Rajeshwar Mishra vs State of U.P. and Others

Ashok Bhushan, J.—Heard counsel for the Petitioner and the learned standing counsel. Supplementary-affidavit filed today be accepted on record.

By this writ petition, the Petitioner has prayed for quashing order dated 3.12.2004, by which the Disthe nearest police station. Section trict Magistrate has issued show cause notice to the Petitioner as to why the arm licence be not cancelled and by the same order has suspended the arm licence.

Shri H. K. Mishra challenging the order contended that the arm licence cannot be suspended during pendency of any criminal case. He further contended that District Magistrate has no jurisdiction to direct for deposit of the arm till the licence is not cancelled. He has placed reliance on the Full Bench judgment of this Court in Chhanga Prasad Sahu v. State of U. P. and Ors., 1984 AWC 145 and the judgment of learned single Judge in Satish Chandra v. State of U. P. and Anr. 2003 (46) SCC 248.

I have considered the submissions and perused the record. The submission of the counsel for the Petitioner is that licence of the Petitioner cannot be suspended during pendency of enquiry as laid down by the Full Bench in C. P. Sahu''s case (supra). The Full Bench of this Court in C. P. Sahu''s case (supra) has held that if the District Magistrate has not come to a definite conclusion that there are sufficient materials and grounds for suspension of the arm licence and he initiates enquiry to find out as to whether there are sufficient material or not, he has no jurisdiction to suspend the arm licence. However, in the same judgment Full Bench laid down in paragraph 18 that if the District Magistrate is satisfied that possession of arms by the licensee is going to endanger public peace and safety, it can straightaway and without holding any enquiry proceed to revoke/ suspend the arms licence.

The second submission of the counsel for the Petitioner is that after suspension of the license the arms cannot be directed to be deposited unless the arm licence is cancelled. Reliance has been placed by the counsel for the Petitioner on the judgment of this Court in Satish Chandra''s case (supra). In Satish Chandra''s case (supra) learned single Judge proceeded on the assumption that the proposition is undisputed. Following observation has been made by the learned single Judge.

This proposition of law is undisputed that the Additional District Magistrate has no authority to get the fire arm deposited unless the licence has been cancelled.

The attention of learned single Judge was not invited to Section 21(1) of the Arms Act, 1959, which specifically provides that after suspension of arm licence the possession of the licensee ceased to be lawful and the said arm is to be deposited with the officer-in-charge of the nearest police station. Section 21(1) of the Act is quoted below :

Deposit of arms, etc., on possession ceasing to be lawful.-(1) Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification u/s 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury.

In view of the specific provision in the Act as contained in Section 21(1) it cannot be said that after suspension the District Magistrate cannot direct for deposit of the arm. The judgment of Satish Chandra''s case (supra) proceeded on the assumption that proposition is undisputed which cannot help the Petitioner in the present case. Another judgment relied by counsel for the Petitioner is Prabhu Dayal Yadav v. State of U. P. and Ors., 2001 (43) SCC 114. In the said judgment learned single Judge observed that :

It remains undisputed that a District Magistrate has no authority to order for deposit of the gun unless the licence has been cancelled.

As noted above, the said judgment proceeds on the assumption that the proposition is undisputed. The attention of the learned single Judge was not invited to Section 21 of the Arms Act, 1959, which specifically provides that after suspension of the arm licence the possession of licence ceased to be lawful and the arms has to be immediately deposited. The above case does not help the Petitioner in any manner. Both the submission raised by the counsel for the Petitioner cannot be accepted.

The counsel for the Petitioner lastly contended that Petitioner shall submit his reply to the notice and the District Magistrate may be directed to consider the same, take a final decision expeditiously. In view of the aforesaid submission, in case Petitioner files a reply to the notice within one month from today, the District Magistrate may consider and take a final decision expeditiously preferably within a period of two months from the date of production of a certified copy of this order. The Petitioner shall deposit his arm with the registered arm dealer within one week.

The writ petition is disposed of with the aforesaid direction.