The prosecution must establish beyond reasonable doubt that the accused were either transporting or in exclusive possession of the explosive substances to secure a conviction under Sec. 9b(ii) of the Explosives Act.

JUDGMENT

1. This revision petition is preferred by accused Nos.1 and 2 against the Judgment and Order of conviction and sentence passed by the trial Court, for the offence punishable under Sec. 9b(ii) of the Explosives Act [hereinafter referred to as 'Act' for short] which is confirmed by the appellate Court.

2. The case of the prosecution is that, on 4/9/2006, the Dy.S.P. [P.W.3], Nanjangud Sub-Division, received a credible information that certain explosive substances are being transported in a goods autorickshaw from Mysuru to Nanjangud. He immediately secured his staff and panchas and proceeded towards Hullahalli bridge. While they were inspecting the goods autorickshaws coming from Mysuru side, noticed a goods autorickshaw bearing reg. No.KA-11/5449, which was driven by accused No.3. On search, they found sealed packet containing 50 coils, 200 cartridges, 13 detonators, 23 capes, 25 kgs. of Potassium powder and 500 kgs. of Ammonium Nitrate. Accused No.3 as well as accused Nos.1 and 2 who were in the said autorickshaw were arrested and explosive materials were seized under a mahazar Ex.P1 in the presence of panchas. Before the trial Court, the prosecution got examined P.Ws.1 to 6 and marked Exs.P1 to 5.

The trial Court found the accused guilty of the offence punishable under Sec. 9b(ii) of the Act. The appeal preferred by the accused was dismissed by the learned Sessions Judge.

3. Heard the learned counsel for petitioners and the learned High Court Government Pleader for respondent/State and perused the material on record.

4. Relying on the evidence of P.Ws.1 to 6 and observing that the accused have not explained anything about the explosive substances and not stated as to why they were traveling in the said goods autorickshaw, the trial Court proceeded to convict them. It is observed that P.Ws.1 to 3 have spoken about the seizure of the explosive substances from the goods autorickshaw and P.W.6 viz, the owner of the goods autorickshaw has given the vehicle on hire basis to accused No.3 and also placing reliance on the evidence of P.W.4, who gave report as per Ex.P3 with regard to the explosive substances, the trial Court came to the conclusion that the prosecution has been able to establish the guilt of the accused.

5. The learned Sessions Judge observing that accused Nos.1 to 3 were caught red-handed while they were transporting explosive substances and a huge quantity of explosive substances were recovered from the goods autorickshaw and the accused have failed to offer any explanation for their possession of the explosive substances, confirmed the conviction and sentence passed by the trial Court. It is also observed by the learned Sessions Judge that the only inference that could be drawn against the accused is that they having knowledge that the explosives could cause danger to the public, carried it unauthorizedly and illegally and there is no reason to discard the evidence of P.Ws.1 and 3, which is cogent and consistent with each other.

6. From the material on record, it can be seen that explosive materials were seized from the goods autorickshaw, which was intercepted by P.W.3 along with his staff. P.W.4 has given a report, which is marked as Ex.P3 stating that the materials sent for examination are explosive substances. However, what is relevant to see is that, even according to the prosecution, accused No.3 was driving the said goods autorickshaw. The case against him has been split-up. From the evidence of P.W.6, it can be gathered that the goods autorickshaw was taken on hire by accused No.3. It is not the case of the prosecution that the explosive materials were found in the exclusive possession of the petitioners. None of the witnesses have stated that accused Nos.1 and 2 were holding the bag containing the explosives. As per Ex.P1, the explosives were concealed in bags on the rear side of the goods auto and plastic covers were put on its top. As per the evidence of P.W.1, at that time of raid, apart from hims