Jharkhand High Court
Tarkeshwar Jaiswal vs The State Of Jharkhand on 19 May, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No.202 of 2023
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Tarkeshwar Jaiswal, Aged about 54 years, son of Late Shyamlal Jaiswal
.... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. Gautam Kumar, Advocate
For the State : Mr. Vineet Kr. Vaishistha, Spl. P.P.
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th
06/Dated:19 May,2023
Per Sujit Narayan Prasad, J.
The instant appeal filed under Section 21(4) of the National Investigation Agency Act, 2008, is directed against the order dated 27.01.2023 passed by the learned Addl. Sessions Judge-I, Sahibganj in A.B.P. No.607 of 2022 in connection with Mirzachowki P.S. Case No.29 of 2022 for the offence registered under Sections Section 3/4 of the Explosive Substance Act, whereby and whereunder, the prayer for anticipatory bail of the appellant, has been rejected.
2. Learned counsel appearing for the appellant has submitted that nothing incriminating has come against the appellant, since, his complicity has only been shown on the basis of confession made by one Dev Singh.
The submission has also been made that the material which was recovered said to have explosive substance, i.e., MEC Power-1 Class-2, explosive, 83mm 2 x 2.78 Kgs of 24 pieces and MEC Force (H), tied by aluminium wire contained in the brown colour plastic bag and 47 pieces of explosive; 83mm x 2.78 Kg, cannot be said to be explosive substance, rather, it can only be considered to be explosive and hence, there is no ingredients of Section 3/4 of the Explosive Substance Act, on the basis of which, FIR has been instituted.
Learned counsel appearing for the appellant has further submitted that merely because the explosive has been seized even accepting the allegation to be proved, then also, there is no applicability of ingredients of Section 3/4 of the Explosive Substance Act, reason being that, the explosive itself, cannot be said to be substance.
3. The coordinate Bench of this Court has heard this matter on 23.02.2023 and has called for the case diary.
4. Mr. Vineet Kumar Vashistha, Spl. P.P. appearing for the State of Jharkhand has submitted by referring to paragraph-10 of the case diary which contains confessional statement of Dev Singh, who happens to be the brother of one other co-accused person, namely, Raj Kumar Singh, has disclosed as under paragraph-10 thereof that the appellant of this case along with his elder brother, Raj Kumar Singh are involved in the business of stone. He has further disclosed the specific involvement of his brother in using explosive substance for the 3 purpose of making of stone.
5. Learned Spl. P.P., in view of the aforesaid, has submitted that since the investigation is still going on and the contention which has been raised that brother of Dev Singh along with the appellant of this case, namely, Tarkeshwar Jaiswal, were involved in illegal mining and for that purpose, the explosive substance is being procured for the purpose of making of stone and as such, it is not a fit case where the prayer for privilege of anticipatory bail, may be allowed.
In counter to the submission made on behalf of the appellant that the material which has been recovered as per the seizure memo cannot be construed to be explosive substance, in this regard, submission has been made by referring to the incriminating material not construed to be wholly explosive, rather, it is explosive substance and for the purpose of strengthening his argument, he has placed the judgment rendered by the Hon'ble Apex Court in the case of Mohammad Usman Mohammad Hussain Maniyar & Anr. Vrs. State of Maharashtra, reported in 1981 AIR 1062, wherein, the definition of 'explosive substance' has been dealt with, wherein, explosive itself cannot be construed to be substance unless, the said explosive itself can cause the explosion, then it will come under the fold of explosive substance, therefore, the ingredients of Section 3/4 of the 4 Explosive Substance Act, will be attracted.
6. Here, in the instant case, the recovery which has been shown of articles as per the seizure memo, is explosive substance, since, the same is Potassium Chloride and Ammonium Nitrate and both these substances are itself can cause explosion without any aid of detonator and hence, it is under explosive substance and as such, there is ingredient of Section 3/4 of the Explosive Substance Act.
7. Learned Spl. P.P., on the basis of the aforesaid fact also submits that it is not a fit case where the privilege of anticipatory bail may be granted.
8. We have heard the learned counsel for the parties and gone through the FIR as also the finding recorded by the learned trial Court while rejecting the anticipatory bail application as also the case diary.
9. As would appear from the FIR that the appellant is named therein and has been found to be involved in carrying of the illegal mining with the aid of the explosive substance.
It appears from the seizure memo that the following explosive substances have been recovered:-
"MEC Power-1 Class-2, explosive, 83mm x 2.78 Kgs of 24 pieces and MEC Force (H), tied by aluminium wire contained in the brown colour plastic bag and 47 pieces of 5 explosive; 83mm x 2.78 Kg".
It appears from paragraph-14 of the supplementary case diary, wherein, the recovery which has been shown, which is the report after having been obtained from the Forensic Science Laboratory, Ranchi, Jharkhand which was sent through letter no.3682/go. Dated 28.10.2022, wherefrom it is evident that after the chemical analysis of the material recovered, it has been found to be Ammonium nitrate, Aluminium and Sulphur along with Pottasium chlorate which has been detected from the "small plastic dibba marked A"
The expert opinion is that the contents of the "small plastic dibba marked A" are the remnants of explosive substance. It has further been opined that the ammonium nitrate is mostly used in high explosive mixture of ammonium nitrate fuel oil (ANFO), slurry explosive, emulsion explosive, etc., for ready reference, report of the Forensic Science Laboratory, Ranchi, Jharkhand as contained under paragraph-14 of the supplementary case diary, is being referred as under:-
"Result of Examination(s) On the basis of chemical analysis, Ammonium nitrate, Aluminium and Sulphur along with Potassium chlorate were detected in the extract of the content of the "small plastic dibba Marked A". 6
described above.
Therefore, it is concluded that the content of the "small plastic dibba Market A" are the remnants of explosive substance.
Ammonium nitrate is mostly used in high explosive mixture of Ammonium nitrate fuel oil (ANFO), slurry explosive, emulsion explosive etc."
This Court, thus, is of the view that material which has been recovered, is explosive substance as per the report of the expert opinion and there is no reason to take different view from the opinion of experts.
10. This Court has further found from paragraph-10 of the case diary which contains confessional statement of the co-accused, namely, Dev Singh, who has been apprehended from the place, wherefrom the material has been recovered. He has confessed that he along with his brother, namely, Raj Kumar Singh and the appellant- Tarkeshwar Jaiswal were involved in carrying illegal mining.
It has further been confessed that his elder brother Raj Kumar Singh and the appellant, namely, Tarkeshwar Jaiswal were actively involved in the illegal mining particularly for the purpose of breaking of stone, they used to procure the explosive substance and the seized 7 article is the same which was procured by the elder brother, Raj Kumar Singh and the appellant-Tarkeshwar Jaiswal.
11. Learned counsel for the appellant has mainly based his argument that the article which has been recovered cannot be construed to be explosive substance and hence, the ingredients of Section 3/4 of the Explosive Substance Act, are not applicable.
12. But we are not in agreement with the aforesaid submission at this stage, since, the specific opinion of experts is there that the seized articles are the High explosive substance as would appear from the opinion of the experts as quoted and referred hereinabove. Further, the co-accused, namely, Dev Singh who happens to be brother of one another co-accused persons, namely, Raj Kumar Singh has confessed in his confession about the involvement of the appellant along with his elder brother and the article which was seized wherefrom he was apprehended.
The said Dev Singh, co-accused person, who happens to be younger brother of Raj Kumar Singh, has given his disclosure by way of confession disclosing the name of this appellant also.
13. Thus, at this stage, we are of the view that it is not a fit case to extend the privilege of anticipatory bail to the appellant.
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14. Accordingly, we find no reason to interfere with the impugned order.
15. In view thereof, the instant appeal fails and is, dismissed.
(Sujit Narayan Prasad, J.)
Rohit/-A.F.R. (Subhash Chand, J.)