MOHD. AKBAR BUTT Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) THE appellant (Mohd. Akbar Butt) had been accused with two others, for having committed offences under the Explosive Substances Act, 1908 (hereinafter referred to as "the said Act "). They were tried together in Sessions Case No.82/2000. The Additional Sessions Judge, by a judgment dated 03.06.2003, found the appellant to be guilty of having committed the offences under Sections 4, 5 and 6 of the said Act. The two co-accused were also found guilty, but only for the offence under Section 6 of the said Act. By an order of sentence dated 07.07.2003, the appellant and the co-accused were sentenced to undergo 10 years rigorous imprisonment alongwith a fine of Rs 20,000.00 and two years rigorous imprisonment in default thereof, for the offence under Section 6 of the said Act. Additionally, the appellant was also sentenced to undergo life imprisonment and to pay a fine of Rs 25,000.00 and three years rigorous imprisonment in default thereof, in respect of the offences under Sections 4 and 5 of the said Act. The three convicts filed two appeals. One appeal was filed by the present appellant (CRL.A. 303/2004). The other appeal was filed by the co-convicts being CRLA 552/2003. By a common judgment dated 05.09.2006, a Division Bench of this court allowed CRL.A. No.552/2003 filed by the co-convicts and they were acquitted of the charge under Section 6 of the said Act and were directed to be released from jail forthwith. Insofar as the present appellant is concerned, his appeal (CRL.A. 303/2004) was partly allowed inasmuch as the conviction and sentence under Section 6 of the said Act was set aside. However, the conviction and punishment imposed on him under Section 4 read with Section 5 of the said Act were confirmed. In other words, the appellant (Mohd Akbar Butt) was sentenced to undergo imprisonment for life as well as to pay a fine of Rs 25,000.00 and, in default thereof, to undergo three years rigorous imprisonment for his conviction under Section 4 read with Section 5 of the said Act.

(2.) AFTER the said judgment dated 05.09.2006 was delivered, the appellant filed an application (CRL. M. No. 2026/2007) under Section 482 of the Code of Criminal Procedure, 1973 read with Articles 20(1) and 21 of the Constitution of India and Sections 4 and 5 of the said Act for recall of the judgment dated 05.09.2006. It was contended on behalf of the appellant (applicant) that, at the time when the offence was committed, the sentence provided under the provisions of Section 4 of the said Act was "transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added ". The sentence provided under Section 5 was "transportation for a term which may extend to 14 years, to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added ". It was contended on behalf of the appellant that by virtue of the amendment to the Indian Penal Code in 1956 and by introduction of Section 53-A therein, wherever the expression "transportation for a term " was used, the same was deemed to be omitted. Consequently, it was contended that the only punishment under Section 4 of the said Act could be imprisonment for a term which may extend to seven years, to which fine may be added. Similarly, in respect of Section 5, it was contended that the maximum punishment would be imprisonment for a term which may extend to five years, to which fine may be added. It was, therefore, contended that the sentence of life imprisonment for the offence under Sections 4 and 5 of the said Act were clearly beyond the powers of the court. It is on this basis that the said application (CRL.M. No. 2026/2007) under Section 482 of the Code of Criminal Procedure, 1973 had been filed seeking recall of the judgment dated 05.09.2006. The Division Bench, hearing the said application, felt constrained in exercising powers under Section 482, CrPC and observed:-

(3.) WE have heard the counsel for the parties on the question of sentence as directed by the Supreme Court.