Delhi District Court
State vs . Mohd. Iftakhar Alam @ on 22 April, 2009
IN THE COURT OF SMT. PRATIBHA RANI,
ADDL. SESSIONS JUDGE-01(CENTRAL),
TIS HAZARI COURTS, DELHI
SC No.14/07
State Vs. Mohd. Iftakhar Alam @
Abdulla @ Khalil,
S/o Sh. Mohd. Inamul Haque,
R/o Village & P.O. Mehmooda,
PS Khudaganj, Distt. Nalanda,
Bihar.
FIR No.4/07
U/S : 121/121-A/122/123/120-B
IPC r/w Sec.4/5 of Explosive
Substances Act and under Sec.
18/20/21/23 of Unlawful
Activities (Prevention)
Amendment Act, 2004
PS : Special Cell
Date of Institution : 24.4.07
Arguments heard on : 6.4.09
Order pronounced on : 20.4.09
***
JUDGMENT
In brief, the case of the prosecution is that in January, 2007, in the second week, information was received from Central Intelligence Agency about the planning by banned Militant Organisation Lashkar-e-Tayeba (LeT) to carry out terrorist activities in the Capital on Republic Day and for carrying out these activities, they were trying to supply arms, 1 ammunitions and explosive material from Bihar area. Under the supervision of ACP Sh. Sanjeev Yadav, team led by Inspector Mohan Chand Sharma was formed to develop the information. During the development of the information, it was revealed that one Iftakhar, resident of Nalanda, Bihar having code name Abdulla had been deputed by the Pakistan based Commanders of LeT to supply the consignment of arms, ammunitions and explosive material to disrupt Republic Day Celebration, hence sources were deployed in Nalanda, Bihar. On 25.1.2007 at about 11.30 am, SI Ramesh Lamba received specific information through secret informer that the person having code name Abdulla would come to the Bus Stop in front of Seelam Pur Metro Station at about 3.30 pm to deliver the consignment and if a raid was conducted, he could be apprehended. On the basis of this information, a raiding party was constituted and raid was conducted. The accused was apprehended from near bus stop, Seelam Pur Metro Station. At that time, accused was carrying one black colour bag on his shoulder which was searched in the presence of two public witnesses. During search of bag, one steel box (container) kept under the layer of clothes was recovered which was checked. From that steel box, three polythenes containing small quantity of dry fruits were recovered and under these polythenes, one another transparent polythene 2 was recovered which was found containing explosive material in semi liquid form. One more polythene was also recovered which was kept under the clothes in the bag wrapped in dark blue colour underwear and that polythene was found containing two electric detonators wrapped in cotton. Necessary proceedings regarding sealing and seizure of recovered articles were done and accused was arrested and after completion of investigation, accused was sent to face trial for the offences punishable under Sec.121/121-A/122/123/120-B IPC r/w Sec.4/5 of Explosive Substances Act and under Sec.18/20/21/23 of Unlawful Activities (Prevention) Amendment Act, 2004.
2. After compliance of the requirements of Section 207 CrPC, the case was committed to the Court of Sessions.
3. After hearing on the point of charge, accused was charged on 13.9.2007 only for the offence punishable under Sec.4 & 5 of Explosive Substance Act, 1908 to which he pleaded not guilty and claimed trial.
4. Prosecution has examined eleven witnesses in all in support of its case. Accused has also been examined under Sec.313 CrPC to enable him to explain about the evidence appearing against him in which he has denied the case of prosecution and stated that he was arrested on 21.1.2007 from Jamshed Pur, outside Gangotri Hospital where his wife was 3 admitted for delivery and after his arrest, he was brought to Delhi on 23.1.2007 by Calcutta-Delhi Rajdhani Express and later on, falsely implicated in the present case. Accused has not led any evidence in his defence.
5. I have heard Sh. S.C. Sharma, Addl. PP for the State and Sh. K. Ansari, counsel for accused. On behalf of accused, written submissions have also been filed by Sh. K. Ansari, Advocate. I have carefully gone through the written submissions filed on behalf of accused as well as the entire record.
6. In this case, PW-1 SI Ramesh Lamba, PW-3 Sh.
Ashish & PW-5 Sh. Bimlesh Kumar Tripathi - the public witnesses, PW-4 SI Rajinder Shehrawat and PW-11 ACP Sanjeev Kumar Yadav are the material witnesses regarding the apprehension and arrest of the accused and recovery of explosive substance from him.
7. PW-2 ASI Raj Singh is the Duty Officer who has recorded the FIR of this case and proved the copy of the same as Ex.PW2/A and also the endorsement made by him on the rukka as Ex.PW2/B.
8. PW-6 Sh. A. Dey, Principal Scientific Officer-cum- Assistant Chemical Examiner has examined the sample of explosive substance and two electronic detonators recovered in this case and proved the report given by him as Ex.PW6/A as per 4 which the lump of brown coloured putty like material is a high explosive mixture and the two live electric detonators are the explosive substance as defined in the Explosive Substance Act, 1908.
9. PW-8 Sh. K.R. Mehndireta, Assistant Director, Department of Consumer Affairs, Govt. of NCT of Delhi has proved the sanction order as Ex.PW8/A given by him for prosecuting the accused for the offences punishable under Sec.121/121-A/122/123/120-B IPC and under Sec.17/18/20/23 of Unlawful Activities (Prevention) Act. PW-9 HC Sushil Kumar was given up by ld. Addl. PP being repetitive in nature.
10. PW-10 ASI Praramjeet Singh is the Incharge, Malkhana, Special Cell. He has stated that on 25.1.2007 ACP Sanjeev Kumar Yadav deposited six sealed parcels sealed with the seal of RCL and marked as A, S1, S2, B, C, D, one CFSL form and two copies of seizure memo i.e. seizure memo of articles recovered from the accused and the personal search of the accused, regarding which he made entry at serial No.937 in register No.19. He has further stated that on 27.2.2007 two sealed parcels sealed with the seal of RCL alongwith CFSL form were sent to CFSL, Lodhi Road, New Delhi through HC Rustam Ahmed vide RC No.29/21, regarding which he made endorsement against the said serial number in register No.19. 5 On 26.3.2007 two sealed parcels sealed with the seal of CFSL, Lodhi Road was received back through Ct. Rajeev Kumar from CFSL, Lodhi Road, Delhi regarding which endorsement was made in register No.19. He has proved the photocopies of the relevant entries as Ex.PW10/A and B. PW-7 HC Rustam Ahmed took the case property to CFSL, CBI CGO Complex vide RC no.29/21.
11. PW-1 SI Ramesh Lamba has stated that in the second week of January, 2007 a secret information was received from Central Intelligence Agency that Pakistan based Commanders of banned Militant Organisation Lashkar-e-Tayeba were planning to cause a militant activity in Delhi on the occasion of Republic Day and in the process they were sending arms, ammunitions and explosive material from Patna (Bihar). In order to develop this information, a team led by Inspector Mohan Chand Sharma was constituted under supervision of Sh. Sanjeev Yadav, ACP, Special Cell and informers were deployed and sources were developed in Delhi and Bihar area and in Nalanda (Bihar) also. He has further stated that during the development of the information, it was revealed that one Iftakhar resident of Nalanda (Bihar) having code name Abdulla has been deputed by Pakistan based Commander of Lashkar-e-Tayeba to supply consignment of arms, ammunitions and explosive material in order to cause 6 destructive activity on Republic Day. On 25.1.2007 at about 11.30 am, while he was present in the office of Special Cell, he received specific information that the said Abdulla would come at Bus Stop in front of Seelam Pur Metro Station at about 3.30 pm to deliver the consignment of arms, ammunitions and explosive material to another Lashkar-e-Tayeba militant and if a raid is conducted the said Abdulla could be overpowered with his associates and alongwith the above material. This information was reduced in writing and also discussed with the senior officers and as per their directions, a team was constituted and the raiding team duly equipped with arms and ammunitions, bullet proof jackets, IO Kits etc. left the office of Special Cell at about 2.30 pm and reached Seelam Pur Metro Station at about 3.00 pm where the informer met them at a pre-decided place. Efforts were made to join some public witnesses but none agreed and thereafter without wasting further time, all the members of the raiding team, were briefed and deployed around the Bus Stop in front of Seelam Pur Metro Station. He has further stated that at about 3.30 pm, a person was seen coming on foot from Shahdara side who was carrying one black colour shoulder bag on his right shoulder and informer identified him as Iftakhar @ Abdulla i.e. the accused. The accused waited at the Bus Stop for some time but as none turned up to meet him, he started 7 proceeding towards Shahdara side and on the signal given by Inspector Mohan Chand Sharma, accused was apprehended near the electric pole near Bus Stop in front of Seelam Pur Metro Station. Accused was asked about the reason of his presence there and the contents of his bag. The public persons gathered there and out of them, on being requested, two public persons whose names were revealed as Ashish and Bimlesh Kumar Tripathi volunteered to join the search. The bag was checked and it was found containing one steel box/container concealed beneath the layers of clothes. The steel box was opened and it was found containing three polythenes having dry fruits i.e. Kaju, Kishmish and Badaam in each polythene and under these three polythenes, one transparent polythene was also recovered containing explosive material in semi liquid form. On weighing, the explosive material was found to be 2.5 Kg. Beneath the steel box, one more polythene containing two electric detonators wrapped in cotton which was concealed under the layers of the clothes in the same bag, were also recovered. Out of the recovered explosive material, two samples of 10 grams each were taken out and kept in two plastic containers and thereafter the plastic containers were kept in cloth pullanda which were marked as S1 and S2 and sealed with the seal of RCL. The remaining 2.480 Kg explosive material alongwith 8 transparent polythene was kept in separate cloth pullanda and marked as Ex.A and sealed with the seal of RCL. The dry fruits polythenes were also kept in the same steel box which was kept in the same steel box and the steel box was kept in separate cloth pullanda and marked as Ex.B and sealed with the seal of RCL. The recovered electronic detonators were again wrapped in cotton and thereafter kept in plastic container which was kept in cloth pullanda and sealed with the seal of RCL and marked as Ex.C. The clothes were again kept in the same bag which was also sealed with the seal of cloth stripes and marked as Ex.D. Form CFSL was filled and seal after use was given to SI Rajinder Shehrawat and case property was taken into possession vide memo Ex.PW1/A. Accused Iftikhar was also formally interrogated at the spot who revealed that he was a Pak Trained Militant of Lashkar-e-Toiba and he had received the recovered consignment from one Hashim to deliver the same to another Lashkar-e-Toiba Militant Shabir at bus stop in front of Seelam Pur Metro Station and that he had come to Delhi by Train from Patna. Thereafter he prepared a rukka Ex.PW1/B and handed over the same to HC Sushil Kumar for registration of the case and further investigation of the case was handed over to ACP Sanjeev Kumar Yadav as per directions of senior officers. This witness has identified the case property i.e. explosive material 9 Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), sample of recovered explosive material as Ex.P3, a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes as Ex.P5 to be the same which were recovered from the accused. PW1 has further stated that he handed over the case property and the accused alongwith the documents prepared by him to ACP Sanjeev Kumar Yadav for further investigation. ACP Sanjeev Kumar Yadav inspected the site and prepared the site plan on his pointing out.
12. PW3 Sh. Ashish is a public witness who has stated that on 25.1.2007 at about 3.45 pm he was present in his RTV at Seelam Pur Metro Station and was taking tea. He heard some noise and saw that one person was running and some other persons were chasing him and that person was apprehended. He and some other persons inquired about the matter and one person informed that they were police officers from Special Cell and the person apprehended was a terrorist. He has also stated that the person who was apprehended was carrying a black colour bag and the Special Cell police asked from him about the contents of the bag on which he became nervous and started looking here and there. As that person did not reply about the contents of the bag, the Special Cell police removed the bag from the shoulder 10 of that person and requested the persons collected there to join in search of the bag. He and one Mr. Tripathi volunteered to join the search of the bag and in their presence one Sh. Ramesh Lamba, opened the bag which was found containing three black colour polythenes. One polythene was having kaju, another was having kishmish and third one was having badaam. One steel box was also there in the bag. PW3 Ashish has further stated that after opening the steel box, one black colour polythene was taken out from that steel box and that polythene was found containing some wet substance, the colour of which he did not remember and that substance was weighed and found to be 2½ kg. Two samples of 10 grams each were separated from the recovered substance and kept in two plastic dibbis. Thereafter both the dibbis were converted into pullanda and sealed with the seal of RCL. The remaining substance was kept in the same polythene and it was also converted into pullanda which was also sealed with seal of RCL. In the bag, there was one blue colour underwear in which two detonators were found kept in cotton. Those detonators were kept in two separate pullandas and sealed with the seal of RCL. The dry fruits which were recovered from the bag were also kept in one pullanda and sealed with the seal of RCL and seal after use was given to another police official Mr. Rajinder Shehrawat. He has identified his signature on seizure 11 memo Ex.PW1/C. This witness has also identified that apprehended person as accused Mohd. Iftakhar Alam. He has further stated that on interrogation, the accused told that he had brought the said substance from Bihar which was given to him by Hashim for delivery to Sabir at the said Metro Station. He has also stated that his statement was recorded by the police at the Metro Station. He has identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), sample of recovered explosive material as Ex.P3, a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes Ex.P5 to be the same which were recovered from the accused.
13. PW5 Sh. Bimlesh Kumar Tripathi, another public witness has stated that on 25.1.2007 at about 3.45 pm he was present at Seelam Pur Metro Station as he was working as security guard in Parshavnath Metro Mall which was under
construction at that time. He heard some noise and saw that one person was running and some other persons were chasing him.
The persons who were chasing, apprehended the person who was seen running. Many persons collected there and the person who was apprehended was revealed a terrorist and the persons who apprehended him were found to be police officers of Special 12 Cell. The accused was carrying a black colour bag and the police asked from him about the contents of the bag on which he became nervous and started looking here and there and did not reply about the contents of the bag. The Special Cell police removed the bag from the shoulder of the accused and on the request of Special Cell police he and one Mr. Ashish joined the search of the bag. In their presence one Special Cell police officer whose name was revealed as Ramesh Lamba, checked the bag which was found containing some clothes and under the clothes there was a steel box. PW5 has also stated that the said steel box was opened and found containing three polythenes, each polythene containing kaju, kishmish and badaam and one another white transparent polythene was recovered from under the above three polythenes which was found containing another transparent polythene containing some wet substance of black colour which was weighed and found to be 2½ kg. Two samples of 10 grams each were separated from the recovered substance and kept in two black colour plastic dibbis which were converted into pullanda and sealed with the seal of RCL. The remaining substance was kept in the same polythene and was also converted into pullanda which was also sealed with seal of RCL. PW5 has further stated that in the bag, there was one dark blue colour underwear in which there was one polythene which was found 13 containing two detonators kept in cotton. Those detonators were kept in two separate pullandas and sealed with the seal of RCL.
The dry fruits which were recovered from the bag were also kept in the same steel box and one pullanda was prepared and sealed with the seal of RCL and seal after use was given to SI Shehrawat. PW5 Bimlesh Kumar Tripathi has further stated that on interrogation, the accused disclosed that the said articles were given to him by one person at Patna, Bihar which he was to deliver to one Sabir at the said Metro Station. He has identified his signature at point D on seizure memo Ex.PW1/A. He has also identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), sample of recovered explosive material as Ex.P3, a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes Ex.P5 to be the same which were recovered from the accused.
14. PW-4 SI Rajinder Shehrawat who was also member of the raiding party and to whom the seal was given, has also deposed on identical lines as that of PW-1 SI Ramesh Lamba and corroborated and supported the testimony of SI Ramesh Lamba. He has identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and 14 steel box containing dry fruit polythenes as Ex.P2 (Colly), sample of recovered explosive material as Ex.P3, a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes Ex.P5 to be the same which were recovered from the accused.
15. PW-11 ACP Sanjeev Kumar Yadav is the IO of the case. He has stated that on 25.1.2007 further investigation of this case was marked to him and he reached the spot i.e. Bus Stop in front of Seelam Pur Metro Station where he found SI Ramesh Lamba alongwith other police officials present and he was handed over accused Mohd. Iftakhar Alam alongwith the documents prepared by SI Ramesh Lamba and the case property seized by him from accused Mohd. Iftakhar Alam. PW-11 has further stated that at the instance of SI Ramesh Lamba, he prepared the site plan Ex.PW11/A, arrested the accused vide arrest memo Ex.PW4/A, conducted his personal search vide memo Ex.PW4/B, recorded the statement of public witnesses and thereafter the raiding party alongwith the accused returned to the office of Special Cell where he deposited the case property alongwith copy of seizure memo, personal search and form CFSL in the malkhana. PW-11 ACP Sanjeev Kumar Yadav has further stated that he interrogated the accused in the office of Special Cell and recorded his disclosure statement Ex.PW4/C 15 and after getting the accused medically examined, produced him in the Court on the next day. He has further stated that on 28.1.2007 he alongwith other staff and accused left Delhi for Phulwari Shareef, Patna and reached there on 29.1.2007 where accused pointed out the house of his brother Hasnain. On 29.1.2007 the brother of the accused produced his election identity card regarding which his brother told that the accused had used the said identity card at the time of receiving money from Western Union, which was seized vide memo Ex.PW4/D and identity card is Ex.PA. On 30.1.2007 the accused led them to his in-laws house at Tata Nagar, Jamshedpur, Jharkhand and produced his passport Ex.PB which was seized in the presence one Nishad Ahmed vide memo Ex.PW4/E and thereafter they came back to Delhi. He has further stated that on 27.2.2007 two sealed parcels sealed with the seal of RCL alongwith CFSL form were sent to CFSL, Lodhi Road, New Delhi through HC Rustam Ahmed vide RC No.29/21 and later on, its report Ex.PW6/A was collected. He also wrote a letter to the Director, AML Compliance, South Asia for the verification of money transfer by Western Union Money Transfer and the report received from there was filed in the Court by him vide his application Ex.PW11/B and the report is Ex.PW11/C. He also obtained the sanction under Sec.7 of Explosive Substance Act to prosecute 16 the accused from DM/Divisional Commissioner of Delhi and under Sec.45 r/w Clause (i) of Sec. 2 of Unlawful Activities (Prevention) Act from the competent authority of Government of Delhi and the sanction orders are Ex.PW11/D and Ex.PW8/A respectively and after completion of investigation, he filed the chargesheet.
16. On behalf of prosecution, it has been contended by Sh. S.C. Sharma, Ld. Addl. PP that this is a case where apart from the police officials of Special Cell, two independent public witnesses have also deposed about the apprehension of the accused Mohd. Iftakhar Alam by the members of the raiding party and recovery of explosive substance and detonators from the possession of the accused apart from other items i.e. Dry fruits and clothes kept in a bag. It has been further contended that presence of these two public witnesses at the spot is duly established, they have identified the case property to be the same which was recovered from the accused in their presence at the spot and they had absolutely no motive to depose against the accused had he been an innocent person. Ld. Addl. PP has further contended that accused is a resident of Nalanda, Bihar and the officials of Special Cell hardly had any motive to falsely implicate him in this case as they were not even knowing him personally and had no enmity with him. Ld. Addl. PP has further 17 contended that the defence of the accused about his being taken away by SI Ramesh Lamba from Jamshed Pur is not supported by any documentary evidence and in the circumstances, the Court should believe the testimony of members of the raiding party and the public witnesses and convict the accused. It has also been contended that the colour of the explosive substance was not mentioned either in the rukka or in the seizure memo and if the public witness happened to describe that as of black colour semi-liquid and CFSL result described the same as brownish putty type, that itself is no ground to disbelieve the testimony of prosecution witnesses as it has come in the statement of all the witnesses that the substance recovered was in semi-liquid form and in the CFSL result, it is also mentioned as putty type and everybody had his own way of describing the colour and state of the substance i.e. Liquid, semi-liquid, putty type etc. but that itself does not cast any doubt about the substance as they identified Ex.P1 and the sample Ex.P3 to be the same which was recovered from the accused Mohd. Iftakhar Alam.
17. On behalf of accused, it has been submitted by Sh. K. Ansari, Advocate that in the instant case, the public witnesses joined by the prosecution are stock witnesses and there are material contradictions in the statement of prosecution witnesses regarding the colour of the substance and its state at the time of 18 recovery i.e. Semi-liquid or putty type. It has also been contended that seal has not been handed over to the public witness but to one police officer namely SI Rajinder Shehrawat and that could only be with a view to tamper with the case property. It has also been contended that PW-3 Sh. Ashish could not remember the colour of the substance and he mentioned that substance was in black colour polythene but on opening the Court, it was found in transparent polythene and change of colour of polythene reflects tampering of the case property. As per PW-6 Sh. A. Dey, Principal Scientific Officer-cum-Assistant Chemical Examiner, if any substance is kept in any air tight container, then it will not change its shape and colour and it has come in the statement of PW-1 SI Ramesh Lamba that the substance was kept in air tight container. The CFSL result shows that the parcel contained lump of brown colour putty type material which again is a material contradiction. Similarly PW-4 SI Rajinder Shehrawat admitted that Ex.P1 and P3 were not black in colour and also not in semi-liquid form on the date of his examination and he was confronted with his statement under Sec. 161 CrPC Ex.PW4/DA where he stated at portion A to A that from a transparent polythene, black colour explosive substance was recovered. Ld. Defence counsel has further contended that as per prosecution, secret information was 19 received at 11.30 am but the raiding party left for the spot at 2.30 pm. The distance between the office of Special Cell and spot being about 16 kilometers, they could have left the office so late only when the accused was already with them otherwise they should have taken their position well in advance as accused could have turned up early also which also makes the prosecution case as only a show managed. Ld. Defence counsel has further contended that PW-5 Sh. Bimlesh Kumar Tripathi was a security guard who claimed the gate of Paras Nath Mall to be about 10 to 15 meters from the main entry gate of Seelam Pur Metro Station which is contrary to the version of PW-3 Sh. Ashish who stated that one boundary wall of Shopping Complex exists which does not have any gate on the side of Metro Station and if there was no gate towards Metro Station side, then how PW-5 Sh. Bimlesh Kumar Tripathi could be posted as Guard there and the witnesses are only stock witnesses as PW-5 was not asked to give the copy of his identity card to prove his employment with the Mall on the relevant date and time. Ld. Defence counsel has further contended that accused was apprehended from Gangotri Hospital, Jamshed Pur on 21.1.2007 by SI Ramesh Lamba and his team and brought to Delhi on 23.1.2007 by Hawarah-Delhi Rajdhani Express. Although SI Ramesh Lamba admitted his visit to Patna, Bihar about a week or 20 10 days prior to this incident and also his visit to Jamshed Pur but Pw-11 ACP Sanjeev Kumar Yadav claimed that SI Ramesh Lamba did not go to Bihar in connection with this case and that prior to apprehension of the accused, no team was sent to Patna or Nalanda in Bihar and this concealment of visit of SI Ramesh Lamba to Bihar by the IO PW-11 ACP Sanjeev Kumar Yadav is deliberate and strengthen the defence of the accused. Ld. Defence counsel has also pointed out the discrepancies regarding the time when the team members left the spot or whether SI Ramesh Lamba left the spot earlier and contended that the prosecution has failed to establish its case against the accused. Rather accused has been able to prove his innocence and false implication with planted recovery and tampering with case property, hence he be acquitted.
18. I have carefully gone through the record and considered the rival contentions. First of all, I deal with the contention of ld. Defence counsel regarding tampering with the case property. In this regard, the rukka Ex.PW1/B and the seizure memo Ex.PW1/A state that the explosive substance in semi-liquid form contained in a transparent polythene was recovered. The colour of the substance is not mentioned by PW-1 SI Ramesh Lamba. PW-4 SI Rajinder Shehrawat, in his statement Ex.PW4/DA, mentioned that from a transparent 21 polythene, black colour explosive substance was recovered, which statement was recorded at the spot, it only leads to the conclusion that the IO has recorded the statement of witnesses as per version given by them without adding or suggesting anything to the witness. So far as contention of ld. Defence counsel that if the substance is kept in a air tight container, then as per CFSL Expert, its colour and shape cannot change, it cannot be ignored by the Court that when the substance was checked, two samples were drawn, the case property was weighed, sealed and seized, at that time it was not in air tight container and was exposed to normal air, temperature and pressure. In the CFSL result Ex.PW6/A, it is mentioned that at the time of opening the container, the seal was intact and tallied with the specimen seal. Not giving of seal to the public witness is not fatal to the case of prosecution for the reason that the person apprehended in this case was claimed to be a terrorist and heavy quantity of explosive substance alongwith detonators was recovered from him. In such type of cases, showing courage to join the search of bag and recovery itself could have raised reasonable apprehension in the mind of public witnesses about their personal safety. In such circumstance, if seal is handed over to the public witness, the psychological effect on the mind of witness would be to consider the seal like keeping 'live bomb' 22 which could risk his own life. Taking into consideration the nature of the offence, the social strata of the public witness, the seal could be safe in the custody of SI Rajinder Singh, who though member of the raiding party, had hardly any animus against the accused. Even if it is assumed for the sake of arguments that the case property had been tampered with in this case by the police officers of Special Cell and that is why the discrepancies are appearing regarding the colour and state of the recovered explosive substance, the tampering could have been done by the police officers to preserve the explosive substance in the same shape and colour in which it was recovered and in that situation, these discrepancies could not have occurred. Even as per ld. Defence counsel the tampering was done with a view to falsely implicate the accused and in that circumstance obviously tampering could not have been done by them to help the accused to seek acquittal on the ground that colour and state of the recovered substance changed when being produced in the Court for identification by the witnesses. If the contention of ld. Defence counsel regarding tampering of the case property is accepted, then shape and colour of explosive substance would have remained unchanged till it was produced in the Court for the purpose of evidence.
19. Next question is whether the accused was brought 23 from Jamshed Pur on 21.7.2007 by SI Ramesh Lamba and then shown to have been arrested from Bus Stope, Seelam Pur Metro Station on 25.1.2007. In this regard, it is relevant to mention that accused has failed to summon any record from Gangotri Hospital that his wife was admitted for delivery there and he was present within the vicinity of the hospital and was taking care of his wife. In normal circumstances, if a person goes missing from near the hospital, the wife or other family relations would make efforts to search him by contacting on his mobile phone or with the relations and if still not traced out, then report the matter to the police that the person had gone missing from Gangotri Hospital. No such evidence has come on record. The contention of ld. Defence counsel that SI Ramesh Lamba admits his visit to Jamshed Pur but ACP Sanjeev Kumar Yadav tried to hide it, has also not been correctly interpreted as ACP Sanjeev Kumar Yadav has specifically stated that SI Ramesh Lamba has not gone in connection with this case and SI Ramesh Lamba had nowhere stated that he had gone to Nalanda and Jamshed Pur in connection with this case though he admits his visits to these places. Hence, the accused cannot take any benefit from the admission of SI Ramesh Lamba that he had gone to Bihar a week or 10 days prior to this case. Another contention of ld. Defence counsel that it was a stage managed show is falsified from the 24 statement of two public witnesses who happened to witness the accused being chased by police officers of Special Cell and when they gathered to inquire as to what was happened, they came to know about the entire matter and when requested, agreed to join the recovery proceedings. How they happened to join the proceedings is also duly explained by the public witnesses as they saw accused being chased by Special Cell sleuths and resultant commotion drew their attention. When they inquired about the matter, on coming to know that accused was a terrorist apprehended by the Special Cell Officer who also wanted some public person to witness the search of the bag which accused was carrying on his shoulder, they volunteered. Both the public witnesses had given the circumstances in which they happened to be present at the time of apprehension of accused and search of his bag. None of them can be termed as stock witnesses as they never appeared as witness in any other case and PW-3 Ashish has stated that he was driving RTV No.DL-1V-A-0064 which ply on the route from Shiv Vihar, Karawal Nagar to Seelam Pur Metro Station and at that time, he was present in his RTV and taking tea and when he joined the proceedings or search, the RTV was taken by some other driver and PW-5 has stated that he was working as Security Guard in Parshavnath Metro Mall which was under construction at that time and present there at 25 the time of apprehension of the accused.
20. The contention of ld. Defence counsel that these witnesses are not trustworthy as Security Guard is not supposed to leave his place of duty or that copy of his identity card was not taken by the officers of Special Cell, is no ground to disbelieve the public witnesses for the simple reason that first of all it is difficult for police party to find independent public witnesses and if fortunately they happen to find public witnesses, during trial often it is noticed that public witnesses prefer to turn hostile under muscle/money power. Whenever a public witness is associated, he has to leave the work place/work in hand to discharge duty as good citizen.
21. So far as certain discrepancies regarding the colour of the polythene or of the substance is concerned, both these witnesses have identified the case property i.e. explosive material Ex.P1, three polythenes containing Kishmish, Kaju and badaam and steel box containing dry fruit polythenes as Ex.P2 (Colly), a white colour plastic dibbi containing two detonators wrapped in cotton as Ex.P4/1-2, the bag and the clothes as Ex.P5 to be the same which were recovered from the bag of the accused. When the witnesses appear in the Court after lapse of certain time, they may not be able to recollect the sequence of events which had taken place unexpectedly long before. A public witness hardly 26 gets any ooportunity to see the explosive substance and detonators with his own eyes as generally such news are read by them in newspaper only. There was every possibility for them to confuse about the colour of the polythene or colour of the substance but after seeing, correctly identified. So far as the occurrence is concerned, they have deposed in a natural and truthful manner as to what they had seen when accused was apprehended by the police officers of Special Cell. These minor discrepancies cannot be a ground to disbelieve their testimony especially when they had shown the courage to come forward and join the search of the bag knowing that the person apprehended was claimed to be a terrorist. In the case Zamir Ahmed Vs. The State 1996 Cri.L.J. 2354 while discussing the provisions 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 witnessed 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 his own perception and in proportion to his intelligence power of observation."
22. The discrepancies pointed out by ld. Defence 27 counsel are insignificant and bound to occur due to lapse of time especially when the witness is not tutored. As the so called discrepancies do not go to the root of the case, the accused cnnot derive any benefit out of that. In the case Bharuda Broginbhai Harjibhai vs. State of Gujrat, AIR 1983 SC 753 it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving at this conclusion :-
"By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
3) The powers of observance differ from person to person, what one may notice, another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
4) By and large people cannot accurately recall a conversation and reproduce the very words used by them on heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
5) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess-work at spur of moment, at the time of interrogation and one cannot expect 28 people make very precise or reliable estimates in such matters. Again, it depends upon the time-sense of individuals which varies from person to person.
6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix-up facts, get confused regarding sequence of events, or fill up details of imagination at the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him, perhaps it is a sort of psychological moment."
23. In another case State of U.P. vs. M.K. Anthony, AIR 1985 SC 48 following guidelines have been laid down by the Apex Court for the appraisal of the evidence :
"While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to 29 the root of the matter, would not ordinarily permit rejection of evidence as a whole."
Their Lordships further observed :
"Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross-examination is an unequal dual between the rustic and refined lawyer."
24. In the case law reported as Ramesh Vs. State 1986, CR.L.J. 1101, it was held as under:
"In appreciating oral evidence, the question in each case is whether the evidence is truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes, where the witness is found to be a untruthful on material facts that the end of the matter. Where the witness is found to be partly truthful or to spring from ........... tainted sources, the court may take the prosecution of seeking some corroboration, adequate and reasonable to meet the demands of the situation."
25. Reverting to the facts of the present case, testing the testimony of two public witnesses on the touch stone of basic human probabilities, I find that intrinsic worth of their testimony remained unchallenged during cross examination and their version is natural, truthful and inspiring confidence. So far as testimony of police officials i.e. PW-1 SI Ramesh Lamba, PW-4 SI Rajinder Shehrawat and PW-11 ACP Sanjeev Kumar Yadav, who apprehended accused from Seelam Pur Metro Station is 30 concerned, there is no reason to disbelieve their testimony as they were only discharging their duties without any animus towards the accused who was a total stranger to them in Delhi. In Catena of judgments, it has been held that testimony of police officials cannot be disbelieved merely for the reason that they may be interested in success of their case. In the case State of Kerala vs. M.M. Mathew and another, AIR 1978 SC 1571 it was held :-
"The evidence of the IO's cannot be branded as highly interested on ground that they want that the accused are convicted. Such a presumption runs counter to the well-recognised principle that prima- facie 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."
26. In another case Sanjay Vs. NCT (2001) 3 SCC 190, the Apex court had observed that the mere fact that no independent witness was associated with recoveries is not a ground and that the investigation officer's evidence need not always be disbelieved and that of course, closer scrutiny of evidence is what is required.
27. In the present case also as PW-1 SI Ramesh Lamba, PW-2 SI Rajinder Shehrawat and PW-11 ACP Sanjeev Kumar Yadav had absolutely no reason to plant the explosive and detonators on the accused to falsely implicate in this case. It has 31 already been observed that version of the accused that he was brought by SI Ramesh Lamba from Gangotri Hospital in Jamshed Pur on 21.1.2007 is not even probable as the public witnesses themselves had seen the accused being chased and apprehended by the police officer of Special Cell. Secondly the arrest memo Ex.PW4/A shows the date and time of arrest as 25.1.2007 at 9.00 pm and intimation of his arrest has been given Sh. Nishat Ahmed, brother-in-law on phone No.9835790808 which further shows that accused had been apprehended and arrested only on 25.1.2007 from Bus Stop in front of Seelam Pur Metro Station and not brought on 21.1.2007 from Jamshed Pur as claimed by him. The testimony of two public witnesses i.e. PW-3 Sh. Ashish and PW-5 Sh. Bimlesh Kumar Tripathi and PW-1 SI Ramesh Lamba, PW-4 SI Rajinder Shehrawat and PW- 11 ACP Sanjeev Kumar Yadav is sufficient to prove that rexin bag of the accused was found containing explosive substance weighing 2.5 kg and two electronic detonators apart from dry fruits and clothes. The CFSL report Ex.PW6/A also shows that high explosive mixture and the two live electric detonators are the explosive substance as defined in the Explosive Substance Act, 1908. To avoid detection and ensure that it is not unnecessarily checked by opening it during security check on Republic Day eve, the explosive substance and detonators were 32 kept under the dry fruits and clothes in a bag, is sufficient to prove that accused had carried these explosive substance for an unlawful object. It is proved by prosecution that accused came to Metro Station to deliver this consignment to another LeT Militant who did not turn up and after waiting for him, the accused was leaving the spot when chased and apprehended. The very fact that accused was waiting for someone to turn up to receive the consignment is sufficient to prove that it was meant to enable another person to endanger human life or cause serious injury.
28. In view of above discussion, I am of the considered view that the prosecution has been able to prove beyond reasonable doubt the recovery of explosive substance Ex.P1 and P3 and two electronic detonators Ex.P4/1 and 2 from accused Mohd. Iftakhar Alam being carried by him for an unlawful object. Hence, accused Mohd. Iftakhar Alam is held guilty for the offence punishable under Sec.4 and 5 of Explosive Substance Act and convicted accordingly.
Announced in the open Court 20.4.2009 ( PRATIBHA RANI ) ASJ-01(Central)/Delhi 33 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE-01(CENTRAL), TIS HAZARI COURTS, DELHI SC No.14/07 State Vs. Mohd. Iftakhar Alam @ Abdulla @ Khalil, S/o Sh. Mohd. Inamul Haque, R/o Village & P.O. Mehmooda, PS Khudaganj, Distt. Nalanda, Bihar.
34 FIR No.4/07
U/S : 4 and 5 of Explosive Substances Act PS : Special Cell Arguments heard on : 22.4.09 Order pronounced on : 22.4.09 *** ORDER ON SENTENCE I have heard the convict Mohd. Iftakhar Alam and his counsel Sh. K. Ansari, Advocate on the point of sentence. Sh. S.C. Sharma, ld. Addl. PP has also made submissions on behalf of State
2. On behalf of State, it has been contended that exemplary punishment should be given to the convict Mohd. Iftakhar Alam as he was found in possession of 2.5 kg explosive substance and two live detonators which could be used for causing huge damage to the life and property.
3. On behalf of convict Mohd. Iftakhar Alam, it has been submitted that convict is a Science Graduate. He was good in studies and aspired to become a Doctor but could not qualify the entrance examination. It has also been contended that convict was earlier earning his livelihood by giving tuitions. He has 80 years old father to support and he has a young wife and a female child who was born in January, 2007 and he has seen his 35 daughter only once. It is submitted by the convict that a chance be given to him to reform himself and join the main stream and be a good citizen. Ld. Counsel for convict has prayed that a lenient view may be taken and convict be sentenced to the period already undergone by him.
4. I have considered the submissions made on behalf of the convict as well as on behalf of State. In the instant case, the convict was found in possession of 2.5 kg explosive substance and two live detonators. Being a Science Graduate, the convict must be aware of the nature of the substance he was carrying and the use to which it could be put by the persons to whom it was to be delivered. The act of the convict is such that it requires severe punishment as the explosive substance was intended to be used for causing damage to the life and property of innocent persons.
5. Considering the facts and circumstances of the case and submissions made on behalf of the convict, I hereby sentence the convict Mohd. Iftakhar Alam to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- for the offence punishable under Sec.4 of Explosive Substance Act. In default of payment of fine, he shall undergo simple imprisonment for one month. Convict is further sentenced to undergo rigorous imprisonment for five years and to pay a fine 36 of Rs.1000/- for the offence punishable under Sec.5 of Explosive Substance Act. In default of payment of fine, he shall undergo simple imprisonment for one month. Both the sentences shall run concurrently and the period of detention already undergone during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC. Case property shall be confiscated to the State after the expiry of period of appeal, if any. File be consigned to Record Room.
Announced in the open Court 22.4.2009 ( PRATIBHA RANI ) ASJ-01 (Central)/Delhi 37