V.M. Jain, J.
1. This is an appeal against the judgment and order dated 4.8.1999, passed by the Additional Sessions Judge, Gurdaspur, convicting the accused appellant Major Singh under Section 25 of the Arms Act as also under Section 4 of the Explosive Substances Act and sentencing him to undergo R1 for 5 years and to pay fine of Rs. 2000/- and in default of payment of fine to further undergo R1 for 2 months under Section 25 of the Arms Act and also sentencing him to undergo RI for 4 years and to pay fine of Rs. 2000/- and in default of payment of fine to further undergo R1 for 2 months under Section 4 of the Explosive Substances Act and further directing both the sentences to run concurrently.
2. The facts in brief are that on 8.7.1996, Inspector Gian Singh of CIA Staff Batala sent Exhibit PO to the Police Station, to the effect that he alongwith other police officials under the supervision of Baldev Singh, DSP (D) was busy in connection with investigation of case bearing FIR No. 56 dated 8.7.1996 under Sections 4/5 of the Explosive Substances Act of PS Sri Hargobindpur against Gurmukh Singh and as per the information of the informant accused appellant Major Singh was joined in (he investigation of the said case and during interrogation accused Major Singh made a disclosure statement to the effect that he had kept explosive substances in a gunny bag weighing 20 kilograms besides 525 detonator fuses and 100 empty detonators, wrapped in a polythene envelope and about 50 feet long cordless wire, in a bunker constructed under the tank of his tubewell and besides that he had also kept concealed one LMG including 4 magazines, 60 rounds 3.3. bore, 1 stengun including magazine and 10 rounds of 9 mm, one rifle, .315 bore of which the butt and barrel were cut including the magazine and 25 rounds of .315 bore, wrapped in a gunny bag and had been kept concealed in the land after digging a pit and that only he knew about the same and could get the said arms and ammunition and explosive substances recovered after pointing out the place.It was further alleged in the said ruqa that the said disclosure statement was duly recorded and the same was signed by accused Major Singh and was attested by the witnesses. It was alleged that thereafter accused Major Singh while in police custody led police party to the disclosed place and got recovered a gunny bag containing 20 kilogram's of explosive substance, besides 525 detonator fuses, and 100 empty detonates and approximately 50 feet long cordless wire, wrapped in a polythene bag, from the bunker underneath the tank of his tubewell. The said recovered articles were duly sealed after taking out the sample of explosive substance from the gunny bag and sealing the same. Thereafter, accused Major Singh led the police party to other disclosed place and got recovered various arms and ammunition referred to above and the same were taken into possession after the same were duly sealed. It was also alleged that the seal after use was handed over to SI SHO Hardev Singh. It was further alleged that by keeping aforesaid substances in his possession the accused appellant had committed offence under Section 25 of the Arms Act and Sections 4/5 of the Explosive Act. On the basis of the aforesaid ruqa, Exhibit PO, formal FIR Exhibit PO/1 was recorded in PS Sri Hargobindpuron the same day i.e. 8.7.1996. Accused Major Singh was formally arrested in this case and was brought to ihe police station where he was lodged while ihe case property was deposited with ihe MHC.
3. After completion of the investigation, the challan was submitted in the court against accused Major Singh. The learned Magistrate committed the case to the Court of Session as the offence under Sections 4/5 of the Explosive Substances Acl was exclusively triable by the Sessions Court. The learned Additional Sessions Judge, Gurdaspur, initially framed the charges under Section 25 of (he Arms Act and under Section 4 of the Explosive Act against accused appellant Major Singh on 7.8.1997, but later on the charges were amended and on 24.7.1998, accused Major Singh was charged under Section 25 of the Arms Acl and under Section 4 of the Explosive Substances Act. Accused Major Singh pleaded not guilty to the charges and claimed trial.
4. In order to prove its case, the prosecution examined PW 1 HC Sham Lal, PW2 HC Gur-charan Singh, PW 3 Tarlok Singh, Reader, Distt. Magistrate, PW 4 MHC Sardool Singh, PW 5 Constable Sukhwinder Singh, PW 6 SI Hardev Singh and PW 7 Inspector Gian Singh and thereafter the prosecution evidence was closed. Thereafter, the statement of the accused under Section 313 Cr.PC was recorded in which he stated that he had been falsely implicated in this case. In his defence, accused Major Singh examined DW 1 Jaswant Singh from the Punjab State Electricity Board and thereafter closed the defence evidence.
5. The learned Additional Sessions Judge, after hearing both sides and after perusing the record, convicled accused Major Singh under Section 25 of the Arms Act and under Section 4 of the Explosive Substances Act, vide judgment dated 4.8.1999 and sentenced him to undergo various sentences referred to above, vide order dated 4.8.1999. Aggrieved against this judgment and order of the learned Additional Sessions Judge, accused Major Singh has filed the present appeal in this Court.
6. I have heard the learned counsel for the parties and have gone through the record carefully.
7. In this case, sanction to prosecute under Section 25 of the Arms Act and under Seclions 4/5 of the Explosive Substances Act had been given by the Distt. Magistrate, Gurdaspur, vide sanction orders Exhibit PD and PC respectively, exercising the power under Section 39 of the Arms Act and under Section 7 of the Explosive Substances Act. In the Sanction Order Exhibit PC, the Distt. Magistrate, Gurdaspur had specifically stated that in pursuance of the notification No. SO/1350 dated 14.5.1977 from Ministry of Home Affairs, New Delhi, he had granted the said sanction under Section 7 of the Explosive Substances Act. In fact, by virtue of the aforesaid notification dated 14.5.1977, published in the Government of India Gazelle daled 14.5.1977, the President .of India with the consent of various State Governments including Punjab and Haryana, had entrusted to all the Distt. Magistrates of those States the function of Central Government under Section 7 of the Explosive Substances Act, 1908. Under these circumstances, the Distt. Magistrate, Gurdaspur had the power to grant the sanction under Section 7 of the said Act.
8. Learned counsel for the accused appellant submitted before me that the prosecution had failed to prove that the accused petitioner was found in possession of the alleged recovered articles. It was submitted that the accused appellant had no tubewell connection and as such it could not be said that the articles were recovered from ihe bunker under the tank of the tubewell of the accused appellant. It was submitted that DW-1 Jaswant Singh, from the Punjab State Electricity Board, had categorically slated thai no tubewell connection was released in the name of Major Singh.
9. However, I find no force in this judgment of the learned counsel for the appellant. Merely because DW-1 Jaswant Singh had staled that accused appellant had no tubewell connection in Man Buchian, it could not be said that the accused appellant Major Singh was not found in possession of various arms, ammunition and explosive substance etc. This is especially so, when the said recovery had taken place in pursuance of the disclosure statement made by the accused appellant and he had led the police party to the disclosed placed and had got the same recovered from there.
10. It was then submitted before me that in this case, the prosecution had failed to examine any independent witness. On the other hand, only official witnesses have been examined. These statements are discrepant and not reliable.
11. However, I find no force in this submission as well of the learned counsel for the accused appellant. In order to prove the prosecution case, the prosecution had examined PW 6 Sl Hardev Singh and PW 7 Inspector Gian Singh. Both of them categorically stated that they were present at the Dera of Gurmukh Singh in connection with the investigation of the case against Gurmukh Singh, when accused Major Singh had made the disclosure statement about having concealed the explosive substances and arms and ammunition at the disclosed places. They further stated that after recording the disclosure statement, accused Major Singh got recovered the various articles of explosive substances and arms and ammunition from the disclosed placed and the same were taken into possession. PW-6 SI Hardev Singh during cross-examination denied that no recovery had taken place at the instance of the accused or that false recovery was planted upon the accused by Inspector Gian Singh. He deposed that no independent witness from Village Mari Buchian was joined, as a public witness was already with the police. He denied the suggestion that Avtar Singh, Sarpanch (PW) was not joined with the police party or that his signatures were obtained at police station. PW-7 Inspector Gian Singh also denied during cross-examination that no recovery was effected from the accused appellant or that recovery was planted upon the accused. From the statements of these two witnesses, it could not be said that these statements are discrepant in any manner or that the statements are not worthy o'f reliance. It has come in the evidence that Avtar Singh, Sarpanch was already with the police party and as such there was noneed to join any other witness from the public. Merely because Avtar Singh Sarpanch was not examined by the prosecution and was given up as having been won over on the police application, in my opinion, it could not be said that the prosecution case must fail on that account. This is especially so when the evidence of PW-6 SI Hardev Singh and PW-7 Inspector Gian Singh is cogent, convincing and reliable.
12. It was then submitted before me by the learned counsel for the appellant that PW I Head Constable Sham Lal, who had given his report about the recovered articles being explosive substances, besides arms and ammunition, was not an expert on explosive substances and as such the examination of this witness would not be sufficient to hold that the accused appellant was in possession of explosive substances.
13. I find force in this submission of the learned counsel for the appellant. Accused appellant Major Singh was charged under Section 4 of the Explosive Substances Act, for being found in possession of 525 detonator fuses, 100 empty detonators, 50 feet cordless wire and 20 kilograms of explosive substance. With regard to 20 kilograms of explosive substance, allegedly recovered at the instance of accused appellant Major Singh, it has come in (he statements of PW-6 SI Hardev Singh and PW-7 Inspector Gian Singh that after recovery of 20 kilograms of explosive from the disclosed place, 250 grams of explosive was separated from the bulk as sample and thereafter the sample and the remaining explosives were separately sealed. The bulk of the explosive recovered at the instance of the accused appellant was pro-duced in the court at the time of evidence. However, there is absolutely nothing on the record to show as to what was the opinion of the expert, in respect of the sample of explosive, which was taken out of the bulk at the time of recovery and was sent to the Forensic Science Laboratory, for opinion, as per the affidavits, Exhibits PE and PF of PW4 MHC Sardul Singh and PW5 Constable Sukhwinder Singh, respectively. Neither any report has been produced in evidence, with regard to the sample of explosive, nor any witness has been examined to depose that the said sample was of explosives, covered by the Explosive Substances Act. In the absence of any material on record, in this regard, it could not be said that Ihe 20 kilograms of substance, allegedly recovered at the instance of the accused appellant, was explosive substance, covered under the Explosive Substances Act.
14. So far as 525 detonator fuses, 100 empty detonators and 50 feet cordless wire, is concerned, the prosecution examined PW-1 HC Sham Lal to prove the report Exhibit PH/1 in this regard. As per the said report 525 detonator fuses and 50 feet long cordless wire were in working condition whereas 100 detonators were empty. In the report Exhibit PH/1, HC Sham Lal had stated that he had passed Armoury and Explosive Course from EME Centre, Bhopal. During cross examination, P W-1 HC Sham Lal admitted that he did not possess any certificate to check the explosives. However, he denied the suggestion that he had not passed any course for checking ammunition or that he possessed the certificate only with regard to the arms. Head Constable Sham Lal was directed to produce the certificate of Arms and Ammunition course, after lunch. In pursuance thereof, HC Sham Lal produced photocopy of a certificate issued by 3 EME Centre, Bhopal dated 11.12.1976 to certify that Constable Sham Lal had attended Police Armourer Basic Course from 1.12.1975 to 11.12.1976. The subjects which were included in the said course were given on the reverse of the said certificate, which are all in respect of arms and ammunition and there is no reference to any subject concerning explosive substances which Head Constable Sham Lal may have studied during the said Police Armourer Basic Course, during his one year training in the EME Centre at Bhopal. In fact, HC Sham Lal had brought the original certificate of training of arms and ammunition and had produced the phbtocopy thereof. Thus, in view of the admission made by PW-1 HC Sham Lal that he did not possess any certificate to check the explosives and from a perusal of the photocopy of the certificate produced by HC Sham Lal, it would be clear that HC Sham Lal possessed this certificate only in respect of arms and ammunition and not in respect of explosive substances. Tn this view of the matter, the assertion made by PW-1 HC Sham Lal, in the endorsement Exhibit PH/1; that he had possessed the course for explosive substances, would be of no consequence.
15. Statements of PW-6 SI Hardev Singh and PW-7 Inspector Gian Singh that the articles got recovered by the accused appellant Major Singh, in pursuance of the disclosure statement were explosive substances, in my opinion, would be neither here nor there, as even these two police officials had no training in explosive substances. PW-6 SI Hardev Singh had stated during cross examination that he had taken the training in arms and ammunition during his service tenure. PW-7 Inspector Gian Singh had stated during the examination- in-chief that he had got training in arms and ammunition in PTC Phillaur and PAP Jalandhar. Both the witnesses have nowhere stated that the other articles recovered were explosive substances, as defined under the Explosive Substances Act.
16. Even otherwise, prima facie, the detonator fuses and cordless wire, allegedly recovered in pursuance of the disclosure statement made by accused appellant Major Singh, could not be termed as explosive substances, in the absence of any expert opinion. In the disclosure, statement, Exhibit PJ, recovery memo Exhibit PK, police request Exhibit PH and report of Head Constable Sham Lal, Exhibit PH/1, reference has been made to 525 detonator fuses. Mere recovery of detonator fuses, in my opinion, would not bring the case of the accused appellant under the provisions of Explosive Substances Act. Similar is the position with regard to 50 feet 'cordless wire'. So far as 100 empty detonators are concerned, the same would be neither here nor there. In any case, as referred to above, there is no expert evidence on record to show that recovered articles i.e. 525 detonator fuses, 100 empty detonators and 50 feet cordless wire would bring the case within the purview of Explosive Substances Act. Furthermore, as referred to above, the recovery of 20 kilograms of alleged explosives, wouldalso not bring the case within the purview of Explosive Substances Act, as nothing has come on the record to show that the sample of explosives was found by any expert to be explosive substance, covered under the provisions of Explosive Substances Act.
17. In view of the above, in my opinion, the learned trial Court erred in law in holding the accused appellant Major Singh, guilty under Section 4 of the Explosive Substances Act and in sentencing him thereunder.
18. So far as the arms and ammunition, referred to in recovery memo Exhibit PL, are concerned, I have already discussed above that the recovery in pursuance of the disclosure statement Exhibit PJ stands fully proved on the record. Head Constable Sham Lal, in his report Exhibit PG/1, had categorically stated that the various ammunition produced before him were in working order. HC Sham Lal had appeared in witness box as PW1 and had proved the said report given by him on police request Exhibit PG. The prosecution had also examined PW 2 HC Gurcharan Singh, who had proved his report Exhibit PB, which was on the back of the police application Exhibit PA. This was in respect of various weapons which were recovered in pursuance of the disclosure statement made by the Major Singh and were taken into possession vide recovery memo Exhibit PL. Head Constable Gurcharan Singh, PW2 appeared in the witness box and categorically stated that various fire arms were produced before him and after testing the same he gave his report Exhibit PB and that all the three weapons were in working condition. He stated that he had taken training from 4 EME Centre, Kamti. He further stated that various weapons which were brought in court were in working order. During cross-examination, he stated that he had got the certificate for the test of arms and ammunition only. He stated that he had done the course from 4 EME Centre, Kamti, Maharashtra. The sanction accorded by the Distt. Magistrate, Exhibit PD, under Section 39 of the Indian Arms Act, was proved by PW 3 Tarlok Singh, Reader.
19. In view of the above discussion, in my opinion, no fault could be found with the findings of the learned Ad '.lional Sessions Judge, holding the accused appellant guilty under Section 25 of the Arms Act. Accordingly, I uphold the conviction of the accused appellant under Section 25 of the Arms Act.
20. It was then submitted before me by the learned counsel for the appellant that accused appellant has already undergone more than t year and 9 months after his conviction and that he had also undergone some period during trial and in this manner he has undergone almost two years. It has been submitted that the sentence awarded to the accused appellant may be reduced to the period already undergone by him.
21. After hearing the counsel for the parties and after perusing the record, in my opinion, the ends of justice would be fully met in case the sentence awarded to the accused appellant under Section 25 of the Arms is reduced from 5 years RI to RI for 3 years. Accordingly, the sentence imposed upon the accused appellant under Section 25 of the Arms Act is reduced from 5 years RI to 3 years RJ. The sentence of fine under the aforesaid offence would remain unchanged.
22. In view of the above, while setting aside the conviction of the accused appellant under Section 4 of the Explosive Substances Act, his conviction under Section 25 of the Arms Act is upheld. The sentence awarded to the accused appellant under Section 25 of the Arms Act is reduced from 5 years RI to 3 years RI, while the sentence of fine awarded under the said section shall remain the same. The appeal is thus partly dismissed and partly allowed, in the above terms.
23. Appeal partly allowed.