Kerala High Court
Ziad A.R vs State Of Kerala on 9 December, 2016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938
Crl. MC. No.5269 of 2013 ()
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CRIME NO.1471/2013 OF KOLLAM WEST POLICE STATION, KOLLAM
PETITIONER(S)/ACCUSED:
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ZIAD A.R, S/O. A.A.RASHEED, AGED 45 YEARS,
HOUSE, THEKKEYINCHAKKAL, PUNNATHALA, THIRUMULLAVARAM,
KOLLAM, PIN CODE-691012.
BY ADV. SRI.S.MOHAMMED AL RAFI
RESPONDENT(S)/STATE AND DE-FACTO COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR AT THE
HIGH COURT OF KERALA, ERNAKULAM-695001.
2. SUB INSPECTOR OF POLICE,
KOLLAM WEST POLICE STATION, KOLLAM-691001.
BY PUBLIC PROSECUTOR SRI.K.V.UDAYAKUMAR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-12-2016,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl. MC.No.5269 of 2013 ()
APPENDIX
PETITIONER(S)' ANNEXURES:-
ANNEX.1:-CERTIFIED COPY OF THE SEIZURE MAHAZAR OF KOLLAM WEST POLICE
STATION.
ANNEX.2:-CERTIFIED COPY OF THE REQUEST DTD.28/10/2013 BY THE POLICE.
ANNEX.3:-A CERTIFIED COPY OF THE OFFICIAL MEMORANDUM OF THE JFMC II,
KOLLAM.
ANNEX.4:-COPY OF THE LETTER DTD 16/2/10 BY THE EXPLOSIVES DEPARTMENT.
RESPONDENT(S)' ANNEXURES:-NIL
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KRJ
/TRUE COPY/
P.A. TO JUDGE
K. P. JYOTHINDRANATH, J
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Crl. M.C. No.5269 of 2013
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Dated this the 9th day of December, 2016
ORDER
This is a petition filed under Section 482 of the Code of Criminal Procedure. The case of the petitioner is that he is the accused in Crime No.1471 of 2013 of Kollam West Police Station. The said crime is registered for offence under Section 9B(1)(b) of Explosives Act, 1884, which is a suo motu proceedings initiated by the police. The allegation is that the petitioner was seen in possession of excess quantity of fire works and crackers that can be possessed by a licence issued in favour of him.
2. When the petition came up for hearing, the learned counsel for the petitioner submitted before me that there is no dispute regarding the fact that the petitioner is a licensed vendor of fire works. It is the submission that he is entitled to possess 1500 kilograms at a time. It is also the submission that the second respondent conducted a search in his shop room on 27.10.2013 and seized fire works/crackers. It is the allegation that as per the search memorandum, Police seized 5577.02 kilograms item and out of the same, 452 kilograms is that of hand made crackers using palm Crl.MC.5269/13 -:2:- leaves. It is the submission that the above seized articles were produced before the court and an order obtained by the Police Officer to defuse the articles. It appears that as per an official memorandum with Reference No.1943/2013, an order was passed by the Judicial First Class Magistrate-II, Kollam, whereby permission was granted to the S.H.O., Kollam West Police Station, for defusing the material objects, which being explosives in Crime No.1471 of 2013 of the said police station and a report is also seen called as per the said order. It is the submission that, it cannot be termed as a judicial order by the Magistrate which was passed in the above crime. It is the submission that no notice was issued in respect of the same to the petitioner herein, which caused prejudice. It is also the submission that the petitioner lost an opportunity to highlight the relevancy of Rules 15 and 16 of the Explosives Rules, 2008. It is the specific submission of the learned counsel that there was denial of natural justice to the petitioner.
3. The above order referred is annexed as Annexure-3 in the petition. It is the submission that if the said order is not quashed, it will materially prejudice his defence.
4. The offence is that of the year 2013. Now, we are in 2016. The learned Public Prosecutor submitted before me that the charge Crl.MC.5269/13 -:3:- so far is not filed. As per Section 9B1(b) of the Explosives Act, the punishment is "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".
5. As already stated, the offence is that of the year 2013. If a charge is filed, the petitioner may have all the legal defence that can be raised. But surely, this Court feels that the prayer to defuse an explosive cannot be interfered with, as undefused explosives cannot be kept in Court/Police Station. Thus, the prayer is disallowed.
With the above observations, this Crl.M.C is dismissed.
Sd/-
K. P. Jyothindranath, Judge krj.13/12