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CHANDRA BHAL & OTHERS versus COMMISSIONER & OTHERS

High Court of Judicature at Allahabad

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Chandra Bhal & Others v. Commissioner & Others - WRIT - C No. 16640 of 1986 [2004] RD-AH 632 (25 August 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.51

Civil Misc. Writ Petition No.16640 of 1986

Chandra Bhal Vs. Commissioner, Bareilly and another

***

Hon'ble V.C. Misra, J.

Heard Sri Ramendra Asthana learned counsel for the petitioner and Sri R.K. Awasthi learned standing counsel. No counter affidavit has been filed on behalf of the respondents though 18 years have lapsed.  

1. The facts of the case in brief, are that the petitioner has been granted firearm licence no.3362 under Section 13 of the Arms Act and on the basis of the licence, the petitioner held a 12 bore single barrel gun. On 4.1.1972, 2 murders were committed, who were uncles of the petitioner. In the murder case, the petitioner was complainant and at his instance the accused persons were prosecuted and stood trial. During the pendency of the murder case, the police submitted an ex part report to the superintendent of police informing that the petitioner was involved in 3 criminal cases and recommended that the firearm licence held by the petitioner should be cancelled.

2. The District Magistrate vide order dated 31.8.1982 suspended the arms licence of the petitioner pending enquiry without any notice to the petitioner calling upon him to show cause as to why the licence be not suspended. A reply to the same was submitted by the petitioner on 16.9.1982. On 3.9.1985, the respondent no.2-Additional District Magistrate, Shahjahanpur confirmed the suspension order and also passed the order for cancellation of gun licence on the basis of the police report. Against the aforesaid order, the petitioner filed an appeal under Section 18 of the Arms Act before the respondent no.1, which was dismissed vide its Judgment and Order dated 25.6.1986 mainly on the ground that though in the murder case, the petitioner charged under Section 307 I.P.C. had been acquitted giving benefit of doubt and also in another case in which he got clear acquittal, under Section 324 I.P.C., an offence, was not serious in nature, but since the petitioner had himself admitted that they were two parties in the village and he belonged to one of the said parties and, therefore, it cannot be accepted that the petitioner has not used his firearms effectively during the scuffle between the parties. It was also held that cancellation of the arm licence of the petitioner was in public interest, peace and public security, which fact was borne out from the operative portion of the order of the Additional District Magistrate dated 3.9.1985 and, therefore, under the said circumstances, there being no valid ground appeal was rejected upholding the order dated 3.9.1985 passed by the Additional District Magistrate, Shahjahanpur. The cancellation of gun licence of the petitioner has been passed on mere police suspicion about misusing the arms by the petitioner.

3. 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 as true and correct and the presumption is in favour of the petitioner in terms of Section 114 Illustration (G) of the Evidence Act, as laid down in catena of decisions including A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. page 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709.   In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be true and correct.

4. Learned counsel for the petitioner has relied upon the decision in the case of Ram Bodh Singh Vs. State of U.P. and others reported in Allahabad Law Journal page 530, in which case an order of cancellation of gun licence was passed on the similar grounds to the present case that the licensee was accused in criminal cases, including a case of murder of a person in which he had dire enmity, and was acquitted only on benefit of doubt. Their Lordship held that such cancellation of the order was unjustifiable as the fact remained that licensee had been ultimately acquitted.

5. 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.2-Additional District Magistrate and the appellate authority have passed the impugned order dated 3.9.1985 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 Additional District Magistrate-respondent no.2 and has up-held the cancellation of gun licence only because the petitioner had been found belonging to one of the parties having enmity with each other. The appellate Court has passed the impugned order without application of mind and on the basis of surmises and conjectures. The Judgment of the said case cited above squarely covers the case of the petitioner.

6. In view of the above said facts, circumstances, settled law and observations, the order dated 25.6.1986 annexure-5 to the writ petition, passed by respondent no.1 and the order dated 3.9.1985 annexure-4 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.

Writ petition is allowed. No order as to costs.

August 25, 2004

Hasnain


Copyright

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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