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It is clear that the Honorable High Court of Bombay, Mumbai has views different from the Mumbai police and the citizens of Mumbai have a right to possess licensed arms.IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2688 OF 2008
Khan Abdul Wahab Usman ...Petitioner
V/s.
The State of Maharashtra & Ors. ...Respondent
Shri S. R. Chitnis i/b. Shri Imran M. Shaikh, Advocate for the Petitioner
Shri B.R. Borulkar, P.P. For the State.
CORAM : BILAL NAZKI &
A.R.JOSHI, JJ
DATED : 12
TH
FEBRUARY,
2009.
P.C.
Heard the learned Counsel for the Petitioner as well as the Public
Prosecutor.
2. Perused the record. The Petitioner is an Advocate of this Court and
is aggrieved of an Order rejecting his application for grant of Arms Licence
under section 3 of the Arms Act, 1951 (hereinafter referred as “the act”).-2-
3. After rejection of his application, he moved an appeal which was also
rejected by the Appellate Authority. Counter Affidavit has been filed by an
Inspector of Police who is attached to Arms and Ammunitions Branch,
Desk-X, in the Office of the Commissioner of Police. In her Counter
Affidavit, it is submitted that the Petitioner had filed an application in Form
III on 15
th December 2005 as he apprehended danger to his life due to the
nature of his work. Inquiry was conducted and during the inquiry it was
found that the Petitioner had no threat to his life due to the nature of his job
and he had never made a complaint of any threat to his life in any Police
Station. Therefore, there was no substantive reason to grant arms license
to the Petitioner.
4. On the last occasion when this case was taken up, we had directed
that the details be furnished to this court of those persons who had been
granted licence in the last three years. That list has been submitted to this
Court. Before considering the rival arguments of the learned counsel for
the parties, it is necessary to have a look at section of 14 of
the Arms Act which deals with granting of arms licence to the
applicants.-3-
Section 14 of the Act is titled as “Refusal of licenses” which in our view is
important. Section 14 lays down as under:
“(1) Notwithstanding anything in section 13, 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 license 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.
-4-(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 license 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.”
5. The Section having titled as “Refusal of licenses” would mean that
as a general rule any person who wants to have licensed weapon should
be granted licence. It becomes clear from mere perusal of section 14(1)
(a)(b) of the Act, where it is laid down that the licensing authority shall
refuse to grant a licence if conditions in Sub-sections (a), (b) of Section 14
(1) and sub-section (2 ) of Section 14 are satisfied. Therefore, if a person
does not suffer from a disqualification under Section 14 (1)(a) (b) or 2 or 13
(2), the authority has to grant a licence. Subsection 14(1)(ii)of the Act
further lays down, where the licensing authority deems it necessary for the
security of the public peace or for public safety, may refuse to grant such
license. Therefore, the perusal of these sections would show that grant of
licence to
-5-a citizen is a rule and refusal to grant license is an exception and unless a
citizen falls in exceptions mentioned in section 14 of the act, the State has
no authority to refuse granting of license. The learned Public Prosecutor
relies upon the manual guidelines 102 and 112 of guidelines framed.
6. We appreciate that State can frame guidelines under Section 14(2)
of the Act, because this gives power to the State to refuse a license,
where the licensing authority deems it necessary for the security of the
public peace or public safety to refuse or grant a license. We understand
that even after having a right to get a license to the weapon under the
Arms Act, 1951 the State cannot be expected to give an arms licence to
anybody who moves an Application before the State. It is the duty of the
state to ensure that licence is not granted to a person who becomes a
threat to the security of public peace or public safety. But, the norms
which have been shown to us are not so elaborate, they merely say that
the licence should not be granted to :
1 A person who does not have a good moral character.
2. He should not belong to a political party who promotes the
philosophy of violence , and
3. He should also satisfy the need for the weapon .
-6-The Public Prosecutor relies on the 3 requirements i.e. any applicant who
applies for grant of licence should show the need for it. The Public
Prosecutor has not been able to tell us any ground which could be
sufficient for the concerned Police Officer to come to the conclusion that
the applicant has no need of the weapon. In any case, that question is not
important because self-preservation is a basic human right of every human
being and every human being can be susceptible to the threats of life even
if he is not a targeted person. There can be so many examples, when a
common man can find himself in need to defend himself. Even on a
roadside, a goonda can try to snatch a purse of a person. Even in the
safe environment of his house, he can face burglary and we understand
that these questions have been taken into consideration by the
respondents while granting 348 licences in the last three years because
most of the licences have been granted on the ground of self protection
and only a few of them have been granted on the ground of threat to the
life from anti-social elements. Some of the licenses have been granted
because their father had a licence, then it was granted to the daughter or a
son. Some of the licenses have been granted to the police officers who
are already in possession of a service weapon. One of the licence has
been granted to a
-7-Resident Medical Officer and no need has been explained as to what was
the need for a Medical Officer to have a gun, if it was only required to be
given because of any threat to the life. We have examined a file
pertaining to an Advocate who has been granted a licence. Basically he
was granted a licence only because his father was in possession of the
licence. The application by Advocate was initially made in Form II and the
notes written by the concerned Police Officer was “Applicant is a lawyer by
profession and he is intending to transfer arms of his father who is 75 years
old.” The Senior Police Inspector, Zone 5 has recommended that the
applicant has no threat, no substantive or justifiable reason, however on
sentimental ground his request may be considered. After this application,
he moved another application in Form III in which it was stated that he
was an advocate by profession and he was dealing with matters pertaining
to builders, therefore, he needed a gun.
7. We have perused the application, the applicant needs the licence
only for personal security and safety. There is a specific column in the
proforma which lays down the needs of licence. Against this
column, the has
-8-Petitioner stated “personal security and safety.” Therefore, he had
never contended before the respondents that there was any threat to his
life as is stated in the counter affidavit. The Petitioner did not at any point
of time sought licence on the ground that there was any danger to his life.
But he sought licence for personal security and safety. We do not find that
there was any reason to reject the application of the petitioner, particularly,
in view of the fact that for same reason licence had been granted to
hundreds of person, in last three years.
8. Before concluding, we want to sum up the conclusion, so that there
remains no ambiguity in future in granting the licences. We hold that
though it is a right of every citizen to apply and get arms licence but it is
within the power of the State Government to refuse the licence on any
ground, if it falls within section 14(2). The State is free to frame more
precise and clear guidelines under section 14(2), so that the chances of
granting licence to the person who are threat to public peace or security
are minimum.
-9-9. In view of the above, the order impugned is quashed.
Respondents are directed to reconsider the case of the Petitioner and
pass appropriate orders in accordance with law, within two weeks from
today.
10. With these observations, the Petition is disposed of.
(A.R.JOSHI, J.) (BILAL NAZKI, J.)
. Perhaps, they feel they can avoid doing a physical inspection as long as you provide the picture?
Yes you may. Attach in a manner so that they cannot officially say they did no receive its copy. For example write on application form, enclosed for your guidance copy of Writ Petition No. 2688 OF 2008 of Hon'ble Bombay High Court.Can this judgement be cited with an application?