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CHATTISGARH HIGH COURT
SANJAY K. AGARWAL, J.
Radhelal Satnami – Appellant
Vs.
State of Chattisgarh – Respondent
Criminal Appeal No. 813 of 2010
Decided On : 20.8.2014
Explosive Substances Act - Section 5 - evidence on record - commission of offence - rigorous imprisonment - Officer-in-Charge of police station - K.P. Banjare (PW-3) has received information by informer to this effect that in village Basabar, Radhelal Satnami, appellant herein has illegally kept the explosive substances in his house. On his information the said Officer along with Sub-Inspector Lahri reached to the house of appellant where he made raid in the house of appellant, in presence of witnesses one Lodhi and Domar and seized four live detonator, one explosive thread and 500 explosive substances of white colour, which was kept in a plastic bag, and the appellant was enquired about the licence for keeping explosive substances but he denied to have any licence, then the police made seizure of said explosive substances and sent for its chemical examination in which it is reported to be explosive substance, thereafter sanction for prosecution of the appellant has been obtained from District Magistrate and after completion of investigation charge – Held, We think the proper direction to give to a jury in this case is that they must first of all be satisfied that he had the substance in his possession. Secondly, they must be satisfied that it was in his possession in circumstances such as to give rise to a reasonable suspicion that he had it in his possession not for a lawful object - In the case in hand, third ingredient is completely lacking. The prosecution has not led any evidence to show that there were any circumstances in this case to give rise to a reasonable suspicion that the appellant had incriminating articles in his possession not for a lawful object - Fact remains that appellant had allowed to raid his house and did not obstruct in conducting raid, if he was in possession of the incriminating articles was not for a lawful object, he would not have allowed the raid at once to the police party headed by K.P. Banjare (PW-3) Investigating Officer and he never tried to conceal the contents of bag. Therefore, I am of the considered opinion, that there is no proof that incriminating objects were recovered from the possession of the appellant in the circumstances giving rise to a reasonable suspicion that the appellant had incriminating articles in his possession was not for a lawful object, therefore, conviction of appellant for commission of offence under Section 5 of the Act, 1908 cannot be maintained and deserves to be set aside - Resultantly, the criminal appeal is allowed in part. The conviction, as well as sentence for commission of offence under Section 4 of the Act, 1908 is maintained, however, appellants conviction and sentence for the offence under Section 5 of the Act, 1908 is hereby set aside. He is acquitted of the charge under Section 5 of the Act, 1908. The appellant is directed to surrender before the concerned Sessions Judge to serve out the remaining part of sentence - It was held that the clear meaning of the Section was that person not only knowingly had in his possession the substance but must know that it was an explosive substance. It was then observed that if evidence was given that the person had the substance in his possession, and some evidence of circumstances which give rise to a reasonable suspicion that he had got it for a lawful purpose was given - Appeal allowed
SANJAY K. AGARWAL, J.
1. Radhelal Satnami, appellant herein was tried for commission of offences punishable under Sections 4 & 5 of the Explosive Substances Act, 1908 (henceforth Act, 1908) on the charges that on 9.7.1999 about 17-50 in village Basabar, P.S. Gandai, District Rajnandgaon, from the possession of appellant four Live Detonator, Explosive Thread, Potassium Chlorate and Amonium Nitrate have been seized, which are explosive substances, from which the life and property could be endangered or by causing its explosion, life and property could be damaged.
2. The prosecution case as unfolded during the court of trial are as under:
2.1 On 9.7.1999, the Officer-in-Charge of police station - K.P. Banjare (PW-3) has received information by informer to this effect that in village Basabar, Radhelal Satnami, appellant herein has illegally kept the explosive substances in his house. On his information the said Officer along with Sub-Inspector Lahri reached to the house of appellant where he made raid in the house of appellant, in presence of witnesses one Lodhi and Domar and seized four live detonator, one explosive thread and 500 explosive substances of white colour, which was kept in a plastic bag, and the appellant was enquired about the licence for keeping explosive substances but he denied to have any licence, then the police made seizure of said explosive substances and sent for its chemical examination in which it is reported to be explosive substance, thereafter sanction for prosecution of the appellant has been obtained from District Magistrate and after completion of investigation charge-sheet has been filed before the Court of Additional Chief Judicial Magistrate, Khairagarh and after committal, case was tried by Additional Sessions Judge, Khairagah.
2.2. The Additional Sessions Judge, Khairagarh framed the charges under Sections 4 & 5 of the Act, 1908, against the appellant and read over to him but the appellant denied to commit any offence and pleaded for trial.
2.3. To bring home the offence, prosecution examined three witnesses namely Adhin (PW-1), Domar (PW-2) and K.P. Banjare (PW-3), Investigating Officer and brought eight documents to prove the charges-whereas appellant neither examined any witness nor brought any exhibits in support of his case.
2.4 Learned Sessions Judge, after appreciating oral and documentary evidence available on record and considering the contentions of the parties, convicted and sentenced the appellant/accused as follows:-
(i) Under Section 4 of the Explosive Substances Act and sentenced to suffer rigorous imprisonment for four years and fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for three months.
(ii) Under Section 5 of the Explosive Substances Act and sentenced to suffer rigorous imprisonment for three years and fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently.
2.5 Questioning the said conviction and sentence awarded by Additional Sessions Judge, Khairagarh, instant appeal under Section 374(2), Cr. P.C. has been filed before this Court by the appellant herein.
3. Shri Awadh Tripathi, learned counsel appearing for the appellant would submit as under:-
(i) That, the articles seized from the appellant was not proved to be the explosive substances within the meaning of Sections 4 & 5 of the Act, 1908.
(ii) Prosecution has failed to prove that the appellant was in conscious possession of the said explosive substances.
(iii) Prosecution has failed to prove that possession of the explosive substances for a lawful object.
4. As against this, Mr. Gupta, learned Deputy Advocate General, for the State would submit as under:-
(i) Seized articles were found to be explosive possession on chemical analysis.
(ii) The possession of the seized articles from the appellant has duly been proved.
(iii) Since the appellant had no licence to
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