A good case study that gives hope!
Posted: Fri May 22, 2020 4:52 pm
https://judgementsincriminallaw.wordpre ... -patna-hc/
Holding Arms is not a fundamental right but it is a statutory right : Patna HC.
In Civil Writ Jurisdiction Case No.10358 of 2015, Saket Kumar Vs.The State of Bihar, The single bench of Hon’ble Mr. Justice Dinesh kumar Singh setting aside orders of District Arms Magistrate, Munger and Divisional Commissioner, Munger Division, Munger, cancelling Arms license of the petitioner being bereft of adequate reasons held that Holding Arms is not a fundamental right but it is a statutory right and natural justice does not mean giving a show cause and acceptance of reply only.
The reply to the show cause given by the licence holder is required to be considered and based upon the overall circumstance, the licensing authority has to give his satisfaction to the effect that in view of the nature of case against the licence holder and in view of the circumstances, which gets culled out, the licence holder is unfit for holding the licence for arms under the Act.
Hon’ble Court Observed :
Considering the rival submissions of the parties, this Court is of the view that possessing the licence of arms is not a fundamental right but it is a statutory right. Section 17 of the Arms Act provides for variation, suspension and revocation of licences. Section 17(3)(a) to (e) provide for conditions under which the licence may be revoked. The conditions inter alia are unsoundness of mind or for any reason unfit for a licence, if it is deemed fit for the public peace or public safety, licence was obtained by suppression of material information or on basis of wrong information provided by the holder, contravention or failure to comply with a notice under Section 17(1) of the Arms Act, requiring him to deliver up the licence.
Though, one may say that sub-section (3) of Section 17 of the Arms Act does not, in specific terms, provide that the pendency of a criminal charge is a ground for suspension or revocation of licence, yet, it is equally true that it is not possible for the legislature to conceive every situation or eventuality, which may render suspension or revocation of a licence granted to a person. It is under such circumstances that the residuary direction has to be exercised by the licensing authority, who has to give hissatisfaction, in the given facts, circumstances and situation, whether the licence holder is unfit to hold the licence under the Act.
No doubt, the petitioner was accused in a case registered for serious offence under Section 302 of the IPC and that was the only ground for cancellation of licence under Section 17 (3)(a) of the Arms Act.
It is well settled law that judicial review under Article 226 of the Constitution of India is primarily concerned with the decision making process rather than the merits of the initial decision. Natural justice does not mean giving a show cause and acceptance of reply only. The reply to the show cause given by the licence holder is required to be considered and based upon the overall circumstance, the licensing authority has to give his satisfaction to the effect that in view of the nature of case against the licence holder and in view of the circumstances, which gets culled out, the licence holder is unfit for holding the licence for arms under the Act.
The safeguard in this regard is provided under sub-section (5) of Section 17 of the Arms Act which stipulates that the licensing authority must record reasons in writing and also furnish a brief statement of the same to the holder of licence, on his demand, unless in exceptional cases, he is of the opinion that it will not be in the public interest to furnish such statement.
Hence, from a conjoint of Section 17(3) and Section 17(5), it emanates that the subjective satisfaction has to be broadly and reasonably exercised.
The impugned order passed by the Collector does not suggest that the reply to the show cause submitted by the petitioner was considered by the Collector and mechanically by a cryptic order, the Divisional Commissioner has affirmed the order of the District Arms Magistrate, hence on this ground also, the impugned orders cannot be sustained.
Reliance may be placed on the case of Chandan Kumar Yadav Vs. State of Bihar reported in 2013(2) PLJR 605. In the said case also, the District Magistrate had held that the reply to the show cause is not satisfactory and hence it was held that the show cause is not unsustainable in law.
Hon’ble Court Held :
Accordingly, both the impugned orders passed by District Arms Magistrate, Munger and Divisional Commissioner, Munger Division, Munger, being bereft of adequate reasons are hereby set aside.
Accordingly, the present writ application is allowed.
Holding Arms is not a fundamental right but it is a statutory right : Patna HC.
In Civil Writ Jurisdiction Case No.10358 of 2015, Saket Kumar Vs.The State of Bihar, The single bench of Hon’ble Mr. Justice Dinesh kumar Singh setting aside orders of District Arms Magistrate, Munger and Divisional Commissioner, Munger Division, Munger, cancelling Arms license of the petitioner being bereft of adequate reasons held that Holding Arms is not a fundamental right but it is a statutory right and natural justice does not mean giving a show cause and acceptance of reply only.
The reply to the show cause given by the licence holder is required to be considered and based upon the overall circumstance, the licensing authority has to give his satisfaction to the effect that in view of the nature of case against the licence holder and in view of the circumstances, which gets culled out, the licence holder is unfit for holding the licence for arms under the Act.
Hon’ble Court Observed :
Considering the rival submissions of the parties, this Court is of the view that possessing the licence of arms is not a fundamental right but it is a statutory right. Section 17 of the Arms Act provides for variation, suspension and revocation of licences. Section 17(3)(a) to (e) provide for conditions under which the licence may be revoked. The conditions inter alia are unsoundness of mind or for any reason unfit for a licence, if it is deemed fit for the public peace or public safety, licence was obtained by suppression of material information or on basis of wrong information provided by the holder, contravention or failure to comply with a notice under Section 17(1) of the Arms Act, requiring him to deliver up the licence.
Though, one may say that sub-section (3) of Section 17 of the Arms Act does not, in specific terms, provide that the pendency of a criminal charge is a ground for suspension or revocation of licence, yet, it is equally true that it is not possible for the legislature to conceive every situation or eventuality, which may render suspension or revocation of a licence granted to a person. It is under such circumstances that the residuary direction has to be exercised by the licensing authority, who has to give hissatisfaction, in the given facts, circumstances and situation, whether the licence holder is unfit to hold the licence under the Act.
No doubt, the petitioner was accused in a case registered for serious offence under Section 302 of the IPC and that was the only ground for cancellation of licence under Section 17 (3)(a) of the Arms Act.
It is well settled law that judicial review under Article 226 of the Constitution of India is primarily concerned with the decision making process rather than the merits of the initial decision. Natural justice does not mean giving a show cause and acceptance of reply only. The reply to the show cause given by the licence holder is required to be considered and based upon the overall circumstance, the licensing authority has to give his satisfaction to the effect that in view of the nature of case against the licence holder and in view of the circumstances, which gets culled out, the licence holder is unfit for holding the licence for arms under the Act.
The safeguard in this regard is provided under sub-section (5) of Section 17 of the Arms Act which stipulates that the licensing authority must record reasons in writing and also furnish a brief statement of the same to the holder of licence, on his demand, unless in exceptional cases, he is of the opinion that it will not be in the public interest to furnish such statement.
Hence, from a conjoint of Section 17(3) and Section 17(5), it emanates that the subjective satisfaction has to be broadly and reasonably exercised.
The impugned order passed by the Collector does not suggest that the reply to the show cause submitted by the petitioner was considered by the Collector and mechanically by a cryptic order, the Divisional Commissioner has affirmed the order of the District Arms Magistrate, hence on this ground also, the impugned orders cannot be sustained.
Reliance may be placed on the case of Chandan Kumar Yadav Vs. State of Bihar reported in 2013(2) PLJR 605. In the said case also, the District Magistrate had held that the reply to the show cause is not satisfactory and hence it was held that the show cause is not unsustainable in law.
Hon’ble Court Held :
Accordingly, both the impugned orders passed by District Arms Magistrate, Munger and Divisional Commissioner, Munger Division, Munger, being bereft of adequate reasons are hereby set aside.
Accordingly, the present writ application is allowed.
in favour of the license holder .