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2015 DIGILAW 949 (JHR)

Dilip Patar v. State of Jharkhand

2015-08-11

RAVI NATH VERMA

body2015
Order : Heard learned counsel for the petitioner and learned counsel for the State. 2. Challenge in this revision application is to the order dated 18.12.2013 passed by Additional Sessions Judge-II, Dhanbad in S.T. No.249 of 1999 whereby and whereunder, the petition filed by the petitioner for his discharge has been rejected holding that there are prima facie evidence for framing charge against the petitioner under Sections 4 / 5 of the Explosive Substance Act and 9B of the Explosives Act, as also under Section 414 of the I.P.C. 3. Petitioner has been made accused in Chirkunda (Maithan) P.S. Case No.157 of 1998, corresponding to G.R. No.2015 of 1998, for the offences under Sections 414 of the I.P.C., 4/5 of the Explosive Substance Act and 9B of the Explosives Act. 4. The prosecution case as it reveals from the F.I.R. is that on 11.6.1998, the coaccused Md. Naushad Ali was apprehended on a motorcycle and from his motorcycle, explosive materials were recovered by the police and on interrogation he disclosed that he has obtained the explosives from Dilip Mandal the petitioner and he was going to handover the explosive materials to the coaccused Md. Abid Hussain Ansari and Md. Mujibur Rab @ Munna. On the basis of recovery made from Md. Naushad Ali and on his discloser petitioner was made accused in the said case. It appears that after investigation, the police submitted the chargesheet against the petitioner and sanction for prosecution was accorded as required and the case was committed to the Court of Sessions whereafter the petitioner filed application for discharge alongwith other accused persons which was rejected by the Court below by the impugned order dated 18.12.2013 though nothing was recovered. 5. Learned counsel for the petitioner has submitted that since no recovery was made from the possession of the petitioner, the offences as alleged, are not made out against this petitioner and it was a fit case for discharge and that admittedly even on the basis of disclosure statement of coaccused no recovery has been shown from the possession of this petitioner and as such, no offence under Section 4 or 5 of the Explosive Substance Act or under Section 9B of the Explosives Act are made out against this petitioner. Learned counsel, accordingly, submitted that in similarly situated case arising out of same First Information Report bearing Cr. Learned counsel, accordingly, submitted that in similarly situated case arising out of same First Information Report bearing Cr. Revision No.262 of 2002, the coaccused has been discharged from the alleged offence. 6. Learned counsel for the State on the other hand has opposed the prayer submitting that there is no illegality in the impugned order worth interference in the revisional jurisdiction. 7. For better appreciation of issue involved a reference of Sections 4 and 5 of the Explosive Substance Act, 1908 is necessary which reads as follows : “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. Punishment for making or possessing explosives under suspicious circumstances. 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, 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; 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.” 8. From plain reading of the above Sections, it is apparent that for making out the offence under Sections 4 and 5 of the Explosive Substance Act, it has to be shown that the accused was either: (a) doing any act with intent to cause an explosion with the explosive substance or special category explosive substance, or conspiring for the same, (b) making or having in his possession, or having under his control the explosive substance, The above ingredient are necessary to make out the offence under those sections. There is nothing in the F.I.R., or in the impugned order to show that the petitioner was either doing any act or had entered into any conspiracy with intent to cause an explosion, or making, or having in their possession, or having in their control, any explosive substance rather the name of the petitioner came in the confessional statement of the coaccused Naushad As such, in my considered view, no offence can be said to be made out against the petitioner for the offences under Sections 4 and 5 of the Explosive Substance Act. 9. Similarly, Section 9B of the Explosives Act, 1884 reads as follows : “9B. 9. Similarly, Section 9B of the Explosives Act, 1884 reads as follows : “9B. Punishment for certain offences.(1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules - (a) manufactures, imports or exports any explosive shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both; (b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and (c) in any other case, with fine which may extend to one thousand rupees. (2) Whoever in contravention of a notification issued under section 6 manufactures, possesses or imports any explosive shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both; and in the case of importation by water, the owner and master of the vessel or in the case of importation by air, the owner and the master of the aircraft, in which the explosive is imported shall, in the absence of reasonable excuse, each be punishable with fine which may extend to five thousand rupees. (3) Whoever, (a) manufactures, sells, transports, imports, exports or possesses any explosive in contravention of the provisions of clause (a) of section 6A; or (b) sells, delivers or dispatches any explosive in contravention of the provisions of clause (b) of that section, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both; or (c) in contravention of the provisions of section 8 fails to give notice of any accident shall be punishable, (i) with fine which may extend to five hundred rupees, or (ii) if the accident is attended by loss of human life, with imprisonment for a term which may extend to three months or with fine or with both.” 10. The plain reading of this Section also shows that for making a person liable under Section 9B of the Explosive Act, there must be allegation that he manufactures, imports, exports, possesses, uses, sells, transports, delivers or dispatches any explosive, or fails to give notice of any accident. The plain reading of this Section also shows that for making a person liable under Section 9B of the Explosive Act, there must be allegation that he manufactures, imports, exports, possesses, uses, sells, transports, delivers or dispatches any explosive, or fails to give notice of any accident. The words ‘Export’ and ‘Import’ have been defined under Section 4 (e) and (f) of the Explosives Act, 1884, according to which the word ‘Export’ means taking out of India to a place outside India; and the word ‘Import’ means to bring into India from a place outside India; It is apparent from the record, that neither of these ingredients are satisfied as per the allegation against the petitioner. As such, I have no hesitation in holding that no offence can be said to be made out against the petitioner even under Section 9B of the Explosive Act, 1884. Even no offence can be said to be made out even under Section 414 of the I.P.C., against the petitioner, as there is no allegation against the petitioner of concealment of any stolen property. 11. In view of the above discussions, no offence is made out against the petitioner either under Sections 4 and 5 of the Explosive Substance Act,1908, or under Section 9B of the Explosives Act,1884, or even under Section 414 of the I.P.C. Hence, it is fit case in which the petitioner ought to have been discharged; otherwise it shall be sheer misuse of the process of the Court. As such, the impugned order cannot be sustained in the eyes of law. 12. Accordingly, the impugned order dated 18.12.2013, passed by the learned Additional Sessions JudgeII, Dhanbad, in S.T. No.249 of 1999, is hereby, setaside. Consequently, the petitioner stands discharged. This revision application is allowed. Let the case diary be sent back forthwith.