Kerala High Court
Shijukumar vs State Of Kerala on 5 February, 2016
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY,THE 5TH DAY OF FEBRUARY 2016/16TH MAGHA, 1937
Crl.MC.No. 533 of 2016
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CC 6/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NEDUMANGAD
CRIME NO. 1147/2015 OF PALODE POLICE STATION, THIRUVANANTHAPURAM
.........
PETITIONER(S)/ACCUSED 1 AND 2:
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1. SHIJUKUMAR, AGED 37 YEARS,
S/O. BABU G., SREE SAVIDAM, PACHAMALA,
HAVATTOM, KURUPUZHA, NEDUMANGAD.
2. CHANDRIKA,
KOUSTHUBHAM, SHIJU BHAVAN, PACHAMALA,
ELAVATTOM P.O., NEDUMANGAD.
BY ADVS.SRI.A.RAJASIMHAN
SRI.K.NIRMALAN
RESPONDENT(S)/STATE :
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STATE OF KERALA,
THROUGH THE SUB INSPECTOR OF POLICE, PALODE,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY PUBLIC PROSECUTOR SMT.MAYA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
msv/
Crl.MC.No. 533 of 2016
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE A1 : CERTIFIED COPY OF THE FIR IN CRIME NO.1147 OF 2015 OF PALODE
POLICE STATION.
ANNEXURE A2 : CERTIFIED COPY OF THE FINAL REPORT IN CC NO.6/2016 ON THE
FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT FOR THE
TRIAL OF FOREST OFFENCES, NEDUMANGAD.
ANNEXURE A3 : COPY OF THE LICENSE DTD.10.11.2010 ISSUED TO THE
2ND PETITIONER.
ANNEXURE A4 : COPY OF THE APPLICATION FOR RENEWAL OF LICENSE
DTD.6.2.2014.
ANNEXURE A5 : COPY OF THE FEE RECEIPT DTD.6.2.2014.
ANNEXURE A6 : COPY OF THE RENEWAL ORDER DTD.4.1.2016.
ANNEXURE A7 : COPY OF THE REPORT OF THE TAHSILDAR DTD.3.10.2015.
ANNEXURE A8 : COPY OF THE NOTICE DTD.21.12.2015.
ANNEXURE A9 : COPY OF THE FORM NO.1(A) OF KVAT DTD.28.10.2015.
RESPONDENT(S)' ANNEXURES:
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
B. KEMAL PASHA, J.
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CRL.M.C. No. 533 of 2016
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Dated this the 5th day of February, 2016
O R D E R
Petitioners are the accused in C.C.No.6/2016 of the Judicial First Class Magistrate's Court for the Trial of forest offences, Nedumangad, which has arisen from Crime No.1147/2015 of the Palode Police Station for the offences punishable under Section 286 read with Section 34 IPC and Section 9B1(a) and (b) of the Explosives Act.
2. The allegation against the petitioners is that the first petitioner, who has no licence to possess explosives or make fireworks, and the 2nd petitioner whose licence for possessing explosives and manufacturing fireworks expired, had kept explosives and fireworks, and they were also engaged in manufacturing fireworks on 4.11.2015 at their CRL.M.C.No. 533 of 2016 -: 2 :- premises.
3. Admittedly, the first petitioner is the son of the 2nd petitioner. The 2nd petitioner was having a licence for possessing and manufacturing explosives for the period up to 31.03.2014. She had filed an application for renewal on 06.02.2014. The same is evident from Annexures A3 and A4. It was while the renewal application was pending, the search and seizure were conducted. According to the petitioners, the said acts of the Sub Inspector of Police in conducting such a search and seizure at the premises of the first petitioner were malafide, made with intend to aid the other fireworks manufacturers during Deepavali season.
4. As per Rule 112(5) of the Explosive Rules, 2008, if the application for renewal reaches the renewing or licensing authority on or before the date of expiry, the licence shall be deemed to be in force until such date as the licensing authority renews the licence or until an intimation that the renewal of the licence is refused has been CRL.M.C.No. 533 of 2016 -: 3 :- communicated to the applicant.
5. Here in this particular case, that renewal application was pending and the licensing authority was keeping the application and had not disposed of the application, even on the date of seizure and search. It cannot be said that the Sub Inspector of Police, who conducted the so-called search and seizure, was not aware of the pendency of the renewal application. This is a case wherein the investigating officer was successful in getting the first petitioner remanded to custody.
6. The petitioners have produced the entire documents which show that the investigating officer was aware that the renewal application was pending. After the registration of the crime, it seems that the investigating officer has addressed the licensing authority not to renew the licence of the 2nd petitioner on the ground that the present crime has been registered.
7. All those acts of the investigating officer are CRL.M.C.No. 533 of 2016 -: 4 :- malafide. The whole malafide exercise is writ large from the procedure adopted by the investigating officer. At any stretch of imagination, any of the offences alleged against the petitioners cannot be attracted against them. Even though it is alleged that the first petitioner has no licence, the fact that the first petitioner is the son of the second petitioner, is not in dispute. Over and above it, the learned counsel for the petitioners has pointed out that the husband of the second petitioner, who is the father of the first petitioner, was also having a licence during the period in question and as a family, they were engaged in manufacturing fireworks. Evidently, it paves way to think that the submissions made by the learned counsel for the petitioners are correct. This Court is not making any further comments on the acts of the investigating officer at present.
8. Annexures A1 and A2 as well as all the proceedings against the petitioners in C.C. No.6/2016 of the Judicial First Class Magistrate's Court for the trial of Forest CRL.M.C.No. 533 of 2016 -: 5 :- Offences, Nedumangad are liable to be quashed.
In the result, this Crl.M.C. is allowed and Annexures A1 and A2 as well as all the proceedings against the petitioners in C.C. No.6/2016 of the Judicial First Class Magistrate's Court for the trial of Forest Offences, Nedumangad, which has arisen from Crime No.1147/2015 of Palode Police Station, are quashed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
[True copy] P.S. to Judge