S. M. Mazhar v. State Of Bihar — 1995 DIGILAW 266 (PAT)

Judgment S.K.Chattopadhyaya, J. 1. In the instant application a prayer has been made for quashing of the First Information Report lodged under Sec. 9(B) of the Explosives Act, 1884 (hereinafter referred to as the Act) read with Rule 5 of the Explosives Rules (shortly the Rules) as well as the order taking cognizance dated 7.9.1994 for an offence under Sec. 5 of the Explosive Substances Act (hereinafter to be referred to as the Substance Act). 2. Before dealing with the points raised on behalf of the parties, the facts, in brief, are necessary to be stated: The Sub Inspector of Police, Daltonganj Police Station on getting secret information that a jeep bearing registration No. BHH 5610 was carrying 10 KGs. of explosive articles with detonators and fues from M/s Paramount Explosive Magazine to the office of the Bihar State Mineral Development Corporation (hereinafter referred to as Corporation) whereas, under law, they were entitled to carry only 5 KGs. of explosives at a time, and that the excess quantity of explosive was being supplied to the terrorists, in connivance with the staff of the said Corporation as well as the owner and Manager of the said Corporation. After making Sanha Entry No. 184 and on the direction of the Officer-in-charge, the informant alongwith the Police Party checked the said jeep on the bridge of river, Koel. During checking 10 KGs. Jilletin, 25 fues and 100 detonators were found. On inquiry from the jeep driver, Guput Singh and the clerk, Nabin Kumar Srivastava, who were the occupants of the Jeep, the informant came to know that they were the staffs of the Corporation and were carrying the explosives from M/s. Paramount Explosive Magazine situated at Chianki. They also produced two challans which were in the name of Mines Manager, Semra Mines of the Corporation. The informant was further informed by the driver and the clerk that after issuance of indent from the Mines, the aforesaid explosives were being supplied by M/s. Paramount Explosive. The First Information Report further discloses that according to the terms of the license, the owner and Manager of the Magazine could have supplied only 5 KGs. Of explosive at a time but as because more than 5 KGs. The First Information Report further discloses that according to the terms of the license, the owner and Manager of the Magazine could have supplied only 5 KGs. Of explosive at a time but as because more than 5 KGs. of explosive were supplied, the owner, Manager of the said Magazine alongwith the driver and the clerk have violated the terms and conditions of the license which is a cognizable offence under the Explosive Act and the Rules. On the basis of said allegation the articles were seized in presence of the independent witnesses. It appears that Sadar P.S. Case No. 67/ 91, Daltonganj, dated 10.12.1991 was registered under Sec. 9(B) of the Act read with Rule 5 of the Rules. Charge sheet, after completion of investigation was also submitted under the said section and rule of the Act and Rules, respectively. 3. By order dated 7.9.1994 learned Chief Judicial Magistrate took cognizance of the offence under Sec. 5 of the Substance Act observing that "the Investigating Officer has committed mistake in the charge-sheet by not mentioning the section or sections under which the charge-sheet is submitted". 4. Mr. H.K Mehta, learned counsel for the petitioners, has challenged the said order taking cognizance on the ground that in view of Sec. 7 of the Substance Act cognizance of the offence could not have been taken without the consent of the Central Government. He submits that, as admittedly, no consent was obtained, the order taking cognizance is vitiated in law and has to be set aside. It is further contended that petitioner No.1 being the proprietor of M/s Paramount Explosive, has a valid licence since 8.10.1971 and there is no bar that it cannot sell explosives more than 5 K. Gs. at a time to the purchaser who are having their valid licences duly granted by the Competent Authority. According to the learned counsel, the said Corporation was also having licence on the date of occurrence i.e. on 10.2.1991 and, as such, neither the petitioners nor the employees of the Corporation have committed any offence under the Substance Act and the Rules. 5. In support of his first contention that cognizance could not have been taken without the consent of the Central Government, Mr. 5. In support of his first contention that cognizance could not have been taken without the consent of the Central Government, Mr. Mehta has relied on a decision in the case of Dhrub Kumar V/s. State of Bihar, and in the case of Latif Sah and another V/s. State of Bihar. 6. Mr. Eqbal, learned Government Advocate, on the other hand, refuting the submissions of Mr. Mehta, has contended that the order taking cognizance under Sec. 5 of the Substance Act is wholly uncalled for inasmuch as the learned Chief Judicial Magistrate committed an error of record by observing that the section under which the charge-sheet was submitted, was not mentioned by the I.O. in the charge-sheet. Advancing arguments it is contended that the F.I.R. was filed under Sec. 9(B) of the Act read with Rule 5 of the Rules, 1883 and charge-sheet also disclosed the said section and the rule and, in such view of the matter, on perusal of the F.I.R. as well as the case diary, the learned Court below could not have taken cognizance under Sec. 5 of the Substance Act, rather, he should have taken cognizance under Sec. 9(8) of the Act read with Rule 5 of the Rules. 7. Relying on the decisions reported in the case of Emperor V/s. Kallappa Dunduppa Rudrannvars and another, case of Nathu Ram V/s. Emperor, and the case of Gopal Krishna Pal V/s. The State of Bihar, Mr. Eqbal contends that the decisions cited by Mr. Mehta are distinguishable inasmuch as those two cases are in relation to cognizance taken under the Substance Act and not under the Act. On the aforesaid premises he contends that the order taking cognizance can be set aside and the matter may be remitted back to the learned Chief Judicial Magistrate for taking cognizance in accordance with law on the basis of the allegation made in the F.I. R. as well as the charge-sheet filed thereto. 8. The Act was enacted with the object to provide a comprehensive law regulating the manufacture, keeping, sale, conveyance and importation of explosives throughout British India. It has since been partly amended by the Indian Explosives (Amendment) Act 10 of 1027, the Part-B States (Laws) Act 3 of 1951 and the Indian Explosives (Amendment) Act 3 of the Substance Act and not under the Act. On the aforesaid 1952. It has since been partly amended by the Indian Explosives (Amendment) Act 10 of 1027, the Part-B States (Laws) Act 3 of 1951 and the Indian Explosives (Amendment) Act 3 of the Substance Act and not under the Act. On the aforesaid 1952. it has also been partly amended by Ordinance 18 of 1945. This Act has been adopted by the Adaptation of Laws Orders, 1937, 1948 and 1950. It has been partly repealed by Act 10 of 1889, 12 of 1891 and 10 of 1914. This Act was extended to the merged States by the Merged States (Laws) Act 59 of 1949 and to the States of Manipur, Tripura and Vindhya Pradesh by the Union Territories Act 30 of 1950. 9. Sec. 4(d) of the Act defines explosive which is as follows: (d) "Explosive" means gunpowder, nitroglycerine, nitroglycol, gun-cotton, di-nitro toluene, trinitrotoluene, picric acid, di-nitro-phenol, tri-nitro-resocrinol (Styphinc acid), cyclo-trimethylenetrinitramine penta azide, lead styphynate, fulminate of mercury or any other metal, diazo-di-nitrophenol, 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 pyrofues, rockets, percussion caps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosive as defined in this clause." Sec. 4 (h) of the Act defines manufacture in relation to an explosive which includes process of (1) dividing the explosive into its component parts or otherwise breaking up or unmaking the explosive or making fit for use any damaged explosive and (2) to re-making altering or repairing the explosive. Sec. 4(i) defines prescribed which means prescribed by rules made under this Act. Similarly Section 4(j) defines vessel which includes any ship, boat, sailing vessel, or other description of vessel used in navigation whether pro pulled by oars or otherwise and anything made for the conveyance, mainly by water, of human being or of goods and a caisson. Sec. 5 of the Act empowers the Central Government to make rules as to licensing of the manufacture, possession, use, sale, transport and importation of explosives. Rule 10 of the Rules, 1983 was made by the Central Government in exercise of powers conferred on it by Secs. 5 and 7 of the Act, 1884. Sec. 5 of the Act empowers the Central Government to make rules as to licensing of the manufacture, possession, use, sale, transport and importation of explosives. Rule 10 of the Rules, 1983 was made by the Central Government in exercise of powers conferred on it by Secs. 5 and 7 of the Act, 1884. Rule 2(ii) defines licensed magazine which means a magazine in respect of which a licence issued under these rules is in force. Rule 5 reads as follows: "Prohibition of unauthorised explosives" - No person shall import, export transport, manufacture, possess, use or sell any explosive which is not an authorised explosive. Provided that nothing in this rule shall apply to the manufacture and possession for test and trial purposes and not for sale of a new explosive composition under development at a place specially approved for the purpose by the Chief Controller in a licensed factory." Rule 32 prohibits a person from transporting explosives except under and in accordance with the conditions of a licence granted under these rules. Rule 75 contemplates provisions for transportation by road. 10. The Substance Act 1980 was enacted to further amend the law relating to explosive substances. This Act is an independent Act by itself and is not an amending Act. I may note that before coming into force of the Substance Act, 1908 the law relating to explosive substance was contained in the following Acts, viz. The Arms Act 54 of 1959. The Indian Explosives Act IV of 1894. The Indian Penal Code (Act XLV of 1860). However, when it was felt that certain aspects of the situation could not be conveniently and adequately dealt with under the provisions of the above mentioned Acts, it was thought necessary to supplement the then existing Acts by an Act on the lines of the English Explosive Substance Act, 1883 which was enacted for the purpose of dealing with anarchist crimes. In view of Sub-sec. (2) of Sec. 1, the provisions of this Act are extended to the whole of India and applies also to the citizens outside India. 11. In view of Sub-sec. (2) of Sec. 1, the provisions of this Act are extended to the whole of India and applies also to the citizens outside India. 11. From a perusal of different provisions of this Act it is clear that the punishments have been provided not only for causing explosion likely to endanger life or property, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property and for making or possession explosives under suspicious circumstance but also for the abettors. All the aforesaid provisions, if read together, will amply clarify that in order to deal with the crimes committed by means of explosive substance, the Parliament thought it proper to enact this Act particularly realising the fact that the provisions of the Explosive Substances Act, 1908 and of the Indian Penal Code were not sufficient to deal with such types of crimes. 12. Sec. 7 of the Explosive Substances Act, 1980 restricts on the trial of offences committed under this Act. The section reads as follows: "7. Restriction on trial of offence: No Court shall proceed to the trial of any person for an offence against this "Act except with the consent of the Central Government." 13. On close scrutiny or the relevant provisions of the aforesaid two Acts, namely, the Explosives Act, 1984 as well as the Explosive Substances Act, 1908 , it is apparent that the object and reason for enacting those two Acts are quite different. 14. On this premises on perusal of the allegations made in the F.I.R. against the petitioners, I find that the petitioners were proceeded against for violation of the provisions of the Act and the rules framed thereunder. The charge sheet also indicates that after investigation, the Investigating Agency found that the petitioners committed offence under Sec. 9(B) of the Act read with Rule 5 of the Rules. 15. Under these circumstances, in my opinion, the learned Chief Judicial Magistrate has committed an illegality by taking cognizance for offences under Sec. 5 of the Substance Act. The learned Court below also committed apparent error of record by observing that in the charge-sheet no section was mentioned by the I.O. 16. 15. Under these circumstances, in my opinion, the learned Chief Judicial Magistrate has committed an illegality by taking cognizance for offences under Sec. 5 of the Substance Act. The learned Court below also committed apparent error of record by observing that in the charge-sheet no section was mentioned by the I.O. 16. Sec. 5 of the Act reads as follows: "Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstance 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 punishable with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a term which may extend to five years to which fine may be added". In my view the allegation made in the F.I.R. against the petitioners are mainly for violation of the conditions of the licence issued under the Rules. According to the petitioners, they are licensees under the Act and the Rules. Though a photo copy of the licence has been annexed as Annexure 3 to this petition but the same is incomplete inasmuch as the petitioners have not annexed the whole of it. After page, 2 page No.7 has been annexed which begins with condition No. 21. Page No.7 also has been scored through by pen. 1 fail to appreciate the reason behind it. I have already indicated above that the learned Chief Judicial Magistrate while taking cognizance of the offence, has committed an error of record by not going through the charge-sheet in which offence under Sec. 9(B) of the Act as well as Rule 5 of the Rules have been mentioned. A photo copy of the charge-sheet has been annexed as Annexure 2 to this petition. 17 In the backdrops of the aforesaid discussions in my considered opinion, neither the decisions in the case of Dhrub Kumar (supra) nor the case of Latif Sah and others (supra) are relevant for deciding the issues in the instant case. Those decisions are on the authorities under the Explosive Substances Act, 1908 . 17 In the backdrops of the aforesaid discussions in my considered opinion, neither the decisions in the case of Dhrub Kumar (supra) nor the case of Latif Sah and others (supra) are relevant for deciding the issues in the instant case. Those decisions are on the authorities under the Explosive Substances Act, 1908 . On the other hand, the Division Bench decision of this Court in the case of Gopal Krishna Pal (supra) is a direct answer to the point raised in this case. In the said case the Court relying on several decisions have held that during committal proceeding no consent under Sec. 7 is required and lack of such sanction does not invalidate the committal proceedings. On this score also the argument of Mr. Mehta is not sustainable. 18. The prayer for quashing of the F.I.R. in my view, cannot be allowed because it is now well settled that this Court cannot scrutinise the evidence or other documents while exercising its jurisdiction under Sec. 482 of the Code of Criminal Procedure. The F.I.R. prima facie, constitutes an offence and the truthfulness or otherwise of the allegations will be decided by the Court below in appropriate stage. 19. In the result, this application is allowed in part. The order taking cognizance dated 7.9.1994 under Sec. 5 of the Explosive Substances Act, is hereby quashed. The case is remitted back to the learned Chief Judicial Magistrate for taking cognizance in accordance with law. Let a copy of this order be sent down immediately.