N Criminal Appeal Nos
15076 and 285 of 1976
Appeals by special leave from the Judgment and Order dated 2911976 of the Bombay High Court in Cr A 52673
section B Bhasme V N Ganpule and Mrs V D Khanna for the Appellant in Cr A 15076
U R Lalit and K R Chowdhary for the Appellant in Cr
A 28576 70 R N Sachthey and M N Shroff for the Respondents in both the Appeals
The Judgment of the Court was delivered by BAHARUL ISLAM J
These two appeals arise out of a common judgment and order passed by the High Court of Bombay Criminal Appeal No 150 of 1976 has been preferred by two appellants Mohammad Usman Mohammad Hussain Maniyar hereinafter Usman and Mohammad Taufik Mohammad Hussain Maniyar hereinafter Taufik  and Criminal Appeal No 285 of 1976 has been preferred by Mohammad Hussain Fakhruddin Maniyar hereinafter Fakhruddin and Mohammad Rizwan Mohammad Hussain Maniyar hereinafter Rizwan 
All of them were convicted and sentenced 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 Rs 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 Rs 500 in default to suffer rigorous imprisonment for one month each iv Under Section 3 read with Section 251 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 Rs 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 Rs 50 each in default to suffer rigorous imprisonment for 15 days each
The substantive sentences were directed to run concurrently
The first two preferred one appeal and the second two a separate appeal before the High Court
The High Court by a common judgment dismissed both the appeals
Hence this appeal before us 71 by special leave
This common judgment of ours will dispose of both the appeals
During the pendency of the appeal before this Court appellant Fakhruddin died on 10101978
His legal representatives have been brought on record as there are sentences of fine against the deceased appellant
The facts necessary for the purpose of disposal of these appeals may be stated thus In the year 1967 a number of murders were perpetrated by a gang of murderers
During the course of investigation into these offences potassium cyanide was found to have been used for poisoning the victims
On 1191964 PW17 Bendre PSI who was attached to the local crime branch at Sholapur received an information that the firm known as MF Maniyar  Sons was selling potassium chlorate which is a highly explosive substance
He then initiated the work of finding out the persons responsible for the supply of the explosive to the miscreants
He received information that appellant Fakhruddin was the owner of the shop known as MF Maniyar  Sons situated at house No 383 East Mangalwar Peth Sholapur and possessed licence for sale and storage of potassium chlorate in House No 615 in East Mangalwar Peth Fakhruddin with the assistance of his three sons appellants 2 to 4 and his servants stored at the place mentioned in their shop situated at house No 383 East Mangalwar Peth to persons who did not possess licence to purchase potassium chlorate
PW 17 and Sub inspector Tasgaokar of the local Intelligence Branch proceeded to Mangalwar Peth Police Chowky and called a bogus customer Basanna Pujari  by name
He also called the local panchas
He then gave a ten rupee currency note to PW4
He initialled the currency note
He also gave a bag to PW4 and told him to buy half kg
of potassium chlorate from Ms MF Maniyar  Sons
PW4 went to the shop
He found in the shop accused Chandra Kant since acquitted who was a servant of Fakhruddin
PW5 gave him the ten rupee currency note and asked for half kg
of potassium chlorate
which he said he needed for blasting purpose
Chandra Kant gave him half kg of potassium chlorate and returned an amount of Rs 250p
PW4 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 MF Maniyar and got back Rs 250P PW17 searched the cash box in the firm of Fakhruddin and found 72 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 Ex20 was prepared
PW17 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 to the Explosives Inspector
On the 14th he lodged a complaint at the Jail Road Police Station at Sholapur
Police registered a case and the PSI started investigation
The PSI sent for the Drugs Inspector and the Central Excise Inspector
All of them then visited the appellants  godowns at Shukarwar Peth at Sholapur
They found the shops in the sealed condition
A search was conducted in the presence of the appellants
The Police officer and others having observed due formalities searched the premises
In course of the search they found and seized some powder as per Panchnama exhibit 27
Samples of the powder seized were also given to the appellants
After that they went and searched the appellants  premises in Mangalwar Peth
Nothing incriminating was found there
They then returned to the firm Ms MF Maniyar and searched it
They found and seized some powders as per Panchnama exhibit 28
Samples of these powders also were given to the appellants
On the same night they found 49 percussion caps on the roof of the adjacent shop and seized them as per Ext
On the same night PS I Patil received a panchnama made by PSI Joshi PW18 under which detonators had been seized
Acting on an information from PW 17
PW 18 arrested appellant Taufik on September 15 1967
Appellant Taufik told the police that he had buried some detonators in the compound of his bungalow and he would produce them
Accordingly he led PW 18 to his bungalow which was admittedly in occupation of all the appellants removed some earth under a mango tree in the premises and took out three tins containing 20 packets of detonators
It was seized under panchnama exhibit 33
As the detonators were explosive they were not opened
Taufik was arrested and produced before PW17
The Explosives Inspector was of the opinion that some of the explosives seized were highly explosive
PW17 then with the 73 permission of the District Superintendent of Police destroyed the explosives as instructed by the Explosives Inspector
During the course of investigation from 1191967 to 1591967 the following arms and explosives were seized 1 200 grams of highly explosive gun powder
2 40 kg
and 150 grams of blasting powder
3 3 kg
and 350 g of mixture of potassium chlorate and sulphur
4 54 detonators
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
7 375 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 12 kg
Out of these articles the articles at serial Nos
1 to 5 were found in the shop of Ms MF Maniyar  Sons
Articles at serial numbers 6 to 11 were found in the clandestine godown situated at 986 Shukarwar Peth at Sholapur on 1591967
Article at serial No 12 was found on the roof at East Mangalwar Peth Shukarwar which is adjacent to the shop of Ms
MF Maniyar  Sons
Article at serial number 13 were produced by appellant Taufik as stated earlier from the compound of their bungalow at 156A Railway Lines 74 Sholapur
Articles at serial number 14 consist of 12 bore cartridges found in the house of accused Abdulla Mandolkar since acquitted
They were alleged to have been delivered by appellant Fakhruddin to accused Fateh Ahmed Phuleri since acquitted
The article at serial number 15 was the one sold to PW 4 Basanna by accused Chandrakant since acquitted
Appellant number 1 is the father of appellants 2 to 4
Accused Chandrakant and Fateh Ahmed both since acquitted were the servants of Fakhruddin working in the shop
Accused Abdula Mandolkar since acquitted was a relation of Fateh Ahmed
Police after investigation submitted charge sheet
Eventually the appellants and the three other above named co accused were committed to the court of Sessions for trial
The allegations against the appellants in substance were that they agreed to do the following illegal acts i to acquire and prepare explosives unauthorisedly and to possess and supply explosives for illegal purposes ii to acquire and possess sulphur unauthorisedly and to sell the same iii to acquire and possess and sell gun powder and cartridges in breach of the conditions of the licence granted under the Arms Act and Explosives Act iv to acquire and stock in clandestine godown and illegally sell potassium chlorate in breach of the conditions of the licence granted under the provisions of the Arms Act v to acquire without licence percussion caps and to sell them illegally and vi to acquire and posssess without licence poison and to sell the same illegally
The changes were also to the above effect
The appellants pleaded not guilty
In his statement under Section 342 of the Code of Criminal Procedure appellant Fakhruddin additionally stated that he alone managed the shop Ms MF Maniyar  Sons from which the incriminating substances were found
He admitted his presence at the place and at the time of the first raid on the 11th September He has also admitted the search and seizure of articles as per Exhibit 28
He has also admitted that potassium cyanide was purchased and possessed by him but he has pleaded that he was told that no licence was necessary for possessing potassium cyanide
Mr Lalit learned Advocate appeared for appellants No 1  2 and Mr Bhasme learned Advocate appeared for appellants 3  4
Learned counsel have not challenged the convictions and sentences of the appellants under Section 53b Section 3 read 75 with Section 251a and Section 30 of the Arms Act and under Section 61a 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
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 fourteen years to which fine may be added or with imprisonment for a terms which may extend to five years to which fine may be added 10
In order to bring home the offence under Section 5 of the Explosive Substances Act the prosecution has to prove i that the substance in question is explosive substance ii that the accused makes or knowingly has in his possession or under his control any explosive substance and iii that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object
The burden of proof of these ingredients is on the prosecution
The moment the prosecution has discharged that burden it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object if he takes that plea
Explosive substance has been defined in section 2 of the Explosive Substances Act
The definition is as follows 2
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 76 substance also any part of any such apparatus machine or implement Explosive substance has a broader and more comprehensive meaning than 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 loud noise tending to cause explosion  The Concise Oxford Dictionary
In the Explosives Act the terms explosive  has been defined as follows 4
In this Act unless there is something repugnant in the Definitions subject or context 1 explosive a means gunpowder nitro glycerine dynamite guncotton blasting powders fulminate of mercury or of other metals coloured fires and every other substance whether similar to those above mentioned or not used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect and b includes fog signals fireworks fuses rockets percussion caps detonators cartridges ammunition of all descriptions 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
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
It was argued by learned counsel that possession within the meaning of Section 5 of the Explosive Substances Act means 77 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 kg of the incriminating substance was sold to P W 4 by an employee of the firm
The detonators were produced by appellant No 3 from the premises of the Bungalow occupied by all the occupants
It cannot but therefore be held that the appellants were in conscious possession  of the substance seized
The notification dated 1st of April 1966 published by the Government of India Ministry of Works and Housing and Urban Development exhibit 65 reads as follows NOTIFICATION No 31265 PII IX In exercise of the powers conferred by Section 6 of the Indian 4 of 1884 and in supersession of the notification of the Government of India in the later Department of Labour No M 1217 dated the 9th February 1939 the Central Government is pleased to prohibit the manufacture possession and importation of any explosive consisting of or containing sulphur or sulphurate in admixture with chlorate or potassium or any other chlorate Provided that this prohibition shall not extend to the manufacture or possession of such explosive a in small quantities for scientific purpose b for the purpose of manufacturing heads of matches or c for use in toy amorces paper caps for toy pistols
Sd P Rajaratnam Under Secretary to the Government of India The appellants had no licence or authority to make or possess the explosive substances as required by the above Government notification
The licence possessed by them is dated 3131956 Exhibit 90 which was not in pursuance and in conformity of the aforesaid Government Notification
The possession of the explosive substances  by the appellants therefore were without any authority
78 15
Learned counsel for the appellants cited before us 1939 2 All E R 641 in support of his contention
The head note of the report reads Upon an indictment against an accused for knowingly having in his possession explosive substances the prosecution has to prove that the accused was in possession of an explosive substance within the Explosive Substances Act 1883 section 9 in circumstances giving rise to a reasonable presumption that possession was not for a lawful object
Proof of knowledge by the accused of the explosive nature of the substance is not essential nor need any chemical knowledge on the part of the accused be proved
 The appellants have also cited another English decision reported in 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 knew or atleast they shall be presumed to have known what these substances they were and for what purpose they were used
In fact when P W 4 Basanna asked for half k g of blasting powder appellants  servant accused Chandrakant immediately supplied the requisite powder to P W 4 from the shop
This evidence clearly establishes that the appellants did know the nature and character of the substance
In other words they knew that the substances in question were explosive substances
The courts below therefore were right in holding that an offence under Section 5 of the Explosive Substances Act was committed
79 16
Learned Counsel submitted that the evidence on record shows that appellant Fakhruddin alone acquired and possessed the substance in question
That was the plea of Fakhruddin
It also might be true that Fakhruddin also had acquired the substances but the evidence on record clearly shows that all the appellants were in possession and control of the substances in question
The submission of the appellants has no substance and all the four persons are liable for the offence
Now to turn to the conviction under Section 120B of the Penal Code
Section 120B provides 120B 1 Whoever is a party to a criminal conspiracy to commit an offence punishable    Criminal conspiracy  has been defined under Section 120A of the Penal Code as follows 120 A
When two or more persons agree to do or cause to be done 1 an illegal act or 2 an act which is not illegal by illegal means such an agreement is designated a criminal conspiracy Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some tact besides the agreement is done by one or more parties to such agreement in pursuance thereof
Explanation
It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object The contention of learned counsel is that there is no evidence of agreement of the appellants to do an illegal act
It is true that there is no evidence of any express agreement between the appellants to do or cause to be done the illegal act
For an offence under section 120B the prosecution need not necessarily prove that the perpetrators expressly agreed to do 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 80 long time leads to the inference that they agreed to do andor 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
Mr Lalit additionally submitted that appellant No 2 Rizwan did not do any overt act
He was a mere partner of Ms MF 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
MF 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
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 merely assisting him
We are told that appellant No 2 Rizwan has already served 812 months of imprisonment and appellants 3 and 4 Usman and Taufik six months of imprisonment each
In our view ends of justice will be met if the sentences of imprisonment are reduced to the periods already undergone by the three living appellants
In addition to the sentence of imprisonment there was a fine of Rs 1000 each for the offence under Section 5 of the Explosive Substances Act and also sentence of fine against the appellants under Section 53 b of the and under Section 30 of the Arms Act
In our opinion ends of justice will be met if the fine under Section 5 of the Explosives Substances Act is remitted in case of all the appellants including appellant No 1 Fakhruddin
With the above modification in the sentence the appeals are dismissed
section R Appeals dismissed


Summary:
Government of India Ministry of Works  Housing and Urban Development Notification No 31265 PIIIX dated 1st April 1966 requiring a licence to make or possess the explosive substances Possession without such a licence of the explosive substances is unauthorised
Penal Code section 120B Criminal conspiracy Nature of proof
Fakhruddin the owner of the shop known as M F Maniyar  Sons Sholapur along with his three sons was tried for offences under section 120B of the Penal Code section 5 of the Explosive Substances Act section 3 read with section 25 of the Arms Act and section 61a of the Poisons Act
All the four were convicted and sentenced by the Sessions Judge Sholapur to sentences of different durations under these Acts and also to fine
The substantive sentences were directed to run concurrently
The appeals before the High Court having failed the appellants have come in appeal by special leave to this Court
Dismissing the appeals the Court while remitting the sentences of fine and reducing the sentences of imprisonment to the periods already undergone by the three living appellants  HELD1 1
In order to bring home the offence under section 5 of the Explosive Substances Act the prosecution has to prove i that the substance in question is explosive substance ii that the accused makes or knowingly has in his possession or under his control any explosive substance and iii that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object
75D G 1 2
The burden of proof of the ingredients of section 5 of the Explosive Substances Act is on the prosecution
The moment prosecution has discharged that burden it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object if he takes that plea
75F G 2
On a consideration of the evidence of the Explosive Inspector and other evidence the substances in question which were recovered from the appe 69 llants were explosive substances within the definition of that expression in section 2 of the Explosive Substances Act
76F G 3 1
The factum of the recovery of the said articles from the possession of appellant No 1 and also the evidence that his three sons appellants 2 to 4 who were managing and running the shop of M F Maniyar and Sons from which the incriminating substances were seized clearly show that all of them were guilty
76 G H 77A 3 2
The several substances seized not being minute or small in quantity make it clear that the appellants were in conscious possession of the substances seized within the meaning of section 5 of the Explosive Substances Act
77A B 3 3
The possession of the explosive substances by the appellants were without any authority since the appellants had no licence or authority to make or possess the explosive substances as required by the Government of India
Ministry of Works  Housing and Urban notification dated 1st April 1966
The licence possessed by them is dated 31 3 1956 which was not in pursuance and in conformity of the said Government notification
77G H 3 4
The knowledge that the particular substance is an explosive substance depends on different circumstances and varies from person to person
Unlike an ignorant man or a child coming across an explosive substance who picks it up out of curiosity 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 as the appellant had been dealing with the substance in question for long time they certainly knew or at least they shall be presumed to have known what those substances were and for what purpose they were used
The said presumption is further fortified from the fact that a half KG of blasting powder potassium cyanide was sold to the decoy witness by the appellants
78E F G 4
For an offence under section 120B of the Penal Code the prosecution need not necessarily prove that the perpetraters expressly agreed to do 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 andor cause to be done the said illegal act for without such an agreement the act could not have been done for such a long time79G H 80A