1 2025:CGHC:60263 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 73 of 2020 State Of Chhattisgarh Through The District Magistrate, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh ... Appellant versus 1- Dharampal Nayak S/o Anantram Nayak Aged About 40 Years R/o Village Jhanakpkur, Police Station Baramkela, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh 2 - Shyam Sagar Chouhan S/o Ghurau Ram Chouhan Aged About 26 Years R/o Village Jhanakpkur, Police Station Baramkela, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh 3 - Ramesh Nishad S/o Narad Nishad Aged About 26 Years R/o Village Jhanakpkur, Police Station Baramkela, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh 4 - Amritdas Mahant S/o Chamrudas Mahant Aged About 46 Years R/o Village Timarlaga, Police Station Sarangarh, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh ... Respondents {Cause title, as taken from Case Information System} For Appellant : Mr. Sanjeev Pandey, Dy. Adv. General with Mrs. Prabha Sharma, Panel Lawyer. For Respondents : Mr. Roop Ram Naik, Advocate (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) Order on Board 10/12/2025 1. This acquittal appeal has been preferred by the appellant/State challenging the judgment of acquittal dated 28th September, 2016 passed by Upper Sessions Judge, Sarangarh, District Raigarh (C.G.) in Special Case 2 No. 08 / 2016 whereby respondents/accused persons have been acquitted of the charges under Sections 4 (b) & 5 of The Explosive Substances Act, 1908.. 2. Case of the prosecution, in brief, is that on 08.12.2015, Assistant Sub Inspector – K.S. Bal (PW-7) alongwith accompanying police personnel while patrolling at villages, received information to the effect that respondents/accused persons are transporting explosive substance in Weg nor car bearing registration No. CG -13-U.G./6834 (for short, “offending vehicle”) from Odisha for selling it illegally in Stone Mines at Raigarh, therefore, they cordoned off at village Timarlaga – Hichha Road, Thana Sarangarh, District Raigarh, when aforesaid vehicle reached there, it was stopped, in which all four respondents/accused persons were found sitting. A search of the vehicle revealed explosive substance. Thereafter, search panchnama (Ex.P-2) was prepared. Notice under Section 91 of IPC (Ex.P-1) was served to the respondents regarding possession of explosive substance. As accused persons did not produce any valid documents to transport explosive substance, offending vehicle and bag kept in the said vehicle, a plastic bag in which 19 electronic detonators were kept in bundle, each containing 25 pieces, connected with red coloured electric wire, total 475 pieces of detonators, 5 bundles of green colour gunpowder kept in a plastic bag, 01 bundle of green colour gunpowder kept in a plastic bag, 50 kgs. each of ammonium nitrate kept in two bags, gel gunpowder packets kept in three plastic bags, packed in plastic foil, each packet weighing 125-125 grams, total 500 pieces with KELVEX written in English were seized from the possession of respondent in presence of witnesses vide seizure memo (Ex.P-3). On the spot itself, Dehati Nalishi No. 0/15 (Ex.P-14) under Sections 4(b) and 5 of the Explosive Substances Act, 1908 was registered against the accused persons and on 3 reaching Police Station Sarangarh, FIR (Ex.P-15) was lodged against the respondents/accused under Section 4(b) & 5 of the Explosive Substances Act, 1908 and the matter was taken into investigation 3. During investigation, spot map (Ex.P-13) was prepared by the Police. Applications were written to the Judicial Magistrate First Class, Sarangarh and the Superintendent of Police, Raigarh for permission to deactivate the seized live detonators vide Ex.P-16 & Ex.P-17, respectively. Subsequently, the office of Superintendent of Police, Raigarh sent a letter to the Assistant General of Police, Intelligence (Special Branch), Police Headquarter regarding deactivation of the live detonator, thereafter, the seized explosive substance was deactivated by the Bomb Disposal Squad, Special Branch, Police Headquarter, Raipur vide Destruction Panchnama (Ex.P-12) and disposal application (Ex.P-18) was received. Testing & destruction report (Ex.P-11) of seized explosive substance was received from Bomb Disposal Squad, Special Branch, Police Headquarters, Raipur. Gelatin rods, ammonium nitrate in a plastic container, soil after the explosion of safety fuse, soil before the explosion of the explosive substance in a sealed plastic container, soil from the explosion site after the detonator exploded in a plastic container, soil before the detonator exploded in a plastic container, and approximately 50 gms. of gelatin sample in a plastic container were seized vide seizure memo Ex.P-10. Respondents were arrested and seized samples marked as ‘A’, ‘B’, ‘C’, ‘D’ & ‘E’ of seized explosive substance were sent to FSL, Raipur, to which vide its report Ex. 28, the FSL reported that samples “A” to “E” are Explosive substances i.e. Ammonium nitrate, led azide, and there is possibility of human injury due to the explosion of explosive substance present in samples “A” and “C” and “E”. 4 4. After completion of usual investigation, a charge-sheet was filed against the respondents / accused before learned Judicial Magistrate First Class, Sarangarh for the offence under Section 4 (b) & 5 of the Explosive Substances Act, 1908, who committed that case to the Court of Sessions, thereafter, the case was tried by the Upper Sessions Judge, Sarangarh, District Raigarh. 5. Learned Upper Sessions Judge, Sarangarh, District Raigarh framed charges against the respondents/accused for the offence under Section 4 (b) & 5 of the Explosive Substances Act, 1908, who abjured their guilt and entered into trial. 6. In order to establish the charges against the respondents/ accused persons, the prosecution examined as many as 7 witnesses and exhibited 28 documents. Statement of the respondents/accused persons under Section 313 of the Cr.P.C. were also recorded, in which they denied all the incriminating circumstances appearing against them in the prosecution evidence claiming themselves to be innocent and false implication. Respondents have produced the police statement of Bhavani Shankar Dhangad (who is also examined as PW-5) as Ex.D-1 in his defence. 7. After considering evidence adduced by both the parties, learned upper Sessions Judge, Sarangarh, District Raigarh acquitted the respondents/accused of the alleged charges, which has been assailed by the appellant/State by filing instant acquittal appeal. 8. Learned counsel appearing for the appellant / State submits that huge quantity of explosive substance was seized from Wegnor Car bearing registration No. CG – 13 – UG/6834, owned by respondent 1/accused persons, 5 in which, respondent No.1 along with resopndents No. 2 to 4 were transporting said explosive substance. He submits that the aforesaid explosive substance was seized by Investigating Officer of the case / Assistant Sub Inspector – K.S. Bal (PW-7) in presence of Usatram Lohar (PW-1) and Shambhu Lal (PW-2), who are independent witnesses, though they have turned hostile and not supported the case of prosecution, but accompanying police personnel i.e. Constable - Bhavani Shankar (PW-3), Head Constable - Jayram Sidar (PW-4) and Head Constable Ramdas Kurre (PW-6) have supported the deposition of ASI- K.S. Bal (PW-7) that alleged explosive substance was seized from possession respondent No. 1/accused – Dharampal Nayak from the said car, in which, other respondents/accused were also sitting, despite that learned Upper Sessions Judge has not relied upon the deposition of aforesaid witnesses, which is perverse and contrary to the evidence available on record. He further submits that ASI – K.S. Bal (PW-7) has investigated the case as per direction of Senior Officer and sanction for prosecution was also obtained from District Magistrate, Raigarh vide sanction letter letter 29th December, 2015 (Ex.P-23), which has also been exhibited by ASI K.S. Bal (PW-7), who is Investigating Officer of the case, hence, learned Upper Sessions Judge ought not have held that the sanction was not proved. As such, he prays that impugned judgment of acquittal may be set aside and respondents / accused persons may be convicted for the said charges / offences. 9. Per contra, learned counsel for the respondents / accused would support the impugned judgment and submit that impugned judgment is well reasoned judgment, which does not call for any interference of this Court, hence, the appeal is liable to be dismissed. 6 10. I have heard learned counsel for the parties and perused the material available on record including record of the trial Court with utmost circumspection. 11. Usatram Lohar (PW-1) and Shambhu Lal (PW-2) are said to be independent witnesses of seizure of alleged explosive substance, to which seizure memo (Ex.P-3) was prepared by ASI K.S. Bal (PW-7), who has supported aforesaid seizure. But since independent witnesses have not supported the seizure of said explosive substance, though accompanying police personnel i.e. Head Constable - Bhavani Shankar (PW-3), Head Constable -Jayram have Sidar (PW-4) have supported have supported seizure of said explosive substances. 12. Even otherwise for the sake of argument, if seizure is found proved, despite that case of prosecution suffers from grave illegality, as investigation of instant case has been done by Assistant Sub Inspector – K.S. Bal (PW-7), who is not competent authority to investigate the instant case in view of the provisions contained in Rule 128 (1) of the Explosive Rules, 2008, which reads thus :- “128. Powers of search and seizure.—(1) Any authority specified in column (1) of the Table below may within the jurisdiction specified in the corresponding entryin column (2) of that Table— (a) enter, inspect and examine any place, aircraft,train, carriage, vessel or any mode of transport in which an explosive is being manufactured, possessed, used, sold, transported, exported or imported under a licence granted under these rules, or in which he has reason to believe that 7 an explosive has been or is being manufactured, possessed, used, sold, transported, exported or imported in contravention of the Act or these rules; (b) search for explosives or ingredients thereof; (c) take samples of any explosive or ingredients found therein on payment of the value thereof, if such payment is demanded at the time of the sample are taken; (d) seize, detain and remove any explosive or ingredients thereof found therein together with connected documents thereof in respect of which he has reason to believe that any of the provisions of the Act or these rules have been contravened. TABLE --------------------------------------------------------------------------------------- Authority Jurisdiction --------------------------------------------------------------------------------------- The Chief Controller or Controller All parts of India All District Magistrates Their respective jurisdiction All Executive Magistrates Their respective jurisdiction subordinate to the District Magistrate All Commissioners of Police Their respective jurisdiction or Police Officers of rank not below that of a Sub-Inspector of Police The Director General of Their respective jurisdiction Mines or officers subordinate to him --------------------------------------------------------------------------------------- 13. Upon bare perusal of aforesaid provision, it is abundantly clear that power of search and seizure of police department has been provided to all the Commissioners of Police or Police officers of rank not below that of a Sub- Inspector of Police. Assistant Sub Inspector has not been provided such power under the Explosive Rules, 2008, but investigation of instant case has been 8 carried out by Assistant Sub Inspector – K. S. Bal (PW-7), who was not competent to investigate the case. Further, Section 7 of the Explosive Substances Act, 1908 provides that for trial of any person for an offence against this Act, consent of District Magistrate is necessary. For brevity, Section 7 of The Explosive Substances Act, 1908 is reproduced below:- “7. Restriction on trial of offences.- No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate.” 14. In the instant case, Ex.P-23 is said to be sanction letter of District Magistrate, Raigarh, which has been exhibited by ASI- K.S. Bal (PW-7), but only marking document is not sufficient to hold prove the contents of documents, rather to prove the document, it ought to have been proved by examining author of the document or if the sanction is issued by the authority, then it ought to have been proved by calling necessary note-sheets pertaining to passing sanction order by calling original record of note sheet, as has been provided in Sections 64 & 67 of the Evidence Act. But, in instant case, neither District Magistrate, Raigarh has been examined nor sanction letter dated 29th December, 2015 (Ex.P- 23) has been proved by calling original record of the office of District Magistrate, Raigarh, therefore, mere marking on the document by ASI K.S. Bal (PW-7) is not sufficient to prove the sanction letter Ex.P-23. Hence, learned Upper Sessions Judge has not committed any illegality in holding that consent of District Magistrate, Raigarh for trial of instant case or to file charge-sheet of instant case has not been proved in accordance with law. 15. In view of the foregoing discussion, I am of the view that there is no illegality or infirmity in the judgment of acquittal passed by the trial Court, which is a plausible one therefore, no interference is required to be made with the findings recorded by the said Court. 9 16. In the result, acquittal appeal fails and is hereby dismissed. No cost (s). 17. Record of the Courts below be sent back forthwith along with a copy of this order for compliance and needful. Sd/- (Naresh Kumar Chandravanshi) Judge AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.12.17 17:44:48 +0530