Judgment Loknath Prasad, J. 1. This appeal is directed against the judgment of conviction dated 28-9-1995 passed by Shri A.K. Ojha, 5th Addl. District & Sessions Judge, Dhanbad in S.T. No. 238/83 through which he convicted and sentenced the appellant to undergo R.I. for five years u/s. 5 of the Explosive Substances Act and further he was also convicted and sentenced to undergo R.I. for two years and it was further ordered that both the sentences will run concurrently: 2. The prosecution case in short is that on 13-4-1981 at about 9.30 p.m. the informant B. Kumar, A.S.I. of C.I.S.F. was on patrolling duty with two C.I.S.F. Constables, namely, R.S. Adhikari and J.P. Yadav then the informant detected this very appellant coming on a cycle and something was kept in the basket of the cycle. It has been alleged that the informant became suspicious and then asked the appellant to stop and a search was made in the basket and 7 detonators and 7 dynamites were recovered and the appellant confessed that he was colliery worker and was carrying these detonators and dynamites only for fishing purpose in the tank. As the possession was illegal and unlawful so the informant seized the explosive substance but the appellant on the plea of attending the call of nature escaped away. The informant submitted written report on 14-4-1981 to the police on that basis this case was instituted and production-cum-seizure list was prepared and seized articles were sent to the expert of explosive and after obtaining the sanction of the District Magistrate charge sheet was submitted u/s. 5 of the Explosive Substances Act and also under sections 379/411 of the IPC. 3. After commitment the trial was taking up and the appellant denied the entire allegation of recovery of explosive substance and simply claimed himself innocent. The trial court believed the prosecution story and convicted and sentenced the appellant in the manner indicated above. Being aggrieved and dissatisfied with this order of conviction this appeal has been preferred. 4. 3. After commitment the trial was taking up and the appellant denied the entire allegation of recovery of explosive substance and simply claimed himself innocent. The trial court believed the prosecution story and convicted and sentenced the appellant in the manner indicated above. Being aggrieved and dissatisfied with this order of conviction this appeal has been preferred. 4. It is the prosecution case that on 13-4-1981 the appellant was apprehended alongwith 7 detonators and dynamites in a cycle near South Govindpur Colliery by the Informant, B. Kumar, A.S.I. of C.I.S.F. To prove the alleged recovery on behalf of prosecution PW- 1 Pramhans Narayan Singh, PW- 3 Jawahar Pal Singh and PW-4 Ramjee Singh Adhikari were examined PW-1 is simply a witness of the seizure and he put his signature on the seizure list that is Ext. 1 and has further claimed that on 13-4-1981 from the possession of appellant in a cycle 7 detonators and 7 dynamites were recovered and these articles are in coal mines. PW- 3, Jawahar Lal Singh claiming himself to be a C.I.S.F. Constable has also claimed about the recovery of dynamites and detonators from the possession of the appellant on 13-4-1981 near Govindpur Colliery but PW-3 has not been cited as a witness and in the FIR itself. On the other hand, PW-4 Ramjee Singh Adhikari, an another witness has also proved the recovery of some detonator and dynamites. The most important witness that is B. Kumar. A.S.I., C.I.S.F. who intercepted the appellant and whose instance the recovery was made could not be examined by the prosecution. However, from the evidence aforesaid witnesses this much can be said that some dynamites and detonators were recovered on 13-4-1981. 5. Counsel for the appellant submitted that the prosecution has not been able to prove that the articles were recovered from the possession of the appellant are explosive substances. Nodoubt the PW-2, S. Bhattacharya, Deputy Controller of Explosives, Assansole proved his report that is Ext. 2 to show that the explosives were sent to him for examination and those were explosive substances used in mining operation but J. Ojha, the main Investigating Officer of this case, could not be examined by the prosecution to prove that he sent the seized article for examination by PW-2. 2 to show that the explosives were sent to him for examination and those were explosive substances used in mining operation but J. Ojha, the main Investigating Officer of this case, could not be examined by the prosecution to prove that he sent the seized article for examination by PW-2. Nodoubt PW-6, another Investigating Officer who submitted the charge-sheet was examined but surprisingly he has not stated single word as to how and which articles were sent to DW-2 for examination. Thus, it can be said that the prosecution has not been able to prove of to connect the evidence of PW-2 that actually the articles seized from the possession of the appellant at relevant time was sent to him for examination and those were found to be the explosive substances. So non-examination of the Investigating Officer in such a situation creates some confusion and it has not been proved without any doubt that the seized articles were sent to PW-2 who found the same as explosive substances. 6. Even we assume that the seized articles were explosive substances then still the learned counsel for the appellant submitted that necessary ingredients justifying the conviction of the appellant under section 5 of the Explosives Substances Act has not been proved and it is lacking from the record. It was contended that to justify the conviction u/s. 5 of the Explosive Substances Act only conscious possession and recovery of the explosive substances is not sufficient rather the prosecution has to establish that the appellant was in possession of the same for unlawful object. In support to this contention he relied upon a case law of our own High Court reported in Rajnikant Mandal V/s. State of Bihar, and that of a Guwahati High Court reported in Nitai Sinha V/s. State of Assam. 7. From the authorities cited above and also on perusal of sec. 5 of the Act it can be said that for bringing home guilt u/s. 5 of the Explosive Substances Act the prosecution has not only to prove the conscious possession of the explosive substances but further the prosecution has to go a step further that is to prove that possession was for unlawful object. 5 of the Act it can be said that for bringing home guilt u/s. 5 of the Explosive Substances Act the prosecution has not only to prove the conscious possession of the explosive substances but further the prosecution has to go a step further that is to prove that possession was for unlawful object. In the instant case practically there is no evidence on the record to show that the appellant was in possession of the explosive articles for some unlawful object and on this point neither there is a direct evidence nor any circumstantial evidence to give any impression that the appellant was carrying the detonators for unlawful object. In that view of the matter, mere possession will certainly not attract the penal provision of sec. 5 of the Explosive Substances Act in view of the authorities of our own Court and that of Guwahati High Court. In that view of the matter, the conviction of the appellant u/s. 5 of the Explosive Substances Act by learned Addl. Sessions Judge, Dhanbad is un-justified and is fit to be set aside. So far as conviction of the appellant u/s. 379 of the IPC is concerned practically there is nothing on the record and no evidence was adduced that the appellant committed theft of the recovered articles or the recovered articles are the subject-matter of any theft. In that view of the matter, the conviction of the appellant u/s. 379 of the IPC is also hereby set aside. 8. In the result, this appeal is allowed and the judgment of conviction as recorded in S.T. No. 238/83 by 5th Addl. Sessions Judge, Dhanbad is hereby set aside and the appellants is acquitted of the charges and-he is in jail and so he is to be released forthwith, if not required in any other case.