Shri. William Richmond Marbaniang vs State Of Meghalaya
2024 Latest Caselaw 263 Meg

High Court of Meghalaya

Shri. William Richmond Marbaniang vs State Of Meghalaya on 13 May, 2024

Author: W. Diengdoh

Bench: W. Diengdoh

 Serial No. 01
 Regular List

                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG
WP(C) No. 382 of 2023
                                              Date of Decision: 13.05.2024
Shri. William Richmond Marbaniang
S/o (L) T.S. Richmond
R/o Wind Crest, Nongrimbah Road,
House No. 39, Shillong,
East Khasi Hills District, Meghalaya                  :::::    Petitioner
                                  -Vs-

1.     State of Meghalaya,
       Represented by the Chief Secretary,
       Government of Meghalaya.
2.     State of Meghalaya,
       Represented by the Secretary,
       Home Department, Government of Meghalaya.
3.     District Magistrate,
       East Khasi Hills, Shillong,
       Meghalaya.                                     :::::    Respondents
Coram:
                 Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :       Mr. N. Khera, Adv.
For the Respondent(s)             :       Mr. S.A. Sheikh, GA.
i)     Whether approved for reporting in                       Yes/No
       Law journals etc.:

ii)    Whether approved for publication
       in press:                                               Yes/No




                                      1
                            JUDGMENT

1. Facts of the case as could be seen from this petition is that the

petitioner herein was an Arms Licence Holder of 2(two) firearms, being

a Cogswell and Harrison (0.12 Bore DBBL Gun) and one .22 Bore Rifle,

made in Belgium FNB. Licence for such arms was issued by the

competent authority on 20.10.1998 being number LN23434A21119.

2. The said licence was supposed to be renewed every three

years which was done so till 01.01.2019 valid upto 31.12.2021,

whereupon, the petitioner has then submitted the licence in the Office of

the District Magistrate, East Khasi Hills District, Shillong for the process

of renewal of the same.

3. The petitioner was then communicated vide order No.

AE.23/32/2019/45, dated 19th May 2023 issued by the District

Magistrate, Shillong that his application for renewal was rejected on the

ground that he is said to be involved in Rynjah P.S. Case No 16(03) of

2007 under Section 302 IPC and that the same will be renewed till such

case is dropped or dismissed by the court.

4. The petitioner then filed a representation dated 05.06.2023

before the Deputy Commissioner/respondent No. 2 which was not

responded to, compelling the petitioner to file another representation

dated 20.07.2023 which was also not responded to, upon which the

petitioner filed an appeal, dated 28.09.2023 before the respondent No.

2/Secretary, Home Department.

5. It was only after a number of representations and the appeal

being filed did the respondent authority act upon the petition of the

petitioner and vide communication dated 07.10.2023 issued by the

Office of the District Magistrate, East Khasi Hills District, Shillong, has

rejected the prayer for renewal of the said Arms Licence and has also

directed that such Arms be deposited at the Laitumkhrah Police Station

which was done so by the petitioner. Situated thus, the petitioner has

now approached this Court with this instant writ petition.

6. Mr. N. Khera, learned counsel for the petitioner has

submitted that the petitioner is a retired IPS Officer who had served the

State for about 36 years or so, lastly in the capacity of the Director

General of Police. Though, it is admitted that he is facing prosecution in

connection with Sessions Case No. 76 (T) of 2013 under Sections

201/203 IPC before the Court of the Additional Sessions Judge,

Shillong, it is however vehemently denied that he is actually involved in

Rynjah P.S. Case No. 16(03) of 2007 under Section 302 IPC.

7. The learned counsel has also submitted that the grounds

relied upon by the relevant authority for suspending the said Arms

Licence of the petitioner is that he is involved in the said Rynjah P.S.

Case No. 16(03) of 2007 and Section 14(3) read with Section 17(3) of

the Arms Act, 1959 was invoked to justify the said action.

8. It is however submitted that since the initial issuance of the

licence in the year 1998 till date, in fact, since the year 2007 when the

petitioner is facing trial in the said criminal cases, there is nothing in

evidence to prove that the petitioner is unfit to hold the said licence and

also that by having such license, he is a threat to public peace and safety.

Nothing in the impugned order was reflected that there was a proper

application of mind by the relevant authority and no show cause or

hearing was ever allowed to be presented by the petitioner.

9. The impugned orders have been passed in a mechanical

manner without any application of judicious mind by the issuing

authority, and considering the grounds and provisions of law invoked

while suspending or refusing to renew the licence of the petitioner, no

speaking order as is mandated under Section 17(5) of the said Arms Act,

was passed to justify such action taken, further submits the learned

counsel.

10. While referring to the affidavit-in-opposition filed by the

respondent No. 3, the learned counsel has submitted that at para 7 and 9

of the same, the respondent No. 3 has averred therein that exclusive

discretion lies with the District Magistrate who can exercise such

discretion either to grant renewal or reject such application based on

compelling circumstances and in the case of the petitioner, it was done

so keeping in mind the aspect of public peace and security. Another

reason cited is that the criminal cases pending against the petitioner only

shows his criminal background, such reasons being the cause of the

exercise of discretionary power of the issuing authority in denying

renewal of the said licence. This, according to the learned counsel is a

demonstration of an illegal and arbitrary action on the part of the issuing

authority without any basis whatsoever.

11. In support of his contention, the learned counsel has cited the

following judgments:

i) Ajay Jayawant Bhosale v. Commissioner of Police,

Pune City & Ors, SCC OnLine Bom 5019, para 13;

ii) Ashok v. State of Maharashtra, 2018 SCC OnLine Bom

70, para 14 & 15;

iii) Yaru Khan v. State of Raj & Ors, 2022 SCC Online Raj

2511, para 2.

12. Per contra, Mr. S.A. Sheikh, learned GA appearing for the

State respondents has submitted that the facts as is stated are correct to

the extent that the petitioner's Arms Licence was issued to him way back

many years ago and was renewed from time to time, the validity of the

last extension was till 31.12.2021. That the petitioner has applied for

renewal of his said licence is also on record. However, on receipt of such

application for renewal, the District Magistrate has sought for a report

from the competent authority, that is, the Superintendent of Police, who

has then filed his report indicating that the petitioner is facing trial in a

criminal court for an offence under Section 302 IPC connected to Rynjah

P.S Case No. 16(03) of 2007.

13. On consideration of the said report received, the issuing

authority has then rejected the application for renewal of the Arms

Licence of the petitioner. It is not a case of revocation or cancellation of

the said licence since the licence is still with the petitioner, however, the

condition is that as and when the said criminal proceeding is closed, the

application will be considered then, submits the learned GA.

14. The learned GA has clarified that although, the impugned

order uses the word suspension, the fact remains that it is not a case of

suspension of the said licence of the petitioner, since suspension or

revocation or even cancellation would take place only if an adverse

finding or report is found against the licence holder during the validity

period of such licence, for which a show cause notice and thereafter

passing of a speaking order is required, which is not the case herein.

15. The learned GA has also led this Court to the provision of

Section 15 of the Arms Act, 1959 to submit that the said provision

speaks of renewal of a licence, wherein under Sub-Section 3 of the said

Section, it is provided that the provisions of Sections 13 and 14 which

provide for grant of licence, the same process for renewal of a licence

shall also be followed. Under Sub-Section 3 of Section 14, power is

entrusted to the licensing authority to refuse to grant, and in this case, to

renew the licence for which reasons for doing so shall be furnished to the

applicant. The fact that the refusal to renew the licence of the petitioner

on account of the said police report has therefore satisfied the relevant

provisions of law and hence, no show cause notice or even a speaking

order is required to be passed.

16. To buttress his contention, the learned GA has relied on the

following cases:

i) Bharatial R. Halwai v. State of Goa & Anr, 1999 SCC

Online Bom 50, para 3, 4 & 5;

ii) Md. Ziya Osman Qureshi v. State of Maharashtra & Ors,

2014 SCC OnLine Bom 4647, para 2, 6, 8, 9, 10, 11, 12

& 14;

iii) Chamal Lal Sharma v. State of Himachal Pradesh & Ors,

2020 SCC OnLine HP 1844, para 12.

17. This Court has given careful consideration to the submission

and contention of the parties. A perusal of the impugned order, would

show that upon receipt of the application for renewal of the Arms

Licence of the petitioner, the respondent No. 3/District Magistrate had

sought for a police report in this regard. The police report would indicate

that the petitioner is involved in Rynjah P.S. Case No. 16(03) of 2007

under Section 302 IPC. Apparently, on consideration of such police

report, the District Magistrate had deemed it fit and proper to exercise

his discretion by refusing to renew the said licence and had called upon

the petitioner to deposit the Arms in question at the respective police

station.

18. From the impugned order, what is apparent is that the

provision of Section 14 Sub-Section 3 as well as Section 17 Clause (b) of

Sub-Section 3 has been taken recourse to. The said provisions are set out

herein below:

"14. Refusal of licences.―(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.―(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence―

(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".

19. The licensing authority by citing Sub-Section 3 of Section 14

in the impugned order, the same would be taken as an admission that the

renewal of the licence of the petitioner has been refused, the provision

also provides that a brief statement of the reasons for such refusal shall

be furnished to the licence holder. Apparently, what has been stated in

the impugned order which can construed as the reason for such refusal is

the fact that the petitioner is involved with Rynjah P.S. No. 16(03) of

2007 under Section 302 IPC.

20. There is no indication to conclude that the licensing authority

had applied its subjective discretion, inasmuch as, except for a bald

statement that the petitioner is involved in the said Rynjah P.S. Case,

nothing is said about how he is involved in the case and as to whether he

is the only accused in the said case or that he is one of the co-accused, in

case there are more than one accused persons. This statement was also

contradicted by the petitioner who has asserted that he was never

involved in the said Rynjah P.S. Case. At the most, he has admitted that

he is involved in another criminal case, the offence being one under

Sections 201 and 203 IPC, which are comparatively less heinous or are

not so grave in nature as a case under Section 302 IPC.

21. In fact, when the matter was argued by the parties, this Court

had made a pointed query to the learned GA for the State respondent to

furnish the details of the said Rynjah P.S. Case, but the answer was not

forthcoming. Therefore, in the absence of credible evidence in this

regard, it may be assumed that the petitioner is not at all involved in the

said criminal case aforementioned. Accordingly, inference may be drawn

to conclude that the licensing authority had failed to apply its judicious

discretion in the passing of the impugned order.

22. In this context, reference to the case of Ganesh Chandra Bhatt

v. District Magistrate, Almora & Ors reported in AIR 1993 Allahabad

291 can be made, the same being relatable to the subject matter. At para

63 and 64, the Hon'ble Allahabad High Court has observed as follows:

"63. Very often arms licences are refused or

cancelled or suspended on arbitrary or untenable grounds. For example, sometimes an arm licence is refused on the ground that there are already some arms licences in the village and hence it would not be expedient to grant any more licences to people of that village. This is wholly arbitrary and illegal, since existence of some licences in the village can hardly be a reasonable ground to deny one a licence. In fact, it would amount to creating a monopoly in favour of existing licencees.

64. Similarly, sometimes arms licences are suspended/cancelled on the ground of involvement in a petty crime like Sec. 323, 324 or 325, I.P.C. or proceeding under Section 107/117 or Section 145, Cr.P.C. This again is not a valid ground for impounding/cancelling or refusing to grant an arms licence. It is only where one is accused of a heinous crime or is a hardened criminal that such action can be taken."

23. Again, it may not be out of place to refer to the case of

Kapildeo Singh v. State of Bihar & Ors reported in AIR 1987 Patna 122,

wherein the full bench of the Hon'ble High Court of Patna answering a

reference, viz; Would the registration and pendency of a criminal case

for a major or capital offence justify the suspension or revocation of a

licence under Clause (a) of sub-section (3) of Section 17 of the Arms

Act. The High Court though, answering the reference in the affirmative,

the observations made therein at para 11 would be relevant to the subject

matter discussed herein, the extract of which is reproduced herein below:

"11. A strong note of caution, however, must be sounded in this context. It is not the pendency of any and every criminal case which would inflexibly warrant the suspension or revocation of a licence validly granted. A criminal case may range from a paltry traffic offence to the most horrendqus capital crime. Whilst the pendency of the former may hardly provide an adequate basis under Section 17(3), in the case of the latter after notice and hearing of the explanation such action may well become necessary. Equally, the use or employment of the licensed weapon in the alleged crime might well be a relevant and added factor for consideration in the exercise of the discretion by the licensing authority. There is no gainsaying that licensed weapons are not to be allowed to degenerate into crime weapons. It bears repetition that sub-section (3) puts the matter in the subjective satisfaction of the licensing authority and inevitably the issue cannot be put in the procrustean bed of a precise definition or an exhaustive enumeration of situations in which such discretion may be exercised."

24. The learned GA had reiterated that though, the word

"suspended" has been used in the impugned order, in fact, what is meant

is that the said licence of the petitioner is refused to be renewed and

therefore, it is the case of non-grant of renewal and not suspension. If

this submission is to be accepted, the reference to Section 17(3)(b) of the

Arms Act, 1959 in the impugned order is misplaced and cannot be

resorted to, to refuse renewal of the Arms Licence of the petitioner.

However, even if for discussion's sake, this Court look into the letter of

the provision of Clause (b) of sub-section (3) of section 17, such

provision speaking of suspension or revocation of licence in view of

security of the public peace or for public safety, looking into the

antecedent of the petitioner, having been a very senior police officer,

who had once held the post of Director General of Police of the State, it

would absurd to assume or even to contemplate a situation where his

possession of licensed arms would be a threat to public peace and safety.

25. The case of Ajay Jayawant Bhosale(supra) cited by the

petitioner at para 14 of the same, the Hon'ble High Court of Bombay in

the context therein had observed as follows:

"14. Nothing was placed before us by the respondents to indicate that the petitioner had misused the licenced weapon at any point of time in past. The order of revocation of license refers to two criminal cases registered against the petitioner. In the facts we find that mere registration of criminal case/cases could not be a ground to revoke the license. The order shall indicate clearly that continuance of licence would be against public peace, safety and security."

26. The case of Ashok(supra) also cited by the petitioner and the

relevant paragraphs at 13, 14 & 15 referred to need not be elaborated as

the contextual aspect of the same has been discussed hereinabove.

Similarly, the case of Yaru Khan(supra) speaks more or less of the same

proposition.

27. The case of Bharatlal R. Halwai(supra) cited by the learned

GA for the State respondent speaks of rejection of renewal of the Arms

Licence on the basis of adverse police report. Also in the case of Md.

Ziya Osman Qureshi(supra), the Hon'ble High Court of Bombay after

hearing the parties on the subject has come to the conclusion that the

concerned authorities taking note of the criminal case pending against

the petitioner therein, and on finding that a speaking order have been

passed while coming to such findings, the licence of the petitioner was

not renewed. This is however not the case as far as the facts and

circumstances in this instant petition is concerned. The case of Chamal

Lal Sharma(supra) also cited by the learned GA is found not relevant.

28. On an overall analysis of the facts and circumstances and the

law in this regard, this Court is of the considered opinion that the

impugned order has been passed without any application of mind and

hence, is deemed to have been arbitrarily done so to the detriment of the

petitioner's cause.

29. This being the case, this Court hereby finds that the impugned

order dated 19.05.2023 and the related appellate order dated 07.10.2023

cannot stand the scrutiny of law, the same are accordingly set aside and

quashed.

30. The petitioner is however directed to file a fresh application

for renewal of his firearms and the licensing authority is to consider the

same in accordance with law and related rules in the light of the

observations made hereinabove. Needless to say, if the law of limitation

applies to such proceedings, such period may be considered as

condoned.

31. With the above-noted directions, this writ petition is

accordingly disposed of. No costs.

Judge

Meghalaya 13.05.2024 "D. Nary, PS"