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Madhya Pradesh High Court

Piyush Jain vs The State Of Madhya Pradesh on 11 October, 2017

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                                                        Cr.Rev.No.674/2010




 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
                            AT JABALPUR
     (SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)

                  Criminal Revision No.674/2010


                               Piyush Jain
                                    Vs.
                        State of Madhya Pradesh


Shri Vivek Shukla, Advocate for the applicant.
Shri V.P.Pandey, Govt. Advocate for the respondent/State.



Whether approved for reporting : (Yes/No).


                              O R D E R

(11.10.2017) This revision petition under section 397/401 of the Cr.P.C. has been preferred on behalf of the applicant seeking quashment of the charge framed against the applicant vide order dated 19.2.2010 passed by Fifth Additional Sessions Judge, Rewa, in Sessions Trial No.143/2009.

2. Facts giving rise to the present petition, briefly stated, are that on 13.2.2009 nearabout 8 PM during the checking of the vehicles Police Station Sohagi found 20 bags of Ammonium Nitrate and one bag of detonating material in Vehicle No.MP17 T 1411. The said vehicle was driven by one co-accused Bijendra Singh who informed that other co-accused Mishri Lal and Deep Kumar were also assisting him in transporting the aforesaid explosive substance. The aforesaid explosive substance was being transported without any licence or authority, therefore, offence under sections 4, 5 and 6 of the Explosive Substances Act was registered against the aforesaid accused persons, viz. Bijendra Singh and others.

3. During investigation, it was found that the present applicant was also involved in this crime as he is licence holder of selling of the aforesaid explosive substances and the explosive substance, Ammonium Nitrate, which was found in the aforesaid 20 bags was sold by the petitioner to the accused persons, which was in violation of rules 32 and 141 of the Explosive Rules, 1983, and the same is punishable under sections 4 and 5 of the Explosive Substances Act as he has sold the explosive substance to the persons who have no licence, permission or authority to purchase it, which is also punishable under section 6 of the Explosive Substances Act. After obtaining the report of FSL, charge-sheet was filed before the Court of Judicial Magistrate who committed the case to the court of Sessions and the First Additional Sessions Judge by the impugned order dated 19.2.2010 has framed charges against the applicant.

4. On behalf of the applicant it is submitted that the learned trial court has framed the charges without considering the facts, evidence and law concerned. The applicant have a right to sell Ammonium Nitrate under the licence issued under the Explosive Rules, 2008, and on the date of incident, i.e. 13.2.2009, the Explosive Rules, 1983 was not in force as the same have been repealed by the Explosive Rules, 2008 w.e.f. 31.12.2008. Thus, on the relevant date the Explosive Rules, 2008, was in force and the Explosive Rules, 2008 does not contain the same provision as mentioned in rule 141 of the Explosive Substances Rules, 1983, which provides that no person shall sell any explosive substance to any person who is not authorized to possess such explosives under these Rules. So far as rule 32 of the Explosive Rules, 1983, is concerned, it is related to licence for transport and issue of passes; hence, not applicable against the applicant. It is related to the act of transportation of other co-accused. Therefore, it cannot be said that the applicant has violated any existing rules at the time of incident. Therefore, no charge can be framed against him for violation of the aforesaid rules.

5. So far as the charge under section 6 of the Explosive Substances Act is concerned, the same is also not applicable in this case. The provision of section 6 is quoted hereinbelow :-

6. Punishment of abettors.--Any person who by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets or is accessory to, the commission of any offence under this Act shall be punished with the punishment provided for the offence.

6. This provision is related to abetment of offence punishable under section 4 and 5 of the Explosive Substances Act, which are quoted hereinbelow :-

4. Punishment for attempt to cause explosion, or for making or keeping explosive 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 special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion 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 substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, 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,--

(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;

(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.]

5. Punishment for making or possessing explosives under suspicious circumstances.--Any person who makes or knowingly has in his possession or under his control any explosive substance or special category 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 punished,--

(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine;

(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

7. In this case, in the charge-sheet, there is no material to prima facie believe that the applicant has committed the aforesaid offence. There is no evidence that the recovered explosive material was sold out by the applicant. The cash memo and the account which has been seized by the prosecution does not show that the applicant sold out any explosive substance at any time to other accused persons from whose possession the explosive substances have been recovered. Therefore, the learned trial court has without applying the mind simply only on the basis of averments made in the final report, framed the aforesaid charges against the applicant. Hence, the same be quashed.

8. Refuting the aforesaid contention, learned counsel for the respondent/State opposed the petition and prayed for dismissal of the same.

9. Having heard the contentions advanced by learned counsel for the parties and on perusal of the record of the court below, in view of this Court the contentions advanced by learned counsel for the applicant has substance. Against the applicant, first charge has been framed with regard to contravention of the provisions of rules 32 and 141 of the Explosive Rules, 1983, which is not in existence on the date of incident, as the same was repealed by the Explosive Rules, 2008, and there is no provision in the Explosive Substances Rules, 2008, with regard to prohibition of Sale of explosive material as mentioned in equivalent Rule 141 of the Explosive Rules, 1983. So far as rule 32 of the Explosive Rules, 1983, is concerned, the same is irrelevant against the applicant as he was not transporting the explosive substances. Similarly, there is no material in the charge-sheet to connect the present applicant with the crime committed by other accused persons in whose unauthorized possession explosive substance was found. The alleged explosive substance Ammonium Nitrate is also not covered by the Explosive 5 Cr.Rev.No.674/2010 Rules, 2008, as in this regard communication of the office of the Chief Controller of Explosive is relevant and that communication is also part of the charge-sheet.

10. In the aforesaid circumstances, prima facie it appears that the learned trial court has not applied its mind and mechanically framed the charge against the applicant. It is the duty of the concerned court to see as to whether the material available in the record is prima facie sufficient to prosecute the accused in commission of any offence triable by him. There is no doubt that at this stage meticulous appreciation of evidence is not required; but, prima facie existence of evidence disclosing commission of the crime should be seen as the prosecution of a person without any ground would amount to misuse of the process of court and cause grave injustice to the petitioner.

11. In view of the aforesaid discussion, this petition is allowed and the order 19.2.2010 framing charge and consequential proceedings against the applicant is quashed. This order shall not affect the proceedings pending against other co-accused persons. Interim order dated 25.10.2010 and modified by order dated 9.5.2012 stands vacated.

12. A copy of this order be sent to the trial court forthwith for information and necessary compliance.

(J.P.Gupta) JUDGE HS