Abdul Khan vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 5.5.1995 passed by the Sessions Judge, Faridkot who convicted the appellant Abdul Khan under Section 25 of the Arms Act and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 100/. In default of payment of fine, he was directed to undergo rigorous imprisonment for a period of one month.

The brief facts of the case are that the police party headed by ASI Jagjit Singh, on 18.5.1993 was going for patrolling from the side of village Roorianwali to village Balamgarh and when the police party reached near the bridge of the drain in the area of village Roorianwali the appellant was found coming from the side of Balamgarh and on seeing the police party he tried to retreat. On the basis of suspicion he was apprehended and searched. Firstly opium weighing 10 kilograms was recovered from his possession. Thereafter a country made revolver of .38 bore along with three live cartridges were recovered from his possession. The appellant could not produce any licence or permit for possession of opium and revolver, as a result of which two cases i.e. one under section 18 of the NDPS Act and other under section 25 of the Arms Act were registered against the appellant. The thanedar completed the other formalities of the investigation. After obtaining sanction of the District Magistrate, challan against the appellant under section 25 of the Arms Act was submitted in the court of Area Magistrate. Since FIR No. 53 was connected with FIR No. 52 therefore, accused was sent to the court of Sessions to face trial.

Vide orders dated 30.11.1997 the appellant was chargesheeted under Section 25 of the Arms Act on the allegations that on 18.5.1993, in the area of village Roorianwali he kept in his possession one country made pistol of .38 bore along with three live cartridges of the same bore without any licence or permit and thereby committed an offence under section 25 of the Arms Act.

In order to prove the charge, prosecution examined Waryam Singh PW 1, Jagjit Singh Investigating Officer PW 2, Mohar Singh, Reader to the District Magistrate who proved sanction Ex. PC/2. Constable Jaswant Singh appeared as PW 4 who certified that the country made pistol was in working order and he gave his report Ex. PD/1. Shri Gurdarshan Singh (PW5) simply proved final report under Section 173 Cr.P.C.

On the closure of the prosecution evidence, statement of the accused under section 313 Cr.P.C was recorded. All the incriminating circumstances appearing in the prosecution evidence were put to him. The accused denied all those circumstances and he took the following defence :

"I was brought from village Mehan Badhar where altercation took place due to purchase/sale of cattles with the persons of that village and I was brought by the police in the presence of Fateh Singh and Jagdev Singh etc. After my illegal detention I was falsely implicated in this case. During that period, I had sent letters to Virsa Singh etc. After my illegal detention I was falsely implicated in this case. During that period, I had sent letters to Virsa Singh Sarpanch of village Wadhai, who came and met the police but in vain."

When called upon to enter his defence, Jagdev Singh, Virsa Singh and Tirath Ram appeared DW1 to DW3 respectively to depose about the innocence of the appellant.

The learned Trial Court for the reasons given in the impugned judgment and order convicted and sentenced the appellant in the manner stated above and feeling aggrieved against the same, the appellant has filed the present appeal.

I have heard Shri R.S. Ghai, Senior Advocate assisted by Mr. Bipan Gahi, Advocate on behalf of the appellant and Shri S.S. Randhawa, DAG Punjab appearing on behalf of the State and with their assistance have gone through the record of this case.

The solitary argument which was raised by the learned counsel for the appellant is that the Investigating Officer has not associated any independent witness so as to infuse confidence in the mind of the court about the genuineness of the recovery especially when the Investigating Officer had taken efforts to depute a constable to bring scale and weights in order to weigh the opium which was allegedly recovered from the possession of the appellant at that time. Learned counsel submitted that in the present case the alleged offence has been committed in the same transaction and vide separate judgment of the even date passed by the High Court appellant Abdul Khan has been acquitted in the narcotic case and therefore, the same set of evidence cannot be believed in the present case. On the contrary, Mr. Randhawa submitted that conviction can be based on the testimony of the official witnesses and simply because the appellant has been acquitted in the narcotic case on technical ground due to noncompliance of Sections 50 and other directory provisions of NDPS Act besides that link evidence was missing in that case but in this case, it is the consistent case of the prosecution that from the possession of the appellant a country made pistol of .38 bore along with three live cartridges of the same bore were recovered from the appellant and he could not produce any permit or licence for the same. Mr. Randhawa also submitted that the District Magistrate also granted sanction and cognizance has rightly been taken by the court.

I have considered the submissions raised by the learned counsel for the parties and am of the opinion that this appeal is devoid of any merit. Simply because the appellant has been acquitted in the opium case, is no ground to jump to the conclusion that the recovery of one country made pistol and three live cartridges is also false. The dictum of the judgment under the NDPS Act cannot be imported on this file as the High Court had acquitted the appellant on technical grounds such as noncompliance of Sections 50, 52 and 57 besides that link evidence in that case was badly missing. So far as the present case is concerned, I have scrutinised the statements of both the witnesses with care and caution. Each witness is corroborating the other. Their testimony cannot be disbelieved simply on the ground that they are police officials. It is true that the Investigating Officer in order to weigh the opium deputed one constable to bring scale and weights but if the said constable had not bought any person from the nearby village in order to attest the recovery of the country made pistol and cartridges, it is not fatal to the prosecution. Even conviction can be based on the testimony of the police officials. As per observations made by the Hon''ble Court, the only check before accepting the statement of police officials is that the law courts can apply the rule of care and caution. I have gone through the statements of both these witnesses including the crossexamination part and come to the conclusion that the appellant was in possession of a country made pistol besides three cartridges and at the relevant time he could not produce any licence or permit for the possession of the pistol and cartridges.

Resultantly, I maintain the conviction and sentence which has been awarded to the appellant by the Trial Court. Thus the appeal of the appellant under the Arms Act is hereby dismissed. Let intimation about dismissal of this appeals be sent to Superintendent, Central Jail, Ferozepur with a direction to ensure that if the appellant had served sentence of this case, he shall be released. Any detention of the appellant in the connected case under the Narcotic Act shall also be counted as detention in the present case also.

Appeals dismissed.