@ HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(C) NO. 3663 OF 2007 Writ pe'l'i1‘ion under ArTicIe 226/227 of The Consfitufion of India Kalyan Singh, aged abouf 39 year‘s, S/o laTe Diwan Dashr‘a‘rh Singh, Kanwar‘, cul‘riva‘ror‘, R/o Salka Nawagaon, PS Kofa, Tahsil Kom, Distric’r Bilaspur (CG) VER$U5 RESPONDENTS 1. PETITIONER STaTe of Chha‘r’risgar‘h, Through Dis‘rr‘icf Magis‘rm‘re, Bilaspur' (CG) 2. Secrefar‘y, Home Deparfmenf, 5mm of Chha‘r’risgarh, Raipur. Presen? : Mr‘. Saifu’ddin Rajas, AdvocaTe for The petitioner. Mr. Shashank Thakur, Panel Lawyer for ‘rhe S’ra’re. O R D ER (Passed on Hi august, 2008) Dhirendra Mishra, J Heard on admission. The pe‘rifion is admi‘r‘red for hearing. Also heard on IA No. 1, application for taking additional documents on record. The application is allowed. Documents are taken on record. Case of the petitioner, in brief, is that grand—father of the petitioner was granted licence for two guns, one 12 bore and another 22 bore, for protection of crops as well as self-defence. After his death, father of the petitioner was granted licence for 2 @ these guns. Affer‘ deafh of his fa‘rher', the peti’rioner came info possession of bo‘rh ’rhe guns. The pe‘ri‘rioner' applied for gun licence before ‘rhe Disfr‘ic’r Magis’rrafe, Bilaspur on 15* March, 1999. However, his applica’rion was misplaced. Subsequently, ‘lhe pe’rifioner submi’r’red another applicaTion on 9*“ July, 2003 for issuance of gun licence, however, no order was passed by The Dis’rric’r Magis‘rrafe on Thai application. Therefore, The peli’rioner preferred appeal before The respondenT No.2, which was allowed vide Annexure P/Z and The DisTricT MagisTraTe was direcTed To obTain reporT from The SuperinTendenT of Police forThwiTh and decide The applicaTion of The peTiTioner expedifiously in accordance wiTh The rules. ThereafTer, The DisTricT MagisTraTe called for reporT regarding The peTiTioner's conducT, characTer and anTecedenTs from The Sub Divisional MagisTraTe, KoTa, ExecuTive MagisTraTe, Kofa as also from The Sr. SuperinTendenT of Police, Bilaspur. The SDM, KoTa and The ExecuTive MagisTraTe, KoTa vide Their reporTs of Annexure P/3 & P/4 recommended for granTing licence To The peTiTioner. However, The DisTricT MagisTraTe vide Memo daTed 7.9.2006 informed The peTiTioner ThaT as per reporT daTed 29.7.2006 of The Sr. 'SuperinTendenT of Police, Bilaspur, prohibiTory proceedings were drawn againsT him on Two occasions and iT has also been reporTed Therein ThaT in absence of any cogenT reason, no recommendaTion is made and Therefore, afTer due consideraTion of The reporT of Sr. SuperinTendenT of Police, his applicaTion for gun licence is rejecTed. The peTiTioner preferred appeal under SecTion 18 of The Arms AcT, 1959 (for breviTy 'The AcT') againsT The order of The DisTricT MagisTraTe before The respondenT No.2, who vide noTice of AnnexureP/o daTed 4m May 2007, communicaTed The peTiTioner @ ’fhaf hearing of The appeal shall Take place on 9m May, 2007. However, fhe said notice was delivered To The pe’rh‘ioner‘ only on 12m May, 2007, which is evident from fhe sfamp over the envelope of Annexure P/7. The appellafe aufhori‘ry vide order da‘red 9m May, 2007 dismissed 1‘he appeal l'r'eafing ‘l‘he pelilioner/appellanf ex~ parTe wilh a finding Thal‘ he did no’r deposit the guns in Police Station—Kota for a period of 4 and % years after 24m January, 1999 when his father died and deposited the same only on 30m June, 2003 and the order passed by the District Magistrate rejecting i" the application for gun licence, is proper. 37 , Learned counsel for the petitioner submits that family of the petitioner possessed two guns since the lifetime of his ancestors. Licence was renewed firstly in the name of his grand-father and thereafter, in the name of his father. Prohibitory proceedings under Section 107 of Cr.P.C. cannot be ground for refusing licence. In any case, report of the Sr. Superintendent of Police was never supplied to the petitioner by the District Magistrate and the petitioner was not afforded an opportunity of hearing before refusing grant of licence, either by the District Magistrate or by the appellate authority. Reliance is placed on the orders passed in the matter of Dharamga/ Ramnarazan Agrawa/ Vs. 5fafe of MP and anarher reported in 1998(11 MPLJ' 537 and Bansi/a/ Nanda l/s State of MP and ofhers, reported in 1998(12 MPLJ' 365. On the other hand, Shri Shashank Thakur, learned counsel appearing for the State contended that the Sr. Superintendent of Police vide his report dated 29.7.2006 submitted that two caSes of prohibitory orders under the Code of Criminal Procedure have been registered againsf the pe’ri’rioner and fhe petitioner has not shown any plausible reason for grant of arm licence. The District Magistrate, on the basis of report of the Sr. Superintendent of Police, rejected his application. The appeal of the petitioner against the order of the District Magistrate was also dismissed by the appellate authority on the ground, apart from the grounds mentioned by the District Magistrate, that the petitioner did not deposit the arms with the District Magistrate after it came into his possession since the death of his father and kept it unlawfully for a period of 4 and % years. I have heard learned counsel for the parties and gone through the material available on record including the orders passed by both the Courts below. Cf ‘ Chapter—II of the Act deals with acquisition, possession, manufacture, sale, import, export and transport of arms and ammunition. Sub-section (1) of Section 3 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 this Act". Chapter—III deals with the provisions relating to licenses. Section 13 prescribes the procedure for grant of licence, which is reproduced as under: "13. 6mm of /icences.—(J) An app/icaffan for the granf of a //ce/1ce under Chapter II sha// be made 7‘0 the //'cehs‘ihg authority and sha// be in such form, contain such part/cu/ars and be accompanied by such fee, if any, as may be prescribed. [(2) 0n receipt of a'n app/ication, the '//'cens'in_q authority sha/i ca/i for the report of the officer in charge of the nearest po/ice station on that app/ication, and such officer sha/i send his report within the prescribed time. @ (Z-A) The /fcen5/ng auf/vorify, affer such inquiry, if any, a5 if may cons/Her necessary and affer cons/Her/hg fhe reporf received under sub—secfion (2), sha//, subjecf fa fhe off/er prows/ons of fnls Chapfer, by arc/er in wr/fing el'fner gram‘ fne //'cence or refuse 7‘0 gram‘ fne same: Provided fnaf where fhe off/’cer I'n charge of fhe nearesf po/ice sfaf/‘oh a’oes nof send his reporf on fhe app/icafioh wifhin fhe prescribed fime, fhe htens/hg aufhorify may, if if deems fif, make such order, offer fhe expiry of fhe prescribed fime, wifhouf furfher waifing for fhaf report] (3) The /icensing aufhorify sha//granf- (a) a /icehce under Secfion 3 where fhe /icence is required— (i) by a cifizen of India in respecf of a smoo 7‘h bore gun having a barre/ of hof /ess fhan fwen fy inches in /engfh 7‘0 be used for pro fecfion or sporf or in respecf of a muzz/e /oading gun fo be used for bona fide crop pro fecfion : Provided fhof where having regard 7‘0 fhe circumstances of any case, fhe //'censing auihorify is safisfied fhaf a muzz/e /oading gun wi// nof be sufficienf for crop pro fecfion, fhe licensing aufhorify may grani' a /icence in respecf of any ofher smoofh bore gun as aforesaid for such pro fecfion, or (ii) in respecf of a poinf 22 bore rif/e or an air rif/e fo be used for fargef pracfice by a member of a rif/e c/ub or rif/e ossociafion /icensed or recognised by fhe Cen fra/ 60 vernmenf,’ (b) a //'cence under 5ecfion 3 in any ofher case or a /icence under Secfion 4, 5ec7‘ion 5, 5ecfion 6, Secfion 10 or Secfi'oh 12, if fhe /icensing aufhorify is saf/ls‘fied fhaf fhe person by whom fhe /icehce is required has a good reason for ob fai'ning fr/iegmejL/ / / ¢§S Sec‘Hon' 14 deals wifh ’rhe circumsmnces under which the licence may be refUSed. Sec‘rion 14 reads as under: "J4. Refusal of licences. ~(1) No fw/fhsfana’mg anyfh/hg in Seem/1 J3, fhe //cen5/'/1g auf/vor/fy 5ha// refuse 7‘0 gram— (a) a //‘ce/1ce under Seer/bn 3, Secfion 4 or Secfion 5 where such //'cence i5 required in respecf of any pron/bifed arms or prohib/fea’ ammunif/bn ,' (b) a //'cence in any ofner case under Chapfer II— (0 where sue/7 //'cence is required by a person whom fhe /icensing aufhorify has reason fa be/ie ve~— I (1) f0 be prohibifed by fh/‘s Acf or by any ofher /aw for fhe fime being in force from acquiring, having in his possession or carrying any arms or ammun/fian, or (2) 7‘0 be of unsound mind, or (3) fo be for ony reason unfif for a /icence under fh/Zs Acf; or (ii) where fhe /icensing oufhorify deems if necessary for fhe securify of.7‘he pub/ic peace or for pub/ic safefy fo refuse 7‘o granf such /icence. (2) The /icensing aufhorify sha// hof refuse 7‘0 granf any /icence fo any person mere/y on fhe ground fhaf such person does nor own or possess suff/c/‘enf properfy. (3) Where fhe /icensing aufhorify refuses 7‘0 gram‘ a /icence fo any person if sha/i record in wrh‘ing fhe reasons for such refusa/ and furnish fo fhaf person on demand a brief sfafemem‘ of fhe same un/ess in any case fhe //'censing aufhoriry is of fhe opinion fhaf if wi/i nof be in fhe pub/ic in feresf fo furnish such sfafemenf. " In fhe ins’ran’r case, if is not in dispufe Thai ‘rhe grand-fa’rher of The pefi‘rioner' was holder of fhe gun licence for Two firearms. His Iicence was renewed from fime To Time Tili his deaTh. AfTer fhe deafh of his grand-fa‘rher‘, gun licence was issued ‘ro ’rhe father of The peti‘rioner‘ and if was also renewed from fime ’ro Time ’rill his death. Affer' fhe dea’rh of his father, The pe‘ri’rioner applied for issuance of gun licence in The year' 1999 before ‘rhe licensin9 auThoriTy as he came info possession of These Two guns of his father affer‘ his death. However, his application was misplaced and his queries about the outcome of his application for grant of licence were not replied to and he was orally informed that his application has been rejected. Thereafter, the petitioner again applied for grant of licence on 9.7.2003; However, the District Magistrate did not pass any order on the second application also, whereupon the petitioner preferred appeal before the State Government—appellate authority. The appellate authority vide order dated 26.5.2006 directed the District Magistrate to immediately call report from the Superintendent of Police and thereafter, pass orders in accordance with the Act and also directed the Superintendent of Police to submit his enquiry report within a period of 15 days to the District Magistrate. Thereafter, the District Magistrate, after obtaining report from the Sr._$uperintendent of Police, rejected the application of the petitioner on the ground that the Sr. Superintendent of Police has not recommended his case for issuance of gun licence as prohibitory‘ proceedings were drawn against. the petitioner on two occasions and there is no cogent reason for grant of licence. Ac k The appeal of the petitioner was also dismissed vide order dated 9.5.2007 after proceeding ex—party against him on the above ground as well as on the ground that the petitioner did not deposit the guns for more than 4 and % years after he came into possession of the same. @ The petifioner‘ has sfafed on oa’rh fhaf The notice was issued To him by fhe appellafe au‘rhor‘ify on 4*“ May, 2007 for hearing of The appeal on 9m May, 2007, however, The said no‘l‘icz was received by him only on 12m May, 2007 vide envelope of Annexure P/7. Therefore, he could no‘r appear af the Time of final hearing of his appeal and if was dismissed wifhouf affording him an opporfuni’ry of hearing. From The documenfs filed by fhe pefi‘rioner, if is also eviden‘r fhaf on his application, fhe licensing au‘rhorify called repor’r from fhe Sub Divisional Magis’rrafe and fhe Execufive Magis’rrafe and bofh of them had recommended for issuance of licence fo fhe ‘L pefi’rioner. From perusal of fhe order of The DisTricT MagisTraTe iT is evidenT ThaT The applicaTion for licence of The peTiTioner was rejecTed only on The basis of reporT of The Sr. SuperinTendenT of Police. However, The grounds menTioned, eiTher in The reporT of The Sr. SuperinTendenT of Police or in The order daTed 7.9.2006 passed by The DisTricT MagisTraTe, for rejecTing The applicaTion of The peTiTioner for gun licence are noT The grounds for refusing granT of licence under SecTion 14 of The ACT. In The maTTers of Dharampa/ (supra) learned Single Judge of The MP High CourT held ThaT since The applicaTion for renewal of The licence was rejecTed wiThouT hearing and recording reasons, The maTerial used as basis for rejecTion was also noT supplied To The applicanT; sTaTuTory provisions and principles of naTural jusTice were noT observed, The order of refusal To renew licence is illegal. In BanS/Va/ Nana'a (supra), The applicaTion for granT of revolver licence was rejecTed by The licensing auThoriTy, despiTe recommendaTions by The auThoriTies, solely on The ground ThaT in The concerned Township sufficienT arms were available and The area @ was no’r infested by dacoi’rs and ’rhere was no in‘rimida’rion by dacoi’rs. The order was se‘r aside wi’rh an observa’rion ‘rhaf ‘rhe aforesaid grounds were no’r sufficient for rejecfing The appiica‘rion as fhey ar'e nof The grounds prescribed under. Secfion 14 of The Acf. In fhe insfanf case also, The applicafion has been rejected by the District Magistrate solely onthe ground that prohibitory proceedings were drawn against the petitioner on two occasions and there is no cogent reason for grant of licence. The aforesaid grounds are not the grounds mentioned in Section 14 of the Act. Secondly, copy of report of the 5r. Superintendent of Police was never made available to the petitioner and no opportunity of hearing was given by the District Magistrate before refusing to grant licence and thus, there is violation of principles of natural justice. The appellate authority has also rejected the appeal of the petitioner without affording him an opportunity of hearing after proceeding ex—parte against him, though the notice for hearing of the appeal was served upon the petitioner after passing of the impugned order on 12m May, 2007. The appellate authority has also rejected the application for grant of gun licence on the ground that the petitioner failed to deposit his licensee guns after the death of his father for a period of 4 and % years. From perusal of the order of District Magistrate it is evident that the aforesaid was not the reason for rejecting the petitioner’s application. Therefore, in the considered opinion of this Court, the appellate authority was not justified in assigning a new reason while rejecting the application of the petitioner for gun licence, that too, in an ex- party proceeding without hearing the submission of the petitioner/appellant on the additional ground..‘ @ For the aforesaid reasons, fhe petition is allowed. The or'der' da’red 7.9.2006 (Annexure P/5) passed by The Disfr'ic’r Magisfmfe, Bilaspur‘ and The order dafed 9.5.2007 passed by the appellate authority, which was communicated to the petitioner vide Annexure P/1 dated 17”“ May, 2007, are set aside. The matter is remanded back to the licensing authority/District Magistrate to decide the application of the petitioner for grant of gun licence afresh within three months from the date of receipt/production of copy of this order, keeping in view the observations made by this Court in this order. There shall be no order as to costs. Dhirendra Mishrai Judge Sd/-