The burden of proof on the prosecution to establish possession and intent to endanger life or property under the Explosives Substances Act, 1908.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This acquittal appeal is directed against the impugned judgment dated 27.4.2010 by which the learned Sessions Judge, North Bastar Kanker in Sessions Case No.89/2009, acquitted the respondent herein from the charges under Sections 4 and 5 of the Explosives Substances Act, 1908 (hereinafter called as 'Act of 1908') holding that the prosecution has failed to bring home the aforesaid offences beyond reasonable doubt.

2. Mr.Soumya Rai, learned Panel Lawyer for the appellant/State, would submit that the learned Sessions Judge has committed grave legal error in acquitting the respondent herein by recording a finding which is perverse to record. He would further submit that finding of the learned Sessions Judge holding that the prosecution has failed to bring home the offence is a perverse finding and contrary to material available on record and as such, it is liable to be setaside.

3. None present for the respondent though served.

4. We have heard learned counsel appearing for the appellant / State, considered his submissions made hereinabove and went through the records with utmost circumspection.

5. Case of the prosecution in brief, is that on 24.11.2008 at village Kurrubhat in two rooms of crusher plant owned by Madan Mohan Singh @ Pappu Singh the appellant herein has kept safety fuse wire length 6 mtr. x 25 points, 7 kg. of explosive substance in Uriya bag and 7 pieces of detonator without any license and without authority of law and thereby committed the offence.

6. Learned Sessions Judge after appreciating oral and documentary evidence available on record acquitted the respondent herein from the aforesaid offences holding that the said offences have not been proved.

7. The respondent was charged for offence under Sections 4 and 5 of the Act of 1908 from whom he has been acquitted. Section 4(b) of the Act of 1908 states as under:

“4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. Any person who unlawfully and maliciously

(a) xxx xxx xxx

(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India.”

8. In order to bring home the offence under Section 4(b) of the Act of 1908, the prosecution has to prove that the substance in question was explosive substance and the accused was in his possession or under his control any explosive substance with intent to endanger life or cause serious injury to property in India.

9. Explosive substance has been defined in Section 2 of the Act of 1908. The definition states as under:

“2(a). In this Act the expression “explosive substance” shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.”

10. Thus, Section 2 of the Act of 1908 has a deeming provision which states that explosive substance would include any material for making any explosive substance.

11. “Explosive substance” has a broader and more comprehensive meaning that the term 'explosive'. 'Explosive substance' includes 'explosive'. The term 'explosive' has not been defined in the Act. The dictionary meaning of the word 'explosive' is 'tending to expand suddenly with load noise'; 'tending to cause explosion' (THE CONCISE OXFORD DICTIONARY). In the Indian Explosive Act, 1884, the term 'explosive' has been defined as follows:

4. In this Act, unless there is something repugnant in the subject or context,

(1) “explosive”

(a) means gunpowder, nitroglycerine, dynamite, guncotton, blasting powders, fulminate of mercury or of other metals, coloured fires a