HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1172 of 2009 (M/S) Ahatshyam @ Bhura. ………..Petitioner Versus Commissioner, Garhwal Mandal And another. …….Respondents Mr. Manish Arora, learned counsel for the petitioner Mr. R.C. Arya, Brief Holder for the State of Uttarakhand. Dated: May 12, 2010 Hon’ble V.K. Bist, J. Present writ petition has been filed by the petitioner for the following reliefs:- “(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 10.01.2005 passed by respondent no.2 in case no. 48 of 2002 State vs. Ahatshyam @ Bhura under Section 17 of Arms Act and also the judgment and order dated 22.08.2008 passed by respondent no.1 in Arms Appeal No. 4/2007-08 Ahatshyam @ Bhura vs. State of Uttarakhand respectively. (ii) Issue any other or further writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (iv) To award the cost of the petition in favour of the petitioner.” 2. Brief facts of the case are that the petitioner is a milkman and is carrying on business of milk. On 21.08.2002, the District Magistrate, Haridwar issued a show cause notice to the petitioner u/s 17 of the Arms Act, 1959 in Case No. 48 of 2002 State vs. Ahatshyam @ Bhura on the basis of the report dated 15.07.2002 submitted by the Station House Officer, Police Station Bhagwanpur, District Haridwar in which it was informed that on 27.10.2000 two cases i.e. Case Crime No. 149/2002 under Section 504/506/307 I.P.C. and Case 2 Crime No. 150/2002 were registered. In this regard charge sheet was submitted against the petitioner, in which the petitioner was found in illegal possession of one 38-Bore country made Tamanch and one cartridge of same bore. In this regard the Dy. Superintendent of Police, Mangalore and the Senior Superintendent of Police, Haridwar sent their recommendations on 17.07.2002 and 24.07.2002 respectively for cancellation of the arms licence of the petitioner. The arms licence of the petitioner bearing No. 188 DBBL gun/A-4322 was suspended by the letter dated 21.08.2002 and the petitioner was directed to show cause why his arms licence may not be cancelled. The petitioner in his objection submitted before the District Magistrate on 11.10.2002 stated that both the abovementioned cases in the show cause notice are the outcome of party fractions and vocational competition as well as with the collusion of the police. It was further submitted in the objection that the petitioner is holding licence from more than ten years and no complaint of misusing the licence has ever been made. There is no evidence that the possession of the arms licence is in any manner prejudiced to the peace and public safety. The District Magistrate, Haridwar after hearing the Chief Prosecution Officer and after perusing the record vide order dated 10.01.2005 cancelled the arms licence of the petitioner. Being aggrieved with the order of the District Magistrate, the petitioner filed Arms Appeal no. 4 of 2007-08 before the Commissioner, Garhwal Division, who also dismissed the appeal vide order dated 22.08.2008. Hence this petition. 3. In the counter affidavit filed on behalf of the respondents it has been stated that the petitioner had 3 violated Rules and Arms Act and also the terms and conditions of the arms licence, therefore the respondent no.2 vide order dated 10.01.2005 has cancelled his arms licence. Further, there is no legal infirmity on the order dated 22.08.2008 passed by respondent no.1 in Arms Appeal no. 4 of 2007-08. It has been further stated in the counter affidavits that since two criminal cases were registered against the petitioner in Police Station Bhagwanpur, Haridwar, it creates his integrity to be doubtful and both the Courts below have given concurrent finding against the petitioner, therefore the respondent no.2 has rightly cancelled the arms licence of the petitioner vide his order dated 10.01.2005 which requires no interference. 4. Learned counsel for the petitioner submitted that that both the above criminal cases are the outcome of party fractions and vocational competition as well as with the collusion of the police. It was further submitted that the petitioner is holding licence from more than ten years and no complaint of misusing the licence has ever been made. There is no evidence that the possession of the arms licence is in any manner prejudiced to the peace and public safety. He further submitted that petitioner has already been acquitted in the criminal case i.e. Session Trial No. 93 of 2001 by the Addl. District Sessions Judge/First Fast Track Court, Roorkee, Haridwar vide judgment dated 15.05.2003. He further argued that licence of the petitioner could not be cancelled due to pendency of criminal cases. 5. On the other hand learned Brief Holder for the State submitted that the arms licence of the petitioner was 4 cancelled due to pendency of criminal case and for maintaining law and order. 6. The provision relating to variation, suspension and revocation of arms licences is provided under Section 17(3) of the Arms Act which reads as under:- “17. 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 liecensing authority may by order in writing suspend a licence for such periods 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 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 apply 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. 5 4. The licensing autdhority 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 therefor 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 licensing authority is subordinate may by 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 be, apply in relation to the suspension or revocation of a 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 the 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 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.” 6 7. After hearing learned counsel for the parties and after perusing the entire material available on record, this Court finds that merely because of pendency criminal cases, the licence of the petitioner could not have been suspended or cancelled. The essential ingredients for the suspension/cancellation of the arms licence is, that there must be material available before the licencing authority to give its subjective satisfaction that the possession of the arms by the licensee was going to endanger public peace or public safety. But in this case nothing has been found on which basis the licensing authority came to the conclusion that the possession of licence was going to endanger public peace or public safety. The licensing authority has also not recorded sufficient and valid reasons for cancelling the arms licence of the petitioner. Only reason for cancellation of licence has been mentioned in the order dated 10.01.2005 is pendency of case crime no. 150/2000 under Section 25 of the Arms Act, which alone cannot be said a valid ground for cancellation of arms licence. 8. In view of the above discussions, the writ petition is allowed. The impugned order dated 10.01.2005 passed by District Magistrate, Haridwar and the order dated 22.08.2008 passed by the Commissioner, Garhwal Division are hereby quashed. 9. No order as to costs. (V.K. Bist, J.) 12.05.2010 NCM: