M.M. Punchhi, J.
1. Gamdoor Singh, the appellant/petitioner, was stated to be on 18-7-1977 a pedestrian on a road near village Chak Duhe Wala, district Faridkot. He was confronted by a patrol party, riding in a Government jeep, comprising of Gurcharan Singh, Station House Officer, Police Station Saddar, Muktsar, Gurdev Singh, Assistant Sub-Inspector and Kashmira Singh, Head Constable. Gamdoor Singh tried to slip away on seeing the police party and as suspicion arose, the said party effected his arrest. Gamdoor Singh was carrying a jhola which on search was found to contain a .32 pistol, a .38 revolver, two hand grenades and two fuses. They were taken into possession under relevant seizure memos. A letter was sent to the Police Station for registration of the case. Since the substance recovered from Gamdoor Singh gave rise to commission of two different offences, two separate challans were presented against him; one under Sections 4/5 of the Explosive Substances Act, 1908 and the other under Section 25 of the Arms Act. The first afore-referred to case was committed to the Court of Session and the second afore-referred to case was kept by. a Judicial Magistrate. The split course adopted gave rise to two trials.
2. Before the Court of Session, Gamdoor Singh appellant was read over charge under Sections 4/5 of the Explosive Substances Act, 1908. He pleaded not guilty to the charge. The prosecu- tion then examined Gurdev Singh, Assistant Sub-Inspector (P. W. 1); Inspector Gurcharan Singh, Station House Officer (P. W. 2), Sukhwant Singh, Head Constable (P. W. 3) and Radha Raman, Constable (P. W. 4) besides tendering in evidence the sanction for the prosecution of the appellant and the report of the Deputy Controller of Explosives. Neither the statements of the witnesses were challenged in cross-examination nor were the genuineness of afore-referred to sanction or the report disputed by the defence. During examination under Section 313, Criminal Procedure Code, the appellant admitted the case of the prosecution as put to him and pleaded that he had four sons, out of whom the eldest was aged 10 years, and that he was the sole bread-winner of the family. He led no evidence in defence or in the matter of sentence. It is on the admitted case of the prosecution that the appellant came to be convicted under Section 4 of the Explosive Substances Act and was sentenced to three years' rigorous imprisonment and ordered to pay a fine of Rs. 1,000/-, in default further rigorous imprisonment for six months. Such order was passed on 12-4-1979. '
3. Gamdoor Singh petitioner while facing trial under Section 25 of the Arms Act before the Judicial Magistrate 1st Class, Muktsar, was confronted with the evidence of only two prosecution witnesses examined at the trial. They were Kashmir Singh, Head Constable (P W 1) and Gurcharan Singh, Inspector, Station House Officer (PW2). Gurdev Singh was given up as unnecessary. Now this time the petitioner denied the material allegations of the prosecution and pleaded false implication. He led defence evidence also. Placing reliance on the prosecution evidence and rejecting the defence version, the trial Magistrate convicted the petitioner under Section 25 of the Arms Act, On hearing the petitioner on the question of sentence, the learned trial Magistrate took into account the conviction of the petitioner recorded by the Court of Session, Faridkot, under the Explosive Substances Act, which had arisen from the same recovery. He thus sentenced him to four months rigorous imprisonment. An attempt to challenge the said conviction and sentence before the appellate Court proved abortive as the successor Sessions Judge too abided by the view that his learned predecessor had recorded an order of conviction in the Explosive Substances Act case and held the recovery to be proved. However, in the matter of sentence, the petitioner could get the concession that the same was ordered to run concurrently with the one imposed under the Explosive Substances Act.
4. As both these matters have roots in a self-same occurrence, they have appropriately been put up for disposal together. Thus the appeal and the revision petition would be disposed of by this judgment.
5. It would seem that the appeal of the appellant would not be competent in view of Section 375 of the Code of Criminal Procedure if it is taken that the appellant was convicted on his plea of guilt. There is notably a departure from the analogous provision in the Code of Criminal Procedure, 1898 inasmuch as appeal thereunder against a conviction recorded on a plea of guilt, though otherwise not competent, was exceptionally competent to the extent or legality of the sentence. Now under the new Code of Criminal Procedure, even the extent or legality of the sentence has become unquestionable. Yet the question here still would remain whether the appellant had pleaded guilty and had been convicted on such plea.
6. Resume' of the facts aforementioned discloses that to the charge framed against the appellant, he pleaded not guilty. All what he did was that he admitted the case of the prosecution when put to him under Section 313, Criminal Procedure Code. To put it differently, he admitted the 'facts alleged against him by the prosecution which might have established his guilt but his plea was not as such of guilt. I am inclined to take this view in favour of the appellant being, influenced by the factor that he just faced the prosecution evidence, did not challenge it in cross-examination and admitted the facts as posed to him in his statement under Section 313, Criminal Procedure Code. Though it remains unclear on the record, yet the possibility cannot be ruled out that such stance adopted by the appellant was as a result of some understanding to gain some concession in the matter of sentence. It seems that he was not happy with the outcome of the bargain and that is the reason that he chose to dispute the prosecution allegations in the Arms Act case trial before the Magistrate.
7. It was contended on behalf of the appellant that even if the case for the prosecution was admitted, conviction under Section 4 of the Explosive Substances Act, 1908 was unsustainable for two reasons (1) that the hand grenades were not found fitted with an igniter set, a device for initiating explosion in the hand grenades, and thus the substance recovered did not come within the definition of 'explosive substance' given in Section 2 of the Explosive Substances Act, 1908 and, (2) that the possession of the said hand grenades could not be termed as unlawful or malicious so as to bring it within the mischief of Section 4 of the said Act. Section 2 defines an explosive substance for the purpose of the Act as under:
Explosive substance' shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.
8. The definition as reproduced above is inclusive and by no means exhaustive. Any contrivance by itself, or with the help of another, which would go to make an explosive substance would be covered by the definition. Thus the hand grenades recovered from the possession of the petitioner would be explosive substances within the meaning of the definition despite the fact that in order to explode them, the igniter set had to be fitted to such types. It is noteworthy that the Deputy Controller of Explosives in his report. Exhibit P. 5, opined that each of the hand grenades was capable of endangering life on explosion after being suitably initiated with the igniter set or otherwise. There thus is no substance in the first contention raised which merits rejection.
9. With regard to the second contention raised, language of Section 4 of Explosive Substances Act may be noticed
4. Punishment for attempt to cause explosion, or for making or keeping ex- plosive with intent to endanger life or property. Any person who unlawfully and maliciously
(a) does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in India of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive sub-stance with intent by means thereof to endanger life, or cause serious injury to property in India, or to enable any other person by means thereof to endanger life or cause serious injury to property in India; shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added.
10. The expression 'unlawfully' signifies 'not for a lawful object' and the term 'maliciously1' means and implies an intention to do an act which is wrongful, to the detriment of another person, per Bowen. LJ in Mogul Steamship Co. Ltd. v. McGregor (1889) 23 QBD 598. The respective meanings assigned to the two words were adopted therefrom with approval by a Division Bench of the Lahore High Court in Dula Singh v. Emperor AIR 1928 Lah 272 : 29 Cri LJ 481, the judgment being authored by Sir Shadi Lai. And what was the ambit of the word 'maliciously' came to be explained by a Division Bench of the Lahore High Court in Bhagat Singh v. Emperor AIR 1930 Lah 266 : 31 Cri LJ 290. It was held therein that the word 'malicious' used in Section 3 of Explosive Substances Act (and the same sense has got to be used in Section 4 thereof) is in the legal sense rather than the popular sense. The Division Bench quoted in adopting the dictum of Bailey, J. in Bro-mage v. Proser (1825) 4B&C; 247, therein the following paragraph:
Malice in common acceptation means ill will against a person, but in its legal sense it means a wrongful act, done intentionally without just cause or excuse. Ii I give a perfect stranger a blow like- ly to produce death, I do it of malice because I do it intentionally and without just cause or excuse.' 1 Now whether in the legal sense, the possession of hand grenades with the appellant can be considered as unlawful and malicious rests on the ground whether the appellant had done the act complained of intentionally and without just cause or excuse. The prosecution has proved the possession of the hand grenades with the appellant and it is for him to plead justness of the cause of possession or a valid excuse. It is [only in that event that the prosecution has further to prove that the cause or excuse so pleaded or suggested was in fact without justification. No such plea has been entered by the appellant and rather no cause or excuse has been pleaded for possessing the hand grenades. For the view now taken, there is no cause to upset the conviction of the appellant under Section 4 of the Explosive Substances Act which is here-'by maintained.
11. As a logical sequel to the acceptance of the case of the prosecution in one case, the same case cannot be doubted in the other matter. Thus the conviction of the petitioner under the Arms Act also should and has to be maintained.
12. Adverting to the question of sentence and more so when the possibility of sentence bargaining cannot be ruled out in the Explosive Substance matter, some leniency towards sentence is called for. The learned Counsel appearing for the appellant/petitioner has pleaded for his release on probation. Keeping the question aside whether release on probation would be permissible when two convictions are simultaneously being upheld, the question still would remain whether it is a case for such release. The petitioner was found to be in possession of not only explosive substances, but fairly expensive weapons of foreign origin. The .38 revolver was manufactured in the U. S. A. and the .32 pistol was of British make. It appears that the appellant/petitioner gleefully indulges in the possession or trade of such dangerous weapons and materials. It has been stated at the bar that the appellant is a rich man and a landlord and belongs to a respectable family. His brother is stated to be a Sarpanch of the village. These factors instead of supporting the claim of the petitioner for his release on probation, rather counter it, for such activity is a privilege of not only the rich and the affluent but also of men of dangerous and criminal propensities. But as said before, some concession is due to the appellant on the matter of sentence. Having regard to all the circumstances of the case, it would be appropriate to reduce the sentence of the appellant/petitioner under Section 4 of Explosive Substances Act to a period of Vh years while sustaining the fine together with the default clause. Sentence under the Arms Act would run concurrently with the aforesaid sentence as earlier ordered by the Court of Session.
13. Subject to the modification in the sentence, both the appeal and the revision petition otherwise fail and are hereby dismissed.