Karnataka High Court
State Of Karnataka vs Biju T K on 12 June, 2019
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE 2019
BEFORE:
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.1435/2016
BETWEEN
STATE OF KARNATAKA
BY C.P.I. KARKALA CIRCLE,
KARKALA,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA,
BANGALORE-574 104.
... APPELLANT
(BY SRI. M.DIVAKAR MADDUR, HCGP )
AND
BIJU T.K.,
AGED ABOUT 43 YEARS,
SON OF KURUVILLA,
R/O. MAITHRI NAGARA,
KUKKUNDOORU VILLAGE,
KARKALA TALUK-574 104.
... RESPONDENT
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)
***
THIS CRL.A IS FILED U/S 377 OF CR.P.C. PRAYING TO
ALLOW THIS CRL.A. AND MODIFY THE ORDER OF SENTENCE
IMPOSED BY THE II ADDL. CIVIL JUDGE AND JMFC,
KARKALA DATED 25.04.2016 IN C.C. NO.364/2008 AND
IMPOSED APPROPRIATE AND ADEQUATE SENTENCE
AGAINST THE RESPONDENT/ACCUSED FOR THE OFFENCES
P/U/S 5 AND 9(B)(1)(b) OF EXPLOSIVE ACT.
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THIS CRIMINAL APPEAL COMING FOR ADMISSION, ON
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal aggrieved by the inadequacy of sentence passed by the Trial Court against the accused-respondent for the offences punishable under Sections 5, 9(B)(1)(b) of the Explosives Act.
2. I have heard the learned HCGP appearing for the appellant and the learned counsel appearing for the respondent.
3. The brief facts of the case are that the accused is a license holder under the Explosives Act for purchase and sale of explosives as per the terms of license. On 07.02.2007, he was found to have stored explosives at his farm house at Nandaru of Kaduhole and his residential house situated at Maithrinagara of Kukkundooru in violation of the license issued by the Deputy Chief Controller of Explosives as he had not maintained the register as required under Section 119 of the Explosive 3 Rules. The explosives came to be seized under different mahazars. The properties were seized and produced. About 314 ammonium nitrate bags came to be released in favour of the accused. Further, the Court below permitted to destroy the explosives by taking samples of each of the materials seized from the accused for the purpose of expert's opinion after drawing mahazar.
4. Before the Trial Court, the prosecution got examined PWs 1 to 11 and got marked Exs.P1 to 14 and M.Os.1 to 3. The defence did not chose to lead any evidence.
5. The Trial Court after considering the evidence and material on record, convicted the accused for the offence punishable under Sections 5, 9(B)(1)(b) of the Explosives Act and sentenced him to undergo S.I. for a period of six months and to pay fine of Rs.2,000/- and in default of payment of fine to undergo S.I. for further period of one month.
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6. Seeking enhancement of sentence imposed by the Trial Court, the learned HCGP contended that the punishment prescribed for the offence punishable under Sections 9(B)(1)(b) of the Explosives Act may extend to two years and therefore, in view of the nature of offence committed by the accused, the sentence now imposed is inadequate and the same needs to be enhanced. He further submits that undue sympathy cannot be shown while imposing sentence in serious crime and therefore he submits that the sentence imposed by the Trial Court needs to be enhanced.
7. Per contra, the learned counsel appearing for the respondent would submit that there is no minimum sentence prescribed for the offence punishable under Section 9(B)(1)(b) of the Explosives Act. The prescribed sentence is up to two years or with fine which may extend to Rs.3,000/- or with both. He further submits that the petitioner was a license holder and the Trial Court has convicted and sentenced him only on the ground that there is some violation of the license conditions. Therefore, he 5 submits that the sentence imposed by the Trial Court cannot be said to be on the lower side.
8. The sentence prescribed for the offence punishable under Section 9(B)(1)(b) of the Explosives Act is as under:
"9B - Punishment for certain offences - (1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules -
(a) XXX
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both;"
9. The Trial Court has convicted the accused on the ground that there is no compliance on the part of the accused in maintaining Form No.32 and Ex.P12-the invoice book is not in consonance with Ex.P10 and there are some differences so far as the sale of explosives and their particulars such as the description of production, quantity etc., The court below was not inclined to extend 6 the benefit of P.O. Act. However, considering the family background of the accused and the facts and circumstances of the case, passed the sentence as noted supra. Since there is no minimum sentence prescribed for the offence for which the accused has been convicted, the sentence imposed by the Trial Court cannot be said to be not in accordance with law or inadequate.
10. Accordingly, there is no merit in this appeal. The appeal is dismissed.
It is made clear that the observations made herein shall not prejudice the case of the accused if he has filed any appeal against his conviction and sentence passed by the Trial Court.
Sd/-
JUDGE Snc