IMPORTANT POINT
The conviction of appellant under Sections 5 r/w 3(1) of TADA r/w Section 25(1-B)(a) of Arms Act is not affected due to 15 days delay in sending fire Arms to Ballastic expert or due to search and seizure by Police Officers or due to absence of any expert opinion about the status of recovered cartridges in the facts of this case. (p. 214)

JUDGMENT

Dr. Anand, J.-This Appeal under Section 19 of the Terrorist and Distruptive Activities (Prevention) Act, 1987, (hereinafter referred to as TADA ), is directed against the Judgment and Order dated 27.4.1995 of the Addl. Judge, Designated Court for Greater Bombay convicting the appellant for an offence under Section 5 of TADA read with Section 3(1) and Section 25(1-B)(a) of the Arms Act, 1959 and sentencing him to suffer R.I. for 5 years. The appellant has called in question his conviction and sentence through this appeal.

2. According to the prosecution story, on prior information received by PSI Varpe (PW-2) that the appellant herein, who was a wanted criminal, was likely to visit Sanket Hotel situate in the hamlet of Worli Koliwada, Bombay, the police officials of Dadar Police Station proceeded to Sanket Hotel on 1st of April, 1992, at about 9.00 P.M. As soon as the appellant entered the hotel, he was over-powered by PSI Sawant (PW-1) who took him in his clutches. Sanjay Kashinath and Arjun Padmathali, two panches from the public were joined and in their presence from the personal search of the appellant, a country made revolver loaded with two live cartridges and cash amount of Rs. 1230/- were recovered by PW1 with the assistance of PSI Patki PW5. A panchanama Ex. 15 was prepared and the articles seized and sealed at the spot. The appellant was arrested and the police party took him to police station Dadar, where formal FIR Ex. P11 was registered. The sealed parcels were handed over by PW2 for safe custody to PI Administration, Shri Kamath. The parcel containing the country-made revolver and the cartridges was carried by Police Naik Ravindra Ranganath (PW-6) to the Forensic Secience Laboratory. The ballistic expert subsequently submitted his report, Ext. P-17, according to which the recovered revolver was found to be in a working condition. The appellant possessed no licence for the revolver found in his possession and could not explain the possession of the unlawful arm and ammunition. Vide notification, Ext.-18 the area, where Sanket Hotel was situate, had been declared a notified area under TADA. The appellant after completion of investigation, was sent up for trial.

In support of its case, the prosecution examined 6 witnesses and tendered in evidence various documents including the FIR, Ex.11, the report of the ballistic expert Ext. P-17, the notification, Ext.18. Out of the 6 prosecution witnesses examined at the trial, PW-1 PSI Sawant, PW-2 PSI Varpe, PW-3 PI Hadap, PW-4 PI Gaikwad and PW-5 PSI Patki were the members of the raiding party. PW6 had carried the sealed parcel to the ballistic expert. The appellant, in his statement recorded under Section 313 Cr.P.C. denied prosecution allegations against him and pleaded false implication. The trial court analysed the evidence on the record and found that even though PW1 to PW5 were all police officials, nonetheless their evidence was cogent, trustworthy and reliable and suffered from no infirmity. The trial court found that the prosecution had established satisfactorily that the area from where the appellant was apprehended alongwith the country-made .32 bore revolver pistol, which was in his conscious unauthorised possession, had been declared a notified area and since according to the report of the ballistic expert Ext. P-17, the fire arm recovered from the possession of the appellant was in a working condition, he was guilty of an offence under Section 5 of TADA in view of the law laid down by the Constitution Bench of this Court in Sanjay Dutt v. State1.

3. Mr. Thakare, learned counsel for the appellant, firstly, submitted that search and seizure of the revolver and cartridges had not been established by the prosecution by adducing any independent evidence, and went on to urge that the non-examination of Sanjay Kashinath and Arjun Padmathali, the two independent panchas, is a serious lacuna detracting from the reliability of the prosecutio