Mahendra Bhatt vs State Of Uttarakhand & Another

Sudhanshu Dhulia, J

The petitioner's arms licence for 315 bore rifle No.50444 has been cancelled by the District Magistrate, Udham Singh Nagar vide order dated 18.01.2017 which has been affirmed in appeal by the Divisional Commissioner vide its order dated 25.08.2017. Aggrieved the petitioner has filed the present writ petition before this Court.

The petitioner was granted a licence for a rifle by the District Magistrate and subsequently the petitioner had purchased a rifle. On 11.10.2009, an FIR was lodged by one Prakash Chandra Arya alleging that he is a person belonging to the Scheduled Caste Community and the petitioner along with other persons who were armed with weapons had assaulted him and tried to take possession of his land. The FIR was registered under Sections 147, 148, 149, 452, 504, 506, 323 and 427 of IPC and under Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The case of the petitioner before this Court is that against the said FIR, he filed a criminal miscellaneous application under Section 482 of the Code of Criminal Procedure before this Court, in which Section 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was deleted and now the petitioner is facing trial under sections 147, 148, 149, 452, 504, 506, 323 and 427 of the IPC.

Meanwhile, the District Magistrate, Udham Singh Nagar vide order dated 18.01.2017 has cancelled the licence of the petitioner. The FIR which forms the basis of the cancellation of the petitioner's licence, nowhere mentions that when the petitioner has assaulted or allegedly assaulted and threatened the complainant, when he was armed with the weapon in question i.e. rifle. The FIR only says that the petitioner was carrying a countrymade pistol and a sword. The District Magistrate, however, has cancelled the arms licence of the petitioner on mere apprehension that since a criminal case is registered against the petitioner and the probabilities that a licenced weapon can be used, such possibility of misuse cannot be ruled out.

A person is given a right to carry arms only under the provisions of the Arms Act, 1959 (from hereinafter referred to as the "Act"). A person has to move an application before the concerned District Magistrate for grant of licence for a weapon he seeks to acquire and the Licensing Authority i.e. concerned District Magistrate has the power to grant a licence under Section 13 of the Act. Section 13 of the Act reads as under:-

"13. Grant of licences.-(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.

[(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.

(2-A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:

Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.]

(3) The licensing authority shall grant-

(a) a licence under section 3 where the licence is required-

(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection:

Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection; or

(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;

(b) a licence under section 3 in any other case or a licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same."

The power to refusal for grant of licence is given under 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."

The aforesaid provisions show that the Licensing Authority can refuse to grant a licence to a person, if a person is of unsound mind or unfit to carry a licence under the Act or where the Licensing Authority feels that it is necessary for the security of public peace or public safety that such a licence be refused by the Licensing Authority and for other reasons which is given under Section 14 of the Act.

The power to variation, suspension and revocation of a licence is given under sub-section (3) of Section 17 of the Act, which reads as under:-

"17. Variation, suspension and revocation of licences. - (1)....

(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 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 sub-section (1) requiring him to deliver-up the licence."

The mere apprehension shown by the Licensing Authority for cancelling the arms licence of the petitioner is regarding the security of public peace or public safety, and that the petitioner can misuse his licensed weapon. The only reason for cancellation of the petitioner's licence is that the FIR has been lodged against the petitioner but the FIR itself does not disclose that the petitioner has misused the "weapon".

Learned counsel for the State has relied upon the decision of this Court passed in WPMB No.41 of 2006 "Gurdeep Singh @ Deepa Vs. State of Uttarakhand & others", and would argue that even the Licensing Authority can reject the licence on ground of conviction of a person in a criminal case. However, the facts of this case are totally different. In that case, the reasons for doing so were that the licence was revoked as there were number of cases against the petitioner and he was acquitted only in one case relating to Section 302 of IPC though many other cases were still pending against him. This is not the case of the present petitioner.

Learned counsel for the petitioner on the other hand has relied upon the decision of the Allahabad High Court passed in the case of Virendra Pal Singh Vs. State of U.P. & others reported in (2006) 54 ACC 418, where it has been said that the licence cannot be cancelled for the simple reason or the bald reason that a person is involved in a criminal cases. There must be a tangible and concrete material with the Licensing Authority for cancelling the licence.

Learned counsel for the petitioner has also relied upon paragraph no.13 of the decision passed by the Bombay High Court in the case of Ajay Jayawant Bhosale Vs. The Commissioner of Police reported in 2016 (SCC) Online Bom 5019. Paragraph no.13 of the aforesaid judgment reads as under:-

"13. The right to life and liberty are guaranteed under Article 21 of the Constitution of India. Arms licence is granted for personal safety and security after due enquiry by the authorities in accordance with provisions contained in the Arms Act, 1959. The provisions of Arms Act with regard to suspension or cancellation of Arms licence cannot be invoked lightly in an arbitrary manner. The provisions of the Arms Act particularly Section 13 to 17 indicate that once a licence is granted under the Act, the same shall be renewed from time to time unless there exist a ground of refusal as enumerated under Section 14 of the Act. Protection to life, property of citizen is responsibility of the State. It is only when person apprehends that machinery of State would not come to his help for protection, he/she applies for licence under the Act. The provisions of Section 17 A of the Arms Act indicate that arms licence can be cancelled or suspended if the licensing authority finds it necessary for the security of public peace or public safety. Merely because a criminal case is pending, the provisions of Section 17 of the Arms Act would not be attracted. Such provisions would be attracted in case the licensing authority finds that continuance of licence is detrimental to public peace or public security and safety. But the authority concerned will have to record a finding that how and under what circumstances and in what manner possession of arms licence could be contrary to the provisions of Section 17 B of the Arms Act. Each case is required to be considered on its own merits."

In view thereof, this Court is of a considered opinion that the Licensing Authority and the Divisional Commissioner have not applied their mind to existing laws on which the licence can be revoked. The order dated 18.01.2017 passed by the District Magistrate, Udham Singh Nagar and the order dated 25.08.2017 passed by the Appellate Authority are totally arbitrary.

Consequently, the writ petition is allowed. The orders dated 18.01.2017 and 25.08.2017 are hereby quashed and set aside.