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PETITIONER: JASPAL SING

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       24/09/1998

BENCH: G.T.NANAVATI, S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT: Hon’ble Mr. Justice G.T.Nanavati Hon’ble Mr. Justice S.P.Kurdukar Ujjagar Singh, Sr.Adv., G.C.Sharma, Ms.Naresh Bakshi, Advs, with him for the appellant R.S.Sodhi, Kuldip Singh and Rupesh  Kumar,  Advs.  for  the Respondent The following Judgment of the Court was delivered: Nanavati. J. The appellant has been convicted under  Section  25 of  the  Arms  Act  and Section 5 of the TADA Act as he was found in possession of one DBBL gun.  12 bore and five live cartridges on 17/18.3.1992.  The trial court  relying  upon the  evidence  of  ASI - Balbir Singh and P.W.4 - Man Singh who were the members of the Police party held that  it  was proved  by  the  prosecution  that  the  appellant  was  in possession of those articles.  The trial court further held that as the gun was found loaded, it can be  presumed  that it was in working order.  Taking this view it convicted the appellant, as stated above. Admittedly,  no evidence was led by the prosecution to prove that the gun was in working condition and that the cartridges  which  were  found  from  the  person  of   the appellant were live cartridges.  Neither ASI - Balbir Singh had stated so nor any report from an expert was obtained to establish  that  the  gun was in working condition and that five cartridges were live.  What was found in the gun  were two  empties and not live cartridges and, therefore, it was not proper to presume that it was in working condition.  In absence of any evidence to that effect, the  conviction  of the appellant under both these aforesaid Sections cannot be upheld.   We,  therefore,  allow this appeal, set aside the judgment  and  order  passed  by  the   Additional   Judge, Designated  Court,  Sangrur,  in  Special Sessions Case No. 55/92 and acquit the  appellant.    He  is  ordered  to  be released  forthwith if his presence is not required in jail in connection with some other case.