Noufal vs State Of Kerala
2023 Latest Caselaw 1160 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
 WEDNESDAY, THE 18TH 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 18th 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

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

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

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

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

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

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