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PETITIONER: ANIL @ ANDYA SADASHIV NANDOSKAR .

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       19/02/1996

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) PARIPOORNAN, K.S.(J)

CITATION:  1996 SCC  (2) 589        JT 1996 (3)   120  1996 SCALE  (2)264

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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 5 of the Addl. Judge, Designated Court for Greater Bombay convicting the appellant for an offence under Section 5  of TADA  read with Section 3(1) and Section 25(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 PSI Varpe (PW-2) that the appellant herein, who  was a  wanted criminal,  was  likely  to  visit Sanket Hotel  situate  in  the  hamlet  of  Worli  Koliwada, 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 Pedmathali,two panches from the  public were  joined and in their presence from the personal search  of the  appellant, a  country made revolver loaded with  two live cartridges and cash amount of Rs.1230/ were recovered  by PW1 with the assistance of PSI Patki PWS. A panchnama  Ex.15 was  prepared 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.P11  was registered.  The sealed  parcels were handed over by  PW2 for  safe custody  to PI  Administration,  Shri Kamath. 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 possessed

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no licence  for the  revolver found  in his  possession  and could not  explain the  possession of  the unlawful  arm and ammunition.  Vide  notification,  Ext.-18  the  area,  where Sanket Hotel  was situate, had been declared a notifies area under TADA. The appellant after completion of investigation, was sent up for trial.      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 Varpa,  PW-3 PI Hadap, PW-4 PI Gaikwad and PW-5 PSI  Patki were  the members  of the raiding party. PW6 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  implication. The  trial  court  analysed  the evidence on the record and found that even though PW1 to PW5 were all  police officials,  nonetheless their  evidence was cogent,  trustworthy  and  reliable  and  suffered  from  no infirmity. The  trial court  found that  the prosecution had established satisfactorily  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 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 vs. State : JT 1994 (5) SC 540.      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  submitted  that there was a serious contradiction in the evidence of PW2 and PW4 retarding the signature of the witnesses on the label on the  revolver   and  in  this  connection  referred  to  the statement of  PW-4 (P.24  of the  Paper Book), wherein it is stated by  PW4 that  "The fire  arm to  wit art.  1 and  the cartridges  to  wit  part  were  duly  sealed  and  labelled separately. The  panchas made  their signatures on the label and the  statement of  PW-2 (Page  16  of  the  Paper  Book) wherein  PW2  has  stated  that  "  No  labels  bearing  the signatures of  the  panchas  were  pasted  on  the  revolver (part).", and submitted that this contradiction rendered the entire search  and seizure  doubtful.  In  our  opinion  the argument has  no merit.There is no contradiction between the two statements referred to above. Whereas the question asked from 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 label bearing the signatures of  the witnesses  on the  revolver, the question asked from  PW-4 related  to the  pasting of  label  on  the parcel and not on the article (revolver).      Indeed all  the 5  prosecution witnesses  who have been examined in  support of  search and  seizure were members of the raiding  party. They are all police officials. There is, however,  no  rule  of  law  that  the  evidence  of  police officials has  to be  discarded or that it suffers from some inherent infirmity.  Prudence, however,  requires  that  the

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evidence of  the police officials, who are interested in the outcome of  the result  of the  case, needs  to be carefully scrutinized  and   independently  appreciated.   The  police officials 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 doubt about their credit worthiness. We have  carefully and  critically analyzed  the evidence of all the  5 police  officials. 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 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 serious, let  alone fatal,  infirmity in  their evidence. In our opinion,  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.  The explanation given by the prosecution, for the son-examination of the two panch witnesses, which is supported by  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 summoned to give evidence. However, despite  diligent efforts  made by  the prosecuting agency to  serve them,  they could not be Jocated or  traced and 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  cross-examination of PW4, the non-examination 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  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 not find any 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. We find that the evidence of PW1 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 the  appellant unsustainable. We cannot agree.      Of  course,  the  seizure  of  the  revolver  had  been affected on  1st of  April, 1992  and it  was  sent  to  the ballistic expert  through PW6  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 consequence. 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  type)  with  two  live cartridges with  markings .32  "S & WKF the case property in

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this case,  had been  received in  a sealed  parcel  in  the Malkhana. There  is also  references to  the deposit of cash amount of  Rs.1230/-,  consisting  of  Rs.five  denomination currency notes which had also been recovered by PW1 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 played  in the  safe custody  of Shri Kamath, PI Administration by  PW2. 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  has remained unchallenged in the cross- examination. The  report of  the ballistic expert also shows that he  had received  the parcel  in a sealed condition and 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  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 between  1.4.1992 and 16.4.1992.  The mere delay  of about 15 days in despatching the articles for examination by  the  ballistic  expert,  in  the  facts  and circumstances of  this case, is therefore neither inordinate nor fatal  and  does  not  effect  the  credibility  of  the prosecution case. 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 to be rejected. In Sanjay Datt’s case  (supra) it has been clearly laid down that with a view to hold an accused guilty of an offence under Section 5  of   TADA,  the   prosecution  is   required   to   prove satisfactorily that the accused was in conscious possession, unauthorized, in  a notified area, of any arm and ammunition of the  specified description. The use of the word "and" was explained by  the Constitution  Bench to  be disjunctive and that to  sustain the conviction for an offence under Section 5 TADA  it is  not necessary  to establish  that the accused possessed both  the arm  and  ammunition.  The  unauthorised possession of  either, in  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 unauthorized  in possession of the specified fire arm, (Art 1), in the notified area.      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.