IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 CRL.MC.NO. 4877 OF 2010() --------------------------------------- (CRIME NO.2523 OF 2010 OF KARUNAGAPALLY POLICE STATION) PETITIONER(S): ACCUSED --------------------------------------- S.MATHESWARAN, S/O.SELLAPPAN, RESIDING AT NO.34, GOUNDER STREET, POTTANAM POST, NAMAKKAL, TAMIL NADU, REP. BY P/A.HOLDER J.CHARLES LOBO, 4/377B, VELOPAOYHOUSE, CHITHRAPUZHA, KOCHI REFINERY ROAD, IRIMPANAM POST, ERNAKULAM DISTRICT. BY ADV. SRI.V.KRISHNA MENON RESPONDENT(S): -------------------------- STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, KARUNAGAPALLY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2011 ALONG WITH CRMC NO. 4939 OF 2010 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. Nos.4877, 4939, 4944, 4977 and 4978 of 2010 -------------------------------------- Dated this the 21st day of January, 2011. ORDER Owners of the respective lorries on which compressed gas was being transported on the relevant day (November 19, 2010) are the petitioners in these petitions filed under Section 482 of the Code of Criminal Procedure (for short, “the Code”). Prosecution case is that on the said day at different times the Karunagappally/Kottiyam Police checked the said vehicles and found that the vehicles were carrying compressed gas but, there was no second driver/cleaner (as the case may be) in the said vehicles at the relevant time as mandated by Rule 81(9) of the Explosives Rules, 1983 (for short, “the Rules”) which is made punishable under Section 9B of the Explosives Act (for short, “the Act”). Thereon the Station House Officers of the Police Stations concerned registered Annexure-B, FIRs against owners and drivers of the said vehicles and the safety officers for alleged violation of Rule 81(9) of the Rules and commission of offence under Section 9B of the Act. Annexure-B, FIR in the respective cases are called in question in these proceedings. Learned counsel for petitioners (owners of the vehicles) contend that Annexure-B, FIRs in these proceedings are misconceived in that the officers concerned have registered the cases based on a non-existent Rule. Further contention is that as seen from Crl.MC Nos.4877,4939, 4944, 4977 and 4978/2010 2 Annexure-A, licence issued to the respective owners (petitioners), it is not the Explosives Rules which applied to transportation of compressed gas but, it is Rule 42 of the Static and Mobile Pressure Vessels (Unfired) Rules, 1981. 2. I have heard learned counsel for petitioners and the learned Public Prosecutor. Learned Public Prosecutor submitted that assuming the argument advanced by the petitioners to be correct, the matter is at the stage of investigation and it is open to the Investigating Agency to ascertain what exactly is the offence if any committed notwithstanding the nature of offence mentioned in Annexure-B, FIRs and hence interference at this stage is no warranted. 3. It is seen from Annexure-B, FIRs appended to the respective petitions that the provision alleged to be violated is Rule 81(9) of the Rules, its penalizing provision being Section 9B of the Act. Rule 81(9) of the Rules ofcourse says that “a road van while transporting explosives shall always be attended to by at least one able-bodied person ( in addition to the driver) who is capable of looking after the vehicle”. It is accordingly that the Police Officer concerned who checked the vehicles stated in the FIR that there was no second driver/cleaner in the respective vehicle. Annexure-B, FIR in Crl.M.C.Nos.4877 of 2010, 4939 of 2010 and 4944 of 2010 state that there was Crl.MC Nos.4877,4939, 4944, 4977 and 4978/2010 3 no second driver while in Annexure-B, FIR in Crl.M.C.Nos.4977 of 2010 and 4978 of 2010, it is stated that there was no spare driver or cleaner, at the time of checking. 4. It is seen that it is in supersession of the Rules (of 1983) that the Central Government has framed Explosives Rules, 2008 (for short, “the Rules, 2008”). Learned counsel for petitioners, referring to Rule 67 of the Rules, 2008 pointed out that there is no provision akin to Rule 81(9) of the Rules (of 1983) so that, apart from the driver the vehicle was required to carry another able bodied person as well. It is also pointed out that there is no case for the respondent that the vehicles belonging to the petitioners were not a 'compressor mounted motor truck' in which case the provision applicable is Rule 63(1) of the Rules, 2008 and hence the proviso to the said provision also cannot have any application. Learned Public Prosecutor submitted that the question whether the vehicles were compressor mounted motor truck is a matter which requires investigation though, nothing about that is mentioned in Annexure-B, FIRs. 5. Presently, I am only concerned with the question whether any offence under Rule 81(9) of the Rules (of 1983) read with Section 9B of the Act is made out. As stated, officers concerned have proceeded on the assumption that the Rules (of 1983) remain in force even as on the day of the alleged incident and there is violation of the said Rules (of 1983) which obviously Crl.MC Nos.4877,4939, 4944, 4977 and 4978/2010 4 cannot stand since the Rules (of 1983) has been superseded by the Explosives Rules, 2008. Hence, there could be no violation of Rule 81(9) of the Rules (of 1983) as on the date of alleged incident and consequently no penalty as prescribed under Section 9B of the Act is attracted. To that extent, Annexure-B, FIRs in these cases cannot stand. 6. But, I am not going in these proceedings into the question whether any other provision of the Act or the Rule in force has been violated on the materials before the Investigating Officers which is a matter which that officer has to consider in accordance with the factual situation and the law governing the matter. 7. Petitioners in these cases are owners of the respective vehicles. The driver and safety officer of petitioners are also implicated in the cases for the same offence as stated above. My finding that there is no violation of Rule 81(9) of the Rules (of 1983) and consequently Section 9B of the Act would not apply as against petitioners should go for the benefit of accused Nos.1 and 3 as well notwithstanding that they have not come with any petition under Section 482 of the Code. Crl.MC Nos.4877,4939, 4944, 4977 and 4978/2010 5 Resultantly, these petitions are disposed of observing that no offence under Rule 81(9) of the Explosives Rules, 1983 read with Section 9B of the Explosives Act is made out in these cases and to that extent Annexure-B, FIRs in these cases will stand quashed against the petitioners and other accused in Annexure-B, FIRs who are the drivers and safety officers of petitioners. But I make it clear that it is open to the Investigating Officer to look into the question whether on the materials on record any other offence either under the Explosives Rules, 2008, the Explosives Act or any other law for the time being in force is involved. THOMAS P.JOSEPH, Judge. cks