IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 Crl.MC.No. 50 of 2010 ------------------------------ (CRIME NO. 79/2009 OF MELUKAVU POLICE STATION, KOTTAYAM DIST.) ................ PETITIONER/ACCUSED NO.2: ------------------------------------------ CHAKOCHAN AGED 60 YEARS, MUNDANATTU HOUSE, KULATHIKANDAM P.O., MELUKAVU, KOTTAYAM DISTRICT. BY ADVS. MR.K.S.ARUN KUMAR, SMT. MAYA ANTHARJANAM. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.50 OF 2010 ------------------------------------------ Dated 18th January 2010 O R D E R Petitioner is the second accused in C.C.737/2009 on the file of Judicial First Class Magistrate, Erattupetta, taken cognizance for the offence under Section 9(B)(2)of Explosives Act and Section 4 read with Section 21 of Mines and Minerals (Development and Regulation) Act. Petition is filed under Section 482 of Code of Criminal Procedure, to quash Annexure-I final report and the cognizance taken as against the petitioner contending that by Annexure-II, petitioner remitted Rs.25,000/- for the purpose of compounding the offence evidenced by Annexure-III letter of the Geologist intimating the Crmc 50/10 2 investigating officer that the said offence was compounded on realisation of Rs.25,000/- and after compounding the offence on 11/6/2009, by submitting Annexure-IV report dated 9/7/2009, investigating officer is not competent to include the offence under Explosives Act and as the crime has already been compounded, the subsequent investigation, the final report and the cognizance taken are all vitiated and all of them are to be quashed. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel appearing for the petitioner is that it was on 11/6/2009 petitioner agreed to compound the offence which was permitted to be Crmc 50/10 3 compounded by the Geologist and as agreed Rs.25,000/- was deposited on the same day for compounding the offence and after accepting the amount and composition, investigating officer is not entitled to incorporate the offence under Explosives Act and therefore, investigation and cognizance taken are all illegal and are to be quashed. 4. Learned Public Prosecutor submitted that though offence for violation of the provisions of Kerala Minor Mineral Concessions Rules is compoundable under Section 60 A, an offence under Explosives Act is not compoundable and the mahazar prepared based on which case was registered shows that explosives were used for blasting rocks and in such circumstances, incorporation of the offence under Section Crmc 50/10 4 9B(2) of Explosives Act subsequently is not illegal as report of the Forensic Science Laboratory establishes that explosives were used for blasting rocks and therefore, offence would lie and hence there is no reason to quash the proceedings. 5. Offence alleged against the petitioner is under Mines and Minerals (Development and Regulation) Act (hereinafter referred to as M.M.D.R.Act) on the allegation that petitioner is permitted to mine his property by the first accused by blasting rocks using explosive substance and thereby committed the offence under M.M.D.R.Act for violation of the provisions of Minor Minerals Concession Rules. Rule 60 A enables compounding of an offence punishable under the Rule, either before or Crmc 50/10 5 after institution of the prosecution. If that be so, the Geologist who is the authorised officer under the Act, is definitely entitled to permit compounding of the offence under M.M.D.R.Act. Annexure-III communication sent by the Geologist to the investigating officer and Annexure-II receipt evidencing deposit of Rs.25,000/- establish that offence under M.M.D.R.Act has already been compounded. In such circumstances, investigating officer should not have submitted a final report for the offence under M.M.D.R.Act and in any case, cognizance taken by the learned Magistrate for the said offence can only be quashed. 6. Annexure-I final report itself shows that prosecution case is that there was no license to the accused to blast Crmc 50/10 6 rocks and first accused has taken on lease the property of the petitioner for using explosives to blast rocks and thereby committed the offence. Therefore, even as per the final report, there is no case that petitioner was either in possession of explosives or used the explosives for blasting. At best, it could be said that petitioner granted his property on lease to the first accused to enable him to blast rocks. That does not mean that he permitted first accused to blast rocks using explosives. Whoever in contravention of rules made under Section 5 of Explosive Substance Act, possesses, uses or imports any explosives, he cannot be prosecuted for the offence under Section 9(B)(2) of Explosive Substance Act. When there is no Crmc 50/10 7 material to prove that petitioner has been in possession of any explosives, even if petitioner is to be tried in the case, the chance of a successful prosecution is very bleak. In such circumstances, it is not in the interest of justice to continue the prosecution as against the petitioner. Petition is allowed. Cognizance of the offences taken under M.M.D.R.Act and Explosive Substance Act, as against the petitioner in C.C.737/2009 on the file of Judicial First Class Magistrate, Erattupetta is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.