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Judgment
H.C. Mishra
Heard learned counsel for the petitioners and learned counsel for the State. The petitioners are aggrieved by order dated 16.5.2002, passed by the learned 5th Additional Sessions Judge, Dhanbad, in S.T. No. 249 of 1999, whereby the application filed by the petitioners for discharge was rejected by the learned Court below, finding that there are ample prima facie evidence for framing charge against the petitioners under sections 4 /5 of the. Explosive Substance Act and 9B of the Explosives Act, as also u/s 414 of the I.P.C.
Petitioners have 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.
According to the prosecution case, on 11.6.1998, the co-accused Md. Naushad Ali was apprehended on a motorcycle and from the motorcycle, explosive materials were recovered by the police. The apprehended accused disclosed that he was going to handover the explosive materials to these petitioners Md. Abid Hussain Ansari and Md. Mujibur Rab @ Munna On the basis of recovery made from Md. Naushad Ali and on the basis of discloser statement made by the said co-accused, petitioners were made accused in the said Chirkunda (Maithan) P.S. Case No. 157 of 1998. It appears that after investigation, the police submitted the charge-sheet against the petitioners and sanction for prosecution was accorded as required under the law and ultimately, the case was committed to the Court of Session. Petitioners filed application for discharge, which was rejected by the Court below by the impugned order dated 16.5.2002, from which, it is apparent that there was no recovery of any explosive material from the petitioners even after the disclosure statement made by Md. Naushad. The Court below however, rejected the application filed by the petitioners and fixed the case for framing the charge.
Learned counsel for the petitioners has submitted that since no recovery was made from the possession of these petitioners, the offences as alleged, are not made out against these petitioners and it was a fit case for discharge. Learned counsel has submitted that admittedly in this case no recovery is there from the possession of these petitioners and as such the offence is not made out either u/s 4 or 5 of the Explosive Substance Act or u/s 9B of the Explosives Act. Learned counsel accordingly, submitted that it is fit case for discharge.
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.
Sections 4 and 5 of the Explosive Substance Act. 1908 read as follows :-
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 lite, 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.- 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,--
(a) 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;
(b) 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.
From plain reading of these 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, having in his possession, or having under his control the explosive substance.
which are the necessary ingredients to make out the offence under these sections. There is nothing in the F.I.R., or in the impugned order to show that the petitioners were 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. As such, in my considered view, no offence can be said to be made out against the petitioners For the offences under Sections 4 and 5 of the Explosive Substance Act.
Similarly, Section 9-B of the Explosives Act. 1884 reads as follows :-
9-B. Punishment for certain offences (1) Whoever, in contravention of rules made u/s 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 u/s 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 despatches 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.
The plain reading of this Section also shows that for making a person liable u/s 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 u/s 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 petitioners. As such, in my considered view, no offence can be said to be made out against the petitioners even u/s 9B of the Explosive Act, 1884.
In the facts of this case, no offence can be said to be made cut even u/s 414 of the I.P.C., against the petitioners as there is no allegation against the petitioners of concealment of any stolen property
In view of the fact that even if the allegations against the petitioners are accepted in toto, no offence can be said to be made out against them either under Sections 4 and 5 of the Explosive Substance Act. 1903, of u/s 9B of the Explosives Act, 1884, or even u/s 414 of the I.P.C., it is fit case in which the petitioners aught to have been discharged, as the prosecution of the petitioners for the offences which are not made out against them, shall be sheer misuse of the process of the Court. As such the impugned order cannot he sustained in the eyes of law.
In view of the aforementioned discussions the impugned order dated 16.5.2002, passed by the learned 5th Additional Sessions Judge, Dhanbad, in S.T. No. 249 of 1999. is hereby, set-aside. Consequently, the petitioners stand discharged. This revision application is accordingly, allowed. Let the Lower Court Records be sent back forthwith.