Sikandar Axamani Vs. State of Goa, as Represented by Officer-in-charge - Court Judgment

1. Heard Mr. Zaveri, learned Counsel appearing on behalf of the appellant under Legal Aid Scheme and Mrs. Pinto, learned Additional Public Prosecutor appearing on behalf of the respondent.

2. This appeal is directed against the judgment and order dated 24/05/2010, passed by the learned Additional Sessions Judge- I, Panaji, (trial Judge) in Sessions Case No. 20 of 2007.

3. A charge sheet was filed by Ponda Police before the learned J.M.F.C. Ponda against the appellant (Accused) for offence punishable under section 286 of Indian Penal Code (I.P.C.) read with section 5 of the Explosive Substances Act, 1908 (the Act). Since the offence punishable under Section 5 of the Act was triable exclusively by the Sessions Court, the case was committed to the Sessions Court at Panaji. Charge was framed and explained to the accused, who pleaded not guilty.

4. The charge against the accused was that on 25/01/2006 at 12.30 hours at Naga Masjid Ponda, he negligently handled explosives in the rented room of Ms. Devamma Biradar, while preparing hand bomb to kill wild animals illegally which exploded due to heat of lighted stove and as a result of which the accused sustained burn injuries and thus endangered his life and the life of Devamma.

5. The prosecution examined 17 (seventeen) witnesses in order to prove its case. The statement of the accused was recorded under Section 313 of Cr. P.C. The accused did not examine any witness in his defence.

6. Upon consideration of the entire evidence on record, the learned trial judge held that the prosecution failed to prove rash and negligent act on the part of the accused and, therefore, section 286 of I.P.C. was not attracted. The accused was therefore acquitted of the offence under Section 286 of I.P.C.. However, the trial Judge held the accused guilty of the offence under Section 5 of the Act and, therefore, convicted him of the said offence and sentenced him to undergo rigorous imprisonment for four years and to pay fine of   10,000/- (Rupees Ten Thousand only), in default to undergo further rigorous imprisonment for six months. The period of detention has been set off. The stove of green colour (MO-3) has been ordered to be handed over to Devamma Biradar and other Mos have been ordered to be destroyed after the appeal period is over.

7. Mr. Zaveri, learned Counsel appearing on behalf of the accused, while assailing the impugned judgment, submitted that the prosecution had to prove that the accused was in actual and not constructive possession of the explosive substances and that he was not making the same or not having the same in his possession for a lawful object. He invited my attention to the complaint lodged by Police Sub-Inspector Mr. Pravin Gawas (PW10), and to the evidence of Mr. Mulla Hussain i.e. PW3, the pancha witness for the panchanama of the scene of offence. He submitted that during the course of panchanama of the scene of offence, the Bomb Squad Team was put into service but no explosive substances were detected by the police dog at or around the scene. He submitted that in the room, at the scene, a portion of the floor was of greyish colour and the said spot was admeasuring 70cms. X 35 cms. and the suspicion was that the explosion has taken place at that spot. He pointed out that pieces of the China clay saucer and white colour powder wrapped in transparent polythene bag which were at the spot were packed in envelope and marked as Exhibit 1; one match box of 'chavi' and white coloured thread bundle were found on the floor and were packed in envelope and marked as Exhibit 2; a green coloured stove containing kerosene was attached and marked as Exhibit 3; pieces of partly burnt papers were collected and placed in brown envelope and marked as Exhibit 4; scrapping of greyish colour spot was also collected and packed and marked as Exhibit 5; and quarry stone which was found near grayish spot was attached and marked as Exhibit 6. He then invited my attention to the evidence of PW 16 namely Shri K. P. Sudhakaran Kartha, the Assistant Director, C.F.S.L. Hyderabad and his report of analysis which is at Exhibit 83. He further submitted that at the instance of the accused, under Section 27 of the Evidence Act, his clothes(Exhibit 7), a polythene bag having an orange stone and orange powder(Exhibit 8), one polythene bag with white powder(Exhibit 9), one cloth piece(Exhibit 10) and one nylon bag (Exhibit 11) were attached. He submitted that Exhibit 3 constituted the ingredient of match stick buds, and match box would be there in every house; Exhibit 4 did not indicate presence of any explosive material; Exhibits 5, 6, 10 and 11 did not give test for any ions tested for explosive residues and that the ions detected at Sr. No. 1, 2 and 5 could constitute ingredients of low explosive (throw down type country made bomb). Learned Counsel, therefore, submitted that there was no evidence to prove beyond doubt that any explosive substances were found in the possession of the accused. He submitted that the report alleging that some exhibits could constitute ingredients of low explosives could not have been used against the accused, as the accused has not been proved to be in actual possession of the said articles. Learned Counsel further submitted that even otherwise, mere possession of any explosive substance does not make out the offence. He showed from the evidence on record that the prosecution could not prove the purpose for which the accused was in possession of the said substance. He, therefore, submitted that the accused is entitled to acquittal.

8. On the other hand, the learned Additional Public Prosecutor submitted that there is oral evidence of eyewitness, namely Devamma “ PW 6, who had seen the accused grinding some powder with a stone. The learned Additional Public Prosecutor pointed out from the evidence of the PW6 that it was the accused, who had brought the powder and stone along with him and that when PW 6 had lighted the stove for preparing tea, there was an explosion. The learned Additional Public Prosecutor, therefore, submitted that the said powder marked as Exhibit 1 by the Investigating Officer and Exhibit 15 by the trial judge was the explosive substance, the possession of which with the accused has been duly proved. Learned APP contended that the evidence of PW16 confirms that the said powder, white thread and the grinding spot contained explosive substances and it also proves the purpose for which the explosives were brought, namely as 'throw down bombs'. She, therefore, submitted that the accused has been rightly convicted and sentenced for the offence punishable under section 5 of the Act and that no interference of this Court is required.

9. I have gone through the entire material on record and I have also considered the submissions made by the learned Counsel for the parties.

10. PW1, Smt. Shantabai Tari and her son, PW5, Shri Devendra Tari are the owners of the chawl situated at Haveli Nagar Masjid, Ponda. Their evidence reveals that at the request of the accused they had given one room namely room no. 3 of that chawl to PW 6 “ Devamma Biradar on rental basis. The accused used to visit the said room. On the day of incident, PW1 and PW 5 had heard a loud sound of explosion and they had also seen the accused having sustained bleeding injuries and with his clothes torn. PW2, Shri Dipu Naik looks after the property of landlord by name Mr. Anand Kaisare situated at Panditwada Ponda. The accused was appointed for watering the plantation in the said property. PW 3, Shri Mulla Hussain is one of the panch witnesses to the panchanama of the scene of offence and the sketch which are at Exhibit 21(colly). He also stood as one of the panch witnesses for three search and seizure panchanamas. PW 4 Shri Mohan Halarnkar is the Police Constable who clicked photographs of the scene of offence. PW 6 is the said Devamma Biradar who was staying in room no. 3 in the chawl belonging to PW 1 and PW 5. PW 7 Dr. Sandeep Prabhugaonkar acted as one of the panch witnesses to the panchanama of recovery of articles at the instance of the accused which panchanama is at Exhibit 35. PW 8, Dr. Vikas Kuvelkar examined the accused and issued the hurt certificate which is at Exhibit 43. PW 9, Manguesh Varde is the Police Constable who visited the scene of incident and took the accused into custody. PW 10 Pravin Gauns is the Police Sub Inspector who visited the scene of offence and drew the panchanama and sketch at scene and recorded statements of some witnesses. PW 11, Menino D'Silva does not appear to have supported the prosecution case. His evidence that he heard that the accused used to kill wild boars is hearsay and not admissible. PW 12, Dundappa Dindi is the owner of the shop from which the accused had allegedly purchased potassium powder and manshil, by telling him that he required the same for medicinal purpose. PW 13, Shri Tukaram Melekar is the Police Sub-Inspector who, while on SHO duty at Ponda Police Station on 25/01/2006, received the information about the incident, from unknown person. PW 14, Shri Gokuldas Naik, is the Additional Collector and ADM-I, who issued sanction to prosecute the accused. PW 15, Dr. Pradeep Naik, from G.M.C had examined the accused and issued the certificate at Exhibit 81. PW 16, Shri K. P. Sudhakaran Kartha is the Assistant Director of C.F.S.L. who gave report of analysis of the articles which is at Exhibit 83. Lastly, PW 17 Manjunath Dessai is the Investigating Officer.

11. Section 5 of the Act provides as under:

œ5. 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."

12. From the above provision of Section 5 of the Act, it can be understood that mere possession or control of any explosive substance does not make out an offence punishable under the said Section. Coupled with such possession or control, there have to be circumstances to give rise to a reasonable suspicion that the accused who possessed the same or had the same under his control was not making it or did not have it in his possession or under his control for a lawful object. It is well settled that œpossession? or Control? for the purpose of Section 5 of the Act, as rightly contended by the learned Counsel appearing on behalf of the accused, means something more than mere constructive or legal possession or control. The prosecution must prove conscious possession or actual control of the incriminating articles or objects and must also prove mens rea or guilty knowledge.

13. According to PW 6-Devamma, as per her version in the examination-in-chief, the accused had brought some powder and stone with him and was grinding the same and when she lighted stove for preparing tea, explosion took place. She has stated about the injuries sustained by the accused on account of the said explosion. PW1 and PW5 had also seen injuries on the body of the accused but they do not know as to how he sustained those injuries. The question is whether the accused had allegedly brought the powder in polythene bag (Exhibit 1) and the white thread bundle(Exhibit 2) along with him. or whether they were already already existing in the said room. PW6 has nowhere stated that the accused had brought the white thread bundle(Exhibit 2) in that room. There are serious self contradictions in the evidence of PW6. In her cross-examination, PW6 has categorically stated that she did not see the accused bringing the stone and the powder, in the room. Thus, it cannot be said to have been proved beyond reasonable doubt that the accused was in conscious possession or actual control of the said articles at Exhibit 1 and 2. PW6 has deposed that she was outside the room when the explosion took place. She does not know as to what the accused was doing when the explosion took place. PW 6 does not know as to what the accused was doing at the time when she was preparing tea. After preparing tea, PW6 had gone out of the room and about half an hour thereafter, the explosion had occurred. Thus, the evidence of PW6 is not sufficient to prove that the accused was in conscious possession or actual control of any explosive substance.

14. No doubt, the accused had sustained injuries. PW 15, Dr. Pradeep Naik has deposed that the accused had sustained following injuries namely:

(i) Closed globe injury both eyes type C zone 1

(ii) Superficial flame burns 11%

(iii) Bilateral traumatic perforation of moderate size of both ears.

There is also no doubt that the said injuries were grievous in nature and were sustained with the blast of explosive substance. The evidence of PW8, Dr. Vikas Kuvelkar also proves that the accused had sustained injuries. But, merely because the accused had sustained injuries on account of blast of explosive substance, it cannot be concluded that he was in actual possession of the said explosive substance.

15. PW 3, Mr. Mulla Hussain had acted as one of the panch witnesses for the panchanama of the scene of offence. The evidence of PW 3 and the said panchanma of the Scene of offence and sketch at Exhibit 21 colly reveal that in the said room occupied by PW 6 Devamma, greyish colour spot admeasuring 70cms x 35cms was seen. Scrapping of the said floor was collected and marked as Exhibit 5. Some white powder in the plastic bag alongwith pieces of China clay saucer were attached and marked as Exhibit 1; White coloured thread bundle and match box with match sticks were attached and were marked as Exhibit 2; a green coloured stove containing kerosene was marked as Exhibit 3 and pieces of partly burnt papers were collected and placed in brown envelope and marked as Exhibit 4. The evidence of PW 16 , Shri K. P. Sudhakaran, the Assistant Director of CFSL read with the examination report Exhibit 83 reveals that Exhibit 1 gave positive tests for presence of potassium chlorate and chlorine ions; Exhibit 2 gave positive tests for the presence of potassium and chlorate ions; Exhibit 3 constituted ingredients of match stick bud; Exhibit 4 did not indicate presence of any explosive material; and Exhibits 5 and 6 did not give test for any ions tested for explosive residues. Insofar as Exhibits no. 1, 2 and 5 are concerned, the result was that they could constitute ingredients of low explosives (throw down type country made bomb).

16. The evidence of PW 7, Dr. Sandeep Prabhugaonkar, read with the panchanama of recovery at the instance of the accused which is at Exhibit 35 reveals that at the instance of the accused following articles were attached:

1) One blue colour long sleeves shirt, both hands folded having logo mark on the collar as œDevdhaya?. The said shirt was soiled having burnt mark on right side chest level, right side shoulder, left side centre abdomen level, right side bottom, right hand abdomen level. The said shirt was having pocket on the left hand side with a logo mark as œDEVDHAYA? Nothing was found inside the pocket.

2) One light green colour long pant without any tailor mark having two side pockets and right hand side back pocket with zip. Nothing was found in the pocket. Both the side bottoms of the pant were seen torn and burnt. The pant was also soiled. Both the above pant and shirt were folded and put inside the large envelope, which was duly packed, sealed and marked as Exhibit 7.

3) One white polythene bag containing one orange colour shining stone having some orange colour powder inside. The said stone together with polythene bag was weighed and found weighing 124 gms. The said stone with polythene bag was wrapped in a white paper and further put in a small envelope which was duly packed, sealed and marked as Exhibit 8.

4) One polythene bag containing white powder in form of granules. The said polythene bag together with granules was weighed and found weighing 556 gms. The said white powder in the form of granules, in a polythene bag was put in a large envelope which was duly packed, sealed and marked as Exhibit -9

5) One cloth piece of green colour, partly torn at the centre having white and red dots. The said cloth piece was folded and placed in a small envelope which was duly packed, sealed and marked as Exhibit 10.

6) One nylon bag having green, white and black colour strips partly torn at one side having two handles with four buttons on either side having company mark as 'VIP Super' was folded and put in a large envelope which was duly packed, sealed and marked as Exhibit 11.?

17. A perusal of the evidence of PW 17, the Assistant Director of CFSL read with the result of examination at Exhibit 83 reveals that Exhibits no. 10 and 11 did not give tests for any ions with explosive residues. Exhibit 7 gave positive test for the presence of Sodium and Chloride ions and Exhibit 8 gave positive tests for the presence of arsenic and sulphide ions and sulphur. Exhibit 9 gave positive test for the presence of potassium and chloride ions.

18. In terms of Section 2(a) of the Act, the expression œexplosive 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. The expert (PW17), neither in his deposition nor in his examination report in Exhibit 83, says that the articles at Exhibits 3, 4, 6, 7, 8, 9, 10, and 11 are materials for making any explosive substance. From the above, it can be concluded that only the white powder found in polythene bag which was found at the scene of offence and marked as Exhibit 1; white thread bundle which was found at the scene of offence and marked as Exhibit 2 and the grey scrapping marked as Exhibit 5 could constitute ingredients of low explosives whereas none of the articles which were recovered at the instance of accused and which were marked as Exhibits no. 7 to 11 were found to be constituting any ingredients of any type of explosives or containing any kind of explosives.

19. The result of the examination in Exhibit 83 insofar as the exhibits 1, 2 and 5 is concerned about their ability to constitute ingredients of low explosive substance, in my view cannot be used against the accused since it has not been proved beyond reasonable doubt that the accused was in conscious possession or actual control of the said incriminating articles. As already stated above, the evidence of PW6, in this regard is not beyond suspicion and could not be held to be proving beyond reasonable doubt that the said articles were in conscious possession or actual control of the accused.

20. Be that as it may, even if the said articles were found to be capable of constituting explosive substance, then also it could not have been held that the offence under section 5 of the Act was proved. Coupled with such possession or control, there had to be circumstances to give rise to a reasonable suspicion that the accused who possessed the same or had the same under his control was not making it or did not have it in his possession or under his control for a lawful object. The trial Judge has rightly held that the prosecution could not prove the purpose of possession of explosive substances or that the accused was having the explosive substances in his possession or control for making hand bomb for killing wild animals and selling their meat. Thus, the main ingredient of Section 5 of the Act to make out the said offence is not proved by the prosecution. No doubt, the learned trial Judge has added that the facts and circumstances culled out from the evidence on record give rise to such reasonable suspicion, especially in view of the CFSL report which says that the substances could constitute ingredients of low explosives (throw down type country made bomb). The trial Judge has further observed that the onus was on the accused as per section 5 of the Act to show that he had in his possession and control such explosive substance for some lawful object but the accused has not even tried to discharge the said burden cast on him by law. However, the trial Judge has not given any plausible reason for holding that there is evidence to give rise to reasonable suspicion that the accused was not having the explosive substances in his possession or under the control for lawful object. Merely because the substances could constitute ingredients of low explosives (throw down type country made bomb), that could not give rise to reasonable suspicion as required by Section 5 of the Act. The onus can shift on the accused as per Section 5 of the Act to show that he had in his possession and control such explosive substances for some lawful object only after the prosecution had proved beyond reasonable doubt that he was having the same in his possession or under his control in such circumstances as to give rise to a reasonable suspicion that he was not having it in his possession or under his control for a lawful object.

21. In the circumstances above, the accused was certainly and reasonably entitled to benefit of doubt. The impugned judgment and order of conviction and sentence for the offence punishable under section 5 of the Act is therefore not sustainable. The impugned judgment and order, insofar as the said offence under Section 5 of the Act, is concerned, is not in accordance with the settled principles of Criminal law. Hence, interference of this court is warranted.

22. In the result, the appeal is allowed.

a) the impugned judgment, order and sentence for the offence punishable under Section 5 of the Act is quashed and set aside.

b) the accused stands acquitted of the offence punishable under section 5 of the Act.

c) the accused is directed to be released forthwith, if not required in any other case.

d) Muddemal properties shall be destroyed, except the green colour stove, which shall be returned to PW6-Devamma Biradar, if she is available and can be traced within reasonable time, and if not, the same be also destroyed.