Important Point
Where no offence was registered against appellant and he was taken to Police Station for interrogation, he was not an accused in custody of police when he made disclosure statement so recovery under Section 27 of Evidence Act would not be applicable. But if evidence of witnesses was sufficient to prove conscious possession of explosive material in possession of appellant, his conviction u/s 5 of TADA Act and Section 5 of Explosive Substances Act, 1908 cannot be disturbed simply on wrong invocation of Section 27 of Evidence Act.

Judgment

Nanavati, J.-This appeal is directed against the judgment and order passed by the Additional Judge, Designated Court, Delhi, in Sessions case No. 149/93 (arising from FIR No. 190/93 of Tilak Nagar Police Station). The learned Judge has convicted the appellant under Section 5 of the TADA Act and also under Section 5 of the Explosive Substances Act, 1908. For the offence punishable under Section 5 of the TADA Act, the appellant has been sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5,000/-. For the offence punisha­ble under Section 5 of the Explosive Substances Act, he has been sentenced to suffer rigorous imprisonment for three years.

2. It was the prosecution case that the police had information that some terrorists of Punjab were to carry out explosions in various parts of Delhi and, therefore, they were keeping a watch at Vishnu Garden, Rajouri Garden and Tilak Nagar. A watch was also kept on appellant who was residing in a house bearing No. F-167, near Vishnu Garden, as some unknown persons were seen visiting his house. On 6.4.93, the police party consisting of Inspector Babu Singh, Inspector Nand Kishore and Sub-inspector Satish Kumar decided to raid the prem­ises in which they suspected that explosive material was kept. They, therefore, went to the house of the appellant and took him to the office of the Operation Cell in Lodhi Colony for interrogation. The appellant made a disclosure statement that Joginder Singh with whom he had good contacts had taken a house on rent bearing No. C-44, near Vishnu Garden and they had kept some explosive material in that room. He then took the police party to that room. It was opened by a key which was with the appellant. The appellant then pointed out a raxine bag containing one dalda tin containing 2 kgs. of RDX and one timer device. All these articles were seized by the police; and, after completing the investigation, charge-sheet was filed against the appellant and two others, namely. Gurmeet Singh and Joginder Singh. As Joginder Singh was not traced, the trial proceeded against Manoranjan Singh and Gurmeet Singh. The trial Court acquitted Gurmeet Singh as it was not proved that he had taken that room on lease and was in posses­sion of it. The trial Court believed the evidence of P.W. 1-Babu Singh, P.W. 7-Nand Kishore and P.W. 12-Satish Kumar and held that the appellant was in conscious possession of the RDX recovered from that room. The trial Court also believed that the said RDX was recov­ered on the basis of the disclosure statement made by the appellant. The appellant was, therefore, convicted as stated above.

3. It was contended by the learned counsel for the appellant that the trial Court committed a grave illegality in relying upon the disclo­sure statement alleged to have been made by the appellant as the appellant was not an ‘accused’ when he had made that statement nor was he in custody of police when he made that alleged statement. We find that no offence was registered against the appellant when he was taken to the police station for interrogation nor was any accusation made against him. He was not in custody of the police when he made the disclosure statement. The learned counsel is, therefore, right in his submission that Section 27 was not applicable in this case and recov­ery should not have been treated as having been made on the basis of the disclosure statement of the appellant.

4. But, we see no reason to disbelieve the evidence of the said three witnesses who have categorically stated that the key was produced by the appellant and with it the lock of the room was opened. The wit­nesses have also stated that after opening the room the accused had pointed out the raxine bag containing dalda tin from which RDX was found. From this evidence, it becomes clear that the appellant was in conscious possession of the said explosive articles. We are of the view that the appellant was rightly convicted by the trial Court. Hence, we se