Delhi District Court
Jagmohan Singh Bagga vs State on 22 December, 2010
IN THE COURT OF SH. DHARMESH SHARMA :
ADDITIONAL SESSIONS JUDGEII, NORTH DISTRICT :
DELHI
CRIMINAL REVISION NO: 68/10
JAGMOHAN SINGH BAGGA
S/O LATE SD. SH. SUNDER SINGH
R/O 7/8, 1ST FLOOR, SINGH SABHA ROAD,
GHANTA GHAR, DELHI .... PETITIONER
VERSUS
STATE
APPEARANCES:
Mr. Rakesh Patyal, Advocate for the petitioner/ revisionist
Ms. Neelam Narang, Ld. Addl. Public Prosecutor for the State
22.12.2010
ORDER :
1. This is a Criminal Revision U/s 397 Cr.PC, filed against an order dated 02.11.2010 whereby Sh. Sanjay Bansal, Ld. ACMM, North, Delhi has been pleased to dismiss an application by the petitioner/revisionist for release of case property on superdari.
2. The case of the prosecution is that the accused was having a licence to possess and sale 'Manufactured Fire Works' not exceeding 300 kg and Chinese crackers or sparkles not exceeding 1200 kg, thus totalling 1500 kg for sale besides allowed to store temporarily about 500 kg 'Manufactured Fire Works'. It is alleged that the premises of the petitioner was raided on 28.10.2010 and he was found in possession of 7470 kg of 'manufactured fire works' in access of the quantity permissible. The petitioner/revisionist has accordingly been booked for an offence U/s 286 IPC R/w Section 5 & 9B of the Explosive Act.
3. The applicant moved an application for release of seized fire works which was declined by the Ld. ACMM interalia on the ground that possession of 'manufactured fire works' in excess of the limit prescribed by the license was a threat to the safety, safeguard and health of the general public and therefore the application for release of seized articles was dismissed vide impugned order. It may be indicated that the Ld.ACMM while deciding the application brushed aside the contention of the Ld. Counsel for the petitioner that while weighing the 'manufactured fire works' only the net weight of the explosives should have been considered excluding the gross weight of the whole package(s).
4. During the course of arguments before this court, Sh. Patiyal, Ld. Counsel for the petitioner/revisionist vehemently urged that the police wrongly weighed the entire material and took the gross weight of the whole packages of 'manufactured fire works' contrary to the rules. Per contra Ld. APP urged that there is no infirmity in the impugned order passed by the Ld. ACMM and the goods seized are of dangerous nature and could not be allowed to be released to the applicant/petitioner.
5. I have heard the Ld. Counsel for the petitioner/revisionist and the Ld. APP for the state. I have also perused the relevant record of the case including the trial court record.
6. First thing first, I do not find any illegality as such committed by the Ld. ACMM while passing the impugned order. Section 4 (d) of the Explosive Act, 1884 interalia defines "explosives" to me fireworks as well. Rule 2 (24) of the Explosives Rules, 2008, defines "fireworks" to me low hazard explosives comprising of any composition that combines to produce colour fire or flame, light effect, sound effect or combination of the same. Section 2 (32) of the Rules then defines 'manufactured fireworks' which are of different class and division. It is admitted case, that as per the licence granted to the petitioner by the competent authority dated 29.04.2009, the seized fire works fall in the class & of division categorized as 7.2. The marking on explosives and packages are governed by Rule 15 of the Rules and Rule 16 provides as under:
16. Weight of explosives - The weight of explosives when referred to in these rules shall not include the weight of the packing box in which the explosives are packed:
Provided that in case of explosives of the Class 6 (Ammunition) or Class 7 (Fireworks), the weight shall be deemed to be the weight of the complete article inclusive of the case or contrivance in which the explosive is contained, but shall not include the weight of the inner package and outer packing box."
7. Therefore, bare perusal of Rule 16 would indicate that in assessing the weight of a completed article, the weight of the explosive mixed or forming the compound with metallic or non metallic substance shall be considered but not including the inner package or the outer packing box. Having said that what the police has done in this case is that they raided the premises/shop of the petitioner/revisionist and as per the seizure memo three truck/tempos were requisitioned upon which the 'manufactured fireworks' were loaded and in total seven rounds were taken to get the seized goods weighed on the "DharamKanta". It is by this process that the police arrived at the conclusion, taking gross weight, that total quantity of 7470 kg was in excess of the limitation prescribed by the licence. It is also borne out from the seizure memo that in each round about 20 kg of explosives/'manufactured fireworks' were taken as samples which were numbered S1 to S7.
8. Ex facie the process that has been adopted by the police to weigh the goods appears to be flawed and it is not inspiring confidence because it is the gross weight of the total goods seized that have been taken into consideration and no independent assessment has been done so as to arrive at the net weight of the seized material. Infact no documents appear to have been seized in this regard keeping in mind the entire shipment is traceable to the suppliers. Secondly, what looks funny is that as per the police besides the seized 7470 kg, there was more 'manufactured fireworks' in the shop/premises and about 2000 kg of fireworks were delivered back to the applicant/petitioner/revisionist. It is not clear as to what factors were considered by the Investigating Officer while releasing the such goods to the petitioner/revisionist. This case is a stark illustration of how laws are applied selectively which smells of corrupt tendencies on the part of the investigating agencies.
9. Be that as it may, the petitioner/revisionist raises a triable issue about infraction of rules and procedures and no purpose would be served by keeping the 'manufactured fireworks' in the Malkhana of the concerned Police Station which to our common knowledge are not maintained in a proper manner or with requisite safeguards. On the contrary the petitioner/revisionist has a licence to possess and sale 'manufactured fireworks' till 31.03.2014. The nature of the goods are such that the same come with an expiry date of about one year after which the goods would be obsolete.
10.Therefore, in the totality of the facts and circumstances of the case I do not find that Ld. ACMM has adopted a just and fair approach in dealing with the application of the petitioner/revisionist. The 'manufactured fireworks' can be released to the petitioner/revisionist with certain conditions so as to ensure that the same does not pose any danger to the public at large. As per the petitioner, the total value of the goods seized is about Rs. 3.5 lakhs which is not disputed by the Prosecution.
11. Accordingly, this court allows the present revision setting aside order dated 02.11.2010 and thereby directing that the seized 'manufactured fireworks' sans the samples be released to the petitioner/revisionist on superdari on furnishing requisite bond in the sum of Rs. 3,50,000/ to the satisfaction of the Ld. ACMM, with the direction that the case property shall be produced during the trial as and when directed by the Court by the petitioner/revisionist. The petitioner interalia shall submit an undertaking about the manner the released fireworks shall be stored by him and the place of such storage. Further keeping in view the life span of the items, it is directed that upon filing the charge sheet, the trial of the case may be expedited and the same be concluded within a period of nine months thereafter. Before release the IO shall take the photographs of the entire seized material in sufficient numbers and report shall be submitted to the court with the charge sheet.
12.The trial record be sent back alongwith the copy of this order. Revision file be consigned to record room.
ANNOUNCED IN OPEN COURT (DHARMESH SHARMA)
TODAY ON: 22.12.2010 ASJII, NORTH DISTRICT,
DELHI.
CR 68/10
22.12.2010.
Present : Mr. Rakesh Patyal, Advocate for the petitioner/ revisionist Ms. Neelam Narang, Ld. Addl. Public Prosecutor for the State Vide separate order of even date, (DHARMESH SHARMA) ASJII, NORTH DISTRICT, DELHI.