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Rakesh Kumar Alias Sachdeva Alias Deva v. State (Delhi Admn.) .
Factual and Procedural Background
On the evening of 23 April 1991, a police patrol in Palam Village, New Delhi apprehended the appellant near a bus stand after observing suspicious behavior. A search of the bag he was carrying revealed eight country-made pistols and thirty-one live cartridges. The arms and ammunition were seized, packaged, and sealed under a recovery memo, and a First Information Report was lodged at Dabri Police Station. Following investigation by SI Sube Singh and receipt of sanction under Section 39 of the Arms Act, a charge-sheet was filed.
The Designated Court, New Delhi tried the appellant for offences under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and Section 25 of the Arms Act, 1959. Upon conclusion of the trial, the court convicted him on both counts, sentencing him to five years’ rigorous imprisonment and a fine of ₹5,000 under TADA, with no separate sentence under the Arms Act. The appellant appealed against these convictions and sentences, resulting in the present judgment.
Legal Issues Presented
- Whether the non-examination of the investigating officer, SI Sube Singh, vitiated the prosecution case or caused prejudice to the defence.
- Whether failure to secure and examine independent public witnesses to the recovery undermined the credibility of the prosecution evidence.
- More generally, whether the evidence on record was sufficient to sustain the appellant’s convictions under Section 5 of TADA and Section 25 of the Arms Act.
Arguments of the Parties
Appellant's Arguments
- The prosecution’s failure to examine SI Sube Singh, who conducted the investigation, cast serious doubt on the bona fides of the case.
- No independent public witness was produced despite the alleged recovery occurring at a public bus stand, suggesting fabrication of evidence.
The opinion does not contain a detailed account of the prosecution’s specific rebuttal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court first evaluated the testimonies of Constable Jagpal Singh (PW 1) and Head Constable Ramesh Kumar (PW 2), both members of the patrol party. Finding their evidence consistent, mutually corroborative, and unshaken in cross-examination, the Court held it reliable.
Addressing the non-examination of SI Sube Singh, the Court noted that despite best efforts the prosecution could not secure his presence. Because the defence failed to demonstrate any specific prejudice—such as the need to contradict statements under Section 161 CrPC—the Court concluded that no adverse inference was warranted.
Regarding the absence of public witnesses, the Court accepted the explanation that nearby shopkeepers and bystanders declined to participate despite requests. It reasoned that when sincere efforts to procure independent witnesses fail, non-examination does not automatically invalidate the recovery.
Having found the direct police witnesses credible and the forensic report confirming the working condition of the pistols and live nature of the cartridges, the Court upheld the trial court’s findings and rejected both grounds advanced by the appellant.
Holding and Implications
Appeal Dismissed; convictions and sentences affirmed.
The decision leaves the appellant’s five-year term of rigorous imprisonment and ₹5,000 fine under TADA intact, with no separate sentence under the Arms Act. The judgment turns on appraisal of evidence and does not articulate new legal principles, thus its implications are confined to the parties involved.
M.K Mukherjee, J.— The appellant was placed on trial before the Designated Court, New Delhi to answer charges under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’ for short) and Section 25 of the Arms Act, 1959. On conclusion of trial the learned Court recorded an order of conviction against the appellant in respect of both the charges. For the conviction under Section 5 of TADA the appellant was sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs 5000, in default, to suffer rigorous imprisonment for 6 months more but no separate sentence was passed for the other conviction. Hence this appeal.
2. Briefly stated, the prosecution case is that in the evening of 23-4-1991 a police party, while on patrol duty in and around Palam Village, found the appellant standing near the bus stand with a bag in his possession. As his movements aroused suspicion they apprehended him and searched the bag which was found to contain 8 country-made pistols and 31 live cartridges. As the appellant could not give any satisfactory explanation for possession of those arms and ammunition, they were seized under a recovery memo and then packaged and sealed. A first information report was thereafter lodged against the appellant at Dabri Police Station and SI Sube Singh took up investigation of the case. In course of investigation he forwarded the seized arms and ammunition to the Central Forensic Science Laboratory (CFSL) for examination. On completion of investigation and receipt of sanction from the Deputy Commissioner of Police, New Delhi to prosecute the appellant under Section 25 of the Arms Act he submitted charge-sheet against the appellant.
3. The appellant pleaded not guilty to the charges levelled against him and his contention was that he was falsely implicated in the case at the instance of SI Sube Singh.
4. To prove the apprehension of the appellant and recovery of the arms and ammunition from his possession the prosecution relied upon the testimonies of Constable Jagpal Singh (PW 1) and Head Constable Ramesh Kumar (PW 2). Both of them stated that they were members of the police party that was on patrol duty on the date in question. They detailed the manner in which the appellant was apprehended at the bus stand with a bag in his possession and spoke about the recovery of country-made pistols and cartridges from that bag. They also testified that a recovery memo was prepared and signed by them. They next spoke about the packaging and sealing of those arms and ammunition.
5. Constable Bhim Singh (PW 3) testified that on 3-5-1991 he had taken the sealed parcels from the Malkhana of Dabri Police Station to CFSL and delivered them intact. The report of CFSL (Ext. A) shows that all the pistols were in working order and the cartridges were live. Constable Bhim Singh (PW 4) proved the sanction accorded by Deputy Commissioner of Police under Section 39 of the Arms Act which was marked by PW 4.A. Head Constable Khushi Ram (PW 5) who was the Duty Officer of Dabri Police Station on 23-4-1991 proved the FIR Ex. PW 5.A. Constable Jasbir Singh (PW 6) proved that the arms and ammunition seized were deposited in the Malkhana of the police station and were forwarded to the CFSL from there through Constable Bhim Singh (PW 3).
6. Having carefully gone through the evidence of PW 1 and PW 2, two of the members of the raiding party, we do not find any reason to disbelieve them, more particularly when nothing could be elicited in the cross-examination to discredit them. On the contrary, their evidence is consistent and corroborates each other.
7. The learned counsel appearing for the appellant first contended that non-examination of SI Sube Singh who investigated into the case, raised a great suspicion about the truth and bona fides of the prosecution story. We do not find any substance in this contention. It appears that in spite of best efforts the prosecution could not produce him and therefore no adverse presumption can be drawn against the prosecution for his non-examination. That apart, nothing was elicited in cross-examination of any of the prosecution witnesses wherefrom it could be said that the investigating officer's production was essentially required to give an opportunity to the defence to cross-examine him with reference to statements recorded by him under Section 161 CrPC or any steps taken by him during investigation. His non-examination, therefore, did not in any way affect the prosecution case nor prejudice the appellant in his defence.
8. The only other contention raised by the appellant was that no public witness was examined though the alleged recovery took place at a bus stand in the evening. It appears from the evidence of both PWs 1 and 2 that in spite of requests made none of the shopkeepers and the people present there were willing to join the search party. As we do not find any reason to disbelieve the evidence of PWs 1 and 2 that their sincere attempt to secure public witness failed, no adverse inference for such non-examination can, therefore, be drawn.
9. On the conclusions as above we dismiss the appeal.
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