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PETITIONER: MOHD. ZAHID

       Vs.

RESPONDENT: THE GOVT. OF NCT OF DELHI

DATE OF JUDGMENT:       08/05/1998

BENCH: M.K. MUKHERJEE, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE,J.      This appeal  under Section  19 of  the   Terrorist  and Disruptive Activities  (Prevention) Act,  1987  (‘TADA’  for short) is directed against the judgment and order dated July 22, 1997  of the  Designated Court  II, Delhi convicting the appellant for  an  offence  under  Section  5  of  TADA  and sentencing him  to suffer  rigorous imprisonment for 5 years and to  pay a fine of Rs. 1,000/-, and in default of payment of fine to undergo rigorous imprisonment for  2 months more. 2.   According to  the prosecution case, in the afternoon of March 8,  1990, Sub Inspector Gopi Chand (P.W.6) of I.S.B.T. (Inter-State Bus  Terminus) police post along with Assistant Sub-Inspector  Chander   Bhan  (P.W.5)   and  other   police personnel was  on patrolling  duty  at  the  inner  gate  of I.S.B.T. When  they were  checking the luggage of passengers they saw  the appellant  alighting from  a bus  with a rexin bag. Seeing  them he  tried  to  move  away  briskly.  P.W.6 apprehended him  on suspicion  and found,  on search  of his bag, 3  country-made pistols  and 1  2 cartridges. He seized those articles  under a memo and put them in separate sealed packets. Along  with those articles he forwarded a report to the Kashmere  Gate Police Station for registration of a case against the  appellant and took up investigation. The seized articles were thereafter sent for examination by the Central Forensic Science Laboratory, which reported that the pistols were in  working order  and the  cartridges were  alive.  On receipt of  that report P.W.6 filed charge-sheet against the appellant  with   the  requisite   sanction  of  the  Deputy Commissioner of  Police, North  District,  New  Delhi  under Section 39 of the Arms Act, 1959. 3.   The  appellant   pleaded  not  guilty  to  the  charges levelled against  him; and  his specific defence was that in the evening  of March  6, 1990  when he got down at I.S.B.T. from the  bus he  boarded at  Meerut the  police apprehended him, and  after detaining  him for  three days in the police post foisted  a false  case against him. He asserted that no country-made fire  arms nor  cartridges were  recovered from him. 4.   In support  of its  case  the  prosecution  examined  7

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witnesses of  whom P.Ws.  5 and  6 were the witnesses to the recovery and  seizure of  the fire arms and ammunitions. The appellant, however,  did not  examine  any  witness  in  his defence but  produced before  the Court  certified copy of a telegram sent  by his  father to  the higher  authorities on March 8, 1990. wherein he complained that his son Zahid (the appellant) was  arrested by  the Police  Post,  I.S.B.T.  on March 6,  1990 and an application that he (the father) moved before a  Metropolitan Magistrate, New Delhi on the same day making identical complaint. 5.   The Designated  Court held  that the evidence of P.Ws 5 and  6  was  reliable  and  could  be  made  the  basis  for conviction, notwithstanding  the fact  that  no  independent witness was  examined to  corroborate their  evidence as the explanation offered by P.Ws 5 and 6 that none of the members of the public present at the bus terminus agreed to join the search was  reasonable. In disbelieving the case made out by the appellant  the Designated  Court observed that if really he was  arrested by  the police  on March   6,  1990 it  was expected of the father of the appellant to send the telegram on that date itself and not on March 8, 1990 at 5.00 P.M. as the telegram  Indicates. According  to the Designated Court, since the  appellant was  apprehended by  the police at 5.30 P.M. on  March 8,  1990 it  was very  likely that  the  said telegram was  sent by  his father  immediately a  f ter  his apprehension, to make out a defence. 6.   Though, apparently,  there is no reason as to why P.Ws. 5 and 6 would implicate the appellant falsely, a closer look into the  materials brought on record clearly indicated that it is  the defence version which is true and not that of the prosecution, as  given out  by the above two witnesses. From the application  that Kadir  Ahmad, father of the appellant, filed before the Metropolitan Magistrate, IV Court, Delhi on March 8,  1990 we  find that his allegation therein was that his son  was arrested  by some  officers of  I.S.B.T. police post of Kashmere Gate Police Station, Delhi on March 6, 1990 at or  about 7.00  P.M. and  since  then  he  was  in  their custody. His further allegation was that even though his son was arrested  on that  day he  was not produced in any Court till then,  i.e. March  8, 1990. Accordingly, he prayed that his son  be immediately  released from  custody  or  in  the alternative be  produced in  Court. On  that application the Magistrate passed  an  order  directing  the  Station  House Officer to  report by the following day, i.e. March 9, 1990. It further  appears that  on that very day, (March 8, 1990), the Station  House Officer  of Kashmere  Gate Police Station passed on  the said  direction of the Magistrate to the Head Constable of  I.S.B.T. police post. Though the appellant did not examine  his father  or any  other witness  to prove  at which hour  of the  day the  above application was filed and moved, it can be safely presumed that if was filed and order of the  Magistrate obtained  thereon,  during  Court  hours, which  ended   at  5.00   P.M.  Since,   according  to   the prosecution, the  appellant was  arrested at  5.30 P.M.  the above circumstance  undoubtedly makes  the  defence  version probable. 7.   To confirm  whether we would be justified in basing out conclusion on  the above  circumstance, we  called  for  the Daily Diary  Book of the police post containing entry No. 33 dated March  8, 1990,  a copy  of  which  (Ext.  PW4/A)  was exhibited by  Head Constable  Balbir Singh  (P.W.4) to prove that the  patrolling party left the police post at 5.00 P.M. On a careful look of the original entry we however find that the time  at which  the party left, stands interpolated; and even by naked eyes it can be seen that the time of departure

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of the  party which was earlier shown as 6 P.M., WAS CHANGED TO 5  P.M.. We  further find  that to  keep the  sequence of entries in  order, similar  interpolations had  been made in the earlier  two entires  : while  entry No.  31  which  was initially  shown   to  have  been  made  at  5.30  P.M.  was subsequently changed  to 4.52  P.M. and entry Np. 32 earlier made at  5.35 P.M.  was changed  to 4.55  P.M..  P.W.4,  who exhibited a  plain copy  of D.D  No. 33,  testified that  he could  not  produce  the  original  as  the  same  had  been destroyed. It  is now  manifest that the above statement was faisely made  by P.W.4, least the production of the original diary entry  exposed the concerned police officers about the interpolation made. The reasons for the interpolation is not far to  seek. If  P.Ws. 5  and 6 had left the police post at 6.00 P.M. (as originally shown in the Daily Diary Book entry No. 33)  they could  not have  apprehended the  appellant at 5.30 P.M.  as testified by them nor could they have prepared the seizure list at the  same time (as shown). 8.   From the  materials on  record we  have, therefore,  no hesitation in  concluding that it was only on receipt of the order of  the Magistrate as communicated through the Station House Officer  of Kashmere  Gate Police Station that P.Ws. 5 and 6  along with  other police personnel felt it absolutely necessary to justify the detention of the appellant and with that ulterior object cooked up the story of his apprehension at 5.30  P.M. on  March 8,  1990 with unauthorised fire arms and ammunitions.  Unfortunately, these  aspect of the matter were completely  overlooked by  the Designated  Court  while accepting the  case of the prosecution in preference to that of the defence. 9.   We, therefore,  allow this  appeal and  set  aside  the conviction and sentence of the appellant and acquit him. The appellant, who is in jail, be released forthwith. 10.  Since the appellant has been made a victim of prolonged illegal incarceration  due to  machination of  P.Ws. 5 and 6 and other police personnel of I.S.B.T. police post we direct the Delhi  Government to  pay him  a sum  of Rs. 50,000/- as compensation. The  payment should  be made within two months from the  date of receipt of the order. The State Government will, however, be at liberty to recover the said amount from the erring police officers. 11.  From the  materials on  record, discussed above, we are also of  the opinion that it is expedient in the interest of justice that  an enquiry  should be  made in accordance with Sub-section (1)  of Section  340 Cr. P.C. into commission of offences under  Section 193,  195 and  211  I.P.C.  by  Sub- inspector Gopi  Chand (P.W.6), and under Section 193 and 195 I.P.C. by  Assistant Sub-inspector  Chander Bhan (P.W.5) and Head Constable  Balbir  Singh  (P.W.4).  We,  therefore,  in exercise of  the powers  conferred  by  Sub-section  (2)  of Section 340  Cr. P.C., call upon t he above three persons to show cause,  on or  before July  17, 1998,  why a  complaint should not  be made against them for the aforesaid offences. Let a  copy of  the judgment along with this order be served upon  them   through  the  Commissioner  of  Police,  Delhi. Registry is  directed to  keep the  Daily Diary  Book  in  a sealed cover until further orders of this Court.