Kishori Lal vs State of M.P.

K.S. Chauhan, J.—This criminal appeal u/s 374(2) of the Code of Criminal Procedure has been filed by the Appellant being aggrieved by the impugned judgment, finding and sentence dated 4/9/1997 passed by the Sessions Judge, Panna in ST No. 95/1996 whereby the Appellant has been convicted u/s 5 of the Explosive Substances Act, 1908 (hereinafter referred to as the "Act, 1908") and sentenced to RI for 5 years.

The prosecution case in short is that R.K. Mishra, A.S.I., Outpost Maheba received an information regarding making fire crackers by the Appellant, therefore he conducted raid at his residence and seized explosive substances from the possession of the Appellant. He was having no licence for manufacturing of such fire-crackers. He was arrested. FIR was taken down accordingly. Crime No. 67/93 u/s 5 of the Act, 1908 was registered against the Appellant at Police Station Amanganj. Spot map was prepared. The statements of the witnesses were recorded. The seized articles were sent for chemical examination to FSL, Sagar from-where report received. Sanction for prosecution was obtained from the District Magistrate, Panna. After completing the usual investigation the charge sheet was filed in the Court of JMFC, Panna, who committed the case to the Sessions Court for trial.

This Appellant was charged under Sections 5 of the Act, 1908. He denied the guilt and claimed to be tried mainly contending that he is innocent and has been falsely implicated. Prosecution examined as many as six witnesses. The Appellant did not examine any witness in his defence. After appreciating the evidence trial Court found him guilty for the offence charged and sentenced thereto as stated hereinabove in para No. 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence, the instant appeal has been preferred by the Appellant on the grounds mentioned in the memo of appeal.

Shri S.C. Datt, learned senior Counsel for the Appellant submitted that the Court below has not appreciated the evidence in proper perspective. It has not been proved that the explosive substances were seized from the exclusive possession of this Appellant. There is no evidence that the explosive substances were sealed at the spot. The specimen seal was not affixed at the draft memo sent to FSL, Sagar. That substances were not produced before the Court during the trial. All the ingredients to prove the offence u/s 5 of the Act, 1908 have not been proved, therefore the finding of guilt is erroneous which deserves to be set aside and Appellant is entitled for acquittal. He has placed reliance on the decisions rendered in the case Noor Aga v. State of Punjab and in the case Jitendra and Another Vs. State of M.P.,

On the contrary, Shri Vivek Agrawal, learned Counsel appearing on behalf of the Respondent/State supported the impugned judgment, finding and sentence mainly contending that the Appellant was preparing fire crackers without any licence and the prosecution has proved the case beyond reasonable doubt against him, hence finding of guilt is proper and does not call for any interference.

The main point for consideration in this appeal is that whether the trial Court has committed an illegality in convicting and sentencing the Appellant u/s 5 of the Act, 1908.

R.K. Mishra (P.W. 5) received information on 24/5/1993 at about 9:00 AM that Halke and Kishorilal were making fire crackers at their houses. This information was written in Rojnamcha Sanha No. 346 dated 24/5/1993 which is Ex.P-13, but he did not conduct the raid on that date. No reason was assigned for not conducting the raid on that date, however in the cross examination he stated that since the Appellant is of criminal tendency, therefore he did not make the raid on that day, but this reason is prima facie incorrect because he has not produced any criminal record of this Appellant. It shows his suspicious conduct. It appears that he was waiting for conducting such raid for some ulterior motive otherwise he should have immediately rushed to the spot as soon as he received such information of committing such crime.

It is borne out from the record that he conducted the raid alongwith force on the next day. According to him, the Appellant took out the explosive substances from his temporary house and produced, which were seized vide seizure memo (Ex.P-3), but he has not recorded any disclosure statement regarding the discovery of such explosive substances. No evidence is collected that the house in question was in exclusive possession of this Appellant and he was owner of it. The seizure witnesses were not made of that locality which is imperative under Sub-Section 4 of Section 100 of Code of Criminal Procedure one witness is of village Kakarhi and another is of village Vikrampur, whereas the incident is of village Maheba. What was the reason of not making the seizure witnesses of village Maheba, it goes to show that this witness was any how trying to implicate the Appellant in this case. In spite of doing so even these witnesses did not support him and clearly stated that no such explosive substance was seized from the possession of Appellant and never gone to the house of Appellant. No such substance was produced by the Appellant before police. Sardar Singh (P.W. 2) has stated that police obtained his signature at police station by calling him from the Amanganj market. Thus these witnesses have not given evidence regarding the contents of seizure memo (Ex.P-2). Thus there is discrepancy in the evidence of R.K. Mishra (P.W. 5) and seizure witnesses Suraj Prasad Awasthi (P.W. ) and Sardar Singh (P.W. 2).

Amar Bahadur Singh (P.W. 6) Head Constable has given the evidence in this respect that he is not the witness of any document. No document has been proved to show his presence at the time of conducting such search. It is not safe to rely upon the evidence of such witness.

There is no evidence that the seized articles were sealed at the spot. There is no evidence that any impression seal was affixed at the draft memo sent to FSL, Sagar There is no evidence that the seized articles were kept in safe custody in the Maalkhana The explosive substances were seized on 25/5/1993 and were sent for chemical examination on 11/8/1993 after about 3 months, therefore it was obligatory on the part of the prosecution to adduce the evidence that such substances were kept in safe custody and were not tampered with. No such evidence is adduced. The evidence has not been collected to the effect that the house was in exclusive possession of this Appellant. Thus the evidence is lacking in this regard. No independent witness has supported the prosecution case. The evidence of R.K. Mishra (P.W. 5) and Amar Bahadur Singh (P.W. 6) is not reliable for the reasons stated hereinabove. They are interested witnesses and it is not safe to convict the Appellant on the evidence of these witnesses.

The provisions of Section 5 of the Act, 1908 are as follows:

Punishment for making or possessing explosives under suspicious circumstances.- Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished,-

(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine;

(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

The prosecution has not adduced any evidence to show that he was having explosive substance for unlawful object. Thus the essential ingredient to prove offence u/s 5 of the Act is lacking in this case. The prosecution has failed to prove the case beyond reasonable doubt against the Appellant. Court below has committed an illegality in convicting him u/s 5 of the Act. Finding is erroneous which deserves to be set aside and the Appellant is entitled for acquittal.

Consequently, the appeal succeeds and is allowed. Conviction and sentence of the Appellant u/s 5 of the Act, 1908 recorded by the Court below are hereby set aside. He is acquitted from the offence u/s 5 of the Act, 1908. He is on bail, his bail bonds are discharged.