LexBRIJ PAL versus STATE (DELHI ADMINISTRATION)
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/ l BRJJ PAL A v. STATE (DELHI ADMINISTRATION) FEBRUARY 1, 1996 [G.N. RAY AND B.L. HANSARIA, JJ.] B TADA Act: S.5-f'erson found with unauthorised country made pistol with live cartridges-Absence of independent witnesses-Despite efforts independent C witnesses could not be procured-In the circumstances deposition of police officials not to be discorded-In view of the preswnption in the provision prosecution need not establish that the person was found in conscious possession of unauthorised amt in a notified area and really intended to use it for terrorist or disruptive activities-No evidence by way of rebuttal to such statutory presumption led by accused-Hence conviction and sentence not D inteifered with. Abdula Poochamma v. State of A.P., [1989) Supp. 2 SCC 152, distin- guished. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 708 of 1995. From the Judgment and Order dated 5.8.94 of the Designated Court at Delhi in F.I.R. No. 326 of 1990. Kirpal Singh (A.C) for the Appellant. S.N. Sikka, B.K. Prasad for S.N. Terdol for the Respondent. The following Order of the Court was delivered : E F This appeal has been preferred by the appellant under Section 19 of G the Terrorist and Disruptive Activities (prevention) Act (hereinafter referred to as the TADA Act). By the judgment dated 5.8.94, the learned Judge, Designated Court No. 11, Delhi has convicted the Appellant under Section 5 of the TADA Act and sentenced him to suffer rigorous imprison- ment for five years together with a fine of Rs. 500, in default, to undergo H 1143 1144 SUPREME COURT REPORTS [1996] 1 S.C.R. A further rigorous imprisonment for 15 days. According to the prosecution case, the police received a secret information that one person of bad character who had been involved in some murder cases in U.P. was present with some unauthorised weapons at the Libaspur bus stand, Dhaula Kuan. The police thereafter organised a raiding party. They approached some B public persons to become witness to search and seizure, but as no one agreed to become witness for search and seizure of such person, the police thereafter organised a raid with the help of the police officials. At about 1.30 P.M. on the day of occurrence at the Libaspur bus stand, the appellant was found and on search of his person a countrymade pistol loaded with one live cartridge and two other live cartridges were recovered hy the C police. After taking measurement of the said pistol and one of the cartridges, a sketch map was prepared and the said weapon and cartridges were sealed and sent by the police to police Mal Khana. After obtaining necessary sanction from the authorities concerned, the said case under Section 5 of the TADA Act was initiated against the appellant. D The prosecution in this case has examined Head Constable Sathir Singh (PW.1), Jagdish Chander, Sub-Inspector (PW.2) , AS! Mahipal Singh (PW.3), AS! Santokh Singh (PW.4), Head Constable Baljit Singh (PW.5) and constable Ramesh Kumar (PW.6). It may be stated here that PW.5 was the Incharge of the Police Mal Khana where the seized pistol E and the cartridges were kept in sealed cover and he has deposed to the effect that he received the said articles in a sealed parcel. They were also kept in a sealed cover until they were sent to the ballistic expert at BTP Unit, Old Police Line. The armourer has also deposed that he had taken training about the arms and he has also deposed that as a matter of fact, F G he fired one of the seized cartridges from the seized pistol and found the pistol in working condition. As the prosecution case was found to have been established beyond doubt by the deposition of the said witnesses, the learned Designated Court convicted the appellant under Section 5 of the TADA Act and passed the aforesaid sentence. Mr. Kirpal Singh, learned counsel appearing for the appellant as Amicus Curiae, submits that according to the prosecution case, the appel- lant was arrested from the Libaspur bus stand, Dhaula Kuan. The police could have procured independent witnesses to establish that the appellant was in fact apprehended by the police from the said place as alleged in the H prosecution case and from his possession the said pistol and the cartridges ._:it_ • t BRIJ PAL v. STATE 1145 were recovered. But in the instant case, only the police personnel were A examined. In the absence of any independent disinterested public witness, solel
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