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Democratic Indian (n/a)     12 April 2012

Allahabad high court again stands for rkba!

Hon'ble Sudhir Agarwal,J passed this order on 10/04/2012. He also imposed penalty of Rs 10000 on administration. Text of the order is below -

Case :- WRIT - C No. - 3827 of 2012

Petitioner :- Akhilesh Kumar Singh
Respondent :- State Of U.P. Thru' Secretary Ministry Of Home And Others
Petitioner Counsel :- Riyajuddin Ansari,J.A. Azmi
Respondent Counsel :- C.S.C.

Hon'ble Sudhir Agarwal,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the respondents and perused the record.


2. This writ petition is directed against the order dated 25.10.2011 passed by District Magistrate, Deoria rejecting petitioner's application for grant of firearm licence and appellate order dated 29.09.2011 passed by Commissioner, Gorakhpur Division, Gorakhpur rejecting appeal of petitioner.


3. It appears that police did not recommend grant of firearm licence to petitioner and relying thereon the District Magistrate rejected petitioner's application. In appeal, besides the fact that police has not made any recommendation, the appellate authority has observed that appellant, i.e., petitioner did not disclose any special reason or circumstances relating to his security which would justify grant of firearm licence to petitioner, hence he has held that the District Magistrate has rightly rejected petitioner's application for grant of firearm licence.


4. It is admitted that petitioner applied for grant of firearm licence for his personal safety and security. In the counter affidavit the respondents have filed a copy of police report dated 18.10.2010 which shows that police did not find anything wrong with petitioner but found that petitioner's father was an accused in a criminal case under Section 302 IPC in which though he was acquitted but since the acquittal was based on account of lack of proof of charges due to witnesses become hostile, the police did not recommend grant of firearm licence to petitioner.


5. Learned Standing Counsel could not explain as to how the conduct of petitioner's father was relevant for grant of firearm licence to petitioner. Moreover, in respect to non recommendation of licence to petitioner the police report is totally silent about the conduct and antecedents of petitioner justifying non recommendation of firearm licence. It appears that police authorities are proceeding as if it is their pleasure to make recommendation or not for any reason whatsoever and they can proceed to submit inquiry report in a whimsical and arbitrary manner and their mere observation that they did not recommend licence to applicant, would be sufficient to disentitle the applicant from obtaining firearm licence. The approach of police authorities does not appear to be objective in the matter. The District Magistrate and Commissioner have also proceeded in the same manner without any application of mind on their part. Moreover, this Court find it difficult to comprehend as to what the authorities below wanted from a person who is seeking firearm licence for his personal safety and security. It is not the case of respondents that law and order situation in the district concerned or in the State has improved so drastically that police and district administration is extremely capable to give security to all persons and there is no question of any endanger or apprehension to security and safety of any individual entitling him to take his own care since that can be done by law and order machinery itself. It is also not their case that petitioner's claim of firearm licence for his personal safety and security is bogus or a pretext and the real motive is otherwise.


6. This Court in Pawan Kumar Jha Vs. State of U.P. and others, 2010(10) ADJ 782 has held that undue restriction on keeping and bearing arms ought not be� based on unfounded fear. Licence is normally to be granted unless there is something adverse.


7. A fire arm licence cannot be denied only on conjectures and surmises and without appreciating the objective of statute under which the power is being exercised. Right to life and liberty which includes within its ambit right of security and safety of a person and taking, adopting and pursuing such means as are necessary for such safety and security, is a fundamental right of every person. Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. In the interest of maintenance of law and order certain reasonable restrictions have been imposed on such right but that would not make the fundamental right itself to be dependant on the vagaries of executive authorities. It is not a kind of privilege being granted by Government to individual but only to the extent where grant of fire arm licence to an individual would demonstratively prejudice or adversely affect the maintenance of law and order including peace and tranquility in the society, ordinarily such right shall not be denied. It is in these circumstances, this Court has observed that grant of fire arm licence ordinarily be an action and denial an exception. In Vinod Kumar Shukla Vs. State of U.P. and others, (Writ Petition No. 38645 of 2011), decided on 15.07.2011 this Court has said:


"When a fire arm licence is granted for personal safety and security it does not mean that in the family consisting of several persons only one fire arm licence is to be granted. Moreover, this cannot be a reason for denial of arm licence. Fire arm licence can be denied only if the reason assigned by applicant or details given by him in application are not found to be correct but merely because there are one fire arm licence already possessed by one of the family member, the same cannot be denied. Grant of fire arm licence should ordinarily be an action and denial should be an exception. The approach of authorities below is clearly arbitrary and illegal. It also lacks purpose and objective of the statute."


8. The authorities empowered to grant licence under the Act ought not to behave as if they are part of the old British sovereignty and the applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of applicant with more pragmatic and practical approach. Unless they find that in the garb of safety and security, applicant in fact intend to use the weapon by obtaining a licence for a purpose other than self defence, it ought not to have been denied such licence. I am not putting the statutory power of authority concerned in a compartment since there may be more than one reasons for exercising statutory discretion against applicant but then that must justify in the context of purpose and objective of statute and necessarily ought not be whimsical.


9. Both impugned orders in the case in hand shows that on wholly conjectures and surmises the authorities have denied petitioner's claim for fire arm licence and have rejected his application in a most arbitrary manner. The two orders, therefore, cannot sustain.


10. In view of above, the writ petition is allowed. The impugned orders dated 25.10.2010 and 29.09.2011 are hereby quashed and the matter is remanded back to the District Magistrate concerned to consider the same afresh in accordance with law and in the light of observations made above and pass a fresh order within a period of one month from the date of production of a certified copy of this order. The petitioner shall also be entitled to cost, which I quantify to Rs. 10,000/-. At first instance the cost shall be paid by respondent no. 1 but it may have the liberty to recover the aforesaid amount from official concerned who held the office of respondents no. 2 and 3 and are responsible for passing the impugned orders.
Order Date :- 10.04.2012
AK

More related judments can be read at https://www.lawyersclubindia.com/forum/Allahabad-high-court-says-rkba-part-of-article-21-44153.asp and https://www.lawyersclubindia.com/forum/RKBA-guaranteed-under-Articles-19-and-21-of-Constitution-36011.asp



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 2 Replies

Vinav K Mishra (Lawyer)     12 April 2012

very nice judgement. Thanks for sharing bud

Vishal K Singh VY (Special Duty Officer)     08 May 2012

Highly informative .. 

Thanks for posting .. 

VKS


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