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2019 Supreme(Pat) 1758
IN THE HIGH COURT OF PATNA
Aditya Kumar Trivedi, J.
MD ANSAR - Appellant
Vs.
STATE OF BIHAR - Respondent
Criminal Appeal No. 650 of 2016
Decided On : 03-07-2019
Najmul Hoda, Adv., Z. Hoda, Adv.
The central legal point established in the judgment is the interpretation of the provisions of the Explosive Substance Act and the Explosive Rules in determining the applicability of the law to the recovered items.
Headnote:
Explosive Substance Act - Conviction under Section of the Explosive Substance Act - Section 2, Section 4(d), Section 5, Rule-9, Rule-2(24), Rule-2(25) - The court found that the ingredients found by the FSL laboratory did not fall within the meaning of Section 2 of the Explosive Substance Act. The court also discussed the provisions of Section 4(d) and Section 5 of the Explosive Substance Act, as well as Rule-9, Rule-2(24), and Rule-2(25) of the Explosive Rules.
Fact of the Case:
The appellant was found guilty for an offence punishable under Section of the Explosive Substance Act and sentenced to undergo R.I. for ten years. The case involved the recovery of 600 pieces of bomb from a rickshaw, and the appellant's defense was that he was unaware of the contents of the cartoons he was carrying.
Finding of the Court:
The court found that the evidence did not satisfy any of the ingredients of Section 3 or 4 of the Explosive Substance Act, and the conviction under Section of the Explosive Substance Act was legally not maintainable. The appellant was allowed to be released forthwith after setting aside the judgment impugned.
Issues: The issues involved the interpretation of the provisions of the Explosive Substance Act and the Explosive Rules, as well as the question of whether the recovered items constituted an explosive substance under the law.
Ratio Decidendi: The court's decision was based on the finding that the recovered items did not fulfill the requirements of an explosive substance under the law, as well as the discussion of the relevant provisions of the Explosive Substance Act and the Explosive Rules.
Final Decision: The appeal was allowed, and the appellant was allowed to be released forthwith after setting aside the judgment impugned.
JUDGMENT/ORDER :
Aditya Kumar Trivedi, J.
Sole appellant, Md. Ansar has been found guilty for an offence punishable under Section of the Explosive Substance Act and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.5000/- in default thereof, to undergo S.I. for six months, additionally with a further direction of set off with regard to the period having undergone during course of trial by the Additional Sessions Judge-IIIrd, Bhagalpur vide judgment of conviction dated 28.06.2016 and order of sentence dated 01.07.2016 relating to Sessions Trial No.311/2015 arising out of Kotwali (Tatarpur) P.S. Case no.343/2014, G.R. No.1923/2014.
2. Asi, Satyendra Narayan Singh (PW.2) recorded his self-statement on 05.06.2014 disclosing therein that while he along with Navin Kumar Singh (PW.1) and Gopal Poddar (PW.3) was in day patrolling and as soon as they reached near Nagarpalika, he was informed by an informer that the rickshaw which was going ahead of them was carrying bomb whereupon, they cordoned the rickshaw, found three cartoons kept thereupon. On search 200 bomb each weighing 100 gm (totaling 600 pieces) were found and for that, in the presence of Md. Hannan as well as Indu Devi seizure list was prepared. On interrogation, the rickshaw puller disclosed that the aforesaid article were kept by one person who was following but, they have not perceive any such person. Furthermore, the rickshaw puller also tried to mislead them when they questioned to show the place from where the aforesaid cartoons were loaded.
3. On the basis thereof, Kotwali (Tatarpur) P.S. Case No.343/2014 was registered followed with an investigation during course of which the I.O. (PW.4) got the sample examined at FSL, procured sanctioned order and then thereafter, after completing investigation submitted charge sheet followed with order of cognizance as well as trial, meeting with the ultimate result, subject matter of instant trial.
4. Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, it has also been pleaded that appellant happens to be mere a rickshaw puller and so was not at all aware what was kept inside the cartoon having duly sealed while carrying the same to destination as instructed by the person who hired him and on account thereof, no criminal liability could be fasten upon him. However, neither oral nor documentary evidence has been adduced.
5. In order to prove its case, prosecution has examined altogether four PWs who are PW.1-Navin Kumar Singh, PW.2- Satyendra Narayan Singh, PW.3-Gopal Poddar and PW.4-Ajay Sharma. Side by side has also exhibited Ext.1-Seizure list, Ext.2- Written report, Ext.3-Sanction order, Ext.4-FSL Report. As stated above, nothing has been adduced in defence.
6. Now coming to the status of the witnesses, it is evident that PW.1 had not supported in a manner as projected by other witnesses while PW.2 and PW.3 substantiate the story while PW.4 is the I.O.
7. Heard learned counsel for the appellant, learned A.P.P. Also gone through the record.
8. After perusal of the record, it is evident that copy of the seizure list has not been furnished upon the appellant and so, there happens to be violation of sub-section (7) of Section 100 of the Cr.P.C. and for that, though no cross-examination has been made at the end of the appellant, the prosecution also failed to explain the same. The second aspect as is evident from Ext.4, the FSL report is that the sample on chemical examination found containing aluminum as well as potassium nitrate and in the aforesaid background, it has been observed that the aforesaid items happens to be ingredient of a cracker. In order to identify whether presence of aforesaid ingredients comes within the purview of Explosive Substance Act and for that, section 2 thereof, is quoted below:
2. Definitions-In this Act-
"(a) the expression "explosive substance" shall be deemed to include
