Rohtas Singh vs State of U.P. and Others

Dilip Gupta, J.—This petition seeks the quashing of the order dated 25th July, 2011 passed by the District Magistrate, Meerut by which the application filed by the petitioner for grant of firearm licence was rejected. The petitioner has also sought the quashing of the order dated 28th June, 2012 passed by the Commissioner, Meerut Division Meerut by which the appeal filed by the petitioner for setting aside the aforesaid order passed by the District Magistrate was dismissed.

The order dated 25th July, 2011 passed by the District Magistrate, Meerut, after referring to the directions issued by the Government in the circular dated 31st March, 2010, mentions that the applicant has not disclosed any specific reason as to why he requires the fire arms and there is no threat perception. The petitioner filed an appeal before the Commissioner and interestingly the Commissioner while dismissing the appeal has relied upon the provisions of Section 17(3) (b) of the Arms Act, 1959 which provides that the arms license can be suspended and revoked if the District Magistrate is of the opinion that it is so necessary for the security of public peace and for public safety.

Learned counsel for the petitioner has submitted that the District Magistrate and the Commissioner committed an illegality in rejecting the application filed by the petitioner for grant of firearm licence as the reasons assigned by them are not in conformity with the provisions of Sections 13 and 14 of the Arms Act, 1959 (hereinafter referred to as the ''''Act'').

Learned Standing Counsel has, however, states that it is not necessary to file the counter affidavit and the writ petition may be disposed of at this stage.

I have considered the submissions advanced by the learned counsel for the parties.

A learned judge of this Court in Writ Petition No.16565 of 2012 (Dinesh Kumar Pandey Vs. State of U.P. & Ors.) connected with Writ Petition No.15883 of 2012 (Rajesh Pandey Vs. State of U.P. & Ors.) decided on 25th July, 2012 examined in detail the provisions of the Act dealing with grant/refusal of firearm licence. The District Magistrate had rejected the applications filed by the petitioners for grant of firearm licence on the ground that they failed to specify any special threat to personal security and had also not disclosed extraordinary circumstances which may justify the necessity of keeping the firearm with them. The Court after examining Sections 13 and 14 of the Act observed as follows:

"52. The grant or refusal of licence by licensing authority is not his absolute discretion but is further subjected to other provisions of Chapter III. It takes the Court to subsection (3) of Section 13 and Section 14. Subsection (3) of Section 13 obliges the licensing authority to grant a licence if the conditions contemplated therein exist and are satisfied. One of such contingencies is, where the person applying for grant of licence under Section 3 wants to possess or carry a smooth bore gun having a barrel of not less than twenty inches in length. Here it refers to the kind of weapon which the applicant seeking licence intends to possess or carry. The second part of this clause, i.e., subsection (3)(a)(i) is the user of such weapon. It must be either for protection or sport or in respect of muzzle loading gun to be used for bona fide crop protection. There are three kinds of purposes and objectives provided; and one of it is protection. If an applicant seeks a licence in respect to a weapon, i.e., smooth bore gun having a barrel of not less than twenty inches of gun for protection, the licensing authority is obliged to grant such licence under Section 3 of Act, 1959. Similarly, if the aforesaid kind of weapon is required for sport the licensing authority is to grant it and it is mandatory. The third is a different kind of firearm, namely, a muzzle loading gun and if it is required for bona fide crop protection, the licence under Section 3 shall be granted. Proviso to subsection (3)(a)(i) of Section 13 gives a discretion to licensing authority where the licence is required for bona fide crop protection, that instead of muzzle loading gun if he finds that it is not sufficient for crop protection, he may, in that case, grant licence in respect of any other smooth bore gun having a barrel of not less than twenty inches in length for such protection. In the present time, this provision is virtually otiose and redundant.

The next clause, i.e., subsection (3)(a)(ii) of Section 13 obliges licensing authority to grant licence under Section 3 in respect to a point twenty two bore rifle or an air rifle if sought to be used for target practice by a member of a rifle club or rifle association, licensed or recognised by Central Government.

Subsection (3)(b) of Section 13 talks of residuary cases and provides that in a licence under Section 3 in any other case which necessarily would mean that the cases not covered by subsection (3)(a) and in respect to licences under other provisions of ChapterII, namely, 4, 5, 6, 10 or 12, he shall grant the same if he is satisfied that the person by whom licence is required had a "good reason" for obtaining the same. The word "good reason" obviously has not been defined under the Act 1959. It is this phrase which leaves a very wide area of discretion or scope of consideration upon the licensing authority which has been used in various ways and construed to the level of an absolute and unbridled discretion and sheer subjective satisfaction of licensing authority to decide whether the licence should be granted or not.

Now I come to Section 14 which provides certain conditions, existence whereof makes it obligatory upon licensing authority to refuse grant of a licence. This is a negative provision restricting power of licensing authority and making obligatory for him to deny licence, if conditions therein are satisfied.

The rigour of this provision is writ large from the fact that it has been given overriding effect over Section 13, meaning thereby, if the situation contemplated in Section 14 exists and even if something under Section 13 comes in favour of person seeking licence, the licensing authority would have no option but to refuse to grant a licence. However, a complete reading of Section 14 reveals that heading of provision is "refusal of licences" but it contains two types of situations, one, where refusal is mandatory, and, secondly, the conditions on the basis whereof refusal shall not be founded. It also controls the procedure i.e. the contents of the order of the licensing authority if he refuses to grant a licence.

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Then comes residuary kind of provision, namely, subsection (1)(b)(ii) of Section 14 which provides, if licensing authority deems necessary for "security of public peace or for public safety" in that case also, he shall refuse grant of licence under Sections 3, 4 or 5 in respect of nonprohibited arms or nonprohibited ammunitions.

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Lastly, subsection (3) of Section 14 protects from a sheer arbitrary and whimsical exercise on the part of licensing authority in denying licence, by making it obligatory upon him to record, in writing, "reasons" for refusal. This provision is in two parts. Recording of reasons for refusal of grant of licence is mandatory and this is one condition which cannot be ignored, omitted or dispensed with. The second aspect is, the communication of such reasons to the concerned person. Statute says, if the person who has been refused grant of licence, so demands, a brief of statement of recorded reasons shall be supplied to him. This is the general requirement of statute but an exception is where the licensing authority forms opinion that communication of those reasons shall not be in public interest, it may not convey those reasons to the person concerned. Subsection (3) of Section 14 incorporates within itself the observance of one of the principle of natural justice, making application of mind and consideration of application on the part of licensing authority objective, so that no decision may be taken in a sheer arbitrary manner. The principle of speaking order is incorporated herein.

I have no hesitation thus in observing that a cumulative and harmonious reading of Sections 13 and 14 leave no manner of doubt that an objective consideration is mandated on the part of licensing authority. He cannot deny grant of license to a person on his sheer whims, caprices, imagination etc. Here it answers the requirement of reasonableness also. The procedure is consistent with the requirement of principle of natural justice. To some extent, it brings into consideration Article 14 of the Constitution. One cannot say that under the garb of the words, "any reason", "unfit for grant of licence", or the absence of a "good reason" for obtaining license, a licensing authority is empowered to deny licence on sheer flimsy grounds, namely, he will grant it only to those who have white hair or blue eyes or having a particular height and like. Similarly, the licensing authority cannot discover within "good reasons" for obtaining licence certain ex facie absurd reasons, namely, if a person belongs to a particular political party, or, that a person if belongs to a particular class or caste, and so on. These considerations are impermissible and cannot be construed a "good reason". In the garb of "good reason" for obtaining licence, one also cannot stretch to a situation which would be virtually impossible to be performed or placed on record.

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Licensing and appellate authority both have held that the applicant could not show as to what is the special threat which may justify a firearm licence for their personal safety and security. Learned Chief Standing Counsel could not show any provision under the Act which contemplates that firearm licence can be granted only when a person has special kind of threat perception to his life. The term "special threat" is extremely vague and even the learned Chief Standing Counsel could not explain it. This Court required him to tell as to how a person can predict when, where and at what time and from whom his person and property can be or shall be put in peril. Such a forecast is almost impossible. If one would have known a definite threat and plan, as a prudent citizen, he would immediately approach the police making a complaint and thereafter it shall be responsibility of the State to take appropriate action so that such person or planner may not achieve his vicious goal by committing crime but when the firearm licence is required for personal safety in general, the individual''s perception of threat to their life and property has to be considered taking into account general law and order situation in the area, nature of his job and various other factors. It is only a kind of keeping oneself in the State of readiness in case such an exigency of assault etc. on a person and property arises and not otherwise.

I specifically required the learned Chief Standing Counsel to explain as to what particulars an applicant must disclose along with his reason of personal safety and security so as to constitute a "good reason" but he failed to give even a single instance in this regard. Very fairly he said that even the concerned officers were not able to tell anything.

In my view, the phrase "good reasons" cannot be retermed to make it "extraordinary reasons", "very good reasons", "outstanding reasons", "extra reasons", etc. When legislature has used certain words, the same must be read, interpreted and applied in their ordinary sense unless such an application renders the provision ambiguous, impracticable or results in wholly unwarranted consequences. It is not the case of respondents that the term "good reason", if read in its ordinary meaning any of such thing is likely to occur. Therefore, the circumstances which would be covered by phrase "good reasons", cannot be excluded in any manner by restricting the aforesaid phrase to a different kind of situation, and that too, either on volition and arbitrary discretion of individual officials or in the hands of Government by issuing an executive order.

At this stage, learned Chief Standing Counsel instead of replying to the specific query of the Court directly referred the Government Circulars/orders issued from time to time, filed as Anenxure CA1 CA4 to counter affidavit sworn by Sri Hrishikesh Bhaskar Yashod, presently, District Magistrate, Deoria, to contend that it is in the light of guidelines provided therein that licences are not granted to possess or carry a firearm licence unless the licensing authority finds with certainty an imminent apprehension of danger to one''s life and liberty.

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Thus at the pain of repetition, I may say that my reading of the aforesaid Government Orders shows that if an applicant of firearm licence is able to show the existence of factors as enumerated above, he must be granted a firearm licence and should not be denied unless there are other relevant factors regarding his conduct etc. The aforesaid Government Orders however, nowhere prohibit that in cases which are otherwise within the domain of Section 13 of the Act and fulfil all requisites therein, still they shall not be granted licence unless what has been stated in the aforesaid Government Order(s) is found to exist. I am constrained to observe further that any other view of the matter would render the aforesaid Government Orders ultra vires of Act 1959 for the reason that even the Government by issuing an executive order cannot add or diminish the power of licensing authority which has to be exercised in accordance with Sections 13 and 14 of the Act 1959. Moreover, there is no provision, at least, none has been shown to this Court under Act 1959 which empowers the Government to issue such an executive order so as to control statutory consideration of licensing authority. The efficacy of a statute cannot be expanded or restricted by an executive order."

(emphasis supplied)

The Court, accordingly, quashed the impugned orders and directed for consideration of the applications filed by the petitioners therein in the light of the observations made by the Court.

Similar reasons have been assigned by the District Magistrate in the impugned order after placing reliance on the circular dated 31st March, 2010. The Commissioner completely failed to realise that he was hearing an appeal against the order passed by the District Magistrate for rejecting the application filed by the petitioner for grant of firearms license and he was not hearing an appeal against an order for cancellation of the firearms license. The orders are, therefore, liable to be set aside.

The order dated 25th July, 2011 passed by the District Magistrate, Meerut and the order dated 28th June, 2012 passed by the Commissioner, Meerut Division Meerut are, accordingly, set aside. The District Magistrate, Meerut shall now examine the application filed by the petitioner for grant of firearm licence in accordance with the observations made by the Court in the judgment and order dated 25th July, 2012 passed in Writ Petition No.16565 of 2012 connected with Writ Petition No.15883 of 2012 and pass appropriate orders within a period of six weeks from the date a certified copy of the order is filed by the petitioner before the District Magistrate.

The writ petition is allowed to the extent indicated above.