Delhi District Court
68 vs C on 24 July, 2023
1
IN THE COURT OF SH. SANJAY KHANAGWAL
ASJ-02: NEW DELHI DISTRICT
Date of Judgment:- 24.07.2023
SC No. 185/2013
Case No. 8871/2016
FIR No. 16/2012
u/s 120B IPC,
16/18/18A/18B/20 of UAPA,
u/s 5 of Explosive Substance Act &
25 Arms Act
P.S. Special Cell
CNR No. DLND01-000417-2013
Complainant: State
REPRESENTED BY State
ACCUSED 1. Asad Khan @ Kaka
@ Zahid
S/o Jamshed ali Khan,
R/o Plot no. 04,
Tawakkal Nagar,
Naigaon, District
Aurangabad,
Maharashtra.
2.Imran Khan @
Tabrez @ Raj
S/o Wajed Khan
R/o Peer Bhurahan
Nagar, near Masjid-e-
Saalehind, Nanded,
Maharashtra.
3. Sayed Feroz @
Hamza @ Sunny
S/o Abdul Hamid
R/o 598, Shukarwar
Peth, Pune, Maharashtra
State v. Asad Khan & ors
FIR No.16/2012 Page 1 of 87
2
4. Landge Irfan
Mustafa @ Zaki @
Ashok
S/o Mustafa Usman
Landge
R/o Tabrak Allah, Plot
no. 31, Raj Nagar, Draga
Dayra road, Mukund
Nagar, Ahmad Nagar,
Maharashtra
5.Sayed Maqbool
S/o Sayed Hazi
R/o 16/1/24-C, Farha
Colony, Saidabad,
Hyderabad.
6. Tehsin Akhtar @
Monu
S/o Wasim Akhtar
R/o Village Maniyarpur,
P.O Muktapur, P.S
Kalyanpur, District
Samastipur, Bihar.
(Discharged vide order
dated 26.02.2016)
7. Zia-ur-Rehman @
Waqas @ Nabeel
Ahmad @ Ahmad
S/o Jalaluddin
R/o 296, Mustafabad,
Tehsil Gojara, District
Toba Tek Singh, Punjab,
Pakistan.
(Discharged vide order
dated 26.02.2016)
REPRESENTED BY Sh. M. S. Khan,
Advocate for all five
accused persons.
State v. Asad Khan & ors
FIR No.16/2012 Page 2 of 87
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Date of Offence Prior to 07.07.2012
Date of FIR 07.07.2012
Date of Charge-sheet 04.02.2013
Date of Framing of Charges 26.02.2016
Date of commencement of evidence 28.04.2016
Date on which judgment is reserved 20.07.2023
Date of the Judgment 24.07.2023
Final Order 24.07.2023
ACCUSED DETAILS :
Rank Name of Date of Arrest Date of Offence Whether Sentence Already
Accused Release charged with Acquitted/ Imposed undergone
on Bail convicted period of
detention
during
trial for
Section
428 CrPC
Asad Khan @ 26.09.2012 NA 18/20 UAPA Convicted -- --
Kaka & 4/5
Explosive
Substance
Act
Imran Khan 26.09.2012 NA 18/20 UAPA Convicted -- --
& 4/5
Explosive
Substance
Act
Sayed Feroz 01.10.2012 NA 18/20 UAPA Convicted -- --
& 4/5
Explosive
Substance
Act & 25
Arms Act
Landge Irfan 10.10.2012 NA 18/20 UAPA Convicted -- -
Mustafa
Sayed 23.10.2012 NA 18/20 UAPA Acquitted -- -
Maqbool & 4/5
Explosive
Substance Act
State v. Asad Khan & ors
FIR No.16/2012 Page 3 of 87
4
LIST OF PROSECUTION / DEFENCE / COURT
WITNESSES
A. PROSECUTION :
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT WITNESS,
MEDICAL WITNESS, PANCH
WITNESS. OTHER WITNESS)
Public Witness Samsun With regard to arrest of accused
Massih Sayed Feroz (PW1)
Public Witness Arvind Gupta With regard to identification of
accused Imran Khan and Asad
Khan (PW2)
Public Witness Sunil Negi With regard to arrest of accused
Asad Khan (PW3)
Public Witness Irfan Yunus With regard to tenancy and seizure
Qureshi from accused Sayed Feroz.(PW4)
Public Witness Jitender With regard to recovery at the
Mhaske instance of accused Sayed Feroz.
(PW5)
PSI, P.S Lashkar, B. C. Gavit With regard to seizure of bag at the
Pune instance of accused Sayed Feroz
(PW6)
Head Constable, Rahul Ghadke With regard to seizure from
Crime Branch, Pune. accused Sayed Feroz. (PW7)
Sub-Inspector Vinod Yadav With regard to arrest of accused
Sayed Feroz. (PW8)
Public Witness Amit With regard to tenancy and stay of
Chaudhary accused Imran Khan. (PW9)
Public Witness Veer Singh With regard to tenancy of accused
Imran Khan. (PW10)
Sub-Inspector Vinay Pal With regard to investigation qua
accused Sayed Maqbool. (PW11)
Public Witness Maroti Dev With regard to investigation qua
Rao Dhuppe accused Sayed Maqbool. (PW12)
Public Witness Ibrahim Ali With regard to visit of accused
Junaid Sayed Maqbool in clinic. (PW13)
State v. Asad Khan & ors
FIR No.16/2012 Page 4 of 87
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Asstt. Sub-Inspector Shamsher With regard to deposit of exhibits
Singh in CFSL. (PW14)
Subhash With regard to deposit of exhibits
Asstt. Sub Inspector Chander in CFSL. (PW15)
Sub-Inspector Yogesh With regard to investigation qua
Kumar accused Langde Irfan Mustafa and
Sayed Feroz. (PW16).
Sub-Inspector Banne Singh With regard to arrest of accused
Sayed Maqbool. (PW17)
Police Naik K. B. Jugtap Witness to the recovery from
accused Sayed Feroz. (PW18)
Asstt. Commissioner G. D. Kolekar Witness to the recovery from
of Police. accused Sayed Maqbool. (PW19)
Duty Officer, Mahesh With regard to ticket recovered
Rajasthan Roadways Kumar from accused. (PW20)
Sharma
Senior Scientific B. Magesh With regard to chance prints from
Officer, CFSL Krishna the spot. (PW21)
Ratnam
Inspector Sunil Kumar With regard to investigation qua
accused Asad Khan, Sayed Feroz
and Imran Khan. (PW22)
Chief Booking Popat Bandu With regard to Verification
Supervisor, Indian Deshmukh Certificate of train ticket. (PW23)
Railways, Pune.
Principal Scientific A. Dey With regard to examination of
Officer, CFSL sealed parcels. (PW24).
District Magistrate J. B. Singh With regard to sanction u/s 7 of
Explosive Substance Act. (PW25)
Inspector Bhushan With regard to interrogation of
Kumar Azad accused Imran, Asad and Zia-ur-
Rehman. (PW26)
Additional Secretary, G. P. Singh With regard to sanction u/s 45
Home. UAPA. (PW27)
Principal Scientific A. D. Shah With regard to taking chance prints
Officer (Fingerprint), from the spot. (PW28)
CFSL
Landlord Yusuf Sheikh With regard to identification of
accused Sayed Feroz. (PW29)
Asstt. Sub-Inspector Sanjiv Kumar MHC(M), P.S Special Cell (PW30)
State v. Asad Khan & ors
FIR No.16/2012 Page 5 of 87
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Sub-Inspector M. Baxla MHC(M), P.S Special Cell.
(PW31)
Inspector Ravinder With regard to investigation qua
Joshi accused Sayed Feroz, Sayed
Maqbool and Asad Khan (PW32)
Public Witness Roshan With regard to arrest of accused
Chaudhary Irfan Mustafa. (PW33)
Asst. Commissioner Lalit Mohan With regard to investigation qua
of Police Negi accused Irfan Mustafa. (PW34)
Deputy Sanjeev Complainant of the case. (PW35)
Commissioner of Kumar Yadav
Police.
Asstt. Commissioner Manishi IO of the case. (PW36)
of Police Chandra
B. DEFENCE WITNESSES, IF ANY: NONE
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT WITNESS,
MEDICAL WITNESS, PANCH
WITNESS. OTHER WITNESS)
- - --
C. COURT WITNESSES, IF ANY: NONE
RANK NAME NATURE OF EVIDENCE
(EYE WITNESS, POLICE
WITNESS, EXPERT WITNESS,
MEDICAL WITNESS, PANCH
WITNESS. OTHER WITNESS)
-- - --
State v. Asad Khan & ors
FIR No.16/2012 Page 6 of 87
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LIST OF PROSECUTION/ DEFENCE / COURT EXHIBITS
A. PROSECUTION
Sr. No. Exhibit Number Description
1. Ex. PW 1/A Seizure memo
2. Ex. PW 1/B Seizure memo of
explosive material
3. Ex. PW 1/C Arrest memo of
accused Sayed Feroz
4. Ex.PW 1/D Personal search memo
of accused Sayed
Feroz.
5. Ex. PW1/DA Statement u/s 161
CrPC
6. Ex. PW 1/E Inspection Memo
7. Ex. PW2/A Seizure memo
8. Ex. PW 3/A Seizure memo
9. Ex. PW 3/B and 3/C Seizure memo
10. Ex. PW 3/D Arrest memo of
accused Imran Khan
11. Ex. PW 3/E Arrest memo of
accused Asad Khan
12. Ex. PW 3/F Personal search memo
13. Ex. PW 3/G Personal search memo
14. Ex. PW 4/A Pointing out memo
15. Ex. PW 4/B Photograph of accused
16. Ex. PW 10/DA Statement u/s 161
CrPC
17. Ex. PW 11A Disclosure statement
of accused Sayed
Maqbool
18. Ex. PW 11B Seizure memo
19. Ex. PW 11/C Site plan
20. Ex. PW 11/D Pointing out memo
State v. Asad Khan & ors
FIR No.16/2012 Page 7 of 87
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21. Ex. PW 12/A Inner Case Diary
22. Ex. PW 16/A Arrest memo
23. Ex. PW 16/B Personal Search memo
24. Ex. PW16/C Seizure memo
25. Ex. PW 16/P1 Bus ticket
26. Ex. PW 16/D Search memo
27. Ex. PW 16/E Disclosure statement
of accused.
28. Ex. PW 16/F Supplementary
Disclosure statement.
29. Ex. PW 16/G Sketch of pistol and
04 cartridges
30. Ex. PW 16/H Sketch of pistol and
05 cartridges
31. Ex. PW 16/I and J Photographs
32. Ex. PW 16/K Disclosure statement
33. Ex. PW 17/A Arrest memo
34. Ex. PW 17/B Personal Search memo
35. Ex. PW 17/C Body Inspection
Memo
36. Ex. PW 17/D Seizure memo
37. Ex. PW 18/A Pointing out memo
38. Ex. PW 20/A Endorsement on ticket
39. Ex. PW 20/B DSA print
40. Ex. PW 21/A Forwarding letter.
41. Ex. PW 21/B Impression slip of
accused Imran Khan.
42. Ex. PW21/C Impression slip of
accused Asad Khan
43. Ex. PW 21/D Impression slip of
accused Sayed Feroz
44. Ex. PW 22/A Disclosure statement.
45. EX. PW 22/B Disclosure statement
46. Ex. PW 22/C Supplementary
Disclosure Statement.
State v. Asad Khan & ors
FIR No.16/2012 Page 8 of 87
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47. Ex. PW 22/D Supplementary
Disclosure Statement.
48. Ex. PW 22/E Supplementary
Disclosure Statement.
49. Ex. PW 23/A Certificate qua
issuance of train
ticket.
50. Ex. PW 23/B Copy of train ticket
51. Ex. PW 24/A CFSL report
52. Ex. PW 25/A Sanction under
Explosive Substance
Act.
53. Ex. PW 26/A Supplementary
disclosure statement
of accused.
54. Ex. PW 26/B and C Supplementary
disclosure statements
55. Ex. PW 26/D and E Identification memos
56. Ex. PW 27/A Sanction under UAPA
57. Ex. PW 27/B Sanction under UAPA
58. Ex. PW 28/A Fingerprint report
59. Ex. PW 29/DA Statement u/s 161
CrPC
60. Ex. PW 30/A to F MHC(M) entries in
Register no. 19
61. Ex. PW 30/G and H MHC(M) entries in
Register no. 21
62. Ex. PW 31/A MHC(M) entry in
Register no. 21
63. Ex. PW 32/A Disclosure statement
of Sayed Maqbool
64. Ex. PW 33/P1 Black and red colour
pithu bag
65. Ex. PW 35/A Complaint/rukka
66. Ex. PW 35/B Sanction u/s 39 Arms
Act.
67. Ex. PW 36/A Body Inspection
State v. Asad Khan & ors
FIR No.16/2012 Page 9 of 87
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memo of Asad Khan
68. Ex. PW 36/B Body Inspection
memo of Imran Khan
69. Ex. PW 36/C Letter to Indian
Railways for ticket
verification.
70. Ex. PW 36/DA Statement of SI Rishi
Pal Singh.
71. Ex. PW 36/DB Statement of PW Sunil
Negi.
72. Ex. A1 Copy of FIR
B. DEFENCE: NONE
Sr. No. Exhibit Number Description
- - --
C. COURT EXHIBITS
Sr. No. Exhibit Number Description
Nil Nil
Nil Nil
D. MATERIAL OBJECTS :
Sr. No. Material Description
Object
Number
1 Nil Nil
2 Nil Nil
JUDGMENT
State v. Asad Khan & ors FIR No.16/2012 Page 10 of 87 11
1. By way of the instant judgment, I propose to dispose off the instant case wherein the above mentioned accused persons have been sent up to face trial in this Court for commission of offences punishable under Section 120B IPC, 16/18/20 UAPA, u/s 5 of Explosive Substance Act and u/s 25 Arms Act.
2. Facts in brief: It is alleged that during investigation of UAPA cases, it was came into the notice of DCP Sanjeev Kumar Yadav of Special Cell that certain cadres of Lashkar-e-Taiba (LeT), a banned terrorist organisation, presently based in India, Pakistan and certain West Asian countries have hatched a criminal conspiracy to carry out terrorist strikes at various places in India and in metropolitan cities including Delhi. It was revealed that for this purpose, cadres were being recruited and were being trained at various camps of LeT in Pakistan. Trained cadres alongwith arms, ammunitions and explosives were being infiltrated to India for carrying out terrorist strikes. It is also revealed that underground modules of LeT were also locally procuring explosives, arms and ammunitions for the said purpose and existence of deep rooted conspiracy was revealed which was threatening the unity, integrity, security and sovereignty of India. On the basis of such informations and inputs, the present FIR bearing no. 16 of 2012 was registered at P.S Special Cell and investigation of the present case was entrusted to ACP State v. Asad Khan & ors FIR No.16/2012 Page 11 of 87 12 Manishi Chandra.
3. During investigation, sources were deployed in different parts of the country including Maharashtra. In the meantime, serial bomb blasts in Pune, Maharashtra took place on 01.08.2012 and the source information received about the serial bomb blasts pointed towards involvement of the Indian Mujahidin (IM), another banned terrorist organisation.
During investigation, it was revealed that LeT Commander Fayyaz Kagzi and top IM Commander Riyaz Bhatkal were jointly planning to commit bomb blast in Delhi by setting up a base somewhere in Delhi with the help of their other associates. On the basis of secret information, it was revealed that major terrorist strike plan in Delhi has been planned for which hide out has been taken in Pul Prahlad Pur, an area of South-East Delhi.
ARREST OF ACCUSED ASAD KHAN AND IMRAN KHAN :-
4. During investigation, the teams were deployed and located the hide out of suspects at House no. GD-74, II Floor, Pul Prahlad Pur; surveillance was mounted in the surroundings of GD-74 and on 26.09.2012 at 10.00 p.m, accused Asad Khan and Imran Khan carrying bags on their shoulders were spotted coming from Khanpur side; they both were apprehended and on cursory search of their bags, explosive material and detonators were recovered. During State v. Asad Khan & ors FIR No.16/2012 Page 12 of 87 13 interrogation, it was revealed that they were members of IM and came to Delhi as advance team of joint module of terrorist outfits Indian Mujahiddin and LeT. It was further revealed that their job was to arrange for logistics and material for commiting bomb blasts in Delhi.
RECOVERY FROM ACCUSED IMRAN KHAN :-
5. From the bag of Imran Khan, one black colored polythene containing white granular material (suspected to be explosives) weighing 2.150 Kg and four detonators were recovered.
RECOVERY FROM ACCUSED ASAD KHAN :-
6. From the bag of Asad Khan, black colored polythene containing white granular material (suspected to be explosives) weighing 1.850 Kg and four detonators were recovered.
7. Both accused Imran Khan and Asad Khan disclosed the name of other co-accused persons Irfan Mustafa, Sayed Feroz, Shakir and Ahmed who were also member of their module who were about to join them for execution of serial bomb blasts in Delhi. During investigation, accused Imran Khan and Asad Khan led the police to their rented premises at Pul Prahlad Pur from where they got recovered following articles at their instance:-
State v. Asad Khan & ors FIR No.16/2012 Page 13 of 87 14
1. One light grey colour polythene containing different sized steel balls in different small cardboard packets:-
(a) Ten packets of MBI steel balls, each mentioning 400 balls of 6.35 mm dia;
(b) Seven packets of Hero Delux steel ball mentioning 75 balls each of 6.35 mm dia;
(c) Three packets of metro steel balls mentioning 140 steel balls each of 6.35 mm dia;
(d) Ten packets of Metro steel balls mentioning 140 steel balls each of 4.76 mm dia; and
(e) One small plastic container containing steel balls.
2. One white colour polythene with three small polythene packets containing different size of iron nails. On weighing on electronic machine its weight was found to be 2.300 Kg.
3. One light grey colour polythene containing:-
(a) Fifteen 9 Volt batteries make HIW Hi-waote.
(b) Two 9 Volt batteries make Expocell.
(c) Three electronic wrist watches, two of COSID
and one GASIO. All three wrist watches having red and black electric wire for connection.
(d) 15 pieces of battery connection wires with cap.
(e) 20 pieces of condensers of orange and black colour in transparent polythene.
(f) Two packets of capacitors containing 36 pieces each.
(g) Six small rolls of electronics wires of different colors.
(h) One tube of fevibond .
(i) 15 pieces of circuit plates.
(j) One plas.
(k) One soldering rod.
> One white color polythene containing two small hammers and two adhesive tapes.
> One violet color small plastic tub containing some traces of white power.
State v. Asad Khan & ors FIR No.16/2012 Page 14 of 87 15 > One mixer grinder make Little Queen in red and white color alongwith jars containing some traces of powder.
> One electronic heater.
> Three small tins of Fevicol RS 505 each containing 1 Kg of fevicol.
ARREST OF ACCUSED SAYED FEROZ @
HAMZA :-
8. During investigation, on 30.09.2012, a team present in Maharashtra received secret information about the presence of accused Sayed Feroz @ Hamza that after procuring a consignment of explosive material, accused Sayed Feroz has boarded Jhelum Express train from Ahmed Nagar, Maharastra and would reach Delhi on 01.10.2012. Accordingly, a team under the leadership of SI Vinod Yadav boarded Jhelum Express train to locate accused Sayed Feroz whereas the IO alongwith his team and accused Asad Khan and Imran Khan reached Nizamuddin railway station. As soon as Jhelum Express arrived at Nizamuddin railway station, accused Imran Khan identified accused Sayed Feroz @ Hamza who was apprehended in the railway station itself in the presence of one public witness Samsun Massih. Accused Sayed Feroz was carrying a black coloured bag which on search was found to be containing white coloured granular explosive material weighing 1.080 Kg alongwith two detonators and other articles were recovered. During interrogation, State v. Asad Khan & ors FIR No.16/2012 Page 15 of 87 16 accused Sayed Feroz was revealed to be the member of IM and had come to Delhi to join the advance team of their module namely Asad Khan and Imran Khan. He further disclosed that he was working alongwith his associates on the directions of Fayyaz Kagzi and Riyaz Bhatkal and he collected the explosive material and detonators from his associate Irfan Mustafa.
During investigation, accused Sayed Feroz led the police party to his factory at House No. 1334, Street No.2, Jaan Mohd. Gali, Bheem Pura Camp, Pune and at his pointing out, the incriminating articles being used for preparation of IEDs and its remnants were recovered. The owner of the said factory namely Irfan Qureshi was shown the photographs of accused Imran Khan and Irfan Mustafa who identified accused Irfan Mustafa as the person who used to visit Sayed Feroz at the fctory.
Accused Sayed Feroz also led the police party to the first floor of House no. 487, Keshav Nagar, Kasarwari, Pune, Maharashtra disclosing that he alongwith his other associates stayed there for preparation of IEDs before planting them at different places in Pune on 01.08.2012. The owner of the said house namely Yusuf Sheikh was also present there who was shown the photographs of accused Imran Khan and Irfan Mustafa who identified both of them as the persons who alongwith accused Sayed Feroz and other associates had taken his room on rent from 20.07.2012 to 01.08.2012.
State v. Asad Khan & ors FIR No.16/2012 Page 16 of 87 17 ARREST OF ACCUSED LANDGE IRFAN MUSTAFA :-
9. During investigation, pursuant to the secret information regarding movement of accused Landge Irfan Mustafa in the morning hours of 10.10.2012 at Jaipur, Rajasthan, a team led by Insp. Lalit Mohan Negi reached Jaipur, Rajasthan and apprehended accused Landge Irfan Mustafa from Sindhi Bus Stand, Jaipur at the pointing out of the secret informer and in the presence of one public witness named Roshan Chaudhary. Accused Irfan Mustafa on interrogation also disclosed about his membership of IM and involvement in hatching conspiracy for committing terrorist strikes in Delhi. He further disclosed that he joined the advance team of LeT and IM with his associates Asad Khan, Imran Khan, Sayed Feroz, Shakir, Ahmed and Sayed Maqbool. From the pocket of his shirt, bus ticket from Jaipur to Indore was recovered alongwith colour photograph of accused Asad Khan. On taking search of the bag of the accused Irfan Mustafa, several photocopies of I-
cards, Driving Licence, Voter I-cards and PAN Cards in different names alongwith one envelope containing one hard disk of 80 GB make Samsung, one pen drive having small black thread and one net connect. One book titled "Sitara Jo Toot Gaya" and two small booklets in Urdu were also recovered from his possession.
State v. Asad Khan & ors FIR No.16/2012 Page 17 of 87 18 ARREST OF ACCUSED SAYED MAQBOOL :-
10.During further investigation, on the basis of secret information, on 23.10.2012, a team led by SI Ravinder Joshi reached Hyderabad and arrested accused Sayed Maqbool from Hyderabad Railway Station and from his possession, two mobile phones were recovered. Upon interrogation, accused Sayed Maqbool disclosed being member of Indian Mujahiddin and that he gave training to accused Imran, Asad, Irfan Mustafa and other members of Indian Mujahiddin for preparation of bombs under the directions of Riyaz Bhatkal, Iqbal Bhatkal and Fayyaz Kagzi. Pursuant to his disclosure statement, accused Sayed Maqbool led the police team to Samta Nagar, Near Madina Masjid, Dharmabad, Nanded, Maharashtra from where at his pointing out following articles were recovered:-
1. One CD on which Masjid-e-Nabbi was written;
2. One CD on which Islami Tarikh II was written;
3. One pen drive;
4. One book of stapled papers on the front of which 'Aalmi Tehrik Jihad Ka Tarjuma' was written in Urdu;
5. One book of stapled papers on the front of which 'Kafir Ummate Muslma Ki Dusman Kyo Nahi' was written in Urdu;
6. Three books of Islamic literature in Urdu; and
7. One plastic bottle on which one touch ultra was written in English, containing 5 detonators.
11.During investigation, the exhibits were sent to CFSL for expert opinion and chemical examination of the exhibits confirmed the presence of Ammonium Nitrate in the State v. Asad Khan & ors FIR No.16/2012 Page 18 of 87 19 articles recovered from accused Imran Khan, Asad Khan and Sayed Feroz. So far as other articles i.e. steel balls, detonators, iron nails, 9V batteries, wrist watch battery caps, electric wire, circuit board recovered from accused Imran, Asad Khan, Sayed Feroz and Sayed Maqbool are concerned, the same are found to be sufficient to form components of Improvised Explosive Devices. It is alleged that the detonators recovered from the possession of accused Asad Khan, Imran Khan, Sayed Feroz and Sayed Maqbool were also for the purpose of its use in the bomb blasts.
12.After completion of investigation, charge-sheet was filed against accused Asad Khan, Imran Khan, Sayed Feroz, Landge Irfan Mustafa, Sayed Maqbool for offence punishable u/s 120B IPC and u/s 16/18/18A/18B/20 UAPA, u/s 5 of Explosive Substance Act and u/s 25 Arms Act was filed.
13.During the course of further investigation, accused Zia-ur-
Rehman @ Waqas @ Nabeel Ahmed @ Ahmed and Tehsin Akhtar @ Monu @ Sahil were arrested on 22.03.2014 and on 25.03.2014. Their disclosure statements were recorded in the present FIR who disclosed about their involvement in the conspiracy to carry out bomb blasts in Delhi in the festive season of October, 2012 and for the said purpose, they had visited Delhi and arranged hideouts in Seelampur and Laxmi Nagar area.
State v. Asad Khan & ors FIR No.16/2012 Page 19 of 87 20
14.During the course of trial, vide order dated 26.02.2016, charge was framed against accused Asad Khan @ Kaka, Imran Khan, Langde Irfan Mustafa, Sayed Feroz and Sayed Maqbool for the offences punishable under Section 18/20 of UAPA. Separate charge u/s 4/5 of Explosive Substances Act was framed against accused Asad Khan @ Kaka, Sayed Feroz, Imran Khan and Sayed Maqbool. Separate charges u/s 25 Arms Act was also framed against accused Sayed Feroz. Accused persons pleaded not guilty and claimed trial.
Vide order dated 26.02.2016, accused Zia-ur- Rehman and Tehsin Akhtar @ Monu were discharged from the present case.
15.Vide order on charge dated 26.02.2016, charge was framed against the accused persons. Against accused Imran Khan, Asad Khan, Sayed Feroz and Sayed Maqbool, charge was ordered to be framed u/s 4/5 of Explosive Substances Act but inadvertently in formal charge dated 26.02.2016 framed against accused Asad Khan, Sayed Feroz and Imran Khan, there is only mention of Section 5 of Explosive Substances Act. It appears to be a typographical error and charge should have been framed u/s 4/5 of Explosive Substances Act in terms of the order on charge.
Accordingly, the said typographical error is being rectified at this stage and formal charge framed against accused Imran Khan, Asad Khan, Sayed Feroz and State v. Asad Khan & ors FIR No.16/2012 Page 20 of 87 21 Sayed Maqbool be now read as u/s 4/5 of Explosive Substances Act instead of Section 5 of Explosive Substances Act.
16.In order to prove its case, prosecution has examined as many as 36 witnesses which are as under :-
PW1 Samsun Massih was a taxi driver in Nizamuddin Railway Station. He has deposed that on 01.10.2012, while he was present in the railway station, 5-6 police persons requested him to assist them in apprehending the terrorist who is coming from Pune in Jhelum Express train. He has deposed that at about 9.30 p.m, one person came via stairs near Come-Sum Restaurant and started waiting near the garbage centre and the said person was carrying a black colour bag; he was apprehended and on search of the said bag, it was found to be containing one small bag which was found to be containing a container having white colour powder inside it.
PW1 has further deposed that the police officials took the accused alongwith the bag to their office where the bag was checked thoroughly in which apart from apparels and books, one dabba containing white colour powder, one big mobile phone with touch screen and one jeans pant containing two Aluminium sticks/detonators. He has deposed that all the recovered articles including powder and sticks were seized vide seizure memos Ex. PW 1/A and Ex. PW 1/B. He has correctly identified the State v. Asad Khan & ors FIR No.16/2012 Page 21 of 87 22 accused as Sayed Feroz who was arrested vide arrest memo Ex. PW 1/C. PW1 has proved the personal search memo as Ex. PW 1/D and body inspection memo as Ex. PW 1/E. He has further deposed that accused in his presence has disclosed that recovered explosive materials were parts used for making a bomb. He has deposed that powder substance was weighed in his presence which was found to be about 1 KG 80 Grams of weight, out of which, 20 Grams was drawn as powder sample. He has deposed that one wrist watch was also found in the bag. He has deposed that in his presence, the police kept the remaining powder and detonators in one plastic box each.
PW1 has proved the transparent container containing detonators and wire as Ex. P1/P2. He has proved the black colour travel bag containing wearing clothes as Ex. PW 1/P3 and P4 and metallic wrist watch as Ex. PW1/P5. He has also proved the railway ticket recovered from the personal search of accused and was kept in the purse as Ex. PW1/P6 and P7.
PW2 Arvind Gupta was resident of First Floor, GD- 74A/1, Pul Prahlad Pur. He has deposed that in September, 2012, some officials of P.S Special Cell alongwith accused Imran Khan and Asad Khan came to search the second floor of the building. He accompanied the police officials to the second floor of the house and on taking search of the second floor flat, some polythenes containing batteries with wire, few watches, few nails and the cycle balls were recovered which were seized by the police vide seizure State v. Asad Khan & ors FIR No.16/2012 Page 22 of 87 23 memo Ex. PW 2/A. He has proved the container containing steel balls of different size as Ex. PW 2/P1, one container containing iron nails as Ex. PW 2/P2, one container containing circuit plates, electric soldering instrument, one plier, one wire cutter, six bundles of wires, 15 batteries with connecting wires, components, condensers, capacitor, fifteen 9V batteries, three watches with wires, one fevibond tube with carton cover and other small materials as Ex. PW 2/P3, one white colour polythene containing two hammers and two adhesive tapes as Ex. PW 2/P4, one violet colour small plastic tub as Ex. PW 2/P5, one mixture with jar as Ex. PW 2/P6, one electronic heater as Ex. PW 2/P7 and three small tins of fevicol SR505 as Ex. PW 2/P8. PW3 Sunil Negi was a Property Dealer by profession and on the request of ACP Manishi Chandra, he joined the raiding party on 26.09.2012. He has deposed that on that day, at about 10.00 p.m, accused Asad and Imran Khan were apprehended by the raiding team. He has deposed that on taking search of the bags of both the accused persons, detonators like pencil cell and some white small powder was recovered. He has deposed that both the accused persons alongwith recovered material was brought to Police Station where samples were drawn and all the recovered material alongwith samples were separately sealed.
He has further deposed that from the bag of accused Asad Khan, ID card, Passport, Election card, PAN State v. Asad Khan & ors FIR No.16/2012 Page 23 of 87 24 Card etc were recovered and the said bag containing clothes, polythene containing white small ball shape explosive alongwith four detonators were seized vide memo Ex. PW 3/B. He has deposed that the bag recovered from accused Imran Khan containing clothes and explosive substance alongwith four detonators was also seized vide memo Ex. PW 3/A. He has deposed that that the IO separately seized one leather folder containing passport, voter card, PAN card etc recovered from accused Asad Khan vide memo Ex. PW 3/C. He has further deposed that accused Imran Khan and Asad Khan were arrested vide arrest memo Ex. PW 3/D and Ex. PW 3/E. He has proved the personal search memos as Ex. PW 3/F and G. He has further deposed that during interrogation, both accused persons admitted that they belong to Indian Mujahidin group. He identified the case property i.e. two plastic bags containing white coloured granules recovered from both the accused persons as Ex. PW 3/P1 and P2, container containing four detonators with white colour wire as Ex. PW 3/P3, container containing four detonators with red colour wire as Ex. PW 3/P4 and respective black coloured shoulder bags of accused Imran and Asad as Ex. PW 3/P5 and P6 respectively.
PW4 Irfan Yunus Qureshi was landlord of House no. 1334, Gali no. 2, Bhim Pura, Pune. He has deposed that in 2012, he had let out the aforementioned property to one Feroz for 2-3 months for running a boutique. He has State v. Asad Khan & ors FIR No.16/2012 Page 24 of 87 25 deposed that on 13.10.2012, the police from Delhi came to his house and showed him bag containing two pistols and other articles like wire, cutter etc and thereafter he was taken to police chowki where he was detained in the night and was left in the next morning.
PW4 was cross-examined by Ld. Addl. PP as he resiled from his previous statement. On being cross- examined, he denied that accused Sayed Feroz had also accompanied the police and in his presence, accused Sayed Feroz led the police team to the room inside the house and took out a black coloured bag from the store above the wooden staircase in the room. However, he has admitted that the pistols were containing cartridges but he could not tell its number and that the police had seized the recovered articles vide seizure memo Ex. PW 4/A. After seeing the photographs Ex. PW 4/B, he has deposed that the said photographs were shown to him by the police at Pune and after seeing the photographs, he told them that the person in the photographs is Landge Irfan Mustafa who used to visit the shop/factory of Sayed Feroz in his premises. He correctly identified accused Landge Irfan Mustafa present in the court, however he denied that accused Feroz had also accompanied the police to his premises or that accused Feroz had got the bag containing the pistols, cartridges and other articles recovered in his presence.
He has identified the case property i.e. parcel containing one digital multimeter, one wire cutter, one paper cutter, one continuity tester kept in cardboard packet State v. Asad Khan & ors FIR No.16/2012 Page 25 of 87 26 having word 'Jai Mata Di' electronics continuity tester, two card readers, one black colour wire having green colour jack on its one end and having two jacks at the other end and one electric tape recovered from the bag of accused Feroz as Ex. P1; parcel containing three batteries Maxell Super Power, four batteries make EW High Power, some black and red colour wires having titch button one one end, one electronic timer having the words 'Electronic timer on Delay Series : 175, printed thereon, one electronic circuit wrapped in white transparent tape recovered from the bag of accused Feroz as Ex. P2; parcel containing one pistol, two live cartridges and two test fired cartridges which were recovered from the bag produced by accused Feroz as Ex. P3; one pistol and five live cartridges which were recovered from the bag produced by accused Feroz as Ex. P4 and black colour bag as Ex. P5.
PW5 Jitender Mhaske was also one of the witness to search conducted at the house of PW4 Irfan Qureshi situated at Bhimpura gali, Bhawani Peth, Pune on 13.10.2012. He has further deposed that at that time, accused Feroz was also present there and from above the wooden staircase, one bag was recovered at the instance of accused Feroz, which on checking was found to be containing two pistols, magazines, cartridges, in addition other electronic parts i.e. timers, wire of red and black colour, insolent tap, wire cutter, paper cutter, two card readers and one digital multimeter, electric tester etc. He has deposed that the police prepared sketches of the State v. Asad Khan & ors FIR No.16/2012 Page 26 of 87 27 recovered pistols and seized all the articles in separate pulandas vide seizure memo Ex. PW 4/A. He also identified the case property already exhibited as Ex. P1 to Ex. P5.
PW6 PSI B. C. Gavit was posted as Sub-Inspector at PS Lashkar, Pune City on 13.10.2012. He alongwith HC Rahul Ghadge had accompanied Delhi Police to House No. 1334, Gali no. 2, Jaan Mohd. Street, Bhim Pura where at the pointing out of accused Feroz, one bag was recovered which on checking was found to be containing one pistol with four rounds and another pistol with five rounds apart from electric timer and other electronic materials and the same were kept in separate pulands, sealed with the seal of RJ and seized vide memo Ex. PW 4/A PW7 HC Rahul Ghadke has corroborated the testimony of PW6 PSI B. C. Gavit. He also identified the case property as Ex. P1 to P5.
PW8 SI Vinod Yadav has deposed that on 27.09.2012, pursuant to disclosure statement of accused Asad Khan, on the instructions of the IO, he alongwith HC Shamsher, HC Subhash and Ct. Rajesh went to Pune from where they collected information regarding the members of Indian Mujahidin. He has deposed that on 30.09.2016, they came to know that accused Feroz is going to Delhi in Jhelum Express and pursuant to directions of Insp. Lalit Mohan Negi, he alongwith other team members boarded Jhelum Express and after locating accused Feroz in the train, they kept vigil on him. He has deposed that on 01.10.2012 at State v. Asad Khan & ors FIR No.16/2012 Page 27 of 87 28 about 9.30 p.m, when Jhelum Express reached Delhi, accused Feroz deboarded the train after picking up his black coloured bag and came out of station from Gate No. 1 and stopped near Cumsum Restaurant where IO alongwith staff and co-accused Imran were also present there. He has deposed that after he pointed out the accused, accused Imran also pointed out towards accused Feroz and thereafter, accused Feroz was apprehended by the raiding team. He has deposed that the IO took search of the black coloured bag of the accused Feroz which was found to be containing his clothes, one small cream colour bag in which there was a polythene containing white colour substance. He has deposed that accused Feroz disclosed that white colour substance is meant for making bombs. He has deposed that on further search of the bag, two detonators wrapped in paper was recovered from the pocket of his jeans.
He has further deposed that the case property was seized vide seizure memo Ex. PW 1/A; the IO drawn sample of white colour substance, sealed the same in a plastic jar and also seized two detonators vide seizure memo Ex. PW 1/B. PW8 has proved the arrest memo of accused Feroz as Ex. PW 1/C, personal search memo as Ex. PW 1/D and body inspection memo as Ex. PW 1/E. PW8 has also brought on record the supplementary disclosure statement of accused Sayed Feroz dated 02.10.2012 as Ex. PW 8/A. He has also identified the case property as Ex. PW 1/P1 to Ex. PW 1/P7.
State v. Asad Khan & ors FIR No.16/2012 Page 28 of 87 29 PW9 Amit Chaudhary has deposed that his uncle Sh. Veer Singh is the owner of Property bearing no. GD-74, Pul Prahlad Pur, New Delhi who used to let out the flats on rent. He has further deposed that on 15.09.2012, one Raju approached him to take 1BHK flat on rent, he accordingly showed him Flat No. 4 and the said Raju agreed to take the same on rent for which he paid the requisite advance rent/security. PW9 has further deposed that as instructed by him, said Raju handed over copy of election card as his ID proof. He has deposed that verification of ID proof was still in process, in the meantime, said Raju was apprehended by the police. PW9 has not identified said Raju to be present in the court, he however deposed that after giving the premises on rent, he had gone to the said flat and had seen one of the accused in the said flat and he identified accused Imran Khan as the said person. PW10 Veer Singh is the owner of GD-74, Pul Prahlad Pur, New Delhi. He has corroborated the testimony of PW9 Amit Chaudhary. PW10 Veer Singh identified accused Imran as the person who was found present in his flat. PW11 SI Vinay Pal has deposed that on 30.10.2012, accused Sayed Maqbool, who was in Police Custody, in pursuance to his disclosure statement, alongwith SI Rishi Pal, HC Baney Singh, Ct. Kailash and Ct. Devender went to his house at Dharmabad, Nanded, Maharashtra from where accused got recovered one black colour polythene from iron almirah kept in his room which on checking was found to be containing two CD, two books of staples State v. Asad Khan & ors FIR No.16/2012 Page 29 of 87 30 pages, three books of Islamic Literature, one pen drive and one plastic bottle containing five detonators which were kept in separate sealed pulandas. He has deposed that accused Sayed Maqbool also produced two sims of Vodafone and Tata Docomo, one white polythene containing hard disc make Segate and two jackets which were also kept in separate pulandas and all abovesaid pulandas were seized vide memo Ex. PW 11/B. He has proved the site plan of the place of recovery as Ex. PW 11/C. He has further deposed that on 03.11.2012, they alongwith local police and accused reached House No. 18-1-350/11/58, Gulshan Iqbal Colony, Hyderabad where accused Sayed Maqbool pointed out towards the room at the first floor of the said house and disclosed that after the arrest of his associates, he was hiding himself in the said room. He has deposed that Mohd. Ajimuddin, owner of the said house, also identified accused Sayed Maqbool. He has proved the pointing out memo in this regard as Ex. PW 11/D. PW11 has proved the case property i.e. two jackets as Ex. PW 19/P1 and P2, two CDs as Ex. PW 19/P3 and P4, five detonators as Ex. PW 19/P5, pen drive as Ex. PW 19/P6, one book of stapled papers titled Alami Tehrikh Jihad Ka Tarjuman as Ex. PW 19/P7, one book of stapled papers titled kuffar Ummat Musalman ke dushamn as Ex. PW 19/P8, three books of Islamic literature as Ex. PW 19/P9 to Ex. PW 19/P11, one torn black polythene as State v. Asad Khan & ors FIR No.16/2012 Page 30 of 87 31 Ex. PW 19/P12, the transparent container containing two sim cards as Ex. PW 19/P13 and one hard disc make Segate as Ex. PW 19/P14.
PW12 Maroti Dev Rao Dhuppe was a public witness. He has also deposed regarding seizure of two cassettes, two sim cards, few Urdu books and one small box on 03.11.2012. He identified his signatures on seizure memo Ex. PW 11/B. He has proved his statement recorded u/s 161 CrPC as Ex. PW 12/A. PW12 was cross-examined by Ld. Addl. PP as he resiled from his previous statement. On being cross-examined, he denied that while he was on a walk, he met Insp. G D Kalekar alongwith other staff members and accused Sayed Maqbool on the way or that he voluntarily joined the investigation or that the accused Sayed Maqbool led the police team to his house from where he got recovered one black colour polythene containing two CDs, one Pen Drive, two paper books and one plastic container containing five detonators or that accused also produce two sim cards, one polythene containing hard disc and two half jackets in his presence which were seized vide memo Ex. PW 11/B. PW12 identified accused Sayed Maqbool in the court being resident of Dharmabad, Nanded, Maharashtra and was residing at a distance of 700-800 meters from his house in the same locality.
PW13 Ibrahim Ali Junaid was running a clinic in the name of Shifa Clinic at Chandrayan Gutta road, Hyderabad. He has deposed that accused Sayeed Maqbool State v. Asad Khan & ors FIR No.16/2012 Page 31 of 87 32 used to visit his clinic as patient after his release from jail. He has deposed that 6/7 months prior to recording of his statement in the present case, accused Sayed Maqbool had come to his clinic and asked him to arrange a rented accommodation for his family and he accordingly got arranged the same from his neighbour Mohd. Azimuddin and the accused shifted in the said accommodation with his family members.
PW14 ASI Shamsher Singh has deposited the case property i.e. 9 sealed pulandas in CFSL, CBI, Lodhi Colony vide RC No. 116/21/12 and handed over the acknowledgment to MHC(M).
PW15 ASI Subhash Chander has deposited the case property i.e. 15 sealed pulandas in CFSL, CBI, Lodhi Colony vide RC No. 112/21/12 and handed over the acknowledgment to MHC(M).
PW16 SI Yogesh Kumar was one of the member of the raiding team consisting of himself, Insp. Lalit Mohan Negi, ASI Sunder Gautam, HC Bijender, Ct. Raghubir, Ct. Raj Bahadur alongwith informer constituted on 09.10.2012 on receipt of secret information that accused Irfan Langde is going to Jaipur via Gurgaon and will go somewhere else from Sindhi bus stand in Jaipur and they accordingly went there and on the intervening night of 09/10.10.2012, accused Irfan Langde was apprehended at the pointing out of the secret informer and on interrogation, the accused disclosed about himself being the member of Indian Mujahidin and also about his State v. Asad Khan & ors FIR No.16/2012 Page 32 of 87 33 participation in activities organized by Indian Mujahidin including Pune blast. He has proved the arrest memo of accused Irfan Langde as Ex. PW 16/A, personal search memo as Ex. PW 16/B. He has proved the bus ticket from Jaipur to Indore as Ex. PW 16/P1 which was seized vide memo Ex. PW 16/C. He has proved the seizure memo of black colour bag of the accused as Ex. PW 16/D which on checking was found to be containing two envelopes, hard disc and other belongings of the accused including books. He has proved the disclosure statement of accused as Ex. PW 16/E and supplementary disclosure statement dated 11.10.2012 of accused as Ex. PW 16/F. He has deposed about accused Sayed Feroz that pursuant to disclosure statement, accused Sayed Feroz was taken to Pune on 12.10.2012 and on reaching there, they met SI Ravinder Joshi alongwith his team and on 13.10.2012, they reached house no. 1334, Gali no. 2, Jaan Mohammad Street, Bheempura Camp, Pune i.e. house of accused Sayed Feroz from where accused got recovered one black colour bag from his room in the presence of owner of the said house Irfan Qureshi and public witness Jitender Mahaske and one employee of the factory Munib Manon. The said bag was seized alongwith the 14 articles i.e. two pistols, two magazines, electronic continuity tester, paper cutter and digital multimeter. He has proved the sketch of both the pistols as Ex. PW 16/G and H and seizure memo of all the recovered articles as Ex. PW 4/A. He has further deposed that out of the photographs shown State v. Asad Khan & ors FIR No.16/2012 Page 33 of 87 34 to the owner Irfan Qureshi, he identified accused Irfan Landge Mustafa to be person who used to come and meet accused Sayed Feroz. He has proved the memo in this regard as Ex. PW 4/B. He has further deposed that on 14.10.2012, accused Sayed Feroz led the police party to Survey no. 487, Keshav Nagar, Varun Hotel, Kaiserwadi, Pune where in the presence of owner of the house Yusuf Sheikh, accused Sayed Feroz pointed out towards the room on the first floor of the house where he alongwith his associates had stayed there from 20.07.2012 to 01.08.2012. He has deposed that the owner Yusuf Sheikh has also identified accused Sayed Feroz and also accused Irfan Mustafa and accused Imran Khan in the photographs to be persons who used to visit Sayed Feroz. PW 16 has proved the memos with the photographs as Ex. PW 16/I and Ex. PW 16/J. He has witnessed the disclosure statement of accused Irfan Mustafa vide Ex. PW 16/K. He has identified the case property as Ex. P1 to P5. He also identified one hard disc of 80 GB make Samsung as Ex. PW 16/P1, pen drive as Ex. PW 16/P2, one net connect as Ex. PW 16/P3 and documents i.e. one PAN Card, one I- card of Idea Cellular Ltd in the name of Irfan Mustafa Landge with few loose photocopies and one laminated photocopy of DL in the name of Tulsi Ram as Ex. PW 16/P4 collectively.
PW17 SI Banne Singh has deposed that on 22.10.2012, on receipt of secret information regarding the presence of State v. Asad Khan & ors FIR No.16/2012 Page 34 of 87 35 accused Sayed Maqbool at Hyderabad railway station at about 10.00 p.m, the police team reached there and apprehended accused Sayed Maqbool from Hyderabad railway station at the pointing out of secret informer. PW17 has proved the arrest memo, personal search memo and body inspection memo of the accused as Ex. PW 17/A to Ex. PW 17/C. He has proved the seizure memo with respect to mobile phone make Nokia silver colour and sim card with battery of accused as Ex. PW 17/D and the same have been identified by him as Ex. PW 17/P2 and Ex. PW 17/P1.
PW18 Police Naik K. B. Jugtap was posted at P.S Bosari, Pune on 14.10.2012 and on that day, he joined the investigation with the team of Delhi Police. He has deposed that they went to house near Varun Hotel, Keshav Nagar, Kesarwadi, Pune alongwith accused Sayed Feroz and team of Delhi Police where accused pointed out towards his room at first floor where he alongwith his associates was staying there. PW18 has deposed that Yusuf Sheikh, landlord of the premises was also present there who identified accused Sayed Feroz who stayed in the said room alongwith his friend from 20.07.2012 to 01.08.2012. PW18 has proved the pointing out memo in this regard as Ex. PW 18/A. He has deposed that after seeing two photographs, the landlord Yusuf Sheikh identified both persons who used to visit the room of accused Sayed Feroz.
PW19 ACP G. D. Kolekar was posted as Inspector State v. Asad Khan & ors FIR No.16/2012 Page 35 of 87 36 /Incharge of P.S Dharmabad, District Nanded, Maharashtra and he has corroborated the testimony of PW11 SI Vinay Pal regarding the search of house of accused Sayed Feroz at Samta Nagar, near Madina Masjid, Dharmabad, Nanded. He has also identified the case property as Ex. PW 19/P1 to Ex. PW 19/P14.
PW20 Mahesh Kumar Sharma was Duty Officer in Rajasthan Roadways and was posted at Shindi Camp, bus stand, Jaipur. He has proved the copy of the ticket bearing no. 9394914 dated 10.10.2012 for journey from Jaipur to Indore as Ex. PW 16/P1 on which he made his endorsement Ex. PW20/A. He has also proved the DSA print showing the issuance of ticket as Ex. PW 20/B. PW21 B. Magesh Krishna Ratnam was SSO-II, CFSL CBI has deposed that 26.10.2012, on the request of ACP Manishi Chandra, he prepared the finger/palm print impression slip of accused Asad Khan, Imran Khan and Sayed Feroz which he forwarded to the IO ACP Manishi Chandra alongwith his letter Ex. PW 21/A. He has proved the impression slip pertaining to aforesaid three accused persons as Ex. PW 21/B to Ex. PW 21/D. PW 22 Insp. Sunil Kumar was part of the investigation dated 27.09.2012. He has deposed that pursuant to disclosure statements Ex. PW 22/A and Ex. PW 22/B of accused Asad Khan and Imran Khan, raiding team was prepared consisting of himself, IO, Insp. Lalit Mohan Negi, Insp. Hriday Bhushan, ASI Sukhbir, HC Yashpal Bhati and HC Shamsher and the raiding team alongwith State v. Asad Khan & ors FIR No.16/2012 Page 36 of 87 37 both the accused persons reached flat no. GD-74A/1, II floor, Pul Prahlad Pur where at the pointing out of accused persons, search of the flat was taken in the presence of public witness Arvind Gupta and in search, various polythenes containing different articles i.e. explosive substances were recovered and the same were seized by the IO vide memo Ex. PW 22/A. He has deposed that the seal after use was handed over to him. He has witnessed the supplementary disclosure statements of accused Asad Khan, Imran Khan and Feroz vide Ex. PW 22/C to Ex. PW 22/E. He has identified the case property as Ex. PW 2/P1 to Ex. PW 2/P8.
PW 23 Popat Bandu Deshmukh was Chief Book Officer in Indian Railways. He has deposed that on receipt of letter from ACP, Special Cell alongwith photocopy of Ticket No. R01298590 dated 30.09.2012 with a request to verify the issuance of the said ticket from Pune, he verified the same and issued Certificate Ex. PW 23/A in this regard. He has proved the photocopy of the said ticket as Ex. PW 23/B. PW24 Sh. A. Dey was Principal Scientific Officer, CFSL (Ballistics). He has deposed that on 14.11.2012, on receipt of 15 sealed parcels from ACP Special Cell, he examined the same with scientific aid and test firing conducted in the laboratory. He has proved the detailed report as Ex. PW 24/A. PW25 Sh. J. B. Singh was District Magistrate, South /South-East District in March, 2013. He has deposed that after going through the report u/s 173 CrPC and the State v. Asad Khan & ors FIR No.16/2012 Page 37 of 87 38 relevant material, he accorded sanction u/s 7 of Explosive Substance Act Ex. PW 25/A against accused Asad Khan, Imran Khan, Sayed Feroz, Landge Irfan Mustafa and Sayed Maqbool.
PW26 Insp. Bhushan Kumar Azad was also part of the investigating team. He has witnessed the supplementary disclosure statement of accused Sayed Feroz dated 17.10.2012 vide Ex. PW 26/A recorded by the IO in his presence. He has also witnessed the supplementary disclosure statement of accused Imran and Asad vide Ex. PW 26/B and Ex. PW 26/C recorded by the IO in his presence.
PW27 Sh. G. P. Singh was Additional Secretary(Home) during the period 2013-2015. He has proved the sanction u/s 45 of UAPA accorded by Hon'ble Lieutenant Governor, Delhi against accused Asad Khan, Imran Khan, Sayed Feroz, Landge Irfan Mustafa, Sayed Maqbool, Zia- ur-Rehman and Tehsin Akhtar as Ex. PW 27/A and Ex. PW 27/B and he issued orders dated 01.02.2013 and 24.07.2014.
PW28 Sh. A. D. Shah was Principal Scientific Officer (Finger Print), CFSL. He has deposed that on receipt of letters dated 16.10.2012 and 26.10.2012 from the offemce of Special Cell, he examined the spot i.e. Flat no. GD-74, Second Floor, near Samadhi Sthal, Pul Prahladpur for detection/development of chance prints and developed the chance prints Q1 to Q10 from the spot. He has proved the detailed report in this regard as Ex. PW 28/A. State v. Asad Khan & ors FIR No.16/2012 Page 38 of 87 39 PW29 Yusuf Sheikh was the owner of House no. 487, Keshav Nagar, near Varun Hotel, Kesarwadi, Pune. He has corroborated the statement of PW18 Police Naik K. B. Jugtap regarding the pointing out memo at the instance of accused Sayed Feroz as Ex. PW 18/A. PW29 also identified co-accused Imran Khan and Langde Irfan Mustafa from the photographs Ex. PW 16/I and Ex. PW 16/J as the persons who stayed alongwith accused Sayed Feroz as tenant on the first floor of his house for a period fo 42 days in the year 2012.
PW30 ASI Sanjiv Kumar, MHC(M) of P.S Special Cell has proved the relevant entries regarding deposit of case properties in Register No. 19 as Ex. PW 30/A to Ex. PW 30/F. PW15 has also proved the relevant entries in Register No. 21 regarding deposit of case property in FSL/RFSL as Ex. PW 30/G and Ex. PW 30/H. PW31 SI M. Baxla, MHC(M) of P.S Special Cell has proved the relevant entry in Register No. 21 regarding deposit of case property in CFSL as Ex. PW 31/A. PW32 Insp. Ravinder Joshi was also part of the investigating team. He has also deposed on the lines of investigation and he has corroborated the testimony of SI Yogesh (PW16), SI Banne Singh (PW17) and Police Naik K. B. Jugtap (PW18). He has witnessed the disclosure statement of accused Sayed Maqbool vide Ex. PW 32/A. He identified one black colour pithu bag as Ex. PW 32/P1. He also identified the case property already exhibited as Ex. P1 to P4, Ex. PW 17/P1 and Ex. PW 17/P2.
State v. Asad Khan & ors FIR No.16/2012 Page 39 of 87 40 PW33 Roshan Chaudhary was the public witness who joined the investigating team on 10.10.2012 at Sindhi Bus Stand, Jaipur at the request of officials of Delhi Police. He has deposed that on 10.10.2012, there were two persons at the bus stand raising slogans by the name of Indian Mujahidin and one of those two persons, was carrying one bag of black and red colour who was apprehended by the police and on interrogation, he disclosed his name as Ahmad Qureshi. He has proved the arrest memo Ex. PW 16/A, personal search memo Ex. PW 16/B and also the seizure memo of the said bag as Ex. PW 16/D. PW33 was cross-examined by Ld. Addl. PP as he was resiling from his previous statement. On being cross-examined by Ld. Addl. PP, he has deposed that there was only one accused at Sindhi bus stand and after he was apprehended by the police, he raised the slogan of "Indian Mujahidin Jindabad" and "Bharat ke tukde tukde kar denge" but he could recollect the name of the said accused as Langde Irfan Mustafa. He however proved the ticket Ex. PW 16/P1 which was seized by the police vide memo Ex. PW 16/C. He identified the black and red colour pithu bag as Ex. PW 33/P1. PW33 did not identify accused Langde Irfan Mustafa despite specifically shown to him. PW34 ACP Lalit Mohan Negi has deposed on the lines of investigation qua arrest of accused Langde Irfan Mustafa on 10.10.2012 from Sindhi Bus Stand, Jaipur. He has corroborated the testimony of SI Yogesh (PW16). PW35 DCP Sanjeev Kumar Yadav has deposed that on State v. Asad Khan & ors FIR No.16/2012 Page 40 of 87 41 22.11.2011, while investigating case FIR No. 54/2011, P.S Special Cell, it was disclosed by one of the accused Sayed Zaibuddin @ Zabbi in that case that certain elements of Lashkar-e-Taiba, who were active in India, Pakistan and certain West Asian countries, hatched a criminal conspiracy to carry out terrorist strikes at sensitive installations and metropolitan cities of India including Delhi. He has deposed that it was revealed during interrogation of said accused that the cadres of the said banned organization are being recruited and being trained at various camps located at Pakistan and after completion of their training, they are infiltrated into India, armed with ammunitions and explosives through other neighbouring countries for the purpose of carrying terrorist strikes in India and that a deep rooted conspiracy was being hatched to threaten the unity and sovereignty of India in order to strike terror in the minds of Indian people. He has deposed that he concluded that the revelations made by accused Zaibuddin needs to be investigated and he accordingly prepared a complaint/rukka Ex. PW 35/A and after registration of the present FIR bearing no. 16/2012, the further investigation was carried out by ACP Manishi Chandra. He has deposed that during the course of investigation, the complete record including the copy of FIR, seizure memo, CFSL report and other incriminating evidence pursuant to recovery of weapon from accused Sayed Feroz was placed before him and he accorded sanction u/s 39 Arms Act Ex. PW 35/B against accused State v. Asad Khan & ors FIR No.16/2012 Page 41 of 87 42 Sayed Feroz.
PW36 ACP Manishi Chandra was the Investigating Officer of the present case. He has deposed on the lines of investigation qua arrest of accused persons, recovery/ seizure of incriminating material from the possession of the accused persons. He has corroborated the testimony of SI Vinod Yadav (PW8), SI Vinay Pal (PW11), SI Yogesh (PW16), SI Banne Singh (PW17), Insp. Sunil Kumar (PW22), Insp. Bhushan Kumar Azad (PW26), PW27 Sh. G. P. Singh and SI Ravinder Joshi (PW32). He has proved the letter requisitioning Indian Railways to provide journey details of accused Irfan as Ex. PW 36/C.
17. After conclusion of Prosecution Evidence, statement of accused persons was recorded u/s 313 CrPC wherein they all have denied the entire prosecution case. Accused Asad Khan and Imran Khan have stated that they have been falsely implicated in the present case and infact they were arrested from the bus stand of Hazrat Nizamuddin at about 9.00 p.m on 19.09.2012.
Accused Sayed Feroz has stated that he has been falsely implicated in the present case and was arrested from Pune and not from Safdurjung. He was brought to Delhi in train.
Accused Sayed Maqbool has also stated that he has been falsely implicated in the present case.
Accused Landge Irfan Mustafa has stated that he has been falsely implicated in the present case as he has State v. Asad Khan & ors FIR No.16/2012 Page 42 of 87 43 nothing to do with the alleged offence. He further stated that on 05.10.2022, DCP Sanjeev Yadav, Insp. Lalit Mohan Negi and ACP Manishi Chandra were staying in Novotel Hotel in Mumbai and he was lifted from his in-laws house at Thane on the said date and his parents were called by these police officers and later on, he was falsely implicated in the present case.
18. The accused persons opted not to lead any evidence in their defence.
19. During trial, Ld. Defence counsel for all the accused persons has admitted the FIR of the present case bearing no. 16/2012 of P.S Special Cell as Ex. A1.
ARGUMENTS ON BEHALF OF PROSECUTION :-
20.Sh. Ashok Kumar, Ld. Addl. PP for the State has vehemently contended that the prosecution by way of examination of 36 witnesses and producing the incriminating evidence against the accused persons has successfully been able to prove the charges framed against the accused persons. It is further submitted that prosecution has been able to establish on record that the accused persons were members of the banned terrorist organisation 'Indian Mujahiddin' and they were actively involved in the preparatory act to commit the terrorist act and for that purpose, accused persons remained inter- connected to each other and gave training for the purpose State v. Asad Khan & ors FIR No.16/2012 Page 43 of 87 44 of terrorist act. It is further submitted that prosecution has also been able to prove on record the recovery effected from the accused persons.
ARGUMENTS ON BEHALF OF ACCUSED PERSONS :-
21.Sh. M. S. Khan, Ld. Counsel for all accused persons has argued that all the accused persons have been falsely implicated in the present case and no evidence whatsoever has been produced by the prosecution to prove the guilt of the accused persons.
It is further argued that incriminating articles seized during the investigation are required to be sealed immediately and deposited in Malkhana at the Police Station till the time they are taken out and sent to laboratory. It is further submitted that the seizure and sealing of such articles, impression of seal used on sealed articles is also put on a form commonly known as CFSL Form, so that, at the time of analysis of sealed packets in laboratory, the expert may be able to tally the seal impression on the sealed packet with those appearing on CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure anywhere or during transit till received in the laboratory. It is further submitted that since all the six seizure memos in this case were prepared separately, so there must have been six CFSL forms but interestingly when CFSL form in respect of three seizures were not filled, therefore, in the State v. Asad Khan & ors FIR No.16/2012 Page 44 of 87 45 absence of the same, CFSL expert did not have any option to tally the seal impression on the articles from CFSL form in order to remove tampering of the articles. It is also argued that even the Road Certificate Ex. PW 31/A does not speak or mention about even a single CFSL form being forwarded to the CFSL.
22.It is further argued by ld. Defence counsel that offence of conspiracy is also not proved as prosecution has failed to bring on record existence of any agreement to commit the illegal act through illegal means between the accused persons. It is also argued that the testimony of PW 33 Roshan Chaudhary who witnessed the arrest of accused Irfan Mustafa is not corroborated by PW16 and PW34 about raising of slogans in favour of Indian Mujahiddin. Therefore, offence u/s 18/20 of UAPA is not made out against any of the accused persons.
23.In support of his submissions, Ld. Counsel has placed reliance upon the judgments in the matter of Radha Kishan v. State 2000 (56) DRJ 619, Bijay v. The State (GNCT)( of Delhi Crl. Appal No. 700/2005, Mohd. Ibrahim v. State of NCT of Delhi 2012 SCC OnLine Del 5914, Safidullah v. State 248 DRJ 1993 (25), Bhola Singh v. State of Punjab 2005 SCC OnLine P&H 112, Ravi Kumar v. State 2000 (56) DRF (Suppl) 251, Prem Pal Singh v. State of Delhi 2000 (55) DRJ 759 and Dipakbhai Jagdishchandra Patel v. State of Gujarat & ors MANU/SC/0595/2019. State v. Asad Khan & ors FIR No.16/2012 Page 45 of 87 46 POINT OF DETERMINATION
24. In the present case, the prosecution is required to prove :-
(1) Whether accused persons have conspired :
A: To commit any act preparatory to the commission of a terrorist act at different places in Delhi and Pune.
(2) Whether accused persons in order to commit preparatory act to the commission of a terrorist act :-
A: Accused Landge Irfan Mustafa and Sayed Maqbool stayed together in a rented accommodation at Kasarwadi, Pune and met each other for planning. B: The accused persons planned to commit terrorist activities in Delhi and Pune.
C: The accused persons arranged for logistics, such as batteries, timers, circuit board, registers, capacitors, detonators alongwith other articles for its use in preparing IEDs.
D: Accused persons found in possession of arms and explosive substances.
...(U/Section 18 of UAPA) (2) Whether accused persons were found to be the members of Indian Mujahiddin, a banned terrorist organisation which is involved in committing terrorist acts.
...(U/Section 20 of UAPA) (3) Whether accused Asad Khan, Imran Khan and Sayed Feroz were found in possession of explosive substances i.e. white granular material, detonators alongwith other articles.
...(U/Section 4/5 of Explosive Substance Act) State v. Asad Khan & ors FIR No.16/2012 Page 46 of 87 47
25.In the present case, trial has been faced by accused persons, namely, Asad Khan, Imran Khan, Sayed Feroz, Landge Irfan Mustafa and Sayed Maqbool. Accused Zia- ur-Rehman and Tehsin Akhtar already stands discharged from the present case vide order dated 26.02.2016 passed by the Ld. Predecessor.
26.The present case was registered on the basis of investigation carried out by PS Special Cell in case FIR No. 54/2011 in which accused persons had disclosed about the planning for some terrorist act by LeT throughout India and for that purpose, underground modules of LeT were locally procuring the explosives and arms and ammunitions. It was also revealed from the sources that Fayyaz Kagzi of LeT and Riyaz Bhatkal of Indian Mujahiddin were jointly planning to commit terrorist bomb blasts in Delhi and might have set up a base somewhere in Delhi.
Therefore, on the basis of further investigation and inputs of secret information, accused Asad Khan @ Kaka @ Zahid and accused Imran Khan @ Tabrez @ Raj were apprehended on 26.09.2012 and on taking search of their shoulder bags, explosive substances were recovered. Pursuant to their disclosure statement, they led the police team at their rented premises at Pul Prahlad Pur from where several articles were recovered which were intended to be used for the purpose of making bombs to carry out explosions. In their disclosure statements, they have State v. Asad Khan & ors FIR No.16/2012 Page 47 of 87 48 disclosed the name of Landge Irfan Mustafa and also disclosed about the involvement of other associates and members involved in this conspiracy.
Thereafter, on the basis of secret information, on 01.10.2012, the police team apprehended accused Sayed Feroz from Nizamuddin railway station who had come to Delhi by boarding Jhelum Express train and from his possession, explosive materials were recovered. Accused Sayed Feroz also disclosed about being the member of terrorist organization Indian Mujahiddin and came to Delhi to join accused Asad Khan and Imran Khan. He also led the police party to his house at Bheem Pura Camp, Pune and at his pointing out, the incriminating articles being used for preparation of IEDs and its remnants were recovered. Two pistols alongwith live cartridges were also recovered at the instance of accused Sayed Feroz.
On receipt of secret information, on
10.10.2012, accused Landge Irfan Mustafa was
apprehended from Sindhi Bus Stand, Jaipur, Rajasthan who also disclosed about being the member terrorist organization Indian Mujahiddin and also about his involvement in the conspiracy and incriminating articles were recovered from his possession.
Similarly, on the basis of disclosure statement arrested accused persons, accused Sayed Maqbool was also apprehended on 23.10.2012 from Hyderabad railway station who was also stated to be a member of terrorist State v. Asad Khan & ors FIR No.16/2012 Page 48 of 87 49 organization "Indian Mujahiddin" working on the instructions of Riyaz Bhatkal, Iqbal Bhatkal and Fayyaz Kagzi and from his possession, detonators, two CDs alongwith books etc were recovered containing incriminating materials.
27. On the point of CFSL forms, Ld. defence counsel has argued that in the present case, CFSL forms were not filed with respect to three seizure memos and on all the occasions of recovery, the seal was never handed over to any independent witness. It is submitted that all the six seizure memos were prepared separately, so, there must have been six individual CFSL forms but CFSL form in respect of three seizure memos were not prepared, so, there was no possibility of forwarding the same to CFSL and for CFSL expert to tally the seal impression on the sealed parcels. Therefore, the possibility of tampering cannot be ruled out.
28. On this point, prosecution has examined PW2 Arvind Gupta, PW3 Sunil Negi, PW4 Irfan Yunus Qureshi, PW5 Jitender Mhaske, PW6 PSI B. C. Gavit, PW7 HC Rahul Ghadke, PW11 SI Vinay Pal, PW12 Maroti Dev Rao Dhuppe, PW14 ASI Shamsher Singh, PW15 ASI Subhash Chander, PW16 SI Yogesh Kumar, PW19 ACP G. D. Kolekar and PW22 Insp. Sunil Kumar with respect to the recovery of explosive materials from the accused persons. PW14 ASI Shamsher Singh and PW15 ASI Subhash State v. Asad Khan & ors FIR No.16/2012 Page 49 of 87 50 Chander were the officials who deposited the samples to CFSL but nothing has come out in their testimony to show that samples were tampered and their testimony remained intact and unchallenged. In the cross-examination of any of the above witnesses, Ld. Defence counsel has not been able to breach the testimony of the witnesses on the point of compliance of CFSL forms, handing over of the seal after use and tampering of the sealed pulandas, as has been argued. No specific question has been asked in order to show that there has been any tampering with seized articles after its seizure from the accused persons and depositing the same in the malkhana and from malkhana to CFSL laboratory. Even the CFSL report Ex. PW 24/A prepared by PW24 Sh. A. Dey, Principal Scientific officer, clearly states in Column no. 4 "Description of Parcel(s) and Seal(s): Fifteen sealed parcels. The seals on the parcels were intact and tallied with the specimen seal received in this case. This report in itself has shown that 15 sealed parcels were received in intact condition at CFSL. During the testimony of PW24 Sh. A. Dey, nothing has been asked in his cross-examination as to the seal on the sealed parcels.
29.Merely not having CFSL forms will not serve the purpose. It is upon the accused persons to show that seal upon the parcels was not intact and prevailing circumstances of the seizure lays doubt upon the authenticity of seal and seizure. The accused persons are also required to show the State v. Asad Khan & ors FIR No.16/2012 Page 50 of 87 51 possibility of seal being kept by the IO to do tampering/manipulation on the seized articles. No such material has been brought on record to create doubt upon the seizure of the articles. Moreover the CFSL report has also proved the status of the articles that the same were intact and tallied with the specimen seal received in this case. Therefore, the accused persons have failed to bring on record any infirmity in the testimony of the witnesses who have deposed about the recovery and seizure of the articles from the possession of the accused persons and its onward transmission to CFSL LAW POSITION :-
(i) CRIMINAL CONSPIRACY :-
30.In the present case, the prosecution has alleged that the accused persons conspired together on the instructions of their higher ups i.e. Riyaz Bhatkal, Iqbal Bhatkal and Fayyaz Kagzi in furtherance of a joint module of Indian Mujahiddin and LeT to carry out bomb blasts in Delhi. It has also been alleged that in furtherance of their common intention, the accused persons were carrying the explosive materials alongwith them and also have kept several articles in their home/premises for preparation of IEDs. The prosecution has also alleged that accused persons inter-connected with each other and remained together on a common object for the purpose of making planning /conspiracy to carry out bomb blasts in Delhi by procuring explosive substances for the purpose of bomb explosion. State v. Asad Khan & ors FIR No.16/2012 Page 51 of 87 52
31. Criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. It is also necessary to establish that there is an intention to commit crime and joining of hands with the persons having the same intention. Not only the intention, there has to be an agreement to carry out the object of the intention, which is an offence.
32. For the offence of conspiracy, it is rarely possible to prove conspiracy by direct evidence, therefore, the existence of conspiracy and its objects have to be inferred from the circumstantial evidence and the conduct of the accused persons. To prove the charges of conspiracy, it is not necessary that intended crime was committed or not. Similarly, it is also not necessary that all the conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. In the offence of conspiracy, it is always not known to the conspirators that as to what part each conspirator has to play or as to when a conspirator joined the conspiracy and when he left. In the offence of criminal conspiracy, the unlawful agreement which amounts to conspiracy need not be formal or express but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. At the same, the prosecution is also required State v. Asad Khan & ors FIR No.16/2012 Page 52 of 87 53 to establish that there are cogent and convenient evidence against each of the accused persons charged with the offence of conspiracy. Reliance has been placed upon the judgment of the Hon'ble Apex Court in the matter of State v. Nalini,(1999) 5 SCC 253 (Rajiv Gandhi Assassination case) in Para no. 583 wherein it has been observed here as under:
"........................................................................ ........................................................................ ........................................................................ ...............
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
........................................................................ ........................................................................ ........................................................................ ..................
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
........................................................................ ........................................................................ ............
State v. Asad Khan & ors FIR No.16/2012 Page 53 of 87 54
10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime...."
(ii) UNDER UAPA :-
33. Section 2(m) of UAPA provides the definition of 'Terrorist Organisation' which reads as under :-
2. Definitions :-
...............
................................................................ ........................................................................ ............................................................... .......................
(m) "terrorist organisation" means an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed...."
34. "Terrorist Act" has been defined u/s 15 of UAPA, according to which any act with intention to threaten or likely to threaten the unit, integrity, security or sovereignty of India or with intention to strike terror or likely to strike terror in the people or any section of the people in India by any one of the activities, as mentioned in the section, such as by using bombs, firearms or any other lethal weapons or by any other means of whatever nature that are likely to cause death or injuries, damage to property and damages to the country.
35. 'Indian Mujahiddin' of whose member the accused State v. Asad Khan & ors FIR No.16/2012 Page 54 of 87 55 persons have been projected in the present case, has been listed as a terrorist organisation in the First Schedule of UAPA as it has been found involved in the terrorist acts, as mentioned u/s 15 of UAPA.
36. Section 18 of UAPA provides that whoever conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be held liable. It has been alleged against the accused persons that they conspired to commit bomb blasts in Delhi for which they made preparations and accumulated explosive substances with them in furtherance of their common intention.
37. Section 20 of UAPA provides the punishment for being the member of the terrorist gang or organisation. Accused persons have been shown as members of the banned terrorist organization "Indian Mujahiddin"
(iii) UNDER EXPLOSIVE SUBSTANCE ACT AND ARMS ACT :-
38. Section 4 and Section 5 of Explosive Substance Act, 1908. Section 4 of the Act provides punishment for attempt to cause explosion, or for making or keeping explosives with intent to endanger life or property. Section 5 of the Act provides punishment for making or possession explosives under suspicious circumstances. The recovery State v. Asad Khan & ors FIR No.16/2012 Page 55 of 87 56 effected from the possession of accused persons has been charged under these provisions.
39. Section 25 of Arms Act provides punishment for possession arms and ammunitions without having any valid permit issued by valid competent authority. Recovery of arms has been shown from the possession of accused Sayed Feroz.
40. In several landmark judgments of Hon'ble Superior Court in which it has been held that in such kind of cases where terrorist activities are being carried out by some persons, direct evidence rarely comes and conspiracy of such offences are seldom an open affair, therefore, the existence of the object of conspiracy and the conduct of the accused can only be gathered through circumstantial evidence. This Court is also aware of the fact that such circumstances should be proved so as to form a chain of events from which a conclusion about the guilt of the accused can be safely drawn and hypothesis about the guilt of the accused should be avoided.
41. Therefore, it is to be seen that whether the prosecution has been able to prove the existence of conspiracy between the accused persons, being the members of Indian Mujahiddin, for any act preparatory to the commission of terrorist act and in furtherance of their common object. It is also required to be proved by the prosecution that accused State v. Asad Khan & ors FIR No.16/2012 Page 56 of 87 57 persons were the member of terrorist organisation "Indian Mujahiddin' who were found in possession of explosive substances to carry out terrorist activities.
FINDINGS ROLE OF ACCUSED ASAD KHAN @ KAKA @ ZAHID AND IMRAN KHAN @ TABREZ @ RAJ :-
Preparatory act to the commission of terrorist act with corresponding recoveries :-
42. Accused Asad Khan and Imran Khan being the advance team of the members of banned terrorist organization "Indian Mujahiddin (IM)" and "LeT" came to Delhi for arranging logistics and materials for preparing IEDs to commit bomb blasts in Delhi under the directions of Fayyaz Kagzi and Riyaz Bhatkal. They both were apprehended on 26.09.2012 and at that time, they both were carrying shoulder bags with them. On taking search of the bag of accused Asad Khan, black colored polythene was recovered which was found to be containing white granular material (suspected to be explosives) weighing 1.850 Kg and four detonators and from the bag of accused Imran Khan, one black colored polythene containing white granular material (suspected to be explosives) weighing 2.150 Kg and four detonators were recovered. At the time of this recovery, public witness Sunil Negi (PW3) was also present there who also proved the recovery of explosives effected from the bags of both the accused persons. PW3 State v. Asad Khan & ors FIR No.16/2012 Page 57 of 87 58 Sunil Negi, in his testimony, has deposed that during interrogation, accused Asad Khan and Imran Khan admitted that they are members of terrorist organization Indian Mujahiddin. PW3 also identified the case property recovered from both the accused persons vide seizure memos Ex.PW3/A and Ex. PW 3/B. He also identified the case property i.e. two plastic bags containing white coloured granules recovered from both the accused persons as Ex. PW 3/P1 and P2, containers containing detonators as Ex. PW 3/P3 to Ex. PW 3/P6 including respective black coloured shoulder bags of accused Imran and Asad. Both the bags of accused Imran Khan and Asad Khan were seized vide memo Ex. PW 3/A and Ex. PW 3/B respectively.
43. Thereafter, the police team went to second floor of GD-74, Pul Prahladpur, Delhi and at the instance of both the accused persons, following articles were seized vide seizure memo Ex. PW 2/A :-
1. One light grey colour polythene containing different sized steel balls in different small cardboard packets:-
(a) Ten packets of MBI steel balls, each mentioning 400 balls of 6.35 mm dia;
(b) Seven packets of Hero Delux steel ball mentioning 75 balls each of 6.35 mm dia;
(c) Three packets of metro steel balls mentioning 140 steel balls each of 6.35 mm dia;
(d) Ten packets of Metro steel balls mentioning 140 steel balls each of 4.76 mm dia; and
(e) One small plastic container containing steel balls.
2. One white colour polythene with three small polythene packets containing different size of iron nails. On weighing on electronic machine its weight was found to be 2.300 Kg.
3. One light grey colour polythene containing:-
State v. Asad Khan & ors FIR No.16/2012 Page 58 of 87 59
(a) Fifteen 9 Volt batteries make HIW Hi-waote.
(b) Two 9 Volt batteries make Expocell.
(c) Three electronic wrist watches, two of COSID and one GASIO. All three wrist watches having red and black electric wire for connection.
(d) 15 pieces of battery connection wires with cap.
(e) 20 pieces of condensers of orange and black colour in transparent polythene.
(f) Two packets of capacitors containing 36 pieces each.
(g) Six small rolls of electronics wires of different colors.
(h) One tube of fevibond .
(i) 15 pieces of circuit plates.
(j) One plas.
(k) One soldering rod.
> One white color polythene containing two small hammers and two adhesive tapes.
> One violet color small plastic tub containing some traces of white power.
> One mixer grinder make Little Queen in red and white color alongwith jars containing some traces of powder. > One electronic heater.
> Three small tins of Fevicol RS 505 each containing 1 Kg of fevicol.
PW9 Amit Chaudhary has proved the presence of accused Imran Khan alongwith one Raju in the said tenanted premises from where accused Imran Khan and Asad Khan got effected the above recoveries. PW10 Veer Singh, owner of said property, has also identified the accused Imran Khan on the similar lines as deposed by PW9 Amit Chaudhary. Moreover, PW22 Insp. Sunil also corroborated their testimony. At the time of recovery from second floor of GD-74, Pul Prahladpur, Delhi, public witness Arvind Gupta (PW2) was present who duly identified the case property i.e. container containing steel balls of different size as Ex. PW 2/P1, one container containing iron nails as Ex. PW 2/P2, one container State v. Asad Khan & ors FIR No.16/2012 Page 59 of 87 60 containing circuit plates, electric soldering instrument, one plier, one wire cutter, six bundles of wires, 15 batteries with connecting wires, components, condensers, capacitor, fifteen 9V batteries, three watches with wires, one fevibond tube with carton cover and other small materials as Ex. PW 2/P3, one white colour polythene containing two hammers and two adhesive tapes as Ex. PW 2/P4, one violet colour small plastic tub as Ex. PW 2/P5, one mixture with jar as Ex. PW 2/P6, one electronic heater as Ex. PW 2/P7 and three small tins of fevicol SR505 as Ex. PW 2/P8. Witnesses have proved the recovery at the instance of both the accused persons. Accused persons have not been able to justify the possession of such explosive substances.
ROLE OF ACCUSED SAYED FEROZ @ HAMZA :-
Preparatory act to the commission of terrorist act with corresponding recoveries :-
44. It is alleged against him that accused Sayed Feroz was also member of the banned terrorist organization "Indian Mujahiddin" who came to Delhi to join the advance team of their module namely accused Asad Khan and Imran Khan, who have already reached Delhi pursuant to the joint module of Lashkar-e-Taiba and Indian Mujahiddin. It is alleged that accused Sayed Feroz had collected the explosive materials and detonators from accused Irfan Mustafa.
State v. Asad Khan & ors FIR No.16/2012 Page 60 of 87 61
45. In order to prove his involvement in the alleged offence, the prosecution has examined Samsun Massih (PW1), a taxi driver who witnessed the apprehension of accused Sayed Feroz from Nizamuddin railway station on 30.09.2012 and recovery of explosive materials i.e. white coloured granular explosive material weighing 1.080 Kg alongwith two detonators and other articles from his bag which he was carrying at the time of his arrest. PW1 has proved the seizure memo in this regard as Ex. PW 1/A. PW1 has also deposed that accused Sayed Feroz in his presence has disclosed that recovered explosive materials were parts used for making a bomb.
46. In order to show the travel of accused from Pune to New Delhi, PW1 Samsun Massih also identified the railway ticket as Ex. PW 1/P6.
47.From House No. 1334, Street No.2, Jaan Mohd. Gali, Bheem Pura Camp, Pune, accused got recovered following articles:-
>Digital multimeter;
>One wire cutter;
>One paper cutter;
>Electronic continuity tester;
>Two card readers;
>One black wire containing green plastic at one end and red & white color plastic at another end; >One electric tape;
>Three batteries of Maxwell;
>Four batteries of EW High Power;
>Some wires containing tich buttons at one end; >One electronic timer;
>Electronic circuit;
State v. Asad Khan & ors FIR No.16/2012 Page 61 of 87 62 >One pistol containing four live cartridges in its magazine; >One pistol containing five live cartridges in its magazine.
48. Apart from the testimony of PW1 Samsun Massih, another evidence with respect to recovery of incriminating material is in the form of Jitender Mhaske (PW5) who deposed that he accompanied the police to House no. 1334, Gali no. 2, Bheempura, Bhawani Peth, Pune on 13.10.2012. He has deposed that from the said premises/factory, accused Sayed Feroz got one bag recovered and on checking, it was found to be containing two pistols, magazines, cartridges, in addition with other electronic parts i.e. timers, wire of red and black colour, insolent tap, wire cutter, paper cutter, two card readers and one digital multimeter, electric tester etc. The said recovery has further been identified by landlord of the premises Sh. Irfan Qureshi (PW4) who was the landlord of the said premises. PW5 Jitender Mhaske was present when at the instance of accused Sayed Feroz above recovery was effected. Not only that, PW4 has also identified the photograph of accused Landge Irfan Mustafa Ex. PW 4/B, associate of accused Sayed Feroz who used to visit him at the premises. Moreover, PW6 and PW7 who were officials from Pune Police were also present as independent witnesses and they also corrobroated the version of PW5. PW6 and PW7 have deposed that the said recovery from his premises was effected in the presence of accused himself. Moreover, PW7 has deposed that PW4, landlord of the property was also present at the spot at the time of recovery got effected by accused Sayed Feroz. State v. Asad Khan & ors FIR No.16/2012 Page 62 of 87 63 Further evidence has come on record in the form of testimony of PW29 Yusuf Sheikh, the landlord of accused who has proved his residence at that place and his association with accused Irfan Mustafa and accused Imran Khan. The police witnesses who were part of the raiding team have also proved the recovery from accused Sayed Feroz at the time of his apprehension at Nizamuddin railway station as well as at his instance from the factory where he was working. Accused has not been able to justify the recovery of such explosive substances from him.
ROLE OF ACCUSED LANDGE IRFAN MUSTAFA :-
Preparatory act to the commission of terrorist act with corresponding recoveries :-
49.It is alleged that as per the instructions of Riyaz Bhatkal, he collected the explosive materials and detonators in a bag at Ahmed Nagar railway station. Accused Irfan Mustafa gave explosive material and two detonators to accused Sayed Feroz and instructed him to go to Delhi and join the advance team of accused Asad Khan and Imran Khan for bomb blasts in Delhi. It is also alleged against him that accused Sayed Feroz gave the said detonators and explosive materials to accused Sayed Maqbool. The role of accused Irfan Mustafa is to make coordination between the members of his outfit i.e. other co-accused persons. It is also alleged against him that he prepared fake documents for issuance of sim cards and to procure rented State v. Asad Khan & ors FIR No.16/2012 Page 63 of 87 64 accommodation.
50.Accused Irfan Mustafa was apprehended from Sindhi Bus Stand Jaipur on 10.10.2012 vide arrest memo Ex. PW 16/A. PW33 Roshan Chaudhary is the public witness who was present at the spot when accused Irfan Mustafa was arrested from Sindhi Bus Stand. PW33 has deposed that two persons were present at the bus stand who were raising slogans in the name of "Indian Mujahiddin". He has further deposed that the police officials apprehended one person who was carrying a bag. PW33 has deposed that the name of the said person was Ahmed Qureshi. Since PW33 Roshan Chaudhary has not supported the case of the prosecution, therefore, he was cross-examined by Ld. Addl. PP and in his cross-examination, he deposed that there was only one person at Sindhi Bus stand and after he was apprehended by the police, he raised the slogan of "Indian Mujahiddin Zindabad". PW33 could not recollect the name of the said person as Landge Irfan Mustafa but he identified the bus ticket recovered from the possession of the accused. He also failed to identified the accused on the ground that since ten years have passed, he did not saw the accused and therefore he forgot his fact. Although PW Roshan Chaudhary has not been able to identify the accused but the police officials who were members of the raiding team have proved his arrest on that day. Testimony of PW16 SI Yogesh Kumar is important in this regard. The travelling ticket of accused has been proved on record as State v. Asad Khan & ors FIR No.16/2012 Page 64 of 87 65 Ex. PW 16/P1. Further, PW34 ACP Lalit Mohan Negi has corroborated the testimony of PW16. There is nothing on record to disbelieve the testimony of police witnesses. It is settled law that testimony of police witnesses is also believable if the same remained reliable and therefore, the arrest of accused is proved. His connectivity with co- accused persons is established by public persons when he came to meet accused Imran Khan and Sayed Feroz at their respective premises and surprisingly from these two premises, explosive substances have been recovered and the accused has also been identified by the witnesses through his photograph. PW29 Yusuf Sheikh being the landlord of accused Sayed Feroz has identified accused Imran Khan and Langde Irfan Mustafa from their photographs Ex. PW 16/I and Ex. PW 16/J. ROLE OF ACCUSED SAYED MAQBOOL :-
(i) Preparatory act to the commission of terrorist act and corresponding recoveries :-
51. It is alleged against accused Sayed Maqbool that he came in contact with accused Irfan Mustafa and Asad Khan through accused Imran Khan. It is alleged against him that he gave training to accused Imran Khan, Asad Khan, Irfan Mustafa and other member of Indian Mujahiddin in making bombs under the directions of Riyaz Bhatkal, Iqbal Bhatkal and Fayyaz Kagzi. It is further alleged against him that he was to prepare IEDs with the help of explosive materials and detonators.
State v. Asad Khan & ors FIR No.16/2012 Page 65 of 87 66
52. Accused Sayed Maqbool was arrested from Hyderabad railway station on 23.10.2012. Pursuant to his disclosure statement, accused Sayed Maqbool led the police party to Samta Nagar, Near Madina Masjid, Dharmabad, Nanded, Maharashtra and got recovered following articles :-
1. One CD on which Masjid-e-Nabbi was written;
2. One CD on which Islami Tarikh II was written;
3. One pen drive;
4. One book of stapled papers on the front of which 'Aalmi Tehrik Jihad Ka Tarjuma' was written in Urdu;
4. One book of stapled papers on the front of which 'Kafir Ummate Muslma Ki Dusman Kyo Nahi' was written in Urdu;
5. Three books of Islamic literature in Urdu; and
6. One plastic bottle on which one tough ultra was written in English, containing 5 detonators.
53. So far as evidence against accused Sayed Maqbool qua recovery of above mentioned articles is concerned, prosecution has examined Maroti Dev Rao Dhuppe (PW12) in whose presence the recovery was effected at the instance of accused Sayed Maqbool but in the witness box, he has not supported the case of the prosecution and has deposed that police had shown him the two cassettes, two sim cards and one small box alongwith few Urdu books in the Police Station which were seized by them but he admitted that one seizure memo was prepared. He denied that in his presence, accused Sayed Maqbool got recovered the alleged articles from the iron almirah kept in his house. PW12 has identified accused Sayed Maqbool as the person who is also residing in Dharmabad, Nanded, Maharashtra and his house was situated at a distance of 700-800 meters State v. Asad Khan & ors FIR No.16/2012 Page 66 of 87 67 from his house in the same locality.
54. Another public witness PW13 Ibrahim Ali Junaid who has deposed about the visit of accused Sayed Maqbool in his clinic as patient. He has further deposed that at the request of accused Sayed Maqbool, he helped in arranging a rented accommodation at the house of his neighbour Azimuddin who let out the first floor of the house. It has been established on record that accused Sayed Maqbool occupied the first floor of the premises.
55. So far as recovery of incriminating material from his possession is concerned, the public witness i.e. PW12, who as per the case of the prosecution has witnessed the alleged recovery, has turned hostile and not supported the prosecution case. Although police witnesses have deposed in their testimony about the alleged recovery at the instance of accused Sayed Maqbool from his room but the recovery of above articles comes under serious doubt because of the testimony of public witness. In such circumstances, accused Sayed Maqbool is entitled for benefit of doubt.
56. The benefit of doubt further goes in favour of accused as prosecution has not been able to show that at any point of time, accused was having any association or acquaintance with other co-accused persons, either directly or indirectly, unlike the other co-accused persons. There is no witness to State v. Asad Khan & ors FIR No.16/2012 Page 67 of 87 68 show that he ever visited any of the accused persons at any point of time. Therefore, prosecution has miserably failed to produce sufficient evidence qua the guilt of accused Sayed Maqbool.
Link between the accused persons and existence of conspiracy as a preparatory act to the commission of terrorist act :-
57. In the present case, charge has been framed the accused persons for committing the preparatory act to the commission of a terrorist act in furtherance of a conspiracy in which the accused persons possessed explosive substances to carry out bomb blast in Delhi for which they met each other and assembled at the premises of each other. The meeting of mind has been shown through their presence in the house and factory of accused Sayed Feroz.
58. It has been held by Hon'ble Supreme Court in V. C. Shukla v. State (Delhi Admn.) (1980) 2 SCC 665 that "
in most cases, it is difficult to get direct evidence of an agreement to establish the conspiracy but the conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence".
Similarly, in Noor Mohammad Yusuf Momin v. State of Maharashtra 1970(1) SCC 696, Hon'ble Supreme court has held that " in most cases proof of conspiracy is largely inferential though the inference, must be founded on solid State v. Asad Khan & ors FIR No.16/2012 Page 68 of 87 69 facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material".
59. It is well established principle of law that in order to check the veracity of the conspiracy and the charges thereof, there has to be a connectivity between the accused persons for a common object so that their conduct could speak in volume about the existence of any conspiracy. In the offence of criminal conspiracy, the unlawful agreement need not be formal or express but may be inherent in and inferred from the circumstances, especially from the acts and conduct of the conspirators.
60. Inter-se connectivity between accused Asad Khan and Imran Khan is established by PW3 Sunil Negi who witnessed the arrest of accused Asad Khan and Imran Khan and recovery from their respective shoulder bags which they were carrying at the time of their apprehension.
61. This has been the case of the prosecution that before coming to Delhi, accused Asad Khan and Imran Khan were staying with their associates, namely, Irfan Mustafa, Sayed Feroz and Sayed Maqbool in Kasarwadi, Pune. In this regard, testimony of Sh. Yusuf Sheikh (PW29) is important. In his testimony, he has deposed that he was landlord of the house i.e. Survey No. 487, Keshav Nagar, near Varun Hotel, Kasarwadi, Pune which he let out to State v. Asad Khan & ors FIR No.16/2012 Page 69 of 87 70 accused Sayed Feroz for a period of three months in the year 2012 on the pretext that he has to do the work of mobile tower. The pointing out memo of the said premises has been proved by PW29 as Ex. PW 18/A. PW29 Yusuf Sheikh has further deposed that he identified accused Imran Khan and Landge Irfan Mustafa in the photographs Ex. PW 16/I and J respectively as the persons who alongwith accused Sayed Feroz were staying as tenant at the first floor of the house.
62. In order to further show the connectivity between the accused persons, testimony of Sh. Irfan Yunus (PW4) is also important. PW4 Irfan Yunus has deposed that he is the landlord of House bearing no. 1334, Gali no. 2, Bheempura, Pune which he let out to accused Sayed Feroz for 2/3 months for running a boutique. PW4 also identified accused Irfan Mustafa in the photograph Ex. PW 4/B as the same person who used to visit the shop/factory of Sayed Feroz in his premises. He also identified accused Sayed Feroz being his tenant, therefore, the testimony of this witness is sufficient to show that accused Irfan Mustafa was known to accused Sayed Feroz and they used to meet with each other. The connectivity of accused Asad Khan and Imran Khan has also been proved when they were coming together and arrested alongwith explosive substances, therefore, their connectivity and acquaintance with accused Irfan Mustafa and Sayed Feroz has also been established by PW29 Yusuf Sheikh who has also deposed State v. Asad Khan & ors FIR No.16/2012 Page 70 of 87 71 that accused Irfan Mustafa, Sayed Feroz and Imran Khan used to stay in the rented flat.
63. In order to show the connectivity of accused Sayed Maqbool with other co-accused persons, the prosecution has examined two witnesses i.e. Maroti Dev Rao Dhuppe (PW12) and Ibrahim Ali Junaid (PW13). PW12 is the witness to the recovery of the polythene containing 05 detonators and some Urdu /Islamic literature in the form of CDs and books from the almirah of the accused kept by him in his house. This witness turned hostile and even have not supported the prosecution case on the point of recovery from the house of the accused. In his deposition, he has deposed that police called him in the Police Station and had showed him these articles and obtained his signatures. Another witness is Ibrahim Ali Junaid (PW13). He has only deposed about helping accused Sayed Maqbool in arranging rented accommodation through one Mohd. Azimuddin, the landlord of the accused. Except these two public witnesses, no other witness except the police officials has been examined to show the recovery of incriminating material at the behest of the accused. Although police witnesses have supported the recovery but the public witness PW12 who is the main witness to show his connectivity with the explosive materials had not supported the case of the prosecution to show his involvement in the alleged conspiracy. There is no witness examined by the prosecution who has seen him in the State v. Asad Khan & ors FIR No.16/2012 Page 71 of 87 72 company of other co-accused persons, namely, Asad Khan, Imran Khan, Irfan Mustafa and Sayed Feroz in order to show that in some way or the other, he was having acquaintance with them so that an inference of meeting of minds between them can be drawn. The recovery of material evidence i.e. explosive substances or articles used to prepare IEDs, which has allegedly been recovered from accused, has also not been proved, so there is no possibility to draw an inference against accused Sayed Maqbool of having been part of the same module to carry out terrorist activities in Delhi. Therefore, there is no evidence of accused Sayed Maqbool being part of the conspiracy.
64.Moreover, in the case of accused Landge Irfan Mustafa, there is no recovery of any explosive material has been effected. The only evidence to link the accused with the alleged offence is the testimony of PW 29 Yusuf Sheikh who identified the accused in the photograph being the same person who used to visit accused Sayed Feroz in his rented accommodation alongwith accused Imran. The another public witness PW4 Irfan Yunus has also identified the photograph of accused Irfan Mustafa Ex. PW 4/B as the person who used to visit accused Sayed Feroz in the shop/factory which he let out to accused Sayed Feroz.
65.Although, there is no recovery of any explosive substance or material from the possession of accused Irfan Mustafa State v. Asad Khan & ors FIR No.16/2012 Page 72 of 87 73 but he has been identified by witnesses at both the premises which were occupied by co-accused from where explosive materials were recovered. He was seen in the company of co-accused persons from whom recovery was effected when they were travelling. Therefore, inference can be drawn that accused Irfan Mustafa was planning with accused Imran and Sayed Feroz and was part of the same conspiracy to commit bomb blast in Delhi. Conduct of accused is a material incriminating evidence against him. This Court is conscious of this fact that offence of criminal conspiracy is an unlawful agreement which need not to be formal or express but may be inferred from the circumstances established form the acts and conduct of the conspirators. At the same time, prosecution is also required to establish that there are cogent and convenient evidence against each of the accused persons charged with the offence of conspiracy. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence but there must be some material against the accused to connect him with alleged conspiracy. Presence of accused is established by witnesses on several occasions. The onus was upon the accused as to why he was present at those premises from where explosive substances were recovered and why he was in the company of these persons who were apprehended alongwith explosive substances.
66.In the present case, prosecution has been able to prove on State v. Asad Khan & ors FIR No.16/2012 Page 73 of 87 74 record the cogent or convenient evidence against the accused Irfan Mustafa to link him with the alleged conspiracy.
67. In order to show the existence of conspiracy between the accused persons, testimony of Popat Bandu Deshmukh (PW23) is important. He was Chief Book Officer in Indian Railways and has proved the recovery of ticket no. R01298590 dated 30.09.2012 from Pune to Delhi from accused Sayed Feroz to show that he came to Delhi from Pune, as per pre-planned conspiracy with the accused persons. PW23 had issued the letter/certificate in this regard. The existence of conspiracy as alleged against the accused persons finds support from the fact that accused Sayed Feroz was apprehended by the police party from Nizamuddin railway station vide arrest memo Ex. PW 1/C when he was coming to Delhi in Jhelum Express train. The recovery of explosive articles from the possession of accused Asad Khan, Imran Khan and Sayed Feroz and their contact with accused Irfan Mustafa shows that accused persons were coming to Delhi with some common object which further corroborates the theory of prosecution that they were hatching a criminal conspiracy to carry out some terrorist acts in Delhi, otherwise why would the accused persons carry such explosive substances with them. Accused Irfan Mustafa met them exactly at those places from where explosive substances were recovered.
State v. Asad Khan & ors FIR No.16/2012 Page 74 of 87 75 OFFENCE UNDER SECTION 20 UAPA :-
68.As per the testimony of PW35 DCP Sanjeev Kumar Yadav, during the investigation of case FIR No. 54/2011 of P.S Special Cell under the various provisions of UAPA, the accused of the said case namely Zabiuddin disclosed that certain elements of Lashkar-e-Taiba, a banned terrorist organization, which was active in India, Pakistan and certain West Asian countries have hatched a criminal conspiracy to carry out terrorist strikes at various sensitive places in India and in metropolitan cities including Delhi. He further disclosed that for this purpose, cadres were being recruited and were being trained at various camps of LeT in Pakistan. He disclosed that trained cadres alongwith arms, ammunitions and explosives were being infiltrated to India for carrying out terrorist strikes. It is also alleged that a deep rooted conspiracy has been hatched. Pursuant to the said disclosure statement, PW35 DCP Sanjeev Kumar Yadav prepared rukka Ex. PW 35/A of the present case, got the FIR registered and handed over the investigation to PW36 ACP Manishi Chandra.
The case of the prosecution revolves around the fact that Indian Mujahiddin, a banned terrorist organisation, planning to carry out terrorist attacks in India whereas in the charge-sheet of the present case, it has come out that Fayyaz Kagzi of LeT came into the contact of Riyaz Bhatkal, Iqbal Bhatkal, top Commanders of Indian Mujahiddin and they were jointly planning to commit terrorist strikes and might have also set up their State v. Asad Khan & ors FIR No.16/2012 Page 75 of 87 76 base somewhere in Delhi. The witnesses have stated nothing about the banned terrorist organization Indian Mujahiddin. From the testimony of the witnesses, it is not clear that actually the present case is about the module of LeT or Indian Mujahiddin. It has not come in the evidence produced by the prosecution that actually the accused persons belongs to which group or organization. Although in the testimony of one of the public witness PW33 Roshan Chaudhary, who witnessed the apprehension of accused Irfan Mustafa, it has come that accused Irfan Mustafa was raising slogans in the name of Indian Mujahiddin but the police witnesses who were members of the raiding team and were present there have not stated anything in this regard that accused Irfan Mustafa was raising slogans at the time of his arrest. It creates serious doubt upon the testimony of PW33 Roshan Chaudhary and even PW33 failed to identified accused Irfan Mustafa as the same who was raising slogans. Moreover the IO of the present case also not clarified in his testimony about the involvement of a particular terrorist organization to which accused belonged. Similar is the case for another accused persons against whom also there is no clear cut evidence to show that they belong to a particular terrorist organization.
69.LeT and Indian Mujahiddin both are declared as Terrorist Organisations under Schedule-I of UAPA. Evidences are there to establish that all the accused persons were acting towards the achievement of common object. Being the State v. Asad Khan & ors FIR No.16/2012 Page 76 of 87 77 members of terrorist organization, seldom be an open affair, anyone joining such terror outfit would be concealing his identity and acts. It cannot be expected that membership would be offered in public. It is only from the conduct, facts and circumstances and their association, inference can be drawn about their association or involvement with some terrorist organization.
70.But there is no evidence to show the connectivity of the accused persons with Pakistan or any banned terrorist organization as no such incriminating material has been produced to show their affiliation or membership for any particular terrorist organization.
71.Therefore, the question of proving the charges u/s 20 of UAPA that the accused persons were members of particular terrorist gang or organization involved in terrorist acts is not at all established.
(iv) OFFENCE UNDER SECTION 18 OF UAPA :-
72.It is correct that prosecution has not been able to show any evidence with respect to the membership of the accused persons with any terrorist organization, as per section 20 of UAPA but that does mean that without the patronage of terrorist organization, a person cannot carry out the terrorist activities.
The evidence in the present case might have been deficient to show the membership or affiliation with State v. Asad Khan & ors FIR No.16/2012 Page 77 of 87 78 any terrorist organization but this Court is also conscious of the fact that it is not easy to bring out any direct evidence of membership of a person for his affiliation with terrorist organization or gang. Even without having proved the membership, the charges for offence punishable u/s 18 of UAPA for hatching a criminal conspiracy to do an act preparatory to the commission of a terrorist act, can be proved. In this respect, the conduct of the accused persons, their inter-se connectivity and the nature of incriminating material recovered from the possession of the accused persons and sufficiency of corroborating evidence would be key factors in proving the charges u/s 18 of UAPA.
73.In the present case, explosive substances were recovered from the possession of accused Asad Khan, Imran Khan and Sayed Feroz during the search of their respective bags and also from the respective premises at their instance. The testimony of witnesses, either police or public witnesses, has been authenticated by the evidence of corroborative value. The recovery effected from their possession has already been proved as 'explosive substances' by PW24 Sh. A. Dey, Principal Scientific Officer, CFSL by way of his detailed report Ex. PW 24/A. Hence, there remains no doubt and it stands proved that the accused persons were carrying the explosive substances within the meaning of Explosive Substances Act and such huge recovery from their possession can easily be presumed to be for the purpose to carry out some explosion or for illegal means. State v. Asad Khan & ors FIR No.16/2012 Page 78 of 87 79 Due to presence of accused Irfan Mustafa with them, an inference can easily be drawn against him about his involvement.
74.The burden of proof is shifted upon the accused persons to rebut that they were not carrying the explosive substances for illegal purpose and not involved in any illegal activity. The accused persons during cross-examination of the concerned witnesses have failed to shift this burden of proof and failed to show the purpose for possessing or association with such huge quantity of explosives.
75. Mere recovery of explosive substances would not be sufficient to term the alleged offence as a preparatory act to the commission of terrorist act for which prosecution has examined Irfan Yunus (PW4) and Yusuf Sheikh (PW29). PW29 identified accused Imran Khan and Landge Irfan Mustafa in the photographs Ex. PW 16/I and Ex. PW 16/J as the persons who alongwith accused Sayed Feroz were staying as tenant at the first floor of his house. PW4 Irfan Yunus was the landlord of House bearing no. 1334, Gali no. 2, Bheempura, Pune and he let out the said premises to accused Sayed Feroz for running a boutique for 2/3 months. He also identified accused Irfan Mustafa in the photograph Ex. PW 4/B as the same person who used to visit the shop/factory of Sayed Feroz in his premises. The testimony of PW4 and PW29 shows that the act of the accused persons were not merely of recovery of explosive State v. Asad Khan & ors FIR No.16/2012 Page 79 of 87 80 substances from their possession but also shows that the accused persons were known to each other and having knowledge of having explosive substance with each other can also be inferred. More so, the premises where accused persons were seen together are also the places from where the recovery of explosive substances was effected and that has been corroborated by the testimony of respective public witnesses. As has been discussed above, the conspiracy is hatched in secrecy and it is difficult to find out direct evidence to prove the same. Therefore, in order to prove the conspiracy between the accused persons, their inter-se connectivity, act and conduct of the accused persons would be sufficient to show the existence of common object between them and here also in this case, the corresponding recovery and their connectivity with each other is sufficient to show the existence of conspiracy between accused Asad Khan, Imran Khan, Sayed Feroz and Landge Irfan Mustafa and it not only indicates towards the act preparatory to the commission of a terrorist act within the meaning of Section 18 of UAPA.
76. Hence, prosecution has been successfully able to prove its against accused Asad Khan, Imran Khan, Sayed Feroz and Landge Irfan Mustafa for the offence punishable u/s 18 of UAPA and are held liable.
OFFENCE UNDER EXPLOSIVE SUBSTANCES
ACT, 1908 :-
State v. Asad Khan & ors
FIR No.16/2012 Page 80 of 87
81
77. Alternative charge u/s 4/5 of Explosive Substance Act, 1908 has also been framed against accused Sayed Maqbool, Asad Khan @ Kaka, Sayed Feroz and Imran Khan being found in possession of explosives under the suspected circumstances which was aimed at creating/carrying out bomb blasts in Delhi.
78. In order to bring home the offence u/s 5 of Explosive Substance Act, the prosecution is required to prove :
I. That the substance in question is explosive substance;
II. That the accused makes or knowingly has in possession or under his control any explosive substance; III. That the accused does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for an unlawful object.
79. The burden of proof on these ingredients is on prosecution.
The moment prosecution has discharged the burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object after he takes that plea.
80. Section 2 of the Explosive Substance Act, 1908 provides the definition of Explosive Substance which is as under :-
(a) the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any State v. Asad Khan & ors FIR No.16/2012 Page 81 of 87 82 explosion in or with any explosive substance; also any part of any such apparatus, machine or implement;
(b) the expression "special category explosive substance" shall be deemed to include research development explosive (RDX), penta erythritol tetra nitrate (PETN), high melting explosive (HMX), tri nitro toluene (TNT), low temperature plastic explosive (LTPE), composition exploding (CE) (2, 4, 6 phenyl methyl nitramine or tetryl), OCTOL (mixture of high melting explosive and tri nitro toluene), plastic explosive kirkee -1 (PEK-
1) and RDX/TNT compounds and other similar type of explosives and a combination thereof and remote control devices causing explosion and any other substance and a combination thereof which the Central Government may, by notification in the Official Gazette, specify or the purposes of this Act.
81.The 'possession' within the meaning of Section 5 of Explosive Substance Act means the 'conscious possession'. The substance seized in the present case is not minute or small in quantity, they were in large quantities. Explosive material and apparatus alongwith detonators have been recovered either from the direct possession of accused Asad Khan, Imran Khan and Sayed Feroz or from the premises occupied by them. In such circumstances and these recoveries have been proved by the public witnesses, therefore, it can easily be held that the accused persons were in conscious possession of the explosive substances. Accused persons have not been able to show any licence or permit to possess such explosive substances with them. In such circumstances, Section 9 of Indian Evidence Act came into play and give rise to a reasonable presumption that possession is not for a lawful object.
82.In the present case, whether the nature of articles recovered from the possession of the accused persons falls State v. Asad Khan & ors FIR No.16/2012 Page 82 of 87 83 under the definition of Section 2 (a) of The Explosive Substance Act for which testimony of Principal Scientific Officer, CFSL Sh. A. Dey (PW24) is important. In Para no. 8 of the CFSL report Ex. PW 24/A, it has specifically been observed :
"...8. Result of Examination :
On the basis of examination carried out in the laboratory with the scientific aids and test firing conducted in the laboratory, the result of examination are as under : (I) The Physico Chemical examination confirm the presence of "Ammonium Nitrate" in the contents of parcel no.1, 3 and 9.
(ii) In the contents of parcel no.2, 4, 10 are electric detonators, Parcel no. 15 is plain detonators and are live ones.
(iii) The Ammonium Nitrate, steel balls, detonators, iron nails, 9V batteries, wrist watch, battery caps, electric wire, circuit board contained in parcel no.1, 2,3,4,5,6,7,8,9,10,11,12 & 15 could form components of "Improvised Explosive device/s". IED (Improvised Explosive Device) is therefore Explosive Substances, as defined in the Explosive Substances Act, 1908.
(iv) The 7.65mm pistol (marked W/1 & W/2) contained in the parcel no.13 and 14 respectively are 'Firearms' as defined in the Arms Act 1959 and are in working order.
(v) The nine 7.65mm cartridges (C/1 to C/9) contained (C/1 to C/4 four & C/5 to C/9 five) in the parcel no.13 and 14 respectively are 'Ammunitions' as defined in the Arms Act 1959 and were live ones...."
83.As per the CFSL report Ex. PW 24/A, it is clearly established that the articles recovered from the possession of the accused persons were sent to CFSL in the form of 15 sealed parcels and after conducting physical examination, State v. Asad Khan & ors FIR No.16/2012 Page 83 of 87 84 chemical analysis and test firing the same, it was established that the recovered articles are components of "Improvised Explosive Devices" which is 'explosive substances' as defined in the Explosive Substances Act, 1908. Therefore, there remains no doubt that the articles recovered from the possession of accused Sayed Maqbool, Asad Khan @ Kaka, Sayed Feroz and Imran Khan were explosive substances and accused persons were having conscious possession of the same as recovery has been effected from their possession or at their instance which has also been corroborated by the other prosecution witnesses.
84.However, charge in the present case has been framed under Section 4/5 of Explosive Substance Act against accused Asad Khan, Imran Khan and Sayed Feroz but as the present case is merely of possession for doing the preparatory terrorist act and no act or incident had taken place due to the use of such explosive substances recovered from the possession of the accused persons, therefore, the case falls only under Section 5 of Explosive Substance Act.
85.In view of the above discussions, charge u/s 5 of Explosive Substance Act has been successfully proved by the prosecution against accused Asad Khan @ Kaka @ Zahid, Imran Khan @ Tabrez @ Raj and Sayed Feroz @ Hamza @ Sunny and are held liable.
State v. Asad Khan & ors FIR No.16/2012 Page 84 of 87 85 OFFENCE UNDER 25 ARMS ACT :-
86.In the present case, fire arms i.e. two pistols and nine live cartridges i.e. one pistol with four live cartridges and another pistol with five live cartridges, were recovered at the instance of accused Sayed Feroz from his premises/shop bearing no. 1334, Gali no. 2, Bhim Pura, Pune in the presence of public witnesses, namely PW4 Irfan Yunus Qureshi and PW5 Jitender Mhaske. During the cross-examination of the concerned witnesses, the accused Sayed Feroz has failed to establish that he was in possession of a valid licence to keep the firearms with him.
87.Therefore, it is successfully established that accused Sayed Feroz was in possession of arms and ammunitions without having any valid permit issued by the Government authority, in terms of definition provided under Section 25 of the Arms Act. Hence, charge u/s 25 Arms Act stands proved against accused Sayed Feroz and is held liable.
CONCLUSION :-
88. As a cumulative effect of the above detailed discussion, accused Asad Khan @ Kaka @ Zahid, Imran Khan @ Tabrez @ Raj, Sayed Feroz @ Hamza @ Sunny and Landge Irfan Mustafa @ Zaki @ Ashok are held guilty for the offence punishable u/s 18 of UAPA and are convicted thereunder. They are however acquitted of the offence punishable u/s 20 of UAPA.
State v. Asad Khan & ors FIR No.16/2012 Page 85 of 87 86 Accused Asad Khan @ Kaka @ Zahid, Imran Khan @ Tabrez @ Raj and Sayed Feroz @ Hamza @ Sunny are also held guilty for the offence punishable u/s 5 of the Explosive Substance Act and are convicted thereunder.
Accused Sayed Feroz is also held guilty for the offence punishable u/s 25 of Arms Act and is convicted thereunder.
89. However, prosecution has miserably failed to prove its case against accused Sayed Maqbool for the offence punishable u/s 18/20 of UAPA and also u/s 4/5 of Explosive Substance Act.
Accused Sayed Maqbool is accordingly acquitted of the offences charged with. He is in judicial custody. He be released forthwith if not required in any other case. He is however directed to furnish PB/SB in the sum of Rs.25,000/- subject to the satisfaction of this court, in terms of compliance of Section 437A CrPC.
90. In terms of the directions of Hon'ble High Court in the matter of Karan Singh v. State of NCT of Delhi in Crl. A. No. 352/2020 dated 27.11.2020, convicts Asad Khan, Imran Khan, Landge Irfan Mustafa and Sayed Feroz are directed to file their respective affidavits of their assets and income alongwith directions to State through Ld. Addl. PP to file a report/affidavit with regard to expenses incurred State v. Asad Khan & ors FIR No.16/2012 Page 86 of 87 87 by State for the litigation in the present case.
91. Convicts/accused persons, namely, Asad Khan @ Kaka @ Zahid, Imran Khan @ Tabrez @ Raj, Sayed Feroz @ Hamza @ Sunny and Landge Irfan Mustafa @ Zaki @ Ashok shall be heard on the point of sentence on the date fixed.
Announced in the open court on 24.07.2023 (Sanjay Khanagwal) Additional Sessions Judge-02:
New Delhi District: PHC:ND State v. Asad Khan & ors FIR No.16/2012 Page 87 of 87