Dismissed

Naresh Kumar v. State of U.P. Thru Home Secy. and 2 Others

Allahabad HC9 Nov 2021WRIC/40400/2013

Case brief

AI extract

What is this about?

Writ petition challenging cancellation of firearm license dismissed. Court held license is privilege not right. Pending criminal cases justify cancellation under Arms Act despite interim stay. Administrative authority empowered to decide public peace.

What did the court decide?

Writ petition dismissed; order of Licensing Authority and appellate authority upheld.

Naresh Kumar Vs State of U.P. Thru… — Constitutional and Fundamental Rights | Allahabad HC (2021)

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Court No. - 6

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Case :- WRIT - C No. - 40400 of 2013

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Petitioner :- Naresh Kumar Respondent :- State of U.P. And 2 Others Counsel for Petitioner :- Rajesh Yadav Counsel for Respondent :- C.S.C.

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Hon'ble Rohit Ranjan Agarwal,J.

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Heard Sri Rajesh Yadav, learned counsel for the petitioner and learned Standing Counsel for the respondents-State.

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This writ petition has been filed assailing the order dated 01.06.2012 passed by Licensing Authority cancelling the firearm license of the petitioner and the appellate order dated 13.6.2013 upholding the order of Licensing Authority.

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The facts in nutshell are that the petitioner, who is having firearm license, was issued a show cause notice on 02.08.2007 on the strength of a police report. The said notice was replied on 27.9.2007 stating therein that the firearm has not been used in Case Crime No.518 of 2006 under Section 308, 323, 324 IPC. The Licensing Authority vide order dated 01.6.2012 cancelled the license. An appeal was preferred under Section 18 of the Arms Act on the ground that against the First Information Report, lodged as Case Crime No.518 of 2006 under Section 323, 324, 308 IPC, a Criminal Misc. Application under Section 482 Cr.P.C. No.14031 of 2007 was filed before this Court and this Court vide order dated 12.7.2007 had directed that no coercive action shall be taken against the petitioner. The said appeal was thereafter rejected vide order dated 13.6.2013.

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It is contended by Sri Rajesh Yadav, learned counsel that there is only one case pending against the petitioner and after investigation, a charge sheet was submitted on 06.06.2006, which was challenged before this Court and on 12.7.2007, the Court had passed the following order:

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“Heard learned counsel for the applicant and learned AGA for the State.

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Issue notice to the opposite party No.2 returnable within 4 weeks.

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List thereafter.

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In the meantime, learned A.G.A. may file counter affidavit, if any.

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It is contended by the learned counsel for the applicant that there was no agricultural land belonging to the opposite party no. 2, therefore beginning of the incident itself is false. He further contended that originally the opposite party no. 2 owned the land there but half portion of it was released in ceiling and remaining half portion was transferred by him. Some revenue papers have been filed.

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Till the next date of listing, no coercive process shall be issued against the applicant in criminal case no. 2280 of 2007 under sections 308, 323, 324, IPC, P.S. Majhola, district Moradabad (State of U.P. Vs. Naresh Kumar Singh and others) pending in the Court of Chief Judicial Magistrate, Moradabad.”

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Learned Standing Counsel while opposing the writ petition submitted that the petitioner has not been acquitted of the charges and only an interim order has been passed wherein the Court had directed that no coercive process shall be issued against the petitioner in Case Crime No.2280 of 2007 under Section 308, 323, 324 IPC, which is pending before the Court of Chief Judicial Magistrate, Moradabad but the present proceedings are for cancellation of firearm license initiated under Section 17(3) of the Arms Act.

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I have heard counsel for the parties and perused the material available on record.

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It is well settled that possession of a firearm license is not a matter of right but is a privilege as held by a Full Bench consisting of

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five Judges of this Court in case of Kailash Nath and others vs. State of U.P. and others, AIR 1985 (All) 291 .

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The petitioner has not been acquitted of charges in Case Crime No.2280 of 2007 and this Court had only granted him protection from any coercive action while the matter is pending before the Court of Chief Judicial Magistrate. Neither he has been acquitted of the charges nor his application under Section 482 Cr.P.C. has been allowed. The present proceedings under the Arms Act are independent and separate from the criminal proceedings, which are pending against him.

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This Court cannot substitute its wisdom to the finding recorded by the Licensing Authority as to the danger of public peace and public safety, as it is for the administration who has to deal with it and to take care that the law and order is maintained in the district. The Court has to only look whether these district authorities while acting as a quasi judicial authority, act in a fair and transparent manner.

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In the present case, proper opportunity was given to the petitioner after issuance of show cause notice and reply was considered by the Licensing Authority before the license was cancelled. Petitioner has not taken any plausible ground in his appeal so as to demonstrate that there was any procedural fault on the part of the administrative authority while dealing with the matter relating to cancellation of his firearm license.

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There is no provision under the Act or in the Rules which provide that firearm license cannot be suspended or cancelled, once the licensee is acquitted in criminal cases or has been granted bail in minor cases.

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The word ''used' in Sub-clause 3 (b) of Section 17 empowers the Licensing Authority in case it finds necessary for security of public peace or public safety it can suspend or revoke the license.

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The word "public peace" as given in Concise Law Dictionary of P Ramanatha Aiyar, means ''that invisible sense of security which every man feels so necessary to his comfort, and for which all governments are instituted'. Similarly, word "public safety" ordinarily means security of the public or their freedom from danger. In that sense anything which tends to prevent dangers to public health may also be regarded as public safety.

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Co-ordinate Bench of this Court in case of Rajendra Deo Pandey Vs. State of U.P. and others, 2012 (4) ADJ 716 held as under:-

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"16. Principle of Law emanates from the judgments are that the District Magistrate has the power to suspend/revoke the firearm license on the ground of pendency of a single criminal case but he shall record the reason for the same and he is further required to record the finding that the nature of criminal case was of such type that it can endanger the peace and tranquility of the society, if the licensee is allowed to keep his weapon. For recording such finding the District Magistrate can call the report from the Police and from other source such as local vigilance etc. The District Magistrate may also call the material with regard to the family background, past antecedent of the licensee, his criminal record, if any, and general reputation of the licensee in the society.

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17. The provisions of the Arms Act cast obligation on the District Magistrate to apply his mind and consider the material before him objectively at both stages viz. while granting the license under section 13 of the arms Act exercising his power under section 17 of the Arms Act. While exercising his power under section 17 of the Arms Act he may not only rely on the Police Report of the local Police Station sent by the Junior Officer/Sub. Inspector of the Police and the advice of the 'Aslaha Babu' of his office. In large number of cases arising out of the Arms Act, Court finds that orders of the District Magistrate are perfunctory and inchoate and are based on report of Police Station concerned sometime only short

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conclusion are recorded by the District Magistrate in support of his order without disclosing any reason or application of mind.

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18. In this State, political interference is common in grant and cancellation of the arms license. These unwarranted interference are fraught with the serious consequences on the law and order situation and the safety of the citizen. A gun in a wrong hand can play havoc with the life of the citizen and happiness of the victim's family. In United States most of the States have very liberal law relating to purchase of a weapon, there are no requirement of license or even permission for purchase of a lethal weapon. A citizen can walk in arms shop and can purchase a gun of his preference just like any other grocery item. But in recent years several incident occurred whereby on indiscriminate firing students and other innocent persons were killed. Now there is a rethinking in the United States on this issue and some States are thinking to control the abuse of gun by putting restriction permissible under their local law.

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19. The Arms Act is a Central Act , it has given a wide power to the District Magistrate, it does not give power to District Magistrate to delegate his power. A perusal of various sections would indicate that it cast statutory duty on the District Magistrate to exercise his power objectively and not subjectively as there are some stray observations in some of the above mentioned decisions. Therefore, in my view it is the District Magistrate who is to consider the gravity of the offence in pending criminal case and its effect on the society. A single criminal act of a person can instill fear and insecurity in the neighbours of the licensee and the society in general. The Supreme Court in the case of Angoori Devi v. Union of India (1989) 1 SCC 385 has considered the nature of the criminal Act and its impact on public and law order. The relevant extract is being quoted herein below:-

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"12. The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of

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the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order. This is precisely the distinguishing feature between the two concepts. Sometimes, as observed by Venkatachaliah, J. in Ayya alias Ayub v. State of U.P. "What might be an otherwise simple 'law and order' situation might assume the gravity and mischief of a 'public order' problem by reason alone of the manner or circumstances in which or the place at which it is carried out." Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it."

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A law in absolute term cannot be laid down, the District Magistrate has to exercise his power on the facts of each case."

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The finding recorded by both the district authorities for cancellation of firearm license needs no interference on the ground that criminal cases are pending against the petitioner, and a single case is sufficient for proceeding to cancel the license in case the terms and conditions of the license is violated by the licensee.

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Full Bench of this Court in case of Kailash Nath and others (supra) has already held that grant of firearm license is not a matter of right but is a privilege.

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License is granted by the State with certain conditions, in case of violation of any of the condition the authorities can proceed to suspend or cancel the same under the statutory provisions of the Act.

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The grounds taken as to the stay of proceedings in Case Crime No.2280 of 2007 is of no avail, once the terms and conditions of the license is breached by the Licensee, the State has authority to proceed against him under Section 17(3)(b) of the Arms Act, if the material is on record.

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In the matters of administration of law and order it is for the district authorities to see that how the public peace and safety is maintained. The Courts should refrain themselves from interfering in

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such administrative orders and sub-plant wisdom to the administrative decisions taken on the basis of the reports and other material placed on record for maintaining the law and order.

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The Courts can only interfere where there are procedural lapses or the principle of natural justice has been violated or fundamental right of any citizen is violated. As it has already been held by this Court that possession of a firearm license is not a matter of right but it is a privilege granted by the State, the licensee can only pray for restoration of his license.

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Considering the aforesaid facts and circumstance of the case, I find that as criminal cases are pending against the petitioner, the order passed by the Licensing Authority as well as the appellate authority needs no interference by this Court.

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Writ petition fails and is dismissed, accordingly.

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Order Date :- 9.11.2021 Kushal

Naresh Kumar v. State of U.P. Thru Home Secy. and 2 Others

Case brief

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Naresh Kumar v. State of U.P. Thru Home Secy. and 2 Others

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