Madras High Court
M.Antony Gomez vs The State Represented By on 19 September, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.09.2014 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI Crl.O.P.No.6882 of 2014 and M.P.Nos.1 and 2 of 2014 M.Antony Gomez ... Petitioner M/s.MAG Blue Metals Vs. The State represented by the Inspector of Police, D5 Palur Police Station, Kancheepuram District. ... Respondent Prayer : Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, praying to call for the records pertaining to the First Information Report in Crime No.225 of 2012 on the file of the respondent police and quash the same. For Petitioner : Mr.N.R.Elango, SC Mr.N.Manokaran For Respondent : Mr.Shanmugavelayutham, PP assisted by Mr.C.Emalias, APP O R D E R
This criminal original petition is filed by A4 to quash the FIR in Cr.No.225 of 2012 on the file of the respondent police, registered for the offence under section 5 of the Indian Explosive Substance Act 2001, (hereinafter shortly referred to as Act) on the basis of the Special Report given by one Lakshmi Narayanan, Inspector of Police, D2 Taluk Police Station, Maraimalai Nagar, Kancheepuram District.
2.The complaint proceeds as if at about 13.45 on 8.6.2012, on instructions from the Superintendent of Police, Kancheepuram, the Inspector of Police, by name Lakshmi Narayanan along with one Murthi, Sub Inspector of Police, D5 Palur Police Station, Murugan, Special Sub Inspector of Police and Suresh, Police constable, had been to Sankarapuram stone quarrying area, by way of surprise inspection. At that time, they found raw materials such as, open boosters, Ammonium rolls and Gelatin sticks stored in the shed adjacent to quarrying area and A1 Krishnan, A2 Jeeva @ Jeevanantham and A3 Saravanan were present inside the shed and when they were questioned, they informed that the explosive substances were kept in the shed at the instance of the owner Antony Gomez, Manager Kothandam and Supervisor Senthil and one Balu @ Balasundaram, and explosive substances were stored there without any licence. At the same time, the Police officials have also seen a Tata Tarras Lorry bearing Regn.No.AP 16 TV 5445, which was parked near the shed. The Police officials arrested A1 to A3 and seized explosive substances viz., (i)Electric Detonator 358 nos. (ii)Cable Electric Detonator 429 nos. (iii)Gelatin Sticks 128 nos. (iv)Detonator cables 346 nos. (v)Ammonium Hydrate packed Rolls 131 nos. (vi)Boosters 135 nos and (vii)Ammonium Nitrate seven bags weighing 25kg each under seizure mahazar and removed them safely and handed over the accused along with seized articles to the Inspector of Police, D2 Palur Police Station, Chengalpet Taluk, along with the special report.
3.The case was, on the basis of such report, registered as FIR in Cr.No.225 of 2012 for the offence stated above and in the course of investigation, confession statements were obtained from the arrested accused and on the basis of the alleged confession of statement of A1 who was already arrested, the owner of stone quarry, who is the petitioner herein was implicated as A4.
4.The petitioner has come forward with this petition to quash the FIR, on the ground that the lorry along with its contents was meant for one Dhanakotteeswaran, who was the erstwhile licence holder and who stored the explosive substance in the petitioner's stone quarry and the petitioner stopped him from engaging him for quarrying operation, thereby he developed some grudge against the petitioner and in order to wreck vengeance, the explosive substance was brought near the petitioner's quarry site and the same resulted in arrest, seizure and registration of the case against the petitioner herein. Therefore, it is submitted that the petitioner has nothing to do either with the lorry or with the contents of the same.
5.The petitioner has also sought to quash the FIR on other grounds that though the invoices and way bills are in the name of the company by name M/s.Parry Chemicals and company, which belongs to Dhanakotteeswaran, who purchases Ammonium nitrates and other chemicals for the purpose of selling it in retail, he is not implicated as accused and that, the only material available against the petitioner herein is the confession statement of A1 to the respondent police, which can be used only for the limited extent of section 27 of the Indian Evidence Act and except the same, no other legal evidence is available to implicate the petitioner in the case. It is his further case that even assuming it to be true that the explosive substances were found in the shed near the quarrying site, the licence holder of the Explosive Substance is responsible for the materials used for blasting work, as and when required for quarrying operation. As per the agreement entered into between the owner of the site and explosive licence holder by name Kaliammal, Proprietor of M/s.Lakshmi Explosives, the petitioner has nothing to do with the explosive substance, if any, seized from the shed in question. It is also the case of the petitioner that as Ammonium nitrate is notified as explosive only on 21.12.2012, with effect from 21.7.2011, the same seized on 8.6.2012 cannot be treated as explosive for all practical purposes and no offence is attracted and no FIR registered for the same is maintainable.
6.The learned senior counsel for the petitioner in support of his contention, produced the following documents by way of typed set along with this quash petition: (i)copy of the stone quarry lease order, (ii)quarrying lease deed in the name of the petitioner, (iii)Explosive licence in the name of M/s.Lakshmi Explosives, (iv)agreement between the petitioner and M/s.Lakshmi Explosives, (v)blasting agreement between the petitioner and one Balasundaram, (vi)communications between the Deputy Superintendent of Police and the District Collector for cancelling the quarrying licence issued in the name of the petitioner and (vii)representations made by the petitioner to the District Collector, Superintendent of Police, Deputy Superintendent of Police etc.
7.Per contra, the learned Public Prosecutor representing the respondent police, has reiterated the averments raised in the affidavit filed in support of the vacate stay petition that the accused had been keeping the explosive substance for quarrying operation without any licence and the same is punishable under section 5 of the Act.
8.Heard the rival submissions made on both sides.
9.It is not in dispute that the petitioner was granted stone and earth quarry lease on 30.5.2008 in respect of the rough stone quarry measuring 2.58.5 Hectares comprised in S.F.Nos.243/5, 244/1,2,5,9,10 and 11 in Palayaseevaram Village, Madura Sankarapuram, Kancheepuram Taluk for a period of 5 years, subject to certain conditions. In pursuance of the same, he entered into an agreement with the State Government. One of the conditions imposed is that the petitioner will use lesser quantity of explosives with the assistance of authorised explosive licence holder. In compliance with the conditions as stated above, the petitioner entered into an agreement with one Kaliammal who is the proprietor of M/s.Lakshmi Explosives, for carrying on blasting operation in the above site and it is the responsibility of the explosive licence holder to make his own arrangements for the explosives and exploding equipments required for the work and the entire blasting in the quarry and the possession of the blasting equipment will be handled by the explosive licence holder and other party will be liable to pay periodically for the quantity used, explosives consumed and hours and time of the exploding equipments put into use and the rates for the times of work will be mutually agreed as marginal cost which includes cost of explosives, transportation cost and other charges for blasting work. The same was followed by another agreement styled as blasting agreement between the petitioner company and one M/s.Shri Venkateshwara Constructions, as per which, the explosive required for control blasting operations and licence for utilisation and holding the same shall be arranged by M/s.Shri Venkateshwara Constructions/sub contractor.
10.Thus, the combined appreciation of the conditions subject to which licence was granted to the petitioner for carrying on stone and earth quarrying and the separate agreements entered into between the authorised explosive licence holder as above referred to would reveal that it is the responsibility of the explosive licence holder to arrange for the explosives and exploding equipments and transportation of the same and that, the Sub Contractor will arrange the explosive required for control blasting operations and licence for utilisation and holding the same and the only liability on the part of the licence holder of the quarry work is to pay the cost for the quantity of explosives used and consumed etc. Only in this factual background, the allegations raised in the FIR are to be necessarily appreciated.
11.For the said purpose, Section 5 of the Explosives Substance Act 1908, as amended by Act 54 of 2001 is extracted below:
5. Punishment for making or possessing explosive under suspicious circumstances- Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished.
(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine.
(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. The plain reading of the provision of section 5 of the Act would make it clear that the possession of the explosives, not for lawful object and without valid licence only is an offence punishable under section 5 of the Act. Even as per the counter affidavit filed by the respondent herein and as per the so called confession statement of the co-accused, the explosives were stored in the shed, at the instance of the licensed quarrying operator for using the same for blasting work, which is one of the permissible acts for carrying on quarrying operation. Here is the case, wherein the petitioner has nothing to do with the explosive substances produced for blasting work and it is the whole responsibility of the explosive licence holder, who is now arrayed as A7 in this case. The petitioner is in no way responsible for obtaining licence for explosives and it is for the explosive licence holder to make arrangement for the same.
12.It is also relevant to mention at this juncture that the complaint does not specifically say that the shed, in which it was stored is arranged by the petitioner herein or do form part of the petitioner's quarrying site. The only incriminating material made available against the petitioner herein is the confession statement of the co-accused to the effect that the explosives were stored in the shed as instructed by the petitioner, who is the licensed quarrying operator. Further, the allegations raised in the complaint do not specifically say that the nature of the association between A1 to A3 on one hand and A4 on other hand. It is nobody's case that A1 to A3 are the employees of A4 and in-charge of either shed or explosives stored in the same. Only a vague attempt is made in the FIR to connect the explosives seized in the shed with that of the explosives seized in lorry, which is according to the petitioner, meant for one M/s.Parry Chemicals and Company owned by Dhanakotteeswaran, who was the petitioner's previous explosive license holder and who was stopped from such work by the petitioner.
13.In the absence of any other material, except the confession statement of co-accused, the factual aspects as stated above, if are viewed in the light of necessary ingredients of section 5 of the Act, the same would undoubtedly lead to an inference that the allegations raised in the complaint do not attract any offence against the petitioner herein, who has nothing to do with the possession of the explosives in the shed in question, as such, he cannot be subjected to face the ordeal of trial. In the event of the criminal proceedings being allowed to go on, it amounts to an abuse of process of law and the same would greatly prejudice the petitioner and the FIR registered against the petitioner is hence liable to be quashed.
14.Yet another ground raised on the side of the petitioner in support of the relief sought for herein is that the seizure of Ammonium nitrate from the shed in question on 8.6.2012 will not attract any offence for the simple reason that Ammonium nitrate was notified as explosive with effect from 21.7.2011, only through notification dated 21.12.2012 and as on the date of seizure of the explosives, the same is not explosive and the possession of the same will not amount to any offence. The learned senior counsel for the petitioner in support of such contention cited the judgment of this Court reported in 2013-2-LW (Crl) 554 (V.Sekar v. the State rep. by Inspector of Police, Vellore North Police Station, Vellore). The case cited before this court, arises out of the order, refusing to return of 554 bags of Ammonium nitrate belonging to the petitioner therein. The learned brother judge in para 6 of the judgment referred to the decision of the Hon'ble Apex court reported in CDJ 2010 APHC 279 (O.Sudheer Reddy and another v. State by Sub Inspector of Police), wherein the Hon'ble Apex court quashed the FIR relating to possession of explosives, for the offence under Section 9B of the Explosives Act 1884 on the ground that the Ammonium nitrate is not an explosive and the Ammonium Nitrate is meant for the purpose of using the same in blasting boulders in stone crushers and end user of Ammonium Nitrate is not material and the possession of Ammonium Nitrate simplicitor without licence is not an offence. Following the same, the learned brother judge allowed the revision petition and ordered return of Ammonium Nitrate to the petitioner therein.
15.Thus, viewing from any angle, the allegations raised in the FIR do not make out any case against the petitioner herein both legally and factually, as such, there is no justification for this court to allow the prosecution to continue against the petitioner herein and in order to secure the ends of justice, the FIR is liable to be quashed and is quashed.
16.In the result, this Criminal Original Petition is allowed as prayed for. Consequently, connected miscellaneous petitions are closed.
Index:Yes/No
Internet:Yes/No 19.09.2014
rk
K.B.K.VASUKI, J.
To
1.The Inspector of Police,
D5 Palur Police Station, Kancheepuram District.
2.The Public Prosecutor, High Court, Madras.
Crl.O.P.No.6882 of 2014
19.09.2014