Brij Raj Mishra vs Commissioner, Devi Patan Division Gonda and Another

Anil Kumar, J.—Heard Sri Pankaj Verma, learned Counsel for Petitioner and Sri Rakesh Kumar Srivastava, learned State counsel for Respondents.

By means of present writ petition, Petitioner has challenged the order dated 5.9.2007 ( Annexure No. 1) passed by opposite party No. 1, Commissioner, Devi Patan Division, Gonda District Gonda and the order dated 4.9.2006( Annexure No. 2) passed by opposite party No. 2, District Magistrate, Gonda.

3.The facts, in brief, as stated by learned Counsel for Petitioner are that the licensing authority/ District Magistrate, Gonda granted a fire arm licence No. 317 for SBBL Gun No. 8966 to the Petitioner.

On 16.8.2005, a show cause notice was served to the Petitioner by licensing authority inter alia stating therein that why his licence should not be cancelled. The said notice has been issued on the basis of report submitted by Superintendent of Police,Gonda on 13.8.2005.

On receiving the same, the Petitioner submitted his reply to the District Magistrate, Gonda through his counsel stating therein that out of five case shown against the Petitioner in the show cause notice, three cases i.e. case crime No. 62 of 1986, 114 of 2002 and 73 of 2005 have been finalized by the competent court of law in favour of the Petitioner in which he has acquitted on merit, whereas the one case i.e. N.C.R. No. 5 of 2002, is not in the knowledge of the Petitioner which is non-cognizable offence and now their remains only one case pending against him i.e. case crime No. 25 of 2002 under Sections 352, 504, 506 Indian Penal Code and 3(1)(x) SC/ST Act relating to police station Motiganj District Gonda in which there is no allegation of use of fire arm by the Petitioner and as such it was requested that his arm licence may not be cancelled on the basis of allegations made in the show cause notice.

However, by order dated 4.9.2006, District Magistrate after considering the reply submitted by the Petitioner, cancelled his arm licence.

Aggrieved by the same, Petitioner filed an appeal before the appellate authority /Commissioner, Devi Patan Division, Gonda District Gonda, dismissed vide order dated 5.9.2007, hence the present writ petition has been filed.

Learned Counsel for the Petitioner while assailing the impugned orders dated 5.9.2007 and 4.9.2006 passed by opposite parties No. 1 and 2 respectively submitted that they are based on the fact that a case crime No. 25 of 2002 under Sections 352, 504, 506 Indian Penal Code and 3(1)(x) of SC / ST Act is pending against the Petitioner as such there is no apprehension of breach of peace and misuse of arm licence, according to him the same cannot be a ground for cancellation of his arm licence so the said action is wholly arbitrary and on the said ground, his arm licence can not be cancelled.

Learned Counsel for the Petitioner further submitted that during the pendency of present writ petition in the said criminal case, Petitioner has been acquitted by the competent court of criminal law vide order dated 24.1.2009 a copy of which has been annexed as Annexure No. A-1 along with affidavit, filed in support of application for stay being C.M. Application No. 31880(W) of 2010 and in para-8 of the said affidavit, it is mentioned as under:

That it is relevant to mention here that the Petitioner has been acquitted in the said case registered vide case Crime No. 25 of 2002, under Sections 352, 504, 506 Indian Penal Code and 3(1)(x) SC/ST Act relating to police-station Motiganj District Gonda vide judgment and order dated 24.1.2009 passed by the learned Special Judge, SC/ST Act, Gonda in Special Sessions Trial No. 41 of 2004, State v. Brij Raj Mishra. A true certified copy of the above mentioned judgment and order dated 24.1.2009 is being annexed herewith as Annexure No. A-1 of the affidavit.

It is submitted on behalf of the Petitioner that till date no counter affidavit has been filed by the official Respondents to the above said facts, hence once the Petitioner is acquitted in the criminal case then his arm licence should be restored. In support of his case, he placed reliance on the judgment report in 2002 (2) LCD 913, Rayees Ahmad v. State of U.P. and Ors. Accordingly, it is submitted by learned Counsel for Petitioner that the order under challenge may be set aside.

On the other hand, Sri Rakesh Kumar Srivastava, learned Standing Counsel submitted that the order passed by official Respondents, are perfectly valid,passed on the basis of material evidence on record, and hence needs no interference by this Court. He further submits that the order in question has been passed by Respondents after taking into fact that there is apprehension of breach of peace, if the arm licence is kept with Petitioner, so the arguments as advanced on behalf of the Petitioner that the arm licence of Petitioner cannot be revoked on the ground of criminal cases is pending before the competent criminal court has got not force liable to be rejected and the present petition deserves to be dismissed.

I have heard the learned Counsel for the parties and gone through the record.

Question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act has been dealt with by a Division Bench of this Court reported in Sheo Prasad Misra Vs. The District Magistrate and Others, wherein after placing reliance on the la as laid down by another Division Bench reported in 1972 ALJ 573, Masi Uddin v. Commissioner, Allahabad, it has been held that mere involvement in criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking the license cannot be passed on the said basis.

Further, in the case of Habib v. State of U.P. reported in 2002 ACC 783 it has been held as under:

The question as to whether mere involvement in a criminal case or pendency of a criminal case can be a ground for revocation of the licence under Arms Act, has been dealt with by a Division Bench of this Court reported in Sheo Prasad Misra v. The District Magistrate, Basti and Ors. wherein the Division Bench relying upon the earlier decision reported in Masi Uddin v. Commissioner, Allahabad, found that mere involvement in criminal case cannot in any way affect the public security or public interest and the order cancelling or revoking the licence of fire arm has been set aside. The present impugned orders also suffer from the same infirmity as was pointed out by the Division Bench in the abovementioned cases. I am in full agreement with the view taken by the Division Bench that these orders cannot be sustained and deserve to be quashed and are hereby quashed.

In the case of Fakir Chand v. Comnr. Meerut Mandal, Meerut reported in XI 2002 ACC 518 it has been held as under:

The licensing authority and the appellate authority simply referred to the report of the station officer of the police station, which was not proved by him. The same was thus legally not admissible in evidence. It is not disputed that the station officer, who submitted the report, was not present personally at the place of occurrence, therefore, he could not have any personal knowledge of the incident and the case of the prosecution has not been supported by the prosecution witnesses in the criminal court. The said case, therefore, resulted in clear acquittal of the accused persons. The judgment and order passed by the criminal court dated 6.9.1997 has become final which is binding upon the parties. Thus at present there are contradictory and conflicting findings recorded by the authorities/courts below about the same incident, therefore, the submission, made by the learned Standing Counsel cannot be accepted. In view of these facts, validity of the impugned orders cannot be sustained.

The said view was further reiterated in the case of Ram Sahehi v. Commissioner, Devi Patan Division, Gonda and Anr. reported 2004 (22) LCD 1643.

In the case of Ram Karpal Singh v. Commissioner, Devi Patan Mandal, Gonda and Ors. reported in 2006 (24) LCD 114. this Court held as under:

There is yet another reason that during the pendency of the present writ petition, the Petitioner has been acquitted from the aforesaid criminal cases and at present there is neither any case pending, nor any conviction has been attributed to the Petitioner, as is evident from Annexure SA-1 and II to the supplementary affidavit filed by the Petitioner. In this view of the matter the Petitioner is entitled to have the fire arm licence. It is submitted by Petitioner''s counsel that the Petitioner has been acquitted of the charges

In view of above mentioned fact and law, the order for cancellation of arm licence does not satisfy the conditions as provided under arm licence Act, hence the order dated 5.9.2007 (Annexure No. 1) passed by opposite party No. 1, Commissioner, Devi Patan Division, Gonda and the order dated 4.9.2006 (Annexure No. 2) passed by opposite party No. 2, District Magistrate, Gonda., are set aside. Petitioner shall be entitled to retain the arm licence in question unless prohibited by some other order or directions passed by the competent authority in accordance with law.

With the above observations, the writ petition is allowed.