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PETITIONER: KHUDESWAR DUTTA

       Vs.

RESPONDENT: STATE OF ASSAM

DATE OF JUDGMENT:       02/04/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati, J.      The appellant  has been  convicted  by  the  Designated Court. Assam,  in TADA  Sessions Case  No.  126/93,  on  his pleading guilty  to the  charge  that  on  22.10.91  in  the notified area,  he was  found in  possession of two guns and two cartidges which were intended to be used for carrying on terrorist and disruptive activities.      Learned counsel  for the  appellant has  challenged the conviction on  the ground  that the Designated Court wrongly construed the  statement of the appellant as an admission of guilt.      The charge  framed against  the appellant was "That you on or  about 22.10.91  kept concealed  DBBL gun No. 7083 and 42250 with  12 Bore  two cartidges  (red in  colour) without licence or  authority for  using the  same in  terrorist and disruptive activities  and there  by  committed  an  offence U/s.5 of  TADA (p)  Act."  After  framing  the  charge,  the question that  was put  to  the  appellant  was  that  "  on 22.10.91 police/Military  recovered from  your  Engar  Khowa house SBBL Gun No. 7083 and SBBL Gun No. 42250 and ’120 Bore cartridge 2 Nos. led by you."      To this question, the appellant replied as under:      "It was  recovered from the house of other person which is situated  at a distance of one and half/two K.M. distance from my house. One Sri Atul Nath President, Anchalik Parisad of ULFA  directed to  keep that  in that  house. I  lead the Police but  I am  not extremist  and I am not connected with the occurrence".      Treating this  answer as  an admission  of  guilt,  the Designated Court  convicted him. Immediately after the order of conviction and sentence was passed, the appellant gave an application to the court complaining that he had no layer to assist him, that the court had also not appointed any Lawyer to assist  him and that he was fully ignorant about the case and had  no idea  about law.  He also stated that he had not understood anything  about what  the learned Judge had asked him. Thereafter,  he stated  that he  wanted legal aid to be provided to him. The Designated Judge, thereafter, passed an order upholding the submission of the learned Special Public

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Prosecutor that  the court  having passed the final order of conviction and  sentence had no jurisdiction to deal further with the  case. The  second order  is also challenged by the appellant.      We  are  of  the  opinion  that  the  Designated  Court committed a  grave error  of law in convicting the appellant on the  basis of  the answer  given by  him. It  was alleged against the appellant that the said fire arms were recovered from  his   Engar  Khowa   house.  While  replying  to  that allegation he  clearly stated that it was recovered from the house of another person situated at a distance of 1-1/2 to 2 kms. from  his house.  Though he  stated that "One shri Atul Nath, President,  Achalik Parishad of ULFA, directed to keep that in  that house"  he did  not say  that  Atul  nath  had directed him  to keep   those fire arms in that house. While admitting that  he led  the police  to that  house he denied that he  was an extrimist and that he was connected with the "occurrence". If these statements made by the appellant were considered carefully  by the  Designated Court it would have realised that  they did not consitute an admission of guilt. Only inference  that can  be drawn  from the answer given by the appellant is that he knew that the said two guns and the cartidges were  kept at  that place  but mere knowledge that they were  kept at  that place  cannot amount  to  conscious possession of  those things.  It is, therefore, abvious that on the basis of the said answer it was not proper to convict the appellant under Section 5 of the TADA Act.      We, therefore,  allow  these  appeals,  set  aside  the conviction under  Section 5  of the TADA  Act and direct the trial  court   to  proceed  further  with  the  trial  after providing legal  assistance to him.      In view of the facts and circumstances of this case, we direct the  Designated Court  to dispose of the case against the appellant as early as possible.