Holding

The conviction under Section 5 of TADA, read with the Arms Act, is upheld; the evidence of police officers, the sealed seizure, and the ballistic report are sufficient despite the noted procedural deficiencies.

Summary

The appellant was seized at a hotel in a notified area under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) after police, acting on prior information, recovered a country‑made revolver with two live cartridges and cash. The seized items were sealed, placed in safe custody and, after a 15‑day delay, sent to a ballistic expert who reported the revolver to be in working condition; no licence for the weapon was produced. The appellant challenged his conviction on grounds that the search and seizure lacked independent panch witnesses, that the delay in forwarding the items compromised the expert report, and that the absence of an expert opinion on the cartridges’ functionality should preclude conviction. The Supreme Court held that police testimony is admissible and reliable, the non‑production of the panch witnesses did not vitiate the prosecution case, the delay was explained and not fatal, and possession of either the weapon or ammunition suffices for an offence under Section 5 of TADA. Consequently, the conviction and five‑year rigorous imprisonment were upheld and the appeal dismissed.

Issues considered

The admissibility and reliability of police officers' testimony in search and seizure proceedings under TADA.
The effect of non‑examination of independent panch witnesses on the prosecution case.
Whether a 15‑day delay in sending seized items to a ballistic expert undermines the expert report.
The necessity of an expert opinion on the working status of recovered cartridges for conviction under Section 5 TADA.
Whether possession of either a firearm or ammunition alone satisfies the elements of an offence under Section 5 TADA.

Legislation cited

Arms Act, 1959s. 25(1-B)(a), s. 3(1)
Code of Criminal Procedure, 1973s. 313
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 5

Subjects

TADAillegal possessionsearch and seizurepolice testimonyballistic expert reportpanch witnessesnotified areaArms Actcriminal appeal

Judgment

ANIL.@ ANDYA SADASHIV NANDOSKAR A
v.
STATE OF MAHARASHTRA

FEBRUARY 19, 1996

[DR. A.S. ANAND AND K.S. PARIPOORNAN, JJ] B

Criminal Law :

Terrorist and Disrnptive Activities (Prevention) Act, 1987: Section 5-
Unauthorised possession of ann and ammunitiort-l'roof of-Search and C
seizure of weapons from accused-Prosecution witnesses-Evidence
of~ogent and tntstworthy-Witnesses being police officials-Did not by itself
create doubt about their credit worthiness-Independent panch wit-
nesses-Non examination of-Satisfactorily explained-Recovered ar-
ticles-Despatch of for examination-Mere delay of 15 days-Not
fatal-Conviction proper. D
Possession of both ann and ammunition-Not necessary to estab-
lish-Possession of either sufficient-Recovered cartridges-"Working
status''-Expert opinion absence of~ould not militate against conviction of
the accused for an offence under Section 5-Anns Act, 1959. E
The appellant was convicted for an offence under Section 5 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Sec-
tions 3(1) and 25(1-B)(a) of the Arms Act, 1959 and sentenced to undergo
rigorous imprisonment for five years.
F
According to the Prosecution Case prior information received by
PW. 2 that the appellant, who was a wanted criminal, was likely to visit a
hotel, the police officials proceeded to the hotel. As soon as the appellant
entered the hotel, he was over-powered by PW. 1 who took him in his
clutches. Two panchas from the public were joined and in their presence, G
from the personal search of the appellant, country-made revolver loaded
with two live cartridges and currency notes were recovered by PW. 1 with
the assistance of PW. 5. A panchnama was prepared and the articles seized
and sealed at the spot. The appellant was arrested and the police party
took him to police station, where formal First InfQrmation Report was
registered. The sealed parcels containing the country-made revolver and H
807
J
./

808 SUPREME COURT REPORTS [1996] 2 S.C.R.

A the cartridges· was carried by 11\\'.'· 6 to the Forensic Science Laboratory.
The ballistic expert subsequently submitted his report according to which
the recovered revolver was found to be in a working condition. The appel-
lant possessed no licence for the revolver found ~n his possession and
could not explain the possession of the unlawful arm and ammunition. The
B
area, where the Hotel was situate, had been declared a notified area under _....
TADA. The appellant after completion of investigation, was se~t up for
trial.

On the basis of the evidence adduced on behalf of the. prosecution
including that of PWs. 1 to 6 the Designated Court came to the conclusion
C that the charges levelled against the appellant were fully established.

In appeal befor this Court, on behalf of the appellant it was con-
tended that search and seizure of the revolver and cartridges had not been
established by the prosecution by adducing any independent evidence; that
the non-examination of the two independent panchas was a serious lacuna
D detracting from the reliability of the prosecution case; that there was ~
serious contradiction in the evidence of PW. 2 and PW. 4 regarding the
signature of the witnesses on the label on the revolver which rendered the
entire search and seizure doubtful; that the delay in sending the fire arm
and the cartridges to the Ballistic Expert rendered his report vulnerable;
E and that in the absence of any clear opinion of the Ballistic Expert in his
report regarding the 'working status' of the two live cartridges, the convic-
tion of the appellant could not be sustained.

Dismissing the appeal, this Court,

p HELD : 1.1. There is no rule oflaw that the evidence of police officials
has to be discarded or that it sutlers from some inherent infirmity. 1
Prudence, however, requires that the evidence of the police officers, who are
interested in the outcome of the result of the case, needs to be carefully
scrutinised and independently appreciated. The police officials do not suf-
fer from any disability to give evidence and the mere fact that they are police
G officials does not by itself give rise to any doubt about their creditworthi-
ness. The evidence of all the 5 police officials has been carefully and critical-
ly analysed. There is nothing on the record to show that any one of them was
hostile to the appellant, and despite lengthy cross-examination their
evidence has remained unshaken throughout. These witnesses have
H deposed in clear terms the details ofthe trap that was laid to apprehend the
ANILv. STATE 809

appellant and the manner in which he was apprehended. Their evidence A
regarding search and seizure of the weapons from the appellant is straight
- forward consistent and specific. The factum of search and seizure of the
country-made revolver from the conscious possession of the appellant has
been established by the prosecution beyond any reasonable doubt.
[812-G-H, 813-A-B]
B
1.2. The evidence on the record shows that the raiding party made
sincere efforts to join with two independent panchas at the time of search
and seizure and they were so joined. They were also cited as prosecution
witnesses and summoned to give evidence. However, despite diligent efforts
made by the prosecuting agency to serve them they could not be located or
traced and therefore they could not be examined at the trial. Their non-
c
production at the trial thus has not created any dent in the prosecution
case. The prosecution cannot be accused of withholding these witnesses
since it made every effort to trace and produce them at the trial but failed
on account of the fact that they had left the addresses furnished by them at
the time of search and their whereabouts could not be traced despite D
diligent efforts made in that behalf. Therefore, there is no reason to 'doubt
the correctness of the prosecution version relating to the apprehension of
the appellant, the search and seizure by the raiding party and the recovery
from the appellant of the country- made revolver and cartridges for which
he could produce no licence or authority because of the non-examination of
the panch witnesses. [813-C-G] E

2.1. After the seizure of the revolver had been effected it was sent to
the ballistic expert through PW. 6 after a delay of 15 days. Not only this
delay has been satisfactorily explained but even otherwise in the estab-
lished facts of the case, this delay is of no consequence. There is an entry F
in the Muddemal Register, It clearly records that one country-made re-
volver with two live cartridges had been received in the malkhana. There
is also a reference to the deposit of currency notes which had also been
recovered by PW. 1 from the possession of the appellant at the time of
search. This entry thus unmistakably shows that after search and seizure
had been affected the recovered articles had been immediately placed in
'G
safe custody by PW. 2. The sealed parcels were carried and delivered in
the same condition to the ballistic expert by PW. 6. His evidence on this
aspect of the case has i:mained unchallenged in the cross-examination.
The report of the ballistic expert also shows that he ha~ received the parcel
in a sealed condition and that the seal tallied with the specimen of the seal H
810 SUPREME COURT REPORTS [1996] 2 S.C.R.
J
A as fixed on the requisition memo. Thus, there is no legitimate basis for the
argument that articles recovered from the appellant. might have been
tampered with till their examination by the ballistic expert or that the same
might have been substituted. The mere delay of about 15 days in despatch-
ing the articles for examination by the ballistic expert, in the facts and
B circumstances of this case, is therefore neither inordinate nor fatal and
does not affect the credibility of the prosecution case. (814-A-E]

2.2. The unauthorised possession of either an arm or the ammuni-
tion, in a notified area attracts the provisions of Section 5 of the Terrorist
and Disruptive Activities (Prevention) Act, 1987. The absence of any expert
C opinion about the ''working status" of the recovered cartridges, therefore,
cannot militate against the conviction of the appellant for the offence
under Section 5 of TADA for being found unauthorisedly in possession of
the specified fire arm in the notified area. (815-A]

Sanjay Dutt v. State, JT (1995) 5 SC 540, followed.
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
7213 of 1995.

From the Judgment and Order dated 27.4.95 of the Addl. Judge,
Designated Court, Bombay in Tada Spedal Case No. 71of 1992.
E
R.B. Thakare, A. Chimlkar and S.A. Syed for the Appellants.

S.M. Jadhav for the Respondents.

The Judgment of the Court was delivered by
F
DR. ANAND, J. This appeal under Section 19 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987, (hereinafter referred to as
'TADA'), is directed against the Judgment and Order dated 27.4.1995 of
the Addl. Judge, Designated Court for Greater Bombay convicting the
G appellant for an offence under Section 5 of TADA read with Section 3(1)
and Section 2(1-B)(a) of the Arms Act, 1959 and sentencing him to suffer
R.I. for 5 years. The appellant has called in question his conviction and
sentence through this appeal.

According to the prosecution story, on prior information received by
H PSI Varpe (PW-2) that the appellant herein, who was a wanted criminal,
ANIL v. STAIB [DR. ANAND, J.) 811

was likely to visit Sanket Hotel situate in the hamlet of Worli Koliwada, A
Bombay, the police officials of Dadar Police Station proceeded to Sanket
Hotel on 1st of April, 1992, at about 9.00 P.M. As soon as the appellant
entered the hotel, he was over-powered by PSI Sawant (PW-1) who took
him in his clutches. Sanjay Kashinath and Arjun Padmathali, two panches
from the public were joined and in their presence from the personal search B
of the appellant, a country made revolver loaded \vith two live cartridges
and cash amount of Rs. 1230 were recovered by PW 1 with the assistance
of PSI Patki PW 5. A panchnama Ex.15 was prepar.ed and the articles
seized and sealed at the spot. The appellant was arrested and the police
party took him to police station Dadar, where formal FIR Ex.PU was
registe~ed. The sealed parcels were handed over by PW 2 for safe custody C
to PI Administration, Shri Karnath. The parcel containing the country-
made revolver and the cartridges was carried by Police Naik Ravindra
Ranganath (PW- 6) to the Forensic Science Laboratory. The ballistic
expert subsequently submitted his report Ext.P-17, according to which the
recovered revolver was found to be in a working condition. The appellant D
possessed no licence for the revolver found in his possession and could not
explain the possession of the unlawful arm and ammunition. Vide notifica-
tion, Ext.18 the area, where Sanket Hotel was situate, had been declared
a notified area under TADA. The appellant after completion of investiga-
tion, was sent up for trial.
E
In support of its case, the prosecution examined 6 witnesses and
tendered in evidence various documents including the FIR, Ex.11, the
report of the ballistic expert Ext. P-17, the notification, Ext.18. Out of the
6 prosecution witnesses examined at the trial, PW-1 PSI Sawant; PW-2 PSI
Varpe, PW-3 PI Hadap, PW-4 PI Gaikwad and PW-5 PSI Patki were the F
meiµbers of the raiding party. PW 6 had carried the sealed parcel to the
ballistic expert. The appellant, in his statement recorded under Section 313
Cr.P.C denied prosecution allegations against him and pleaded false im-
plication. The trial' court analysed the evidence on the record and found
that even though PW 1 to PW 5 were all police officials, nonetheless their G
evidence was congent, trustworthy and reliab1e and suffered from no
infirmity. The trial court found that the prosecution had established satis-
factorily that the area from where the .appellant was apprehended
alongwith the country-made .32 bore revolver pistol, which was in his
conscious unauthorised possession, had been declared a notified area and
since according to the report of the ballistic expert.Ext.P-17, the fire arm H
)
812 SUPREME COURT REPORTS [1996] 2 S.C.R.

A recovered from the possession of the appellant was in a working condition,
he was guilty of an offence under Section 5 of TADA in view of the law
laid down by the Constitution Bench of this Court in Sanjay Dutt v. State,
JT (1994) 5 SC 540.

B Mr. Thakare, learned counsel for the appellant firstly, submitted that
search and seizure of the revolver and cartridges had not been established
by the prosecution by adducing any independent evidence, and went on to
urge that the non-examination of Sanjay Kashinath and Arjun Padmathali,
the two independent panchas, is a serious lacuna detracting from the
reliability of the prosecution case, learned counsel for the appellant further
C submitted that there was a serious contradiction in the evidence of PW 2
and PW 4 regarding the signature of the witnesses on the label on the
revoJver and in· this connection referred to the statement of PW~4 (P.24 of
the Paper Book), wherein it is stated by PW 4 that ''The fire arm to wit art.
1 and the cartridges to wit art. 4 were duly sealed and labelled separately.
D The panchas made their signatures on the label" and the statement of PW-2
(Page 16 of the Paper Book) wherein PW 2 has stated that "No labels
bearing the signatures of the panchas were pasted on the revolver (art. 1)",
and submitted that this contradiction rendered the entire search and
seizure doubtful. In our opmion the argument has· no merit. There is no
contradiction between the two statements referred to above. Whereas the
E question asked froni PW-2 was regarding pasting of the label bearing the
signatures of the witnesses on the revolver, the question asked from PW-4
related to the pasting of iabel on the parcel and not on the article. (revolver).

Indeed all the 5 prosecution witnesses who have been examined in
F support .of search and. seiruie were members of the raidingparty. They are . -.
all police officials. th.ere is, however, rio rule of law that tlie evidence of
police officials ha~ to be discarded or that it suffers from inherent infirmity.
Prudence, however, requires that tlie evidence of the police officials; who
are interested in the outcome of the result of the case, needs to be carefully
G scrutinised . and independently appreciated .. The police offi~ials do not
suffer from any disability to give evidence and the mere fact that they are
police officials does not by itself give rise to any doU;bt about their credit- .
worthiness. W ~ have carefully and. critically analysed the evidence of all the
5 police officials. There is nothing on the record to show that any one of
H them was hostile to the appellant and despite lengthy cross-examination
ANIL v. STATE [DR. ANAND, J.] 813

their evidence has remained unshaken throughout. These witnesses have A
deposed in clear terms the details of the trap that was laid to apprehend
the appellant and the manner ·in which he was apprehended. Their
evidence regarding search and seizure of the weapons from the appellant
is straight-forward consistent and specific. It inspires confidence and
learned counsel for the appellant has not been able to point out any B
serious, let alone fatal, infirmity in their evidence. In our opinion, the
factum of search and seizure of the country-made revolver form the con-
scious possession of the appellant has been established by the prosecution
beyond any reasonable doubt. The explanation given by the prosecution,
for the non-examination of the two panch witnesses, which is supported by C
the report Ex.24 filed by PW-4 PI Gaikwad is satisfactory. The evidence
on the record shows that the raiding party made sincere efforts to join with
them two independent panches at the time of search and seizure and they
were so joined. They were also cited as prosecution witnesses and sum-
moned to give evidence. However, despite diligent efforts made by the
prosecuting agency to serve them they could not be located or traced and D
therefore they could not be examined at the trial. In the face of the facts
stated in report Ext.24, the correctness of which has remained virtually
unchallenged during the the cross-examination of PW 4, the non-examina-
tion of the two panchas cannot be said to be on account of any oblique
reason. Their non- production at the trial thus has not created any dent in E
the prosecution case. The prosecution cannot be accused of withholding
these witnesses since it made ·every effort to trace and produce them at the
trial but failed on account of the fact that they had left the addresses
furnished by them at the time of search and their whereabouts could not
be traced despite diligent efforts made in that behalf. We, therefore, do p
not find any reason to doubt the correctness of the prosecution version
relating to the apprehension of the appellant, the search and sei~re by the
raiding party and the recovery for the appellant of the country-made
revolver and cartridges for which he could produce no licence or authority
because of the non-examination of the panch witnesses. We find that the G
evidence of PW 1 to PW5 is reliable, cogent and trustworthy.

Learned counsel for the appellant then submitted that the delay in .
sending the fire arm and the cartridges to the ballistic expert rendered the
report of the Ballistic Expert Ext. P-17 vulnerable and the conviction of
~e appellant unsustainable. We cannot agree. H
814 SUPREME COURT REPORTS [1996] 2 S.C.R.

A Of course, the seizure of the revolver had been affected on 1st of
April, 1992 and it was sent to the ballistic expert through PW 6 on
16.4.1992. Not only this delay has been satisfactorily explained but even
otherwise in the established facts of the case, this delay is of no conse-
quence. Ext.29, is an entry dated 1.4.1992 in the Muddemal Register. It
clearly records that one country- made revolver of .32 bore (brake frame
B type) with two live cartridges with markings. 32 "S & WKF" the case
property in this case, had been received in a sealed parcel in the Malkhana.
There i.s also reference to the deposit of cash amount of Rs. 1230, consist-
ing of Rs. five denomination currency notes which had also been recovered.
by Pl from the possession of the appellant at the time of search. This entry
C thus unmistakably shows that after search and seizure had been affected
the recovered articles had been immediately placed in the safe custody of
Shri Karnath, PW 1 Administtation by PW 2. The sealed parcels were
carried and delivered in the same condition to the ballistic expert by police
Naik Ravinder Ranganath, PW-6. His evidence on this aspect .of the case
D has remained unchallenged in the cross-examination. The report of the
ballistic expert also shows that he had received the parcel in a condition
that the seal tallied with the specimen of the seal as fixed on the requisition
memo. Thus, there is no legitimate· basis for the argument that the. arti~les
recovered from the appellant mtght have been tampered with till their
examin~tion' .by ·the .ballistic expert or that the .same might have been
E substit:Uted betwee~ 1.4.1992 aild 16'.4.1992. The nier~ delay of about 15
days in despatching the articles for eX.affiination by the ballistic expert, in
the facts and circumstances of this case, is therefore neither inordinate nor
fatal ~d does not effect the credibility of. the prosecution
' ' .
case.
.
_,

F Faced with this situation, learned counsel _for the appellant submitted
that in the absence of any clear opinion of the ballistic expert in his report
Ext.P-17, regarding the 'working status' of the two live cartridges, the
conviction of the appellant· could not be sustained. This argument also
needs a notice only t<;> be rejected: In Sanjay Dutt's case (supra) it has been
clearly laid down that with a view to hold and accused guilty of an offence
G under Section 5 of TADA, the prosecution is required to prove satisfac-
torily that the accused· was in conscious possession, unauthorisedly, in a
. notified area, of any arm and ~unitioD: of the specified description:. The
use of the word "and" was explained. by· the. Constitution Bench to be
disjunctive and that to sustain the c~nvictio~ ·for an. offence· under Section
H 5 TADA it is not necessary to establish that the accused possessed both
ANILv. STATE [DR.ANAND,J.) 815

the arm and ammunition. The unauthorised possession of either, in a A
notified area, attracts the provisions of Section 5 TADA. The absence of
any expert opinion about the status of the recovered cartridges, therefore,
cannot militate against the conviction of the appellant for the offence under
Section 5 of TADA for being found unauthorisedly in possession of the
specified fire arm, (Act 1), in the notified area.
B
In our opinion the prosecution has satisfactorily established the case
against the appellant. The trial court rightly convicted and sentenced him.
This appeal has no merits. It fails and is accordingly dismissed.

v.s.s. Appeal dismissed.

-
•

.....,
j