BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24/01/2011
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.(MD)No.12051 of 2009
and
M.P.(MD)No.1 of 2009
Murugan ... Petitioner
Vs.
1.The Special Commissioner of
Revenue Administration,
Disaster Management and
Mitigation Department,
Ezhilagam,
Chennai.
2.The District Collector -cum-
District Magistrate,
Thoothukudi,
Thoothukudi District. ... Respondents
Prayer
Writ Petition is filed under Article 226 of the Constitution of India
praying for the issue of a Writ of Certiorarified Mandamus, to call for the
records of the first respondent relating to his proceeding in
Rc.No.RA.5(1)/46224/2006 (A.A.No.083/2006) dated 01.10.2007 confirming the order
of the second respondent vide his proceedings in Na.Ka.C3/33653/2006, dated
23.05.2006 and to quash the same and further direct the respondents to issue Gun
licence to the petitioner.
!For Petitioner ... Mr.S.Deenadayalan
^For Respondents... Mr.S.C.Herold Singh
Government Advocate
********
:ORDER
******
Challenge in this Writ Petition is to the order dated 1 October 2007
on the file of the first respondent, confirming the order dated 23 May 2006 on
the file of the District Collector/District Magistrate, Thoothukudi, whereby and
whereunder the application submitted by the petitioner for grant of arms licence
to possess pistol for self-protection was rejected.
FACTS IN BRIEF:
2. The petitioner was functioning as the President of Karungulam
Panchayat. He was involved in a criminal case in Crime No.323 of 1995 on the
file of the Murappanadu Police Station and he was acquitted as per judgment
dated 04.04.2005. The petitioner, having convinced that there was a threat to
his life, filed an application for arms licence before the second respondent.
The application was forwarded to the Superintendent of Police and Revenue
Divisional officer, Thoothukudi for their comments. The Superintendent of Police
was of the view that the petitioner was involved in a criminal case and as such,
it was not advisable to grant arms licence to him. The Revenue Divisional
Officer submitted a report indicating that the petitioner need a weapon for
self-protection in connection with his political activities. The second
respondent, after hearing the petitioner, rejected the application as per order
dated 23.05.2006. The said order was challenged before the first respondent.
VIEWS OF THE APPELLATE AUTHORITY:
3. The first respondent was of the view that the petitioner has not
come up with valid and sound reasons for the possession of gun and accordingly,
the appeal was rejected. Feeling aggrieved, the petitioner is before this Court.
SUBMISSIONS:
4. The learned counsel for the petitioner contended that the
original authority as well as the appellate authority grievously erred in
rejecting the application for arms licence. According to the learned counsel,
the second respondent was not justified in rejecting the application solely on
the basis of the report filed by the Superintendent of Police. The learned
counsel further contended that the finding recorded by the respondents that
there were no materials placed to show that there was a threat to the life of
the petitioner was nothing but a subjective satisfaction and not an objective
one and as such, the order requires interference by this Court.
5. The learned Government Advocate justified the order passed by the
original authority as confirmed by the appellate authority.
ANALYSIS:
6. The petitioner was a member of a political party. During the
material time, he was functioning as the President of Karungulam Panchayat. The
petitioner was of the view that there was a serious threat to his life and
property and as such, he preferred an application before the second respondent
for grant of arms licence. The matter was referred to the Superintendent of
Police and the Revenue Divisional Officer. The Superintendent of Police in his
report submitted that the Tuticorin District was a sensitive district and as
such, it was not advisable to grant arms licence to the petitioner. The
Superintendent of Police further submitted that the petitioner himself was an
accused in a communal violence case and as such, it would be dangerous to give
an arms licence to him. On the other hand, the Revenue Divisional Officer
recommended the case of the petitioner.
7. The District Collector mainly relied on the report of the
Superintendent of Police and rejected the application. Those reasons weighed
with the appellate authority also. Accordingly, the appeal was also rejected.
8. The core question is as to whether the authorities below were
justified in rejecting the application for grant of gun licence to the
petitioner.
THE STATUTE:
9. The Arms Act 1959 was enacted to regulate the acquisition,
possession or carrying of firearms and ammunition and to provide punishment for
contravention of the statutory provisions. The statement of objects and reasons
appended to the Act indicates that the rigours of the Arms Act, 1878 and rules
thereunder continue to make it difficult for law abiding citizens to possess
firearms for self-defence whereas terrorists, dacoit-gangs and other anti-social
or anti-national elements were using not only civilian weapons but also bombs,
hand-grenades, bren-guns, sten-guns, 303 bore service rifles and revolvers of
military type, for perpetrating heinous crimes against society and the State.
Therefore, it was only to codify the law relating to the possession of arms that
the Act was enacted.
10. Section 3 of the Arms Act, 1959 [hereinafter referred to as "the
Act"] provides that no person shall acquire, have in his possession, or carry
any firearm or ammunition unless he holds a licence issued in accordance with
the Act. Section 13 of the Act deals with submission of application and grant of
licence. Section 13(2) provides that on receipt of an application from a person,
the licensing authority shall call for the report of the officer in charge of
the nearest police station and such officer shall send his report within the
prescribed time. Sub section 2-A of Section 13 provides that the licensing
authority, after such enquiry, if any, and after considering the report received
from the officer in charge of the nearest police station, shall, by order in
writing, either grant the licence or refuse to grant licence. The proviso added
to Section 13(2-A) gives an indication that in case the officer in charge of the
nearest police station fails to submit a report, it will be open to the
licensing authority to pass appropriate orders without further waiting for the
report.
11. Section 14 provides the circumstances under which an application
for licence could be refused. The said provision reads thus:
"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."
12. Section 13(2) requires only the report of the officer in charge
of the nearest police station. The report of the police officer is only a
material to be considered by the licensing authority. The report is not binding
on the licensing authority. This is evident by the fact that the proviso to
Section 13(2-A) gives authority to the Licensing authority to grant licence even
without waiting for a report of the officer in charge of the police station, in
case such report is not furnished within the time granted. Therefore, it was
not open to the licensing authority to reject the application solely on the
ground that the report of the Police Officer was not favourable.
13. In Commissioner of Police v. V.P.Kalairajan [2009(3) MLJ 1295],
a Division Bench of this Court considered the jurisdiction of the licensing
authority under the Arms Act in the matter of granting gun licence. In the said
case, the respondent was functioning as a member of the Legislative Assembly.
His application for arms licence was rejected on the ground that he was involved
in several criminal cases. The matter was considered only in a subjective manner
and it was ultimately rejected. The Writ Petition filed against the order of
rejection was allowed by the learned Single Judge. When the matter was taken up
in appeal, the Division Bench considered the scope and ambit of Sections 14 and
18 of the Arms Act and observed that the satisfaction of the licensing authority
cannot be subjective. The following observation of the Division Bench would make
the position clear:
"20. This Court is of the opinion that when exercise of power of a
statutory authority has to be based on certain reasons which such authority must
believe to exist, such exercise of power cannot be left to the subjective
satisfaction of the authority. Therefore, an erroneous stand has been taken by
the Licensing Authority in his counter affidavit by saying in paragraph-9 "the
subjective satisfaction of this respondent based on sound reasoning cannot be
questioned by the petitioner". This stand is totally wrong. First of all, the
satisfaction of the Licensing Authority cannot be subjective and secondly, the
applicant for such licence has always the right to question it, and the right of
appeal under Section of the said Act recognizes such a statutory right of an
applicant to question the exercise of power by the Licensing Authority.
Therefore, it is clear that the Licensing Authority has proceeded on an
erroneous basis in the exercise of his power under Section 14 of the said Act.
14. It is a matter of record that originally the petitioner was
involved in a criminal case in Crime No.323 of 1995 on the file of the
Murappanadu Police Station. He was acquitted as per judgment dated 04.04.2005 by
the learned District and Sessions Judge, Tirunelveli. The application for
licence was made as early as in the year 2006. In fact, even before the
submission of application for gun licence, the criminal case ended in acquittal.
The said aspect was not considered by the original authority as well as the
appellate authority. The issue was not objectively considered by the statutory
authority. Therefore, I am of the view that the matter requires consideration by
the second respondent afresh.
15. In the result, the impugned order dated 01.10.2007 is set aside
and the matter is remitted to the second respondent for fresh consideration. It
is open to the petitioner to produce materials to substantiate his case
regarding the necessity for granting a licence to possess pistol. The second
respondent is directed to consider the matter in an objective manner in
accordance with the provisions of Arms Act, 1959 and pass appropriate orders on
merits and as per law as expeditiously as possible and in any case, within a
period of two months from the date of receipt of a copy of this order.
16. The Writ Petition is allowed as indicated above. Consequently,
the connected miscellaneous petition is closed. No costs.
SML
To
1.The Special Commissioner of
Revenue Administration,
Disaster Management and
Mitigation Department,
Ezhilagam,
Chennai.
2.The District Collector -cum-
District Magistrate,
Thoothukudi,
Thoothukudi District.
http://judis.nic.in/judis_chennai/qrydi ... name=58123
http://judis.nic.in/judis_chennai/srgseq.aspx
The first link will giv u the judgement above. And the second link will give you the list of other judgements passed related to Arms Act in Madras high Court during 01st jan 2011 to 30th June 2011..
Regards
Prasanjit
