Allowed

Samirbasha @ Basha S/O. Khajahussain v. the State of Karnataka by

Karnataka HC6 Oct 2020CRL.A/2574/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal against conviction for offences under the Explosives Act and IPC, acquitting the appellants due to insufficient evidence proving contravention of notification and lack of material for conspiracy.

What did the court decide?

Impugned judgment set-aside; appellants acquitted; bail bonds cancelled; fine refunded.

Samirbasha @ Basha S/O. Khajahussain Vs the… — Criminal Trial and Appeal | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 06^TH DAY OF OCTOBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL.A. NO.2574 OF 2013

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BETWEEN:

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SAMIRBASHA @ BASHA S/O KHAJAHUSSAIN AGE:26 YEARS, OCC:CARPENTER, R/O BANDIMOTH, SULEMKHAN STREET, BANGALORE ROAD, BELLARY,

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DIST:BELLARY.

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DADAFEER @ DUDFEER S/O KHUDDUS AGE:25 YEARS, OCC:PETTY BUSINESS, R/O WADDAR BHANDA, BEHIND RADHIKA TALKIES, BANNERGHATTA ROAD, BELALRY, DIST:BALLARY. …APPELLANTS

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(BY SRI. B.S.SANGATI, ADVOCATE)

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AND:

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THE STATE OOF KARNATAKA BY ITS P.I., DHARWAD SUB-URBAN P.S., REP. BY SPP HIGH COURT, CIRCUIT BENCH BUILDING, DHARWAD-580011.

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…RESPONDENT

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(BY MS. SEEMA SHIVA NAIK, HCGP)

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THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C SEEKING TO SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 2.2.2013 PASSED BY THE COURT OF FAST TRACK COURT-III, DHARWAD IN SC NO.118/2011 FOR THE OFFENCE PUNISHABLE UNDER SECTION 9B(2) OF EXPLOSIVES ACT 1884 AND UNDER SECTION 120(B) OF IPC, AND AQUIT THE APPELLANTS FOR THE CHARGES LEVELLED AGAINST THEM.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by accused Nos.1 and

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2 challenging their conviction and sentence passed in SC No.118/2011 on the file of the Fast Track Court-III, Dharwad, wherein the learned Presiding Officer, by judgment dated 2.2.2013, has convicted them for the offence punishable under Section 9B(2) of the Explosives Act, 1884

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(for short, ‘Act’) and Section 120B of IPC.

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Heard the learned counsel for the appellants and the learned HCGP for the respondent-State and perused the evidence and materials on record.

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Brief facts: on 22.3.2011 at about 5 p.m., the complainant and his staff were on duty at by-pass cross near Anjaneya Nagar. They intercepted one Tata Indica Car bearing

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registration No.KA-34/A-3273, wherein accused Nos.1 and 2 were sitting in the backseat. The accused were carrying a plastic bag which contained two iron pipes with collar bolts fitted at both ends. It looked like bombs. Both the accused were arrested and the iron pipes were seized from their possession. On enquiry, accused Nos.1 and 2 revealed that the said articles were given to them by one Ravi Kumar, accused No.3.

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After completion of investigation, charge sheet was filed against the accused, showing accused No.3 as absconding. Charges were framed against accused Nos.1 and 2 for the offences punishable under Section 9B(2) of the Explosives Act, 1884 and Section 120B of IPC.

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The case of the prosecution is that, both accused No.1 and 2 were in possession of explosive substances i.e. suspected bombs and other articles, in violation of Section 5 of the Act

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and with a common intention with accused No.3, they agreed to possess the said explosive substances illegally, in pursuance of a conspiracy entered between them and thereby committed the offence punishable under Section 9B(2) of the Explosives Act, 1884 and Section 120B of IPC.

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In order to establish its case, the prosecution in all examined PW1 to 14 and got marked Exs.P1 to P31(a) and MOs 1 to 11. The Trial Court after considering the oral and documentary evidence on record, convicted the accused for the charged offences and sentenced

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them to undergo simple imprisonment for a period of two years and to pay fine of Rs.3,000/- each, in default, to undergo simple imprisonment for a period of three months, for the offence punishable under Section 9B(2) of the Act. Further, to undergo simple imprisonment for a period of six months and to pay a fine of Rs.500/- each, in

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default, to undergo simple imprisonment for a period of one month, for the offence punishable under Section 120B of IPC.

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Assailing the impugned judgment passed

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by the trial Court, the learned counsel for the appellants would contend that the entire allegations are false. Panch witnesses to the seizure mahazar have not supported the prosecution case. The complainant himself being a Police Officer was not justified in conducting the investigation. All the witnesses who supported the prosecution case are interested witnesses. He contends that the accused were taken into custody much prior to the date of incident and they were falsely implicated in the case. He further submits that the seized articles cannot be said to be explosive substances and in this regard, no notification has been produced and marked to show that MOs1 and 2 are explosive substances.

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He further submits that the accused have already undergone imprisonment for nearly six months. Accordingly, he seeks to allow the appeal by setting aside the impugned judgment and order of conviction and sentence passed by the trial Court.

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Per contra, the learned HCGP would

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contend that though the panch witnesses have turned hostile, all other witnesses have supported the case of prosecution. The accused were caught red handed. The suspected bombs were seized from their possession and thereafter, the same were sent for chemical analysis. The evidence of the Scientific Officer and FSL report clearly establishes that the articles seized are explosives. Therefore, the accused are rightly convicted by the trial Court for the charged offences. She submits that there is no illegality committed by the trial Court. Accordingly, she seeks to dismiss the appeal.

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PW1 is the first informant, who lodged the complaint as per Ex.P1. He has reiterated the averments made in the complaint. PW3 and 7 are other police officials, who were along with PW1 when the accused were apprehended and seizure was conducted. PW1 in his evidence has stated that on 22.3.2011 at about 5 p.m., he was on duty along with his staff namely HC 1091(PW3), HC 1078, PC 1961 and the Jeep driver-PC 260 (PW7). PW1 has stated that when they intercepted the car, they found a plastic carry bag which was kept between accused Nos.1 and 2. When he enquired about the same, accused No.1 opened the bag. Inside the bag, there were two iron pipes. He has stated that since the accused did not reply satisfactorily, he apprehended both the accused and secured panchas to the spot and in their presence, he seized those articles under Ex.P2.

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PW1 has stated that the mahazar was

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conducted in the presence of panch witnesses. Thereafter, the seized articles were produced before the Police Inspector-PW12 and in turn PW12 registered a case against the accused and sent the FIR to the Court. Thereafter, the car was seized under a mahazar-Ex.P11. He filed an application seeking permission to defuse the bomb and obtained permission from the Court. Thereafter, the bomb was defused and the separated materials namely MOs1, 2, 6 to 11 were stored in eight plastic containers.

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PW11 has stated that the bomb was

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defused by PW14 as per the order of the Court in his presence and separated the materials and drawn mahazar as per Ex.P15.

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PW13 is the Scientific Officer, FSL Bengaluru. He has issued the report as per

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Ex.P27, after examining the articles namely MOs1, 2, 6 to 11.

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It is the specific case of the prosecution that accused Nos.1 and 2 were in possession of

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two iron pipes suspected to be bombs. PW1 has stated that the accused themselves have told him that those are bombs. Therefore, the said two iron pipes were seized under Ex.P3 from the possession of accused No.1 and 2. Subsequently, the materials found in the iron pipes were separated and the same were sent for chemical examination and the report was submitted by PW13 as per Ex.P27.

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It is relevant to see that the seizure mahazar-Ex.P3 was conducted in the presence of panch witnesses. However, PW2-panch witness has not supported the case of prosecution. He has given a complete go by to the prosecution case. Ex.P11 is the mahazar conducted in respect of seizure of the car. However, PW1-panch witness

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has not supported the prosecution case. PW5, the driver of the car, has also not supported the case of prosecution. Though PW5 has stated that the police intercepted his car near the circle, but he has stated that nothing was seized from the car. In the cross-examination conducted by the defence, PW5 has stated that when the accused got into his car in Ballari, they were not carrying anything and when the police stopped the car, nothing was in the car.

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Even according to the prosecution, the carry bag, in which the suspected bombs were found was in the back seat of the car, kept between accused No.1 and 2. Hence, it cannot be said that the said bag was in the exclusive possession of either of the accused. According to PW1, when he enquired the accused, they did not give satisfactory answer. Hence, he became suspicious and apprehended them. Thereafter, he secured two panchas and seized the same. As

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already observed, PW5 has stated that when the accused got into the car, they were not carrying anything. The independent panch witness to Ex.P2 has not supported the prosecution case.

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Another important aspect is that, PW14 has stated that on 24.3.2011, his team defused the two live pipe bombs and separated into 8 parts including the chemical substances found inside the iron pipes. Thereafter, the said articles were sealed. PW11 and PW12 have stated that the said articles were sealed by PW14 and handed over to them. According to PW14, PW11 conducted a mahazar on receiving the sealed articles. None of them have stated that the mahazar was conducted in the presence of independent panchas. PW11 has clearly stated that a mahazar as per Ex.P15 was conducted in the police station in the presence of two panchas namely PW8 and PW9. The evidence of PW8 is not consistent. He has stated that he cannot identify the articles shown

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by the police. In another breath, he has stated that the police have shown the items. According to him, he was alone when the mahazar was prepared. PW9 has stated that he signed Ex.P15. But the police did not show anything to him.

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Admittedly, when MOs1, 2, 6 to 11 were handed over by PW14, it was in a sealed condition. PW13, the Scientific Officer has stated that he received those sealed articles on 30.03.2011. If that is so, it cannot be said that in the police station when Ex.P15 was prepared, articles were shown to either PW8 or PW9 and that they were present at the time of separating the items from the two iron pipes alleged to have seized from the accused. Because the articles were already brought to the police station in a sealed condition. When the prosecution wants to establish that the materials contained in the two iron pipes are explosive substances, then the same should be established in accordance with law. Though

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Ex.P27-report issued by PW13 shows the presence of certain explosive substances in the articles sent to him, the prosecution has not satisfactorily established that those articles were removed or separated from the two pipes which were seized from the possession of the accused.

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It is relevant to see that the charges were framed against the accused for the offence punishable under Section 9B(2) of the Explosives Act, 1884 and Section 120B of IPC.

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Section 9B(2) of the Act reads as under:

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“ xxx xxx xxx

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(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

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be punishable with fine which may extend to five thousand rupees. ”

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In order to attract Section 9B(2) of the Act, the prosecution has to establish that in contravention of the notification issued under Section 6 of the Act, the accused were either found manufacturing or they were in possession etc. of any explosives. In the instant case, the prosecution has not produced any such notification to show that the accused were in possession of such explosives, in contravention of such notification issued under Section 6 of the Act. When there is a specific charge framed against the accused, the prosecution has to establish the said charge beyond all reasonable doubts. In this case, though PW13 has given a report as per Ex.P27 stating that certain explosive substances were present in the articles sent to him for examination, however, the prosecution has failed to establish that the accused were in possession of

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the explosives, in contravention of Section 9B(2) of the Act.

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Though it is the case of prosecution that

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the accused have conspired to commit the offence,

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but there is absolutely no material to show that they had either conspired together or conspired with the absconding accused to commit the offence, as alleged by the prosecution. According to the prosecution, the articles from the possession of Accused Nos.1 and 2 were handed over to them by accused No.3, but the said accused has not been traced.

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For the foregoing reasons, it cannot be said that the prosecution has established the guilt of the accused for the charged offences beyond all reasonable doubts. The accused are entitled to benefit of doubt. Hence, the following:

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ORDER

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a) Appeal is allowed.

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b) The impugned judgment and order dated 2.2.2013 passed in SC No.118/2011 on the file of the Fast Track Court-III, Dharwad is hereby set-aside.

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c) The accused are acquitted of the charged offences under Section 9B(2) of the Explosives Act, 1884 and Section 120B of IPC.

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d) Their bail bonds shall stand cancelled.

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e) The fine amount if any deposited by the accused, the same shall be refunded to them.

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JUDGE

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Sd/-

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JTR

Samirbasha @ Basha S/O. Khajahussain v. the State of Karnataka by

Case brief

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Samirbasha @ Basha S/O. Khajahussain v. the State of Karnataka by

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