Bombay High Court
Aslam Shabbir Sheikh @ Bunty Jagirdar vs The State Of Maharashtra on 1 October, 2015
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
ba.1719.13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1719 OF 2013
Aslam Shabbir Sheikh @ Bunty Jagirdar,
Age: 40 years, Occ: Business,
R/at, Ward No. 2, Jahagir Building,
Srirampur, Ahamednagar,
Maharashtra
(Presently in Judicial Custody at
Thane Central Prison, Thane) ...Applicant
(Org.Acc.No.8)
Versus
The State of Maharashtra,
(At the instance of I.O. ACP,
ATS, Mumbai) ...Respondent
Mr. A. P. Mundargi, Sr. Counsel with Mr. Niranjan Mundargi for the
Applicant
Mr. Raja Thakare, Spl. P.P. with Ms. P. P. Shinde, A.P.P for the Respondent-
State
CORAM : REVATI MOHITE DERE, J.
RESERVED ON : 27th AUGUST, 2015
PRONOUNCED ON : 1ST OCTOBER, 2015
JUDGMENT :
1. By this application, the applicant seeks his enlargement on bail in connection with C.R. No. 168 of 2012 initially registered with the Deccan Police Station, Pune and subsequently transferred to ATS Police, SQ Pathan 1/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:35 ::: ba.1719.13.doc Mumbai and re-registered as C.R No. 9 of 2012, for the alleged offences punishable under Sections 307, 435 and 120B of the Indian Penal Code read with Sections 3, 4 and 5 of the Explosive Substances Act read with Sections 3 and 25 of the Arms Act and under Sections 16(1)(b), 18, 20, 23, 38 and 39 of the Unlawful Activities (Prevention) Act of 1967 as amended in 2008 and under Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act (`MCOC Act').
2. The case pertains to five bomb blasts that took place in Pune City at around 7:00 p.m in the areas of Deccan Gymkhana, Bal Gandharv Rang Mandir and other adjoining areas. A live bomb was also recovered from one of the spots. These bombs were placed in the basket of bicycles.
Pursuant to the said five blasts that took place at various locations in Pune City, an FIR came to be lodged initially with the Deccan Police Station, Pune as against unknown persons. Thereafter, the investigation came to be transferred to the ATS, Mumbai. Nine accused came to be arrested in connection with the aforesaid offences and some accused are stated to be absconding. According to the prosecution, the said bomb blasts were planned by the accused with the intent of striking terror in the minds of the SQ Pathan 2/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc people and for causing deaths/injuries to persons and/or causing loss or damage or destruction of property. According to the prosecution, the said bomb blasts were planned to avenge the death of one Quatil Siddique, a member of a banned terrorist organization, Indian Mujahideen. It may be noted here, that Quatil Siddique was arrested in connection with the conspiracy to commit bomb blast at Dagadu Sheth Ganpati Mandir in Pune.
Pursuant to his arrest, Quatil Siddique was lodged at Yerwada Central Jail, Pune, where he was murdered by two persons in the Jail.
ig It is the prosecution case, that to avenge the death of Quatil Siddique, the members of the Indian Mujahideen, a banned terrorist organization, acting as an organized crime syndicate conspired to cause the bomb blasts. It is alleged by the prosecution, that initially there was a plan to kill the assailants of Quatil Siddique when they were brought to Court by firing at them.
However, as the said plan could not be executed, it was decided to cause the bomb blasts.
3. The present applicant is original accused No. 8, who was arrested in the aforesaid C.R on 13 th January, 2013. Mr. Mundargi, learned Senior Counsel for the applicant contended; (i) That the applicant was SQ Pathan 3/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc admittedly not involved in the commission of the bomb blasts that occurred on 1st August, 2012; (ii) That the firearm weapons and cartridges allegedly supplied by the applicant were admittedly not used in the commission of the offence/bomb blasts that took place on 1st August, 2012. He submitted that infact one pistol allegedly sold by the present applicant was recovered from Irfan Mustafa Landge (accused No. 4) and that two pistols were recovered at the instance of Firoz @ Hamza (accused No. 3) in a Delhi Arms case. He submitted that in the Delhi Arms case, the present applicant has not been arraigned as an accused; (iii) Nothing incriminating has been recovered at the instance of the present applicant nor is there any confession made by the applicant under Section 18 of the MCOC Act. He submitted that the only alleged material as against the applicant is, the confessional statement of the co-accused Irfan Landge, which is recorded under Section 18 of the MCOC Act. According to him, the said confession of the co-accused Irfan Landge does not, in any way, show that the applicant was involved in the conspiracy to commit the bomb blast / in the commission of the bomb blasts that took place on 1 st August, 2012. He submitted that at the highest, the confessional statement shows that firearms and cartridges were sold by the applicant to Irfan Landge, much SQ Pathan 4/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc prior to the hatching of the conspiracy to commit the bomb blasts. He submitted that infact, the firearms and cartridges were allegedly sold by the applicant to Irfan Landge (original accused No. 4) and Imran Khan (original accused No. 2) for a consideration; (iv) Lastly, he submitted that merely because it has come in the confessional statement of the co-accused that the applicant shared Jihadi ideology, that by itself, is not sufficient to show the complicity of the applicant in the present case.
4. Learned Special P.P Mr. Thakare opposed the bail application.
At the outset, it may be noted that the learned Special P.P does not dispute the fact, that the applicant was not involved either in the preparation of planting of the bombs or in the actual bomb blasts that rocked Pune City on 1st August, 2012, nor does he dispute the fact, that the firearms and cartridges allegedly supplied by the applicant to the co-accused were not used in the commission of the said offence.
5. According to the learned Special P.P, the background of the commission of the present offence i.e. of serial bomb blasts is to be considered. He relied on the confessional statement of Irfan Landge in SQ Pathan 5/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc support of his contention to show that the present applicant had agreed to supply firearms to avenge the death of Quatil Siddique. He submitted that the initial plan of the members of the Indian Mujahideen was to take revenge of Quatil Siddique's death, by firing at his assailants whilst they were brought to the Court. It is for this reason, that Irfan Landge (accused No. 4) and Imran Khan (accused No. 2) approached the present applicant for procurement of the firearms. He submitted that the confessional statement of Irfan Landge shows that the applicant was aware of the purpose for which the firearms and cartridges were acquired, as the same was informed to the applicant by Irfan Landge; that the applicant allegedly sold the firearm and cartridges and also disclosed to Irfan Landge that he could be contacted any time for anything else (bada saman) and that he would provide the same. He submitted that the confessional statement of Irfan Landge clearly shows that in April, 2012, Riyaz Bhatkal had sent Rs.
1 lakh by hawala to Irfan Landge and asked him to give the said amount to Imran Khan (accused No. 2) and on instructions of Riyaz Bhatkal in May, 2012, Imran Khan asked Irfan Landge to procure two pistols from the present applicant.
SQ Pathan 6/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 :::ba.1719.13.doc
6. The learned Special P.P. placed emphasis on the fact, that initially, the applicant had refused to sell the firearms, but when informed that the firearms were required for the purpose of Jihad, the present applicant readily gave two pistols and 9 live cartridges, albeit for a consideration. According to the learned Special P.P., the applicant by supplying these firearms, not only committed an illegal act, but also rendered assistance to the organized crime syndicate and as such the applicant had reason to believe that the persons who purchased the firearms were engaged in assisting the organized crime syndicate and that after having knowledge of the same, had sold the pistols in furtherance of their illegal activities. According to the learned Special P.P, the act of the present applicant would come well within the definition of the term `abet' in Section 2(1)(a) of the MCOC Act and under Sections 2, 3 and 4 of the Explosive Substances Act. He submitted that Explanation 2 of Section 108 of the Indian Penal Code makes it clear that for constituting an offence of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused. He submitted that the act of the applicant i.e. of supplying pistols and cartridges for eliminating the accused who had murdered Quatil Siddique, SQ Pathan 7/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc would squarely fall within the purview of Section 3(2) of the MCOC Act.
He submitted that the provision of Section 3(2) of the MCOC Act is para materia with Section 18 of the UAPA Act. He submitted that considering the material on record, it cannot be said that there are no reasonable grounds for believing that the applicant is not guilty of the offences with which he has been charged. He submitted that the present offence has been committed when the applicant was on bail.
7. Heard learned Senior Counsel for the applicant and the learned Special P.P. at length. Both the learned Counsel relied on several judgments in support of their contentions. In order to consider the role of the present applicant in the commission of the alleged offence, it would be necessary to consider the material that has come on record as against the applicant. At the outset, it may be noted that admittedly even according to the prosecution, the applicant was not involved in the commission of the bomb blasts that took place on 1 st August, 2012 nor is it the prosecution case that the firearms allegedly sold to Irfan Landge (accused No. 4) were used in the commission of the offence. A perusal of the final report reveals the prosecution case and the material qua the applicant which is as under:
SQ Pathan 8/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 :::ba.1719.13.doc
(i) that during interrogation, Irfan Landge, original accused No. 4 and Imran Khan, original accused No. 2 disclosed that they were in contact with the present applicant and had approached him and asked him to assist in carrying out Jihad by providing firearms and ammunition for the purpose of assassination of religious/political leaders and also for firing on the police. It is alleged that the present applicant also shares the same Jihadi ideology and hence, he knowingly assisted the accused by providing firearms and ammunition, knowing that the firearms were being procured for the purpose of assassination of religious/political leaders and for firing on the police;
(ii) that during the course of investigation of this case, one country-made pistol, one magazine, four live cartridges acquired by Irfan Landge (accused No. 4) from the present applicant, were recovered at the instance of Irfan Landge under a memorandum panchnama;
(iii) that the accused Nos. 1 to 4 had revealed after their arrest, that two pistols and ammunition sold by the present applicant were recovered SQ Pathan 9/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc by the Delhi Special Cell, at the instance of Firoz @ Hamza (accused No.
3) from his workshop at Pune under a memorandum panchnama in C.R No. 16 of 2012 (it is not in dispute that the applicant has not been arraigned as an accused in the said C.R by the Delhi Special Cell);
(iv) that investigation has revealed that the present applicant is a resident of Shrirampur, Maharashtra and is a known criminal having Jihadi ideology, and is a close associate of Saquib Nachan (a convict in the Ahmedabad Bomb Blast case) and is also an accused in a case alongwith Saquib Nachan; and;
(v) that statements of witnesses reflect the jihadi attitude of the applicant, his involvement in unlawful activities and his association with members of terrorist organisations.
8. The aforesaid five grounds are set out in the final report as evidence collected as against the present applicant. As far as the memorandum panchnama under Section 27 of the Evidence Act, of recovery of a firearm and cartridges at the instance of Irfan Landge SQ Pathan 10/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc (original accused No. 4) is concerned, that is a matter of record. The facts as disclosed in the memorandum statement being inadmissible, except to the extent of discovery of weapons, cannot be considered. The confessional statement of Irfan Landge (original accused No. 4) was recorded under Section 18 of the MCOC Act on 9 th January, 2013. Certain paragraphs are being reproduced which have been relied upon by both, the learned Senior Counsel for the applicant as well as the learned Special P.P. The relevant paragraphs read thus:
"lu 2004 esa gekjs eksgYys esa jsgusokyk eqLrQk l¸;n us ges oftZ'k[kkus esa fOgfMvks ds tjh, 2 flMh fn[kkbZ Fkh A rHkh ge 15 ls 20 yksx Fks A mlesa lehj IyEcj vkSj dgh yksx gkthj Fks A mlesa xqtjkr naxs ckcjh eLthn dks 'kghn fd;k Fkk A oSls gh tEew df'ej vkSj vQxf.kLrku ;gkWa ij gks jgs eqlyekukasij tqYe ds ckjs esa fOgfMvks fDyIl Fks A ;g lc ns[kdj eSa tlckrh gks x;k Fkk A lu 2005 esa eSusa lh ,l- Vh-] cacbZ ds vatweu&bLyke dkWyst easa 'izeks'ku vkWQ mnqZ yWXost Mh-
Vh- ih- Mks;dk ;qfuOgflVh' dkslZ ds fy, nk[ky gqvk Fkk A mlh njE;ku Jhjkeiwj esa jsgusokyk caVh tkxhjnkj mlds dsl ds fy, cacbZ ls'ku dksVZ esa vkrk Fkk A caVh tkxhjnkj dk lgh uke vLye 'ks[k gS A ls'ku dksVZ esa mlus eq>s iM?kk fHkoaMh rk fHkoaMh esa jsgusokys lkdhc ukp.k dh mez 50 lky gksaxh mlls SQ Pathan 11/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc feyk;k Fkk A lkdhc ukp.k eq>s ges'kk ftgkn ds ckjs esa le>krk Fkk vkSj dsgrk Fkk gj eqlyuksadks ftgkn djuk t:jh gSaA mlds ckrks ls esjs fny esa Hkh ftgkn djus dk tlck iSnk gqvk A lu 2006 esa eqLrQk l¸;n ds lkFk vkSjaxkckn vkSj chM ds dkQh lkjs yMds ,-ds- 56] jk;QYl xksfy;k vkSj vkj-Mh- ,Dl dh xqukgesa idMs x;s Fks A tqu 2006 esa] eSa esjk bErsgku nsdj xko okil vkx;k A ......................
tqykbZ 2011 ls eS] vln] bejku vkSj fQjkst lk;cj dWQs vkSj vU; ek/;eksals vDlj QS;kt ls pWVhax djrs Fks A QS;kt dkx>h us je>ku efgus esa eq>s vkSja caVh tkxhjnkj dks lkdhc ukp.k ls feyus dks dgk rc ge nksuks mlds ?kj iM?kk fHkaoMh tkdj lkdhc ukp.k ls eqykdkr dh Fkh A rc eq>s lkdhc ukp.k vkSj caVh tkxhjnkj QS;kt dkx>h ds fy, dke djrs gS] ;g ckr ekywe iMh A QS;kt dkx>h ftgkn ds fy, uk gh iSlks dh enr dj jgk Fkk uk gh vlyk Hkst jgk Fkk A blfy, xqLlk gksdj ;g ckr geus dk'khQ dks crkbZ A mlds ckn fMlsacj 2011 ds vk[khj esa QS;kt dkx>h us ges fj;kt HkVdy dk bZ&esy vk;- Mh- nsdj mlds dkWUVDV esa tkus dks dgk a fj;kt HkVdy baMh;u eqtkghn~nhu ls rkyqd j[krk gSa] ;g ckr ges ekyqe Fkh A tc ge yksxksus ifgyhckj fj;kt HkVdy dks bZ& esy ij dkWUVWDV fd;k rc oks gekjs pkjksds ckjs esa vPNh rjgls tkurk Fkk ;g ckr SQ Pathan 12/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc gesa ekywe iMh A ge pkjksHkh ftgkn djus ds fy, rS;kj gS A ;g ckr geus fj;kt dks crk;h Fkh A fj;kt HkVdy us ges eksckbZy ds tjh, fuEcq> lkW¶Vosvj dk fdl rjg ls bLrseky djuk \ ;g ckr pWVhax ds tjh, fl[kkdj viuk vk;- ih- gkbZM djus ds fy, socks24.org ds ckjs esa ges fl[kk;k Fkk A ge vyx& vyx eksckbZy Qksu ls fj;kt HkVdy ls pWVhx ds tjh, laidZ esa Fks ;g ckr geus dk'khQ dks crk;h A eSa esjs eksckbZy Qksu ua- 8855003123 vkSj 8446921781 ds tjh, vln [kku bejku [kku] fQjkst l¸;n] equhc eseu] Qk:[k ckxoku vkSj dk'khQ fc;kckuh ds laidZ esa Fkk A eSa QS;kt dkx>h] bdcky HkVdy vkSj fj;kt HkVdy ls vyx & vyx bZ&esy vk;- Mh ij pWVhx djrk Fkk A eSa esjk frnd.fair bl ;kgweslsatj vk;- Mh ls fj;kt HkVdy ds vikkijaan bl ;kgw eslatj vk;- Mh ij pWV djrk Fkk A bl rjg ls eSa esjs lovblind bl ;kgw eslatj vk;- Mh ls QS;kt dkx>h ds lkFk mlds skay blue bl ;kgw eslsatj vk; Mh ij pWV djrk Fkk A blh rjg ls eSa esjs 2 vyx& vyx fuEcq> vk; Mh- ls fj;kt HkVdy vkSj QS;kt dkx>h ds lkFk laidZ esa Fkk A eSa esjk fuEcq> vk; Mh 0-legend blls fj;kt HkVdy dk fuEcq> vk;- Mh- zoros5060 bl ij laidZ esa Fkk A blh rjg eSa esjk nqljk fuEcq> vk;- Mh- silver 232 blls QS;kt dkx>h ds lkFk mldk fuEcq> vk;- Mh- school234 bl ij laidZ esa Fkk A .........................SQ Pathan 13/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 :::
ba.1719.13.doc vizSy 2012 esa fj;kt HkVdy us eq>s flyOgj bu gkWVsy ds ikl esa gokys ds tjh, 1 yk[k :i;s Hkstdj og iSlk bejku dks nsus dks dgk Fkk A mlds eqrkchd eSusa og gokysdk iSlk vkSjaxkckn esa tkdj bejku dks fn;k A fj;kt HkVdy ds dsgusls ebZ 2012 esa bejku us eq>s 2 fiLry pkfg,] ,Sls crkdj mlus caVh tkxhjnkj ls feykus dks dgk A nqljs fnu ge nksuks caVh tkxhnkj ls feyus Jhjkeiwj pys x;sA caVh ls feydj tc ge yksxksus mlls fiLry dh ekWax dh rks 'kq: esa mlus euk dj fn;k ij tc bejku us mls ;g 2 fiLry ftgkn ds fy, pkfg, ,Sls crk;k A rc mlus 70 gtkj esa 2 fiLry vkSj 9 jkÅaM fn, A og nksuksa fiLry vkSja jkÅaM bejku ds ikl Fkh A 13 ebZ 2012 esa esjh 'kknh ds fnu eSaus ------ vkSj ------- dks vln [kku ls feyk;k Fkk A esjs 'kknh esa iquk ls fQjkst l¸;n Hkh vk;k Fkk A tqu 2012 esa baMh;u eqtkfgn~nhu la?kVu ds drhy fl/nhdh dk ;sjoMk tsy esa 'kjn eksgG vkSj vyksd Hkkysjko us dry fd;k Fkk A fj;kt HkVdy vkSj QS;kt dkx>hus fpMdj bl ckr dk rqjar cnyk SQ Pathan 14/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc ysuk pkfg, ,Sls ge yksxks dks crkdj dksVZ esa tkdj mu nksuks dh gR;k djus dks dgk Fkk A ml oDr gekjs ikl flQzZ 2 fiLry Fks A fQjkst l¸;n us eq>s 30 gtkj :i;s nsdj caVh tkxhjnkj ls vkSj 1 fiLry [kfjnusdks dgk A mlds eqrkchd esa caVh tkxhjnkj dks feydj mls ;g ckr crkbZ rqjar mlus eq>s vkSj 1 fiLry vkSj 4 jkmaM fn;k ml oDr caVh tkxhjnkjus bl dke esa dksbZ cMk lkeku pkfg, ig rks mldk Hkh barstke gks tk,xk] ,Sls crk;k A og fiLry vkSj jkÅaM ysdj esa esjs ?kjij pyk vk;k A bejku vkSj fQjkst us 'kjn vkSj vyksd ds ckjs esa tkudkjh fudkydj mudk dksVZ dk MsV fudkyk Fkk A mUgksus ,Sls crk;k dh] dksVZ esa flD;wfjVh dh otg ls dke djuk eqf'dy gSa A fQj ge yksxksus 'kjn eksgG vkSj vyksd Hkkysjko ds ifjokj okyksa ds mij vWVWd djus dk vkSj tc mudks ;sjoMk tsy ls dksVZ esa ysdjtkrs gSa rc muds mij Qk;jhax djuk ;k mudh xkMh dks cEc CykLV ls mMk nsuk ,Sls Iyku fd;s Fks A ysdhu fj;kt HkVdy vkSj QS;kt dkx>h us ges iquk SQ Pathan 15/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc vkSj cacbZ esa cEc CykLV djds drhy fl/nhdh ds dry dk cnyk ysuk pkfg, ] ,Sls crk;k A mlh nkSjku fj;kt HkVdy us gesa iquk cacbZ dh rjQokys byk[ks esa HkkMsls ?kj ysus dks dgk Fkk A eS] vln vkSj bejku iquk esa fQjkst ds "Option by Firoz" diMks dh nqdku esa ys x, A ml nqdku ds dschu esa geus fQjkst] equhc vkSj Qk:[k dks ;g ckr crkbZ A oks frUgks Hkh bl dke ds fy, rS;kj gks x;s A mlh oDr vln us fQjkst vkSj eq>s fiaijh byk[ks esa HkkMs ls :e ysus dks dgk A vln [kku ds dgus ds eqrkfcd cEc CykLV ds dke ds fy, cksxl fledkMZ ds isij cukus dh ftEesnkjh Qk:d ds mij lkSih xbZ vkSj eksckbZy Qksu vkSj fledkMZl [kfjnus dh ftEesnkjh equhc dks lkSih xbZ A mlds ckn ge frUgks okil pys vk;s A ..............................
fj;kt HkVdy ds dgus ds eqrkfcd eSa vkSj fQjkst 18 tqykbZ 2012 dks 'kkdhj vkSj vgen dks dklkjokMhokys HkkMs ds ¶yWVij ysdj x;s Fks A mlds ckn eSa vkSj fQjkst vius ?kj pys x;s A mlds djhc 2 fnu ds ckn vln vkSj bejku esjs ?kj ij vk;s Fks A rc bejku ds gkFk esa cMh jsX>hu dh cWx Fkh A vln ogkWa ls okil pyk x;k A eSa vkSj bejku dklkjokMh ds ¶yWV ij x, rHkh bejku us og cWx 'kkdhj dks nh Fkh A rc mlus og cWx [kksydj ns[kk rc mles ckWy csjhax vkSj 2 fiLVy Fks A eSa bejku dks NksMdj fQjkst ds SQ Pathan 16/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc ikl pyk x;k A jkr esa eSa vkSj fQjkst [kkuk ysdj dklkjokMh ¶yWVij vk x;s A jkr esa [kkuk [kkus ds ckn vgen vkSj 'kkdhj us muds cWx ls dqN lkeku fudkyk mles 3 rS;kj cEc ij mles ldhZV ugha yxk gqvk Fkk] dkQh lkjs ftysVhu fLVDl ,d fVu ckWDl] 3 ydMh ds [kkyh ckWDl] lksYMjhax e'khu] lksY;q'ku V;qc] gkrksMh] 6 ckjh'k ds tWdsV vkSj eksph f[kys Fks A ml mDr vgen vkSj 'kkdhj us ges cEc vkSj ldhZV ds ckjs esa dkQh lkjh tkudkjh nh Fkh A tc bejku us mUgs ^^vki yksxks us dgkWa ij Vªsuhax yh gS ^^ ,Sls iqNk rc ^^;klhu HkVdy us mUgs Vªsuhax nh gS^^ ,Sls crk;k A 'kkdhj vkSj vgen us fiLVy gkFk esa ysdj iqfyl vkrs gh njoktk dSls [kksyuk \ dkSu ls vWxyls iqfyl is Qk;j djuk\ ;g lc crk;k Fkk A mlds ckn fQjkst pyk x;k A nqljs fnu lqcg fQjkstt okil vk;k A 'kkdhj us fQjkst dks fVu dk CkkWDl fn[kkdj mls ,Sls 6 ckWDl cukds ykus dks dgk A eSa vkSj fQjkst okil pys x;s A 'kke esa fQjkst us mlds nksLr 'kguokt ds ikl ls 6 fVu ds ckWDl cuok;s A eSa vkSj fQjkst ,d Vscy QWu] 6 fVu ds ckWDl vkSj jkr dk [kkuk ysdj dklkjokMh ¶yWVij pys x;s A jkr dk [kkuk [kkus ds ckn eSa] vgen] fQjkst] bejku vkSj 'kkdhj us fVu ckWDl esa ckWy csjhax ,d ykbZu ls yxkus dk dke pkyw dj fn;k A nqljs fnu fQjkst vkSj vgen bysDVªhdy lkeku [kjhnh djus ds fy, pys x;s A eSa fj;kt HkVdy ds lkFk pWVhax djus ds fy, fQjkst ds nqdkuij pyk x;k A fj;kt HkVdy ds dgus ds eqrkfcd eSus fQjkst dks gokyk ysus dks dgk A fQjkst nksigj esa 2 yk[k gokyk ysdj pyk vk;k Fkk A mlds ckn eS vkSj fQjkst okil dklkjokMh ds ¶yWVij pys x;s A SQ Pathan 17/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc ml oDr vgen ekdsZVls lksY;q'ku V;qc] ok;j] cWVjh] bysDVªkWfuDl ikVZl] 6 dWf'kvks fjLV okWp ysdj vk;k Fkk A ml fnu ls 23 tqykbZ 2012 ds 'kke rd ge pkjks us feydj vkSj 3 cEc cuk;s A .........................."
9. There is a statement of one witness, dated 15 th January, 2013, who is an acquaintance of both, the applicant and Irfan Landge. He has disclosed in the said statement that he was aware that Irfan Landge was in touch with the present applicant and that Irfan Landge and Imran Khan would come to Shrirampur to meet the applicant from 2008. It is alleged by the said witness that the present applicant had disclosed to him in July, 2012 that Irfan Landge, Imran Khan and their friend were working for Indian Mujahideen, a terrorist organization and that, the said persons were going to take revenge for the death of Quatil Siddique's murder. He has alleged that the applicant had disclosed to him that for the said Jihadi work, he had given three pistols and cartridges.
10. Apart from the aforesaid, there are statements of two witnesses which have been recorded under Section 164 of the Code of Criminal Procedure. One of the witnesses has stated as under :
SQ Pathan 18/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 :::ba.1719.13.doc That in 2005, he had gone to visit Maulana Zameer along with his friend. He has stated that his friend disclosed to him that he had some friends in Aurangabad, who worked for Jihad and disclosed the names of Maulana Ameer, Bilal, Aaqif Biyabani, Kashif Biyabani, Abdul Aziz, Zubair, etc. He has stated that Maulana Zameer introduced them to the aforesaid persons and there was discussion on Jihad with respect to Babri Masjid and Godhra issues. He has stated that in 2006 in the Aurangabad Arms Hall case, Maulana Ameer, Bilal, Aaqif Biyabani, Abdul Aziz, Zubair and Sayyed Mustafa were arrested. He has stated that he met Kashif Biyabani in the Mumbai Sessions Court. He has stated that the persons who were in custody were asking Kashif to recruit new persons for Jihad.
He has further alleged that Kashif disclosed to him that he was in touch with Fayyaz Qagzi and asked him to go and meet Fayyaz Qagzi in Saudi.
He has stated that Irfan Landge after completing his education had come to reside in Raj Nagar in 2007 and that he had met Irfan Landge who used to talk about Jihad. He has stated that Kashif had given him books on Jihad and that he had given the said books to Irfan Landge. He has stated that thereafter all the aforesaid persons would regularly chat with each other SQ Pathan 19/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc and that they would regularly meet one another. He has stated that the said persons would refuse to disclose anything to him or keep in touch with him.
He has stated that the present applicant, a resident of Shrirampur would meet Saquib Nachan and that both had Jihadi ideologies.
Second witness whose statement is recorded under Section 164 Cr. P. C., has stated as under :
The said witness has stated that he knew the present applicant from 1997 and that the present applicant was his relative. He has stated that in a murder case at Padga, the present applicant was arrested and that the said witness had gone to meet the present applicant in Mumbai along with the cousin of the applicant. He has stated that after two to three years, the present applicant was acquitted from the said case. He has stated that after the applicant's acquittal, he started harbouring Jihadi ideologies. He has stated that he knew Irfan Landge, and that Irfan Landge and the applicant were in touch with one another. He has stated that the present applicant had also disclosed to him that Imran Khan and Irfan Landge belong to the Indian Mujahideen group and that they work on Jihadi lines and that Saquib Nachan, a resident of Padga also has Jihadi ideologies. He SQ Pathan 20/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc has further stated that in July, 2012, when he met the applicant, the applicant had disclosed to him, that Irfan Landge and Imran Khan had taken three pistols and live cartridges from him and that the applicant had supplied the same to the said persons to avenge the death of Quatil Siddique and that for doing Jihad work.
11. The question that falls for consideration is whether the aforesaid material qua the applicant is sufficient to deny bail to the applicant. As noted earlier, the applicant was admittedly not part of the bomb blasts that took place on 1st August, 2012, nor the weapons/cartridges allegedly supplied by the applicant to Irfan Landge and Imran Khan, were used in the said offence. A careful perusal of the confessional statement of Irfan Landge reflects that the applicant was not concerned with the bomb blast and it prima facie appears that he was not aware of the conspiracy to commit bomb blast in Pune city. The material qua the applicant appears to be, that he supported Jihadi ideology and supplied pistols and live cartridges to Irfan Landge and Imran Khan to avenge the death of Quatil Siddique, however, admittedly, the said weapons/cartridges were not used by the co-accused in the bomb blast. Even the statements recorded under SQ Pathan 21/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc Section 164 do not, in any way, show that the applicant was aware of the conspiracy to commit bomb blast. All that the statements under Section 164 show is that the applicant knew Irfan Landge and Imran Khan. It is pertinent to note that the applicant is stated to harbor Jihadi ideologies with Saquib Nachan, however, Saquib Nachan has not been made a co-accused in the said case. Prima facie, at this stage, there appears to be no nexus between the supply of arms and ammunition by the applicant to Irfan Landge and the bomb blast that took place on 1st August, 2012.
12. According to the prosecution, the act of the applicant in supplying arms and ammunition would squarely be covered by the term `abet' as defined under Section 2(a) of the MCOC Act and under Section 108 of the IPC. Section 2(a) defines `abet' as under :
"(a) "abet", with its grammatical variations and cognate expressions, includes,-
(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate;
(ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and SQ Pathan 22/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc
(iii) the rendering of any assistance, whether financial or otherwise, to the organised crime Syndicate."
Explanation 2 of Section 108 reads thus :
"Explanation 2.- To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused."
13. Reliance on the aforesaid definitions by the learned Special Public Prosecutor to connect the applicant with the alleged offence, prima facie, appears to be little farfetched at this stage, considering the material on record, as of today. Merely because the applicant had supplied arms and ammunition to Irfan Landge and Imran, for a consideration, to avenge the death of Quatil Siddique which ultimately could not be executed, cannot be said to include an act subsequently committed by the co-accused i.e. of causing bomb blasts to avenge the death of Quatil Siddique. The nexus between the two is doubtful. Prima facie, it appears that the conspiracy to commit bomb blast was subsequent to the supply of the arms and ammunition by the applicant. Prima facie, at this stage, it is doubtful, if the applicant can be attributed with the knowledge of conspiracy to commit bomb blasts and of the commission of bomb blasts. The prosecution as on SQ Pathan 23/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 ::: ba.1719.13.doc today, has not brought on record any material to show that the applicant had knowledge or was aware that bomb blasts were to be planned/caused.
Merely because the applicant harboured Jihadi ideology, had supplied arms/cartridges for avenging the death of Quatil Siddique and had promised to supply bada saman, cannot be a ground to extend the subsequent act of bomb blasts to the applicant, by taking recourse to the aforesaid definitions. Infact, the applicant could have been prosecuted for a separate independent offence.
14. Considering the material on record, as it stands today, prima facie, it is difficult to come to a conclusion that the applicant is guilty of the offences with which he has been charged. The applicant has been in custody since his arrest on 13th January, 2013 i.e. for more than 21/2 years.
As far as antecedents are concerned, it appears tht the applicant has been acquitted in all the 13 cases. Accordingly, the application is allowed on the following terms and conditions :
ORDER
(i) The applicant be released on bail on executing PR Bond in the sum of Rs. 50,000/- with one or two sureties in the like amount;SQ Pathan 24/27 ::: Uploaded on - 06/10/2015 ::: Downloaded on - 06/10/2015 23:59:36 :::
ba.1719.13.doc
(ii) The applicant shall attend the Kalachowky Police Station, A.T.S, once in a month on the first Saturday of every month between 11:00 a.m. to 12:00 noon till the conclusion of the trial;
(iii) The applicant shall not tamper or attempt to contact the complainant, witnesses or any person concerned with the case;
(iv) Theig applicant shall inform his latest place of residence and mobile contact number immediately after being released and/or change of residence or mobile details, if any, from time to time to the Court seized of the matter and to the Investigating Officer of the concerned Police Station;
(v) The applicant to cooperate with the conduct of the trial;
(vi) If there is a breach of any of the aforesaid conditions, the prosecution shall be at liberty to seek cancellation of the applicant's bail.
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15. The aforesaid observations are prima facie, for deciding this application, and the Trial Court shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this order.
16. The Application is allowed in the aforesaid terms and is accordingly disposed of.
17. Parties to act on the authenticated copy of this order.
ig REVATI MOHITE DERE, J.
SQ Pathan 26/27
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CERTIFICATE
Certified to be true and correct copy of the original signed Order.
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