Full Judgment Text
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CASE NO.:
Appeal (crl.) 325 of 2003
PETITIONER:
Mukhtiar Ahmed Ansari
RESPONDENT:
State (N.C.T. of Delhi)
DATE OF JUDGMENT: 21/04/2005
BENCH:
B.N. Agrawal & C.K. Thakker
JUDGMENT:
JUDGMENT
C.K. Thakker, J.
This appeal is directed against an order of conviction and sentence passed
by the Designated Court, New Delhi on February 4, 2003 and February 5, 2003
in Sessions Case No. 49 of 2001. The said case was registered against the
appellant under Section 5 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as ‘TADA’) as also under
the Arms Act, 1959 (hereinafter referred to as ‘Arms Act’). For the offence
under the Arms Act, the appellant was sentenced to undergo rigorous
imprisonment for three years and a fine of Rs.50,000, in default to undergo
R.I. for one year more. For the offence under TADA, he was ordered to
undergo rigorous imprisonment for ten years and a fine of Rs.5,00,000, in
default to undergo R.I. for one year more. Both the sentences were to run
concurrently. He was given benefit under Section 428 of Code of Criminal
Procedure, 1973 for the period already undergone by him as set off.
The case of the prosecution was that the appellant was found in possession
of several fire arms and ammunitions near Bahai Temple, Kalkaji, New Delhi,
on 11th December, 1993. The case was closely linked with another case of
kidnapping for ransom. According to the prosecution version, one Ved
Prakash Goel was a businessman of Gauhati, Assam. He was dealing in coal in
Gauhati and was doing business at Gauhati as well as at Calcutta. Mainly
supply of coal was to cement plants of Birla. His son Sanjay Goel was
having a factory of preparing paper drums in the name and style of Tushar
Packaging Private Limited, Siraspur, Delhi. According to the prosecution,
one Gandhi was also having business in Gauhati, where Ved Parkash Goel used
to do his business. The allegation of the prosecution was that said Gandhi
was a "Badmash" person and used to extract money (Chauth) from other
businessmen. According to Sanjay Goel, his father protested against
extraction of money and did not pay anything to Gandhi with the result that
there was tussle between Ved Prakash Goel and Gandhi. Ulfa extremists also
learnt about flourishing business of Ved Prakash Goel and they were also
behind him. Due to all those reasons, prior to three months from December,
1993, Ved Prakash Goel closed this business in Gauhati and continued to
operate from Delhi and Calcutta. He had, however, a feeling that he was
being chased in Delhi and Calcutta also.
On December 7, 1993, Ved Prakash Goel had gone to one of his friends Dr.
Surjit Mittra at D-11/70, Pandara Road, New Delhi, to attend birthday
party. He left his house at about 7 p.m. informing his servant that he was
going to Dr. Mittra’s house. He went there in his red Maruti car bearing
registration No. DL 2C E 1517. He did not come back till late night but the
family members were not worried since he used to get late in such parties.
Wife of Ved Prakash Goel, however, kept on waiting for him. For the whole
night Ved Prakash Goel did not turn up. In the morning of December 8, 1993,
therefore, Mrs. Goel, inquired Dr. Mittra who replied that Ved Prakash Goel
had left his place the previous night i.e. on December 7, 1993 around 9.15
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p.m. Thereafter several telephone calls were made to friends of Mr. Goel
but he could not be traced. At about 7.30 a.m., a telephone call was
received at the residence of Mr. Goel. The caller wanted to talk to Mrs.
Goel. He told her that Mr. Goel was kidnapped from Dr. Mittra’s residence
and a ransom of Rs. one crore should be arranged if he was wanted alive.
The caller also stated that when and where the money would be paid would be
told later on. From the voice it sounded as if it was Punjabi Jat voice.
The caller also stated that Ved Prakash Goel had harassed kidnapper’s
friend in Gauhati and had earned lot of money from Assam. A threat was
administered that if ransom is not paid or if the police is informed, Mr.
Goel would be killed. Sanjay Goel, son of Mr. Ved Prakash Goel informed the
police about the telephone call and expressed his doubt that ‘Goondas’ of
Gandhi had hatched up a conspiracy and his father had been kidnapped. He
also stated that if money is not paid, his father might be killed. He
further stated that the Maruti car in which his father had gone was found
parked outside the house of Dr. Mittra. The report was lodged on December
8, 1993 and First Information Report (FIR) was registered on the basis of
that report. Sub-Inspector Ram Mehar Singh sent report (rukka) at 11.00
p.m. after making an endorsement and the case was registered at about 11.30
p.m. on same day.
The kidnapper of Ved Prakash Goel made other calls at the residence of Mr.
Goel. The police mounted surveillance to know from which place calls were
made and came to know that they were being made from STD booth in Sector 7,
Panchkula, Haryana. After tracing the location of caller, police party of
Crime Branch of Delhi Police went to Panchkula on December 10, 1993 and
started keeping watch on the STD booth of Sector 7. At about 2 p.m., police
found that Mr. Goel was brought to STD booth by two persons. The moment
those two persons took Mr. Goel to STD booth, police immediately nabbed
them. They were Ata-ur-Rehman and Afroz Khan. The police also rescued Ved
Prakash Goel. Those two persons were interrogated and they disclosed that
Mr. Goel was kept in house No. 142, Sector 8, Panchkula, Haryana. The house
was then raided. Police recovered a rope, some tape, a stitched coffin,
some injection needles, distilled water, chemical panthalene, etc. from the
house. The two persons also stated that their gang leader was Mukhtiar
Ahmed Ansari (appellant herein) who had gone to Delhi and was staying in a
Guest House. As stated earlier, the place of receiving ransom amount was to
be informed to family members of Mr. Goel. The police, therefore, brought
those two persons to Delhi in the night of December 10, 1993.
On next morning, i.e. December 11, 1993, police made Ata-ur-Rehman talked
to the appellant - gang leader on telephone and got fixed Bahai Temple as
the place where ransom amount would be delivered at 12.00 noon. A red
colour Maruti car, bearing No. DL 2 CE 1517 belonged to Ved Prakash Goel
was obtained by Police. Two private Maruti cars were also arranged by the
Investigating Officer. The Police then went to Bahai Temple in civil
clothes. At about 12.00 noon, the appellant came in a silver colour Maruti
car to receive the ransom amount. The police had already laid a trap and
the appellant was apprehended. He was holding loaded rifle in his right
hand which was checked and found to contain one cartridge. It was seized.
He was interrogated. He produced one bag of green colour from his car which
was checked. One rifle of 22 bore, made in England, on the chassis of which
KD 05488 was written, one double barrel gun of 12 bore made in Italy, one
single barrel gun, in two parts were found in the said bag. One another bag
of black colour containing 50 cartridges of 12 bore and 20 cartridges of
306 calibre and 41 cartridges of .22 bore was also recovered. All weapons
and ammunitions were seized by police. Police also found one uniform set of
DSP of Haryana with cap, belt etc. from the car. The appellant-accused was
arrested and weapons were seized. Since they were recovered in a notified
area, accused was booked under the Arms Act as well as under TADA by FIR
No. 508 of 1993, Police Station, Kalkaji, New Delhi. The investigation
showed that accused was the master mind and gang leader in kidnapping Mr.
Ved Prakash Goel for ransom. Police checked the Guest Register of the hotel
in which the accused had stayed in Delhi. They also sent arms and
ammunitions to CFSL for examination and prepared challan and filed a case
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under the Arms Act and also under TADA. Accused was separately challaned
for the offences punishable under Sections 364A, 365, 387 read with 120B of
the Indian Penal Code for kidnapping Mr. Goel in FIR No. 456 of 1993 of
Police Station, Tilak Marg, New Delhi. Challan was filed in the present
case on April 19, 1994 under the Arms Act. On July 11, 1996, the Designated
Court held that the provisions of Section 5 of TADA were not attracted and
the accused was, therefore, not charged under TADA. The case remained only
under Section 25 of the Arms Act. Since the case was triable by a Court of
Magistrate, the Designated Court sent the case to the Court of Metropolitan
Magistrate who framed charge against the accused on September 4, 1996 under
Section 25 of the Arms Act. The prosecution, however, appealed against the
order of Designated Court and this Court vide order dated September 16,
1996, allowed the appeal filed by the prosecution and held that provisions
of TADA were attracted and Designated Court was not justified in observing
that TADA was not applicable. The Designated Court was, therefore, directed
to decide the case on merits. The case thus came back to the Designated
Court from the Court of Metropolitan Magistrate on December 5, 1997. The
charge was thereafter framed against the accused on January 16, 2001 under
Section 5 of TADA and the trial proceeded.
It may be stated at this stage that the appellant along with two others
were charged in the kidnapping case (Sessions Case No. 93 of 1997) which
resulted into acquittal on July 16, 1997 by the Additional Sessions Judge,
New Delhi.
The Designated Court after considering the evidence of prosecution
witnesses, defence witnesses and documents produced by the parties, held
that the appellant-accused was guilty of possessing fire arms and
ammunitions without licence and thereby he had committed an offence
punishable under Section 25 (1B) of the Arms Act. He was also held guilty
for consciously possessing fire arms and ammunitions without licence in the
"notified area" punishable under Section 5 of TADA and accordingly he was
convicted. After hearing appellant-accused and his counsel on the question
of sentence, the Designated Court awarded sentence as stated earlier.
The present appeal was placed for hearing on May 1, 2003 and it was ordered
that the appeal would be finally heard on re-opening of Court after summer
vacation. Hearing of bail application was adjourned. On July 22, 2003, when
the matter appeared on board, the learned Additional Solicitor General
prayed for time to supply paper books. On August 19, 2003, when the matter
appeared on board, it was submitted on behalf of the appellant that the
charge under TADA could not be substantiated and so far as conviction under
the Arms Act was concerned, the appellant had already undergone sentence of
three years. Taking into account the above facts, the Court passed the
following order :
"In the abovesaid circumstances, the application for suspension of sentence
is allowed and it is directed that during the hearing of this appeal, the
execution of sentence of imprisonment and recovery of fine shall remain
suspended subject to the appellant depositing half of the amount of fine
imposed on him and furnishing a solvent surety in the amount of Rs.5 lakhs
(Rupees five lakhs only) with two sureties each in an amount of Rs.2.50
lakhs (Rupees two lakhs fifty thousand only) to the satisfaction of the
trial court requiring the appearance of the appellant as directed by this
Court. The personal bond and the bail bonds to be furnished by the
appellant shall incorporate the following conditions also :-
1. That the appellant shall not leave the country and shall deposit
his passport, if any, with the trial court.
2. The appellant shall not leave the State of U.P. and the U.T. of
Delhi without informing the local police station of the place where he is a
resident.
3. The appellant shall not commit any offence during the pendency of
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this appeal or misuse the liberty given to him in any other manner
whatsoever.
The learned counsel for the appellant states that within a period
of two weeks, he shall furnish a list of documents which are also
required to be included in the paper book, under copy to the
learned counsel for the State, whereupon the State shall provide an
additional paper book containing those documents."
On February 21, 2005, an order was passed to list the matter for final
hearing in the end of March, 2005 or in April, 2005. That is how the matter
has been placed for final hearing.
We have heard learned counsel for the parties.
Mr. Sushil Kumar, learned senior counsel, appearing for the accused,
submitted that the Designated Court was clearly wrong and wholly
unjustified in holding the appellant guilty under TADA as also under the
Arms Act. He submitted that there was no evidence worth the name to connect
the appellant with the crime. The Designated Court has also erred in
convicting the accused relying on the prosecution case in kidnapping of Mr.
Goel in which he was acquitted by a competent criminal court. The grievance
of the counsel is that the Designated Court re-appreciated evidence in the
kidnapping case of Mr. Goel and observed that acquittal of the appellant-
accused was wrong and convicted him in the present case. The counsel also
contended that no prior approval as required by sub-section (1) of Section
20A of TADA had been obtained and proceedings were vitiated. The counsel
urged that counter version of the appellant-accused that he was neither
arrested from Delhi nor arms and ammunitions were found from him was
equally probable. From the evidence on record, it is clear, submitted the
counsel, that the accused was picked up from his residence at Panchkula and
was brought to Delhi. No arrest memo/panchnama was prepared when the
appellant was said to have been arrested which goes to support the case of
the accused that he was not arrested from Delhi. Prosecution witnesses also
supported the defence version. They were not declared "hostile" by the
prosecution. On their evidence also, the appellant could not have been
convicted. The evidence of defence witnesses was not appreciated in its
proper perspective by the Designated Court from which it was proved that
the day on which the alleged incident took place, the appellant was not
present at or near Bahai Temple, New Delhi. The investigation was not
‘above board’. The complainant himself was the investigating officer.
Recovery, seizure and sealing of weapons created serious doubts in the
light of the fact that they were shown to Press. It was, therefore,
submitted that the appellant-accused deserves to be acquitted.
The learned counsel for the respondent, on the other hand, supported the
order of conviction and sentence passed by the Designated Court. It was
submitted that the provisions of TADA had been complied with. The
kidnapping-case which resulted into acquittal of the appellant had nothing
to do with conscious possession of arms and ammunitions by the appellant at
Bahai Temple, New Delhi on December 11, 1993. The Designated Court
considered the facts of kidnapping case as the ‘background’ in which arms
and ammunitions were found from the appellant. It, therefore, cannot be
said that allegations of the prosecution had weighed with the Designated
Court in the present case. The Court, according to the respondent,
considered the evidence of prosecution witnesses as also defence witnesses
and found that the evidence of prosecution witnesses was reliable and
accordingly convicted him. The said order deserves no interference by this
Court.
So far as proceedings under TADA are concerned, in our opinion, the learned
counsel for the appellant is right in submitting that the proceedings could
not have been initiated in view of sub-section (1) of Section 20A of TADA.
The said provision reads thus :
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"20A. Cognizance of offence - (1) Notwithstanding anything contained in the
Code, no information about the commission of an offence under this Act
shall be recorded by the police without the prior approval of the District
Superintendent of Police.
(emphasis supplied)
The provision begins with a non-obstante clause and declares that
notwithstanding anything contained in the Code of Criminal Procedure, no
information about commission of an offence under TADA "shall be recorded by
the police without the prior permission of District Superintendent of
Police". It is not in dispute that Authority to exercise power under sub-
section (1) of Section 20A in Delhi is the Deputy Commissioner of Police.
The learned counsel for the appellant submitted that prior approval as
required by law had not been obtained and hence the proceedings were
vitiated and the appellant could not have been prosecuted. The learned
counsel for the respondent, on the other hand, submitted that prior
approval had been granted by the Deputy Commissioner of Police and the
prosecution was legal and lawful. The counsel on both sides in this
connection invited our attention to a few decisions of this Court.
In Anirudhsinhji Karansinhji Jadeja and Anr. v. State of Gujarat, [1995] 5
SCC 302, the District Superintendent of Police had not granted prior
approval ‘on his own’. Instead, he requested the Chief Secretary to accord
permission to proceed against the accused under TADA. That action was
challenged by the accused. Upholding the contention and observing that the
provision of the statute is clear and unambiguous, a three-Judge Bench of
this Court held that the power to grant approval under the Act has been
vested in the District Superintendent of Police and he alone must exercise
the said power. Referring to an earlier decision of this Court in
Commissioner of Police v. Gordhands Bhanji, [1952] SCR 135, the Court
observed that when the power is conferred by a statute on a particular
authority, that authority alone must exercise such power. In the opinion of
the Court, the exercise of power was on the basis of "external dictation".
Such dictation came on the prayer of District Superintendent of Police did
not make any difference in principle. The fact was that the District
Superintendent of Police did not exercise jurisdiction vested in him by the
statute and did not grant approval to the recording of information under
TADA. The proceedings were, therefore, vitiated.
The Court stated;
"The case against the appellants originally was registered on
19.3.1995 under the Arms Act. The DSP did not give any prior
approval on his own to record any information about the commission
of an offence under TADA. On the contrary, he made a report to the
Additional Chief Secretary and asked for permission to proceed
under TADA. Why? Was it because he was reluctant to exercise
jurisdiction vested in him by the provision of Section 20-A(1)?
This is a case of power conferred upon one authority being really
exercised by another. If a statutory authority has been vested with
jurisdiction, he has to exercise it according to its own
discretion. If the discretion is exercised under the direction or
in compliance with some higher authority’s instruction, then it
will be a case of failure to exercise discretion altogether. In
other words, the discretion vested in the DSP in this case by
Section 20-A(1) was not exercised by the DSP at all."
In Mohd. Yunus v. State of Gujarat, [1997] 8 SCC 459, a similar question
came up for consideration before a two-Judge Bench of this Court. Following
Anirudhsinhji, this Court held the provision for prior approval of the
authority under sub-section (1) of Section 20A mandatory and ruled that in
absence of such approval, proceedings under TADA were not maintainable. It
was contended by the prosecution that when the investigation had been made,
the Commissioner of Police, was present and he had given "oral" permission
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under Section 20A (1) of TADA. This Court, however, indicated that
"considering the serious consequences in a criminal case initiated under
the provision of TADA, oral permission cannot be accepted".
We may now refer to a decision of two-Judge Bench in Kalpnath Rai v. State
(Through CBI), [1997] 8 SCC 732. There prosecution was launched against
several persons under TADA. It was contended on behalf of the accused that
the provisions of sub-section (1) of Section 20A of TADA had not been
complied with and hence they stood vitiated. The Court negatived the
contention and held that prior approval envisaged by Section 20A (1) of
TADA need not be in writing.
The Court stated :-
"Then the question is whether prior approval envisaged in Section 20-A(1)
of TADA should necessarily be in writing. There is nothing in the sub-
section to indicate that prior approval of the District Superintendent of
Police should be in writing. What is necessary is the fact of approval
which is sine qua non for recording the information about the commission of
the offence under TADA. The provision is intended to operate as a check
against the police officials of lower ranks commencing investigation into
offences under TADA because of the serious consequences which such action
befalls the accused. However, the check can effectively be exercised if a
superior police official of the rank of DSP first considers the need and
feasibility of it. His approval can be obtained even orally if such an
exigency arises in a particular situation. So oral approval by itself is
not illegal and would not vitiate the further proceedings."
In our opinion, the learned counsel for the respondent is right in relying
upon a three-Judge Bench decision in State of A.P. v. A. Sathyanarayana and
Ors., [2001] 10 SCC 597. In that case, a Sub-Inspector of Police seized
certain explosive substances and contacted Superintendent of Police being
appropriate authority for getting prior approval as required under Section
20A (1) of TADA before registering a case. The Superintendent of Police
instructed the Sub-Inspector of Police to register the case and book the
accused under TADA. The case was registered. The Superintendent of Police
himself recorded in writing to register a case but the writing reached the
Sub-Inspector on the next day. When the charge sheet was filed, the
Designated Judge took the view that there was no approval in writing of the
Competent Authority and the registration of case under TADA was bad in law.
The State approached this Court. The Court considered Mohd Yunus and
Kalpanath Rai and held that Section 20A (1) of TADA did not require prior
approval in "in writing".
The Court stated that prior approval is no doubt condition precedent for
registering a case under TADA but it may either be in writing or oral. The
Court proceeded to state that in Mohd. Yunus, a two-Judge Bench considered
the question and held that such approval must be in writing so that there
is transparency in the action of the statutory authority and there is no
occasion for any subterfuge subsequently by introducing oral permission.
That judgment was delivered on October 15, 1997. The Court further observed
that another two Judge Bench in Kalpnath Rai considered a similar question
of prior approval and held that such approval need not be in writing. The
Court noted that though Kalpnath Rai was decided subsequently on November
6, 1997, the attention of the Court was not invited to Mohd. Yunus and
apparently there was inconsistency between the observations in Mohd. Yunus
and Kalpnath Rai. The Bench, however, held that the statute itself nowhere
made it imperative that the so called prior approval must be in writing.
The Court said that innumerable cases may arise where it may not be
possible to obtain approval in writing before registering the case and
without registering the case the officer concerned would not be entitled
with the investigation of the matter. Such situation may lead to
obliteration of the evidence of the case.
The Court, therefore, concluded;
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"Having applied our mind to the aforesaid two judgments of this
Court, we are in approval of the latter judgment and we hold that
it is not the requirement under Section 20A(1) to have the prior
approval only in writing. Prior approval is a condition precedent
for registering a case, but it may be either in writing or oral
also, as has been observed by this Court in Kalpnath Rai case and,
therefore, in the case in hand, the learned Designated Judge was
wholly in error in refusing to register the case under Sections 4
and 5 of TADA. We, therefore, set aside the impugned order of the
learned Designated Judge and direct that the matter should be
proceeded with in accordance with law."
(emphasis supplied)
Reference was also made to Ahmad Umar Saeed Sheikh v. State of U.P., [1996]
11 SCC 61. In that case, the prosecution alleged that the accused had
committed offences under TADA as also under the Indian Penal Code.
According to the accused, since there was no prior approval of District
Superintendent of Police for recording FIR under TADA, which was essential,
the proceedings were vitiated. Negativing the contention, this Court held
that prior approval of District Superintendent of Police was required for
initiating proceedings only under TADA. Since the allegations were for
commission of other offences also, such approval was not needed in respect
of those offences. In the circumstances, grant of approval during the
investigation involving the accused under TADA was sufficient compliance.
In the instant case, as already noted earlier, initially it was alleged by
the prosecution that the appellant accused had committed offences
punishable under the Arms Act as well as under TADA. The Designated Court,
however, held that the provisions of TADA could not be invoked and hence no
charge was framed under TADA. The matter was then taken to this Court by
the State and the order passed by the Designated Court was set aside. It
was only after the order passed by this Court that the proceedings were
initiated under TADA. For such proceedings, compliance of Section 20A (1)
of TADA and prior approval was necessary.
The learned counsel for the appellant-accused, however, stated that even
today when all the proceedings are over, the appellant is convicted under
TADA and the matter is pending before this Court, there is nothing to show
that prior approval as required by Section 20A (1) had ever been granted.
The counsel in this connection stated that the only order which was passed
by the Deputy Commissioner of Police is of April 5, 1994. The learned
counsel for the respondent admitted the said position. That order dated
April 5, 1994 is on record (Ex.P4/1). Bare reading of the order makes it
clear that the Deputy Commissioner of Police granted sanction only in
respect of an offence punishable under the Arms Act.
The learned counsel for the respondent stated that on December 11, 1993,
the accused was apprehended and the weapons were found by police. PW 11 Ram
Mehar Singh had stated in his evidence that after the weapons were
recovered, seized and sealed, the Deputy Commissioner of Police had come on
the spot and after satisfying himself, he gave a direction to register a
case under TADA against the accused. It was, therefore, submitted that
prior approval had been granted as required under Section 20A(1) of TADA.
Reference was also made by the counsel to Section 60 of the Evidence, 1872
which declares that if oral evidence refers to a fact, which could be
heard, it can be proved by the evidence of a witness who says he heard it.
We are unable to uphold the argument. In this case, Deputy Commissioner of
Police himself had been examined as prosecution witness (PW4). In his
deposition, he had not stated that he had given any such direction to PW 11
Ram Mehar Singh to register case against the accused under TADA. On the
contrary, he had expressly stated that he had granted sanction (which was
in writing) which is at Ex.P4/1. As already adverted earlier, it was under
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the Arms Act and not under TADA.
In our opinion, therefore, from the facts of the case, it cannot be held
that prior approval as required by Section 20A (1) has been accorded by the
competent authority under TADA. All proceedings were, therefore, vitiated.
The contention of the appellant-accused must be upheld and the conviction
of the appellant-accused under TADA must be set aside.
The learned counsel for the appellant is also right in submitting that even
on merits, the Designated Court committed an error in convicting the
appellant. The counsel submitted that kidnapping-case of Ved Prakash Goel
resulted into acquittal by a competent court. The said decision is final.
In view of acquittal of the appellant, it was not open to the Designated
Court to reconsider the matter by doubting the decision or commenting upon
it observing that the acquittal was undeserved or unwarranted and the
appellant-accused had committed the offence with which he was charged.
In support of the argument, the learned counsel referred to a decision of
this Court in Pritam Singh and Anr v. State of Punjab, AIR (1956) SC 415.
In that case, one P was prosecuted under the Arms Act for possessing a
revolver without holding valid licence. He was, however, acquitted by a
competent court. Subsequently, he was tried on the charge of murder. The
prosecution wanted to rely on recovery and factum of possession of revolver
which resulted in acquittal in an earlier case. It was held that the
doctrine of autrefois acquit would apply.
Referring to a leading decision of the Judicial Committee of the Privy
Council in Sambasivam v. Public Prosecutor Federal of Malaya, (1950) AC
458, this Court said;
"The acquittal of Pritam Singh Lohara of that charge was tantamount to a
finding that the prosecution had failed to establish the possession of the
revolver Ex. P-56 by him. The possession of that revolver was a fact in
issue which had to be established by the prosecution before he could be
convicted of the offence with which he had been charged."
The counsel is right in contending that once the appellant-accused was
acquitted in kidnapping-case the doctrine of autrefois acquit gets
attracted. The Designated Court had proceeded on the allegation of the
prosecution and observed that it was M.A. Ansari who master minded the
kidnapping of Ved Prakash Goel.
The Court stated :-
"In view of my discussion made above and after considering the
entire evidence and the documents proved on record and documents
placed by accused on record, I come to the conclusion that it was
accused M.A. Ansari who master minded the kidnapping of V.P. Goel.
For this he took a house on rent in sector 8, Panchkula on 25.10.93
(it is possible that he had done this kidnapping for ransom at the
instance of Gandhi who was enimical to V.P. Goel). After keeping
V.P. Goel at Panchkula with his two goons calls were made for
ransom of one crore to the family of V.P. Goel and threat to kill
V.P. Goel was given if the amount was not given. He was in guest
house in Delhi on 10.12.93 when police raided the rented house
taken by accused in Sector 8 Panchkula after arresting two of his
goons and rescuing V.P. Goel. Unaware of this arrest of his two
goons and rescue of V.P. Goel, he came to receive ransom amount
opposite Bahai Temple gate and he fell in trap laid by the police,
who had got telephone made to him from one of his accomplices. He
came to Bahai temple with four fire arms and lot of ammunition. He
was arrested there with arms and ammunitions. He, under threat made
to V.P. Goel and his son Sanjay Goel forced them to testify in his
favour in the Session court where his kidnapping case was tried. He
got TIP held deliberately as he knew that he has got V.P. Goel
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under his terror and V.P. Goel stated that he has not seen accused
M.A. Ansari at any point of time before the TIP. He was acquitted
in the kidnapping case due to the witnesses turning hostile under
his fear. He thereafter forced the same V.P. Goel and Sanjay Goel
to depose in this court that he was apprehended from Panchkula. I
have no doubt in mind that accused was apprehended by the Delhi
Police from opposite Bahai temple along with fire arms and
ammunitions. He tried to create evidence of his presence in
Panchkula by his money power and muscular power both."
The learned counsel for the appellant also urged that it was the case of
the prosecution that the police had requisitioned a Maruti car from Ved
Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness
in this case as PW 1. He, however, did not support the prosecution. The
prosecution never declared PW1 "hostile". His evidence did not support the
prosecution. Instead, it supported the defence. The accused hence can rely
on that evidence.
A similar question came up for consideration before this Court in Raja Ram
v. State of Rajasthan, JT (2000) 7 SC 549. In that case, the evidence of
the Doctor who was examined as a prosecution witness showed that the
deceased was being told by one K that she should implicate the accused or
else she might have to face prosecution. The Doctor was not declared
"hostile". The High Court, however, convicted the accused. This Court held
that it was open to the defence to rely on the evidence of the Doctor and
it was binding on the prosecution.
In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis
of the prosecution that he had given his Maruti car to police in which
police had gone to Bahai Temple and apprehended the accused. When Goel did
not support that case, accused can rely on that evidence.
The counsel also raised an objection against investigation by PW 11 ASI,
Ram Mehar Singh. He is the complainant as well as Investigating Officer.
In Megha Singh v. State of Haryana, [1996] 11 SCC 709, the investigation
was conducted by the very same police official who had lodged the
complaint. Deprecating the practice, this Court observed that in the
absence of independent corroboration, no conviction can be recorded in such
cases. In the opinion of this Court, it was a "disturbing feature of the
case". The conviction of the accused was, therefore, set aside and he was
ordered to be acquitted.
The learned counsel for the appellant also argued that from the defence
evidence as a whole, there is probability that the accused was not present
at Delhi on the previous night i.e. December 10, 1993 and was not
apprehended from Bahai Temple, New Delhi on December 11, 1993 but was
arrested from Panchkula. For that reason, four telegrams were sent by the
wife of the appellant accused to the President of India, Prime Minister of
India, Chief Justice of India and Chief Justice of Punjab & Haryana. Though
the Designated Court refused to believe it on the ground that the original
record was not produced, it cannot be ignored that a certificate from the
telegram office had been produced and a witness from Chandigarh Telegram
office had also been examined.
The learned counsel also submitted that the weapons were not recovered from
Delhi but from Panchkula. PW 4 Maxwell Pareria and PW 5 M.B. Kaushal (both
police officials) stated that they could not state whether arms and
ammunitions were recovered from Delhi or Panchkula. The Designated Court,
however, did not consider that point by stating that the witnesses ‘deposed
in a very casual manner in the court’. "They did not bother to look into
the matter and very casually stated that they could not admit or deny the
recovery of arms from Panchkula".
One more circumstance was also pressed into service by the defence.
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According to the case of the prosecution, on December 10, 1993 when police
went to Panchkula, the accused was not found but his wife and children were
there. The two persons arrested by police informed the police party that
the accused was in Shangrila Guest House in Delhi. Telephone number of the
Guest House was also given. The wife of the accused was present at that
time. The police authorities took no step to inform anyone to arrest the
accused by contacting Delhi police, nor immediately rushed to Delhi nor had
gone to Shangrila Guest House in the morning of December 11 and waited near
Bahai Temple upto 12.00 noon. It is also rightly submitted that in that
case, the wife should have immediately informed the accused that the police
was in search of him as she was made aware of whereabouts of the accused
and even telephone number. Thus, there is every possibility of accused
having been arrested from Panchkula on December 10, 1993 and not from Delhi
on December 11, 1993 as asserted by the prosecution.
Thus, on overall consideration of the matter, in our opinion, it cannot be
concluded that the case against the appellant accused can be said to have
been proved beyond reasonable doubt and the accused, in our considered
opinion is entitled to benefit of doubt.
For the foregoing reasons, the appeal deserves to be allowed and is
accordingly allowed. The order of conviction and sentence passed against
the appellant accused under TADA as also under the Arms Act is liable to be
set aside and is accordingly set aside. The appellant is said to have been
on bail. The bail bond stands discharged. Amount of fine, if paid, is to be
refunded to the accused.