Kerala High Court
Shinan vs State Of Kerala on 6 December, 2017
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 6TH DAY OF DECEMBER 2017/15TH AGRAHAYANA, 1939
Crl.MC.No. 8047 of 2017 ()
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C.C.1024/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT - IX, ERNAKULAM
PETITIONER/ACCUSED:
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SHINAN,
AGED 42 YEARS, S/O. VELAYUDHAN,
PANAKKAPADM HOUSE, PONNURUNNI,
VYTTILA P.O., KOCHI - 682 019.
BY ADVS.SRI.V.C.RAJESH
SRI.K.J.GLADIS
RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY SI OF POLICE,
PALARIVATTOM POLICE STATION
THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNALULAM, PIN - 682 031.
BY PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-12-2017,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
EL
Crl.MC.No. 8047 of 2017 ()
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APPENDIX
PETITIONER(S)' ANNEXURES
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ANNEXURE A CERTIFIED COPY OF THE FINAL REPORT IN C.C.NO.1024/16 BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE COURT 0 IX, ERNAKULAM
ANNEXURE B CERTIFIED COPY OF THE FIR AND FIS IN CRIME NO.447/11 OF
PALARIVATTOM POLICE STATION IN CHARGE SHEET IN C.C.1024/16
BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT - IX,
ERNAKULAM.
ANNEXURE C CERTIFIED COPY OF THE ORDER IN M.P.NO.1768/17 IN PASSED BY THE
JUDICIAL FIRST CLASS MAGISTRATE COURT-IX, ERNAKULAM.
RESPONDENT(S)' ANNEXURE
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NIL
TRUE COPY
P.S. TO JUDGE
EL
B. KEMAL PASHA, J.
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Crl.M.C. No.8047 of 2017
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Dated this the 6th day of December, 2017
O R D E R
~ ~ ~ ~ ~ ~ Petitioner is the accused in CC No.1024/2016 of the Judicial First Class Magistrate's Court-IX, Ernakulam, which has arisen from Annexure-A final report in Crime No.447/2011 of Palarivattom Police Station. The crime was registered for the offence under Section 3(2)(c) and (d) of the Essential Commodities Act, 1995 and Section 9B of the Explosives Act, 1884. The allegation against the petitioner is that he had misused domestic gas cylinder for commercial purpose, by making use of it by cooking food in the hotel being conducted by him. The Sub Inspector of Police, Palarivattom Police Station, on a search, seized the cylinder and consequently, the crime was registered.
2. By relying on the decision in Abdul Hameed v. Station House Officer, Cherpulassery Police Station Crl.M.C.8047/2017 : 2 : [2013 (2) KHC 386], the learned Magistrate found that the search and seizure were illegal, when it was conducted by a Sub Inspector of Police, who was not authorised to conduct a search and seizure as per the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. The learned Magistrate, after considering the matter under Section 239 Cr.P.C., discharged the petitioner for the offence under Sections 3 and 7 under the Essential Commodities Act. At the same time, the court below, through Annexure-C order, has decided to frame charges for the offence under Section 9B(1)(b) of the Explosives Act.
3. At any stretch of imagination, the matter cannot be brought within the scope of the offence under Section 9B of the Explosives Act. If as a matter of fact, the said gas cylinder was made use of for domestic purpose, it would not have invited an offence under Section 9B of the Explosives Act. In such case, when there was only a misuse of the said gas cylinder, when it was used for commercial purpose in a Crl.M.C.8047/2017 : 3 : hotel, it could not have invited an offence under the Explosives Act. Essentially, when the search and seizure have become illegal, the same cannot be made use of for implicating the petitioner in other offences also. Matters being so, all further proceedings in CC No.1024/2016 of the Judicial First Class Magistrate's Court-IX, Ernakulam, which has arisen from Annexure-A final report in Crime No.447/2011 of Palarivattom Police Station, are liable to be quashed.
In the result, this Crl.M.C. is allowed and all further proceedings against the petitioner in CC No.1024/2016 of the Judicial First Class Magistrate's Court-IX, Ernakulam, which has arisen from Annexure-A final report in Crime No.447/2011 of Palarivattom Police Station, are quashed.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/06/12 // True Copy // PS to Judge