Crl.A. 269/2001 BEFORE THE HON BLE MR. JUSTICE HRISHIKESH ROY This appeal is presented against the judgment dated 3.8.2001 in Sessions Case No .1/1989 rendered by the learned Sessions Judge, Shillong, whereby the appellant is convicted under Section 5 of the Explosive Substance Act, 1884 and sentenced to undergo R.I. of 3 years and a fine of Rs.2000/-, in default, to further R.I. for 1 year. 2. I have heard Mr. P. Kataki, learned counsel appearing for the appellant and Mr. AC Buragohain, learned counsel appearing for the CBI. 3. The criminal process in this case was set in motion with the lodging of an FIR on 6.4.1981 with the Jorhat Police Station by one P.C. Borah, Special As sistant to the Commissioner, Upper Assam Division, where it was informed that wh en Shri ES Parthasarathy (IAS), Commissioner, Upper Assam Division entered his o ffice and took his seat at about 10-30 A.M. an explosion occurred resulting in c omplete destruction of the chair and the Commissioner was thrown down on the flo or with severe bleeding injuries. On the basis of the FIR, Jorhat PS Case No. 16 (4)/1981 was registered and subsequently when the case was handed over to the CB I and a fresh case i.e. RC 3/1981 was registered by the Central agency under Sec tion 302 IPC and Section 5 of the Explosive Substance Act (hereinafter referred to as the Explosive Act ). 4. In course of the investigation it came to light that accused Niren Sarma had procured two hand grenades from another accused Pradeep Hazarika and one of those hand grenades was handed over to the appellant Prabin Saikia. As recovery of the hand grenade with a cap 22 fuse and detonator was made on the basis of t he custodial statement given by the accused Prabin Saikia, a charge sheet agains t the appellant Prabin Saikia and Pradeep Hazarika was submitted under Section 5 of the Explosive Act. Be it mentioned that in respect of the offence of murder, separate charge sheet(s) were submitted by the prosecution and the petitioner w as not charged under Section 302 IPC. 5.1 The Chief Investigation Officer of the CBI Mr. Murari Lal (hereinafter r eferred to as the Chief I.O. ) interrogated the appellant on 17.7.1981 and the following statement of the accused was recorded by the Chief I.O. on 17.7.1981. On interrogation by Sri Murari Lal, Dy. SP/CBI and in the presence of S/Sh P.V . Ravindran, J.E.(E) and Kailash Ram, JE (Civil), I state that one grenade alon g with its 22 cap fuse and detonator which was given to me by Sr. Niren Sharma s /o late Suryadhar Sharma r/o Dagaon, P.S. Dhekargora, Jorhat, has been concealed by me underground under the granary of my house at Seujipam, which I can point out and get the same recovered. The grenade and its parts are wrapped with a kha ki paper duly covered by a polythene bag. 5.2 The statement marked as Ext. P-35 was witnessed by two independent witne sses PV Ravindran (PW-27) and Kailash Ram (PW-40). On the basis of the accused s tatement, the Chief I.O. rushed to the Seujipam village, residence of the accuse d, at Sibsagar district where the appellant directed the police party to the g ranary located within the compound of the accused’s residence (West side). Then the accused pointed out the spot where the grenade was concealed at a depth of a bout 6 under the earth and the hidden article kept in a polythene bag was recov ered. The police found that a grenade with a detonator and fuse wire and .22 cap were kept inside the hidden plastic bag. A recovery memo was prepared by the Ch ief I.O. and the PW-27 and PW-40, who accompanied the police team from Jorhat to Seujipam village at Sibsagar were made the witnesses of the recovery memo (Ext. P-36). 6. Basing on the evidence of PW-40, PW-49 (a Sub Inspector of the CBI assis ting the Chief I.O.) and the PW-54 (the Chief I.O.) and also the evidence of the hostile witness (PW-27), the learned Sessions Judge concluded that the hand gre nade marked as Material Exhibit-7 was recovered on the basis of the custodial st atement given by the accused from its hiding place shown by the accused and acco rdingly by considering the corroborating evidence of PW-40, PW-49 and PW-54, the Court held that the charge under Section 5 of the Explosive Act has been establ ished against the appellant and accordingly he was convicted under the said Sect ion. 7.1 Mr. P. Kataki, learned counsel submits that the hand grenade (Ext.P-7) w as never recovered from the residence of the appellant at Seujipam village and a false recovery memo (Ext.P-36) has been prepared by the Chief I.O. and accordin gly the conviction cannot be sustained. He submits that the prosecution failed t o establish beyond reasonable doubt that the hand grenade in question, was recov ered from the possession of the accused and accordingly the impugned conviction is assailed as unsustainable by the learned counsel. 7.2 Challenging the genuineness of the recovery memo, Mr. Kataki points out that the Chief I.O. had not recorded the time when the recovery memo (Ext.P-36) was prepared. The counsel submits that no local villager of Seujipam village was made a witness of the seizure memo and the same being doubtful it cannot be use d to prove that the grenade was recovered from the possession of the accused app ellant. 7.3 The appellant also contends that the recovered articles were not sent fo r examination by the Explosive Expert and accordingly it cannot be said with abs olute certainty that they are Explosive Substance within the meaning of the Ex plosive Act. 7.4 Referring to the evidence of the Chief I.O., Mr. Kataki projects that on e Sri B. Barua, S.I. of Assam Police was all along present during the investigat ion of the case under the Explosive Act and this police officer, though a vital witness, was withheld by the prosecution. Therefore he contends that veracity of the story projected by the prosecution cannot be accepted to be correct. 7.5 Assailing the correctness of the custodial statement (Ext. P-35), Mr. Ka taki submits that the Chief I.O. had testified that the accused gave his stateme nt partly in English, partly in Assamese and partly in Hindi. But it is not ment ioned who had translated the Assamese part of the statement which was reduced in to English by the Chief I.O. himself. Accordingly, the counsel contends that the statement leading to the discovery has not been proved beyond reasonable doubt in the present case. 7.6 The learned counsel also submits that after the recovery was made, the r ecovered articles were not sealed at the spot and tempering of the articles cann ot therefore be ruled out and accordingly the conviction is contended to be unre asonable. 8.1 Defending the impugned judgment, Mr. AC Buragohain, learned counsel refe rs to the recovery memo (Ext. P-36) to project that Explosive Substance was reco vered from the possession of the accused after he led the police to the hiding p lace beneath the granary of his house and since the possession of grenade (Ext.P -7) itself is unlawful, the Court had rightly convicted the accused under Sectio n 5 of the Explosive Act. 8.2 Mr. Buragohain, learned counsel contends that since the recovery was mad e on the basis of the statement given by the accused while in custody, the evide nce is admissible under Section 27 of the Evidence Act and considering the recov ery of the explosive substance, the conviction should be upheld by this Court. 8.3 The CBI counsel submits further that independent witnesses were present when the accused gave the statement and also at the time when recovery of the ex plosive substance was made from the village house of the accused and accordingly he argues that evidence are sufficient to uphold the conviction of the appellan t. 9. In so far as the statement given by the accused (Ext.P-35) regarding con cealment of the grenade beneath the granary of his house at Seujipam village, th e statement was recorded by the Chief I.O. in English. In his cross-examination, the Chief I.O. had stated that, accused gave a part of his statement in Assames e. But it is not reflected anywhere as to who had translated the Assamese portio n of the statement and it is also not clear as to which portion of the Ext. P-35 statement was given in vernacular. It is also noteworthy that the two persons w ho witnessed the accused’s statement were not familiar with Assamese and the onl y person, who knew Assamese and was present throughout i.e. the S.I. of the Assa m Police Shri B. Barua, was withheld by the prosecution. Under such circumstance s, independent inputs in the statement (Ext.P-35) beyond what was stated by the accused cannot entirely be ruled out and accordingly I hold that the Ext.P-35 ca nnot be made the basis for proving the recovery of the offending article. 10. As regards the recovery made from beneath the granary of the accused in his Seujipam village, the Chief I.O. stated that the village people gathered whe n they took the accused to make the recovery. PW-49 Ashwani Kumar, who accompani ed the police team, stated that they reached the village at around noon time. Ye t the police did not bring any local villager to witness the recovery of the gre nade. On the other hand, PW-40 had stated that they reached the place of recove ry (Seujipam village) at night and that is why no local villagers could be made to witness the recovery memo. These discrepencies naturally cast doubt on the ve racity of the evidence of the Chief I.O. (PW-54) and the S.I. of the CBI (PW-49) who had testified that they reached the village during day time and at that tim e many villagers had gathered near the residence of the accused when the recover y was made. Considering the discrepancy on the evidence of witnesses on the timi ng of the recovery and noting the absence of time in the recovery memo and findi ng that local villagers were not made witness of the recovery memo, I feel that the story projected by the prosecution suffers from glaring infirmity and the re covery memo is found to be unproved, beyond reasonable doubt. 11. It must also be noted that the grenade was wrapped with paper and was pa cked inside a polythene bag and then hidden beneath the granary in the accused’s house. The recovery memo stated that after the polythene bag was dug out from t he pit, when it was unpacked the grenade was discovered inside the wrapping pape r. But surprisingly one of the witnesses P.V. Rabindran (PW-27) had stated that he does not remember whether the recovery memo (Ext.P-36) was prepared in his pr esence. He also stated that he had never seen the explosive materials till he ca me to give evidence in the Court. Similarly, the second witness Kaikash Ram (PW- 40) had also stated that after the polythene bag was brought out from its hidden place, it was carried in a jeep in the same condition to the Circuit House at J orhat and was opened only at Jorhat by the Chief I.O. Therefore, the evidence of the independent witness suggests that recovery memo was not prepared at Seujipa m village, Sibsagar and was prepared subsequently by the Chief I.O. at Jorhat. U nder such circumstances, the evidentiary value of the recovery memo (Ext.P-36) g ets considerably diminished and accordingly, I feel that the same cannot be made the basis for sustaining the conviction. 12. That apart, it shouldn’t be overlooked that the appellant has not been c harged for murder. No allegation is made that the grenade was to be used for any particular crime. Considering that the recovered article was not sealed and was not sent for examination by Explosive Expert, I find scope for doubting whether the recovered articles were actually explosive substance within the meaning o f the Explosive Act. In the absence of any evidence to show that Ext. P-7 is cap able of being exploded, I feel that it may be unsafe to uphold the conviction gi ven under Section 5 of the Explosive Act. 13. Since the prosecution had withheld vital witnesses like the Assam Police S.I. Sri B. Barua, who was present throughout the investigation, and had kept o ut the local villagers of Seujipam village from being witnesses to the recovery and since the recovered articles were not sealed at the spot, the possibility of the recovered articles being tempered subsequently cannot entirely be ruled out and this would naturally affect the weight of the evidence of Ext. P-36. 14. According to me, non-sealing of the seized articles at the spot was a s erious lapse and consequently, following the ratio of the Apex Court in Amarjit Singh alias Babbu vs. State of Punjab, reported in 1995 Supp (3) SCC 217 and the decision in Sahib Singh vs. State of Punjab, reported in (1996) 11 SCC 685, an d noting the infirmities discussed in the preceding paragraphs, I hold that the appellant is entitled to benefit of doubt. I, therefore, allow this Appeal and s et aside the conviction and sentence of the appellant. Since the accused is on b ail, he is discharged from his bail bonds. 15. The Registry to return the LCRs.