Delhi District Court
M/Sgudiya Fireworks vs The State on 5 October, 2007
IN THE COURT OF SH. ARUN KUMAR ARYA :
ADDL. SESSIONS JUDGE : DELHI
Criminal Revision 44/07
M/sGudiya FireWorks Versus The State
FIR No. : 980/06
PS : Uttam Nagar
Crime Branch, Prashant
Vihar, Delhi
U/s : 9-B Explosive Act
(Court concerned: Sh. G.P. Singh, Ld. ACMM
Rohini : Delhi).
ORDER
The present revision is filed u/s 397/399 Cr.P.C. against the order dated 04.05.2007 passed by the Ld. Additional Chief Metropolitan Magistrate in which the application for release of fireworks / crackers of the applicant was dismissed.
2. As per prosecution case the case property i.e. Explosives weighing about 2030 kgs were recovered from one Jitender @ Shallu. It was stated that he had four different bills for the quantity of 750 kgs. only whereas the remaining quantity of fireworks / explosives about 1280 kgs was illegally transported by him. He was booked under Section 9 B of Explosives Act vide FIR No. 980/06, Police Station Uttam Nagar.
3. It is stated in the revision petition that the Learned Trial Court has failed to appreciate that no licence was required for transporting of fireworks as per Rule 32(1)(v) of the Explosive Rules, 1983. Learned Trial Court has wrongly questioned the locus / ownership of the applicant. The impugned order was not based on facts but was passed on conjunctures and surmises. The material is a perishable nature and non-release of the same shall convert the same into waste and the applicant shall suffer heavy losses.
4. I have gone through the order passed by the learned Additional Chief Metropolitan Magistrate and the reply filed by the IO before the Ld. ACMM. As per that Jitender @ Shallu accounted for 750 kgs of fireworks in pursuance of the four bills produced by him. Even the quantity alleged to have sold to Jitender @ Shallu was exceeding 25 kgs.
5. I have gone through the impugned order and arguments of both parties. As per Section 451/452 Cr.P.C. the case property can be released to the rightful owner subject to proof and security. But in this case nowhere in the application it is mentioned that petitioner Gudiya Fireworks is the rightful owner of the material seized by the police and they have failed to account for the same. No affidavit is filed in this regard. All the four bills account for 750 kgs fireworks only. The Judgment Sunderbhai Ambalal Desai v. State of Gujrat reported as 2002 XAD (S.C.) 621 cited by the petitioner is not applicable in the present case because in that case, it is held that case property has to be released to the rightful owner or the complainant after the security is given. Moreover, if the accused is convicted in this case then the case property has to be confiscated as per the Act.
6. I find no infirmity and illegality in the order passed by the learned Trial Court but at the same time the case property is of perishable in nature I grant liberty to the petitioner to move a fresh application with the concerned Court for release of 750 kgs of explosives / fireworks for which he can account for after taking No- objection from the prospective buyers. Ld. A.C.M.M. is to dispose of the application of the petitioner, if moved, on the basis of the Judgement in the case of Sunderbhai Ambalal Desai v. State of Gujrat (supra ). With these observations, this revision petition stands disposed of.
7. A copy of this order be sent to trial court.
8. Revision file be consigned to record room.
ANNOUNCED IN THE OPEN ( ARUN KUMAR ARYA )
COURT ON 5th October, 2007 Addl. Sessions Judge
Rohini :Delhi