An Analysis of Section 4 of the Explosive Substances Act, 1908

An Analytical Study of Section 4 of the Explosive Substances Act, 1908 in India

Introduction

The Explosive Substances Act, 1908 (hereinafter "the Act") is a significant piece of legislation in India designed to penalize the unlawful and malicious use, possession, and manufacture of explosive substances. Enacted to address threats to life and property stemming from such materials, the Act provides a stringent framework for prosecution. Section 4 of the Act is particularly pivotal, as it criminalizes attempts or conspiracies to cause explosions and the unlawful making or possession of explosive substances with the intent to endanger life or property. This article aims to provide a comprehensive analysis of Section 4, examining its constituent elements, the requisite mens rea, judicial interpretations of its provisions, and its application in practice, drawing upon statutory text and pertinent case law from India.

Defining "Explosive Substance"

A clear understanding of what constitutes an "explosive substance" is fundamental to the application of Section 4. Section 2 of the Act provides an inclusive definition:

"In this Act the expression ‘explosive substance’ shall be deemed to include any materials for making any explosive substance, also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement."[7]

This definition is broad, encompassing not only finished explosives but also precursor materials and devices intended for causing explosions. The Supreme Court in Mohammad Usman Mohammad Hussain Maniyar And Others v. State Of Maharashtra[11], while examining the definition of "explosive" under the Indian Explosives Act, 1884 (which is often read in conjunction), affirmed that substances like potassium chlorate, sulphur mixtures, detonators, and gunpowder fall under this definition. In Imperator v. Keshavlal Tribhovandas Panchal No. 1, bomb shells (containers and screw caps) were held to be "explosive substances" under Section 2 of the Act.[9] The hazardous nature of the substance is critical, as emphasized in S.K Shukla And Others v. State Of U.P And Others, where the court noted that even low-intensity explosives capable of mass destruction are covered.[7]

Analysis of Section 4 of the Explosive Substances Act, 1908

Section 4 of the Act delineates two distinct offences related to the malicious use or possession of explosives. It states:

"4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property.—Any person who unlawfully and maliciously—
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India,'
Shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished,—
(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."[16] (Note: The punishment clause has been subject to amendments over time, particularly regarding "special category explosive substances" and the quantum of punishment. Earlier versions included transportation for life.[21])

Section 4(a): Attempt or Conspiracy to Cause Explosion

This clause penalizes any unlawful and malicious act done with the intent to cause an explosion, or a conspiracy to cause such an explosion, provided the explosion is of a nature likely to endanger life or cause serious injury to property. Key elements include:

  • An unlawful and malicious act or conspiracy.
  • Specific intent to cause an explosion by an explosive substance.
  • The intended explosion must be of a nature likely to endanger life or cause serious injury to property.
The Bombay High Court in Imperator v. Keshavlal Tribhovandas Panchal No. 1 elaborated on this clause, highlighting that the act itself, coupled with the requisite intent and the dangerous nature of the potential explosion, constitutes the offence.[9] The actual occurrence of an explosion or injury is immaterial for conviction under this clause.

Section 4(b): Making or Possessing Explosives with Unlawful Intent

Section 4(b) addresses the unlawful and malicious making, possession, or control of any explosive substance with the specific intent to endanger life or property, or to enable another person to do so. The essential ingredients are:

  • Unlawful and malicious making, possession, or control of an explosive substance.
  • Specific intent by means of such explosive substance:
    • to endanger life, or
    • to cause serious injury to property, or
    • to enable any other person to endanger life or cause serious injury to property in India.
Again, whether an explosion occurs or injury is caused is irrelevant.[9], [7] This provision is frequently invoked in cases involving the recovery of explosives from individuals where the circumstances suggest a nefarious purpose.

Mens Rea: "Unlawfully and Maliciously" and "Intent"

The term "unlawfully" signifies that the act must be contrary to law. "Maliciously" implies a deliberate wrongdoing, an act done with an improper motive or evil design, without just cause or excuse. The core mens rea for Section 4 is the specific "intent" prescribed:

  • Under Section 4(a): intent to cause an explosion likely to endanger life or property.
  • Under Section 4(b): intent by means of the explosive to endanger life, cause serious injury to property, or enable another to do so.
Proving this specific intent is crucial for the prosecution. It is often inferred from the surrounding circumstances, such as the nature and quantity of the explosive, the manner of concealment, the accused's conduct, and any lack of a lawful explanation for possession.[7] The concept of "conscious possession" is vital. As discussed in Mohammad Usman Mohammad Hussain Maniyar And Others v. State Of Maharashtra[2], [11] (in the context of Section 5 of the Act, but principles are applicable), the accused must be aware of the nature of the substance they possess. The Patna High Court in Rajani Kanta Mandal v. The State Of Bihar, interpreting Section 5 and citing English precedent R. v. Hallam, emphasized that the accused must know the substance is an explosive.[15] While Section 5 shifts the burden to the accused to prove a lawful object if possession is under suspicious circumstances, Section 4(b) requires the prosecution to positively prove the specific unlawful intent to endanger life or property.

Punishment under Section 4

The punishment prescribed under Section 4 is severe, reflecting the grave danger posed by such offences. It differentiates between "any explosive substance" and "special category explosive substance," with the latter potentially attracting a more stringent sentence. Historically, the Act provided for "transportation," which, as clarified in Abdul Gafoor v. State Of Delhi & Anr[21], has been interpreted in light of amendments to the Indian Penal Code regarding sentencing. The current framework typically involves imprisonment for life or a term which may extend to ten years, along with a fine. The precise penalties can vary based on amendments and the specific nature of the substance involved.[8], [10], [16]

Judicial Interpretation and Application of Section 4

Possession and Control

For Section 4(b), "possession" or "control" must be established. "Possession" implies knowledge of the existence of the substance and some degree of dominion over it. It need not be actual physical custody; constructive possession, where the substance is under the accused's power or control, suffices. The Supreme Court in Mohammad Usman Mohammad Hussain Maniyar[2], [11] affirmed convictions based on "conscious possession" inferred from the circumstances. The Gauhati High Court in Mljink Basumatary v. State Of Assam And Anr. upheld a conviction under Section 4(b) where a hand grenade was recovered based on information provided by the accused, indicating her knowledge and control.[19]

Establishing Intent

Proving the specific intent to endanger life or property is the most critical and often challenging aspect for the prosecution under Section 4. Since direct evidence of intent is rare, it is usually inferred from circumstantial evidence. Factors considered by courts include:

  • The nature and quantity of the explosive substance.[7]
  • The place and manner of concealment.
  • The presence of detonating mechanisms or other related materials.
  • The conduct of the accused before, during, and after the recovery.
  • The absence of any lawful purpose for possessing such substances. As observed in S.K Shukla And Others v. State Of U.P And Others, "Any person in this background possessing this hazardous explosive substance cannot be credited to have it for bona fide purpose."[7]
While not directly under Section 4, the principle from State Of Rajasthan v. Kashi Ram[6] concerning Section 106 of the Indian Evidence Act can be analogously relevant: if certain facts regarding the possession or purpose of explosives are especially within the knowledge of the accused, their failure to offer a credible explanation can lead to an adverse inference. However, the primary burden to prove intent under Section 4 remains on the prosecution.

Low Intensity v. Hazardous Nature

An important clarification was provided in S.K Shukla And Others v. State Of U.P And Others, where the Supreme Court rejected the argument that a substance being of "low intensity" as per a bomb disposal squad report would take it outside the purview of Section 4(b) if it is otherwise hazardous and capable of causing mass destruction or being used in bombs.[7] The potential for harm is a key consideration.

Procedural Aspects and Evidentiary Burden

Prosecutions under Section 4 demand meticulous investigation and adherence to procedural fairness. This includes proper seizure of evidence, accurate documentation, and expert examination of the substances. The framing of charges must correctly reflect the ingredients of Section 4(a) or 4(b). In RUKUMUDDIN v. STATE OF RAJASTHAN THROUGH PP, the Rajasthan High Court quashed an order framing charges under Sections 4 and 5, directing the trial court to rehear the matter, indicating the importance of correct charge formulation.[18] The accused's statement under Section 313 of the Code of Criminal Procedure, 1973, also plays a role. While an accused is not compelled to be a witness against themselves, an unsatisfactory or absent explanation for incriminating circumstances can be considered by the court. However, as noted in Rabin Pradhan v. State Of Sikkim, an adverse inference cannot be drawn merely from what is stated or not stated if the prosecution has not otherwise established its case.[13] Cases like the 1993 Bombay bombings, which led to the prosecution in Yakub Abdul Razak Memon v. State Of Maharashtra[1], involved complex conspiracies and numerous charges under TADA and other acts, invariably including offences related to explosive substances, underscoring the Act's role in addressing large-scale terrorist activities.

Interplay with Other Legislations

Offences under Section 4 of the Explosive Substances Act, 1908, are often prosecuted alongside charges under other statutes. These may include:

  • The Indian Penal Code, 1860 (e.g., for criminal conspiracy, mischief, offences against the State).
  • The Arms Act, 1959 (if arms are also recovered).
  • The Explosives Act, 1884 (which primarily regulates the manufacture, possession, use, sale, transport, import, and export of explosives).
  • Special anti-terrorism laws (when applicable), such as the now-repealed TADA or POTA. For instance, in State v. Mohd. Afzal & Ors. (Delhi High Court, 2003), accused were charged under POTA and the Explosive Substances Act.[10]
The contemporary application, as seen in Haseen @ Bhura v. State of U.P. and Another[20], shows FIRs lodging charges under Section 3 and 4 of the Explosive Substances Act alongside various IPC sections and other specific acts like the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, depending on the facts of the case.

Discussion of Key Reference Materials

Several judicial pronouncements have shaped the understanding of Section 4:

  • Imperator v. Keshavlal Tribhovandas Panchal No. 1 (1944)[9]: This early decision from the Bombay High Court provided a foundational interpretation of Section 4(a) and 4(b), clarifying the scope of "explosive substance" to include components like bomb shells and emphasizing the elements of intent and maliciousness.
  • S.K Shukla And Others v. State Of U.P And Others (2005)[7]: The Supreme Court's ruling is significant for its firm stance that the hazardous nature of an explosive, capable of causing destruction, brings it within Section 4(b), irrespective of expert opinion terming it "low intensity." It also highlighted how unlawful intent can be inferred from the possession of such hazardous substances without bona fide purpose.
  • Mohammad Usman Mohammad Hussain Maniyar And Others v. State Of Maharashtra (1981)[2], [11]: While primarily dealing with Section 5 of the Act, this Supreme Court case is crucial for its discussion on "conscious possession" and the broad interpretation of "explosive substance," principles that are equally relevant for understanding offences under Section 4.
  • State v. Mohd. Afzal & Ors. (Delhi High Court, 2003)[8], [10]: This case, arising from the Parliament attack, illustrates the application of Section 4 in the context of high-profile terrorism. It quotes the statutory text and shows its use alongside special anti-terror laws like POTA.
  • Abdul Gafoor v. State Of Delhi & Anr (Delhi High Court, 2007)[21]: This judgment is pertinent for its analysis of the sentencing provisions under the unamended Section 4, particularly how the punishment of "transportation" was to be interpreted following amendments to the Indian Penal Code.

Conclusion

Section 4 of the Explosive Substances Act, 1908, serves as a critical legal instrument in India's arsenal against the unlawful use and proliferation of explosives. Its provisions, targeting both attempts/conspiracies to cause explosions and the illicit making or possession of explosives with dangerous intent, carry severe penalties. The judiciary has played a vital role in interpreting its key elements, particularly the stringent mens rea requirements of acting "unlawfully and maliciously" with specific "intent" to endanger life or property. Courts have consistently emphasized that such intent can be inferred from circumstantial evidence, including the nature of the substance, the context of its possession, and the conduct of the accused. The distinction between the hazardous potential of a substance and its mere "intensity" has also been clarified, ensuring that dangerous materials are not lightly dismissed. Despite the challenges in proving specific intent, Section 4 remains a cornerstone in efforts to maintain public safety and national security, adapting through judicial interpretation to address evolving threats posed by explosive substances.

References