Case Note & Summary
The appeal arose from a conviction under Section 25 of the Arms Act, 1959 read with Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA). The prosecution alleged that on 25 October 1987, a police party led by Sub-Inspector Baljit Singh apprehended the appellant at Rewari Railway Station and recovered a country-made 12 bore pistol from the right side of his pant without any permit or licence. A formal FIR was recorded by ASI Virender Singh, and the pistol was examined by an armourer who found it in working order. After sanction from the District Magistrate, Narnaul, the appellant was tried by the Designated Court, Faridabad at Narnaul, which convicted him and sentenced him to rigorous imprisonment for five years and a fine of Rs. 1,000. The appellant pleaded not guilty, denied the recovery, and examined two defence witnesses to show his good character and that he was travelling to meet DW2 on the day of the incident. The core legal issues were whether the recovery evidence was credible despite non-joinder of independent witnesses and whether the statutory presumption under Section 5 TADA arose and was rebutted. The appellant argued that the prosecution relied on interested police witnesses and a chance witness, Hira Lal PW5, despite availability of public witnesses and railway officials. He highlighted material discrepancies. The State relied on police testimony and recovery to establish conscious unauthorized possession in a notified area. The Supreme Court scrutinized the evidence as the first and last appeal under Section 16 TADA. It found that although 10 to 20 persons were present in the waiting hall, no independent public witness or railway official was joined, and no explanation was given for the omission. Hira Lal was a mobile sweet vendor and a chance witness whose evidence was contradicted regarding the time taken for investigation, the place of apprehension, and the location of the pistol in the pant pocket versus dub. These discrepancies, though minor individually, collectively created serious doubt about the recovery. On the TADA presumption, the Court relied on Sanjay Dutt v. State, (1994) 5 SCC 410, which held that the presumption under Section 5 is rebuttable by the accused on a standard of greater probability. The defence evidence showing good moral character, no previous conviction, and absence of any terrorist or disruptive activity was unshaken and sufficient to rebut the presumption. However, since the recovery itself was not proved beyond reasonable doubt, the question of applying Section 5 did not arise. The Supreme Court allowed the appeal, set aside the conviction and sentence under Section 5 TADA read with Section 25 Arms Act, and cancelled the appellant's bail bonds as he was already on bail.
Headnote
A) Criminal Trial - Search and Seizure - Non-Joining of Independent Witnesses - Arms Act, 1959 Section 25; Terrorist and Disruptive Activities (Prevention) Act, 1985 Section 5 - Recovery of country-made pistol from appellant at Rewari Railway Station was based on police witnesses and a chance witness; no independent public witnesses or railway officials were joined despite availability; court held recovery evidence unreliable due to non-joinder and material discrepancies, thereby vitiating conviction - Held that prosecution failed to prove possession beyond reasonable doubt (Paras 5-6). B) Criminal Law - Statutory Presumption under TADA - Rebuttal Standard - Terrorist and Disruptive Activities (Prevention) Act, 1985 Section 5 - Presumption that unauthorized possession of arms in notified area was for terrorist or disruptive activity is rebuttable on preponderance of probability; defence evidence of good moral character, no previous conviction, and absence of subversive activity rebutted presumption - However, since recovery itself was doubtful, application of Section 5 did not arise - Held that conviction under Section 5 TADA cannot stand (Para 7). C) Criminal Procedure - Appeal under TADA - Scope of Appellate Review - Terrorist and Disruptive Activities (Prevention) Act, 1985 Section 16 - Appeal is first and last appeal, necessitating minute scrutiny of prosecution and defence evidence - Held that close scrutiny revealed prosecution evidence not credible and defence evidence unshaken (Para 4).
Issue of Consideration
Whether the conviction under Section 25 Arms Act read with Section 5 TADA was sustainable given non-joining of independent public witnesses and material discrepancies in recovery evidence; whether the statutory presumption under Section 5 TADA arose and was rebutted.
Final Decision
Appeal allowed. Conviction and sentence under Section 5 TADA read with Section 25 Arms Act set aside. Appellant on bail; bail bonds cancelled.
Law Points
- Search and seizure must be supported by independent witnesses when available
- non-joining without explanation affects credibility
- chance witness evidence requires close scrutiny
- presumption under Section 5 TADA is rebuttable on preponderance of probability
- conscious possession in notified area essential
- defence evidence of good character can rebut statutory presumption
