Karnataka High Court
Yalleshi @ Raja S/O Armugam vs The State Of Karnataka, on 18 August, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.APPEAL NO.2829/2011
BETWEEN:
YALLESHI @ RAJA S/O ARMUGAM
TAMIL VADDAR, OCC: STONE BLASTING,
R/O PALMALAPALYA, TIRUCHANA GUDU,
SALEM DIST. PRESENTLY R/AT SANGAPUR,
TQ. GANGAVATHI, DIST. KOPPAL.
... APPELLANT
(BY SRI. J.BASAVARAJ, ADV.)
AND
THE STATE OF KARNATAKA,
REP. BY ITS SPP,
HIGH COURT OF KARNATAKA
CIRCUIT BENCH, DHARWAD.
... RESPONDENT
(BY SRI.VINAYAK KULKARNI, AGA)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO CALL FOR THE RECORDS IN
S.C.NO.40/2010, PERUSE THE SAME, ALLOW THIS
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APPEAL, SET ASIDE THE JUDGEMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 29.09.2011
AND SET THE APPELLANTS AT LIBERTY.
THIS APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT PASSED THE
FOLLOWING:
JUDGMENT
The appellant-accused has preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated 29.09.2011 passed in S.C.No.40/2010 on the file of the learned Sessions Judge, Koppal, (for short referred to as 'the trial Court') convicting the accused for the offence punishable under Section 5 of the Explosive Substance Act, 1908 (for short referred to as 'the Act').
2. Heard the learned counsel Sri.J.Basavaraj for the appellant and the learned AGA-Sri.Vinayak Kulkarni for respondent-State.
3. Brief facts of the case as made out by the prosecution are that the accused was found in illegal possession of aluminum detonator caffeine 14 packs 3 valued at Rs.13,670/-, 18 bullets Neogel-90 explosives, valued at Rs.1,620/-, 19 kgs. Veritic super explosives valued at Rs.1,900/-, 32 kgs. of substance which is used for veritic super explosives valued at Rs.3,200/-, 12 bundles of wick used in preparation of explosives valued at Rs.1,200/- on 21/11/2008 in front of the house situated at Lamani street, Sangapur village, Gangavathi taluk, owned by one Sri Shivamurthy Swamy, without any licence or permit which was suspected to be held with any unlawful object and thereby committed the offence punishable under Section 5 of the Act.
4. Police Inspector, DCIB Unit, Koppal, lodged the complaint against the accused. The investigating officer after investigation, filed charge sheet for the above said offence. The learned Magistrate Court took cognizance of the offence and committed the matter to the learned District and Sessions Judge, Koppal, for trial. The trial Court summoned the accused and the 4 charges for the above said offence was framed. Accused has pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its contention, got examined PWs.1 to 7, got marked Exs.P1 to P8 and identified MOs.1 and 2 in support of its contention. The accused has denied all the incriminating materials available on record in the statement recorded under Section 313 of Cr.P.C., but has not chosen to lead any evidence in support of his defence. The trial Court after taking into consideration all the materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to convict the accused for the offence punishable under Section 5(b) of the Act. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, accused has preferred this appeal on various grounds.
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6. Learned counsel for the appellant submitted that the impugned judgment of conviction and order of sentence is ieelgal, perverse and the same is liable to be set aside. The prosecution has failed to prove any of the requirements that are to be proved under Section 5 of the Act. The house in question was owned by one Sri.Shivamurty Swamy even according to the prosecution. It has not produced any material to prove that the house was in the possession of the accused. Moreover, as per the case made out by the prosecution, the explosives were found by the side of the road, meaning thereby the accused was never in possession of any of these substances said to be the special category explosive substances. PWs.4 and 5 who are the material witnesses being the panchas for the seizure Mahazar Ex.P3, have not supported the case of the prosecution. PW1 had proceeded to the spot on receiving the information without registering the FIR as required under Section 154 of Cr.P.C. According to the 6 case made out by the prosecution, the explosives in question were found and seized on 21/11/2008, but the letter was written to the Deputy Commissioner on 23/11/2008 enquiring as to whether the accused was issued with any licence or permit to possess the explosive substances. Deputy Commissioner, Koppal, replied vide his letter dated 20/6/2009 which is as per Ex.P6 informing the investigating officer that no such licence was issued to the accused either to possess or to deal with the explosive substances. Thereafter, it was only on 11/1/2010 Ex.P3 was came to be drawn. Therefore it is clear that more than a year after the date of incident, the sample was drawn under Section Ex.P3. Even drawing of the sample under Ex.P3 is not proved as both the panchas i.e. PWs.4 and 5 have not supported the case of the prosecution. Even though the prosecution relies on the FSL report, which is as per Ex.P8, the author of the document is not examined. 7
7. Learned counsel further submitted that when the prosecution has not proved that the accused was in possession of the so-called explosive substances and when it has not proved seizing of the samples for the purpose of sending the same for FSL examination and when there is inordinate delay in following the procedure, it cannot be said that the prosecution is successful in proving the guilt of the accused.
8. Moreover, the learned counsel submitted that as per Ex.P3 the samples seized contained 75gms. and the same was sealed 'GR'. But as per Ex.P8, the exhibit received in FSL was unsealed. There is no explanation as to who, when, where and why the said seal referred to in Ex.P3 was opened or tampered. When the prosecution is not successful in proving the sample examined by the expert was in fact drawn from the bulk substances, the accused cannot be convicted. Moreover, the evidence of PW6 do not corroborate the documents on record to contend that the sample as per 8 Ex.P3 was drawn on 11/1/2010. PW3 says in his evidence that experts from Mangalore came and taken three items for examination on 9/1/2010 i.e. much earlier to Ex.P3. From all these facts and circumstances, it is clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt. Under such circumstances, the accused is entitled for benefit of doubt and should be acquitted. But the trial Court without considering these glaring discrepancies proceeded to convict the accused without any basis. Therefore, he prayed that the appeal is to be allowed by setting aside the impugned judgment of conviction and order of sentence and by acquitting the accused.
9. Per contra, Sri.Vinayak Kulkarni, the learned AGA supporting the impugned judgment of conviction and order of sentence submitted that PW1 being the head of the raiding party found the accused in possession of special category explosives and seized 9 the same under seizure mahazer Ex.P2. PWs.2 and 3 have also corroborated the version of PW1 with regard to these facts. First information as per Ex.P1 was filed by PW1 immediately and on the basis of the same, FIR was came to be registered as per Ex.P4. During investigation, it was verified from the Deputy Commissioner as to whether any licence or permit was issued to the accused authorizing him to be in possession of these explosives and thereafter, the sample was drawn from the bulk explosives under Ex.P3 and the same was sent to FSL for examination. The FSL report is as per Ex.P8, which confirms that the sample sent for examination was ammonium nitrate which is a special category explosive substances as per the notification made by the Government of India and the same could be used as explosives. Therefore, it is clear that the accused was in possession of ammonium nitrate - a special category explosive substances for which he was not having any licence or permit and he 10 has not explained the circumstances under which he was possessing the same. Under such circumstances, the accused has committed the offence punishable under Section 5(b) of the Act. The trial Court properly appreciating the materials on record, proceeded to convict the accused. He submitted that there are no grounds made out to allow the appeal and therefore, prays for dismissal of the appeal as devoid of merits.
10. I have perused the materials including the trial Court records in the light of the submissions made by both the counsels.
11. It is the specific contention of the prosecution that the accused was found in possession of ammonium nitrate- a special category explosive substances, which were seized under Ex.P2 in the presence of the panchas and subsequently, sample was sent for examination, where it was confirmed that the substance was ammonium nitrate which can be used as 11 explosives. Thereby the accused has committed the offence for which he was convicted.
12. The prosecution in order to prove its contention, examined PW1 who held the raid after receiving credible information. Witness stated that on 21/11/2008, he along with his staff members went to Sangapur village and after securing the presence of panchas, proceeded to Lamani street and found the accused residing in the house belonging to Shivamurthy Swamy who was in illegal possession of the explosive substances which was subsequently proved to be ammonium nitrate - a special category explosives. Witness stated that he had lodged the complaint as per Ex.P1. Witness also stated that the said substances seized by him were destroyed by the experts of explosive substances. During cross examination, witness stated that the accused was sitting by the side of the road and there were no other persons. He admitted that five items of the explosive 12 substances said to have been seized under Ex.P2 are not before the Court.
13. PW2 is the PSI who accompanied PW1 during raid and seizure. He reiterated the evidence as deposed by PW1. PW3 is the Mahazar witness to the seizure Mahazar Ex.P2, who also spoke that a person was sitting in front of the house with some materials with him and the same were seized by the police. PWs.4 and 5 are the mahazar witnesses to Ex.P3. But both these witnesses have not supported the case of the prosecution. Even during cross examination by the learned public prosecutor nothing has been elicited from them.
14. PW6 is the PSI who registered Crime No.294/2008 against the accused for the offence punishable under Section 5 of the Act on the basis of the first information lodged by PW1 i.e. Ex.P1. He stated that the bulk substance was produced before him and he sought for permission from the jurisdictional 13 magistrate to preserve the substance with him. He identified the accused and also MOs.1 and 2 to state that MOs.1 and 2 are the two substances which included in the bulk substance that was produced before him. Witness further stated that on 9/1/2010, the Controller of the Explosives, Mangalore, had come to his station, verified the seized substances and took three items with him. He pleaded his ignorance as to whether those explosives taken by the Controller of Explosives were destroyed or not.
15. PW7 is the CPI, who investigated into the matter and filed charge sheet against the accused. Witness produced Ex.P5-the property extract in respect of the house in front of which accused alleged to have found with the explosive substances and stated that the said house stands in the name of Shivamahantayya Swamy. Witness stated that on 14/1/2010, he had drawn the samples from two substances, i.e. Bentec super explosives substance weighing 19 kgs., and veritic 14 super explosive substances in the plastic bag in the presence of panchas and sent the same to FSL, Bangalore for examination. He also stated that on 3/3/2010 he received the opinion from the Expert of Explosives, Mangalore, as per Ex.P7. Subsequently, he received the FSL report from Mangalore as per Ex.P8. He identified MOs.1 and 2 as the samples he had drawn and sent for examination. During cross examination witness admitted that the house in question was not belonging to the accused and it stands in the name of Shivamurthayya Swamy. He also admitted that he has not collected any document nor recorded the statement of said Shivamurthayya Swamy to show that the accused was in possession of the house. He denied the suggestion that a false complaint was came to be filed against the accused.
16. As per the version of the prosecution, some substance said to be explosives were seized from by the side of the road in font of the house of one 15 Shivamurthayya Swamy. Nothing has been placed before the Court to prove that the house in question was in possession of the accused.
17. Ex.P2 is the seizure Mahazar dated 21/11/2008. Ex.P3 is the seizure Mahazar dated 11/1/2010, whereunder sample weighing 750 gms. from item Nos.3 and 4 were drawn and packed in a plastic container and sealed with the seal 'GR' for the purpose of sending the same for FSL examination. This Mahazar also refers to the visit of the explosives expert visiting the station on 9/1/2010 and confirming that the objects at Sl.Nos.3 and 4 as explosives and suggested to sent the substances for FSL examination. Ex.P7 is the report from the Petroleum and Explosives Safety Organization (PESO), Mangalore, to the effect that he examined the contents of three unsealed exhibits collected by him during his visit to Gangavathi rural police station on 9/1/2010 and the same were found to be i) nitrate mixture ii) ordinary detonators iii) 16 safety fuse. It also shows that the contents of the above exhibits were destroyed after examination in the interest of public safety and as per Rule 129 of Explosives Rules, 2008. Ex.P8 is the FSL report issued by FSL, Bangalore, to the effect that one item said to contain ammonium nitrate sent by Gangavathi rural police was subjected to examination and it was found that the article was ammonium nitrate. As per Ex.P2 five substances were seized and as per Ex.P3, samples from item Nos.3 and 4 were drawn and sent for FSL examination. But as per Ex.P8 only one article was received for examination which tested positive for ammonium nitrate. Drawing of the sample under Ex.P3 was not spoken to by any of the witnesses except PWs.4 and 5. PWs.4 and 5 being panchas to Ex.P3 have not chosen to support the case of the prosecution. This document was never referred to by any of the other witnesses to prove its contents.
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18. As per Ex.P7, three items seized under Ex.P2 were taken by the Explosives Expert, Mangalore, but there are absolutely no document to evidence the same. The said substances are not before the Court and it is stated that the same were destroyed by the expert in Mangalore. Unfortunately, it was never brought to the notice of the Court when initially the seizure of the substances was reported to the Jurisdictional Magistrate and sought his permission to keep the substance in the possession of the investigating officer. Therefore, the bulk substance which was seized under Ex.P2 was not before the trial Court to be identified by any of the witnesses.
19. Seizure of the sample from Item Nos.3 and 4 under Ex.P3 is not proved by the prosecution. Even though Ex.P3 was drawn more than a year after seizing of the substances under Ex.P2, there are no materials to prove that the Explosives Expert from Mangalore had taken item Nos.1 to 3 and destroyed the same after 18 giving his opinion as per Ex.P7. Even the authors of Exs.P7 and P8 are not examined before the Court to speak about the samples they have received for examination.
20. Moreover, when it is the contention of the prosecution that the accused was in possession of the house in question, where the explosive substances were found, no materials are placed before the Court to connect the accused to the substance in question. Under such circumstances, it cannot be said that the prosecution is successful in proving the guilt of the accused beyond all reasonable doubt. Even though the prosecution is successful in placing some materials to prima facie show that the substances sent for FSL examination were ammonium nitrate and the substances examined by the Controller of Explosives as nitrate mixture, ordinary detonator and safety fuse as per Ex.P7, is not successful to connect the accused to these substances and to connect the samples examined 19 by the Controller of Explosives, Mangalore and FSL, Bangalore, to the bulk substance said to have been seized under Ex.P2. There are several missing links in the case of the prosecution which go to the root of the matter. Under such circumstances, accused cannot be found guilty and he will be entitled to the benefit of doubt.
21. I have gone through the judgment of conviction and order of sentence passed by the trial Court. It has committed an error in forming an opinion that Ex.P3 seizure mahazar is only a formal document and the samples for articles 3 and 4 were drawn and to say that the same was spoken to by PWs.6 and 7 and supported by Exs.P7 and P8. The trial Court focused very much on the defence taken regarding destroying of the explosives by the experts and proceeded to convict the accused by observing that since the substance seized were explosives, destruction of the same by the experts will not effect the case of the prosecution. 20 Even though such finding of the trial Court could be justified, proof of the sample drawn from the bulk substance was very much necessary and connecting the accused to the seized articles was also very much necessary to record his conviction. Therefore, I am of the opinion that the impugned judgment of conviction and order of sentence is liable to be set aside. Accused is entitled to be acquitted.
22. Hence, I proceed to pass the following:
ORDER The appeal is allowed.
The impugned judgment of conviction and order of sentence dated 29.09.2011 passed by the learned Sessions Judge, Koppal, is set aside. Accused is acquitted for the offence punishable under Section 5 of the Explosive Substances Act.
The bail bonds of the accused and that of the surety stand cancelled.21
Fine amount if any deposited is ordered to be refunded to the accused on due identification.
Registry is directed to send back the trial Court records along with copy of the judgment.
SD/-
JUDGE Vmb