The High Court allowed the appeal and acquitted the appellant, holding that seized fireworks did not meet the definition of explosives under the Act. The conviction was quashed partly due to a procedural defect in not serving the seizure list.
Appeal allowed; impugned judgment of conviction set aside; appellant released forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.650 of 2016
Arising Out of PS. Case No.-343 Year-2014 Thana- BHAGALPUR KOTWALI DistrictBhagalpur
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Md. Ansar S/o Md. Yasin resident of Village- Brahpura, P.S.- Ishakchak, Dist.- Bhagalpur.
... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Najmul Hoda, Adv. For the Respondent/s : Mr. Z. Hoda, APP ======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT
Date : 03-07-2019
1. Sole appellant, Md. Ansar has been found guilty for an offence punishable under Section ¾ of the Explosive Substance Act and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.5000/- in default thereof, to undergo S.I. for six months, additionally with a further direction of set off with regard to the period having undergone during course of trial by the Additional Sessions Judge-IIIrd, Bhagalpur vide judgment of conviction dated 28.06.2016 and order of sentence dated 01.07.2016 relating to Sessions Trial No.311/2015 arising out of Kotwali (Tatarpur) P.S. Case no.343/2014, G.R. No.1923/2014.
2. ASI, Satyendra Narayan Singh (PW.2) recorded his self-statement on 05.06.2014 disclosing therein that while he along with Navin Kumar Singh (PW.1) and Gopal Poddar (PW.3) was in day patrolling and as soon as they reached near
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Nagarpalika, he was informed by an informer that the rickshaw which was going ahead of them was carrying bomb whereupon, they cordoned the rickshaw, found three cartoons kept thereupon. On search 200 bomb each weighing 100 gm (totaling 600 pieces) were found and for that, in the presence of Md. Hannan as well as Indu Devi seizure list was prepared. On interrogation, the rickshaw puller disclosed that the aforesaid article were kept by one person who was following but, they have not perceive any such person. Furthermore, the rickshaw puller also tried to mislead them when they questioned to show the place from where the aforesaid cartoons were loaded.
3. On the basis thereof, Kotwali (Tatarpur) P.S. Case No.343/2014 was registered followed with an investigation during course of which the I.O. (PW.4) got the sample examined at FSL, procured sanctioned order and then thereafter, after completing investigation submitted charge sheet followed with order of cognizance as well as trial, meeting with the ultimate result, subject matter of instant trial.
4. Defence case as is evident from mode of crossexamination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermoe, it has also been pleaded that appellant happens to be mere a rickshaw puller and
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so was not at all aware what was kept inside the cartoon having duly sealed while carrying the same to destination as instructed by the person who hired him and on account thereof, no criminal liability could be fasten upon him. However, neither oral nor documentary evidence has been adduced.
5. In order to prove its case, prosecution has examined altogether four PWs who are PW.1-Navin Kumar Singh, PW.2Satyendra Narayan Singh, PW.3-Gopal Poddar and PW.4-Ajay Sharma. Side by side has also exhibited Ext.1-Seizure list, Ext.2Written report, Ext.3-Sanction order, Ext.4-FSL Report. As stated above, nothing has been adduced in defence.
6. Now coming to the status of the witnesses, it is evident that PW.1 had not supported in a manner as projected by other witnesses while PW.2 and PW.3 substantiate the story while PW.4 is the I.O.
7. Heard learned counsel for the appellant, learned A.P.P. Also gone through the record.
8. After perusal of the record, it is evident that copy of the seizure list has not been furnished upon the appellant and so, there happens to be violation of sub-section (7) of Section 100 of the Cr.P.C. and for that, though no cross-examination has been made at the end of the appellant, the prosecution also failed to
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explain the same. The second aspect as is evident from Ext.4, the FSL report is that the sample on chemical examination found containing aluminum as well as potassium nitrate and in the aforesaid background, it has been observed that the aforesaid items happens to be ingredient of a cracker. In order to identify whether presence of aforesaid ingredients comes within the purview of Explosive Substance Act and for that, section 2 thereof, is quoted below:
“(a) 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;
(b) the expression "special category explosive substance" shall be deemed to include research development explosive (RDX), penta erythritol tetra nitrate (PETN), high melting explosive (HMX), tri nitro toluene (TNT), low temperature plastic explosive (LTPE), composition exploding (CE) (2, 4, 6 phenyl methyl nitramine or tetryl), OCTOL (mixture of high melting explosive and tri nitro toluene), plastic explosive kirkee -1 (PEK-1) and RDX/TNT compounds and other similar type of explosives and a combination thereof and remote control devices causing explosion and any other substance and a combination thereof which the Central Government may, by notification in the Official Gazette, specify or the purposes of this Act.”
From the definition as quoted herein above, it is
evident that the ingredients so found by the FSL laboratory is not
at all within the meaning of Section 2 rather when the same has
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been gone through under the Explosive Act, Section 4(d) explains
the same and for better appreciation Section 4(d) is quoted below:
“Section-4(d) “explosive” means gunpowder, nitroglycerine, nitroglycol, gun-cotton, di-nitrotoluene, tri-nitro-toluene, picric acid, di-nitro-phenol, tri-nitro-resorcinol (styphnic acid), cyclo-trimethylenetri-nitramine, penta-erythritol-tetranitrate, tetryl, nitroguanidine, lead azide, lead styphynate, fulminate of mercury or any other metal, diazo-di-nitro-phenol, coloured fires or any other substance whether a single chemical compound or a mixture of substances, whether solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and includes fogsignals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosive as defined in this clause;”
9. Although, Section 5 of the Explosive Act requires
license for manufacturing, possessing, used, sale, transport, import and export of explosive but having some sort of relaxation as is evident from Section 5 of the Explosive Act, 2008 whereunder Ex-govt. has been authorized to make rules for transport, possession of fireworks. For better appreciation same is quoted below:
“5. Power to make rules as to licensing of the manufacture, possession, use, sale, transport, import and export of explosives.— (1)The Central Government may, for any part of 1[India] 2 [] make rules3 consistent with this Act to regulate or prohibit, except under and in accordance with the conditions of a licence granted as provided by those rules, the manufacture, possession, use, sale, 4[transport, import and export] of explosives, or any specified class of explosives.— (1) The Central Government may, for any part of 1[India] 2 [] make rules3 consistent with this Act to regulate or prohibit, except under and in accordance with the conditions of a licence granted as provided by those rules, the manufacture, possession, use, sale, 4[transport, import and export] of explosives, or any specified class of explosives."
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(2)Rules under this section may provide for all or any of the following, among other matters, that is to say:—
(a) the authority by which licences may be granted;
(b) the fees to be charged for licences, and the other sums (if any) to be paid for expenses by applicants for licences; (c) the manner in which applications for licenses must be made, and the matters to be specified in such applications; (d) the form in which, and the conditions on and subject to which, licences must be granted;
(e) the period for which licences are to remain in force; (ee) the authority to which appeals may be preferred under section 6F, the procedure to be followed by such authority and the period within which appeals shall be preferred, the fees to be paid in respect of such appeals and the circumstances under which such fees may be refunded;" (eea) the total quantity of explosives that a licensee can purchase in a given period of time;
(eeb) the fees to be charged by the Chief Controller of Explosives or any officer authorized by him in this behalf, for services rendered in connection with the manufacture, transport, import or export of explosives;]
(f) the exemption absolutely or subject to conditions of any explosives 6[or any person or class of persons] from the operation of the rules.6[or any person or class of persons] from the operation of the rules."
10. Under the aforesaid provisions the Central Government has
framed Explosive Rules and for the present purpose, Rule-9 is relevant one which is quoted below:
“9. No licence needed in certain cases. — Notwithstanding anything contained in rule 7, no licence shall be necessary for the following cases, namely :—
(1) manufacture of explosive in small quantities in an established laboratory for research and development purpose with prior permission from the Chief Controller under the conditions as may be imposed by him;
(2) manufacture, possession and sale of colour or star matches with prior permission from the Chief Controller under the conditions set forth by him in SET- XVI referred to in Part 4 of Schedule V:
Provided that the manufacture, possession and sale of colour or star matches shall be done in a factory approved by the Chief Controller and any person desiring to manufacture, posses and sell colour or star matches shall submit to the Chief Controller, an application, plans of the proposed building and site drawn to scale, description of process or work to be carried out, detailed process of manufacture and prescribed scrutiny fee;
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(3) transport of explosives by other than mechanical propelled vehicle, within the factory premises, from place of storage to place of use, port of import to storage place within the notified port premises;
(4) transport of safety fuse and fireworks;
(5) possession of fireworks not exceeding one hundred kilogram for own use and not for sale;
(6) possession by any person for his own private use and not for sale of gunpowder not exceeding five kilograms and fifty metres of safety fuse in any State other than Bihar, Kerala, Tamilnadu and West Bengal and of small arm nitrocompound not exceeding five kilograms except in the State of Kerala;
(7) possession by Indian Railways of flare lights or other explosives for its own use and not for sale to any other person by transfer or otherwise for maintaining railways, tracks, tunnels if the provisions of the Act and these rules are otherwise complied with;
(8) possession of any explosive, which is not for sale and is required solely for the navigation of aircraft, when kept in an aircraft for use therein, or for distribution to other aircraft or to aerodromes or at an aerodrome for use there or for distribution to aircraft or to other aerodromes:
Provided that the maximum quantity so possessed shall not exceed twenty five kilograms when carried in an aircraft and fifty kilograms when kept at an aerodrome; and
(9) possession and sale from a shop of amorces and sparklers in quantity not exceeding one hundred kilogram.”
11. Furthermore, from perusal of Rule-2, apart from
others fireworks has been defined at serial no.24 of Rule-2 and for
better appreciation same is quoted below:
“(24) “fireworks” means low hazard explosive comprising of any composition or device manufactured with a view to produce coloured fire or flame, light effect, sound effect, smoke effect (coloured or narual), or combination of such effect and includes fog-signals, fuses, [such as quick match and micro cord]”
12. Rule-2 Serial No.25 deals with fireworks
composition and for better appreciation, same is quoted below:
“(25) “fireworks composition” means any chemical compound mechanically mixed preparation of an explosive or inflammable substance that is used for the purpose of making manufactured fireworks and is not
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included in any other class of explosive, and includes any star or coloured fire composition;
13. Apart from this, Section 3 of Explosive Substance
Act deals with the situation where explosion has been and section 4 deals with an attempt in that direction by an accused. From plain reading of the evidence of the witnesses as well as from the statement of the appellant recorded under Section 313 of the Cr.P.C., it is abundantly clear that irrespective of deficiency having during course of preparation of seizure list in utter violation of section 100 of the Cr.P.C., there happens to be an admission by way of suggestion to PW.2 that there was recovery and in likewise manner, an admission during course of statement recorded under Section 313 of the Cr.P.C. So, it goes beyond controversy with regard to recovery of 600 pieces of bomb. But, whether it was a bomb or whether it was mere a firework, is found duly substantiated by the F.S.L. report. Furthermore, the evidence available on record does not satisfy/fulfill any of ingredient of composition of Section 3 or 4 of Explosive Substance Act, whereupon conviction under Section ¾ of the Explosive Substance Act happens to be legally not maintainable.
14. In any view of the matter, appellant would not be held to be guilty under any of the offence whereupon, is allowed
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to be released forthwith if not wanted in any other case after setting aside the judgment impugned. Thus appeal is allowed.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
| AFR/NAFR | AFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 05.07.2019 |
| Transmission Date | 05.07.2019 |
3 issues framed by the court
Whether the ingredients found in the seized substance fall within the definition of explosive under the Explosive Substances Act.
Whether failure to supply a copy of the seizure list to the appellant violates Section 100 Cr.P.C. and affects the conviction.
Whether the conviction under the Explosive Substances Act is legally sustainable on the evidence.
5 provisions across 3 enactments
Md. Ansar
The State of Bihar
Aditya Kumar Trivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
