Kerala High Court
Moni Thomas vs State Of Kerala on 7 March, 2014
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
MONDAY,THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936
Crl.MC.No. 1265 of 2014
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AGAINST THE ORDER IN CC 135/2013 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT, THIRUVALLA
CRIME NO. 521/2013 OF KEEZHVAIPUR POLICE STATION , PATHANAMTITTA
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PETITIONER(S):
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MONI THOMAS,
PANICKAMURIYIL HOUSE, MALLAPPALLY,PATHANAMTHITTA.
BY ADV. SRI.P.HARIDAS
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OFKERALA, ERNAKULAM - 31.
2. SUB INSPECTOR OF POLICE,
KEEZHVAIPUR POLICE STATION,
PATHANAMTHITTAPIN - 689 645.
* ADDL.R3 IMPLEADED
3. DISTRICT MAGISTRATE & DISTRICT COLLECTOR,
PATHANAMTHITTA-689645.
IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 7/3/2014 IN
CRL.MA.2279/2014 IN CRL.MC.1265/2014
BY PUBLIC PROSECUTOR SMT.P.MAYA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 07-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
Crl.MC.No. 1265 of 2014
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE-1: TRUE COPY OF THE LICENSE FOR EXPLOSIVES NO.6/95/24/MLP4
DATED 16.5.1995
ANNEXURE-2: TRUE COPY OF THE FINAL REPORT & FIR IN CRIME NO.521/2013 OF
KEEZHVAIPUR POLICE STATION DATED 30.6.2013 AND 14.5.2013
RESPECTIVELY.
RESPONDENT(S)' ANNEXURES
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
K. RAMAKRISHNAN, J.
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Crl.M.C.No.1265 of 2014
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Dated this the 7th day of July, 2014
O R D E R
This is an application filed by the petitioner, who is the sole accused in C.C.No.135/2013 on the file of the Judicial First Class Magistrate Court-Thiruvalla to quash the proceedings under Section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that the petitioner is a dealer in fire works with valid licence from the concerned authorities since 1995 and his licence is being renewed from time to time which is evident from Annexure I. While the petitioner's application for renewal was filed before the expiry of the licence and pending consideration, second respondent inspected the place and registererd crime under Section 9 (B) 1 (b) of Explosives Act and after investigation Annexure-2 final report was also filed against the petitioner. Though the investigating officer was convinced that the petitioner is entitled to get the benefit of deemed licence Crl.M.C.No.1265 of 2014 -2- under Rule 112 (5) of the Explosive Rules, 2008, ignoring the same, the final report has been filed. In fact the petition for renewal was filed long before the expiry of the licence and it was later renewed. So the charge against the petitioner will not lie and proceeding with the case is only an abuse of process of the court. So he has no other remedy except to approach this court with the following reliefs:
"to pass an order quashing Final Report & FIR in Crime No.521/2013 of Keezhvaipur Police Station, Pathanamthitta."
3. Originally the District Magistrate and District Collector, Pathanamthitta was not a party to the proceedngs, who is the licensing authority and as per order in Crl.M.A.No.2279/2014, he was also impleaded as additional third respondent. As directed by this court, the Senior Superintendent of the Office of the District Collector filed a statement regarding the factum of application for renewal etc. which reads as follows:
"1. It is submitted that petitioner has submitted an Crl.M.C.No.1265 of 2014 -3- application for renewal of licence for sale (No.6/95/24) on 26.05.2011 and another application for renewal of licence for manufacture (No.5/95/20) on 06.12.2012. On 18.11.2013 licence for sale bearing No.6/95/24 was renewed. Meanwhile, a report was received from District Police Chief, Pathanamthitta with a request to cancel the explosive licence of petitioner. Both licences have been cancelled by proceedings dated 24.01.2014 of District Collector, Pathanamthitta. On 03.02.2014 itself the copy of above proceedings has been despatched from the office of District Collector, Pathanamthitta to the petitioner. Hiding the above fact that licences have been cancelled as on 24.01.2014, petitioner has submitted this Crl.M.C.
2. In the above circumstances, Crl.M.C. is devoid of any merit and the same is liable to dismissed."
4. Heard the counsel for the petitioner and the learned Public Prosecutor.
5. The counsel for the petitioner submitted that it will be seen from the statement filed by the District Collector, the licensing authority, that application for renewal was pending with them and it was filed within time before the expiry of the earlier licence and it was later granted as well and it is during the interregnum period that the case has been registered. So the petitioner is entitled to get the benefit of deemed licence under Rule 112 (5) of the Explosives Rules, 2008.
Crl.M.C.No.1265 of 2014 -4-
6. The application was opposed by the Public Prosecutor on the ground that it is a matter for evidence.
7. It is admitted fact that the petitioner is a licencee for sale of explosives which is evident from Annexure-I licence. It is also seen from Annexure-I that he is being given licence from 1995 onwards for sale of explosives and also for manufacture of explosive substances. It is also an admitted fact that at the time when the inspection was conducted by the S.I. of Police, Keezhvaipur Police Station, Pathanamthitta, the licence expired on 30.06.2011 and at the time when the shop was inspected, there was no licence as such. It was on that basis that Annexure-2 First Information Report was registered as crime No.521/2013 of Keezhvaipur Police Station alleging offence under section 9B (1) (b) of the Explosives Act, 1884.
8. Section 9B (1) (b) of the Explosives Act, 1884 reads as follows:
"9B. Punishment for certian offences.- (1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules-Crl.M.C.No.1265 of 2014 -5-
(a) x x x x x
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and"
9. So possessing, using, selling or transporting any explosive substance in contravention of rules made under section 5 or of conditions of a licence granted is an offence. But the question here is whether he has filed any application for renewal within time and whether he is entitled to get the benefit of deemed licence is to be considered.
10. Renewal of licence is dealt with by rule 112 of the Explosives Rules, 2008, which reads as follows:
"112. Renewal of licence.- (1) Every licence except the licences granted for a specific period not exceeding one year, shall be renewable for a maximum period of five financial years ending on the 31st March."
(2) Every application under sub-rule (1) or renewal of the licence shall be accompanied by the following documents, namely:-
(a) application in Form RE-1;
(b) the original licence;
(c) prescribed renewal fee.
(3) A licence may be renewed by the authority
empowered to grant such licence:
Crl.M.C.No.1265 of 2014
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Provided that a licence which has been granted by the Chief Controller may be renewed without any alteration by a Controller duly authorised by the Chief Controller in this behalf:
Provided further that a licence, which has been granted by the District Magistrate, may be renewed without any alteration by a Sub-Divisional Magistrate or an Executive Magistrate duly authorised by the District Magistrate in this behalf.
(4) Every application for the renewal of a licence shall be made so as to reach the licensing authority or the authority empowered to renew the licence on or before the date on which the licence expires.
(5) If the application for renewal reaches the renewing or licensing authority on or before the date of expiry, the licence shall be deemed to be in force until such date as the licensing authority renews the licence or until an intimation that the renewal of the licence is refused has been communicated to the applicant.
(6) The same fee shall be charged for the renewal of a licence for each year as for grant thereof:
Provided that if the renewal application together with complete documents is received by the licensing authority after the date of expiry but not later than six months from the date of expiry; and if the licensing authority is satisfied that such delay is beyond the control of the licencee, the licence may, without prejudice to any other action that may be taken in this behalf, be renewed on payment of penalty fee which is equal to one year's licence fee.
(7) In case of an application for the renewal of the licence for a period of more than one year at a time, the fee prescribed under proviso of sub-rule (6), if payable, shall be paid only for the first financial year of renewal.
(8) Every licence granted under these rules other than a licence granted for a specified period shall be renewable for a maximum period of five years where there has been no contravention of the Act or these rules framed there under or of any condition of the licence so renewed.Crl.M.C.No.1265 of 2014 -7-
(9) Where a licence renewed for more than one financial year is surrendered before its expiry, the renewal fee paid for the unexpired portion of the licence shall be refunded to the licencee:
Provided that no refund of renewal fee shall be made for any financial year during which-
(a) the licensing authority received the renewed licence for surrender;
(b) any explosive is received or stored on the authority of the licence.
(10) No licence shall be renewed if the application for renewal is received by the licensing or renewing authority after three months of the date of its expiry.
An application for revalidation received after three months of the expiration of the licence shall be considered as an application for a new licence.
(11) When a licence is renewed by the Chief Controller or a Controller, an intimation to that effect shall be sent to the District Magistrate concerned and when a licence is renewed by the District Magistrate, intimation to that effect shall be sent to the Controller having jurisdiction."
11. Rule 112 (5) says that if the application for renewal reaches the renewing or licensing authority on or before the date of expiry, the licence shall be deemed to be in force until such date as the licensing authority renews the licence or until an intimation that the renewal of the licence is refused has been communicated to the applicant. Crl.M.C.No.1265 of 2014 -8- So it is clear from this rule that if an application for renewal has been filed before the expiry of the licence, then till it is disposed of by the licensing authority it will be deemed to have been in force. In this case it is seen from the statement filed on behalf of the third respondent that renewal application for licence for sale (No.6/95/24) was filed on 26.5.2011 i.e. one month prior to the expiry date i.e. 30.6.2011 and the renewal for licence for manufacture i.e. No.5/95/20 on 6.12.2012 and on 18.11.2013 licence for sale bearing No.6/95/24 was renewed. Later as per the report of the District Police Chief, Pathanamthitta with a request to cancel the explosive licence of the petitioner, the licence were cancelled as per proceedings dated 24.01.2014 and on 03.02.2014 itself the copy of the proceedings have been despatched from the office of the District Collector. So according to the District Collector it was after the cancellation of the licence that the present petition has been filed. The counsel for the petitioner submitted that the order of the District Collector cancelling the licence was Crl.M.C.No.1265 of 2014 -9- stayed by W.P.(C)No.5566/2014 dated 13.3.2014 of this Court.
12. The question now arises for consideration is whether as on the date of registering the crime whether he is having the licence to possess or sell the explosive substances. It is seen from the report submitted by the District Collector that the application for renewal was filed on 26.05.2011 and it was renewed on 18.11.2013 and it is seen endorsed on 28.11.2013 in Annexure-I licence and it was renewed up to 30.6.2014 which of course was said to have been cancelled as per the later order which is under challenge before this Court in W.P.(C)No.5566/2014. So it is clear from this that as on the date of registration of Annexure-2 First Information Report though the licence has expired but an application for renewal was pending and neither cancellation of the licence nor granting of the licence on that application was intimated to the petitioner by the licensing authority till 28.11.2013 when the renewal is endorsed on the licence Annexure-I. So under the Crl.M.C.No.1265 of 2014 -10- circumstances, the petitioner will be entitled to get the benefit of deemed licence as provided under Rule 112 (5) of the Explosives Ruels, 2008 and he will be deemed to have licence to possess and sell the explosives. The prosecutor had no case that the offence alleged that he was not possessing and selling explosives without licence which falls under Section 9B (1) (b) of the Explosives Act, 1884. If he is having deemed licence for possessing and selling as mentioned above, then it cannot be said that he had committed any offence under that Section, in view of the deeming provision provided under Rule 112 (5) of the Explosives Rules, 2008. Since there is an admission in the statement filed by the licensing authority regarding this aspect, there is no necessity for this matter to be relegated to the trial court for deciding the question on the basis of evidence. It is settled law that if there is admitted fact before the court and on the basis of the admitted facts which need not be proved by evidence then that can be relied on by the court for the purspose of considering the Crl.M.C.No.1265 of 2014 -11- question as to whether further proceedings in a criminal matter has to be continued or not. In view of the discussions made above and also in view of the fact that the petitioner is entitled to get the benefit of deemd licence as provided under Rule 112 (5) of the Explosives Rules, 2008, it cannot be said that he had committed an offence under Section 9B (1) (b) of the Explosives Act, 1884 and as such further proceedings on the basis of Annexure-2 First Information Report against the petitioner is nothing but an abuse of the process of court and the same is liable to be quashed.
In the result, the petition is allowed and further proceedings in C.C.No. 135/2013 (crime No.521/2013 of Keezhvaipur Police Station, Pathanamthitta) pending before the Judicial First Class Magistrate Court, Thiruvalla as against the petitioner is quashed.
Office is directed to communicate this order to the concerned court immediately.
Sd/-
K.RAMAKRISHNAN, JUDGE Shg/