JUDGMENT : VIRENDRA KUMAR SRIVASTAVA, J. 1. This appeal has been preferred against judgment and order dated 3.9.2003, passed by Addl. District and Sessions Judge, Fast Track Court No. 3, Kanpur Nagar in Session Trial No. 100 of 2003 (State of U.P. Vs. Qamar Alam), under Section 4/5 Explosive Substances Act, arising out of Case Crime No. 89 of 2000, P.S.- Chamanganj, Distt.- Kanpur Nagar whereby the accused appellant- Qamar Alam (hereinafter referred as appellant) has been convicted under Section 5 of Explosive Substances Act and has been sentenced for rigorous punishment of two years and fine of Rs. 1000/- and in case of default in payment of fine with an additional period of simple imprisonment of two months. 2. The brief facts relevant for disposal of this appeal are that on 23.8.2000 S.O. of P.S.- Chamanganj, S.I. Rajesh Kumar Tiwari (P.W.-2) with S.I.-Anil Kumar (P.W.-1), Const.- Virendra Singh, Const.- Ravindra Kumar Tiwari, Const.-Chhote Singh Yadav was on patrolling duty to maintain law and order and in the search of wanted criminals. When they reached Mohalla-Humayun Bagh in the area of Dalelpurawa, S.I.-K.N. Tripathi and Const. Jawahar Singh, who were also on patrolling duty, met them. Meanwhile, they got an information that two persons, having a stolen scooter and bomb, were coming from Zarif police outpost side and would go towards Chandrika Devi Temple. Upon that information police party, led by S.I. Rajesh Kumar Tiwari (P.W.-2), asked the persons who were passing away (Rahgir), to join them as witness but none had given his assent. The police party along with informer searched out themselves personally and after satisfaction that no objectionable article was with them, stood at north-east corner of Chandrika Devi temple and waited for the persons, as informed by informer. After sometime they saw that two persons were coming by a red colour scooter and grey colour scooter from Zarif police outpost side. On the pointing out of the informer the police party intercepted them, searched them in person and asked their names and address. The person riding on red colour Bajaj Classic scooter bearing Registration No. UP 78 P 6354, told his name-Ziaul Hasan R/o 88/443 Humayun Bagh, P.S. Chamanganj, Kanpur Nagar. He could not produce any paper regarding the scooter but no objectionable article was recovered from him whereas another person told his name as Qamar Alam (appellant) s/o Mohd. The person riding on red colour Bajaj Classic scooter bearing Registration No. UP 78 P 6354, told his name-Ziaul Hasan R/o 88/443 Humayun Bagh, P.S. Chamanganj, Kanpur Nagar. He could not produce any paper regarding the scooter but no objectionable article was recovered from him whereas another person told his name as Qamar Alam (appellant) s/o Mohd. Zafar R/o 92/202 Heeraman Ka Purwa, P.S. Bekanganj, Kanpur Nagar. He also could not produce any paper of his scooter. On his personal search two country made bombs were recovered from his left pocket of trouser (Pajama) and other two country made bombs from right pocket of his trouser. All of them were separately packed in small tin boxes, wrapped with black tape. Both the persons failed to give a satisfactory answer regarding absence of papers of their scooters. Thereafter, appellant was arrested for the offence under Sections 41/102/411 IPC and 4/5 Explosive Substance Act whereas other co-accused was arrested only for the offence under Sections 41/102/411 IPC at 20:25 pm. 3. The recovered bombs were kept in a tin container, having water. Seizure memo (Ex.Ka-1) was prepared in the light of torch and bulb and got signed by the member of police party and copy of seizure memo was also given to appellant as well as to other accused. On the basis of seizure memo the first information report under sections 41/102/411 IPC and 4/5 Explosive Substances Act, was lodged at P.S. Chamanganj on 23.8.2000 at 23:05 pm. 4. Investigation of the case was given to S.I. Arun Kumar Shukla (P.W.-4) who during investigation inspected place of occurrence, prepared site plan (Ex.Ka-2). He sent the recovered bombs, after their disposal, to forensic science laboratory for examination and produced the papers before the D.M., Kanpur Nagar for prosecution sanction (Ex.Ka-4) and after investigation he filed charge sheet (Ex.Ka-5) against appellant. 5. During trial prosecution has produced S.I.- Anil Kumar (P.W.-1), S.I.- Rajesh Kumar Tiwari (P.W.-2), Const.- Virendra Singh (P.W.3), S.I.- Arun Kumar Shukla (P.W.-4) and Const.- Vimalkant Goel (P.W-5). Appellant-accused denied the prosecution version in his statement under Section- 313 Cr.P.C. and claimed himself as innocent. The Trial Court after conclusion of trial found appellant guilty for offence under Section 5 of Explosive Substances Act, convicted and sentenced him as above. Feeling aggrieved, the appellant preferred this appeal. 6. Appellant-accused denied the prosecution version in his statement under Section- 313 Cr.P.C. and claimed himself as innocent. The Trial Court after conclusion of trial found appellant guilty for offence under Section 5 of Explosive Substances Act, convicted and sentenced him as above. Feeling aggrieved, the appellant preferred this appeal. 6. Heard learned counsel for the appellant, learned AGA for the State and perused the record. 7. Learned counsel for the appellant has submitted that the appellant is innocent. No incriminating article was recovered from his possession. He was arrested from his house and false recovery had been shown from his possession. There is no independent eye-witness to the incident and police had not tried to make any independent eye-witness to the alleged recovery. Trial Court's finding itself is shaky and untenable, based on surmises and conjecture. Thus impugned order and judgment is liable to be set aside. 8. Per contra, learned AGA has refuted the argument of appellant's counsel. He has submitted that evidence produced by prosecution is wholly reliable and sufficient to prove the offence against appellant. Appeal is liable to be dismissed. 9. From perusal of record it transpires that no public or independent witness was produced in this case and only police witnesses were produced before the Trial Court by the prosecution, in order to prove the prosecution case. The Supreme Court in Tahir Vs. State (Delhi Administration) reported in, (1996) AIR SC 3079, held as under:- "In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case." 10. Thus it is settled principle of criminal jurisprudence that only on the ground that no public witness was produced in support of the prosecution case, the evidence of police witnesses cannot be discarded. Police witnesses are as much as reliable as the public witnesses. Only careful scrutiny of their evidence, as a rule of prudence, is required. So, if the statements, given by the police witnesses, are reliable and trustworthy and their presence on the spot are natural, the prosecution can succeed only on the basis of the evidence of police witnesses. Thus it has to be seen whether the statements of police witnesses are reliable or not. 11. In this case prosecution has produced S.I.- Anil Kumar (P.W.-1), S.I.- Rajesh Kumar Tiwari (P.W.-2) to prove the recovery of bombs and preparation of seizure memo (Ex.Ka-1), Const.-Virendra Singh (P.W.3) to prove requisition letter for chemical examination (Ex.Ka-2), S.I.- Arun Kumar Shukla (P.W.-4) as Investigating Officer to prove the site plan (Ex.Ka-3), prosecution sanction (Ex.Ka-4) and charge sheet (Ex.Ka-5) and Const. Vimalkant (P.W.-5) to prove FIR chick (Ex. Ka-6) and G.D. (Ex. Ka-7). 12. S.I. Rajesh Kumar Tiwari (P.W.-2) has deposed that on 23.8.2000 he was on patrolling duty to maintain law and order and in search of wanted accused with S.I. Anil Kumar (P.W.-1), Const.-Virendra Singh, Const. Ravindra Kumar Tiwari and Const.- Chhote Singh Yadav. Meanwhile S.I. Kedar Nath Tripathi, and Const. Jawahar met him. According to him, on the information of informer that two persons were coming from Zarif police outpost (Chauki) side with a stolen scooter and one of them had bomb in his possession, they stopped at Mannanpurva T-point (tiraha) and placed themselves aside to the north-east corner of temple. He has further deposed that meanwhile two persons were seen coming from Zarif police outpost, riding on scooter. They were stopped and asked for paper of their scooters but they did not show any document. On personal search of appellant-Qamar Alam two bombs from left pocket and two bombs from right pocket of his trouser were recovered. According to him each bomb was kept in tin box and wrapped with black tape. They were stopped and asked for paper of their scooters but they did not show any document. On personal search of appellant-Qamar Alam two bombs from left pocket and two bombs from right pocket of his trouser were recovered. According to him each bomb was kept in tin box and wrapped with black tape. No further description regarding weight and size of bomb was given by this witness in his statement as he has deposed as under:- ^^gkftj vnkyr us viuk uke dej vkye Fkkuk & csduxat dkuiqj uxj crk;k ftlds ikl ls fcuk uacj dh ,yŒ,eŒ,yŒ f'kysDV LdVwj feyh ftlls dkxtkr ryc fd, x, rks dksbZ Hkh dkxt ugha fn[kk ldk rFkk tkek ryk'kh yh xbZ rks igus gq, ik;tkes dh nkfguh tsc ls nks vnn fVu ds fMCcs ftu ij dkyk Vsi yxk gqvk rFkk ckbZ tsc ls Hkh nks vnn fVu ds fMCcs ftu dkyk Vsi yxk gqvk Fkk feys ftuds lEcU/k esa iwNk x;k rks dej vkye us crk;k dh ;g ce gS bUgsa eSa viuh lqj{kk ds fy, j[krk gawA vr% mu ceksa dks ,d fVu ds fMCcs esa ikuh Hkjok dj lqjf{kr fd;k x;kA** 13. S.I. Anil Kumar (P.W.-1) who was also present at the place of occurrence, in his statement regarding recovered bomb, has stated as under:- ^^mlus viuk uke dej vkye iq= eksŒ tQ+j fuoklh ghjkeu iqjok dkuiqj uxj crk;k mlds ikl tek ryk'kh esa iktkes dh nkfguh tsc ls nks ftUnk ce o nks ckbZ tsc ls nks ftUnk ce nslh cjken gq, Fks ce j[kus ds lEcU/k esa iwNk x;k rks mlus crk;k dh eSa viuh lqj{kk ds fy, j[kdj pyrk gawA xkfM+;ksa ds dkxt u fn[kk ikus ds dkj.k pksjh dh xkfM+;ka Árhr gqbZ xkfM+;ksa vkSj eqfYteksa o cjken ceksa dks Fkkus ys x, ceksa dks ekSds ij ikuh Mkydj Fkkus ys x, QnZ ,lŒvksŒ lkgc us cksydj gels fy[kkbZ FkhA** 14. Only these two witnesses have been produced by the prosecution in order to prove the recovery of bombs from the possession of appellant. In seizure memo (Ex.Ka-1) weight, measurement and size of recovered bombs are not mentioned. From perusal of the statement of these witnesses it is clear that the said recovered bombs were being carried by appellant in his pocket but their size, dimension and weight have not been established by the prosecution. In seizure memo (Ex.Ka-1) weight, measurement and size of recovered bombs are not mentioned. From perusal of the statement of these witnesses it is clear that the said recovered bombs were being carried by appellant in his pocket but their size, dimension and weight have not been established by the prosecution. S.I. Rajesh Kumar Tiwari (P.W.-2) has stated in his statement that the bombs were inside tin boxes whereas S.I. Anil Kumar (P.W.-1) has not stated that bombs were inside the tin boxes. In examination-in-chief he has stated as under:- ^^mlds ikl tkek ryk'kh esa iktkes dh nkfguh tsc ls nks ftUnk ce o nks ckbZ tsc ls nks ftUnk ce nslh cjken gq, FksA** He has also failed to disclose the weight, measurement, size of recovered bombs or tin boxes. He, in cross examination, has deposed as under:- ^^ceksa dk D;k vkdkj o Hkkj Fkk oks fVu ds fMCcs esa gksus ds dkj.k Hkkj ugha crk ldrk ce pkj fVu ds fMCcksa esa vyx&vyx FksA fMCcksa dh yEckbZ pkSM+kbZ bl le; ugha crk ldrk gawA QnZ esa ij fMCcksa dk dksbZ vkdkj ,oa ÅapkbZ ugha fy[kh gSA blfy, eSa nksuksa phts ugha crk ldrk fMCcs esa D;k fy[kk Fkk eq>s ugha ;kn gS u gh QnZ ij vafdr gSA** 15. Thus it is clear that the description of weight, measurement and size of bombs were neither mentioned in seizure memo (Furd) (Ex.Ka.1) nor has been stated by S.I. Anil Kumar (P.W.-1) or S.I. Rajesh Kumar Tiwari (P.W.-2). Failure to disclose the approximate weight, size and measurement of recovered bombs is fatal to prosecution story because in absence of weight, size and measurement of recovered bombs, how a prudent man can presume that whether the recovered bombs were liable to be kept and carried in trouser's pocket by appellant. 16. It is also pertinent to mention at this stage that as per prosecution case the said recovered bombs were kept in a tin box. 16. It is also pertinent to mention at this stage that as per prosecution case the said recovered bombs were kept in a tin box. S.I. Anil Kumar (PW-1) in his cross examination has stated as under:- ^^fMCcksa dks [kksydj eSaus ugha ns[kk fd bl ij D;k Fkk Lo;a dgk dh mudks ce LDokM [kksyrk gS dkuiqj esa iqfyl ce LDokM QkslZ gS tks ihŒ,ŒlhŒ esa gksrk gS T;knk cjken gksus ij lwpuk nh tkrh gS vkSj vkjŒMhŒ,DlŒ ;k gksVy vkfn esa ce dk irk yxkus ij rqjar cqyk;k tkrk gSA oSls ce cjken gksus ij rRdky ugha cqyk;k tkrk gSA eSaus blh dkj.k bl nLrs dks cqykus dh dksbZ vko';drk ugha le>h mudks ckn esa nLrs dks fjiksVZ bl lEcU/k esa Hksth xbZ FkhA D;ksafd ;g nLrk ckn esa ce dks u"V djrk gS vkSj ijh{k.k ds fy, Hkstrk gSA** 17. Neither the S.I. Anil Kumar (PW-1) nor the S.I. Rajesh Kumar Tiwari (PW-2) has deposed in their examination-in-chief that the recovered bombs were defused or disposed by them. S.I. Arun Kumar Shukla (P.W.-4) in his statement has deposed that the recovered bombs were sent for examination to Forensic Science Laboratory, Agra after defusing by bomb disposal squad. In examination-in-chief he has not stated as to when he had sent information regarding the disposal of recovered bombs to bomb disposal squad and when the bomb disposal squad had defused/disposed the recovered bombs. He has also not taken statement of any personnel of bomb disposal squad. In his cross-examination he further deposed as under:- ^^esjs lkeus ce fuf"Ø; ugha fd;k x;kA** 18. It is also pertinent to mention at this juncture that from perusal of forensic science laboratory report (Ex.Ka 8), it transpires that recovered bombs which were sent for examination to Forensic Science Laboratory, Agra, were found under the seal of "Shukla S.I. U.P.P." because in Ex.Ka 8 it has been mentioned as under:- ^^,d oL=ko`r leqfnzr (MONOGRAM SHUKLA S.I.U.P.P.) eqnzkuweukuqlkj c.My ftlesa fuEufyf[kr oLrq;s Fkh fnukad 9-10-2000 dks ÁkIrA** Neither S.I. Anil Kumar (P.W. 1) nor S.I. Rajesh Kumar Tiwari (P.W. 2) has stated that any police personnel whose sir name or title was 'Shukla', was present at the time of recovery. This case was investigated by S.I. Arun Kumar Shukla (P.W. 4) but he had said that recovered bombs were not disposed of in his presence. This case was investigated by S.I. Arun Kumar Shukla (P.W. 4) but he had said that recovered bombs were not disposed of in his presence. He has not stated anything in his statement as to how the sample, sent to Forensic Science Laboratory, Agra, was sealed by "MONOGRAM SHUKLA S.I.U.P.P.". Thus the latches on the part of prosecution to explain the presence of this seal creates a doubt regarding the identity of the recovered bombs as well as the veracity of prosecution evidence. 19. Const. Virendra Singh (P.W.-3) has deposed that he had carried the defused bombs (Case property) to Forensic Science Laboratory, Agra along with relevant papers and handed over there on 9.10.2000. From perusal of forensic science laboratory report (Ex.Ka-8) dated 4.12.2000, it transpires that only black tape, metal nails, stone pieces and grey colour powder, wrapped in a piece of newspaper, were sent to Forensic Science Laboratory, Agra for examination. No tin box was sent. If it was specific version of prosecution case that recovered bombs were kept in tin boxes then it was also the duty of prosecution to disclose as to when the recovered bombs were separated from tin boxes and why the tin boxes were neither sent to Forensic Scince Laboratory, Agra, nor produced before the Trial Court and what happened to the said tin boxes. Failure to send tin boxes to Forensic Science Laboratory, Agra as well as failure to produce them before the Trial Court makes the prosecution version doubtful that bombs were inside the tin boxes. 20. It is pertinent to mention at this juncture that as per deposition of S.I. Anil Kumar (PW-1) and S.I. Rajesh Kumar Tiwari (PW-2) recovered bombs were placed in tin boxes which were wrapped with black tape and were carried by the appellant. These two witnesses are not forensic science experts. As per prosecution version they came to know that recovered articles (tin boxes) were bombs only on the statement of appellant - Qamar Alam. S.I. Rajesh Kumar Tiwari (PW-2) in his examination-in-chief has specifically deposed that when the appellant was asked regarding the said articles (tin boxes) he told them that these were bombs which he carried for his safety. 21. Section 25 of the Evidence Act, 1872 specifically provides as under:- "25. S.I. Rajesh Kumar Tiwari (PW-2) in his examination-in-chief has specifically deposed that when the appellant was asked regarding the said articles (tin boxes) he told them that these were bombs which he carried for his safety. 21. Section 25 of the Evidence Act, 1872 specifically provides as under:- "25. Confession to police officer not to be proved No confession made to a police officer shall be proved as against a person accused of any offence." Thus the confessional statement of appellant made before these police personnel, is not admissible in evidence. The identity of articles recovered from the possession of appellant, is not same as the article sent to Forensic Science Laboratory, Agra for chemical examination. Prosecution has also failed to produce any evidence regarding as to who opened the tin boxes and before whom the explosive substances were found in these tin boxes. Prosecution was also not able to establish whether whole substance or only part of it i.e. sample was sent to the Forensic Science Laboratory, Agra for examination. 22. It is further pertinent to mention at this stage that in seizure memo (Ex.Ka.1) it has been mentioned that the seizure memo was prepared at 8.25 p.m. in the light of torch and electric bulb. S.I. Anil Kumar (P.W.-1) in his examination-in-chief has not deposed anything regarding the availability of any light, torch or electric bulb whereas S.I. Rajesh Kumar Tiwari (P.W.-2) has stated that the seizure memo was prepared in the light of torch and electric bulb. In site plan (Ex.Ka-3), neither any electric pole nor any electric bulb has been shown and only an electric transformer has been shown near the place of arrest of appellant. S.I. Arun Kumar Shukla (PW-4) neither inspected the torch in which light the seizure memo (Ex.Ka-1) was written nor taken it in his custody. No torch was produced before the trial court to prove source of light for preparing the seizure memo (Ex.Ka-1). In his cross-examination he has stated that he had not written anything regarding transformer in site plan. Thus prosecution has failed to prove the source of light and failure to prove the source of light in this case, makes the prosecution case highly doubtful. 23. In his cross-examination he has stated that he had not written anything regarding transformer in site plan. Thus prosecution has failed to prove the source of light and failure to prove the source of light in this case, makes the prosecution case highly doubtful. 23. In the light of above discussions, I am of the view that the evidence produced by the prosecution is not reliable and prosecution has failed to prove its case against the appellant beyond reasonable doubt. Thus the impugned judgment and order dated 3.9.2003 whereby the appellant has been convicted under Section 5 of Explosive Substances Act, is not legal and deserves to be set aside. 24. Consequently, the appeal succeeds and is allowed. The impugned judgment and order dated 3.9.2003, passed by Addl. District and Sessions Judge, Fast Track Court No. 3, Kanpur Nagar in Session Trial No. 100 of 2003 (State of U.P. Vs. Qamar Alam), whereby the appellant- Qamar Alam has been convicted under Section 5 of Explosive Substances Act, is hereby set aside. The appellant is on bail, he is not required to surrender. Bail bonds and sureties, submitted by him during appeal stand discharged. 25. However, the appellant is directed to execute the personal bond with sureties as required by Section 437-A CrPC of the amount fixed by CJM/Court concerned. 26. Let a copy of this judgment along with lower court record be sent to concerned CJM/District Judge with immediate effect for compliance.