Kerala High Court
P.Suresh vs Chief Controller Of Explosives on 1 December, 2015
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938
WP(C).No. 22172 of 2016 (V)
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PETITIONER:
P.SURESH, NATIONAL STORE, CHOORAL,
MATHIL P.O., PAYYANNUR, KANNUR.
BY ADVS.SRI.KALEESWARAM RAJ
KUM.A.ARUNA
RESPONDENTS:
1. CHIEF CONTROLLER OF EXPLOSIVES,
A BLOCK CGO COMPLEX, FIFTH FLOOR SEMINARY HILLS,
NAGPUR, MAHARASTRA - 440 006.
2. DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,
C2, 3RD FLOOR, CGO COMPLEX,
KAKKANAD, ERNAKULAM,KERALA - 682 030.
3. DISTRICT MAGISTRATE, CIVIL STATION,
KANNUR DISTRICT - 670 002.
4. ADDITIONAL DISTRICT MAGISTRATE,
CIVIL STATION, KANNUR DISTRICT - 670 002.
5. SUB INSPECTOR OF POLICE,
KANNAPURAM POLICE STATION - 670 301.
6. JOINT CHIEF CONTROLLER OF EXPLOSIVES,
A AND D - WING, BLOCK 1-8, IIND FLOOR,
SHASTRI BHAVAN, 26 HADDOUS ROAD,
NUNGAMBAKKAM CHENNAI, TAMIL NADU - 600 006.
R1, R2 & R6 BY ASG SRI.N.NAGARESH
R3 TO R5 BY GOVT. PLEADER SRI.GIKKU JACOB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN WP(C).No. 22172 of 2016 (V)
PETITIONER'S EXHIBITS:
EXT. P1 TRUE COPY OF THE LICENCE UNDER FORM LE-5 OF EXPLOSIVES
RULES, 2008 BEARING LICENCE NO.260 ISSUED IN FAVOUR OF THE 4TH
RESPONDENT.
EXT. P2 TRUE COPY OF THE RENEWED LICENCE DATED 1.12.2015.
EXT. P3 TRUE COPY OF THE LETTER DATED 15.4.2016.
EXT. P4 TRUE COPY OF THE REPRESENTATION DATED 16.4.2016
SUBMITTED BY THE PETITIONER.
EXT. P5 TRUE COPY OF THE COMMUNICATION DATED 14.6.2016.
EXT. P6 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER.
EXT. P7 TRUE COPY OF THE INTERIM ORDER DATED 30.3.2010 IN WPC NO.
11075/2010.
EXT. P8 TRUE COPY OF THE JUDGMENT DATED 18.5.2010 IN WPC NO.
11075/2010.
EXT. P9 TRUE COPY OF THE ORDER DATED 22.4.2016 CRIME NO.364/2016.
EXT. P10 TRUE COPY OF THE ORDER NO.C(1) 1505 DATED 01.3.2010 ISSUED
BY THE DEPUTY CONTROLLER OF EXPLOSIVES FOR THE 2ND RESPONDENT.
EXT. P11 TRUE COPY OF THE JUDGMENT DATED 26.6.2015 IN CC NO.
401/2011 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT -II, KANNUR.
EXT. P12 TRUE COPY OF THE ORDER DATED 28.10.2013 IN KVATA APPEAL
NO. 2219/2012.
EXT. P13 TRUE COPY OF THE TAX RECEIPT ISSUED BY KANNAPURAM
GRAMA PANCHAYAT.
EXT. P14 TRUE COPY OF THE INTERIM ORDER DATED 17.5.2016 IN WPC NO.
17239/2016.
EXT. P15 TRUE COPY OF THE INTERIM ORDER DATED 16.6.2016 IN WPC NO.
17299/2016.
RESPONDENT'S EXHIBITS: NIL.
/TRUE COPY/
P.S. TO JUDGE
P.B.Suresh Kumar, J.
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W.P.(C)No.22172 of 2016 V
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Dated this the 25th day of July, 2016
JUDGMENT
The petitioner is a dealer of fireworks in Kannur District. He is holding a licence under the Explosives Rules, 2008 ('the Rules' for short) for dealing with fireworks. On 12.04.2016, the fifth respondent seized the fireworks kept by the petitioner in his premises alleging that he possessed fireworks in excess of the quantity permitted as per the terms of the licence granted to him. According to the petitioner, had the fireworks seized from his possession been weighed in accordance with the provisions contained in Rule 16 of the Rules, the quantity would have been well within the limits permissible under the licence. It is asserted by the petitioner that he possessed only the WPC 22172/16 2 licensed quantity of fireworks and the seizure of the same from his possession is therefore illegal and unauthorised. The petitioner, therefore, seeks, among others, directions to the respondents to return the fireworks seized from his possession on 12.04.2016.
2. A statement has been filed by the fifth respondent in this matter. It is stated by the fifth respondent in the statement that the petitioner is holding licence to possess only 40 kg. of manufactured fireworks and 400 kg. of Chinese fireworks. According to the fifth respondent, the petitioner was found possessing 840 kg. of fireworks and it is on account of the said reason that the same have been seized from the possession of the petitioner.
3. In the light of the specific stand taken by the petitioner in the writ petition that he possessed only the WPC 22172/16 3 permissible quantity of fireworks, as per interim order of this Court dated 13.06.2016, the fifth respondent was directed to weigh the explosives seized from the possession of the petitioner in accordance with Rule 16 of the Rules and file a report before this Court. Pursuant to the said interim order, a report has been filed by the fifth respondent stating that the fireworks seized from the possession of the petitioner have been weighed as provided for under Rule 16 of the Rules, as directed by this Court, and it was found that the total quantity possessed by the petitioner at the time of seizure was 696.700 kg.
4. The learned counsel for the petitioner asserts that the report submitted in this connection by the fifth respondent is incorrect and had the fireworks seized from the possession of the petitioner been weighed strictly in WPC 22172/16 4 accordance with the requirements of Rule 16 of the Rules, the quantity would have been well within the permissible limits.
5. It is seen that a crime has been registered in connection with the seizure of the fireworks from the possession of the petitioner and a final report has also been filed in the said crime before the Judicial First Class Magistrate Court, Kannur by the fifth respondent alleging offences punishable under the Explosives Act. It is also seen that at the instance of the fifth respondent, orders have been issued by the said court to defuse the explosives seized from the possession of the petitioner.
6. In the light of the stand taken by the fifth respondent in the statement as also in the report filed pursuant to the interim order, the question is whether the WPC 22172/16 5 petitioner has possessed fireworks in excess of the licensed quantity. The said question being a pure question of fact, an adjudication of the said question cannot be made in a proceedings under Article 226 of the Constitution. In the circumstances, the remedy, if any, of the petitioner for redressal of his grievances is to approach the jurisdictional Magistrate for appropriate relief.
In the result, the writ petition is disposed of without prejudice to the right of the petitioner to move the jurisdictional Magistrate for release of the seized articles. Needless to say that if the petitioner convinces the Magistrate that he possessed only the permissible quantity in accordance with the provisions contained in the Rules, the seized articles shall be released to the petitioner. If the petitioner prefers an application before the jurisdictional WPC 22172/16 6 Magistrate for release of the seized articles within 10 days from today, the fifth respondent shall keep the fireworks seized from the possession of the petitioner intact, if the same has not already been defused, until a decision in the matter is taken by the jurisdictional Magistrate.
P.B.Suresh Kumar, Judge tkv