA/15768/2019 ORDER DATED: 07/02/2023

7. This court has considered the submissions of learned

advocates for the parties. Facts have been set out as

discussed by the Division Bench in the paragraphs as

aforesaid. What is evident in reading the facts and orders

under challenge is that the petitioner was arraigned in a

criminal case for an offence registered under the

Prevention of Corruption Act. That was also on the basis

of a negative opinion rendered by the Superintendent of

Police. Considering the provisions of Section 17 of the

Arms Act, the Division Bench equivocally in paragraphs

no. 13 to 15 had observed as under:

"13. Having considered the submissions canvassed on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, it is clear that the respondent No.3 issued Arms Licence No.BK/42/03 for NP Bore Revolver Pistol in favour of the petitioner on 11.08.2006. Thereafter, on 26.11.2007, FIR being CR No.I-110/2007 came to be registered against the petitioner and other accused before Palanpur Police Station for the offences punishable under Section 409, 477(A) and 34 of the IPC as well as under Sections 13(1)(d) of the Prevention of Corruption Act. Thus, on the basis of the

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registration of the FIR against the petitioner, the respondent No.3 after issuance of the show cause notice, revoked the licence of the petitioner on the ground of public interest. The said order was quashed by the Appellate Authority i.e. the respondent No.2 and matter was remanded to the respondent No.3. However, when the matter was remanded back to the respondent No.3, the respondent No.3 rejected the application of the petitioner mainly on the ground that against the licence holder, FIR came to be registered for the offences punishable under the provisions of the IPC as well as Prevention of Corruption Act and Superintendent of Police has given his negative opinion and the trial of the said criminal proceeding is still pending and therefore it is not proper to restore the licence of the petitioner. It is further recorded by the respondent No.3 that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore Arms licence is required. Thus, on the aforesaid grounds, the respondent No.3 has not entertained the application of the petitioner and once again confirmed his order by revoking the licence of the petitioner. The aforesaid order came to be confirmed by the respondent No.2 in the appeal and the learned Single Judge has also dismissed the petition.

14. At this stage, provision contained under Section 17 of the Arms Act, 1959 is required to be considered. Sub-section (3) of Section 17 provides as under:

17. Variation, suspension and revocation of licences.µ

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1. xxx xxx

2. xxx xxx

(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licenceµ

(a) if the licensing authority is satisfied that the holder of the licence is 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 is of unsound mind, or is for any reason unfit for a licence under this Act; or

(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or

(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or

(d) if any of the conditions of the licence has been contravened; or

(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.

15. From the aforesaid provision, it is clear that the licensing authority is empowered to suspend or revoke the licence under the circumstances which are enumerated in aforesaid sub-section (3) of Section 17. As observed hereinabove the respondent No.3 has placed reliance upon the negative opinion given by the Superintendent of

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Police and pendency of the criminal proceedings against the petitioner. However, the respondent No.3 has not considered whether the registration of FIR against the petitioner and pendency of criminal proceedings for the offence of criminal breach of trust, forgery and under the provisions of the Prevention of Corruption Act in any way affect the public safety, security or public peace. Further, the respondent No.3 has also committed an error by observing that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore arms licence is required. It is required to be noted that the respondent No.3 was not for the first time issuing the licence in favour of the petitioner but he was exercising the powers under Section 17 of the Act for revocation of the licence and therefore also the order passed by the respondent No.3 is required to be set aside. From the order passed by the respondent No.3 it is not reflected that he has exercised the powers under Section 17(3)(a) of the Act on the ground that petitioner is unfit to have licence. Thus, the submission canvassed by learned AGP is misconceived."

7.1 Be it noted, the Division Bench in the order

specifically emphasized the fact which is quoted as under:

"...However, the respondent No.3 has not considered whether the registration of FIR against the petitioner and pendency of criminal

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proceedings for the offence of criminal breach of trust, forgery and under the provisions of the Prevention of Corruption Act in any way affect the public safety, security or public peace."

7.2 Perusal of the order of the appellate authority

indicates that even if this court was to agree with the

submission of learned AGP that acquittal in a corruption

case is a subsequent event and the police verification

then was based on the pendency of the case, there cannot

be any evidence of a threat perception to any individual

because there is absence of a threat perception and

evidence to prove that is not available and therefore

renewal of licence cannot be rejected. The same is also

set out in various decisions of this court particularly in

the decision dated 30.11.2021 rendered in Special Civil

Application No. 12097 of 2021 (Khuramkhan

Abadkhan Bihari vs. State of Gujarat) where this

court in paragraphs no. 10 to 12 has held as under:

"10. The petitioner, apropos the show cause notice, has filed a detailed reply dated 22.12.2020, pointing out that for the purpose of self-protection,

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the age is immaterial. The provisions of Section 17 of the Act of 1959 was also brought to the notice of the respondent authority. The respondent no.3 thereafter, passed an order dated 5.6.2021, cancelling the license on the three grounds, namely, (i) that the petitioner has not produced any documentary evidence to substantiate that the petitioner has any threat to life or that the petitioner is dealing with the cash transactions and for which, the license is required to be continued for self-protection; (ii) that the petitioner has not received any threat and/or not incident has taken place of any attack for which also, the weapon is required; and (iii) that the license is in currency since last more than 20 years on the ground that at the relevant point of time, there was a threat to the life of the petitioner. 11. Therefore, what essentially weighed with the respondent authority is the age of the petitioner in wake of the communication dated 13.12.2017 of the Home Department, Gandhinagar. So far as the said aspect is concerned, reliance placed on the judgment in the case of Ahmed Mustafa Sunsara (supra) is worth referring to wherein reference has been made by the co-ordinate bench upon the judgment in the case of Ashokkumar Bhikhaji Thakor (supra). Paragraphs 15 and 16 whereof read thus:-

"15. From the aforesaid provision, it is clear that the licensing authority is empowered to suspend or revoke the licence under the circumstances which are enumerated in aforesaid subsection (3) of Section 17. As observed hereinabove the respondent No.3 has placed reliance upon the negative opinion given by the Superintendent of Police and pendency of the criminal proceedings against

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the petitioner. However, the respondent No.3 has not considered whether the registration of FIR against the petitioner and pendency of criminal proceedings for the offence of criminal breach of trust, forgery and under the provisions of the Prevention of Corruption Act in any way affect the public safety, security or public peace. Further, the respondent No.3 has also committed an error by observing that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore arms licence is required. It is required to be noted that the respondent No.3 was not for the first time issuing the licence in favour of the petitioner but he was exercising the powers under Section 17 of the Act for revocation of the licence and therefore also the order passed by the respondent No.3 is required to be set aside. From the order passed by the respondent No.3 it is not reflected that he has exercised the powers under Section 17(3) (a) of the Act on the ground that petitioner is unfit to have licence. Thus, the submission canvassed by learned AGP is misconceived.

16. Further, the respondent No.3 has revoked the licence of the petitioner on the basis of pendency of criminal proceedings as discussed hereinabove. However, arms licence of the coaccused of the same FIR against whom the criminal proceeding is still pending has been restored by the Appellate Authority."

Similarly, the case of Sorab Jehangir Bamji (supra) is also worth referring to. Paragraphs 17,

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18 and 19 read thus:-

"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 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.

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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 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.

19. The petitioner is, and has been, a member of Billimora Rifle Club since the year 1988, and has participated in a number of Rifle Shooting tournaments and won several certificates and awards. grant of the licence is for participation in sports activities, namely, Rifle Shooting. As per Section 13(3)(I), the licencing authority can grant a licence in respect of a smooth bore gun having a barrel

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of not less than twenty inches in length, for protection of crops or for sports. Apart from sports, the petitioner has cited the reason of self protection in his application for grant of the licence. As the petitioner was 63 years old at the relevant point of time, and is now aged about 67 years, it cannot be said that the reason of self protection is unjustified as older people would require to be more secure and to have a licenced firearm would provide such security. Both the grounds for which the petitioner has requested for the issuance of a firearm licence, cannot be said to be unreasonable or inadequate. It is not understandable on what premises the respondents have come to such a conclusion."

It has been held that reasons for refusal of a license would have to have a nexus to, and be in context with, the provisions of the Act. Merely refusing to issue a license 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 has also been held that merely because the petitioner at the time of the making the application was 63 years, and at the time of renewal about 67 years, it cannot be said that the reason of self-protection is unjustified as older people would require to be more secure and to have a licensed firearm would provide such security.

Therefore, so far as the issue of revocation of the license on the ground of age is concerned, this Court has held that it would be unreasonable on the part of the respondent authorities to reject the application.

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12. While adverting to the contention of Mr. Parikh, learned Assistant Government Pleader that the application has not been rejected only on the ground of age, however, there are other grounds for rejecting the application. At this stage, it is required to be noted that the show cause notice was issued, limited to the aspect that considering the age of the petitioner, why the license shall not be cancelled; however, the petitioner was not required to satisfy the authorities providing for the other reasons. The respondent no.3, has while passing the order, dealt with the other issues, namely, the risk involved in the business or that the petitioner has received any threat of life. Therefore, clearly, the order dated 5.6.2021 passed by the respondent no.3 authority, has travelled beyond the scope of the show cause notice and therefore, this Court is of the opinion that the order, is without jurisdiction."

8. For the aforesaid reasons, the orders impugned in

this petition, dated 18.09.2017 and 27.05.2019 are

quashed and set aside. Petition is accordingly allowed.

Rule is made absolute accordingly. Direct service is

permitted.

(BIREN VAISHNAV, J) DIVYA