Madhya Pradesh High Court
Manohar vs The State Of M.P. on 27 September, 2017
Bench: S.C. Sharma, Alok Verma
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IN THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE.
SINGLE BENCH : HON'BLE SHRI JUSTICE ALOK VERMA
Criminal Appeal No.1275/1998
Manohar and another . . . Appellants
Versus
State of Madhya Pradesh . . . Respondent
__________________________________________________________ CORAM Hon'ble Shri Justice S.C. Sharma Hon'ble Shri Justice Alok Verma Whether approved for reporting ?
Shri A.K. Saraswat, learned counsel for the appellants. Shri Pankaj Wadhwani, learned counsel for the respondent/State. ____________________________________________________________________ Judgment 27.09.2017 This criminal appeal is directed against the order passed by the learned Additional Sessions Judge, Shajapur in Sessions Trial No.95/1995 dated 09.10.1998 wherein the learned Sessions Judge held the present appellants guilty under Section 5 of Explosive Substance Act 1908 and sentenced them to 3 years rigorous imprisonment.
2. According to prosecution story, the incident took place on 30.12.1994. Bahadursinhg Bamne, the Station In-Charge of 2 Soyatkala Police Station, District Shajapur received a source information that appellants Manohar S/o Jagannath Dangi and Rajkumar @ Raju S/o Motilal were transporting explosive substance on their motorcycle bearing registration No.RN-O-2295. The motorcycle was intercepted near Susner Barrier and a search was conducted. Appellant- Rajkumar was sitting as a pillion rider. They were was having a bag in the dickey of the vehicle. There were detonators in the gunny bag. Total 200 detonators and 206 gelatin rods were recovered from their possession. They could not produce the license for transporting the explosive substance. The Investigating Officer prepared punchnama and seized the explosive substance. The explosives were sent for examination by Controller of Explosives to Bhopal. The report of the Controller is Exh.P-1.
3. The learned trial Court framed the charge under Section 5 of Explosive Substance Act, recorded evidence of prosecution and the defence and recorded statements of accused persons and after taking into consideration the material available on record, held the appellants guilty under Section 5 of Explosive Substance Act and sentenced them, as aforesaid.
4. Aggrieved by the judgment and conviction and sentence, this appeal is filed on the following grounds, inter-alia :- (i) that the appellants were doing the job of digging the well and for this purpose, they were taking gelatin rods and detonators. (ii) appellant 3 Manohar is the owner of the tractor on which a compressor was mounted and with the help of such machine, they were digging the wells. (iii) they were not carrying the explosive for any illegal purpose or for getting any harm to any human being.
5. During the arguments, learned counsel for the defence also raised the ground that the case falls under the provisions of Explosive Act and not under the provisions of Explosive Substance Act. He further submits that the gelatin rods and detonators were produced from a licensed dealer and the purpose of transporting them, was to dig a well and not to harm any member of public. The charge was framed under Section 5 of Explosive Substance Act, which was wrongly framed. On these grounds, learned counsel for the appellants submits that this appeal may be allowed. The appellants may be acquitted from charge under Section 5 of Explosive Substance Act.
6. Learned counsel for the respondent/State, however, supports the impugned judgment and prays that the same may be confirmed.
7. To begin with, it may be considered first whether the case falls under the provision of Explosives Act or under the provision of Explosive Substances Act. In this case, charge-sheet was filed under Section 5 of Explosive Substances Act and also a permission was granted by District Magistrate, Shajapur dated 08.02.1995 for prosecution of the present appellants under Section 5 of Explosive 4 Substances Act. The order granting permission is Exh.P-17. It is, however, surprising that the Controller of explosives submitted a report after examining the explosives seized in this matter. His report is Exh.P-1. Copy of which is Exh.P-1-C. In this report, 206 numbers of paper cartridges measuring 200 m.m. in length and 25 m.m. in diameter was sent for examination and also 200 numbers of aluminum capsules each measuring 37 m.m. in length and 7 m.m. in dia, closed at one end, were also sent and the Controller of explosives submitted following opinion in respect of cartridges and capsules sent to him for examination :-
(i) Each of the paper cartridges described in item No.1 was an explosive of class 3 Division 1 as defined in Schedule I of the Explosives Rules, 1983.
(ii) Each of aluminum capsules as described above was an electric detonator, an explosive of Class 6 Division 3 as defined in schedule I of Explosives Rules, 1983.
8. Schedule I of Explosives Rules, 1983 describes various Classes of Explosives. Class 3 explosives are described as "Nitro Compound" and Class 6 are ammunitions.
9. Explosives Rules, 1983 describe definition of detonators. Rule 2(7) and Rule 2(2) describe various explosives, as such, of explosives, which are included in the list of official gazette. Rules also provide definition of compressor mounted on truck and tractor 5 in Rule 2 (4-A).
10. In this situation, it is apparent that the explosives, which are sent for examination by Controller of explosives were covered by provision of Explosives Act and were not such explosives, which were covered by the definition of explosives under Explosive Substances Act.
11. The Explosive Substances Act defines explosives substance. Section 2 defines explosives substance as under :-
"2. Definitions.--In this Act,
(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 for the purposes of this Act".
12. In Section 5 of Explosive Substances Act, the essential ingredient is that the explosives should be in possession of the appellants for any unlawful purpose.
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13. It is apparent that the explosives seized in this case were of explosives, as defined in the schedule appended to Explosives Rules 1983. There were no cogent evidence to show that they were being transported by the appellants for any unlawful object. It is the defence of the appellants before the trial Court that the accused Manohar was the owner of a tractor which was mounted with a compressor machine which was used for digging of wells and for using the explosives for digging of wells. They were transporting it after purchasing it from a licensed dealer which was located at Modi.
14. Bahadursingh Bamne is the Investigating Officer. In his statement, he admitted that accused Manohar told him that the cartridges and capsules were for digging of wells and they were used for in a compressor machine mounted on a tractor belonging to him. He was also informed that he purchased the seized material from a licensed vendor at Modi and he also admits that he went to Modi with the accused persons, however, no evidence is proved to show that the person from whom they were alleging that they purchased the explosives, was not produced before the trial Court to show that the explosives were not purchased from his shop. No documents from possession of the licensed vendor were seized to show that at the time of purported purchase from him, no such sell was made by the dealer, and therefore, it cannot be taken as proof 7 that the explosives were not purchased from a licensed vendor and were taken for any unlawful object.
15. It is not the case of the the prosecution that the present appellants were not having any license for possessing the compressor machine mounted on a tractor. It is also not the case of the prosecution that they had no license to possess such explosives.
16. The charges were framed under Section 5 of Explosives Act, and therefore, the burden was on the prosecution to prove all the ingredients of Section 5 of Explosive Substances Act.
17. In opinion of this Court, the prosecution failed to prove that the explosives were being taken for any unlawful purpose, and therefore, no charge is proved under Section 5 of Explosives Act. Accordingly, this appeal deserves to be allowed and allowed accordingly. The conviction and sentence passed on the appellants is hereby set aside. The appellants are acquitted from charge under Section 5 of Explosives Substance Act.
18. The appellants have been on bail during pendency of this appeal. Their bail and bond are hereby discharged.
The directions issued by learned trial Court for disposal of seized material are affirmed.
(Alok Verma) Judge Kafeel