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PETITIONER: SURJIT SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       07/08/1996

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KURDUKAR S.P. (J)

CITATION:  JT 1996 (7)   635        1996 SCALE  (5)683

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      The appellant  before us stands convicted and sentenced under Section 5 of the Explosive Substances Act, 1908 by the Designated Court  Karnal for  having been  found in unlawful possession of a hand-grenade and a detonator,      According to  the prosecution case on April 3 1994 when Inspector Sada  Ram (P.W. 5) and ASI Bench Singh (P.W. 4) of Panipat  City   police  Station   along  with  other  police personnel   were    proceeding   along    Jatal   road   for investigating into  a case  they found  the appellant coming from the  opposite direction.  On suspicion they apprehended him  and   started  interrogating.   On  interrogating.   On interrogation he  disclosed that  he had  kept  concealed  a hand-grenade underneath  a Barn  tree in front of his house. To work  out that  information the  police party  along with Pratap Singh  (PW 2),  a member  of the  public, went to the house of the appellant. Reaching there the appellant brought out the  hand - grenade along with a detonator after digging the earth from near a Barn tree. Inspector Sada Ram prepared a recovery memo in respect of those article, wrapped them in separated packets  and sealed  them. A  case was  thereafter registered  against   the  appellant   and  in   course   of investigation the  sealed packets  were sent to the forensic Science Laboratory  where the hand-grenade and the detonator were examined  by Dr.  O.P. Chugh  (PW 1).  Director of  the Laborat Laboratory.  He found the same to contain substances which on explosion could cause damage to live and properties around  the   point  their   explosion.  On   completion  or investigation the police submitted charge-sheet along with a sanction of the District Magistrate, Karnal to prosecute the appellant under the Explosive Substances Act.      The  appellant   pleaded  not  quality  to  the  change leyelled against him and his defence was that he was falsely implicated in  the  case.  In  support  of  his  defence  he examined  a   witness,  namely,  Sultan  Singh  (DW  1)  who

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testified that  there was  no tree  near the  house  of  the appellant as claimed by the prosecution witnesses.      The learned Judge of the Designated  Court accepted the case of the prosecution in preference to that of the defence and passed the impugned order of conviction and sentence.      Mr. Hardev Singh, the learned counsel appearing for the appellant, first  contended that since the appellant was not in custody of the police at the time he purportedly made the statement (Ex,  PF). which  according to the prosecution led to the  discovery, the  statement would  not  be  admissible under Section  27 of  the Evidence  Act. We  do not find any substance in  this contention  for not  only the  two police officers, namely  Inspector Sada Ram (P.W. 5) and ASI Bachan Singh testified  that the  above statement  was made  by the appellant after  he was  arrested by them but also by Pratap Singh (P.W.  2), who  categorically stated  that when he was called by   the  police he  found  the  appellant  in  their custody.      He next  contended that  the learned  Court below ought not to have placed any reliance upon the evidence of P.W.s 4 and 5  relating  to  the  recovery  as  their  evidence  was contradictory. This  argument is  also devoid  of any  merit for, apart from the fact that we have not found any material contradiction in their evidence, Pratap Singh (PW 2 ), whose credentials as  an independent  witness was  not - and could not  be   successfully  assailed   fully   supported   their testimonies regarding  recovery of  the offending  articles. Indeed in  his (P.W.  2’s) cross-examination  it was elected that the  hand-grenade and  the detonator  were lying buried about 6" below the ground. Having carefully gone through the testimonies of  the above  three witnesses  namely, P.Ws 2,4 and 5 we find no reason to disbelieve their consistent claim that the  appellant brought out a hand-grenade adn detonator which were  laying buried  below the Barh tree adjoining his house. As regards the evidence of Sultan Singh (D.W. 1) that there was  no Barh tree in between the shop of the appellant and the  adjoining road  we can  only say  that it  does not impair the prosecution case for the evidence led by it shows that the  tree in  question is  behind the    house  of  the appellant and not in front of his shop.      It was  next contended  on behalf of the appellant that the recovery  of the  offending articles  at the instance of the appellant  did not  necessarily  mean  that  he  was  in possession of  the same  for the  might have  only knowledge about those  articles being there. In other words, according to the  learned counsel  for the  appellant,  there  was  no evidence to  conclusively prove  that the  appellant was  in possession of  the offending  articles.  This  argumentation cannot be  accepted. In  his statement  (Ex.PF) made  before Inspector Sada  Saing (P.W.  5) which  was signed by him and attested by  the other  persons  present,  he  categorically stated that  he had  kept concealed  hand-grenade under  the Barh tree  in from of his hose. The statement so made, which we  find   no  reason  to  disbelieve,  leads  to  the  only conclusion that  the appellant was in possession of the hand - grenade and detonator for otherwise he could not have kept them  concealed  at  the  place  wherefrom  the  same  where recovered.      It was  lastly contended  that the sentence of two year rigorous imprisonment  impose upon  the  appellant  for  the conviction is  unduly harsh,  Considering the  nature of the offence committed  by the  appellant and  the opinion  of Dr Chugh (P.W. 1) that on explosion, the had-grenade found with the  appellant,   could  cause   damage  to  the  lives  and properties around the point of its explosion we do not think

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that the  sentence is  too severe. The appeal is, Therefore, dismissed. The appellant, who is no bail, will now surrender to his  bail  bonds  to  serve  out  the  remainder  of  his sentence.