Jarnail Singh vs State of Punjab

M.L. Singhal, J.—In case FIR No. 6 of 7.1.2000, of PS Sadar Bhatinda, Additional Sessions Judge. Bhatinda convicted Jarnail Singh u/s 25 of the Arms Act and Section 5 of the Explosives Substances Act and sentenced him to undergo R1 for 3 years and to pay fine of Rs. 500/- or in default of payment of payment of fine to undergo further RI for one, month u/s 25 of the Arms Act and further to undergo RI for 5 years u/s 5 of the Explosives Substances Act vide order dated January 17, 2001 in Sessions Case No. 15 of 25.9.2000.

The prosecution case in brief is that on 7.1.2000, DSP Jaspreet Singh Sidhu joined Panch Gurmail Singh son of Bachan Singh resident of village Bir Behman. At that time, other police officials were also with him. Jarnail Singh was in custody with them in case FIR No. 8 dated 6.1.2000 u/s 25 Arms Act of PS Kotwali, Bhatinda. During interrogation, he disclosed that the statement made by him that he had kept arms and ammunition in Maharashtra was false. On further interrogation, near ITI Chowk, Bhatinda, Jarnail Singh made statement that he had kept 10 cartridges of AK 56 rifles, 5 Kgs. RDX, two hand grenades, two batteries, two detonator switches, four time pencils, three switches ABCD, Coredex wire, Bona Cordex Wire while, electric wire, one safety fuse, four pressure release switches, three snouters, four non- electronic detonators, three electronic detonators, one frequency receiver, one telescope further put into one big polythene bag which was further put into a bag of fertilizers in the earth near Jodhpur Romana minor bridge near the outlet of khal towards down stream on the bank of minor at the bridge of the canal in the vicinity of village Jodhpur Romana and that he alone was aware about the concealment of these arms and ammunition and that he could get the same recovered. His disclosure statement was reduced into writing which was signed by him and attested by the PWs. He then got recovered the aforesaid anus and ammunition from the said place of their concealment in pursuance of his disclosure statement in the presence of Inspector Bhupinder Sjngh, Inspector Jarnail Singh and Gurmail Singh Panch. Visual site plan was prepared at the spot with correct marginal notes.

District Magistrate, Bhatinda gave sanction for prosecuting him u/s 25 of the Arms Act and Section 5 of the Explosives Substance Act as envisaged by section 39 of the Arms Act and Section 7 of the Explosives Substances Act, 1908.

Arms and ammunition were sent to the Forensic Science Laboratory, Chandigarh. Vide report Ex. PF, Deputy Director, Toxicology, Forensic Science Laboratory, Chandigarh reported that the parcel No. 1 was found to contain black coloured material and parcel No. 2 was found to contain a hand grenade of ARGES make and parcel No. 3 was found to contain a hand grenade of AROES make. Parcel No. 1 was found to contain carbon and mobil oil. RDX was found present in the contents of parcel No. 1. In the black coloured material, 80% of RDX was found.

After investigation, accused was challaned. Accused was committed to the Court of Session by Additional Chief Judicial Magistrate, Bhatinda vide order dated 11.9.2000. Accused was charged u/s 25 of the Anns Act and section 5 of the Explosives Substances Act by the Additional Sessions Judge. Bhatinda vide order dated 5.10.2000.

At the conclusion of the trial accused was convicted and sentenced as indicated above by Additional sessions Judge, Bhatinda. Not satisfied with his conviction and sentence, he has come up in appeal to this court.

Learned counsel for the appellant submits that his conviction u/s 5 of the Explosives Substances Act is bad because for sending one for trial u/s 5 of the Explosives Substance Act the sanction of the Central Govt. was required. Without the sanction of the State Govt. prosecution u/s 5 of the Explosives Substances Act is void. In support of this submission, he draws my attention to Shingara Singh s/o Gujjar Singh v. The State of Punjab, AIR 1971 P&H 246 where it was held that according of section for prosecution u/s 5 of the Explosives Substances Act is the function of the Central Govt. but this function of the Central Govt. can be delegated to the State Govt. and if this function is delegated by the Central Govt. to the State Govt., that function becomes the function of the Central Govt. ltwasheldthatastatutor\\ function of the State Govt. becomes the function of the Governor and the business of the State Govt. under Article 166(3) of the Constitution such statutory business. It is. therefore, competent for the Governor to allocate such statutory function to the Ministers by making rules under Article 166(3). The State Govt. while according sanction u/s 7 of the Explosive Substances Act would no doubt be discharging the function of the Central Government and not of the State Government, but the performance of this function would be the business of the State Government, for the convenient transaction of which the Governor can make rules of business under Article 166(3). While making rules under Article 166(3) the Governor is not legislating in respect of the matters included in List I of the Seventh Schedule of the Constitution and is only regulating the manner in which the business of the State Government is to be performed.

It was submitted that as in this case sanction to prosecute u/s 5 of the Explosive Substances Act was given by the District Magistrate and not by the State Govt., the prosecution u/s 4/5 of the Explosive Substances Act is no sanction in the eye of law. In my opinion, the submission made by the learned counsel must prevail, as such, conviction recorded u/s 5 of the Explosive Substances Act has to be adjudged non est and is adjudged non est. Now the question that arises is with regard to the tenability of conviction recorded u/s 25 of the Arms Act. Accused was already in custody with DSP Jaspreet Singh Sidhu in case FIR No. 8 of 6.1.2000 u/s 25 of the Arms Act of PS Kotwali, Bhatinda. It was during the course of investigation of that case that according to the prosecution he came out with this disclosure statement. I do not think there is any ring of truth in this disclosure statement as this disclosure statement is supported by no other than Jaspreet Singh Sidhu, DSP, Bhatinda, PW1: Shri Bhupinder Singh, SHO, PS Sadar Bhalinda. PW2 and Shri Gurmail Singh. Panch who was an independent witness was not produced. It is true that police officials can well be believed even if they are not supported by independent witness. Prudence, however, requires that if there is an independent witness to the recovery, that independent witness should be produced to support the recovery. If independent witness is not produced to support the recovery that will impinge to a certain extent upon the truth of the prosecution case. Prosecution will have to satisfy the conscience of the court as to why the independent witness was not put forth to support the recovery. Accused had earlier made statement regarding the keeping of arms and ammunition by him in Maharashtra and they proposed to take him to Maharashtra and when he reached near ITI Chowk, Bhatinda, he blurted out that the statement made by him regarding the concealment of some explosive substances etc. in Maharashtra was not correct. It appears that no wonder this recovery was foisted upon him with a view to teach him a lesson for having tried to mislead the police earlier. Accused was in custody in case FIR No. 8 dated 6.1.2000 since be- fore. No wonder, he was feeling shaken so tar as his resistance is concerned when he allegedly made this disclosure statement. If Gurmail Singh had been produced and he had supported the prosecution case, it could have been viewed that thee was ring of truth about this recovery.

For the reasons given above, this appeal is allowed and the impugned judgment dated 17.1.2001 is set aside convicting and sentencing the appellant. Appellant is acquitted of the charge levelled against him. Fine, if paid, shall be refunded to him.

Appeal allowed.