JUDGMENT

Ferrers, J C - On 1st May 1931, a Head Constable received information that the applicant was keeping and selling explosives in his shop without a license. The Head Constable, whose name is Husseinshah, took with him constable Nekram and mashir Gopu and visited the shop; there they found the applicant selling phatakas and sus-rees to one Bijal Hindu. Husseinshah searched the shop and there secured 50 pounds of these fireworks. For five months nothing was done upon this discovery, but on 8th October 1931 the City Police Inspector filed a complaint against the accused under Section 5, Clause 3, Explosives Act. The mashirnama which was drawn up at the time of the search has disappeared, but the Head Constable Husseinshah, constable Nekram and the observer Gopu state that they went to the shop and saw Bijal purchasing these phatakas from the accused and what they say is borne out by Bijal himself. On this evidence the learned Magistrate convicted the accused of the offences defined by Rules 35 and 37 and he imposed upon him a fine of Rs. 100 upon each count. The convict appealed to the Court of Session which confirmed the conviction and sentence and dismissed the appeal. Dissatisfied with this conclusion the convict has come to us in revision. He raises points of law which are these. Rule 35 is in these terms:

An explosive shall not be possessed except under a license granted under these rules provided that no license shall be necessary for the possession of manufactured fireworks in any quantity not exceeding 50 pounds.

2. It is argued that the goods seized in the convict's shop are not explosives within the meaning of the definition in the rules, that they come within the exemption in Rule 3 and that in any case the weight of them did not exceed 50 pounds. Now the definition of an explosive is contained in Section 4, Explosives Act. The material part of that definition is that an explosive is any substance used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect. Now, to decide whether the goods which were seized in the convict's shop did or did not come within this definition we should in the first place wish to inspect those goods themselves. Unfortunately however the goods which were then seized passed out of the possession of the Court after the decision of the appeal and the document in which they were described has also disappeared. We are therefore left with no means of coming to a decision except the name which has been given by all the witnesses to these things. That name is phatakas. Now a phataka appears to be a tube of paper about one inch in length and of very small bore containing a pinch of some composition which when touched with fire emits a puff and a crack. There seems to us to be no possible doubt that a phataka such as was shown to us in this Court comes within the meaning of the words "toy fireworks" and the general exemption exempts all such toy fireworks from the operation of the Indian Explosives Rules.

3. It is true that the object which was shown to us is not one of those which were actually seized in the, convict's shop. The learned Public Prosecutor has urged us to hold that this is a point of fact on which we have the concurrent findings of two Courts below. He therefore urges that in revision we should be slow to interfere. Now, if either of the Courts below appeared to have inspected the goods with this definition in mind, and if either the Magistrate or the Judge had said that

on inspection of these things I am convinced that they are not toy fire works but that they are explosives within the meaning of the Act

then this Court in revision would have been slow to interfere with such a concurrence of opinion. But in point of fact neither the learned Judge nor the learned Magistrate seems to have turned his attention to this point. Neither of them seems to have taken in his hand one of the fireworks in question. Each of them refers to a decision of the Pu