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K. Ramakrishnan, J.—Crl. M.C. No. 2956/2014 was filed by the 4th accused in C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, while Crl. M.C. No. 3140/2014 was filed by accused Nos. 1 to 3 in the same case, both for quashing the proceedings as against them under Section 482 of the Code of Criminal Procedure (hereinafter referred to as '' the Code'').
The common case of the petitioners in both these cases was that the 1st accused is having a property in R.Sy. No. 175/11 of Kottangal village and the third accused is the owner of the property in R.Sy. No. 175/3 of Kottangal village and 2nd and 4th accused are conducting quarrying operation in the properties belonging to accused 1 and 3 respectively independently. The case of the prosecution was that they were conducting quarrying operations in the properties in violation of the prohibitory order issued by the Tahsildar, who is the defacto complainant and thereby they have committed the offence punishable under Section 9(B)(1)(b) of the Explosives Act. Accused 1 and 3, who are petitioners 1 and 3 in Crl. M.C. No. 3140/2014, are the owners of the properties in R.Sy. Nos. 175/11 and 175/3 of Kottangal village respectively. The second petitioner in Crl. M.C. No. 3140/2014, who is the second accused, is conducting quarrying operation in the property belonging to the first accused after obtaining necessary licences and permits evidenced by Annexures-3 to 6 documents produced by him in that case. The 4th accused in the same case, who is the petitioner in Crl. M.C. No. 2956/2014, is conducting quarrying operation in the property of the third accused, who is the third petitioner in Crl. M.C. No. 3140/2014 after obtaining necessary licenses evidenced by Annexures-3 to 7 documents produced along with the petition filed by him. There is no dispute that they are having valid documents. Since the defacto complainant, Tahsildar, found that mining operations are being conducted in the properties in violation of the prohibitory order issued, he had sent Annexure-1(8) complaint to the Sub Inspector of Police, Perumpetty, on the basis of which, Annexure-1 First Information Report was registered as Crime No. 189/2011 of Perumpetty police station of Pathanamthitta district against the petitioners in both the cases arraying them as accused 1 to 4 alleging commission of the offence punishable under Section 9(B)(1)(b) of the Explosive Act. After investigation, Annexure-4 final report was filed against the petitioners in both the cases alleging commission of the above said offence, which was taken on file as C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla. Annexure-7 in Crl. M.C. No. 3140/2014 and Annexure-8 in Crl. M.C. No. 2956/2014 were produced by the petitioners in the respective cases to prove that prohibitory orders have been passed in respect of functioning of quarry in R.Sy. No. 175/1 of Block No. 32 of Kottangal village alone and such notice has been issued to one Aneesh Ismail. It was also alleged in both the petitions that they have not received any notice or order prohibiting quarrying in that resurvey number. Further it was alleged in the petition that the defacto complainant wanted to register a case only under the provisions of the Kerala Minor Mineral Concessions Rules alone and no offence under Section 9(B)(1)(b) of the Explosives Act was made out in the complaint. So, according to them, no offence under the above said section has been committed or made out and continuing to proceed with the case will amount to an abuse of process of court. So they have no other remedy except to approach this Court seeking the following reliefs:
Crl. M.C. No. 2956/2014:
For these and other grounds urged at the time of hearing this Hon''ble Court may be pleased to call for the records and quash Annexure-2 Final report in Crime No. 189/2011 of Perumpetty Police, which is now pending as C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, in the interest of justice.
Crl. M.C. No. 3140/2014:
For these and other grounds urged at the time of hearing this Hon''ble Court may be pleased to call for the records and quash Annexure-1 Final report in Crime No. 189/2011 of Perumpetty Police, which is now pending as C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, in the interest of justice.
The investigating officer has filed a statement stating that on the basis of the complaint received from the Tahsildar, Mallappally stating that defying the prohibitory order issued against the functioning of quarries in R.Sy. Nos. 173/3 and 173/11 of Block No. 32 of Kottangal village, the petitioners were conducting quarrying operations in the above property, Crime No. 189/2011 under Section 9(B)(1)(b) of the Explosives Act was registered against the petitioners in both the cases as accused 1 and 3 are the owners of the property and accused 2 and 4 are the persons who are conducting quarrying in the property. They were arrested and thereafter they were released on bail and final report was filed and it was taken on file as C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla. Since they apprehend that if they are convicted, their explosive licence will be cancelled, they approached this Court seeking quashing of the case and it is not a fit case for quashing the case invoking the power under Section 482 of the Code. So they prayed for dismissal of these petitions.
As directed by this Court regarding the prohibitory order issued in respect of the above property and as instructed by the office of the Advocate General, the Tahsildar, Mallappally issued a letter dated 21.7.2014 stating that there was no prohibitory order issued against functioning of quarry in Block No. 32 in R.Sy. No. 175/3 of Kottangal village, but as per the directions of this Court in W.P. (C). No. 5452/2010, the Village Officer had issued a prohibitory order against functioning of the quarry in Block No. 32 in R.Sy. No. 175/11 of Kottangal village and that letter was produced by the learned Public Prosecutor along with the memo.
Heard both sides.
The learned counsel for the petitioners in both the cases submitted that the defacto complainant had no case that the petitioners have violated any conditions of the explosive licence or quarrying licence issued. Further, there is nothing on record to show that any prohibitory orders in respect of Block No. 32 in R.Sy. Nos. 175/3 and 175/11 of Kottangal village of Mallappally taluk have been issued by any of the authorities under any law. In the absence of such evidence, the offence under Section 9(B)(1)(b) of the Explosives Act is not attracted. Further, as per the complaint, what was intended by the Tahsildar was to initiate proceedings under the Kerala Minor Mineral Concessions Rules and not for an offence under the Explosives Act. Even if the entire materials produced before the court is accepted, even then no offence is attracted. So the learned counsel submitted that it is a fit case where power under Section 482 of the Code can be invoked to quash the proceedings.
On the other hand, the learned Public Prosecutor submitted that it is a matter for evidence and it is not a case to be quashed by invoking the power under Section 482 of the Code. Further, the letter of the Tahsildar will go to show that there is prohibitory order against the functioning of quarry in Block No. 32 in R.Sy. No. 175/11 of Kottangal village of Mallappally taluk, that property belongs to the first accused, in which the second accused is conducting the unauthorised quarrying. So the entire case cannot be quashed.
It is an admitted fact that the property in R.Sy. No. 175/11 and 175/3 in Bock No. 32 of Kottangal village of Mallappally taluk belongs to accused 1 and 3 in C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, who are petitioners 1 and 3 in Crl. M.C. No. 3140/2013. It is also an admitted fact that the petitioner in Crl. M.C. No. 2956/2014 is conducting quarrying operation in the property belonging to the third accused and second petitioner in Crl. M.C. No. 3140/2014 is conducting quarrying operation in the property belongs to the first accused, who were shown as accused 2 and 4 respectively in the above case. It is also an admitted fact that on the basis of the complaint given by the Tahsildar, Mallappally, which was attached to Annexure-1 First Information Report, the above crime was registered. In the letter, it was only mentioned that stop memo has been issued against conducting quarrying operation in Block No. 32 in R.Sy. No. 175/11 to the second accused and against conducting of quarrying operation in the same Block number in R.Sy. No. 173/3 to the 4th accused and also to the respective owners namely accused 1 and 3 and against the same, they found extraction of granite metals alone from the property unauthorizedly, and thereby the petitioners have committed the offence under the Kerala Minor Mineral Concessions Rules and requested the Station House Officer, Perumpetty to register a case accordingly. But the police had registered the case not under the Kerala Minor and Mineral Concession Rules but under Section 9(B)(1)(b) of the Explosive Act.
Section 9(B) 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) manufactures, 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.
(2) whoever in contravention of a notification issued under section 6 manufactures, possesses or imports 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; and in the case of importation by water, the owner and master of the vessel or in the case of importation by air, the owner and the master of the aircraft, in which the explosive is imported shall, in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees.
(3) Whoever:-
(a) manufactures, sells, transports, imports, exports or possesses any explosive in contravention of the provisions of clause (a) of section 6A; or
(b) sells, delivers or despatches any explosive in contravention of the provisions of clause (b) of that section, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both; or
(c) in contravention of the provisions of section 8 fails to give notice of any accident shall be punishable,-
(i) with fine which may extend to five hundred rupees, or
(ii) if the accident is attended by loss of human life, with imprisonment for a term which may extend to three months or with fine or with both.]
In order to attract the offence under Section 9(B)(1)(b), it must be proved by the prosecution that the person against whom the case has been registered was in possession or uses or sells or transports any explosive in contravention of the Rules made under Section 5 or the conditions of the licence granted under the said Rules. They have no case that the persons who are conducting quarrying or persons who are using explosives for functioning of the quarry are not having any licence or permit to keep the explosive or they are in possession of any excess quantity of the same as well. Further, the prosecution also had no case that they are not having any licence to use the explosive as well. It is true that if there is any prohibitory order against the functioning of quarry in a particular place and in violation of the same anything is done, then it may amount to an offence under Section 9(B)(1)(b) of the Act as if there is any prohibitory order, they are not expected to use the explosive substance for the purpose of quarrying, which will amount to violation of the conditions of the licences.
In order to prove this fact, the prosecution must produce documents either before this Court or before the lower court along with the final report to show that there was such a prohibitory order and that prohibitory order was communicated to the persons concerned. In this case, it was specifically mentioned in the letter of the Tahsildar, Mallappally that there was no such prohibitory order issued against the functioning of quarry in Block No. 32 in R.Sy. No. 175/3 of Kottangal village of Mallappally taluk which belongs to the third accused in which the 4th accused is conducting the quarry. So, as far as accused 3 and 4 are concerned, there is no violation as alleged as well. So, under the circumstances, it cannot be said that they have committed any offence as alleged by the prosecution even on the basis of the admission made by the Tahsildar in his subsequent letter produced before this Court. So, no prosecution will lie against accused Nos. 3 and 4, who are the third petitioner in Crl. M.C. No. 3140/2014 and the petitioner in Crl. M.C. No. 2956/2014 and proceeding with the case against them will amount to an abuse of process of court and the case against them is liable to be quashed invoking the power under Section 482 of the Code.
As regards accused 1 and 2 are concerned, though it was mentioned in the letter and also in the complaint filed by the Tahsildar that there was a prohibitory order against functioning of quarry in Block No. 32 in R.Sy. No. 175/11 of Kottangal village, no such document has been produced either before this Court or produced before the investigating officer so as to enable him to produce the same before court below along with the final report. The main contention taken by the petitioners is that there was no such prohibitory order. In spite of that, no attempt was made on the part of the investigating officer or the Station House Officer of Perumpatty police station even to produce such an order before this Court as well and also they have no case that the order was intimated to petitioners 1 and 2 as well. Unless it is made known to them, it cannot be said that they were aware of such an order and in violation of that order they have committed any act. I have gone through the entire case diary file produced by the learned Public Prosecutor in this case. There is nothing produced to prove this fact. No documentary evidence has been produced regarding this aspect as well. None of the witnesses have seen the quarrying operation being done in the property using explosive either at the time when the letter was sent or even during the investigation. So, under the circumstances, it cannot be said that the prosecution was able to establish that accused 1 and 2 in the above case, who are petitioners 1 and 2 in Crl. M.C. No. 3140/2014 have also committed the offence alleged. So under the circumstances, this Court feels that without any material produced before this Court or before the lower court along with the final report, it cannot be said that the prosecution has proved violation of the prohibitory order which enables the police to register a case against accused 1 and 2 also alleging commission of the offence under Section 9(B)(1)(b) of the Explosives Act and proceeding with the case against them also will only amount to an abuse of process of court. So, under the circumstances, this Court feels that it is a fit case where the entire case against the petitioners in both the cases has to be quashed invoking the power under Section 482 of the Code as there is no material produced either before this Court or before the court below along with the final report to come to a conclusion that either of the accused have committed the offence alleged.
So, both the petitions are allowed and further proceedings in C.C. No. 621/2011(Crime No. 189/2011 of Perumpetty police station) pending before the Judicial First Class Magistrate Court, Thiruvalla as against accused 1 to 4, who are the petitioners in the above petitions is hereby quashed.
Office is directed to communicate this order to the concerned court immediately.
Crl. M.C. No. 2956/2014 was filed by the 4th accused in C.C. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, while Crl. M.C. No. 3140/2014 was filed by accused Nos. 1 to 3 in the same case, both for quashing the proceedings as against them under Section 482 of the Code of Criminal Procedure (hereinafter referred to as '' the Code'').
The common case of the petitioners in both these cases was that accused No. 1 is having a property in Re.Sy. No. 175/11 of Kottangal village and third accused was the owner of the property in Re. Sy. No. 175/3 of Kottangal village and accused Nos. 2 and 4 are conducting mining operations in the property belonging to accused 1 and 2 respectively independently.
The case of the prosecution was that they were conducting mining operations in the property in violation of the prohibitory order issued by the Tahsildar, who is the defacto complainant and thereby they have committed the offence punishable under Section 9(B)(1)(b) of the Explosive Act. According to petitioners 1 to 3, who are petitioners 1 to 3 in Crl. M.C. No. 3140/2014, are the owners of the properties in Re. Sy. Nos. 175/11 and 175/3 of Kottangal village respectively. Second petitioner in Crl. M.C. No. 3140/2014, who is the second accused was conducting mining operations in the property belonging to the first accused after obtaining necessary licences and permits evidenced by Annexures-3 to 6 documents produced by them in that case. The 4th accused in the same case, who is the petitioner in Crl. M.C. No. 2956/2014 was conducting mining operations in the property of the third accused, who is the third petitioner in Crl. M.C. No. 3140/2014 after obtaining necessary licenses as evidenced by Annexures-3 to 7 documents produced by him along with the petition filed by him. There is no dispute that they are not having valid documents. Since the defacto complainant, Tahsildar, found that mining operations are being conducted in the property in violation of the prohibitory order issued, he had sent Annexure- 1 (8) complaint to the Sub Inspector of Police, Perumpetty on the basis of which Annexure-1 First Information Report was registered as Crime No. 189/2011 of Perumpetty police station of Pathanamthitta district against the petitioners in both the cases arraying them as accused 1 to 4 alleging commission of the offences punishable under Section 9(B)(1)(b) of the Explosive Act. After investigation Annexure-4 final report was filed against the petitioners in both the cases alleging commission of the above said offence, which was taken on file as C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla. Annexure-7 in Crl. M.C. No. 3140/2014 and Annexure-8 in Crl. M.C. No. 2956/2014 were produced by the petitioners in the respective cases to prove that prohibitory orders have been passed in respect of functioning of quarry in Re. Sy. No. 175/11 of Block No. 32 of Kottangal village alone and such notice has been issued to one Aneesh Ismail and it was also alleged in both the petitions that they have not received any notice or order prohibiting quarrying in that resurvey number.//Further it was alleged in the petition that the registrar wanted to restrict a case only under the provisions of the Kerala Minor Mineral Concessions Rules alone and no offence under Section 9(B)(1)(b) of Explosive Act was made out in the complaint.//So according to them, no offence under the above said section has been committed or made out and continuing to proceed with the case will amount to an abuse of process of court. So they have no other option except to approach this Court seeking the following reliefs:
The investigating officer has filed a statement stating that on the basis of the complaint received from Tahsildar, Mallappally that defiling the prohibitory orders issued against the functioning of quarries in R.Sy. No. 173/3 and 11 of Block No. 32 of Kottangal village Crime No. 189/2011 under Sections 9(B)(1)(b) of Explosive Act was registered against the petitioner in both the cases as accused 1 and 3 are the owners of the property and accused 2 and 4 are the persons who are conducting quarrying in the property.//They were arrested and thereafter they were released on bail and final report was filed and it was taken on file as C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla. Since they apprehend that they were convicted, their explosive licence will be cancelled, they approached this Court seeking quashing of the case and it is not a fit case for quashing the case invoking the power under Section 482 of the Code. So they prayed for dismissal of these petitions.
As directed by this Court regarding the prohibitory order issued in respect of the above property and as instructed by the office of the Advocate General, the Tahsildar, Mallappally issued a letter dated 21.6.2014 stating that there was no prohibitory order issued against functioning of quarrying in Block No. 32 in Re. Sy. No. 175/3 of Kottangal village but as per the directions of this Court in W.P. (C). No. 5452/2010, the Village Officer had issued a prohibitory order against functioning of the quarry in Block No. 32 in Re. Sy. No. 175/11 of Kottangal village and that is produced by the learned Public Prosecutor along with the memo.
Heard both sides.
The learned counsel for the petitioners in both the cases submitted that the defacto complainant had no case that the petitioners have violated any conditions of the explosive licence or quarrying licence issued. Further, there is nothing on record to show that any prohibitory orders have been in respect of Block No. 32 in Re. Sy. No. 175/3 and 175/11 of Kottangal village of Mallappally taluk issued by any of the authorities under the Act. In the absence of such evidence, the proceedings under Section 9(B)(1)(b) of Explosive Act is not attracted. Further, as per the complaint, what was intended by the Tahsildar was to initiate proceedings under the Kerala Minor Mineral Concessions Rules and not for an offence under the Explosive Act. Even if the entire materials produced before the court is accepted, even then no offence is attracted. So he submitted that it is a fit case where power under Section 482 of the Code has to be invoked.
On the other hand, the learned Public Prosecutor submitted that it is a matter for evidence and it is not a case to be quashed by invoking the power under Section 482 of the Code. Further the letter of the Tahsildar go to show that there is prohibitory order against functioning of quarry in Block No. 32 in Re. Sy. No. 175/11 of Kottangal village of Mallappally taluk which property belongs to the first accused in which the second accused conducting the unauthorised quarrying. So the entire case can be quashed.
It is an admitted fact that the property in Re. Sy. No. 175/11 and 175/3 in Bock No. 32 of Kottangal village of Mallappally taluk belongs to accused 1 and 3 in C.C. No. 621/2011 on the file of the Judicial First Class Magistrate Court, Thiruvalla, who are petitioner Nos. 1 to 3 in Crl. M.C. No. 3140/2013. It is also an admitted fact that the petitioner in Crl. M.C. No. 2956/2014 was conducting quarrying operation in the property belonging to the third accused and second petitioner in Crl. M.C. No. 3140/2014 was conducting quarrying operation in the property belongs to the first accused, who were shown as accused 2 and 4 respectively in the above case. It is also an admitted fact that on the basis of the complaint given by the Tahsildar, Mallappally, which was attached to Annexure-1 First Information Report, that the above crime was registered. In the letter it was only mentioned that stop memo has been issued against conducting quarrying operation in Block No. 32 in Re. Sy. No. 175/11 to the second accused and against conducting of quarrying operation in the same Block number in R.Sy. No. 173/3 to 4th accused and also to the respective owners namely accused 1 and 3 and against the same, they found extraction of granite metals against the stop memo unauthorizedly and thereby they have committed the offence under the Kerala Minor Mineral Concessions Rules and requested the Station House Officer, Perumpetty to register a case accordingly. But the police had registered a case not under the Kerala Minor and Mineral Concessions Rules but under Section 9(B)(1)(b) of Explosive Act. Section 9(B) of Explosive Act reads as follows:
In order to attract the offence under Section 9(B)(1)(b) it must be proved by the prosecution that the person against whom the case has been registered was in possession or using or sells or transport any explosive in contravention of the Rules made under Rule 5 of the conditions of the licence granted under the said Rules. They have no case that the persons who are conducting quarrying or persons who are using the explosives for functioning the quarry is not having any licence or permit to keep the explosives or they are in possession of any excess quantity of the same as well. Further, the prosecution also had no case that they are not having licence to use the explosives as well. It is true that if there is any prohibitory order against the functioning of quarrying in a particular place and in violation of the same anything is done, then it may amount to an offence under Section 9(B)(1)(b) of the Act as if there is no prohibitory order they are not expected to use the explosive substance for the purpose of quarrying which will amount violation of the conditions of the policy. So, in order to prove this fact, the prosecution must produce documents either before this Court or before the lower court along with the final report that there was such a prohibitory order and that prohibitory order was communicated to the persons concerned. In this case, it was specifically mentioned in the letter of the Tahsildar, Mallappally that there was no such prohibitory order issued against functioning of the quarry in Block No. 32 in Re. Sy. No. 175/3 of Kottangal village of Mallappally taluk which belongs to the third accused and in which the 4th accused is conducting the quarrying. So, as far as accused 3 and 4 are concerned, there is no violation alleged as well. So, under the circumstances, it cannot be said that they have committed any offence as alleged by the prosecution even on the basis of the admission made by the Tahsildar in his subsequent letter produced before this Court. So, no prosecution will lie against accused Nos. 3 and 4, who are the third petitioner in Crl. M.C. No. 3140/2014 and the petitioner in Crl. M.C. No. 2956/2014 and proceeding with the case against them will amount to an abuse of process of court and the case against them is liable to be quashed invoking the power under Section 482 of the Code.
As regards accused 1 and 2 are concerned, though it was mentioned in the letter and also in the complaint filed by the Tahsildar that there was a prohibitory order against functioning of quarry in Block No. 32 in Re. Sy. No. 175/11 of Kottangal village, no such document has been produced either before this Court or produced before the investigating officer so as to enable him to produce the same before court. The main contentions taken by the petitioners is that there was no such prohibitory order. In spite of that, no attempt was made on the part of the investigating officer or the Station House Officer of Perumpatty police station even to produce such an order before this Court as well and also they have no case that this was intimated to petitioners 1 and 2 as well. Unless it is made known to them, it cannot be said that they were aware of such an order and in violation of that order they have committed any act. I have gone through the entire case diary file produced by the learned Public Prosecutor in this case. There is nothing produced to prove this fact. No documentary evidence has been produced regarding this aspect as well. Non of the witnesses have seen the quarrying operation being done in the property using explosive either at the time when the letter was sent or even during the investigation. So, under the circumstances, it cannot be said that the prosecution was able to establish that accused 1 to 3 in the above case who are petitioners 1 to 3 in Crl. M.C. No. 3140/2014 were also committed the offence alleged. So under the circumstances, this Court feels that without any material produced before the court or before the lower court along with the final report it cannot be said that the prosecution has proved any violation of the prohibitory order which enables the police to register a case against accused 1 and 2 also alleging commission of the offence under Section 9(B)(1)(b) of Explosive Act and proceed case against them will only amount to abuse of process of court. So, under the circumstances, this Court feels that it is a fit case where the entire case against the petitioners in both the cases has to be quashed invoking the power under Section 482 of the Code as there is no material produced either before this Court along with the final report to come to a conclusion that either all the accused have committed the offence alleged. So both the petitions are allowed and further proceedings in C.C. No. 621/2011 (Crime No. 189/2011 of Perumpetty police station pending before the Judicial First Class Magistrate Court, Thiruvalla as against accused 1 to 4, who are the petitioners in the above petitions is hereby quashed.
Office is directed to communicate this order to the concerned court immediately.