IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH MARCH 2010 / 28TH PHALGUNA 1931 Crl.MC.No. 643 of 2010() ----------------------------------- CMP.234/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT, THALASSERY CRIME NO.85/2010 OF THALASSERY POLICE STATION. .................... PETITIONER/OWNER OF THE ARTICLES SEIZED ---------------------------------------------------------------------- JYOTHIKUMAR K.K., S/O. LATE KUMARAN, PROPRIETOR, SREE LAKSHMI CHEMICALS, K.A.K.COMPLEX, VADAKKANCHERRY P.O., PALAKKAD DISTRICT. BY ADV. MR.T.A.SHAJI RESPONDENT/COMPLAINANT --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (REPRESENTING THE STATION HOUSE OFFICER, THALASSERY POLICE STATION). BY PUBLIC PROSECUTOR MR.I.B. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.643 of 2010 -------------------------- ORDER Pickup Van KL-49/6717, along with Strontium Nitrate, Ammonium Nitrate, Charcoal Powder, Aluminium Powder, Drums and Salt Petre, was seized in Crime No.85/2010 of Thalassery Police Station, registered under Section 9B(2) of Explosives Act. Petitioner filed C.M.P.No.234/2010 under Section 451 of Code of Criminal Procedure for interim custody. By Annexure-A Order, learned Magistrate granted interim custody of the Pickup van and refused to grant interim custody of the articles seized from the Pickup van. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A order to the extent of rejecting the claim for interim custody of the articles seized from the Pickup van. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. CRMC 643/10 2 3. Learned counsel appearing for the petitioner submitted that none of the substances seized from the Pickup van are explosives, coming under the ambit of Explosives Act and they would come only under Explosive Substances Act. But, no licence is necessary to possess them and in such circumstances, learned Magistrate was not justified in rejecting the interim custody sought for. Learned counsel pointed out that Annexure-F communication, received from Deputy Chief Controller of Explosives for Joint Chief Controller of Explosives, South Circle, Chennai, establishes that possession or transportation of Aluminium Powder, Strontium Nitrate, Salt Petre or Potassium Nitrate, Charcoal Powder and Ammonium Nitrate or Chloride, shown as Item Nos.1, 6, 13, 17 and 19 in Annexure-F, do not attract the provisions of licensing under Explosives Rules and Annexure-E communication, received from Chief Controller of Explosives, Nagpur, establishes that Ammonium CRMC 643/10 3 Nitrate per se is not an explosive and does not require any licence under the Explosives Act or Explosive Substances Act at present and therefore, petitioner is entitled to get those articles which are obtained under Annexures-B series bills (five invoices) and in such circumstances, petitioner is to be granted interim custody. Learned counsel also pointed out that Annexure-D Certificate of Registration was obtained by the petitioner to deal with Aluminium Powder, Aluminium Chips, Aluminium Alloy, Barium Nitrate, Copper Sulphate and Dextrin Powder, to run the business by name Sreelakshmi Chemicals, Vadakkenchery. 4. Explosive is defined under clause (d) of Section 4 of Explosives Act. It reads: Explosive means gunpowder, nitroglycerine, nitroglycol, gun cotton, di-nitro-toluene, tri-nitro- toluene, picric acid, di-nitro-phenol, tri-nitro- resorcinol (styphnic acid), cyclo-trimethylene-tri- nitramine, penta-erythritol-tetranitrate, tetryl, nitro- guanidine, lead azide, lead styphynate, fulminate of mercury or any other metal, diazo-di-nitro-phenol, coloured fires or any other substance whether a CRMC 643/10 4 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. 5. As per the definition also, none of the articles seized from the Pickup van are explosives. Explosive substances Act does not provide that possession of an explosive substance is an offence. 6. Under Section 3 of Explosive Substances Act, any person who unlawfully and maliciously causes, by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property, is liable for punishment or any person who unlawfully and maliciously causes, by any such category of explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property, is liable for punishment. CRMC 643/10 5 7. Under Section 4 of Explosive Substances Act, any person who unlawfully and maliciously does any act with intent to cause, by an explosive substance or special category explosive substance or conspires to cause by an explosive substance or special category explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property or makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property is liable for punishment. 8. Similarly, Section 5 of Explosive Substances Act provides that any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance so as to give rise to a reasonable CRMC 643/10 6 suspicion that he is not making it or does not have it in his possession or under his control for a lawful object is liable for punishment. 9. When petitioner is running a business in sale of chemicals, necessary for preparing fireworks and Annexures-E and F establish that no licence is necessary to possess or transport the said articles, either under the Explosives Act or under Explosive Substances Act or Explosives Rules, learned Magistrate was not justified in not granting interim custody of the articles seized from the Pickup van. Petition is allowed. Annexure-A order to the extent of rejecting the claim for interim custody of the articles seized from the Pickup van is quashed. Judicial First Class Magistrate, Chalakudy is directed to grant interim custody of all the articles as sought for in C.M.P.No.234/2010, imposing sufficient conditions. 19th March, 2010 (M.Sasidharan Nambiar, Judge) tkv