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Haji Md. Vakil Vs. Commr. of Police and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberMatter No. 47 of 1953
Judge
Reported inAIR1954Cal157
ActsArms Act, 1878 - Section 18
AppellantHaji Md. Vakil
RespondentCommr. of Police and anr.
Appellant AdvocateB.K. Ghose and ;R.L. Sinha, Advs.
Respondent AdvocateAdv. General for West Bengal and ;A.K. Sen, Adv.
Cases ReferredBeni Chand v. Dist. Magistrate Banda
Excerpt:
- .....such officer, authority, magistrate or commissioner deems it necessary for the security of the public peace to cancel or suspend such license....'mr. ghosh argues that the order of cancellation is bad because (1) the authority who granted the license and purported to cancel it did not record the reasons in writing; (2) that the order does not show that the commissioner deemed it necessary to cancel the license for security of the public peace. 7. mr. ghosh has relied on a decision of a division bench of the allahabad high court -- 'beni chand v. dist. magistrate banda', : air1953all476 (a). speaking of section 18 of the indian arms act, the learned judges held that the statute required two things. firstly that the authority suspending or cancelling a licence must himself record the.....
Judgment:

Sinha, J.

1. The petitioner is a citizen of the Indian Union. In 1942, a license was Issued to him in respect of a D. B. B. 1 Gun by the District Magistrate of Balliah, U. P. In 1946, a fresh license was issued to him in respect thereof by the Commissioner of Police, Calcutta. In 1951, the petitioner applied for a license in respect of a .32 bore revolver, and it was granted to him, by indorsement on his gun license.

2. On the 25th February 1952, the gun and revolver was taken away from the petitioner. On the 1st March 1952, the petitioner received the following communication from the respondent :

From

The Commissioner of Police,

Calcutta

To

Janab H. Mohammed Vakil,

P. 31 Gonesh Ch. Avenue,

Calcutta.

Dated 1st March 1952

Subject :

By virtue of powers vested in me under section 18 of the Indian Arms Act, I hereby cancel your Arms license No. 18266-XVI (Calcutta) in respect of one 12 bore D. B. B. L. Gun No. 471E/13089 by Manlicher Schoenauer and one .32 bore revolver No. 17840 by Smith & Wesson. I therefore advise you to arrange for immediate disposal of the said weapons and thirty six rounds of .32 bore revolver cartridges, now lying in deposit at this office.

Sd. Illegible.

Commissioner of Police.

3. Upon receipt of this communication, the petitioner addressed a letter to the Chief Minister pointing out that no reasons had been assigned for the cancellation and asking for redress. A copy of this letter was sent to the Commissioner of Police. On the 25th April 1952, the petitioner addressed a letter to the respondent referring to the above letter and asked for information as to how the matter stood. On the 8th May 1952, the respondent acknowledged receipt of the said letter and informed the petitioner that intimation would be sent to him as soon as possible. On the 10th May 1952, the private Secretary to the Chief Minister informed the petitioner that his letter had been forwarded to the Secretary, Home (Police) Department, Writers Building for disposal. On the 28th August 1952, the AssistantSecretary to the Government of West Bengal informed the petitioner that Government had considered his case carefully but regretted that they saw no reason to interfere with the decision of the Commissioner of Police, Calcutta. On the same day, the petitioner wrote to the respondent, referring to this letter and requested him to grant him a fresh license. On the 19th November 1952, the respondent replied saving that the matter was receiving attention and further communication would follow.

4. On the expiry of 1952, the original license automatically would have expired unless it was renewed.

5. On the 25/27 April, 1953, the respondent informed the petitioner that the order dated 3rd March 1952 could not be reconsidered. This rule was issued on the 13th May 1953.

6. Mr. Ghosh appearing on behalf of the petitioner argues that the order of cancellation is not in accordance with section 18 of the Indian Arms Act 1878. The relevant provision stands as follows:

'18. Cancellation and ' Suspension of license. Any license may be cancelled or suspended, (a) By the officer by whom the same was granted, or by any authority to which he may be subordinate, or by any Magistrate of a District, or Commissioner of Police in a presidency town, within a local limit of whose jurisdiction the holder of such license may be, when, for reasons to be recorded in writing, such officer, authority, Magistrate or Commissioner deems it necessary for the security of the public peace to cancel or suspend such license....'

Mr. Ghosh argues that the order of cancellation is bad because

(1) The authority who granted the license and purported to cancel it did not record the reasons in writing;

(2) That the order does not show that the Commissioner deemed it necessary to cancel the license for security of the public peace.

7. Mr. Ghosh has relied on a decision of a division bench of the Allahabad High Court -- 'Beni Chand v. Dist. Magistrate Banda', : AIR1953All476 (A). Speaking of section 18 of the Indian Arms Act, the learned Judges held that the statute required two things. Firstly that the authority suspending or cancelling a licence must himself record the reasons why the order had been passed and secondly that it should appear from the order that it was passed because it was necessary for the security of the public peace to do so.

8. If the letter dated the 1st March 1952, is the order of cancellation (It is not stated that there exists any other order) then on the face of it, neither the reasons have been recorded nor does it appear that it was passed because it was necessary for the security of the public peace to cancel the license.

9. The respondent however has filed an affidavit and says that the matter was considered by him and the Deputy Commissioner of Police then in charge and 'it was deemed necessary by us for the security of the public peace to cancel the license of the petitioner for the gun and the revolver for reasons recorded in writing in the file'. It is quite obvious that this statement is wholly inadequate since it does not say whether the reasons were recorded in writing by the respondent himself.

10. The learned Advocate General took a point that the section did not require such reasons to be communicated to the licence-holder. Iasked the file to be produced to satisfy myself whether the respondent had actually recorded the reasons himself but the learned Advocate General frankly confessed that he had himself not been able to see it and it could not be produced in court.

11. Whether it is the duty of the officer cancelling a license to communicate the reasons recorded to the license-holder, is a very difficult question. There is nothing in the section itself to say that the reasons recorded should be communicated. In my opinion, however, the following things are essential to make an order under Section 18 valid:

(1) The Officer, authority, magistrate or commissioner, cancelling or suspending the licence, must have reasons for which he deems it necessary for the security of the public peace to cancel or suspend such licence.

(2) The person cancelling or suspending the licence must himself record the reasons in writing:

(3) The order on the face of it should show

(a) that it was passed because it was necessary for the security of the public peace to cancel or suspend such license.

(b) that the reasons for thinking so have been recorded in writing by the person making the order.

I would not go to the extent of saying that the reasons must necessarily be communicated, but I think that the licence-holder whose licence has been cancelled or suspended has a right to know the reasons and if the order is challenged the Court has a right to look into it. Otherwise, I do not see the point in making it essential that reasons should be recorded in writing. If it is to be so recorded and kept back from the whole world, there is no point in recording it at all. The object in recording the reasons is obviously to give the licence-holder an opportunity of knowing why such an extreme step had been taken. It is not necessary to give reasons with the minutest details if such a course is not in the public interest. But the licence-holder is entitled to know broadly why his licence has been cancelled. If the reasons are entirely withheld, the licence-holder would never be able to establish a case of mala fides. Suppose in this case the respondent had cancelled the licence because of a frivolous reason or a reason which has not the slightest connection with security of the public peace. Such a cancellation could not stand for a moment. And yet, if the order of cancellation can be allowed to be as cryptic as in the present case, neither the licence-holder can challenge it, nor the court is in a position to say whether the order has complied with the provisions of law.

12. The order of cancellation in this case is plainly contained in the letter dated 1st March 1952, which says 'I hereby cancel'. This order does not show that it was passed because it was necessary for the security of the public peace to do so, nor does it say that any reasons exist for arriving at such a conclusion or that such reasons have been recorded in writing by the person cancelling the licence. It is stated in a subsequent affidavit that such reasons existed and were recorded in writing elsewhere, but not stated by whom. The order is plainly illegal and bad.

The learned Advocate General next says that even if the order be bad, no order should be made now because the period for which the original licence was valid having expired, the application has become infructuous. In any event, hesays that there has been inexcusable delay. It is true that it does not lie within the power of this Court to provide a fresh licence for the petitioner.

But I do not agree with the proposition that the petitioner is not entitled to any relief. If the order of cancellation stands, he is prejudiced in two ways. Firstly, there is the ignominy of a charge that the petitioner is guilty of something which is prejudicial to the security of public peace and secondly his chances of procuring a fresh licence are greatly prejudiced if the cancellation of his licence is allowed to remain. Whether he will in fact be able to procure one is not for this court to consider. It depends entirely upon the discretion of the respondent, exercised properly within the limits imposed by the provisions of the Indian Arms Act. As regards delay, I think that the petitioner was quite justified in moving the authorities before rushing to court. If the authorities had given an early refusal, it would have been all right. But even as late as November 1952, the matter was still under consideration and the final refusal came in the last week of April 1953. I do not think that there has been such a delay as to disentitle the petitioner from obtaining any relief.

13. The right order to make is the one, made in the Allahabad case mentioned above, namely, quashing the order of cancellation dated 1st March 1952.

14. I however make it clear that I give no direction whatsoever as to the issue of any fresh licence.

15. The rule is made absolute, and the order of cancellation dated the 1st March 1952 is quashed. I make no order as to costs.


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