# Om Prakash v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 1327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-22
- **Case number:** MISC. SINGLE No. 2242 of 2006
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-and-others-41789
- **Pages:** 7

## Headnote

Arms Act-Section 14-Application for Fire
Arm
Licence-rejected
on
ground
of
pendency of criminal case-final report
already
submitted-apart
from
that
petitioner already possessing DBBL Gun
licence-which
renewed
during
this
period-held-refusal
beyond
scope
of
section
14-not
proper-even
without
assigning any reason by cripic order
passed
by
authorities
below-not
sustainable.

Held: Para 20

Needless to mention herein that it is a
well settled provisions of law that any
order which has been passed by the
authority must always be supported with
adequate reasons and justifications and
in the present case, the order passed by
the Licencing Authority is nonspeaking
order and is passed without disclosing
any reasons whatsoever, so the same
cannot be sustained.
Case law discussed:
[2010 (I) JIC 232 (All)], [2010 (2) JIC 585
(All)], [2010 (1) JIC 232 (All)].,[2010 (2) JIC
585 (All)]

## Text

3 All] Om Prakash V. State of U.P. and others
1327
proceedings under the Act would abate in
view of section 3 and 4 of the Repeal Act.

8. Lastly, it is urged that in view of
the Repeal Act, the appeal itself was not
maintainable before the District Judge and
therefore entire proceedings are void ab
initio.

9. Be it so, quashing of the order of
the appellate court would result in revival
of another void order and therefore the
Court declines to set aside the appellate
order.

10. No other point has been urged.

11. For the reasons above, this is not
a fit case for interference under Article to
226 of the Constitution of India. Rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.12.2010

BEFORE
THE HON'BLE ANIL KUMAR, J.

MISC. SINGLE No. 2242 of 2006

Om Prakash

 ...Petitioner
Versus
State of U.P. Thru Secy. Home and
others.

 ...Respondents

Counsel for the Petitioner:
K.N.Mishra

Counsel for the Respondents:
C.S.C.

Arms Act-Section 14-Application for Fire
Arm
Licence-rejected
on
ground
of
pendency of criminal case-final report
already
submitted-apart
from
that
petitioner already possessing DBBL Gun
licence-which
renewed
during
this
period-held-refusal
beyond
scope
of
section
14-not
proper-even
without
assigning any reason by cripic order
passed
by
authorities
below-not
sustainable.

Held: Para 20

Needless to mention herein that it is a
well settled provisions of law that any
order which has been passed by the
authority must always be supported with
adequate reasons and justifications and
in the present case, the order passed by
the Licencing Authority is nonspeaking
order and is passed without disclosing
any reasons whatsoever, so the same
cannot be sustained.
Case law discussed:
[2010 (I) JIC 232 (All)], [2010 (2) JIC 585
(All)], [2010 (1) JIC 232 (All)].,[2010 (2) JIC
585 (All)]

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri K.N. Mishra, learned
counsel for the petitioner and Sri Rakesh
Srivastava, learned Standing Counsel on
behalf of the opposite parties.

2. By means of the present writ
petition, the petitioner has challenged the
impugned
orders
dated
07.01.2006
(Annexure2) passed by Commissioner,
Devi Patan Mandal, Gonda rejecting the
petitioner's
appeal
and
order
dated
23.02.2005
(Annexure1)
passed
by
District Magistrate, Gonda by which the
petitioner's application for grant of licence
for 315 Bore Rifle has been rejected.

3. In brief the facts of the present
case are that the petitioner has applied for
a licence of N.P. Bore Rifle in the year
1999, thereafter the O.P. No. 3/District
Magistrate, Gonda/Licencing Authority
called the report from the concerned
police authority in order to consider the
matter regarding grant of arm licence.
1328 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

4. On 22.02.2005, Superintendent of
Police, Gonda submitted a report against
the petitioner stating therein that a
criminal case No. 154 of 2000 under
Section 147, 148, 149 307, 427 IPC has
been registered in which the final report
has been submitted by the police in the
court of ACJM, 1st Gonda, and the same
is under consideration. In the said report it
is stated that the petitioner already
possessed a licence in respect to SBBL 12
Bore Gun and he has a criminal history,
so there is no justification or reason to
grant another licence.

5. Taking into consideration the said
report dated 22.02.2005 submitted by
Superintendent of Police, Gonda, the
Licencing Authority/District Magistrate,
Gonda by order dated 23.02.2005 rejected
the petitioners application for grant of
licence for NP Bore Rifle, challenged by
him
before
the
Appellate
Authority/Commissioner,
Devi
Patan
Mandal, Gonda, who dismissed the appeal
on the ground that a criminal case against
the petitioner is pending and he has
already a SBBL Gun licence. Hence the
present writ petition has been filed before
this Court.

6. Learned counsel for the petitioner
while assailing the impugned orders dated
23.02.2005 and 07.01.2006 passed by
O.P. Nos. 3 and 2 submitted that they are
illegal and arbitrary in nature as the same
have been passed on the recommendation
of the Superintendent of Police, Gonda
dated 22.02.2005 without application of
their own mind.

7. He further submits that in the
criminal case registered against the
petitioner, the police authority has already
submitted the final report, so there is no
justification or reason for not granting the
licence in his favour.

8. Learned counsel for the petitioner
further submits that the O.P. Nos. 2 and 3
failed to appreciate the fact that the
petitioner who has already a licence of
SBBL Gun since the year 2002 thereafter
renewed from time to time, so keeping the
said facts and the provisions as provided
under Section 15(3) of the Arms Act,
1959 (hereinafter referred to as the Act)
read with Section 13 of the Act, no good
reasons or grounds exist on the part of the
opposite parties not to grant second
licence him in respect to the N.P. Bore
Rifle rather the same is contrary to the
mandatory provisions as provided under
Section 3(2) of the Act by which a person
can have three fire arms licences in his
possession at any time. In order to support
the said contention, learned counsel for
the petitioner relied on the following
judgments (a) Sunil Shukla, Advocate
Vs. State of U.P. & Ors. [2010(I) JIC
232 (All)] (b) Wasim Ahmad Vs. State
of U.P. & Ors. [2010 (2) JIC 585 (All)].

9. In view of the abovesaid facts,
counsel for the petitioner submits that the
impugned orders dated 23.02.2005 and
07.01.2006 are contrary to law and liable
to be set aside.

Sri
Rakesh
Srivastava,
learned
Standing Counsel for the respondents
submits that on the application submitted
by the petitioner for grant of licence of
N.P.
Bore
Rifle,
the
District
Magistrate/Licencing Authority vide a
letter dated 10.12.2002 called a report
from
SubDivisional
Magistrate
and
Superintendent of Police, Gonda and in
the said report dated 22.02.2005, it was
recommended for not issuing the required
3 All] Om Prakash V. State of U.P. and others
1329
the licence as sought by the petitioner,
keeping in view the said facts, a criminal
history of the petitioner and he already
has a Single Bore Gun in his possession.
The O.P. No. 3 rejected his application for
grant of another licence.

10. Sri Rakesh Srivastava, learned
counsel for the respondents further
submits that as per Section 14(1) (b)(i)(3)
of the Act. Licencing Authority can refuse
to grant a licence for any reason which it
may deem fit and proper before granting a
licence under the Act. So, the order dated
23.02.2005 passed by O.P. No. 3 thereby
rejecting the petitioner's application and
order
dated
07.01.2006
passed
by
Appellate
Authority/O.P.
No.
2
dismissing his appeal is perfectly valid,
the present writ petition is liable to be
dismissed.

11. I have heard the counsel for the
parties and gone through the record.
Before adjudicating and deciding the
dispute involved in the present case, it s
appropriate to have some mandatory
provisions which govern the filed in
question.

12. Chapter II of the Arms Act 1959
provides
for
acquisition,
possession,
manufacture, sale, import, export and
transport of arms and ammunition and the
relevant portion of Section 3(2) therein
are as under:

"Notwithstanding anything contained
in subsection (1), no person, other than a
person referred to in subsection (3), shall
acquire, have in his possession to carry,
at any time, more than three firearms."

13. Chapter III of the Arms Act
deals with the provisions relating to
licences and Section 13 therein provides
the procedure in respect to grant of
licence
the
same
is
reproduced
hereinbelow:

"(1) An application for the grant of a
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) [ Note: Subs. by Act 25 of 1983,
s. 6 (w.e.f. 2261983) ] 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, and after considering the
report received
under
subsection(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 deem fit, make such
order, after the expiry of the prescribed
time, without further waiting for the
report].

(3) The licensing authority shall
grant

(a) A licence under section 3 where
the licence is required
1330 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

(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 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 in
muzzle loading gun will not be sufficient
for
crop
protection,
the
licensing
authority may grant a licence in respect
of any other smooth bore gun a 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 rifle club or rifle
association licensed or recognised by the
Central Government ;

(b) A licence under section 3 in any
other case or 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. Section 14 of the Arms Act lays
down the conditions on which the licence
can be refused to a person the relevant
portion
of
Section
14
are
being
reproduced hereinbelow:

15. Refusal of licences - (1)
Notwithstanding anything in section 13,
licensing 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 then 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 licensing 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) Where 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.

16. Lastly Section 15 of the Arms
Act provides for Duration and renewal of
licence, and the relevant portion i.e.
SubSection 3 of Section 15 is being
reproduced hereinbelow:

"(3) Every licence shall, unless the
licensing authority for reasons to be
3 All] Om Prakash V. State of U.P. and others
1331
recorded in writing otherwise decides in
any case, be renewable for the same
period for which the licence was
originally granted and shall be so
renewable from time to time, and the
provisions of section 13 and 14 shall
apply to the renewal of a licence as they
apply to the grant thereof."

17. Now reverting to the facts of the
present case it is not disputed between the
parties that the petitioner is already holder
of a Gun Licence No. 783 in respect to the
SB Gun 12 Bore and he has applied for
another licence for N.P. Bore Rifle to the
O.P. NO. 3/Licencing Authority.

18. Thereafter, the said authority
called the report from the concerned
police authorities in order to consider the
petitioner's application for grant of Arms
Licence. In response to the same,
Superintendent
to
Police,
Gonda
submitted a report dated 22.02.2005 inter
alia stating therein that a criminal Case
bearing Case Crime No. 154 of 2000
under Section 147, 148, 149, 37 and 427
I.P.C. registered in Police StationKotwali,
Gonda in which a final report was
submitted in the Court of ACJM, Gonda.

19. Further the said authority has
also recommended that the petitioner has
a licence in respect to S.B. 12 Bore Gun
he has a criminal background, so second
licence should not be granted to him
taking into consideration the said fact and
without giving any reasons whatsoever,
by way of nonspeaking order, the
Licencing Authority/District Magistrate,
Gonda rejected the petitioner's application
for grant of licence vide order dated
23.02.2005 and appeal was also dismissed
by the appellate authority/Commissioner,
Devi Patan Mandal, Gonda.

20. Needless to mention herein that it
is a well settled provisions of law that any
order which has been passed by the
authority must always be supported with
adequate reasons and justifications and in
the present case, the order passed by the
Licencing Authority is nonspeaking order
and is passed without disclosing any
reasons whatsoever, so the same cannot be
sustained.

21. Further in the present case there is
only one criminal matter against the
petitioner and in which the police has
submitted his final report. Moreover, he is a
holder of an arms licence in respect to S.B.
12 Bore Gun, granted in his favour in the
year 2002 subsequently renewed as per the
provisions of SubSection 3 of Section 15 of
the Act, the said Section provides that the
licence which has been granted shall be so
renewable from time to time and the
provisions of Section 13 and 14 of the Act
shall apply to the renewal of licence as they
may apply to grant thereof.

22. Reading the provisions of the
Section 19 (3) and provisions in respect to
grant of fresh licence as provided under
Section 13 of the Arms Act, the action on
the part of the O.P. No. 3 to refuse the grant
of second licence to the petitioner is an
action which is contrary to law, because as
per the SubSection 3 of Section 2 of the Act
a person can acquire or possess three fire
arms licences at any time so the orders
which are under challenge in the present
writ petition are arbitrary in nature and
cannot sustain.

23. In the case of Sunil Shukla,
Advocate Vs. State of U.P. & Ors. [2010
(1) JIC 232 (All)].
1332 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

"I have considered the submissions the
parties and have perused the record. From
the perusal of the Act it is clear that a
person who is having arm licence, can make
another application and can acquire and
possess three firearms and arm licences in
view of Section 3 of the Act. Even the
proviso requires a person having more than
three arms on the date of amendment of the
Act of 1983 which came into force, to
surrender more than three arms. Thus the
acquiring and possessing of more than one
arm is not prohibited. On the other hand, it
is permitted. From the perusal of Section 3
of the Act, it appears that it does not
provide that for acquiring a licence for the
second arm, the applicant has to disclose
some special reason. In case the law does
not
provide
or
prescribe,
in
that
circumstances, the question is whether the
authorities below can reject the application
filed by a person disclosing this fact that he
is having a licence of a particular arm. The
application of other firearm made by the petitioner could have been rejected by the
respondents on the ground that the police
report was not submitted in his favour. But
this is not the position in the present case.
The police authorities have submitted a
report in favour of the petitioner. Therefore,
as the order passed by the District
Magistrate does not disclose any reason for
refusing the licence for possessing the
DBBL gun by the petitioner, the only reason
assigned in the impugned order is that the
petitioner has not disclosed any special
reason for acquiring the second arm
licence. If law does not prohibit the
petitioner from obtaining another arm
licence, it could not have been refused by
the respondents on the ground that special
reasons to be recorded were required to be
intimated in the application made by the
petitioner. In view of the aforesaid fact, the
order passed by the District Magistrate
dated 11208 cannot be sustained."

24. In the case of Wasim Ahmad Vs.
State of U.P. & Ors. [2010 (2) JIC 585
(All)] this Court has held that in paragraph
Nos. 12 and 12 has held as under:

Para 12 A Division Bench of this
Court in the case of Ram Shanker Vs. State
of U.P. 1980 A.W.C. 154, has laid down
that the absence of genuineness of the need
is not a ground for refusing a licence under
Section 14 of the Act. Lack of genuineness
of the need is therefore, not one of the
ground for refusing a licence.

Identical question was considered by
the learned Single Judge in Case of Ram
Khelawan Misra Vs. state of U.P. and
another,
1982
A.W.C.
123
and
in
paragraph nos. 6 and 10 of the aforesaid
judgment this court held as under:

"6. In the present case, the District
Magistrate has in his order stated that the
S.D.M. and the Superintendent of Police
have written ' No objection' on the
application of the petitioner, but that was
not a recommendation for the grant of a
licence. He has ultimately observed that the
need of the applicant was not genuine. It
would, therefore, be seen that the order
passed by the District Magistrate does not
come under any of the clauses of Sec. of the
Act. The expression to be for any reason
unfit for a licence under the Act is not
synonymous with the applicant not having
genuine need. Section 14 of the Act
prohibits the grant of a licence where the
person is under some disability, or is of
unsound mind or where he is such type
person who may endanger the public peace
or public safety. The plea that the petitioner
does not have a genuine need cannot be
3 All] Ramesh and others V. State of U.P
1333
equated with any of the clauses under sec.
14 of the Act. There is no provision in sec.
14 of the act to refuse a licence if the need
of the applicant is not genuine. A Division
Bench of this Court in the case of Ram
Shanker Vs. State of U.P., 1980 A.W.C. 154,
has laid down that the absence of
genuineness of the need is not a ground for
refusing a licence under Sec. 14 of the Act. .
Lack of genuineness of the need is therefore
not one of the grounds for refusing a
licence."

10. Section 14 of the Act commences
with a non obstante clause (notwithstanding
anything in Sec. 13) and then lays down the
grounds for refusing to grant the licence.
Since the grant of a licence can be refused
only under the provisions of Sec. 14 and its
subclauses, I do not find any provision
which permits the licensing authority to
refuse the grant of a licence on the ground
that the applicant did not establish a
genuine need. "

Similar view was taken by this Court in
the case of Ram Chandra Yadav Vs. State of
U.P. reported in 2009 (9) ADJ, 2007.

Para 13-The failure of the appellate
authority to redeem the illegality committed
by the licensing authority, Additional
District
Magistrate,
Gorakhpur
has
rendered the order of appellate authority
also totally unsustainable. Hence in view of
the settled legal position on the issue that
the fire arm licence can not be refused
merely on the ground that the need of
licence is not genuine, the orders passed by
the respondent no. 2 and 3 are totally
unsustainable in the eyes of law and are
liable to be set aside.

25. For the foregoing reasons, the
impugned
orders
dated
07.01.2006
(Annexure2) passed by Commissioner,
Devi Patan Mandal, Gonda and order dated
23.02.2005 (Annexure1) passed by District
Magistrate, Gonda are set aside and the
matter is remanded back to the Licencing
Authority/District Magistrate, Gonda to
consider afresh in accordance with law in
respect to grant of arms licence to the
petitioner in response to his application
submitted
for
the
said
purpose
expeditiously, say, within a period of four
months from the receiving the certified
copy of this order.

26. With the above observations, the
writ petition is allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.12.2010

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE VEDPAL, J.

Criminal Appeal No. 528 of 1998

Ramesh and others

...Appellants
Versus
State of U.P.

 ...Respondent

Criminal Procedure Code-Section 389-of
Bail
during
pendency
of
appealconviction for offence under Section323,302,307,149 IPC-claim of Paritythird Bail application-earlier applications
rejected on merit-counsel for applicant
unable to argue the case finally-cannot
blame the court for delay in disposal of
appeal-held-bail can not be granted on
parity-or on ground of delay. No case for
bail-appeal itself be listed for hearing.

Held: Para 14 and 32

In view of the aforesaid discussion, we
are of the considered opinion that parity
can not be the sole ground for granting
bail.