MD ASHAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two appeals on behalf of twelve appellants in all are directed against judgment and order of conviction. The appellants of Criminal Appeal No. 158/ 96 have been convicted under Sections 3 and 4 of the Explosive Substances Act, 1908 and sentenced to rigorous imprisonment for ten years each under both. They have also been convicted under Section 148 of the Penal Code and sentenced to rigorous imprisonment for two years. The sole appellant of Criminal Appeal No. 190/96 too has been convicted under Sections 3 and 4 of the Explosive Substances Act but sentenced to rigorous imprisonment for life under Section 3 of the Act and rigorous imprisonment for 15 years under Section 4. He too has been convicted under Section 148 of the Penal Code and sentenced to rigorous imprisonment for two years. It may be stated here that 15 persons including 12 appellants herein were put on trial. The trial of three of them, namely, Md. Samiullah, Md. Mursalim and Md. Nasim was separated later for being tried by the Juvenile Court i.e. the Chief Judicial Magistrate.

(2.) THE prosecution was set in motion on the self-statement of Indradeo Singh, A.S.I, of Police, Nathnagar P.S. to the effect that on 15.11.1989 at 12.30 p.m. he heard the sound of explosion of bombs and fire-arms and also received information that the, officer Incharge of the Police Station, Shri A. Prasad, was surrounded by a mob. He along with police force proceeded towards Bishari Asthan. When he reached near the house of Md. Haider Ali in Abir Mishra lane at Champanagar, he again heard the sound of explosion and firing. THE police party surrounded the entire locality. In the meantime, a platoon of Central Reserve Police Force also reached there. With their help the search commenced. In presence of witnesses, namely, Gopal Prasad Singh and Vishwanth Prasad Sah, examined as P.Ws. 6 and 5, he arrested said Md. Haider Ali carrying a bag containing 10 bombs. Md. Samiullah @ Munna was also arrested along with loaded country pistol and live cartridges. Likewise, Md. Mursalin and Md. Nasim and others were also arrested with country made pistols and bombs. THE informant alleged that the above said persons were making attempt to hurl bombs. But, on the threat by the police party they surrendered their bombs which were put in a bucket ful of water. Seizure list was thereafter prepared. THE informant alleged that communal riot was going on in the area and the accused persons were intending to commit riot.

(3.) ARTICLE 258(1) of the Constitution provides that notwithstanding anything in the Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends. In exercise of the said power a notification was issued in the name of the President of India on 4.5.1957 vide Notification No. 33/2/57 Police (IV) of the Ministry of Home Affairs to the following effect: In exercise of the powers conferred by Clause (1) of ARTICLE 258 of the Constitution and in supersession of all previous notifications on the subject the President hereby entrusts to all State Governments, with their consent, the functions of the Central Government under Section 7 of the Explosive Substances Act, 1908 (VI of 1908). 'Explosive' being an item falling List I of the Union List of the Seventh Schedule of the Constitution, the power of the Parliament to make laws with respect to exercise of executive power cannot be doubted. A conjoint reading of ARTICLE 258 (1) of the Constitution and the notification dated 4.5.1957 leaves no room for doubt that the function exercisable by the Central Government under Section 7 of the Explosive Substances Act could be delegated by the President in exercise of the executive power to the State Government or its officers. It is relevant to mention here that while earlier the delegation was made in favour of the State Governments on 4.5.1957, later similar delegation was made in favour of the District Magistrate on 2.12.1978 vide Notification No. S.O. 3583 of the Ministry of Home Affairs, Government of India in the same terms as notification dated 4.5.1957 quoted above. It would thus follow that the District Magistrate was fully competent in exercise of his delegated power to accord consent or sanction under Section 7 of the Act for prosecution of the appellants under the Explosive Substances Act.