Delhi District Court
Criminal Case/389/1995 on 6 February, 2012
FIR No. 389/95
S/v Shakeel
U/s 9B of Explosives Act
PS: Subzi Mandi
IN THE COURT OF SH. NEERAJ GAUR, LD.METROPOLITAN
MAGISTRATE-III/NORTH, DELHI
FIR No. 389/95
S/v Shakeel.
U/s 9B of Explosives Act.
PS: Subzi Mandi.
C/N. 1233/T
U. ID No. 02401R0014401996
Date of Institution : 25.09.96
Date of commission of offence : 29.11.95
Name of the complainant : SI Dharampal.
Name and address of accused : Shakeel s/o Sh. Babu r/o Nai Basti,
Dadri, PS Dadri, Distt. Ghaziabad, UP
Offence complaint off : U/S 9B of Explosives Act
Plea of guilt Pleaded not guilty
Final Order : Convicted u/s 9B of Explosives Act.
Date of reserve for order : 06.02.2012
Date for announcing the order : 06.02.2012.
BRIEF FACTS AND PRE TRIAL PROCEEDINGS :-
1. On 29.11.95, PCR official HC Dayanand (PW-9) apprehended one person near Tis Hazari along with some black powder. He flashed the message which was entered vide DD No. 15. Thereafter, ASI Nawab Singh (PW-1) and Ct Ajay Pal (PW-3) received DD no. 15 pursuant to which they reached at Telephone Exchange in front of Tis Hazari. Meanwhile, PW 7 SI Dharampal also received the information on his wireless who also reached at the spot. PW-1 and PW-3 found that accused kept a sack on a rickshaw. The sack was checked and found containing black colour powder. PW 7 ignited small portion of that U. ID NO. 02401R0014401996 Page No. 1 FIR No. 389/95 S/v Shakeel U/s 9B of Explosives Act PS: Subzi Mandi powder which immediately exploded. The accused was not having any licence to carry the explosive substance, hence, he was booked u/s 9B of the Explosive Act, 1884. The sample of powder was separated for FSL and the remaining recovered explosive substance was deposited in the Mal Khana. After completion of investigation, accused was sent up to face trial.
2. After necessary compliances, charge u/s 9B of the Explosive Act was framed against accused on 24.09.97 to which he pleaded not guilty and claimed trial u/s 9B of Explosive Act.
TRIAL :-
3. To establish the charges, prosecution examined eleven witnesses in total and their depositions are briefly touched upon as under :-
(i) PW-9 HC Dayanand stated that on 29.11.95 he along with other staff was posted at PCR and they were present in front of MTNL office, Tis Hazari. They supported one person speaking to rickshaw puller and on suspicion he was inquired upon about the bag he was carrying. On checking, the bag was found containing black colour powder. The local police was informed which arrived at the spot subsequently.
(ii) PW-1 ASI Nawab Singh, PW 3 Ct Ajay Pal and PW 7 SI Dharampal supported the prosecution case regarding apprehension of the accused along with the black coloured powder contained in a sack. The weight of the recovered substance was about 21.5 KG. The recovered articles were duly sealed with the seal of DPS and the sample was also sealed. The explosive substance was produced in the Court in duly sealed condition and is marked as Ex. P-1. The seizure memo of the recovered articles, pullanda and FSL Form is marked as Ex. PW 1/A. The arrest and U. ID NO. 02401R0014401996 Page No. 2 FIR No. 389/95 S/v Shakeel U/s 9B of Explosives Act PS: Subzi Mandi personal search of accused is Ex. PW 1/C. Rukka is marked as Ex. PW 7/A and site plan as Ex. PW 7/B.
(iii) PW 2 ASI Narayan Singh proved the instant FIR as Ex. PW 2/A.
(iv) PW-10 SI Jagdish Chander stated that on 13.12.95 he took a pullanda duly sealed with the DPS and FSL form vide RC no. 107/21 from Mal Khana to CFSL, Lodhi Road. There, Dr. Varian told that the case property being about 1 KG could not be accepted and only 10 grms are required towards sample. The sample was redeposited in the Mal Khana.
(v) PW 5 HC Gurvinder Singh deposed that on 29.01.96 he received, vide RC no. 199/21, one sealed parcel with the seal of RK along with FSL form with instruction to deposit it at FSL, Lodhi Road and as per the instruction, he deposited them in the FSL office without tampering with the sample. PW 6 Ct Hanuman deposed that on 07.03.96 he obtained the sample along with FSL Result from FSL, CBI, Lodhi Complex and deposited them with MHC(M) without any tampering.
(vi) PW -8 SI Sukhpal deposed that on 10.01.96 he was entrusted with investigation of this case. The sample earlier deposited with FSL was returned back being in excess of requirement. Permission was obtained from this Court for taking out 10 grms of the powder towards the sample and this Court put its own seal of RK on the 10 grms of the sample. The sample so taken was sent to FSL on 29.01.96.
(vii) PW-4 Sh Roop Singh is the Scientific Expert who deposed that on 29.01.96 he received the sample of this case duly sealed with the seal of RK. The sample was subjected to laboratory examination including U. ID NO. 02401R0014401996 Page No. 3 FIR No. 389/95 S/v Shakeel U/s 9B of Explosives Act PS: Subzi Mandi chemical tests and in this regard, the report Ex. PW 4/A was prepared.
(viii) PW-11 HC Ramesh Chand corroborated the statement of PW 9 while he deposed that on 29.11.95 he received the information from North Control Room regarding apprehension of a person along with some explosive substance, which information was entered vide DD no.15 and was marked to PW 1.
STATEMENT OF ACCUSED AND DEFENCE :
4. After closure of prosecution evidence, statement of accused u/s 313 CRPC was recorded in which he denied the allegations and claimed of being falsely implicated. He did not prefer to lead any defence evidence.
LEGAL PROVISIONS :
5. Section 9B of the Explosive Act, 1884 provides that whoever (b) possessives, uses , sells or transport any explosive in contravention of the Rules made under Section 5, shall be punished with imprisonment for a term which may extend to two years or fine upto Rs. 3000/- or both.
Rule 5 of the Explosives Rule 1983 provides as under : No person shall import, export, transport, manufacture, possess, use or sell any explosive which is not an unathorised explosive.
6. As per Rule 3, the classification of the explosives has been made into 8 classes as provided in Schedule-I of the Rules. The nitrate mixture falls in Class
2. The table provided in Scheduled II of the Rules provide the method of packaging and the maximum amount in the outer or inner package. Item no. II of this table provide that the Class II explosives shall be suitably cartridged in wrapping made of suitable plastic material or papers so as to make it U. ID NO. 02401R0014401996 Page No. 4 FIR No. 389/95 S/v Shakeel U/s 9B of Explosives Act PS: Subzi Mandi impermeable and protect from damp.
FACTS IN ISSUE
7. In the instant case the following facts are in issue :
(i) Whether the accused was found in possession of the aforementioned black powder or not?
(ii) If the answer to issue no. 1 is in affirmative, whether the recovered black powder was any explosive or not?
(iii) Whether the aforementioned possession of the explosive substance by the accused amounted to contravention of any Rule made under Section 5 of the Explosives Act?
ARGUMENTS AND APPRECIATION OF EVIDENCE IN THE LIGHT OF LEGAL PROPOSITIONS:
8. Ld. Defence counsel firstly argued that no public person was made a witness despite availability. Hence, it is argued, that the accused is liable to be given the benefit of doubt.
9. The police is required to join public witnesses during investigation to rule out the possibility of false implication. However, it does not necessarily mean that where no public person is a witness then it is a case of false implication. A police official is not an unreliable and untruthful witness per se. His statement is as believable as a public witness. The statement of police officials cannot be trashed only because no public witness was joined in investigation. Each and every such case is to be evaluated on the facts and attendant circumstances. In the case in hand, the entire sequence of events are clearly synced. PW 9 being U. ID NO. 02401R0014401996 Page No. 5 FIR No. 389/95 S/v Shakeel U/s 9B of Explosives Act PS: Subzi Mandi PCR official firstly spotted the accused with the gunny bag, the wireless message was entered vide DD no. 15 and was marked to PW 3 and his team for investigation. No link is missing. In these circumstances, I do not find any reason to disbelieve such testimonies.
10. The prosecution has been able to establish the issue no. 1 regarding the the recovery of black powder from the accused.
11. For issue no. 2, the reliance is placed on the FSL result marked as Ex. PW 4/A. As per the result, the black powder was based on Potassium Nitrate, Sulfur and Charcoal Mixture. It implies that the black powder recovered from the accused was an explosive substance falling in Class II.
12. As already discussed, the Class II explosives, as per Rule 8 and Scheduled II, are to be suitably cartridged in wrapping made of plastic material. The explosives were found contained in gunny bag which is clearly a contravention of Rule 8 r/w Scheduled II of the Explosives Rules 1983. The accused is accordingly held guilty for violation of the aforementioned Rule which is punishable u/s 9B of the Explosives Act 1884. Accused is accordingly convicted for the aforementioned offence.
Arguments on sentence shall be heard separately.
Announced in the Open Court (NEERAJ GAUR)
today i.e. on 06.02.2012 Metropolitan Magistrate-III(N)
Tis Hazari Courts, Delhi.
U. ID NO. 02401R0014401996 Page No. 6
FIR No. 389/95
S/v Shakeel
U/s 9B of Explosives Act
PS: Subzi Mandi
06.02.2012
Pr: Ld. APP for the State.
Accused Shakeel on bail.
Final arguments heard.
Vide my separate Judgment announced in the open court today, accused Shakeel is convicted for the offence u/s 9B of Explosives Act.
Put up for arguments on the point of sentence on 07.02.12.
(Neeraj Gaur) MM-III/North Delhi/06.02.2012 U. ID NO. 02401R0014401996 Page No. 7