D.J. Shivaji Rao vs The State Of Karnataka
2022 Latest Caselaw 3404 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                        BEFORE:

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.1062 OF 2011

BETWEEN

D.J. SHIVAJI RAO,
S/O. JAIMUNI RAO,
AGED ABOUT 29 YEARS,
DYAVASANDRA VILLAGE, THONDEBAVI HOBLI,
GOWRIBIDANUR TALUK,
CHIKKABALLAPURA DISTRICT.                     ...   APPELLANT

[BY SMT. K.K. THAYAMMA, ADVOCATE]

AND

THE STATE OF KARNATAKA
BY HENNUR POLICE STATION,
BENGALURU.                                ...   RESPONDENT

[BY SRI R.D. RENUKARADHYA, HCGP]

                            ***
      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
10.10.2011 PASSED BY THE P.O., FTC-VI, BANGALORE, IN S.C.
NO.14/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 5 OF THE EXPLOSIVE
SUBSTANCES ACT, 1908, AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO R.I., FOR A PERIOD OF THREE YEARS
AND TO PAY FINE OF Rs.25,000/-, AND IN DEFAULT, TO PAY A
FINE, THE ACCUSED SHALL FURTHER UNDERGO S.I., FOR A
PERIOD OF SIX MONTHS, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 5 OF THE EXPLOSIVE SUBSTANCE ACT, 1908.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING,
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                JUDGMENT

This appeal is preferred by accused No.4 in

S.C.No.14/2011 on the file of the Court of City Fast Track

(Sessions) Judge, Bengaluru City, challenging his

conviction and sentence for the offence punishable under

Section 5 of the Explosive Substances Act, 1908

[hereinafter referred to as 'Act' for short].

2. I have heard the learned counsel for appellant

and learned High Court Government Pleader for

respondent-State and perused the evidence and material

on record.

3. The brief facts of the prosecution are that on

25.04.2009 at 2.00 p.m., accused Nos.1 and 2 as per the

instructions of accused No.6 and his son accused No.3

were illegally transporting 70 bags of Ammonium Nitrate

in the vehicle bearing registration No.KA-23-3716 TATA

407 near KEB office, HBR Layout and pursuant to their

voluntarily statements, CW.1 conducted raid on the

godown of Abhi Traders of accused No.4 i.e; the

appellant herein and seized Ammonium Nitrate, G-

Narmada can A.P.Electrical Detonator, A.P.Explosive,

Explosive Sun 90, Aluminum super plain Detonator and

also conducted raid in the house of accused No.5 and

seized Ammonium Nitrate and thus, the accused persons

committed an offence punishable under Section 5 of the

Act.

4. In order to establish the guilt of the accused,

the prosecution got examined PWs.1 to 14 and got

marked Exs.P1 to P19 and MO's 1 to 18.

5. The learned Session Judge after appreciating

the evidence and material on record, acquitted accused

Nos.1 to 3, 5 and 6 and convicted the appellant/accused

No.4, for the charged offence, vide judgment dated

10.10.2011.

6. The learned Sessions Judge has come to the

conclusion that as per the evidence of PWs.1, 12 and 14

and the notification dated 10.12.2008 and letter No.

C.II(1)77/VI dated 18.03.2009 issued by the Chief

Controller of the explosives, petroleum and explosives

safety organization, Government of India, Ammonium

Nitrate is not an explosive substance, but it is one of the

chemical used for production of explosive substance. The

trial Court has therefore, come to the conclusion that

Ammonium Nitrate seized in the present case is not an

explosive substance and considering the same, accused

Nos.1 to 3, 5 and 6 were acquitted. The said finding has

become final and there is no appeal preferred by the

State.

7. So far as appellant/accused No.4 is

concerned, it is concluded that apart from Ammonium

Nitrate seized from the shop belonging to accused No.4,

MO's 11 and 12 namely Electric detonator and Gelatin

stick Sun-90 are seized, which are explosive substances

and therefore the same attracts the offence punishable

under Section 5 of the Act.

8. The learned counsel for the appellant would

vehemently contend that the shed from where MO's 10

and 11 are seized does not belong to the appellant and

moreover he has neither led the police to the said shed

nor MO's 10 and 11 are seized at his instance. It is

contended that the panchwitnesses to the seizure-

mahazar Ex.P5 has turned hostile and there is no

material to show that MO's 10 and 11 were stored in the

shed by the appellant. It is therefore contended that the

entire approach of the learned trial Court to convict the

appellant/accused No.4 is not in accordance with law.

9. The learned High Court Government Pleader

has argued that insofar as seizure of Ammonium Nitrate

bags are concerned the appellant has produced the bills

and therefore the trial Court has rightly come to the

conclusion that even MO's 10 and 11 which are seized

from the shop belong to appellant/accused No.4. He

therefore contends that there is no illegality committed

by the trial Court in convicting and sentencing the

appellant.

10. It is the specific case of prosecution that on

25.04.2009 at 12.45 p.m., C.W.1 received information

that Ammonium Nitrate is being illegally transported in

vehicle bearing No.KA-23-3716 TATA 407, as such the

said vehicle was intercepted and 70 bags of Ammonium

Nitrate was seized. Accused Nos.1 and 2 were

apprehended from the spot. It was revealed by them

that at the instruction of accused No.6 and his son

accused No.3, they were transporting Ammonium Nitrate

and the said Ammonium Nitrate bags belong to Abhi

Traders. Further, from the house of accused No.5 under

Ex.P6, Ammonium Nitrate bags were seized.

11. According to prosecution, after arrest of

accused No.1, his voluntary statement was recorded and

he led the Police to the shed/shop alleged to have taken

on rent by the appellant/accused No.4. In front of the

same, a mini goods vehicle bearing reg. No.KA-23/3716

TATA 407 and another vehicle bearing reg. No.KA-

40/3142 were parked. One Shivakumar, s/o.

Nanjundappa, a driver, informed that accused No.4 has

loaded the bags of urea in the said vehicles. The said

bags containing coated Ammonium Nitrate prills were

seized. It is the further case of the prosecution that

inside the shop also they found bags containing coated

Ammonium Nitrate prills and they were seized. Further,

a cardboard box containing electric detonator and gelatin

sticks were also seized which are marked as M.Os.10 and

11.

12. Admittedly, the appellant was not present in

the shed/shop at the time of conducting the seizure-

mahazar. The above articles are not seized at the

instance of the appellant. It is specifically stated that

one Shivakumar informed that the appellant had loaded

the vehicle with the bags containing coated Ammonium

Nitrate prills etc. The said Shivakumar has not been

examined. The panchwitnesses to Ex.P5 viz., P.Ws.6, 7

and 8 have not supported the case of the prosecution.

13. P.W.3 has admitted in the cross-examination

that there is no material to show that the Ammonium

Nitrate was loaded in the vehicle by Abhi Traders. P.W.9

has deposed that he has never hired vehicle bearing reg.

No.KA-40/3142 to accused No.4. The Investigation

Officer-P.W.14 has stated that it was accused No.1 who

led the Police to the House of one Gangojirao. He has

admitted in the cross-examination that there is no

material to show that accused No.4 had taken the shed

on rent. He has specifically stated that the owner of the

shed is one Santhojirao. In view of the said admission, it

cannot be said that the prosecution has been able to

establish that M.Os.10 and 11 which are seized under

Ex.P5 from the shed belong to the appellant or that he

was in possession or control of the same. Hence, the

findings recorded by the trial Court that the

appellant/accused No.4 was in possession of M.Os.11 to

16 and thus he was in control of explosive substances in

his shed is not based on the evidence and material on

record. The reasons assigned by the learned Sessions

Judge for convicting the appellant/accused No.4,

observing that he has impliedly admitted the seizure of

M.Os.11 and 12 was not proper. From the evidence and

material on record, it cannot be held that the prosecution

has been able to establish the guilt of the accused for the

offence punishable under Section 5 of the Act, beyond all

reasonable doubt. Hence, the appeal succeeds.

Accordingly the following:

ORDER

Appeal is allowed.

The Judgment and Order dated 10.10.2011 passed

by the Court of City Fast Track [Sessions] Judge,

Bengaluru City, in S.C. No.14/2011, convicting and

sentencing the appellant/accused No.4 for offence

punishable under Section 5 of the Explosive Substances

Act, 1908 is hereby set aside. The accused is acquitted

and his bail bonds stand cancelled.

Sd/-

JUDGE

HB & Ksm*