BRIJ PAL Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) This appeal has been preferred by the appellant under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act (hereinafter referred to as the TADA Act). By the judgment dated 5-8-94, the learned Judge, Designated Court No.11, Delhi has convicted the appellant under Section 5 of the TADA Act and sentenced him to suffer rigorous imprisonment for five years together with a fine of Rs.500/-, in default, to undergo further rigorous imprisonment for 15 days. According to the prosecution case, the police received a secret information that one person of bad character who had been involved in some murder case in U.P. was present with some unauthorised weapons at the Libaspur bus stand, Dhaula Kuan. The police thereafter organised a raiding party. They approached some public persons to become witness to search and seizure, but as no one agreed to become witness for search and seizure of such person, the police thereafter organised a raid with the help of the police officials. At about 1.30 P.M. on the day of occurrence at the Libaspur bus stand, the appellant was found and on search of his person a country made pistol loaded with one live catridge and two other live catridges were recovered by the police. After taking measurement of the said pistol and one of the cartridges, a sketch map was prepared and the said weapon and cartridges were sealed and sent by the police to Police Mal Khana. After obtaining necessary sanction from the authorities concerned the said case under Section 5 of the TADA Act was initiated against the appellant.

(2.) The prosecution in this case has examined Head Constable Sathir Singh (PW-1), Jagdish Chander, Sub-Inspector (PW-2), ASI Mahipal Singh (PW-3), ASI Santokh Singh (PW-4), Head Constable Baljit Singh (PW-5) and Constable Ramesh Kumar (PW-6). It may be stated that PW-5 was the in charge of the Police Mal Khana where the seized pistol and the cartridges were kept in sealed cover and he has deposed to the effect that he received the said articles in a sealed parcel. They were also kept in a sealed cover until they were sent to the ballistic expert at BTP Unit, Old Police Line. The armourer has also deposed that he had taken training about the arms and he has also deposed that as a matter of fact, he fired one of the seized cartridges from the seized pistol and found the pistol in working condition. As the prosecution case was found to have been established beyond doubt by the deposition of the said witnesses, the learned Designated Court convicted the appellant under Section 5 of the TADA Act and passed the aforesaid sentence.

(3.) Mr. Kirpal Singh, learned counsel appearing for the appellant as amicus curiae submits that according to the prosecution case the appellant was arrested from the Libaspur bus stand, Dhaula Kuan. The police could have procured independent witnesses to establish that the appellant was in fact apprehended by the police from the said place as alleged in the prosecution case and from his possession the said pistol and the cartridges were recovered. But in the instant case, only the police personnel were examined. In the absence of any independent disinterested public witness, solely on the basis of the depositions of the police personnel, the order of conviction against the appellant should not have been passed. Learned counsel has also submitted that PW-2 examined as armourer should not be held to be an expert and if the said pistol had not been tested by a proper expert, benefit of doubt should be given to the appellant. Learned counsel has further submitted that it is the case of the appellant that he had been falsely implicated in the case because he had not been arreated at the Libaspur bus stand. He was apprehended by the police at Rana Pratap Bag along with one Luxman, but unfortunately such case had not been properly appreciated by the learned Designated Court. He has submitted that police had released Luxman so that he could not be examined in support of his case.