IMPORTANT
Where search and seizure of fire arms is done f by police witnesses and a chance witness their evidence has to be scrutinised with care and caution and in this scrutiny if there are discrepancies as to manner of recovery, the prosecution evidence does not inspire confidence to support a conviction u/s. 5 of TADA r/w. S. 25 of Arms Act.

JUDGMENT

Faizan Uddin, J. - This appeal under Section 16 of the Terrorist & Disruptive Activities (Prevention) Act, 1985 has been directed against 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 appellants has been convicted under Section 25 of the Arms Act read with Section 5 of C Terrorist and Disruptive Activities Act, 1985 (hereinafter referred to as TADA) and sentenced to undergo rigorous imprisonment for five years and to pay a fine of RS. 1000/-, in default of payment of fine to undergo further imprisonment for a period of six months.

2. The prosecution case was that on 25.10.1987 when Sub-Inspector. Baljit Singh. PW 7 alongwith other police officials was on sic for checking Railway Station they spotted the appellant sitting in the waiting hall of the railway station, Rewari and seeing Police party started walking which raised suspicion. On personal search of the appellant one country made 12 bore pistol, Ext P 1 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. PA to the police Station, G.R.P.S. Rewari, which was received by ASI Virender Singh, PW 1 on the basis of which he recorded formal F.I.R. Ext. PA/1. The said pistol was examined 6y the Armourer Head 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. PD 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. P.C. the appellant denied the allegation of recovery of the alleged pistol from the possession and stated that he was falsely implicated. The appellant also 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 the appellant as noticed above.

3. Learned counsel for the appellant submitted that there is no reliable evidence on record to support the conviction of the appellant yet learned Trial Judge have convicted the appellant without proper appreciation of the prosecution evidence by accepting the evidence of highly 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 witness for search and seizure who is nothing out a chance witness. Learned Counsel for the appellant further submitted that the prosecution evidence suffers from various infinnities 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 reasonable ground to reject the same.

4. We have minutely scrutinised the persecution 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 of the evidence we find substance and much force in the aforementioned submissions made by the learned Counsel for the appellants.

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 and Sub-Inspector, Baljit Singh, PW 7. The rest of the prosecution witnesses are formal in nature. PW 6 and PW 7 as said above are