1996 JTR(SC) 1456
1996 3 AICLR 1 ; 1997 AIR(SC) 2417 ; 1997 AIR(SCW) 2330 ; 1996 2 ALD(Cri)(SC) 904 ; 1996 CriLR 679 ; 1996 3 Crimes(SC) 284 ; 1997 CrLJ 2978 ; 1996 6 Scale 518 ; 1996 11 SCC 685 ; 1997 SCC(Cri) 315 ; 1996 SCR 245 ; 1996 KHC 1374 ; 1997 1 KLT(Online) 1067 ; 1996 6 Supreme 774
1996(6) Supreme 774
SUPREME COURT OF INDIA
M.K. Mukherjee and S.P. Kurdukar, JJ.
Sahib Singh -Appellant
versus
State of Punjab -Respondent
Criminal Appeal No. 61 of 1992
Decided on 13-9-1996
Counsel for the Parties :
For the Appellant : Ms. Naresh Bakshi, Advocate.
For the Respondent : Ms. Rupinder Wasu, Advocate, for R.S. Suri, Advocate.
IMPORTANT POINT
Where no attempt was made by police to join some persons of locality who were available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility.
Act
Referred
:ARMS ACT : S.25
CRIMINAL PROCEDURE CODE : S.100(4)
TERRORIST AND DISRUPTIVE ACTIVITIES PREVENTION ACT : S.5
A) The appellant was convicted under Section 25 of the Arms Act, 1959 and Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 for alleged possession of a revolver and live cartridges. The statutory provisions under the referred acts and sections govern the prevention of terrorist activities and the regulation of arms, providing for stringent penalties and special procedures in designation of courts for such offences. The case hinges on the legality of the search, seizure, and chain of custody of the incriminating arms.
B) Key legal principles include that search and seizure must be conducted in the presence of independent respectable local witnesses, evidentiary value is weakened if such witnesses are not examined, seized arms must be packeted and sealed to prevent tampering, and a missing link in the chain of custody creates reasonable doubt. The prosecution must prove the recovery and condition of the arms beyond reasonable doubt.
Facts of the case:
On May 12, 1990, the appellant was apprehended by police officials near Bole-di-Bambi on suspicion. A revolver with six live cartridges was recovered from his bag. The appellant pleaded not guilty, alleging false implication. The prosecution examined four witnesses, including police officers and an armoury expert who testified the weapon was mechanically tested and found in working order. The Designated Court convicted the appellant based on this evidence.
Findings of Court:
The court found that the prosecution failed to call independent witnesses to observe the search, did not packet or seal the seized revolver and cartridges, and failed to explain how the weapon moved from the arresting officer to the arms expert via a head constable. These infirmities undermined the reliability of the evidence and created reasonable doubt.
Issues:
Whether the Designated Court was justified in convicting the appellant solely on the testimony of police officers without independent witnesses, whether the failure to packet and seal the seized arms rendered the evidence unreliable, and whether the missing link in the chain of custody affected the prosecution case.
Ratio Decidendi:
The absence of independent witnesses to the search, lack of packeting and sealing of the seized arms, and the unexplained transfer of the weapon created reasonable doubt. The benefit of doubt must be given to the accused, and conviction cannot be sustained on such infirmities.
Result:
The appeal is allowed. The conviction and sentence are set aside. The appellant is discharged from bail bonds, and any fine paid is refunded.
A) The appellant was convicted under Section 25 of the Arms Act, 1959 and Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 for alleged possession of a revolver and live cartridges. The statutory provisions under the referred acts and sections govern the prevention of terrorist activities and the regulation of arms, providing for stringent penalties and special procedures in designation of courts for such offences. The case hinges on the legality of the search, seizure, and chain of custody of the incriminating arms.
B) Key legal principles include that search and seizure must be conducted in the presence of independent respectable local witnesses, evidentiary value is weakened if such witnesses are not examined, seized arms must be packeted and sealed to prevent tampering, and a missing link in the chain of custody creates reasonable doubt. The prosecution must prove the recovery and condition of the arms beyond reasonable doubt.
Facts of the case:
On May 12, 1990, the appellant was apprehended by police officials near Bole-di-Bambi on suspicion. A revolver with six live cartridges was recovered from his bag. The appellant pleaded not guilty, alleging false implication. The prosecution examined four witnesses, including police officers and an armoury expert who testified the weapon was mechanically tested and found in working order. The Designated Court convicted the appellant based on this evidence.
Findings of Court:
The court found that the prosecution failed to call independent witnesses to observe the search, did not packet or seal the seized revolver and cartridges, and failed to explain how the weapon moved from the arresting officer to the arms expert via a head constable. These infirmities undermined the reliability of the evidence and created reasonable doubt.
Issues:
Whether the Designated Court was justified in convicting the appellant solely on the testimony of police officers without independent witnesses, whether the failure to packet and seal the seized arms rendered the evidence unreliable, and whether the missing link in the chain of custody affected the prosecution case.
Ratio Decidendi:
The absence of independent witnesses to the search, lack of packeting and sealing of the seized arms, and the unexplained transfer of the weapon created reasonable doubt. The benefit of doubt must be given to the accused, and conviction cannot be sustained on such infirmities.
Result:
The appeal is allowed. The conviction and sentence are set aside. The appellant is discharged from bail bonds, and any fine paid is refunded.
JUDGMENT
M.K. Mukherjee, J.-This appeal is directed against the judgment and order dated December 21, 1991 rendered by the Additional Judge, Designated Court, Amritsar in Sessions Case No. 21 of 1991 convicting and sentencing the appellant under Section 25 of the Arms Act, 1959 and Section 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987.
2. According to the prosecution case or May 12, 1990 at or about 12.30 P.M. when Inspector Gurmit Chand of Chheharata Police Station (PW 3) along with Sub-Inspector Rattan Lal (PW 2) and other police officials were no petrol duty near Bole-di-Bambi they apprehended the appellant on suspicion and on search recovered a revolver with six live cartriges from the bag he was holding in his right hand.
3. The appellant pleaded not guilty to the above accusation and his defence was that he was falsely implicated at the instance of his neighbour Sewa Singh.
4. To prove its case, prosecution examined four witnesses of whom Manohar Lal (PW 1), a clerk in the office of the District Magistrate, Amritsar, proved the sanction accorded for prosecution of the appellant under the Arms Act, PWs 2 and 3 spoke about the arrest of the appellant and the recovery of the revolver and the cartriges from him and Sital Singh (PW 4), an Armourer, claimed to have mechanically tested the revolver and found it in working order. Accepting their evidence the learned Judge recorded the impugned order of conviction and sentence.
5. It was first contended on behalf of the appellant that since no independent witness was examined by the prosecution to prove the alleged recovery of the arms and ammunitions from the appellant the Designated Court was not justified in convicting him relying solely upon the evidence of the two police officers. It was next contended that since no evidence was led by the prosecution to prove that the offensive articles were packeted and sealed after their seizure the possibility of tampering with them could not be ruled out. It was lastly contended that from the test report of PW 4 (Ex. PF) it would appear that one Head Constable Baita Singh produced the revolver before him (PW 4) but neither he was examined nor any other witness to explain how he (the constable) got the revolver from PW 3.
6. Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility. We next find from the record that the arms and ammunitions allegedly recovered from the appellant and seized were not packeted and sealed. In Amarjit Singh v. State of Punjab1 this Court has observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record we further find that there is no evidence to indicate with whom the revolver was after its seizure by PW 3 till it was sent to the Arms Expert for testing through constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities we are of the view, that the appellant is entitled to the benefit of reasonable doubt.
7. We, therefore, allow this appeal and set aside the conviction and sentence recorded against the appellant. The appellant, who is on bail, is discharged from his bail bonds. Fine, if paid, be refunded to him.
Appeal allowed.
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