Crl. Appeal No.359-SB of 2001 1 In the High Court for the States of Punjab and Haryana at Chandigarh … Crl. Appeal No.359-SB of 2001 Date of decision:December 23,2010 Santokh Singh ..Appellant Versus State of Punjab ..Respondent Coram: Hon'ble Mr. Justice M.Jeyapaul Present: Mr. Dhirinder Chopra, Advocate for the appellant. Mr.T.S. Salana, DAG, Punjab for the respondent. Whether referred to reporter: Yes M.Jeyapaul,J.(Oral) 1.The sole accused who was convicted for an offence under Section 25 of the Arms Act and sentenced to undergo rigorous imprisonment for one year and to pay fine of ` 2000/-, in default of payment of fine to undergo rigorous imprisonment for 3 months has come forward with the present appeal. 2. The brief case of the prosecution as unfolded by the witnesses on its sides is as follows:- a) On 18.8.1996 at about 4.30 P.M., a police party headed by PW5 SI Sucha Singh was on patrol duty. When the patrolling party reached near the bridge drain of village Boparai, the accused was spotted along with another boy coming on a scooter. On suspicion, a personal search of the accused Santokh Singh was made by PW5 in the presence of PW4,SI Lakhbir Singh and yet another witness by name Gurbux Singh, a member of the Panchayat. On personal search, it was found that the accused possessed, a country made pistol of .12 bore. He was also found in possession of three live cartridges in his right pocket. No licence could be Crl. Appeal No.359-SB of 2001 2 produced by the accused for the possession of said arm and ammunition. b) A further search was made by PW5 in the presence of the aforesaid police official and the independent witness. Two gold necklace and a sum of ` 42/- were also found in the possession of the accused. The same were recovered by PW5. Pistol and cartridges were put in a parcel and the same were sealed at the spot. The aforesaid material objects were recovered under separate recovery memos. The scooter driven by the accused was also recovered under memo. Ex. PE. A Ruqa Ex. PF was sent to the Police Station. On the basis of which a formal FIR was registered. c) The Additional District Magistrate gave consent for prosecution Ex. PA under Section 39 of the Arms Act, 1959. PW1 is an official attached to the office of Additional District Magistrate. PW2 ASI Ashok Kumar, who was the Head Armourer tested the pistol recovered in this case and certified that the weapon was in working condition. d) PW5 having examined the witnesses and recorded the statements of the witnesses laid final report against the accused under Section 25 of the Arms Act, 1959. 3. On the side of the defence, DW1, Sarpanch of village Kukkar Pind was examined. He stated in his evidence that the accused was taken into custody on 12.8.1996 by the police. PW5 took the accused in his custody in connection with the case which was registered on 10.8.1996. Efforts made by him to retrieve the accused from the custody of the police did not fructify. Ultimately, he was informed that the accused during interrogation sustained injuries and therefore, he could not be released. 4. Learned trial Judge having placed reliance on the evidence of PW3 and PW4 in the back ground of the evidence of PW1 and PW2 has returned a finding that the prosecution has established Crl. Appeal No.359-SB of 2001 3 beyond reasonable doubt that the accused had committed the offence punishable under Section 25 of the Arms Act, 1959. 5. Learned counsel appearing for the appellant-accused who would vehemently submit that the prosecution has not come with any explanation for the delay of 19 days in sending the pistol for examination. Surprisingly, the pistol was not shown to PW2 who allegedly tested the working condition of the pistol during the course of his examination before the trial Court. The seal found on the parcel containing the pistol was also tempered with,inasmuch as an original seal was found, despite the fact that the original seal was broken and the new seal of PW6 was affixed. However as per the own showing of the prosecution, the report submitted by PW2 did not see the light of the day. The three cartridges recovered from the accused were not sent for test. The only independent witness who was allegedly associated in this case was not examined by the prosecution. The non- production of the two gold necklace along with ` 42/- alleged to have been recovered from the accused during the course of trial belies the version of the prosecution as to the recovery of those material objects from the custody of the accused. The scooter allegedly recovered from the accused was also not produced. It was only the District Magistrate who has the authority to grant sanction in terms of Section 39 of the Arms Act, 1959 . The author of Ex. PA who was the Additional District Magistrate has no authority to grant any sanction for prosecution. The accused who was arrested on 12.8.1996 in connection with a case which was registered on 10.8.1996 was detained in the police station and thereafter, the present case was cooked up by the Investigating Officer. Drawing attention of this case to the various discrepancies found in the evidence of the material witnesses, he would submit that the prosecution failed to establish beyond reasonable doubt that an Crl. Appeal No.359-SB of 2001 4 offence was committed by the accused under Section 25 of the Arms Act, 1959. 6. Learned DAG, Punjab appearing for the State submit that the Additional District Magistrate has all the powers of District Magistrate and therefore, the sanction accorded by him under section 39 of the Arms Act, 1959 holds good. The minor discrepancies found in the evidence of the material witnesses are being blown out of proportion. As no complaint was lodged by the victim or DW1 as to the illegal detention of the accused-appellant, the court cannot give much credence to the defence version that there was an illegal detention which led to the injury sustained by the accused-appellant. Drawing the attention of this court to the evidence of the material witnesses, he would submit that the prosecution has established beyond reasonable doubt that accused has committed an offence under Section 25 of the Arms Act,1959 and the trial court has rightly rendered a conviction. 7. The entire evidence projected by the prosecution was thoroughly perused by this court. The material produced by the prosecution would go to show that it was a case of rank concoction by the investigating agency against an innocent person. The above observation is fortified by the reasons given herein below. 8. The pistol and the cartridges were allegedly recovered from the accused by PW5 on 18.8.1996 but quite unfortunately, the pistol alone was sent for examination by the Head Armourer, PW2 only on 6.9.1996, after a delay of about 19 days. No explanation was forthcoming from the prosecution as to why such a delay had occurred in sending the pistol to the Head Armourer for examination. 9. It is the case of the prosecution that an independent witness Gurbux Singh was associated for the purpose of recovery. The evidence of PW5 would disclose that the said independent witness was Crl. Appeal No.359-SB of 2001 5 already known to PW5. Gurbux Singh was the only eye witness in the case launched against the accused under Section 25 of the Arms Act, 1959. No reason was assigned by the prosecution as to why Gurbux Singh was not examined in this case. 10. I am at a loss to understand as to why PW5 choose to entrust his seal to PW4, after affixing it on the parcel containing pistol, when Gurbux Singh an independent witness was very much available with them. Surprisingly as per the version of PW5, PW4 has returned the seal to PW5 the next day itself, even before the pistol reached the Head Armourer PW2. PW4 during the course of evidence would state that he was not entrusted with the seal after affixing the same on the parcel containing the pistol by PW5. It was entrusted by PW5 to Gurbux Singh. The evidence of PW4 poses a doubt on the veracity of PW5. 11. The parcel containing the pistol allegedly recovered from the accused with the seal of PW5 was entrusted to PW3 by PW5 on 18.8.1996. In turn PW3 handed over the same to PW6 on 6.9.1996. PW6 took the parcel containing the pistol to PW2, the Head Armourer who tested the workable condition of the pistol and certified that the pistol was in a working condition. PW2 would categorically state that the seal put by PW5 on the parcel containing the pistol was broken and the seal of PW6 was affixed after the fest process was completed. The pistol marked as Ex. P.1 through PW5 before the trial court surprisingly bore the original seal of PW5. The seal of PW6 alleged to have been affixed on the parcel containing the pistol after breaking the seal of PW5 was not at all found over there. Therefore, I find that the pistol sent for test was not the one which was allegedly recovered from the accused. 12. Quite unfortunately, the report submitted by PW2 was not produced before the court. PW2 has given evidence without Crl. Appeal No.359-SB of 2001 6 production of his test report. Three cartridges were allegedly recovered from the accused but those three cartridges were not sent for test. In this context, it is very much relevant to refer to the decision of the Hon'ble Supreme Court of India in Kartar Singh Versus State of Punjab 1993 Crl.L.J. 183. The Supreme Court was disinclined to accept the version of the prosecution on two major grounds:- (i)There was a delay in sending the Arm for mechanical test. (ii)There was failure to send the cartridges to the Armourer for test. Of course the material contradiction in this case was weighed in the mind of Hon'ble Supreme Court while recording acquittal. Applying the ratio laid down by the Supreme Court, I find that the delay in sending pistol for test, the non production of the test report and the failure to send the cartridges to the Head Armourer for examination go to the root of the case. 13. PW2 has deposed before the court that he conducted the test and found that the pistol was in a working condition. He being an expert should have gone in for test firing the weapon. Nothing has been stated by PW2 that the weapon was test fired to arrive at a conclusion that it was capable of inflicting injury. 14. PW5 has categorically deposed that he not only recovered the pistol along with three cartridges but also gold necklace, a sum of ` 42/- and the scooter driven by the accused. The prosecution has come out with a case that those material objects were recovered from the possession of the accused under separate recovery memos, but those material objections were not produced by the prosecution to establish that those material objects were also recovered from the accused at the place where the recovery was effected. Quite fortunately, the accused had taken a stand that he was falsely implicated and no gold necklace or any cash or any scooter was recovered from his possession. Had he made a claim for those gold Crl. Appeal No.359-SB of 2001 7 necklace, the cash and the scooter alleged to have been recovered from him, the State would have been confronted with an embarrassment. 15. Section 39 of the Arms Act, 1959 would read that no prosecution shall be instituted against any person in respect of any offence under Section 39 thereof without the previous sanction of the District Magistrate. In the instant case, PW1 an official working under Additional District Magistrate issued Ex. P8 sanction letter, was examined. In all fairness, the Additional District Magistrate who gave sanction should have been subjected to examination before the court as otherwise the subjective satisfaction specifically recorded by the sanctioning authority could not be tested by the defence. 16. The provisions under Section 39 of the Arms Act, 1959 specifically states that it is only the District Magistrate who has the authority to give sanction for prosecution. The Additional District Magistrate has no business to entertain any plea for granting sanction for prosecution. No notification was produced to show that he was vested with the authority to grant sanction in the place of District Magistrate. Therefore the sanction accorded by the Additional District Magistrate under Section 39 of the Arms act, 1959 is found to be defective. 17. I have already observed that Gurbux Singh, an independent witness was very much known to PW5. It is in evidence that he hails from village Chak Kalan which was located about 4 kilometers from the place of recovery i.e., Boparai. No one was associated from the village Gohir where the recovery was allegedly effected from the accused. The material objects were reportedly recovered by PW5 at about 4.30 P.M. on 18.8.1996. The non association of any independent witness apart from Gurbax Singh who Crl. Appeal No.359-SB of 2001 8 was already known to PW5 and the non examination of Gurbax Singh deal a death blow to the case of the prosecution. 18. In my estimation, the evidence of DW1 is very important in this case. Normally, accused would bring a witness on his side to support his defence blindly. PW1 Mohinder Singh was the Sarpanch of village Kukkar Pind. He is found to be a very respectable witness. There is no reason for him to come and depose against the prosecution and in favour of the accused. Further his evidence is fortified by the medical report Ex. DB marked on the side of the defence. Therefore, there is no reason to reject the testimony of DW1. DW1 has cogently stated before the court that the accused was arrested by PW5 as early as on 12.8.1996 in connection with a case which originated on 10.8.1996 and was detained by PW5 in the Police Station. It is his further version that PW5 was not inclined to send away the accused from his custody as he had sustained injury during the course of interrogation. The above evidence of DW1 is completely supported by Ex. DB marked on the side of the defence. 19. The medical report Ex. DB would establish that the accused sustained injuries within 10 days of examination on his forearm, knees, shoulder and thigh. Surprisingly, the medical examination of accused and the medical report Ex. DB have been completely suppressed by the prosecution. In all fairness, the prosecution should have come out openly with the medical report Ex. DB to bring forth the truth before the court. The accused had to labour himself to bring forth Ex. DB the medical report for proper appreciation of the defence set up by him. The evidence of DW1 in the background of Ex. DB, the medical report and the admission of PW5 that the accused was already booked for a criminal case way back on 10.8.1996 would go to establish that the accused in fact received Crl. Appeal No.359-SB of 2001 9 injuries only during his detention in Police Station. 20. I also find that there is some laxity on the part of the learned Sessions Judge who conducted the trial of this case. The incriminating materials relied upon by him for convicting the accused under Section 25 of the Arms Act, 1959 were not at all brought to the notice of the accused when he was examined under Section 313 Cr.P.C. In fact, totally wrong facts were brought to the notice of the accused and his attention was invited for offering explanation relating threto. It is not the case of the prosecution that the accused was apprehended at the Bus Stand Gohir on 18.8.1996. The case of the prosecution is that the accused was spotted, intercepted and arrested only at near the bridge at village Boparai but a question was put to the accused under Section 313 Cr.P.C. as though he was arrested at a Bus Stand Gohir. Ex.P8 the sanction letter was passed only by Additional District Magistrate and not by the District Magistrate but during the course of examination under Section 313 Cr.P.C., unfortunately, a question was framed and put by the learned Sessions Judge as though the District Magistrate gave sanction under Ex.P8. The learned Sessions Judge is bound to bring to the notice of the accused the incriminating circumstances found against the accused in the evidence let in by the prosecution. The affidavits given by PW 3 reflects certain incriminating circumstances against the accused. There was no reference to the incriminating circumstances found in the affidavit filed by PW3 in the questions framed under Section 313 Cr.P.C. I find the prosecution has come up with a concocted story against the accused as though he was found in possession of arm and ammunition. The trial court has completely misread the evidence and given a verdict of conviction as against the accused. Therefore, the judgment of conviction recorded and Crl. Appeal No.359-SB of 2001 10 sentence imposed by the trial Court under Section 25 of the Arms Act, 1959 is set aside and the accused is acquitted. The fine amount paid by the accused shall be refunded forthwith. The bail executed by him stand annulled. Consequently, the appeal is allowed. December 23,2010 (M.JEYAPAUL) nk JUDGE Circulate to the Press and Journal.