THE RIGHT TO BEAR ARMS IS EMBEDDED IN ART. 21 OF THE CONSTITUTION, AND HENCE IT IS A FUNDAMENTAL RIGHT.

( 1 ) ABDUL Hameed s/o Late Ali Husain r/o Village Malak Harhar, P. S. Saraon, District Allahabad, by means of this writ petition, has challenged the order of the City Magistrate, Allahabad dated 29-8-1992, as confirmed by the order dated 1 -11-1992 of the District Magistrate, Allahabad (Appellate Authority) refusing to grant licence for D. B. B. L. gun to the petitioner. It is stated in the writ petition that the petitioner belongs to a respectable family which has sufficient immovable property but of late unsocial elements have turned their evil eyes towards the life and property of the petitioner. The petitioner, therefore, made an application for the licence of a D. B. B. L. gun. It is further stated in the writ petition that the petitioner does not suffer from any disqualification for obtaining a gun licence, that the police of P. S. Saraon has recommended the grant of licence vide its report dated 23-7-1992. The order of the City Magistrate, dated 29-8-1992 is quoted in Para No. 6 of the writ petition. The only reason assigned for the refusal of the licence to the petitioner is that in the village of the petitioner there are 33 licences. Only for the above reason the learned City Magistrate has refused to grant licence to the petitioner.

( 2 ) ON 3-2-1993 the learned Standing Counsel prayed for (and) was granted two weeks time to file a counter-affidavit. No counter-affidavit was filed vide office report dated 26-2-1993. The case came up before me on 29-3-1993. The learned Standing Counsel orally requested that further time be granted for counter-affidavit. The learned Standing Counsel, however, could not give any satisfactory explanation as to why the counter-affidavit was not filed even though sufficient time has elapsed. The case is of Allahabad District and even a weeks time was more than sufficient for filing a counter-affidavit. It has become almost a practice for the concerned officials to take time without any reason and cases linger on indefinitely on this score. This sort of practice also breeds corruption, therefore, no further time was allowed.

( 3 ) I have heard the learned counsel for the petitioner and the learned Standing Counsel on merits of the case.

( 4 ) THE only ground, on which licence has been refused to the petitioner is that there are already 33 licences in the village of the petitioner. This is hardly a ground for refusal of licence to the petitioner because if the petitioner requires licence for protection of his life and property any number of fire arms in the village have no bearing on his need. It is a common knowledge that now a days no one dares to come out to protect others at the risk of ones ownself and further get involved in unnecessary proceedings before the police and ultimately in the court and at the same time earn the wrath of criminals. These days one has to protect his own self and cannot depend on others for this purpose. The ground for refusal of the licence to the petitioner is patently arbitrary and unreasonable. In a recent case of Sayed Mohd. Jafar Husain v. State of U. P. , 1992 S Cr D 81 (Writ No. 7437 of 1982 decided on 25-7-1991) Honble D. P. S. Chauhan, J. that in the village of the petitioner there are already five fire arms licences. The ground is extraneous to law. The petitioner is not a person falling in the prohibited category provided under Section 9 of the Act as he was not the person who has not completed the age of 21 years and was not a person convicted for any offence of violence or moral turpitude and was not a person required to execute a bond under Chapter VIII of the Code of Criminal Procedure, 1973 for keeping peace or for keeping a good behaviour. "

( 5 ) I am in respectful agreement with the view of law expressed by Honble D. P. S. Chauhan, J. in the case of Sayed Jafar Husain (supra) that a licence cannot be refused on extraneous considerations. In the case of Delhi Transport Corporation v. D. T. C. Mazdoor Congress, (1990) 61 Fac LR 75