AZAD SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal is directed against conviction of the appellant under Section 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (in brief 'tada'). He has been sentenced to undergo imprisonment for 5 years and to pay fine of Rs. 200. 00 and in default to undergo further imprisonment for 3 months.

(2.) The prosecution case was that on 22/1/1990 when Inspector Mohinder singh, Public Witness 4, along with Sub-Inspector, SHO Sonepat and other police officials were present on the bridge of canal minor on the road going from the side of village Rattan Garh to the side of Village Bhatgaon, the appellant riding on the pillion seat of the motorcycle which was being driven by one Shamsher was seen coming at 12 noon from the side of Rattan Garh. On seeing the police party they tried to turn back the motorcycle whereupon the Inspector and other members of the police party apprehended the appellant and recovered one pistol loaded with cartridges. Since the appellant had no licence or permit for pistol and cartridges, he was arrested and he was prosecuted under Section 5 of the a TADA. We need not discuss the evidence in detail as it has been argued on behalf of the appellant that the prosecution failed to prove that arm and ammunition recovered from the appellant was in working condition so as to sustain the conviction under Section 5 of the TADA. The learned counsel urged that the evidence of Bhim Singh, Public Witness 1, the armourer, does not show that he fired any shot from the pistol, therefore, the material was insufficient to hold that it was an arm which was in working condition. Consequently, no conviction could be recorded under Section 5 of the TADA.

(3.) We have heard the learned counsel for the State of Haryana. She vehemently argued that the testimony of the armourer could not be discarded as he has stated that the pistol was in working condition. We are afraid the argument cannot be accepted. Mere saying that the arm was in working condition was not sufficient. We may agree with the learned counsel that firing was not necessary but, in our opinion, it was incumbent on the prosecution to prove that the witness at least found that the pistol was operating by examining the trigger etc. The vital statement is missing. Since the prosecution has failed to prove that the arm recovered from the appellant was in working condition, the conviction against the appellant under Section 5 of the TADA cannot be maintained.