SUKHDEV SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal is directed against the judgment of the Designated Court, ferozepur at Bhatinda convicting the appellant under Section 5 of TADA and sentencing him to imprisonment for 5 years and a fine of Rs 1000, in default further to undergo RI for 6 months, on the allegation that he was found in possession of arms and ammunition specified in columns 2 and 3 Category 1 of Schedule I to the Arms Rule inasmuch as he gave recovery of one AK-47 rifle and several cartridges from his house. The prosecution case in a nutshell is that on 6-6-1992 at 9.30 a. m. Village Lehra was cordoned off on the secret information that two terrorists had concealed themselves and were about to escape. While the officers concerned cordoned the entire village, one of the suspects took poison and committed suicide but the present appellant was caught red-handed. This appellant then took the investigating officer along with other police people to his own house, opened the same with his key and gave recovery of one AK-47 assault rifle in a box and several cartridges. According to his statement the said rifle had been given by him, (sic) the other person who had committed suicide. The statement of the appellant was reduced to writing Ex. PA and the recovery of the rifle as well as the cartridges were recorded in memo of recovery (Ex. PB). The learned designated Judge considered the relevant materials and came to the conclusion that the prosecution case has been proved beyond reasonable doubt so far as the possession of the UN authorised arms is concerned and accordingly convicted the appellant under Section 5 of TADA. The place from where the alleged recovery was made, is a notified area, is not disputed before us. The learned counsel for the appellant, however, contended that the rifle as well as the cartridges were not sealed at the time of seizure and therefore the prosecution has not been able to establish whether what was seized on the date of seizure is the same which is now being produced in court to hold the appellant guilty of the offence. The learned counsel also further submitted that the rifle in question had not been sent to any ballistic expert for his opinion as to whether it was in a workable condition and this infirmity on the part of the prosecution entitles the accused to get the benefit of doubt. Mr Dutta appearing for the State, on the other hand, contended that in those days the entire State of Punjab was in turmoil so much so no independent witness was available in spite of best efforts and under the circumstances there is no reason to disbelieve the prosecution witnesses, who are police officers, and if they are believed the seizure must be held to be established and further it must be held that the appellant was in possession of the alleged AK-47 rifle. To appreciate the correctness of the rival submission we have been taken through the evidence of the witness PW 4, who was the sho, and he had categorically admitted that on recovery of the AK-47 rifle and arms from the house of the accused he had not put any seal on the same. He has also further stated that he did not remember whether the rifle had been sent to any ballistic expert for his opinion though he himself had examined the weapon in question and was of the opinion that it was in perfect working condition. Even if we accept the statement of the SHO, pw 4 to be correct, but it would be highly unsafe to convict the appellant on the same, particularly when the seizing authority has not taken the minimum precaution of sealing the weapon of offence, on its being seized. There is not even an iota of material produced by the prosecution to establish that what was seized on the date of occurrence is the same which is being produced in the case for establishing the charge under Section 5 of TADA. In the aforesaid premises, we are persuaded to accept the submission of learned counsel for the appellant that the prosecution has not been able to establish the possession of the recovery of the AK-47 rifle and cartridges with the appellant, so as to bring home the charge under Section 5 of TADA. We, accordingly, set aside the conviction and sentence passed. The appellant be set at liberty forthwith, unless required in any other case.

(2.) The appeal is allowed accordingly.