# Shravan Kumar v. Commissioner Division Lko. & Anr

- **Citation:** (2024) 3 ILRA 1992
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-23
- **Case number:** Writ-C No. 30867 of 2016
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shravan-kumar-v-commissioner-division-lko-anr-54559
- **Pages:** 6

## Headnote

Civil Law - Constitution of India,1950Article
226-Arms
Act,1959-Section
17,3/25/30-Petitioer
challenged
the
cancellation of arms license-an FIR was
lodged against the petitioner and his
cousin-merely on account of recovery of
gun from his cousin's premises, notice was
issued to the petitioner-The court held
that merely because the weapon was
found in the possession of other individual
cannot be ground sufficient itself to
construe violation of terms and conditions
of the license-there is no allegation that
the petitioner or his cousin had ever
misused the licensed weapon-Accordingly,
the findings recorded by the District
Magistrate as well as the order passed by
the Appellate authority are arbitrary and
accordingly set aside.(Para 1 to 17)

The writ petition is allowed. .(E-6)

List of cases cited:

## Text

1992 INDIAN LAW REPORTS ALLAHABAD SERIES
there are many surrounding circumstances
which need to be establish by leading of
evidence. Under such circumstances, we
consider that no interference is warranted
and we do not think it to be a fit case for
interference. Accordingly, the writ petition
is dismissed.

17. We find that the petitioner's
original suit bearing Suit No. 148 of 2014
was dismissed and the petitioner has
already filed a First Appeal bearing First
Appeal No. 131 of 2023. None of the
findings as have been arrived at in this
judgment would affect the merits of the
First Appeal. It may be decided on its own
merits.

18. It may also be noted that we
have not passed any order on the merits of
the report dated 22.5.2019, which is under
challenge.
----------
(2024) 3 ILRA 1992
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.02.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 30867 of 2016

Shravan Kumar ...Petitioner
Versus
Commissioner Division Lko. & Anr.
 ...Opp. Parties

Counsel for the Petitioner:
Amit Kumar Pathak, Ganesh Kumar Gupta

Counsel for the Opp. Parties:
C.S.C.

Civil Law - Constitution of India,1950Article
226-Arms
Act,1959-Section
17,3/25/30-Petitioer
challenged
the
cancellation of arms license-an FIR was
lodged against the petitioner and his
cousin-merely on account of recovery of
gun from his cousin's premises, notice was
issued to the petitioner-The court held
that merely because the weapon was
found in the possession of other individual
cannot be ground sufficient itself to
construe violation of terms and conditions
of the license-there is no allegation that
the petitioner or his cousin had ever
misused the licensed weapon-Accordingly,
the findings recorded by the District
Magistrate as well as the order passed by
the Appellate authority are arbitrary and
accordingly set aside.(Para 1 to 17)

The writ petition is allowed. .(E-6)

List of cases cited:

1. Satish Singh Vs D.M. Sultanpur(2009)4 ADJ
33 (LB)

2. Superintendent & Remembrancer of Legal
Affairs Vs Anil Kumar Bhunja & ors. (1974) 4
SCC 274

3. Gunwantlal Vs St. of M.P. (1973) 1 SCR 508

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri Manoj Kumar Yadav,
Advocate holding brief of Shri Ganesh
Kumar
Gupta,
learned
counsel
for
petitioner, learned Standing Counsel for the
State and perused the material available on
record.

2. By means of the present writ
petition, the petitioner has challenged the
order dated 20.09.2012 passed by the
District
Magistrate,
Lakhimpur
Kheri
whereby in exercise of powers under
Section 17 of the Arms Act, 1959, he has
cancelled the arm licence of the petitioner
as well as order dated 03.11.2015 wherein
the appeal filed against the order of the
3 All. Shravan Kumar Vs. Commissioner Division Lko. & Anr.
1993
cancellation has been rejected by
the Commissioner, Lucknow Division,
Lucknow.

3. It has been submitted by learned
counsel for the petitioner that he was issued
an Arm Licece No. 659/95 DBBL Gun No.
7402115. Subsequently, an FIR was lodged
against the petitioner and his cousin
namely, Sheo Pujan in Case Crime No. 842
of 2010, under Section 3/25/30 of the Arms
Act at Police Station Phool Behad, District
Kheri where it was alleged that the licensed
gun of the petitioner was recovered from
Sheo Pujan. Merely on account of recovery
of the gun, notice was issued to the
petitioner as to why his licence be not
cancelled. The petitioner replied to the
show
cause
notice
and
denied
the
allegations therein and further submitted
that there is no criminal case lodged against
the petitioner and only for a short period of
time had kept the gun at a particular place
and left. When he returned back he found
that the gun has been taken away by the
police parties and an first information
report was lodged. It seems that the
petitioner did not participate any further in
the proceedings before the Licensing
Authority/District
Magistrate.
Consequently, the impugned order dated
20.09.2012 was passed by the District
Magistrate holding that the allegations
against the petitioner were correct and
cancelled his arm licence.

4. The petitioner, being aggrieved
by the order of cancellation of his arm
licence,
filed
an
appeal
before
the
Commissioner,
Lucknow
Division,
Lucknow. Before the Commissioner, the
petitioner has submitted that the allegations
levelled against him were false and that the
gun was never given in the custody of Sheo
Pujan and it is only the fact that the said
gun was kept at a plot under the control of
Sheo Pujan fromwhere the police team
raided and recovered the said weapon. He
stated that there was no misuse of any
condition of the arm licence and merely on
conjectures and hypothesis, the said licence
has been cancelled. He further submits that
there is no material before the Licensing
Authority to come to a conclusion that
there was any violation of the condition of
the licence and consequently, prayed for
allowing of the appeal and setting aside the
order of the District Magistrate. The
Commissioner has duly recorded the
contention of the petitioner and reiterated
the findings recorded by the Licensing
Authority and rejected his appeal.

5. Learned counsel for the
petitioner has submitted that firstly merely
even if the allegations levelled against him
are found to be correct then also it does not
construe as a violation of the condition of
the arm licence. He further submitted that
there was no material before the Licensing
Authority to have come to a conclusion that
there was violation of the condition of the
licence
necessitating
cancellation
of
licence. In this regard, he has submitted
that though he objected to the allegations
levelled against him but none of the
objections were considered. He further
submitted that the allegations were never
proved as no one appeared before the
Licensing Authority to prove that the
licensed weapon issued to the petitioner
was found in the custody of Sheo Pujan.

6. He further submits that along
with the show cause notice no material or
any statement was made available to the
petitioner
from
which
it
could
be
ascertained
that
there
was
sufficient
material in support of the allegations
levelled against the petitioner.
1994 INDIAN LAW REPORTS ALLAHABAD SERIES
7. I have heard learned counsel for
respective parties and perused the record.

8. The only point for consideration
as to whether with the allegations levelled
against the petitioner were sufficient to
enable the Licensing Authority to cancel
the
arm
licence
of
the
petitioner.
Undisputed facts are that on 02.04.2010 on
the basis of information, the police had
raided the plot of one Sheo Pujan, who was
closely related to the petitioner. During the
raid, the licensed weapon of the petitioner
was found in the premises of Sheo Pujan
and consequently, an FIR under the Arms
Act was registered. The said Sheo Pujan
was also taken into custody and he was
released
on
bail
on
05.05.2010.
Simultaneously a notice was given to the
petitioner as to why his arm licence be not
cancelled.

9. It is also admitted that there is
no allegation that the said weapon was ever
used by Sheo Pujan or that he had fired
from the said weapon. Mainly it is the case
of the prosecution that the recovery of the
weapon was made from the premises under
control of Sheo Pujan. No evidence was
recorded by the Licensing Authority to
ascertain the aforesaid facts, which were
the very basis of the cancellation of the arm
licence. No police official, who was the
part of the raid party, was ever examined
before the District Magistrate to record a
satisfaction with regard to the location from
which the weapon was recovered, neither
was Sheo Pujan examined nor given notice
to appear before the Licensing Authority.
Apart from the First Information Report,
there was no other material available with
the District Magistrate.

10. It is at this stage that Licensing
Authority must be reminded of the findings
by a Division Bench of this Court in the
case
of
Satish
Singh
Vs.
District
Magistrate, Sultanpur, 2009 (4) ADJ 33
(LB), has observed in paragraph nos. 6 and
7 as under:-

"6. 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.
7. 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
3 All. Shravan Kumar Vs. Commissioner Division Lko. & Anr.
1995
and keeping in view the letter and spirit of
section 17 of the Arms Act."

11. Though in the entire order
passed by the Licensing Authority, there is
no mention of the particular condition but
assuming that the condition relates to an
injunction of giving weapon to anyone else
possession, then merely because the
weapon was found in someone's possession
cannot be construed as a violation of
condition of licence unless and until it is
proven that the particular individual in
whose possession the weapon was found
had full control and custody of the weapon
coupled with the fact the licencee had given
the custody voluntarily Further it has also
to be considered that the Licencee did not
even retain constructive possession of the
said weapon.

12. Hon'ble the Supreme Court has
discussed "possession' in the case of
Superintendent and Remembrancer of
Legal Affairs Vs. Anil Kumar Bhunja and
others reported in (1974) 4 SCC 274 and
has held in paragraph nos. 13, 14, 15, 16
and 28 as under:-

"13.
"Possession"
is
a
polymorphous term which may have
different mean- ings in different contexts. It
is impossible to work out a completely
logical
and
precise
definition
of
"possession" uniformally applicable to all
situations in the contexts of all statutes.
Dias and Hughes in their book on
Jurisprudence say that if a topic ever
suffered from too much theorising it is that
of "possession". Much of this difficulty and
confusion is (as pointed out in Salmond's
Juris- prudence, 12th Ed., 1966) caused by
the fact that possession is not purely a legal
concept. "Possession", implies a right and
a fact; the right to enjoy annexed to the
right of property and the fact of the real
intention. It involves power of control and
intent to control. (See Dias and Hughes,
ibid.)

14. According to Pollock and
Wright,

"When a person is in such a
relation to a thing that, so far as regards
the thing, he can assume, exercise or
resume manual control of it at pleasure,
and so far as regards other persons, the
thing is under the protection of his personal
presence, or in or on a house or land
occupied by him or in any receptacle
belonging to him and under his control, he
is in physical possession of the thing."
15.
While
recognising
that
"possession" is not a purely legal concept
but also a matter of fact, Salmond (12th
Ed., page 52) describes "possession, in
fact", as a relationship between a person
and a thing. According to the learned
author the test for determining "whether a
person is in possession of anything is
whether he is in general control of it".

16. In Gunwantlal v. State of M.P.
(1973) 1 SCR 508, this Court while noting
that the concept of possession is not easy to
comprehend, held that, in the context of
Section 25(a) of the Arms Act, 1959, the
possession of a firearm must have, firstly,
the element of consciousness or knowledge
of that possession in the person charged
with such offence, and secondly, he has
either the actual physical possession of the
firearm, or where he has not such physical
possession, he has nonetheless a power or
control over that weapon. It was further
recognised that whether or not the accused
had such control or dominion to constitute
his possession of the firearm, is a question
of fact depending on the facts of each case.
1996 INDIAN LAW REPORTS ALLAHABAD SERIES
In that connection, it was observed:

In
any
disputed
question
of
possession, specific facts submitted or
proved will alone establish the existence of
the de facto relation of control or the
dominion of the person over it necessary to
determine whether that person was or was
not in possession of the thing in question.

28. Then, in three of these cases,
namely, Manzur Husain v. Emperor, Sadh
Ram v. State and Emperor v. Harpal Rai,
the licence-holder sent his licensed firearm
for repairs through a person who had the
licence-holder's oral authority, expressly or
impliedly given, to carry it to the repairer.
It was held that the carrier, though he held
no licence to keep the firearm, could not be
said to be in "possession" of it, nor could
the licence-holder be said to have parted
with the "possession" of the firearm or
delivered its possession to an unauthorised
person. Similarly, in one of the cases cited,
the licence-holder sent his fire- arm to the
Magistrate through his servant or agent for
getting the licence renewed. In that case
also, it was held that the servant was not
guilty of any offence for having in his
possession or "carrying" a gun wihout a
licence. The possession was held to be still
with the licence-holder-owner of the
weapon."

13. Merely because the weapon
was found in the possession of other
individual cannot be a ground sufficient
itself to construe violation of terms and
conditions of the licence, inasmuch as,
there may be embodied occasions where
the licencee has to part away temporarily
with the possession of the weapon for
retaining constructive possession of the
said weapon.
14. For Example, if a person goes
to visit a temple or any other place where
he is not allowed to carry the weapon, he is
under
compulsion
to
part
with
the
possession of the weapon temporarily for a
short period of time and during his time
another individual has custody but the
licencee would certainly have constructive
custody of the weapon. In such a situation,
though the physical possession of the
weapon had been given to another
individual but at all point of time, he
retained the constructive possession and in
such a case it cannot be said that there was
a violation of condition of the licence.

15. It is therefore, in the aforesaid
circumstances, this Court is of the
considered view that when the Licensing
Authority/Prescribed Authority has reason
to proceed to consider the case where there
is a violation of condition of the licence
where the weapon has been found in the
possession of other person, then there has
to be a satisfaction that the licencee did not
even have the constructive possession of
the weapon at the point of time when the
weapon was recovered.

16. Accordingly, this Court is of
the considered view that merely because
the weapon was found in the premises,
which were controlled by cousin brother of
the petitioner, cannot lead to a conclusion
that the petitioner was not in control of the
licensed weapon issued to him. There is no
allegation that the petitioner or Sheo Pujan
had ever misused the licensed weapon and
accordingly, the findings recorded by the
District Magistrate as well as the order
passed by the appellate authority are
arbitrary and accordingly set aside.

17. The writ petition is allowed.
The order dated 20.09.2012 passed by the
3 All. Pyare Lal & Ors. Vs. U.O.I. & Ors.
1997
District
Magistrate,
Lakhimpur
Kheri as well as order dated 03.11.2015
passed by the appellate authority are hereby
quashed..
----------
(2024) 3 ILRA 1997
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 31120 of 2019
With
Writ C No. 33836 of 2019

Pyare Lal & Ors. ...Petitioners
Versus
U.O.I. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Sri Shiv Kant Mishra, Sri Krishna Kant Mishra

Counsel for the Opp. Parties:
A.S.G.I., C.S.C., Ms. Suman Jaiswal

Civil Law - Constitution of India,1950Article 226-

Land Acquisition Act,1894-Sections 4 r/w
17-Right
to
Fair
Compensation
and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act,2013Section
24(1)(a)-The
land
acquisition
process was initiated in 2005 under the
old Act, with possession taken in 2007-the
new act came into force in the year 2014petiitioners
claimed
that
the
compensation
should
be
determined
based on the new Act-Section 24 of the
2013 Act provides that if no award was
made before the new Act came into effect,
compensation must follow the provisions
of the new Act-The court directed the
Special Land Acquisition Officer to redetermine the compensation using the
2014 market value within 12 weeks.(Para
1 to 17)

The writ petition is allowed. .(E-6)

List of cases cited:

1. Hori Lal Vs St. of U.P. & 3 Ors Writ-C No.
44731 of 2016

2. Prahlad Singh & ors. Vs St. of U.P. & ors WritC No. 15804 o 2016

3. Krishna Autar & 5 Ors Vs St. of U.P. & ors
Writ-C No. 44720 of 2016

4. Ishan International Edu. Socy Thru' Dir Vs St.
of U.P. & ors Writ-C No. 60276 of 2015

5. Smt Sabita Sharma & 2 Ors Vs St. of U.P. &
ors Writ-C No. 30088 of 2022

(Delivered by Hon'ble Manoj Kumar
Gupta, J., & Hon'ble Kshitij Shailendra, J.)

1. Heard Shri S.K. Mishra, learned
counsel for the petitioners, Ms. Suman
Jaiswal, learned counsel for respondent
nos.1 and 5 in Writ-C No.31120 of 2019
and Shri Gautam Kumar, learned counsel
for respondent nos.1 and 5 in Writ-C
No.33836 of 2019 and Shri Rajiv Gupta,
learned Additional Chief Standing Counsel
for respondent nos.2, 3 and 4.

2. The petitioners in both the writ
petitions have assailed the award dated
26.12.2015
passed
by
Special
Land
Acquisition Officer, Joint Organization,
Bareilly, one of the respondents. The award
has been purportedly made under the
saving clause embodied in Section 24(1)(a)
of the Right to Fair Compensation and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act, 2013
(for short hereinafter referred to as 'the new
Act, 2013').