IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 494 of 2002. Date of decision: 9.4.2009 -__________________________________________________ State of H.P. …….Appellant Vs. Lal Singh & another .. Respondents. ______________________________________________________ Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. Yash Chauhan, Advocate. Kuldip Singh, Judge(Oral) The State has come in appeal against judgment dated 29.9.2002 passed by learned Chief Judicial Magistrate, Sirmaur at Nahan in Cr. Case No.17/3 of 2001/2000, acquitting the respondents for the offence punishable under Section 9B of the Explosives Act, 1884( for short Act). 2. The prosecution case, in brief, is that PW-7 HC Kalyan Singh along with police party was patrolling and was on his way to Madoli Dhar on 17.5.2000 at about 4.45 p.m., both the respondents were standing on the side of road and were carrying polythenes with them. On seeing the police, the respondents tried to escape from the spot but they were apprehended on suspicion. On search of the bag of respondent No.1 Lal Singh, it was found containing 25 gelatine and from Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 the bag of Jagar Singh 10 meters fuse wire and one small pack (Dibia) containing 10 detonators were found. The respondents could not produce any export permit for exporting or possessing the explosive substance. The investigating officer separated two gelatine, two detonators and one meter fuse wire for analysis and the same were put in one pack which was sealed with seal ‘D’. Thereafter the entire case property was taken into possession vide recovery memo Ex.PW-4/A. The specimen of seal impression Ex.PL was also taken on a separate piece of cloth. The investigating officer prepared ruka Ex. PW-1/A , which was sent for registration of the case and in this way FIR Ex.PW- 1/B came to be registered. The site plan Ex.PM was prepared, the samples were sent to Forensic Science Laboratory, Chandigarh and on analysis report Ex.PN was obtained. On completion of investigation challan was presented in the Court. The respondents were charged for offence punishable under Section 9B of the Act, who pleaded not guilty and claimed trial. The prosecution in order to prove the charge, examined 8 witnesses, the statements of respondents were recorded under Section 313 Cr.P.C. , they denied the prosecution case. The learned Chief Judicial Magistrate acquitted the respondents as noticed above, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the State and Mr. Yash Chauhan, Advocate, learned counsel for the respondents and have also gone through the record. The learned Addl. Advocate General has submitted that the learned Chief Judicial Magistrate has erred in acquitting the respondents, the prosecution has proved the case against respondents. Mr. Yash Chauhan, learned counsel for the respondents has supported the 3 impugned judgment, he has submitted that neither on facts nor in law the prosecution has proved the case against the respondents. 4. Ex.PW-1/A is the ruka, on the basis of which FIR Ex.PW- 1/B was recorded. PW-7 HC Kalyan Singh has stated that in his investigation, it has come that respondents have committed an offence punishable under Section 9B of the Act. The Section 9B of the Act is as follows:- “9B-- Punishment for certain offences— (1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules— (a) manufactures, imports or exports any explosive shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both; (b) Possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and (c) In any other case, with fine which may extend to one thousand rupees. (2) Whoever in contravention of a notification issued under section 6 manufactures, possesses or imports any explosive shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both ; and in the case of importation by water, the owner and master of the vessel or in the case of importation by air, the owner and the master of the aircraft, in which the explosive is imported shall, in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees. (3) Whoever,--- (a) Manufactures, sells, transports, imports, exports or possesses any explosive in contravention of the provisions of clause (a) of section 6A; or (b) Sells, delivers or dispatches any explosive in Contravention of the provisions of clause (b) of that section, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both; or (c ) In contravention of the provisions of section 8 fails to give notice of any accident shall be punishable, - 4 (i) with fine which may extend to five hundred rupees, or (ii) If the accident is attended by loss of human life, with imprisonment for a term which may extend to three months or with fine or with both”. 5. The section 5 of the Act is as follows:- “Power to make rules as to licensing of the manufacture, possession, use, sale, transport, import and export of explosives— (1) The Central Government may, for any part of India make rules consistent with this Act to regulate or prohibit, except under and in accordance with the conditions of a licence granted as provided by those rules, the manufacture, possession, use, sale, transport, import and export of explosives, or any specified class of explosives. (2) Rules under this section may provide for all or any of the following, among other matters, that is to say:- (a) the authority by which licences may be granted; (b) the fees to be charged for licences, and the other sums ( if any) to be paid for expenses by applicants for licenses; (c) the manner in which applications for licenses must be made, and the matters to be specified in such applications; (d) the form in which, and the conditions on and subject to which, licences must be granted; (e) the period for which licences are to remain in force; (ee) the authority to which appeals may be preferred under section 6F, the procedure to be followed by such authority and the period within which appeals shall be preferred, the fees to be paid in respect of such appeals and the circumstances under which such fees may be refunded; (eea) the total quantity of explosives that a licensee can purchase in a given period of time; (eeb) the fees to be charged by the Chief Controller of Explosives or any officer authorized by him in this behalf, for services rendered in connection with the manufacture, transport, import or export of explosives; (f) the exemption absolutely or subject to conditions of any explosives or any person or class of persons from the operation of the rules”. 6. The charge was framed under section 9B without indicating violation of any other section, rule or notification of the Act. The contravention of rules made under section 5 or of conditions of a licence 5 granted under the said rules, contravention of notification under section 6 and violation of section 6A of the Act has been made punishable under Section 9B of the Act. The prosecution in addition to possession of gelatine, detonators and fuse wire will have to show that possession of such gelatine, detonators and fuse wire is prohibited under rules framed under section 5 or by notification under section 6 or it contravened section 6A of the Act. In the present case, no attempt was made by the prosecution to prove violation of aforesaid provisions, therefore, it cannot be said that respondents have committed an offence punishable under section 9B of the Act. 7. PW-8 Dr. Sukhvinder Kaur, Sr. Scientific Officer, CFSL, Chandigarh has proved her report Ex.PN. The relevant part of report is as follows:- “Various laboratory tests such as colour tests, High Performance Thin Layer Chromatography and Fourier Transform Infra-red Spectrometry were carried out with exhibit- 1,2 & 3 under reference. The results thus obtained have been analysed as given below: 1. Nitroglycerine (NG) has been detected in exhibit-1. 2. Potassium ions & nitrate ions (Potassium Nitrate), carbon particles ( charcoal) & sulphur has been detected in exhibit-2. 3. Lead ions & azide ions ( Lead azide), & pentaerythritol tetranitrate (PETN) has been detected in exhibit-3”. The explosive has been defined in clause (d) of section 4 of the Act which is as follows:- (d) “explosive” means gunpowder, nitroglycerine, nitroglycol, gun-cotton, di-nitrotoluene, tri-nitro-toluene, picric acid, di-nitro-phenol, tri-nitro-resorcinol( styphnic acid), cyclo- trimethylene-tri-nitramine, penta-erythritol-tetranitrate, tetryl, nitroguanidine, lead azide, lead styphynate, fulminate of mercury or any other metal, diazo-di-nitro- phenol, coloured fires or any other substance whether a single chemical compound or a mixture of substances, whether solid or liquid or gaseous used or manufactured 6 with a view to produce a practical effect by explosion or pyrotechnic effect; and includes fog-signals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosive as defined in this clause”. 8. No doubt in the report some chemicals/items were found which are mentioned in sub clause (d) of section 4 of the Act but simple presence of these chemicals or items are not enough to bring these chemicals/ items within the definition of the explosive. As per the Act explosive means gunpowder etc….used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect and includes fog-signals etc…or preparation of an explosive as defined in clause (d) of Section 4. PW-8 in her statement nor in report Ex.PN has stated that the material which was examined by her was explosive as per her opinion under the Act. 9. The prosecution has examined eight witnesses but the statements of PW-4 Ram Kumar and PW-7 HC Kalyan Singh are relevant as they claimed themselves to be the eye witnesses of recovery. PW-4 has stated that Lal Singh was holding white colour polythene and the Jagar Singh was holding fuse wire in left hand and small pack ( dibia ) in right hand. On search of the bag of Lal Singh 25 gelatine were recovered. The fuse wire was found 10 meters and from the small pack which was in the hand of Jagar Singh 10 detonators were found. There was no abadi nearby nor any other witness. PW-3 Nain Singh has stated that he had engaged on contract Lal Singh and Jagar Singh for levelling his four biswas land and they were to be paid Rs.42,000/-. In cross-examination he has stated that adjacent to his plot is the plot of Sastri and the houses of Tapender Singh and Hari 7 Chand. He has also stated that adjacent to his plot is way to Madoli Sangrah which remains busy. 10. PW-4 Ram Kumar in his statement has stated that when they were going towards Madoli at about 4.45 p.m. the levelling work on the upper side of the road was going on and two persons were standing there and they were searched on suspicion. PW-3 has also stated that on 17.5.2000 at about 4.30 or 4.45 p.m. on his plot and on the plot of Daya Ram Sashtri, Kalia Ram, Chhingaru Ram were working. It is thus clear that many persons were available near the spot when the respondents were allegedly apprehended by PW-7. The statement of PW-4 that the houses of Tapender Singh and Hari Chand are not near to the place where the plot was being levelled is contradicted by PW-3 Nain singh. Similarly, PW-3 Nain Singh has contradicted the statement of PW-7 on the point when PW-7 has stated that at that time plots of Nain Singh and Daya Ram were not being levelled and Kalia and Chhingaru Ram were not on the spot. PW-7 has given no explanation why independent witnesses were not associated by him when the respondents were searched when independent witnesses were available on the spot. 11. It is not the case of the prosecution that attempt was made by PW-7 to join independent witness when respondents were searched but, no independent witness had shown his willingness to join the investigation. This creates suspicion in the prosecution case. The learned Chief Judicial Magistrate has rightly appreciated the material on record and has taken a possible view which emerges from the evidence on record. The appellant has failed to make out a case for interference. It has not been pointed out that the impugned judgment suffers from 8 perversity. The appeal is liable to be dismissed and is accordingly dismissed. Bail bonds discharged, the case property shall stand confiscated to the State. ( Kuldip Singh) Judge April 9, 2009 (sks)