Delhi District Court
Has Relied Upon S.M. Mazhar & Anr. vs . State Of on 22 January, 2009
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IN THE COURT OF SHRI R.K. JAIN :
ADDITIONAL SESSIONS JUDGE: 01 (NORTH) :
DELHI
S.C. No. 133/05
FIR No. 09/04
P.S. Special Cell
U/S 121/121-A/122/123 IPC
State
Versus
Ayaz Ahmed Shah @ Iqbal,
S/o Ali Mohd. Shah,
R/o Village Chhatabal,
P.S. Kulgam,
Distt. Anantnag, J & K.
JUDGMENT
1. The case of the prosecution is that on 22/01/2004, a secret information was received by Inspector Mohan Chand Sharma of P.S. Special Cell at about 7.00 a.m. that one person by the name of Iqbal had come to Delhi and he would come in front of 2 Welcome Metro Station to deliver explosive and hawala money and if raided, he can be apprehended. The information was reduced into writing in DD register and after discussing with Senior Officers, a raiding party was formed consisting of SI Umesh Barthwal, Inspector Mohan Chand Sharma, Inspector Badrish Dutt, SI Ravinder, SI Dharmender, SI Mehtab, SI Rahul, SI Sushil, SI Jai Kishan, ASI Rishi Pal, ASI Devender, H.C. Satender and Ct. Mohan. The entire team left the office of Special Cell at 7.30 a.m. and reached Welcome Metro Station at about 8.00 a.m. in three private vehicles. There 8-10 passersby were requested to join the raiding party but none agreed and left. Inspector Mohan Chand Sharma did not waste the time and deputed the members of the 3 raiding party to different places. At about 8.45 a.m., a person who was carrying a black colour bag on his shoulder came from Shastri Park side and stood in front of Metro Station on the road. The secret informer pointed out that he was the same person Iqbal who had come to deliver explosive and hawala money. Till about 9.30 a.m., no person came near Iqbal so he started going back towards Shastri Park. The raiding party overpowered that person at the instance of Inspector Mohan Chand Sharma. The name of that person was found to be Ayad Ahmed Shah @ Iqbal. The black colour shoulder bag which he was carrying was checked and it was found to contain yellow powder and granulated explosive. Rs.3,00,000/- were also recovered from the bag. 4-5 passersby were 4 again requested to join the investigation but none agreed. The explosive was weighed and it was found to be 3.6 kg. Two samples of 10 gm each were separated and sealed and the remaining explosive was also seized. Rs.3,00,000/- were also sealed. Form CFSL was also filled. On interrogation, the accused told that he was a member of a Kashmiri Terrorist Outfit 'Hizb-e-islami' and that he had come to deliver the explosive and hawala money to a person Raju as per instructions of Asif R/o Pakistan.
2. In the rukka, it was alleged that the accused had brought the explosive and hawala money to wage war against Govt. of India. A case under Section 121/121- A/122/123/120-B IPC read with 4/5 Explosive 5 Substance Act was got registered. The persons who had handed over the explosive and hawala money to accused could not be traced.
3. After completion of investigation, the final report was filed in the court of Ld. M.M. who after completing the formalities, committed the case to the Court of Sessions for trial.
4. Charges under Section 4/5 Explosive Substance Act, under Section 121/121-A/122/123/120-B IPC were framed against the accused to which he pleaded not guilty and claimed trial.
5. The prosecution examined 11 witnesses in 6 support of the case. The accused in his statement recorded under Section 313 Cr.P.C. denied all the allegations including recovery and stated that he was falsely implicated in this case. He claimed that the police had picked several 'Kashmiris' from Shastri Park dwelling and had taken them to Special Cell. A representation was made to LG by the family members of other 'Kashmirisand then those 'Kashmiris' were released but he was implicated in this case.
6. He examined one witness in defence also who is a UDC from LG office who produced a diary according to which, one complaint against local police, Shastri Park and Seelampur was received on 29/03/2005. The copy of the same is Ex DW- 1/A. 7
7. Ex DW- 1/A neither contains the contents of the complaint nor the names of the persons who were arrested by the police and nothing favourable to accused is reflected in that diary.
8. Inspector Mohan Chand Sharma was examined as PW11. He deposed that the secret information was reduced into writing and after discussion with Senior Officials, a raiding party was formed. They left the office of Special Cell vide DD Entry Ex PW- 11/B and reached the spot. Some passersby were requested to join the investigation but none agreed. He deployed all the team members in front of Welcome Metro Station. At about 8.45 a.m., he saw accused coming 8 from Shastri Nagar side carrying a black colour bag on his shoulder who was identified by the informer. The accused kept waiting at Metro Railway Station for about half an hour but no one came to meet him. The accused started going back towards Shastri Park when he was apprehended. His bag was checked and recovery of explosive and cash was effected. SI Barthwal did all the proceedings, seizures and sealing of the explosive and the money and also filled CFSL Form and before that, he had drawn sample from the explosive material. He informed Senior Officials about the apprehension of accused and recovery of explosive and the money. SI Umesh Barthwal prepared the rukka and sent the same to P.S. Special Cell for registration of the case. During interrogation, 9 accused told that he was member of "Hizb-e-islami"
and was directed by District Commander of Anantnag to deliver the consignment of explosive and money to a person who would come at Welcome Metro Station to meet him. He identified the exhibits recovered from the accused also which are Ex P-1 to Ex P-4.
9. In his cross-examination, PW11 admitted that the secret informer had not given the address of Iqbal in Delhi or Sri Nagar and about quantity of the explosive or amount. He admitted that the description of Iqbal or the clothes he would be wearing was also not informed. According to him, the vehicles belonged to SI Mehtab, SI Dharmender and Inspector Badrish Dutt and petrol expenses were reimbursed from secret 10 service fund. He admitted that they have not joined Metro Staff in the raiding party. According to him, the members of raiding party were deployed at a distance of 5, 10, 15 & 20 meters from each other. He could not tell which of the member of the raiding party was having which type of arm. According to him, he was having 9 mm pistol and one member of raiding party was carrying AK-47. He could not tell if family members of the accused were called to the spot or not. He could not tell how much explosive was drawn as sample by IO. He admitted that the team was not having any explosive testing kit. He could not tell the name of the person to whom the seal after use was handed over. According to him, he had not done any writing work except making of entries in DD register. 11 He could not tell what was recovered from 'jamatalashi' of the accused. He denied that nothing was recovered from the accused and he was falsely implicated in this case.
10. PW6 is SI Umesh Barthwal who had conducted initial investigation. He in his examination-in-chief deposed whatsoever was recorded in rukka Ex PW- 1/B and deposed that after registration of the case, the further investigation was assigned to PW7 SI Arvind Kumar. He also identified the exhibits recovered from the accused.
11. In his cross-examination, PW6 deposed that the information was not received in his presence but he 12 was briefed subsequently. According to him, rukka was sent at about 11.15 a.m. and when SI Arvind came, the recording of rukka was being completed. He claimed that he had joined the investigation with SI Arvind Kumar also but he could not tell the time when copy of FIR was received by him. According to him, SI Ravinder Kumar had prepared the memo Ex PW- 1/A whereas rukka was in his own hand. He denied that the seizure memo Ex PW- 1/A and the rukka Ex PW- 1/B were in same handwriting. He could not tell how many members of the raiding party were wearing the bullet proof jackets. He could not tell for how long the proceedings continued. According to him, after the investigation was handed over to SI Arvind Kumar, the team had gone to jhuggi of accused where family 13 members of accused met them. He admitted that he had interrogated the accused on the spot but disclosure statement was not recorded. He also denied that nothing was recovered from the accused and he was falsely implicated in this case.
12. PW3 is SI Ravinder. He in his examination-in- chief also deposed on the lines of PW6 & PW11. In his cross-examination, he claimed that the three private vehicles belonged to the officials of Special Staff but he did not know which vehicle belonged to who of the official. He could not tell if any official from Metro Rail was joined in the investigation or not. He could not tell the number of persons who were asked to join the raiding party. He could not tell what was 14 recovered from personal search of the accused. According to him, the family members of accused were present in a tent at Shastri Park but none from nearby tents was called to join the investigation. He could not tell the total pullandas prepared at the site. He could not tell if IO had explosive testing kit in his bag or not. He could not tell who had brought the rukka back. He could not tell when they left the spot finally.
13. PW1 is ASI Rishi Pal who in his examination-in- chief also deposed on the lines of other PWs. In his cross-examination, he denied that accused was arrested from Shastri Park on 19/01/2004. He also admitted that accused had a temporary jhuggi at Shastri Park where they had found his family 15 members.
14. PW4 is SI Jai Kishan who also deposed on the lines of others in his examination-in-chief. In his cross- examination, in contradiction of all other PWs, he deposed that the secret informer had not disclosed the name of the person who would come at Welcome Metro Station. He also admitted that no employee of Welcome Metro Station was asked to join the raiding party. According to him, he had not returned to the place of occurrence with copy of FIR and rukka. He could not tell as to how many times, the substance was weighed. He denied that he was not a member of raiding party and that accused was not arrested in his presence. PW9 is ASI Paramjit who was working as 16 MHC (M) in Special Staff.
15. PW2 is H.C. Ajit Singh who had taken the samples to CFSL and PW5 is S.S.O. who had examined the samples and had given his report Ex PW- 5/A. According to him, the explosive substance recovered was high explosive which could form a component of improvised explosive device. PW8 proved the sanction granted under Section 196 Cr.P.C. by the L.G. PW10 proved the sanction under Section 7 of Explosive Substance Act.
16. I have heard Ld. counsel for the accused, Ld. Addl. P.P. for the State and have gone through the relevant record.
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17. Ld. defence counsel has vehemently contended that the sanction under Section 7 of the Explosive Substance Act 1908 was not given by the competent person and, therefore, the trial itself under Section 4/5 Explosive Substance Act 1908 was invalidated.
18. Section 7 of the Explosive Substance Act 1908 reads as under :-
"Restriction on trial of offences- No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate".
19. In the present case, the sanction under Section 7 of the Explosive Substance Act has been given by 18 Deputy Commissioner of Police Headquarters in the name of Commissioner of Police. As per Section 7 of the Explosive Substance Act the consent has to be given by the District Magistrate. Under Section 146 of the Delhi Police Act 1978, the Commissioner of Police has been authorized to exercise all powers and discharge all functions which may be exercised or discharged by a District Magistrate under the Acts mentioned in Schedule 1 including the rules made thereunder. Schedule 1 contains the list of Acts in which the Commissioner of Police can act as District Magistrate and that Schedule is as under :-
"SCHDEULE 1 [See Section 146 (1)] PART 1 Central Acts
1. The press and Registration of Books Act, 1867.19
2. The Indian Explosives Act, 1884.
3. The Indian Lunacy Act, 1912.
4. The Poisons Act, 1919.
5. The Police (Incitement to Disaffection) Act, 1922.
6. The Cinematograph Act, 1952.
7. The Suppression of Immoral Traffic in Women and Girls Act, 1956.
8. The Arms Act, 1959.
9. The Prevention of Cruelty to Animls, 1960.
PART II Delhi Act and Acts extended to Delhi
1. The Madras Restriction to Habitual Offenders Act, 1948, as in force in Delhi.
2. The Punjab Security of State Act, 1953, as in force in Delhi.
3. The Madras Dramatic Performance Act, 1954, as in force in Delhi.
4. The Delhi Public Gambling Act, 1955.
5. The Bombay Prevention of Begging Act, 1959, as in force in Delhi."20
20. In the Schedule, the Explosive Substance Act 1908 is not mentioned but the Indian Explosive Act 1884 is listed.
21. Ld. Addl. P.P. has contended that the Explosive Substance Act 1908 infact was in continuation of the Indian Explosive Act and the sanction by Commissioner of Police could be deemed to have been given by the District Magistrate.
22. On the other hand, Ld. counsel for the accused has relied upon S.M. Mazhar & Anr. Vs. State of Bihar 1996 (1) Crimes 102 in which the Hon'blePatna High Court has held that the Explosive Substance Act 21 was an independent Act by itself and not an amendment to Explosive Act 1884.
23. I find force in the contention of Ld. defence counsel.
24. Ld. Addl. P.P. has contended that the consent as required under Section 7 of the Explosive Substance Act can be procured now and fresh trial can be ordered. It is submitted that infact such consent has been obtained from the concerned District Magistrate at the time of hearing of final arguments.
25. Ld. defence counsel has relied on Latif Shah and Anr. Vs. State of Bihar 1990, Crl. L. J. NOC 70 22 (Patna) in which the Hon'blePatna High Court had held that at the stage of delivery of judgment, the prosecution cannot be given an opportunity to fill up the lacuna. It is submitted by Ld. defence counsel that the accused had been in custody for about five years and it would absolutely be unjust if re-trial is ordered and judgment is withheld. I agree with the contention of Ld. defence counsel. It is not justified to defer the judgment and order re-trial of the case more particularly, when accused has already suffered for five years in judicial custody. Ld. defence counsel has also relied on 1) Baijnath, 2) G.V. Kale Appellant Vs. State of M.P. AIR 1966 SC 220 in which it was held that the sanction under Section 197 of the Criminal Procedure Code if obtained after cognizance was 23 taken is of no use. It is submitted that the sanction was required before proceeding with the trial and in the absence of the same, the trial under Section 4/5 of the Explosive Substance Act was vitiated and I agree with the contention of Ld. defence counsel.
26. Ld. defence counsel has vehemently contended that no offence punishable under Section 121/121- A/122/123/120-B IPC read with 4/5 Explosive Substance Act has been proved by the prosecution against the accused. It is submitted that merely by possession of RDX, it cannot be said that the accused conspired to commit any offence punishable under Section 121 IPC or conspired to overawe by means of criminal force or the show of criminal force, the Central 24 Govt of any State Govt. It is also submitted that the prosecution has failed to prove that the accused had collected arms with intention of waging war against Govt. of India or had concealed the existence of design to wage war against Govt. of India. It is also submitted that the prosecution has failed to prove that the accused had conspired to commit a terrorist act or was a member of terrorist gang or organization.
27. In 2005 Cr.L.J. 3950 (SC) State (N.C.T. of Delhi) V. Navjot Sandhu, it has been held that, "We have already expressed reservations in adopting this test in its literal sense and construing it in a manner out of tune with the present day. The Court must be cautious in adopting an approach which has the effect of bringing within the fold of 25 Section 121 all acts of lawless and violent acts resulting in destruction of public properties etc., and all acts of violent resistance to the armed personnel to achieve certain political object sought to be attained is of general public nature of has a political hue, the offensive violent acts targeted against armed forces and public officials should not be branded as acts of waging war. The expression 'wagingwar'should not be stretched too for to hold that all the acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the Government. A balanced and realistic approach is called for in construing the expression 'waging war' irrespective of how it was viewed in the long long past.
An organized movement attended with violence and attacks against the public officials and armed forces while 26 agitating for the repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of treason in the form of levying war. We doubt whether such construction is in tune with the modern day perspectives and standards. Another aspect on which a clarification is called for is in regard to the observation made in the old decisions that "neither the number engaged nor the force employed, nor the species of weapons with which they may be armed" is really material to prove the offence of levying/waging war. This was said by Lord President Hope in R v. Hardie in 1820 and the same statement finds its echo in many other English cases and in the case of Maganlal Radha Krishan v. Emperor [AIR 1946 Nagpur 173 at page 186]".
28. It is further submitted by Ld. defence counsel 27 that the prosecution has failed to prove that accused belonged to banned militant organization 'Hizb-e- islami' and was launched as Area Operational Commander. It is further submitted that there was no evidence on record to show that the accused had any intentions to use the explosive substance in any manner.
29. In the present case, except so called disclosure statement of the accused, there is nothing on record even to indicate that the accused was member of any terrorist outfit. The prosecution has also failed to prove that accused had entered into any criminal conspiracy to wage war against Govt. of India or in pursuance of that conspiracy, had collected the 28 explosive substance or that had concealed the existence of a design to wage war against the Govt. of India.
30. Ld. defence counsel has pointed out that even sanction required under Section 196 Cr.P.C. was not proper. It is submitted that as per Section 196 Cr.P.C., no court could taken cognizance of any offence punishable under Chapter VI (under which the offence punishable under Section 121 to 130 IPC fall) of the IPC unless the Central Govt. or the State Govt. has given previous sanction. It is submitted that as per the final report itself, when it was filed in the court, no sanction under Section 196 Cr.P.C. was attached to it and that the cognizance was taken on 20/04/2004 whereas, the sanction was filed in the court on 29 21/04/2004.
31. In the present case, it appears that the officials of Special Cell were not vigilant enough in procuring the required sanction and treated the present case as an ordinary case under Arms Act and that has resulted in all the lapses which are apparent on record. In any case, the benefit of all these lapses has to be given to the accused. Accordingly, I acquit the accused for the offences, he is charged with. Rs.3,00,000/- be confiscated to the State and other case property be destroyed after the period of appeal or revision if any, is over.
File be consigned to Record Room.
Announced in the Open Court.
(R.K. JAIN) Additional Sessions Judge:Delhi 22/01/2009.
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