Mohammad Rafiq, J.
1. This appeal has been preferred by the accused-appellant against the judgment dated 10.7.1987 passed by the learned Additional Sessions Judge, Bundi whereby he was convicted for offence under Section 5 of the. Explosive Substance Act, 1908 and sentenced to undergo for rigorous imprisonment of five years with a fine of Rs. 500/- with the stipulation that in the event of default for making payment of fine, he shall have to further undergo rigorous imprisonment for six months.
2. A first information report was lodged by one Bherulal, Constable with Police Station Bundi. In the report, it was alleged that on 11.7.1984 while the said Constable was on duty on the bus stand of Bundi at 8.30, pm the appellant was found with jute bag (Katta) near the bus which was going to Nainwa. On enquiry, he told his name to be Bheru Singh and when checked, the bag was found containing capsules of gelatin. Another Sipoy Shambu Kishore, also in the meantime approached there and both of them took accused Bheru Lal with the beg full of gelatin capsules to the police station. On checking it was found that there were as many as 191 capsules of gelatin in the jute bag. A chargesheet was filed against the appellant for offence under Section 4 of the Explosive Substances Act, 1908 (hereinafter referred to as 'the Act'). Prosecution examined as many as 11 witnesses whereas the accused-appellant in defence produced Gajraj Singh.
3. Learned Additional Sessions Judge, Bundi after conclusion of the trial, convicted the accused-appellant for offence under Section 5 of the Explosive Substance Act and sentenced him to undergo R.I. of five years with a fine of Rs. 500/- in default whereof to further undergo R.I. of six months.
4. Shri S.K. Jain, learned Counsel for the appellant has argued that the learned trial Court erred in law in convicting the accused-appellant for offence under Section 5 of the Act because the accused was charged for offence under Section 4 of the Act and there was no charge against him for offence under Section 5 of the Act. It was argued that even for offence under Section 5 of the Act, the fact that the accused-appellant was found in the possession of the explosive substance could not be sufficient to prove the act within the purview of Section 5. The prosecution was further required to prove that the accused-appellant possessing explosive substance under such circumstances which gave rise to reasonable suspicion that he was not using it or did not have it in his possession or under his control for a lawful object. Initial burden to prove the fact of possession and the existence of circumstances which give rise to reasonable suspicion that such explosive substance possessed by the accused were not for a lawful object lay on the prosecution. In the present case, the prosecution has merely proved the possession but not the circumstances which give rise to reasonable suspicion of such possession for unlawful object. Learned Counsel in support of his argument relied the judgment of Supreme Court in Mohammad Usman Mohammad Hussain Maniyar and Anr. v. State of Maharashtra 1981 Criminal Law Journal 588 and Rajani Kanta Mandal v. State of Bihar : AIR1959Pat314 . Learned Counsel further argued that the learned trial Court was not justified in relying upon the testimony of PW.1 Bheru Lal, PW.2 Shambhu Kishore and PW.4 Surendra Singh who have contradicted each other. Bheru Laland Shambhu Kishore were Constables, therefore, they are interested witnesses and one of them filed the FIR. Only two independent witnesses were Motbir of the recovery and they turned hostile. Recovery against the appellant thus could not be proved. It was argued that solitary testimony of Investigation Officer cannot be relied upon. The prosecution failed to prove that seal of sample fixed at the time of recovery remained intact when it was sent for examination. In the present case, capsule of gelatin was not identified by the witness in the Court and the recovered Articles were not produced before the Court for proof. Mere oral evidence as to the feature and panchnama does not prove such recovery. Recovery of this nature shall have to be discarded. Learned Counsel for the appellant in support of his argument relied upon the judgment of Supreme Court in Jitendra and Anr. v. State of M.P. : 2003CriLJ4985 .
5. Shri B.S. Chhaba, learned Public Prosecutor opposed the appeal and argued that offence under Section 4 is the major offence punishable with life imprisonment of which charge was framed, the conviction under Section 5 which is comparatively an offence of lesser gravity with maximum sentence of 10 yeas, could have been proved against the appellant and conviction recorded. Learned Public Prosecutor argued that the appellant was found carrying jute beg having gelatin capsules and could not explain the purpose for which he carried them. This by itself proved that there were not meant for any lawful object. Learned Public Prosecutor argued that recovery was made in legal manner and the seal was found intact from the time of recovery till it was deposited with Malkana and thereafter when it was sent to the laboratory for checking. The Controller of Explosive, Jaipur in the report has suggested that the seal of the packets were intact and agreed with facsimile. PW.11 Raghuveer Singh who received the packets from Malkhana has clearly stated that it was in sealed condition and deposited in the 'sealed condition with the Laboratory. PW.10 Mukhpal Singh has proved the seal and that he deposited the contraband with incharge of Malkhana and PW.8 Jagdish Singh also admitted in his statement that sample was received in sealed condition and was handed over to PW.6 Raghuveer Singh on 17.7.1984 in sealed condition for being taken to the Laboratory. The recovery was, therefore, absolutely valid and proved beyond reasonable doubt. Learned Counsel argued that burden of proving that the explosives were meant for a lawful object lay on the accused.
6. I have given my anxious consideration to the arguments made by the learned Counsel for the parties, perused the impugned judgment and also the material on record.
7. Though the motbir witnesses namely; PW.5 Mohammad and PW.6 Ismile, who were examined to prove the recovery have not supported the prosecution story and have been, therefore, declared hostile but the recovery has been proved by evidence of PW.1 Bherulal, PW. 2 Shambu Kishore and PW.4 Surendra Singh, while PW.1 Bherulal and PW.2 Shambu Kishore are the Constables of police station concerned who were on duty at the bus stand, PW.4 Surendra Singh was Assistant Depot Manager of the Bundi Depot, RSRTC. Argument of the learned Counsel is that even if recovery is held to be proved at the instance of appellant that by itself would not be sufficient for his conviction under Section 5 of the Explosive Substance Act. This issue was considered and decided by Patna High Court in Rajani Kanta Mandal (supra) in which case also the recovery from the accused was held to have been proved but the learned Court observed that two ingredients were necessary for making out offence under Section 5 of the Act. One was the recovery and other one was proof of circumstances which give rise to reasonable suspicion that the accused was not possessing the same for a lawful object. The same issue when arose before the Supreme Court in Mohammad Usman (supra), in para 10 of the judgment it was held as under:
In order to bring home the offence under Section 5 of the Explosive Substances Act, the prosecution has to prove; (1) 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; and (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.
The burden of proof of these ingredients is on the prosecution. The moment the prosecution has discharged 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.
8. It would be evident from the above judgment of the Supreme Court that though the accused was acquitted of offence under Section 5 of the Explosive Substance Act, but at the same time his conviction for offence under Section 120-B IPC was maintained. In view of as enunciated above, it is evident that in present case what has been proved by the prosecution against the appellant is the recovery of explosive substance but the prosecution has not proved any such circumstance as may give rise to a reasonable suspicion that the accused-appellant did not have the explosive substance in his possession and his control for a lawful object. On the contrary, DW.1 Brij Raj Singh has proved that accused-appellant was engaged in the work of stone quarrying. Second ingredient of the offence being totally absented, therefore, conviction of the accused-appellant under Section 5 of the Act cannot be sustained.
9. Now, therefore, the main question which arises for consideration of this Court is that in spite of the fact that a charge for offence under Section 5 of the Explosive Substance Act has not been proved against the accused-appellant whether he can still be convicted for any offence of lessor gravity. In Suman Sood @ Kamal Jeet Kaur v. State of Rajasthan : 2007CriLJ4080 the Supreme Court held that if the accused is charged for a higher offence and if the Court finds that the accused has not committed that offence but is equally satisfied that he has committed a lesser offence, then he can be convicted for such lesser offence. In Lopchand Naruji Jat and Anr. v. State of Gujarat : 2004CriLJ4241 the accused were charged for offences under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 and also for offence under Section 9-B(i)(b) of the Explosives Act, 1884. The Court acquitted them for offence under Section 5 of the TADA Act. However, they were convicted only for offence under Section 9-B(i)(b) of the Explosives Act on the premise that the prosecution was only able to establish that 180 numbers of detonators were found in possession of the accused and that ammunition dynamites with wire, which were recovered, were explosive falling in Class 6 of Schedule-I of the Explosives Act.
10. In the present case, however what has been recovered is 191 capsules of gelatin. The report of the Deputy Controller of Explostves (Ex. P/7) on examination of the content of explosives has proved that each of the cartridge was approximately 20 cm. in length and 2.5 cm in dia and marked as Torch Brand I.E.L. Gomia S.G. 90. The aforesaid report indicates that chemical examination of the seized Articles proved that they were gelatin cartridge which is an explosive of Class 3 Division I as defined In Schedule I of the Explosive Rules, 1983. The substance recovered from the appellant, therefore, comes within the definition of explosive as per Section 4(d) of the Explosives Act and even though he was charged for Section 5 of the Explosive, Substance Act, which was major charge, he can nevertheless be convicted for offence under Section 9-B(i)(b) of the Explosives Act in view of the law discussed above.
11. In the result, the appeal is allowed in part. Conviction of the appellant for offence under Section 5 of the Explosive Substance Act is set aside and he is convicted for offence under Section 9-B(i)(b) of the Explosives Act and sentence to undergo rigorous imprisonment of one year with a fine of Rs. 500/- being maintained, in default thereof, he shall have to undergo rigorous imprisonment of one month.