HAJI MOHAMMAD HASSAN ALI Vs. COMMISSIONER OF PLAINS DIVISION AND ORS.
HIGH COURT OF GAUHATI
Haji Mohammad Hassan Ali
Commissioner Of Plains Division And Ors.
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S.K. Dutta, C.J. -
(1.)THIS petition is directed against the order of the Deputy Commissioner, Nowgong dated 5 -8 -65 by which the licence of the Petitioner for holding a gun was cancelled and also against the order of the Commissioner of the Plains Division, Assam dated the 13th August, 1966 confining the same.
The Petitioner's case is that he is a citizen of India and a well -to -do person. He owned and possessed one S.D.B.L. gun being gun No. 58093 under Arms Licence No. 168 of Rupahihat Police Station granted to him for the last 12 or 13 years. On 9 -1 -65 the Petitioner deposited his gun with M/s. Meghamall and Sons, Arms Repairer, Nowgong for colouring and polishing the same. He was granted a receipt by the said firm. The Petitioner was served with a notice dated 12 -8 -65 by the Assistant Commissioner, in charge of Arms (Respondent No. 3), Nowgong whereby he was in formed that his aforesaid gun licence had been cancelled and his gun confiscated to the State forthwith as per Deputy Commissioner's order dated 5 -8 -65.
Thereafter the Petitioner went to the office of the Deputy Commissioner, Now -gong and obtained a copy of the order dated 5 -8 -65 passed by the Deputy Commissioner (Respondent No. 2). It appeared from the said order that the Deputy Commissioner received a police report and concluded on it that the Petitioner was a man of desperate character and considered him unfit to hold the gun licence. The Petitioner was not Informed about the contents of the police report: or the grounds on which the licence was cancelled. The Petitioner preferred an appeal under Section 18(1) of the Arms Act 1959 (hereinafter called the new Act) against the order of the Deputy Commissioner before the Commissioner of Plains Division, Assam, Gauhati (Respondent No. l). The Commissioner called for a report from the Deputy Commissioner from which it appeared that the Deputy Commissioner, considered the fact that the Petitioner was involved in a murder case at the time of cancellation of the gun licence and concluded from this fact that the Petitioner was a man of desperate character.
Regarding the murder case, the Petitioner submits that on 12 -1 -65 the Officer -in -charge of the Rupahihat Police Station registered a case on an information lodged by one Omar Ali. It appeared from the said information that on 11 -1 -65 at 2 -30 A. M. one Fazal Ali being armed with one single barrel gun and another Nazer and few others armed with duos and daggers broke into the house of Kumed Ali and Fazal fired a gun shot at Kumed Ali causing his death. The police during investigation arrested the Petitioner. But on completion of investigation, the Investigating Officer made a prayer for the discharge of the Petitioner and a few others, whereupon the Additional District Magistrate, Nowgong discharged them. The charge -sheet was submitted against Fazal AU and Nazer AH only. The Commissioner of Plains Division, Assam, Respondent No. 1, rejected the appeal preferred by the Petitioner after hearing the arguments of his lawyer.
(2.)THE only question that is raised in this case before us is whether the licensing authority while cancelling a licence under Section 17(3) of the new Act must act judicially. The grievance of the Petitioner is that he was not given a hearing by the Deputy Commissioner before cancelling the licence. The relevant portions of Section 17(3) of the new Act read as follows:
17 (1) * * *
(2) * * *
(3) The licensing authority may, by order in writing, suspend a licence for such period as it thinks fit or revoke a licence -
(a) if the licensing authority is satisfied that the holder of the licence is 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 is of unsound mind, or is for any reason unfit for a licence under this Act;
(b) or if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or
(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or
(d) if any of the conditions of the licence has been contravened; or
(e) if the holder of the licence has failed to comply with a notice under Sub -section (1) requiring him to deliver up the licence.
(4) The licensing authority may also revoke a licence on the application of the holder thereof.
(5) Where the licensing authority makes an order varying a licence under Sub -section (1) or an order suspending or revoking a licence under Sub -section (3), it shall record in writing the reasons therefore and furnish to the holder of the licence 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.
The above section is based on Section 18 of Act XI of 1878 (hereinafter called the old Act) which was replaced by the new Act. That Section 18 is reproduced below:
18. Cancelling and suspension of licence -Any licence may be cancelled or suspended -(a) by the officer by whom the same was granted, or by any authority to which he may be subordinate, or by any Magistrate of a district, or Commissioner of Police in a presidency town, within the local limits of whose jurisdiction the holder of such licence may be, when, for reasons to be recorded in writing, such officer, authority, Magistrate or Commissioner deems it necessary for the security of the public peace to cancel or suspend such licence; or (b) by any Judge or Magistrate, before whom the holder of such licence is convicted of an offence against this Act, or against the rules made under this Act; and the 'Central Government' may, by a notification in the official Gazette, cancel or suspend all or any licences throughout India or any part thereof.
(3.)IT will appear that Section 17 of the new Act is more exhaustive than Section 18 of the old Act. The order of cancellation of the licence must be passed by the licensing authority in writing. It is also required of the said authority to record the reasons and to give a copy of the order to the licence -holder on demand unless it is against public interest. It appears that m the present case the Deputy Commissioner read the police report and came to the conclusion that the Petitioner was a man of desperate character. Hence the police report was a part of the order of the Deputy Commissioner. Had the Petitioner demanded, he would have been also entitled to get a copy of the police report on which the Deputy Commissioner's order was based. As no such demand was made, the grievance of the Petitioner that he did not get a copy of the police report has no substance.
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