Pradipbhai @ Butabhai S/O ... vs State Of Gujarat
2021 Latest Caselaw 5141 Guj

         R/CR.MA/2396/2021                                       ORDER




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 2396 of 2021

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     PRADIPBHAI @ BUTABHAI S/O REVABHAI ARJANBHAI BHARVAD
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
MR. MITESH AMIN, PUBLIC PROSECUTOR(2) with MR.H.K.PATEL, APP for
the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                             Date : 16/04/2021

                                  ORAL ORDER

1. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered

as C.R. No.I­11191065200923 of 2020 with NAROL POLICE STATION,

DISTRICT ­ AHMEDABAD, for the offence punishable under Sections 304,

308, 284, 285, 286, 436, 427, 337, 338, 114 of the Indian Penal Code and under Section 7, 8, 9, 15 and 16 of the Envirornment (Protection) Act.

2. Learned Advocate appearing on behalf of the applicant submits that considering the nature of offence, the applicant may be enlarged on regular

bail by imposing suitable conditions. Learned Advocate while adopting the

agruments of Senior Advocate, Shri Y. S. Lakhani appearing in Criminal

Misc. Application No.3413 of 2021, co­accused­ Hetalbhai Girishbhai

Sutaria, has further argued.

3. Learned Advocate for the applicant submitted that the applicant in the land lord of the premises that the applicant had rented out to the accused no.1

and the incident has taken place on account of the chemical process carried

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out by the accused no.1, resulting into blast and the incident as narrated in

the FIR.

4. Learned Advocate for the applicant submitted that the applicant is not having any control over the business activity carried out by the main

accused. The applicant is not in any other way connected with the offence.

It is submitted that the applicant cannot be held vicariously responsible for

the act of negligence by the accused no.1. It is submitted that in the

premises of the applicant, no deaths have occurred, but in the godown

adjacent to the applicant's godown, where the manufacturing activity of

cloths was going on, has suffered major damage in structure and loss of life in that premises. The owner of that premises has already been enlarged on

regular bail by the Sessions Court. Therefore, applying the principle of

parity, the applicant should be considered for the grant of regular bail.

5. It is submitted that the Local Authority like the Municipal Corporation, Industrial Branch is required to carry out periodical visit for the safety

aspect and therefore so far as the applicant has never been issued with any

Notice or warning with regard to the safety measures by any of the

Authorities. Therefore, also, the applicant cannot be treated to have been

negligent.

6. It is submitted that by filing of the charge­sheet, the investigation has already invoked Sections 284, 285, 286 of the IPC, in which the aforesaid,

there is no question of therefore attracting the Section­304 of IPC as well.

Therefore, considering the maximum punishment that can be imposed for

the offences under Sections­284, 285 and 286 of the IPC, the case of the

applicant deserves consideration.

7. On the other hand, the learned Additional Public Prosecutor appearing for the respondent­State has opposed grant of regular bail looking to the

nature and gravity of the offence. Learned Additional Public Prosecutor

also submitted that offence is of very serious nature, where 13 number of

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people have been died, and 9 number of people have been seriously

injured. It is submitted that the applicant will be squarely responsible for

the offence and the incident cannot be termed to be accident. It is

submitted that an illegal structure set up without any prior permission /

sanction of the Local Body or the Industrial Authority. The construction

was fully covered from all the sides, had no ventilation at all. Therefore, it

created very hazardous situation for manufacturing activity involving

Hazardous chemicals. The applicant claimed to be in the business for 20

years, to have sufficient knowledge regarding consequences. Moreover,

knowledge that the act of the applicant is so eminently danger that in all probability, which resulted in such bodily injury, likely to cause death from

the fact that the applicant had not installed any safety measures or basic

fire safety system.

8. It is submitted that the FSL report indicates that the chemical used for the purpose of manufacturing the product MEKP (Methyl Ethyl Ketone

Peroxide) of having the capacity of route of vast explosion depending upon

the temperature of the surrounding environment. With this definite

conclusion, the applicant cannot capture the criminal liability of criminal

negligent.

9. It is also submitted that there was a complaint against the applicant of an accident to the factory premises where the applicant was operating from

other premises.

10. It is submitted that the applicant is directly responsible because the land on which the structure was put up, was an agricultural land, the applicant was

not entitled to put up any construction of as such inside without any plan,

sanction or approval of the Local Body, the applicant has put up the

construction and thereafter, willful knowledge about the nature of

manufacturing process to be adopted by the accused no.1, had rented out

the premises to the accused no.1. Therefore, the fact that the applicant has

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put up construction unauthorizedly and given the same for unauthorized

manufacturing activity itself, is sufficient to attract ingredients of

Section­304, the applicant said to be vicariously responsible for the offence.

11. Having considered the rival submissions of the parties and having perused the documents on record, it appears that offence appears to have taken

place, where manufacturing activity is taking place in the said premises the

adjoining godowns. Huge explosion took place on account of the chemical

process being undertaken in the premises of the godown of the applicant,

resulting into the spread fire and collapse of the structure of the godown

occupied by the applicant as well as neighboring structures, resulting the death of 13 number of persons and serious injury to 9 number of persons.

The applicant was engaged in the manufacturing of MEKP (Methyl Ethyl

Ketone Peroxide), which is a raw material to produce Fiber Reinforced

Polymer (FRP) by mixing other chemicals namly Hydrogen Peroxide (HP),

Methyl Ethyl Ketone (MEK), Dimethyl Phthalate (DMP) and Diethylene

Glycol (DEG) in a cold process.

12. After upon the conclusion of the Investigation, charge­sheet has been field, wherein the applicant is now facing the charge of Offence under Section(s)

304, 308, 284, 285, 286, 436, 427, 337, 338, 114 of I.P.C. against accused

persons stated in column 1, where an incident of a blast and fire occurred

at about eleven o' clock in the morning on 04/11/2020 at godown no.12,

Revabhai Estate, Piplaj. The place where the incident took place was

possessed by accused no.(1) Hetalbhai Girishbhai Sutaria, the owner of

Sahil Enterprise on rental basis as a godown for storage of chemical. The

owner of place, accused no.(2) Pradipbhai alias Butabhai Revabhai

Bharwad had given the place to Hetalbhai as a godown on rental basis for

his financial benefits. On this agricultural land, Pradipbhai alias Butabhai

Revabhai Bharward has constructed about twenty godowns known as

Revabhai Estate without obtaining any permission of using the land for

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non­agricultural or industrial purpose from the Mamlatdar or the Collector

and rented the godowns to different units for industrial storage as well as

commercial purposes for financial benefits. He has not received any kind of

permission from the concerned department of Ahmedabad Municipal

Corporation. Further, he has not taken any permission from the Fire

department of AMC which is mandatory for the hazardous and

inflammable industrial units. Neither he ensured any fire extinguishing

equipments at his godowns.

13. Moreover, the accused Hetalbhai was carrying out activity to manufacture the chemical namley M.E.K.P. (Methyl Ethyl Ketone Peroxide) under the name of Sahil Enterprise in the rented godown at the Revabhai Estate of

the accused Pradipbhai @ Butabhai Revabhai Bharwad, without any

chemical license or government license despite knowing that the said

chemical can cause dangerous blast and fire tragedy and for personal

financial benefit, stored ready material of M.E.K.P. and other various

chemical used for manufacturing the said chemical without following

proper precautions at the place not ventilated properly and by taking

unauthorizedly constructed place on rent, without placing any kind of

safety equipments, without obtaining any kind of permission for fire from

Ahmedabad Municipal Corporation and kept the said business continue.

For the said chemical process, they hired deceased Mustufa Alubhai, Age 51

Years, who had no educational qualification or skill. Moreover, despite

knowing that work was running in the godowns surrounding of the Sahil

Enterprise with the highly inflammable clothes and large numbers of

person were working therein and despite knowing that extreme fatality can

be happened in case of accident, they stored chemical for personal

monetary benefit and kept its manufacturing process continue. They

continue to discharge the chemical which is discharged at the end of

manufacturing process of chemical without obtaining permission from

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Gujarat Pollution Control Board causing chemical hazard to the human and

animal lives and environment. Earlier, the accused Hetal Sutaria was

carrying out activity to manufacture M.E.K.P. Chemical under the name of

Sahil Enterprise in the rented place at Popatkaka Estate situated at Piplaj

and the incident of fire took place in the year 2016, but no fatality

happened in the said incident and only humiliation was faced. In respect

whereof, Janvajog Entry No.170/16 dated 23/11/2016 was made at Vatva

Police Station. Thus, despite having prior knowledge and experience of

extreme inflammability of the said chemical and that it can cause explosion

if it is stored in huge stock and can cause fatality as well as humiliation, they kept manufacturing process of the said chemical continue for personal

monetary benefit.

14. On examining the details regarding the chemical stock of the Sahil Enterprise, it has clearly appeared that the chemicals MEK, DEG, DMP and

the chemical prepared from them viz. M.E.K.P. were found available in

large quantity at the place of the incident. Further, as per the opinion of the

FSL, Ahmedabad vide FSL Report No - FSL/TPN/20/C/574, dated

13/11/2020, due to the presence of the inflammable substances and the

substances causing oxidation found in the sample seized for examination

from the place of the incident, there is a possibility of blast and breaking

out of fire because of the said chemicals in confined situation or in the

situation of creating pressure or anomalous condition of temperature.

Methyl Ethyl Ketone (inflammable substance) and Hydrogen Peroxide

(Oxidizer) can be called as the constituents of a volatile substance of

organic peroxide class, namely methyl ethyl ketone peroxide. The said

substance is capable to react enormously with a blast at the room

temperature, which may cause the incident of fire or blast. It has been

stated so clearly. In this manner, the incident of fire with a blast had taken

place in the godown, since an unskilled person had been made to process

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the chemicals at a place with illegal construction without taking any

precautions and following the prescribed rules and standards for

ventilation, cooling, equipments of fire safety, equipments of industrial

safety and chemical process handling and without preparing industrial

accident response plan which is required to be in place for any unforeseen

situations. Due to intensity of the said incident, the godown of the Kanika

Fashion located adjacent to the Sahil Enterprise got collapsed and the fire

spread in it and the worker working in the Kanika godown got buried

under the debris of the same.

15. The FSL report dated 13­11­2020 tendered before the Court, has given opinion on the analysis, which is as under:

"OPINION OF ANALYSIS:

1. Due to presence of inflammable substances and oxidizing agents in the samples, there is a possibility that the said chemicals can cause fire and explosion in confined space under adverse condition of shock, pressure or temperature.

2. Methyl ethyl ketone (inflammable substance) and hydrogen peroxide (oxidizing agent), found in the above samples can be components of volatile substance namely methyl ethyl ketone peroxide of carbonic peroxide class. The said substance is capable of causing massive reaction with explosion at a room temperature, which can result into event of fire and explosion."

16. Prima facie the incident has happened purely on account of the chemical process being undertaken in the premises of the applicant, which does not

appear to be conducive for the purpose of manufacturing activity

especially, the activity of mixing of chemical to create the third product.

The incident is result of the manufacturing activity and form of damage

being attributed to such blast and the lack of machinery, fire safety and

industrial safety equipment, is a deliberate criminal negligence on the part

of the applicant. One more aspect which needs consideration is that though

the manufacturing activity involved mixing of chemicals, which are

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admittedly Hazardous chemicals living such activity of manufacturing

which involved Hazardous chemicals on an unqualified employee would

itself suggest of gross criminal negligence on the part of the applicant.

Reliance placed upon the judgment in the case of Keshub Mahindra

(supra). The Judgment placed on the point of framing of charge and

ingredients required to be looked into while framing of the charge. The

examination by the Apex Court was as to whether in given such Section­

304 Part­II, is to be attracted or Section­304(a) of the IPC is to be attracted.

17. In the present case, the exercise as to find out whether sufficient evidence is on record to prima facie justify the charge of Section­304 and other relevant sections and threadbare examination of material, evidence and the

application of appropriate Sections of IPC, is an exercise unwarranted.

18. On merits, the arguments on the part of the applicant for not attracting Section­304 or at best Section­304(a), which would require and on the part

of the accused, which can be termed to be rash or negligent act.

Requirement of Section 304 is the knowledge that the fact of mixing of

Hazardous chemicals is so eminently dangerous that in all probability is

likely to cause high level of explosion resulting into bodily injury likely to

cause death and as a matter of fact, the incident has taken place and

several persons have lost their lives and several persons have been seriously

injured. Prima facie sufficient evidence is thereto substantiate the charge.

19. The arguments on the part of the applicant to the extent that once Sections­284, 285, 286 of the IPC are invoked, then in that case, the

applicant is not required to be charged with Section­304. Framing of

Section­286, which is for the negligence conduct with respect to the

explosive substance, is restricted only to mean the Tenant Act is rash or

negligent to endanger human life or likely to cause hurt or injury to any

other persons. The requirement to attract Section is possibility of

endangering the human life by the Act, which may lead to explosion

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involving the usage of explosive substance. Whereas, in the instant case, it

is the use of the explosive substance leading the explosion, leading to

damage to standing structures and vehicles and loss of several lives and

serious injuries to others and such argument on the part of the applicant is

not accepted. The Apex Court in case of Sushil Ansal v/s State Through

CBI reported in 2014 (6) SCC 173, held in para­47,48,49, 50, as under:

47.Section 304A of the IPC makes any act causing death by a rash or negligent act not amounting to culpable homicide, punishable with imprisonment of either description for a term which may extend to two years or with fine or with both. It reads:

"304A. Causing death by negligence.­­ Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

48. The terms 'rash' or 'negligent' appearing in Section 304A extracted above have not been defined in the Code. Judicial pronouncements have all the same given a meaning which has been long accepted as the true purport of the two expressions appearing in the provisions. One of the earliest of these pronouncements was in Empress of India v. Idu Beg ILR (1881) 3 All 776, where Straight J. explained that in the case of a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences. A similar meaning was given to the term 'rash' by the High Court of Madras in In Re: Nidamarti Negaghushanam 7 Mad HCR 119, where the Court held that culpable rashness meant acting with the consciousness that a mischievous and illegal consequence may follow, but hoping that it will not. Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. These meanings given to the expression 'rash', have broadly met the approval of this Court also as is evident from a conspectus of decisions delivered from time to time, to which we shall presently advert. But before we do so, we may refer to the following passage from "A Textbook of Jurisprudence" by George Whitecross Paton reliance whereupon was placed by Mr. Jethmalani in support of his submission. Rashness according to Paton means "where the actor foresees possible consequences, but foolishly thinks they will not occur as a result of his act".

49. In the case of 'negligence' the Courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused

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to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection.

(iii) What constitutes Negligence?:

50. The expression 'negligence' has also not been defined in the Penal Code, but, that has not deterred the Courts from giving what has been widely acknowledged as a reasonably acceptable meaning to the term. We may before referring to the judicial pronouncements on the subject refer to the dictionary meaning of the term 'negligence'.

20. The Court has also perused the order of the Sessions Court dated 30­01­2021 passed in Criminal Misc. Application no.317 of 2021 and

cogent reasons have been assigned while rejecting the application for

regular bail of the applicant.

21. In view of the aforesaid facts and circumstances, the application does not deserve consideration and no case is made out for the exercise of discretion

in favour of the applicant for the grant of regular bail in connection with

aforesaid C.R. Hence, the application is dismissed. Rule is discharged.

(A.Y. KOGJE, J) PARESH SOMPURA