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Jai NaraIn Rai Vs. District Magistrate and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 288 of 1960
Judge
Reported inAIR1966All265
ActsArms Act, 1878 - Sections 18; Constitution of India - Article 226
AppellantJai NaraIn Rai
RespondentDistrict Magistrate and ors.
Appellant AdvocateRajendra Prasad Rai, Adv.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
criminal - cancellation of licence - section 18 of arms act, 1878 and article 226 of constitution of india - cancellation of licence without hearing licencee by the district magistrate - held, district magistrate has committed a breach of principles of natural justice. - - 4. it was said in the counter-affidavit that the appellant disentitled himself to the relief sought by him by his failure to file an appeal to the commissioner from the impugned order......no. 1, the district magistrate of azamgarh, cancelling under section 18 of the indian arms act an arms licence possessed by the appellant on the ground that it was necessary to do so for the security of public peace. the order of the district magistrate was challenged on the ground that no inquiry was held in the appellant's presence, that he was not called upon to show cause and was not heard in any other manner and that, consequently, the first principle of natural justice was violated. it is said that a sub-divisional magistrate made an inquiry into use fey the appellant of the gun on a certain occasion but the inquiry was made at the back of the appellant. he was not informed to be present at a certain place at a certain time during the inquiry with the result that he was never.....
Judgment:

Desai, C.J.

1. This is an appeal from a judgment of our brother Broome refusing toSlash an order passed by respondent No. 1, the District Magistrate of Azamgarh, cancelling under section 18 of the Indian Arms Act an arms licence possessed by the appellant on the ground that it was necessary to do so for the security of public peace. The order of the District Magistrate was challenged on the ground that no inquiry was held in the appellant's presence, that he was not called upon to show cause and was not heard in any other manner and that, consequently, the first principle of natural justice was violated. It is said that a Sub-Divisional Magistrate made an inquiry into use fey the appellant of the gun on a certain occasion but the inquiry was made at the back of the appellant. He was not informed to be present at a certain place at a certain time during the inquiry with the result that he was never present at any stage of the inquiry. The Sub-Divisional Magistrate never questioned him about anything and never asked him to produce any evidence. At the end of the ex parte inquiry he submitted a report to the District Magistrate on the basis of which he passed the impugned order.

2. Our learned brother held that no inquiry was required to be made at all in the appellant's presence under Section 18. He has referred to Rameshwar Prasad Kedarnath v. District Magistrate, AIR 1954 All 144 in which it was held that a licence to deal in controlled cloth cannot be cancelled without the licencee having been given an opportunity to be heard but he distinguished it on the ground that a licence to deal in cloth involves a fundamental right of holding property and of carrying on business, whereas cancellation of a licence to possess fire-arms does no involve any question of fundamental right. Under the Arms Act a person cannot acquire and hold or possess firearms without a licence. If a licence is granted to him he can acquire and hold fire-arms but the moment the licence is cancelled he ceases to be entitled to hold them and must deposit them with the District Magistrate or the police or sell them. With great respect to our learned brother we do not see how it can be said that cancellation of a licence for fire-arms does not involve loss of any fundamental right.

3. Under section 18 a licence can be cancelled for reasons to be recorded in writing when the District Magistrate deems it necessary for the security of the public peace to do so. The District Magistrate must find it necessary for the security of the public peace to cancel the licence and then only he can cancel it. The finding that it is necessaiy for the security of the public peace to cancel the licence involves loss of the right to hold or possess the firearms and may, therefore, be treated as a quasi-judicial finding. The fact that the District Magistrate has to give reasons for the order of cancellation means that it has to be a speaking order. The reasons must be found in the presence of the licencee, he must have an opportunity of showing that the reasons on which the District Magistrate proposes to actdo not exist at all or are outweighed by other circumstances. The District Magistrate cannot reach the finding adverse to the licencee that it is necessary for the security of the public peace to cancel his licence without giving him an opportunity of showing that it is not so necessaiy. Certainly it is for the District Magistrate to find the necessity but he must find it fairly.

If there is really no necessity, he cannot find it except in a bona fide manner i.e., honestly and after an inquiry in which he has an opportunity of being heard. The finding of necessity is the finding to be given by him after assuming jurisdiction and not one intended to be reached ex parte for assuming jurisdiction. If he cancels the licence without giving an opportunity to the licencee he commits a breach of the first principle of natural justice. It is an order adverse to the licencee depriving him of the right to hold and possess fire-arms.

4. It was said in the counter-affidavit that the appellant disentitled himself to the relief sought by him by his failure to file an appeal to the Commissioner from the impugned order. But the fact is that he could file the appeal only within thirty days from the date or the order and that the order was communicated to him after the expiry of thirty days, with the result that he could no longer file an appeal.

5. We allow this appeal and quash the order of the District Magistrate cancelling the appellant's licence. It will be open to the District Magistrate to take fresh proceedings for cancellation of the licence, if he considers it necessary, in conformity with the opinion expressed in this judgment.

6. The appellant will get his costs fromthe respondents.


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