Illyas M And Ors vs State Of Kerala

This is an application filed under Section 438 of Cr.P.C seeking anticipatory bail.

The applicants are accused Nos.1 and 2 in Crime No.404/2020 of Malappuram Police Station, for having allegedly committed offence punishable under Section 4 of the Explosives Substances Act.

The prosecution case, in brief, is that on 29.07.2020, while the police officers of the Malappuram Police Station were on patrol duty, they got information that unauthorized quarrying operation was being conducted in the property belonging to the 1st accused. They reached the property and it was seen that 180 non-electric detonators, 68 bundles of fuse coil, 25 electronic detonators and 8 other detonators and 3 iron rods and one JCB were used in the property for the purpose of quarrying. The crime was registered and the applicants proceeded against.

The applicants state that they are innocent and the allegations are not true. It is admitted that the property belongs to the 1st accused but he was not conducting quarrying activities in that property. He had leased out the property to another person named Aboobacker as per Annexure II agreement and in that agreement it is specifically stated that the quarrying of the lease in the property shall be conducted only in accordance with law after obtaining due licence. If the lessee of that property has not obtained a license for carrying out his activities, the applicants cannot be held responsible for the purpose that he has already handed over possession of that property to another person. That apart, it is also submitted by the applicants that the 1st accused is a license holder and he has an explosive license seen from Annexure I produced by him. Therefore there is absolutely no violation of Section 4 of the Explosives Substances Act by the applicants.

Heard the learned counsel for the applicants and the learned Public Prosecutor.

The learned Public Prosecutor under instructions submits that the 1st accused has the license to store and use the explosive substances at a particular place. The magazine is in a different place and not in the property from where the explosive substances were recovered.

This fact is admitted. There is no evidence regarding the lessee Aboobakcer holding any license for the purpose of quarrying in the place belonging to the 1st accused. The 1st accused has explained all these facts. However, in view of the fact that the 1st accused has an explosive license and that he has also the authority to store the explosive substances in the magazine mentioned in the license, I find that custodial interrogation of the applicants may not be necessary as long as they are willing to co-operate with the investigation.

Hence, the applicants are directed to surrender before the investigating officer and produce all the documents pertaining to the license and also the lease so that the investigating officer can go through the veracity of those documents. They shall surrender within two weeks, and after interrogation in the event of their being arrested, they shall be released on bail on execution of bonds for Rs.50,000/-(Rupees Fifty thousand only) each with two solvent sureties for the like amount each to the satisfaction of the investigating officer and on the following conditions;

i. They shall not tamper with evidence, influence or intimidate witnesses.

ii. They shall appear before the investigating officer as and when called for.

iii. They shall not get involved in similar offences during the bail period.

In the event of violating the bail conditions, the prosecution shall be at liberty to apply for cancellation of bail before the jurisdictional court.