Ashiq Hussain vs Commissioner, Moradabad Division and Others

A.P. Sahi, J.—Heard Shri Udit Chandra holding brief of Shri Subodh Kumar, learned Counsel for the Petitioner and the learned standing counsel.

This writ petition arises out of proceedings under the Arms Act, whereby the licensing authority has cancelled the arms licence of a D.B.B.L. gun of the Petitioner.

The appeal filed by the Petitioner has met the same fate. The ground for challenge is that there is only a single incident reported against the Petitioner and in the said incident the matter was foreclosed after a compromise was entered into between the parties. Learned Counsel for the Petitioner contends that no ground of disturbing peace and tranquillity was made out, and the question of involvement in one criminal case, against the Petitioner, is a single incident of law and order, which could not have been made the basis for cancellation.

This petition was filed in the year 1992. Inspite of 17 years having lapsed, no counter-affidavit has been filed on behalf of the State. In such a situation there is no option for this Court except to dispose of the writ petition finally at this stage. The writ petition was entertained and an interim order was passed on 23.9.1992, whereby the operation of the impugned order was directed to remain stayed for a certain period.

I have perused the order of the District Magistrate as also the order of the learned Commissioner. The charges levelled against the Petitioner were confined only to the involvement of the Petitioner in a solitary criminal case, which has already been settled outside Court and on the basis of the said compromise the Petitioner has been discharged. Further, the order u/s 107/116, Code of Criminal Procedure had lapsed keeping in view the period for such orders can be passed and as such in that view of the matter there was absolutely nothing existing so as to warrant the authority to proceed to cancel the licence of the Petitioner. A perusal of the impugned orders indicate that the Petitioner had allegedly used his fire arm to threaten his opponents in a Gaon Sabha meeting. The said incident indicated hereinabove has already been compromised. In such matters this Court has to find out as to whether a licence for a firearm can be allowed to be retained if there is an element of disturbance of public peace and tranquillity. In the case of Illam Singh v. Commissioner, Meerut Division, Meerut and Ors. 1986 AWC 1166 , the distinction between law and order and public order has been explained. The ratio in the case of Dr. Ram Manohar Lohia Vs. State of Bihar and Others, and followed later on in a large number of decisions by the Apex Court as well as this Court also explain the said distinction.

The mere involvement in a solitary criminal case cannot be a ground for cancellation of a firearm licence as held by this Court in case of Mohd. Haroon v. District Magistrate, Siddharth Nagar 2003 (1) ACJ 124, unless and until it is shown on the basis of material on record that there was grave danger to public law and order. In the instant case, it is only a solitary incident, which was not arising out of any disturbance of public law and order, that has been made the basis for ordering cancellation.

Having considered the matter on facts as well as in law, this Court finds that the impugned orders dated 20.12.1988 and 26.8.1992 are unsustainable and are accordingly set aside. The arms licence of the Petitioner shall stand restored.

The writ petition stands allowed in the light of the aforesaid observations made hereinabove.