Amar Singh Negi vs District Magistrate and Others

V.D. Misra, C.J.—The Petitioner challenges the cancellation of the arm license issued to him by the District Magistrate, Kinnaur.

License No. KNR-18/64 for a 12-bore single barrel breach loding gun was duly issued to the Petitioner in the year 1964. He had been keeping a gun under this license. On 15th February, 1974 a notice (Annexure-A) was received from the District Magistrate, Kinnaur District, asking the Petitioner to show cause s why the license should not be revoked u/s 17 of the Indian Arms Act, 1959, and the arm confiscated to the Government. The Petitioner duly showed cause but the District Magistrate, by his order (Annexure-B) dated 21st February, 1975, revoked the license. The Petitioner was allowed to sell his gun to some other license holder within six months failing which the gun was to stand forfeited to the Government. The Petitioner appealed to the Chief Secretary but in vain. He has now come to this Court praying for a writ of certiorari and/or other direction to the Respondents to quash and set aside the impugned order.

Mr. Prem Goel, learned Counsel for the Petitioner, contends that no valid notice was issued to the Petitioner. He also contends that the Respondents were under a duly to hold an enquiry into the matter before taking a decision. In other words, the, Petitioner has been denied an opportunity to meet the case set up against him. Mr. Paul, who appears for the Respondents, submits that the Petitioner''s license was cancelled under the provisions of Clauses (a), (b) and (d) of Sub-section (3) of Section 17 of the Arms Act. He says that there is enough evidence on record to show that the Petitioner has contravened the conditions of the license.

The show cause notice dated 15th February, 1974 issued to the Petitioner reads:

Whereas Shri Amar Singh resident of village Thangi, Tehsil Moorang, District Kinnaur a holder of one Gun license No. KNR-18/64 for one Shl 12 Gun has misused his weapon by allowing his brother Shri Prithipal Singh to shoot dead the dog of Shri Yashbir Singh, R/O Thangi thereby violating the conditions of the initial grant of the license.

Therefore, in exercise of the powers vested in me u/s 17 of the Indian Arms Act, I hereby require the aforesaid undersigned within a fortnight from the receipt of this notice and to show cause within the aforesaid period as to why his license should not be revoked and the arm confiscated to the Government.

The order canceling the license is dated 21st February, 1975. It reads:

Whereas it has been reported that Shri Prithipal Singh R/o village Thangi (Lamber), Tehsil Moorang who is at present employed in (sic) shot dead a dog of Shri Yashbir Singh R/o Thangi with the SBBL 12 bore gun of his brother Shri Amar Singh a holder of No. 18/KNP/64;

and, whereas from the report of the Tehsildar Moorang and the Station House & Officer, Pooh, it has been established that the gun of Shri Amar Singh was, in fact, used to kill a dog by his brother Shri Prithipa Singh;

and whereas the contention has been supported by the resolution dated 15th September, 1973 of the Gram Panchayat Thangi, and, the Superintendent of Police Kinnaur has also recommended the cancellation of the license;

and, whereas on the basis of the above facts, I am satisfied that the gun was misused by the brother of the license holder and hence the condition of the license has been in fact, violated.

Now, therefore, in exercise of powers vested in me u/s 17 of the Indian Arms Act, I hereby cancel the license. The license holder Shri Amar Singh, however, is allowed to sell his gun to some other license holder in six months, failing which it shall stand forfeited to Government.

It will be noticed that the show cause notice does not mention any specific condition of the license which is alleged to have been violated by the Petitioner. I find that even in the reply to the writ petition submitted by the Respondents, condition of the license or rule alleged to have been violated is not specified. I asked Mr. Paul, the learned Counsel for the Respondents, to let me know the particular rule or condition of the license which has been violated by the Petitioner. Mr. Paul stated that conditions Nos. 1 and 2 of the license as well as Clauses (a), (b) and (d) of Sub-section (3) of Section 17 of the Act have violated by the Petitioner.

Before I deal with the alleged violations, I will discuss the evidence collected against the Petitioner. I may point out that the report of the police, the Tehsildar and the resolution of the Panchayat relate only to the conduct of Prithipal Singh brother of the Petitioner. Annexure-RC is the resolution passed by the Gram Panchayat. It shows that Yashbir Singh''s dog was stated to have been shot dead at 1 A.M. in the night on 9th September, 1973. Yashbir Singh lodged a complaint with the Panchayat. A meeting of the Panchayat was held on 15th September, 1973. The resolution shows that the Panchayat accepted the statement of one Santosh Raj who only heard the gun-shot on that night. It also shows that the whole Panchayat was fed up with Prithipal Singh who stated to have been holding out threats to various persons in the village. The report of Sub-Inspector Babu Ram is based on the enquiries made by A.S.I Tara Chand. The relevant portion of the report Annexure-RA reads.:

From the report discreet enquiries made by A.S.I. Tara Chand, Incharge Police Post, Moorang. it has been revealed that Prithipal Singh, brother of Amar Singh R/o Thangi, who is holding a licence No. 18/KNR/64 valid upto 31st December, 1975 killed a domestic dog belonging to Yashbir Singh of the same village. Shri Amar Singh Licensee has disobeyed the provision of Arms Law by allowing his brother Prithipal Singh to handle his arm. Prithipal Singh is not also the retainer of the said arm.

Report of the Tehsildar is Annexure-RB. The relevant portion reads:

The matter was enquired into and it appears that Prithipal Singh resident of village Thangi (Lamber Hamlet) who is at present at Namgia in I.B. shot dead with the gun belonging to his brother Amar Singh, who is Veterinary Stock Assistant at Jangi, the dogof one Yashbir Singh. As such the representation of Shri Surat Singh is being sent to the Incharge Police Post Moorang for registration of a case u/s 428 I.P.C.

This is the evidence on the basis of which the show cause notice was issued and finally the license was cancelled. The reports of the Tehsildar as well as the police have no value since these are result of enquiries made by them. What kind of enquiries were made and who were the persons who were examined by them is not disclosed, The resolution of the Panchayat was passed behind the back of Amar Singh Petitioner and so is not binding on him. Moreover, the resolution shows that no one had seen Prithipal Singh firing a gun and killing the dog. The only fact which can be deduced for the Respondents is that Prithipal Singh is said to have admitted to the complainant Yashbir Singh that he had killed the dog with a gun.

Now, the killing of the dog with a gun does not necessarily mean that Prithipal Singh had used the gun belonging to his brother Amar Singh. Indeed, there is no evidence at all on record to show that the gun used by Prithipal Singh was the one which belonged to Amar Singh. Admittedly, nobody had seen Prithipal Singh firing the gun. So no one can say which gun Prithipal Singh actually fired. Apparently all the villagers are fed up of Prithipal Singh, and so they jumped to the conclusion that only he would have killed the dog at the dead of night. Be that as it may, by no stretch of imagination it can be held or reasonably concluded that the gun used in killing the dog was one belonging to Amar Singh Petitioner or that he had allowed his brother Prithipal Singh to use the gun.

Sub-rule (5) of Section 17 of the Arms Act, 1959, lays down the procedure which the licensing authority is required to follow before a license is revoked. It is in the following terms:

(5) Where the licensing authority makes an order varying a license under Sub-section (1) or an order suspending or revoking a license under Sub-section (3), it Shall record in writing the reasons there for and furnish to the holder of the license on demand a brief statement of the same unless in any ease the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.

The relevant provisions of Section 17, alleged to be violated, may be read at this stage:

(3) The licensing authority may, by order in writing, suspend a license for such period as it thinks fit or revoke a license,-

(a) if the licensing authority is satisfied that the holder of the license is 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 is of unsound mind, or is for any reason unfit for a license under this Act; or

(b) if the licensing authority deems it necessary for the security of public peace or for public safety to suspend or revoke the licence; or

* * * *

(c) if any of the conditions of the license has been contravened; or....

Mr. Paul states that the license has been cancelled under Clause (a) "for any reason unfit for a license under this Act." I am afraid this is not so. The show cause notice as well as the order of cancellation do not show that the District Magistrate was exercising his powers under this Clause and if he, in fact did exercise the powers under this Clause, then it was an illegal exercise of powers since no specific notice had been given to the Petitioner about the District Magistrate''s intention to use this power for canceling the license. Moreover under this Clause it was the duty of the District Magistrate to inform the Petitioner about the reasons for which he had considered the Petitioner unfit for a license under this Act. This has not admittedly been done. So, this does not help the Respondents.

Similarly, the District Magistrate does not seem to have exercised his powers in terms of Clause (b). For this he had to bring sufficient facts to the notice of the Petitioner on the basis of which it could be said that it was necessary for the security of public peace or for public safety to revoke the license.

In my view, the District Magistrate seems to have exercised the power only under Clause (d) which relates to the contravention of a condition of the license. But then neither the show cause notice nor the return of Respondents shows the particular condition of the license which is said to have been contravened. My attention was drawn by Mr. Paul to conditions Nos. 1 and 2 which are published in the form III of the Arms Rules, 1962. Condition No. 1 only states that the license is granted subject to all the pre visions of the Arms Act, 1959, and all the Arms Rules, 1962. If there was a violation of this condition, then again it was the duty of the Respondents to show which particular provision of the Act or the Rules has been violated by the Petitioner. None has been shown to me. So this condition cannot be said to have been violated. Condition No. 2 may be reproduced with advantage. It reads thus:

It covers only the person named, and the arms or ammunition described therein and such retainers (if any) as may be entered in column 6:

Provided that if the licensee is a recognised shikar agent in possession of a certificate to that effect from the Central Government he shall be able to lend his weapons covered by his license for use by any foreign tourist accompanying him and in possession of a shooting license under the local games rules, valid for the area where shooting by the latter is intended:

Provided further that the licensee shall be able to lend his weapon temporarily for a period not exceeding a fortnight for the purpose of sport only to a person lawfully entitled to possess such type of weapon and subject to the conditions that.-

(a) the weapon is used by the borrower in the presence of the license-holder or under his written authority, which shall show the number and other identification mark of the weapon and the period for which it is lent.

(b) in the event of the weapon being misused by, or stolen or lost due to the gross negligence of, the borrower, the license thereof shall be liable to be revoked; and

(c) the borrower shall, on demand, produce proof of such lending.

It is obvious that this condition relates to lending and borrowing of a weapon by the licensee to another license-holder. It also states that the license covers only the person named and also the retainers, if any, entered in Column 6 of the license. This has no relevance. It is not the case of the Respondents that the Petitioner had lent his weapon. 1, therefore, hold that the Respondents have failed to show that the Petitioner was guilty of contravening any condition of the license.

It has been suggested by Shri Paul that the conclusion arrived at by the District Magistrate that the Petitioner''s license should be cancelled in order to deprive Prithipal Singh of the use of the gun of the Petitioner is a reasonable one. It is submitted that Prithipal Singh being a terror and a bully in the village, it was necessary to deprive him of the gun of his brother. I am afraid, this is no reason at all. If Prithipal Singh had done anything wrong, he could be prosecuted, indeed the Tehsildar in his report ha stated that the matter had been reported to the police for registration of a case against him.

Simply because a brother of a license takes away the gun and uses it, the licensee cannot be pena1is for the same, On the other hand, the brother should have been prosecuted for possessing and using the arm without a valid license.

I find that adequate opportunity was not granted to the Petitioner to meet the case. It was necessary for the District Magistrate to hold an enquiry into the matter and give an opportunity to the Petitioner to test the evidence which w in his possession. The notice did not refer to any evidence. Nor the Petitioner had any opportunity to meet that evidence. To repeat, the impugned order shows that the cancellation is based on the report of the Tehsildar as well as the resolution passed by the Gram Panchayat. It was on this basis that the District Magistrate came to hold that Petitioner''s gun was misused by his brother. I have already discussed these facts which by no stretch of imagination can be said to show that Petitioner''s gun had been used by Prithipal Singh.

During the course of arguments Mr. Paul brought it to my notice that the Respondents had since parted with the gun in favour of Shri M.L. Joshi, then the Superintendent of Police, Kinnaur. When and under what circumstances the gun was handed over to Shri Joshi is not stated. If at all, this might show that a responsible police officer of the District had granted unto himself a very valuable weapon, which, I am told, is of foreign make, knowing full well that the matter is pending before the Court But I am not concerned at this stage about this aspect.

The writ petition is accepted and the impugned order canceling the Petitioner''s license is hereby quashed and set aside. The Respondents are directed to return the gun of the Petitioner within two months from today. The Petitioner will have his costs from the Respondents. Counsel''s fee Rs. 400.