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PETITIONER: MOHAN SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT08/03/1995

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) RAY, G.N. (J)

CITATION:  1995 SCC  (3) 192        JT 1995 (3)     7  1995 SCALE  (2)126

ACT:

HEADNOTE:

JUDGMENT: FAIZAN UDDIN, J.: 1.   This  appeal  under  Section  16  of  the  Terrorist  & Disruptive  Activities  (Prevention)  Act,  1985  has   been directed against the judgment dated 18.4.1988 passed by  the Additional Judge, Designated Court, Faridabad at Narnaul  in T  &  DA (P) Act Case No. 3/1988 whereby the  appellant  has been  convicted under Section 25 of the Arms Act  read  with Section  5 of Terrorist and Disruptive Activities Act,  1985 (hereinafter  referred to as TADA) and sentenced to  undergo rigorous  imprisonment for five years and to pay a  fine  of Rs.   1000/-,  in  default of payment  of  find  to  undergo further rigorous imprisonment for a period of six months. 2.   The  prosecution case was that on 25.10.1987 when  Sub- Inspector,  Baljit Singh, PW.7 alongwith other police  offi- cials was on round for checking Railway Station they spotted the  appellant  sitting in the waiting hall of  the  railway station,  Rewari  and seeing Police  party  started  walking which raised suspicion.  On personal search of the appellant one country made 12 bore pistol, Ext.  PI was recovered from the  right side dub of his pant for which the appellant  had no  permit or licence.  The said pistol was seized from  the possession of the appellant.  The Sub-Inspector Baljit Singh sent a rukka, Ext.  PA to the Police Station, G.R.P.S. which was  received  by ASI Virender Singh PW 1 on  the  basis  of which he recorded formal F.I.R. Ext.  PA/1.  The said pistol was examined by the Armourer Head Constable, Chotu Ram, PW 4 and on testing the said pistol he found it to be in  working order  as  per  his report Ext.  PE.   After  obtaining  the sanction  Ext.   PD  accorded by  the  District  Magistrate, Namaul  the appellant was sent up for trial before the  Des- ignated Court.  The appellant pleaded not guilty and claimed trial.  In his statement 9 recorded  under Section 313, Cr.  P.C. the appellant  denied the  allegation of recovery of the alleged pistol  from  his

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possession  and stated that he was falsely implicated.   The appellant  also  examined Lal Singh, DW 1, a member  of  the Village  Panchayat  of his village and one Prithi, DW  2  as defence  witnesses.   The learned Trial Judge  accepted  the prosecution evidence and, therefore, convicted and sentenced the appellant as noticed above. 3.       Learned  counsel for the appellant  submitted  that there  is  no  reliable evidence on record  to  support  the conviction  of  the appellant yet learned  Trial  Judge  has convicted  the appellant without proper appreciation of  the prosecution  evidence  by accepting the evidence  of  highly interested witnesses.  He further submitted that though  the incident  is  said to have occurred at a public place  on  a railway  platform,  Rewari  where a  number  of  independent public  witnesses were available to be joined  as  witnesses for the search and recovery yet none of them were called  to stand as witness and on the contrary one Hira Lal, PW 5  was examined as a witness for search and seizure who is  nothing but  a  chance witness.  Learned counsel for  the  appellant further submitted that the prosecution evidence suffers from various infirmities which rendered the prosecution story  as wholly  doubtful on which no conviction can legitimately  be based.   It was also contended that the learned Trial  Judge conveniently  ignored  the defence evidence adduced  by  the appellant for which there is no reasonable ground to  reject the same. 4.   We  have minutely scrutinised the prosecution  evidence as  well  as the defence evidence on record as this  is  the first and the last appeal provided under the law and on such close  scrutiny of the evidence we find substance  and  much force in the aforementioned submissions made by the  learned counsel for the appellant. 5.   The  prosecution case with regard to the search of  the appellant  and  seizure of a country made  pistol  from  the possession  of the appellant rests on the evidence  of  Hira Lal, PW 5, Head Constable Desh Raj, PW 6 and  Sub-inspector, Baljit  Singh, PW 7. The rest of the  prosecution  witnesses are  formal  in  nature.  PW 6 and PW 7 as  said  above  are police  officials being Head Constable and Sub-Inspector  of Police  respectively.  Only Hira Lal, PW 5 is said to be  an independent  witness.   According  to  the  prosecution  the investigation had taken place in the waiting hall of  Rewari Railway  Station.   Head Constable, Desh Raj, PW  6  clearly deposed  in  cross examination that 10 to  20  persons  were present  in  the  waiting  hall at  that:  time.   From  the evidence  of  Desh Raj, PW 6 and Baljit Singh, PW  7  it  is clear that the Railway Booking Office and tea vendors  stall were  located  near  the  place  where  the  appellant   was apprehended  and.  searched.  But no one  from  amongst  the persons sitting in waiting hall or any one from the  booking office   or  tea  stall  was  joined  as  witness   by   the investigation in. the search and seizure of the country made pistol  said to have been recovered from. the possession  of the  appellant.  From the evidence of PW 6 and PW 7 it  does not appear that they made any effort whatsoever to call  any public  witness or railway officials working in the  booking office.  while  taking  the  search  of  the  appellant  and recovery of pistol in that process.  No explanation is forth coming  for  not joining and  independent  witness.   Baljit Singh, PW 7, however, preferred to pick up Hira 10 Lal,PW  5  who  is  nothing  but  a  mobile  sweet  vendor.. According  to the prosecution Hira Lal happened to be  there when  the appellant was apprehended at that particular  time when  search  of his person was made and  the  country  made

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pistol  is said to have been recovered.  In these facts  and circumstances when the police officials deliberately avoided to  join  any  public witness or  railway  officials  though available at the time when the appellant was apprehended the evidence of Hira Lal who is nothing but a chance witness and the  evidence  of police officials PW 6 and PW 7 has  to  be closely scrutinised with certain amount of care and caution. 6.   It is significant to note that the mobile sweet vendor, PW  5  stated that he knew the  Sub-Inspector  Baljit  Singh since  he was posted in Police Station, G.R.P, Rewari  while Baljit Singh, PW 7 denied this fact probably to show he  was stranger to him so as to give the colour of credence to  his evidence.   According to the statement of Hira Lal, PW 5  it took  about one and a half hour in completing  the  investi- gation while according to Head Constable, Desh Raj, PW 6 and Sub-Inspector,  Baljit Singh, PW 7 it took about four  hours in completing the proceedings at the spot.  It is  difficult to appreciate and comprehend the statement of Desh Raj, PW 6 and Baljit Singh, PW 7 as to how it took about four hours in completing  the  investigation.  Further  the  statement  of police officials PWs 6 and 7 goes to show that when they had gone to the railway station, Rewari for purpose of checking, the  appellant who was sitting on a bench in  waiting  hall, got  up and started walking towards outside which  raised  a suspicion  and, therefore, he was apprehended near the  tea- stall  while the mobile sweet vendor Hira Lal, PW 5  deposed that  the appellant was apprehended while he was sitting  in the  waiting hall itself Not only this but according to  the case  diary  statement  made  by Hira Lal,  PW  5  and  Head Constable, Desh Raj, PW 6, the pistol was recovered from the right  pocket of the pant of the appellant.  But during  the course of their evidence before the trial Court they deposed that  the  pistol was recovered from the right  dub  of  the pant.   This  discrepancy though of a minor nature  but  the totality  of  the evidence discussed  above  and  collective discrepancies  noticed above do not inspire  confidence  and creates a serious doubt in the prosecution case.  In view of such  a discrepant evidence we find it difficult to  sustain the conviction of the appellant for the alleged recovery and seizure of the pistol from his possession. 7.   Having regard to the evidence adduced by the  appellant in  defence, further question arises whether  provisions  of Section 5 of TADA arc attracted to the facts of the  present case,  or not.  In the case of Sanjay Dutt v. State [1994  5 SCC  410], a Constitution Bench of this Court held  that  in order  to attract Section 5 of TADA the accused must  be  in conscious  ’possession’,  ’unauthorisedly’  in  ’a  notified area’  of any of the specified arms or ammunition, and  when these   ingredients  arc  found  to  exist   the   statutory presumption arise that the arms and ammunition were meant to be used for a terrorist or disruptive act and on that  basis alone  conviction  under Section 5 of TADA can be  made  and that such a presumption is rebuttable by the accused who has a  right  to  prove nonexistence of any  fact  essential  to constitute an ingredient of Section 5 such as the possession being not for any terrorist or disruptive activity.  It  has also been laid 11 down  that the burden of proof on the accused is of  greater probability and not so heavy as it lies on the  prosecution. In  the  present  case  the area  where  the  appellant  was apprehended  is no doubt a notified area and if the  seizure is  accepted,  the  possession of the  country  made  pistol without  permit  or licence would - amount  to  unauthorised possession  of  an arm and, therefore,  a  presumption  will

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arise  that such possession of arm was meant to be used  for terrorist or disruptive act unless rebutted and proved  that such  possession  was not for any  terrorist  or  disruptive activity.   In  the present case the appellant  has  adduced evidence  by examining two witnesses in defence.  DW 1 is  a member  of  Panchayat of village from  which  the  appellant himself  hails, who deposed that the appellant is  known  to him  who  has a good moral character and is not  a  previous convict.   He  also stated that on the day  of  the  alleged occurrence the appellant was going to one Prithi of  village Chhaper.   DW 2 a resident of village Chhaper  also  deposed that the appellant is known to him for the last 20 years and further  stated that the father of the appellant  had  asked him to manage some job for the appellant and that on the day of  the alleged occurrence the appellant was coming  to  him when  he  was involved in the present case.   This  evidence adduced in defence stands unshaken.  There is no evidence to show  that  the  appellant  had ever  acted  in  any  manner indicating that he was indulging in terrorist or  disruptive activity and the prosecution case rests entirely on the pre- sumption that has to be drawn under Section 5 of TADA.   But the  positive evidence adduced by the appellant  in  defence goes  to  show that his antecedents are good enough  and  he bears  a  good moral character.  He is also not  a  previous convict  and  that he has never indulged in  any  subversive activities.   This evidence, in our  opinion,  probabilities the plea of defence and is good enough to rebut the presump- tion  under Section 5, TADA to the effect that  the  alleged possession  of  country made pistol was not  meant  for  any terrorist  or disruptive activity.  But since we  find  that the  prosecution evidence does not inspire  confidence  with regard  to the recovery and seizure of alleged  pistol  from the possession of the appellant, the application of  Section 5 TADA and conviction thereunder does not arise. 8.   For  the  reasons  stated above the  appeal  is  hereby allowed.   The conviction of the appellant under Section  5, TADA  read  with  Section  25  of  Arms  A  with   sentences thereunder  is  set aside.  The appellant is on  bail.   His bail-bonds are cancelled. 13