# Mohd. Shahid v. State of U.P. & Ors

- **Citation:** (2016) 3 ILRA 394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-04
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-shahid-v-state-of-u-p-ors-43432
- **Pages:** 6

## Headnote

Firearms Licence -- Cancellation -- Power under Section 17 of Arms Act, 1959 -- Jurisdiction and
Procedural Requirements -- The petitioner's firearms licence was cancelled by the District Magistrate
on the basis of an unnamed First Information Report and a vague police report without any concrete
material demonstrating misuse of the firearm. The District Magistrate, while exercising his powers
under Section 17(3)(b) and (d) of the Arms Act, failed to independently apply his mind to the
petitioner's reply and the attending circumstances. Held, the cancellation order suffered from a
fundamental defect inasmuch as it was not based on any material evidence substantiating the breach
of public peace or safety. The Licensing Authority is obliged to exercise the power of cancellation
judiciously and not in an arbitrary manner, treating police reports as sacrosanct without independent
application of mind. (Paras 8, 9, 10)
Natural Justice -- Principles of -- The Licensing Authority, before cancelling a firearms licence, must
consider the reply filed by the licence-holder, weigh it against the police report, and arrive at an
independent opinion. A mechanical or routine cancellation without such consideration violates
principles of natural justice and sound administrative practice. (Paras 7, 8, 9)
Firearms Licence -- Right to Possess Arms -- Article 21 of Constitution -- While the right to possess
firearms is a statutory right granted for personal safety, its cancellation must be grounded in cogent
evidence and must comply with the strict construction of Section 17 of the Arms Act. The provisions
cannot be invoked lightly or in an arbitrary manner. (Paras 6, 7)
Appellate Review -- Duty of Appellate Authority -- The appellate authority is duty-bound to
independently consider the grounds of appeal and apply its own mind to the matter, rather than
merely endorsing the findings of the lower authority without detailed analysis. (Para 9)

Writ Petition Allowed -- Cancellation orders quashed.

List of Cases cited:

## Text

394 INDIAN LAW REPORTS ALLAHABAD SERIES
objectively disclosed by the opposite party, could an order contemplated by clause (f) of
sub-section 1 of Section 10 of the Act be passed, therefore, a daughter-in-law, estranged
from her husband living with a mother-in-law, in premises owned by the latter, falls within a
"domestic relationship". The obligation not to disturb the right to residence in the shared
household would continue even if the mother- in-law does not have any right, title or
interest, but is a tenant, or entitled to "equity". The right of the aggrieved person is not
dependent on title, but the mere factum of residence. In case the mother in law is the owner,
the obligation to allow the daughter-in-law to live in the shared household, as long as, the
matrimonial relationship between her and the husband subsists, continues. The only
exception is the proviso to 19(1)(b), which exempts women from being directed to remove
themselves from the shared household. Thus, excluding the right of residence against
properties where the husband has no right, share, interest or title, would severely curtail the
extent of the usefulness of the right to residence. (Reference may be made to Smt. Preeti
Satija v. Smt. Raj Kumari and another AIR 2014 Delhi 46; Nishant Sharma and others
v. State of U.P. and others 2012 (6) ADJ 759; Eveneet Singh v. Prashant Chaudhri and
others 177(2011)DLT124; and Shima v. Navas 2015 (1) KLJ 749.)

7. Having due regard to the facts and circumstances of the case, this Court in exercise
of its supervisory jurisdiction under Article 227 of the Constitution declines to interfere with
the impugned order dated 11 January 2016 passed in Criminal Appeal No. 117 of 2014
(Tushar Singh vs. Smt. Neetu Rana). However, it is provided that the court of first instance
shall grant opportunity and hear the matter afresh without being influenced by the
observations made on merit and law in the impugned order. Pending decision, residence of
the applicant in House No. GM-1, Building No. 4, Meenal Apartment, Shalimar Garden
Extension-II, Shahibabad, Ghaziabad shall continue and the respondents are restrained from
interfering with the residence of the applicant.

8. With the aforesaid observation, the petition is finally disposed of.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2015

BEFORE

THE HON'BLE RAN VIJAI SINGH, J.

Writ C No.- 49810 of 2015

Mohd. Shahid. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohd. Umar Khan

Counsel for the Respondents:
3 All. Mohd. Shahid. Vs State Of U.P. & Ors.
395

C.S.C.

Firearms Licence -- Cancellation -- Power under Section 17 of Arms Act, 1959 -- Jurisdiction and
Procedural Requirements -- The petitioner's firearms licence was cancelled by the District Magistrate
on the basis of an unnamed First Information Report and a vague police report without any concrete
material demonstrating misuse of the firearm. The District Magistrate, while exercising his powers
under Section 17(3)(b) and (d) of the Arms Act, failed to independently apply his mind to the
petitioner's reply and the attending circumstances. Held, the cancellation order suffered from a
fundamental defect inasmuch as it was not based on any material evidence substantiating the breach
of public peace or safety. The Licensing Authority is obliged to exercise the power of cancellation
judiciously and not in an arbitrary manner, treating police reports as sacrosanct without independent
application of mind. (Paras 8, 9, 10)
Natural Justice -- Principles of -- The Licensing Authority, before cancelling a firearms licence, must
consider the reply filed by the licence-holder, weigh it against the police report, and arrive at an
independent opinion. A mechanical or routine cancellation without such consideration violates
principles of natural justice and sound administrative practice. (Paras 7, 8, 9)
Firearms Licence -- Right to Possess Arms -- Article 21 of Constitution -- While the right to possess
firearms is a statutory right granted for personal safety, its cancellation must be grounded in cogent
evidence and must comply with the strict construction of Section 17 of the Arms Act. The provisions
cannot be invoked lightly or in an arbitrary manner. (Paras 6, 7)
Appellate Review -- Duty of Appellate Authority -- The appellate authority is duty-bound to
independently consider the grounds of appeal and apply its own mind to the matter, rather than
merely endorsing the findings of the lower authority without detailed analysis. (Para 9)

Writ Petition Allowed -- Cancellation orders quashed.

List of Cases cited:

1. Satish Singh Vs. District Magistrate, Sultanpur, 2009 (4) ADJ 33 (LB)

2. Haseeb Ahmed @ Rassu Vs. The Commissioner, Kanpur Mandal and Others, 2012 (10) ADJ 27

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Mohd. Umar Khan, learned counsel for the petitioner and the learned
standing counsel for the respondents.

2. Through this writ petition the petitioner has prayed for issuing a writ of certiorari
quashing the order dated 5.2.2015 passed by the District Magistrate, Shamli and the order
dated 28.5.2015 passed by the Commissioner, Saharanpur Division, Saharanpur.

3. Vide order dated 5.2.2015 the petitioner's fire arm licence was cancelled by the
District Magistrate while deciding Case No. 7/2012-13 (State vs. Shahid) whereas by the
subsequent order dated 28.5.2015 the Commissioner, Saharanpur Division Saharanpur has
396 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed the appeal No. 02 of 2015 C2015090000228 (Shahid vs. State) filed by the
petitioner against the order of cancellation order dated 5.2.2015.

4. While assailing the impugned orders, learned counsel for the petitioner contends that
the petitioner's fire arm licence has been cancelled on vague ground only on the basis of the
police report without any concrete material to show that the petitioner has ever opened fire
from his revolver or misused the fire arm, therefore, the impugned orders cannot be
sustained in the eye of law.

5. The facts giving rise to the present case are that the petitioner is a licence holder of
Fire Arm Licence No. 4872 (Revolver). Against him a show cause notice was issued on
18.2.2013 requiring the petitioner to file his reply to the report submitted by the Station
Officer, P.S. Kotwali, district Shamli. Show cause notice dated 18.2.2013 is not on record.
However, the petitioner has annexed another notice issued to him on 14.6.2014 by the Sub
Divisional Magistrate, Shamli. The petitioner has filed reply to the show cause notice
denying the allegations made in the show cause notice. Since the notice has not been
annexed with the writ petition and the District Magistrate, Shamli, in his order dated
5.2.2015, has not discussed the contents of the notice, therefore, the reason for issuing show
cause notice can only be gathered from the petitioner's reply and the observations made by
the District Magistrate in his order. From the perusal of which, it transpires that in the
Panchayat election on 12.3.2013, the petitioner had opened fire amongst public by showing
his anger/anguish. The date on which he opened fire, section 144 of the Cr.P.C. was in force
and in this way, the petitioner has misused his firearm. In the reply, the petitioner has denied
the allegations of opening fire. The First Information Report was lodged by the respondent,
being case crime no. 23/13 under section 188 Cr.P.C. (State Vs. Manish). It is stated that the
petitioner is an employee in V.V. Inter College, Shamli and resides in Village Gulshan
Nagar, Shamli, therefore, there was no occasion for him to open fire.

6. Considering the contends of the show cause notice and the petitioner's reply, the
District Magistrate, vide order dated 5.2.2015, cancelled the petitioner's firearm licence on
the ground that the petitioner is a man of ill-repute and since he has misused his firearm,
therefore, in the public interest, it would not be proper to continue his firearm licence.

7. Aggrieved by the aforesaid order, the petitioner filed Appeal No. 02 of 2015/C2015090000228 (Shahid Vs. State of U.P.). The appeal too has been dismissed by the
Divisional Commissioner.

8. It is submitted by the learned counsel for the petitioner that on the vague assertions,
without there being any plausible reason, the petitioner's firearm licence has been cancelled,
which cannot be sustained in the eyes of law.

9. Refuting the submissions of learned counsel for the petitioner, learned standing
counsel submits that since the petitioner has opened fire on the eve of the election in the
3 All. Mohd. Shahid. Vs State Of U.P. & Ors.
397
midst of public and terrorized the atmosphere, therefore, no infirmity can be attached to the
impugned orders passed by the District Magistrate as well as the Divisional Commissioner.

10. I have heard learned counsel for the parties and perused the records.

11. For appreciation, it would be necessary to go through the relevant provisions, under
which firearm licence can be suspended / cancelled. Section 17 of the Arms Act deals with
eventualities under which fire arm can be cancelled, which is reproduced hereinunder:

"17. Variation, suspension and revocation of licences.- (1) The licensing
authority may vary the conditions subject to which a licence has been granted except such of
them as have been prescribed and may for that purpose require the licence holder by notice
in writing to deliver-up the licence to it within such time as may specified in the notice.

(2) The licensing authority may, on the application of the holder of a licence, also
vary the conditions of the licence except such of them as have been prescribed.

(3) The licensing authority may by order 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 sub-section
(1) requiring him to deliver-up the licence."

12. From the perusal of the aforesaid provisions, it appears that the power has been
exercised by the District Magistrate vested in him under sub-clauses (b) & (d) of sub-section
(3) of section 17, i.e., for the reason to secure public peace and public safety and breach of
conditions of firearm licence. Undoubtedly, if a firearm licencee in any way, disturbs the
public peace and safety and breaches the conditions of firearm licence, the Licensing
Authority may exercise his/her power and suspend/cancel the firearm licence, but the
question would be on what parameters, satisfaction with regard to the breach of public peace
and public safety and breach of conditions of firearm licence can be accorded or arrived at?
398 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Here in this case, as would appear from the impugned order passed by the District
Magistrate, Shamli, the police report contains that the petitioner has opened fire and
terrorized the atmosphere while section 144 of the Cr.P.C. was in force. A First Information
Report, to that extent, was also lodged, but the petitioner, in his reply, has stated that the
First Information Report is unnamed. The District Magistrate, while passing the impugned
order dated 5.2.2015, has no where recorded that in the First Information Report, petitioner
is named and he has misused the firearm. Undoubtedly, the Licensing Authority is vested
with the power of suspension / cancellation of the firearm licence, but the power has to be
exercised in a judicious manner.

14. A Division Bench of this Court in the case of Satish Singh Vs. District Magistrate,
Sultanpur, 2009 (4) ADJ 33 (LB), has observed as under:-

"Needless to say that right to life and liberty are guaranteed under Article 21 of
the Constitution of India and the arms licenses are granted for personal safety and security
after due inquiry by the authorities in accordance with the provisions contained in Arms Act,
1959. The provisions of section 17 of the Arms Act with regard to suspension or cancellation
of arms licence cannot be invoked lightly in an arbitrary manner. The provisions contained
under section 17 of the Arms Act should be construed strictly and not liberally. The
conditions provided therein, should be satisfied by the authorities before proceeding ahead
to cancel or suspend an arms licence.

We may take notice of the fact that for any reason whatsoever, the crime rate is raising day
by day. The Government is not in a position to provide security to each and every person individually.
Right to possess arms is statutory right but right to life and liberty is fundamental guaranteed by
Article 21 of the Constitution of India. Corollary to it, it is citizen's right to possess firearms for their
personal safety to save their family from miscreants. It is often said that ordinarily in a civilized
society, only civilized persons require arms licence for their safety and security and not the criminals.
Of course, in case the Government feels that arms licence are abused for oblique motive or criminal
activities, then appropriate measures may be adopted to check such mal-practice. But arms licence
should not be suspended in a routine manner mechanically, without application of mind and keeping
in view the letter and spirit of section 17 of the Arms Act."

15. The same view has been taken by this Court in Haseeb Ahmed @ Rassu Vs. The
Commissioner, Kanpur Mandal Kanpur and others, 2012 (10) ADJ 27.

16. From the perusal of the impugned order, it transpires that the District Magistrate has no
where recorded his own satisfaction considering the petitioner's reply that it is the petitioner who has
opened fire and breached the public peace and public safety. In fact, there was no material before the
District Magistrate to arrive at this conclusion. The firearm licences are issued only after due
verification of the persons who desire to obtain a firearm licence. The police reports are obtained and
other inquiries are also made regarding the character and credential of the person desiring to have a
firearm licence. The District Magistrate has recorded that the petitioner is a man of ill-repute and of
furious nature, this finding is self-contradictory and does not suggest that if the petitioner was a man
3 All. Nagar Ayukt, Nagar Nigam, Kanpur Vs Brij Kishore Bajpai & Anr.
399
 of ill-repute and of furious nature then why firearm licence was issued to him. It has nowhere been
recorded that prior to the present incident, the petitioner has ever misused his firearm or any criminal
case is pending against him. Merely on the basis of police report, that too without based on any
concrete material, in my view, an opinion could not be formed by the Licensing Authority for
cancellation of the petitioner's firearm licence. Once the statute confers the power upon the authority
to cancel or suspend the licence on the basis of police report or otherwise, the authority empowered
under the statute ought to apply his own mind independently looking into the contents of the police
report, reply of the licencee and other attending circumstances. Passing of an order treating the police
report sacrosanct is neither desirable nor intention of the Legislature. Before the licensing authority,
the police report is to be treated on the one side and reply of the licensee on another side and
thereafter, after perusing the record and other attending circumstances opinion for cancellation
suspension should be formed independently which part is lacking here as there was no concrete
material before the licencing authority to arrive at that it is the petitioner who has been instrumental in
breach of public peace and safety.

17. Learned standing counsel appearing for the State respondents could not show, either from
the perusal of the impugned order passed by the District Magistrate or from the order passed by the
learned Commissioner, any material substantiating the allegations of misuse of fire arm by opening
fire in the public resulting in breach of public peace or public safety. The only basis is the police
report, which has been denied by the petitioner, except this there is no material, therefore, in my
considered opinion, the Licensing Authority has erred in cancelling the petitioner's fire arm licence
and misused his power for cancellation of firearms licence vested in him. The appellate authority too
has committed the same error by not considering the grounds of appeal and dismissing the same on
the reasons recorded by the District Magistrate without there being any application of mind.
Therefore, impugned orders passed by the District Magistrate as well as Commissioner cannot be
sustained in the eye of law.

18. The writ petition succeeds and is allowed. The order dated 5.2.2015 passed by the District
Magistrate, Shamli in Case No. 7/2012-13 (State vs. Shahid) as well as the order dated 28.5.2015
passed by the Commissioner, Saharanpur Division, Saharanpur in appeal No. 02 of 2015
C2015090000228 (Shahid vs. State) are hereby quashed. The District Magistrate, Shamli is directed
to take follow up action within a shortest period of two weeks in accordance with law from the date
of receipt of certified copy of the order of this Court.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2016

BEFORE

THE HON'BLE PANKAJ MITHAL, J.

Writ C No.- 37586 of 2012

Nagar Ayukt, Nagar Nigam, Kanpur ...Petitioner
Versus
Brij Kishore Bajpai & Anr ...Respondents