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GIVIN C. BOBAN & ANOTHER V/S STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR & OTHERS, decided on Friday, November 10, 2017.
[ In the High Court of Kerala, Crl.M.C. Nos. 3097 & 6009 of 2017. ] 10/11/2017
Judge(s) : K. ABRAHAM MAW
Advocate(s) : Kaleeswaram Raj, Varun C. Vijay, A. Aruna. N. Nagaresh, Assistant Solicitor General, Alex M. Thombra, Public Prosecutor.
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    1. The simple question that arises for consideration in these Crl.M.C.s filed under Section 482 Cr.P.C. is how to ascertain the weight of explosives for the purpose of the Explosives Act 1884 (for short “the Act”) and the Rules framed thereunder.2. The first petitioner is the son of the second petitioner. The former has been issued Annexure II Licence under Rule 99 of the Explosives Rules 2008 (for short “the Rules”) by which he has been authorized to “possess and sell from a shop any one time not exceeding 100 kilograms of manufactured fireworks of Class 7 Division 2 Sub Division 2 and 500 kilograms of Chinese crackers or sparkles”.3. The documents are referred to as they are marked in Crl.M.C. No. 3097 of 2017.4. On the allegation that in a search conducted by Dy.S.P. District Crime Branch Thrissur (Rural) on 10.04.2017 in the shop of the first petitioner the second petitioner was found to be in possession of 16 621.05 kg of explosives Crime No. 930 of 2017 of Kunnamkulam Police Station was registered for the offence under Section 9B(1)(b) of the Act. Annexure III is the search list prepared by the Dy.S.P. It is submitted that the cost of the seized articles is about Rs. 50 00 000/-. The explosives are now kept in the petitioners' shop and some rooms taken on rent by them and the rooms have been locked and sealed by the police. There is no dispute with regard to the articles seized by the police or their quantity.5. On 12.04.2017 Judicial First Class Magistrate Kunnamkulam sent Annexure VIII 'Official Memorandum' directing the Station House Officer Kunnamkulam to defuse the seized explosives.6. Crl.M.C. No. 3097/2017 has been filed for the following reliefs: (1) declare Annexure VIII 'Official Memorandum' of the learned magistrate illegal (2) quash Annexure VIII 'Official Memorandum' and all further proceedings against the second petitioner (3) direct the learned magistrate to return the explosives to the first petitioner and (4) direct the learned magistrate to auction the explosives and to permit the first petitioner to participate in the auction. Crl.M.C. No.6009/2017 has been filed to quash the proceedings as against the second petitioner in Crime No.930/2017 of Kunnamkulam Police Station.7. The submission of Sri Kaleeswaram Raj learned counsel for the petitioners is that it was not in accordance with the provisions in the Act and the Rules framed thereunder the weight of the seized explosives was ascertained by the police; the police took into consideration not only the weight of the explosives but the boxes receptacles cases etc. which contain them also; the weight of the explosives alone would be less than the permitted quantity. The argument advanced by him is that only the 'chemical compound or a mixture of substances' - a phrase used in Section 4(d) of the Act - contained in the seized crackers and sparkles should be taken into account. Another submission of the learned counsel is that there is no means to ascertain the weight of the explosives alone and so it is impossible to prosecute the petitioners. He also submits that if the explosives are defused and the court ultimately finds that no offence has been committed it will cause irreparable loss to the first petitioner.8. In Annexure I FIR the first petitioner is shown to have committed the offence under Section 9B(1)(b). The relevant portion of the Section is quoted below:“Punishment for certain offences.- (1) Whoever in contravention of rules made under section 5 or of the conditions of a license granted under the said rules-(a) Omitted(b) Possesses uses sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; ...”9. As noted above Annexure II licence was issued under Rule 99 of the Rules. The first petitioner has been authorized to possess and sell only 600 kg of explosives. The quantity he was found to be in possession was more than 16 600/- kg it is said. If the allegation is true he is liable to be punished under Section 9B(1)(b) of the Act.10. “Explosive” has been defined as follows in Section 4(d) of the Act:“explosive” means gunpowder nitroglycerine nitroglycol gun-cotton di-nitro-toluene tri-nitrotoluene picric acid di-nitro-phenol tri-nitroresorcinol (styphnic acid) cyclo-trimethylene-trinitramine penta-erythritol-tetranitrate tetryl nitro-guanidine lead azide lead styphynate fulminate of mercury or any other metal diazo-dinitro- phenol coloured fires or any other substance whether a single chemical compound or a mixture of substances whether solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and includes fog-signals fireworks fuses rockets percussion-caps detonators cartridges ammunition of all descriptions and every adaptation or preparation of an explosive as defined in this clause;”11. Rule 16 of the Rules provides that the weight of explosives when referred to in the Rules shall not include the weight of the packing box in which the explosives are packed. But there is a proviso to the Rule which runs thus:“Provided that in case of explosives of the Class 6 (Ammunition) or Class 7 (Fireworks) the weight shall be deemed to be the weight of the completed article inclusive of the case or contrivance in which the explosive is contained but shall not include the weight of the inner package and outer packing box.”The law which is relevant in this case is the proviso since the explosives the possession of which has been authorized by the Licence issued to the first petitioner and seized from him are of Class 7. The proviso creates a fiction. Under this deeming provision the weight of explosive is not only the weight of the completed article but also of the case or contrivance in which the explosive is contained.12. Sri Kaleeswaram Raj has brought to my notice the decision of a learned Single Judge of this Court in Kannur Fire Works Dealers Association & Others v. The Chief Controller of Explosives & Others [MANU/KE/1115/2016 - WP(C) No. 17239 of 2016] in support of his argument that it is impossible to ascertain the weight of the explosives. In that case the police seized crackers from the possession of the some of the petitioners. The allegation was that the quantity exceeded the permitted quantity. The argument advanced by the licensees is seen from paragraph 1 of the judgment which runs as follows:“...... The case of the petitioners in the writ petition is that the explosives seized from their premises were not weighed as provided for under Rule 16 of the Rules and if the same had been weighed in accordance with the said Rule there would not have been any occasion to effect seizure on the ground that they possessed excess quantity. The petitioners seek therefore a declaration that the seizure of fireworks and Chinese crackers effected from their premises is illegal and arbitrary. They also seek directions to the respondents concerned to weigh the fireworks and Chinese crackers seized from their possession in accordance with Rule 16 of the Rules and return the same to them if it is found that the explosives possessed by them are within the permissible quantity. Alternatively they also seek directions to the respondents to release the permissible quantity to them if it is found that they possessed excess quantity and sell the excess quantity to licence holders.”13. One of the respondents in the above mentioned Writ Petition was Deputy Chief Controller of Explosives who is the third respondent in these Crl.M.C.s. He had filed a statement in that Writ Petition the relevant portion of which is extracted below:“....... The manufacturing facilities and the infrastructure for weighment of such huge quantities of fireworks are not available in the State of Kerala. It is further stated in the said statement that after removal of inner/outer packages of the fireworks there is every possibility of spillage of fireworks composition from the packages and that spillage of fireworks composition cannot be avoided during weighment and is susceptible to friction/ impact which may lead to fire or explosion. It is further stated that on opening the packages the weighing of fireworks is not advisable on electrically operated weighing balance due to hazardous nature of the activity involved. It is also stated that if opened the said fireworks shall be destroyed by burning which would create environmental pollution and involves physical danger to the person associated in destruction of fireworks.”14. The learned Judge observed that it is evident from Rule 16 of the Rules that the weight of explosives referred to in the Rules does not include the weight of packing boxes in which the explosives are packed. He added: “In other words the quantity mentioned in the licences obtained by petitioners 2 to 4 can only be the quantity of the explosives without the weight of the packing boxes. As such only if it is found that the weight of the explosives seized from the possession of petitioners 2 to 4 without the boxes in which they were packed are in excess of the permissible quantity it can be said that the petitioners have violated the rules.” The learned Judge further observed that the petitioners were only attempting to take advantage of the inability of the officers concerned in weighing the quantity of explosives in accordance with Rule 16 of the Rules. It is on the basis of this observation; the learned counsel submits that it is impossible to ascertain the weight of the explosives seized by the police.15. The proviso to Rule 16 makes it clear that the weight of inner package and outer packing box shall be excluded from reckoning in determining the weight of explosives. Rule 14(1)(a) of the Rules becomes relevant in this context. It runs as follows:“(1) No person shall import export tender for transport cause to be transported possess or sell any explosive unless (a) It is packed in the manner laid down in Schedule II;” (The remaining part of the Rule is omitted)16. The term “inner package” appearing in the proviso to Rule 1 is defined in Part I of the Schedule II of the Rules. “Inner package” means a substantial case bag canister card board or other receptacle made and closed so as to prevent any explosive from escaping. But the term “outer packing box” appearing in the proviso to Rule 16 has not been defined. So it should be given its ordinary meaning. It is a box in which explosives are contained. The definition of “outer package” appearing in Part 1 Schedule II of Rules throws in light. It is defined as a box barrel case or cylinder of wood metal or corrugated boxes or other solid material of such strength construction and character as not to be broken or accidentally opened or to become defective or insecure or to allow an explosive to escape. The weight of explosives for the purpose of the proviso to Rule 16 is the weight of the 'completed article' inclusive of the case or contrivance in which the explosive is contained. Only the outer packing box and the inner package should be excluded. The inner package and outer package box are not part of completed articles. To put it differently the package which does not form integral part of a completed article alone shall be excluded and nothing which forms its integral part shall be excluded. To be more precise it is not the chemical compound or mixture of substances contained in the explosives alone that should be taken into consideration to determine the weight of the explosives. As specified in the proviso to Rule 16 the weight of the completed article is the weight of an explosive. Rule 14 read with Schedule II only clarifies it. It cannot be held that it is impossible to ascertain the weight of explosives. A different interpretation will result in absurdity and it should be excluded.17. I fully agree with the learned counsel that it was not in accordance with the provisions in the Rules the weight of the seized articles has been determined by the police. The weight shown in the search list includes the weight of the outer packing boxes and inner packages which should not be taken into consideration as provided in the proviso to Rule 16. I also agree with the learned counsel that if the explosives are defused it will result in huge loss in case the court finds that they were not liable to be seized because no offence has been made out.18. The next question is whether this Court can issue directions to the authorities concerned with regard to the manner in which the weight of the explosives shall be determined and how they should be disposed of. Both parties agree that the seized articles shall be sold in public auction among persons who hold licence under the Rules. To avoid failure of justice it is necessary to direct the investigating officer to ascertain the weight of the seized articles in accordance with Rules 14 and 16 and Schedule II of the Rules.19. The prayer of the second petitioner to quash the proceedings initiated by the filing of Annexure I FIR cannot be granted since he was found doing business in the shop at the relevant time.In the result this Crl.M.C.s are disposed of as follows:(i) The seized explosives shall be weighed by the investigating officer under the supervision and guidance of the third respondent Deputy Chief Controller of the Explosives or any officer authorized by him and in the presence of the Junior Superintendent attached to the office of the learned magistrate before whom the case is now pending.(ii) The correctness of the weight as ascertained above shall be certified by each of the above officers.(iii) The petitioners shall be issued seven days notice in writing before the explosives are weighed during which they have every right to be present.(iv) The seized articles shall be sold in public auction by the District Magistrate concerned among the holders of licence issued under the Rules and the sale proceeds shall be deposited in the court of the learned magistrate subject to the directions that may be issued by the trial court in the course of or at the end of the trial.(v) The process of determination of the weight of the seized explosives and their auction shall be completed within three months from today. This order shall not stand in the way of the petitioners' raising any contention they may take otherwise at the trial.