IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 Crl.Rev.Pet.No. 1694 of 2010() ------------------------------ (CRIME NO.222/2010 OF VALAPPATTANAM POLICE STATION) .................... REVN. PETITIONER: PETITIONER/ACCUSED --------------------------------------- PUSHPAJA.C.K,W/O.RAJAN THUNOLI, SREE HARI COTTAGE,C.P.III 733,CHIRAKKAL.P.O, KANNUR-11. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1694 of 2010 ------------------------------- Dated this the 7th day of June, 2010. O R D E R The sole accused in Crime No.222/10 of Valappattanam Police Station is the revision petitioner herein. 2. According to her, she is a valid license holder issued under the provisions of the Explosives Act, 1884. As per Annexure-III seizure mahazar, the police effected the seizure from the shop of the revision petitioner on the allegation that, she had kept and found in possession of explosive substance beyond the limit permitted to her, as per the license granted to her. Thus, the police registered the above crime. Pursuant to the above seizure, the same were reported in the Court of Judicial First Class Magistrate-II, Kannur. 3. In the meanwhile, the petitioner approached the court by filing a petition u/s.451 of Cr.P.C. for the interim custody of the articles seized by the police in the above case. After hearing the matter, the learned Magistrate came into a conclusion that the total weight of crackers, which was found in possession of Crl. R.P.No.1694 of 2010 2 the revision petitioner/accused is 850 kgs. Therefore according to the learned Magistrate, the petitioner was found in possession of the explosives in violation of the terms of the license. According to the learned Magistrate, the revision petitioner is failed to show that she is authorised to possess more than 450 kgs. of crackers. Therefore, aggrieved by the above order and finding, the revision petitioner approached this court. 4. I have heard the learned counsels for the revision petitioner as well as the public prosecutor and perused the documents produced. 5. The learned counsel for the revision petitioner submitted that, as evidenced by Annexure-III, the police weighed the explosives kept in the containers/boxes and if the weight of boxes are excluded, the total quantity of the explosives seized by the police will come within the permissive quantity, as per the license issued in favour of the revision petitioner. In support of the above contention, the learned counsel invited my attention to, S.9(1)(B) of the Explosives Act, 1884 and also proviso to Rule Crl. R.P.No.1694 of 2010 3 9, Rule 16, of the Explosives Rules, 2008 and Rule 24(3) proviso to Rule 77. On the basis of these rules, the learned counsel submitted that as far as the crackers are concerned, this rigor will not attract. 6. The learned Public Prosecutor submitted that, when the police weighed the crackers, which was recovered from the possession of the revision petitioner, the weight of the boxes were excluded and after the exclusion of the weight of the container/boxes, the total quantity will come about 850 kgs. As per the license issued to the revision petitioner, she is authorised to possess only 450 kgs. 7. Going by the impugned order, it is not discernible, whether the revision petitioner has taken all these contentions before the learned Magistrate and if it has already taken, I am of the view that it is improper on the Magistrate in, not considering her contention and arriving into such finding inadvertence to such contention. The learned counsel for the revision petitioner on the strength of the decision of the apex court in Sunderbhai Crl. R.P.No.1694 of 2010 4 Ambalal Desai Vs. State of Gujarat with C.M.Mudaliar Vs. State of Gujarat {AIR 2003 Supreme Court page 638} submitted that, after the seizure of the articles from the possession of the revision petitioner, the same is kept in the police station without proper care and therefore it was incumbent upon the court below to release the article in favour of the revision petitioner as an interim measure, otherwise the crackers will become useless. 8. Considering the rival pleadings and the contentions of the revision petitioner and the prosecution agency, I am of the view that a detail enquiry is warranted based upon which the learned Magistrate can come into a conclusion, as to whether the crackers recovered from the possession of the revision petitioner will exceed the permissible quantity or the same is within the limit. The learned counsel for the petitioner on the strength of a letter dated 7.3.2008 issued from the Petroleum and Explosives Safety Organisation, Govt. of India, addressed to M/S.Om Sakthi Fireworks Industries, Virudhunagar, submitted Crl. R.P.No.1694 of 2010 5 that the honourable apex court vide judgment dated 18.7.2005 in the case of Writ Petition (Civil No.72 of 1998) read with Civil appeal No.3735 of 2005 arising out of SLP (C) No.2185/2003 has directed that, PESO (formerly Department of Explosives) shall undertake necessary research activities & come out with the chemical formulae for each type or category or class of fire cracker specifying the proportion/composition as well as maximum permissible weight of every chemical used in the manufacture of fire crackers and it is further submitted that the apex court has issued a direction that, “Every manufacturer shall on the box of each firecracker mention details of its chemical contents and that it satisfies the requirement as laid down by PESO (formerly DOE). In case of a failure on the part of the manufacturer to mention the details or in cases where the contents of the box do not match the chemical formulae as stated on the box, the manufacturer may be held liable”. Thus according to the learned counsel, the weight indicated in the box is exclusive of the weight of the box/container. But in the case of Crl. R.P.No.1694 of 2010 6 Annexure-III, what stated is including the weight of the box. But in the impugned order it appears that, the learned Magistrate has not considered the above aspects and no evidence is seen taken in order to come into such a conclusion. 9. Considering the above facts and circumstances and the urgency of the matter, I am of the view that the matter can be remanded back to the trial court for its re-consideration based upon the evidence. In the result, this criminal revision petition is disposed of remanding the matter to the Court of Judicial First Class Magistrate - II, Kannur, with a direction to the learned Magistrate to consider the above contentions of the petitioner/claimant and the respondent/state and in order to consider the contentions and come into a conclusion as to whether the seized articles are within the permissive limit or not, if it is necessary, it is for the learned Magistrate to get a report from an expert officer of the competitive Department and inspection and weighing of the seized article shall be expedited and dispose the matter without Crl. R.P.No.1694 of 2010 7 delay at any rate within four months from the date of receipt of copy of this order. This criminal revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/