Letters Patent Appeal No.484 OF 2002 (Against the order dated 15.3.2002 passed by a learned Single Judge in C.W.J.C.No.1312 of 2002) -------- SHAILESH KUMAR S/O LATE KARU SINGH, RESIDENT OF VILLAGE BARUNTAR, POLICE STATION HARNAUT, DISTRICT NALANDA --------------------------------------Appellant Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, NALANDA -------------------------------Respondents For the Appellant : Mr.Pramod Kumar, Advocate Mr.Ritesh Kumar, Advocate For the Respondents : Mr.Anil Kumar, G.P.XI. P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN --------- Prasad & Ranjan, JJ : Original writ petitioner Karu Singh, aggrieved by the order dated 15.3.2002 passed by a learned Single Judge in C.W.J.C.No.1312 of 2002 dismissing the writ application, has preferred this appeal under Clause 10 of the Letters Patent. During the pendency of the writ application, writ petitioner had died and this appeal is being persued by his son. Short facts giving rise to the present appeal are that the writ petitioner obtained arms licence no.53 of 1983 for a non- prohibited bore rifle and on the basis of that purchased non- prohibited .315 bore rifle no.83175. He was made an accused in Harnaut P.S.No.17 of 1983 registered under Section 307 and 324 2 of the Indian Penal Code and 27 of the Arms Act. By order dated 24.5.1998 his licence was cancelled by the licensing authority and the appeal preferred by him against the said order was dismissed by the appellate authority by order dated 4.9.1990. Writ petitioner deposited the arms with an authorized arms dealer in the said year. Writ petitioner faced trial in Harnaut P.S.case No.17 of 1983 and ultimately acquitted by judgment dated 12th of August, 1999. Thereafter he filed application on 22nd of October, 1999 before the licensing authority seeking permission to sell the rifle. The licensing authority by order dated 29th of August, 2001 rejected his prayer and simultaneously directed for forfeiture of the arms in purported exercised of the power under Section 32 of the Arms Act (hereinafter referred to as the „Act‟). Writ petitioner challenged the aforesaid order which has given rise to the impugned order. The learned Single Judge on appreciation of facts and law came to the conclusion that the licensing authority did not possess power for forfeiture of the arms under section 32(1) of the Act and that power is conferred on the court convicting the accused in a criminal case. However, the learned Single Judge held that such an order can be passed under section 21(2) of the Act and accordingly dismissed the writ application. Mr.Pramod Kumar, appearing on behalf of the appellant raises a very short point. He submits that the District 3 Magistrate has the right to forfeit the arms after stipulated period, but in view of Section 21(4) of the Act, he was required to give notice to the person, who had deposited the arms and in case of his death upon his legal representative and he having failed to do the same, the order of forfeiture of arms is vitiated on that account only. G.P.XI, appears on behalf of the State and submits that mere non-mentioning of the provision itself shall not vitiate the order of the District Magistrate directing for forfeiture of the arms if it shown that such power exists. He points out that arms was rightly forfeited under section 21(3) of the Act. We have considered the submission of the learned Counsels for the party and we are of the opinion that the impugned order suffers from the vice of procedural ultra vires. It is not in dispute that no show cause notice before passing the order of forfeiture was either given to the writ petitioner or his legal representative. Question therefore is as to whether such an order can be passed without giving notice under section 21(4) of the Act. Section 21(4) of the Act, which is relevant for the purpose, reads as follows : “21(4) Before making an order under sub-section (3) the District Magistrate shall, by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the service of the notice, why the things specified in the notice should not be forfeited.” 4 Section 21(4) of the Act, inter alia, provides that before making an order of forfeiture of the arms the District Magistrate shall by notice in writing to be served on the depositor or in the case of his death upon his legal representative require the depositor or his legal representative as the case may be to show cause within 30 days as to why the arms deposited be not forfeited. Section 21(5) of the Act confers discretion on the District Magistrate to pass such order as he thinks fit after consideration of the cause shown by the depositor or his legal representative. In the present case, no such notice having been given, the order for forfeiture of the arms is legal. Unfortunately this aspect of the matter was neither addressed and consequently not considered by the learned Single Judge while passing the impugned order. In view of what we have observed above, the order of the learned Single Judge dismissing the writ application deserves to be interfered. Appellant shall appear before the District Magistrate within six weeks from today. The District Magistrate shall serve on him, the show cause notice within three weeks of his appearance. Appellant will file his show cause within four weeks thereafter. The District Magistrate within eight weeks of filing of the show cause shall decide the matter finally in accordance with law. In the result, the appeal is allowed, impugned 5 judgment of the learned Single Judge is set aside with the direction aforesaid. In the facts and circumstances of the case, there shall be no order as to cost. (Chandramauli Kr.Prasad, J.) ( Dr. Ravi Ranjan, J.) Patna High Court, Dated, 12th of December, 2008. NAFR/ Narendra/