THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.262 of 2010 DATE: 02ND FEBRURAY 2010 Between: The State of A.P. rep by The Public Prosecutor, High Court of A.P. And another. …Appellant / Petitioner AND Gunja Ramulamma And others …Respondent / Accused THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.262 of 2010 JUDGMENT: 1. This Criminal Appeal, under Section 377 (2) of the Code of Criminal Procedure, 1973, (‘Cr.P.C.’, for brevity) is filed by the State against the judgment, dated 19.09.2007, made in Sessions Case No.55 of 2006 on the file of the Assistant Sessions Judge, Miryalaguda, whereunder and whereby, the respondent/accused was found guilty of the offence punishable under Section 5 of Explosive Substances Act, 1908 (‘the Act’, for brevity) and was convicted under Section 235(1) Cr.P.C. and was sentenced to undergo imprisonment till rising of the Court and to pay fine of Rs.5,000/- in default, to undergo Simple Imprisonment for three months, for enhancement of sentence. 2. The brief facts that are necessary for the disposal of the prosecution case may be stated as follows. On 12.11.2001, police surprised the house of the accused and seized 80 Special Ordinary Detonators, 5 Kgs of Gelatin Sticks and 2 bundles of wire from her house, in presence of Panch witnesses, under Ex.P.1 and arrested the accused. The explosives were defused by an expert with the permission of the Court and the samples were analysed by the Deputy Controller of Explosives, Hyderabad, who, after analysis, gave report. After obtaining sanction orders from the District Collector, police filed charge sheet against the accused for the offence punishable under Section 5 of the Act. 3. When the charges under Section 5 of the Act were framed, read over and explained to the accused in Telugu, she denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 5 and got marked Ex.P.1 and Ex.P.2. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against her in the evidence of prosecution witnesses. She denied the same. 6. The trial Court, after considering the evidence on record, found the accused guilty of the offence punishable under Section 5 of the Act and accordingly convicted and sentenced her as above. The present Criminal appeal is preferred by the State to enhance the sentence imposed by the trial Court. 7. Now the point for determination is whether this is a fit case to enhance the sentence imposed by the trial Court or not? 8. The learned counsel representing the learned Public Prosecutor contended that the learned Magistrate ought to have seen that the ingredients to constitute offence punishable under Section 5 of the Act is made out by the prosecution against the accused; learned Magistrate having believed the evidence of prosecution witness, which is cogent and reliable, ought not to have taken a very lenient view by imposing meager punishment to the accused and hence, she prays to enhance the sentence of punishment imposed by the lower Court. 9. There cannot be any dispute that the sentence should be in proportion with the severity of the crime committed by the accused. The accused was convicted under Section 5 of the Act and was sentenced to undergo imprisonment till the rising of the Court and to pay fine of Rs.5,000/-. The accused has not preferred any appeal. On the ground that the accused was aged about 25 years and having children aged about 3½ and 1½ years at the time of committing the offence, the trial Court took a lenient view in awarding lesser punishment to the accused. 10. There cannot be any dispute that for the offence punishable under Section 5 of the Act, it must be proved that the accused was found in possession of the explosives. Though a sample was sent to the Deputy Controller of Explosives, Hyderabad, who analysed the same and gave his opinion, the prosecution failed to place the opinion of the Deputy Controller of Explosives, Hyderabad, on record to establish that the sample taken from the contraband, which was allegedly seized from the possession of the accused, would fall within the definition and meaning of ‘explosive substances’ under the Act. But, the findings of the trial Court have not been challenged by the appellant. The accused was found in possession of 80 Special Ordinary Detonators, 5 Kgs of Gelatin Sticks and 2 bundles of wire. It is the case of prosecution that she was not having any license to store the same. At the same time, it is not the case of prosecution that she was indulged in clandestine business of selling the same to the persons in need or to the anti-social elements or to the extremists. Except storing the explosive material, there is absolutely no evidence to show that for what purpose the accused was storing the explosive material. It is also not the case of the prosecution that she was involved in similar cases prior to the date of offence in question. Therefore, considering all these aspects, the trial Court has taken a lenient view with regard to awarding of punishment. Therefore, there are no substantial or compelling grounds to interfere with the judgment of the trial Court, as it does not suffer from any infirmity. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 11. Accordingly, the Criminal Appeal is dismissed at the stage of admission, confirming judgment, dated 19.09.2007, made in Sessions Case No.55 of 2006 on the file of the Assistant Sessions Judge, Miryalaguda. ___________________ JUSTICE K.C.BHANU February 02, 2010 Bvv