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PETITIONER: BALBIR SINGH .

       Vs.

RESPONDENT: STATE

DATE OF JUDGMENT:       26/09/1996

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  under section  19  of  the  Terrorist  and Disruptive Activities  (Prevention)  Act,  1987  (hereinater called the  ’TADA’) is  directed against  the  judgment  and order dated  14th February,  1996 by which the appellant has been convicted for an offence under section 5 of TADA and sentenced to undergo rigorous imprisonment for eight years and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for six months.      The prosecution  case against  the appellant is that on 6th April, 1992, PW.1 H.C. Maru Ram, who was incharge of PCR Van No.Victor  79, Maruti  Gypsy bearing  registrtion No.DDV 6920 based  in Kailash  Colony, alongwith  constable Chander Pal and  driver constaable  Raj Kumar,   received a wireless message at  about 2.05  p.m. to  the effect  that  a  person wearing green coloured pant, green coloured shoes and having a  green   coloured  bag   was  present   in      suspicious circumstances and  that if  his bag  was searched  it On the rifle there  was a  sticker with the inscription in Gurmukhi "Naam Khummari Nanaka Charri Rahe Din Raat". On the magazine also there  was a  sticker with  the inscription "Raj Karega Khalsa" in Gurmukhi. The rifle Ex.p1 alongwith two megazines Ex.P2 and  P3 and the live cartridges numbering 161 (24 live cartridges in  one megazine  besides 137  cartridges )  were taken into possession and were sealed into different parcels and sealed  with the  seal of SBS. The other articles, found from the  personal search  and from  the search  of the bags were also  sealed into  separate parcels and sealed with the seal of SBS. The sealed parcels ware deposited with Moharror Malkhana and  were later  on sent  to the  Central  Forensic Science Laboratory.  The  report  of  the  Central  Forensic Science Laboratory  PW9/F  shows  that  the  sealed  parcels containing the  arms and ammunitions with seal of SBS intact were received  in the laboratory and on testing the rifle it was found  to be  in a  working order. The ballistic  expert opined that  the rifle  was an arm within the meaning of the Arms Act. One test cartridge was fired from the rifle and it was opined that 161 cartridges which had been recovered were live cartridges.  On completion  of the  investigation,  the appellant was  tried for the offence under section 5 of TADA

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and convicted and sentenced as noticed above.      The prosecution  with a  view to connect the  appellant with the  crime examined  nine withesses.  It    produced in evidence the  affidavit of  Moharror Malkahana  as also  the reports  from  the  CFSL.  Various  document  including  the seizure memos  etc. were  also produced  at the  trial.  The appellant  in  his  statement  recorded  under  section  313 Cr.P.C. denied  the prosecution  allegations against him. He examined DW.1,  Manjit Singh, in his defence who had given a certificate to  the effect that the appellant, was bearing a good moral character.       We  have perused  the evidence  with the assistance of learned counsel for the parties and examined the record.       Learned counsel for the appellant submitted that there was a serious flaw in the prosecution case inasmuch as while PW.1  deposed  that  what  had  been  recovered    from  the appellant was rifle AK-47, PW.7 in his evidence deposed that the weapon recovered was AK-56 and that in question No.l put o the  appellant under  section 313 cr.P.C. he was told that he had  been found  in possession  of an AK-56 rifle besides the live  cartridges. On  this basis  it is  aruged that the identity of the weapon has been rendered W a doubtful. There is indeed  this variance  in the evidence of  PW.1 and PW.7. That, however,  in our  opinion is  not of much consequence. The rifle  which was  recovered from  the    appellant  bore No.516275. That  number was  mentioned in  the seizure  memo prepared at  the spot.  It was that weapon which was sent to the CFSL  and in  its report  Ext.PW.9/F the CFSL found that rifle No.516275,  Ex.P1, was  in working order and conformed to the  description of  an arm  under the  Arms Act. All the prosecution witnesses  relating to  recovery of the arms and ammunitions including  PW.1 and PW.7 in the Court identified rifle bearing  No.516275, Ex.P1, as the rifle which had been recovered  from   the  appellant   at  the   time   of   his apprehension. PW.7  also  identified  rifla  Ex.P1  as  that weapon. Nothing therefore turns on as to whether the rifle was described as AK-47 by PW.1 and AK-56 by PW.7. During his cross-examination, PW.7 stated that he had never seen an AK-56 rifle before and that he had never oprated any such rifle. He did not even know how the megazine is fitted to an AK-56 rifle or whether AK-56 is the only rifle which is made in China. It, therefore, appears to us that describing of the rifle  Ex.P.1, bearing  No.516275 as  AK-47 or AK-56, is not of  much consequence and does not create any doubt about the identity  of the  weapon. There  is no  doubt  from  the prosecution evidence that the rifle which recovered from the possession of the appellant was rifle Ex.P1 bearing No.516275.      Learned counsel  for the appellant then  submitted that though the  appellant was  arrested from  the t park where a number of  witnesses were  present, the  prosecution had not examined  any  independent  witnesses  and,  therefore,  the prosecution case  had been  rendered doubtful.    We  cannot agree. None  of the  prosecution witnesses  who have    been examined bore  any ill will or malice against the appellant. Ofcourse, they  all belong to the police force but merely on that account  their evidence  cannot be  said to be tainted. Since the  departmental witnesses would be interested in the success of the prosecution case prudence requires that their evidence be  scrutinized with  more care. we have critically and carefully  analysed the  evidence of all the prosecution witnesses and  find that  despite lengthy  cross examination nothing has  been brought out which may in any way discredit their testimony  at all.  These witnesses  had no  reason to falsely implicate the appellant. They have stood the test of

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cross examination.  The report  of  the  CFSL  lends  enough corroboration to  their evidence.  It is in the  evidence of PW.1 that  when the appellant was over-powered! some persons were looking  from a  distance but  none of them came at the spot. Under  these circumstances  not joining  any  of those witnesses  cannot   affect  the   credit-worthiness  of  the prosecution case.      With a  view to  convict an  accused under section 5 of TADA, the  Constitution Bench  in  sanjay  Dutt  vs.  State, (1994) 5  SCC 410 laid down that the prosecution is required to prove  that the  accused was  in conscious ’possesssion’, ’unauthorisedly’, in  a notified area of any of the arms and ammunition specified  in Columns  2 and  3 of  Category I or Category III (a) of Schedule I to the Arms Rules, 1962 or of bombs, dynamite  or other  explosive substances  and that no further nexus  with any  terrorist or disruptive activity is required to  be proved  the  prosecution,  in  view  of  the statutory presumption  and the  conviction would be valid on the strength of the presumption.      In the  present case  there is  ample evidence  on  the record  to   show  that   the  appellant  was  in  conscious possession of  rilfe Ex  P1 bearing  No.516275 which  weapon answered the description of an arm under the Arms Act as per the report  of the  CFSL. The  appellant had  no licence for such a  weapon and was thus in an unauthorised possession of the same.  There is  no dispute  that the  recovery was made from the  area which  was a  declared notified area. All the ingredients  essential  for  proving  of  an  offence  under section 5  of TADA  stand established  in the  case and  his conviction is well merited.      Before parting with the case would be relevant to point out that  even if it could be possible to  say, for the sake of arguments,  though there  is no  basis for  it, that  the description of  the weapon  put  to  the  appellant  in  his statement under  section 313 Cr.P.C. as AK-56 had prejudiced him, it would still not affect the prosecution  case because there is  nothing on the record to show that Rifle Ex.P1 was not an  AK-56 rifle.  Besided in answer to question No.4 put to the  appellant in his statement under section 313 Cr.P.C. his attention  was specifically  invited to  the recovery of rifle Ex.P1  besides the  cartridges. Therefore, there could be no  possibility of  any prejudice  having/caused  to  the appellant by  the mentioning  of  AK-56  in  question  No.1. Besides, 161  live cartridges  were also  recovered from his possession. The law laid down by this Court in Paras Ram vs. State of  Haryana, (1992)  4 SCC  662, that  for an  offence under Section  5,  the  recovery  must  be  of    "arms  and ammunitions" and  not of either arm or "ammunition" has been held to  be not good law by the Constitution Bench in Sanjay Dutt’s  case  (supra)  wherein  it  was  opined  that  while interpreting  the   expression  arms  and  "ammunitions"  in section 5  of TADA,  the words  have to be read disjuntively and not  conjunctively. The  appellant was  found to  be  in possession   of   161   live   cartridge   consciously   and unauthorisedly in  a notified  area. This recovery by itself would attract the provisions of Section 5 of TADA.      The next  question, however,  is  with  regard  to  the quantum of sentence.      The appellant  has been  awarded sentence  of  8  years rigrous imprisonment  besides a  fine Or  Rs. 1,000/. He was about 20 years of age. In the facts arc circumstances of the case, in  our opinion,  it would meet the ends of Justice if the substantive  sentence of the appellant is reduced from 8 years  rigorous   imprisonment   to   six   years   rigorous imprisonment while  maintaining the sentence of fine and the

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punishment in default thereof. We make an order accordingly. With the  above modifiction in sentence the appeal is partly allowed.