Jharkhand High Court
Bhuneshwar Mahto vs State Of Jharkhand on 18 August, 2025
Bench: Rongon Mukhopadhyay, Rajesh Kumar
Neutral Citation No. ( 2025:JHHC:23937-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 1343 of 2018
Bhuneshwar Mahto, son of Shobhi Mahto, resident of Village: Narki
(Sanpmarwa), PO: Bishnugarh, PS: Bishnugarh, District: Hazaribag.
... Appellant
-Versus-
State of Jharkhand ...Respondent
CORAM :- HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE RAJESH KUMAR
For the Appellant : Mr. Jyoti Prasad Sinha, Advocate
For the Respondent : Mrs. Priya Shrestha, Spl.P.P.
...
CAV on: 25/04/2022 Pronounced on: 18/08/2025
Per, R.Mukhopadhyay, J.
Heard Mr. Jyoti Prasad Sinha, learned counsel appearing for the appellant and Mrs. Priya Shrestha, learned Spl.P.P.
2. This appeal is directed against the judgment of conviction and order of sentence dated 15.09.2018 passed by Shri Sanjay Kumar Singh No.1, the learned Additional Sessions Judge-XII, Hazaribag in S.T. No. 291 of 2012, whereby and whereunder, the appellant has been convicted for the offences punishable under sections 25(1-B)a/ 26 of the Arms Act, sections 3/4 of the Explosive Substances Act and section 17 of the CLA Act and has been sentenced to undergo RI for 3 years along with a fine of Rs.5000/- for the offence punishable under section 25(1-B)a of the Arms Act and in default in payment of fine to undergo SI for 3 months, RI for 7 years along with a fine of Rs.5000/- for the offence under section 26 of the Arms Act and in default in payment of fine to undergo SI for 3 months, RI for 10 years along with a fine of Rs.10000/- for the offence under section 3 of the Explosive Substances Act and in default in payment of fine to undergo SI for 6 months, RI for 10 years along with a fine of Rs.10000/- for the offence punishable under section 4 of the Explosive Substances Act and in default in payment of fine to undergo SI for 6 months, RI for a period of 6 months along with a fine of Rs.5000/- for the offence under section 17 of the CLA Act and in default in payment of fine to undergo SI for 1 month.
3. The prosecution case arises out of the self-statement of Anil Kumar 1 Criminal Appeal (DB) No. 1343 of 2018 Singh recorded on 11.03.2010 in which it has been stated that a secret information was received by the Superintendent of Police, Hazaribag that Bhuneshwar Mahto (appellant) a hardcore extremist has come to his house equipped with explosive substances in order to execute some devious plan. At this information two separate teams were constituted by the Superintendent of Police, Hazaribag and the Superintendent of Police, Bokaro. It has been alleged that both the teams along with CRPF personnel reached village Sapmarwa and surrounded the house of Bhuneshwar Mahto. On entering the house Bhuneshwar Mahto was found sitting in the courtyard with a rifle kept on his thigh. He was overpowered and the rifle was seized.
Based on the aforesaid allegations, Bishnugarh PS Case No. 33/10 was instituted against Bhuneshwar Mahto. On completion of investigation charge-sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 291 of 2012. Charge was framed against the accused under section 25(1-B)a/ 26 of the Arms Act, sections 3/ 4 of the Explosive Substances Act, section 17 of the CLA Act and section 13 of the Unlawful Activities (Prevention) Act which were read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as seven witnesses in support of its case.
5. PW-1Ram Dayal Munda was posted as an Assistant Sub Inspector of Police in Bishnugarh PS and on 11.03.2010 on the basis of the self- statement of Anil Kumar Singh he had registered Bishnugarh PS Case No. 33/10. He had been handed over the investigation of the case. The fardbeyan and the endorsement on the same by Anil Kumar Singh have been proved and marked as Ext.1/1 & 1 respectively. His endorsement has been proved and marked as Ext.1/2. In course of investigation, he had recorded the re- statement of the informant and had inspected the place of occurrence which is in the house of Bhuneshwar Mahto at village Sapmarwa. He had recorded the statements of the villagers. He has proved the seizure list which has been marked as Ext.2. The formal FIR has been proved and marked as Ext. 3. On account of his transfer he had handed over the investigation to the officer-in- charge Anil Kumar Singh.
In cross-examination he has deposed that the confessional statement of the accused was recorded which has been marked as Ext.4.
6. PW-2 Rajeev Kumar was posted as a Sergent Major at Police Training 2 Criminal Appeal (DB) No. 1343 of 2018 Centre, Hazaribag and on 30.04.2010 ASI Ram Awadh Paswan had brought the material exhibits of Bishnugarh PS Case No. 33/10 for testing. On opening the same two .303 rifles and 50 rounds of factory made .303 live cartridges were found. The rifles were exhibited as Ext.1 & 2 while the 50 rounds of live cartridges were marked as Ext.3. Rifles and cartridges were tested and they were found to be workable and dangerous to human life. He has proved the test report which has been marked as Ext.5.
In cross-examination he has deposed that he is not a ballistic expert but he has received training in inspection of arms.
7. PW-3 Ram Awadh Paswan had taken over the investigation of the case from the officer-in-charge of Bishnugarh PS Anil Kumar Singh. On going through the case diary he has found that the investigation was almost complete in all aspects. He had received the test report from the Sergent Major and on receiving the sanction order he had submitted charge-sheet under sections 25(1-B)a/ 26 of the Arms Act, sections 3/4 of the Explosive Substances Act, section 17 of the CLA Act and supplementary investigation was kept pending for the offence under sections 10/13 of the UAP Act.
In cross-examination he has deposed that in course of investigation he had not recorded the statement of any witnesses. He had not obtained the sanction order for prosecuting the accused under sections 10/13 of the UAP Act.
8. PW-4 Rakesh Kumar Sharma was posted as an Inspector in CRPF 22 Battalion in F-Company and on 11.03.2010 he was informed that in village Sapmarwa extremist Bhuneshwar Mahto and his accomplices have come. This information led to a special team constituted by Superintendent of Police, Hazaribag and Superintendent of Police, Bokaro in which the police personnel of Bishnugarh PS, Nawadih PS and CRPF F/22 Battalion were involved. The CRPF team had left the camp at 5:00 a.m. and at 7:00 a.m. near village Sapmarwa the team had met Superintendent of Police, Bokaro and officer-in-charge of Nawadih PS. The special team had reached Sapmarwa village at 8:00 a.m. and after surrounding the village with the help of local residents the house of Bhuneshwar Mahto was searched and he was apprehended with the firearms. On search of the premises two rifles of .303 bore, 45 live cartridges and explosive substances were recovered. A seizure list was prepared of the seized articles.
In cross-examination he has deposed that the search in the house of Bhuneshwar Mahto was conducted by the officer-in-charge of Bishnugarh 3 Criminal Appeal (DB) No. 1343 of 2018 PS and other police officials.
9. PW-5 Jagdish Prasad Yadav was posted as an Assistant Commandant in CRPF 26 Battalion Company 'A' and on 11.02.2010 he had received an information from the Additional Superintendent of Police that in village Sapmarwa some extremists are planning to commit some destruction. He has stated that he along with officers-in-charge of Gomia PS, PTPS, Nawadih PS and the Superintendent of Police left for conducting a search operation. The police personnel from Bishnugarh PS were also with the team. The team had surrounded the house of Bhuneshwar Mahto and on search a person with a rifle was apprehended. He had disclosed his name as Bhuneshwar Mahto and on search conducted in his house one .303 bore rifle, six bags of ammonium nitrate, a Nokia mobile, naxal literature and cartridge were recovered and these articles were seized and a seizure list was prepared.
In cross-examination he has deposed that except the accused no other person was present in the house.
10. PW-6 Anil Kumar Singh is the informant who was posted as officer- in-charge of Bishnugarh PS and on 11.03.2010 the Superintendent of Police, Hazaribag had received a secret information that hardcore extremist Bhuneshwar Mahto has come to his house at Sapmarwa with arms, ammunitions and explosives. The village Sapmarwa is covered with dense forest on all sides. A joint search team was constituted on the orders of Superintendent of Police, Hazaribag and Superintendent of Police, Bokaro and at 5:45 a.m. in order to verify the information he, ASI Rameshwar Das, Rakesh Sharma, Inspector of CRPF 22 F Battalion with two platoons left the police station. At 7:00 a.m. when they reached Budgadda More they were met by the search party of Bokaro district and both the teams reached village Sapmarwa and surrounded the entire village. He along with other police personnel and CRPF personnel entered into the room of Bhuneshwar Mahto where they found a person sitting in the courtyard with a rifle in his thighs eating something. Before the said person could escape he was nabbed and he had disclosed his name as Bhuneshwar Mahto. On search two rifles, 50 live cartridges, a mobile, some naxal literature and 250 kg of ammonium nitrate were recovered. Bhuneshwar Mahto had admitted that he is the Secretary of a CPI Moist Organization South Dumri Committee. The confessional statement of Bhuneshwar Mahto was recorded at the place of occurrence.
In cross-examination he has deposed that at the time of the search no 4 Criminal Appeal (DB) No. 1343 of 2018 other person was present in the house of the accused. The number in the rifle indicated that it was looted from Giridih Home Guard on 11.11.2005.
11. PW-7 Ramesh Kumar Singh was posted as a Sub Inspector of Police at Bishnugarh PS and on the orders of the Court he had produced the seized material exhibits to the Court. Both the .303 bore rifles were marked as material Ext. (i) and (ii). The four empty cartridges and 46 live cartridges have been mentioned as material Ext. No. (iii)/ 49. The four naxal literature have been marked as material Ext. No. (iv)/3. The seized Nokia mobile phone has been marked as material Ext. No. (v). He has proved the application for production of the material exhibits to Court which has been marked as Ext.6.
12. The statement of the accused was recorded under section 313 Cr.P.C. in which he has denied his complicity in the offence.
13. It has been submitted by Mr. Jyoti Prasad Sinha, the learned counsel for the appellant that no offence is made out under section 26 of the Arms Act as the appellant was not trying to conceal the arms as no such allegation exists. The sanction order has been exhibited after recording the statement of the appellant under section 313 Cr.P.C. It has been submitted that the sanction order is a public document which has to be proved by the competent witness and it cannot come within the provision of section 294 Cr.P.C. Mr. Sinha has submitted that the appellant was in custody during trial from 12.03.2010 to 20.06.2013 and from 23.03.2007 till date and though the appellant has completed more than 10 years in custody he has not been released as the learned trial Court has not mentioned that the sentences are to run concurrently. It has been submitted that though ammonium nitrate was notified as a Special Category Explosive Substance on 10.12.2008 vide Gazette Notification No. SO2899 (E) but a further clarification was issued that no licence was necessary for manufacturing, storage, possession and sale of ammonium nitrate. The Ammonium Nitrate Rules, 2012 came into existence on 11.07.2012 and prior to the same ammonium nitrate was not an explosive substance and therefore, the learned trial Court committed an error of law in convicting the appellant for the offences under sections 3/ 4 of the Explosive Substances Act.
14. Mrs. Priya Shrestha, the learned Spl.P.P. has submitted that the appellant who was a hardcore naxalite was apprehended from his house with arms, ammunitions and explosive substances and thus has rightly been convicted by the learned trial Court especially in view of the fact that the 5 Criminal Appeal (DB) No. 1343 of 2018 prosecution witnesses who are the members of the raiding party have supported such recovery.
15. We have heard the learned counsel for the respective sides and have also perused the trial Court record.
16. On a raid conducted in the house of the appellant, an extremist, on an information received that the appellant has come to his house to execute some devious plan the appellant was apprehended and two rifles, cartridges and six bags of ammonium nitrate were seized. The test report of the Sergent Major reveals that both the rifles were in working condition and were dangerous to human life. The evidence of the witnesses proved beyond doubt about the recovery of arms and ammunition from the possession as well as from the house of the appellant. The contention of the learned counsel for the appellant that no offence is made out under the Arms Act is negated as all the necessary ingredients are present in the same and therefore the conviction under sections 25(1-B)a/ 26 of the Arms Act is affirmed.
17. So far as the conviction under sections 3/4 of the Explosive Substances Act are concerned, the basis for such conviction is of possession of six bags of ammonium nitrate. The incident had occurred on 11.03.2010 and ammonium nitrate was notified as a 'Special Category Explosive Substance' on 10.12.2008 vide Gazette Notification No. SO2899 (E). Ammonium nitrate was declared an explosive under section 17 of the Explosives Act, 1884 on 21.09.2011 and the Ammonium Nitrate Rules were framed in the year 2012. Equipped with the above it has been submitted by the learned counsel for the appellant that mere possession of ammonium nitrate prior to the notified date would not attract conviction under sections 3/4 of the Explosive Substances Act.
18. Section 2(b) of the Explosive Substances Act,1908 defines "a special category explosive substance" and the same reads as under:
"2. Definitions.--In this Act,--
(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 com-
pounds and other similar type of explosives and a combination thereof and remote control devices causing explosion and any oth- er substance and a combination thereof which the Central Gov- ernment may, by notification in the Official Gazette, specify for the purpose of this Act.]"
6 Criminal Appeal (DB) No. 1343 of 2018
19. As per the learned counsel for the appellant, ammonium nitrate was notified to be a 'special category explosive substance' vide Gazette Notification dated 10.12.2008 which would mean that ammonium nitrate had come under the purview of a 'special category explosive substance' much prior to the date of occurrence.
20. Declaring ammonium nitrate as an explosive under the Explosive Act, 1884 would gather an altogether different connotation as Explosive Act, 1884 is primarily focused on safety regulation, licenses for handling, storage and preventing accidents and misuse while Explosive Substances Act provides for punishment for manufacturing and possessing explosive substances which are dangerous to life.
21. Since ammonium nitrate was already declared as a 'special category explosive substance' within the meaning of section 2(b) of the Explosive Substances Act, 1908 prior to the recovery of ammonium nitrate from the house of the appellant the subsequent notification and enactment of the Rules of 2012 would not have any bearing with the recovery of ammonium nitrate and therefore the learned trial Court was correct in convicting the appellant under sections 3/4 of the Explosive Substances Act,1908.
22. On consideration of the aforesaid facts, we do not find any reason to interfere in the impugned judgment of conviction and order of sentence dated 15.09.2018 passed by Shri Sanjay Kumar Singh No.1, the learned Additional Sessions Judge-XII, Hazaribag in S.T. No. 291 of 2012 and consequently, we dismiss this appeal.
23. However, what can be discerned from the sentence imposed upon the appellant is that it has not been mentioned that all the sentences are to run concurrently. Even though the appellant has completed more than 10 years in custody which is the maximum punishment imposed if we consider the sentence to run concurrently but absence of the same has made the sentence to run consecutively and the appellant on the basis of the same is still in custody.
24. In the case of "O.M. Cherian versus State of Kerala & others"
reported in (2015) 2 SCC 501 it has been held as follows:
"20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a 7 Criminal Appeal (DB) No. 1343 of 2018 direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] and Section 31 CrPC."
25. As would be apparent in the present case the various offences which had been attracted was out of a single transaction and the learned trial Court should have indicated that all the sentences were to run concurrently. We have further taken note of the fact that the appellant has completed more than 10 years in custody and having regard to the nature of offence and the period of incarceration undergone by the appellant apart from the fact that the separate offences arise out of a same transaction we modify the sentence imposed upon the appellant without interfering with the period of sentence by directing that all the sentences imposed upon the appellant shall run concurrently.
26. In view of the modification as indicated above and considering the fact that the appellant has completed more than 10 years in custody he is directed to be released immediately and forthwith if not wanted in any other case.
27. Pending IA, if any, stands closed.
(RONGON MUKHOPADHYAY, J.) (RAJESH KUMAR, J.) Jharkhand High Court, Ranchi, Dated:18 /08 /2025 S.B. 8 Criminal Appeal (DB) No. 1343 of 2018