Delhi District Court
St. vs Mohd. Aslam Wani @ Amit Kumar on 7 December, 2010
St. Vs Mohd. Aslam Wani @ Amit Kumar
FIR No.122/05, PS: Spl. Cell
U/s 121/121A/122/123 IPC etc.
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI
SC No. 290/1/10
State
Versus
1. Mohd. Aslam Wani @ Amit Kumar
S/o Mohd. Ameen Wani
R/o Mohalla Zahdporahawal
Lal Bazar, Sri Nagar, J&K.
Also At :
H. No. 89, 3rd Floor
Kailash Hills, Kailash Colony
New Delhi.
Case arising out of :
FIR No. 122/5
P.S. : Special Cell
U/s : 121/121A/122/123 IPC
5 Explosive Substance Act &
17 The Unlawful Activities (Prevention)
Act & 25 Arms Act
Date of FIR : 20.11.2005
Date of Institution : 22.09.2010
Date of Final Arguments : 25.11.2010
Judgment reserved on : 27.11.2010
SC No. 290/1/10 Page 1/31
St. Vs Mohd. Aslam Wani @ Amit Kumar
FIR No.122/05, PS: Spl. Cell
U/s 121/121A/122/123 IPC etc.
Date of Judgment : 29.11.2010
JUDGMENT
1. The case of the prosecution is that the accused Mohd. Aslam Wani @ Amit Kumar is engaged in the process of raising funds and collecting explosive material for the purpose of carrying out disruptive and terrorist activities in India in order to overawe the Sovereignty, Integrity and Unity of India along with other associates. On the basis of secret information on 26.08.2005, this accused when apprehended by the raiding team, 5 Kg of RDX, 10 electronic detonators besides one pistol and 10 live cartridges were recovered from him and the said materials were collected by this accused for the militant organization 'JaisheMohammed' for carrying out terrorist activities. The accused also got recovered a sum of Rs.62.96 lacs from H.No.89, 3rd Floor, Kailash Hills, East of Kailash, New Delhi and the said amount had been collected by him from hawala source and part of said amount was to be delivered by him to Shabbir Ahmed Shah and part amount to the activist of 'JaisheMohammed'. The said recovered amount of money and explosive materials were meant to be used for carrying out terrorist activities in India by him and in pursuance of the conspiracy with other accused. The accused Mohd. Aslam Wani @ Amit Kumar is the resident of Sri Nagar and presently residing at H.No.89, 3rd SC No. 290/1/10 Page 2/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. Floor, Kailash Hills, Kailash Colony, New Delhi and he has been working as a carrier of arms ammunition, explosive and hawala money for terrorist banned outfit and have gone for collecting consignment in this respect. It is further alleged that on 26.08.2005 at about 12:15 PM, the accused was apprehended by the raiding police team near Service Lane in front of H. No.73, Kailash Hills Colony, Opp. Jal Suvidha Kendra, South Delhi and from search of airbag which he was carrying, 5Kg of RDX, 10 electronic detonators, one pistol of 9mm having 5 cartridges inside its magazine besides 10 live cartridges were recovered. It is also alleged that the accused had collected the said consignment from one Shaukat from Azad Pur Mandi, Delhi and was to be delivered to militant of 'Jaishe Mohammed' and said materials were to be used for carrying out terrorist and disruptive activities in India. It is also revealed from the charge sheet that the said amount of Rs.62.96 lacs was collected by the accused from Hawala operator through one Iqbal resident of Mumbai and out of the said amount he had to deliver Rs.52.96 lacs to Shabbir Ahmed Shah and remaining Rs.10 lacs to be paid to activist of 'Jaish eMohammed'. The accused was also in close contact with Shabbir Shah of 'Democratic Freedom Party' and Abu Baqar, who is area commander of militant organization 'JaisheMohammed'. It is also SC No. 290/1/10 Page 3/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. revealed from the CFSL Report that the pistol as recovered from the accused was in working order and the 15 cartridges were live and the material recovered confirms the presence of 'Potassium Nitrate', 'Sulphur' and 'Charcoal' based mixture which is low explosive and 10 detonators were live. Therefore, on the basis of the investigation and the material on record, the charge under section 121/121A/122/123 IPC, under section 17 of Unlawful Activities (Prevention) Act, section 5 of Explosive Substance Act and under section 25 of Arms Act has been framed against the accused Mohd. Aslam Wani @ Amit Kumar for which the accused pleaded not guilty and claimed trial.
2. The prosecution examined 11 witnesses in order to prove its case against the accused. The accused in his statement under section 313 Cr.P.C. denied all the allegations & depositions and stated that he had a fight at Sapna Cinema Hall with a person namely Rambir Singh and the alleged recovery was planted upon him. He further stated that he knows 'Kashmiri' language and he does not know 'Hindi' at all. On 25.08.2005, he has gone to purchase cinema tickets at Sapna Cinema Hall for the morning show and one person namely Rambir Singh had broken queue and since he objected the same, he started hurling filthy abuses and even started manhandling. He also shouted "You Kashmiri, I shall teach you a lesson". He immediately rang upto ACP SC No. 290/1/10 Page 4/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. Rajbir Singh and after 510 minutes, the said ACP Rajbir Singh arrived along with police and he was beaten mercilessly and taken away by the investigating agency. He tried to explain to the police officers about innocence but no heed was given. He has been falsely implicated in this case.
3. The accused in his defence examined DW1 who stated in his deposition that on 25.08.2005, he was standing in the queue at Sapna Cinema for purchasing ticket at about 11:45 AM. One tall man with the name of Rambir Singh came to purchase ticket without coming into the queue. Accused Aslam Wani objected the same and the said person started abusing and assaulting the accused, immediately rang up to one Rajbir Singh ACP, who after 10 minutes reached at the spot along with 78 police persons and started beating the accused and took him away from the spot. The accused has been falsely implicated in this case.
The DW2 Abdul Hamid Alaband also stated the similar version in his examination in chief and further stated that the accused is innocent and Charanjeet Singh is an eye witness. The alleged recovery of the contraband is planted upon the accused. He has not sent any complaint to President of India or the Chief Minister of J&K as the matter is subjudice. He has never met with the accused in the SC No. 290/1/10 Page 5/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. Tihar Jail. Shamina is sister of the accused and wife of DW2 met the accused in the court. She had informed about the details of the case to DW2 Abdul Hamid and told the accused that he was standing in the queue of Sapna Cinema Hall. He was aware about this fact since the beginning of this case and he started following the case about 8 months back.
4. SI Rahul Kumar is the complainant. On the basis of his complaint, FIR No. 122/05 was registered under section 121/121A/122/123/120B IPC, section 4/5 Explosive Substance Act and 25 Arms Act against the accused Mohd. Aslam Wani. SI Rahul Kumar examined as PW6 narrated in his examination, the case of the prosecution and similar version has been repeated as stated by other prosecution witnesses who stated on 26.08.2005 that he was posted as subinspector at Special Cell, Lodhi Colony in the 2nd Week of August 2005. An information was received from Central Intelligence Agency that one AslamWani R/o Kashmir is working as a carrier for militant and used to carry arms, ammunition, explosive and hawala money for militants and also received information that he has set up a base in South Delhi. In order to develop this information, a team under the supervision of ACP Rajbir Singh, consisting of Insp. Mohan Chand Sharma, he himself,SI Sanjay Dutt, SI Ramesh Lamba, SI Rajender SC No. 290/1/10 Page 6/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. Sherawat, HC Dinesh, HC Satender was formed. Sources were deployed and technical surveillance was also mounted. On 26.08.2005 at about 09:45AM, an informer came to the office and provided specific information to Insp. Mohan Chand Sharma that Mohd. Aslam Wani is residing at 89, Kailash Colony, South Delhi and he has gone to collect consignment of arms, ammunition and explosive and will return afternoon and information was lodged. After discussion with the senior officers, a team of the aforesaid persons was formed. The team duly equipped with arms and ammunitions and other things left the office at 10:15AM in two private cars and two twowheelers and reached at the gate of Kailash Colony at 10:45AM. On the direction of Insp. Mohan Chand Sharma, he requested 56 passersby to join the raiding party after apprising them about the facts. But all of them left the place without disclosing there names and addresses and giving genuine excuses. Insp. Mohan Chand Sharma briefed the raiding party and deployed them at all possible entries to 89, Kailash Colony. Insp. Rahul Kumar along with Insp. Mohan Chand Sharma, SI Sanjay Dutt, SI Rajender Sehrawat and informer take position near H.No.73, at corner of the street. At about 12:15PM, one person was seen coming on foot from DAV School side having air bag on right shoulder. The informer told that he is Aslam Wani. Immediately, SC No. 290/1/10 Page 7/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. Insp. Rahul Kumar alerted other team members and the accused Aslam Wani was apprehended by him, SI Sanjay Dutt and SI Rajinder Sehrawat opposite Jal Suvidha Kendra. During the search of grey colour raxine air bag having written POLO on it in red paint, it was found containing black colour granualated explosive in double layered black polythene, on weighing it was found to be 5 Kg. Two samples of 10 Gms each were taken in two plastic containers. During the search of front pocket of the bag, one large WIMCO HOME LITES match box was recovered. It was found containing 10 electric detonators wrapped with the help of cotton in match box. From the same front pocket of bag, one purple colour cloth Thaila was also recovered which was containing one pistol along with 10 live cartridges. On checking, 5 more cartridges were found in the magazine of the pistol. The recovered remaining 4.98Kg explosive kept in the same double layered polythene and cloth pulanda of the same was prepared and marked as E. Both the samples were wrapped and cloth pulandas prepared and marked as S1 and S2. Cloth pulanda of Wimco Match Box was marked as D. Out line sketch of recovered pistol, magazine and one of the cartridge was prepared. The pistol was having inscribed AUTO PISTOL 9MM IROVIN NO 2006 on the one side of the slide. One brass strip attached to it was inscribed SC No. 290/1/10 Page 8/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. AUTO PISTOL. On the other side of the pistol AUTOMATIC PISTOL MADE IN GERMANY was inscribed. On the same side one design of fish was also inscribed. On the bottom of each recovered cartridge KR 04 9MM2Z was inscribed. On the bottom of magazine NO 2006 was inscribed. All these articles kept in cloth pulandas and same were sealed with the seal of RKS. Form CFSL was filled up and after use seal was handed to SI Sanjay Dutt. During the casual search, accused Aslam Wani told that he is working for banned militant outfit 'JaisheMohammed' and he collected the recovered consignment from one Shaukat at the Mandi and same was to be delivered to militants in Delhi. Rukka was sent through HC Dinesh for registration of the case and further investigation was conducted by SI Vinay Tyagi. SI Vinay Tyagi prepared the rough site plan of the spot on the instance of Insp. Rahul Kumar. The complaint is Ex.PW6/A. The seizure memo of arms and ammunition is Ex.PW6/B. Black colour granuated explosive is Ex.P1. 9mm Pistol with magazine collectively Ex.P3. The detonators are collectively Ex.P5, the sample explosive is Ex.P6 and P7. Two Tshirts, one shirt, two pair of jeans also recovered from the possession of the accused.
PW2 SI Vinay Tyagi conducted the investigation who prepared the seizure memo of the aforesaid articles and also recorded SC No. 290/1/10 Page 9/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. the disclosure statement of the accused vide Ex.PW2/D. He also prepared the site plan at the instance of Insp. Rahul Kumar vide Ex.PW2/A. He also arrested the accused vide arrest memo Ex.PW2/B and personal search memo Ex.PW2/C. On the basis of the disclosure statement, the accused led the police party to his house no. 89, 3rd Floor, Kailash Hills, Kailash Colony, New Delhi and got recovered a suitcase trolley of navy blue colour from one wooden almirah of his house. The suitcase was containing 126 packets of Indian Currency notes of denomination of Rs.500/ each. All Indian currency notes packets were checked and counted, same were in total Rs.62,96,000/. 125 currency note packets in denomination of Rs.500/ each contains 100 number each packets. Remaining one packet was having 92 notes in the denomination of Rs.500/ each. The aforesaid currency notes were taken into possession and sealed with the seal of VKT. Thereafter, the accused was brought to the office of Special Cell and the currency notes were deposited in the Malkhana. The accused was again interrogated and he made further disclosure statement and the same was got typed by him on computer which is Ex.PW2/F in the presence of SI Sanjay Dutt and SI R.S. Sehrawat. The statements of all the police officials were recorded under section 161 Cr.P.C. On 02.09.2005, on the direction of senior officers, four pulandas were SC No. 290/1/10 Page 10/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. taken to the malkhana and same were deposited to CFSL, Lodhi Road vide RC No.134/21/2005. On 29.09.2005, he collected the CFSL result and deposited the same to MHC(M). Expert opinion is Ex.PW2/G which was handed over to ACP Sanjeev Yadav, the then investigating officer of the case.
PW1 ASI Mohd. Idrish is the duty officer who proved the FIR Ex.PW1/A and endorsement on the rukka Ex.PW1/B. PW3 R. Narayan Swami, retired Chief Secretary passed the order on 09.09.2005 of retention of Rs.62,96,000/, being Principal Secretary, (HOME), Govt. of National Capital, Delhi. The copy of the retention order is Ex.PW3/A. PW4 V.B. Saxena proved the sanction under section 17/23 of the Unlawful Activities (Prevention) Act 2004. The sanction order is Ex.PW4/A. PW5 A. Dey, Principal Scientific Officer cum Assistant Chemical Examination, Govt. of CFSL, CBI, he proved the FSL report vide Ex.PW5/A. Parcel S1 contained black coloured powdery material. Parcel S2 contained black coloured powdery material. Parcel P contained one 9mm pistol mark W/1 with empty magazine and fifteen 9mm cartridges marked C/1 to C/15. Parcel D contained 10 electric detonators. After examination of the above, he prepared SC No. 290/1/10 Page 11/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. his report vide Ex.PW5/A.
5. PW7 Insp. Rajender Sehrawat, PW9 ASI Dinesh Singh, PW10 Insp. Sanjay Dutt are the members of the raiding party and deposed in similar manner as stated in the preceding paras of the judgment. PW1 ACP Sanjeev Kumar Yadav after completion of the investigation prepared the challan and filed in the court under section 173 Cr.P.C. After completion of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C. and defence evidence was led by the accused.
6. Having heard,the submissions of Ld. APP for state and Ld. counsel for the accused and material placed on record.
7. Ld. defence counsel submitted that the FIR is different and the charge are not supported through prosecution evidence. False implication of accused at the instance of the ACP Rajbir Singh and the mandatory directions of the Hon'ble Supreme Court are violated as regard the arrest of the accused. Provisions of search and seizure as incorporated in the Cr.P.C. are violated. There is no evidence of waging war against Govt. of India or to cause huge loss to public lives and property etc. There is no mention of criminal conspiracy in the FIR and there is no evidence for terrorist act against the accused. It is further submitted that one person namely Khurshid Ahmed Butt has SC No. 290/1/10 Page 12/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. been shown as coaccused who is completely stranger to the accused and the disclosure statement have been fabricated and concocted in order to falsely implicate the accused for criminal conspiracy. There is no charge and evidence of raising of funds for terrorist act and no charge under section 17/23 of Unlawful Activities (Prevention) Act, 2004, 4/5 Explosive Substance Act and no offence made out under section 121/121A/122/123/120B IPC and there is no evidence under section 25 of Arms Act.
It is also contended by Ld. defence counsel with respect to the sanction order, no sanction order is exhibited except one i.e. sanction under section 17/23 of Unlawful Activities (Prevention) Amendment Act, 2004. Therefore, prosecution under section 121/121A/122/123/120B IPC and under section 5 Explosive Substance Act and section 25 of Arms Act are bad in law, the sanction has not been proved in accordance with law. Further scope of charge under section 17 Unlawful Activities (Prevention) Amendment Act, 2004 is quite different than the charge framed against the accused. Central Govt./Lt. Governor only can accord sanction and that too when he is satisfied on the basis of the entire prosecution case. The power of sanction cannot be delegated. In the sanction order the words "It appears" also frustrate the mandatory provisions of law for SC No. 290/1/10 Page 13/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. accord the sanction, so prosecution under Unlawful Activities (Prevention) Amendment Act, 2004 also bad in law. It is further contended that at the time of examination of the accused under section 313 Cr.P.C., no incriminating evidence of conspiracy or the sanctions mentioned above was put to the accused and therefore, under settled principle of law, no incriminating evidence can be used against the accused which has not been specifically put to the accused at the time of his examination. Disclosure statements of the accused are highly illegal and the same are also hit under section 25/26/27/30 of Indian Evidence Act. No recovery has been effected after disclosure statement of accused. Even as per the prosecution story, the accused was carrying Arms & Ammunitions and Hawala money and further he was to pass the same to some other persons. Even under these allegations the accused has been wrongly charged for the said offence. Recoveries of Arms and Ammunitions have been planted for the inimical reasons. Money of the accused and his business people has been wrongly taken into possession and also termed as Hawala money and the same has been accounted for. There is no iota of allegations in the FIR or in the prosecution evidence that was any former association or previous meeting of mind of the accused with any other person. It is further contended that bare disclosure of accused regarding Jihad is SC No. 290/1/10 Page 14/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. not sufficient to paint him black for the offences of waging of war. The disclosure statement is highly illegal and against the provisions of law. There are major contradictions in the evidence of prosecuiton of witness Mr. A. Dey stated that the RDX is an organic compound. The sample was inorganic in nature which establishes that the prosecution witness has given a false report about the arms and ammunitions. Defence evidence fully supports false implication of the accused. Prosecution has miserably failed to prove the aforesaid offences against the accused beyond reasonable doubts. With these submissions, humbly prayed for acquittal of the accused Mohd. Aslam Wani.
8. In view of the submissions and the material placed on record. Ld. defence counsel has vehemently contended that no offence punishable under section 121/121A/122/123 read with section 120B of IPC and under section 17/23 of Unlawful Activities (Prevention) Act which were not proved by the prosecution against the accused. Merely having in possession of article like RDX, it cannot be said that the accused conspired to commit any offence punishable under section 121 IPC or conspired to overawe by means of criminal force or the show of criminal force to the Central Govt. or and State Govt. It is also submitted that the prosecution has failed to prove that SC No. 290/1/10 Page 15/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. the accused had collected arms with intention of waging war against Govt. of India or had concealed the existence of design to wage war against Govt. of India. It is also submitted that the prosecution has failed to prove that the accused had conspired to commit a terrorist act or was a member of terrorist gang or organization.
9. In 2005 Cr. L.J. 3950 (SC) State (NCT of Delhi) V 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 brining within the fold of section121 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' SC No. 290/1/10 Page 16/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. inrrespective 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 old decisions hat "neither the number engaged nor the force employed, nor he 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. Vs Hardie in 1820 and the same statement finds its echo in many other English cases and in the case of Maganla Radha Krishan Vs Emperor (AIR 1946 Nagpur 173 at page 186 ) ".
10. So far as with respect to the offence under section 25 of Arms Act, the accused was found in possession of 9mm pistol and 10 live cartridges. The recovery of the said articles has been testified in the deposition of police officials. The said case property was sent to FSL and the same was found to come within the definition of Arms Act. The sanction under section 39 has been granted by Sh. Ajay Kumar, DCP, Special Cell and the accused to this effect has admitted SC No. 290/1/10 Page 17/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. the case of the prosecution and the accused also brought an application so as to confess his guilt. In addition to the admission made by the accused, the prosecution in otherwise proved its case for recovery of the arms and ammunitions in contravention of the Arms Act and section 39 of Arms Act has been admitted by the accused.
11. So far as with respect to the section 17 of the Unlawful Activities (Prevention) Act, the prosecution has to bring on record that the accused had not met with any militant or with Khurshid Ahmed Bhutt. But so far as the material placed on record to this effect was totally conspicuously discernible. Except the disclosure statement of the accused, there is no whereabout of the Khurshid Ahmed Bhutt nor any parentage and addresses. There is no efforts made by the investigating agency to bring any clue of interconnection of the accused with Khurshid Ahmed Bhutt or with 'JaisheMohammed' militant outfit. Similarly, in the disclosure statement of Khurshid Ahmed Bhutt, there is no clue of parentage and physical appearance or the address of the accused. The accused was not taken to J&K for pointing out or identifying the Khurshid Ahmed Bhutt. There is no details of meetings or conspiracy to commit any offence or to provide funds towards any militant group. The investigation agency has not made any efforts to find any link for connecting the accused with any SC No. 290/1/10 Page 18/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. militant outfit or to unearth incriminating material against the accused. The prosecution has also not able to make an abortive attempt to establish connectivity of the accused with some militant on the basis of telephonic communications. The prosecution had not presented any telephonic conversation record nor the cell phones have been made case property.
12. In order to bring home the guilt of the accused, two seizure memos have been prepared by the investigation agency. In order to establish the money which was recovered from his person, it is proved through defence evidence that the money belongs to other who were doing the business of costly woolen items. The prosecution has not been able to bring on record any evidence which communicatively form a chain which shows that the accused was involved in any criminal conspiracy. There is no criminal conspiracy has been proved by the prosecution against the accused that any militant group or with Khurshid Ahmed Bhutt. Therefore, it cannot be said that the accused is a part of any unlawful assembly. Moreover, the sanction order for prosecution of the accused, the words "it appears" shows that there was no application of mind by sanctioning authority. The prosecution has not been able to prove the sanction order under section 17 and 23 of Unlawful Activities Act.
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St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc.
13. The prosecution witnesses have, in unison, admitted that there was nothing to connect the accused with the militant activities or to show that accused was member of any banned militant outfit. The prosecution has also failed to prove that accused had any contacts with enemy country and therefore, it has to be held that prosecution has failed to prove guilt of accused for offence under section 121/121A/122/123 read with section 120 B IPC and section 17/23 of the Unlawful Activities (Prevention) Act 1967.
14. So far as offence punishable under section 5 Explosive Substance Act are concerned, it is submitted by Ld. defence counsel that the prosecution has failed to prove the recovery of explosive substance from the accused beyond all reasonable doubt. It is submitted that there were material contradictions and improbabilities in the evidence led by prosecution. The seizure memo and particulars of FIR and relevant sections were put on the same after inquiring from the police station about the FIR number.
In case titled as Zohra Vs State 2000 (1) JCC (Delhi) 167, it has been observed that the number of FIR on the top of documents was in the same ink and same handwriting which clearly indicated that documents were prepared at the same time and prosecution did not explain as to under what circumstances, number of FIR appeared on SC No. 290/1/10 Page 20/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. the top of the documents which were allegedly prepared at the spot and the circumstances gave rise to inference that the FIR was recorded prior to alleged recovery.
15. So far as with respect to the charges for the offence under section 5 of the Explosive Substance Act, on perusal of the charges it is reflected that in pursuance of the secret information the accused Mohd. Aslam Wani@ Amit Kumar was apprehended on 26.08.2005 at about 12:15 AM by the raiding police party of Special Cell from near Service Lane in front of H. No.73, Kailash Hills Colony, Opposite jal Suvidha Kendra, South Delhi. From search of airbag, which he was carrying, 5Kg of RDX, 10 electronic detonators, one pistol of 9mm having 5 cartridges inside its magazine 10 live cartridges were recovered. It is also revealed from the FSL report that pistol as recovered from the accused was in working order and 15 cartridges were live and the material recovered confirms the presence of 'Potassium Nitrate', 'Sulphar' and 'Charcoal' based mixture which is low explosive and 10 detonators were live.
The prosecution in order to substantiate the charges, examined the members of the police party who have in one voice stated about the recovery of explosive substance, arms and ammunitions. Apart from them, the prosecution also examined PW5 SC No. 290/1/10 Page 21/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. A. Dey who stated in his cross examination that he does not remember whether the case property were examined on the same day or on the following day. The Solphonallic Acid and Alpha napthalamine acids were used for examination of S1 and S2. It is also admitted that no residue were reserved after the chemical examination of the exhibits. After chemical examination no residue is preserved for any further chemical examination. He cannot tell the chemical formula of RDX as he does not remember the same but he can furnish the same if required. He cannot tell whether RDX is an open chain compound or closed chain compound. He cannot tell how the RDX is manufactured. He cannot verbally explain the structural formula of RDX bu the same can be drawn on paper. The sample was analysed by TLC and not HPLC as it is a systematic chemical analysis which he perform in laboratory. The RDX is organic in nature but the sample was inorganic in nature. There is no mention of issuing of material for the purpose of examination. He has taken five days for conducting examination of the sample but he cannot tell as to what specific time was taken by each sample.
The prosecution in their application under section 311 Cr.P.C. admitted that the sanctions to prosecute the accused for the offence under section 121/121A/122/120B IPC from competent SC No. 290/1/10 Page 22/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. authority was not proved through PW4 V.B. Saxena. Even also Alok Kumar, DCP who accorded the sanction had also not been examined. Alok Kumar, DCP is neither the complainant nor cited as witness. It is well established principle of law if the cognizance of the case without sanction, the whole trial is void and cannot be cured. The failure to obtained the sanction would render to prosecution illegal.
16. The Supreme Court of India in State of M.P. Vs Bhupender Singh, SLP No. 2815 of 1998, observed that for a prosecution under the said act, the consent of the Central Government is requisite by virtue of the provisions of section 7 thereof. By notification dated 2nd December, 1978 the Central Government entrusted to District Magistrates, inter alia, in the State of Madhya Pradesh its functions under section 7 of the said act.
The power of granting sanction under section 7 of the said Act rests with the Central Government. The Central Government has delegated it to the District Magistrate. It is not competent for the State Government to further delegate to the Additional District Magistrate a power of the Central Government which Central Government has delegated to the District Magistrate.
17. In the decision of the Supreme Court in Hari Chand Aggarwal Vs The Batala Engineering Co. Ltd. AIR 1969 SC 483, SC No. 290/1/10 Page 23/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. where it is observed that under section 20 of the Defence of India Act, the Central Government had delegated its powers under section 29 to a District Magistrate, an Additional District Magistrate was not competent to requisition property under section 29 simply because he had been invested with all powers of a District Magistrate under section 10 (2).
In another case of Hon'ble Patna High Court in 2009 Cri. L.J. 3886, observed that sanction for prosecution the accused under section 3, 4, 7 was not given by proper authorities. Under under this section conviction is liable to be set aside.
In para 16 it was observed that "the main point raised on behalf of the appellants is that the appellants could not be convicted under section 3/4 of the Act as sanction for prosecution was given by the District Magistrate on 23.05.1989. It has been pointed out that at the relevant time the District Magistrate was not empowered to give sanction for prosecution. The power vested with the Central Government. Referring to section 7 of the Act, which reads as follows: Restriction on trial of offences : No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the (District Magistrate). The word District Magistrate was SC No. 290/1/10 Page 24/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. replaced in place of the word Central Government by act 54 of 2001 with effect from 01.02.2002. Therefore, it is submitted that at the relevant time the sanction could not have been awarded by the District Magistrate who was not in power at the said time of awarding of sanction.
18. In the present case, the sanction to prosecute under section121/121A/122/123/120B IPC, section 5 of Explosive Substance Act, section 17/23 of Unlawful Activities and in exercise of the powers conferred by subsection (1) of section 196 of Code of Criminal Procedure, 1973 read with Government of India, Ministry of Home Affairs notification dt. 20.03.1974, Lt. Governor of the National Capital Territory of Delhi granted sanction for the institution of criminal proceedings against the accused and to prove the sanction examined PW4 V.B. Saxena on behalf of Lt. Governor of Govt. of NCT of Delhi. There is no letter of delegation of power to PW4 V.B. Saxena, Deputy Secretary, HOME, NCT of Delhi. the sanction authority who accord sanction cannot delegate or subdelegate power of sanction and nobody on his behalf can prove the sanction. The Lt. Governor never appeared in witness box to prove the sanction on any such leter od delegation in term of PW4 V.B. Saxena.
PW4 V.B. Saxena deposed that being Deputy Secretary SC No. 290/1/10 Page 25/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. (Home) Govt. of NCT of Delhi. Sanction for the prosecution of the accused instituted for Unlawful Activities (Prevention) Act amended in 2004 vide sanction order Ex.PW4/A. But he has not proved the sanction under section 7 of Explosive Substance Act as well as under
section 196 Cr.P.C. in support of the charge framed against the accused.
Therefore, the sanctions as required to be proved, is not proved in accordance with law to bring home the charges for the offence under section 121/121A/122/120B IPC and section 5 of Explosive Substance Act and 17 & 23 Unlawful Activities Act.
19. In these circumstance and the aforesaid discussion, the prosecution has been able to prove its case only under section 25 of the Arms Act. However, the charges in other provision could not be substantiated effectively and technically. Therefore, the accused Mohd. Aslam Wani @ Amit Kumar S/o Mohd. Ameen Wani is hereby convicted for the offence under section 25 of Arms Act.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 25.11.2010 (WEST02):DELHI SC No. 290/1/10 Page 26/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE (WEST02), DELHI SC No. 290/1/10 State Versus 1. Mohd. Aslam Wani @ Amit Kumar S/o Mohd. Ameen Wani R/o Mohalla Zahdporahawal Lal Bazar, Sri Nagar, J&K. Also At : H. No. 89, 3rd Floor Kailash Hills, Kailash Colony New Delhi. Case arising out of : FIR No. 122/05 P.S. : Special Cell U/s : 25 Arms Act Order on Sentence Present: Sh. Subhash Chauhan, Ld. APP for state.
Convicted from J/C with counsel Sh. S.K. Srivastava. Having heard the submissions of Ld. APP for state and the counsel for the accused persons on the quantum of sentence. The SC No. 290/1/10 Page 27/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. accused Mohd. Aslam Wani @ Amit Kumar had been facing charge for the offence under section 121/121A/122/123 IPC, 5 Explosive Substance Act & 17 & 23 of Unlawful Activities (Prevention) Act & 25 Arms Act. However, the prosecution succeeded to prove the offence punishable under section 25 Arms Act, vide separate judgment dt. 29.11.2010, the accused was convicted for the offence punishable under section 25 of Arms Act.
Ld. APP for state argued that the prosecution proved its case against the accused beyond all reasonable doubts for the offence under section 25 Arms Act. The testimony of prosecution witnesses are trustworthy, corroborated and believable. The recovery of weapon of offence from the convicted shows that there may be apprehension of some major event. However, the timely arrest of the accused diffuse the motive of committing the crime by the convicted. Under these circumstances, the convicted is are liable to be sentenced maximum as prescribed under the law.
Per contra, Ld. Counsel for the convicted submitted that the convicted is facing the trial since last five years and he has been falsely implicated in this case. He was taking ticket from Sapna Cinema Hall where a quarrel took place with respect to queue and the convicted has been dragged in this case. He is nothing to do with the criminal offence. SC No. 290/1/10 Page 28/31
St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. The convicted has remained in judicial custody for a period of five years. The convicted is having clean antecedents. He belongs to very poor family and his family members are dependent on him. Therefore, it is humbly prayed that the convicted may be released to undergone imprisonment.
In view of the aforesaid submission of Ld. APP for state and Ld. defence counsel and material placed on record, section 25 of the Arms Act provided the punishment for imprisonment for a term not less than one year and which may extend to seven years and also shall liable to fine. The possession or carrying any prohibited arms or prohibited ammunitions in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, which may extend to ten years and shall also be liable to fine.
The arms and ammunitions as recovered have been testified in FSL and the report to this effect has also been proved by the prosecution witnesses. Even fire arms which were recovered from the possession of the convicted in working order. It has been established from the evidence that the pistol and cartridges have been seized from the person of the convicted and after getting them properly sealed, they were deposited in the malkhana in sealed condition. The MHC(M) has deposed that such weapons remained intact in sealed condition until the SC No. 290/1/10 Page 29/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. same were sent for being tested by the expert.
In the present case, the alleged incident took place about five years back and since then the convicted is in judicial custody. The convicted has not involved in any other case and this is the first offence committed by the convicted. Section 25 (1B) of the Arms Act 1959, also provides the minimum sentence of imprisonment for one year. In its proviso the court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year. The convicted has never used the fire arms in the encounter with the police party.
Considering the facts and circumstances of the present case, as well as the age, character, antecedent of the convicted, Mohd. Aslam Wani @ Amit Kumar S/o Mohd. Ameen Wani is sentenced to imprisonment already undergone and fine of Rs.10,000/ in default of three months simple imprisonment for the offence punishable under section 25 of Arms Act IPC.
I think the sentence awarded will meet the end of justice and also have a deterrent as well as reformatory way in the mind of the convicted.
Copy of this order be given to the convicted free of cost forthwith.
SC No. 290/1/10 Page 30/31 St. Vs Mohd. Aslam Wani @ Amit Kumar FIR No.122/05, PS: Spl. Cell U/s 121/121A/122/123 IPC etc. Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court ADDITIONAL SESSIONS JUDGE today i.e. on 07.12.2010 (WEST02):DELHI SC No. 290/1/10 Page 31/31