Bhishm Deo vs The Commissioner, Jhansi Division, and Another

A. Banerji, J.—This writ petition raises an interesting question of law. The question is whether it is within the jurisdiction and competence of District Magistrate of a district to cancel an arms licence granted by the District Magistrate of another district.

The contention of the Petitioner was that District Magistrate who issues the licence is the licensing authority and the power to revoke a license u/s 3 of the Act vests only in the licensing authority. In other words, the argument was that the authority who issued the license was the only authority to cancel or revoke the licence. On the other hand, the Chief Standing Counsel contended that every Distt. Magistrate in the district of the State is a licensing authority and he is competent to revoke and cancel the arms'' license notwithstanding the fact that it may have been issued by the Distt. Magistrate of another district. He emphasised that when the licence is to have its way over the entire State, then in that event every licensing authority is empowered to exercise the powers u/s 17(3) of he Act. He further contended that it would become an administrative problem if the Distt. Magistrate of the district where any crime is done or where there is a breach of the terms of the licence, is not in a position to take effective steps for the cancellation of the licence. He would have material before him to cancel or revoke the licence u/s 17(3) of the Act. The position would not be the same in case the matter has to be referred to the original licensing authority, every time there is a necessity for cancelling or revoking the licence.

This petition is being heard and disposed of at the admission stage in accordance writ the provisions of Chapter XXII Rule 2 of the Rules of the Court. This empowers the Court to hear and finally dispose of the petition at the admission stage where the opposite party is the State. In this case the State has filed a counter affidavit and a rejoinder affidavit has also been filed by the Petitioner.

In the present case the Petitioner was issued an arms license for a SBBL gun by the order of the District Magistrate, Jalaun dated 7-1-1966. Originally it was valid upto 6-J-1969 and it was valid within the district of Jalaun. Subsequently it was extended to the whole of U. P. and Madhya Pradesh under the order of the District Magistrate dated 30-4-1969. The arms licence was subsequently renewed periodically upto 31-12-1970, 1973, 1976, 1979 and lastly upto 31-12-1982 by the Sub-Divisional Magistrate, Oral on 31-12-1979. All these facts are discernible from the original license No. 2998 produced by the learned Counsel for the Petitioner. The licence was revoked by the District Magistrate Hamirpur vide his order dated 17-3-1981. A direction was further issued that the gun of the Petitioners which was in deposit with an arms dealer at Orai was to be deposited in the Malkhana. The above order was appealed to the Commissioner of Jhansi Division by the Petitioner and by the order dated 1-9-1981 the appeal was dismissed. The Commissioner, Jhansi Division, Jhansi observed that the District Magistrate had cancelled the licence on grounds of public security and no interference was called for with his order. It is against the above order that present writ petition has been filed.

Section 3 of the Arms Act, 1959, hereinafter referred to as the Act, requires every person to have a license issued in accordance with the provisions of the Act and the Rules made thereunder if he acquires in his possession or carries any firearm or ammunition with him.

Section 13 of the Act provides for the grant of licenses. Section 13(3)(a)(i) of the Act authorises the licensing authority to grant a licence for a smooth bore gun to be used for protection or sport or in respect of a muzzle loading gun for the purposes of crop protection. The grant of licence is made subject to the provisions of Sections 14, 15 and 16 of the Act which provide for the refusal of licence duration and renewal of licence and fees for licence. Thus the license can be granted by an authority known as ''licensing authority'' in the Act. Section 2(f) defines a licensing authority as follows:-

2 (f) "licensing authority" means an officer or authority empowered to grant or renew licenses under rules made under this Act and includes the Government.

In Schedule II to the Arms Rules, 1962 the licensing authority for "breach loading smooth bore gun" is the Distt. Magistrate in case the license is to be effective for the whole of India or for any specified area. In case the area for which the licence is restricted is confined to the district then the Sub-Divisional Magistrate is also empowered to act as the licensing authority. In this case it is not necessary to consider the question of Sub-Divisional Magistrate for there is no dispute that the original licensing authority in this case was the Distt. Magistrate of Jalaun. Distt. Magistrate has been defined both in the Act and in the Rules. Both are inclusive definitions. The definition in Section 2(d) of the Act does not lend any assistance as it refers to the Commissioner of Police where such an officer has been appointed. In Rule 2(f) of the Rules the District Magistrate includes ''in relation to any district or part thereof an Additional District Magistrate or any other officer specially empowered in this behalf by the Government of the State concerned." Reference may also be made to the definition of ''authority'' or ''officer'' in Rule 2(c) of the Rules. ''Authority'' or ''officer'' means except where otherwise specifically provided in these Rules, the District Magistrate or such other officer as may, from time to time, be notified in the official Gazette by the Central Government.

It is clear from the above that the District Magistrate in each district is the licensing authority for the grant of an arms licence for a single barrel or double barrel smooth bore gun. The District Magistrate in his discretion could grant the licence either for the whole of India or a State or for a part of the State or even for the district. In the present case the original licence granted was to be effective in the district of Jalaun only but subsequently In 1969 it was extended to Uttar Pradesh and Madhya Pradesh. It is, therefore, clear that the licence for this weapon could only be issued by the District Magistrate and not by any other authority under the Act.

The power to revoke the licence is granted u/s 17 of the Act. The relevant provisions may be quoted here:

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 be specified in the notice.

(2) ....

(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 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

(b) If the licensing authority deems it necessary for the security of 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; or

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

(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.

The licensing authority has also been given power to revoke a licence on the application of the holder thereof. The licensing authority is required to record in writing the reasons for suspension or revocation of the licence. The authority to whom the licencing authority is subordinate may by order in writing suspend or revoke a licence. Similarly a power has also been given to court while convicting the holder of a licence of any offence under the Act or the rules made thereunder to suspend or revoke the licence. A power of suspension or revocation of the licence has also been given to the appellate court or the High Court in exercise of its powers. The Central Government has also the power to suspend or revoke all or any licences granted under this Act throughout India or any part thereof. On the suspension or revocation of a licence under this section the holder of the licence has to surrender the licence without delay. It will thus be seen that the power to revoke a licence has been granted to the licensing authority. The licensing authority has to satisfy himself that one of the Clauses (a) to (e) of Section 17(3) or any of the provisions of Sub-section (4) to (9) is applicable. In the present case the order of the Commissioner shows that the licensing authority, exercised the power to revoke the licence u/s 17(3)(b) of the Act.

Great emphasis was laid on the use of the article ''the'' in Sub-section (3) of Section 17 before the words ''licensing -authority''. By this it was urged that it ought to be the licensing authority who had granted the licence. It appears to me that no such emphasis can be laid on this article ''the'' before the words ''licensing authority'' In Sub-section (3) of Section 17 for the reason that the article ''the'' had to be used in a grammatical sense at the commencement of this section. If the intention of the legislature was that the power to revoke vested only in the licensing authority who had granted the licence originally the Legislature would have made it clear by saying "The licensing authority who had granted the licence may revoke the licence". It is not permissible to interpret statutory provisions by reading in words or phrases which are not there. One of the cannons of the interpretation of the statutes is that it has to see as it is and the question of harmonious construction does not arise unless there is some contradictory indication. In the present case it has been seen that every Distt. Magistrate throughout the Indian Union is a licensing authority under the Arms Act. Every licensing authority u/s 17(3) is empowered to revoke a license. If his powers were restricted to those cases where he had granted the licence as District Magistrate the statute would have made a provision or restricted or curtailed his powers accordingly. There is nothing in the Act which would indicate that the power to revoke lay only in the licensing authority who had originally issued or granted the licence.

Reference was made to the provisions of Sections 19 - 24 of the Act to see that if a licensee was found abusing the terms of the licence or using it for any unlawful purpose he could be dealt with under any of the provisions of Sections 19 - 24 of the Act without recourse to the revocation of the licence. The emphasis was that these were the powers available to the District Magistrate of another district who was not the original licensing authority. I do not find any merit in this contention for these sections in Chapter IV pertain to specific matters and this can be done in appropriate cases. None of the provisions have anything to do with the revocation of licence. The power to demand production of licence, arrest of persons conveying arms under suspicious circumstances, deposit of arms on possession of licence ceasing to be lawful or even search and seizure by a Magistrate are for specific purposes and are gratned not only to the licensing authority but to a variety of officers under these provisions. In Section 19 the power is given to a police officer; in Section 20 to any Magistrate, any police officer or any public servant or any person employed or working upon a railway, aircraft, vessel or any other means of conveyance. The powers u/s 21 can be exercised by the District Magistrate, those under Sections 22 and 23 by any Magistrate. Therefore, the contention that in case a licensee who is residing in another district cannot be dealt with under the provisions of Section 17(3) but only under the provisions of Sections 19 - 24 is not correct. The powers under Sections 19 - 24 can also be exercised by the officers of the district where the licence was originally granted. These are additional powers than the one granted u/s 17(3) of the Act.

Reference was also made to second proviso to Rule 52(2) and Rule 54(2). In the second proviso to Rule 52(3) it is provided that where the licensing authority is other than the State Government, the licence may if he changes his place of residence, produce the licence or arms or both for inspection before the licensing authority of the place of his new residence to which the licensee may have shifted after the grant of licence. This is for the purpose of inspection of the arms. Rule 54 pertains to the renewal of licence. If a licence is granted by the licencing authority of one District and the licensee has permanently shifted to another district then in that event on occasion of each renewal of the licence the licensing authority who had originally granted the licence has to be intimated. These pertain to administrative matters. Otherwise the licensing authority of the district which granted the licence will have no way of knowing as to where the licence has been renewed. These provisions do not spell out a case that the power to revoke a licence vests only in that authority who granted the licence. Rules 52 and 54 pertain to the grant of original licence and the renewal of licence respectively. These do not affect the revocation of the licence.

As seen above, I do not find any provision in the Act or Rules which restricts the power of revocation of licence to the original licensing authority. The contention that the arms licence could only be cancelled or revoked by the authority which originally granted the licence is to my mind wholly untenable. The contention raised by the learned Counsel in this regard must, therefore, be rejected as devoid of mertis.

Before I refer to the other contention raised by the learned Counsel for the Petitioner a reference may be made to Sub-rule (1) of Rule 52. It reads:

Form of licence-(1) A licence in Form II, Form III, Form III-A, Form IV, Form v. or Form VI, if granted for more than a year to a person other than a bona-fide tourist as defined in Section 19(1)(b) of the Act, shall be in book form and shall contain the latest photograph of the licensee.

A perusal of the original licence which was produced before me shows that it was drawn up the brittle handmade paper in which the various initials of the District Magistrate or the Sub Divisional Magistrate indicating the renewals are shown from time to time. It is in a faded and disfigured condition. The requirements of the licence being in a book form cannot be over emphasised. Any person who has been issued an arms licence is supposed to carry the licence with him when he is moving with or is possessed of the weapon. The licence issued in the form as in the present case will perish in no time because of the vagaries of the weather in this country. It would be a problem of the licensee to keep it in a proper condition. Such a piece of paper would not be durable. The licensee in the present case appears to have pasted the licence on another sheet of paper for its protection. Such an important document as this requires to be in a book form. It is not understood why such an important document should not be in the form as is required under the rules. It is time that there is a full compliance of the requirement of Rule 52 in this respect.

The other point raised by the learned Counsel was that allegations were made that the Petitioner was helping dacoits in the region with his weapon and ammunition. Learned Counsel stated in the rejoinder affidavit that a case had been started against him u/s 216 IPC in this respect and he had been acquitted. Consequently, the plea on which the licence was sought to be cancelled was no longer there. A true copy of the order which is annexed to the rejoinder affidavit as Annexure RA-1 appears to be an order passed by the Judicial Magistrate First Class, Hamirpur in case No. 520 of 1981. No specific date of the order is mentioned although it is typed to be of January 1982. There is no reference any where in the order of the District Magistrate or of the Commissioner about any such case against the Petitioner. There is nothing in this connection in the writ petition either. It only finds place in the rejoinder affidavit. I do not see how this matter can now be considered. If the case was pending it should atleast have been mentioned in the writ petition and in the impugned order.

I have perused the order of the District Magistrate Annexure 3 as well the order of the Commissioner, Annexure 4 and I do not find any manifest error of law there to call for any interference in exercise of the power of this Court under Article 226 of the Constitution. This petition is accordingly dismissed, but there will no order as to costs.