AMMONIA NITRATE IS NOT EXPLOSIVE - NO LICENCE IS NEED.

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Criminal Petition No.3334 of 2010

26-04-2010

O. Sudheer Reddy and another

State, by Sub Inspector of Police, Talupula

Police Station, rep. PP

Counsel for the Petitioners : Sri O.Manohar Reddy Counsel for the 1st Respondent: Public Prosecutor :ORDER:

The petitioners 1 and 2/accused Nos.1 and 2 are accused of offence punishable under Section 9B of the Explosives Act, 1884. It is a case of possession of Ammonium Nitrate by the petitioners, as per Panchanama dated 20.03.2010. There is no dispute that the petitioners do not possess any licence for possessing the said Ammonium Nitrate, under the provisions of the Explosives Act. According to the prosecution allegations, the said Ammonium Nitrate is meant for use in blasting boulders in stone crusher. The question is whether possession of Ammonium Nitrate without licence under the Explosives Act attracts liability under Section 9B of the said Act. According to the petitioners' counsel, Ammonium Nitrate though an essential item in the explosion process along with other chemicals, Ammonium Nitrate by itself is not an explosive material and that it is not a notified material under the Explosives Act requiring licence for possession thereof. The petitioners filed copy of letter addressed by the Deputy Chief Controller of Explosives, Hyderabad working in the department of Explosives, Government of India dated 12.06.2003. The said letter was addressed to one M. Jaya Ramulu of Ananthapur. In that letter, the Deputy Chief Controller of Explosives, Hyderabad informed the addressee that storage, sale and transportation etc., of Ammonium Nitrate do not attract provisions of the Explosives Act, 1884 and the rules framed there under and that hence, no licence is obligatory for the same under the said rules.

Further, this Court in order dated 07.07.2008 in Criminal Petition No.3565 of 2008 quashed FIR relating to offence punishable under Section 9B(1)(b) of the Explosives Act on the ground that the then Public Prosecutor after obtaining instructions reported before the Court that Ammonium Nitrate is not an explosive.

Now it is contended by the Additional Public Prosecutor that though Ammonium Nitrate is not an explosive, in this case, the said Ammonium Nitrate is meant for the purpose of using the same in blasting boulders in stone crushers. End user of Ammonium Nitrate is not material in this case. The only simple question here is whether possession of Ammonium Nitrate simplicitor without licence is an offence. Having regard to above discussion of the subject, inevitable answer for the said question is in the negative. Hence, the petition is allowed quashing FIR in Crime No.17 of 2010 of Talupula Police Station, Anantapur District relating to offence under Section 9B of the Explosives Act, 1884.

____________________________________

SAMUDRALA GOVINDA RAJULU,J.

Date:26.04.2010.

Note:

L.R. Copy to be marked.

//By order//

Gk.

HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

CRL.PETITION NO.3334 OF 2010

Date: 26.04.2010

Gk.

L.R. Copy to marked

____________________________________

SAMUDRALA GOVINDA RAJULU,J.

Date: .04.2010.

HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

CRL.PETITION NO. OF 2010

Date: .04.2010

Gk.

Case No. 3612 of 2010

This petition is filed by the 4th accused under Section 482 Cr.P.C. for quashing proceedings in C.C.No.512 of 2009 on the file of Judicial Magistrate of the First Class, Kama Reddy, Nizamabad District relating to offence punishable under Sections 27 (d), 27( c ) and 22(3) of the Drugs and Cosmetics Act. The Drugs Inspector, Kama Reddy filed complaint before the lower court against A-1 to A-4. A-1 is M/s. Sri Mallikarjuna Medical and General Stores, B.B. Pet village, Dhoma Konda Mandal. A-2 is Managing Partner of A-1. A-3 is Partner of A-1. A-4 is Partner and Registered Pharmacist of A-1. Subject drug in this case is Primolut-N sample. When the sample drug was sent to Government Analyst, Analyst Drugs Control laboratory, Hyderabad for analysis, it was found to be of standard quality. Thereupon control sample of the drug was sent to the Manufacturer who gave report to the effect that the subject drug was spurious in nature as it was not manufactured by them. Therefore, the Drugs Inspector, Kama Reddy launched prosecution against A-1 to A-4. The only point urged by the petitioner's counsel in this case is that A-4 being a Partner and not Managing Partner of A-1 shop and since A-4 was not even present in the shop when the Drugs Inspector inspected the shop and obtained samples, A-4 cannot be impleaded as one of the accused for prosecution against A-1 firm. He placed reliance on decision of this Court in Thumu Venkateswara Reddy v. State of Andhra Pradesh1 wherein it was held by this Court as follows: "Having regard to the above reported decisions of the Supreme Court as well as this Court, the field is not left to open to the prosecution to contend otherwise. Therefore, I find that the petitioners viz., A-3, A-4 and A-6 who are mere partners of A-1 firm and who have nothing to do with manufacturing process cannot be impleaded in the complaint for punishing them". In the said reported decision, A-3, A-4 and A-6 were mere partners of A-1 firm and they had nothing to do with manufacturing process of the subject Drug therein. So this Court came to the conclusion that they cannot be impleaded in the complaint for punishing them. But, in the case on hand, A-4 is not only a partner but also a registered Pharmacist of A-1 shop. Without there being a registered pharmacist, present in the shop, no medical business can be transacted in that shop. Therefore, A-4 being registered Pharmacist cum partner of A-1 firm, A-4 is a person involved in day-to-day medical business of A-1 firm. In that view of the matter, the above reported decision cannot be applied to facts of this case. In case, a partner is also a registered Pharmacist of the firm doing medical business, then such partner is invariably liable to be prosecuted along with the firm and Managing Partner and other partners who are responsible for day-to-day running of business therein. Hence, the petition is dismissed.

?1 2010 (1) ALD (Crl.) 195 (AP)