Md. Sahanawaz Akhtar vs The State Of Bihar & Ors.

Heard learned counsel for the petitioner and learned counsel for the State.

In the instant writ petition, the petitioner has sought the following relief:-

The case of the petitioner, in brief, is that he applied for grant of an N.P. Bore Revolver/Pistol licence before the District Magistrate, Gaya in the year 2017 for the safety of his life and property. Pursuant to enquiry directed by the Senior Superintendent of Police, Gaya, the S.H.O., Civil Lines P.S. examined the application on the prescribed 11-point format and opined that the petitioner has no criminal antecedent and good character. The application, so recommended, was further examined and recommended by the S.D.P.O. Town, Gaya and the Sub-Divisional Officer, Sadar, Gaya, and forwarded to the District Magistrate, Gaya. Later on, the petitioner appeared before the District Magistrate, Gaya on 30.07.2019 in connection with the hearing of his application but he did not receive any communication of the order passed, and upon visiting the office of the District Magistrate came to know that the arms application had been rejected on the grounds that the police report did not reflect any threat perception, that no criminal incident had occurred with the petitioner, and that the nature of his business did not speak to grant of licence. Further, the petitioner's appeal against the said order, being Arms Appeal No. 194/2022, was rejected by the Commissioner, Magadh Division, Gaya, affirming the order of the District Magistrate.

Learned counsel for the petitioner submitted that the S.H.O., Civil Lines clearly stated in its report that the applicant has good moral character and that there is no complaint against him either on police record or in the locality where he is residing. The arms application, after due examination, was recommended by the S.H.O., Civil Lines, the S.D.P.O. Town, Gaya, and the Sub-Divisional Officer, Sadar, Gaya, and forwarded to the District Magistrate, Gaya. It was also submitted that the cultivation/land of the petitioner falls under Tekari Police Station area, which is a Naxal-affected area and a stronghold of Naxalites, and that the petitioner, being an agriculturist and businessman, is in need of arms for the safety of his life and property in the said area. Despite such recommendation, the licensing authority-cum-District Magistrate, Gaya rejected the arms application, which is contrary to the said Act. The licensing authority is entitled to refuse an application only on grounds falling within the parameters laid down in Section 14 of the Arms Act, but the grounds on which the District Magistrate refused to issue the licence are not among those enumerated therein.

Learned counsel for the petitioner further submitted that the Commissioner, Magadh Division, Gaya, Respondent No. 3, misinterpreted Rule 12(3)(a) of the Arms Rule, 2016, which lays down that the nature of business or job has to be assessed by the District Magistrate and does not speak to threat perception at all. Despite this, the Arms Appeal was rejected on the ground of threat perception. The petitioner also submitted that a coordinate Single Bench of this Court, in Vijay Kumar Singh v. State of Bihar (C.W.J.C. No. 10784 of 2022), dealt with and relied upon the relevant paragraphs of that matter to hold that threat perception is not necessary for consideration of grant of an arms licence, and the writ in that matter was allowed accordingly, a photocopy of the said judgment was placed on record in Arms Appeal No. 194/2022 for the convenience of Respondent No. 3, but it was completely ignored, notwithstanding that it was submitted to be the guiding factor for deciding the matter in the interest of justice.

Learned counsel for the State/Respondents submitted that the District Magistrate, Gaya, while passing the order dated 30.07.2019 in Arms Licence Case No. 76 of 2019, discussed the police report as well as the other materials available on record, along with the decisions of the Hon'ble Allahabad High Court in C.W.J.C. No. 4046/2014, Sushil Ahmad v. State of U.P., and in L.P.A. No. 7587/2018, The State Government v. Deepak Kumar. On this basis, he passed a reasoned and speaking order having no defect in it, which, on perusal, appears to be proper, logical and legal in the circumstances of the whole case. The Commissioner, Magadh Division, Gaya, likewise, after hearing the petitioner at length, was pleased to pass an order that is reasoned and speaking in its nature, having no defect in it. Both the District Magistrate, Gaya and the Commissioner, Magadh Division, Gaya applied their judicial mind and, considering the whole materials available on record, passed reasoned and speaking orders which cannot be said to be illegal and improper.

Learned counsel for the State/Respondents further submitted that the petitioner has not complied with the mandatory provision under Rule 10(1) of the Arms Rule, 2016. In the absence of such compliance, read with Rule 10(3) of the Arms Rule, 2016, the District Magistrate, Gaya cannot proceed ahead with the matter of issuing a licence to the petitioner. Since the Central Government has not issued any notification regarding training of arms, it is a vacuum period, and it would not be proper for the District Magistrate, Gaya to issue a licence in the absence of such Arms Training Certificate.

Having heard learned counsel for the parties and having perused the materials on record, it becomes important to reiterate that, it is a settled position of law that the right to bear arms is not a fundamental right available to citizens, and that the grant, refusal, renewal or cancellation of an arms licence remains a privilege regulated by statute under the Arms Act, 1959 — one that is nonetheless bounded by well-defined statutory and judicial safeguards, summarized below:

Applying the above to the facts of the present case, this Court finds that the rejection of the petitioner's application by the District Magistrate, Gaya, and its subsequent affirmance by the Commissioner, Magadh Division, Gaya, rested substantially on the absence of threat perception — this despite a favourable recommendation from the S.H.O., Civil Lines, which had been duly forwarded through the S.D.P.O. Town and the Sub-Divisional Officer, Sadar, Gaya. Equally, the objection now raised by Respondent No. 2 regarding non-compliance with Rule 10(1) of the Arms Rule, 2016 does not survive scrutiny, since the State's own Supplementary Counter Affidavit admits, in paragraph 7, that the Central Government has not issued the notification contemplated under Rule 10(3) of the Arms Rule, 2016 prescribing the effective date and duration of the safety training course.

In these circumstances, this Court finds that the impugned order dated 30.07.2019 passed by the District Magistrate, Gaya in Arms Licence Case No. 76 of 2019, and the appellate order dated 07.09.2023 passed by the Commissioner, Magadh Division, Gaya in Arms Appeal No. 194/2022 affirming the same, are unsustainable.

Accordingly, the order dated 30.07.2019 passed by the District Magistrate, Gaya in Arms Licence Case No. 76 of 2019, and the order dated 07.09.2023 passed by the Commissioner, Magadh Division, Gaya in Arms Appeal No. 194/2022, are hereby quashed.

The District Magistrate, Gaya is hereby directed to reconsider the application of the petitioner, taking into account the facts that the petitioner is an agriculturist and a businessman who requires protection in an area where the naxal movement has not been completely eradicated.

Accordingly, with the aforesaid observations and directions, the present writ petition stands allowed.

Pending I.A.s, if any, stand disposed of.