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2019 DIGILAW 400 (ORI)

Raju @ Rajendra Kumar Agrawal v. State of Odisha

2019-05-22

D.DASH

body2019
JUDGMENT : 1. The petitioner, by filing this revision has impeached an order dated 21.07.2016 passed by the learned Special Judge Kalahandi, Bhawanipatna in C.T. no. 06 of 2016, rejecting an application filed by the petitioner for his discharge. 2. On receipt of written report of some of the inhabitants of village Jamunabahal and the nearby area, under the jurisdiction of Bhawanipatna Sadar Police Station, the Inspector-in-Charge of said Police Station registered P.S. Case no. 131 of 2014 for commission of offence under section 286/34 of the Indian Penal Code (in short ‘the IPC’) and section 4/5/6 of the Explosive Substances Act, 1908 (for short, the ES Act). It is alleged therein that this petitioner, who has arraigned therein as an accused, being the person in management and control of a stone crusher unit engaged labourers in carrying out blasting of stones, in a hillock locally known as ‘Lampty Pahad’ endangering human life as also animals and other species, damaging cultivation and causing problem to the general public on various fronts. On completion of investigation, charge-sheet has been submitted placing the petitioner for trial for commission of offence under section 286 of IPC and section 4/5/6 of the ES Act. The trial court on going through the materials placed from the side of the prosecution and upon consideration of the same, has found out the grounds to presume that the petitioner had committed the said offences. 3. Learned counsel for the petitioner (accused) submitted that even accepting all the materials collected in course of the investigation as such, on their face value, including the statement of the witnesses as placed, no prima facie case for commission of offence under section 286 of the IPC and section 4/5/6 of the E.S. Act is made out. According to him, admittedly, the petitioner accused was then running a crusher unit. It was his submission that the petitioner (accused) had no explosive license, which he had applied for and was under consideration. According to him, admittedly, the petitioner accused was then running a crusher unit. It was his submission that the petitioner (accused) had no explosive license, which he had applied for and was under consideration. He submitted that under the circumstance, in the absence of any material to show that this petitioner at any time was found or seen to be carrying out the blasting operations by using and/or through the explosive substance either directly or by his agents, employees and servants etc, the court below has erred in law in rejecting the application for discharge and proceeding to say that a prima facie case is made out against the petitioner for commission of offence under section 286 of the IPC and section4/5/6 of the E.S. Act. 4. Learned Addl. Standing Counsel submitted all in favour of the impugned order. According to him, when the local inhabitants have given their statements in course of investigation that the petitioner (accused) has been carrying out the blasting operations in his area through his employees, the court below did commit no mistake in refusing to discharge the petitioner (accused). He further submitted that the facts and circumstances which are emerging from the material collected in course of investigation when clearly lead to a strong suspicion on the score of carrying out the blasting of stones there by the petitioner (accused), the order in question is unassailable. 5. In order to address the submissions as have been advanced in judging the sustainability of the impugned order; let’s first take note of the ingredients which constitute the offence under section 286 of the IPC. This penal section deals with the negligent conduct with respect to the explosive substances. The first and foremost ingredient for the said offence is that there must have been the dealing with the explosive substance. 6. The definition of ‘explosive substance’ being not provided in the IPC, the same as it finds mention in section 2(a) of the E.S. Act comes to be adhered to. The “explosive substance” is deemed include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adopted for causing, or abiding in causing any explosion in or with any explosive substance; also any part of such apparatus or machine or implement. The “explosive substance” is deemed include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adopted for causing, or abiding in causing any explosion in or with any explosive substance; also any part of such apparatus or machine or implement. The definition is inclusive and has a broader and more comprehensive meaning then the term “explosive”. The Investigating Officer on the same day having visited the spot, has ascertained the existence of the crusher machine and vibrator machine on southern side of the road; besides noting the existence of a tube well by the side of vibrator machine. For better appreciation, the relevant part of the spot visit report as noted by the Investigating Officer is quoted herein below:- “xxx xxx xxx xxx xxx xxx xxx xxx “A crusher machine and vibrator machine situated on the southern side of the road and one tube well situated near the vibrator machine. One rest room and a coconut tree situated near the spot. During my spot visit, no any untoward incident came to my notice.” It may be stated here that the written report having been received on 11.08.2014, the spot visit had been made on the same day. On that day of the spot visit, three tractors; two fitted with compressor and one with a road breaker as also some drilling rods had been seized. Three witnesses being examined then during that time have gone to state that the petitioner (accused) had been engaged in blasting of stones causing likelihood of endangering human life and damages to the cultivation carried out on nearby area. They have stated that having gone to the place they had found that the petitioner (accused) was planning to carry out the blasting of stone through his employees. All have further stated that the petitioner was not present at the spot. In the absence of any further material being so collected in the direction that the tractors fitted with compressor and road breaker together with drilling rods had been used in or with any explosive substance in causing any explosion; by the petitioner himself or under his direction by his employees; mere seizure of the tractors fitted with compressor and road breakers together with the drilling rods do not lead to include those within the ambit of the definition of explosive substance. The seizure of those tractors fitted with compressors and road breakers as well as the drilling rods even if so taken to have been seized from the possession of the petitioner (accused) do not go to fulfill the very first ingredient for the offence under section 286 of the IPC. Mere likelihood of suspicion or sheer suspicion without any material to support the same cannot lead to conclude that the petitioner (accused) was using those machines in causing the explosion in or with any explosive substance. In that view of the matter, based on the materials placed from the side of the prosecution, said seizure of the tractor with the compressors and road breakers as well as the drilling rods from near the crusher run by the petitioner (accused) is of no avail in so far as the commission of offences under section 4/5/6 of the E.S. Act are concerned and as such no prima facie case can be said to have been made out against the petitioner also for those offences. 7. In the wake of aforesaid, the impugned order dated 21.07.2016 passed by the learned Special Judge, Kalahandi-Bhawanipatan in C.T. Case no. 06 of 2016 is set aside and it is directed that the petitioner be discharged. Resultantly, the CRLREV is allowed.