SALIM AKHTAR @ MOTA versus STATE OF UTTAR PRADESH

Citation: [2003] 3 S.C.R. 470 · Decided: 09-04-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
SALIM AKHTAR@ MOTA 
v. 
STATE OF UTTAR PRADESH 
APRIL 9, 2003 
[S. RAJENDRA BABU AND G. P. MATHUR, JJ.] 
Criminal Trial: 
Terrorist and Disruptive Activities Prevention Act, 1 985; Sections 4 & 
C 5/Penal Code, /860; Sections 147, 148, 302 & 307: Arms Act, Section 251 
E.xplosive Substances Act, Section 5: 
Charges under TADA-Conviction-Statement of accused vis-a-vis 
recovery of incriminating articles-Factum of recovery-Held: since evidence 
D shows that cartridges were sealed but not the pistol which was allegedly 
recovered along with other incriminating articles, raises considerable doubt 
on the factum of recovery-Since the recovery was made from an open place 
accessible to all, recovery of incriminating articles does not amount to conscious 
possession-Only that part of the statement indicating the place of recovery 
of the bag containing incriminating articles is admissible-Hence accused 
E cannot be held liable for possession of such incriminating articles-Evidence 
Act, /872- Section 27. 
Words & Phrases: 
'conscious possession '-Meaning of 
F 
According to the prosecution, accused-appellant and others hurled 
bombs at a police picket resulting in the death of one police officer and 
injuries to several security personnel. After investigation and sanction of 
the concerned authorities, charge-sheets against the accused were 
submitted before the Designated Court (TAOA). The Designated Court 
G found all the accused guilty of committing offences under Section 25 of 
Arms Act, Section 5 of Explosive Substances Act and Section 8 of TADA 
and convicted and sentenced them accordingly. Hence the present appeal 
preferred by one of the accused. 
H 
470 
'· 
SALIM AKHTAR@ MOTA,._ STATE OF UTTAR PRADESH 
4 71 
It was contended for the appellant that he was detained/tortured in A 
the police custody for several days; that neither disclosure statement was 
given by him nor any incriminating material was recorded at his instance; 
that the photographer, one of the witnesses, was on the pay roll of the 
police as such he was not an independent witness; that since recovery was 
made from a place accessible to all and pistol allegedly recovered was not 
sealed on the spot, appellant could not be held in possession of such articles. B 
Allowing the appeal, the Court 
HELD: 1.1. The evidence on record clearly shows that the pistol 
alleged to have been recovered from the polythene bag which was allegedly C 
taken out from the mud by the appellant was not sealed on the spot. 
Though the cartridges were sealed but the most important object, namely, 
the pistol was not sealed on the spot and the same was deposited as it is in 
the police ·station. The fact th~t the pistol alleged to have been recovered 
at the pointing out of the appellant was not sealed on the spot coupled 
with the fact that neither its number nor its make, etc. to fix its identity D 
was mentioned in the recovery memo or in the FIR, raises considerable 
doubt regarding the factum of recovery. [477-C-FI 
Amarjit Si11gh v. State of Punjab, 119951 Supp. 3 SCC 217 and Sahib 
Singh v. Stale of Punjab, [1996) 11 SCC 685, relied on. 
1.2. The disclosure statement of the appellant was admittedly made 
to police personnel and only that part of the statement would be admissible 
which is permissible under Section 27 of the Evidence Act. in the facts 
and circumstances of the instant case, what is admissible is the place from 
where the polythene bag containing pistol and other articles was allegedly 
recovered. The fact that some terrorist organisation had given the pistol 
and other articles to the appellant or its use would not be admissible. 
1477-G; 478-A-BI 
Pulukuri K ottaya and Ors. v. Emperor, AIR (1947) PC 67, relied on. 
E 
F 
1.3. The recovery was made from an open place which was accessible G 
to all and PWJ has clearly admitted in his cross-examination that the 
recovery of the polythene bag was made from an open 'G her' in a lonely 
place, where anyone could easily come. The principle laid down in the 
various decisions of the apex Court that mere knowledge of the accused 
that incriminating articles were l{ept at certain place does not amount to H 
472 
SUPREME COURT REPORTS 
[2003] 3 S.C.R. 
A conscious possession is fully applicable here and it cannot be held that the 
appellant was in possession of the articles alleged to have been recovered 
from his possession. (478-C; 479-AI 
Sanjay Dutt v. State through CBI, Bombay, (1994) 5 SC 540, follow

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