A trial under the Explosive Substances Act is invalid without prior consent from the District Magistrate, highlighting the mandatory nature of such consent as essential for legal proceedings.

JUDGMENT :

GITA GOPI, J.

1. Challenge is given to the judgment of conviction and sentence dated 22.9.2006 passed by the learned Additional Sessions Judge, Fast Track Court, Vadodara in Sessions Case no.156 of 2004, whereby both the accused came to be convicted for the offence punishable under Section 5 of the Explosive Substances Act, 1908 and Sections 286 and 120B of the INDIAN PENAL CODE , 1860 (IPC). The accused were sentenced to undergo rigorous imprisonment of two years for the offence punishable under Section 5 of the Explosive Substances Act, 1908 and six months simple imprisonment for the offence punishable under Sections 286 and 120B of IPC. The sentences were ordered to run concurrently and set off for the imprisonment undergone was given by the learned Additional Sessions Judge. The accused were also fined for Rs.500/- each and in default of payment of fine, one month simple imprisonment was awarded.

2. Learned advocate Mr. Pravin Gondaliya for the appellants has submitted that there is a grave error of law in passing the order of conviction. The learned Judge has not appreciated the evidence of the witnesses and the facts of the case in proper spirit and right perspective and has erred in holding and believing the appellants as guilty for the offence punishable under Section 5 of the Explosive Substances Act, 1908, wherein no sanction has been granted for the trial to proceed. Learned advocate Mr. Gondaliya referring to the provision of Section 7 of the Explosive Substances Act, 1908 stated that trial itself is bad in law as Section 7 lays down restriction on the trial of offence under the Explosive Substances Act, 1908 and stated that unless and until the consent is given by the District Magistrate, no Court shall proceed the trial of any person for offence against them under the Act.

2.1 Mr. Gondaliya further submitted that no sanction has been granted to the prosecution, the conviction is absolutely illegal and contrary to law and thereby, is required to be quashed and set aside.

2.2 Referring to the facts of the case, Mr. Gondaliya has submitted that as per the evidence of the investigating officer and as per the panchnama made on 2.3.2004, material recovered at the place of panchnama of 3.3.2004 raises suspicion on the story of the prosecution. Mr. Gondaliya submitted that the alleged incident took place on 2.3.2004 at around 12.45 hrs., wherein for the same offence, FIR came to be lodged by the investigating officer on 3.3.2004 at around 20.15 hrs. The delay of lodging the complaint for the recovery which had already been made on that day creates contrary case of the prosecution and the same substance is also shown to be recovered on the next date which raises serious doubt upon the story of the prosecution and therefore, submitted that rightly, no permission had been granted by the District Magistrate.

2.3 Mr. Gondaliya further submitted that in fact, no explosive substance has been recovered from the possession of the accused. Mr. Gondaliya has submitted that possession of the residential house was not of the ownership of the accused. Mr. Gondaliya has submitted that some of the accused who were shown in the FIR have been dropped in the charge-sheet by the report under Section 169 of the Code of Criminal Procedure, 1973 b