(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C. against the judgment dated 31.07.2013 passed in S.C.No.78 of 2012 on the file of the Assistant Sessions Judge, Nagapattinam.)
This Criminal Appeal is filed against the judgment dated 31.07.2013 passed in S.C.No.78 of 2012 on the file of the Assistant Sessions Judge, Nagapattinam, in and by which, the appellant/accused was convicted and sentenced as tabulated hereunder:
| Sl.No. | Conviction under Section | Sentence of imprisonment | Fine |
|---|---|---|---|
| 1 | Section 5 of the Explosive Substances Act | ten years rigorous imprisonment | Rs.2,000/-, in default, to undergo six months rigorous imprisonment |
| 2 | Section 6(1-A) of the Indian Wireless Telegraphy Act | one year rigorous imprisonment | Rs.1,000/- , in default, to undergo three months rigorous imprisonment |
The appellant herein is a Srilankan (Tamil speaking). He is residing along with his family in Trichy. He was making out his income by sending Srilankan Nationals to Australia, illegally by boat. On 18.03.2012 at about 7.15 a.m., pursuant to the order of the Superintendent of Police, Q-Branch, while P.W.1 Inspector of Police, Thanjavur was in a routine check-up in ECR Road near Nagapattinamam-Velankanni-Putthur-Four-Road, with officials, he intercepted a Toyota Camry car bearing Registration No.TN-06-A-2700 and enquired the appellant, who was driving the said car. The appellant gave a statement and based on his confession, five numbers of slurry explosives, ten numbers of detonators, six feet fuse wires, one satellite phone, named as Thuraya, which was prohibited in India, were recovered in the presence of P.W.2, namely Seetharaman, Village Administrative Officer and one Rajendran, Village Assistant. After recovering the incriminating materials, P.W.1 submitted Ex.P-2 Special Report to P.W.15 Inspector of Police "Q" Branch, Nagapattinam. The said Ex.P-2 Special Report was reduced into a FIR (Ex.P-10). Thereafter, P.W.15 went to the place of occurrence at about 1 p.m. and prepared Ex.P-4 observation mahazar and drew Ex.P-11 rough sketch. Thereafter, he recorded the statement of witnesses P.W.1 Inspector of Police, P.W.2 VAO, Rajendran-Village Assistant, P.W.3-Nagai-Q-Branch Sub-Inspector of Police, Sub-Inspector of Police Rajaraman, Thanjavur Q-Branch, P.W.4-Head Constable and Q-Branch Head Constable-Veerakumar. Thereafter, P.W.15 came to the Police Station and sent all the recovered materials to the Magistrate Court and also made a request to the Magistrate to keep the recovered explosive substances, in safe custody. As per the order of the Magistrate, the seized/recovered explosive substances were handed over to one Madha Explosives, Pudukkottai District, Vellanoor go-down. Thereafter, with the permission of the Magistrate, by obtaining orders from the Magistrate, P.W.15 made a request to the Deputy Controller of Explosives, Chennai, to conduct a test of the explosive substances. Likewise, P.W.15 sent the recovered satellite phone to Chennai for conducting test. Thereafter, P.W.15 recorded the statement of P.W.7 Sukumar and Velankanni Thangappan on 22.03.2012. Thereafter, with the order of the Magistrate, he sent a communication to the Office of the RTO, Chennai, to find out the details of the vehicle (Toyota Car) seized. On 01.04.2012, P.W.15 has received a reply from the RTO. On 04.04.2012, P.W.15 recorded the statement of P.W.8 Head Constable. On 10.05.2012, P.W.15 received the report of explosives and also the report of the satellite phone, from Court. Thereafter, on 11.05.2012, P.W.15 recorded the statement of P.W.5 Special Sub-Inspector of Police, K.K.Nagar Police Station, Tirchy. Thereafter, he enquired one Pandirdurai, the owner of the above said Madha Explosives. On 13.05.2012, he went to Melur and recorded the statement of one Chinnadaikan, Ramachandran and Gopalakrishnan, with regard to the purchase of explosive substances by the appellant/accused from them. On 16.05.2012, P.W.15 went to Chennai and recorded the statement of one Manimaran, Officer-in-charge of Wireless Explosives. He also examined P.W.10 Shanmugham, who had conducted the test and also enquired P.W.11 Sundarajan, RTO. After completing all formalities and on completion of investigation, P.W.15 filed final report/charge-sheet on 13.08.2012. The case was taken on file in S.C.No.78 of 2012 by the trial Court. During the course of trial, on the side of prosecution, P.Ws.1 to 15 were examined, Exs.P-1 to P-11 were marked and M.Os.1 to 10 were produced. When the appellant/accused was questioned under Section 313 Cr.P.C., he denied his complicity in the crime. He neither examined any witness nor marked any document. Upon hearing the submissions of either side and considering the oral and documentary evidence available on record, the trial Court convicted and sentenced the appellant/accused as tabulated above. Challenging the said judgment of conviction and sentence, the appellant/accused has filed this appeal.
3. Learned counsel appearing for the appellant/accused submitted that initial burden is on the part of the prosecution to prove that the appellant was in possession of explosive substances and only in the event of proving the same, the burden shifts on the shoulder of the appellant/accused to prove that such possession of explosive substances, is lawful. But, in the instant case, the prosecution has not proved by cogent and convincing evidence that the appellant was in possession of explosive substances. In order to substantiate this contention, learned counsel for the appellant submitted that it is the case of the prosecution that on 18.03.2012 at about 7.15 a.m., pursuant to the order of the Superintendent of Police, Q-Branch, while P.W.1 Inspector of Police, Thanjavur was in a routine check-up in ECR Road near Nagapattinamam-Velankanni-Putthur-Four-Road, with officials, he intercepted a Toyota Camry car bearing Registration No.TN-06-A-2700 and enquired the appellant, who was driving the said car and the explosive substances were recovered from him in the presence of Village Administrative Officer P.W.2 Seetharaman and one Rajendran, Village Assistant. In this connection, learned counsel for the appellant/accused contended that it is totally unbelievable that for nearly five hours, P.W.1 was unable to secure any independent witness from the place of recovery of explosive substances from the appellant.
4. Learned counsel for the appellant further contended that it is the further case of the prosecution that the appellant is alleged to have given statement and based on the confession, the explosive substances were recovered, but the recovery of incriminating materials have not been proved by the prosecution. In this regard, learned counsel for the appellant submitted that though it is the case of the prosecution that the material objects/explosive substances, were recovered based on the confession statement of the appellant/accused recorded by P.W.1 in the presence of P.W.2, the said confession statement was not marked before the trial Court and the signature of P.W.2 in the confession statement alone was marked as Ex.P-3, though P.W.2 had spoken about the arrest and recovery of material objects, and therefore, the alleged recovery was not proved by the prosecution by cogent and convincing evidence. Learned counsel further submitted that Ex.P-1 mahazar for recovery/seizure and Ex.P-2 special report alone were marked through P.W.1, which proves that no confession was given voluntarily by the appellant/accused, leading to recovery of any material fact under Section 27 of the Indian Evidence Act, and as such, the recovery/seizure of entire incriminating material objects, has nothing to do with the appellant/accused. Learned counsel further contended that Ex.P-3 is only the signature of P.W.2 in the alleged confession statement of the accused recorded by P.W.1 and as the confession statement is not available on record, as such, there is absolutely no evidence to prove the date, time and place of recovery of M.Os.1 to 6. Learned counsel further submitted that P.W.1 claims to have prepared Ex.P-2 special report by himself, whereas P.W.4 Head Constable claimed that he was the author of Ex.P-2 special report, and therefore, the evidence of P.W.4 does not inspire any confidence to show that he was present on the date of occurrence at the material point of time. Through P.W.2 only, his signature in Ex.P-4 observation mahazar was marked and not the whole observation mahazar. Thus, the recovery was not proved by the prosecution under Section 27 of the Indian Evidence Act, by cogent and convincing evidence.
5. Learned counsel for the appellant further invited the attention of this Court to the evidence of P.W.12 Head Clerk of the Magistrate Court, who has stated in his evidence that the material objects were handed over to the Magistrate Court in Form 95, and thereafter, as per the order passed by the Magistrate, the M.Os. were handed over to Police for safe custody. Thereafter, as per the request of the Inspector of Police, the cell phones were sent to Chennai for conducting test. He had also stated that as per the request of the Inspector of Police, the explosive substances were sent for conducting test. But, none of those documents, namely Form-95 or the said requisition letters or the said orders passed by the Magistrate, were marked through P.W.1 or P.W.15. Hence, non-marking of these documents would vitiate the entire trial proceedings, and as such, recovery / seizure of the entire materials were not proved under Section 27 of the Indian Evidence Act.
6. Learned counsel for the appellant also drew the attention of this Court to the evidence of P.W.6, the owner of Madha Explosives and submitted that in his evidence, P.W.6 stated that he has received 5 Kgs. of explosive substances (bto kUe;J). According to the prosecution, what was recovered is only five slurry substances. Therefore, what was tested by P.W.10 is not slurry substance said to have been recovered from the vehicle of the appellant, and therefore, the appellant is entitled for the benefit of doubt.
7. Further, learned counsel for the appellant invited the attention of this Court to the evidence of P.W.10, who is the Controller of Explosives, working in the Head Office in Chennai. As per the requisition letter of the Magistrate, P.W.10 examined the explosive substances on 29.03.2012 and issued Ex.P-7 report, dated 27.04.2012, but the fact remains that he is not an expert as contemplated under Section 45 of the Indian Evidence Act. In his report Ex.P-7, P.W.10 has stated that he went to the go-down of Madha Explosives (where the explosive substances were stored with the custody of P.W.6 owner of Madha Explosives). In his Ex.P-7 report, P.W.10 has further stated that the unsealed packets were handed over to him by P.W.13 C.Elango, Sub-Inspector of Police, Q-Branch, received unsealed packets from P.W.3 Therefore, it is clear that the packet containing explosive substances were not sealed. Hence, learned counsel for the appellant submitted that the fact that at the time of handing over the explosive substances for conducting test, the packets were unsealed, coupled with the further fact that the packets contained only 5 Kgs. of explosive substances as per the evidence of P.W.6 and not five slurry explosives, would give rise to a grave doubt as to whether the test was conducted by P.W.10 with regard to the five slurry explosives, which were said to have been seized from the vehicle of the appellant on 18.03.2012. Further, learned counsel submitted that though in chief-examination, P.W.6 has stated that he is the owner of Madha Explosives by indicating that he has a shop in the name of Madha Explosives, in his cross-examination, he has stated that he is working in Madha Explosives and further, he had specifically stated that he is not the owner. The contradiction in the evidence of P.W.6 would show that his evidence cannot be relied upon.
8. Learned counsel for the appellant further invited the attention of this Court to G.O.Ms.No.1101, Home Department, dated 30.05.1990 and submitted that as per the said G.O., the Director of Forensic Sciences had brought to the notice of the Government that the Chemistry Division of the Forensic Sciences Department is examining exploded materials, explosive residues, etc., for identifying the explosive substances in the case of explosions. Since the normal work of Chemistry Division itself is heavy and the examination of explosive residues would increase the work load of the Division and hence, in the said G.O., the Government has ordered for formation of one Explosive Section in the Chemistry Division. Learned counsel further submitted that subsequently, the Government of Tamil Nadu issued G.O.Ms.No.826, Home (Police-XVI) Department dated 20.07.1994, stating that the Director-in-charge of the Department of Forensic Sciences has stated that the Explosive Division of the Forensic Sciences Laboratory at Madras undertakes Chemical Examination of exploded materials and explosive substances for the purpose of identifying the explosive substances used in bombs and initiating device used for detonating the explosives, in addition to analysis of explosive materials seized under the Explosive Substances Act and that the explosive cases are challenging and highly sensational demanding quick analysis of the exploded articles sent for examination, and therefore, as per the request made therein, the Government sanctioned the full-fledged Explosive Division in the main Laboratory at Madras in the Forensic Sciences Department. In this regard, learned counsel submitted that the alleged seizure of the explosive substances were not despatched to the Forensic Sciences Laboratory for chemical examination to prove that there is explosive material in the same, whereas, it was decided and examined only by P.W.10 Controller of Explosives, who is not the competent authority. In this regard, learned counsel for the appellant relied on a decision of the Supreme Court in Abdula Pochamma Vs. State of A.P (1990 SCC (Cri) 36), and in that case, the Supreme Court observed that the alleged hand-grenade was not sent to any expert to find out whether, it was, in fact, a hand-grenade or an explosive substance and hence, the Apex Court held that the conviction based on a non-expert evidence of Sub-Inspector of Police is not sustainable and gave the benefit of doubt to the accused therein.
9. Further, learned counsel for the appellant submitted that the important witness P.W.10 Shanmugam, Controller of Explosives, who has tested the material objects, did not state in his evidence that he was having requisite knowledge of the explosives and that he had competency to test the explosive substances. In fact, service of an expert was not even sought for to examine the materials routed through the explosives authority. In this regard, learned counsel relied on the judgment of the Punjab and Haryana High Court reported in 2001 Cri.L.J. 3715 = MANU/PH/1084/2001 (Major Singh Vs. State of Punjab), wherein, it has been held that in respect of the recovered articles stated therein, there was no expert evidence on record to show that the recovered articles would bring the case within the purview of the Explosive Substances Act and that nothing has come on the record to show that the sample of explosives therein was found by any expert to be explosive substance covered under the provisions of the Explosive Substances Act.
10. In the above context, learned counsel for the appellant also relied on a decision of the Supreme Court reported in MANU/SC/1029/2010 (Abubucker Siqqique and another Vs. The State rep. by the Deputy Superintendent of Police, CBI/SCB/Chennai, Tamil Nadu and The State rep. by DSP, CBI, Chennai Vs. M.P.Rafiq Ahamed and others), in which the confession statement of the accused shows that what was procured by them was only gelatin sticks and not RDX and in that case, it was not established by the prosecution as to what are the actual materials used in the bomb-blast and hence, the Apex Court set aside the conviction and sentence imposed on the accused therein. Hence, according to the learned counsel for the appellant, the importance of obtaining expert opinion from a qualified expert to find out the materials recovered from the possession of the appellant, is to ascertain as to what sort of explosives were actually recovered from the appellant/accused. For all the above reasons, learned counsel for the appellant/accused prayed for allowing the appeal.
11. Countering the above submissions, learned Public Prosecutor appearing for the respondent-Police submitted that it is incorrect to state that the explosive substances are not properly marked in this case. In this regard, he invited the attention of this Court to the material objects (explosive substances) marked and submitted that the respective material objects are marked as M.O.8 five slurry explosives, M.O.9 ordinary detonator, M.O.10 green colour bomb thread. No doubt, there is no reference in the evidence of P.W.1 or P.W.15 investigating officer with regard to the marking of material objects, but the list of M.Os. given in the impugned judgment of the trial Court, would show that the material objects were produced before the Court through P.W.15 investigating officer. The material objects were marked after their defuse.
12. Learned Public Prosecutor further submitted that the submission of the learned counsel for the appellant that Section 27 of the Indian Evidence Act has not been followed, since the admissible portion of the confession statement of the accused was not marked through P.W.2 VAO, is not legally sustainable, because, in the instance case, the vehicle of the accused was intercepted and based on the confession of the accused, the explosive substances were seized from the dickey of the vehicle and since it is spot recovery, there is no question of applying Section 27 of the Indian Evidence Act. Therefore, non-marking of the confession statement of the accused, will not vitiate the proceedings, because, the prosecution has already proved that the explosive substances were in possession of the accused.
13. Learned Public Prosecutor submitted that Rule 128(3) of the Explosives Rules, had been duly followed in this case and Rule 128(3) states that whenever any explosives are seized, they shall be stored up in an isolated place under adequate guard until examination by the Chief Controller or Controller and receipt of instructions from him as to their disposal. With regard to the G.Os. relied on by the learned counsel for the appellant/accused, learned Public Prosecutor submitted that the said G.Os. are only recommendatory and not mandatory. Learned Public Prosecutor also invited the attention of this Court to Section 293(4) of Cr.P.C. and submitted that the Controller of Explosives is the competent person to test the explosives. Thus, learned Public Prosecutor submitted that the prosecution has proved the possession of explosives with the appellant, by cogent and convincing evidence.
14. With regard to the unsealing of the packet of explosive substances, learned Public Prosecutor submitted that sealing of explosives is not necessary, since they are explosive substances and if the seizing officer is not an expert under the Explosive Substances Act and if he affixes the seal on a packet which contains explosive substances, there is every possibility that it might explode. In the instant case, all the explosives were put in polythene bag and tied with twine thread, which is evident from Ex.P-7 report. Hence, the contradictions pointed out by the learned counsel for the appellant, are all only minor contradictions, which will not affect the root of the prosecution case. For all the above reasons, learned Public Prosecutor prayed for dismissing the appeal.
15. Keeping in mind the above submissions made on either side, I have carefully considered the same and perused the materials available on record.
16. At the outset, it is submitted by the learned counsel for the appellant/accused that the mahazar for recovery in Ex.P-1 and Ex.P-2 report alone were marked through P.W.1, which amply proves that no confession was given voluntarily by the appellant/accused, leading to any recovery of material fact under Section 27 of the Indian Evidence Act, and as such, recovery/seizure of entire incriminating materials has nothing to do with the appellant. It is further submitted that Ex.P-3 is only the signature of P.W.2 VAO and hence, as such, the confession statement of the appellant is not available on record. Therefore, there is no evidence to prove the date and time of the alleged recovery of explosive substances from the vehicle of the appellant and the preparation of Exs.P-1 and P-2.
17. The above submission of the learned counsel for the appellant cannot be accepted for the reason that the vehicle of the appellant/accused was intercepted on information, by P.W.1 Inspector of Police of Q-Branch, and this fact was spoken to by P.Ws.1, 2 and 3. Further, appellant/accused was questioned and his car was searched and from the dickey of the car, the explosive substances mentioned in Ex.P-1 were seized.
18. In the above context, it is worthwhile to notice that Section 27 of the Indian Evidence Act speaks about the recovery, which reads as follows:
"Section 27: How much of information received from accused may be proved--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Thus, Section 27 of the Indian Evidence Act speaks about the recovery pursuant to the confession made by the accused. In the instant case, all the explosive substances were seized in the spot itself (i.e.) from the car dickey. Therefore, applicability of Section 27 does not arise in this case, especially in the facts and circumstances when secret information with regard to the transport of explosive substances, was received by the Police.
19. It is another submission of the learned counsel for the appellant that the material objects seized were not proved by P.W.1, who has seized explosive substances. But, a perusal of Ex.P-7 report submitted by P.W.10 shows the details of material objects seized, and the relevant portion of Ex.P-7 report reads as follows:
"During examination 1/4 portion of an emulsion cartridge (Sr.No.1), one detonator (Sr.No.2) and 40 cm length of safety fuse (Sr.No.3) were consumed. Remaining explosives were returned back to Shri Ilango, Sub-Inspector for safe custody at the explosives magazine."
Therefore, the material objects were marked through P.Ws.15 investigating officer, who had examined P.W.1, seizing officer. Therefore, the submission of the learned counsel for the appellant that the possession was not proved, is not sustainable. In my considered opinion, the possession of explosive substances, was proved with cogent and convincing evidence.
20. It is further submitted by learned counsel for the appellant that Form-95, through which requisition was sent to the Magistrate and the order of the Magistrate, with regard to sending the explosive substances for test, were not marked, which would vitiate the proceedings. In my considered view, marking of these documents will not vitiate the prosecution case, when the prosecution has proved that the explosive substances were actually in the possession of the appellant/accused.
21. It is yet another submission of the learned counsel for the appellant that the packets of the explosive substance, as per the evidence of P.W.10, were handed over to him by P.W.3, who brought the packets containing explosive substances and they were handed over to P.W.10 for conducting test. According to the learned counsel for the appellant, since the packets were not sealed, there is a chance for tampering with the same. In my considered opinion, unlike some special Acts, like NDPS Act, Prevention of Food Adulteration Act, Drugs and Cosmetics Act, etc., the Explosives Substances Act does not contemplate putting seal on the cover/packets in which the explosive substances are kept. Further, as contended by the learned Public Prosecutor, if the seizing officer, who is not an expert under the Explosive Substances Act, affixes a seal on a packet which contains explosive substances, there is every possibility that it might explode. Therefore, I am of the opinion that this is the reason why the Explosives Substances Act or the Explosives Rules, does not prescribe any Rule regarding putting of seal on the seized materials. However, on a perusal of Ex.P-7 report, it is seen that the explosive substances were put in packets which are tied with twine thread. Therefore, absolutely there is no possibility of any tampering of explosive substance.
22. Learned counsel for the appellant/accused further submitted that P.W.6 in his evidence, has stated that Q-Branch Police, as per the order of the Magistrate, handed over to him 5 Kgs. of explosive substances, for safe custody and hence, according to the learned counsel, it is not 5 slurry explosive substances handed over to the Police which were said to have been recovered from the appellant. Therefore, according to the learned counsel for the appellant, what was tested is some other explosive substance. But this submission of the learned counsel for the appellant is not sustainable, because, in Ex.P-7 report, it has been clearly stated by P.W.10 that he has received the respective explosives in packets for testing. Further, it is clear that P.W.10 in his chief examination has stated that in colloquial form about 5 slurry explosive substances as explosive substance (bto kUe;J) and this minor contradiction does not attach any importance to a great extent to drive home the case of the prosecution. Moreover, this Court is of the view that the said minor contradiction will not vitiate the entire case of the prosecution and it can, at the most be termed only as an insignificant error, unless the contradictions or infirmities found in the evidence raise great suspicion in the mind of the Court, coupled with the fact that in the case on hand, there are no material contradictions in the evidence of the witnesses or documents marked and the said minor contradiction has not affected the genesis of the case of the prosecution in its entirety, and hence, no credence could be shown on the same, thereby, this Court comes to an irresistible conclusion that the prosecution has proved its case beyond reasonable doubt.
23. With regard to the contention of the learned counsel for the appellant that P.W.10 is not an expert to test the explosive substances, and in this regard, learned counsel also relied on two G.Os., in G.O.Ms.No.1101 and G.O.Ms.No.826, as stated above. But, on a perusal of G.Os. themselves, it is seen that the Chemistry Division of the Forensic Sciences Department will have to test the explosive substances only after explosion of the explosive substances and identify the same and the explosive residue left behind after explosion and before that stage, they have no duty to find out the substance of the explosion or the residue. But, in the instant case, the seized materials are slurry explosives, detonators, etc., and there was no explosion, and therefore, the said G.Os. cannot be made applicable to the facts of this case. Hence, it is incorrect to state that as per the G.Os., the prosecution ought to have sent the explosive substances to the concerned Forensic Sciences Laboratory.
24. In the above context, it is appropriate to extract Rule 128(3) of the Explosives Rules and Section 293(4) Cr.P.C., which reads as follows:
"Rule 128:Powers of search and seizure:
.. ...
(3) Whenever any explosives are seized they shall be stored up in a isolated place under adequate guard until examination by the Chief Controller or Controller and receipt of instructions from him as to their disposal."
"Section 293 Cr.P.C: Reports of certain Government scientific experts:
... ...
(4) This Section applies to the following Government scientific experts, namely:--
(a) ...
(b) the Chief Controller of Explosives;
...."
In the instant case, from the evidence available on record, it is clear that P.W.10 who is the Controller of Explosives, working in the office of the Chief Controller of Explosives, is the competent person to examine the seized materials as per above Rule 128(3) of the Explosives Rules and Section 293(4) Cr.P.C.
25. In the above view taken by this Court, it is not necessary to dwell into the decisions relied on by the learned counsel for the appellant, as the same are distinguishable on facts.
26. Therefore, on the whole, I find that the prosecution has proved its case by cogent and convincing evidence and that the appellant was in possession of the explosive substances. The appellant has not proved to show that the possession of explosive substances, is lawful, either by adducing evidence or bringing out any favourable reply in the cross-examination of the witnesses. Hence, there is no reason warranting interference in the impugned judgment of conviction and sentence passed against the appellant, by the trial Court.
27. Hence, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed, confirming the conviction and sentence imposed on the appellant/accused by the trial Court.