Full Judgment Text
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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.
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