Case Note & Summary
The appeal arose out of a conviction under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) by the Designated Court No.11, Delhi. The prosecution case was that on secret information, police organized a raiding party and went to Libaspur bus stand, Dhaula Kuan, where they attempted to secure independent public witnesses for search and seizure, but none agreed. At about 1:30 p.m., the appellant was found and on search, a countrymade pistol loaded with one live cartridge and two other live cartridges were recovered from his person. The police prepared a sketch map, sealed the weapon and cartridges, deposited them in police Mal Khana, and after obtaining sanction initiated the case under Section 5 TADA. The prosecution examined six police witnesses, including the head constable, sub-inspector, assistant sub-inspectors, and mal khana incharge. The mal khana incharge deposed that the seized articles were received and kept in sealed condition until sent to the ballistic expert at BTP Unit, Old Police Line. The armorer, who had training from Bhopal and long experience, fired one of the seized cartridges from the pistol and found it in working condition. The Designated Court convicted the appellant and sentenced him to rigorous imprisonment for five years and a fine of Rs.500, with default rigorous imprisonment for 15 days. On appeal under Section 19 TADA, the appellant's amicus curiae raised three main contentions: first, conviction could not be based solely on police officials in absence of independent public witnesses; second, the armorer was not a proper expert and the pistol was not tested by a qualified ballistic expert; third, the appellant was falsely implicated because he was actually arrested from Rana Pratap Bag with one Luxman, and conscious possession of the arms had not been established. The Supreme Court examined the depositions and the judgment of the Designated Court. It held that the prosecution evidence was cogent and consistent, and that police witnesses' testimony is not liable to be discarded merely because independent witnesses were not examined, especially when the prosecution specifically attempted to procure them but failed. On the expert issue, the Court distinguished Abdula Pochamma v. State of A.P., where the nature of the alleged grenade had not been examined by a proper expert; here the armorer had technical competency certificate and armour technical course from Bhopal, long experience, and had actually test-fired the seized pistol. The Court therefore accepted him as an expert. Regarding conscious possession, the Court noted that the appellant did not claim that the arms were planted without his knowledge; his defense was false implication. Once conscious possession of unauthorized arms in a notified area under TADA is proved, Section 5's statutory presumption that they were intended for terrorist and disruptive activities applies, as held in Sanjay Dutt's Constitution Bench decision. The prosecution was not required to prove actual intent, and the appellant led no rebuttal evidence. Accordingly, the Supreme Court dismissed the appeal and affirmed the conviction and sentence.
Headnote
A) Criminal Law - Appreciation of Police Witnesses - Conviction may rest on testimony of police officials when independent public witnesses refused to cooperate - Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 5 - The prosecution led evidence of police personnel who arrested the appellant and recovered a countrymade pistol and cartridges from his possession. The appellant challenged conviction on ground of absence of independent witnesses. The Supreme Court held that police witnesses are not to be discarded merely because they are police personnel when the prosecution made efforts to secure independent witnesses but none agreed, and their evidence was cogent and consistent. Held: Designated Court rightly relied on police witnesses (Paras Not mentioned). B) Evidence - Expert Opinion - Armorer with technical training and experience qualifies as expert; test firing sufficient - Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 5 - The appellant argued that the armorer was not a proper expert and the pistol was not tested by a qualified ballistic expert. The Supreme Court distinguished Abdula Pochamma v. State of A.P. because in that case the nature of the alleged grenade was not examined by a proper expert. Here the armorer held a certificate of technical competency and armour technical course from Bhopal, had long experience, and actually fired one seized cartridge from the pistol finding it in working condition. Held: The armorer was accepted as an expert (Paras Not mentioned). C) Criminal Law - Statutory Presumption - Conscious possession of unauthorized arms in notified area triggers presumption of intended use - Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 5 - The appellant contended that conscious possession of arms and ammunition was not established. The Supreme Court noted that the appellant did not claim he was unaware of the arms in his pocket; his defense was false implication. Once conscious possession in a notified area is proved, the statutory presumption under Section 5 that the articles were intended for terrorist and disruptive activities applies, as held in Sanjay Dutt's Constitution Bench decision. Prosecution need not prove actual intent and the appellant led no rebuttal evidence. Held: Conviction upheld (Paras Not mentioned).
Issue of Consideration
Whether conviction under Section 5 TADA was valid based solely on police witnesses; whether armorer was competent expert; whether conscious possession and statutory presumption established
Final Decision
The Supreme Court dismissed the appeal and affirmed the conviction and sentence under Section 5 TADA imposed by the Designated Court
Law Points
- Conviction can be based on police witnesses if independent witnesses refused
- chain of custody of seized arms intact
- armorer with training and experience is expert
- conscious possession in notified area triggers presumption under Section 5 TADA
- no need to prove actual terrorist intent
- Sanjay Dutt followed
