Kumar @ Sachdeva @ Deva Vs. State (Delhi Admn.)  INSC 604 (23 November 1994)
M.K. (J) Mukherjee M.K. (J) Anand, A.S. (J)
1994 SCC Supl. (3) 729 JT 1995 (2) 450 1994 SCALE (4)1044
appellant was placed on trial before the Designated Court New
Delhi to answer
charges under Sections 5 of the Terrorist and Disruptive Activities
(Prevention) Act. 1987 ('TADA' for short) and 25 of the Arms Act, 1959. On
conclusion of trial the learned Court recorded and order of conviction against
the appellant in respect of both the charges. For the conviction under section
5 of TADA the appellant was sentenced to suffer rigorous imprisonment for 5
years and to pay a fine of Rs. 5,000/-, in default. to suffer rigorous imprisonment
for 6 months more but no separate sentence was passed for the other conviction.
Briefly stated, the prosecution case in that in the evening of April 23, 1991 a police party, while on patrol
duty in and around Palam Village, found the appellant standing near the bus stand with a bag
in his possession. As his movements aroused suspicion they apprehended him and
searched the bag, which was found to contain 8 country made pistols and 31 live
cartridges. As the appellant could not give any satisfaction explanation for
possession of those arms and ammunition's, they were seized under a recovery
memo and the packaged and sealed. A First Information Report was thereafter
lodged against the appellant at Dabri Police Station and S.I. Sube Singh took
up investigation of the case. In course of investigation he forwarded the
seized arms and ammunitions to the Central Forensic Science Laboratory (CFSL)
for examination. On completion of investigation and receipt of sanction from
the deputy Commissioner of Police, New Delhi to prosecute the appellant under section 25 of the Arms Act he
submitted charge sheet against the appellant.
appellant pleaded not guilty to the charges levelled against him and his
contention was that he was falsely implicated in the case at the instance of
S.I. Sube Singh.
prove the apprehension of the appellant and recovery of the and ammunitions
from his possession the prosecution relied upon the testimonies of Const. Jagpal
Singh (PW 1) and Head Const. Ramesh Kumar (PW 2). Both of them stated that they
were members of the police party that was on patrol duty on the date in
question. They detailed the manner in which the appellant was apprehended at
the bus stand with a bag in his possession and spoke about the recovery of the
country made pistols and the cartridges from that bag. They also testified that
a recovery memo was prepared and signed 452 by them. They next spoke about the
packaging and sealing of those arms and ammunitions.
Const. Bhim Singh (PW 4) testified that on May 3, 1991 he had taken the sealed parcels
form the Malkhana of Dabri Police Station to CFSL and delivered them in fact. The
report of CFSL (Ext. A) shows that all the pistols were in working order and
the cartridges were live. Const. Bhim Singh (PW 4) proved the sanction accorded
by Deputy Commissioner of Police under section 39 of the Arms Act which was
marked by PW4/A. Head Const. Khush Ram (PW 5) who was the Duty Officer of Dabri
Police Station on April 23, 1 991 proved the FIR Ex.PW5/A. Const. Jasbir Singh
(PW 6) proved that the arms and ammunitions seized were deposited in the Malkhana
of the police station and were forwarded to the CFSL from there through Const. Bhim
Singh (PW 3).
Having carefully gone through the evidence of PW 1 and PW 2, two of the members
of the raiding party, we do not find any reason to disbelieve them, more
particularly when nothing could be elicited in cross examination to discredit
them. On the contrary, their evidence is consistent and corroborates each
learned counsel appearing for the appellant first contended that
non-examination of S.I. Sube Singh who investigated into the case, raised a
great suspicion about the truth and bona fides of the prosecution story. We do
not find any substance in the contention. It appears that in spite of best
efforts the prosecution could not produce him and therefore- no adverse
presumption can be drawn against the prosecution for his non-examination.
apart, nothing was elicited in cross examination any of the prosecution
witnesses wherefrom it could be said that the Investigating Officer's
production was essentially required to give an opportunity to the defence to
cross examine him with reference to statements recorded by him un- der section 161
Cr. P.C. or any steps taken by him during investigation.' Ms non-examination,
therefore, did not in any way affect the prosecution case nor prejudice the
appellant in his defence.
only other contention raised by the appellant was that no public witness was
examined though the alleged recovery took place at a bus stand in the evening.
It appears from the evidence of both PWs 1 and 2 that in spite of requests made
none of the shopkeepers and the people present there was willing to join the
search party. As we do not find any reason to disbelieve the evidence of PWs 1
and 2 that their sincere attempt to secure public witness failed, no adverse
inference for such non examination can, therefore, be drawn.
the conclusion as above we dismiss the appeal.