1 cr-wp-1859-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.W.P. NO. 1859 OF 2010 Atul R.Gaikwad ..Petitioner Vs. The State of Maharashtra ..Respondent .... Mr. Sagar G.Talekar Adv. for petitioner Smt.M.M.Deshmukh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : SEPTEMBER 2, 2010 P.C.: 1 Heard the learned advocate for the petitioner and the learned APP for the State. 2 The petitioner has challenged the order dated 14.1.2008 whereby his firearm licence came to be canceled under Section 17 of the Arms Act. 2 cr-wp-1859-10 3 Before the impugned order was passed, a show cause notice came to be issued to the petitioner as to why his licence should not be canceled. The ground stated in the show cause notice is that the petitioner is involved in an offence which is registered as CR No.130 of 2007 at Kolsewadi Police Station, Kalyan. The said CR is under Sections 307, 147, 148, 323, 504, 506 of IPC read with Sections 25(2) (c), 37(1) and 135 of the Bombay Police Act. In the said show cause notice, it is clearly stated that on account of this offence there is apprehension that the weapon may be misused in future due to which public peace and public safety may be breached, hence, it is proposed to cancel the licence. The petitioner has admittedly replied to the said show cause notice. Thereafter by order dated 14.1.2008 the said licence came to be canceled. Being aggrieved thereby, he preferred appeal before the Home Department. By order dated 30.3.2010, the order dated 14.10.2008 came to be confirmed. Being aggrieved by both these orders the petitioner has approached this Court. 4 The learned advocate for the petitioner has placed reliance on a decision of the Punjab and Haryana High Court in Labh Singh Chattar Singh Vs. The Divisional Commissioner Ambala Division, Ambala and others reported in AIR 1972 Punjab and Haryana 3 cr-wp-1859-10 122. In the said case, the order canceling the gun licence of the petitioner therein under Section 17 of the Arms Act, 1959 came to be set aside. I have carefully perused the said decision. On perusal of the said decision, it is noticed that in the said case, the petitioner had not been heard. The Court observed that the order is based mainly on the exparte report of the Superintendent of Police, no opportunity was granted to the petitioner to show cause as to why his licence should not be canceled, and it was incumbent on the part of the authority passing order of cancellation to follow the principles of natural justice, as it had not been done the order came to be quashed. However, in the present case, admittedly, the petitioner was issued a show cause notice to which he has filed his reply. The said reply has been considered which is apparent on the reading of the order dated 14.1.2008. As far the appellate authority is concerned, the petitioner was present at the time of hearing. There also he was granted an opportunity of hearing. Hence, this decision cannot apply to the facts of the present case. 5 Thereafter, the learned advocate for the petitioner stated that it is incumbent that the order revoking the licence must show at least, prima facie how the possession of gun by licensee would endanger the public peace and public safety. In the present case, it is specifically 4 cr-wp-1859-10 stated in the show cause notice that as the petitioner is involved in an offence under Section 307 of IPC in which he had used the firearm in question, hence, it is apprehended that in future the weapon may be misused, leading to breach of public peace and public safety. The show cause notice clearly states how the possession of the gun by licensee would endanger public peace and public safety. 6 Thereafter, the learned advocate for the petitioner placed reliance on the observations made in paragraph 14 of a decision of the Delhi High Court in Sheru Vs. Deputy Commissioner of Police (Licensing) Delhi, 1993 Cr.L.J. 3289, wherein it is observed that for an order suspending a licence to be passed, it must pass some tests. It must show that licensing authority applied its mind to the material placed before it and thereafter deemed it necessary for the security of public peace and safety to initiate action under Section 17(3)(b) of the Act. In the said case, the order came to be quashed observing that the impugned order only makes a mere reference to the police report however, the police report is not part of the order and thus, there was nothing on record as to whether that report or any part thereof was accepted and made the basis of the order. However, in the present case, on going through the show cause notice and the order, it is seen 5 cr-wp-1859-10 that all the tests under Section 17(3)(b) have been complied with i.e. the authority had taken into consideration all the material placed before him including the reply filed by the petitioner and thereafter, in view of the offence under Section 307 of IPC in which the petitioner used the firearm in question deemed it necessary to take action under Section 17 as it was necessary to do so for the security of public peace and public safety. 7 The learned advocate for the petitioner also placed reliance on this very decision to support his contention that just because one case is pending against the licensee, the firearm licence cannot be suspended or canceled. He pointed out that in the case of Sheru also the accused was involved in a criminal case, yet it was not felt to be a fit case to quash the licence. He relied on para 14 of the said decision. It would be useful to quote the relevant portion of the said para. The observations in paragraph 14 of the said judgment are as under: “Any how although the pendency of a minor or capital crime, may possibly lead to an action under clause (a) of sub-section (3) of Section 17 on the ground that such person is “unfit for licence under 6 cr-wp-1859-10 the Act ” more so, when the licensed weapon is used or employed in the alleged crime, the pendency of one single criminal case of the nature as in the present case where admittedly no firearm was used and only simple hurt was allegedly caused cannot attract clause (b) of sub- section (3) of Section 17 ”. The decision is not applicable to the present case, because in the present case, the petitioner is involved in a case under Section 307 of IPC and he has used the firearm in question to commit an offence under Section 307 of IPC. In the case relied upon, the licensee therein, was involved in only one criminal case where admittedly no firearm was used and only simple hurt was caused. The licensee therein was involved in a case only under Sections 147, 148, 149 and 323 of IPC. In that case, no firearm was used in the said offence, hence, these observations came to be made, whereas in the present case, firearm has been used by the licencee to commit the offence under Section 307 of IPC. Thus, this decision would not apply to the facts of the present case. 8 In view of the fact that the licensed weapon was used by the petitioner to commit an offence under Section 307 it can very well be 7 cr-wp-1859-10 apprehended by the revoking authority that in future also the weapon may be misused leading to breach of public peace and safety. In the facts of this case, this apprehension on the part of the revoking authority can be said to be a very real apprehension with sound basis for the same. In this view of the matter, no interference is called for. Petition is dismissed. [ SMT. V.K.TAHILRAMANI, J.]