Tarkeshwar Jaiswal vs The State Of Jharkhand
2023 Latest Caselaw 2104 Jhar

                          1


    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             ------
             Cr. Appeal (DB) No.202 of 2023
                             ------
Tarkeshwar Jaiswal, Aged about 54 years, son of Late Shyamlal Jaiswal
                                         ....    ....            Appellant
                              Versus

The State of Jharkhand                 ....         ....     Respondent

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
               HON'BLE MR. JUSTICE SUBHASH CHAND
                          ------
       For the Appellant    : Mr. Gautam Kumar, Advocate
       For the State        : Mr. Vineet Kr. Vaishistha, Spl. P.P.
                          ------
             th
06/Dated:19 May,2023
Per 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 Substance Act.

7. Learned Spl. P.P., on the basis of the aforesaid fact

also submits that it is not a fit case where the privilege of

anticipatory bail may be granted.

8. We have heard the learned counsel for the parties

and gone through the FIR as also the finding recorded by

the learned trial Court while rejecting the anticipatory bail

application as also the case diary.

9. As would appear from the FIR that the appellant is

named therein and has been found to be involved in

carrying of the illegal mining with the aid of the explosive

substance.

It appears from the seizure memo that the following

explosive substances have been recovered:-

"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".

It appears from paragraph-14 of the supplementary

case diary, wherein, the recovery which has been shown,

which is the report after having been obtained from the

Forensic Science Laboratory, Ranchi, Jharkhand which

was sent through letter no.3682/go. Dated 28.10.2022,

wherefrom it is evident that after the chemical analysis of

the material recovered, it has been found to be

Ammonium nitrate, Aluminium and Sulphur along with

Pottasium chlorate which has been detected from the

"small plastic dibba marked A"

The expert opinion is that the contents of the "small

plastic dibba marked A" are the remnants of explosive

substance. It has further been opined that the ammonium

nitrate is mostly used in high explosive mixture of

ammonium nitrate fuel oil (ANFO), slurry explosive,

emulsion explosive, etc., for ready reference, report of the

Forensic Science Laboratory, Ranchi, Jharkhand as

contained under paragraph-14 of the supplementary case

diary, is being referred as under:-

"Result of Examination(s)

On the basis of chemical analysis,

Ammonium nitrate, Aluminium and

Sulphur along with Potassium chlorate

were detected in the extract of the content

of the "small plastic dibba Marked A".

described above.

Therefore, it is concluded that the

content of the "small plastic dibba Market

A" are the remnants of explosive

substance.

Ammonium nitrate is mostly used in high

explosive mixture of Ammonium nitrate

fuel oil (ANFO), slurry explosive, emulsion

explosive etc."

This Court, thus, is of the view that material which

has been recovered, is explosive substance as per the

report of the expert opinion and there is no reason to take

different view from the opinion of experts.

10. This Court has further found from paragraph-10 of

the case diary which contains confessional statement of

the co-accused, namely, Dev Singh, who has been

apprehended from the place, wherefrom the material has

been recovered. He has confessed that he along with his

brother, namely, Raj Kumar Singh and the appellant-

Tarkeshwar Jaiswal were involved in carrying illegal

mining.

It has further been confessed that his elder brother

Raj Kumar Singh and the appellant, namely, Tarkeshwar

Jaiswal were actively involved in the illegal mining

particularly for the purpose of breaking of stone, they

used to procure the explosive substance and the seized

article is the same which was procured by the elder

brother, Raj Kumar Singh and the appellant-Tarkeshwar

Jaiswal.

11. Learned counsel for the appellant has mainly based

his argument that the article which has been recovered

cannot be construed to be explosive substance and

hence, the ingredients of Section 3/4 of the Explosive

Substance Act, are not applicable.

12. But we are not in agreement with the aforesaid

submission at this stage, since, the specific opinion of

experts is there that the seized articles are the High

explosive substance as would appear from the opinion of

the experts as quoted and referred hereinabove.

Further, the co-accused, namely, Dev Singh who

happens to be brother of one another co-accused

persons, namely, Raj Kumar Singh has confessed in his

confession about the involvement of the appellant along

with his elder brother and the article which was seized

wherefrom he was apprehended.

The said Dev Singh, co-accused person, who

happens to be younger brother of Raj Kumar Singh, has

given his disclosure by way of confession disclosing the

name of this appellant also.

13. Thus, at this stage, we are of the view that it is not a

fit case to extend the privilege of anticipatory bail to the

appellant.

14. Accordingly, we find no reason to interfere with the

impugned order.

15. In view thereof, the instant appeal fails and is,

dismissed.

                              (Sujit Narayan Prasad, J.)



  Rohit/-A.F.R.                (Subhash Chand, J.)