Wednesday 12 December 2012

right to hold the firearm license is merely a privilege and not the fundamental right.


"The consistent trend of judicial decisions has been that the official granting of the licence involves the exercise of discretionary licensing powers which are concerned with privileges and not rights." 

Thus in view of the law laid down in the aforesaid three full Benches it is settled law of this Court that the right to hold the firearm license is merely a privilege and not the fundamental right. 

Petitioner :- Rajendra Deo Pandey v - State Of U.P. And Others 
Decided;6 1 2012

Citation;2012(4)crimes 328 Allahabad

By way of this writ petition the petitioner has challenged the order of the Commissioner, Varanasi Division, Varanasi dated 29.3.2005 whereby his Appeal under Section 18 of the Arms Act has been dismissed.
The brief facts of the case leading to the present petition are that the petitioner was issued a Licence for DBBL Gun No.7500/21. The District Magistrate on 22.9.1998 issued a show cause notice to the petitioner on the basis of a report submitted by the SHO Saidpur dated 16.8.198 wherein it was reported that the petitioner's son Anil Kumar Pandey had shot Ajay Kumar Pandey son of Surendra Deo Pandey a Case Crime No. 343 of 1998 under section 147/148/149/307 IPC and another Case Crime No. 229 of 1998 under section 504/506/427 IPC was registered. The second case was also registered wherein the incident was between same parties. The petitioner in response to the show cause notice has submitted his reply wherein he has denied the allegations made in the show cause notice. His case was that his son did not used the Gun as alleged in the show cause notice and they were falsely implicated in the said Crime. The District Magistrate was not satisfied with the reply of the petitioner cancelled the Gun licence of the petitioner by means of order dated 11.8.99.

Aggrieved by the order of the District Magistrate,dated 11.9.99 the petitioner preferred an Appeal under section 18 of the Arms Act before the Commissioner, Varanasi Division, Varanasi. The Commissioner, of the Division dismissed the Appeal of the petitioner by the impugned order on the same ground mentioned in the order of the District Magistrate.

I have heard learned counsel for the petitioner Sri A.P.Kushwaha and learned standing counsel.The State has preferred not to file counter affidavit. The Court has to proceed on the basis of facts of the Writ Petition with the consent of the parties. The Writ Petition is heard finally in terms of Rules of this Court.

Learned counsel for the petitioner submitted that the order of the District Magistrate and the Appellate Authority/Commissioner is erroneous on the ground that they had failed to consider that merely because a criminal case was pending against the petitioner,that may not be a ground to exercise the power by the Licensing Authority under section 17(3) of the Arms Act, 1959 (hereinafter referred to as the 'Act'). He has relied on the judgment of this Court in Raj Bahadur Singh v. State of U.P. and others reported (2009) (4) ADJ 549 . The learned Standing Counsel has urged that the order of the District Magistrate and the order of the Commissioner do not warrant any interference under Article 226 of the Constitution of India. He invited the attention of the Court to the findings recorded by the District Magistrate and the Commissioner that if the petitioner is allowed to hold the license it would be against the security of the public peace and safety.

The only ground mentioned in the show cause notice to the petitioner is that his son had used the licensed gun against Surendra Dev Pandey in an incident which is alleged to have taken place on 14.8.1998 . There is no other allegation in the show cause notice in the past the petitioner has ever used his gun for any illegal purpose. The petitioner in his reply has denied the allegations and submitted that he never misused his gun. However, the District Magistrate without applying his mind only on the basis of Police report has cancelled the gun licence of the petitioner.

It is significant to mention that the Sessions Judge, Ghazipur by his order dated 29.11.2004 in Case Crime No. 343 of 1998 has acquitted the petitioner and his son. The order of the Sessions Judge, Ghazipur is Annexure-3 to the writ petition. With regard to other Criminal Case No. 229 of 1998 under section 504/506/427 IPC he was acquitted by the Civil Judge (Jr.Div.) Saidpur, district Ghazipur on 17.3.2008 . The order of the Civil Judge has been passed after the impugned order of the learned Commissioner dated 29.3.2005. A perusal of both the judgment unmistakably show that no charge has been proved against the petitioner and his son stands acquitted in both the cases.

A licence under the Arms Act can be cancelled/suspended or revoked under section 17 of the Arms Act, 1959 . Section 17 so far as material, is set out at below:-

"17. Variation, suspension and revocation @ page -AII 296 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 be specified in the notice.

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

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

(a) if the licensing authority is satisfied that the holder of the licence is prohibited by his 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

(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

(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

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

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

I have considered the rival submissions of the parties. The issue involved in this petition is whether the District Magistrate/Licensing Authority has power to suspend/revoke the license only on the ground that criminal case is pending against the licensee.

Broadly there are two categories of the cases:- The recent trend of the judgments of the learned Single Judges are that pendency of the criminal case cannot be a ground for the District Magistrate/Licensing Authority to invoke his power under section 17(3) of the Act. In the first category of cases, reference may be made to the following cases:- Ram Sanehi v. Commissioner, Lucknow Division, Lucknow and Another 2011 (1) ADJ 468; Firasat Ali @ Munna v. State of U.P. and others 2011 (1) ACJ 172; Pramod Kumar v. State of U.P. and others 2010 (5) ADJ 594; Jagdish Prasad v. State of U.P. and others 2010 (71) ACC 522 and Jageshwar v. State of U.P. and others 2009 (67) ACC 157 : 2009 (8) ADJ 718.

The second category of the case are those cases where this Court has taken the view that if the District Magistrate is satisfied that the licensee is involved in a criminal case the nature of which directly or indirectly affect the public peace or safety of the community/society and the gravity of his action is likely to endanger the public tranquility the District Magistrate will be well within his power to cancel suspend or revoke the license. Reference may be made to the following cases:- Ramesh Singh v. State of U.P. and others 2007 CRI.L.J 2401; Tale Singh Yadav v. State of U.P. 1998 Cr.LJ (Ald) 2842; Sunil Singh v. State of U.P. and others 2009 (6) ADJ 326; Sanjay Kumar Singh v. State of U.P. and others 2009(9) ADJ 657.

Before adverting to the law laid down by the aforesaid mentioned judgments it is necessary to consider whether a citizen has a fundamental right to hold the arms license or it is only a privilege.

A Division Bench of this Court in State of U.P. and others v. Jaswant Singh AIR 1968 Allahabad,383 has held that a citizen has fundamental right to hold acquire and dispose of fire arms and ammunition and the provision of sub.clauses (f) and (g) of clause (1) of Article 19 of the Constitution are attracted. The Division comprising of V.G.Oak ,CJ and R.S.Pathak,J (as he then was) held as follows:-
"The aforesaid conclusion is fortified by the nature of die legislation. The Act is plainly a regulatory measure intended to regulate the rights of a citizen to hold acquire and dispose of fire arms and ammunition and to carry on the occupation, trade or business of dealing in them. The provisions of sub clauses (f) and (g) of clause (1) of Article 19 of the Constitution are immediately attracted, and an enquiry into the question whether the provision, of the Act constitute a reasonable restriction upon the exercise of those fundamental rights becomes relevant. In that enquiry, it is pertinent to consider whether a right of hearing is afforded, expressly or by necessary intendment, before the fundamental right is prejudicially affected."

(italicized by me)

However, a full bench of this Court took a contrary view in the matter of Kailash Nath v. state of U.P. reported AIR 1985 All 291.

"Para 3 " In my opinion the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the right of an individual nor does it entail civil consequences. I may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen may apply for grant of a licence of firearms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Art. 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. "

Similar view was taken in another full bench in Balram Singh v. State of U.P. (FB) 1990 CRI.L.J. 409 , the relevant part of the judgment is extracted below:-

"13. In this connection, another aspect of the matter cannot be lost sight of. Obtaining of a licence for possession a firearm has to be held a privilege only. No civil consequences follow. Even if we were to hold that civil consequences do follow as it may in proceedings concerning licences issued under section 4 or 5 of the Act, the security of public peace or public safety would be of paramount importance and if, to protect and preserve the same it appears "necessary", the licensing authority has that power to use, for the power to suspend such a licence is inherent in the power to cancel it. Moreover, a right of objection or representation is available to the licence holder.

The same question was considered by another full bench in Rana Pratap Singh 1995 (Vol I) All. CJ 200 wherein it was held that grant of license is a privilege and not right. The relevant part of the judgment is extracted hereunder below:-

"The consistent trend of judicial decisions has been that the official granting of the licence involves the exercise of discretionary licensing powers which are concerned with privileges and not rights."

Thus in view of the law laid down in the aforesaid three full Benches it is settled law of this Court that the right to hold the firearm license is merely a privilege and not the fundamental right.

I shall now consider the question whether mere pendency of a criminal case can be ground for suspension-revocation of the firearm license.

I am inclined to follow the reasoning of the cases of category second mentioned above. In the full Bench decision of Kailash Nath (supra) Justice H.N. Seth (as he then was) in his separate opinion took the following view:-

"29. Now remains the second contention of the petitioner's counsel that mere involvement in the criminal case is not sufficient for suspension of arm licence. He has placed reliance on the judgment of Dharm Vir Singh's case, (2003 All LJ 1769) (supra). In Dharm Vir Singh's case following was laid down by the learned single Judge.
"6............. The District Magistrate in the impugned Order dated 14-10-1991 has stated that cancellation of the licence of the petitioner appears necessary in the public interest. There is no finding that the revocation of licence was considered necessary for the security of the public peace or public safety. Public interest cannot be equated to term for the security of the public peace or public safety. The case of Sheo Prasad (supra) has been relied in the case of Iftikhar Khan v. State of Uttar Pradesh reported in, 2002 (1) JIC 501 (Allahabad) and it has been held that involvement in criminal case or pendency of a criminal case cannot be a ground for revocation of the licence under the Arms Act. The ratio of Sheo Prasad Case (supra) was again affirmed in the case of Hari Kant alias Raja v. State of Uttar Pradesh reported in, 2002 (1) JIC 714 (Allahabad)."
30. There cannot be any dispute with the proposition laid down in the above case that the involvement in criminal case or pendency of criminal case cannot be ground for revocation of licence. The suspension or revocation can be ordered when the conditions as mentioned in section 17(3) is fulfilled. Thus without recording a finding that the security of the public peace or public safety is endangered the suspension cannot be ordered only on the ground that a criminal case is pending against a person."

The same view has been taken in the case of Tale Singh Yadav v. State of U.P. (supra) :-
"14. In view of the Full Bench decisions of this Court the reference of which has been mentioned in the foregoing paragraphs which are binding upon this Court, this Court cannot delve into the question that no order suspending the Arms Licence can be passed for the period pending enquiry inasmuch as the Full Bench in Kailash Nath's case (supra) and Rana Pratap Singh's case (supra) has clearly laid down the law that the Arms Licence can be cancelled/revoked even without giving an opportunity to show cause but a post decisional hearing must be provided. The words "for such period as it thinks fit" do not mean that only for a specific period an Arms Licence can be suspended. Section 17(3) of the Arms Act does not provide that the licensing authority may suspend the licence for a specific period only, hence it cannot be said that for a non-specific period or indefinite period licence cannot be suspended or revoked. What is incumbent upon the District Magistrate is that after suspension/revocation of the Arms licence, the licensing authority must give an opportunity to the licensee to show cause against such suspension or revocation."

The Supreme Court in case of National Capital Territory of Delhi and Anr. v. Umesh Kumar 2008 (3) SCC (Cri) 490 has considered similar facts. A gun license was cancelled on the ground of involvement in criminal case. However, the licensee was acquitted in criminal case and State filed appeal against acquittal. The said appeal was pending. In the meantime licensee filed Writ Petition challenging the cancellation on the ground that he has been acquitted. The High Court allowed his Writ Petition on the ground that licensee was already acquitted and pendency of appeal will will not make any difference. The matter was carried to Supreme Court by Delhi administration.
The Supreme Court held that licensee's license shall remain cancelled till disposal of State appeal against his acquittal.

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.

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

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.

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)1SCC385 has considered the nature of the criminal Act and its impact on public and law order. The relevant extract is being quoted herein below :-

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

Coming back to the facts of the present case, it was on 14.6.98 it is alleged that the petitioner's son Anil Kumar Pandey shot one Ajay Kumar Pandey son of Surendra Deo Pandey who received gun shot injury in his hand. A Case Crime No. 343/98 under section 147/148/149/307 IPC was registered and petitioner and his son were put up for trial, they were acquitted by the Sessions court vide judgment dated 29.11.2004. A copy of the judgment has been annexed by the petitioner as Annexure-3 to the writ petition. In another criminal case which occurred on 14.6.1998 between the same parties the allegation was that the petitioner's another son Manoj Kumar was armed with gun of the petitioner and he threatened to kill Surendra Deo Pandey and his family members. A Case Crime No. 229/98 was registered under section 427/504 IPC. In the said case also all of them have been acquitted. A copy of the judgment of the Judicial Magistrate has been annexed along with the Supplementary Affidavit. It is significant to mention that Surendra Deo Pandey and the petitioner are cousin brother and the dispute arose in respect of their property.

Petitioner has filed a Supplementary Affidavit enclosing the judgment and order dated 17.3.2008 passed by the Civil Judge, Junior Division, Saidpur, Ghazipur whereby he has been acquitted, also in Case Crime No. 229 of 1298. Thus he stood acquitted in both the criminal cases.

In view of the above discussion the order of the Commissioner dated 29.3.2005 and order of the District Magistrate dated 11.8.1999 (Annexure- 1 and 2 to the writ petition) are set aside and the matter is remitted back to the District Magistrate, Ghazipur to pass a fresh order in the light of the observations made above as well in the light of Section 17 (7) of the Arms Act wherein the effect of the acquittal has been provided.
The writ petition is allowed. No orders as to cost.
Order Date :- 6.1.2012


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