Court No. - 21 Case :- WRIT - C No. - 44470 of 2009 Petitioner :- Anil Pandey Respondent :- State Of U.P. & Others Petitioner Counsel :- Kailash Pati Pandey,Vimal Kumar Dwivedi Respondent Counsel :- C. S. C. Hon'ble V.K. Shukla,J.
Petitioner has approached this Court questioning the validity of order dated
18th July, 2008 passed by District Magistrate, Kanpur, the licensing authority
and its affirmance in appeal, by means of the order dated 20th July, 2009
passed by the appellate authority, Commissioner, Kanpur region, Kanpur .
The brief argument of the case is that petitioner is having fire arm licensee
and in respect of his complicity in case crime no. 97 of 2008 under section
21/22 of the NDPS Act, proceedings were undertaken and he was shown to
have been arrested on account of his involvement in the said criminal case, as
such recommendation was made for initiation of proceeding against petitioner
under the provisions of Indian Arms Act and in this direction a show cause
notice was issued to the petitioner on 19th May, 2008. The petitioner in his
turn submitted his reply on 2nd July, 2008. The Licensing Authority was not
satisfied with reply so submitted by the petitioner and proceeded to pass an
order of cancellation. The petitioner filed an appeal and the same is also been
dismissed. At the said juncture present writ petition has been filed.
In the writ petition counter affidavit has been filed , to which a rejoinder has
also been filed and along with the rejoinder affidavit, a copy of the judgment
and order dated 18th March, 2010 passed by the Additional Sessions Judge/
FTC court no. 4 has been appended.
After pleading mentioned above, have been exchanged, present writ has been
taken for hearing and disposal with the consent of the parties.
Sri Kailash Pati Pandey, learned counsel for the petitioner contended that
once the very foundation and basis of proceeding initiated became non
existence on account of order of acquittal being passed then in such a situation
and in this background, order of cancellation as affirmed in appeal, can not be
sustained as such writ petition deserves to be allowed.
Countering the said submission, Learned Standing Counsel contended that
rightful view has been taken in the matter, as such no interference,
whatsoever, should be made with the order impugned.
After respective argument have been made, factual position which emerges is
that on account petitioner’s complicity in case crime no. 97 of 2008 under
section 21/22 NDPS Act, proceedings for cancellation of firearm license had
been initiated. This is accepted position that the said fire arm in question was
not used in commission of any offence whatsoever however it has been
suggested that petitioner was involved in any smuggling of smacks and in
order to facilitate such offence in question the said firearm was used by him.
The entire basis and foundation for initiation proceedings was prosecution of
the petitioner in case crime no. 97 of 2008 under section 21/22 NDPS Act and
apart from the said criminal case there has been no other material against the
petitioner. The petitioner was put to trial and thereafter the competent
criminal court on 18th March, 2010 has passed an order of acquittal. Once this
is the factual scenario that in the said criminal case prosecution has not been
in a position to prove the criminal case against the petitioner, the very basis
and foundation for cancellation of fire arm license became non existent, the
impugned order of cancellation as affirmed in appeal, can not be sustained. In
case petitioner has valid subsisting license, then fire arm in question be
returned to him provided there is no legal impediment. In case validity of
license has elapsed, then renewal proceeding be undertaken in accordance
with law. Return of fire arm shall abide by out come of the renewal
proceeding.
With the above observation, writ petition is allowed.
Order Date :- 21.7.2010
SR