The Divisional Commissioner,Division Aurangabad.Mr. Mahadeo v. Nagargoje
Legal Reasoning
Corrected Cri WP1262-22- Arms Licence.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1262 OF 2022Vaijnath s/o Sitaram Phad,Age 65 years, Occu: Agri/Business/Social WorkR/o Khadgaon Tq. Gangakhed,District Parbhani...PetitionerVERSUS1.The State of MaharashtraThe Collector/District Magistrate,Parbhani2.The Divisional Commissioner,Division Aurangabad.Mr. Mahadeo V. Nagargoje, Advocate for the Petitioner,Mr. N. D. Batule, APP for the Respondents StateCORAM : Y. G. KHOBRAGADE, J.RESERVED ON : 13.11.2024PRONOUNCED ON : 25.11.2024JUDGMENT:- 1.Rule. Rule made returnable forthwith and with the consent of boththe parties heard finally.2.By the present petition under Article 227 of the Constitution ofIndia, the Petitioner takes exception to the order dated 12-08-2022 passedby Respondent No. 2 - Divisional Commissioner and Appellate AuthorityPage 1 of 14 Corrected Cri WP1262-22- Arms Licence.odtunder the Arms Act confirming the order dated 01-02-2022 passed by theRespondent No. 1 District Magistrate.3.In nutshell, it is the grievance of the petitioner that, he wasemployed in Co-operative Department of the Government for the years1983 to 2012 and worked at several places in Maharashtra. He is havinglanded property at village Khadgaon Tq. Gangakhed Dist. Parbhani. Inaddition to that, he is doing the business of plotting. He is involved insocial work and in the year 2019, he contested parliamentary election. Hefrequently visits his village from Mumbai.4.Since, there was danger to his life, he had applied for Fire Armslicence in the year 1997. After scrutiny and verification, on 10-03-1997,the Respondent No. 1 - District Magistrate, Parbhani had granted Armslicence to him for 32 Bore Revolver No. A 85116 for the period of oneyear, which was renewed till 31-12-2019 and said fact was informed to theconcerned authorities and request was made for registration (nomination)of Arms licenses with the Licensing Authority at Mumbai. However, duringpendency of said application, on 25-11-2021, the Dy. Commissioner ofPolice (Head Quarter-I) was informed regarding the conviction of thepetitioner in connection with Crime bearing No. 11 of 1999 for theoffences punishable u/s 7(2), 13(1)(2) of the Prevention of CorruptionPage 2 of 14
Legal Reasoning
Corrected Cri WP1262-22- Arms Licence.odtAct, 1988. Being aggrieved by the said order, the petitioner filed Cri.Appeal No. 267 of 2011 and his sentence came to be suspended duringpendency of Appeal. 5.It is the contention of the petitioner that, some delay was causedwhile moving an application for registration of Arms Licence. However, on25-11-2021, the Commissioner of Police, Grater Mumbai rejected saidapplication on ground of conviction of the petitioner for the offences u/s7(2), 13(1)(2) of the Prevention of Corruption Act, 1988 in connectionwith Crime No. 11 of 1999 and an inordinate delay was caused whilesubmitting an application for registration of Arms licence. Being aggrievedby the order dated 25-11-2021, the petitioner preferred an appeal u/s 28of the Arms Act, 1959 before the Appellate Authority - Respondent No. 2.On 12-08-2022, the learned Appellate Authority passed the impugnedorder and confirmed the order dated 01-02-2022 passed by theRespondent No. 1, being aggrieved by the same the petitioner has filedthis petition.6.Mr. M. V. Nagargoje, the learned counsel appearing for the petitionercanvassed that, the petitioner had not apply for new licence, but appliedfor renewal of Arm licence which was already granted to him in the year1997 and since then he has renewed the same time to time till 31.12.2019Page 3 of 14 Corrected Cri WP1262-22- Arms Licence.odttherefore, notification dated 31.03.2010 issued by the Central Governmentfor issuance of new licence is not applicable. Further, on oral instructionsfrom the employee of the Respondent No. 1, the petitioner had applied forregistration (nomination) of Arm Licence with the Licensing Authority atMumbai because, it is required to intimate the licensing authorityregarding the fire arm where the licence holder resides. However, on23.11.2021, the Licensing Authority, Mumbai turned down the request ofthe petitioner merely on ground that, the petitioner was convicted for theoffence u/s 7(2), 13(1)(2) of the Prevention of Corruption Act, 1988,which is nothing but abuse process of law. 7.The learned counsel for the petitioner further canvassed that, on30.12.2013, the petitioner had submitted an application before the Dy.Commissioner of Police (Headquarter-I), Greater Mumbai, however, saidapplication was decided on 23-11-2021, after lapse of 8 years and refusedregistration of license at Mumbai. Thereafter, the petitioner applied forrenewal of Arms Licence before the Respondent No. 1 - District Magistrate,Parbhani on 1-12-2021. On 20-12-2021, the Respondent No. 1 issuedshow causes notice dated 20-12-2021 and called upon the petitioner tosubmit cause, as to why his Arm Licence should not be cancelled.Accordingly, the petitioner submitted his cause on 28.02.2021. However,on 01.02.2022, the Respondent No. 1 cancelled his arms licence.Page 4 of 14 Corrected Cri WP1262-22- Arms Licence.odtTherefore, the petitioner preferred an Appeal before the Respondent No.2, however, on 12.08.2022, the Respondent No. 2 passed the impugnedorder and dismissed his appeal without considering the provisions of law. 8.The learned counsel appearing for the petitioner further submitsthat, the fire Arm licence was granted in favour of the petitioner in theyear 1997 for his personal safety due to danger to his life because of hisinvolvement in social, political as well as plotting business. Therefore,both the authorities below could have considered right to life and libertyguaranteed under Article 21 of the Constitution of India and merelybecause the criminal case is pending, the provisions of Sec. 17 of the ArmsAct would not attract. Therefore, prayed to quash and set aside theimpugned order dated 12-08-2022 passed by the Respondent No. 2Divisional Commissioner and order dated 01-02-2022 passed by theRespondent No. 1 District Magistrate.9.To buttress these submissions, the learned counsel appearing for thepetitioner relied on Judgment in Cri. W.P. No. 594 of 2013 dated 15th July,2016, Ajay Jayawant Bhosale Vs. The Commissioner of Police, Pune Cityand others passed by Division Bench of this Court (Coram: Naresh H. PatilAnd Prakash D. Naik JJ.), wherein it is observed in Para Nos. 11 & 12 asunder:Page 5 of 14 Corrected Cri WP1262-22- Arms Licence.odt"11. The question, therefore, arises as to whether there wassufficient material placed before the Commissioner of Policefor arriving at subjective satisfaction that continuation oflicence or renewal would be endangering public peace orpublic safety. It seems that the show-cause notice was issuedby the Commissioner, Pune consequent to filing ofapplication by the petitioner to the Home Department of theState Government for getting all India arms licence.Nevertheless at any stage the licensing authority aftergetting subjectively satisfied and on the basis of materialplaced before it could revoke licence under Section 17 of theAct but whether there was sufficient material with thelicensing authority to pass order of revocation. 12. The right to life and liberty are guaranteed under Article21 of the Constitution of India. Arms licence is granted forpersonal safety and security after due enquiry by theauthorities in accordance with provisions contained in theArms Act, 1959. The provisions of Arms Act with regard tosuspension or cancellation of Arms licence cannot beinvoked lightly in an arbitrary manner. The provisions of theArms Act particularly Section 13 to 17 indicate that once alicence is granted under the Act, the same shall be renewedfrom time to time unless there exist a ground of refusal asenumerated under Section 14 of the Act. Protection to life,property of citizen is responsibility of the State. It is onlywhen person apprehends that machinery of State would notcome to his help for protection, he/she applies for licenceunder the Act. The provisions of Section 17 A of the ArmsAct indicate that arms licence can be cancelled or suspendedif the licensing authority finds it necessary for the security ofpublic peace or public safety. Merely because a criminal caseis pending, the provisions of Section 17 of the Arms Actwould not be attracted. Such provisions would be attractedin case the licensing authority finds that continuance oflicence is detrimental to public peace or public security andsafety. But the authority concerned will have to record afinding that how and under what circumstances and in whatPage 6 of 14 Corrected Cri WP1262-22- Arms Licence.odtmanner possession of arms licence could be contrary to theprovisions of Section 17 B of the Arms Act. Each case isrequired to be considered on its own merits."10.Per contra, Mr. N.D. Batule, the Assistant Public Prosecutorsupported the findings recorded by both the authorities and canvassedthat, since 1985, the petitioner has been staying at Mumbai, therefore, itwas necessary for the petitioner to obtain the Arm Licence from the PoliceCommissioner, Grater Mumbai, however, on 10-03-1997, the petitionerobtained the Arm Licence from the Respondent No. 1 - District Magistrate,Parbhani. Thereafter, the Police Commissioner, Greater Mumbai received aproposal from the Respondent No. 1 District Magistrate, Parbhani fortaking entry vide it's proposal dated 27-11-2017. Accordingly, the PoliceCommissioner, Greater Mumbai conducted an enquiry through the localPolice Station. During said enquiry it was revealed that, though thepetitioner is residing at Flat No. 703, B-Wing, Skypan Co-op. Hsg., Socy.,Sub T.V. Lane, Andheri (W) Mumbai, but the petitioner has obtained anArm Licence from the Respondent No. 1. So also, there is a delay insubmitting a proposal for taking entry and the petitioner was convicted inCrime No. 11 of 1999 registered against him for the offences punishableu/s 7 (2), 13(1) (3) of the Prevention of Corruption Act. The petitionerchallenged his conviction by preferring an Appeal bearing No. 444 of2011. Therefore, on 12-08-2022, the Respondent No. 2 AppellatePage 7 of 14 Corrected Cri WP1262-22- Arms Licence.odtAuthority passed the impugned order affirming order dated 01-02-2022passed by the Respondent No. 1 on grounds that, (i) the Respondent No. 1refused to renew the Fire Arm licence due to adverse enquiry reportsubmitted by the Police Commissioner, Greater Mumbai (ii) the Armlicence was renewed till 31.12.2019, but after lapse of 2 years therefrom,application for renewal of licence was submitted and the petitioner has noseriousness about the Arm licence (iii) as per Sec. 14 (B) (2) of the ArmsAct, it is detrimental to public peace or public security and safety, refusalto renewal of licence by the Respondent No. 1 authority is proper andlegal (iv) on 31st March, 2010, the Central Government issued a Circularand framed guidelines for issuance of Fire Arms Licence wherein it ismandatory on the part of Police authorities to disclose about danger to lifeof person who seeks for Arm Licence. Therefore, the learned APPcanvassed that, the petitioner has not fulfilled any criteria for renewal ofArm licence, hence, the petitioner is not entitled for renewal of ArmLicence and prayed for dismissal of the petition. 11.It is not in dispute that, the petitioner was employed in Co-operativesector of the Government for the year 1983 to 2012. After attending theage of superannuation, he retired and he is residing at Flat No. 703, B-Wing, Skypan Co-op. Hsg., Socy., Sub T.V. Lane, Andheri (W) Mumbai. Thepetitioner is native of the village Khadgaon Tq. Gangakhed Dist. ParbhaniPage 8 of 14 Corrected Cri WP1262-22- Arms Licence.odtand he is having a landed property at his native place. The petitionerfrequently visits at his village from Mumbai. Though, the petitioner hasclaimed about danger to his life, but no any such incident was brought onrecord. 12.It is a matter of record that, in the year 1997, the petitioner hadapplied for Fire Arms licence. On 10-03-1997, the Respondent No. 1 -District Magistrate, Parbhani granted Arms licence in his favour for 32Bore Revolver No. A 85116 for the period of one year, which was renewedtill 31-12-2019. However, the Respondent No. 1 failed to submit proposalto the Commissioner of Police, Greater Mumbai about registration ArmLicence from the year 2013, but during pendency of said proposal, on25.11.2021, the Dy. Commissioner of Police (Head Quarter-I) wasinformed regarding conviction of the petitioner in connection with CrimeNo. 11 of 1999 for the offences punishable u/s 7(2), 13(1)(2) of thePrevention of Corruption Act, 1988. The petitioner challenged hisconviction in by preferring Cri. Appeal No. 267 of 2011, wherein sentenceof the petitioner came to be suspended during the pendency of the Appeal.13.On 01-02-2022, the Respondent No. 1 - District Magistrate passedan order holding that, on 10.03.1997, the Petitioner obtained fire ArmLicence, but he has belatedly submitted an application for registrationPage 9 of 14 Corrected Cri WP1262-22- Arms Licence.odtwith the Commissioner, Greater Mumbai. The Petitioner was convicted forthe offence punishable under Section 7(2)(2), 13(1) and 73 of thePrevention of Correction Act in Crime No. 11 of 1999 and Cri. Appealbearing No. 267 of 2011 is pending against the order of conviction andsentence against the present petitioner is suspended. So also, fire armlicence was renewed till 31.12.2019 and there is no further renewal. ThePetitioner had submitted an application for registration of fire arm withCommissioner of Police Greater Mumbai, within whose jurisdiction thePetitioner is residing. After lapse of two years from the the date of expiryof the Arms license, the petitioner submitted the application for itsrenewal. So also, considering his age, the Petitioner is not competent tohandle the fire arm. Therefore, Respondent No. 1 refused to renew thelicence by invoking powers under Section 17(3) of the Arms Act and Rule17 of the Arms Rules, 2016.14.On 12.08.2022, Respondent No. 2 - Appellate authority passed theimpugned order and confirmed the order dated 01.02.2022 passed byRespondent No. 1 considering various provisions of section 17(3) of theArms Act and Rule 17 of the Arms Rules, 2016. Respondent No. 2,Appellate authority also considered the conviction of the Petitioner underthe provisions of Prevention of Corruption Act as well as guidelines givenunder the notification dated 31.03.2010, issued by the CentralPage 10 of 14 Corrected Cri WP1262-22- Arms Licence.odtGovernment, wherein it has been provided that while granting licence forfire arm, the Police enquiry report should disclose danger to the life of theapplicant who is seeking the fire arm licence and Respondent No. 1,competent authority refused to renew the licence after considering theadverse report submitted by the Deputy Commissioner of Police(Headquarter-1), Greater Mumbai. So also, the petitioner is residing inMumbai City since 1985, therefore, it was necessary to obtain licence fromthe competent authority at Mumbai. The Petitioner obtained the licencefrom Respondent No. 1 on 10.03.1997 and submitted an application forregistration after lapse of considerable period. Further, the fire armlicence of the Petitioner was renewed lastly till 31.12.2019, butsubsequently after more than two years, the petitioner seeks to renew thelicence.15. As per provisions of Section 15 (3) of the Arms Act, every licenceshall, unless the licensing authority for reasons to be recorded in writingotherwise decides in any case, be renewable for the same period for whichthe licence was originally granted and shall be so renewable from time totime, and the provisions of Sections 13 and 14 shall apply to the renewalof a licence as they apply to the grant thereof. Therefore, it is clear thatrenewal of licence can be denied only when the licencing authority hasreason to believe that for any reason the Petitioner is unfit for the licence.Page 11 of 14 Corrected Cri WP1262-22- Arms Licence.odtThe nature of right available to licensee for its renewal is quite differentfrom the right seeking licence. In a judicial Review Administration Action(IV Ed., at page 223) it is made clear that "Non-renewal of an existinglicence is usually a more serious matter than refusal to grant a licence inthe first place. Unless the licensee has already given understanding whenhe was granted the licence that renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss andperhaps cast a slur on his reputation. It may, therefore, be right to imply aduty to hear before a decision not to renew when there is a legitimateexpectation of renewal, even though no such duty is implied in the makingof the original decision to grant or refuse the licence." Therefore, it isclear that the possession of a fire arm after expiry of licence, when theapplication for its renewal has not been made before such expiry, wouldbe breach of Section 15 of the Arms Act and provision for renewing licensefor further period on payment of fees does not save the situation. Thisview is supported by the judgments in the cases of Emperor Vs. Baxi RramAIR 1942 Lahor 300 and Malcolm Vs. Emperor, AIR 1933 Calcutta 718.16. Rule 24 of the Arms Rules, 2016 provides that every licence, may, atits expiration and subject to the same conditions (if any), as to the grantthereof, be renewed by the authority mentioned in Schedule II asrenewing authority within a period of thirty days of receipt of the policePage 12 of 14 Corrected Cri WP1262-22- Arms Licence.odtreport. In the case in hand, the Petitioner sought renewal of licence afterthe lapse of two years period from the date of expiry of licence. 17. No doubt, in the case of Ajay Jayawant Bhosale, cited supra, theDivision Bench of this Court has held that the provisions of Arms Act withregard to suspension or cancellation of Arms licence cannot be invokedlightly in an arbitrary manner and as per Section 17 of the Arms Act,Arms licence can be cancelled or suspended if the licensing authority findsit necessary for the security of public peace or public safety. Merelybecause a criminal case is pending, the provision of Section 17 of the ArmsAct would not attract. However, in the case in hand, it appears that thePetitioner obtained the fire arms licence from respondent No. 1 on10.03.1997, but after lapse of 10 years, the Petitioner submitted anapplication to the Commissioner of Police, Greater Mumbai forregistration, as he was residing within its jurisdiction. Not only this, on13.11.2017, the Police Commissioner, Greater Mumbai sought a reportfrom District Magistrate, Parbhani in respect of registration of arm licenceat Mumbai. Though, the Fire Arms licence was expired on 13.12.2019, butthe Petitioner submitted an application for renewal of licence after lapse oftwo years. The petitioner has not given sufficient explanation as to why hehas submitted an application for renewal of licence after expiry of twoyears.Page 13 of 14 Corrected Cri WP1262-22- Arms Licence.odt18. Since both the authorities below declined to renew the fire armlicence in favour of the Petitioner on various grounds includingmaintaining security of public peace or public safety, therefore, I do notfind that the impugned orders are perverse, illegal or bad in law and nogrounds are set out to interfere with the said orders/findings. Resultantly,the Writ Petition fails and accordingly, it is dismissed.19. Rule is discharged.( Y. G. KHOBRAGADE, J. )JPChavanPage 14 of 14