Skip to content


Jadabendra Narayan Choudhury Vs. Commissioner, Jalpaiguri Divn. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 27(W) of 1965
Judge
Reported inAIR1969Cal539,1969CriLJ1364
ActsArms Act, 1878 - Sections 17(3), 22 and 22(1); ;Constitution of India - Article 226
AppellantJadabendra Narayan Choudhury
RespondentCommissioner, Jalpaiguri Divn. and ors.
Appellant AdvocateP.B. Barman and ;Ranjit Ghosh, Advs.
Respondent AdvocateNani Coomar Chakravorty and ;Murari Mohon Dutta, Advs.
DispositionPetition dismissed
Cases ReferredSardar Chanda Sing v. Commissioner Burdwan Division. While
Excerpt:
- .....ownership by the civil court. so, it seems to me clear that the district magistrate seized these firearms and suspended the two licenses as their ownership and possession were in dispute between the petitioner and the heirs of said asutosh choudhury.on appeal the commissioner took the same view and upheld both the orders of seizure and suspension with certain modification with which i am not concerned in the present rule. the relevant portion of this order is as follows:'with regard to the other weapons the learned district magistrate is quite correct where he has directed the appellant in his order dated 19-6-63 to establish his right to the other guns and that the guns in question should not be returned until an appropriate court of law had decided the ownership. it is not correct to.....
Judgment:
ORDER

A.K. Sinha, J.

1. In this Rule the petitioner prays for quashing certain orders of the District Magistrate, Malda the respondent No. 2, for seizure of several guns and sus pension of several licenses and also order passed by the respondent No. 1 on appeal in this connection. Briefly, the facts are:--

2. The petitioner belongs to ancient Zamindar family of a place known as 'English Bazar' in the district of Malda. His ancestors possessed quite a large number of guns and also several pistols. In 1957 the petitioner was granted 3 licenses Nos. 5067, 5068 and 5069 for possession of some of those guns and pistols. The license Nos. 5067 and 5068 which are the subject matter of the present rule covered 4 and 6 guns including 2 pistols respectively (hereinafter referred to as the Fire Arms). These fire arms were owned and possessed by the petitioner's father Jadunandan Choudhury along with his cousin brother Asutosh during their life time. The license stood in the name of the petitioner's father Apart from this Asutosh Choudhury also held separate license for several other guns. It is alleged that during the life time of the petitioner's father a partition suit being No. 30 of 1952 in the Court of the Subordinate Judge, Malda which was filed is still pending but these fire arms are not included.

3. After the death of the petitioner's father, the petitioner obtained the said two licenses in his own name and possessed these fire-arms along with Asutosh Choudhury during his life time and they were kept in the 'Ejmali Kutchery'.

4. On or about 4th March, 1963 Ashutosh Choudhury died. Thereafter, the fire-arms covered by those two licenses 5067 and 5068 were seized by the Police from the Ejmali Kutchery. The petitioner made several representations before the District Magistrate, Malda who ultimately by his order dated 23rd May, 1963 refused to return the guns until the question of ownership was decided by the Civil Court and suspended these two licenses covering these guns till the final decision of such Court.

5. As against the aforesaid order of the District Magistrate the petitioner preferred an appeal before the respondent No. 1, the Commissioner who by his order dated 12-7-65 directed the release of the two guns covered by a license and affirmed the rest of the decision passed by the District Magistrate in respect of the other fire-arms and those two licenses covering them. That is how the petitioner felt aggrieved and obtained the present Rule.

6. Upon these facts the question that arises is whether the District Magistrate exceeded his power in seizing the fire-arms in question and suspending these two licenses of the petitioner under the Indian Arms Act, 1959 (hereinafter referred to as the Act). It appears that the disputed fire-arms were seized after the death of said Asutosh Choudhury. Thereafter, the petitioner made an application for their return whereupon he was asked by the District Magistrate to state if those properties were 'Ejmali' (joint) properties and to submit a joint petition specifically mentioning the person to whom they should be returned. The petitioner, accordingly, submitted an application for return of those fire-arms to him. His specific case was that as a licensee he was under the law entitled to retain these fire-arms irrespective of the question of joint ownership and possession. Upon this application the District Magistrate refused to return these fire-arms and suspended those two licenses till the final determination as to their ownership by the civil Court. So, it seems to me clear that the District Magistrate seized these firearms and suspended the two licenses as their ownership and possession were in dispute between the petitioner and the heirs of said Asutosh Choudhury.

On appeal the Commissioner took the same view and upheld both the orders of seizure and suspension with certain modification with which I am not concerned in the present Rule. The relevant portion of this order is as follows:

'With regard to the other weapons the learned District Magistrate is quite correct where he has directed the appellant in his order dated 19-6-63 to establish his right to the other guns and that the guns in question should not be returned until an appropriate Court of law had decided the ownership. It is not correct to say as has been stated by the appellant that the determination of the question of ownership is not a valid consideration under the Arms Act. It certainly is and that the District Magistrate has certainly powers to suspend the license or to hold the license in abeyance pending the outcome of such a decision of the Civil Court in the matter of a dispute,'

7. The material part of the provisions for search and seizure by Magistrate as contained in Section 22 of the Act provides:

'(1) Whenever any Magistrate has reason to believe--

(a) that any person residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose, or

(b) that such person cannot be left In the possession of any arms or ammunition without danger to the public peace or safety, the magistrate may, after having recorded the reasons for his belief, cause a search to be made of the house or premises occupied by such person or in which the magistrate has reason to believe that such arms or ammunition are or is to be found and may have such arms or ammunition, if any, seized and detain the same in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the time being in force to have the same in his possession'.

8. From the above provisions It follows that a very wide power has been conferred upon the magistrate to search and seize fire arms if according to him there is danger to public peace or safety., It cannot be said that in the facts and circumstances of the present case there could not be any danger to public peace or safety if the petitioner was allowed to retain the possession of those fire-arms. For, on the death of Asutosh Choudhury there seems to be a scramble for ownership and possession between his heirs and the petitioner over these fire-arms. In the affidavit-in-opposition on behalf of the respondents it was stated that the heirs of Asutosh Choudhury made application before the District Magistrate for making over possession of these fire-arms to them on granting separate licenses. This fact is not disputed by the petitioner. So, it cannot be said that there was no material before the District Magistrate to come to his own conclusion justifying the seizure. In my view, therefore, the orders of seizure of the fire arms were rightly made by the District Magistrate on reasons contemplated in the said provision of the Act.

9. So far as the question of suspension of license is concerned, the relevant provisions art; contained in Section 17 of the Act. The material part of which provides:

(3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a license, --

fa) if the licensing authority is satisfied that the holder of the license 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'.

10. It would appear from the above provisions that the licensing authority has been given extensive power to suspend the licence under the Act if amongst other things the person is deemed to be unfit for any reason for a licence under the Act or if the licensing authority deems it necessary for security of the public peace or for public safety to suspend or revoke the licence. In the instant case, for the reasons already indicated, the possibility either of unfitness of the petitioner to hold licenses or of the insecurity of public peace or public safety cannot be ruled out. The Commissioner observed, I think rightly, that the determination of the question of ownership was a valid consideration under the Act and until the decision of the Civil Court was forthcoming, the District Magistrate has power to suspend the license or keep the license in abeyance.

11. Mr. Burman on behalf of the petitioner contended that the question as to the ownership and possession of the firearms was wholly irrelevant and extraneous. The petitioner was the licensee of these fire-arms. The licensing authority had no power to suspend the license merely because the ownership of these fire-arms was being disputed. I cannot agree. There is no doubt that a license can be granted of a fire-arms to a person only. if he is the rightful owner and is in ex elusive possession of the fire-arms. In other words, the person in order to be eligible for holding a license must have absolute control over the fire-arms in question. The moment the licensee loses such control over the fire-arms both as regards the ownership and possession the above provisions of the Act would be applicable and the licensing authority may in its discretion suspend or revoke the license.

12. This apart the law itself ha' clothed the lisensing authority with enough power to suspend or revoke license if the licensee becomes unfit for a license for any reason. So what is required of such authority before suspension of license is to assign reason. The licensing authority and the Commissioner have given such reasons. It is not for this Court exercising power in writ jurisdiction to go into the question of adequacy or sufficiency or to examine the correctness of such reasons unless they are shown to be a mala fide exercise of the power or otherwise perverse. This view finds support in a decision of this Court reported in : AIR1958Cal420 Sardar Chanda Sing v. Commissioner Burdwan Division. While dealing with identical question in different set of circumstances under the old Act (Indian Arms Act. 1873) P. B. Mukharji. J. observed inter alia (at p. 529 of Cal WN) = (at p. 422 of AIR):

'The reasons stated are of safety and desirability. In any event, this order is not the final order because the petitioner appealed to the Divisional Commissioner as provided by Rule 41A of the Indian Arms Rules. 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 whether such reasons are right or wrong is not for this Court to examine under Article 226 of the Constitution, unless they are perverse or mala fide.'

There has been no material change in this respect in the later enactment. It is to be noticed that no case of mala fide or perverseness has been made out either.

13. That being so, it cannot be held that the orders of suspension of those two licenses passed by the respondents Nos. 1 and 2 are invalid.

14. The result is, the petition fails. The Rule is discharged. But there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //