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Gujarat High Court
Judgename :J.B.MEHTA, J.M.SHELAT
RATILAL BHOGILAL SHAH - Appellant
Versus
STATE - Respondent
S.C.A.152 of 1961
Decided On : 02/12/1965
Constitution of India – Articles 226 and 227 – Indian Arms Act 1878 – Section 18 – Indian Arms Rules 1951 – Rule 41-A, B – Indian Penal Code – Secs. 143 457 342 and 352 – Arms License – S.C.A. – THIS petition is directed against the order dated November 23 1959 suspending the petitioners arms licence and the order cancelling the same – Respondent No. 3 the District Magistrate by the order suspended the petitioners licence on the ground of security of public peace – When matter came up for hearing the under-secretary to respondent No. 1 the State of Gujarat filed an affidavit stating that the order cancelling the licence of the petitioner was finally passed by the Additional District Magistrate and the said order was served on the petitioner and so the petition had become infructuous – THE petitioners case is that no copy of the said final order was served on him and the petitioner challenged the said orders on the following ground that both the orders of suspension and cancellation of the licence were null and void as no reasons were recorded as required under section 18 of the Act before they were passed by the authority concerned – Held, Provision of appeal under rule 41a and of disclosure of reasons at least before the appellate authority under rule 41b would show that the recording of these reasons is provided by way of a salutory safeguard as a fetter on the exercise of this wide power so that the same may not be arbitrarily or capriciously exercised. If this necessary safeguard is ignored the very object for which this provision is inserted would be wholly defeated – The only protection afforded to the subject would therefore be nullified if it were held that the requirement was anything but mandatory – Court therefore hold that if the authority before passing the order has not recorded the reasons in writing for arriving at the subjective satisfaction as to the necessity of such order for securing public peace the same must be quashed as null and void – What the (respondent no3) considered to be the reason was really a conclusion or subjective satisfaction which he had arrived at viz. the necessity of securing public peace – But he has not recorded the reasons for arriving at the said conclusion – That order also suffers from the same defect as the suspension order – There also what is stated is the bare conclusion viz. the necessity of securing public peace and no reasons for reaching the said conclusion have been recorded either in the order or in any record by the concerned authority – Therefore both these orders are in clear contravention of sec. 18 and must be quashed –Petition Allowed
( 1 ) THIS petition is directed against the order dated November 23 1959 suspending the petitioners arms licence and the order dated November 22 1960 cancelling the same.
( 2 ) THE petitioner is an Indian citizen residing at Hathnoli in Kaira District and is carrying on extensive cultivation in vast areas. He was granted a fire-arm licence No. POL. MD. 120 enabling him to own possess and hold a Bridge-Load gun for self protection and the said licence was to expire on december 31 1960 During the pendency of one criminal complaint filed against the petitioner by one Chhotabhai Jivabhai under secs. 143 457 342 and 352 of the Indian Penal Code on or about March 14 1959 respondent No. 3 the District Magistrate of Kaira by the order dated November 23 1959 suspended the petitioners licence on the ground of security of public peace. The material part of the said order at Annexture A is as under:-"fire arms licence in form XVI bearing No. MD 120 for a B. L. Gun for self protection issued in the name of Shri Ratilal Bhogilal Shah of Hathnoli Ta. Mehmadabad is suspended under sec. 18 (a) of the Indian Arms Act for the public peace. "
( 3 ) IT is the case of the petitioner that he was acquitted in the pending criminal case on February 29 1960 as the complainants case was found to be a cooked up story. He therefore applied for restoration of licence on March 23 1960 but his request was rejected by the 3rd respondent by his order dated August 25 1960 and by the letter dated October 18 1960 the petitioner was informed that he would not be given reasons as the said order not to return the arm was not in the form of an order. The petitioner thereafter appealed against the order suspending his licence on October 28 1960 and the said appeal was finally rejected on January 16 1961 as being time-barred by respondent No. 2 the Commissioner of Revenue Baroda. The petitioner therefore challenged the said suspension order in this petition under Articles 226 and 227 of the Constitution of India. In the affidavit filed by respondent No. 3 it was the case of respondent No. 3 that the order of suspension was made after calling for reports from the police after considering the general security of public peace and after a proper application of mind to this question. In para 12 he stated that the said order did mention the reasons that it was for the security of the public peace that the order was passed. He further stated that the second order dated August 25 1960 was also a proper order inas much as it was made after considering reports from the police the judgment of the Court the facts and circumstances of the case the general security of public peace and after a proper application of mind to this question. It is also stated that the said order was in continuation of the order of suspension and the reasons mentioned in the said order had not changed and they were the came viz. for the general security of public peace and those reasons were sufficient to warrant making of the said order. Finally in para 18 he had stated that the authorities had to look to the general security of public peace as a whole and therefore the said order suspending and cancelling the arms licence of the petitioner was a proper and valid order. When matter came up for hearing the under-secretary to respondent No. 1 the State of Gujarat filed an affidavit stating that the order cancelling the licence of the petitioner was finally passed by the Additional District Magistrate on November 22 1960 and the said order was served on the petitioner and so the petition had become infructuous. The said order had been annexed to the said affidavit at Ex. 1 and the material part thereof is as under:-"fire arms licence in form XVI bearing No. MD 120 for a B. L. Gun for self protection issued in the name of Shri Ratilal Bhogilal Shah of Hathnoli Taluka Mehmadabad suspended under this office order No. P. O. L. M. S. 120 dated 23-11-59 is hereby cancelled under sec. 18 (a) of the In
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