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.

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