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Virendra Singh v. District Magistrate Kanpur Dehat & Another - WRIT - C No. 507 of 2003  RD-AH 9956 (19 May 2006)
Civil Misc. Writ petition No. 507 of 2003
Virendra Singh Vs. District Magistrate and another
Heard learned counsel for the petitioner and learned standing counsel and perused the record. Learned counsel for the respondents was granted time to file counter affidavit, but counter affidavit has not been filed so far, in spite of order passed by this court dated 18.4.2006, that no further time shall be allowed to file counter affidavit.
The grievance of the petitioner is that his arms licence has been cancelled by District Magistrate, Kanpur Dehat-respondent no.1 vide impugned order dated 3.6.2002 (Annexure No. 3 to the writ petition) without any valid legal ground merely on the basis of the report of the police that a case had been registered against him being crime case No.210 of 2001, under sections 323, 504, 506 and 352 I.P.C. and 3 (1) (10) S.C./S.T. Act against him on the basis of F.I.R. dated 9.8.2001(Annexure No.1 to the writ petition) wherein a reference was that he fired in air from his DBBL Gun and terrorized the complainant and the public. The District Magistrate held that the conduct of the arms licence holder has also to be taken into consideration for the purpose of cancellation of the arms licence and in the present case his conduct was unbecoming and not up to the mark and he is not a law abiding citizen and that he can misuse the weapon, therefore, it was not in the interest of public to allow him to continue to retain arms licence.
Being aggrieved the petitioner filed an appeal before the Commissioner, Kanpur Region, Kanpur, which was rejected, upholding the order-dated 3.6.2002 (Annexure No.3 to the writ petition) of the District Magistrate.
It is settled law that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted to be true and correct drawing the presumption in favour of the petitioner in terms of Section 114 Illustration (g) of the Evidence Act,1872 and Order 8 Rule 5 of the Code of Civil Procedure, 1908. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be correct and true
I have looked into the record of the case and heard the learned counsel for the parties at length, and find that the respondent no. 1- District Magistrate, Kanpur Dehat and the appellate authority have passed the impugned orders dated 3.6.2002 and 18.11.2002 (Annexures No.3 & 5 to the writ petition respectively) solely on the basis of ex parte report of the police wherein no specific allegation or specific incident has been disclosed of misusing the arms by the petitioner. The appellate authority also has passed the impugned order solely on the basis of the findings given by the District Magistrate-respondent no.1 and has up-held the cancellation of gun licence of the petitioner The appellate Court has passed the impugned order without application of mind and on the basis of surmises and conjectures.
In view of the above said facts, circumstances, settled law and observations, the impugned order dated 3.6.2002 (Annexure No.3 to the writ petition, passed by respondent no.1 and the impugned order dated 18.11.2002 (Annexure No.5 to the writ petition), passed by respondent no.2 are hereby quashed. The respondents are directed to release the gun-licence in favour of the petitioner forthwith, unless and until no other criminal case or serious allegations are pending against the petitioner which could call for the cancellation of the gun-licence, and then the authorities shall proceed under the Arms Act against the petitioner in accordance with law.
With these directions, the writ petition is allowed.
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