Kerala High Court
Sasi P.U vs State Of Kerala on 28 June, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA,
1946
CRL.MC NO. 5008 OF 2024
CRIME NO.305/2024 OF PUDUNAGARAM POLICE STATION,
PALAKKAD AGAINST THE ORDER/JUDGMENT IN CMP NO.1782
OF 2024 OF JUDICIAL MAGISTRATE OF FIRST
CLASS ,CHITTUR
PETITIONER:
SASI P.U
AGED 73 YEARS
PADANADAN HOUSE, CHETHIKODE, NAYATHODE,
THURAVOOR, ANGAMALY, ERNAKULAM., PIN -
683572
BY ADVS.
K.R.VINOD
M.S.LETHA
NABIL KHADER
RAHUL.S
LOVEWIN VINU
GEORGE ROY
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH
COURT OF KERALA, PIN - 682031
BY ADV.
SREEJA V (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 28.06.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.MC No.5008 of 2024
2
BECHU KURIAN THOMAS, J
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Crl.M.C. No. 5008 of 2024
.......................................................
Dated this the 28th day of June, 2024
ORDER
In this petition, under Section 482 of Cr.P.C, petitioner challenges Annexure A6 order rejecting an application under Section 457 of Cr.P.C seeking release of firecrackers.
2. On 06.04.2024, a vehicle bearing registration No.TN- 39-CH-8411 was intercepted by the Sub Inspector of Police, Pudunagaram Police Station, Palakkad. The inspection of the said vehicle revealed that it contained firecrackers, which were allegedly being transported without any documents and without sufficient safety measures. Therefore, the entire consignment was seized.
3. Petitioner as the holder of an Explosive Licence bearing No.13/2011/LE5 and permitted to store 50Kgs of manufactured fireworks and 400 Kgs of Chinese Crackers, alleged that out of the total quantity of 7,000 Kgs seized by the Police, he is entitled to possess firecrackers covered by Annexures A4 and A5 bills, which Crl.MC No.5008 of 2024 3 are supported by the E-Way bill as well. Petitioner further alleged that, as per the E-Way bill and the invoices, he is entitled to possess 446.140Kgs of firecrackers from, out of the afore mentioned total quantity and hence he approached the Judicial First Class Magistrate-1, Chittur, in CMP No.1782/2024 seeking release of the firecrackers. However, the learned Magistrate dismissed the said application by order dated 10.05.2024, stating that petitioner has licence only to possess 300 Kgs while the firecrackers claimed by the petitioner is upto a quantity of 446.140 Kgs.
4. The learned Public Prosecutor upon instructions submitted that, subsequent to the impugned order, it was identified that the explosives seized on 06.04.2024 belonged to 17 persons and that already the learned Magistrate has directed the articles to be released to five persons, according to their invoices from out of the seized firecrackers. The prosecutor further submitted that, as per the information available with the investigating officer, the quantity of seized materials belonging to the petitioner is 165.84 Kgs.
Crl.MC No.5008 of 20244
5. I have heard Sri. K R Vinod, the learned counsel for the petitioner and Sri. Sreeja V, the learned Public Prosecutor.
6. It is evident from Annexure A1 that the petitioner is in possession of a valid licence for the sale of 50 Kgs of manufactured fireworks and 400 Kgs of Chinese crackers or sparklers. Thus the total quantity entitled to be possessed and sold by the petitioner is 450 Kgs.
7. The quantity purchased by the petitioner as per the invoices Annexures A4 and A5, totals up to 446.5 Kgs and he claims the right to possess the firecrackers seized on 06.04.2024, to the extent covered by the invoices and E-Way bill. Since, petitioner's licence entitles him to possess 450 Kgs of firecrackers, the claim has a legal backing. The learned Magistrate went wrong in denying the claim for custody of the firecrackes as they are perishable commodities.
8. Hence, I am of the view that the petitioner's application for release of the firecrackers ought to be allowed. However, since there is a dispute on the quantity claimed by the petitioner and the quantity stated by the investigating officer, it is necessary Crl.MC No.5008 of 2024 5 to impose conditions.
9. In the result, Annexure A6 order dated 10.05.2024 in CMP No.178/2024 on the files of the Judicial First Class Magistrate-1, Chittur is hereby set aside and the firecrackers belonging to the petitioners covered by valid legal documents shall be released to the petitioner on the following conditions:
(i) The petitioner shall execute a bond for Rs.50,000/-
(Rupees fifty thousand only) two solvent sureties to the satisfaction of the jurisdictional Magistrate.
(ii) The petitioner shall produce the original of the invoices and the E-Way bill, if not already produced before the investigating officer and the quantity covered by the E-Way bill and the invoices in favour of the petitioner alone shall be released, subject to the maximum limit stipulated in the license.
(iii) The petitioner shall submit photographs of the firecrackers that are claimed by him, before it is released to the petitioner.
(iv) If in case, the materials are later found to be liable Crl.MC No.5008 of 2024 6 for confiscation, the bond executed by the petitioner can be utilized for payment of the said amount to the Government.
(v) The firecrackers shall be removed after taking all precautionary measures.
With the above directions, this Crl. MC is disposed of.
Sd/-
BECHU KURIAN THOMAS JUDGE AJ Crl.MC No.5008 of 2024 7 APPENDIX OF CRL.MC 5008/2024 PETITIONER ANNEXURES ANNEXURE A1 THE COPY OF THE EXPLOSIVE LICENSE ISSUED IN FAVOUR OF THE PETITIONER DATED 27.09.2021 ANNEXURE A2 THE COMMUNICATION OF THE DISTRICT COLLECTOR, ERNAKULAM DATED 11.04.2024 ANNEXURE A3 THE COPY OF THE F.I.R. IN CRIME NO.305/2024 OF PUDUNAGARAM POLICE STATION DATED 06.04.2024 ANNEXURE A4 THE BILL ISSUED BY SRI JOTHIS SPARKLERS FACTORY DATED 05.04.2024 ANNEXURE A5 THE BILL ISSUED BY LEO PYROTCH, PATTAKULAM DATED 05.04.2024 ANNEXURE A6 THE COPY OF THE ORDER IN C.M.P.NO.1782/2024 IN CRIME NO.305/2024 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NO.I, CHITTUR DATED 10.05.2024 TRUE COPY