Ummer vs State Of Kerala
2023 Latest Caselaw 3113 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
                       BAIL APPL. NO. 486 OF 2023

        CRIME NO. 1263/2022 OF MALAPPURAM POLICE STATION

 AGAINST THE ORDER/JUDGMENT IN CRMC 1408/2022 OF DISTRICT COURT&
                         SESSIONS COURT,MANJERI
PETITIONER/ACCUSED NOS. 1 AND 2:

    1       UMMER
            AGED 60 YEARS
            S/O. MOHAMMED HAJI, AGED 60 YEARS, KAPPOOR
            HOUSE,MELMURI POST, ERANAD TALUK,
            MALAPPURAM DISTRICT, PIN - 676517
    2       ABDUL MAJEED
            AGED 50 YEARS
            S/O. AHAMMED, AGED 50 YEARS,
            PANDARA ARAKKAL HOUSE, N K PADI,
            KODUR POST, PERINTHALMANNA TALUK,
            MALAPPURAM DISTRICT, PIN - 676504
            BY ADV K.RAKESH


RESPONDENT/STATE:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM,
            KOCHI, PIN - 682031
    2       THE STATION HOUSE OFFICER
            MALAPPURAM POLICE STATION,
            MALAPPURAM DISTRICT, PIN - 676505
            BY ADV PUBLIC PROSECUTOR


OTHER PRESENT:

            P G MANU SR.PP


     THIS   BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 486 OF 2023
                                     2



                                ORDER

Dated this the 23rd day of March, 2023

This is a petition filed under Section 438 of the

Code of Criminal Procedure, seeking pre-arrest bail and the

petitioners are accused Nos. 1 and 2 in Crime No. 1263/2022

of Malappuram Police Station.

2. Heard the learned counsel for the petitioners as

well as the learned Public Prosecutor. Perused the relevant

materials forming part of the case diary produced by the

learned Public Prosecutor.

3. The prosecution allegation is that, at 15.00 hours

on 15.12.2022, the 2nd accused possessed explosive

substances viz. Explosives Gelatine Stick 144 counts,

Detonators, 42 counts, against the restrictions contained in

the Explosive Substance Act, 1908, without a license. On

search those explosive substances along with 2 Excavators, 1

JCB, 3 compressors and 1 Hitachi Excavator were recovered

which are meant for quarrying operation in the property

owned by the 1st accused. Subsequent to recovery of those BAIL APPL. NO. 486 OF 2023

items, crime alleging commission of offences punishable

under Sections 4 and 5 of the Explosive Substance Act, 1908

was registered and the same is on investigation.

4. The learned counsel for the petitioners would

submit that, the petitioners are innocent and the allegations

are false. The learned counsel for the petitioners also

submitted that as far as the 1 st accused is concerned, he did

not have any knowledge regarding the operation of the

quarry by the 2nd accused without renewing the license

though earlier upto 31.03.2021 the 2nd accused got license to

deal with explosives. It is submitted by the learned counsel

for the petitioners further that the 2 nd accused also obtained

license and though the same was expired on 31.03.2021. It is

submitted further that the 2nd accused filed renewal

application, thereafter. Therefore, the learned counsel for the

petitioners pressed for grant of anticipatory bail to the

petitioners with offer to co-operate with the investigation.

5. The learned Public Prosecutor strongly opposed

grant of anticipatory bail. In so far as the 2 nd accused is

concerned, it is submitted by the learned Public Prosecutor BAIL APPL. NO. 486 OF 2023

that huge quantity of explosive substances stored by him, for

the purpose of quarrying, without any license and the license

already expired 21 months before the date of recovery.

Therefore, the 2nd accused cannot be released on bail.

6. The relevant documents forming part of the case

diary placed by the learned Public Prosecutor would show

that, Explosives Gelatine Stick 144 counts and Detonator 42

counts were recovered from the property owned by the 1 st

accused, where quarrying operation has been carried out by

the 2nd accused. In fact, the said recovery without a license

would establish commission of offences punishable under

Sections 4 and 5 of the Explosive Substance Act, prima facie.

As far as the 1st accused is concerned, in view of the fact

that, the 2nd accused initially had a license, his complicity is

on a lesser plat form. Therefore, he can be enlarged on

anticipatory bail on conditions.

7. Coming back, even reading the license in favour of

the 2nd accused, which was available upto 31.03.2021, the

same does not permit Gelatine Stick 144 counts. Most

importantly the 2nd accused not renewed the license so far. BAIL APPL. NO. 486 OF 2023

Therefore, the complicity of the 2nd accused in this crime is

well established prima facie and therefore, custodial

interrogation of the 2nd petitioner is necessary. As such he

cannot be released on anticipatory bail.

8. Holding so, 1st accused can be enlarged on

anticipatory bail, while dismissing application of the 2 nd

accused.

In the result, bail plea at the instance of the 2 nd

petitioner/ 2nd accused stands dismissed. The petition at the

instance of 1st petitioner/1st accused stands allowed. The 1st

petitioner/ 1st accused is enlarged on bail on conditions:

i. The 1st petitioner/1st accused shall surrender before

the Investigating Officer within ten days from today and on

such surrender, the Investigating Officer can question 1st

petitioner/1st accused and record his statement, if necessary.

In the event of his arrest, the Investigating Officer shall

produce him before the Jurisdictional Court on the date of

surrender itself.

ii. On such production, Jurisdictional Court shall

release 1st petitioner/1st accused on bail, on executing bond BAIL APPL. NO. 486 OF 2023

for Rs.30,000/- (Rupees Thirty thousand) each, by him and by

two sureties, each for the like sum to the satisfaction of the

Jurisdictional Court.

iii. The 1st petitioner/1st accused shall co-operate with

investigation and shall be made available for interrogation

and for the purpose of investigation, as and when the

Investigating Officer directs so.

iv. The 1st petitioner/1st accused shall not, intimidate

the witnesses or interfere with the investigation in any

manner.

v. The 1st petitioner/1st accused shall not commit any

offence during currency of this bail and any such involvement

is a reason to cancel the bail hereby granted.

Sd/-

A. BADHARUDEEN JUDGE LU BAIL APPL. NO. 486 OF 2023

APPENDIX OF BAIL APPL. 486/2023

PETITIONER ANNEXURES :

ANNEXURE A TRUE COPY OF THE LE-3 LICENSE OF THE 2ND ACCUSED ISSUED BY THE ADM, MALAPPURAM DATED 15-3-2017 ANNEXURE B A TRUE COPY OF THE COMMON ORDER IN CRL.M.C.1409/2022 AND CRL.M.C.NO.1408/2022 FILED BEFORE THE COURT OF SESSION, MANJERI DIVISION DATED, 9-1-2023

// True Copy // PA To Judge