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AJAY KUMAR GUPTA versus STATE OF U.P. THRU' SECY. HOME & OTHERS

High Court of Judicature at Allahabad

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Ajay Kumar Gupta v. State Of U.P. Thru' Secy. Home & Others - WRIT - C No. 58216 of 2005 [2005] RD-AH 2595 (9 September 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved on 05.09.2005

Delivered on 09.09.2005

Civil Misc. Writ Petition No 58216 of 2005

Ajay Kumar Gupta

Vs.

State of U.P & others

Civil Misc. Writ Petition No 58530 of 2005

Mohd. Ayyub

Vs.

State of U.P & another

Civil Misc. Writ Petition No 58166 of 2005

Gyan Swaroop Mishra

Vs.

State of U.P & others

Civil Misc. Writ Petition No 58424 2005

Kesar Ali

Vs.

State of U.P & others

Civil Misc. Writ Petition No 58 423 of 2005

Banti @ Devendra Singh Yadav

Vs.

State of U.P & others

Civil Misc. Writ Petition No 58 422 of 2005

Abdhesh Kumar

Vs.

State of U.P & others

Civil Misc. Writ Petition No 58218 of 2005

Reet Ram

Vs.

State of U.P & others

Civil Misc. Writ Petition No 59148 of 2005

Parvindra Singh

Vs.

State of U.P & others

Civil Misc. Writ Petition No 58953 of 2005

Surendra Singh

Vs.

State of U.P & others

Civil Misc. Writ Petition No 59939 of 2005

Vinod Kumar

Vs.

State of U.P & others

Civil Misc. Writ Petition No 59834 of 2005

Gajraj Singh

Vs.

State of U.P & others

Civil Misc. Writ Petition No 59803 of 2005

Ram Mohan Singh

Vs.

State of U.P & others

Hon'ble V.K. Shukla,J.

In this Bunch of writ petition, petitioners are holder of firearm licence . Licensing Authority in each one of the case has proceeded to suspend the firearm licence of the petitioner and simultaneously has issued show cause notice to the petitioners for cancellation of firearm licence. Issue has been raised on behalf petitioners that Licensing Authority has got no jurisdiction to suspend the firearm licence of petitioners pending inquiry for cancellation, as such impugned orders in question to the extent it directs order of suspension of firearm licence is liable to be quashed and struck down.

Learned Standing Counsel on the other hand contended that once satisfication has been recorded that grounds for suspending fire arms license is in existence  then under the Indian Arms Act 1959 power to suspend is there pending inquiry for cancellation and  as such no interference be made.

In order appreciate respective arguments which has been advanced, Section 17 and 18 of the Indian Arms Act 1959 are to be looked into:

Section17:- Variation, suspension and revocation of licences-(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver up the licence to it within such time as may be specified in the notice.

(2) The licensing authority may, on the application of the holder of a licence also vary the conditions of the licence except such of them as have been prescribed.

(3) The licensing authority may be order in writing suspend a licence for such period as it thinks fit or revoke a licence-

(a)If the licensing authority is satisfied that the holder of the licence is 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 is of unsound mind or is for any reason unfit for licence under this Act; or

(b)If the licensing authority deems it necessary for the security of the public peace or for public safety of suspend or revoke the licence; or

(c)If the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or

(d)If any of the conditions of the licence has been contravened; or

(e)If the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver up the licence.

(4) The licensing authority may also revoke a licence on the application of the holder thereof.

(5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing  the reasons therefore and furnish to the holder of the licence 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.

(6) The authority to whom the licence authority is subordinate may be order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may by, apply in relation to the suspension or revocation of licence by such authority.

(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke and licence:

Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.

(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate Court or by the High Court when exercising its powers of revision.

(9) the Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.

(10) On the suspension or revocation of licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation."

Section 18 :     Appeals:- (1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an other of the Licensing Authority or the authority to who the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:

Provided that no appeal shall lie against any order made by or under the direction of the Government.

(2) No appeal shall admitted if it is preferred after the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.

(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Indian Limitation Act 1908 (9 of 1908) Now see the Limitation Act 1963 (36 of 1963) with respect to the computation of periods of limitation thereunder.

(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed.

(5) In disposing of an appeal the appellate authority shall follow such procedure as may be prescribed.

Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.

(6) The order appealed against shall unless the appellate authority conditional or unconditionally directs otherwise by in force pending the disposal of the appeal against such order.

(7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.

Bare perusal of the provision quoted above would to go show that Licensing Authority under Section 17 has been vested with the authority to suspend a license for such period as it thinks fit or revoke a licence and before proceeding to take action under aforesaid section licensing authority is enjoined upon to recorded satisfaction that ground as envisaged under Clause (a) to (e) of Sub-Section 3 of Section 17 of Indian Arms Act 1959 is in existence. Sub-Section 5 of Section 17 of Indian Arms Act 1959  demands recording of reasons and supplying the aforementioned reasons to holder of licence on demand however, said demand can be refused to be filled up if it would not be in the public interest to furnish such statement. Sub-Section 10 of Section 17 of Indian Arms Act 1959 provides that on the suspension or revocation order being passed the licensee is obliged to surrender the licence. Section 18 of Indian Arms Act 1959 deals with appellate forum vested with right to pass interim order during pendency of appeal and  Appellate Authority has been vested with the power confirming/modifying or reversing the order in appeal and said order is to treated as final.

In the light of provisions quoted above in the past the question posed here has been adverted to and answered by the Full Bench of this Court in the case of Chhanga Prasad Sahu Vs. State of U.P. and other reported in 1984 AWC.J 145 after considering the provision of Section 17 and 18 of  Indian Arms Act 1959 by concluding that licensing authority has got no power of suspension of firearm licence pending inquiry. Relevant paragraph 18 to 21 of said full judgment is being quoted below:

"18. So far as the first ground mentioned above is concerned, learned counsel for the State contended that one of the main objectives sought to be achieved by revocation/suspension of any arms licence is to secure public peace and safety. In case the licensing authority is not enabled to suspend the licence during pendency of the inquiry, public peace and safety may during such enquiry, get disturbed. It would in the circumstances, be reasonable to recognize a power in the licensing authority to suspend an arms licence pending enquiry. We are unable to accept this submission. As already explained, if there already is material before the licensing authority and it becomes apparent to it that possession of arms by the licensee is going to endanger public peace and safety, it can straightway and without holding any enquiry proceed to revoke/suspend the arms licence after recording reasons therefore and if the licensee is aggrieved by such orders, he will have a right to ventilate his grievance before the appellate authority. However, if there is no such material before the licensing authority and it is not apparent to it that there is an immediate danger to public peace and safety and it , on some information being laid before it, proceeds to find out whether there is any likelihood of public peace and safety being affected at some further date, it cannot be said that there is any such urgency so as to justify the revocation/cancellation of the licence even before the licensing authority gets so satisfied. In the circumstances, considering the nature and the object of the enquiry  which a licensing authority is required to make for finding out if the facts justifying passing of an order for revocation/ suspension of licence exist, it cannot be said that non-conferment of the power to suspend an arms licence pending enquiry has the effect to defeating object for which such power has been conferred upon the licensing authority.

19. We now proceed to consider the next submission made by learned counsel for the State, namely that it should be taken that the power to suspend an arms licence pending enquiry is countenaced by the Act, inasmuch as, such a power inheres in the licensing authority and at any rate such a power is to be regarded as a power incidental to or implied in the power conferred upon the licensing authority.

20. In regard to revocation/suspension of an arms licence the power and duties of the licensing authority are regulated and are limited by the statutory provisions contained in section 17 of the Arms Act and as per following observation made by the Supreme Court in the case of Sub-Divisional Officer V.S. N. Singh AIR 1970 SC 140 it cannot be said that such a power inheres in it:-

" The Gaon Sabha is the creature of a statute. Its powers and duties as well as the powers and duties  as well as the powers and duties of it officers are all regulated by the Act Hence on question of any inherent power arises for consideration."

The other submission that such a power to suspend an arms licence pending enquiry can be justified as a power incidental to the power conferred by section 17 of the Act also does not appeal to us. In the first place the question whether in the absence of a provision like the one contained in section 19-A of the U.P. General Clause Act(which specifically provided that where a U.P. Act confers a power it will be deemed that all incidental powers for exercising that power have also been conferred) in the Central General in the statute  become debatable. However, without expressing any concluded opinion on this point, we proceed to consider  that question on the footing that where a statute confers a power it should also be taken to have conferred all other incidental power as well.  We find that the question with regard to ambit of the power that can be regarded as incidental for proper exercise of statutory powers has also been considered by the Supreme Court in the case of Sub Divisional Officer Vs. S.N. Singh AIR 1970 SC 140 wherein it has been made the following observations:-

" it is well recognized that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such act, or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the court must be satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and not merely that is convenient to have such a power. We are not satisfied that the power to place under suspension an officer is absolutely essential for the proper exercise of the power conferred u/Sec. 95 (1)(g). It cannot be said that the power to suspend pending enquiry. The mere possibility of interference with the course of enquiry or of further misuse of powers are not sufficient to enlarge the scope of a statutory power. If it is otherwise the mere power to punish an offender would have been held sufficient to arrest and detain him him pending enquiry and trial. There would have been no need to confer specific power to arrest and detain persons charged with offenses before their  conviction.  

21. It is thus, evident before a power can be implied as an incidental power the Court has to be satisfied that existence of such power is absolutely essential for the discharge of the power conferred and not merely that it is convenient for its exercise. In our opinion it can neither be said that the power to suspend an arms licence, pending an enquiry of the nature that licensing authority may      to make before ordering revocation/suspension of the arms licence is absolute      necessary nor can it be said that the power to  revoke suspend a licence in the circumstances mentioned in Sec. 17 of the Act, cannot be exercised unless a power to suspend the licence pending enquiry is also conceded to the licensing authority."

Judgment of this Full Bench of this Court has been further explained in another Full Bench (Five Judges) Kailash Nath Vs. State of U.P. reported in 1985 AWC 493 decided on 13.05.1985 by qualifying said judgment by mentioning that after taking provisional action for immediate revocation the of the licence, licensing authority  must issue notice to licence holder giving him an opportunity to file objections against the preliminary order and after hearing him proceed to pass the final order which may either affirm or revoke the provisional order. Order passed by licensing authority at the first instance is to be treated as provisional and it will attain finality only when objections are allowed. Relevant extract of paragraph 10 of the aforementioned judgment is being quoted below:

" In the instant case the gun licences of the petitioners were cancelled without any prior notice to them and in Writ Petition No. 9379 of 1984 the operation of the impugned order which directed the petitioners to surrender their guns was stayed by this court. In writ petition no. 9394 of 1984 which was directed against a similar order the sole petitioner was directed to deposit his firearm with the dealer who would keep the same in same custody during the pendency of the writ petition. The impugned order expressly recited that there was immediate apprehension of breach of peace from the petitioners if they were allowed to retain their fire arms. Hence cancellation of their fire arms  licence without any prior notice to them might be justified but the ingredients of natural justice would not be satisfied until the petitioners were subsequently afforded opportunity of hearing and making representations against the impugned order. This being the legal aspect of the case I am of the opinion that the law laid down in paragraph 16 in Chhanga Prasad Sahu's case (supra) extracted in the earlier part of this judgment must be supplemented by the further observation that after taking the provisional action of immediate revocation of the licence the licensing authority must issue notice to the licence holder giving him an opportunity to file objections against the preliminary order and after hearing him proceed to pass the final order which may either affirm or revoke the provisional order. In other words, it is incumbent upon the licensing authority petitioner has been heard by such authority and his objections have been adjudicated. The licensing authority can also for the furtherance of his immediate remedial action exercise the in dental power of directing the licence holder to surrender his licence until the objections have been decided. It follows that in the event of the objections being allowed the licence as well as the fire arm must be restored to the licence holder.

Yet another Full Bench of this Court in the case of Balaram Singh Vs. State  of U.P. and others  reported in 1988 AWC J 1481 did not approved of the proposition is laid down in C.P. Sahu's case (Supra) and held power of suspension is a necessary   concomitant of power of revocation for effective control and regulation as also for security of public peace or public safety. Relevant extract of aforementioned judgment paragraph 17 is being quoted below:

"After going through the decision mentioned above along with the relevant provisions of the Act we are of the considered view that the power of suspension is a necessary   concomitant of power of revocation for effective control and regulation as also for security of public peace or public safety."

Again Full Bench had been constituted when matter was referred in Civil Misc. Writ Petition No. 9374 of 1992 (Rama Pratap Singh and others Vs. State of U.P. and others) and therein while answering reference  it has been mentioned that proposition of law as propounded in the case Balaram Singh (supra) is not being approved and law laid down in C.P. Sahu (supra) and Kailash Nath (supra) is being approved. Relevant paragraphs 24 to 32 of aforementioned judgment is being reproduced:

" 24. Before parting with this matter, we have perforce to revert back to the judgment of the Full Bench in Balram Singh's case (supra) which finds mentioned in the judgment of Katju, J in Rana Pratap Singh's case. We are, with respect contrained to hold that the extent to which it runs counter to the decisions of the Full Bench in C.P. Sahu and Kailash Nath case, it does not lay down correct law and we consequently demolished by Kailash Nath's case.

25. Further, we also cannot but hold that the Bench fell in error in observing. "The ration in C.P. Sahu's case that there is no power to suspend pending enquiry stands completely demolished by Kailash Nath's case.

26. The issue in Balaram Singh's case concerned suspension of an arms licence on the ground that the licensee had criminal instincts and the licensee was consequently directed to show cause why his arms licence be not cancelled. After referring to the earlier Full Bench decisions in C.P. Sahu Act and Kailash Nath cases as also to the provisions of Section 17 of the Arms it was held we have not a minute hesitation in holding that the effect of a combined reading of sub-section (8) and Clause (b) thereof is that whenever a proceeding under Sub-section (8) is initiated for suspending or revoking 'a licence' and the licensing authority' deems it necessary for security of public peace or for public safety to suspend or revoke the licence the said authority can exercise of that power suspend the licence during pendency of these proceedings, without any hindrance from other Provisions in the Act.

27. A reading of the judgment in C.P. Sahu's case would however show that legal proposition as propounded there was quite different, namely, ' that having regard to the scheme and purpose of the provisions contained in Sections 17 and 18 of the Act and the nature of the enquiry that a licensing Authority is to make before directing revocation/suspension of an arms licence it has not power to suspend the arms licence pending enquiry into its cancellation/suspension." The reasoning leading to this conclusion being. The object of the enquiry that a licensing authority may while proceedings to consider the question as to whether or not an arms licence should be revoked or suspended, like to make, clearly is to enable the licensing authority to come to a conclusion as to whether or not the facts stated in clauses (a) to (c ) of Section 17 (3) exist and as already explained it is not obliged to before considering that a case for revocation/ suspension of a licence has been made out, associate the license in such enquiry. In this view of the matter it can safety be taken that where a licensing authority embarks upon such an enquiry it is till then not convinced about existence of the conditions mentioned in clauses (a) to (e) of Section 17 (3) of the Act. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the Section will be made out."

28. it is further observed that if there already is material before the licensing authority and it becomes apparent to it that possession of arms by the licensee is going to endanger public peace and safety, it can straight away and without holding any enquiry proceed to revoke/suspend the arms licence after recording reasons therefor and if the licensee is aggrieved by such others he will have a right to ventilate his grievance before the appellate authority. However, if there is no such material before the licensing authority and it is not apparent to it that there is an immediate danger to public peace and safety and it, on some information being laid before it proceeds to find out whether there is any likelihood of public peace and safety being affected at some further date, it cannot be said that there is any such urgency so to justify the revocation/cancellation of the licence even before the licensing authority gets so satisfied. In the circumstances considering the nature and the object of the enquiry which a licensing authority is required to make for finding out if the facts justifying passing of an order for revocation/suspension of licence exist it cannot be said that non-conferment of the power to suspend an arms licence pending enquiry has the effect of defeating the object for which such power has been conferred upon the licensing authority."

29. In Kailash Nath's case (supra) after going into the relevant legal aspects M.N. Shukla C.J. Speaking for the majority observed that "the law laid down in Paragraph 16 in Chhanga Prasad Sahu's case (supra) extracted in the earlier part of this judgment must be supplemented by the further observations that after taking the provisional action of immediate revocation of the licence the licensing authority must issue notice to the licence holder giving him an opportunity to file objections against the preliminary order and after hearing him proceed to pass the final order which may either affirm or revoke the provisional order. In other words it is incumbent upon the licensing authority  to refrain from attaching finality to the order of cancellation until the aggrieved petitioner has been heard by such authority can also for the furtherance of his immediate remedial action exercise the incidental power of directing the licence holder to surrender his licence until the objections have been decided.

30. In a separate judgment. H.N.Seth,J the presiding Judge in C.P. Sahu case (supra) explained that judgment by reiterating that prior hearing for suspension or revocation of an arms licence was not a legal necessity. It was further clarified that there could be post decisional hearing before the licensing authority too.

31. It will thus be seen that there was no occasion for it to be said that the ration in C.P. Sahu's case stood "demolished" by the judgment of Kaillash Nath case. As mentioned there, it was merely supplemented and that too by nothing contrary to it. We are therefor, unable to endorse or sustain the view expressed on this aspect in Balaram Singh's case (supra). In other words the law as laid down in C.P. Sahu and Kailash Nath's case still holds the field and in our opinion rightly too.

32. As regards suspension of an arms licence by the licensing authority during the enquiry this it may be clarified may be done only in the manner as explained in the judgment in C.P. Sahu's case(supra) and not without application of mind and recording of reasons by the licensing authority with such reasons and circumstances and circumstances being in consonance with the provisions of the Arms Act."            

Thus, as on date suspension of Fire Arms licence by the licensing authority during the enquiry may be done only in manner as explained in the judgment in C.P. Sahu's case (supra) and not without application of mind and recording of reasons with such reasons and circumstances being in consonance with the provisions.  The ration of all these decisions has been summed up in the case of Sadri Ram Vs. District Magistrate, Azamgarh and others reported in 1998 All C.J. 1449  as follows:

"12 The propositions that emerge from the above discussion, may be summed up as under:

(a) the licensing authority has no power to suspend the arms licence pending enquiry into its cancellation/suspension nor has it the power to suspend the licence for indefinite period.  

(b)the licensing authority has no power to suspend the arms licence has the power to suspend for specified period a fire-arm licence on being satisfied as to existence of all or any of the conditions visualized by clauses (a) to (c ) of sub-section (3) of Section 17 of the Act sans any prior opportunity of hearing being given to the licence holder but such order of suspension shall not attain finality until the aggrieved   party has been heard and his objection any, adjudicated. In other words suspension of arms licence for specified period or its revocation under Section 17(3) of the Act, if ordered without affording opportunity of hearing would endure in suspended animation until the aggrieved party has been heard by the licensing authority and his objections  if any are adjudicated.

(c) the licensing authority can also for the furtherance of the immediate remedial actions, exercise in facts and circumstances of a given case, an incidental power to directing the licence holder to surrender his licence until objections have been decided and

(d) suspension under Section 173(3) of the Act must be for definite period to be specified in the order by the licensing authority."

Conclusions summed up still holds the field and on the touch stone of the aforementioned proposition which has emerged it is apparent the licensing authority has no power to suspend licence pending inquiry in its cancellation/ suspension.

Here in the present case in each and every case order of suspension has been passed while simultaneously notice has been issued to show cause as to why firearm licence be not revoked. This said part of the order is in teeth of the Full Bench Judgment of this Court.

Consequently in view of this position order of suspension of firearms licence  pending inquiry, are hereby quashed  in each one of the writ petitions. However passing of the order will not prevent the Licensing Authority to conclude the final proceeding of cancellation pursuant to the notice which has been issued as per the provisions as contained under Section 17 of the Indian Arms Act   1959. In the petitioners have not submitted their reply to the cancellation notice then in that event each one of the petitioners, shall submit their reply within period of three weeks from the date of delivery of judgment and thereafter Licensing Authority shall take final decision qua cancellation proceeding within next six weeks thereafter.

subject to observations made above all these writ petitions are partly allowed.

No orders as to cost.

9th September 2005

Dhruv

   


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