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PETITIONER: RAKESH KUMAR @ SACHDEVA @ DEVA

       Vs.

RESPONDENT: STATE (DELHI ADMN.)

DATE OF JUDGMENT23/11/1994

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J)

CITATION:  1994 SCC  Supl.  (3) 729 JT 1995 (2)   450  1994 SCALE  (4)1044

ACT:

HEADNOTE:

JUDGMENT: 1.The  appellant was placed on trial before  the  Designated Court  New Delhi to answer charges under Sections 5  of  the Terrorist  and Disruptive Activities (Prevention) Act.  1987 (’TADA’  for  short)  and  25 of the  Arms  Act,  1959.   On conclusion of trial the learned Court recorded and order  of conviction  against  the appellant in respect  of  both  the charges.   For  the conviction under section 5 of  TADA  the appellant was sentenced to suffer rigorous imprisonment  for 5  years  and to pay a fine of Rs. 5,000/-, in  default.  to suffer  rigorous  imprisonment  for 6  months  more  but  no separate  sentence  was  passed for  the  other  conviction. Hencc this appeal. 2.   Briefly  stated,  the prosecution case in that  in  the evening  of April 23, 1991 a police party, while  on  patrol duty in and around Palam Village, found the appellant standing near the bus stand with a bag in his possession. As his  movements  aroused suspicion they apprehended  him  and searched the bag, which was found to contain 8 country  made pistols  and 31 live cartridges. As the appellant could  not give  any satisfaction explanation for possession  of  those arms  and  ammunition’s, they were seized under  a  recovery memo and the packaged and sealed. A First Information Report was thereafter lodged against the appellant at Dabri  Police Station  and  S.I. Sube Singh took up investigation  of  the case.  In  course of investigation he forwarded  the  seized arms  and  ammunitions  to  the  Central  Forensic   Science Laboratory   (CFSL)  for  examination.  On   completion   of investigation  and  receipt  of  sanction  from  the  deputy Commissioner of Police, New Delhi to prosecute the appellant under  section 25 of the Arms Act he submitted charge  sheet against the appellant. 3. The appellant pleaded not guilty to the charges  levelled against  him  and  his contention was that  he  was  falsely implicated in the case at the instance of S.I. Sube Singh. 4.  To prove the apprehension of the appellant and  recovery

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of  the and ammunitions from his possession the  prosecution relied  upon the testimonies of Const.  Jagpal Singh (PW  1) and  Head Const.  Ramesh Kumar (PW 2).  Both of them  stated that  they  were  members of the police party  that  was  on patrol  duty  on the date in question.   They  detailed  the manner  in which the appellant was apprehended  at  the  bus stand  with  a  bag in his possession and  spoke  about  the recovery of the country made pistols and the cartridges from that  bag.   They also testified that a  recovery  memo  was prepared and signed 452 by them.  They next spoke about the packaging and sealing of those arms and ammunitions. 5.   Const.  Bhim Singh (PW 4) testified that on May 3, 1991 he  had taken the sealed parcels form the Malkhana of  Dabri Police  Station  to CFSL and delivered them  in  fact.   The report of CFSL (Ext.  A) shows that all the pistols were  in working  order and the cartridges were live.   Const.   Bhim Singh  (PW  4)  proved  the  sanction  accorded  by   Deputy Commissioner  of  Police under section 39 of  the  Arms  Act which  was marked by PW4/A.  Head Const.  Khush Ram  (PW  5) who  was the Duty Officer of Dabri Police Station  on  April 23, 1 991 proved the FIR Ex.PW5/A. Const.  Jasbir Singh  (PW 6)  proved  that  the  arms  and  ammunitions  seized   were deposited  in  the Malkhana of the police station  and  were forwarded to the CFSL from there through Const.  Bhim  Singh (PW 3). 6.   Having carefully gone through the evidence of PW 1  and PW  2,  two of the members of the raiding party, we  do  not find  any reason to disbelieve them, more particularly  when nothing could be elicited in cross examination to  discredit them.   On  the contrary, their evidence is  consistent  and corroborates each other. 7.   The  learned counsel appearing for the appellant  first contended  that  non-examination  of  S.I.  Sube  Singh  who investigated  into the case, raised a great suspicion  about the  truth and bona fides of the prosecution story.   We  do not  find any substance in the contention.  It appears  that in  spite of best efforts the prosecution could not  produce him  and  therefore-  no adverse presumption  can  be  drawn against the prosecution for his non-examination. That apart, nothing was elicited in cross examination any of the  prosecution witnesses wherefrom it could be  said  that the  Investigating  Officer’s  production  was   essentially required  to  give an opportunity to the  defence  to  cross examine him with reference to statements recorded by him un- der  section 161 Cr.  P.C. or any steps taken by him  during investigation.’  Ms non-examination, therefore, did  not  in any  way  affect  the prosecution  case  nor  prejudice  the appellant in his defence. 8.   The only other contention raised by the appellant   was that no public witness was    examined  though  the  alleged recovery  took  place  at a bus stand in  the  evening.   It appears from the evidence of both PWs 1 and 2 that in  spite of  requests  made none of the shopkeepers  and  the  people present  there was willing to join the search party.  As  we do  not find any reason to disbelieve the evidence of PWs  1 and  2 that their sincere attempt to secure  public  witness failed,  no adverse inference for such  nonexamination  can, therefore, be drawn. 9.   On the conclusion as above we dismiss the appeal. 453