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Shafat Khan v. State Of U.P. & Others - WRIT - C No. 34348 of 2003  RD-AH 6750 (1 December 2005)
Civil Misc. Writ Petition No. 34348 of 2003
State of U.P. and others
Hon. Dr. B.S. Chauhan, J.
Hon. Dilip Gupta, J.
(By the Court)
The learned Single Judge has made this reference doubting the correctness of the judgment of learned Single Judge in Satish Chandra Vs. State of U.P. & Anr., 2003 (1) JIC 33 (Alld.), wherein it had been held that while passing the order of suspension of the licence of arms under the Arms Act, 1959, hereinafter called the ''Act', the authority cannot direct the licence holder to deposit the arm with the police station or arms dealer.
This petition has been filed for quashing the show cause notice dated 23rd April, 2003 issued under Section 17 (3) of The Act, by which while suspending the firearms licence with immediate effect, as it was necessary for the security of public peace and public safety, the petitioner was called upon to show cause within 15 days why the firearms licence may not be cancelled and a further direction was issued to the petitioner to deposit the firearm in the Police Station.
At the time when this petition was being heard learned counsel for the petitioner contended that such a direction could not be issued in view of the decision of this Court in the case of Satish Chandra (supra), in which it was observed :-
"............This proposition of law is undisputed that the District Magistrate has no authority to get the firearms deposited unless the licence has been cancelled. The licence cannot be suspended unless a reasonable opportunity has been given to the petitioner licenceholder to show-cause. The petitioner has been served with this notice with a direction to file his objection but before the objection was filed, the District Magistrate passed the order for deposit of arms alongwith notice itself. Since the licence was not cancelled the arm cannot be or dered to be deposited at the police station."
The learned Judge was prima facie of the opinion that the aforesaid proposition of law was not correct and, therefore, referred the following question of law for consideration by a larger Bench:
"Whether the firearm is not required to be deposited upon mere suspension of the licence, unless, the licence is finally cancelled? If not, what would be the exact effect of suspension of firearm licence in respect of the right of the licence holder to possess the firearm?"
In order to appreciate the controversy, we consider it proper to refer to the relevant provisions of the Act. Section 3(1) of the Act provides that 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 the Act and the Rules made thereunder. Section 13 of the Act deals with the grant of the licences while Section 17 deals with variation, suspension and revocation of licence. Sub-sections 3 and 10 of Section 17 and Section 21 (1) which are relevant for the purposes of the controversy involved in this petition are quoted below:-
"17. Variation, suspension and revocation of licences. -
(3) The licensing authority may by 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 unsound mind, or is for any reason unfit for a licence under this Act; or
(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to 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.
(10) On the suspension or revocation of a 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.
21. Deposit of arms, etc., on possession ceasing to be lawful. - (1) Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer in charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury."
The question that has been referred for consideration to this Bench is in two parts. The first part is whether the direction to deposit the firearm can be given only when the licence has been finally cancelled or it can be issued upon mere suspension of the licence while the second part is what would be the effect of suspension of firearms licence in respect of the right of the licence holder to possess the firearm. It will not be necessary for us to answer the second part if we hold that the direction to deposit the firearm can be given in a case where the licence is suspended.
A Full Bench of this Court consisting of five Hon'ble Judges in the case of Kailash Nath & Ors., Vs. State of U.P. & Ors., 1985 (11) ALR 451 had the occasion to examine the orders by which the firearms licence was cancelled and a direction had been given to deposit the firearm forthwith. These orders were sought to be challenged on the ground that they were passed without any notice to the petitioners or opportunity of hearing having been given to them prior to the cancellation of the licence. The Full Bench while observing that the licence for acquisition and possession of firearms is merely a personal privilege and the grant of privilege does not involve the adjudication of the rights of an individual and nor does it entail civil consequences, held that the Act or the Rules made thereunder do not contemplate a notice being given to the licence holder before cancelling or varying or suspending the licence but nevertheless, the act of cancelling or refusing to renew the licence leads to grave consequences. In this context it observed:-
"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 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 safe 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 firearms. Hence, cancellation of their firearms licences 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 an 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 observations that after making 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 and his objections adjudicated. The licensing 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. It follows that in the event of the objections being allowed the licence as well as the firearm must be restored to the licence holder." (emphasis supplied)
It would, therefore, be seen that the cancellation of the firearms licences without any prior notice was held to be valid but in order to ensure that the ingredients of natural justice were satisfied, the petitioners were afforded subsequent opportunity of hearing and making representations against the impugned orders. The Court was of the opinion that the law laid down by the earlier Full Bench of three Hon'ble Judges in the case of C.P. Sahu Vs. State of U.P. & Ors. 1984 AWC 145 must be supplemented by the further observations that after making provisional action of immediate revocation of the licence, the licensing authority must issue notice to the licence holder giving him 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. However, the licensing authority could also, for furtherance of the immediate remedial action exercise the incidental power of directing the licence holder to surrender his licence until the objections were decided.
In the case of C.P. Sahu (supra) the question that had been referred to Full Bench was whether there was power to suspend a firearm licence pending enquiry into its cancellation or suspension and in this context it was observed :-
".........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 straightaway 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 future 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 of defeating the object for which such a power has been conferred upon the licensing authority."
In the case of Balram Singh Vs. State of U.P. & Ors., 1998 AWC 1481 a Full Bench of this Court consisting of three Hon'ble Judges was called upon to examine the validity of the order whereby the firearm licence had been suspended pending proceedings for revocation and a further direction had been issued to the Station Officer to ensure the deposit of the firearms at the police station. The two questions formulated by the Full Bench were :-
(1) The power to suspend an arms licence is not included in the power to cancel the licence.
(2) The power to suspend an arms licence cannot be exercised during the proceedings for its cancellation.
The Full Bench after considering the various provisions of Section 17(3) of the Act observed as follows:-
"............Therefore, we have not a minute's hesitation in holding that the effect of a combined reading of sub-section (3) and Clause (b) thereof is that whenever a proceeding under sub-section (3) 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 in exercise of that power suspend the licence during pendency of these proceedings, without any hindrance from other provisions in the Act........."
It was also observed :-
"This takes us to the practical effect of Kailash Nath's case. Let us suppose that an order of revoking the licence is passed by the licensing authority because he feels that security of public peace or public safety is at stake. The consequences of this order are to be found in sub section (10) which says that on the suspension or revocation of a licence the holder of the licence shall immediately surrender the licence to the authority by whom it has been suspended or revoked. A similar provision exists in section 21 which notices some other contingencies also. It follows that the order revoking the licence necessarily divests the licence holder of his right to possess the fire-arm. It has been held in Kailash Nath's case that after having revoked the licence, a post decisional hearing may be afforded to the licence-holder which again follows that if his objections are accepted, the licensing authority may withdraw his order and if rejects it, the revocation order becomes absolute. From a practical point of view finality to the revocation order can be attached only after the said objection has been decided. During this interim period, the licence remains inoperative and the arm remains deposited with the authority or with the officer as directed by the authority. From any point of view, this is nothing but suspending the licence during pendency of the revocation proceedings. Moreover in Kailash Nath's case, the legal position is accepted that an order of suspending/revoking the arms licence without notice to the persons aggrieved, can be assailed in an appeal and further that proceedings for cancellation of the licence should be proceeded by notice to the licence holder. Thus, if and when an order revoking/suspending the licence is made separately from an order directing the licence holder to show cause why his licence be not revoked, both the orders will be valid orders. We do not find any reason to take the view that the orders would become invalid just because they have been combined into one or that one composite order has been passed.
In view of the discussions aforesaid, it has to be held that the licensing authority is vested with the powers to suspend the licence during proceedings for its suspension or revocation under section 17 of the Act." (emphasis supplied)
The matter was again considered by a Full Bench of this Court consisting of five Hon'ble Judges in the case of Rana Pratap Singh Vs. State of U.P. & Ors., 1995 JIC 1062. The Full Bench observed as follows:-
"......... We are, with respect, constrained to hold that the extent to which it runs counter to the decisions of the Full Bench in C.P. Sahu and Kailash Nath's case, it does not lay down correct law and we consequently overrule it.
Further, we also cannot but hold that the Bench fell in error in observing ''The radio in C.P. Sahu's case that there is no power to suspend pending enquiry stands completely demolished by Kailash Nath's case.'
............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 being in consonance with the provisions of the Arms Act." (emphasis supplied)
Thus, the Full Bench in Rana Pratap Singh (supra) clearly indicated that arms licence could be suspended during the enquiry but only in the manner explained in the judgment in C.P. Sahu's case (supra).
The question, however, that we are called upon to answer is whether the firearm is not required to be deposited upon mere suspension of the firearms licence.
As seen above, the Full Bench in the case of Kailash Nath (supra) clearly held that cancellation of the firearms licence without any prior notice was justified but in such a case an opportunity of hearing and making a representation must be subsequently afforded. In other words, after taking the provisional action, the licensing authority must issue notice to the licence holder giving him an opportunity to file objections and after hearing him proceed to pass final order. In such circumstances the licensing authority can also, in furtherance of the immediate remedial action, exercise incidental power by directing the licence holder to surrender his licence until the objections have been decided. It is true that these observations were made while deciding the petition in which the firearms licence had been cancelled, but in our opinion these observations would equally apply in a case where the firearms licence has been suspended and notice has been given to the licence holder to show cause why the licence should not be cancelled as even in cases of suspension, the licensing authority has to be convinced that it is necessary to pass such an order for the security of public peace or for public safety.
In this context we may also usefully refer to the provisions of Section 17(10) of the Act which provides that on the suspension or revocation of a licence under this Section, the holder thereof shall without delay surrender the licence to the authority by whom it was suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation. Thus, when the licence is suspended under Section 17 (3) of the Act, the licence holder has to, without delay, surrender the licence to the authority. Under Section 3 of the Act no person can acquire or have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence and indeed Section 21 of the Act provides that any person having in his possession any arms or ammunition the possession whereof has, in consequences of the suspension or revocation of licence, ceased to be lawful shall without any unnecessary delay deposit the same with the Officer In-charge of the nearest police station. A conjoint reading of all the provisions of the Act makes it clear that upon suspension of the licence, it is incumbent upon the licence holder to not only surrender the licence to the authority by whom it has been suspended but also to deposit the firearm in the nearest police station.
Even otherwise, suspension means the act of debarring from a function or privilege for the time being. The effect of the suspension is that it interrupts the enjoyment of privilege and puts it aside temporarily. It is a legal fiction and the person having a right or privilege shall be deemed not to have it for the period of suspension. Thus, if the firearms licence has been suspended, the holder cannot continue to enjoy the privilege and he must surrender the licence with the licensing authority and the firearms with the concerned police station as directed by the licensing authority.
We are, therefore, of the considered opinion that the law laid down in the case of Satish Chandra (supra) that the licensing authority cannot issue direction for deposit of firearms if the licence has been merely suspended is not correct and we hold that even on mere suspension of the firearms licence, the licensing authority can direct licence holder to deposit the firearm with the police station.
The reference is answered accordingly.
Before parting with the case, we are compelled to mention herein that inspite of the reference by the learned Single Judge for considering an issue of general public importance and requiring authoritative interpretation of the statutory provisions of the Act, no Counsel appeared before us. Assistance rendered by the so-called Standing Counsel was nugatory. It is unfortunate that the learned counsel engaged in this case to perform their pious duty to render assistance did not even consider it appropriate to appear in the matter.
In T.C. Mathai and another Vs. District & Sessions Judge, Thiruvanannthapuram, Kerala, (1999) 3 SCC 614, Hon'ble Supreme Court observed:
"The work in a court of law is a serious and responsible function. The primary duty of a------- court is to administer ------justice. Any lax or wayward approach, if adopted; towards the issues involved in the case, can cause serious consequences for the parties concerned. ------ In the adversary system which is now being followed in India, both in civil and criminal litigation, it is very necessary that the court gets proper assistance from both sides."
The Rajasthan High Court in Bhola Singh Vs. State of Rajasthan, AIR 1999 Raj. 242 held as under:-
"-------the quality of the judgment depends upon the assistance rendered at the Bar. The Judge can not take the entire responsibility of laying down a correct law unilaterally without any assistance of the learned members of the Bar. The Judge cannot afford to retire from chamber and sit in the library and find out the case law on the issues involved in every case and what is the occasion to do anything in a case where the pleadings are so vague as the petition itself cannot be entertained."
In D.P. Chadha Vs. Triyugi Narain Mishra & ors (2001) 2 SCC 221 the Hon'ble Apex Court has observed as under:-
"--------------- Mutual confidence in the discharge of duties and cordial relations between Bench and Bar smoothen the movement of the chariot. As responsible officers of the court, as they are called __ and rightly, the counsel have an overall obligation of assisting the courts in a just and proper manner in the just and proper administration of justice.----------------- A lawyer must not hesitate in telling the court the correct position of law when it is undisputed and admits of no exception.--------------------- This obligation of a counsel flows from the confidence reposed by the court in the counsel appearing for any of the two sides. A counsel, being an officer of court, shall apprise the Judge with the correct position of law whether for or against either party."
Had it been an adversary litigation, we could have dismissed the petition in default but being a reference, we had taken pains upon ourselves to find out the law and answer the reference.
Let the papers be now placed before the learned Judge for deciding the petition.
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