Arjunsinh Jorubha Jadeja vs State Of Gujarat
2023 Latest Caselaw 602 Guj

    C/SCA/15149/2022                            ORDER DATED: 20/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 15149 of 2022
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                       ARJUNSINH JORUBHA JADEJA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MS SONAL D VYAS(999) for the Petitioner(s) No. 1
MR.SANJAY UDHWANI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                            Date : 20/01/2023

                             ORAL ORDER

1. By way of this petition under Article 226 of the

Constitution of India, the petitioner has prayed

for quashing and setting aside the order dated

31.05.2019. By the order under challenge, the

Appellate Authority confirmed the order of the

District Magistrate, Kutch, dated 21.08.2017, by

which, the Magistrate had revoked the arms

licence of the petitioner.

2. Facts in brief would indicate that the petitioner

possessed a twelve bore gun and a revolver. On

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account of registration of an FIR being CR.NO.56

of 2009 and 57/2009 under the provisions of

Sections 302 and 307 of the Indian Penal Code,

the arms i.e. twelve bore gun and a revolver

were confiscated from the petitioner and on

01.01.2010, the application for return of these

arms was rejected by the authority and the

licence was revoked. Aggrieved by the order of

the revocation the petitioner preferred an appeal

before the State. It was the case of the

petitioner that he was operating a 'Kasumbi

News Channel'. His earnings are about Rs.2 to 3

lakhs per annum. That he therefore was in need

of weapon and the revocation must be set aside.

2.1 The Appellate Authority by its order dated

13.04.2012 set aside the order of rejection and

remanded the proceedings for the authorities to

reconsider the same after obtaining a fresh

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police opinion. On 27.07.2016, the police opined

that since the petitioner is running a local news

channel, his case for licence being continued

needs to be considered favorably. Based on this

police opinion, the District Magistrate on

21.08.2017 on reconsideration of revocation and

the opinion rendered by the police authorities

found that a criminal complaint was registered

against the petitioner under Sections 302, 323 of

the Indian Penal Code and Section 27 of the

Arms Act, 1959, and the case before the

Competent Criminal Court was pending, it was

not thought proper to restore the licence in

favour of the petitioner. In the meantime, it

appears that by a judgment and order dated

20.12.2018, the petitioner was acquitted by the

6th Additional Sessions Judge, Bhuj. In the

appeal therefore, it was the contention of the

petitioner that now that the petitioner has been

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acquitted his licence ought to be reconsidered.

The Appellate Authority on a consideration and

having perused the judgment of the Criminal

Court found that though it was an acquittal, he

would not consider it as an acquittal 'crystal

clear', as a result of the fact that the witnesses

had turned hostile. Looking to the history

therefore and considering the provisions of

Section 14 of the Act, the Appellate Authority

confirmed the order of the District Magistrate

and rejected the request of the petitioner.

Hence, the petition.

3. Ms.Sonal Vyas learned counsel for the petitioner

would submit that reading of the judgement of

the criminal Court would clearly indicate that it

was an acquittal on merits and therefore if the

obstacle that no arms can be possessed by the

petitioner due to the criminal case was

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considered, now that the petitioner has been

acquitted he was entitled to restoration of the

arms licence.

3.1 Ms.Vyas would further submit that it was

not for the Appellate Authority to sit over the

judgement of the Criminal Court and assess the

nature of evidence before it while considering

the application for renewal.

3.2 Ms.Vyas would further submit that the

petitioner did require an arms licence and

weapons for self defense. In support of her

submission that once there was an acquittal, the

order of revocation of licence must be interfered

with, she would rely on a decision of coordinate

bench of this Court in case of Pratapbhai

Suragbhai Varu v. State of Gujarat reported

in 2006 (4) GLR 3031. She would press into

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service paragraphs 6, 8 and 9 of the judgement

to indicate that this Court in an almost identical

case had found that once there was an acquittal,

the petitioner would be entitled to renewal of

licence.

4. Mr.Sanjay Udhwani learned AGP would support

the order of the Magistrate as well as that of the

Appellate Authority. Reading the judgement of

onwards, he would submit that on reading the

judgement it would reveal that each and every

witness that had deposed before the Criminal

Court had turned hostile and only because of

want of evidence, the petitioner was acquitted

and therefore the authorities in their subjective

satisfaction could have assessed the material end

even if it was an acquittal, could have revoked

such licence.

C/SCA/15149/2022 ORDER DATED: 20/01/2023

4.1 In support of his submission, Mr.Udhwani

would rely on the decision of this Court in case of

Vipulbhai Bhikhubhai Gohil v. State of

Gujarat rendered in Special Civil Application

No.4780 of 2022 and that of the Delhi High

Court in case of Virendra Prasad v. The

Additional Commissioner of Police and Anr.

rendered in W.P.(C) 11035 of 2016 and CM

No.43108/2016.

4.2 To the submission of Ms.Vyas on the aspect

of Section 17(7) of the Arms Act which in her

submission mandated restoration of the licence

on the conviction being set aside, Mr.Udhwani

would submit that in view of sub-section (7) of

Section 17 in context of order of Courts before

whom the proceedings were pending, this was a

case where the authorities had exercised the

powers under Section 17(3) or Section 14 of the

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Arms Act, 1959.

5. The question therefore is whether the

observations made by the Appellate Authority in

refusing to entertain the application for

revocation of the licence is just and proper. The

Appellate Authority in its wisdom after assessing

the judgement of the Trial Court which though

acquitted the petitioner, opined that it was not a

crystal clear acquittal. A casual perusal of the

judgement of the Trial Court which is on record,

would indicate that all the witnesses i.e. the

Panch witnesses especially had turned hostile.

In the facts of this case therefore, the Court

found that for a case wanting an evidence and in

the absence of such evidence being brought

forth, the prosecution has not been able to prove

its case beyond doubt. Acquittal was therefore

recorded.

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6. Unlike a case where, an acquittal would by as a

matter of course render an action or an order

passed based on the registration of an FIR to be

set aside, this is not such case. For instance,

well-known it is that in matters of employer-

employee relationship if an employee is

dismissed from service on account of a conviction

by a Court, if that conviction is set aside by a

higher Court on acquittal, reinstatement would

follow. That is because the mindset of the

authorities was influenced by the acquittal. The

parameters which would govern a case of an

applicant who has applied for possession of arms

cannot be considered on such similar lines

merely because of an acquittal in a criminal case.

7. Sections 14 and 17 deal with provisions with

regard to refusal of licence or for variations,

suspension and revocation of licence. Sections

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14 and 17 of the Arms Act read as under:

"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 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

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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.

17. Variation, suspension and revocation of licences.―

(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may specified in the notice.

(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.

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

(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

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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.

(4) The licensing authority may also revoke a licence on the application of the holder thereof.

(5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it

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will not be in the public interest to furnish such statement.

(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.

(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence: Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.

(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.

(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.

(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other

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authority as may be specified in this behalf in the order of suspension or revocation ."

8. A licence can be refused to an individual whether

the authority has reason to believe that he is

prohibited by the Act from acquiring or

possessing or carrying any arms or is of unsound

mind or to be for any reason unfit for licence

under the Act. A licence can also be refused

when the authorities deem it necessary for

security of the public peace or for public safety.

For variation, suspension and revocation of

licences, the licensing authority by an order may

suspend, or revoke a license if it is specified that

such holder is prohibited by this Act or any other

law for that time being in force, or is of unsound

mind or to be for any reason unfit for a licence

under this Act. So also, if it is thought necessary

for public peace or safety, the authority can

revoke such a licence. In other words, the

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parameters more or less are the same for refusal

of a licence or a revocation thereof. Reading

sub-section (7) of Section 17 indicates that a

Court convicting the holder of a licence of any

offence under the Act may suspend or revoke the

licence and the proviso therefore has to be read

in the same manner i.e. the authority for such

revocation can be considered on a conviction

being set aside only by the Court. Here was a

case where it was the licensing authority under

sub-section (3) of Section 17 thereof which

considered revoking the licence.

9. Though the judgement of Pratapbhai

Suragbhai Varu (supra) as so pressed into

service by the learned counsel for the petitioner

would certainly have a persuasive value, the

facts therein do not indicate as to the nature of

offence or the criminal charges that the

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petitioner therein was facing. What is also

evident from reading the judgement is that the

criminal case not only failed because the

witnesses were turning hostile but the matter

was compromised between the parties.

10.The facts on hand indicate that the petitioner

though licence was revoked on lodging of the

FIR under the provisions of the Indian Penal

Code was acquitted, the nature of the offences

indicate that he was accused initially for offences

under Sections 302 and 323 of the Indian Penal

Code. What is evident therefore was that the the

licence that he was armed with to put it

metaphorically used as 'licence to kill'. In the

perception of the authorities which therefore

were considering his request for setting aside

the revocation, no fault can be found with the

authorities when it came for them to consider

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whether the licence could be revoked, faced with

a situation where the arms licence that they had

provided to the petitioner was used for purposes

which led to his arraigned in an FIR under

Section 302 was serious enough not to warrant

setting aside such a revocation. A subjective

satisfaction of the authority therefore in

rejecting such a request cannot be faulted.

11. The decision in case of Vipulbhai Bhikhubhai

Gohil (supra) where the Court relied on a

decision of the Allahabad High Court, needs

reproduction and the relevant paragraphs read

as under:

"10. Learned AGP Mr. Trivedi submitted that though the applications are made by the petitioner for police protection, no untoward incident in respect of the present petitioner or in respect of the threat allegedly received by the petitioner has been reported by the petitioner or any complaint has been registered in respect of any such act by others though the petitioner has time and again expressed

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that there is a threat upon him. Learned AGP further relied upon judgment of Allahabad High Court in case of Indrajeet Singh V/s. State of U.P. and others and more particularly by relying upon paragraph nos. 16, 17 and 18 submitted that by considering the aspect of the public peace and public safety, the licensing authority is well empowered to revoke or cancel the license. He submitted that what is required to be considered by the licensing authority is overall facts and circumstances and not the instances individually.

11. Learned AGP Mr. Trivedi submitted that the decision making process is based upon the subjective satisfaction of the licensing authority and he can be said to be the best judge who can assess the situation on the basis of material available before him. It is for the petitioner to show that the decision taken by the licensing authority is perverse on the basis of material that the petitioner may produce.

12. In the instant case, according to learned AGP, except for the order of acquittal in respect of one case, out of four cases, no other material is placed on record by the petitioner and only on the basis of one acquittal, the petitioner's case cannot be considered positively and the orders passed by both the authorities cannot be said to have been passed illegal and he prayed for dismissal of this petition.

13. Except the aforesaid submissions, no

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other submissions were made by the learned advocates for the parties nor any judgments except which is mentioned in foregoing paragraph was relied upon by the advocates for the parties.

14. I have heard the submissions made by the learned advocates for the respective parties and I have also perused the record of this petition. I have also gone through both the orders which are impugned in this petition.

15. It is true that out of four cases, in respect of one case the petitioner has been acquitted whereas in respect of two cases wherein it related to petty offences, the petitioner has paid the amount of fine and trial has not yet concluded in respect of an offence which is registered under section 307 of the Indian Penal Code alongwith other relevant sections mentioned in FIR C.R. No. I - 30 of 2013 registered on 04.03.2013.

16. For revocation of fire arm what is required to be assessed by the authority is whether the license of fire arm is actually required to be given to the applicant or not, or in case of revocation or cancelltion of license whether permitting the petitioner to continue to have the licence of fire arm would endanger others or not?

17. In the instant case, even if two petty offences are discarded from the consideration, in respect of two other offences, there are two offences registered

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against the petitioner, one under sections 323, 325, 504, 506 (2) and 114 of the Indian Penal Code and section 135 of the Gujarat Police Act whereas another offfence is registered against the petitioner under section 307, 147, 148, 149, 506 (2) and section 25 (1), 1- B (a) and section 27 of the Arms Act and r/w section 135 of the Bomaby Police Act. What is required to be considered by the authority is the overall circumstances and whether the petitioner really deserves arm license or not?

18. Considering the overall facts and circumstances of the case, the authority came to the conclusion that if the petitioner's fire arm license is not cancelled, the same would be a threat to public peace and public safety. The District Magistrate, Surendranagar has specifically observed in his order that the present applicant has in the past used his license revolver for committing an offence and therefore, considering the totality of the facts and circumstances, on the basis of the subjective satisfaction arrived by the District Magistrate, Surendranagar, the order dated 04.04.2020 was passed by the District Magistrate, Surendranagar cancelling the fire arm license of the petitioner and even the appellate authority also after taking into consideration the submissions made by the petitioner confirmed the aforesaid order.

19. It is true that while considering the case of the petitioner what the Appellate Authority has observed is that there are

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three cases against the petitioner which are pending. However, there was only one case against the petitioner was pending on the date of consideration, but considering the totality of the facts and circumstances, the aforesaid order cannot be said to be illegal, arbitrary or unreasonable order.

20. More particularly, when it is submitted by learned AGP Mr. Trivedi based upon the observations made by Allahabad High Court in case of Indrajeet Singh V/s. State of U.P. and others that considering the circumstances for securing the public peace and public order, the licensing authority is empowered to suspend or revoke the arm license already given to a person and what is paramount is ensuring that public peace and public safety is not affected. In paragraph no. 18 of the aforesaid judgment relied upon by learned AGP, the Court observed as under:-

"18. The licensing authority is in the field, therefore, is the best judge who can assess the situation on the basis of material which are before him. Such an assessment cannot be substituted by this Court which is no way connected or does not have any inkling of situations. This Court cannot undertake any exercise to determine the facts leading to the subjective satisfaction of the licencing authority on the basis of situation then existing, except there are material to show as to how the satisfaction is perverse or based on no material."

21. In view of the fact that whether to grant

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license or to revoke the license or to cancel the license is the subject matter of subjective satisfaction of the licensing authority based upon the material available before the authority and therefore, this Court while exercising the powers under Article 226 of the Constitution of India cannot undertake any exercise to determine the facts looking to the subjective satisfaction of the licensing authority based on the situation and material available before him."

12. The Delhi High Court in the case of Virendra

Prasad (supra) where the Court considered

various other decisions and opined that the grant

of arms licence was a privilege formed by the

Act, there is no fundamental right of the

petitioner to hold an arm. The object is to

provide for a self defense and therefore the

police as well as the licensing authorities have to

give a judgement based on their own factual

matrix. It is purely in the domain of the

executive functions of the State. The relevant

paragraphs of the judgement read as under:

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"28. The grant of Arms license is a privilege conferred by the Act. There is no fundamental right of an individual to hold an Arm. We are not living in a lawless society where individuals have to acquire or hold Arms to protect themselves.

29. Possession of Arms today has become a status symbol. Individuals seek to possess Arms mostly for the purposes of showing off that they are influential people. Arms are even being used indiscriminately for celebrity firing at marriages etc.

30. The object of the Act is to provide a license for the purpose of holding an Arm for self-defence. License to hold an Arm is to be granted where there is a necessity for the same and not merely at the asking of an individual at his whims and fancies.

31. The local police as well as the licensing authority have not found any reason justifying grant of an Arms license to the petitioner. Even before this court no circumstances have been shown justifying grant of an Arms license.

32. The judgment in the case of SAHIL KOHLI (supra) relied upon by the petitioner does not further his case in as much as the said judgment is based on its own factual matrix and further the court had also recognized the principal that that the need for grant of a licence should be genuine. There has to be a threat perception.

33. For a need to be genuine, the applicant

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has to aver facts that would justify the same. As noticed above, the petitioner has not shown facts that would justify the necessity to possess a weapon.

34. This court in NIRANKAR RASTOGI (supra) while noticing the decision in SAHIL KOHLI (supra) rejected the application for grant of an Arms Licence in a case where the applicant was a bullion dealer and was required to carry cash to the tune of Rs. 20 Lakhs at a time. The court held that perception of threat is a question of fact that cannot be assessed by the individual himself but can only be assessed by the investigating agencies. The same is purely in the domain of executive functions and the level and scale of perception is subjective.

35. A Division Bench of this court in PARVEEN KUMAR BENIWAL (supra) held that a citizen cannot assert a right to hold a firearm licence on the ground of threat perception and as to whether there is a perception of threat to the security of a citizen has to be considered by the licensing authority and not by the courts."

13. For the aforesaid reasons, no fault can be found

with the order under challenge. The petition is

accordingly dismissed.

(BIREN VAISHNAV, J) ANKIT SHAH