Sri. Santosh K S Vs the State of Karnataka

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NC: 2025:KHC:1858 WP No. 33875 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 33875 OF 2024 (GM-RES)

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BETWEEN:

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SRI. SANTOSH K S MANAGING PARTNER OF M/S SRI LAXMI VENKATESHWARA CRACKERS BAZAAR S/O K V SATYANARAYANA SETTY AGED ABOUT 46 YEARS R/A NO. 152 3RD CROSS MANASARA ROAD, INDIRA NAGARA MYSORE 570010

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MANOJ (A2) S/O GANESH AGED ABOUT 26 YEARS R/O NO. 157, KAMANAKERE HUNDI ROAD RAMANHALLI MYSORE DISTRICT KARANATAKA 570010

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…PETITIONERS

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Digitally signed by LEELAVATHI S R Location: High Court of Karnataka

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(BY SRI. SIRI RAJASHEKAR., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY KRISHNARAJA POLICE AGRAHARA M G ROAD K R MOHALLA MYSORE KARNATAKA 570004 REPT BY ITS HCGP HIGH COURT OF KARNATAKA BENGALURU 560001

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…RESPONDENT

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(BY SRI. VINAY MAHADEVAIAH, HCGP)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

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CHARGE SHEET, DTD. 13.02.2024 FILED IN CRIME NO. 90/2023 AT ANNX-J AND THE COGNIZANCE ORDER DTD. 30.10.2023 IN CRIME NO.90/2023 PASSED BY THE HONBLE IV JMFC, MYSURU FOR OFFENCES PUNISHABLE UNDER SECTION 286 READ WITH SECTION 34 OF THE INDIAN PENAL CODE 1860 AND SECTION 9(B)(2) OF THE EXPLOSIVES ACT, 1884 AT ANNX-J.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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In this petition, petitioners seek the following reliefs:

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“(a) Issue a writ in the nature of Certiorari or any other appropriate writ to quash the charge sheet, dated 13.02.2024 filed in Crime No.90/2023, at Annexure-J, and the cognizance order dated 30.10.2023 in Crime No.90/2023 passed by the Hon’ble IV JMFC, Mysuru, for offences punishable under Section 286 read with Section 34 of the Indian Penal Code, 1860, and Section 9(B)(2) of the Explosives Act, 1884, at Annexure-J1;

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(b) Pass such other orders or direction as this Hon’ble court deems fit in the facts and circumstance of the case.”

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Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

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A perusal of the material on record will indicate that the respondent conducted a raid of the godown of petitioner No.1 on 12.10.2023 and seized fire crackers from the godown and

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initiated the impugned proceedings against the petitioner for the alleged offences punishable under Section 286 r/w. Section 34 of IPC and Section 9(B)(2) of the Explosives Act, 1884. According to respondent, the petitioner was guilty of over-stocking the subject fire crackers and storing fire crackers in excess of the quantity allowed/permitted under the licence issued in favour of petitioner No.1 – accused No.1 under whom petitioner No.2-accused No.2 was working as an employee.

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Learned counsel for the petitioner invited my attention to the material on record in order to point out that the requisite procedure required under the Explosives Act and Rules had not been followed during the course of the raid as well as for the purpose of ascertaining as to whether the quantity/weight of the fire crackers seized from the premises of the petitioners exceeded the limit prescribed under the license. It was contended that Rule 74(2) of the Explosives Rules, 2008, provides that petitioners were entitled to keep excess goods for a period of 15 days due to unavoidable circumstances and the respondent could not have initiated the impugned proceedings without providing such opportunity to the petitioner by permitting him to file an appropriate

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application in this regard. It was also submitted that for the purpose of ascertaining the quantity and weight of the goods, it was necessary to eliminate the weight of the packaging material and consider the weight of only the fire crackers without the packaging material and failure on the part of the respondent to do so would vitiate the entire proceedings.

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It was also contended that in the absence of report submitted by the Police Officer, who conducted the inspection as contemplated under Rule 128(2) of the Explosives Rules coupled with the fact that the explosives were not stored in an isolated place in terms of Rule 128(3), the entire proceedings commencing from raid/inspection were illegal and contrary to the aforesaid provisions and the same deserves to be quashed. Lastly, it was contended that the alleged offences being non-cognizable offences, necessary permission for investigation as mandated under Section 155(2) of Cr.P.C., having not been obtained by the respondent, the impugned proceedings deserves to be quashed on this ground also. In support of his contention, learned counsel for the petitioner placed reliance upon the judgment of this Court in the case of Badrinath Vs. State of Karnataka and others –

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Crl.P.No.200304/2024 and connected matters dated 03.06.2024 as well as the case of Harish Babu Vs. State of Karnataka – Crl.P.No.12231/2023 dated 08.12.2023 .

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Per contra, learned HCGP for the respondent submits that there is no merit in the petition and that the same is liable to be dismissed.

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As rightly contended by the learned counsel for the petitioner that requisite procedure required under the Explosives Act and Rules had not been followed during the course of the raid as well as for the purpose of ascertaining as to whether the quantity/weight of the fire crackers seized from the premises of the petitioners exceeded the limit prescribed under the license. Further, there was contravention of Rule 74(2) of the Explosives Rules, 2008, which provides that petitioners were entitled to keep excess goods for a period of 15 days due to unavoidable circumstances and the respondent could not have initiated the impugned proceedings without providing such opportunity to the petitioner by permitting him to file an appropriate application in this regard and on this score also, the impugned proceedings deserves to be quashed.

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8. A perusal of the material on record will also indicate

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that the respondent had contravened and violated Rule 16 of the Explosive Rules, in as much as for the purpose of ascertaining the quantity and weight of the goods, as it was necessary to eliminate the weight of the packaging material and consider the weight of only the fire crackers without the packaging material and failure on the part of the respondent to do so vitiated the entire proceedings. So also, in the absence of report submitted by the police officer who conducted the inspection as contemplated under Rule 128(2) of the Explosives Rules coupled with the fact that the explosives were not stored in an isolated place in terms of Rule 128(3), the entire proceedings commencing from raid/inspection were illegal and contrary to the aforesaid provisions and the same deserves to be quashed. It is also significant to note that the alleged offences being non-cognizable offences, necessary permission for investigation as mandated under Section 155(2) of Cr.P.C., having not been obtained by the respondent, the impugned proceedings deserves to be quashed on this ground also.

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9. In Badrinath’s case supra , a co-ordinate Bench of this Court held as under:

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“The petitioners who had a valid licence under the Explosive Act, 1884 and Explosives Rules, 2008 are before this Court under Section 482 of Cr.P.C assailing the FIR registered against them for offences punishable under Sections 285 and 336 of IPC and Section 9B of Explosive Act, 1884 read with Rules 74, 83, 127 of the Explosive Rules, 2008 pending on the file of III Additional Civil Judge and JMFC, Kalaburagi.

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2. Heard the learned counsel for the petitioners and learned High Court Government Pleader for respondent/State.

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3. Facts leading to filing of these petitions as revealed from the records narrated briefly are :-

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Raid was conducted by the PSI attached to the Chowk Police Station, Kalaburagi on four premises situated within the jurisdiction of Chowk Police Station in which crackers, sparklers and other fire works were stored and during the course of raid it was found that though the said premises had a valid licence, the licensee had stored excess quantity of crackers, sparklers etc. in the premises which existed in a density populated area and therefore the crackers, sparklers and other fire works found in the premises were seized and thereafter the PSI had locked the premises and after returning to the police station four separate FIR was registered in Crime No.201/2023, Crime No.198/2023, Crime No.194/2023 and Crime No.197/2023 as against petitioners Crl.P.No.200307/2024, in Crl.P.No.200304/2024, Crl.P.No.200309/2024 and

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Crl.P.No.200317/2024 respectively. Similarly, the PSI attached to the Brahampur Police had registered Crime No.206/2023 as against the petitioner in Crl.P.No.200316/2024. Being aggrieved by the same, the petitioners are before this Court.

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4. Learned counsel for the petitioners having reiterated the grounds urged in the petition submits thateven if the allegations found in the first information are presumed to be true, no case can be made out against the petitioners for offences punishable under Sections 265 and 336 of IPC. He submits that the other offences are non-cognizable and compliance of Section 155(2) of Cr.P.C becomes mandatory. Only to avoid the same, FIR has been registered for offences punishable under Sections 285 and 336 of IPC. He submits that the petitioners had a valid license for the premises in question and therefore for violation of the license conditions the police could not have registered a case.

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5. Learned High Court Government Pleader however submits that the petitioners have violated the license conditions. No precautionary measures were taken in the premises in which the fire works were stored and it is under the said circumstances, FIR has been registered. She submits that there are sufficient materials to prove the alleged offences against the petitioners. Accordingly, prays to dismiss the petitions.

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6. It is not in dispute that the petitioners herein had a valid license issued by the competent authority for possessing and selling manufactured fire works. In the

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license it is stated that license is liable to be suspended or revoked for any violation of provisions of the Act or rules framed there under or conditions of the license or if the licensed premises are not found confirming to the description shown in the plans and annexure attached to the license.

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7. Rule 74 of the Explosives Rules, 2008 provides for storage of explosives in excess of the licensed quantity. Rule 74(2) of the Explosives Rules, 2008 provides licensing authority may issue a permit for a period not exceeding fifteen days to licenses for storage of explosives in excess of licensed quantity when such authority is satisfied that such excess storage is essential and unavoidable due to circumstances beyond control of the licensee. Therefore, it is very clear that even if excess storage is made, on an application filed, the licensing authority can permit excess storage for a limited period. Rule 128 of the Rule provides for power for storage and seizure. The said rule reads as under:

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"128. Powers of search and seizure. (1) Any authority specified in column (1) of the Table below may within the jurisdiction specified in the corresponding entry in column (2) of that Table-

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(a) enter, inspect and examine any place, aircraft, train, carriage, vessel or any mode of transport in which an explosive is being manufactured, possessed, used, sold, transported, exported or imported under a licence granted under these rules, or in which he has reason to believe that an explosive has been or is being manufactured, possessed, used, sold, transported, exported or imported in contravention of the Act or these rules;

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(b) search for explosives or ingredients thereof;

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(c) take samples of any explosive or ingredients found therein on payment of the value thereof, if such payment is demanded at the time of the sample are taken;

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(d) seize, detain and remove any explosive or ingredients thereof found therein together with connected documents thereof in respect of which he has reason to believe that any of the provisions of the Act or these rules have been contravened.

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Authority	Jurisdiction
The chief controller or controller	All parts of India
All District Magistrates	Their respective jurisdiction
All Executive Magistrates subordinate to the District Magistrate	Their respective jurisdiction
All Commissioners of Police or Police Officers of rank not below that of a Sub-Inspector of Police	Their respective jurisdiction
The Director-General of Mines or Officers subordinate to him	Their respective jurisdiction

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(2) Whenever any officer other than the Chief Controller seizes, detains or removes any explosive or ingredients thereof or any connected documents thereof under this rule, he shall forth with report the fact by telegram to the Chief Controller and the Controller under whose jurisdiction where the explosives were seized falls and whenever any officer not being the District Magistrate seizes, detains or removed any explosives or ingredients thereof or any connected documents threreof under this rule, he shall forthwith report the fact by telegram to the district authority concerned.

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(3) Whenever any explosives are seized they shall be stored up in an isolated place under adequate guard until examination by the Chief Controller Pub or Controller and receipt of instructions from him as to their disposal.

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4) Notwithstanding the above, the Executive Magistrates or Police Officers authorized in the table shall carry out inspection of the magazines located within their jurisdiction once in six months in order to ascertain if there has been any violation of the Act or the rules thereof. An assessment regarding adequacy of security guards provided by the licensee at the magazines as per rule 21(2) should also be made during such inspection. A report of such inspection should be submitted to the concerned District Magistrate or Superintendent of Police or Commissioner of Police with a copy to the licensing authority".

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8. In the present case, the Sub Inspector has conducted a raid and has seized the fire works on the ground that excess quantity of fire work was stored in premises which was situated in a densely populated area. The allegation is also made that requisite quantity of sand, water and fire extinguishers were not found in the licensed premises. From a reading of Rule 128 of the Explosives Rules, 2008 it is very clear that in the event, the Sub Inspector of police has inspected the licensed premises, the officer was required to report the fact as provided under Rule 128(2) of the Explosives Rules, 2008 to the District authority concerned. A perusal of the material on record would go to show that no such exercise has been done in the present case. The explosives found in the licensed premises were also not stored in an isolated place as provided under Rule 128(3) of the Explosives Rules, 2008. On the other hand, the premises were locked down and a case has been registered against the license holders for the aforesaid offences. No action has been taken for the purpose of revocation / cancellation of license which the petitioners held.

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9. From the material available on record, it is very clear that there are no sufficient ingredients so as to invoke offences punishable under Sections 285 and 336 of IPC against the petitioners. The competent authority who has issued license under the provisions of Explosive Rules, 2008 is required to carryout inspection of premises for issuing license and he is also required to verify whether necessary precautionary steps have been taken and it is only then the license can be issued under the Explosives Act and Rules framed there under. Therefore, it is not open for the Sub Inspector to register a case against the license holders on the ground that premises are situated in a densely populated area. The Sub Inspector of Police would have prepared a report and forwarded the same to the concerned District authority to take appropriate action either for revoking license or for cancelling the same, but cannot register a criminal case for the said ground against the licensee. Except the offences punishable under Sections 285 and 336 of IPC, the other offences alleged against the petitioners are non cognizable offences. Undisputedly, the Investigating Officer has not complied the requirements of Section 155(2) of Cr.P.C, in the present case.

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10. In the case of STATE OF HARYANA vs BHAJANLAL 1992 Supp. (1) SCC 335 the Hon'ble Apex Court has held that when the allegation in the first information report and other material, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of Code, except under an order of Magistrate within the purview of

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Section 155(2) of Code, the power under Section 482 of Cr.P.C, needs to be exercised by the High Court.

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11. Under the circumstances, I am of the opinion that the impugned criminal proceedings is allowed to continue would amount to abuse of process of law. Accordingly, the criminal petitions are allowed.

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In Crl.P.No.200304/2024, the entire proceedings in Crime No.201/2023 registered by Kalaburagi Chowk Police Station, for the offences punishable under Sections 285, 336 of IPC and Section 9B of Explosives Act, 1884 R/w Rule 74, 83, 127 of Explosives Rules, 2008 is quashed.

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In Crl.P.No.200307/2024, the entire proceedings in Crime No.198/2023 registered by Kalaburagi Chowk Police Station, for the offences punishable under Sections 285, 336 of IPC and Section 9B of Explosives Act, 1884 R/w Rule 74, 83, 127 of Explosives Rules, 2008 is quashed.

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In Crl.P.No.200309/2024, the entire proceedings in Crime No.194/2023 registered by Kalaburagi Chowk Police Station, for the offences punishable under Sections 285, 336 of IPC and Section 9B of Explosives Act, 1884 R/w Rule 74, 83, 127 of Explosives Rules, 2008 is quashed.

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In Crl.P.No.200316/2024, the entire proceedings in Crime No.206/2023 registered by Brahmapur Police Station, for the offences punishable under Sections 286, 336 of IPC and Section 9B of Explosives Act is quashed.

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In Crl.P.No.200317/2024, the entire proceedings in Crime No.197/2023 registered by Kalaburagi Chowk Police Station, for the offences punishable under Sections 285, 336 of IPC and Section 9B of Explosives Act, 1884 R/w Rule 74, 83, 127 of Explosives Rules, 2008 is quashed.”

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10. So also, in Harish Babus’s case supra, this Court

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held as under:

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“Heard Sri. B.S.Prasad, learned counsel appearing for the petitioner and Smt. K.P.Yashodha, the learned HCGP appearing for the respondents.

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2. The petitioner is before this Court, seeking for

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the following prayer:

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"Wherefore it is humbly prayed that this Hon'ble Court may be pleased quash the entire proceedings pending against the petitioner registered by the respondent No.1 police in the file of the Court of Prl.District and Sessions Judge, Shivamogga in SC.No.766/2021 for the offences punishable under Sections 9 B(1)(b) of Explosive Act 1884, Section 3(1) 44(2) of Karnataka Minor Mineral Concession Rule 1994 and Section 3 & 4 of Explosive At by allowing the petition filed by the petitioner in the interest of justice and equity."

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3. The learned counsel appearing for the petitioner would submit that the issue in the lis stands covered by the judgment rendered by this Court in the case of SMT. SHILPA Vs. THE STATE OF KARNATAKA , this Court has held as follows:

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"The petitioner is before this Court calling in question the proceedings in Spl.C.No.766/2021,

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registered for offences punishable under Sections 9B(1)(b) of Explosive Act, 1884, Section 3(1), 44(2) of Karnataka Minor Mineral Concession Rule, 1994 and Section 3 and 4 of Explosive Substance Act, 1908.

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2. The learned counsel appearing for the petitioner submits that the issue in the case at hand stands covered by the judgment rendered by the Coordinate Bench of this Court on similar set of facts interpreting the very offences that are alleged against the petitioner. The Co-ordinate Bench of this Court in the case of Crl.P.No.7634/2016 disposed on 14.06.2017, has held as follows:

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"The brief factual matrix that emanate from the record are that, the Police Sub-Inspector attached to Malebennur Police Station, was directed by the Deputy Superintendent of Police, Davangere Taluk, to investigate a particular case. As per the said direction, it is said that on 17.07.2015, the Deputy Superintendent of Police received a credible information that within the jurisdiction of Davanagere Rural Police Station near Aluru village, some persons are running stone quarry and they are using explosives like detonators, Ammonium Nitrate etc. for the purpose of exploding the stones without there being any authority, licence or permission from the Government. On the basis of such information, the Police Sub Inspector collected the panchwitnesses, went to the spot and found that stone quarry was running and one Shivanna @ Post Shiva Kumar (petitioner), was blasting the stones by using detonators and other explosive substances. In the presence of panchwitnesses, it appears, he conducted panchanama and collected the materials used for explosion and came back to the Police Station and thereafter registered a case in Crime No.248/2015 under Section 9B(1)(b) of the Explosive Act, 1884, Section 3(a) of Explosive Substance Act 1908, Section 21 of MMRD Act, Sections 42 and 44 of KMMC Rules 1994 and Sections 379 and 420 of IPC and handed over the investigation to the Police SubInspector, Law and Order, Davanagere Rural Police Station.

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3. The above said proceedings are questioned before the Court on two grounds, viz., (i) The offence under Section 9B(1)(b) of the Explosive Act, 1884, is a non-cognizable offence and the police officer has no jurisdiction to investigate any offence which is non-

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cognizable without taking permission of the Magistrate as per Section 155(2) of the Code of Criminal Procedure. (ii) Subsequently on 20.07.2015, Police Sub Inspector has made a request to the jurisdictional Magistrate to incorporate other offences under Section 3(a) of Explosive Substance Act, 1908, Section 21 of MMRD Act and Sections 42 and 44 of KMMC Rules, 1994 and Sections 379 and 420 of the Indian Penal Code. If the police have to incorporate these offences, they should not have investigated the matter without registering the case under those provisions, which are said to be cognizable offences. On the aforesaid two grounds, the proceeding is illegal and the same is liable to be quashed.

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4. There is no doubt that when a police officer receives an information with regard to a cognizable offence, then there is no need for the police officer to take any permission from the Magistrate under Section 155(2) of Code of Criminal Procedure. However, if the information is only with reference to a non-cognizable offence and police officer wants to investigate the matter, then it is mandatory under Section 155(2) of the Code that the police officer shall refer himself to the Magistrate and take permission for the purpose investigating the matter.

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5. The law also mandates under Section 155 of Cr.P.C. that, the procedure should be followed by the Investigating Officer before referring the complainant to jurisdictional Magistrate for permission . It says,-

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“When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.”

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Sub-clause (2) of Section 155 says that,-

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“No police officer shall investigate a noncognizable case without the order of a Magistrate having power to try such case or commit the case for trial.”

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Coupled with the above said provision, if Section 154 of Cr.P.C. is read, which also indicates that,-

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“ Information in congnizable cases ,- Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”

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6. On perusal of the above said two provisions, it is mandatory on the part of the police that whether it is cognizable offence or non-cognizable offence, if the information is received by the police, there shall be a record of the same by recording information in specific registers kept in the police station and then if it is cognizable offence, the police officer can straight-a-way investigate the matter only after registering the case. If it is non-cognizable offence, the police have no jurisdiction to investigate the matter without the permission of the jurisdictional Magistrate. If the said provisions are applied to the present case on hand, the information received by the Deputy Superintendent of Police is with reference to non-cognizable offence and the Deputy Superintendent of Police neither himself could have investigated the matter without the permission of the jurisdictional Magistrate, nor directed any of his subordinate to investigate. Further, if the information received amounts to or involves cognizable offence, as noted in the letter dated 20.07.2015, that should not have been investigated by going to the spot, collecting materials and drawing-up of mahazars, which are all part of investigation. That has been done in this particular case and thereafter, the police have registered a case. Therefore, the entire procedure that has been followed by the Investigating Officer viz., the Sub-Inspector of police of Malebennur and the subsequent proceedings by the PSI Rural police, Davangere, are hit by Sections 154 and 155 of Cr.P.C. Therefore, such proceedings are liable to be quashed.

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7. Time and again, this court has passed such orders quashing the proceedings wherever the police officers have been committed mistakes in not referring the complaint or not taking permission from the jurisdictional Magistrate while investigating the matter cognizable offences. In spite of various decisions having

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been rendered by this court, it appears no proper steps have been taken by the police department to direct the Investigating Agencies, who are in the helm of affairs to set right the above deficiency in the investigation. Therefore, I feel it just and necessary to direct the Director General of Police to take appropriate steps in this regard to enlighten all the Investigating Agencies so that they can in future avoid such initiation of proceedings and investigate the matter without properly following the procedure as contemplated under Sections 154 and 155 of Cr.P.C. Even after taking such steps by the Director General of Police by means of properly issuing circulars and appropriate notifications, if any police officer, in spite of such instructions/notifications/circulars, follows the same crude method of procedure, in violation of the provisions noted above, then the Competent Authorities have to take appropriate action against such erring officers so as to curb such illegal procedures being followed by the police officers.

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8. The Registry is hereby directed to send a copy of this order to the Director General of Police with for compliance, a direction to intimate this court about the steps taken.

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9. With the above observation, I proceed to pass the following:

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ORDER

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The petition is allowed. Initiation of the proceedings against the petitioner-Shivanna @ Post Shiva Kumar, in Crime No.248/2015 under Section 9(B)(1)(b) of Explosive Act, 1884, Section 3(a) of Explosive Substance Act, 1908, Section 21 of MMRD Act, Sections 42 and 44 of KMMC Rules 1994 and Sections 379 and 420 of IPC dated 17.07.2015 and all further proceedings are hereby quashed."

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3. Learned HCGP would not dispute the position in law. Therefore, for the reasons rendered in Crl.P.No.7634/2016, the present petition also deserves to be allowed.

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4. For the aforesaid reasons, the following:

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ORDER

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Criminal Petition is allowed.

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ii. Proceedings in Spl.C.No.766/2021, pending on the file of the Principal District and Sessions Judge, Shimoga, stand quashed."

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4. In the light of the issue standing covered by judgment rendered by this Court and the facts being undisputed, the petition stands disposed on the same terms.”

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