(1) The appellant, who was the sole accused in s. C. No. 397 of 1999 on the file of the additional sessions court, fast track (ad hoc - i) , kozhikode, challenges the conviction entered and the sentence passed against him by the said court for an offence punishable under section 9 (b) (1) (b) r/w section 5 of the explosives act, 1884.
(2) The case of the prosecution can be summarised as follows: on 23 - 5 - 1994, at about 4 p. M. , p. W. 1, the circle inspector of police, balussery received a credible secret information to the effect that explosive substances were unlawfully stocked in chembottu house bearing building no. 1/140 of naduvannur panchayat belonging to the accused. Immediately after preparing a search memorandum, p. W. 1 along with his police party including the a. S. I. (p. W. 2) , proceeded to the said house and reached there at 5 p. M. The house was found locked. The house was opened using a key handed over by p. W. 5 (ibrahim) , the elder brother of the accused. On searching the house, 42 gelatin articles, 300 detonators, 35 rolls of safety fuses and 40 kgs. Of diesel salt consisting of ammonium nitrate were found kept towards the western side of the kitchen room. The aforesaid explosive articles were seized under ext. P - 2 search list to which p. Ws. 3 and 4 affixed their signatures as independent witnesses. 4 sets of samples were taken from the gelatin sticks, ammonium nitrate, detonators and safety fuses. The samples were forwarded to the chief controller of explosives, emakulam for analysis through court. As per ext. P - 7 certificate issued by the deputy chief controller of explosives the samples were found to be explosive substances. As per ext. P - 12 ownership certificate issued by the secretary, naduvannur grama panchayat, the accused was found to be the owner of the aforesaid house. Since the accused was found in possession of explosives in contravention of the rules made under section 5 of the explosives act, 1884, he has committed an offence punishable under section 9 (b) (1) (b) of the explosives act, 1884. Since the accused was also found to be knowingly in possession of the aforesaid explosive substances giving rise to a reasonable suspicion that he was not in possession of the same for any lawful object, he has committed an offence punishable under section 5 of the explosive substances act, 1908.
(3) On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 10 witnesses as p. Ws. 1 to 10 and got marked 13 documents as exts. P - 1 to p - 13.
(4) After the close of the prosecution evidence, the accused was questioned under sec. 313 (1) (b) cr. P. C. With regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He submitted that he was permanently residing in his wife'shouse and that no explosives had been stocked in the house in question and that he has absolutely nothing to do with this case.
(5) As this was not a case of no evidence for the prosecution, the learned additional sessions judge did not record an order of acquittal under section 232 cr. P. C. The appellant did not adduce any defence evidence when called upon to enter on his defence.
(6) The learned additional sessions judge, after trial, as per judgment dated 27 - 6 - 2003 acquitted the appellant of the offence punishable under section 5 of the explosive substances act, 1908, but convicted him of the offence punishable under section 9 (b) (1) (b) of the explosives act, 1884. For the said conviction, the appellant was sentenced to undergo rigorous imprisonment for one year and to pay a fine of rs. 2000 and on default to pay the fine, to suffer simple imprisonment for one month. It is the said judgment which is assailed in this appeal.
(7) I heard adv. Sri p. V. Kunhikrishnan the learned counsel appearing for the appellant and adv. Sri jayasurya, the learned public prosecutor.
(8) The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not.
(9) P. W. 1 (t. Ramarajan) was the circle inspector of police, balussery police station, who detected the offence. P. W. 2 (r. Balakrishnan) was the a. S. I, of police who accompanied p. W. 1. P. Ws. 3 and 4 (rajan and o. V. Hameed) were the independent witnesses to ext. P - 2 search list prepared by p. W. 1. Both of them turned hostile to the prosecution. P. W. 5 (ibrahim) is the brother of the accused. He also did not support the prosecution and ext. P - 1 series are his case diary contradictions. He admitted that he has a licence to sell crackers. P. W. 6 (abdu rahaman) was a witness to ext. P - 11 scene mahazar. P. W. 7 (chandran) was the secretary of naduvannur grama panchayat. He proved ext. P - 12 ownership certificate. P. W. 8 (ramachandrah) was the sub inspector of police, balussery who conducted the investigation. He proved ext. P - 11 scene mahazar. P. W. 9 (c. T. Tom) who was the sub inspector of police, obtained ext. P - 13 sanction under section 7 of the explosive substances act, 1908. P. W. 10 (k. Balakrishnan) who was the sub inspector of police laid the charge.
(10) After hearing both sides in detail and after a careful re - appraisal of the oral and documentary evidence, i am of the view that the prosecution has not succeeded in bringing home the guilt of the accused beyond reasonable doubt.
(11) Both under section 5 of the explosive substances act, 1908 as well as section 9 (b) (1) (b) of the explosives act, 1884 the common ingredient to be proved by the prosecution is the possession of explosive substances. The learned public prosecutor contended that under section 9 (b) (1) (b) of the explosives act, mere possession alone need be proved whereas under section 5 of the explosive substances act what is to be proved is not merely possession but possession with the knowledge that the same is for an unlawful object.
(12) The word "possession'' occurring in almost every penal statutes such as the ndps act, 1985, opium act, 1878, arms act, 1959, explosive substances act, 1908 has been interpreted to mean "conscious possession" [see moideen koya v. State of kerala, 1990 2 kerlj 145; inder sain v. State of punjab, air 1973 sc 2309; superintendent and remembrance of legal affairs, west bengal v. Anil kumar bhunja, air 1980 sc 52; state of bihar v. Amir hasan, air 1951 pat 638]. Even according to p. W 1, the detecting officer, the house in question was opened with a key furnished by p. W. 5, the brother of the accused p. W. 5 has no case that the house belongs to or is in the possession of his brother, the accused. Going by ext. P - 12 ownership certificate, marked through p. W. 7, secretary, naduvannur grama panchayat, all that the prosecution has got established is that the house in question belongs to the accused. When the possession is the core ingredient to be established before the accused can be convicted under seciion 9 (b) (1) (b) of the explosives act, mere proof of ownership of the house in question does not take the prosecution anywhere. [see inder sain v. State of punjab, 1973 2 scc 372]. In avtar singh and others v. State of punjab, air 2002 sc 3343, the apex court observed as follows:
"the word 'possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods."
When p. W. 5 who admittedly gave the key of the house in question to p. W. 1 (the detecting officer) has no case that it was the accused who was in possession and control over the articles found in the house in question, merely because the accused is shown to be the owner of the house in ext. P - 12 certificate, it does not follow that the accused was in possession of all the articles including the contraband explosives found inside the house, particularly when p. W. 5, the brother of the accused was the person who was found to have possession and control of the house. Even in a case where contraband liquor was seized from a box found in the house belongingto the husband and the box was opened with the key furnished by the wife, this court acquitted the husband of the offence punishable under section 8 of the travancore cochin prohibition act, 1950. Reliance placed by the prosecution on section 27 ipc was held to be of no avail to the prosecution to secure a conviction against the husband. In that case both the husband and wife were prosecuted for the said offence and the wife was acquitted by the trial court and the husband was acquitted by this court [see sukumaran v. State of kerala, 1961 0 kerlt 584]. Thus, when the prosecution has failed to establish that the accused was in possession (leave alone conscious possession) of the house in question or the articles found in the house, the court below was not justified in convicting the accused of the offence punishable under section 9 (b) (1) (b) of the explosives act. It is pertinent to note that while acquitting the appellant, of the offence under section 5 of the explosives substances act, 1908 the court below has even observed that the prosecution has failed to establish that the accused kept or possessed the explosive substances for any unlawful object. \vhen the most important ingredient of the offence punishable under section 9 (b) (1) (b) of the explosives act has not been established, the conviction of the appellant for the said offence cannot legitimately be supported.
(13) There are other circumstances also which go to show that the conviction of the appellant cannot be sustained. Ext. P - 2 is the contemporaneous search list prepared by p. W. 1 allegedly at the time of detection, search or seizure. What is recited in ext. P - 2 is that out of the 42 galatin sticks obtained from the house, 3 galatin sticks were taken as samples, out of the three boxes each containing 100 detonators, 6 detonators were taken as samples, out of the 35 rolls of safety fuses found, he has taken 3 safety fuses as samples and out of the 40 kg. Of diesel salt (that is ammonium nitrate) , he has taken 30 gms. As samples. But going by ext. P - 4 property list showing the details of the properties received by the j. F. C. M. , koyilandy the properties which were produced before the court were 2 sealed packets each containing one gelatin stick, 2 sealed packets of ammonium nitrate each weighing 10 gms. , 2 sealed packets each containing 2 detonators and 2 packets each containing one safety fuse. There is no explanation as to what happened to one of the three samples of gelatin sticks, 2 out of the 6 samples of detonators, 1 out of the three samples of safety fuses and 10 gms. Out of 30 gms. Of diesel salt which was taken as samples by p. W. 1. Ext. P - 7 is the certificate dated 12 - 9 - 1995 issued by the deputy chief controller of explosives, ernakulam which was marked through p. W. 1. It shows that one sealed packet containing 4 separate packets was received by the chief controller of explosives on 14 - 6 - 1994 from the j. F. C. M. , koyilandi. Each of the 4 packets found in that sealed packet contained 2 items. Item no. 1 contained 2 gelatine sticks which were found to be high explosives belonging to class 3 of division 1 of schedule i of explosive rules, 1983. Item no. 2 contained two packets each of 10 gms. Of a white crystalline substance identified as ammonium nitrate which by itself is reported to be not an explosive. Item no. 3 contained 2 ordinary detonators. Item no. 4 contained 2 rolls of safety fuses which were found to be an explosive belonging to class 6, division 1 of schedule i of the explosives rules, 1983. What is mysterious about in ext. P - 7 certificate is that it states that on 11 - 7 - 1995, the deputy chief controller of explosives took possession of 40 gelatin sticks, 35 rolls of safety fuses and 98 detonators and destroyed the same. When altogether there were only 42 gelatin sticks seized under ext. P - 2 of which 3 had been taken as samples and 2 of them reached the court, it is not known as to how the expert could destroy 40 gelatin sticks on 17 - 7 - 1995. Likewise, when altogether 3 5 rolls of safety fuses alone were seized under ext. P - 2 and three of them had been taken as samples, it is not known as to how the expert could destroy all the 35 rolls of safety fuses on 19 - 7 - 1995. Going by ext. P - 2 search list there were altogether 300 detonators of which 6 were taken as samples and 4 alone reached the court. But what deputy chief controller of explosives claims to have destroyed on 17 - 7 - 1995 is 98 detonators. There is no explanation as to what happened to the balance 196 detonators. Still more surprising is the fact that the prosecution has produced ext. P - 6 certificate of chemical analysis dated 29 - 4 - 1995 issued by the regional chemical examiner's laboratory, kozhikode. The said certificate recites that the chemical examiner received one sealed packet from the controller of explosives, ernakulam and the contents of the said packet on analysis was found to be containing radicals of ammonium, pottassium and nitrate. If the chief controller of explosives, ernakulam had exhausted both the samples of diesel salt marked as item no. 2 in ext. P - 7 certificate, it is not explained as to how the regional chemical examiner received a sample of the same salt from the controller of explosives, ernakulam. There is no evidence to show whether the controller had sent any portion of the samples received by him from j. F. C. M. , koyilandi to the regional chemical examiner, kozhikode. The quantity of the sample despatched to regional chemical examiner is not also mentioned in ext. P - 6 certificate. There is, therefore, no link evidence to show that the sample which was tested by the regional chemical examiner, kozhikode was either the sample or some portion thereof taken under ext. P - 2 search list.
(14) There is yet another circumstance which renders unsustainable the conviction recorded by the court below. The first question put to the accused during his examination under section 313 (l) (b) cr. P. C. Reads as follows: in the first place, the court below ought not to have put such a complicated and involved sentence in the form of a question in which several incriminating circumstances have been rolled into one (vide state of kerala v. Aboobeckar - 2006 k. H. C. 1026). Second ly. Even with regard to ext. P - 12 ownership certificate proved by p. W. 7 (the secretary of naduvannur grama panchayat) and ext. P - 13 sanction under section 7 of the explosive substances act, 1908 the only question put to the accused was as follows: this was not the way to bring the attention of the accused to the incriminating circumstances appearing in the evidence for the prosecution. The explanation of the accused ought to have been elicited with regard to ext. P - 12 ownership certificate which showed that the accused was the owner of the house in question. Likewise the attention of the accused ought to have been invited to ext. P - 13 sanction under section 7 of the explosive substances act. Ext. P - 13 was wrongly mentioned as ext. P - 3. What is more important is that no question was put to the accused to the effect that any of the explosives substances were seized from the possession of the accused or that the accused was found in possession of any of those explosive substances. In fact, a finding that he was in conscious possession of those explosive substances based on reliable material was absolutely necessary. No such finding has been entered by the court below. The conviction entered and the sentence passed by the court below overlooking the above vital aspects cannot, therefore, be sustained and are accordingly dislodged. The appellant is found not guilty of the offence punishable under section 9 (b) (1) (b) of the explosives act, 1884 and is accordingly acquitted thereunder. He shall be set at liberty forthwith. In the result this appeal is allowed as above.