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CRL.M.C. 3111/2013 Page 1
HIGH COURT OF DELHI
CRL.M.C. 3111/2013 & Crl.M.A.11644/2013
S K GURUSWAMI & ANR ..... Petitioners
Through: Mr. R.K. Kapoor, Advocate
HIGH COURT OF DELHI
CRL.M.C. 3111/2013 & Crl.M.A.11644/2013
S K GURUSWAMI & ANR ..... Petitioners
Through: Mr. R.K. Kapoor, Advocate
VERSUS
STATE ..... Respondent
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-
State with ASI Jai Prakash
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-
State with ASI Jai Prakash
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 05.08.2013
Impugned order of 17th September, 2011 upholds trial court's order directing petitioners to face the trial for the offence under Section 9-B of the Explosives Act, 1884 read with Section 286 of IPC as petitioners and their co-accused were found to be unloading 12.4 tons of fire-works from a truck in Sanjay Gandhi Transport Nagar, Delhi on 4th October, 2006.
Prosecution of petitioners' is also for being in possession of large quantity of fire-works without a licence.
Impugned order notes that as per Government's communication of
15th October, 2006, transportation of fire-works by road is exempted from any licence under the Explosives Rules, 1983. However, revisional court has found in the impugned order that petitioners have prima facie
2013:DHC:3877
Impugned order of 17th September, 2011 upholds trial court's order directing petitioners to face the trial for the offence under Section 9-B of the Explosives Act, 1884 read with Section 286 of IPC as petitioners and their co-accused were found to be unloading 12.4 tons of fire-works from a truck in Sanjay Gandhi Transport Nagar, Delhi on 4th October, 2006.
Prosecution of petitioners' is also for being in possession of large quantity of fire-works without a licence.
Impugned order notes that as per Government's communication of
15th October, 2006, transportation of fire-works by road is exempted from any licence under the Explosives Rules, 1983. However, revisional court has found in the impugned order that petitioners have prima facie
2013:DHC:3877
CRL.M.C. 3111/2013 Page 2 infringed Rules 36 and 38 of the Explosives Rules, 1983. Aforesaid two
Rules are reproduced in the impugned order and they pertain to loading and unloading of fire-works at licenced storehouse or other licenced premises and specify the weight of such fire-works which can be transported. The maximum weight of the consignments of fire-works which can be transported by roads is ten tons or the maximum carrying capacity of road vans licenced under the Rules.
Quashing of FIR No.834/2006 under Sections 286/336/34 of IPC and Section 9-B of the Explosives Act, 1884 registered at P.S.Samaipur
Badli, Delhi is sought in this petition after the charge-sheet has been filed.
Learned counsel for petitioners vehemently assails impugned order on the ground that restriction of ten tons is for the road vans and not for transportation of consignments of the fire-works in truck. It was urged on behalf of petitioners that in any case, petitioners cannot be prosecuted for being found in possession of fire-works without a licence and it was submitted that revisional court in the impugned order has accepted this legal position, but still has not set aside the charge framed by the trial court in which it is clearly stated that the prosecution of petitioners is for transporting fire-works without any licence.
So far as infringement of Rule 38 of the Explosives Rules, 1983 is concerned, it was contended by learned counsel for petitioners that it is not possible to unload the fire-works at the licenced shops and so the fire- works are unloaded in transport areas and from there the fire-works are dispatched to the licenced stores and so, there is no infringement of Rule
38 of the Explosives Rules, 1983. Thus, it was submitted that the registration of the FIR in question and the proceedings emanating
Rules are reproduced in the impugned order and they pertain to loading and unloading of fire-works at licenced storehouse or other licenced premises and specify the weight of such fire-works which can be transported. The maximum weight of the consignments of fire-works which can be transported by roads is ten tons or the maximum carrying capacity of road vans licenced under the Rules.
Quashing of FIR No.834/2006 under Sections 286/336/34 of IPC and Section 9-B of the Explosives Act, 1884 registered at P.S.Samaipur
Badli, Delhi is sought in this petition after the charge-sheet has been filed.
Learned counsel for petitioners vehemently assails impugned order on the ground that restriction of ten tons is for the road vans and not for transportation of consignments of the fire-works in truck. It was urged on behalf of petitioners that in any case, petitioners cannot be prosecuted for being found in possession of fire-works without a licence and it was submitted that revisional court in the impugned order has accepted this legal position, but still has not set aside the charge framed by the trial court in which it is clearly stated that the prosecution of petitioners is for transporting fire-works without any licence.
So far as infringement of Rule 38 of the Explosives Rules, 1983 is concerned, it was contended by learned counsel for petitioners that it is not possible to unload the fire-works at the licenced shops and so the fire- works are unloaded in transport areas and from there the fire-works are dispatched to the licenced stores and so, there is no infringement of Rule
38 of the Explosives Rules, 1983. Thus, it was submitted that the registration of the FIR in question and the proceedings emanating
CRL.M.C. 3111/2013 Page 3 therefrom is unwarranted and so this FIR and the proceedings emanating therefrom deserve to be quashed.
Learned Additional Public Prosecutor for respondent-State supports the impugned order and submits that there is clear infringement of Rules 36 and 38 the Explosives Rules, 1983 and such restriction on transportation of fire-works cannot be restricted to vans only and it is immaterial whether the fire-works more than the permissible limit are transported in vans or in trucks. Thus, dismissal of this petition is sought.
The contentions advanced by both the sides have been duly considered. Impugned order as well as the trial court's order and the relevant provisions of the Explosives Rules, 1983 has been perused and thereupon, it becomes evident that there is prima facie infringement of
Rules 36 and 38 of the Explosives Rules, 1983 and so the prosecution of petitioners' for the infringement of the aforesaid Rules, is well justified.
However, though the impugned order takes note of the fact that the prosecution of petitioners' for transporting fire-works without a licence is impermissible in view of Government's communication of 15th October, 2006, but still the notice framed has not been directed to be rectified to specifically state that the prosecution of petitioners' is not for transporting fire-works without a licence and is for infringement of Rules 36 and 38 of the Explosives Rules, 1983.
To the aforesaid extent, this petition is allowed and it is directed that the notice framed against petitioners under Section 251 of Cr.P.C. be re-framed to spell out that the prosecution of petitioners' and their co- accused is for contravention of Rules 36 and 38 of the Explosives Rules, 1983 only.
Learned Additional Public Prosecutor for respondent-State supports the impugned order and submits that there is clear infringement of Rules 36 and 38 the Explosives Rules, 1983 and such restriction on transportation of fire-works cannot be restricted to vans only and it is immaterial whether the fire-works more than the permissible limit are transported in vans or in trucks. Thus, dismissal of this petition is sought.
The contentions advanced by both the sides have been duly considered. Impugned order as well as the trial court's order and the relevant provisions of the Explosives Rules, 1983 has been perused and thereupon, it becomes evident that there is prima facie infringement of
Rules 36 and 38 of the Explosives Rules, 1983 and so the prosecution of petitioners' for the infringement of the aforesaid Rules, is well justified.
However, though the impugned order takes note of the fact that the prosecution of petitioners' for transporting fire-works without a licence is impermissible in view of Government's communication of 15th October, 2006, but still the notice framed has not been directed to be rectified to specifically state that the prosecution of petitioners' is not for transporting fire-works without a licence and is for infringement of Rules 36 and 38 of the Explosives Rules, 1983.
To the aforesaid extent, this petition is allowed and it is directed that the notice framed against petitioners under Section 251 of Cr.P.C. be re-framed to spell out that the prosecution of petitioners' and their co- accused is for contravention of Rules 36 and 38 of the Explosives Rules, 1983 only.
CRL.M.C. 3111/2013 Page 4
With aforesaid directions, this petition and the application are disposed of.
SUNIL GAUR, J AUGUST 05, 2013 s
With aforesaid directions, this petition and the application are disposed of.
SUNIL GAUR, J AUGUST 05, 2013 s
JUDGMENT