Delhi District Court
State vs Salman Khurshid Kori Etc on 15 December, 2011
Sessions Case No. 236/1/10 FIR No. 96/06 State Vs Salman Khurshid Kori etc Police Station Special Cell Convicted U/s 5 Explosive Substance Act,1908 15.12.2011 Pre: Ld. APP for the state. Convict persons namely 1)Salman Khurshid Kori, 2)Abdur Rehman @ Mohd Hassan; and 3)Mohd. Akbar Hussain @ Mohd Qasim @ Habib from JC. Ld. Counsel Sh. N D Pancholi for accused Salman Khurshid. He submits that ld. Counsel sh. M S Khan for accused Abdur Rehman and Mohd. Akbar, has met with an accident therefore, he is unable to attend the court. Ld. Counsel Sh. N D Pancholi along with proxy counsel Ms. Pooja for accused Abdur Rehman and Mohd. Akbar. Ms. Pooja files memo of appearance. Ld. Counsel Sh. N D Pancholi submits that he along with proxy counsel Ms. Pooja is ready to argue the case on the point of sentence on behalf of accused Abdur Rehman and Mohd. Akbar also. Ld. APP has no objection. Accused/Convict persons have also no objection. Let the arguments on sentence on behalf of all the three accused persons be heard. FIR no.96/06 PS Special Cell 1 / Arguments of ld. APP on sentence heard at length. Vide separate detailed order placed along side in the file, convict persons namely 1)Salman Khurshid Kori, 2)Abdur Rehman @ Mohd Hassan; and 3)Mohd. Akbar Hussain @ Mohd Qasim @ Habib are sentenced to undergo Rigorous imprisonment for 10 years for the offence punishable u/s 5 of the Explosive Substance Act, 1908 and to pay a fine of Rs.5000/ each in default 1 year further R.I. Benefit of section 428 Cr. PC be given to them. Copy of this order and judgment be given to the convict at free of cost forthwith. File be consigned to Record Room. (RAJ KAPOOR) ASJ02/West Distt THC : Delhi FIR no.96/06 PS Special Cell 2 / IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 236/1/10 FIR No. 96/06 State Vs Salman Khurshid Kori etc Police Station Special Cell Convicted U/s 5 Explosive Substance Act,1908 ORDER ON THE POINT OF SENTENCE 15.12.2011 Pre: Ld. APP for the state. Convict persons namely 1)Salman Khurshid Kori, 2)Abdur Rehman @ Mohd Hassan; and 3)Mohd. Akbar Hussain @ Mohd Qasim @ Habib from JC. Ld. Counsel Sh. N D Pancholi for accused Salman Khurshid. He submits that ld. Counsel sh. M S Khan for accused Abdur Rehman and Mohd. Akbar, has met with an accident therefore, he is unable to attend the court. FIR no.96/06 PS Special Cell 3 / Ld. Counsel Sh. N D Pancholi along with proxy counsel Ms. Pooja for accused Abdur Rehman and Mohd. Akbar. Ms. Pooja files memo of appearance. Ld. Counsel Sh. N D Pancholi submits that he along with proxy counsel Ms. Pooja is ready to argue the case on the point of sentence on behalf of accused Abdur Rehman and Mohd. Akbar also. Ld. APP has no objection. Accused/Convict persons have also no objection. Let the arguments on sentence on behalf of all the three accused persons be heard. Arguments of ld. APP on sentence heard at length. Ld. APP submits that such type offences are increasing day by day and dangerous for our country. He again argues and submits that accused persons have already been acquitted for the offences punishable u/s 121/ 121A/ 122 IPC & 18 of the Unlawful Activities (Prevention) Act. They have only been convicted for the offence punishable u/s 5 Explosive Substance Act,1908. Ld. APP again submits that offence FIR no.96/06 PS Special Cell 4 / under section 5 of Explosive Act is punishable with imprisonment for a term which may extend to ten years, and shall also be liable to fine. Ld. APP again submits that 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. On these grounds ld. APP submits that maximum punishment be awarded to the convict persons. Contrary to it, ld. Counsel for convict submits that all the three accused persons namely 1.Mohd. Akbar, 2.Salman Khurshid and 3.Abdur Rehman are very poor persons and at the time of committing the offence they were aged about 19, 20 and 22 years respectively. They have no previous criminal antecedents. All the three accused persons belong to Manipur State. He further submits that conduct of the convict persons remained good during the course of trial. Ld. Counsel also submits that approximately accused / convict persons are in JC for about 5 years. On these grounds ld. Counsel prays for releasing the convict persons for the period as already undergone by them during the course of trial. I have heard the submissions of convict persons and ld. APP as well. Keeping in view of the facts and circumstances of the case and FIR no.96/06 PS Special Cell 5 / the fact that the explosive substances recovered from the accused persons were of serious devastating nature. Therefore, I do not find it a fit case to release the convict persons for the period as already undergone by them during the course of trial. Further, to my view ends of justice will be met if all the three accused persons are sentenced to undergo Rigorous imprisonment for 10 years for the offence u/s 5 of the Explosive Substance Act, 1908 and to pay a fine of Rs.5000/ each in default 1 year further R.I. Accordingly, convict persons namely 1)Salman Khurshid Kori, 2)Abdur Rehman @ Mohd Hassan; and 3)Mohd. Akbar Hussain @ Mohd Qasim @ Habib are sentenced to undergo Rigorous imprisonment for 10 years for the offence punishable u/s 5 of the Explosive Substance Act, 1908 and to pay a fine of Rs.5000/ each in default 1 year further R.I. Benefit of section 428 Cr. PC be given to them. Copy of this order and judgment be given to the convict at free of cost forthwith. Orders accordingly. ANNOUNCED IN THE OPEN COURT ON THIS 15.12.2011 (RAJ KAPOOR) ASJ02/West Distt THC : Delhi FIR no.96/06 PS Special Cell 6 / IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 236/1/10 Assigned to Sessions. 12/04/07 Arguments heard on 08/11/11 Date of order. 13.12.2011 FIR No. 96/06 State Vs 1. Salman Khurshid Kori s/o Mohd. Salauddin Kori, R/o Minuthonghatta, Imphal, East Manipur. 2. Abdur Rehman @ Mohd. Hasan s/o Abdul Karim r/o Village Laoramg, Distt. Imphal East Manipur. 3. Mohd. Akbar Hussain @ Mohd. Qasim @ Habib s/o Mohd. Qasim @ Abdul Karim, R/o Village Yairipok Cangandabi, PS Yairipok, Distt. East Imphal, Manipur. Police Station Special Cell Under Section 121/ 121A/ 122 IPC & 5 Explosive Substance Act & 18 Unlawful Activities Act. Convicted U/s 5 Explosive Substance Act JUDGEMENT
This judgment shall dispose of the case pertaining to FIR No.96/06, PS FIR no.96/06 PS Special Cell 7 / Special Cell, titled as 'State Vs Salman Khurshid & Ors.', for the offences punishable u/s 121/ 121A/ 122 IPC & 5 Explosive Substance Act & 18 Unlawful Activities Act.
1. Briefly facts of the case are that in the month of October, 2006, 2 LeT operatives namely Mohd. Alamgir Hussain and Abdur Razzaq Jiwon were arrested by Special Cell staff during the festival season and recovery of explosive was effected from their possession. (Now, both persons have been convicted on 12.05.2010). One team of Special Team was continuously working to find out by whom explosives was delivered to the aforesaid persons. Accordingly, secret sources were deployed.
2. The case of the prosecution is that on the intervening night of 1819.12.2006 an information regarding three operatives of LeT was received by PW12 Insp. S K Giri, who was posted in Special Cell, NDR. Informer told that three persons would come by bus from J&K FIR no.96/06 PS Special Cell 8 / and they would reach around 7 a.m. on the bus stand opposite Azad Hind Market, Red Fort and they would be have consignment of explosive to execute their plan in Delhi. It was also confirmed that these were the operatives who escaped during the arrest of Razzak Roni LeT operatives arrested earlier. This information was reduced in writing and Sr. officers were informed who directed to act according to law. At about 5 a.m. PW12 Insp. S K Giri along with Insp. Manoj Dixit, SI Rajiv Kakkar, SI Sanjiv, SI Neeraj, SI Virender Tyagi, SI Youdhvir, SI Sushil, SI Uma Shankar, ASI Devinder, ASI Intzar Hussain, ASI Ashok Tyagi, HC Harish, HC Satish, HC Devinder, HC Jaiveer, HC Ramesh Lakra, Ct. Lachhi, Jaiveer, Ct. Puran, Ct. anil Chaddha, Ct. Anil Dhaka and other police officials departed in one Rakshak no.DL1CJ - 3067, four private vehicles and three and three two wheelers private. Bulletproof Jackets, arms and ammunition were taken according to register. They reached at the spot at about 5.30 a.m. Informer met them on the road and led to Bagichi Madav Dass. There 1012 persons were asked to join the raiding party by FIR no.96/06 PS Special Cell 9 / PW12 and Insp. Manoj Dixit but none agreed and left the spot expressing their excuses and without disclosing their names and addresses.
3. Thereafter, without wasting the time the staff was deployed around the spot. At about 7.25 a.m. accused persons were seen at the spot near bus stand. Thereafter, at the instance of informer accused persons were apprehended.
4. Accused Salman was apprehended by Insp. Manoj and SI Virender. Accused Abdul Rehman was apprehended by SI Neeral and SI Yudhveer. Accused Akbar was apprehended by PW12 and SI Rajiv Kakkar.
5. Thereafter, search of Salman was conducted by Insp. Manoj Dixit and SI Virender. Accused Slman was having a bag on which speed was written. the bag was checked and it was found containing the 10 FIR no.96/06 PS Special Cell 10 / sticks of plastics explosive and on weighing it was found 1 kg.
6. A bag on which NIKE was written was recovered from accused Abdul Rehman by SI Neeraj and Yudhveer. On checking bag, 10 sticks of plastic explosive were recovered. On weighing it was also found 1 kg.
7. From accused Akbar a bag was also recovered by PW12 and SI Rajiv Kakkar, on which POLO USA was written. It was checked and 2 detonators along with hand grenades were recovered.
8. All the three bags of accused persons were also having clothrs. These articles/ explosives were converted into sealed pulandas separately. FSL Form was filled up. PW12 prepared the rukka and sent SI Rajiv at PS for getting the case registered.
9. In the meanwhile, ACP Sanjeev Yadav, reached at the spot at FIR no.96/06 PS Special Cell 11 / around 9.15 a.m. as PW12 had informed him about the apprehension of accused persons. PW12 Insp. S.K. Giri produced all the aforesaid three accused persons, copy of tehrir, original seizure memo, CFSL form and the four sealed parcels and three bags to him. PW12 Insp. S.K. Giri briefed him regarding facts of the case. Thereafter, he prepared site plan vide Ex. PW4/DA at the instance of Insp. S.K. Giri. He verbally interrogated all the aforesaid three accused persons and arrested them. Thereafter, he prepared arrest memo of accused Salman, Abdul Rehman and Akbar Hussain and also prepared their personal search memo vide Ex, PW2/H, J, J, I, K and M, which bears his signature at point C.
10.IO took one black colour bag on which word NIKE was written by green coloured, in which some used clothes and other articles were lying, into possession through seizure memo vide Ex. PW2/F which bears his signatures at point C. This bag was in the hand of accused Abdul Rehman @ Mohd. Hassain. The bag is Ex. P4 (collectively). FIR no.96/06 PS Special Cell 12 /
11.IO took one blue and red colour bag on which word SPEED was written, in which some used clothes and other articles were lying, into possession through seizure memo vide Ex. PW2/E which bears his signatures at point C. This bag was in the hand of accused Salman Khurshid Koari. The bag is Ex. P5 ( collectively).
12.IO also took one black colour bag on which word on a broken metal logo POLO USA was written, in which some used clothes and other articles were lying, into possession through seizure memo vide Ex. PW2/G which bears his signatures at point C. This bag was in the hand of accused Mohd. Akbar Hussain @ Mohd. Kasim @ Habib. The bag is already Ex. P6 ( collectively).
13.In the personal search memo of accused Salman Khurshid one dark purse containing Rs. 2250/, three tickets of Kashimir Express, One pocket diary and one Icard of City Institute of Infotach in the name of FIR no.96/06 PS Special Cell 13 / S.K. Koari were recovered.
14.In the personal search memo of accused Abdul Rehman one rexine purse containing Rs.1800/, one medical prescription paper of Arya Hospital of Guwahati and one Icard of Mohd. Hassan were recovered. One small note book and one wrist watch of Ajanta was also recovered in the personal search memo of this accused.
15.In the personal search memo of accused Mohd. Akbar Hussain one rexine black purse containing Rs. 950/, and some cards and one I card in the name of Mohd. Habib, were also recovered.
16.At about 1/1.15 p.m. SI Rajiv Kakar came at the spot and he gave original Tehrir and copy of FIR to ACP as the investigation was assigned to him. He mentioned the FIR particulars on all the documents which were produced before him by Insp. S.K. Giri and the documents which were prepared by him.
FIR no.96/06 PS Special Cell 14 /
17.Thereafter, all the police officials along with accused persons and the case property came at Special Cell police station and deposited four sealed parcel and three bags, along with CFSL form etc. with the MHC(M). IO/ACP interrogated accused namely Akbar Hussain, Salman Khushid and Abdul Rehman, in detail at office and recorded their disclosure statements vide Ex. PW4/C, PW4/A and PW4/B which bears his signatures at point C.
18.IO /ACP also recorded statement of witnesses namely Insp.S.K. Giri, Insp. Manoj Dixit, SI Virender Tyagi, SI Neeraj Kumar, SI Rajiv Kakar, SI Yudhvir, SI Sanjeev Kumar, ASI Paramjeet, u/s 161 Cr.P.C , accused persons were produced before the concerned court and from there they all were taken on 14 days PC remand.
19.On 20.12.2006 teams were sent to J&K and they came back on 25.12.2006. On 27.12.2006 teams were sent to Devband and they FIR no.96/06 PS Special Cell 15 / came back on the same day. On 28.12.2006 teams were sent to Aligarh and they came back to on 29.12.2006. On 2.1.2007 all the three accused persons were produced before the concerned court and from there they were sent to J/C.
20.On 01.02.2007, SI Sanjeev Kumar was directed to get hand grenade and detonator destroyed at NSG Samalkha and before this the order for destruction was already obtained from the Hon'ble Court. On the same day evening after getting the grenade dismantled and detonator destroyed, SI produced the destruction certificate before IO. The process of dismental and destruction was carried in the presence of two witnesses namely Rahul Kanojia and Azad. IO recorded statement of SI Sanjeev and both the above named public persons.
21.On 2.2.2007 three sealed parcel along with FSL form were sent to CFSL, CGO complex through SI Yudhbir vide R/C No. 17/21/07 and FIR no.96/06 PS Special Cell 16 / he produced the receipt of the same to the MHC(M). IO recorded his statement to this effect and later on FSL result was collected and sanction u/s 196 Cr.P.C, sanction u/s 45 Unlawful Activity (Prevention) Act and sanction u/s 7 Explosive Act were obtained and same were placed on file. IO recorded statement of witnesses and after completion of investigation, challan was prepared and filed to the court.
22.This case was committed to this Court and received on 12.04.2007 for trial as it pertains to the heinous crime committed under sections 121/ 121A/ 122/ 123/ 120B IPC & 4/5 Explosive Substance Act & 18/20/23 Unlawful Activities Act which is exclusively triable by court of Sessions. Ld. predecessor of this court framed a charge for the offences u/s 121A/ 121/ 122 IPC ; u/s 18 of Unlawful Activities (Prevention) Act; and u/s 5 of Explosive Substance Act against all the accused persons on 21.11.2007 to which accused persons did not plead guilty and claimed trial.
FIR no.96/06 PS Special Cell 17 /
23.To prove and substantiate its case, the prosecution has examined witnesses namely PW1 K. R. Mehndiratta, Asstt., the then Deputy Secretary (Home); PW2 SI Virender Tyagi, Special Cell ; PW3 SI Neeraj Kumar ; PW4 SI Sanjeev Kumar ; (PW2 - PW4 - raiding party members) ; PW5 SI Krishan Chander - duty officer at PS Special Cell on 19.12.2006; PW6 ASI Paramjeet Singh MHC (M) at Malkhana, Special Cell, PS Lodhi Colony, Delhi; PW7 SI Yudhvir Singh - another raiding party member; PW8 Lt. Col. R S Tahor - member of Bomb Disposal Unit, National Security Guard, New Delhi; PW9 N B Bardhan, Principal Scientific Officer (Ballistics); PW10 Ms. Naini Jayaseelan, Advisor Planning Commission; PW11 SI Rajeev Kakkar - another member of raiding party; PW12 Insp. S K Giri, PW13 Mr. Rahul Kanojia - public witness in respect of defusing the explosives which were recovered in the present case; PW14 Insp. Manoj Dixit - another member of raiding party; and PW15 ACP FIR no.96/06 PS Special Cell 18 / Sanjeev Kumar Yadav, IO.
FORMAL WITNESSES:
24.In the case in hand PW1 K. R. Mehndiratta, Asstt., the then Deputy Secretary (Home); PW5 SI Krishan Chander - duty officer at PS Special Cell on 19.12.2006; PW6 ASI Paramjeet Singh MHC (M) at Malkhana, Special Cell, PS Lodhi Colony, Delhi; PW8 Lt. Col. R S Tahor - member of Bomb Disposal Unit, National Security Guard, New Delhi; PW9 N B Bardhan, Principal Scientific Officer (Ballistics);
PW10 Ms. Naini Jayaseelan, Advisor Planning Commission; PW13 Mr. Rahul Kanojia - public witness in respect of defusing the explosives which were recovered in the present case are the formal witnesses.
25.The prosecution examined PW1 K.R. Mehndiratta, the then Dy. Secy. (Home) who proved the sanction order dt. 16.03.2007 which is Ex.PW1/A. FIR no.96/06 PS Special Cell 19 /
26.PW5 SI Krishan Chander is also a formal witness in this case. He came to the witness box and deposed that on 19.12.2006 he was posted at Special Cell as duty officer from 8 a.m. to 4 p.m. On that day during his duty at about 10:30 a.m. rukka recorded by Ins. S K Giri vide Ex.PW2/D was presented before him through SI Rajiv Kakkar for registration of FIR. On the basis of the rukka he recorded the FIR of the present case. This witness got exhibited the carbon copy of FIR as Ex.PW5/A. He affirmed the fact that investigation of the case was assigned to ACP Sanjeev Kumar Yadav. This witness further deposed that he also recorded DD no.4A and 5A in respect of registration of FIR.
27.PW6 ASI Paramjeet Singh is also a formal witness being MHCM. He came to the witness box and deposed that on 19.12.2006 he was on duty as I/C Malkahana. This witness affirmed the fact of depositing the case property by ACP Sanjeev Yadav in the Malkhana FIR no.96/06 PS Special Cell 20 / i.e. plastic Jar marked S1 to S4 sealed with the seal of SK. 3 bags in unsealed condition, containing articles mentioned in seizure memo along with carbon copy of 7 seizure memos CFSL form. Besides personal search articles of all three accused persons with copy of personal search memo. This witness took the custody of of aforesaid articles and kept the same in Malkhana after making entry at serial no.947 in register no.19. He got exhibited the copy of the same as Ex.PW6/A. This witness further got exhibited the relevant entries made in respect of sending sealed parcels to B.D.S. Unit for defusing the sealed parcels bearing no.S3 and S4 through SI Sanjeev Kumar vide RC no. 16/21/07 such as endorsement as Ex.PW6/E, copy of Road certificate as Ex.PW6/F, Copy of the Destruction Certificate received from BDS Unit as Ex.PW6/G. This witness further deposed that on 02.02.07 two sealed parcels FIR no.96/06 PS Special Cell 21 / marked S1 and S2 , one sealed parcel duly sealed with the seal of BDS Unit and marked as S3 were sent to CFSL, Lodhi Road for analysis through HI Yudhvir Singh vide RC no.1721. This witness got exhibited the endorsement as Ex.PW6/H, copy of road certificate as Ex.PW6/I and copy of depositing receipt as Ex.PW6/J. He further deposed that on 26.02.2007 HC Devender Kumar brought three sealed envelops containing expert opinions and handed over to him. He made endorsement to this effect vide Ex.PW6/K. This witness also deposed that on 03.03.2008, amount Rs.1800/ were returned to coaccused Abdul Rehman as per court order dated 03.03.08.
28.PW8 Ld. Col. R S Rathor, came to the witness box and deposed that on 01.02.2007 he was posted as Sqn. Comn. Bomb Disposal unit, National Security Guard, New Delhi. He deposed that on the application of the IO ACP Sanjeev Kumar Yadav to the court and in FIR no.96/06 PS Special Cell 22 / pursuance order dated 19.12.2006 of the Court of ld. CMM , Delhi one hand grenade was defused and two detonators were also destroyed. In this regard he got exhibited destruction certificate as Ex.PW8/A.
29.PW10 Naini Jayaseelan, Adviser Planning Commission proved the sanction to prosecute the accused persons under Explosive Substance Act vide Ex.PW10/A.
30.PW13 Mr. Rahul Kanojia, public witness in respect of defusing the explosives which were recovered in the present case. This witness came to the witness box and deposed that on 01.02.2007 he was present at Meharchand Market when SI Sanjiv Pawha had come to him and told that he is from Special Cell. He requested him to join the investigation of the present case. He joined the investigation for the purpose of defusing the explosives which were recovered in the present case. He was taken towards Dwarka side near Airport to FIR no.96/06 PS Special Cell 23 / NSG. One more witness whose name he did not remember was also associated. This witness further deposed that SI Sanjiv Pawha had two sealed containers one containing detonators of aluminium and the second containing hand grenade. Both the hand grenade and the detonators were defused in the NSG in his presence. He had also signed on destruction certificate which is already exhibited as Ex.PW8/A. This witness corrected himself that NSG is located in Smalkhan where the hand grenade and the detonators were defused. He also corrected that they were two detonators which were defused and not one detonator.
All these witnesses have been crossexamined at length. I have perused the same. No material contradiction has come on record which may go to the root of this case. However, some minor type of contradictions have come on record which are attributable due to the long duration of time and memory of a human being. MATERIAL WITNESSES FIR no.96/06 PS Special Cell 24 /
31.PW2 SI Virender Tyagi, Special Cell; PW3 SI Neeraj Kumar; PW4 SI Sanjeev Kumar; PW7 SI Yudhvir Singh; PW11 SI Rajeev Kakkar; PW12 Insp. S K Giri; PW14 Insp. Manoj Dixit and PW15 ACP Sanjeev Kumar Yadav, IO. are the most material witnesses in this case being members of raiding party and witnesses to the recoveries effected from the accused persons. All these witnesses have deposed more or less on similar lines being the members of the raiding party. They have deposed that on the intervening night of 1819.12.2006 an information regarding three operatives of LeT was received by PW12 Insp. S K Giri, who was posted in Special Cell, NDR. Informer told that three persons would come by bus from J & K and they would reach at around 7 a.m. on the bus stand opposite Azad Hind Market, Red Fort and they would be have consignment of explosive to execute their plan in Delhi. It was also confirmed that these were the operatives who escaped during the arrest of Razzak Roni LeT operatives arrested earlier. This information was reduced in writing and Sr. officers were informed who directed to act according FIR no.96/06 PS Special Cell 25 / to law. At about 5 a.m. PW12 Insp. S K Giri along with PW14 Insp. Manoj Dixit, PW11 SI Rajiv Kakkar, PW4 SI Sanjiv, PW3 SI Neeraj, PW2 SI Virender Tyagi, PW7 SI Youdhvir along with other police staff namely SI Sushil, SI Uma Shankar, ASI Devinder, ASI Intzar Hussain, ASI Ashok Tyagi, HC Harish, HC Satish, HC Devinder, HC Jaiveer, HC Ramesh Lakra, Ct. Lachhi, Jaiveer, Ct. Puran, Ct. Anil Chaddha, Ct. Anil Dhaka and other police officials departed in one Rakshak no.DL1CJ - 3067, four private vehicles and three twowheelers (private). Bulletproof Jackets, arms and ammunition were taken according to register. They reached at the spot at about 5.30 a.m. Informer met them on the road and led to Bagichi Madav Dass. There 1012 persons were asked to join the raiding party by PW12 and PW14 Insp. Manoj Dixit but none agreed and left the spot expressing their excuses and without disclosing their names and addresses. Further, perusal of their testimony it has come on record that police staff was deployed around the spot. At about 7.25 a.m. accused persons were seen at the spot near bus stand. Thereafter, FIR no.96/06 PS Special Cell 26 / at the instance of informer accused persons were apprehended. Accused Salman was apprehended by Insp. Manoj and SI Virender. Accused Abdul Rehman was apprehended by SI Neeral and SI Yudhveer. Accused Akbar was apprehended by PW12 and SI Rajiv Kakkar. Thereafter, search of Salman was conducted by Insp. Manoj Dixit and SI Virender. Accused Slman was having a bag on which speed was written. The bag was checked and it was found containing the 10 sticks of plastics explosive and on weighing it was found 1 kg. A bag on which NIKE was written was recovered from accused Abdul Rehman by SI Neeraj and Yudhveer. On checking bag, 10 sticks of plastic explosive were recovered. On weighing it was also found 1 kg. From accused Akbar a bag was also recovered by PW12 and SI Rajiv Kakkar, on which POLO USA was written. It was checked and 2 detonators along with hand grenades were recovered. All the three bags of accused persons were also having clothes. These articles/ explosives were converted into sealed pulandas separately. FSL Form was filled up. PW12 prepared the FIR no.96/06 PS Special Cell 27 / rukka and sent SI Rajiv at PS for getting the case registered. In the meanwhile, ACP Sanjeev Yadav, reached at the spot at around 9.15 a.m. as PW12 had informed him about the apprehension of accused persons. PW12 Insp. S.K. Giri produced all the aforesaid three accused persons, copy of tehrir, original seizure memo, CFSL form and the four sealed parcels and three bags to him. PW12 Insp. S.K. Giri briefed him regarding facts of the case. Thereafter, he prepared site plan vide Ex. PW4/DA at the instance of Insp. S.K. Giri. He verbally interrogated all the aforesaid three accused persons and arrested them. Thereafter, he prepared arrest memo of accused Salman, Abdul Rehman and Akbar Hussain and also prepared their personal search memo vide Ex, PW2/H, J, J, I, K and M, which bears his signature at point C. IO took one black colour bag on which word NIKE was written by green coloured, in which some used clothes and other articles were lying, into possession through seizure memo vide Ex. PW2/F which bears his signatures at point C. This bag was in the hand of accused Abdul Rehman @ Mohd. Hassain. The bag is FIR no.96/06 PS Special Cell 28 / Ex. P4 (collectively). IO also took one blue and red colour bag on which word SPEED was written, in which some used clothes and other articles were lying, into possession through seizure memo vide Ex. PW2/E which bears his signatures at point C. This bag was in the hand of accused Salman Khurshid Koari. The bag is Ex. P5 ( collectively). IO also took one black colour bag on which word on a broken metal logo POLO USA was written, in which some used clothes and other articles were lying, into possession through seizure memo vide Ex. PW2/G which bears his signatures at point C. This bag was in the hand of accused Mohd. Akbar Hussain @ Mohd. Kasim @ Habib. The bag is already Ex. P6 ( collectively). In their testimonies it has also come on record that in the personal search memo of accused Salman Khurshid one dark purse containing Rs. 2250/, three tickets of Kashimir Express, One pocket diary and one Icard of City Institute of Infotach in the name of S.K. Koari were recovered. In the personal search memo of accused Abdul Rehman FIR no.96/06 PS Special Cell 29 / one rexine purse containing Rs.1800/, one medical prescription paper of Arya Hospital of Guwahati and one Icard of Mohd. Hassan were recovered. One small note book and one wrist watch of Ajanta was also recovered in the personal search memo of this accused. In the personal search memo of accused Mohd. Akbar Hussain one rexine black purse containing Rs. 950/, and some cards and one I card in the name of Mohd. Habib, were also recovered. At about 1/1.15 p.m. SI Rajiv Kakkar came at the spot and he gave original Tehrir and copy of FIR to ACP as the investigation was assigned to him. He mentioned the FIR particulars on all the documents which were produced before him by Insp. S.K. Giri and the documents which were prepared by him.
Thereafter, all the police officials along with accused persons and the case property came at Special Cell police station and deposited four sealed parcel and three bags, along with CFSL form etc. with the FIR no.96/06 PS Special Cell 30 / MHC(M). IO/ACP interrogated accused namely Akbar Hussain, Salman Khushid and Abdul Rehman, in detail at office and recorded their disclosure statements vide Ex. PW4/C, PW4/A and PW4/B which bears his signatures at point C. IO /ACP also recorded statement of witnesses namely Insp. S.K. Giri, Insp. Manoj Dixit, SI Virender Tyagi, SI Neeraj Kumar, SI Rajiv Kakar, SI Yudhvir, SI Sanjeev Kumar, ASI Paramjeet, u/s 161 Cr.P.C , accused persons were produced before the concerned court and from there they all were taken on 14 days PC remand. It has also come on record in the testimony of material witnesses that on 20.12.2006 teams were sent to J&K and they came back on 25.12.2006. On 27.12.2006 teams were sent to Devband and they were came back on the same day. On 28.12.2006 teams were sent to Aligarh and they came back on 29.12.2006. On 2.1.2007 all the three accused persons were produced before the concerned court and from there they were sent to J/C. On 01.02.2007, SI Sanjeev Kumar was directed to get hand grenade and detonator destroyed at NSG Samalkha and before this FIR no.96/06 PS Special Cell 31 / the order for destruction was already obtained from the Hon'ble Court. On the same day evening after getting the grenade dismantled and detonator destroyed, SI produced the destruction certificate before IO. The process of dismental and destruction was carried in the presence of two witnesses namely Rahul Kanojia and Azad. IO recorded statement of SI Sanjeev and both the above named public persons. On 2.2.2007 three sealed parcel along with FSL form were sent to CFSL, CGO complex through SI Yudhbir vide R/C No. 17/21/07 and he produced the receipt of the same to the MHC(M). IO recorded his statement to this effect and later on FSL result was collected and sanction u/s 196 Cr.P.C, sanction u/s 45 Unlawful Activity (Prevention) Act and sanction u/s 7 Explosive Act were obtained and same were placed on file.
32.All these witnesses have been crossexamined at length . I have perused the same. In the crossexamination of these witnesses I found some contradictions and variations. In their crossexamination FIR no.96/06 PS Special Cell 32 / it has come on record that no verification from the conductor of the bus about the traveling of the accused persons were made. All the shops near the spot were lying closed however, the police post near the spot was opened. After about 15 minutes of apprehension of accused a large crowd gathered at the spot including media persons. The recovery from the accused persons was effected before the gathering of public at the spot. There were passersby when they reached at the spot. Each and every member of the team was visible to each other and were having eye to eye contact. Team members were deployed near the Azad Hind Market, where the bus from J&K usually arrives. It has been denied that deposit of sealed parcel, bags, CFSL form etc. were manipulated. It is also denied that all the statement of the witnesses were fabricated. The intimation about the registration of FIR and its number was made at around 1.15 pm. In the crossexamination of witnesses it has also come on record that it cannot be said if the FIR No. appearing on the top of Ex. PW2/A, B and C is in the same handwriting or ink. It has FIR no.96/06 PS Special Cell 33 / also come in the crossexamination of these witnesses that during the investigation of case FIR No. 75/06 the names of the accused persons of this case were not revealed nor any description of any nature nor their any contact details was revealed. It has been admitted by PW15 that in the disclosure statement of accused persons it is no where mentioned that as to when and where the said material was handed over him. It is also admitted fact that it is no where mentioned in chargesheet that on any occasion the police team was sent out of station for the purpose of investigation of this case. It is also admitted that PW15 had not placed on record any DD entry in this respect. However, volt. he stated that these DDs are very much available in the office of Special Cell. It has been denied that no recovery was effected from the accused persons and accused Abdul Rehman was picked up from Imphal on 5.5.2006 when he was going to Guwahati from bus stand and accused Mohd. Akbar was picked up from his house from Imphal on 20.9.2006. FIR no.96/06 PS Special Cell 34 / Having perused the the testimonies of the said witnesses and their crossexamination I found some contradictions which are attributable due to the long duration of time and memory of a human being. These contradictions do not go to the root of the case.
33.After recording the statement of prosecution witnesses, statement of accused persons were recorded u/s 313 Cr.PC. They denied all the allegations. However, they did not lead any defence evidence. They pleaded that they are innocent and they have been falsely implicated in the case.
34.Final arguments were heard. During the course of arguments Ld. Addl. Public Prosecutor argued and submitted that the prosecution examined all the material witnesses to prove the charges against the accused persons factually and technically and they have completed the chain of evidence in all respect. The testimony of all the prosecution witnesses are trustworthy, believable and corroborative. FIR no.96/06 PS Special Cell 35 / Nonciting of the public witnesses is not fatal for the prosecution case since overwhelming testimony of the prosecution witnesses inspire confidence. The sanction authority proved the sanction after duly applying their mind. There is no material defects in the investigation as brought on record. The investigation has been carried on in the fair and truthful manner. Under these circumstances, the accused persons are liable to be convicted in accordance with the charges framed against them.
35.Per contra, Ld. Counsel for the accused persons submitted that the testimony of all the prosecution witnesses are contradictory, inconsistent and are not credible. No public witness was joined at the time of apprehension of the accused persons nor at the time of recovery of articles from their possession while it has come in the crossexamination that public persons were present there. It is further contended by the counsel for the accused persons that accused persons have any connection with the militant activities. FIR no.96/06 PS Special Cell 36 / Accused Akbar pleaded that he was apprehended on 20.9.2006 from his house and later on the police has implicated him falsely and wrongly in this case by concocting a fabricated false story and as such there was no question of any secret information. He has no concerned whatsoever with any terrorist organization. He is peace loving and lawful citizen of India. Accused Abdul Rehman pleaded that he was apprehended on 5.5.2006 from Imphal from bus stand when he was going to Guwahati and later on the police has implicated him falsely and wrongly in this case by concocting a fabricated false story and as such there was no question of any secret information. Accused Salman Khurshid pleaded that he was apprehended on 6.10.2006 and later on the police has implicated him falsely and wrongly in this case by concocting a fabricated false story and as such there was no question of any secret information.
36.Ld. counsel for accused Abdul Rehman and Mohd. Akbar argued and submitted that all the police officials have admitted during FIR no.96/06 PS Special Cell 37 / investigation that names / description of the accused persons were not revealed. It is also admitted that case of the prosecution that the identification of accused persons were not revealed earlier and also that there was no description available with them. He further argued and submitted that prosecution has failed to connect the accused with the case FIR no.75/06 and even in that case Prosecution had failed to prove its case for the offences u/s 121, 121A, 122 IPC and Section 18/ 20/ 23 U.A. (P) Act, 1967. It is also argued and submitted by the ld. counsel for accused persons that DD entry no.24 does not contain a single word regarding the description of the accused persons. Ld. counsel again argued and submitted that as to how a person (secret informer) while in Delhi acquired knowledge about the travel of the accused persons after more than 5 hours of their boarding the bus. Again it is argued that it is an admitted case of prosecution that none of the witnesses had seen accused persons alighting from the bus. There is no admissible evidence to prove the travel of accused persons from Jammu to Delhi and similarly there is no admissible FIR no.96/06 PS Special Cell 38 / material / evidence to prove that accused persons at any point of time visited or stayed in Jammu and Kashmir. The police team had ample time to record the statement of the Conductor of the bus, note the number of bus, had accused travelled as alleged but since it was all concoction, hence there is complete silence on the part of the prosecution. Again it is argued that entire police investigation is also silent whether the accused persons were taken to Jammu & Kashmir to arrest their associates or to get the places where they stayed identified.
37.On the point of recovery, ld. counsel for accused persons argued and submitted that there is no evidence of any nature against the accused persons to show their connectivity with the accused of case FIR no. 75/06. There is also no evidence to show if accused has travelled from Jammu by bus on the alleged date and alighted at Red Fort at the alleged time. There is further no evidence to prove that accused at any point of time stayed or visited Jammu & Kashmir. The FIR no.96/06 PS Special Cell 39 / identification of the accused persons by the secret informer is also not free from doubt so the story of the prosecution regarding recovery of alleged explosive from them is also false. Ld. counsel again submitted that the seizure memos were written in the office of Special Cell and that too after registration of FIR otherwise, the same would have been in the writing of ACP Sanjeev Kumar Yadav as the same were handed over to him before registration of FIR but the same was in the same hand writing and ink in which contents are written and so admitted by PW11 Rajiv Kakkar in his crossexamination. In this regard ld. counsel has relied upon the citation 'Zohra Vs State 2000 (1) JCC [Delhi].
38.On the point of contradictions ld. counsel submitted that there is also contradiction in the timings of search, sealing and recovery. As per PW12 the recovery was affected within 15 minutes after the apprehension but PW4 contradicts PW12 in his cross. As per Pw12 bags were searched one by one and it took around 20 minutes in FIR no.96/06 PS Special Cell 40 / search and seizure of each bag but PW7 contradicts this story.
39.On the point of connectivity with LeT, plans and conspiracy ld. counsel for accused persons submitted that it is admitted case of the prosecution that it was not revealed during the investigation as well as during the interrogation of the accused as to where the accused persons were to go and stay in Delhi nor any contact number nor the description of their contact was revealed. It is also an admitted case of prosecution that there is nothing in the entire evidence as to which place was to be targeted, when to be targeted by whom and how. There is also no evidence of any nature to show the connectivity of the accused persons with any one in Jammu & Kashmir or abroad and nothing was found from the accused or revealed during investigation. There is also no evidence to prove if accused persons were members of any Terrorist outfit. There is also no evidence to prove the existence of conspiracy. the entire case is based on the disclosure statements which are not admissible in evidence and the testimonies of the police officials who are interested witnesses. There FIR no.96/06 PS Special Cell 41 / is no material in any form to prove the existence of any conspiracy or plan for waging war against the Govt. of India. On these grounds ld. counsel for the accused persons argued and submitted that entire case has been cooked up and accused persons have been falsely implicated in the present case. Ld. counsel has also relied upon the judgment 'Navjot Sandu's case [Parliament Attack case) AIR 2005 SC 3820'. He again argued and submitted that as per PW12 Insp. S K Giri in his crossexamination dated 28.3.2011 states that after about 15 minutes of apprehension of the accused persons a large crowd gathered at the spot including Media persons, if this version is accepted as correct then there should not have been any problem for the police to join any public witness or to cite media person as a witness but since the entire case is concoction, hence there is no public witness. Ld. counsel further argued and submitted that it is a settled proposition that prosecution is duty bound to prove its case against the accused beyond reasonable doubt and if any doubt arises benefit of it must go to the accused. It is also cardinal principle of FIR no.96/06 PS Special Cell 42 / criminal jurisprudence that the graver the offence more is the responsibility upon the prosecution to prove the same beyond reasonable doubt. It is further submitted that even if the record leaves the mind of the court in equilibrium, the decision must be against the party having the onus to prove the same. On these grounds ld. counsel for accused persons submitted that accused persons be acquitted by giving them benefit of doubt.
40.Ld. counsel Sh. N D Pancholi also argued and submitted that in the present case Red Fort crossing is an important public place having mini interstate busstop, military establishments, police booth, markets on both sides, temples around but the raiding party did not involve any of the persons from such places. The claim of the police is that accused were coming with explosive material to execute, in that case it was incumbent on the police to inform the bomb disposal squad and take them on the spot. But no such effort was done and it makes police version doubtful. The site map also does not give full FIR no.96/06 PS Special Cell 43 / description as it does not mention Azad Hind Market at all. It shows that recovery proceedings were fabricated. In support of his contention he has relied upon the following citations:
i) Pulin Das @ Panna Koch Vs State of Assam -
(2008) 2 Supreme Court Cases (Cri) 520, in this case it has been observed that "In State through Superintendent of Police, CBI/SIT vs. Nalini and Others, (1999) 5 SCC 253, threeJudge Bench of this Court held thus: 544. "Under Section 3 of TADA in order there is a terrorist act three essential conditions must be present and these are contained in subsection (1) of Section 3 (1) criminal activity must be committed with the requisite intention or motive, (2) weapons must have been used, and (3) consequence must have ensued. In the light of the language used and interpreted by this Court in various decisions, it is clear from Section 3(1) that whoever with intent (i) to overawe the Government as by law established; or (ii) to strike terror in the people or any section of the people; or (iii) to alienate any section of the people; or (iv) to adversely affect the harmony amongst different sections of the people, does any act or things by using (a) bombs or dynamite, or (b) other explosive substances, or (c) inflammable substances, or (d) firearms, or (e) other lethal weapons, or (f) poisons or noxious gases or other chemicals, or (g) any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause or as is likely to cause (i) death, or (ii) injuries to any person or persons, (iii) loss of or damage to or destruction of property, or (iv) disruption of any supplies or services essential to the life of the community, or (v) detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a 'terrorist act' punishable under the said Section." FIR no.96/06 PS Special Cell 44 /
ii) State of Rajasthan Vs Ajit Singh & Ors - 2008 Cri. L J 364, in this case it has been observed that: "18. The learned counsel for the State has however submitted that in the light of the presumptions drawn under section 21 of the Act it had to be found that the arms and ammunition were to be used in terrorist activity and a heavy onus lay on the accused. We find this provision would be applicable only if it is "proved" that the arms and ammunition had been recovered from the accused and had been used in the manner laid down in section 3. We have on the contrary found that there is no evidence to show a recovery of weapons or that any of the accused (other than Ajit Singh) had any knowledge as to the ultimate destination and end use of the weapons that had been brought in. The presumption therefore under section 21(2) cannot therefore be raised in the present case. In the light of what has been held, we are of the opinion that the other arguments raised by the learned counsel for the parties with regard to the recoveries etc. pale into insignificance and do not require any discussion. We accordingly dismiss the appeal."
iii)Vijay Kumar @ Bhushan Vs State - 2007 [1] JCC 16, in this case it has also been observed that: "44. We also find it a little odd that absolutely no attempt was made to join any independent person in the recovery proceedings. It is not as if the railway station was deserted. Some attempt could have been made to involve some independent person in the recovery proceedings and if that independent person had refused, as it often happens, then the police could also have taken the help of other personnel who were available in the police booth which was barely about 50 feet away from where the Appellant was apprehended. It appears that absolutely no steps were taken to either involve any public witness or to take the assistance of any police personnel at the railway station." FIR no.96/06 PS Special Cell 45 /
41.The incriminating facts which pertains to the accused persons are that on dated 19.12.2006 all three accused persons arrested vide deposition of PW2 arrest memos of accused Salman, Abdul Rehman and Akbar Hussain and personal search memos Ex.PW2/H, J, J, I, K and M on receiving secret information. The recovered articles from each of the accused are as follows: Accused Salman was having a bag on which speed was written. the bag was checked and it was found containing the 10 sticks of plastics explosive and on weighing it was found 1 kg.
Accused Abdul Rehman was having a bag on which NIKE was written. On checking the bag, 10 sticks of plastic explosive were recovered. On weighing it was also found 1 kg.
Accused Akbar was having a bag on which POLO USA was written. It was checked and 2 detonators along with hand grenades were recovered.
41.The most crucial point in this case is that the evidence which has come on record against the accused persons is that they were apprehended with the explosive substances as mentioned above which covers the act of each accused for the offence u/s 5 Explosive Substances Act. In this regard the relevant section of the FIR no.96/06 PS Special Cell 46 / Explosive Substances Act are as follows: "Section 5 in The Explosive Substances Act, 1908
5.Punishment for making or possessing explosives under suspicious circumstances. Any person who makes or knowingly has in his possession or under his control any 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, 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."
42.Phrase "explosive substance" and special category explosive substance has been defined under section 2(a) and (b) of Explosive Substance Act, 1908 and for the sake of brevity and convenience same is being reproduced verbatim which is as under: "Section 2 in The Explosive Substances (Amendment) Act, 2001
2. Substitution of new sections for sections 2 to 5. In the Explosive Substances Act, 1908 (6 of 1908 .) (hereinafter referred to as the principal Act), for sections 2 to 5, the following sections shall be substituted, namely:' 2. Definitions. In this Act, FIR no.96/06 PS Special Cell 47 /
(a) the expression" explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement;
(b) the expression" special category explosive substance" shall be deemed to include research development explosive (RDX), penta erythritol tetra nitrate (PETN), high melting explosive (HMX), tri nitro toluene (TNT), low temperature plastic explosive (L PE), composition exploding (CE) 2, 4, 6 phenyl methyl nitramine or tetryl, OCTOL (mixture of high melting explosive and tri nitro toluene), plastic explosive kirkee 1 (PEK 1) and RDX TNT compounds and other similar type of explosive and a combination the of and remote control devices causing explosion and any other substance and a combination thereof which the Central Government may, by notification in the Official Gazette, specify for the purposes of this Act."
43.Being the articles of explosive in nature, they were got destroyed by PW8 in the presence of PW13 vide their depositions. To this effect a certificate of disposal of destruction is also got exhibited vide copy of the Destruction Certificate received from BDS Unit as Ex.PW6/G. Careful perusal this part of the deposition constitutes the act of the accused for the consideration of offence u/s 5 Explosive Substances Act as nothing has come on record contrary to the deposition of the FIR no.96/06 PS Special Cell 48 / depositions of prosecution witnesses. The contentions of the ld. counsel that accused persons have been falsely implicated in this case and they were arrested from their houses on different dates does not come to the rescue of the accused persons precisely for the reasons that they have not produced any of the witnesses in their defence which can rebut the arrest along with the possession of the Explosive substances as recovered from them vide seizure memos PW2/A & Ex.PW2/B (Plastic explosive substance) and seizure memo PW2/C ( Hand Grenade and detonators).
44.Having found such possession from accused persons Abdur Rehman and Salman Khurshid more or less of similar description indicates something i.e. that they were in constant touch with regard to collection and possession of the recovered explosive substances vide seizure memos PW2/A & Ex.PW2/B (Plastic explosive substance) having some purpose in their mind. The third accused Akbar was found having possession of two detonators along with FIR no.96/06 PS Special Cell 49 / hand grenades vide seizure memo PW2/C ( Hand Grenade and detonators). The nature of these explosive substances again can show a path to move to consider that these explosives were possessed by the accused persons to cause some activities. They may be either lawful or for some other ulterior motive or to attain the objective or the purpose planned in the mind of each accused in complicity with each other. This observation definitely may lead towards the conclusion that such type of dangerous explosives might have been collected to cause some unlawful activities. In this regard it is pertinent to mention that the relevant section with regard to unlawful activities are defined under Section 18 of Unlawful Activities (Prevention) Act, 1967 which are referred as under: 'Section 18 in The Unlawful Activities (Prevention) Act, 1967 "Punishment for conspiracy, etc - Whoever conspires or attempts to commit, or advocates, abets,advises or [ incites, directs or knowingly facilities] the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine" FIR no.96/06
PS Special Cell
50 /
45.The terrorist activities are defined under section 15 of the Unlawful Activities Act, 1967 and the punishment of the same has been given in the sections 18 of Unlawful Activities Act for which the charge against all the accused persons has been framed hereinafter referred Act. The section 15 of the Act defines the terrorist act and same is reproduced as under: "15. Terrorist act - Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause
(i) death of, or injuries to, any person or persons;
or
(ii) loss of, or damage to, or destruction of, property; or
(iii)disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(iv)damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or FIR no.96/06 PS Special Cell 51 /
(b) overawes by means of criminal force or the show of criminal force of attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
46.Perusal of section 15 reveals that any act with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign country or causes damage or destruction of any property or equipment used FIR no.96/06 PS Special Cell 52 / or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any Stale Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government in India or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
47.For the sake of brevity and convenience the other relevant sections are also reproduced verbatim which are as under:
121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.Whoever, wages war against the[Government of India], or attempts to wage such war, or abets the waging of such war, shall be punished with death, or [imprisonment for life] [and shall also be liable to fine].
[Illustration] [***] A joins an insurrection against the [Government of India]. A has committed the offence defined in this section.
121A. Conspiracy to commit offences punishable by section 121.Whoever within or without [India] conspires to commit any of the offences punishable by section 121, [***] conspires to overawe, by means of criminal force or the show of criminal force, [the Central Government or any FIR no.96/06 PS Special Cell 53 / [State] Government [***], shall be punished with [imprisonment for life], or with imprisonment of either description which may extend to ten years, [and shall also be liable to fine], Explanation.To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall make place in pursuance thereof.]
122. Collecting arms, etc., with intention of waging war against the Government of India. Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the [Government of India], shall be punished with [imprisonment for life] or imprisonment of either description for a term not exceeding ten years, [and shall also be liable to fine].
48.So long as the recovery of aforesaid explosive substances from each accused is concerned, it indicate towards the mental intent of each accused to conspire for some plan as the explosives recovered from the accused persons were of similar potentiality of 100 gms each which goes to indicate that there was some object to cause some unlawful activities to stir amongst the people which amounts to cause threat unity, integrity, security and sovereignty of the country. The factum of conspiracy can also be gathered from their arrest FIR no.96/06 PS Special Cell 54 / together along with the explosive substances.
49.In case titled as 2005 Crl. L. J. 3950 (SC) State (NCT of Delhi) Vs Navjot Sandhu, it has been held that : "We have already expressed reservations in adopting this test in its literal sense and construing it in a manner out of tune with the present day. The court must be cautious in adopting an approach which has the effect of bringing within the fold of section 121 all acts of lawless and violent acts resulting in destruction of public properties etc., and all acts of violent resistance to the armed personnel to achieve certain political object sought to be attained is of general public nature of has a political hue, the offensive violent acts targeted against armed forces and public officials should not be branded as acts of waging war. The expression 'waging war' should not be stretched too far to hold that all the acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the Government. A balanced and realistic approach is called for in construing the expression 'waging war' irrespective of how it was viewed in the long long past. An organized movement attended with violence and attacks against the public officials and armed forces while agitating for the repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of treason in the form of levying war. We doubt whether such construction is in tune with the modern day perspectives and standards.
Another aspect on which a clarification is called for is in regard to the observation made in the FIR no.96/06 PS Special Cell 55 / old decisions that "neither the number engaged nor the force employed, nor the species of weapons with which they may be armed" is really material to prove the offence of levying/waging war. This was said by Lord President Hope in R. V. Haride in 1820 and the same statement finds its echo in many other English cases and in the case of Maganlal Radha Krishan Vs Emperor (AIR 1946 Nagpur 173 at page 186)."
50.So far as the contradictions or discrepancies pointed out by defence counsel are concerned, they are bound to occur in the statement of prosecution witnesses when they appear to depose after lapse of certain of period. Guidelines on how to appreciate the testimony of natural witnesses were laid down in the case titled as 'Zamir Ahmed Vs The State 1996 Cri.L.J. 2354', where while discussing the provision of section 3 of the Evidence Act, it was held as under : "It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to reproduce a particular incident which they have witnesses with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to FIR no.96/06 PS Special Cell 56 / his own perception and in proportion to his intelligence power of observation."
51.In the present case, accused persons were total strangers and they had absolutely no reason to falsely implicate them in a serious offence like Explosive Substance Act. In case titled as State of Kerala Vs M.M. Mathew & Anr., AIR 1978 SC 1571, it was held that : "The evidence of the investigating officer cannot be branded as highly interested on the ground that they want that the accused are convicted. Such a presumption runs counter to the well recognized principle that primafacie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case."
52.In the case in hand, accused persons made disclosure statements to the police vide Ex.PW4/A of accused Salman Khurshid; Ex.PW4/B of accused Abdur Rehman; and Ex.PW4/C of accused Mohd. Akbar. In their disclosure statements they disclosed that they used to go in FIR no.96/06 PS Special Cell 57 / Bangladesh after doing explosion in Delhi with some oldman. It has also been disclosed by them that they can point out the place at Sopor, Pulvama and Hindwara inJ &K where terrorist camps are running. However, no information was given to the police of Jammu & Kashmir about the accused persons who were coming from there. Despite knowing the place Hindwada and Sopour in Jammu & Kashmir no terrorist could be apprehended nor site of the training camp could be identified. It has been admitted by PW15 that in the disclosure statement of accused persons it is no where mentioned that as to when and where the said material was handed over to them. It is also admitted fact that it is no where mentioned in charge sheet that on any occasion the police team was sent out of station for the purpose of investigation of this case. It is also admitted on record that PW15 had not placed on record any DD entry in this respect. No sign or language or code word was revealed on the basis of which the contact of accused persons would identify them. There were some public persons collected at the spot including media FIR no.96/06 PS Special Cell 58 / persons. It is also admitted that IO did not join any public person present at the spot, at the time of preparing arrest memos and personal search memo of the accused persons. From the submissions made by the defence counsel, no doubt there are discrepancies in the depositions of the prosecution witnesses. But the discrepancies are of casual nature and are result of casual approach adopted by the Investigating Officer and the prosecution witnesses. Minor lapses cannot be made basis for ignoring the testimony of witnesses which otherwise is consistent. Since, the prosecution failed to prove that the accused persons were pertaining to militant group LeT or they are having any nexus with enemy countries. There is no evidence on record to show that the accused persons are having any link with terrorist activities or militants group nor any prosecution witness disclosed the outcome of the investigation with Jammu and Kashmir nor it has been proved by any oral or documentary evidence. Therefore, the prosecution failed to prove that the accused persons have any link with enemy country. Neither there is any recovery FIR no.96/06 PS Special Cell 59 / consequent upon disclosure statements of accused persons nor any pointing out memo have been proved on record. Hence, prosecution has failed to bring home the guilt of the accused persons under section u/s 121/ 121A/ 122 IPC & 18 Unlawful Activities Act
53.In judgment 'Mohammad Usman Mohammad Hussain ... vs State Of Maharashtra on 3 March, 1981 Equivalent citations: 1981 AIR 1062, 1981 SCR (3) 68, the following observation has been made: "In order to bring home the offence under section 5 of the Explosive Substances Act, the prosecution has to prove: (i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object. [75DG] 1: 2. The burden of proof of the ingredients of section 5 of the Explosive Substances Act, is on the prosecution. The moment prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the FIR no.96/06 PS Special Cell 60 / explosive substance for a lawful object, if he takes that plea."
54.In the case in hand, however, the prosecution failed to prove that the accused persons had an intention to cause an explosion of a nature likely to endanger life or to cause serious injury to property. But the prosecution has proved that the accused persons had in possession explosive substances vide seizure memos PW2/A & Ex.PW2/B (Plastic explosive substance) and seizure memo PW2/C ( Hand Grenade and detonators). These were sent to CFSL for test and CFSL result was collected vide CFSL Result Ex.PW9/A . It has been opined in this report that these articles are the explosive substance as defined in the Explosive Substance Act, 1908. The hand grenade was extremely dangerous to store, so the same was diffused vide destruction certificate Ex.PW8/A issued by R S Rathore, Lt. Col.
55.Besides, accused persons have failed to give any satisfactory explanation to the questions put to them with regard to recovery of FIR no.96/06 PS Special Cell 61 / explosive substances from their possession. Therefore, in light of the observations made in judgment 'Mohammad Usman Mohammad Hussain ... vs State Of Maharashtra (supra) I am of the view that prosecution has successfully proved on record that the substance in question were explosive substances vide FSL report Ex. PW9/A; that the accused persons knowingly have in their possession the explosive substances vide seizure memos PW2/A & Ex.PW2/B (Plastic explosive substance) and seizure memo PW2/C ( Hand Grenade and detonators); and (iii) that accused persons were found in possession of explosive substances at public place i.e. bus stand opposite Azad Hind Market, Red Fort on 19.12.2006 give rise to a reasonable suspicion that they were not possessing the same for a lawful object. The burden of proof of the ingredients of section 5 of the Explosive Substances Act, is on the prosecution, which prosecution has successfully proved on record. The moment prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a FIR no.96/06 PS Special Cell 62 / lawful object, if he takes that plea. But, accused persons have failed to give any satisfactory explanation about the recovery of explosive substances from their possession. The citations relied upon by the ld. counsel for accused persons and the citation i.e. Zohra Vs State 2000 (1) JCC [Delhi] are not applicable in the present case on account of different facts. Their pleadings as pleaded in the statement recorded u/s 313 Cr. PC do not come to rescue the accused persons.
56.So long as criminal conspiracy is concerned, it has emerged from the discussion as discussed above that there is no association of accused persons immediately before the day of incident which impact their conduct towards the probability of the offence. In the case in hand no evidence has come on record with regard to hatch a criminal conspiracy immediately prior to the alleged incident. Besides, consequent upon the disclosure statements of accused persons no recovery has been effected which lend the assurance that FIR no.96/06 PS Special Cell 63 / the accused persons had immediate and confirmed nexus with regard to the offence punishable u/s 121A IPC. M ere possession of explosive substances can not tantamount to cause threat the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India though it is pointer that such possession of explosive substances indicates towards some act of destructive in nature yet the specific mode having in the mind of accused persons and in agreement to each other has not been brought on record by the prosecution successfully so, the conviction merely on the indicative, to my view will lead miscarriage of justice as possession of explosive substances per se has been made punishable under section 5 of Explosive Substance Act. Besides, nonproof and determination of mental intent of each accused to commit offences u/s 121/ 121A/ 122 IPC & 18 Unlawful Activities Act, again cannot hold group view that mere possession of Explosive substances was intended to commit terrorist act or belongingness to the accused persons of a terrorist group, organization or other sort of FIR no.96/06 PS Special Cell 64 / gang. Therefore, accused persons are hereby convicted for the offence punishable u/s 5 of the Explosive Substance Act, 1908 for the reasons discussed in the preceding paras and I acquit them for the offences punishable u/s 121/ 121A/ 122 IPC & 18 of the Unlawful Activities (Prevention) Act for the reasons as discussed in the preceding paras.
Accordingly, I convict accused persons namely
1)Salman Khurshid Kori, 2)Abdur Rehman @ Mohd Hassan; and 3)Mohd. Akbar Hussain @ Mohd Qasim @ Habib for the offence punishable u/s 5 of the Explosive Substance Act, 1908; and I acquit them for the offences punishable u/s 121/ 121A/ 122 IPC & 18 Unlawful Activities Act. for the reasons as discussed in the preceding paras.
ANNOUNCED IN THE OPEN COURT ON THIS 13.12.2011 (RAJ KAPOOR) ASJ02/West Distt THC : Delhi FIR no.96/06 PS Special Cell 65 /