IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 WP(C).No. 6492 of 2011(J) ------------------------- PETITIONER(S): --------------- THOMAS.N.A., PROPRIETOR, M/S.NOBEL EXPLOSIVES, KADAYIRIPPU P.O., KOLENCHERRY, ERNAKULAM DISTRICT. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, KAKKANAD, ERNAKULAM - 682 030. 2. THE JOINT CHIEF CONTROLLER OF EXPLOSIVES, SOUTH CIRCLE, CHENNAI - 600 008. 3. THE CHIEF CONTROLLER OF EXPLOSIVES, PETROLEUM AND EXPLOSIVES SAFETY ORGANIZATION, A BLOCK, 5TH FLOOR, CGO COMPLEX, SEMINARY HILLS, NAGPUR - 440 006. 4. THE UNION OF INDIA, MINISTRY OF COMMERCE & INDUSTRY, DEPARTMENT OF INDUSTRIAL POLICY & PROMOTION, REPRESENTED BY ITS SECRETARY (APPELLATE AUTHORITY UNDER THE EXPLOSIVES ACT), UDYOG BHAVAN, NEW DELHI - 110 001. ADV. SMT.D.P.RENU,CGC, FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6492 of 2011 APPENDIX EXHIBITS EXT.P1- COPY OF THE FORUM 21 LICENCE NO.E/HQ/KL/21/49 (E29079) DATED 22.11.05 EXT.P2- COPY OF THE FORUM 21 LICENCE NO.KL-1104/E DATED 24.5.05 EXT.P3- COPY OF THE INDENT FOR EXPLOSIVES DATED 12.4.06 EXT.P4- COPY OF THE INDENT FOR EXPLOSIVES DATED 13.4.06 EXT.P5- COPY OF THE INDENT FOR EXPLOSIVES DATED 19.4.06 EXT.P6- COPY OF THE INDENT FOR EXPLOSIVES DATED 20.4.06 EXT.P7- A TRUE COPY OF THE FINAL REPORT IN CRIME NO.198/2006 DATED 20.4.06 EXT.P8- COPY OF THE FIR IN CRIME NO.201/2006 DATED 22.4.06 EXT.P9- COPY OF THE WOUND CERTIFICATE DATED 20.4.2006 EXT.P10- COPY OF THE INSPECTION REPORT OF THE MOTOR VEHICLE INSPECTOR DATED 22.4.06 EXT.P11- COPY OF THE ORDER OF SUSPENSION DATED 27.4.06 EXT.P12- COPY OF THE SHOW CAUSE NOTICE DATED 27.4.06 EXT.P13- A TRUE COPY OF THE EXPLANATION DATED 16.5.06 EXT.P14- COPY OF THE REPRESENTATION DATED 6.8.08 EXT.P15- COPY OF THE LICENCE RENEWAL ORDER NO.E/SC/KL/22/730 (E31270) DATED 4.4.07 EXT.P16- COPY OF THE LICENCE RENEWAL ORDER NO.E/SC/KL/25/29 (E23264) DATED 27.3.2008 EXT.P17- COPY OF THE LETTER DATED 15.10.08 ISSUED BY THE 3RD RESPONDENT EXT.P18- COPY OF THE JUDGMENT IN W.P.(C).31091 OF 2008 DATED 13.11.08 EXT.P19- COPY OF THE ORDER DATED 7.1.09 OF THE 3RD RESPONDENT EXT.P20- COPY OF THE ORDER DATED 18.6.2010 OF THE 4TH RESPONDENT WP(C).No. 6492 of 2011 -2- EXT.P21- COPY OF THE COUNTER AFFIDAVIT FILED IN W.P.(C).21741 OF 2010 ON BEHALF OF THE RESPONDENTS EXT.P22- COPY OF THE JUDGMENT IN W.P.(C).21741 OF 2010 DATED 7.10.2010 EXT.P23- COPY OF THE ORDER DATED 31.12.2010 OF THE 4TH RESPONDENT EXT.R3(a)- TRUE COPY OF THE STATEMENT BY THE PETITIONER TO 3RD RESPONDENT EXT.R3(b)- TRUE COPY OF STATEMENT BY SRI.JAISON TO 3RD RESPONDENT EXT.R3(c)- TRUE COPY OF STATEMENT BY SRI.HAFEES TO 3RD RESPONDENT EXT.R3(d)- TRUE COPY OF LETTER DATED 6.6.06 BY SRI.TONY. (True copy) P.A. To Judge ANTONY DOMINIC, J ....................................................... W.P.(C).6492/2011 .............................................. Dated this the 22nd day of September, 2011 JUDGMENT Petitioner was issued licence No.E25(23)206/KL-1104/E dated 12.3.2011 (new computerized No.E/HO/KL/21/4(E5214) and Licence No. E/HQ/KL/21/49(E29079) dated 20.10.2005 both in Form 21 of the Explosives Rules, 1983, for the explosives magazines situated at the places indicated in the licence mentioned above. By Ext.P11 order dated 27.4.2006, in exercise of his powers under Section 6E of the Explosives Act, 1884, the third respondent suspended both the licences as an interim measure with immediate effect. Appeals filed against the said order were also rejected by Ext.P19 and P20 orders. The aforesaid orders were challenged before this Court in W.P.(C).21741/2010, which was disposed of by Ext.P22 judgment. Pursuant to the directions in Ext.P22 judgment, Ext.P23 order was also passed by the appellate authority, confirming the order of suspension. It is these orders which are under challenge in the writ petition. 2. When the matter was taken up today, the learned counsel for the petitioner submitted that even if it is assumed that the W.P.(C).6492/11 2 proceedings, pursuant to which the licences were suspended as per Ext.P11, had concluded in an order cancelling the licences, having regard to the fact that five year period has elapsed since then, the petitioner is eligible to make an application for fresh licences. On that basis, it was prayed that the petitioner may be given an opportunity to make fresh applications for licence and the licensing authority may be directed to consider the same, in accordance with law. 3. Heard the learned counsel appearing for the respondents also. 4. It is true as contended by the respondents that Ext.P11 is only an order of suspension pending finalisation of the proceedings initiated against the petitioner. However, even if it is so, the maximum penalty which could have been imposed on the petitioner was cancellation of the licences and even if such an order was passed, in view of Section 6A(iv) of the Explosives Act, disqualification to make an application for fresh licence cannot survive for more than five years. Section 6A reads thus:- 6A - Prohibition of manufature, possession, W.P.(C).6492/11 3 sale or transport of explosives by young persons and certain other persons - Notwithstanding anything in the foregoing provisions of this Act, - (a) no person, - (i). who has not completed the age of eighteen years, or (ii). who has been sentenced on conviction of any offence involving violence or moral turpitude for a term of not less than six months, at any time during a period of five years after the expiration of the sentence, or (iii). Who has been ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974) a bond for keeping the peace or for good behaviour, at any time during the term of the bond, or (iv). whose licence under this Act has been cancelled, whether before or after the commencement of the Indian Explosives (Amendment) Act, 1978 (32 of 1978) for contravention of the provisions of this Act or of the Rules made thereunder, at any time during a period of five years from the date of cancellation of such licence, shall - W.P.(C).6492/11 4 (1).manufacture, sale, transport, import or export any explosive, or (2).possess any such explosive as the Central Government may, having regard to the nature thereof, by notification in the official gazette, specify. (b). no person shall sell, deliver or despatch any explosive to a person whom he knows or has reason to believe at the time of such sale, deliver or despatch, - (i). to be prohibited under clause (a) to manufacture, sell, transport, import, export or possess such explosive, or (ii). to be of unsound mind. 5. Having regard to the above, it is unnecessary for this Court to examine the merits of the contentions raised and the writ petition is disposed of directing that it will be open to the petitioner to make fresh application for licences in which event, same will be dealt with by the licensing authority in accordance with law. ANTONY DOMINIC, Judge mrcs