A Section 5 conviction requires proof of conscious possession before the burden shifts to the accused.

On 25 June 2001, police searched the appellant’s house and allegedly seized a Bhartua gun and containers containing powders and other materials.

The forensic reports identified explosive mixtures in some of the submitted materials.

The independent seizure witnesses did not support the prosecution’s account of the recovery; one said he had signed the seizure list at police request, and the other said police had obtained his thumb impression.

The trial court convicted the appellant under Section 5 of the Explosive Substances Act, 1908, and sentenced him to four years’ rigorous imprisonment.

He appealed against that conviction and sentence.

1. Whether the prosecution proved beyond reasonable doubt that the appellant knowingly possessed or controlled the alleged explosive substances, including that he was in conscious possession of them

2. Whether the trial court’s conviction and sentence under Section 5 of the Explosive Substances Act, 1908, disclosed an error warranting appellate interference

Section 5 of the Explosive Substances Act, 1908, applies where a person makes or knowingly possesses or controls an explosive substance in circumstances giving rise to reasonable suspicion that it is not for a lawful object.

The prosecution must prove beyond reasonable doubt that the material is an explosive substance, that the accused made or knowingly possessed or controlled it, and that the circumstances give rise to the prescribed suspicion; only after that burden is discharged does the burden shift to the accused to show a lawful object.

“Explosive substance” includes materials for making an explosive substance under Section 2 of that Act.

The court treated conscious possession as necessary to establish possession for the purposes of Section 5.

The forensic evidence supported the conclusion that some submitted materials contained explosive mixtures, but it did not establish that those materials were in the appellant’s conscious possession.

The independent seizure witnesses did not corroborate the alleged recovery, and their evidence raised doubt about the seizure process.

Since the prosecution had not first proved conscious possession beyond reasonable doubt, the burden did not shift to the appellant to establish a lawful object.

The court therefore found the conviction unsupported by sufficient proof.

It set aside the conviction and sentence, acquitted the appellant, and discharged him and his sureties from their bail obligations.

The appeal was allowed.