Shashi Bhusan Singh vs The State of Madhya Pradesh

Sanjay Yadav, J—Heard on admission.

Order-dated 20.3.2015 is being assailed; whereby, application preferred by the petitioner for transfer of arms licence No. 02/2008 has been rejected by State Government. The order is in the following terms -

Facts borne out from the record briefly are that petitioner applied for transfer of arms license No. 02/2008 after death of his father Kedar Singh. The District Magistrate Narsinghpur furnished his report on 3.3.2014, wherein in Clause 17 which provides for ''as to whether applicant is having serious threat of life from any person or group of persons. A negative note has been put down, which is being extracted hereinbelow -

The Deputy Commissioner (Revenue) Jabalpur Division, Jabalpur vide his communication dated 31.5.2014 forwarded the recommendation of Commissioner.

The licensing authority i.e. State Government on the opinion that proposal sent by District Magistrate and Commissioner is not satisfactory, rejected petitioner''s application for transfer of arms licence by impugned order, which is being questioned on the ground that the same is a non-speaking order and the rejection order is wrongly passed without appreciating the recommendation of the District Level Authorities. It is urged that if there is no adverse report then incumbent it is upon the respondent-State to have granted the licence to the petitioner as sought for as it was for protection of one''s life and liberty. It is urged that in absence of any adverse report, the grant of arm''s license is a rule rather exception.

On these grounds, petitioner seeks quashment of impugned order dated 20.3.2015 and a suitable direction to respondents.

Learned Government Advocate who appears on advance notice supports the order passed by the State. It is urged that the order contains reasons and is not a cryptic order. The reasons it is urged need not be in paragraphs and could be even in a single line, if it is self-explanatory. It is contended that the discretion being vested with the licensing authority i.e. State Government who having considered the report and finding that there is no cogent material on record as would warrant transfer of arms licence in favour of petitioner, as it is evident from Clause 17 of the proposal that there is no serious threat of life of the petitioner from any person or any group of persons; Licensing Authority was well within its discretion in rejecting the application for transfer of arms licence.

Considered the submissions.

In India, right to carry arms is a privilege conferred by the Act i.e. Arms Act, 1959 (for short ''the Act'') and the Rules framed thereunder viz. Arms Rules, 1962, it is not a fundamental right. The Act enables a person who has completed twenty-one years of age, has not been sentenced on conviction of any offence involving violence or moral turpitude to imprisonment for any term at any time during a period of five years after the expiration of the sentence; has not been ordered to execute under Chapter VIII of the Code of Criminal Procedure 1973, a bond for keeping the peace or for good behaviour for the period of such time (Section 9(1)(a) of the Act) and of unsound mind if not found fit under Section 14(1) of the Act.

Sub-Section (1) of Section 3 of the Act stipulates that -

(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder.

Sub-Sections (1), (2) and (2-A) of Section 13 of the Act stipulates -

"13. Grant of licenses.- (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.

(2A) 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 license 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."

Section 14 of the Act provides that :

"14. Refusal of licenses- (1). Notwithstanding anything in section 13, licensing authority shall refuse to grant-

(a) a license under section 3, section 4, or section 5 where such license is required in respect of any prohibited arms or prohibited ammunition:

(b) A license in any other case under Chapter II,-

(i) where such license is required by a person whom then 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 license 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 license.

The licensing authority shall not refuse to grant any license to any person merely on the ground that such person does not own or possess sufficient property.

Where the licensing authority refuses to grant a license 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."

Thus, besides there being a legal bar of acquiring, possessing or carrying any firearm, the provisions contained under Section 13(2A) of the Act gives the expansive discretion to licensing Authority "either grant the license or refuse to grant the same". While exercising the power, licensing authority is not bound by the report sought for and furnished under sub-section (2) of Section 13 of the Act. It is still within its discretion to refuse the grant of license for any reason unfit for a license under the Act. In this context, a reference can be had of the decision of a full Bench of Patna High Court in Kapildeo Singh Vs. State of Bihar and Others, AIR 1987 Patna 122 : (1987) 35 BLJR 443 : (1987) PLJR 385 wherein it is held :

"It would be manifest from the aforesaid provisions that under the Act there is first a legal bar for having in possession or carrying a firearm unless a valid license is first secured in accordance with the provisions of the Act. Secondly, even the original grant under Section 13(2A) is vested entirely in the licensing authority and it seems that the widest discretion has been given to it. Even after conforming to the procedural requirements, the licensing authority may, as regards the general category of arms, either grant the licence or refuse to grant the same. This discretion in this context has perhaps been deliberately kept untrammelled. Further, under Section 14 the law mandates a refusal to grant licence even where the licensing authority has reason to believe that the applicant is for any reason unfit for licence under the Act. The larger tilt of the law in this context is thus somewhat too plain to call for further elaboration."

Furthermore, the contention that the order refusing the grant does not record reasons and, therefore, stands vitiated. It is observed from the provisions contained under Section 13(2A) read with Section 14(1)(b)(i) of the Act that recording of reason in refusing to grant the license is not postulated. Thus, in a case as the present one if the licensing authority is satisfied in a given facts that there is no threat from any group or person on the life or property of the applicant is within its right in refusing to grant licence. It is pointed out by learned Government Advocate that under similar circumstances, a Division Bench of this Court in Umesh Yadav v. State of M.P. [Writ Appeal No. 1076/2013] decided on 6.2.2014 relying on the policy dated 26.3.2011, has upheld the rejection order. In Umesh Yadav (supra), it is held -

"The authority having processed the proposal submitted by the appellant keeping in mind the policy expounded by the State Government and the Central Government, as is noted in the communication dated 26th March, 2011 (Annexure P-9) addressed to all the Commissioners within the State of M.P., no fault can be found with the conclusion reached by the said authority. The relevant portion of the said policy document, reads thus:-

Notably, the policy of the Central Government/Union of India as well as State Government that only persons having threat perception should be issued licence subject to verification, has not been challenged by the petitioner. In other words, the policy recognises exception to the rule of prohibition of acquisition or possession of fire-arms by persons within the specified area."

In the case at hand, Licensing Authority having satisfied in the given case that there is no cogent material on record as would warrant transfer of arms licence in favour of petitioner, as it is evident from Clause 17 of the proposal that there is no serious threat of life of the petitioner from any person or any group of persons; was well within its right in rejecting the application for transfer of arms licence.

Consequently, petition fails and is dismissed. No costs.