1. The appellant was charged under Section 5 of the Terrorists and Disruptive Activities (Prevention) Act of 1987 (for short TADA).
2. The allegations on which he came to be punished under the said section are as under:
On 25th August, 1988 when Balkar Sing, ASI with other police officials including Mohinder Singh, ASI was picketing the canal bridge in the area of village Ghariali, the appellant appeared with one 315 bore rifle loaded with a live cartridge and two other live cartridges on his person. He did not have any licence for the possession of the rifle and the cartridges.
3. The appellant pleaded not guilty to the charge and he took trial. The Police Officers Baldev Singh PW3 and Mohinder Singh PW 5 deposed to the seizure of the firearm. It is also recorded that on testing the firearm mechanically it was found to be in working order.
4. The stand of the appellant was that he was innocent. According to him he was arrested a month and 27 days before the so-called seizure and he was confined to the police station in Valtoha. In support of the statement he examined Head Constable Deva Singh of the said police station of Valtoha through him was produced the daily diary under register No. 19. It was brought out from the diary that the word 'din' as against entry No. 22 had been altered by overwriting the word 'rat'. The description of the firearm was 415 originally that came to be altered as 315. Besides the entry 114/19 had been supreme posed upon the figure 160 in red ink. All these alterations were sought to be pressed into service to make out a case in support of the defence.
5. The learned Designated Court accepting the evidence of the prosecution witness held the seizure of the firearm from the appellant had been proved. As regards the defence version the Court was of the opinion that Head Constable Deva Singh was not the person who was incharge of this register No. 19. Further he was not the person who made these alterations. Therefore, it was incumbent on the part of the accused (appellant) to have examined the police officers who had made these alterations. On this line of reasoning he sentenced the appellant under Section 5 and imposed the minimum punishment of 5 years. Thus, the appeal before us.
6. In support of the plea of the appellant before us, it is argued by the learned Counsel for the appellant that the Designated Court has wrongly cast the burden on the appellant to prove various alterations, corrections including overwritings in the entries of the register. After all it was the duty of the prosecution to prove that the seizure was from the appellant. Excepting the interested testimony of the appellant, there is no other independent testimony. In such an event, having regard to the discrepancies which are found in register No. 19, the appellant could not have been convicted under Section 5 because, if it was a case of a true seizure of firearm from the appellant such overwritings would not have taken place.
7. In opposition to this the learned Counsel appearing for the State would urge that it has not been established by the appellant that the police officers had any enmity. If their evidence is accepted the seizure is proved, notwithstanding certain corrections made then and there in register No. 19. In fact these alterations in register No. 19 had been considered by the Designated Court and appreciated properly. No case is made out warranting interference.
8. We have given our careful consideration to the above arguments. This is a case in which so-called seizure of the firearm is spoken to only by ASI Balkar Singh and ASI Mohinder Singh. It is for them to establish that the seizure was made from the appellant. Though one would have been inclined to accept the evidence of these police officers concerning this seizure, if the testimony had stood by itself, in the instant case we are obliged to examine the same in the light of the various entries in register No. 19. It is some what surprising that when this register was produced through DW 1 Head Constable Deva Singh the Designated Court would expect the appellant to prove as to who was responsible for these alterations, corrections and overwritings. That would amount; casting the burden wrongly on the appellant. It is a diary maintained by the police station. The prosecution ought to have proved as to who was responsible for these alterations or overwritings. The case of the accused is that he was detained for more than one month and 27 days in the police station of Valtoha. If really that firearm was seized from him on particular day, the question of altering the day into night or again make of gun as .315 bore from .415 bore could not occur. Equally a super-imposition of the figure 116 manifest an anxiety of the prosecution to rope in the appellant. The observation made by the Designated Court that it signifies the F.I.R. number is without warrant. Under these circumstances, agreeing with the appellant's counsel, we are unable to hold that a case under Section 5 of the TADA had been made out. Accordingly, we set aside the sentence and conviction imposed on the appellant. The appeal stands allowed. He shall be released forthwith.