Holding

Prior sanction is not required under the Explosives Act, 1884; the seized items are explosives of Class 2 and Class 6; conviction based on the trustworthy investigating officer’s evidence is sustainable; and the sentence imposed is proper.

Summary

The appellants were intercepted in Surat in 1988 with 180 detonators and were charged under Section 9-B(i)(b) of the Explosives Act, 1884 and Section 5 of TADA, 1985. The trial court convicted them only under the Explosives Act, sentencing each to one year imprisonment and a fine of Rs.1,000; the High Court affirmed this judgment. On appeal, the Supreme Court examined whether a prior sanction from the Central Government was required for prosecution, whether the seized items qualified as explosives under the Act and Rules, and whether a conviction could rest solely on the investigating officer’s testimony. The Court held that the Explosives Act contains no provision mandating prior sanction, that the items were explosives of Class 2 and Class 6 as per Schedule I of the Explosives Rules, and that the investigating officer’s evidence was trustworthy and sufficient for conviction. It further found the sentence appropriate and dismissed the appeal.

Issues considered

Whether prior sanction of the Central Government is required for prosecution under Section 9-B(i)(b) of the Explosives Act, 1884.
Whether the seized detonators constitute "explosives" within the meaning of Section 4(d) of the Explosives Act and Schedule I of the Explosives Rules, 1983.
Whether a conviction can be sustained solely on the evidence of the investigating officer without independent corroboration.
Whether the custodial sentence and fine imposed are justified in view of the nature of the offence and the duration of the trial.

Legislation cited

Explosives Act, 1884s. 4(d), s. 9-B(i)(b)
Explosive Substances Act, 1908
Terrorist and Disruptive Activities (Prevention) Act, 1985s. 5

Subjects

Explosives Actprior sanctioninvestigating officer evidenceclassification of explosivessentencingTADAcriminal procedure

Judgment

LOPCHAND NARUJI JA T AND ANR. A
v.
STATE OF GUJARAT

SEPTEMBER 10, 2004

[ARIJIT PASAYAT, PRAKASH PRABHAKAR NAOLEKAR, JJ.]
B

Criminal trial:

Conviction based on evidence of investigating officer-held, sustainable.

. Explosives Act, 1884: c
Sec. 9-B(i)(b)-Prior sanction of prosecution-Held, Not necessary.

Sec. 4(d)-Explosives Rules, 1983-Class 2 and Class 6-
Schedule-l-Ammunition dynamites-Held, these are explosives.
D
The appellants were charge sheeted for the offence punishable under
Sections 9-B(i)(b) of the Explosives Act, 1884, and Section 5 of TADA
1985, for possession of 180 detonators (aluminium dynamites with
ammonium tubes and electrical red wires). The trial court convicted the
appellants under Section 9-B(i)(b) of the Act of 1884 and sentenced him E
to undergo imprisonment for one year and a fine of
Rs. 1000 with default stipulation, but acquitted them of the charges
·under Section 5 of the TADA, 1985. High Court upheld the judgment of
the Sessions Court.

Before this Court the appellant contended that without prior F
sanction of prosecution by the Central Government the proceedings
were illegal; that the articles recovered cannot be said to be explosives
and the appellants could not have been convicted; that there was no
independent evidence and conviction based on the evidence of
investigating officer was not sustainable; and that since the appellants
had faced trial for about 10 years they should not have been convicted
G
with punishment of custodial sentence.

The Respondents contended that no sanction was necessary under
the Explosives Act of 1884; that the report of the Controller of Explosives
indicates the substance was an explosive of Class 2 and Class 6 under H
329
330 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A Schedule I to Explosives Rules 1983 and that the conviction and sentence
are well merited.

Dismissing the Appeal, the Court

HELD : 1. Prior sanction for prosecuting is not provided under the
B Explosive Act, 1884 and therf'fore it is not required. [331-H)

2. The evidence clearly shows that the substances recovered were
explosives of Class 2 and Class 6 of Schedule-I. (332-B)

3. When the investigating officer was found to be trustful and in
c spite of incisive cross-examination, nothing material has been brou~ht
to discredit his evidence, the Trial Court was justified in recording
conviction on his evidence alone. (333-E)

4. The custodial sentence and fine imposed do not warrant any
reduction. [333-G)
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 580
of 1999.

From the Judgment and Order dated 1.12.98 of the Gujarat High Court
in Cr!. A. No. 998 of 1998.
E
'{imal Chandra and S. Dave for the Appellants.

Ms. Vibha Datta Makhija and Ms. Sadhna Sandhu for Mrs. H. Wahi
for the Respondent.
F The Judgment of the Court was delivered by

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 Explosives Act, 1884 (in short the 'Act'). The Trial Court sentenced each
G
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:

H On 20.4.1988, the appellants came to Surat from Indore and were
LOPCHANDNARUJIJATv. STATE[PASAYAT,J.] 331

intercepted by the police at the bus stand. They were found to be in A
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,
B
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
c
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 D
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 E
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 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 F
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. G

It is to be noted that the plea relating to sanction is based on confusion
between two statutes 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 H
332 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A 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
B so, the plea that the articles were not explosives cannot be sustained.

The two classes are as follows:

"Class 2- Nitrate Mixture Class:

c "Nitrate-mixture" means any preparation, other than gunpowder,
which is fonned 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
D 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
E 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 anns, 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,
F 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.
G (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
H its own means of ignition and is not included in Division 1, such
LOPCHAND NARUJI JATv. STATE [PASAYAT, J.] 333

as cartridges for small arms other than safety cartridges and charges A
for common shells and torpedoes containing any explosives, tubes
for firing explosives, and war rocket, which do not contain their own
means of ignition.

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

Note-The expression "ammunition containing its own means of
ignition" means ammunition having an arrangement, whether attached C
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 D
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 froin 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- E
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
F
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.
G
In the aforesaid background the custodial sentence and fine imposed do
not warrant any reduction.

The appeal is accordingly dismissed.

V.M. Appeal dismissed. H