Dayal Puri vs The State Of M.P.
2023 Latest Caselaw 6090 MP

                                                                               1
                                                IN THE HIGH COURT OF MADHYA PRADESH
                                                              AT INDORE
                                                                      BEFORE
                                                      HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                                    ON THE 17 th OF APRIL, 2023
                                                              CRIMINAL APPEAL No. 1243 of 1999

                                            BETWEEN:-
                                            DAYAL PURI S/O MANGUPURI GOSWAMI, AGED ABOUT
                                            30 YEARS, POLICE STATION Y.D. NAGAR, MANDSAUR
                                            (MADHYA PRADESH)

                                                                                                             .....APPELLANT
                                            (BY SHRI R.C. GANGARE, LEARNED COUNSEL)

                                            AND
                                            THE STATE OF M.P. THROUGH POLICE STATION Y.D.
                                            NAGAR, MANDSAUR (MADHYA PRADESH)

                                                                                                           .....RESPONDENT
                                            (BY SHRI TARUN PAGARE, LEARNED GOVT. ADVOCATE)

                                                  Th is appeal coming on for hearing this day, t h e court passed the
                                            following:
                                                                                ORDER

1) The present appeal is filed under Section 374(2) of the Code of

Criminal Procedure being aggrieved by the order of conviction and sentence dated 16.09.1999 whereby the appellant has been convicted under Section 5 of Exclusive Substances Act, 1908 (hereinafter for short the Act) and sentenced to RI for 2 years and fine amount of Rs.1000/-, in default of payment of fine, 2 months additional RI.

2) The facts of the case are that it is alleged that on 26.4.1997 during the Signature Not VerifiedDigitally signed by

course of patrolling, ASI Shankar Rao Ghongade found one Tractor No. SAN SOUMYA RANJAN DALAI Date: 2023.04.21 18:09:03 IST

M.K.U.-5822 standing on Sanjeet Road near Abhinandan Colony, Mandsaur.

The police official also found compressor machine installed on the said tractor. It is further alleged that on checking, he found 104 explosive totes and 90 detonators from the dicky of the tractor. The appellant was prosecuted for the said offence and sentenced as mentioned hereinabove.

3) Counsel for the appellant submitted that the entire trial is vitiated because of the non-sanction by the Central Government as per the provisions of Section 7 of the Act. It is submitted that the incident had taken place in the year 1997 and at the relevant point of time, the provisions of Section 7 provides that no Court shall proceed to the trial of any person for an offence under this Act except with the consent of the Central Govt. The provision of Section 7

has been amended by Act No. 54/2001 whereby the word Central Government has been substituted by the word District Magistrate. However, the amended provisions would not apply to the present case because the incident had taken place in the year 1997 and the amendment came into force from 01.01.2002. Upon perusal of Ex.P/8, it is evident that the permission for trial was granted by District Magistrate, Mandsaur by order dated 11.07.1997. There is no permission by the Central Government.

4) Counsel for the appellant submits that in absence of consent of the Central Government, the entire trial has vitiated in law and, therefore, the conviction is liable to be set aside.

5) Counsel for the State supported the order of conviction and sentence. However, he could not produce any document to show that there was any consent of the Central Government as required under Section 7 of the Act, 1908.

Signature Not VerifiedDigitally signed by
  SAN                 SOUMYA RANJAN
                      DALAI
                      Date: 2023.04.21
                      18:09:03 IST                  6) Counsel for the appellant has relied upon the judgment delivered by

Andhra Pradesh High Court in the case of Ahmed Bin Salim and another Vs.

State of Andhra Pradesh reported in 1993(3) Crime 788, in which it has been held that no Court can proceed to trial on any offender for offence under the Explosive Substances Act without the sanction of the Central Government. Since admittedly, no sanction from the Central Government, as required under section 7 of the Explosive Substances Act, 1908, has been obtained or produced by the prosecution. Although w.e.f 01/02/2002 by the Act no. 52 of 2001, the word “ District Magistrate has been substituted for the Central Government in section 7 of the Explosive Substances Act, but in the instant case, the offence has occurred in the year 1997, therefore, the provision, which was effected from 01/01/2002 by the Act no. 52 of 2001, is not applicable in this matter and as per the earlier provision, sanction from the Central Government is necessary. As per the law laid down by Kerla High Court in case of Ahmed Bin Salim (supra), in absence of prior sanction or consent of the Central Government, the appellants are entitled for acquittal. The trial Court below has grossly erred in completely ignoring the fact of prior sanction of the Central Government, therefore, the impugned judgment of the trial Court cannot be sustained.

7) Considering all the facts and circumstances of the case, aforesaid case law and evidence available on record, there is no hesitation to say that the prosecution has failed to prove the charge against both the appellant beyond

reasonable doubts, therefore, present criminal appeal is allowed and the conviction and the sentence under section 5 of the Explosive Substances Act, 1908 is hereby set aside and the appellant is acquitted from the charge under

Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN section 5 of the Explosive Substances Act, 1908. The appellant is on bail, DALAI Date: 2023.04.21 18:09:03 IST therefore, his bail bond stands discharged. The fine amount, if any, deposited,

be refunded to the appellant. Disposal of the property shall as per the order of the trial Court.

8) In light of the aforesaid discussions, present Criminal Appeal is allowed and disposed off.

(VIJAY KUMAR SHUKLA) JUDGE soumya

Signature Not Verified VerifiedDigitally Digitally signed by SAN SOUMYA RANJAN DALAI Date: 2023.04.21 18:09:03 IST