1. This is an appeal by Nathu Ram who has been convicted under Section 5, Explosive Substances Act (6 of 1908), by the Assistant Sessions Judge of Etawah and sentenced to four years' and six months' R.I. Mr. K.N. Agarwala appearing on behalf of the appellant has taken me through the entire record. Before I deal with the question of fact as to whether the evidence on the record justifies the conviction of the appellant, I should dispose of certain questions of law advanced by learned Counsel. It is said that because of Section 7, Explosive Substances Act, the learned Magistrate who committed the accused to the Court of Session should not have taken cognizance of the case without the consent of the Local Government. That provision of law runs as follows:
No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Local Government or the Governor-General in Council.
2. It is conceded that no such consent was obtained while the case was being inquired into in the Court of the committing Magistrate. It is however conceded by the defence that when the case proceeded to trial in the Court of Session the consent of the Local Government was obtained. I am of the opinion that it was not necessary for the prosecution to obtain the sanction of the Local Government while the case was in the stage of an inquiry. I am fortified in my view by the case of Emperor v. Kallappa 1927 Bom. 21. It was then argued that the sanction that was obtained from the Local Government was for the prosecution of the appellant under Section 4-B, of the said Act, and the learned Sessions Judge was not competent to frame a charge in the alternative under Section 5 of the said Act, and later on to convict the appellant under Section 5. The position therefore is that the accused was being tried of an offence which was covered by the sanction and under the provisions of Section 236, Criminal P.C., the learned Sessions Judge upon perusing the commitment order framed a charge in the alternative under Section 5 as well. Moreover, even if the learned Sessions Judge had not framed a charge under Section 5, Explosive Substances Act, he could, under the provisions of Section 237 Criminal P.C., have convicted the appellant under section 5, although he was charged under Section 4-B alone. I am therefore of the opinion that there is no force in the two contentions of law advanced before me.
3. Coming to the facts of the case it appears that on 20th March 1933, Thakur Arjun Singh, the Sub-Inspector of Airwa Katra, was investigating into the theft of a cycle and in the course of his investigation his suspicion fell on Nathu Ram. He therefore proceeded to the house of Nathu Ram and he had in his company three respectable witnesses, Raja Ram, Pyare Lal and Manjan Singh. Ha was also accompanied by two Constables. They reached the house of Nathu Ram and subjected themselves to being searched by him. They then entered the house, did not find any incriminating article in a marha, but later on proceeded towards a verandah which had a room in a corner. This room was locked and it was opened by Nathu Ram with the help of a key tied to his sacred thread. Inside the room was a box and this box again was opened by a key supplied by Nathu Ram. From the box were recovered a number of articles which have been proved to the complete satisfaction of the Court below and myself, by the evidence of the Inspector of Explosives, to be explosive substances. If the prosecution witnesses are reliable then there can be no doubt that the conviction of the appellant under Section 5 is sound.
4. It is however argued by the defence that the Sub-Inspector is a relation of Manjan Singh and the latter has some grievance against the appellant because of the cycle theft and because Manjan Singh is a karinda of the zamindar with whom the appellant had had some revenue litigation. It is also said that Baja Earn is indirectly connected with Manjan Singh. I have given due weight to these submissions but I am not prepared to believe that because of the litigation between Manjan Singh's master and the appellant there could be a conspiracy in which the Sub-Inspector will also join in order to plant certain incriminating articles in the house of the accused. His case is that he was not at his house when the search was made, but was at his field and that his enemies, of whom Manjan Singh was one, had ample opportunity to plant the articles in the room in his absence. He also suggests that these articles belong to the Ramlila Committee and as he had given a portion of his house to the Ramlila Committee the articles might belong to the committee which utilises these explosive articles at the time of the Ramlila fair far the purpose of manufacturing crackers. I have no doubt that the accused was present at his house at the time of the search. If he had been in the fields then somebody undoubtedly would have informed him of the search and because the search lasted for two hours he would have come to his house much before the search was finished, and yet his witnesses want me to believe that it was only when the search was over and the Sub-Inspector had come out of the house that Nathu Ram arrived on the scene. Even assuming that some of the articles found in the box can be used at the time of the Ramlila, I am not prepared to believe that these articles could have been kept in a locked box which was inside a looked room, the keys of which were supplied by the appellant, in the absence of the accused and without his knowledge.
5. I am therefore satisfied that the incriminating articles were in the possession and under the control of the accused. Prom that box were recovered certain other articles like note books and photographs and these the accused admits to belong to himself. This further strengthens me in my view that the other articles were also recovered from the possession of the accused. Finally, it was argued that the sentence of 4 years and 6 months is too severe. Regard being had to the fact that the articles were of a highly dangerous nature and that the note books which the accused admitted to be his note books contained revolutionary songs one might fairly presume that the accused has leanings toward sedition. I dismiss this appeal.