MOHAN SINGHversusSTATE OF HARYANA.

A                                 MOHAN SINGH
                                       v.
                               STATE OF HARYANA.

                                   MARCH 8, 1995

B                     · [G.N. RAY AND FAIZAN UDDIN, JJ.J

             Te"orist and Disruptive Activities (Prevention) Ac4 1985/Anns Act,
     1959:

C          Section 5/Section 25--l'erson alleged to be found ·in possession of          r
     revolver without licence-Apprehended in a public place viz. waiting Hall of
     Railway Statiolt""'"Convicted and sentenced by Designated Court-Public Wit-    1
     nesses though available but avoided to be joined/associated in search and
     seizure of weapon-hosecution evidence highly <J,iscrepant creating serious
     doubt in prosecution case-l'ositive evidence .of good antecedents of ac-
D    cused-Not a previous convict and never indulged in any subversive ac-
     tivitie~ption under Section 5 TADA stands rebutted-Conviction
     and sentence set aside.

           The appellant was found to be in possession of a revolver without
E    licence at a railway stadon. He was charged with an offence under Secdon
     25 of the Arms Act read with Section· S of the Terrorist ~nd Disrupdve
     Actlvides Act, 198S (TADA). The Designated Court convicted and sen·
     tenced the appellant for the said offence.

     ~\   In appeal to this Court it was contended by the appellant that the            '
F · trial Court did not properly appreciate the evidence and had accepted the
     evidence of highly interested witnesses; that when the alleged incident
     occurred in a public place on a railway platform where number of inde·
     pendent witnesses were available, only one witness that too a chance
     witness was examined; that the prosecution story suffered from various
/G   infirmities and that the defence evidence was rejected for which there was
     no reasonable ground.

          Allowing the appeal, this Court

             HELD : 1.1. According to the prosecution the investigation had taken
H place in the waiting hall of a Railway Station. PW6 the Head Constable
                                          610
/~   )




                        MOHAN SINGH v. STATE[FAIZANUDDIN,J.]                       611

          clearly deposed in cross examination that 10 to 30 persons were present A
          in the waiting hall at that time. From the evidence of PW6 and PW 7 the
          Sub-Inspector, it is clear that the Railway BookiDg Office and the tea
          vendors stall were located near the place where the appellant was ap-
          prehended and searched. But no one from amongst the persons sitting in
          waiting hall or any one from the booking office or tea stall was joined as B
          witness by the investigation in the search and seizure of the country made
          pistol said to have been recovered from the possession of the appellant.
          From the evidence of PW6 and PW 7 it does not appear that they made
          any effort whatsoever to call any public witness or railway officials working
          in the booking office while taking the search of the appellant and recovery
          of pistol in that process. No explanation is forth coming for not joining C
          and independent witness. (614-C-E]

                 1.2. It is significant to note that the mobile sweet vendor, PWS stated
          that he knew the Sub-Inspector PW7 since he was posted in Police Station,
          while PW7 denied this fact probably to show he was stranger to him so as         D
          to give the colour of credence to his evidence. According to the statement
          of PW.5 it took about one and a half hours in completing the investigation
          while according to the Police Officials PW6 and PW7 It took about four
          hours In completing the proceedings at the spot, which is difficult to
          appreciate and comprehend. According to PWs6 and 7 when they had gone
          to the railway station for purpose of checking, the appellant who was            E
          sitting on a bench In waiting hall, got up and started walking towards
          outside which raised a suspicion and, therefore, he was apprehended near
          the tea stall. However, PW5 deposed that the appellant was apprehended
          while he was sitting in the waiting hall itself. (614-H, 615-A-C]
                                                                                           F
                 1.3 According to the case diary statement made by PWs 5 and 6 the
          pistol was recovered from the right pocket of the pant of the appellant. But
          during the course of their evidence before the trial court they deposed that
          the pistol was recovered from the right dub of the pant. But the totality of
          the evidence discussed and collective discrepancies noticed do not inspire
          confidence and create a serious doubt in the prosecution case. Therefore G
. .....   it is difficult to sustain the conviction of the appellant for the alleged
          recovery and seizure of the pistol from his possession. (615-DJ.

                2. There is no evidence to show that the appellant had ever acted in
          any manner indicating that he was indulging in terrorist or disruptive H
     612                   SUPREME COURT REPORTS                    (1995) 2 S.C.R;

A activity and the prosecution case rests entirely on the presumption that
     has to be drawn under Section 5 of TADA. But the positive evidence
     adduced by the appellant in defence goes to show that his antecedents are
     good enough and he bears a good moral· character. He is also not a
     previous convict and that he has never indulged in any subversive ac-
B    tivities. This evidence, probabilises the plea of defence and is good enough
     to rebut the presumption under Section 5 of TADA to the effect that the
     alleged possession of country made pistol was not meant for any terrorist
     or d~sruptive activity. (616-D-E]

           Sanjay Dutt v. State (1994] 5 SCC 410;-followed.
.c         3. The conviction of the appellant under Section S ofTADA read with
     Section 25 of Arms Act with sentences thereunder is set aside. (616-G]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
     341of1988.
D
          From the Judgment and Order dated 18.4.88 of the Additional Judge            \.
     Designated Court at Faridabad in T & DA. (P) Act, Case No. 3 of 1988.

           Rishi Kesh for the Appellant.

E .        Ms. Indu Malhotra for the Respondent.

           The Judgment of the Court was delivered by

           FAIZAN UDDlN, J.1. This appeal under Section 16 of the Terrorist
     & Disruptive Activities (Prevention) Act, 1985 has been directed against
F the judgment dated 15.4.1988 passed by the Additional Judge, Designated
     Court, Faridabad at Narnaul in T & DA (P) Act case No. 3/1988 whereby
     the appellant has been convicted. under Section 25 of the Arms Act read
     with Section 5 of Terrorist and Disruptive Activities Act, 1985 (hereinafter
     referred to as TADA) and sentenced to undergo rigorous imprisonment
G    forfi.ve years and to pay a fine of Rs. 1000, in default of payment of fine
     to undergo further Nigorous imprisonment for a period of six months.

            2. The prosecution case was that on 25.10.1987 when Sub- Inspector,
     Baljit Singh, PW7 alongwith other police officials was on round for check-
     ing Railway Station they scootted the appellant sitting in the waiting hall
H    of the railway station, Rewari and seeing Police p.;;arty started walking which
              MOHAN SINGH v. SfATE(FAIZANUDDIN,J.]                     613

raised suspicion. On personal search of the appellant one country made 12 A
bore pistol, Ext. Pl was recovered from the right side dub of his pant for
which the appellant had no permit or licence. The said pistol was seized
from the possession of the appellant. The Sub-Inspector Baljit Singh sent
a rukka, Ext. FA to the Police Station, G.R.P.S. Rewari, which was received
by ASI Virender Singh, PWl on the basis of which he recorded formal
F.l.R. Ext. FNl. The said pistol was examined by the Armourer Head
                                                                             B
Constable, Chotu Ram, PW 4 and on testing the said pistol he found it to
be in working order as per his report Ext. PE. After containing the sanction
Ext. FD accorded by the District Magistrate, Narnaul the appellant was
sent up for trial before the Designated Court. The appellant pleaded not
guilty and claimed trial. In his statement recorded under Section 313.Cr. C
P.C. the appellant denied the allegation of recovery of the alleged pistol
from his possession and stated that he was falsely implicated. The appellant
examined Lal Singh, DW 1, a member of the Village Panchayat of his
village and one Prithi, DW 2 as defence witnesses. The learned Trial Judge
accepted the prosecution evidence and, therefore, convicted and sentenced D
the appellant as noticed above.

      3. Learned conceal for the appellant submitted that there is iio
reliable evidence on record to support the conviction of the appellant yet
learned Trial Judge has convicted the appellant without proper apprecia-
tion of the prosecution evidence by accepting the evidence of highly          E
interested witnesses. He further submitted that though the incident is said
to have occurred at a public place on a railway platform, Rewari where a
number of independent public witnesses were available to be joined as
witnesses for the search and recovery yet none of them were called to stand
as witness and on the contrary one Hira Lal. PW 5 was examined as a           F
witness for search and seizure who is nothing P}.U. a chance witness.
Learned counsel for the appellant further submitted that the prosecution
evidence suffers from various infirmities which rendered. the prosecution
story as wholly doubtful on which no conviction can legitimately be based.
It was also contended that the learned Trial Judge conveniently ignored
the defence evidence adduced by the· appellant for which there is no          G
reasonable ground to reject the same.

     4. We have minutely scrutinised the prosecution evidence as well as
the defence evidence on record as ·this is the first and the last appeal
provided under the law and on such close scrutiny the evidence we find        H
    614                   SUPREME COURT REPORTS                  [1995) 2 S.C.R.

A substance and much force in the aforementioned submissions made by the
    learned coursed for the appellant.

              5. The prosecution case with regard to the search of the appellant
    and seizure of a country made pistol from the possession of the appellant
    rests on the evidence of Hira Lal, PW 5, Head Constable Desh Raj, PW 6
B   and Sub-Inspector, Baljit Singh, PW 7. The rest of the prosecution wit-
    nesses are formal in nature. PW 6 and PW 7 as said above are police
                                                                                    r
    officials being Head Constable and Sub-Inspector of Police respectively.
    Only Hira Lal, PW 5 is said to be an independent witness. According to
    the prosecution the investigation had taken place in the waiting hall of
C   Rewari Railway Station, Head Constable,"Desh Raj, PW 6 clearly deposed
    in cross examination that 10 to 20 persons were present in the waiting hall
    at that time. From the evidence of Desh Raj, PW 6 and Baljit Singh, Ex 7
    j.t;,.is clear that the Railway Booking Office and tea vendors stall were
    l~~ted near the place were the appellant was apprehended and searched.
    But no one from amongst the persons sitting in waiting hall or any one
D   from the booking office or tea stall was joined as witness by the investiga-
    tion in the search and seizure of the country made pistol said to have been '
    recovered from the possession of the appellant. From the evidence of PW
    6 and PW 7 it does not appear that they made any effort whatsoever to
    call any public witness or railway officials working in the booking office
E   while taking the search of the appellant and recovery of pistol in that
    process. No explanation is forth coming for not joining and independent
    witness. Baljit Singh, PW 7, however, preferred to pick up Hira Lal, PW 5
    who is nothing but a mobile sweet vendor. According to the prosecution
    Hira Lal happened to be there when the appellant was apprehended at
F   that particular time when search of his person was made and the country
    made pistol is said to have been recovered. In these facts and circumstan-
    ces when the police officials deliberately avoided to join any public witness
    or railway officials though available at the time when the appellant was
    apprehended the evidence of Hira Lal who is nothing but a chance witness
    and the evidence of police officials PW 6 and PW 7 has to be closely
G   scrutinised with certain amount of care and caution.

          6. It is significant to note that the mobile sweet vendor, PW 5 stated
    that he know the Sub-Inspector Baljit Singh since he was posted in Police
    Station. G.R.P. Rewari while Baljit Singh, PW 7 denied this fact probably
H   to show· he was stranger to him so as to give the colour of credence to his
              MOHAN SINGH v. STATE(FAIZANUDDIN,J.)                      615

evidence. According to the statement of Hira Lal, PW 5 it took about one A
and a half hour in completing the investigation while according to Head
Constable, Desh Raj, PW 6 and Sub-Inspector, Baljit Singh, PW 7 it took
about four hours in completing the proceedings at the spot. It is difficult
to appreciate and the statement of Desh Raj, PW 6 and Baljit Singh, PW
7 as to how it took about four hours in completing the investigation. Further B
the statement of police officials PWs6 and 7 goes to show that when they
had gone to the railway station, Rewari for purpose of checking, the
appellant who was sitting on a bench in waiting hall, got up and started
walking towards outside which raised a suspicion and, therefore, he was
apprehended near the tea-stall while the mobile sweet vendor Hira Lal,
PW 5 deposed that the appellant was apprehended while he was sitting in C
the waiting hall himself. Not only this but according to the case diary
statement made by Hira Lal. PW 5 and Head. Constable, Desh Raj, PW 6,
the pistol was recovered from the right pocket of the pant of the appellant.
But during the course of their evidence before the trial Court they deposed
that the pistol was recovered from the right dub of the pant. This dis- D
crepancy though of a minor nature but the totality of the evidence dis·
cussed above and collective discrepancies noticed above do not inspire
confidence and creates a serious doubt on the prosecution case. In view of
such a dis·crepant evidence we find it difficult to sustain the conviction of
the appellant for the alleged recovery and seizure of the pistol from his
possession.                                                                   E

       7. Having regard to the evidence addused by the appellant in
defence, further question arises.whether provisions of Section 5 of TADA
are attracted to the facts of the present case or not. In the case of Sanjay
Dutt v. State, [1994 5 SCC 410), a Constitution Bench of this Court held        F
that in order to attract Section 5 of TADA the accused· must be in
conscious 'possession, unauthorisedly in a notified area' of any of the
specified arms or ammunition, and when these ingredients are found to
exist the statutory presumption arise that the arms and ammunition, were
meant to be used for a terrorist or disruptive act and on that basis alone
conviction under Section 5 of TADA can be made and that such a                  G
presumption is mecuttacle by the accused who has a right to prove non-
existence of any fact essential to constitute an ingredient of section 6 such
as the possession being not for any terrorist· or disruptive activity. It has
also been laid down that the burden of proof on the accused is of greater
probability and not so heavy as it lies on the prosecution. In the present      H
    616                  SUPREME COURT REPORTS                   (1995) 2 S.C.R.

A case the area where the appellant was apprehended is no doubt a notified
    area and if the seizure is accepted, the possession of the coilntry made
    pistol without permit or licence would amount to unauthorised possession
    of an arm and, therefore, a presumption will arise that such possession of
    arm was meant to be used for terrorist or disruptive act unless rebutted
B   and proved that such possession was not for any terrorist or disruptive
    activity. In the present case the appellant has adduced evidence by examin-
    ing two witnesses in defence. DWl is a inember of Panchayat of village
    from which the appellant himself hails, who deposed that the appellant is
    known to him who has a good moral character and is not a previous
    convict. He also stated that on the day of the alleged occurrence the
C   appellant was going to one Prithi of village Chapper. OW 2 a resident of
    village Chapper also deposed that the appellant is known to him for the
    last 20 years and further stated that the father of the appellant had asked
    him to manage some job for the appellant and that on the day of the alleged
    occurrence the aJ>pellant was coming to him when he was involved in the
D   present case. This evidence adduced in·defence stands unshaken. There is
    no evidence to show that the appellant had ever acted in any manner
    indicating that he was· indulging in terrorist or disruptive activity and the
    prosecution case rests entirely on the presumption that has to be drawn
    under Section 5 of TADA. But the positive evidence adduced by the
    appellant in defence goes to show that his· antecedents are good enough
E   and he bears a good moral character. He is also not a previous convict and
    that he has never indulged in any subversive activities. This evidence, in
    our opinion, probabilities the plea of defence and is good enough to ·rebut
    the presumption under Section 5, TADA to the effect that the alleged
    possession of country made pistol was not meant for any terrorist or
F   disruptive activity. But since we find that the prosecution evidence does
    not inspire confidence with regard to the recovery and seizure of alleged
    pistol from the possession of the appellant, the application of Section 5
    TADA and conviction thereunder does not arise.

         . 8. For the reasons stated above the appeal is hereby allowed. The
G   conviction of the appellant under Section 5, TADA read with Section 25
    of Arms Act with sentences thereunder· is set aside. The appellant is on
    bail. His bail-bonds are cancelled.

    G.N.                                                        Appeal allowed.