Criminal Procedure vs Unknown
2022 Latest Caselaw 9733 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

                 CRIMINAL APPEAL No.522 OF 2009

JUDGMENT:

This Criminal Appeal, under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is filed by the

appellants, who were accused in Sessions Case No.332 of 2008, on

the file of the Court of Sessions, Prakasam Division, Ongole (for

short, 'the Sessions Judge') challenging the judgment therein,

dated 07.04.2009, whereunder the learned Sessions Judge found

the accused guilty of the offence under Section 5 of the Explosive

Substances Act, 1908 (for short, 'the ES Act'), convicted them

under Section 235(2) Cr.P.C and, after questioning them about the

quantum of sentence, sentenced them to suffer Rigorous

Imprisonment for two years each and to pay a fine of Rs.100/-

each in default to suffer Simple Imprisonment for one month each.

Further, the learned Sessions Judge acquitted them for the offence

under Section 8 of the Andhra Pradesh Public Security Act, 1992

(for short, 'the APPS Act').

2. The parties to this Criminal Appeal will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

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3. The Sessions Case No.332 of 2008 on the file of the Court of

Sessions, Prakasam Division, Ongole arose out of the committal

order, dated 25.08.2008, by the Additional Judicial Magistrate of

First Class, Giddalur (for short, 'the learned Magistrate') in PRC

No.50 of 2008 under Section 209 Cr.P.C on the ground that there

is a prima-facie case against the accused for the offences under

Section 5 of the ES Act and Section 8(1) of the APPS Act.

4. The case of the prosecution, in brief, according to the charge

sheet averments, is as follows:

On 24.03.2006 evening at 05:30 PM, LW.3 - S. Veera Reddy,

ASI-121 along with LWs.1 and 2, PC 1307 - V.Y. Naik and PC 369

- R. Srihari of Giddaluru Police Station, were conducting combing

operation in the forest area of Burujupalli village and when they

reached near Papineedu temple area, they found the accused in

possession of 20 gelatin sticks, which were kept in a plastic bag.

On noticing the Police party, they tried to run away. Then, ASI

caught hold of them. On inquiry, the accused revealed about of the

offence and then the Police party searched their plastic bag and

found 20 gelatin sticks. They seized the same and arrested the

accused at 06:30 PM under the cover of Police proceedings at the

spot. They brought the accused to the Police station along with

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property and sent them for remand. The learned Magistrate

granted permission to defuse 20 gelatin sticks by an expert. On

12.07.2006, the expert ARHC 1008 R.N. Reddy, Bomb Disposal

Team, Ongole defused 20 gelatin sticks and preserved small

quantity of the substance for sending to FSL, Hyderabad. On

25.07.2006, the preserved substance liquid was sent to FSL,

Hyderabad, who analyzed the same and opined that it contains

Ammonium Nitrate and Nitroglycerine, main ingredients of gelatin

which contains highly explosive substance and it is dangerous to

human life. LW.4, the Sub-Inspector of Police, Giddalur obtained

opinion from the Assistant Public Prosecutor and further

requested the District Magistrate to issue sanction order. The

Collector and District Magistrate, Prakasam District, Ongole

issued sanction order on 11.11.2006, Ex.P-5, to prosecute the

accused under the above provisions of law. Hence, the charge

sheet.

5. The learned Magistrate, Giddalur took cognizance of the

case under Section 5 of the ES Act and Section 8(1) of the APPS

Act and, after completing the formalities under Section 207

Cr.P.C, committed the case to the Court of Session by virtue of the

aforesaid committal order.

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6. Before the learned Principal Sessions Judge, Ongole on

appearance of the accused and after following the procedure under

Section 228 Cr.P.C, charges under Section 5 of the ES Act and

Section 8(1) of the APPS Act were framed, for which the accused

denied the offences, pleaded not guilty and claimed to be tried.

7. The prosecution, during the course of trial, got examined

PWs.1 to 3 and marked Exs.P-1 to P-5, Exs.C1, C1(1) and MO.1.

8. The accused were subjected to 313 Cr.P.C examination after

closure of the prosecution evidence, for which they denied the

incriminating circumstances appearing against them, and reported

no defence evidence.

9. The learned Sessions Judge, on hearing both sides and after

considering the oral and documentary evidence on record, found

the accused guilty of the charge under Section 5 of the ES Act,

and after convicting them under Section 235(2) Cr.P.C, questioned

and heard them about the quantum of sentence, and sentenced

them as stated above.

10. Being aggrieved of the same, the unsuccessful accused in

S.C. No.332 of 2008 filed the present Criminal Appeal challenging

their conviction and sentence under Section 5 of the ES Act.

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11. Now, in deciding this Criminal Appeal, the point that arises

for consideration is, as to whether the prosecution proved before

the Court below, beyond reasonable doubt, that the accused were

found in possession of 20 gelatin sticks, which contains explosive

substance, on 24.03.2006 at 05:30 PM in the manner as alleged

and whether it proved the charge against the accused for the

offence under Section 5 of the ES Act beyond reasonable doubt?

12. Sri Challa Srinivasa Reddy, learned counsel for the

appellants, would contend that the case of the prosecution was

based upon the evidence of PWs.1 to 3, interested witnesses, and

no mediators were joined to witness the episode and, for obvious

reasons, Police prepared only police proceedings to suit their case.

Learned Sessions Judge erred in relying upon the evidence of

PWs.1 to 5, who are the Police officials. Though there was no

sufficient material before the Court below, conviction was

recorded. The evidence of PWs.1 to 5 is not at all believable and it

is unsafe to convict the accused. The Police did not follow proper

procedure to secure independent witnesses. Even, no person was

requested to accompany the Police before going to the so called

forest area, where the appellants were alleged to be found in

possession of gelatin sticks. Apart from this, the prosecution failed

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to produce the case property before the Court below. Hence, the

Criminal Appeal is liable to be allowed.

13. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, appearing for the appellant-State,

would contend that PWs.1 and 2 were the members of the combing

party and the place of seizure was far away from the human

dwelling and it was in the midst of forest area. So, the Police party

was not expected to join any independent witness. When the Police

party was conducting combing operations, they were not supposed

to take along with them the mediators. The evidence of PWs.1 and

2 is totally convincing. Evidence of PW.3 is to the effect that the

bomb expert defused the gelatin sticks. There is opinion of

chemical analyst to show the sample that was taken out from the

gelatin sticks contains highly explosive substance. The Court

below rightly convicted the accused as such the Criminal Appeal is

liable to be dismissed.

14. Before going to deal with the case on hand, this Court would

like to make it clear that before the Court below only PWs.1 to 3

were examined. So, the contention in the grounds of Appeal and

before this Court as if the prosecution relied upon the interested

testimony of PWs.1 to 5 deserves no merit. So, only there is

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evidence of PWs.1 to 3 before the Court below along with the oral

and documentary evidence but not the evidence of PWs.1 to 5 as

canvassed.

15. Now, I would like to look into the evidence of the prosecution

witnesses to test their veracity and appreciate the contention of

the appellants.

16. Coming to the evidence of PW.1, he was the then Police

Constable, who claimed to have participated in the combing

operation. On 24.03.2006 at 02:30 PM, they started along with

APSP party for combing operations and proceeded to Burujupalli

forest. When they reached near Papineedu temple in the forest at

05:30 PM, they found A-1 and A-2 who sat near the footpath

passage in the forest and opposite to them there was a plastic

cover. On seeing the Police, they tried to abscond by picking out

the plastic cover. Then, they apprehended them. Then, ASI taken

them to custody and, on inquiry, they disclosed about the

contents of the plastic cover. Then, they searched the plastic cover

and found the gelatin sticks of 20 in number. Hence, the ASI

arrested the accused and seized the gelatin sticks under the cover

of Ex.P-1 police proceedings. Ex.P-1 was scribed by him. LW.2

Srihari and LW.3 - ASI Veerareddi signed it. They arrested the

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accused and seized the gelatin sticks and plastic cover. They

brought the accused to Giddalur Police Station and after that ASI

registered Ex.P-1 as FIR.

17. Coming to the evidence of PW.2, who is the then Assistant

Sub-Inspector of Police, Giddalur Police Station, his evidence is

same as that of the evidence of PW.1. His evidence reveals that on

24.03.2006 he along with PW.1, and LW.2 - Srihari with special

police party at 02:30 PM started for combing operations towards

Burujupalli forest area by foot. They reached near Papineedu

temple at 05:30 PM and found A-1 and A-2, who sat on the road

margin of the passage, possessing a plastic cover nearer to them.

On seeing them, the accused tried to abscond with the plastic

cover. Then, they apprehended the accused and on questioning

the accused disclosed their identity and that they were carrying

the gelatin sticks. Then the Police verified the plastic cover and

found 20 gelatin sticks. Hence, he arrested the accused after

informing them the grounds of arrest and seized the gelatin sticks

under Ex.P-1 as no person was available in the forest. They

brought them to the Police Station and their SI registered Ex.P-2 -

FIR. He assisted the Sub-Inspector of Police in the investigation.

He addressed a letter to the learned Magistrate, Giddalur seeking

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permission to defuse the gelatin sticks. This is the substance of

the evidence of PW.2. As seen from Ex.P-1 - police proceedings

that were drafted on 24.03.2006 at 05:30 PM at Burujupalli forest

nearby Papineedu temple. The evidence of PWs.1 and 2 has

support from Ex.P-1. Admittedly, it reveals that none were

available as mediators as it is a forest. The same fact is spoken to

by PWs.1 and 2.

18. Now, it is pertinent to look into the cross-examination part

of PWs.1 and 2 to test their veracity. Turning to the cross-

examination part of PW.1, he deposed that he does not know

whether there were special teams for combing operations in that

are and their ASI asked him to search for any person as mediator

but he could not notice any person and any residences in that

area. Just before the accused, plastic cover was lying when they

saw them. At the instructions of their ASI, for combing operation

they proceeded along with Special Police five in number besides

them three in number. He denied that nothing was happened as

deposed by him and that he was deposing false.

19. During the course of cross-examination, PW.2 deposed that

they all chased the absconding accused and apprehended them. In

Ex.P-1, the names of the Special Police Party constables were not

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mentioned and they did not attest the same. Witness volunteers

they are the combing party having no fixed place of stay or fixed

area of jurisdiction for availability. The weight of the 20 gelatin

sticks might be 1 KG approximately. He did not try to call for any

person through their constables. They did not take with them any

person while proceeding to the forest area. The gelatin sticks were

kept in the Police Station till they were defused. He does not know

whether ASI has no power to investigate the case. He denied that

nothing was happened as deposed by them and that he was

deposing false.

20. As seen from the cross-examination part of PWs.1 and 2, the

place of seizure was located in a forest area and it is far away from

the village i.e., 15 KMs from Giddalur. Nothing is elicited from

their cross-examination to show any probabilities as to whether

any residential locality was there in and around the place of

seizure. The answers spoken by PWs.1 and 2 that though they

tried for mediators but none were available there is consistent with

each other.

21. It is a case where, according to the evidence of PWs.1 and 2,

some persons were meant exclusively for combing operations. The

trend of cross-examination of PWs.1 and 2 is such that accused

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got questioned them as to why the Police party did not obtain

signatures of those combing members. It is to be noticed that it is

preposterous to expect the regular Police party i.e., PWs.1 and 2 to

seek the signatures of the combing party members and cite them

as witnesses. The answers spoken by PW.2 that they will have no

fixed area and used to comb the forest frequently as such there is

no possibility for getting their signatures is convincing.

22. The contention of the accused before the Court below, as

evident from the cross-examination of PW.2, is that Police party

did not beforehand secure any person before they were entering

into the forest. It is totally improbable to expect a police party to

secure mediators for combing operation and take them into the

forest for citing them as witnesses. So, the Police party is not

expected to call the mediators beforehand so as to take them to

the forest. Such a trend during the course of cross-examination of

PW.2 is nothing but baseless, as rightly pointed out by the learned

Sessions Judge. So, to conclude that to this extent, accused has

no probable say as to why they were moving in the forest by

carrying gelatin sticks. Evidence of PWs.1 and 2 stood to the test

of scrutiny and it is absolutely convincing. Turning to the evidence

of PW.2, being the Assistant Sub-Inspector, he deposed that he

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does not know when the gelatin sticks were defused. To prove the

same, there is evidence of PW.3, the Inspector, who has spoken to

the fact that having received the CD file from PW.2, he verified the

investigation and duly obtained permission from the learned

Magistrate, Giddalur to defuse 20 gelatin sticks and on

12.07.2006, the ARHC, R.N. Reddi, BD team, came from Ongole

and after lifting small quantity of sample, they defused the gelatin

sticks. Sample is MO.1, which was forwarded to the FSL and

Ex.P-4(1) to (3) are the letter of advice, letter of request and

Chemical Analyst report which reveals that the sample contains

highly explosive substance. During the cross-examination, he got

marked Ex.C-1(1), which is the permission granted by the learned

Magistrate. Defence elicited that no mahazarnama was drafted at

the time of defusing gelatin sticks. This Court would like to make

it clear that gelatin sticks contain highly explosive substance. So,

the Police party is not supposed to bring mediators to the place of

defusal as there is likelihood of explosion at the time of defusion

and, in such an event, undoubtedly, there will be threat to the

lives and limbs of the persons. Hence, to defuse explosive

substance, Police are not expected to bring mediators.

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23. Absolutely, the evidence of PWs.1 to 3 is convincing. The

moment the prosecution discharged its initial burden of proving

possession of the explosive substance by A-1 and A-2, now it is for

them to show that they possessed the same for lawful object.

Except denial simplicitor that they are implicated for statistical

purpose or otherwise, they have no probable evidence at all.

Having regard to the above, this Court is of the considered view

that the learned Sessions Judge rightly appreciated the evidence

on record and rightly convicted and sentenced the accused. The

offence under Section 5 of the ES Act is punishable for a term

which may extend to ten years and with fine. The learned Sessions

Judge awarded Rigorous Imprisonment for two years which cannot

be said to be harsh. In the light of the above, this Court is of the

considered view that, absolutely, there are no merits in the Appeal,

as such the Criminal Appeal is liable to be dismissed.

24. In the result, the Criminal Appeal is dismissed. MO.1 is

ordered to be destroyed after appeal time is over.

25. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the judgment of this Court along

with the lower Court record, if any, to the Court below on or before

22.12.2022 and on such certification, the trial Court shall take

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necessary steps to carry out the sentence imposed against the

accused in S.C. No.332 of 2008, dated 07.04.2009, and report

compliance to this Court. A copy of this judgment be placed before

the Registrar (Judicial), forthwith, for giving necessary instructions

to the concerned Officers in the Registry.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 19.12.2022 DSH