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2014 (6) TMI 231 - HC - CustomsRejection of application for fresh Customs House Agents License - Disqualification under Regulation 8 - whether the application of the petitioner No.1 for license under CHALR 2004 could have been rejected on the ground that the petitioner No.1 had cleared the examination under Regulation 9 of CHALR 1984 - Held that - The 2004 regulations expressly save things done before framing of the said 2004 Regulations. There is nothing in the 2004 Regulations wherefrom it may be deducted that a person who has cleared the Customs House Clearing Agent s examination under Regulation 9 of the 1984 Regulations would again be required to appear for an examination. It appears that the petitioner had a regular licence. However, this licence was in the name of the firm M/s Shipping Agency. It was the petitioner who was actually engaged in the work of clearance of goods through customs on behalf of the firm. It was the petitioner who appeared for the examination. The petitioner cannot be disqualified on the ground of not having cleared the examination under Regulation 8 of CHALR 2004. The licence of the petitioner has not been rejected only on the ground that the petitioner has not cleared the examination under Regulation 8 of CHALR 2004, but also on the ground that on verification of the antecedents of the petitioner it was found that a charge-sheet had been issued under Sections 419/468/471 of the Indian Penal Code which did not support an unblemished record - There can be no doubt that a person guilty of commission of an offence may be debarred from licence. However, it is one thing to be charged with an offence and a different thing to be held guilty of actual commission of that offence. Chances of false implication cannot altogether be ruled out, particularly in a case like the present one, where family disputes have cropped up. It would, in my view, be totally arbitrary and against all norms of fair play to deprive a citizen of his right to carry on business in the absence of any verdict of a Court of law holding him guilty of a criminal offence. The petitioner had carried on business as clearing house agent. A licence had been issued to him. It is a case of continuance of business and/or deprivation of the right to carry on business - a person who has been carrying on business ought not to be prevented from carrying the business on the basis of allegations not proved in Court of law - impugned notice is set asie and quashed - Decided in favour of appellant.
Issues Involved:
1. Rejection of the application for a fresh Customs House Agents (CHA) Licence. 2. Qualification under Regulation 8 of CHALR 2004. 3. Impact of pending criminal charges on the issuance of a CHA Licence. Detailed Analysis: 1. Rejection of the Application for a Fresh Customs House Agents (CHA) Licence The petitioner challenged the rejection of his application for a fresh CHA Licence communicated through Office Memorandum No.F.S45-47/2011 Estt. dated 7/10.10.2011. The application was rejected based on the petitioner's failure to meet qualifications under Regulation 8 of CHALR 2004 and the existence of a charge-sheet under Sections 419/468/471 IPC. 2. Qualification under Regulation 8 of CHALR 2004 The petitioner argued that he had already cleared the examination under Regulation 9 of CHALR 1984, which should suffice for the grant of a licence under CHALR 2004. The court noted that CHALR 2004 replaced CHALR 1984 but saved actions done under the previous regulations. It was held that a person who passed the examination under Regulation 9 of CHALR 1984 is not required to clear an examination under Regulation 8 of CHALR 2004 for a permanent licence. The court cited the Supreme Court judgment in Union of India & Anr. Vs. Sunil Kohli & Ors., which affirmed this view. 3. Impact of Pending Criminal Charges on the Issuance of a CHA Licence The petitioner faced criminal charges based on a complaint lodged by his brother. The court emphasized the presumption of innocence, stating that a person should not be deprived of the right to carry on business based solely on pending criminal charges. Citing the Supreme Court in Harendra Sarkar Vs. State of Assam, the court reiterated that presumption of innocence is a human right. It was held that while a person convicted of an offence may be debarred from obtaining a licence, merely being charged does not justify the denial of a licence. The court also referenced Kailash Gour & Ors vs State Of Assam, highlighting the possibility of false implications due to enmity. Conclusion: The writ petition was allowed, and the impugned notice was quashed. The Commissioner was directed to reconsider the petitioner's application for a fresh licence, taking into account the petitioner's clearance of the examination under CHALR 1984 and the unproven status of the criminal charges. The court noted that the licence could be subject to cancellation if the petitioner was later found guilty. Order: The Commissioner was instructed to consider the application afresh, ensuring that the petitioner's past examination clearance and the pending status of criminal charges were factored in. The court also allowed for the possibility of licence cancellation upon the petitioner's conviction. Photostat Copy: The court ordered that a certified copy of the judgment be provided to the parties upon compliance with requisite formalities.
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