Joginder Singh vs State of Punjab

G.S. Chahal, J.

Joginder Singh in this petition under Section 482 Cr.P.C. seeks quashing of FIR No. 124 dated 8.8.1991 registered for an offence under Section 25 of the Indian Arms Act at Police Station, Division No. 4 Jalandhar City.

M/s Doaba Arms Company, G.T. Road, Jalandhar City is a partnership firm in which petitioner is one of the partners. The firm started its business in the year 1948. The shop was originally taken on rent from A. David but at present Jagdeep Goyal is the owner of the shop. This firm was dealing in the sale and purchase of arms and ammunition. The petitioner has, however, been staying in Delhi and the business of the firm was being looked after by a Manager. That every year the licence was being sent for renewal and this process continued till the end of year 1988. No initiation was ever received with respect to cancellation of the licence. That Dr. Jagdeep Goyal was interested in getting the shop vacated and he having influence over the police and other authorities got the locks of the shop broken on 15.12.1989 in the absence of the partners of the firm and took into possession articles including a shot gun, 75 boxes containing shot gun cartridges. 12 bore. The shop was locked and Dr. Jagdeep Goyal initiated ejectment proceedings. The goods recovered from the shop were handed over to the officer incharge, P.S. Division No. 4, Jalandhar City by the Sub Divisional Magistrate. A letter dated 13.12.1989 Annexure P1 was addressed by Smt. Raj Kaur to the District Magistrate wherein she apprised him of the steps that had already been taken by the Licencee to secure transit licence from Delhi for taking the arms and ammunition lying at the shop at Jalandhar to Delhi and that 37,500 cartridges of foreign origin had already been sold to ammunition dealers of Delhi and the authorities at Delhi had been moved for permission to remove these cartridges to Delhi for delivery to the purchasers. Having entertained apprehension that the goods may be sold, the Licencee moved CWP No. 2079 of 1990 before the Hon''ble High Court. On account of moving of C.W.P. the police authorities registered a case vide FIR No. 124 (now the impugned FIR), copy of the same is Annexure P2. A show cause notice under Section 25 of the Arms Act has been served upon the petitioner and Smt. Raj Kaur. However, the same were not served. That although the District Attorney had given an opinion that action should be initiated under Section 30 of the Arms Act, a case under Section 25 had been registered. That respondents were taking a stand that licence has not been renewed after December 1983, the possession of arms and ammunition had become totally unauthorised bringing the partners of the firm within the scope of Section 30 or Section 25 of the Arms Act. In the return filed in C.W.P. No. 2079/90, it had been admitted that the petitioners had applied for renewal of dealer''s licence which lapsed in 1983 84 and under condition 1(c) of the licence, the firm discontinued the business for a period exceeding six months the licence automatically ceased to be in force. That since it was an admitted fact that the petitioner had been applying for renewal of licence right from the year 1984 to 1989, no order refusing to renew the licence or revoking the licence having been passed, the application shall be deemed to be still pending. That since all the questions were pending decision in the civil writ, no recourse to the criminal proceedings could be taken. The petition has been contested by the respondents.

The petitioner is mainly relying upon the observations of Justice Bedi in C.W.P. No. 2079 of 1991 Annexure P7. The learned Judge after considering the various contentions raised by the petitioner and by the State had given the following direction :

"As the question raised by the parties, which are based on facts, have not been gone into by the District Magistrate, I direct that the entire matter be put before the District Magistrate, Jalandhar who will redetermine the matter keeping in view all the argument raised in this petition or any other argument raised before him. The District Magistrate will decide the matter by passing a speaking order within a period of four weeks from the date of communication of this order after affording an opportunity of hearing to the petitionerfirm. The petitioner will be at liberty to inspect all the records of the case that they wish to and no impediment will be put in their way for that purpose."

In view of the directions given by this Court, Mr. N.S. Kang, District Magistrate, Jalandhar, has passed an order dated 18th March, 1992 that he found that the petitioner had been submiting applications for the renewal of the licence regularly to the office. That the Delhi address of the partner was known to the office and as such recourse to service through affixation was not justified. That the underlying factor which prompted action under Section 22 of the Arms Act was the possibility of the Arms and Ammunition (Act) falling into the hands of undesirable elements. It was thus found that the arms and ammunition could not be confiscated. Since the petitioner had already applied for a transit licence, it was ordered that if other conditions and formalities had been complied with, the licence be issued. With respect to the renewal of the licence, it was recorded that it is only the State Government which is competent to grant the licence and the report of D.M''s office for renewal of the licence has already been sent to the Government.

Mr. R.S. Bindra, the learned counsel for the petitioner, has relied upon the observations of their Lordships of Supreme Court in Murarilal Jhunjhunwala v. State of Bihar, 1991 Criminal Law Journal, 450. This case related to grant of licence under Bihar Trade Articles (Licences Unification) Order, 1984 and it was observed that where a Dealer is granted a licence for one year and he applies for licence in subsequent years and also deposits the fee and carries on business under bona fide belief that he would be granted licence and the Licensing Authority neither rejects the application nor points out any defect, the Dealer cannot be prosecuted for not obtaining licence and a direction was also issued that the licence be granted on the basis of application already moved.

I accept the argument of learned counsel that the principle underlying this authority is attracted to the facts of the present case. The petitioner had moved the authorities for renewal of the licence and he continued to keep the arms and ammunition in his custody under the belief that licence shall be renewed. Since the application for renewal of licence was neither rejected nor the petitioner was informed at his address as given to the office, the petitioner had a bona fide belief that he was entitled to keep the arms and ammunition in its possession. He had thus a complete defence (based on the observations of the District Magistrate in his order dated 18th March, 1992) that he could keep the arms and ammunition in his possession. The prosecution on the basis of the impugned FIR thus cannot end in conviction. Continuation of any such proceedings shall be abuse of the process of Court.

I hereby allow the petition and quash the impugned FIR alongwith all consequent proceedings. The petition stands disposed of.