VIVEK LUTHRA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Shri Gopal S. Chaturvedi, learned Senior Counsel, Shri D.B. Mishra, learned Counsel for the applicant and learned AGA.

(2.) ACCORDING to the prosecution case on 8 -5 -2006 on the basis of an information the informant alongwith police personnel reached at a Warehouse situated at B -17, Bulandshahr Road, Industrial Area, Ghaziabad where one Iqbal met them. The police party alongwith the aforesaid Iqbal reached at the back of godown where the applicant was found present. There was a water tank built inside the godown, which was searched and seven live explosive shells and number of empty shells were recovered. The information was conveyed to the higher authorities and a bomb disposal squad reached there. After examination seven shells were found living. The applicant was arrested on the spot. The recovered articles were seized. The First Information Report was lodged in offence under Sections 285, 286 I.P.C. and 3/5 Explosive Substances Act at P.S. Kavinagar Ghaziabad. Alter the investigation the charge -sheet was submitted against the applicant in offence under Section 286 I.P.C. only. The learned Chief Judicial Magistrate, Ghaziabad took cognizance vide order dated 23 -6 -2006 in offence under Section 286 I.P.C. and Section 3/5 Explosive Substances Act. The applicant moved an application under Section 482 Cr.P.C. for quashing the order dated 23 -6 -2006 passed in the case by the Chief Judicial Magistrate Ghaziabad before this Court which was registered at Criminal Misc. Case No. 8565 of 2006. This Court vide order dated 17 -6 -2006 directed that the case will be listed on 4 -9 -2006 for hearing and till then the operation of the order dated 23 -6 -2006 shall remain stayed. As a result of the said the order of order taking cognizance by the Chief Judicial Magistrate in offence under Section 286 I.P.C. and 3/5 Explosive Substances Act, has been stayed.

(3.) IT is argued by Sri G.S. Chaturvedi, learned Senior Counsel for the applicant that the applicant is a bona fide importer and the possession of the alleged shells could not be in his conscious possession. It has further been argued that the applicant is an importer of heavy melting steel scraps. The process of the import, shipment and delivery has been defined. There are inspections at both the counts before the actual delivery of scrap. The learned Counsel for the applicant has referred the statement of one Sachchidanand Sinha recorded by the investigating officer, who claims that he is custom house agent. He has stated that the scraps are brought by ship in containers. The containers are checked by the machines to ensure that it does not contain radio active material. Thereafter the containers are brought to Tughlakabad by trucks and 50% consignment is physically checked by custom authorities. The remaining 50% is partially checked so there could be possibility of leaving some material left un -checked. In the said process there may be a possibility that the disputed explosive shells escaped the notice of the authorities and the applicant.