Madras High Court
M.Duraisamy vs State Rep.By on 2 March, 2023
Crl.RC.No.398 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.R.C.No.398 of 2017
M.Duraisamy ...Petitioner/Appellant/Accused No.1
.Vs.
State Rep.by
The Inspector of Police
Mahudanchavadi Police Station
Salem District. ... Respondent/Respondent/ Complainant/
Crime No.216 of 2012.
Criminal Revision filed under Sections 397 & 401 of the Code of Criminal
Procedure, setting aside the judgment dated 28.11.2016 in Crl.A.No.59 of 2016,
on the file of II Additional District and Sessions Judge, Salem by confirming the
judgment passed in S.C.No.296 of 2014, on the file of Assistant Sessions Court,
Sankari dated 30.03.2016.
For Petitioner Mr.R.Marudhachalamurthy
For Respondent Mr. L.Baskaran
Government Advocate (Crl.side)
https://www.mhc.tn.gov.in/judis
Page No.1 of 8
Crl.RC.No.398 of 2017
ORDER
This Criminal Revision Case has been filed against the judgement and order
passed by the II Additional District and Sessions Judge, Salem in Crl.A.No.59 of
2016, dated 28.11.2016, confirming the judgment and order passed by the
Assistant Sessions Judge, Sankari in S.C.No.296 of 2014, dated 30.03.2016,
convicting the petitioner for offence under Section 5 of the Explosive Substances
Act, 1908 and sentencing him to undergo one year simple imprisonment and to
pay a fine of Rs.10,000/- and in default to undergo three months simple
imprisonment.
2.The case of the prosecution is that the Inspector of Police and his police
party were on a patrolling duty on 24.02.2012 at about 2.30 pm., at Vellalapuram
Village. They found the petitioner moving in a suspicious manner, therefore they
caught the petitioner and enquired him and the petitioner is said to have admitted
that he is in possession of explosive substances viz., 3 live electronic detonators
and 50 safety fuse wires. The same was recovered from the petitioner and it was
found that the petitioner was in possession of these explosive substances without
any valid license.
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Crl.RC.No.398 of 2017
3.The detonator was in capacitated and the same was recovered along with
the fuse wires. An FIR (Ex.P-8) came to be registered by PW-9 in Crime No.216
of 2012. The investigation was taken up by PW-12. There were totally two
accused persons shown in the FIR and the petitioner was ranked as A-1. The
statements were recorded from the witnesses under Section 161(3) Cr.PC., and the
necessary reports were also collected from the experts. On completion of the
investigation, the final report was placed before the District Collector, Salem. The
District Collector, through proceedings dated 08.07.2013, accorded sanction to
PW-14, to file the final report and to prosecute the case. Accordingly, the final
report was filed before the Judicial Magistrate No.II, Sankari.
4.The Trial Court framed charges against the petitioner and another for
offence under Section 5 of the Explosive Substances Act and also under Section
9(B) of the Explosives Act.
5.The prosecution examined PW-1 to PW-14 and marked Exs.P-1 to P-16.
The incriminating evidence that was collected during the course of trial was put to
the accused persons and they denied the same as false.
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Crl.RC.No.398 of 2017
6.The Trial Court on considering the facts and circumstances of the case
and on appreciating the oral and documentary evidence, came to a conclusion that
the prosecution has made out the case beyond reasonable doubts as against the
petitioner and accordingly, convicted and sentenced the petitioner for offence
under Section 5 of the Explosive Substances Act. A-2 was acquitted from all
charges.
7.Aggrieved by the judgment and order passed by the Trial Court, the
petitioner filed an appeal before the II Additional District and Sessions Judge,
Salem and the same was taken on file in Crl.A.No.59 fo 2016. The Appellate
Court on reappreciation of evidence and after considering the findings of the Trial
Court, confirmed the judgment and order passed by the Trial Court through
judgment dated 28.11.2016. Aggrieved by the same, the present Criminal
Revision Case has been filed before this Court.
8.Heard Mr.R.Marudhachalamurthy, learned counsel for the petitioner and
Mr. L.Baskaran, learned Government Advocate (Crl.side) appearing on behalf of
the respondent.
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Crl.RC.No.398 of 2017
9.This Court has carefully considered the submissions made on either side
and the materials available on record.
10.On carefully going through the evidence and the documents that were
marked before the Trial Court, it is seen that the petitioner was in possession of
Explosive Substances and he was in possession of the same without any valid
license. To that extent, the findings of both the Courts below is unassailable.
11.To constitute an offence under Section 5 of the Explosive Substances
Act, 1908, the prosecution has to prove three ingredients and they are ;
(I) That the substance in question is explosive substance.
(II) That the accused makes or knowingly has in possession or under his
control explosive substance ; and
(III) That he does so under such circumstances as to give rise to a
reasonable suspicion that he is not doing so for a lawful object.
12.The burden of proof of the above three ingredients is solely on the
prosecution. The moment the prosecution has discharged that burden , it shifts to
the accused person to show that he was making or possessing the explosive
substance for a lawful object. Useful reference can be made to the judgment of the
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Crl.RC.No.398 of 2017
Apex Court in this regard in Mohamad Usman Mohammad Hussain Maniyar
and Ors .vs. The State of Maharashtra, reported in AIR (1981) SC 1062.
13.In the instant case, the first two ingredients has been proved as already
stated supra. The third ingredient has not been proved by the prosecution against
the petitioner. The prosecution no where has proved that the petitioner, who was
in possession of the explosive substance had created the reasonable suspicion that
he is possessing the same for an unlawful object. Even as per the confession
statement that was recorded from the petitioner, it is clear that the petitioner was
having the explosive substance to blast the rock inside his well.
14.Both the Courts below did not consider this crucial aspect and they went
ahead and convicted and sentenced the petitioner merely on the ground that the
petitioner was possessing explosive substances without any valid license. The
third ingredient has not been proved by the prosecution and the offence under
Section 5 of the Explosive Substances Act, 1908, is not made out.
15.In the light of the above discussion, this Court finds that the conviction
and sentence imposed by both the Courts below against the petitioner suffers from
illegality and the same is liable to be interfered by this Court in exercise of its
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Crl.RC.No.398 of 2017
revisional jurisdiction. Accordingly, the judgment and order passed by both the
Courts below are hereby set aside.
16.In the result, this Criminal Revision Case stands allowed. During the
pendency of this criminal revision, the sentence was suspended by this Court by
an order dated 17.03.2017 in Crl.MP.Nos.3678 and 3877 of 2017 in
Crl.Rc.No.398 of 2017. Since the petitioner is acquitted from the charge, the bail
bond shall stand cancelled and fine amount, if any, paid by the petitioner shall be
refunded.
02.03.2023
Index : Yes
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes
kp
To
1.II Additional District and Sessions Judge,
Salem
2.Assistant Sessions Court,
Sankari.
3.The Inspector of Police
Mahudanchavadi Police Station
Salem District.
4.The Public Prosecutor
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.RC.No.398 of 2017
N. ANAND VENKATESH, J.
kp
Crl.R.C.No.398 of 2017
02.03.2023
https://www.mhc.tn.gov.in/judis
