TMI Blog2014 (9) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... king into consideration of the condition of the Fire Works Industry and the problems of the workers in toto. Our Country is facing threats from extremists, fundamentalists and other outfits/organizations endangering safety and security of the nation and lives of the people. We don’t know in which way, form, shape, method danger would appear and destroy. Therefore, we should not give any room or avenue or loophole for dangerous things to happen. Unless our borders/entry points are made fool proof by installation of advanced mechanism, there is no respect for the patriotism exhibited by our brothers, viz., Army men, who are fighting not only against enemies but also against odd weather in Kargil, Siachin and in other borders. Considering the lapse of the police even in this type of important and serious case and seizure of illegal Chinese crackers in various states, it is desirable and appropriate to transfer the case to CBI. Even if the investigation is over, the case shall be transferred to CBI, which shall re-investigate the case and proceed in accordance with law. - W.P. (MD) No. 8457 of 2014 - - - Dated:- 25-9-2014 - N. Kirubakaran and S. Vaidyanathan, JJ. Shri S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. However, the complaint was lodged only on 17-5-2014 and FIR was registered on the same date. Though police authorities were present there, they did not take any step as per Explosives Rules; The higher authorities, regarding the inspection and seizure of the Chinese crackers, should have been informed by the Assistant Magistrate (Tahsildar) and take necessary steps to lodge a complaint with the police; The Deputy Chief Controller of Explosives also did not take any action regarding the availability of Chinese crackers by having further search; Though the officials inspected the place on 14-5-2014, the case was registered only on 17-5-2014 belatedly. Complaining inaction on the part of the respondents-authorities regarding seizure of Chinese crackers and non-compliance of the Explosive Rules, the petitioner has approached this Court, seeking a direction to enforce the circular and hand over the investigation to CBI. 4. Mr. S.M. Anantha Murugan, learned counsel appearing for the petitioner, would submit that prohibited Chinese crackers which were imported contrary to the rules were seized and no necessary action was taken by the respondents; seizure of Chinese crackers would sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sending them to Laboratory. 9. Mr. Gupta submitted that the Chief Controller of Explosives, Petroleum Explosives Safety Organization on 15-4-2010, addressed the Commissioners of Customs warning about clandestine import of fire crackers through out the country and asked them to be vigilant to prevent unauthorized import of fire crackers in the interest of public safety. Hence, this Court directed the Chief Commissioner of Customs, Chennai, to file a report about the actions taken by the Customs authority after receipt of the above said communication dated 15-4-2010. 10. The police authorities, who were present before this Court, were informed about the need to alter the F.I.R. and the necessity to include the provisions under Explosives Substances Act also. Accordingly, police authority assured that they would alter FIR and produce the amended FIR, the very next day. 11. The learned counsel appearing for the petitioner produced a few crackers in the open Court. The official attached to Deputy Chief Controller of Explosives examined them and said they were of foreign origin. He shocked everybody stating that those crackers may explode at any time, as they were friction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported; the person who is holding the license to import Explosives should follow Rule 45 of Explosive Rules, 2008 and the explosives cannot land in India without prior permission of the Chief Controller of Explosives and the Central Government. The Explosive Substances Act and the Rules have been framed only in the interest of the Country. 18. As proved by various notifications and particulars submitted before this Court by various departments, fireworks in India is declared as restricted items under ITC (HS) 36.04.10 by DGFT. PESO has not granted any license for import of fire works till date. In the meeting held on 3-3-2010 by the Joint Secretary Department of Industrial Policy Promotion, the issue of import of Chinese crackers was discussed and it was decided not to support import of Chinese crackers, as the Chinese fire crackers contain chemical substances, which do not conform to statutory Indian Noise Level of 125 DB Standards and contain prohibited chemical substances. Prohibited chemicals, chlorides and penchlorides used in Chinese crackers give more colours and better display but they are highly volatile, friction sensitive, dangerous environmentally, hazardous an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished in the newspapers on 15-5-2014, 16-5-2014 and 17-5-2014. Therefore, the contention of the Police that no one came forward to give information, is false. That apart, the Manufacture of Crackers Association, viz., Tamil Nadu Fire Works Amorces Manufactures Association (R15), already gave a complaint to the local police on 15-5-2014, which is evident from the CSR dated 15-5-2014 given by the Sivakasi Town Police. It only proves the falsity of the contention of the police authorities. 22. Though the authorities seized the Chinese crackers on 14-5-2014, no steps were taken to get statement from the accused or to arrest him. No effort has been taken to find out the distributor, the importer and others involved in this case and find out the origin. Moreover, the case has been registered only under Section 9(B)(1)(b) of the Explosives Act r/w Rule 10(2) of Explosives Rules, 2008. Though the case attracts offences under Sections 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 9(B)(1)(a) of the Explosives Act, the said Sections were not included in the FIR. Only when this Court pointed out, the police had chosen to alter the FIR, incorporating above Sections there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I), seized illicit imported firecrackers at Kurukshetra, Haryana and Ranipet in Tamil Nadu. Moreover the DRI alert Circular No. 5 of 2014, dated 24-4-2014 has been issued warning about smuggling of fire works / fire crackers from China by way of mis-declaration and concealment right from 2010 onwards. Though the Chief Controller of Explosives through communication dated 13-5-2012 addressed all the Commissioners of Customs, viz., New Delhi, Chennai, Mumbai and Kolkata, informed about the clandestine import of prohibited Chinese crackers by mis-declaration, the Chief Commissioner of Customs, Trichy, represented by learned counsel, Mr. Vijaya Karthikeyan, Senior Standing Counsel, would submit that the said letter did not reach Trichy Commissioner of Customs. He would further state that the said letter was addressed only to Commissioner of Customs, Chennai (16th respondent herein) and the Trichy Office got separated from Chennai office. It only denotes that even a national important communication issued by the Deputy Chief Controller of Explosives did not reach the appropriate authorities properly and it further proves lack of coordination among various government agencies. There is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are assessed and examined or are facilitated without assessment and examination. This is due to the fact that more than nine thousand Bills of Entries are filed across the Country every day and almost 50% of them are facilitated i.e., neither assessed nor examined. Further, in case of majority of consignments that are examined, only 10% of the goods are subjected to examination. 7. I submit that on an All India Basis, the Customs Department has already installed state of art Mobile Gamma Ray Scanners and fixed X ray Scanners at Jawaharlal Nehru Port Trust, Navasheva, Raigad, Maharashtra. Recently, the Mobile Gamma Ray Scanner was launched at Tuticorin Port on 4-4-2014. The Department is in the process of installing Mobile and Fixed X ray scanners at Chennai, Mumbai, Kandla, Tuticorin and at various other ports, which will curb the illicit imports through concealment or mis-declaration. 1. Therefore, more mobile Gamma Ray Scanner and fixed Ray Scanner, which will help to detect prohibited items like Arms, Ammunition, Weapons, Chinese fire works and other contraband can be detected, shall be installed in all ports. 29. The Customs authorities submitted that there has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d about the availability of prohibited imported fireworks. It is seen from the Internet materials produced that the following persons advertised themselves as importers of crackers, viz., Business Type Address : : Importers 2-q-4 Talwandi, Kota, Rajasthan, India Business Type Address : : Importers 60 Paramanand Ind. Soci., Udhna Magadalla Road, Udhna Surat - 394210 Gujarat, India Business Type Address : : Importers 32, Sivan Kovil Street, Vijayapuram, Tiruvarur Tamil Nadu, India Business Type Address : : Importers P. No. 59 Sivanagar, Sivakasi, Tamil Nadu, India Business Type Address : : Importers 11th Street, 2nd Phase Basni, Jodhpur, Rajasthan, India. Business Type Address : : Importers Subhashpura, Rajasthan, India Business Type ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct raids throughout India and seize under Rule 128 all the Chinese crackers wherever they are found and destroy them as per Rule 129 of the Explosive Rules. The Central Government by notification vide G.S.R. No. 64(E), dated 27-1-1992 prohibited the manufacture, possession and importation of any Explosives containing Sulphur or Sulphurate in admixture with Chlorate, Perchlorate of Potassium or and other Chlorate, which are friction sensitive can ignite and explode spontaneously with combustible materials. Hence they are not acceptable under Indian noise level standards as per the notification No. GSR 682(E), dated 5-10-1999. It is reported in the Chinese newspaper itself that half of all Chinese fire works do not meet basic quality standards and 36.7 per cent Fire works failed the inspection due to too short or too long blasting fuses which could potentially explode and cause injury to the persons. It was found that banned inflammable or explosive chemicals are used in making the fire works. It is also reported in The Guardian dated 1-2-2013 that a truck carrying Chinese fire works got exploded destroying an express bridge in Central China killing many people. 34. It is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwith identified; raid their places, seize the crackers, destroy them as per the procedure and initiate criminal proceedings by registering F.I.Rs and arrest them forthwith. (e) There is no co-ordination among the various departments and agencies of the Central Government and State Governments even in preventing the smuggling or illegal import of prohibited items including Chinese crackers. (f) Even after seizure of the Chinese Crackers, the State Police has not acted by promptly registering the case, informing about the same Deputy Chief Controller of Explosives in time and sending the samples to them forthwith for laboratory test. (g) Lack of facilities in the ports and airports are revealed as per the admissions made by the Central Government. (h) The need of the hour is installation of drive through containers, scanners or any other advanced scanners so that most of containers could be scanned to rule out arms ammunition, weapons, drugs and any other contrabands/dangerous/prohibited items. (i) If the above systems are installed, it would avoid seizure, registration of case, investigation, arrest, filing of case before this Court and waste of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntalists and other outfits/organizations endangering safety and security of the nation and lives of the people. We don t know in which way, form, shape, method danger would appear and destroy. Therefore, we should not give any room or avenue or loophole for dangerous things to happen. Unless our borders/entry points are made fool proof by installation of advanced mechanism, there is no respect for the patriotism exhibited by our brothers, viz., Army men, who are fighting not only against enemies but also against odd weather in Kargil, Siachin and in other borders. 40. Considering the lapse of the police even in this type of important and serious case and seizure of illegal Chinese crackers in various states, it is desirable and appropriate to transfer the case to CBI. Even if the investigation is over, the case shall be transferred to CBI, which shall re-investigate the case and proceed in accordance with law. The above decision is supported by Apex Court judgment in Rubabbuddin Sheikh v. State of Gujarat and others reported in (2010) 2 SCC 200 and in Gudalure, M.J. Cherian and others v. Union of India and others reported in 1992 (1) SCC 397, in Punjab and Haryana High Court Bar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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