Gagan Chandra Majhee And Another ... vs District Magistate U.S.Nagar And ...
2022 Latest Caselaw 2178 UK

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


            Writ Petition (M/S) No. 2431 of 2020


Gagan Chandra Majhee and another            .......... Petitioners

                               versus

District Magistate U.S.Nagar and another ......Respondents



Ms. Prabha Naithani, learned counsel for the writ applicants.
Mr. Suyash Pant, learned Additional Government Advocate for the
State.

                            -----------

                  Judgement dated: 20.07.2022

Hon'ble Sanjaya Kumar Mishra, J.

Upon hearing the learned counsels, the Court made the following Order.

1. By filing this writ application, the petitioners have prayed for issuance of a writ in the nature of certiorari quashing the order dated 06.11.2020 (Annexure-8), passed by the District Magistrate, Udham Singh Nagar. A further prayer has been made to command the respondent no.1/District Magistrate, Udham Singh Nagar to issue Arm license to the petitioners for carrying a Fire Arm pursuant to the Arms License Application No 1245/14 & 1276/03 and Arms License Application Nos. 1276/13 & 1276/02 within stipulated time.

2. It is not disputed that the petitioners filed Arm License Applications No. 1245/14 and 1276/03

and Arms License Application No. 1245/13 & 1276/02, respectively. Thereafter, the District Magistrate, Udham Singh Nagar called a report from the Senior Superintendant of Police (SSP), Udham Singh Nagar. The SSP, Udham Singh Nagar, in turn directed the Sub Inspector, Chowki Shaktifarm, Sitarganj to make a filed inquiry and submit a report to him. The said Sub Inspector of Police reported on 21.10.2020 that the proceeding under Sections 107, 116 and 116(3) of the Code of Criminal Procedure, 1973, is pending against Gagan Chandra Majhee and others. The SSP submitted a report of "not recommended". On the basis of such a report, the petitioners' application was rejected by the learned District Magistrate, Udham Singh Nagar. In his order, the learned District Magistrate also took into consideration that the averments made by the petitioners in their applications that they have received threat of their life is not fortified by any supporting documents like any FIR against other persons and that the petitioners are residing in a locality which is plush area and is guarded 24 hours by Guards, so there is no threat to the petitioners and hence they are not entitled to carry a gun. Therefore, their applications were rejected.

3. In the case of Ganesh Chanra Bhatt vs. District Magistrate, Almora, AIR 1993 All 291, the Hon'ble Allahabad High Court has held that a licence for Fire Arm cannot be rejected merely

on the ground of implication of the applicant in petty offence or on the basis of a false FIR nor the licence can be cancelled or suspended. The Hon'ble Allahabad High Court further held that licence for non-prohibited arm shall ordinarily be allowed with an exception in case of harden criminals or those involved in horrendous crimes while the licence for prohibited arms shall not be allowed. The Patna High Court in the case of Kapildeo Singh vs. State of Bihar, AIR 1987 Pat.122, has held that the law mandates refusal, grant licence even if the applicant has did not follow the procedure where the licensing authority has reason to believe that he is, for any reason unfit for the licence under the Act. Unfit is used in the context of heavy criminal or those involved in horrendous crimes.

4. Learned counsel for the writ applicant placed reliance upon a judgment of Hon'ble Kerala High Court in WP © No. 25573 of 2018, reported in 2018 SCC Online Ker 5359. Para 8, 9 and 10 of the judgement are being quoted herein below:

"8. Having considered the contentions advanced on either side, I am of the opinion that reasons stated for non-consideration of the application preferred by the petitioner for renewal are not W.P.(C).No.25573/18 the reasons which are referable to Section 14 of the Act. There is no finding that the petitioner is unfit for holding the licence under the Act.

9. This Court has repeatedly held that the only reasons for rejection of an application for renewal of licence would be that the issuance or

the renewal is prohibited by the Arms Act. The applicant is a person of unsound mind and that he is for any reason unfit for a licence under the Act. The decisions of this Court reported in Ganesh Prasad v. Board of Revenue [2005 (2) KLT 645], Muhammed Shafi v. District Collector [2012 (1) KLT 427], Chandran Nair v. Additional District Magistrate [2015 (1) KLT 41] and Jose Kuttiyany v. Land Revenue Commission [2015 (3) KHC 831] are some of the decisions on the said point.

10.In the instant case, there is no finding that the petitioner in any way unfit to hold the licence. The reasons mentioned in Exhibit P7 order rejecting the renewal of application that the petitioner has not shown the need for a licence is not a reason referable to Section 14 of the Arms Act. The rejection of the W.P.(C).No.25573/18 application for renewal is, therefore, completely untenable."

5. Section 14 of the Arms Act, 1959 provides for refusal of license, reads as follows: "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 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."

A harmonious reading of this provision reveals that a licence under Sections 3, 4 & 5 with respect to any prohibited arms shall be refused. A license in any other case under Chapter-2 of the Arms Act, can be refused by the licensing authority, where such licence is required by a person whom the licensing authority has reason to believe:

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

(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 of such licence.

6. Thus, the statute provides the ground for which a licensing authority can refuse to grant a license to carry firearm. Thus, it is also not disputed that a proceeding under Section 107 which was pending before the learned S.D.M. be in fact pending and adverse order has been passed against the petitioners. In that view of the matter, the Licensing Authority committed improper exercise of jurisdiction vested upon it. and have acted in an unreasonable manner in the sense that they have taken into

consideration certain factors which were not germane for deciding whether to grant or refuse a licence to carry arms. Therefore, this Court is of the opinion that the order passed by the learned District Magistrate, Udham Singh Nagar (Annexure-8) to the writ application is liable to be quashed. Accordingly, the same is quashed.

7. The writ petition is allowed. The opposite party no.2 is directed to grant the Arm Licence to any one of the petitioners within 30 days from today but the District Magistrate shall take into consideration that any information regarding involvement of the present petitioners in the meanwhile, i.e., the time period after the rejection order and the date of passing of this Order, in any horrendous or serious crimes. For the purpose of satisfying himself, the District Magistrate may call for a report from the Senior Superintendant of Police, Udham Singh Nagar in his discretion and the Senior Superintendant of Police, Udham Singh Nagar, if a report is called for shall submit a report to the District Magistrate within seven days.

There shall be no order as to costs.

(S.K.Mishra, J.) (Grant urgent copy of this order as per Rule)

Kaushal