Rajasthan High Court - Jodhpur
Shanker Lal & Anr vs State on 7 December, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Criminal Revision No. 1356 / 2016
1. Shanker Lal S/o Rameshwar Lal Pareek, P.s. Raipur Shahpura,
Distt. Bhilwara.
2. Pramod Kumar @ Maglesh Kumar S/o Bhopal Singh @ Bhopal
Singh, Beed Ka Kheda, Police Station Mandalgarh, Distt. Bhilwara.
----Petitioners
Versus
State of Rajasthan Through the Public Prosecutor.
----Respondent
Connected With
(2) S.B. Criminal Revision No. 263 / 2017
Vishal Vyas @ Monu S/o Virendra Kumar Vyas, By Caste Brahmin,
Resident of House No. 88-89, Patch Area, Bhilwara, District
Bhilwara.
----Petitioner
Versus
The State of Rajasthan
----Respondent
(3) S.B. Criminal Revision No. 336 / 2017
Pawan Kumar S/o Shri Ramniwas Vyas, By Caste Brahmin,
Resident of 88-89, Sri Ram, Patch Area, Bhilwara City Kotwali
Police Station, Bhilwara, District Bhilwara.
----Petitioner
Versus
The State of Rajasthan
----Respondent
(2 of 6)
[ CRLR-1356/2016]
_____________________________________________________
For Petitioner(s) : Dr. Sachin Acharya, Mr. Mridul Jain and Mr.
Bhagat Dadhich.
For Respondent(s) : Mr. O.P. Rathi, PP.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment Date of Pronouncement: __07/12/2017 The accused petitioners have approached this Court by way of these three revisions for challenging the order dated 03.10.2016 passed by the Additional Sessions Judge No.3, Bhilwara in Sessions Case No.06/2012 whereby charges were directed to be framed against the petitioners for the offences under Sections 406, 420 read with Section 120 of the IPC, Section 9B of the Explosives Act, 1884 and Sections 4, 5 and 6 of the Explosive Substances Act, 1908.
Pawan Kumar is a licence dealer of explosives. An FIR No.93/2011 came to be registered against him at the Police Station Sadar Bhilwara with the allegation that 140965 electric detonators were found in his magazine in excess of the stock register and the licencing capacity. The detonators were seized in connection with the said FIR and were entrusted to employees of the licence holder namely Shankar Lal and Manager Pramod Kumar. When the detonators were demanded back from Pramod Kumar and Shankar Lal who were entrusted with the same, they informed that the licence holder Pawan Kumar had illegally sold them to the firm Narmada Explosive, Village Badwa, District Khargon. Since the persons entrusted with the seized explosive (3 of 6) [ CRLR-1356/2016] failed to return and account for the same, an FIR No.170/2011 came to be lodged at the Police Station Sadar, Bhilwara for the offences under Sections 406, 420 read with Section 120 of the IPC, Section 9B of the Explosives Act and Sections 4, 5 and 6 of the Explosive Substances Act with the allegation that the seized explosive detonators were entrusted to Shankar Lal, Pramod Kumar, Pawan Kumar as well as Vishal Vyas (Nephew of Pawan Kumar) who were under an obligation to keep the same safe and sacrosanct but they failed to do so and misappropriated the entrusted explosives. After investigation, a charge sheet was filed against these persons for the offences under Sections 406, 420 read with Section 120 of the IPC, Section 9B of the Explosives Act and Sections 4, 5 and 6 of the Explosive Substances Act. The trial court directed framing of charges against the accused persons in the same terms vide the impugned order dated 03.10.2016 which is challenged by way of these three revisions.
I have heard and considered the arguments advanced by learned counsel representing the respective accused and have gone through the material available on record.
Ex-facie, this Court is satisfied by the argument advanced by the learned defence counsel that ingredients of the offence under Section 420 IPC are not made out from the admitted prosecution case. The highest case of the prosecution if accepted as such only gives rise to the offences of breach of trust and those under the Explosive Act and the Explosive Substances Act. Ex-facie, no material is available on record so as to satisfy this Court that the (4 of 6) [ CRLR-1356/2016] accused persons cheated anyone by their acts or omissions. In view of the above discussion, the impugned order is illegal and liable to be set aside to the extent charge for the offence under Section 420 IPC was ordered to be framed against the accused. Likewise, the accused petitioner Vishal does not appear to be liable for any offence whatsoever. A simple conjecture has been drawn against him that when the inspection of the magazine of Shri Ram Traders owned by Pawan Kumar was carried out, Vishal Vyas was also present there and hence, he too was presumed to have been entrusted with the offending articles seized therefrom. It is relevant to aspersion here that in the seizure memo prepared during the course of earlier FIR No.93/2011, a bald mention was made that the nephew of the licence holder namely Vishal Vyas, muneem and the Manager of the licencee were instructed that the electric detonators were in possession of the police and upon demand being made, they would have to be produced before the police or the court. Vishal Vyas was made to stand as a motbir in the checking proceedings. Other than the fact that he is related to Pawan Kumar, Vishal Vyas was not having any status or connection with the licenced premises which could make him liable to account for the explosives after they were seized and entrusted to the employees of the licence holder. True it is that the investigating officer has mentioned in the seizure memo that Vishal Vyas was also entrusted with the detonators but since he was simply made to stand as a motbir, his deemed status as a person entrusted with the seized goods is not acceptable in facts (5 of 6) [ CRLR-1356/2016] as well as in law. Ex-facie, this Court is am of the firm view that the petitioner Vishal Vyas was not under any obligation or liability towards the magazine operations looking to the nature of his relationship with the licencee. He was by chance present at the magazine during the checking process and was joined as a motbir in the proceedings and as such, the better course of action for the prosecution would have been to cite him as a witness in the present case. Accordingly, I am of the firm opinion that the order passed by the trial court directing framing of charges against the petitioner Vishal Vyas for the above offences cannot be sustained as the same is illegal to his extent. However, other accused persons i.e. Pawan Kumar, the licencee, Shankar Lal his Muneem and Pramod Kumar Manager are undoubtedly liable to face prosecution for the charges framed against them by the trial court except for the offence under Section 420 IPC and the impugned order does not suffer from any illegality, irregularity or perversity to their extent for the remaining offences.
In view of the discussion made herein above, the revision Nos.1356/2016 and 336/2017 are devoid of merit and are hereby rejected. The revision No.263/2017 filed by petitioner Vishal Vyas @ Monu is accepted and the impugned order dated 03.10.2016 passed by the Additional Sessions Judge No.3, Bhilwara in Sessions Case No.06/2012 is quashed and set aside to his extent. He is discharged from all the charges. The trial of the remaining accused shall continue for all the offences other than that under Section 420 IPC.
(6 of 6) [ CRLR-1356/2016] A copy of this order be placed in each file.
Record be returned to the trial court.
(SANDEEP MEHTA)J. tikam daiya/