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2012 DIGILAW 506 (UTT)

State of U. P. v. Khalil Ahmad

2012-08-29

PRAFULLA C.PANT

body2012
JUDGMENT : This appeal, preferred under section 378 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 15.01.1999, passed by Learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 21 of 1992, whereby said court has acquitted the accused/respondents Khalil Ahmad and Hari Prasad Dhulia, from the charge of offences punishable under section 9B (1) (b) of Explosives Act, 1884, and one punishable under section 4(b) of Explosives Substances Act, 1908. (2) Heard learned counsel for the parties, and perused the lower court record. (3) Prosecution story, in brief, is that PW2 Surya Mani, an employee of the Tehri Hydro Development Corporation (for short THDC) lodged First Information Report (Ex-A1) on 05.03.1991, at police station Tehri, alleging that on said date at about 11.15 a.m. the accused/respondent Khalil Ahmad came at the gate of THDC store on a motor cycle bearing registration no. UGO7615 with a sealed packet. He was entitled to carry 25 kgs of gelatin and 10 detonators but he was found in possession of 50 sticks of gelatin without gate pass. Finding that the gelatin in possession of Khalil Ahmad was in excess of the quantity, than what he was entitled to carry, the matter was reported to Company Commander L.D.Suman and Assistant Commander Shri D.S.Mehra (PW4). Accused Khalil Ahmad disclosed at the gate that the excess gelatin sticks were given to him by accused/respondent no.2 Hari Prasad Dhulia, the store keeper. On this, the van containing explosive was thoroughly checked in the presence of Deputy Manager Store, V.K.Badoni (PW1), and it was found that on 64 sticks of gelatin were in excess regarding which there was no entry in the register. Said van was under the charge of accused/respondent no.2 Hari Prasad Dhulia. Thereafter, the First Information Report, as mentioned above, was lodged at the Police Station and Head Constable Balwant Singh (PW7) prepared check report, and registered Crime No. 57 of 1991 against Khalil Ahmad and Hari Prasad Dhulia, in respect of offences punishable under section 4(b) Explosives Substances Act, 1908, and section 9B of Explosives Act, 1884. The investigation was initiated by PW8 S.L. Lavaniya and the same was later taken over by Inspector Ram Babu Singh (PW6), and finally concluded by PW5 K.S.Verma, who submitted charge sheet against the two accused/respondents after obtaining sanction from the District Magistrate. The investigation was initiated by PW8 S.L. Lavaniya and the same was later taken over by Inspector Ram Babu Singh (PW6), and finally concluded by PW5 K.S.Verma, who submitted charge sheet against the two accused/respondents after obtaining sanction from the District Magistrate. Also, report (Ex A-3) was obtained from chemical analyst regarding the substance allegedly found in possession of the accused. (4) The Chief Judicial Magistrate, Tehri, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. On 23.06.1993, Learned Additional Sessions Judge, Tehri Garhwal, framed charge in respect of offences punishable under section under section 9B (1) (b) of Explosives Act, 1884, and one punishable under section 4(b) of Explosives Substances Act, 1908, against accused Hari Prasad Dhulia, and accused Khalil Ahmad. Both of them pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 V.K.Badoni (Store Manager of THDC), PW2 Surya Mani [Sub Inspector of Central Industrial Security Forces, (for short CISF)], PW3 Constable Makan Singh (of CISF), PW4 Assistant Commandant D.S. Mehra (of CISF), PW5 Inspector K.S.Verma (who concluded the investigation), PW6 Ram Babu Singh (who also investigated the crime), PW7 Head Constable Balwant Singh (who registered the crime at police station) and PW8 Sub Inspector S.L.Lavaniya (who started investigation). The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which the accused Khalil Ahmad admitted that the CISF men were duty at the gate of THDC and he had entitlement of possession of only 25 kgs of gelatin and 10 detonators, as to the rest of the facts he stated that evidence adduced against him is false. Similarly, accused Hari Prasad Dhulia admitted that the CISF men were on duty, but he alleged that the rest of the evidence adduced against him was false. However, no evidence in defence was adduced. After recording the evidence of the parties, the trial court found that the charge against the accused/respondents was not proved. It also found that the investigation was not conducted by the competent officer. The trial court further observed that the sanction for prosecution was also not given by the competent authority. As such, the trial court acquitted both the accused from the charge. It also found that the investigation was not conducted by the competent officer. The trial court further observed that the sanction for prosecution was also not given by the competent authority. As such, the trial court acquitted both the accused from the charge. Aggrieved by said judgment and order dated 15.01.1999, passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No. 21 of 1992, this appeal was filed by the State before Allahabad High Court from where it is received under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. (5) Before further discussion, this Court thinks it just and proper to mention that section 7 of Explosives Substances Act, 1908, reads as under:-Restriction on trial of offences – “ No court shall proceed to the trial of any person for an offence under this Act except with the consent of the District Magistrate”. (6) Expression 'District Magistrate' in aforesaid section has been added vide Act No 54 of 2001 with effect from 01.02.2002. Before said date (01.02.2002) there was expression “ Central Government” mentioned in the section. In other words, prior to 01.02.2002 prosecution under Explosives Substances Act, 1908, could have been maintained only with the sanction from the Central Government. It is only after 01.02.2002, the District Magistrate has power to grant sanction of prosecute a person under said Act. That being so, this trial which started in the year 1992 and concluded in the year 1999, was without sanction from the Central Government, as the sanction (Ex A-4) granted by District Magistrate, Tehri Garhwal is no sanction in the eyes of law. Learned counsel for the State/appellant failed to show that the prior to 01.02.2002, the District Magistrate, Tehri Garhwal, had any authority to grant sanction for prosecution under Explosives Act, 1884, on behalf of the Central Government. As such, this Court is of the view that trial court has rightly observed that accused/respondents Khalil Ahmad and Hari Prasad Dhulia cannot be convicted under section 4(b) of Explosives Substances Act, 1908. Therefore, the impugned judgment does not require interference of this court. (7) Now, this Court has to examine whether the accused/respondents were rightly acquitted from the charge of offences punishable under section 9B (1) (b) of Explosives Act, 1884, or not. Therefore, the impugned judgment does not require interference of this court. (7) Now, this Court has to examine whether the accused/respondents were rightly acquitted from the charge of offences punishable under section 9B (1) (b) of Explosives Act, 1884, or not. In this connection, it is pertinent to mention here that admittedly accused/respondent Khalil Ahmad was the person, who was entitled to carry 25 kgs of gelatin and 10 detonators with him for construction purpose of Tehri dam, which was being constructed by THDC. The allegation is this that he was carrying fifty gelatin rods allegedly in excess of quantity he was entitled to carry but for the reasons best known to the prosecution the same was not weighed. The explanation of the accused was that the gelatin rods were handed over to him for construction purposes by accused/ respondent Hari Prasad Dhulia, Incharge Store of the Explosives. The explanation of the co-accused Hari Prasad Dhulia is that the gelatin rods and detonators are issued by the Engineer of the THDC for construction purposes. It has also come on the record in the cross examination of the witnesses that accused Hari Prasad Dhulia has suggested that 64 rods of gelatin were found in the van, for the reason that the same could not be used in time during the rainy season. It is not a case where a terrorist or any unauthorized person was in possession of the explosive material, rather both the accused were working for THDC in connection with the construction of the dam. It is not disputed that gelatin tube and detonators are required for blasting purpose in connection for construction of roads and dams. Learned counsel for the respondents submitted that even in the departmental inquiry both the respondents were exonerated of the charge. It has also come on the record that the explosive material found in possession of the accused/respondents was not even weight as such, it cannot be said that it is proved beyond reasonable doubt that the same was in excess of the quantity, the accused were entitled to possess. (8) Therefore, for the reasons as discussed above, the impugned judgment and order does not require any interference. Accordingly, the appeal is dismissed. Lower court record be sent back.