IMPORTANT POINT
The determination of whether seized material constitutes explosive substance and the consideration of confessions of co-accused can be crucial in deciding on the grant of anticipatory bail.

JUDGMENT :

Sujit Narayan Prasad, J.

The instant appeal filed under Section 21(4) of the National Investigation Agency Act, 2008, is directed against the order dated 27.01.2023 passed by the learned Addl. Sessions Judge-I, Sahibganj in A.B.P. No.607 of 2022 in connection with Mirzachowki P.S. Case No.29 of 2022 for the offence registered under Sections Section 3/4 of the Explosive Substance Act, whereby and whereunder, the prayer for anticipatory bail of the appellant, has been rejected.

2. Learned counsel appearing for the appellant has submitted that nothing incriminating has come against the appellant, since, his complicity has only been shown on the basis of confession made by one Dev Singh.

The submission has also been made that the material which was recovered said to have explosive substance, i.e., MEC Power-1 Class-2, explosive, 83mm x 2.78 Kgs of 24 pieces and MEC Force (H), tied by aluminium wire contained in the brown colour plastic bag and 47 pieces of explosive; 83mm x 2.78 Kg, cannot be said to be explosive substance, rather, it can only be considered to be explosive and hence, there is no ingredients of Section 3/4 of the Explosive Substance Act, on the basis of which, FIR has been instituted.

Learned counsel appearing for the appellant has further submitted that merely because the explosive has been seized even accepting the allegation to be proved, then also, there is no applicability of ingredients of Section 3/4 of the Explosive Substance Act, reason being that, the explosive itself, cannot be said to be substance.

3. The coordinate Bench of this Court has heard this matter on 23.02.2023 and has called for the case diary.

4. Mr. Vineet Kumar Vashistha, Spl. P.P. appearing for the State of Jharkhand has submitted by referring to paragraph-10 of the case diary which contains confessional statement of Dev Singh, who happens to be the brother of one other co-accused person, namely, Raj Kumar Singh, has disclosed as under paragraph-10 thereof that the appellant of this case along with his elder brother, Raj Kumar Singh are involved in the business of stone. He has further disclosed the specific involvement of his brother in using explosive substance for the purpose of making of stone.

5. Learned Spl. P.P., in view of the aforesaid, has submitted that since the investigation is still going on and the contention which has been raised that brother of Dev Singh along with the appellant of this case, namely, Tarkeshwar Jaiswal, were involved in illegal mining and for that purpose, the explosive substance is being procured for the purpose of making of stone and as such, it is not a fit case where the prayer for privilege of anticipatory bail, may be allowed.

In counter to the submission made on behalf of the appellant that the material which has been recovered as per the seizure memo cannot be construed to be explosive substance, in this regard, submission has been made by referring to the incriminating material not construed to be wholly explosive, rather, it is explosive substance and for the purpose of strengthening his argument, he has placed the judgment rendered by the Hon’ble Apex Court in the case of Mohammad Usman Mohammad Hussain Maniyar & Anr. Vrs. State of Maharashtra, reported in 1981 AIR 1062, wherein, the definition of ‘explosive substance’ has been dealt with, wherein, explosive itself cannot be construed to be substance unless, the said explosive itself can cause the explosion, then it will come under the fold of explosive substance, therefore, the ingredients of Section 3/4 of the Explosive Substance Act, will be attracted.

6. Here, in the instant case, the recovery which has been shown of articles as per the seizure memo, is explosive substance, since, the same is Potassium Chloride and Ammonium Nitrate and both these substances are itself can cause explosion without any aid of detonator and hence, it is under explosive substance and as such, there is ingredient of Section 3/4 of the Explosive Substan