High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.12067 OF 2021Piyush Anil Choudhary,Age 23 yrs., Occ. Business,R/o Plot No.15, Near Natraj Theatre,Madhav Colony, Dhule,Dist. Dhule. … Petitioner… Versus … 1The State of MaharashtraThrough its Divisional Commissioner,Nashik.2The District Magistrate/District Collector, Collector Office, Dhule,Dist. Dhule. 3The Superintendent of Police,Dhule, Dist. Dhule. … Respondents...Mr. V.S. Undre, Advocate for petitionerMr. V.M. Jaware, AGP for respondent Nos.1 to 3...ANDWRIT PETITION NO.12069 OF 2021Shubham Sunil Choudhary,Age 24 yrs., Occ. Business, 2WP_12067_2021+1_JdR/o Plot No.15, Near Natraj Theatre,Madhav Colony, Dhule,Dist. Dhule. … Petitioner… Versus … 1The State of MaharashtraThrough its Divisional Commissioner,Nashik.2The District Magistrate/District Collector, Collector Office, Dhule,Dist. Dhule. 3The Superintendent of Police,Dhule, Dist. Dhule. … Respondents...Mr. V.S. Undre, Advocate for petitionerMr. V.M. Jaware, AGP for respondent Nos.1 to 3...CORAM :S.G. CHAPALGAONKAR, J.RESERVED ON :28th JUNE, 2024PRONOUNCED ON :08th JULY, 2024JUDGMENT : 1Rule. Rule made returnable forthwith. Heard learned Advocatesfor the parties finally, by consent. 3WP_12067_2021+1_Jd2The petitioner in Writ Petition No.12067 of 2021 impugns theorder dated 16.03.2021 passed by Divisional Commissioner, Nashik in AppealNo.49 of 2020, thereby confirming the order dated 11.09.2020 passed byDistrict Magistrate, Dhule in Application No.D/Kaksh/MAG-1/SR/19/2019/Kavi/128/2020, thereby refusing to grant licence of revolver/pistol to thepetitioner. 3The petitioner in Writ Petition No.12069 of 2021 impugns theorder dated 16.03.2021 passed by Divisional Commissioner, Nashik in AppealNo.50 of 2020, thereby confirming the order dated 11.09.2020 passed byDistrict Magistrate, Dhule in Application No.D/Kaksh/MAG-1/SR/18/2019/Kavi/127/2020, thereby refusing to grant licence of revolver/pistol to thepetitioner. 4Mr. V.S. Undre, learned Advocate appearing for petitionerssubmits that petitioners’ family is engaged in the business of retail sale offoreign liquor and requires to handle huge cash. Criminals keep watch andthere are chances of robbery or extortion. In an incident a First InformationReport bearing Crime No.135 of 2017 at Chopda Police Station wasregistered and accused persons were convicted. The petitioners have beentrained to handle the weapon and certificate of training is issued by LethalForce Institute, Pune. Petitioners felt need of the weapon for self protection
Legal Reasoning
4WP_12067_2021+1_Jdand applied to District Magistrate, Dhule for grant of licence as per Rule 15read with Section 14 of the Arms Act. In pursuance of petitionersapplications, report was called from Superintendent of Police. There are noadverse remarks against the petitioners in the report submitted by saidauthority. However, learned District Magistrate vide his order dated11.09.2020 rejected petitioners’ applications. Petitioners assailed the order ofDistrict Magistrate in Appeal filed under Section 18 of the Arms Act beforeDivisional Commissioner at Nashik. Unfortunately, the Appeals came to bedismissed for selfsame reasons as mentioned in the order of DistrictMagistrate. 5Mr. V.S. Undre would submit that the authorities rejected theapplications on erroneous count, mainly observing that petitioners have notreceived any threat to their life and the nature of petitioners’ business doesnot warrant holding of weapon. He would submit that the licence may berefused for the reasons specified in sub-section (1) of Section 14 of the ArmsAct. However, refusal of petitioners’ applications is based on altogetherdifferent grounds than prescribed under sub-section (1) of Section 14 of theArms Act. To buttress his submissions he has placed his reliance onJudgment of this Court in case of Chandrakant @ ChandrashekharVeerbhadrapa Rachatte vs. The State of Maharashtra and others in Criminal 5WP_12067_2021+1_JdWrit Petition No.490 of 2008 decided on 18th September, 2008 (AurangabadBench) and Judgment in case of Sardar Gurtejpal Singh s/o Gurnaib SinghSidhu vs. The State of Maharashtra and others in Writ Petition No.3786 of2015 decided on 29th January, 2016 (Aurangabad Bench). 6Per contra, Mr. V.M. Jaware, learned AGP would justify theimpugned orders. 7Section 13 of the Arms Act, 1959 provides that the applicationfor grant of licence can be made to licencing authority in form, contain suchparticulars and be accompanied by such fee, if any, as may be prescribed.Sub clause II of Section 13 of the Arms Act prescribes for calling of the reportof officer in-charge of nearest Police Station. Sub clause II-A of the Arms Actprescribes for further inquiry by the licencing authority and then passing ofthe order granting or refusing the licence. Section 14 of the Arms Actprovides the reasons for refusals of the licences, which reads as under - “14. Refusal of licences. - (1)Notwithstanding anything in section 13, the licensing authorityshall refuse to grant -(a)a licence under section 3, section 4 or section 5 wheresuch licence is required in respect of any prohibited arms orprohibited ammunition;(b)a licence in any other case under Chapter II,(i)where such licence is required by a person whom the 6WP_12067_2021+1_Jdlicensing authority has reason to believe -(1)to be prohibited by this Act or by any other law for thetime being in force from acquiring, having in his possession orcarrying 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 thesecurity of the public peace or for public safety to refuse to grant suchlicence. (2)The licensing authority shall not refuse to grant any licence toany person merely on the ground that such person does not own orpossess sufficient property.(3)Where the licensing authority refuses to grant a licence to anyperson it shall record in writing the reasons for such refusal andfurnish to that person on demand a brief statement of the same unlessin any case the licensing authority is of the opinion that it will not bein the public interest to furnish such statement.”8Perusal of reasons as stated in the impugned orders shows thatDistrict Magistrate refused the licence referring to the circular dated31.03.2010 issued by Central Government, which prescribes certainguidelines for grant of licence. Consequently, the report of Superintendent ofPolice was called. The report suggests that the petitioners are not in cross orinimical terms with any one. There is no eminent threat to their life. Thebusiness of retail sale of foreign liquor or the requirement of handling hugecash itself cannot be a reason for grant of licence. The impugned ordersfurther state that the licence for acquisition and possession of the fire arm is 7WP_12067_2021+1_Jdonly a privilege and not the right comprehended by Article 21 of theConstitution of India. The perusal of the orders passed by the appellateauthority reiterates similar reasons while confirming the order of DistrictMagistrate. In this background, the reference can be given to theobservations of Delhi High Court in case of Vinod Kumar vs. The State andothers [Writ Petition (C) No.1631 of 2012] referred to paragraph No.7 -“7.The Next question which arises for consideration is as towhether the licence could be refused to the petitioner on theground that there was no specific threat to his life or property andthe law and order situation in the locality in which he was residingwas satisfactory. In my opinion, the fire arm licence cannot bedenied to a person, in whose case a situation contemplated by sub-section (1) of Section 14 does not exist, solely on the ground thatthere is no specific threat to him or his family members. A situationrequiring safety in the form of a fire arm cannot always beforeseen and may develop all of a sudden. For instance, there maybe an attempted burglary, dacoity, house breaking or robbery in thehouse of a citizen in the dead of the night or he may be subjectedto robbery, snatching, etc, while on the move. It is not possible fora police official to be present everywhere and every time to protectthe citizens and in fact it happens quite often that the policearrives at the scene only after the crime is already committed.Though it is an undisputed responsibility of the State to protect thelives and property of the citizens, the harsh reality is that the Statedoes not have an impressive record in this regard. In fact, noperson can predict when, where and at what time and in which 8WP_12067_2021+1_Jdform, he may face a threat to his life or property. Therefore, as aprudent citizen, he would be justified in taking adequate steps toprotect himself and his property and such steps would includeacquiring a licensed weapon so as to avoid any crime against hisbody and property. It is the applicant's own perception of threat tohis life and property which needs to be considered by the LicensingAuthority in the light of law and order situation, prevailing in thelocality and various other factors.”The aforesaid observations clarifies that a person cannot bedenied licence only for the reason that he has no specific threat. Theapplicant licence holder is best Judge of threats to his life and property andthe situation requiring the fire arm which may develop all of a sudden.Similarly, this Court in case of Chandrakant Rachatte (supra) observed inparagraph No.7 as under - “7.When a statute prescribes the grounds on which discretionis to be exercised, then such a discretion is to be exercised inaccordance with the provisions of the statute and not on any otherground not mentioned in the said statute. Perusal of the impugnedorders would reveal that the authority has not refused to grantlicence on the grounds mentioned in Sub-Section 1 of Section 14of the Arms Act. The order of the Additional District Magistratewould further show that the contention of the present petitionerregarding settlement of the dispute and the criminal cases arisingout of family dispute has also not been considered. In that view ofthe matter, I find that the discretion has not been exercised by theauthorities in a proper manner.” 9WP_12067_2021+1_Jd9The aforesaid observations of this Court clearly demonstrate thatthe licencing authority has to exercise the discretion in accordance with thestatutory scheme. However, it is apparent that the impugned orders arepassed on erroneous considerations beyond the scope, conditions for refusalstipulated under Section 14 of the Act. 10The affidavit-in-reply filed on behalf of respondents state thatthe petitioners have not filed documentary evidence regarding business ofretail sale of foreign liquor, so also the handing of huge cash. Pertinently, therespondent authorities are attempting to supplement the reasons which arenot mentioned in the impugned orders. It is trite that the quasi judicialauthority cannot supplement the reasons in support of its order by filingaffidavit. The reference can be given to the law laid down by the Hon’bleSupreme Court of India in the case of Mohinder Singh Gill and another vs.The Chief Election Commissioner, New Delhi and others [AIR 1978 SC 851],wherein it has been held that - “The second equally relevant matter is that when a statutoryfunctionary makes an order based on certain grounds, its validitymust be judged by the reasons so mentioned and cannot besupplemented by fresh reasons in the shape of affidavit orotherwise. Otherwise, an order bad in the beginning may, by thetime it comes to court on account of a challenge, get validated byadditional grounds later brought out. We may here draw attentionto the observations of Bose J. in Gordhandas Bhanji [AIR 1952 SC
Decision
10WP_12067_2021+1_Jd16] (AT P. 18):"Public orders, publicly made, in exercise of a statutoryauthority cannot be construed in the light of explanationssubsequently given by the officer making the order of what hemeant, or of what was in his mind, or what he intended to do.Public orders made by public authorities are meant to have publiceffect and are intended to effect the acting and conduct of those towhom they are addressed and must be construed objectively withreference to the language used in the order itself."11Petitioners have placed on record Income Tax Returns so as todemonstrate the volume of their business etc. In that view of the matter, theorders passed by respondent authorities cannot be sustained. However, itwould be appropriate to relegate the matters for re-consideration to DistrictMagistrate, who shall apply his mind afresh in light of aforesaid observationsand additional material pertaining to nature of business and transactions ofthe petitioners. Resultantly, the writ petitions partly succeed. Hence,following order. ORDER1Writ Petitions stand partly allowed. 2The impugned orders are quashed and set aside. 11WP_12067_2021+1_Jd3The matters are remitted back to respondent No.2 for decidingapplications of petitioners in accordance with observations made above. 4Petitioners shall be at liberty to place on record additionalmaterial/evidence depicting their business transactions, requirement ofhandling huge cash or any other material to justify need of weapon withinthe period of four weeks from date of this order. 5Petitioners shall appear before respondent No.2 on 11.07.2024. 6Respondent No.2 shall take his decision within the period ofthree months from the date of petitioners appearance. 7Rule is made absolute in the above terms. ( S.G. CHAPALGAONKAR ) JUDGEagd