1. This case comes to us on a reference by the learned Sessions Judge of Ganjam in which reference he recommends that the conviction of a man named Chidamabaram for an act in contravention of Rule 35, Explosives Rules, 1914 and the fine of Rs. 50 imposed upon him should be set aside. The facts of the case are that a certain firm had consigned some packages described as 'fireworks' weighing 52 maunds 36 seers to one Indupuri Narasimham and that he having no license for explosives did not take delivery of them but Chidambaram did so paying the money into a Bank. He got the railway receipt and received the goods on 8th August 1927. He was thereafter charged with an act in contravention of Rule 35, namely, being in possession of explosives not in accordance with the conditions of the license granted under the rules for possession. He had a license entitling him to have explosives weighing up to 200 lbs. The origin of the complaint seems to be that some rival trader in the place complained to the police that the consignment was to be taken possession of by the accused. Certain facts appear and one fact is that at the hearing of the complaint the actual consignment or parts of it were not produced in Court but certain material objects were and the witnesses stated that the crackers taken delivery of by the accused were similar to those material objects. If that is true, then it is obvious that the conviction in this case was wrong because they are clearly toy fireworks and the rules do not apply to the manufacture, possession etc. of those fireworks. But it is said that those material objects are not samples of what the consignment contained; but all we can say with regard to that is that the police had ample opportunities of satisfying themselves when the consignment was at the railway station as to its nature. Certain cases, we are informed, were opened and on examination were seen to contain very small fireworks; and it was sought to collect the amount of gun-powder that these articles contained and after a most diligent attempt the quantity of gun-powder obtained was simply infinitesimal.
2. The Joint Magistrate seems to have thought that the onus of showing that an offence under the Explosives Rules had not been committed lay upon the accused, namely, that it was for him to produce the fireworks in Court and satisfy the Court that they were only toy fireworks and seems to have proceeded on the assumption that, as the consignment was labelled fireworks and as delivery on the railway receipt was taken of these articles as fireworks by the accused, it was tantamount to an admission that the articles in the consignment were articles coming within the Explosives Rules. The learned Sessions Judge has taken the view that the prosecution had not proved the case that there had been any contravention of Rule 35 by the accused and furthermore that the accused was in possession of explosives and of a greater quantity than 200 lbs. With that view of the learned Sessions Judge we entirely agree. We think that the burden of proving that these were explosives such as are covered by the Explosives Rules is clearly upon the prosecution and that the mere fact that the accused took possession of and signed for a consignment which was described as fireworks does not amount to an admission by him that these were explosives such as are within the purview of these rules. Under these circumstances we set aside the conviction and order the fine, if paid, to be refunded.