{"id":126100,"date":"2003-04-09T00:00:00","date_gmt":"2003-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/salim-akhtar-mota-vs-state-of-uttar-pradesh-on-9-april-2003"},"modified":"2019-01-31T05:33:18","modified_gmt":"2019-01-31T00:03:18","slug":"salim-akhtar-mota-vs-state-of-uttar-pradesh-on-9-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/salim-akhtar-mota-vs-state-of-uttar-pradesh-on-9-april-2003","title":{"rendered":"Salim Akhtar @ Mota vs State Of Uttar Pradesh on 9 April, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Salim Akhtar @ Mota vs State Of Uttar Pradesh on 9 April, 2003<\/div>\n
Bench: S. Rajendra Babu, G. P. Mathur<\/div>\n
           CASE NO.:\nAppeal (crl.)  685 of 2001\n\nPETITIONER:\nSALIM AKHTAR @ MOTA\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT: 09\/04\/2003\n\nBENCH:\nS. RAJENDRA BABU & G. P. MATHUR\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2003 (3) SCR 470<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
G. P. MATHUR, J. This appeal has been preferred against the judgment and
\norder dated 30.3.2001 of the Designated Judge (TAD A) Meerut by which the
\nappellant has been convicted under Section 5 of Terrorist and Disruptive
\nActivities (Prevention) Act (for short “TADA”) and has been sentenced to 5
\nyears R. I. and a fine of Rs. 1,000 and in default to undergo one month R.
\nI.\n<\/p>\n
The case of the prosecution, in brief, is that at about 7. 45 p. m. on
\n26.1.1993, some miscreants hurled bombs at a police picket near Veterinary
\nHospital, Hapur Road, Meerut in which several security personnel received
\ninjuries and N.K. Mahender Prasad Sharma died. An FIR of the incident was
\nlodged at 10. 15 p. m. on the same night at P. S. Civil Lines, Meerut and a
\ncase was registered under Sections 147\/148\/307\/302 IPC and Sections 4 and 5
\nof TADA. Some persons including Jabbar, Ayyub and the appellant Salim
\nAkhtar @ Mota were arrested in connection with the aforesaid case and
\nsubsequently were taken on police remand. While in custody of the police,
\nthey made disclosure statements of having concealed some weapon, bomb and
\nexplosive material. Accordingly, in the morning of 24.3.1993, Inspector
\nN.P. Rai of P.S. Lalkurti took the aforesaid persons to the place where
\naccording to their disclosure statement they had concealed the
\nincriminating material. Inspector Shri Narayan Tripathi of P.S. Lisari
\nGate, some police personnel and two public witnesses namely, Anuj Kaushik
\n(PW3) and Vipin also accompanied them. The appellant Salim Akhtar @ Mota
\n(A-l) took them to a place by the side of Mansoor Denting Works on the road
\ngoing to Lakkhipura. He took out a polythene bag from inside the mud which
\ncontained one pistol, cartridges, a moosli bomb and RDX weighing 1 kg. A
\nrecovery memo of the recovered articles was prepared on the spot and Anuj
\nKaushik (PW3), who is a photographer and who had accompanied the police
\nparty, also took photographs of the recovery. From mere, the police party
\nwent to a place near Agarwal Tubewell on the same road and from mere
\naccused Ayyub (A-2) took out a polythene bag from inside the mud which
\ncontained 1 kg. RDX. Thereafter, accused Jabbar (A-3) took die police party
\ntowards South-West of the grove of Shri Kripal Singh near a kachcha rasta
\nand dug out a polythene bag which contained a factory made hand grenade.
\nRecovery memos of the articles recovered on the pointing out of A-2 and A-3
\nwere also made. An FIR of the incident relating to recoveries made at the
\ninstance of the accused was lodged at 12.30 p. m. on 24.3.1993 at Police
\nOutpost Pillokhari and the recovered articles were dispatched to PS Lisari
\nGate. S.P. Sharma, SHO, PS Lisari Gate took over investigation of the case
\non 27.3.1993. He prepared site plans (Ext. Ka 4 to Ext. Ka 7) of the places
\nof recoveries, obtained diffusion report from Shri Satish Kumar and sent
\nthe recovered material to Forensic Science Laboratory Agra for expert
\nopinion. After concluding the investigation, he obtained sanction from die
\nDistrict Magistrate, Meerut, for prosecution of the accused under Arms Act
\nand Explosive Substances Act and also from Inspector General of Police for
\ntheir prosecution under TADA and thereafter submitted charge-sheets against
\nthe three accused.\n<\/p>\n
The Designated Judge, Meerut, took cognizance of the offences and framed
\ncharges under Section 23 of the Arms Act, Section 5 of the Explosive
\nSubstances Act and Section 5 of TADA against the three accused. The
\nprosecution in support of its case examined 12 witnesses and filed some
\ndocumentary evidence. The articles recovered were also produced in Court.
\nThe appellant Salim Akhtar @ Mota in his statement under Section 313 Cr. P.
\nC. denied the case of the prosecution and stated mat die police had
\narrested him on 26.2.1993 when he was going to offer Namaz. He was detained
\nin the police station for several days and was produced in Court on
\n12.3.1993 and during this period he was also beaten in the police station.
\nHe examined 5 witnesses in his defence. The other accused, namely, Ayyub
\n(A-2) and Jabbar (A-3) also denied the prosecution case. The learned
\nSessions Judge (Designated Court) believed the prosecution case and
\nconvicted and sentenced all the three accused. However, only Salim Akhtar @
\nMota has preferred appeal against his conviction and sentence. The
\nremaining two accused, namely A-2 and A-3 have not challenged their
\nconviction and sentence probably on account of the fact that their
\nconviction under Sections 302 and 307 IPC and sentence of imprisonment for
\nlife imposed thereunder in the case relating to throwing of bomb on police
\npicket has been upheld up to this Court and they are undergoing sentences
\nin the said case.\n<\/p>\n
In order to appreciate the contention raised by Shri U. U. Lalit, learned
\ncounsel for the appellant, and also of the learned State counsel, it is
\nnecessary to notice the main evidence which has been adduced by the
\nparties. PW1 NP Rai, was posted as in-charge PS Lalkurti on 24.3.1993. He
\nhas deposed that the three accused, namely, A-l, A-2 and A-3 were taken on
\npolice remand from the Court in Crime Case No. 30 of 1993 under Section
\n302\/207 IPC and Sections 3 and 4 of TADA and Sections 5 and 6 of Explosive
\nSubstances Act. The accused made disclosure statement that they will get
\nbombs and explosive materials recovered. Accordingly, he along with some
\nother police personnel and the accused proceeded for Lisari Gate, where
\nPW2, SN Tripathi, Inspector in-charge of the said police station and some
\nother police personnel also joined them. Two public witnesses, namely,
\nVipin and Anuj Kaushik (PW3) who is a photographer, were asked to accompany
\nthem. Accused A-1 took them to near Mansoor Denting Works, which is situate
\non the road going to Lakkhipura. He took out a polythene bag from under the
\nmud from a place which is near the boundary wall of the said factory. The
\nbag contained one factory made pistol of 7. 62 bore, four live cartridges,
\na moosli bomb and 1 kg. RDX. Similarly recovery of 1 kg. RDX was made at
\nthe pointing out of A-2 and one hand grenade at the pointing out of A-3
\nfrom different places. Photographs of the recoveries made was taken by PW3,
\nAnuj Kaushik. After all the recoveries had been made, an FIR was lodged at
\nPolice Outpost Pillokhari and the recovered articles were deposited at PS
\nLisari Gate. PW2, SN Tripathi was posted as in-charge of PS Lisari Gate on
\n24.3.1993. He deposed that PW1, NP Rai, Inspector, accompanied by one Sub-
\ninspector and three Constables along with three accused in custody, came to
\nthe police station at about 6. 30 a. m. He was informed that the accused
\nhad made a disclosure statement and were prepared to recover the articles
\nconcealed by them. Two public witnesses, namely, PW3 Anuj Kaushik and Vipin
\nwere summoned and thereafter all of them proceeded towards Lakkhipura. A-l
\nasked them to stop near Mansoor Denting Works and he took out a polythene
\nbag from the side wall of the factory from under the mud. The bag contained
\na pistol, four live cartridges, 1 kg. RDX and a moosli bomb. The witnesses
\nalso deposed regarding the recovery made at the instance of A-2 and A-3.
\nPW3 Anuj Kaushik is a photographer by profession and he deposed that the
\npolice asked him to accompany them at about 6. 30 a. m. on 24.3.1993 while
\nhe was near Lisari Gate Chopala. The three accused were present along with
\nthe police party. A-l asked to stop the police vehicle near Mansoor Denting
\nWorks which is situate on the road going to Lakkhipura. He, thereafter,
\ntook out a polythene bag from under the mud from a place near the southern
\nboundary wall of the factory and the said bag contained one pistol, four
\ncartridges, one moosli bomb and 1 kg. RDX. He had taken photographs of the
\nrecovery made by A-l and had also signed the recovery memo. He also deposed
\nabout the recoveries made at the instance of A-2 and A-3.\n<\/p>\n
PW5, Raj Singh recorded the FIR and registered the case at Police Outpost
\nPillokhari. PW10, Satish Kumar, SI, was in-charge, Bomb Disposal Squad and
\ngave diffusion report while PW12, OP Taneja, Joint Director, Forensic
\nScience Laboratory, Agra examined and gave report regarding RDX. PW6, Tej
\nPal Sharma, Head Constable, PW7, Harpal Singh, Malkhana Moharrir, PW8,
\nRanvir Singh, Constable and PW9, Radhey Shyam Sharma, head of armoury at
\nMeerut have given evidence of formal character regarding deposit of the
\nrecovered articles, their safe custody and taking them to Forensic Science
\nLaboratory, Agra. PW4, SP Sharma, SHO, PS Lisari Gate has given details of
\nthe steps taken by him during the investigation of the case, obtaining of
\nsanctions from the District Magistrate, Meerut for prosecution under Arms
\nAct and Explosive Substances Act, which are Ext. Ka 10 to Ext. Ka 13 and
\nsanctions granted by Shri SN Naseem, IG, Meerut Zone for prosecution of the
\naccused under TADA, which is Ext. Ka 7 to Ext. Ka 9. He has also proved the
\ncharge sheets which were submitted by him.\n<\/p>\n
The appellant examined 5 witnesses in his defence. DWI, Mahipal Singh,
\nConstable, who is working as Dispatch Clerk in the office of DIG proved the
\ntelegram sent by the appellant’s wife, which was received on 2.3.1993. DW2
\nMohd. Farooq is the real brother of the appellant and he deposed that the
\npolice had arrested the appellant on 26.2.1993 and he and his family
\nmembers sent many telegrams to higher authorities and also to the Supreme
\nCourt on 9.3.1993 and a copy of the same has been filed as Ext. Kha 2. DW3,
\nMohd. Nazir, who is a neighbour of the appellant, gave a similar statement
\nthat the appellant was arrested on 26.2.1993. DW4, Smt. Munawar Jahan is
\nthe wife of the appellant and she deposed about the arrest of the appellant
\nby the police on the said date. DW5 Banarsidas Gautam, clerk in the office
\nof IG, Zone Meerut, stated that an application and also a telegram had been
\nreceived from Smt. Munawar Jahan, which were forwarded to DIG Range and SSP
\nMeerut, respectively, for necessary action.\n<\/p>\n
Shri Lalit, learned counsel for the appellant, has submitted that A-l was
\nactually arrested by the police on 26.2.1993 and was detained at the police
\nstation for several days, during which he was beaten and thereafter he was
\nproduced in Court on 12.3.1993. He has further submitted that in fact no
\ndisclosure statement was given by the appellant nor any incriminating
\narticle was recovered on his pointing out. The witnesses examined on the
\npoint of recovery are police witnesses and PW3 Anuj Kaushik was a
\nprofessional photographer who was on the pay roll of the police as he used
\nto be called by the police on every occasion whenever a photograph was
\nrequired to be taken for which he was paid remuneration and as such he was
\nnot an independent witness. Learned counsel has also urged that after the
\nalleged recovery was made the pistol was not sealed on the spot and that
\nthe recovery having been effected from an open place accessible to
\neveryone, it is not possible to hold that the appellant was in possession
\nof the aforesaid articles. Learned State counsel has supported the case of
\nthe prosecution and has urged that the evidence on record clearly
\nestablished that the appellant was in exclusive possession of pistol, bomb
\nand RDX and the learned Sessions Judge (Designated Court) had rightly
\nconvicted and sentenced him.\n<\/p>\n
PWI, NP Rai, has stated that after reaching PS Lisari Gate, he had summoned
\ntwo public witnesses, namely, Vipin and PW3 Anuj Kaushik out of whom only
\none has been examined in Court. PW3 has deposed that he works as a
\nphotographer for a magazine known as ‘Sachi Duniya’. He had received a
\nphone call from his office that there was a traffic jam near Medical
\nCollege and accordingly he started for the said place on his scooter to
\ntake photographs. However, he saw some police personnel near Lisari Gate
\nChaupla and inquired from them why they were standing there and on their
\nasking he accompanied the police party. He has admitted that he often goes
\nto the police stations in the city and he had been paid Rs. 640 for taking
\nthe photographs but he had not issued any receipt for the same. The
\nstatement of this witness shows that he is a frequent visitor to the police
\nstations and this may be on account of the fact that the police may have
\nbeen obliging him by asking him to take photographs on those occasions in
\nwhich taking of photographs was considered necessary. It is not possible to
\naccept his statement that though he was paid Rs. 640 by the police for
\ntaking the photographs but he did not issue any receipt. PW1 has admitted
\nthat though Lisari Gate locality was only two or three furlongs from the
\nplace from where recovery was made but no witness was summoned there. It,
\ntherefore, shows that the police made no effort to get any independent
\npublic witness at the time when the alleged recovery was made at the
\npointing out of A-l and the only public witness examined, appears to be a
\nperson who was not only intimate but was also obliged to them.\n<\/p>\n
The evidence on record clearly shows that the pistol alleged to have been
\nrecovered from the polythene bag which was allegedly taken out from the mud
\nby the appellant was not sealed on the spot. PW1 in his cross-examination
\nhas stated that the pistol was not sealed as it was factory made and in the
\nrecovery memo its “number” or “make” was not written as the same was not
\nclear and legible. However, the cartridges and bomb and RDX were sealed.
\nSimilar statement has been given by PW2, SN Tripathi and PW4 SP Sharma that
\nat the time when the pistol was deposited in the Malkhana, the same had not
\nbeen sealed. In the FIR, no details have been given to fix the identity of
\nthe pistol. PW4 has stated that the same was of Chinese make while PW6 Tej
\nPal Sharma, Head Constable of PS Lisari Gate, where the recovered articles
\nwere deposited, has stated that the same was of English make. In Amarjit
\nSingh v. State of Punjab, [1995] Supp. 3 SCC 217 and Sahib Singh v. State
\nof Punjab, [1996] 11 SCC 685, it has been held that the possibility of
\ntampering cannot be ruled out where the recovered articles were not sealed
\non the spot. We are little surprised that though the cartridges were sealed
\nbut the most important object, namely, the pistol was not sealed on the
\nspot and the same was deposited as it is in the police station and,
\nthereafter at the Malkhana. In our opinion the fact that the pistol alleged
\nto have been recovered at the pointing out of the appellant was not sealed
\non the spot coupled with the fact that neither its number nor its make,
\netc. to fix its identity was mentioned in the recovery memo or in the FIR,
\nraises considerable doubt regarding the factum of recovery.\n<\/p>\n
So far as the disclosure statement of the appellant is concerned, the same
\nwas admittedly made to police personnel and only that part of the statement
\nwould be admissible which is permissible under Section 27 of the Evidence
\nAct. The scope of this provision was explained by the Privy Council in the
\nwell known case of Pulukuri Kottaya and Ors. v. Emperor, AIR (1947) PC 67,
\nwherein it was held that it is fallacious to treat the “fact discovered”
\nwithin the section as equivalent to the object produced. The fact
\ndiscovered embraces the place from which the object is produced and the
\nknowledge of the accused as to this, and the information given, must relate
\ndistinctly to this fact. Information as to the past user, or the past
\nhistory, of the object produced is not related to its discovery in the
\nsetting in which it is discovered. Therefore, what is admissible is the
\nplace from where the polythene bag containing pistol and other articles was
\nallegedly recovered. The fact that some terrorist organisation had given
\nthe pistol and other articles to the appellant or its use would not be
\nadmissible.\n<\/p>\n
The other feature of the case is that the recovery was made from an open
\nplace which was accessible to all and everyone. PW1 NP Rai, has clearly
\nadmitted in his cross-examination that the recovery of the polythene bag
\nwas made from an open ‘Gher’ in a lonely place, where anyone could easily
\ncome. In Sanjay Dull v. State through C.B.I., Bombay, [1994] 5 SC 540 it
\nhas been held by a Constitution Bench that with a view to hold an accused
\nguilty of an offence under Section 5 of TADA, the prosecution is required
\nto prove satisfactorily that the accused was in conscious possession,
\nunauthorisedly in a notified area of any arm or ammunition of the specified
\ndescription. In Trimbak v. State of MP, AIR (1954) SC 39 recovery of
\ncertain stolen articles was made at the pointing out of the accused and on
\nthat basis he was convicted under Section 411 IPC by the High Court.
\nReversing the judgment it was held by this Court that when the field from
\nwhich the ornaments were recovered was an open one and accessible to all
\nand sundry, it is difficult to hold positively that the accused was in
\npossession of these articles. It was further held that the fact of recovery
\nby the accused is compatible with the circumstance of somebody else having
\nplaced the articles there and of the accused somehow acquiring knowledge
\nabout their whereabouts and that being so, the fact of discovery cannot be
\nregarded as conclusive proof that the accused was in possession of these
\narticles. In Raosaheb Balu Killedar v. State of Maharashtra, (1995) 3 Crl.
\nLaw Journal 2632 the accused had made a disclosure statement and had led
\nthe police party to a place behind a mill, pointed out the place and
\nhimself removed the earth and from a pit about 6 inches deep recovered a
\nrevolver loaded with a live cartridge wrapped in a polythene bag. It was
\nheld by this Court that the statement made by the accused was capable of an
\ninterpretation that the appellant had the knowledge about the concealment
\nof the revolver at the particular place from where it was got recovered and
\nnot that he had concealed [  the same and therefore it was not possible to
\nsay conclusively and beyond a reasonable doubt that the appellant had
\nconscious possession of the revolver and the cartridge. This principle was
\nreiterated in Khudeswar Dutta v. State of Assam,<\/a> [1998] 4 SCC 492 and it
\nwas held that mere knowledge of the accused that incriminating articles
\nwere kept at certain place does not amount to conscious possession and
\nconviction under Section 5 of TADA was set aside. The principle laid down
\nin the decisions of this Court referred to above is fully applicable here
\nand it is not possible to hold that the appellant was in possession of the
\narticles alleged to have been recovered from his possession.\n<\/p>\n
For the reasons discussed above, we are of the opinion that it will not be
\nsafe to uphold the conviction of the appellant as the evidence adduced by
\nthe prosecution fails to establish the charge against the appellant beyond
\nreasonable doubt. The appeal is accordingly allowed and the conviction of
\nthe appellant and also the sentence imposed upon him by the learned
\nSessions Judge (Designated Court), Meerut is set aside. The appellant is on
\nbail. He need not surrender. His sureties and bail bonds are discharged.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Salim Akhtar @ Mota vs State Of Uttar Pradesh on 9 April, 2003 Bench: S. Rajendra Babu, G. P. Mathur CASE NO.: Appeal (crl.) 685 of 2001 PETITIONER: SALIM AKHTAR @ MOTA RESPONDENT: STATE OF UTTAR PRADESH DATE OF JUDGMENT: 09\/04\/2003 BENCH: S. RAJENDRA BABU & G. P. MATHUR JUDGMENT: JUDGMENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-126100","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSalim Akhtar @ Mota vs State Of Uttar Pradesh on 9 April, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/salim-akhtar-mota-vs-state-of-uttar-pradesh-on-9-april-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Salim Akhtar @ Mota vs State Of Uttar Pradesh on 9 April, 2003 - 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