Uday Nath Oraon @ Uday Oraon vs State Of Jharkhand `

Gautam Kumar Choudhary, J.

This appeal is directed against the judgment of conviction and sentence of RI for 14 years under Section 3(5) of the POTA, and for the same period under Section 4 of POTA, RI for 7 years under Section 20(2) of POTA and RI for period of 7 years with fine each under Section 25 (1-A) and Section 26(2) of Arms Act and for the period of 3 years under Section 17(2) of the CLA Act in Special Case 21/2003(P).

As per the FIR, appellant Sub Zonal Commander of MCC, a banned terrorist organization, had come to his Village Toto along with his armed group on 16.02.2003. Office-in-Charge of Bhandra Police Station received the information and conducted a raid in which the appellant was arrested with a sten-gun in his hand, loaded with 15 live cartridges of 9 mm and it was marked at one place sten-gun STEN MK V 163387 and 5106 was also written. On search, one country made revolver loaded with 3 live cartridges of 0.38 bore, was also recovered from the left side waist of the accused and from his right side waist, one sten-gun magazine loaded with 16 cartridges of 9 mm was recovered. Bullet chain (Bindolia) 40 live cartridges of 9 mm was also seized.

The case was registered on the basis of the self-statement of the Officer-in-Charge, charge sheet was submitted, after cognizance and commitment accused/appellant was put on trial.

Altogether 15 witnesses were examined on behalf of prosecution and relevant document including seizure list, sanction for prosecution against accused, were adduced into evidence and marked as Exhibit 1–7. Arms and ammunitions seized were produced and material Exhibit Nos.I–V.

Judgment of conviction and sentence has been assailed principally on the ground that that there is no material to establish that he was a Zonal Commander or a member of band terrorist outfit, therefore, the conviction under POTA and CLA, is not sustainable and is liable to be set aside. With regard to the conviction under the Arms Act, it is argued that the arms were not sealed at the place of occurrence, therefore it cannot be said that before producing in the Court it was not tempered with. The seizure list witnesses have not been examined and therefore, an adverse inference is liable to be drawn under Section 114(g) of the Evidence Act.

Judgment of conviction and sentence has been defended by learned counsel on behalf of State. It is submitted that appellant was a dreaded extremist with criminal antecedents of 29 cases of serious nature of being involved in extremist activities, including that of murder and extortion.

I find force in the argument advanced on behalf of learned counsel on behalf of State that Section 100 of the Cr.P.C. which requires search and seizure to be made in the presence of two independent witnesses, applies only when such search is made in closed places and not when physical search is made of the arrested person. In case of search of person, search and seizure is to be made as per the provisions under Sections 51 and 52 of the Criminal Procedure Code. Learned trial court has also taken note of the judgment passed by Hon’ble Supreme Court which holds that search and seizure cannot be disbelieved only for the reason that seizure list witnesses are police personnel. Apart from the informant (P.W. 1), the other members of the raiding party which comprised of the police and CRPF personnel were examined as P.W. 3, P.W. 4, P.W. 6, P.W. 7, P.W. 8, P.W. 10 and P.W. 11 have stated the manner in which search and seizure was made. There is no reason to disbelieve their account. No objection was raised at the time of production of the seized arms, and consequently the Sten-gun was marked as material Exhibit I. It has been held in the case of Sunder Singh Versus State Of Uttar Pradesh, AIR 1956 SC 411 that it is to be remembered that Section 100 of the Cr.P.C. applies when a search is to be made of a place and it does not apply to search of person.

Ballistic report and sanction for prosecution under the Arms Act have been proved and marked as Exhibit 6 and Exhibit 5 respectively. A specific plea had been raised that the sten-gun was not sealed at the place of occurrence as deposed by P.W. 14 in para 4. It is to be noted that in appreciation of evidence, the entire evidence is to be looked in its totality and one single factor cannot be a reason to disbelieve the entire prosecution case. Considering the other evidence on record, I am of the view that this cannot be the ground to disbelieve the prosecution case. It shall be profitable to refer to the observation of Hon’ble Supreme Court in Bilal Ahmad Kallu Versus State of Andhra Pradesh, 1997 (7) SCC 431 which involved recovery of one revolver and two cartridges from the appellant and the conviction was challenged on the ground that articles were not sealed after seizure and were left at police station for number of days before it was sent for forensic laboratory. It was held: -

“We are not impressed by the said contention and we may point out that appellant made no allegation at any stage of the case that the recovery and the cartridges were tampered with by the police. Not even a suggestion was made to any witness in that direction. According to the counsel, since those articles were sealed there was possibilities of their being tempered with. Such an academic possibility need not be countenanced by us in this case because even the accused has no case that they were tempered with. That apart, the particular of the weapons were given in the seizure memo and the same tallied with the weapons on examination by the Ballistic expert. There is no challenge to the seizure memo admittedly prepared at the time of recovery of arms and ammunitions. The identity of the weapons thus stands, established beyond any reasonable doubt.”

Under the circumstance for the reasons discussed above, judgment of conviction is affirmed under Sections 25(1-A) and 26(2) of the Arms Act.

Although two category of arms were seized from the appellant, being the sten-gun and country made pistol along with 9 mm cartridges, but charge has been framed only under Section 25 (1-A) of the Arms Act. Charge in this case should have also been framed under Section 25 (1)(b) of the Arms Act for recovery of the country made pistol and Section 25 (1)(a) of the Arms Act for the 9 mm cartridges. In the absence of charge under these sections, there cannot be order of conviction under it. Trial Courts, hence forth need to be more cautious in such cases at the time of framing of charge.

As far as the charges under POTA and CLA is concerned, Section 3(5) of the POTA provides for punishment to be member of a banned terrorist outfit. MCC was a banned outfit as per the notification annexed to the schedule of the Act.

Section 4 of POTA makes the offence punishable for possession of certain unauthorized arms, etc. such as those —

(a) arms or ammunition specified in columns (2) and (3) of Category I or Category III(a) of Schedule I to the Arms Rules, 1962, in a notified area,

(b) bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not,

He shall be guilty of terrorist act notwithstanding anything contained in any other law for the time being in force, and be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both.

A Person is guilty of offence under Section 20 of the POTA, if he commits an offence if he belongs or professes to belong to a terrorist organisation.

It has been argued by learned counsel on behalf of State that in these cases there cannot be practically any documentary or direct evidence of running an extremist outfit. To seek such evidence, will amount to cast unconscionable burden on the prosecution.

In order to prove the charge under these provisions, the first requisite is that accused should be proved to be a member of such a banned organization. Argument of difficulty to prove in such cases is appreciated, but it is difficult to be persuaded by the argument on behalf of the State for not leading any cogent evidence in this regard. It was incumbent on the part of the State to have adduced some evidence to disclose the complicity of the appellant in extremist activity or the membership of such an organization. It has been contended that the appellant had criminal antecedent of being involved in cases involving extremist violence, but no evidence has been led in this regard. It has been deposed by the witnesses that the appellant was Sub Zonal Commander of MCC and was having criminal antecedents of being involved in 29 cases of serious nature. It has also come in evidence of P.W. 13 in para 4 of his deposition that the seized sten-gun from the possession of the appellant, was looted away from the police in Kudu P.S. Case No.69/99.

Neither past conviction has been proved, nor evidence regarding involvement in any other such case has been brought on record by any documentary evidence in support of it. Except oral evidence that he was the Zonal Commander of MCC, there is no other evidence to establish that he was member of the banned outfit. Confession in the present case (Exhibit 4) has been recorded by Samshad Ansari, S.I. of Police, and not by Superintendent of Police which is the requirement under Section 32 of POTA, 2002. Therefore, confessional statement of the appellant cannot be looked into. In the absence of any credible evidence of membership of the banned organization, mere oral evidence of the police personnel will not be sufficient to prove the charge under Section 3 or Section 20 of POTA.

Although the charge of recovery of sten-gun has been proved, but in order to sustain conviction under Section 4 of POTA, 2002, it was necessary to lead evidence that it was a notified area from where the said seizure was made. No such notification has been brought on record, therefore the charge under Section 4 of POTA also fails.

Under the circumstance, for the reasons as discussed above, I am of the view that conviction under the aforesaid Sections of POTA, 2002 is not sustainable and is, accordingly, set aside. He is also acquitted of the charge under Section 17(2) of the CLA Act. Judgment of conviction and sentence under Sections 25 (1-A) and 26(2) of the Arms Act is upheld.

Criminal Appeal is accordingly partly allowed.

Pending Interlocutory Application, if any, is disposed of.

Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.