Bhanwar Lal Bohra vs State of Rajasthan and Others

Pratap Krishna Lohra, J.—Petitioner has laid this writ petition to assail the impugned order dated 03.05.2011 (Annex.4) whereby District Collector cum District Magistrate, Bhilwara has declined to renew arms licence in his favour for two barrel 12 bore gun No. 142684 as well as the order dated 20.12.2012 (Annex.8) passed by the Divisional Commissioner, Ajmer (for short ''the Appellate Authority''). The Appellate Authority by the order dated 20.12.2012 (Annex.8) has upheld the order passed by the District Collector, Bhilwara.

The facts apposite for the purpose of this writ petition are that at the threshold, petitioner obtained a licence bearing No. 67-68/18 dated 22.08.1967 for two barrel 12 bore gun and after its renewal it was re-numbered at BHL/91/90. Arms licence of the petitioner was renewed from time to time and it was valid upto 17.12.2009. Thereafter, petitioner submitted application for its further renewal on 17.12.2009 with the requisite renewal fee for two years commencing from 01.01.2010. After scrutiny of the application of the petitioner, necessary comments were solicited from SHO, Sadar Police Station, Bhilwara. Thereafter, report was also sought from the Superintendent of Police, Bhilwara wherein it was reiterated that a criminal case bearing FIR No. 11/2002 under Sections 451, 323, 324 IPC is pending against the petitioner. It is also reiterated that in another criminal case bearing FIR No. 38/1979 under Sections 452, 332, 353, 323 IPC, the petitioner has been convicted. The petitioner has specifically averred in the writ petition that he was never apprised about this sort of negative report and it was supplied to him only on his application submitted under the RTI Act. Be that as it may, the fact remains that the Licensing Authority i.e. District Collector, Bhilwara rejected his prayer for renewal of licence by order dated 09.07.2010. Being aggrieved by the said order, the petitioner preferred an appeal before the Divisional Commissioner, Bikaner under Section 18 of the Arms Act, 1959 (for short ''the Act''). The Appellate Authority allowed the appeal of the petitioner by its order dated 01.03.2011 and remanded the matter back to the learned District Collector, Bhilwara for deciding it afresh after affording reasonable opportunity of being heard to the petitioner. Pursuant to the remand order, the District Collector, Bhilwara examined the matter de novo and by relying on the report of Superintendent of Police dated 18.06.2010 once again rejected the prayer of the petitioner for renewal of arms licence. In the order, the learned District Collector has referred to criminal case No. 11/2002 for the offences under Sections 451, 323 and 34 IPC by observing that the same is pending trial. As regards other case i.e. criminal case No. 38/1979 for the offences under Sections 452, 332, 353, 323 IPC, it is observed that in that case, the petitioner has been convicted. Precisely, the Superintendent of Police by referring to these two cases, recommended to the Licensing Authority for non-renewal of arms licence to the petitioner; and taking cognizance of these facts after remand, the learned District Collector declined renewal of arms licence to the petitioner.

Feeling aggrieved by the order of the District Magistrate, Bhilwara dated 03.05.2011, the petitioner once again laid appeal before the Divisional Commissioner, Bikaner under Section 18 of the Act and by the order dated 20.12.2012, the Divisional Commissioner, Bikaner while fully concurring with the order of District Magistrate, Bhilwara rejected the appeal.

In order to assail the impugned orders, the petitioner has pleaded in the writ petition that no case was ever registered against him under the Act and as such the cases which are referred to in the impugned orders are of no relevance and significance for declining the prayer for renewal of licence. It is also submitted that recitals contained in the report of Superintendent of Police are factually incorrect inasmuch as criminal case No. 38/1979 was not pending on 08.06.2010. As a matter of fact, the said case was decided by the Trial Court convicting the petitioner but in appeal, the Appellate Court by its judgment dated 01.08.1986 while maintaining conviction extended benefit of probation to the petitioner. Adverting to the second case, the petitioner has submitted that the competent criminal court has acquitted him for the offences under Section 451, 323/34 IPC by its judgment dated 27.05.2008. Copies of judgment dated 01.08.1986 and 27.05.2008 are also placed on record by the petitioner. By narrating all these facts, the petitioner has urged in the writ petition that both the impugned orders are not sustainable and the orders have been passed in clear negation of mandatory provisions of Section 17 of the Act. The petitioner has also submitted in the writ petition that declining of the prayer for renewal of licence by both the authorities is based on wholly irrelevant and extraneous facts which are not relevant and germane to the matter.

The respondent State of Rajasthan has submitted its reply to the writ petition refuting all the averments contained in the writ petition. The State in its reply has submitted that grant of arms licence as well as its renewal is within the sole discretion of the Licensing Authority and if Licensing Authority has exercised its discretion judiciously and the same has been upheld by the Appellate Authority, no interference in the writ petition is warranted. The State has also taken shelter of Section 17 of the Act by submitting that Licensing Authority has rightly cancelled the arms licence of the petitioner. In totality, the stand of the State is that Licensing Authority as well as Appellate Authority has applied its mind while declining the prayer of the petitioner and said decision of the Authorities is not liable to be subjected to judicial review under Article 226 of the Constitution of India.

The respondent No. 3 has submitted its separate reply and urged that it was solely within the discretion of the Licensing Authority to renew or cancel licence in public interest to keep peace and tranquility in the society and renewal of Licensing Authority cannot be claimed as a matter of right. In substance, the third respondent has also made sincere endeavour to defend both the impugned order.

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

Pivotal questions with which the Court is concerned are the incriminating materials against the petitioner for non-renewal of arms licence. After examining the materials available on record threadbare, there remains no room of doubt that the petitioner has incurred any disqualification for grant/renewal of arms licence within the four corners of Section 14 of the Act. Section 14 of the Act reads as under:-

"14. Refusal of licences.--

(1) Notwithstanding anything in section 13, licensing authority shall refuse to grant--

(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;

(b) a licence in any other case under Chapter II,--

(i) where such licence is required by a person whom the licensing authority has reason to believe--

(1) to be 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

(2) to be of unsound mind, or

(3) to be for any reason unfit for a licence under this Act; or

(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person 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."

There is yet another aspect of the matter that the report of Superintendent of Police, Bhilwara nowhere indicates that renewal of arms licence to the petitioner is likely to endanger security of public peace or public safety. Admittedly, no case was ever registered against the petitioner under the Act and the cases which are reported against the petitioner as adverse material for non-renewal of arms licence are falling short of the requirements envisaged under the Act for non-renewal of the arms licence. Well it is true that arms licence is to be granted by the Licensing Authority at its discretion but the said discretion is to be exercised by the Licensing Authority judiciously and not at its whims and fancy for refusing grant/renewal of arms licence. It is obligatory for the Licensing Authority to take into account the facts and circumstances which are relevant and germane to the matter and further to eschew all the facts and circumstances which are wholly irrelevant and extraneous. In totality, the District Collector i.e. Licensing Authority was impressed by the report of the Superintendent of Police, Bhilwara which was not based on true and correct fact situation and the Appellate Authority has also committed the same folly while placing reliance on the said report while concurring with the findings and conclusions of the Licensing Authority. Therefore, both these orders are laconic and are suffering from the voice of malice in law and malice in facts, therefore, cannot be sustained.

The Division Bench of this Court in the case of Khem Singh Vs. State of Rajasthan & Ors. : 2005(2) Cr.L.R. (Raj.) 907 while examining the rigour of Section 17 of the Act for cancellation of arms licence has observed that satisfaction of authority for the security of public peace or for public safety while revoking a licence has to be objective and must be based upon relevant material. The Division Bench held,-

"5. From the reading of the provision it is manifest that the licensing authority may revoke a license if it deem necessary for the security of the public peace or for public safety. The power of suspension of Arms license is necessary concomitant of power of revocation for effective control and regulation as also for the security of the public peace or public safety. Such a power has to be exercised with great circumspection. The satisfaction of the authority has to be objective and must be based upon relevant material. Mere fact that some reports have been lodged against the licence holder is not sufficient for cancelling the license. A license can be revoked u/s. 17(3)(b) if the licensing authority deem it necessary for the security of public peace or public safety. In absence of any finding that cancellation was necessary for public peace or public safety, such an order is liable to be quashed."

Upon objective analysis of the matter, in my considered opinion, both the Licensing Authority as well as Appellate Authority has misdirected them while considering the application of the petitioner for renewal of arms licence and there was absolutely no reason for declining the renewal of arms licence to the petitioner in the backdrop of facts and circumstances of the instant case. That being the situation it is a case wherein the competent authority has failed to discharge its jurisdiction so vested in it and, therefore, both the impugned orders are glaring examples of an error apparent on the face of record warranting interference in exercise of certiorari jurisdiction of this Court.

Resultantly, the writ petition is allowed, the impugned orders dated 03.05.2011 (Annex.4) and 20.12.2012 (Annex.8) are hereby quashed and set aside and the matter is remanded back to the learned District Magistrate, Bhilwara (Licensing Authority) for deciding application of the petitioner for renewal of arms licence afresh strictly in accordance with law. The requisite exercise in this behalf be undertaken by the Licensing Authority as expeditiously as possible preferably within a period of two months from the date of receipt of certified copy of this order.

No order as to costs.