Holding

The conviction was unsustainable because the police evidence was unreliable, leading the Court to set aside the conviction and acquit the appellant.

Summary

Mohd. Zahid was arrested by ISBT police on 8 March 1990 and charged under TADA for possessing three country‑made pistols and twelve cartridges. He contended that he had actually been detained on 6 March 1990, that no weapons were seized, and his father filed a complaint with the magistrate. The Designated Court relied on the testimony of two police officers despite the absence of independent witnesses and convicted him. On appeal, the Supreme Court examined the police diary entries and found multiple interpolations that undermined the credibility of the police version, concluding that the defence narrative was more probable. Consequently, the Court set aside the conviction, ordered Zahid’s immediate release, awarded Rs 50,000 compensation, and directed an inquiry under CrPC §340 against the involved police officers for offences under the IPC.

Issues considered

The reliability of police testimony and the admissibility of evidence when police diary entries are tampered with.
Whether a conviction under TADA can be sustained without independent corroboration of the alleged seizure of arms.
Whether the appellant’s right to liberty was violated resulting in illegal detention.
Whether compensation is warranted for wrongful incarceration.
Whether an inquiry under CrPC §340 should be ordered against the police officers for alleged offences.

Legislation cited

Arms Act, 1959s. 39
Code of Criminal Procedure, 1973s. 340
Indian Penal Code, 1860s. 193, s. 195, s. 211
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 5

Subjects

TADAillegal detentionpolice fabricationevidence tamperingcompensationcriminal procedurearms seizurewrongful conviction

Judgment

MOHD. ZAHID A
v.
THE GOVT. OF NCT OF DELHI

MAYS,1998

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

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

Section 5/Section 7-Arms and An~munitio11c-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 incarceration-
compensation 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. E
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
312 SUPREME COURT REPORTS [1998] 3 S.C.R.

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
F 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
G 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)
police post along with Assistant Sub-Inspector Chander Bhan (P. W. 5) and D
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
with the requisite sanction of the Deputy Commissioner of Police, North
District, New Delhi under Section 39 of the Arms Act, 1959.
F

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 l.S.B.T. from the bus he boarded at Meerut the police apprehended
G
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
314 SUPREME COURT REPORTS [1998] 3 S.C.R.

A P. Ws. 5 and 6 were the witnesses to the recovery and seizure of the fire arms
and ammunitions. The appellant, how~ver, 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. H
316 SUPREME COURT REPORTS (1998) 3 S.C.R.

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.
B
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 sub-
section (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.