IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 21741 of 2010(P) -------------------------- PETITIONER(S): ----------------------- THOMAS.N.A. M/S.NOBEL EXPLOSIVES KADAYIRIPPU.P.O., KOLENCHERRY, ERNAKULAM DISTRICT. BY ADV. SRI.GEORGE THOMAS MEVADA, SENIOR ADVOCATE SRI.JOBI JOSE KONDODY RESPONDENT(S): ------------------------ 1. THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, KAKKANAD, ERNAKULAM PIN-682030. 2. JOINT CHIEF CONTROLLER OF EXPLOSIVES, CHENNAI-600001. 3. THE CHIEF CONTROLLER OF EXPLOSIVES, PETROLEUM AND EXPLOSIVES SAFETY ORGANISATION, A BLOCK, 5TH FLOOR, CGO COMPLEX, SEMINARY HILLS, NAGPUR-440006, MAHARASHTRA. 4. UNION OF INDIA, MINISTRY OF COMMERCE & INDUSTRY, DEPARTMENT OF INDUSTRIAL POLICY & PROMOTION, NEW DELHI REP BY ITS JOINT SECRETARY (EXPLOSIVES). PIN-110001. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21741 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the indent dated 12.4.2006. Ext.P2 :- Copy of the indent dated 13.4.2006. Ext.P3 :- Copy of the indent dated 19.4.2006. Ext.P4 :- Copy of the indent dated 20.4.2006. Ext.P5 :- Copy of the F.I.R. in Crime 201/06. Ext.P6 :- Copy of the wound certificate issued by the Jubilee Mission Hospital dated 20.4.2006. Ext.P7 :- Copy of the certificate issued by the Motor Vehicle Inspector in respect of KL-7X 8316. Ext.P8 :- Copy of the communication dated 26.4.2006. Ext.P9 :- Copy of the notice of suspension of licence issued by thef 3rd dated 27.4.2006. Ext.P10 :- Copy of the explanation dated 16.5.2006. Ext.P11 :- Copy of the representation dated 6.8.2008. Ext.P12 :- Copy of the order dated 7.1.09. Ext.P13 :- Copy of the appeal filed by the petitioner. Ext.P14 :- Copy of the proceedings dated 18.6.2010 issued by the 4th respondent. Respondent's Exhibits :- Ext.R-3(a) :- Copy of the relevant page of Show Cause Notice issued by the 3rd respondent. WP(C).No. 21741 of 2010 Ext.R-3(b) :- Copy of the petitioner's statement furnished to 3rd respondent. Ext.R-3(c) :- Copy of the statement of Shri.Jaison furnished to 3rd respondent during hearing denying raising of indent for supply of Explosives. Ext.R-3(d) :- Copy of the statement of Shri.Hafees through his Advocate Shri.T.Mahdu furnished to 3rd respondent denying raising of indent for supply of Explosives. Ext.R-3(e) :- Copy of the letter issued by Shri.Tony denying raising of any indent for supply of explosives. //True Copy// P.A. to Judge ANTONY DOMINIC, J. ----------------------------- W.P.(C) No.21741 of 2010 ----------------------------------- Dated this the 7th day of October 2010 J U D G M E N T Petitioner challenges Exts.P12 and P14 orders. Petitioner is the proprietor of M/s.Nobel Explosives, Kadayirippu at Kolencherry in Ernakulam District. He was holding licenses to possess and sell class II explosives and detonators issued in Form No.21 and 22 of the Explosives Rules, 1986. 2. In so far as it is relevant for the purpose of this case, petitioner states that on the basis of Exts.P1 to P4 indents placed by the persons mentioned therein, in his licensed van bearing Reg.No.KL-7 8316, a quantity of 1275 Kgs. of Nitrate mixture, a Class-II explosive, was transported on 20.4.2006 and that yet another consignment consisting of 4500 electric detonators was transported in another licensed W.P.(C) No.21741 of 2010 -: 2 :- vehicle of the petitioner. Both the consignments were, to be delivered to the consignees at Thrissur. 3. It is stated that enroute, in an accident that occurred at Ollur, van bearing Reg.No.KL-7 8316 suffered serious damages and the driver was also seriously injured. According to the petitioner, the van transporting the detonators, which was following the van bearing Reg.No.KL-7 8316 stopped and the driver transferred the detonators into the damaged vehicle and took the injured driver to the hospital. Petitioner submits that on being intimated of the accident, officers from the Ollur Police Station came up and removed the damaged vehicle along with explosives to the police station. Thereafter Crime No.198/2006, arraying the petitioner and the persons who placed the indents, was registered alleging offences under the provisions of the Explosives Act and the Indian Penal Code. Petitioner submits that the case is pending trial before the Judicial First Class Magistrate Court, Thrissur. 4. It would appear that during the course of the W.P.(C) No.21741 of 2010 -: 3 :- investigation, the persons for whom, the petitioner claims to have transported the explosives denied of having placed to the indents. Thereupon by Ext.P8 communication was issued by the 2nd respondent suspending the license of the vehicle which met with the accident and by Ext.P9, the 3rd respondent suspended the licenses in Form No.21 and 22. Although the suspension of the vehicle and the license in Form No.22 were revoked and restored, the suspension in so far as the license in Form No.21 is concerned, was not revoked. Thereafter, considering the objections filed by the petitioner against the suspension, the 3rd respondent passed Ext.P12 ordering that the suspension will continue till the verdict of the Criminal Court is received for perusal. Aggrieved by Ext.P12 order, petitioner filed Ext.P13 appeal before the 4th respondent. The 4th respondent passed Ext.P14 order, dismissing the appeal. It is in these circumstances, the writ petition is filed. 5. Main contention raised by the learned senior counsel for the petitioner is that, the order suspending the license is issued under Section 6E of the Explosives Act, 1884 W.P.(C) No.21741 of 2010 -: 4 :- and according to counsel suspension can only be for a specified period and the suspension in question is ordered for an indefinite period. It is also his contention that if the petitioner is able to prove that the transportation of the explosives was on the strength of Exts.P1 to P4 indents placed by the persons mentioned in those documents and if so, the irregularity is only that of excess transportation of 275 kgs. of Nitrate mixture. It is stated that for such a minor irregularity, a major and disproportionate punishment of indefinite suspension has been imposed on the petitioner. Yet another contention raised is that there is not even an allegation that the petitioner was involved in any offence in the past, although he has been holding these licenses from 1999. 6. I have considered the submissions made. 7. Admittedly, 1275 kgs. of Nitrate Mixture and 4500 detonators were transported on the strength of Exts.P1 to P4 indents in vehicles belonging to the petitioner. Irrespective of the correctness or otherwise of the stand taken, it is also fact that the persons who placed the indents and for whom W.P.(C) No.21741 of 2010 -: 5 :- transportation was allegedly made, have dishonoured of having placed the indents. In such circumstance, prima facie, provisions contained in the Explosives Act and Rules have been violated. In such a situation, if the authorities have initiated action against the licensee, this Court will not be justified or exercising its powers under Article 226 of the Constitution of India and interfere with such proceedings. 8. However, from the proceedings available in this case it is noticed that, while the 3rd respondent rendered Ext.P12 order on the aforesaid grounds, in Ext.P13 appeal filed by the petitioner, the 4th respondent has concluded thus:- “1. The batch number and date of manufacture of 46 cases of Class 2 explosives as well as Detonators were effaced from the cases. This constitutes violation of rule 9 of Explosives Rules, 1983. 2. The Form No.16 found in the Road Van indicated only 5 cases of Class 2 explosives having marked batch number were issued to Shri Toni, holder of Licence No.KL- 679/E, Shri Jaison, holder of Licence No.KL-738/E & Shri Hafiz, holder of Licence No.KL-1192/E. Rest of the explosives was issued by you without any bill and without any consignee. This constitutes violation of rule 7 of Explosives Rules 1983. The 3 persons to whom 5 cases of W.P.(C) No.21741 of 2010 -: 6 :- explosives were delivered also denied police of having indented the explosives in Form 37 of Explosives Rules 1983. 3. No records of transition of the explosives issued from your licensed magazines and transported in the explosives van was available during inspection of the magazine. This constitutes violation of rule 119 of Explosives Rules 1983. 4. Explosives of Class 6 Div.3 (Detonators) were being transported in the same road van with class 2 explosives. This constitutes violation of rule 33 of Explosives Rules 1983. 5. The quantity of explosives transported in road van was in excess of licensed capacity of the van. This constitutes violation of rule 36 of Explosives Rules 1983.” These reasons were neither put forward in the show cause notice nor found in Ext.P12 order. In such circumstance, petitioner did not have an opportunity to answer these grounds which are now held against him by the appellate authority. In that view, Ext.P14 order is one rendered in violation of the principles of natural principles and is vitiated for that reason. 9. Therefore I set aside Ext.P14 order and direct that 4th respondent shall reconsider Ext.P13 appeal filed by the W.P.(C) No.21741 of 2010 -: 7 :- petitioner with notice and opportunity of hearing to the petitioner. It is made clear that answering the grounds stated in Ext.P14, it will be open to the petitioner to file his objections and if such objections are filed, the appellate authority will consider that also, while passing orders as directed above. This shall be done as expeditiously as possible at any rate, within three months from the date of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE. Jvt