10 September 2004
Supreme Court
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LOPCHAND NARUJI JAT Vs STATE OF GUJARAT

Bench: ARIJIT PASAYAT,PRAKASH PRABHAKAR NAOLEKAR
Case number: Crl.A. No.-000580-000580 / 1999
Diary number: 474 / 1999
Advocates: Vs HEMANTIKA WAHI


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CASE NO.: Appeal (crl.)  580 of 1999

PETITIONER: Lopchand Naruji Jat and Anr.                             

RESPONDENT: State of Gujarat                                                 

DATE OF JUDGMENT: 10/09/2004

BENCH: ARIJIT PASAYAT & PRAKASH PRABHAKAR NAOLEKAR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

Appellants call in question legality of the judgment rendered by  a learned Single Judge of the Gujarat High Court upholding their  conviction for offence punishable under Section 9-B(i)(b) of the  Explosive Act 1884 (in short the ’Act’).  The Trial Court sentenced  each of the appellants to undergo imprisonment for one year and pay a  fine of Rs.1,000/- with default stipulation.

In a nutshell the background facts are as follows:

On 20.4.1988, the appellants came to Surat from Indore and were  intercepted by the police at the bus stand.  They were found to be in  possession of 180 detonators. A criminal case no.4 of 1990 was  registered against the appellants-accused. They were charge-sheeted for  the offence punishable under Sections 9-B(i)(b) of the Act and Section  5 of the Terrorists & Disruptive Activities (Prevention) Act, 1985 (in  short the ’TADA’). By judgment and order dated 12.10.1998 of the Trial  Court, the accused were acquitted of the offence punishable under  Section 5 of the TADA. However, they were convicted for the offence  punishable under Section 9-B(i)(b) of the Act and were sentenced as  aforesaid.   

In the appeal before the High Court stand of the appellants was  that without prior sanction of the Central Government for prosecution  the proceedings were illegal. It was also submitted that articles  recovered from the appellants cannot be said to be explosives and,  therefore, also the appellants could not have been convicted.  As there  was no independent evidence and only the evidence of the investigating  officer was relied upon, the conviction should not have been made.  Residually it was submitted that the appellants had faced trial for  about 10 years and should not have been convicted with punishment of  custodial sentence as Section 9-B(i)(b) itself provides that fine only  can be imposed.  Respondent-State’s stand was that no sanction was  necessary under the Act.  The report of the Controller of Explosive,  Baroda, clearly indicated that the substance recovered from the  appellants was explosive of Class 2 as prescribed in Schedule I to the  Explosives Rules 1983 (in short the ’Rules’) as well as Explosive of  Class 6 as defined in the said Schedule. A licence is obligatory for  possession, transportation and use of the explosive.  Since the

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substance recovered was an explosive as defined in Section 4(d) of the  Act and no licence was detained, the conviction was well-merited.  Learned Single Judge, held that no sanction was necessary under the Act  for prosecution.  The articles recovered were explosives and keeping in  view the factual background the sentence as imposed was in order.

In support of the appeal, learned counsel for the appellants  reiterated the points urged before the High Court.  Learned counsel for  the respondent-State in response supported the judgment of the courts  below.   

It is to be noted that the plea relating to sanction is based on  confusion between two statues i.e. The Act and the Explosive Substances  Act 1908 (in short the ’Explosive Substances Act’).  Prior sanction for  prosecuting any person is provided under the Explosive Substances Act  and there is no corresponding provision in the Act.  Therefore, the  Trial Court and the High Court were justified in rejecting the plea.   Coming to the question whether the seized articles were explosives,  report of the Controller of Explosive which was produced as Exhibit-73  clearly discloses that the substances recovered were explosives of  Class 2 and Class 6 of Schedule I. That being so, the plea that the  articles were not explosives cannot be sustained.

The two classes are as follows:

"Class 2- Nitrate Mixture Class:  "Nitrate-mixture" means any preparation, other than  gunpowder, which is formed by the mechanical mixture  of a nitrate with any form of carbon with any  carbonaceous substance not possessed of explosive  properties, whether sulphur be or be not added to  such preparation, and whether such preparation be  not mechanically mixed with any other non-explosive  substance, and includes any explosive containing a  perchlorate and not being a chlorate mixture,  fulminate or nitro-compound as defined in this  Schedule.

Class 6- Ammunition Class:  (1) "Ammunition" means an explosive of any of the  foregoing classes when the same is enclosed in any  case or contrivance, or is otherwise adapted or  prepared so as to form:

(a) a cartridge or charge for small arms, cannon or  any other weapon, or (b) a safety or other fuse for  blasting or for shells, or (c) a tube for firing  explosives, or (d) a percussion cap, detonator, fog  signal, shell, torpedo, war rocket or any other  contrivance other than a firework.

(2)     The ammunition class has three divisions,  namely Division 1, Division 2 and Division 3.

(3)     Division 1 comprises exclusively of (i) Safety  cartridges, (ii) Safety fuses for blasting, (iii)  Railway for signal, and (iv) Percussion caps.

(4) Division 2, comprises any ammunition which does  not contain its own means of ignition and is not  included in Division 1, such as cartridges for small  arms other than safety cartridges and charges for  common shells and torpedoes containing any  explosives, tubes for firing explosives, and war  rocket, which do not contain their own means of

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ignition.

(5)     Division 3, comprises any ammunition which  contains its own means of ignition and is not  included in Division 1, such as detonators, fuses  for blasting which are not safety fuses, tubes for  firing explosives, containing their own means of  ignition.

Note \026 The expression "ammunition containing its own  means of ignition" means ammunition having an  arrangement, whether attached to or forming part of  the ammunition which is adapted to explode or fire  the ammunition by friction or percussion.   "Percussion cap" does not include a detonator."

   As per established prosecution version 180 nos. of ammunition  dynamites were found in possession of the accused.  Courts below have  on evidence tendered found that Ammonium tubes with electrical red wire  were recovered.  These articles are undisputedly covered by class-6 as  quoted above.       The substances recovered from the appellants clearly come within  the definition of "explosive" as per Section 4(d) of the Act.  When the  investigating officer was found to be trustful and in spite of incisive  cross-examination, nothing material has been brought to discredit his  evidence, the Trial Court was justified in recording conviction on his  evidence alone.   

Coming to the plea about the sentence it would be relevant to  note that 180 detonators were seized. The value thereof has been fixed  by the prosecution as Rs.900/-. The quantity seized clearly disproves  the plea that the seized articles were intended to be used for digging  wells.  The detonators were found to be of a company at Rourkela in  Orissa, and were seized far away at Surat.  The fact that the accused  persons tried to run away when police wanted to apprehend them is a  significant factor.   

In the aforesaid background the custodial sentence and fine  imposed do not warrant any reduction.  

The appeal is accordingly dismissed.