JUDGMENT

This Criminal Appeal has been directed against the judgment dated 17th October, 1988 passed by the Additional Sessions Judge, Designated Court, Sirsa in Terrorist Case No. 47 of 1986, convicting the appellant under S. 25 of the Arms Act and sentenced him to undergo rigorous imprisonment for one year. The prosecution case is that on 7-7-1986 head constable, Jai Dayal, P.W. 3 along with head constable Ram Sarup, and two other constables were going from C.I.A. Staff, Sirsa towards village Bappan. They stopped the appellant who was coming from the side of his Dhani. On seeing the police party the appellant is said to have turned back. The police party apprehended the appellant on suspicion, on search made of his person one pistol was recovered from the right (sic) of his Tahmad and one cartridge was recovered from the right side pocket of his shirt. The accused did not possess any licence for the said pistol and the cartridge. The head constable, Jai Dayal, P.W. 3 sent a ruqa to the police station upon which the offence was registered against the appellant. The Head Constable Jai Dayal commenced the investigation and recorded the statement of the witnesses.

2. The challan was filed against the appellant under Section 25 of the Arms Act, 1959 read with Section 6(1) of the Terrorist & Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as TADA). The defence of the appellant was that he was falsely implicated at the instance of one Hans Raj Lambarder of village Neza Della. The appellant also examined four witnesses in his defence to show that he was in fact taken into custody on 3-7-86 and a false case under the Arms Act was foisted on him. The learned Designated Court rejected the defence and accepting the prosecution evidence and convicted the appellant under Section 25 of Arms Act and sentenced him to undergo rigorous imprisonment for one year. The Designated Court however found no case under Section 6 of TADA and, therefore, acquitted him under that charge.

3. The learned counsel appearing for the appellant urged before us that there is ample evidence and material on record to show that the appellant was falsely implicated in the offence by the police party. He also submitted that the police also did not examine the independent witness Bhagwandas who is said to be present at the time of recovery and seizure of the pistol and the cartridge. He further submitted that there were other public witnesses available at the place of occurrence but none of them were taken as witnesses to the said occurrence. The learned counsel took us through the defence evidence to show that the appellant was in fact apprehended and taken into custody by the police from the resident of the appellant on 3-7-1986 and foisted a false case to him on 7-7-1986 while he was already in the police custody since 3-7-1986. On going through the prosecution and defence evidence we find that there is much substance in the submission made by the learned counsel for the appellant. It is true that one Bhagwan Das, a public witness was a witness to the recovery and seizure of the pistol and cartridge but he was given up by the prosecution on the ground that he has been won over by the accused. There being absolutely no material to entertain such an apprehension. It also turns out from the prosecution evidence that other public witnesses were also available at the place of occurrence but none of them was taken as witness to the incident of seizure and recovery. Kewal Krishan, P.W. 4 is the son of the appellant who deposed that his father, the appellant herein was taken into custody on 3-7-1986 from his house by the C.I.S. staff Sirsa for which he had made complaint to the Sub-Divisional Magistrate and Deputy Commissioner of Police on 5-7-86. He stated that after his father was taken away by police on 3-7-86 he waited for the return of his father but when he did not return even on 4-7-86, he approached Jaimal Chand, Sarpanch of village Neza Della on