MAHESH BHAGWATI, J. - (1.) CHALLENGE in this appeal is to the judgment dated 23.05.1987 rendered by the Additional Sessions Judge, Kishangarh, District Alwar (hereinafter referred to as 'the trial court') whereby he convicted accused -appellant in the offence under Section 4(b) of the Explosive Substances Act, 1908 and sentenced him to undergo three years rigorous imprisonment and a fine of Rs. 1,000/ -; in default of payment of fine to suffer further rigorous imprisonment for three months.
(2.) THE facts necessary for disposal of this appeal succinctly are thus: On 27th January, 1985 at about 8.00 a.m. when P.W. 8, Shri Mahesh Chand Dubey, S.H.O. Police Station Khairthal, restrict Alwar was coming back after conducting an investigation in case no. 11 registered in the offences under Sections 420, 467 and 406 of Indian Penal Code, received an information from an informer that one Rohtash son of Badri Prasad resident of Khairthal, Alwar was manufacturing gun powder. Having received this information, Shri Mahesh Chand Dubey alongwith other police personnel reached at the house of Rohtash, where he found him thrashing something in a small mortor of stone with pestle. On being asked, Rohtash responded that he was manufacturing gun powder for which he had no licence. Shri Mahesh Chand Dubey seized coal, mortor, two pestles, two containers containing -three and a half kilograms gun powder from his house which was in his conscious possession. Shri Mahesh Chand Dubey filed a written complaint, Exhibit P -5 in the Police Station whereupon F -'IR, Exhibit P -6 was lodged and investigation commenced. The Investigating Officer recorded the statements of the witnesses under Section 161 Cr.P.C, seized explosive substances vide memo, Exhibit P -10, arrested the accused -appellant Rohtash vide Exhibit P -l, sent the explosive substances, wooden pestles, one stone mortor to FSL, Jaipur for its chemical analysis and after usual investigation filed the charge sheet in the court against the accused appellant in the offence under Section 4(b) of Explosive Substances Act, 1908. The accused -appellant was indicted for the offence under Section 4(b) of Explosive Substances Act, 1908 who pleaded not guilty and claimed to be tried. The prosecution, in order to prove its case, examined in all 8 witnesses. In the explanation under Section 313 Cr.P.C., the accused -appellant claimed innocence and pleaded that he had a licence to manufacture fire works. He produced himself as a witness under Section 315 Cr.P.C. and gave statement to substantiate his defence. After completion of trial, learned trial court found the accused -appellant guilty and convicted him for the alleged offence and also sentenced as indicated hereinabove. Heard learned Counsel for the appellant as also learned Public Prosecutor appearing for the State and with their assistance scanned the relevant material available on record.
(3.) DURING arguments, learned Counsel for the appellant took me to document/letter Exhibit D -1 and licence Exhibit D -3 issued by Deputy Controller of Explosives, Jaipur to the accused -appellant Rohtash Kumar. The first and the only thrust of argument advanced by the learned Counsel for the appellant is that on 27th January, 1985, the appellant had a licence to manufacture fire works but he had sent the same for its renewal to District Magistrate, Alwar. The learned trial court gravely erred in not taking the said licence into account and perversely convicted the accused -appellant on the basis of presumption drawn by himself. It is true that all the witnesses have supported the case of the prosecution on this premise that the appellant had no licence with him to possess gun powder and the articles used for manufacturing the same, but their statements are found to be unreal and totally contrary to the existing documentary evidence, the accused -appellant had produced in his defence. Hence, conviction of the accused -appellant and the sentence awarded to him deserve to be set aside and he be acquitted accordingly.;