LexSURINDER versus THE STATE OF HARYANA
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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!-A1111ourr:r's report-Pistol 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' B report could not establish it as it was silent. In the absence of any evidence 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 c is >et aside, but his conviction under Section 25 of the Indian Arms Act is 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 -" A B c 864 SUPREME COURT REPORTS (1994] 3 S.C.R. connection with FIR No. 370 on 24.1.1.1990, the accused ivade a disclosure s:atement telling the
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