Legality of recovery of articles from a quarry on information by accused.

This appeal is by the State against the order-passed by the First Class Magistrate, Cranganore, acquitting the two respondents of charges arising out of an alleged theft of explosives from a Government store.

Large stocks of explosives for use in connection with the cor struction of the Sholayar Hydro-Electric Project were stored by the Government in two magazines situated a little off the Chelakudi-Malikkippara Road at mile store 41/4. These magazines were under the direct control of P.W. 2, a Junior Engineer, attached to the project. The prosecution alleges that some time after 10-30 P.M. on 20th May, 1960, and before the next morning accused 1 Joseph, who is now no more broke open the locks of these magazines and committed theft of 21 boxes of gelatine and 7,400 detenaters. The stolen goods were removed from the place by accused 1 accused 2 and P.Ws. 8 and 9 in a lorry belonging to accused 3, a contractor. The lorry was first driven to Thumpurmuzhi where four packets of gelatine were removed by accused 1 for his own use and the rest were then taken to Ezhattumugham where accused 3 was doing some construction work. A part of the explosives was used at the work-site and the rest taken to the house of accused 3 from where they were later removed to a quarry at Panthakkal. The theft was detected on the morning of 21st May, 1960, when P.W.6 a lascar employed by P.W.2 visited the magazines for routine inspection. The matter was reported to P.W.2 who in turn informed his superiors. Exhibit P-3 report was filed before the Chalakudy Police Station on 21st May, 1960, and investigation was started. On 29th May, 1960, the first accused surrendered himself before P.W.39, the Deputy Superintendent of Police, to whom he made a confession. On information given by him four packets of gelatine were recovered from the compound of his house. On 2nd June, 1960, accused 2 surrendered himself and acting on his information the police recovered the explosives kept hidden in the quarry at Panthakkal. Accused 3 surrendered himself on 8th July 1960, and the final charge was laid on 22nd July, 1960, charging the first accused under section 454 and 380 Indian Penal Code, and the other two accused under the same sections read with section 109, Indian Penal Code. All the accused were charged with offences punishable under section 5(3)(b)of the Indian Explosives Act while accused 3 was also charged under section 12 of the Act read with Rules 31 and 81.

As noted earlier the first accused died before the trial. The other two completely denied the charges against them. The important items of evidence brought against them were the recoveries of the stolen properties on the basis of the information given by accused 1 and 2 and the testimony of P.Ws.8 and 9. The learned Magistrate found that no definite conclusion can be drawn from the recovery as against accused 1 in view of the fact that accused 1 was dead and could offer no explanation for the alleged possession of the stolen articles. The learned Magistrate further found that the explosives could have been lost from the stores not only by theft by accused 1 but in a number of other ways as well. As regard; the recovery in the case of accused 2, he was of the view that since the police ha,d already got information from other sources that a part of the stolen properties were secreted in the quarry no adverse inference could be drawn from the recovery which is alleged to be made on the basis of the information supplied by accused 2. The learned Magistrate also concluded that P.Ws.8 and 9 the main prosecution witnesses were in fact accomplices of the accused and as such their evidence is of little value in the absence of corroboration on material points which is lacking in the case.

The learned State Prosecutor argues that the conclusions arrived at by the 1 earned Magistrate are unsustainable because they are not based on proper appreciation of the evidence that the recovery of the stolen articles from t