Delhi District Court
S.K. Guru Swamey Son Of Shri Sita Ram vs The State on 3 September, 2011
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE (II) OUTER DISTRICT
ROHINI COUTRS : DELHI
CR No. : 1/11
1. S.K. Guru Swamey Son of Shri Sita Ram
R/o 8A/38, WEA, Karol Bagh, New Delhi.
2. R. Selladurai S/o Shri Raman
R/o 7/32 BK, Kandamaplayan Konur,
P.O. Namakkal, Distt. Tamil Nadu.
3. Kamlesh Kumar Mishra
S/o Shri Balibhadra Mishra
R/o E3, Yadav Nagar
Samairpur, Delhi.
4. Anil Kumar Yadav S/o Shri Sulfi Yadav
R/o House of Pandit Ji
Mandir Mohalla, Samairpur, Delhi.
5. Rameshwar Singh S/o Shri Bharat Singh
R/o Juggi No. 45/131, Bhagwanpura
Samaipur, Delhi. ....................Petitioners.
Versus
The State ............... Respondent.
ORDER
1. By this order, I shall dispose of a revision petition challenging the impugned Contd...
2order dated 21102010 passed by Shri Sudhanshu Kaushik, Ld. MM, Rohini Courts, Delhi whereby, the Ld. MM ordered for framing of the charge under Section 286 IPC and 9B of Explosive Act against the petitioners.
2. In brief the case of the prosecution is that on the intervening night of 3 4.10.2006, police officials namely SI Jagdish Ram, Constable Krishan Kumar, Constable Ramphal, constable Virender and Constable Jai Kumar were posted at police station S.P. Badli and were on patrolling duty. While patrolling, they reached division No. 4 at Sanjay Gandhi Transport Nagar. At 2:00 p.m, they received a secret information that one Guruswami, owner of Swami Transport is possessing huge quantity of fireworks in a truck parked in front of his office situated at AG361, Sanjay Gandhi Transport Nagar.
3. On receiving the secret information a raiding party was formed by SI Jagdish Rai and a number of passersby were requested to join but none agreed to join the investigation. Thereafter, the police party reached the office situated at AG361 and found some persons unloading wooden boxes from one truck bearing No. KA01AD3717 and were loading them in three separate trucks which were parked over there. All the five persons who were present at the spot were apprehended by the police officials.
4. On inquiry, it was revealed that one of them was S.K. Guruswami, owner of Swami Guruswami Transport Company. He had transported the fireworks contained in around 329 boxes from Tamil Nadu to Delhi without any license for the purpose of distributing it to various traders. The driver of the truck bearing No. KA01AD3717 is R. Sellaldurai S/o Raman R/o 7/32B, K. Kandampaly Konnour, PO Namakkal, Distrit Contd...
3Tamil Nadu was one of them who were apprehended from the spot. It was discovered that three persons were perhaps the drivers of other three tempos bearing No. DL1LE7138, DL1LD1851 and DL1LD5297 and they disclosed their names as Kamlesh Kumar, Anil Kumar Yadav and Rameshwar. Search was carried out and 47 boxes of Shivakashi fireworks were found loaded in tempo bearing No. DL1LE7138, 18 boxes were found loaded in tempo No. DL1LD5297 and 46 boxes were found loaded in tempo No. DL1LD1851.
5. The samples from each of the tempos were drawn and the same were retained. Each of the box was allotted serial number. The retained samples were sealed with the seal of "JR". A receipt of dharm kanta was found present in the truck No. KA01AD3717 wherein it was mentioned that the weight of 329 boxes was 12400 kilos i.e. 12.4 tons. The investigating officer Jagdish Rai filled up the FSL form at the spot and seal after use was handed over to HC Krishan Kumar. On the basis of the said facts IO, SI Jagdish Rai preapred the original rukka and handed over the same to constable Jai Kumar. On the basis of the said rukka, FIR No. 834/06 under Section 9B (B) I of the Explosive Act 1884 was registered at PS SP Badli.
6. On 28112006, the then controller Sh. M Manohar inspected the case property and the authorized magazine and on 29112006, he furnished a positive report in respect of explosive /fire works. Ld.
3. The basic challenge in the impugned order is that no license is required for transportation of fire works under the explosive Act 1884. It was also urged that the Ld. MM has not considered the letter dated 30092009, as per which no license is required for transportation of fireworks under explosive Rules 2008. He further urged Contd...
4that letter from joint controller of explosive Faridabad Haryana dated 15102006 also clearly mentions that no license is required for transportation of fire works by road and are exempted from any license under explosive rules.
4. The petitioner has been charged under section 9 B of the Explosive Act 1884, which provides punishment for a person who possesses, uses, sells, or transport any explosive in contravention of Rules made under section 5 or in contravention of condition of licence granted under the said rules. Section 5 of the Act vests power with the Central Government to make Rules as to licensing of the manufacture, possession, use, sale, transport, import and export of explosive.
5. Rule 32 which falls in chapter 4 of the explosive Rules 1983 provides for transportation of the fire works. According to Rule 32, no person shall transport, explosive except under and in accordance of a license granted under the rules. But according to proviso 5 of this Rule the transport of safety fuse and fire works provided the same are not transported with any corrosive or flammable material, the sub rule has no application to these two categories which makes clear that no license is required for transportation of fire works. Then there are other Rules like rule 33 which provides the restriction of transport of different explosive in the same carriage, rule 34 provides for a certificate of safety to be issued by the cosigner of the explosive and rule 35 provides that no explosive shall be transported in any carriage meant for carrying passengers on hire. Rule 45 further goes on to provide that nothing contained in Rule 35, 40 and 41 shall be applied to the transport of manufactured fire work in the custody of a person entitled to possess them without a license.
6. Certain other conditions have been laid down for transportation by road. In rule Contd...
575 to rule 86 in part IV but the fire works have been excluded under rule 75 to 77. There are other Rules like rule 80, 81 which further lays down conditions of loading, unloading, maintenance etc with regard to the transportation of the fire work is concerned.
7. Now coming to the instant case, the conduct of the petitioners in loading and unloading of the fire crackers from one truck to different type of trucks amounts to transportation within the meaning of Rule 2 (24) of the explosive substance Rule.
8. I have also perused the letter dated 15102006, and letter dated 30092009 which states that transportation of fire works by road are exempted from any license under Explosive Rule 1983. But this does not mean that there is a total liberty to transport any amount of fire works as desired. According to Section 9 B, a person who violates Rules made under section 5 makes himself liable for punishment and section 5 as already discussed herein above empowers the Central Government to make Rules as to licensing of the manufacture, possession, use, sale, transport, import and export of explosive.
9. Now coming to chapter IV of the Rules laid down for transportation, it is pertinent to mention rule 36 and rule 38 which reads as follows:
"36. Maximum consignments allowed. The quantity of explosives transported shall not exceed
(i) 10 tonnes or half the carrying capacity of a Railway wagon whichever is less;
(ii) 10 tonnes or the maximum carrying capacity of a road van licensed under these rules by a Regional Transport Authority, whichever is less, in any one carriage other than a Railway wagon:
Contd...6
Provided that if the explosives to be transported is of 2nd class, the quantity of explosives shall not exceed 15 tonnes or the maximum carrying capacity of the van, which ever is less;
(iii) one tonne in any animal drawn carriage;
(iv) 22.5 tonnes in any one boat;
(v) quantity specified in Schedule VI in any one aircraft.
38. Place and time of loading and unloading. (1) Every explosive shall be loaded and unloaded at a safe distance from the station building, passenger platforms, dwelling houses, factories, public buildings and other buildings or places where persons assemble or any flammable or other hazardous goods are stored or handled.
(2) Every explosives intended for transport by road whether under a license or otherwise shall be loaded only near a licensed magazine, licensed store house or other licensed premises.
(3) Loading of explosives after sunset within a licensed factory may be carried out up to 22.00 hours at a well illuminated place approved by the Chief Controller.
(4) Nothing in rule 13 and subrule (1) shall apply to any operations connected with the transport of explosives by passenger train or by a "pick up or "van" or goods train used for the transport of small consignments or in the brake van of mixed train.
Contd...
7
10. In the instant case the amount of explosive transported were 12.4 tons which is in clear violation of Rule 36. It is evident from the fact that these explosive were being loaded and unloaded in violation of Rule 38. So the petitioners were transporting huge quantity of fire works in violation of the conditions provided in the explosive rules 1983 so their conduct clearly falls within ambit of Section 9 B of Explosive Act 1884.
11. So, in view of the discussions, hereinabove, I find no infirmity in the impugned order dated 21102010 passed by the Ld. Trial Court. The impugned order dated 21102010, is, therefore, maintained. The revision petition is dismissed. Petitioners are directed to appear before the Ld. trial Court on 23092011. T.C.R. be sent back alongwith the copy of this order. Revision file be consigned to Record Room. (Announced in the open Court on 03092011).
(RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGEII, OUTER DISTRICT, ROHINI COURTS, DELHI Contd...
8C.R. No. : 1/11 S.K. Guru Swamey etc. Vs. The State 03092011 Present : Sh. Shiv Kumar, Ld. APP for the State None for the petitioners.
Vide separate order dictated and announced in the open Court today, the revision petition is dismissed. Petitioners are directed to appear before the Ld. Trial Court on 23092011. T.C.R. be sent back alongwith the copy of this order. Revision file be consigned to Record Room.
(RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGEII, OUTER DISTRICT, ROHINI COURTS, DELHI Contd...