Order
1. This appeal is directed by the appellant Amarjit Singh @ Babbu canvassing the correctness of the judgment made in Sessions Case No. 307 of 1990 on the file of the Additional Judge, Designated Court, Amritsar, convicting him under Section 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 and sentencing him to undergo imprisonment for a period of 5 years and also to pay a fine of Rs 1000 in default to suffer RI for three months.
2. According to the prosecution on 25-6-1990 PWs 2 and 3 were on duty and at about 5.00 a.m they arrested the appellant and found him in possession of a revolver Ex. P-1. On examination of the revolver, cartridges Ex. P-2 and Ex. P-3 were found. The Roznamcha was prepared by PW 3 for the recovery of the weapon and cartridges which was attested by PWs 2 and 3.
3. The appellant was prosecuted under Section 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987. The prosecution examined four witnesses of whom PW 1 is a clerk in the office of the District Magistrate who speaks about the sanction. PWs 2 and 3, the Head Constable and Sub-Inspector speak about the arrest of the appellant as well as the recovery of Exs. P-1 to 3. PW 4 is an armour expert who speaks to the fact that on examination of the weapon, he found that the weapon was in working condition. Accepting the evidence of these witnesses and also the recovery of the weapon, the learned Judge found him guilty and sentenced him as aforementioned. Hence the present appeal.
4. Mr Ravinder Chadha appearing as amicus curiae after very carefully going through the records and the judgment contended that the evidence adduced by the prosecution is very meagre and no conviction can be sustained on such evidence as it suffers from insurmountable infirmities.
5. According to the learned counsel though this weapon was seized on 27-6-1990 but was tested by PW 4 only on 28-8-1990 i.e after about 2 months and there is absolutely no explanation for the delay in testing the weapon. The second infirmity pointed out by the learned counsel is that PW 3 after seizing the weapon never sealed the weapon at the spot. The third infirmity pointed out is that the Sub-Inspector of Police instead of sealing the weapon handed over it to one Chhabra Chunilal who had not been examined and who according to PW 3 used to visit the police station. The fourth infirmity is that Exs. P-2 and P-3 admittedly have not been sent to the armoury.
6. After going through the evidence and the records, we see much force in the submissions made by the learned counsel. Leave apart the recovery, the evidence is not inspiring confidence that the material objects Exs P-1 to 3 were recovered in the manner as spoken to by the PWs.
7. The entire prosecution case, thus, is clouded with number of infirmities which compel this Court not to accept such an unworthy evidence. These infirmities have been brushed aside by the Designated Court by observing that since the model number of the revolver was noted down, the non-sealing of the revolver or the handing over of the same to some other police official or a private person, who has not been examined are of no consequence. We are unable to agree and subscribe to this view in a case of this nature. The non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. The report of PW 4 that the weapon is capable of being fired is insignificant since it cannot be said with certainty as to what was the condition of the weapon at the time of the recovery, apart from the evidence of PW 4 that he did not test-fire the revolver.
8. For all the observations made above, we hold that the prosecution has not established its case beyond all reasonable doubt. On the other hand the circumstances appearing in this case militate the evidentiary value of the witnesses. In the result, the conviction and sentence are set aside, the appeal is allowed and the appellant is directed to be set at liberty, if not wanted for any other cause. We place on record our appreciation for the services rendered by Mr Ravinder Chadha amicus curiae.