Analysis of Section 9B(1)(b) of the Explosives Act, 1884

Regulating Explosives in India: A Juridical Analysis of Section 9B(1)(b) of the Explosives Act, 1884

Introduction

The Explosives Act, 1884 (hereinafter "the Act") stands as a cornerstone of India's regulatory framework governing the manufacture, possession, use, sale, transport, import, and export of explosives. Enacted with the objective of preventing accidents and ensuring public safety, the Act empowers the Central Government to frame extensive rules and establish a licensing regime. Section 9B of the Act, introduced by an amendment, prescribes punishments for certain offenses committed in contravention of these rules or license conditions. Specifically, Section 9B(1)(b) addresses the unlawful possession, use, sale, or transport of explosives. This article undertakes a comprehensive analysis of Section 9B(1)(b), examining its statutory components, judicial interpretations by Indian courts, procedural nuances, and its interplay with related legislation. It draws upon a range of case law to elucidate the practical application and challenges associated with this pivotal provision.

The Statutory Framework: Section 9B(1)(b) of the Explosives Act, 1884

Section 9B, titled "Punishment for certain offences," is a critical penal provision within the Act. Clause (1)(b) of this section targets specific activities related to explosives when conducted illicitly.

Text and Elements of the Offense

Section 9B(1) of the Explosives Act, 1884, stipulates:

"Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules -
...
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both;..." (as quoted in Mohan Yadav v. State Of Madhya Pradesh, 2001 ANJ 1 459; BALAKRISHNA @ KITTAPPA v. STATE OF KARNATAKA, 2021)

The essential elements to constitute an offense under Section 9B(1)(b) are:

  1. The accused must possess, use, sell, or transport an "explosive."
  2. Such possession, use, sale, or transport must be in contravention of:
    • Rules made under Section 5 of the Act, or
    • The conditions of a license granted under the said rules.

The prosecution must establish both the actus reus (the prohibited act of possession, use, sale, or transport) and the circumstance of contravention of the stipulated rules or license conditions. The provision aims to penalize unauthorized handling of explosives, thereby reinforcing the regulatory control envisioned by the Act.

Definition of "Explosive"

The term "explosive" is central to the applicability of Section 9B(1)(b). Section 4 of the Explosives Act, 1884, provides an inclusive definition. As noted in Mohammad Usman Mohammad Hussain Maniyar And Others v. State Of Maharashtra (1981 SCC Online SC 60), the pre-amendment definition (relevant for occurrences before its amendment) stated:

“‘explosive’ means gunpowder, nitro-glycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to produce a practical effect by explosion, or a pyrotechnic effect; and includes fog-signals, fireworks, fuses, rockets, percussion caps, detonators, cartridges, ammunition of all descriptions, and every adaptation or preparation of an explosive as above defined;”

The Supreme Court in Chandra Prakash v. State Of Rajasthan (2014 SCC Online SC 396) also referred to this definition, highlighting its broad scope. The determination of whether a substance falls within this definition is a matter of evidence, often relying on expert opinion, as affirmed in Mohammad Usman Mohammad Hussain Maniyar. Furthermore, the legal status of a substance as an "explosive" can depend on official notifications. In M. Antony Gomez v. State (Madras High Court, 2014), the court considered an argument that ammonium nitrate was not an "explosive" on the date of seizure because its notification as such came later, referencing a precedent where an FIR under Section 9B was quashed on similar grounds concerning ammonium nitrate.

Rule-Making Power under Section 5 and the Licensing Regime

Section 9B(1)(b) is intrinsically linked to Section 5 of the Act, which empowers the Central Government to make rules to regulate or prohibit, except under and in accordance with the conditions of a license, various activities involving explosives. As detailed in Rafi v. Additional District Magistrate (Kerala High Court, 2010), Section 5(1) allows the Central Government to frame rules for "the manufacture, possession, use, sale, transport, import and export of explosives, or any specified class of explosives." These rules may provide for the authority granting licenses, fees, and other related matters (Section 5(2), as noted in State Of H.P v. Lal Singh & Another S, 2009). The licensing regime, therefore, forms the bedrock of regulatory control, and any deviation from the rules promulgated under Section 5 or the specific conditions laid down in a license can attract penal consequences under Section 9B(1)(b).

Judicial Interpretation and Application of Section 9B(1)(b)

Indian courts have had numerous occasions to interpret and apply Section 9B(1)(b), shedding light on its scope, the nature of contraventions, and procedural requirements.

Scope of "Possession"

While the reference materials do not extensively dissect "possession" specifically under Section 9B(1)(b) of the Explosives Act, 1884, principles from analogous statutes like the Arms Act can be instructive. In Gunwantlal v. State Of Madhya Pradesh (1972 SCC 2 194), the Supreme Court, interpreting "possession" under the Arms Act, clarified that it need not be physical; constructive possession, involving knowledge and control over the firearm, suffices. The Court identified two core elements: (1) consciousness or knowledge of possession, and (2) control or power over the item. These principles of conscious and constructive possession are likely to be relevant in determining possession of explosives under Section 9B(1)(b).

Contravention of Rules or License Conditions

Violations leading to prosecution under Section 9B(1)(b) often involve clear breaches of the Explosives Rules or specific license terms. Examples include:

  • Excess Storage: Storing explosives in quantities exceeding the licensed limit is a common contravention. In ANAND v. THE STATE OF KARNATAKA AND ANR (Karnataka High Court, 2024), the case involved allegations of violating license conditions, including Rule 74 of the Explosives Rules, 2008, which pertains to storage of explosives in excess of the licensed quantity.
  • Sale to Unauthorized Persons: In Mohan Yadav v. State Of Madhya Pradesh (2001), charges were framed under Section 9B(1)(b) for allegedly selling explosives to individuals not authorized to possess them, in contravention of the license.
  • Illegal Storage and Transport Without a License: Possessing or transporting explosives without any valid license is a direct violation. Devendra Singh v. The State Of Madhya Pradesh (Madhya Pradesh High Court, 2015) involved allegations of storing and transporting explosive substances without a valid license. Similarly, in The State Of U.P (Now State Of Uttarakhand) v. Khalil Ahmad (2012 SCC ONLINE UTT 1855), the accused were charged under Section 9B(1)(b) for possessing gelatin in excess of entitlement and without proper documentation, though they were ultimately acquitted.
  • General Contravention of Rules: The Supreme Court in Mohd Usman v. State Of Bihar (1968 AIR 1278), while discussing Section 5(3) of the Act (an earlier penal provision for rule contravention), categorized breaches of rules. Clause (b) of Section 5(3) dealt with possessing, using, selling, or transporting explosives in contravention of rules, which aligns with the conduct penalized under the modern Section 9B(1)(b).

It is crucial that the prosecution clearly links the accused to the contravention. In SHAIJU N v. STATE OF KERALA (Kerala High Court, 2023), criminal proceedings under Section 9B(1) were quashed because the only allegation against the petitioner was that his vehicles were found in a quarry, which was deemed insufficient to establish a contravention of rules under Section 5 by the petitioner himself.

Punishment and Bail Considerations

Section 9B(1)(b) prescribes a punishment of imprisonment for a term which may extend to two years, or a fine which may extend to three thousand rupees, or both. Given that the maximum imprisonment is two years, the offense is not among the most severely punished under the Act or related special laws like the Explosive Substances Act, 1908. This often influences bail considerations. In BALAKRISHNA @ KITTAPPA v. STATE OF KARNATAKA (2021), bail was granted to a coolie worker, noting that the offenses (including under Section 9B(1)(b)) were not punishable with death or life imprisonment and that a co-accused had been granted bail. Similarly, in Nissar And Others Petitioners/accused v. State Of Kerala (2020 SCC ONLINE KER 23126), anticipatory bail was granted as contraband articles (gun and explosive substances) had already been seized and custodial interrogation was deemed unnecessary. The fact that an applicant was implicated merely on the basis of a co-accused's statement and that other co-accused were on bail were factors in granting bail in Piyush Bhai Patni v. The State Of Madhya Pradesh (Madhya Pradesh High Court, 2024).

Procedural Aspects

Several procedural issues arise in the context of prosecutions under Section 9B(1)(b), most notably concerning the requirement of sanction and the sufficiency of evidence for trial.

Sanction for Prosecution

A significant point of discussion is whether prior sanction is necessary to prosecute under Section 9B(1)(b). The High Court of Jharkhand in V.S.K Nairand Debanshu Ghosh.… v. State Of Bihar…. (2001) explicitly held that "A perusal of the provisions of the Explosives Act, 1884, particularly Section 9B thereof clearly suggests that no sanction is required for launching prosecution in the matter." This view was supported by reference to the Supreme Court's judgment in Rakesh Kumar Jain v. State ((2000) 7 SCC 656), which established that if sanction is not statutorily required, time spent in obtaining an administrative order for prosecution cannot be excluded for limitation purposes. The Patna High Court in Sri S.M Mazhar v. Sri M. Mahsin Khan (1995), while dealing with committal proceedings, also noted that for offenses under the 1884 Act, consent under Section 7 (which deals with sanction for offenses under the Explosive Substances Act, 1908) is not required. However, there are instances where sanction appears to have been obtained. For example, in The State Of U.P (Now State Of Uttarakhand) v. Khalil Ahmad (2012), the judgment notes that the charge sheet was submitted "after obtaining sanction from the District Magistrate." This might be due to an abundance of caution, local practices, or the presence of other charges requiring sanction. The prevailing judicial view, however, leans towards no mandatory sanction for Section 9B offenses under the 1884 Act. This contrasts with offenses under the Explosive Substances Act, 1908, where sanction is often a prerequisite (Sunny And Mohanan v. State Of Kerala, 2015, discussing sanction under Section 3 of the 1908 Act).

Sufficiency of Evidence for Framing Charge and Quashing Proceedings

Courts require a prima facie case based on material on record to proceed with a trial under Section 9B(1)(b). In Mohan Yadav v. State Of Madhya Pradesh (2001), the Madhya Pradesh High Court set aside an order framing charges under Section 9B(1)(b) because "there is hardly any material on record which may be said to be sufficient for framing charges against the petitioners in absence of the statements of the prosecution witnesses recorded by the police during investigation of the case." Conversely, High Courts have exercised their power under Section 482 of the Code of Criminal Procedure, 1973, to quash proceedings where the allegations, even if taken at face value, do not disclose an offense. In SHAIJU N v. STATE OF KERALA (2023) and ANAND v. THE STATE OF KARNATAKA AND ANR (2024, Document 20), proceedings involving Section 9B were quashed, citing the principles laid down in State of Haryana v. Bhajanlal (1992 Supp.(1) SCC 335), as the uncontroverted allegations did not disclose the commission of an offense by the petitioners.

Jurisdiction

Issues of territorial jurisdiction can arise, especially when explosives are transported across state lines or stored in one place and sold/used elsewhere. In Devendra Singh v. The State Of Madhya Pradesh (2015), the court dealt with a situation where cases involving illegal storage and transport of explosives were registered in different locations (Sagar, MP, and Lalitpur, UP). The court found the cases to be distinct, involving different aspects of the illegal operations.

Interplay with the Explosive Substances Act, 1908

It is common for offenses under Section 9B(1)(b) of the Explosives Act, 1884, to be charged alongside provisions of the Explosive Substances Act, 1908. For instance, in The State Of U.P v. Khalil Ahmad (2012) and BALAKRISHNA @ KITTAPPA v. STATE OF KARNATAKA (2021), charges included Section 4(b) of the 1908 Act (making or possessing explosives under suspicious circumstances or with intent to endanger life/property). The 1884 Act primarily focuses on regulating the lawful trade and handling of explosives and penalizing contraventions of these regulations. In contrast, the 1908 Act addresses more serious offenses involving the unlawful and malicious use or possession of explosive substances with intent to cause harm or under suspicious circumstances (Imperator v. Keshavlal Tribhovandas Panchal No. 1, Bombay High Court, 1944). Section 9B(1)(b) deals with the regulatory aspect of possession, use, sale, or transport in breach of rules/licenses, often without the specific malicious intent required by several sections of the 1908 Act.

Critical Analysis and Potential Lacunae

The application of Section 9B(1)(b) reveals certain areas that warrant attention. The definition of "explosive" and its reliance on notifications (as seen in M. Antony Gomez) underscores the need for clarity and timely updates to ensure that the law effectively covers all hazardous substances intended for regulation. While the general judicial consensus appears to be that no sanction is required for prosecution under Section 9B, the occasional mention of sanction being obtained (as in Khalil Ahmad) suggests a potential for inconsistency in practice, which could be clarified through authoritative pronouncements or legislative amendment if deemed necessary. The relatively modest penalty prescribed under Section 9B(1)(b) (up to two years imprisonment) reflects its character as a regulatory offense. However, the potential danger posed even by mishandling explosives in contravention of rules necessitates diligent enforcement. The threshold for establishing a prima facie case, as highlighted in Mohan Yadav and cases leading to quashment, ensures that prosecutions are not frivolous, balancing public safety concerns with individual rights.

The case of BABU LAL GODARA v. STATE OF RAJASTHAN (Rajasthan High Court, 2023), dealing with academic matters and expert opinion in examinations, and State Of Madhya Pradesh And Another v. Ram Prakash Singh And Another (2012 SCC 5 622), concerning police accountability for custodial escape, are not directly pertinent to the substantive interpretation or application of Section 9B(1)(b) of the Explosives Act, 1884, and thus have not been central to this analysis.

Conclusion

Section 9B(1)(b) of the Explosives Act, 1884, plays a crucial role in the enforcement of India's legal regime for explosives control. It penalizes the unauthorized possession, use, sale, or transport of explosives undertaken in contravention of statutory rules or license conditions. Judicial interpretations have clarified the scope of "explosive," the nature of contraventions, and important procedural aspects, particularly the general non-requirement of prior sanction for prosecution. While the provision is primarily regulatory, its effective implementation is vital for public safety. The case law demonstrates a judicial approach that balances the need for stringent control over explosives with the principles of fair trial and due process. Continued vigilance in enforcement, coupled with clarity in legal definitions and procedures, will remain essential to achieving the objectives of the Explosives Act, 1884.