Devi Prasad Singh, J. - (1.) HEARD Sri Syed Mohd. Munis Jafari, learned counsel for the petitioner and Sri Jai Shanker Misra learned Standing Counsel and perused record.
(2.) THE petitioner through the present writ petition has challenged the impugned order dated 28.4.2005 passed by the District Magistrate Sultanpur Annexure-1 as well as the order dated dated 3.4.2008 passed by the Commissioner Faizabad Division, Faizabad Annexure-2, with regard to cancellation of petitioner's arms licence for SBBL Gun. In brief, from the allegations on record, it appears that on 20.5.2004, the petitioner had gone to attend a Barat (marriage ceremony) at Gola District Gorakhpur. In the said Barat, it appears that firearms were used to celebrate the occasion during solemnization of marriage and in the said firing, a Barati was injured and, on account of injuries caused in the said firing, the person succumbed to injuries. An F.I.R. was lodged under Crime No. 146/2004 under Sections 302, 352, IPC at PS Gola District Gorakhpur in which no one was named. However, after investigation the police has submitted charge- sheet against the petitioner under Section 304 of IPC. On the basis of the said charge-sheet, the District Magistrate, Sultanpur served notice to the petitioner thereafter cancelled the arms licence of the petitioner by an order dated 28.4.2005. An appeal was preferred before the Commissioner, Faizabad Division, Faizabad, which was dismissed on merit vide order dated 3.4.2008. A copy of the impugned order dated 28.4.2005 and 3.4.2008 have been filed as Annexures 1 and 2 to the writ petition. It has been submitted by the petitioner's counsel that neither the Baratees nor petitioner has committed any crime. According to petitioner's counsel, the petitioner had not used his gun rather, the firearm injury was caused by the firearms used by one Dablu Singh. Petitioner's counsel submitted that he is the son of a Sub-Inspector of Police, therefore, he was not implicated in the incident. It appears that the petitioner's name has been brought on record on the basis of statement recorded under Section 161, CrPC and accordingly, the charge-sheet was filed naming the petitioner. It has been further submitted by the petitioner's counsel that the petitioner's involvement in the said incident is doubtful. The arms licence should not have been cancelled by the authorities. The petitioner does not possess any criminal antecedents and he has been falsely implicated in the criminal case. Merely because criminal case is pending it shall not be appropriate ground for cancellation of licence.
(3.) THE provisions of sub-section (3) and (4) of Section 17 of Arms Act provide various conditions for granting, cancelling or suspending the arms licence. For convenience, sub-sections (1) to (5) of Section 17 of Arms Act are reproduced as under: "17. Variation, suspension and revocation of licences. - (1) THE licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice. (2) THE licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed. (3) THE licensing authority may, by order in writing suspend a licence for such periods 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; or (b) 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 there for 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." A plain reading of Section 17 indicates that the arms licence can be cancelled or suspended on the ground that the licensing authority deems it necessary for security of the public peace or the public safety. In the present case, while passing the impugned order, neither the District Magistrate nor the appellate authority has recorded the finding as to how and under what circumstances, the possession of arms licence by the petitioner, is detrimental to the public peace or the public security and safety. Merely because criminal case is pending more so, based on an accidental firing resulting in accidental death of a person, does not seems to attract the provisions of Section 17 of the Arms Act. To attract the provisions of Section 17 of the Arms Act with regard to public peace, security and safety, it shall always be incumbent on the authorities to record a finding that how, under what circumstances and what manner, the possession of arms licence shall be detrimental to public peace, safety and security. In absence of such finding merely on the ground that a criminal case is pending without any mitigating circumstances with regard to endanger of public peace, safety and security, the provisions contained under Section 17 of the Arms Act, shall not satisfy.;