Delhi District Court
State vs Shabbir Ahmad Lone @ Raju on 28 September, 2012
S. C. Case 235/1/10 no. FIR No. 59/07 State Vs Shabbir Ahmad Lone @ Raju Police Station Special Cell Tried U/s 121/ 121A/ 122 IPC; 5 Explosive Substance Act; 17, 18 and 20 of Unlawful Activities Act; 25/54/59 Arms Act. Convicted Accused Shabbir Ahmed Lone - Under Section u/s 25/54 of the Arms Act, 1959 05.10.2012 Pre: Ld. APP for the state. Accused Shabbir Ahmad Lone @ Raju is in JC. Ld. counsel Sh. N D Pancholi, Adv. along with Sh. Kahorngam Zimk, Adv. for accused/ convict Shabbir Ahmad Lone. Arguments on sentence heard. Vide separate order placed along side in the file, accused Shabbir Ahmad Lone is sentenced to undergo 06 years R.I. for the offence under section 25/54 of the Arms Act, 1959 and to pay a fine of Rs.2000/ in default one month further R.I. Benefit of section 428 Cr. PC be also given to the accused. Copy of the judgment and order on sentence be given to the accused at free of cost forthwith. File be consigned to record room. (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 1 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. S. C. Case 235/1/10 no. FIR No. 59/07 State Vs Shabbir Ahmad Lone @ Raju Police Station Special Cell Tried U/s 121/ 121A/ 122 IPC; 5 Explosive Substance Act; 17, 18 and 20 of Unlawful Activities Act; 25/54/59 Arms Act. Convicted Accused Shabbir Ahmed Lone - Under Section u/s 25/54 of the Arms Act, 1959 ORDER ON THE POINT OF SENTENCE: 05.10.2012 Pre: Ld. APP for the state. Accused Shabbir Ahmad Lone @ Raju is in JC. Ld. counsel Sh. N D Pancholi, Adv. along with Sh. Kahorngam Zimk, Adv. for accused/ convict Shabbir Ahmad Lone. ld. APP argued on sentence and submits that already accused Shabbir Ahmad Lone has been acquitted for the offence u/s 121/ 121A/ 122 IPC; 5 Explosive Substance Act; 17, 18 and 20 of Unlawful Activities Act. He is only convicted for the offence u/s 25/54 of the Arms Act, 1959. He further submits that conviction u/s 25/54 of the Arms Act, 1959, is punishable by not less than 3 years and may extend to seven years and fine. He further submits that accused has been 2 acquitted against other sections by giving him benefit of doubt. So he be awarded maximum punishment. Contrary to the submissions of ld. APP, Ld. counsel for the accused Shabbir Ahmad Lone argued and submits that accused is aged about 28 years old. He further submits that offences u/s 121/ 121A/ 122 IPC; 5 Explosive Substance Act; 17, 18 and 20 of Unlawful Activities Act, could not be proved on record hence, accused has been acquitted for the same. Ld. Counsel again submits that accused has no previous criminal history. ld. Counsel again submits that accused is in custody for about 5 years and 3 months. In support of his contentions Ld. Counsel relied upon the judgment '1997 SCCs (Cri.) 412 Suresh Kumar Vs State of Punjab' and submitted that in quoted judgment 12 pistols, 24 magazines and 346 cartridges were recovered but Hon'ble Supreme Court maintained the sentence to 5 years R.I. for the offence u/s 25 Arms Act. Again, ld. Counsel has relied upon the judgment 'Tariq Mehmood & Anr. Crl. 229/2011' and submits that in this case sentence of 5 years RI for the offence us 25 Arms Act was also maintained by Hon'ble High Court. On the strength of these judgments ld. Counsel submits that in the present case offence u/s 25/54 of the Arms Act, 1959 for the recovery of 1 pistol and 7 live cartridges has 3 been proved against the accused. On these grounds he prays that accused be released for the period as already undergone by him during the course of trial. Keeping in view the present scenario and the facts and circumstances of the case to my view ends of justice will be met if accused Shabbir Ahmad Lone is sentenced to undergo 06 years R.I. for the offence under section 25/54 of the Arms Act, 1959 and to pay a fine of Rs.2000/ in default one month further R.I. Accordingly, accused Shabbir Ahmad Lone is sentenced to undergo 06 years R.I. for the offence under section 25/54 of the Arms Act, 1959 and to pay a fine of Rs.2000/ in default one month further R.I. Benefit of section 428 Cr. PC be also given to the accused. ANNOUNCED IN THE OPEN COURT ON THIS 05.10.2012 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 4 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 235/1/10 Assigned to Sessions. 07.12.07 Arguments heard on 07.09.2012 Date of order. 28.09.2012 FIR No. 59/07 State Vs Shabbir Ahmad Lone @ Raju s/o Mohd. Akbar Lone r/o Village - Kangan, PS & Tehsil - Kangan, Distt. Srinagar, (J&K) Maulvi Iqbal @ Abdur Rehman s/o Mohd. Asra Police Station Special Cell Case tried under section 121/ 121A/ 122 IPC; 5 Explosive Substance Act; 17, 18 and 20 of Unlawful Activities Act; 25/54/59 Arms Act against accused Shabbir Ahmad Lone. 120B/ 121A IPC and 18, 19 and 20 of Unlawful Activities Act against accused Maulvi Iqbal Convicted Accused Shabbir Ahmed Lone 25 /54/59 Arms Act JUDGEMENT
1. This judgment shall dispose of the case pertaining to FIR No.59/07, PS Special Cell, titled as 'State Vs Shabbir Ahmad Lone etc.', for the offences punishable u/s 121/ 121A/ 122 IPC & 5 Explosive Substance Act & 17, 18 and 20 of Unlawful Activities Act. 5
2. Briefly facts of the case are that on or before 27.07.2007 in Delhi and other places of India, accused persons entered into criminal conspiracy and on arranging explosive substance to use the same for the purpose of disruptive and terrorist activities in India, in order to cause huge loss to public lives and property and thereby to threaten the sovereignty, integrity and unity of India. On 27.07.2007 at around 7:45 p.m. from room no. 110, First Floor, City Guest House, Majlis Park, Azad Pur, Delhi accused persons in pursuance of criminal conspiracy attempted or abetted waging of war against Govt. of India by collecting explosive substance i.e. 4 live hand grenades and one A.K. Rifle, 2 magazines containing 30/30 live rounds, 7 live cartridges and one pistol of 9 mm. etc for the purpose of disruptive and terrorist activity in India in order to cause huge loss to public lives and property. They were also found mobilizing the fund of Rs.1 lacs for the purpose of disruptive and terrorist activities in India. It was Hawla Money, which they had collected for the purpose of to carry out the disruptive and terrorist activities in India. On or before 27.07.07 accused persons in pursuance of criminal conspiracy agreed by collecting above said explosive objects for the purpose of disruptive and terrorist activity in India in order to cause 6 huge loss to public lives and property. Accused persons were found to be members of the banned terrorist organization i.e Lashker e Toiba, which is involved in terrorist activity. Accused persons were found in unauthorized possession of one black colour bag containing above said explosive substance i.e. 4 live hand grenade besides other arms and ammunition etc under the circumstances as to give rise to a reasonable suspicion that they were not possessing the same for a lawful object. Accordingly, accused persons were apprehended and booked for the offences u/s 121/ 121A/ 122 IPC; 5 Explosive Substance Act; and 17, 18 and 20 of Unlawful Activities Act. I.O. recorded statement of witnesses and after completion of investigation, challan was prepared and filed to the court.
3. This case was committed to this Court and received on 07.12.2007 for trial as it pertains to the heinous crime committed under sections 120 B/ 121/ 121A/ 122 IPC; 5 Explosive Substance Act; and 17, 18, 19 and 20 Unlawful Activities Act which is exclusively triable by court of Sessions. Ld. Predecessor of this court framed a charge only for the offences u/s 120B / 121A IPC along with sections 18, 19 and 20 of Unlawful Activities (Prevention) Act in respect of accused Maulvi Iqbal and contrary to it charge for the offences u/s 7 121/ 121A/ 122 IPC; 5 Explosive Substance Act; 17, 18 and 20 of Unlawful Activities Act; and 25/54/59 Arms Act was framed against accused Shabbir Ahmad Lone. Accused persons did not plead guilty and claimed trial.
4. To prove and substantiate its case, the prosecution has examined 30 witnesses namely PW1 Sh. Udit Awasthi, General Manager at Halidram Sweets, Chandini Chowk, Delhi - public witness - he affirmed the recovery of one pistol and 7 cartridges from accused Shabbir Ahmad when Insp. Kailash was checking the accused on 27.07.07 at about 4.30 p.m. - he got exhibited the sketch of the same as Ex.PW1/A and seizure memo of the same as Ex.PW1/B - he correctly identified the accused Shabbir Ahmad as well as case property as Ex.P1 (pistol and cartridges) collectively; PW2 Kishan Lal Aggarwal - has deposed similar facts as deposed by PW1 since he was also present at the shop Haldi Ram Sweets at Chandni Chowk being employee - he also correctly identified the accused and case property too; PW3 Sanjay Gupta - another public witness - he is the witness to the effect that a raid was conducted by police in City Guest House on 27.07.07 at around 6 p.m. but he is hostile witness on some material aspects - he stated 8 that room no.110 was locked and it was opened by police with the help of key and during the search one black colour bag was found kept beneath the bed of that room, which was found containing hand grenade, 2 magazines and Rs.1 lac in denomination of Rs.1000/ were recovered besides general items i.e. clothes, shoe etc;
5. PW4 Abdul Rajjak Khan - Superintendent of Police, CID, Head Quarters, Jammu formal witness, who on receiving information vide Ex.PW4/A with regard to the arrest of accused Shabbir Ahmad, prepared a report regarding previous involvement of the accused vide report Ex.PW4/B; PW5 M C Joshi, Dy. Govt. Examiner of questioned documents, Chandigarh he got exhibited material and report as Ex.PW5/A to PW5/H and details of material as Ex.PW5/D1 to PW5/D27; PW6 Ashish Kumar , Dy. Secy. (Home), Govt. of NCT of Delhi - he passed the Sanction order in respect of accused persons, vide Ex.PW6/A; PW7 Parkash Mandal - Bus Driver (Bus no. WB 19 - 6599 rout no.259) - he affirmed the fact that police enquired him regarding bus ticket no.154, which was of his bus driven by him in the month of June 2007. In this regard he got exhibited the report as Ex.PW7/A and bus ticket as Ex.PA/1; PW8 K S Mehra - the then Principal Secy. Home He passed the 9 retention / seizure order in the present case vide Ex.PW8/A;
6. PW9 HC Kishna Ram - formal witness who took the pulandss on 30.08.2007 to FSL Rohini on the direction of ACP Sanjeev Kumar Yadav; PW10 Hira Singh, Manager of City Hotel - he affirmed the fact that on 27.07.07 police brought accused Shabbir Ahmad Lone to the Hotel he also affirmed the fact that police took into possession copy of identity card as well as register in possession. He further testified that he had also given copy of the identity card of accused Shabbir Ahmad Lone at the police station Lodhi Road; PW11 Subhash Gupta - formal witness being owner of City Guest House situated at A185/1 and 2, Majlis park, Azadpur, Delhi in 2006 after purchase from Mr. Rajender Mohan he stated that he does not know whether his statement was recorded by police; PW12 K R Mehndiratta, Asstt. Director , Department Consumer Affair - formal witness - he brought original sanction order and approval of Hon'ble LG He conveyed the sanction order dated 24.10.07, which is Ex.PW12/A; PW13 Dinesh Chopra public witness - hostile witness on the point of identification of accused Shabbir Ahmad Lone. In the crossexamination done by ld. APP he stated that he has not seen the accused as his face was not shown to him by the police; 10
7. PW14 Ms. Nutan Guha Biswas, the then District Magistrate - she had granted sanction for prosecution of accused Shabbir Ahmad Lone under section 4/5 of Explosive Substances Act besides other offences vide order no.F.1(10)/07/[14]/Div.com./Vig.(HQ)/170204 dated 23.10.2007 which is Ex.PW14/A; PW15 Satbir Singh - formal witness to the fact that on 24.09.07 at NSG Unit, 4 hand grenades were got exploded in his presence, since same could not be defused; PW16 Subedar T M siddiq, Bom Disposal Unit - formal witness who got exhibited the Bomb Destruction Certificate dated 24.09.2007 issued by his office i.e. Bomb Disposal Unit, NSG Samalkha, Delhi; PW17 Puneet Puri, Sr. Scientific Asstt. Ballistic, FSL Rohini - he has examined the pistol and cartridges; PW18 L N Rao, DCP, Special Cell - formal I.O. Of the case who received investigation of this case on 01.10.07 and he just applied for NBW of accused persons; collected FSL report; he applied for sanction u/s 39 Arms Act and recorded statements of two witnesses namely Hira lal Rawat and Subhash Chand. After completion of the investigation he filed the charge sheet on 24.10.2007; PW19 Insp. Kailash Singh Bisht - material witness being member of the raiding party - he has been crossexamined at length;
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8. PW20 Ct. Sanjeev - formal witness being Assistant of MHCM on 24.09.07 at Special Cell office He got exhibited the entry of depositing of sealed plastic container containing hand grenades marked HG1 to HG4, vide RC no.105/21/07. In this regard he got exhibited the photocopy of the same as Ex.PW20/A; PW21 Retd. / ASI Mohan Lal formal witness being duty officer on 27.07.07 at PS Special Cell, Lodhi Colony. He got exhibited the copy of FIR as Ex.PW21/A; PW22 Alok Kumar, DCP Special Cell He is formal witness he granted sanction u/s 39 Arms Act for prosecution of accused Shabbir Ahmad Lone @ Raju. He got exhibited the same as Ex.PW22/A. This witness further got exhibited a letter written to the Director, NSG, New Delhi for destroying the handgrenades, vide Ex.PW22/B; PW23 SI Ravinder Kumar Tyagi - material witness being member of the raiding party on 27.07.07; PW24 Insp. Ramesh Lamba - another member of raiding party conducted on 27.07.07; PW25 Deepankar Dutta formal witness - He was ACM reservation, Eastern Railway Calcutta - he got exhibited the letter as Ex.PW25/A which was sent by ACP, Special Cell, Lodhi Colony, New Delhi and its reply/ information as Ex/PW25/B; PW26 P C Pal - formal witness - being owner of the bus no. WBY - 2224 - he stated 12 that as per order of Govt. of West Bengal this bus was destroyed being old bus and thereafter registration number was cancelled. He got exhibited the copy of the order as Ex.PW26/A, ticket as Ex.PW26/B of his bus, and copy of cancellation of RC as Ex.PW26/C; PW27 Susanta Mohanty husband of owner of bus no.WB04A 6656 he is the witness to the effect that on 24.10.07 police met him and enquired about the ticket no.0441. He affirmed that ticket belongs to his bus. He got exhibited his reply as Ex.PW27/A and ticket as Ex.PW27/B; PW28 Ex. ASI Paramjit Singh - formal witness being MHCM on 27.07.07at PS Special Cell, Lodhi Colony, New Delhi; PW29 Amilal Daksh, Retd. Sr. Scientific Assistant he got exhibited the report with regard to comparison of hand writings of accused Shabbir Ahmad Lone with the signature done in the hotel register as Ex.PW29/A; and PW30 ACP Sanjeev Kumar - material witness being I.O. Of the case and member of the raiding party conducted on 27.07.07 - he has been crossexamined at length.
9. Having gone through the testimonies of all these witnesses it has come on record that in the first week of June 2007, a secret information was received at Special Cell, Lodhi Colon from CIA 13 (Central Intelligence Agency) to the effect that one Shabbir R/o Sri Nagar, J&K, presently based in Bangladesh is working for LeT Launching Commander Abu Alquma, a resident of Pakistan and operating from there. It was also informed that Shabbir has been directed/instructed to infiltrate into India to receive huge consignment of arms and ammunitions to carry out terrorist activities. On 27.07.2007 at about 12:30 PM, deployed informer came at Special Cell Office and provided specific information about Shabbir, regarding him and his associates' presence in India and it was informed that Shabbir would come at 4 PM to meet one of his associate near Haldiram Sweets, Fountain chowk, Chandni Chowk. This information was reduced into writing vide DD No.4 which is Ex.PW19/A. Subsequent to the above information, a team comprising of PW19 Insp. Kailash Singh Bisht, Insp. Mohan Chand Sharma, Insp. Sanjay Dutt, Insp. Subhash Dutt, Insp. Pawan , SI Ravinder Kumar Tyagi, SI Vinay Kumar Tyagi, SI Ramesh Lamba, SI Rakesh Malik, ASI Charan Singh, ASI Sanjiv Lochan, ASI Parhlad, HC Udaivir, HC Satender, HC Hansraj, HC Rakesh Tomar, HC Sanjiv, HC Manoj, HC Vinod Gautam, HC Gurvir, HC Krishan Lal and others, was constituted. The team was equipped with bullet proof jacket, briefed regarding the information and the team members 14 departed from Special Cell at about 02:15 PM in 5 private cars, one official gypsy and 3 twowheelers and they reached at Kodia Pull, T Point and later on reached near Haldiram Sweets, Near Fountain Chowk, Chandni Chowk and had taken their strategic positions around Haldiram Sweets.
10. Further, perusal of their testimonies it has come on record that at about 04:15 PM, accused Shabbir Ahmad Lone came from the side of fountain and stopped outside Haldiram Sweets and he was identified by the secret informer. Accused Shabbir Ahmad Lone waited outside Haldiram Sweets till 04:30PM and then entered inside the shop. Later on accused was apprehended inside Haldiram sweets at about 04:35 PM and on interrogation, he revealed his name as Shabbir Ahmad Lone @ Raju. From his casual search 9mm pistol was recovered from his left side dub, in the presence of two public persons namely PW1 Udit Awasthi and PW2 Krishan Lal Aggarwal. The recovered autopistol was made in China and word '9mm' 9 rounds and number 2105 was engraved on the left side of the pistol. The magazine was taken out from the pistol and it was found containing 7 live cartridges. The sketch of the pistol and 7 cartridges is Ex.PW1/A. The empty magazine was fitted in the pistol. 15 Pistol and the 7 live cartridges were kept in a cloth parcel and it was sealed with the seal of KSD and was taken into possession vide memo Ex.PW1/B and CFSL form was also prepared at the spot. Accused was interrogated who disclosed that remaining arms and ammunition still lying in a room at Majlis Park hotel, Azadpur, Delhi. The key of the room of the hotel was recovered from him and was seized vide memo Ex.PW19/A.
11. Further, perusal of their testimonies it has also come on record that on 27.07.2007 at about 5 PM, PW30 ACP Sanjiv Kumar Yadav was telephonically informed by Insp. M.C. Sharma regarding apprehension of Shabbir who accordingly reached at the spot. PW19 Insp. Kailash Chand Bisht prepared tehrir which is Ex.PW19/B, gave the same to ASI Charan Singh for registration of the case and accordingly FIR No. 59/07 which is Ex.PW21/A was registered against him. PW30 ACP Sanjiv Kumar Yadav after reaching at the spot, prepared site plan at the instance of SI Kailash which is Ex.PW30/A. At the pointing out of accused Shabbir Ahmad Lone @ Raju, police officials along with two public persons namely PW13 Dinesh Chopra and PW3 Sanjay Gupta, entered inside room no.110, City Guest House and room was searched. One bag was found 16 lying beneath the bed and when it was checked it was found containing four live hand grenade, one AK47 rifle, two magazines along with 60 live cartridges and Rs.1 Lakh in the denomination of Rs.1,000/. The beg was also containing some chunni and other clothes such as jeans pants, pant shirt, Tshirt, underwear, baniyan etc. The recovered hand grenades were kept in cotton wool and thereafter kept in four separate plastic container, sealed with the help of Cello tape and were marked HG1 to HG4. 60 live cartridges were kept in another container and it was marked LR. AK47 and two empty magazines were kept in a transparent poly plastic sheet and cardboard and it was marked AKR. The empty shoe box in which 4 hand grenades in bondolier were found, was also sealed in a clothe parcel and it was marked B. The recovered currency notes were kept in another transparent plastic container and it was marked C. The bondolier was also kept in a plastic sheet and it was marked BND. The clothes were kept in the same bag, bearing word 'Just Do It' and it was given marked B1. Another bag of black and green colour on which word "Spain" was written, was found lying on the glass wooden table in room no.110 itself. This bag was found containing clothes. The clothes were kept in the same bag and it was marked B2. One red colour shirt box on which "Deep Exclusive 17 Shirts" was written, was lying in the room and it was found containing one check shirt and one Urdu newspaper published from Kolkata and it was marked SH. From the right pocket of black colour bag, two railway tickets of Superfast train from Hawra to New Delhi of general class dt. 25.07.2007 and 5 bus tickets were recovered. I.O. pasted those tickets on a piece of paper vide Ex.PW3/B and same were taken into possession vide seizure memo Ex.PW3/A.
12. PW30 ACP Sanjiv Kumar Yadav, prepared site plan of the room vide Ex.PW30/B, contacted PW10 Hira Singh and PW11 Subhash Gupta, Manager and Owner respectively of City Hotel and seized Hotel register, photocopy of your Icard (Ex.P14) which accused had submitted at the time of checking in, vide Ex.PW24/C. Accused Shabbir Ahmad Lone was arrested vide arrest memo and personal search memo are Ex.PW24/A and B. He was also given notice regarding recovery of an amount of Rs.1 Lakh recovered from the bag which was kept in the hotel room and 280 US Dollars recovered from his personal search, vide notice Ex.PW30/C.
13. It has also come on record from the depositions of prosecution witnesses that on 28.07.2007, a letter was written to designated 18 authority regarding seizure of the amount, intended to be use for the purpose of terrorist activities vide Ex.PW30/D. Accused Shabbir Ahmad Lone, produced before the concerned court and were taken on 10 days PC remand. On 29.07.2007 and again on 31.07.2007, accused was interrogated in detail vide disclosure statements Ex.PW23/B and C. On completion of 10 days PC, he was produced before the concerned court and from there accused was sent to J/C.
14. Further, perusal of the testimonies of prosecution witnesses it has come on record that orders were obtained for destruction of live hand grenade and later on same were got destroyed at NSG Manesar, vide destruction certificate Ex.PW15/A. During the course of investigation, PW30 ACP Sanjiv Kumar Yadav obtained specimen handwriting and signatures of accused Shabbir on 04.08.2007, the same are collectively Ex.PW30/E.
15. PW4 Abdul Razaq Khan, Superintendent of Police, CID Headquarters, Jammu, received information bearing no.5570/SO/ACP/NDR which is Ex.PW4/A, regarding arrest of accused Shabbir Ahmad Lone @ Raju @ Jafar Siddiqi and regarding arrest of Mustafa Khan to ascertain regarding their involvement and 19 accordingly, SP, CID Headquarters, gave his report Ex.PW4/B.
16. On 19.09.2008, PW6 Ashish Kumar, the then Dy. Secretary, Home, Govt. of NCT of Delhi, granted sanction for institution of criminal proceedings against accused Maulvi Iqbal @ Abdul Rahman under sections 121/121A/122/123/120B IPC and under section 17/18/20/21/23 of Unlawful Activities (Prevention) Act, vide sanction order Ex.PW6/A. On 21.09.2007, PW8 Mr. K.S. Mehra, the then Principal Secretary, Home, passed retention/seizure order vide Ex.PW8/A. PW12 Mr. K.R. Mendiratta conveyed the sanction order dt. 24.10.2007 which is Ex.PW12/A, after having received the original sanction and approval of Hon'ble L.G. On 23.10.2007, PW14 Ms.Nutan Guha Vishwas, the then working as District Magistrate/Secretarycumcommissioner (Revenue) Delhi, granted sanction for prosecution of accused Shabbir Ahmad Lone @ Raju under section 4/5 of Explosive Substance Act vide sanction order Ex.PW14/A. On 17.10.2007, PW22 DCP Alok Kumar granted sanction under 39 Arms Act for prosecution of accused Shabbir Ahmad Lone, vide sanction order Ex.PW22/A. On 07.09.2007, PW22 DCP Alok Kumar wrote an official letter to National Security Guard, Samalkha, New Delhi, regarding dismantling/destroying of 20 hand grenade vide letter Ex.PW22/B.
17. On 23.10.2007, PW25 Dipankar Dutta, ACM, PRS, Eastern Railway, Kolkata, gave his reply regarding verification of tickets vide Ex.PW25/B and the report of PW26 Mr. P.C. Lal is Ex.PW26/A, B and C and the report of PW27 Sushant Mohanti regarding inquiry of tickets is Ex.PW27/A and B. PW5 M.C. Joshi, Dy. Govt. Examiner, after having examined the exhibits gave his report vide Ex.PW5/C, Ex.PW5/D1 to D20, PW5/D21 to D27, Ex.PW5/D, E, F, G and H.
18. PW17 Punit Puri, Sr. Scientific Assistant, Ballistic, on having examined the exhibits i.e. pistol 9mm and cartridges, gave his detailed report vide Ex.PW17/A. PW29 Ami Lal Daksh, Sr. Scientific Assistant, after having examined specimen handwriting and signatures gave his detailed report Ex.PW29/A.
19. Further, perusal of prosecution witnesses it has also come on record that in the year 2008, coaccused Mohd. Iqbal was arrested in case FIR No.23/08, PS Special Cell. Production warrants were got issued and on his production, he was interrogated vide disclosure statement Ex.PW23/L and later on arrested and IO prepared arrest 21 memo and personal search memo Ex.PW23/M and N and was taken on 10 days PC remand. Subsequent disclosure statement is ExPW23/P. On 27.07.2007, 30.08.2007, 11.10.2007, 30.8.2007, 28.09.2007, PW28 ASI Paramjit Singh, MHC(M) of PS Special Cell made entry in the store room register regarding deposition of case property vide entry Ex.PW28/A, B, C, D, E, F and G. On 29.09.2007.
20. Most of the witnesses have been crossexamined by defence counsel at length. I have perused their crossexamination very carefully. Having gone through their testimonies and cross examination of these witnesses, I found some minor type of contradictions which are attributable to the long duration of time and memory of a human being. On minor type of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
Observations made in the aforesaid case by the Hon'ble Supreme 22 Court are exfacie indicative of the fact that when contradictions are minor the truthfulness of the witness cannot be discredited in all.
21. After recording the statement of prosecution witnesses, statement of accused persons were recorded u/s 313 Cr.PC. They denied all the allegations. However, accused Shabbir Ahmad Lone produced one DW1 Mohd. Akbar Lone, who happens to be the father of accused Shabbir Ahmad Lone. They pleaded that they are innocent and they have been falsely implicated in the case. It has been pleaded that accused Shabbir was already arrested by Delhi Police on 14.12.2006 from School Bazar, District Mandi, Himachal Pradesh. He was kidnapped there and brought to Delhi. The news about his kidnapping from Mandi District was also published in some newspapers in Kashmir within 23 days. He was doing his business of selling shawls in Himachal Pradesh when he was illegally kidnapped by Delhi Police. He was kept in illegal custody from 14.12.2006 in Lodhi Colony, Special Cell, till he was produced in the court. Accused Maulvi Iqbal also pleaded that he was kidnapped / arrested by Delhi police on 21.03.2008 from Silampur, Delhi. A cloth was put on his eyes and he was pushed in a vehicle. Thereafter, he was beaten tortured mercilessly as a result of which he suffered 23 unconsciousness and a microchip / magnet chip was inserted in his head. He has been acquitted in case FIR no.23/08 under section 4/ 5 Explosive substance Act by the court ld. ASJ vide judgment dated 19.11.2011.
22. Final arguments were heard. During the course of arguments Ld. Addl. Public Prosecutor argued and submitted that the prosecution examined all the material witnesses to prove the charges against the accused persons factually and technically and they have completed the chain of evidence in all respect. The testimony of all the prosecution witnesses are trustworthy, believable and corroborative. The sanction authority proved the sanction after duly applying their mind. There is no material defects in the investigation as brought on record. The investigation has been carried on in the fair and truthful manner. Under these circumstances, the accused persons are liable to be convicted in accordance with the charges framed against them.
23. Per contra, Ld. Counsel for the accused persons submitted that the testimony of all the prosecution witnesses are contradictory, inconsistent and are not credible. It is further contended by the 24 counsel for the accused persons that accused persons have any connection with the militant activities. Ld. Counsel again submitted that there is no admissible evidence to prove the travel of accused persons from Jammu to Delhi and similarly there is no admissible material / evidence to prove that accused persons at any point of time visited or stayed in Jammu and Kashmir. The police team had ample time to record the statement of the Conductor of the bus, note the number of bus, had accused travelled as alleged but since it was all concoction, hence there is complete silence on the part of the prosecution. Again it is argued that entire police investigation is also silent whether the accused persons were taken to Jammu & Kashmir to arrest their associates or to get the places where they stayed identified. On the point of recovery, ld. counsel for accused persons argued and submitted that there is also no concrete evidence.
24. Ld. Counsel for accused persons again submitted that on the point of connectivity with LeT, plans and conspiracy ld. counsel for accused persons submitted that it is admitted case of the prosecution that it was not revealed during the investigation as well as during the interrogation of the accused as to where the accused persons were to go and stay in Delhi nor any contact number nor the description of 25 their contact was revealed. It is also an admitted case of prosecution that there is nothing in the entire evidence as to which place was to be targeted, when to be targeted by whom and how. There is also no evidence to prove if accused persons were members of any Terrorist outfit. There is also no evidence to prove the existence of conspiracy. The entire case is based on the disclosure statements which are not admissible in evidence and the testimonies of the police officials who are interested witnesses. There is no material in any form to prove the existence of any conspiracy or plan for waging war against the Govt. of India. On these grounds ld. counsel for the accused persons argued and submitted that entire case has been cooked up and accused persons have been falsely implicated in the present case. Ld. counsel has also relied upon the judgment 'Navjot Sandu's case [Parliament Attack case) AIR 2005 SC 3820'. Ld. counsel further argued and submitted that it is a settled proposition that prosecution is duty bound to prove its case against the accused beyond reasonable doubt and if any doubt arises benefit of it must go to the accused. It is also cardinal principle of criminal jurisprudence that the graver the offence more is the responsibility upon the prosecution to prove the same beyond reasonable doubt. It is further submitted that even if the record leaves the mind of the 26 court in equilibrium, the decision must be against the party having the onus to prove the same. On these grounds ld. counsel for accused persons submitted that accused persons be acquitted by giving them benefit of doubt.
25. Ld. counsel further submitted that the claim of the police is that accused were coming with explosive material to execute, in that case it was incumbent on the police to inform the bomb disposal squad and take them on the spot. But no such effort was done and it makes police version doubtful. It shows that recovery proceedings were fabricated. In support of his contention he has relied upon the following citations:
i) Pulin Das @ Panna Koch Vs State of Assam -
(2008) 2 Supreme Court Cases (Cri) 520, in this case it has been observed that "In State through Superintendent of Police, CBI/SIT vs. Nalini and Others, (1999) 5 SCC 253, threeJudge Bench of this Court held thus: 544. "Under Section 3 of TADA in order there is a terrorist act three essential conditions must be present and these are contained in subsection (1) of Section 3 (1) criminal activity must be committed with the requisite intention or motive, (2) weapons must have been used, and (3) consequence must have ensued.
In the light of the language used and interpreted by this Court in various decisions, it is clear from Section 3(1) that whoever with intent (i) to overawe the Government as by law established; or (ii) to strike terror in the people or any section of the people; or (iii) to alienate any section of the people; or (iv) to adversely affect the harmony amongst different sections of the people, does any act or things by using (a) bombs or dynamite, or (b) other explosive substances, or (c) inflammable substances, or (d) firearms, 27 or (e) other lethal weapons, or (f) poisons or noxious gases or other chemicals, or (g) any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause or as is likely to cause (i) death, or (ii) injuries to any person or persons, (iii) loss of or damage to or destruction of property, or (iv) disruption of any supplies or services essential to the life of the community, or (v) detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, commits a 'terrorist act' punishable under the said Section."
ii) State of Rajasthan Vs Ajit Singh & Ors - 2008 Cri. L J 364, in this case it has been observed that: "18. The learned counsel for the State has however submitted that in the light of the presumptions drawn under section 21 of the Act it had to be found that the arms and ammunition were to be used in terrorist activity and a heavy onus lay on the accused. We find this provision would be applicable only if it is "proved" that the arms and ammunition had been recovered from the accused and had been used in the manner laid down in section 3. We have on the contrary found that there is no evidence to show a recovery of weapons or that any of the accused (other than Ajit Singh) had any knowledge as to the ultimate destination and end use of the weapons that had been brought in. The presumption therefore under section 21(2) cannot therefore be raised in the present case. In the light of what has been held, we are of the opinion that the other arguments raised by the learned counsel for the parties with regard to the recoveries etc. pale into insignificance and do not require any discussion. We accordingly dismiss the appeal."
iii)Vijay Kumar @ Bhushan Vs State - 2007 [1] JCC 16, in this case it has also been observed that: "44. We also find it a little odd that absolutely no attempt was made to join any independent person in the recovery proceedings. It is not as if the railway station was deserted. Some attempt could have been made to involve some independent person in the recovery proceedings and if that independent person had refused, as it often happens, then the police could also have taken the help of other personnel who were available in the police booth which was barely about 50 feet away from where the Appellant was 28 apprehended. It appears that absolutely no steps were taken to either involve any public witness or to take the assistance of any police personnel at the railway station."
iv)State Vs. Irshad Ahmed Malik - decided by J R Aryan, ld. ASJ, Delhi on 08.11.09 in case FIR no.47/09;
v) State Vs. Khongbantom Brojen Singh -
decided on 12.05.09 by J R Aryan, ld. ASJ, Delhi in case FIR no.93/02;
vi)State Vs. Khurshid Ahmed - decided on 26.03.2011, by Mrs. Anuradha Shukla Bharadwaj, Presiding Officer, Juvenile Board, Delhi;
vii)AIR 1931 Lahore 50 Amrik singh Vs. Emperor, wherein it has been held that: "Accused person pointing out explosive substances from places not in his exclusive possession. Prosecution has to show that from such facts it can be inferred that accused was in possession of the articles."
viii)2005 Crl. L. J. 3950 (SC) State (NCT of Delhi) Vs Navjot Sandhu, it has been held that : "283. ....................We have already expressed reservations in adopting this test in its literal sense and construing it in a manner out of tune with the present day. The court must be cautious in adopting an approach which has the effect of bringing within the fold of section 121 all acts of lawless and violent acts resulting in destruction of public properties etc., and all acts of violent resistance to the armed personnel to achieve certain political object sought to be attained is of general public nature of has a political hue, the offensive violent acts targeted against armed forces and public officials should not be branded as acts of waging war. The expression 'waging war' should not be stretched too far to hold that all the acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the Government. A balanced and realistic approach is called for in construing the expression 'waging war' irrespective of how it was viewed in the long long past. An organized movement attended with violence and attacks against the public officials and armed forces while agitating 29 for the repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of treason in the form of levying war. We doubt whether such construction is in tune with the modern day perspectives and standards. Another aspect on which a clarification is called for is in regard to the observation made in the old decisions that "neither the number engaged nor the force employed, nor the species of weapons with which they may be armed" is really material to prove the offence of levying/waging war. This was said by Lord President Hope in R. V. Haride in 1820 and the same statement finds its echo in many other English cases and in the case of Maganlal Radha Krishan Vs Emperor (AIR 1946 Nagpur 173 at page 186)."
26. The most crucial point in this case is that explosive substances were recovered at the instance of accused Shabbir Ahmad Lone as discussed above which covers the act of each accused for the offence u/s 5 Explosive Substances Act. In this regard the relevant section of the Explosive Substances Act are as follows: "Section 5 in The Explosive Substances Act, 1908
5.Punishment for making or possessing explosives under suspicious circumstances. Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, be punished,
(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine;
(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
27. Phrase "explosive substance" and special category explosive substance has been defined under section 2(a) and (b) of 30 Explosive Substance Act, 1908 and for the sake of brevity and convenience same is being reproduced verbatim which is as under: "Section 2 in The Explosive Substances (Amendment) Act, 2001
2. Substitution of new sections for sections 2 to 5. In the Explosive Substances Act, 1908 (6 of 1908 .) (hereinafter referred to as the principal Act), for sections 2 to 5, the following sections shall be substituted, namely:' 2. Definitions. In this Act,
(a) the expression" explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement;
(b) the expression" special category explosive substance" shall be deemed to include research development explosive (RDX), penta erythritol tetra nitrate (PETN), high melting explosive (HMX), tri nitro toluene (TNT), low temperature plastic explosive (L PE), composition exploding (CE) 2, 4, 6 phenyl methyl nitramine or tetryl, OCTOL (mixture of high melting explosive and tri nitro toluene), plastic explosive kirkee 1 (PEK 1) and RDX TNT compounds and other similar type of explosive and a combination the of and remote control devices causing explosion and any other substance and a combination thereof which the Central Government may, by notification in the Official Gazette, specify for the purposes of this Act."
28. Being the articles i.e. live hand grenades of explosive in nature, those were got destroyed at NSG Manesar, vide deposition of PW15 Satbir Singh, and destruction Certificate Ex.PW15/A. This part of the deposition constitutes the act of the accused for the consideration of offence u/s 5 Explosive Substances Act. The nature of these explosive substances can show a path to move to 31 consider that these explosives were possessed by the accused to cause some illegal activities. Those may be either lawful or for some other ulterior motive or to attain the objective or the purpose planned in the mind of each accused in complicity with each other. This observation definitely may lead towards the conclusion that such type of dangerous explosives might have been collected to cause some unlawful activities. In this regard it is pertinent to mention that the relevant section with regard to unlawful activities are defined under Section 18 of Unlawful Activities (Prevention) Act, 1967 which are referred as under: 'Section 18 in The Unlawful Activities (Prevention) Act, 1967 "Punishment for conspiracy, etc - Whoever conspires or attempts to commit, or advocates, abets,advises or [ incites, directs or knowingly facilities] the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine"
29. The terrorist activities are defined under section 15 of the Unlawful Activities Act, 1967 and the punishment of the same has been given in the sections 18 of Unlawful Activities Act for which the charge against all the accused persons has been framed hereinafter referred as Act. The section 15 of the Act defines the terrorist act and same is reproduced as under: "15. Terrorist act - Whoever does any act with 32 intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause
(i) death of, or injuries to, any person or persons;
or
(ii) loss of, or damage to, or destruction of, property; or
(iii)disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
(iv)damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force of attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act. Perusal of section 15 reveals that any act with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any 33 other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign country or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any Stale Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government of India or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
30. For the sake of brevity and convenience the other relevant sections be also reproduced verbatim which are as under:
121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India.Whoever, wages war against the[Government of India], or attempts to wage such war, or abets the waging of such war, shall be punished with death, or [imprisonment for life] [and shall also be liable to fine].
[Illustration] [***] A joins an insurrection against the [Government of India]. A has committed the offence defined in this section.
121A. Conspiracy to commit offences 34 punishable by section 121.Whoever within or without [India] conspires to commit any of the offences punishable by section 121, [***] conspires to overawe, by means of criminal force or the show of criminal force, [the Central Government or any [State] Government [***], shall be punished with [imprisonment for life], or with imprisonment of either description which may extend to ten years, [and shall also be liable to fine], Explanation.To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall make place in pursuance thereof.]
122. Collecting arms, etc., with intention of waging war against the Government of India. Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the [Government of India], shall be punished with [imprisonment for life] or imprisonment of either description for a term not exceeding ten years, [and shall also be liable to fine].
31. So far as the contradictions or discrepancies pointed out by defence counsel are concerned, they are bound to occur in the statement of prosecution witnesses when they appear to depose after lapse of long period. Guidelines on how to appreciate the testimony of natural witnesses were laid down in the case titled as 'Zamir Ahmed Vs The State 1996 Cri.L.J. 2354', where while discussing the provision of section 3 of the Evidence Act, it was held as under : "It would be a hard nut to crack to find out a case which is bereft of embellishment, exaggeration, contradictions and inconsistencies. The said things are natural. Such contradictions and inconsistencies are bound to creep in with the passage of time. If the witnesses are not tutored they would come out with a natural and spontaneous version on their own. The two persons on being asked to 35 reproduce a particular incident which they have witnesses with their own eyes would be unable to do so in like manner. Each one of them will narrate the same in his own words according to his own perception and in proportion to his intelligence power of observation."
32. In case titled as State of Kerala Vs M.M. Mathew & Anr., AIR 1978 SC 1571, it was held that : "The evidence of the investigating officer cannot be branded as highly interested on the ground that they want that the accused are convicted. Such a presumption runs counter to the well recognized principle that primafacie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case."
33. In the case in hand, accused Shabbir Ahmad Lone was arrested on 27.07.2007 along with a Pistol and seven live cartridges from the shop of Haldiram Sweets, 1454/2, Main Chandini Chowk Road, near Fountain Chowk, Delhi and consequent upon his arrest his disclosure statement was recorded on 28.07.2007 and thereafter two supplementary statements were also recorded on 29.07.2007 and 31.07.2007. These disclosure statements have been got exhibited vide Ex.PW23/A, Ex.PW23/B and Ex.PW23/C respectively. So long as coaccused Maulvi Iqbal @ Abdur Rehman is concerned, 36 his name was disclosed by accused Shabbir Ahmad Lone in his disclosure statement dt.31.07.2007. Accused Mohd. Iqbal @ Abdul Rehman was arrested on 28.06.2008 on the basis of production warrants issued against him in case FIR No.23/08, PS Special Cell and his disclosure statement was recorded on 28.06.2008 and 03.07.2008 which have been got exhibited as Ex.PW23/L and Ex.PW23/P respectively. Neither any recovery consequent upon the disclosure statement of Mohd. Iqbal was effected at his instance nor any other coaccused was arrested in Western U.P. Since, the prosecution failed to prove that the accused persons were pertaining to militant group LeT or they are having any nexus with enemy countries so there is no evidence on record to show that the accused persons are having any link with terrorist activities or militants group, nor any prosecution witness disclosed the outcome of the investigation with Jammu and Kashmir nor it has been proved by any oral or documentary evidence. Therefore, the prosecution failed to prove that the accused persons have any link with enemy country or belong to a militant group. So long as criminal conspiracy is concerned, it has emerged from the discussion as discussed above that there is no association of accused persons immediately before the day of incident which can impact their conduct towards the 37 probability of the offence. So, in the case in hand no evidence has come on record with regard to hatch a criminal conspiracy immediately prior to the alleged incident also. It is interesting to note that ld. Predecessor of this court framed a charge only for the offences u/s 120B / 121A IPC along with sections 18, 19 and 20 of Unlawful Activities (Prevention) Act in respect of accused Maulvi Iqbal and contrary to it charge for the offences u/s 121/ 121A/ 122 IPC; 5 Explosive Substance Act; 17, 18 and 20 of Unlawful Activities Act; and 25/54/59 Arms Act was framed against accused Shabbir Ahmad Lone. Since, no prior meeting of mind with regard to hatch a conspiracy to commit offence under the charge has come on record either through direct evidence or ocular evidence, so the prosecution has again failed to bring home the guilt of the accused persons for the offences u/s 120B/ 121/ 121A/ 122 IPC and 17, 18, 19 and 20 of Unlawful Activities Act.
34. In judgment 'Mohammad Usman Mohammad Hussain Vs State Of Maharashtra on 3 March, 1981 Equivalent citations: 1981 AIR 1062, 1981 SCR (3) 68, the following observation has been made: "In order to bring home the offence under section 5 of the Explosive Substances Act, the prosecution has to 38 prove: (i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object. [75DG] 1: 2. The burden of proof of the ingredients of section 5 of the Explosive Substances Act, is on the prosecution. The moment prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea."
35. In the case in hand, however, the prosecution has also failed to prove that the accused persons had an intention to cause an explosion of a nature likely to endanger life or to cause serious injury to property. However, accused Shabbir Ahmad Lone was found in possession of 7 live cartridges and one pistol of 9mm without any valid licence vide seizure memo Ex. PW1/B and sketch of the same as Ex.PW1/A vide deposition of PW1 Sh. Udit Awasthi, General Manager at Halidram Sweets, Chandini Chowk, Delhi who affirmed the recovery of one pistol and 7 cartridges from accused Shabbir Ahmad when Insp. Kailash was checking the accused on 27.07.07 at about 4.30 p.m. He got exhibited the sketch of the same as Ex.PW1/A and seizure memo of the same as Ex.PW1/B. This public 39 witness i.e. PW1 has correctly identified accused Shabbir Ahmad Lone as well as case property as Ex.P1 collectively (Pistol and 7 cartridges). His testimony is also supported by another public witness i.e. PW2 Kishan Lal Aggarwal. Police officials i.e. PW19 Insp. Kailash Singh, PW23 SI Ravinder Tyagi and PW24 Insp. Ramesh Lamba have also proved on record the recovery of pistol and 7 cartridges from accused Shabbir Ahmad Lone on 27.07.07 at around 4.35 p.m. at the spot i.e. Haldiram Sweets 1454/2, Main Chandni Chowk Road, near Fountain Chowk, Delhi. The testimony of PW17 Puneet Puri, Sr. Scientific Asstt. Ballistic, FSL Rohini is also very important. He has examined the pistol and cartridges vide his detailed report Ex.PW17/A. In his report it has specifically come on record that improvised Pistol 9mm caliber marked F1 is in working order in present condition and test fire conducted successfully. This witness has also affirmed the fact that cartridges are firearms / ammunition as defined in Arms Act, 1959. In light of these facts and circumstances of the case, I am of the view that prosecution has successfully proved its case beyond reasonable doubt against accused Shabbir Ahmad Lone for the offence u/s 25/54/59 of Arms Act.
40
36. So long as the recovery of explosive substances at the instance of accused Shabbir Ahmad Lone is concerned, it is interesting to note that PW10 Hira Singh, Manager of City Hotel affirmed the fact that on 27.07.07 police brought accused Shabbir Ahmad Lone to the Hotel and took into possession copy of identity card as well as register in possession. He testified that he had also given copy of the identity card of accused Shabbir Ahmad Lone at the police station Lodhi Road. But other witness PW11 Subhash Gupta who happens to be the owner of City Guest House situated at A 185/1 and 2, Majlis Park, Azadpur, Delhi in 2006 deposed that he does not know whether his statement was recorded by police. Another Public witness PW13 Dinesh Chopra has also been got declared hostile on the point of identification of accused Shabbir Ahmad Lone. PW3 Sanjay Gupta - another public witness, who is the witness to the effect that a raid was conducted by police in City Guest House on 27.07.07 at around 6 p.m. but he is also hostile witness on some material aspects. He categorically stated that he had not seen the accused Shabbir Ahmed Lone with police on that day. He has also stated that he cannot say at whose instance, bags were recovered. Since, both the material public witness have been got declared hostile. Thus, it goes to indicate that some other 41 corroboration from independent sources are required to be proved against him for the purpose of conviction of accused Shabbir Ahmed ere Lone u/s 5 Explosive Act. M recovery of explosive substances at the instance of accused Shabbir Ahmad Lone, in absence of corroboration of public witnesses, can not tantamount to cause threat the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India though it is pointer that such possession of explosive substances indicates towards some act of destructive in nature yet the specific mode having in the mind of accused persons and in agreement to each other has not been brought on record by the prosecution successfully so, the conviction merely on the indicatives to my view will lead miscarriage of justice. Besides, nonproof and determination of mental intent of each accused to commit offences u/s 121/ 121A/ 122 IPC and 17, 18 and 20 of Unlawful Activities Act, again it cannot hold group view that mere getting recovered Explosive substances without corroboration was intended to commit terrorist act or belonging to the accused persons of a terrorist group, organization or other sort of gang in absence of other evidence on record. It is also interesting to note that charge for having found in possession of weapons i.e. pistol and 7 live cartridges along with recovery of AK 47 rifle was framed while 42 the recovery of the rifle was effected along with explosive substances from room no. 110, First Floor, City Guest House, Majlis Park, Azad Pur, Delhi. Since, prosecution has failed to prove its case for the offence u/s 5 Explosive Act so the recovery of AK 47 rifle also does not stand proved. In light of these facts and circumstances of the case and discussion in the preceding paras, I am of the view that prosecution has miserably failed to establish the case for the offence u/s 5 Explosive Act against accused Shabbir Ahmad Lone for the reasons discussed above.
Accordingly, I convict accused Shabbir
Ahmad Lone for the offence punishable u/s
25/54/59 of Arms Act;
I acquit him for the offence u/s 5 of the
Explosive Substance Act, 1908 and 121/ 121A/
122 IPC and 17, 18 and 20 of Unlawful Activities Act by giving him benefit of doubt; and I acquit accused Maulvi Iqbal Abdur Rehman for the offences punishable u/s 120 B and 121A IPC and 18, 19 and 20 of Unlawful Activities Act for the reasons as discussed in the preceding paras.
ANNOUNCED IN THE OPEN COURT ON THIS 28.09.2012 (RAJ KAPOOR) ASJ02/West Distt THC : Delhi 43 235/1/10 Shabbir Ahmad Lone etc 28.09.2012 Pre: Ld. APP for the state.
Accused are in JC.
Vide separate judgment placed along side in the file, accused Shabbir Ahmad Lone is convicted for the offence u/s 25 /54/59 of Arms Act.
Accused Maulvi Iqbal is acquitted.
At this stage, accused Maulvi Iqbal is directed to furnish personal bond in the sum of Rs.30,000/ with one sound surety in the like amount for the period of six months that in case the decision is set aside in any appeal or other proceedings he shall present himself before the court concerned to face further proceedings in accordance with law.
Now, case be fixed for Order on Sentence for 05.10.2012 in respect of accused Shabbir Ahmad Lone and for furnishing PB/SB of accused Maulvi Iqbal.
(RAJ KAPOOR) ASJ02/West Distt THC : Delhi 44