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PETITIONER: BHALCHANDRA alias BAPU & ANR.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 11/04/1968

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR 1319            1968 SCR  (3) 766  CITATOR INFO :  R          1972 SC1150  (8)  D          1972 SC1485  (5)

ACT: Indian Penal Code (45 of 1860) ss. 304A and 337--Storage  of explosives  of higher  degree--Explosion--Whether  licensees liable criminally.

HEADNOTE: In  an  explosion  which took place, the  persons  who  were working in the factory of the appellants where crackers were being  manufactured  died or were injured.   The  appellants were  convicted under ss. 304A and 337 I.P.C. In  appeal  to this Court, the appellants contended that criminal liability could not be imposed upon them under ss. 304A and 337 as  it had not been established that the deaths or injuries  caused were  the direct result of any rash or negligent act on  the part of the appellants or that any such act had been  proved which was the proximate and efficient cause of the explosion without the intervention of another’s negligence. HELD: The appellants were rightly convicted. [773 C] Although there was no direct evidence of the immediate cause of the explosion but the explosives the possession of  which was  prohibited  under the notifications  issued  under  the Indian  Explosives  Act  were  found in  the  shops  or  the premises where the appellants carried on their business  and the substances which were of highly hazardous and  dangerous nature were apparently being used in the manufacture of  the fire  works.  since  they were found at  the  scene  of  the explosion.   These explosives had sensitive composition  and even  friction or percussion could cause explosion.  In  the factory  itself where the explosion took place  the  persons who were employed were mostly women who brought their  small children  with them and young children below the age  of  18 had  been  employed in the manufacture of  fire  works.   It became  therefore, all the more incumbent on all  appellants to  have  completely  avoided the use  of  highly  sensitive compositions.   The appellants had, undoubtedly displayed  a high degree of negligence by allowing or causing to be  used dangerous  and prohibited compositions and substances  which must  be  held  to  have been the  efficient  cause  of  the

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explosion. [771 A-C; 773 C] Rustom  Sharior Irani v. State of Maharashtra.  Cr.  A.  No. 72/65; Balachandra Waman Pathe v. The State of  Maharashtra, Cr.  A. 62 of 1965 decided on 20-11-1967. followed. Regina v. David Dant., 169 English Reports (C.C.) 1517;  Rex v. Pittwood. (1902) 19 T.L.R. 37, applied. Kurban   Hussein   Mohammedali   Rangwalla   v.   State   of Maharashtra,  [1965] 2 S.C.R. 622; Suleman Rahiman Mulani  & Another  v.  The  State of Maharashtra Cr.  A.  50  of  1965 decided on 1-12-1967, distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193  of 1965. Appeal  by special leave from the  judgment and order  dated October 19, 1965 of the Bombay High Court in Criminal  Revi- sion Applications Nos. 193 and 194 of 1965. 767 K.   Hingorani and N. H. Hingorani, for the appellants. P.   K. Chatterjee and S. P. Nayyar, for the respondent. The Judgment of the Court was delivered by Grover,  J. This is an appeal by special leave in which  the main  question for decision is whether the  appellants  were rightly convicted for offences under ss. 304A and 337 of the Indian Penal Code. The facts lie within a narrow compass.  The appellants  held licences  under the Indian Explosives Act 1884,  hereinafter called   the  Act,  and  the  Rules  framed  thereunder   to manufacture, possess and sell fire works and gun-powder  not exceeding  200 pounds and to possess and sell safety  fuses. It   appears   that  the  appellants  had  a   factory   for manufacturing  explosives in a house on Shad Road  in  Latur town.   It is said that an explosion occurred in that  place on  May 5, 1962 at about 12 O’clock as a result of which  11 persons  died  and 7 persons were injured.   The  appellants along  with one B. G. Kamble were tried for  offences  under the various provisions of the Act and the Rules as also  for offences  under  ss. 304A and 337 of the  Code.   The  trial judge acquitted B. G. Kamble but convicted the appellants of the various charges framed against them and imposed fine for offences  under  the  provisions of the Act  and  awarded  a sentence of one year under S. 304A and three months under S. 337 of the Indian Penal Code with a direction that they were to run concurrently.  The learned Additional Sessions  Judge dismissed  the  appeal preferred by the  appellants  against their  conviction and sentence.  The appellants  then  moved the  High  Court  on  the revisional  side.   The  order  of conviction  was  confirmed  by the High Court  as  also  the sentence  on  all the counts except that under s.  304A  the substantive   sentence  was  reduced  to  one  of   rigorous imprisonment for six months but for the reasons mentioned in the judgment of the High Court the appellants were directed, in addition, to pay a line of Rs. 1,500 each. Now there can be no manner of doubt and it has been so found that in the explosion which took place the persons who  were working  in  the so called factory of the  appellants  where crackers etc. were being manufactured died or were  injured. According  to the courts below the appellants had, in  their possession, unauthorised explosives in contravention of  the Act and the rules and had committed a number of breaches  of those  rules  and the conditions of the licences  issued  to them.  The principal contention on behalf of the  appellants is  that even on the facts found it is not possible to  hold

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that  they  were responsible for the explosion or  had  done anything  which could be regarded as a direct and  immediate cause of the explosion.  Thus criminal 768 liability  could not be imposed on them under ss.  304A  and 337  of  the Code as it has not been  established  that  the deaths or injuries caused were the direct result of any rash or  negligent act on the part of the appellants or that  any such  act  had  been  proved which  was  the  proximate  and efficient cause of the explosion without the intervention of another’s  negligence.  In the High Court emphasis was  laid on  the  absence of any positive evidence  pointing  to  the presence  of the appellants at the material time.  The  High Court  while  holding that there was no direct  evidence  in respect of the immediate cause of the explosion referred  to the  conclusion of the courts below that the appellants  had committed a number of hazardous breaches of the rules framed under  the Act and the conditions of the licences issued  to them, particularly the storage of prohibited explosives  and employment  of children below the, age of 18.  This, it  was pointed  out, showed a callous disregard for the  safety  of the employees.  It was noticed that the Assistant  Inspector of.   Explosives  had also attributed the explosion  to  the storage   of  prohibited  explosives  of  a   high   degree. Therefore  the  appellants were found to have  been  rightly convicted under ss. 304A and 337 of the Indian Penal Code. Our  attention has been invited by the learned  Counsel  for the  appellants  to  certain decisions of  this  Court.   In Kurban   Hussein   Mohammedali   Rangwalla   v.   State   of Maharashtra(1) a factory was licensed on certain  conditions to manufacture paints.  The manager and the working  partner did  not  have a license for manufacturing  wet  paints  but nevertheless the factory manufactured them.  Certain burners were  used  for the purpose of melting rosin or  bitumen  by heating them in barrels and adding turpentine thereto  after the temperature cooled down to a certain degree.  While this process was going on froth overflowed out of the barrel  and because of heat, varnish and turpentine which were stored at a  short distance caught fire and resulted in the  death  of seven  persons  working in the factory.   The  question  was whether  the  manager and the working partner  of  the  firm which ran the factory was guilty under ss. 304-A and 285  of the Indian Penal Code.  It was held that the mere fact  that the  burners  were allowed to be used in the  same  room  in which  varnish  and turpentine were stored  even  though  it might  be  a negligent act would not be enough to  make  the appellant  before this Court responsible for the fire  which broke out.  The cause of the fire, it was observed, was  not merely  the  presence of burners in the room  in  which  the varnish and turpentine were stored though this  circumstance was  indirectly  responsible for the fire which  broke  out. The requirement of s. 304A was the causing of death by doing any rash or negligent act and this meant that the death must be the direct or proximate result of the rash or negligent (1)  [1965] 2 S. C. R. 622.                             769 act.  It was found that the direct or proximate cause of the fire  which  resulted  in  seven deaths was  the  act  of  a labourer who acted in a hurry and who did not wait until the bitumen or rosin cooled down and thus it was his  negligence which  was  the  direct  and proximate  cause  of  the  fire breaking  out.  The appellant, namely, the manager  and  the working  partner  of  the firm could not  be  held  to  have committed the offence under S. 304A of the’ Code. The  ratio  of  the above decision was  applied  in  Suleman

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Rahiman Mulani & Another V. The State of Maharashtra(1).  In that  case the question was whether the first appellant  who had  only a learner’s licence and was driving a  jeep  which knocked  down the deceased had been rightly convicted of  an offence  under  S.  304A  of  the  Code  read  with  certain provisions  of the Motor Vehicles Act.  On the  material  on the  record the court found it impossible to discover  under what circumstances the accident had taken place.  This Court held  that it was not known what was the proximate cause  of the accident and the possibility that it had been caused due to  the fault of the deceased could not be ruled  out.   The mere  fact that the appellant in question held  a  learner’s licence did not establish that he did not know driving.  His proficiency might furnish a defence which the learner  could not  have  but the absence of proficiency did not  make  him guilty.   His  conviction under s. 304A  was  therefore  set aside. The  facts  of the present case are somewhat  different  and distinguishable from those of the above two cases as will be clear  from  a close examination of  the  material  evidence relating  to  the substances which were being  used  in  the manufacture  of  the fire works etc. in the factory  of  the appellants. It  appears that soon after the explosion the  Inspector  of Explosives,  West  Circle, Bombay, proceeded  to  Latur  for investigation.   He took into possession certain  substances from the scene of the accident.  By means of a letter, dated May  11,  1962  sent from the office  of  the  Inspector  of Explosives  these substances were forwarded to the  Chemical Examiner,  Government  of Maharashtra for  examination,  the samples were as follows:-               1.    A white substance in a packet  suspected               to be potassium chlorate.                2.   An orange yellow substance suspected  to               be arsenic sulphide.               3.    A  round stone piece  containing  smears               with  orange yellow chemical adhering  to  it.               (This was to               (1)   Cr. A. 50 of 1965, decided on 1-12-67.               770               be  examined  for  the  presence  of   arsenic               sulphide and potassium chlorate).               4.    A contraption to test the  explosibility               of   a  mixture  of  potassium  chlorate   and               sulphur.               Dindeshchandra P. W. 10 Assistant Inspector of               Explosives  also  went  to the  scene  of  the               explosion  along with the Inspector on May  9,               1962  and various samples were collected  from               the  shops  of the appellants  as  well.   All               these were forwarded to the Chemical  Examiner               for  examination.  The report of the  Chemical               Examiner (Ex. 87) which is to be found on  the               original  record gives the following  analysis               in  respect of the above  substances  "Exhibit               (1) is potassium chlorate.               Exhibit (2) is arsenic sulphide.               Exhibit  (3) has sediment  containing  arsenic               sulphide and sulphur adhering to it.               Exhibit (4) has Potassium Chlorate and Sulphur               in its cavity."               "Apart  from the original record  these  facts               stand   established  from  the   evidence   of               Dindeshchandra  P. W. 10 and the  report  (Ex.               38)  --which he had submitted on  November  2,

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             1962  which  was duly proved by  him  when  he               appeared as a witness.  He has further  stated               that  when  he inspected the premises  of  the               factory  on May 9, 1962 he noticed half  burnt               raw  material  like sulphur white  powder  the               ingredients  of which he could not  ascertain.               There were grinding stones as also empty tubes               for  manufacturing exhibition fire works.   As               regards the cause of the explosion his opinion               may be given in his own words --               "Probable  cause  of the explosion  must  have               been the large quantities of the raw materials               gun powder and finished fireworks and the  raw               materials  for  the same were  stored  in  the               premises.  At the time of the explosion  there               were   large  quantities  of  the   fireworks,               finished   as  well  as  in  the  process   of               preparation,  loose compositions and the  gun-               powder.   There were being dried in  the  open               court yard of the premises.  Some of the items               contained     very     sensitive     explosive               compositions which might have exploded due  to               the spark, percussion or friction or fire." Although there was no direct evidence of the immediate cause of  the  explosion  but  indisputably  the  explosives   the possession  of which was prohibited under the  notifications issued  under  the  Act  -were found in  the  shops  or  the premises where the appellants carried on their business  and on the substances that have been :,mentioned which were of a highly hazardous and dangerous 771, nature were apparently being used in the manufacture of  the fire  works  since  they  were found at  the  scene  of  the explosion,  (vide  the  evidence mentioned  before  and  the finding  of  the  trial court and  the  Additional  Sessions Judge).   As  stated  by  Dindeshchandra  P.  W.  10   these explosives  had sensitive compositions and even friction  or percussion could cause explosion.  It is further proved that in  the  factory itself where the explosion took  place  the persons  who  were employed were mostly  women  who  brought their  small children with _them and young __children  below the  age of 18 had been employed in the manufacture  of  the fire works etc.  The factory was situate in close  proximity to  residential quarters.  It became therefore all the  more incumbent on the appellants to,, have completely avoided the use of highly sensitive compositions of the nature mentioned above. The  decision which is apposite to the present case  is  the one  recently  delivered by this Court on April 3,  1968  in Rustom Sherior Irani v. State of Maharashtra(1).  There  the chimney of a bakery had collapsed and 11 persons were killed and  certain  persons  were  injured.   The  appellant   had submitted no plan for the alteration of the chimney for  the third  time  and had asked just a mason to remove  the  iron pipe  which  had  corroded and to bring the  height  of  the chimney  to 65 feet.  The mason had told Mm that  while  the work  was  being executed it was unnecessary  to  completely keep  the bakery closed except during the period the  repair work  was being done.  After the chimney fell down a  number of officers visited the spot and inspected the bakery.   The Chief Inspector of Boilers was of the opinion that the cause of  the  collapse  of the chimney was  the  explosion  which occurred  in  it because of the products of  combustion  and gases  not being permitted to escape freely as a pipe  of  6 inches diameter had been put instead of 12 inches  diameter.

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It  is unnecessary to refer to, the detailed  discussion  of the  evidence.  It was established that the construction  of the  new  chimney  had been done without ther  advice  of  a properly  qualified person.  The argument raised was on  the lines  similar to the one which had been advanced in  Kurban Hussein  Mohammedall Rangwalla v. State  of  Maharashtra(2). It  was  maintained that no negligence on the  part  of  the appellant had been established and it was on account of the, negligence  of the mason that the chimney had  fallen  down. This Court was of the view that the proximate and  efficient cause  of the deaths was the negligence of the appellant  in choosing a pipe of 6 inches diameter and asking a mason (who was  apparently  not a qualified person) to  carry  out  the alterations  and also continuing working at least  one  oven there during the period while the alterations to the chimney were being made. (1) Cr.  A. No. 72/65.       (2) [1965] 2 S. C. R. 622. 772 In  another recent decision, Balachandra Waman Pathe v.  The State  of Maharashtra,(1) this Court referred with  approval to what was said by Straight, J. in Empress of India v. Indu Beg(2)  that criminal negligence is the gross  and  culpable neglect  or failure to exercise that reasonable  and  proper care  and precaution to guard against injury either  to  the public  generally or to an individual in  particular,  which having  regard  to all the circumstances out  of  which  the charge has arisen, it was the imperative duty of the accused person  to have adopted.  In Queen Empress v. Bhutan(1)  the lessee  of a government ferry having the exclusive right  of conveying  passengers across a certain river was held to  be guilty under s. 304A when he had committed the negligent act of putting a boat in the ferry which was in an unsafe condi- tion  and  which sunk resulting in some of  persons  getting drowned.  The Punjab Chief Court found a person guilty under ss.  304A and 338 in Kamr-ud-din v. King Emperor(4) when  he had consigned two boxes containing fire works to the Railway falsely declaring them to contain iron locks with the result that in loading one of the boxes exploded killing one coolie and  injuring another.  The inadvertence to the  results  of concealing  the  true character of the contents of  the  box which was the failure of duty to the public at large and the knowledge of the dangerous nature of the contents which must be  inevitably presumed coupled with the  consequences  were regarded  as  constituting  a  complete  offence  under  the sections. Adverting  to  English  law, the case  of  Regina  v.  David Dant(5)  is  highly instructive.  This is  what  Erle,  C.J. observed               "The defendant turned a dangerous animal on to               a  common where there was a  public  footpath.               This has been found by the jury to be culpable               negligence,  and the child’s death was  caused               by it.  Ordinarily speaking these are all’ the               requisites of manslaughter.  It is. contended,               however,  that no offence was  committed,  be-               cause as we must take it, the child was not on               the  path. the jury having found that  it  was               very near, but that they could not say whether               it was on or off.  In my opinion the defendant               is  responsible for having brought so great  a               danger  on persons exercising their  right  to               cross  the common; and it is not a  ground  of               acquittal that the child had strayed from  the               path." In another case, Rex v. Pittwood(6) the prisoner was charged

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with  manslaughter on the ground that he had been  negligent in not (1)  Cr.  A. 62 of 1965 decided on 20-11-67. (2)  1. L. R. III All. 776. (3)  1. L. R. XVI All. 472. (4)  1905 P. R. 22. (Cr.) (5)  169 English Reports (C.  C. ) 1517. (6)  (1902) 19 T. L. R. 37. 773 closing a gate when a train passed which it was his duty  to do  with  the result that White who was in a  hay  cart  was killed  while  the cart was struck by the train  which  came when  it  was  crossing the line.  Wright,  J.  was  of  the opinion  that  the  prisoner had been guilty  of  gross  and criminal  negligence  as he was paid to keep the  gate  shut when the train came and protect the public.  It was a  clear case of misfeasance as the prisoner directly contributed  to the accident and he was guilty of manslaughter. All  the  above cases show that criminal negligence  can  be found  on  varying sets of circumstances.  The  tests  which have been applied appear to be fully applicable to the facts of  the  present  case  including  the  one  of  direct  and efficient cause.  The appellants had, undoubtedly  displayed a  high  degree of negligence by allowing or causing  to  be used  dangerous and prohibited compositions  and  substances which  must be held to have been the efficient cause of  the explosion. The   appellants  were  therefore  rightly   convicted   and sentenced under ss. 304A and 337 of the Indian’ Penal  Code. As   no  other  point  has  been  pressed  or   arises   for consideration,  the  appeal is  dismissed.   The  appellants shall forthwith surrender to their bail bonds. Y.P.               Appeal dismissed. 774