SUKHPALversusSTATE OF HARYANA

                                  \ SUKHPAL                                        A
                                         v.
                             STATE OF HARYANA

                                OCTOBER 5, 1994

                    [G.N. RAY AND FAIZAN UDDIN, JJ.]                               B

          Terrorist and Disruptive Activities (Prevention) Act, 1987: Section 5.

           Accused-Possession of unlicensed arms and ammunitions-Ap-
    prehension by a police party from a notified area-Failure of accused to rebut C
    statutory presumption under Section 5--'Failure to explain purpose of posses-
    sion of Arms-Apan from evidence of police personnel case supported by
    civilian witnesses from other localitrArmourer deposing that Rifle was in
    firing condition-Conviction under Section 5 held justified-Held as a Rule
    ofprudence corroboration by a reliable witness is desirable but cannot always
    be insisted as a matter of cours~Test firing by Armourer is not necessary. D

           The appellant was prosecuted under Section 5 of the Terrorist and
     Disruptive Activities (Prevention) Act, 1987 read with Section 25 of the
    Arms Act, 1959. The prosecution case was that on 2.4.89 a police party had
    gone to a village in a notified area in connection with investigation of an    E
    offence. There, they apprehended the accused who was holdings an un-
    licensed riOe with 109 live cartrideges. The armourer has deposed that the
    riOe was in firing condition. Besides the t~stimony of the police personnel
    the prosecution case was sought to be proved by the evidence of two civilian
    witnesses who deposed that they had gone to the police chowki in connec-
    ti~u with a dacoity case and during mid night, they were taken in a police     F
    vehicle and they witnessed the arrest of the accused along with the said
    rine and the catridges. On the basis of the aforesaid evidence the Desig-
    nated Judge convicted the accused and sentenced him to imprisonment for
    live years and a line of Rs. 500.

t         In appeal to this court it was contended on behalf of the appellant
                                                                                   G
    that (i) his conviction was not maintainable because in view of the judg-
    ment of this Court in Sanjay Dutt v. The State through CBI, Bombay, (1994]
    3 Scale 1004 the Court should have given him opportunity to lead evidence
    for rebuttal of statutory presumption under Section 5; (ii) the testimony
    of the two civilian witnesses who belonged to a different locality was not     H
                                        271
    272                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A reliable because there was no reason for them to stay back in the police
    chowki right upto the mid night so that they could accompany the police
    party at the time of apprehending the accused and that they also made a
    contradictory statement; (iii) if their evidence is excluded then the prosecu-
    tion case which is based only on the basis of testimony of police personnel
    should not be accepted without corroboration from reliable and inde-
B
    pendent witness; and (iv) no test firing was made by the Armourer to
    establish serviceable condition of the rifle.

          Dismissing the appeals, this Court

C         HELD : 1. All the three essential ingredients for conviction under
    section 5 have been fulfilled in the instant case : (i) the accused had been
    apprehended with a rifle and 109 live cartridges of such rifle; (ii) he had
    no licence or permit to possess the said rifle and the cartridges at the
    relevant time; and (iii) the TADA Act was applicable in the area where the
    accused was apprehended. [276-H-F-G]
D
          2. In the facts and circumstances of the case, the accused had
    sufficient opportunity to explain the purpose of possession of the said arm
    and ammunition and to rebut the statutory presumption under Section 5
    of the TADA Act, but he had failed and neglected to give any explanation
    or evidence which may be even remotely construed as an evidence by way
E
    of rebuttal. [277-E]

           3. There is no valid reason to discard the evidence adduced by
    civilian witnesses. Apart from that, the police personnel has also deposed
    and such deposition stand fully corroborated by the evidences of civilian
F   witnessed and by the recovery of the rifle and cartridges. Though as a rule
    of prudence, corroboration preferably by a reliable witness is desirable, yet
    in all cases, such corroboration cannot be insisted as a matter of course
    because it may not be possible in all cases to get corroboration from an
    independent witness. [277-A·B]
G         4. In the instant case firing capability of the said rifle has been found
    by an expert namely an armourer who has a special training in the subject.
    It is not absolutely, necessary to make a test firing for the purpose of
    ascertaining whether or not a rifle is capable of firing. Therefore, it cannot
    be said that the firing capability of the said rifle has not been established
H   in the instant case. [277-C]
                 SUKHPAL v. STATEOFHARYANA                            273

      Sanjay Dutt v. The State through CBI, Bombay, (1994) 3 Scale 1004, A
referred to.

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
732 of 1992.

     From the Judgment and Order dated 6.11.92 of the Designated Court      B
in Rohtak in Sessions Case No. 7. of 1992.

                                  With

      Criminal Appeal No. 733 of 1992.
                                                                            c
     From the Judgment and Order dated 6.11.92 of the Designated Court
in Rohtak in S.Case No. 8 of 1992.

      Prem Malhotra for the Appellant.

      Ms. Shirin Jain for the Respondent.                                   D

      The following Order of the Court was delivered :

       This appeal is directed against the order of conviction of the appel-
lant dated November 6, 1992 by the Designated Court, Rohtak at Jind,
under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, E
hereinafter referred to as 'TADA' Act read with Section 25 of the Arms
Act and consequential order of sentence for a period of five years with a ·
fine of Rs. 500 in default further imprisonment for six months. The
prosecution case in short is that on 2.4. 1989, Shri Sumer Singh, Inspector
along with the Police Officials and Ram Kishan and Subhash were present F
in the area of village Gurthali near Canal Bank in connection with inves-
tigation of a case (State v. Surinder under Section 25 of the Arms and
Section 5 of TADA). At that t_ime, the accused Sukhpal was apprehended
by the said Police party. The said Sukhpal was carrying one rifle of .315
bore and he was also having three belts each containing 25 cartridges in G
his waist. A magazine of the rifle containing seven live cartridges of .315
bore was also with him. The accused was also holding one bag of rexin in
which two packets each containing 10 cartridges of the said rifle were also
recovered. In this way 109 live cartridges were recovered from the posses-
sion of the accused apart from the said rifle. The accused could not
produce any permit or licence for keeping the said arm and amunition. The   H
    274                   SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.

A accused was put under arrest and the rifle and the cartridges recovered
    from his possession were sealed in separate parcels with the seal of SSM
    and the same were handed over to PW 6 Subhash. The said rifle was got
    tested by an armourer. A challan under Section 25 of the Arms Act and
    also under Section 5 of the TADA Act was framed against the accused.
    PW 1 Sh. Banwari Lal, AS!, PW 2 Surjit Singh, Armourer, PW 3 Shri Bram
B
    Sarup Ahmad, PW 4 Sumer Singh, Inspector, PW 5 Ram Kishan, PW 6
    Subhash and PW 7 Birbhan Kanungo were examined by the prosecution in
    support of the prosei:ution case. PW 2 Surjit Singh armourer was examined
    for the purpose of establishing that the rifle found in possession of the
    accused was in a firing condition. The said armourer had deposed that he
C   had examined the rifle and found that the said rifle was in firing condition.
    The prosecution case has been proved by the evidences of the said police
    personnel and also two civilian witnesses namely PW 5 Ram Kishan and
    PW 6 Subhash. The said two civilians have deposed that in connection with
    a dacoity case they had been to the police chowki on the said date and
D   they were asked to wait as they were given to understand that some clue
    about the dacoity was available. At about 2.00 a.m. in the mid night, while
    they were sleeping in the police chowki compound they were aroused and
    taken in a police vehicle and they witnessed the arrest of the accused along
    with the said rifle and the cartridges. The learned Desgnated Judge con-
    sidering the said evidences has. come to the finding that the case against
E   the accused was established. He has accordingly convicted the accused
    under Section 5 of the TADA Act read with Section 25 of the Arms Act
    and has passed the aforesaid sentence of five years' imprisonment and a
    fine of Rs. 500.

F          Mr. Malhotra learned counsel appearing for the appellant has con-
    tended before us that in the recent Constitution Bench judgment rendered
    in the case of Sa11jay Dutt v. The State through C.B.I. Bombay reported in
    (1994) 3 Scale 1004, this Court has indicated that the presumption under
    Section 5 of TADA Act is a rebutable presumption and the accused is
    entitled to rebut such presumption in a trial. Mr. Malhotra has submitted
G   that unfortunately the said decision was not rendered at the time when the
    trial had taken place and the accused appellant was not aware that he had
    a right to rebut the presumption under Section 5 of the TADA Act. He
    has submitted that it was bounden duty of the Court to apprise the accused
    about such right of rebuttal so that he could lead evidence by way of
H   rebuttal of the said statutory presumption. Mr. Malhotra has also submitted
                  SUKHPAL v. STATEOFHARYANA                            275
that in the instant case, although two civilians PW 5 and PW 6 have been A
examined by the prosecution to support the prosecution case that the
accused was apprehended with rifle and cartridges, the testimony of the
said two witnesses namely PW 5 and PW 6 is not worthy of credence and
should not accepted. Admittedly, they belonged to a different locality and
according to their own statement they had come to the police chowki some B
time about 7 to 8 p.m. for causing enquiry about a dacoity case. There was
no reason for them to stay back in the police chowki right upto the mid
night so that they could accompany the police party at the time of ap-
prehending the accused. Mr. Malhotra has also submitted that while one
of such witnesses had stated that both had slept in the courtyard, the other
had stated that one of them slept inside a room. If such contradiction is C
considered along with the fact that the said two witnesses were not
reasonably expected to stay back in the police station, their evidences could
not have been accepted as reliable by the learned Designated Court. Mr.
Malhotra has submitted that if the said evidences are not taken into
consideration, then the prosecution case is to be accepted only on the basis D
of the depositions of police officials and in the facts and circumstances of
the case, such testimony of the Police personnel without corroboration
from a reliable independent witness should not be accpeted and no con-
viction could be based for want of proper evidence. Mr. Malhotra has also
submitted that the armourer was examined for the purpose of proving that
the rifle alleged to have been found with the accused was in a servicable E
condition but it is an admitted case that the said armourer had not fired
the rifle and he could not say if the said rifle had at all been fired or not.
He has, therefore, submitted that the conviction of the appellant lies in the
realm of surmise and conjecture. Such conviction and sentence are, there-
fore, liable to be set aside by allowing the appeal."                          F

      Disputing the aforesaid contentions, the learned counsel for the State
has submitted that in the said Constitution Bench decision in the case of
Sanjay Dutt v. State, it has been clearly indicated that under Section 5 of
the TADA Act the prosecution has to prove three ingredients namely the
accused had possessed the arms and ammunition as specified in the said G
Section, such possession of arms etc. was unauthorised and the possession
of such arms and ammunition was within a notified area as referred to in
Section 5 of the TADA Act. The learned counsel has submitted that in the
instant case, the accused was found in possession of a large quantity of
cartridges and the said rifle without any authority under the law. He was H
    276                   SUPREME COURT REPORTS (1994] SUPP. 4S.C.R.

A also found to have possessed such arm and ammunition within a notified
    area under Section 5 of T'A.DA Act. Accordingly, in view of the statutory
    presemption under the said Section 5, the accused was liable to be con-
    victed under Section 5 of the TADA Act and no illegality has been
    committed in convicting the accused under Section 5 of the TADA Act.
    The learned counsel has also submitted that the specific charge under
B   Section 5 of the Act was made aginst the accused. He therefore, had every
    opportunity to give the evidence in rebuttal. He was also specifically told
    about the said charge under Section 5 of the Act at the time of his
    examination under. Section 313 of Cr.P.C. But no statement by way of
    rebuttal has been made by the accused. Therefore, no illegality has been
c   committed in convicting the accused by the learned Designated Court. As
    the accused had ample opportunity to lead evidence by way of rebuttal of
    the presumption under Section 5 of TADA Act and the learned Desig-
    nated Court had not prevented him from adducing evidence in rebuttal, no
    question of suffereing any unmerited prejudice arises in this case. He has
D   also submitted that the rifle was examined by an armourer who with his
    expertise had found that the said rifle was in a firing condition. Accodingly,
    the Court was justified in accepting such deposition of the armourer. It was
    not at all necessary that the firing condition of the rifle was required to be
    ascertained only by resorting to actual firing. The learned counsel for the
    State has further submitted that in the instant case, the minimum sentence
E   that may be imposed under Section 5 of the Act has been passed by the
    learned Judge. Therefore, no interference is called for by this Court and
    the appeal deserves to be dismissed.

           After giving our careful consideration to the facts and circumstances
p   of the case and the submissions made by the learned counsel appearing for
    the parties it appears to us that in the instant case, the prosecution has
    examined the witnesses to establish that the accused had been ap-
    prehended with a rifle of .315 bore and 109 live cartridges of such rifle. It
    is an admitted position that the accused had no licence or permit to possess
G   the said rifle and the cartridges at the relevant time. It is also an admitted
    position that TADA Act was applicable in the area where the accused was
    a;>prehended. Accordingly, all the three ingredients as indicated in the said
    Constitution Bench decision, have been fulfilled in the instant case. Nor-
    mally, the presence of the PW 5 and PW 6 in the police chowki was not
    expected at that hour but PW 5 and PW 6 have given a reasonable
H   explanation as to why they had come to the police chowki on that day and
                  SUKHPAL v. STATE OF HARYANA                           277

why they had waited there. We do not find any valid reason to discard the A
evidences adduced in the case by PW 5 and PW 6. Apart from that, the
police personnel has also deposed and such deposition stand fully cor-
roborated by the evidences of PW 5 and PW 6 and by the recovery of the
rifle and catridges. It may be indicated here that as a rule of prudence,
corroboration preferably by a reliable witness is desirable. But in all cases, B
such corroboration cannot be insisted as a matter of course because it may
not be possible in all cases to get corroboration from an independent
witness. In our view, the learned counsel for the State is justified in her
contention that in the instant case, firing capability of the said rifle has been
found by an expert namely an armourer who has a special training in the
subject. It is not absolutely necessary to make a test firing for the purpose C
of ascertaining whether or not a rifle is capable of firing. We are, therefore,
not inclined to hold that the firing capability of the said rifle has not been
established in the instant case. It also appears to so that the accused was
charged under Section 5 of the TADA Act but he has not given any
explanation as to why and for what purpose he had possessed the said rifle D
and the said cartridges. Even when opportunity under Section 313 Cr.P.C.
was given to the accused, no statement has been made as to why the said
arms and ammunition had been kept by him at the time of his apprehen-
sion. In our view, in the facts and circumstances of the case, the accused
had sufficient opportuntiy to explain the purpose of possession of the said
arm and ammunition and to rebut the statutory presumption under Section E
5 of the TADA Act but he has failed and neglected to give any explanation
or evidence which may be even remotely construed as an evidence by way
of rebuttal. In the aforesaid circumstances, we do not find any merit in this
appeal and the same is therefore dismissed.

CRIMINAL APPEAL NO. 733 OF 1992 :
                                                                               F

      In view of the decision referred in Criminal Appeal No. 732 of 1992,
no further order need be passed in this appeal and the same_ is also
dismissed.

T.N.A.                                                  Appeals dismissed.    ~