Explosive Substances Act | Andhra Pradesh High Court Sets Aside Conviction Citing Over 2 Yrs Delay In Sending Sample For Forensic Analysis

The Andhra Pradesh High Court while setting aside a conviction under the Explosive Substances Act, 1908 held that when there is an unusual delay of 2.4 years in sending the evidence for forensic examination, the delay needs to be properly explained.

Justice A.V. Ravindra Babu has passed the order in a criminal appeal filed against the conviction order of the lower court under section 5 of the Explosive Substances Act, 1908.

The bench noted that the 6 blasting gelatin (gelignite) sticks seized from the accused/appellant were defused and preserved in 2003, but sent for forensic examination only in 2005.

“So, their case was that on 01.08.2003 the gelatin sticks were destroyed after preserving the substance therein for the chemical analysis. When that was the situation, the prosecution did not explain as to why there was delay of 2 years 4 months in sending the sample.”

The prosecution had contended that in 2003 while conducting routine patrolling at night, the police constables saw the appellant, and when she drew suspicion towards herself, they inspected the plastic bag she was carrying and found 6 sticks of blasting gelatin (gelignite). Due to the location being deserted and it being late in the night, the police could not secure the presence of mediators and seized the sticks from the appellant/accused.

An order to defuse the explosive material was sought from the court, which was allowed, and in August 2003 the sticks were destroyed, except for a small portion which was sent for forensic testing. The Forensic report revealed that the substance was 'highly explosive' after which the charge sheet was filed.

The Appellant/accused contended that the documents submitted by the prosecution could not be relied upon because there was an extraordinary delay of 2 years and 4 months in sending the substance for forensic examination.

Upon close inspection, the Bench observed that the S.I. who sought orders to defuse the gelatin in 2003 and filed the report in the same year stating that the sticks had been defused, was not the same S.I. but his successor submitted the preserved gelatin for forensic inspection in 2005. Hence, the bench noted that it is important that the chain of custody of the sample needs to be clearly established.

“So, when there was abnormal delay of 2 years 4 months in sending the sample to the Forensic Science Laboratory, the chain of custody of the sample was not proved.”

The S.I. in 2003 had recorded that the gelatin was defused after the orders of the Court in August 2003, however, the S.I. who submitted the material for the forensic report noted that the gelatin sticks were destroyed on the material was sent for forensic inspection, i.e., December 2005.

“So, what is evident is that under the guise of material objects in Crime No.84 of 2003, the sample that was preserved on 20.11.2005 was sent to the Director, Forensic Science Laboratory, Red Hills, Hyderabad. So, not only the prosecution failed to explain the delay in sending the sample and even otherwise the evidence on record goes to prove that the substance that was preserved on 01.08.2003 was not at all forwarded but on the other hand a different sample preserved on 20.11.2005 was forwarded.”

The Bench also noted that in the cross-examination the police constable had admitted to there being houses near the crime scene, but failed to explain why nobody was secured as a mediator.

And thus, the Court conceded with the accused/appellant that the absence of mediators, and the change of authority coupled with the dates being different on the exhibits, the case of the prosecution 'must crumble on its own.'

“So, when the own documents relied upon by the prosecution presents serious infirmities in the prosecution, the very conviction of the accused for the charge under Section 5 of the Explosive Substances Act is not at all sustainable.”

The appeal was thus allowed.

Case no.: CrlP 452 of 2009

Counsel for appellant: D. Ramaswamy Reddy, Rep. Devakumar Salikiti

Counsel for respondent: N. Sravan Kumar, Special Asst. Rep. Public Prosecutor.

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