UNIYAL,J - (1.) JUDGEMENT This appeal is directed against an order dated 31-8-1962 passed by the Assistant Sessions Judge, Meerut, acquitting Ram Pal respondent under S. 5 of the Explosive Substances Act. The respondent was tried for offences under S. 5 of the Explosive Substances Act as also under Ss. 5 and 6 of the Explosives Act. He was convicted of the offence under S. 6 of the Explosives Act and sentenced to one years rigorous imprisonment but was acquitted of the charges under S. 5 of the Explosive Substances Act at well as S. 5 of the Explosives Act. While the State has acquiesced in his acquittal under S. 5 of the Explosives Act it has challenged his acquittal under S. 5 of the Explosive Substances Act.
(2.) THE facts relating to the recovery of country made bomb material from the possession of the respondent on the night of the 8th January, 1960 have not been disputed. The report of Sri B.N. Dey, Inspector of Explosives, proved that the explosive material recovered from the possession of the accused was explosive substance. In his statement he deposed that the material recovered from the respondent constituted country made bomb dangerous to life and property and that it was an orange coloured mixture having red arsenic sulphide and potassium chlorate. He opined that arsenic sulphide and potassium chlorate constituted very sensitive explosive mixture and was dangerous to life and property. It was thus clearly established that the recovery of the explosive material from the possession of the respondent was caught within the definition as given in S. 2 of the Explosive Substances Act (Act VI of 1908), hereinafter referred to at the Act. The learned Assistant Sessions Judge acquitted the respondent of the charge under S. 5 of the Act on the ground that the notification No. 33/2/87-Police (IV) dated 14th May, 1957 issued by the Ministry of Home Affairs in exercise of powers conferred by cl. (1) of Art. 258 of the Constitution was null and void and that the consent accorded by the State Government for the prosecution of the respondent under S. 7 of the Explosive Substance Act was invalid and ineffective. Relying on certain observations of a learned single Judge of this Court in Chaitanya Prakash v. State, AIR 1960 All 376 that : A general direction by the Central Government that consent by a Governor to the prosecution of any offence committed in any circumstance at any time by anyone in future shall be deemed to be contented to by itself is inconsistent with the spirit of S. 7 of the Act, which contemplates that the Central Government shall consider the facts of the particular offence before consenting to prosecution for it;" the learned Assistant Sessions Judge came to the conclusion that there was no valid consent to the prosecution of the respondent and accordingly acquitted him of the charge under S. 5 of the Explosive Substances Act.
(3.) IN order to appreciate the controversy raised in this case it is necessary to refer to S. 1 of the Act which reads as follows : S. 7 "No court shall proceed to the trial of any person for an offence against this Act except with the consent of the Central Government." Central Government has been defined in S. 3(8) of the General Clauses Act (X of 1897), which so far as is material runt as follows : S. 3(8)(b) "Central Government shall in relation to anything done or to be done after the commencement of the Constitution, mean the Presidents and shall include, (i) in relation to functions entrusted under cl. (1) of Art. 258 of the Constitution to the Government of a State, the State Government acting within the scope of the authority given to it under that clause." Article 258(1) of the Constitution provides : "Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to in officers functions in relation to any matters to which the executive power of the Union extends." ;