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TMI Blog1981 (3) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Sessions Judge as follows: (i) Under Section 120B of the Penal Code and sentenced to suffer rigorous imprisonment for three years, each; (ii) Under Section 5 of the Explosive Substances Act and sentenced to rigorous imprisonment for three years each, and to pay a fine of ₹ 1000 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 to pay a fine of ₹ 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; (v) Under Section 30 of the Arms Act and sentenced to pay a fine of ₹ 100/- each, in default, to suffer rigorous imprisonment for two weeks, each; (vi) Under Section 6 (1) (a) of the Poisons Act read with Rule 2 of the Rules framed under the said Act and sentenced to suffer rigorous imprisonment for one month, each, and to pay a fine of ₹ 50/- each, in default, to suffer rigorous imprisonment for 15 days, each. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dra Kant gave him half k.g of potassium chlorate and returned an amount of ₹ 2.50p. P.W.4 took the powder in the bag and was returning. Police challenged him and seized the bag. Police interrogated him. He told police in presence of the Panchas that he had purchased the powder which was inside of the bag from M.F. Maniyar and got back ₹ 2.50P. P.W.17 searched the cash box in the firm of Fakhruddin and found the ten rupee currency note initialled by him. The shop was searched 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 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 samples ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etonators. (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. (8) 300 kg. of sulphur. (9) 2496c campion crackers of prohibited size and containing prohibited mixtures. (10) 510 grams of potassium cyanide. (11) About 450 kg. of sulphur. (12) 217 caps like contrivances of the same description as is the case with item No. 5 above. (13) 2500 detonaters. (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. 1 to 5 were found 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 serial number 13 were produced by appellant, Taufik, as stated earlier from the compound of their bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants 3 4. Learned counsel have not challenged the convictions and sentences of the appellants under Section 5(3)(b), Section 3 read with Section 25(1)(a), and Section 30 of the Arms Act, and under Section 6(1)(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 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 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 lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and every adaptation or preparation of an 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. 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. 12. In the instant case, appellant I has admitted, as stated earlier, that these articles were seized from his possession. The evidence also shows that his three sons, appellants 2 to 4, used to manage and run the shop M. F. Maniyar Sons from which the incriminating substance were seized. 13. It was argued by learned counsel that possession within the meaning of Section 5 of the Explosive Substances Act means 'conscious possession'. There can be no doubt about it. The substances seized were not minute or small in quantity. They were in large quantities. In fact half k.g. of the incriminating substance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used be proved. The appellants have also cited another English decision reported in 1957 (1) All E.R. 665 in which it has been observed: We think that the clear meaning of the section is that the person must not only knowingly have in his possession the 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 proposition. But the question is whether in his case appellants knew that the substances in question were explosive substances. The knowledge 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 explosive 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 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 substances without a valid licence for a pretty 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. 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 consideration of the evidence on record have come to the conclusion that he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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