JUDGMENT : R.N. Misra, J. - This appeal is directed against the judgment of conviction made by the Assistant Sessions Judge of Jeypore of the Appellant under Sections 120-B, 399 and 505(b) and (c) of the Indian Penal Code and Section 4 of the Explosive Substances Act of 1908 imposing various sentences of imprisonment and fine with a direction that the substantive sentences of imprisonment would run concurrently. 2. Prosecution alleged that the Appellant was one of a gang committing the aforesaid offences. He turned on approved to whom pardon had been given u/s 337 of the Code of Criminal Procedure. In the trial of the other accused persons, it was alleged that the Appellant will fully concealed the essential evidence and gave false evidence thus not complying with the conditions with which the tender was made. Accordingly he was prosecuted as provided u/s 339 of the Code of Criminal Procedure upon the certificate of the Public Prosecutor. 3. The Appellant took the plea that he had not concealed anything essential nor had he given false evidence. On the other hand he asserted that he had been forced to make a confession on the basis of which pardon was tendered to him. 4. 44 witnesses for the prosecution were examined and none was examined on the side of the defence. The learned Trial Judge accepted the prosecution case and convicted the Appellant under Sections 120-B, 399 and 505 of the Indian Penal Code. He was sentenced to rigorous imprisonment for two years on the first count; rigorous imprisonment for five years and a fine of Rs. 50/- with a defiant sentence of five months' rigorous imprisonment u/s 399 of the Indian Penal Code and two years' rigorous imprisonment u/s 505(b) and (c) of the Indian Penal Code. He was also convicted u/s 4 of the Explosive Substances Act of 1908 and was sentenced to five years' rigorous imprisonment. 5. It was contended by Mr. Misra on behalf of the Appellant that the prosecution has failed to establish that the Appellant had forfeited the pardon and was, therefore, liable to be prosecuted in terms of Section 339 of the Code of Criminal Procedure. 5. It was contended by Mr. Misra on behalf of the Appellant that the prosecution has failed to establish that the Appellant had forfeited the pardon and was, therefore, liable to be prosecuted in terms of Section 339 of the Code of Criminal Procedure. In the absence of the requisite sanction u/s 196-A of the Code of Criminal Procedure, the learned Trial Judge was not entitled to take cognizance of the offence u/s 120.B of the Indian Penal Code and that conviction, therefore, is liable to be quashed. Similarly, in the absence of necessary sanction u/s 196 of the Code of Criminal Procedure, the conviction u/s 505(b) and (c) of the Indian Penal Codes not sustainable. It is next contended that the evidence on record so far as the offence u/s 399 of the Indian Penal Code is concerned is not adequate enough to warrant a conviction. Want of requisite consent u/s 7 of the Explosive Substance Act has also been argued. 6. Section 196 of the Code of Criminal Procedure of 1898, which was applicable to this case provided: No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Indian Penal Code (45 of 1860)(except Section) 27 and Section 171-F, so far as it relates to the offence of personating or punishable u/s 108-A or Section 153-A, or Section 294-A, or Section 295-A or Section 505 of the same Code, unless upon complaint made by order of or under authority from, the State Government or some officer empowered by the State Government in this behalf. Section 196-A of that Code provided: No Court shall take cognizance of the offence of criminal conspiracy punishable u/s 120-B of the Indian Penal Code (45 of 1860)- (1) in a case where the object of the, conspiracy is to commit either on illegal act other than on offence, or a legal act by illegal means, or on offence to which the provisions of Section 196 apply unless upon complaint made by order or under authority from the State Government or some officer empowered by the State Government in this behalf, or (2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has, by order in writing, consented to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of Sub-section (4) of Section 195 apply no such consent shall be necessary. 7. The main case here was instituted upon the basis of the first information report by the police. It is conceded by learned Government Advocate that there is no material on record to show that there was compliance of the requirements of Section 196 or Section 196-A of the Code of Criminal Procedure so far as the offences punishable under Sections 505 and 120-B respectively of the Indian Penal Code are concerned. In this view of the matter, the prosecution for the offences punishable under Sections 120-B and 505 of the Indian Penal Code was not tenable and the conviction for those offences must stand vacated. 8. In regard to the conviction u/s 4 of the Explosive Substances Act of 1908, Mr. Misra for the Appellant contends that there has been no consent of the appropriate Government as provided u/s 7 of that Act and therefore, the Trial Judge could not have proceeded to the trial of the Appellant Ext. 51 purports to be the sanction order given by the State Government. Misra for the Appellant contends that there has been no consent of the appropriate Government as provided u/s 7 of that Act and therefore, the Trial Judge could not have proceeded to the trial of the Appellant Ext. 51 purports to be the sanction order given by the State Government. The material portion thereof is to the following effect: Whereas from reports received in connection with Chitrakunda P.S. (Koraput District) case number 58 dated the 28th September, 1969, it appears to the State Government of Orissa that the persons named below, had in their possession in the month October, 1969 explosive substances under suspicious circumstances punishable u/s 5 of the Explosive Substances Act, 1908. (Act No. VI of 1908). Now, therefore, in pursuance of Section 7 of the said Act read with Ministry of Home Affairs Government of India's S.R.O. No. 1530 dated the 14th May, 1957 the State Government do hereby give their consent for the trial of the aforesaid persons for on offence u/s 5 of the said Act. In the Schedule, the Appellant features as number 15. According, to learned Government Advocate, there has been compliance of the requirements of Section 7 of the Explosive Substances Act and there is no force in the contention of Mr. Misra that the conviction u/s 4 of the said Act is unauthorised. Section 7 of the Explosive Substances Act provides: No Court shall proceed to the, trial of any person for on offence against this Act except with the consent of Central Government. The function of the Central Government u/s 7 of the Act has been delegated to all State Governments in terms of Article 258 of the Constitution. The Allahabad High Court in the case of State v. Ram Pal A.I.R 1965 A 11. 15, accepted the position that the State Government is entitled to accord consent u/s 7 of this Act in view of the delegation. This, however, does not meet in full Mr. Misra's contention on this scope. The trial Court has convicted the Appellant u/s 4 of the Explosive Substances Act. Consent for his prosecution u/s 5 of that Act had been given. He was also charged for the offence u/s 5 of the Act. This, however, does not meet in full Mr. Misra's contention on this scope. The trial Court has convicted the Appellant u/s 4 of the Explosive Substances Act. Consent for his prosecution u/s 5 of that Act had been given. He was also charged for the offence u/s 5 of the Act. It is not disputed that Section 4 relates to a graver charge than Section 5: The maximum sentence on conviction u/s 4 of the Act is 20 years' imprisonment while u/s 5, it is 14 years. The principle indicated in the decision of the Allahabad High Court in the case of Fatta v. Emperor AIR 1947 All. 71, has no application to the facts of this case. There is force in the contention of learned Government Advocate, that on the facts found the conviction can properly be under, Section 5 of the Explosive Substances Act and since there is consent given by the competent authority for such prosecution, I should convert the conviction to one u/s 5 of the Act and adequately sentence the Appellant. For the reasons which I will refer to in another place of the judgment, the evidence regarding the Appellant's complicity in the matter so far as recovery of explosive substances is concerned, is very doubtful. Therefore, I do not think it would be appropriate to sustain the conviction u/s 5 of the Act. 9. The next contention which has been seriously pressed by the Appellant is that there has been no compliance of the provisions of Section 339-A of the Code of Criminal Procedure, That section provides: (1) The Court trying u/s 339 a person who has accepted a tender of pardon shall (a) it the Court is a High Court or Court of Session before the charge is read out and explained to the accused u/s 27J, Sub-section (1), and (b) if the Court is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken ask the accused whether he pleads that he has complied with the conditions on which the tender of the pardon was made. (2) If the accused does so plead the Court shall record the plea and proceed with the trial, and the jury, or the Court, or the Magistrate, as the case may be shall, therefore judgment, is passed in the case, find whether or not the accused has complied with the conditions of, the pardon, and, if it is found that he has so complied the Court shall notwithstanding anything contained in this Code, pass judgment of acquittal. In this case, on 1-5-1973, the learned Assistant Sessions Judge,asked the accused as to whether he pleaded that he had complied with the conditions on which, tender of pardon was mad i.e. The reply of the accused has been recorded thus: The accused pleads that he was not granted pardon and he did not make any statement. His statement u/s 164, Code of Criminal Procedure is also read over and explained, Hesays that he made such a statement as he was tutored and it is not a true statement. According to the prosecution, pardon had been tendered to the Appellant in terms of Section 337 of the Code of Criminal Procedure and he forfeited the tender of pardon, inasmuch as he did not state the truth and concealed the evidence. It was, therefore, incumbent on the prosecution to satisfy the Court that the Appellant had not complied with the conditions of the pardon; otherwise there can be no conviction as indicated by Section 339-A of the Code of Criminal Procedure. 10. A Bench of the Nagpur High Court in the case of AIR 1940 77 (Nagpur) laid down that it was for the prosecution to prove that the conditions of pardon had not been complied with and if the prosecution fails to do so, the accused to whom pardon had been tendered was entitled to acquittal. The best material for comparison would have been the confessional statement of the Appellant given as approver and his evidence at the trial upon which the prosecution; was founded Suprisingly enough, the learned Trial Judge did not look at the matter from such on angle. Ext. 19 is said to be the statement u/s 164, Code of Criminal Procedure given by the Appellant that is, the confessional statement. Due care was not taken while exhibiting the documents. Ext. Ext. 19 is said to be the statement u/s 164, Code of Criminal Procedure given by the Appellant that is, the confessional statement. Due care was not taken while exhibiting the documents. Ext. 19, as marked in this proceeding, is the statement recorded u/s 364 of the Code of Criminal Procedure, i.e. when the accused was examined u/s 342 of the Code bet ore the Magistrate. On account of adequate care not having been taken, on erroneous document has been placed on the record. I directed that steps be taken to search for the real document. Learned Government Advocate was also given on opportunity to trace the document from other records in the connected Criminal Appeal. But there has been no useful result. The learned Trial Judge apparently did not examine this aspect of the matter at all because he was of the view that with the production of a certificate of the Public Prosecutor as required u/s 339(1) of the Code of Criminal Procedure to the effect that the accused has not complied with the conditions of pardon, the Court had not to enquire into the correctness of the certificate and had to proceed on the assumption that what was stated in the certificate was correct. The prosecution has not taken any steps to establish the fact that the accused had not complied with the conditions of the pardon. That could be done only by placing before the Court the confessional statement and the Appellant's deposition at the trial, because it is only on on analysis of these two, that a fair and reasonable conclusion about the correctness of the allegation of the prosecution could have been reached. This is a serious infirmity in the prosecution case. Learned Government Advocate during argument contended that the matter should go back for a re-trial so that the prosecution may have occasion to bring in these documents. According to him, there would be no prejudice to the accused, inasmuch as these are his own statements and no new evidence is to be brought in. At the most, the accused may have to be examined against for giving him on opportunity of offering explanations in relation to matters appearing against him with reference to his previous statements, i.e. the confessional statement and his examination as a prosecution witness at the trial of the accused. On the other hand, Mr. At the most, the accused may have to be examined against for giving him on opportunity of offering explanations in relation to matters appearing against him with reference to his previous statements, i.e. the confessional statement and his examination as a prosecution witness at the trial of the accused. On the other hand, Mr. Misra for the Appellant contends that such a course would be very much prejudicial to the Appellant and he offered to take me through the evidence in regard to the charge u/s 399 of the Indian Penal Code. Section 399 provides: Whoever makes any preparation for committing decoity shall be punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. The evidence in regard to this charge so far as the Appellant is concerned consists of three items: (i) participation in meetings addressed by Naxalites; (ii) recovery of implicating materials discovery whereof was given by the Appellant while in custody and (iii) the confessional statement made by him. According to the prosecution, Naxalites led by D. Bhuban Mohan Patnaik and Nagbhusan Patnaik and others held a series of meetings in that part of the Koraput District. The Appellant is said to have addressed some of the gatherings. These meetings are said to have been held at the following places and as against each place the names of witnesses who speak about the same have been mentioned: Serial NumberPlace of meeting Witness deposing about. 1. Koyitipalli p.w. 3 2. Nellirnari p.ws. 4, 7, 28 and 29 3. Sarada Guda P.ws. 5 and 6 4. Potrel p.ws. 8 and 9 5. Orkel P.w. 10 6. Tarlakota P.w. 16 7. Sagnguda p.w. 17 8. Mohulpat P.ws. 18 and 24 9. Benurguda p.w. 19 10. Pushpalli p.ws. 20 and 25 11. Chintapalli P.w. 23 12. Sinakonda P.w. 26 Most of these witnesses have stated that at the various meetings the gathering used to be very small at some places, the total congregation used to be 5 to 6 and at some other places it was not in excess of 15 to 20. At the meetings the people present were being invoked to establish communist unions, cut down reserved jungles and distribute the land, schools to be founded in villages, Government should not be obeyed, rich people should be killed, their wealth looted and distributed equally among all, etc. Mr. At the meetings the people present were being invoked to establish communist unions, cut down reserved jungles and distribute the land, schools to be founded in villages, Government should not be obeyed, rich people should be killed, their wealth looted and distributed equally among all, etc. Mr. Misra for the Appellant states that this cannot be taken to be preparation for commission of dacoity within the ambit of Section 399 of the Indian Penal Code. His submission is that this might amount to any other offence, but a conviction u/s 399 of the Code cannot be sustained for participation or delivering speeches in the manner indicated above. Law requires that the accused should have done some act to get ready for committing dacoity in order that conviction u/s 399 of the Code may be sustained. Delivery of such speeches or attendance of meetings where such speeches are delivered, in my view, by itself would not amount to preparation for committing dacoity. It is true that the word "makes any preparation" point to acts done prior to commencement of the execution of the guilty purpose and it may be before any particular dacoity is planned. There may be cases where it would be enough if there is a general design to commit dacoity or to engage in any expedition for the said purpose although plans of the dacoity have not yet matured. But the making of preparation should be shown to the satisfaction of the Court by such act as collection of men arms, provisions, etc., which coupled with other circumstances plainly manifests on intention to commit dacoity. Delivering of speeches with a view to either recruiting people to the cult or invoking them to take to unlawful methods including commission of dacoity would not amount to preparation. Learned Government Advocate candidly conceded that if a Naxalite came to deliver, speeches and preach that dacoity be committed, it would not amount to preparation for committing dacoity within the meaning of Section 399 of the Indian Penal Code. In that view of the matter, this part of the prosecution story is not directly helpful to establish the charge u/s 399 of the Indian Penal Code though it may be used as a corroborative material If there be any further evidence to support the Appellant's complicity in preparation for committing dacoity. 11. The next evidence is in regard to recovery of implicating materials. 11. The next evidence is in regard to recovery of implicating materials. The recoveries are from two places, namely the residence of p.w. 15 and from a hill side p.w. 15, 32, 33, 36 and 44 are witnesses for the seizure from the house of p.w. 15 of M.Os. I to XXIII. P.ws. 27, 36 and 44 are the witnesses for the recovery from the hill side. On on analysis of the evidence of there witnesses; it would appear that they have not been speaking very cogently. While the witnesses regarding the seizure from the house of p.w. 15 were referring to the same incident, about details they were deposing very differently. It is difficult to act on their evidence to accept the story that it was the Appellant who really led the police party and witnesses and gave discovery of M.Os. I to XXIII. Similar is the situation in regard to p.ws. 27, 36 and 44 m the matter of discovery from the hill side. There is force in Mr. Misra's contention that the prosecution has not been able to prove beyond reasonable doubt the complicity of the Appellant in regard to the deposit of these recovered-articles. 12. Next comes the confessional statement. As I have already stated, the confessional statement is not on record. Ordinarily, I would have taken steps to obtain it, but since the Appellant has retracted from it, independent evidence would be necessary to sustain the conviction by utilisation of such statement. That, in my view, is wanting in this case. 13. There is sumptuous evidence to show that the Appellant is a man of property. He owns substantial agricultural lands in the hilly areas of Koraput District and is a rich man he has his own cultivation and owns his own ploughs and bullocks. He also runs his carts and when he is free from cultivation work undertakes transport work of others. In that view of the matter, it is indeed very difficult to accept the case of the prosecution that the Appellant should be preaching against holding at property and would agree to freely canvass that property if the people be taken away and distributed among the landless and the poor. Many witnesses have spoken about the participation of the Appellant in the meetings. The witnesses themselves were also participants in such meetings. Many witnesses have spoken about the participation of the Appellant in the meetings. The witnesses themselves were also participants in such meetings. This aspect of the matter has not been taken note of by the learned Trial Judge. I have genuine doubts in my mind that the Appellant was really not one who was a party to any preparation of dacoity and has been implicated in the matter. In view of such a conclusion by me, the conviction of the Appellant u/s 399 of the Indian Penal Code cannot be sustained. 14. I would accordingly allow the appeal, set aside the several convictions and sentences and direct that the Appellant shall be set at liberty forthwith. File if paid, shall be refunded. It appears, the Appellant has already suffered rigorous imprisonment for more than three years. Appeal allowed. Final Result : Allowed