Criminal Appeal (SJ) No.209 of 1997 [Appeal against the judgment and order dated 11.8.1997 passed by the 2nd Additional Sessions Judge, Bhagalpur in Sessions Trial No.350 of 1990] 1. Shailendra Kumar Yadav @ Sahu Yadav Son of Late Dhukan Yadav 2. Kanik Yadav Son of Late Dhukha Yadav, Both of the resident of Parbatti, P.S. Kotwali, District Bhagalpur …………………….. Appellants Versus The State of Bihar ………….. Respondent For the Appellants : Mr. Janki Nandan Prasad, Advocate Mr. Dhirendra Nath Jha, Advocate For the Respondent : Mrs. I.B. Pandey, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/s.5 of the Explosive Substance Act and sentenced to S.I. for five years by a judgment dated 11.8.1997 passed by the 2nd Additional Sessions Judge, Bhagalpur in Sessions Trial No.350 of 1990. 2. The case of the prosecution according to the informant Ram Bilash Singh, S.I. of Kotwali P.S. is that on 16.12.1989 he learnt some confidential information about another case that he was investigating and proceeded with a raiding party to village Parbatti. In course of search, he allegedly searched the house of the appellants and from the premises of Mahavir Asthan recovered 50 bombs and detonators from the Almirah which he seized and thereafter instituted the present case on the basis of recovery. 3. During trial, the prosecution has examined five witnesses. Out of whom, P.W.2 is the seizure witness and has been declared hostile, whereas P.W.4 is a formal witness, who 2 has proved the order of sanction and P.W.5 is also formal and examined as a court witness as well on the point that articles seized had been destroyed. P.W.1, the informant, has stated that on the date of occurrence he searched the premises of Mahavir Temple where the appellants were present and recovered the incriminating articles. In cross examination he admitted that the house of the appellant Shailendra Kumar Yadav was about 20-25 yards away and that the temple was a public place not within the control of any one. P.W.3, a member of the raiding party, has not gone any further that what P.W.1 has deposed. 4. From the seizure list proved by the prosecution, I find that the place of seizure is a room adjacent to the Mahavir Temple which had a door, but there is no positive evidence that this room was in control of the present appellants. The only evidence that has transpired against them is that they were present in the room where the said incriminating articles were recovered. This alone can not connect the appellants with the incriminating articles and make them liable for being in possession of the explosive substance. Therefore, in view of the scant evidence adduced on behalf of the prosecution, this appeal is allowed and the order of conviction and sentence passed against the appellants on 11.8.1997 by the 2nd Additional Sessions Judge, Bhagalpur in Sessions Trial No.350 of 1990 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 7th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )