Allowed

Chase Security Services, Thr. Its Proprietor, Ravindra Prabhakar Sawant and Anr., v. State of Goa, Thr. the Chief Secretary, Govt. of Goa and 2 Ors.

Bombay HC11 Mar 2020WP/226/2020

Case brief

AI extract

What is this about?

In a writ petition, a security agency proprietor challenged the rejection of their license under the Private Security Agencies (Regulation) Act, 2005, based on a prior conviction. The High Court held that an offence 'which may extend to two years' does not satisfy the statutory requirement of 'not less than two years,' thereby quashing the impugned order.

What did the court decide?

Impugned orders quashed; Petitioners directed to be granted the license for a private security agency within four weeks.

Chase Security Services, Thr. Its Proprietor, Ravindra… — Service and Employment | Bombay HC (2020)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 226 OF 2020

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1M/s Chase Security Services,
a proprietory concern,
having office at Shop No.G-2,
Ground Floor, Pereira Arcade,
Raia, Salcete, Goa,
through its proprietor
Shri. Ravindra Prabhakar Sawant,
son of Shri. Prabhakar Gajanan Sawant,
aged about 44 years,
business, Indian National, resident of
H. No.259/B, Kulsabhatt, Naqualim,
Camurlim, Salcete, Goa.

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2Shri Ravindra Prabhakar Sawant,
son of Shri. Prabhakar Gajanan Sawant,
aged about 44 years, business,
Indian National, resident of
H. No.259/B, Kulsabhatt, Naqualim,
Camurlim, Salcete, Goa.…. Petitioners.
Versus

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1 State of Goa, Through the Chief Secretary, Government of Goa, Goa Secretariat, Alto Porvorim, Bardez, Goa-403521.

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2 Chief Secretary, Government of Goa, Goa Secretariat, Alto Porvorim, Bardez, Goa-403521.

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3The Controlling Authority,
Additional Secretary (Home),
Government of Goa, Goa Secretariat,
Alto Porvorim, Bardez, Goa-403521.…. Respondents.

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Mr. Surendra G. Desai, Senior Advocate with Mr. Shirin V.
Naik, Advocate for the Petitioners.

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Mr. Devidas J. Pangam, Advocate General with Ms. Maria S. J.
Correia, Additional Government Advocate for the Respondents.

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Coram : M. S. SONAK & SMT. M. S. JAWALKAR, JJ.

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 Date : 11th March, 2020.

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Oral Judgment: (Per M. S. Sonak, J.)

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Heard Mr. Surendra G. Desai, learned Senior Advocate
alongwith Shri Shirin V. Naik, learned Counsel for the Petitioners
and Mr. Devidas J. Pangam, learned Advocate General alongwith Ms.
Maria S.J. Correia, for the Respondents.

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2. Rule. Rule is made returnable forthwith at the request of
and at the consent of the learned Counsel for the parties.

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3.The Petitioners challenge the orders made by the

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Additional Secretary (Home) and the Chief Secretary, both Licencing
and Appellate Authority under the provisions of The Private Security
Agencies (Regulation) Act, 2005, (the said Act) declining the
Petitioners licence to operate a Private Security Agency, as
contemplated by the said Act.

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5.The rejection of the licence is on the sole ground that the
case of the Petitioners is covered under the provisions of Section 6(1)
(b) of the said Act.

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6. Section 6(1)(b) reads as follows:

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“6.Persons not eligible for licence.- (1) A person
shall not be considered for issue of a licence under
this Act, if he has been--

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(a).......................................................................
(b) convicted by a competent court for an
offense, the prescribed punishment for
which is imprisonment of not less than
two years; or

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(c).....................................................................

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(d).......................................................................

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7.The record indicates that the Petitioners were involved in

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criminal case bearing Crime No. 12/2012 under Sections 325, 504
r/w 34 of I.P.C, which case was compounded on 21.06.2012 and

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criminal case bearing Crime No. 95/2004 under Sections 341, 353 r/w with 34 of I.P.C and in respect of this case, the Petitioners were convicted by the Judicial Magistrate First Class at Margao vide Judgment and Order dated 28.04.2008. The Petitioners were sentenced to pay fine of 2000/- and in default to undergo simple ₹ imprisonment for a period of two weeks and two days respectively, as indicated in the operative portion of the Order.

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8.In the aforesaid undisputed circumstances, the question
which arises for determination is whether the Petitioners were indeed
convicted by a competent court for an offence, 'the prescribed
punishment for which is imprisonment of not less than two years.'

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9.Section 341 of the I.P.C. reads as follows:

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“341. Punishment for wrongful restraint. —
Whoever wrongfully restrains any person shall be
punished with simple imprisonment for a term
which may extend to one month, or with fine which
may extend to five hundred rupees, or with both.”

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10.From the aforesaid it is quite clear that the offence under
Section 341 of I.P.C. cannot be regarded to be an offence, the
prescribed punishment for which, is imprisonment of not less than
two years.

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11.Section 353 of the I.P.C. reads as follows:

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“353. Assault or criminal force to deter public
servant from discharge of his duty.—Whoever
assaults or uses criminal force to any person being a
public servant in the execution of his duty as such
public servant, or with intent to prevent or deter
that person from discharging his duty as such
public servant, or in consequence of anything done
or attempted to be done by such person in the
lawful discharge of his duty as such public servant,
shall be punished with imprisonment of either
description for a term which may extend to two
years, or with fine, or with both.”

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[Emphasis supplied]

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12.From the aforesaid it is clear that the offence under
Section 353 of the I.P.C. is one, for which, the legislature has
prescribed imprisonment of either description for a term which may
extend to two years, or with fine or with both.

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13.Further question which arises for determination is
whether the punishment for a term which may extend to two years
can be regarded as punishment of imprisonment 'of not less than two
years' because, this is a precise expression used under Section 6(1)(b)
of the said Act.

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14.The learned Advocate General, has very fairly brought to
our notice the decisions in Nijamuddin Mohammad Bashir Khan

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and another v/s. State of Maharashtra1and Rajeev Chaudhary v/s.
(N.C.T.) of Delhi2.

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15.In Rajeev Chaudhary (supra), the Hon'ble Apex Court in
the context of the provisions of Section 167 of CrPC and Section
386 of the I.P.C. had the occasion to consider the scope and import
of the expression 'imprisonment which may extend to ten years' as
occurring in Section 386 of the I.P.C. and the expression 'offence
punishable with imprisonment for a term of not less than ten years'
occurring in provision (a) of Section 167(2) of CrPC.

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16.The relevant discussion on the aforesaid aspect is to be
found in paragraphs 4, 5 and 6, which read as follows:

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“4. Section 167 is a provision which authorises the
Magistrate permitting detention of an accused in
custody and prescribing the maximum period for
which such detention could be ordered pending
investigation. We are concerned with the interpretation
of Proviso (a) of Section 167(2) which reads thus:-

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“167. Procedure when investigation cannot be
completed in twenty four hours. –

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(2)...

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Provided that –

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(a) the Magistrate may authorise the detention
of the accused person otherwise than in the

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1 2006(5) Mh.L.J. 690

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2 AIR 2001 SC 2369

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custody of the police, beyond the period of
fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused
person in custody under this paragraph for a total
period exceeding, –

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(i) ninety days, where the investigation relates to
an offence punishable with death, imprisonment
for life or imprisonment for a term of not less
than ten years.”

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(ii) . . . . . . . . .”

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5. Further, Section 386 of I.P.C. provides as under:

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“386. Extortion by putting a person in fear of death or
grievous hurt– Whoever commits extortion by putting
any person in fear of death or of grievous hurt to that
person or to any other, shall be punished with
imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.”

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[Emphasis added]

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6. From the relevant part of the aforesaid sections, it is
apparent that pending investigation relating to an
offence punishable with imprisonment for a term “not
less than 10 years”, the Magistrate is empowered to
authorise the detention of the accused in custody for not
more than 90 days. For rest of the offences, period
prescribed is 60 days. Hence in case, where offence is
punishable with imprisonment for 10 years or more,
accused could be detained up to a period of 90 days. In
this context, the expression “not less than” would mean
imprisonment should be 10 years or more and would
cover only those offences for which punishment could
be imprisonment for a clear period of 10 years or more.
Under Section 386 punishmentprovided is

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imprisonment of either description for a term which
may extend to 10 years and also fine. That means,
imprisonment can be for a clear period of 10 years or
less. Hence, it could not be said that minimum sentence
would be 10 years or more. Further, in context also if
we consider Clause (i) of Proviso (a) to Section 167(2) it
would be applicable in case where investigation relates to
an offence punishable (1) with death; (2) imprisonment
for life; and (3) imprisonment for a term of not less than
ten years. It would not cover the offence for which
punishment could be imprisonment for less than 10
years. Under Section 386 of the I.P.C. imprisonment
can vary from minimum to maximum of 10 years and it
cannot be said that imprisonment prescribed is not less
than 10 years.”

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[Emphasis supplied]

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17.The Hon'ble Apex Court has clearly held that the
expression 'not less than' would mean imprisonment should be ten
years or more and would cover only this offence for which
punishment would be imprisonment for a clear period of ten years or
more.

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18.Since, under Section 386 of I.P.C., punishment provided
was of imprisonment of either description for a term which may
extend to ten years and also liable to fine, the Hon'ble Apex Court
held that the imprisonment can be for a clear period of ten years or
less. Hence, it cannot be said that the sentence can be ten years or
more or that it cannot be a sentence of not less than ten years.

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19.Applying the same principle to the facts of the present
case it will have to be held that offence under Section 353 of the
I.P.C. cannot be regarded as an offence, the prescribed punishment
for which is imprisonment of 'not less than two years'. This is
because in terms of Section 353 of the I.P.C., imprisonment can even
be for a term which is less than two years or with fine or with both.
In fact, in the present case, no punishment of imprisonment was ever
imposed upon the Petitioners and the competent court was content
with only imposing punishment of fine upon the Petitioners.

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20.Accordingly, we are satisfied that the Petitioners case was
not covered under Section 6(1)(b) of the said Act and the Petitioners'
application for license would not have been rejected on theground
that the Petitioners' case was so covered.

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21.Since, the Petitioners' application for license was not
rejected on any other ground nor is it the case of the Respondents
that the Petitioners' application for license was rejectable on any
other grounds, we not only set aside the impugned Orders, but,
direct the concerned Respondent, i.e. the Respondent No. 3, to grant
the Petitioners the license as contemplated under the said Act within
a period of four weeks from today.

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22. Rule is made absolute in the aforesaid terms.

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23. There shall be no order as to costs.

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24.All concerned to act on the basis of the authenticated
copy of this Order.

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SMT. M. S. JAWALKAR, J. M. S. SONAK, J.

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msr.

Chase Security Services, Thr. Its Proprietor, Ravindra Prabhakar Sawant and Anr., v. State of Goa, Thr. the Chief Secretary, Govt. of Goa and 2 Ors.

Case brief

What is this about?

What did the court decide?

Chase Security Services, Thr. Its Proprietor, Ravindra Prabhakar Sawant and Anr., v. State of Goa, Thr. the Chief Secretary, Govt. of Goa and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Coram

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