Kerala High Court
Biju Vinod vs The State Of Kerala on 25 October, 2018
Author: K.Abraham Mathew
Bench: K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
THURSDAY, THE 25TH DAY OF OCTOBER 2018 / 3RD KARTHIKA,
1940
Crl.MC.No. 630 of 2017
CC 1186/2016 OF J.M.F.C.-III, PUNALUR
CRIME NO. 708/2016 OF PUNALUR POLICE STATION, KOLLAM
PETITIONER/S:
1 BIJU VINOD, AGED 46 YEARS, S/O.
KARUNAKARAN,'BIJU BHAVANAM', THOLIKKODU
MURI,PUNALLUR VILLAGE, KOLLAM DISTRICT.
2 SUNIL, AGED 32 YEARS, S/O. MOHANAN
PILLAI,'SUMA BHAVAN' MATHRA MURI, PUNALUR
TAUKKARAVALOOR VILLAGE, KOLLAM DISTRICT.
3 ASHOKAN, AGED 52 YEARS, S/O. RAGHAVAN,'ASWATHY
BHAVANAM' PLACHERI MURIYIL,PUNALLUR TALUK,
VALAKKODE VILLAGE, KOLLAM DISTRICT.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.C.JAYAKIRAN
SRI.M.REVIKRISHNAN
RESPONDENT/S:
1 THE STATE OF KERALA
RESPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT
OF KERALA, ERNAKULAM
2 THE SUB INSPECTOR OF POLICE
PUNALLUR POLICE STATION,KOLLAM DISTIRCT
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3 THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES
OFFICE OF THE DEPUTY CHIEF CONTROLLER OF
EXPLOSIVES,KENDRIYA BHAVAN, KAKKANAD,ERNAKULAM
PIN-682037
BY ADVS.
SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SRI.N.NAGARESH ASSISTANT SOLICITOR GENERAL
OTHER PRESENT:
SRI.B. JAYASURYA SR GP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
25.10.2018, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
ORDER
Petition filed under Section 482 Cr.P.C.
2. Petitioners are the accused in CC No. 1186 of 2016 on the file of the Judicial First Class Magistrate Court-III, Punalur. They are alleged to have committed the offence under Section 9B(2) of the Explosives Act. The allegation is that on 12.04.2016, they were found to be in possession of a certain quantity of Potassium Nitrate and Aluminum Powder. The proceedings are sought to be quashed on the ground that these materials are not explosives.
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3. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
4. Section 9B(2) of the Explosives Act provides for punishment for contravention of notification issued under Section 6 of the Explosives Act. So, unless Section 6 of the Explosives Act is attracted, the offence under Section 9B(2) of the Explosives Act is not attracted. Section 6 of the Explosives Act provides that the Central Government may issue notification prohibiting manufacture, possession or importation of any explosives.
5. Learned counsel submits that the Aluminum powder and Potassium Nitrate, which were seized from the petitioners, are not explosives. He relies on Annexure I communication sent by the Deputy Chief Controller of Explosives, Ernakulam and Annexure J communication sent by the Joint Controller of Explosives, Chennai in support Crl.MC.No. 630 of 2017 ..4..
of his arguments. These documents prove that the Potassium Nitrate and Aluminum powder are not explosives. They are only ingredients used for manufacture of explosives. It also may be noted that the final report does not even mention a notification issued by the Government under Section 6 of the Act. The proceedings against the petitioners are liable to be quashed.
In the result, this Crl.M.C. is allowed. The proceedings in CC No. 1186 of 2016 on the file of the Judicial First Class Magistrate Court-III, Punalur are quashed. The learned magistrate may pass appropriate orders for the disposal of the material objects, if any, produced in the case.
Sd/-
K.ABRAHAM MATHEW JUDGE Bka/26.10.2018 Crl.MC.No. 630 of 2017 ..5..
APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A: TRUE COPY OF THE F.I.R. IN CRIME NO.708/2016 OF PUNALLUR POLICE STATION, KOLLAM DISTRICT.
ANNEXURE B: TRUE COPYOF THE FINAL REPORT IN CRIME NO.708/2016 OF PUNALUR POLICE STATION,KOLLAM ANNEXURE C: TRUE COPYOF THE CERTIFICATE OF REGISTRATION OF THE ESTABLISHMENT OWNED BY THE 1ST PETITIONER HEREIN ANNEXURE D: TRUE COPY OF THE LICENSE ISSUED IN THE NAME OF THE 1ST PETITIONER BY THE COMPETENT AUTHORITY WHICH IS VALID UP TO 31/03/2020 AUTHORIZING HIM TO POSSESS AND CONDUCT SALE OF EXPLOSIVES ANNEXURE E" TRUE COPY OF THE LICENSE ISSUED BY THE COMPETENT AUTHORITY IN THE NAME OF THE 1ST PETITIONER HEREIN AUTHORIZING HIM TO DEAL WITH SAFETY FUSE, WHICH IS VALID UP TO 31.03.2021 ANNEXURE F: TRUE COPY OF THE LICENSE ISSUE DBY THE NAME OF THE 1ST PETITIONER AUTHORIZING HIM TO POSSESS AND CONDUCT SALE OF FIREWORKS UP TO 1500 KILOGRAMS, WHICH IS VALID UP TO 31.03.2022 ANNEXURE G: TRUE COPY OF THE LICENSE ISSUED IN THE NAME OF THE 1ST PETITIONER AUTHORIZING HIM TO POSSESS AND CONDUCT SALE OF FIREWORKS UP TO 1500 KILOGRAMS, WHICH IS VALID UP TO 31.03.2022 ANNEXURE H: TRUE COPY OF THE LICENSE GRANTE DIN FORM LE-7 OF THE EXPLOSIVE RULES, 2008 AS REGARDS VEHICLE BEARING NUMBER KL- 25-C-6422 A MAHINDRA VAN FOR THE CARRIAGE OF EXPLOSIVES VALID UP TO 31.03.2021 Crl.MC.No. 630 of 2017 ..6..
ANNEXURE I: TRUE COPY OF THE CERTIFICATE ISSUED FROM THE OFFICE OF THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, ERNAKULAM DATED 18.01.1996 SPECIFICALLY RECITING THAT POTASSIUM NITRATE OR ALUMINIUM POWDER CANNOT BY THEMSELVES QUALIFY AS EXPLOSIVES IN ORDER TO ATTRACT THE PROVISIONS UNDER THE ENACTMENT OR THE RULES FRAMED THEREUNDER ANNEXURE J: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER HEREIN TO THE JOINT CHIEF CONTROLLER OF EXPLOSIVES, CHENNAI DATED 29.12.2016 WHICH CONTAINS THE AFFIRMATION BY THE AUTHORITY BY HIS HAND AND SEAL THAT THE ARTICLES SEIZED DOES NOT COME WITHIN THE PURVIEW OF EXPLOSIVE ACT OR RULES ANNEXURE K: TRUE COPY OF THE LETTER OF CLARIFICATION ISSUE DBY THE 3RD RESPONDENT HEREIN SPECIFICALLY CLARIFYING THAT THE RAW MATERIALS SEIZED INCLUDING THOSE GIVING RISE TO THE INSTANT PROSECUTION DOES NOT REQUIRE LICENSE UNDER THE ACTS OR RULES FOR THE POSSESSION OF THE SAME DATED 14.10.2014