Judgment

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.

2. 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 appel