Kerala High Court
Sunil Kumar vs Additional Sub Inspector Of Police on 20 November, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939
Crl.MC.No. 2344 of 2014 ()
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AGAINST THE ORDER/JUDGMENT IN CC 420/2011 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT, KARUNAGAPALLY
CRIME NO. 1602/2010 OF CHAVARA POLICE STATION , KOLLAM
PETITIONER(S)/PETITIONER:
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SUNIL KUMAR
PLANT MANAGER,HINDUSTAN PETROLEUM CORPORATION
LIMITED,IRUMPANAM,ERNAKULAM DISTRICT,S/O.LATE
T.M.UNNICHEKKAN,AGED 38 YEARS,RESIDING AT CHALUKANDATHIL
HOUSE,NEAR DAYA BHAVAN
HOSTEL,PULARIPURAM,KAKKANAD,ERNAKULAM DISTRICT-682021.
BY ADV. SRI.B.N.SHIVSANKAR
RESPONDENT(S)/RESPONDENTS:
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1. ADDITIONAL SUB INSPECTOR OF POLICE
CHAVARA POLICE STATION,KOLLAM.
2. STATE OF KERALA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA.
R BY ADV.P.N.SUMODU, PUBLIC PROSECUTOR
THIS CRIMINAL MISCELLANEOUS CASE HAVING BEEN FINALLY HEARD ON
7.4.2017, THE COURT ON 25.5.2017 PASSED THE FOLLOWING:
Crl.MC.No. 2344 of 2014 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE-A1 COPY OF THE AGREEMENT DATED 20/11/2009
ANNEXURE-A2 COPY OF THE MAHAZAR PREPARED BY THE IST
RESPONDENT DATED 18/11/2010
ANNEXURE-A3 COPY OF THE FIRST INFORMATION REPORT DATED
18/11/2010
ANNEXURE-A4 COPY OF THE FINAL REPORT DATED 19.11.2010
ANNEXURE-A5 COPY OF THE INVOICE NO.10006614 AI DATED
18/11/2010.
RESPONDENT(S)' EXHIBITS
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NIL
TRUE COPY
SKS P.A TO JUDGE
A.M.BABU, J.
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Crl.M.C.No. 2344 OF 2014
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Dated 25th May, 2017
ORDER
Petitioner seeks to quash all proceedings against him in C.C. 420/2011 pending before the Judicial First Class Magistrate Court, Karunagapally. The relief is sought under Sec.482 of Cr.P.C.
2. Heard the learned counsel for the petitioner and the learned public prosecutor.
3. The petitioner is working as the plant manager at the liquefied petroleum gas bottling plant at Irumpanam in Ernakulam district. He is the third accused in C.C.420/2011. Loaded liquefied petroleum gas cylinders were being transported on 18.11.2010 in a truck from the bottling plant at Irumpanam to the dealer by name Divine Gas Agency, Thiruvananthapuram. The truck was intercepted at 11.30 p.m by the first respondent, the additional sub-inspector of Chavara police station, at a place within his police station limits. He registered a case as crime no.1602/2010 as there was no spare driver in the truck. The truck was taken into custody under annex-A2 seizure mahazar. The driver of the truck was arrested. He is the first accused. Annex-A3 FIR was registered. Annex-A4 is the charge-sheet. 2 Crl.M.C.No. 2344 OF 2014
4. The case is really a strange one. The provisions of law under which the case was registered as shown in annex-A3 FIR were Sec.9B of the Explosive Substances Act and rule 81(9) of the Explosives Rules. But there are only seven sections in the Explosive Substances Act. In annex-A4 charge-sheet Sec.9B of the Explosive Substances Act was replaced by Sec.9(b) of the Explosives Act. Rule 81(9) of the Explosives Rules was retained even at the time of filing the charge-sheet. Sec.9 of the Explosives Act is not a penal provision at all. Rule 81 of the Explosives Rules is a rule without any sub-rule. It is not known from where the first respondent got sub-rule (9) for rule 81. Rule 81 is an entirely different provision and it has nothing to do with a spare driver in a vehicle in which anything is transported. What rule 81 provides is that the magazine used for storage of explosives shall be constructed as per specification 2 of Schedule VII. Rule 2(31) of the Explosives Rules defines 'magazine' to mean a building or structure, other than an explosives manufacturing building, intended for storage of explosives, specially constructed in accordance with the specification provided under the Explosives Rules or of a design and approved 3 Crl.M.C.No. 2344 OF 2014 by the chief controller. It has nothing to do with a truck or any other vehicle in which explosives are transported. Provisions of law are shown in the FIR and the charge-sheet carelessly and without any idea.
5. Sec. 9(b) of the Explosives Act shown in annex-A4 charge- sheet seems to be a mistake for Sec.9B of the said Act. Sec.9B is a penal provision. Manufacture, export, import, transport et cetera of explosives in contravention of the provisions of the Explosives Act, Explosives Rules, conditions of licence granted under the rules, notifications issued et cetera are punishable offences under Sec.9B of the Explosives Act. Sec.2(d) of the Explosives Act defines the term 'explosive'. Liquefied petroleum gas is not included in the definition and therefore the same is outside the purview of the said Act. The petitioner therefore cannot be charged under Sec.9B of the Explosives Act.
6. The learned counsel for the petitioner submits that the only provision which insists on a spare driver for a vehicle is Rule 90 of the Central Motor Vehicles Rules. The said rule insists on a spare driver for a vehicle in respect of which national permit is issued. The prosecution has no case that the vehicle intercepted 4 Crl.M.C.No. 2344 OF 2014 and seized by the first respondent was a vehicle having national permit. Therefore rule 90 too has no application.
7. What follows from the discussion above is that the petitioner is prosecuted in a criminal court for the absence of a spare driver in a truck which is not an offence. His prosecution amounts to persecution and abuse of process of court. Hence he is entitled to get the prosecution against him quashed.
8. The criminal miscellaneous case is allowed. The criminal prosecution against the petitioner and all proceedings against him in C.C. 420/2011 on the file of the court of the Judicial Magistrate of the First Class, Karunagapally are quashed.
sks/6.5.2017 A.M.BABU
Judge