Allowed

Sanjib Kumar Barua v. the State of Assam and 5 Ors.

Gauhati HC4 Mar 2021WA/48/2021

Case brief

AI extract

What is this about?

High Court allowed Writ Petition challenging rejection of NPB revolver licence. Court held rejection based solely on lack of perceived threat to militants is invalid for non-restricted arms. Licencing authority directed to grant license unless antecedents are adverse, issue fresh police report, and pass speaking order within 8 weeks.

What did the court decide?

Licensing authority directed to consider application afresh, obtain fresh police report, and pass speaking order granting licence or rejecting within 8 weeks.

Sanjib Kumar Barua Vs the State of Assam and 5 Ors. — Money Laundering | Gauhati HC (2021)

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GAHC010014542021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA/48/2021

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SANJIB KUMAR BARUA

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S/O- LATE KAMAL CHANDRA BARUA, R/O- JAYANAGAR, NEAR TANGRA SATRA, H/NO. 95, P.S. DISPUR, GUWAHATI, DIST.- KAMRUP (M), ASSAM, PIN- 781022.

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VERSUS

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THE STATE OF ASSAM AND 5 ORS.

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HOME DEPARTMENT, DISPUR, GUWAHATI- 781006.

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2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI- 781007.

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3:THE SENIOR SUPERINTENDENT OF POLICE (DSB) CITY, GUWAHATI.

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4:THE OFFICER-IN-CHARGE

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DISPUR POLICE STATION GUWAHATI- 781006 DIST.- KAMRUP(M)

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5:THE DISTRICT MAGISTRATE KAMRUP(M) GUWAHATI- 781001.

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6:THE DEPUTY COMMISSIONER KAMRUP(M) GUWAHATI- 781001

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Advocate for the Petitioner : MR. I CHOUDHURY

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Advocate for the Respondent : GA, ASSAM

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- B E F O R E -

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HON’BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

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ORDER

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Date : 04-03-2021 (Sudhanshu Dhulia , CJ)

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Heard Mr. I. Choudhury, learned counsel for the writ appellant. Also heard Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam, appearing for all the respondents.

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The appellant/writ petitioner is a dealer in the trade of liquor and has a liquor shop and at the relevant time was running a liquor shop of Indian-Made Foreign Liquor (IMFL) at Rajgarh Road, Guwahati in the district of Kamrup (Metro) for which he had a valid licence from the Government. Since he had to carry cash to his house daily after closing of his shop he was perceiving a threat to his life and property. He consequently moved an application before the licensing authority, i.e. the Divisional Commissioner, Kamrup (Metro), for giving him a licence for a revolver of a Non Prohibiting Bore (NPB). The Deputy Commissioner, in turn, called for a police report. The police report said that the appellant/writ petitioner does not have any threat perception from any militant outfit and therefore he cannot be given licence for a revolver. Based on the said report, the Deputy Commissioner rejected the application of the petitioner/writ appellant.

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In all fairness, the present writ appellant before this Court should have gone to the appellate authority under Section 18 of the Arms Act, 1959 (hereinafter referred as “Act”) (read with Rule 105 of the Arms Rules, 2016), who is the Divisional Commissioner, instead he straightaway filed a writ petition being WP(C) No.5148/2015, which came up before the learned

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Single Judge of this Court, which was dismissed vide order dated 07.01.2021. We are only pointing this out as the matter has already been decided by the learned Single Judge and we cannot send the matter now to the Divisional Commissioner but we must point out that the proper remedy for the writ appellant was to first approach the Divisional Commissioner under Section 18 of the Act.

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Be that as it may, under the scheme of the Arms Act, 1959, and the Rules framed therein, there are two kinds of weapons –prohibited and non-prohibited for which a licence is required. Among the non-prohibited arms again there is a category of restricted arms, which is given in Schedule I of the Rules. In the normal course, when a request is made for grant of a non-prohibited and non-restricted firearm licence should be granted unless there a police report against the applicant, which disentitles him. Conversely, in the case of prohibited arms, it should not be granted and it can be given in only exceptional cases where there is a requirement under some exceptional circumstances.

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While rejecting the case, the licensing authority has considered the guidelines contained in Central Government directive vide No.V11016/16/2009-Arms dated 31.03.2010, which provides that no licence may be granted without police verification, which include report on (i) antecedents of the applicant; (ii) assessment of the threat etc.

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A perusal of the aforesaid guidelines shows that apparently it is only for the Delhi. But in any case, even if such guidelines are to be applied, it prescribes the following conditions:-

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“ii. Grant of arms licence for non-prohibited bore (NPB) weapons.

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The Arms Licences for acquisition of NPB weapons are considered by the State Government/DM concerned. It has been decided that:-

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a) Application for grant of NPB arms licences may be considered from persons who may face or perceive grave and imminent threat to their lives, for which the licensing authority will obtain an assessment of the threat faced by the persons from the police authorities.

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b) No licence may be granted without police verification, which will include report on i) antecedents of the applicant, ii) assessment of the threat, iii) capability of the applicant to handle arms, and iv) any other information which the police authority might consider relevant for the grant or refusal of licence. Further that the steps are being taken by Ministry of Home Affairs to delete the proviso to Sec. 13 (2A) of the Arms Act, 1959.

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c) The Police authorities may be advised to send the Police report within 45 days positively falling which the Police officials concerned may be liable for action.

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d) The licensing authority may call for any information/documents such as Voter ID card, ration card or any other document which it may consider necessary to verify the bonafides of the applicant and to ensure that the applicant resides within its jurisdiction.

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e) The licensing authority shall be obliged to take into account the report of police authorities called for under section 13(2) before granting arms licenses and no arms licence may be issued without police verification.”

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A perusal of the aforesaid guidelines shows that what is required to get a non-prohibited bore licence is that an applicant must be perceiving a great and imminent threat to his life and there may not be anything adverse antecedents of him for which police verification is required. his capability to handle arms, etc., are also to be seen.

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In the present case, all the police authorities have said in their report is that the applicant does not have a threat perception from militant outfit and since he does not have any threat perception from a militant outfit, the licensing authority has rejected his application. This obviously cannot be a ground for rejection as we have already stated above under the normal circumstances when a requisition is made for grant of a nonprohibited bore licence, it should be given unless the antecedents of the applicant are such which makes him ineligible for grant of such a licence.

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In fact, under Rule 12 of the Arms Rule, 2016, the obligations of the licensing authority have been laid down under which they have to consider the grant of licence to an applicant and for what purposes it can be granted, which have been given in Schedule I to the Rules, such as a restricted arm or a non-restricted arm. Category No.III is a category of “Permissible Arms”, which includes handguns, i.e. revolvers and pistols, other than what is restricted such as .38 revolver. Let the licensing authority apply its mind afresh to the application of the applicant and get a fresh report from the police authorities and thereafter pass orders in accordance with law. The licensing authority shall consider the application of the petitioner for the grant of a permissible handgun, i.e. revolver, and in case the licensing authority is of the opinion based on police report and other materials that a licence should not be granted to the petitioner then it shall

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do that by a speaking order, which shall be passed in all event within eight weeks from the date a certified copy of this order is placed before the concerned licensing authority. Let the needful be done within a period of eight weeks from the date of certified copy of this order is produced before the licensing authority.

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JUDGE

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CHIEF JUSTICE

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Comparing Assistant

Sanjib Kumar Barua v. the State of Assam and 5 Ors.

Case brief

What is this about?

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Sanjib Kumar Barua v. the State of Assam and 5 Ors.

Case brief

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What did the court decide?

What the court decided

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