CRIMINAL APPEAL No.374 OF 1993 Against the judgment of conviction and order of sentence dated 7.12.1993 passed in Sessions Trial No. 401 of 1991 by Sri Nagendra Narayan Singh, 2nd Additional Sessions Judge, Jamui. ******* MD. AZIZ S/O LATE ALLAUDDIN MIAN, OF VILLAGE- CHACHIYAR, P.S.- JAMUI, DISTRICT- JAMUI …………………………………..APPELLANT Versus STATE OF BIHAR ……………………………………………RESPONDENT ************ For the Appellant :- Mr. Arun Kumar Tripathi Amicus Curie For the State :- Mr. Ali Mozaffar, APP ****************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S. K. Sharma, J. The sole appellant has preferred the instant appeal after he was convicted and sentenced under section 5 of the Explosive Substance Act by the learned 2nd Additional Sessions Judge, Jamui on 7.12.1993 in Sessions Trial No. 401 of 1991 by which he was sentenced to undergo rigorous imprisonment for five years under section 5 of the Explosive Substance Act. On 11.10.1999, in the morning at about 7 to 7.15 AM informant Jai Prakash Thathera (PW 3) was coming back from his morning stroll. He saw that two persons were coming from 2 the side of Budhman-talab out of which one was carrying a plastic bag and another having a bicycle which was carrying a plastic bag on its career. Two persons stopped near the shop of Jainul Mistry. Informant became suspicious and wanted to know about the articles which was being carried in the bag. In the mean while Nand Kishore Prasad Bhagat (PW 4), Bhagwan Prasad Sah (PW 5), Satya Narayan Prasad Bhagat (not examined) and others assembled. One of the persons who was suspected to be carrying some articles disclosed his name and he was the appellant. The night watch man Bindeshwari Singh (not examined) was asked to see about the articles which was being carried in the plastic bag. The plastic bag was having a mark of 999 Washing Powder but in the bag eight sachets of Potash and eight sachets of yellow powder with smell of Sulfur the explosive was coming. It was suspected that these articles were being carried for preparation of the bomb. The appellant disclosed before them that the articles are used in preparation of the bomb. When the matter was inquired by the persons who were present there then the appellant managed to escape to some distance but he was caught. In the mean while the Officer In Charge of Jamui Police Station came and got the custody of the appellant along with the articles which was kept in the plastic bag. Statement of the informant was recorded and formal FIR was drawn up on which Nand Kishore Prasad Bhagat (PW 4) and Bhagwan Prasad Sah (PW 5) signed as 3 witnesses. The case was registered and statement of the appellant was recorded under section 164 Cr.P.C. before the learned Judicial Magistrate. After getting the permission from the court the seized articles were sent to Forensic Science Laboratory, Bihar for examination. After receipt of the report from the Director of the Forensic Science Laboratory and taking permission for prosecution of the appellant from the District Magistrate, the Chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the court of Sessions. The defence of the appellant was that the informant (PW 3) asked the appellant to carry a bag while going towards Budhman-talab with a bag which was refused so the appellant was caught and fabricated a story and roped him. The prosecution has examined 10 witnesses in support of its case. PWs 7 and 8 have been examined twice so they are one person and in fact, only nine witnesses were examined. They were Md. Abdul Jabir (PW 1) A.S.I. who has proved formal FIR, Raj Kishore Singh (PW 2) who is a formal witness and identified the writing of the then Officer In-Charge Satyam Jha, Jai Prakash Thathera (PW 3) the informant, Nand Kishore Bhagat (PW 4) who has proved the seizure list and supported the prosecution case. Bhagwan Prasad Sahu (PW 5), Md. Manzzor (PW 6) both have not supported the prosecution case so they have been declared hostile and 4 cross-examined by the prosecution as well as by the defence. Fakir Yadav (PW 7) has proved the sanction report which was marked as ‘X’ for identification. Om Prakash Singh (PW 9) Assistant of the General Section of the Collectorate, Jamui has proved the sanction granted by the District Magistrate, Jamui and Jawahar Yadav (PW 10) who has proved a letter written by Bisambhar Jha, the then Inspector of Police, Jamui to the learned A.C.J.M., Jamui. He has proved the writing of the case diary. No witness was examined on behalf of the defence. The prosecution has also brought on the record the formal FIR Ext-1, Fard-Beyan Ext-2, signature of Jai Prakash Thathera on fard-beyan (Ext-3), signature of Bhagwan Pd. Sah on fard-beyan (Ext-3/1), signature of Nand Kishore Bhagat on fard-beyan (Ext-3/2). Production and seizure list (Ext.-4), statement u/s 164 Cr.P.C. of appellant (Ext.5). A letter written by Bisambhar Jha (Ext. 6). Signature on forwarding letter of A.C.J.M. to Director of Forensic Science Laboratory, Patna (Ext.7). Police Case diary (Ext-8) and sanction order (Ext.9). The informant PW 3 has supported the version as he has given in the FIR. He has stated in his evidence that on 11th December, 1989 he was coming from his morning walk at about 7.15 AM then near the P.D. Middle School he saw the appellant and Md. Yasin coming from Budhman-talab. At that time the appellant was carrying a plastic bag whereas Md. Yasin was having a bicycle which was containing a plastic bag 5 on its career. On the sight of PW 3 the appellant and Md. Yasin sceptical and they tried to avoid their suspicion. PW 3 then asked about the articles being carried then, the appellant who was carrying the bag kept the same in the leath shop of Jainul Mian and another person Md. Yasin escaped. Several persons assembled and they started making inquiry. The Night Watchman reached who picked up the articles of the bag at the instance of PW 3. The bag was having mark of 999 Washing Powder but the contents of the bag were several sachets containing the explosive substance. Police arrived and took possession of the appellant and the articles which he was carrying. The version of the informant is identical as given in FIR as well as in his cross-examination. The witness has supported that after preparation of seizure a copy was handed over to the appellant. Suggestion was given to the witness that he was deposing after taking money but the suggestion was so vague that it could not get any out as to who give money for deposing falsely against the appellant. Other suggestions were not given to him, therefore, it cannot be presumed that he was an interested witness and his evidence has remained intact. On the question of search and seizure PW 4 has stated that in between 7 to 8 AM he was at his house and when he heard some sound then came to the shop of Jainul Miyan and saw one bag kept at his shop. The appellant was present 6 and in presence of PW 4 the bag being carried by the appellant was opened and materials were seized. Sub-Inspector of police recorded the statement of the informant in his presence and he has put his signature over the same. They also stated that seizure list was prepared and a copy of which was given to the appellant. This witness has corroborated the entire evidence of the informant. PW 5 has stated that he has signed on the seizure list on being asked by the sub-inspector of police which was also signed by the informant and others. Though he has supported the prosecution version to some extent but later on he has stated that he does not remember as to whether one person escaped or not and has not supported the statement of the informant in entirety but he has admitted about the signature over the seizure list and he has also stated about the signatures being appended by others on the seizure list. The important factor in this case is statement under section 164 Cr.P.C. of the appellant. According to him, one day after Vijay Dashmi he saw PW 3 carrying a bag which was smelling and inquired from him. Jai Prakash replied that who is he to make the inquiry about the contents of the bag. Jai Prakash assaulted him upon which he has raised alarm where Nandu Bhagat and Gopal Master came. One constable came and the appellant was handed over with the bag. Though statement of the appellant u/s 164 Cr.P.C. was recorded in the court but when the statement of the appellant was recorded 7 under section 313 Cr.P.C. then he stated that while he was going towards Budhman-talab then Jai Prakash asked him to carry a bag when he refused then Jai Prakash caught him, assaulted him and handed over him to police. Both the statements of the appellant u/s 164 and 313 Cr.P.C. are taken into account then it proved that admittedly the appellant was going or coming from the Budhman-talab and at that time he was carrying a bag and also that he was assaulted and handed over to police with the bag. Defence has taken plea of false implication by Jai Prakash but this has not been supported by any one. If the defence has taken plea that the implication is on account of enmity but nothing has been brought on the record from which any inference can be drawn that implication was on account of some enmity with the appellant and PW 3. Statement under section 164 Cr.P.C. of the appellant implicates him. The seized articles were sent to the Director of Forensic Science Laboratory and the report was received. From the report it appears that the chemical examination accepted that seized articles are Arsenic Sulphide and Potassium Chloride and the report also mentions that if these two are mixed together then it can be used as explosive. The seized articles after examination have indicated that these were articles which can be used for preparation of the Bomb. The defence has taken a plea that the sanction for prosecution 8 has to be given by the Central Government and State authority has no role in grant of sanction. The court has discussed this fact in details and has analyzed the provisions and come to the finding that the sanction approved by the District Magistrate was in furtherance of the delegated power conferred by the Central Government. So the sanction is valid one. Another lacuna pointed out by the appellant was non-examination of the I. O. but nothing has been pointed out as to how non- examination of the I. O. has affected the defence version. If the I. O. is not examined and some prejudice is caused then accused becomes entitled to get the benefit of that latitude but for grant of latitude it must be proved that the accused had suffered due to non-examination of the I. O. This fact gives accumulative effect that the evidence brought on the record is that the prosecution has been able to prove that on the date and time of occurrence the appellant was carrying a bag which was containing explosive substance. So I hold that the conviction under section 5 of the Explosive Substance Act is correct. So far as the question of sentence is concerned, it appears that in course of trial as well as during appeal the appellant has remained in custody considerably for a longer time. The judgment was passed about 16 years earlier and at that time the appellant has crossed 45 years of age and now he is aged about 60 years. The appeal has remained pending 9 for such a longer time and the appellant has sufficiently been punished. So far as the benefit of sections 4 and 5 of the Provision of Offenders Act or provision of section 360 Cr.P.C. are concerned, I am of the view that in view of the circumstances available on the record it was not proper for the court below to extend the benefits of those provisions so the court below has rightly passed the order of substantive sentence. However, I am of the view that the sentence needs to be modified. Accordingly, the sentence awarded to the appellant is modified to the extent that the period undergone by him during the trial and appeal shall be deemed to be sufficient for the ends of justice. In the result this appeal is dismissed with the modification in the sentence. (Shyam Kishore Sharma, J.) Patna High Court, Patna 27th August, 2009 N.A.F.R./avin