HARBHAJAN Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS order shall govern the disposal of both the Miscellaneous Criminal Cases No. 2411/06 and 2784/06, which are second repeat application under section 439 of the Code of Criminal Procedure in Crime No. 23/2006 registered at Police Station Kumbhraj, District Guna, for the offence under section 4 and 5 of the Explosive Substances Act, 1908 (hereinafter referred to as the' Act of 1908'). Earlier applications were dismissed as withdrawn.

(2.) AS per prosecution story, on 15.1.2006 police received information through the informer that at village Goreyakheda, Police Station Kumbhraj, near the well of Harbhajan some gelatine rods and aluminium detonators are lying. On the basis of the aforesaid information police searched the aforesaid place, which was a hut in an agricultural field and recovered 6 boxes of gelatine rods and 1200 aluminium detonators. Initially the crime was registered against Harbhajan and Roop Singh but thereafter after 20 days on the basis of the statement of Niranjan Singh (PW 2) and Murari (PW 3) petitioner Vijay Maheshwari was made accused and after investigation chargesheet was filed.

(3.) IT is submitted that petitioners Vijay Maheshwari and Harbhajan are in custody w.e.f. 7.3.2006 and 8.2.2006 respectively. It is further submitted that recovery was from open. place and the hut does not belong to Harbhajan. The submission on behalf of Vijay Maheshwari is that he is engaged in the business of digging the tubewells and he was using the explosive substances for the purpose of digging the tubewells, but the seized material does not belong to him. Learned counsel for the parties have submitted that they have not committed any breach of the provision of section 4 and 5 of the Explosive Substances Act and as per prosecution case the case will not fall under these provisions of law. It was further submitted that during this period trial has begun against the accused persons and the prosecution has examined as many as 4 witnesses. Babulal (PW 1), who was the witness of recovery of explosive substances, has stated that the police has taken his signatures on the search and seizure memo but has not recorded his statement. In the cross -examination he has stated that Harbhajan is not having any tractor. He does not know, who is the owner of the hut. He has also denied that the said land belongs to Roop Singh. Material witnesses Niranjan Singh (PW 2), Murari (PW 3) and Shrikrishna (PW 4) have not supported the prosecution and they were declared hostile and in cross -examination they have also denied the prosecution case.