Holding

The Court held that the seized materials were "explosive substances", the appellants were in conscious possession without a valid licence, and the prosecution had proved the elements of both Section 5 of the Explosive Substances Act and Section 120B of the IPC, so the convictions stand.

Summary

The appellants, four brothers who ran the shop M.F. Maniyar & Sons, were convicted under Section 5 of the Explosive Substances Act, Section 120B of the Indian Penal Code and related provisions for possessing and selling large quantities of potassium cyanide, potassium chlorate, detonators and other explosives without a valid licence. The Supreme Court examined whether the seized materials fell within the definition of "explosive substances", whether the appellants were in "conscious possession" and whether knowledge of the explosive nature could be presumed. It held that the substances were indeed explosive, the appellants possessed them knowingly and without authority, and that the prosecution had proved the elements of both Section 5 and Section 120B, including an inferred agreement to commit the illegal acts. Consequently, the convictions were upheld, the fines under Section 5 were remitted, and the imprisonment terms were reduced to the periods already served by the three living appellants. The appeals were dismissed.

Issues considered

Whether potassium cyanide, mixtures of potassium cyanide and sulphur, detonators and related materials constitute "explosive substances" under Section 2 of the Explosive Substances Act.
Whether possession of such substances in the quantities seized amounts to "conscious possession" within the meaning of Section 5.
Whether the prosecution must prove the accused's knowledge of the explosive nature of the substances or whether a presumption of knowledge can be drawn from the circumstances.
Whether the elements of Section 5 – explosive substance, possession, and suspicion of unlawful purpose – are satisfied.
Whether a conviction under Section 120B IPC can be sustained without an express agreement, i.e., by inference of a criminal conspiracy.
Whether the licence held by the appellants complied with the 1966 Government notification prohibiting possession of such explosives.

Legislation cited

Arms Acts. 25(1)(a), s. 3, s. 30
Explosive Substances Acts. 2, s. 5, s. 5(3)(b)
Indian Penal Code, 1860s. 120A, s. 120B
Poisons Acts. 6(1)(a)

Subjects

explosive substancesconscious possessionlicence requirementExplosive Substances Actcriminal conspiracySection 5Section 120Bpresumption of knowledgearmspoisons

Judgment

68

A MOHAMMAD USMAN MOHAMMAD HUSSAIN
MANIYAR & ANR.
v.

STATE OF MAHARASHTRA

B March 3, 1981

(0. CHINNAPPA REDDY AND BAHARUL !SLAM JJ.)

Explosive Substances Act, sections 2 and 5-Whether potassium cyanide,
mixture of potassium cyanide and sulphur, detonators etc. etc., are 'explosive
substances' wtihin the definition of the expression-Whether such recovery in large
c quantities amounts to "conscious possession" within the meaning of section 5-
Presumption of knowledge that a particular substance is an explosive substance,
when can be made.

Government of India, Ministry of Works & Housing and Urban Development
Notification No. 3/12/65-PII(IX) dated /st April, 1966, requiring a licence to make
or possess the expfossive substances-Possession without such a· licence, of the
D explossive substances is unauthorised.

Penal Code, section 120B-Criminal conspiracy,--Nature of proof.

F.akhruddin, the owner of the shop, known as M. F. Maniyar & Sons,
Sholapur, along with his three sons, was tried for offences under section J20B of
the Penal Code, section 5 of the Explosive Substances Act, section 3 read with
E section 25 of the Arms Act and section 6(J){a) of the Poisons Act. All the four
were convicted· and sentenced by the Sessions Judge, Sholapur, to sentences of
different durations under these Acts and also to fine. The substantive sentences
were directed to run concurrently. The appeals before the High Court having
failed the appellants have come in appeal by special leave to this Court.

Dismissing the appeals, the Court while remitting the sentences of fine and
F reducing the sentences of imprisonment to the periods already undergone by the
three living appellants,

HELD : I : J. In order to bring home the offence under. section 5 of the
Explosive Substances Act, the prosecution has to prove : (i) that the substance in
question is explosive substance; (ii) that the accused makes or knowingly has in
his possession or under his control any explosive substance ; and (iii) that he
does so under such circumstances as to give rise to a reasonable suspicion that he
.G is n~t doing so for a lawful object. [75D-G] T
J : 2. The burden of proof of the ingredients of section 5 of the Explosive
Substances Act, is on ·the prosecution. The moment prosecution has discharged
that burden, it shifts to the accused to show that he was making or possessing
the explosive substance for a lawful object, if he takes that plea. [75F-G]
H
2. On a consideration of the evidence of the Explosive Inspector, and
other evidence, the substances in question which were recovered from the appe-
M.U. M.H. MANIYAR v. MAHARASHTRA (Baharul Islam, J.) 69

llants were "explosive substances" within the definition of that expression in sec- A
tion 2 of the Explosive Substances Act. [76 F G]

3 : l. The factum of the recovery of the said articles from the possession
of appellant No. 1 and also the evidence that his three sons, appellants 2 to 4,
who were managing and running the shop of M. F. Maniyar and Sons from
which the incriminating substances were seized clearly show that all of them were
guilty. [76 G-H, 77A]
B
3 : 2. The several substances seized, not being minute or small in quantity,
make it clear that the appellants were in "conscious possession" of the substances
seized within the meaning of section 5 of the Explosive Substances Act. [77A-B]

· 3 : 3. The possession of the explosive substances by the appellants were
without any authority since the appellants had no licence or authority to make or
possess the explosive substances as required by the Government of India, Ministry c
of Works & Housing and Urban, notification dated 1st April, 1966. The licence
possessed by them is dated 3.1-3-1956 which was not in pursuance and in confor-
mity of the said Government notification. [77G-H]

3 : 4. The knowledge that the particular substance is an explosive subs-
tance depends on different circumstances and varies from person to person. Un-
like an ignorant man or a child coming across an explosive substance who D
picks it up out of curiosity not knowing that it is an explosive substance, a person
of experience may immediately know that ·it is an explosive substance. In the
instant case, as the appellant had been dealing with the substance in.question for
a long time, they certainly knew or at least they shall be presumed to have known
what those substances were and for what purpose they were used. The said
presumption is further fortified from the fact that a half K.G. of blasting powder/
E
potassium cyanide was sold to the decoy witness by the appellants. [78E-F, G]

4. For an offence under section .120B of the Penal Code the prosecution
need not necessarily prove that the perpetraters exp~essly agreed to do or cause to
be done the illegal act; the agreement may be proved by necessary implication. In
this case, the fact that the appellants were possessing and selling explosive subs-
tances without a valid licence for a pretty Jong time leads to the inference that
they agreed to do and/or cause to be done the said illegal act, for, without such F
an agreement the act could not have been done for such a long time:[79G-H,80A]

CRJMINAL APPELLATE JURISDICTfON : Criminal Appeal Nos.
150/76 and 285 of 1976.

....
I
Appeals by special leave from the Judgment and Order dated G
, 29.1.1976 of the Bombay High Court in Cr. A. 526j73.

S. B. Bhasme, V. N. Ganpule and Mrs. V., D. Khanna for the
Appellant in Cr. A. 150/76,

U. R. La/it and K. R. Chowdhary for the Appellant in Cr. A. H
285/76

I
70 SUPREME COURT REPORTS [1981] 3 s.c.R.

A R. N. Sachthey and M. N. Shroff for the Respondents in b~th
the Appeals.

The Judgment of the Court was delivered by

BAHARUL ISLAM J. These two appeals arise out of a common

B judgment and order passed by the High Court of Bombay, Criminal
Appeal No. 150 of 1976 has been preferred by two appellants,
Mohammad Usman Mohammad Hussain Maniyar (hereinafter
"Usman") and Mohammad Taufik Mohammad Hussain Maniyar
(hereinafter 'taufik') and Criminal Appeal No. 285 of 1976 has
been preferred by Mohammad Hussain Fakhruddin Maniyar (here-
c inafter 'Fakhruddin) and Mohammad Rizwan Mohammad Hussain
Maniyar (hereinafter 'Rizwan'). All of them were convicted and
sentenced by the Sessions Judge as follows :

(i) Under Section I20B of the Penal Code and sentenced to
suffer rigorous imprisonment for three years, each ;
D (ii) Under Section 5 of the Explosive Substances Act and
sentenced to rigorous imprisonment for three years. each,
and to pay a fine of Rs. I 000 each, in default, to suffer
rigorous imprisonment for two months, each;
(iii) Under Section 5 (3) (b) of the Explosives Act and sentenced
to suffer rigorous imprisonment for six months, each, and
E to pay a fine of Rs. 500/- in default, to suffer rigorous
imprisonment for one month, each;
(iv) Under Section 3 read with Section 25(1) (a) of the Arms
Act and sentenced to suffer rigorous imprisonment for
two months each ;
F (v) Under Section 30 of the Arms Act and sentenced to pay
a fine of Rs. 100/- each, in default, to suffer rigorous
imprisonment for two weeks, each ;
(vi) Under Section 6 (!) (a) of the Poisons Act read with Rule
2 of the Rules framed under the said Act and sentenced.
G to suffer rigorous imprisonment for one month, each, and
to pay a fine of Rs. 50/- each, in default, to suffer rigorous y

imprisonment for 15 days, each. '

The substantive sentences were directed to run concurrently.
H The first two preferred one appeal and. the second two a separate
appeal before the High Court. )'he High Court by a common
judgment dismissed both the appeals. Hence this appeal before ~s.

I
I
M.U. M.H. MANIYAR v. MAHARASHTRA (Baharul Islam, J.) 71

by special leave. This common judgment of ours will dispose of A
. .,, . both the appeals.

2. During the pendency ·of the appeal before this Court,
appellant, Fakhruddin, died on 10.10.1978. His legal representatives
have been brought on record as there are sentences of fine. against
the deceased appellant. B
3. The facts necessary for the purpose of disposal of these
appeals may be stated thus:

In the year 1967 a number of murders were perpetrated by a
gang of murderers. During the course of investigation into these
offences, potassium cyanide was found to have been used for poison- c
.~·
ing the victims. On 11.9.1964, P.W.17, Bendre, P.S.I, who was attach-
ed to the local crime branch at Sholapur received an information that
the firm known as M.F. Maniyar & Sons was selling potassium
chlorate which is a highly explosive substance. He then initiated
the work of finding out the persons responsible for the supply of the
explosive to the miscreants. He received information that appellant,
D
Fakhruddin, was the owner of the shop known as M.F. Maniyar &
Sons, situated at house No. 383, East Mangalwar Peth, Sholapur,
and possessed licence for sale and storage of potassium
chlorate in House No. 615 in East Mangalwar Peth; Fakhruddin
with the assistance of his three sons (appellants 2 to 4) and his
servants stored at the place mentioned in their shop situated at house
E
No. 383, East Mangalwar Peth, to persons who did not possess
licence to purchase potassium chlorate. P.W. 17 and Sub-inspector
Tasgaokar of the local Intelligence Branch proceeded to Mangalwar
Peth Police Chowky and called a bogus customer 'Basanna Pujari' by
name. He also called the local panchas. He, then, gave a ten rupee F
currency note to P.W.4. He initialled the currency note. He also
gave a bag to P.W.4. and told him to buy half k.g. of potassium
chlorate from M/s.M.F. Maniyar & Sons. P.W. 4 went to the
shop. He found in the shop accused Chandra Kant (since acquitted),
who was a servant of Fakhruddin. P.W.5 gave him the ten rupee
currency note and asked for half k.g, of potassium chlorate, which G
he said he needed for blasting purpose. Chandra Kant gave him
half k.g of potassium chlorate and returned an amount of Rs. 2.50P.
P .W .4 took the powder in the bag and was returning. Police challeng-
ed him and seized the bag. Police interrogated him. He told police
in presence of the Panchas that he had purchased the powder which H
was inside of the bag from M.F. Maniyar and got back Rs. 2.SOP.
P.W.17 searched the cash box in the firm of Fakhruddin and found
72 SUPREME COURT REPORTS [1981] 3 S.C.R.

A the ten rupee currency note initialled by him. The shop was search-
ed and 220 grams of Black gun powder was found in the show case.
He then alongwith the panchas went up to the first floor. They
found black gun powder there also. They found it to be a mixture
of potassium chlorate and sulphate used for fire arms. Samples were
sealed and one of them was given to appellant, Fakhruddin. A
B panchnama, Ex.20, was prepared. P.W.17, thought it necessary to
send for an expert to identify the powder. He, therefore, posted
some constables at the shop, sealed appellants' godowns in Mangalwar
Peth and Shukrawar Peth and made panchnamas, Exhibits
22 and 23. Next morning, he sealed both the 'shops and prepared
panchnamas Exhibits 24 and 25. On 13th September, he sent the
c samples to the Explosives Inspector. On the 14th he lodged a comp-
laint at the Jail Road Police Station at Sholapur. Police registered a
case anci the P.S.I started investigation. The P.S.I sent for the Drugs
Inspector and the Central Excise Inspector. - All of them, then visited
the appellants' godowns at Shukarwar Peth at Sholapur. They found
the shops in the sealed condition. A search was conducted in the
D presence of the appellants. The Police Officer and others, having
obse~ved due formalities, searched the premises. In course of the
search they found and seized some powder as per Panchnama, Ex. 27.
Samples of the powder seized were also given to the appellants. After
that they went and searched the apJ?ellants' premises in Mangalwar
Peth. Nothing incriminating was found there. They, then, returned
E to the firm M/s. M.F.- Maniyar and searched it. They found and
seized some powders as per Panchnama, Ex. 28. Samples of these
powders also were given to the appellants. On the same night they
found 49 percussion caps on the roof of the adjacent shop and
seized them as per Ext. 30. On the same night P. S. I., Patil,
received a panchnama made by P.S.I., Joshi, (P.W.18) under which
F detonators had been seized. Acting on an information from P.W.
17. P.W. 18 arrested appellant, Taufik on September 15, 1967.
Appellant, Taufik told the police that he had buried some -detonators
in the compound of his bungalow and he would produce them.
Accordingly, he led P.W. 18 to his bungalow which was admittedly
in occupation of all the appellants, removed some earth under a
G mango tree in the premises and took out three tins containing 20 ¥
l
packets of detonators. It was seized under panchnama, Ex. 33. As the
detonators were explosive they were not opened. Taufik was
arrested and produced before P .W .17.
H
The Explosives Inspector was of the opinion that some of the
explosives seized were highly explosive. P.W.17, then, with the
M.U. M.H. MANIYAR v. MAHARASHTRA (Baharul Islam, J.) 73

permission of the District Superintendent of Police destroyed the A
explosives as instructed by the Explosives Inspector.

'r. 4. During the course of investigation from 11.9.1967 to
15.9.1967 the following arms and explosives were seized:-
(!) 200 grams of highly explosive gun powder.
B
(2) 40 kg. and 150 grams of blasting powder.
(3) 3 kg. and 350 g. of mixture of potassium chlorate and
sulphur.
(4) 54 detonators.
c
(5) 251 caps like contrivances containing prohibited mixture of
red arsenic sulphide and chlorate used to act as improvised
percussions caps.

(6) 104 kg. and 500 g. of potassium chlorate.
(7) 37.5 kg. of special gelatines.
D
(8) 300 kg. of sulphur.
(9) 2496c carilpion crackers of prohibited size and containing
prohibited mixtures.
(10) 510 grams of potassium cyanide.
E

(11) About 450 kg. of sulphur.

(12) 217 caps like contrivances of the same description as is the
case with item No. S above.
(13) 2500 detonaters. F
(14) 27 live cartridges, 12 bores, and
(15) Mixture of sulphur and potassium chlorate 1/2 kg.

Out of these articles, the articles at serial Nos. I to 5 were found G
in the shop of M/s. M.F. Maniyar & Sons. Articles at serial
numbers 6 to 11 were found in the clandestine godown situated
at 986, Shukarwar Peth at Sholapur on 15.9.1967. Article at serial
no. 12 was found on the roof at East Mangalwar Peth, Shukarwar
which is adjacent to the shop of M/s.M.F. Maniyar & Sons. Article at H
serial number I 3 were produced by appellant, Taufik, as stated earlier
from the com poi.Ind of their bungalow at I 56A, Railway Lines,
74 · SUPREME COURT REPORTS (1981] 3 S.C.R

A Sholapur. Articles at serial number 14 consist of 12 bore cartridges
found in the house of accused Abdulla Mandolkar (since acquitted).
They were alleged to have been delivered by appellant,
Fakhruddin, to accused, Fateh Ahmed Phuleri (since acquitted). The
article at serial number 15 was the one sold to P.W. 4, Basanna by
accused, Chandrakant (since acquitted).
B
5. Appellant number 1 is the father of appellants 2 to 4. Accused
Chandrakant and Fateh Ahmed (both since acquitted) were the
servants of Fakhruddin working in the shop. Accused Abdula
Mandolkar (since acquitted) was a relation of Fateh Ahmed. Police
after investigation submitted charge-sheet. Eventually the appellants
c and the three other above named co-accus~d were committed
to the court of Sessions for trial.

6. The allegatio·ns against the appellants i.ri · substance were
that they agreed to do the following illegal acts; (i) to acquire and
prepare explosives unauthorisedly and to possess and supply explosi-
D ves for illegal pruposes; (ii) to acquire and possess sulphur
unauthorisedly and to sell the same; (iii) to 'acquire and posses~ and
sell gun-powder and cartridges in breach of the conditions of the
licence granted under the Arms Act and Explosives Act; (iv) to
acquire and stock in clandestine godown and- illegally sell potassium
chlorate in breach of the conditions of the licence granted under the
E provisions of the Arms Act; (v) to acquire without licence percussion
caps and to sell them illegally; and (vi) to acquire and posssess with-
out licence poison and to sell the same illegally. The changes were
also to the above effect.

7. The appellants pleaded not guilty. In his statement
F under Section 342 of the Code of Criminal Procedure, appellant,
Fakhruddin, additionally stated that he alone managed tlie shop M/s.
M.F. Maniyar & Sons from which the incriminating substances were
found. He admitted his presence at the place and at the time of
the first raid on the 11th September He has also admitted the search
and seizure of articles as per Exhibit 28. He has also admitted that
G potassium cyanide was purchased and possessed by him but he has
pleaded that he was told that no licence was necessary for possessing
potassium cyanide.

8.!ii\Mr.Lalit learned Advocate, appeared for appellants no.
H 1 & 2 and Mr. Bhasme, learned Advocate, appeared for appellants
3 & 4. Learned counsel have not challenged the convictions and
sentences of the appellants under Section 5(3)(b), Section 3 read
M.U. M.H. MANIYAR v. MAHARASHTRA (Baharul Islam, J.) 15

with Section 25(1)(a), and Section 30 of the Arms)tAct, and under A
Section 6( !)(a) of the Poison Act read with rule 2 of the rules framed
under that Act. They have only challenged. the conviction and
sentences under Section 5 of the Explosive Substances Act, and
Section 120B of the Penal Code. We are, therefore, called upon to
examine the correctness or otherwise of the convictions under B
Section 5 of .the Explosive Substances Act and Section 120B of the
Penal Code.

9. Let us first consider the conviction under Section 5 of the
Explosives Substances Act. The Section reads as follows:
'
5. "Any person who makes or knowingly has in his possession c
or under his control any explosive substance, under such
circumstances 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 lawfol 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 D
which may extend to fourteen years, to which fine may be
added, or with imprisonment for a terms which may extend to
five years, to which fine may be added"

10. In order to bring home the offence under Section 5 of the E
Explosive Substances Act, the prosecution has to prove; (i) that the
substance in question is explosive substance; (ii) that the accused
makes or knowingly has in his possesstion or under his control any
explosive substance; and (iii) that be does so under such circumstan-
ces as to give rise to a reasonable suspicion that he is not doing
so for a lawful object. F
The burden of proof of these ingredients is on the prosecution.
The moment the prosecution has discharged that burden, it shifts to
the accused to show that he was making or possessing the explosive.
substance for a lawful object, if he takes that plea.
G
11. Explosive substance has been defined in section 2 of the
Explosive Substances Act. · The definition is·as follows : ,, .
. l
"2. In this Act the expression "explosive substance"
shall be deemed to include any materials for making any explo-:
sive substance; also any apparatus, machine, implement or H
material used, or intended to be used, or adapted for causing,
· or aiding in causing, any .explosion in or · wit.Ii ·any explosive·
76 SUP.R'EME COURT REPORTS (1981) 3 S.C.R.

A substance ; also any part of any such apparatus, machine or
implement."

"Explosive substance" has a broader and more comprehensive
meaning than the term 'Explosive', 'Explosive substance' includes
'Explosive'. The term 'Explosive' has not been defined in the Act. The
B dictionary meaning of the word 'Explosive' is 'tending to expand
suddenly with loud noise ; 'tending to cause explosfon' (The Concise
Oxford Dictionary). In the Explosives Act, the terms 'explosive' has
been defined as follows :

1
"4. , In this Act, unless there is something repugnant in
the Definitions, subject or context,-
c
(!) "explosive"

(a) means gunpowder, nitro-glycerine, dynamite, guncotton,
blasting powders, fulminate of mercury or of other metals,
coloured fires and every other substance, whether sim.ilar
D to those above-mentioned or not, used or manufac-
tured with a view to produce a practical effect by explo-
sion, or a pyrotechnic effect ; and

(b) includes fog-signals, fireworks, fuses, rockets, percus-
sion-caps, detonators, cartridges, ammunition of all
E descriptions, and every adaptation or preparation of art
explosive as above defined ;"
It may be mentioned that the definition of 'explosive' under
Section 4 was amended later, but we are not concerned with the
amendment as the occurrence in the instant case took place before
the amendment.
F
On a consideration of the evidence of the Explosives Inspector,
)
and other evidence. the Sessions Judge and the High Court have
found, in our opinion correctly, that the substances in question
were explosive substances within the definition of.the expression.

G · 12. In the instant case, appellant 1 has admitted, as stated
earlier, that these articles were seized from his possession. The
eviden~e also shows that bis three sons, appellants 2 to 4, used to
manage and run the shop M. F. Maniyar & Sons from which the
incriminating substance were seized.
H 13. It was argued by learned counsel that .. possession within
the meaning of Section 5 of the Explosive Substances. Act means
. M.U. M.H. MANIAR V. MAHAIHSHfRA (Baharui ls/am, J.) 77

:. 'conscious possession'. There can be no doubt about it. The subs- A
tances seized were not minute or small in quantity. ·They were in
large quantities. In fact half k,g. of the incriminating substance was
sold to P. W. 4 by an employee of the fi~m. The detonators were
produced by appellant No. 3 from the premises of the Bungalow
()CCupied by all the occupants. . It cannot but, therefore, be held that
the . appellants were in 'conscious possession' of the substance B
seized.

14. The notification dated !st of April, 1966 published by the
Government of India,, Ministry of Works and Housing and Urban
Development (Ex. 65) reads as follows :

"NOTIFICATION''
c
No. 3/12/65-PII (IX)-In exercise of the powers conferred
by Section 6 of the Indian Explosives Act, 1884 (4 of 1884),
and in supersession of.the notification of the Government of D
India in the later Department of Labour No. M-1217, dated
the 9th February 1939, the Central Government is pleased to
prohibt the manufacture, possession and importation of any
explosive consisting of or containing sulphur or sulphurate in
admixture with chlorate or potassium or any other chlorate ;

Provided that this prohibition shall not extend to the
E
manufacture or possession of such explosive :-

(a) in small quantities for scientific purpose;

(b) for the purpose of manufacturing heads of matches ;
or F

\ (c) for me in toy amdrces (paper caps for toy pistols).

Sd/- P. Rajaratnam
Under Secretary to the Government
of India"
-~ G
The appellants had no licence or authority to make or possess
the explosive substances as required by the above Government
notification. The licence possessed by them is dated 31.3.1956
(Exhibit 90) which was not in pursuance and in conformity of the
aforesaid Government Notification. The possession of the 'explosive H
substances' by the appellants, therefore, were without any authority.
78 SUPREME COURT REPORTS [1981] 3 S.C.R.

A 15. Learned counsel for the appellants cited before us
1939 (2) All E. R. 641 in support of his contention. The head note
of the report reads :

"Upon an indictment against an accused for knowingly
having in his possession explosive substances, the prosecution
B has to prove that the accused was in possession of an explosive
substance within the Explosive Substances Act, 1883, s. 9, in
circumstances giving rise to a reasonable presumption that
that possession was not for a lawful object. Proof of know-
ledge by the accused of the explosive nature of the substance
is not essential, nor need any chemical knowledge on the part
c of the accused be proved."
The appellants have also cited another English decision repor-
ted in 1957 (!) All E.R. 665 in which it has been observed :
,;We think that the clear meaning. of the sect.ion is that
the person must not only knowingly have in his possession the
D substance but must know that it is an explosive substance. The
section says he must knowingly have in his possession an
explosive substance; therefore it does seem that it is an
ingredient in the offence that he knew it was an explosive
substance."
With respect, the above decisions lay the correct legal proposi-
E tion. But the question is whether in his case appellants knew that
the substances in question were explosive substances. The know- y
ledge whether a particular substance is an explosive substance
depends on different circumstances and varies from person to person.
An ignorant man or a child coming across an explosive substance
may pick it up out of curiosity and not knowing that it is an explo-
F sive substance. A person of experience may immediately know )
that it is an explosive substance. In the' instant case, the appellants
had been dealing with the substances in question for a long time.
They certainly knew or atleast they shall be presumed to have known
what these substances they were and for what purpose they were
used. In fact, when P. W. 4 Basanna asked for half k. g. of blasting
G powder, appellants' servant, accused Chandrakant, immediately
y
'
supplied the requisite powder to P. W. 4 from the shop. This
evidence clearly ·establishes that the appellants did know the nature
and character of the substance. In other words, they knew that. th~
substances.in question were explosive substances. The courts belo..y
H
therefore, were right in holding that an offence under Section 5 qf
the Explosive Substances Act was committed.
M.U. M.H. MANIYAR v. MAHARASHTRA (Baharul !slam, J.) 79

16. Learned Counsel submitted that the evidence on record A
sho~s that appellant, Fakhruddin, alone acquired and possessed the
substance in question. That was the plea of Fakhruddin. It also
might be true that Fakhruddin also had acquired the substances but
the evidence on record clearly shows that all the appellants were in
possession and control of the substances in quest\on. The submission
-0f the appellants has no substance and all the four persons are liable B
for the offence.

17. Now to turn to the conviction under Section l 20B of the
Penal Code. Section 120B provides :

"120B. (I) Whoever is a. party to a criminal conspiracy to
commit an offence punishable ........... .''

.J 'Criminal conspiracy' has been defined under Section 120A of
of the Penal Code as follows :

"120 A. When two or more persons agree to do, or cause to
D
be done.-

(I) an illegal act, or

(2) an act which is not illegal by illegal means, such an agree-
ment is designated a criminal conspiracy :-
E
. "' · Provided that no agreement except an agreement to commit
an offence shall amount to a criminal conspiracy unless some
tact besides the agreement is. done by one or more parties to such
agreement in pursuance thereof.

Explanation.-It is immaterial whether'the illegal act is the F
ultimate object of such agreeme;1t, or is merely incidental to that
\ object,"

The contention of learned counsel is that there is no evidence
of agreement of the appellants to do an illegal act.
G
It is true that there is no evidence of any express agreement
between the appellants to do or cause to be done the illegal act. For
an offence under section I 20B, the prosecution need not necessarily
prove that the perpetraters expressly agreed to do or cause to be
done the illegal act; the agreement may be proved by necessary H
implication. In this case, the fact that the appellants were possessing
and selling explosive substances without a valid licence for a pretty
80 SUPREME COURT REPORTS [19.81] 3 s.c.R.

A long time leads to the inference that they agreed to do and/or cause
to be done the said illegal act, for, without such an agreement the
act could not have been done for such a long time.

17. Mr. Lalit additionally submitted that appellant No. 2
Rizwan did not do any overt act. He was a mere partner of M/s.
B M.F. Maniyar & Sons and as such his conviction has been bad in
law. The submission is not correct. For, appellant Rizwan himself
in his statement under Section 342, Cr. P. C., has stated "Myself
(and) accused Nos. 1 and 4 looked after the business of the Firm.
M.F. Maniyar & Sons". The learned courts below on a conside-
ration of the evidence on record have come to the conclusion that he
c also occasionally used to work in the firm. We do not have valid
reason to differ from them.

18. Now comes the question of sentence. The real man in
the entire clandestine trade was appellant no. 1, who is now dead.
The three other appellants being his sons were merely assisting him.
D We are told that appellant no. 2, Rizwan, has already served bl/2
months of imprisonment and appellants 3 and 4, Usman and Taufik,
six months of imprisonment each. In our view ends of justice will
be met if the sentences of imprisonment are reduced to the periods
already undergone by the three living appellants.

E In addition to the sentence of imprisonment there was a fine of
Rs. 1000/- eaeh for the offence under Section 5 of the Explosive
Substances Act and also sentence of fine against the appellants under
Section 5(3) (b) of the Explosives Act. and under Section 30 of the
Arms Act. In our opinion, ends of justice will be met if the fine
under Section 5 of the Explosive Substances Act is remitted in case
F of all the appellants, including appellant No. l, Fakhruddin. With
the above modification in the sentence the appeals are dismissed ..

S. R. Appeals dismissed.