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2021 DIGILAW 327 (GUJ)

Hetalbhai Girishbhai Sutaria v. State of Gujarat

2021-04-16

A.Y.KOGJE

body2021
ORDER : 1. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered as C.R. No.I11191065200923 of 2020 with NAROL POLICE STATION, DISTRICT AHMEDABAD, for the offence punishable under Sections 304, 308, 284, 285, 286, 436, 427, 337, 338, 114 of the Indian Penal Code and under Section 7, 8, 9, 15 and 16 of the Environment (Protection) Act. 2. Learned Advocate appearing on behalf of the applicant submits that considering the nature of offence, the applicant may be enlarged on regular bail by imposing suitable conditions. 3. Learned Advocate for the applicant submitted that the incident pertains to a chemical blast resulting into fire and collapse of a building structure causing death of 13 number of people and serious to simple injuries to 9 number of people. 4. Learned Advocate for the applicant submitted that the investigation is concluded and chargesheet is filed. Therefore, all the evidence on which the prosecution is relying upon is now with the Investigating Agency, therefore, now there is no scope of any interference with the investigation and the applicant shall be enlarged on regular bail. 5. It is submitted that the trial is likely to be prolonged particularly considering the present day scenario, as well as the fact that the 123 witnesses are cited in the chargesheet. The incident as aforementioned can be termed as an accident and no negligence and deliberate act, can be attributed to the applicant, so as to attract the Sections304, 308 and other relevant Sections, for which the applicant is chargesheeted. 6. It is submitted that the applicant is merely a tenant in the premises and has entered into the premises on the basis of the rent agreement and a cause of accident is mainly the collapse of the structure for which the land lord is to be held responsible and not the applicant. Even after the chargesheet, there is no definite conclusion that the incident of collapse of the structure was on account of the blast which took place in the factory premises of the applicant which attributed to the poor construction of the structure by the land lord. The Process involved for the manufacturing of the product by the applicant does not involve any complex machinery. It is only the cold process mixing of various raw materials /chemicals. The Process involved for the manufacturing of the product by the applicant does not involve any complex machinery. It is only the cold process mixing of various raw materials /chemicals. It is also submitted that the chemicals which are used for the purpose of manufacturing the product, do not require any license for holding and storage more particularly the quantity of such chemicals which were stored by the applicant, were far below the threshold quantity specified under the Manufacture, Storage And Import Of Hazardous Chemical Rules, 1989. 7. It is submitted that the applicant did not have even a team of employee that the entire manufacturing has undertaken by only person being employee of the applicant since last several years and had sufficient experience to undertake the process. Unfortunately, that employee has also expired in the incident. 8. It is also, submitted that considering the quantity of manufacturing of the product of MEKP (Methyl Ethyl Ketone Peroxide), no license for manufacturing is required. The only requirement is registration with the Authority about the applicant doing some business and his registration for the purpose of GST, VAT and MSME and other Insurance requirement. It is submitted that the applicant had been in the business of manufacturing of MEKP (Methyl Ethyl Ketone Peroxide) since the last 20 years and therefore, during the 20 years, no such accident has taken place and therefore, there is no question of negligence on the part of the applicant to attract the provisions of IPC. 9. It is submitted that the Local Authority like the Municipal Corporation, Industrial Branch is required to carry out periodical visit for the safety aspect and therefore so far as the applicant has never been issued with any Notice or warning with regard to the safety measures by any of the Authorities. Therefore, also, the applicant cannot be treated to have been negligent. 10.It is submitted that by filing of the chargesheet, the investigation has already invoked Sections 284, 285, 286 of the IPC, in which the aforesaid, there is no question of therefore attracting the Section304 of IPC as well. Therefore, considering the maximum punishment that can be imposed for the offences under Sections284, 285 and 286 of the IPC, the case of the applicant deserves consideration. Therefore, considering the maximum punishment that can be imposed for the offences under Sections284, 285 and 286 of the IPC, the case of the applicant deserves consideration. 11.Learned Advocate for the applicant has also drawn attention to the relevant schedules of the Manufacture, Storage And Import Of Hazardous Chemical Rules, 1989 to contend that the schedule specifies the threshold quantity of MEKP to be of 5 t with concentration of more than 60% to attract the provisions of the Manufacture, Storage And Import Of Hazardous Chemical Rules, 1989. 12.Learned Advocate for the applicant also relied upon the judgment of the Hon’ble Apex Court in the case of Keshub Mahindra v/s State of M.P. reported in (1996) 6 SCC 129 . 13.On the other hand, the learned Additional Public Prosecutor appearing for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned Additional Public Prosecutor also submitted that offence is of very serious nature, where 13 number of people have been died, and 9 number of people have been seriously injured. It is submitted that the applicant will be squarely responsible for the offence and the incident cannot be termed to be accident. It is submitted that an illegal structure set up without any prior permission / sanction of the Local Body or the Industrial Authority. The construction was fully covered from all the sides, had no ventilation at all. Therefore, it created very hazardous situation for manufacturing activity involving Hazardous chemicals. The applicant claimed to be in the business for 20 years, to have sufficient knowledge regarding consequences. Moreover, knowledge that the act of the applicant is so eminently danger that in all probability, which resulted in such bodily injury, likely to cause death from the fact that the applicant had not installed any safety measures or basic fire safety system. 14.It is submitted that the FSL report indicates that the chemical used for the purpose of manufacturing the product MEKP (Methyl Ethyl Ketone Peroxide) of having the capacity of route of vast explosion depending upon the temperature of the surrounding environment. With this definite conclusion, the applicant cannot escape the criminal liability of criminal negligent. 15.It is also submitted that previously also there was a complaint against the applicant of an accident to the factory premises where the applicant was operating from other premises. With this definite conclusion, the applicant cannot escape the criminal liability of criminal negligent. 15.It is also submitted that previously also there was a complaint against the applicant of an accident to the factory premises where the applicant was operating from other premises. 16.Having considered the rival submissions of the parties and having perused the documents on record, it appears that offence appears to have taken place, where manufacturing activity is taking place in the said premises the adjoining godowns. Huge explosion took place on account of the chemical process being undertaken in the premises of the godown of the applicant, resulting into the spread fire and collapse of the structure of the godown occupied by the applicant as well as neighboring structures, resulting the death of 13 number of persons and serious to simple injury to 9 number of persons. 17.The applicant was engaged in the manufacturing of MEKP (Methyl Ethyl Ketone Peroxide), which is a raw material to produce Fiber Reinforced Polymer (FRP) by mixing other chemicals namly Hydrogen Peroxide (HP), Methyl Ethyl Ketone (MEK), Dimethyl Phthalate (DMP) and Diethylene Glycol (DEG) in a cold process. 18.After upon the conclusion of the Investigation, chargesheet has been field, wherein the applicant is now facing the charge of Offence under Section(s) 304, 308, 284, 285, 286, 436, 427, 337, 338, 114 of I.P.C. against accused persons stated in column 1, where an incident of a blast and fire occurred at about eleven o' clock in the morning on 04/11/2020 at godown no.12, Revabhai Estate, Piplaj. The place where the incident took place was possessed by accused no.(1) Hetalbhai Girishbhai Sutaria, the owner of Sahil Enterprise on rental basis as a godown for storage of chemical. The owner of place, accused no.(2) Pradipbhai alias Butabhai Revabhai Bharwad had given the place to Hetalbhai as a godown on rental basis for his financial benefits. On this agricultural land, Pradipbhai alias Butabhai Revabhai Bharward has constructed about twenty godowns known as Revabhai Estate without obtaining any permission of using the land for nonagricultural or industrial purpose from the Mamlatdar or the Collector and rented the godowns to different units for industrial storage as well as commercial purposes for financial benefits. He has not received any kind of permission from the concerned department of Ahmedabad Municipal Corporation. He has not received any kind of permission from the concerned department of Ahmedabad Municipal Corporation. Further, he has not taken any permission from the Fire department of AMC which is mandatory for the hazardous and inflammable industrial units. Neither he ensured any fire extinguishing equipments at his godowns. 19.Accused Nanubhai Ghelabhai Bharwad has constructed fourteen godowns known as Nanubhai Estate on his agricultural land located at Narol, Piplaj without obtaining any kind of permission of using the land for nonagricultural or industrial purpose from the Mamlatdar or the Collector office. He has given these godowns on rental basis to different units for industrial storage and commercial usage for his financial benefits. Further, he has not received any permission from the Fire department of AMC for a godown named Kanika Fashion. Neither he has ensured fire extinguishing equipments at the godown given by him on rental basis. 20.Moreover, the accused Hetalbhai was carrying out activity to manufacture the chemical namley M.E.K.P. (Methyl Ethyl Ketone Peroxide) under the name of Sahil Enterprise in the rented godown at the Revabhai Estate of the accused Pradipbhai @ Butabhai Revabhai Bharwad, without any chemical license or government license despite knowing that the said chemical can cause dangerous blast and fire tragedy and for personal financial benefit, stored ready material of M.E.K.P. and other various chemical used for manufacturing the said chemical without following proper precautions at the place not ventilated properly and by taking unauthorizedly constructed place on rent, without placing any kind of safety equipments, without obtaining any kind of permission for fire from Ahmedabad Municipal Corporation and kept the said business continue. For the said chemical process, they hired deceased Mustufa Alubhai, Age 51 Years, who had no educational qualification or skill. Moreover, despite knowing that work was running in the godowns surrounding of the Sahil Enterprise with the highly inflammable clothes and large numbers of person were working therein and despite knowing that extreme fatality can be happened in case of accident, they stored chemical for personal monetary benefit and kept its manufacturing process continue. They continue to discharge the chemical which is discharged at the end of manufacturing process of chemical without obtaining permission from Gujarat Pollution Control Board causing chemical hazard to the human and animal lives and environment. They continue to discharge the chemical which is discharged at the end of manufacturing process of chemical without obtaining permission from Gujarat Pollution Control Board causing chemical hazard to the human and animal lives and environment. Earlier, the accused Hetal Sutaria was carrying out activity to manufacture M.E.K.P. Chemical under the name of Sahil Enterprise in the rented place at Popatkaka Estate situated at Piplaj and the incident of fire took place in the year 2016, but no fatality happened in the said incident and only humiliation was faced. In respect whereof, Janvajog Entry No.170/16 dated 23/11/2016 was made at Vatva Police Station. Thus, despite having prior knowledge and experience of extreme inflammability of the said chemical and that it can cause explosion if it is stored in huge stock and can cause fatality as well as humiliation, they kept manufacturing process of the said chemical continue for personal monetary benefit. 21.On examining the details regarding the chemical stock of the Sahil Enterprise, it has clearly appeared that the chemicals MEK, DEG, DMP and the chemical prepared from them viz. M.E.K.P. were found available in large quantity at the place of the incident. Further, as per the opinion of the FSL, Ahmedabad vide FSL Report No – FSL/TPN/20/C/574, dated 13/11/2020, due to the presence of the inflammable substances and the substances causing oxidation found in the sample seized for examination from the place of the incident, there is a possibility of blast and breaking out of fire because of the said chemicals in confined situation or in the situation of creating pressure or anomalous condition of temperature. Methyl Ethyl Ketone (inflammable substance) and Hydrogen Peroxide (Oxidizer) can be called as the constituents of a volatile substance of organic peroxide class, namely methyl ethyl ketone peroxide. The said substance is capable to react enormously with a blast at the room temperature, which may cause the incident of fire or blast. It has been stated so clearly. Methyl Ethyl Ketone (inflammable substance) and Hydrogen Peroxide (Oxidizer) can be called as the constituents of a volatile substance of organic peroxide class, namely methyl ethyl ketone peroxide. The said substance is capable to react enormously with a blast at the room temperature, which may cause the incident of fire or blast. It has been stated so clearly. In this manner, the incident of fire with a blast had taken place in the godown, since an unskilled person had been made to process the chemicals at a place with illegal construction without taking any precautions and following the prescribed rules and standards for ventilation, cooling, equipments of fire safety, equipments of industrial safety and chemical process handling and without preparing industrial accident response plan which is required to be in place for any unforeseen situations. Due to intensity of the said incident, the godown of the Kanika Fashion located adjacent to the Sahil Enterprise got collapsed and the fire spread in it and the worker working in the Kanika godown got buried under the debris of the same. 22.The FSL report dated 13-11-2020 tendered before the Court, has given opinion on the analysis, which is as under: “OPINION OF ANALYSIS: 1. Due to presence of inflammable substances and oxidizing agents in the samples, there is a possibility that the said chemicals can cause fire and explosion in confined space under adverse condition of shock, pressure or temperature. 2. Methyl ethyl ketone (inflammable substance) and hydrogen peroxide (oxidizing agent), found in the above samples can be components of volatile substance namely methyl ethyl ketone peroxide of carbonic peroxide class. The said substance is capable of causing massive reaction with explosion at a room temperature, which can result into event of fire and explosion.” 23. Prima facie the incident has happened purely on account of the chemical process being undertaken in the premises of the applicant, which does not appear to be conducive for the purpose of manufacturing activity especially, the activity of mixing of chemical to create the third product. The incident is result of the manufacturing activity and form of damage being attributed to such blast and the lack of machinery, fire safety and industrial safety equipment, is a deliberate criminal negligence on the part of the applicant. The incident is result of the manufacturing activity and form of damage being attributed to such blast and the lack of machinery, fire safety and industrial safety equipment, is a deliberate criminal negligence on the part of the applicant. One more aspect which needs consideration is that though the manufacturing activity involved mixing of chemicals, which are admittedly Hazardous chemicals living such activity of manufacturing which involved Hazardous chemicals on an unqualified employee would itself suggest of gross criminal negligence on the part of the applicant. Reliance placed upon the judgment in the case of Keshub Mahindra (supra). The Judgment placed on the point of framing of charge and ingredients required to be looked into while framing of the charge. The examination by the Apex Court was as to whether in given such Section304 PartII, is to be attracted or Section304(a) of the IPC is to be attracted. 24.In the present case, the exercise as to find out whether sufficient evidence is on record to prima facie justify the charge of Section304 and other relevant sections and threadbare examination of material, evidence and the application of appropriate Sections of IPC, is an exercise unwarranted. 25.On merits, the arguments on the part of the applicant for not attracting Section304 or at best Section304( a), which would require and on the part of the accused, which can be termed to be rash or negligent act. Requirement of Section 304 is the knowledge that the fact of mixing of Hazardous chemicals is so eminently dangerous that in all probability is likely to cause high level of explosion resulting into bodily injury likely to cause death and as a matter of fact, the incident has taken place and several persons have lost their lives and several persons have been seriously injured. Prima facie sufficient evidence is thereto substantiate the charge. 26.The arguments on the part of the applicant to the extent that once Sections284, 285, 286 of the IPC are invoked, then in that case, the applicant is not required to be charged with Section304. Framing of Section286, which is for the negligence conduct with respect to the explosive substance, is restricted only to mean the Tenant Act is rash or negligent to endanger human life or likely to cause hurt or injury to any other persons. Framing of Section286, which is for the negligence conduct with respect to the explosive substance, is restricted only to mean the Tenant Act is rash or negligent to endanger human life or likely to cause hurt or injury to any other persons. The requirement to attract Section is possibility of endangering the human life by the Act, which may lead to explosion involving the usage of explosive substance. Whereas, in the instant case, it is the use of the explosive substance leading the explosion, leading to damage to standing structures and vehicles and loss of several lives and serious injuries to others and such argument on the part of the applicant is not accepted. The Apex Court in case of Sushil Ansal v/s State Through CBI reported in 2014 (6) SCC 173 , held in para47,48,49, 50, as under: 47. Section304A of the IPC makes any act causing death by a rash or negligent act not amounting to culpable homicide, punishable with imprisonment of either description for a term which may extend to two years or with fine or with both. It reads: “304A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 48. The terms ‘rash’ or ‘negligent’ appearing in Section 304A extracted above have not been defined in the Code. Judicial pronouncements have all the same given a meaning which has been long accepted as the true purport of the two expressions appearing in the provisions. One of the earliest of these pronouncements was in Empress of India v. Idu Beg ILR (1881) 3 All 776, where Straight J. explained that in the case of a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences. A similar meaning was given to the term ‘rash’ by the High Court of Madras in In Re: Nidamarti Negaghushanam 7 Mad HCR 119, where the Court held that culpable rashness meant acting with the consciousness that a mischievous and illegal consequence may follow, but hoping that it will not. Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. These meanings given to the expression ‘rash’, have broadly met the approval of this Court also as is evident from a conspectus of decisions delivered from time to time, to which we shall presently advert. But before we do so, we may refer to the following passage from “A Textbook of Jurisprudence” by George Whitecross Paton reliance whereupon was placed by Mr. Jethmalani in support of his submission. Rashness according to Paton means “where the actor foresees possible consequences, but foolishly thinks they will not occur as a result of his act”. 49. In the case of ‘negligence’ the Courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection. (iii) What constitutes Negligence?: 50. The expression ‘negligence’ has also not been defined in the Penal Code, but, that has not deterred the Courts from giving what has been widely acknowledged as a reasonably acceptable meaning to the term. We may before referring to the judicial pronouncements on the subject refer to the dictionary meaning of the term ‘negligence’. 27.The Court has also perused the order of the Sessions Court dated 04-02-2021 passed in Criminal Misc. Application no.555 of 2021 and cogent reasons have been assigned while rejecting the application for regular bail of the applicant. We may before referring to the judicial pronouncements on the subject refer to the dictionary meaning of the term ‘negligence’. 27.The Court has also perused the order of the Sessions Court dated 04-02-2021 passed in Criminal Misc. Application no.555 of 2021 and cogent reasons have been assigned while rejecting the application for regular bail of the applicant. 28.In view of the aforesaid facts and circumstances, the application does not deserve consideration and no case is made out for the exercise of discretion in favour of the applicant for the grant of regular bail in connection with aforesaid C.R. Hence, the application is dismissed. Rule is discharged.