Delhi District Court
State vs . Mohd. Iqbal @ Mushtaq @ Faisal on 27 August, 2009
1 FIR No.: 92/2006
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL
SESSIONS JUDGE-03,NORTH, DELHI.
FIR No.:- 92/2006
PS:- Special Cell, Lodhi Colony
U/s:- 121/121A/122/123/120-B IPC r/w sec
4/5 of Explosive Substance Act,
Sec. 17/18/20/21/23 of Unlawful Activities
(Prevention) Act
S.C. No.: 08/2007
In the matter of:
State Vs. Mohd. Iqbal @ Mushtaq @ Faisal
S/o Late Mohd. Yusuf
R/o Jaan Mohallah, Sonawari, Tehsil
Bandipura, Distt-Baramullah,
Jammu & Kashmir.
Mushtaq Ahmad Kallo @ Afzal
S/o Late Abdul Gaffar Kallo
R/o New Colony, Sopore,
Distt-Baramullah
Jammu & Kashmir
Date of receiving in Sessions Court: 05.03.2007
Arguments Heard: 08.06.2009,
15.07.2009,
12.08.2009
27.08.2009
Date of Judgement: 27.08.2009
2 FIR No.: 92/2006
J U D GE M E N T
Case Of The Prosecution:
1.In the first week of November 2006, a secret information regarding one Kashmiri youth having code name Faisal R/o Baramula J&K, an active member of banned militant oganization Jaish-e-Mohammad (JeM), who used to carry arms and ammunition, explosives and money for the terrorist outfit from Delhi to J&K and is working under the directions of Sajjad @ Jhanjeb @ Mike II R/o Pakistan, Operational Commander of J&K of JeM was received in Special Cell, Delhi Police. In order to work on the secret information, a team led by Inspector Mohan Chand Sharma was formed under the supervision of ACP Sanjeev Yadav. Informers were deployed, contacts were developed and technical surveillance was mounted. On 28.11.2006 at about 5.00 P.M., specific information was received by SI Rahul Kumar of P.S. Special Cell from a secret informer telephonically that the abovesaid Faisal alongwith his other associate is coming from Deoband by Kalka-Delhi 3 FIR No.: 92/2006 passenger and would arrive at Old Delhi Railway Station at about 7.45 P.M. and would deliver a consignment of explosives to one of their associates near "Kaudia Pul". If raid is conducted, they can be apprehended alongwith huge quantity of explosive material. This information was reduced into writing in the Daily Diary and was discussed with the senior officers. A team comprising of Inspector Mohan Chand Sharma, Inspector Sanjay Dutt, Inspector Badrish Dutt, Inspector Subhash Vats, SI Dharmender, SI Dalip Kumar, SI Rakesh Malik, SI Kailash Bisht and various other police officials of Special Cell including SI Rahul Kumar was formed. The team duly equipped with arms, ammunition and bullet proof jackets, IO Kit etc. left the office of Special Cell in three private cars and two wheelers at about 6.00 P.M. where the secret informer met SI Rahul and Inspector Mohan Chand Sharma at the pre appointed place. SI Rahul Kumar asked 7/8 passers by to join the raiding party after briefing them about the information but all of them left the place after making genuine excuses without disclosing their identities. 4 FIR No.: 92/2006 On inquiry, it was revealed that Kalka Delhi Passenger Train is arriving at right time. Without wasting any time, the members of the raiding party were deployed accordingly. At about 8.10 P.M., two persons were coming on foot from railway station towards Kaudia Pul. One person was carrying air bag on his left shoulder and brief case in his right hand. He was identified by the informer as Faisal and other person was carrying a shoulder bag on his left shoulder. They stopped in front of Hemant Telecom underneath Kaudia Pul and started waiting. After waiting for about 10 minutes when they started proceeding towards Chandni Chowk side, they were apprehended. SI Rahul Kumar alongwith SI Dharmender overpowered the said Faisal whose name and address was disclosed as Mohd. Iqbal @ Mushtaq @ Faisal and the other person was apprehended by SI Dalip Kumar and ASI Charan Singh whose name and address was disclosed as Mushtaq Ahmed Kallo @ Afzal. The police team disclosed their identity to them and enquired about the contents of the bags in their possession. Both the persons 5 FIR No.: 92/2006 became perplexed and could not give any satisfactory reply. Their bags were searched and from the bag of accused Mohd. Iqbal 10 wads of Indian currency notes each containing 100 notes in the denominations of 500, total amounting to Rs. 5 Lacs were found. A cheque book and some other documents were also recovered from him.
2. From the possession of accused Mushtaq Ahmad Kallo @ Afzal granulated black colour explosive in the bag was found. ACP Sanjeev Kumar Yadav wad duly informed about the apprehension of militants and recovery. Out of the recovered 2 Kgs of explosive, two sample of 10 grams each were taken out in two plastic containers and pulandas were prepared. Remaining 1.980 Kgs of explosive were again kept in the same card box and sealed in separate pullanda. During this process, SI Rahul again asked the public persons present at the spot to joint the investigation. Two witnesses one Sh. Nand Kishore S/o Sh. Radha Kishan and another Sh. Sikander Azam S/o Ashique Ali came forward and disclosed that they were the witnesses to 6 FIR No.: 92/2006 the apprehension and subsequent recovery and agreed to join the police party. Recovered currency notes were also sealed in separate pullanda. All the recovered articles and samples were separately sealed and form CFSL was filled up. Seal after use was handed over to public witness Nand Kishore. This whole process was duly photographed and all the recovered articles and sealed pulandas were taken into police possession through seizure memos. Both the accused were duly interrogated and during interrogation, both the accused persons admitted that they are active members of banned terrorist organization Jaish- e-Mohammad (JeM) and have come to Delhi to deliver the consignment of explosives which was to be used to carry out disruptive and terrorist activities in Delhi and in other parts of India. The Accused Mohd. Iqbal further revealed that recovered explosive material was collected by him from one Abduss Sohaid in Deoband, U.P. and was to be delivered to another JeM operative namely Raju who was to meet him at Kaudia Pul, but when he did not turn up, he was returning to contact his 7 FIR No.: 92/2006 commander in Kashmir. He further revealed that he had collected the recovered Rs. 5 Lacs from a hawala operator in Delhi and the amount was to be used by him on the directions of his commander for the purpose of terrorism. The rukka was duly prepared and was sent through ASI Charan Singh for the registration of the case. Since the case was registered under Unlawful Activities (Prevention) Amendment Act, therefore further investigation was taken up by ACP Sanjeev Yadav and during the further investigation both the accused were further interrogated and hand written statements of both the accused persons were obtained on 17.11.2006 with regard to their "No Objection" regarding seizure of Rs. 5 lacs . Intimation was also sent to the Principal Secretary (Home), GNCT of Delhi. During further investigation, accused persons were taken to police custody remand and NBWs of the other accused were obtained. Explosives and timers were also sent to CFSL , CGO Complex, Lodhi Road, Delhi for examination and after completion of investigation, challan U/s 121/121A/122/123/120-B IPC r/w 8 FIR No.: 92/2006 sec.4/5 of Explosive Substance Act and sec. 17/18/20/21/23 of Unlawful Activities (Prevention) Act was filed in the court.
3. Since the offences were exclusively triable by the court of sessions, therefore, after supply of the documents, the Ld. CMM committed the case to the court of Sessions. Charge Against The Accused Persons:-
4. Prima facie case under section 4 and 5 of Explosive Substance Act read with sec. 23 of Unlawful Activities (Prevention) Act, section 121/121A/122/123 IPC and section 17/18/20/21 of Unlawful Activities (Prevention) Act was made out against the accused Mushtaq Ahmad Kallo @ Afzal and case U/s 121/121A/122/123 IPC and section 17/18/20/21 of Unlawful Activities (Prevention) Act was made out against the accused Mohd. Iqbal @ Mushtaq@ Faisal. Charge was framed against them accordingly to which they pleaded not guilty and claimed trial.
Witnesses Examined:
5. In support of its case, prosecution has examined 16 9 FIR No.: 92/2006 witnesses in all.
6. Statement of accused U/s 313 Cr.P.C. was recorded wherein accused stated that they do not know anything and they were never arrested on the said date and place and only Rs. 5 lacs were recovered from their possession which was meant for their business transaction and was not any hawala money. Accused Mohd. Iqbal further stated that Sales Tax Form C, Bills of Bharat Petroleum Corp. Ltd., 4 cheque book of Jammu & Kashmir Bank, one affidavit, some letter heads of JAAN Gas Agency and bills of Deltion Industries were found from his possession and he has been falsely implicated in this case. Accused Mohd. Iqbal further stated that it is a false case against him as he being a citizen of Jammu & Kashmir and also being a Muslim. He is a business man in Jammu & Kashmir and he came to Delhi by Jet Airways on 14.11.2006. He further chose to lead evidence in defence.
7. Accused Mushtaq Ahmad also denied the case of the prosecution and stated that the case is a false case and nothing 10 FIR No.: 92/2006 incriminating was recovered from him. He is a business man from Jammu & Kashmir and police officials falsely implicated him in this case. He also chose to lead evidence in his defence.
8. In their defence, accused persons examined one DW1 Imran Ahmad Kirmani who is also an accused in case FIR No. 89/06 U/s 120-B/121A IPC r/w Sec. 17/18/19 of Unlawful Activities (Prevention) Act, P.S. Special Cell, Lodhi Colony. He stated that he was abducted from LIG Flats, Manglapuri, Pocket 13, Phase-1 Dwarka by Special Cell Cops and his arrest was shown on 16.11.2006 from Dwarka, Sector 6 Market. He is an Aeronautical Engineer from Jaipur, Rajasthan and was working as aircraft technician with Star Aviation Academy, Palam Vihar, Gurgaon. He was about to join his duty in Spice Jet as he had been offered the job by both Spice Jet and Air Deccan two days before his arrest and his antecedents were also being verified when he was arrested by the police officials of Special Cell. There was a boy already lodged in Special Cell Office by the name of Mushtaq from Azamgarh. On 16th night when he was 11 FIR No.: 92/2006 being taken to another room after interrogation, he saw two kashmiris present there who are also present in the court today. He did not know those two persons earlier but he came to know about their names on the night intervening 16th and 17th 2006. He stated that they stayed in Lodhi Colony for 5 days together and they shared toiletries etc.
9. In his defence accused Mohd. Iqbal himself appeared as DW2. He stated that he was working as Bharat Gas (Domestic), distributor of Ms. Bharat Petroleum. He had purchased gas stoves from Delton Industries through Bharat Petroleum as they were the authorized manufacturers of gas appliances and spares. He had purchased the appliances in the month of July and October 2006 and had come to Delhi with the cash and cheque books to make payments against the pending bills of his purchases of these appliances from Delton Industries. He had also received the communication from Delton Industries on 29.9.06 requesting him to send Form C for Financial Year 2005-2006. He duly proved the letter from Delton Industries 12 FIR No.: 92/2006 and also copy of the bill as Ex. DW2/B. He stated that he had also been shortlisted for the dealership of Mahindra and Mahindra Automobile Sector and he was to finalize the dealership and that was his purpose of visit to Delhi. He further proved the letter concerning this transaction as Ex. DW2/C. He further stated that he had withdrawn a sum of Rs. four lakh seventy six thousand two hundred and fifty five which he had drawn from the Jammu Kashmir Bank, Bandipura Branch. Rest of the money 50,000/0 plus was his sale which he had brought to Delhi and all the papers which were with him at the time of arrest are now in the possession of Special Cell. He was asked to part with the money which he was carrying for ulterior motives by the police which he refused and was thus falsely implicated in the present case. He stated that he had also applied to Human Rights Commission stating his plight and the mode of arrest and detention. He further stated that he had come alongwith co-accused Mushtaq Ahmad @ Kallu on 14.11.06 and after that he was abducted on 16.11.2006 and was illegally 13 FIR No.: 92/2006 detained till 27.11.2006.
10. I have heard the Ld. counsel for the accused and Ld. APP for the state and have also gone through the submissions made by the accused as well as the written arguments sent by the accused from the jail and have carefully perused the record.
Section 121 of IPC reads as under:
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 of life), (and shall also be liable to fine)".
Section 121-A of IPC reads as under:
Section 121-A 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 years, (and shall also be 14 FIR No.: 92/2006 liable to fine)".
Section 122 of IPC reads as under:
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)".
Section 123 of IPC reads as under:
Section 123 of IPC: Concealing with intent to facilitate design to wage war:-
"Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the (Government of India), intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
Section 17 of Unlawful Activities (Prevention) Act reads as under:
Section 17 Unlawful Activities (Prevention) Act: Punishment for raising 15 FIR No.: 92/2006 fund for terrorist act:-
"Whoever raises fund for the purpose of committing 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".
Section 18 of Unlawful Activities (Prevention) Act reads as under:
Section 18 Unlawful Activities (Prevention) Act: Punishment for conspiracy etc.:- "Whoever conspires or attempts to commit, or advocates, abets, advises or incites 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 extend to imprisonment for life, and shall also be liable to fine".
Section 20 of Unlawful Activities (Prevention) Act reads as under:
Section 20 Unlawful Activities (Prevention) Act: Punishment for being member of terrorist gang or organization:-
"Any person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall 16 FIR No.: 92/2006 also be liable to fine".
Section 21 of Unlawful Activities (Prevention) Act reads as under:
Section 21 of Unlawful Activities (Prevention) Act: Punishment for holding proceeds of terrorism:-
"Whoever knowingly holds any property derived or obtained from commission of any terrorist act or acquired through the terrorist fund shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine".
Section 23 of Unlawful Activities (Prevention) Act reads as under:
Section 23 of Unlawful Activities (Prevention) Act reads as under:
Enhanced penalties:-
(1)If any person with intent to aid any terrorist contravenes any provision of, or any rule made under the Explosives Act, 1884 (4 of 1884) or the Explosive Substances Act, 1908 (6 of 1908) or the inflammable Substances Act, 1952 (20 of 1952) or the Arms Act,1959 (54 of 1959), or is in unauthorized possession of any bomb, dynamite or hazardous explosive substance or other lethal weapon or substance capable of mass destruction or biological or chemical substance of warfare, he shall, notwithstanding anything 17 FIR No.: 92/2006 contained in any of the aforesaid Acts or rules made thereunder, 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.
(2)Any person who, with intent to aid any terrorist, attempts to contravene or abets,or does any act preparatory to contravention of any provision of any law or rule specified in sub-section (1), shall be deemed to have contravened that provision under sub-section (1) and the provisions of that sub-section in relation to such person, have effect subject to the modification that the reference to "imprisonment for life" therein shall be construed as a reference to "imprisonment for ten years"
Section 4 of Explosive Substances Act reads as under:
Section 4 Explosive Substances Act:
Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property:-
"Any person who unlawfully and maliciously-
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion 18 FIR No.: 92/2006 of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India.
Shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished-
(i)in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine".
Section 5 of Explosive Substances Act reads as under:
Section 5 Explosive Substances Act: Punishment for making or possessing explosives under suspicious circumstances:-
"Any person who makes or knowingly has in his possession or under his control any 19 FIR No.: 92/2006 explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished-
(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine.
(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine".
11. In the written submissions, the accused have taken the plea that prosecution deliberately withheld the date of arrest of both the accused persons and a drama not even enacted was played in the dark tortured chambers of Special Cell at Lodhi Colony, New Delhi. It is further argued that ACP Sanjeev Yadav is neither the Station House Officer nor a member of Police Station Special Cell. He has projected himself in his examination as ACP of Special Cell which under 20 FIR No.: 92/2006 the Punjab Police Rules subsequently adopted by Delhi Police now called Delhi Police Rules, do not have a post of beyond Station House Officer in any Police Station. The Special Cell has ceased to be an independent Government Investigating Agency ever since Special Cell was converted into a regular Police Station and, therefore, all the investigation carried out since day one is invalid. It is no doubt true that under the Punjab Police Rules, the head of the Police Station is Station House Officer but in the entire evidence led by the prosecution in the present case, they have nowhere taken the plea that ACP Sanjeev Yadav is the Incharge of the Police Station Special Cell. The plea of the prosecution is that he is the IO of the case i. e. Investigating Officer of the case, which he is and not the head of the Special Cell. Perusal of the record shows that it is nowhere been claimed by the prosecution that ACP Sanjeev Yadav is the head of Police Station Special Cell and he has only been mentioned as the Investigating Officer, ACP, Sanjeev Yadav.
21 FIR No.: 92/2006
12. It is further stated that there is no thumb impression of the complainant or informant in column no.14 in FIR and also column no. 13 sub column no.4 does not show compliance of the same . So far as the column no.13 sub column no.4 is concerned, then it was not filled up as the case was not transferred from or to anywhere else on the point of jurisdiction. So far as the column no.14 in the FIR is concerned, then Ld. APP for the state argued that since information was received in the office of Special Cell telephonically that one Faisal who is resident of Baramullah, J & K is an active member of banned militant organization Jaish-e-Mohmmad (JeM) and he used to carry arms and ammunition, explosives and money for the terrorist outfit from Delhi to J&K. He is working under the directions of one Sajjad@ Jhanjeb @ Mike who is a resident of Pakistan and is Operational Commander of J&K of JeM. Thereafter a team of Inspector Mohan Chand Sharma under the supervision of ACP Sanjeev Yadav was deployed to work on this information. It is of common knowledge that in the 22 FIR No.: 92/2006 Special Cell generally informations regarding the terrorist activities are received and, thereafter the teams are constituted and deployed to work on this information. All the members of raiding party have testified to this effect and, therefore, no adverse presumption can be drawn if the column no.14 in the FIR remained blank and there being no signatures or thumb impression of the informant. In the present case, there is no complainant and it was only a secret information which was received telephonically and on this information informers were deployed and technical surveillance was mounted. Moreover, PW1 SI Dharmender Kumar, PW5 SI Dilip Kumar and PW8 SI Charan Singh, all the members of the raiding party have deposed that the secret information was received on telephone and therefore, no question arise of the signature or the thumb impression of the informant in the present case.
13. Counsel for the accused has further placed reliance upon 1997 Criminal Law Journal 2377 in case titled as State of Maharashtra vs. Ahmad Gulam Nabi Shaikh & Others. 23 FIR No.: 92/2006 With due respect that it is submitted that for the above said reasons the ratio laid down in this case is not applicable in the present case and also the facts and circumstances are different in both the cases.
14. The another plea taken by the accused is that the ocular testimony of search and seizure have been denied by witnesses and the photographs taken at the time of so called search and seizure does not find mention in section 173 Cr. P.C. report and also the name of photographer does not find place in the list of witnesses. In this case two public witnesses PW11 Nand Kishore and PW7 Sikandar Azam have been examined by the prosecution. Both these witnesses are stated to be present at the time of arrest of the accused but both these witnesses have not supported the case of the prosecution. PW7 Sikandar Azam stated that he does not remember the exact date, month and year but about one year ago he was the driver of vehicle No. DL-1Q-0082 (Phatphat Sewa). It had become dark and his vehicle had stopped near Kaudiya Pul. He was getting his 24 FIR No.: 92/2006 vehicle repaired. He left his vehicle with the mechanic and had gone for dinner in nearby hotel. The hotel owner told him that there is a crowd near his vehicle and at that time he was taking his dinner. After half an hour when he came back to his vehicle after finishing his dinner, he saw the crowd there and police enquired him whether this vehicle belongs to him and he told that this vehicle belongs to him and police made him to sit there. Thereafter he left and nothing happened in his presence. Similarly, PW11 Nand Kishore has stated that in the month of November, 2006 in between 8.00/8.30 p.m. he was present near Kaudiya Pul in STD booth and was making telephone call to his children and was informing them that on that day he would became late due to disorder of his car. As soon as he left the STD booth, the owner of STD booth called him and told him that he has been called by police officials. The police asked him if he had seen something in the STD booth on which he replied in negative as he had not seen anybody and anything in the STD booth. The police made him to sit in the disordered vehicle of 25 FIR No.: 92/2006 Sikandar which was standing parked near Kaudia Pul. In that vehicle police officers were sitting and doing writing work. The police told him to sign some documents and further told him that they had apprehended two militants but the police had not shown those persons to him. He signed on the papers prepared by the police and thereafter he was discharged. Both these witnesses have been cross examined at length by the Ld. APP for the state but these witnesses did not support the case of the prosecution. Evidentiary value of hostile witness was discussed in 1991 Criminal Law Journal 2653 (SC) wherein it was held by the Hon'ble Supreme Court that "evidence of hostile witness cannot be treated as effaced or washed off the record all together and part of the evidence which is otherwise acceptable can be acted upon". In the present case, both PW7 and PW11 have admitted their presence at the place of occurrence i.e. Kaudia Pul and both these witnesses have also admitted that it was the evening time. PW7 has also admitted that he was driving his vehicle No.DL-1Q-0082 (Phat Phat Sewa). His 26 FIR No.: 92/2006 testimony is corroborated by PW11 in this regard who has stated that the police officials made him to sit in the disordered vehicle of Sikandar which was standing parked near the Kaudia Pul. Thus, from the testimony of PW7 and PW11 it is is clear that vehicle belonged to Sikandar and while sitting in that vehicle, police officials did their writing work and it was evening time. Though PW7 has not given the date, month and year of the incident but PW11 has stated that it is a matter of November 2006. He has further stated that the police officials told him that they had nabbed two terrorists but they were not shown to him. From the testimony of PW7 and PW11 what transpired is that both the witnesses were present at the time of incident at the place of occurrence and it was the evening time. PW7 Sikandar Azam had a vehicle also which was standing parked near the Kaudia Pul and PW11 in his cross by the Ld. APP for the state has admitted that the date of incident is 27.11.2006. PW11 has further admitted in his cross that he came to know that the persons who were in plain clothes were of Delhi Police. 27 FIR No.: 92/2006 However both these witnesses denied any seizure or search in their presence. But what comes out from their testimony is that the incident is of November 2006 near kaudia Pul and PW Sikandar was also having his vehicle parked there. From the testimony of PW7 also, it seems that this witness is intentionally suppressing the truth from the court since he in his cross by the Ld. APP for the state has stated that he had called the mechanic at the place of occurrence i.e. Kaudia Pul where as in his chief examination, he stated that he left his vehicle with the mechanic for repairing the same and he himself was taking his dinner. In his cross by Ld. APP for the state he stated that he had called the mechanic from there only who was repairing his vehicle. He further stated that he had not taken any bill from the mechanic who had repaired his vehicle and he went to Kashmiri Gate for purchasing clutch plates from there and it took about 20 minutes in bringing the clutch plates. He is unable to told that name of the shop from where he had purchased the clutch plates. Though he has admitted that he spent Rs. 175/- for the 28 FIR No.: 92/2006 purchase of articles and he claimed the same from the owner but he stated that the shopkeeper did not issue any bill for the same. It is hard to believe that he claimed Rs. 175/- from his owner without submitting any bill to him. From a bare reading of the testimony of these witnesses, it is clear that they are trying to conceal something from the court which is very natural since as soon as word "Terrorist" is used for anybody, the common man does not want to get himself involved in the testimony against them which is also the reason for PW7 and PW11 turning hostile and not supporting the case of the prosecution.
So far as the photographs U/s 173 Cr.P.C. are concerned, then perusal of the record shows that PW1 in his chief examination has no where stated that the photographs of the incident was taken. Similarly PW5 has also not stated that they got the photographs of the incident or the site taken. It was only in the cross examination of these witnesses that a suggestions has been given to them. Similarly PW8 has also not stated anything about the photographs. The suggestion of 29 FIR No.: 92/2006 photographs had come from the accused themselves which shows their involvement in the case and strengthens the case of the prosecution that both the accused persons were apprehended at the spot given by the prosecution and since the photographs were taken, therefore, the accused were well aware of the fact that the photographs were taken. It is only during the chief examination of PW15 ACP Sanjeev Yadav that the photographs have been cited. Same were also filed subsequently in the court records on 7.5.08 after the case was committed to the court of sessions and also the testimony of some of the witnesses had come on record. It was only during the cross examination of PW1 and PW5 that they were confronted with the question of photographs and the police officials realized this fact that the photographs were taken at the spot but they have not been filed with the challan and subsequently the same was filed. If the police officials of Special Cell stage managed all the drama and accused were not arrested at the given place,then how the accused came to know 30 FIR No.: 92/2006 that some photographs at the spot had also been taken. Rather none of the witnesses of the prosecution except PW15 ACP Sanjeev Yadav stated about photographs in their examination in chief and it was only during the cross examination of PW1, PW5, PW8, PW14 and PW15 that they were confronted with the fact regarding taking of photographs. So far as the plea taken by the accused that photographs are not mentioned in section 173 report is concerned, then the same has been duly mentioned.
15. Further plea of the accused is that PW4 SI Rajinder Shehrawat had not taken any permission or road certificate from the Chief Controller of Explosive Department for taking the parcel to CFSL office. PW4 is one of the police official of Special Cell. He has nowhere stated that he took the road certificate from Chief Controller of Explosive Department for taking the parcels to CFSL. Rather he has stated that he took the sealed parcels from MHC(M) of Police Station Special Cell vide R/C no. 155/21 and deposited the same with the Ballistic Department of 31 FIR No.: 92/2006 CFSL office and duly received a copy of road certificate from the concerned official of CFSL and after his return to P.S. , he deposited the same to the Malkhana Moharar. When he did not take any parcel from the Chief Controller of Explosive Department, there was no need for PW4 to receive any permission or road certificate from the Chief Controller of Explosive Department.
16. It has also been argued that PW6 Inspector Mohan Chand Sharma has not been made a witness in the present case. In this case, SI Rahul Kumar is the first IO and subsequently ACP Sanjeev Yadav took over from him. Both of them have been made witness. Now if one or two members of the raiding party are not made witness in this case, no adverse presumption for the same can be raised.
17. Ld. counsel for the accused has further placed reliance upon Matloob Vs. State II (1997) CCR 835 and in Afsar Hussain Vs. NCT of Delhi 72 (1998) DLT 261 but it may be mentioned that these authoritative pronouncement does not 32 FIR No.: 92/2006 help the accused in any manner as the facts and circumstances of the present case are quite different.
18. Accused has further argued that PW6 Mohd. Jamil Akhtar has admitted in his cross examination that on 16.11.2006, local police checked the hotel and there is an entry in this regard on the register and the register is exhibited as PW6/A. Perusal of the testimony of PW6 shows that this witness has admitted that local police used to inspect their hotel in a routine manner and on the occasions of National Festivals and on 26th January and 15th August. On 16.11.2006, the police officials of Special Cell had not checked their hotel but the local police had checked their hotel and there is an entry in this regard. A suggestion has been given to him that on 16.11.2006 police officials from Police Station Special Cell alongwith the local police had taken away the accused Mohd. Iqbal and Mushtaq Ahmad from their hotel for inquiry but he has denied the suggestion. This witness has further stated that the police officials of P.S. Special Cell did not call him in their office 33 FIR No.: 92/2006 15.11.2006 to 17.11.2006. This witness is the Manager of Rest Inn Guest House. He stated that on 5.12.2006, the police officials of P.S. Special Cell alongwith accused Mohd. Iqbal had visited their guest house and checked the register maintained by them. He further supplied the photocopy of page no.86 of the register wherein the entry in the name of Mohd.Iqbal and Mushtaq Ahmad was made. He proved the same as Ex. PW6/A. Nothing material has come out of the cross examination of this witness. He denied the suggestion that the police officials of Special Cell apprehended the accused persons from his hotel on 16.11.2006. He further stated that only local police in routine manner came there and nothing else. This witness further stated that accused Mohd. Iqbal told him that he has come in to Delhi for official work of LIC and he had retained a photocopy of the LIC Card. From Ex. PW6/A it stands proved that accused Mohd. Iqbal checked in the hotel Rest Inn on 14.11.2006. He had shown his reason for visiting as official and checked out from the said hotel on 16.11.2006 at 6.00 P.M. 34 FIR No.: 92/2006
19. PW3 is the Chief Inquiry and Reservation Supervisor from Delhi Junction, North Railway. He stated that he received a notice from Delhi police about inquiry of arrival of Kalka Passenger Train no. 304 Delhi Junction and he gave his reply Ex. PW3/A. He further deposed that the Kalka Passenger Train arrived at 19:50 hours at Delhi Junction on 27.11.2006 and train was having its stoppage at Deoband Station. Nothing material has come out of the cross examination of PW3. From the testimony of PW3, it stands proved that Kalka Passenger Train arrived at 19:50 hours at Delhi Junction on 27.11.2006 and the train was having its stoppage at Deoband Station.
20. So far as sanction are concerned, then sanction for prosecution of the accused persons are valid and same has been proved by PW16 Ms. Naini Jayaseelan as Ex.PW15/F. Nothing material has come out of the cross examination of PW2 and PW16 and from their testimony, it stands proved that the sanction for prosecution of both the accused persons was duly accorded by the competent authority.
35 FIR No.: 92/2006
21. Prosecution has also duly proved the two tickets from Deoband seized during the search of accused persons. Though the accused in their written submissions sent from jail have stated that the police had not mentioned this fact that they had recovered two tickets from Mohd. Iqbal and this fact is also absent in the statement U/s 161 Cr.P.C. of witnesses of prosecution. So far as the statement of witnesses U/s 161 Cr.P.C. or in the court is concerned, then the witnesses have stated that some documents were recovered from the personal search of accused. None of the witnesses has given each and every particular of the documents recovered from the personal search of the accused but for this no adverse presumption can be raised. This case is of the year 2006 and the witnesses do not possess computer like memory. The witnesses have stated that some documents were recovered and if for the tickets, they have not specifically stated that two tickets were also recovered from the accused Mohd. Iqbal , then no adverse presumption for the same can be drawn. Witnesses of the raiding party are PW1 36 FIR No.: 92/2006 SI Dharmender Kumar, PW5 SI Dilip Kumar, PW8 SI Charan Singh, PW14 SI Rahul Kumar and PW 15 ACP Sanjeev Yadav. Except for minor contradictions here and there in their cross examination, nothing material has come out of their cross examination. All the witnesses have stated in unison in the court that on 27.11.2006, a secret information was received telephonically by SI Rahul Kumar that accused Faisal is coming to Delhi alongwith his associates by Kalka Passenger Train from Deoband.
22. PW12 is Sh. Raghunath Singh, Station Superintendent who has stated that on 21.2.2007, he was posted as Station Superintendent at DeoBand. He received a letter of ACP Sanjeev Kumar wherein he was required to verify the journey tickets the number of which was recorded in the letter. He verified the official record and on verification, it was revealed that both the said tickets were sold by the railway station of Deoband on 27.11.2006 for Delhi Junction. He submitted his written reply Ex. PW12/B to the ACP. Thus, from both the 37 FIR No.: 92/2006 tickets produced on record by the police officials, it stands proved that both these tickets recovered on the personal search of the accused were sold by the railway station of Deoband on 27.11.2006 for Delhi Junction and since the accused persons were having these tickets, the only presumption that can be raised is that the accused persons used these tickets to travel to Delhi from Deoband and, therefore, it stands proved that on 27.11.2006, both the accused persons arrived from Kalka Passenger Train to Delhi from Deoband. Merely because the tickets were in unsealed envelope is no ground to presume that they were planted upon the accused persons. If they were planted upon the accused persons, then the police officials of Special Cell would have taken extra care to seize both these tickets in sealed envelope but they seized the same in unsealed envelope as they were recovered from the personal search of the accused persons and were not made the case property.
23. Accused in their written submissions have taken the plea that on 16.11.2006, they were picked up from the Rest Inn 38 FIR No.: 92/2006 Guest House and police officials demanded Rs. 5 lacs from them and on their refusal to pay the same, the police officials implicated them in the present case and took them in illegal custody for about 12 days. No suggestion has been given to PW1 that they had picked up the accused persons on 16.11.2006 from Rest Inn Guest House. Similarly no such suggestion has been given to PW5, to PW8 or to PW14.
24. The accused has further taken the plea that there are certain over writing in the seizure memo and same has also been admitted by PW15 but merely because there are certain over writings in some memos or some misprinting or typographical errors are present in the report under section 173 Cr.P.C. is no ground to throw away the case of the prosecution presuming it to be a false one. The police officials of P.S. Special Cell are also human beings and if while conducting the proceedings, some mistakes like over writing or typographical error have been made, then they being some minor discrepancies which does not go to the root of the case can very 39 FIR No.: 92/2006 easily be overlooked by the court and for this no adverse presumption against the prosecution can be raised.
25. Furthermore the accused has pointed out to certain discrepancies in the statement of PW Nand Kishore given U/s 161 Cr.P.C. It may be mentioned that this witness did not support the case of the prosecution fully in the witness box in the court. Moreover he is not an expert witness who can tell whether the explosives were in granulated form or in powdered form. It may further be mentioned that the accused himself is relying upon the testimony of PW Nand Kishore given to the police U/S 161 Cr.P.C. If that is so, then it is not that only a part of his statement U/s 161 Cr.P.C. should be read in the court. Now when the accused himself is relying upon the same to bring out contradictions in the prosecution case, then the whole statement of PW Nand Kishore given to the police U/s 161 Cr.P.C. shall be read in evidence and not in isolation.
26. Accused has further placed reliance upon Jagdish Narain & Ors. Vs. State of U.P. (1996) 8 SCC 199 and has 40 FIR No.: 92/2006 submitted that since the site plan has been made at the instance of SI Rahul Kumar, therefore, the same is only a hearsay evidence. It is not that SI Rahul Kumar left the spot or thereafter got prepared the site plan Ex. PW15/A. SI Rahul Kumar was also present at the spot when ACP Sanjeev Kumar Yadav reached at the spot and since SI Rahul Kumar had described the whole position to ACP Sanjeev Yadav, therefore, the site plan was prepared at his instance and it cannot in any circumstances be called as a hearsay evidence. Moreover if the same is not signed by any public witness, then no presumption can be raised that it is a false or fabricated document. It was the night time and after nabbing of the terrorist by the police officials, certainly crowd must have collected at the spot and during that time if on certain memos, IO could not get the sign of public witnesses, then for the same, no adverse presumption can be raised. Further for the security of public persons as well as for the area, the police officials must be in hurry to take the accused persons to the police lock up as early as possible. 41 FIR No.: 92/2006
27. Accused has further made submissions in his written arguments that as per the statement of PW5, the case diary was not written at the place of occurrence and, therefore either the case diary has not been maintained or PW5 SI Dilip was not present at the spot. For the sake of repetition, it may be mentioned that in such type of cases for the reasons of public security also, the police officials must be in hurry to take the accused to the lockup and, therefore, if there and then at the spot, the case diary was not written, is no ground to throw away the case of the prosecution.
28. Counsel for the accused further argued that inspite of prior information, same was not shared with the Railway Police or any other agency keeping in view the security of passengers even when there have been many instances of train blasts in the country. In this regard, Ld. APP for the state submits that the RDX which have been recovered from the accused persons was not in active form and the accused persons were required to hand over the same to some other persons and since the 42 FIR No.: 92/2006 information was precise, therefore after being worked out for so many days the same was not shared with the Railway Police or with others. In my view, these submissions of Ld. APP for the state bears force.
29. Counsel for the accused further argued that SI Sherawat when returned from Deoband informed ACP Sanjeev Yadav that no recoveries have been effected from the accused persons in Deoband. If no recovery were effected from the accused persons in Deoband then no presumption can be raised that in Delhi also no recoveries were effected from them or that the RDX or money has been planted upon them.
30. It is further argued by the counsel for the accused that no serious efforts were made by the IO to associate any independent witness with raiding party. It is not the case here. Two public persons PW7 and PW11 had been made the witnesses of raiding party. Counsel for the accused further argued that FIR number and under sections of the offence was written on the top at the time of preparation memos and no 43 FIR No.: 92/2006 rukka was sent to the Police station at the time of seizure. ACP Sanjeev Yadav himself has stated that he telephoned to the duty officer and enquired from him the number of FIR and if thereafter the FIR was mentioned on the memos without any change, then no adverse presumption for the same can be drawn.
31. For the sake of repetition, it may be mentioned that in the present case public witnesses have not fully supported the case of the prosecution but there is no rule of law that police officials are always liars. Except for some minor contradictions here and there, all the police officials have corroborated each other in verbatim.
32. It has been held in AIR 1976 Supreme Court 915 that "minor contradictions guarantees that the witnesses are not tutored" . Similar view has been taken in 1989 Supreme Court 1456.
33. In the present case each of the police officials had been subjected to a lengthy cross examination by the defence 44 FIR No.: 92/2006 counsel and generally the cross examination of each member of the raiding party had been completed in more than two dates. The cross examination when is lengthy, minor contradictions /discrepancies is the guarantee of truth. Reliance is placed upon 1979 Criminal Law Journal 727.
34. From the testimony of PWs it stands proved that on 28.11.2006 both the accused persons got down from Kalka Passenger Train in the evening and at about 8.10 P.M.,they came from the railway station towards Kaudia Pul side. One of them was carrying an air bag on his left shoulder and a brief case on his right hand and the other person was carrying a shoulder bag on his left shoulder. Both of them were apprehended by the police official and on interrogation their name revealed as Mohd. Iqbal @ Mushtaq @ Faisal and Mushtaq Ahmad @ Kallo @ Afzal. They were asked about the contents of the bags and brief case but since they could not give satisfactory answer, their bag was searched. From the bag which was being carried out by accused Mohd. Iqbal @ 45 FIR No.: 92/2006 Mushtaq@ Faisal, 10 wads of Indian currency notes each containing 100 notes in the denominations of Rs. 500, total amounting to Rs. 5 Lacs and a cheque book and some other documents were recovered. From the bag which was being carried out by accused Mushtaq Ahmad @ Kallo, granulated black colour explosives were recovered. The recovered explosive substances were weighed and it was found to be of 2 kgs. Samples were taken out from the recovered explosives in plastic containers and other case property were sealed separately and proceedings as per law were conducted at the spot.
35. The defence taken by the accused persons is that they were lifted by the officials of Special Cell on 16.11.2006 from outside the Rest Inn Guest House and they had taken away Rs. 5 Lacs from the possession of accused Mohd. Iqbal which he was possessing for his business purposes. He is an innocent business man from Jammu & Kashmir and he had came to Delhi alongwith his Mushtaq Ahmad @ Kallo by Jet Airway Flight no. 46 FIR No.: 92/2006 9W605, SXR/Delhi on 14.11.2006 for his business purposes and he was abducted on 16.11.2006 by the police officials of Special Cell from the stairs of Rest Inn Guest House and his arrest has been shown on papers on 27.11.2006. Accused Mushtaq Ahmad @ kallo has stated that nothing has been recovered from them and he is a reputed business man from Sopore, District Baramullah in Jammu & Kashmir and on 16.11.2006, he was abducted from the staircase of Rest Inn Guest House and he came to Delhi by jet Airway Flight on 14.11.2006 for business purpose but after that he was abducted by the officials of Special Cell and his false arrest has been shown on papers on 27.11.2006. In their defence accused have examined one DW Imran Ahmad Kirmani who stated that he is also an accused in case FIR No. 89/06, U/s 120-B, 121 A IPC read with section 17,18,19 of Unlawful Activities Act, P. S. Special Cell. He stated that he was abducted from 197, DDA LIG Flats, Manglapuri, Pocket -13, Phase-I, Dwarka by Special Cell Cops and his arrest was shown on 16.11.2006 from 47 FIR No.: 92/2006 Dwarka, Sector 6 Market. He is an aeronautical engineer from Jaipur, Rajasthan and was working as aircraft technician with Star Aviation Academy, Palam Vihar, Gurgaon. He was going to get a job in Spice Jet. He had been offered the job by both Spice Jet and Air Deccan if first week of November 2006. He was about to join his job in a day or two. He was taken to Lodhi Colony, Special Cell Office by the officials of Special Cell on 15.11.2006 itself. There was a boy already lodged in Special Cell Office by the name of Mushtaq Ahmad from AzamGarh. He was kept in Special Cell, Lodhi Colony during 27.11.2006 and thereafter, he was sent to judicial custody at Tihar. He further stated that on 16th night, when he was being taken to another room after interrogation for the night, he saw two Kashmiris present there . He did not know these two persons earlier but he came to know about their names on the intervening night of 16.11.2006 and 17.11.2006. They stayed in Lodhi Colony for 5 days together and shared toiletries. In his cross this witness stated that he never stated before the court that there was other 48 FIR No.: 92/2006 people like him in the office of Special Cell when he was produced in the court. He further stated that he had not made any complaint to any Legal Aid Counsel that he and other Kashmiris have been falsely implicated in these type of cases. He stated that he had written to various authorities but he was unable to produce any copy of the same. He has further admitted in his cross that accused Mohd. Iqbal and he both are kept in Jail No.3. The only presumption that can be raised from this is that DW1 being the jail inmate of the accused persons has come to depose in their favour.
36. It may be mentioned that both the accused have stated that they came to Delhi by Jet Airways Flight on 14.11.2006 but neither their air tickets have been produced by both the accused persons nor any record from Jet Airways have been summoned by both of them to prove the fact that tickets had been booked in their name and they actually travelled from Jet Airways on 14.11.2006 and came down to Delhi for business purposes. No doubt there is an entry in the Rest Inn Guest 49 FIR No.: 92/2006 House regarding the check in and check out of the accused for 14.11.2006 and 16.11.2006 respectively but from these entries, it does not stands proved that the accused travelled from Jet Airways Flight on that day or that they were picked up by the officials of Special Cell on 16.11.2006 or that they did not come to Delhi on 16.11.2006.
37. The accused Mohd. Iqbal himself appeared as DW2. He stated that he was working as Bharat Gas (Domestic) Distributor of Ms. Bharat Petroleum car at Haajin/Bhandipura. He stated that he had purchased the appliances in the month of July and October 2006 and had come to Delhi with the cash and cheque books to make the payments against the pending bills of his purchases of these appliances from Delton Industries. Though this witness has proved certain bills on record but no official from Delton Industries has been summoned by the accused to prove this fact that these bills belong to them or that they have been issued by them or that they supplied some appliances to the accused in the month of July and October 50 FIR No.: 92/2006 2006. Even if for the arguments sake, we take it to be true that accused Mohd. Iqbal is a distributor of M/s Bharat Petroleum and he made purchases from Delton Industries, Bhandipura but from this no presumption can be raised against the prosecution that the charges levelled against the accused are false. Accused Mohd. Iqbal has proved a copy of the letters received from Delton Industries but neither the writer of all theses bills nor the books of accounts have been produced by him. It seems that he has not bothered to summon any person from Delton Industries to depose in his favour. He has further stated that he had been shortlisted for the dealership of Mahindra and Mahindra Automobile Sector and he was to finalize the dealership and that was his purpose of visit to Delhi. It may be mentioned that during the cross examination of witnesses a contradictory stand has been taken by the accused that he had come to Delhi for the purpose of shopping for his marriage but now in his defence, the accused has taken the plea that he had come to Delhi for some business purposes. In the entries made 51 FIR No.: 92/2006 in Rest Inn Guest House register, the accused had written his purpose of visit as official. Accused has also proved on record certain transactions from Jammu & Kashmir Bank with him but neither these entries have been certified as per the Bankers Books of Evidence nor it shows that the accused Mohd. Iqbal had withdrawn a sum of Rs. 5 lacs.
38. Thus, the prosecution has been able to prove its case against the accused persons. Accused Mushtaq Ahmad was found in possession of 2 Kgs of RDX which is an explosive substance. Section 2(b) of the Act provides that RDX i.e. Research Development Explosive is a "special category explosive substance". As rightly argued by Ld. Counsel for the accused, charge U/s 4 of the Act must fails since no act was committed in relation to the RDX with requisite mens rea. However, Section 5 of the Act is made out since the accused was knowingly found in possession and under his control a "special category of explosive substance" under such circumstances giving rise to a reasonable suspicion that it was 52 FIR No.: 92/2006 not for lawful object. The RDX found with unaccounted money leads to only one inference that consignment in possession of the accused was with the intent to aid a terrorist Act. When that inference is drawn, section 23 of the UAPA is also attracted and the accused becomes liable for enhanced penalty as well.
39. Now coming to the section 121/121A/122/123 of IPC. There can never be any direct evidence regarding the fact of waging war against the Government of India or attempt to wage such a war. The offence can only be proved by the circumstantial evidence and oral testimony of the witnesses. In the present case, the accused Mushtaq Ahmad was found in possession of 2 Kgs of RDX , an explosive substance. Since it was in one bag and, therefore, one bag can be carried only by one person. As such he was found in the possession of the same and was charged accordingly but accused Mohd. Iqbal was also apprehended alongwith the accused Mushtaq Ahmad and no presumption can be raised that he was not aware of the possession of RDX by accused Mushtaq Ahmad. The accused 53 FIR No.: 92/2006 Mohd. Iqbal has further failed to satisfy the court about the possession of Rs. 5 Lacs . He stated that the money belongs to him. Since the money belongs to him and it has been admitted by him, therefore, the onus shifted upon him to prove its source which he has failed to prove and only presumption that can be raised is that it was the Hawala money which was raised from benami transaction for terrorist activities. The prosecution has also proved on record the disclosure statement made by both the accused persons in detail but under the Indian Evidence Act, the disclosure statement is not admissible in evidence. However, the possession of RDX and the amount of Rs. 5 Lacs has been duly proved by the prosecution and now the burden shifted upon the accused persons to prove that explosives substances were not meant to commit some unlawful act in the country or to wage war against the Government of India which they have failed to discharge. No doubt the act of waging war against the country should not be interpreted lightly by the court but the arguments of Ld. APP for the state that if the blast had 54 FIR No.: 92/2006 already taken place or the accused were apprehended after using the money for the terrorist activities, then the offence U/s 121/121A/122/123 IPC shall be deemed to be established against the accused persons by the court otherwise not, bears force. Due to alertness of the Security Agencies, the accused have been apprehended before they can use the explosives or the hawala money . They have failed to satisfy the court why they were found in possession of the same and in such circumstances, the only presumption that can be raised is that it was meant to wage war against the Government of India and, therefore, the prosecution has been able to prove its case U/s 121/121A/122/123 IPC against both the accused persons.
40. So far as the offence U/s 17 of Unlawful Activities (Prevention) Act is concerned, then there is no evidence on record against both the accused persons that they had raised a sum of Rs. 5 Lacs. In his disclosure statement that has come on record also, accused Mohd. Iqbal has stated that the money was given to him. Therefore the prosecution has failed to prove 55 FIR No.: 92/2006 the provisions of Section 17 of Unlawful Activities (Prevention) Act against both the accused persons.
41. So far as section 18 or 20 of Unlawful Activities (Prevention) Act is concerned, then the accused were found in possession of RDX and Hawala money as has been duly established by the prosecution and the only inference that can be made from this is that the RDX was meant for the terrorist activities in the country and as such, the prosecution has been able to prove the ingredients of section 18 of Unlawful Activities (Prevention) Act against both the accused persons.
42. So far as section 20 of Unlawful Activities (Prevention) Act is concerned then, the prosecution has failed to prove the same and prosecution has further failed to prove section 21 of Unlawful Activities (Prevention) Act against the accused persons.
43. As such accused Mohd. Iqbal is convicted for the offence 121/121A/122/123 of IPC and Section 18 of Unlawful Activities (Prevention) Act and acquitted of the offence U/s 56 FIR No.: 92/2006 17/20/21 of Unlawful Activities (Prevention) Act and accused Mushtaq Ahmad @ Kallo is convicted for the offence 121/121A/122/123 of IPC, U/s 5 of Explosives Substances Act read with section 23 of Unlawful Activities (Prevention) Act and Section 18 of Unlawful Activities (Prevention) Act and acquitted of the offence U/s 17/20/21 of Unlawful Activities (Prevention) Act.
(MADHU JAIN) Additional Sessions Judge-3 (North) Tis Hazari Courts, Delhi.
Announced in the open court today i.e. on 27.08.2009.