Disposed

Vineet Kumar v. State of U P and Another

Allahabad HC27 Oct 2018WRIC/35803/2018

Case brief

AI extract

What is this about?

This court disposed of a writ petition challenging the cancellation of a firearm licence. Without deciding the merits regarding the criminal implications, the court directed the petitioner to file a fresh application under relevant Government Orders. The licensing authority was directed to consider and decide the application via a speaking order within six months.

What did the court decide?

Directed petitioner to file fresh application; Authority to decide via speaking order within six months ignoring earlier order.

Vineet Kumar Vs State of U P and Another — Specific Performance | Allahabad HC (2018)

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Court No. - 18

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Case :- WRIT - C No. - 35803 of 2018 Petitioner :- Vineet Kumar Respondent :- State Of U P And Another Counsel for Petitioner :- Shashi Kumar Mishra Counsel for Respondent :- C.S.C.

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Hon'ble Mahesh Chandra Tripathi,J.

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Heard Shri S.K. Mishra, learned counsel for the petitioner and Shri B.B. Pandey, learned Additional Chief Standing Counsel for all the respondents.

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This writ petition has been filed against the order dated 16.12.2013 passed in Case No.52/39/2013 under Section 17 of Arms Act (State vs. Vineet Kumar), by which petitioner's firearm licence was cancelled by the District Magistrate, Kasganj.

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Learned counsel for the petitioner has submitted that only on account of the fact that the petitioner was implicated in a criminal case numbered as Case Crime No.68 of 2011 under Sections 376, 294, 506 IPC and 4/6 of POSCO Act, his firearm licence was cancelled on 16.12.2013. He has submitted that mere pendency of criminal case or apprehension of abuse of firearms is not a sufficient ground for passing of an order of suspension or revocation under Section 17 of Arms Act. There is no allegation or charge against the petitioner that he has misused his weapon. There was no finding arrived at by the Licencing Authority that the possession of the firearm by the petitioner was endangering public peace and safety. He further apprises to the Court on the basis of paragraph-4 of the writ petition that in the aforesaid criminal case, the petitioner has already been acquitted by the trial court vide its judgement and order dated 20.9.2017. He further apprises to the Court that the impugned order was passed way back in the year 2013 and at no point of time the same was assailed by the petitioner by preferring an appeal under bonafide impression that the order would be recalled by the authority concerned. He has also informed that there were certain discrepancy regarding description of the gun and in the aforesaid case the correction application has also been moved and the same was carried out on 29.12.2017. At this stage, once the petitioner has already been acquitted in the aforesaid criminal case then in such situation the petitioner should not be relegated to the alternative forum to file the appeal. The request has been made that the leave may be accorded to move fresh application in terms of Government orders dated 09.05.2014, 15.7.2016 and 8.10.2018.

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Per contra, learned Additional Chief Standing Counsel has tried to support the impugned orders for the reasons stated therein and vehemently opposed the writ petition on the ground that once the petitioner has been implicated in the aforesaid criminal case, then the authority had rightly proceeded to cancel the firearm licence of the petitioner. The authority, while conferring the licence, had every right to scrutinize the credential and other details of the person as per the Arms Act. The administrative authorities are bound to take appropriate action in the matter of grant of licence and also its cancellation for the purpose of maintaining peace and harmony in the society. It is well settled that the assessment of the administrative authorities with regard to grant of licence or cancellation of licence should not be interfered with by the Court in its extraordinary jurisdiction unless the same is so illegal or arbitrary so as to prick the conscience of the Court. He further makes submission that vide Government order dated 09.05.2014 and the amended Government orders dated 15.7.2016 and 8.10.2018 for grant of firearm license, the prescribed proforma/procedure has been provided to be filled up/followed by the applicant and as such, petitioner shall approach the Authorities by moving an application in the prescribed proforma, which will be considered and decided expeditiously.

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The controversy involved in the present writ petition has been decided by this Court in Writ Petition No.16565 of 2012 ( Dinesh Kumar Pandey Vs. State of U.P. & Ors .) connected with Writ Petition No.15883 of 2012 ( Rajesh Pandey Vs. State of U.P. & Ors. ) on 25th July, 2012 and this Court examined in detail the provisions of the Act dealing with grant/refusal of firearm licence. In the said case, the District Magistrate had rejected the applications filed by the petitioners for grant of firearm licence on the ground that they failed to specify any special threat to personal security and had also not disclosed extraordinary circumstances which may justify the necessity of keeping the firearm with them. The Court after examining Sections 13 and 14 of the Act observed as follows:-

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"52. The grant or refusal of licence by licensing authority is not his absolute discretion but is further subjected to other provisions of Chapter III. It takes the Court to sub-section (3) of Section 13 and Section 14. Subsection (3) of Section 13 obliges the licensing authority to grant a licence if the conditions contemplated therein exist and are satisfied. One of such contingencies is, where the person applying for grant of licence under Section 3 wants to possess or carry a smooth bore gun having a barrel of not less than twenty inches in length. Here it refers to the kind of weapon which the applicant seeking licence intends to possess or carry. The second part of this clause, i.e., sub-section (3)(a)(i) is the user of such weapon. It must be either for protection or sport or in respect of muzzle loading gun to be used for bona fide crop protection. There are three kinds of purposes

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and objectives provided; and one of it is protection. If an applicant seeks a licence in respect to a weapon, i.e., smooth bore gun having a barrel of not less than twenty inches of gun for protection, the licensing authority is obliged to grant such licence under Section 3 of Act, 1959. Similarly, if the aforesaid kind of weapon is required for sport the licensing authority is to grant it and it is mandatory. The third is a different kind of firearm, namely, a muzzle loading gun and if it is required for bona fide crop protection, the licence under Section 3 shall be granted. Proviso to subsection (3)(a)(i) of Section 13 gives a discretion to licensing authority where the licence is required for bona fide crop protection, that instead of muzzle loading gun if he finds that it is not sufficient for crop protection, he may, in that case, grant licence in respect of any other smooth bore gun having a barrel of not less than twenty inches in length for such protection. In the present time, this provision is virtually otiose and redundant.

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The next clause, i.e., sub-section (3)(a)(ii) of Section 13 obliges licensing authority to grant licence under Section 3 in respect to a point twenty two bore rifle or an air rifle if sought to be used for target practice by a member of a rifle club or rifle association, licensed or recognised by Central Government.

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Sub-section (3)(b) of Section 13 talks of residuary cases and provides that in a licence under Section 3 in any other case which necessarily would mean that the cases not covered by sub-section (3)(a) and in respect to licences under other provisions of Chapter-II, namely, 4, 5, 6, 10 or 12, he shall grant the same if he is satisfied that the person by whom licence is required had a "good reason" for obtaining the same. The word "good reason" obviously has not been defined under the Act 1959. It is this phrase which leaves a very wide area of discretion or scope of consideration upon the licensing authority which has been used in various ways and construed to the level of an absolute and unbridled discretion and sheer subjective satisfaction of licensing authority to decide whether the licence should be granted or not.

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Now I come to Section 14 which provides certain conditions, existence whereof makes it obligatory upon licensing authority to refuse grant of a licence. This is a negative provision restricting power of licensing authority and making obligatory for him to deny licence, if conditions therein are satisfied.

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The rigour of this provision is writ large from the fact that it has been given overriding effect over Section 13, meaning thereby, if the situation contemplated in Section 14 exists and even if something under Section 13 comes in favour of person seeking licence, the licensing authority would have no option but to refuse to grant a licence. However, a complete reading of Section 14 reveals that heading of provision is "refusal of licences" but it contains two types of situations, one, where refusal is mandatory, and, secondly, the conditions on the basis whereof refusal shall not be founded. It also controls the procedure i.e. the contents of the order of the licensing authority if he refuses to grant a licence.

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Then comes residuary kind of provision, namely, sub-section (1)(b)(ii) of Section 14 which provides, if licensing authority deems necessary for "security of public peace or for public safety" in that case also, he shall refuse grant of licence under Sections 3, 4 or 5 in respect of nonprohibited arms or non-prohibited ammunition.

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Lastly, sub-section (3) of Section 14 protects from a sheer arbitrary and whimsical exercise on the part of licensing authority in denying licence, by making it obligatory upon him to record, in writing, "reasons" for refusal. This provision is in two parts. Recording of reasons for refusal of grant of licence is mandatory and this is one condition which cannot be ignored, omitted or dispensed with. The second aspect is, the communication of such reasons to the concerned person. Statute says, if the person who has been refused grant of licence, so demands, a brief of statement of recorded reasons shall be supplied to him. This is the general requirement of statute but an exception is where the licensing authority forms opinion that communication of those reasons shall not be in public interest, it may not convey those reasons to the person concerned. Subsection (3) of Section 14 incorporates within itself the observance of one of the principle of natural justice, making application of mind and consideration of application on the part of licensing authority objective, so that no decision may be taken in a sheer arbitrary manner. The principle of speaking order is incorporated herein.

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I have no hesitation thus in observing that a cumulative and harmonious reading of Sections 13 and 14 leave no manner of doubt that an objective consideration is mandated on the part of licensing authority. He cannot deny grant of license to a person on his sheer whims, caprices, imagination etc. Here it answers the requirement of reasonableness also. The procedure is consistent with the requirement of principle of natural justice. To some extent, it brings into consideration Article 14 of the Constitution. One cannot say that under the garb of the words, "any reason", "unfit for grant of licence", or the absence of a "good reason" for obtaining license, a licensing authority is empowered to deny licence on sheer flimsy grounds, namely, he will grant it only to those who have white hair or blue eyes or having a particular height and like. Similarly, the licensing authority cannot discover within "good reasons" for obtaining licence certain ex facie absurd reasons, namely, if a person belongs to a particular political party, or, that a person if belongs to a particular class or caste, and so on. These considerations are impermissible and cannot be construed a "good reason". In the garb of "good reason" for obtaining licence, one also cannot stretch to a situation which would be virtually impossible to be performed or placed on record.

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Licensing and appellate authority both have held that the applicant could not show as to what is the special threat which may justify a firearm licence for their personal safety and security. Learned Chief Standing Counsel could not show any provision under the Act which contemplates that firearm licence can be granted only when a person has special kind of threat perception to his life. The term "special threat" is extremely vague and even the learned Chief Standing Counsel could not explain it. This Court required him to tell as to how a person can predict when, where and at what time and from whom his person and property can be or shall be put in peril. Such a forecast is almost impossible. If one would have known a definite threat and plan, as a prudent citizen, he would immediately approach the police making a complaint and thereafter it shall be responsibility of the State to take appropriate action so that such person or planner may not achieve his vicious goal by committing crime but when the firearm licence is required for personal safety in general, the individual's perception of threat to their life and property has to be considered taking into account general law and order situation in the area, nature of his job and various other factors. It is only a kind of keeping

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oneself in the State of readiness in case such an exigency of assault etc. on a person and property arises and not otherwise.

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I specifically required the learned Chief Standing Counsel to explain as to what particulars an applicant must disclose along with his reason of personal safety and security so as to constitute a "good reason" but he failed to give even a single instance in this regard. Very fairly he said that even the concerned officers were not able to tell anything.

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In my view, the phrase "good reasons" cannot be re-termed to make it "extraordinary reasons", "very good reasons", "outstanding reasons", "extra reasons", etc. When legislature has used certain words, the same must be read, interpreted and applied in their ordinary sense unless such an application renders the provision ambiguous, impracticable or results in wholly unwarranted consequences. It is not the case of respondents that the term "good reason", if read in its ordinary meaning any of such thing is likely to occur. Therefore, the circumstances which would be covered by phrase "good reasons", cannot be excluded in any manner by restricting the aforesaid phrase to a different kind of situation, and that too, either on volition and arbitrary discretion of individual officials or in the hands of Government by issuing an executive order.

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At this stage, learned Chief Standing Counsel instead of replying to the specific query of the Court directly referred the Government Circulars/orders issued from time to time, filed as Anenxure CA-1 CA-4 to counter affidavit sworn by Sri Hrishikesh Bhaskar Yashod, presently, District Magistrate, Deoria, to contend that it is in the light of guidelines provided therein that licences are not granted to possess or carry a firearm licence unless the licensing authority finds with certainty an imminent apprehension of danger to one's life and liberty.

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Thus at the pain of repetition, I may say that my reading of the aforesaid Government Orders shows that if an applicant of firearm licence is able to show the existence of factors as enumerated above, he must be granted a firearm licence and should not be denied unless there are other relevant factors regarding his conduct etc. The aforesaid Government Orders however, nowhere prohibit that in cases which are otherwise within the domain of Section 13 of the Act and fulfil all requisites therein, still they shall not be granted licence unless what has been stated in the aforesaid Government Order(s) is found to exist. I am constrained to observe further that any other view of the matter would render the aforesaid Government Orders ultra vires of Act 1959 for the reason that even the Government by issuing an executive order cannot add or diminish the power of licensing authority which has to be exercised in accordance with Sections 13 and 14 of the Act 1959. Moreover, there is no provision, at least, none has been shown to this Court under Act 1959 which empowers the Government to issue such an executive order so as to control statutory consideration of licensing authority. The efficacy of a statute cannot be expanded or restricted by an executive order."

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(emphasis supplied)

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In the facts and circumstances, without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case, this writ petition is disposed of finally with a direction that in case petitioner approaches to the

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Authority concerned within a period of two weeks from today by way of filing fresh application for grant of firearm licence in the way and manner as has been provided in the G.Os. dated 09.05.2014, 15.7.2016 and 8.10.2018, the Competent Authority would consider and decide the same by a speaking order, ignoring the impugned orders, within a period of six months from the date of production of a certified copy of this order before him.

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Order Date :- 27.10.2018 RKP

Vineet Kumar v. State of U P and Another

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Vineet Kumar v. State of U P and Another

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