Andhra Pradesh High Court - Amravati
Kola Mani vs The State Of A.P. on 28 December, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
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CRIMINAL APPEAL No.452 OF 2009
Between:
Kola Mani, W/o.Bhaskar,
Aged about 35 years, Occ:Agriculture,
R/o.Diguvametta Village,
Giddalur Mandal,
Prakasam District. .... Appellant/Accused
Versus
The State of A.P.,
Rep. by its Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondent/Respondent.
DATE OF JUDGMENT PRONOUNCED : 28.12.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wishes to see
The fair copy of the judgment? Yes/No
,,
______________________________
A.V.RAVINDRA BABU, J
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Crl.A. No.452/2009
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.452 OF 2009
% 28.12.2023
# Between:
Kola Mani, W/o.Bhaskar,
Aged about 35 years, Occ:Agriculture,
R/o.Diguvametta Village,
Giddalur Mandal,
Prakasam District. .... Appellant/Accused
Versus
The State of A.P.,
Rep. by its Public Prosecutor,
High Court of A.P.,
Amaravathi. .... Respondent/Respondent.
! Counsel for the Appellant : Sri D. Ramaswamy Reddy, Rep.
Sri Devakumar Salikiti
^ Counsel for the Respondent : Sri N. Sravan Kumar,
Learned Special Asst.
Rep. Learned Public
Prosecutor.
> Head Note:
? Cases referred:
1) (2004) 7 SCC 178
This Court made the following:
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Crl.A. No.452/2009
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.452 OF 2009
JUDGMENT:
Challenge in this Criminal Appeal is to the judgment, dated
07.04.2009, in Sessions Case No.331 of 2008 on the file of the
Court of Sessions Judge, Prakasam Division, Ongole (for short,
'the learned Sessions Judge') where under the learned Sessions
Judge found the Accused/Appellant guilty of the charge under
Section 5 of the Explosive Substances Act, 1908 (for short, 'the
SCs and STs Act'), convicted her under Section 235(2) Cr.P.C and
after questioning her about the quantum of sentence, sentenced
her to suffer Rigorous Imprisonment for a period of one year and
to pay a fine of Rs.100/- in default to suffer Simple Imprisonment
for a period of one month. However, the learned Sessions Judge,
acquitted the accused of the charge 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.331 of 2008 arose out of the
committal order in PRC No.49 of 2008 on the file of the Court of
Additional Judicial Magistrate of First Class, Giddalur pertaining
to Crime No.84 of 2003 of Giddalur Police Station registered for
the offences under Section 5 of the Explosive Substances Act and
Section 8(1) of the APPS Act.
4. The case of the prosecution, in brief, according to the charge
sheet filed by the Sub-Inspector of Police, Giddalur Police Station
is that on 07.07.2003 at 11:00 p.m. the SI of Police, Giddalur
along with his staff near Diguvametta side during night rounds
found the accused proceeding by walk. On suspicion, they stopped
her and found one polythene bag. On search of it, on further
suspicion, they found 6 gelatin sticks. As there were no mediators,
the Police seized the gelatin sticks and arrested the accused under
the cover of Police proceedings. Basing on the Police proceedings,
a case in Crime No.84 of 2003 on the file of Giddalur Police Station
was registered and investigated into. Accused was forwarded to the
Court for remand. The Judicial First Class Magistrate, Giddalur
granted permission to defuse the 6 gelatin sticks by the Expert.
On 01.08.2003, the Expert, RSI, DAR, Guntur defused 6 gelatin
sticks and preserved a small quantity of the substances for
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sending to FSL, Hyderabad. On 09.12.2005, the preserved
substance liquid was sent to FSL, Hyderabad for chemical analysis
and report. On 13.02.2006, the FSL, Hyderabad gave a report that
that the substance is of highly explosive. After obtaining due
sanction of prosecution of the accused from the Collector and
District Magistrate, Prakasam District, charge sheet is filed.
5. The learned jurisdictional Magistrate took cognizance of the
case for the offence under Section 5 of the Explosive Substances
Act and Section 8(1) of the APPSC Act and numbered it as PRC
No.49 of 2008 and, after completing the formalities under Section
207 Cr.P.C, committed the case to the Sessions Court and
thereupon it was numbered as Sessions Case No.331 of 2008.
6. On appearance of the accused before the learned Sessions
Judge, charges under Section 5 of the Explosive Substances Act
and Section 8(1) of the APPS Act were framed against the accused,
read over and explained to her in Telugu for which she pleaded not
guilty and claimed to be tried.
7. To bring home the guilt of the accused, the prosecution,
during the course of trial, examined PWs.1 to PW.5 and marked
Exs.P-1 to P-5 and MO.1. In Ex.P-3 series, Ex.P-3(1), Ex.P-3(2)
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and Ex.P-3(3) were marked. Further, Ex.C-1, Ex.C-1(1) and Ex.C-
1(2) were marked by the Court. No documents were marked on
behalf of the defence.
8. After closure of the evidence of the prosecution, accused was
examined under Section 313 Cr.P.C with reference to the
incriminating circumstances appearing in the evidence let in by
the prosecution for which she denied the incriminating
circumstances and stated that she has no defence evidence. She
put forth a version during her 313 Cr.P.C examination that she
used to cook food in the school as a livelihood. She was taken to
Police Station and confined for 20 days with an enquiry to reveal
the information about the naxalites and after that the Police
implicated her in the present false case.
9. The learned Sessions Judge, on hearing both sides and after
considering the oral and documentary evidence on record, found
the accused not guilty of the Charge under Section 8 of the APPS
Act and acquitted her under Section 235(1) Cr.P.C but found her
guilty of the charge under Section 5 of the Explosive Substances
Act, convicted her under Section 235(2) Cr.P.C and, after
questioning her about the quantum of sentence, sentenced her, as
above.
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10. Felt aggrieved of the same, the unsuccessful accused in the
aforesaid Sessions Case, filed the present Criminal Appeal.
11. Now, in deciding this Criminal Appeal, the points that arise
for consideration are as follows:
1) Whether the prosecution before the Sessions Court
proved beyond reasonable doubt that the accused was
found in possession of explosive substances i.e., 6
gelatin sticks on 07.07.2003 at 11:00 p.m. in the
manner as alleged?
2) Whether the judgment in Sessions Case No.331 of
2008, dated 07.04.2009, is sustainable under law and
facts?
POINT Nos.1 & 2:
12. Sri D. Ramaswamy Reddy, learned counsel, representing Sri
Devakumar Salikiti, learned counsel for the appellant, would
contend that as evident from the cross-examination part of the
witnesses, at a distance of 100 meters there were houses.
Evidence did not disclose that the Police party made any efforts to
secure the independent witnesses. The evidence of the Police party
is not free from blemish and their evidence suffers with serious
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infirmities. Prosecution miserably failed to establish the identity of
the so called liquid substance took over from the alleged 6 gelatin
sticks. There was delay of 2 years 4 months in sending the sample
to the chemical analysis. Chain of the custody of the sample was
not proved. Their own record reveals that some other sample was
sent to the chemical analysis. With the above submissions, he
would contend that the Appellant is entitled for acquittal.
13. Sri Naidana Sravan Kumar, learned Special Assistant,
representing learned Public Prosecutor, would contend that
because there were no mediators and as the seizure was in odd
hours, there was no other go for the Police party except to resort to
seizure and arrest under the cover of Police proceedings. Their
evidence reveals that there was no possibility to get the mediators.
Prosecution obtained due sanction to prosecute the accused. The
sample that was examined by the Forensic Science Laboratory was
of a highly explosive substance. The learned Sessions Judge
rightly appreciated the evidence on record as such the Appeal is
liable to be dismissed. He would rely upon a decision of the
Hon'ble Apex Court in Union of India v. Munna and another1.
1 (2004) 7 SCC 178
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14. Admittedly, it is a case where prosecution sought to prove
the guilt against the accused before the learned Sessions Judge
basing on the evidence of PW.1 and PW.2 - Police Constables who
were the so called members of the raid party and PW.5, the SI of
Police. PW.3 was the successor of PW.5. PW.4 was the Inspector of
Police who received sanction orders to prosecute the accused.
15. During the evidence, PW.1, PW.2, and PW.5 spoke the facts
as narrated in Ex.P-1 police proceedings. Their say was that as the
place of seizure was a remote place and as it was at odd hours, no
mediators were joined to witness the recovery. During the course
of cross-examination of PW.1, he deposed that about 100 meters
away to Sagileru Bridge there are houses. They did not ask any
passersby or the residents of those houses to come and act as
mediators. When it comes to the cross-examination of PW.5 - SI of
Police, he did not admit that there were residential houses within
their reach. However, he admitted that the place where the
recovery was affected used to be with vehicular moment. Ex.P-1 -
Police proceedings did not disclose about the location of houses at
a distance of 100 meters and whether the Police party went to that
place with a request to the residents of those locality to come as
mediators.
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16. Even by giving utmost allowance to the case of prosecution,
for non-joining of mediators, still the case of prosecution must
crumble on its own because the prosecution failed to establish the
identity of the sample that was claimed to be lifted. As seen from
Ex.P-1, the alleged offence was on 07.07.2003. As seen from Ex.C-
1 the Police filed a Memo before the jurisdictional Magistrate
seeking permission to defuse 6 gelatin sticks. Accordingly orders
were passed under Ex.C-1(1) and Ex.C-1(2) and it was dated
19.07.2003. According to Ex.P-5, disposal certificate issued by P.
Vijaya Saradhi, RSI, DAR, Prakasam, the so called gelatin sticks
were destroyed on 01.08.2003 in the presence of Sub-Inspector
and before destroying small quantity of representation sample of
the substance from each item so preserved for examination by the
FSL. So, their case was that on 01.08.2003 the gelatin sticks were
destroyed after preserving the substance therein for the chemical
analysis. When that was the situation, the prosecution did not
explain as to why there was delay of 2 years 4 months in sending
the sample. Ex.P-3(1) letter of advice did not show the date of
sending. However, Ex.P-3(2) reveals that A.V.Ranganath,
Additional Superintendent of Police sent the sample on
04.12.2005 to the Director, Forensic Science Laboratory, Red
Hills, Hyderabad. According to the evidence of PW.3, he was the
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successor of PW.5, who forwarded the sample to the SDPO.
According to PW.5, he handed over the investigation to his
successor. So, when there was abnormal delay of 2 years 4
months in sending the sample to the Forensic Science Laboratory,
the chain of custody of the sample was not proved. The chain of
the custody of the sample assumes greater importance in this case
because of the discrepancy in Ex.P-3(2). As seen from Ex.P-3(2), it
reads that Additional Superintendent of Police forwarded the
objects preserved by the B.D. and B. Team expert at the time of
defusing gelatin sticks on 20.11.2005. So, it means that what was
seen under the cover of Ex.P-3(2) was the sample that was
preserved on 20.11.2005. The case of prosecution is that on
01.08.2003 sample was preserved. So, if Ex.P-3(2) is considered, it
is very clear that the sample so preserved on 01.08.2003 was not
forwarded to the chemical examiner. So, what is evident is that
under the guise of material objects in Crime No.84 of 2003, the
sample that was preserved on 20.11.2005 was sent to the
Director, Forensic Science Laboratory, Red Hills, Hyderabad. So,
not only the prosecution failed to explain the delay in sending the
sample and even otherwise the evidence on record goes to prove
that the substance that was preserved on 01.08.2003 was not at
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all forwarded but on the other hand a different sample preserved
on 20.11.2005 was forwarded.
17. The decision of the Hon'ble Apex Court in Union of India
(supra), cited by the learned Public Prosecutor, arose under the
provisions of Narcotic Drugs and Psychotropic Substances Act,
1985 (for short, 'the NDPS Act'), wherein the High Court of
Allahabad did not consider the effect of presumption under
Section 54 of the NDPS Act and admission of the accused before
the Customs Authorities. The Hon'ble Apex Court remanded the
matter to the High Court for consideration. Absolutely, the
decision of the Hon'ble Apex Court in Union of India (supra), with
the facts, has nothing to do with the present case on hand.
18. A perusal of the judgment reveals that the learned Sessions
Judge did not look into these serious flaws, which goes to the very
root of the case. So, when the own documents relied upon by the
prosecution presents serious infirmities in the prosecution, the
very conviction of the accused for the charge under Section 5 of
the Explosive Substances Act is not at all sustainable. The
prosecution miserably failed to prove that what was alleged to be
found in possession of the accused was of a highly explosive
substance. As rightly contended on behalf of the appellant the
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case of prosecution must crumble on its own documents. Hence,
the Criminal Appeal is liable to be allowed.
19. In the result, the Criminal Appeal is allowed setting aside
the conviction and sentence imposed against the
appellant/accused for the charge under Section 5 of the Explosive
Substances Act in Sessions Case No.331 of 2008, dated
07.04.2009, on the file of the Court of Sessions Judge, Prakasam
Division, Ongole. The fine amount, if any, paid by the
appellant/accused shall be refunded to her after the Appeal time
is over.
20. The Registry is directed to take steps immediately under
Section 388 Cr.P.C to certify the judgment of this Court including
the trial Court record, if any, to the trial Court on or before
09.01.2024. 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.
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JUSTICE A.V.RAVINDRA BABU
Date: 28.12.2023
Note:
Mark LR Copy
DSH
