Point of Law: Search and seizer of explosive substance - Conviction set aside - Kotha was of ownership of the Appellant or was in his exclusive possession is not established.

JUDGMENT :

1. This appeal has been preferred against judgment dated 26.11.2014 passed by 1st Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.45 of 2014, whereby the Appellant has been convicted and sentenced as under:

Conviction Sentence

Under Section 123 of the Indian Penal Code Rigorous Imprisonment for 7 years and fine of Rs.2000 with default stipulation

Under Section 4(B) of the Explosive Substances Act (the ‘ES Act’ for brevity) Rigorous Imprisonment for 5 years and fine of Rs.2000 with default stipulation

Under Section 8(1) of the Jan Suraksha Adhiniyam (the ‘JS Adhiniyam’ for brevity) Rigorous Imprisonment for 1 year and fine of Rs.500 with default stipulation

Under Section 8(2) of the JS Adhiniyam Rigorous Imprisonment for 6 months and fine of Rs.500 with default stipulation

Under Section 8(3) of the JS Adhiniyam Rigorous Imprisonment for 1 year and fine of Rs.500 with default stipulation

Under Section 8(5) of the JS Adhiniyam Rigorous Imprisonment for 3 years and fine of Rs.1000 with default stipulation

All the jail sentences are directed to run concurrently

2. Prosecution case, in short, is that on 2.2.2014, Surendra Uike (PW7), Station House Officer of Police Station Nagarnar, along with his staff, was on forest search and village visit. At that time, he received a secret information that the Appellant/Sarpanch of Village Gumalwada had kept naxal literature and explosive substance in his house. He reached the spot along with search party and witnesses. He searched the cow kotha(cowshed) of the Appellant. He found there explosive substance detonators, naxal literature, banners and pamphlets. They were seized vide seizure memo (Ex.P2). Search Panchnama (Ex.P3) was prepared. The seized explosive substance detonators were sent to BDS, Jagdalpur for examination. They were examined by Santosh Kumar Verma (PW5), a non-commissioned officer of BDS, Jagdalpur. His report is Ex.P5. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. Necessary sanction for prosecution of the Appellant was obtained from the competent authority. On completion of the investigation, a charge-sheet was filed against the Appellant. The Trial Court framed charges against him.

3. To bring home the offence, the prosecution examined as many as 8 witnesses. Statement of the Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the guilt, pleaded innocence and false implication. One Chaituram Baghel was examined as a witness (DW1) in defence of the Appellant.

4. On completion of the trial, the Trial Court convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that the Trial Court has convicted the Appellant without there being clinching and sufficient evidence against him. There is no documentary or oral evidence on record on the basis of which it could be said that the kotha from where the articles were seized was of ownership of the Appellant or was in his exclusive possession. It was further submitted that none of the independent witnesses has supported the case of the prosecution. The conviction is based only on the statements of police witnesses. It was further submitted that after their seizure the explosive substance and other articles were kept where, when and in what condition and when, by whom and in what condition they were sent for examination, no evidence is available on record in this regard. When and where was the seized explosive substance examined by Santosh Kumar Verma (PW5), his report (Ex.P5) mentions nothing about it. There is also no evidence on record to show that whether the seized article was received by Santosh Kumar Verma (PW5) in a sealed condition or not. Therefore, the prosecution does not get support to its case from the examination report (Ex.P5). In spite of that, the Trial Court, relying on Ex.P5, has convicted the Appel