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PETITIONER: JASPAL SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       24/09/1998

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

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T 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 trail 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 cartridge 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  Section  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.