APHC010154512009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3368] WEDNESDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI CRIMINAL APPEAL NO: 524/2009 Between: 1. GONUGUNTLA RAMESH,, S/O. RAMAIAH, KOTHAKOTA VILLAGE OF GIDDALUR MANDAL, PRAKASAM DISTRICT. ...APELLANT AND 1. THE STATE OF A P REP BY PP, rep.by Public Prosecutor, High Court of A.P., Hyderabad. ...RESPODENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to present this Memorandum of Criminal Appeal aggrievedby the Judgment passed in SC.No.330 of 2008 on the file of the Courty of the Sessions Prakasam Division, Ongole dated 07.04.2009 in convicting the appellant Under Section 50 of Explosive substance Act covered by charge framed and is convicted of the same under Section 235 (2) of Cr.P.C. 2 IA NO: 1 OF 2009(CRLAMP 1074 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner on bail by suspending the execution of sentence passed in SC.No.330 of 2008 on the file of the Courty of the Sessions Prakasam Division, Ongole dated 07.04.2009 pending disposal of the Crl.Appeal Counsel for the Appellant: 1. P NAGENDRA REDDY Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following Judgment: This Criminal Appeal is filed under Section 374(2) of the Criminal Procedure Code (for brevity “Cr.P.C.”), challenging the judgment dated 07.04.2009 passed in S.C.No.330 of 2008 on the file of the Sessions Court at Ongole. 2. The appellant/convict was convicted for the offence punishable under Section 5 of the Explosive Substances Act, 1908, and sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs.100/-, in default, to suffer simple imprisonment for one month. 3. The case of the prosecution, in brief, is that: 3 (a) It is the case of the prosecution that on 17.10.2005 at about 5.00 p.m., PW2-Assistant Sub-Inspector of Police received credible information about illegal possession of explosive substances near the west of Diguvametta Village. Immediately, PW2 along with PW1-Police Constable accompanied by Probation Sub-Inspector of Police-L.W.2, proceeded to the place. At about 5.30 p.m., they reached the place of arrest and noticed the accused carrying a plastic bag. They enquired with the accused about the contents of the bag. They searched the bag and found 20 gelatin sticks. PW2 seized the contraband and arrested the accused under the cover of Ex.P1 proceedings, prepared at the place of arrest. PW2 returned to the police station and registered a case in Crime No.132 of 2005 for the offence punishable under Section 5 of the Explosive Substances Act, 1908, vide Ex.P2-FIR. The original Ex.P2 was submitted to the Court. (b) Later, the gelatin sticks were defused on 21.11.2005 with the assistance of Head Constable vide Ex.P3, while submitting a small quantity to the FSL, Hyderabad, for chemical examination. The Analyst issued Ex.P4, opining that the sample contained ammonium nitrate and nitroglycerin, which is explosive 4 and dangerous to human life. Later, the Sub-Inspector of Police- PW3, made an application to the District Magistrate and Collector, Prakasam District at Ongole, for sanction to prosecute the accused. The Collector and the District Magistrate issued Ex.P5-prosecution order, dated 26.05.2006, according permission to prosecute the accused for the offence punishable under Section 5 of the Explosive Substances Act, 1908. On completion of the investigation, PW4 and another Sub-Inspector of Police laid charge sheet before the Court. 4. During the trial, PWs 1 to 4 were examined and Exs.P1 to P5 and C1, apart from MO1, were marked for the prosecution. No evidence was adduced for the accused. 5. The trial Court, on consideration of the evidence on record, found the accused guilty for the offence punishable under Section 5 of the Explosive Substances Act, 1908. Accordingly, the accused was convicted and sentenced to suffer imprisonment as mentioned above. Therefore, the appeal came to be preferred by the accused, challenging the judgment of the trial Court on various grounds. 5 6. Learned counsel for the appellant argued that undisputedly, criminal law was set into motion on the basis of prior information received by PW2 at about 5:00 p.m. on that day. The police station is located in the midst of the town. The police officials proceeded to the place of arrest located at a distance of about 17 kms through the town and several villages and reached the alleged place of arrest. The evidence on record would disclose that PW2 did not make any attempt to secure independent witnesses like village servants or private citizens on the way to the place of arrest to assist the police in the proceedings to be conducted under Ex.P1. 7. The evidence on record also does not disclose any reason, much less tenable reason, as to why PW2 did not make any attempt to secure independent witnesses on the way to the place of arrest. There is no material on record to show that he made attempts to secure independent witnesses on the way to the place of arrest. No one came forward to assist him, and therefore he conducted proceedings under Ex.P1 with police staff only. Though this aspect has been argued at length, the learned trial Court did not consider the evidence on record about this aspect, except stating that the evidence of police officials cannot be 6 discarded on the ground that no independent witnesses were examined to corroborate the testimony of the police officials and that nothing was elicited in the cross-examination of witnesses to discredit their testimony. 8. He would submit that witnesses were cross-examined at length regarding the circumstances relating to securing the independent witnesses, but the police officials did not give any reason for non-securing the independent witnesses, though alleged arrest happened during day time, and there is every possibility for securing the assistance of independent witnesses on the way to the place of arrest. Therefore, in the absence of a plausible explanation from the police officials in that regard, the trial Court ought to have doubted the veracity of the evidence of the police officials, but no reason was assigned by the trial Court on that material aspect. Further, the judgment of the Apex Court in Sahib Singh vs. State of Punjab1 was placed before the trial Court regarding the requirement of securing independent witnesses, and when there was no attempt made by the police officer requesting independent witnesses to join him for the proceedings, the trial Court, either on facts or law, failed to 1 1997 SCC (Crl-315) 7 appreciate the evidence in proper way and came to an erroneous opinion that the sole testimony of police officials is sufficient and convicted the accused. 9. Sri M.V. Ramana, learned Additional Public Prosecutor, would submit that the trial Court has given detailed reasons for accepting the testimony of police officials, for coming to a conclusion that the contraband was seized from the accused under Ex.P1 proceedings, and therefore, there are no grounds to interfere with the judgment of the trial Court. 10. In the light of the above rival contentions, the point for consideration in this appeal is as under: “Whether there are any grounds to interfere with the judgment of the trial Court?” 11. P O I N T: It is an admitted case that the seizure and arrest of the accused happened under Ex.P1 proceedings made on 17.10.2005. It is also an admitted fact that Ex.P1 is only a police proceeding. No independent witnesses were present at the place of arrest. Therefore, the witnesses examined in the case are only 8 the Assistant Sub-Inspector of Police and the Police Constable, to speak about the said seizure and arrest. The remaining two witnesses are the Investigating Officers, who registered the FIR and investigated the case. 12. The contention of the appellant is that the police, for the reasons best known to them, implicated the appellant in the case by planting contraband. Therefore, Ex.P1 proceedings were brought into existence with the assistance of police only, without seeking assistance of any independent witnesses, though there was every possibility and availability to secure independent witnesses. 13. Admittedly, the evidence of PW2 would disclose that he received prior information about the offence at about 5:00 p.m. on that day. The police station is located in the midst of the town at Giddalur. The alleged place of arrest is at a far off place of 17 kms from the police station. The police had to travel through Giddalur town and some villages to reach the place of arrest. The evidence on record does not disclose that PW2 made any efforts to secure any public servant like Village Revenue Officer or some 9 other village officers or any independent person available in the town or in the villages on the way to the place of arrest. 14. As rightly argued by the learned counsel for the appellant, no reason, much less tenable reason, is coming out from the evidence as to why PW2 did not make any effort to secure witnesses to accompany him to the place of arrest to avoid allegations of false implication or accusation. The Trial Court discussed the facts in detail, as contended by the learned Additional Public Prosecutor. However, the Trial Court, while considering the above circumstances, as to why PW2 did not make efforts, though he had every opportunity to secure independent witnesses on the way to the place of arrest, did not consider the same in proper perspective. 15. It is true that the evidence of police officials cannot be discarded on the ground that no independent witnesses were examined. The peculiar facts of the case on hand disclose that PW2, though he had every opportunity to secure independent witnesses on the way to the place of arrest, did not try to secure them, for his own reasons. It would create a reasonable doubt that there is every possibility of implicating a person in the case 10 also. It would create a reasonable doubt that PW2 did not choose to secure independent witness for the reasons best known to him. It would also create a doubt that there is every possibility to implicate the accused in the case under the cover of police proceedings, though no such seizure was occurred at the place of occurrence. 16. In those circumstances, this Court is of the opinion that the trial Court failed the above material fact into consideration in proper perspective. Therefore, come to an erroneous opinion. 17. In that view of the matter, this Court is of the considered opinion that prosecution failed to prove the arrest and seizure of the contraband beyond all reasonable doubt. Hence, the trial Court judgment is liable to be set aside. 18. In the light of foregoing discussion, the appeal is allowed. The judgment dated 07.04.2009 passed in S.C.No.330 of 2008 on the file of the Sessions Court at Ongole is set aside. The appellant/accused is acquitted for the offence punishable under Section 5 of the Explosive Substances Act, 1908. The fine amount, if any, paid shall be refunded to the appellant/accused. 11 The bail bonds shall stand cancelled. Registry shall certify the judgment in accordance with law. As a sequel, interlocutory applications, if any, pending shall stand closed. _____________________________ JUSTICE B V L N CHAKRAVARTHI Date: 11.02.2026 ANS/PSK 12 THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI 130 CRIMINAL APPEAL NO: 524/2009 Date: 11.02.2026 ANS/PSK.