KARAN SINGHversusSTATE (DELHI ADMN.)

                             KARAN SINGH                                        A
                                     v.
                        STATE (DELHI ADMN.)

                           OCTOBER 10, 1996
                                                                                B
             [DR. AS. ANAND AND K.T. THOMAS, JJ.)


      Terrorist and Disrnptive Activities (Prevention) Act, 1987:

      S. 5-Accused found in possession of unauthorised countlymade pistol
and three live cartridges within the notified area-Designated Court convicled C
and sentenced him to suffer R.l. for five years-Held, accused was found in
conscious possession of unauthorised arms and ammunition within the
notified area-Discrepancy in statement of witness with regard to description
of specimen of the seal utilised in sealing the case property was typographical
erro~onviction and sentence upheld.                                             D

       S. 14(1)--Cognizance by Designated Court of an offence under the Act,
z.9on receiving a 'complaint of facts'-Accused sent for trial u/ss. 25/54/59.
Arms Act-Metropolitan Magistrate, finding that the matter was triable by the
Designated Court, referred it to Sessions Judge who transferred the case to
Designated Court-Designated Court took cognizance of the matter on              E
7.2.1991 and proceeded with the trial-Held, since the case was received by
the Designated Court on assignment by order of Sessions Judge, the Desig-
nated Court did not take cognizance upon police report-After receipt of the
case file from the Sessions Judge the Designated Court pernsed the maten·a1
and prima f acie found a case u/s. 5 to have been made out-Cognizance was       F
thus taken by the Designated Court on basis of complaint offacts which
disclosed the commission of an offence u/s. 5.

      S. 20-A-Approval of Superintendent of Police for investigation into an
offence under the Act and cognizance by the Court-Provisions whether G
perspective in operation-Held, since the occurrence in the case took place
much be/ore the insertion of the Section in the Act, it had no application to
the facts of the case-The Provisions of the section can have retrospective
operation w.e.f the date the amendment came into force.

      Sanjay Dutt v. The State, (1994) S JT, 540, followed.                     H
                                    405
    406                  SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    553 of 1996.

          From the Judgment and Order dated 15.3.96 of the Additional
    Sessions Court, Delhi in Sessions Case No. 56 of 1995.

B         Uma Datta and P.N. Gupta for the Appellant.

         P.C. Choudhary, Hemant Sharma, Ashok Bhan and B.K. Prasad for
    the Respondents.

          The following Order of the Court was delivered :
c
          This appeal under Section 19 of the Terrorist and Disruptive Ac-
  tivities (Prevention) Act, 1987 (hereinafter called TADA) is directed
  against the order of the Designated Court dated 18.2.1996 by which the
  appellant has been convicted for an offence under Section 5 of TADA and
D 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 aoi.
  while ASI lnder Singh PW-3 was on patrol duty along with Head Constable
  Satbir Singh and others, he received secret information to the effect that
E two boys were standing at the DTC bus stand at G.T. Road and had with
  them unauthorised arms and ammunitions. the police party, after unsuc-
  cessfully making efforts to 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,
F 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 sealed 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
G police station through Constable Vijender Singh for registration of the
  case. Formal FIR Ex. PWl/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
H order and answered to the description of an arm under the Arms Act. The        I,

                                                                                 I
                        KARAN SINGH v. STATE                          407

cartridges were also found to be in live and answered the description of A
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 Sections 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
                                                                           B
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, on 7.2.1991, transferred the case to
Shri B.N. Chaturvedi, Additional Sessions Judge, Delhi, Presiding Officer
of the Designated Court. At the trial before the Designated Court, the
prosecution examined four witnesses and produce9 certain documents on C
the record, including the report of the CFSL Ex. PW3/D. The learned
Designated 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.
                                                                             D
      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 Sessions 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     E
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.    F

      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?                                                                     G

      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 :                            H
    408                  SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.

A           "From a perusal of the material on record, a prim a- f acie case for
            charge under Section 5 of TADA Act 1987 is made out against
            the accused".

        Thereafter, charge under Section 5 of TADA was framed to which
  the appellant pleaded not guilty and claimed trial and the case was posted
B
  for 25.11.1996 and the prosecution witnesses were directed to be sum-
  moned for that day. It is thus seen that the order dated 18.7.1991 (supra)
  of th~ 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
C 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 an offence under Section 5 TADA and the
  order dated 7.2.1991 read with order dated 18.7.1991 shows that the
  Designated C6urt applied its mind to the material on the record and then
D took cognizance.

          Learned counsel then submitted that the cognizance was even other-
    wise not sustainable in view of Section 20-A of TADA as the essential
    requirements prescribed tbereunder had not been complied with. We
    cannot .~gree.
E
         :Section 20-A of TADA requires prior approval of the Superinten-
  dent of Police for recording of an offence and lays down that the inves-
   tigating machinery cannot spring into action without prior approval of the
  S.P. Sub-section 2 of Section 20-A prohibits the Designated court from
F taking cognizance of any TADA offence without 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 not 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,
G which came into force on 22.5.1993. The occurrence in this case took place
   on 1.5.1988 and congnizance was taken by the Designated Court as already
   notified in 1991, much before Section 20-A was brought on to the Statute
   Book. Section 20-A TADA, therefore, had on application to the facts of
   the case. The submission of the learned counsel, that since sanction is a
  part of procedural law, the provisions of Section 20-A would have
H retrnspective operation, has no merit. The provisions of Section 20-A can        {
                                                                                   I
                         KARAN SINGH v. STATE                            409
only have prospective application, with effect from the date the amendment     A
came into force. They cannot effect the pending cases and cannot in-
validate the investigation or legal proceedings which had been duly in-
stituted and continued prior to the enactment of Section 20-A of the Act.


                                                                                B
        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 con-
tained in two sealed parcels which were sealed with the seals of 'IS' and C
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 use of the alpahbets '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 D
seal of 'IAS' he also filled 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 E
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
Singh). A reference to the seizure memo would also be of advantage. In F
the seizure memo, which was prepared by lnder Singh ASI at the spot in
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 typo- G
graphical 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 H
    410                   SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.

A 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's
    v. T7te State, (1994) 5 JT, 540 that to sustain a conviction for an offence
    under Section 5 of TADA, the prosecution should establish (a) the posses-
    sion of the arm which answers to the description contained in the Schedule
B   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 not merit in this appeal, which
C fails and is hereby dismissed.
    R.P.                                                      Appeal dismissed.