Ratnesh Dwivedi Advocate vs The Commissioner, Lucknow Division, Lucknow and Another

Hon''ble Devendra Kumar Arora, J.—Notice on behalf of opposite parties has been accepted by learned Chief Standing Counsel. By means of present writ petition, the petitioner is challenging the order dated 7.6.2012 passed by the Commissioner, Lucknow Division, Lucknow in Appeal No. 818 of 2012 as well as order dated 7.5.2012, passed by the District Magistrate, Unnao by which petitioner has been refused license for second fire-arm.

Facts of the case, in nutshell, are that the petitioner applied for Arms License to the Licensing Authority/District Magistrate, Unnao for NP Bore Rifle on 30.10.2007. The petitioner is already having an Arms License for a pistol and the same has never been misused by him. However, the said application for arms license was rejected vide order dated 7.5.2012 on the ground that petitioner is already having a license for pistol and, therefore, his application is unjustified. Being aggrieved with the order dated 7.5.2012, the petitioner preferred an appeal u/s 18 of the Arms Act before the Commissioner, Lucknow Division, Lucknow (opposite party no. 1) on 29.5.2012 which was dismissed vide order dated 7.6.2012 on the ground that as the petitioner failed to furnish good and specific reasons for issuance of Arms License, whereas he is already having a license for pistol, the order passed by the District Magistrate suffers from no legal infirmity. Being aggrieved, petitioner has approached this Court.

Submission of learned counsel for the petitioner is that there are plethora of judgments by various High Courts as well as the apex Court expressing the view that a person cannot be denied a fire-arm license merely on the ground that he is already having one firearm license. Further submission is that as per provisions of sub-section (3) of Section 2 of the Arms Act a person can acquire or possess three firearm licenses at any time. In this background, submission of learned counsel for the petitioner is that both the orders are cryptic, erroneous and unsustainable in the eyes of law.

I have heard learned counsel for parties and perused the record.

As in the present writ petition a basic question of law is involved as to whether a person can acquire more than one firearm license as well as fire-arm.

It is not disputed that the petitioner is already holder of a an Arm License for a pistol and he has applied for another license for NP Bore Rifle to the Licensing Authority. Sub-section (2) of Section 3 of the Act provides that a person can acquire or possess three fire arms licenses at any time. The provisions of Section 3 of the Act reads as under:

Licence for acquisition and possession of firearms and ammunition.-1[((1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:

Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder. 2[(2) Notwithstanding anything contained in subsection (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms:

Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that subsection.

(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central government using a point 22 bore rifle or an air rifle for target practice.

(4) The provisions of sub-sections (2) to (6) (both inclusive) of Section 21 shall apply in relation to any deposit of firearms under the proviso to subsection (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that Section.

The identical question was considered by the learned Single Judge in case of Ram Khelawan Misra Vs. State of U.P. and Another, . The relevant paras 6 & 10 of the said judgment read as under:

In the present case, the District Magistrate has in his order stated that the S.D.M. and the Superintendent of Police have written ''No Objection'' on the application of the petitioner, but that was not a recommendation for the grant of a licence. He has ultimately observed that the need of the applicant was not genuine. It would, therefore, be seen that the order passed by the District Magistrate does not come under any of the clauses of Sec. of the Act. The expression to be for any reason unfit for a licence under the Act is not synonymous with the applicant not having genuine need. Section 14 of the Act prohibits the grant of a licence where the person is under some disability, or is of unsound mind or where he is such type of person who may endanger the public peace or public safety. The plea that the petitioner does not have a genuine need cannot be equated with any of the clauses under sec. 14 of the Act. There is no provision in sec. 14 of the Act to refuse a licence if the need of the applicant is not genuine. A Division Bench of this Court in the case of Ram Shankar Vs. State of U.P., , has laid down that the absence of genuineness of the need is not a ground for refusing a licence under Sec. 14 of the Act. Lack of genuineness of the need is, therefore, not one of the grounds for refusing a licence.

Section 14 of the Act commences with a non obstante clause (notwithstanding anything in Sec. 13) and then lays down the grounds for refusing to grant the licence. Since the grant of a licence can be refused only under the provisions of Sec. 14 and its sub-clauses, I do not find any provision which permits the licensing authority to refuse the grant of a licence on the ground that the applicant did not establish a genuine need.

In the case of Sunil Shukla, Advocate Vs. State of U.P. and Others, it has been held that a person having arm license, can make another application as well as can acquire and possess three arm licenses and three fire-arms and in view of Section 3 of the Act.

The relevant para reads as under:

I have considered the submissions of the parties and have perused the record. From the perusal of the Act, it is clear that a person who is having arm licence, can make another application and can acquire and possess three fire-arms and licences in view of Section 3 of the Act. Even the proviso requires a person having more than three arms on the date of amendment of the Act of 1983 which came into force, to surrender more than three arms. Thus, the acquiring and possessing of more than one arm is not prohibited. On the other hand, it is permitted. From the perusal of Section 3 of the Act, it appears that it does not provide that for acquiring a licence for the second arm, the applicant has to disclose some special reason. In case, the law does not provide or prescribe, in that circumstances, the question is whether the authorities below can reject the application filed by a person disclosing this fact that he is having a licence of a particular arm. The application of other fire-arm made by the petitioner could have been rejected by respondents on the ground that the police report was not submitted in his favour. But this in not the position in the present case. The police authorities have submitted a report in favour of the petitioner. Therefore, as the order passed by the District Magistrate does not disclose any reason for refusing the licence for possessing the DBBL gun by the petitioner, the only reason assigned in the impugned order is that the petitioner has not disclosed any special reason for acquiring the second arm licence. If law does not prohibit the petitioner from obtaining another arm licence, it could not have been refused by the respondents on the ground that special reasons to be recorded were required to be intimated in the application made by the petitioner. In view of the aforesaid fact, the order passed by the District Magistrate dated 1.12.2008 cannot be sustained.

Further, in the case of Wasim Ahmad vs. State of U.P. & others, reported in 2010 (2) JIC 585 (All) this Court has held in para 12 which reads as under:

Para-12- A Division Bench of this Court in the case of Ram Shankar Vs. State of U.P., , has laid down that the absence of genuineness of the need is not a ground for refusing a licence u/s 14 of the Act. Lack of genuineness of the need is, therefore, not one of the ground for refusing a licence.

In the case of Om Prakash vs. State of U.P. & others, reported in 2011 (29) LCD 279 this Hon''ble Court considered the question that if a person is already having an arms license and the same is renewed from time to time and on account of pendency of a criminal case, whether his application for second arms license can be rejected, the concerned paras 21 & 22 of the judgment read as under:

Further in the present case there is only one criminal matter against the petitioner and in which the police has submitted his final report. Moreover, he is a holder of an arms license in respect to S.B. 12 Bore Gun, granted in his favour in the year 2002 subsequently renewed as per the provisions of Sub Section 3 of Section 15 of the Act, the said Section provides that the licence which has been granted shall be so renewable from time to time and the provisions of Section 13 and 14 of the Act shall apply to the renewal of license as they may apply to grant thereof.

Reading the provisions of the Section 19 (3) and the provisions in respect to grant of fresh licence as provided u/s 13 of the Arms Act, the action on the part of the O.P. No. 3 to refuse the grant of second licence to the petitioner is an action which is contrary to law, because as per the Sub-Section 3 of Section 2 of the Act a person can acquire or possess three fire arms licences at any time so the orders which are under challenge in the present writ petition are arbitrary in nature and cannot sustain.

From perusal of the impugned order it is evident that the licensing authority as well as the Appellate Authority acted against the statutory provisions of The Arms Act, 1959 and the reasons given for refusal of the licence of second fire-arm is not sustainable in the eyes of law. In view of the above, writ petition is allowed. The impugned orders dated 7.6.2012, passed by the opposite party no. 1 in Appeal No. 818 of 2012-13 as well as the order dated 7.5.2012, passed by the opposite party no. 2 are hereby quashed. The matter is remanded back to the Licensing Authority/District Magistrate, Unnao to consider afresh in accordance with law in respect to grant of arms licence to the petitioner in response to his application submitted for the said purpose expeditiously, say, within period of four months from the date of receiving the certified copy of the order.