Gauhati High Court
Nitai Singha vs State Of Assam on 16 February, 1990
Equivalent citations: 1990CRILJ2385
Author: S.N. Phukan
Bench: S.N. Phukan
JUDGMENT S.N. Phukan, J.
1. In this appeal the accused appellant was found guilty under Section 5 of the Explosives Substance Act, 1908, for short 'the Act' and was convicted accordingly and sentenced to suffer R.I. for 2 years and to pay a fine of Rs. 1,000/-.
2. The prosecution story is that on 16-6-80 the house of the accused Netai Singh who was a driver of Thaligram Tea Estate occupying a quarter in the said garden was searched and some explosive substances were found. Accordingly he was tried and convicted.
3. The learned Sessions Judge, Cachar at Silchar considered the following points:
(a) Whether there is valid sanction for prosecution;
(b) Whether any explosive substance was recovered from the house of the accused;
(c) Whether the report of the Controller of Explosives is admissible in evidence without examining him as a prosecution witness; and
(d) Whether the confession of the accused was voluntary.
4. All the points were decided against the accused appeal.
5. Mr. Talukdar, learned senior counsel for the appellant has urged that the prosecution failed to prove the recovery inasmuch as P.Ws. 2 and 3 who were alleged witnesses to the seizure stated on oath that they were not present at the time of search, but they signed some blank paper and that the retrated confession was not voluntary. Mr. Talukdar has further urged that the present conviction cannot be sustained as the prosecution failed to prove the ingredients of Section 5 of the Act. On the other hand Mr. Narzary, learned Public Prosecutor has urged that the confession was voluntarily made and in this connection he has taken me through the impugned judgment and has also placed reliance in the decisions of the Apex Court in Ram Parkash v. The State of Punjab, AIR 1959 SC 1: (1959 Cri LJ 90), Shankaria v. State of Rajasthan, AIR 1978 SC 1248 : (1978 Cri LJ 1251) and The State of Assam v. Upendra Nath Rajkhowa, 1975 Cri LJ 354 (Gauhati).
6. Without entering into the dispute as to whether the confession was voluntary or not I may only state that in the confessional statement the accused appellant stated that one Rajeswari Devi gave him two Jelatines and two Detonators and he put these articles inside a bag and kept the bag in an Almirah. From the impugned judgment I find that a separate proceeding is pending against Srimati Rajeswari Devi. I do not propose to enter into this disputed fact, at this stage, as to whether these explosive substances were recovered from the Almirah in view of the denial by P.Ws. 2 and 3. I may only record that according to Mr. Narzary P.Ws. 2 and 3 being employees of the same garden did not support the prosecution story in view of their relation with the accused who was also an employee of the tea garden. Section 5 of the Act runs as follows:
"5. Punishment for making or possessing explosives under suspicious circumstances --Any person who makes or knowingly has in his possession or under the control any 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 punishable with transportation for a term which may extend to fourteen 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."
7. On going through the said section, in my opinion to bring home a charge under the aforesaid section prosecution must prove the following ingredients:
(i) a person keeps in his possession or under his control any exposive substance and such possession must be conscious possession;
(ii) prosecution has further to prove circumstances to show there is reasonable suspicion that such possession of the explosive was not for lawful object;
(iii) the accused person can also show that possession of the explosive was for lawful object.
8. In this connection Mr. Talukdar has drawn my attention to two decisions of Bombay and Patna High Courts in Rangrao Dnyanu Nikam v. State, AIR 1952 Bom 72 : (1952 Cri LJ 334) and Rajani Kanta Mandal v. The State of Bihar, AIR 1959 Patna 314 : (1959 Cri LJ 891). In Patna decision, the learned single Judge held that the prosecution has further to prove that the incriminating objects were recovered from the possession of the accused in circumstances giving rise to a reasonable suspicion that he had them in his possession not for a lawful object. I am in respectful agreement with the ratio laid down by the Patna High Court.
9. In the case in hand there is not an iota of evidence to show any circumstances that there was reasonable suspicion that the possession of the explosive substance by the accused was for unlawful object.
10. It is settled law that if a confessional statement is accepted it should be accepted in toto. In the case in hand even if I accept the confessional statement, it does not prove that the accused kept the articles for unlawful Object more particularly as a proceeding is pending against Rajeswari Devi and I, therefore, hold that the prosecution has failed to prove the ingredients to bring the home charge under Section 5 of the Act.
11. In view of the above position, I need not consider other points urged at the Bar.
For the reasons stated above I find merit in the appeal. In the result, the appeal is allowed and the conviction and sentence are set aside. The accused is discharged from the liability of the bail bond.