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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.

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.

STATE VS. RAJ KUMAR

10.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 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.