Mohd. Usman v. State of Bihar

Sikri, J. This appeal by s~ial leave is directed against the judgment of the fatna High Court allowing the appeal filed by the State Govemmept and convicting the appellant, Mohd. Usman, under s. 5(3)(a) of the Indian Explosives Act. 1884 (IV of 1884 )-hereinafter referred to as the Act-and senten-cing him to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 2,000, in default to undergo rigorous imprisonment for a further period of six months. The High Court, however, agreed with the Magistrate that the appellant could not be held guilty under s. 304A, IPC. The High Court did not find the two other accused persons, Abdul Rahman and Abdul Aziz, guilty, and State appeals against them were dismiss.. ed.

The prosecution c;ise, in brief, is that an explosion occurred in appellant's factory at Matkuria, PS Dhanbad, on April 28, 1960. As a result of the explosion Kashi Bhakta, Gobardhan Bhokta and Mohan Bour died. On that day, the appellant, who manufactures fireworks, had allowed minors (under 16 years of age), viz., Kashi Bhokta, Guhi Bhokta Gobardhan .and Subhas Chamar to work in the man11facture of fireworks, thus oOiltra-vening r. 16 of the Explosives Rules, 194~hereinafter referred to as the Rules-made under the Act, and had thereby commit-ted an offence punishable under s. 5 ( 3 )(a) of the Act. The High Court, disagreein~ with the Magistrate .who tried the case, held that "the three mlnor boys, Kashi, Guhi and Subhas, were employed and Gobardhan, in any event, was allowed to enter the premises licensed under the Rules for manufacture of ex-plosives" in contravention of r. 16, anu convicted the appellant as already stated.

Section 5 ( 3) of the Act reads thus:

"Any person contravening the rules made under this section shall lbe punishable-

(a) if he imports or manufactures any explosive in

such contraventibn, with . imp$nment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both;

( b) if he possesses, uses, sells or transports any

explosive in such contravention with imprison-ment .for a term w.hich may extend tc two years, or with fine which may extend to three thousand rupees, or with both; and.

(c) in any other case, with fine which may extend

to one thousand rupees."

Rule 16 of the Explosives Rules provides:

"16. Children and intoxic~ied persons-No child under 16 years of age and no person who is in a state of intoxication shall be employed on the loading, un-loading or •transport of explosives, or be employed in or allowed to enter any premises licensed under these rules."

430 SUPRBMB ~T llBPO&TS (1968) 3 S.CR.

The first question which arises is whether every breach of r. 16 falls under s. 5(3)(a) of the A<:t. In our opinion, the answer is in the negative. It will be. noticed thai cl. (a) of s. 5 (3) deals with a ~n who imports or manufactures in con-travention of the; Rules; cl. (b) deals with a person who possesses, uses, sells or transports any explosive in contravention of the Rules; and cl. (c) deals wtth contraventions of the Rules in other cases. It seems to us that the scheme of this sul>section is to divide the contravention of the Rules into three categOries. In the first category fall rules which a person must observe while he imports or manufactures. · In other words, rules relatable to the import or manufacture of exp!OsiVes would fall in the first category. For example, clause 11 of the licence issued to the appcllant provides: ·

"Not more than four persons shall be allowed at any one time in any one building or tent in which the explosive is being manufactured and only persons actu-ally employed in manufacturing or superintending manufacture shall be allowed iDsiile the place of manufacture."

Clause 12 of the Licence provides:

"No iron or steel implements shall be used in the manufacture. OnJ.y copper gun-methl or wooden tools are permissible."

N<>W, if the appellant had infringed the provisions of these clauses it could be said that the contravenuon would fall under cl. (a) of s. 5(3). We may mention that r. 81 provides that "no explosive shall be manufactured, possessed, used or sold except under and in accordance with the conditions of a licence granted under these rules", and a breach of the conditions would be contravention of r. 81. Bui su~ the appellant had con-travened clause 2 of the licence-his licence is for the manu-facture, possession and sal~ . of 25 pounds of fireworks-which prescribes the modes in which the explosives shall be kept in the premises, i.e. "(a) in a building substantially constructed of brick-stone or concrete or in a securely constructed fire-proof safe; or (b) in an excavation formed in solid rock or earth .... ", he would be g_uilty under cl. (b) of s. 5(3) and not cl. (a) of s. 5(3). Similarly, a contravention of clau•e 18. which provides ihat "all sales of explosives under this licence must be effected on the premises described on the face of the licence. and an explosive shall not be sold to any person under the age of 16 years" would fall under cl. (b) of s. 5(3).

The learned counsel for the appellant contends that on the facts found by the High Court the conviction of the appellant under cl. (a) of s. 5(3) cannot be sustained. He says that there is no finding or evidence that the four minors were engaged to manufacture or were taking part in the manufacture of fire-works. We have gone through the evidence and we find that no witness states that these minor boys were employed by the al'pellant to manufacture fireworks. Subhas Chamar, P.W. 1, says that he "was working in' the workshop of explosives at Matkuria owned by Usmap .... We were working in the normal manner and in the same place at the time of occurrence." Puran Bhokta, P .W. 2, father of Kashi and Gobardhan, says that all his sons "worked in the explosive workshop of Matkuria owned by Usman." He does not enlighten us about the nature of work done by his sons. Guhl Bhokta, P.W. 8, only states that "about 18 months ago, on a Thursday, I was working in the explosive shop in village Matkuria under the supervision of Rahman accused ...• " There is no other evidence bearing on this point. From this evidence it cannot be definitely inferred that the four minors were actually employed in the manufacture of explosives on April 28, 1960. In fact, there is no evidence at all that any fireworks were being manufactured that day. It was for the prosecution to prove all the ingredients of the offence, and. s. 106 of the Evidence Act does not, as contended by the learned coun-sel for the State, absolve the prosecution from proving its case.

There is no doubt that tlif,te has been a contravention of r. 16, inasmuch as the four minors were employed in or allowed to enter the premises licensed under the Rules. But r. 16 is a comprehensive rule and applies to employment of minors in the premises for various purposes--manufacture and sale of explosives it would also apply to employment of a minor to sweep floors and keep the premises clean.

If a minor is employed to keep clean the premises, would this contravention fall under cl. (a), cl. (b) or cl. (c) of s. 5(3)? It seems to us that if cl. (a) and cl. (b) are read widely so as to cover every activity which might take place on the premfaes, cl. (c) would be rendered redundant. This is not a permissible way of reading statutes. Ii will be noticed that the legislature regards an offence under cl. (a) of s. 5 ( 3) to be more serious than one under cl. (b) and an offence under cl. (b) to be more serious than one under cl. (c). Further, the rules are many; some regulate minor matters, and it would be absurd to treat the breach of every rule to be a breach of cl. (a) or cl. (b).

In our opinion, if there is a breach of a rule, it has to be ascertained in each case whether the rule or part of it relates to ac~ivities mentioned in cl. (a) of s. 5(3) or cl. (b) of s. 5(3). It JI does not relate to any of the activities mentioned in cl. \ u) or cl. ( b) of s. 5 ( 3), the breach of the rule would fall under cl. (c) of s. 5(3).

In this case the prosecution has not proved that the four minors were employed in any of the activities mentioned in cl (a) or cl. (b) of s. 5(3). Nor has it proved that any manufac-ture of fireworks was done on April 28, 1960. It follows that the contravention of r. 16, on the facts found, can only come under cL (c) of s. 5(3).

We may mention that the learned counsel for the appellant challenged the findings of fact made by the High Court, but, in our opinion, ·they are not vitiated in any manner.

In the result, the appeal is partly allowed. The conviction is altered to one under cl. ( c) of s. 5 (3) of the Act,. and the aJ>pellant is sentenced to pay a fine of Rs. 1,000 and in default to undergo rigorous imprisonment for a period of three months. ·Fine, if paid in excess, shall be refunded.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 134 of 1965.

Appeal by special leave from the judgment and order dated May 14, 1965 of the Patna High Court in Government Appeal No. 25 of 1962.

N11r-ud-dit1 Ahmed and A. K. Nag, for the appellant.

D. P. Singh, Anil Kumar and S/rivpujan Singh, for the respondent.