Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 317 (CHH)

Radhelal Satnami v. State of Chattisgarh

2014-08-20

SANJAY K.AGARWAL

body2014
JUDGMENT SANJAY K. AGARWAL, J. 1. Radhelal Satnami, appellant herein was tried for commission of offences punishable under Sections 4 & 5 of the Explosive Substances Act, 1908 (henceforth Act, 1908) on the charges that on 9.7.1999 about 17-50 in village Basabar, P.S. Gandai, District Rajnandgaon, from the possession of appellant four Live Detonator, Explosive Thread, Potassium Chlorate and Amonium Nitrate have been seized, which are explosive substances, from which the life and property could be endangered or by causing its explosion, life and property could be damaged. 2. The prosecution case as unfolded during the court of trial are as under: 2.1 On 9.7.1999, the Officer-in-Charge of police station - K.P. Banjare (PW-3) has received information by informer to this effect that in village Basabar, Radhelal Satnami, appellant herein has illegally kept the explosive substances in his house. On his information the said Officer along with Sub-Inspector Lahri reached to the house of appellant where he made raid in the house of appellant, in presence of witnesses one Lodhi and Domar and seized four live detonator, one explosive thread and 500 explosive substances of white colour, which was kept in a plastic bag, and the appellant was enquired about the licence for keeping explosive substances but he denied to have any licence, then the police made seizure of said explosive substances and sent for its chemical examination in which it is reported to be explosive substance, thereafter sanction for prosecution of the appellant has been obtained from District Magistrate and after completion of investigation charge-sheet has been filed before the Court of Additional Chief Judicial Magistrate, Khairagarh and after committal, case was tried by Additional Sessions Judge, Khairagah. 2.2. The Additional Sessions Judge, Khairagarh framed the charges under Sections 4 & 5 of the Act, 1908, against the appellant and read over to him but the appellant denied to commit any offence and pleaded for trial. 2.3. To bring home the offence, prosecution examined three witnesses namely Adhin (PW-1), Domar (PW-2) and K.P. Banjare (PW-3), Investigating Officer and brought eight documents to prove the charges-whereas appellant neither examined any witness nor brought any exhibits in support of his case. 2.3. To bring home the offence, prosecution examined three witnesses namely Adhin (PW-1), Domar (PW-2) and K.P. Banjare (PW-3), Investigating Officer and brought eight documents to prove the charges-whereas appellant neither examined any witness nor brought any exhibits in support of his case. 2.4 Learned Sessions Judge, after appreciating oral and documentary evidence available on record and considering the contentions of the parties, convicted and sentenced the appellant/accused as follows:- (i) Under Section 4 of the Explosive Substances Act and sentenced to suffer rigorous imprisonment for four years and fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for three months. (ii) Under Section 5 of the Explosive Substances Act and sentenced to suffer rigorous imprisonment for three years and fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently. 2.5 Questioning the said conviction and sentence awarded by Additional Sessions Judge, Khairagarh, instant appeal under Section 374(2), Cr. P.C. has been filed before this Court by the appellant herein. 3. Shri Awadh Tripathi, learned counsel appearing for the appellant would submit as under:- (i) That, the articles seized from the appellant was not proved to be the explosive substances within the meaning of Sections 4 & 5 of the Act, 1908. (ii) Prosecution has failed to prove that the appellant was in conscious possession of the said explosive substances. (iii) Prosecution has failed to prove that possession of the explosive substances for a lawful object. 4. As against this, Mr. Gupta, learned Deputy Advocate General, for the State would submit as under:- (i) Seized articles were found to be explosive possession on chemical analysis. (ii) The possession of the seized articles from the appellant has duly been proved. (iii) Since the appellant had no licence to possess the explosive substances in question, therefore, his conviction under Sections 4 & 5 of the Act, 1908 is legal and proper. 5. I have heard learned counsel appearing for the parties and considered the rival submissions made therein and perused the record of court below with utmost circumspection. 6. Upon hearing learned counsel for the parties, the following questions arise for determination:- (i) Whether conviction of the appellant for offence under Section 4 of the Explosive Substances Act, 1908 is just & proper? 6. Upon hearing learned counsel for the parties, the following questions arise for determination:- (i) Whether conviction of the appellant for offence under Section 4 of the Explosive Substances Act, 1908 is just & proper? (2) Whether conviction of appellant for offence under Section 5 of the Explosive Substances Act, 1908 is just & proper? 7. In order to appreciate the point in dispute, it would be proper to notice Section 4 (b) of Explosive Substances Act, which states as under:- 4. Punishment for attempt to cause explosion, or for making or keeping explosives with intent to endanger life or property.- Any person who unlawfully and maliciously:- (a) xxx xxx xxx (b) Makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in India, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added. 8. Sections 4 & 5 of the Explosive Substances Act, 1908 has suffered amendment with effect from 1.2.2002 but this Court is concerned with the un-amended provision as the date of offence in the present case is 9.7.1999, that is prior to amendment in the Act. 9. In order to bring home the offence under Section 4 of the Act, 1908 has to prove that (1) that the substance in question is explosive substance and (ii) the accused was in possession or under his control any explosive possession with an intent to endanger life or property. 10. Explosive substance has been defined in Section 2 of the Explosive Substance Act. The definition states as under:- 2. In this Act the expression explosive substance shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement. 11. In this Act the expression explosive substance shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement. 11. Thus, Section 2 of the Act, 1908 has a deeming provision which states that explosive substance would include any material for making any explosive substance. 12. Explosive substance has a broader and more comprehensive meaning than the term explosive - Explosive substance includes explosive. The term explosive has not been defined in the Act. The dictionary meaning of the word explosive is tending to explode suddenly with loud noise tending to cause explosion (The Concise Oxford Dictionary). In the Indian Explosive Act, 1884, the term explosive has been defined as follows: 4. In this Act, unless there is something repugnant in the subject or context :- (1) Explosive (a) Means gunpowder, nitro-glycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to produce a practical effect by explosion, or a pyrotechnic effect. (b) Includes fog-signals, fuses, rockets, percussion caps, detonators, cartridge, ammunition of all descriptions, and every adaptation or preparation of an explosive as above defined. 13. Investigating Officer-Mr. K.P. Banjare (PW-3) has seized following articles from the appellant (vide Ex.P-1), which, states as under :- (Vernacular matter omitted ...Ed.) 14. The Superintendent of Police by Exhibit P-6 dated 31.07.1999 sent the seized articles to the Director, Forensic Science Laboratory, Sagar for chemical analysis. The FSL report (Ex. P-7) concludes as under:- (Vernacular matter omitted ...Ed.) 15. The said FSL Report indicates that seized Article is explosive substance as Article A- contained potassium, ammonium chlorate & nitrate and Article A-2 contained four live detonator fitted with safety fuse. The explosive substance was combination of potassium chlorate and ammonium nitrate. Thus, the seized articles were unquestionably explosive substances within the meaning of Act of 1908. 16. The said FSL Report indicates that seized Article is explosive substance as Article A- contained potassium, ammonium chlorate & nitrate and Article A-2 contained four live detonator fitted with safety fuse. The explosive substance was combination of potassium chlorate and ammonium nitrate. Thus, the seized articles were unquestionably explosive substances within the meaning of Act of 1908. 16. Very recently, in Chandra Prakash vs. State of Rajasthan, JT 2014 (8) SC 97 : AIR 2014 SC (Cri) 1391 the Supreme Court while dealing with identical fact situation held that the materials for making the explosive substance would also be covered under the explosive substance and held as under:- 65. Section 2 of the Act, 1908 has a deeming provision which states that explosive substance which include any material for making any explosive substance. Similarly Section 4(d) of 1888 Act has a broader spectrum, which includes coloured fires or any other substance, whether single chemical compound or mixture of substance. That apart as we find apart from ammonium nitrate other articles had been seized, the combination of same, as per evidence of expert witness, was sufficient to prepare a bomb for the purpose of explosion. In additional to the same, huge quantity of ammonium nitrate was seized and it was seized along with other items. The cumulative effect is that the possession of these articles in such a large quantity by the accused gives credence to the prosecution version that the possession was conscious and it was intended, to be used for purpose of the blast. 17. Coming to the next question, whether the appellant was in possession or control of the explosive substance with intent to endanger human life. The explosive substance in question was seized vide Ex.P-1 from the house of the appellant in presence of two witnesses namely Adhin (PW-1), Domar (PW-2). 18. In order to prove the possession from the appellant, Adhin (PW-1) was examined by the prosecution. He did not support the case of prosecution and he was declared hostile though he has admitted his signature on the seizure memo (Ex.P-1). Domar (PW-2) has also not supported the prosecution case and he was also declared hostile. K.P. Banjare (PW-3) Investigating Officer has proved the fact of seizure of the explosive substance in question from the possession of the appellant. Domar (PW-2) has also not supported the prosecution case and he was also declared hostile. K.P. Banjare (PW-3) Investigating Officer has proved the fact of seizure of the explosive substance in question from the possession of the appellant. He states that on information from informer, he conducted raid in the house of the appellant in presence of the two witnesses i.e. Adhin (PW-1) & Domar (PW-2) and found the explosive substance including detonator in question hanging in the wall in plastic bag, which was seized in the presence of aforesaid two witnesses and on being enquired, it was informed to him that appellant did not have any licence for having possession of the said explosive substance. He was subjected to cross-examination but nothing has been brought to discredit his testimony. 19. Learned Sessions Judge has found that the appellant was in possession of the explosive substance in question relying upon the sole testimony of K.P. Banjare (PW-3) Investigating Officer. 20. At this stage, counsel for the appellant submits that there is no independent public witness to prove the seizure of explosive substance in question from the appellant, therefore, the unconfirmed testimony of police personnel (PW-3) should not be relied upon as it would be unsafe to base the conviction on the sole testimony of police officer. 21. The prosecution has got support from the evidence of K.P. Banjare (PW-3) Investigation Officer with respect to the recovery of explosive substance from the appellant, merely because he is the police officer, his evidence should not be discarded. 22. In Karamjit Singh vs. State of Delhi, (2003) 5 SCC 291 : AIR 2003 SC 1311 , their Lordship of Supreme Court considered the effect of non-examination of public witness and held as under:- It is noteworthy that during the course of the cross-examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel should not be relied upon, has hardly any substance and cannot be accepted. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel should not be relied upon, has hardly any substance and cannot be accepted. 23. Thus, in view of principles laid down in this regard; reliance placed by learned Special Judge on the testimony of police officer (PW-3) without any corroboration from the independent public witness cannot be faulted with and it is held that prosecution has been able to establish the factum of recovery of explosive substance in question from the possession of the appellant. 24. Now, the question is whether the prosecution has been able to prove conscious possession of the explosive substance in question from the appellant. 25. Mr. Awadh Tripathi, learned counsel appearing for the appellant submits that unless possession of explosive substance was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, section 4 (b) of the Act, 1908 is not attracted. 26. In Gunwantlal vs. State of Madhya Pradesh, (1972) 2 SCC 194 : AIR 1972 SC 1756 , the Supreme Court has held that possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. 27. Thereafter, in Durga Prasad Gupta vs. State of Rajasthan through CBI, (2003) 12 SCC 257 the Supreme Court while holding that once the possession is established, the person who claims that it was not a conscious possession has to establish it and held as under:- 24. The word conscious means awareness about a particular fact. It is a state of mind which is deliberate or intended. 26. The word possession means the legal right to possession (Heath vs. Drown, (1972) 2 All ER 561). In an interesting case it was observed that where a person keeps his firearm in his mothers flat which is safer than his own home, he must be considered to be in possession of the same. (Sullivan vs. Earl of Caithness, (1976) 1 All ER 844). 27. In an interesting case it was observed that where a person keeps his firearm in his mothers flat which is safer than his own home, he must be considered to be in possession of the same. (Sullivan vs. Earl of Caithness, (1976) 1 All ER 844). 27. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. 28. Thus, following the principles of law laid down by the Supreme Court in the aforesaid cases, the prosecution has clearly proved the fact of possession of explosive substance with appellant and it was for him to establish that how he came to be in possession, is within his special knowledge. 29. Apart from this, prosecution has clearly brought evidence on record to hold that the appellant was holding explosive substance without any licence or authority and accordingly it is held that seized articles were the explosive substance within the meaning of Section 2 of the Act, 1908 secondly the appellant was in conscious possession of the said explosive substance in question and thirdly the appellant had no licence or authority to make or possess explosive substance and, as such, all the essential ingredients of Section 4 of the Act, 1908 stand satisfied and as such the learned Special Judge is absolutely justified in convicting the appellant for the offence under Section 4 of the Act, 1908 and rightly sentenced to rigorous imprisonment for four years and fine of Rs. 500/-. Thus, the appellants conviction & sentence for commission of offence under Section 4 of the Act, 1908 is hereby affirmed. Answer to question No. 2. 30. Section 5 of the Explosive Substances Act, 1908 provides as under:- 5. 500/-. Thus, the appellants conviction & sentence for commission of offence under Section 4 of the Act, 1908 is hereby affirmed. Answer to question No. 2. 30. Section 5 of the Explosive Substances Act, 1908 provides as under:- 5. Punishment for making or possessing explosives under suspicious circumstances - Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished :- (a) In the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine. (b) In the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 31. In order to bring home the offence under Section 5 of the Explosive Substances Act, the prosecution has to prove : (i) That the substance in question is explosive substance. (ii) That the accused makes or knowingly has in his possession or under his control any explosive substance. (iii) That he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object. 32. The burden of proof of these ingredients is on the prosecution. The moment the prosecution discharges that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea. (Kindly see paragraph 14 of the judgment of Supreme Court in case of Mohammad Usman Mohammad Hussain Maniyar and Others vs. State of Maharashtra, (1981) 2 SCC 443 : AIR 1981 SC 1062 . 33. It has already been held in foregoing paragraphs that the substance in question was the explosive substance and accused knowingly has in his possession or under his control of that explosive substance and he had conscious possession of the substance in question. 34. 33. It has already been held in foregoing paragraphs that the substance in question was the explosive substance and accused knowingly has in his possession or under his control of that explosive substance and he had conscious possession of the substance in question. 34. Now the question is whether there is evidence on record with regard to above-noted 3rd ingredient of the said offence. 35. It has been argued by learned counsel appearing for the appellant that mere conscious possession of the explosive substance is not sufficient to bring the charge home to the appellant. 36. From the perusal of the record, it would appear that there is no evidence in this case to show that the explosive articles were recovered in this case under circumstances giving rise to a reasonable suspicion that the appellant did not have them in his possession for a lawful object. 37. In R. vs. Hallam, (1957) 1 All ER 665, S. 4(1) of the Corresponding English Act was construed by Lord Goddard, C.J. The words of that Section are similar to those of Section 5 of the Indian Act. The question directly at issue in that case was whether the word knowingly meant that the accused must know not only that he had a parcel or a substance in his possession but also that it was an explosive. 38. It was held that the clear meaning of the Section was that person not only knowingly had in his possession the substance but must know that it was an explosive substance. It was then observed that if evidence was given that the person had the substance in his possession, and some evidence of circumstances which give rise to a reasonable suspicion that he had got it for a lawful purpose was given, the jury were then entitled to infer, that he knew it was an explosive substance. I may quote his Lordships words: We think the proper direction to give to a jury in this case is that they must first of all be satisfied that he had the substance in his possession. Secondly, they must be satisfied that it was in his possession in circumstances such as to give rise to a reasonable suspicion that he had it in his possession not for a lawful object. 39. In the case in hand, third ingredient is completely lacking. Secondly, they must be satisfied that it was in his possession in circumstances such as to give rise to a reasonable suspicion that he had it in his possession not for a lawful object. 39. In the case in hand, third ingredient is completely lacking. The prosecution has not led any evidence to show that there were any circumstances in this case to give rise to a reasonable suspicion that the appellant had incriminating articles in his possession not for a lawful object. 40. Fact remains that appellant had allowed to raid his house and did not obstruct in conducting raid, if he was in possession of the incriminating articles was not for a lawful object, he would not have allowed the raid at once to the police party headed by K.P. Banjare (PW-3) Investigating Officer and he never tried to conceal the contents of bag. Therefore, I am of the considered opinion, that there is no proof that incriminating objects were recovered from the possession of the appellant in the circumstances giving rise to a reasonable suspicion that the appellant had incriminating articles in his possession was not for a lawful object, therefore, conviction of appellant for commission of offence under Section 5 of the Act, 1908 cannot be maintained and deserves to be set aside. 41. Resultantly, the criminal appeal is allowed in part. The conviction, as well as sentence for commission of offence under Section 4 of the Act, 1908 is maintained, however, appellants conviction and sentence for the offence under Section 5 of the Act, 1908 is hereby set aside. He is acquitted of the charge under Section 5 of the Act, 1908. The appellant is directed to surrender before the concerned Sessions Judge to serve out the remaining part of sentence. 42. No order as to costs. Appeal partly allowed.