IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3092 of 2009 Mohammad Afroz Alam, S/O Dr. Brig.(Retd.), M. Sharif, resident of Mohalla- Mandai Keshwar Khan, P.O. Sasaram, District- Rohtas(Bihar). Pin- 821115………………………………………..…………….Petitioner. Versus 1. The State of Bihar, through the District Magistrate, Rohtas(Sasaram). 2. The Commissioner, Patna Division, Patna. 3. The District Magistrate, Rohtas(Sasaram)……………..Respondents. -------- For the petitioner : M/S. Binod Kumar Singh and Bijay Shankar Choubey, Advocates. For the State : Mr. Neeraj Raj, A.C. to G.P. IX. -------- 4. 05.09.2011. Heard learned counsels for the petitioner and the State. The petitioner has prayed for quashing the order dated 31.10.2008 passed by the Divisional Commissioner, Patna, in Arms Appeal Case No. 253 of 2007 wherein the order dated 02.09.2006 passed by the District Magistrate, Rohtas at Sasaram vide Arms Case No. 1065 of 2006 was under challenge, by which the application for grant of license of pistol to the petitioner had been rejected. The prayer has also been made for direction to the District Magistrate, Rohtas at Sasaram to grant license of 9MM pistol. The petitioner runs a business in the district of Rohtas. His father retired 2 as a Brigadier and was having two licensed arms out of which one gun was given to the father of the petitioner by the Government of Punjab for active participation in 1965 Indo-Pak War. The said gun was transferred in the name of petitioner on 03.10.1997 by issuance of license by the District Magistrate, Rohtas. Since father of the petitioner is quite old and he has considerable property, so considering the apprehended threat the petitioner applied for license of pistol also which was given to the father of the petitioner by Ordinance Depot, Allahabad in 1963 for which the appropriate license was issued on 03.06.1978 by the District Magistrate, Delhi, on behalf of the Union of India. It appears from the order of the Divisional Commissioner, Patna, as contained in Annexure-1, that the Officer- in-Charge, Sasaram, the Sub Inspector of Police, Sasaram, the Sub Divisional Officer, Sasaram, the Divisional Officer, Sasaram, the Divisional Officer, Bikramganj and the Superintendent of Police, Rohtas, Dehri, recommended for grant of license to 3 the petitioner but the learned District Magistrate, Rohtas at Sasaram, on 02.09.2006 vide Arms Case No. 1065 of 2006 rejected the application of the petitioner on the ground that the petitioner is already having a license of double barrel gun and no proof with regard to specific threat has been brought on record for issuance of license for the second arms i.e., pistol. The order of the District Magistrate was challenged in appeal before the Divisional Commissioner. The Divisional Commissioner, Patna, vide order dated 31.10.2008, passed in Arms Appeal No. 253 of 2007 rejected the appeal on the ground that the double barrel gun is sufficient for security of the petitioner and no proof has been produced with regard to special threat to his life. Learned counsel for the petitioner submits that there is no requirement under the law to prove threat for issuance of license. Moreover, under the provisions of Section 3(2)of the Arms Act any citizen can possess three arms. 4 Learned counsel for the State submits that the impugned orders do not require any interference as after considering the application of the petitioner the same has been rejected. Considering the contentions of the parties, the certain provisions of the Arms Act are necessary to be referred. Sub section 2 of Section 3 of the Arms Act reads as follows:- “Notwithstanding anything contained in sub-section(1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms: Provided that a person who has in his possession more firearms than three at the commencement of the Arms(Amendment)Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer-in-charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of Section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub- section.” Section 13 of the Arms Act provides the provisions relating to grant of licenses. Sub Section (2) of Section 13 prescribes the manner in which the report of the nearest police station has to be 5 obtained for consideration for grant of license. Section 13 Sub section 2. “On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.” “(2A) The licensing authority, after such inquiry, if any, as it may, consider necessary, and after considering the report received under sub-section(2), shall subject to the other provisions of this Chapter, by order in writing either grant the license or refuse to grant the same: Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.” Section 14 of the Act deals with the ground on which the license can be refused which reads as follows: “14. Refusal of licenses.-(1) Notwithstanding anything in Section 13, the licensing authority shall refuse to grant- (a) a license under section 3, section 4 or section 5 where such license is required in respect of any prohibited arms or prohibited ammunition; (b) a license in any other case under Chapter II,- (i) where such license is required by a person whom the licensing authority has reason to believe- (1) to be prohibited by this Act or by any other law for the time 6 being in force from acquiring, having in his possession or carrying any arms or ammunition, or (2) to be of unsound mind, or (3) to be for any reason unfit for a license under this Act; or (ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such license. (2) The licensing authority shall not refuse to grant any license to any person merely on the ground that such person does not own or possess sufficient property. (3) Where the licensing authority refuses to grant a license to any person it shall record in writing the reasons for such refusal and furnish to that person 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.” From the conjoint reading of Sections 3, 13 and 14 of the Arms Act, it appears that the petitioner’s application for grant of license was rejected on the grounds which is contrary to aforementioned provisions. In a similar case when the application for grant of arms license was turned down on non providing of cogent documentary evidence in support of threat 7 to life, this Court, in the case of Amrendra Kumar Singh Vs. The State of Bihar & Ors reported in 2007(4) B.B.C.J. page 244 held in the following words:- “2. The only ground given is that even though the petitioner had valid recommendations from all concerned he had failed to file any cogent documentary evidence in support of any threat to him. A bare perusal of the impugned order shows total non-application of mind. This Court wonders what the learned licensing authority mean by the aforesaid. Does he mean that an arms license would only be granted if there has been threat to life and property or does he mean that people have to be killed in order to qualify for getting arms license? I am afraid. He has totally misconstrued his jurisdiction in this regard. An arms license is for protection and is a statutory right. It is not dependent on any actual incident having occurred. For if that were so the Act and the Rules framed thereunder would have clearly specified that as a policy for grant of license. That is not so. It is not a grant of privilege by the licensing authority on his own sole subjective discretion.” The respondent authorities have not only rejected the application of the petitioner without considering the parameters as prescribed under the Arms Act but also without considering that the father of petitioner fought for the nation and rendered unblemished service as Brigadier in the Indian Army whose son is running from pillar to post for getting 8 arms license which was initially provided to the Brigadier rank officer. Consequently, this Court finds that the impugned orders have been passed by the District Magistrate, Rohtas at Sasaram and the Divisional Commissioner, Patna, considering the grounds which are not only absolutely contrary to the provisions of the Arms Act but also passed with complete non application of mind. Hence, both the orders as contained in Annexures-1 and 2 are hereby quashed. The respondent – District Magistrate, Rohtas, Sasaram, is expected to reconsider the application of the petitioner for grant of pistol license in view of the guidelines discussed above and dispose off the application of the petitioner within a period of two months from the date of receipt/production of a copy of this order. With the above observation, this writ application is disposed off. U. K. ( Dinesh Kumar Singh, J)