Partly allowed

Ummer v. State of Kerala

Kerala HC23 Mar 2023Bail Appl./486/2023

Case brief

AI extract

What is this about?

In a bail application under Section 438 CrPC regarding unlicensed possession of explosives, the High Court granted anticipatory bail to the first accused with conditions but rejected the application of the second accused due to established prima facie complicity in storing large quantities of explosives without a valid license.

What did the court decide?

First accused granted anticipatory bail on bond for Rs. 30,000 and conditions including cooperation and surrender; Second accused's bail dismissed.

Ummer Vs State of Kerala — Bail and Remand | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945

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BAIL APPL. NO. 486 OF 2023

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CRIME NO. 1263/2022 OF MALAPPURAM POLICE STATION

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AGAINST THE ORDER/JUDGMENT IN CRMC 1408/2022 OF DISTRICT COURT&

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SESSIONS COURT,MANJERI

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PETITIONER/ACCUSED NOS. 1 AND 2:

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1 UMMER

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AGED 60 YEARS

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S/O. MOHAMMED HAJI, AGED 60 YEARS, KAPPOOR
HOUSE,MELMURI POST, ERANAD TALUK,
MALAPPURAM DISTRICT, PIN - 676517
2ABDUL MAJEED
AGED 50 YEARS

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S/O. AHAMMED, AGED 50 YEARS,
PANDARA ARAKKAL HOUSE, N K PADI,
KODUR POST, PERINTHALMANNA TALUK,
MALAPPURAM DISTRICT, PIN - 676504
BY ADV K.RAKESH

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RESPONDENT/STATE:

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1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI, PIN - 682031

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2THE STATION HOUSE OFFICER
MALAPPURAM POLICE STATION,
MALAPPURAM DISTRICT, PIN - 676505
BY ADV PUBLIC PROSECUTOR

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OTHER PRESENT:

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P G MANU SR.PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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BAIL APPL. NO. 486 OF 2023

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ORDER

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Dated this the 23^rd day of March, 2023

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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.

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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.

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The prosecution allegation is that, at 15.00 hours on 15.12.2022, the 2^nd 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

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which are meant for quarrying operation in the property owned by the 1^st accused. Subsequent to recovery of those

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BAIL APPL. NO. 486 OF 2023

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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.

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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 2^nd accused without renewing the license though earlier upto 31.03.2021 the 2^nd 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 2^nd 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.

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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

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BAIL APPL. NO. 486 OF 2023

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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 2^nd accused cannot be released on bail.

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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 2^nd 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.

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As far as the 1^st accused is concerned, in view of the fact that, the 2^nd accused initially had a license, his complicity is on a lesser plat form. Therefore, he can be enlarged on anticipatory bail on conditions.

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Coming back, even reading the license in favour of the 2^nd accused, which was available upto 31.03.2021, the same does not permit Gelatine Stick 144 counts. Most importantly the 2^nd accused not renewed the license so far.

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BAIL APPL. NO. 486 OF 2023

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Therefore, the complicity of the 2^nd accused in this crime is well established prima facie and therefore, custodial interrogation of the 2^nd petitioner is necessary. As such he cannot be released on anticipatory bail.

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Holding so, 1^st accused can be enlarged on anticipatory bail, while dismissing application of the 2^nd accused.

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In the result, bail plea at the instance of the 2^nd petitioner/ 2^nd accused stands dismissed. The petition at the instance of 1^st petitioner/1^st accused stands allowed. The 1^st petitioner/ 1^st accused is enlarged on bail on conditions:

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i. The 1^st petitioner/1^st accused shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question 1^st petitioner/1^st 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.

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ii. On such production, Jurisdictional Court shall release 1^st petitioner/1^st accused on bail, on executing bond

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BAIL APPL. NO. 486 OF 2023

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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.

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iii. The 1^st petitioner/1^st 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.

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iv. The 1^st petitioner/1^st accused shall not, intimidate the witnesses or interfere with the investigation in any manner.

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v. The 1^st petitioner/1^st 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

BAIL APPL. NO. 486 OF 2023

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APPENDIX OF BAIL APPL. 486/2023

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PETITIONER ANNEXURES :

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ANNEXURE ATRUE COPY OF THE LE-3 LICENSE OF THE 2ND
ACCUSED ISSUED BY THE ADM, MALAPPURAM DATED
15-3-2017
ANNEXURE BA 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

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// True Copy // PA To Judge

Ummer v. State of Kerala

Case brief

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What did the court decide?

Ummer v. State of Kerala

Case brief

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What did the court decide?

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