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PETITIONER: SAHIB SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       13/09/1996

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      This appeal  is directed against the judgment and order dated December  21, 1991  rendered by  the Additional Judge, Designated Court,  Amritsar in  Sessions Case No. 21 of 1991 convicting and  sentencing the appellant under Section 25 of the Arms  Act, 1959  and Section  5 of  the  Terrorists  and Disruptive Activities (Prevention) Act, 1987.      According to the prosecution case on May 12, 1990 at or about 12.30  P.M. when  inspector Gurmit Chand of Chheharata Police Station  (P.W. 3) along with Sub Inspector Rattan Lal (P.W. 2) and other police officials were on patrol duty near Bole-di-Bambi they  apprehended the  appellant on  suspicion and on  search recovered  a revolver with six live cartriges from the bag he was holding in his right hand.      The  appellant   pleaded  not   guilty  to   the  above accusation  and   his  defence   was  that  he  was  falsely implicated at the instance of his neighbour Sewa Singh.      To prove  its case, prosecution examined four witnesses of whom  Manohar Lal  (P.W.1), a  clerk in the office of the District Magistrate,  Amritsar, proved the sanction accorded for prosecution  of the appellant under the Arms Act; P.Ws.2 and 3  spoke about  the arrest  of  the  appellant  and  the recovery of  the revolver  and the  cartridges from  him and Sital  Singh   (P.W.4),  an   Armorer,   claimed   to   have mechanically tested  the revolver  and found  it in  working order. Accepting  their evidence  the learned Judge recorded the impugned order of conviction and sentence.      It was  first contended on behalf of the appellant that since no independent witness was examined by the prosecution to prove  the alleged  recovery of  the arms and ammunitions from the appellant the Designated Court was not justified in convicting him  relying solely  upon the evidence of the two police  officers.  It  was  next  contended  that  since  no evidence was  led by  the  prosecution  to  prove  that  the offensive articles  were packeted  and  sealed  after  their seizure the  possibility of tampering with them could not be

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ruled out. It was lastly contended that from the test report of P.W.4  (Ex.PF) it  would appear  that one  Head Constable Baita Singh  produced the  revolver before  him (P.W.4)  but neither he was examined nor any other witness to explain how he (the constable) got the revolver from P.W.3.      Having gone  through the  record we find much substance in each of the above contentions. Before conducting a search the concerned  police officer  is required to call upon some independent  and  respectable  people  of  the  locality  to witness the search. In a given case it may so happen that no such person  is available  or, even  if  available,  is  not willing to  be a  party to  such search. It may also be that after  joining  the  search,  such  persons  later  on  turn hostile. In  any of  these eventualities the evidence of the police  officers   who  conducted   the  search   cannot  be disbelieved solely  on the  ground that  no independent  and respectable witness  was examined to prove the search but if it is  found -  as in the present case - that no attempt was even made  by the  concerned police officer to join with him some persons  of the  locality who were admittedly available to witness  the recovery,  it would  affect  the  weight  of evidence   of   the   Police   Officer,   though   not   its admissibility. We  next find  from the  record that the arms and ammunitions  allegedly recovered  from the appellant and seized were  not packeted  and sealed.  In Amarjit Singh Vs. State of  Punjab 1995  Supp. (3)  SCC  217  this  Court  has observed that  non-sealing of  the revolver at the spot is a serious infirmity  because the possibility of tampering with the weapon  cannot be  ruled out. From the record we further find that  there is  no evidence  to indicate  with whom the revolver was  after its seizure by P.W.3 till it was sent to the Arms  Expert for  testing through constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities  we are of the view. that the appellant is entitled to the benefit of reasonable doubt.      We, therefore,  allow this  appeal and  set  aside  the conviction and  sentence recorded against the appellant. The appellant, who  is on  bail, is  discharged  from  his  bail bonds. Fine, if paid, be refunded to him.