IMPORTANT POINTS
(1) Search and seizure – Section 100 of Cr.P.C. applies when a search is to be made of a place and it does not apply to search of person.
(2) Arrest with fire-arms and cartridges – Entire evidence is to be looked in its totality and one single factor cannot be a reason to disbelieve entire prosecution case.

JUDGMENT

Gautam Kumar Choudhary, J.—This appeal is directed against the judgment of conviction and sentence of RI for 14 years under Section 3(5) of the POTA, and for the same period under Section 4 of POTA, RI for 7 years under Section 20(2) of POTA and RI for period of 7 years with fine each under Section 25 (1-A) and Section 26(2) of Arms Act and for the period of 3 years under Section 17(2) of the CLA Act in Special Case 21/2003(P).

2. As per the FIR, appellant Sub Zonal Commander of MCC, a banned terrorist organization, had come to his Village Toto along with his armed group on 16.02.2003. Office-in-Charge of Bhandra Police Station received the information and conducted a raid in which the appellant was arrested with a sten-gunin his hand, loaded with 15 live cartridges of 9 mm and it was marked at one place sten-gun STEN MK V 163387 and 5106 was also written. On search, one country made revolver loaded with 3 live cartridges of 0.38 bore, was also recovered from the left side waist of the accused and from his right side waist, one sten-gun magazine loaded with 16 cartridges of 9 mm was recovered. Bullet chain (Bindolia) 40 live cartridges of 9 mm was also seized.

3. The case was registered on the basis of the self-statement of the Officer-in-Charge, charge sheet was submitted, after cognizance and commitment accused/appellant was put on trial.

4. Altogether 15 witnesses were examined on behalf of prosecution and relevant document including seizure list, sanction for prosecution against accused, were adduced into evidence and marked as Exhibit 1–7. Arms and ammunitions seized were produced and material Exhibit Nos.I–V.

5. Judgment of conviction and sentence has been assailed principally on the ground that that there is no material to establish that he was a Zonal Commander or a member of band terrorist outfit, therefore, the conviction under POTA and CLA, is not sustainable and is liable to be set aside. With regard to the conviction under the Arms Act, it is argued that the arms were not sealed at the place of occurrence, therefore it cannot be said that before producing in the Court it was not tempered with. The seizure list witnesses have not been examined and therefore, an adverse inference is liable to be drawn under Section 114(g) of the Evidence Act.

6. Judgment of conviction and sentence has been defended by learned counsel on behalf of State. It is submitted that appellant was a dreaded extremist with criminal antecedents of 29cases of serious nature of being involved in extremist activities, including that of murder and extortion.

7. I find force in the argument advanced on behalf of learned counsel on behalf of State that Section 100 of the Cr.P.C. which requires search and seizure to be made in the presence of two independent witnesses, applies only when such search is made in closed places and not when physical search is made of the arrested person. In case of search of person, search and seizure is to be made as per the provisions under Sections 51 and 52 of the Criminal Procedure Code. Learned trial court has also taken note of the judgment passed by Hon’ble Supreme Court which holds that search and seizure cannot be disbelieved only for the reason that seizure list witnesses are police personnel. Apart from the informant (P.W. 1), the other members of the raiding party which comprised of the police and CRPF personnel were examined as P.W. 3, P.W. 4, P.W. 6, P.W. 7, P.W. 8,P.W. 10 and P.W. 11 have stated the manner in which search and seizure was made. There is no reason to disbelieve their account. No objection was raised at the time of production of the seized arms, and consequently the Sten-gun was marked as material Exhibit I. It has been held in the case of Sunder Singh Versus State Of Uttar Pradesh, AIR 1956 SC 411 that it is to be remembered that Section 100of the Cr.P.C. applies when a search is to be made of a place and it does not apply to search of person.

8. Ballistic report and sanction for pro