Kulvanta Singh vs State Of Uttarakhand

Sharad Kumar Sharma, J

The present writ petition has been preferred by the petitioner who holds a arms licence for Rifle, as well as, Revolver bearing licence no. AV-99/5253, licence no. 69/G-11 and Revolver no. 4418, licence no. 13861.

The respondent had issued the notice under Section 17 of the Arms Act wherein he has expressed that in view of certain proceedings conducted against the petitioner under Section 116 (3) of Cr.P.C. and the report as given by the Sub-Divisional Magistrate on 11.06.2013 the petitioner's licence deserved to be surrendered. In response to the said show cause notice as issued to the petitioner on 15.07.2013 in Case No. 52/09 of 2013 'State vs. Sri Kulvanta Singh' the petitioner had given a detailed reply on 27.01.2013, wherein he has taken a stand that there may not be any apprehension of breach of peace merely because of the fact that there are certain inter se dispute pertaining to the immovable property between him and other claimants of the same. There were various other grounds which were taken to the effect that the entire action is motivated, as it has been preceded on the basis of certain complaints which has been maliciously submitted against the petitioner by the opponents of the petitioner and thus the notice dated 15.07.2013 deserved to be rejected.

It is the case of the petitioner that without considering the grounds taken by the petitioner in reply submitted by him on 27.01.2013 and without considering the explanation given by the petitioner, the impugned action has been taken of canceling his arms licence exclusively on the basis of the procured report dated 11.06.2013, which is said to have been submitted to the District Magistrate, wherein, a reference has been made that as against the petitioner the proceedings under Section 107/116 of Cr.P.C. is pending. In reply to it, learned counsel for the petitioner had submitted that there is no such proceedings ever initiated or pending against the petitioner under Section 107/116 of Cr.P.C., which has been filed and pending against him and in support of the said argument he has placed on record on the basis of the information which he has received under the Right to Information Act on 20.08.2015 wherein it has been informed in reply that there is no such proceedings under Section 107/116 of Cr.P.C., which is pending against him and answer is in negative.

Despite of the said fact being pleaded in his objection the District Magistrate had proceeded to pass the impugned order on 28.09.2015 by virtue of which the petitioner's arms licence had been cancelled. On perusal of the impugned order of the cancellation of the licence yet again the foundation and the only basis for cancellation of the licenses is based upon the purported pendency of the proceedings under Section 107/116 of Cr.P.C. against the petitioner and it was specifically contended that consequent thereto the proceedings under Section 116(3) of Cr.P.C. was also conducted against him, which constituted to be the basis of passing the impugned order on an apprehension of breach of peace.

The contention of the petitioner is that the finding which has been recorded in the impugned order is absolutely perverse and without application of mind and had been rendered even without going through the actual records about the pendency of any criminal proceedings, as no details pertaining to those proceedings, i.e. date of offence, case number etc. have been referred or mentioned in the impugned order. Further more, if the impugned order is taken into consideration in its totality, the District Magistrate has cryptically cancelled the licence of the petitioner, even without considering or recording any finding on the objections/reply dated 27.01.2013, which were submitted by the petitioner to the show cause notice issued to him under Section 17 of the Act.

However, the petitioner being aggrieved against the order dated 28.09.2015 passed by the District Magistrate canceling his arms licence the petitioner has preferred an Appeal under Section 18 of the Act of 1959, before the Commissioner and in the memo of the appeal too he has reiterated the objections taken by him to the show cause notice and had specifically taken a stand that there happens to be no involvement of his in the commission of any offence under Section 107/116 of Cr.P.C., as would be apparent from the information supplied to petitioner under the Right to Information Act and if at all it was then it ought to have reflected the case crime number initiated against the petitioner should have given details of it. The Commissioner too without considering the grounds taken by the petitioner while challenging the impugned order passed by the District Magistrate on 28.09.2015 had proceeded to dismiss the Appeal No. 03 of 2015-16 'Kulvanta Singh vs. State of Uttarakhand' by the impugned order dated 03.10.2017.

Even if the judgment of the appellate authority is taken into consideration judicially apart from the fact that though it was affirming the order of the District Magistrate, it does not reflect that even the appellate authority has applied its mind at all and had considered the grounds taken by the petitioner and more or less in a cryptic manner and without any rationale and application of mind had rather blatantly has accepted the findings, which has been recorded by the District Magistrate with regards to the pendency of the proceedings under Section 107/116 of Cr.P.C. and the subsequent action taken under Section 116(3) against the petitioner.

Looking to the reasons assigned by the District Magistrate, as well as by the appellate authority, the orders of cancellation of arms licence cannot be passed on a mere apprehension of a breach of peace, there has had to be a specific allegation of misutilization of the arms, which is not the case at hand, for which the licence was issued and mere lodging of a complaint by the opponent, who is in dispute in relation to immovable property, too cannot constitute as to be a reason for cancelling the arms licence. Even the appellate court also ought to have considered and should have been conscious of the fact that he was sitting in an appeal against the order of a District Magistrate and being a Court of Appeal he was liable to record the finding of facts as well as on law by considering the grounds and evidences on record. The same is lacking in the impugned order and it is rather a reiteration of the allegation, which was leveled in the show cause notice issued under Section 17 of the Arms Act on 15.07.2013 that too without considering or recording any finding on the reply or grounds, as well as, its nothing but a reiteration of the finding given by the District Magistrate in the impugned order dated 28.09.2015 without application of mind and assigning plausible reason.

Even otherwise also looking to the reference to the proceedings under Section 107/116 of Cr.P.C. as referred in the show cause notice, which is the foundation of impugned action, that happens to be that of 2013 and particularly as per the information received by the petitioner under the Right to Information Act on the date of passing of the impugned order there were no such proceedings initiated or pending against the petitioner, thus, the impugned order was based on non existing grounds. Hence, the same could not have constituted as a ground for cancellation of the arms licence.

Consequently, this Court is of the view that both the courts, i.e. the court of the District Magistrate, as well as, that of the Appellate Court of Commissioner, had passed the impugned orders without application of mind and even without considering the pleadings, the objection taken by the petitioner and the material brought by him on record before the appellate court, as well as, before the District Magistrate.

Thus, the writ petition succeeds and the impugned order of cancellation of the arms licence dated 03.10.2017, the order dated 28.09.2015 passed by the District Magistrate in Case No. 52/09 of 2013 'State vs. Sri Kulvanta Singh' as well as the appellate order dated 03.10.2017 passed by the Commissioner, Kumaon Division in Arms Appeal No. 03/2016-16' 'Sri Kulvanta Singh vs. State' are set aside, and as a consequence thereto, the licence as issued in favour of the petitioner are restored back subject to the condition that there is no other criminal proceedings or any other legal impediment in holding the arms licence.

Thus, the writ petition is allowed. However, there would be no order as to cost.