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2019 Supreme(Ker) 1084
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
JAVID E.P. S/O. MOIDEEN & Ors. - PETITIONERS
Versus
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR - RESPONDENT
Crl.MC.No.6505 OF 2019(C)
Decided On : 27-11-2019
For the petitioners: SRI.SIRAJ KAROLY SRI.C.K.PREM RAJ
For the Respondent: SRI C S HRITHWIK -SR PP
Point of Law: Possession of explosive substance without license would attract the offences under Sections 4 and 5 of Explosive Substance Act, 1908
Headnote:
Criminal Procedure Code, 1973 – Explosive Substances Act, 1908 - Sections 4 and 5 – Quash of Criminal proceedings –Sanction for prosecution – Storing of Explosive substances - Licence – First accused had got permit for conducting quarrying operations and that he had also obtained licence to store explosive substances for that purpose – Held, Licence granted to the first petitioner to keep the explosive substances was at a place 800 meters away from the place from where the explosive substances were found
Facts of the Case: Explosive substances were stored in the quarry owned by the first and the second accused – Third accused engaged in drilling stone and the fourth accused in possession of fuse wires with detonators – Complaint was registered charge sheet was filed
Finding of the Court:
Section 7 of the Act does not require any sanction but only a consent for prosecution of a person for an offence under the Act. Such consent is required to be obtained only before the court proceeds to the trial of the case against the accused for an offence under the Act. Therefore, even if no consent has been obtained at present, as required under Section 7 of the Act, it is not a sufficient ground for quashing the proceedings against the petitioners
Result: Petition dismissed
ORDER
The petitioners are accused 1 to 4 in the case C.P No. 75/2019 on the file of the Court of the Judicial First Class Magistrate, Taliparamba.
2. The aforesaid case is based on Crime No. 582/2017 of Sreekandapuram Police Station registered under Sections 4 and 5 of the Explosive Substances Act, 1908 (hereinafter referred to as 'the Act').
3. The prosecution case is as follows: On 08.09.2017, the Sub Inspector of Sreekandapuram Police Station was conducting patrol duty with police party. He got reliable information that explosive substances were stored in the quarry owned by the first and the second accused. At about 16:00 hours, the police party reached the aforesaid place. Then they saw the third accused engaged in drilling stone and the fourth accused in possession of fuse wires with detonators. The police party conducted search of the premises. On the northern side of the quarry, they saw a sack which contained 380 gelatin sticks. They also found out a plastic barrel beneath the soil which contained explosive substances. The Sub Inspector seized the explosive substances and arrested the third and the fourth accused from the spot. He returned to the police station and registered Crime No. 582/2017 of the Sreekandapuram Police Station in the matter against the petitioners.
4. After completing the investigation, chargesheet was filed against the petitioners for the offences punishable under Sections 4 and 5 of the Act and the comittal proceedings are now pending before the Judicial First Class Magistrate, Taliparamba as C.P No. 75/2019.
5. This petition is filed under Section 482 Cr.P.C for quashing the proceedings against the petitioners in the case on the ground that the first accused had got permit for conducting quarrying operations and that he had also obtained licence to store explosive substances for that purpose.
6. Heard the learned counsel for the petitioners and the learned Public Prosecutor.
7. Learned counsel for the petitioners submitted that the first petitioner has got Annexure-7 quarrying permit and also Annexure-8 licence to keep explosive substances for the purpose of conducting quarry and therefore, there is absolutely no basis for filing chargesheet against the petitioners for the offences punishable under Sections 4 and 5 of the Act.
8. Section 4 of the Act provides the punishment for attempt to cause explosion, or for making or keeping explosive substances with intent to endanger life or property. Section 5 of the Act provides the punishment for making or possessing explosives substances under suspicious circumstances, that is, under circumstances giving rise to a reasonable suspicion that the person had such substances in his possession or under his control, not for a lawful object.
9. The case diary reveals that the quarrying permit issued to the first petitioner expired on 06.12.2016.
10. On the basis of Annexure-7 quarrying permit and Annexure-8 licence issued in the name of the first petitioner, the proceedings against the petitioners in the case cannot be quashed. The date of expiry of Annexure-7 permit is mentioned in it as 25.09.2017. However, it is also mentioned in Annexure-7 permit that the validity of the permit is restricted to 06.12.2016 and extension of validity of the permit could be given subject to any orders from the Supreme Court. The petitioner has got no case that he had got a valid permit beyond the period 06.12.2016. The occurrence in this case was on 08.09.2017.
11. Annexure-8 licence would show that the period of validity of that licence is upto 31.03.2021. However, as per Annexure-8 licence, the explosive substances of the nature and quantity mentioned therein can be stored only at the place mentioned therein, that is, two constructed type 'C' magazines as per specification 2 of Schedule VII of the Explosives Rules, 2008. In the instant case, the explosive substances were found in a sack and also in a plastic barrel which was hidden beneath the soil. Moreover, the case diary reveals t
