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Constitutional Petition No. D‑735 of 1983, decided on 18th January, 1984.

‑‑ Ss. 5 & 6‑Explosive Rules, 1940, rr. 82 (b) & 83 (c)‑Provi sional Constitution Order (1 of 1981.), Art. 9‑Petitioner doing business of mining and excavation of stones and keeping some explosions for such works ‑ Authority demanding licence for explosives‑Petitioner filing constitutional petition seeking direc tions against Authority to refrain him from demanding licence from him as gun powder to extent of 30 lbs. could be kept without licence as such being protected under cl. (c) of r. 83‑Held, r. 83 of Explosive Rules provided cases where a person was not required to have licence for possession of gun powder not exceeding 30 lbs. Enquiry necessary to see if case of petitioner covered by r. 83‑Possession of explosive permitted under Rules (30 lbs.) could not be objected‑Whether explosives kept was 30 lbs. or more is a matter requiring further enquiry by police‑Direction, held, could not be issued to Authority not to make any enquiry or demand any licence from petitioner in circumstances.

Nawab Mirza for Petitioner.

Sayeed A. Shaikh, A.‑G. for Respondents.

.‑The admitted position in this case is that the petitioner does keep some explosives which, according to him, are used for the purposes of mining, or, quarrying and excavation of stones. It seems that he is in this business since 1952. He has, however, stated in para graph 3 of the petition that he has worked with various employers who had some licences for explosives. In the present petition, however, the facts are that on 8‑9‑1983, respondent No. 3 came to the quarry, where the petitioner was working and demanded the licence for explosives. It is alleged that respondent No. 3 threatened to stop the work of the peti tioner. Nothing is stated in the petition to show that any action has been taken by any of the respondents against the petitioner, or, any action is contemplated.

The prayer, however, in the petition is indeed novel, and it is couched in the following words;

. . to direct the respondents refrain from demanding licence for the explosive and stopping the use and possession of explosive/ gun powder and Barood Hati intended and used by the petitioner for excavation of stones to the extent of 30 pounds at a time at the said place and may be further pleased to direct the respondents not to interfere or stop the work of the petitioner in any manner and or may be pleased to grant such further relief . . . . . ."

Reliance has been placed by Mr. Nawab Mirza on rules 82 and 83 of the Explosive Rules, 1940, framed under sections 5 and 7 of the explosive Act, 1884. The learned Advocate sets up a case that the petitioner will be covered by the exemptions that are contained in these rules. The said rules read as follows :‑

"82. No licence needed for manufacture in certain cases---Notwithstand ing anything contained in rule 81, no licence to manufacture shall ,be necessary (a) for the making of a small quantity of explosive for the purpose of chemical experiment and not for sale or any other use ; or (b) in the case of any person authorised under these rules to possess an explosive who by filling cartridges, making charge or drying, sifting, fitting or otherwise, adapts or prepares such explosive for use exclusively for blasting purposes in his mine or quarry in some excavation or work carried on by him or under his control.

83. No licence needed for possession in certain cases.‑Notwithstanding anything contained in rule 81, no licence shall be necessary for the possession‑

(a) of any explosive by a carrier or other person for the purpose of transport, when the same is being kept or transported in accordance with the provisions of Chapter IV regulating the transport of such explosive ; or

(b) by any person, of manufactured fire‑works in any quantity not exceeding 50 lbs., provided that the fire‑works (i) are obtained and intended by such person for immediate use and not for sale and are possessed by him for a period not exceeding fourteen days, and (ii) are kept in a substantial receptacle which is exclusively appropriated to the keeping of explosives and is closed and secured so as to prevent unauthorised person from having access to explosives ; or

(c) by any person for his own private use and not for sale of gun powder not exceeding 30 lbs., or of small‑arm nitrocompound not exceeding 10 'tbs., or

(d) by a Railway Administration of flare lights for use on railway ; or

(e) of any explosive, which is not for sale and is required solely for the navigation of aircraft, when kept in an aircraft for use therein, or for distribution to other aircraft or to aerodromes, or at any aerodromes for use there or for distribution to aircraft or to other aerodromes ; provided that the maximum quantity so possessed shall not exceed 50 tbs., when carried in an aircraft and 100 tbs. when kept at an aerodrome."

We have examined the above rules to understand the points in controversy. The learned Advocate has invited our attention to clause (b)t in rule 82, but upon reading of the said provision, we are left in no doubt whatsoever that it provides no protection to the petitioner, for this sub‑rule contemplates cases of such persons, who are authorised under the rules to possess an explosive. Admittedly, the petitioner has no such licence, and therefore clause (b) of rule 82 would not apply to his case. On a reference to rule 83, the learned Advocate only referred to sub‑rule (c) to set up a case that the petitioner was protected. No doubt, in paragraph 7 of the petition, an averment has been raised that the petitioner is engaged in work of excavation of stones, and therefore gun powder to the extent of 30 tbs. could be kept by him without a licence. Now, the question is that, in order to attract this exemption, an enquiry must need be made by a Police Officer, or, some relevant authority, so that the facts in regard to quantity of gun powder and the probable use to which the gun powder will be applied may be revealed, or found out. The prayer of the petitioner is that the respondents may be restrained from demanding any licence for the explosives and that the respondents should be stopped from objecting to the use of the explosive. As far as the possession of explosives permitted under rule is concerned, there can possibly be no quarrel, but, whether the petitioner was keeping 30 tbs., or, more, is surely a matter, which would require a sort of investigation, or, enquiry, so that the police can be satisfied that the petitioner was working within the limits of law. To such extent, we cannot grant any relief to the petitioner, by directing the respondents not to make any enquiry, or demand any licence from the petitioner, No doubt, if the explosive hept by the petitioner are within the limits prescribed by rule 83, no penal action can be taken.

The next point urged by the petitioner is that he had earlier been sent up in a case for possession of explosives before the Special Court of Sind at Karachi, and Mr. Justice Fakhruddin H. Shaikh had acquitted him of the offence. A copy of the order has been placed before us, and we find that this acquittal was a result of withdrawal of the case by the Government. What is more that we have no means of knowing as to how much was the quantity of explosive that was the subject‑matter of that case. This order of Mr. Justice Fakhruddin H. Shaikh cannot, therefore, be held to be supporting this petition. The petitioner has also relied on a consent order passed by a D. B. of this Court in C. P. No. 912/1981. The pleading in this petition have not been placed on the record, so that we have no means of knowing as to what were the points of dispute in that case. In any case, this was a consent order, and we need say no more.

We dismiss this petition, but subject to the observations contained hereinabove in relation to the limits of explosive which the petitioner, or, as a matter of that, any person could keep.

M. B. A. Petition dismissed.

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