S MATHESWARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) OWNERS of the respective lorries on which compressed gas was being transported on the relevant day (November 19, 2010) are the petitioners in these petitions filed under Section 482 of the Code of Criminal Procedure (for short, "the Code"). Prosecution case is that on the said day at different times the Karunagappally/Kottiyam Police checked the said vehicles and found that the vehicles were carrying compressed gas but, there was no second driver/cleaner (as the case may be) in the said vehicles at the relevant time as mandated by Rule 81(9) of the Explosives Rules, 1983 (for short, "the Rules") which is made punishable under Section 9B of the Explosives Act (for short, "the Act"). Thereon the Station House Officers of the Police Stations concernedregistered Annexure-B, FIRs against owners and drivers of the said vehicles and the safety officers for alleged violation of Rule 81(9) of the Rules and commission of offence under Section 9B of the Act. Annexure-B, FIR in the respective cases are called in question in these proceedings. Learned counsel for petitioners (owners of the vehicles) contend that Annexure-B, FIRs in these proceedings are misconceived in that the officers concerned have registered the cases based on a non-existentRule. Further contention is that as seen from Annexure-A, licence issued to the respective owners (petitioners), it is not the Explosives Rules which applied to transportation of compressed gas but, it is Rule 42 of the Static and Mobile Pressure Vessels (Unfired) Rules, 1981.

(2.) I have heard learned counsel for petitioners and the learned Public Prosecutor. Learned Public Prosecutor submitted that assuming the argument advanced by the petitionersto be correct, the matter is at the stage of investigation and it is open to the Investigating Agency to ascertain what exactly is the offence if any committed notwithstanding the nature of offence mentioned in Annexure-B, FIRs and hence interference at this stage is no warranted.

(3.) PRESENTLY, I am only concerned with the question whether any offence under Rule 81(9) of the Rules (of 1983) read with Section 9B of the Act is made out. As stated, officers concerned have proceeded on the assumption that the Rules (of 1983) remain in force even as on the day of the alleged incident and there is violation of the said Rules (of 1983) which obviously cannot stand since the Rules (of 1983) has been superseded by the Explosives Rules, 2008. Hence, there could be no violation of Rule 81(9) of the Rules (of 1983) as on the date of alleged incident and consequently no penalty as prescribed under Section 9B of the Act is attracted. To that extent, Annexure-B, FIRs in these cases cannot stand.