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PETITIONER: BRIJ PAL

       Vs.

RESPONDENT: STATE (DELHI ADMINISTRATION)

DATE OF JUDGMENT:       01/02/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  1996 SCC  (2) 676        1996 SCALE  (1)816

ACT:

HEADNOTE:

JUDGMENT:                       O R D E R      This appeal  has been  preferred by the appellant under Section  19  of  the  Terrorist  and  Disruptive  Activities (Prevention) Act  (hereinafter referred to as the TADA Act). By the  judgment dated 5.8.94, the learned Judge, Designated Court No.11, Delhi has convicted the appellant under Section 5 of  the TADA  act and  sentenced him  to  suffer  rigorous imprisonment for five years together with a fine of Rs.500/- , in  default, to  undergo further rigorous imprisonment for 15 days.  According to  the  prosecution  case,  the  police received  a  secret  information  that  one  person  of  bad character who had been involved in some murder cases in U.P. was present  with some  unauthorised weapons at the Libaspur bus stand,  Dhaula Kuan.  The police  thereafter organized a raiding party. They approached some public persons to become witness to  search and  seizure, but  as no  one  agreed  to become witness  for search  and seizure  of such person, the police thereafter  organized a  raid with  the help  of  the police  officials.   At  about  1.30  P.M.  on  the  day  of occurrence at  the Libaspur  bus stand,  the  appellant  was found and  on search  of his  person  a  countrymade  pistol loaded with one live cartridge and two other live cartridges were recovered  by the  police. After  taking measurement of the said  pistol and one of the cartridges, a sketch map was prepared and  the said weapon and cartridges were sealed and sent by  the police  to police  Mal Khana.  After  obtaining necessary sanction  from the authorities concerned, the said case under  Section 5  of the TADA Act was initiated against the appellant.      The  prosecution   in  this   case  has  examined  Head Constable  Sathir   Singh  (PW  1),  Jagdish  Chander,  Sub- Inspector PW.2), ASI Mahipal Singh (PH.3), ASI Santokh Singh (pW.4), Head  Constable Baljit  Singh (pW.5)  and  Constable Ramesh Kumar (pW,6). It may be stated here that pW.5 was the Incharge of the Police Mal Khana where the seized pistol and the cartridges  were kept in sealed cover and he has deposed

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to the effect that he received the said articles in a sealed parcel. They  were also  kept in  a sealed  cover until they were sent  to the  ballistic expert  at BTP Unit, Old Police Line. The  armorer  has  also  deposed  that  he  had  taken training about  the arms  and he  has also deposed that as a matter of  fact, he  fired one of the seized cartridges from the seized pistol and found the pistol in working condition. As the  prosecution case  was found to have been established beyond doubt  by the  deposition of  the said witnesses, the learned  designated  Court  convicted  the  appellant  under Section 5 of the TADA Act and passed the aforesaid sentence.      Mr.Kirpal Singh,  learned  counsel  appearing  for  the appellant as  Amicus Curiae,  submits that  according to the prosecution  case,  the  appellant  was  arrested  from  the Libaspur bus  stand, Dhaula  Kuan.  The  police  could  have procured  independent   witnesses  to   establish  that  the appellant was  in fact  apprehended by  the police  from the said place  as alleged  in the prosecution case and from his possession  the   said  pistol   and  the   cartridges  were recovered.  But   in  the  instant  case,  only  the  police personnel were  examined. In  the absence of any independent disinterested public  witness, solely  on the  basis of  the depositions  of   the  police   personnel,  the   order   of convictionagainst  the   appellant  should   not  have  been passed.  Learned   counsel  has  also  submitted  that  PW.2 examined as  armorer should  not be  held to  be  an  expert andifthe said pistol had not been tested by a proper expert, benefit of  doubt should  be given to the appellant. Learned counsel has  further submitted  that it  is the  case of the appellant that  he had  been falsely  implicated in the case because he  had not been arrested at the Libaspur bus stand. He was  apprehended by  the police  at Rana Pratap Bag along with one  Luxman, but  unfortunately such  case had not been properly appreciated by the learned Designated Court. He has submitted that  police had  released Luxman so that he could not be examined in support of his case.      We have  looked into the depositions given in this case and the  judgment given  by the learned Designated Judge. It appears that  the prosecution  case has  been established by cogent evidences  given  by  the  witnesses  which  are  not inconsistent  or   contradictory.  In   our  view,   learned Designated Court has rightly held that since only the police personnel had  been examined in this case, their depositions are not  liable to be discarded, particularly when it is the specific case  of the prosecution that they tried to procure independent witnesses  from the  public, but  they failed in their attempt  to get  which independent  witnesses. In  the instant case, it has been established from the evidence that the pistol and cartridges were seized from the person of the appellant and  after getting  them properly sealed they were deposited in  the Police Mal Khana, in sealed condition. The Incharge of  the Mal  Khana has  deposed that  such  weapons remained intact  and in sealed condition until the same were sent for  being tested by the expert. So far as the question of examining  of the said pistol by the expert is concerned, it appears  from the  depositions of the said expert that he had obtained  certificate of technical competency and armour technical course from Bhopal and he had also long experience of inspection,  examination and testing of the fire arms and ammunition. In our view, the said police personnel should be held to  be expert  in arms. The decision relied upon by Mr. Singh in  Abdula Pochamma  Vs. State of A.P. (1989 Supp. (2) SCC 152)  in this  connection is  clearly distinguishable in the facts of this case. In the case of Abdula it was alleged by the  prosecution that  a grenade  was recovered  from the

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accused but whether the substance recovered was a grenade or not had  not been  examined by a proper expert and the court gave benefit  of doubt  by not placing implicity reliance on the testimony  of an  ASI that  the object was a grenade. In the instant case, we have already indicated that the armorer as a  matter of  fact, had  also fired one of the cartridges from  the   seized  pistol  which  was  recovered  from  the possession of the accused .      Learned counsel  for the  appellant has  also submitted that the  element of  conscious possession  of the  arms and ammunition had  not been  established in  this case.  We may only indicate  that it  is not the case of the appellant the he was  not aware  about the presence of the said ammunition and arms  in the  pocket of  his pant  or that  someone kept those materials  surreptitiously without  his knowledge.  On the contrary,  the case  of the  appellant was  that he  was falsely implicated  in this  case. We may also indicate here that once  a person  is found in conscious possession of any arm or  ammunition  in  a  notified  area  under  TADA,  the statutory presumption  under Section  5 of the TADA Act that such articles  were intended  to be  used for  terrorist and disruptive activities  is  attracted  as  indicated  in  the Constitution Bench  decision of  this Court in Sanjay Dutt’s case. It  is therefore  not necessary for the prosecution to establish  that  the  person  who  was  found  in  conscious possession of unauthorised arm in a notified area had really intended  to  use  the  same  for  terrorist  or  disruptive activities. No evidence by way of rebuttal to such statutory presumption has  been led  by the  accused. In the aforesaid circumstances, we  find no  reason  to  interfere  with  the impugned  judgment  of  the  court  below.  The  appeal  is, therefore, dismissed.