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Mohd. Afaq Vs. the Commissioner, Allahabad Division and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ709
AppellantMohd. Afaq
RespondentThe Commissioner, Allahabad Division and anr.
Excerpt:
.....of a licence. i do not think that the failure of the petitioner to appear in the appellate court could cure the infirmity in the said order of the district magistrate......licence. the petitioner was in jail in connection with a case under section 302, i.p.c. when the district magistrate, allahabad issued a show cause notice-cum-order of suspension dated 28-9-1969 suspending his licence and directing him to surrender the gun and the licence, to the station officer, nawabgan.i. the petitioner was also by the said order called upon to show cause why his gun licence should not be cancelled. in the said notice dated 28-9-1969 it was also stated that the licence was proposed to be cancelled because the petitioner was nominated as an accused in a case under section 302, i.p.c. no other ground was mentioned in the said notice. the petitioner states that as he was in jail, # he could not comply with the said notice. admittedly, no cause was shown in compliance.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This petition under Article 226 arises from proceedings under the Arms Act, 1959.

2. The brief facts are these: In 1967 the petitioner was issued a D.B.B.L. gun licence. The petitioner was in jail in connection with a case under Section 302, I.P.C. when the District Magistrate, Allahabad issued a show cause notice-cum-order of suspension dated 28-9-1969 suspending his licence and directing him to surrender the gun and the licence, to the Station Officer, Nawabgan.i. The petitioner was also by the said order called upon to show cause why his gun licence should not be cancelled. In the said notice dated 28-9-1969 it was also stated that the licence was proposed to be cancelled because the petitioner was nominated as an accused in a case under Section 302, I.P.C. No other ground was mentioned in the said notice. The petitioner states that as he was in jail, # he could not comply with the said notice. Admittedly, no cause was shown in compliance with the said notice. Ultimately, the petitioner was admittedly acquitted on 10th May, 1969 in the said criminal case under Section 302, I.P.C. Still, the District Magistrate on 17th July, 1969 cancelled his gun licence. No reply had been submitted by the petitioner to the show cause notice issued to him earlier Against the said order dated 17th July, 1969, whose true copy has been made An-nexure 'B' to the writ petition, the petitioner filed an appeal before the Commissioner, Allahabad Division. The appeal itself was dismissed on 10th February, 1972 on the ground that the appellant did not turji up to press the appeal even though he had notice of the date of the hearing in the appeal. A true copy of the Commissioner's order is said to be Annexure 'D' to the writ petition but actually it should be Annexure 'C to the petition. The petitioner has felt aggrieved against the order dated 17th July, 1969 of the District Magistrate and the aforesaid appellate order of the Commissioner dated 20th February, 1970. In the petition he has sought the following reliefs:

(1) To issue a writ, order or direction in the nature of writ of certiorari calling upon the opposite parties to produce the record of the case and to quash the order of the opposite parties Nos 1 and 2, Annexures C and D dated 17-7-1969 and 20-2-69 respectively cancelling the gun licence of the petitioner.

(2) To issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case so that justice be done.

(3) To award cost of the petition to the petitioner in the aforesaid case.

3. In the counter-affidavit filed on behalf of the District Magistrate, respondent No. 2, it has been admitted that the petitioner was acquitted on 10th May, 1969. It has been emphasised that the show cause notice was served on, the petitioner on 14th December, 1968 and he could have submitted his explanation from the jail. Further, he was acquitted on 10th May, 1969 and thereafter he had opportunity to submit his explanation and in this situation the District Magistrate was justified in cancelling the licence on 17th July, 1969. It has been further stated in the counter-affidavit that there was enmity between two factions and even though both Masiuddin and the petitioner had been acquitted that enmity persisted and there was likelihood that fire arms would be used by both the factions. In this connection, a reference may be made to the three annexures to the counter-affidavit. Annexure 1 is a true copy of the report dated 10th September, 1968, which was submitted by the Senior Superintendent of Police. Allahabad to the District Magistrate. It was concerning Massan alias Masiuddin and it was opined that as he was nominated as accused in a case under Section 302, I.P.C., therefore, it was desirable that his licence should be immediately suspended. Annexure 2 is a true copy of the report dated 28-6-1969 which was submitted by S, D. O., Soraon, It seems to be in compliance with the District Magistrate's order dated 20th May, 1969 on the application of the said Massan alias Masiuddin. A perusal of the said report would disclose that the gun licence of the said person had also been suspended by the District Magistrate on 28th September, 1968 as he was nominated as an accused in a case under Section 302, I.P.C. The accused was acquitted on 10th May, 1969 by the Sessions Judge, Allahabad and thereafter he applied for the restoration of the licence. The District Magistrate it seems, asked the Sub-Divisional Magistrate, Soraon to submit a report on the said application of Massan alias Masiuddin, The S. D. O. opined that the enmity between the factions persisted despite the acquittal of the accused and, therefore, it was not desirable that the licence of Masiuddin should be restored. Annexure '3' is a true copy of the report dated 9-7-19G9 submitted by the S. D. O., Soraon. This report was submitted with reference to the petitioner. The S. D, O. opined that in view of his earlier report submitted in connection with Masiuddin it was not desirable that the gun licence of the petitioner should remain operative, and, therefore, in his opinion, the gun licence of both Masiuddin and the petitioner should be cancelled.

4. In support of the writ petition, I have heard Shri R. N. Singh, learned counsel for the petitioner and in opposition the learned Standing Counsel has been heard. Shri Singh drew my attention to a case reported in Masiuddin v. Commr., Allahabad Division : AIR1972All510 decided by Mr. Justice Dwivedi. This case relates to the said Massan alias Masiuddin and a perusal of the said reported case would disclose that the petitioner and Masiuddin both were involved in the murder case and both were subsequently acquitted. Identical proceedings under the Arms Act were taken against both and even the notices issued in both the cases were identical and the licences of both were cancelled on the same ground. The ground, of course, is not mentioned in the impugned order passed in the case of the petitioner but it has been stated in the counter-affidavit that the S. D. O. submitted his report to the District Magistrate opining that the enmity between the two factions is likely to persist and the fire arms in such a situation should not be allowed to remain with the petitioner and the said Masiuddin. I shall hereafter discuss whether it was open to the respondents to set out a ground which finds no place in the impugned order passed by the District Magistrate, Now, the said Masiuddin challenged the order of cancellation, of his licence in the said reported case and his writ petition was allowed and the order of cancellation passed by the District Magistrate was set aside.

5. Broadly, when the facts are almost identical it seems to be desirable that the decision of this Court should, as far as possible, be also identical unless I find pome compelling reasons to differ from the earlier judgment delivered by Mr. Justice Dwivedi. In the instant case, I do not find any reason to differ from the said judgment. It is true that in the reported decision the licencee did submit his reply. In the instant case, the petitioner did not submit a reply due to circumstances which, he says, were beyond his control (at the relevant time when the notice was received he happened to be in jail.) The District Magistrate, therefore, while cancelling the licence in the reported case did consider the reply submitted by the licencee in that case. In the impugned order of cancellation passed in the instant case, the District Magistrate had no occasion to consider any explanation as none was submitted by the petitioner. These points of distinction are there, yet I do not think they really in any way materially affect the identical nature of the two proceedings.

6. In this connection Section 17, which enables the licensing authority to cancel the licence, may be examined. Section 17(3) lays down as under:

17. (3} The Licensing authority may by cider in writing suspend a licence for such period 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 applying 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 subsection (1) requiring him to deliver up the licence.

Thereafter, Sub-section (5) of Section 17 lays down as under:

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.

It is admitted before me by the learned counsel for the parties that it is cl. (b) of Sub-section (3) of Section 17 which is applicable to the present facts. The other clauses are not attracted. Now, Sub-section (5) gives an imperative direction that the licensing authority while suspending or revoking the licence under Sub-section (3) shall record in writing the reasons therefor. It is obvious that reasons are bound to be recorded by the licensing authority. It may be that such reasons may by reference be said to be recorded in a show cause notice. In such a situation it may be possible to argue that in case no explanation is submitted by the licencee to the show cause notice then the licensing authority need not repeat all the reasons which have been set out in the show cause notice and the reasons in the show cause notice should be deemed to be a part of the order revoking the licence. Even if that approach were to be accepted in the instant case, in the show cause notice the only reason which was set out was that the petitioner was nominated in the criminal case under Section 302 and, therefore, it was not in the security of the public peace or for public safety that the licence should remain operative in his case. In my view, the reasons which have to be recorded under Sub-section (5) of Section 17 cannot be subsequently expanded by the licensing authority. Therefore, in the counter-affidavit it was not open to the respondent No, 2 to add to what was stated in the show cause notice by referring to the report submitted by the S, D, O., Soraon or by inviting the attention of the Court to any other material before him. He was confined to the order recording the reasons for suspension or the revocation of the licence which in the instant case may referentiallv mean the show-cause notice. Even if it be held that the reasons recorded under Section 17(5) could be supplemented by the material on the record, still, in the present case the position would not be different because the opinion of the S.D.O., Soraon that due to enmity between two factions the operation of the licence should be suspended has been judicially held to be not a good ground for the cancellation of a licence. In the reported case Mr. Justice Dwivedi observed: The mere existence of enmity between a licence and anothsr person would not establish the necessary connection with security of the public peace or public safety. There should be some thing more than mere enmity.' With respect, I agree with the said observation. As noticed earlier, the licence has been restored to Masiuddin and it seems only fair that the same should be restored to the petitioner also as both of them were proceeded against in an identical manner. In my view, the mere fact that a person has been involved in a criminal case in which he is subsequently acquitted furnishes no ground for the cancellation of a licence. Acquittal of an accused in a criminal case ordinarily should lead to the inference that he is innocent unless in the judgment of the criminal court there be an observation or finding which would go to show that the accused was merely granted the benefit of doubt or there be some other reason to show that innocence of the accused was not established. In the instant case, the criminal court's .-judgment has not been placed before me but it has been admitted in the counter-affidavit that the petitioner was acquitted and it has not been stated in the said affidavit that he was merely given the benefit of doubt. In such a situation, I do not think Lhat the licensing authority could reasonably come to hold the belief that it was for the security of the public peace or for public safety to revoke the petitioner's licence. I am supported in this connection by the case reported in Gurbax Singh v. District Magistrate, Sangrur AIR 1964 Puni 372 : (1964(2) Cri LJ 332). In the said reported case also the licencee was proceeded against in a criminal case wherein he was subsequently acquitted. Mr. Justice Mahajan held that in such a situation the cancellation of the licence was illegal.

7. I have anxiously thought over an aspect of the matter arising from the fact that the petitioner neither submitted his explanation to the show cause notice and even in the appeal before the Commissioner he did not turn up to press the appeal. In consequence, the Commissioner dismissed the appeal and confirmed the order of the Collector and in such a situation, can the order of the lower appellate Court can be said to be without jurisdiction or be said to contain an error apparent on the face of the record. This aspect of the matter has raised some doubt in my mind but on the basis of the case law placed before me by the learned counsel, I hold that the mere fact that the petitioner did not submit his explanation to the show cause notice and subsequently did not appear in the appeal filed before the Commissioner will not disentitle him from seeking his redress in the writ jurisdiction of this Court. I should emphasise here that the petitioner has sought to get rid of both the orders-the one passed initially by the District Magistrate and subsequently the appellate order passed by the Commissioner. A Division Bench of this. Court in Beni Chand v. District Magistrate, Banda : AIR1953All476 has laid down as under:

Section 18(a) requires that the' authority suspending or cancelling a> licence m.ust himself record why the order has been passed; and futher it should appear from the order that it was passed because it was necessary for the security of the public peace to do so. Where none of these two essential ingredients mentioned in the section is to be found in the order, it is without jurisdiction and must be quashed.

This Division Bench was followed by the Calcutta High Court in Haji Md. v. Commr. of Police : AIR1954Cal157 and by the Gujarat High Court in Ratilal Bogilal v. State of Guiarat : AIR1966Guj244 . As the impugned order on the basis of the law laid down by the Division Bench must be held to be without .jurisdiction, therefore. I do not think that the failure of the petitioner to appear in the appellate Court could cure the infirmity in the said order of the District Magistrate. The invalidity in the order continued to remain despite its affirmance by the iudement in appellate Court.

Shri Singh has lastly drawn my attention to State of U.P. v. Mohd Noon AIR 1958 SC 86 where it has been laid down:

If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court's sense of fair play the superior Court may. we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This wouid be so alt the more if the tribunals holding the original trial and the tribunals hearing the aDpeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice.

In the result, the writ petition is allowed and the order dated 17-7-196$ passed by the District Magistrate, Allahabad (being Annexure 'B' to the write petisioner, Allahabad Division by his order dated 20th February, 1970 (being An-nexure 'C to the writ petition wrongly stated Annexure 'D' in the body of the petition and also wrongly headed as Annexure 'A' in the annexure itself) is quashed and set aside. There will be no order as to costs.


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