It seems that gradually the legal fraternity is moving in the direction to understand the fact that RKBA is guaranteed under Articles 19 and 21 of the Constitution of India (https://www.lawyersclubindia.com/forum/RKBA-guaranteed-under-Articles-19-and-21-of-Constitution-36011.asp) and the Arms Act 1959 is just a regulatory law to regulate this fundamental right. Hence the utterance by the High Court that the grant of firearm licence is not a privilege accorded by the government(in other words, it means that it is accorded/guaranteed by the Constitution).
Below is the copy of entire judgment:
High Court Of Judicature at Allahabad
Court No. - 21
Case :- WRIT - C No. - 49301 of 2011
Petitioner :- Ajay Kumar Gupta
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Yogesh Srivastava
Respondent Counsel :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. Considering the pure legal submission advanced by learned counsel for the petitioner, learned Standing Counsel states that he does not propose to file any counter affidavit and the writ petition may be disposed of finally at this stage under the Rules of this Court.
3. The petitioner's application for grant of firearm licence has been rejected by the District Magistrate, Allahabad vide order dated 15.10.2009 only on the ground that petitioner has not given any special circumstance for seeking firearm licence and the said order has been confirmed by Commissioner by dismissing appeal vide order dated 05.08.2011.
4. Learned counsel for the petitioner submitted that he has applied for firearm licence for his personal safety and the said fact has not been found incorrect or false. The respondents have considered the matter in a most arbitrary and illegal manner by misdirecting themselves on certain aspects which are not relevant for the purpose of considering whether firearm licence should be granted or not.
5. Learned Standing Counsel having gone through the impugned orders could not support the same.
6. This Court in Pawan Kumar Jha Vs. State of U.P. and others, 2010(10) ADJ 782 has held that undue restriction on keeping and bearing arms ought not be based on unfounded fear. Licence is normally to be granted unless there is something adverse.
7. A fire arm licence cannot be denied only on conjectures and surmises and without appreciating the objective of statute under which the power is being exercised. Right to life and liberty which includes within its ambit right of security and safety of a person and taking, adopting and pursuing such means as are necessary for such safety and security, is a fundamental right of every person. Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. In the interest of maintenance of law and order certain reasonable restrictions have been imposed on such right but that would not make the fundamental right itself to be dependant on the vagaries of executive authorities. It is not a kind of privilege being granted by Government to individual but only to the extent where grant of fire arm licence to an individual would demonstratively prejudice or adversely affect the maintenance of law and order including peace and tranquility in the society, ordinarily such right shall not be denied. It is in these circumstances, this Court has observed that grant of fire arm licence ordinarily be an action and denial an exception. In Vinod Kumar Shukla Vs. State of U.P. and others, (Writ Petition No. 38645 of 2011), decided on 15.07.2011 this Court has said:
"When a fire arm licence is granted for personal safety and security it does not mean that in the family consisting of several persons only one fire arm licence is to be granted. Moreover, this cannot be a reason for denial of arm licence. Fire arm licence can be denied only if the reason assigned by applicant or details given by him in application are not found to be correct but merely because there are one fire arm licence already possessed by one of the family member, the same cannot be denied. Grant of fire arm licence should ordinarily be an action and denial should be an exception. The approach of authorities below is clearly arbitrary and illegal. It also lacks purpose and objective of the statute."
8. The authorities empowered to grant licence under the Act ought not to behave as if they are part of the old British sovereignty and the applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of applicant with more pragmatic and practical approach. Unless they find that in the garb of safety and security, applicant in fact intend to use the weapon by obtaining a licence for a purpose other than self defence, it ought not to have been denied such licence. I am not putting the statutory power of authority concerned in a compartment since there may be more than one reasons for exercising statutory discretion against applicant but then that must justify in the context of purpose and objective of statute and necessarily ought not be whimsical.
9. Both impugned orders in the case in hand shows that on wholly conjectures and surmises the authorities have denied petitioner's claim for fire arm licence and have rejected his application in a most arbitrary manner. The two orders, therefore, cannot sustain.
10. In view of above, the writ petition is allowed. The impugned orders dated 15.10.2009 and 05.08.2011 are hereby quashed and the matter is remanded back to the Collector concerned to consider the same afresh in accordance with law and in the light of observations made above and pass a fresh order within a period of two months from the date of production of a certified copy of this order.
Order Date :- 29.8.2011
AK
Source https://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=1390298
Copy of judgment in PDF is also attached below with this post.
