Singh . Vs. State  INSC 1217 (26 September 1996)
Anand, K.T. Thomas
O R D
appeal under section 19 of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (hereinater called the 'TADA') is directed against the judgment and
order dated 14th February, 1996 by which the appellant has been convicted for
an offence under section 5 of TADA and sentenced to undergo rigorous
imprisonment for eight years and to pay a fine of Rs.1,000/- and in default to
undergo simple imprisonment for six months.
prosecution case against the appellant is that on 6th April, 1992, PW.1 H.C. Maru
Ram, who was incharge of PCR Van No.Victor 79, Maruti Gypsy bearing registrtion
No.DDV 6920 based in Kailash Colony, alongwith constable Chander Pal and driver
constaable Raj Kumar, received a wireless message at about 2.05 p.m. to the
effect that a person wearing green coloured pant, green coloured shoes and
having a green coloured bag was present in suspicious circumstances and that if
his bag was searched it On the rifle there was a sticker with the inscription
in Gurmukhi "Naam Khummari Nanaka Charri Rahe Din Raat". On the
magazine also there was a sticker with the inscription "Raj Karega Khalsa"
in Gurmukhi. The rifle Ex.p1 alongwith two megazines Ex.P2 and P3 and the live
cartridges numbering 161 (24 live cartridges in one megazine besides 137 cartridges
) were taken into possession and were sealed into different parcels and sealed
with the seal of SBS. The other articles, found from the personal search and
from the search of the bags were also sealed into separate parcels and sealed
with the seal of SBS. The sealed parcels ware deposited with Moharror Malkhana
and were later on sent to the Central Forensic Science Laboratory. The report
of the Central Forensic Science Laboratory PW9/F shows that the sealed parcels
containing the arms and ammunitions with seal of SBS intact were received in
the laboratory and on testing the rifle it was found to be in a working order.
The ballistic expert opined that the rifle was an arm within the meaning of the
Arms Act. One test cartridge was fired from the rifle and it was opined that
161 cartridges which had been recovered were live cartridges. On completion of
the investigation, the appellant was tried for the offence under section 5 of
TADA and convicted and sentenced as noticed above.
prosecution with a view to connect the appellant with the crime examined nine withesses.
It produced in evidence the affidavit of Moharror Malkahana as also the reports
from the CFSL. Various document including the seizure memos etc. were also
produced at the trial. The appellant in his statement recorded under section
313 Cr.P.C. denied the prosecution allegations against him. He examined DW.1, Manjit
Singh, in his defence who had given a certificate to the effect that the appellant,
was bearing a good moral character.
have perused the evidence with the assistance of learned counsel for the
parties and examined the record.
counsel for the appellant submitted that there was a serious flaw in the
prosecution case inasmuch as while PW.1 deposed that what had been recovered
from the appellant was rifle AK-47, PW.7 in his evidence deposed that the
weapon recovered was AK-56 and that in question No.l put o the appellant under
section 313 cr.P.C. he was told that he had been found in possession of an
AK-56 rifle besides the live cartridges. On this basis it is aruged that the
identity of the weapon has been rendered W a doubtful. There is indeed this
variance in the evidence of PW.1 and PW.7.
however, in our opinion is not of much consequence.
rifle which was recovered from the appellant bore No.516275. That number was
mentioned in the seizure memo prepared at the spot. It was that weapon which
was sent to the CFSL and in its report Ext.PW.9/F the CFSL found that rifle
No.516275, Ex.P1, was in working order and conformed to the description of an
arm under the Arms Act. All the prosecution witnesses relating to recovery of
the arms and ammunitions including PW.1 and PW.7 in the Court identified rifle
bearing No.516275, Ex.P1, as the rifle which had been recovered from the
appellant at the time of his apprehension. PW.7 also identified rifla Ex.P1 as
that weapon. Nothing therefore turns on as to whether the rifle was described
as AK-47 by PW.1 and AK-56 by PW.7. During his cross-examination, PW.7 stated
that he had never seen an AK-56 rifle before and that he had never oprated any
such rifle. He did not even know how the megazine is fitted to an AK-56 rifle
or whether AK-56 is the only rifle which is made in China. It, therefore, appears to us that
describing of the rifle Ex.P.1, bearing No.516275 as AK-47 or AK-56, is not of
much consequence and does not create any doubt about the identity of the
weapon. There is no doubt from the prosecution evidence that the rifle which
recovered from the possession of the appellant was rifle Ex.P1 bearing
counsel for the appellant then submitted that though the appellant was arrested
from the t park where a number of witnesses were present, the prosecution had
not examined any independent witnesses and, therefore, the prosecution case had
been rendered doubtful. We cannot agree. None of the prosecution witnesses who
have been examined bore any ill will or malice against the appellant.
they all belong to the police force but merely on that account their evidence
cannot be said to be tainted.
the departmental witnesses would be interested in the success of the
prosecution case prudence requires that their evidence be scrutinized with more
care. we have critically and carefully analysed the evidence of all the
prosecution witnesses and find that despite lengthy cross examination nothing
has been brought out which may in any way discredit their testimony at all.
These witnesses had no reason to falsely implicate the appellant. They have
stood the test of cross examination. The report of the CFSL lends enough
corroboration to their evidence. It is in the evidence of PW.1 that when the
appellant was over-powered! some persons were looking from a distance but none
of them came at the spot. Under these circumstances not joining any of those
witnesses cannot affect the credit-worthiness of the prosecution case.
view to convict an accused under section 5 of TADA, the Constitution Bench in sanjay
Dutt vs. State, (1994) 5 SCC 410 laid down that the prosecution is required to
prove that the accused was in conscious 'possesssion', 'unauthorisedly', in a
notified area of any of the arms and ammunition specified in Columns 2 and 3 of
Category I or Category III (a) of Schedule I to the Arms Rules, 1962 or of
bombs, dynamite or other explosive substances and that no further nexus with
any terrorist or disruptive activity is required to be proved the prosecution,
in view of the statutory presumption and the conviction would be valid on the
strength of the presumption.
present case there is ample evidence on the record to show that the appellant
was in conscious possession of rilfe Ex P1 bearing No.516275 which weapon
answered the description of an arm under the Arms Act as per the report of the
CFSL. The appellant had no licence for such a weapon and was thus in an unauthorised
possession of the same. There is no dispute that the recovery was made from the
area which was a declared notified area. All the ingredients essential for
proving of an offence under section 5 of TADA stand established in the case and
his conviction is well merited.
parting with the case would be relevant to point out that even if it could be
possible to say, for the sake of arguments, though there is no basis for it,
that the description of the weapon put to the appellant in his statement under
section 313 Cr.P.C. as AK-56 had prejudiced him, it would still not affect the
prosecution case because there is nothing on the record to show that Rifle
Ex.P1 was not an AK-56 rifle. Besided in answer to question No.4 put to the
appellant in his statement under section 313 Cr.P.C.
attention was specifically invited to the recovery of rifle Ex.P1 besides the
cartridges. Therefore, there could be no possibility of any prejudice
having/caused to the appellant by the mentioning of AK-56 in question No.1.
161 live cartridges were also recovered from his possession. The law laid down
by this Court in Paras Ram vs. State of Haryana, (1992) 4 SCC 662, that for an
offence under Section 5, the recovery must be of "arms and
ammunitions" and not of either arm or "ammunition" has been held
to be not good law by the Constitution Bench in Sanjay Dutt's case (supra)
wherein it was opined that while interpreting the expression arms and
"ammunitions" in section 5 of TADA, the words have to be read disjuntively
and not conjunctively. The appellant was found to be in possession of 161 live
cartridge consciously and unauthorisedly in a notified area. This recovery by
itself would attract the provisions of Section 5 of TADA.
next question, however, is with regard to the quantum of sentence.
appellant has been awarded sentence of 8 years rigrous imprisonment besides a
fine Or Rs. 1,000/. He was about 20 years of age. In the facts arc
circumstances of the case, in our opinion, it would meet the ends of Justice if
the substantive sentence of the appellant is reduced from 8 years rigorous imprisonment
to six years rigorous imprisonment while maintaining the sentence of fine and
the punishment in default thereof. We make an order accordingly.
the above modifiction in sentence the appeal is partly allowed.