The omission to put material circumstances on which the prosecution relies to base a conviction to the accused during their statements under Section 313 Cr.P.C. is fatal to the prosecution case and prejudices the defense of the accused, vitiating the trial.

JUDGMENT :

The appellants in the above appeals have been found guilty of offences punishable under Section 5 and 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and were sentenced to 5 years' Rl with fine of Rs. 500/- each; in default a simple imprisonment for 3 months was awarded. They were also sentenced under Section 5 of the Explosive Substances Act, 1908 and were sentenced to Rl for a period of 2 years with fine of Rs. 500/-; with default clause to suffer further imprisonment for 3 months if the fine was not paid. Both the sentences were to run concurrently.

2. The prosecution case, briefly stated, is that on 10.11.1990, when PW-4, Jagdish Narain, ASI, the incharge of the Highways police checking along with his colleagues received a wireless message that a maruti van which had met with an accident, had got away without stopping, therefore, these police were on the look out for the said van. It is stated that in the midnight at above 12.25. a.m., a maruti van bearing no. CIW-17 came from Jaipur-Sikandara side, the abovesaid police signalled to stop the said van and on checking the same, they found 4 cartons of gelatin and 31 packets of electronic detonators. The four appellants named above were the occupants of that van. They did not have any licence to carry the said explosives, hence, the van with the explosives was seized and the accused persons were taken into custody. A case under Sections 4 to 6 of the Explosive Substances Act, 1908 was registered in FIR no. 195/90. Subsequently it came to the knowledge of investigating agency that the place where the explosive material was sized, was a notified area declared under section 2(1)(f) of the TADA Act, hence, the provisions of the said Act were also invoked. After completing the investigation, a chargesheet was filed against the appellant and the TADA Court which tried the appellants after considering the material on record, accepted the prosecution case and convicted the appellant, as stated above. The appellants are therefore before us in these appeals. Even though many questions involving the facts are raised in these appeals, we are of the opinion that these appeals could be disposed of on a short point argued by the learned counsel for the appellants.

3. It is contended on behalf of the appellants that the foundation of the prosecution case was that these appellants were found travelling in a maruti van bearing no. CIW-17 which came from Jaipur Sikandara side to the checkpost and on stopping the vehicle and checking the same, the explosives in question were found. But this very material circumstance was not put to the accused persons when their statements were recorded under Section 313 Cr.P.C. which is an omission which goes to the root of the prosecution case. Learned counsel argued that the omission on the part of the prosecution to comply with this mandatory requirement of law had vitiated the entire trial, therefore, they are entitled to an acquittal. The learned counsel in support of this contention of theirs relied upon the judgments of this Court in Jaidev & Anr. v. State of Punjab, 1963 (3) SCR 489 , Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566 and State of Maharashtra v. Sukhdeo Singh & Anr., JT 1992 SC 73 : 1992 Crl. L.J. 3454.

4. Mr. V.N. Raghupathy, learned counsel appearing for the State, did not and could not on the basis of the material on record, dispute the fact that this material question was not put to the accused persons when their statements were recorded under Section 313 Cr.P.C. but he contended that this is not a fatal omission so as to vitiate the prosecution case. He contended that no prejudice has been caused to the appellants by this omission, hence, there is no force in the contention of the appellants on this point. He also contended that assuming for argument's sake that there is such omission then the matter should be remitted to the TADA court for trial in accordance with taw.

5. We have heard learn