Singh Vs. State of Punjab  INSC 1138 (13 September 1996)
M.K. (J) Mukherjee M.K. (J) Kurdukar S.P. (J) M.K. Mukherjee, J.
appeal is directed against the judgment and order dated December 21, 1991
rendered by the Additional Judge, Designated Court, Amritsar in Sessions Case
No. 21 of 1991 convicting and sentencing the appellant under Section 25 of the
Arms Act, 1959 and Section 5 of the Terrorists and Disruptive Activities
(Prevention) Act, 1987.
to the prosecution case on May 12, 1990 at or about 12.30 P.M. when inspector Gurmit
Chand of Chheharata Police Station (P.W. 3) along with Sub Inspector Rattan Lal
(P.W. 2) and other police officials were on patrol duty near Bole-di-Bambi they
apprehended the appellant on suspicion and on search recovered a revolver with
six live cartriges from the bag he was holding in his right hand.
appellant pleaded not guilty to the above accusation and his defence was that
he was falsely implicated at the instance of his neighbour Sewa Singh.
prove its case, prosecution examined four witnesses of whom Manohar Lal
(P.W.1), a clerk in the office of the District Magistrate, Amritsar, proved the
sanction accorded for prosecution of the appellant under the Arms Act; P.Ws.2 and
3 spoke about the arrest of the appellant and the recovery of the revolver and
the cartridges from him and Sital Singh (P.W.4), an Armorer, claimed to have
mechanically tested the revolver and found it in working order. Accepting their
evidence the learned Judge recorded the impugned order of conviction and
first contended on behalf of the appellant that since no independent witness
was examined by the prosecution to prove the alleged recovery of the arms and
ammunitions from the appellant the Designated Court was not justified in convicting him relying solely upon the
evidence of the two police officers. It was next contended that since no
evidence was led by the prosecution to prove that the offensive articles were packeted
and sealed after their seizure the possibility of tampering with them could not
be ruled out. It was lastly contended that from the test report of P.W.4 (Ex.PF)
it would appear that one Head Constable Baita Singh produced the revolver
before him (P.W.4) but neither he was examined nor any other witness to explain
how he (the constable) got the revolver from P.W.3.
gone through the record we find much substance in each of the above
contentions. Before conducting a search the concerned police officer is
required to call upon some independent and respectable people of the locality
to witness the search. In a given case it may so happen that no such person is
available or, even if available, is not willing to be a party to such search.
It may also be that after joining the search, such persons later on turn
hostile. In any of these eventualities the evidence of the police officers who
conducted the search cannot be disbelieved solely on the ground that no
independent and respectable witness was examined to prove the search but if it
is found - as in the present case - that no attempt was even made by the
concerned police officer to join with him some persons of the locality who were
admittedly available to witness the recovery, it would affect the weight of
evidence of the Police Officer, though not its admissibility. We next find from
the record that the arms and ammunitions allegedly recovered from the appellant
and State of Punjab 1995 Supp. (3) SCC 217 this Court
has observed that non-sealing of the revolver at the spot is a serious
infirmity because the possibility of tampering with the weapon cannot be ruled
out. From the record we further find that there is no evidence to indicate with
whom the revolver was after its seizure by P.W.3 till it was sent to the Arms Expert
for testing through constable Baita Singh.
missing link also weakens the prosecution case. For all these infirmities we
are of the view. that the appellant is entitled to the benefit of reasonable
therefore, allow this appeal and set aside the conviction and sentence recorded
against the appellant. The appellant, who is on bail, is discharged from his
bail bonds. Fine, if paid, be refunded to him.