Ajay Bhanot,J
1. The petitioner applied for a fire arms license by applications dated 03.07.2020 and 07.06.2021.
2. By the impugned order dated 05.07.2021 the licensing authority/ District Mainpuri has declined to grant the arms license to the petitioner.
3. Sri Sanjeev Kumar Pandey, learned counsel for the petitioner contends that the denial of the arms license to the petitioner on the footing that the petitioner does not faces any imminent threat to his life is arbitrary and illegal. He relied on various judgments rendered by this Court in Arvind Kumar Vs. State of U.P. and others reported at 2012 76 ACC 457, Ram Chandra Yadav Vs. State of U.P. and another reported at 2010 (69) ACC 490; Brij Nandan Singh Vs. State of U.P. and others reported at 2011 (75) ACC 331 and also the judgments rendered by this Court on 21.05.2019 in Bhoore Singh Vs. State of U.P. and another Writ C No. 17507 of 2019, judgment rendered on 23.05.2019 in Indal Singh Vs. State of U.P. and another Wrti C No. 17833 of 2019 and the judgment of this Court rendered on 07.12.2019 in Kammod Vs. State of U.P and other Writ C No. 39541 of 2019.
4. Per contra learned Additional Chief Standing Counsel Sri J.P.N Raj, submits that the petitioner did not satisfy the criteria for grant of arms license as laid down in the Government Order dated 08.11.2018. It is further contended that the judgments relied upon by the learned counsel for the petitioner have been rendered by various Single Judges’ of this Court. The ratio of the aforesaid judgments is contrary to the law laid down by learned Division Bench of this Court in State of U.P. and others Vs. Mahipat Singh reported at 2014 (2) ADJ 134. [LQ/AllHC/2014/167] The judgment of the learned Division Bench was not referred to the learned Single Judges’ in Bhoore Singh (supra), Kammod Singh (supra) and Indal Singh (supra). Applicable provisions of the Arms Act and Arms Rules as well as the Government Order dated 08.11.2018 have not been considered in the judgments cited in support of the petitioner’s case. The said judgments rendered by the learned Single Judges’ are per incuriam.
5. Heard learned counsel for the parties.
6. To process the application for grant of firearm license submitted by the petitioner, reports were called for by the licensing authority from the relevant government departments, namely, the revenue and the police authorities The said reports are extracted in the impugned order dated 05.07.2021.
7. The report submitted by the S.D.M., Karhal, dated 27.1.2021 records that the applicant is not victim of a crime, a trader, an industrialist, a serviceman, a member of paramilitary forces, a MLA, a MLC, a MP or an Enforcement Officer. The report on behalf of the police authorities submitted by the Inspector Incharge of Police Station, Karhal on 27.01.2021 asserts that no criminal case has been registered against the applicant Rajat Yadav. Analysing the threat perception to the applicant Rajat Yadav, the said police report opined that the applicant does not face any threat to life or property from any individual. The applicant does not have a genuine requirement for possession of a firearm. The report of the Inspector of the concerned police station was duly approved by the C.O, Karhal, in his report dated 08.02.2021. The Additional Superintendent of Police, Mainpuri also accorded approval to the report submitted by the S.H.O and the C.O.
8. After agreeing with the reports submitted by various police functionaries, the Superintendent of Police, Mainpuri made the recommendation that the applicant was not entitled for grant of arms license.
9. The eligibility of the petitioner for grant of arms license was examined in the light of enquiry reports submitted by various competent authorities in the impugned order dated 05.07.2021. The petitioner did not fall in various categories of individuals entitled for grant of license by virtue of holding an office or discharging specific official functions which could entail threat to life.
10. The licensing authority also referenced the Government Order dated 08.11.2018 which categorically postulates that only those individuals who face a grave threat or imminent danger to their lives or there was real possibility of threat to their lives were entitled for consideration of their applications for grant of license. The Government Order dated 08.11.2018 also contemplates that the licensing authority will have to ensure that licenses should not be issued to persons who do not have any real requirement.
11. The licensing authority independently agreed with the threat perception reports submitted by the police authorities and recommendation of the revenue authorities. The licensing authority found that the petitioner does not face any imminent or forseeable threat to his life or property. The licensing authority in the impugned order recorded that the petitioner does not satisfy the eligibility criteria laid down in the said Government Order for grant of firearm license and does not have a genuine requirement for a firearm.
12. On the foot of this reasoning the licensing authority rejected the application of the petitioner for grant of arms license by the impugned order dated 05.07.2021.
13. The regulation of arms ownership in modern India has a chequered history. In British India the arms laws confined the ownership of arms to a select elite. Even Mahatma Gandhi wanted the said discriminatory laws to be repealed after achieving independence. The Arms Act, 1959 enacted by the Parliament in independent India, discarded the exclusivity in ownership of arms and introduced transparency in the grant of arms licenses. But what is noteworthy is that the Indian Parliament did not liberalise the grant of fire arms licenses, but continued with the policy of restrictive gun laws. The Arms Act, 1959 read with Arms Rules, 2016, lay down a transparent process for grant of fire arms licenses and tightly regulate ownership of arms.
14. The prevalence of fire arms in a society and its impact on state building and as a cause of State breakdown has been examined in various studies.
15. Commenting on the phenomena of global flow of guns and failure of States, Pratap Bhanu Mehta, writes that “supply of weapons matters, and unless controlled acquires an autonomous dynamic”.
16. The restrictive regime of arms license possession in India under the Arms Act, 1959 faced constitutional challenge before this Court. A five Judges Full Bench of this Court in Kailash Nath and others Vs. State of U.P. and others AIR 1985 All 291 [LQ/AllHC/1985/288 ;] ">1985 All 291 [LQ/AllHC/1985/288 ;] [LQ/AllHC/1985/288 ;] was called upon to decide the question whether the possession and acquisition of a firearm came within the ambit of Article 21 of the Constitution of India.
17. The learned five Judges Full Bench in Kailash Nath (supra) held that acquisition and possession of the firearm under the Arms Act, 1959 is nothing more than a privilege and set its face against the contention that possession and acquisition of firearms was a fundamental right flowing from Article 21 of the Constitution of India. by holding thus:
“"3................. In my opinion the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the right of an individual nor does it entail civil consequences. I may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen may apply for grant of a licence of firearms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Art. 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras, 1950 SCR 88 [LQ/SC/1950/19] : (AIR 1950 SC 27 [LQ/SC/1950/19] ). Art. 21 is attracted only in cases of deprivation in the sense of total loss and that accordingly has no application to the case of a mere restriction upon the right to move freely or to the grant of licence for possession and acquisition of firearms which stands on an entirely different footing from the licence to carry on a trade or occupation. ”
18. A Full Bench of this Court in Balram Singh Vs. State of U.P. and others 1989 (87) ALJ 23 reiterated that grant of license for possessing of firearm is only a privilege to be granted by the State:
"13. In this connection, another aspect of the matter cannot be lost sight of. Obtaining of a licence for possessing a fire-arm has to be held a privilege only. No civil consequences follow. Even if we were to hold that consequences do follow as it may in proceedings concerning licences issued under Section 4 or 5 of the, the security of public peace or public safety would be of paramount importance........"
(emphasis supplied)
19. Subsequently there was a departure from the above position of law. The cleavage in judicial opinion in regard to the nature of the right to carry firearms opened when a learned Single Judge of this Court in Ganesh Chandra Bhatt Vs. District Magistrate AIR 1993 All 291 [LQ/AllHC/1993/186] construed the right to carry firearm as one flowing from Article 21 of the Constitution of India.
“44. In my opinion the right to carry non-prohibited firearms is part of Article 21 of the Constitution, for to hold otherwise would amount to keeping good and peace loving citizens defenceless while the criminal are well armed. This would be wholly arbitrary and unreasonable. In these days when law and order has broken down it is only an armed man who can lead a life of dignity and self respect. No criminal or gangster can dare to assault or threaten such a person for fear of retaliation. Since the word ‘life’ in Article 21 has been held by the Supreme Court to mean a life of dignity (as discussed above), the right to carry non-prohibited firearms must be deemed to be included in Article 21.”
20. Discordant judicial views on the aforesaid issue became manifest when a learned Division Bench judgment of this Court in Devendera Pratap Singh Vs. District Magistrate Writ Petition No. 29963 of 1993, judgements dated 27.10.1993, held that the right to carry non prohibitory firearm was vested in a citizen by virtue of Article 21 of the Constitution of India. The proposition laid down in Ganesh Chandra Bhatt (supra) and Devendra Pratap Singh (supra) diverged from the holdings of in Kailash Nath (supra) and Balram Singh (supra).
21. Consequently, the matter was referred yet again to a Special Bench of this Court comprising of five learned Judges in Rana Pratap Singh Vs. State of Uttar Pradesh 1996 CriL.J. 665 for an authoritative pronouncement on the issue.
22. The learned five Judges Full Bench of this Court in Rana Pratap Singh (supra) essentially affirmed the opinion of this court in Kailash Nath (supra) and held that obtaining a firearms license for acquisition and possession of a firearms under the Arms Act. 1959 is only a privilege and the right to carry firearms does not come within the purview of Article 21 of the Constitution of India. The following proposition enunciated in Rana Pratap Singh (supra) finally settled the controversy :
"33. Turning now to the reference pertaining to the grant of an arms licence, there is the judgment of M. Katju, J. in Ganesh Chandra Bhatt v. The District Magistrate, Almora (1993(30) ACC 204) where the learned Judge held that the right to carry non-prohibited firearms was part of Article 21 of the Constitution of India since he said the word 'life' in Articles 21 has been held by the Supreme Court to be a life of dignity. It was, in this behalf, his view that is only an armed man who can lead a life of dignity and self respect.
34. The learned Judge went on to lay down as a legal proposition that "Whenever an application for a licence for a non-prohibited arm is made and it is not disposed of within three months it will be deemed to have been allowed on the expiry of three months". Not only this, but a general mandamus was also issued "to all concerned authorities that whenever any application for licence under the Arms Act is made the same must be processed and decided within three months, and the normal rule must be grant of the licence in the case of non-prohibited firearms, and the refusal should be exception and for strong reasons to be recorded in writing after giving opportunity of hearing to the applicant, and such reasons for rejection must be communicated to the application within three months of the application. The licence should also be normally not restricted to the district or State except for special reasons to be recorded in writing and communicated to the applicant."
35. Both these views, namely, that if no order is passed on an application for an arms licence within three months from the date thereof it shall be deemed to have been granted and that the right to carry a non-prohibited weapon was a right guaranteed under Article 21 of the Constitution, were later given the seal of approval by the Division Bench in Civil Misc. Writ Petition No.29963 of 1993 (Devendra Pratap Singh Vs. District Magistrate), decided on October 27, 1993, of which M. Katju, J. was a member.
36. Strong reservations were expressed by Bahuguna, J. in Ajai Singh's case to the rationale of the judgments in Ganesh Chandra Bhatt, 1993 (30) ACC 204 and Devendra Pratap's cases (supra) Civ. Misc. Writ Pet. No.29963 of 1993, D/-27-10-93 and he consequently sought their reconsideration by a larger Bench.
37. A reading of the relevant statutory provisions of the Arms Act would show that no time limit has been prescribed therein for the consideration of an application for the grant of an arms licence, nor is there any provision to the effect that if the application is not finally decided within a particular time frame, the licensing authority shall be bound to grant the licence, or that the licence shall be deemed to have been granted. We, therefore, cannot but concur with the view of Vijay Bahuguna, J. that had the intention of the Legislature been such, specific provisions would undoubtedly have been made for it in the. On the face of it, therefore, the provisions of the Arms Act cannot be so construed as to provide for a deeming provisions for the grant of a licence merely on the expiry of a particular period of time....…
38. Equally unsustainable is the view that the right to carry nonprohibited fired arms comes within the purview of Art. 21 of the Constitution, nor indeed one can we subscribe to the theory as expounded by M. Katju, J. In Ganesh Chandra Bhatt's case 1993(30) ACC 204, that it is only an armed man who can lead a life of dignity and self respect. As rightly held in Kailash Nath's case 1985 AWC 493 [LQ/AllHC/1985/288 ;] ">1985 AWC 493 [LQ/AllHC/1985/288 ;] [LQ/AllHC/1985/288 ;] : AIR 1985 All 291 (supra), obtaining of a licence for acquisition and possession of fire arms under the Arms Act is no more than a privilege. M.N. Shukla, C.J. in this behalf, further observed "No doubt, a citizen may apply for grant of a licence of fire arms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Article 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras, 1950 SCR 88 Article 21 is attracted only in cases of deprivation in the sense of total loss and that accordingly has no application to the case of a mere restriction upon the right to move freely or to the grant of licence for possession and acquisition of fire arms which stands on an entirely different footing from the licence to carry on a trade or occupation". M.K. Katju, J. in Ganesh Chandra Bhatt's case (1993 (30) ACC 204, brushed aside this observation by fastening upon it the label of "per incuriam". On the face of it, this represents a glaring instance of a learned Single Judge, as they say "Seeking to win the game by sweeping all the chessmen of the table" by so blatantly disregarding a binding judgment of a Full Bench of five Judges, by merely saying it is per incuriam, when it was clearly not so.
42. It will thus be seen that branding the observation in Kailash Nath's case (supra), with regard to the right to carry firearms and it not coming under Article 21 of the Constitution, as being merely per incuriam was not founded upon any law or precedent and was, therefore, wholly unwarranted, rather it constitutes a striking instance of the manner in which the per incuriam rule never can or should be applied. It follows, therefore, that the right to carry firearms does not come within the purview of Article 21 of the Constitution. We are, thus, again constrained to hold that both Ganesh Chandra Bhatt's case 1993 (30) ACC 204 as also Devendra Pratap Singh's case Civil Mis. Writ Petition No.29963 of 1993, D/-7- 10-1993, do not lay down correct law and are consequently hereby over-ruled."
23. A Division Bench of this Court in Jitendra Singh Vs. State of U.P. Misc. Bench No. 3268 of 2012, judgement dated 07.10.2013 judicially noticed killing of a number of innocent persons in celebratory firing, the proliferation of arms in the society, and flaunting of weapons in public as a status symbol.
24. The Division Bench of this Court in Jitendra Singh (supra) found in meticulous detail the consequences of freely arming citizens:
“Principal Secretary, Home, however, has filed an affidavit today which displays a very shocking state of affairs. According to Principal Secretary, Home, in State of U.P. 11,22,844 arms licence have been issued to 11,02,113 persons. 11,04,701 arms have been issued to the licence holders. Out of which, 3,81,966 for SBBL and 336954 for DBBL guns have been issued. 1,68,669 licence for rifles, 1,49,065 for revolvers, 54,035 for pistols, 96 for sport guns, 525 for Carbine and 13,882 licences have been issued for other weapons.
It is further stated that in the State of U.P. 35,698 persons are having two arm licences, 5959 persons are having three licences and 55 persons are having more than three arm licences. In para 8 of the affidavit it is stated that 5730 persons are holding arm licences against whom criminal trials are pending while 1061 persons are having licences against whom cases are registered at various police stations.
Above figures are appalling.
It is submitted at the bar that total number of licence holders in the State are far in excess with the arms available to the Police force. Entire 2.13 lakh force of State Police, has 2.25 lakh weapons with them. Thus, the private citizens possess weapons more than five times to the force of State. This does not include the figures of unauthorized arms.
It is further stated at the bar quoting figures from NCRB that more than half of the killings from firing, in the country, are reported from Uttar Pradesh. Number of applications pending for arms licence, is not on record. It was informed that in Lucknow district alone nearly 50 thousands ripe applications are pending for arms licence.
Experience shows that arms licences are procured merely for flaunting the status as it has become status symbol. Needless to say that arm licence is not a right rather it is statutory privilege available with the State. Arming society to such an extent sends danger bell. In fact, the State is sitting on Volcano. Large number of persons with criminal backgrounds with licenced arms including 525 Carbine pose a serious threat to the tranquility and order of the society.
Figures given by Principal Secretary show that more than 41,000 persons are having more than one licence. Fifty five persons are having more than three licences while Section 2(3) of the Arms Act limits the number to three. It is not clear as to what action has been taken by the State Government against the persons having more than three arms licence.
2,25,000 weapons with Police force faced with more than 11,00,000 authorized arms with citizens of Uttar Pradesh in addition to score of illegal arms, maintenance of law and order is bound to be a casualty.”
25. This Court in Jitendra Singh (supra) looked askance at the inability of the State to regulate the grant of licenses:
“There is no evidence to establish that heavily arming citizens has shown any improvement in situation. Even otherwise maintenance of law and order is foremost duty of State and arming people is no alternative. In fact, State has come into existence because of need of protection to its subjects. No proposal has come foreward from the respondents to regulate this uncalled for and unproductive generosity of State.”
26. After recording the magnitude of the problem of arming a society to its hilt and its “deleterious cascading effect”, the State Government in Jitendra Singh (supra) was directed to frame a policy in regard to grant of arms licence and for action against the persons with criminal antecedents possessing the arms licenses.
27. It would also be apposite to refer to some of the similar concerns voiced by a learned Single Judge of this Court in Hari Shanker Vs. State of U.P. and others 2008 (4) ADJ 518:
“7. The Arms Act provides for a procedure for grant of licence for the fire arm. If the licensing authority is satisfied under Section 13(3)(c) of thethat a person, who has applied for the licence, has good reason to obtain for the same, he may grant licence. In other case, the licensing authority may reject the application. The subjective satisfaction of the District Magistrate in such case cannot be put to any straight jacket formula.
8. The Court takes judicial notice of the fact that in the State of U.P., lakhs of fire arms licences have been conceded by indiscriminate grant to the persons for asking, including those who have affiliations to political parties and also those who have long criminal records. The Court also takes judicial notice of the fact that the persons, possessing fire arm licences are displaying these fire arms openly in public places including schools, colleges, hospitals, Courts, railway platforms and other places which creates a sense of fear in the society. The possession of a fire arm has become a source of forced respect and acquisition of power in the society.
9. The licensing authorities have granted licences virtually to everyone who applies to them to possess the fire arm. The peaceful existence of the citizens in the society is threatened by such reckless executive action. It is often found that the licensing authorities are not exercising their powers for the purposes for which it is given to him.
10. A person may need a licence for his self defence or for the defence of his property. The nature of the job of the person may also require him to possess the fire arm. In all such cases the facts, which constitute the special circumstances, are to be examined by the licensing authority. These circumstances need not be put to any objective test. There may be cases where a person may be the witness of a heinous/crime and is under threat or the nature of his occupation may require him to keep the fire arm. The licensing authority must also look into the background and character of the person, and the type of fire arm required by such person before grant of licence. The fact, that a person is a contractor and alleges to have some unspecified enmity, is not a sufficient ground to grant fire arm licence.
11. The writ petition is dismissed with observations that the State Government shall issue necessary directions to all the licensing authorities to strictly adhere to the provisions of the Arms Act for grant of fire arm licences and make obligatory for all the licensing authority to give adequate and special reasons based on material on record for such grant or the renewal of existing licences.”
28. Observations to similar effect were made in Parvez Ahmad Vs. State of U.P. and others 2006 (55) ACC 669.
29. Stage is now set to examine the relevant provisions of the Arms Act, 1959 hereinafter referred to as the “Act” and the Arms Rules, 2016 hereinafter referred to a the “Rules” relating to grant/refusal of firm arms license.
30. Restrictive nature of the legislative intent regarding acquisition and possession of firearms is evident in Section 3(1) of the Arms Act, 1959 which contemplates that no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of the Arms Act, 1959 and the Rules framed thereunder. The provisions relating to grant of licenses are contained in Chapter III of the.
31. Section 13 of thedeals with the manner of grant of licenses and is reproduced below:
“13. Grant of licences.―(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
[(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.
(2A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:
Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.].
(3) The licensing authority shall grant—
(a) a licence under section 3 where the licence is required―
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection: Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or
(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;
(b) a licence under section 3 in any other case or a licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.”
32. Section 14 of theprovides for refusal of licenses and speaks 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.”
33. The scheme of the provisions of the Arms Act, 1959 for grant and refusal of firearms licences was analysed by a learned Division Bench of this Court in State of U.P. and others Vs. Mahipat Singh (2014) 2 ADJ 134 thus:
“16(3)….Clause (a) of sub-section (1) of Section 14 would thus indicate that a licence under Section 3, Section 4 or Section 5 shall be refused where it is required in respect of any prohibited arms or prohibited ammunition. In any other case under ChapterII, a licence shall be refused where the licensing authority has reason to believe that the person who requires a licence is prohibited by the or by any other law from acquiring, having in his possession or carrying any arms or ammunition; or that he is of unsound mind or unfit for any reason for a licence under the. Similarly, a licence shall be refused where the licensing authority deems it necessary for the security of the public peace or public safety to refuse the grant of such licence. In other words, the effect of Section 14 is to provide a catalogue of circumstances in which notwithstanding anything in Section 13, a licence shall be refused. This does not mean that in all other cases a licence must necessarily be granted. Section 14 specifies the grounds when a licence shall be refused, but even otherwise, under Section 13, the licensing authority is duty bound to apply its mind to all the relevant facts and circumstances in determining as to whether the licence should be granted or refused. In those cases which would fall within the ambit of Section 14, the licensing authority must necessarily refuse the licence.”
34. Provisions of the Rules which have a bearing on the issue shall now be discussed.
35. Rule 11 of the Rules provides for the application for grant of license and its contents. The application has to be submitted in various statutory forms Form A1 to A14 as applicable to the category of license applied. Necessary information has to be disclosed in the application and the same has to be accompanied by supporting documents required for processing the application. Rule 11 also mandates the applicant not to suppress any factual information or furnish any wrong information in the application form. Column 18 to Form A1 requires the applicant to detail claims for special consideration for obtaining the license.
SCHEDULE III
PART II
Application Forms
Form A-1
(for individuals)
Forms of application for an arms license in Forms II, III and IV
(see Rule 11)
18 Claims for special consideration for obtaining the license, if any
(attach documentary evidence)
- Declaration:
I hereby declare that the above particulars given in the application are true, complete and correct to the best of my knowledge and belief. I understand that in the event of any information being found false or incorrect at any stage, I am liable to be proceeded against and action taken under the relevant provisions of the Arms Act, 1959, the Arms Rules, 2016, and other central enactments or the law for the time being in force.
Place……
Date…..
Signature/Thumb-Impression of applicant
36. Rule 12 of the Rules cites the obligations of the licensing authority granting a license. The provision also details categories of persons whose application for grant of licence may be considered:
“12. Obligation of licensing authority in certain cases.-
(2) For grant of a license for the restricted arms or ammunition specified in Category I(b) and I(c) in Schedule I, the licensing authority, may consider the application of-
(a) any person who faces grave and anticipated threat to his life by reason of-
(i) being resident of a geographical area or areas where militants terrorists or extremists are most active; or
(ii) being the prime target in the eyes of militants, terrorists or extremists; or
(iii) facing danger to his life or being inimical to the aims and objectives of the militants, terrorists or extremists; or
(b) any Government official who by virtue of the office occupied by him or by the nature of duty performed by him and / or in due discharge of his official duty is exposed to anticipated risk of his life; or
(c) any Member of Parliament or Member of Legislative Assembly, who by virtue of having close or active association with anti-militant, anti-terrorist or anti-extremist programmes and policies of the Government or by mere reason of holding views, political or otherwise, exposed himself to anticipated risk of his life; or
(d) any family member or kith and kin of a person who by the very nature of his duty or performance (past or present) or position occupied in the Government (past or present) or even otherwise for known or unknown reasons exposed himself to anticipated rise to his life; or
(e) any other person, for any legitimate and genuine reason, to the satisfaction of the licensing authority, by passing of a speaking order in this regard:
Provided that before grant of a license under this sub-rule, the licensing authority based on the recommendations of the District Magistrate and of the State Government concerned and on examination of the police report and after conducting a separate verification from its own source, shall satisfy itself that the applicant requires such licence.
(3) For grant of license for the permissible arms or ammunition specified in Category III in Schedule I, and without prejudice to the provisions contained in clause (a) of sub-section (3) of Section 13, the licensing authority, based on the police report and on his own assessment, may consider the applications of-
(a) any person who by the very nature of his business, profession, job or otherwise has genuine requirement to protect his life and/ or property; or
(b) any dedicated sports person being active members for the last two years, of a shooting club or a rifle association, licensed under these rules and who wants to pursue sports shooting for target practice in a structured learning process; or
(c) any person in service or having served in the Defence Forces, Central Armed Police Forces or the State Police Force and has genuine requirement to protect his life and/ or property.”
37. Regime for grant of arms licence so envisaged in the and the Rules framed thereunder was construed by this Court in State of U.P. Vs. Mahipat Singh (supra) in the following manner:
“16...In considering the grant of a licence, the authority is duty bound to consider such facts as may be personal to the applicant as well as the impact of the grant of the licence on the safety and security of others which may be impinged by the grant of the licence. Ultimately, the governing test is whether the public interest in the maintenance of law and order and public peace or safety would be enhanced or retarded by the grant of a fire-arm licence.
17. Hence, the scheme of the and the Rules indicates that a wide discretion has been given to the licensing authority while deciding applications filed for grant of licences and it is not possible to subscribe to the broad general proposition which has found favour with the learned Single Judge.
18. Undoubtedly, the licensing provisions of the would require that the power which is vested in the competent authority to grant or refuse the grant of a licence must not be exercised arbitrarily or whimsically but for just and sound reasons. The maintenance of law and order and public peace and safety is the responsibility of the State. The grant of a licence for a fire-arm is governed by the licensing provisions which are contained in the. A citizen cannot assert a right to hold a fire-arm. In every case where an application for the grant of a licence is made, the authority is duty bound to examine whether sufficient ground has been made out for grant of a licence. The discretion which is conferred upon the statutory authorities cannot be confined to fixed categories.”
38. Though State of U.P. V. Mahipat Singh (supra) was rendered prior to Rules. However in light of the scheme of the Rules, the exposition of law in State of U.P. Vs. Mahipat Singh (supra) continues to be applicable to the amended Rules as well.
39. Government Order dated 08.11.2018 prescribes that apart from holders of certain offices, persons who have a requirement on account of threats to their lives are entitled to have their applications for grant of arms licenses considered. Relevant extracts of the Government Order dated 08.11.2018 are reproduced below:
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40. The scheme of the read with the Rules, the Government Order dated 08.11.2018 and holdings of this Court in Jitendra Singh (supra) create a framework of arms licensing in the State of U.P. which is not permissive in nature but restrictive in its operation.
41. The judgements cited at the Bar by Sri Sanjeev Kumar Pandey learned counsel for the petitioner have been rendered by learned Single Judges’ of this Court and need full consideration.
42. In Ram Chandra Yadav Vs. State of U.P. and another 2010 (69) ACC 490 the learned Single Judge opined as follows:
“9. A perusal of the impugned order shows that the grounds on which the respondent No.2 has refused the licence to the petitioner are that he had no enemies, that there was no special requirement of petitioner to possess a fire-arm licence and that his need was not genuine. The reasons given in the impugned order for refusing the licence to the petitioner are not covered by any of the grounds given in section 14 of theon which the licence may be refused. In my opinion the respondent No.2 failed to consider and decide the petitioner's application for grant of fire-arm licence keeping in view the provisions of section 14 of theand rejected the petitioner's application arbitrarily which has rendered his order totally unsustainable.”
43. The possession of a firearm for personal safety and security was construed as a mode of realizing the fundamental right of life and liberty under the Constitution of India by a learned Single Judge in Arvind Kumar Vs. State of U.P and others 2012 (76) ACC 457 and in Brij Nandan Singh Vs. State of U.P. and others (2011) 75 ACC 331. The holdings of the learned Single Judge in Arvind Kumar (supra) and Brij Nandan Singh (supra) are identically worded and are reproduced below:
“20. 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 tranquillity 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."
44. The judgements rendered by the respective learned Single Judges’ in Bhoore Singh Vs. State of U.P. and another Writ C No. 17507 of 2019, judgement dated 21.05.2019, Indal Singh Vs. State of U.P. and another Writ C No. 17833 of 2019, judgement dated 23.05.2019, Kammod Vs. State of U.P. Writ C No. 39541 of 2019, judgement dated 07.12.2019 considered the issue of rejection of application for fire arm license on the ground that there “there is no threat perception.” Following the rulings of this Court in Ram Chandra Yadav (supra) and Brij Nandan Singh (supra), the learned Single Judges’ in Bhoore Singh (supra), Indal Singh (supra) and Kammod Singh (supra) Judges’ invalidated the denial of arms license on the ground that there was no threat perception against the petitioner. The licensing authorities were thus mandamused, in all the aforesaid judgments:
“In view of the above consideration, it is clear that none of the grounds mentioned for rejecting the application of the petitioner for grant of fire arm license are covered by Section 14 of the Arms Act.
The order dated 27.4.2019 passed by District Magistrate, Mainpuri, is hereby quashed.
The Licensing Authority is directed to issue the fire arms license sought by the petitioner, within a period of three weeks, from the date of production of copy of this order.
The writ petition is allowed.”
45. The same controversy arose for consideration before a learned Single Judge in Mahipat Singh Vs. State of U.P. and others Writ C No. 64953 of 2013, judgement dated 11.12.2013, wherein too the licensing authority had rejected the application for arms licence on the sole footing that there was no perception of threat to life of the petitioner. Holding such reasoning of the licensing authority to be erroneous, the learned Single Judge in Mahipat Singh (supra) stated:
“The court held that a licence can be granted for right to life and liberty which includes within its ambit right of security and safety of a person being a fundamental right. The petitioner was entitled to get a fire arm for the purpose of personal safety and security. The court also held that the order passed by the District Magistrate was based on surmises and conjectures.
Inspite of this direction, the District Magistrate again rejected the application vide an order dated 6.1.2012 holding that the petitioner does not have any threat to his life.…..........
…........ The court finds that the observation made by the writ court in its judgment dated 11.10.2011 has not been adhered to by the District Magistrate. The District Magistrate was bound by such observations and could not ignore such observations. By ignoring such observations the District Magistrate became guilty of contempt of the court.
In the instant case, the District Magistrate has mechanically, without any application of mind and without considering the observations of the writ court has again passed an order rejecting the petitioner's application for grant of an arms licence solely on the ground that there was no perception of threat to the life of the petitioner. Such reasoning adopted by the respondent is patently erroneous and against the provisions of Section 14 of the Arms Act. Even otherwise, the court finds that sufficient reasons have come on record to indicate the fear of the petitioner of his life where his real brother was murdered by some assailants, and that, by itself, is a sufficient ground. It is not necessary that the petitioner should intimate the District Magistrate the name of the persons against whom he has a threat. It is sufficient for the petitioner to indicate the reasons.”
(emphasis supplied)
46. The judgment of the learned Single Judge of Mahipat Singh (supra) carried in appeal by the State and was registered as Special Appeal No.62 of 2014, State of U.P. and others Vs. Mahipat Singh 2014 (2) ADJ 134 [LQ/AllHC/2014/167] , Special Appeal No. 62 of 2014; judgement dated 15.01.2014. The learned Division Bench in State of U.P. and others Vs. Mahipat Singh (supra) set aside the judgment of the learned Single Judge rendered in Mahipat Singh (supra) and dismissed the writ petition.
47. The learned Division Bench in State of U.P. and others Vs. Mahipat Singh (supra) found that the District Magistrate justifiably inferred that there was no danger to life and liberty of the respondent and that such findings recorded by the District Magistrate are not perverse by holding :
“22. The District Magistrate, in our view, justifiably inferred that there was no danger to the life or liberty of the respondent as the disclosure of such information was necessary to enable the District Magistrate to decide whether a case for the grant of a licence had been made out. The District Magistrate, while passing the order dated 29 August 2013, also observed that the incident in which the brother of the respondent had been murdered had taken place in 2007 which was nearly six years earlier and the respondent had not placed any material to indicate that during this period of over six years there was any basis or foundation to infer a threat perception to his life. It cannot, therefore, be said that the findings recorded by the District Magistrate are perverse.
23. The learned Single Judge has held that the reasons which weighed with the District Magistrate are patently erroneous and against the provisions of Section 14 of the. This conclusion of the learned Single Judge is not correct. Whether there is a perception of threat to the security of a citizen, is a matter which has to be considered by the licensing authority. The learned Single Judge has erred in substituting his opinion about a perception of threat with that of the District Magistrate. We must hasten to add that in a case where discretion is conferred on a public authority to grant or refuse a licence to hold a firearm, the scope of judicial review is limited. The Court has to consider whether any irrelevant or extraneous consideration has been taken into account by the authority and or if it ignored relevant, valid and germane matters. In a case like the present, where the relevant circumstances have been taken in consideration and no extraneous considerations were taken into account, it would be outside the purview of judicial review of the Court to substitute its own opinion with the opinion of the licensing authority.
(emphasis supplied)
24. For the aforesaid reasons, we are of the view that the order which was passed by the District Magistrate was manifestly in accordance with law and did not call for any interference by the learned Single Judge in the exercise of the writ jurisdiction under Article 226 of the Constitution.”
48. The learned Division Bench in State of U.P. and others Vs. Mahipat Singh (supra) relied on high authority of this Court to reiterate that the fundamental right of life and liberty vouchsafed by Article 21 of the Constitution Of India did not bring the right to hold a firearm within its embrace.
49. The legal position which can be distilled from the preceding narrative is this. The learned Single Judges’ in Ram Chandra Yadav (supra), Bhoore Singh (supra), Indal Singh (supra), and Mahipat Singh (supra) essentially held that refusal of an arms license on the foot that the applicant did not face any threat to life and property was arbitrary and illegal. The said judgments then mandamused the licensing authority to grant the arms license. It also follows from these decisions that denial of an arms license is not an option with the licensing authority when it finds that there is no threat to an applicant’s life and property.
50. The entitlements so created in favour of an applicant for an arms license virtually negated the discretion vested in the licensing authority by law. The restrictive conditions for grant of firearm license created by legislative enactments and government policy, yielded to a liberal regime espoused in court rulings. This position of law created by the said judgments entered by learned Single Judges’ was reversed by the proposition of law propounded by the learned Division Bench in State of U.P. Vs. Mahipat Singh (supra).
51. The learned Division Bench by its judgment in State of U.P. Vs. Mahipat Singh (supra) restored the discretion of the licensing authority vested in it by statute and policy. The limited scope of the judicial review in such matters is reiterated. Primacy is given to the threat assessment made by the competent authorities. Absence of danger to life and liberty of an applicant for firearms license, can be a valid and lawful reason for refusal of the firearm license. As a sequitor, lack of genuine requirement may result in denial of an arms license. Mere desire to hold an arms license is distinguishable from a genuine requirement to possess a firearm. It is the latter requirement that has to be enquired into by the licensing authority.
52. However the above holding in State of U.P. Vs. Mahipat Singh (supra) was caveated by emphasizing that the discretion of the licensing authority cannot be exercised arbitrarily. A perverse or an illegal decision of the authority can be judicially reviewed.
53. These illustrative examples will help. Special consideration claimed for obtaining license like threats arising from the very nature of business, profession, job or otherwise has to be clearly stated by the applicant in the application form. The same should be specifically enquired into and reflected in police reports and ought to be searchingly examined by the licensing authority. Vitiated threat appreciations or where specific threats are ignored by the police authority must also be duly scrutinized by the licensing authority.
54. The order declining the application for arms should reflect due application of mind to all relevant considerations.
55. The judgements rendered by the learned Single Judges’ in Ram Chandra Yadav (supra), Bhoore Singh (supra), Indal Singh (supra) and Kammod (supra), Brij Nandan (supra), Arvind Kumar (supra), Kailash Nath (supra) and Rana Pratap (supra) are contrary to law laid down by the learned Division Bench in State of U.P. Vs. Mahipat Singh (supra). The judgment of the learned Division Bench rendered in State of U.P. Vs. Mahipat Singh (supra) relevant provisions of the Arms Act, 1959, the applicable Arms Rules and the Government Order dated 08.11.2018 were not referred to the learned Single Judges’ in Bhoore Singh (supra), Indal Singh (supra), Kammod Singh (supra). Hence all the said Single Judges’ judgments are per incuriam and do not constitute binding precedents.
56. The impugned order shall now be considered in light of above narrated legal and constitutional perspectives established by various judgments of this Court.
57. The impugned order dated 05.07.2021 passed by the licensing authority as seen earlier records that the petitioner does not fall in the category of various persons who are entitled to arms license by virtue of the office they hold and the duties they discharge. The threat assessment to the life and property of the petitioner was made by professional police agencies. According to the police authorities, the petitioner does not face any danger to his life and property. The licensing authority agreed with the recommendation of the police authorities to deny the arms license to the petitioner. The licensing authority then recorded its independent satisfaction on the issue. The said line of enquiry led the licensing authority to find that the petitioner did not have a genuine requirement of an arms license.
58. In the wake of such findings the licensing authority rejected the application for grant of arms license.
59. The material before the licensing authority was of a credible nature. No challenge has been laid to impeach the credibility of the material before the licensing authority including the police reports and reports of the revenue authority. The impugned order reflects due application of mind to all relevant considerations.
60. The order passed by the licensing authority is well reasoned. No special requirement for obtaining the license which was claimed but overlooked has been brought out in the pleadings or shown from the records. A point needs to be noted. The petitioner pleads in the writ petition that he is a grain merchant and has appended his application form. However the column pertaining to occupation has been left blank in the said application form. Perversity in the findings or procedural impropriety while passing the impugned order are not disclosed from the pleadings and the records. The conclusions reached by the licensing authority are reasonable. The impugned order is consistent with the mandate of the and the Rules requirements of the Government Order dated 08.11.2018. The impugned order also accords well with the law laid down by Division Bench of this Court in Jitendra Singh (supra), and also the pronouncement of the learned Division Bench in State of U.P. and others Vs. Mahipat Singh (supra).
61. There is no infirmity in the impugned order dated 05.07.2021.
62. The writ petition is liable to be dismissed and is dismissed.
