JUDGMENT
Anant Singh, J.
1. The appellant has been convicted under Section 5 of the Indian Explosives Act (Act IV of 1884) as also under Section 5 of the Ex-plqisive Substances Act (Act VI of 1908) and sentenced to rigorous imprisonment for a period of one year on each of the two counts, and the sentences are to run concurrently. There was another accused, Brahamdeo Singh who was charged under Section 5 of the Indian Explosives Act, but he has since been acquitted of the charge.
2. At about 4,30 p.m. on 14-6-1958, A. N. Misra (P. W. 14) the officer in charge of Mandu police station along with constable Hussain Ahmad (P. W. 5) was out from the police station for checking gambling which was reported to be going on in the Maidan near-north-east of a colliery belt. On the way, Hazrat Ansari (P. W. 4) and Perdorit (P. W. 12) joined the Sub-Inspector at his request. The appellant and Brahamadeo were seen picking up something from ground near a bush. Appellant Ramchandar had a bag in his hand.
They were at some distance from the Sub-Inspector when he challenged them. They both made a bid for run, but they were chased and errested. Debi Satan (P. W. 11), Sansar chamar (P. W. 13 tendered) and another Ramchandra happened to arrive, in the meantime, from the jungle side. The person of appellant Ramchandar and Brahmdeo was searched in their presence. Nothing incriminating was found from the person of Brahamdeo, but in the bag which the appellant was carrying 16 detonators with 96 inches wire and 16 Polar Viking cartridges were found.
They were suspeqted to contain exposive materials for which the appellant had no license as required under the rules framed under the Explosives Act as also under the Explosive Substances Act. The Sub-Inspector seized them, having prepared a seizure list, exhibit 5, in the presence of the aforesaid persons. The Sub-Inspector and P. W. 11 put their signatures on it and Ramchandra not examined and P. W. 4 put their respective left thumb marks on it.
3. The Sub-Inspector then drew up his report, exhibit 6. He examined the witnesses and took the appellant and Brahamdeo in custody. He took them along with the incriminating articles seized from the bag of the appellant to the outpost close by. He packed all the explosive materials in two wooden boxes and sealed them. He sent a requisition to the agent of the colliery to have the two boxes containing t the explosives kept in the colliery magazine meant for storage of explosives.
The Sub-Inspector himself also went to the colliery magazine- He verified and checked the stock of explosives with the stock register kept in the magazine. He noticed no defect. He had the two boxes containing the explosive seized by him from the bag of the appellant kept in the colliery magazine in charge of Sharfuldin Ahmad (P. W. 3), the magazine keeper, and entered this fact in his own pen exhibit 3 in the register of the magazine. This was on 14-6-1958.
4. Later, the Sub-Inspector arranged for an examination of the explosives, and in due course, they were examined by the Explosive Inspector Shri V, A, Chandra Shekharan (P. W. 9) on 22-8-1958, and he submitted his report, exhibit 4, after having had one of the cartridges examined by the Assistant Chemical Examiner to the Government of India, whose report also exhibit 9 he submitted along with his own report. It was found that the articles in question had contained explosive substances. On the recommendation of P. W. 9, the explosives were destroyed after their examination. After completion of the investigation the appellant and Brahamdeo were both charge sheeted with the sanction of the Government (exhibit 2). They were committed to the court of Sessions after enquiry by a magistrate.
5. Both of them pleaded not guilty to the charges. Nothing was recovered from the person of Brahamdeo, and on behalf of the appellant the very factum of recovery was challenged. It was alleged that the articles had been planted on him by the Sub-Inspector. It was further asserted that the articles did not contain explosives. Brahamdeo, as already mentioned, was acquitted, but the appellant has been convicted and sentenced in the manner as aforesaid. He has since come up in appeal.
6. The first question is, whether 16 electric detonators with 96 inches wire and 16 Polar Viking cartridges were recovered from the person of the appellant and whether they were explosives or had contained explosive substances in them.
7-14. His Lordship perused the evidence and held that the articles were recovered from the appellants as alleged by the prosecution and then proceeded.
15. The next question for consideration is whether these 16 detonators and 16 cartridges recovered from the person of the appellant were explosives or had contained explosive substance in them. These articles were not produced before the court They are said to have been destroyed after they had been examined by the Inspector of Explosive (P. W. 9) and after one? of the cartridges had been examined by the Assistanj-. Chemical Examiner. The destruction was for the reason that these detonators and cartridges were found by P. W. 9 to be deteriorating. He had suggested in his report (exhibit 4), after having examined these articles, that they should be disposed of early. These detonators and cartridges were actually destroyed on 31-12-1958 by the Assistant Inspector of Explosive. Shri S. N. Poddar (P. W. 10), who reported that it was in the interest of public safety to destroy them because they had badly deteriorated and that a minor explosion had also been caused on account of the oozing out of the explosive from the cartridges.
The destruction was done in presence of the colliery manager, Shri Rama Pada Choudhary (P. W- 1), the magazine keeper, Sharfuddin Ahmad (P. W. 3), the Chief Engineer of West Bokaro Colliery, M. V. Rao, (P. W. 6), the Electrical Engineer of the colliery, Ashu Biswas (P. W. V) and the Assistant Sub-Inspector of Police, Ranjit Tirki (P. W. 8), who had been, deputed to watch the destruction. The destruction report is exhibit 1 dated 31-12-1958 and the aforesaid persons including the Assistant, Inspector of Explosive (P. W. 10) had signed the destruction report.
16. It, however, does not appear if the Assistant Inspector of Explosives (P. W. 10) who had destroyed these articles, had taken permission of the Subdivisional officer who was in seisin of the case at the time of the investigation, for the destruction of these articles which were to be exhibited in the case. The Chief Engineer (P. W. 6), however, has said that as there was a minor explosion in the magazine, the Deputy Commissioner and other authorities were written for permission to destroy the articles and it was probably for that reason that the Explosive Inspector destroyed the aforesaid explosives.
No permission of any authority was, however, brought on the record authorising the destruction ¦ of these articles. It, however, appears that on 22-8-1958 a petition was filed by the Sub-Inspector of Police before the Subdivisional Officer for permission to destroy these explosives on. the ground of public safety, but no order appears-to have been passed on this petition. There is, however, a note in the case diary of 31-12-1958 made by Mr. Tirki (P. W. 8) to which a reference can be made, not being a part of the investigation that he had objected to the destruction of the articles by the Inspector without the permission of the Sub-divisional Officer or before the disposal of the case, but the Inspector of Explosives insisted on destroying them on the ground of public safety and that it was dangerous to keep them in the magazine.
The Inspector of Explosives does not seem to-have realised the importance of maintaining the articles until the disposal of the case, or at least until he was authorised by the Sub-divisional Officer to destroy them. He has obviously acted in a most irresponsible manner, although he seems to have acted in good faith on the ground of public safety.
17. Mr. Bhabananda Mukerji, learned Counsel appearing for the appellant, has, however, emphasised that an unauthorised destruction of the articles was highly prejudicial to his client and it raises a reasonable suspicion against the prosecution case. But I do not think it to be so. The Inspector of Explosives seems to have had no.motive in getting these articles destroyed without an order from the competent court. As I have said, he was actuated in destroying these articles by a sense of prevention of danger which could arise from the explosion of the explosives in question.
I do not think that in the particular circumstances of the case, any adverse inference should be drawn against the prosecution case because of the destruction of the articles before they could be exhibited in the case, although, as I have already observed, the action of the Inspector of Explosive was not at all proper. He should have arranged for the safe storage of the articles somewhere else, if it was dangerous to keep them in the magazine.
18. I have already mentioned that these articles were destroyed after the detonators had been examined by the Inspector of. Explosive (P- W. 9) and one of the cartridges had been examined by the Assistant Chemical Examiner of Calcutta, The report of the Assistant Chemical Examiner (exhibit 9), however, only mentions what ingredients were found in the cartridge. He has not said that they were explosive, but the Inspector of Explosive (P- W. 9), who had examined the detonators and had gone through the report of the Assistant Chemical Examiner, was of the opinion that they had contained live explosives.
His evidence is that, on 22-8-1958, he examined the explosives seized by the police in the case and which had been kept in the magazine of West Bokaro Colliery. Be took out one detonator and one Polar Viking cartridge out of these explosives. He tested the detonator and found it to be a live one in good condition. His further evidence is that all the 16 cartridges and 16 detonators were live ones.
19. The next question for consideration is, whether they were the same detonators and cartridges which had been seized by P. W. 14 from the bag of the appellant. His, Lordship after referring to the evidence on the point continued.
I am satisfied from the evidence on the record that the detonators and the cartridges seized from the appellant by P. W. 14 were explosives or contained explosive substance in them within the meaning of Section 4(1) of the Indian Explosives Act as also within the meaning of Section 2 of the Explosive Substances Act. Mr. Bhabanand Mukherji, learned Counsel for the appellant has, however, contended that Section 2 of the Explosive Substances Act would not include any finished product made out of an explosive as defined in Section 4 of the Indian Explosives Act.
The definition of ‘explosive’ within the meaning of Section 4 of the Indian Explosives Act means an explosive which is a ready one capable of bursting when made to burst. Section 2 of the Explosive Substances Act defines ‘explosive substance, so as to include any materials for making any explosive substance including any apparatus. machine etc, Mr. Mukherji has tried to distinguish it by saying that explosive substance must not include any ready explosive within the meaning of Section 4 of the Indian Explosives Act. With all respects, I am- not quite in agreement with him “Explosive substance” within the meaning of Section 2 would include also any explosive ready for explosion.
If it includes a part, it, would surely include the whole. In my opinion, therefore, the articles. in question would come within the mischief of the definition in both the sections of the two Acts. But surely, the appellant cannot be convicted for the same offence under the two Acts. If any act is an offence under different provisions of law, one can be tried and convicted under only one of them and not under more than one. I would, therefore, find that the conviction of the appellant under both the. Acts is improper. He can be convicted only under either of them.
20. The penal section in both the Acts is Section 5, and under Rule 81 of the Explosive Rules, 1940, a license is necessary for possession of explosives or explosive substances and failure to obtain such a license would bring the offender under the mischief of Section 5 of either of the two Acts. The appellant had admittedly no license for possession of the explosives or explosive substances found with him. He is, therefore, liable under Section 5 of any of the two Acts. Since, however, he cannot be convicted under both the sections, I would set aside his conviction under Section 5 of the Explosive Substances Act; but I would maintain it under Section 5 of the Indian Explosives Act.
21. As to the, sentence, Mr. Mukherji has argued that in view of the observation of the learned trial Court that there was no material to-suggest that the appellant was in possession of these articles with a view to carry on any subversive activity and also because he had no bad history, the sentence of even one year is much too excessive, regard being had to the fact that the maximum sentence under Section 5 of the Indian Explosives Act is only two years. In these circumstances, I would reduce the sentence to six months’ rigorous imprisonment. With this modification in the sentence the appeal is dismissed.