# MOHD, USMAN v. STATE OF BIHAR

- **Citation:** [1968] 3 S.C.R. 428
- **Court:** Supreme Court of India
- **Decided:** 1968-03-12
- **Case number:** Criminal Appeal No. 134 of 1965
- **Bench:** S. M. S!Kri, J. M. Shelat, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-usman-v-state-of-bihar-4421
- **Pages:** 5

## Headnote

B
l11dia11 Explosives Act, 1884 (4 of 1884), s. 5(3)-Minors permitted
to enter licensed pre.niises-Punish1nent under "tt•hich cl. of s. 5(3).
Explosive Rules, 1940, r. 16-Ji.tinors pernzitted to inter licensed pre·
mises-Punislunent under which cl. of s. 5(3).
The appellant, a manufacturer of fireworks was convicted under s.
5 ( 3) of the Indian Explosives Act as he. had allowed minors to work in
the manufacture of fireworks thus contravening r. 16 of the Explosives
Rules.
HELD: Clause (a) of s. 5(3) deals with a person who imports or
manufactures in .contravention of tho Rules; cl. (b) deals with a person
who 'possesses; uses, sells or transports any explosive in contravention of
the Rules; and cl. (c) deals with the contravention of the Rules in other
ca5es. If there is a breach of a rule, it has to be ascertained in each case
whether the rule or part of it relates to activities mentioned in cl. (a)
of s. 5(3) or cl. (b) of s. 5(3). If it does not relate to any of the
activities mentioned in cl. (a) or cl. (b) of s. 5(3) the breach of the
rule would fall under cl. (c), ·of s. 5(3). [430 A-B; 431 HJ
Jn this case, though it. was established that the minors were employed
1n or allowed to enter the premises, it was not proved that the minors
were employed in any of the activities mentioned in cl. (a) or cl. (b) of s.
5(3). Nor it has been proved that any manufacture of fireworks was
<lone on that day.
So the contravention of r. 16 on the facts found,
could only be punishable under cl. (c) of s. 5(3). [432 BJ

## Text

MOHD, USMAN
v.
STATE OF BIHAR
March 12, 1968
A
(S. M. S!KRI, J. M. SHELAT AND V. BHARGAVA, JJ.]
B
l11dia11 Explosives Act, 1884 (4 of 1884), s. 5(3)-Minors permitted
to enter licensed pre.niises-Punish1nent under "tt•hich cl. of s. 5(3).
Explosive Rules, 1940, r. 16-Ji.tinors pernzitted to inter licensed pre·
mises-Punislunent under which cl. of s. 5(3).
The appellant, a manufacturer of fireworks was convicted under s.
5 ( 3) of the Indian Explosives Act as he. had allowed minors to work in
the manufacture of fireworks thus contravening r. 16 of the Explosives
Rules.
HELD: Clause (a) of s. 5(3) deals with a person who imports or
manufactures in .contravention of tho Rules; cl. (b) deals with a person
who 'possesses; uses, sells or transports any explosive in contravention of
the Rules; and cl. (c) deals with the contravention of the Rules in other
ca5es. If there is a breach of a rule, it has to be ascertained in each case
whether the rule or part of it relates to activities mentioned in cl. (a)
of s. 5(3) or cl. (b) of s. 5(3). If it does not relate to any of the
activities mentioned in cl. (a) or cl. (b) of s. 5(3) the breach of the
rule would fall under cl. (c), ·of s. 5(3). [430 A-B; 431 HJ
Jn this case, though it. was established that the minors were employed
1n or allowed to enter the premises, it was not proved that the minors
were employed in any of the activities mentioned in cl. (a) or cl. (b) of s.
5(3). Nor it has been proved that any manufacture of fireworks was
<lone on that day.
So the contravention of r. 16 on the facts found,
could only be punishable under cl. (c) of s. 5(3). [432 BJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
134 of 1965.
Appeal by special leave from the judgment and order dated
May 14, 1965 of the Patna High Court in Government Appeal
No. 25 of 1962.
N11r-ud-dit1 Ahmed and A. K. Nag, for the appellant.
D. P. Singh, Anil Kumar and S/rivpujan
Singh,
for
the
respondent.
The Judgment of the Court was delivered by
Sikri, J. This appeal by s~ial leave is directed against the
judgment of the fatna High Court allowing the appeal filed by
the State Govemmept and convicting the
appellant,
Mohd.
Usman, under s. 5(3)(a) of the Indian Explosives Act.
1884
(IV of 1884 )-hereinafter referred to as the Act-and sentencing him to undergo rigorous imprisonment for two years and
also to pay a fine of Rs. 2,000, in default to undergo rigorous
c
D
E
F
G
H
MOHD. USMAN. v,. BIHAR (Sikri, J.)
429
A imprisonment for a further period of six months. The High
Court, however, agreed with the Magistrate that the appellant
could not be held guilty under s. 304A, IPC. The High Court
did not find the two other accused persons, Abdul Rahman and
Abdul Aziz, guilty, and State appeals against them were dismiss..
ed.
B
The prosecution c;ise, in brief, is that an explosion occurred
in appellant's factory at Matkuria, PS Dhanbad, on April 28,
1960. As a result of the explosion Kashi Bhakta, Gobardhan
Bhokta and Mohan Bour died. On that day, the appellant, who
manufactures fireworks, had allowed minors (under 16 years of
age), viz., Kashi Bhokta, Guhi Bhokta Gobardhan .and Subhas
Chamar to work in the man11facture of fireworks, thus oOiltravening r. 16 of the Explosives Rules, 194~hereinafter referred
to as the Rules-made under the Act, and had thereby committed an offence punishable under s. 5 ( 3 )(a) of the Act. The
High Court, disagreein~ with the Magistrate .who tried the case,
held that "the three mlnor boys, Kashi, Guhi and Subhas, were
employed and Gobardhan, in any event, was allowed to enter
the premises licensed under the Rules for manufacture of explosives" in contravention of r. 16, anu convicted the appellant
as already stated.
c
D
E
F
G
H
Section 5 ( 3) of the Act reads thus:
"Any person contravening the rules made under this
section shall lbe punishable-
(a) if he imports or manufactures any explosive in
such contraventibn, with . imp$nment for a
term which may extend to three years, or with
fine which may extend to five thousand rupees,
or with both;
( b) if he possesses, uses, sells or transports
any
explosive in such contravention with imprisonment .for a term w.hich may extend tc two years,
or with fine
which
may
extend
to three
thousand rupees, or with both; and.
(c) in any other case, with fine which may extend
to one thousand rupees."
Rule 16 of the Explosives Rules provides:
"16. Children and intoxic~ied persons-No child
under 16 years of age and no person who is in a state
of intoxication shall be employed on the loading, unloading or •transport of explosives, or be employed in
or allowed to enter any premises licensed under these
rules."
430
SUPRBMB ~T
llBPO&TS
(1968) 3 S.CR.
The first question which arises is whether every breach of
r. 16 falls under s. 5(3)(a) of the A<:t. In our opinion, the
answer is in the negative. It will be. noticed thai cl. (a) of s. 5
(3) deals with a ~n who imports or manufactures in contravention of the; Rules; cl. (b) deals with a person who possesses,
uses, sells or transports any explosive in contravention of the
Rules; and cl. (c) deals wtth contraventions of the
Rules in
other cases. It seems to us that the scheme of this sul>section is
to divide the contravention of the Rules into three categOries. In
the first category fall rules which a person must observe while
he imports or manufactures. · In other words, rules relatable to
A
B
the import or manufacture of exp!OsiVes would fall in the first
category. For example, clause 11 of the licence issued to the c
appcllant provides:
·
"Not more than four persons shall be allowed at
any one time in any one building or tent in which the
explosive is being manufactured and only persons actually employed in manufacturing or
superintending
manufacture shall be allowed iDsiile the place of
D
manufacture."
Clause 12 of the Licence provides:
"No iron or steel implements shall be used in the
manufacture. OnJ.y copper gun-methl or wooden tools
are permissible."
N<>W, if the appellant had infringed the provisions
of these
clauses it could be said that the contravenuon would fall under
cl. (a) of s. 5(3). We may mention that r. 81 provides that
E
"no explosive shall be manufactured, possessed, used or sold
except under and in accordance with the conditions of a licence
granted under these rules", and a breach of the conditions would
F
be contravention of r. 81. Bui su~ the appellant had contravened clause 2 of the licence-his licence is for the manufacture, possession and sal~ . of 25 pounds of fireworks-which
prescribes the modes in which the explosives shall be kept in the
premises, i.e. "(a) in a building substantially constructed of
brick-stone or concrete or in a securely constructed fire-proof
safe; or (b) in an excavation formed in solid rock or earth .... ",
G
he would be g_uilty under cl. (b) of s. 5(3) and not cl. (a) of
s. 5(3). Similarly, a contravention of clau•e 18. which provides
ihat "all sales of explosives under this licence must be effected
on the premises described on the face of the licence.
and
an
explosive shall not be sold to any person under the age of 16
years" would fall under cl. (b) of s. 5(3).
The learned counsel for the appellant contends that on the
facts found by the High Court the conviction of the appellant
H
A
B
c
D
E
F
G
H
MOHD. USMAN \', B!HAR (Sikri, J.)
431
under cl. (a) of s. 5(3) cannot be sustained. He says that
there is no finding or evidence that the four minors were engaged
to manufacture or were taking part in the manufacture of fireworks.
We have gone through the evidence and we find that
no witness states that these minor boys were employed by the
al'pellant to manufacture fireworks.
Subhas Chamar, P.W. 1,
says that he "was working in' the workshop of explosives at
Matkuria owned by Usmap .... We were working in the normal
manner and in the same place at the time of occurrence." Puran
Bhokta, P .W. 2, father of Kashi and Gobardhan, says that all his
sons "worked in the explosive workshop of Matkuria owned by
Usman." He does not enlighten us about the nature of work
done by his sons. Guhl Bhokta, P.W. 8, only states that "about
18 months ago, on a Thursday, I was working in the explosive
shop in village Matkuria under the supervision of Rahman
accused ...• " There is no other evidence bearing on this point.
From this evidence it cannot be definitely inferred that the four
minors were actually employed in the manufacture of explosives
on April 28, 1960. In fact, there is no evidence at all that any
fireworks were being manufactured that day. It was for the
prosecution to prove all the ingredients of the offence, and. s. 106
of the Evidence Act does not, as contended by the learned counsel for the State, absolve the prosecution from proving its case.
There is no doubt that tlif,te has been a contravention of r.
16, inasmuch as the four minors were employed in or allowed
to enter the premises licensed under the Rules. But r. 16 is a
comprehensive rule and applies to employment of minors in
the premises for various purposes--manufacture and sale of
explosives it would also apply to employment of a minor to
sweep floors and keep the premises clean.
If a minor is employed to keep clean the premises, would this
contravention fall under cl. (a), cl. (b) or cl. (c) of s. 5(3)?
It seems to us that if cl. (a) and cl. (b) are read widely so as
to cover every activity which might take place on the premfaes,
cl. (c) would be rendered redundant. This is not a permissible
way of reading statutes. Ii will be noticed that the legislature
regards an offence under cl. (a) of s. 5 ( 3) to be more serious
than one under cl. (b) and an offence under cl. (b) to be more
serious than one under cl. (c). Further, the rules are many;
some regulate minor matters, and it would be absurd to treat the
breach of every rule to be a breach of cl. (a) or cl. (b).
In our opinion, if there is a breach of a rule, it has to be
ascertained in each case whether the rule or part of it relates to
ac~ivities mentioned in cl. (a) of s. 5(3) or cl. (b) of s. 5(3).
It JI does not relate to any of the activities mentioned in cl. \ u)
432
SUPREME COUP.T REPOllTS
[1968] 3 S.C.R.
or cl. ( b) of s. 5 ( 3), the breach of the rule would fall under
A
cl. (c) of s. 5(3).
In this case the prosecution has not proved that the four
minors were employed in any of the activities mentioned in cl
(a) or cl. (b) of s. 5(3). Nor has it proved that any manufacture of fireworks was done on April 28, 1960. It follows that
the contravention of r. 16, on the facts found, can only come
B
under cL (c) of s. 5(3).
We may mention that the learned counsel for the appellant
challenged the findings of fact made by the High Court, but, in
our opinion, ·they are not vitiated in any manner.
In the result, the appeal is partly allowed.
The conviction
is altered to one under cl. ( c) of s. 5 (3) of the Act,. and the
aJ>pellant is sentenced to pay a fine of Rs. 1,000 and in default
to undergo rigorous imprisonment for a period of three months.
·Fine, if paid in excess, shall be refunded.
Y.P.
Appeal partly allowed.
c