MOHD. ZAHID

THE GOVT. OF NCT OF DELHI

MAYS,1998

[M.K. MUKHERJEE AND G.B. PATTANAIK, JJ.]

Terrorist and Disruptive Activities (Prevention) Act, 1987/Arms Act, 1959 ..

Section 5/Section 7-Arms and Anmunitio11c-Alleged recovery from C the Appellant-Appellant's father complained against the illegal arrest of the appellant two days prior to the alleged date of arrest-No independent witness-Prosecution evidence held reliable-Conviction by the Designated Judge-Interpolations in the relevant entries of Daily Dairy Book of Police

Post found-Held, Defence Version Probable-Conviction and sentence set D aside-Appellant made victim of prolonged illegal incarcerationcompensation awarded.

Criminal Procedure Code, 1973-Inidan Penal Code-Ss 3401193, 195 and 21 I-Fabrication of evidence-Enquiry against the erring Police Personnel-Show cause notice-issued.

According to the prosecution, in the afternoon of March 8, 1990, Sub Inspector 'G' (PW-6) of l.S.B.T. (Inter State Bus Terminus) Police Post along with Assistant Sub-Inspector 'C' (P.W. 5) and other police personnel

on patrolling duty 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 F suspicion and found, on search of his bag, 3 country made pistols and 12 cartridges. 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 cartridge were alive;

After obtaining necessary sanction under S. 39 of the Arms Act, 1959 G the appellant was charge sheeted. The appellant pleaded not guilty to the charges levelled against him. He asserted that no country made fire arm or cartridge was recovered from him and that false case has been foisted ag:iinst him and he was apprehended by the Police on the evening of March 6, 1990 when he got down at the I.S.B.T. The appellant produced before the H 311

A Court certified copy of a telegram sent by his father to the higher authorities on March 8, 1990, wherein he complained that his son, the appellant was arrested by the Police Post, I.S.B. T. on March 6, 1990 and an application which he moved before a Metropolitan Magistrate, New Delhi on the same day making identical complaint.

B The Designated Court held that the evidence of PWs 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 PWs 5 and 6 that none of the members of the public present at the bus terminus agreed to join the search, was reasonable.

C In appeal before this Court, Daily Dairy Book of the Police Post containing entry No. 33 dated March 8, 1990, a copy of which was exhibited by Head Constable 'P' (PW-4), was called to prove that the patrolling party left the police post at 5 p.m. It was found that the time at which the party left stood interpolated and the time of departure of the party which was earlier shown as 6 P.M. was changed to 5 P.M. Similar interpolations were found D to have been made in the earlier two entries. While entry no. 31 which was initially shown to have been made at 5.40 P.M. was subsequently changed to 4.52 P.M., and entry no. 32 earlier made at 5.35 P.M. was changed to 4.55

P.M

Allowing the appal and setting aside the conviction and sentence of the E appellant, this Court.

HELD : 1.1. It was only on receipt of the order of the Magistrate as communicated through the Station House Officer of Kashmere Gate Police Station that PWs 5 & 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 live arms and ammunitions. Since, according to the prosecution the appellant was arrested at 5.30 P.M., the above circumstance makes the defence version probable. [315-F, A)

2.2 An enquiry should be made in accordance with sub section (1) of Section 340 Cr. P.C. into commission of offence under Sections 193, 195 and 21 l I.P.C., by P.W.6 and under Sections 193 and 195 I.P.C., by P.W.4, and show cause notice is issued to both of them. (316-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 892of1997.

H From the Judgment and Order dated 19.7.1997 and 22.7.1997 of the

MOHD. ZAHID v. GOVT. OFNCT OF DELHI [M.K. MUKHERJEE, J.] 313

Designated Court-II, Delhi in S.C. No. 272 of 1995 .

A ...

Vijay K Jain for the Appellant.

V.C. Mahajan, (Raj iv Shanna) for Mrs. Anil Katiyar for the Respondent.

The Judgment of the Court was delivered by B

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 c 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 l.S.B.T. (Inter-State Bus Terminus) D 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 l.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 12 cartridges. He seized those articles under a E 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 F -

....

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 G got down at l.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

4 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 witnesses of whom H

A P. Ws. 5 and 6 were the witnesses to the recovery and seizure of the fire arms and ammunitions. The appellant, howver, 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 B 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 C 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 D 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 after his apprehension, to make out a defence.

6. Though, apparently, there is no reason as to why P.Ws. 5 and 6 E would implicate the appellant falsely, a closer look into the materials brought on record cleatly indicates 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.

F 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 G 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 ofI.S.B.T. police post. Though the appellant did not examine his father or any other witness to prove at which hour of the H day the above application was filed and moved, it can be safely presumed that

MOHD. ZAHID v. GOVT. OF NCT OF DELHI [M.K. MUKHERJEE, J.] 315

it was filed and order of the Magistrak obtained thereon, during Court hours, A 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 our conclusion on the above circumstance, we called for the Daily Diary Book of the police B post containing entry No. 33 dated March 8, 1990, a copy of which (Ext. PW4/ A) was exhibited by Head Constable Premvir 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 C 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 entries : 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 No. 32 earlier made at 5.35 P.M. was changed to 4.55

P.M .. P.W.4, who exhibited a plain copy ofD.D No. 33, testified that he could D not produce the original as the same had been destroyed. It is now manifest that the above statement was falsely made by P.W.4, lest 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 E 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 F 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 aspects of the G 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.

A I 0. 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 (I) of Section 340 Cr. P.C. into commission of offences under Sections 193, 195 and 211 l.P.C. by Sub- Inspector Gopi Chand (P.W.6), and under Sections 193 and 195 l.P.C. by C Assistant Sub-Inspector Chander Bhan (P. W.5) and Head Constable Premvir

Singh (P.W.4). We, therefore, in exercise of the powers conferred by subsection (2) of Section 340 Cr. P.C., call upon the 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 D is directed to keep the Daily Diary Book in a sealed cover until further orders of this Court.

A.M.

Appeal allowed.