Delhi District Court
State vs Khem Prasad @ Raju on 12 December, 2023
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 27440/2016 CNR No. DLCT01-000105-2011
FIR No. 130/2010
U/Sec. 4/5/6 Explosive Substance Act
P.S. Karol Bagh
STATE VERSUS KHEM PRASAD & ORS.
(i) SC No. of the case : 27440/2016
(ii) Date of commission of offence : 02.12.2010
(iii) Name, parentage and address : 1) Khem Prasad @
of accused Raju S/o Sh. Nand Lal
Shareshth R/o Village
Agah Bazar, P.S. Rirhi
Anchal Lumbini,
Distt. Gulmi, Nepal
2) Purshottam Lal Mehta
S/o Sh. Lajpat Rai Mehta
R/o Behind Roadways Bus
Stand, Tosham, Distt.
Bhiwani, Haryana
3) Lok Nath Panth
(Accused is P.O. vide
order dated 08.03.2018)
(File separated vide
order dated 15.10.2012)
S/o Sh. Tulsi Ram Panth
R/o Village Agah Bazar
P.S. Rirhi, Anchal
Lumbini, Distt. Gulmi
Nepal
(iv) Offence complained of : u/Sec.4/5/6 The Explosive
Substance Act
SC No. 27440/2016
FIR No. 130/2010
State Vs. Khem Prasad & Ors. Page 1 of 35
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Accused no. 1 Khem
Prasad and accused no. 2
Purshottam Lal Mehta
are acquitted.
Date of Institution : 29.03.2011
Date of Judgment reserved on : 08.12.2023
Date of Judgment : 12.12.2023
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of SI Rajesh Kumar Sah Police Officer for Special Staff, Central District Delhi / PW-6 the complaint of which is Ex.PW6/A dated 02.12.2010 at about 6.35 p.m. The PW-6 had received this information of offence around 5.15 p.m. from a secret informer and the secret informer had told this information to HC Yaadram. The information was that one Nepali person was supplying explosives to Maoist at Nepal who will catch a train from Karol Bagh on the same day around 6.30 p.m. DD No.17 was registered and raiding party was constituted by PW-6 with HC Yaadram after obtaining permission from Incharge Officer Sh. Satender Mohan around 6.10 p.m. near a small round about at MCD School, China Market, Karol Bagh the position was taken. Around 6.35 p.m. a Nepali person having 'Pithu' bag behind his back was arrested on pointing out by the secret informer and when his bag and person was checked then explosives and safety fuse wire was recovered from his person. The name of the Nepali boy was revealed as SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 2 of 35 Sh. Lok Nath Panth S/o Sh. Tulsi Ram Panth who was resident of Nepal.
Non-electric detonators were recovered with fuse wire which were sealed in pullandas Sr. No.1A, Sr. No.2A, Sr. No.3A, and the sample was packed in pullandas Sr. No.1, 2 & 3 respectively. The recovered substance was found in possession without any licence and the accused person was charged under Section 4/5 of the Explosive Substance Act, 1908. Rukka was sent in the matter through HC Brij Pal/PW-8 and FIR PW1/B was registered in the matter. The endorsement on the rukka was made by Duty Officer/ PW-1 vide Ex.PW1/C.
2. The challan was filed in the matter on 28.02.2011 and the accused were proceeded against with after taking of the cognizance on 14.03.2011. The chargesheet was filed by SI Yogender Kumar. The accused No.3 Lok Nath Panth was proceeded against under Section 82 Cr. P. C. The proceedings against accused Lok Nath Panth were separated who was declared Proclaimed Offender and the same was also recorded in the cross examination dated 08.03.2018 of PW-6. Charge was given to accused No.2 Khem Prasad in that prior to 05.02.2010 he had provided premises for 2-3 days vide bearing No.13/1, Concreat House near China Market, Karol Bagh, Delhi to accused Lok Nath Panth and caused abetment of commission of offence under Section 4/5 of the Explosive Substance Act, 1908 punishable under Section 6 of the Explosive Substance Act, 1908. Accused Purshottam Lal Mehta was charged with actualizing a deal and procuring 500 detonators and thereby caused abetment to get delivered the detonators from Sh. Ram Krishan Bansal to accused Lok Nath Panth in the month of November, 2010 in violation of Section 6 of the Explosive Substance Act, 1908. Both the accused not SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 3 of 35 pleaded guilty to the charge and the prosecution had led witness PW-1 to PW-12 to substantiate their case. The State had dropped witness HC Raj Kumar and Ct. Ombir on the ground of repetitive facts. The statement of accused Khem Prasad and accused Purshottam Lal Mehta was recorded under Section 313 Cr. P. C. on 18.11.2019 and thereafter the accused had led a sole witness DW-1. The evidence in defence was close vide joint statement of both the accused dated 31.03.2022.
3. Final arguments are heard on behalf of both the parties and record perused.
3.1 Ld. Counsel for accused has relied on following citations:
(i) Lopchand Naruji Jat & Anr. Vs. State of Gujarat (2004) 7 SCC 566
(ii) Francis Xavier Salemao & Anr. Vs. State through Public Prosecutor 2007 SCC Online Bom 1261
(iii) Kamal Sheikh & Anr. Vs. State of Jharkhand 2013 SCC Online Jhar 582
(iv) Rejaul Karim @ Kiran Sk. Vs. The State of Jharkhand in Criminal Appeal (DB) No. 259 of 2023 dated 12.04.2023
(v) Sharuddin Ansari @ Sharuddin Ansri Vs. The State of Jharkhand in Criminal Appeal (DB) No. 191 of 2023 dated 19.04.2023
4. The legal arguments raised by the Learned counsel for the accused is that he charge under Section 4 of The Explosive Substance Act, 1908 which provides stricter punishment upto 10 years in prison and when SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 4 of 35 the explosive is of special nature then it also provides for rigorous punishment for life. It is submitted that intent of the accused in the present case was absent and it is the case of the prosecution that the fuse wire and the detonators were never joined together to form a explosive and therefore, it never formed an explosive to become a live detonator. The objective vide which the Explosive Substance Act, 1908 was enacted was for the purpose to deal with Anarchist Crimes where unlawful intent was involved.
5. It is further submitted by the learned counsel for the accused that the definition of the explosive was laid in Section 4 (d) of the Explosives Act, 1884. It is submitted that PW-4 in cross examination dated 19.02.2015 at page No. 2 had admitted that the present case pertains to Section 3, 4 & 5 of the Explosives Act, 1884 and not to the Explosive Substance Act, 1908.
6. It is submitted by the learned counsel for the accused that Section 5 of the Explosives Act, 1884 requires licence which was not obtained by accused Lok Nath Panth and thereby it is at best a case against accused Lok Nath Panth only and not against the other accused. For not having a licence is dealt with under Section 9 (B) of the Explosives Act, 1884 for which maximum punishment is 3 years or with fine or with both. It is submitted that Sh. Ram Krishan Bansal was a licenced vendor. The possession if any was seized from accused Lok Nath Panth and no incriminating evidence is proved against accused No.1 Khem Prasad and accused No.2 Purshottam Lal Mehta. There is no proof that accused No.3 Lok Nath Panth had purchased any article from accused No.1 Khem SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 5 of 35 Prasad and No.2 Purshottam Lal Mehta Unlawful intention on the part of the accused person is absent.
7.1 It is case of the prosecution that the accused Lok Nath Panth told to the IO that one Sh. Jakh Bahadur had sent him to India to bring the detonators and fuse wires. He met Sh. Prem Bahadur in Delhi who was in reference to Sh. Jakh Bahadur. Sh. Prem Bahadur took accused Lok Nath Panth to place Tosham Diwani where he introduced him to accused Purshottam Lal Mehta. Accused Purshottam Lal Mehta was running a stone crusher who had provided detonators and fuse wires on payment to accused Lok Nath Panth. At place Tosham Diwani the accused Lok Nath Panth had stayed at the residence of accused Khem Prasad @ Raju. Accused Khem Prasad @ Raju is from native village of accused Lok Nath Panth. Accused Khem Prasad @ Raju was arrested by IO on 05.12.2010 on pointing out of accused Lok Nath Panth. The disclosure statement of the accused Khem Prasad @ Raju was recorded in that accused Lok Nath Panth stayed with him for 2/3 days and accused Khem Prasad had provided help to accused Lok Nath Panth to conceal the detonators and fuse wires underneath his clothes. During search of rented room of accused Khem Prasad @ Raju 81 torn packets were recovered under his bed at his instance. The packets were torn pieces of papers which would have contain detonators and it was written on the packet that "SPD superplain detonators 100 Nos hand carefully dangerous hand carefully, use crumper for assemble proper crimping averts misfires, danger explosive 100 Nos, Rajasthan Explosive and Chemical Ltd., Dholpur, India".
SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 6 of 357.2 Both the Explosive Substance Act, 1908 and the Explosive Act are perused. The object laid down under Explosive Substance Act, 1908 is not only possession of explosives substances but such possession must be with unlawful intent and therefore it provides strict punishment than the Explosives Act, 1884. Therefore, to make out a case under Explosive Substance Act, 1908 the prosecution needs to establish unlawful intent on the part of accused person. Now the case before the present Court is pending against the accused Khem Prasad and Purshottam Lal. In the entire evidence of prosecution witness the prosecution has failed to prove that there was any unlawful intent on the part of above two accused person for use of the alleged detonators and fuse wire for unlawful purpose. In the complaint Ex.PW6/A mentions that the information was that a Nepali person used to supply explosive material to Maoist at Nepal will go from Karol Bagh in the evening. According to prosecution the said detonators are to be used by the accused person for supply to Maoist and those Maoist would have to use the explosive substance for illegal explosions at Nepal. However there is no iota of evidence against the accused person that they had any link with the Maoist at Nepal. Nor there is any link to show that this explosive substance allegedly had to be received by Maoist at Nepal for causing there illegal explosion. No factual link is shown between accused person and Maoist. Even the identity of alleged Maoist is not proved on record by the prosecution. Hence the existence of alleged Maoist at Nepal is itself in doubt. Therefore there is absence of any evidence on record to show that the explosive substance seized from the accused person had to be supplied to Maoist. The prosecution has entirely relied on disclosure statement made by accused Lok Nath Panth which is Ex.PW8/C. However there is no recovery in Ex.PW8/C pursuant to SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 7 of 35 Section 27 of Indian Evidence Act, 1872 and therefore the said disclosure about having any connection with any Maoist has no value in the eyes of the law. The above allegation of prosecution are unsubstantiated. Hence it cannot be said by any standard of proof that the accused had any link with Maoist at all. Hence the intent to cause explosion by the accused person to assist in any such explosion to be caused by the alleged Maoist is absent. Hence the prosecution has failed to prove that its case under Explosives Substance Act, 1908.
7.3 Ld. Counsel for accused person has submitted that even if believing the story of prosecution is true then at the most the possession of explosives has to be dealt only under Section 9B of Explosives Act, 1884 and under which the possession is punishable at the most for a period of two years or with fine or with both. It is submitted that against accused Khem Prasad and accused Purshottam Lal Section 9B of Explosives Act, 1884 is not applicable as they were not found in the possession of said explosives. The relevant section is reproduced hereasunder:
Section 9B in The Explosives Act, 1884 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) manufactures, imports or exports any explosive shall be punishable with imprisonment for a term, which may extend to three years, or with fine which may extend to five thousand rupees, or with both;
(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; and
(c) in any other case, with fine which may extend to one thousand rupees.
(2) Whoever in contravention of a notification issued under section 6 manufactures, possesses or imports any explosive shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both; and in the case of importation by water, the owner and master of the vessel or in SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 8 of 35 the case of importation by air, the owner and the master of the aircraft, in which the explosive is imported shall, in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees.
(3) Whoever,--
(a) manufactures, sells, transports, imports, exports or possesses any explosive in contravention of the provisions of clause (a) of section 6A; or
(b) sells, delivers or despatches any explosive in contravention of the provisions of clause (b) of that section, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both; or
(c) in contravention of the provisions of section 8 fails to give notice of any accident shall be punishable,--
(i) with fine which may extend to five hundred rupees, or
(ii) if the accident is attended by loss of human life, with imprisonment for a term which may extend to three months or with fine or with both.
8. Now the case of the prosecution is that the detonators were obtained by the accused Purshottam Lal Mehta by abetting Sh. Ram Krishan Bansal to deliver the said detonators to co-accused Lok Nath Panth. The prosecution has to prove that the said detonators were delivered by Sh. Ram Krishan Bansal to accused Lok Nath Panth through accused Purshottam Lal Mehta. PW-3 Sh. R. K. Singh who is Nodal Officer for Bharti Airtel Ltd. has produced the record of mobile No.8800685220 in the name of Sh. Bhim Lal Pandey. The Customer Application Form is Ex.PW3/A. The identity proof which is the driving licence is marked PX, Tally Calling Feedback Form is marked PY. The mobile call details for period from 15.11.2010 to 05.12.2010 is Ex.PW3/B1 to Ex.PW3/B28. The roaming details are Ex.PW3/C. The certificate under Section 65B of the Indian Evidence Act is filed. The PW-3 in cross examination had admitted that he has not brought the location chart of the call details. Ex.PW3/C is perused from which the calls between accused could not be ascertained from Ex.PW3/C. Hence it cannot be said that the said phone number which SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 9 of 35 is in the name of Sh. Bhim Lal Pandey was used by accused to obtain the detonators or that it was used to have conversation with Sh. Ram Krishan Bansal. The prosecution has not only to state that which particular phone number was used by the accused with specific pointing out of call details in relevant exhibits and during talk to commit necessary abetment alleged against the accused persons. This is absent in the deposition of PW-3. The connection of accused persons with Sh. Bhim Lal Pandey is also not proved. In such view of matter, it cannot be said that from what particular place any conversation was made by accused persons in respect of hiring and obtaining the detonators and fuse wires illegally. The manner of abetment is unclear. Other than this the prosecution has not examined Sh. Ram Krishan Bansal to prove that the said detonators were bought from Sh. Ram Krishan Bansal or that Sh. Ram Krishan Bansal was misled by the accused persons to illegally obtain the detonators and fuse wires. On non-production of Sh. Ram Krishan Bansal on record neither it can be said that Sh. Ram Krishan Bansal was having licence to obtain the detonators nor that such detonators were supplied by Sh. Ram Krishan Bansal. No invoice is proved of such selling of detonators and fuse wires by Sh. Ram Krishan Bansal. Hence it cannot be said that such detonators and fuse wires found in possession of accused Lok Nath Panth were purchased from Sh. Ram Krishan Bansal.
9. Further the case against the accused No.1 Khem Prasad and No. 2 Purshottam Lal Mehta is largely based on the disclosure statement made by accused Lok Nath Panth to the IO. It is settled law that the disclosure statement must be proved on the record in reference to Section 27 of Indian Evidence Act, 1872. Ex.PW8/D is pointing out memo of accused SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 10 of 35 Lok Nath Panth whereby he had pointed out towards the house of accused Purshottam Lal Mehta who had supplied box of detonators and fuse wires to accused Lok Nath Panth. By Ex.PW8/A the another pointing out memo by accused Lok Nath Panth of stone crusher at which place the accused Lok Nath Panth had paid the price of detonator to accused Purshottam Lal Mehta. However, neither the amount of alleged money is recovered from accused Purshottam Lal Mehta nor it is disclosed in the disclosure statement of accused Lok Nath Panth that at what price he had purchased the detonators and fuse wires.
10. The disclosure statement of accused Khem Prasad is Ex.PW9/E. The case of the prosecution is that in the house of accused Khem Prasad the accused Lok Nath Panth had stayed for 2/3 days and packed the detonators and fuse wires. The accused Khem Prasad is charged under Section 4/5 of Explosive Substance Act. The accused Purshottam Lal Mehta is charged under Section 6 of Explosive Substance Act. The law in respect of Section 4 and Section 5 of Explosive Substance Act is dealt in detail in case titled Mohd. Usmaan Mohd. Hussain vs. State of Maharashtra 1981 AIR 1062, 1981 SCR (3) 68 dated 03.03.1981 wherein it is laid down at para no. 9, 15, 16 and para 17 r/w Section 120B of IPC at the relevant para are reproduced hereasunder:
Mohammad Usman Mohammad Hussain vs State of Maharashtra on 3 March, 1981 Equivalent citations: 1981 AIR 1062, 1981 SCR (3) 68 9. Let us first consider the conviction under Section 5 of the Explosives Substances Act. The Section reads as follows:
5. "Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years, to which fine may be SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 11 of 35 added, or with imprisonment for a terms which may extend to five years, to which fine may be added"
10. In order to bring home the offence under Section 5 of the Explosive Substances Act, the prosecution has to prove;
(i) that the substance in question is explosive substance;
(ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and
(iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object. The burden of proof of these ingredients is on the prosecution. The moment the prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea.
11. Explosive substance has been defined in section 2 of the Explosive Substances Act. The definition is as follows:
"2. In this Act the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement."
"Explosive substance" has a broader and more comprehensive meaning than the term 'Explosive', 'Explosive substance' includes 'Explosive'. The term 'Explosive' has not been defined in the Act. The dictionary meaning of the word 'Explosive' is 'tending to expand suddenly with loud noise; 'tending to cause explosion' (The Concise Oxford Dictionary). In the Explosives Act, the terms 'explosive' has been defined as follows:
"4. In this Act, unless there is something repugnant in the Definitions, subject or context,- (1) "explosive"
(a) means gunpowder, nitro-glycerine, dynamite, guncotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above- mentioned or not, used or manufactured with a view to produce a practical effect by explosion, or a pyrotechnic effect; and
(b) includes fog-signals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition of all descriptions, and every adaptation or preparation of an explosive as above defined;"
It may be mentioned that the definition of 'explosive' under Section 4 was amended later, but we are not concerned with the amendment as the occurrence in the instant case took place before the amendment. On a consideration of the evidence of the Explosives Inspector, and other evidence. the Sessions Judge and the High Court have found, in our opinion correctly, that the substances in question were explosive substances within the definition of the expression.
15. Learned counsel for the appellants cited before us 1939 (2) All E. R. 641 in support of his contention. The head note of the report reads:SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 12 of 35
"Upon an indictment against an accused for knowingly having in his possession explosive substances, the prosecution has to prove that the accused was in possession of an explosive substance within the Explosive Substances Act, 1883, s. 9, in circumstances giving rise to a reasonable presumption that possession was not for a lawful object. Proof of knowledge by the accused of the explosive nature of the substance is not essential, nor need any chemical knowledge on the part of the accused be proved."
The appellants have also cited another English decision reported in 1957 (1) All E.R. 665 in which it has been observed:
"We think that the clear meaning of the section is that the person must not only knowingly have in his possession the substance but must know that it is an explosive substance. The section says he must knowingly have in his possession an explosive substance; therefore it does seem that it is an ingredient in the offence that he knew it was an explosive substance."
With respect, the above decisions lay the correct legal proposition. But the question is whether in his case appellants knew that the substances in question were explosive substances. The knowledge whether a particular substance is an explosive substance depends on different circumstances and varies from person to person. An ignorant man or a child coming across an explosive substance may pick it up out of curiosity and not knowing that it is an explosive substance. A person of experience may immediately know that it is an explosive substance. In the instant case, the appellants had been dealing with the substances in question for a long time. They certainly knew or atleast they shall be presumed to have known what these substances they were and for what purpose they were used. In fact, when P. W. 4 Basanna asked for half k. g. of blasting powder, appellants' servant, accused Chandrakant, immediately supplied the requisite powder to P. W. 4 from the shop. This evidence clearly establishes that the appellants did know the nature and character of the substance. In other words, they knew that the substances in question were explosive substances. The courts below therefore, were right in holding that an offence under Section 5 of the Explosive Substances Act was committed.
16. Learned Counsel submitted that the evidence on record shows that appellant, Fakhruddin, alone acquired and possessed the substance in question. That was the plea of Fakhruddin. It also might be true that Fakhruddin also had acquired the substances but the evidence on record clearly shows that all the appellants were in possession and control of the substances in question. The submission of the appellants has no substance and all the four persons are liable for the offence.
17. Now to turn to the conviction under Section 120B of the Penal Code. Section 120B provides:
"120B. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable........... "
`Criminal conspiracy' has been defined under Section 120A of the SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 13 of 35 Penal Code as follows:
"120 A. When two or more persons agree to do, or cause to be done.-
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:-
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some tact besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object,"
The contention of learned counsel is that there is no evidence of agreement of the appellants to do an illegal act.
It is true that there is no evidence of any express agreement between the appellants to do or cause to be done the illegal act. For an offence under section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. In this case, the fact that the appellants were possessing and selling explosive substances without a valid licence for a pretty long time leads to the inference that they agreed to do and/or cause to be done the said illegal act, for, without such an agreement the act could not have been done for such a long time.
11. Now it has to be seen that whether accused Khem Prasad @ Raju had caused abetment of the offence under Section 4/5 of Explosive Substances Act punishable under Section 6 of Explosive Substances Act. Accused Purshottam Lal Mehta is also charged with abetment punishable under Section 6 of Explosive Substances Act.
12. Now it has to be seen that whether there is necessary sanction with the prosecution to prosecute the accused in the present case. PW-12 Sh. D.M. Sapolia, Retd. District Magistrate has deposed that he had received letter dated 10.01.2011 for grant of prosecution sanction under Section 7 of Explosive Substances Act in FIR no. 130/10 dated 02.12.2010 registered under Section 4/5/6 of Explosive Substances Act and the prosecution was sought. The accused person are Lok Nath Panth and SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 14 of 35 Khem Prasad. He had after careful consideration of the case file and the documents enclosed awaiting CFSL report was satisfied that prima facie the alleged offence was committed then sanction was granted for prosecuting accused Lok Nath Panth and accused Khem Parsad @ Raju vide Ex.PW12/A. Hence sanction for prosecution is proved against accused Lok Nath Panth and accused Khem Parsad @ Raju.
13. PW-11 Sh. N.B. Bardhan, Director CFSL CBI had received the sealed parcels no. 1(A), 2(A) and 3(A). On examination of the said parcel he found the contents of parcel no. 1(A) was a piece of safety fuse wire which can form a component of a explosive device. On physico chemical examination it was found that the explosive was based on black powder composition in the safety fuse wire. It is further deposed that the contents of parcel no. 2(A) and 3(A) together contained 10 non-electronic detonators which were live and formed components of explosive device. On the basis of physico chemical examination, PETN based high explosive is detected in the 10 non-electronic detonators. The examination report dated 07.10.2011 is Ex.PW11/A. It is admitted a correct in cross- examination that the said detonators were factory made detonators and there was no improvisation of the same. It is further admitted as correct that both electrical and non-electrical detonators have quantity of PETN (Penta Erethitol Tetra Nitrate) and without presence of PETN the said detonator cannot act or react. Hence the deposition of PW-11 had proved that the sample detonators were in working order and the fuse wire can form a component of an explosive device which was found on the basis their examination in terms of report Ex.PW11/A. However, they were found as factory made detonators and not as improvised version of SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 15 of 35 detonators.
14. Now it has to be seen that whether the role alleged against accused Khem Parsad is sufficient and satisfy the ingredient of the statute against which he is charged with. The role of accused Khem Parsad is already discussed above at para above. It is case of the prosecution that the accused Khem Parsad @ Raju is from the native village of accused Lok Nath Panth. Since accused Khem Parsad is staying away from his native village then it is natural for another person from his native village to come and seek a stay with accused Khem Parsad @ Raju. Hence staying of accused Lok Nath Panth with accused Khem Parsad is a natural/normal process in the ordinary day to day life. No evidence has come on record that whether accused Khem Parsad @ Raju had kept any other person with him other than from his native village or even from his native village having found in possession with explosive substances. The present incident is the one instance against which accused Khem Parsad is charged with. The disclosure statement of accused Khem Parsad mentions that he had provided help to accused Lok Nath to conceal the detonators and fuse wires under his clothes. During search 81 torned packets were recovered under his bed. Now it has to be seen that how much of the disclosure statement can be admitted under Section 27 of Indian Evidence Act, 1872. The relevant law in this regard is reproduced hereasunder:
It was held by Hon'ble Supreme Court of India in case titled Oma @ Omprakash & Anr vs State of Tamilnadu on 11 December, 2012 CRIMINAL APPEAL NO. 143 OF 2007=2012 Latest Case law 717 SC as under:
37. In Dwarkadas Gehanmal v. State of Gujarat (1999) 1 SCC 57, this Court has held that it is for the prosecution to prove that the object recovered has nexus with the crime. This Court in Mustkeem alias SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 16 of 35 Sirajudeen v. State of Rajasthan (2011) 11 SCC 724 held, "what is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution." This Court held as follows:
"With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
38. In this case, the prosecution could not prove that the rod recovered has any nexus with the crime alleged to have been committed by A-2. We are of the view that the prosecution, therefore, could not establish the guilt of the second accused beyond reasonable doubt. The High Court, therefore, committed a gross error in awarding life sentence to A2.
It was further held by Hon'ble High Court of Delhi in case titled Neeraj Alias Nagar vs State (Nct Of Delhi) on 14 November, 2019 in CRL.A. 88/2019 has held as under :
Recovery of weapon of offence
33. Further during the course of arguments an apprehension was expressed that the recovery of knife and dandas pursuant to the disclosure statement of the accused persons is not admissible in the eyes of law and the same was planted in order to falsely implicate the accused persons.
34. It is apparent from the record that pursuant to the disclosure statement of accused persons and subsequent pointing out, the alleged weapons of the offence (knife and Danda) were recovered. According to Section 25 of the Indian Evidence Act 1860, no credence can be placed upon the confession made by the accused, which reads as under:
"25. Confession to police officer not to be proved No confession made to a police officer shall be proved as against a person accused of any offence."
35. However, Section 27 of the Indian Evidence Act is in the nature of a proviso or an exception which partially lifts the prohibition imposed by Section 25 and reads as under:
"Section 27 of the Indian Evidence Act:
27. How much of information received from accused may be proved.--
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
36. In the light of Section 27 of the Indian Evidence Act, 1872 whatever information is given by the accused in consequence of which a fact is discovered then only the fact so recovered would be admissible in the SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 17 of 35 evidence, regardless whether such information amounts to a confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from an accused; such a discovery is true and admissible. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes reliable information.
37. In view of the law discussed above, it is clear, Section 27 of the Indian Evidence Act, 1872 is applicable, if a confessional statement leads to discovery of some new facts. It is further not in dispute that a fact discovered on information furnished by an accused in his disclosure statement is a relevant fact and is admissible in evidence if something new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused (Ref: Kamal Kishore Vs. State (Delhi Administration), (1997) 2 Crimes 169 (Del).
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44. In relation to the recovery of articles at the instance of the Accused persons, the Apex Court in a catena of judgments has held that the recovery and the pointing out memo which directly links the accused persons with the commission of the alleged offence is relevant and is admissible in the eyes of the law. While dealing with such a case, the Hon'ble Supreme Court of India in the case of Debapriya Pal vs. State of West Bengal reported at (2017) 11 SCC 31 has held as under: -
"10. ...Under Section 27 of the Evidence Act only so much of recovery, as a result of the disclosure statement, which directly pertains to the commission of crime is relevant. Otherwise, such an evidence is barred Under Section 25 of the Evidence Act. Recovery of laptop does not have any bearing. It is neither the weapon of crime nor it has any cause of connection with the commission of crime. The law on this aspect is succinctly said in the case "Jaffar Hussain Dastagir v. State of Maharashtra: (1969) 2 SCC 872 in the following manner:
5. Under Section 25 of the Evidence Act no confession made by an Accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an Accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the Accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the Section is that the information given by the Accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 18 of 35 discovery of the fact must relate to the commission of some offence."
(emphasis supplied)
45. It was extensively argued by learned counsel for the accused persons that the abovementioned recovery of knife and danda's is not admissible in the eyes of the law because no genuine and sincere efforts were made by the investigating officer to authenticate the recovery with the presence of an Independent/Public witness.
46. There is no good reason for this Court to disbelieve the said recovery merely because the recovery witnesses PW-33, (Insp Jarnail Singh), PW- 32 (SI Manmeet) PW-20 (SI Rakesh Kumar) and PW-32 (Insp. Parasnath Verma) happen to be police officers. In this context, we rely on the case of Kripal Singh v. the State of Rajasthan reported in (2019) 5 SCC 646. The germane portion of the judgment is extracted below: "17. The submission of the learned senior counsel for the Appellant that recovery has not been proved by any independent witness is of no substance for the reason that in the absence of independent witness to support the recovery in substance cannot be ignored unless proved to the contrary. There is no such legal proposition that the evidence of police officials unless supported by independent witness is unworthy of acceptance or the evidence of police officials can be out rightly disregarded."
(emphasis supplied)
47. We are thus of the opinion that in the instant case, non-joining of public witnesses at the time of recovery is not a sufficient ground to doubt the truthfulness of the police witnesses on the above aspect or discard their evidence completely as the testimonies of the police witnesses inspires confidence.
48. Keeping in view the facts of the present case and on the basis of corroborative testimonies of the material police witnesses, we find no cogent reason to disbelieve the recovery made by the Investigating team at the instance of the accused persons. The testimonies of the prosecution witnesses in relation to the recovery made pursuant to the disclosure statement are consistent, trustworthy and corroborative; as such the ground raised by learned counsel for the accused persons in relation to the inadmissibility of the recovery of weapon of offence made at the instance of the accused persons holds no ground.
15. The accused Khem Prasad had identified his rented accommodation vide Ex. PW9/A. Accused Lok Nath Panth in his disclosure statement Ex.PW8/C has stated that at the house of accused Khem Prasad the accused Purshottam had taken out detonators and hidden them by stitching in his jacket. Accused Lok Nath Panth made a belt of clothes and in that belt also he had hidden the detonators. It is disclosed SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 19 of 35 that the torned pieces empty 'Dibbi' were hidden by accused Khem Prasad at some place. Whereas in the disclosure statement of accused Lok Nath Panth it is disclosed that at the house of accused Khem Prasad the accused Lok Nath Panth had stitched the detonators and packed them. In disclosure statement of Khem Parsad Ex.PW9/E it is mentioned that he had kept the cardboard 'Dibbi' in a plastic carry bag at his house. The disclosure statement is dated 05.12.2010 and the identification memo of accused Khem Prasad by accused Lok Nath Panth is Ex.PW9/K dated 03.12.2010. it is settled law that the confessional statement of a co-accused against another co-accused is inadmissible in evidence unless there is other substantial direct evidence in this regard. The relevant citation is reproduced hereasunder:
2023 SCC OnLine SC 984 from Hon'ble Supreme Court of India in Criminal Appeal No. 1030/2023 Manoj Kumar Soni Versus State of Madhya Pradesh Disclosure Statements
21. The facts of the case reveal that all the accused persons made disclosure statements to the I.O. whereupon recovery of money, jewellery, etc. was effected. Although it is quite unusual that all five accused, after being arrested, would lead the I.O. to the places for effecting recovery of the stolen articles, we do not propose to disbelieve the prosecution plea only on this score. Manoj's involvement was primarily based on the disclosure statements made by co-accused Suleman and Jaihind where they admitted to selling the stolen articles to him and a similar statement made by Manoj himself which led to recovery under Section 27, Evidence Act. Similarly, both the courts below, in convicting Kallu, largely relied upon the disclosure statement made by Kallu himself as well as co-accused Jaihind, who confessed to giving Rs. 3,000.00 to Kallu from the stolen money and storing a country-made pistol along with three cartridges at his house/tapra.
22. A doubt looms : can disclosure statements per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt.SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 20 of 35
23. The law on the evidentiary value of disclosure statements under Section 27, Evidence Act made by the accused himself seems to be well-
established. The decision of the Privy Council in Pulukuri Kotayya v. King-Emperor4 holds the field even today wherein it was held that the provided information must be directly relevant to the discovered fact, including details about the physical object, its place of origin, and the accused person's awareness of these aspects. The Privy Council observed:
The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into s. 27 something which is not there, and admitting in evidence a confession barred by s. 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.
24. The law on the evidentiary value of disclosure statements of co-
accused too is settled; the courts have hesitated to place reliance solely on disclosure statements of co-accused and used them merely to support the conviction or, as Sir Lawrence Jenkins observed in Emperor v. Lalit Mohan Chuckerburty5, to "lend assurance to other evidence against a co-accused". In Haricharan Kurmi v. State of Bihar6, this Court, speaking through the Constitution Bench, elaborated upon the approach to be adopted by courts when dealing with disclosure statements:
13. ...In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.
25. In yet another case of discrediting a flawed conviction under Section 411, IPC, this Court, in Shiv Kumar v. State of Madhya Pradesh7 overturned the conviction under Section 411, declined to place undue reliance solely on the disclosure statements of the co-accused, and held:
24. ..., the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles.
The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 21 of 35 charge under Section 411 IPC. The prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing." [William Shakespeare, Merchant of Venice, Act 1 Scene 1.]
26. Coming to the case at hand, there is not a single iota of evidence except the disclosure statements of Manoj and the co-accused, which supposedly led the I.O. to the recovery of the stolen articles from Manoj and Rs. 3,000.00 from Kallu. At this stage, we must hold that admissibility and credibility are two distinct aspects and the latter is really a matter of evaluation of other available evidence. The statements of police witnesses would have been acceptable, had they supported the prosecution case, and if any other credible evidence were brought on record. While the recoveries made by the I.O. under Section 27, Evidence Act upon the disclosure statements by Manoj, Kallu and the other co- accused could be held to have led to discovery of facts and may be admissible, the same cannot be held to be credible in view of the other evidence available on record.
27. While property seizure memos could have been a reliable piece of evidence in support of Manoj's conviction, what has transpired is that the seizure witnesses turned hostile right from the word 'go'. The common version of all the seizure witnesses, i.e., PWs 5, 6, 11 and 16, was that they were made to sign the seizure memos on the insistence of the 'daroga' and that too, two of them had signed at the police station. There is, thus, no scope to rely on a part of the depositions of the said PWs 5, 6, 11 and 16. Viewed thus, the seizure loses credibility.
28. This Court in Sanjeet Kumar Singh v. State of Chhattisgarh8 held:
18. But if the Court has -- (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats.
29. The testimony of the seizure witnesses, we are inclined to the view, is the only thread in the present case that could tie together the loose garland, and without it, the very seizure of stolen property stands falsified. We cannot overlook the significance of the circumstance that all SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 22 of 35 four independent seizure witnesses (PWs 5, 6, 11, and 16), who were allegedly present during the seizure/recovery of the stolen articles from Manoj's house, having turned hostile and not support the prosecution case, the standalone evidence of the I.O. on seizure cannot be deemed either conclusive or convincing; the recoveries made by him under Section 27, Evidence Act must, therefore, be rejected.
30. The material inconsistency in Kallu's case is the contradiction in the depositions of the I.O. and the complainant. The I.O. deposed that he, upon the disclosure by co-accused Jaihind, successfully recovered a sum of Rs. 3,000.00 (comprised of three one-thousand-rupee notes), seized the same in the presence of witnesses, and prepared a seizure panchnama; however, when one looks at the complainant's version, it is wholly inconsistent. She stated in her deposition that the accused persons did not take away any one-thousand-rupee note from her house. It does not escape our attention that the conviction of Kallu entirely hinges on the alleged recovery of Rs. 3,000.00 and both the courts below heavily relied on this aspect to convict him of criminal conspiracy. However, it does not appear from a perusal of the Trial Court's judgment as to who exactly the seizure witnesses were in whose presence Rs. 3,000.00 was recovered although it does seem that none of the several prosecution witnesses, who were witnesses of arrest and seizure, had supported the prosecution case. Although there could be evidence aliunde to establish the guilt of the co-accused Jaihind, Arif and Suleman, there was absolutely no evidence worthy of consideration which could have been relied on to convict Manoj and Kallu.
31. It is clear as crystal that the sole connecting evidence against Manoj and Kallu was the recovery based on their disclosure statements, along with those of the other co-accused but this evidence, in our opinion, is not sufficient to qualify as "fact ... discovered" within the meaning of Section 27. Having regard to such nature of evidence, we view the same as wholly untrustworthy.
16. The information that the 'Dibbi made of cardboard' were concealed by accused Khem Prasad at his house were already in information of the police/investigating agency on 02.12.2010 vide Ex.PW8/C. Hence no new information in this regard came in the knowledge of police vide disclosure statement of accused Khem Parsad dated 05.12.2010 vide Ex.PW9/E. In fact the police had reached at the door of the tenanted accommodation of accused Khem Prasad on 03.12.2010 vide Ex.PW9/A. Hence police already had information about SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 23 of 35 availability of 'Dibbi made of cardboard' at the house of accused Khem Prasad which it did not made search before hand and in the disclosure statement of accused Khem Prasad vide Ex.PW9/E the investigating agency did not have any new fact discovered to come within the definition of Section 27 of Indian Evidence Act, 1872. Hence the alleged recovery of 'Dibbi' from accused Khem Prasad is shrouded in the elements of doubt and the doctrine of extending benefit of doubt to an accused is held applicable on the accused Khem Prasad notwithstanding a strong suspicion against him.
17. Other than this the prosecution has to prove that the seized 'Dibbi made of cardboard' pertains to those detonators only which were seized from the accused Khem Prasad. PW-9 in cross-examination dated 11.09.2019 at page 5 has deposed that he did not read inscription written on the card pieces which are Ex.P-10 only pertaining to detonators. He did not also read the inscription printed on the torned pieces of cardboard. Similarly PW-10 had deposed that he did not read inscription written on empty torned pieces. PW-11 had in examination dated 11.09.2019 had deposed that 81 card boxes on which detonators and explosives were printed were found under the bed. PW-9 had deposed that the cardboard boxes had print SPD super plane detonators and he had identified 79 pieces of cardboard boxes which are Ex.P-10. PW-10 has also identified 79 pieces of cardboard boxes recovered at the instance of accused Khem Prasad. Hence PW-9 and PW-10 are at variance with PW-11 regarding the number of cardboard boxes recovered from the house of accused Khem Prasad. Hence it cannot be said that the said cardboard boxes are the same boxes which were recovered from the spot at the house of accused Khem Prasad SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 24 of 35 under the bed. In these circumstances also the recovery against the accused Khem Prasad is doubtful. There is no explanation about other card board boxes when the total number of detonators were 500.
18. The other charge against the accused Khem Prasad is that he made the accused Lok Nath Panth to stay with him for 2-3 days which is already discussed above that such stay is normal stay keeping in view that both the person belongs to same village. Other than this the possession of cardboard 'Dibbi' is not a possession of explosive substance. Cardboard 'Dibbi' alone and its possession does not construe explosive under Explosive Substance Act.
19. In view of the above, it cannot be said that the accused Khem Prasad had aided the accused Lok Nath Panth to give a reasonable suspicion that the accused Khem Prasad is not doing so for a lawful object. Another thing which is to be noted that had the accused Khem Prasad were aiding the accused Lok Nath Panth in hiding the cardboard boxes of the detonators then why he would be keeping them under his bed for two long days. Lying of some cardboard pieces under the bed may or may not be within the knowledge of accused Khem Prasad. There is no other evidence against accused Khem Prasad for which it can be said that he was aiding accused Lok Nath Panth during his such stay at his house in transportation of the explosives detonators or that he was hiding the cardboard pieces of the alleged detonators. It is further to be noted that the prosecution has not led a charge against the accused Khem Prasad under specific provision of IPC regarding abetment of offence which could be under Section 107 IPC or under Section 120B IPC or any other provision of IPC. Hence it cannot SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 25 of 35 be held that accused Khem Prasad was abetting the offence or aiding the accused Lok Nath Panth.
20. Further, when search was made of accused Khem Prasad then a respectable person from the locality could be easily joined. Which was not done by the investigating agency in this case and when the respectable person of the locality are available and they have not been joined then this creates doubt of the case of prosecution. Hence benefit of doubt is extended to the accused Khem Prasad and he is acquitted of the offence under Section 4/5 and Section 6 of Explosive Substance Act r/w Abetment of the above offence.
21. Now the case is discussed in reference to accused Purshottam Lal who had allegedly abetted the offence by getting procured the detonators from Sh. Ram Krishan Bansal and got them delivered to the accused Lok Nath Panth. The case of the prosecution is that Sh. Ram Kishan Bansal had due authorisation to sell explosive substance and detonator from whom the alleged detonators were purchased. The alleged detonators were purchased with the aid of accused Purshottam Lal Mehta to deliver them to accused Lok Nath Panth. In what manner the accused Purshottam Lal Mehta had abetted illegally the delivery of detonators and fuse wires is not proved on record by the prosecution. Nor the manner in which Sh. Ram Krishan Bansal was misled by any of the accused is proved on record. What was the specific role played by accused Purshottam Lal Mehta is also not clear in such purchase of detonator. In fact the licence vendor Sh. Ram Krishan Bansal should have satisfied himself before such selling of detonators to the accused Lok Nath Panth. In fact even if it is SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 26 of 35 believed that accused Purshottam Lal Mehta discussed delivery of detonator from Ram Krishan Bansal to accused Lok Nath Panth even then what was such discussion is not proved on record nor it is stated in any evidence of the prosecution witness. Hence it has not come on record that what was allegedly represented by the accused Purshottam Lal Mehta to Sh. Ram Krishan Bansal in absence of which it cannot be said that the accused Purshottam Lal Mehta had aided the delivery of detonator from Sh. Ram Krishan Bansal to accused Lok Nath Panth in any illegal manner. Further, the disclosure statement alone of accused Lok Nath Panth is not sufficient in the present case to give rise to inference that accused Purshottam Lal Mehta had acted in any illegal manner. It is also settled law that only on the basis of disclosure statement of one of the accused is not sufficient to bring home conviction of the other co-accused. (Supra-2023 SCC OnLine SC 984 from Hon'ble Supreme Court of India in Criminal Appeal No. 1030/2023 Manoj Kumar Soni Versus State of Madhya Pradesh) 22.1 It was held in case titled Lopchand Naruji Jat & Anr. Vs. State of Gujarat (2004) 7 SCC 566 by the Hon'ble Supreme Court of India that the explosive is defined under Section 4(b) of the Explosive Act, 1884. For possession of explosive the licence is obligatory for possession, transportation or use of the explosive. The conviction of which is provided under Section 9B of the Explosives Act, 1884. In case titled Francis Xavier Salemao & Anr. Vs. State through Public Prosecutor 2007 SCC Online Bom 1261=(2007) BomCR(Cri) 847 it was held by Hon'ble High Court of Bombay that not only possession of the premises with the accused are to be shown but there must have an element of consciousness or SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 27 of 35 knowledge of that possession. A power or control over that weapon or article must be shown. The specific fact admitted or proved will alone establish the existence of the facto relation of control or the cominion of the person over it to determine the actual possession or of the thing. When there is joint possession then mere presence of other in that room is not sufficient to make him guilty of the offence unless the Court comes to the conclusion that there is reason to believe that he was aware of existence of article of offence in that room with such occupation of that room. When the gun was concealed in such a manner that it was not visible to the naked eye then it could not be said that he was aware of existence of the gun due to which benefit of doubt has to be extended to the accused. Firstly, the element of consciousness or knowledge of that possession with the person charged has to be established. Secondly, the person charged has to have either actual physical possession and where physical possession is not there then he must have power or control over that article of offence. Possession means possession with requisite mental element that is conscious possession and not merely custody without the awareness of the nature of such possession. Suspicion however strong cannot take place of proof beyond reasonable doubt. When there is joint possession then something more is required to be done to prove that the accused was in exclusive and conscious possession in absence of which benefit of doubt has to be extended to the accused. In that case among other in electric detonators with percussion caps was recovered from the accused. The relevant para are reproduced hereasunder:
11. As already observed, the learned Additional Sessions Judge came to the conclusion that the accused was in exclusive and conscious possession of the said articles i.e. arms, ammunitions, etc. because he opened the latch of the door when directed to do so by the raiding party. Possession is a polymorphous term. In Gunwantlal Vs. The State of Madhya SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 28 of 35 Pradesh, the Apex Court with reference to Section 5(1)(a) of Arms Act, 1959 has stated that possession of a firearm must have an element of consciousness or knowledge of that possession and where he is not in actual physical possession, he has nonetheless a power or control over that weapon so that his possession thereof continues despite physical possession being in someone else.... In any disputed question of possession specific facts admitted or proved will alone establish the existence of the facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question. In Pabitar Singh Vs. State of Bihar, the gun was recovered from a room of a quarter which was in joint possession of two persons and one of them was not present at the time of raid and the Apex Court held that the mere presence of the other in that room was not sufficient to make him guilty of the offence unless the Court could come to the conclusion that there was reason to believe that he was aware of the existence of the gun in that room since the prosecution failed to prove that he was in sole occupation of that room at the time of raid and the gun was concealed in such a manner that it was not visible to the naked eyes, it could not be said that he was aware of the existence of the gun. He was given benefit of doubt. The Court also held that although there may be very grave suspicion that the appellant was aware of the existence of the gun but the prosecution is bound to establish facts from which the Court could have reason to believe that he was aware of the existence of the unlicensed fire arm.
12. In Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, the Apex Court, speaking through three learned Judges, stated that "possession is a polymorphous term which may have different meanings in different contexts and it is impossible to work out a completely logical and precise definition of possession uniformly applicable to all situations in the contexts of all statutes. The Supreme Court then referred to Dias & Hughes in their book on Jurisprudence and to Pollock & Wrigtht as well as the case of Gunwantlal v. The State of Madhya Pradesh(supra) and held that the possession of a fire arm must have firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, the person charged has to have either actual physical possession of the fire arm or where he has no such physical possession he has nonetheless a power or control over that weapon. In any disputed question of possession, specific facts admitted, or proved will alone establish the admission of relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question.
13. In Sanjay Dutt Vs. State through C.B.I., Bombay, the Constitution Bench of the Apex Court has held that in the context of the word "possession", possession means possession with requisite mental SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 29 of 35 element, that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is a mental element in the concept of possession.
14. In Madan Lal and Another Vs. State of Himachal Pradesh, the view held in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (supra) has been reiterated and followed. Likewise, the view held in Gunwantlal v. The State of Madhya Pradesh(supra) has also been followed and it has further been held that once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge.
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16. In the case at hand, as the prosecution belatedly realized, the house did not belong to the accused but belonged to his mother in which three more adult persons were residing, namely the accused, his wife and also the sister as reflected on the electoral roll later produced on behalf of the prosecution. The only evidence led by the prosecution to support its case that the accused was in possession of the said arms, ammunitions or explosives is the fact that the accused opened the door of the said room when directed to do so by the raiding party. That the house of the accused was searched, is a story PSI Dessai had to give up when the Mamlatdar informed him that the house stood in the name of the mother of the accused. Prosecution produced no evidence that the room which was searched was in exclusive possession of the accused. The house appears to have been in joint occupation of 4 adult members of the family, including that of the accused. No doubt, the accused is a mechanic and only male member found in the said house and this would raise a strong suspicion against him that he was in possession of the articles but suspicion however strong cannot take the place of proof beyond reasonable doubt. The house, admittedly, was in joint occupation of the aforesaid persons and in case the prosecution wanted to nail the accused with the exclusive possession of the said articles found in the said room something more was required to be done to prove that the accused was in exclusive and conscious possession of the said articles in the said room. Prosecution has failed to prove beyond reasonable doubt that the said articles found in the said room were in exclusive and conscious possession of the accused and on that count the accused certainly deserves to be given benefit of doubt. The ratio in Aiyubkhan Pathan(supra) and Prabitar Singh(supra) is applicable to the facts of the case.
22.2 It was held in case titled Kamal Sheikh & Anr. Vs. State of Jharkhand 2013 SCC Online Jhar 582 by the Hon'ble High Court of SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 30 of 35 Jharkhand that detonator is an explosive in terms of Section 4(b) of the Explosive Act, 1884 and its possession is punishable under Section 9B(i)
(b) of the Explosive Act, 1884 and it does not comes under Explosive Substances Act. Reliance was placed on case titled Lopchand Naruji Jat & Anr. Vs. State of Gujarat (supra) to make a substance as explosive substance the material/machine/apparatus must itself be sufficient to cause explosion. If it is a device used to trigger an explosive device and itself not sufficient to cause explosion counting separately then it comes under the category of explosive defined under Section 4(b) of the Explosive Act, 1884 and not under Explosives Substances Act, 1908. The relevant para are reproduced hereasunder:
In the context of the submission, one needs to take notice of the provision of Section 4(d) of the Explosives Act which reads as follows:
4(d) "explosive" means gunpowder, nitroglycerine, nitroglycol,, gun- cotton, di-nitro-toluene, tri-nitro-- toluene, picric acid, di-nitro-phenol, tri-nitro-resorcinol (styphnic acid), cyclo-trimethylene-tri-nitramine, penta- erythritol-tetranitrate, tetryl, nitro-guanidine, lead azide, lead styphynate, fulminate or mercury or any other metal, diozo-di-nitro- phenol, coloured fires or any other substance whether a single chemical compound or a mixture of substance, whether solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and includes fog-signals, fireworks, fuses, rockets, percussioncaps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosive as defined n this clause"
Further as per Rule 3 of the Explosive Rules, explosives have been classified under Schedule 1. Explosives have been divided into 8 classes. Relevant would be class 6 which reads as follows: "Class 6 Ammunition class;
"Ammunition" means an explosive of any of the foregoing classes when the same is enclosed in any case or contrivance, or is otherwise adapted or prepared so as to form; a cartridge or charge for small arms, cannon or any other weapon, or (b) a safety or other fuse for blasting or for shells, or (c) a tube for firing explosives, or (d) a percussion cap, detonator, fog signal, shell, torpedo, war rocket or any other contrivance other than a firework. The ammunition class has SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 31 of 35 three divisions namely Division1, Division 2 and Division 3. Division 1 comprises exclusively of (i) Safety cartridges
(ii) Safety fuses for blasting, (iii) Railway for signal and (iv) Percussion caps.Division 2, comprises any ammunition which does not contain its own means of ignition and is not included n Division 1, such as cartridges for small arms other than safety cartridges and charges for common shells and torpedoes containing any explosives, tubes for firing explosives and war rocket, which do not contain their own means of ignition.
Division 3 comprises any ammunition which contains its own means of ignition and is not included in Division 1 such as detonators fuses, for blasting which are not safety fuses, tubes for firing explosives, containing their own means of ignition.
Thus, the expression which has been underline hereinabove clearly goes to show that detonator is one of the classes of ammunition and it is an ammunition which contains its own means of ignition. Keeping in view the aforesaid aspect of the matter, the Hon'ble Supreme Court in a case of Lopchand Naruji Jat and another vs. State of Gujarat (supra) did hold that detonator is an explosive in terms of Section 4(d) of the Explosives Act. That was the case wherein a person on being found in possession of detonator was put on trial and on being convicted was punished under Section 9-B(i)(b) of the Act but the plea which was taken before the Supreme Court is that detonator falls within the categories of the Explosive Substances which submission was not accepted, keeping in view the definition of explosive as given under Section 4(d) of the Explosives Act and also its classification.
So far the submission which has been made on behalf of the State that detonator being used for the purpose of causing explosion would be falling within the definition of Explosive defined under Substances Act, is concerned, that is not acceptable.
Section 2(a) of the Explosive Substances Act,1908 reads as follows:
2(a) the express "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement;
On careful reading of the aforesaid provision one would find that any material used for making any explosive substance falls within the definition of explosive substances that apart, any apparatus, machine, etc. which itself is capable or aids in causing any explosion that would also come within the definition of Explosive Substances Act. In other SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 32 of 35 words, any materials, apparatus, machines, etc which itself is capable in causing explosion or with aid of any explosive substance causes explosion would fall within the definition of Explosive Substance. Here in the instant case as has been noted above, detonator is never the substance which itself causes explosion rather it's device used to trigger an explosive device and the device has been kept in the category of explosive as defined under Section 4(d) of the Explosives Act.
22.3 It was held in case titled Rejaul Karim @ Kiran Sk. Vs. The State of Jharkhand in Criminal Appeal (DB) No. 259 of 2023 dated 12.04.2023=2023 Latest Caselaw 1576 by the Hon'ble High Court of Jharkhand that detonators themselves cannot be said to be an explosive substances since the explosive substance must itself cause explosion. The detonators cannot cause explosion itself unless it is combined with other apparatus. Hence the possession of the detonator does not attract Explosive Substances Act, 1908. An explosive substances can be said to be explosive substance if it explodes of its own. The detonator cannot be considered to be explosive substance since it is used to trigger the explosive substance. The relevant para no. 3, 6 and 7 are reproduced hereasunder:
3. So far as the recovery of motorcycle is concerned, submission has been made that the said motorcycle is not owned by the appellant and so far as the recovery of Detonators to the extent of 1900 pieces is concerned, it has been submitted that the Detonators cannot be said to be an explosive substance since the explosive substance can be said to be explosive substance which itself causes explosion but here, the Detonators cannot cause explosion itself, hence, the offence which has been said to have committed by the appellant under Sections 4 and 5 of the Explosive Substance Act cannot be said to have attracted the ingredient thereof. But, the learned trial court has not appreciated the aforesaid fact while passing impugned order.
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6. This Court has also gone through the judgment of the Hon'ble Apex Court in this context having been produced by the learned counsel for the appellant, rendered in Lopchand Naruji Jat and Anr. vs. State of Gujarat, [2004 (3) East Cr C 226 (SC)] wherein the Hon'ble Apex SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 33 of 35 Court while dealing with the provision of Section 4(d) of the Explosive Substance Act came to a finding that an explosive substance can be said to be explosive substance if it explodes on its own.
7. This Court, also in Kamal Sheikh and Anr. vs. State of Jharkhand, (2013) 2 JBCJ 234 after putting reliance upon the judgment rendered by the Hon'ble Apex Court in Lopchand Naruji Jat and Anr. vs. State of Gujarat (supra), has considered that the Detonators cannot be considered to be explosive substance since it is used to trigger the explosive substance.
22.4 It was held in case titled Sharuddin Ansari @ Sharuddin Ansri Vs. The State of Jharkhand in Criminal Appeal (DB) No. 191 of 2023 dated 19.04.2023 by the Hon'ble High Court of Jharkhand that the detonator in isolation cannot be treated an explosive substance. The relevant para no. 4 and 5 are reproduced hereasunder:
4. The learned Addl. Public Prosecutor is not in a position to rebut the argument which has been advanced on behalf of the appellant, since, the legal issue about sustainability of the prosecution is the argument based upon the Judgment of the Hon'ble Apex Court rendered in the case Lopchand Naruji Jat and Anr. vs. State of Gujarat, (2004) 7 SCC 566 followed by this Court in the case of Kamal Sheikh and Anr. vs. State of Jharkhand, (2013) 2 JBCJ 234 (HC) wherein it has been held that the detonator in isolation cannot be treated to be an explosive substance. He is also fair enough to submit after going through the case diary that there is no criminal antecedent against the appellant.
5. This Court has heard the learned Counsel for the parties and after considering the submission advanced on behalf of the appellant regarding the availability of ingredient of Explosive Substance Act merely on account of the seizure of 260 pieces of detonators, this Court after taking into consideration the judgment rendered by the Hon'ble Apex Court in the case of Lopchand Naruji Jat and Anr. vs. State of Gujarat, (2004) 7 SCC 566 followed by this Court in the case of Kamal Sheikh and Anr. vs. State of Jharkhand, (2013) 2 JBCJ 234 (HC) wherein it has been dealt with by the Hon'ble Apex Court that the detonators in isolation cannot be considered to be an explosive substance. Further no criminal antecedent is against the appellant.
23. Hence the prosecution has failed to prove abetment under SC No. 27440/2016 FIR No. 130/2010 State Vs. Khem Prasad & Ors. Page 34 of 35 Section 4/5 of Explosive Substance Act, 1908 r/w Section 6 of Explosive Substance Act, 1908 caused by accused Purshottam Lal Mehta. In fact even the possession of detonators with accused Khem Prasad and Purshottam Lal Mehta is NOT proved in any manner and in absence which Section 9B of the Explosives Act, 1884 cannot be held to be proved against both the accused person in view of discussion held above. Hence accused Purshottam Lal Mehta is acquitted for the offence under Section 4/5 of Explosive Substance Act, 1908 r/w Section 6 of Explosive Substance Act, 1908. Since the possession is also not proved with any of the accused namely accused Khem Prasad and accused Purshottam and therefore it is held that Section 9B of the Explosives Act, 1884 is also held not proved against the accused Khem Prasad and accused Purshottam Lal Mehta. Hence it is held that the prosecution has failed to prove the charges levelled against the accused Khem Prasad and accused Purshottam Lal Mehta and hence both the accused Khem Prasad and accused Purshottam Lal Mehta stands acquitted of the charge levied against them. Their earlier personal bond are cancelled and surety are discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. PC, accused have furnished their bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court
JOGINDER Digitally signed by JOGINDER
on 12.12.2023 PRAKASH NAHAR
PRAKASH NAHAR
Date: 2023.12.12 16:05:20 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 27440/2016
FIR No. 130/2010
State Vs. Khem Prasad & Ors. Page 35 of 35