Navaneetha Krishnan vs The Inspector Of Police on 24 July, 2015

[Cites 36, Cited by 2]

Madras High Court

Navaneetha Krishnan vs The Inspector Of Police on 24 July, 2015

        

 

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 24.07.2015  

CORAM   
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU             

CRIMINAL APPEAL (MD).No.67 of 2015     

1.Navaneetha Krishnan 

2.Edward Jayakumar                      : Appellants/A1 and A2          
                                                                                                                        
Vs.

The Inspector of Police,
Q Branch Police Station,
Madurai 
Crime No.1 of 2008                      : Respondent    
                                                
PRAYER   
         Appeal is filed under Section 374(2) of the Code of Criminal
Procedure against the judgment dated 04.03.2015 made in S.C.No.334 of 2010 on  
the file of the learned 4th Additional District and Sessions Judge, Madurai.

!For Appellant  : Mr.C.Arul Vadivel @ Sekar
                for Mr.G.Bhagavath Singh 
^For Respondent : Mr.K.Chellapandian        
                Addl. Advocate General assisted by 
                Mr.C.Mayilvahana Rajendran  
                Addl.Public Prosecutor

:JUDGMENT

The appellants are the accused 1 and 2 in S.C.No.334 of 2010 on the file of the 4th Additional District and Sessions Judge, Madurai. One Mr.IlangaiNathan @ Nathan @ Rajan @ Chindu @ Ilango @ Sivalingam is the third accused in the case.

2. On the police report filed by the respondent herein, the trial Court framed as many as 6 charges in the case.

Charge Accused Penal Provisions 1 A2 Section 6 of the Explosives Substances Act, 1908 read with Section 120(B) IPC 2 A2 Section 10(a)(iv) and 10(b)(ii) read with Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 read with Section 120(B) IPC 3 A3 under Sections 10(a) (iv) and 10(b)(ii) read with Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 read with Section 120(B) IPC 4 A3 Section 6 of the Explosives Substances Act, 1908 read with Section 120(B) IPC 5 A1 Sections 10(a)(iv) and 10(b)(ii) read with Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 6 A1 Sections 4(a), 4(b) and 5(a) and 5(b) of the Explosives Substances Act, 1908, read with Section 120(B) IPC

3. By judgment, dated 04.03.2015, the trial Court found the accused guilty under all the charges and accordingly, punished them as detailed hereunder:

Accused Conviction under Section Sentence imposed A1 Sections 5(a) read with Section 4(b) of the Explosives Substances Act, 1908 To undergo Rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for 6 months Section 10(b)(ii) of the Unlawful Activities (Prevention) Act, 1967 To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for 6 months 120(B) IPC To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for 6 months A2 6 read with Section 5(a) of the Explosives Substances Act, 1908 To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- each, in default, to undergo simple imprisonment for six months Section 10(b)(ii) of the Unlawful Activities (Prevention) Act, 1967 To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- in default, to undergo simple imprisonment for six months 120(B) IPC read with the Unlawful Activities (Prevention) Act, 1967 and the Explosives Substances Act, 1908 To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for six months A3 6 read with Section 5(a) of the Explosives Substances Act, 1908 To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- each, in default, to undergo simple imprisonment for six months Section 10(b)(ii) of the Unlawful Activities (Prevention) Act, 1967 To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- in default, to undergo simple imprisonment for six months 120(B) IPC read with the Unlawful Activities (Prevention) Act, 1967 and the Explosives Substances Act, 1908 To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default, to undergo simple imprisonment for six months Challenging the same, the appellants have come up with this appeal. The third accused appears to have not filed any appeal and he is undergoing the sentence.

4. The case of the prosecution in brief is as follows:

The Organisation, known as ?The Liberation Tigers of Tamil Ezham? (in short 'LTTE') has been banned in India as per the order of the Central Government in SO 710(E) dated 14.05.2006 and by the Government of Tamil Nadu vide order in G.O.No.400 dated 20.05.2006. The 2nd accused hails from Srilanka, where LTTE was operating. One Mr.Kannan, who is absconding, is also a Srilankan National. According to the final report, the 2nd accused and Mr.Kannan had conspired to help the LTTE operating in Srilanka. Subsequently, there was yet another conspiracy between the accused 1 to 3 to supply raw materials to the LTTE in Srilanka for manufacturing explosives for unlawful activities. Such kind of conspiracy, according to the police report, was hatched one month before 08.04.2008.

5. According to the respondent, in pursuance of the said conspiracy, on 19.03.2008 the second accused purchased chemicals known as, Acetone, Glycerine, Formaldehyde and Di-phenylamine from P.W.15, who was then doing chemical business under the name and style of Mega Chemicals at Laxman Rao Road, Bangalore. The purchased chemicals were filled in sixteen plastic cans (14 black colour cans and 2 white colour cans). The 2nd accused, thereafter, wanted to transport the same safely to Madurai, so as to smuggle the same to Srilanka to supply to the LTTE. For that purpose, he approached the TVS Parcel Service in Bangalore and booked the said consignment of 16 numbers of cans with TVS Parcel Service for transport to Madurai. A sum of Rs.780/- was paid by A2 for the said purpose. The person to whom the goods were to be delivered at Madurai was the third accused. Accordingly, the above 16 cans containing the chemicals were transported in TVS Parcel Service to Madurai. P.W.13 was then a Clerk working in the TVS Parcel service office at Madurai, Chockalinga Nagar. On 17.03.2008, the above consignment reached the Madurai office through the lorry bearing registration No.TN 27 C 6512. Instead of the third accused, on the authorisation given by him, the first accused took delivery of the goods from TVS Parcel Service on 07.04.2008. The first accused thereafter engaged a van bearing Registration No.TN 59 B 0811 at Madurai belonging to P.W.9 for hire. The third accused was also there with the first accused. They told P.W.9 that the plastic cans contained soap oil. They paid a sum of Rs.450/- for hiring the vehicle. Accordingly, the consignment was transported to Sakkimangalam in the said van. P.W.6 - Mr.Pandi is a resident of Samathuvapuram at Sakkimangalam. The third accused is closely related to him. On 07.04.2008, according to him, these accused 1 and 3 had brought the plastic cans containing some chemicals and unloaded the same from the van in front of his house. When P.W.6 enquired them as to what was contained in the cans, the accused 1 and 3 told him that it was soap oil. Believing their words, he allowed the same to be kept in front of his house. But he did not allow them to keep the same inside his house.

5.1. On 08.04.2008, at about 3.00 p.m., P.W.1, the then Sub Inspector of Police, Q Branch Police Station, Madurai, along with fellow policemen, had gone to Sakkimangalam Village in connection with some other work. At that time, he found 16 plastic cans in front of the house of P.W.6. 14 cans were white in colour and two were black in colour. When he opened the same, he found that there were chemicals in all the 16 cans. The first accused was sitting somewhere near the cans. On seeing the police, the first accused attempted to run away. P.W.1, with the help of the other policemen, managed to catch him hold. When enquired, the first accused gave contradictory statements about the cans and their contents. Then, the first accused gave a voluntary confession, which was reduced to writing by P.W.1. In the said statement, P.W.1 disclosed that the contents are chemicals for manufacture of explosives. Then, P.W.1 took sample from the above liquid measuring 250 milli litres and he took 20 grams of powder as sample. Thus, he sealed the samples recovered the same under a Mahazar and took all the cans with the contraband to the police station. At the police station, he produced the first accused to the Inspector of Police along with a report. Ex.P1 is the disclosure statement made; Ex.P2 is the mahazar for the recovery of the above contraband and Ex.P3 is the special report submitted by P.W.1 to the Inspector.

5.2. P.W.28, the then Inspector of Police, took up the case for investigation and registered a case in Crime No.1 of 2008 under Section 120(B) IPC read with Section 10, 13(1)(2) of the Unlawful Activities (Prevention) Act, 1967. Then, he arrested the first accused. He forwarded the FIR and Ex.P3 to the Court and took up the case for investigation. Then, he forwarded the contraband to the Court and forwarded the first accused for judicial remand. On the confession of the first accused, he came to know about the involvement of the other accused.

5.3. On 02.06.2008, at 8.00 a.m., he arrested the 2nd accused Edward Jeyakumar in the presence of the Sub Inspector of Police Mr.Shanmugam and another Sub Inspector of Police Mr.Sangu (P.W.3). He recovered from him a cell phone and a Loyola College Identity Card and also a family card. Then, he brought the 2nd accused to the police station and after completing the legal formalities, he forwarded him to the Court for judicial remand. On 12.06.2008 at 11.00 a.m., he arrested the third accused at Madurai Arappalayam in the presence of a Head Constable and a Grade-I Constable. From him, he recovered a Nokia cell phone and a family card. Then, he forwarded the third accused and the collected records to the Court. The third accused was remanded to judicial custody. Then, he made a request to the Court for sending the samples taken from the contraband for examination and accordingly, it was sent.

5.4. The chemical Analyst gave report stating that the contrabands were Acetone, Glycerine, Formaldehyde and Di-phenyl-amine. These materials are the raw materials for manufacturing explosives. He laid charge sheet against the accused finally. Based on the above materials, the trial Court framed charges as stated above. The accused denied the same.

5.5. In order to prove the case, on the side of the prosecution, as many as 28 witnesses were examined and 29 documents were exhibited, besides 10 material objects. Out of the said witnesses, P.W.1 ? Mr.Sivakumar, the Sub Inspector of Police, has spoken inter alia that on 08.04.2008 at 03.00 p.m., he found the first accused in possession of the above 16 plastic cans containing raw materials for manufacturing explosives substances. P.W.2 ? Mr.Kannan was then working as a Sub Inspector of Police at Q Branch Police Station at Madurai. He had accompanied P.W.1 at the time when P.W.1 seized the contraband. He has spoken to the said facts in a vivid fashion. P.W.3 ? Mr.Sangu is yet another Sub Inspector of Police attached to Q Branch Police Station. He is also said to have accompanied P.W.1, at the time when P.W.1 seized the contraband. He has also vividly spoken about the arrest of A1. P.W.4 has spoken about the observation mahazar prepared at the place of occurrence. P.W.5 was the Village Administrative Officer of Madurai Thondaimanpatti Village. He has spoken about the recovery of the contraband, on 08.04.2008 in front of the house of P.W.6 by the police. P.W.6 ? Mr.Pandi is a relative of the third accused. He has spoken to the fact that 16 cans were brought in a van by the accused 1 and 3 and they were kept in front of the house representing that it was soap oil. He has further stated that they were later on seized by the police. P.W.7 is a neighbour of P.W.6. He has spoken to the fact that the cans were unloaded in front of the house of P.W.6. P.W.8 is also a neighbour and he has also spoken to the very same fact. P.W.9 is the Driver of the van bearing registration No.TN 59 B 0811. According to the prosecution case, it was only in this van, the cans containing contraband were brought to the house of P.W.6. He has identified the first accused, but he has not identified the second accused.

5.6. P.W.10 is the mother of the first accused, who has turned hostile and she has not supported the case of the prosecution in any manner. P.Ws.11, 12 and 13 have also turned hostile and they have not stated anything incriminating against any of the accused. P.W.14 is the then Security Officer working in the TVS Parcel Service at Madurai. He has spoken about the recoveries of the records from the said Office. P.W.15 is the one from whom, it is alleged that the accused No.2 had purchased the chemicals. He has vividly spoken about the same. P.W.16 ? Manoj Kumar is a relative of P.W.15, who was also present in the shop at the time when the 2nd accused purchased the chemicals. P.W.17 was then working as a Professor in Loyola College, Chennai. He has stated that the 2nd accused Jeyakumar completed M.Phil Course in Loyola College in the year 2007 and that the identity card - Ex.P.6 was the one issued by the College to him. P.W.18 has stated that the 2nd accused studied in Loyola College between 2007 and 2008. P.W.19 was also a part time Professor at Loyola College during the relevant period. He has not stated anything incriminating against the accused. P.W.20 is the Scientific Assistant, who has spoken about the scientific analysis conducted by him on the samples sent to him. He has vividly spoken about the results of the chemical analysis. P.W.23 was then working as a Booking Clerk in the TVS Parcel Service in Karnataka. He has vividly stated that 16 cans were booked for transport to Madurai, but he could not identify the person, who booked. P.W.24 was the Manager of the District Collector's Office at Madurai. He has spoken about the sanction granted by the District Collector for prosecuting the accused. Similarly, P.W.25 has also spoken to the same fact. P.W.26 ? the Head Clerk of the Court has spoken about the forwarding of the samples from the Court to the Forensic Lab for analysis. P.W.27 is yet another Sub Inspector of Police, who accompanied P.W.1 and witnessed the first accused in possession of the contraband. P.W.28 is the Investigating Officer.

5.7. When the above incriminating materials were put to the accused, they denied the same as false. However, they did not choose to examine any witness on their side. They marked a photograph as Ex.D1. Having considered all the above, the trial Court convicted them as detailed in the earlier paragraph of this judgment. That is how, these two appellants are before this Court with this appeal. The third accused has not preferred any appeal.

6. I have heard the learned counsel for the appellants Mr.C.Arulvadivel @ Sekar for Mr.G.Bhagavath Singh and Mr.K.Chellapandian, learned Additional Advocate General assisted by Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor and I have also perused the records carefully.

7. The learned counsel for the appellants would submit that the charges framed in this case were highly misleading, irregular and there were lot of omissions in the same. Thus, according to the learned counsel, the accused were deprived of a fair trial. As a result of which, according to the learned counsel, there has occurred failure of justice to the accused and therefore, the accused are entitled for acquittal.

7.1. Next, the learned counsel would submit that the conviction of the accused for certain offences under few penal provisions are vitiated for want of charges. He would further submit that when the accused were questioned by affording opportunity to make their submissions in respect of the sentence to be imposed, they were informed of certain offences, as though they were convicted for offences under those provisions, but while imposing sentence, they were sentenced for different offences under different penal provisions. In other words, according to the learned counsel, there is no conviction in accordance with the charges and there is no sentence for the offences for which, they were convicted. Thus, according to the learned counsel, the entire judgment stands vitiated for these illegalities.

7.2. The learned counsel would further submit that though it is alleged by the prosecution that these accused had conspired to smuggle these raw materials for the purpose of manufacturing explosives in Srilanka and though it is alleged that the accused purchased the same in Karnataka, brought the same to Madurai to smuggle the same to Srilanka to supply to LTTE, absolutely, there is no evidence for the same. The learned counsel would submit that the prosecution cannot make reliance on the confession allegedly made by these accused to the police. The learned counsel would point out that absolutely there is no evidence to prove the conspiracy that these accused had conspired to smuggle these substances to Srilanka to supply to the LTTE. Thus, according to the learned counsel, the conviction of the appellants under Sections 120(B) IPC is wholly illegal.

7.3. The learned counsel would next contend that though it is alleged that the 2nd accused purchased the chemicals from Mega Chemical stores in Bangalore, P.Ws.15 and 16 have not identified the 2nd accused at all in Court. He would further submit that similarly, these two witnesses have not identified the contraband marked as M.Os.7 to 10 as the ones sold away by them to the 2nd accused. The bill under which the chemicals were purchased has also not been correlated with the material objects, the learned counsel contended. Apart from that, according to the learned counsel, it is the case of the prosecution that A2 booked the contraband with the TVS Parcel Service at Sandhujapet in Bangalore. But that witness (P.W.23) has not identified the 2nd accused. He has also not identified the material objects. Thus, according to the learned counsel, so far as the 2nd accused is concerned, absolutely there is no evidence against him.

7.4. Now, turning to the third accused, the learned counsel would submit that according to the case, the third accused had authorised the first accused to take delivery of the contraband from TVS Parcel Service at Madurai. Accordingly, it is alleged, the first accused took delivery of the same from TVS Parcel Service. The learned counsel would point out that absolutely there is no evidence that the material objects viz., M.Os.7,8,9, and 10 were the ones actually taken delivery by the first accused. The van driver has also not identified the contraband. At the house of P.W.6, it is alleged that 16 cans were unloaded from the van. When P.W.6 enquired, the accused 1 and 3 told that the plastic cans contained soap oil. He has further stated that the said cans were later on seized by the police. This witness has also not identified M.Os.7,8,9 and 10 in the Court. From this, the learned counsel would submit that the evidence of P.W.6 does not incriminate the accused in any manner with the material objects viz., M.Os.7 to 10. Thus, according to the learned counsel, even against the accused 1 and 3, absolutely there is no evidence.

7.5. The learned counsel would list out many more grounds, which I do not want to extract, in view of the nature of decision, which I am going to take in this appeal. In short, the plea of the learned counsel for the appellants is that the trial Court was in error in convicting the accused and therefore, the same is liable to be reversed by this Court.

8. The learned Additional Advocate General would vehemently oppose this appeal. According to him, it is of course true that the charges framed against the accused were defective. But his contention is that the said defects have not caused any prejudice to the accused. It is his contention that the accused had understood the charges and faced the trial and therefore, it is too late in the day for them to plead that the charges were not clear enough, as required under the provisions of the Code of Criminal Procedure. The learned Additional Advocate General would further submit that in the event, this Court finds that the charges are defective, which has resulted in miscarriage of justice to the accused, as provided under Section 464 of the Code of Criminal Procedure, the case may be remanded back to the file of the trial Court for framing of appropriate charges and to go for re- trial.

8.1. The learned Additional Advocate General would further submit that so far as the purchase of these chemicals in Bangalore and transport of the same to Madurai through TVS Parcel Service are concerned, during investigation, sufficient materials were collected. However, he would submit that during the trial of the case, by inadvertence, the chemicals purchased by A2 in Bangalore and booked with the TVS Parcel service and transported to Madurai were not identified in Court by P.Ws.15 and 16 and the other witnesses. For this inadvertent omission, the entire case cannot be thrown out as unbelievable, the learned Additional Advocate General submitted. In respect of the accused 1 and 3, the learned Additional Advocate General would submit that sufficient materials were collected that the first accused took delivery of the said chemicals, which were booked by A2 at Bangalore and thereafter, A1 and A3 brought the same through the van and unloaded the same in front of the house of P.W.6. The learned counsel would further submit that unfortunately, by inadvertence, the relevant witnesses were not called upon to identify the material objects, which were so brought from TVS Parcel Service, to the house of P.W.6. The learned Additional Advocate General would submit that P.W.1 - the Sub Inspector of Police had identified all the 16 cans. He would further submit that under the mistaken impression that if once the properties were marked through one witness, it is not necessary to call upon the other relevant witnesses to identify them, this omission has occurred. For this omission, according to him, the accused cannot be simply acquitted. He would fairly concede that based on the evidence available in the present form, it would be difficult to plead for sustaining the conviction. But, for that matter, according to him, the accused cannot be acquitted, instead, the case should be remanded back to the trial Court to afford sufficient opportunity to the prosecution to let in sufficient evidence, which were collected during the course of investigation so as to prove the charges against the accused.

8.2. So far as the inconsistencies between the charges, the conviction and the sentence, the learned Additional Advocate General would submit that it was an error committed by the trial Court, for which, the prosecution cannot be blamed. At the end, the learned Additional Advocate General submitted that this is a fit case, where this Court should after setting aside the conviction and sentence imposed on the accused remand the matter for fresh disposal by the trial Court.

9. The Superintendent of Police, Ms. K.Bhavaneeswari, who is present in Court, would also plead that after setting aside the conviction and sentence, the case may be remanded back to the trial Court with a view to afford sufficient opportunity to the prosecution to let in sufficient evidence to prove the charges. The said statement is also recorded.

10. But the learned counsel for the appellants would oppose the said plea for remand made by the leaned Additional Advocate General. He would submit that remanding the case back to the trial Court would amount to allowing the prosecution to fill up the lacunae in the case, which is not permissible in law. He would submit that acquittal of the accused by considering the materials available on record, as of now, alone will amount to doing justice. Therefore, according to him, the case need not be remanded back for trial.

11. I have considered the above submissions.

12. At the outset I should point out that the trial Court framed as many as six charges, out of which, charges 1 and 2 were against the second accused, charges 3 and 4 were against the third accused and charges 5 and 6 were against the first accused. All the charges have been framed invoking Section 120(B) I.P.C.

13. According to the charges, the conspiracy between all the accused was to purchase raw materials for explosives from Bangalore and smuggle the same to Sri Lanka via., Madurai and supply the same to the banned organisation viz., the L.T.T.E. for the purpose of doing unlawful activities. But unfortunately the trial Court has not framed any independent charges for conspiracy under Section 120(B) of I.P.C. though conspiracy by itself is an independent offence punishable under Section 120(B) of I.P.C. notwithstanding whether an illegal act agreed to be done has been done or not. In this case, the illegal act, in pursuance of the conspiracy, allegedly committed by the accused making out various offences under the Explosive Substances Act, 1908 and Unlawful Activities (Prevention) Act, 1967 are separate offences for which independent charges should have been framed. But the Trial Court has made a mess of everything and has committed lot of irregularities and illegalities in the charges.

14. As held by the Hon?ble Supreme Court in Yash Pal Mittal Vs. State of Punjab reported in 1977 4 SCC 540, Noor Mohammad Mohd. Yosuf Momin Vs. State of Maharashtra reported in 1970 1 SCC 696 and Sardar Sardul Singh Caveeshar Vs. State of Maharashtra reported in 1964 2 SCR 378, it is true that conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. However, the offence can only be proved largely from inference from the act or illegal omission committed by the conspirators in performance of the common design. To prove the offence of conspiracy the prosecution need not necessarily prove that the perpetrator expressly agreed to do an illegal act as such agreement may be proved by necessary implication.

15. In Kehar Singh & Ors Vs. State (Delhi Administration) reported in 1988 3 SCC 609, the Hon?ble Supreme Court has held that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. The Court has further held as follows:

?Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.?

16. Keeping the above settled position of law in mind, in the instant case, at the first, if we look into the charges, the Trial Court has not bestowed its attention to frame appropriate charges. A cursory reading of all the charges would go to show that an agreement between the accused to make out conspiracy was to aid the L.T.T.E in Sri Lanka by supplying the raw materials for preparation of explosives to commit unlawful activities in Sri Lanka. But in order to frame such a charge, absolutely there is no material available. The learned Additional Advocate General would submit that confession of the accused to the police alone indicate that they had such conspiracy to smuggle the raw materials for explosive substances to Sri Lanka. Apart from the so called confession of these accused to the police, no other evidence has been collected during investigation even to infer that there was such agreement between the accused to smuggle these material objects to Sri Lanka for the purpose of supplying the same to the L.T.T.E.

17. It needs no stress that confessions made to the police are not relevant in view of the bar under Section 25 of the Evidence Act. Thus, absolutely there is no material on record to make out a ground for framing charges for conspiracy to commit any offence under the provisions of the Unlawful Activities (Prevention) Act, 1967.

18. Now, let us go into the individual charges. So far as the first charge is concerned, it is against the second accused under Section 6 of the of the Explosive Substances Act, 1908 r/w Section 120(B) of I.P.C. Section 6 of the Explosive Substances Act, 1908 reads as follows:

?6. Punishment of abettors:- Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets or is accessory to, the commission of any offence under this Act shall be punished with the punishment provided for the offence.?

19. A reading of the above provision would go to show that Section 6 of the Explosive Substances Act, 1908 itself deals with punishment of abettors. Under Section 107 of I.P.C. abetment includes conspiracy. Thus, the first charge framed under Section 6 of the Explosives Substances Act, 1908 r/w Section 120(B) of I.P.C. is not correct. For having purchased the raw materials in Bangalore and for having possessed the same in his hands until it was despatched through the TVS Parcel Service to Madurai, the second accused should have been charged for the substantive offence under Section 5 of the Explosive Substances Act, 1908.

20. The second charge is against the second accused under Sections 10(a)(iv) and 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 r/w Section 120(B) of I.P.C. As I have already pointed out, no material has been collected during investigation to make out an offence under the Unlawful Activities (Prevention) Act, 1967. Further, Section 10(a)(iv) makes out an independent offence punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine. Similarly Section 10(b)(ii) is a distinct offence punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Likewise, Section 13(2) is a distinct offence punishable with imprisonment for a term which may extend to five years, or with fine or with both.

21. I do not understand as to how the Trial Court could frame one single charge for these three offence which are independent in nature. Clubbing these three charges, the trial Court has again used Section 120(B) of I.P.C. Section 218 of the Cr.P.C. makes it clear that for every distinct offence of which any person is accused there shall be a separate charge. But the Trial Court in this case, has not followed the said provision carefully and it has framed one single charge for three distinct offences under Charge No.2.

22. The third charge is as against the third accused under Sections 10(a)(iv) and 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 r/w Section 120(B) of I.P.C. Here again, since the offences under Sections 10(a)(iv), 10(b)(ii) and 13(2) are distinct offences, there cannot be a single charge that to by invoking Section 120(B) of I.P.C.

23. The fourth charge is against the third accused under Section 6 of the Explosive Substances Act, 1908 r/w Section 120(B) of I.P.C. As I have already pointed out, Section 6 of the Explosive Substances Act, 1908 speaks of punishment of abettors, since abetment includes conspiracy as per Section 107 of I.P.C., this charge is also highly defective.

24. The fifth charge is against the first accused under Sections 10(a)(iv) and 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act, 1967. Here again, Sections 10(a)(iv), 10(b)(ii) and 13(2) are distinct offences and framing of a single charge for all these offences is again illegal.

25. The sixth charge is against the first accused under Sections 4(a), 4(b), 5(a) and 5(b) of the Explosives Substances Acct, 1908 r/w Section 120(B) of I.P.C. Here again the offences under Sections 4(a), 4(b), 5(a) and 5(b) are distinct offences, for which there should have been separate charges. The trial Court has framed one single charge for all these offences by invoking Section 120(B) of I.P.C. Again. This charge is also highly defective.

26. Under all the charges the Trial Court has included Section 120(B) of I.P.C. in a very casual manner. As I have already pointed out as against the second accused, the first charge is under Section 6 of the Explosive Substances Act, 1908 r/w Section 120(B) I.P.C., but, if at all the second accused had conspired to committ an offence under Section 6 of the Explosive Substances Act, 1908, the other accused would have been the co-conspirators in which case, there should have been corresponding charge under Section 120(B) of I.P.C. r/w Section 6 of the Explosive Substances Act against the accused 1 and 3 also. But there is no such charge framed.

27. Similarly the sixth charge is against the first accused under Sections 4(a), 4(b), 5(a) and 5(b) of the Explosive Substances Act, 1908 read with Section 120(B) IPC. If that be the case, the other accused should have been co-conspirators, in such an event, there should have been charges against the accused 2 and 3 also for offence under Section 120(B) of I.P.C. r/w Section 4(a), 4(b), 5(a) and 5(b) of the Explosive Substances Act, 1908. But there was no such charge framed against accused 2 and 3 corresponding to the sixth charge framed against the first accused. Like these defects, there are many more defects in the charges.

28. In this regard, it needs mention that framing of charges is a serious judicial function of the Court, which should be done scrupulously in order to afford fair trial to the accused as required under Article 21 of the Constitution of India and to avoid failure of justice. But in the instance case, the Trial Court has not bestowed its attention while framing charges against the accused so as to afford fair trail to the accused and the prosecution. In my considered view, the defects in the charges have surely resulted in failure of justice. I will give my reasons for this conclusion a little later.

29. Now, turning to the conviction and sentence imposed on the accused, the first accused has been convicted under Section 5(a) r/w Section 4(b) of the Explosives Substances Act, 1908 ? to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-; under Section 10(b)(ii) of the Unlawful Activities (Prevention) Act, 1967 ? to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- and under Section 120(B) of I.P.C. ? to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-.

30. As I have already pointed out, the offence under Section 5(a) and 4(b) are distinct offences. But the Trial Court has convicted him illegally by combining both as one offence. Though there was charge under Sections 4(a) and 5(b), there was neither acquittal nor conviction regarding these offences.

31. The 5th charge is under Sections 10(a)(iv), 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act. But the trial Court has convicted the first accused under Section 10(b)(ii) alone. The first accused has not been either acquitted or convicted for offences under Sections 10(a)(iv) and 13(ii) of the Unlawful Activities (Prevention) Act. Though there was no independent charge under Section 120(B) of I.P.C., the trial Court has convicted him under Section 120(B) of I.P.C. and sentenced him to undergo rigorous imprisonment for seven years.

32. The records reveal that when the accused were questioned in respect of the quantum of punishment, the first accused was informed that he was convicted under Section 10(a)(iv) and 10(b)(ii) and 13(2) of the Unlawful Activities (Prevention) Act. But the judgment shows that there was no conviction under Sections 10(a)(iv) and 13(2) of the Unlawful Activities (Prevention) Act.

33. Similarly, when he was questioned in respect of quantum of punishment, he was informed that he was convicted under Sections 4(a), 4(b), 5(a) and 5(b) of the Explosive Substances Act, 1908 r/w Section 120(B) of I.P.C. but the judgment shows that there was no conviction under Sections 5(b) and 4(a) of the Explosive Substances Act, 1908 and for conspiracy under Section 120(B) of I.P.C.

34. Now, turning to the conviction of the accused 2 and 3, the first charge was against the 2nd accused under Section 6 of the Explosive Substances Act r/w Section 120(B) of I.P.C. Though there was no charge under Section 5(a) of the Explosive Substances Act against the second and third accused, they were convicted under Section 5(a) of the Explosive Substances Act. As I have already pointed out, the offence under Section 5(a) and Section 6 are independent offences, but the Trial Court has convicted them treating both as one single offence. The accused 2 and 3 further stood charged under Sections 10(a)(iv), 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act. The Trial Court has convicted them under Section 10(b)(ii) of the Unlawful Activities (Prevention) Act. Neither there was conviction nor acquittal for offence under Section 10(a)(iv) and Section 13(2) of the Unlawful Activities (Prevention) Act. The Trial Court has convicted the accused 2 and 3 under Section 120(B) of I.P.C. r/w Unlawful Activities (Prevention) Act and the Explosive Substance Act though there was no such independent charge under Section 120(B) of I.P.C. Hence, the trial Court has not even mentioned The substantive offences, which the accused conspired to commit.

35. As I have elaborately dealt with herein above, a perusal of the charges, the conviction recorded, the questioning of the accused in respect of the quantum of punishment and the sentence imposed are highly contradictory and there is no consistency at all. Thus, the trial Court has committed lot of illegalities and irregularities, which have resulted in failure of Justice. In my considered view, I regret to say, the trial Court was so indifferent and colours and it had not bestowed its attention at all, while framing the charges, while recording the evidences and while delivering the judgment.

36. Now, turning to the manner, in which, the trial has been conducted, as it has been pointed out by the learned counsel for the appellants, the plastic cans containing these chemicals were not even proved through P.Ws.1 to 9. P.Ws.1 to 3 and P.W.27, who were the police officials, who, according to the prosecution, found the accused 1 and 3 in possession of these chemicals contained in the plastic cans numbering 16. They were not even asked to identify the same during the trial. Curiously, they were identified and marked only through P.W.28, the Investigating Officer. No other witness was called upon to identify these material objects, like the person, who sold the same in Bangalore, the one, who booked the same at TVS Parcel Service at Bangalore and the one, who delivered the goods at the office of the TVS Parcel Service at Madurai, the one, who transported the same in his van and the one, who unloaded the same at the house of P.W.6, the one in whose presence, they were recovered by P.W.1 and P.W.6. As it was submittedout by the learned Additional Advocate General, probably there was a mistaken impression on the part of the prosecutor that mere marking of a material object or a document through a witness would be suffice. It is common knowledge that mere marking of a material object through a witness, who has got nothing to do with the material object will not be sufficient at all to prove the relevance or link between the material object, the crime and the accused.

37. To establish The link between the accused and the contraband, at every stage, the one, who has some knowledge of The relevance of property should be asked to speak about the same and to identify the same. The person, who sold the chemicals at Bangalore should have been asked to identify the cans and the bill issued by him as well as the accused, who possessed the chemicals. The clerk of TVS Parcel Service, who booked the cans should have been asked to identify the same. The person, who unloaded the same at Madurai office at TVS Parcel Service should have been asked to identify the same. The person, who transported the same in his van, should have been asked to identify the same. P.W.6, before whose house, they were unloaded, should have been asked to identify the same. P.Ws.1 to 9, who found these cans containing chemicals, should have been asked to identify the same. This is really unfortunate.

38. It is painful, in such a sensational case, which involves the security of the Nation, the prosecution has shown a callous attitude from the beginning to the end and that is the reason why today, they are put in uncomfortable situation, before this Court in pleading to sustain the conviction. As a matter of fact, the learned Additional Advocate General has been impelled even to plead for remanding the case by admitting the lapses in the case of the prosecution. In these circumstances, as contended by the learned counsel for the appellants, the question is ?Would it be proper for this Court to simply acquit the accused on the ground that as of now there are no sufficient materials to sustain the conviction??

39. In my considered view, for the lapses committed by the one, who conducted the prosecution case before the trial Court and the lapses committed by the trial Court, the accused cannot be given the benefit of acquittal. Doing of justice would mean punishing the culprit and not allowing him to escape. It may be true that under our system, 100 criminals may escape but not one innocent be convicted. By applying the said old saying, this Court cannot simply close its eyes and acquit the accused though it has been brought to the notice of this Court that lot of materials were collected during investigation so as to make out a case against the accused, but the trial was not conducted properly by proving those materials before the Court by converting the same as legally acceptable evidences.

40. Fundamentally, the trial Court ought to have framed proper charges under proper penal provisions. The trial Court has failed in that. Secondly, while recording evidence, the Presiding Judge should not have been a mute spectator watching all irregularities being committed under his very nose, whether it was by the defence or by the prosecution. It is the duty of the Judge to use his power under Section 165 of the Evidence Act to be a proactive, vigilant and participating Judge in the proceedings of the Court, so as to see that there is no lapse on the part of the Court in the conduct of the trial. In this case, the trial Court has miserably failed in its legal duty, I regret to say. Even while delivering the judgment, the trial Court has not bestowed its attention to verify whether the accused were convicted for the charges framed and whether the sentence is imposed for the offences for which, they were convicted.

41. At this stage, let me refer to section 464 of the Code of Criminal Procedure, which reads as follows:

?464. Effect of omission to frame, or absence of, or error in, charge.

(1) No finding sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-

(a) In the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.

(b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.?

42. A reading of this provision would show that if this Court finds that there has occasioned failure of Justice on account of the errors in the charge, it is the duty of this Court to remand the case to the trial Court for fresh disposal, after correcting the errors in the charge. In this case, the learned counsel for the appellants himself would submit that charges are defective and the same has caused failure of justice to the accused. The learned Additional Advocate General had no option but to fairly concede that there were defects in the charges. Before framing of charges, as required under Section 226 of Cr.P.C., the Court is bound to call upon the Public Prosecutor to open the case for prosecution. In the instant case, the Public Prosecutor, who conducted the case ought to have opened the case and appraised the trial Court as to what are all the materials collected during investigation, upon which, the prosecution is going to place reliance making out the offences. It is the duty of the prosecutor also to appraise the Court as to what are all the offences for which, separate charges are to be framed. The law makers have, thus, made it obligatory on the part of the Public Prosecutor to open the case under Section 226 of Cr.P.C. so as to ensure that proper charges under the appropriate penal provisions are framed satisfying the requirements of Chapter XVII of the Code of Criminal Procedure. But, in this case, the learned Public Prosecutor has not discharged his judicial obligation as it is expected of from him. Atleast during the trial of the case, the defects in the charges should have been noticed. Either the prosecutor or the Court should have noticed the defects in the charges and in such an event, the lower Court would have atleast altered the charges by exercising its power under Section 216 of the Code. That was also not done. Atleast, at the time when the arguments were advanced under Section 234 of Cr.P.C., the defects in the charges should have been noticed. I do not understand as to how arguments were advanced by the learned Public Prosecutor, before the lower Court without reference to the charges. Had the arguments been advanced before the lower Court with reference to the charges, I am sure that the defects in the charges would have been noticed. It shows that the arguments were not made with reference to the charges and the learned Judge also did not refer to the charges while hearing the arguments. With these defects, now, under Section 464 Cr.P.C., I have no option but to remand the case back to the trial Court for fresh disposal in accordance with law and I am fully satisfied that failure of justice has occurred in this case owing to the errors and illegalities pointed out herein above.

43. I should point out that even the plea of the learned counsel for the appellants before this Court is that the charges are erroneous, which has caused failure of justice to the appellants. The learned counsel for the appellants would, however, submit that as per The proviso to Section 464 Cr.P.C., if the Court is of the opinion that the facts of the case are such that no valid charges could be preferred against the accused in respect of the facts proved, it shall set aside the conviction. The learned counsel would submit therefore, in this case, the conviction should be set aside and the case should not be remanded back for re-trial. In my considered opinion, this proviso is not applicable to the facts of the present case. It is not as though there were no materials to frame valid charges. As I have already pointed out, lot of materials were collected during investigation, but charges were not framed properly and the trial was not conducted promptly. Therefore, as per Section 464 Cr.P.C., I am inclined to remand the case back to the trial Court.

44. It is true that the third accused Mr.IlangaiNathan @ Nathan @ Rajan @ Chindu @ Ilango @ Sivalingam has not made any appeal challenging his conviction and sentence. But the fact remains that the case against him is inseparable. In view of the fact that I have held that the charges have not been framed properly and the conviction has not been recorded by following the procedure established by law, the conviction and sentence imposed on the third accused alone cannot be allowed to survive. In this regard, I may refer to the Judgment of the Hon'ble Supreme Court in Dandu Lakshmi Reddy vs. State of A.P. reported in 1999 (7) SCC 69, in paragraph 25, the Hon'ble Supreme Court has held as follows:

?25.The mother of the appellant Narayanamma is languishing in jail at present pursuant to the conviction and sentence awarded to her in this case. Of course her conviction is not before us as she did not file any special leave petition. But this Court has set up a judicious precedent for the purpose of averting miscarriage of justice in similar situations. On the evaluation of a case, if this Court reaches the conclusion that no conviction of any accused is possible the benefit of that decision must be extended to his co-accused also though he has not challenged the order by means of an appeal petition to this Court. (vide Rajaram v. State of M.P.)?

45. Similar view has been taken by the Hon'ble Supreme Court in Rajaram and others v. State of M.P. reported in (1994) 2 SCC 568, wherein, in paragraph No.10, the Hon'ble Supreme Court has held as under:

?10.Ram Sahai (accused 4) has not filed any appeal against his conviction and sentence. However, we find that his case is identical to the case of the appellants and there is no distinguishing feature. In our opinion it is therefore appropriate that The benefit of our Judgment should also be made available to Ram Sahai. His conviction is also altered from The one under Sections 302/149 IPC to one under Section 304 Part II read with Section 149 IPC. He is also sentenced to five years' rigorous imprisonment and to pay a fine of Rs.1000. In default to payment of fine, he shall suffer further rigorous imprisonment for one year. The fine when realised from Ram Sahai shall be paid to PW 7 Sahodara Bai.?

46. Similarly in Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra reported in JT 2002 (2) SC 158, the Hon'ble Supreme Court, after having referred to the Harbans Singh case, has held in paragraph No.8 as follows:

?8.After bestowing our anxious consideration on the fact situation in this case and also the spirit of Article 21 of the Constitution, we hereby order that the conviction passed on the second accused Jabbar shall also stand altered to section 304, part I and a sentence of rigorous imprisonment for ten years be awarded to him. This is done on a parity of reasoning and justice, otherwise glaring injustice would result as for him in a case where his role was by no means more serious than that of the present appellant who was A1 in the case.?

47. In view of the said settled position of law, though, in the instant case, the third accused has not made any appeal, the conviction and sentence imposed on him is also liable to be set aside. Accordingly, I am inclined to set aside the same.

48. Elsewhere in the judgment, I have stated that I do not deal with the other arguments on facts advanced by the learned counsel for the appellants. I wish to state the reasons for the same. If I express any opinion on considering the factual arguments advanced by either side, it may influence the mind of the trial Court. Therefore, I have not even extracted those arguments advanced on facts, because legally I hold that I am bound to remand the case back to the trial Court by setting aside the conviction and sentence imposed.

49. Since I am setting aside the conviction and sentence and remanding the case back to the trial Court, the bail granted to the appellants earlier during the course of trial will again come into force and therefore, they are entitled to be released, however, on their executing a fresh bond for a sum of Rs.50,000/- (Rupees fifty thousand only) each, with two sureties to the satisfaction of the trial Court.

50. In the result, the criminal appeal is allowed in the following terms:

(1) The conviction and sentence imposed on all the three accused is set aside and the case is remanded back to the trial Court for fresh disposal in accordance with law.

(2) The trial Court shall hear the Public Prosecutor and the defence as required under Section 226 of the Code of Criminal Procedure and frame appropriate separate charges against the accused as required under Chapter XVII of the Code of Criminal Procedure.

(3) The prosecution will be at liberty to recall any witness already examined for the purpose of further examination in chief and the accused shall be entitled for cross examination of the said witnesses.

(4) The prosecution shall also be at liberty to examine any additional witness and the accused shall be entitled to cross examine the said witnesses.

(5) The accused will be at liberty to recall any witness, who has already been examined, if not recalled by the prosecution and the accused shall be entitled to cross examine the said witnesses.

(6) The prosecution will be at liberty to prove any documents or material objects in accordance with law.

(7) The trial Court shall question the accused afresh under Section 313 Cr.P.C., after the above exercise is over as required under law by affording sufficient opportunity to the accused.

(8) The trial Court shall thereafter pass a detailed judgment in accordance with law.

(9) The trial Court shall conduct the trial on day-to-day basis and dispose of the case within a period of four months from the date of receipt of a copy of this judgment.

Note:-

(1) The Registry shall transmit the records forthwith to the trial Court, if any received.

(2) Issue Order copy on 29.07.2015 To

1.The 4th Additional District and Sessions Judge, Madurai.

2.The Inspector of Police, Q Branch Police Station, Madurai

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

Crl.Appeal (MD) No.67 of 2015 dated 24.07.2015

13. According to the charges, the conspiracy between all the accused was to purchase raw materials for preparing explosives from Bangalore and smuggle the same to Sri Lanka via., Madurai and supply the same to the banned organisation viz., the L.T.T.E. for the purpose of doing unlawful activities. But unfortunately the trial Court has not framed any independent charges for conspiracy under Section 120(B) of I.P.C. though conspiracy by itself is an independent offence punishable under Section 120(B) of I.P.C. notwithstanding whether an illegal act agreed to be done has been done or not. In this case, the illegal act, in pursuance of the conspiracy, allegedly committed by the accused making out various offences under the Explosive Substances Act, 1908 and Unlawful Activities (Prevention) Act, 1967 are separate offences for which independent charges should have been framed. But the Trial Court has made a mess of everything and has committed lot of irregularities and illegalities in the charges.

?Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.?

17. It needs no stress that confessions made to the police are not relevant in view of the bar under Section 25 of the Evidence Act. Thus absolutely there is no material on record to make out a ground for framing charges for conspiracy to commit any offence under the provisions of the Unlawful Activities (Prevention) Act, 1967.

?6. Punishment of abettors:- Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets or is accessory to, the commission of any offence under this Act shall be punished with the punishment provided for the offence.?

22. I do not understand as to how the Trial Court could frame one single charge for these three offence which are independent in nature. Clubbing these three charges, the trial Court has again used Section 120(B) of I.P.C. Section 218 of the Cr.P.C. makes it clear that for every distinct offence of which any person is accused there shall be a separate charge. But the Trial Court in this case, has not followed the said provision carefully and it has framed one single charge for three distinct offences under Charge No.2.

23. The third charge is as against the third accused under Sections 10(a)(iv) and 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act, 1967 r/w Section 120(B) of I.P.C. Here again, since the offences under Sections 10(a)(iv), 10(b)(ii) and 13(2) are distinct offences, there cannot be a single charge that to by invoking Section 120(B) of I.P.C.

24. The fourth charge is against the third accused under Section 6 of the Explosive Substances Act, 1908 r/w Section 120(B) of I.P.C. As I have already pointed out, Section 6 of the Explosive Substances Act, 1908 speaks of punishment of abettors, since abetment includes conspiracy as per Section 107 of I.P.C., this charge is also highly defective.

25. The fifth charge is against the first accused is under Sections 10(a)(iv) and 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act, 1967. Here again, Sections 10(a)(iv), 10(b)(ii) and 13(2) are distinct offences and framing of a single charge for all these offences is again illegal.

26. The sixth charge is against the first accused under Sections 4(a), 4(b), 5(a) and 5(b) of the Explosives Substances Acct, 1908 r/w Section 120(B) of I.P.C. Here again the offences under Sections 4(a), 4(b), 5(a) and 5(b) are distinct offences, for which there should have been separate charges. The trial Court has framed one single charge for all these offences by invoking Section 120(B) of I.P.C. Again. This charge is also highly defective.

27. Under all the charges the Trial Court has included Section 120(B) of I.P.C. in a very casual manner. As I have already pointed out as against the second accused, the first charge is under Section 6 of the Explosive Substances Act, 1908 r/w Section 120(B) I.P.C., but, if at all the second accused had conspired to committ an offence under Section 6 of the Explosive Substances Act, 1908, the other accused would have been The co-conspirators in which case, there should have been corresponding charge under Section 120(B) of I.P.C. r/w Section 6 of the Explosive Substances Act against the accused 1 and 3 also. But there is no such charge framed.

28. Similarly the sixth charge against the first accused is under Sections 4(a), 4(b), 5(a) and 5(b) of the Explosive Substances Act, 1908 read with Section 120(B) IPC. If that be the case, the other accused should have been co-conspirators, in such an event, there should have been charges against the accused 2 and 3 also for offence under Section 120(B) of I.P.C. r/w Section 4(a), 4(b), 5(a) and 5(b) of the Explosive Substances Act, 1908. But there was no such charge framed against accused 2 and 3 corresponding to the sixth charge framed against the first accused. Like these defects, there are many more defects in the charges.

30. In this regard, I needs to mention that framing of charges is a serious judicial business of the Court, which should be done scrupulously in order to afford fair trial to the accused as required under Article 21 of the Constitution of India and to avoid miscarriage of justice. But in the instance case, the Trial Court has not bestowed its attention while framing charges against the accused so as to afford fair trail to the accused and the prosecution. In my considered view, the defects in the charges have surely resulted in miscarriage of justice. I will give my reasons for this conclusion a little later.

31. Now, turning to the conviction and sentence imposed on the accused, the first accused has been convicted under Section 5(a) r/w Section 4(b) of the Explosives Substances Act, 1908 ? to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-; under Section 10(b)(ii) of the Unlawful Activities (Preventive) Act, 1967 ? to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- and under Section 120(B) of I.P.C. ? to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-.

32. As I have already pointed out, the offence under Section 5(a) and 4(b) are distinct offences. But the Trial Court has convicted him illegally by combining both as one offence. Though there was a charge under Sections 4(a) and 5(b), there was neither acquittal nor conviction regarding these offences.

33. The 5th charge is under Sections 10(a)(iv), 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act. But the trial Court has convicted the first accused under Section 10(b)(ii) alone. The first accused has not been either acquitted or convicted for offences under Sections 10(a)(iv) and 13(ii) of the Unlawful Activities (Prevention) Act. Though there was no independent charge under Section 120(B) of I.P.C., the trial Court has convicted him under Section 120(B) of I.P.C. and sentenced him to undergo rigorous imprisonment for seven years.

34. The records reveal that when the accused were questioned in respect of the quantum of punishment, the first accused was informed that he was convicted under Section 10(a)(iv) and 10(b)(ii) and 13(2) of the Unlawful Activities (Prevention) Act. But the judgment shows that there was no conviction under Sections 10(a)(iv) and 13(2) of the Unlawful Activities (Prevention) Act.

35. Similarly, when he was questioned in respect of quantum of punishment, he was informed that he was convicted under Sections 4(a), 4(b), 5(a) and 5(b) of the Explosive Substances Act, 1908 r/w Section 120(B) of I.P.C. but the judgment shows that there was no conviction under Sections 5(b) and 4(a) of the Explosive Substances Act, 1908 and for conspiracy under Section 120(B) of I.P.C.

36. Now, turning to the conviction of the accused 2 and 3, the first charge was against the 2nd accused under Section 6 of the Explosive Substances Act r/w Section 120(B) of I.P.C. Though there was no charge under Section 5(a) of the Explosive Substances Act against the second and third accused, they were convicted under Section 5(a) of the Explosive Substances Act. As I have already pointed out, the offence under Section 5(a) and Section 6 are independent offences, but the Trial Court has convicted them treating both as one single offence. The accused 2 and 3 further stood charged under Sections 10(a)(iv), 10(b)(ii) r/w Section 13(2) of the Unlawful Activities (Prevention) Act. The Trial Court has convicted them under Section 10(b)(ii) of the Unlawful Activities (Prevention) Act. Neither there was conviction nor acquittal for offence under Section 10(a)(iv) and Section 13(2) of the Unlawful Activities (Prevention) Act. The Trial Court has convicted the accused 2 and 3 under Section 120(B) of I.P.C. r/w Unlawful Activities (Prevention) Act and the Explosive Substance Act though there was no such independent charge under Section 120(B) of I.P.C. Hence, the trial Court has not even mentioned The substantive offences, which the accused conspired to commit..

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Navaneetha Krishnan vs The Inspector Of Police on 24 July, 2015