Holding

The conviction under Section 5 of the TADA Act is set aside, while the conviction under Section 25 of the Arms Act is maintained.

Summary

During interrogation in a dacoity case, the appellant disclosed the location of a pistol and two cartridges, which were subsequently recovered. The armourer's report confirmed the pistol was functional but said nothing about the cartridges, which were not sealed. The Designated Court convicted the appellant under Section 25 of the Arms Act read with Section 5 of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and sentenced him to five years' rigorous imprisonment. On appeal, the Supreme Court held that Section 5 of TADA requires possession of both arms and live ammunition, and the prosecution failed to prove the cartridges were live; therefore, the conviction under TADA was set aside. However, the conviction under Section 25 of the Arms Act, which requires only possession of an arm, was upheld, and the sentence was reduced to time already served, leading to the appellant's release.

Issues considered

Whether a person can be prosecuted under Section 5 of the TADA Act for arms recovered on the basis of his disclosure statement.
Whether the arms and ammunition recovered must be serviceable and live to attract liability under Section 5 of the TADA Act.
Who bears the burden of proving that the recovered cartridges constitute live ammunition as contemplated by Section 5 of the TADA Act.

Legislation cited

Arms Acts. 25, s. 2(b)
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 19, s. 5

Subjects

TADAArms Actpossessionlive ammunitionburden of proofcriminal appealconvictionsentence reduction

Judgment

A SURINDER
\',

THE STATE OF HARYANA

MAY 1. 19'!4

B IR.M. SAHAI AND FAIZAN UDDIN, .1.1.J

Terrorist and Di.1·11lptivc Activities (Prevc11tion) .Act, 19~7: Anns
Act-Section 5/2~Accused 111aking disclosur:: state111en 1-Recovery of a pis-
tol and two ca1tridges on the basis of the staten1en!-A11 1ourr:r's report-Pistol
1

C in ~vorking orde1~0 niention aborll the ca1tlidges-No proof tlzat ca1tridges
were live-Accused det:n1ed to be in possession of anns only-Not to be con-
victed under TADA-Could be convicted on1y under Anns Act.

During the cour~e of his interrogation in a dacoity case the appellant
made a disclosure statement on the basis of which a pistol and two
D cartridges were recovered. The Armourer's report was to the effect that the
pistol was in working order, but no mention was made about the
cartridges. The Designated Court held the appellant guilty ar.d convicted
him under section 25 or the Arms Act read with section 5 or the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (TADA) and sentenced
E him to five years rigorous imprisonment. Against lite said order, appellant
prel'erred the present appeal.

Partly allowing the appeal, this Court

HELD : 1. A person could be prosecuted for an offence under Section
f 5 or the TADA Act only ir he was could to be possession or both arms and
ammunition. If the car!ridges are ~xcluded because they were not live, it
has to be held that the ap,ellant .was not in possessed or arms and
ammunition as contemplated under Section 5 of the TADA Act. [865-D)

2. In the instant case, the report submitted by the Armourer, does
G not n1ake a mer.lion of cartridges. Fu!thcr in his depostion he stated that
the articles "'re handed over to him in open condition. This is supported
b)' the statement of the lnYestigating Otlicer who in his cross-examination
admitted -that pistol and cartridges "·ere uot sealed. In the absence of
sealing of these materials serious doubt is cast on the prosecution. In any
H case even assuming that the pistol was in working order and therefort" it
862
SURINDER LSTATEOFHARYANA 863

was arms, the prosecution could succeed only if the cartridges are held to A
be ammunition. It has been defined in clause (!J) of Section 2 of the Ar111s
Act to mean ammunition for any firearms etc. A cartridge can be a1nn1uni·
tiun for any tirearms if it is live. It was therefore, incumbent on the
prosecution to prove that the cartridges recovered· on sho\\oing or the
appellant were live. But no evidence was led in this behalf. The Armourers'
report could not establish it as it was silent. In the absence of any evidence
B
or material on record to establish that the cartridges were live, they were
liable to be excluded and the appellant could be deemed to be in possession
~
of arms only. [864-H & 865-A-C]

3. The conviction of the appellant under Section 5 of the TADA Act
is >et aside, but his conviction under Section 25 of the Indian Arms Act is
c
maintained. He has already been in jail for nearly four years. The sentence
is, therefore, reduced to the period already undergone: [865-E]

CRIMINAL APPELLATE JURISDICTION:_ Criminal Appeal No.
233 of 1994. D
,
From the Judgment and Order dated 19.2.1994 of the Additional
Judge, Designated Court, Kaithal in Sessions Case No. 47/D/91.

S.R. Bhat for the Appellant.
E
K.C. Bajaj and Ms. Indu Malhotra for the Respondent.

The following nrder of the Court was delivered :

This appeal under Section 19 of the Terrorist and Disruptive Ac·
tivities (Prevention) Act, 1987 (for short 'the TADA Act') directed against F
the judgment and order of the learned Additional Judge, Designated
Court, Kaithal (Haryan~), raises three questions of law, one, whether a
person can be prosecuted under Section 5 of the TADA Act for recovery
of anns un his showing, two, \vhether the arms and ammunition which art::
recovered from the possession should be serviceable and live in order to
G
attract Section 5 and last, on whom the burden lies to prove that the arms
and ammunition were such as was contemplated by Section 5 of the Act.

The appellant was prosecuted under Section 25 of the Indian Arms
Act read with Section 5 of the TADA Act. According to the prosecution
' ~
when interrogation of the appellant was going on in a dacoity case in H

-"
864 SUPREME COURT REPORTS (1994] 3 S.C.R.

A connection with FIR No. 370 on 24.1.1.1990, the accused ivade a disclosure f
s:atement telling the Inspector that he had kept burried on pistol and two
cartridges of .12 bore by the side of the kotha of Raj Kumar and Siwan
Kaithal Road. On his statement the aforesaid pistol and the cartridges are
stated to have been recovered on 14.2.1991. They were sent on 16.3.1991
to the Armourer who in his report stated that the pistol was in working
B order. No mention was made about cartridges. The Designated Court after
considering the evidence cf the recovery and other witnesses recorded the
finding that the recovery was established and the arms and ammunition
having been recovered at the instance of the appellant, he was in possession
of it within the meaning of Section 5 of the TADA Act, consequently held
c him guilty and convicted him under Section 25 of the Indian Arms Act read
with Section 5 of the TADA Act and sentence him to undergo rigorous
imprisonment for a period of five years.

Shri S. Ravindra Bhat, the learned counsel for the appellant, urged
D that the expression 'is in possession' used in Section 5 of the TADA Act
should be construed narrowly and it should be confined to those cases
where the recovery is made at the time of arrest. According to him, it
should not be given an extended meaning so as to apply to even those cases
where the arms and ammunition are recovered at the showing of the
accused. The learned counsel emphasised that the word 'in' and urged that
•
E the Legislature having used the expression in a restricted sense it has to be
construed as being operative. at the point of time when recovery is made
and it does not extend to constructive possession or recovery of arms which
are recovered at the showing of the accused as such recoveiy of arms
cannot be said to be in possession of the accused. The learned counsel
F urged that if the Legislature would have intended to give a wide meaning
to the possession of arms and ammunition then it would have used the
expression 'possessed' instead of 'is in possession'. We do not consider it
necessary to decide this wider aspect as, in our opinion, the other submis-
sion made by the learned counsel that there being no evidence to show that
the cartridges which are stated to have been recovered at the instance of
G the appellant were live, it could not be treated as ammunition.

In the report submitted by the Armourer, there is no mention of
cartridges. Further, in his deposition he stated that the articles were
handed over to him in open condition. In other words, they were not ,.
H sealed. This is supported by the statement of the Investigating Officer who

/. -
SURINDER 1·.STATEOFHARYANA 865

1n his cross-examination admitted that pistol and cartridges were not A
sealed. In absence of sealing of these materials serious tloubt is cast on
prosecution. In any case even assuming lhat pistol \Vas in \Vorking order,
therefore, it was arms the prosecution could succeed only if the cartridges
are held to be ammunition. The word has been define,d in clause (b) of
Section 2 of the Arms Act to mean ammunition for any firearms etc. A
cartridge can be ammunition for any firearm if it is Jive. It was, therefore, B
incumbent on the prosecution to prove that the cartridges recovered on
showing of the appellant were live. But no evidence was led on this behalf.
The Armourer's report could not establish it as it was silent. It failed to
discharge it. In absence of any evidence or material on record to establish
that the cartridges were live, they were liable to be excluded ,and the c
appellant could be deemed to be in possession of arms only. In Paras Ram
v. State of Haryana, (1992] 4 SCC 662, it has been held by this Court that
a person could be prosecuted for an offence under Section 5 of the TADA
Act only if he was found to be possessed of both arms and ammunition. If
the cartridges are excluded because they were not iive, it has to be held D
that the appellant was not in possession of arms and ammunition as
contemplated under Section 5 of the TADA Act.

In the result, this appeal succeeds and is allowed in part and the
conviction of the appellant under Section 5 of the TADA Act is set aside,
but his conviction under Section 25 of the Indian Arms Act is maintained. E
He has already been in jail. We are informed that he is in jail for nearly
four years. The sentence is, therefore, reduced to the period already
undergone. The appellant who is in jail shall be released forthwith unless
he is required in any other connection.

G.N. Appeal allowed.