CRA-S-387-SB of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA-S-387-SB of 2008 Date of decision:
17. 07.2014 Jagtar Singh Hawara ........ Appellant Versus State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH1 Whether Reporters of the local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the digest?. Present: Mr. H.S. Bhullar, Advocate for the appellant. Mr. Anil Kumar, DAG, Haryana. R.P. NAGRATH, J.
The appellant was in custody of police in FIR No.88 dated 15.12.1995 for offences under Sections 302, 395, 396 etc. of Indian Penal Code (IPC) and Section 25 of the Arms Act, 1959, registered at Police Station Naggal.
2. The prosecution story in brief is that on 17.01.1996, the appellant made a disclosure statement while in custody, the relevant portion of which in the light of admissibility under the law is that he has kept concealed 11 kgs. of RDX and passport of one Baljit Singh towards south-eastern corner of a brick kiln situated at a distance of about 2 kms. from Matheri Chowk towards Amabla- Pehowa road, which the appellant knows only and could get the Jitender kumar 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -2- same recovered. The statement of appellant Ex. PA was recorded by Risal Singh Inspector of CIA Staff, Ambala. The statement was signed by the appellant and attested by other members of the police party.
3. The appellant then led the police party to the recovery of 11 kgs. of RDX powder and also the passport of Baljit Singh aforesaid from the disclosed place. 1 kg. out of the bulk was separated as sample and these were prepared into sealed parcels with seal bearing impression 'RS' and taken into possession vide memo Ex. PB. Rough site plan of place of recovery Ex. PC was also prepared.
4. On the basis of ruqa Ex. PD sent from the spot this separate FIR Ex. PD/1 was registered. The contents of samples were sent to the Forensic Science Laboratory (FSL), Madhuban alongwith so may other samples through PW-4 HC Mehar Chand. Vide report, Ex. DD of FSL, Madhuban, the material in the parcel was found to be containing RDX, carbon and oil and the same were found to be live explosive.
5. District Magistrate, Ambala accorded Ex. PE, the sanction to prosecute the appellant pertaining to FIR No.88/95 which includes the facts of the present case relating to recovery of 11 kgs. of RDX powder. On commitment of the case, the trial Court framed charges against the appellant for offence under Section 4/5 of Explosive Substances Act, 1908 (for short 'the Act'). Jitender kumar 6. Charges under two heads for offences under Sections 4 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -3- and 5 of the Explosive Substances Act, 1908 (for short referred to as 'the Act') were framed against the appellant. The prosecution examined ten witnesses in supports of its case.
7. The appellant was examined under Section 313 Cr.P.C. and he denied all the incriminating circumstances appearing in the evidence against him. No evidence in defence was led.
8. Learned trial Court convicted the appellant under Section 5(b) of the Act, but was acquitted of the charge under Section 4 of the Act. The appellant was awarded the sentence to undergo rigorous imprisonment for ten years and to pay fine of ` 5000/-, in default to further undergo rigorous imprisonment for one year under Section 5(b) of the Act.
9. I have heard learned counsel for the appellant, the State counsel and have gone through the trial Court record with their able assistance.
10. The prosecution story about interrogation of the appellant while in custody in FIR No.88/95 and making a disclosure statement and consequent recovery as stated above, has been brought forth by PW-2 Risal Singh DSP who was then a Inspector. PW-2 is materially and substantially corroborated by PW-1 ASI Madan Singh who was also posted in CIA Staff, Ambala City during that period.
11. PW-3 HC Pritam Kumar was posted as MHC of Police Station Naggal who stated that the case property comprising of one Jitender kumar parcel of RDX and other parcel of sample bearing seal impression 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -4- 'RS' was deposited with him by ASI Madan Pal. He entrusted the sample to HC Mehar Chand on 29.01.1996 for being deposited in the office of Forensic Science Laboratory, Ambala. This is also supported by PW-4 HC Mehar Chand. The outcome of statements of these witnesses is that the sample remained intact till it was deposited in the office of FSL.
12. PW-5 Kewal Krishan retired inspector was posted as SHO of police station and presented the charge-sheet on completion of investigation. He also recorded the statements of PW-3 and PW-4 under Section 161 Cr.P.C. Even FIR Ex. PD/1 on receipt of ruqa from the investigating officer was recorded by PW-5.
13. PW-6 Satnam Singh, Reader to District Magistrate proved the sanction Ex. PE accorded by the District Magistrate to prosecute the appellant.
14. Being the explosive material, the case property i.e. RDX lying deposited in the police station was destroyed after seeking permission from the Judicial Magistrate. Ex. PW-8/A is the order dated 25.01.1996 passed by the Magistrate on application of the police making a prayer to destroy 78½ kgs. RDX recovered from the appellant. As per order passed by the Magistrate, 7 kgs. of quantity was kept as sample and rest 71½ kgs. was sealed and being highly inflammable material, the same was ordered to be destroyed by FSL experts or Army authorities. This order is proved Jitender kumar by PW-8 Yashpal Kathuria an official in the Sessions Courts, 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -5- Ambala.
15. However, another order Ex. PW-9/1 was passed by the Court of Additional Sessions Judge on 25.09.1996, when it was informed that neither FSL, Madhuban nor Air Force authorities have any expertise to destroy the material. Therefore, an application was filed with a prayer that Chief Controller of Explosives, Sector 22, Chandigarh may be directed to destroy the RDX material and the necessary permission was granted. This order was proved by PW-9 Vinod Salwan, Clerk in the office of Sessions Court, Ambala who brought original order dated 25.09.1996 contained in the record of the trial in FIR No.88/1995.
16. PW-7 Sultan Singh, Commandant First Battalion, Ambala visited the police station alongwith Om Parkash Upadhyay, Deputy Chief Explosives Controller on 27.11.1996 and destroyed the RDX for which permission was already granted by the Courts. Copy of the report of destruction is Ex. PW-7/A.
17. To prove the report Ex. PW-10/1 with regard to examination of certain weapons and the parcels of RDX, the prosecution examined PW-10 Dr. L.A. Kumar, Deputy Director, FSL, Madhuban, Haryana. PW-10 was cross-examined extensively but there is nothing pointed out to challenge the expert opinion. According to the witness, he has examined the firearms and explosive in 10,000 cases so far. It is stated by the witness that RDX is not soluble in water. RDX in itself is an explosive Jitender kumar 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -6- material substance. Pure RDX is found in white colour like sugar crystal. The RDX received was black in colour because it was mixed with carbon and oil. Pure RDX is hardly used. RDX received was homogenous. The witness stated that he never received black coloured RDX in crystal form. Carbon and oil could be used to make the RDX black in colour. In black coloured RDX these two ingredients are mixed in pure RDX only to make a doe like character (doe means semi solid substance in order to give any desired shape). The black colour of explosive examined in this case was because of carbon.
18. PW-10 further stated that an ordinary person can handle RDX substance for the purpose of transportation in the form received in this case. Normally this RDX substance could not be stored in unsafe/insecure place and also not for long. The substance is safe in a storage upto 50 degree and beyond that the witness was not certain. However, in this case the RDX sent for examination were in standard block of about 480 grams each wrapped with brown paper with some description over it indicating they were in all probability were manufactured in standard factory. PW-10 had not found any name or marking over the cake of this RDX sent for examination. By the term unsafe and insecure, the witness meant that it should not be stored in open or without any guard or proper protection. The type of explosive received in this case is very safe because it cannot explode without Jitender kumar detonation which can be done only by using a detonator 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -7- and exploding it with the help of that detonator. It cannot explode due to shifting by hand, jerk or by heat or flame. PW-10 further stated that the small amount of high explosives gives shock wave to the main charge i.e. the explosive received in this case and that this small shock wave is transferred as detonating wave to the explosive which causes explosion and creates shock wave to the tune of about 7500 meter per second to 8650 meter per second causing huge destruction. The explosive is very safe until it is exploded with the help of detonator and if stored properly then it is safe for years.
19. The bone of contention of learned counsel for the appellant is that there was no specific charge framed against the appellant under Section 5(b) of the Act and could not have been convicted for the said offence. The charge precisely against the appellant was that he knowingly kept in his possession and control 11 kgs. of explosive substance namely RDX under such circumstances as to give rise a reasonable suspicion that he did not have it in his possession or under his control for a lawful object and thereby committed an offence punishable under Section 5 of the Act and this is exactly the finding of trial Court. So there is no question of any prejudice having been caused to the appellant when charge against the appellant is specifically under Section 5 of the Act.
20. The conviction of the appellant is basically challenged Jitender kumar on the ground that no attempt was made to join independent 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -8- witness and prosecution story rests only on the testimony of official witnesses.
21. Learned State counsel on the other hand contended that police officials had no enmity against the appellant to implicate him falsely in this case and there is also no possibility of planting such a huge recovery of explosive substance.
22. Since the evidence of the official witnesses is not tainted by the motive and they have also withstood the test of extensive cross-examination, there is no reason to find any flaw in their depositions.
23. Looking into the entire cross-examination of witnesses they are quite consistent on various material factors relating to the recovery. Both the witnesses are consistent in stating that they started interrogating the appellant at 11.00 a.m. and started from police station to the place of recovery at about 01.00 p.m. PW-1 in cross-examination even stated about the registration number of the jeep in which they went to the spot. PW-1 stated that they were free from the spot by about 6.00 p.m. and PW-2 stated that they had returned to police station at 7.00 p.m.
24. The responses given by the witnesses about the location of brick kiln near which the recovery was made would make them quite reliable witnesses. PW-1 stated in cross- examination that the brick kiln was owned by one Darshan Lal. He has also given the location of the properties of adjoining owners. Jitender kumar According to him, on one side of place of recovery there is land of 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -9- Sadhu Ram and on the other side there are fields of Munshi Ram. Sadhu Ram and Munshi Ram had not met them on that day. The witnesses also stated in quite natural manner that the names of aforesaid persons of the adjoining land owners were disclosed to them by the members of public. Those persons met them while they were going for recovery.
25. PW-2 also stated in cross-examination that one servant was present at the tubewell existing at the distance of 2 or 3 acres form the place of recovery. That servant was summoned at the place of recovery and he disclosed the name of owner of brick kiln as Darshan Lal.
26. PW-2, the investigating officer was also questioned about identity of Baljit Singh whose passport was recovered in pursuant to the disclosure statement made by the appellant. He stated that on verification he found the passport of that Baljit Singh as genuine. Baljit Singh aforesaid was also joined in the investigation. That Baljit Singh was working as compounder in a village situated within the jurisdiction of Police Station Mulana, District Ambala.
27. Learned counsel for the appellant could not refer to any much less material discrepancy to bring suspicion to the story of prosecution.
28. The law is quite well settled that unless the official witnesses have any ulterior motive to falsely implicate the accused, Jitender kumar their testimony cannot be discarded simply because the 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh CRA-S-387-SB of 2008 -10- independent witness was not joined. This was particularly so because the appellant was already in custody for about nine days before he made disclosure statement while in custody. Therefore, I do not find any ground to differ with the findings returned by the trial Court.
29. From the above discussion, I find that learned trial Court has appreciated the evidence in the right perspective to come to the finding of guilt against the appellant for offence under Section 5(b) of the Act.
30. On the question of sentence also, the award of ten years of rigorous imprisonment was appropriate sentence in view of heavy quantity of RDX which on explosion could cause huge destruction because of its effect as has appeared in the testimony of PW-10. However, the period of sentence in default of payment of fine of ` 5000/- is reduced from one year to three months of rigorous imprisonment.
31. With the above modification in the sentence the instant appeal is dismissed. July 17, 2014 ( R.P. NAGRATH ) jk JUDGE Jitender kumar 2014.08.02 16:16 I attest to the accuracy and integrity of this document Chandigarh