IN RE: TAMMINA MUTYALU Vs. STATE

JUDGEMENT

(1.) THE appellant has been convicted by the learned Sessions Judge of Kistna for an offence punishable under Section 5 of Act VI of 1908 and sentenced to transportation for 5 years. He was charged also for having committed an offence under Section 4 of that Act but he has been acquitted in respect of the same.

(2.) THE Reserve Police Force which was temporarily located at Bezwada was housed in temporary huts by the side of the Bandar canal. On 15th November, 1942, even before the huts were completed, a corner in the line caught fire. On pulling down the palmyra leaves from the roof, two cotton balls were noticed each J an inch in diameter. The balls were suspected to be phosphorus balls. On 6th December, 1942, when a sentry was keeping watch, he saw fire breaking, out from the eastern side of the police line at 5 -30 p.m. At 3 p.m., on 7th December, 1942, the house of the accused was searched in which several articles were found, M. Os. i to 17, viz., a Congress flag, an earthern tub, a dirty black cotton, a cigarette tin containing yellow powder, another containing grey powder and a third containing chocolate powder, a cigar lighter with a rope foil, an empty tin, an empty green bottle, a white bottle containing white tablets, a bottle containing petrol, a bottle of denatured spirit, a big jar containing a liquid like varnish, a sandal wood oil tin, a book of " Swatantragarjana," rules and objects of Andhra Congress Socialist Party, and two bcoks of " Bhinna Margamulu " of Andhra Rashtra Congress Sangham. Among the articles recovered was also a blue bottle with yellow phosphorus in the water inside., The accused was not there nor was he found. A charge -sheet under Section 436, Indian penal Code, Rule 35(4) read with rule (a) of the same rule and Section 121 of the Defence of India Rules, and Sections 3, 4 and 5 of the Explosive Substances Act read with Ordinances Hand III of 1942, was filed. Sanction was accorded by the Government to the prosecution filed under Sections 4 and 5 of the Explosive Substances Act. He was prosecuted for the -charge -framed -only -under.Act VI of 1908, for possessing yellow phosphorus, and he has been convicted for. an offence punishable. under section 5 of that Act. On 19th'October, 1944; the accused surrendered: himself before: the Joint Magistrate, Bezwada. As pointed, out by the learned Assistant Sessions Judge, the Committing Magistrate had indicated that though the,police tried to connect the accused with the fire in the police line, the prosecution failed to connect him with the offence of setting fire to the police huts. The accused admitted that he had all articles mentioned above except the bottle containing phosphorus in water, which he said was not his. But he said he had a smaller bottle in which he had kept some scent. There was evidence that when the house of the accused was searched there were mediators present then and when the articles were seized a mahazar was also written. From the evidence of the witnesses present, it is clear that all the articles, M. Os. 1 to 17 were in his house and that M.O. 8 was one of them.

(3.) THE prosecution has to prove that the accused had in his possession any explosive substance under circumstances which lead to a reasonable suspicion that he is not having it for a lawful object. As already stated the Committing Magistrate himself has found that it has not been proved that the accused had anything to do with the fire in the police lines. In the charge, it is stated that the explosive substances in; his possession were phosphorus, petrol, denatured spirit, lead chromate, aluminium powder and ferric oxide. The appellant was a carpenter and there is nothing surprising in his having had petrol or denatured spirit, lead chromate, aluminium powders and ferric oxide for his profession. Therefore it cannot be said that, from the fact that he had them he must have had an unlawful intention or that there were circumstances to indicate that he was not having them for a lawful object. It is only in respect of the yellow phosphorus it is urged that its possession would make it an offence punishable under Section 5. Yellow phosphorus by itself is not an explosive substance, and under Section 2 of the Act, the expression, "explosive substance" is defined as follows: