SUKHPAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal is directed against the order of conviction of the appellant dated November 6, 1992 by the Designated Court, Rohtak at Jind, under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, hereinafter referred to as 'TADA' Act read with section 25 of the Arms Act and consequential order of sentence for a period of five years with a fine of Rs. 500/- in default further imprisonment for six months. The prosecution case in short is that on 2-4-1989, Shri Sumer Singh, Inspector along with the Police Officials and Ram Kishan and Subhash were present in the area of village Gurthali near Canal Bank in connection with investigation of a case (State v. Surinder under Section 25 of the Arms Act and Section 5 of TADA). At that time, the accused Sukhpal was apprehended by the said Police party. The said Sukhpal was carrying one rifle of .315 bore and he was also having three belts each containing 25 cartridges in his waist. A magazine of the rifle containing seven live cartridges of .315 bore was also with him. The accused was also holding one bag of rexin in which two packets each containing 10 cartridges of the said rifle were also recovered. In this way 109 live cartridges were recovered from the possession of the accused apart from the said rifle. The accused could not produce any permit or licence for keeping the said arm and ammunition. The accused was put under arrest and the rifle and the cartridges recovered from his possession were sealed in separate parcels with the seal of SSM and the same were handed over to PW 6 Subhash. The said rifle was got tested by an armourer. A challan under Section 25 of the Arms Act and also under Section 5 of the TADA Act was framed against the accused. PW 1. Sh. Banwari Lal, ASI, PW2 Surjit Singh, Armourer, PW 3 Shri Bram Sarup Ahmad, PW 4 Sumer Singh, Inspector, PW 5 Ram Kishan, PW 6 Subhash and PW 7 Birbhan Kanungo were examined by the prosecution in support of the prosecution case. PW 2 Surjit Singh armourer was examined for the purpose of establishing that the rifle found in possession of the accused was in a firing condition. The said armourer had deposed that he had examined the rifle and found that the said rifle was in firing condition. The prosecution case has been proved by the evidences of the said police personnel and also two civilian witnesses namely PW 5 Ram Kishan and PW 6 Subhash. The said two civilians have deposed that in connection with a decoity case they had been to the police chowki on the said date and they were asked to wait as they were given to understand that some clue about the dacoity was available. At about 2.00 a.m.in the midnight, while they were sleeping in the police chowki compound they were aroused and taken in a police vehicle and they witnessed the arrest of the accused along with the said rifle and the cartridges. The learned Designated Judge considering the said evidences has come to the finding that the case against the accused was established. He has accordingly convicted the accused under Section 5 of the TADA Act read with Section 25 of the Arms Act and has passed the aforesaid sentence of five years' imprisonment and a fine of Rs. 500/-

(2.) Mr. Malhotra learned counsel appearing for the appellant has contended before us that in the recent Constitution Bench judgment rendered in the case of Sanjay Dutt v. State through C.B.I., Bombay reported in 1994 (3) Scale 1004 , this Court has indicated that the presumption under Section 5 of TADA Act is a rebuttable presumption and the accused is entitled to rebut such presumption in a trial. Mr. Malholtra has submitted that unfortunately the said decision was not rendered at the time when the trial had taken place and the accused appellant was not aware that he had a right to rebut the presumption under Section 5 of the TADA Act. He has submitted that it was bounden duty of the Court to apprise the accused about such right of rebuttal so that he could lead evidence by way of rebuttal of the said statutory presumption. Mr. Malhotra has also submitted that in the instant case, although two civilians PW 5 and PW 6 have been examined by the prosecution to support the prosecution case that the accused was apprehended with rifle and cartridges, the testimony of the said two witnesses namely PW 5 and PW 6 is not worthy of credence and should not be accepted. Admittedly, they belonged to a different locality and according to their own statement they had come to the police chowki some tine about 7 to 8 p.m. for causing enquiry about a dacoity case. There was no reason for them to stay back in the police chowki right up to the midnight so that they could accompany the police party at the time of apprehending the accused. Mr. Malhorta has also submitted that while one of such witnesses had stated that both had slept in the courtyard, the other had stated that one of them slept inside a room. If such contradiction is considered along with the fact that the said two witnesses were not reasonably expected to stay back in the police station, their evidences could not have been accepted as realiable by the learned Designated Court. Mr. Malhotra has submitted that if the said evidences are not taken into consideration, then the prosecution case is to be accepted only on the basis of the depositions of police officials and in the facts and circumstances of the case, such testimony of the Police personnel without corroboration from a realiable independent witness should not be accepted and no conviction could be based for want of proper evidence. Mr. Malhotra has also submitted that the armourer was examined for the purpose of proving that the rifle alleged to have been found with the accused was in a serviceable condition but it is an admitted case that the said armourer had not fired the rifle and he could not say if the said rifle had at all been fired or not. He has, therefore, submitted that the conviction of the appellant lies in the realm of surmise and conjecture. Such conviction and sentence are, therefore, liable to be set aside by allowing the appeal.

(3.) Disputing the aforesaid contentions, the learned counsel for the State has submitted that in the said Constitution Bench decision in the case of Sanjay Dutt v. State, it has been clearly indicated that under Section 5 of the TADA Act the prosecution has to prove three ingredients namely the accused had possessed the arms and ammunition as specified in the said Section, such possession of arms etc. was unauthorised and the possession of such arms and ammunition was within a notified area as referred to in Section 5 of the TADA Act. The learned counsel has submitted that in the instant case, the accused was found in possession of a large quantity of cartridges and the said rifle without any authority under the law. He was also found to have possessed such arm and ammunition within a notified area under Section 5 of TADA Act. Accordingly, in view of the statutory presumption under the said Section 5, the accused was liable to be convicted under Section 5 of the TADA Act and no illegality has been committed in convicting the accused under Section 5 of the TADA Act. The learned counsel has also submitted that the specific charge under Section 5 of the Act was made against the accused. He, therefore, had every opportunity to give the evidence in rebuttal. He was also specifically told about the said charge under Section 5 of the Act at the time of his examination under Section 313 of Cr. P.C. But no statement by way of rebuttal has been made by the accused. Therefore, no illegality has been committed in convicting the accused by the learned Designated Court. As the accused had ample opportunity to lead evidence by way of rebuttal of the presumption under Section 5 of TADA Act and the learned Designated Court had not prevented him from adducing evidence in rebuttal, no question of suffering any unmerited prejudice arises in this case. He has also submitted that the rifle was examined by an armourer who with his expertise had found that the said rifle was in a firing condition. Accordingly, the Court was justified in accepting such deposition of the armourer. It was not at all necessary that firing condition of the rifle was required to be ascertained only by resorting to actual firing. The learned counsel for the State has further submitted that in the instant case, the minimum sentence that may be imposed under Section 5 of the Act has been passed by the learned Judge. Therefore, no interference is called for by this Court and the appeal deserves to be dismissed.