PERUMAL Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners are the two accused in Crime No. 109/2012 of Vazhikkadavu Police Station, Malappuram District. The offence alleged is under section 5 of Explosive Substances Act. Petitioners have been in custody since 08.07.2012. Hence they request for bail. It is alleged that on 08.07.2012 at 10.00 p.m., when the lorry KA-05-AB-6258 was intercepted and examined by the Police officials, the said lorry was found to contain 340 bags, each bag containing 50 kilograms of Ammonium Nitrate. The petitioners were the driver and cleaner then seen in the said lorry. The total weight of the Ammonium Nitrate was found to be 17,000 kilograms. The lorry with Ammonium Nitrate, was seized. During investigation it was revealed that though the Ammonium Nitrate was brought in the name of an establishment called Alungal Chemicals, it was actually brought by one Ismail S/o. Ibrahimkutty. His address and other particulars are seen mentioned in the Case Diary.

(2.) The learned counsel for the petitioners vehemently argues that the Way Bill and Consignment Note were produced and that those two documents alone were/are sufficient to transport Ammonium Nitrate. It is further argued with vehemence that Ammonium Nitrate does not even require a license under the Explosives Act or Rules and that the Purchase Bill and Way Bill/Consignment Note alone were required and since the Way Bill/Consignment Note was produced, the Police Officer had no authority to seize Ammonium Nitrate. Argument further proceeds that no offence has been committed by the accused and if at all, there was only violation of the provisions of Explosives Act or Rules which would attract only a bailable offence and as such the detention is illegal.

(3.) In support of that argument, the copies of the Way Bill/Consignment Note have been produced. The name of the Consignee is shown in those bills as Alungal Chemicals, Door No: 9/57 B, Vazhayoor East, Malappuram District. It was contended that Ammonium Nitrate was brought here to be used for making fertilizers. The learned counsel has also relied upon the certificate of registration issued in the name of K. Ismail, Alungal Chemicals, mentioned earlier, to show that he was permitted to import or bring Ammonium Nitrate, Ammonium Chloride etc. That is only a Sales Tax Registration Certificate. Clarificatory notification, dated 4.8.2011, stated to have been issued by the Chief Controller of Explosives and another notification dated 27.3.2009, stated to be have been issued by Deputy Chief Controller of Explosives have also been relied upon by the learned counsel to fortify his submission that Ammonium Nitrate per se is not an explosive and it does not require any license under the Explosives Act and that till Ammonium Nitrate Rules are finally notified, the "Ammonium Nitrate is not attracting the provisions of the said Rules or Explosives Rules, 2008". Another notification dated 5.7.2012 issued by the Deputy Chief Controller of Explosives also has been relied upon where it is stated that the draft Ammonium Nitrate Rules were published on 16.9.2011 and final Ammonium Nitrate Rules are yet to be published and hence as on date the Ammonium Nitrate Rules have not come into force and as such no license is obligatory for the possession, sale, use etc of any quantity of Ammonium Nitrate.