1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R (1) S.B.Civil Writ Petition No. 5813/2008 Amritpal Singh Vs. State of Rajasthan & Ors. (2) S.B.Civil Writ Petition No. 5097/2008 Bohad Singh Vs. State of Rajasthan & Ors. (3) S.B.Civil Writ Petition No. 3960/2008 Pavan Kumar Aneja Vs. State of Rajasthan & Ors. (4) S.B.Civil Writ Petition No. 4609/2008 Ajay Kumar Vs. State of Rajasthan & Ors. (5) S.B.Civil Writ Petition No. 4654/2008 Likhma Ram Vs. State of Rajasthan & Ors. (6) S.B.Civil Writ Petition No. 6164/2008 Bhan Singh Vs. State of Rajasthan & Ors. (7) S.B.Civil Writ Petition No. 5445/2008 Rajeev Kumar Andrews Vs. State of Rajasthan & Ors. (8) S.B.Civil Writ Petition No. 6156/2008 Lal Nath Vs. State of Rajasthan & Ors. (9) S.B.Civil Writ Petition No. 5485/2008 Teja Singh Vs. State of Rajasthan & Ors. (10) S.B.Civil Writ Petition No. 5418/2008 Ayub Khan Vs. State of Rajasthan & Ors. ......... Date of Order : 12th February, 2009 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. R.C.Joshi } Mr. Rakesh Matoria } Mr. M.K.Garg } Mr. J.S.Choudhary} 2 Mr. B.S.Sandhu} Mr. Harish Purohit} for the petitioners. Mr. B.L.Tiwari, Addl. Govt. Counsel } for the respondents. BY THE COURT These ten writ petitions involve common question of law and facts and therefore, with the consent of learned counsel for the parties, are heard and decided together taking the facts of SBCW No.5813/2008 as a leading case. Briefly stated the facts and circumstances of the case to the extent they are relevant and necessary for the decision of these writ petitions are that the petitioner initially applied for the Arms Licence for Muzzle Loading Gun (for short 'the ML Gun' hereinafter) before District Magistrate, Firozpur, who issued a Arms Licence No.493/April/2k/ABH. However, subsequently, it revealed that the petitioner got the ML Gun licence from District Magistrate, Firozpur by concealing material facts as also by not disclosing the correct address and therefore, the District Magistrate by order dated 30.9.2002 cancelled the Arms Licence for ML Gun issued in favour of the petitioner being Licence No.493. However, without disclosing this fact, the petitioner approached the Licensing Authority at Sri Ganganagar for change of Bore on the said ML Gun Licence though on the date of applying for change of Bore before the Licensing Authority at Sri Ganganagar, the petitioner has concealed the very material fact 3 that the ML Gun Licence issued by District Magistrate, Firozpur was not in existence since it has already been cancelled by order dated 30.9.2002. Later when this fact revealed, a criminal case has been registered against the petitioner. The change of Bore granted on a cancelled licence was in violation of Rule 51 of the Arms Rule, 1962 (for short 'the Arms Rules' hereinafter). On these premises, the respondent District Magistrate, Sriganganagar, the Licensing Authority cancelled the licence No.92/05. Aggrieved by the order of Licensing Authority, the petitioner preferred an appeal before the Divisional Commissioner, Bikaner, the Appellate Authority which came to be dismissed by the order impugned Annex.9 dated 7.5.2008. Hence these writ petitions. A reply to the writ petition has been filed by the respondent State in various writ petitions contenting therein that there had been a gross illegality in grant of Licence/ Change of Bore largely in violation of procedure prescribed more particularly in the Border District Sriganganagar and in some of the cases the grant of licence was by an incompetent authority i.e. Additional District Magistrate who according to learned Additional Govt. Counsel is not a Licensing Authority as defined in Section 2 (f) of the Arms Act, 1959 (for short 'the Arms Act' hereinafter). According to the learned Additional Govt. Counsel, the applications seeking change of Bore in these cases were 4 neither in prescribed proforma as required under Rule 51 of the Rules nor there has been any police verification more particularly a verification by the Intelligence Wing of the State i.e. CID (CB). The Home Department of the State by a Circular dated 17.4.1996 had made it clear that in border area, before grant of change of Bore of licence, the police verification by CID (Intelligence) has to be obtained as per the procedure provided under Section 13 of the Arms Act r/w Rule 50 of the Arms Rules. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioners that since most of the petitioners had licence to hold ML Gun may be issued either from Firozpur, Punjab or other districts of the Rajasthan and thereafter the petitioners moved before the Additional District Magistrate, Sriganganagar for change of Bore who allowed the applications and changed the Bore from Muzzle Loading Gun to .12 Bore Gun, .22 Bore Rifle, .32 Bore Revolver etc. and since they held the Arms under the licence issued by the Additional District Magistrate and therefore, the cancellation of such licence is bad in law. It is also contended that the petitioner is not involved in commission of crime and allowing the petitioner to keep the licence would not endanger the public safety or peace. In all these cases undisputedly, the petitioners had the ML Gun Licence. In Writ Petition No.5813/08, 5097/08 and 5 3960/08, the licence for ML Gun was said to have been issued by the Licensing Authority, Firozpur, Punjab. However, later when the illegality was revealed including the fact that licences have been obtained by concealment of material facts including incorrect disclosure of addresses, the CBI inquiries against some of them were pending, their ML Gun licences came to be cancelled. Yet without disclosing cancellation of Licence, they approached the Additional District Magistrate, Sriganganagar for renewal and then change of Bore from ML Gun to .12 Bore, .22 Bore Rifle and .32 Bore Revolver etc. The licensing authority has been defined in Section 2 (f) of the Act of 1959 according to which “licensing authority” means an officer or authority empowered to grant or renew licences under rules made under the Act, and includes, the Government. Rule 4 of the Rules of 1962 deals with the Licensing Authority and forms of licence which provides that the licences under Chapter II of the Act may be granted or renewed for such purposes, by such authorities, in such forms and to be valid for such period and in such areas as are specified in Schedule II, subject to such conditions as are specified in that schedule and in the licence. Schedule II provides the places or class of persons in a district, the District Magistrate has the jurisdiction to grant licence throughout the district or his area of jurisdiction or any specified part of his jurisdiction and the 6 renewing authority is also the District Magistrate. Thus, for the purpose of acquisition/ possession/ carrying and use for protection/ sport/ target practice/ display of Arms, the licensing authority in a district is the District Magistrate. Rule 51 of the Rules deals with application for licence which reads as under :- “51. Application for licence.- Every application for the grant of a licence under these rules- (a) shall be submitted in Form A; (b) may be presented by the applicant in person or sent through the medium of posts office or otherwise, to the licensing authority, as far as possible having jurisdiction in respect of the place where he ordinarily resides or has his occupation. (c) shall contain all such information as is necessary for the consideration of the application, and in particular- (i)where the application is for the licence for the acquisition, possession and carrying of arms and ammunition for crop protection, shall specify details of the land and cultivation requiring protection and area which the arms or ammunition are required to be carried; (ii) Where the application is for a licence for import by land or river or for export or for transport or for export, and re- import, or for import, transport and re-export of arms, or ammunition, shall specify the place or destination, the route, the time likely t be occupied in the journey and the quantity, 7 description and price of each kind of arms or ammunition in respect of which the licence is required and the purpose for which they are intended. (d) Where the grant of licence requires a certificate of no objection from some other authority as provided in rule 50, shall state whether certificate has been obtained and , if so, shall be supported by evidence thereof; (e) where an application is for the grant of licence in Form II, Form III, Form IIIA, Form IV, Form V or Form VI from a person other than a bona fide tourist as defined in section 10 (1) (b) of the Act it shall be accompanied by two passport size copies of the latest photograph of the applicant: Provided that- (i) an application by a member of the armed forces of the Union shall be made through his commanding officer to the licensing authority having jurisdiction in respect of the place to which he is for the time being posted; and (ii) the licensing authority may, in accordance with any instructions issued by the State Government in respect of all or any class of fire-arms, require the personal attendance of the applicant before granting or renewing the licence applied for. Rule 51 A provides that the applicant shall not suppress any factual information or furnish any false or wrong 8 information in the application form. Chapter III of the Act of 1959 deals with the provisions relating to licence. Sub-section (1) of Section 13 provides that an application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. Sub-section (2) of Section 13 provides that 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. Sub-section (2A) provides that 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 licence or refuse to grant the same. Section 17 of the Act of 1959 deals with variation, suspension and revocation of licences. Section 17 (3) (c) of the Act of 1959 provides that if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the 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 applying for it, the licencing authority may revoke the licence. 9 In Ranjeet Singh Vs. State of Rajasthan and Ors. 2007 (4) RLW, 3110, this Court observed that critical analysis of the law as discussed above, would indicate that in spite of the fact that the petitioner was acquitted in most of the criminal cases in which he was involved, the District Magistrate was yet entitled to take into consideration not only the number of cases but also the nature of allegations together with the report received from the Addl. S.P. and the application of the SHO, Police Station Mahesh Nagar to arrive at the required satisfaction in the meaning of Section 17 (3) (b) of the Act that it was necessary for the security of the public peace or for public safety to revoke the licence. Whether revocation of the licence under provisions of sub-section (4) of Section 17 was necessary for the purpose of the public peace or for public safety and in doing so, if he has arrived at the satisfaction that it was necessary to cancel/ revoke the licence granted to the petitioner, this Court in exercise of its power of judicial review under Article 226 of the Constitution of India cannot substitute such satisfaction recorded by the licensing authority unless reasons recorded are so perverse, obnoxious and outrageous that no person of reasonable prudent could reach such satisfaction or the decision was actuated by malafides or based on extraneous considerations. Employment of the kind of phraseology in section 17 of the Act by the legislature leaves no manner of doubt that a 10 wide residuary discretion has been vested in the licensing authority to revoke the licence provided it is satisfied that the holder is unfit for the licence under the Act and in doing so he is entitled to take into consideration not only such criminal cases which have resulted into conviction but also those which have ended in acquittal and even the mere pendency of criminal case, and on the above premises held that wide residuary discretion has been vested in licensing authority to revoke the licence on its satisfaction and in do so he is entitled to take into consideration all the criminal cases resulted into conviction and even acquittal and are pending. In Mohd. Tarik alias Guddu Vs. Commissioner, Allahabad and Ors. 2008 (3) All. L.J., 478 while considering the similar question, the Court held that the arms licence of the petitioner has rightly been cancelled by the authority concerned for non-disclosure of correct information required for issuance of licence for firearms. In Sardar Chand Singh Vs. Commissioner, Burdwan Division and Another, AIR 1958 Calcutta 420, the Calcutta High Court observed as under:- “The Divisional Commissioner has given reasons fairly and fully. The reason is that the appellant was involved in several litigations of a serious nature and that a person who is so involved in that way could not be considered to be a suitable person for possessing a revolver. There, again, the reasons are there. The question 11 whether such reasons are right or wrong is not for this Court to examine under Art. 226 mala fide. I cannot help expressing the view that the reasons appear to me to be good. The law as I understand it is not that a person can only be refused a licence for a revolver if in such a case he has been convicted by a criminal court. Even if he is not convicted or even if he is acquitted, it may very well be a ground to refuse him a gun licence as not being a safe person to have such fire arms. Even if the Magistrate's reasons were far too brief the Commissioner's reasons are fuller and as the Commissioner is the appellate authority under the Rules, the requirement of reasons for the refusal is in these circumstances amply satisfied.” In Kapildeo Singh Vs. State of Bihar and Ors. AIR 1987 Patna 122, the Patna High Court had an occasion to consider the scope of Section 17 (3) of the Arms Act, wherein it has been observed as under:- “..that under sub-section (3) the actual conviction or acquittal on the criminal charge does not have an inflexible or conclusive impact on the exercise of the direction by the licensing authority thereunder. Even if the holder of the licence may be acquitted by narrowly giving the benefit of doubt, the licensing authority could, perhaps, still take the view that along with other factors such a person may not be fit for holding an arms licence. Equally, conviction on any and every criminal charge would not provide an inflexible rule that the licensing authority must revoke the same and it may well be justified in allowing the continuance of the said licence. As is noticed hereafter, conviction and acquittal are issues of relevance under sub-section (7) for the criminal Court and not conclusive for the licensing authority who is governed by the provisions of sub-section (3).” Keeping in view the material available on record, in 12 my view, in these cases neither the application for change of Bore was in the prescribed proforma as required under Rule 51 of the Arms Rules nor there has been requisite police verification by the CID (Intelligence) in view of the State Govt. Circular issued by the Home Department dated 17.04.96. The concealment of material fact is at large to the extent that in some of the cases, the change of Bore has been obtained from incompetent authority by concealing very material facts that ML Gun licence granted by the Licensing Authority, Firozpur has already been cancelled and thus obtaining of the change of bore/ licences by the petitioners by deceitful means by concealing material facts is obvious and therefore, in my view, the respondent District Magistrate as also the Appellate Authority were justified in passing the orders impugned. In this view of the matter, I do not find any merit in the writ petitions. The writ petitions are therefore, dismissed. However, it will be open for the petitioners to apply afresh before the competent Licensing Authority for grant of licence if so advised and if the petitioners apply afresh for grant of licence, the Licensing Authority shall consider and decide the same strictly in accordance with law. Stay petitions stand dismissed. No order as to costs. (H.R.PANWAR), J. rp