JUDGMENT

 This appeal is directed against the order of conviction of the appellant dated November 6, 1992 by the Designated Court, Rohtak at Jind, under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, hereinafter referred to as TADA Act read with section 25 of the Arms Act and consequential order of sentence for a period of five years with a fine of Rs. 500/- in default further imprisonment for six months. The prosecution case in short is that on 2-4-1989, Shri Sumer Singh, Inspector along with the Police Officials and Ram Kishan and Subhash were present in the area of village Gurthali near Canal Bank in connection with investigation of a case (State v. Surinder under Section 25 of the Arms Act and Section 5 of TADA). At that time, the accused Sukhpal was apprehended by the said Police party. The said Sukhpal was carrying one rifle of .315 bore and he was also having three belts each containing 25 cartridges in his waist. A magazine of the rifle containing seven live cartridges of .315 bore was also with him. The accused was also holding one bag of rexin in which two packets each containing 10 cartridges of the said rifle were also recovered. In this way 109 live cartridges were recovered from the possession of the accused apart from the said rifle. The accused could not produce any permit or licence for keeping the said arm and ammunition. The accused was put under arrest and the rifle and the cartridges recovered from his possession were sealed in separate parcels with the seal of SSM and the same were handed over to PW 6 Subhash. The said rifle was got tested by an armourer. A challan under Section 25 of the Arms Act and also under Section 5 of the TADA Act was framed against the accused. PW 1. Sh. Banwari Lal, ASI, PW2 Surjit Singh, Armourer, PW 3 Shri Bram Sarup Ahmad, PW 4 Sumer Singh, Inspector, PW 5 Ram Kishan, PW 6 Subhash and PW 7 Birbhan Kanungo were examined by the prosecution in support of the prosecution case. PW 2 Surjit Singh armourer was examined for the purpose of establishing that the rifle found in possession of the accused was in a firing condition. The said armourer had deposed that he had examined the rifle and found that the said rifle was in firing condition. The prosecution case has been proved by the evidences of the said police personnel and also two civilian witnesses namely PW 5 Ram Kishan and PW 6 Subhash. The said two civilians have deposed that in connection with a decoity case they had been to the police chowki on the said date and they were asked to wait as they were given to understand that some clue about the dacoity was available. At about 2.00 a.m.in the midnight, while they were sleeping in the police chowki compound they were aroused and taken in a police vehicle and they witnessed the arrest of the accused along with the said rifle and the cartridges. The learned Designated Judge considering the said evidences has come to the finding that the case against the accused was established. He has accordingly convicted the accused under Section 5 of the TADA Act read with Section 25 of the Arms Act and has passed the aforesaid sentence of five years imprisonment and a fine of Rs. 500/-

2. Mr. Malhotra learned counsel appearing for the appellant has contended before us that in the recent Constitution Bench judgment rendered in the case of Sanjay Dutt v. State through C.B.I., Bombay reported in 1994 (3) Scale 1004, this Court has indicated that the presumption under Section 5 of TADA Act is a rebuttable presumption and the accused is entitled to rebut such presumption in a trial. Mr. Malholtra has submitted that unfortunately the said decision was not rendered at the time when the trial had taken place and the accused appellant was not aware that he had a right to rebut the presumption under Section 5 of the TADA Act. He has submitted that it was bounden duty of the Court to apprise the accused about such right of rebuttal so that he could lead evidence by way of rebuttal