ORDER
M.C. Desai, J.
1. The applicant has been convicted under Section 4 of the Explosive Substances Act (VI of 1908) for knowingly having in his possession or control an explosive substance in the circumstances showing that he was not having it in his possession, for a lawful object. It has been found as a matter of fact, on the basis of evidence, that he was carrying the explosive bomb in a pocket of his knickers and that it exploded causing injuries to him. He offered no explanation for his possession of the bomb; on the contrary he denied his possession of it altogether.
2. Section 7 of the Act lays down that 'no court shall proceed with the trial of any person for an offence against this Act except with the consent of the Central Government'. The cognizance of the offence under the Act was taken in this case by a court with the consent of the Governor and not the Central Government. The Governor claims to have the power to give consent under Notification No. 25/1/54-Police (I) dated 31-8-1954. There is no provision in the Act conferring any power upon the Central Government to delegate its powers and duties to any authority subordinate to it. Section 7 is very clear; it bars a court's taking cognizance of the offence under the Act except with the consent of the Central Government.
So long as the consent of the Central Government is not produced before it, it is forbidden to take cognizance of the offence, it being immaterial whether the consent of any other authority has been obtained or not. It is to be noted that the word used in Section 7 is 'consent' and not 'sanction' and the Court may treat a prosecution consented to by a subordinate authority as a prosecution consented to by the Central Government if there is evidence to prove such consent, though it may not treat a prosecution sanctioned by a subordinate authority as a prosecution sanctioned by the Central Government even though there is similar evidence.
But what is required is the specific consent by the Central Government to the particular prosecution and not a general consent. A direction by the Central Government that it gives consent to all prosecutions that are consented to or sanctioned by a subordinate authority cannot be accepted as consent to a particular prosecution specifically consented to by the Subordinate authority. The word 'consent' in the section implies 'assent to some proposition submitted, something more than a mere general consent or requirement'. Legally 'consent' means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another and implies knowledge; see 15 C. J. S., pp. 979 and 980.
The consent that is required under Section 7 is specific consent for the particular prosecution. When the facts of a particular offence are brought to the notice of the Central Government it may direct that if the prosecution for the offence is consented to by the Governor of the State it shall be deemed to be consented to by itself and such consent would be enough. A general direction by the Central Government that consent by a Governor to the prosecution for any offence committed in any circumstance at any time by anyone in future shall be deemed to be consented to by itself is inconsistent with the spirit of Section 7, of the Act, which contemplates that the Central Government shall consider the facts of the particular offence before consenting to prosecution for it. Like sanction, consent must be given after considering the facts of the particular offence. I am, therefore, of the opinion that the notification referred to above giving general consent to all prosecutions for offences which are approved of by the Governor is null and void.
3. I do not think any question of validity of delegation of power arises in the case. The Central Government has not delegated its power of giving consent to the Governor; what it has done is to give general consent to all prosecutions consented to by him. No particular form of consent is required, and it can be in the form 'I consent to this prosecution' as well as in the form 'I consent to this prosecution if the Governor approves of it' or 'consents to it'. The latter is a conditional consent, but not invalid, and if the condition is fulfilled, it is as good as an unconditional one. The trouble in the case is that specific consent in any form to this prosecution is lacking, and the court could not take cognizance of the offence.
4. The applicant seems to be guilty under Section 5(3)(a) or (b) for manufacturing an explosive or possessing or transporting an explosive or doing all the acts, in contravention of the Rules made under the Explosives Act. I do not know why he was not prosecuted for this offence, the prosecution for which does not require sanction of any particular authority. I also do not understand why the Magistrate did not charge the applicant with the offence of Section 5(3)(a) and fb). Since he was not charged with that offence I cannot now convict him for that offence.
5. The matter is a serious one and I consider that the applicant must be tried for the offence of Section 5(3)(a) and (b) of the Explosives Act even though it means that he would have to undergo trial second time.
6. I set aside the applicant's conviction and sentence and acquit him of the offence' of Section 5 of the Explosive Substances Act but order his retrial for the offence of Section 5(3)(a) and (b) of the Explosives Act. A fresh charge for the offence shall be framed against the applicant and fresh evidence shall be recorded.