Fakir Chand vs Commissioner,Meerut Mandal Meerut & Anr.

R. H. Zaidi, J.—Heard learned Counsel for the petitioner, learned standing Counsel and also perused the record.

By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 18121991 passed by the District Magistrate, Meerut, the licensing authority cancelling the licence of the petitioner of the D.B.B.L. .12 bore gun and the order dated 181995 passed by the respondent No. 1, the Commissioner (appellate authority), dismissing the appeal filed by the petitioner.

It appears that the proceedings under Section 17 of the Arms Act were initiated against the petitioner. A showcause notice was served upon the petitioner by the licensing authority to showcause as to why the licence of D.B.B.L. gun No. 491 possessed by him be not cancelled as his gun was misused by his sons in the incident alleged to have taken place on 991989. The petitioner submitted his explanation refuting the allegations made against him. It was stated that he used to keep his gun in an almirah under lock, the keys of which always remained in his possession and nobody was ever permitted to open the almirah. It was contended that the gun in question, was never used by any one of his sons and the allegations made to the contrary were false.

The licensing authority, as is evident from the impugned order, did not record the oral evidence either in support or against in the case and it was held that the gun in question was used by one of the sons of the petitioner in the said incident. Having recorded the said findings, he has cancelled the licence of the petitioner by order dated 18121991. Challenging the validity of the said order, the petitioner filed an appeal before the appellate authority. The appellate authority also affirmed the findings recorded by the licensing authority and dismissed the appeal by its judgment and order, dated 181995. Hence the present petition.

It has been urged by the learned Counsel for the petitioner that the petitioner along with other persons was challaned in Criminal Case No. 222/89 under Sections 147/148/149/323/307/504, I.P.C. in respect of the aforesaid incident in which the gun in question was alleged to be misused. The prosecution has utterly failed to prove its case. Consequently, the petitioner and other persons were clearly acquitted by the Criminal Court by its judgment and order dated 691997, which has become final. Certified copy of order dated 691997 has been filed along with the supplementary affidavit of Sri Fakir Chand filed on 882001. Therefore, the impugned orders are liable to be quashed. It was also urged that from the material on the record it was not proved that the gun in question was ever used by the petitioner or any other person. The findings recorded by the authorities below are based on no evidence. On the other hand, learned Standing Counsel supported the validity of the impugned orders. It was urged that the writ petition was concluded by concurrent findings of fact and the same was, therefore, liable to be dismissed.

I have considered the submission made by the learned Counsel for the parties.

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 691997 has become final which 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 writ petition succeeds and is allowed. The orders dated 1811991 and 181995 passed by the authorities below, are hereby quashed. The respondent No. 2 is directed to return the gun and the licence of the petitioner within fifteen days from the date a certified copy of this order is communicated to him.