- (1.) Heard learned counsel appearing for the petitioners and learned counsel appearing for the State.
(2.) Since all the three applications did arise out of the same F.I.R., the same were heard together and are being disposed of, by a common order.
(3.) In all the three applications, prayer has been made to quash the First Information Report of Kotal Pokhar P.S. Case No.80 of 2011 (G.R. No.324 of 2011), instituted under Sections 379, 411 of the Indian Penal Code and also under Sections 4 and 5 of the Explosive Substances Act. It is the case of the prosecution that during day petrolling, the A.S.I. of Kotal Pokhar Police Station while was passing through an area, he intercepted a Truck bearing Registration No.JH16A 4304. On search being made, 60 bags of Ammonium Nitrate were being found carried over it. During enquiry, it was found that 15 bags each were to be carried to the Firm of the petitioner, Ramesh Kumar Dokania and Ram Ratan Agrawal whereas 20 bags were being carried to the Hindustan Industries Mining Corporation-Proprietor, of which Pravesh Kumar is the petitioner. Thus, ten bags of Ammonium Nitrate were being found carried without there being any cash-memos. Therefore, the said 10 bags containing Ammonium Nitrate were taken to be stolen property and hence, a case was lodged which was registered as Kotal Pokhar P.S. Case No.80 of 2011, under Sections 379 and 411 of the Indian Penal Code and also under Sections 4 and 5 of the Explosive Substances Act against these petitioners as well as the driver, the seller and also the owner of the vehicle.Learned counsel appearing for the petitioners submits that accepting the entire allegations made in the First Information Report to be true neither the offence under the Explosive Substances Act nor even under Sections 379 and 411 of the Indian Penal Code is made out. Learned counsel in this respect submits that all the petitioners are engaged in a business of quarry of stones for which they required Ammonium Nitrate for converting it into as Amonium Nitrate Fuel Oil for the purpose of blasting of stones and for that, licence has been given to all the petitioners by the Ministry of Commerce and Industry, Petroleum and Explosive Safety Organization (PESO) and for that purpose, Ammonium Nitrate having been purchased from the shop of M/s Jay Shree Krishna Enterprises were being carried to the respective firms and thereby, no offence is made out under Sections 3 and 4 of the Explosive Substances Act for the reason that the Ammonium Nitrate never happens to be an explosive substance which would be evident from the Notification, published in The Gazette of India Extraordinary Part III on July 21, 2011, wherein it has been notified that the Amonium Nitrate having chemical Formula NH4 NO3 or any combination more than 45% of the Amonium Nitrate by weight shall be deemed to be an explosive, within the meaning of the said Act, but at the same time, note appended to it says that the Explosive Rules 2008 shall not be applicable, to Amonium Nitrate or any combination thereof, as referred to opening portion of this notification, except for the materials or mixtures classified as explosives under the said Explosives Rules, 2008 and there shall be framed separate rules for regulating the Ammonium Nitrate, or combination thereof under Section 5 and Section 7 of Explosives Act, 1884.;