IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 Crl.MC.No. 3433 of 2011(B) -------------------------------------- PETITIONERS/ACCUSED 1 & 2 : --------------------------------------------- 1. VASANTHA KUMAR S., AGED 38 YEARS, S/O.SEENA, PROPRIETOR S.D.ENTERPRISES, SHIVAJI NAGAR, KARANDAKKAD, RESIDING AT S.P.NIVAS, MEEPUGIRI, A.R.CAMP ROAD, ARUNGOOR, RAMDAS NAGAR PO, KASARAGOD DISTRICT. 2. DINESH PRASAD S., S/O.SEENA, RESIDING AT S.P.NIVAS, MEEPUGIRI, A.R.CAMP ROAD, ARUNGOOR, RAMDAS NAGAR PO, KASARAGOD DISTRICT. BY ADVS. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON RESPONDENT/COMPLAINANT : --------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION, KASARAGOD, THROUGH PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/- Crl.MC.No. 3433 of 2011(B) APPENDIX PETITIONERS' ANNEXURES: ANNEXURE A1 COPY OF THE LICENCE BEARING NO.17/KAS ISSUED BY ADDL.DISTRICT MAGISTRATE KASARAGODE. ANNEXURE A2 COPY OF THE FIR NO.726/2008 OF KASARAGODE POLICE STATION. ANNEXURE A3 COPY OF THE SEARCH LIST OF PROPERTIES DATED 17/10/2008 SENT TO THE MAGISTRATE. ANNEXURE A4 COPY OF THE CHEMICAL ANALYSIS REPORT DATED 15/09/2009. ANNEXURE A5 COPY OF THE FINAL REPORT IN CRIME NO.726/2008 OF KASARAGODE POLICE STATION DATED 30/12/2009. ANNEXURE A6 COPY OF THE ORDER DATED 17/03/2011 IN CRIMINAL MC NO.489/2011 IN THE HIGH COURT OF KERALA. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.M.C.No.3433 of 2011 ---------------------------------------------------- Dated this the 15th day of November, 2011 Order The petitioners are the accused in Crime No.726 of 2008 on the file of Kasaragode Police Station which is now pending before the C.J.M.Court, Kasaragod as CC No.583 of 2010. The offence alleged against them is under Section 9B(1) of the Explosives Act, 1884. The first petitioner is the licensee. A2 is the salesman or employee of A1. Annexure A1 is the copy of the licence issued to the first petitioner. The charge against the first petitioner is that when his shop was inspected by the police officer, 50 kgs. of manufactured fireworks and 300 kgs. of chinese crackers were found in that shop. The samples were produced before the court and thereafter sent to the Chemical Examiner's Lab for chemical analysis. The report of chemical analysis is as follows: “The following radicals/ingredients were detected in the sample. Potassium, Aluminium, Sulphur, Chloride, Chlorate and Nitrate.” 2. The seizure mahazar shows the description of the Crl.M.C.3433/11 2 fireworks/items seized from that shop, namely, 8 packets containing 10 each of fireworks (padakkam), wrapped with gunny twines having green colour wrapper etc. There were total 80 such crackers and also 300 chinese crackers. As per the licence the first petitioner can possess chinese crackers upto 300 kgs. Hence, there was no excess quantity. The quantity of manufactured fireworks which the petitioner can possess is upto 50 kgs. which must fall in Class 7, Division 2, Sub Division 2. Besides the licences show that the petitioner can possess 2500 kgs. of Class 7, Division 2 and Sub Division 1. Anyway, that is not of much importance since even otherwise the quantity detected at the time of inspection is far less than 50 kgs. of manufactured fireworks. As per Class 7- 'Fireworks Class', the petitioner was entitled to possess Division 2 - firewoks. Manufactured fireworks is explained in Class 7 as any explosive of class 1, 2, 3, 4 or 6 and any fireworks composition when such explosive or composition is enclosed in any case or contrivance or other articles specially adapted, for the production of pyrotechnic effect for pyrotechnic signal or sound signals. Sub-rule (24) of Rule 2 of the Explosives Rules defines the term 'fireworks' as: Crl.M.C.3433/11 3 “ “fireworks” means high 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 fogsignals, fuses, rockets, shells, percussion caps.” It is mentioned in sub-clause(5) of Class 7: Sub-division 1 of Division 2 fireworks comprises low hazard fireworks which, in the opinion of Chief Controller are relatively innocuous in themselves and are not liable to explode violently or all at once, e.g., sparklers (Chinese crackers, serpents, etc.). It is mentioned in sub-clause (6) of Class 7: Sub-division 2 of Division 2 of fireworks comprises high hazard fireworks which, in the opinion of Chief Controller, present a special hazrd to a person, e.g., rockets, shells, maroons, wheels, barrages, fountains, illumination pieces, distress signals, pyrotechnic devices etc. Sub-Division 2 as mentioned in clause (3) of Class 7 makes it clear that it would take in any explosive of class 1, 2, 3, 4 or 6. In other words, it is an admixture of all nitrates, chlorates and Crl.M.C.3433/11 4 sulphates. The possession of 'fireworks' mentioned earlier is only within the permissible limit and covered by the licence Annexure A1. 3. The learned counsel for the petitioner submits that in an identical case, where such crackers were seized from the neighbouring shop owner, a case was registered by the very same police as Crime No.727 of Kasaragod Police Station. The case against the accused therein was quashed by this court as per Annexure A6 order. The only difference here is that the crackers herein are spherical in nature and was covered with green wrapper. In all other respects, the explosives contained in the 'crackers' had the very same components. Since the quantity possessed by the petitioner was less than permitted quantity, I find force in the submission made by the learned counsel for the petitioner that the offence charged against the petitioners is unsustainable. The second petitioner is only a salesman of accused No.1, the first petitioner herein. In the light of what is stated above, I find that to secure the ends of justice, the further proceedings in the aforesaid case has to be quashed. Hence, this Crl.M.C. is allowed. Further proceedings in CC No.583 of 2010 of Crl.M.C.3433/11 5 C.J.M.Court, Kasaragod is quashed. N.K.BALAKRISHNAN, JUDGE. srd Crl.M.C.3433/11 6