SUPREME COURT OF INDIA

Before:- Y.K. Sabharwal and H.K. Sema, JJ.

Criminal Appeal Nos. 450 with 602 of 2002. D/d. 23.7.2002.

Sunder - Appellant

Versus

State (N.C.T. of Delhi) - Respondent

For the Appellant :- R.K. Maheshwari, Mohd. Nasir, Rishi Maheshwari and Jana Kalyan Das, Advocates.

For the Respondent :- Ashok Bhan, R.K. Rathore and D.S. Mahra, Advocates.

Arms Act, 1959, Section 25 - Fire arms - Illegal possession - Recovery - Testimony of witnesses - Not reliable and material contradictions - One witness turned hostile - Other two witnesses of recovery not examined despite declared hostile - Accused acquitted.

[Paras 6 and 9]

Cases Referred :-

Suleman v. State of Delhi, AIR 1999 Supreme Court 1707 : (1999) 4 SCC 146.

Sukhbir Singh v. State of Haryana (1997) 8 JT (SC) 379 : (1997) 4 Crimes 71.

JUDGMENT

Criminal Appeal No. 450/2002 has been filed by Sunder and Criminal Appeal No. 602/2002 by Satbir Singh under section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ('TADA' in short) against the judgment and order dated 5th and 6th May, 1998 passed by the Designated Court, Delhi. By the said judgment the appellants have been convicted for offences under Sections 399 and 402, Indian Penal Code as also Section 25 of the Arms Act. Besides these two appellants, the three other accused who were convicted by the Designated Court by common judgment were Suleman, Chiman and Sadhu Ram. Suleman and Sadhu Ram were also convicted under Section 5 of the TADA Act. We are, however, not concerned with their cases since the appeals filed by the said three were decided by this Court in case reported in AIR 1999 Supreme Court 1707 : 1999 CriLJ 2525 : 1999(4) SCC 146, Suleman and others v. State of Delhi and their conviction under Sections 399 and 402, Indian Penal Code was set aside. The conviction and sentence under TADA Act was, however, maintained and also the conviction and sentence for offence under Section 25 of the Arms Act. For offence under Section 25 of the Arms Act, the Designated Court has imposed on each of the appellants sentence of one year and fine of Rs. 400/-.

2. It is not in question that for reasonsstated in Suleman's case (supra) the conviction and sentence of the appellants as well for offences under Sections 399 and 402, Indian Penal Code deserves to be set aside.

3. That leaves the question in respect of conviction and sentence of the two appellants before us for offence under Section 25 of the Arms Act.

4. Challenging the aforesaid, learned counsel for the appellants have made two submissions : (1) Designated Court had no jurisdiction to try the case against the appellants, and (2) Recovery of knives from the appellants has not been proved and, therefore, the appellants deserve to be acquitted of the offence under Section 25 of the Arms Act.

5. The basis of the first submission is the non-framing of charge under any provision of TADA Act against the appellants. Learned counsel for the appellants submits that in view of the non-framing of charge against the appellants under TADA Act, the Designated Court had no jurisdiction to try them for offences under Sections 399 and 402, Indian Penal Code and under Section 25 of the Arms Act as Sections 11 and 12 of the TADA Act only confer power on the Designated Court to try offences under TADA Act and under other penal laws only when there is also a charge under the TADA Act. The submission is that if there is no charge against the accused under TADA Act the only course open to the Designated Court is to transfer the case under Section 18 of the TADA Act for trial of other offences by a Court having jurisdiction under the Code of Criminal Procedure. In support, reliance has been placed on the decision of this Court in Sukhbir Singh and others v. State of Haryana, (JT 1997(8) SC 379).

6. In support of the second contention, learned counsel for the parties have taken us through the testimony of P.Ws. 2, 3 and 6. P.W. 2 is a Head Constable Chand Singh, P.W. 3 is Inspector Ram Pal Sharma and P.W. 6 is S. I. Om Prakash. The testimony of P.W. 3 has no relevance in so far as the recovery from the appellants is concerned. According to the case of the prosecution, knives were recovered from the appellants. The recovery of knives is evidenced by Recovery Memos, P.W. 2/P (in respect of Sunder) and P.W. 2/Q (in respect of Satbir Singh). The recoveries were sought to be proved in the testimony of P.W. 2 Chand Singh.The said witness was, however, declared hostile. We have examined his testimony. It is not possible and safe to place any reliance on testimony of P.W. 2. The aforesaid two documents of recovery are witnessed by Head Constable Prakash Chand and ASI Rajbir Singh besides P.W. 2. Despite the fact that P.W. 2 was declared hostile, prosecution did not think it appropriate to examine the aforesaid other two witnesses of Recovery Memos, or at least one of them. Out of three witnesses of recovery, the senior most was ASI, other being two Head Constables. We have also examined the testimony of P.W.6 S.I. Om Prakash. There are material contradictions in the testimony of P.W.2 and P.W.6. Under these circumstances we have no option but to hold that the seizure of knives from the appellants has not been proved.

7. Learned counsel for the State submits that in view of the decision in Suleman's case (supra) the recovery against the appellants also stands proved. In the said decision the Court relying on the aforesaid prosecution witnesses held that the seizure of the fire-arms against the appellants before the Court in Suleman's case stood proved. We are not concerned with the seizure of the fire-arms. Regarding recovery of knives except a passing reference there is no discussion in Suleman's case. In any event, we are not concerned in these appeals with the question of recovery of fire-arms or knives from Suleman, Chiman or Sadhu Ram, the appellants in Suleman's case. In the present appeals, we are concerned with the recovery of the knives from the two appellants. It cannot be said that since the recovery against the three appellants in Suleman's case was held to be proved, it is not open to the appellants in the present appeals, to urge to the contrary. These appellants were not parties in Suleman's case and factual finding therein cannot bind them. Keeping in view Suleman's judgment, with the assistance oflearned counsel for the parties, we minutely examined the original case record since the State had not filed the record as was required by it under the Rules. On examination thereof, we have no doubt that the recovery from the appellants of the knives has not been proved and, therefore, their conviction under Section 25 of the Arms Act cannot be maintained.

8. In view of the aforesaid, it is not necessary to decide the first submission regarding the jurisdiction of the Designated Court.

9. For the aforesaid reasons, we allow these appeals, set aside the conviction and sentence of the appellants under Sections 399 and 402, Indian Penal Code and under Section 25 of the Arms Act and acquit them. Appellant-Satbir Singh shall be set at liberty forthwith, if not required in any other case. Appellant Sunder is on bail. Bail bonds executed by him will stand cancelled.

Appeals allowed.