IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 Crl.MC.No. 489 of 2011() ------------------------ PETITIONERS/ACCUSED: ---------------------- C.H.NOORUDEEN, S/O.C.H.USMAN, KM.CIX/38A (9) PRESTIGE CENTRE, PRESTIGE JUNCTION, KASARAGOD TALUK, KASARGODE MUNCIPALITY, KASARAGOD DIST. BY ADV. SRI.R.S.KALKURA RESPONDENT/COMPLAINANT -------------------------- SUB INSEPCTOR OF POLICE, KASARAGOD POLICE STATION, KASARAGOD THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 . PUBLIC PROSECUTOR:ADV SRI K J MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.489 of 2011 --------------------------------------- Dated this 17th day of March, 2011 ORDER Petitioner is accused in Crime No.727 of 2008 of Kasaragod Police Station and C.C.No.519 of 2010 of the Court of learned Chief Judicial Magistrate, Kasaragod. Annexure-A3, FIR was registered on 17.10.2008 under Sec.102 of the Code of Criminal Procedure stating that on search of shop of the petitioner on 17.10.2008 at about 2p.m, explosives were found unauthorisedly kept in the said shop. The second accused who is the brother of petitioner was present in the shop at that time. After investigation police submitted Annexure-A6, final report alleging that petitioner and the second accused by violating conditions of license issued to the petitioner committed offence punishable under Sec.9(B(1)(b) of the Explosives Act, 1884 (for short, "the Act”). Petitioner/first accused seeks to quash proceeding against him contending that even if the entire allegations in Annexure-A6, final report are accepted, no offence is made out since petitioner was duly licensed to possess fire works of the quantity stated in the license. I have heard learned counsel for petitioner and the learned Public Prosecutor. According to learned Public Crl.M.C.No.489 of 2011 -: 2 :- Prosecutor, there is violation of conditions of license as revealed from Annexure-A5, report of chemical examination. 2. In Annexure-A6, final report what is stated is that petitioner and the second accused possessed explosives containing Pottasium Chlorate which is an admixture of Potassium, Aluminium, Sulphate, Chlorate and Nitrate, thereby violated conditions of license issued to the petitioner and committed the offence. Sec.9B of the Act deals with punishment for offences and subsec.1(b) deals with possession, use, sale or transportation of any explosive. The allegation is that petitioner and the second accused possessed explosives in violation of the conditions of license issued to the petitioner. but, except the statement in Annexure-A6, final report that the explosive substance contained admixture of Potassium Chlorate it is not stated which condition of the license is violated. Learned Public Prosecutor has invited my attention to Annexure-A5, report of chemical examination. It is revealed that the explosive (according to the petitioner, triangular shaped-crackers) were sent to the laboratory in two packets. It is seen from Annexure-A5 that items 1 and 2 contained Potassium, Aluminium, Sulphur, Chloride,, Crl.M.C.No.489 of 2011 -: 3 :- Chlorate and Nitrate. The allegation now made is that explosives contained admixture of these chemicals (potassium chlorate, which is the admixture of Potassium, Aluminium, Sulphur, Chloride, Chlorate and Nitrate). Annexure-A1 is the license admittedly issued to the petitioner and which was in force during the time of inspection as well as revealed from the endorsement on Annexure-A1. The license empowered petitioner to possess and sell from the shop fire works not exceeding 50kg of class 7, division 2, sub division 2 and 400kgs of class 7, division 2, subdivision 1. In the Explosive Rules, 2008 (for short, "the Rules”) schedule I, Class 7 deals with fire works. Division 2 (deals with fires works). Subdivision 1 deals with low hazard fire works while subdivision 2 deals with high hazard fire works. Thus, going by the license, petitioner is entitled to possess high hazard fire works not exceeding 50kg. There is no case that petitioner has possessed fire works exceeding 50kgs. 3. The argument advanced by learned Public Prosecutor is that offence relates to possession of fire works in which Potassium Chlorate which is the admixture of Potassium, Aluminium, Suphur, Chlorate and Nitrate is involved. But that Crl.M.C.No.489 of 2011 -: 4 :- contention cannot be accepted since in Rules 2(24) of the Rules “fire works is defined as meaning low hazard explosive comprising of any composition or device manufactured with a view to produce coloured fire or flame, light effect, sound effect, smoke effect (coloured or natural) or combination of such effects and includes fog signals, fuses, rockets, shells percussion caps'. In the light of that definition, it is idle to contend that the explosive in the possession of petitioner contained admixture of chemicals referred to above. The definition of fire works takes in any composition. In view of that, I am inclined to think that the allegation that petitioner has violated the conditions of license is unsustainable and if that be so, the final report and cognizance taken thereon are liable to be quashed. 4. The second accused is made an accused as he was present in the shop at the time of seizure. I found that petitioner/first accused cannot be said to have violated conditions and terms of the license or any of the provisions of the Act or Rules. If that be so, final report against second accused also cannot be sustained. There is no reason why benefit of this order should not go to the second accused also. Crl.M.C.No.489 of 2011 -: 5 :- Resultantly this petition is allowed. Crime No.727 of 2008 of Kasaragod Police Station, cognizance taken thereon and proceeding against petitioner/first accused and the second accused in C.C.No.519 of 2010 of the Court of learned Chief Judicial Magistrate, Kasaragod are quashed. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge