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PETITIONER: MOHD.  USMAN

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 12/03/1968

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHELAT, J.M. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR 1273            1968 SCR  (3) 428

ACT: Indian  Explosives  Act, 1884 (4 of 1884),  s.  5(3)--Minors permitted to enter licensed premises--Punishment under which cl. of s. 5(3). Explosive  Rules,  1940, r. 16--Minors  permitted  to  enter licensed premise--Punishment under which cl. of s. 5(3).

HEADNOTE: The  appellant,  a manufacturer of fireworks  was  convicted under  S.  5  (3) of the Indian Explosives  Act  as  he  had allowed minors to work in the manufacture of fireworks  thus contravening r. 16 of the Explosives Rules. HELD: Clause (a) of s. 5(3) deals with a person who  imports or manufactures in contravention of the Rules; el. (b) deals with  a person who possesses, uses, sells or transports  any explosive  in contravention of the Rules; and el. (c)  deals with  the  contravention of the Rules in  other  cases.   If there  is  a breach of a rule, it has to be  ascertained  in each  case  whether  the  rule or  part  of  it  relates  to activities mentioned in el. (a) of s. 5(3) or el. (b) of  s. 5(3).   If  it  does not relate to  any  of  the  activities mentioned  in el. (a) or cl(3)(b) of s. 5(3) the  breach  of the rule would fall under cl. (c) of s. 5(3) . [430 A-B; 431 H] In this case, though it was established that the minors were employed  in  or allowed to enter the premises, it  was  not proved  that  the  minors  were  employed  in  any  of   the activities mentioned in el. (a) or el. (b) of s. 5(3).   Nor it  has  been proved that any manufacture of  fireworks  was done  on  that day.  So the contravention of r.  16  on  the facts  found, could only be punishable under el. (e)  of  s. 5(3). [432 B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 134  of 1965. Appeal  by special leave from the judgment and  order  dated May  14, 1965 of the Patna High Court in  Government  Appeal No. 25 of 1962.

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Nur-ud-din Ahmed and A. K. Nag, for the appellant. D.  P.  Singh,  Anil  Kumar and  Shivpujan  Singh,  for  the respondent. The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave is directed  against the  judgment  of the Patna High Court allowing  the  appeal filed by the State Government, and convicting the appellant, Mohd.   Usman, under s. 5 (3) (a) of the  Indian  Explosives Act,  1884 (IV of 1884)-hereinafter referred to as the  Act- and sentencing him to undergo rigorous imprisonment for  two years  and  also to pay a fine of Rs. 2,000, in  default  to undergo rigorous 429 imprisonment for a further period, of six months.  The  High Court,   however,  agreed  with  the  Magistrate  that   the appellant could not be held guilty under s. 304A, IPC.   The High  Court  did  not find the two  other  accused  persons, Abdul.   Rahinan and Abdul Aziz, guilty, and  State  appeals against them were dismissed. The  prosecution  case,  in  brief,  is  that  an  explosion occurred in appellant’s factory at Matkuria, PS Dhanbad,  on April 28, 1960.  As a result of the explosion Kashi  Bhokta, Gobardhan  Bhokta  and Mohan Bour died.  On  that  day,  the appellant,  who manufactures fireworks, had  allowed  minors (under  16  years of age), viz., Kashi Bhokta,  Guhi  Bhokta Gobardhan  and Subhas Chamar to work in the  manufacture  of fireworks, thus contravening r. 16 of the Explosives  Rules, 1940  hereinafter  referred to as the Rules-made  under  the Act,  and had thereby committed an offence punishable  under s.  5 (3) (a) of the Act.  The High Court, disagreeing  with the  Magistrate  who tried the case, held  that  "the  three minor  boys,  Kashi,  Guhi and  Subhas,  were  employed  and Gobardhan,  in any event, was allowed to enter the  premises licensed  under the Rules for manufacture of explosives"  in contravention  of  r.  16, and convicted  the  appellant  as already stated.               Section 5(3) of the Act reads thus:               "Any person contravening the rules made  under               this section shall be punishable               (a)   if   he  imports  or  manufactures   any               explosive   in   such   contravention,    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) if he possesses, uses, sells or transports               any  explosive  in  such  contravention   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."               Rule 16 of the Explosives Rules provides:               "16.   Children and  intoxicated  persons,--No               child under 16 years of age and no Person  who               is  in  a  state  of  intoxication  shall   be               employed   on   the  loading,   unloading   or               transport of explosives, or be employed in  or               allowed  to enter any premises licensed  under               these rules." 430 The  first question which arises is whether every breach  of r.   I6  falls  under  S. 5 (3) (a), of  the  Act.   In  our opinion, the answer is in the negative.  It will be- noticed that cl. (a) of S. 5 (3) deals with a person who imports  or manufactures  in contravention of the; Rule, cl.  (b)  deals

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with  a  person  who posses uses, sells  or  transports  any explosive  in contravention of the Rules and cl.  (c)  deals with  contraventions of the Rules in other. It seems  to  us that  the  scheme  of  this sub-section  is  to  divide  the contravention  of the Rules into three categories.   In  the first     category  fall  rules which  person  must  observe while  he  imports or manufactures.  In other  words,  rules relatable to the import or manufacture. of explosives  would fall in the first category.  For example, clause 11’ of  the licence issued to the               "Not  more than four persons shall be  allowed               at any one time in any one building or tent in               which the explosive is being manufactured  and               only    persons    actually    employed     in               manufacturing  or  superintending  manufacture               shall   be   allowed  inside  the   place   of               manufacture." Clause 12 of the Licence  provides:               "No iron or steel implements shall be used  in               the  manufacture.  only  copper  gun-metal  or               wooden tools are permissible." Now,  if  the  appellant had  infringed  the  provisions  of the  clauses it could be said that the  contravention  would fall  under cl. (a) of s. 5(3).  We may mention that  r.  81 provides that "no explosive shall be manufactured, possessed used  or  sold  except  under and  in  accordance  with  the conditions  of a licence granted under these rules",  and  a breach  of the, conditions would be contravention of r.  81. But  suppose the appellant had contravened clause 2  of  the licence-his- licence is for the manufacture, possession  and sale of 25 pounds of fireworks-which prescribes the modes in which  the  explosives shall be kept in the  premises,  i.e. "(a) in a building, substantially constructed of brick-stone or concrete or in a securely I constructed fire-proof  safe; or (b) in an excavation formed in solid rock or  earth...... he would be guilty under cl. (b) ’of s. 5(3) and not cl. (a) of s. 5(3).  Similarly, a contravention of clause 18,  which provides  that "all sales of explosives under  this  licence must  be effected on the premises described on the  face  of the  licence,  and an explosive shall not be  sold  to  ’any person  under the age of 16 years" would fall under cl.  (b) of s. 5 (3). The  learned counsel for the appellant contends that on  the facts  found  by  the  High Court  the  conviction  of  the- appellant 431 under cl. (a) of s. 5(3) cannot be sustained.  He says  that there  is no finding or evidence that the four  minors  were engaged   to  manufacture  or  were  taking  part   in   the manufacture of fireworks.  We have gone through the evidence and  we  find that no witness states that these  minor  boys were  employed  by the appellant to  manufacture  fireworks. Subhas  Chamar,  P.W. 1, says that he "was  working  in  the workshop  of explosives at Matkuria owned by Usman  ....  We were  working in the normal manner and in the same place  at the  time  of occurrence." Puran Bhokta, P.W. 2,  father  of Kashi  and Gobardhan, says that all his sons "worked in  the explosive workshop of Matkuria owned by Usman." He does  not enlighten  us  about the nature of work done  by  his  sons. Guhi Bhokta, P.W. 8, only states that "about 18 months  ago, on  a  Thursday,  I was working in  the  explosive  shop  in village   Matkuria   under   the   supervision   of   Rahman accused......  There  is no other evidence bearing  on  this point.  From this evidence it cannot be definitely  inferred that   the  four  minors  were  actually  employed  in   the

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manufacture of explosives on April 28, 1960.  In fact, there is  no  evidence  at  all  that  any  fireworks  were  being manufactured that day.  It was for the prosecution to  prove all  the  ingredients  of the offence, and  s.  106  of  the Evidence  Act does not, as contended by the learned  counsel for  the  State, absolve the prosecution  from  proving  its case. There is no doubt -that there has been a contravention of r. 16, inasmuch as the four minors were employed in or  allowed to  enter the premises licensed under the Rules.  But r.  16 is, a comprehensive rule and applies to employment of minors in the premises for various purposes-manufacture and sale of explosives  it would also apply to employment of a minor  to sweep floors and keep the premises clean. If  a  minor is employed to keep clean the  premises,  would this contravention fall under cl. (a) cl. (b) or cl. (c)  of s.  5(3)?   It seems to us that if cl. (a) and cl.  (b)  are read  widely so as to cover every activity which might  take place  on the premise cl. (c) would be  rendered  redundant. This is not a permissible way of reading statutes.  If  will be noticed that the legislature regards an offence under cl. (a) of s. 5(3) to be more serious than one under cl. (b) and an  offence under cl. (b) to be more serious than one  under cl.  (c).  Further, the rules are many; some regulate  minor matters, and if would be absurd to treat the breach of every rule to be a breach of cl. (a) or cl. (b). In our opinion, if there is a breach of a rule, it has to be ascertained  in  each case whether the rule or  part  of  it relates to activities mentioned in cl. (a) of s. 5(3) or cl. (b)  of  s.  5(3).   If it does not relate  to  any  of  the activities mentioned in cl. (a) 432 or  cl. (b) of s. 5 (3), the breach of the rule  would  fall under cl. (c) of s. 5 (3). In  this case the prosecution has not proved that  the  four minors  were employed in any of the activities mentioned  in cl. (a) or cl. (b) of s. 5 (3).  Nor has it proved -that any manufacture  of  fireworks was done on April 28,  1960.   It follows that the contravention of r. 16, on the facts found, can only come under cl. (c) of s. 5 (3). We  may mention that the learned counsel for  the  appellant challenged the findings of fact made by the High Court, but, in our opinion, they are not vitiated in any manner. In   the  result,  the  appeal  is  partly  :allowed.    The conviction  is altered to one under cl. (c) of S. 5  (3)  of the  Act, and the. appellant is sentenced to pay a  fine  of Rs.  1,000 and in default to undergo  rigorous  imprisonment for  a  period of three months.  Fine, if  paid  in  excess, shall , be refunded. Y.P.           Appeal partly allowed. 433