THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CRIMINAL APPEAL No.652 of 2010
04-07-2011
Mohd. Ishaq, Son.Mohd. Yousuf Ali, Malakpet,Hyderabad.
Inspector of Police, P.S.,Osmania University and another
Counsel for the Appellants:Sri G.Rama Sarma
Counsel for the Respondents No.1 &2 : Public Prosecutor
:JUDGMENT:
The appellant/A5 was charged with offence punishable under Section 9-B of the
Explosives Act in S.C.No.273 of 2009 before the II Additional Metropolitan
Sessions Judge, Hyderabad. The lower Court while acquitting the appellant/A5 of
the said charge, ordered confiscation of MO.1 Van along with explosive
substances covered by Ex.P5, to the State. Though A5 filed this appeal against
the said order of confiscation of the Van as well as explosive substances, the
appellant's counsel fairly submitted that he is confining his argument in this
appeal only in respect of confiscation of MO.1 Van.
2. A5 is owner of MO.1 Van and licenced dealer of explosives under the
Explosives Act, 1884. It is alleged that A5 illegally supplied the explosive
material to A1, A3 and A4 who are unauthorized persons and that A2 is associate
of A1. With the said allegations, charges were framed by the lower Court
against A1 to A4 for offence punishable under Section 5 of the Explosive
Substances Act and against A5 for offence punishable under Section 9-B of the
Explosives Act. After full-fledged trial, the lower Court passed the impugned
judgment dated 01.02.2010 recording acquittal of A1 to A5 of all the charges.
While passing the said order of acquittal, the lower Court added rider of
confiscation of MO.1 also to the State.
3. In my opinion, detailed scrutiny of reasons given by the lower Court
for recording acquittal against A1 to A5 may not be relevant in this appeal,
where scope before this Court is limited to confiscation of MO.1 Van bearing
No.AP29 T 8435. It is sufficient to note that order of confiscation of MO.1 Van
by the lower Court is contrary to language employed in Section 10 of the
Explosives Act, 1884. Section 10 of the said Act reads as follows:
"10. Forfeiture of Explosives: When a person is convicted of an offence
punishable under this Act, or the rules made under this Act, the Court before
which he is convicted may direct that the explosive, or ingredient of the
explosive, or the substance (if any) in respect of which the offence has been
committed, or any part of that explosive, ingredient or substance shall with the
receptacles containing the same, be forfeited."
4. The lower Court in the impugned judgment did not state under what
provision of law confiscation of MO.1 was ordered. The only provision under
which confiscation/forfeiture can be ordered out of the provisions of both the
enactments is Section 10 of the Explosives Act. The Court is entitled to invoke
Section 10 of the said Act, only in case a person is convicted of an offence
punishable under that Act. In the absence of recording conviction of any person
under the said Act, the lower Court should not have invoked Section 10 for
ordering forfeiture of MO.1 motor vehicle. Conviction under the said is a pre-
condition for resorting to Section 10 thereof. The only accused out of A1 to A5
who was charged with an offence under the Explosives Act, 1884 was A5 in this
case and after trial, A5 was acquitted of the said offence by the lower Court.
Therefore, forfeiture of MO.1 Van in this case by the lower Court is contrary to
law and without jurisdiction.
5. In the result, the Criminal Appeal is partly allowed setting aside that
portion of judgment of the lower Court relating to confiscation of MO.1 Van and
directing the complainant/Inspector of Police, Osmania University Police
Station, to return MO.1 Van to A5.
