IMPORTANT POINT
Where an explosive substance is alleged to have been recovered from the house of accused pursuant to disclosure statement of accused and the evidence on record showed that before interrogation accused had been formally taken into custody the accused cannot be held in conscious possession of explosive substance where other family members were also residing in that house.

JUDGMENT

S.D. Bajaj, J.- In pursuance of disclosure statement allegedly made by accused Virsa Singh to him S.I. Sardara Singh of Police Station Patti district Amritsar in Punjab State is alleged to have recovered from the conscious possession of the accused from inside the comer of his residential house in Ward No.9, Patti an explosive live hand granade on October 1, 1980. Vide its impugned judgment dated May 4, 1984 learned trial court acquitted the accused on the grounds that the disclosure statement was recorded before apprehending the accused in police custody and that the prosecution had not adduced any evidence to prove that the hand granade was recovered from the possession of the accused in circumstances giving rise to a reasonable suspicion that he had the same in possession not for a lawful object. Feeling aggrieved there from the State of Punjab has filed Criminal Appeal No. 550-DBA of 1984 in this Court.

2. We have heard Sri S.K. Sharma, D.A.G. Punjab, for the appellant State, Shri A.S. Kalra, Advocate, for the respondent and have carefully perused the relevant material on record.

3. Legal proposition availed of by the learned trial court for recording the judgment of acquittal finds favor in the observations made by this Court in Jai Singh v. The Stale of Haryana1, which reads :

"There is another infirmity in the case. To prove a case under section 5 of the Explosive Substances Act, two ingredients are to be satisfied. Firstly that the explosive substance was in conscious possession of a person and secondly that the possession or control was as to give rise to a reasonable suspicion that he is not making it or does not have it for a lawful object. In the instant case, even if the statement of the Inspector is relied upon only possession is proved: It is not further proved that the incriminating object was recovered from the possession of the appellant in circumstances giving rise to a reasonable suspicion that he had the same in possession not for a lawful object. According to Dr. Chugh, Director, Forensic Science Laboratory, the substance was explosive but was without a fuse wire, which could be used only for demolition purposes. There is nothing in the evidence to show that the appellant had kept the substance in possession to use it for not a lawful object. Accordingly, I am of the view that no offence is made out against the appellant under section 5 of the Explosive Substances Act. A similar view was taken in Crl. Appeal No. 278 of 1978 (Bharat Singh v. Haryana State2 decided on 30th November 1979. This view also finds support in the judgment of the Patna High Court reported as Rajani Kania Mandai v. The State of Bihar3, based on the judgment of the House of Lords in R. v. Hallam4, wherein it was observed as under :

'To substantiate a charge under Section 5, Explosive Substances Act, it is not sufficient to prove merely that the accused was in conscious possession of an explosive substance. 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. If there is no evidence to prove this, the charge under Section 5 is not sustainable against him.'

4. The provision of section 4(1) of the Explosive Substances Act, 1883 of England is in the following terms:

'Any person who knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he does not have it in his possession or under his control for a lawful object, shall, unless he can show that he had it in his possession or under his control for a lawful object, be guilty of felony

5. The law of England is identical. Section 5 of the Explosive Substances Act is para material in the same words.

6. Similarly it was observed by this Court in Jarnail Singh v. The Slate of Punjab5:

"The learned counsel for the pe