Kuppuswami Ayyar, J.
1. The appellant has been convicted by the learned Sessions Judge of Kistna for an offence punishable under Section 5 of Act VI of 1908 and sentenced to transportation for 5 years. He was charged also for having committed an offence under Section 4 of that Act but he has been acquitted in respect of the same.
2. The Reserve Police Force which was temporarily located at Bezwada was housed in temporary huts by the side of the Bandar canal. On 15th November, 1942, even before the huts were completed, a corner in the line caught fire. On pulling down the palmyra leaves from the roof, two cotton balls were noticed each J an inch in diameter. The balls were suspected to be phosphorus balls. On 6th December, 1942, when a sentry was keeping watch, he saw fire breaking, out from the eastern side of the police line at 5-30 p.m. At 3 p.m., on 7th December, 1942, the house of the accused was searched in which several articles were found, M. Os. i to 17, viz., a Congress flag, an earthern tub, a dirty black cotton, a cigarette tin containing yellow powder, another containing grey powder and a third containing chocolate powder, a cigar lighter with a rope foil, an empty tin, an empty green bottle, a white bottle containing white tablets, a bottle containing petrol, a bottle of denatured spirit, a big jar containing a liquid like varnish, a sandal wood oil tin, a book of ' Swatantragarjana,' rules and objects of Andhra Congress Socialist Party, and two bcoks of ' Bhinna Margamulu ' of Andhra Rashtra Congress Sangham. Among the articles recovered was also a blue bottle with yellow phosphorus in the water inside., The accused was not there nor was he found. A charge-sheet under Section 436, Indian penal Code, Rule 35(4) read with rule (a) of the same rule and Section 121 of the Defence of India Rules, and Sections 3, 4 and 5 of the Explosive Substances Act read with Ordinances Hand III of 1942, was filed. Sanction was accorded by the Government to the prosecution filed under Sections 4 and 5 of the Explosive Substances Act. He was prosecuted for the -charge-framed-only -under.Act VI of 1908, for possessing yellow phosphorus, and he has been convicted for. an offence punishable. under section 5 of that Act. On 19th'October, 1944; the accused surrendered: himself before: the Joint Magistrate, Bezwada. As pointed, out by the learned Assistant Sessions Judge, the Committing Magistrate had indicated that though the,police tried to connect the accused with the fire in the police line, the prosecution failed to connect him with the offence of setting fire to the police huts. The accused admitted that he had all articles mentioned above except the bottle containing phosphorus in water, which he said was not his. But he said he had a smaller bottle in which he had kept some scent. There was evidence that when the house of the accused was searched there were mediators present then and when the articles were seized a mahazar was also written. From the evidence of the witnesses present, it is clear that all the articles, M. Os. 1 to 17 were in his house and that M.O. 8 was one of them.
3. The main question for consideration is whether the yellow phosphorus which was said to have been found in M.O. 8 is an explosive substance, the possession of which is an offence under Section 5 of Act VI of 1908 which remarks:
Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control-for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable' with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a term which may extend to five years, to which fine may be added.
4. The prosecution has to prove that the accused had in his possession any explosive substance under circumstances which lead to a reasonable suspicion that he is not having it for a lawful object. As already stated the Committing Magistrate himself has found that it has not been proved that the accused had anything to do with the fire in the police lines. In the charge, it is stated that the explosive substances in; his possession were phosphorus, petrol, denatured spirit, lead chromate, aluminium powder and ferric oxide. The appellant was a carpenter and there is nothing surprising in his having had petrol or denatured spirit, lead chromate, aluminium powders and ferric oxide for his profession. Therefore it cannot be said that, from the fact that he had them he must have had an unlawful intention or that there were circumstances to indicate that he was not having them for a lawful object. It is only in respect of the yellow phosphorus it is urged that its possession would make it an offence punishable under Section 5. Yellow phosphorus by itself is not an explosive substance, and under Section 2 of the Act, the expression, 'explosive substance' is defined as follows:
In this Act the expression '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.
5. It is stated in this case that it is a material used or intended to be used or adapted for causing or aiding in causing any explosion in or with explosive substances. It is not shown that this phosphorus was used or was intended to be used for causing or aiding in causing any explosion. P.W. 11 who is the officiating Inspector of Explosives states that the yellow phosphorus found in M.O. 8 was an incendiary material which spontaneously burns when exposed to air, that by itself it is not an explosive substance as defined under Explosive Rules. He said that under the Explosive Substances Act this phosphorus substance in conjunction with other explosive material may form a component part of an explosive contrivance. He added that the phosphorus may serve as the initiator to cause explosion of that explosive contrivance. He,also stated that he did not find from the 9 material objects filed in this case that any combination of the same would form explosives. He further stated that he did not find any materials with relation to which any of the M. Os; including phosphorus can be regarded as explosives. He admitted that petrol was used for removing dust.from furniture. As a matter of fact in Ex. E-t, the report submitted by the witness, he has not stated that any articles sent, to him inclusive of the phosphorus which he destroyed were explosive in character. Nor has:he stated that phosphorus falls within the category of explosive substances as defined in Act III of 1908. The learned Judge, after pointing out that the testimony of P.W. 11, the expert may not help one to decide whether the material 'phosphorus ' would fall clearly within the first or the second Category of ' Explosive substance '' as defined under Section 2 of the Act, says that any doubt on the question must be held to have been set at rest by G.O. Ms. No. 4316 Home Department, dated 20th November, 1942. It is a notification under the Defence of India Rules and has nothing to do with the Explosives Act and it says that His Excellency the Governor of Madras prohibits the possession, carrying, use, sale or other disposal by any person of yellow phosphorus, in the Province of Madras, except under, and in accordance with the terms and conditions of a license granted by the Provincial Government or the Commissioner of Police in the City of Madras and the District Magistrate concerned elsewhere. It no doubt prohibits the possession of yellow phosphorus without license. It is not for contravention of this notification Issued under the Defence of India Rules the accused has been prosecuted and fined. In another G.O. Ex. H-2 it is mentioned that sulpher, sulphides of arsenic, red phosphorus and yellow phosphorus are substances, which are capable of being used in the manufacture of bombs. After quoting G.O. 387 Ex. H-2, the learned Judge observes, ' By virtue of such notification red phosphorus and yellow phosphorus ' are declared as explosive substances. In these two G. Os. all that is stated is that they can be used in the manufacture of explosives and therefore it is necessary to restrict the possession of such articles by individuals; but it cannot amount to a notification under Section 17 of the Explosives Act, 1884. Further this notification was under the Defence of India Rules and not under Section 17 of the Explosives Act. All that is urged before me is whether this phosphorus can be said to be a material used or intended to be used or adapted for causing, or aiding in causing any explosion in or with any explosive substance. There is absolutely no evidence that the yellow phosphorus as found in the bottle had been used or was intended to be used in causing any explosion in or with any explosive substance, because it was found in water in the bottle in its ordinary state. It is only an incendiary. It can be used in a bomb which is an explosive substance as an incendiary, but there is nothing to show that this phosphorus as found was adapted for causing or aiding in causing any explosion in or with any explosive substance. If it had been used or was found in a state in which it was used or adapted for exploding a bomb, then it could be said that it would be an explosive substance as defined in Section 4 of the Explosive Substances Act. In the natural form in which it was found at the time of the search in water in a bottle, it is not an explosive substance as defined in Act VI of 1908. I therefore find that the accused is not guilty of the offence with which he is charged. Possession of it might be an offence under the Defence of India Rules by virtue of the notifications, Exs. H-1 and H-2, but it is not the subject of the present charge.
6. Consequently, the appeal is allowed, the conviction and sentence are set aside and the accused acquitted.