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Tahir v. State (Delhi) .
Factual and Procedural Background
On 14 November 1990, communal riots erupted near Idgah Park, Delhi, after allegedly provocative speeches were delivered. Amidst the unrest, the appellant was observed supporting the mob while brandishing a country-made pistol. Sub-Inspector Didar Singh apprehended the appellant at approximately 4:30 p.m. The weapon was seized, sealed, and later confirmed by the Central Forensic Science Laboratory to be a functional .12-bore firearm.
The location was within an area previously notified under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). After obtaining statutory sanction, investigators registered a case under Section 5 of TADA in addition to proceedings under the Arms Act. The Designated Court II, Delhi, convicted the appellant on 1 August 1995, sentencing him to five years’ rigorous imprisonment and a fine of ₹1,000 (with a two-month default sentence). The present judgment decides his appeal under Section 19 of TADA.
Legal Issues Presented
- Whether the conviction could safely rest on the testimony of police witnesses in the absence of independent civilian corroboration.
- Whether the 1987 notification declaring Delhi a “notified area” under TADA lapsed upon the Act’s expiry, thereby invalidating the Section 5 charge.
- Whether conscious possession of an unlicensed firearm in a notified area suffices for conviction under Section 5 of TADA without proof of direct involvement in terrorist activity.
Arguments of the Parties
Appellant's Arguments
- The four prosecution witnesses pivotal to conviction (PW 4–PW 7) were all police officials; without independent witnesses their testimony should not sustain a conviction.
- The 20 October 1987 notification declaring Delhi a notified area had lapsed with the expiry of TADA, so Section 5 could not apply.
- No evidence linked the appellant’s possession of the pistol to any terrorist activity; consequently, Section 5 was inapplicable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohd. Iqbal Madar Sheikh v. State of Maharashtra (1996) 1 SCC 722 | Expiry of TADA does not terminate proceedings initiated under the Act; notifications remain operative unless expressly withdrawn. | Used to reject the contention that Delhi ceased to be a notified area after TADA’s lapse. |
| Sanjay Dutt v. State through C.B.I., Bombay (II) (1994) 5 SCC 410 | Conscious possession of an unlicensed firearm in a notified area attracts Section 5 TADA irrespective of proof of terrorist intent. | Formed the doctrinal basis for affirming that mere possession of the pistol in a notified area warranted conviction under Section 5. |
Court's Reasoning and Analysis
1. Credibility of police witnesses: The Court subjected the testimonies of PW 4 to PW 7 to “careful scrutiny” and found them clear, cogent, and unshaken in cross-examination. It reaffirmed that there is no rule of law disqualifying police testimony; prudence merely demands heightened vigilance, which the Court exercised.
2. Validity of the notified area: Relying on Mohd. Iqbal Madar Sheikh, the Court held that proceedings and notifications survive the Act’s expiry. Because the area had never been de-notified, the appellant’s arrest occurred within a validly notified area.
3. Requirement of terrorist nexus: The Constitution Bench decision in Sanjay Dutt established that conscious possession of an unlicensed firearm in a notified area is sufficient for Section 5 liability. The Court deemed the appellant’s admitted possession “conscious” and the weapon a firearm under the Arms Act, thus satisfying the statutory ingredients.
4. Appellant’s defence: The appellant claimed false implication while drinking tea near his home, but offered no supporting evidence or motive for such fabrication. The Court found the defence unsubstantiated and outweighed by consistent prosecution evidence.
Holding and Implications
APPEAL DISMISSED; CONVICTION AND SENTENCE AFFIRMED.
The judgment reinforces two legal propositions: (i) police testimony, when reliable, can solely sustain a conviction, and (ii) conscious possession of an unlicensed firearm in a still-notified area remains punishable under Section 5 of TADA even after the Act’s expiry. The ruling has no apparent novel doctrinal impact but preserves existing precedent and maintains the appellant’s five-year sentence and fine.
Dr A.S Anand, J.— The appellant calls in question his conviction and sentence for an offence under Section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA) recorded by the Designated Court II, Delhi on 1-8-1995 through this appeal under Section 19 of TADA.
2. According to the prosecution case on 14-11-1990, a mob collected at Gurdwara Sis Ganj Sahib in Chandni Chowk, Delhi and moved in a procession towards the Idgah Park. A meeting was going on in Idgah Park where some provocative speeches were made by some of the speakers leading to communal riots. At about 4.30 p.m the riot was at a pitch and stones and other missiles, were hurled on the members of the opposite side from Idgah Road — Nawab Road of Sadar Bazar by the rioters. The appellant was supporting the mob of rioters and was found holding a countrymade pistol in his hand and waving it in the air. The police party made some arrests. The appellant was apprehended by SI Didar Singh SHO PW 4, who caught him along with the pistol. The appellant was then handed over to SI Sukhbir Singh PW 7 who arrested him in the riot case and later on formally arrested him in a case under Section 27 of the Arms Act for being in possession of a countrymade pistol without any authority also. A ruqa was sent by ASI Diwani Ram PW 6 to SI Ishwar Chand PW 1 who registered the FIR and copy of the FIR was sent to SI Sukhbir Singh PW 7. After the arrest of the appellant, the countrymade pistol was seized from his possession and sealed into a parcel which was kept with the Moharir Head Constable (Malkhana) PW 3. The parcel containing the countrymade pistol was later on sent to the Central Forensic Science Laboratory for examination and the ballistic expert opined that the .12 bore countrymade pistol was a firearm as defined in the Arms Act, 1959 and was found to be in a working order. The report from the Central Forensic Science Laboratory with the opinion of the expert was received on 27-12-1990. Since, the place from where the appellant was arrested along with the unauthorised firearm fell in the area notified under TADA, the investigating agency after obtaining the statutory sanction registered a case against the appellant for the offence under Section 5, TADA. On completion of the investigation, the appellant was sent up for trial before the Designated Court and on conviction for an offence under Section 5, TADA, was sentenced to undergo RI for five years and to pay fine of Rs 1000 and in default of payment of fine to undergo further RI for two months.
3. With a view to connect the appellant with the crime, the prosecution examined seven witnesses. PW 1 is the duty officer who recorded the formal FIR Ex. PW 1.A. Sealed parcel containing the countrymade pistol was taken from the Moharir Head Constable Malkhana PW 3 to the Central Forensic Science Laboratory by PW 2. These three witnesses are of a formal nature.
4. PW 4, Inspector Didar Singh was the SHO of the area at the relevant time and was present at the spot along with the police force. From the evidence of Inspector Didar Singh PW 4, it clearly emerges that the appellant was apprehended at the spot at about 4.30 p.m on 14-11-1990 and at that time he was found holding a countrymade pistol in his hand and waving it in the air. It also transpires from his evidence that because of provocative speeches made at Idgah Park communal rioting had ensued and brickbats, stones and other missiles were being hurled at the opposite party from the rioting mob present at the Idgah Road. Constable Mahabir Singh PW 5, fully corroborated the statement of Inspector Didar Singh PW 4 in all material particulars. It was he who took the ruqa from PW 4 to the police station for registration of the formal FIR. The evidence of Didar Singh PW 4, is also corroborated by ASI Diwani Ram PW 6 and Inspector Sukhbir Singh PW 7. Nothing has been brought out in the evidence of any of these witnesses to show as to why they should falsely depose against the appellant. They have given a clear and cogent version of the occurrence and their evidence inspires confidence. Their testimony has remained unshaken in cross-examination.
5. The appellant in his statement recorded under Section 313 CrPC claimed innocence and submitted that he was apprehended from the tea shop outside his house near Filmistan when some riot was going on near and around the Idgah and he was later on taken to the police station and implicated in this case. The appellant has, however, led no evidence in defence. The reason for the alleged false implication has, however, not been spelt out.
6. Mr D.D Thakur, the learned Senior Counsel appearing for the appellant, submitted that PW 4 to PW 7 on whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not safe to rely upon their testimony to sustain the conviction of the appellant. We cannot agree. In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.
7. Our critical analysis of the evidence of the aforesaid four police officials has created an impression on our minds that they are trustworthy witnesses and their evidence suffers from no infirmity whatsoever. Nothing has been brought out in their lengthy cross-examination which may create any doubt about their veracity. We find their evidence to be reliable. Keeping in view the circumstances for the situation, when the appellant was apprehended along with the countrymade pistol, the failure of the prosecution to examine any independent witnesses of the locality does not detract from the reliability of the prosecution case. Faced with the unimpeachable evidence of arrest of the appellant at the spot with the countrymade pistol, Mr Thakur submitted that the notification dated 20-10-1987 declaring Delhi to be a notified area for the purposes of TADA had lapsed because of the lapse of the Act itself and it could not be said that after the expiry of the Act, the area continued to be a notified area under TADA and therefore the appellant could not be convicted for an offence under Section 5, TADA. This submission has no force and merits rejection. In Mohd. Iqbal Madar Sheikh v. State of Maharashtra (1996) 1 SCC 722, a three-Judge Bench of this Court has expressly considered the effect of the expiry of the Act and opined that even after the expiry of the Act, the proceedings initiated under that Act would not come to an end without the final conclusion and determination and that they are to be continued in spite of the expiry of the Act. The notified area from where the appellant was apprehended has not been de-notified and therefore it is futile to contend that after the expiry of the Act, the area has ‘ceased’ to be a notified area.
8. Mr Thakur lastly submitted that since the prosecution had not brought any evidence on the record to show any connection between the appellant's holding the pistol and any terrorist activity as such, his conviction under Section 5 of TADA cannot be sustained. This argument also deserves a notice only to be rejected. A Constitution Bench of this Court in Sanjay Dutt v. State (II) (1994) 5 SCC 410 has laid down that mere conscious possession of an unlicensed firearm, which answers the description of an arm under the Arms Act, without any licence, in a notified area attracts punishment under Section 5 of TADA and an accused shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. In view of the established facts on the record, the law laid down by the Constitution Bench in Sanjay Dutt case (1994) 5 SCC 410, fully applies to the case of the appellant since the appellant was having conscious possession of the weapon which answers the description of an arm under the Arms Act in a notified area. The conviction of the appellant recorded under Section 5 of TADA by the learned Designated Court in the established facts and circumstances of the case is well merited.
9. There is no merit in this appeal which fails and is hereby dismissed.
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