Punjab-Haryana High Court
Alafdin Alias Alfa vs State Of Punjab on 26 March, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No.1233-SB of 2008
Date of decision: March 26, 2010
Alafdin alias Alfa
.. Appellant
Vs.
State of Punjab
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Puneet Sharma, Advocate Amicus Curiae and
Mr. Mohd. Yusuf, Advocate for the appellant.
Mr. C.S. Brar, DAG, Punjab for the respondent.
A.N. Jindal, J
The accused-appellant Alafdin alias Alfa (herein referred as 'the
accused') allegedly being the member of Lashkar-e-Toeba and Hijbul
Mujahdin was prosecuted for the offence under Sections 3,4 and 5 of the
Explosives Act (herein referred as 'the Act'), having found in possession of
the explosive substances. Consequently, he was tried, convicted and
sentenced to undergo rigorous imprisonment for 10 years and to pay fine of
Rs.1000/- each under the aforesaid offences.
The facts, in brief, as culled out from the charge report are that
on 30.3.2004 ASI Mohinder Singh along with other police officials was
present in village Masandpur in connection with the investigation of the
case FIR No.117 dated 18.10.2002, under Sections 3 and 4 of the Act and
Section 25 of the Arms Act, at Police Station Goraya, where they received a
secret information that the group of extremists organization Lashkar-e-
Toeba and Hijbul Mujahdin namely Alfadin alias Alfa, Gulam Hussain,
Shafi Mohammad, Ali Mohammad and Faruq Ahmad resident of Ramban
District Doda (J&K) were present behind the bushes of burial ground of
village Masandpur and they were planning for a bomb blast with an
intention to cause devastation and if raid is conducted, they could be
arrested with huge RDX and other explosive substances.
Finding the information to the reliable, ASI Mohinder Singh
contacted CIA Staff Jalandhar for sending more force. After some time in-
Criminal Appeal No.1233-SB of 2008 -2-
***
charge CIA staff Inspector Gurmail Singh and other police officials reached the place, encircled the accused and apprehended all the five accused. On enquiry, they disclosed their names as Alfadin @ Alfa, Gulam Hussain, Shafi Mohammad, Ali Mohammad and Faruq Ahmad. Accused Shafi Mohammad was interrogated by the CIA staff, whereas, he interrogated the accused Alfadin alias Alfa. They disclosed that they had kept concealed 750 grams RDX by putting the same in a plastic box and a detonator along with wires, after putting the same in a plastic bag on the northern side of the bushes and he could get the same recovered. Pursuant to the aforesaid statement, the accused, while in a police custody, led the police party to the disclosed place and got recovered one plastic bag. On checking it, the accused was found in possession of RDX in one plastic bag. A small detonator along with wires was recovered from the second bag. After separating 50 grams of the RDX as sample, the remaining RDX was weighed and it was found to be 700 grams. It was converted into a parcels and all the articles so recovered from the accused were taken into possession vide recovery memo Ex.PC. Investigating Officer sent the ruqa Ex.PD, on the basis of which FIR Ex.PD/1 was recorded by SI Surinder Pal Singh. He prepared the arrest memo Ex.PE of the accused. He also prepared the rough site plan of the place of occurrence. On 2.4.2004, the accused further suffered a disclosure statement that he had kept concealed 12 kgs of RDX, 2 AK 47 assault rifles, one pistol from the forest, but no recovery was effected from the disclosed place. On 4.4.2004, the accused further made a disclosure statement but no recovery could be effected. On 7.4.2004, the accused, while in police custody, again made a disclosure statement Ex.PH that he could get recovered one rocket launcher, four shells of rocket launcher (golas) made in Russia wrapped in a plastic bag. Pursuant to the disclosure statement, he got recovered one plastic bag mouth of which was tied, containing 4 kgs RDX, one rocket launcher, five rocket launcher boosters, four shells of rocket launcher, receiver box for ID-2, three solar switches, two times switches, Japanese wireless set along with ariel were got recovered, which were taken into possession vide memo Ex.PJ. On 10.4.2004, the accused again made a disclosure statement Ex.PL, pursuant to which no recovery could be effected. The investigation was Criminal Appeal No.1233-SB of 2008 -3- *** completed and the challan was presented against the accused before Illaqa Magistrate who committed the same to the court of Sessions.
The accused was charged under Sections 3, 4, and 5 of the Act to which they pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined Kirpal Singh Reader to D.C. Jalandhar (PW1), C. Karnail Singh (PW2), MHC Jaswinder Singh (PW3), ASI Mohinder Singh (PW4) and HC Jagmohan (PW5).
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further explained that he has been falsely implicated in the case. He belongs to poor family and had come from J & K for livelihood for his small kids. Nothing sort of explosives or any other incriminating articles were recovered from him nor he had suffered any disclosure statement before the police as alleged. He has no connection with the alleged terrorist organizations. However, no evidence was led in defence.
The trial court on appreciation of the evidence observed that the testimonies of the official witnesses are at par and are as good as the testimonies of the independent witnesses are. It is quality of the evidence and not the quantity which is to be weighed while proving the factum with regard to recovery of the incriminating articles. Non joining of the independent witness is not fatal to the prosecution case. Consequently, the trial court while holding him guilty, convicted and sentenced him accordingly.
Arguments heard. Record perused.
At the very outset, I agree with the contention of the learned counsel for the appellant that no offence under Section 3 of the Act is made out. Section 3 of the Act reads as under :-
"3. Punishment for causing explosion likely to endanger life or property :- Any person who unlawfully and maliciously causes by -
a. any explosive substance of explosion of a nature likely to Criminal Appeal No.1233-SB of 2008 -4- *** endanger life or to cause serious injury to property shall, whether any injury to person or property has been usually caused or not, be punished with imprisonment for life, or with rigorous imprisonment of either description which shall not be less than ten years, and shall also be liable to fine;
(b) any special category explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death, or rigorous imprisonment for life, and shall liable be liable to fine.
No explosion was caused by the accused, but in the present case, only possession of the exclusive substances stands proved, as such offence under Sections 4 and 5 of the Act could be said to be certainly made out against the accused.
Section 4 of the Act reads as under :-
"4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property - Any person who unlawfully and maliciously -
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substances or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India.Criminal Appeal No.1233-SB of 2008 -5-
*** Shall whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished :-
(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Section 5 of the Act reads as under :
"5. Punishment for making or possessing explosive under suspicious circumstances - Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished :-
(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine;
(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
In order to prove that the offence is covered under Section 4 of the Act, the prosecution is essentially to prove if the accused caused any explosive substance or keeps in possession any explosive substance with an intention to cause an explosion, whereas, in case the accused is found in Criminal Appeal No.1233-SB of 2008 -6- *** possession of any explosive substance and it is suspected that the accused has not kept the same for any lawful purpose, then Section 5 of the Act is attracted. While further elaborating Section 5 of the Act, is attracted only if :-
(i) the substance in question is explosive substance;
(ii) the accused makes or knowingly have in his possession or have under his control any explosive substance; and
(iii) he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful act.
However, sentence qua keeping in possession with intention of causing explosion or possession of explosives were kept at par.
The burden to prove the aforesaid ingredients for the offence as referred to above is upon the prosecution. The moment the prosecution discharges the onus and it is proved that accused is in possession of explosive substance, then onus shifts to the accused in order to show that he was making or possessing the explosive substance for lawful object. The conscious possession of such dangerous incriminating article is sufficient to prove the intention of the accused and raise suspicion against him. The star witness in this case is Mohinder Singh who has given detailed statement while proving the recovery of the explosive substance i.e. 750 grams of RDX, small detonator and a long wire. The prosecution has fully proved the statement Ex.PB made by the accused under Section 27 of the Evidence Act and the recovery effected from him pursuant to the said statement. Not only the aforesaid RDX was recovered but more incriminating articles were also recovered pursuant to the different statements made by him. The testimony of Mohinder Singh stands corroborated by HC Jagmohan Singh (PW5) who has also categorically stated about the making of the statement Ex.PB by the accused and the recovery of the explosive substance from the accused pursuant thereto. The items so recovered from the accused on analysis by the Deputy Director (Toxicology), Forensic Science Laboratory, Chandigarh were found to be explosives vide report Ex.PM.
Criminal Appeal No.1233-SB of 2008 -7-*** No merit could be seen in the statement of the accused that Jagmohan Singh has stated contrary to the allegations in the FIR while disclosing that the accused was already with the police since 29.3.2004 when the recovery was effected. In this regard it may be mentioned that Jagmohan Singh (PW5) has stated in examination in chief that the accused was arrested on 30.3.2004 and the accused was arrested when he along with other police party was present in connection with the investigation of the case FIR No.117 dated 18.10.2002. He has no where stated in examination in chief that the accused was accompanying them at the time of investigation of the aforesaid FIR No.117. However, he appears to have felt perplexed while looking at the disclosure statement Ex.PB which is projected to be prepared on 29.3.2004. As a matter of fact, the original statement Ex.PB has not seen the light of the day and the photo copy so produced reveals that it was prepared in connection with the present case. However, the date under the signatures of ASI Mohinder Singh was tempered from 30.3.2004 to 29.3.2004. Thus, he appears to have made mis- statement in order to make his statement in consonance with the copy of the statement Ex.PB made under Section 27 of the Evidence Act. The tempering appears to be apparent as this document Ex.PB was prepared in connection with the FIR dated 30.3.2004. Certainly, Ex.PB must have been prepared in connection with the FIR dated 30.3.2004 as such it must have come in existence on 30.3.2004. Even otherwise, Jagmohan Singh (PW5) has given detailed statement regarding recovery of 5 explosives from the accused and it is consistent with the statement of Mohinder Singh in all material particulars, therefore, reliance could be placed on his testimony qua arrest and recovery from the accused on 30.3.2004.
As regards the non joining of the independent witness, it may be observed that the testimonies of the official witnesses cannot in any way be discarded merely on the ground that they need corroboration from the independent source. The police party was present in connection with the investigation when the secret information was received qua the presence of the member of Lashkar-e-Toeba, as such, no independent witness normally joins in such a sensational cases particularly where terrorists are involved.
Criminal Appeal No.1233-SB of 2008 -8-*** In any case, the testimonies of the police officials being at par with the official witnesses, unless they are seriously biased or prejudiced against the accused could certainly be placed reliance if on scrutiny, their evidence is otherwise proved to be trustworthy. The court in case of official witnesses has to scrutinize the testimonies with more care and caution so as to rule out any false implication in the case. In the present case, after close scrutiny of the statements of the official witnesses, no loophole could be detected so as to condemn them as interested, biased or partial witnesses.
As regards sanction Ex.PA, no fault could be found with the sanction letter.
No other argument has been raised.
Having examined the custody certificate produced by the prosecution, it transpires that the accused is a habitual offender. He was earlier sentenced in FIR No.3 dated 6.1.2004 under Sections 4 and 5 of the Act, 151 of Railway Act and 427 of the IPC, at Police Station G.R.P. Ludhiana and also in FIR No.117 dated 18.10.2002 under Section 3,4 the Act, 25 Arms Act at Police Station Goraya, therefore, no leniency could be extended in case of such an offenders who along with others are not only destroying the peace of Punjab but of the country as a whole, as such they do not deserve any leniency on the quantum of sentence.
Resultantly, this appeal is partly accepted. The accused is acquitted of the charges under Section 3 of the Explosive Substances Act, whereas the judgment of conviction and sentence under Section 4 and 5 of the Explosive Substances Act, as well as 25 of the Arms Act is confirmed.
Mr. Puneet Sharma, Advocate Amicus Curiae may claim remuneration from the Competent Authority as per rules.
March 26, 2010 (A.N. Jindal) deepak Judge