M.L. Visa, J.
1. Criminal Appeal No. 99 of 1997 preferred by appellants Md. Saud Alam and Md. Tabrez and Criminal Appeal No. 136 of 1997 preferred by sole appellant Md. Salahuddin arise out of the same judgment dated 7.2.1997 and order dated 14.2.1997 passed by 2nd Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 53/95 and therefore, both the appeals have been heard together and are being disposed of by this common order.
2. All the three appellants have been convicted and sentenced to undergo RI for 14 years each under Section 5 of the Explosive Substance Act.
3. The case of prosecution as disclosed in the fardbeyan of informant, SI Lallan Singh (not examined), in short is that on 3.5.1994 informant was posted as Sub-Inspector-cum-Officer Incharge of Mojahidpur Police Station within the district of Bhagalpur and on the night between 2.5.1994 and 3.5.1994 at about 3 O'clock he received information at police station from confidential sourses that appellant Salahuddin, an accused of Mojahidpur Police Station Case No. 82/93 under Sections 120B/123/124A. 153A and 153B read with Sections 436, 302 and 307 of the Indian Penal Code after remaining absconding for a considerable time had come to his house and if immediate action was not taken he may again abscond. The informant recorded this information in Station Diary Entry No. 50 dated 3.5.1994 and informed to his senior officers about this fact on telephone and requested the Officer-in-charge of Nath Nagar Police Station for co-operation and he along with SI Devendra Prasad Singh (PW-10) and SI Gopal Paswan (PW-13) and some armed home-guards proceeded for the house of appellant Salahuddin where he reached at about 3.30 a.m. and thereafter got the house of appellant Salahuddin surrounded from all sides, in the meantime, from Nath Nagar Police Station its Officer-in-charge Oman Topno (PW-11), SI Yogeshwar Yadav (PW-8) SI Dhrub Singh (PW9), Hawildar Chaturbhuj San along with some constables reached there and co-operated the informant in surrounding the house of appellant Salahuddin. Since the appellant Salahuddin was an active member of ISI trained by Pakistan, local witnesses out of fear were unable to speak anything against him therefore, informant called two independent witnesses namely, Md. Amiruddin (PW-6) and Mansoor Alam (PW-5) from neighbouring Mohalla named Badre alampur. Thereafter at about 6.45 a.m. informant in presence of the aforesaid two independent witnesses by giving his identity asked the appellant to open the door of his bed room which was closed from inside but in spite of repeated calls of informant it was not opened first but any how about 5-6 minutes thereafter the door was opened. The informant following the rules of house search entered the room where he found a man standing frightened in the corner and on being asked he disclosed his name as Md. Salahuddin. The informant in presence of witnesses recovered four detonators with orange coloured wire kept in a hand-bag, four-iron pipes each of the length of 12' and diameter of 2', 500 gms. substance like explosive kept in a plastic bag, six barrels of country made pistol out of which four were of the length of 14' each and remaining two were of the length of 9' each, iron plates and one had blade from his room. Appellant Md. Salahuddin did not produce any paper for the articles recovered from his room and could not give satisfactory answer for keeping those articles. The informant seized the articles and in presence of witnesses prepared seizure list and handed over a copy of the seizure list to appellant Salahuddin who also put his signature on the seizure list. On further inquiry appellant Md. Salahuddin confessed his guilt and admitted that he was an active member of Pakistan trained organisation ISI and he disclosed the names of the other companions which included appellants Md. Saud Alam and Md. Tabrez and also disclosed that he and his companions had purchased explosive substance from Md. Shamsher and those articles were kept in the house of appellants Md. Saud and Md. Tabrez and they all were waiting for the instructions of ISI for using those materials in India. On the basis of this informant the informant along with other police officials went to the house of Md. Saud situated in Mohalla Badre-alampur and search his house in presence of independent witnesses and found 26.5 kg of explosive substance in a plastic bag which was kept beneath the bed of appellant Md. Saud. He also prepared seizure list for this seizure and handed over a copy of the seizure list to appellant Md. Saud. Thereafter, the informant and his companions went to the house of Md. Tabrez and searched his house from where they recovered three plastic bags one containing 30 Kgs of white explosive substance and another containing 31 kgs of explosive substance and the third bag containing 6 kgs of black explosive substance. The informant prepared a 'seizure list for this seizure and handed over a copy of seizure list to appellant Md. Tabrez. On the basis of self written statement of informant a case against the appellants and seven others under Sections 120B/123/124A/153A/153B of the Indian Penal Code, 4/5 of Explosive Substance Act and 25/35 of Arms Act. After investigation police submitted charge sheet against the appellants and three co-accused persons namely, Md. Shamsher, Md. Surf @ Md. Gulam and Gayanand Mandal under Sections 120B/123/124A/153A/153B/307 Indian Penal Code, 4/5 of Explosive Substance Act, 25/35 Arms Act and 3/4/5 TADA Act and they were put on trail. After trial the present three appellants were found guilty under Section 5 of Explosive Substance Act and they were accordingly convicted and sentenced to undergo RI for 14 years each. They were not found guilty under Sections 353/307/120B/123B/124A/153A Indian Penal Code. Other three co-accused persons who were tired along with appellants were not found guilty and they were acquitted.
4. The case of appellants before the Court below as it appears from the trend of cross-examination of prosecution witnesses is their complete denial of charges and their false implication in this case.
5. Altogether 18 witnesses on behalf of prosecution Have been examined in this case. Sahabuddin (PW-1), Md. Taslim (PW-2) Md. Habib (PW-3), Md. Chand (PW-4) and Abdul Hassan (PW-7) have not supported the case of prosecution and they have been declared hostile. Md. Mansoor Alam (PW-5) and Md. Amiruddin (PW-6) are said to be independent witnesses in those presence houses of appellants were searched. Md. Mansoor Alam (PW-5) in his evidence no doubt has proved his signatures (Ext. 1, 1/1 and 1/2) on the seizure lists which were prepared when some articles are said to have been seized from the houses of appellants but he has said that neither the seizure list was prepared nor any this Court was recovered in his presence. Similarly Md. Amiruddin (PW-6) has also proved his signatures (Ext. 1/3, 1/4 and 1/5) on seizure lists said to have been prepared at the lime of seizure of articles from the houses of appellants but has clearly stated that house of appellants were not searched in his presence. These two witnesses have also been declared hostile. Hassanuddin Khan (PW-14) is a formal witness who has proved sanction for prosecution of appellants under Section 153B of Indian Penal Code typed and filled up by him and under the signature of Arun Kumar Singh, the then District Magistrate, Bhagalpur(Ext. 7). He has also proved carbon copy of another sanction of prosecution typed and filled up by him along with original by carbon process and under the signature of Arun Kumar Singh, the then District Magistrate, Bhagalpur, for prosecution of appellant under the provisions of Explosive Substance Act (Ext. 8). Nand Kishore Mandal (PW-17) is also a formal witness who has proved the written report (Ext. 10) in the pen and signature of informant Lalan Singh and formal FIR (Ext. 11) in the pen of Nand Kishore Sah, the then officer-in-charge of Jagdishpur Police Station. Navin Kumar (PW-18) has said that informant Lalan Singh died in the year 1995 and in the year 1994 he was officer-in-charge of Muzahidpur police station. Ram Ash Dubey (PW-15) is a tendered witness. Constable Anil Kumar Singh (PW-16) produced seized articles in Court which are marked Material Exts. I to XV. Jay Shanker Singh (PW-12) has said that on 12.7.1994 he was posted as officer-in-charge of Habibpur Police Station and on that day he was given the charge of investigation of this case and he started investigation and on 17.7.1994 he filed a requisition in the Court of CJM, Bhagalpur, for remanding co-accused Lal Babu @ Lal Mohammad who was at that time in jail in an another Central Crime Station Hyderabad P.S. Case No. 151/93 and sent Constable Panchanand Singh to Forensic Science Laboratory, Patna for bringing the report which was brought on 28.7.1994 and detail of which is mentioned in para 142 of case diary of the present case. He has proye signatures of Y.K. Sinha (Exts. 2 and 2/1) on two reports) and has also proved his letter (Ext. 3) which he had sent to Sergeant Major, Bhagalpur for examination of recovered iron pipes and he has also proved the endorsement of Sergeant Major (Ext. 4). He has further proved the sanction report (Ext. 5) for prosecution under the provisions of Arms Act which is under the signature of the then District Magistrate Arun Kumar Singh and has further said that he submitted charge-sheet against the appellants keeping the investigation continuing against other persons. In cross-examination he has admitted that he neither recorded the statement of witnesses nor he visited the place of occurrence.
6. Yoghswar Yadav (PW-8), Dhrub Singh (PW-9), Devendra Prasad Singh (PW-10), Oman Topno (PW-11) and Gopal Pawan (PW-13) are all police officials who according to the prosecution had raided the houses of appellants and had recovered explosive substances from their houses. Yogeshwar Yadav (PW-8) in his evidence has stated that on 3.5.1994 he was posted as SI at Nathnagar Police Station and on that day in the morning on the basis of a telephonic message from Muzahidpur Police Station he along with Oman Topno (PW-11) who was at that time Sub-Inspector-cum-officer-incharge of Muzahidpur Police Station, SI Dhrub Singh (PW-9) and force of BMP went to the house of appellant Salahuddin where he found informant Lalan Singh present there and in the search of the house of appellant Salahuddin four detonators, four iron pipes and a 'Dibba' containing 500 gms of explosive substance and some articles for manufacturing revolvers were recovered and search was made |n presence of two witnesses and seizure list was prepared which was signed by informant and witnesses. He has further said that there after the house of appellant. Sound was searched in presence of witnesses and 26 kgs of explosive substance was recovered and seizure list was prepared and thereafter house of appellant Tabrez was also searched and from his house 30 kg of white colour explosive substance kept in a plastic bag and 31 kg of white colored explosive substance kept in another bag and 6 kg of black coloured Explosive substance kept in third bag were recovered and seizure list for these articles was also prepared. According to him all the appellants and 3-4 others are active members of ISI and had received training from Pakistan and had kept explosive substance for committing some crime in conspiracy. In cross-examination he has admitted that the does not remember whether at the time of search of the house of appellant Salahuddin other male or female members of his family were present there or not but the house which was searched was surrounded from all sides. He has said that telephonic message was received by Oman Topno (PW-11). He has further admitted that he has not seen any document of ISI and on confidential information he came to know that appellants were members of ISI. He has admitted that he is not a chemical expert and he cannot say the names of materials recovered from the houses of appellants and has further admitted that those materials were not before him at the time of giving his evidence. Dhrub Singh (PW-9) has said that on 3.4.1994 he was at Nathnagar Police Station and on that day in the morning informant made a telephonic call which was received by Oman Topno and thereafter he along with Oman Topno and SI Yogeshwar Yadav (PW-7) went for raiding the houses of appellants and first of all they raided the house of appellant Salahuddin from whose house four detonators and articles of manufacturing bombs were recovered and besides this, other articles were also recovered and seizure list was prepared. According to him, thereafter house of appellant Soud was searched and from whose house 26 kg. wet powder and another articles were seized and seizure list was prepared and thereafter they raided the house of appellant Tabrez and from whose house 30 kg. white powder kept in a bag and other articles were recovered and seizure list was also prepared. Devendra Prasad Singh (PW-10) has said that on 3.5.1994 houses of appellants were searched in presence of two independent witnesses and from the house of appellant Salahuddin four detonators, explosive substance kept in a bag and articles for manufacturing pistols, from the house of appellant Tabrez, power of explosive substance and from the house of one another co-accused explosive substances were recovered.
7. Oman Topno (PW-11) in his evidence has said that on 3.5.1994 he was posted as Incharge of Nathnagar Police Station and on that day at about 3 a.m. he received information on telephone by informant Lalan Singh, the then officer incharge of Muzahidpur Police Station that a notorious criminal Md. Salahuddin had come to his house in Shahjangi and sought his co-operation and he thereafter recording this information in the Station Diary along with PWs.8 and 9 proceeded for Shahjangi where, he reached at about 3.30 a.m. and found the informant had already surrounded the house of appellant Salahuddin and attempts were being made for getting the door of house of Md. Salahuddin opened. In the meantime, two witnesses were made available and at about 4.45 a.m. the door of the house of appellant Salahuddin opened and search in the house was made in which 4 detonators kept in a plastic bag, 500 gms of powder of explosive substance, articles for manufacturing country made pistols and some pipes were recovered and seizure list was prepared. Thereafter the raiding party went to Kabirpur Naya Tola where they searched the house of appellant Md. Saud and in that search abut 26 kgs of explosive substance kept in a bag was recovered and in the same Mohalla the house of Md. Tabrez was also searched and from whose house three bags one containing 30 kgs. another containing 31 kgs. and the third one containing 6 kgs of explosive powder were recovered.
8. In this case all the appellants have been charged under Sections 120B, 123, 124A, 153A, 153B and 307 IPC, 25 and 35 Arms Act and Sections 4/5 of Explosive Substance Act. After trial the appellants were found guilty only under Section 5 of the Explosive Substance Act and for other charges they were not found guilty.
9. As stated earlier, the two independent witnesses namely Md. Mansoor Alam. (PW-5) and Md. Amiruddin (PW-6), in whose presence, as per the case of prosecution, houses of appellants were searched have not supported the case of prosecution about the recovery of explosive substance from the house of appellants and they have been declared hostile. In Fardbeyan (Ext. 10) it is stated that because of the fear of appellants local witnesses were not in a position to come forward against them, therefore, the informant had called the aforesaid two witnesses from neighbouring Mohalla named as Badre-alampur but still we find that these witnesses have not supported the case of prosecution and they have been declared hostile. Other witnesses who have stated about the recovery of explosive substances from the houses of appellants are all police officials. We are quite aware of the fact that if the seizure list witnesses do not support the case of prosecution the entire case cannot be disbelieved but then if all other witnesses on the point of recovery are police officials in that case their evidence has to be scrutinized cautiously.
10. Yogeshwar Yadav (PW-8) has said that from the house of appellant Md. Salahuddin four detonators, four pipes and a 'Dibba' containing 500 gms of explosive substance were recovered. Dhrub Singh (PW-9) on the point of recovery of articles from the house of appellant has said that four detonators and iron articles for preparing guns were recovered and besides this, some other articles were also recovered. He has not said like PW-8 about recovery of any explosive substance kept in a 'Dibba' from the house of appellant Salahuddin. Devendra Prasad Singh (PW-10) has said that explosive substance which was recovered from the house of appellant Salahuddin was found kept in a bag. He does not say that it was a 'Dibba'. About appellant Md. Saud PW-8 has said that from his house 26 kg. of explosive substance, was recovered but he has not given the details of container in which this substance was found kept whereas PW-9 has said that from the house of appellant Saud 26 kgs wet powder and some other articles were also recovered. PW-10 has not named appellant Md. Saud and has simply said that besides the house of appellants Salahuddin and Tabrez house of one more person was searched whose name he does not know and from whose house explosive substance was recovered. About appellant Md. Tabrez PW-8 has said that from his house three bags, one containing 30 kg., another containing 31 kgs and third one containing 6 kg of explosive substance were recovered whereas PW-9 has said that white powder like substance kept in a bag and other articles were recovered from the house of appellant Tabrez and he has not said that 3 bags containing 30 kg, 31 kg and 6 kg of explosive substance were recovered from his house. PW-10 has simply said that powder of explosive substance was recovered from the house of appellant Tabrez. He has not given the details about the bag or container etc. for this powder like substance.
11. The prosecution in this case has come up with specific weight of the explosive substances said to have been recovered from the houses of appellants and Oman Topno (PW-11) in para 13 of his evidence has said that recovered articles were weighed in his presence but he does not name the person who weighed the articles and also does not remember from where the weighing scale was brought and has said that weighing scale was not seized. No other prosecution witnesses has said that the articles recovered were weighed in his presence. On the contrary PW-8 in his evidence has said that he did not get the recovered articles weighed and no measurement of articles was made in his presence. Gopal Pawan (PW-13) in para 8 of his cross-examination has admitted that the houses where raid was conducted come within the area of sub police station, Habibpur of Jagdishpur police station and the posting of officer incharge was there but in the raiding party no officer from Habibpur police station was included.
12. Constable No. 881 Anil Kumar Singh (PW-16) brought some articles said to be recovered from the houses of appellants and seized from Malkhana of Habibpur Police Station and produced before the trial Court. He has admitted that in joined the Habibpur police station in the month of August, 1995, meaning thereby that much after the seizure of articles. He has further admitted that the articles were given to him by officer Incharge of Habibpur Police Station after taking out from the Malkhana for production before the Court and he does not know from where those articles were recovered. All the prosecution witnesses who according to the prosecution were in raiding party and in those presence the articles were recovered from the houses of appellants in their evidence have clearly said that the articles recovered from the houses of appellants and seized were not before them at the time of their giving evidence before the Court.
13. In these appeals the moot question is recovery of articles from the houses of appellants but none of the prosecution witnesses has come up to identify the articles deposing that those articles were seized from the houses of appellants or from the house of any one of them. By merely producing some articles from a police Malkhana and saying that those articles were related to present case, the appellants cannot be hastened with the liability of keeping those articles in their possession where there is not a single witness who after identifying the articles has deposed that those articles were recovered from the possession of appellants, particularly when case of appellants is that they have been falsely implicated in this case and nothing was recovered at any time from their houses and from their conscious possession. In order to prove the nature of articles seized and said to have been recovered from the houses of appellants the prosecution is relying upon a report of Forensic Science Laboratory, Bihar, Patna, which is marked (Ext. 9). The document shows that in connection with this case five sealed tin 'Dibbas' marked A to E said to contain detonator and explosive substance were sent for examination. About tin 'Dibbas' marked B and D the report shows that gray powder substance kept in tin Dibbas was found to be explosive mixture of Aluminium, Sulphur and Potassium Nitrate which is commonly used in preparing fire works and sometimes in bombs and powder substance kept in tine 'Dibba' marked C was found to be Potassium Chlorate which is specified as ingredients of ammunition and powder substance kept in tin 'Dibba' marked E was found to be Sulphur which is also specified as ingredients of ammunition. It was only an Aluminium tube kept in tin 'Dibba' marked A which was found to be electric detonator consisting a base charge of Pentaerythritol tetranitrate (PETN) along with a priming charge of Lead Azide, Lead Styphnate and Aluminium and according to this report detonator is high explosive used in blasting main explosive charge. From this report it appears that an aluminium tube in tin 'Dibba' marked A along with other samples was sent for examination of Forensic Science Laboratory and aluminium tube was found to be an electric detonator. The case of prosecution is that four detonators were recovered from the house of appellant Salahuddin. It is no where the case of prosecution that an aluminium tube looking like detonator was recovered from the house of appellant Salahuddin. Besides this the articles produced in Court by Anil Kumar Singh (PW-16) from Malkhana of Habibpur Police Station said to be the articles seized in this case do not include any aluminium pipe containing detonator and on the contrary he produced four detonators with orange coloured wires. The seizure list (Ext. 6) which is said to have been prepared after recovery of articles from the house of appellant Salahuddin also shows that apart from four iron pipes, 500 gms powder like substance and articles for manufacturing country made pistols, four detonators attached with orange coloured wires kept in a bag were recovered. The seizure list does not show recovery of any aluminium pipe. Notwithstanding of these facts there is no evidence on behalf of prosecution that samples from articles said to have been recovered from the houses of appellants were kept in tin 'Dibbas' and those 'Dibbas' were armed Exts. A to E and were sent to Forensic Science Laboratory for examination. In this view of the matter we find it difficult to hold that report of Forensic Science Laboratory (Ext. 9) is in respect of articles said to have been recovered from the houses of appellants. So we find that in this case prosecution has not been able to establish the identity of articles said to have been recovered from the houses of appellants and it has also failed to bring on record any material to show that samples of articles said to have been recovered from the houses of appellants were sent to Forensic Science Laboratory for examination.
14. In view of the aforesaid facts we find it difficult to sustain the order of the Court below convicting and sentencing the appellants who have been found guilty only for the allegation of recovery of explosive substances from their houses.
15. In the result, these appeals are allowed and judgment and order of the Court below convicting and sentencing the appellants is hereby set aside. Appellants Md. Salahuddin and Md. Saud who are on bail are discharged from the liability of their bail bonds. Issue release order for appellants Md. Tabrez at once for his release from jail custody if not required in any other case.
B.K. Jha, J.
I agree.