Kerala High Court
Jose Prakash vs State Of Kerala on 12 June, 2014
Author: K. Ramakrishnan
Bench: K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936
Crl.MC.No. 2956 of 2014 ()
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AGAINST THE ORDER/JUDGMENT IN CC 621/2011 of J.M.F.C.,THIRUVALLA
CRIME NO. 189/2011 OF PERUMPETTY POLICE STATION, PATHANAMTITTA
PETITIONER/ACCUSED NO.4:
------------------------
JOSE PRAKASH, AGED 45 YEARS
S/O. GEORGE, VALIYAKUNNUMPURATHU HOUSE,
KODUMUDISSERIL MURIYIL, KOTTANGAL VILLAGE, VAIPUR P.O.
PATHANAMTHITTA DISTRICT-689 588.
BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)
RESPONDENTS/COMPLAINANT:
------------------------
1. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
2. SUB INSPECTOR OF POLICE,
PERUMPETTY POLICE STATION
PATHANAMTHITTA DISTRICT-689 686.
BY PUBLIC PROSECUTOR SMT.S. HYMA
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
23-09-2014 ALONG WITH CRMC. 3140/2014, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.MC.No. 2956 of 2014 ()
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APPENDIX
PETITIONER'S ANNEXURES:
-----------------------
ANNEXURE 1 : COPY OF THE FIR IN CRIME NO.189/2011 OF PERUMPETTY
POLICE STATION ALONG WITH THE COMPLAINT AND MAHAZAR.
ANNEXURE 2 : CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.189/2011
OF PERUMPETTY POLICE STATION NOW PENDING AS CC NO.621/2011 ON THE
FILE OF THE JFCM COURT, THIRUVALLA.
ANNEXURE 3 : COPY OF THE QUARRYING PERMIT DTD.25.5.2011 OF DISTRICT
GEOLOGIST, PATHANAMTHITTA.
ANNEXURE 4 : COPY OF THE EXPLOSIVE LICENSE DTD.25.4.2011 OF DEPUTY
CONTROLLER OF EXPLOSIVES.
ANNEXURE 5 : COPY OF THE AMENDED LICENSE ISSUED BY THE CONTROLLER OF
EXPLOSIVES, CHENNAI.
ANNEXURE 6 : COPY OF THE SHORT FIRES PERMIT ISSUED BY THE DEPARTMENT
OF EXPLOSIVES.
ANNEXURE 7 : COPY OF THE CONSENT NO.QCO/PTA/103/2011 OF KERALA STATE
POLLUTION CONTROL BOARD.
ANNEXURE 8 : COPY OF THE PROHIBITORY ORDER ISSUED BY THE VILLAGE
OFFICER, KOTTANGAL, DTD.20.9.2010.
ANNEXURE 9:TRUE COPY OF THE INFORMATION DATED 12.6.2014 PROVIDED BY
THE ADDITIONAL TAHASILDAR
RESPONDENTS' ANNEXURES:NIL
----------------------
/TRUE COPY/
P.S TO JUDGE
K. RAMAKRISHNAN, J.
.................................................
Crl.M.C.Nos.2956 & 3140 of 2014
..................................................
Dated this the 23rd day of September, 2014.
O R D E R
Crl.M.C.No.2956/2014 was filed by the 4th accused in
C.C.No.621/2011 on the file of the Judicial First Class
Magistrate Court, Thiruvalla, while Crl.M.C.No.3140/2014 was
filed by accused Nos. 1 to 3 in the same case, both for
quashing the proceedings as against them under Section 482
of the Code of Criminal Procedure (hereinafter referred to as '
the Code').
2. The common case of the petitioners in both these cases
was that the 1st accused is having a property in
R.Sy.No.175/11 of Kottangal village and the third accused is the
owner of the property in R.Sy.No.175/3 of Kottangal village and
2nd and 4th accused are conducting quarrying operation in the
properties belonging to accused 1 and 3 respectively
independently. The case of the prosecution was that they were
conducting quarrying operations in the properties in violation of
the prohibitory order issued by the Tahsildar, who is the
defacto complainant and thereby they have committed the
Crl.M.C.Nos.2956 & 3140 of 2014 2
offence punishable under Section 9(B)(1)(b) of the Explosives
Act. Accused 1 and 3, who are petitioners 1 and 3 in
Crl.M.C.No.3140/2014, are the owners of the properties in
R.Sy.Nos.175/11 and 175/3 of Kottangal village respectively.
The second petitioner in Crl.M.C.No.3140/2014, who is the
second accused, is conducting quarrying operation in the
property belonging to the first accused after obtaining necessary
licences and permits evidenced by Annexures-3 to 6 documents
produced by him in that case. The 4th accused in the same
case, who is the petitioner in Crl.M.C.No.2956/2014, is
conducting quarrying operation in the property of the third
accused, who is the third petitioner in Crl.M.C.No.3140/2014
after obtaining necessary licenses evidenced by Annexures-3
to 7 documents produced along with the petition filed by him.
There is no dispute that they are having valid documents. Since
the defacto complainant, Tahsildar, found that mining
operations are being conducted in the properties in violation of
the prohibitory order issued, he had sent Annexure-1(8)
complaint to the Sub Inspector of Police, Perumpetty, on the
basis of which, Annexure-1 First Information Report was
registered as Crime No.189/2011 of Perumpetty police station
Crl.M.C.Nos.2956 & 3140 of 2014 3
of Pathanamthitta district against the petitioners in both the
cases arraying them as accused 1 to 4 alleging commission
of the offence punishable under Section 9(B)(1)(b) of the
Explosive Act. After investigation, Annexure-4 final report
was filed against the petitioners in both the cases alleging
commission of the above said offence, which was taken on file
as C.C.No.621/2011 on the file of the Judicial First Class
Magistrate Court, Thiruvalla. Annexure-7 in
Crl.M.C.No.3140/2014 and Annexure-8 in
Crl.M.C.No.2956/2014 were produced by the petitioners in the
respective cases to prove that prohibitory orders have been
passed in respect of functioning of quarry in R.Sy.No.175/1 of
Block No.32 of Kottangal village alone and such notice has
been issued to one Aneesh Ismail. It was also alleged in both
the petitions that they have not received any notice or order
prohibiting quarrying in that resurvey number. Further it was
alleged in the petition that the defacto complainant wanted to
register a case only under the provisions of the Kerala Minor
Mineral Concessions Rules alone and no offence under
Section 9(B)(1)(b) of the Explosives Act was made out in the
complaint. So, according to them, no offence under the above
Crl.M.C.Nos.2956 & 3140 of 2014 4
said section has been committed or made out and continuing to
proceed with the case will amount to an abuse of process of
court. So they have no other remedy except to approach this
Court seeking the following reliefs:
Crl.M.C.No.2956/2014:
For these and other grounds urged at the time of
hearing this Hon'ble Court may be pleased to call for the
records and quash Annexure-2 Final report in Crime
No.189/2011 of Perumpetty Police, which is now pending as
C.C.No.621/2011 on the file of the Judicial First Class
Magistrate Court, Thiruvalla, in the interest of justice.
Crl.M.C.No.3140/2014:
For these and other grounds urged at the time of
hearing this Hon'ble Court may be pleased to call for the
records and quash Annexure-1 Final report in Crime
No.189/2011 of Perumpetty Police, which is now pending as
C.C.No.621/2011 on the file of the Judicial First Class
Magistrate Court, Thiruvalla, in the interest of justice.
3. The investigating officer has filed a statement stating
that on the basis of the complaint received from the Tahsildar,
Mallappally stating that defying the prohibitory order issued
against the functioning of quarries in R.Sy.Nos.173/3 and
173/11 of Block No.32 of Kottangal village, the petitioners
Crl.M.C.Nos.2956 & 3140 of 2014 5
were conducting quarrying operations in the above property,
Crime No.189/2011 under Section 9(B)(1)(b) of the Explosives
Act was registered against the petitioners in both the cases as
accused 1 and 3 are the owners of the property and accused
2 and 4 are the persons who are conducting quarrying in the
property. They were arrested and thereafter they were
released on bail and final report was filed and it was taken on
file as C.C.No.621/2011 on the file of the Judicial First Class
Magistrate Court, Thiruvalla. Since they apprehend that if
they are convicted, their explosive licence will be cancelled,
they approached this Court seeking quashing of the case and it
is not a fit case for quashing the case invoking the power
under Section 482 of the Code. So they prayed for dismissal
of these petitions.
4. As directed by this Court regarding the prohibitory
order issued in respect of the above property and as instructed
by the office of the Advocate General, the Tahsildar,
Mallappally issued a letter dated 21.7.2014 stating that there
was no prohibitory order issued against functioning of quarry
in Block No.32 in R.Sy.No.175/3 of Kottangal village, but as
per the directions of this Court in W.P.(C).No.5452/2010, the
Crl.M.C.Nos.2956 & 3140 of 2014 6
Village Officer had issued a prohibitory order against
functioning of the quarry in Block No.32 in R.Sy.No.175/11 of
Kottangal village and that letter was produced by the learned
Public Prosecutor along with the memo.
5. Heard both sides.
6. The learned counsel for the petitioners in both the cases
submitted that the defacto complainant had no case that the
petitioners have violated any conditions of the explosive
licence or quarrying licence issued. Further, there is nothing
on record to show that any prohibitory orders in respect of
Block No.32 in R.Sy.Nos.175/3 and 175/11 of Kottangal village
of Mallappally taluk have been issued by any of the
authorities under any law. In the absence of such evidence, the
offence under Section 9(B)(1)(b) of the Explosives Act is not
attracted. Further, as per the complaint, what was intended
by the Tahsildar was to initiate proceedings under the Kerala
Minor Mineral Concessions Rules and not for an offence under
the Explosives Act. Even if the entire materials produced
before the court is accepted, even then no offence is attracted.
So the learned counsel submitted that it is a fit case where
power under Section 482 of the Code can be invoked to quash
Crl.M.C.Nos.2956 & 3140 of 2014 7
the proceedings.
7. On the other hand, the learned Public Prosecutor
submitted that it is a matter for evidence and it is not a case to
be quashed by invoking the power under Section 482 of the
Code. Further, the letter of the Tahsildar will go to show that
there is prohibitory order against the functioning of quarry in
Block No.32 in R.Sy.No.175/11 of Kottangal village of
Mallappally taluk, that property belongs to the first accused,
in which the second accused is conducting the unauthorised
quarrying. So the entire case cannot be quashed.
8. It is an admitted fact that the property in
R.Sy.No.175/11 and 175/3 in Bock No.32 of Kottangal village of
Mallappally taluk belongs to accused 1 and 3 in
C.C.No.621/2011 on the file of the Judicial First Class
Magistrate Court, Thiruvalla, who are petitioners 1 and 3 in
Crl.M.C.No.3140/2013. It is also an admitted fact that the
petitioner in Crl.M.C.No.2956/2014 is conducting quarrying
operation in the property belonging to the third accused and
second petitioner in Crl.M.C.No.3140/2014 is conducting
quarrying operation in the property belongs to the first
accused, who were shown as accused 2 and 4 respectively in
Crl.M.C.Nos.2956 & 3140 of 2014 8
the above case. It is also an admitted fact that on the basis of
the complaint given by the Tahsildar, Mallappally, which was
attached to Annexure-1 First Information Report, the above
crime was registered. In the letter, it was only mentioned
that stop memo has been issued against conducting quarrying
operation in Block No.32 in R.Sy.No.175/11 to the second
accused and against conducting of quarrying operation in the
same Block number in R.Sy.No.173/3 to the 4th accused and
also to the respective owners namely accused 1 and 3 and
against the same, they found extraction of granite metals alone
from the property unauthorizedly, and thereby the petitioners
have committed the offence under the Kerala Minor Mineral
Concessions Rules and requested the Station House Officer,
Perumpetty to register a case accordingly. But the police had
registered the case not under the Kerala Minor and Mineral
Concession Rules but under Section 9(B)(1)(b) of the Explosive
Act.
9. Section 9(B) of the Explosives Act reads as follows:
[9B. Punishment for certain offences:- (1) Whoever,
in contravention of rules made under section 5 or of the
conditions of a licence granted under the said rules-
Crl.M.C.Nos.2956 & 3140 of 2014 9
(a) manufactures, imports or exports any explosive
shall be punishable with imprisonment for a term which
may extend to three years, or with fine which may extend
to five thousand rupees, or with both;
(b) possesses, uses, sells or transports any
explosive shall be punishable with imprisonment for a
term which may extend to two years or with fine which
may extend to three thousand rupees or with both; and
(c ) in any other case, with fine which may extend
to one thousand rupees.
(2) whoever in contravention of a notification
issued under section 6 manufactures, possesses or
imports any explosive shall be punishable with
imprisonment for a term which may extend to three years
or with fine which may extend to five thousand rupees
or with both; and in the case of importation by water,
the owner and master of the vessel or in the case of
importation by air, the owner and the master of the
aircraft, in which the explosive is imported shall, in the
absence of reasonable excuse, each be punishable with
fine which may extend to five thousand rupees.
(3) Whoever:-
(a) manufactures, sells, transports, imports, exports
or possesses any explosive in contravention of the
provisions of clause (a) of section 6A; or
Crl.M.C.Nos.2956 & 3140 of 2014 10
(b) sells, delivers or despatches any explosive in
contravention of the provisions of clause (b) of that
section, shall be punishable with imprisonment for a term
which may extend to three years or with fine or with both;
or
(c ) in contravention of the provisions of section 8
fails to give notice of any accident shall be punishable,-
(i) with fine which may extend to five hundred
rupees, or
(ii) if the accident is attended by loss of human
life, with imprisonment for a term which may extend to
three months or with fine or with both.]
10. In order to attract the offence under Section 9(B)(1)
(b), it must be proved by the prosecution that the person against
whom the case has been registered was in possession or uses
or sells or transports any explosive in contravention of the Rules
made under Section 5 or the conditions of the licence granted
under the said Rules. They have no case that the persons
who are conducting quarrying or persons who are using
explosives for functioning of the quarry are not having any
licence or permit to keep the explosive or they are in possession
of any excess quantity of the same as well. Further, the
Crl.M.C.Nos.2956 & 3140 of 2014 11
prosecution also had no case that they are not having any
licence to use the explosive as well. It is true that if there is
any prohibitory order against the functioning of quarry in a
particular place and in violation of the same anything is done,
then it may amount to an offence under Section 9(B)(1)(b) of
the Act as if there is any prohibitory order, they are not
expected to use the explosive substance for the purpose of
quarrying, which will amount to violation of the conditions of
the licences.
11. In order to prove this fact, the prosecution must
produce documents either before this Court or before the lower
court along with the final report to show that there was such a
prohibitory order and that prohibitory order was communicated
to the persons concerned. In this case, it was specifically
mentioned in the letter of the Tahsildar, Mallappally that there
was no such prohibitory order issued against the functioning
of quarry in Block No.32 in R.Sy.No.175/3 of Kottangal village
of Mallappally taluk which belongs to the third accused in
which the 4th accused is conducting the quarry. So, as far as
accused 3 and 4 are concerned, there is no violation as alleged
as well. So, under the circumstances, it cannot be said that they
Crl.M.C.Nos.2956 & 3140 of 2014 12
have committed any offence as alleged by the prosecution even
on the basis of the admission made by the Tahsildar in his
subsequent letter produced before this Court. So, no
prosecution will lie against accused Nos.3 and 4, who are the
third petitioner in Crl.M.C.No.3140/2014 and the petitioner in
Crl.M.C.No.2956/2014 and proceeding with the case against
them will amount to an abuse of process of court and the case
against them is liable to be quashed invoking the power under
Section 482 of the Code.
12. As regards accused 1 and 2 are concerned, though
it was mentioned in the letter and also in the complaint filed by
the Tahsildar that there was a prohibitory order against
functioning of quarry in Block No.32 in R.Sy.No.175/11 of
Kottangal village, no such document has been produced either
before this Court or produced before the investigating officer so
as to enable him to produce the same before court below along
with the final report. The main contention taken by the
petitioners is that there was no such prohibitory order. In spite
of that, no attempt was made on the part of the investigating
officer or the Station House Officer of Perumpatty police
station even to produce such an order before this Court as
Crl.M.C.Nos.2956 & 3140 of 2014 13
well and also they have no case that the order was intimated
to petitioners 1 and 2 as well. Unless it is made known to
them, it cannot be said that they were aware of such an order
and in violation of that order they have committed any act. I
have gone through the entire case diary file produced by the
learned Public Prosecutor in this case. There is nothing
produced to prove this fact. No documentary evidence has
been produced regarding this aspect as well. None of the
witnesses have seen the quarrying operation being done in the
property using explosive either at the time when the letter
was sent or even during the investigation. So, under the
circumstances, it cannot be said that the prosecution was able
to establish that accused 1and 2 in the above case, who are
petitioners 1 and 2 in Crl.M.C.No.3140/2014 have also
committed the offence alleged. So under the circumstances,
this Court feels that without any material produced before this
Court or before the lower court along with the final report, it
cannot be said that the prosecution has proved violation of the
prohibitory order which enables the police to register a case
against accused 1 and 2 also alleging commission of the
offence under Section 9(B)(1)(b) of the Explosives Act and
Crl.M.C.Nos.2956 & 3140 of 2014 14
proceeding with the case against them also will only amount
to an abuse of process of court. So, under the circumstances,
this Court feels that it is a fit case where the entire case
against the petitioners in both the cases has to be quashed
invoking the power under Section 482 of the Code as there is
no material produced either before this Court or before the
court below along with the final report to come to a conclusion
that either of the accused have committed the offence
alleged.
13. So, both the petitions are allowed and further
proceedings in C.C.No.621/2011(Crime No.189/2011 of
Perumpetty police station) pending before the Judicial First
Class Magistrate Court, Thiruvalla as against accused 1 to 4,
who are the petitioners in the above petitions is hereby
quashed.
Office is directed to communicate this order to the
concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl
/true copy/
P.S to Judge
Crl.M.C.Nos.2956 & 3140 of 2014 15
K. RAMAKRISHNAN, J.
.................................................
Crl.M.C.Nos.2956 & 3140 of 2014
..................................................
Dated this the .....day of September, 2014.
O R D E R
Crl.M.C.No.2956/2014 was filed by the 4th accused in Crl.M.C.Nos.2956 & 3140 of 2014 16 C.C.621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, while Crl.M.C.No.3140/2014 was filed by accused Nos. 1 to 3 in the same case, both for quashing the proceedings as against them under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ' the Code').
2. The common case of the petitioners in both these cases was that accused No.1 is having a property in Re.Sy.No.175/11 of Kottangal village and third accused was the owner of the property in Re.Sy.No.175/3 of Kottangal village and accused Nos.2 and 4 are conducting mining operations in the property belonging to accused 1 and 2 respectively independently.
3. The case of the prosecution was that they were conducting mining operations in the property in violation of the prohibitory order issued by the Tahsildar, who is the defacto complainant and thereby they have committed the offence punishable under Section 9(B)(1)(b) of the Explosive Act. According to petitioners 1 to 3, who are petitioners 1 to 3 in Crl.M.C.No.3140/2014, are the owners of the properties in Re.Sy.Nos.175/11 and 175/3 of Kottangal village respectively. Second petitioner in Crl.M.C.No.3140/2014, who is the second Crl.M.C.Nos.2956 & 3140 of 2014 17 accused was conducting mining operations in the property belonging to the first accused after obtaining necessary licences and permits evidenced by Annexures-3 to 6 documents produced by them in that case. The 4th accused in the same case, who is the petitioner in Crl.M.C.No.2956/2014 was conducting mining operations in the property of the third accused, who is the third petitioner in Crl.M.C.No.3140/2014 after obtaining necessary licenses as evidenced by Annexures- 3 to 7 documents produced by him along with the petition filed by him. There is no dispute that they are not having valid documents. Since the defacto complainant, Tahsildar, found that mining operations are being conducted in the property in violation of the prohibitory order issued, he had sent Annexure- 1 (8) complaint to the Sub Inspector of Police, Perumpetty on the basis of which Annexure-1 First Information Report was registered as Crime No.189/2011 of Perumpetty police station of Pathanamthitta district against the petitioners in both the cases arraying them as accused 1 to 4 alleging commission of the offences punishable under Section 9(B)(1)(b) of the Explosive Act. After investigation Annexure-4 final report was filed against the petitioners in both the cases alleging Crl.M.C.Nos.2956 & 3140 of 2014 18 commission of the above said offence, which was taken on file as C.C.No.621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla. Annexure-7 in Crl.M.C.No.3140/2014 and Annexure-8 in Crl.M.C.No.2956/2014 were produced by the petitioners in the respective cases to prove that prohibitory orders have been passed in respect of functioning of quarry in Re.Sy.No.175/11 of Block No.32 of Kottangal village alone and such notice has been issued to one Aneesh Ismail and it was also alleged in both the petitions that they have not received any notice or order prohibiting quarrying in that resurvey number. // Further it was alleged in the petition that the registrar wanted to restrict a case only under the provisions of the Kerala Minor Mineral Concessions Rules alone and no offence under Section 9(B)(1)(b) of Explosive Act was made out in the complaint.// So according to them, no offence under the above said section has been committed or made out and continuing to proceed with the case will amount to an abuse of process of court. So they have no other option except to approach this Court seeking the following reliefs:
Crl.M.C.Nos.2956 & 3140 of 2014 19
4.//The investigating officer has filed a statement stating that on the basis of the complaint received from Tahsildar, Mallappally that defiling the prohibitory orders issued against the functioning of quarries in R.Sy.No.173/3 and 11 of Block No.32 of Kottangal village Crime No.189/2011 under Sections 9(B)(1)(b)of Explosive Act was registered against the petitioner in both the cases as accused 1 and 3 are the owners of the property and accused 2 and 4 are the persons who are conducting quarrying in the property.// They were arrested and thereafter they were released on bail and final report was filed and it was taken on file as C.C.No.621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla. Since they apprehend that they were convicted, their explosive licence will be cancelled, they approached this Court seeking quashing of the case and it is not a fit case for quashing the case invoking the power under Section 482 of the Code. So they prayed for dismissal of these petitions.
5. As directed by this Court regarding the prohibitory order issued in respect of the above property and as instructed by the office of the Advocate General, the Tahsildar, Mallappally issued a letter dated 21.6.2014 stating that there Crl.M.C.Nos.2956 & 3140 of 2014 20 was no prohibitory order issued against functioning of quarrying in Block No.32 in Re.Sy.No.175/3 of Kottangal village but as per the directions of this Court in W.P.(C). No.5452/2010, the Village Officer had issued a prohibitory order against functioning of the quarry in Block No.32 in Re.Sy.No.175/11 of Kottangal village and that is produced by the learned Public Prosecutor along with the memo.
6. Heard both sides.
7. The learned counsel for the petitioners in both the cases submitted that the defacto complainant had no case that the petitioners have violated any conditions of the explosive licence or quarrying licence issued. Further, there is nothing on record to show that any prohibitory orders have been in respect of Block No.32 in Re.Sy.No.175/3 and 175/11 of Kottangal village of Mallappally taluk issued by any of the authorities under the Act. In the absence of such evidence, the proceedings under Section 9(B)(1)(b) of Explosive Act is not attracted. Further, as per the complaint, what was intended by the Tahsildar was to initiate proceedings under the Kerala Minor Mineral Concessions Rules and not for an offence under the Explosive Act. Even if the entire materials produced Crl.M.C.Nos.2956 & 3140 of 2014 21 before the court is accepted, even then no offence is attracted. So he submitted that it is a fit case where power under Section 482 of the Code has to be invoked.
8. On the other hand, the learned Public Prosecutor submitted that it is a matter for evidence and it is not a case to be quashed by invoking the power under Section 482 of the Code. Further the letter of the Tahsildar go to show that there is prohibitory order against functioning of quarry in Block No.32 in Re.Sy.No.175/11 of Kottangal village of Mallappally taluk which property belongs to the first accused in which the second accused conducting the unauthorised quarrying. So the entire case can be quashed.
9. It is an admitted fact that the property in Re.Sy.No.175/11 and 175/3 in Bock No.32 of Kottangal village of Mallappally taluk belongs to accused 1 and 3 in C.C.No.621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, who are petitioner Nos.1 to 3 in Crl.M.C.No.3140/2013. It is also an admitted fact that the petitioner in Crl.M.C.No.2956/2014 was conducting quarrying operation in the property belonging to the third accused and second petitioner in Crl.M.C.No.3140/2014 was conducting Crl.M.C.Nos.2956 & 3140 of 2014 22 quarrying operation in the property belongs to the first accused, who were shown as accused 2 and 4 respectively in the above case. It is also an admitted fact that on the basis of the complaint given by the Tahsildar, Mallappally, which was attached to Annexure-1 First Information Report, that the above crime was registered. In the letter it was only mentioned that stop memo has been issued against conducting quarrying operation in Block No.32 in Re.Sy.No.175/11 to the second accused and against conducting of quarrying operation in the same Block number in R.Sy.No.173/3 to 4th accused and also to the respective owners namely accused 1 and 3 and against the same, they found extraction of granite metals against the stop memo unauthorizedly and thereby they have committed the offence under the Kerala Minor Mineral Concessions Rules and requested the Station House Officer, Perumpetty to register a case accordingly. But the police had registered a case not under the Kerala Minor and Mineral Concessions Rules but under Section 9(B)(1)(b) of Explosive Act. Section 9(B) of Explosive Act reads as follows:
Crl.M.C.Nos.2956 & 3140 of 2014 23
10. In order to attract the offence under Section 9(B)(1)
(b) it must be proved by the prosecution that the person against whom the case has been registered was in possession or using or sells or transport any explosive in contravention of the Rules made under Rule 5 of the conditions of the licence granted under the said Rules. They have no case that the persons who are conducting quarrying or persons who are using the explosives for functioning the quarry is not having any licence or permit to keep the explosives or they are in possession of any excess quantity of the same as well. Further, the prosecution also had no case that they are not having licence to use the explosives as well. It is true that if there is any prohibitory order against the functioning of quarrying in a particular place and in violation of the same anything is done, then it may amount to an offence under Section 9(B)(1)(b) of the Act as if there is no prohibitory order they are not expected to use the explosive substance for the purpose of quarrying which will amount violation of the conditions of the policy. So, in order to prove this fact, the prosecution must produce documents either before this Court or before the lower court along with the final report that there was such a Crl.M.C.Nos.2956 & 3140 of 2014 24 prohibitory order and that prohibitory order was communicated to the persons concerned. In this case, it was specifically mentioned in the letter of the Tahsildar, Mallappally that there was no such prohibitory order issued against functioning of the quarry in Block No.32 in Re.Sy.No.175/3 of Kottangal village of Mallappally taluk which belongs to the third accused and in which the 4th accused is conducting the quarrying. So, as far as accused 3 and 4 are concerned, there is no violation alleged as well. So, under the circumstances, it cannot be said that they have committed any offence as alleged by the prosecution even on the basis of the admission made by the Tahsildar in his subsequent letter produced before this Court. So, no prosecution will lie against accused Nos.3 and 4, who are the third petitioner in Crl.M.C.No.3140/2014 and the petitioner in Crl.M.C.No.2956/2014 and proceeding with the case against them will amount to an abuse of process of court and the case against them is liable to be quashed invoking the power under Section 482 of the Code.
11. As regards accused 1 and 2 are concerned, though it was mentioned in the letter and also in the complaint filed by Crl.M.C.Nos.2956 & 3140 of 2014 25 the Tahsildar that there was a prohibitory order against functioning of quarry in Block No.32 in Re.Sy.No.175/11 of Kottangal village, no such document has been produced either before this Court or produced before the investigating officer so as to enable him to produce the same before court. The main contentions taken by the petitioners is that there was no such prohibitory order. In spite of that, no attempt was made on the part of the investigating officer or the Station House Officer of Perumpatty police station even to produce such an order before this Court as well and also they have no case that this was intimated to petitioners 1 and 2 as well. Unless it is made known to them, it cannot be said that they were aware of such an order and in violation of that order they have committed any act. I have gone through the entire case diary file produced by the learned Public Prosecutor in this case. There is nothing produced to prove this fact. No documentary evidence has been produced regarding this aspect as well. Non of the witnesses have seen the quarrying operation being done in the property using explosive either at the time when the letter was sent or even during the investigation. So, under the circumstances, it cannot be said that the prosecution was able Crl.M.C.Nos.2956 & 3140 of 2014 26 to establish that accused 1 to 3 in the above case who are petitioners 1 to 3 in Crl.M.C.No.3140/2014 were also committed the offence alleged. So under the circumstances, this Court feels that without any material produced before the court or before the lower court along with the final report it cannot be said that the prosecution has proved any violation of the prohibitory order which enables the police to register a case against accused 1 and 2 also alleging commission of the offence under Section 9(B)(1)(b) of Explosive Act and proceed case against them will only amount to abuse of process of court. So, under the circumstances, this Court feels that it is a fit case where the entire case against the petitioners in both the cases has to be quashed invoking the power under Section 482 of the Code as there is no material produced either before this Court along with the final report to come to a conclusion that either all the accused have committed the offence alleged. So both the petitions are allowed and further proceedings in C.C.No.621/2011 (Crime No.189/2011 of Perumpetty police station pending before the Judicial First Class Magistrate Court, Thiruvalla as against accused 1 to 4, who are the petitioners in the above petitions is hereby Crl.M.C.Nos.2956 & 3140 of 2014 27 quashed.
Office is directed to communicate this order to the concerned court immediately.
K. RAMAKRISHNAN, JUDGE.
cl Crl.M.C.Nos.2956 & 3140 of 2014 28