1. Conviction under TADA (P) Act, Arms Act, and Explosives Substance Act following recovery of weapons and explosives based on a disclosure statement. (Para 1 , 3 )
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1999 Supreme(SC) 1200
1999(8) Supreme 553
Supreme Court of India
(Designated Court, Bombay)
G.B. Pattanaik, S.P. Kurdukar & K.T. Thomas, JJ.
Prasad Ramakant Khade -Appellant
versus
State of Maharashtra -Respondent
Criminal Appeal No. 544 of 1999
Decided on 12-10-1999
Counsel for the Parties :
For the Appellant : Sushil Karanjkar, Advocate, for Ms. Asha Gopalan Nair, Advocate.
For the Respondent : S.S. Shinde, Advocate, for Gopal Balwant Sathe, Advocate.
Important Points
Important Point
It is not a must to examine second panch witness and if accused wants he could make proper application to get second panch witness produced and cross examined and as such merely because second panch witness was not examined, conviction under Section 5 of TADA cannot be found fault with.
It is not a must to examine second panch witness and if accused wants he could make proper application to get second panch witness produced and cross examined and as such merely because second panch witness was not examined, conviction under Section 5 of TADA cannot be found fault with.
Subject
Criminal Law - TADA (Terrorist and Disruptive Activities (Prevention) Act)
Act Referred
Headnote
TADA (P) Act, 1987-Section 5 -Conviction under-Conviction on basis of seizure of arms and ammunitions-Seizure pursuant to voluntary statement regarding concealment of arms and ammunitions-Plea that confessional statement not duly proved due to non-examination of second panch witness in Court and consequently seizure panchanama must fail-Not tenable-Examination of second panch witness not a must-Nothing prevented accused from making proper application to produce second panch witness and to have cross-examined him-No infirmity in evidence of first panch witness-Accused’s description of weapon as AK 56 tallied with seized weapon from number inscribed therein but ballistic expert gave correct description of weapon as AK 47-Seizure cannot be discredited on that count-Actual possession not criteria when seizure was from another person’s custody but accused was in control over incriminating weapons-Conviction warrants no interference. (Paras 8 to 14)
Legal Category Hierarchy
Table of Contents
2. Challenge to the validity of the disclosure statement, seizure process, weapon identification, and the requirement of actual possession for conviction under TADA. (Para 8 , 9 , 10 , 11 , 12 , 13 )
3. The court found the disclosure statement and seizure panchanama reliable, corroborated by witnesses and forensic reports, and determined the appellant maintained control over the weapons. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 )
4. Control over incriminating articles, even if stored at another's residence for safe custody, constitutes possession under the TADA (P) Act. (Para 10 )
5. Criminal appeal dismissed; conviction and sentence upheld. (Para 14 )
6. Is the examination of all panch witnesses mandatory to prove a seizure?
No. The examination of a single panch witness is sufficient if their evidence is reliable and not discredited, and the accused fails to request the production of other witnesses for cross-examination. (Para 8 )
7. Does actual physical possession of a weapon at the time of seizure determine conviction under Sections 5 and 6 of the TADA (P) Act?
No. If the accused placed the weapon at another's residence for safe custody, they maintain control over the articles, which satisfies the requirement for conviction. (Para 10 )
8. Does a discrepancy between the weapon's common name in a disclosure statement and the expert's technical description invalidate the recovery?
No. If the serial number on the weapon matches the number recorded in the disclosure statement and seizure panchanama, the recovery is valid regardless of technical naming discrepancies. (Para 9 )
9. Is a seizure considered to be at the instance of the accused if the items are physically handed over by a third party?
Yes, provided the accused led the investigating party to the location and directed the third party to hand over the incriminating articles. (Para 11 )
Judgment
S.P. Kurdukar, J.-The appellant along with Pravin Krishna Gawand (since deceased) and Sunil Dattaram Sawant (since absconding) were put up for trial for the offences punishable under Sections 3(3), 5 and 6 of the TADA (P) Act, 1987, under Section 7 read with Sections 25(1A) of the Arms Act and Sections 4 and 5 of the Explosives Substance Act, 1908. The Designated Court under TADA (P) Act, 1987, Greater Bombay, by its judgment and order dated 30th January, 1999 found the appellant guilty of the aforesaid offences and convicted him under Section 5 of the TADA (P) Act, 1987 (hereinafter referred to as “the Act”) and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/-. In default of payment of fine to undergo further rigorous imprisonment for six months. The appellant although convicted on other counts but no separate sentences were awarded to him for those offences. It is against this judgment and order passed by the Designated Court, Greater Bombay, the appellant has filed this appeal under Section 19 of the Act.
2. Briefly stated the prosecution case is as under :-
Several criminal gangs were operating in Mumbai and they indulged in organised crimes like extortion of money, murders, land grabbing and threats to civilians. At times, these gangs also involved in showing their muscle power to establish their supremacy over the other gang and in that process, they were involved in killing the members of rival gangs. It is alleged by the prosecution that there existed a rivalry between two gangs, one led by Arun Gawali and the othere by Dawood lbrahim. Ibrahim Parakar, the husband of the sister of Dawood Ibrahim was shot dead at his residence on 26th July, 1992 by the criminals allegedly belonging to Arun Gawali gang. Shailesh Haldankar and Bipin Shere who were allegedly belonging to the gang of Arun Gawali werer said to be suspects in the murder of Ibrahim Parakar. They were chased and beaten by the mob when they were trying to escape. They came to be arrested on 2nd September, 1992. As both these suspects sustained the injuries, they were admitted in the J.J. Hospital, Mumbai for treatment. Two armed police constables were also kept at the J.J. Hospital for necessary protection. During the night between 11th September, 1992 and 12th September, 1992, some members of the Dawood Ibrahim gang armed with weapons stormed the J.J. Hospital with a view to take revenge and in that process they pumped bullets in the body of Shailesh Haldankar who died in the ward itself. In that firing, two policemen who were on guard duty also sustained bullet injuries and ultimately died. A crime in that behalf came to be registered and the trial is said to be pending. This trial is commonly known as ‘J.J. Hospital shoot out case’.
3. The appellant and Pravin Krishna Gawand came to be arrested on 7th June, 1993. Pravin Krishna Gawand, however, died later on. The third suspect Bhopla @ Bhupinder is still absconding. The appellant who was remanded to police custody, during hos interrogation on 16th June, 1993 at about 10.30 a.m. expressed his desire to make a voluntary statement regarding the concealment of arms and ammunition. Pl Raje Bhosale (PW 7) who was investigating the crime in question arranged for two panch witnesses, of which PW 2 is examined. In the presence of the panch witnesses, the appellant made a statement which came to be recorded vide Ex. 10 (memorandum) and the free admitted translation thereof is as under :-
“In the last week of January, 1993, I had given one A.K. 56 Rifle and two loaded magazines and in the first week of February one pouch containing 3 hand grenades and two detonators to Pravin Gawand at his residence at 50 Tenement Building, 3rd Floor, Ambedkar Road, Parel, Mumbai for keeping with him. I will point out the said place and the said person, accompany me.”
Thereafter, the appellant, two panch witnesses, PI Raje Bhosale (PW 7) API Ghule (PW 1) along with other staff members
