Vishwanath Sahu vs The State of Madhya Pradesh

Sanjay Yadav, J.—Record perused. Heard the respondent.

Order dated 01.07.2010 and its affirmation by order dated 19.07.2010 rejecting petitioner''s application for grant of Pistol/Revolver license has been rejected.

The reasons for rejection find mention in the impugned order note-sheet dated 01.07.2010 which records :

No material has been commended at to establish threat to petitioner''s life and property and for an unforeseen threat the petitioner already has a twelve bore licence.

In India, right to carry arms is a privilege conferred by the Act, it is not a fundamental right. The Act which 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 who has not been subjected 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 and of sound mind or if not found fit (Section 9(1)(a) and Section 14A of the Arms Act 1959).

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 :

Refusal of licenses-

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) 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, 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, regarding 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)(3) 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 the grant of license. It has been succinctly observed in Principles of Statutory Interpretation : 13th Edn. 2012, by the learned Author, in the present context, : �But if the statute does not require either the recording of satisfaction or the reasons therefor, an order made without recording the satisfaction as to fulfillment of the conditions on which the exercise of the power depends, does not make the order invalid. In such cases it is the fact of satisfaction of the authority which gives rise to jurisdiction and not the recording of the satisfaction. The difference only is this, that if the satisfaction has been recorded, a presumption will arise that the authority was really satisfied and the person who disputes the existence of such satisfaction will have to establish the non-existence thereof; whereas if the satisfaction has not been recorded and a person challenges the existence of satisfaction, the authority will have to establish that it was in fact satisfied before passing the order. This principle will apply whether the order in question is executive or in the nature of subordinate legislation�. (Chapter V Synopsis 6 Page 438).

In the case at hand, the licensing authority being satisfied in the given facts that there is no threat from any group or person to the petitioner''s life or property was within his right to refuse the grant of license as would warrant an interference.

In the result, petition fails and is dismissed. No costs.