Acting Chief Justice led bench sets aside judgement of Justice Mohit Kumar Shah but does not order return of arms and license

In Md. Kaisar Warsi vs. The State of Bihar Through the Home Secretary & Ors. (2025), Patna High Court's Division Bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy delivered a 8-page long judgement dated May 12, 2025 setting aside the 13-page long judgement dated September 5, 2023 by Justice Mohit Kumar Shah of the High Court which had upheld orders of District Magistrate, Saharsa and Commissioner, Saharsa regarding cancellation of license under Section 17 of the Arms Act. 

The appellant/writ petitioner was a holder of arms license. On March 19, 2021, he was served with a notice by the District Magistrate, Saharsa asking him to explain within 24 hours as to the number of cartridges purchased and spent for a period of 15 years ranging from 2005 to 2020. It appeared from the notice that in the official records, evidence was available of purchase of 1350 cartridges, the last of the purchases having been made on December 25, 2020. The appellant petitioner replied that over a period of 15 years, the cartridges have been spent on special days as also for checking up the fitness of the weapon and he is in possession of 48 cartridges as on that date. Thereafter, the District Magistrate, Saharsa by his order dated August 5, 2021, assumed that the writ petitioner has violated the condition of not indulging in celebratory firing, cancelled the license of the petitioner. This order was sustained by the appellate authority and both the orders were validated by Justice Shah, the Single Judge of the High Court. The reasoning adopted by him in upholding these orders was that even though proscription on celebratory firing was incorporated in the Arms Act only in the year 2019 but then, an additional condition in the Arms Rules, namely, Sub-Clauses -7, 8 and 9 of Arms Rules of 2016, having been violated, the holder of license lost his right for holding such fire-arm and the District Magistrate, Saharsa was perfectly within his rights to cancel his license under Section 17 of the Arms Act.

The High Court's Division Bench observed:"We are not in agreement with the aforenoted logic and reason provided by the learned Single Judge. Section 17 provides the power to the Licensing Authority to vary the conditions subject to which the license has been granted, except such of them as has been prescribed and may for that purpose require the license holder by a notice in writing to deliver up the license to it within such time as may be specified in the notice. A Licensing Authority may, by order in writing suspend a license for any such period which he thinks fit or revoke a license. If the Licensing Authority is satisfied that the holder of the license is prohibited by the Arms Act or by any other law for the time being in force from acquiring, possessing or carrying any arms or ammunition or is of unsound mind or is for any other reason unfit for a license or if it is necessary for the security of the public peace or for public safety to suspend or revoke the license or if the license was obtained by fraud and suppression of material information or if any of the conditions of the license has been contravened. The license could also be revoked or suspended if a license holder fails to comply with the notice under Section 17 requiring him to deliver up the license. It appears that none of these conditions were available for the cancellation of license of the appellant /writ petitioner."

The Bench further observed:"We are also surprised at the contents of the notice given to the appellant asking him to explain within 24 hours, on day to day basis for fifteen years the details of the occasions on which the cartridges purchased by him were spent. We have perused the reply furnished by the appellant, which does not specifically admits of the appellant having spent the cartridges on celebratory firing after 2019. All that the explanation discloses is that 1350 cartridges were acquired over a long period of time from different sources under the license and were spent on special days as also for the purposes of checking the fitness of the weapon so that it is not rendered unfit by disuse. Based on the aforenoted explanation, a police report was called for from the Superintendent of Police, wherein also, no adverse report came against the appellant. Without any further notice to the appellant to deliver up his license and the fire arm and intimating him the reason for proceeding to cancel his license, the license was cancelled only on the ground of having used the weapon for celebratory firing."

Although Justice Shah noted that the proscription of celebratory firing was brought into the statute from the year 2019, he only relied upon three of the clauses, namely, 7, 8 and 9 of Arms Rules of 2016 to justify the order of cancellation of license and its validation by the appellate authority.

Notably, it was recorded in the Justice Shah's judgement that the petitioner had submitted that prior to the amendment of the Arms Act, 1959, which came into effect from December 14, 2019, celebratory firing was not prohibited. It was also submitted that only with effect from that day, Section 25 of the Arms Act, 1959 was amended and sub-section (9) was added thereto, which reads as follows:-
“(9) Whoever uses firearm in a rash or negligent manner or in celebratory gunfire so as to endanger human life or personal safety of others shall be punishable with an imprisonment for a term which may extend to two years, or with fine which lakh, or with both.
Explanation.—For the purposes of this sub-section, “celebratory gunfire” means the practice of using fire-arm in public gatherings, religious places, marriage parties or other functions to fire ammunition.]” 

It was submitted that since celebratory firing was not prohibited prior to December 14, 2019, the petitioner could not have been penalized by cancelling the arms license, hence the order dated August 5, 2021, passed by the District Magistrate, Saharsa, as also the appellate order dated June 3, 2022 was fit to be set aside.

Justice Shah's judgement recorded that the petitioner had submitted his reply dated April 3, 2021, stating therein that he has used 1302 cartridges in between the years 2005 to 2020, for not only testing his rifle but also on the occasion of Eid and Deepawali. His judgement reads: "This Court finds that the amendment in the Arms Act, 1959 has come into force with effect from 14.12.2019, whereby sub-section (9) has been added to Section 25, which prohibits celebrating firing, hence, considering the fact that the petitioner has submitted his reply dated 03.04.2021, admitting therein that he has engaged in celebratory firing on the occasion of Eid and Deepawali in between the years 2005 to 2020, he is definitely liable for penal consequences/cancellation of his arms license, inasmuch as the year 2020 is definitely covered by the aforesaid amendment. Nevertheless, this Court finds that under the old Arms Rules, 1962, certain conditions have been prescribed as pre-requisites for possessing arms license and one of the conditions is that the licensee shall not carry any arms to a fair, religious procession or other public assemblage or within the campus or precincts of any educational institutions, meaning thereby that no arms can be taken to a religious procession or in marriage festivities. In fact, the amended Arms Rules, 2016, which undeniably covers the present case, also postulates various conditions required to be adhered to for possessing an arms license and the same not only prohibits carrying of fire-arms to a fire-arm free zone or in a public place but also prohibits brandishing of fire-arms in public place or firing fire-arms in any public place on the occasion of marriage, public assembly, fair or procession or any public event."

Justice Shah's judgement pointed out that "the petitioner has admitted to celebratory firing on the occasion of Eid and Deepawali festival, apart from having engaged in such firing on the occasion of marriage ceremony as is apparent not only from the reply of the petitioner dated 03.04.2021, but also from the order dt. 03.6.2022, passed by the Commissioner, Koshi Division, Saharsa and from the report of the Police Officer, Sour Bazar Police Station annexed as annexure-4 series to the writ petition, which has been heavily relied upon by the learned counsel for the petitioner, wherein it has been stated that the petitioner has himself informed the said police officer that on the occasion of Eid and other festivals as also on the occasion of marriage ceremonies, he has been engaging in firing in the air." 

Justice Shah's concluded:"this Court finds that the petitioner has not only violated the conditions prescribed for the purposes of possessing an arms license, as postulated under the Arms Rules, 1962 and the Arms Rules, 2016 but has also contravened Section 25 (9) of the Arms Act, 1959, as amended with effect from 14.12.2019, thus the license of the petitioner has rightly been cancelled by the District Magistrate, Saharsa, by the impugned order dt. 05.08.2021. Consequently, the appellate order dated 03.06.2022 also does not suffer either from jurisdictional error or any illegality. Having regard to the facts and circumstances of the case and for the reasons mentioned, hereinabove, I do not find any merit in the present writ petition, hence the same stands dismissed."

Based on documents on record, Justice Shah's judgement had inferred that the petitioner had admitted that he has been engaging in firing in the air on the occasion of Eid and other festivals as also on the occasion of marriage ceremonies even after 2019. 

The Division Bench pointed out that "In the absence of any adverse report and nothing specific in the explanation of the appellant of having admitted to celebratory firing after 2019, the decisions of the authorities, namely, the District Magistrate and the Commissioner appear to be totally unwarranted and based on complete non-application of mind."

The Division Bench concluded:"For the aforenoted reasons, we set aside the orders passed by the District Magistrate, Saharsa dated 05.08.2021 and the Commissioner dated 03.06.2022 in appeal and the judgment of learned Single Judge upholding the aforenoted two orders. However, we direct the District Magistrate, Saharsa/respondent no. 7 to serve a fresh notice to the appellant, within a period of 30 days from today and seek explanation from him as to why his license be not cancelled for having resorted to celebratory firing from 2019 onwards. After the explanation is received and the police report confirms that there had been violation of anyone of the conditions of license, a reasoned order by the District Magistrate shall be passed within a further period of 90 days, which shall be made known to the appellant forthwith. There would be no necessity of returning the arms and license to the appellant in the meanwhile. The appeal stands allowed to the extent indicated above." The other six respondents were: Divisional Commissioner Koshi Division, Saharsa, Superintendent of Police, Saharsa, Additional District Magistrate, (Arms) Saharsa, District Arms Magistrate, Saharsa,  S.H.O. Sour Bazar Police Station, Saharsa and District Magistrate, Saharsa respectively. The judgement of the Division Bench was authored by Justice Kumar.

 

Post conviction in NDPS case, Jharkhand residents are in Buxer and Ara jails, High Court to hear their appeal in August

The 84 page long judgement of the trial court by Additional Sessions Judge-VIII, Bhojpur refers to four accused persons namely, 1) Bijendra Kumar Rai (Bihar), Nav Kumar Ojha (Jharkhand), Shankar Yadav  (Jharkhand) and Pritam Lakda (Jharkhand). Notably, all the four accused persons were acquitted of conspiracy charges (Section 29 of  Narcotic Drugs And Psychotropic Substances (NDPS) Act, 1985) by the trial court. But Bijendra Kumar Rai (Bihar), the kingpin was given the benefit of doubt, and acquitted by the trial court, and the remaining three-truck owner, driver and Khalasi, the cleaner were convicted under Sections 20(b) (ii) (C) and 25 of NDPS Act, 1985. The appeal related to conviction over nine quintals of ganja came up for hearing before Patna High Court's division bench of Justices Ashutosh Kumar and Jitendra Kumar on May 9, 2024. 

 

The order records that the Advocates for Shankar Yadav, Pritam Lakra and Nav Kumar Ojha, the Appellants submitted that "the informant is the Investigator of this case which vitiates the entire prosecution case. It has further been submitted that none of the mandatory provisions of the NDPS Act has been complied with." The argument was submitted by the counsel for the second appellant. 

 

The High Court's order reads: "We have also been informed that the wife of another co-convict is mentally ill and, therefore, no appeal has been preferred on his behalf as yet. Apart from this, this Court has been informed that the main accused of this case has been acquitted on a specious plea which is not sustainable in the eyes of law. Though, taking into account the quantity of narcotics recovered from a vehicle of which the appellants are driver and cleaner respectively, we are not inclined to suspend their sentence presently. The prayer is rejected. However, we direct the registry to prepare the paper book urgently and get this case listed for final hearing in the second week of August commencing from 5th of August, 2024. We have said so for the reason that one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens." 

 

The second appellant, a resident of Jharkhand is in Buxer jail. The first appellant is in Ara jail and is represented by Advocate Ravindra Kumar. Advocate Dr. Gopal Krishna  represents the second appellant. He also represents Nav Kumar Ojha, the third convict on humanitarian ground because he is without any legal assistance due to extreme poverty and unsound mental health of his wife. The third convict, a resident of Jharkhand is in Buxer jail as well.

Section 20 of the NDPS Act deals with punishment for contravention in relation to cannabis plants and cannabis. It states that "Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—(a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable..."  Section 20 (ii) b of the NDPS Act states that where such contravention relates to sub-clause (b) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 20 (ii) (C) states that where such contravention relates to sub-clause (b), and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

 

The judgement of the the Additional Sessions Judge-VIII, Bhojpur reveals that Pritam Lakra, the helper of the truck is not covered under the ambit of Section 20 (ii) (b) (C) of the NDPS Act because there is nothing on record to show that he is a cultivator of any cannabis plant or producer, manufacturer, possessor, seller, purchaser, transporter, inter-State importer, inter-State exporter or user of cannabis. It is apparent that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 20 (ii) (b) (C) of the NDPS Act.

As to Section 25 of NDPS Act which deals with the punishment for allowing premises, etc., to be used for commission of an offence. It states that "Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence."

The High Court will hear the appeal urgently in the second week of August 2024 because "one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens."