ORDER :

Dr. A.S. Anand, J. - The appellant has been convicted for an offence under Section 25 of the Arms Act, 1959 read with Section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter TADA) and sentenced to suffer five years? rigorous imprisonment and to pay a fine of Rs 1000 and in default to undergo RI for six months. He has filed this statutory appeal challenging his conviction and sentence.

2. According to the prosecution case, Constable Bir Singh, Constable Har Pal along with Head Constable Jagdish Parshad were present near Budhia-Nala at about 8.30 p.m. on 8-11-1991 when they saw the appellant coming from the side of the bridge, who on seeing the police party, tried to slip away. On suspicion, he was chased by the police officials and nabbed. On search of the appellant by Head Constable Jagdish Parshad, he was found to be carrying a country-made pistol besides three cartridges. The appellant did not have any licence for the arms and ammunition. PW 1 prepared a sketch of the pistol Ex. PA and took it into possession vide recovery memo Ex. PB. Similarly, the cartridges were also taken into possession. After seizure of the arms and ammunition, ruqa, Ex. PC was sent to the police station on the basis of which formal FIR Ex. PC/1 was recorded by ASI Mahabir Singh.

3. There is no material on the record to show that the seized articles were kept in the malkhana by PW 1 or PW 2 for safe custody. Neither the investigating officer nor PW 2 have stated that they had kept the weapon in the malkhana after properly securing and sealing the same. Neither the Muharir malkhana was examined nor even his affidavit filed by the prosecution to testify to the safe custody of the recovered weapon. The report of the Armourer PW 3 Head Constable Charan Dass, who examined the pistol and the cartridges on 28-11-1991, nearly three weeks after the seizure of the pistol and the cartridges, admitted in his cross-examination that when the case-property was received by him, the same was not in any sealed parcel and that it was "in loose condition". Thus, from the evidence on the record, it cannot be said with any amount of certainty that the pistol allegedly recovered from the appellant by the police officials PW 1 and PW 2 and the pistol examined by the Armourer PW 3 was the same. Since, the pistol had been received by the Armourer in a loose condition, the possibility that the weapon might have been tampered while in the custody of the police cannot be ruled out. That being the position, it would not be safe to uphold the conviction of the appellant for the offences under Section 25 of the Arms Act read with Section 5 of TADA.

4. We, therefore, allow this appeal and set aside the conviction and sentence of the appellant. The appellant shall be released from custody forthwith, if not required in any other case.

Appeal allowed.