THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY FRIDAY THIS THE SEVENTH AUGUST TWO THOUSAND NINE CRL.R.C.No. 1322 OF 2009 Between: Md. Jabluddin. ...Petitioner A N D The State of A.P. Rep. by Public Prosecutor. ...Respondent THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CRL.R.C.No. 1322 OF 2009 ORDER This revision is directed against the order dated 3-8-2009 passed in M.C.No. 96 of 2009 on the file of the Tahsildar and Executive Magistrate, Mangalagiri. 2. This is second journey of the petitioner to this Court. Earlier he filed Crl.R.C.No.1060 of 2007 assailing the order dated 24-7-2007 passed in R.C.No.9 of 2007. This Court set aside the order and remanded the matter back to the Tahsildar Mangalagiri to take evidence as required under Section 138 of Cr.P.C. The relevant portion of the order reads as hereunder: "Under Section 138 of Cr.P.C. If the person against whom an order under Section 133 Cr.P.C. is made and appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. Admittedly, after notice, no evidence was recorded by the learned Magistrate. He has also not considered the explanation of the petitioner, and therefore, the impugned order is contrary to Section 138 of Cr.P.C. 'In the circumstances, the Criminal Revision Case is allowed and the order passed by the Tahsildar, Mangalagiri in R.C.No. 9/07-A, dated 24-7-2007 is set aside and the matter is remitted back to the Tahsildar, Mangalagiri to take evidence as required under Section 138 of Cr.P.C. and pass necessary orders". 3. The Executive Magistrate passed the order impugned in the present revision on 3-8-2009. The order passed by him reads as hereunder: "Whereas, it has been made to appear to me that you are carrying on, as owner of the trade i.e., M/s Bismilla Bone Mill situated at D.No.5- 502, adjoining by pass Road, NearMarkandeya 5 Kalyana Mandapam,Mangalagiri and doing Trade in crushing bones by storing bones in heaps in the premises and that the same is injurious to public health and their comfortby the reason that foul mell is emanating from the bone milland is spreading around1 km to the Bone Mill Area that the flies thickly surroundedthe bones are used to touch the near by dwellers and pedestarians andthat duringrainy season the severity of the smell nuisance is very high and a such the bad smell nuisance compels the public and pedestrians to resort to ill health time and again and thereby causing imminent danger andinjurious to the public health and their comfort. Further, you have also admitted on 16-11-2005 that the premises would be shifted within 3 years to a far away place to the public and that necessary precautions would be taken to avoid bad smell emanating from the bone millby sprinkling gamaxine, bleaching etc., But you have utterly failed to do so and thus, it is an established evidence that you are willfully evading to shift the bone mill to a far of place as was promised with a malafide intention to continue the business by giving deaf ear to the public health and their comfort. Further the Municipal Council, Mangalagiri Municipality has also resolved for removal of the bone mill as it is eamanating bad smell which is perilous to the public health. The Environmental En gineer, A.P. Pollution Control Board, Guntur who inspected the Bone Mill has also opined that bad smell is generating fromthe bone mill and sought to take immediate action. Whereas, I have satisfied with the information and keeping in view the public interest at large andtheir health and comfort, I, D.V. Subba Rao Executive Magistrate and Tahsildar,Mangalagiri do hereby direct and require you to remove the foul smell nuisance 5 ( i.e. Remove thebones in heaps and machinery) within 7 days or to appear within 2 days from the date of receipt of the order before the undersigned in his chambers and to show cause why this order should not be enforced". 4. When the revision came up for admision, with the consent of the parties the revision itself is taken for final disposal at the stage of admission. 5. Heard learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the Respondent/State. 6. Learned counsel for the petitioner submits that the respondent without considering the explanation submitted by the petitioner is proposing to give effect to the order impugned in this revision, which is opposed to the provisions of the Section138 of the Criminal Procedure Code. 7. It is evident from the order extracted supra the petitioner has two options, firstly he can closed the premises within seven days and secondly, he can appear before the Executive Magistrate and submit his explanation. 8. Learned counsel appeairng for the petitioner submits that the petitioner submitted explanation on 9-7-2009 for the notice dated 6-7- 2009 issued under Sectin 133 of Cr.P.C. A copy of explanation submitted by the petitioner has been placed on record. It is apparent that the Executive Magistrate after issuing show cause notice has not considered the explanation submitted by the petitioner and proceeded to pass order impugned in the revision. In that view ofthe matter, this revision is disposed of at the admission stage, directing the Executive Magistrate to consider the 5 explanation submitted by the petitioner on 9-7-2009 and pass appropriate orders in accordance with the provisions of Section 138 of Cr.P.C. ______________________________ Justice B. Seshasayana Reddy 7th August, 2009. KM THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CRL.R.C1322 OF 2009 7th August, 2009.