Special Civil Application No.8691 of 2011

29th August, 2011

Petitioner Counsel: Mr. JAY M. THAKKAR
Respondent Counsel: Mr. RASHESH RINDANI

Cases Cited:
Ganesh Chandra Bhatt Vs. District Magistrate, Almora and others, AIR 1993 Allahabad 291 [Para 5,16]
Abdul Hameed Vs. District Magistrate/ Collector, Allahabad and another, 1994 Cr.L.J. 531 [Para 5,16]
K.S.Abdulla Vs. District Collector and others, AIR 1972 Kerala 202 [Para 5,16]
State of U.P. Through Secy. Home Dept. Lucknow and others Vs. Jaswant Singh Sarna, AIR 1968 Allahabad 383 [Para 5,16]

JUDGMENT

-Rule. Mr.Rashesh Rindani, learned Assistant Government Pleader, waives service of notice of Rule for the respondents. On the facts and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being heard and finally decided.

2. The challenge in this petition, preferred under Articles 226 and 227 of the Constitution of India, is to order dated 16.12.2008, passed by the District Magistrate, Navsari, whereby, the application dated 04.08.2008, made by the petitioner for grant of an Arms licence has been rejected. The order dated 04.02.2011, passed by the State Government in Appeal No.81/09, rejecting the appeal preferred by the petitioner against the order of the District Magistrate, is also impugned.

3. The brief factual background of the case is as follows:

The petitioner is a Life Member of the Billimora Rifle Club, and has been awarded a number of certificates and medals in several Rifle Shooting competitions. The mother of the petitioner held an Arms licence for a .12 Bore DBBL Rifle upto her death, at the age of 87 years. The petitioner was the retainer of the said firearm, throughout the lifetime of his mother. After the death of the petitioner's mother, the firearm was surrendered to the Police authorities. The petitioner made an application dated 04.08.2008, to respondent No.2 (District Magistrate, Navsari), for grant of a licence for the firearm in question, for the purpose of self-protection and for participation in Sports activities. Respondent No.2, in exercise of power under sub-section (3) of Section 14 of the Arms Act, 1959 ("the Act" for short), rejected the application on the ground that the age of the petitioner is 63 years, and the reasons for which the petitioner has applied for grant of the licence, are not tenable. The petitioner preferred an appeal against the said order of the District Magistrate to the State Government, as provided in Section 18(1) of the Act. The appeal has been rejected by order dated 04.02.2011, passed by the Deputy Secretary, Home Department, upholding the order passed by the District Magistrate, on the ground that no special reasons exist for grant of an Arms licence to the petitioner. Aggrieved by the above-mentioned orders, the petitioner has approached this Court, by way of the present petition.

4. Mr. Jay M. Thakkar, learned advocate for M/s. S.G. Associates, learned counsel for the petitioner, has submitted that the petitioner has been a member of the Rifle Club, Billimora, since the year 1988, and has participated in several Rifle Shooting competitions for which he has received many awards and certificates. The petitioner has applied for grant of an Arms licence mainly for the purpose of participating in Sports activities such as Rifle Shooting, and also for self-protection. Earlier, the mother of the petitioner was holding a licence for the same firearm, upto her death at the age of 87 years, and the petitioner was the retainer for the said firearm, throughout. The petitioner does not fall under any of the prohibitions contained in Section 9 of the Act, and just because he had attained the age of 63 years at the time of making the application, he cannot be refused an Arms licence on this ground. The respondents are not justified in rejecting the application of the petitioner, as also the appeal preferred by him, on this ground. There is no provision in the Act that states that a licence cannot be granted to a person after he attains a particular age. It is further submitted that the petitioner does not have any criminal antecedents and there is no negative report by the Police authorities, therefore, the refusal of the respondents to grant a licence to the petitioner, is unjustified and unreasonable. It is contended that as the impugned orders are not in consonance with the provisions of the Act, they may be quashed and set aside, and the petition, allowed.

5. In support of the above contentions, the learned advocate for the petitioner has relied upon the following judgments:

(i) Ganesh Chandra Bhatt v. District Magistrate, Almora and others - AIR 1993 Allahabad 291

(ii) Abdul Hameed v. District Magistrate/ Collector, Allahabad and another - 1994 Cr.L.J. 531

(iii) K.S.Abdulla v. District Collector and others - AIR 1972 Kerala 202

(iv) State of U.P. Through Secy. Home Dept. Lucknow and others v. Jaswant Singh Sarna - AIR 1968 Allahabad 383

6. The petition has been strongly opposed by Mr.Rashesh Rindani, learned Assistant Government Pleader, by submitting that the impugned orders have been passed after due application of mind. The application of the petitioner for grant of a licence has been rightly rejected, as the Competent Authority has not found any satisfactory ground for issuance of the said licence to the petitioner. It is further contended that power vested in respondent no.2 by Section 14(3) has been properly exercised, and the Court may not interfere.

7. I have heard the learned counsel for the respective parties, and perused the averments made in the petition and documents annexed thereto.

8. The short issue that arises for consideration is whether the rejection of the application for issuance of the firearm Licence to the petitioner, on the ground that he is 63 years of age, is in accordance with the provisions of the Act, or not.

9. In order to decide this question, it would be appropriate to refer to the relevant provisions of the Act.

10. Section 3 relates to Licence for acquisition and possession of firearms and ammunition. It stipulates that no person shall acquire, possess or carry any firearm or ammunition, unless he holds a valid licence, issued in accordance with the provisions of the Act, and the Rules made thereunder.

11. Section 9 contains the prohibitions for acquisition, possession, sale or transfer of firearms to young persons, and certain other persons. This section has a bearing on the point in issue, and is reproduced hereinbelow:

"9. Prohibition of acquisition or possession by, or of sale or transfer to young persons and certain other persons of firearms, etc.-

(1) Notwithstanding anything in the foregoing provisions of this Act-

(a) no person,-

(i) who has not completed the age of twenty-one years, or

(ii) who has been sentenced on conviction of any offence involving violence or moral turpitude to imprisonment for any term, at any time during a period of five years after the expiration of the sentence, or

(iii) who has been ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974 ), a bond for keeping the peace or for good behaviour, at any time during the term of the bond,

shall acquire, have in his possession or carry any firearm or ammunition;

(b) no person shall sell or transfer any firearm or ammunition to, or convert, repair, test or prove any firearm or ammunition for, any other person whom he knows, or has reason to believe-

(i) to be prohibited under clause (a) from acquiring, having in his possession or carrying any firearm or ammunition, or

(ii) to be of unsound mind at the time of such sale or transfer, or such conversion, repair, test or proof.

(2) Notwithstanding anything in sub-clause (i) of clause (a) of sub-section (1), a person who has attained the prescribed age-limit may use under prescribed conditions such firearms as may be prescribed in the course of his training in the use of such firearms:

Provided that different age-limits may be prescribed in relation to different types of firearms."

12. As is evident from a perusal of the above provision, Section 9(1)(a)(i), prohibits a person who has not completed the age of 21 years from acquiring, possessing or carrying, a firearm or ammunition. This prohibition would not apply in the case of the petitioner, who was 63 years of age at the time of making the application. The prohibition contained in Section 9(1)(a)(ii) would also not apply to the petitioner, as it is not the case of the respondents that he has been convicted or sentenced for an offence pertaining to violence or moral turpitude, at any point of time. It is relevant to note that the Police authorities have not given any adverse opinion regarding the petitioner, who does not have any criminal antecedents. Similarly, the prohibition contained in Section 9(1)(a)(iii) would not be applicable to the petitioner, as he has never been ordered to execute a bond for keeping the peace, or for good behaviour as per the provisions of Chapter VIII of the Code of Criminal Procedure, 1973. The petitioner is an adult and is of sound mind and is not prohibited by any ground stated in Section 9 of the Act, from acquiring, possessing or carrying a firearm.

13. Section 13 of the Act pertains to grant of licences. It reads as below:-

"13. Grant of licences:- (1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.

(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.

(2A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:

Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.

(3) The licensing authority shall grant-

(a) a licence under section 3 where the licence is required-

(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection:

Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or

(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;

(b) a licence under section 3 in any other case or a licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same."

14. As per the provisions of Section 13, the Licencing Authority, namely the District Magistrate, is required to conduct an inquiry, if found necessary. After considering the report of the inquiry, he is empowered to either grant the licence, or to refuse the same. In the present case, the District Magistrate has asked the Police authorities and the Sub Divisional Magistrate, to submit their opinions regarding the antecedents of the petitioner, and his suitability for grant of a firearm Licence. The Superintendent of Police, Navsari, has, by his report dated 02.01.2008, opined that the petitioner may not be granted an Arms licence, as he is 63 years of age. This ground appears to have weighed with the District Magistrate for rejecting the application made by the petitioner, as is clear from a reading of the impugned order dated 16.12.2008. The District Magistrate has, further, come to the conclusion, on the basis of the opinion of the Superintendent of Police, that there are no reasonable grounds for grant of a licence to the petitioner.

15. The contingencies wherein a licence may be refused by the licencing authority are set out in Section 14, which reads as below:

"14. Refusal of licences.- (1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant-

(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;

(b) a licence in any other case under Chapter II,-

(i) where such licence is required by a person whom the licensing authority has reason to believe-

(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or

(2) to be of unsound mind, or

(3) to be for any reason unfit for a licence under this Act; or

(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement."

Section 14 sets out the grounds on which a firearm licence may be refused. The reason for refusal to grant a firearm licence to the petitioner is not that he is prohibited by any provision of the Act or any other law from holding a licence, or that he has asked for a licence in respect of a prohibited firearm, or is of unsound mind or, is unfit for grant of licence under the Act for any other reason. Further, the application of the petitioner has not been rejected on the ground that such refusal would be necessary for the security of the public peace, or for public safety. The reason for rejection of the application is that the petitioner was aged 63 years, which does not find mention in Section 14 of the Act. There is no other provision in the Act that states that a licence cannot be granted to a person who attains a particular age.

16. The decisions relied upon by the learned advocate for the petitioner may now be referred to.

"17. The situation in the country today is that law and order has deteriorated to a very great extent. Mafia type gangs have established a reign of terror in many cities, and violence, kidnapping and extortion are rampant. Some parts of the country are terrorist infested, and even in other parts hoodlums with country made weapons are on the rampage. Peaceful and law abiding citizens are often afraid to stir out of their houses after dark or to go to certain places. The recent murder of the entire family of a Doctor in Allahabad whose throats were cut is a glaring example of the prevailing situation in which peaceful and law abiding citizens are placed. When we interpret an Act we must take into consideration the existing social conditions and we cannot interpret it in a hyper technical or highly abstract manner which has no connection with the existing- social reality. Hence in my opinion the correct interpretation of Sections 13, 14 and 15 of the Arms Act is that every application for a non prohibited weapon must normally be allowed, and this must be done within three months of filing of the said application. If the application is rejected, this must be done only in very exceptional cases for good reasons recorded in writing and communicated to the applicant within three months of the application.

..... ..... .....

75. The most important difference between the 1959 Act and the 1878 Act, to my mind, is that the former makes a distinction between prohibited arms and non-prohibited arms, while in the latter there is no such distinction. In my opinion the correct interpretation of the Arms Act, 1959 is that under its provisions an application for a prohibited arms is not to be ordinarily allowed, whereas an application for a non-prohibited arm is ordinarily to be allowed. Such an interpretation will be in consonance with the Statement of Objects and Reasons, as well as the prevailing social conditions. Hence the word 'unfit' in S. 14 must be interpreted to mean that the applicant for some exceptional and strong reason has disqualified himself from holding a licence e.g. If he is a hardened criminal or is involved in heinous crimes, otherwise all applications for licences for non-prohibited arms must be allowed."

(2) In Abdul Hameed v. District Magistrate/ Collector, Allahabad and another (supra), it has been observed as below:

"6. Section 13 of the Act provides that the licensing authority after such enquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to other provisions of this Chapter, by order in writing, either grant the licence or refuse to grant the same. The object of obtaining the report from the police is only to find out the antecedent of the person seeking licence. A person not having a bad antecedent is entitled to grant of the licence unless there is any thing against him which may desentitle him from holding the licence. The discretion conferred on the licensing authority is not an absolute discretion but is a guided one and he is required to record reasons in writing for refusal to grant the licence as the same has been made subject to scrutiny by the appellate authority."

(3) The Kerala High Court, in K.S.Abdulla v. District Collector and others (supra), has held:

"4. The statutory requirement under Section 14(3) is that the licensing authority shall record in writing the reasons for such refusal. The further requirement that the applicant should be furnished on demand with a brief statement of the reasons unless the authority is of opinion that it is not in public interest to furnish such statement, may well be left out as there is neither allegation nor proof of the demand. The recording of reasons is obligatory; and what is more, having regard to the nature of the power entrusted, it is also necessary that the licensing authority should apply its mind and satisfy itself on the question as to whether the security of public peace or public safety demanded a refusal of the licence. From these points of view, the counter-affidavit is unenlightening as to whether, and if so how, the licensing authority satisfied himself on these aspects, and as to whether the reasons were recorded in writing for the refusal. Counsel who appeared for the respondent made available the files with him. I shall merely place it on record, that it is seen that certain reports were called for and after the receipt of these reports and communications exchanged, there is nothing in the files produced to indicate that the licensing authority applied its mind to the contents of the reports and satisfied itself as to whether the security of the public peace or public safety required a refusal of the licence. On the other hand the files would show a report at a certain page and immediately thereafter, the draft of an order, which eventually materialised in the form of Ex. P-2. On this state of the record, I am satisfied that there has not been an application of the mind of the licensing authority to the requirement of Section 14(1)(b)(ii) of the Act. Nor was there any proper compliance with the requirement of Section 14(3).

5. On these grounds, I allow this writ petition and quash Ext. P-2 and direct the 2nd Respondent to dispose of Ex. P-1 application in accordance with law. There will be no order as to costs."

(4) In State of U.P. Through Secy. Home Dept. Lucknow and others v. Jaswant Singh Sarna (supra), it has been held as below:

"8. Chapter III contains provisions relating to licences. Section 18 makes provision for the grant of licences. Upon application made to the licensing authority, the licensing authority is bound to grant a licence for acquiring and possessing a fire arm or ammunition by a citizen of India in respect of a gun used for protection or sport or for crop protection or a rifle to be used for target practice by a member of a Rifle Club or a Rifle Association licensed or recognised by the Central Government. It is obligatory upon the licensing authority to grant a licence also where an applicant for a licence satisfies the licensing authority that he has good reason for obtaining it. It is clear that Section 13 recognises a right to a licence. Apart from cases where the fire arm is required for protection or sport or crop Protection or for target practice in a Rifle Club or Rifle Association, any one is entitled to it if he has good reason for obtaining it. There must be good reason for obtaining the licence, and that condition regulates the grant of a licence. The requirement has been imposed to prevent an abuse of the right by members of the public. Nonetheless, as soon as the condition is satisfied the grant is obligatory and it is not open to a licensing authority to refuse a licence arbitrarily....."

17. In light of the statutory provisions and decisions referred to above, it would be necessary to revert to the impugned orders. A perusal of the impugned orders indicates that the sole reason for rejection of the application of the petitioner, is based upon the opinion of the Police authorities that the licence may not be granted as the petitioner is aged 63 years. Apart from that, the District Magistrate and the State Government have concluded in their respective orders, that no reasonable ground exists for granting a licence to the petitioner. As has been noticed hereinabove, Section 13(2A) vests the licencing authority with power to either grant a licence or refuse the same, as thought necessary, after considering the report of the officer in charge of the nearest Police Station, as provided under Section 13(1)(2). As per Section 14(1)(b)(ii), the licencing authority shall refuse to grant a licence, among other reasons mentioned in Section 14(1), if it is found necessary to refuse it for the security of the public peace or public safety. As already discussed above, the report of the Police authorities in the case of the petitioner, does not indicate that he has any criminal antecedents, or that granting the licence to him will endanger the security and safety of the public or hinder public peace. In fact, the Police authorities have not given any adverse opinion in the case of the petitioner. The only ground mentioned is that the petitioner is 63 years of age which, in the view of this Court, cannot be considered as being a prohibition, as it is nowhere so stated in the Act.

18. Though Section 9 prohibits a person, who has not completed the age of 21 years, from acquiring, possessing or carrying a firearm or ammunition, there is no prohibition regarding a person of any age above the age of 21 years from doing so. The grounds for refusal of a licence under Section 14 do not apply to the petitioner in any manner. The discretion for exercise of power vested in the licencing authority by virtue of Section 13(2A) is to be exercised in relation to, and in the context of, the provisions of the Act, in a reasonable and rational manner. The reasons for refusal of a licence would have to have a nexus to, and be in context with, the provisions of the Act. Merely refusing to issue a licence for a reason not prohibited by the Act, such as being aged 63 years, is unjustified and not in consonance with the provisions of the Act. It is stated in the impugned orders passed by the District Magistrate and the State Government, that there are no reasonable grounds for grant of licence to the petitioner. On the contrary, in view of the relevant provisions of the Act, it is evident that the respondents have failed to show any valid grounds for refusal of the licence.

19. The petitioner is, and has been, a member of Billimora Rifle Club since the year 1988, and has participated in a number of Rifle Shooting tournaments and won several certificates and awards. One of the grounds on which the petitioner has requested for grant of the licence is for participation in sports activities, namely, Rifle Shooting. As per Section 13(3)(i), the licencing authority can grant a licence in respect of a smooth bore gun having a barrel of not less than twenty inches in length, for protection of crops or for sports. Apart from sports, the petitioner has cited the reason of self-protection in his application for grant of the licence. As the petitioner was 63 years old at the relevant point of time, and is now aged about 67 years, it cannot be said that the reason of self-protection is unjustified as older people would require to be more secure and to have a licenced firearm would provide such security. Both the grounds for which the petitioner has requested for the issuance of a firearm licence, cannot be said to be unreasonable or inadequate. It is not understandable on what premises the respondents have come to such a conclusion.

20. Having considered in detail the relevant provisions of the Act, as above, this Court is of the view that there is no valid, justified or legal ground for rejecting the application of the petitioner, and for dismissing the appeal filed by him. The refusal of the respondents to grant a firearm licence to the petitioner is not supported by any provision of the Act and is, therefore, unreasonable, arbitrary and not in accordance with law.

21. Accordingly, the petition is allowed. The orders dated 16.12.2008 and 04.02.2011, passed by the District Magistrate, Navsari, and the State Government, respectively, are quashed and set aside. Rule is made absolute. There shall be no orders as to costs.

Petition allowed.