Manafudeen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938** ## **Crl.MC.No. 4715 of 2013 ()** ## **---------------------------** ## **CRIME NO. 1457/2013 OF KADAKKAL POLICE STATION , KOLLAM** ## **PETITIONER(S)/ACCUSED:** **--------------------------------------** **MANAFUDEEN, AL-FATHIMA MANZIL, KURIODU P.O., NILAMEL, KOLLAM DISTRICT.** **BY ADVS. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA** ## **RESPONDENT(S)/STATE AND COMPALINANT:** **-----------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. SUB INSPECTOR OF POLICE, KADAKKAL POLICE STATION, KOLLAM.** **BY PUBLIC PROSECUTOR SRI.BABY THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 4715 of 2013 ()** ## **-----------------------------------** ## **APPENDIX** |**PETITIONER'S EXHIBITS**|**PETITIONER'S EXHIBITS**|| |---|---|---| |**-------------------------------------**||| |**ANNEXURE-A.**|**-**|**CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN**| |||**CRIME NO.1457/13 IN KADAKKAL POLICE STATION,**| |||**KOLLAM DISTRICT.**| |**ANNEXURE-B.**|**-**|**TRUE COPY OF THE CONSENT TO OPERATE VALID UPTO**| |||**30/6/2014 OBTAINED BY THE PETITIONER**| |**ANNEXURE-C.**|**-**|**TRUE COPY OF THE PERMISSION FOR QUARRYING ISSUED**| |||**BY THE REVENUE AUTHORITIES, KOLLAM.**| |**ANNEXURE-D.**|**-**|**TRUE COPY OF THE LICENCE DATED 20/2/2012 AND VALID**| |||**UP TO 31/3/2015**| |**ANNEXURE-E.**|**-**|**TRUE COPY OF THE AUTHORIZATION ISSUED BY THE 2ND**| |||**RESPONDENT**| |**ANNEXURE-F.**|**-**|**CERTIFIED COPY OF THE CHARGE SHEET SUBMITTED BY**| |||**THE 2ND RESPONDENT**| |**RESPONDENT(S)' EXHIBITS**||| |**----------------------------------------**||| |**NIL**||| **//True Copy//** ## **P.A. To Judge** **Bb** ## **C.R.** ## **RAJA VIJAYARAGHAVAN V, J. -------------------------------------------------------Crl.M.C.No.4715 of 2013 -------------------------------------------------------Dated this the 22[nd] day of March, 2016** ## **O R D E R** - 1.This petition is filed under S.482 of the Code of Criminal Procedure seeking to quash Annexure F charge sheet laid against the petitioner alleging offence punishable under S.9B(1) of The Explosives Act, 1884. - 2.The prosecution allegation is that, on 07.08.2013, the petitioner was found in possession of 25 bundles of Safety Fuses and 100 ordinary Detonators kept in the store room of the premises owned by the petitioner at Thonipoika. Under the premise that the petitioner was in possession of the above explosives without a valid licence or permit, investigation was conducted and charge was laid before the jurisdictional Magistrate. - 3.I have heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor. Crl.M.C.No.4715 of 2013 : 2 : 4.The learned counsel appearing for the petitioner would submit that the petitioner is running a quarrying unit under the name and style as “Al-Fathima Metal Crusher Unit” at Anchal. Annexure B is the consent to operate issued by the Kerala State Pollution Control Board to the petitioner for the purpose of running a Granite Rock quarrying unit. The said permit, according to the learned counsel, is valid from 17.10.2011 to 31.12.2013. The learned counsel also relies on Annexure B consent variation order, as per which, the validity of the licence has been extended till 30.06.2014. Relying on Annexure C certificate issued by the Revenue Authorities, it is submitted that the petitioner was in possession of a valid permit on 07.08.2013 as well , which is the date on which the premises was inspected by the Sub Inspector of Police. Annexure D is the licence issued to the petitioner by the Controller of Explosives on 15.02.2012 and it is clear from Annexure Crl.M.C.No.4715 of 2013 : 3 : D that the same is valid till 31.3.2015. In short, the contention of the learned counsel is that, on the date of inspection ie., on 07.08.2013, the petitioner was in possession of a valid Explosives licence as well as permit from all the authorities concerned and in view of the above, the registration of Annexure A crime on 07.08.2013 on the basis of the allegation that the petitioner was operating quarry without a proper licence cannot be sustained under law. It is further submitted that, in view of the above, this Court will be justified in quashing the criminal proceeding as the continuance of proceedings would be nothing but an abuse of process of court. 5.The learned Public prosecutor would vehemently oppose the contentions of the learned counsel. But it was fairly submitted, based on instructions, that investigation revealed that the petitioner was having a licence to operate the quarry and was also armed with the licences Crl.M.C.No.4715 of 2013 : 4 : and permits produced along with the petition. 6.Annexure F is the final report laid against the petitioner by the second respondent. It reveals that the petitioner is accused of having committed offence punishable under S.9B(1) of The Explosives Act, 1884. S.9B of the Explosives Act reads as follows: _**9B:Punishment for certain offences** :- (1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules-_ _(a) manufacturers, imports or exports any explosive shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both;_ _(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and_ _(c) in any other case, with fine which may extend to one thousand rupees._ _XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXX_ ## 7.Annexures B to E reveals that the petitioner was operating the granite quarry after obtaining licence and Crl.M.C.No.4715 of 2013 : 5 : consent from all the authorities concerned. Annexure D is the licence in Form LE-3 which reveals that the licence granted to the petitioner is valid for use of Nitrate Mixture, Safety Fuse, Electric Detonators and Ordinary Detonators. As per the said licence, the petitioner is entitled have in his possession Safety Fuse of a length of 2000 Mtrs and 2500 Nos of Ordinary Detonators. In view of the above fact, it cannot be said that the petitioner has contravened either S.9B(1) of the Explosives Act, 1884 or the Explosives Rules, 2008. The prosecution records also reveal that the explosives were stored in a concrete shelf inside the store and the prosecution has no case that the items were stored in contravention with the terms of the licence. 8.In **D.P. Gulati, Manager Accounts, M/s Jetking Infotrain V State of Uttar Pradesh and Another** **[AIR 2015 SC 3760 ; 2015 (1) KLD 869],** the Apex Court had occasion to lay down the object and scope of Crl.M.C.No.4715 of 2013 : 6 : ## exercise of powers under section 482 of the Code to ## prevent abuse of process of law as follows: _“7. We have carefully considered the rival submissions made before us. From bare perusal of S.482 of the Code, it is clear that the object of exercise of power under the Section is to prevent abuse of process of law, and to secure ends of justice. In Rajiv Thapar and Others v. Madan Lai Kapoor, 2013 KHC 4066 : 2013 (3) SCC 330 : 2013 (1) KHC SN 39 : 2013 (1) KLD 439 : 2013 (1) SCALE 665 : 2013 CriLJ 1272 : 2013 (3) SCC (Cri) 158 : 2013 (2) Cal LT 48, this Court has enumerated the steps required to be followed before invoking inherent jurisdiction by the High Court under S.482 of the Code as under:_ _"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under S.482 CrPC:_ _1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?_ _2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?_ _3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution / complainant; and / or the material is such that it cannot be justifiably refuted by the prosecution / complainant?_ _4. Step four: whether proceeding with the trial would result in an abuse of process of the Court, and would not serve_ Crl.M.C.No.4715 of 2013 : 7 : _the ends of justice?_ _5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of: power vested in it under S.482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."_ 9. In the case on hand there are no reasons to suspect the genuineness of the permits, licences and consent produced by the petitioner. The learned public prosecutor on instructions does not refute the authenticity or genuineness of the records produced. On the other hand it is submitted that they are current and valid. If those admitted records are placed reliance upon, it would clearly rule out the assertions of the 2[nd] respondent that the petitioner had committed an offence under section 9B (1) of the Explosives Act or that he had violated any provisions of the rules framed thereunder. In other words the materials produced are sufficient to reject and overrule the factual assertions Crl.M.C.No.4715 of 2013 : 8 : contained in the charge. If that be the case the proceeding against the petitioner pending before the trial court would be nothing but an abuse of process of the Court. All that the frivolous prosecution would ultimately achieve is waste valuable judicial hours and nothing more. 10. In view of the above, this court is of the view that the continuance of proceedings against the petitioners in pursuance to registration of Crime No.1457 of 2013 of Kadakkal Police Station are liable to be quashed. I do so. The Criminal Miscellaneous Case is allowed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE.** Bb _[True copy]_ _P.A to Judge_