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Balbir Singh . Vs. State [1996] INSC 1217 (26 September 1996)

A.S. Anand, K.T. Thomas

ACT:

HEAD NOTE:

O R D E R

This 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.

The 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.

The 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.

We have perused the evidence with the assistance of learned counsel for the parties and examined the record.

Learned 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.

That, however, in our opinion is not of much consequence.

The 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 No.516275.

Learned 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.

Ofcourse, they all belong to the police force but merely on that account their evidence cannot be said to be tainted.

Since 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.

With a 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.

In the 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.

Before 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.

his 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.

Besides, 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.

The next question, however, is with regard to the quantum of sentence.

The 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.

With the above modifiction in sentence the appeal is partly allowed.

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