10 October 1996
Supreme Court


Case number: Crl.A. No.-000553-000553 / 1996
Diary number: 79976 / 1996
Advocates: UMA DATTA Vs






DATE OF JUDGMENT:       10/10/1996




JUDGMENT:                          O R D E R      This appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter called TADA) is directed against the order of the Designated Court dated 28.2.1996 by which the appellant has been, convicted for an offence under Section 5 of TADA and sentenced to RI for five years and to pay a fine of Rs.  1,000 and  in default  to undergo  RI for two months more.      According to  the prosecution case on 1.5.1988 at about 11.30 a.m.  while ASI  Inder Singh  PW-3 was  on patrol duty along with  Head  Constable  Satbir  Singh  and  others,  he received secret information to the effect that two boys were standing at  the DTC bus stand at G.T Road and had with them unauthorised arms  and  ammunitions. The police parts, after unsuccessfully making  effortsto include, some passerbyes as witnesses arrived  at the  spot and  on being pointed out by the informer, apprehended the appellant. The appellant had a bag with  him and  from search of the bag, one country  made pistol and  three live  cartridges were recovered. A sketch, Ex. PW2/A, of the pistol and Ex. PW2/B of the cartridges was prepared. The  pistol  and  the  cartridges  were  into  two separate parcels  at the spot by PW-3 who also filled up the CFSL form  and attached  the specimen of the seal thereto. A rukka, Ex.  PW3/A, was  prepared  and  sent  to  the  police station through   Constable  Vijender Singh for registration of the  case. Formal  FIR  Ex.  PW1/A  was  registered.  The appellant was  arrested, On  return, to  the police station, the case  property was  deposited in  the Malkhana. The case property  was  later  on  sent  to  the  CFSL  through  Head Constable Jagdish Singh, PW4. According to the report of the CFSL, Ex. PW3/D, the pistol recovered from the appellant was found to be in working order and answered to the description of an arm under the Arms Act. The cartridges were also found to be  in live  and answered  the description  of ammunition under the  Arms Act.  After obtaining sanction under Section 39 of  the Arms  Act, the appellant was sent up for trial in the court  of Metropolitan  Magistrate  for  offences  under Section 25/54/59  Arms Act.  Learned Metropolitan Magistrate framed charges  against  the  appellant  on  23.1.1991.  The



appellant pleaded  not guilty  and claimed  trial. While the matter rested  thus,  the  learned  Metropolitan  Magistrate realised that the case was triable by a Designated Court and the matter  was referred to the Sessions Judge. The Sessions Judge, Delhi,  Presiding Officer of the Designated Court. At the trial  before  the  Designated  Court,  the  prosecution examined four  witnesses and  produced certain  documents on the records, including the report of the CFSL Ex. PW3/D. The learned  Designed   Court  took   judicial  notice   of  the notification dated  20.10.1987 and  by  the  order  impugned herein, convicted  and sentenced the appellant after finding that the  prosecution had  successfully established the case against the appellant.      Mr.  Uma  Datta,  learned  counsel  for  the  appellant firstly argued  that the  Designated Court  could  not  have taken cognizance  of the  case  merely  on  the  case  being transferred to  it by  the Session  judge by his order dated 7.2.1991 and that even otherwise cognizance was taken by the Designated Court on 7.2.1991 without any application of mind only on  the case  being assigned  to him. For what follows, there is no merit in this argument.      Section 14(1)  of  TADA  inter  alia  provides  that  a Designated Court may take cognizance of an offence, upon (i) receiving a complaint of facts which constitute such offence or(ii) upon a police report of such facts.      Since, the case was received by the Designated Court on assignment by  order of  the Sessions  Judge dated 7.2.1991, the Designated  Court did  not take cognizance upon a police report. Did  the  Designated  Court,  take  cognizance  upon receiving  the  complaint  of  facts  constituting  such  an offence?      The  order  of  the  Designated  Court  dated  7.2.1991 records "fresh  case received  by way  of assignment.  It be checked and  registered. Put  up on 21.3.1991 for hearing on charge."  Subsequently,  we  find  that  on  18.7.1991,  the Designated Court made the following order:      "From a  perusal of the material on      record,  a   prima-facie  case  for      charge under Section 5 of TADA Act,      1987  is   made  out   against  the      accused".      Thereafter, charges  under Section 5 of TADA was framed to which  the appellant pleaded not guilty and claimed trial and the  case was  posted for 25.11.1996 and the prosecution witnesses were  directed to  be summoned for that day. It is thus seen  that the  order  dated  18.7.1991(supra)  of  the Designated Court  unmistakably shows  that after  receipt of the case  file on  assignment from  the Sessions  Judge, the material was  perused by  the Designated  Court itself and a prima-facie case  under Section  5 of TADA was found to have been made  out. The  cognizance,  was  thus,  taken  by  the Designated Court on the basis of a complaint of facts, which disclosed the  commission of  the an offence under Section 5 TADA and  the order  dated 7.2.1991  read with  order  dated 18.7.1991 shows  that the  Designated Court applied its mind to the material on the record and then took cognizance.      Learned counsel  then submitted that the cognizance was even otherwise  not sustainable  in view  of Section 20-A of TADA as the essential requirements prescribed thereunder had not been complied with. We cannot agree.      Section 20-A  of TADA  requires prior  approval of  the Superintendent of  Police for  recording of  an offence  and lays down  that the  investigating machinery  cannot  spring into action without prior approval of the S.P. Sub-section 2 of Section  20-A prohobits  the Designated court from taking



cognizance of  any TADA offencewithout the previous sanction of the  Inspector General  of Police  or the Commissioner of Police, as  the case  may  be.  Sanction,  as  envisaged  by Section 20-A was no taken in this case. Section 20-A, it may be  noticed,  was,  brought  on  the  Statute  Book  by  the Terrorist and  Disruptive Activities  (Prevention) Amendment Act,  1993,   which  came   into  force  on  22.5.1993.  The occurrence  in   this  case   took  place  on  1.5.1988  and cognizance was  taken by  the Designated  Court  as  already noticed in  1991, much before Section 20-A was brought on to the Statute  Book. Section  20-A  TADA,  therefore,  had  no application to  the facts of the case. The submission of the learned counsel,  that since  sanction is part of procedural law, the provisions of Section 20-A would have retrospective operation, has  no merit. The provisions of Section 20-A can only have prospective application, with effect from the date the amendment  came  into  force.  They  cannot  effect  the pending cases  and cannot  invalidate the  investigation  or legal  proceedings   which  had  been  duly  instituted  and continued prior to the enactment of Section 20-A of the Act.      Mr. Dutta  then made  a submission that there was doubt about the  identity of  the case  property. Learned  counsel referred to  the statement  of PW-3  SI Inder  Singh and  in particular to  the sentence  that "thereafter  I sealed them into two  parcels with  the seals of IAS" and submitted that the arms  and ammunition which had been received by the CFSL were contained  in two sealed parcels which were sealed with the seals  of ’IS’  and not  ’IAS’. On  this basis,  it  was argued that the parcels which had been sent to the CFSL were not the  ones which  had been sealed by PW-3 at the spot. It appears to us, however, that the user of the alphabets ’IAS’ in the statement of PW3, is a typographical error. A perusal of the  statement of  PW3 shows that according to him, after he sealed  the two  parcels with  the seal of ’IAS’ he  also fileld up the CFSL form and attached thereto the specimen of the seal.  According to  the report  of the Forensic Science Laboratory, Ex.  PW3/D, the  two sealed  parcels, which were received were  found to  have intact  seals  of  ’IS’  which "tallied with  the specimen  seal" as contained in the form. PW4, HC  Jagjit Singh  deposed that on 6.5.1988 he had taken two sealed parcels from the Malkhana alongwith the CFSL form pertaining to  this case  "duly sealed with the seal of "IS" and had  deposited the  same in  the CFSL office on the same date. There is , therefore, no manner of doubt that the seal with which  the parcels had been sealed at the spot was ’IS’ and not  ’IAS’ (’IS’ presumably stands for PW3, Inder Sing). A reference  to the seizure memo would also be of advantage. In the  seizure memo,  which was prepared by Inder Singh ASI at the  spot in  the presence of Head Constable Satbir Singh and Constable Anang Pal Singh, it is recorded that the Katta and the  cartridges were  made into parcels and "duly sealed with the  seal of  IS". We, therefore, do not have any doubt about the  identity of  the case  property and  are  of  the considered opinion  that the  use of the expression ’IAS’ in the statement of PW3 is a typographical error.      The last  submission made by Mr. Dutta is that there is no allegation  in the  prosecution case  that the  arms  and ammunition had  been kept  by the  appellant for  use in any terrorist activities  and, therefore,  the conviction  under Section 5  of TADA  is untenable.  This  argument  again  is fallacious. It  has been  held by  the Constitution Bench of this Court  in Sanjay  Dutt Vs.  The State [1994(5) JT, 540] that to  sustain a conviction for an offence under Section 5 of TADA, the prosecution should establish (a) the possession of the arm which answers to the description contained in the



Schedule to  the Arms Act (b) the possession to be conscious possession and (c) the possession to be in the notified. area. All  the three  conditions are  fully satisfied in the present case. The conviction of the appellant for an offence under Section  5 of  TADA, thus,  suffers from  no infirmity whatsoever.      For what has been said above, there is no merit in this appeal, which fails and is hereby dismissed.