1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 459/2010 Mohd. Iliyas Sk. Omar Kirmani, age 45 years, Occ. Business, r/o D.R.T.-28, Labour Colony, Vishwasnagar, Aurangabad. Petitioner V E R S U S 1. The State of Maharashtra. 2. The Principal Secretary, Home Department, Mantralaya, Mumbai – 32. 3. The Commissioner of Police, Aurangabad Division, Aurangabad. ( Copy to be served on the public prosecutor, High Court of Bombay Bench at Aurangabad.) Respondents. Shri Amol N. Kakade, Advocate for the petitioner. Mrs. B.R. Khekale learned APP for the respondents. 2 CORAM : SHRIHARI P. DAVARE, J. DATE : 2 nd AUGUST, 2010. ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith. With the consent of the parties, taken up for final hearing. 2. The petitioner filed present petition under Article 226 and 227 of the Constitution of India, praying for issuance of the appropriate writ to quash the Judgment passed by respondent No.2 i.e. Principal Secretary, Home Department, Mantralaya, Mumbai – 32 in Appeal No. PSA/1010/PK/378/Div-4 dated 17th April, 2010 and also to quash the order passed by respondent No.3 The Commissioner of Police, Aurangabad Division, Aurangabad dated 27.5.2009 and further praying for direction to grant licence to the petitioner under the Private Securities Agency (Regulation) Act, 2005 (for the sake of brevity herein after referred to as ‘the said Act’) in view of the application dated 2nd February, 2009. 3. After filing the present petition, direction was issued 3 by this Court on 5th May, 2010 and it was directed that respondents shall submit an affidavit in support of their case, if they want, and till the disposal of the petition, the respondents shall not initiate action against the petitioner for conducting business without licence. 4. According to the petitioner, he is the proprietor of the Firm namely Impact Services, Aurangabad which is registered under the Bombay Shop and Establishment Act, 1948 and the petitioner is carrying on the business of private securities Agency since last 15 years and has obtained the shop Act licence therefore since 1995 which is produced [at page 41] and about 1000 employees are dependent upon the petitioner and its business. It is the contention of the petitioner that the Private Security Agencies (Regulation) Act, 2005 came into force in the year 2005 and therefore petitioner applied for the licence under the said Act and Rules thereunder on 2.2.2009 to the Commissioner of police, Aurangabad Division, Aurangabad i.e. respondent No.3 and copy of the said application is produced at Exh.’A’(page 18). However, it is the grievance of the petitioner 4 that respondent No.3 passed an order on 27.5.2009 without assigning any ground/reasons therein and thereby rejected the said application of the petitioner for licence and copy of the said order is produced at Exh.B (page 19). 5. Thereafter petitioner preferred appeal under section 14 of the said Act before Principal Secretary, Home Department, Government of Maharashtra, Mantralaya, Mumbai – 32 i.e. respondent No.2 herein and copy of said appeal is produced at Exh.C (page 20). However, said appeal came to be rejected by the said Appellate authority i.e. respondent No.2 by order dated 13.4.2010 which was communicated to the petitioner on 17.4.2010 and copy thereof is produced at Exh.’D’ (page 76 to 79). 6. Being aggrieved and dissatisfied by the said orders dated 27.5.2009 passed by respondent No.3 herein and order dated 17.4.2010 passed by respondent No.2, herein the petitioner has preferred present petition for quashment thereof and for grant of licence to the petitioner as prayed for. 7. Heard learned respective counsel for the parties. 8. After hearing rival submissions advanced by both 5 learned respective counsel for the parties and on perusal of the provisions of the Private Security Agencies (Regulation) Act, 2005 and Rules thereunder, it appears that Section 7 of the said Act contemplates that application has to be made for grant of licence to the Controlling Authority in the form prescribed therefor and it shall be accompanying along with the affidavit and annexures as prescribed thereunder. Subsection 4 of said section 7 prescribe that “On receipt of the such an application under sub- section (1) of Section 7, the Controlling Authority, may, after making such inquiries as it considers necessary and obtaining no objection certificate from the concerned police authority, by order in writing, either grant a licence or refuse to grant the same within a period of sixty days from the date of receipt of application with complete particulars and the prescribed fee.” 9. However, in the instant case, it appears that although the petitioner had submitted an application to respondent No.3, on 2.2.2009, the impugned order came to be passed by respondent No.3 after lapse of more than 60 days i.e. on 27.5.2009 and hence it is amply clear that impugned order 6 dated 27.5.2009 Exh B’ was not passed within the prescribed period by respondent No.3. 10. Moreover, proviso of sub section 4 of section 7 prescribes that “ provided that no order of refusal shall be made unless - a) The applicant has been given a reasonable opportunity of being heard and ; b) the grounds on which licence is refused is mentioned in the order.” However, it is the grievance of the petitioner that no audience was given to the petitioner before passing impugned order of rejection of his application for licence by respondent No. 3, on 27.5.2009. Hence, it is amply clear that the applicant was not given reasonable opportunity of being head before passing the impugned order dated 27.5.2009, although it is contemplated under proviso (a) of sub section 4 of Section 7 of the said Act. Moreover, proviso (b) of sub section 4 of section 7 envisages that the grounds on which licence is refused are required to be mentioned in the order. However, on perusal of the contents of the impugned order, dated 27.5.2009, it is seen that, it is a three 7 line order and no grounds have been assigned for refusal of the grant of licence to the petitioner therein. Hence, it is amply clear that respondent No.3 has not passed impugned order dated 27.5.2009 Exh. B, in accordance with the proviso (a) and (b) of sub section 4 of section 7 of the said Act and therefore, said impugned order dated 27.5.2009 is liable to be quashed and set aside, and also the consequent order dated 13.4.2010 communicated to petitioner on 17.4.2010 passed by Appellate Authority i.e. respondent No.2, also deserves to be quashed and set aside, since aforesaid aspects have not been considered therein. 11. Besides that, on perusal of the impugned order dated 13.4.2010 which was communicated to the petitioner on 17.4.2010, it is seen that three offences registered against the petitioner at City Chowk Police Station, Aurangabad have been referred therein. In the said context, learned counsel for the petitioner invited my attention to first crime No.3089/2000 which is under section 135 of Mumbai Police Act, and submitted that it is a bailable offence and same was disclosed before 8 respondent No.3 in the prescribed application form which is produced at (page 33-37). Moreover, as regards another offence under CR No.145/2003, learned counsel for the petitioner pointed out that he was acquitted from the said offence in the year 2005 itself and since said case was not pending, it was not disclosed in column No.18 of the said prescribed form page 36. As regards third crime i.e. CR No.65/2008, petitioner submitted on oath that he got knowledge of registration of said offence in May, 2009 and respondents have not denied the same on oath, since respondents have not filed any affidavit-in-reply in the present application. Apart from that, learned counsel for the petitioner pointed out that section 6 of the aforesaid Act prescribes that the persons who are convicted for the offences mentioned therein are not eligible for license and mere registration of offence is not contemplated thereunder. Apparently, it appears that, there is substance in the submissions canvassed by learned counsel for the petitioner and therefore, also impugned order dated 13.4.2010 which was communicated to petitioner on 17.4.2010 by respondent No.2 also 9 deserves to be quashed and set aside. 12. In the circumstances, both the impugned orders dated 27.5.2009 and dated 17/4/2010 are erroneous and unsustainable and hence, present petition deserves to be allowed partly in respect of the quashment of both the said orders with liberty to the petitioner to apply for the licence afresh within the period of fifteen days and with directions to respondent No.3 to decide said application expeditiously in accordance with law, and interim order dated 5.5.2010 needs to be continued till then and till 15 days thereafter. 13. In the result, present petition is partly allowed and impugned order dated 27.5.2009 passed by respondent No.3 as well as impugned order dated 17.4.2010, passed by respondent No.2, stand quashed and set aside and petitioner is at liberty to apply for grant of licence, afresh within the period of two weeks, and respondent No.3 to decide the said application, on its own merits, in accordance with law, expeditiously and interim relief granted in favour of the petitioner on 5.5.2010 shall stand continued, till passing such order, by respondent No.3 and till 15 10 days thereafter. However, if the petitioner fails to avail the liberty granted to him within the stipulated period as aforesaid, the interim relief dated 5.5.2010 shall stand vacated thereafter forthwith. 14. Rule is made absolute in aforesaid terms. ( SHRIHARI P. DAVARE ) JUDGE ..... aaa/459.10