- (1.) These two appeals arise out of a common judgment and order passed by the High Court of Bombay. Criminal Appeal No. 150 of 1976 has been preferred by two appellants, Mohammad Usman Mohammad Hussain Maniyar (hereinafter "Usman") and Mohammad Taufik Mohammad Hussain Maniyar (hereinafter 'Taufik') and Criminal Appeal No. 285 of 1976 has been preferred by Mohammad Hussain Fakhruddin Maniyar (hereinafter 'Fakhruddin') and Mohammad Rizwan Mohammad Hussain Maniyar (hereinafter 'Rizwan'). All of, them were convicted and sentenced by the Sessions Judge as follows : (i) Under Section 120-B of the Penal Code and sentenced to suffer rigorous imprisonment for three years each; (ii) Under Section 5 of the Explosive Substances Act and sentenced to rigorous imprisonment for three years, each, and to pay a fine of Rs. 1000/-, each, in default, to suffer rigorous imprisonment for two months each; (iii) Under Section 5 (3) (b) of the Explosives Act and sentenced to suffer rigorous imprisonment for six months, each, and to pay a fine, of Rs. 500/- in default, to suffer rigorous imprisonment for one month each; (iv) Under Section 3 read with Section 25 (1) (a) of the Arms Act and sentenced to suffer rigorous imprisonment for two months each; (v) Under Section 30 of the Arms Act and sentenced to pay a fine of Rs. 100/- each, in default, to suffer rigorous imprisonment for two weeks each; (vi) Under Section 6 (1) (a) of the Poisons Act read with Rule 2 of the Rules framed under the said Act and sentenced to suffer rigorous imprisonment for one month each, and to pay a fine of Rs 50/- each, in default, to suffer rigorous imprisonment for 15 days each. The substantive sentences were directed to run concurrently. The first two preferred one appeal and the second two a separate appeal before the High Court. The High Court by a common judgment dismissed both the appeals. Hence this appeal before us by special leave. This common judgment of ours will dispose of both the appeals.
(2.) During the pendency of the appeal before this Court, appellant, Fakhruddin, died on 10-10-1978. His legal representatives have been brought on record as there are sentences of fine against the deceased appellant.
(3.) The facts necessary for the purpose of disposal of these appeals may be stated thus : In the year 1967 a number of murders were perpetrated by a gang of murderers. During the course investigation into these offences, potassium cyanide was found to have been used for poisoning the victims. On 11-9-1964, P. W. 17, Bendre, P. S. I., who was attached to the local crime branch at Solapur received an information that ,the firm known as M. F. Maniyar and Sons was selling potassium chlorate which is a highly explosive substance. He then initiated the work of finding out the persons responsible for the supply of the explosive to the miscreants. He received information that appellant, Fakhruddin, was the owner of the shop known as M. F. Maniyar and Sons, situated at house. No. 383, East Mangalwar Peth, Sholapur, and possessed licence for sale and storage for sale of potassium chlorate in House No. 615 in East Mangalwar Peth Fakhruddin with the assistance of his three sons (appellants 2 to 4) and his servants stored at the place mentioned in the licence but he sold them in their shop situated at house No. 383, East Mangalwar Peth, to persons who did not possess licence to purchase potassium chlorate. P. W. 17 and Sub-Inspector Tasgaokar of the local Intelligence Branch proceeded to Mangalwar Peth Police Chowky and called a bogus customer 'Basanna Pujari' by name. He also called the local panchas. He, then, gave a ten rupee currency note to P. W. 4. He initialled the currency note. He also gave a bag to P. W. 4. and told him to buy half k. g. of potassium chlorate from M/s. M. F. Maniyar and Sons. P. W. 4 went to the shop. He found in the shop accused Chandra Kant (since acquitted), who was a servant of Fakhruddin. P. W. 5 gave him the ten rupee currency note and asked for half k. g. of potassium chlorate, which he said he needed for blasting purpose. Chandra Kant gave him half k. g., of potassium chlorate and returned an amount of Rs. 2.50p. P. W. 4 took the powder in the bag and was returning. Police challenged him and seized the bag. Police interrogated him. He told police in presence of the Panchas that he had purchased the powder which was inside of the bag from M. F. Maniyar and got back Rs. 2.50p. P. W. 17 searched the cash box in the firm of Fakhruddin and found the ten rupee currency note initialled by him. The shop was searched and 220 grams of Black gun powder was found in the show case. He then along with the panchas went up to the first floor. They found black gun powder there also. They found it to be a mixture of potassium chlorate and sulphate used for fire arms. Samples were sealed and one of them was given to appellant, Fakhruddin. A panchnama, Ex- 20, was prepared. P. W. 17, then. thought it necessary to send for an expert to identify the powder. He, therefore, posted some constables at the shop, sealed appellants' godowns in Mangalwar Peth and Shukrawar Peth and made panchnamas, Exhibits 22 and 23. Next morning. he sealed both the shops and prepared panchnamas Exhibits 24 and 25. On 13th September, he sent the 'samples to' the Explosives Inspector. On the 14th he lodged a complaint at the Jail Road Police Station at Sholapur. Police registered a case and the P. S. I. started investigation. The P. S. I. sent for the Drugs Inspector and the Central Excise Inspector. All of them, then visited the appellants' godowns at Shukrawar Peth at Sholapur. They found the shops in the sealed condition. A search was conducted in the presence of the appellants. The Police Officer and others, having observed due formalities. searched the premises. In course of the search they found and seized some powder as per Panchnama, Ex. 27. Samples of the powder seized were also given to the appellants. After that they went and searched the appellants' premises in Mangalwar Peth. Nothing incriminating was found there. They, then, returned to the firm M/s. M. F. Maniyar and searched it. They found and seized some powders as per Panchanama, Ex. 28. Samples of these powders also were given to the appellants. On the same night they found 49 percussion caps on the roof of the adjacent shop. and seized them as per Ext. 30. On the same night P. S. I., Patil, received a panchnama made by P. S. I., Joshi, (P. W. 18) under which detonators had been seized. Acting on an information received from P. W. 17, P. W. 18 arrested appellant, Taufik on September 15, 1967. Appellant, Taufik told the police that he had buried some detonators in the compound of his bungalow and he would produce them. Accordingly, he led P. W. 18 to his bungalow which was admittedly in occupation of all the appellants, removed some earth under a mango tree in the premises and took out three tins containing 20 packets of detonators. It was seized under panchnama, Ex. 33. As the detonators were explosive they were not opened. Taufik was arrested and produced before P. W. 17. The Explosives Inspector was of the opinion that some of the explosives seized were highly explosive. P. W. 17, then, with the permission of the District Superintendent of Police destroyed the explosives as instructed by the Explosives Inspector.;