A.A. Azad vs The Sub Inspector of Police and Others

V. Ramkumar, J.—Petitioner who is the sole accused in Crime No. 2322/2009 of Central Police Station, Ernakulam for an offence punishable u/s 9B(1)(b) of the Explosives Act, 1884 is the owner in possession of two shops bearing C.C. Nos. 4/5146 and 40/5147 at Kovilvattom Road, Ernakulam. He claims to be the holder of two explosive licenses issued by the 3rd Respondent, Addl. District Magistrate, Ernakulam.

The case of the Petitioner can be summarised as follows:

Explosive Rules, 1983 has been superseded by the Explosive Rules, 2008 as per which a person can sell at a time not exceeding 100 kilograms of manufactured fireworks of Class 7, division 2 , sub-division 2 and 500 kigms of Chinese crackers or sparklers under Form LE-5. The above crime has been registered for allegedly possessing an additional quantity of 22 kgs. of crackers in his shop on 24-10-2009 which is after the coming into force of the Explosive Rules, 2008 as per which a person can possess 100 Kgms of crackers and fire works for own use without a license and for sale of sparklers not exceeding 100 Kgs. Hence, the Petitioner was entitled to possess 200 kgms of sparklers and crackers without any license. When the market value of the fireworks and sparklers was Rs. 17,74,912, the Sub Inspector of Police (K.V. Benney -impleaded in his personal capacity as R7) has sold in auction 385 kgms. of fireworks and 690 kgms of Chinese crackers for a meagre amount of Rs. 22,000/- and this was effected with ulterior motives. The Petitioner therefore, prays for a direction to R4, City Police Commissioner , Cochin and the Director General of Police, Thiruvananthapuram (R5) to take appropriate action against the first Respondent, Sub Inspector of Police, Central Police Station, Ernakulam for the foul play committed by him while auctioning the articles from his shop and a direction to the J.F.C.M.II, Ernakulam not to frame charge against the Petitioner since as on 24-10-2009 the Petitioner has not committed any offence under the provisions of the Explosive Rules, 2008.

After hearing both sides and considering the rival contentions, I am of the view that Ext.P12 representation should be directed to be disposed of by the 4th Respondent after giving the Petitioner a personal hearing. In case the learned Magistrate has taken cognizance of the offence, the Petitioner is entitled to be heard before a charge is framed against the Petitioner. Accordingly, this Writ Petition is disposed of as follows:

i) The 4th Respondent, City Police Commissioner shall consider and dispose of Ext.P12 representation after giving the Petitioner an opportunity of being heard, expeditiously and at any rate within two months of receipt of a copy of this judgment.

ii) In case, the learned Magistrate has taken cognizance of the offence, the Petitioner will be entitled to plead for a discharge in absentia by filing a petition before the Magistrate who shall not insist on the personal appearance of the Petitioner for the disposal of the discharge application.

This Writ Petition is disposed of as above.