AMBICA CHARAN ROY Vs. EMPEROR

JUDGEMENT

(1.) In these four appeals, sight appellants are before us, and they wore tried, with two other accused persons who have been acquitted, by a Special Tribunal appointed under the Bengal Criminal Law Amendment Act (Supplementary), 1925. The trial took place in November last and apart from certain connected charges to which I will refer as necessary the main charge against all the appellants was a charge of conspiracy. The charge was that at various places mentioned they were parties to a conspiracy to make and possess explosive substance, to collect arms and ammunition, and to kill Europeans and police officers; in other words, it was a charge of conspiracy which embraced offences under the Explosive Substances Act, the Arms Act and the Indian Penal Code, Section 302. The time during which the conspiracy wag alleged in the charge to have subsisted was between December 1929 a October, 1930.

(2.) I propose to begin by stating what, according to the case for the Crown, is the direct and substantive evidence against the appellants. First of all, the evidence for the Grown is that, in June 1930, the accused Bhupal, acting with one Rajani, went to the witness Niladri and, after various negotiations, gave orders for the making of what we now know to be aluminium bomb shells properly serrated so as to spread when the high explosive should take effect. These orders ware given calling the shells pipe pinions" and they were ordered on the footing that the articles were pipe pinions required in connexion with char-kas. Niladri's evidence is that 70 of these bomb shells of a smaller size and 18 or 19 of a large size were delivered between the end of June and the middle of July, some of the deliveries being to Bhupal and some to Rajani. The second thing which the prosecution claims to have established by direct evidence is that, on 6 September 1930, the accused Narain who had been arrested on 25 August, and whose laboratory and house had been searched on that day without any important consequences, took certain police officers to his house, No. 7 Kai-lash Bose Street and, there produced two test-tubes, certain bundles of glass tubes shaped in the form of the letter U, a copy of Cohen's Inorganic Chemistry and certain other articles. The prosecution evidence is that, out of the considerable number of U-tubes found, there were two which upon subsequent examination turned out to contain traces or small particles of fulminate of mercury and small pieces of cotton treated chemically so as to be in fact gun-cotton. This the prosecution claims to have established by the direct evidence of the police, of the search witnesses, of the Inspector of Explosives and of the Chemical Examiner's report. The third item is that on 10th September in the house at No. 8, Lal Madhab Mukherji Lane in the occupation of the accused Surendra Nath Dutt, the police on making a raid there seized a suit case which contained bombs, gun-cotton, fuses, five 38 revolver cartridges and five cartridges of the calibre 320 of Belgian make and having certain marks. They also at that time and place seized plans of various power stations in Calcutta. The fourth item is that on 10 September at 12-30 p. m. the accused Rohini Kanta Adhikari was arrested as he was entering No. 8, Lal Madhab Mukherji Lane, with a bundle wrapped ap in a gamcha and, on his being taken to the thana and searched, the gamcha was found to contain eight empty bomb sheila covered with some vegetable puisag so as to conceal them. The fifth item is that on that very day at 8-15 p.m. the accused Jyotish Chandra Bhowmick was arrested as he was entering this same house, No. 8 Lal Madhab Mukherji Lane, and when he was taken to the thana a Belgian cartridge of the same make as the 320 cartridges found in the suit case was taken from his person being tucked up in his kocha. The sixth item which the prosecution claims to have proved by direct evidence is that, on 14 September, the accused Surendra, took the police to his house, No. 8 Lal Madhab Mukherji Lane and pointed out to them one of several tin canisters under a wooden shelf on the ground floor. Some of these canisters were empty, while the others were full of scented oil, but one canister which was pointed out by Surendra to the police was found to contain four live bombs wrapped up in paper. It may here be observed that at this time neither Sitangshu nor Brojo, the approvers, had come on the scene. Sitangshu was not arrested until 1 October and Brojo was not arrested till 24 October.

(3.) The first thing which has to be considered is whether the facts which I have narrated have been established by the prosecution. As regards the find of the U-tubes, the case for the defence is that XT-tubes in themselves are not suspicious articles to be found in the house of a doctor who conducts business at a laboratory; and a good deal turns upon the two tubes which are alleged to have been found with traces of fulminate of mercury and small pieces of gun-cotton. Mr. Chaudhury for the accused Narain has contended before us that, as the search list contains a column for "remarks," and as it is stated that each of the articles seized was spread out and examined at the time, the fact that there is no note-about traces of fulminate of mercury or small pieces of cotton is a fact which ought to make us reasonably certain that no such traces appeared in any of the U-tubes that were at that time found. I may here say that a number of U-tubes was contained in bundles-there was a bundle of 32, another of 31, in another there were 20-and it is said, largely upon the absence of any note of anything special in these two tubes, that the proper inference is that the traces of fulminate of mercury and gun cotton powder have really been "planted" by the police. There is, of course, no evidence of anything of the sort; but, in order to examine into this question, which is of some importance, it is very necessary to consider the conduct of the accused Narain at or about the time.