Bangalore District Court
State vs Manigandan S/O Guruswamy on 12 January, 2022
1 CC.No.20230/2015
IN THE COURT OF V ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT: BANGALORE
Dated this the 12th day of January, 2022
PRESENT
Sri. RAJESH N. HOSAMANE B.Sc.ML.
V ACMM BENGALURU
CC. No.20230/2015
Complainant : State
Rep. PSI Upparpet
Police Station, Bangalore.
(by Sr.A.P.P)
-Vs-
Accused : 1. Manigandan S/o Guruswamy
R/at No.152, Bharathinagar,
Bagaluru Road, Hosuru,
Krishnagiri, Tamilnadu.
2. Mohammed Haneef
S/o Abdul Wahab
R/at 2/927, 2 nd Cross,
Vinayakapuram, Hosuru,
Krishnagiri Taluk, Tamilnadu.
3. Nagaraja Rao.B.N.
S/o Narasimhamurthy
R/at Rayasimha Layout, 7 th Cross,
Hosakote Taluk, Permanent Add:
Bathalalli Village, Chinthamani Tq,
Kolar District.
(A-1 & 2 by Sri.B.K.R. Adv.,
A-3 by Sri.H.G.R Adv.,)
2 CC.No.20230/2015
1. Date of offence 29.12.2014
2. Arrest of the accused 30.12.2014
3. Name of the complainant Anand Kabburi
4. Date of closing of 03.12.2021
evidence
5. Offences complained of Sec.420,511 R/w.Sec.34 of IPC
6. Opinion of the Judge Accused No. 1 to 3 found not
guilty
7. Complainant by The Learned Sr.APP .
8. Accused defence by A-1 & 2 by Sri.B.K.R. Adv.,
A-3 by Sri.H.G.R Adv.,
JUDGMENT
This case emanates from the charge sheet submitted by the PSI of Upparpet police station against accused No.1 to 3 for the offence punishable under section Sec.420, 511 R/w.Sec.34 of IPC.
2. The brief facts of the prosecution case is as under:
On 29.12.2014 the accused persons with an intention to cheat the public by intending to sell the arms illegally by misrepresenting fake things as red mercury blast which is raw substance in the preparation of bombs and other 3 CC.No.20230/2015 ammunitions and they are trying to sell the same in Gandhinagar Park within the jurisdiction of Upparpet Police Station and thereby committed an offence punishable U/Sec. 420, 511 R/w.Sec.34 of IPC.
3. The complainant has lodged complaint against accused persons. On the basis of said complaint the police have registered the case in Cr.No.415/2014 and forwarded FIR to this court. Accused persons are arested and later they are enlarged on bail. Thereafter, the police conducted investigation and filed charge sheet against the accused persons for the above said offences.
4. On the basis of materials on record cognizance of the offence U/Sec. 420, 511 R/w.Sec.34 of IPC is taken and issued summons to the accused persons. The accused appeared through their counsels, A-1 & A-2 by Sri.B.K.R. Adv., and A-3 by Sri.H.G.R Adv. Towards compliance U/Sec.207 of Cr.P.C. copy of charge sheet is supplied to the accused persons. Charge is framed, read over and explained to the accused in the language known to them. 4 CC.No.20230/2015 The accused persons pleaded not guilty and claimed to be tried.
5. CW.1 namely Anand Kabburi, who is Inspector of Police, CCB, N.T.Pet, Bengaluru has raided the accused persons on the basis of credible information and he seized the Dell Company laptop, one cylinder and one xerox copy of document from the possession of accused persons. He produced the said accused No.1 to 3 and seized material before the Investigating Officer i.e. CW.9.
6. CW.9 arrested accused No.1 to 3 and produced them before the court, conducted investigation and filed charge sheet against the accused persons. During the crime stage of the case the accused got themselves enlarged on bail. Accused No.1 to 3 in respect of service of summons appeared before the court Sec.207 of Cr.P.C. is completed.
7. The prosecution in order to bring home the guilt of the accused persons has examined PW.1 & 2 and got marked the documents as Ex.P1 to Ex.P3 and M.O. 1 and 2 and closed their side. Statement of accused No.1 to 3 5 CC.No.20230/2015 U/Sec.313 of Cr.P.C. is recorded. The accused No.1 to 3 denied the incriminating evidence that appeared against them.
8. Based on the above facts and circumstances on record, the following points arisen for the consideration of the court:
1) Whether the prosecution proves beyond all reasonable doubt that On 29.12.2014 the accused persons with an intention to cheat the public by intending to sell the arms illegally by misrepresenting fake things as red mercury blast which is raw substance in the preparation of bombs and other ammunitions and they are trying to sell the same in Gandhinagar Park within the jurisdiction of Upparpet Police Station and thereby committed an offence punishable U/Sec. 420, 511 R/w. Sec.34 of IPC?
2) What order?
9. Heard the arguments of both sides and perused the materials available on record.
10. My findings to the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
6 CC.No.20230/2015
REASONS
11. Point No.1: It is the case of prosecution that, on
29.12.2014 the accused persons with an intention to cheat the public by intending to sell the arms illegally by misrepresenting fake things as red mercury blast which is raw substance in the preparation of bombs and other ammunitions and they are trying to sell the same in Gandhinagar Park within the jurisdiction of Upparpet Police Station and thereby committed an offence punishable U/Sec. 420, 511 R/w. Sec.34 of IPC.
12. In order to substantiate the allegations leveled against the accused persons the prosecution has examined two witnesses as PW.1 & 2 out of nine charge sheet witnesses and got marked documents as per Ex.P1 to P3 and M.O. 1 and 2. CW.1 namely Anand Kabburi, Police Inspector deposed as PW.1. In his evidence he deposed that he has worked in CCB from July 2014 to August 2017 as Police Inspector. On 27.12.2014 when he 7 CC.No.20230/2015 is in police station he received the credible information at about 11 a.m. that, the accused persons with an intention to smuggle the read mercury which is used as raw material in the bombs and other ammunitions are present in Gandhi Nagar park. He informed about the said message to his higher officials and went to the spot along with Cw.5. They went to Gandhinagar 4th Cross in Gandhinagar Park, four people are suspiciously wondering there, they went near the said persons, when they asked their names, they stated their names as Manigandan, Mohammed Haneef, Nagarajrao and Jayasingh. These persons stated that they are having 8 Pound of Red Mercury, they brought it from LTTE and the said Red Mercury is made in Russia. They demanded Rs.5,00,000/- for the sample of Red Mercury. PW.1 further deposed that, he stated that he will arrange Rs.5,00,000/- on 29.12.2014. On 29.12.2014 he has taken permission of higher officers and went to the spot along with CW.5, 7 & 8. Cw.7 called two pancha witnesses i.e. CW.2 & 3 to the spot and told the fact of the 8 CC.No.20230/2015 case. At about 11 a.m. they all went to the Gandhinagar Park. Except Jayasingh other 3 persons have already present there. Accused No.1 to 3 have shown the documentary on the laptop stating that, Red Mercury has been tested in America under Ultra Radio Active Laser Scanning. When PW.1 told them that he has brought Rs.5,00,000/- and he told them to show Red Mercury sample. Accused No.1 has taken one Aluminum coloured cylinder model heavy article from black coloured bag and he stated that from the help of machine it can be opened. He said that, if you test it through scanner you will get all the information. Accused No.3 produced scan report and he stated that, the weight of the said machine is 8,900 gms.
13. PW.1 further deposed that, thereafter, all the police personals surrounded them and caught hold of accused No.1 to 3. When enquired accused No.1 to 3 stated that accused No.4 Jaysingh has given them the said cylinder containing Red Mercury. He further stated, Jaysingh has 9 CC.No.20230/2015 told them that, if you sell it to the illegal exporters you will get crores of rupees therefore they have came to sell the same to illegal exporters. Then the accused No.1 to 3 have been taken into custody and on the spot they have carried out seizure panchanama in presence of CW.2 & 3. They have recovered the Dell company laptop and Aluminium coloured cylinder metal article and xerox copy of scanner. They came to CCB office and they have made hole in the said cylinder like article from laith Workshop. There is nothing like Red Mercury in the said cylinder. But only aluminum metal is there. Since accused No.1 to 4 are illegally selling the said material in order to gain unlawfully and therefore he has given complaint against accused persons U/Sec.420 of IPC.
14. CW.9 Ramesh.G S/o Puttaiah, who investigated the case is examined as PW.2. In his evidence he deposed that, on 29.12.2014 at about 4.30 p.m. CCB Inspector i.e. CW.1 appeared before him along with accused persons, panchanama and seized articles and filed written 10 CC.No.20230/2015 complaint against accused persons. On the basis of the same he has registered the case in Cr.No.415/2014 U/Sec.420 & 511 of IPC and forwarded FIR to the court. Thereafter, he recorded the voluntary statement of accused No.1 to 3. In voluntary statement accused No.1 and 2 stated that they have kept one cylinder, laptop and xerox copies near Gandhi Nagar Park. He has mentioned the said articles in PF No.225/2014. On 29.12.2014 he has recorded statement of CW.2 & 3. On 30.12.2014 he has recorded statement of CW.4 to 6. Since investigation is completed filed charge sheet against the accused persons.
15. In his cross-examination PW.2 deposed that, he has not mentioned model of the laptop and its number in PF. He has also not mentioned the area of cylinder in PF. He further stated that he has not made any marks on the seized articles in order to show that they have been seized from the possession of accused persons. He has not taken the statement of the persons who are present in 11 CC.No.20230/2015 Gandhinagar Park. He has not taken any documents from the said Jaleel, from whom they have tested the cylinder.
16. In this case, the court had issued summons, warrant and proclamation to CW.2 to 8 on many hearing dates. The proclamation is duly published against CW.2, 3 & 4. But the said witnesses are absent. Therefore CW.2 is dropped on 24.05.2019 and CW.3and 4 are dropped on 04.11.2019. Thereafter court has issued proclamation to CW.5 to 8. But CW.5 to 8 have not appeared before the court. The prosecution has failed to secure the presence of CW.5 to 8. Therefore CW.5 to 8 are dropped on 03.12.2021. The court dropped the above said witnesses only after giving sufficient opportunity to the prosecution to secure the presence of witnesses. In spite of this the prosecution has failed to secure the presence of above said witnesses. Therefore the above mentioned witnesses are dropped. This case if of the year 2015. The prosecution has failed to secure the presence of any of the 12 CC.No.20230/2015 witnesses before the court. But at the fag end of the case, the prosecution has filed application U/Sec.311 of Cr.P.C. for to recall of said witnesses. The said application is dismissed on the ground that, if the application is allowed injustice will be caused to the accused No.1 to 3, who appearing before the court for the last 6 years. The prosecution only in order to delay the proceedings has filed the application.
17. As discussed above, in this case the important witnesses in order to prove the case of prosecution are CW.2 to 4. CW.2 & 3 are the spot mahazar witnesses, wherein the spot mahazar has been drawn in presence of CW.2 & 3 in Gandhi Nagar Park where the accused persons are alleged to be selling rad mercury blasts. But prosecution not examined CW.2 and 3. Further CW.4 who tested the cylinder in his Lathe machine has not been examined by the prosecution. The prosecution has failed to prove the seizure panchanama before the court. In this case it is submitted by complainant that the accused are 13 CC.No.20230/2015 trying to sell the red mercury blasts and they have recovered the cylinder like article from them. It is further case that, they are cheating the persons by falsely misrepresenting that they are selling red mercury blasts. In order to prove the said fact the prosecution has not proved the seizer mahazar under which the complainant has recovered the laptop, cylinder like substance and one xerox copy of document from the possession of accused persons.
18. It is case of the prosecution that, on 29.12.2014 the police have raided the accused persons in broad day light in Gandhi Nagar Park. But the IO has not taken statement of any person who has seen the incident. In the park watchmen are deputed, the IO has not taken the statement of said watchmen also. There is no iota of evidence in order to come to the conclusion that accused persons are having laptop, cylinder like substance and xerox copy of document. The evidence of PW.1 & 2 is not corroborated by any other witnesses. Only on the basis of 14 CC.No.20230/2015 evidence of PW.1 & 2 it is risky to come to the conclusion that accused No.1 to 3 committed the offence U/Sec.420, 511 R/w.Sec.34 of IPC. The prosecution has failed to prove the allegations leveled against the accused persons. Hence, I answer Point No.1 in the Negative.
19. Point No.2: In the light of finding given on Point No.1, I find that accused No.1 to 3 are not guilty and in the result I proceed to pass the following:
ORDER Acting under section 248(1) of Cr.P.C., Accused No.1 to 3 are hereby acquitted for the offence punishable under Section 420, 511 R/w. Sec.34 of IPC.
MO.1 Dell Laptop is ordered to be confiscated to the state and MO.2 Aluminum coloured Metal Like Substance is ordered to be destroyed as worthless after appeal period is over.15 CC.No.20230/2015
The bail bond executed by accused No.1 to 3 shall remain in force for another 6 months from today as per Sec.437(A) of Cr.P.C.
(Dictated to the stenographer, transcribed by her and corrected by me, then pronounced in the open court, on this 12 th day of January, 2022) (Rajesh.N Hosamane) V ACMM, Bangalore ANNEXURE
1. Witnesses examined by the prosecution .
P.W.1 - Anand Kabburi
P.W.2 - Ramesh.G
2. List of the documents exhibited for the
prosecution
Ex.P.1 Panchanama
Ex.P.1(a) Signature of PW.1
Ex.P.1(b) Signature of PW.2
Ex.P.2 Complaint
Ex.P.2(a) Signature of PW.1
Ex.P.3 FIR
Ex.P.3(a) Signature of PW.2
3. List of the witnesses examined for defence .
-NIL-
4. List of the Documents exhibited for defence.
-NIL-
16 CC.No.20230/2015
5. List of the MOs marked in the evidence. M.O.1 Dell Laptop M.O.2 Metal Like Substance (Rajesh.N Hosamane) V ACMM, Bangalore 17 CC.No.20230/2015 (Judgment pronounced in the open court vide separate order) ORDER Acting under section 248(1) of Cr.P.C., Accused No.2 is hereby acquitted for the offence punishable under Section 323, 324 R/w.Sec.34 of IPC.
The bail bond executed by accused No.1 & 2 shall remain in force for another 6 months from today as per Sec.437(A) of Cr.P.C.
Office is directed to keep the entire file along with split up CC.No.13308/2019.
06.01.2022 V ACMM, Bangalore