THE HON'BLE SRI JUSTICE G.CHANDRAIAH
W.P.NO.10113 OF 2008 and 836 of 2010
25.07.2012
SMT. KAUSER KHAN
GOVERNMENT OF ANDHRA PRADESH, REPRESENTED BY ITS PRINCIPAL SECRETARY, HOME
DEPARTMENT AND TWO OTHERS.
Counsel for the petitioner: SRI NASIR AHMED KHAN
Counsel for the respondents: G.P. FOR HOME
?Cases Referred:
1. 2010(4) ALT 377
:COMMON ORDER
As parties in both the writ petitions are one and the same and the issue is
connected, they are being disposed of by this common order.
2. The petitioner in both the writ petitions is one Smt. Kauser Khan. The case
of the petitioner is that herself and her family members, including her husband,
are involved in business and that her husband moves globally for business
purposes. For self protection and security, she requires weapon and accordingly
based on her application, the licensing authority granted licence bearing
no.112/24 dated 28.3.1983, re-registered as 971/Banjara Hills for possessing (1)
.25 NPB pistol and (2) .22 NPB Rifle, which licence was renewed up to 28.3.2007.
A theft took place when she was residing at H.No.8-2-684/3/R, Road No.12,
Banjara Hills, Hyderabad on 14.11.2002 and in the said theft, her N.P. Bore
pistol was stolen. Therefore, she made a complaint in FIR No.741/2002 dated
14.11.2002 and eventually, the criminal case was closed as "undetected" before
the V Metropolitan Magistrate Court, Hyderabad. Her further case is that she is
running an engineering college at Chevella, Rangareddy District and travels
carrying huge amounts at the time of admissions and during payment of salaries
to the staff and that usually her return journey will be at late evenings and
hence she being a lady, for self-protection, made application on 23.1.2006 to
the 3rd respondent - Deputy Commissioner of Police, West Zone, Hyderabad, to
grant permission to purchase an identical pistol, which was lost in the theft
committed in her house on 14.11.2002. The 2nd respondent - Commissioner of
Police, by order in proceedings No.HW-3/Arms/971 - Banjara Hills/06 dated
11.10.2006, rejected the request of the petitioner for purchase of second weapon
and cancelled the Arms Licence no.971/Banjara Hills and permitted the petitioner
to sell the existing weapon to an authorized arms dealer and intimate the same
to the authority. Aggrieved by the same, the petitioner preferred appeal before
the 1st respondent - Government and by proceedings in Memo No.31508/Arms/2006
dated 12.2.2007, the Principal Secretary to Government, rejected the appeal.
Aggrieved by the same, she filed writ petition before this court in
W.P.No.10113/2008. By interim order dated 1.5.2008 in WPMP.No.13294/2008 in
W.P.No.10113/2008, taking into consideration the submission of the learned
counsel for the petitioner that the petitioner's arms licence expired and that
she may be given liberty to file an application for its renewal; this court
permitted the petitioner to file an application for renewal of Arms Licence
before the licencing authority and directed the said authority to dispose of the
same in accordance with law. Pursuant to the said interim direction of this
court, the 2nd respondent - Commissioner of Police, by proceedings No.HW-
3/Arms/9/1Banjara Hills, dated 17.6.2008 rejected the application of the
petitioner to renew the Arms Licence. Aggrieved by the same, the petitioner
filed the subsequent writ petition in W.P.No.836/2010.
3. Thus, aggrieved by the orders of the respondents in rejecting the permission
to the petitioner to purchase the lost weapon and in canceling the Arms Licence
and in rejecting the application of the petitioner for renewing the Arms
Licence, the present writ petitions are filed.
4. The 3rd respondent - Deputy Commissioner of Police, filed counter affidavit
in W.P.No.10113/2008 and denied the averments made by the petitioner in the writ
affidavit and sought for dismissal of the writ petition.
5. The learned counsel appearing for the petitioner submitted that the
petitioner was having Arms Licence No.971/Banjara Hills, covering (1) .25 NPB
Pistol and (2).22 NPB Rifle, which is renewed up to 28.3.2007 and in a theft
that took place in her house on 14.11.2002, .25 NPB pistol was lost and
eventually the criminal case filed in that regard, ended in closure based on the
'undetected' report filed by the police. He contended that in the initial order
dated 11.10.2006 of the primary authority - 2nd respondent- Commissioner of
Police, the request of the petitioner for purchase of lost weapon was rejected
on the grounds that she is not in a position to ensure safe custody of the
weapon and that she is without second weapon since 2002 and that the weapon
already available should be sufficient for the purpose for which it was granted.
But the licencing authority eventually cancelled the Arms Licence. He contended
that at one breathe he hold that the second weapon would be sufficient for which
it was granted and on the contrary, cancels the Arms Licence permission itself.
He contends that the request is made for granting permission to purchase lost
weapon and in the order of rejection, the primary authority at one stage holds
that second weapon would be sufficient and in a self contradicting manner,
cancels the permission. He contended that the 2nd respondent - Commissioner of
Police, has not considered the averments made by the petitioner, while rejecting
the permission. The appellate authority - 1st Government, in a mechanical
manner, without application of mind, confirmed the order of the 2nd respondent.
He submitted that Section 13 of The Arms Act, 1959 (for short 'the Act') speaks
about the grant of licence and Section 17 deals with the variations, suspension
and revocation of licence and the said provisions prescribes the procedure. But
the respondents without adhering to the said procedure and in violation of the
principals of natural justice and without assigning any reasons and without
considering the grievance of the petitioner and the facts and circumstances
narrated by her, cancelled the permission granted to the petitioner and the same
is arbitrary and illegal. He contended that this court taking into consideration
the fact that the licence of the petitioner has expired, permitted the
petitioner to make an application for renewal and directed the authority to
dispose of the same in accordance with law. In the impugned order dated
17.6.2008, the 2nd respondent - Commissioner of Police, relying on the report of
Inspector of Police P.S. Banjara Hills, which stated that there is no specific
threat to the petitioner from any individual or group; rejected the application
of the petitioner. He contended that the averments of the petitioner with regard
to her self protection, stated by her in the application, were not considered
and no notice was issued and in violation of principles of natural justice, the
application for renewal was rejected and hence the same needs to be set aside.
With these contentions, the learned counsel for the petitioner sought to set
aside the impugned orders and allow the writ petitions.
6. On the other hand, the learned Government Pleader appearing for Home,
submitted that the authorities found that the petitioner is not in a position to
ensure safe custody of weapon and that as per the report of the Inspector of
Police, Police Station, Banjara Hills, the petitioner is not having any specific
threat from any individual or group and hence the authorities considering the
entire material on record and after complying with the principles of natural
justice, cancelled the Arms Licence granted to the petitioner and the
discretionary orders passed by the authorities cannot be interfered with by this
court and sought for dismissal of the writ petitions.
7. In order to decide the validity of the impugned orders, it is necessary to
first note the relevant provisions of the Act under Sections 13 and 17 in
Chapter III, which deals with grant of licences and its revocation. The said
provisions, to the extent relevant, are extracted as under:
13. Grant of licences-
(1) An application for the grant of 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.
(2) 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.
(2A) the licensing authority, after such inquiry, if any, as it may consider
necessary, 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:
Provided that where the officer in charge of the nearest police station does not
send his report on the application within the prescribed time, the licensing
authority may, if it deems fit, make such order, after the expiry of the
prescribed time, without further waiting for that report.
(3) the licensing authority shall grant -
(a) a licence under Section 3 where the licence is required
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not
less than twenty inches in length to be used for protection or sport or in
respect of a muzzle loading gun to be used for bona fide crop protection;
Provided that where having regard to the circumstances of any case, the
licensing authority is satisfied that a muzzle loading gun will not be
sufficient for crop protection, the licensing authority may grant a licence in
respect of any other smoother bore gun as aforesaid for such protection; or
(ii) in respect of a point 22 bore rifle or an air rifle to be used for target
practice by a member of a rifle club or rifle association licensed or recognized
by the Central Government;
(b) a license under section 3 in any other case or a licence under section 4,
section 5, section 6, section 10 or section 12, if the licensing authority is
satisfied that the person by whom the licence is required has a good reason for
obtaining the same.
14. Refusal of licence- (1) Notwithstanding anything in section 13, licenceing
authority shall refuse to grant-
(a) a licence under section 3, section 4 or section 5 where such licence is
required in respect of any prohibited arms or prohibited ammunition;
(b) a licence in any other case under Chapter II,--
(i) where such licence is required by a person whom the licensing authority has
reason to believe -
(1) to be 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
(2) to be of unsound mind, or
(3) to be for any reason unfit for a licence under this Act, or
(ii) where the licensing authority deems it necessary for the security of the
public peace or for public safety to refuse to grant such licence".
(2) The licencing authority shall not refuse to grant any licence to any person
merely on the ground that such person does not own or possess sufficient
property.
(3) Whether the licensing authority refuses to grant a licence to any person it
shall record in writing the reasons for such refusal and furnish to that person
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.
17. Variation, suspension and revocation of licences:
(3) The licensing authority may by order in writing suspend a licence for such
period as it fit or revoke a licence;
(a) if the licensing authority is satisfied that the holder of the licence is
prohibition by this Act or 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 sub-
section (1) requiring him to deliver-up the licence.
(4) the licensing authority may also revoke a licence on the application of the
holder thereof.
(5) 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.
8. A reading of the above provisions makes it clear that under Section 13
(3)(a)(i), the licencing authority in accordance with the procedure prescribed
under that section, shall grant licence to a citizen of India for use of
protection or sport or in respect of protection of crop. Section 14 deals with
refusal of licence and under Section 17, such licence granted under Section 13,
can be varied, suspended and revoked.
9. In the present case, the licence is revoked. It is to be conspicuously
noticed that the grounds mentioned under Section 14(b)(i) for refusal of
licence, are similar to the grounds under Section 17(3)(a) for revocation of
licence. As per the circumstances enumerated under sub section (3) of Section
17, the licence can revoke if the licencing authority is satisfied that the
holder of licence is prohibited by the Act or any other law for the time being
in force from acquiring, having in his possession or carrying any arms or
ammunitions; or if of unsound mind; or is for any reason unfit for a licence
under the act; for the security of the public peace or for public safety; if the
licence is obtained by suppressing material information; if any conditions of
licence has been contravened and; if the licence holder fails to comply with the
notice requiring him to deliver up the licence. Under sub section 5 of section
17, the licencing authority revoking the licence under sub section 3, shall
record in writing the reasons therefor and furnish to the holder of the licence
on demand a brief statement of the same, unless the authority is of the opinion
that it will not be in the public interest to furnish such statement. In other
words, the licence granted under Section 13 (3)(a)(i) for protection of a
citizen of India, can be revoked under Section 17 (3), after satisfying with the
circumstances enumerated under the said sub section and pass an order in writing
by recording reasons and furnish the same to the licence holder, if the
furnishing of such order does not prejudice the public interest.
10. In the light of the above provision, it is expedient to examine whether the
2nd respondent who revoked the licence, has conformed to the statutory
provisions extracted above.
11. The case of the petitioner is that she is running an engineering college
and would be carrying huge amounts during admissions and while paying salaries
to the staff and usually traveling in the late evenings and that husband and
family members are involved in business and for protection, she requires licence
under Act to possess weapon enumerated under Section 13 of the Act. It is not in
dispute that she was granted Arms Licence No.971/Banjara Hills for possession
(1) .25 NPB Pistol and (2) .22 NPB Rifle, which is renewed up to 28.3.2007. On
the ground that in a theft that took place in her house on 14.11.2002, .25 NPB,
was lost, she filed FIR and eventually the said case ended in closure based on
the report of the police as 'undetected'. Subsequently, she made application for
grant of permission to purchase another weapon in the place of .25 NPB. By
proceedings dated 11.10.2006, the Commissioner of Police rejected the said
application. The relevant portion of the order is extracted as under for better
appreciation:
"Smt. Kauser Khan, holder of Arms Lience No.971/Banjara Hills covered by 1).25
NPB Pistol, 2) .22 NPB Rifle, renewed upto 28.3.2007 and you submitted an
application stating that you have lost your weapon i.e., .25 NPB Pistol from
your house. Further, you have applied for according permission to purchase
another weapon as replacement in the place of lost weapon. The case with respect
to loss of weapon vide Cr.No.741/2002 of Banjara Hills Police Station has been
referred as UN. It is evident that you are not in a position to ensure safe
custody of your weapon. You are without the second weapon since 2002. The weapon
already available should be sufficient for the purpose for it which granted.
Considering the facts and circumstances as a whole the request for purchase of
second weapon is rejected.
Accordingly, your Arms Licence No.971/Banjara Hills is cancelled with a
permission to sell the existing weapon i.e., .22 NPB Rifle to any authorized
dealer or to any valid Arms Licence holder and intimate the date of sale of your
weapon to this office."
12. The above order shows that the petitioner pleaded before the licencing
authority that the weapon was lost due to the theft committed in her house and
the authority came to the conclusion that the petitioner is not in a position to
ensure safe custody of her weapon. Further, the authority holds that the weapon
already available should be sufficient for protection and in the immediate
paragraph, he cancels the Arms Licence. The licencing authority shall come to
the conclusion that the licence holder is unfit to hold a licence in view of the
circumstances enumerated under sub section (3) of Section 17. The said
circumstances for revoking the licence, which are already extracted above, are
not forthcoming in the order of the 2nd respondent - Commissioner of police
dated 11.10.2006. The 1st respondent - appellate authority in the proceedings
dated 12.2.2007, has not recorded any independent reasons in conformity with
Section 17(3) for rejecting the request of the petitioner and for confirming
order of the 2nd respondent dated 11.10.2006. The operative portion of the
order of the 1st respondent reads thus:
"4. The appellate authority heard the contentions of the applicant and after
careful examination opined that no valid and fresh grounds have been put forth
by the appellant before the Appellate Authority other than those raised before
the Commissioner of Police, Hyderabad before he passed orders in the reference 1
cited and hence Government upholds the decision of the Commissioner of Police,
Hyderabad and hereby reject the appeal of the Appellant."
13. As noted above, the licencing authority, shall categorically record cogent
and convincing reasons enumerated under sub section (3) of Section 17 for
revoking the licence. No reasons were recorded either by the primary or the
appellate authority by considering the averments made by the petitioner in the
application and passed orders in a cryptic manner. Further the averments of the
petitioner that she is running an Engineering college and has to carry huge
amounts for payment of salaries and during admissions and that she travels in
the late evening and that she being a lady needs protection; have not been
denied. Therefore, in the light of these facts and circumstances, the impugned
rejection amounts to violation of the principles of the natural justice.
14. Pursuant to the interim order of this court dated 1.5.2008 the petitioner
made application for renewal and by impugned order dated 17.6.2008 in
W.P.No.836/2010 the 2nd respondent rejected the said application. A perusal of
the said order also shows that the averments of the petitioner were not
considered and the licencing authority relied on the report of the Inspector of
Police, which stated that there is no specific threat to the petitioner from any
individual or group and there is also no material to show that any opportunity
was given to the petitioner.
15. In the judgment relied on by the counsel for the petitioner in SYED AFZAL
MEHDI v. STATE OF A.P.1 , the learned Single Judge of this court while dealing
with rejection of application of the petitioner therein for grant of arms
licence under Section 13, held that a citizen is entitled as of right for an
arms licence, if his case falls under Section 13(3)(a)(i) subject to his
satisfying that his case does not fall under Section 14(1)(b), that two separate
grounds for refusal are (1) where licensing authority has reason to believe that
the person who required licence is unfit for a licence or (2) where the
licensing authority deems it necessary for security of public peace or public
safety. While not accepting the reasons given by the authority for refusal of
licence, this court held as under:
It is thus, indubitable that the right of a citizen to protect himself, his
family and property are integral part of right to life guaranteed by Article 21
of the Constitution, subject to the limitations contained therein. In asserting
such a right, every citizen has a right to apply for an arms licence. While
considering such application, the licensing authority shall not only keep in
view the statutory provisions of the Act, but also the constitutional parameters
relating to the applicant's fundamental right to life.
Undoubtedly, it is imperative for the State to ensure that possession of
arms by the people under licences is not misused for unlawful purposes. The
licensing authority should therefore be conceded with the power and discretion
to prevent such misuse by making a strict scrutiny of the antecedents of the
applicant and the potential for misuse of arms. But, in this process it is not
permissible for the authority to be subjective in its assessment of existence of
reasons for grant of a licence. A law abiding citizen would always like to have
a fire arm for a bona fide purpose, for, he is aware of the consequences of its
misuse. Therefore, test to be applied by the licensing authority in considering
grant of arms licence is whether the applicant has established his credentials
as a law abiding person leading a peaceful life without any criminal record and
whether any circumstances exist by which it can be reasonably presumed that
there is a potential danger of misuse of the weapon leading to breach of peace
and safety of the society. Once these two tests are satisfied an application
for grant of licence shall not ordinarily be rejected.
In Ganesh Chandra Bhatt (1993 Allahabad, 291), Markandey Katju, J., (as he
then was), traced the legislative history of the Act and the purposes for which
it was made in the light of Article 21 of the Constitution and held that "it
must be held that the normal rule should be grant of the arms licence, and
refusal on the ground of unfitness should only be for very strong reasons e.g.
involvement in a heinous crime".
Unless the licensing authority is satisfied that any of the grounds
mentioned in Section 14(1)(b) exists, an application for grant of an arms
licence shall not be refused on a vague ground such as absence of genuine need.
16. In the above judgment the learned single Judge while dealing with the case
of the petitioner therein with regard to refusal for grant of licence, taking
into consideration the law laid in the judgment of the High Court of Allahabad
that the normal rule should be grant of the arms licence and refusal on the
ground of unfitness should only be for very strong reasons e.g., involvement in
a heinous crime; held that unless the licensing authority is satisfied that any
of the grounds mentioned in Section 14(1)(b) exists, an application for grant of
an arms licence shall not be refused on a vague ground such as absence of
genuine need. In the present case, the licencing authority revoked the licence
of the petitioner. As already noticed above, the grounds mentioned under
Section 14(b)(i) for refusal of licence, are similar to the grounds under
Section 17(3)(a) for revocation of licence. The licensing authority while
revoking the licence has not satisfied that any of the grounds mentioned under
Section 17(3) exists and no reasons were recorded.
17. For the foregoing reasons, the impugned orders in the writ petitions are
set aside and the 2nd respondent - Commissioner shall consider the application
of the petitioner afresh and pass appropriate orders in accordance with law
within a period of four weeks from the date of receipt of a copy of this order.
18. The writ petitions are accordingly disposed of. No costs.
---------------------------------
G.CHANDRAIAH,J
DATE: 25-07-2012
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