Rakesh Kumar alias Sachdeva alias Deva vs State (Delhi Admn.)

M.K. Mukherjee, J.—The appellant was glanced on trial before the Designated Court, New Delhi to answer charges u/s 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA' for short) and 25 of the Arms Act, 1959. On conclusion of trial the learned Court recorded an order of conviction against the appellant in respect of both the charges. For the conviction u/s 5 of TADA the appellant was sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for 6 months more but no separate sentence was passed for the other convictions. Hence this appeal.

Briefly stated, the prosecution case is that in the evening of April 23, 1991 a police party. While on patrol duty in and around Palam Village, found the appellant standing near the bus stand with a bag in his possession. As his movements accused suspicion they apprehended him and searched the bag, which was found to contain 8 country made pistols and 31 live cartridges. As the appellant could not give any satisfaction explanation for possession of those arms and ammunitions, they were sited under a recovery memo and then packaged and sealed. A First Information Report was thereafter lodged against the appellant at Dabri Police Station and S.I. Sube Singh took up investigation of the case. In course of investigation he forwarded the seized arms and ammunitions to the Central Forensic Science Laboratory (CFSL) for examination. On completion of investigation and receipt of sanction from the Deputy Commissioner of Police, New Delhi to prosecute the appellant u/s 25 of the Arms Act he submitted charge sheet against the appellant.

The appellant pleaded not guilty to the charge levelled against him and his contention was that he was falsely implicated in the case at the instance of S.I. Sube Singh.

To prove the apprehension of the appellant and recovery of the arms and ammunitions from his possession the prosecution relied upon the testimonies of Const. Jagpal Singh (P.W. 1) and Head Const. Ramesh Kumar (P.W. 2). Both of them staled that they were members of the police party that was on patrol duty on the dte in question. They detailed the manner in which the appellant was apprehended at the bus stand with a bag in his possession and spoke about the recovery of the country made pistols and the cartridges from that bag. They also testified that a recovery memo was prepared and signed by them. They next spoke about the packaging and scaling of those arms and ammunitions.

Const. Bhim Singh (P.W. 3) testified that on May 3, 1991 he had taken the sealed parcels from the Mlkhana of Dabri Police Station to CFSL and delivered them in tact. The report of CFSL (Ext.A) shows that all the pistols were in working order and the cartridges were live. Const. Bhim Singh (P.W. 4) proved the sanction accorded by Deputy Commissioner of Police u/s 39 of the Arms Act which was marked by P.W.4/A. Head Const. Khushi Ram (P.W. 5) who was the Duty Officer of Dabri Police Station on April 23,1991 proved the FIR Ex. P.W.5/A. Const. Jasbir Singh (P.W. 6) proved that the arms and ammunitions seized were deposited in the Malkhana of the police station and were forwarded to the CFSL from there through Const. Bhim Singh (P.W. 3).

Having carefully gone through the evidence of P.W.1 and P.W.2, two of the members of the raiding party, we do not find any reason to disbelieve them, more particularly when nothing could be elicited in cross examination to discredit them. On the contrary, their evidence is consistent and corroborates each other.

The learned Counsel appearing for the appellant first contended that non-examination of S.I. Sube Singh who investigated into the case, raised a great suspicion about the truth and bone fides of the prosecution story. We do not find any substance in this contention. It appears that in spite of best efforts the prosecution could not produce him and therefore no adverse presumption can be drawn against the prosecution for his non-examination. That apart, nothing was elicited in cross examination of any of the prosecution witnesses wherefrom it could be said that the Investigating Officer's production was essentially required to give an opportunity to the defence to cross examine him with reference to statements recorded by him u/s 161 Cr. P.C. or any steps taken by him during investigation. His non-examination, therefore, did not in any way affect the prosecution case nor prejudice the appellant in his defence.

The only other contention raised by the appellant was that no public witness was examined though the alleged recovery took place at a bus stand in the evening. It appears from the evidence of both P.Ws. 1 and 2 that in spite o requests made one of the shopkeepers and the people present there was willing to join the search party. As we do not find any reason to disbelieve the evidence of P.Ws. 1 and 2 that their sincere attempt to secure public witness failed, no adverse inference fro such non-examination can, therefore, be drawn.

On the conclusions as above we dismiss the appeal.