Vyas, J.
1. This is an appeal by the State of Bombay from a judgment of the learned Presidency Magistrate, 10th Court, Andheri, acquitting the respondent Ismail Shakur Morani who was charged with having committed an offence under Section 5(3) of the Indian Explosive Act read with Rule 81 of the Explosive Rules, 1940.
2. On the 24th August, 1954 an explosion occurred in the Morani Fire Works at Andheri. Nineteen lives were lost as a result of the explosion. Several workers received injuries. One Nam-deo Dharma was also injured and his right leg had to be amputed. The respondent is the owner of this factory. He possessed two licences under the Indian Explosives Act. In this case we are concerned only with one of those licences. It was a licence for manufacturing, possessing and selling 200 lbs. of fire works at a time. This licence was dated the 12th May, 1947. It was renewable annually and it was valid up to the 31st March, 1955. In this case we are concerned with condition No. 11 of the licence, as the case of the State is that it was this condition whose provisions were contravened by the respondent. Now, condition No. 11 lays down :
'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.'
It is the contention of the State that on the 24th August, 1954, upon which date the explosion took place, at least five persons were working in manufacturing shed No. 2 situated upon the licensed premises. It is upon this contention that the State alleges that the respondent was guilty of having contravened the provisions of condition No. 11 and thereby having committed an offence under Section 5(3) of the Indian Explosives Act read with Rule 81 of the Explosives Rules, 1940.
3. Before proceeding to deal with the facts of the case, I may conveniently set out at this stage the provisions of Section 5(3) of the Indian Explosive Act, 1884. Sub-section (3) is a penal section and it provides, so far as is material to the present case, that a person who manufactures an explosive in contravention of the rules made under Section 5 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 Rule 81 of the Explosives Rules, 1940 provides:
'(1) No explosive shall be manufactured, possessed, used or sold except under and in accordance with the conditions of a licence granted under these rules.
(2) The licensee shall be responsible for all operations in connection with the manufacture, possession or sale of explosives which may be conducted in the licensed premises.'
As I have stated above, the contention of the State is that the respondent, by violating the provisions of condition No. 11 of the licence, contravened the provisions of Rule 81 of the Explosives Rules, 1940, and thereby he committed an offence punishable under Section 5(3) of the Act.
4. Now, in this case the prosecution has relied upon the evidence of Digamber Vishram Dalvi and this witness has deposed that on the date of the explosion he had gone to the respondent's factory for work at 8 o'clock in the morning. He was working in the second manufacturing shed and his work was in relation to the chiddias. Chiddias are a kind of fire works which were being manufactured in the respondent's factory. According to the witness, about ten persons including himself were working in the second manufacturing shed in the morning of the date upon which the explosion occurred. After recess also the witness returned to the second manufacturing shed and resumed his work in connection with the chiddias. Even after the recess the same number of persons were working in the second manufacturing shed; in other words, the nun her of workers in the second manufacturing shed both before and after the recess on that day was ten. Then the witness has given the names of certain persons who were working in the second manufacturing shed on that day. These persons were Mahadeo, Shankar and Sukur. When the witness mentioned these names and was questioned as to whether he could give any more names, he said that he did not at the moment remember the names of other persons. According to this witness, the ten workers who were working in the second manufacturing shed on the date of the explosion included three girls also. He was unable to stats the names of these girls. At the time of the explosion, says the witness, he was sitting near the door of the second manufacturing shed find upon the explosion occurring he ran away. It may be noted at this stage that the explosion occurred in the first manufacturing shed i.e. the southern-most manufacturing shed which was shattered to smithereens by the violence of the explosion. Upon the evidence in the case it would appear that the second manufacturing shed had three doors, a door to the south, a door to the west, and a door to the east. According to this witness, he was sitting near the door which faced the first manufacturing shed. He does not say that he was sitting at the door which was opposite to the first manufacturing shed. Even if he were siting near the western door or the eastern door of the second manufacturing shed, he could still appropriately say that he was sitting near the door which faced the first manufacturing shed. According to this witness, he ran away as soon as the explosion occurred and while running away, he passed by the first manufacturing shed. The prosecution relies upon the evidence of this witness in order to contend that, so far as the second manufacturing shed at least was concerned, there were more than four persons working in it at the time of the explosion.
5. The next witness upon whose evidence the prosecution relies in Bhaskar Govind Sawant. He was a fire brigade officer and was on the material date in charge of the Andheri Fire Brigade. He has deposed that on the date of the explosion he received information about it at seven minutes past three in the afternoon. Immediately on receiving the information he went to the Morani Fire Works with six fire-men. They entered the factory through the west side. The fire brigade took about ten minutes to bring the fire under control. This witness has said that he 'saw some moving bodies inside the flames' and he recovered two dead bodies from the first manufacturing shed. The recovery of the dead bodies was made after the operations were complete, i.e., after the fire extinguishing operations were complete. According to this witness, in the second manufacturing shed chiddias were burning and live dead bodies were lying. In the third manufacturing shed two dead bodies were lying. Two more dead bodies were lying in the extension of the second manufacturing shed. The point upon which the prosecution lays emphasis is the point that from inside the second manufacturing shed five dead bodies were recovered and this witness has spoken about it from personal knowledge. There is no reason to doubt the evidence of this witness, indeed, he has said that he himself had taken part in the work of recovering the dead bodies from the manufacturing sheds. Two dead bodies were removed by himself personally from the second manufacturing shed. These bodies which he removed were not covered by the debris, but the other three dead bodies which were also recovered from the second manufacturing shed were covered by the debris. The debris had been removed and then the dead bodies were taken out.
6. While dealing with the evidence of this witness, it is Important to bear in mind that on the next day after the explosion i.e. on the 25th August 1954 he submitted an occurrence report about the incident to the Bombay Municipal Corporation. In this occurrence report he reported what he had personally witnessed after going to the site of the explosion upon receiving information about it. In this report, which it would not be for from truth to characterise as almost a contemporaneous document, the witness said that the splinters of the exploded structures were thrown as far as 239 feet from the origin and the masonry work was flung to a distance of 62 feet due to the force of the explosion. Then referring to the manufacturing shed No 1 viz. the sourthern-most-shed, he stated in his report that two dead bodies were lying in the middle of the shed. Speaking about the manufacturing shed No. 2 which was the middle shed, he mentioned in the report that five dead bodies were lying in the shed and they were spread out at different places. Then the report stated that two more dead bodies were lying in a corner in the extended portion of the manufacturing shed No. 2. So far as shed No. 3 was concerned, this witness stated in his report that two dead bodies were lying in the middle of the shed. A perusal of the report would show that the person making the report stated the contents thereof from personal knowledge and not from the information which might have been conveyed to him by somebody else. Upon the evidence of this witness and upon the occurrence report made by him to the Bombay Municipal Corporation on the very next day after the explosion the prosecution relies and contends that in the second manufacturing shed at least more than four persons were employed in the work of manufacturing explosives.
7. Then the prosecution relies upon the evidence of Sub-Inspector Deo. This witness has also deposed that on the 24th August 1954 at about 5 o'clock in the evening he received a telephone message from the Morani Fire Works and the message was that there was an explosion and fire in the factory. Upon receiving this message, the witness accompanied by police constables went to the site of the explosion. He found that the Andheri Fire Brigade had already arrived and was engaged in the work of extinguishing the fire. The police reinforcements arrived in time and the entire area was cordoned off. This witness has also deposed that after the fire was extinguished by about 6 o'clock in the evening two dead bodies of males were recovered from the first manufacturing shed; five dead bodies were recovered from the second manufacturing shed; out of the five, two were bodies of males and three of girls: from the extension of the second manufacturing shed two dead bodies of males were recovered and from the third manufacturing shed two more dead bodies were recovered. According to this witness, in all eleven dead bodies were recovered from all the manufacturing sheds. This is the evidence given by a responsible person who immediately upon receiving information about the explosion hurried to the scene of the explosion and saw for himself the tragic plight which had been created at the spot as a result of the explosion. The prosecution is asking the Court to rely upon the evidence of this witness also in support of its contention that in the second manufacturing shed at any rate more than four persons were employed by the respondent in the work of manufacturing explosives.
8. NOW, the abovementioned evidence upon which the prosecution is relying has been severely criticised by the learned advocate Mr. Mistry appearing for the respondent. So far as the evidence of Digambar Vishram Dalvi is concerned, Mr. Mistry has strenuously contended that he is an unreliable witness and in support of this contention he has invited our attention to certain discrepancies which, according to him, are of such a serious character as to throw doubt upon the truth of the story stated by him. Mr. Mistry says that at one place in his evidence the witness has deposed that including himself ten persons were working in the second manufacturing shed on that day and that at other Places in his evidence he has mentioned this number at different figures. It is true that so for as the number of workers in the second manufacturing shed on that day is concerned, the witness has not adhered to one particular figure in his evidence, but has given different figures in different places. But it is to be remembered that upon each occasion the number stated by him did not go below five. In one place he stated that ten persons including himself were working in the respondent's factory on that day. When questioned as to what he had stated in the inquiry proceedings, he said that on that occasion he had stated that the number of persons working in the second manufacturing shed was five or six. A little later he was Questioned about it and he said that when the matter was at the stage of the inquiry proceedings he had stated that 5 to 7 persons were working in the second manufacturing shed. It is to be noticed that so far as the inquiry proceedings are concerned, this cannot be said to be a serious discrepancy. Whether the number of persons was five or six or whether it was 5 to 7 cannot be said to be an infirmity or an inconsistency of such a character as to shake the confidence of the Court in the story of the witness on the other hand, there is a substantial difference between the number 5 or 6 or 5 to 7 on the one hand and 10 on the other hand. But then it is to be remembered that nearly a year elapsed between the holding of the inquiry proceedings on the one hand and the giving of evidence by this witness on the other hand, and if in the Court the witness stated that ten persons including himself were working in the second manufacturing shed on the date of the explosion, he could not be said to be an unreliable witness merely because a year earlier in the inquiry proceedings he had stated that the number of workers in the second manufacturing shed on that day was 5 or 6 or 5 to 7.
9. Then Mr. Mistry has invited our attention to another discrepancy which Mr. Mistry calls a serious infirmity in the evidence of this witness and that discrepancy is in respect of the names of the workers who were working along with him in the second manufacturing shed on the date of the explosion. In the earlier part of his deposition, the witness, when asked to give the names of his fellow workers in the second manufacturing shed on that day, said that amongst these workers there were Mahadeo, Shankar and Sukur. At the moment he could not remember other names. This was stated by him in his evidence which was recorded on the 20th July 1955. When his evidence was resumed twelve days later on the 1st August 1955, he was again questioned about the names and on that occasion he gave the names of the three persons as Ahmed, Mahadeo and Vishnu. A little later on the same day the names mentioned by him were Mahadeo, Sukur and Vishnu. Therefore, so far as the evidence given by the witness on the 1st August 1955 itself is concerned, the names of Mahadeo and Vishnu were common between the three names given by him. Only the discrepancy arose about Ahmed and Sukur. In this connection it is probable that a witness may remember some names at one time and if he is examined ten or twelve days later, he may forget some of the names given by him on the previous occasion and may remember some names which might not have been given by him previously. In our opinion, on the point of the names given by this witness this was what happened when he gave the names of Mahadeo, Shankar and Sukur on the 20th July, 1955 and gave the names of Mahadeo and Vishnu and Ahmed or Sukur on the 1st August, 1955.
10. The next comment which Mr. Mistry has made on the evidence of this witness is that if he had really been sitting where, he says, he was sitting, he himself would have been blown to pieces and would not have been alive at the date of his evidence. We have not been able to appreciate this submission. The witness has not, stated in his evidence that he was sitting at the southern door of the second manufacturing shed. If he had been sitting at the southern door of the second manufacturing shed, then perhaps there might have been some force in Mr. Mistry's contention that he might have been seriously injured by the explosion. It is quite probable from his evidence that what the witness meant was that he was sitting either at the western door or at the eastern door of the second manufacturing shed, in which case it is quite possible that he might not sustain injuries by reason of the explosion. Then Mr. Mistry says that according to this witness, he passed by the first manufacturing shed while running away. Mr. Mistry says that if he had done so, he would have been killed by the force of the explosion. Mr. Mistry's submission would have gained force, if this witness' story had been that he was just passing by the first manufacturing shed when the explosion occurred. The witness' story, however, is that the explosion had already occurred and it was thereafter that he passed by the first manufacturing shed. This circumstance would detract from the force of Mr. Mistry's submission.
11. Mr. Mistry has next invited our attention to the evidence of witness Mahadeo which he gave in case No. 624/P. By agreement between the parties evidence given by witnesses in case No. 624/PW as; to be considered as evidence in all cases. This witness Mahadeo stated during the course of his deposition that there were 3 or 4 persons working in the second manufacturing shed. Mr. Mistry says that there is a serious conflict, as to the number of workers actually employed and working in the second manufacturing shed on the date of the explosion, between the evidence of Digamber Vishram Dalvi on the one hand and Mahadeo on the other hand and that in view of this conflict of evidence, we should not interfere with the appreciation of evidence as made by the learned Magistrate. We have given a careful thought to this contention of Mr. Mistry. In our view, the story stated by Digamber Vishram Dalvi in his evidence is a correct story viz. that on the date of the explosion there were more than four workers working in the second manufacturing shed, since this story is strongly and independently corroborated by the occurrence report made by the fire brigade officer Bhaskar Govind Sawant on the very next day after the explosion. The learned Magistrate altogether omitted to consider the occurrence report while writing his judgment. I have mentioned above that in the circumstances of this case occurrence report would have almost the same value as a document contemporaneously made. The fire brigade officer had gone to the scene of the explosion in the evening Of the 24th August 1954. He was engaged in the work of extinguishing the fire. Then he and his men were engaged in the work of removing the dead bodies from the manufacturing sheds. By the time this work was over, it was sufficiently late in the day on the 24th August, 1954 It was under these circumstances that he submitted his occurrence report on the 25th August, 1954 and in that report he incorporated what he had personally seen and what had been done by him personally. If we turn to that report, it would appear that five dead bodies were lying in the second manufacturing shed and they were lying at different places in that shed. In the words of the report the dead bodies were 'spread out at different places.' Here, therefore, is material which is unimpeachable and which shows that immediately after the fire was extinguished, five dead bodies were found scattered at different places in the second manufacturing shed and they were taken out of the shed. Two of those bodies were taken cut by the fire brigade officer himself and the others were removed by his men. This occurrence report must, in our view, lend unassailable corroboration to the evidence of Digambar Vishram Dalvi on the point that at least five persons must have been working in the second manufacturing shed at the time of the explosion. On this point Mr. Mistry has Invited our attention to a statement in the evidence of the fire brigade officer Sawant where Mr. Sawant has deposed to having seen 'some moving bodies inside the flames.' From this statement in the evidence of Sawant regarding 'some moving bodies inside the flames'. Mr. Mistry has contended before us that one or more persons, out of the persons whose dead bodies were found in the second manufacturing shed, might have rushed into the shed during the explosion with an idea to save the unfortunate inmates of the shed. Mr. Mistry has contended that a chivalrous instinct of helping people in distress has not become extinct in these days and that in obedience to that natural instinct of chivalry some persons from outside the shed might have rushed into the second manufacturing shed in order to rescue the unfortunate people who were working in the shed and who were trapped in the explosion. Mr. Mistry says that this circumstance would alone explain 'moving bodies inside the flames' which were seen by the fire brigade officer Sawant. We have given most anxious consideration to this aspect of the case placed before us by Mr. Mistry. We must, however, remember, as has been aptly said on occasions more than one, that romance of defence has its own limitations and the romance must be confined to legitimate bounds. In this connection it is to be noted that there has been no cross-examination of any of the large number of prosecution witnesses from, this aspect. For instance, the fire brigade officer Sawant himself, when he made the above statement regarding 'moving bodies inside the flames', was not asked as to what he meant by the movements of the bodies which he saw inside the flames. He was not questioned whether it appeared to him that the 'bodies' which he saw in the flames might have been the bodies of persons who had rushed in with a view to help the unfortunate inmates of the shed. The respondent has submitted a lengthy written statement, but in that statement there is nothing to show that the people who were working in the second manufacturing shed on that day had any relatives working either in the other sheds or waiting outside in the compound. In all, as many as 37 witnesses were examined in this case and not one of them was put any question regarding the alleged rush of the people from outside into the shed for the purpose of rescuing the persons who were working in the shed. There is no evidence, as I have Just said, to show that as a matter of fact there were any persons outside the manufacturing sheds at the time of the explosion or that, if there were any, whether, amongst them, there were any relatives of the people who were working inside the sheds. In this connection, it would appear that amongst the eleven dead bodies which were recovered from the three manufacturing sheda there were dead bodies of Bhiku and Pali. Now, Bhiku and Pali were brother and sister and Mr. Mistry's contention is that it is probable that Pali aged 15, might have been outside the sheds, might have heard the shrieks of her brother who was working in the manufacturing shed and might have thereupon rushed into the shed and might have been trapped in the explosion and died. This aspect of the case is Put before us by Mr. Mistry by way of an illustration in support of his contention that even so far as the second manufacturing shed was concerned, somebody might have rushed into the shed from outside with a view to render help to those who were inside. We have examined this argument also. There is no evidence on the record of the case to shew that amongst the people waiting outside the sheds before the explosion there was any girl of the name of Pali. As I have just said, the evidence falls short even of establishing that there were as a matter of fact any people waiting outside the sheds before the explosion. It is quite probable, in our view, that Pali herself might have been one of the workers in one of the sheds. The facts that she was 15 years old and, therefore, fell short by one year of the age at which people were permitted to work in the sheds, would not, in our view, militate against a probability that she also might have been present in one of the sheds for doing work_ Although her age is mentioned as 15 in the statement of dead bodies which were recovered from the sheds, we cannot conclude that she must have been only 15 and not 16, and even if she was only 15, there is nothing to show that she might not have represented herself to be 16. No strict proof was required before workers were admitted into the sheds for the purpose of doing work. In these circumstances, our view is that both the brother and the sister Bhiku and Pali must have been in one or the other shed and they must have been there for the purpose of work. Then Mr. Mistry has contended that as the first manufacturing shed was shattered to smithereens and as splinters were flying about and hitting persons, it is probable that some persons might have felt giddy and groggy and thereupon they might have just managed to crawl into the second manufacturing shed where there were unfortunately trapped and burnt. This argument also has been examined by us and we have felt constrained to reject it. In our view, this is nothing more than a mere conjecture. When we enter the realm of conjectures and go on merely conjecturing apart from the evidence in support of the conjectures, we do not know where we might end. It is, therefore, proper that only such conjectures as might be reasonable conjectures and as might find some support from the evidence in the case should only be resorted to. The conjecture which Mr. Mistry is asking us to make in this case is against human impulse. In our view, the natural instinct of a person when he sees danger is to escape from the danger zone and not to run, so to say, into the mouth of the danger. The second manufacturing shed was in close proximity of the first manufacturing shed. There was every danger of that shed also catching fire and indeed, the second manufacturing shed also, to a certain extent, suffered from an explosion. If we look at the photograph of that shed, it would appear that a portion of the roof of that shed was blown off. In these circumstances, even if it be assumed that some persons who were hit by the splinters from the first manufacturing shed wanted to put themselves out of danger, even then, in our view, their instinct would have been not to crawl into the second manufacturing shed but to crawl away from it and go on crawling away from it into the open space until they put themselves out of danger. To put it differently, nobody in order to escape from danger would run into the danger itself and yet that would be the position to which we would be reduced, if we were to accept Mr. Mistry's contention. It is no doubt true that the respondent in his written statement has referred to all these conjectures, but if we go through the written statement carefully, it would appear to be merely argumentative and, if we may say so, it is a synopsis of the arguments submitted before us by Mr. Mistry himself. We have taken this written statement into consideration and for the reasons stated above we are not inclined to accept the submission made beforeus by Mr. Mistry with which I have just dealt. It would thus appear that the unassailable circumstance of the recovery of five dead bodies from the second manufacturing shed immediately after the fire was put out would lend an irresistible corroboration to the evidence of Digambar Vishram Dalvi. We accept that evidence and come to the conclusion that on the material date, viz., the date of the explosion more than four workers, at least five, were working in the second manufacturing shed. This amounted to a contravention of condition No. 11 of the licence which was granted to the respondent under the Indian Explosives Act, 1884.
12. Mr. Mistry has next contended that even if we came to the conclusion that the respondent had contravened the provisions of condition No. 11 of the licence granted to him, this being an appeal from acquittal we should not interfere with the order of acquittal. According to Mr. Mistry, there is no substantial and compelling reason calling for our interference with the order of acquittal passed in favour of the respondent. We regret we are unable to accept Mr. Mistry's submission. As I have mentioned above, the occurrence report dated the 25th August, 1954 which was submitted to the Municipal Corporation by the fire brigade officer Sawant is a valuable piece of evidence and it is remarkable that in the elaborate judgment of the learned Magistrate we do not find the slightest reference to this report. This would mean that the learned Magistrate failed to consider material evidence which ought to have been considered. In State v. Vithal Maruti Patil : AIR1953Bom369 , it was held that before the High Court's interference with the order of acquittal would be justified, the High Court must be satisfied that the findings of the trial Judge were grossly wrong or that the approach of the trial Judge to the evidence in the case, or the procedure adopted by him in trying the case, was so materially defective that there was a compelling reason which justified the High Court's interference with his findings. It was pointed out in that case that if the trial Judge had completely failed to consider material evidence or if he had misconstrued any documents, that might amount to a compelling reason. As I have just mentioned above, in this case the learned Magistrate completely failed to consider the most material evidence viz. the occurrence report of the fire brigade officer Sawant which was made by him on the very next day after the explosion. I am calling it the most material piece of evidence, because the witnesses who were examined in this case were examined nearly twelve months after the explosion, whereas the occurrence report which the learned Magistrate failed to consider altogether was written on the very next day after the explosion by the gentleman who had gone to the spot and had taken part in extinguishing the fire and taking out the dead bodies from the manufacturing sheds. Mr. Mistry's argument is that whatever was stated in the occurrence report was deposed to by the fire brigade officer in the witness-box and, therefore, it would not be right to say that there was a failure on the part of the learned Magistrate to consider material evidence in this case. Mr. Mistry, however, overlooks the fact that a circumstance of great importance which emerges from the occurrence report was not deposed to by Mr. Sawant in the witness-box and that circumstance is that according to the occurrence report, five dead bodies which were recovered from the second manufacturing shed were 'spread out at different places.' Now, this statement in the occurrence report is not a statement of little importance. Its importance cannot be exaggerated. It would show that the five people who unfortunately met their death on that date were employed in the shed itself and were engaged in doing work at the time of the explosion. Otherwise, it would be difficult to account for the fact that the dead bridles were found scattered at different places in the shed. In our view, therefore, this is a case in which the learned Magistrate failed altogether to take into consideration a most material piece of evidence and this would amount to a compelling reason to justify our interference with the order of acquittal passed by the learned Magistrate.
13. Then again, the inferences and conjectures, to which I shall presently advert, which the learned Magistrate has drawn in his Judgment for coming to the conclusion that the presence of more than four persons in the second manufacturing shed was not satisfactorily established by the prosecution In this case, were such as no reasonable body of men would have resorted to. For instance, in the paragraph beginning with 'Now, the finding of dead bodies is not conclusive that those dead persons were working in the three manufacturing sheds', the learned Magistrate has observed :
'It may be therefore, that after the 1st explosion some of the workers from the manufacturing sheds may have run out. It may be that some relations of the workers might have run to-words the manufacturing sheds. It may be that they even entered the 2nd manufacturing shed after the first explosion and got killed during the second explosion. It may be that workers from shed No. 1 ran into shed No. 2......... .......... The Fire Brigade Officer has deposed in his cross-examination that he personally removed two bodies from shed No. 2 as they could be clearly seen. They were not under the debris. The other three bodies were under the debris and were removed after the fire was brought under control. Now that is a very important piece of evidence. If there were more than four persons inside shed No. 2 they would have been hurried under the debris just as the three persons were hurried. The fact that two of the five bodies were over the debris shows that they must have come afterwards and died there.'
Now, this is a piece of reasoning which, in our view, no reasonable body of men would have adopted. It is true that some of the bodies were recovered from below the debris and it is true that some bodies were not burried under the debris. But it is difficult to understand why the learned Magistrate should have thought that if all the five persons were working in the second manufacturing shed, all of them should have been burried under the debris. It is not the case that the second manufacturing shed was shattered to smithereens. It was not shattered completely. It did not collapse altogether. A part of its roof collapsed and it is probable that some workers might have been working under that part which gave way and others might have been working in the other part of the shed. There is nothing improbable about it and yet the learned Magistrate thought that if all the five persons had been working in the second manufacturing shed, their dead bodies should all have been burried under the debris. This is a piece of reasoning which no reasonable body of men would have resorted to. Then again, the other conjeetares which are found in the observations of the learned Magistrate, to which I have just referred, are also devoid of any support from the evidence. There is no witness--and as I have just said, as many as 37 witnesses were examined in this case --who has said that there were relations of the workers waiting outside the sheds and that they had rushed into the sheds upon the explosion taking place. There is no evidence again to show that after the explosion had occurred in the first manufacturing shed, some people from that shed itself had run into the second manufacturing shed for shelter. In our view, this conjecture is unnatural, in that it is opposed to the natural in stinct of a person. NO person in order to escape from the danger of fire would run to a place which was in the immediate proximity of the shed which had caught fire. His first impulse--and a natural impulse--would be to run away as fat as possible from the danger zone. Therefore, la our view, it is a conjecture which is wholly unsound to think that the persons waiting outside might have rushed into the second manufacturing shed and might have been trapped in doing so.
13a. Thus, therefore, in this case there are two compelling reasons which would justify our interference with the order of acquittal passed by the learned Magistrate. The first reason is that the learned Magistrate completely failed to take into consideration the most material piece of evidence viz. the occurrence report dated the 25th August, 1954 made by the fire brigade officer Sa-want and the second reason is that the reasoning adopted by the learned Magistrate, to which I have just, referred, in regard to the recovery of five dead bodies from the second manufacturing shed is a reasoning which no reasonable body of men would have adopted.
14. Mr. Mistry has raised a point of law and the point of law raised is that although Rule 81 read with condition No. 11 of the licence imposes an absolute prohibition, mens rea is a constituent element of an offence under Section 5(3) of the Indian Explosives Act, 1884, and that the respondent-accused should not be found guilty of the said offence unless he is shown to have had a guilty mind. In other words, Mr. Mistry says that before the respondent could be convicted under Section 5(3) for a breach of Rule 81, the State must prove that he had an intention to contravene condition No. 11 of the licence. Then Mr. Mistry says that where there is an absolute prohibition and the prosecution fails to prove mens rea, the master cannot be held vacariously liable for the acts of his servant. In this connection he has invited our attention to a decision of the Privy Council in Srinivas Mall V. Emperor 49 Bom LR 688: AIR 1947 PC 135. In that case accused No. 1 and his employee accused No. 2 were charged under Rule 81(4) of the Defence of India Rules. 1939, with having sold salt at a price exceeding the maximum price fixed by the District Magistrate, The Privy Council came to the conclusion that the evidence proved beyond doubt that accused No. 1 knew of accused No. 2's illegal exactions and connived at them and. therefore, they affirmed the conviction against accused No. 1 and agreed with the view taken by the High Court of Patna that accused No. 1 had knowledge of the illegal exactions on the part of accused No. 2. The Privy Council went on to observe that the view taken by the High Court that where there was an absolute prohibition and no question of mens rea arose, the master was criminally liable for the acts of his servant, was not a correct view, and the Privy Council dissented from that view. According to the Privy Council, it is only a limited and exceptional class of offences which can he held to be committed without a guilty mind. These offences are of a comparatively minor character and the Privy Council expressed surprise that it could possibly be contended that offences under the Defence of India Act and the Defence of India Rules which were punishable with imprisonment for a period of three years would possibly fall within the limited and exceptional category of offences. Hero also Mr. Mistry says that an offence under Section 5(3) of the Indian Explosives Act, 1884, which is punishable with imprisonment which may extend to three years and fine, would not fall within the exceptional category of minor, offences which could be committed by a person without any question of mens rea arising, and that therefore before the respondent could be convicted of that offence, the prosecution must show that he had the mens rea.
15. Next Mr. Mistry has referred to Emperor v. Isak Solomon Macmull 50 Bom LR 190: AIR 1948 Bom 364, in which a Division Bench of this Court consisting of the learned Chief Justice and Mr. Justice Gajendragadkar dissented from Emperor v. Mahomed Bashir (1945) 48 Bom LR 46: AIR 1946 Bom 315 and following the Privy Council decision in Srinivas Mall v. Emperor (B), held that it was not in every case of an absolute prohibition that no question of mens rea arose It was a case in which Clauses 5 and 22 of the Motor Spirit Rationing Order, 1941, were contravened and it was held that, in the absence of mens rea, a master was not vicariously liable for an offence committed by his servant for selling petrol in absence of requisite coupons and at a rate in excess of the controlled rate.
16. Upon these authorities Mr. Mistry eon-tends that unless the prosecution has established that the respondent had the mens rea i.e. the guilty mind i.e. the intention to contravene condition No. 11 of the licence, he could not be convicted under Section 5(3). In this connection Mr. Mistry has drawn our attention to the written statement of the respondent in which the respondent has said that he had five capable Mukadams: (1) Chhagan Sukar, (2) Tukpram Namdeo, (3) Shankar Atmaram, (4) Sakhubai Mahadeo find (5) Laxmibai Jina and that they were supervising the details of the work done in the factory. According to the respondent, as stated by him in his written statement, alt these Mukadams knew their work thoroughly. Chhagan was thoroughly acquainted with the manufacture of fire works, find therefore, he was looking after the manufacturing side of the work in the factory. The respondent has said in his written statement that every day in the morning he used to go to the factory and have a general supervision. He has said that he 'never permitted or ordered more than four workers at any one time to work in any of the three manufacturing sheds' and that he 'had given strict instructions to that effect to Chhagan.' Speaking about the 24th August, 1954, the respondent has said in his written statement that he had gone to the factory at about 8-30 o'clock in the morning. He had spent about two hours in the factory and thereafter he had gone to Bombay. At the time of the explosion he was in his shon at Bombay. In the afternoon of 24th August, 1954 Chhagan was present in the factory and he was in charge of the manufacturing work. To quote the respondent's words in his written statement:
'It was Chaggan who used to ask each particular worker to work at each particular place. He would know the aptitude of each in relation to the kind of work going on at a particular time. It would be impossible for me to direct or observe every moment or constantly all this as an owner of the factory employing 150/175 work-men.'
Upon evidence also, says Mr. Mistry, it would appear that Chhagan was in charge of the process of manufacturing explosives in the respondent's factory on that day Mr. Mistry says that at the time of the explosion the respondent was not even present on the licensed premises, but was away in Bombay, and as soon as he was informed of the explosion be rushed to the factory. In this manner, says Mr. Mistry, the respondent did not have the requisite mens rea and, therefore, he could not be convicted under Section 5(3) of the Indian Explosives Act, 1884.
17. Now, though it is true that actus non facit reum nisi mens sit rea is a cardinal doctrine of criminal law, the legislature can create offence which consist solely in doing an act, whatever the intention or state of mind of the person acting may be. Whether mens rea is a constituent part of a crime or not must in every case depend upon the wording of the particular enactment. As Goddard J. said in Evans v. Dell (1937) 53 TLR 310 .
'With the complexity of modern legislation one knows that there are times when the Court is constrained to find that, by reason of the clear terms of an Act of Parliament, mens rea or the absence of mens rea becomes immaterial and that if a certain act is done, an offence is committed whether the person charged knew or did not know of the Act.'
In Brend v. Wood (1946) 62 TLR 462 , Lord Goddard C. J. said :
'It is of the utmost importance for the liberty of the subject that a Court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.'
It is therefore, clear that the legislature can either clearly or by necessary implication rule out mens rea as a constituent part of a crime. In Sherras v. De Rutzen (1895) 1 QB 918, Mr. Justice Wright pointed out : 'There is a presumption that mens rea. .......Intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must, be considered.' In Halsbury's Laws of England, Vol. 9, at page 11, the learned author says:
'In a limited class of offence, mens rea is not an essential element. This class consists, for the most part, of statutory offences of minor and only quasi-criminal character and, in order to determine whether mens rea is an essential element of an offence, it is necessary to look at the object and terms of the statute which creates it.'
In State v. Caulfield Holland, Ltd. : (1953)IILLJ458Bom (H), it was observed that it was open to the legislature to provide for offences where mens rea might not be an essential element and that if the legislature expressed its intention in that behalf in unambiguous and clear language, the principle that mens rea must ordinarily be established in a criminal case would have no application. In the absence of clear and unambiguous language indicating such an intention on the part of the legislature, it might be permissible to ascertain the intention of the legislature by examining the object of the statute in question and its general scheme. The nature and extent of the punishment awardable under the statute might also have to be considered, but, -- and this is important--a necessity for that consideration would arise when the language used by the legislature is not Clear enough to express the intention which it had when it created an offence by passing a statute.
18. Thus, there is a judicial agreement that in order to find whether mens rea is or is not a constitutent element of an offence created by a statute, we must turn to the words of the statute and see what the intention of the legislature was when it created the offence by enacting the statute. Did the legislature Intend that the doing of an act per se, without anything more, should constitute an offence or did it intend that the doing of it with a certain state of mind should amount to an offence? If the essence of an offence lay solely in the doing of an act and nothing more was required, the Question of mens rea would not arise and the state of mind, knowledge or intention of the door would be irrelevant. On the other hand, if the legislature intended that the state of mind of the doer should be a constituent of the offence, the prosecution would fail without the proof of mens rea. Now, if we turn to Section 5(3) of the Indian Explosives Act, 1884, no such word as 'knowingly' or 'intentionally' occurs before the word 'imports' in the sub-section. It is, therefore, clear that the intention of the legislature in enacting the sub-section as that the state of the mind of the person was immaterial and irrelevant when an offence was committed under the sub-section by the contravention of the rules of the licence. Rule 81 (1) of the Explosives Rules, 1940, says :
'No explosive shall be manufactured possessed, used or sold except under and in accordance with the conditions of a licence granted under these rules.'
It is to be noted that the words used are : 'No explosive shall be manufactured'. The words are not: 'No person shall manufacture explosive'. The prohibition is imposed upon the doing of a certain thing viz. the manufacture of explosive; which means that the obligation to see that the prohibition is enforced and not evaded is on the licensee himself. The obligation is non transfer-able. If the manufacture of an explosive is carried out in contravention of any of the conditions of the licence, that contravention itself, without anything more, becomes an offence for which the licensee himself is liable, since the obligation is upon the licensee himself to see that the prohibition against the manufacture of an explosive in contravention of the conditions of the licence is not evaded or relaxed.
19. 'Turning to Rule 81 (2) which says : 'The licensee shall be responsible for all operations in connection with the manufacture, possession or sale of explosives which may be conducted in the licensed premises', It would appear again that the responsibility is cast upon the licensee for whatever is done in the licensed premises in connection with the manufacture, possession or sale of explosives. This would show that the intention of the rule is that the person holding the licence shall himself, whether he is present or not present in the licensed premises, be responsible for whatever operation is done in those premises in connection with the manufacture, possession or sale of explosives. Even if he is absent from the licensed premises, he must see to it that the prohibition, which is imposed by Rule 81 (1) read with condition No. 11, is not tampered with. Even if his men i.e. Mukadams are in charge of the manufacturing sheds, even so the responsibility for the enforcement of the prohibition does not shift from him. Under the Act and the rules it is always he -- no matter where he may be when an explosive is in the process of being manufactured -- who is responsible. If we were to accept Mr. Mistry's contention that the licensee cannot be successfully prosecuted under Section 5(3) for contravention of the conditions of the licence, unless the contravention occurs with the knowledge of the licensee, it would always be easy for the licensee to evade his obligations under the license. All that he has got to do in that case is to put himself away from the licensed premises when a condition of the licence is to be broken. Such a contingency could never have been intended by the legislature to materialise.
20. In order to gather the intention of the legislature when Section 5(3) of the Indian Explosives Act, 1884, was enacted, we may with advantage turn to the provisions of the Sections 3, 4 and 5 of the Explosive Substances Act, 1908, Section 3 says: 'Any person who unlawfully and maliciously causes by any explosive substance. . ..' Section 4 provides
'Any person who unlawfully and maliciously ....(a) does any act with intent to cause by an explosive substance...... (b) makes or has in his possession or under his control any explosive substance..........'
Section 5 provides : 'Any person who makes or knowingly has in his possession or under his control any explosive substance....'. It is, therefore, clear that when the legislature intended that the state of the mind of a person should be a vital, constituent element of an offence, words indicative of that intention were expressly used by the legislature and such words, in the case of Sections 3, 4, and 5 of the Explosive Substances Act, 1908, were: 'unlawfully and maliciously', 'with intent to cause' and 'knowingly has in his possession'. Turning to Section 5(3) of the Indian Explosives Act, 1884, such or similar words are conspicuous by their absence, which must show beyond doubt that when the legislature enacted Section 5(3) of the Act, it intended that the state of the mind of a person or his knowledge or his intention should be immaterial for the purpose of constituting an offence under that sub-section.
21. For the reasons stated above, we cannot accept the contention of Mr. Mistry that the respondent cannot be convicted of an offence under Section 5(3) of the Act, unless the prosecution establishes that he had an intention to commit a breach of Rule 81 of the Explosives Rules, 1940, read with condition No. 11 of the licence.
22. The result, therefore, is that the appeal filed by the State of Bombay will be allowed and the order of acquittal passed in favour of the respondent will be set aside. We convict the respondent under Section 5(3) of the Indian Explosives Act, 1884, read with Rule 81 of the Explosives Rules, 1940, and sentence him to pay a fine of Rs. 150/-taking into consideration the facts that the respondent has paid compensation to the survivors of the victims' families, has not been able to do business for the last two years and his stock of 1600 lbs. of fire works which was locked by Government has been rendered useless. In Emppror V. Mahadevappa 29 Bom LR 153 : AIR 1927 Bom 209 (I) Mr. Justice Crump in the course of his judgment said that the employer's ignorance was often held to be a mitigating circumstance. With respect, we follow that view and as the respondent, according to his written statement, was not present in the factory at the time of the explosion hut was away, he might not have known that more than four persons were employed in manufacturing shed No. 2 on the date of the explosion. It is in view of these circumstances that while convicting the respondent under Section 5(3), we sentence him to pay a fine of Rs. 150/-or in default to suffer one month's rigorous imprisonment.
23. Appeal allowed.