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2019 DIGILAW 1006 (KER)

JAVID E. P. S/O. MOIDEEN v. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR

2019-11-27

R.NARAYANA PISHARADI

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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. 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 that, the 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. 12. There is also a contention raised by the petitioners that no sanction under Section 7 of the Act has been obtained. Section 7 of the Act provides that no court shall proceed to the trial of any person for an offence against the Act except with the consent of the District Magistrate. 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. Section 7 of the Act provides that no court shall proceed to the trial of any person for an offence against the Act except with the consent of the District Magistrate. 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. 13. Learned counsel for the petitioners would contend that, even if it is found that explosive substances were kept at a place not in accordance with the licence granted to the first petitioner, it would only amount to violation of the conditions of licence. This is a plea which the petitioners can raise at the stage of the proceedings under Sections 227/228 of the Code of Criminal Procedure in the trial court. 14. In the aforesaid circumstances, I find no sufficient ground to quash the proceedings against the petitioners by invoking the power of this Court under Section 482 Cr.P.C. 15. Consequently, the petition is dismissed. I make it clear that, if the petitioners file any application for discharge at the time of the trial of the case, the trial court shall consider such application and dispose of it on merits untrammelled by any of the observations made by this Court in this order.