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PARVEZ AHMAD versus STATE OF U.P. THRU' SECY. (HOME) & OTHERS

High Court of Judicature at Allahabad

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Parvez Ahmad v. State Of U.P. Thru' Secy. (Home) & Others - WRIT - C No. 34569 of 2003 [2006] RD-AH 7052 (31 March 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO25

CIVIL MISC. WRIT PETITION NO. 34569 OF 2003

Parvez Ahmad.                 ....Petitioner

Versus

State of U.P. through Secretary (Home)

U.P., Lucknow and others.     ...Respondents

***************

Hon'ble Rajes Kumar, J.

Present writ petition is directed against the order of the Commissioner dated 09.07.20203 passed in appeal under section 18 of the Arms Act against the order of the District Magistrate dated 25.02.2002 rejecting the appeal filed by the petitioner.

Petitioner has applied for the arm licence for self defence. The said application was rejected on the basis of the report of the                                police station Incharge Allahganj that the petitioner appears to be minor and is involved in the communal activities. It appears that earlier report of the police station Allahganj was given in favour of the petitioner but subsequently District Magistrate asked the Superintendent of Police, Shahjahanpur to make the enquiry and give the report. The aforesaid report was given by the police station Incharge, which was affirmed by Circle Officer and Superintendent of Police and on the basis of report application for grant of licence was rejected. Order of the District Magistrate has been upheld by the impugned order.

Heard learned counsel for the parties.

Learned counsel for the petitioner submitted that the petitioner was never involved in any case and no first information report was lodged against the petitioner. Petitioner was not found involved in any communal activity. It was submitted that initially report was given in favour of the petitioner by the police station Incharge, Allahganj but subsequently due to pressure of the Superintendent of Police, Shahjahanpur, report has been given otherwise.

Having heard learned counsel for the parties, I have perused the order of the Commissioner and order passed by the District Magistrate.

The Indian Arms Act, 1878 was intended to disarm the entire nation. Thereafter, the rigours of the Arms Act and rules thereunder was considered and it was found that it became difficult for the law abiding citizen to possess fire arm for self-defence whereas terrorists, dacoit-gangs and other anti-social or anti-national elements were using not only civilian weapons but also bombs, hand-grenades, Bren-guns, Sten-guns, .303 bore service rifles and revolvers of military type, for perpetrating heinous crimes against society and, therefore, after taking the opinion from the State Government, Arms Act, 1959 has been introduced with the intent to provide arms licence to the citizens for their self-defence etc. In the year 1983 an amendment was brought by the Amendment Act No.25 of 1983 keeping in view with the following object:

"The Arms Act, 1959 was enacted about twenty-two years ago. Of late there has been an increasing incidence of crime involving huge use of fire arms. Apart from unlicensed firearms, the involvement of licensed firearms in crime is also on the increase. The present bill, therefore, seeks, in the main, to ensure that firearms do not come into the possession of anti-social and elements and to provide for greater vigilance on the issue of licences for firearms and sale of transfer of these arms, and for stringent punishments for offences under the Act."

With the object to eliminate the unauthorized possession of arms another amendment was brought by Amendment Act No.39 of 1985 and Amendment Act 42 of 1988 provided more rigorous punishment on keeping of unauthorized arms.

Under Section 3 of the Arms Act, 1959 provision is made for grant of licence for acquisition and possession of firearms and ammunition read as follows:

"3. Licence for acquisition and possession of firearms and ammunition---

No person shall acquire, have in his possession, to 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;

Provided that a person may, withhold himself holding a licence, carry any firearm or ammunition in the presence or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder."

The consideration which would weigh with the licensing authority in the matter of grant of licence are set out in sub-section (3) of Section 13 which provides:

(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 tobe 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 smooth bore gun as aforesaid for such protection, or

(ii) in respect of point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle association licenced or recognized by 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."

A licence granted under Section 3 unless revoked earlier may continue for a period of three years. This provision is contained in Section 17 which deals with variation, suspension and revocation of licences.

Arms Act came up for consideration before the Constitution Bench in the case of Kailash Nath and others Vs. State of U.P. and others, reported in 1985 (22) ACC, 353. Constitution Bench held that licence under the Arms Act is a privilege and not a right. The Constitution Bench held as follows:

"A right is distinct from a mere privilege. The case of licence to possess or use fire arm is materially different from a case of licence to deal in or sell fire arms. Section 3 of the Arms Act, 1959 deals with acquisition and possession of fire arms or ammunition on the strength of a licence whereas Section 5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licence for acquisition and possession of fire arms is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful. In my opinion, the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the rights of an individual nor does it entail civil consequences. It may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen may apply for grant of a licence of fire arms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Article 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras (2). Article 21 is attracted only in cases of deprivation in the sense of total loss and accordingly has no application to the case of a mere restriction upon the right to move freely stands on an entirely different footing from the licence to carry on a trade or occupation."

Looking to the unprecedented increase of anti-social elements known as mafias and persons involving in communal activities and terrorism it has become more appropriate that the licence should be granted only on strict enquiry about the conduct and the activities of the person concerned. The licence granted should be periodically checked. In my view, 21 years age for making a person eligible to have arm licence is less. The possession of the arm licence requires more maturity and sense. Thus, in my view, while granting the licence the maturity of persons should also be considered. It is seen that the police officers gives its report very casually without making honest and fair enquiry about the conduct and the activities of the person concerned,  on various considerations and on account of which licences are being issued to such persons, who are involved in anti-social and criminal activities etc. which has resulted the tremendous increase in the crime and terrorism. Thus, in my view before granting the licence, a detailed and thorough enquiry with regard to the conduct and activities of the person should be conducted. In case if it is subsequently found that the report of the police officers are not correct, strict action should be taken against the said police officer, who has submitted the report.  It is told that in the villages keeping of arm has become a matter of status symbol. These arms are being exhibited and are being fired during the marriages and on other occasions as a status symbol while it is not the purpose for granting the licence. Thus, whenever and wherever arms are found in use on such occasions other than for the purpose for which licence is granted, same may be checked, confiscated and licence be cancelled.

The arms licence should be granted very rarely on a strict enquiry about the person who has applied for the arms licence. If there is little doubt about the activity and the conduct of the person and the arms being misused, the arms licence should be refused. Normally the arms should be in possession of Military, police or any other government agency involved in maintaining law and order situation and to protect the life of the citizens of the country. Casual issuance of arms licence to the private persons lead to the crime and terrorism. Court cannot shut its eyes to the present situation prevailing in the Country. It appears that the issuance of the arms licence has become a casual feature. It is casually given even to those persons whose conduct are not good and they are involved in the criminal activity. Arms licence and the arms should be periodically checked even after the issuance of the arms licence.

District Magistrate is under the obligation to maintain law and order in the District. He has a better knowledge about the conducts and the activities of the person residing in the district. It may happen that against a person, there is no FIR but if it is gathered that the person conduct is not good and he is involved in the communal or anti-social activities, the arms licence should not be given to such persons. The satisfaction of the District Magistrate with regard to above may not be interfered with unless found to be perverse or malafide.

It may be mentioned here that the above observation may not be misunderstood. Under the statute, the licencing authority is empowered to grant licence. Such power should be exercised fairly, honestly and on objective considerations. The person genuinely required licence should not be denied. It is expected from the licencing authority to make a fair enquiry and consider the matter objectively. His decision is always open to be scrutinized by the appellate authority and Court.

On the facts and circumstances, I do not find any reason to interfere with the order passed by the District Magistrate. It appears that initial report was without any enquiry merely on basis of facts mentioned in the application. But the subsequent report at the instance of the Superintendent of Police, Shahajahanpur is against the petitioner in which it was reported that petitioner was involved in communal activity. District Magistrate is the incharge of the district and is the licensing authority  for the grant of licence. It is discretion of the District Magistrate, which is material for the grant of the licence. If the District Magistrate was satisfied on the basis of the report of the police station Allahganj, that petitioner was not entitled for the licence. No interference is called.

Writ petition is accordingly, dismissed.

Dt.31.03.2006

R./


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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