1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.434 of 2009 IN Sessions Case No.714 of 2008 Al Hadi Badar Naseer Mohammed .. .. Appellant/ Accused Versus State of Maharashtra .. .. Respondents (Sahar Police Station L.A.C. No.930/2008) Mr.A. Majeed Memon for Appellant. Mrs.A.A. Mane, APP for State. ----- CORAM : SMT.ROSHAN DALVI, JJ. Dated : 19TH DECEMBER, 2009 JUDGMENT : 1.The Appellant-accused has challenged the judgment and order of the learned 7th Ad-hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case No.714 of 2008, under which he has been convicted of offence under Section 5 of the Explosive Substances Act 1908 (the Act) and sentenced to suffer rigorous imprisonment of 5 years, pay a fine of Rs.500/- and in default, to suffer 2 rigorous imprisonment for 1 month. 2.The Appellant-accused has also been convicted under Rule 3 of the Air Craft (Carriage of Dangerous Goods) Rules, 2003, punishable under Section 10 of the Aircraft Act, 1934 and sentenced to suffer rigorous imprisonment for 6 months and pay a fine of Rs.500/- and in default, to suffer imprisonment for 1 month. 3.The accused is stated to be a national of State of Oman. He was admittedly in Mumbai and on 23.7.2008. When the incident took place he was to board the flight for Muscat. At about 16.50 hours his baggage was kept in the baggage machine at Chhatrapati Shivaji International Airport, Sahar, Mumbai. Several sutali bombs, anars, peacock crackers and other dangerous substances were found sealed in his baggage in two pairs of footwear (4 chapples)amongst clothes. 4.It is the prosecution case that those are explosive substances and were dangerous to life and property and would cause serious injury to them. The accused is charged with endangering life and causing injuries to life and property and prosecuted under Sections 4 and 5 of the Act. Since he was carrying substances which were dangerous goods, he is also charged and prosecuted under Rule 3 of the Aircraft (Carriage of Dangerous 3 Goods) Rules, 2003 and for having committed the offence under Section 10 of the Aircraft Act, 1934. Based upon such charges, the prosecution has examined 8 witnesses. 5.P.W.1 is the Security Officer, serving in Air India at Chatrapati Shivaji International Airport, Sahar, since 1982. He was having a duty of scanning of baggages of the passengers of the Oman flight. It is his evidence that when the passenger came and kept his bag on the X- ray machine for scanning, he found incriminating articles. He kept the bag on the table and asked the passenger to open the bag. The passenger opened the bag. He found sutali bomb in one black colour plastic bag, two pairs of chappals, clothes and Oman Air ticket. This was less than the quantity of explosives that he saw in the X-ray image and hence he again checked the bag. Nothing was found. So he kept the box of chappals on the X-ray screen. He found explosives in the image of the chappals. He stopped the passenger and informed his superiors. The superiors called the Police from Sahar Police Station. The Police called the Panchas. The soles of the chappals were opened in the presence of the panchas. After opening the chappals, explosives were found in the sole of the chappals. The explosives were seized and he deposed that each chappal had crackers, anars, small crackers, sutali bomb, etc. These articles were seized and the 4 panchanama was made. All the explosive substances found in the bag were produced in the Court and have been marked Articles A to E. The chappals have been marked Articles F to I. The chappals box and his clothes have been marked Articles J and K. He lodged an FIR. In his cross examination he disputed the fact that the passenger was an Oman national and could not speak Hindi, English and other languages. He did not feel any abnormality in his behaviour. He disputed the suggestion that the accused was a patient of affective disorder depressive type and having suicidal tendency. He has been cross-examined about the passport, ID card and ticket of the passenger, but with which this case is not concerned. 6.P.W.2 is the panch in whose presence the soles of the chappals were opened and the various explosive substances like crackers anar, suttali bomb and other explosives were seized. P.W.2 has proved by direct evidence the execution of the panchanama, which is marked Exhibit-20. He was at the Airport until 10 p.m. He has identified Articles A to I in Court. He has identified the accused in Court. His cross-examination shows that he could not state which crackers were found and kept in which packet. That is natural. He has been asked the usual questions about availability of the seized articles in the market and the special reason to 5 identify them. 7.P.W.3 is a businessman dealing in Mobile SIM cards. His examination-in-chief shows that the accused purchased a SIM card from him. He was a heighted (tall) person. P.W.3 has deposed that he could identify the accused because of such height. He has also deposed in his cross examination that he had talked to the accused in Hindi. He has refuted the suggestion that the accused had not come to his shop or that he had identified him on the say of P.P. 8.P.W.4 is the person who sold the chappals to the accused. He has identified the accused in Court. His deposition shows that the accused had gone to purchase the chappals. He purchased 2 pairs of chappals for Rs. 200/-. The accused asked him to fill up the crackers in the sole of the chappals. P.W.4 refused, as he was not the cobbler, and sent him to a cobbler nearby. His cross-examination shows that he had no special reason for deposing against the accused. 9.P.W.6 is the cobbler, to whom the accused was sent. He has deposed that two persons had come to him for stitching the chappals. He was told to fill up the crackers in the sole of the chappals by opening the stitches. He filled up the crackers in the sole of the 6 chappals. He identified the accused, the crackers as well as chappals upon being shown Articles A to I. His cross-examination is upon the premise that many customers come to his shop, there was nothing identifiable about the accused or about the crackers and the chappals. 10.P.W.5 is the Police Officer, who was called upon the baggage check of the accused having been done at Sahar International Airport. He had called the panch. He corroborated the evidence of the Security Officer, P.W. 1 and panch, P.W.2, to state what had happened during the exercise of making the panchanama. His deposition shows that the stitches of the chappals were removed and the crackers in the sole of the chappals were found. These were 30 sutali bombs, 10 anars and 10 small crackers. His cross-examination shows that he had made entries in the Station Diary upon receipt of the information before he reached the spot in 5 months. He could not tell how many bags of crackers were prepared. These were available in the market. 11.P.W.7 is the Investigating Officer (IO) who investigated the case from the Sahar Police Station. He served as Police Inspector. He commenced his investigation from 24.7.2008, a day after the accused was apprehended at the Airport. The case was 7 registered and the panchanama was got prepared. Upon interrogation of the accused, he was taken by the accused to the shopkeeper and the cobbler. His cross- examination shows that he had not obtained sanction under Section 7 of the Act. This was, though he had addressed letters to the requisite Authority on 11.12.2008 and 18.12.2008. His cross-examination shows the receipt of the letter from the Consulate General of the Sultanate of Oman, Mumbai, along with the medical report of a hospital, of the Sultanate of Oman dated 31.7.2008 and 29.7.2008, respectively during the course of investigation. The letter and the medical report received by him, have been marked Exhibits 30 and 31 in evidence. His cross-examination further shows that he had shown the accused to a Doctor as per his compliant. The Doctor s report is not produced by the prosecution. The accused has also not called upon the prosecution also to produce such reports. His cross-examination further shows that he had sent the incriminating articles to the Chemical Analyzer (CA) and they have been produced under the seal of the CA. The report of the CA had been produced in the evidence, Exhibit-26. 12.The Chemical Analyzer s report shows that 4 chappals had traces of potassium and nitrate radicals. Sutali bombs and crackers had aluminum, barium, strontium, calcium nitrate, nitrite, chlorate radicals, elemental 8 sulfur and charcoal. Charcoal was also detected on one of the sutali bombs along with the aforesaid chemicals. 13.So much evidence was recorded by the learned Sessions Judge till 6.3.2009. 14.Upon such evidence, the statement under Section 313 of the Criminal Procedure Code (Cr.P.C.) of the accused came to be recorded on 12th March 2009. His case is only of denial. 15.On 9th March 2009, the consent of the Competent Authority (Central Government) under the Explosive Substances Act was sought to be obtained by the I.O. 16.Thereafter on 19th March 2009, the evidence of the competent Authority was led. He is an IAS Officer. He admitted receipt of the 2 letters of the IO on 11th December 2008 and 18th December 2008 along with the CA report, FIR, spot and seizure panchanamas. He granted his consent to prosecute the accused upon going through those documents on 9th March 2009 under Section 7 of the Act under the power vested in him as the District Magistrate. His evidence shows that from the aforesaid documents and other papers, he concluded that the accused was found with explosive substances being sutali bombs, anars and other crackers since the CA 9 report had confirmed those to be explosive substances. 17.His cross-examination shows that he had not given his consent for 3 months, due to he having several duties. He refuted the suggestion that his consent order was prepared by the IO and he mechanically signed it. This evidence has been put to the accused on 19th March 2009 when the further statement of the accused under Section 313 of the Cr.P.C again came to be recorded. His case is of denial. 18.It is based upon such evidence that the learned Judge has convicted the accused of carrying explosive substances. 19.From the aforesaid evidence the fact of the accused having gone to the Airport to board the flight to Muscat/Oman where his baggage was searched and found to be having incriminating materials which were seized under panchanama and he came to be arrested is clearly made out. The fact that the aforesaid incriminating materials were found stitched into the sole of his chappals is also made out. The cross examination of the security officer P.W.1 who found the incriminating articles, informed his superior, called the police, prepared the panchanama and seized the articles is not at all dishevelled in his cross examination. Only 2 10 cases are sought to be put to the witness. The first is that he did not understand English or Hindi, which case is refuted by P.W.1. 20.His evidence is corroborated by P.Ws.2 and 5. 21.P.W.5, who was an officer working at Sahar Police Station, was called and he had called the panchas. The panchanama was executed in his presence. He has also deposed about the articles seized under the panchanama. He made the relevant station diary entry and had arrested the accused on the same day. His cross examination has also not disrupted his evidence in the least. 22.P.W.2 is the panch who was called by P.W.5. He has proved the panchanama Exhibit-20. The seizure of the articles shows articles A to I being seized from one bag which came to be identified. That bag which was of red colour, has also been identified by the panch as Exhibit-L. Even his cross examination has yielded nothing though he was at the Airport until 10 p.m. 23.P.W.4 and 6 are the 2 independent witnesses who sold chappals to the accused and who stitched the crackers in the chappals. P.W.3 had sold a sim card to the accused. 11 24.All these witnesses have identified the accused in Court. The transaction which they were respectively concerned with was a unique transaction involving a passenger who had to board a flight and who was apprehended with sutali-bomb and fire crackers stitched into the sole of his chappals kept in a bag, which was to be carried as his hand baggage during the flight. The two independent witnesses are the persons who came upon a unique customer who instructed them to stitch sutali-bomb and fire crackers into the soles of the chappals he purchased. It must be remembered that P.W.3 has deposed that the accused was a heighted person. 25.The identification by all these witnesses is, therefore, of a unique incident which they are not likely to forget. The incident took place on 23rd July 2008. The evidence has been recorded within a few months. The identification of the accused is perfect and complete. The cross examination of each of these witnesses, to show that there was no particular reason why they identified the accused, is immaterial. Though the accused may not have looked particularly distinctive to identify, the incident which each of these witnesses experienced was memorable(one which cannot be erased from memory) if only for its uniqueness. 12 26.All that is to be seen is whether a sutali-bomb and other firecrackers were explosive substances having the propensity to cause damage and harm to the property and person in the circumstances under which they were carried and were to be kept. They were carried stitched in the chappals and therefore, specifically by the act of the accused, admitted to be concealed. They were in the handbag of the accused, which was to pass security at the Airport. Had they been passed they would have been in the passenger hold of the aircraft. They would be in the custody, possession, power and control of the accused. Only he knew the fact of the sutali-bombs and other fire crackers being in the luggage hold where the handbags of all the passengers including the accused were to be kept. Only the accused could have had access to them and could have used or misused them during the flight. Under Section 2(a)of the Explosive Substances Act 1908(the Act) an explosive substance is 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.... Section 4 of the Act imputes liability for any 13 attempt to cause explosion by possession of such substances, it runs thus: 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)... (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, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished, (i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (ii) ... The punishment for such offence is prescribed in Section 5 which runs thus: 5. Punishment for making or possessing explosives under suspicious circumstances  Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable 14 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 punished, - (a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine; (b)... 27.The C.A s report shows various chemicals including potassium and nitrate radicals, sulphur and charcoal found in the sutali bomb and fire crackers. It is common knowledge that these chemicals and substances in the crackers burst upon being ignited with a match- stick or a lighter. This would cause or aid an explosion. If they are ignited the sutali-bomb upon bursting in a aircraft filled with passengers would cause harm, damage and injury to some or all of them depending upon its potency. The anar and other crackers, if ignited, would shower the chemicals which are ignited. In a situation such as an aircraft which holds a number of passengers seated closely against one another such an act would also cause damage, harm and injury because such substances have the propensity to explode upon ignition by ordinary means such as a match-stick or a lighter. Judicial notice is required to be taken of the fact that such sutali bombs or crackers can be ignited only in open spaces. Even in 15 open spaces they are known to have caused injuries to children or nearby persons upon they bursting. It is also common knowledge that the person who ignites sutali-bomb or fire crackers invariably runs behind few steps moments before it is expected to burst. Such a scenario could never have been contemplated in an aircraft had the sutali-bomb and fire crackers burst upon being ignited by the mischief or misdemeanor of the accused. The fact that he carried these bombs concealed in his chappals which are specially purchased only for such carriage from the shopkeeper P.W.4 and which he got stitched from the cobbler P.W.6 and the further fact that he had not kept those explosive substances in the check-in baggage, but in the hand baggage, shows his intention of committing the criminal act of endangering life and causing injury to property by carrying such explosive substances punishable under Section 5(a) of the Act. 28.Mr. Memon argued that these were children s crackers which did not even need licence for purchase. This, ofcourse, completely overlooks the most material aspect that the accused, a 30 year old adult, who is not a child, sought to take the sutali bombs and crackers stitched in his chappals in an aircraft and not in the open where children play with the crackers. 16 29.Mr.Memon oversimplified the act by stating, presumably upon instructions in Appeal, that the sutali bomb and fire crackers are banned articles in his native land, the Sultanate of Oman and hence he contends, the accused may have got them stitched and concealed. There is no such case made out by the accused in his statement under Section 313 of the Cr.P.C. Evidence has shown that the accused committed the positive act of admittedly concealing the substances he took with him in his flight as his hand baggage. The accused is stated to have carried them to give his children. That fact shows the accused trying to circumvent and evade the laws of his Country. Oman is an alien friend of India. Indian Courts are duty bound and always uphold laws of friendly countries. The Court, therefore, would be loathe to even entertain a suggestion that an act which is admitted to be violative of the laws of the Sultanate of Oman can be allowed to pass. In fact an argument of the kind lends itself to the taint of irresponsibility and must be eshewed. The accused is indeed not imbecile enough to try to ward off arm of the law of his land. 30.Mr. Memon contended that the accused did not even know English or Hindi. He sought to substantiate that fact by showing that the questions put in the first 17 statement of the accused recorded under Section 313 of the Cr.P.C has been interpreted to him by the Public Relations Officer of Oman Consulate in Mumbai. The second 313 statement recorded on 19th March 2009 is not so interpreted, but yet answered by him to the Judge who signed the statement in accordance with legal procedure. 31.The interpretation to the accused of a greater part of 313 statement may not itself show his complete lack of knowledge of Hindi and English languages. He is born national of Oman, who may not understand fully the concept of the trial in his second or third language. However, the accused has signed the statement in English as can be seen from his rather illegible signature. At least it is clear that his signature is not in Arabic. The evidence of P.W.1 shows he having refuted the case put to him that the accused did not know English or Hindi properly. The evidence of P.W.3 shows that the accused had talked to him in Hindi when he purchased SIM card from him. The contention to shrug the consequences of the investigation and trial upon his ignorance of the law comes to nothing. 32.Mr.Memon rightly argued that he did not want to go into the merits of the case. He requested the Court to 18 take up the Appeal out of turn only upon the question of lack of consent required to try the accused and the fact that he was an imbecile national of the Sultanate of Oman who could be deported to that country. Mr. Memon argued that prior sanction of the competent authority under the act was required to prosecute the accused under Section 7 of the Act. Section 7 of the Act runs thus: 7.Restriction on trial of offences  No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Central Government vide Amendment of 1-2-2002. 33.The Section does not require sanction, but consent. This consent is not prior consent. 34.Consent as defined in BLACK s Law Dictionary Eighth Edition page 323 and Advanced Law Lexicon by P. Ramanatha Iyer Third Edition at page 973 is thus: Consent is an agreement, approval or permission as to some act or purpose specially given voluntarily by a competent person; legal effective ascent. 35.It is, therefore, an act of a competent authority actually approving an action taken upon being in 19 agreement with the action or granting permission for any act to be done or done. 36.Sanction as shown in the aforesaid digest at page 4221 is: Express authorization, permission or recognition e.g., of an action, custom or institution etc., under Section 132(1)(a) Cr.P.C. 1973. In the case of RE La Warr, 16 Chancery Division 587x. It further shows that sanction not only means prior approval; it also means ratification. 37.Consequently,if prior sanction is required the legislation makes an express provision for prior sanction, in view of the ex-post facto sanction which can be granted under several legislations. 38.Mr. Memon contended that as per the requirement of sanction under Section 7 of the Act the trial could not have commenced until the sanction was obtained and the entire trial is vitiated since it was commenced before the sanction was granted, the charge was framed and the evidence of P.W.1 to 7 came to be recorded before the sanction was granted. He submitted a copy of a commentary from a book on the Act without any 20 preceedents. The prosecution had not obtained sanction prior to the trial. In the cross examination of the P.W.7,