DURGA PRASAD GUPTA versus THE STATE OF RAJASTHAN THROUGH C.B.L.

Citation: [2003] SUPP. 4 S.C.R. 1 · Decided: 25-09-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Dismissed

Judgment (excerpt)

., 
DURGA' PRASAD GUPTA 
A 
v. 
THE ST A TE OF RAJASTHAN THROUGH C.B.l. 
SEPTEMBER 25, 2003 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
B 
E-rp/osive Substances Act, 1908 : 
Section 5: Accused charged with poss~ssion of explosive substances-
Held: Unless the possesion is coupled with requisite mental element, i.e. C 
conscious possession and not mere custody without awareness of the 
nature of such possession, Section 5 not attracted. 
Large quantities of explosives and other contraband articles found 
from the godown of Accused-Held, not only belies but militates against 
the very plea of Accused/Appellant relating to conscious possession. 
D 
Trial under-Once conscious possession of contraband articles found 
in possession of Accused no further nexus with any terrorist or disruptive 
activity is required to be proved-Statut01y presumption would arise that 
the said arm or explosive substance was meant to be used for a terrorist E 
or disruptive act. 
Criminal Trial : 
Confessional Statement-No denial by Accused (hpf s,tatement was 
recorded~No challenge made that the st~tement was n;i voluntary and/ F 
or was result of coercion or undue influence or threat-The Statement was 
elaborate and inculpated with the details like the source of purchase of the 
articles-Such details were within the personal and special knowledge of 
Accused-There is no reason to discard the confessional statement. 
Words and Phrases: 
G 
"Conscious possession" meaning of 
In the presence of independent witnesses a search was made at 
"" 
·the godowns of the Appellant and in his presence various incriminating H 
2 
SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R. 
A articles like gelatine and detonators were recovered for which the 
Appellant had no licence to deal with. After the investigation, prosecution 
came to know that the transaction to deal with these explosive 
substances were illegal and were to aid and abet the terrorist activities. 
It also came to the knowledge of the prosecution that another Accused 
B A-5 was engaged in abetting the terrorist activities in J & K and used 
to procure explosives from the Appellant and other co-accused as 
preparatory acts for the terrorist activities. 
According to the prosecution the above facts established that 
A-5 and other co-accused including the Appellants had committed 
C offences punishable under Sections 1208 IPC read with Sections 3(1), 
3(3), 5 and 6 of TADA Act, Sections 3, 4, 5 and 6 of the Explosive 
Substances Act and Section 9B of the Explosive Act. Another co-
accused had committed offence under Section 9B of the Explosive Act. 
D 
' 
The Trial Court found the Accused guilty for offences punishable 
under Section 5 of the TADA Act, Section 4 and 5 of the Explosive 
Substar1ces Act and Section 9B of the Explosive Act. Hence this appeal. 
It was contended by the Accused Appell:>nt that the conscious 
possession which was sine qua non for establishing the accusations had 
E not been proved; that the room from where the contraband articles 
were seized was easily accessible; that the Explosives Controller's 
report was not very clear; that ther.e was no material to show where 
the articles were kept during the da~e of seizure and ~he date of report; 
that even if it is heid that at some point in time of possession and the 
F same was pursuant to any conspiracy, that cannot stick to the 
Appellant as there was no charge under Section 120B IPC; and that 
confessional statement was recorded without granting proper time for 
reflection. 
It was contended by the State that the stand taken about conscious 
G possession was clearly untenable because the room was part of the 
premises owned by the Accused; that there was no suggestion that 
somebody else had planted the articles, on the contrary the suggestion 
was that some one had kept the article for safe custody; that the 
confessional statement suffered from no infirmity as all procedural 
H safeguards were taken; i~ was not the date of discovery which was 
,.. 
' 
D.P. GUPTA v. STATE OF RAJ. THROUGH C.B.I. 
.. 
:> 
A 
relevant and earlier possession subsequent to the date of notification A 
_., 
was material; for the article seized at Gazhiabad border is concerned; 
( 
a camouflage was made to take the articles as if they were harmless 
chemicals; that Appellant had himself admitted that he was previously 
having a licence to deal with explosives, but the licence was subsequently 
not renewed; and that wh-ether the almirah was locked or w

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