Delhi District Court
State vs . Imran Ahmed & Anr./Page 1 Of 61 Of Order ... on 12 May, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
SC NO: 32/2007
FIR NO : 89/06
PS SPL. CELL
U/S 121/121A/122 r/w 120B IPC
and U/s 17/18 /20/of Unlawful Activities Act
and Section 5 of Explosive Substances Act
JUDGMENT
1 Sl. No. of the Case 32/2007 2 Date of Committal to Sessions 08/03/07 3 Received by this court on transfer 20.04.2011 4 Name of the complainant STATE 5 Date of commission of offence 16.11.2006 6 Name of accused, parentage and address 1.Imran Ahmed Kirmani S/o Sh. Ghulam Rasool Kirmani R/o Village Neelpora Magam, Handwara, Distt. Kupuwara, J&K 2.Ghulam Rasool Bafanda S/o Sh.Ghulam Nabi R/o Mohalla Shalapora, Sopore, Distt. Baramullah, J&K. 7 Offence complained of U/S 121/121A/122 r/w 120B IPC and U/s 17/18/20/23 of Unlawful Activities Act and Section 5 of Explosive Substances Act 8 Offence charged of U/S 121/121A/122 r/w 120B IPC and U/s 17/18/20 of Unlawful Activities Act and Section 5 of Explosive Substances Act 8 Plea of guilt Pleaded not guilty 9 Final order ACQUITTED 10 Date on which order reserved 06/05/11 11 Date on which order announced 12/05/11
State Vs. Imran Ahmed & Anr./Page 1 of 61 of order Dt. 12.05.2011 2 BRIEF REASONS FOR DECISION
1. Case of the prosecution is that on 16.11.06 SI Rajender Singh Sehrawat sent a rukka Ex. PW 2/B to PS Special Cell for registration of FIR under Offences 121, 121A, 122, 123,120B IPC read with Section 4, 5 of Explosive Substances Act apart from Section 17,18,20 & 23 of Unlawful Activities Prevention Act, 2004. As per text of the rukka that a secret information was received through Central Intelligence Agency that a militant code named Khalid belonging to Banned Militant Organisation Lakshar ATiaba (LeT) has set up a base in Delhi and is procuring and diverting funds collected through Hawala Channels for the purpose of terrorism. The special cell formulated a team under leadership of Inspector Mohan Chand Sharma and under supervision of ACP Sanjeev Kumar Yadav. According to the inputs obtained from contacts, informers etc. It was revealed that actual name of Khalid is Altaf and his brother Imran is residing in Dwaraka. Imran is collecting and transferring funds for terrorism under instructions of Altaf @ Khalid .
State Vs. Imran Ahmed & Anr./Page 2 of 61 of order Dt. 12.05.2011 3
2. On 16.11.2006 a specific information was received at 3:30 PM from a secret informer Imran would be coming to Shopping Complex, Sector6, Dwarka to hand over a consignment of funds for the purpose of terrorism to one Gulam Rasool at 6:30 PM. A DD Entry Mark A was reduced into writing and upon discussion with senior officers a team consisting of Inspector Mohan Chand Sharma, Inspector Sanjay Dutt, Inspector Subhash Vats, Inspector Badrish Dutt, SI Rahul Kumar, SI Ramesh Lamba, SI Vinay Tyagi, SI Ravinder Tyagi, SI Kailash, ASI Sahjahan, ASI Charan Singh, HC Manoj , HC Sanjeev, HC Satender Kumar, HC Bijender Singh, HC Bachhu Singh, Ct. Basant, Ct, Shiv Mangal, Ct. Amar Singh, Ct. Ran Singh, was formed. Equipping themselves with arms , ammunitions and bullet proof jackets apart from IO Kit team left the Special Cell in four private cars and two twowheelers at around 4:30 PM towards Dwaraka. The team is shown to have reached Dwarka Sector 6 Shopping Complex at 5:30 PM. He asked 78 passersby to join the team but they all left without disclosing their names and address. The team members State Vs. Imran Ahmed & Anr./Page 3 of 61 of order Dt. 12.05.2011 4 took position near Corporation Bank ATM where at around 6:45 PM a person carrying a black rexine bag on his shoulder came from Sports Complex, Sector 11 side. He was referred to as Imran by the secret informer and he waited for other associated to come. After around 15 minutes of his arrival another person carrying a red and blue coloured bag on his right shoulder approached Imran . They talked to each other for some time and thereafter Imran took out a bundle wrapped in printed orange colour plastic polythene and handed over the same to the other person. At that juncture at around 7:05 PM SI Rajender Singh Sehrawat alongwith SI Ravinder Tyagi and other members of the team overpowered Imran and his associate whose name was disclosed to be Gulam Rasool.
3. Police team identified itself to them and on checking the bundle in the polythene it was found to be containing a sum of Rs. 4.5 lacs containing wads of Rs.1000/, 500/ and 100/ denomination. Gulam could not give satisfactory reply about the currency. Thorough search of his bag containing a print State Vs. Imran Ahmed & Anr./Page 4 of 61 of order Dt. 12.05.2011 5 "Runaway" was conducted. It was found containing a khakhi colour cardboard box underneath the cloth. Upon being opened it was found containing black and white granulated explosive material in transparent polythene. Matter was brought to the notice of ACP. The explosive weighed 1.650 kg. Two samples of 10 gm each were taken out of the same and were separately sealed. The bag was also found containing a white cardboard box containing two green coloured ABCD Timers wrapped in a plastic sheet with wires switches containing endorsement ABCD and OK. They were also seized. The bag also contained certain clothes.
4. The other bag carried by Imran was found empty on search. The cash was also seized and CFSL form was filled. The seizure memo is Ex. PW 2/A. In this backdrop the rukka was sent and the accused Imran was placed under arrest vide arrest memo Ex. PW 3/2 and personal search Ex. PW 3/4 Accused Gulam was placed under arrest vide arrest memo Ex. PW 3/1 and personal search Ex. PW 3/3. Disclosure statements of accused Imran is Ex.
State Vs. Imran Ahmed & Anr./Page 5 of 61 of order Dt. 12.05.2011 6 PW 3/6 and that of Gulam is Ex. PW 3/5. Site plan Ex. PW 3/9 was also prepared. They were served with notice Section 25 of UAPA Act Ex. PW 9/B & C.
5. Requisite information was sent to Principal Secretary Home Govt of Delhi for seeking request for retention of the amount. Arrest warrants qua Altaf @ khalid were obtained. Seized articles were sent to CFSL Delhi and charge sheet was filed in the court of Ld. CMM Delhi.
6. Upon committal of the case, charge was framed on 2.8.07 against both the accused persons by Ld. Predecessor of this Court for commission of offences U/S 121/121A/122 r/w 120B IPC and U/s 17/18 /20/of Unlawful Activities (Prevention) Act and Section 5 of Explosive Substances Act .
7. To prove its case prosecution examined nine witnesses in all. Thereafter statement of accused U/s 313 Cr.P.C. was recorded. Accused also examined two witnesses in their defence.
8. I have heard Ld. Addl. PP Sh. G.S.Guraya for State and Ld. Counsel Sh.
State Vs. Imran Ahmed & Anr./Page 6 of 61 of order Dt. 12.05.2011 7 Shashi Bharat Bhushan advocate for both the accused. I have also carefully perused the entire file.
9. First witness examined by the prosecution is ASI Kapoor Singh, he was Duty Officer who recorded the FIR .
10.PW2 SI Rajender Singh Sherawat, author of the ruqqa who arrested the accused persons as detailed supra. He identified the case property in the Court namely sealed pulinda Ex.1 containing black and white granulated substances Ex.P1, transparent polythene Ex.P2 and X, khaki board Ex.P3. Ex.2 is another sealed parcel which contained timer Ex.P4 to P5, white colour box Ex.P6 and covering of the packet Ex.P7. Another pulinda Ex.3 contained red and blue bags Ex.P6, its contents as Ex.P7. Another pulinda Ex.4 contained black colour Yuan and Chane mark bag Ex.P9. Another pulinda Ex.5 contained wads of currency Ex.P10.
State Vs. Imran Ahmed & Anr./Page 7 of 61 of order Dt. 12.05.2011 8
11.PW3 is SI Ramesh Lamba who was the part of the team which arrested accused persons. He deposed on the lines of PW2 and as per prosecution case.
12.PW4 is HC Manoj Kumar , he too was the part of the team which arrested the accused persons.
13.PW5 is Sh. N.B.Bardhan , Baillistic Expert with CFSL. He exhibited his report as PW5/1 as per which two parcels containing 10gm powdery material was explosive substance and another parcel containing two ABCD timers which are component of improvise explosive device.
14.PW6 is SI Ravinder Tyagi who was the part of the Spl. Team constituted to arrest the accused. He deposed on the lines of the prosecution story.
15.PW7 is Sh. K.R.Mehandiratta who was Dy. Secretary Home on 9.2.2007. He exhibited the sanction accorded under Section 196 Cr.P.C and Section 45 of UAP Act as Ex.PW7/A and B.
16.PW8 is Ms. Naini Jayasaane who was working as District Magistrate / State Vs. Imran Ahmed & Anr./Page 8 of 61 of order Dt. 12.05.2011 9 Divisional Commissioner and had accorded sanction for prosecution against the accused persons after perusing the case file including seizure memo, site plan, draft chargesheet etc. She proved her sanction order as Ex.PW8/A.
17.PW9 is Sanjeev Kumar Yadav ACP who was posted as ACP Spl. Cell and is IO of this case. He deposed on the lines of the prosecution story and took over the investigation after both the accused were nabbed and were found possessing explosive substances. He gave details of the steps taken by him as Investigating Officer of the case.
18.In his separate 313 Cr.P.C. statement, accused Imran denied the allegations leveled against him and stated that sanction for prosecution was granted without application of mind. His signatures were obtained on blank pieces of paper. He was arrested from his flat alongwith the money which belongs to him. His coaccused Gulam Rasool was arrested from the exist gate of Palam Domestic Airport as 5.00Pm and explosive substances were planted upon them. However, he examined himself as DW1.
State Vs. Imran Ahmed & Anr./Page 9 of 61 of order Dt. 12.05.2011 10
19.In his deposition as DW1, he stated that he is a resident of Dist. Kupwara in Srinagar and is student. He studied in various institutes throughout the country but was picked up by official of Spl. Cell on 15.11.06 from his Dwarka House. He had in his house Rs.4.50 lacs which was seized by the police even though he received Rs.4 lacs from his father Sh. Gulam Rasool Kirmani and had borrowed a sum of Rs.50,000/ from his friend . Since he could not return this borrowed money back to his friend, he is also facing 420 RPC complaint in the Court of Ld. CJM , Sopore , J&K. The Agreement to Sell qua sale of land is mark DW1/A while its English transmission is mark DW1/B, DW1/C. State Vs. Imran Ahmed & Anr./Page 10 of 61 of order Dt. 12.05.2011 11
20.DW2 is Sh. Gulam Rasool, father of accused Imran. He stated that his son is a student and has studied in Punjab and other parts of country. He asked for Rs.4 lacs from him in 2006 to purchase a one room set in Delhi where he was working temporarily with M/s Star Aviation. Witness had sold one Canal 15 Marla Plot and a thatchment house to one Sh. Mohd. Shafi . His son had also borrowed Rs.50,000/ from his friend in Sopore. He exhibited the agreement to sell and cash receipt as Ex.DW2/A and B respectively.
21.While opening his argument, LD. Addl. PP argued that both the accused deserve to be convicted under all the offences charged in so far as they were caught red handed alongwith huge cash of Rs.4.50 lacs obtained through Hawala Transaction for the purpose of committing terrorism related actitivies. It is also submitted that both the accused were found possessing 1.60 kg of explosive substance apart form timers for committing terror activities by making improvised explosive devices. It is further submitted on behalf of the state that both the accused are members of banned terrorist organisation State Vs. Imran Ahmed & Anr./Page 11 of 61 of order Dt. 12.05.2011 12 LashkerETaiba (hereinafter referred to as LeT), as per item no.17 in the Schedule attached to UAPAct and both were unable to explain about the currency seized from them. It is submitted that the defence plea taken by them remained unsubstantiated as best evidence qua proving the sale transaction were not produced in the Court.
22.As far as the evidence qua the claim of the prosecution that both the accused are members of banned Terrorist Organisation LeT ,the offence is covered U/s 20 of UAP Act.
23.Section 20 of The Unlawful Activities (Prevention) Act, 1967 runs as under:
Punishment for being member of terrorist gang or organisationAny person who is member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
24.Attention of the Court is drawn to deposition of PW3 SI Ramesh Lamba wherein the witness stated that secret information was received by the Spl.
State Vs. Imran Ahmed & Anr./Page 12 of 61 of order Dt. 12.05.2011 13 Cell through Central Intelligence Agency that LeT militant code name Khalid has set up a base in Delhi and is procuring and diverting terrorist fund through Hawala. Ld. APP has also referred to Section 46 of UAP Act and same has been reproduced herein under for ready reference.
25.Section 46 of The Unlawful Activities (Prevention Act) 1967 runs as under:
46.Admissibility of evidence collected through the interception of communications - Notwithstanding anything contained in the Indian Evidence Act,1872 (1 of 1872) or any other law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under the provisions of the Indian Telegraph Act, 1885 (13 of 1885) or the Information Technology Act, 2000 (21 of 2000) or any other law for the time being in force, shall be admissible as evidence against the accused in the court during the trial of a case.
Provided that the contents of any wire, electronic or oral communication intercepted or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court unless each accused has been furnished with a copy of the order of the competent authority under the aforesaid law, under which the interception was directed, not less than ten State Vs. Imran Ahmed & Anr./Page 13 of 61 of order Dt. 12.05.2011 14 days before trial, hearing or proceedings.
Provided further that the period of ten days may be waived by the Judge trying the matter, if he comes to the conclusion that it was not possible to furnish the accused with such order ten days before the trial, hearing or proceeding and that the accused shall not be prejudiced by the delay in receiving such order.
(emphasis supplied by me)
26.On specific query, LD. APP concedes that no specific evidence, either oral or documentary or in any electronic form has been placed , proved or relied on record which could show that both or either of the accused are members of LeT or had any proximate or otherwise nexus with this organisation. Plain reading of the above statutory provision that it only saves application of Evidence Act on the "evidence collected" through interception of communication . It is not even the case of prosecution that either of the accused person was carrying any mobile phone or the alleged non chargesheeted accused namely Altaf @Khalid had any mobile phone or internet communication with each other or any other person. In the absence of absolutely any iota of evidence whatsoever in this regard , no recourse to State Vs. Imran Ahmed & Anr./Page 14 of 61 of order Dt. 12.05.2011 15 Section 46 of UAP Act can be made in the manner sought.
27.Just because a handful of police official of Spl. Cell of Delhi Police have given a tag of LeT Terrorists to 2 citizens of our country, this does not become a conclusive proof of their being terrorists. No doubt that LeT has been notified as a terrorist organisation which has aim an objective of destablising our country but when a citizen of our country is accused of being member of such a terrorist organisation, then the agency making such acquisition is supposed to have substantive pieces of evidence, howsoever, ever ill gotten those evidences may be. But absolute lack even an iota of evidence is not perceived by Section 46 of UAP Act. As such as far as charge U/s 20 of UAP Act qua being a member of Terrorist Organisation , it can be safely concluded that the prosecution case is wholly devoid of any material / merit in this regard.
28.As regards charge U/s 17 & 18 of UAP Act qua raising of funds for terror related activities and conspiracy or attempt to commit terrorist act , same are corelated with the alleged recovery of cash and explosive substances from State Vs. Imran Ahmed & Anr./Page 15 of 61 of order Dt. 12.05.2011 16 the custody of both the accused. As such they shall be dealt with separately after dealing with the merits of the alleged recovery. However, for the sake of ready reference Section 17 and 18 of Unlawful Activities (Prevention) Act are reproduced herein under:
17.Punishment for raising funds for terrorist act - Whoever , in India or in a foreign country, directly or indirectly, raises or collects funds or provides funds to any person or persons or attempts to provide funds to any person or persons, knowing that such funds are likely to be used by such person or persons to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such 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.
18. Punishment for conspiracy , etc. Whoever conspires or attempts to commit or advocates, abets advises or (incites, directs or knowingly facilitates) 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.
29.As far as charges U/s 121, 121A and 122 IPC are concerned, they are reproduced hereunder for ready reference :
State Vs. Imran Ahmed & Anr./Page 16 of 61 of order Dt. 12.05.2011 17 Section 121 IPC: 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.
Section 121A IPC: Conspiracy to commit offences punishable by Section 121 Whoever within or without India conspires to commit any of the offences punishable by Section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government , shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten y ears and shall also be liable to fine.
Section 122 IPC: 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.
30.Plain reading of above statutory provision shows that the basic essential which is required for proving a charge under them is that "the act of the accused" were aimed at waging war against the country. As far as the State Vs. Imran Ahmed & Anr./Page 17 of 61 of order Dt. 12.05.2011 18 principal on as to which act can be interpreted as an act of waging war against the country, recourse has to be taken to settled legal propositions by Superior Court in this regard.
31.In case titled "Arup Bhuyan Vs. State of Asam", 2011 (1) JCC 416 while hearing appeal of a convict under Section 3 (5) of TADA for his being a member of terrorist organisation Hon'ble Supreme Court discussed the Doctrine Of Guilty by Association. It relied on case titled "ELFBRANDT Vs. RUSSELL", 384 US 17 (1966) wherein while rejecting the Doctrine of Guilt by Association it was ruled that mere membership of a bad organisation will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence . Hon'ble Supreme Court also relied Constitution Bench Judgment of Supreme Court in "Kedar Nath Vs. State of Bihar", AIR 1962 SCC 955 . Another judgment relied is "United States Vs. Eugene Frank Robel"
, 389 US 258 wherein US Supreme Court held that a member of a State Vs. Imran Ahmed & Anr./Page 18 of 61 of order Dt. 12.05.2011 19 Communist Organisation could not be regarded as doing an Unlawful Act by merely obtaining employment in a defence facility. While applying the above two US judgments and observing that they are applicable to India as Fundamental Rights of our Constitution are similar to Bills of Rights in the US Constitution, it was also observed that:
"In our opinion, Section 3 (5) can not be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It as to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence."
32.In another latest case while discussing the issue of member of a terrorist organisation in Indra Dass Vs. state of Assam I (2011)DLT Cr. 596 Hon'ble Supreme Court observed:
"In Arup Bhuyan's case (supra) we have stated that mere membership of a banned organisation can not incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to State Vs. Imran Ahmed & Anr./Page 19 of 61 of order Dt. 12.05.2011 20 imminent violence. In the present case, even assuming that the appellant was a member of ULFA which is a banned organisation, there is no evidence to show that he did acts of the nature above mentioned. Thus, even if he was a member of ULFA it has not been proved that he was an active member and not merely a passive member. Hence the decision in Arup Bhuyan's case (supra) squarely applies in this case............... It has been submitted by the learned Counsel for the Government before TADA Court that under many laws mere membership of an organisation is illegal e.g. Section 3 (5) of Terrorists and Disruptive Activities,1989, Section 10 of the Unlawful Activities (Prevention) Act 1967, etc. In our opinion these statutory provisions can not be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution......
Similarly, we are of the opinion that the provisions in various statues i.e. 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plan langugage make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases otherwise these provisions will become unconstitutional violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional....
Had there been no Constitutional having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3 (5) of TADA or Section 10 of the Unlawful Activities State Vs. Imran Ahmed & Anr./Page 20 of 61 of order Dt. 12.05.2011 21 (Prevention) Act . But since there is a Constitution in our country providing for democracy and Fundamental Rights we can not give these statutory provisions such a meaning as that would make them unconstitutional."
33.Furthermore, it is also a settled legal proposition that more graver is the offence alleged , higher shall be the quality of evidence and it should be followed by very close scrutiny as to the qualitative nature and believeworthiness of the same.
34.In case titled " Mousam Singha Roy and others v. State of West Bengal" , 2003 (12) SCC 377, Hon'ble Supreme Court observed:
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused."
In Sharad Birdhichand Sarda v. State of Maharashtra, 1984(4) SCC 116 , it was held:
"We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. It must be recalled that the well established rule of criminal justice is that "fouler the crime higher the proof". In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous State Vs. Imran Ahmed & Anr./Page 21 of 61 of order Dt. 12.05.2011 22 approach was necessary to be made."
In Kashmira Singh v. State of U.P., AIR 1952 SC 159, it was observed :
"The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. In a case of this nature, the Court will move cautiously in view of the grave nature of the offence. For the reasons aforementioned, we are of the opinion that appellant is entitled to benefit of doubt. The appeal is allowed. He is directed to be set at liberty unless wanted in any other case."
35.Appreciating the evidence brought by the prosecution in this case in the light of the aforesaid Statutory Provisions and judgments, it is found that neither in the depositions of either of the nine witnesses nor in the form of any documentary or electronic evidence, it has come on record, that both the accused were indulging in waging war against the Government or were part of any conspiracy thereof. Attempt on the part of prosecution to draw the attention towards the disclosure statement given by the accused in custody is squarely hit by Section 25 of the Evidence Act. Even if the claimed recovery of cash and explosive material , is considered for argument sake , State Vs. Imran Ahmed & Anr./Page 22 of 61 of order Dt. 12.05.2011 23 there is nothing on record to show that the intention behind the same was for waging war against the Government. The words used in Section 122 IPC are clear when they read that mere collection of arms and ammunition is not enough but this has to be done with intention of waging war. As concluded supra, prosecution has failed to bring anything on record to show that both the accused are member of LeT . Admittedly neither of accused has any terror or criminal history of any sort and they both have absolutely clean antecedents. It is not even the case of the prosecution that either of them was directly or indirectly involved in any terrorist act prior to their apprehension in this case. In this scenario it was abundant duty of the prosecution to collect legally admissible evidence to show that both the accused were desirous of waging war against the Government. As such I have no hesitation in concluding that prosecution has not been able to bring on record any evidence qua commission of offence punishable U/s 121/121A and 122 of IPC.
36.Such has been the callus and inferior quality of investigation that even though State Vs. Imran Ahmed & Anr./Page 23 of 61 of order Dt. 12.05.2011 24 it is claimed that secret intelligence input was received from Central Intelligence Agency in October'2006 but admittedly it was neither reduced into writing in the form of any DD entry nor any document or technical survelliance report was obtained , placed or proved on record. It is a settled legal proposition that whenever such like intelligence input is claimed to have been received, prudence and fair play demands that it should be reduced into writing in specific terms / words of the input as far as possible.
37.In Case titled, "Peeraswmi Vs. State of NCT Delhi", 2007 (4) R.C.R. (Criminal) 339 while dealing with the case under NDPS Act and highlighting the importance of procedural safeguards against false implications of individuals it was observed by Hon'ble Delhi High Court, "This procedure is not a mere formality for the sake of it but it provides the safeguard against false implication of persons."
While referring to specific provisions of the Act Court further ruled that the State Vs. Imran Ahmed & Anr./Page 24 of 61 of order Dt. 12.05.2011 25 statute mandates that the police officer shall not only necessarily record secret information in writing but also casts duty on such officers to send a copy of such information immediately to his superiors. Court opined that non compliance of safeguarding procedure would make a prosecution story doubtful.
38.Similarly, in case titled, "B. Abdul Rehman Vs. State of Kerala" 2002 AIR SC 1810 Hon'ble Supreme Court highlighted the importance of reduction of secret information in writing while terming it as a safeguard provision apart from other provisions in Criminal Procedure Code.
State Vs. Imran Ahmed & Anr./Page 25 of 61 of order Dt. 12.05.2011 26
39. Similarly, in Constitution Bench Judgment Hon'ble Supreme Court in case titled, "State of Punjab Vs. Baldev Singh" 1999 (6) SCC 172 Hon'ble Supreme Court while dealing with a NDPS Act matter also highlighted the importance of procedural safeguards provided by the Act as well as Criminal Procedure Code. It was also mandated that Law casts duty on the prosecution to strictly follow the safety procedure and ensure their strict compliance.
40.Failure on the part of officials of Spl. Cell to do the same is not appreciable. Coupled with above omissions , the situation is further aggravated due to the fact that there is no conseus amongst the witnesses on as to who received the information. As per PW2 SI R.S.Sherawat , it was he who received the secret information . As per PW3 SI Ramesh Lamba perhaps he received the secret information . According to PW6 SI Ravinder Tyagi,Spl Cell already had information in this regard. Most importantly as per IO, PW9 ACP S.K.Yadav it was he who received the information. Despite above divergent depositions , State Vs. Imran Ahmed & Anr./Page 26 of 61 of order Dt. 12.05.2011 27 one thing is unanimous and that is that neither of them cared to reduce it in writing.
41.This apathy does not stop here. There is diagonal and divergent deposition qua development of the claimed input. Even before that it is quite interesting to observe that according to all the material witnesses the duty to develop the claimed input was assigned to Inspector Mohan Chand Sharma but surprisingly name of Inspector Mohan Chand Sharma does not even find mention in the list of witnesses. This non inclusion of his name in the list of witnesses does not appear to be an inadvertent omission simply because the kind of role he is claimed to have played , not only prior to 16.11.2006 but also during that day is, too large to be overlooked . This non inclusion calls for invocation of Section 114 illustration (g) of Evidence Act and adverse inference is liable to be drawn against the State that had they produced this witness it would have proved unfavourable to them.
State Vs. Imran Ahmed & Anr./Page 27 of 61 of order Dt. 12.05.2011 28 which runs as under:
42.Section 114 (g) of Evidence Act Section114 (g) of Indian Evidence Act :The court may presume that evidence which could be and is not produce would, if produced, be unfavourable to the person who withholds it;
43.Here the above statutory provision has to be looked upon not as a procedural requirement but rather it has to be looked upon as a rule of prudence and fair play. When one talks of act of State as ruled by Hon'ble Supreme Court in Menaka Gandhi's case , State is duty bound to act in just, fair and reasonable manner.
44.In AIR 1968 SC 1402, Hon'ble Supreme Court held that : " Court can draw an adverse inference if the material witness is withheld."
45.The importance of the role played by Inspector M.C.Sharma is highlighted by nd 2 IO of this case, PW9 ACP S.K.Yadav when he states that after receipt of intelligence input he (ACP) directed only Inspector M.C.Sharma to develop it. Upon cultivating this information , the secret input qua incident of 16.11.2006 was also received by Inspector M.C.Sharma who in turn communicated it to State Vs. Imran Ahmed & Anr./Page 28 of 61 of order Dt. 12.05.2011 29 the ACP. Further ACP directed Inspector M.C.Sharma to conduct the raid which led to claimed apprehension of both the accused. After the said arrest it was Inspector M.C.Sharma who briefed the ACP about the same. Despite all this the non inclusion of the name of Inspector M.C.Sharma in the list of witnesses indicates only one thing i.e. Spl. Cell was not desirous of exposing this witness for the rigors of cross examination qua methodology and technology adopted in developing the claimed CIA input. Since as per ACP , the secret information of 16.11.2006 was received by Inspector M.C.Sharma , it is evident that the said secret informer roped in and assigned the job only by him alone. For this reason as well , his deposition was very much necessary for establishing a believeworthy police version.
46.In cases pertaining to secrete informers , although it is a settled legal proposition that the name , particulars of the informer has to remain secret for their safety but Hon'ble Superior Courts have always issued a word of caution to the Trial Courts that evidence of prosecution cases in such like matters has State Vs. Imran Ahmed & Anr./Page 29 of 61 of order Dt. 12.05.2011 30 to be carefully and meticulously assessed.
47.In case titled Gurdial Singh Vs. State of Punjab (P&H) 2004(2) RCR (Criminal) 745 it has been observed that:
"It is well settled law that in case of secret information, the investigation agency must join some independent witnesses. This requirement of joining of independent witnesses is only to ensure that what the official witnesses are deposing is supported by such witnesses............... Accordingly , I do not feel safe to maintain the conviction of the petitioner."
48.In case titled Darshan Singh v. State of Punjab, (P&H) 1998(4) R.C.R. (Criminal) 164 it has been observed:
"In this case, conviction is resting on the testimony of ASI Harbans Singh and that of Constable Gurdial Singh. There is no corroboration to their testimony by independent evidence. No independent witness was joined in the raid by ASI Harbans Singh though ASI Harbans Singh was proceeding on receipt of secret information which he thought to be reliable. ASI Harbans Singh ought to have joined some independent witness when he was going to raid the house of the accused. Apprehension of Darshan Singh petitioner was not sudden. His apprehension was in pursuance of receipt of some secret information , which was that he was in the habit of distilling illicit liquor and if a timely raid was conducted at his house, illicit liquor State Vs. Imran Ahmed & Anr./Page 30 of 61 of order Dt. 12.05.2011 31 could be recovered from his house. Further PWs are discrepant with each other. One PW has stated that the informer accompanied them upto the house of the accused and he pointed out to them the house of the accused while other PW has stated that informer parted them on the way. In my opinion, it would not be safe to convict the accused on the sole testimony of police officials who have not been corroborated by any independent evidence. Police officials as we know, are interested in the success of the case detected by them and to achieve success in the case detected by them, they show sometimes vehemence also."
49.Furthermore, if the story of the prosecution is believed that there was a CIA input , it was admittedly only qua collection of funds through Hawala Channels. There is nothing on record to show that there was any input or lead qua collection or exchange of explosive material . There is nothing on record to show as to what investigation was carried out to expose the claimed Hawala Channels. Contrary to what other witnesses deposed, PW3 SI Ramesh Lamba even claimed of undertaking technical surveillance but admittedly there is nothing on record to show that either of the accused carried on any mobile phone or they were in touch either with each other or State Vs. Imran Ahmed & Anr./Page 31 of 61 of order Dt. 12.05.2011 32 with any other third person. Hence it can be fairly concluded that the case of the prosecution is totally devoid of any oral or documentary evidence qua pre raid period prior to 16.11.2006. Rather this is more of an open and shut case in so far as even after 16.11.2006 , there is no investigation & absolutely no incriminating material has been collected. Within matter of few hours, Spl. Cell started paper work with a DD entry & even they came to a grinding halt with arrest of Accused investigation in such like matter are not exepcted to be abrupt and cryptic.
50.As far as the raid day of 16.11.2006 is concerned, as per PW 2 SI Rajender R.S.Sherawat , he received the information from secret informer and himself reduced it as DD No.10 Mark A. Similar statement is given by PW3 SI Ramesh Lamba as well. On the contrary as per PW9 ACP , the information was received by Inspector M.C.Sharma from secret informer who in turn communicated to him.
51.It is pertinent to observe that not only Spl. Cell failed to record any DD entry State Vs. Imran Ahmed & Anr./Page 32 of 61 of order Dt. 12.05.2011 33 qua the claimed document i.e. secret input but the prosecution has also failed to prove on record that any DD entry qua claimed secret input of 16.11.2006. One computer typed copy Mark A has been placed on record but it is evident that same has not been legally proved and exhibited on record. Even the claimed author of this DD entry PW2 SI Rajender Singh Sehrawat did not prove the original record / register and he simply Marked a typed copy thereof. It is a procedural norm that a DD entry is primarily written by Duty Officer of a particular police station. Prosecution has examined PW1 ASI Kapoor Singh is Duty Officer in this matter. Even he is totally silent about recording of DD entry Mark A. He only talks of ruqqa . As per him Mark A is actually the ruqqa sent by SI Rajender Singh. His duty hours were from 4.00 PM to 12.00 Night but the DD entry No.10 is claimed to be of 3.30 PM on 10.10.2006. Prosecution case is totally silent as to who was Duty Officer on that day at that time. Neither name of any such Duty Officer either find mention in the list of witnesses nor produced by the prosecution during trial.
State Vs. Imran Ahmed & Anr./Page 33 of 61 of order Dt. 12.05.2011 34 As such this omission on the part of the prosecution too calls for drawing of an adverse inference against the State .
52.The prosecution case is also lacking qua documents claimed to be prepared at the spot. It is also interesting to observe that the said DD entry is claimed to be authored by PW2. PW9 ACP Sh. Sanjeev Kumar Yadav is totally silent about the role of PW2 SI Rajender Singh Sehrawat. If ACP is believed than this DD of 16.11.2006 should have been made by Inspector M.C.Sharma. Deposition of PW2, PW3, PW4, PW6, PW9 consistently show that the team which apprehended both the accused from Dwarka was constituted and lead by none other than Inspector M.C.Sharma. The deposition of PW9 ACP Sh. Sanjeev Kumar Yadav also makes it clear that Inspector M.C.Sharma was head of the team as the entire operation was supposed to be conducted by him under order of PW9 itself. SI Rajender Singh Sehrawat who was subsequently shown to be initial IO in this matter was only one of the junior most participants. There is absolutely nothing on record to show that as to State Vs. Imran Ahmed & Anr./Page 34 of 61 of order Dt. 12.05.2011 35 who assigned him the task of being the initial IO when his senior team mate including Inspector M.C.Sharma, Inspector Sanjay Dutt, Inspector Subhash Vats and Inspector Badrish Dutt apart from 4 SI were available with them. The clandestine manner in which the Sr. Officers shirked from their role of taking over the investigation and becoming a witness in this case despite heading the entire operation, smacks that something was seriously amiss in the whole story. Neither of the above Inspectors were either made the IO or even a witness in the list of witnesses filed by the State itself. This leads for drawing yet another adverse inference against the story of prosecution.
53.As far as the circumstances surrounding the raid in hand are concerned, it is observed that no public witness was joined by the Spl. Cell even though claimed secret input was received by them as early as 3.30 pm during the day time.
54.The office of the Spl. Cell is located at Lodhi Colony which is seat of many Government Offices and Establishments, apart from Public Sector State Vs. Imran Ahmed & Anr./Page 35 of 61 of order Dt. 12.05.2011 36 Undertakings. Admittedly there is nothing on record to show that any attempt was made by the team leader Inspector M.C.Sharma to arrange for joining of an independent public witness while leaving the office at around 4.30pm. Also there is nothing on record to show that any attempt was made when the team allegedly reached the spot from Lodhi Colony to Sector 6 Dwarka. Even this long distance is also full of government / public sector establishments and inhabited residential / commercial areas. This repeated failure to even try to rope in public witness is indicative of the fact that the team was not keen at all in joining any public witness. Even at the spot all that has been stated is that 78 passers by were asked to join the raid but they all left by expressing their inability . It is strange that even though the spot where the accused are claimed to have been apprehended is a flourishing market having showrooms, shops and offices including public sector Banks. But still neither of them were even asked to join the raid. Plea about 78 passers appears to be a casual statement in so far as neither their names nor their particulars were asked nor State Vs. Imran Ahmed & Anr./Page 36 of 61 of order Dt. 12.05.2011 37 they were warned that they can be prosecuted for non cooperating the police. It is strange that even though there was admittedly a Corporation Bank ATM and there was also a police post of local police station but no attempt was made to join them as witness. All these omissions appear to be deliberate and have the capacity of casting shadow of doubt on the police version.
55.Prosecution has examined only police witnesses in this case. Although it is a settled legal proposition that unless there are reasons, deposition of police witnesses can not be disbelieved. But simultaneously it is also a settled legal proposition that in such like matter police should make sincere effort for joining the public witnesses.
56.It is a legal mandate that joining of public witness grants credence to the prosecution story. The importance of joining of public witness is not only a rule of procedure and fair play but it is also a statutory requirement as per Section 100 Cr.PC. Although it pertains to search of the closed place but usage of the word " shall call upon two or more independent and respectable State Vs. Imran Ahmed & Anr./Page 37 of 61 of order Dt. 12.05.2011 38 inhabitants of the locality" underline the importance of joining of public witness.
57.In case titled Massa Singh v. State of Punjab, (P&H) 2000(2) R.C.R. (Criminal) 666 it has been observed that "the Investigating Officer inspite of the fact that he received a secret information did not associate any independent witness when he had the ample opportunity to do so. It is the admitted case of the prosecution that ASI Arjinder Singh received the secret information that a tractortrolley carrying illicit liquor was going to village Talwandi Nepalan via Maujgarh and he further found the information as reliable.
In these circumstances, it was obligatory on the part of the Investigating Officer to take the assistance of the independent witness from a nearby village. Even if it is assumed for the sake of argument that the Investigating Officer had no time to associate any independent witness and he was in hurry to arrest the petitioner at the first instance still, the policeparty must have remained at the spot for the sufficient time keeping in view the nature and contents of the recovery. The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated State Vs. Imran Ahmed & Anr./Page 38 of 61 of order Dt. 12.05.2011 39 by the Courts below. There is no quarrel with the proposition of the law that the statements of the police officials can be acted upon and it cannot be rejected outrightly simply because they possess the official status but before acting upon such statements the rule of prudence requires that the statement of such witness must inspire confidence in the mind of the Court."
2007 In case titled Ritesh Chakarvarti v. State of Madhya Pradesh, (SC) (1) SCC(Cri) 744 it has been observed by Hon'ble Supreme Court that "If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken."
58.In case titled State of Punjab v. Baldev Singh, 1999(4) JT SC 595 : 1999(3) RCR (Crl.) 533 (SC) it was held that:
"The provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to be extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the Act are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in State Vs. Imran Ahmed & Anr./Page 39 of 61 of order Dt. 12.05.2011 40 respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable, fair and just procedure."
59. In Maneka Gandhi v. Union of India, 1978(1) SCC 248, it was held that "when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Sections 100, 102, 103 and 165 of the Code of Criminal Procedure provide for a reasonable, fair and just procedure. Section 43 of the Act read along with subSection (4) of Section 100 Cr.P.C. contemplates that search should, as far as practicable, be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to establish that the association of such witnesses was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorized officer. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping State Vs. Imran Ahmed & Anr./Page 40 of 61 of order Dt. 12.05.2011 41 in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under could if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search and seizure operations and may also undermine respect of law. That cannot be permitted. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hingessolely on the testimony of the police officials. As per prosecution case, the secret information was received at 6.20 p.m. and the appellant was apprehended at 7.05 p.m. Thus there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of subSection (4) of Section 100 for associating public witnesses during the course of search and seizure. It is also undisputed that the appellant was apprehended in the market, which is a crowded place. Prosecution witnesses Constable Raj Kumar (PW3), SI Rishal Singh (PW4), SI Pannalal (PW5), A.C.P Manaktala (PW8) and A.C.P. J.S. Rana (PW11), who were members of the raiding party, want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may in this context be made to the provision of subSection (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under State Vs. Imran Ahmed & Anr./Page 41 of 61 of order Dt. 12.05.2011 42 Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 IPC. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by sub Section (8) of Section 100 Cr.P.C. In this connection"
60.In case titled Malik ShariefudDin, J. in Rattan Lal v. State, 1987(2) Crimes 29 it has been observed that :
".....In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by sub section (4) of Section 100 Cr.P.C. The explanation offered is that public witnesses were requested but they declined to cooperate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to cooperate without reasonable cause inspite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187 I.P.C. and this has been clearly spelt out in subsection (8) of Section 100 Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards."
61.It is pertinent to observe that Spl. Cell Officials can not even claim that they State Vs. Imran Ahmed & Anr./Page 42 of 61 of order Dt. 12.05.2011 43 had no time to waste prior to actual raid since the time of receiving secret input is 3.30PM while time of apprehension of accused persons is 7.00PM as such they had more than 3½ hrs with them.
62.As per the prosecution story the team is said to have reached the spot through 4 private cars and 2 private two wheelers. Although in case of emergency, usage of private car by police may not be justified but in a planned raid usage of private vehicles is not justifiable. Steps can be taken to ensure that vehicles of Special Cell do not look like Govt. vehicles. Had the team used Government vehicles , the Court would have got the opportunity to cross check their log books etc. There is nothing on record to show as to why official vehicles were not used. It is further indicative of clandestinely executed operation without transparency.
63.As far as the raid is concerned, it is the case of the prosecution that accused Imran was spotted coming towards the place of apprehension from Sports Complex Sector 11, Dwarka. He was identified by informer. Once the State Vs. Imran Ahmed & Anr./Page 43 of 61 of order Dt. 12.05.2011 44 informer is made a part of raiding team he could have been examined as a witness as well as per undermentioned judgment.
64.In case titled Peeraswmi v. State NCT of Delhi, (Delhi) 2007(4) R.C.R. (Criminal) 339 while dealing with a case wherein informer accompanied the raiding party, Hon'ble Delhi High Court held that :
"The other factors which throw doubt on the story of prosecution is that the secret informers are nourished by the police to receive informations about the crimes. They are never brought face to face before the accused persons because that puts their lives in danger, neither their identity is disclosed to the courts and courts also do not insist upon their identity. But in the instant case, it is testified by Sub Inspector Raj Kumar that despite the fact that secret informer had given specific address where the trade of smack and charas was being carried out, the secret informer was made a part of the raiding party. He was taken to the spot and he also pointed out to the appellant Peeraswmi and at his pointing out the appellants were arrested. If the identity of the secret informer was not so secret and he could accompany police party up to the house and come face to face with the appellant, there is no reason why he could not have been produced in the court for deposition. The entire story of secret informer in fact is falsified from the testimony of PW14, who stated that the information was received on telephone."
State Vs. Imran Ahmed & Anr./Page 44 of 61 of order Dt. 12.05.2011 45
65.Upon the claimed apprehension of both accused persons there is nothing on record to show as to whether either of the accused person tried to run away from the spot or assault the team member. Neither of them was carrying any arm nor any ammunition . Accused Imran is shown to have handed over a packet to accused Ghulam which is claimed to be containing Rs.4.50 lacs which was seized from him . Also accused Ghulam is said to be carrying a bag containing a packet which allegedly contained black and white granulated explosive weighing 1.65 kg. Another important fact observed herein is that after apprehension of accused at 7.05pm the ruqqa was sent after around 3½ hrs. There is nothing on record to show that if services of any crime team or any Explosive expert was roped in. During this long 3½ hrs all that was done is preparation of one seizure memo and ruqqa apart from seizure the above articles. It is not the case of the prosecution that either of the team member had done any specific cause in Explosives. In the absence thereof it is strange as to how any specific police personnels claimed that State Vs. Imran Ahmed & Anr./Page 45 of 61 of order Dt. 12.05.2011 46 black and white granulated material recovered from accused Ghulam was actually an explosive. Even the specific identity of the material claimed to be explosive was not know to them. In such a scenario claimed explosive pocket material was opened and samples were drawn and kept into pulinda. All this was done in highly unprofessional manner. Decision of not joining the Bomb Disposal Expert shows that Spl. Cell was not interested in joining any other person apart from its Special Cell team member. Even as per report of FSL Expert PW5 Sh. N.B.Bardhan, the sample sent to him did not tally with the specific ocular features given in the seizure memo. The description contained in the seizure memo is of "black and white granulated material". But as per FSL Report it was a Black Grey Powdery mixture. This material was sent to CFSL Laboratory after unexplained delay of 14 days on 30.11.2010. It is settled legal proposition that unexplained delay in sending such like material to the laboratory is damaging to the prosecution case .
66. In case titled " Gyan Singh Vs. State of Punjab" 2006 (2) RCR Crl. 611 State Vs. Imran Ahmed & Anr./Page 46 of 61 of order Dt. 12.05.2011 47 Hon'ble High Court considered delay of 14 days in sending samples to the office of chemical examiner , as damaging in so far as possibility of tempering with the sample could not be ruled out.
67. In another case titled " Prithi Singh Vs. State of Haryana" 2008 (2) AICLR 567 it was ruled that any delay in sending the samples to forensic laboratory renders the prosecution case doubtful.
68.Not only three was striking difference in specific physical description of material but also the quantity of the sample, which reached the CFSL Lab was quite different from what was drawn at the spot. But still this fact was concealed by the Expert from his report Ex.PW5/A. As per PW5 the recovered material was mixture of Potassium Chlorate and Black Powder. It is conceded by the expert that Potassium Chlorate is not an explosive in technical term and is only a chemical. As far as black powder is concerned, it is primary old name of gun powder. Despite claiming it to be a mixture of two State Vs. Imran Ahmed & Anr./Page 47 of 61 of order Dt. 12.05.2011 48 primary components i.e. Potassium Chlorate and black powder, Expert did not clarify the percentages thereof in the sample. It is observed that expert PW5 was not even shown the seized explosive during the course of trial so as to confirm that the samples sent to him was part of the larger portion. Further more the report Ex.PW5/1 nowhere shows the category of the claimed seized explosive. Black powder /gun powder is otherwise technically considered to be a very raw / basic kind of ignition material. The report is totally silent as to whether Section 5 (a) and (b) of Explosive Substances Act is to be invoked. The sheer fact that the prosecuting agency is not even aware of the category of the substance allegedly shown to be recovered from the possession of accused Ghulam, shows the kind of application of mind it had put while launching the prosecution. The black powder as per PW5 constitutes Potassium Niterate , Sulphur and Carbon but this fact is also not available in the report. He conceded that he did not give any detail of the specific tests conducted by him in arriving at the conclusion that samples sent to him are State Vs. Imran Ahmed & Anr./Page 48 of 61 of order Dt. 12.05.2011 49 explosive material. All that is mentioned is that he carried out certain tests in the laboratory . An expert is not expected to conceal the Specific tests conducted by him. He also conceded that he did not place on record the hand notes which were prepared during the course of claimed tests. He conceded that he did not determine the effectiveness factor of the sample apart from Ignition Point, Air Gap Sensitivity, Velocity of detonation & Pressure Value. As per him the black powder is sensitive to heat and it needs to be handled very carefully but despite all this the material claimed to have been recovered from the spot was reduced into the sealed pulinda in a very unprofessional manner. He also conceded to have not mentioned the length of the claimed timers and colour of the wires found appended upon it. All the above observations, when looked upon in totality, end upin denting the prosecution story.
69.One another thing which is highly objectionable in the case in hand is the conduct of the police team qua the post arrest investigation of accused, it is State Vs. Imran Ahmed & Anr./Page 49 of 61 of order Dt. 12.05.2011 50 found that as per claimed intelligence input, Imran had set up a base at Dwarka. Absolutely no attempt whatsoever was made to ascertain or visit his house. As per disclosure of accused Imran, he was living there since June'2002 and prior to this he claimed to have been living at Mahipal Pur. He is trained Aircraft Maintenance Engineer and was working as Aircraft Technician at Gurgaon just before his apprehension. Despite claimed seizure of Rs.4.50 lacs from him, the failure of the police to visit his residence at Dwarka indicates that they were aware that they would not find anything from his residence. It is quite improbable that when police claims to have arrested two terrorists who are said to member of LeT, no raid is conducted at their claimed Delhi hide out even though 10 days PC of accused Imran was taken. No attempt was made to verify his old Delhi Address or his conduct with his Aviation employer.
70.There is nothing on record to show as to how the currency notes were identified since neither their numbers nor photographs or any bank receipts State Vs. Imran Ahmed & Anr./Page 50 of 61 of order Dt. 12.05.2011 51 etc were found mentioned on seizure memo. Also accused Gulam is shown to have get the seized explosive from Azad Pur area, but admittedly no visit was made there to trace the source of it . There is nothing on record to show that accused Imran and Gulam were acquaintances to each other prior to their arrest. Also there is nothing on record to show that accused Imran is brother of accused Altaf who has not been chargesheeted in the matter. Further more no evidence was collected as to whether either of the accused was using any mobile or land line connection or internet connection for either communicating with each other or for that matter for communicating accused Altaf. In the absence of any input on this score, the plea of the prosecution that Imran was working at the behest of his brother Altaf falls flat.
71.The casual frame of mind and the clandestine functioning of the team while arresting the accused is also evident from the record that the notice U/s 25 (5) UAP Act sought to be give to accused Gulam was actually never served upon him or got signed from him and rather signatures of coaccused Imran were State Vs. Imran Ahmed & Anr./Page 51 of 61 of order Dt. 12.05.2011 52 obtained on it. Similarly notice sought to be served upon the accused Imran was never served upon him & rather signatures of accused Gulam were obtained over the same. This goofup can not be brushed away in the manner sought since it goes to the root of the matter and leaves a big question mark on the whole case and manner it was investigated.
72.Another anomaly observed that in his deposition PW9 ACP Sanjiv Kumar Yadav stated on oath that the intelligence input received in October'2006 was not only qua money but also qua arms and explosive. This submissions is in total contradiction with not only deposition of all other witnesses but also in clear contradiction of the chargesheet in hand, hence the input was only qua t he money and nothing else. Another important contradiction is that as per ACP, both accused were found possessing arms as well. The record is totally silent qua recovery of any arm whatsoever from either of the accused. As such this witness not only contradicts all other witnesses but also contradicts the chargesheet as well. On the similar line, in his deposition , PW5 HC State Vs. Imran Ahmed & Anr./Page 52 of 61 of order Dt. 12.05.2011 53 Manoj stated that the ruqqa which was handed over to him from the spot consisted of only two pages, but ruqqa which is appended with chargesheet in hand is found to be containing 7 pages. This smacks of antedating & fudging of record and documents filed in the chargesheet to make out a case. This witness further stated that despite being party to the raid , he can not even roughly show his position at the spot as per the site plan. He went on almost demolishing the entire prosecution story by claiming that he did not see recovery of any material from either of the accused. He sounded so casual in his approach that he stated that he was later told that the apprehended accused were carrying RDX. He also stated that there was photographer in the raiding party and photographs were taken at the spot but perusal of the chargesheet shows that no such photos have been filed on record.
73.Also there is nothing to show that either of the member of the raiding party offered self search before searching the accused persons. It is a rule of prudence and fair play that before any search of any suspect is made, the State Vs. Imran Ahmed & Anr./Page 53 of 61 of order Dt. 12.05.2011 54 officer shall offer his personal search.
74. In case titled , "State of Punjab Vs. Kushal Singh Patania" 2004 (4) RCR Criminal 498 Hon'ble Supreme Court while dealing with prevention of Corruption Act matter observed, " The police officer who conducted the search ought to have offered himself for search."
While considering this as a circumstance which creates doubts in the prosecution story appeal of the State was dismissed.
75.Another circumstance which arouses suspicion in this case is that all the documents which were prepared prior to execution of FIR contains FIR No. . That too in the same handwriting and pen . On this score in case titled Zofar v. State, (Delhi) 2000 Cri.L.J. 1589 it has been observed that :
"The number of the FIR (Ex. P.W. 1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting which clearly indicates that these documents were prepared at the same time. The Prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR (Ex. P.W. 1/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W. 1/B) was recorded prior to State Vs. Imran Ahmed & Anr./Page 54 of 61 of order Dt. 12.05.2011 55 the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
In another case titled Rajbir Singh v. State, (Delhi) 2000 Cri.L.J. 1652 while dealing with search and seizure of Recovery of contraband material from accused it was observed, " All documents such as intimation of secret information , notice under Section 50, seizure memo etc. bear number of FIR, in same ink and same handwriting showing that all these documents prepared at same time - Such like serious infirmities in prosecution case overlooked by the trial Judge . Conviction and sentence deserve to be set aside"
76.Presence of PW3 SI Ramesh Lamba too comes under cloud when he not only exceeds his 161 Cr.P.C. statement by leaps and bounds but also states that he is not aware as to whether section 25 (5 UA) Act notice was given to the accused in Hindi, English or Urdu language. He claimed that he had left the spot after apprehension. But his this plea strikes at the root of all the documents claimed to have been prepared as he is shown to have singed them as witness. They are personal search and arrest memos of accused apart from their disclosure statements Ex.PW3/1 to PW3/6. Also accused State Vs. Imran Ahmed & Anr./Page 55 of 61 of order Dt. 12.05.2011 56 Imran is claimed to have been carrying his pocket diary with him but even though he was tipped to be handling the terror found neither the pocket diary was made part of the chargesheet not its contents were shared with the court. The case of the prosecution is further damaged by the act of Police Official in preparing a common seizure memo for both the accused persons qua both the recoveries.
77. It is a settled legal preposition that in case separate recoveries are effected from different accused persons on separate seizure memos shall be prepared. The act of IO in preparing common seizure memo is not appreciated. Even though the said explosive is not shown recovered from accused Imran , IO obtained signatures of accused Imran on the seizure memo of explosives.
78.Also even though the cash was seized from the hand of accused Gulam, it is shown to have been recovered from the accused Imran as well. Also there is nothing on record to show that accused Imran was even remotely aware of State Vs. Imran Ahmed & Anr./Page 56 of 61 of order Dt. 12.05.2011 57 contents of the claimed bag of accused Gulam.
79.As far as the cash of Rs.4.50 lac is concerned, it is the case of accused Imran that his father had sent Rs. 4 lac to him for purchasing of house while Rs. 50,000/ was borrowed him from his friend at Sopore. The concerned agreement to sell and receipt are Ex. DW 1/A, B and C through which Rs. 4 lacs was obtained by his father. Ld. APP has objected to this deposition claiming that defence witnesses are unbelieveworthy and no reliance can be placed. It is a settled legal preposition that defence witnesses are entitled to the same kind of treatment as that of prosecution witness. In criminal matters all that the defence is supposed to show is a reasonable and probable defence. They are not supposed to prove their defence akin to the responsibility of the prosecution to prove beyond shadow.
80.In case titled State of Haryana v. Ram Singh, (SC) 2002(1) R.C.R. (Criminal) 443 : 2002 Cri.L.J. 987 : 2002 A.I.R. (SC) 620 it has been observed that :
State Vs. Imran Ahmed & Anr./Page 57 of 61 of order Dt. 12.05.2011 58 "Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution's witnesses in particular PW10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself what more is expected of the defence case : a doubt or a certainty jurisprudentially a doubt would be enough :
when such a suggestion has been made prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet it is prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence this itself is a circumstance, which cannot but be termed to be suspicious in nature."
81.In view of the above detailed discussion , I have no hesitation in concluding that right from the inception till the filing of the chargesheet and even thereafter, the case of the prosecution seriously suffers with improbabilities and doubts. It is a settled legal proposition that whenever prosecution come State Vs. Imran Ahmed & Anr./Page 58 of 61 of order Dt. 12.05.2011 59 up with a case which is full of doubts and is unbelieveworthy, the benefit shall always be given to the accused.
82.In case titled Partap Vs. State AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that :
''The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.''
83.In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words , the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of State Vs. Imran Ahmed & Anr./Page 59 of 61 of order Dt. 12.05.2011 60 evidence could have been avoided.'' In case titled Sharad Birdhichand Sarda AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that :
Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by evidence.
(1982) 2 SCC 72 In case titled Manzoor Vs. State of U.P. while dealing with the acquittal of accused in benefit of doubts it has been observed by Hon'ble Supreme Court that :
"Prosecution failing to prove the guilt of accused satisfactorily beyond all reasonable doubtHence, the accused must be acquitted."
84.In view of the aforesaid discussion, I have no hesitation to conclude that prosecution has not been able to prove the guilt of both the accused beyond shadow of doubt through un impeachable evidence. As such granting the benefit of doubt both the accused are acquitted of the charges punishable U/s 121A /121 /122 r/w 120B IPC & U/s 17 /18/20 of Unlawful Activities State Vs. Imran Ahmed & Anr./Page 60 of 61 of order Dt. 12.05.2011 61 (Prevention) Act and U/s 5 of Explosive Substances Act. Both the accused be released from J/c forthwith if not required in any other case. Jamatalashi of both the accused be returned. Also amount of Rs.4.50 lacs be released to the accused Imran within 6 weeks after expiry of period of appeal. File be consigned to RR.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 12.05.2011 (SURINDER S. RATHI) ADDL. SESSIONS JUDGE :02 CENTRAL:DELHI State Vs. Imran Ahmed & Anr./Page 61 of 61 of order Dt. 12.05.2011 62 26.4.2011 Pr: Ld. Addl. PP Sh. G.S.Guraya for State Both accused are produced from J/c Ld. Defence Counsel Sh.S.S.Bhushan advocate for both the accused Part FA heard.
During the course of hearing of final arguments, it was observed that even though accused Imran examined himself as DW1 in his defence, his deposition was recorded by Ld. Predecessor on 22.9.10 without oath. It appears to be an inadvertent mentioned in so far as Section 315 Cr.P.C provides for recording statement of accused as witness on oath. Both the Ld. Counsel for defence and Ld. APP for state and accused Imran as well have prayed that this statement may be read as if it is statement given on oath. Request is allowed.
Part FA heard . Put up for further FA now on 27.4.2011.
(SURINDER S. RATHI) ASJ02:CENTRAL:DELHI 26.4.2011 State Vs. Imran Ahmed & Anr./Page 62 of 61 of order Dt. 12.05.2011 63 State Vs. Imran Ahmed & Anr./Page 63 of 61 of order Dt. 12.05.2011