NOUFAL v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 18[TH] DAY OF JANUARY 2023 / 28TH POUSHA, 1944** ## **BAIL APPL. NO. 80 OF 2023** ## **PETITIONER/S:** **NOUFAL AGED 44 YEARS S/O.MOIDU, THOTTIKANDI HOUSE, MUKKOM, ALLI.P.O., KUMARANALLUR, KOZHIKODE., PIN - 673602** **BY ADV M.REVIKRISHNAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **PP: NIMA JACOB** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.80 of 2023 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A. No.80 of 2023 .................................................................** Dated this the 18[th] day of January, 2023 ## **ORDER** This is an application for anticipatory bail. 2. Petitioner is arrayed as the sole accused in Crime No.5 of 2023 of Mukkom Police Station, Kozhikode District registered alleging commission of offences punishable under Section 9(B)(1)(b) of the Explosives Act, 1884 and under Section 3(b) of Explosive Substances Act, 1908. 3. The crux of the allegation is that on 01.01.2023, at about 12.00 a.m. the Sub Inspector of Police, Mukkom Police Station and his party got reliable information that explosive substances were kept illegally at a place called ‘Muringapurai’, ‘Parathodu’ and using the same, crushing of rocks have been carried out. It is the case of the prosecution that on inspecting the place, the Police party found that the accused who is the owner of the property had allegedly carried out the above activity in order to unlawfully enrich himself. The prosecution would further say that on search at the place 100 no nal explosive wires and few iron rods were found at the scene. It is also alleged that at the scene, about 200 pits were found to have been digged. Thus the BA No.80 of 2023 3 petitioner has committed the abovesaid offences. 4. Petitioner submits that he has been falsely implicated in the above-said crime. He is a registered B-Class Government Contractor. He is a person having clean antecedents. He is the owner of an item of property having an extent of more than 3 acres at the area in question. Primarily, the same is a rubber plantation and at the front portion of the said property, having road frontage, after cutting and removing certain rubber trees, about 30 cents of land was cleared from cultivation and was made suitable for construction. Petitioner sought for site approval and building permit from the Panchayat in the aforementioned extent of land and the same was allowed by the Panchayat. Pursuant thereto the petitioner applied before the Mining & Geology Department, Kozhikode for removal of ordinary sand from the property in the course of excavation for the purpose of construction. The same was permitted and vide order dated 12.10.2022, the Mining & Geology Department, Kozhikode granted permission to remove ordinary sand and for the said purpose transit passes totalling 601 in number were allotted. Another order was issued by the Mining & Geology Department, Kozhikode allowing transit of 820 cubic meter of rock which will be obtained on carrying out the excavation for the purpose of construction in the land. Not admitting the allegation at all for a moment, it is submitted that the pits which were found at the BA No.80 of 2023 4 scene by the Police party were digged in order to have the rocks crushed using chemical, which does not come within the category of explosive or explosive substance. The documents produced as Annexures 3 to 5 would vouch for the case of the petitioner that the entire exercise was being carried out in a lawful and legal manner. It is also submitted that the offence under Section 9(B)(1)(b) of the Explosives Act, 1884 alleged in the instant case against the petitioner provides for a maximum punishment which may extent to two years or with fine which may extent to Rs.3,000/- or both. The Act being a special enactment going by the schedule appended to the Code of Criminal Procedure, the offence has to be reckoned and construed as bailable. The other Section of offence alleged is Section 3(b) of the Explosive Substances Act, 1908. A cursory reading of the provision would show that the Section penalizes the act of causing an explosion likely to endanger life or property. The Section starts with the prefix _“Any person who unlawfully and maliciously causes by_ _………….._ _(b) Any special category explosive substance an explosion of the nature likely to endanger life or to cause serious injury to the property shall, whether the injury to the person or property has been actually caused or not, be punished with death or rigorous imprisonment for life and shall also_ BA No.80 of 2023 5 ## _be liable for fine.”_ A reading of the Section would make it clear that the punishment provided therein is severe and the same at any rate is not intended to be pressed into service in the facts presented wherein the owner of an item of property having obtained requisite permits from the authorities concerned is in the process of constructing a commercial building. It is also submitted that the definition of special category explosive substance provided under Section 2(b) of the Act does not take in the explosives allegedly found at the scene by the policy party in the instant case. The allegation of the prosecution in the instant case is that the accused allegedly indulged in illegal crushing of rocks using explosives in order to unlawfully enrich himself. Accepting the allegation for argument sake, not admitting, the offence that would at best be attracted against the petitioner is under Section 9(B)(1)(b) of the Explosives Act which prohibits possession or use of explosive without license. The said offence as stated above is bailable. The Explosive Substances Act does not at all contemplate a situation of a person in possession of an explosive substance under any circumstance. Evidently, the enactment is not meant for curbing illegal quarrying etc., whereas the object and purport is to ensure national safety etc. which loadable object is indicative of the severe punishment provided for infraction of the Sections under the Act. Therefore the BA No.80 of 2023 6 provisions of the Explosive Substances Act much less Section 3(b) have no application in the facts and circumstances of the instant case. Petitioner further submits that he has no criminal antecedents. Petitioner submits that in a similar circumstance, this Court has granted anticipatory bail in B.A.No. 427 of 2021. 5. The learned Public Prosecutor opposed the application for bail. Even though the petitioner has procured a building permit and also a permit from the geologist for the removal of ordinary sand, the petitioner does not have an explosive license or any permit to keep explosives or to do blasting. The allegation against the petitioner is that the petitioner has carried out illegal explosion. It is further submitted that the petitioner has no other criminal antecedents. 6. The petitioner’s specific case is that he has not committed the abovesaid offences and that Annexures 2 to 5 documents would clearly show that the petitioner has obtained various licences including a transit permit to remove the rock. A similar issue was considered in B.A. No. 427 of 2021 and the petitioner therein was granted bail. Considering the facts and circumstances of the case and the nature of the allegations, I am inclined to grant anticipatory bail to the petitioner granting a limited custody for the purpose of investigation. In the result, the application is allowed. The petitioner shall surrender before the Investigating Officer in Crime No.5 of 2023 BA No.80 of 2023 7 of Mukkom Police Station, Kozhikode District on 23.01.2023 and shall make himself available for interrogation on that day or on any other day/days between 9.00 a.m. and 6.00 p.m. as directed by the investigating officer. The petitioner shall co-operate with the investigation. In the event of the arrest of the petitioner in Crime No.5 of 2023 of Mukkom Police Station, Kozhikode District, he shall be produced before the jurisdictional court on the very same day and shall be released on bail subject to the following conditions. (i) The petitioner shall execute a bond for a sum of Rs.50,000/(Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the Jurisdictional court. (ii) He shall appear before the investigating officer in Crime No.5 of 2023 of Mukkom Police Station, Kozhikode District as when required by the investigating officer. (iii) He shall not attempt to influence the defacto complainant or interfere with the investigation or to influence or intimidate any witness in Crime No.5 of 2023 of Mukkom Police Station, Kozhikode District. (iv) He shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.5 of 2023 of Mukkom Police Station, Kozhikode District may file an application before the jurisdictional Court, for BA No.80 of 2023 8 cancellation of bail. It is made clear that it is within the power of the police to investigate the matter and if necessary to effect recoveries on the information if any given by the petitioner even when the petitioner is on bail as per the judgment of the Apex Court in **Sushila Aggarwal and others v. State (NCT of Delhi) and another (2020 (1) KHC 663).** Sd/- **VIJU ABRAHAM JUDGE** cks