Santosh Kalyan Pangerkar vs State of Maharashtra

A.S. Anand, J.—This appeal u/s 19 of the Terrorist and Disruptive Activities Prevention Act, 1987 (hereinafter TADA) is directed against the judgment and order dated 29th March 1993, passed by the Designated Court for Greater Bombay.

The Appellant was tried for offences u/s 3 read with Section 5 of the TADA and Section 3(1) read with Section 25 [1-B (a)] of the Arms Act, 1959 by the Designated Court. The prosecution case against him was that on 16.1.1991, at about 3 p.m. PI Dhoble (P.W. 4) on receipt of some information that the Appellant, belonging to Amar Naik gang, had taken shelter in Pansare Chawl, situated near the junction of Sane Guraji Marg and N.M. Joshi Marg, Bombay, proceeded to the spot alongwith PSI Vernekar (P.W. 1), PSI Pote (P.W. 2), PSI Dhanvat, PSI Maralkar and some constables for raiding the place. The raid operations of the police party, however, did not result in any criminal being apprehended from Pansare Chawl, and when the police party came out they found a white fiat car bearing Registration No. MFA- 7305, with the Appellant (sic)ring on the driver seat, parked there seeing the police party, the Appellant the was sitting on the driver seat, opened door and made an attempt to runway. He was, however, chased and over-(sic)ered. The panchas were called and their presence, the Appellant was (sic)rched. He was found to be in possessing of a country made pistol loaded with the cartridge. One more cartridge of the similar type, was found in the right hand (sic)cket of the Appellant while one maga(sic)ne loaded with seven cartridges was found in the pocket of the pant of the Appellant. The fire arm and ammunition alongwith the keys of the motor car MFA-7305, were seized under a panchnama and sealed by the police party. The Appellant was arrested and taken to the police station where PSI Vernekar (P.W. 1) lodged the FIR Ex.6, for the offences, as noticed above, against the Appellant. The fire arm and ammunition seized from the Appellant were sent to the Forensic Laboratory and on receipt of a report from the laboratory, sanction is prosecute the Appellant was obtained. The Appellant did not possess any licence for the arms and ammunition. Pansare Chawl had been declared as a notified area u/s 2(f) of TADA by the date of Maharashtra and for the purposes of Section 5 of TADA, unauthorised possession of the arm, by itself constitutes punishable offence. The Appellant was therefore put on trial for the offences noticed above.

The prosecution examined PSI Vemekar P.W. 1, PSI Poto P.W. 2, PI Dhoble P.W. 4 and Sudhakar Ambedkar P.W. 3. The Appellant denied the allegations against him and pleaded false implication. The (sic) of the evidence and taking into consideration the facts of the case, including the alleged confession of the Appellant recorded before DSP Ambedkar Ex.9A, came to the conclusion that the Appellant was not guilty of committing any offence u/s 5 read with Section 3 of TADA and consequently he was acquitted of the said offences. The Appellant, however, was found guilty and convicted for the offences u/s 3(1) read with Section 25 [I-B (a)] of the Arms Act and sentenced to suffer R.I. for two years and two months and to pay a fine of Rs. 500/- and in default, to undergo simple imprisonment for 15 days. The Appellant is on appeal before us.

That the Appellant has already undergone the sentence imposed upon him by the Designated Court is not disputed by learned Counsel for the parties, but whereas Mr. Bhasme, learned Counsel for the State of Maharashtra submitted that since the Appellant had already undergone the sentence, the appeal did not merit any further consideration, Sh. R.K. Jain, the learned Senior Advocate appearing for the Appellant, on the other hand submitted that the evidence on the record did not justify the conviction of the Appellant at all and therefore, the Appellant deserved to be acquitted. Learned Counsel for the parties took us through the evidence of the case.

We have very carefully considered the evidence of P.W. 1, P.W. 2, P.W. 3 and P.W. 4. We find that the prosecution case bristles with serious inaccuracies and discrepancies and our independent appraised and analysis of the evidence on the record has created an impression on our minda that the prosecution has failed to established (sic) the against the Appellant be (sic) a reasonable doubt. We find our-(sic) unable to agree with the learned (sic)gnated Court that the discrepancies (sic) contradictions, some of which it had (sic) noticed, were not of a significant na(sic). On a perusal of the evidence on record, we are of the opinion that the prosecution has failed to prove the case against the Appellant beyond a reasonable doubt and his conviction is not well funded. We accordingly, accept this appeal and set aside the conviction and sentence of the Appellant for the offences u/s 3(1) read with Section 25II-B (a)] of the Arms Act, 1959 and acquit him.