This article has been written by Smaranika Sen from Kolkata Police Law Institute. This article exhaustively deals with the Explosive Substances Act,1908.
Explosive substances are harmful to society as well as the environment. It is also hazardous to the complex energetic compounds of the ecosystem. In general words, it can be said that explosive substances are hazardous to the planet Earth. However, a lot of explosive substances are made worldwide. Throughout the years, there have been many instances, which have shown the devastating effect of such explosive substances. Thus, to protect the society, environment, etc, laws are made. Different countries have different laws to curb the production, usage, etc of explosive substances. In India, the usage, production of explosive substances are governed under the Explosive Substances Act, 1908. This article analyses the Act through a landmark judgment.
The Explosive Substances Act – an overview
History and its developments
Under the Indian Penal Code, 1860, (IPC hereafter) Section 286 states the punishment for negligent conduct to explosive substances. As per this Section, any person with any explosive substance commits any act either rashly or by negligence that endangers human life or arises a situation that may cause hurt or injury to any other person, then he/she shall be punished under IPC. This Section further states that if any person intentionally or negligently does not take any precautions or sufficient guards while having the explosive substances, which may cause harm or injury to others, then he/she shall also be punished under IPC. For both cases, the punishment under IPC is imprisonment for a term of six months or with a fine up to Rs 1000, or with both.
However, the IPC did not address anything regarding the production, usage, or possession of such explosive substances. IPC only criminalized such circumstances where any other person’s life was harmed or might be endangered. Thus there was a dire need for another Act or provisions which would address and criminalize the production, usage, possession of such explosive substances. This led to the formation of the Explosive Substances Act. It came into effect in 1908. As this Act was commenced before the commencement of the Indian Constitution, therefore the Act will be continued to be in effect in the terms of their existing laws and adaptation just like it was at the time of its commencement. This power is given to this Act by the virtue of Article 372 of the Constitution. The extension of this Act is to the whole of India and also to other Indian citizens who are outside India.
Meaning of explosive substances
Explosive substances, in a scientific way, can be defined as any substance or mixture of substances whether it is solid and liquid, and is capable of chemically reacting within itself which causes the production of gases at such a temperature and speed that it becomes hazardous to the environment. Pyrotechnic substances also come under the purview of explosive substances irrespective of the fact that they do not evolve gases.
The term explosive substances are defined in Section 2 of the Explosive Substances Act. According to this Act, explosive substances include any such materials which are used to make such substances or can be any apparatus, machines, or implements used for making such substances or intended to make such substances. Anything if it is adapted or aided for causing any explosion with the help of explosive substances will also come under the purview of explosive substances. Any part of any apparatus or machine used for making explosive substances will also come under explosive substances.
The Act also gives us a proper idea through Section 2 of the above-mentioned Act about the special category of explosive substances. As per this Act, such special category explosive substances would include:
- RDX i.e. research development explosives
- PETN i.e. pentaerythritol tetranitrate
- HMX i.e. high melting explosives
- TNT i.e. tri nitro toluene
- LTPE i.e. low-temperature plastic explosive
- CE i.e. composition exploding
- OCTOL i.e. mixture of tri nitro toluene and high melting explosives
- PEK-1 i.e. plastic explosive Kirke-1
- RDX/TNT compounds
- Any other similar compounds as mentioned above
- Any remote control devices causing explosion and
- Any other substance or combination mentioned in the official Gazette by the Central Government for this Act.
The Act strictly prohibits any trial for the offenders under this Act, unless and otherwise it is executed with the consent of the District Magistrate. The maximum punishment given in this Act is the death penalty. However, it varies according to certain conditions and circumstances of the case.
- The punishment for causing any harm or serious injury endanger to any life or property with any explosive substances, irrespective of the fact whether it has caused any injury or not is life imprisonment, or imprisonment of not less than ten years or fine or both and in case of special category of explosive substances, the punishment can be death penalty or life imprisonment along with fine.
- The punishment for committing any act with an intention of causing any harm or injury or endanger life or property with explosive substances or special category of explosive substances, or making or having possession or control of such substances in order to endanger other’s life or property will be punished with life imprisonment or imprisonment up to ten years along with a fine in case of both explosive substances and special category of explosive substances.
- If a person, under reasonable circumstances, is suspected of having possession or making any explosive substances or special category of explosive substances, then he will be punished under this Act, unless the person shows or makes it evident that what he/she is making or possessing do not fall under the purview of an unlawful object. The punishment in the case of explosive substances is imprisonment for up to ten years along with a fine and in the case of the special category of explosive substances is life imprisonment or imprisonment up to ten years along with a fine.
- Any person who is supplying money or materials or providing premises or is aiding or abetting for the commission of an offence with explosive substances or a special category of explosive substances will face the same punishment as prescribed for such offences according to this Act.
The case of Union of India v. K.A. Najeeb
Facts of the case
In this case, a professor named T.J. Joseph was farming a Malayalam question paper, for the students of the second semester of Newman College, Thodupuzha. The question paper contained a question that created agony among certain sections of society. It was observed that the respondent of the case is. K.A. Najeeb along with some other members of the Popular Front of India or PFI decided to take revenge against the professor for the purported act of blasphemy. On the 4th of July, 2010, around 8 p.m, the respondent along with some people attacked the professor with a common object, while the professor was returning home along with his mother and sister. The professor was returning home from the local church after completing the Sunday mass. It was also observed that during the course of the attack, few members of PFI were obstructing the victim professor’s car and were restraining him from reaching his home. They also chopped off his right palm with choppers, a small axe, and a knife. They were also throwing country-made bombs at those persons who were present during the incident at that place so that a sense of terror and panic is created among them, and they do not come forward to help the victim. The wife of the professor immediately lodged an FIR against the attackers under:
- Section 143 of the Indian Penal Code for unlawful assembly
- Section 147 of IPC for rioting
- Section 148 of IPC for rioting along with deadly weapons
- Section 149 of IPC as every member of the group created an unlawful assembly with the intention of causing injury with a common object
- Section 120B of IPC for criminal conspiracy
- Section 341 of IPC for wrongful restraint
- Section 427 of IPC for committing the act of mischief which had led to the damage, amounting to fifty rupees or upwards
- Section 323 of IPC for causing hurt voluntarily
- Section 324 of IPC for causing hurt voluntarily by dangerous weapons or similar means
- Section 307 of IPC for attempting to murder
- Section 506 of IPC for causing criminal intimidation
- Section 3 of the Explosive Substances Act for causing an explosion in the view of endangering life or property.
However, during the course of the investigation of this case, it came out that the attack was pre-planned and such planning was to the extent of a larger conspiracy involving dangerous weapons. The respondent, K.A Najeeb along with other persons present there were brought before the Court by the police. It was observed that the respondent was the main conspirator of such an incident. Certain charges were invoked against him. The charges are:
- Section 153A of IPC for promoting enmity among different groups on grounds of religion, race, language, etc and thereby inducing them to commit the act.
- Section 201 of IPC disappearing the pieces of evidence and misleading with false information.
- Section 202 of IPC for intentionally omitting to give any information regarding the offence committed.
- Section 212 of IPC for harbouring.
- Section 16 the Unlawful Activities (Prevention) Act, 1967, for committing terrorist acts.
- Section 18 of the UAPA Act for conspiracy.
- Section 18B of the UAPA Act for recruiting other persons in order to commit terrorist acts.
- Section 19 for harbouring.
- Section 20 for being a member of any terrorist groups.
The main conspirator absconded therefore the trial between him and the other co-conspirators was split. Most of the co-conspirators were found guilty by the Special Court and they faced punishment ranging from two to eight years. The main respondent was, however, arrested on the 10th of April, 2015. After that, the National Investigation Agency (NIA) filed a charge-sheet against him on which he is going on trial.
The respondent had applied for bail in the Special Court and High Court at least six times, but the bail was rejected owing to the gravity of the offences committed by him, and his involvement. However, in 2019, he again pleaded for bail in the High Court of Kerala, this time he was released on bail. The High Court of Kerala released him on the basis that the trial was yet to begin and he had been already in custody for four to five years. Keeping an undertrial prisoner for so long in custody is leading to the denial of his Right to Liberty under Article 21 of the constitution. The Union Of India through NIA appealed in the Supreme Court of India against this order of the High Court of Kerala.
The learned counsel for the appellant referred to a case of National Investigation Agency v. Zahoor Ahmed Shah Watali (2019) which stated that the bail was not granted on the fact that the accused of this case could be observed as guilty by consulting the prima facie of the case, and as he had absconded earlier, there remains an apprehension that the accused might do this again. He also stated that the High Court had not adverted to Section 43-D(5) of the Unlawful Activities (Prevention) Act while granting bail. The learned counsel, thus referring to this case, stated that the case of Zahoor Ahmed is quite similar and in this case, therefore, K.A. Najeeb should also not be released on bail.
The learned counsel for the respondent stated that the respondent had already faced years of custody without trial and keeping him in custody is restricting his constitutional rights of liberty. He also stated that the co-conspirators had faced between two to eight years of imprisonment, but he had faced four years of jail without trial, this is also restricting his Right to Liberty.
From the arguments, facts of the case, and order by the High Court of Kerala, it was observed that the High Court has granted bail solely on the basis of the fundamental right guaranteed under Article 21 of the Constitution. The High Court had taken into account that the respondent had already spent almost four to five years and the trial had not begun yet. It also observed that the High Court has not adverted to Section 43-D(5) of the UAPA Act. It has been further seen in various cases like the Shaheena welfare Association case that delay in disposal of the case leads to invocation of Article 21 and thus it is necessary to release the undertrial on bail.
However, in regard to this case, it was observed that the gravity of the offences was serious and the respondent might be a threat to society. If this was the only condition, the High Court would have straightway rejected the bail plea of the respondent, but the length of the period the respondent had lived in custody and the uncertainty of the trial being completed any soon, the High Court had no other option except releasing the respondent on bail. The issue of Section 43-D(5) of the UAPA Act was also taken into consideration. It was observed that this section only provided another ground of not giving bail for the gravity of the offence, tampering with evidence, etc. Under this Section, the court does not need to be satisfied that whether the accused is guilty or not based on the prima facie.
The Supreme Court, therefore, decided not to turn down the bail order of the High Court of Kerala. However, it laid down certain conditions i.e. the respondent has to give his attendance at 10 a.m. every Monday at a local police station, and he should also not engage in any other crime, or violence, otherwise the bail will stand rejected.
The Explosive Substances Act, 1908 is one of the vital legislation. It is a very inclusive Act. However, still, in a lot of places, there is illegal production of explosive substances, which goes without the notice of law. At times, even children are recruited for making such substances. It is also observed that during the making of such dangerous explosives many people either face serious injuries or permanent disabilities or even death. Thus, if anybody is assigned to making awareness regarding these, then such problems can be curbed. In regard to the case of K.A. Najeeb, the judgment enshrines the Right to Liberty and also protects the rights of undertrial prisoners.
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