IMPORTANT POINT
In the circumstances of the case it is not possible to hold that appellant was in possession of the articles alleged to have been recovered at his instance or that they were given to him by a terrorist organisation for alleged use and hence charge against him under Section 5 of TADA cannot be said to have been established beyond reasonable doubt.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act-Section 5-Conviction of appellant under-Based on recoveries of pistol, cartridges bomb and RDX in a polythene bag-Appeal to Supreme Court-No independent witnesses associated in recovery-Pistol not sealed nor its identity noted-Whether factum of recovery becomes doubtful? (Yes).
       Held : It, therefore, shows that the police made no effort to get any independent public witness at the time when the alleged recovery was made at the pointing out of A-1 and the only public witness examined, appears to be a person who was not only intimate but was also obliged to them. (Para 7)
       In our opinion the fact that the pistol alleged to have been recovered at the pointing out of the appellant was not sealed on the spot coupled with the fact that neither its number nor its make, etc. to fix its identity was mentioned in the recovery memo or in the FIR, raises considerable doubt rearding the factum of recovery. (Para 8)
       (ii) Evidence Act, 1872-Section 27-Disclosure statement-Admissibility-Recovery of polythene bag with pistol and other articles-Fact that it was given by a terrorist organisation for use whether admissible? (No).
       Held : What is admissible is the place from where the polythene bag containing pistol and other articles was allegedly recovered. The fact that some terrorist organisation had given the pistol and other articles to the appellant or its use would not be admissible. (Para 9)
       (iii) TADA-Section 5-Conviction under on the basis of recoveries-Recoveries made from an open place-Can it be said that appellant (accused) was in conscious possession of unauthorised by? (No)-Appeal allowed-Conviction under TADA set aside.
       Held : The other feature of the case is that the recovery was made from an open place which was accessible to all and everyone. PW1 NP Rai, has clearly admitted in his cross-examination that the recovery of the polythene bag was made from an open Gher in a lonely place, where anyone could easily come. (Para 10)
       Held (after case law) : The principle laid down in the decisions of this Court referred to above is fully applicable here and it is not possible to hold that the appellant was in possession of the articles alleged to have been recovered from his possession. (Para 11)
       Held consequently : For the reasons discussed above, we are of the opinion that it will not be safe to uphold the conviction of the appellant as the evidence adduced by the prosecution fails to establish the charge against the appellant beyond reasonable doubt. The appeal is accordingly allowed and the conviction of the appellant and also the sentence imposed upon him by the learned Sessions Judge (Designated Court), Meerut is set aside. The appellant is on bail. He need not surrender. His sureties and bail bonds are discharged. (Para 12)

JUDGMENT

G.P. Mathur, J.-This appeal has been preferred against the judgment and order dated 30.3.2001 of the Designated Judge (TADA) Meerut by which the appellant has been convicted under Section 5 of Terrorist and Disruptive Activities (Prevention) Act (for short "TADA") and has been sentenced to 5 years R.I. and a fine of Rs. 1,000/- and in default to undergo one month R.I.

2. The case of the prosecution, in brief, is that at about 7.45 p.m. on 26.1.1993, some miscreants hurled bombs at a police picket near Veterinary Hospital, Hapur Road, Meerut in which several security personnel received injuries and N.K. Mahender Prasad Sharma died. An FIR of the incident was lodged at 10.15 p.m. on the same night at P.S. Civil Lines, Meerut and a case was registered under Sections 147/148/307/302 IPC and Sections 4 and 5 of TADA. Some persons including Jabbar, Ayyub and the appellant Salim Akhtar @ Mota were arrested in connection with the aforesaid case and subsequently were taken on police remand. While in custody of the police, they made disclosure statements of having concealed some weapon, bomb and explosive material. Accordingly, in the morning of 24.3.1993, Inspector N.P. Rai of P.S. Lalkurti took the aforesaid persons to the place where according to their disclosure statement they had concealed the incriminating material. Inspector Shri Narayan Tripathi of P.S. Lisari Gate, some police personnel and two public witnesses namely, Anuj Kaushik (PW3) and Vipin also accompanied them. The appellant Salim Akhtar @ Mota (A-1) took them to a place by the side of Mansoor Denting Works on the road going to Lakkhipura. He took out a polythene bag from inside the mud which contained one pistol, cartridges, a moosli bomb and RDX weighing 1 kg. A recovery memo of the recovered articles was prepared on the spot and Anuj Kaushik (PW3), who is a photographer and who had accompanied the police party, also took photographs of the recovery. From there, the police party went to a place near Agarwal Tubewell on the same road and from there accused Ayyub (A-2) took out a polythene bag from inside the mud which contained 1 kg. RDX. Thereafter, accused Jabbar (A-3) took the police party towards South-west of the grove of Shri Kripal Singh near a kachcha rasta and dug out a polythene bag which contained a factory made hand grenade. Recovery memos of the articles recovered on the pointing out of A-2 and A-3 were also made. An FIR of the incident relating to recoveries made at the instance of the accused was lodged at 12.30 p.m. on 24.3.1993 at Police Outpost Pillokhari and the recovered articles were dispatched to PS Lisari Gate. S.P. Sharma, SHO, PS Lisari Gate took over investigation of the case on 27.3.1993. He prepared site plans (Ext. Ka 4 to Ext. Ka 7) of the places of recoveries, obtained diffusion report from Shri Satish Kumar and sent the recovered material to Forensic Science Laboratory Agra for expert opinion. After concluding the investigation, he obtained sanction from the District Magistrate, Meerut, for prosecution of the accused under Arms Act and Explosive Substances Act and also from Inspector General of Police for their prosecution under TADA and thereafter submitted charge-sheets against the three accused.

2A. The Designated Judge, Meerut, took cognizance of the offences and framed charges under Section 25 of the Arms Act, Section 5 of the Explosive Substances Act and Section 5 of TADA against the three accused. The prosecution in support of its case examined 12 witnesses and filed some documentary evidence. The articles recovered were also produced in Court. The appellant Salim Akhtar @ Mota in his statement under Section 313 Cr.P.C. denied the case of the prosecution and stated that the police had arrested him on 26.2.1993 when he was going to offer Namaz. He was detained in the police station for several days and was produced in Court on 12.3.1993 and during this period he was also beaten in the police station. He examined 5 witne

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2003 Supreme(SC) 438

Cases Referred (6)