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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: JAGGA SINGH

DATE OF JUDGMENT:       06/08/1998

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati. J.      This appeal  is directed against the judgment and order passed by the Designated Court, Sangrur in Sessions Case No. 55 of 1993.      The respondent  was tried  for the  offences punishable under Section  25 of  the Arms  Act and  Section  5  of  the Terrorists and  Disruptive Activities (Prevention) Act, 1987 (hereinafter referred  to as  "the TADA  Act").  The  charge against him  was that he was found in unlawful possession of one. 12  DBBL Gun  and four  live cartridges on 15.5.1992 in village Khillan,  which has been declared as a notified area under the  TADA Act.  The designated  Court  held  that  the evidence of PW.1 H.C. Baldev Singh and PW.3 Constable Basant Singh was sufficient to establish that the respondent was in unlawful possession  of Gun  and four  live cartridges.  The Designated Court,  however, did  not scrutinise the evidence further and  thought it fit to acquit the respondent only on the ground  that as no sanction under Section 39 of the Arms Act was obtained to initiate prosecution against the accused under Section  25 of  the Arms Act and Section 5 of the TADA Act, has,  "the effect  of enhancing  penalty as  prescribed under the  Arms Act", the accused cannot be tried for either of the offences.      Aggrieved by  the order  of acquittal,  the  State  has filed this  appeal. We  are of the opinion that Mr. Sodhi is right in  contending that  the view  taken by the Designated Court that in absence of sanction for prosecuting an accused under the  Arms Act,  the cannot  be prosecuted  even  under Section 5 of the TADA Act, is wrong. But it is not necessary to allow  this appeal and remand the case to the  Designated Court as  the  respondent  deserves  to  be  acquitted  even otherwise on merits. Though the evidence of PW.1 H.C. Baldev Singh and  PW.3 Basant Singh establishes that the respondent was found  in possession  of one.  12 bore DBBL Gun and four live cartridges,  there is  no satisfactory evidence to show that  the   said  Gun  and  the  cartridges  were  sent  for examination by  the Central  Forensic scientific Laboratory. There is  no report  from the forensic Scientific Laboratory nor any  other evidence  to prove that the said gun was in a

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working condition  or that  the said  cartridges  were  live cartridges. An  entry made  in  the  Malkhana  register  was relied upon by the prosecution. It does not mention that Gun bearing No.  14119-88  was  sent  to  the  Central  Forensic Laboratory nor  does  it  contain  any  description  of  the cartridges.      Therefore, in  absence of any evidence to show that the respondent is  found in  possession of one. 12 bore DBBL Gun in  a  working  condition  and  four  live  cartridges,  the respondent cannot  be convicted  under Section 5 of the TADA Act. This appeal is dismissed.