Delhi District Court
Of Legal Affairs,West Bengal vs Anil Kumar Bhunja & Ors Air on 14 January, 2008
IN THE COURT OF SH BABU LAL ADDL SESSIONS JUDGE
DELHI
SC No 35, 36 , 37 & 38/06
The State Versus
Case No I
(1) Tariq Ahmed Dar
(2)Mohd Hussain Fazli
(3) Mohd Rafiq Shah.
FIR No 560/05
P.S. Sarojini Nagar
U/s 302/307/120B IPC &
16/17/8/20/23 of Unlawful
Activities Prevention Act
Case No II
(1)Tariq Ahmed Dar
(2)Mohd Rafiq Shah
FIR No 533/05
P.S. Paharganj
U/s 302/207/120 B IPC
Case No III
(1)Tariq Ahmed Dar
(2) Mohd Rafiq Shah
FIR No 1120/05
PS Kalkaji
307/120B IPC & 3,4,5 & 6 of
Explosive Act & Section 3 & 4 of
D.P.P. Act
Case No IV
(1)Gulam Ahmed Khan
(2)Farooque Ahmed
(3) Tariq Ahmed Dar
FIR No 149/05
PS Lodhi Colony
U/s 17 & 18 of Unlawful Activities
(Prevention) Act
1
ORDER ON CHARGE
1.Vide this common order, I shall dispose of question regarding framing of charges against accused in all the four cases referred to above inasmuch as they arise out of the alleged conspiracy to carry out bomb blasts in Delhi. On 29.10.05 three bomb blasts had taken place in Delhi;- one in Paharganj Market, another in Sarojini Nagar Market and third one in bus No DLIP B 2719 in Kalkaji, therefore, police came into action. Three different cases were registered in three police stations as referred to above and investigation was conducted by the police. In the meantime, Intelligence Agencies had also come into action. Intelligence Agencies in India came to know that a 'Thuraya' saellite phone ( a UAE based International Telecom Service Provider Co. not operative in India) was in conversation with some person in India. It was revealed that there were two IMEI numbers these two satellite cell phones i.e. 008821621523999 and 08821621523994 allegedly used by Abu Al Kama and Abu Ozefa, operative of Laishkare Toiba ( LeT). It was revealed that these two cell phones of aforesaid IMEI have been in contact with a person in India on mobile phone No 9906719815 in Jammu and Kashmir. Accordingly conversation between IMEI 008821621523999 and 9906719815 were intercepted on 1.11.05 and 4.11.05. It was allegedly found that accused Tariq Ahmed Dar was the person who was in communication with Abu Al Kama, operative of Laishkare Toiba. Accused Tariq Ahmed Dar in conversation on 1.11.05 was found conveying to Abu Al Kama that in Delhi there were some bazars where cameras were not fitted and where identification of any person would not be possible '' Is Wali 2 Jagah par koi camera nahi hote. Secondly Abu Al Kama is alleged to have asked him not to claim responsibility for those blasts. Accused Tariq hmed Dar allegedly asked him that question of taking responsibility did not arise. Again talks between these two phones as referred to above were intercepted on 4.11.05 by Intelligence Agencies. In that conversation, accused Tariq Ahmed Dar is alleged to have conveyed to Abu Al Kama that four persons have returned to Sri Nagar on that very date and that they have also expressed their desire to repat the same type of action again. Secondly in the said conversation, Abu Al Kama is alleged to have conveyed to accused Tariq Ahmed Dar that because of international pressure on them, they will have to deny the hands of Laishkare Taiba in Delhi blasts. Accused Tariq Ahmed Dar is alleged to have assured him that question of taking responsibility firstly did not arise and consequently he allegedly got a denial published in a daily newspaper published in Srinagar in its front page. Accused Tariq Ahmed Dar is alleged to have talked to newspaper '' GK''- a daily newspaper published from Srinagar and BBC claiming him to be operative of Laishkare Taiba in which he on behalf of LeT disclaimed its hands in Delhi Blasts.
2. On 10.11.05 accused Tariq Ahmed Dar was arrested from Pamore Highway J & K while he was traveling in maruti car No JK 01 H 6731. During investigation, it transpired that accused Tariq Ahmed Dar had come into contact withone Javed Ahmed Sheikh, an LeT activist, through whom he met Abu ozefa, a Pak National and Divisional Commander of LeT. Since accused Tariq Ahmed Dar was M.Sc. degree holder and was a qualified medical representative working with Johnson & Johnson and was well acquianted with hospitals and Doctors, therefore, Abu Ozefa entrusted him the responsibility to arrange treatment for terrorists 3 injured in various operations and also to work as media Spokesman on behalf of LeT. A satellite mobile phone is alleged to have been given to him but same was allegedly taken away by him after Delhi Blasts. In October, 2004 Javed was killed in an encounter in J & K. To avoid his relation with Javed, accused Tariq Ahmed Dar, at the directions of Abu Ozefa, proceeded on Haj Pilgrimage. During said pilgrimage, he allegedly met Dr Arif, originally resident of Sopor, J & K and at the request of Abu Ozefa Dr Arif gave him 70,000 Saudi Riyals. In April, 2005, accused Tariq Ahmed Dar was allegedly arrested in case FIR NO 31/05 U/s 7/25 Arms Act and section 56 Foreign Exchange Regulation Act for possession of a handgrenade and foreign currency of 70,000 Saudi Riyals which were allegedly recovered from his possession. However, he was subsequently released on bail in that case.
3. It is also alleged that during investigation it transpired that in October, 2005 at the directions of Abu Ozefa, some terrorists allegedly met accused Tariq Ahmed Dar in Talbal, Srinagar. This meeting was allegedly attended by one Mansoor, Rashid, both LeT commanders of Sopore, J & K and Sajjad Salfi ( Pak National) commander of Badgaum and Mohd Rafiq Shah and some other terrorists. Mansoor, Rashid and Sajjad Salfi are alleged be resident of PoK. In the said meeting, it was allegedly decided to rock Delhi with bomb blasts. Accused Tariq Ahmed Dar is alleged to have told that since he had visited Delhi on official tours, he was well familiar with places in Sarojini Nagar, Karol Bagh and Paharganj Markets in Delhi. Accused Tariq Ahmed Dar is alleged to have been directed by Abu Ozefa to recruit more boys in LeT to carry out attacks in Sri Nagar and Delhi. On 4/5.10.2005 and accused Tariq Ahmed Dar is alleged to have come to Delhi to attend his company cycle meeting and had allegedly informed Abu 4 Ozefa that Diwali Festival was approaching and that there would be more rush in Sarojini Nagar, Karol Bagh and Pahar Ganj Markets during that festive season, therefore, that would be opportune time to plant explosives in crowded markets and buses. The operation was allegedly coordinated by Abu Oefa and Zaid in coordination with Abu Al Kama. Abu Al Kama allegedly managed RDX from cross the border and sent the terrorists like Mansoor, Rashid, Sajjad Salfi, all Pak nationals and accused Rafiq Shah with ''Mansoor'' as code name. As per plan on 29.10.05 blasts were allegedly carried out in Pahar Ganj by Mansoor, resident of Pakistan, in Sarojini Nagar Market by Rashid & Sajjad Salfi and in a bus in Kalkaji by accused Rafiq @ Mansoor. After the blasts, all these persons allegedly retreated back to Sri Nagar in a truck. Accused Tariq Ahmed Dar is alleged to have received a message from Abu Ozefa to disown the responsibility for bomb blasts in Delhi and accordingly he called on phone the representative of Kashmir News Agency and BBC and disclaimed the hands of LeT in Delhi blasts.
4. During conversation with Abu Al Kama on IMEI No 008821621523999 , accused Tariq Ahmed Dar is alleged to have disclosed telephone No of 'Mansoor' as 9419475249. Record of mobile phone No 9419475249 and IMEI No 356207007579668 was checked and it was allegedly found that both the mobile number 9419475249 belonged to accused Rafiq @ Mansoor. Another Mobile No 9419149588 belonged to Mohd Hussin Fazli was being used on IMEI No 356207007579668. It was also allegedly found that mobile No 09906719815 was being used on instrument having IMEI No 353794005451980. This mobile phone stood in the fake name of Kurshid Ahmed but infact it was being allegedly used by accused Tariq Ahmed Dar to communicate 5 with Abu Al kama. It was allegedly revealed that IMEI No 353794005451980 was also being used on another Airtel J & K number 9906773692 which was registered in the name of accused Tarique Ahmed Dar. It transpired that mobile chip No 9906719815 was being used on same IMEI No 353794005451980 on 26th July, & 9th, 24th and 26th November. Both thee telephone numbers were being used by accused Tariq Ahmed Dar to communicate with Abu Al Kama and Abu Ozefa. It also transpired that accused Rafiq Shah was allegedly having mobile number 9419475249 and accused Mohd Hussain Fazli @ Javed was having in his name mobile phone No 9419449528. Both these mobile chips were being used on instrument having IMEI No 356207007579668. Accused Mohd Hussain Fazli was allegedly arrested in this case and mobile instrument having IMEI No 356207007579668 was allegedly recovered from his possession. This instrument was being used by him till 31.10.05 with mobile No 9419475249 belonging to accused Rafique Shah @ Mansoor and thereafter it was being used with mobile No 9419449528. Accused Mohd Hussain Fazli was arrested from his house in Jakura, Srinagar on 22.11.05 and aforesaid instrument was allegedly recovered from his possession. He is alleged to have disclosed that he had been affiliated to militant group Al Jihad and had received training in Pakistan and thereafter he had been involved in number of terrorist operations of attacks on paramilitary forces. He is alleged to have gone for training in Pakistan in 2001 along with accused Rafiq. Thereafter he was allegedly arrested in a case but was released on bail in 2003.
5. In the investigation of Kalkaji case, witnesses allegedly gave facial description of the person who had lobbed black bag containing explosives in the bus on the basis of which a sketch was 6 prepared. The sketch soprepared allegedly had striking resemblance with accused Rafiq Shah @ Mansoor. On the basis of this, accused Rafiq Shah @ Mansoor was suspected to have been involved in the blast in bus in Kalkaji and he was allegedly arrested. Accoding to police, it transpired that he had been involved in terrorist activities with group belonging to Javed who had visited Pakistan several times and had received training there. In the year 2001, he had been arrested for his involvement in terrorist activities with accused Mohd Hussain Fazli and after his release from jail, he allegedly again joined Fazli and engaged himself in terrorist activities. Accoding to police on 29.10.05 he along with other members of LeT, had allegedly caused blasts in Delhi. After his arrest, police had moved an application before ld CMM for holding his test identification parade. However, accused Rafiq Shah refused to join the proposed TIP. Subsequently, he was allegedly identified by witnesses to be the sameperson who had lobbed bomb in bus No DL IP B 2719. Statement of the witnesses in this regard are filed with the challan.
6. During investigation, it was found that accused Tariq Ahmed Dar had four bank accounts. In bank account No A/C 02483813348 maintained with Jammu and Kashmir Bank, he had deposited a sum of Rs 2859157/- and had withdrawn a sum of Rs 2833595/- from January 2001 to November, 2005.
7. In the aforesaid accont a sum of Rs 14,01,000/- was allegedly received from Delhi through Hawala by one Farooque Ahmed Batloo and this amount was transferred in Tarique's account through bank account of accused Gulam Ahmed Khan, resident of D-10 Lajpat Nagar, Delhi, permanent resident of Nowpura Srinagar.
8. In the HDFC Bank A/C No8984 accused Tariq Ahmed 7 Dar had allegedly received total amount of Rs 15,30091 during period 23.3.05 till November,2005 out of which Rs 10,02,411 had been withdrawn. In this account, he had received on 19.7.05 FCN Rs 3,39,000, on 13.8.05 FTC Rs 13,000, on 26.9.05 FE Rs4,94517,on 20.11.05 two cheques from UAE amounting to Rs 655 and Rs 5,00,000/-.
9. Similarly in his another HDFC Bank A/C No 1613, accused Tariq Ahmed Dar had deposited Rs 9,41,535 and had withdrawn Rs 9,24,600. In this account he had received on 13.10.05 through exchange Rs 4,00,113 from UAE and on 27.10.05 through exchange Rs 4,88,277 from UAE.
10. In his fourth account i.e. SBI A/c No 3099 from January 2001 to November, 2005 total transactions of more than Rs 31 lacs took place. This includes receipt of foreign currency, on 22.3.03 PURC Rs 1,95,210 ( 16,200 Riyal), on 28.7.04 PURC Rs 22,675 ( 500 US $), on 25.11.03 PURC Rs 56,312 ( 1,250 US $).
11. It also allegedly transpired that in all a sum of Rs 84 lacs was deposited in his various accounts including foreign remittances of Rs. 26,09,759. On inquiry from the employer of accused Tariq Ahmed Dar, it was allegedly revealed that a sum of Rs 12,67,834 was paid to him from March, 2001 to November, 2005 after deductions towards PF, ESI and income Tax. It is also alleged that accused has been receiving foreign remittances from foreign terrorists outfists for the purpose of carrying out explosions in Delhi and amount withdrawn by him had been spent on the aforesaid operations. It also allegedly transpired that accused Rafiq Shah was involved in the blasts and so he was arrested from Sri Nagar. An application was moved before ld M.M. to hold his TIP. However, he declined to join the proposed TIP. Subsequently he is alleged to have been identified as person who had lobbed 8 explosive devices in bus in Kalkaji. Sketch prepared on the basis of description given by the witnesses also had striking resemblance with face of accused Rafiq Shah upto 90% as the person who had lobbed explosive devices in the bus in Kalkaji.
12. During thecourse of investigation, it allegedly transpired that some of the persons in Delhi were assisting in terrorist activities, therefore, separate case was registered under the provisions of Unlawful Activities (Prevention) Act. It was also allegedly transpired that accused Tariq Ahmed Dar was found to have account No 13348 in J & K Bank,Batmula Branch as statement of account of aforesaid bank showed that he had received in his account (1) Rs 96000 on 22.4.04, (2) 3 lac on 20.10.04 and (3) Rs 3,90,000/- on 26.10.04 and Rs 1,75,000 on 5.11.06 from account No 4813 at Delhi for being provided for terrorist attacks. Account No 4813 of J & K Bank, Lajpat Nagar is in the name of Gulam Ahmed Khan. It is alleged that aforesaid amount was transferred to the account of accused Tariq Ahmed Dar was allegedly received from one Mohd Farooque Batloo, militant of J & K at his directions accused Gulam Ahmed Khan allegedly transferred this amount to the account of accused Tariq Ahmed Dar. It is alleged that these accused persons also assisted in the unlawful activities, hence, a charge U/s 17/18 of Unlawful Activities (Prevention) Act against accused Gulam Ahmed Khan, Farooque Ahmed Batloo and Tariq Ahmed Dar was also made out.
13. Initially three cases were registered :- one in Police Station Sarojini Nagar, Second in PS Pahar Ganj and third in PS Kalkaji. However, subsequently investigation was transferred to Special Cell and therefore, special Cell has filed all the four challans including one under the provisions Unlawful Activities (Prevention) Act.
914. Before proceeding to addres the arguments advanced on behalf of prosecution and accused persons, it will be necessary to set out evidence which appears against each of accused persons. It should be noted that evidence collected in all the four cases is more or less the same except the details of the persons died during three blasts or were injured in different incidents. Other evidence relied upon by the prosecution in all the four cases is same. I will proceed from accused Tariq Ahmed Dar.
15. Evidence against accused Tariq Ahmed Dar:-
As against him, there were instructions form IB that a 'Thruya' Phone having IMEI No 008821621523999 was talking to a person in India on mobile No 9906719815 and accordingly the conversation between the caller and called were intercepted on 1.11.05 and 4.11.05. Thuraya phone 008821621523999 had origin from outside India i.e. UAE alleged to be from Abu Al Kama, activist of LeT. (2) Accused Tariq Ahmed Dar was having two mobiles phones with him one bearing 9906719815 ( IMEI No 353794005451980). It was in the fake name of Khurshid Ahmed, resident of Arbal, Shalimar, J & K which according to the prosecution is a non existing person. Another mobile No 9906773692 was genuinely subscribed by him and stood in the name of accused Tariq Ahmed Dar.
16. For the purpoe of conversing with a foreign agents, he had been using mobile 9906719815 on IMEI No 353794005451980 and for other purposes he had been using his genuine mobile no 9906773692. According to the prosecution this was to avoid suspicion about his involvement and to conceal his identity. However, mobile No 9906773692 was also used by accused Tariq Ahmed Dar on IMEI No 353794005451980 with mobile No 9906773692 on 8.9.05 and 18th November, 2005.
10According to the prosecution, this establishes link between accused Tariq Ahmed Dar as the person who had been talking to foreign agent on thruya phone IMEI No 008821621523999 allegedly belonging to Abu Al Kama.
17. According to the prosecution satellite phone IMEI instrument No 08821621523994 belonged to Abu Ozefa, LeT activist and accused Tariq Ahmed Dar had been using mobile No 9906719815 and IMEI No 353794005451980 to talk to him on his mobile instrument IMEI No 08821621523994.
18. In the conversation intercepted on 1.11.05, accused Tariq Ahmed Dar is alleged to have apprised Abu Al Kama '' Delhi mai kch bazar aise hote hai jahan camera nahi hai, jahan bande ki shanakht vanakht sab kuch hoti hai, lekin iss wali jagah par koi camera nahi hai......''......'' koi kabuliyat wali baat na honi chahiye, ek baat to tay hai ki jimmedari ka to sawal hi nahi hai.....''
19. In the conversation on 4.11.05, he allegedly apprised Abu Al Kama '' Charo Log aa gaye hai, Idhar hee, Abhi Aaj. Mujhe Yakeen Hai, Insha Allah Taaroz Kayamat ye Baat udhar hee reh jayegi. Doosra wo kehte hain ki wo immediately aisa he dobara kar sakte hain.....''. ".
20. In this very conversation , they were found talking '' ''Accha maine use dobara repeat karaya hai, aaj vo GK hai, uska front page aap jaroor padhiye, interneet per, maine repeat karaya hai, bada tafselan....''.
21. (2) At the instance of Abu Al Kama, he is alleged to have given a callto Greater Kashmir, a daily newspaper published in Sri Nagar disclaiming the responsibility of Delhi Bomb Blast on behalf of LeT. (ii) this very denial was published in the newspaper GK of 4.11.05. The publication report is alleged to be consistent with the 11 version given in the intercepted conversation. ( iii) In this very conversation he had also made reference to the fact that the person (reference is implied ly to the blast in Delhi) have returned back to Srinagar. (iv) He had made references during the talk to the explosive material in which according to the prosecution he had used the terms ''ANDAS'' for bombs. (v) He has disclosed the mobile Phone No of one 'Mansoor' as 9419475249. According to the prosecution, this mobile No belonged to Mohd Rafiq Shah @ Mansoor. The record of conversation shows that he had been in contact with accused Tariq Ahmed Dar. Subsequently this very mobile phone No was recovered was recovered from accused Mohd Hussain Fazli when he was arrested and at his instance accused Mohd Rafiq Shah was identified as 'Mansoor' and was arrested. It also transpired that mobile 9419449528 having IMEI No 356207007579668 belonged to accused Mohd Hussain Fazli. It also transpired that this very IMEI instrument No was also used for mobile phone No 9419475249 belonging to Rafiq Shah @ Mansoor.
22. The sample voice of accused Tariq Ahmed Dar was taken and sent to CFSL. Accoprding to reports filed by the prosecution, it has been opined that voice of the person in the intercepted conversation of 1.11.05 & 4.11.05 of mobilephone tallied with that of accused Tariq Ahmed Dar. On the basis of this, it is case of the prosecution, that it was he who had been talking to Abu Al Kama hatching conspiracy to cause bomb blast in Delhi.
23. From the record of salary furnished by Johnson & Johnson, it also transpired during the course of investigation that accused Tariq Ahmed Dar was employed with Johnson and Johnson and during the period March,2001 to November, 2005 after deductions towards PF, ESI and Income Tax, in all, he had 12 received a sum of Rs 1267834/- as his remunerations.
24. It is also shown in evidence that accused Tariq Ahmed Dar had four bank accounts. In Bank account No 02483813348 with J & K Bank, he had deposited a sum of Rs 2859157/- and withdrawn a sum of Rs 2833595/-
25. In the aforesaid accont a sum of Rs 14,01,000/- was received from Delhi through Hawala from one Farooque Ahmed Batloo and this amount was transferred in Tarique's account through bank account of one Gulam Ahmed Khan of D-10 Lajpat Nagar, Delhi, permanent resident of Nowpura Srinagar.
26. In the HDFC Bank A/C No8984 he had received total amount of Rs 15,30091 during period 23.3.05 till November,2005 out of which Rs 10,02,411 had been withdrawn. In this ccount, he had received on 19.7.05 FCN Rs 3,39,000, on 13.8.05 FTC Rs 13,000, on 26.9.05 FE Rs4,94517,on 20.11.05 two cheques from UAE amounting to Rs 655 and Rs 5,00,000/-.
27. Similarly in his another HDFC Bank A/C No 1613 he had deposited Rs 9,41,535 and withdrawn Rs 9,24,600. In this account he had received on 13.10.05 through exchange Rs 4,00,113 from UAE and on 27.10.05 through exchange Rs 4,88,277 from UAE.
28. In his fourth account i.e. SBI A/c No 3099 from January 2001 to November, 2005 total transactions of more than Rs 31 lacs took place. This includes receipt of foreign currency, on 22.3.03 PURC Rs 1,95,210 ( 16,200) Riyal), on 28.7.04 PURC Rs 22,675 ( 500 US $), on 25.11.03 PURC Rs 56,312 ( 1,250 US $). Statement of account of these banks transactions are filed on record.
29. From the record, it is prima facie clear that total sum of Rs 84 lacs was deposited in his various accounts including foreign remittances of Rs 26,09,759. On the basis of record of salary furnished by Johnson & Johnson, the employer of accused Tariq 13 Ahmed Dar, it was revealed that a sum of Rs 12,67,834 was paid to him from March, 2001 to November, 2005 after deductions towards PF, ESI and income Tax. It is also shown in these accounts that accused had been receiving foreign remittances from foreign sources and amount stated above was withdrawn by him.
30. In substance prima facie it appears from the record that accused had received foreign remittances in Riyals and US $ and thus had received a sum of Rs 84 lacs in his all the four accounts including inflow of foreign remittances and currencies. The value of foreign remittances and currencies credited to the account of Tariq came to Rs 2609759. It is alleged by the prosecution that he did not have any apparent source of income for such an huge unaccountable money, therefore, he had been receiving huge amount in foreign currencies for the funding of bomb blast in Delhi.
31. Accused Tariq Ahmed Dar was arrested under the provisions of Arms when a hand grenade was allegedly recovered from his house along with foreign currency for which a case under Arms Act and FERA was made on him on 19.4.05 in PS Sher Gardhi, Jammu and Kashmir which is pending. It is also alleged that accused Tariq Ahmed Dar had been rendering medical assistance for the treatment of terrorists of LeT injured during the course of encounters with Army or Paramilitary forces. However, no piece of evidence has been filed with challan to support these facts.
32. That on 4/5.10.05 accused Tariq Ahmed Dar had allegedly visited Delhi to identify various markets. For this factual proposition the prosecution has placed on recod the record of Hotel in Karol Bagh. He had allegedly made reference in the intercepted conversations to the markets where bomb blast in Delhi had taken 14 place that no cameras were fitted in those markets, therefore, identification of the persons would not be possible.
33. According to the prosecution, accused Tariq Ahmed Dar managed to bring explosives/ explosive devices to Delhi in a truck via Srinagar and through Mansoor, Rashid, Sajjad Salfi, all POK nationals along with accused Rafiq Shah @ Mansoor carried out the blasts in Delhi under the code name '' Mansoor''. After the bomb blasts, these persons fled away POK through Srinagar and accused Rafiq Shah remained in Srinagar. No evidence to support this assertion has been filed with challan. Evidence against accused Mohd Rafiq Shah @ Mansoor------
34. According to the prosecution, firstly accused Mohd Raifq Shah has a previous record of his association with terrorist organization of Let. He is alleged to have been arrested in a case in 1995. Secondly prosecution has relied upon the phone call details of telephone No 9906719815 belonging to accused Tariq Ahmed Dar having IMEI No 352348004761510 and the cell phone No 9419475249 pertaining to Rafiq Shah to show that he was in communication with him. According to the prosecution, he is alleged to have come to Delhi on the day of blast and he was the person who had lobbed explosive in a black bag in bus No DL I P B 2719 . During the course of investigation, the witnesses gave details regarding appearance of the person who had lobbed explosive device in the bus and on the basis of which a sketch was prepared at the instance of ocular witnesses which had striking resemblace with accused Mohd Rafiq Shah @ Mansoor. Thirdly he was arrested from Srinagar at the identification of accused Mohd Hussain Fazli, he was brought to Delhi and the prosecution had moved an application before ld M.M./CMM for holding TIP of accused Mohd Rafiq Shah. Accused Mohd Rafiq Shah refused to 15 join the proposed TIP. Subsequently, the alleged ocular witnesses have identified accused Rafiq Shah to be the person who had lobbed explosive devices in the bus. It is true that accoding to record accused had refused the TIP on the ground that he and his photographs had been shown to the witnesses. However, fact remains that there was refusal on the part of accused Mohd Rafiq Shah to join the proposed TIP and subsequently he had been identified by the witnesses. According to the police, he is alleged to have made a disclosure statement regarding his alleged relation with terrorist organization, his visit to Pakistan for training and about his arrest in the year 1995 when he was released from jail in 1998. In 2002, he is again alleged to have been arrested for his alleged involvement in terrorist activities and after his release from jail, he again allegedly joined accused Mohd Hussain Fazli in alleged terrorist activities. He is also alleged to have disclosed that SIM No 9419475249 was received by him from Mobd Hussain Fazli which he had been using to communicate with Abu Al Kama.
EVIDENCE AGAINST ACCUSED MOHD HUSSAIN FAZLI:-
35. Call details showing that he was interacting with accused Rafiq Shah @ Mansoor. It is alleged that phone 9419475249 was of accused Mohd Rafiq Shah whereas accused Mohd Hussain Fazli @ Javed was having mobile No 9419449528. Both these phone numbers had been used on IMEI No 356207007579668. Mobile instrument of this IMEI No was recovered from his possession. He had been using mobile No 9419475249 upto 31.10.05. This mobile No was of Mohd Rafiq Shah. After 31.10.05 accused Mohd Hussain Fazli had been using his mobile No 9419449528 on IMEI No 356207007579668. Secodly, he is alleged to have made a disclosure statement in the police custody and thereafter led the 16 police to the house of accused Mohd Rafiq Shah and at his pointing out, he had been arrested. During the course of investigation, accused is stated to have disclosed that accused Rafiq Shah and Mohd. Hussain Fazli both had gone to Pakistan in 2001 for training and returned back to Indian when they were arrested. According to the prosecution in 2003 he was released from jail but again joined accused Mohd Rafiq Shah. However, no evidence in regard to visit to Pakistan has been filed with challan. Evidence against accused Gulam Ahmed Khan and Farooq Ahmed Batloo:-
36. According to the prosecution, accused Gulam Ahmed Khan is a businessman who is orginally from J & K, Srinagar. It is alleged that accused Farooq used to secure funding for terrorist activities. It is alleged that accused Farooq came to Delhi in June 2004 and remained there till January, 2005. During this period a sum of Rs 6484400 were transferred to the account of Tariq Ahmed Dar in Srinagar from February 2005 till November 2005 transaction worth 2,84500 were transferred to his account. In June, 2004, accused Farooq Ahmed was in Delhi who got transferred a sum of Rs 15 lacs in cash to the account of Tariq Ahmed Dar in the shape of three drafts of Rs 5 lacs each to purchase a property belonging to Smt Nirmal. This amount of Rs 15 lacs was allegedly arranged by accused Farooq and was transferred to the account Tariq Ahmed Dar through account of Gulam Ahmed Khan. It is alleged by the prosecution that this transfer of Rs 15 lacs was a hawala transaction and was a money procured by Farooq to carry out terrorist activities. It is alleged that this amount was to be paid to Smt Nirmal through Tariq Ahmed Dar, accused, so that the amount of Rs 15 lacs should remain readily available in the form of property readily saleable whenever the occasion so arises. The 17 prosecution has placed on record the various details of the account of accused Gulam Ahmed Khan maintained with J & K Bank, Lajpat Nagar showing that a sum of Rs 5 lacs was deposited in cash which was withdrawn for preparing three drafts of Rs 5 lacs each in the name of Smt Nirmal. According to the prosecution, it was Farooq Ahmed who had arranged this money from undisclosed sources which was meant to be used for terrorist activities.
37. The record of Bank accounts of accused Gulam Ahmed Khan shows that hehas been running business in the name of M/s Ahmed Khan and Sons in Lajpat Nagar. He allegedly opened a bank account No 4813 in Jammu & Kashmir Bank, Lajpat Nagar Branch. Being proprietor of above concern, he had been operating this account. A sum of Rs 14,1000/- was allegedly transferred from A/C No 4813 to the account of accused Tariq Ahmed Dar in Srinagar Bank on 22.6.04, 20.10.04, 26.10.04,5.11.04 and 13.11.04. Prior to June, 2004, accused Gulam Ahmed Khan had a balance of Rs 25300/- in his account. But after June, 2004, during the period June, 2004 to January, 2005 ( seven months), the total transactions in his account amounted to Rs 62,84,400/-. The record shows that accused Gulam Ahmed Khan had another individual bank account No 4090 in Jammu & Kashmir Bank, Lajpat Nagar and total amount to his credit in both these account was Rs 22016/- out of which he had withdrawn Rs 21000/- and only a sum of Rs 245/- was balance to his credit. According to prosecution this showed his financial status. However, according to prosecution there was abrupt spurt of the deposit of money in his accounts which during the period June, 2004 to January, 2005 came to Rs 62,84,400/-.
38. As against accused Farooq Ahmed Batloo, he is alleged to have come to Delhi in June, 2004. In June, 2004, he entered into a 18 deal with one Smt Nirmal to purchase her house in Srinagar for Rs 30,00,000/-. According to statement of Smt Nirmal, accused Farooq Ahmed Batloo gave her Rs 15,00,000/- ( 5 lacs) in cash) and remaining amount was paid in the form of 3 drafts. These three drafts of Rs 5 lacs each were made after withdrawing amount of Rs 15 lacs from the account of accused Gulam Ahmed Khan. These three drafts were encashed by Smt Nirmal by depositing the same in her A/c No 27765 of HDFC Bank, Vasant Vihar. Accused Gulam Ahmed Khan in his disclosure statement has disclosed that accused Farooq Ahmed Batloo had deposited the amount of Rs 15 lacs in his account of which these drafts were prepared. The prosecution has placed on record an agreement to sell allegedly executed by Smt Nirmala Devi and Chunni Kana, the owner of the houe in favour of Hauzi Abdul Rehman Batloo. Hauzi Abdul Rehman Batloo, according to the prosecution is none else but father of accused Farooq Ahmed Batloo. On these facts, it is alleged by the prosecution that Gulam Ahmed Khan and Farooq Ahmed Batloo, have committed offences U/s 17/18 Unlawful activities Prevention Act.
39. It has been argued on behalf of the State that police has collected evidence as set out in the earlier part of the oder that accused was in communication with Abu Al Kama and Abu Ozefa member of LeT outfit. It is argued that on 1.11.05 and 4.11.05 the talks between Tariq Ahmed Dar and Abu Al Kama were intercepted, copies of which are already on record in which he had confessed that blasts were carried out and boys who had carried out the blasts had returned back safely to Srinagar on that very day. It is argued that he had made references regarding explosives and was instructed to disclaim the responsibility. According to the prosecution, it is argued that accused Tariq Ahmed Dar was having 19 two cell phones, one in the name of fake person Khurshid which he had been using to communicate with Abu Al Kama and Abu Ozefa whereas the second phone which was genuinely issued in his name. It is argued that both these cell phones were being used on the instrument bearing IMEI No 3537940045451980. it is argued that intercepted conversation was sent to CFSL along with voice sample of accused Tariq Ahmed Dar and it has been opined that voice of accused Tariq Ahmed Dar tallied with that of intercepted conversation. It is also argued that he made a phone call to J & K daily disclaiming the responsibility for the blast, therefore, prima facie there is evidence on record that it was accused Tariq Ahmed Dar who in conspiracy with Abu Al Kama and Abu Ozefa carried out bomb blast in Delhi to cause mass destruction of human lives and property. It is also argued that LeT is a banned organization in India and since the accused Tariq Ahmed Dar was in conspiracy with Abu Al Kama and Abu Ozefa, he procured explosives in India and with the terrorists of PoK carried out blasts in Delhi, therefore, there is sufficient evidence to charge him to enter into conspiracy to cause Delhi bomb blast with intention to cause loss to human life and property at large scale. It is argued that LeT and other militants organizations in Kashmir have launched a militant movement to get Kashmir liberated and in order to secure that end and to pressurize Govt of Indian to acced to their demand, they have resorted to subvertive activities, therefore, there is evidence on record that he along with his co accused have entered into a conspiracy to wage war against Govt of Indian and thus have actually waged war against Govt of India. It is argued that in all from various sources accused Tariq Ahmed Dar had received a sum of Rs 84 lacs between 2001 to 2005 whereas his total income from all sources was Rs 12 lacs, there is evidence that he had procured 20 necessary funds to execute the conspiracy. It is also argued that out of Rs 84 lacs, 24 lacs were received through foreign remittances including remittances from UAE by accused Tariq Ahmed Dar which clearly shows that he had procured money from out of the country to carry out subvertive activities.
40. It is also argued that accused Tariq Ahmed Dar had also roped in accused Rafiq Ahmed Shah and Mohd Hussain Fazli to execute the conspiracy to wage war against Govt of India and carry out blast in Delhi. It is argued that accused Tariq Ahmed Dar, a fornight before blast had come to Delhi, stayed in Karol Bagh in a hotel, had carried out survey of markets in Karol Bagh, Sarojini Nagar and Paharganj and had chosen Sarojini Nagar and Paharganj market for the purpose of the blast as no cameras were fitted in these markets, therefore, it would facilitate the concealment of identity of culprits. It is argued that accused Rafiq Ahmed Shah in execution of the conspiracy lobbed a bomb in a bus in Kalkaji, the sketch was prepared at the instance of eye witnesses which had striking resemblace with accused Rafiq Ahmed Shah. It is argued that subsequently accused Rafiq Ahmed Shah refused to join TIP and was identified by the eye witnesses to be the person who had lobbed the bomb. It is argued that both Tariq Ahmed Dar and Rafiq Ahmed Shah had been arrested on earlier occasions and therefore, they have intimate connection with terrorists. It is also argued that accused Mohd Hussain Fazli 's involvement in the blast has been shown from the fact that he was in communication with accused Tariq Ahmed Dar, the instrument was recovered from accused Mond Hussain Fazli which was used by Rafiq Ahmed Shah. It is argued that charges U/s 121/121A read with section 120 B /302/307 IPC, Section 16,17,18,20 & 23 Unlawful Activities Prevention Act are made out against accused Tariq Ahmed Dar, 21 Mohd Hussain Fazli and Mohd Rafiq Shah @ Obesh are made out whereas charges U/s 17 & 18 of Unlawful activities (Prevention0 Act are made out against accused Gulam Ahmed Khan and Farooq Ahmed Batloo. It is argued that they be accordingly charged in respect of respective incidents.
41. On the other hand, on behalf of accused Tariq Ahmed Dar, it has been argued that prosecution has to show material against the accused not only allegations but in the shape of evidence by which they are required to be substantiated and if two views are possible, accused can not be charged merely on the basis of suspicion. It is argued that accused Tariq Ahmed Dar has not been mentioned in FIR. Secondly, blast took place in Delhi and accused resides in J & K. Thirdly, it is argued that there is no evidence to establish the identity of Abu Al Kama and Abu Ozefa, therefore, prosecution has introduced these persons as artificial persons. It is argued that accused Tariq Ahmed Dar was arrested on 10.11.05 on the basis of feedback given by Intelligence Agency and information was sought by Delhi Police at 7.00 p.m. on that day. It is argued that according to police, the Intelligence Agencies have given information to intercept phone no 9906719815 but cell phone No 9906819815 was intercepted which is not the phone of Tariq Ahmed Dar. It is argued that no identification of accused Tariq Ahmed Dar has been established on the basis of intercepted conversation as same has not been sent to FSL. It is argued that call details produced are in respect 9906719815 and no Call details of 9906819815. it is argued that seizure memo on record shows that phone No 9906719815 but no conversation of this phone or sample was sent to FSL. It is argued that blast took place on 29.10.05 whereas phone of accused Tariq Ahmed Dar had been intercepted between 20.9.05 to 31.10.05 but no conversation during 22 this period was taped. It is further argued that even if reliance is placed on tape recorded conversation, it is a post incident statement allegedly made by accused which is inadmissible in evidence U/s 10 of Indian Evidence Act. It is argued that Abu Al Kama and Abu Ozefa are from UAE who may be knowing only Arabic or English language but the alleged interception is in Urdu which was allegedly intercepted by CIA , an American Agency, and passed on to Indian Authorities but there is nothing on record as to who had intercepted the conversation. It is also argued that phone No 9906719815, according to prosecution, belonged to one Khurshid Ahmed, aged 19 years who has not been made an accused nor any evidence has been placed on record that this phone belonged to accused Tariq Ahmed Dar. It is argued that no call details of 9906819815 have been produced . It is argued that no evidence exists on record that accused is a member of barred group. It is argued that no evidence of conspiracy exists on record. It is argued that record of the Hotel has been taken into possession by the police which shows that along with accused Tariq Ahmed Dar, D Mishra, P. Sethi of Johnson and Johnson had stayed in the room and there is no mention of name of any terrorist nor the statement of D Mishra or P Sethi had been recorded . It is argued that there is no evidence on record that Dr Arif Mohd had given 17000 Riyasl to accused Tariq Ahmed Dar nor any such statement is on record. It is argued that there is no evidence on record that any person in the name of Rashid, Sajjad Salfi and Mansoor resident of PoK. It is argued that there is no evidence on record that Abu Al Kama is a terrorist or belonged to a terrorist outfit nor there is any evidence that accused Tariq Ahmed Dar is a terrorist. It is argued that there is no evidence on record as to where Abu Al Kama resides and what he does. It is argued that U/s 10 of the 23 Evidence Act post conspiracy conversation are not admissible as proof of conspiracy and that section could have been applied only if Abu Al Kama had been an accused. It is further argued that U/s 88 of Evidence Act, tape recorded conversation is not admissible nor can it be presumed as to who was the person talking on other side of the phone. It is also argued that tape recorded intercepted conversation can not be relied upon as an evidence U/s 46 of Unlawful Activities Prevention Act nor such conversation has been produced in the court. It is argued that there is no evidence accused Tariq Ahmed Dar helped activities of LeT or that he came in a truck from J & K or if at all there was any meeting attended by him or which was also attended by other terrorist and there is nothing on record except confessional statement of accused which is inadmissible in evidence.
42. So far as other accused persons are concerned, it has been argued that confessional statement of accused Rafiq and Fazli are not admissible since no recovery has been effected in consequence thereof. It is further argued that to frame a charge U/s 121 or 121A IPC there should be meeting of minds of two or more persons to collect arms and ammunition and money and targeting of the Govt institutions. It is argued that Sarojini Nagar and Paharganj Market are not Govt of India within the meaning of section 121 nor does it amount to waging war against Govt of India. It is argued that there is no evidence on record as to who had collected arms and ammunition and if at all accused are members of banned organization like LeT in the absence of which section 121A and 121 IPC are not attracted. It is argued that there is no evidence as to who Bilal and Sajjad Salfi are. It is argued that except disclosure statement of accused there is no evidence on record to connect the accused persons with the alleged offences. It is argued 24 that not even a single witness has been examined by the police to show that there was any prior meeting of minds between accused persons Tariq Ahmed Dar, Fazli and Rafiq either in collection of explosives or ammunition or in procuring foreign currencies. It is argued that truck in which RDX was allegedly brought in, number therof has been mentioned by the prosecution but no owner thereof has been examined by the prosecution that it has any connection with accused. It is argued that there is no evidence on record that any of these accused persons was seen in Delhi soon after blast in Delhi. It is argued that mobile Phone No 9906719815 is stated to be of one Khurshid but no statement of Khurshid has been recorded by the police nor he has been made an accused in this case nor there is any evidence on record as to where this mobile phone was used after the blast.
43. A supplementary challan has been filed by the prosecution in case FIR NO 560/05 in which the discrepancies regarding mobile No 9906719815 and 9906819815 have been clarified by the prosecution. It is alleged in the supplementary challan that actually mobile phone No 9906818815 run on IMEI No 351875002473900 was intercepted and not 9906719815. It is alleged by the prosecution that this phone number has been used on five different instruments bearing IMEI No 357875002473900, 352348004761510, 355654002444940, 35258006017090. Secondly, the conversation intercepted on 4.11.05 was also sent to CFSL and report has been filed to the effect that voice of intercepted conversation tallied with the sample voice of accused Tariq Ahmed Dar. So far as truck in which RDX was brought into Delhi has been mentioned JK 01 E 5040. According to the prosecution this number was disclosed by accused Tariq Ahmed Dar but actually it belonged to a Zen Car and it was deliberately 25 done so by accused to confuse Investigating Agency.
44. Before the decision one way or other is arrived at, it will be necessary to set out the principles laid down by Hon'ble Supreme Court while considering the question of framing charge against the accused.
(1) Truth, veracity and effect of evidence can not be judged at the initial stage of charge. Secondly standard of test and judgment regarding guilt or otherwise of the accused has not to be applied at the stage of deciding matter U/s 227 Cr.P.C. Thirdly probative value of statement of witnesses can not be gone into at the stage of framing of charge and that if there exists ground for presuming that accused has committed an offence it will be sufficient to frame to charge. Reference may be made to Supdt of Legal Remembrancer of Legal Affairs,West Bengal vs Anil Kumar Bhunja & Ors AIR 1980 SC 52, Kewal Krishan vs Suraj Bhan- AIR 1980 SC 1780, State of Bihar vs Ramesh Singh- AIR 1977 SC 2018, UOI vs Prafulla Kumar Samal & Others- AIR 1979 SC 366, Niranjan Singh Karam Singh Pujari vs Jitender Bhimraj Bijja- AIR 1990 SC 1962 & State of Maharastra vs Somnath Thapar, AIR 1996 SC 1744.
(2) At the stage of framing of charge, the court has to consider broad probabilities of the case, total effect of documents and evidence. But roving inquiries are forbidden. For this proposition of law, Union of indian vs Prafulla Kumar Samal AIR 1979 SC
366. (3) Meticulous consideration of evidence is not required at the stage of framing of charge. Radehy Shyam vs Kunj Bihari, AIR 1990 SC 121 and State of MP vs S.B. Joshi 2000 Cri. L.J. 944 SC .
(4) The court is required to see if prima facie case exists against the accused and the question whether charges will eventually stand proved or not can only be determined after evidence is recorded. Appreciation of evidence on merits is not permissible. State of H.P. Vs Krishan Lal Prada AIR 1987 SC 773, State of MP vs SB Johri and others 2000 Cri LJ 944 SC can be relied upon for this proposition of law.
(5) If on the face value of the material discloses existence of all ingredients constituting an offence, it would be sufficient to frame charge against the accused. Niranjan Shah Karam Singh Pujari 26 vs Jitender Bhimraj Bijja & Ors, AIR 1990 SC 1662.
(6) If the material on record placed before the court discloses'' grave suspicion'' against the accused, which has not been properly explained, the court will be justified in framing charge and proceeding with the trial. Prafula Kumar ( Supra).
(7) If the material on record is enough for inferring ''strong suspicion'' about commission of offence, that would be sufficient to frame a charge Supdt of Legal Remembrancer of Legal Affairs,West Bengal vs Anil Kumar Bhunja & Ors AIR 1980 SC
52.
45. The argument has been raised that intercepted conversation is inadmissible in evidence U/s 10 Evidence Act because it pertains to post conspiracy period. I do not find any force in this argument because in the intercepted conversation there is a specific assertion allegedly made by accused Tariq Ahmed Dar '' that those persons can carry out bomb blast soon after also. What is the veracity of this statement has to be seen at the appropriate stage but this very sentence shows that even after bomb blasts had been carried out in Delhi, prima facie there was plan to carry out further blast and person responsible for the blasts were declared to be competent to carry out further blast soon thereafter also. This shows that conspiracy was still on foot with expectation of furhter blast in Delhi despite the fact that three blasts had already taken place in Delhi. Therefore, prima facie the the condition of section 10 of Evidence Act regarding existence of conspiracy on foot prima facie is shown to have existed, hence, this statement is admissible.
46. So far as argument that intercepted conversation is inadmissible in evidence, that is also not supported by law. In State of NCT of Delhi vs Navjot Sandhu AIR 2005 SC 3820, it has been held that U/s 63 and 65 B (2) of Evidence Act call record relating to cellular phone are reliable and are admissible in 27 evidence. Their lordships have even held that even if interception of telephonic conversation was not strictly in accordnace with Telegraphic Act, its admissibility would not be effected by its illegality or irregularity.
47. The argument on behalf of accused persons mostly in respect in aspect of investigation which according to accused persons the police has failed to carry out. In my considered opinion at the stage of consideration of charge, the court has not to scrutinize the evidence as if to write a judgment on merits. It can not be take into consideration what the police has omitted to do which was expected of it to do. Its duty is to give heed to what has been brought on record rather than what has been omitted. If the material placed on record along with the challan is tested on the yardsticks of appreciation as propounded by Hon'ble Supreme Court and Court is satisfied with it is sufficient to create strong suspicion in the mind of the court that accused might have committed the offence, that would be sufficient to frame acharge.
48. In the present case, calls on the telephone held by accused Tariq Ahmed Dar has originated from outside the India, the foreign land i.e. UAE. According to prosecution, Thruya which provides satellite facillity only exists in UAE. Of course there is nothing on record that the call were actually made to Abu Al Kama or Abu Ozefa but it is certain that calls were of foreign origin and not the domestic ones. Secondly, according to taste and tenure of conversation, it can not be said that accused Tariq Ahmed Dar was receiving sermens from a saint rather the talks disclose about disastrous design to carry out blast, supply of bombs, participation of accused Mansoor who happened to be none else than Rafiq Ahmed Shah. He had received instructions to disclaim responsibility for blast. The talks prima facie show that he was 28 eager to seek instructions from his mentor that if he so desired the exercise of bomb blast could be repeated immediately thereafter. There is specific refernece in intercepted conversations ofaccused Tariq Ahmed Dar to word '' ANDAS'' i.e. bombs. There is specific reference to markets and fact that cameras are not fitted in those markets, therefore, there was no chase to ascertain identify of culprits. Accused Tariq Ahmed Dar made reference to publication of disclaimer of GK newspaper which is prima facie consistent with talks. The mentor had disclosed the reasons to disclaim the responsibility attributable to international pressure. Even otherwise, accused Tariq Ahmed Dar is alleged to have received Rs 84 lacs between 2001 to 2005 including foreign remittances of 24 lacs in the form of foreign currencies including from UAE whereas according to the known sources his income during this tenure was 12 lacs. There is a prima facie evidence o n record that accused Tariq Ahmed Dar was in communication with accused Rafiq Ahmed Shah and accused Fazli. The cell phone recovered from the possession of accused Fazli actually belonged to Rafiq Shah and had been used by him. All these accused persons have previuous record of their involvement either in Arms Act or violation of FERA or had remained in jail in connection with terrorist activities. The evidence showing involvement of all these three accused prima facie shows that they were in intimate interaction with one another in order to execute conspiracy to carry out bomb blast in Delhi prima facie with a view to cause mass destruction of human life and property. According to the prosecution as many as 50 persons were killed in blast in SarojiniNagar and 104 persons were seriously injured on account of blast. In paharganj market 17 perons were killed in the bomb blast and 108 persons had sustained severe injuries. Prima facie it is in evidence that accused Rafiq 29 Ahmed Shah had lobbed a bomb in a bus in Kalkaji which when exploded caused injuries due to explosion to 13 persons .
49. The only question which remains to be decided whether a charge U/s 121, 121A,122 IPC are made out. The argument on behalf of accused person is that since alleged blasts were carried out in market neither it was directed against the Govt of India nor it is of such a nature that it could be said that it amounted to waging war against Govt of India.
50. I am unable to accept this contention. While dealing with as to what constitutes waging war against the Govt in R v Andrew Hardie (1820) I State Trial (N.S.) 610, it was observed as follows:-
"When the rising or tumult is merely to accomplish some private purpose interesting only to those engaged in it, and not resisting or calling in question the king's authority or prerogative, then the tumult, however, numerous the mob may be, is held only to be a roit....But whenever the rising or insurrection has for its object a general purpose not confined to the whole community, and striking directly at King's authority or that of Parliament then it assumes the character of treason."
51. But where the object of the mob is to overcome and subvert the Government they will be liable under this section. Hence at the time of Molplah rebellion in Malabar where the object of the mob was not mere resistance to a District Magistrate or to any isolated action or for a particular purpose but the total subversion of the British power and the establishment of the Khalifat Government, any one who was in the mob and took part in it was held guilty of ''waging war'' against the government. Umayyathangatghu Puthen Veetil Kunhi Kadir's case (1923 M W N 71)
52. Magan Lal Radhakrishnan V Emperor (AIR 1946 NG
173) is another leading authority on s.121 IPC. In this case the 30 accused and his followers, numbering about 200 belonging to an organisation called the Hindustan Red Army having its headquarters at Nagpur attacked a police station and shot dead two police constables there. The Red Army had its own flag and badges. The offenders were held guilty of waging war under S.121. It was a case of predetermined attack on the police station. In this case the following principles were laid down by the Nagpur High Court with regard to determination of guilty under this section:
1. No specific number of person is necessary to constitute an offence under S.121 IPC
2. The number concerned and the manner in which they were equipped or armed is not material.
3. The criterion is quo animo i.e. the object of the assembly.
4. The object of the gathering must be to attain by force or violence an ''object of a general public nature'' thereby striking directly against the Government.
53. In case of waging war against established government, there is no distinction between principle and accessory and all who take part in the unlawful activities incur the same guilt. It is a matter of common knowledge that various organizations in J & K like LeT, Harkat Ul Mujahiddin, Jaish E Mohammad are the terrorist organizations who are spearheading a separatist movement with a view to secure secessation of Kashmir from India. The modus operandi adopted by these organizations is to secure desired ends by means of terror so that either the international public opinion could be aroused against India or by causing subvertive activities to compel the Govt of India to acceed to their demand. In 31 the present case the acts complained against the accused are not directed against particular individual or group of individuals but it is directed against general public at large. Secondly, the objectives ofsuch acts are not to secure some opersonal and private gains.
54. There are four components of the State - (i) definite territory, (ii) definite population, (iii) existence of a Government, and (iv) sovereignty. To judge whether a particular act done by definite people constituted 'waging war on government, the act cannot be judged in isolation without its purpose and objective. It is the objection of an act which is of peramount importance. Secondly, an act directed against a particular component of the State cannot be judged in isolation. For example if subvertive act on the part of a particular group of people is directed against territorial integrity of a State, it is also an attack on the Sovereignty of a country and consequently an attack on the State. Similarly when the attack is directed against the instrumentalities of State like like Parliament which represents people and is manifestation of sovereignty of people, it would amount to waging war against Government of India . Similarly an organisesd attack on the army, or defence installations or the police or paramilitary forces whose duty is to protect the State and its people , it can not be said that it is not an attack on the State. Similarly if the attack is not directed against specific targetted groups of people to secure private or personal ends but is directed against people at large with a design to compel the Government to accede to secessation of any part of the territory of the State, it cannot be said that it is not a war writ large against established Government whose primary duty is to protect the lives of its people and territorial integrity of the State.
55. In the present case the objective of explosion caused by the accused persons is to attain by force and violence an object of 32 a general public nature i.e. secessationist in nature to compel the established government to accede to the demand of secessation of J&K from territory of India. Therefore the objective is secessasionist in nature and methods employed are subvertive and violent. The acts alleged and evidence produced against accused Tariq Ahmad Dar, Mohd Rafiq Shah and Mohd Hussain Fazli are not directed against a group of people due to personal enmity against them or to secure any private or personal ends but they are done to achieve objective of general public nature and so they prima facie amount to 'waging war against the govrernment' as laid down Magan Lal Radhakrishnan (Supra). Therefore, I am of the view that prima facie charges u/ss121/121A/122 IPC are made out abgainst Tariq Ahmad Dar, Rafiq Shah and Mohd. Hussain Fazli. Apart from the above, charges u/s 120B/302, 120B/307 in respect to Blast in Sarojini Nagar; charges u/s 120B/302, 120B/307 IPC in respect of Paharganj blast, and a charges u/s 120B/307 IPC in respect of Bomb Blast in Bus in Kalkaji are made out against Tariq Ahmad Dar. As against Rafiq shah, in addition to the above, charges under Sections120B/302, 120B/307 in respect of Saroji Nagar and Pahar Ganj Market blasts respectively and a charge u/s 307 IPC in respect of bomb Blast in bus in Kalkaji are prima facie made out against accused Mohd Rafiq Shah. Since, police has not filed challan against accused Mohd. Hussain Fazli in respect of Paharganj Market and Kalkaji Bus Blast and a challan against him has been filed only respect of Sarojini Nagar Blast, therefore, in addition to charges u/s 121/121A/122 IPC charges u/s 120B/302 and 120B/307 IPC in respect of blst in Sarojini Nagar Market are made out against him. Accused Tariq Ahmed Dar, accused Rafiq Shah and accused Farooque Ahmed Batloo are alleged to hve entered into conspiracy to cause explosions in Delhi 33 in which RDX had allegedly been used, therefore, provisions of Explosives Act are also attracted. According to record, it was the Tariq Ahmed Dar who had allegedly with the assistance of foreign agents arranged RDX with which explosions were caused. The intercepted conversations of accused Tariq Ahmed Dar specifically mentions about the persons responsible for the blasts and he had also mentioned that they have returned safely. He has also made reference about supply of bombs by foreign agents which were exploded in Delhi. There is statement of witnesses that it was accused Rafiq Shah who had lobbed explosive device in bus in Kalkaji. In other words bus explosion is attributed to accused Rafiq Shah. There is prima facie evidence on record that three explosions in Delhi were carried out in furtherance to conspiracy to which accused Tariq Ahmed Dar, Rafiq Ahmed Shah and Mohd Hussain Fazli were party. Therefore, prima facie charges under S. 4 of Explosive Substances Act in respect to blasts in Sarojini Nagar, Pahar Ganj and Kalkaji are made out against accused Tariq Ahmed Dar. So far as accused Rafiq Shah is concerned, charges under S. 4 of Explosive Substances Act in respect of Paharganj and Sarojini Nagar blasts and U/s 3(b) of the said Act against him for Kalkaji Blast are prima facie made out. Since accused Mohd Hussain Fazli has been challaned oly in respect of Sarojini Nagar, a charge U/s 4 of Explosive Substances Act is prima facie made out against him.
56. So far accused Gulam Ahmad Khan and Farooque Ahmad Batloo are concerned, the role attributed to the later is tht he arranged huge amount from undisclosed sources and through account of Gulam Ahmad Khan transferred the same to the account of Tariq Ahmad Dar in Srinagar to enable him to give effect to conspiracy. It is the case of the prosecution that both these 34 accused knew that the funds would be utilized for carryingout terrorist activities in Delhi, therefore, they have committed offences U/s 17 and 18 of Unlawful Activities ( Prevention) Act. It is also the case of the prosecution that offences U/s 16,17,18,19 and 20 are prima facie made out against accused Tariq Ahmed Dar, Rafiq Shah and Mohd Hussain Fazli. Ld Addl. PP has argued that these charges are prima facie made out against the accused persons.
57. Ld counsel for the accused persons has argued that Unlawful Activities ( Prevention) Act came into force in December, 2004 and the alleged acts of accused persons pertain to the period prior thereto, therefore, they can not be charged for the said offences. Secondly, it is argued that there is no evidence on record that any of the accused persons were members of any banned terrorist organization, therefore, none of the provisions of the said Act are attracted to the facts of the present case nor any charges thereunder can be framed gainst them.
58. Coming to first argument, Unlawful Activities ( Prevention) ct 2004 was passed by way of amendment of Unlawful Activities ( Prevention ) Act, 1967. The former act was enacted in December, 2004. However, by virtue of S.1 thereof, it was brought into force on 21st September, 2004 by deeming provision. Therefore, the Act of 2004 was effective in September, 2004. In earlier Act also definition of Terrorist act as given in S. 15 of the said Act is pari materia is the same as given in S. 16 of the New Act. Raising funds and conspiracy to commit terrorist acts were punishable under S 17 & 18 respectively of the Old Act. Thee very provisions are retained in the New Act also. Therefore, the continuation of the Old provisions in the New Act makes punishable the acts committed prior to New Act came into force, if they are also punishable under the New Act. S. 16 of the New Act 35 makes punishable commission of a terrorist act. S. 17 makes punishable raising of funds for purpose of committing terrorist act. Even an act which facilitates commission of a terrorist act has been made punishable under the above section. Conspiracy, incitement or facilitation in commission of a terrorist act are made punishable under S. 18 of the above Act. Being a member of a terrorist gang has been made punishable under S. 20.
59. Coming to the present case, accused Tariq Ahmed Dar, Rafiq Ahmed Shah and accused Mond Hussain Fazli are alleged to have entered into conspiracy to commit a terrorist act. The role ascribed to accused Tariq Ahmed Dar is that he had collected funds to commit terrorist act. Additional role ascribed to accused Mohd Rafiq Shah is that he himself committed a terrorist act by causing explosion in a bus in Kalkaji. Therefore, charges under Section 17 & 18 under Unlawful Activities ( Prevention ) Act are prima facie made out against accused Tariq Ahmed Dar. Charges under Section 16(b) and 18 of the said Act are prima facie made out against accused Mohd Rafiq Shah. A charge under S. 18 of the said Act is made out against Mohd Hussain Fazli.
60. So far as accused Gulam Ahmed Khan and Farooq Ahmed Batlu are concerned, the role discernable from the record to them is that accused Farooq Ahmed Batloo arranged huge funds from undisclosed sources and through the account of accused Gulam Ahmed Khan, he managed to transfer the same to the account of accused Tariq Ahmed Dar knowing that said funds would be used for terrorist act. Facilitation in commission of a terrorist act is made an offence under S 18 whereas raising funds is made punishable under S. 17 of Unlawful Activities ( Prevention ) Act. I am, therefore, of the view that prima facie charges under S. 17 & 18 of the said Act are made out against accused Gulam 36 Ahmed Khan and accused Farooq Ahmed Batloo.
61. Accused Tariq Ahmed Dar is also named as accused in Sarojini Nagar case as also in case FIR No 149/05 PS Lodhi Colony ( Special Cell) and since he has been charged U/s 16 & 17 in FIR No 560/05 PS Sarojini Nagar, no charge U/s 16 & 17 Unlawful Activities ( Prevention ) Act can be framed against him in FIR No 149/05 PS Special Cell, Lodhi Colony inasmuch as that would tantamount to multiplication of charges.
62. The next question which arises pertains to joinder of charges. Ind the pressent case accused Tariq Ahmad Dar, Mohd. Rafiq Shah and Mohd Hussain Fazli in furtherance of conspiracy to wage war against Government of India are alleged to have conspired to cause bomb blasts carried out. The bomb blasts took placed at three places and thus are in the nature of cause and effect or part of the same transaction. In this connection in State of AP vs Ganeshwara Rao AIR 1963 SC 1850 it has been held that substantial test for determining whether several acts are committed together so as to form one transaction depends upon whether they are so related to one another in point of purpose or as cause and effect or as principle and subsidiary acts as to constitute one continuous action. In Aftab Ahmed Khan vs State of Hyderabad AIR 1954 SC 436 it was held that mere fact that there are intervals of time between various acts could not necessarily impart want of continuity. In Purshotam Dalmia vs State of W.B. 1961 SC 1589 it has been held that court having jurisdiction to try offence of conspiracy committed in pursuance of conspiracy will be competennt to try such offences even committed out of its jurisdiction.
63. In view of these authorities since act alleged against the accused are alleged to have been committed in furtherance of 37 conspiracy to wage war against government of India, I am of the view that all the offences committed by accused are connected to one another in the point of time, cause and effect, principle and subsidiary and so they are required to be tried together. Since different cases are registered in respect of different transactions, but evidence sought to be adduced is common. Evicence of alleged conspiracy in the form of intercepted conversation between accused Tariq Ahmad Dar and allegely Abu Al Ka ma and Abu Ozefa, evidence of call details of various mobile phones of these accused and evidence of alleged collection of funds etc. are commoon. Except people killed or injured in different blasts are different. Even to support charge under Unlawful activities ( Prevention) Act, evidence regarding monetary transaction is the same. In the result the following charges are prima facie made out against sthe following accused:-
Name of accused FIR NO. & P.S. CHARGES
Tariq Ahmed Dar 560/05, Sarojini Nagar Ss.121,121A,122,120B/
302, 120B/307 IPC,
Ss.4 Explosive
Substances Act & S. 17
& 18 Unlawful
Activities ( Prevention)
Act.
533/05 Paharganj Ss.120B/302, 120B/307
IPC & Ss. 4 Explosive
Substances Act.
1120/05 Kalkaji Ss.120B/307 IPC &
S.4 of Explosive
Substances Act
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Mohd Rafiq Shah 560/05 Sarojini Nagar Ss.121,121A,122,120B/ 302,120B/307 IPC, S.4 Explosive Substances Act and S.18 Unlawful Activities ( Prevention ) Act.
533/05 Paharganj S. 120B/302, 120B/307 IPC & S. 4 Explosive Substances Act. 1120/05 Kalkaji S. 307 IPC & S. 3(b) Explosive Substances Act & S. 16(b) of Unlawful Activities ( Prevention ) Act. Mohd Hussain Fazli 560/05 Sarojini Nagar S.121,121A,122,120B/ 302, 120B/307 IPC, S.4ExplosiveSubstance Act & S. 18 Unlawful Activities ( Prevention) Act. Gulam Ahmed Khan 149/05 Special cell S. 17& 18 Unlawful Activities( Prevention Act) Farooq Ahmed Batloo 149/05 Special cell S. 17& 18 Unlawful Activities( Prevention Act)
64. Nothing said in this order shall be construed expression of opinion on merits of these cases and observations are only for the purpose of charge.
3965. The signed copy of this order be kept on the file of Case FIR N0 560/05 of PS Sarojini Nagar u/s 302/307/120B IPC and 16/17/18/20/23 Unlawful Activities (Prevention) Act which shall be main file. Copies of order be kept on file of other connected cases. For the purpose of evidence, all the cases are clubbed together. Evidence shall be recorded in the file of Case FIR No 560/05 of PS Sarojini Nagar as all the four cases stand clubbed together for evidence.
Announced on the Open Court
on 14.01.08 (BABU LAL)
ADDL SESSIONS JUDGE
DELHI
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