LAXMAN PRASAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been preferred by the accused -appellant against the judgment dated 10.7.1987 passed by the learned Additional Sessions Judge, Bundi whereby he was convicted for offence under Section 5 of the Explosive Substance Act, 1908 and sentenced to undergo for rigorous imprisonment of five years with a fine of Rs. 500/ - with the stipulation that in the event of default for making payment of fine, he shall have to further undergo rigorous imprisonment for six months.

(2.) A first information report was lodged by one Bherulal, Constable with Police Station Bundi. In the report, it was alleged that on 11.7.1984 while the said Constable was on duty on the bus stand of Bundi at 8.30, pm the appellant was found with jute bag (Katta) near the bus which was going to Nainwa. On enquiry, he told his name to be Bheru Singh and when checked, the bag was found containing capsules of gelatin. Another Sipoy Shambu Kishore, also in the meantime approached there and both of them took accused Bheru Lal with the beg full of gelatin capsules to the police station. On checking it was found that there were as many as 191 capsules of gelatin in the jute bag. A chargesheet was filed against the appellant for offence under Section 4 of the Explosive Substances Act, 1908 (hereinafter referred to as "the Act"). Prosecution examined as many as 11 witnesses whereas the accused -appellant in defence produced Gajraj Singh.

(3.) SHRI S.K. Jain, learned Counsel for the appellant has argued that the learned trial Court erred in law in convicting the accused -appellant for offence under Section 5 of the Act because the accused was charged for offence under Section 4 of the Act and there was no charge against him for offence under Section 5 of the Act. It was argued that even for offence under Section 5 of the Act, the fact that the accused -appellant was found in the possession of the explosive substance could not be sufficient to prove the act within the purview of Section 5. The prosecution was further required to prove that the accused -appellant possessing explosive substance under such circumstances which gave rise to reasonable suspicion that he was not using it or did not have it in his possession or under his control for a lawful object. Initial burden to prove the fact of possession and the existence of circumstances which give rise to reasonable suspicion that such explosive substance possessed by the accused were not for a lawful object lay on the prosecution. In the present case, the prosecution has merely proved the possession but not the circumstances which give rise to reasonable suspicion of such possession for unlawful object. Learned Counsel in support of his argument relied the judgment of Supreme Court in Mohammad Usman Mohammad Hussain Maniyar and Anr. v. State of Maharashtra 1981 Criminal Law Journal 588 and Rajani Kanta Mandal v. : AIR1959Pat314 . Learned Counsel further argued that the learned trial Court was not justified in relying upon the testimony of PW.1 Bheru Lal, PW.2 Shambhu Kishore and PW.4 Surendra Singh who have contradicted each other. Bheru Laland Shambhu Kishore were Constables, therefore, they are interested witnesses and one of them filed the FIR. Only two independent witnesses were Motbir of the recovery and they turned hostile. Recovery against the appellant thus could not be proved. It was argued that solitary testimony of Investigation Officer cannot be relied upon. The prosecution failed to prove that seal of sample fixed at the time of recovery remained intact when it was sent for examination. In the present case, capsule of gelatin was not identified by the witness in the Court and the recovered Articles were not produced before the Court for proof. Mere oral evidence as to the feature and panchnama does not prove such recovery. Recovery of this nature shall have to be discarded. Learned Counsel for the appellant in support of his argument relied upon the judgment of Supreme Court in Jitendra and Anr. v. : 2003CriLJ4985 .