- (1.) HEARD learned counsel for the p1.arties. Apprehending his arrest the accused -petitioner has moved this application for grant of anticipatory bail under Section 438 Cr.P.C. in respect of FIR No.106/2012 registered at Police Station Chaupanki (District Alwar) for the offences under Section 4, 5 of the Explosive Substances Act, 1908 (hereinafter to be referred as 'the Act of 1908'). The allegation against the petitioner is that he sold or otherwise supplied explosive Ammonium Nitrate to co -accused -Shri Sahun without any licence or authority. The application filed by the petitioner for grant of anticipatory bail under Section 438 Cr.P.C. has been dismissed by the Additional Sessions Judge, Tijara (District Alwar) vide order dated 25.07.2013.
(2.) BRIEF relevant facts for the disposal of this application are that FIR No.106/2012 came to be registered on 30.12.2012 at Police Station Chaupanki (District Alwar) for the aforesaid offences with the averments that huge quantity of explosives including Ammonium Nitrate were recovered from two shops situated at village Udhanwas within the jurisdiction of the aforesaid Police Station and the same were seized as no valid licence or permit was found to possess or store the same. During the course of investigation it was found that the shops from where the recovery was made were in the possession of co -accused -Shri Sahun and two other persons and the Ammonium Nitrate so recovered was sold by M/s Deepak Fertilizers on 17.10.2012, 20.10.2012 and 18.11.2012 to M/s Mewat Enterprises of which the present petitioner claims to be sole proprietor.
(3.) DURING the course of interrogation co -accused -Shri Sahun claimed that he obtained/purchased the recovered Ammonium Nitrate from petitioner through his driver -Shri Nazeer and he also identified the house of petitioner where transaction regarding supply of the recovered Ammonium Nitrate allegedly took place between the petitioner and the co -accused -Shri Sahun. Although, in the FIR name of petitioner did not appear as an accused, but on the basis of evidence collected during investigation his name was also added as an accused. It is to be noted that after investigation charge -sheet for the aforesaid offences has already been filed against as many as four accused including Shri Sahun whereas investigation was kept pending against as many as six persons including the petitioner under Section 173 (8) Cr.P.C. In these circumstances, apprehending his arrest the present application for grant of anticipatory bail under Section 438 Cr.P.C. has been filed. In support of the application, learned counsel for the petitioner has raised the following grounds: - (i) It is an admitted fact that initially Ammonium Nitrate was not declared as an explosive under the provisions of the Explosives Act, 1884 (hereinafter to be referred as 'the Act of 1884') or the Explosives Rules, 2008 or the Act of 1908 and it has been so declared under the provisions of Ammonium Nitrate Rules, 2012 (hereinafter to be referred as 'the Rules of 2012') which came into force w.e.f. 11.7.2012. (ii) Licence has been issued in favour of the petitioner under the provisions of the Explosives Rules 2008 (hereinafter to be referred as 'the Rules of 2008') initially on 26.7.2001 for the period ending on 31.3.2003 and subsequently on 5.1.2012 for a period upto 31.3.2016 for certain category of explosives i.e. nitrate mixture, safety fuse, detonating fuse, detonators and, therefore, on the day on which the Rules of 2012 came into effect, the petitioner was an existing licence holder within the meaning of proviso to the Rule 5 of the said Rules. (iii) Although, on the enforcement of the Rules of 2012 no person was entitled to undertake manufacture, conversion etc. of even Ammonium Nitrate unless authorised or licenced under the said Rules but facility was given to the existing licence -holders to apply for grant of licence within six months from the date on which the Rules of 2012 came into force and a further period of one and half year was prescribed within which the provisions of the said Rules were to be complied with and the petitioner being an existing licence -holder under the provisions of Rules of 2008 applied for grant of licence on 7.1.2013 i.e. within the period of six months as prescribed under the proviso and, therefore, he was entitled to sell Ammonium Nitrate to any one without obtaining licence atleast for a period of six months. (iv) The petitioner sold the recovered Ammonium Nitrate to M/s Madina Trading Company vide Invoice No.067 dated 30.8.2012, Invoice No.110 dated 4.12.2012 and Invoice No.177 dated 31.12.2012. The last sale i.e. vide Invocie No.177 dated 31.12.2012 was made on the basis of a written order dated 30.12.2012 placed by M/s Madina Trading Company. If M/s Madina Trading Company further sold or otherwise supplied the Ammonium Nitrate sold by the petitioner to any other person without any licence or authority, the petitioner cannot be held responsible for it. M/s Madina Trading Company was an authorised dealer under the provisions of the Central Sales Tax Act, 1956 to trade, among others, in chemicals also and, therefore, the petitioner was legally entitled to sell and M/s Madina Trading Company was entitled to purchase Ammonium Nitrate from the petitioner. (v) As the petitioner was entitled to apply for grant of licence under the provisions of the Rules of 2012 upto 10.1.2013 and in the meanwhile he was entitled to sale, purchase, store etc. even Ammonium Nitrate without holding a licence and the recovery being made on 30.12.2012 i.e. before expiry of grace period of six months, no offence can be said to have been committed by the petitioner. Petitioner has already applied for grant of licence to possess for sale Ammonium Nitrate on 7.1.2013 i.e. before expiry of prescribed period of six months. On the other hand, learned Public Prosecutor controverting the submissions made on behalf of the petitioner submitted that as the petitioner was having licence issued under the provisions of Rules of 2008 only to possess for use certain category of explosives and not for sale of the same, he was not entitled to deal in Ammonium Nitrate in any manner as soon as the Rules of 2012 came into force w.e.f. 11.7.2012. The petitioner cannot come within the category of existing licence holder to sell any explosive substance including the Ammonium Nitrate. Otherwise also, the application was not made by the petitioner for grant of licence to possess for sale of Ammonium Nitrate within the grace period of six months as provided in proviso to Rule 5 of the said Rules and at the most it can be said that a letter dated 7.3.2013 was sent by the petitioner to the competent authority for approval of drawings showing site and construction details of the store house for possession and sale of Ammonium Nitrate but mere submission of such drawings and that also after expiry of prescribed period of six months can not amount an application for grant of licence for possession and sale of requisite quantity of Ammonium Nitrate. The claim of the petitioner that he sold the recovered Ammonium Nitrate to M/s Madina Trading Company vide Invoice No.177 dated 31.12.2012 is false by the reason that the recovery has already been made on 30.12.2012 showing that fabricated invoice has been prepared to escape from the liability.;