M.C. Pathak JUDGMENT
P.K. Goswami, J.
1. This application under Art. 226 of the Constitution is directed against the order of the Deputy Commissioner, Sibsagar, revoking a gun licence, which was confirmed in appeal by the Commissioner of Plains Division, Assam.
2. The petitioner was the holder of a gun licence and the same was in force in 1966 though on 3-7-64, the following order was passed by the Deputy Commissioner, Sibsagar:
Seen Police report conveyed in Memo No. IV/12621, D/-3-6-64. In the interest of public licenses of these 8 (eight) persons are cancelled. Ask S.D.O., Golaghat to collect the guns with licences and to keep in the Court (Gol) Malkhana until further order. Send copy to S.P., also for information.
The petitioner appealed to the Commissioner of Plains Division under Section 18 of the Arms Act, 1959, hereinafter referred to as the Act and the relevant portion of the order of the Commissioner while rejecting the same may be set out:
From the report of the Deputy Commissioner, Sibsagar it is seen that the D. C., passed the orders appealed against on being satisfied on the report of the Police that the weapons of these persons were suspected of being used in poaching in the nearby Kaziranga Game Sanctuary. It is also reported that after cancelling the Gun Licenses the number of poaching cases in the sanctuary have reduced considerably. The Deputy Commissioner therefore was justified in acting on suspicion. If any greater proof were forthcoming the Deputy Commissioner would have prosecuted the suspects in a Court of law. The Act or the Rules thereunder do not also provide that the Deputy Commissioner should give a hearing to the Licensees before revoking the licenses. No one can therefore demand a hearing.
3. Mr. Pathak, the learned Counsel for the respondents, at the outset draws our attention to an unreported decision of a Bench of this Court, in Civil Rule No. 283 of 1966, disposed of on 16-6-67 to which one of us was a party, and submits that the present case is fully covered by the same. It will however, be seen that in that case the only ground urged was that no reasons were given in the order of the Deputy Commissioner or even in the appellate order. The petitioner in that case admitted that no demand was made for the reasons for the order. Therefore, the case proceeded on the assumption that there might have been reasons and if asked for and demanded, as required under the law, would have been either given or refused in the public interest It was not pleaded that the order was defective for non-compliance with the terms of Section 13(3) of the Act nor was the Court called upon to decide the question in that light.
4. In the present Rule, Mr. Goswami, the learned Counsel for the petitioner, strenuously urges for our consideration the following points:
(1) that the order of the Deputy Commissioner, which is based on a Police report stations the reasons disclosed therein, cannot be held to be valid in view of the provisions of Section 17(3)(b) of the Act; and
(2) that no order of cancellation of the licence could be passed without hearing the petitioner.
These submissions will have to be dealt with in this case and we do not think that the decision, on which Mr. Pathak relies, has considered these questions.
5. As is seen from the order of the Deputy Commissioner, which was confirmed by the Commissioner in appeal, the reason for the order was that the petitioner was suspected of poaching in the Kaziranga Game Sanctuary, and; as such, the gun licence had to be cancelled "in the interest of public". The provision for cancellation of a gun licence is contained in Section 17(6) of the Act and the material portions for our purposes may be quoted:
17.(1) * * *
(8) The licensing authority may, by order in writing, suspend a licence for such period as it thinks fit or revoke a licence-
(a) * * * *
(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;
(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 therefore 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.
From the above provisions it is clear that the licensing authority may revoke a licence if it deems It necessary for the security of the public peace and for public safety. The expressions used are "for the security of the public peace" or "for public safety", and not "in the interest of public" which the Deputy Commissioner has stated in his order. The petitioner was holding a licence which was in force and if the same had to be cancelled, the provisions of law in that behalf should have been complied with. It is true that the reasons need not, in a given case, appear in the order itself which was communicated to the petitioner. Under Section 17(3) of the Act all that is necessary for the licensing authority to do was to pass an order in writing, and under Sec. 17 (5) it has to record in writing the reasons for revoking the license.
Under Section 17(5) it is only when the licence-holder makes a demand for furnishing the reasons, a brief statement of the same has to be given. It is, therefore, permissible to communicate the order of revocation to a licence-holder, but care must be taken that before such an order is passed the Deputy Commissioner applies his mind to the facts and circumstances of the entire case leading to the cancellation, and records his reasons for passing the order. The fact that the licensing authority could withhold the reasons from the licence-holder in the public interest goes to show that the reasons must be contained in an order, the only operative portion of which, namely the cancellation of the licence, may be communicated in writing to the licence-holder.
The above conclusion is reinforced by the fact that a change was brought out in the matter, amongst others, of cancellation of licence under the Arms Act particularly by introduction of Section 17(5) wherein the legislature has made provision for withholding the reasons of cancellation in the public interest. The earlier section was Section 18 of the Arms Act, 1878, where such a provision was not there. Since the licensing authority in the public interest can refuse to disclose to the licence-holder the reasons for revocation, it stands to reason that the order containing the reasons may be in a separate document It is in this view of the matter that a conclusion irresistibly follows that what is contemplated in Section 17(6) of the Act is that it is enough if the operative part of the order, which is in writing; is communicated to the petitioner and the reasons can be furnished when demanded provided for under Section 17(5) of the Act
6. Under Rule 6 of the Arms Rules, where a licensing authority is of opinion that it is not in the public interest to furnish reasons for the refusal, renewal, variation of conditions, revocation or suspension, of a licence, to the applicant, the recorded reasons therefore and the facts of the case shall be communicated by him to the appellate authority. There is therefore a salutary provision in the Rules even where the reasons are not disclosed to the petitioner, these are allowed to be scrutinised by the appellate authority so that there is no arbitrariness in the order passed by the licensing authority.
7. In this case, we have now a clear picture of the reasons which were taken note of by the Deputy Commissioner, derived from the Police report, which may be considered as a part of the order. Unfortunately, however, the reasons which are disclosed do not make out a case for revocation of the licence under Section 17(3) of the Act. The learned Commissioner is clearly wrong that a licence of this kind can be revoked merely on suspicion. There must be a finding ay the Deputy Commissioner that on the facts at his disposal he is definitely of the opinion that the licence is liable to be revoked for the "security of the public peace" or "for public safety". The reason given, namely that the petitioner was suspected of poaching in the Kaziranga Game Sanctuary and therefore perhaps committed acts injurious to wild life in the sanctuary, cannot be equated with the requirement of law which necessitates security for the public peace or for public safety to be the Basis or an order of revocation of the licence under Section 17(3) of the Act.
"Public peace" or "Public safety" relate to the peace and safety of the people and do not appertain to animal life. There is no Suggestion in the reasons that security of the public peace or public safety of the kind required under the law were involved in the matter. Under Section 17(3), besides these reasons, there are other reasons under four heads for which a licence could be revoked and it was open to the Deputy Commissioner to find for himself an appropriate reason for revoking the order under any of these heads when applicable. But to cancel a licence under Section 17(3)(b), the order must clearly show that the "security of the public peace" or "public safety" are involved and by no stretch of imagination can it be said in this case that these reasons existed.
8. We are, therefore, satisfied that the order of the Deputy Commissioner is without jurisdiction and is not in conformity with section 17(3)(b) of the Act, and, as such, is liable to be quashed, in exercise of our powers under Article 226 of the Constitution.
9. In the view we have taken on the first point, it is not necessary to consider and decide in this case whether the order of the Deputy Commissioner was bad also on the ground that the petitioner had not been heard before the revocation of the licence.
10. In the result, the petition is allowed and the order of the Deputy Commissioner cancelling the gun licence of the petitioner it quashed. We make no order as to costs.
© Manupatra Information Solutions Pvt. Ltd.