Possession of Ammonium Nitrate does not amount to an offence under the Explosive Substance Act.

ORDER :

This petition has been filed challenging the proceedings in S.C.No.150 of 2017, pending on the file of the Assistant Sessions Court, Mettur, Salem District.

2. Based on the complaint given against the petitioner, an FIR came to be registered against the petitioner for an offence under Section 4(b) of the Explosive substance Act, 1908. The case was investigated and a final report came to be filed by the respondent police for an offence under Sections 4(b), 5 and 6 of the Explosive Substance Act and Section 9 B of Explosive Act. The said final report was taken cognizance by the Judicial Magistrate No.2, Mettur and thereafter the case has been committed to the Assistant Sessions Court, Mettur.

3. The learned counsel for the petitioner submitted that admittedly in this case, the following substances were found in possession of the petitioner:

(1) 316 bags of Ammonium Nitrate each 50 Kgs,

(2) Unnamed explosive materials 10 bags each 50 kgs,

(3) Two bags of PVC rasin each 25 kgs,

(4) 2 bags of Aluminium powder each 15 kgs totally 330 bags without valid licence from the competent authority.

4. The learned counsel by pointing out the above substance would submit that Ammonium Nitrate is not an Explosive substance. In order to substantiate the said submission, the learned counsel for the petitioner brought to the notice of this Court the proceedings of the Department of Explosive, wherein the said authority has categorically stated that Ammonium Nitrate and Potassium Nitrate individually are not explosives.

5. The learned counsel for the petitioner would further submit that there is no requirement to have licence in order to hold this substance. In order to substantiate this submission, the learned counsel for the petitioner brought to the notice of this Court, the communication from the Ministry of Commerce and Industry Petroleum and explosives Safety Organisation (PESO), made to the District Collector of Salem. In the said communication, an opinion has been given with regard to the four substances that were recovered from the petitioner and it has been categorically stated that Items No.2, 3 and 4 which have been mentioned herein above are not explosives and insofar as Ammonium Nitrate is concerned, no specific rules have been made. The learned counsel for the petitioner also brought to the notice of this Court the fact that no licence is required for the manufacture and storage of either Ammonium Nitrate or Potassium Nitrate.

6. The learned counsel also placed reliance on the judgment of this Court and also the judgment of the Andra Pradesh and Madya Pradesh High Court, in order to substantiate his submissions.

7. This Court in M.Antony Gomes Vs. State reported in 2014 SCC Online Mad 8100, held as follows:

“2. The complaint proceeds as if at about 13.45 on 08.06.2012, on instructions from the Superintendent of Police, Kancheepuram, the Inspector of police, by name lakshmi Murgugan, special Sub Inspector of Police, and Suresh, Police Constable, had been to Sankarapuram stone quarrying area, by way of surprise inspection. At that time, they found raw materials such as, open boosters, Ammonium rolls and Gelatin sticks stored in the shed adjacent to quarrying area and A1 Krishnan, A2 Jeeva @ Jeevanantham and A3 Saravanan were present inside the shed and when they were questioned, they informed that the explosive substances were kept in the shed at the instance of the owner Antony Gomez, Manager Kothandam and Superrvisor Senthil and one Balu @ Balasundaram, and explosive substances were stored there without any licence. At the same time, the Police officials have also seen a Tata Tarras Lorry bearing Registeration No.AP 16 TV 5445, which was parked near the shed. The Police officials arrested A1 to A3 and seized explosive substances vis, (i) Electric Detonator-358 nos. (ii) Cable Electric Detonator-429 nos. (iii)Gelatin Sticks- 128 nos. (iv)Detonator cables-346 nos. (v) Ammonium Hydrate packed Roos-131 nos. (vi) Boosters-135 nos and (vii)Am