* THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL + CRIMINAL APPEAL No.652 of 2010 %04-07-2011 # Mohd. Ishaq, S/o.Mohd. Yousuf Ali, Age:29 years, Occ:Business R/o.Flat No.101, Gouri Apartments, Shalivahan Nagar, Malakpet, Hyderabad. ….Appellant Vs. $ Inspector of Police, P.S., Osmania University and another …. Respondents !Counsel for the Appellants: Sri G.Rama Sarma Counsel for the Respondents No.1 &2 : Public Prosecutor <Gist : >Head Note: ? Cases referred: THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.652 of 2010 BETWEEEN: Mohd. Ishaq … Appellant AND 1. Inspector of Police, P.S.Osmania University & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.652 of 2010 JUDGMENT: The appellant/A5 was charged with offence punishable under Section 9-B of the Explosives Act in S.C.No.273 of 2009 before the II Additional Metropolitan Sessions Judge, Hyderabad. The lower Court while acquitting the appellant/A5 of the said charge, ordered confiscation of MO.1 Van along with explosive substances covered by Ex.P5, to the State. Though A5 filed this appeal against the said order of confiscation of the Van as well as explosive substances, the appellant’s counsel fairly submitted that he is confining his argument in this appeal only in respect of confiscation of MO.1 Van. 2. A5 is owner of MO.1 Van and licenced dealer of explosives under the Explosives Act, 1884. It is alleged that A5 illegally supplied the explosive material to A1, A3 and A4 who are unauthorized persons and that A2 is associate of A1. With the said allegations, charges were framed by the lower Court against A1 to A4 for offence punishable under Section 5 of the Explosive Substances Act and against A5 for offence punishable under Section 9-B of the Explosives Act. After full-fledged trial, the lower Court passed the impugned judgment dated 01.02.2010 recording acquittal of A1 to A5 of all the charges. While passing the said order of acquittal, the lower Court added rider of confiscation of MO.1 also to the State. 3. In my opinion, detailed scrutiny of reasons given by the lower Court for recording acquittal against A1 to A5 may not be relevant in this appeal, where scope before this Court is limited to confiscation of MO.1 Van bearing No.AP29 T 8435. It is sufficient to note that order of confiscation of MO.1 Van by the lower Court is contrary to language employed in Section 10 of the Explosives Act, 1884. Section 10 of the said Act reads as follows: “10. Forfeiture of Explosives: When a person is convicted of an offence punishable under this Act, or the rules made under this Act, the Court before which he is convicted may direct that the explosive, or ingredient of the explosive, or the substance (if any) in respect of which the offence has been committed, or any part of that explosive, ingredient or substance shall with the receptacles containing the same, be forfeited.” 4. The lower Court in the impugned judgment did not state under what provision of law confiscation of MO.1 was ordered. The only provision under which confiscation/forfeiture can be ordered out of the provisions of both the enactments is Section 10 of the Explosives Act. The Court is entitled to invoke Section 10 of the said Act, only in case a person is convicted of an offence punishable under that Act. In the absence of recording conviction of any person under the said Act, the lower Court should not have invoked Section 10 for ordering forfeiture of MO.1 motor vehicle. Conviction under the said is a pre-condition for resorting to Section 10 thereof. The only accused out of A1 to A5 who was charged with an offence under the Explosives Act, 1884 was A5 in this case and after trial, A5 was acquitted of the said offence by the lower Court. Therefore, forfeiture of MO.1 Van in this case by the lower Court is contrary to law and without jurisdiction. 5. In the result, the Criminal Appeal is partly allowed setting aside that portion of judgment of the lower Court relating to confiscation of MO.1 Van and directing the complainant/Inspector of Police, Osmania University Police Station, to return MO.1 Van to A5. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 04.07.2011 Note: L.R.copy to be marked B/o.ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.652 of 2010 DATED: 04.07.2011 ysk