Allowed

Sri.Suna Miandad v. the State of Karnataka

Karnataka HC12 Apr 2023WP/3874/2023

Case brief

AI extract

What is this about?

The Karnataka High Court quashed orders cancelling the petitioner's Arms licence and allowed the writ petition. The court directed the respondent Commissioner of Police to reconsider the matter in light of the quashing of criminal proceedings against the petitioner's brother and pass appropriate orders after an opportunity of hearing.

What did the court decide?

Impugned orders dated 01/02/2023 and 17/09/2022 quashed; matter remitted to Commissioner of Police to reconsider and pass appropriate orders within twelve weeks.

Sri.Suna Miandad Vs the State of Karnataka — Writ and Judicial Review | Karnataka HC (2023)

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WP No. 3874 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF APRIL, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

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WRIT PETITION NO.3874 OF 2023 (GM-POLICE)

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BETWEEN:

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SRI SUNA MIANDAD S/O. K.S. SAMIULLA, AGED ABOUT 33 YEARS, R/AT NO.1096, 7^TH CROSS, 2^ND MAIN, NEAR SAI BABA ASHRAM, BTM LAYOUT 1^ST STAGE, BANGALORE – 560 029. ... PETITIONER

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(BY SRI PRAVEEN S., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REPRESENTED ITS ADDL. CHIEF SECRETARY, HOME DEPARTMENT, VIDHANA SOUDHA, BANGALORE – 560 001.

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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COMMISSIONER OF POLICE BANGALORE CITY NO.1, INFANTRY ROAD, BANGALORE – 560 001.

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POLICE INSPECTOR SUDDAGUNTEPALYA POLICE STATION NO.42, 4^TH MAIN ROAD, KM LAYOUT, BALAJI LAYOUT, SUDDAGUNTEPALYA, BANGALORE – 560 029. ... RESPONDENTS

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(BY SRI B.V. KRISHNA, AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE

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WP No. 3874 of 2023

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IMPUGNED ORDERS OF THE RESPONDENT NOS.1 AND 2 IN ANNEXURE-M IN CASE NO.207/CAA2022 DATED 01/02/2023 BY WAY OF ORDER NO.89/SHASTRA-2/SHARA/2022 BANGALORE DATED 17/09/2022 AND ANNEXURE-K RESPECTIVELY AND RESTORE THE ARMS LICENCE OF THE PETITIONER IN 70/R&P/2011 ON THE FILE OF THE RESPONDENT NO.2.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking quashment

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of orders dated 17/09/2022 and 01/02/2023, by which the Arms licence of the petitioner is cancelled. The petitioner further seeks a direction by issuance of a writ in the nature of mandamus directing restoration of the arms licence.

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Heard Sri.Praveen.S., learned counsel appearing

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for petitioner and Sri.B.V.Krishna, learned Additional Government Advocate appearing for respondents.

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WP No. 3874 of 2023

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Brief facts that lead the petitioner to this Court in

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the subject petition as borne out from the pleadings are as follows:

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The petitioner and his family members are alleged to have come under threat on account of them being complainants against one Ravi Pujari alleged underworld operator. It is also the pleading that Ravi Pujari through his henchmen had shot and killed the staff working in the office of the petitioner’s father. Therefore, the averment is that fear of attack on the petitioner did loom large throughout. It is further averred that the petitioner and his father were also threatened to be killed. The petitioner has produced certain newspaper report to buttress his allegation.

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The petitioner, on the aforesaid threat, applied for an Arms licence and was granted such Arms licence. After about 10 years of grant of such licence it is the averment that the brother of the petitioner inadvertently discharged the licenced weapon belonging to the petitioner thereby

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injuring son of the friend of the petitioner, against which, a crime comes to be registered against the petitioner’s brother in Crime No.296 of 2021 for offences punishable under the Arms Act, 1959 (‘Act’ for short), inter alia .

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On registration of the crime against the brother of the petitioner, a show cause notice was issued to the petitioner by the 3^rd respondent seeking an explanation as to why the licence should not be cancelled on account of careless maintenance of the weapon. The petitioner replied to the said show cause notice despite which a direction is issued on 25.08.2022 to deposit the Arms licence with the 3^rd respondent, after which, another order on 17.09.2022 comes to be passed intimating the petitioner that his Arms licence has stood cancelled. The petitioner files an appeal before the Appellate Authority under the Act who also rejects the appeal in appeal No.207 of 2022 by directing the respondent/Police Commissioner to pass a speaking order. Owing to the urgency in the matter, the petitioner has knocked at the

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doors of this Court, calling in question the order revoking the licence and the order of the Appellate Authority, as aforesaid.

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The learned counsel for the petitioner would

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contend with vehemence that the grounds on which the licence can be cancelled are depicted in Section 17 of the Act. Except under those circumstances, no other circumstance can lead to cancellation of the Arms licence. In the case at hand, the incident that triggered the controversy was the act of the brother of the petitioner using the Arms unauthorisedly and by mistake injuring the son of the friend of the petitioner. He would submit that those proceedings were called in question in Crl.P.No.6713 of 2022 and this Court in terms of its order dated 22.08.2022 granted an interim order of stay. He would submit that the criminal petition itself is allowed by the coordinate bench and the proceedings against the brother of the petitioner is quashed. He would seek quashment of the present orders on the aforesaid submissions.

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WP No. 3874 of 2023

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On the other hand, learned Additional

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Government Advocate would seek to refute the submissions to contend that there is no threat to the petitioner to hold licence or the weapon. It was the act of

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the petitioner himself in carelessly treating the weapon and the weapon going into the hands of the brother of the petitioner, which had resulted in the aforesaid crime. He would submit that it is for the Authorities to consider all the contentions and restore the licence that has now stood revoked. He would further submit that in the light of there being violation of the terms of the licence, the order revoking the licence is valid in the eye of law. Hence, he seeks for dismissal of the petition.

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I have given my anxious consideration to the submissions made by the respective learned counsel for the parties and have perused the material on record.

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The afore-narrated facts are not in dispute. The holding of Arms licence by the petitioner under the Act

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between the period 2011 to 2022 is also not in dispute. It transpires that, the brother of the petitioner discharged the weapon, shot at the son of his friend and injured him. This resulted in a criminal case being registered against the brother of the petitioner in Cr.No.296/2021 for offence punishable under Section 27 of the Act and Section 308 of the IPC. On registration of the crime, the licence of the petitioner was not revoked. The police file a chargesheet in the aforesaid crime in C.C.No.17582 of 2022. After the police file the charge sheet, a show cause notice is issued

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to the petitioner as to why the Arms licence granted to him 11 years ago should not be revoked. The petitioner submits his reply narrating the circumstances under which

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the weapon was discharged by his brother and also submits that he has been taking care of the weapon with all diligence and has not violated any conditions of licence.

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The petitioner then files Crl.P.No.6713 of 2022 calling in question proceedings in C.C.No.17582 of 2022. This Court grants an interim order of stay in terms of its

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order dated 22.08.2022. The learned counsel for the petitioner submits that the co-ordinate bench has allowed the petition and quashed the proceedings against his brother.

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The grant for revocation of licence is governed and regulated by the Act. Section 17 is germane for consideration of the issue in the lis and it reads as under:

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“17. Variation, suspension and revocation of licences.- (1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may specified in the notice.

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(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.

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(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence-

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(a) if the licensing authority is satisfied that the holder of the licence is 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 is of unsound mind, or is for any reason unfit for a licence under this Act; or

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(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

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(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or

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(d) if any of the conditions of the licence has been contravened; or

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(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.

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(4) The licensing authority may also revoke a licence on the application of the holder thereof.

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(5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under subsection (3), it shall record in writing the reasons therefor and furnish to the holder of the licence 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.

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(6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority.

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(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence:

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Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.

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(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision.

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(9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.

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(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.”

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Section 17 of the Act deals with variation, suspension and revocation of licences. Sub-section (3) of Section 17 permits the licensing authority to revoke the licence or suspend or vary the terms of the licence if the holder of the licence indulges in any of the acts enumerated under Clause (a) to (e) of Section 17 of the Act.

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It is not in dispute that the petitioner has not indulged in any crime or any crime is registered against him for the usage of the said weapon, the allegation is that the petitioner has varied the terms of the licence as he has not taken care and caution of the arm in terms of the terms of the licence. This allegation has triggered issuance of show cause notice seeking cancellation of the licence. The incident was pertaining to the act of the brother of the petitioner. If the foundation for issuance of show cause notice is registration of crime in Crime No.296

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of 2021 and the proceedings before the Magistrate in CC.17582 of 2022, the very proceeding having been quashed by this Court would clearly enure to the benefit of the petitioner, as the very foundation for issuance of the show cause notice seeking cancellation of the licence has now vanished, apart from the fact that the petitioner has not indulged in any violation of clauses (a) to (e) of Section 17 of the Act.

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Since the revocation of the cancellation of the licence is to be done by the Authority on examining all circumstances, I deem it appropriate to direct the concerned Authority to bear in mind the observations made in course of this order and also noticing the fact that the petitioner has not contravened any clause of Section 17 quoted supra , except the safe keep of the weapon under the schedule to the Arms Rules. The Authorities shall also bear in mind that the proceedings against the brother of the petitioner is quashed by this Court in Crl.P.No.6713 of 2022.

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The petitioner shall also file an undertaking before the Authority with regard to safe keep of the Arm during the subsistence of the licence. For the foresaid reasons, the following:

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ORDER

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(i) Writ Petition is allowed.

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(ii) The orders dated 01/02/2023 and 17/09/2022 stand quashed.

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WP No. 3874 of 2023

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(iii) The matter is remitted back to the second respondent – Commissioner of Police, Bangalore City to reconsider the reply of the petitioner submitted to the show-cause notice, and pass appropriate orders in accordance with law, within twelve weeks from the date of receipt of a copy of this order, after affording opportunity of hearing to the petitioner.

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(iv) In those proceedings, the second respondent shall bear in mind the observations made in the course of

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the order.

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Sd/JUDGE

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Sri.Suna Miandad v. the State of Karnataka

Case brief

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Sri.Suna Miandad v. the State of Karnataka

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