# Vimla Devi and another v. State

- **Citation:** (2011) 2 ILRA 879
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-13
- **Case number:** Misc. Writ Petition No. 10539 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vimla-devi-and-another-v-state-41990
- **Pages:** 4

## Headnote

Constitution
of
India
Article
226cancellation of Fire Arm License-on
ground
the
petitioner
involved
in
criminal case-and fail to produce his fire
arm-cancellation
based
upon
Police
report-during
pendency
of
appealpetitioner not only got fair acquittal but
also recommended for prosecution U/S
182
Cr.P.C.-No
reason
disclosed-for
ignoring the judgment of Criminal CourtHeld-possession of fire arm in fact
fundamental
right-caused
senior
prejudice
on
unsustainable
reasonspetition allowed with cost of Rs. 25000/.

Held Para 12

Unfortunately, that is not so. The matter
of firearm is being dealt with by
respondents in a very fanciful and
strange manner having no reasonable
nexus with the purpose sought to be
achieved. I really failed to understand as
to why the Commissioner could not
consider
the
matter
in
correct
perspective while deciding appeal of the
petitioner after decision of Court in
criminal case no.849 of 2008 (Case
Crime No.400/07). This has caused
serious
prejudice
to
the
petitioner,
inasmuch as, he has been put in a
880 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
serious peril and his life have been
endangered
by
depriving
him
of
possession of a firearm on unsustainable
reasons.

## Text

2 All] Rakshapal Singh V. State of U.P. and others
879
Misc. Writ Petition No. 10539 of 2007
(Smt. Vimla Devi and another Vs. State
of
U.P.
and
others),
decided
on
13.03.2007 has held that subsequent
allottee has no right to continue with the
fair price agreement, if the predecessor
comes back due to revocation of his
cancellation order.

5. Thus third party, who is allotted
the
distribution,
do
not
have
any
individual right but its rights are subject
to the decision in appeal and therefore a
fair price dealer, whose matter is pending
in appeal, does not suffer in any manner.

6. In the circumstances, I do not find
any reason for directing the respondents
not to make any arrangement for
maintaining
distribution
to
the
beneficiaries
as
a
matter
of
fact.
Moreover, nothing has been discussed in
the judgment cited by the learned counsel
for the petitioner as to how petitioner, as a
matter of right, can request for not
creating third party right in the meantime.
Therefore, the judgment to this extent are
not a binding precedent. In order to
constitute binding precedent a judgment
must show that the issue was raised,
argued and decided and only then the law
laid down therein would be binding on the
coordinate
Bench.
[See
Kanoria
Chemicals & Industries Ltd. Vs. U.P
State Electricity Board, AIR 1994
Allahabad 273 (para 10)]

7. The writ petition therefore lacks
merit. Dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 41618 of 2010

Rakshapal Singh

 ...Petitioner
Versus
State of U.P. Thru' Principal Secy. Home
U.P. Govt. & others.
 ...Respondents

Counsel for the Petitioner:
Sri Digvijay Tiwari

Counsel for the Respondents:
C.S.C.

Constitution
of
India
Article
226cancellation of Fire Arm License-on
ground
the
petitioner
involved
in
criminal case-and fail to produce his fire
arm-cancellation
based
upon
Police
report-during
pendency
of
appealpetitioner not only got fair acquittal but
also recommended for prosecution U/S
182
Cr.P.C.-No
reason
disclosed-for
ignoring the judgment of Criminal CourtHeld-possession of fire arm in fact
fundamental
right-caused
senior
prejudice
on
unsustainable
reasonspetition allowed with cost of Rs. 25000/.

Held Para 12

Unfortunately, that is not so. The matter
of firearm is being dealt with by
respondents in a very fanciful and
strange manner having no reasonable
nexus with the purpose sought to be
achieved. I really failed to understand as
to why the Commissioner could not
consider
the
matter
in
correct
perspective while deciding appeal of the
petitioner after decision of Court in
criminal case no.849 of 2008 (Case
Crime No.400/07). This has caused
serious
prejudice
to
the
petitioner,
inasmuch as, he has been put in a
880 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
serious peril and his life have been
endangered
by
depriving
him
of
possession of a firearm on unsustainable
reasons.

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. The petitioner possess a firearm
license No.8816 whereupon an entry of
Gun No.S.B.B.L.10718 exist. It has been
alleged that a criminal case being Case
Crime No.400/07 under Section 307/504
I.P.C.
was
registered
against
the
petitioner. The aforesaid license was
suspended on 31st July, 2007. The order
of suspension besides mentioning the
factum of registration of the aforesaid
criminal case further stated that petitioner
used aforesaid gun in the crime which
was recovered by the local police and the
petitioner could not show his gun, when
required. Hence another case No.401 of
2007 under Section 25/30 Arms Act was
also registered. On the recommendation
of the Station Incharge, which was
approved by Senior Superintendent of
Police,
Aligarh,
Additional
District
Magistrate suspended arm license vide
order dated 31st July, 2007 and thereafter
passed final order on 8th July, 2008
cancelling the said license. The petitioner
preferred an appeal under Section 18 of
Arms Act on 8th August, 2008 which has
been rejected on 05.05.2010.

2. During pendency of the appeal,
criminal case under Section 307/504
I.P.C. was decided vide judgment dated
17th June, 2009 wherein the petitioner
was not only acquitted but the trial Court
also directed for registration of a case
under Section 182 I.P.C. against Bani
Singh PW-2 for lodging a false report
against the petitioner.

3. This fact was brought to the
notice of Commissioner, Aligarh but
ignoring the same, observing that license
was cancelled in order to maintain law
and order on the recommendation of
Senior
Superintendent
of
Police,
Commissioner rejected the appeal by
order dated 5th May, 2010 and confirmed
order of cancellation.

4. Learned counsel for the petitioner
submitted that the appellate order is
clearly arbitrary, based on conjecture and
surmises and therefore deserve to be set
aside.

5. I have heard learned counsel for
the parties and perused the record.

6. Initially the case of respondents
appears to be that the petitioner had used
the aforesaid licensed gun in a crime
pertaining whereto case crime no.400 of
2007 under Section 307/504 IPC was
registered on 23.5.2007. The use of gun in
the aforesaid crime is said to be proved by
alleging that the firearm was recovered by
local police. Thereafter the respondents
proceeded further to allege that petitioner
was required to show his gun but failed
hence another case No.401/2007 under
Section 25/30 Arms Act was registered.
On account of these two matters, the
Station
Incharge
appears
to
have
submitted
a
report
recommending
cancellation of arm license of the
petitioner, which was approved by Senior
Superintendent of Police, Aligarh and the
two orders impugned in this writ petition
were passed.

7. The criminal case has not only
resulted
in
honourable
acquittal
of
petitioner but the trial Court has recorded
a finding of fact that report was lodged
2 All] Rakshapal Singh V. State of U.P. and others
881
falsely
against
petitioner
and
thus
proceedings under Section 182 IPC
should
be
initiated
against
the
complainant.

8. That being so, in absence of any
order setting aside the above findings
recorded by trial Court, this Court has no
reason to disbelieve that the aforesaid
entire
criminal
proceedings
initiated
against petitioner were fictitious and had
no substance at all. This also belied the
allegation contained in the suspension
order that the firearm was recovered by
local police though this fact has not been
proved or found correct by the trial Court.

9. Learned Standing Counsel also
could not tell, when the firearm was
already recovered by the police, as
mentioned in the order of suspension,
then where was an occasion to the
petitioner thereafter to show his firearm to
the
police
on
demand
and
how
proceedings under Section 25/30 Arms
Act could be made out. It appears that
Commissioner in deciding the appeal
though confronted with the judgment of
trial Court but chose to proceed with the
report of Senior Superintendent of Police
recommending cancellation of firearm
without applying his mind that the basis
of this report has disappeared and there
remains nothing and no material at all to
form even a subjective satisfaction that
firearm of the petitioner ought to be
cancelled. The impugned order of appeal,
therefore, clearly based on certain facts
and findings, which did not exist at all
and at least none has been shown based
on some material in the counter affidavit.

10. It is true that in the matter of
question of firearm license responsibility
of district administration is quite onerous.
The District Magistrate and local police is
responsible for maintaining law and order
and public tranquillity in the district for
the area of their jurisdiction, are liable to
keep a close watch over the activities of
the persons residing within that area and
in case any person is found to have some
criminal background or is involved in
unlawful, unsocial activities, it is open to
the competent authority to form opinion
as to whether such persons should be
allowed to keep firearm within him or not.
But this opinion cannot be founded
arbitrarily. There has to be some material
for formation of such opinion. It cannot
be fanciful or imaginary. A report
submitted by police officials by itself may
not form foundation unless such report is
based on some material. Where the basic
foundation of report submitted by police
disappear, it would result in vanishing the
legal value of such report in regard to the
recommendation
it
has
made
and
therefore, any mechanical acceptance and
action thereon also would get be vitiated
in law.

11. Possession of a firearm for the
purpose of personal safety is a facet of
fundamental right of life and liberty under
Article 226 of the Constitution. It cannot
be denied on fanciful, conjectural reasons.
One cannot lose sight of the fact that law
and order maintaining machinery in the
State is highly inadequate and the people
are heavily supposed to take steps for
their personal safety on their own. A
judicial notice can be taken of the fact that
for the total population of the State being
more than about 19.95 crores, the number
of police personnel in all the wings
available in the State is near about 2 lacs.
Per capita the availability of police
personnel is almost negligible. In these
circumstances, allowing the people to
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
have effective means of their personal
safety is of utmost importance. Possession
of firearm, therefore, should be a normal
condition unless shown otherwise. This
ought to be the approach of competent
authority under Arms Act while granting
license for firearm or renewing or
allowing it to continue.

12. Unfortunately, that is not so. The
matter of firearm is being dealt with by
respondents in a very fanciful and strange
manner having no reasonable nexus with
the purpose sought to be achieved. I really
failed to understand as to why the
Commissioner could not consider the
matter in correct perspective while
deciding appeal of the petitioner after
decision of Court in criminal case no.849
of 2008 (Case Crime No.400/07). This
has caused serious prejudice to the
petitioner, inasmuch as, he has been put in
a serious peril and his life have been
endangered
by
depriving
him
of
possession of a firearm on unsustainable
reasons.

13. The writ petition, in view of
above
discussion,
is
allowed.
The
impugned orders dated 08.07.2008 passed
by
Addl.
District
Magistrate
(Administration), Aligarh and 05.05.2010
passed
by
Commissioner,
Aligarh
Division, Aligarh (Annexures No.2 and 5
to the writ petition) are hereby quashed.
The petitioner shall be entitled to cost
which is quantified to Rs.25,000/-.

14. However, the State of U.P. shall
be at liberty to recover the amount of cost
from the official(s) concerned, who had
passed the impugned orders without
application of mind; after making such
enquiry, as is permissible in law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2011

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.

Civil Misc. Writ Petition No. 63419 of 2011

Deena Nath Pandey

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

 ...Respondents

Counsel for the Petitioner:
Sri Narendra Deo Upadhyay

Counsel for the Respondents:
C.S.C.

Arms Act, 1959-Section-14-Rejection of
application for non prohibited fire armon ground name of enemy not shownsuch
ground
not
available
under
statutory provision under Section 14order can not survive

Held: Para 8

The reasons given in the impugned order
for refusing the licence to the petitioner
are not covered by any of the grounds
given in section 14 of the Act on which
the licence may be refused. In my
opinion the respondent no. 2 failed to
consider and decide the petitioner's
application for grant of fire arm licence
keeping in view the provisions of Section
14
of
the
Act
and
rejected
the
petitioner's application arbitrarily which
has
rendered
his
order
totally
unsustainable.
Case law discussed:
AIR 1982 All. 283

(Delivered by Hon'ble B.K. Narayana,J.)

1. Heard learned counsel for the
petitioner and learned standing counsel
for
the
respondents.