Delhi District Court
State vs . Raj Kumar on 19 October, 2012
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO: 530/05
U/S: 286 IPC & 9B of Explosive Act
P.S:TIMAR PUR
STATE VS. RAJ KUMAR
:JUDGMENT:
Sl. No. of the case 392/3
Date of commission of offence 31.10.2005
Name of the complainant ASI Om Pal Singh
No 2620/North
Police Station
Timar Pur, Delhi.
Name, parentage and address Raj Kumar
of the accused. S/o Sh Naneh Lal
R/o H. No. 14/62,
Street No. 15, AI block,
Bangali Colony, Delhi.
Offence complained off U/s 286 IPC & 9 B of
Explosive Act
Plea of accused Pleaded not guilty
Final order Acquitted
FIR No. 530/05 1/7
STATE VS. RAJ KUMAR
Date of order 19.10.2012
Date of final arguments heard 19.10.2012
BRIEF FACTS AND REASONS FOR DECISION :
1. The facts of the case in brief are that on 31.10.2005 at about 11:05 pm, at H. No. 14/62, Street No. 15, AI block, Bangali colony, Delhi within the jurisdiction of police station Timar Pur, the accused was found in possession of crackers i.e explosive substance weighing about 13 kg (out of which 2 kg were miscellaneous crackers i.e explosives substance) without any fire extinguisher and without having any license. The accused Raj Kumar was thereby booked for the offence punishable u/s 286 IPC & 9 B of Explosive Act 1984.
2. That after completion of investigation the challan against the accused was filed on 27.09.2006 and accused was summoned. The charge u/sec 286 IPC and 9 (B) of Explosives Act was framed against accused on 28.04.2008 to which he pleaded not guilty and claimed trial.
3. That in order to prove their case the prosecution has examined three witnesses in the present case.
4. The PW1 HC Harvir Singh is the duty officer. He has deposed that on 01.11.2005 he received rukka and on the basis of which, he registered FIR, which is Ex PW 1/A. FIR No. 530/05 2/7 STATE VS. RAJ KUMAR
5. The PW 2 Ct. Joseph is the recovery witness. He has deposed that on 31.10.2005 at about 11.00 pm he alongwith ASI Om Pal Singh had gone to Gali No. 15, A1 Block, Bengali Colony, Sant Nagar, Delhi. They noticed that one person had laid down a chadar in the gali on which he had put a number of fire crackers and he was having no mechanism to the extinguish any fire. ASI Om Pal Singh asked that person to show the licence for selling the fire crackers but he failed to produce any licence. Accused after interrogation disclosed his name as Raj Kumar. IO ASI Om Pal Singh collected all the fire crackers, put them in a plastic katta which was arranged from there itself and instructed him to bring a weighing scale which he brought from the nearby shop. IO weighed the fire crackers and it came out to be 13 kgs. Two kgs. of fire crackers were separated for sample and were sealed with the seal of OPS. FSL form was filled at the spot. Plastic katta containing remaining fire crackers was also sealed with the seal of OPS. Seal after use was handed over to him. Case property was seized vide seizure memo Ex. PW2/A. IO prepared Rukka and handed over the same to him. He went to the police station got the case registered and returned to the spot with copy of FIR and original Rukka and handed over the same to IO. IO prepared the site plan. Accused was arrested vide arrest memo Ex. PW2/B and his personal search was conducted vide personal search memo Ex. PW2/C. His statement was recorded by the IO.
6. The PW 3 HC Isham Singh is the MHC (M). He has deposed that on 31.10.2005, ASI Om Pal Singh deposited with him one while plastic FIR No. 530/05 3/7 STATE VS. RAJ KUMAR katta sealed with the seal of OPS, and one pullanda containing fire crackers i.e. explosive substance of two Kg. for sample also sealed with the seal of OPS and form CFSL. The same were deposited by him in Malkhana and entry was made in Register No. 19 at serial No. 3812. On 03.03.2010 the sample alongwith form CFSL Form were sent to CFSL examination through HC Suresh vide RC No. 15/21. The photocopy of relevant entry is Ex. PW3/A.
7. That on 06.03.2012 the prosecution evidence was closed as the matter was since pending since 2008 and prosecution failed to produce all the material witnesses despite number of opportunities. That on 20.04.2012 after the conclusion of prosecution evidence the statement of accused namely Raj Kumar u/s 281 Cr. PC was recorded. Accused denied all the allegations which has been levelled against him. The defence evidence was not led by the accused.
8. I have heard the Ld. APP for the State and Sh A. K. Tyagi Ld. counsel for accused and gone through the record.
9. The first allegation allegation which has been levelled against the accused is that the accused was selling the fire crackers without taking necessary precautions while dealing combustible material. That only one recovery witness has been examined and CFSL report regarding fire crackers was never filed by the Investigation Authority. Thus it has not proved that the articles recovered were indeed fire crackers.
FIR No. 530/05 4/710.The PW2 merely stated that the accused was not having any mechanism to extinguish any fire. That apart from this allegation there is no other circumstances which proves the ingredient of section 286 IPC. The essential ingredient of section 286 IPC is the rash and negligent act while dealing with explosives substances. The term rash and negligent act in the context of driving of vehicle has been interpreted as acting without due care and caution and being oblivious of the consequences of the act. To support this view I am guided by judgment of Hon'ble Supreme Court in 2001 (2) MWN (Cr.) SC 77 : (2000 Cri LJ 3508) (Mohammed Aynuddina alias Miyam v. State of Andhra Pradesh). In the present in hand the only allegation as per the statements of witnesses namely ASI Om Pal Singh and Ct. Joseph are that the accused was found selling fire crackers without having valid license for the same and not having any mechanism for fire extinguishment. That apart from this no other circumstance has been proved which could show lack of care and caution while dealing with crackers. It is also admitted fact that accused was selling the crackers in the open area in the gali. Thus there was only remote possibility of any mishappening in the open area. Further mere non possession of license for selling the fire crackers can not be termed as rash and negligent act while dealing withe explosive substances. In this circumstances no offence under section 286 IPC is made out against the accused.
11.The second allegation which has been leveled against the accused is the possession of fire crackers without any valid license issued by FIR No. 530/05 5/7 STATE VS. RAJ KUMAR competent authority punishable under section 9 B of Explosive Act. The rule 128, of Explosive rules 2008 framed under the Explosive Act, specifically authorizes police officials not below the rank of Sub Inspector to search and seized the articles under the act. In the present case in hand admittedly the seizure of fire crackers has been done by ASI Om Pal Singh. Thus the seizure itself become illegal and inadmissible in evidence. To support this view I am guided by judgment of Hon'ble Supreme Court in 1194 CRI. L. J. 3702 (State of Punjab Vs. Balbir Singh). Even otherwise for the want of FSL report it cannot be presumed that the articles seized were explosives as defined in section 4 (d) of Act.
12.In view of the above stated reasons, the prosecution has miserably failed to discharge its burden of proving the case against accused beyond reasonable doubt. In view of the same, accused Raj Kumar is acquitted u/s 286 IPC & 9B of Explosive Act. Bail bond and surety bond stands discharged.
File be consigned to Record Room.
(Announced in the open court)
Dated: 19.10.2012 (GAGANDEEP SINGH)
MM01/NORTH
TIS HAZARI : DELHI
FIR No. 530/05 6/7
STATE VS. RAJ KUMAR
CC/FIR No. 530/05
P.S. TIMAR PUR
STATE VS. RAJ KUMAR
19.10.2012
Present: Ld. APP Sh. Manan Munjal for the State.
Accused in person with Ld. counsel Sh A. K. Tyagi. Final arguments heard.
Vide my separate detailed judgment of the even date the accused is acquitted for the offence u/s 286 IPC & 9 B of Explosive Act. Accused wishes to adopt bail bond and surety bond. Previous bail bond and surety bond stands adopted for the purpose of Section 437A of Cr.PC. They shall remain valid for period of six months from today. Original documents returned as per rules.
File be consigned (GAGANDEEP SINGH) MM01/NORTH DELHI 19.10.2012 FIR No. 530/05 7/7 STATE VS. RAJ KUMAR