IMPORTANT POINT
"Conscious possession" has been duly proved to establish accusations under TADA and Explosive Substances Act and Rules against the appellant by prosecution.

Headnote:Terrorist and Disruptive Activities (Prevention) Act, 1987-Sections 4 and 5-Explosive Substances Act, 1908-Section 9-B-Explosive Rules, 1985-Rule 115-Appellant found guilty of offences under-Appeal to Supreme Court-Contention that "conscious possession" has not been proved-Whether sustainable in the facts and evidence of this case? (No)-Recording of confessional statement in two parts upheld-Evidence of PW 4 believed-Case law referred -Result -Appeal dismissed.
       Held : Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that the accused was owner of the premises. It has not even been remotely suggested that somebody else kept the articles, without his knowledge. (Para 22)
       Held further : It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 5 is not attracted. The expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes. The word conscious means awareness about a particular fact. It is a state of mind which is deliberate or intended. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. The word possession means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his firearm in his mother s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD). Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. (Paras 23 to 28)
       Held on evidence : There is no reason to discard the evidence of PW-4, and The confessional statement. (Para 31)
       Held finally : In S.N. Dube v. N.B. Bhoir and Ors. (2000 (2) SCC 254) it was held that neither Section 15 of the TADA Act nor Rule 15 contemplates recording of confessional statement in two parts or giving time to the person making a confession to think over and re-consider whether he still wants to make the statement in spite of being told that he is not bound to make it and that it can be used against him. The ratio of this decision has full application to the facts of the present case. In view of these findings, it is not necessary to go into the other question whether the past transactions come within the umbrella of Section 5, though prima facie that appears to be the correct position. That being the position, the appeal is without merit and deserves dismissal, which we direct. (Para 32)

JUDGMENT

Arijit Pasayat, J.-Appellant was found guilty of offences punishable under Section 5 of Terrorist and Disruptive Activities (Prevention) Act 1987 (in short the "TADA Act"), Sections 4 and 5 of the Explosive Substances Act, 1908 (in short the `Explosive Act ) and Section 9-B of Explosives Act, 1884 (in short the `Act ) read with Rule 115 of Explosive Rules, 1983 (in short the `Rules ).

2. Prosecution case which led to the trial of the accused who was charge sheeted along with five others in a nutshell is as follows:

3. On 19.11.1990 complainant Ram Niwas (PW-7), S.H.O., P.S. Moti Dungri, Jaipur filed a written report Ex.P/10-A through Shri Sanwat Singh on the basis of which FIR Ex.P/138 was registered at police station Moti Dungri, Jaipur stating that on 19.11.1990 at about 8.15 a.m. complainant Ram Niwas Yadav along with the driver Ram Pratap of the official vehicle were patrolling. At 9.30 a.m. Ram Niwas received information from Mukhbir that the appellant at his residence plot No. A-4, Gupta Bhawan, Deepak Marg, had illegally kept explosives in huge quantity without licence at the godowns and under ground room and at the upper story of his house. On this information, Ram Niwas called Prabhu Dayal A.S.I., Sampat Singh ASI, Sanwat Singh H.C., Jaggu Ram G.C., Gordhan Lal, Ramswaroop, Nand Singh S.I., Suraj Narayan ASI, Bhagwana Ram L.C., Girdhari Lal, Jawahar Lal, Rohitash Kumar from the police stations and the Deputy Controller of Explosive, Adarsh Nagar, Jaipur, was also called. At 10.30 a.m. Ram Niwas along with the above officials, Deputy Controller and independent witnesses Abdul Latif and Amardeen gathered at a place, C.O. Adarsh Nagar Sunder Lal S.H.O. Police Station, Adarsh Nagar, Chain Singh, Addl. S.P., Jaipur city were also informed, who came over. The search of the Gupta Bhawan along with the above officials was conducted. During the search, appellant was also present and during the search at the back of his house from godown No. 1, 149 bags and 69 bags containing Barium nitrate powder, 2 bags containing blue coloured powder (explosive substance), 1 bag containing powder chips were found. During the search of godown No. 2, 7 bags of white crystalline powder (Sodium nitrate) and 40 plastic bags containing brown coloured powder. 2 bags containing brownish coloured powder, 1 bag containing gum, 1 bag containing gandhak powder and 1/2 bag also containing gandhak powder were found. During the search of godown No. 3, 10 big iron drums and 7 small drums containing Aluminium powder, 14 bags containing other Aluminium substances, 16 plastic bags containing kusturi coloured shining substance, 25 plastic bags containing shining substance and 1 bag containing 1/2 sinduri colour powder were found. During the search of godown No.4, 18 bags which were full and 2 bags which were half filled containing yellow Sulpher powder and 2 1/2 bags containing yellow coloured mixture and sulphure, 48 bags containing kalmishora were found. During the search of godown No. 5, 141 bags white coloured powder each bag weighing 15 kilogram and on each bag Calcium ammonium nitrate written were found. During the search of godown No. 6, 176 bags were found, each bag contained 50 kilograms of powder on which Calcium ammonia nitrate was written were found. Thereafter, the underground room of the house of the appellant was searched and 262 cartons of safety fuse were found. Each carton contained 550 meter fuse wire and 18 cartons contained Tiger Brand Commercial safety fuse and each had 150 coils. The length of each coil was 7.32 meters. Thereafter, the room above the godowns was searched and from the room which had an almirah in which big paper cartons containing 50 kilogram explosive, gelatine were found. From the brown packets 10 packets containing 500 electric detonators were found, while the small carton contained 5200 detonators and all these were explosive substances. All the above items were sealed separately and taken into custody and from

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2003 Supreme(SC) 960

IMPORTANT POINT"Conscious possession" has been duly proved to establish accusations under TADA and Explosive Substances Act and Rules against the appellant by prosecution.

Cases Referred (4)

IMPORTANT POINT
"Conscious possession" has been duly proved to establish accusations under TADA and Explosive Substances Act and Rules against the appellant by prosecution.