Madras High Court
S.Arumugam vs State Through on 28 April, 2022
Crl.O.P.(MD)No.15277 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.15277 of 2019
and
Crl.MP(MD)Nos.9126 and 9127 of 2019
S.Arumugam : Petitioner/Sole Accused
Vs.
State through
The Inspector of Police,
Town Police Station,
Tirunelveli District.
(Crime No.122 of 2019) : Respondent/Complainant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records in CC No.1444
of 2019 on the file of the Judicial Magistrate No.1,
Tirunelveli and quash the same.
For Petitioner : Mr.K.Prabhu
For Respondent : Mr.B.Nambi Selvan
Additional Public Prosecutor
1/10
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.15277 of 2019
O R D E R
This criminal original petition has been filed by the
petitioner seeking quashment of the CC No.1444 of 2019 on
the file of Judicial Magistrate No.IV, Tirunelveli.
2.The case of the prosecution in brief:-
The de-facto complainant is the Special Sub Inspector
of Police, attached to the respondent police station. He
along with the team of police officials inspected the Raj
Agency located in shop No.319, Ratha Veedi, Tenkasi, on
12/04/2019 at about 2.00 pm, at that time, this petitioner
was found in the shop. On enquiry, this petitioner informed
that the license-holder is his brother by name Palaniappan
and fire crackers worth about Rs.2,00,000/- are available
in the shop. Finding that the no proper licence by the
petitioner or the above said Palaniappan were obtained all
the crackers were seized. Based upon which, the case in
Crime No.122 of 2019 for the offence under section 9(B)(1)
(b) of the Explosives Act, 1984 was registered and the
investigation has also been ordered and after collecting
the materials, finding that no proper licence has been
obtained, the final report has been filed and it has been
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Crl.O.P.(MD)No.15277 of 2019
taken cognizance in CC No.1444 of 2019 by the Judicial
Magistrate No.4, Tirunelveli.
3.Seeking quashment of the criminal proceedings, this
petition has been filed on the sole ground that on the date
of the inspection, the petitioner's brother by name
Palanisamy was the licence holder and applied renewal of
the licence and was also pending before the appropriate
authorities.
4.Heard both sides.
5.It is not in dispute that the licence is required
under section 5 of the Explosives Act, 1884 for storying,
selling and possessing fire crackers and if no permission
has been obtained, it is punishable under section 19(B)(1)
(b) of the Act.
6.Now we will straightway go to the document that has
been filed by the petitioner. The renewal licence, dated
03/11/2015 was standing in the name of Palaniappan, who is
the brother of the petitioner. It was periodically renewed,
by order, dated 03/11/2015. Renewal Licence in
COP./TIN/78/2011 was extended upto 31/03/2016. That renewal
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Crl.O.P.(MD)No.15277 of 2019
was effected after going through the proper procedure and
by producing relevant documents and 'No Objection
certificate' from the Fire Department and as per the
licence, he was permitted to store 25 kgs of explosives.
Later in 2017, he filed WP(MD)No.19158 of 2017 seeking a
direction to the Commissioner of Police, Tirunelveli to
renew the fire crackers licence and that was ordered by
making the authorities to consider the representation. He
was directed to re-submit his licence renewal application
to the first respondent and on such submission, the first
respondent was directed to consider the same and pass
orders on merits. Till then, namely 20/01/2018, the
temporary licence was ordered to be extended. But later,
it appears that show cause notice was issued on 11/08/2018
and subsequently, a show cause notice was issued and before
that, by order, dated 09/04/2019, the licence was ordered
to be cancelled, after enquiry in nd considering the
representation in pursuance of the order passed by this
court in WP(MD)NO.19158 of 2019. Later he made a
representation, on 28/04/2018 seeking renewal of licence.
He has also submitted that he paid proper fee, on
28/02/2019. He made a request to renew the licence upto
31/03/2020. But what happened after that is not clear on
record. Even though 'No Objection Certificate' has been
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Crl.O.P.(MD)No.15277 of 2019
issued by the Fire Service Department, on 10/04/2019,
whether that was subsequently renewed or not is not clear
on record.
7.The learned counsel appearing for the petitioner
would submit that on the date of the alleged inspection,
the renewal of licence was pending with the concerned
authorities. Since the renewal licence is stated to be
pending before the concerned authorities, the offence
cannot be stated to have been made out. A similar question
was answered in the affirmative in the case of Sammantham
Vs. State rep. By the Inspector of Police, Tindivanam
Police Station, Villupuram District, on 01/10/2019.
8.When the matter was reserved for order, during the
course of perusal of the records, this court entertained
doubt with regard to the certificate issued as to whether
on the date of the alleged occurrence, the licence that was
granted to the brother of the petitioner was in existence
or expired. The petitioner can take advantage of the order
passed in Crl.OP No.26412 of 2019 only if the petitioner is
able to establish that on the date of the alleged
occurrence, even though the licence that was granted in
favour of his brother expired, but the renewal application
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Crl.O.P.(MD)No.15277 of 2019
was applied even before the expiry date and pending before
the concerned authority. Because as per the rules, renewal
of licence application must be submitted before the expiry
of the licence period. So this was an observation made by
this court in Crl.OP(MD)No.4215 of 2017, dated 12/06/2017,
wherein this court has observed that as per the Rule 112(5)
of the Explosives Rules, 2008, renewal application must be
submitted on or before the date of expiry of the licence.
If that was so, then the renewal deemed to be in force
until such date as the licensing authority renews the
licence or until the intimation is communicated with
reference to the renewal.
9.In the light of the above said facts, now we go to
the factual aspect. The date of occurrence is stated to be
on 12/04/2019. Perusal of the typed set of papers shows
that the fee for renewal of licence in COP/TIN/78/2011 for
the period from 01/04/2019 to 31/03/2011 was ordered on
22/02/2019 well within the date of the expiry of licence.
No Objection Certificate was also issued by the Fire
Service Department, on 09/06/2019. Originally, the licence
was issued on 24/10/2011 and that was periodically
extended. So perusal of the renewal dates shows that it was
renewed upto 31/03/2018. Then it was renewed from
01/04/2018 to 31/03/2019 and after that, there is a gap
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Crl.O.P.(MD)No.15277 of 2019
between 01/04/2019 to 20/10/2020. So the learned counsel
appearing for the petitioner would submit that for this
period only, the above said application was pending with
the concerned authorities. This is with reference to the
shop, which is owned by the petitioner and the occurrence
shop was owned by his brother.
10.In respect of his brother, the original licence was
obtained on 03/11/2015 upto 31/03/2019. From 01/04/2018,
the licence was not approved. But however, fee was paid
for the period from 01/04/2019 to 31/03/2020. The renewal
was applied on 28/02/2019 which is before the expiry date,
for the period from 01/04/2019 to 31/03/2020. So, No
Objection Certificate was also issued by the Fire Service
Department.
11.It is seen that on the date of the alleged
occurrence, the renewal application was pending and the fee
was also paid. So, automatically the judgments cited by the
learned counsel appearing for the petitioner shall stand
applicable. In the light of the above facts, this petition
is liable to be allowed.
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Crl.O.P.(MD)No.15277 of 2019
12.In the result, this criminal original petition is
allowed. The impugned proceedings in CC No.1444 of 2019
pending on the file of the Judicial Magistrate No.IV,
Tirunelveli is hereby quashed. Consequently, connected
Miscellaneous Petitions are closed.
28.04.2022
Internet:Yes/No
Index:Yes/No
er
Note: In view of the
present lock down owing
to COVID-19 pandemic, a
web copy of the order may
be utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.15277 of 2019
To,
1.The Judicial Magistrate No.IV,
Tirunelveli.
2.The Inspector of Police,
Town Police Station,
Tirunelveli District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.15277 of 2019
G.ILANGOVAN,J.,
Crl.O.P.(MD)No.15277 of 2019
28/04/2022
https://www.mhc.tn.gov.in/judis
