S.K. Chattopadhyaya, J.
1. In the instant application a prayer has been made for quashing of the first information report lodged under Section 9(B) of the Explosives Act, 1884 (hereinafter referred to as the Act) read with Rule 5 of the Explosives Rules (shortly the rules) as well as the order taking cognizance dated 7.9.1994 for an offence under Section 5 of the Explosive Substance Act (hereinafter to be referred to as 'the Substance Act).
2. Before dealing with the points raised on behalf of the parties, the facts, in brief, are necessary to be stated; The Sub-Inspector of Police, Daltonganj police station on getting secret information that a jeep bearing registration No. BHH 5610 was carrying 10 K. Gs. of explosive articles with detonators and fues from M/s Paramount Explosive Magazine to the offence of the Bihar State Mineral Development Corporation (hereinater referred to as ('Corporation') whereas, under law, they were entitled to carry only 5 K.Gs. of explosives at a time, and that the excess quantity of explosive was being supplied to the terrorists in connivance with the staff of the said Corporation as well as the owner and Manager of the said Corporation. After making Sanha entry No. 184 and on the direction of the Officer incharge, the informant along with the Police party checked the said jeep on the bridge of river, Koel. During checking 10 K.Gs. jilletin, 25 fues and 100 detenators were found. On inquiry from the jeep driver, Guput Singh and the clerk, Naibn Kumar Srivastava, who were the occupants of the jeep, the informant came to know that they were the staffs of the Corporation and were carrying the explosives from M/s Paramount Explosive Magazine situated at Chianki. They also produced two chalans which were in the name of Mines Manager, Semra Mines of the Corporation. The informant was further informed by the driver and the clerk that after issuance of indent from the Mines, the aforesaid explosives were being supplied by M/s Paramount Explosive.
The first information report further discloses that according to the terms of the licence the onwer and Manager of the Magazine could have supplied only 5 K.Gs. of explosive at a time but as because more than 5 K.Gs. of explosive were supplied, the onwer, Manager of the said Magazine along with the driver and the clerk have violated the terms and conditions of the licence which is a cognizable offence under the Explsoive Act and the Rules. On the basis of said allegation the articles were seized in presence of the independent witnesses.
It appears that Sadar P.S. Case No. 67/91, Daltonganj, dated 10.12.1991 was registered under Section 9B of the Act read with Rule 5 of the Rules, Chargesheet, after completion of investigation, was also submitted under the said section and rule of the Act and Rules, respectively.
3. By order dated 7.9.1994 learned Chief Judicial Magistrate took cognizance
of the offence under Section 5 of the Substance Act observing that "the
Investigating Officer has committed mistake in the charge sheet by non
mentioning the section or sections under which the chargesheet is submitted.
4. Mr. H.K. Mehta, learned Counsel for the petitioners, has challenged the said order taking cognizance on the ground that in view of Section 7 of the Substance Act cognizance of the offence could not have been taken without the consent of the Central Government. He submits that as admittedly, no consent was obtained, the order taking cognizance is vitiated in law and has to be set aside. It is further contended that petitioner No. 1 being the properietor of M/s Paramount Explosive, has a valid licence. Since. 8.10.71 and there is no bar that it cannot sell explosives more than 5 K. Gs. at a time to the purchaser who are having their valid licences duly granted by the competent authority. According to the learned Counsel, the said Corporation was also having a licence on the date of occurrence i.e. on 10.2.1991 and, as such, neither the petitioners nor the employees of the Corporation have committed any offence under the Substance Act and the Rules.
5 In support of his first contention that cognizance could not have been taken without the consent of the Central Government, Mr. Mehta has relied on a decision in the case of Dhrub Kumar v. State of Bihar reported in 1988 BBCJ, 622 and in the case of Latif Sah and
Anr. v. State of Bihar reported in 1990 PLJR, 547.
6. Mr. Eqbal, leanred Government Advocate, on the other hand, refuting the submissions of Mr. Mehta, has contended that the order taking cognizance under Section 5 of the Substance Act is wholly uncalled for inasmuch as the learned Chief Judicial Magistrate committed an error of record by observing that the section under which the chargesheet was submitted, was not mentioned by the I.O. in the chargesheet. Advancing arguments it is contended that the FIR was filed under Section 9B of the Act read with Rule 5 of the Rules, 1883 and charge sheet also disclosed the said section and the rule and in such view of the matter, on perusal of the FIR as well as the case diary, the learned Court below could not have taken cognizance under Section 5 of the Substance Act, rather, he should have taken cognizance under Section 9B of the Act read with Rule 5 of the Rules.
7. Relying on the decisions reported in the case of Emperor v. Kallappa Dunduppa Redrannvars and
Anr. reported in AIR 1927 Bombay, 21 case of Nathu Ram v. Emperor reported in AIR 1934 Allahabad, 982 and the case of Copal Krishna Pal v. The State of Bihar reported in : AIR1951Pat185 , Mr. Eqbal contends that the decisions cited by Mr. Mehta are distinguishable inasmuch as those two cases are in relation to cognizance taken under the Substance Act and not under the Act. On the aforesaid premises he contends that the order taking cognizance can be set aside and the matter may be remitted back to the learned Chief Judicial Magistrate for taking cognizance in accordance with law on the basis of the allegation made in the FIR as well as the charge sheet filed thereto.
8. The Act was enacted with the object to provide a comprehensive law regulating the manufacture, keeping, sale, conveyance and importation of explosives throughout British India. It has since been partly amended by the Indian Explosives (Amendment) Act 10 of 1927 the part B States (laws) Act 3 of 1951 and the Indian Explosives (Amendment) Act, 3 of 1952. It has also been partly amended by Ordinance 18 of 1945. This Act has been adapted by the Adaptation of Laws Orders 1937, 1948 and 1950. It has been partly repealed by Act, 10 of 1889, 12 of 1891 and 10 of 1914. This Act was extended to the merged States the Merged States (Laws) Act, 59 of 1949 and to the States of Manipur, Tripura and Vindhya Pradesh by the Union Territories Act, 30 of 1950.
9. Section 4(d) of the Act defines 'explosive' which is as follows:
(d) 'Explosive' means gunpowder, nitroglycerine, nitroglycol, gum -cotton, di ni-ro toluene, tir-nitro-toluene, picric acid, di-nitro-phenol, tri-nitro-resocrinol (Styphine acid), cyclotrimethylene-trinitramine penta-azide, lead styphynate, fulminante of mercury or any other metal, diazo-di-nitro phenol, coloured fires or. any other substance whether a single chemical compound or a mixture of substances, whether solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrofues, rockets, percussioncaps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosive as defined in this clause.
Section 4(h) of the Act defines 'Manufacture in relation to an explosive which includes process of (1) dividing the explosive into its component parts or otherwise breaking up or unmaking the explosive, or making fit for use any damaged explosive;, and (2) to remaking, altering or
repairing the explosive. Section 4(i) defines 'prescibed' which means prescribed
by rules made under this Act. Similarly Section 4(j) defines 'vessel' which includes and ship, boat, sailing vessel, or other description of vessel used in navigation whether propelled by oars or otherwise and any thing made for the conveyance, mainly by water of human being or of goods and a cassion.
Section 5 of the Act empowers the Central Government to make rules as to licensing of the manufacture, possession, use, sale, transport and importation of explosives. Rule 10 of the Rules, 1983 was made by the Central Govt. in exercise of
powers confered on it by Sections 5 and 7 of the Act, 1884. Rule 2(ii) defines 'licensed magazine', which means a magazine in respect of which a licence issued under these rules is in force. Rule 5 reads as follows:
Pohibition of unauthorised explosives :- No person shall import, export, transport, manufacture, possess, use or sell any explosive which is not an authorised explosive.
Provided that nothing in this rule shall apply to the manufacture and possession for test and trial purposes and not for sale of a new explosive composition under development at a place specially approved for the purpose by the Chief Controller in a licensed factory.
Rule 32 of the rules prohibits a person from transporting explosives except under and in accordance with the conditions of a licence granted under these rules. Rule 75 contemplates provisions for transportation by road.
10. The Substance Act, 1908 was enacted to further amend the law relating to explosive substances. This Act is an independent Act by itself and is not an Amending Act. I may note that before coming into force of the Substance Act, 1908 the law relating to explosive substance was contained in the following Acts, viz:
1. The Arms Act 54 of 1959. (Sic)
2. The Indian Explosives Act IV of 1884.
3. The Indian Penal Code (Act XLV of 1860).
However, when it was felt that certain aspects of the situation could not be conveniently and adequately dealt with unde the provisions of the above mentioned Acts, it was thought necessary to supplement the then existing Acts by an Act on the lines of the English Explosive Substance Act, 1883 which was, enacted for the purpose of dealing with anarchist crimes. In view of Sub-section (2) of Section 1, the provisions of this Act are extended to the whole of India and applies also to the citizens outside India.
11. From a perusal of different provisions of this Act it is clear that the punishments have been provided not only for causing explosion likely to endanger life or property, attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property and for making or possession explosives under, suspicious circumstance but also for the abettors. All the aforesaid provisions, if read together, will amply clarify that in order to deal with the crimes committed by means of explosive substance, the Parliament thought it proper to enact this Act particularly, realising the fact that the provisions of the Explosive Substance Act, 1908 and of the Indian Penal Code were not sufficient to deal with such type of crimes.
12. Section 7 of the Explosive Substance Act, 1908 restricts on the trial of offences] committed under this Act. The section reads as follows:
7. Restriction on trial of offence: No Court shall proceed to the trial of any person for an offence against the Act except with the consent of the Central Government.
13. On close scrutiny of the relevant provisions of the aforesaid two Acts, namely, the Explosive Act, 1884 as well as the Explosive Substance Act, 1908, it is apparent that the object and reasons for enacting those two Act are quite different.
14. On this premises on perusal of the allegatiosn made in the FIR, against the petitioners, I find that the petitioners were proceeded against for violation of the provisions of the Act and the rules framed there under. The charge sheet also indicates that after investigation, the investigating-agency found that the petitioners committed offence under Section 9B of the Act read with Rule 5 of the Rules.
15. Under these circumstances, in my opinion, the learned Chief Judicial Magistrate has committed an illegality by taking cognizance for offences under Section 5 of the Substance Act. The learned Court below also committed apparent error of record by observing that in the charge-sheet no Section was mentioed by the I.O.
16. Section 5 of the Act reads as follows:
Any person who makes or knowingly has in his possession or under his contort and explosive substance, under such circumstance 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 punishable with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a term which may extend to five years to which fine may be added.
In my view the allegation made in the FIR against the petitioners are mainly for violation of the conditions of the licence issued under the Rules. According to the petitioners, they are licensees under the Act and the Rules. Though a photo copy of the licence has been annexed as Annexure-3 to this petition but the same is incomplete inasmuch as the petitioners have not annexed the whole of it. After page 2, page No. 7 has been annexed which begins with condition No. 21. Page No. 7 also has been scored through by pen. I fail to appreciate the reason behind it. I have already indicated above that the learned Chief Judicial Magistrate while taking cognizance of the offence, has committed an error of record by not going through the charge sheet in which offence under Section 9B of the Act as well as Rule 5 of the Rules have been mentioned. A photo copy of the charge sheet has been annexed as Annexue-2 to this petition.
17. In the backdrops of the aforesaid discussions in my considered opinion, neither the decisions in the case of Dhurb Kumar (supra) nor the case of Latif Sah and Ors. (supra) are relevant for deciding the issues in the instant case. Those decisions are on the authorities under the Explosive Substance Act, 1908. On the other hand, the Division Bench decision of this Court in the case of Gopul Krishna Pal (supra) is a direct answer to the point raised in this case. In the said case the Court relying on several decisions have held that during committed proceeding no consent under Section 7 is required and lack of such sanction does not invalidate the committal proceedings. On this score also the argument of Mr. Mehta is not sustainable.
18. The prayer for quashing of the FIR in my view, cannot be allowed because it is now well settled that this Court cannot scrutinise the evidence or other documents while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure. The FIR prima facie, constitutes, an offence and the truthfulness or otherwise of the allegations will be decided by the Court below in appropriate stage.
19. In the result, this application is allowed in part. The order taking cognizance dated 7.9.1994 under Section 5 of the Explosive Substance Act, is hereby quashed. The case is remitted back to the learned Chief Judicial Magistrate for taking cognizance in accordance with law. Let a copy of this order be sent down immediately.