Delhi District Court
Sc No.44/08 & 53/10 State vs . Noor Mohd. Tantray & Anr. Page 1 on 3 January, 2011
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
JUDGE 01 (CENTRAL)/ JUDGE, SPECIAL COURT
(PREVENTION OF TERRORISM ACT, 2002), DELHI
SC No. 44/08 (Old No. 01/04) FIR No.: 70/03
ID No.: 02401R6022712004 & PS: Spl. Cell Lodhi Colony
New Delhi.
SC no. 53/10 (Old No. 09/04) U/Sec.: 3/4/5//20/21 POTA ,
121/121A/122/123/120B
IPC
ID No.: 02401R6022622004 & 4/5 Expl. Substance Act and
25 Arms Act.
State
Versus
1. Noor Mohd. Tantray @ Peer Baba @
Gulzar Ahmed Bhat @ Uwais
s/o Abdul Khaliq Bhat
R/o VillDarganj Gund,
Tehsil, PS Tral, Distt. Pulwama J&K. Accused No.1.
2. Parvez Ahmed Mir S/o
Ghulam Mohiddin Mir
R/o Vill. Khanka Medoora,
Tehsil Tral, PS Avantipora,
Distt. Pulwama, J&K. Accused No.2.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 1
of 145
3. Farooz Ahmed @ Farooq Ahmed
S/o Ghulam Nabi
R/o Vill. Shahabad, Payeen Tehsil Tral,
PS Avantipora, Distt. Pulwama, J&K. Accused No.3.
4. RaeesuzZama S/o Shafique
R/o 390, Kaziwara, Sikandrabad,
Distt. Bullandshehar, UP. Accused No.4.
5. AtiqueuzZama s/o Shafique Ahmad,
Resident of 390, Kaziwara, Sikandrabad,
Distt. Bullandshehar, UP. Accused No.5.
6. Rajender Prasad Goel, s/o Kishan Lal,
R/o CP59, Pritam Pura, Delhi. (Prosecution withdrawn
Order dated 18.02.2005) Accused No.6.
Instituted on: 01.01.2004 & 02.07.2004 respectively.
Judgment reserved on: 20.12.2010
Judgment pronounced on: 03.01.2011
J U D G M E N T
1. The accused persons have faced this trial on the allegations that they being members of JaisheMohammad (JeM), a terrorist organization banned under Prevention of Terrorism Act, 2002 (POTA) had entered into a criminal conspiracy with SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 2 of 145 each other (and also with four others namely Rashid, Mohd. Sahid @ Zahoor, Habeeb @ Aslam and Khurshid Ahmed Butt, all said four others having since been killed in different encounters with security forces), in order to commit terrorist acts, to wage war against and to overawe the government of India by use of criminal force and, in pursuance thereof, having collected and concealed arms, ammunition and explosive substances and having received huge cash amounts from illicit sources intending that the same shall be used for the purposes of terrorism. They have also been charged in this prosecution additionally for offences under the Arms Act 1959 and Explosive Substances Act 1908, with corresponding penal provisions of POTA respecting illegal arms, ammunition and explosive substances that are stated to have been recovered from their respective possession.
2. The prosecution case, briefly put, is that in last few days of August, 2003, intelligence inputs were received about militants of JaisheMohammad (JeM) being engaged in supply of arms, ammunition and explosive material transported in wooden boxes of Fruits and Vegetables by trucks from Kashmir to Delhi, which vehicles were also being used to take back Hawala Money from Delhi to Kashmir for being used for terrorist activities. While the intelligence SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 3 of 145 Agencies are said to have been trying to follow up on these inputs, on 29/8/2003, upon a specific information about a truck bearing registration number "153" of J&K having reached Delhi with certain quantity of arms, ammunitions and explosives, efforts were made through a team headed by SI Govind Sharma (PW49) to locate the vehicle.
3. It was allegedly learnt that truck bearing No. "JK030153"
(hereinafter, "the truck") had actually entered the Fruit Market in Azadpur, Delhi at 2255 hrs on 28/8/2003. Since the truck could not be located inside the said market, extensive search was launched.
4. On 30/8/2003, at about 2.00 pm, SI Umesh Barthwal (PW33) is said to have located the said truck parked in Qutub Road parking lot. As per prosecution case, a team of police officers comprising, amongst others, of Inspector Hriday Bhushan (PW43) was deployed to keep a watch over the truck in secrecy, during the course of which one public witness (PW41 Sanjay Rai) was also joined.
5. It is alleged at about 7.45 pm (on 30/8/2003) a short statured person (later identified as accused Noor Mohd. Tantray) was seen approaching the truck and having a talk with the driver (later identified as accused Parvez Ahmed Mir) and the SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 4 of 145 cleaner (later identified as accused Farooz Ahmed) respectively of the truck. The said short statured person identified as Accused No.1 Noor Mohd. Tantray is described in the chargesheet as "Noor Mohd. Tantray @ Peer Baba @ Gulzar Ahmed Bhat @ Uwais s/o Abdul Khaliq Bhat r/o Vill Darganj Gund, Tehsil and PS Tral, Distt. Pulwama J&K, Age 31 Years" (hereinafter, "A1"). The said driver is described in the ChargeSheet as Accused No.2 "Parvez Ahmed Mir S/o Ghulam Mohiddin Mir R/o Vill. Khanka Medoora, Tehsil Tral, PS Avantipora,Distt. Pulwama, J&K. Age: 26 years"(hereinafter, "A2"). The cleaner is described in the charge sheet as Accused No.3 "Farooz Ahmed @ Farooq Ahmed S/o Ghulam Nabi r/o Vill. Shahabad, Payeen Tehsil Tral, PS Avantipora, Distt. Pulwama, J&K. Age25 Years"
(hereinafter, "A3").
6. It is alleged that A1, A2 and A3 boarded the truck, whereafter three wooden boxes kept in the tool box were taken out and one of them opened by A2 and A3 to be inspected by A1 and, thereafter, all the three boxes were handed over to the latter. As soon as the said three persons had come down from the truck, on suspicion, they were apprehended and questioned, upon which they revealed their respective identities as stated above. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 5 of 145
7. As per the prosecution case, the three wooden boxes unloaded from the truck were opened and checked and found to contain fruit named Babbugosha. These three wooden boxes, in the subsequent police proceedings, have been referred to as WB 1, WB2 and WB3 respectively. On careful inspection, it was found that while two wooden boxes did actually contain fruit only, one of them bearing green colour markings "* * * 31 BG IRFAN FRUIT GANTNUIN 45" also contained concealed, beneath the fruit, 10 hand grenades (later marked in police proceedings as HG1 to HG10), 10 grenades shells (later marked in police proceedings as GS1 to GS10) and one under barrel grenade launcher (later marked in police proceedings as GL1).
8. The recovered cache of weapons and explosive material were seized along with other articles (wooden boxes, fruit etc.) vide formal proceedings recorded at the spot. As per the charge sheet the fruit being perishable item would be disposed off after the requisite permission as per requirement of law.
9. The police case further is that A1 was subjected to cursory interrogation at the spot during which he allegedly revealed that the consignment of explosives and arms received by him was to be delivered to other persons (described as his SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 6 of 145 associates in Pakistan based Militant organization JeM) viz. Zahoor (of Pakistan) and Aslam @ Habib (of Sikandrabad, U.P) who were to meet him in front of Indraprastha Park on outer ring road, in the area of Nizamuddin, Delhi. It is stated in the prosecution case that A2 and A3, during interrogation, disclosed that they had brought this cache of arms and explosives on the same being given to them by one Khursheed Ahmed (resident of Kashmir) with instructions to pass on the same to A1 who they had contacted accordingly.
10.On the basis of broadly these facts, case FIR No. 70/2003 came to be registered for offences under Sections 121/121 A/122/123/120B of Indian Penal Code (IPC), Section 4/5 of Explosive Substances Act and Section 25 of Arms Act, in police station Special Cell, on rukka of Inspector Hriday Bhushan (PW43). The investigation, thereafter, is stated to have been carried out by Inspector Govind Sharma (PW49), the investigating officer (hereinafter, "the IO").
11.It may be mentioned even at this stage that subsequent investigation is stated to have brought out that the person named Khursheed from whom A2 and A3 allegedly received the instructions and consignment was also the owner of the truck and he came to be killed in a police encounter in J & K, SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 7 of 145 respecting which incident FIR No.177/2003, under Section 307 Ranbir Penal Code (RPC), and Section 7/27 Arms Act, PS Pampore (J & K) has been referred. The said Khursheed is mentioned at Serial number 4 in column no. 2 of the charge sheet.
12. As per the prosecution case, on the basis of disclosures made by A1, a team of police personnel set out at 9.15 PM in private cars and reached Indraprastha Park near Nizamuddin flyover at about 9.45 PM. It is alleged that the police personnel deployed themselves in the said area while A1 who had been taken along was kept at a safe distance, in the custody of the police officials. At about 10.45 PM, a Maruti Car bearing registration no. DL3C - N 8749 came from the side of Nizamuddin flyover and stopped in the parking of Indraprastha Park. From the said car, two persons allegedly alighted and stood nearby. They were challenged by the police and asked to surrender but instead of compliance the said two persons are alleged to have taken out weapons and started firing at the police party. It is stated that the police returned the fire in selfdefence, in the course of which both the said persons came to be injured.
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13. The prosecution alleges but A1 identified the said persons as Zahoor and Habeeb @ Aslam. On the basis of further investigation, the full identity of Zahoor is stated to have been ascertained and described in column no. 2 of the charge sheet as "Munna @ Sahid @ Zahoor s/o Ghulam Hussain R/o Hora Kalan, Tehsil Noorpur, Distt., Khosab, Pakistan". Similarly, on the basis of further investigation, the full identity of Habeeb @ Aslam is stated to have been ascertained and described in column no. 2 of the charge sheet as Rafiq uz Zama @ Habib @ Aslam S/o Safiq uz Zama R/o 390, Kaziwada, Sikandrabad, UP."
14. The said two injured persons Zahoor and Habeeb @ Aslam were removed to hospital; All India Institute of Medical Sciences (AIIMS) where they were declared brought dead. It is stated in the charge sheet that the identity of these two persons was further confirmed during later investigation by A2 and A3 who identified their dead bodies in the mortuary of AIIMS. The names of Zahoor and Habeeb @ Aslam find mention at serial no. 2 and 3 in column no. 2 of the charge sheet in the case at hand as two additional accused involved in this case but who have since died.
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15. From the dickey of the car in which the said "slain militants"
are stated to have come to Indraprastha Park, police claims to have seized one AK56 assault rifle, two magazines containing 60 rounds besides 7 rounds of .30 bore and cash Rs.2 Lakh.
16.FIR No. 445/03 dated 31/08/03 came to be registered in respect of the said incident at Indraprastha Park for offences under Section 186/353/307 IPC, Section 25/27 Arms Act and Section 3/4/20 of Prevention of Terrorism Act, 2002 (hereinafter, " POTA").
17. During the investigation by the IO, A1, A2 and A3 were interrogated at length. It is alleged that the interrogation brought out their links with JeM (JaisheMohammed), an organization banned under POTA. In the wake of these revelations, the provisions of POTA were invoked.
18. It is stated in the charge sheet that A1 had also disclosed involvement of two brothers of Rafique (one of the two persons who died at Indraprastha Park, in the incident which is subject matter of FIR No. 445/03), in militant activities of JeM, their particulars being given as "RaeesuzZama, S/o Shafique Ahmad" and "AtiqueuzZama s/o Shafique Ahmad", both residents of 390, Kaziwara, Sikandrabad, Distt. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 10 of 145 Bullandshehar, UP. It may be stated here that the said two persons namely RaeesuzZama and AtiqueuzZama have faced this trial as accused no. 4 (A4) and accused no. 5 (A5) respectively.
19. It is alleged by the prosecution that pursuant to the disclosure of A1 respecting A4 and A5, their house in Distt. Bullandshehar UP was raided in the course of follow up investigation on which, at their instance, certain incriminating material was seized. To be specific, the allegation is that A4 got recovered 18 electronic detonators while A5 got recovered 5 electronic detonators alongwith three remote control devices and cash Rs. 85,000/. The recovered items and money are stated to have been subjected to formal seizure and necessary follow up action taken regarding custody thereof.
20.It is alleged by the prosecution that during the investigation, at the instance of A1, premises in house no. A44, Mohindra Park, Azadpur, Delhi where he had been staying was searched which led to recovery and seizure of computer with its accessories, stereo cassette players, sets of Nokia, 10 channel cordless telephones, cash, Hawala money in the sum of Rs. 19.20 Lakh and certain documents.
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21. It is further the case of the prosecution that the investigation on the basis of disclosure made by A1, during interrogation, had brought out that A1 had received Rs. 20 Lakhs as Hawala money from one Rajender Prasad Goel, S/o Kishan Lal, R/o CP59, Pritam Pura, Delhi, on 27/08/03 on instructions received by the latter from one Sethi of Dubai. Rajender Prasad Goel was arrested in the case on 16/09/03 and was sent up for trial as accused no. 6 (A6).
22. Some international telephone numbers and satellite phone numbers figured in the investigation as contact numbers allegedly used by the accused persons to interact with their associates allegedly in Pakistan or other places abroad. Similarly, some Email addresses and IDs were also allegedly used for communication purposes. Though steps were taken to obtain details about their users from concerned quarters but nothing concrete in the shape of evidence has been collected or placed on record.
23. It is alleged in the Charge sheet that telephone numbers of mobile phones or landlines used by the arrested persons have been confirmed to have been in regular contact with each other from call details collected from the concerned phone service providers.
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24. The investigation is stated to have further brought out that A1 was acting under directions of one Rashid, described as a Pakistan National who was operating as Deputy Chief Commander of JeM, but who had been killed in an encounter with BSF/Police in J & K, which is subject matter of FIR registered in PS Safakadal, Sri Nagar J & K. The name of said Rashid is included at serial no. 1 in column no. 2 of the charge sheet of the case at hand.
25.The investigation is stated to have also brought out that A4 and A5, holders of Indian passports had gone to Pakistan on 13/09/2001 against valid Visas. While their entry into Pakistan is subject of formal records, there is no record what soever with the immigration authorities about their return to India.
26.The case property recovered during the investigation is stated to have been deposited in Malkhana of PS Special Cell. The hand grenades (HG1 to HG10) and grenade launcher (GL1) were examined in Central Forensic Science Laboratory (CFSL) and found to be "Live Ammunition" and "Firearm" respectively within the meaning of said expressions defined in the Arms Act. The remote control devices were found by CFSL to be in working condition and the detonator with remote control devices being capable to form components of SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 13 of 145 "Improvised Explosive Devices" (IED), and thus "Explosive Substances" within the meaning of the expression used in Explosive Substances Act, 1908.
27.It is the case of prosecution that A1 to A5 during investigation voluntarily offered to give confessional statements. On request being made to Sh. Ujjwal Mishra, Deputy Cmmissioner of Police ( DCP) and the said persons being produced before him, they allegedly reiterated there readiness to make confessional statements. Their confessions were recorded under Section 32 POTA on 9/09/03, whereafter they are stated to have been produced before Sh. T. S. Kashyap, Addl. Chief Metropolitan Magistrate (ACMM) when they confirmed the confessional statements regarding which proceedings were recorded.
28. On the basis of the investigation completed against the above backdrop, it has been alleged that A1 to A5 with the four persons mentioned in column no. 2 of the charge sheet (since deceased) were engaged in carrying out militant activities with intent to wage war against the Government of India to threaten the unity, integrity, security and sovereignty of India, to strike terror in the people and in a conspiracy wherein they were collecting deadly firearms, bombs, explosive substances SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 14 of 145 and illicit Hawala money, each of them being member of JeM, a terrorist organization.
29. On the strength of evidence in the aforementioned nature and sanctions under Section 196 of Code of Criminal Procedure, 1973 (CrPC), Section 50 POTA, Section 39 Arms Act and under Section 7 Explosive Substances Act, the trial of A1 to A6 was sought through the charge sheet filed on 7/01/2004, before the special court under POTA, indicating further investigation under Section 173 (8) of CrPC was continuing.
30. Subsequently, a supplementary charge sheet was filed on 2/07/04, mainly to bring on record the result of further investigation and to seek prosecution of A1 to A6 additionally for the offence under section 22 POTA.
31. After compliance with the requirements of law, particularly under Section 207 CrPC, my Ld. Predecessor considered the question of charge and passed a detailed order on 17/08/04. In terms of the directions in the said order dated 17/08/04. charges were framed against A1 to A5 for offences under Sections 3 (5) and 20 of POTA, section 3 (3) of POTA, Section 22 of POTA, Section 121 A IPC, Section 121 IPC, Section 122 IPC and Section 123 IPC. In addition, A1 to A3 were also charged for the offences under Section 25 Arms Act SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 15 of 145 and sections 4/5 of Explosive Substances Act. A4 was charged additionally under Section 4/5 Explosive Substances Act. A5 was similarly also charged additionally for offences under Section 4 POTA read with section 25 Arms Act and under Sections 4/5 Explosive Substances Act. Charge was framed against A6 for the offence under Section 22 POTA. Each of these six accused pleaded not guilty to the charges and claimed trial.
32.POTA Review Committee vide its order dated 20.01.2005, however, found that there was no prima facie case made out against A6. On the strength of the said order, A6 moved an application on 02.02.2005 on which my Ld. Predecessor vide his order dated 18.02.2005 found the case against A6 as withdrawn in terms of Section 2(3)(a) of POTA (Repeal) Act, 2004.
33.In the course of trial the prosecution examined 49 witnesses.
They are as under :
(i) ASI Raj Kumar (PW1) ;
(ii) Arbind Tosh Singh (PW2);
(iii) Deepak Gupta (PW3);
(iv) Sh. N. B. Bardhan (PW4);
(v) Sh. Rafiq Ahmad (PW5);
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16 of 145
(vi) Sh. Sanjay Wadhwa (PW6) ;
(vii) Sh. Mahesh Anand (PW7);
(viii) Sh. Sangeet (PW8);
(ix) Sh. Santosh Kumar (PW9);
(x) Smt. Veero (PW10);
(xi) Mohd. Sultan (PW11);
(xii) Sh. Rajesh Sethi (PW12);
(xiii) Sh. Ujjwal Mishra (PW13);
(xiv) Sh. Sanjay Kehar (PW14);
(xv) SI Om Wati (PW15);
(xvi) Sh. V. Ranga Nathan (PW16);
(xvii) Sh. Sunil Kumar Tyagi (PW17);
(xviii) Sh. B. N. Dass (PW18);
(xix) Sh. Jai Kishan Dahiya (PW19);
(xx) Sh. Hari Prakash Tyagi (PW20);
(xxi) Sh. Pawan Singh (PW21);
(xxii) Sh. Jyotish (PW22);
(xxiii) Sh. Ashish Bhandari (PW23);
(xxiv) HC Devender Kumar (PW24);
(xxv) HC Mohd. Abbas (PW25);
(xxvi) Dr. Mohd. Yasin Ganai (PW26);
(xxvii)Sh. Ghulam Mohd. Thokhar (PW27); (xxviii)Sh. Sanaullah Khanda (PW28);
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(xxix) Sh. Zahoor Ahmad (PW29);
(xxx) Sh. Bashir Ahmad Saifi (PW30);
(xxxi) SI Ranjan Kumar Sharma (PW31);
(xxxii)Inspector Ambesh Chand Tyagi (PW32); (xxxiii)SI Umesh Barthwal (PW33);
(xxxiv)Sh. Ratan Singh (PW34);
(xxxv)Inspector Arvind Kumar (PW35);
(xxxvi)Sh. T. S. Kashyap (PW36);
(xxxvii)Sh. Subhan Mirza (PW37);
(xxxviii)ASI Paramjit Singh (PW38);
(xxxix)ASI Rakesh Ahluwalia (PW39);
(xl) Inspector Badrish Dutt (PW40);
(xli) Sanjay Rai (PW41);
(xlii) SI Dharmendra Kumar (PW42);
(xliii) Insp. Hriday Bhushan (PW43);
(xliv) Sh. A. Dey (PW44);
(xlv) HC Ali Mohd. (PW45);
(xlvi) Sh. Ashok Chand (PW46);
(xlvii) Mr. J. K. Dadoo (PW47);
(xlviii)Sh. Har Bhagwan (PW48);
(xlix) Inspector Govind Sharma (PW49);
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34.PW3 was a witness relating to A6. His evidence has become irrelevant on the prosecution against the said accused having been dropped.
35. It may be mentioned here that ACP Rajbir Singh posted at the relevant time in Special Cell of Delhi Police was also involved at various stages of the developments leading to the registration of this case and in the follow up investigation and was cited as one of the witnesses for prosecution. He, however, died before he could be examined in this case.
36. After the prosecution evidence had been closed, the statements of accused persons were recorded in which they denied the prosecution evidence and claimed to be innocent. They declined to avail of the opportunity to adduce evidence in defence.
37.I have heard arguments on both sides. I have gone through the record.
38.The facts and circumstances leading to the alleged recovery of illicit ammunition and Explosive substances from, and arrests of, A1 to A3 on 30/08/03 are unfolded for the prosecution through the mouth piece of SI Umesh Barthwal (PW33), ASI Rakesh Ahluwalia ( PW39), Public witness Sanjay Rai (PW SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 19 of 145
41), SI Dharmender Kumar ( PW42) and Inspector Hriday Bhushan (PW43).
39. PW43 Inspector Hriday Bhushan was posted in Special Cell of Delhi Police in August 2003. He deposed that sometime in the end of August 2003 intelligance inputs were received that militants belonging to JeM, a terrorist outfit had been using trucks to supply Arms, Ammunition and Explosives sealed in wooden fruit boxes transported from J & K to Delhi and also that the said trucks were also being used to take back, from Delhi to J & K, Hawala money for purposes of terrorism. According to him, the information was tried to be developed through sources and with the help of Central Intelligence Agencies.
40. As per PW43, the information was received from Central Intelligence Agencies on 29/08/03 that a truck bearing registration number of J&K with digits "153" had entered Delhi with huge quantity of Arms, Ammunition and Explosives. In this regard, a team led by PW49 was sent to Azadpur fruit market so that the truck could be located. PW 49 SI Gobind Sharma learnt from computer records of the entry gate of the market on the same day that a truck bearing registration number JK 030153 had entered Azadpur fruit SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 20 of 145 market at 2255 hours on 28/08/03 but it was not found within the market area. He passed on this information to PW43 Inspector Hriday Bhushan whereafter a search was launched for the truck in permanent truck parking places in Delhi. PW 49, as indeed PW33 SI Umesh Barthwal, PW39 ASI Rakesh Ahluwalia corroborates the word of PW43 in this regard.
41. PW33 SI Umesh Barthwal also posted in Special Cell, alongwith ASI Rishi Pal was one of the teams of police officials who were deployed on the task of tracing out the said truck. It is testified by PW33 that on 30/08/03 he was briefed by ACP Rajbir Singh about the above mentioned background and given the necessary instructions, pursuant to which he with ASI Rishi Pal had gone to Central District. He deposed that at about 2 PM he had found the truck bearing registration number JK 03 0153 (the truck) stationery in the Qutub Road parking of Sadar Bazar, Delhi. He immediately informed his superior officers and then kept a watch over the truck.
42. PW15 was posted as Duty Officer in Special Cell( New Delhi Range), Lodhi Colony, New Delhi on 30.08.2003. She proved Ex PW15/A as the copy of DD No. 7 recorded by her at about 2.00 pm. respecting the message received by PW43 SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 21 of 145 from PW33 respecting the truck having been located in the parking of Qutub Road, Sadar Bazar.
43. Pursuant to his information the police party comprising of PW43, Insp. Hriday Bhushan and others reached the Qutub Road parking at about 3.15 PM. The police team led by PW 43 included PW39, ASI Rakesh Ahluwalia, who corroborated the word of former in this regard. PW15 duty officer in Special Cell on 30.08.2003 also proved the departure entry vide DD No. 8 as per the copy Ex PW15/B recorded by her around 2.45 pm. when PW43 with other Police Officials left for the parking lot of Qutub Road, Sadar Bazar.
44.PW17 is a clerk in APMC, Azad Pur, Delhi. He proved Ex PW17/A as a original entry pass dated 28.08.2003 respecting entry of the truck into the market of APMC at Azad Pur. He also proved Ex PW17/B as the certificate of its verification on the basis of office record.
45.PW34 is employed as InCharge of Railway Truck Parking at Qutub Road, Sadar Bazar, Delhi, on contract with Hindustan Trading Company, which provides round the clock parking facilities for vehicles/trucks. He proved Ex PW34/A as the SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 22 of 145 parking slip bearing ticket no. 002364 dated 30.08.2003 respecting the truck.
46. PW43 has further testified that when he had reached the Qutub Road parking at about 3.15 PM and had met PW33, the latter had showed him the truck. He alongwith PW33 made efforts to join public witness in the raiding party. For this purpose, 8 to 10 persons were asked but no one agreed to do so except one individual namely PW41, who was present in the parking of Tonga Stand on Qutub Road, Sadar Bazar. PW41 confirms the factum of he having been joined as a witness by the raiding police party and informed about the presence of some terrorists in the said vehicle.
47. PW43 deposed that he had briefed the police staff and the raiding party and thereafter, kept further surveillance over the truck. According to him, at about 7.45 PM one short statured person was seen to coming towards the truck and then talking with its driver and cleaner. He identified A1 as the short statured person and A2 & A3 as the driver and cleaner respectively of the truck. His evidence in this regard finds corroboration from the statements of PW33, PW39 and PW
41. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 23 of 145
48.PW43 has further deposed that after some talk all the three accused (A1 to A3) had climbed on to the truck and then had brought out three wooden boxes from the tool box situated at the top of the truck. One of the said boxes was opened and A 1 inspected its contents. Thereafter, the three wooden boxes were brought down from the truck and all three accused alighted, at which stage the police party swooped in and apprehended the three persons with the said boxes in their possession, the word of PW43 in this regard is echoed by PW33, PW39 and PW41.
49. PW43 corroborated by PW33, PW39 and PW41, has testified in detail the facts about the recovery of Arms, Ammunition and Explosives from A1 to A3. PW33 deposed that upon being opened and checked, the said three boxes were found to contain fruit (Babbugosha), with one of the said boxes also found to contain 10 hand grenades, 10 grenade shells and one under barrel grenade launcher, all concealed within the layers of fruit with the help of straw and newspapers. The wooden box from which the said Arms, Ammunition and Explosives were recovered was bearing green colour marking with description "31 *** BG Irfan fruit gantumin 45". The other two boxes which contained only the SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 24 of 145 fruit had slightly different marking printed thereon. The box which contained contraband items has been referred in the police proceedings as WB3 while the other two boxes were referred as WB1 and WB2 respectively. These boxes have been produced in evidence wherein they were assigned exhibits PX22, PX23 and PX24 respectively.
50. PW33, stated in his evidence that the 10 hand grenades (H.G) were kept in 10 separate plastic jars, each jar containing one hand grenade padded with the help of cotton and being marked as HG1 to HG10. Similarly, the 10 grenade shells were also kept in 10 separate plastic jars and given marking as GS1 to GS10, while the grenade launcher was sealed in a cloth parcel and given marking as GL1. These recovered items are stated to have been subjected to seizure through a formal seizure memo and later deposited in the Malkhana, to be subsequently sent for examination and opinion to CFSL. It has come in the evidence of other witnesses that the explosive substance were defused in due course, where after, the remnants were again kept in Malkhana for safe custody, each item preserved separately in the manner originally sealed.
51. The 10 grenades, marked as HG1 to HG10, kept in separate plastic jars were produced in the course of the statement of SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 25 of 145 PW33 by the MHCM, each bearing the seal of ADEY, SSO 1 (Ball), C.F.S.L, CBI, New Delhi, to be given exhibits PX1 to PX10. Similarly, the 10 grenade shells marked as GS1 to GS10 in the police proceedings kept in the separate plastic jars were produced in the course of the statement of PW33 by MHCM, bearing the seal of NB, SSO1 (Ball) C. F. S. L, CBI, New Delhi, exhibits PX11 to PX20. The grenade launcher marked as GL1 in the police proceedings was also produced during the statement of PW33 by the MHCM, in an envelope bearing seal of NB, SSO1 (Ball) C.F.S. L, CBI, New Delhi and was given exhibit PX21.
52.PW33, PW39, PW41 and PW43 deposed in corroboration that exhibits PX1 to PX21 were recovered from wooden box Ex.PX24 which was one of the three boxes (the other boxes being Ex.PX22 and Ex.PX23) containing fruits which were taken out by A2 and A3 from the tool box of the truck and handed over to A1. In the sequence of events narrated as above, these witnesses had deposed that the items recovered were put into separate cloth parcels and each parcel was separately sealed with the seal of HB (of PW43) and CFSL form was also filled up by PW43. They further testified that the three wooden boxes containing fruits were taken into SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 26 of 145 police possession vide seizure memo Ex.PW33/B while the Arms, Ammunition and Explosives as aforesaid were seized vide memo Ex.PW33/A. It is further in the statement of these witnesses that the seal of HB used for the purpose of sealing the recovered articles, after use was handed over to the public witness PW41 for safe custody. The seizure memos are in the hand and under signatures of PW43 and also signed by witnesses PW33 and PW41 who confirmed these facts during their respective statements.
53. While ACP Rajbir Singh had led the police contingent to Nizamuddin area, for followup action, in the wake of the disclosure made by A1, respecting the intended recipients of the arms and explores, PW43 had continued with his formal action respecting the recoveries made from the Truck at Qutub Road Parking. PW43 proved his rukka Ex.PW43/A in that regard which he had dispatched to P.S. Special Cell Lodhi Colony at 11 PM at 30.08.2003. PW39 confirmed that he had taken the rukka, on which the FIR was registered. Copy of FIR has been proved by PW1 ASI Raj Kumar vide Ex.PW1/A. The seizure memo Ex.PW33/A and Ex.PW33/B prepared by PW43 Inspector Haridya Bhushan relate to recoveries made from the possession of A1 and A3. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 27 of 145
54. PW49 along with PW33, PW42 and PW35 had returned to Qutab Road Parking after the interrogation at Hazarat Nizamuddin in which two persons came to be killed. On their return, PW43 handed over the matter for investigation to PW49. During the course of investigation by PW49 Inspector Govind Sharma, he prepared siteplan Ex.PW43/DA depicting the place from where recoveries were made of arms and explosives from the possession of A1 and A3 after they had brought down the fruit boxes from the Truck.
55. PW49 has proved through his testimony that he had arrested A1, A2 and A3 vide arrest memos Ex.PW35/H, Ex.PW35/G and Ex.PW35/F respectively, after personal search had been taken vide memos Ex.PW35/P, Ex.PW35/N and Ex.PW35/M respectively. He also proved Ex.PW34/A as the parkingslip dated 30.08.2003 in respect of the Truck seized from the possession of A1 regarding which seizure memo Ex.PW35/A was prepared. His evidence in this regard is corroborated by PW35 and PW42 who are signatories to the said seizure memo. PW49 also proved Ex.PW35/D as the seizure memo vide which he had taken the Truck with its accessories and documents in his possession. His evidence in this regard is confirmed and corroborated by PW35. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 28 of 145
56. A1, A2 and A3 were, thereafter, interrogated. As per PW9 they made detailed disclosures. Disclosure statements of A1, A2 and A3 have been proved by him as PW35/C, Ex.PW35/D and Ex.PW35/E respectively. His evidence in this regard finds support from the statements of PW35 and PW
42.
57.The investigating officer probed the ownership of the truck. In this context, a number of witnesses have been examined. AW26 testified that he had purchased the truck in August 1995 and had got it registered in the month of September 1995 vide registration no. JK030153. The truck was purchased jointly with his three other relatives. The said co owners, according to PW26, had sold the truck to PW27 in June 1996 against consideration. He testified that he had given the original registration certificate (RC) with other documents but the receipt was missing. PW27 confirmed having purchased the truck from PW26 in June 1996. He stated he had sold the said truck in November 1999 to PW30 for consideration and had passed on the original RC with other documents to him.
58. PW30 in turn, also confirmed the transaction with PW27 and further deposed about selling the truck to PW28. PW28, SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 29 of 145 on his part, further confirmed having purchased the truck in May 2000 from PW30 for consideration. He also testified that he had sold the same on 27.11.2002 to Khurshid Ahmed Butt for Rs. 4,50,000/ handing over the same along with documents including RC but the said purchaser could not get it transferred in his name. This sale is confirmed by PW29 who deposed having mediated the sale transaction. He proved the agreement executed by purchaser Khurshid Ahmed vide Ex.PW29/B, the Hindi translation of Mark A.
59. The last purchaser Khurshid Ahmed Butt is stated by the prosecution to be a terrorist who was killed in J&K. The prosecution has adduced evidence about the death of said person through PW 45, MHCR in PS Pampore, Distt. Pulwama (J & K) who produced copy of FIR no. 177/03 u/s. 307 Ranbir Penal Code (RPC), Section 7/27 Arms Act of P.S. Pampore, Awantipora (J&K) along with certificate of death of Khurshid Ahmed Butt S/o. Mohd. Safi Butt (resident of village Darangbal Pampore, Distt. Pulwama, J&K). The documents produced by the said witness do show that the said Khurshid Ahmed Butt had died in the area of village Krenchhool, Distt. Pulwama on 14.12.2003, in an encounter with security forces which was subject matter of the SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 30 of 145 aforementioned FIR. Name of Khurshid Ahmed Butt was thus shown at serial no.4 in column no.2 of the chargesheet.
60.As per PW49, A1 was further interrogated on 01.09.2003 during which statement, he made a supplementary disclosure as per Ex.PW49/A. PW49 is a signatory to the said document and stated that it was prepared in his presence by the ACP Rajbir Singh (since deceased) upon the disclosure made by the accused. Noticeably, in the supplementary disclosure statement inter alia offered to get the other accomplices apprehended.
61. A1 during his interrogation had also made disclosure statement vide Ex.PW35/C which has been referred to earlier. In these disclosure statements he is shown to have indicated his connection with one Rashid, described as a Pakistan National who was active at the relevant time as second Chief of one Ghazi Baba of JeM. As per the disclosure statements A1 had been running errands for the said Rashid, including for transporting arms, ammunition and explosive substances form J&K to Delhi for terrorist activities. As per the evidence of PW49, the said Rashid, Pakistan National, had died in encounter with BSF in J&K and during investigation A1 identified the photograph of said slained militant vide memo Ex.49/B on 03.09.2003. PW45, MHCR SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 31 of 145 from P.S. Safa Kadal, Sri Nagar, J&K produced documents pertaining to case FIR no. 140/2003 P.S. Safa Kadal, Sri Nagar, including certificate Ex.PW25/C, FIR Ex.PW25/D, Chargesheet Ex.PW25/E, another copy of FIR Ex.PW25/B and complaint Ex.PW25/A.
62. As per the prosecution case, during investigation, evidence was collected inter alia about the stay of A1 in Delhi and activities in which he had been engaged.
63.PW10 is the owner of house no. A44, Mahender Park, Azad Pur, Delhi. She deposed about she having given the ground floor of her said property on rent at Rs. 2,000/ per month to one Abdul Jabbar, who used to work in Sanajy Gandhi Transport Nagar. She identified A1 as a person, who used to visit her tenant Abdul Jabbar to meet him and one Mohd. Sultan, also a regular visitor.
64. PW11 Mohd.Sultan is a resident of District Baramulla, J & K. He testified that he used to work as Manager in Sada Bahar Transport Company, located at AG24, Sanjay Gandhi Transport Nagar, which is owned his relative Abdul Jabbar. He deposed that he is acquainted with Khurshid Ahmed, also a resident of J & K and who worked as conductor on Goods Transport Vehicles coming from Kashmir to Delhi. PW11 SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 32 of 145 claimed that he was residing at rent of Rs. 2,000/ as a tenant in the house of PW10 and he was introduced by Khurshid Ahmed to A1 as a cousin brother. PW11 testified that on 24.08.2003, A1 had come to him and told him that his truck was coming from Kashmir and he had to make purchases of a computer for his brother and some decks for his shop. As per PW11, A1 had stayed with him for two days and had purchased some phones and decks from Lajpat Rai Market on 28.08.2003, when he had accompanied him for the purpose. According to PW1, the accused did not have any money with him on 24.08.2003 and had told him that he had to collect the money from the market, but when he went to the market on 28.08.2003, he was carrying money. As per the prosecution the person named Khurshid referred to by PW11 is none other than the owner of the truck, since killed and mentioned at Sl. No. 4 in Column No. 2 of the Charge Sheet.
65. PW49 has deposed that on 31.8.2003, A1 had led the police party to A44, Mahindra Park, Azadpur, Delhi and got recovered cash Rs. 19,20,000/ in the denomination of currency notes of Rs. 500/ besides one computer monitor, other accessories, Nokia handset, speakers etc. which were seized by the IO ACP Rajbir Singh vide memo Ex. PW 49/D. This seizure memo was also attested by witnesses Inspector SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 33 of 145 Mool Chand Sharma and SI Mehtab. Both the said police witnesses and ACP Rajbir Singh have since died. PW49 confirmed that the document bears their respective signatures. During the statement of PW49, the money of the value of Rs. 19,20,000/, (in the form of 38 packets, each containing 100 currency notes with 40 loose currency notes, all of denomination of Rs. 500/ each) were proved vide Ex. PX1 (collectively), along with the other articles vide Ex. PX2 (collectively).
66. PW49 has deposed that on 06.09.2003, A1 had led the IO to the premises of Champion Peripherals Pvt. Ltd, Madhubhan, Nehru Place, from where he had purchased computers and accessories, the bill copy in which respect vide Ex PW 6/P was seized vide memo Ex PW 6/A. Evidence in this regard is corroborated by PW6 and PW7, owner and sales executive respectively of the said shop. These witnesses identified A1 as the customer, who had purchased the computer system from their shop on 28/08/2003. They also confirmed that A1 had brought the Police to their shop and pointed the same out as the place of procurement of said equipments by him. Pointing out Memo Ex PW7/A, was also proved in this respect.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 34 of 145
67. PW49 further testified that A1 had led him to shop no. 3738, Neta Ji Subhash Marg, Darya Ganj, from where he disclosed to have purchased mobile phone. Documents in this regard were seized vide seizure memo Ex 12/D, and include copy of the bill Ex 12/A and copy of register indicating purchase of SIM card vide Ex 12/B and Ex 12/C respectively. His evidence in this regard is corroborated by that of PW12, who is manager in the shop styled as Manoj Cell Page. This witness identified A1 by the name of Gulzar and confirmed that it was A1, who had made the said transaction, which pertained to mobile telephone no. "9811489261". The entries in his record Ex 12/B show the SIM card sold to A1 was bearing no. "00010366442". PW12 also proved Ex 12/C, which shows A1 had also purchased another mobile connection vide no. "9811938271" corresponding to SIM No. "20005606321". The witness also proved Ex 12/E as the pointing out memo prepared on the date of visit of A1 with the Police including PW49 to his shop.
68.PW49 has further deposed that A1 had led him and the other members of the investigating team to shop no. 725A, Lajpat Rai Market and pointed out the said place as one from where he had purchased " Deck", the payment being made in cash. Pointing out memo Ex PW8/B bears the signatures of PW8, SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 35 of 145 who is salesman in the said shop. The said witness, when examined, pleaded want of memory and refused to identify A 1 as a customer, who had made any such transaction from his shop.
69.PW49 has further testified that A1 had led him to shop no.
809, Lajpat Rai Market and pointed the said place as the one from where he had purchased Nokia long range cardless set. PW9 admitted his signatures on the pointing out memo Ex PW9/A, but was not very confident about identity of A1 as such earlier customer and only testified that the customer was a shortstatured person, who looked like A1.
70. PW49 further deposed that A1 had led him to Mirza Guest House, 776, Jama Maszid Delhi and pointed out the place, where he had stayed for some period. PW37 is the owner of the said Guest House. He confirmed the word of PW49 in this regard and stated that he had handed over to ACP Rajbir Singh. The copies of the relevant record vide seizure memo Ex PW37/A. According to PW37, the accused is known to him by the name of Gulzar Ahmed son of A. Khalik, District Pulwama, J & K, who had stayed in the Guest House eleven times. He proved on the basis of original Guest House register, as per copies of Ex PW5/B1 to B22, the signatures SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 36 of 145 recorded by A1 respecting his stay in the said Guest House at point X1 on page no. 45, point X1 on page 53, at point X2 on page 62, at point X3 on page 63, at point X4 on page 71, at point X5 on page 80, at point X6 on page 84, and at point X7 on page 98.
71. According to PW49, A1 had also led the Police to Seema Lodge, at 3745, Chooriwalan, Chawri Bazar, Delhi, where he had stayed for certain duration. His evidence based on seizure memo Ex PW5/A, whereby copies of the relevant record of the lodge were taken in possession is corroborated by the statement of PW5, who has been Manager in the lodge since 1975. The photocopies of the relevant registers of this lodge are Ex PW5/B1 to B22, which contain two entries respecting stay of A1 in the lodge from 16.03.2003 to 18.03.2003 and from 23.03.2003 to 25.03.2003 at Sl. No. 1336 and 1356 on pages 152 and 154 respectively of the register. PW5 confirmed A1 to be the said guest of the lodge.
72. PW43, after recovery of the aforesaid Arms, Ammunition and Explosives from the possession of A1 to A3 at Qutab Road parking had informed the senior police officers at about 8/8.15 PM, pursuant to which communication, other officers of the Special Cell, including ACP Rajbir Singh (since SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 37 of 145 deceased), PW42 SI Dharmender Kumar and PW49 Inspector Govind Sharma reached the spot at about 8.45 PM. These witnesses deposed that, on arrival, ACP Rajbir Singh had interrogated A1, A2 and A3 who disclosed their identity and their connection with JeM. It is stated by PW33, PW43 and PW49 that A2 and A3, during preliminary interrogation at the spot, had disclosed that they had brought the consignment on the directions of one Bashir who was owner of the truck and had handed over the same to A1 as per instructions. On the other hand, A1 also disclosed upon interrogation that he was to further hand over this consignment to two militants having connections with JeM, namely Zahoor, a PAK National and Aslam @ Habeeb of Sikandarabad, UP, in front of Millennium Park, Nizamuddin. These witnesses have further deposed that on this information being ascertained through disclosures of A1, ACP Rajbir Singh accompanied by other police staff including PW33, PW42 and PW49, with A1 in the custody of ACP Rajbir Singh had set out for the said place where A1 was expected to meet the two suspected militants for the purpose of handing over the consignment.
73. ASI Rajbir Singh who led the police party to Hazarat Nizamuddin with A1 in his custody, has expired. Three SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 38 of 145 witnesses have been examined by the prosecution to bring on record the sequence of evidence at Hazarat Nizamuddin in the wake of the disclosures attributed to A1. These witnesses are PW33 (SI Umesh Berthwal), PW35 (SI Arvind Kumar, now an Inspector) and PW49 (SI Govind Sharma, also now an Inspector).
74. According to PW33, the police party led by ACP Rajbir Singh had left the Sadar Bazar parking at about 9.15 PM and had reached Inderprastha Park, Outer Ring Road, New Delhi, the place pointed out by A1 at about 9.45 PM. PW33 states that ACP Rajbir Singh had requested public persons but no one joined in the investigation. Thereafter, he had deployed police personnel at different strategic points after a survey of the area. A1 was kept at a distance in the safe custody of HC Vikram and Satender. According to him, at about 10.45 PM, one Maruti Car bearing no. DL 3 CN 8749 had come from the side of Nizamuddin and stopped near the gate of Inderprastha Park, Outer Ring Road, Delhi, from which two persons alighted and started waiting. PW3 testified that ACP Rajbir Singh, after announcing the presence of the police party had asked the said persons to surrender themselves to the custody, but instead of doing so, both the said persons had opened fire at the police party. PW33 deposed that the police party, in SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 39 of 145 selfdefence, and also in order to apprehend the said persons had opened fire and, in the encounter which ensued, the said persons were injured to be later removed to hospital by PCR vehicle.
75.PW35 is stated to have reached Qutub Road parking, Sadar Bazar with ACP Rajbir Singh at about 8.45 PM on information about PW43 having apprehended some terrorists with arms and Ammunition at the said place. He corroborated the evidence of PW33 and others about ACP Rajbir Singh having interrogated A1, A2 and A3 and about A1 during interrogation having disclosed about the intended delivery of the contraband to two persons named Jameer and Habib @ Aslam at Millennium Park near Nizamuddin Bridge. He also stated that he had accompanied the police party headed by ACP Rajbir Singh, leaving Qutub Road Park at about 9.15 PM and reaching Millennium Park at about 9.45 PM. He also testified about ACP Rajbir deploying police members at different positions and about Maruti Car coming to the said place at about 10.45 PM from the side of Ashram at Ring Road and stopping at the place from which two persons had alighted. He deposed about the said persons having been asked to surrender but opening fire at the police party which SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 40 of 145 fired in retaliation in which the said two individuals got injured.
76. PW49 has also testified about he being a member of the police party that saw action at Hazarat Nizamuddin and deposed that the persons who had come there for taking the delivery of the contraband arms and Ammunition were killed in cross firing.
77. As mentioned earlier, the incident at Hazarat Nizamuddin was a subject matter of a separate FIR no. 445/03 dt. 31.08.2003 under Sections 186/353/307 IPC, Sections 25/27 Arms Act and Sections 3/4/20 POTA of P.S. Hazarat Nizamuddin. PW 24 HC Davender Kumar proved copy of this FIR as Ex.PW24/A and testified that the case had been sent untraced vide order dt. 30.07.2007 of the Court of Metropolitan Magistrate. He also proved copy of seizure memos Ex.PW24/B and C and copies of postmortem reports of the two said persons who had died as result of injuries sustained in the police firing, vide Ex.PW24/D and E respectively. His evidence confirms the fact that the said persons were carrying fire arms and had sustained fire arms injuries, admittedly at the hands of the police.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 41 of 145
78. PW2 Ct. Arbind Tosh Singh was deputed in connection with the case FIR no. 445/03 dt. 31.08.2003 under Sections 186/353/307 IPC, Section 25/27 Arms Act and Section 3/4/20 POTA of P.S. Hazarat Nizamuddin at mortuary of AIIMS where the deadbodies of the two persons who died in exchange of fire with police had been kept. PW2 testified on the strength of memos Ex.PW2/A and B that on 31.08.2003 in his presence A1 and one more accused had been brought to the mortuary by ACP Rajbir Singh and in his presence A1 had identified them. As Rafiq @ Habib @ Aslam resident of Sikandrabad, U.P and Jahur resident of Pakistan. Ex.PW2/B shows that the other person who identified the deadbodies similarly at the same place was A4.
79.As per the prosecution case, A1, during his interrogation on 31.08.2003 before PW49, had also made a disclosure to the effect that one Rafique @ Guddu R/o. 390 Kajiwara, Sikendrabad, U.P. and one Atique, brother of Rafique @ Habib @ Aslam, had earlier received a bag containing AK56 (firearm), Magazines, pistols & Magazines, Detonators, Remote Control Devices (RCDs) etc. This revelation, coming in the disclosure statement Ex.PW35/C, was followed up by ACP Rajbir Singh by raiding the house of A4 and A5 in Sikenderabad, U.P. on 31.08.2003. Prosecution has produced SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 42 of 145 PW31 and PW32 as the witnesses to the said action in the other State.
80. PW31 has testified that ACP Rajbir Singh with his staff had come to police station Sikendrabad U.P., where PW31 and PW32 were posted as SubInspector and SHO on 31.08.2003. According to the witness, ACP Rajbir Singh had arrived at 6 AM and had briefed the two witnesses who joined in the investigation. As per these two witnesses, a raid was carried out in house no. 390 Sikendrabad, the door of which was got opened whereupon two young persons came out, these witnesses identifying A4 and A5 as the said two persons.
81. PW31 and 32 deposed that, upon interrogation, A4 and A5 had made disclosures above they having undergone training for Jehad and terrorist activities in Pakistan and about their return from there and their connection with JeM. These accused persons are also stated to have made disclosure about they having received arms, ammunition and money for terrorist activities from Rafique @ Guddu. These disclosures are not shown to have lead to discovery of any fact and therefore not admissible, the same being hit by the provisions of Section 24 to 26 of Evidence Act.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 43 of 145
82. PW31 and 32 testified that A4 had led ACP Rajbir Singh to one bedroom of his house at the ground floor and from the Parchhatti thereof, he got recovered one white colour polythene which, on being checked, was found to contain 18 electronic detonators. As per the witnesses, the said electronic detonators were kept in one plastic jar and sealed to be converted into a parcel sealed with the seal of MCS which articles were taken into police possession vide seizure memo Ex.PW31/B. These electronic detonators were later sent to CFSL for examination and opinion. During the statement of PW31, the sealed parcel bearing seal of "N.B.B., C.F.S.L., CBI, New Delhi" was produced. The parcel was opened and the witness proved its contents, namely the 18 electronic detonators (Ex.P1, Colly.), the plastic Jar (Ex.P2) as the items seized in his presence on being recovered at the instance of A4 with the white cloth piece (Ex.P3). PW32 corroborates his testimony in this regard.
83.PW31 further testified that A5 led ACP Rajbir Singh to another room adjacent to the kitchen on the ground floor and, from there, from out of one steel alimirah, he had got recovered one gray coloured printed cloth bag which, on checking, was found to contain 05 electronic detonators, 3 RCDs (Remote Controlled Devices) and Rs. 85,000/ in cash SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 44 of 145 in denomination of 1 packet of currency notes of Rs. 500/, three packets of currency notes of Rs. 100/ and 1 packet of currency notes of Rs. 50/. As per the witness the five detonators were kept in a plastic jar and sealed and converted into a cloth parcel and marked AD1. The cash and the other articles recovered were seized vide memo Ex.PW31/A. The three RCDs were converted into cloth parcels and marked AR1, AR2 and AR3. The sealed parcels were sealed with the seal of MCS.
84.During the statement of PW31, the sealed parcels mark AD 1, AR1, AR2 and AR3 each bearing seal of "N.B.B., C.F.S.L., CBI, New Delhi" was produced. The parcels were opened and the witness proved their contents, namely the 05 electronic detonators (Ex.P4, Colly.), the three RCDs (Ex.P 5 to Ex. P7) and currency notes (Ex.P8 Colly.) of the total value of Rs. 85,000/.
85.PW31 and PW32 testified that A4 and A5 were arrested and proved the memos Ex.PW31/C and Ex.PW31/D as the personal search documents prepared at that time. These witnesses are signatories to these memos.
86. As per the prosecution case, A4 and A5 after arrest and aforementioned recoveries were interrogated by ACP Rajbir SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 45 of 145 Singh. PW40 Inspector Badrish Dutt deposed that interrogation was done in his presence and as result of the same A4 and A5 had made disclosures which were recorded vide Ex.PW40/B and Ex.PW40/A respectively. These disclosure statements of A4 and A5, are shown to have led to revelation about both the said brothers having gone to Pakistan on 13/14.09.2001. This information collected from these accused persons is shown by the other evidence to have led to discovery of the fact that these persons had failed to return to India through normal channels or ports of entry from Pakistan and thus seem to have stayed in that country illegally over a prolonged period of time till their presence in India came to be discovered pursuant to A1 leading the police agencies to them. The disclosure statements attributed to A4 and A5 also contain narration about their involvement with the terrorist elements on Indian soil or in Pakistan. But since the investigating agencies could not uncover direct connecting/corroborative evidence in such regard, that part of the disclosure statement will have to be excluded from consideration because of the restrictions contained in Section 25 of Evidence Act. None the less, the disclosures about exit from India to Pakistan around 13/14.09.2001 having led to discovery of illegal stay in that country is a circumstance SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 46 of 145 which is incriminating and the disclosure statements to that extent are admissible.
87. The investigating agency probed the disclosure about visits of A4 and A5 to Pakistan. In this regard, evidence coming through the statements of PW18, PW19 and PW20 has been relied upon.
88. PW18, Superintendent in Passport Office, Ghaziabad, UP proved Ex PW18/A as the letter dated 29.09.2003 sent under the signatures of the then Superintendent, Passport Office to DCP (Special Cell), Delhi in response to his letter received on 29.09.2003, whereby documents Mark A (Copy of photograph), Mark B (Copy of school certificate), and Mark C (Copy of ration card) were sent. These documents relate to A
5.
89. PW19 is an official of Regional Passport Office, Bhikaji Cama Place, New Delhi. He proved Ex PW19/B as the letter sent under the signatures of Superintendent ( Policy) of Regional Passport Office, in response to letter dated 25.09.2003 of DCP (Special Cell), Delhi, whereby it was confirmed that Indian Passport No. A7583149, dated 07.06.1999 was issued in favour of A4, giving his address as resident of House no. 911, Street No. B18, Sri Ram Colony, SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 47 of 145 Gokul Puri, Delhi. Copy of the Index Card respecting the said Passport was also proved by him as Ex PW19/C.
90. PW20 was working as Immigration Officer in the Bureau of Immigration, at Attari Rail Counter, Amritsar, Punjab. On the basis of register maintained at the exit and entry point counter, he proved the exit entries vide Ex PW20/A, at Sl. No. 888 dated 13.09.2001 in respect of A5 from Attari (India) into Pakistan, against Passport No. A8527859 dated 22.12.1999, on the basis of visa no. 253561 dated 05.09.2001 for visiting Karachi in Pakistan. PW20 further proved exit entry vide Ex PW20/B at Sl. No. 717 dated 13.09.2001 in respect of A4 from Attari (India) into Pakistan against Passport No. A7583149 dated 07.06.1999 on the basis of visa no. P253563 dated 05.09.2001 for visiting Karachi in Pakistan.
91.PW20 deposed that as per the record of his office both the said persons had not returned from Pakistan through Attari border. He proved Ex PW20/C as the report given in this regard.
92. In their statements A4 and A5, when confronted with in above nature, conceded the facts alleged by the prosecution to be true. They admitted that they as holders of Indian Passports SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 48 of 145 referred to above had gone to Pakistan having together entered the said country from Attari border on 13.09.2001. They also admitted the evidence that they had failed to return to India through lawful channels. Their explanation in their respective statements for such conduct is that they had gone to Pakistan to visit their maternal grandfather, a resident of North Nazma Bagh, Karachi in Pakistan on a visa of three months and that in the first week of December, 2001, they had approached the Ministry of External Affairs (Indian Division) in Government of Pakistan for extension of the visa for which they had even submitted their passports which were to be collected back on 13.12.2001. They claimed that when they had gone to the Ministry Office of Government of Pakistan on 13.12.2001, they had found the said division to be closed and claimed to have learnt that because of the attack on Indian Parliament (13.12.2001), no business was being transacted and they were asked to come again after few days to collect the passports. A4 and A5 claimed that since they were not having any passport at that time and there was no intimation given to the local police regarding their further stay, the local police had raided the house of their maternal grandfather to apprehend them but they had managed to escape and with assistance provided by their maternal grandfather, and with SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 49 of 145 the help of "a smuggler", they had escaped to secure "safe return" into India from Pakistan, entering the district of Bikaner (Rajasthan) from where they had reached their house (in Sikandarabad U.P.) in the 2nd week of February, 2002.
93.The investigating officer checked the call records of various mobile phones, numbers of which were discovered/revealed during investigation as in use of different persons connected with the acts of commission alleged in the case. In this regard, the evidence of PW21, PW22 and PW23 has been relied upon.
94.PW21 is Nodal Officer of IDEA, Cellular Service Provider.
He proved Ex PW21/B as the copy of the identification documents submitted by the subscriber of mobile phone no.
"9891423092", taken in the name of Mohd. Furkan son of Ibrahim submitting the copy of ration card of the individual. He also proved Ex PW21/C of the call details of the said mobile telephone issued by his office. The said documents were sent by the service provider to the Police by a letter Ex PW21/A dated 06.09.2003.
95. PW22 is Asstt. Nodal Officer of Hutch ( now known as Vodafone Essar Mobile Services). He proved Ex PW22/A as the call details and photocopy of form with election card SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 50 of 145 submitted by the subscriber Vikas Sharda, in respect of mobile telephone no. "9811489261", supplied to Police under the signatures of Nodal Officer. He also proved Ex PW22/B as the call details and photocopy of form and identity cards submitted by Gulzar Ahmed Butt, in respect of mobile telephone no. "9811938271", supplied to Police under the signatures of Nodal Officer.
96.PW23 is Executive (Legal) of Reliance Communication, Cellular Services Provider. He proved Ex PW23/B (Colly.) as the copy of application form, driving license and tariff plan alongwith Ex PW23/C as call details in respect of Reliance Mobile No. RIM35888654 functional in the name of Rajender Prasad (A6), which was handed over to the Police under the cover of letter Ex PW23/A dated 22.10.2003.
97.PW23 further proved Ex PW23/E ( Colly.) as the call details respecting international numbers called/received on Reliance Mobile No. "35888654", which was handed over to Police under the cover of letter Ex PW23/D dated 13.11.2003. PW23 also proved Ex PW23/G as similar call details respecting the said Reliance Mobile No. "3588654", which was handed over to the Police Ex PW23/F dated 14.12.2003. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 51 of 145
98. As per the submissions of the prosecution, the evidence of aforementioned witnesses has shown regular contact between A1 (through his mobile telephone no.9811489261) and mobile telephone no.9891423092 (of deceased militant RaffiquzZama @ Aslam @ Habib), and also with satellite phone nos.: 008821651150682 and 008821651150059 (of Rashid, Pak national) and 00925881046442 ( described as telephone number in the office of JeM in Pakistan) and also 00971507151283 (of Rahul, a Hawala operator based in Dubai).
99. It has been submitted by the prosecution that the call details produced by aforesaid witnesses also indicate that mobile telephone no. 9891423092 (of deceased militant Raffiquz Zama @ Aslam @ Habib) being in regular contact with satellite phone no. 008821651150059 ( of Rashid, Pak national Deputy Chief Commander of JeM).
100.It may be mentioned here that there is no evidence collected or produced to prove identity of the persons at the other end of above mentioned telephone numbers of Pakistan, Dubai or satellite phone.
101.It is further contention of the prosecution that these call details would also reveal contact of A1 with reliance mobile SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 52 of 145 no. 35888654 (of A6) on 27.8.2003 and further the contact of said phone of A6 with phone no.0097143534525 (of one Sethi, another Hawala operator based in Dubai). It may be straightway mentioned that last mentioned part of the evidence has lost its relevance upon the prosecution against A6 being dropped.
102.PW38 was working as MHCM in Police Station Special Cell, New Delhi during the relevant period. He proved deposit in Malkhana of the PS, the case property, upon seizure in this case from time to time, against entries in register no. 19 of the Malkhana. He proved Ex PW38/A1 to Ex PW38/A9, and Ex PW38/B as the said entries dated 30.08.2003, 31.08.2003 and 16.09.2003. The seized articles, thus, deposited in the Malkhana included not only the contraband arms, ammunition and explosives, but also jamatalashi of the person arrested.
103.PW38 deposed on the basis of his record that on 31.08.2003, Babboogosha, the fruit found in the boxes recovered from the truck was destroyed by being thrown out under the directions of the court. PW38 also proved release of computer and computer articles on Superdari to ACP Rajbir Singh on 17.09.2003, under orders of the concerned court of ASJ. He SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 53 of 145 also proved release of Jamatalashi articles of A1 on 18.02.2005 under orders of the court of ASJ.
104.PW38 also testified that 26 parcels sealed with the seals of HB and MCS deposited earlier in the Malkhana were opened for their contents to be examined and checked by a team of CFSL in the Malkhana on 06.10.2003 and after the said exercise, the said parcels were again sealed with the seal of GS and deposited in the Malkhana.
105.PW4 is Senior Scientific Officer (GradeI), Ballisticscum Assistant Chemical Examiner in CFSL, New Delhi. He is the expert, who had examined the case property and gave reports Ex PW4/A and Ex PW4/B.
106.As per evidence of PW4, vide report Ex PW4/A dated 09.10.2003, he had found that the ten handgrenades (HG1 to HG10), of "ARGES make" could be examined in the laboratory after rendering them deactivated, since they were "Live ones".
107. PW38 proved on the basis of entries in the Malkhana register that on 10.10.2003, he had sent through PW35, 16 parcels sealed with the seal of GS and marked GS1 to GS10, GL1, AD1, AR1 to AR3 vide road certificate no. 75/21, as per copy Ex PW38/C, alongwith CFSL Forms to CFSL, Lodhi SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 54 of 145 Road, on the direction of ACP Rajbir Singh. His evidence in this regard is corroborated by PW35, who affirmed that he had deposited the said parcels in CFSL and returned the copy of the RC to the MHCM and further that the case property, so long as it remained with him, was not tampered with. PW38 further proved that the said parcels were later received back from CFSL, now bearing the seals of CFSL, through ASI Sanjeev Kumar, where upon he had redeposited the said case property in the Malkhana.
108.PW4, vide his report Ex PW4/D, gave the following results of the other seized articles: "(1) The physical examination revealed that the Grenade Launcher (marked exhibit No. GL1) contained in the parcel no. 1 is "Fire Arm" as defined in the Arms Act,1959 and its firing mechanism is in working order."
"(2) The physical examination revealed that the Ten Grenade Shells (marked exhibit No. GS1 to GS10) contained one each in the parcels No. 2(1) to 2(10) respectively.
"Ammunitions" as defined in the Arms Act, 1959 and are live ones. These Grenade Shells can be loaded smoothly into the Grenade Llauncher (marked exhibit No. GL
1) contained in the parcel No. 1 in question."
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 55 of 145 "(3) The physical examination revealed that the contents of parcel No. 3 are eighteen Electric Detonators (marked exhibit No. RD
1) and the contents of parcel No. 4 are five Electric Detonators (marked exhibit No. AD1). These Electric Detonators are live ones."
"(4) The physical examination revealed that the contents of parcel No. 5(1) to 5(3) are three Electrical Gadgetry systems (marked as Exhibits AR1 to AR3 respectively) which could form components of three Remote Controlled Devices and are in working condition."
"(5) The twentythree Electric Detonators contained in parcel No. 3 & 4 respectively and the three Electrical Gadgetry systems contained in parcels No. 5(1) to 5(3) in question could form components of Improvised Explosive Devices. The Improvised Explosive Devices are, therefore, Explosive substances as defined in the Explosive Substances Act, 1908."
109.As per PW38, the 10 parcels containing hand grenades, sealed with the seal of GS were defused by a team, which had come from the State of Haryana on 16.01.2004 and after the said action, the parcels now sealed with the seal of KC was handed over back to the Malkhana, where it was deposited SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 56 of 145 against appropriate entry. PW48 is the Head of the team, which had conducted the said exercise. This witness proved his report Ex PW48/A and testified that he was working as Assistant Director of Technical Wing, CID, Madhuban, Karnal, Haryana and had come with his team for the purpose on instruction of his Senior Officers.
110.PW38 also deposed that on 28.01.2004, he had handed over 10 sealed parcels bearing seal of KC to Head Constable Kuldeep Singh against RC No. 08/21/04, as per copy Ex PW38/D, on the direction of IO and the said parcels were deposited in CFSL, Lodhi Road, against receipt Ex PW38/E. He further stated that the said parcels were received back on 27.02.2004, through Head Constable Rajesh, now bearing seal of CFSL, and were entered in Malkhana against appropriate entry.
111.PW44 is Principal Scientific Officer cum Assistant Chemical Examiner to the Government of India, CBI, New Delhi. He had examined the contents of sealed parcels Marked HG1 to HG10 on they being received bearing seals of KC in his office on 28.01.2004. He gave his detailed report Ex PW44/A. As per his evidence the 10 articles marked HG1 to HG10, on being examined were found to be SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 57 of 145 components/parts of 10 defused live hand grenades and, therefore, were explosive substances as defined in the Explosive Substances Act, 1908.
112.The case of the prosecution against A1, A2 and A3 stems from almost common set of facts, in that, they are shown to have been arrested together in the company of each other, in the evening of 30.08.2003, in circumstances wherein A1 had approached A2 and A3 to receive the illicit cache of arms, ammunition and explosives which had been transported from Jammu & Kashmir in the truck by A2 and A3. Though the evidence collected and developed later would link each of them with the common controllers in the terrorist groups/elements in India (Jammu & Kashmir) (India) and in Pakistan, the facts and circumstances leading to their arrests in the manner stated is the most important link connecting them with each other. While the prosecution submits that the evidence led has cogently and credibly brought out the involvement of these three accused persons in the crimes alleged, the defence argument is that the entire story is a yarn spun out which could not have occurred in the manner stated. The defence plea thus is that the prosecution evidence ought not be believed.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 58 of 145
113.The defence counsel submitted that as per evidence of PW33 the truck had been located by him in the parking lot at 2.00 PM and that A1 arrived on the scene at about 07.45 PM. The witness has testified that he had kept the truck under watch, right from the time of it being located till actual action that commenced after arrival of A1. He referred to the cross examination of PW33 wherein the said witness would depose that during the period of watch from 2 PM till arrival of A1 at 07.45 PM, A2 and A3 had remained inside the truck and that he (the witness) had also not changed his position. The defence counsel argued that this was highly improbable as no one could have remained immobile for such a long period without the need of moving some distance at least for such purposes as answering the call of nature.
114. The argument, to say the very least, is amateurish. It has to be remembered that PW33 is a trained police officer. He was on surveillance duty in a matter of grave and serious import. It was part of his duty, as indeed part of his training, to remain vigilant and continue with the surveillance over the suspects. In such facts and circumstances as brought out in the case at hand, trivialities like answering the call of nature lending to disruption in the vigil would be the last thing that is expected to cross his mind. As far as the conduct of A2 and A3 is SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 59 of 145 concerned, the reason why they would not move out of the truck is something which is for them to explain. For present purposes, the evidence of PW33 that they had remained closeted within the truck throughout the period does not seem incredible.
115.The defence counsel referred to the evidence of PW41, the independent public witness joined in the proceedings at the initial segment of the investigation wherein, under cross examination, he would say that all the accused persons (referring to A1, A2 and A3) were taken away from the spot (Qutab Road Parking) by the police immediately after the recovered material had been sealed and his statement was recorded at that point of time. He would also later add, under crossexamination, that the police party had left the place at 08.45 PM/ 9.00 PM and further that his statement had been recorded by Inspector Hriday Bhushan (PW43). The defence counsel argued that this sequence mentioned by PW41 does not jell well with the prosecution case, in that, per the police officers, who have appeared as witnesses, the investigation had continued at Qutab Road parking till 02.30 hours of 31.08.2003 and the statement of PW41 would be recorded not by PW43, but by PW49, the investigating officer. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 60 of 145
116.I am not impressed with the above arguments. The defence has tried to pick up stray utterances made at different points of time (during the crossexamination) by PW41 so as to present a picture which is apparently a distorted one. A sentence coming at the fag end of cross examination of PW 41 that police party had left the spot at 08.45 PM / 9.00 PM need not be read so as to be construed as a statement about police party having wrapped up the proceedings at Qutab Road parking at that point of time. It has to be remembered that after A1, A2 and A3 had been apprehended with the cache of arms, ammunition and explosive substances, in the course of subsequent developments, the police party had been joined by, amongst others ACP Rajbir Singh and on the basis of disclosure attributed to A1 respecting the intended delivery of the contraband to two others at Millennium park, Nizamuddin area, one police party led by ACP Rajbir Singh had left for the said place at 09.15 PM.
117. PW41 has not stated that the police proceedings concluded at Qutab Road Parking at 08.45 PM / 09.00 PM. All that he said was that police party had left the place at that point of time. Apparently, he was speaking about the police party which had set out for Nizamuddin area. In this view, there is no contradiction brought out in the prosecution case. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 61 of 145
118.As regards the statement of PW41 having been reduced into writing by PW43, there is nothing improper or irregular in it. There is no rule of law that the investigating officer must himself be the scribe of the statements recorded under Section 161 Cr.P.C. Nothing prohibits him from taking the help and assistance of others. In a case of this nature wherein police was constrained to move to another place, to catch hold of the intended recipients of arms, ammunition etc. and wherein the formalities required a number of papers to be prepared contemporaneously, there is no illegality or even irregularity in the investigating officer having taken the help of another officer in reducing the statement into writing.
119.The defence counsel submitted that all the witnesses connected with the seizure shown to have been made from the truck in the Qutab Road parking lot in the evening of 30.08.2003 have claimed that the truck was sighted at about 2 PM in the afternoon, where after a watch was kept over it leading ultimately to A1 having been seen arriving at about 07.45 PM. The counsel pointed out that, as per the evidence, pursuant to information later conveyed about A1, A2 and A 3 having been apprehended with the contraband, ACP Rajbir Singh with other police staff arrived and in the wake of disclosure made by A1 respecting the ultimate intended SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 62 of 145 recipients of the cache (the two persons, who would be killed near Millennium park, Nizamuddin in the course of the incident that was to follow on the same night) left the place for Nizamuddin area at about 09.15 PM. He further referred to the evidence indicating that the car in which the two said persons (slain in the encounter in Nizamuddin area) had arrived at the said place at about 10.45 PM followed by the encounter (leading to the said two persons being wounded and shifted to hospital). He further pointed out that Inspector Govind Sharma (PW49) took over the investigation at Qutab Road Parking around midnight (of the night intervening 30 & 31.08.2003) and further that, per evidence of PW43, the investigation at Qutab Road Parking had continued till 02.30 hours. on 31.08.2003.
120.It is the against the above mentioned chronology of events that the defence counsel referred to the evidence adduced through PW38 (the MHCM), according to which the 21 sealed parcels bearing seal of HB (marked HG1 to HG10, GS1 to GS10 and GL1) besides the three wooden boxes containing "babbugosha", the Kashmiri fruit, were deposited with him in the malkhana against entry at serial no. 255 in register No.19 on 30.08.2003 by Inspector Govind Sharma (PW49).
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 63 of 145
121.The defence counsel further referred, in the context of this very line of arguments, to the evidence of PW38 (MHCM), according to which Inspt. Govind Sharma (PW49) had handed over to him on 31.08.2003, the truck (along with its documents) besides personal search articles of A1, A2 and A3 against separate seizure memos which he had entered as the very next entry in the same register no.19. These two, entries besides others, in register no.19 of the malkhana of PS Special Cell have been proved by the witness as Ex. PW 38/A1 to A9.
122.The argument raised by the defence on the basis of aforesaid facts and circumstances is that ACP Rajbir Singh could not have deposited the case property with the Malkhana Incharge on 30.08.2003 since the said officer had been kept busy from the time of arrival at Qutab Road parking (after recovery from the truck) onwards at place other than the police station. The counsel pointed out that in the relevant entry at 255 (Ex. PW 38/A1 o A9), PW38 had mentioned the name of ACP Rajbir Singh in "column no.2" and showing the deposit to have been made on 30.08.2003. The submission of the defence counsel is that since investigation had continued into the wee hours of 31.08.2003, the case property could not have been deposited in the malkhana in PS Special Cell on SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 64 of 145 30.08.2003 as reflected in the said entry of register No.19, and further the presence of ACP Rajbir Singh in police station malkhana on 30.08.2003 as the person who was depositing the said case property indicates possibilities that the facts/records have been manipulated.
123.On careful appraisal of the evidence on record, I find the arguments of the defence in the nature of misconstruction/misleading. During the crossexamination of PW38, his attention was drawn to the mentioning of the name of ACP Rajbir Singh and Inspt. Hriday Bhushan (PW
43) in the malkhana entry respecting arms, ammunition and explosive substances recovered from A1, A2 and A3. The witness admitted that he had mentioned the said names in the record inadvertently. Though he was unable to tell the exact time of deposit of the case property in the malkhana, his evidence that he had received that part of the case property from Inspt. Govind Sharma (PW49) remains unassailed. At that stage, ACP Rajbir Singh was not the investigating officer. His role was merely that of a supervisory officer controlling the operating leading to the discovery of the facts on the basis of which the FIR came to be registered.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 65 of 145
124. The evidence clearly shows that after the recovery from A1, A2 and A3 at Qutab Road parking lot, on the case being registered on the basis of rukka sent by A3, PW49 had taken over the investigation. Further the evidence clearly shows that it was PW49 who had taken over not only the custody of the persons apprehended but also the control over the case property seized. Therefore, in the natural course of police proceedings, it could not be anyone but he, who would transport it to the malkhana of the police station. In these circumstances, mentioning of name of ACP Rajbir Singh and Inspector Hriday Bhushan in the malkhana register has been properly explained as an inadvertent error on the part of PW
39. Because of a clerical error of a Malkhana Incharge, the word of police officials out in the field cannot be doubted. As regards mentioning of the date 30.08.2003, there is nothing unusual that the arms, ammunition and explosive substances would have been immediately shifted and handed over in the malkhana after they had been taken over by the I.O. After all, they were sensitive material which could not have been held back at a public place for the completion of the rest of the police formalities. The seizure memos had already been prepared by PW43 and the IO only required to shift them to the malkhana. In natural course, he would have SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 66 of 145 done so with all promptitude. Nothing in police procedure or practice stipulates that the I.O. would not move the seized articles from the place of recovery till such time he is required to remain there for other action.
125. In these circumstances, the deposit of that part of the case property in malkhana on 30.08.2003 followed by the deposit of the remaining part of the case property like truck (with its documents) on 31.08.2003 does not lead to an inference that the record has been manipulated. It rather reinforces the credibility of the record maintained in the malkhana, in that the Malkhana Incharge was correctly reflecting the dates on which he had received the exhibits, one after the other.
126. There is one more reason why the above argument should be rejected. As held in State Vs. Meena Kumari (1986 Rajdhani Law Reporter 319), there are two cardinal principles which are never to be forgotten in the matter of appreciation of evidence in a criminal trial. The first is that the witness must be crossexamined on all parts of his testimony which it is intended to dispute, failing which what the witness says in the examinationinchief must be accepted as true. The second rule generally followed is that the attention of the witness must be drawn to any contradiction in SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 67 of 145 his statement either when juxtaposed against his previous statement or some other material on record. The whole idea is to afford him a proper opportunity to explain. If this is not done, no argument founded on the contradiction is permissible. It has to be remembered that the witnesses at times tend to make wrong or confusing statements due to nervousness or lack of understanding and, if such confusing statements are unintended, mountain cannot be allowed to be made of a molehill.
127.PW38 made a clerical error by adding the name of ACP Rajbir Singh and Inspector Hriday Bhushan in the malkhana records. The evidence shows both such officers at that stage were elsewhere. PW38 has admitted his said error, explaining that it was inadvertent. It was not even suggested to him during crossexamination that his statement in the examinationinchief that he had received this part of the case property from PW49 was not correct. Mercifully, the entry in the malkhana register also reflects the name of PW49. The other witnesses PW43 and PW49 have not been questioned so as to bring on record any material indicating the possibility of they having come to the police station, after seizure till midnight of 30.08.2003 so as to be the officers who had handed over the case property to the Malkhana Incharge. In SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 68 of 145 these circumstances, the arguments of facts/record having been manipulated must be rejected.
128.It is next argued by the defence counsel that the entire story about the encounter at Millennium Park, Nizamuddin area is a piece of fiction. It has been submitted that the persons shown killed in the encounter at that place included one who was the real brother of A4 and A5. The submission of the defence is that the said persons had also been in the custody of the police and it was only to enact a drama and create a sensational case that the story about A1 having revealed that intended recipient of the cache of arms, ammunition and explosive etc. was created. The argument is that the identity of the persons was already known and they were killed in coldblood.
129.In the above context, the defence counsel referred to the statement of PW33 wherein, under crossexamination, he stated that the distance between him and the car in question was about 20 steps only. The witness further stated that he was carrying a 9 mm pistol which was not used in the firing. He would not remember which out of the police party had fired in the said incident. He conceded that no member of the police raiding party had been injured in the incident. He SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 69 of 145 would not remember for how long the firing had lasted. In similar vein, PW35, another member of the same raiding party, has also conceded, during crossexamination, that he had not opened fire from the service weapon which he was carrying. PW42, yet another witness present at the scene of the encounter would state, under crossexamination, that he does not know the details since he was deployed outside the park. Same is the stand taken by PW49, explaining that he was not involved in the encounter which took place at Millennium park.
130.The defence counsel submitted that the statements of the witnesses in question give rise to anxiety as to the manner in which said persons came to be mortally wounded. He submitted that, in a case of crossfiring, it is unbelievable that no member of the police party would suffer even a scratch.
131.I am not impressed with the arguments to above effect. It is not necessary that some member of police party must suffer some injury so as to claim credibility about a police encounter. Encounters between criminals and police or security forces may happen and the members of the police or security force may come out unscathed. It all depends on the risks or precautions taken. In the facts and circumstances SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 70 of 145 involved herein the police was forewarned. On the other hand, the two persons who came in the car to the Millennium park would have been oblivious of the police presence. Only a short while ago, A1 had been apprehended in Sadar Bazar area. Apparently, the said two persons did not have information about such development. Therefore, it is they who would have been taken by surprise, on being challenged by the police (which had deployed itself well in time at Millennium park area).
132.Unfortunately, ACP Rajbir Singh, who was leading the raiding party, himself died before his evidence could be secured for the purpose of the prosecution at hand. He would have been in a better position to explain as to on account of use of which service weapon and by which police personnel, the said two persons were mortally wounded. Only because witnesses produced here were not such members of the raiding party as who had used fire arms, one cannot jump to the conclusion that the prosecution is unable to bring cogent evidence about the encounter. Noticeably, the defence adduced no evidence to show illegal confinement of the said two persons or of A4 and A5 as has been alluded. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 71 of 145
133.It may be added that, even otherwise, the issue involved here is not the encounter. Issue in the case at hand is that A1 had revealed the identity of two others who were, similarly, party to the criminal conspiracy and pursuant thereto were to receive the cache of arms, ammunition and explosive substances from him. The fact that the said persons also came to receive the said consignment from A1, armed to the teeth, only reinforces the revelation made by A1 regarding their antecedents. This is what is most crucial for the case against A1 on one hand and others (connected with him in the conspiracy) facing this joint trial on the other.
134.The defence argument is that the identity of the slain persons was already known and that it has been improperly shown that this could be established only later. In this context, reference is made to identification memos Ex. PW 2/A and PW 2/B which were prepared on 31.08.2003 in the course of investigation of the case at hand, wherein one of the said two persons killed, referred to in one of the connected MLCs as "UnknownI" was identified by A1 and A5 to be Raffiquz Zama resident of Kaziwara, Sikandrabad, U.P., while the other person referred to in the other connected MLC as "UnknownII" was identified as Zahoor resident of Pakistan by A1 and A5 respectively. As per the prosecution case, the SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 72 of 145 identification of the dead body at the hands of A1 and A5 in the mortuary of the hospital took place after the action at Sikandarabad U.P. wherein A4 and A5 had been apprehended. Noticeably, in the identification memo Ex. PW 2/A, A1 would refer to the dead body "UnknownI" as that of RaffiquzZama @ Habib @ Ashlam resident of Kaziwara, Sikandrabad, U.P., while in the memo Ex. PW 2/B, A5 would refer it as that of his brother RaffiquzZama son of Saffiq resident of 390, Kaziwara, Sikandrabad, U.P..
135.I do not find any discrepancy in the said identification memos only because A1 would not refer to the full residential address of the slain person. Further, nothing turns on terms of A5 in his identification of the dead body of his brother no referring to his other aliases. It only shows A1 was acquainted with the slain person by certain other assumed names as well.
136.I do not agree further with the argument that full address of Sikandarabad house of A4 and A5 came to be revealed only on 31.08.2003 through the identification memo Ex. PW 2/B. This identification memo was prepared not as a document leading to the arrest of A4 and A5 in Sikandarabad, U.P.. It was rather a document prepared after they had been SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 73 of 145 apprehended and certain contraband had been recovered from them in Sikandrabad, U.P. on 31.08.2003.
137.Further, I do not find any substance in the argument that there being no document prepared earlier in point of time revealing the address of Sikandarabad, U.P., it is inconceivable that the police would have reached the door of A4 and A5 in the morning of 31.08.2003 in house No. 390, Kaziwarda, Sikandrabad, U.P. in the manner it has been shown done. It has to be remembered that it was a night of fastpaced developments. The truck had been located at 2.00 PM. A2 and A3 were in control of the truck. A1 surfaced on the scene at 07.45 PM to receive the consignment brought by A2 and A3 in the truck. After they had been apprehended and the cache of arms, ammunition and explosive substances seized, it was only natural that A1, the immediate recipient would be questioned. His interrogation led to discovery of the intended arrival of the ultimate recipients at Millennium park, Nizamuddin and also about one of the expected arrivals being connected with A4 and A5 residents of Sikandrabad, U.P.
138.In view of the manner in which the events unfolded thereafter (including exchange of fire leading to the said SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 74 of 145 intended recipients getting mortally wounded) in general and in the interest of the confidentiality of the whole operation in particular, there is nothing improper that there was an omission of a clear reference of the complete residential addresses of A4 and A5 in the documents prepared at that stage. The fact remains and the evidence shows that the police team from Delhi led by ACP Rajbir Singh did go to Sikandrabad, UP in the morning of 31.08.2003 leading to the arrests of, and seizure from, A4 and A5 there. The evidence finds full corroboration from the statements of the local police officials joined from Sikandrabad, U.P.
139.For the same reasons, questions raised by the defence about the improbability of ACP Rajbir Singh having arrived in Sikandrabad, around 06.00 AM on 31.08.2003 and raiding house no. 390, Kaziwada, Sikandrabad associated by PW31 and PW32 deserves to be rejected. It may be added here that, in this context, the defence referred, inter alia, to the statement of PW49 to the effect that the provisions of POTA had been invoked and the investigation taken over by ACP Rajbir Singh at 06.00 AM on 31.08.2003, the argument developed thereupon being that ACP Rajbir Singh could not have been in Delhi at 06.00 AM to take over the investigation and also be in Sikandrabad, U.P. to be part of the raiding party SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 75 of 145 qua A4 and A5 at the same point of time. The argument is fallacious since it proceeds on the assumption that in order to take over the investigation or invoke POTA, it was necessary for ACP Rajbir Singh to be physically present with PW49 at Delhi on 31.08.2003. This was a step which did not require physical presence at a particular place. This could have been done while police party was on its way or had even reached Sikandrabad, U.P.. Again, the conclusion of interrogation of A1 at 06.00 AM on 31.08.2003 also does not create any doubts respecting the recoveries from the possession of A4 and A5, since A1 was in the custody of police and was being grilled and interrogated so as to bring out and track down fast all such persons as were working in league with him.
140.The defence counsel argued that the searches made in Sikandrabad, resident of A4 and A5 were illegal as no public witness was joined in the house search. He argued that therefore, the seizures made pursuant to such search should not be the basis of any adverse conclusions against the accused. I am not impressed with the argument. The IO who had taken a team of police officers from Delhi to Sikandrabad, UP did not act of his own. He had contacted and joined local police officers who have given evidence corroborating the facts relating to search and seizure at that place. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 76 of 145
141.In above context, one also needs to remind oneself about the settled law that the courts have to judge the evidence on the test of basic human probabilities. The evidence of police officials cannot be branded as highly interested. Such presumption runs counter to the principle that public servants must be presumed to act honestly, conscientiously and that their evidence has to be assessed on its intrinsic worth (AIR 1978 SC 1971).
142.It may be added here that recoveries in similar circumstances where the recovery Inspector had spoken about non availability of independent witnesses or even where the independent witnesses who were joined would not support, have been accepted as good evidence in a catena of authoritative pronouncements, provided the evidence of such police officer is otherwise found worthy of reliance [Ajaib Singh Versus State 1997 IX Apex Decision (SC) 362; Modan Singh Versus State AIR 1978 SC 1511; Omvati Versus State 1990 Crl.L.J. 304 (Delhi); Sunil Kumar Versus State 1990 Crl.L.J. 414 (Delhi); Akmal Ahmed Versus State Judgement Today 1999 (2) SC 388 and Mohd. Aslam Versus State Judgement Today 2000 (8) SC 104 to mention a few.] SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 77 of 145
143.In State Versus Sunil 88 (2000) DLT 630 (SC), it was observed that document prepared by IO contemporaneous with the recovery need not necessarily be attested by independent witnesses and that mere absence of independent witnesses when the investigating officer recorded the statement of the accused leading to recovery of incriminating material pursuant to such statement was not a sufficient ground to discard the evidence under Section 27 of Evidence Act. Hon'ble Court observed thus:
"it is archaic notion that actions of police officers should be approached with initial distrust - Courts cannot proceed with presumption that police records are untrustworthy - as a proposition of law presumption should be the other way round."
144.It is true that generally, the police officers are expected to take precaution by joining independent witnesses of the locality. Seen against such general practice, it does appear odd as to why the recovery officer had not joined independent public witnesses. But then, only on this default the seizure does not become illegal. Further, even if it is argued that the search and seizure were illegal, the observations of Hon'ble Supreme Court in Dr. Pratap Singh Versus Director of SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 78 of 145 Enforcement (1985) 3 SCC 72 provide the answer, viz., "illegality of the search does not vitiate the evidence collected during such illegal search."
145.Dealing with the arguments, almost to similar effect, albeit in the context of evidence of intercepted telephonic conversation, Hon'ble Supreme Court in the case of State of NCT of Delhi V. Navjot Sandhu @ Afsan Guru [(2005) 11 Supreme Court Cases 600] referred with approval to certain observations in R.M. Malkani Vs. State of Maharashtra 1973(1) SCC 471 to the following effect: "There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See. Jones v. Owens 80. The Judicial Committee in Karuma V. R. 81 dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police office below the rank of those who were permitted to make such searches. The Judicial Committee held SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 79 of 145 that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution.
It is that the judge has a discretion to disallow evidence in criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence."
146. For the above reasons, I find no substance in the argument of the defence that the story about encounter at Millennium Park, Nizamuddin and arrests of A4 and A5 has been fabricated.
147. The defence counsel submitted that the recoveries shown made of the arms, ammunition and explosive substances have not been properly linked so as to confirm for the record that the case property when it reached CFSL, had not been tempered with during the investigation. The counsel referred to memo Ex. PW4/A that had been prepared by PW4 on 09.10.2003 vide which it came to be stated that a team of Ballistic Experts of CFSL (comprising besides PW4 himself, PW44 and one another), had inspected the parcels amongst others, marked as HG1 to HG10 in the premises of PS Special Cell on 06.10.2003 and thereafter had advised that this part of the case property described as hand grenades could be examined in the laboratory after rendering them SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 80 of 145 deactivated by competent authority, supported with a certificate that the hand grenades in question are live ones. The defence counsel submitted that, during his cross examination, PW4 conceded that, in the said report, the seal impression found on the said exhibits have not been mentioned and further that inspection report would also not state as to the impression of sealing done. The counsel argued that this material shows that parcels sealed at the place of recovery and marked HG1 to HG10 had been opened on 06.10.2003 but not properly resealed.
148.In similar context, respecting parcels GL1, GS1 to GS10, AD1 and RD1 and AR1 to AR3, report Ex. PW 4/A indicates the same to have also been examined by the team of CFSL experts on 06.10.2003 and an advice was given to I.O. to send these articles to the laboratory for further detailed examination.
149.The defence counsel pointed out that the report Ex. PW 4/B respecting these articles in CFSL indicates that when they were received in CFSL on 10.10.2003, they were bearing seals of GS, as against the seals of HB and MCS which had been earlier put at the time of seizure. The defence argument is that the change of seal impression shows that the case SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 81 of 145 property had been opened unauthorizedly before it was formally passed on to CFSL on 10.10.2003.
150. In this very context, reference is also made to the statement of PW44 who denied having seen the parcels marked HG1 to HG10 prior to examination by him on 28.01.2004 leading to his report Ex. PW 44/A.
151.All the above mentioned arguments deserve to be rejected since proper explanation has come on record through the statement of PW38, the MHCM, who confirmed, on the basis of his malkhana records, that when the CFSL team had visited the malkhana and inspected the 26 sealed parcels, after being checked, the said parcels had been resealed with seal of GS and again deposited in malkhana properly. His evidence to such effect was not questioned or assailed. PW 49 was not confronted with even a remote suggestion that his seal had been improperly used or he was involved in tampering with case property at any stage. As regards the denial of PW44 about he having not seen the contents of the parcels HG1 to HG10 prior to 28.10.2004, it has to be remembered that he is not a signatory to inspection report Ex.PW4/A prepared under the signatures of PW4. Though the report does indicate the presence of PW44, in all fairness, SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 82 of 145 the attention of PW44 should have been drawn to it before questions of such nature could be raised. After all, PW44, an official witness, was entitled to refresh his memory for which it was necessary for him to refer to the document on basis of which his statement was to be contradicted.
152.The defence counsel has then argued that the evidence regarding recovery from the premises no. A44, Mahindra Park, is suspect. This argument is essentially based on two facts. The prosecution case was that an amount of Rs. 20 lacs was received by A1 from A6 in two instalments of Rs. 10 lacs each. For this, the prosecution relied upon the evidence of PW3. The second circumstance was recovery of certain gadgets (like computer monitor, music system, phone etc.), and cash amounting to Rs. 19.20 lacs from the premises in House No. A44, Mahindra Park, Azadpur, Delhi on 31.08.2003. In the last respect, the prosecution had recalled, under Section 311 Cr.P.C., and further examined PW49 to prove the seizure memo in the hand of ACP Rajbir Singh. The defence counsel pointed out that PW3 has turned hostile and did not support the prosecution case respecting passing of the amount of Rs. 20 lacs by A6 to A1. He argued that PW49 does not deserve to be believed about his statement regarding the recovery since he (having earlier stated that he SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 83 of 145 was not a member of the raiding party at Mahindra Park on 31.08.2003) has falsely claimed in his subsequent statement that he was associated in the said raid as well.
153.Both the line of arguments cannot detract from the facts brought on record through the seizure/memo Ex. PW 49/D, proved through PW49. PW3 is a relative of A6. He did not support the prosecution story and so was declared hostile. He was crossexamined by the Addl. P.P. and confronted with his statement made to police during investigation. A6 was also one of the persons facing trial, on 08.11.2004, when this witness was examined. It is not surprising that PW3 was not too willing to support the prosecution case against his own near relative. The prosecution against A6 was later withdrawn. The only effect of reluctance on the part of PW3 to support the prosecution case in above regard is that a clear finding cannot be recorded as to from where the amount of money recovered had been sourced/received. This cannot adversely affect the factum of the recovery as such.
154.PW49 was recalled for further statement to prove the seizure memo Ex. PW 49/D which is in the hand of ACP Rajbir Singh. The raiding party which made the said recovery included Inspector Mahesh Chand Sharma and SI Mehtab SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 84 of 145 Singh. All the said three police official have since died. In these circumstances, the prosecution had no option left but to rely on the evidence of another police officials acquainted with the handwriting and signatures of the author of seizure memo or the attesting witnesses thereto. In these circumstances, there is nothing improper in the document being proved through PW49.
155.Noticeably, during his further examinationinchief in above regard PW49 did not claim that he was a member of the raiding party which had caused the said recovery. It was only, during crossexamination, in answer to a question put by the defence counsel that this witness stated that he was also a member of the raiding party which had been taken by A1 to House No. A44, Mahindra Park. His attention was not drawn to earlier statement that he was not a member of the raiding party constituted on 31.08.2003. Even otherwise, the said earlier statement was not made in the specific context of the raiding party that went to Mahindra Park on 30.08.2003. On that day, a raiding party had gone not only to Mahindra Park but elsewhere as well, one such other place being the one raided at Sikandrabad.
156.In above view, the arguments respecting recovery from Mahindra Park do not appeal to me and must be rejected. It SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 85 of 145 may be added that it is inconceivable that police would plant such large amount of money as Rs. 19,20,000/ only to falsely frame A1 against whom there was far more incriminating material already available in the form of cache of arms, ammunition and explosive substance recovered from Qutab Road parking area.
157.On careful perusal of the evidence on record, I do not find any reason why it should be disbelieved. Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities [Narotam Singh Vs. State 1978 Cr.L.J. 1612(SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of witnesses [Lallan Vs. State 1990 Cr,.L.J. 463]. It was ruled in Ramni Vs. State, [Judgment Today 1999(6) SC 247)] that all discrepancies are not capable of affecting the credibility of witnesses. Similarly, all inconsistent statements are not sufficient to impair the credit of a witness.
158.Observations of Hon'ble Supreme Court in 1985 Crl. L.J. 1173 can also be fruitfully referred to in this context. The SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 86 of 145 evidence of an eye witness cannot be treated as one of the three legs of a tripod so as to conclude that it must collapse if one or the other leg collapses.
159.In the case of Sukhdev Yadav & ors. Vs. State of Bihar (2001) 89 (SCC) 86) it was held by Hon'ble Supreme Court that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) 9 SCC 525, it was observed that there are bound to be some discrepancies between the narration of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments or variations should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. (supra), it was also observed that when an eye witness is SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 87 of 145 examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was observed that it is a common practice in trial courts to make out contradictions from the previous statement of a witness used for confronting him during crossexamination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment of the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 88 of 145
160.I find no reasons to disbelieve the prosecution evidence. It is, thus, proved beyond all doubts that:
(i) A1, a resident of District Pulwama in J&K, had been acquainted with, amongst others, A4 and A5, besides their brother RafiqueuzZama resident of 390, Kaziwara, Sikandrabad, District Bullandshehar, U.P., in addition to Khurshid Ahmed Butt, owner of the truck (JK 030153);
(ii) A1 had been visiting Delhi and staying amongst other places in Seema Lodge at 3745, Churiwalan, Chawari Bazar, Delhi, Mirza Guest House, 776, Jama Masjid, Delhi and with PW11 in rented premises in house no. A44, Mahindra Park, Azadpur, Delhi;
(iii) A1 would be introduced by Khurshid Ahmed, owner of the truck to PW11 as a cousin brother;
(iv) On 24.08.2003, A1 had come to PW11 and told him that his truck was coming from Kashmir and he had to make some purchases like computer, music system etc. at which time, he did not have any money with him but would claim that he had to collect the money from the market;
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 89 of 145
(v) On 28.08.2003, A1 had received some money from some source with which he made some purchases in the nature of above mentioned articles from the market in the presence of PW11;
(vi) On 28.08.2003, the truck entered Azadpur fruit market at 22.55 hours;
(vii) Though the police on basis of intelligence inputs was on the lookout for the truck bearing registration number containing digits "0153" and trying to trace it out, but the truck bearing the said number having entered Azadpur fruit market at 22.55 hours on 28.08.2003 could not be found immediately inside the said market or around it or even at other such nearby places;
(viii) The truck was located in Qutab Road parking at 2.00 PM on 30.08.2003 with A2 and A3, present inside as its driver and cleaner respectively and put under surveillance;
(ix) At 07.45 PM on 30.08.2003, A1 approached the truck, and contacted A2 and A3, at which stage, the latter brought out (from the tool box of the truck) three wooden boxes which were opened and the contents shown to A1;
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 90 of 145
(x) At this stage, the police apprehended A1, A2 and A3, and on the said wooden boxes being checked, one of them (WB3) was found containing (beneath the layers of the fruits), 10 hand grenades (Ex. PX 1 to 10), 10 grenades shells (Ex. PX 11 to 20) and one grenade launcher (Ex. PX21), which were seized through formal documentation;
(xi) On being interrogated, A1 disclosed that two persons named Zahoor of Pakistan and Rafiquz Zama of Sikandrabad, U.P. were to shortly meet him at Millennium Park, Nizamuddin area to receive the consignment;
(xii) In the wake of aforementioned disclosure of A1 respecting intended recipients, a police team accompanied by A1 went to the place of the intended rendezvous, where the said Zahoor of Pakistan and RafiquzZama of Sikandrabad, U.P. came in a Maruti car but, upon being challenged, opened fire at police party with fire arms carried by them and in the return firing by the police in self defence, they were mortally wounded and when taken to hospital were declared brought dead; SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 91 of 145
(xiii) On the basis of disclosure of A1, the police party raided in the morning of 31.08.2003 the premises of House No. 390, Kaziwara, Sikandarabad, U.P., where A4 and A5, brothers of RafiquzZama of Sikandrabad, U.P., (one of the aforesaid two persons) were found present and apprehended;
(xiv) At the time of being apprehended, A4 was found having in his possession 18 electronic detonators (Ex. P1 collectively), while A5 was found having in his possession 5 electronic detonators (Ex. P4 collectively), besides three remote control devices (Ex. P5 to P7) respectively and cash amount of Rs. 85,000/ (Ex. P8 collectively);
(xv) A1 and A5 identified the dead body of Rafiquz Zama and Zahoor in the mortuary of the hospital confirming the former to be a Pakistani and latter to be the real brother of A4 and A5;
(xvi) On the pointing out and at the instance of A1 the rented premises comprised in A44, Mahindra Park was raided and besides computer parts (Ex. P2 collectively), music system, speakers, Nokia Phone etc. (Ex.P2 collectively), cash Rs.19,20,000/ (Ex. PXY collectively) were seized;
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 92 of 145 (xvii) Khurshid Ahmed Butt, the owner of the truck, died in the area of village Krenchhool, District Pulwama (J&K) in encounter with security forces on 14.12.2003 in an incident which is subject matter of FIR No. 177/03 under Section 307 RPC and Sections 7/27 of Arms Act of PS Pampore, Awantipora (J&K);
(xviii) A1 was in regular telephonic contact with Rafique uzzama ( brother of A4 and A5) who was killed at Millennium Park (Nizamuddin) and also with one telephone number based in Pakistan (00925881046442) and with two satellite phone numbers (008821651150682 and 008821651150059);
(xix) Raffiueuzzama who was killed at Millennium Park (Nizamuddin) was in regular contact with the last above mentioned satellite phone number with which A1 was also in touch;
(xx) A4 and A5 had entered Pakistan through Attari Border against valid visas for a period of three months on 13.09.2001 but did not return through legal channels/entry point and instead admittedly SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 93 of 145 returned much later through illegal means, crossing over into India to resurface only on 31.08.2003; (xxi) The 10 hand grenades (HG1 to HG10) recovered from the possession of A1 to A3 were found live hand grenades and, therefore, "explosive substances" as defined in Explosive Substances Act, 1908;
(xxii) The 10 grenades shells (GS1 to GS10) recovered from the possession of A1 to A3 were found live ones and, therefore, "ammunition" within the meaning of Arms Act, 1959 and could be loaded and used with grenade launcher ;
(xxiii)The grander launcher (GL1) recovered from the possession of A1 to A3 was found to be "fire arm"
within the meaning of Arms Act, 1959 with its firing mechanism in working order.
(xxiv) The 18 electronic detonators (RD1) recovered from the possession of A4 and the 5 electronic detonators (AD1) recovered from the possession of A5 were found live ones which (being components of Improvised Explosive Devices) were found to be "Explosive Substances" within the meaning of the expression used in Explosive Substances Act, 1908;
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 94 of 145 (xxv) The 3 remote control devices (AR1 to AR3) recovered from the possession of A5 were found to be electronic gadgets/components which could be fired and being Improvised Explosives Devices, (IED) were "explosive substances" within the meaning of the expression used in Explosive Substances Act, 1908.
161.PW13 was working as Deputy Commissioner of Police, Special Branch, New Delhi in the rank of Superintendent of Police in September, 2003. On 08.09.2003, applications of A 1 to A5 for making confessional statements U/s 32 of POTA were laid before him. He proved his proceedings wherein he had administered warning to each accused and recorded their separate statements vide Ex PW13/A to E. He directed the accused persons to be brought before him on 09.09.2003. He proved Ex PW13/F as the declaration made by A1 and Ex PW13/G as the statement made by A1 made before him. He proved declaration Ex PW13/J and statement Ex PW13/K made by A2 before him. He further proved declaration Ex PW13/H and statement Ex PW13/I made by A3 before him. He also proved declaration Ex PW13/L and statement Ex PW13/M made by A4 before him. Similarly, he further SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 95 of 145 proved declaration Ex PW13/N and statement Ex PW13/O of A5 made before him.
162.As per the provisions of POTA, the confessional statements made u/s 32 required confirmation before a Magistrate. PW36 was working as Additional Chief Metropolitan Magistrate (ACMM), Tis Hazari Delhi, on 10.09.2003 on which date, CMM being on leave, A1 to A5 were produced before him by ACP Rajbir Singh with application Ex PW36/A. This witness proved his proceedings Ex PW36/B whereby he had recorded the statements of said accused persons, who had confirmed their confessional statements made before PW13. PW36 also proved his order on application Ex PW36/C whereby he had allowed the copy of his proceedings to be issued.
163.The defence counsel has argued that confessions under Section 32 of POTA in the case at hand do not deserve to be acted upon as there have been lapses and violation of procedural safe guards guaranteed under Sections 32 and Section 52 of POTA. In support of this contention questioning the admissibility of the confessions, reliance was SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 96 of 145 placed on the law laid down, and view taken, on confessions under the said provisions of law in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru [ (2005) 11 Supreme Cout cases 600].
164.Section 32 of POTA made a departure from the ordinary law wherein confession made to a police officer is inadmissible by virtue of provisions contained in Section 25 and 26 of Evidence Act. Section 32 of POTA was a provision which was similar to the one incorporated in Section 15 of Terrorist & Disruptive Activities (Prevention) Act, 1987 (hereinafter, "TADA") which was enacted as a sequal to the Terrorist & Disruptive Activities (Prevention) Act, 1985, originally enacted with a life span of two years as to meet the challenge posed by the escalation of terrorist activities affecting many parts of the country at that point of time. The constitutional validity of various provisions contained in TADA was challenged and considered by the Hon'ble Supreme Court in the celebrated case of Kartar Singh Vs. State of Punjab [(1994) 3 SCC 569]. As observed in Mohmed Amin Vs. C.B.I. [(2009) 3 SCC(Cri) 693], a matter arising out of a prosecution under TADA, Section 15 (of TADA) was an important departure from the ordinary law and must receive SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 97 of 145 that interpretation which would achieve the object of the provisions rather than frustrate it. Hon'ble Supreme Court observed that while enacting TADA, the legislation has designedly made a departure from the provisions of Cr.P.C. and the Evidence Act and in order to enssure that Section 15 of TADA was not misused for extracting confessions, the legislature also specified certain safeguards in Section 15(2) and Rule 15 of the Rules framed under the said legislation.
165.The general rule that the confession relied upon as a piece of evidence must have been voluntarily made and must be admissible and reliable continues to hold the field, even under these special provisions under special enactments, the reason being that the protection against selfincrimination lies at the heart of the concept of fair procedure. In order to insulate against the possibility of abuse, Hon'ble Supreme Court in the case of Kartar Singh (supra) laid down certain further guidelines. Some of these came to be incorporated, in due course, by amendment in the TADA and later came to be included in the improved version of anti terrorism legislative measure in the form of POTA.
166.The judgment in the case of D.K. Basu Vs. State of (West Bengal [(1997) 1 SCC 416] is yet another important case in SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 98 of 145 the history of jurisprudential development focused on the protection of fundamental right of liberty. Hon'ble Supreme Court in this case laid down a number of guidelines which were expected to work as a check on misuse of police powers of arrest, detention etc. When POTA was enacted, some of the safeguards introduced in D.K. Basu (supra) found their way into legislative provisions contained in Section 52 of POTA.
167.Section 32 POTA which is at the heart of the arguments raised, reads as under: "32. Certain confessions made to police officers to be taken into consideration,(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sound or images can be reproduced, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.
(2) A police officer shall, before recording any confession made by a person under sub section (1), explain to such person in writing SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 99 of 145 that he is not bound to make a confession and that if he does so, it may be used against him:
Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession. (3) The confession shall be recorded in an atmosphere free from threat or inducement and shall be in the same language in which the person makes it.
(4) The person from whom a confession has been recorded under subsection (1), shall be produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial Magistrate along with the original statement of confession, written or recorded on mechanical or electronic device within fortyeight hours.
(5) The Chief Metropolitan or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an assistant Civil Surgeon and thereafter, he shall be sent to judicial custody."
168. Section 52 POTA, which has also been extensively referred in defence arguments, reads as under: SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 100 of 145 "52. Arrest. (1) Where a police officer arrests a person, he shall prepare a custody memo of the person arrested.
(2) The person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the police station.
(3) Whenever any person is arrested, information of his arrest shall be immediately communicated by the police officer to a family member or in his absence to a relative of such person by telegram, telephone or by any other means and this fact shall be recorded by the police officer under the signature of the person arrested.
(4) The person arrested shall be permitted to meet the legal practitioner representing him during the course of interrogation of the accused person:
Provided that nothing in this sub section shall entitle the legal practitioner to remain present throughout the period of interrogation."
169. The defence counsel has argued that the safeguards contained in Section 32 and 52 of POTA, as referred to above, have been flouted by the police in the case at hand. In this context, he submitted that no police official witness connected with the arrest or police custody of any of the SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 101 of 145 accused persons involved here has spoken about the compliance with the provisions of Section 52 of POTA. He further argued, referring to the statement of PW36, the ACMM before whom accused persons were taken for confirmation proceedings under Section 32(4)(5) of POTA, wherein the witness conceded, under crossexamination, that he had not informed the accused persons that after the said proceedings, they would be sent to judicial custody or further that he had not warned them that the statement, if any, made by them would be used against them or that they were not bound to make such statements. These circumstances, in the submission of defence counsel, demonstrate that the procedure prescribed in Section 32 of POTA and safeguards included in Section 52 of POTA have not been scrupulously followed, and therefore, it is not safe to rely upon the confessions of A1 and A5 recorded by PW13.
170. The defence counsel also submitted that it was not proper on the part of PW13 to use a scribe, another police officer and that PW13 had not made proper inquiry as to the readiness/willingness of the accused persons in making the confessional statements since he had not ascertained the period of police remand prior to the accused persons being produced before them, nor confirmed their ability to SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 102 of 145 understand the language in which the confessions were being recorded, nor further got them medically examined by a psychologist to satisfy himself as to their physical or mental fitness to make such statements before him.
171. In the context of submissions based on various safeguards in Section 32 and 52 of POTA, the defence counsel relied on judgment in Navjot Sandhu (Supra).
172. In Navjot Sandhu (supra), Hon'ble Supreme Court ruled that a confession recorded by the police officer under Section 32 (1) of POTA is admissible in evidence. The voluntariness and reliability of the confession is, however, to be tested by the court. The admission of such confession is subject to observation of other provisions of Section 32 of POTA which are in the nature of procedural safeguards aimed to ensure that the confession has been made by the accused in an atmosphere free from threat or inducement, the most important safeguards in Section 32 being those provided in subsections (4) & (5). It has been held in the said case that if the confessional statement is properly recorded, satisfying the mandatory provisions of Section 32 of POTA and if the same is found by the court as having been made voluntarily and truthfully, then the said confession is sufficient to base the SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 103 of 145 conviction of the maker of the confession. It was observed as under: "The confession recorded by a police officer under Section 32 (1) of POTA stands on the same footing as the confession recorded by a Magistrate and the court can act upon it in spite of its retraction if it inspires confidence in the mind of the Judge. The rule of corroboration evolved by the Supreme Court as a matter of prudence in relation to a retracted confession recorded by a Magistrate under Cr.P.C. need not be dispensed with.
X X X The various safeguards enshrined in Section 32 are meant to be strictly observed as they relate to personal liberty of an individual. The requirements and safeguards laid down in Section 32 (2) to (5) are an integral part of the scheme providing for admissibility of confession made to the police officer. The breach of any one of these requirements would have a vital bearing on the admissibility and evidentiary value of the confession recorded under Section 32 (1) and may even inflict a fatal blow on such confession.
X X X The lofty purpose behind the mandate of Section 32 (5) that the maker of the confession shall be sent to judicial custody by the CJM before whom he is produced, is to provide an SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 104 of 145 atmosphere in which he would feel free to make a complaint against the police, if he so wishes. The feeling that he will be free from the shackles of police custody after production in court will minimize, if not remove the fear psychosis by which he may be gripped. The same objective seem to be at the back of Section 164 (3) Cr.P.C, though the situation contemplated therein in somewhat different.
173. In the context of safeguards in Section 52 of POTA, Hon'ble Supreme Court in Navjot Sandhu (supra) observed as under: " Subsections (2) and (4) as well as sub section (3) of Section 52 stem from the guarantees enshrined in Articles 21 and 22 (1) and Article 20(3) of the Constitution. The constitutional guarantee under Article 22 (1) only implies that the suspect in the police custody shall not be denied the right to meet and consult his lawyer even at the stage of interrogation. If he wishes to have the presence of the lawyer, he shall not be denied that opportunity. Section 52(2) of POTA casts an imperative on the police officer to inform the person arrested of his right to consult a legal practitioner, soon after he is brought to the police station. Thus, the police officer is bound to apprise the arrested person of his right to consult the lawyer.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 105 of 145 X X X Sections 52(2) and (4) are not to be treated as empty formalities. It cannot be said that the violation of these obligations under subsections (2) and (4) have no relation and impact on the confession. It is too much to expect that a person in custody in connection with the POTA offences is supposed to know the fasciculus of the provisions of POTA regarding the confessions and the procedural safeguards available to him. The presumption should be otherwise.
X X X The opportunity of meeting a legal practitioner during the course of interrogation within closed doors of the police station will not arise unless a person in custody is informed of his right and a reasonable facility of establishing contact with a lawyer is offered to him. If the person in custody is not in a position to get the services of a legal practitioner by himself, such person is very well entitled to seek free legal aid either by applying to the court through the police or the Legal Services Authority concerned, which is a statutory body. Not that the police should, in such an event, postpone investigation indefinitely till his request is processed, but what is expected of the police officer is to promptly take note of such request and initiate immediate steps to place it before the Magistrate or the Legal Services Authority so SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 106 of 145 that at least at some stage of interrogation, the person in custody would be able to establish contact with a legal practitioner."
174.Since similar arguments with reference to the procedure prescribed in Section 32 of POTA and safeguards incorporated in Section 52 of POTA had been raised to question the admissibility of the confessions of two of the accused involved in the case of Navjot Sandhu (Supra), they being Mohd. Afzal and Shaukat Hussain Guru, Hon'ble Supreme Court considered the effect of such violations on the admissibility of the confession recorded under Section 32 of POTA, and laid down the law in the following words:
" The violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of Sections 32(2) to (5). Sections 32(2) to (5) have an integral and inseparable connection with the confession recorded under Section 32 (1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority. These safeguards are, so to say, woven into the fabric of Section 32 itself and their observance is so vital that the breach thereof will normally result in eschewing the confession from consideration, subject to what has been said about the judicial custody. The SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 107 of 145 prescriptions under Section 52, especially those affording an opportunity to have the presence of the legal practitioner, are no doubt supplemental safeguards as they will promote the guarantee against selfincrimination even at the stage of interrogation; but these requirements laid down in Section 52 cannot be projected into Section 32 so as to read all of them as constituting a code of safeguards of the same magnitude. To hold that the violation of each one of the safeguards envisaged by Section 52 would lead to automatic invalidation of the confession would not be in consonance with the inherent nature and scheme of the respective provisions. However, the denial of the safeguards under Sections 52(2) to (4) will be one of the relevant factors that would weigh with the court to act upon or discard the confession. To this extent they play a role vis avis the confessions recorded under Section 32, but they are not as clinching as the provisions contained in Sections 32(2) to (5)."
(emphasis supplied).
175.In the case of Navjot Sandhu (Supra), the confession attributed to Mohd. Afzal and Shaukat Hussain Guru (both accused persons in that case) were held of doubtful origin and, therefore, unsafe to be relied upon. The reasons for rejecting the confession attributed to Afzal were that he was sent back to police custody on application of the IO after recording of SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 108 of 145 confession, in breach of Section 32(5); was not apprised of his right to consult a legal practitioner; and no member of his family or relative or close friend was informed; all in breach of Section 52 of POTA, and finally, inadequate time was given to him for reflection before his confession was recorded thereby depriving him of the opportunity "to deliberate and introspect once again".
176. In the case of Shaukat Hussain, similar violations of procedural safeguards of Section 52 were noticed besides failure on the part of the ACMM to apprise the said person that he would no longer be in police custody, coupled with fact that record would not show that confessional statement had been read over to him besides the additional violation of the recorded confession being suspect on account of some embellishment having been made therein, it being "not really believable that he would go to the extent of implicating his pregnant wife in the crime".
177. But then, as observed by the Hon'ble Supreme Court in the case of Navjot Sandhu (Supra), the denial of safeguards under Section 52 of POTA even if assumed, are only one of the relevant factors that weigh with the court in acting upon or discarding the confession but they are "not as clinching as the provisions contained in Section 32 (2) to (5)".
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 109 of 145
178. In the present case, the defence at the trial did not even attempt to raise questions about compliance of Section 52 of POTA. Mere omission on the part of police official witnesses to speak about the compliance is of no consequence. As observed in Mohmed Amin (supra), whenever an accused challenges the voluntary character of his confession, the initial burden is on the prosecution to prove that all the conditions specified by the special law (Section 15 TADA in that case and Section 32 POTA in the case at hand) had been complied with and "once that is done, it is for the accused to show and satisfy the court that the confession was not made voluntarily". For this, it is for the accused to adduce evidence during the trial to substantiate his allegations that the confession was not voluntary. No evidence has been adduced by any of the accused on trial here.
179. A1, A2 and A3 had been arrested in the evening of 30.08.2003 from Qutab Road parking. The arrest memos in their regard have been proved as Ex. PW 3/H, Ex. PW 25/B and Ex. PW 35/F respectively. The arrest memos confirm that their near relatives or close acquaintances had been duly informed telephonically/ telegraphically. This fact is not disputed by the accused persons. A4 and A5 were arrested from their house in Kaziwada, Sikandrabad, U.P. in the morning of 31.08.2003. The SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 110 of 145 arrest memos in their regard have been proved as Ex. PW 32/A and Ex. PW 32/B respectively. Both the documents confirmed that their real brother was present at the time of arrest and had been duly informed and had even signed on the documents in token thereof. The arrests were made by ACP Rajbir Singh who has since died, and therefore, could not be produced. The arrests were made in the presence of PW31 and PW32. No suggestion to the effect of non compliance of provisions of Section 52 of POTA was given to any of the said witnesses during their crossexamination.
180. All the five accused persons were produced before the Designated court under POTA, then presided over by Sh. S.N.Dhingra, Addl. Sessions Judge (now Hon'ble Judge of High Court) on 31.08.2003 with the request for police custody remand. The record shows that police custody remand was granted for a period of 10 days requiring them to be produced before the Designated court again on 10.09.2003.
181. The record further shows that on 08.09.2003, the accused persons expressed desire to make confessional statements and, accordingly, they were produced before PW13. PW13 recorded their statements as per proceedings Ex. PW 13/A. In the said proceedings, conducted separately in respect of each accused, with the IO being kept out, PW13 duly explained to each person that he SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 111 of 145 was not bound to make a confession and that if he does so make any confession, it can be used as evidence against him. PW13 also ascertained from each accused as to the language he could speak and understand. Each of them confirmed that they spoke and understood Hindi language. A1 and A3 added the ability to speak and understand English as well. Each of them made it clear that he had not been forced to make the confessional statement but sought time to think over before making such statement. Their statements to this effect were duly recorded and the proceedings respecting each deferred to the morning of 09.09.2003. It may be added here that A 1, A2 and A3 signed on the said proceedings in English while A4 and A5 signed their names in the said proceedings in Hindi.
182. PW13 has further proved the proceedings recorded by him on 09.09.2003 separately in respect of each of the five accused persons. These proceedings further confirmed that PW13 had conducted the proceedings in respect of each separately keeping the I.O. out of the vicinity. He again explained to each accused that he was not bound to make a confession and that if he chooses to make a confession, it might be used against him. He again questioned them about the language they could speak, write, read or understand, on which answers similar to the one given earlier were made. Each accused made a clear statement before PW13 that he was making the confession without any pressure, threat, fear or SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 112 of 145 inducement. Their statements were accordingly recorded in the documents referred to above. The statements are in Hindi language. The statements are followed by certificates that they were read over to the persons making the same and admitted to be correct and containing full and true account of the statement made by each of them. The proceedings were duly signed by each accused in the same manner as done previously.
183. After the confessional statements had been recorded by PW13 on 09.09.2003, accused persons were produced before PW36 on 10.09.2003 for confirmation vide application Ex. PW 36/A. The proceedings recorded by PW36 have been proved as Ex. PW 36/B. Admittedly, each accused confirmed before PW36 that he had made the confessional statement before PW13, not alleging any torture by the police in that context. PW36 recorded their statements, concluded his proceedings issued a copy on application Ex. PW 36/C and resealed the record of confessional statements and made over the same to the Designated Court.
184. The record further shows that later, on the same day, i.e. 10.09.2003, application was moved by the IO ACP Rajbir Singh seeking the judicial custody remand in respect of A1 to A5. The judicial record shows that necessary order was passed on the said application by the Designated Court.
SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 113 of 145
185. In above view, I find that the procedure under Section 32 of POTA has been scrupulously followed not only by the police officer recording the confessional statements but also by the ACMM who recorded confirmation proceedings. PW36 was not competent to extend the judicial custody remand. Remand granted earlier was expiring on the very same day on which confirmation proceedings were recorded. A1 to A5 were produced for the purpose before the Designated Court when the police remand was not even being pressed.
186. The police officer recording the confessions took care not only in ascertaining the voluntary nature of the offer to make such confessional statements but also gave sufficient time to the accused persons to reconsider the said offer by reflecting on its desirability. He called them on the next date and only after reconfirming that there was no threat, inducement, pressure etc. that he proceeded to record their confessions. Mere use of scribe by PW13 is no reason why the record should be doubted. There is no legal requirement that before recording the confessional statement, the medical examination of the accused persons should have been arranged or the period of police custody checked. Rather, it would have been unusual if the offer to make confessions had come too close in time to the time of arrests. PW13 had taken necessary precaution of ascertaining the language read, written or spoken and understood by SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 114 of 145 the accused persons making the confessions. He recorded their confessional statements in Hindi, the language confirmed by each of them to be understandable by them.
187. Even after the statements had been recorded, the same were duly read over and explained and in token of they admitting the contents to be true, each accused put his signatures on the record. When produced on the next day before the ACMM, they did not complain of any torture, threat, fear and inducement.
188. It is not part of the obligation of the CMM to warn the accused, in the confirmation proceedings, that they were not bound to make confessional statement and that, if so made, the same might be used as evidence against them. This was a requirement at the stage of proceedings under Section 32(2) before the police officer recording the confession. The objective of proceedings before PW36 was to confirm that confession had not been extracted under threat, inducement or by way of torture etc. This duty was duly carried out by PW36.
189. In above facts and circumstances, the view taken respecting confessions in the case of Navjot Sandhu (supra) is distinguishable on facts. There is no violation of procedure contained in Section 32 of POTA so as to vitiate the confessional statements of A1 to A5 in the case at hand. I am thus satisfied that these confessions were SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 115 of 145 freely and voluntarily made and do not suffer from any vice indicated in Section 24 of the Evidence Act. These confessional statements are not only admissible but also reliable. They spell out all the facts which constitute offences with which each of these persons has been charged. These confessional statements by themselves are sufficient to sustain the finding of guilty and conviction thereupon respecting each of the accused persons facing this trial. In the case at hand, there is abundant material, even otherwise available, through the facts and circumstances that have been found brought home to return the finding of guilty. The confessional statements in this case only lend further assurance to those conclusions.
190. A1 in his confession (Ex. PW 13/G) has given a graphic narration of his close association with terrorist elements, terrorist groups or JeM (a terrorist organization included at serial no.5 in the Schedule appended to POTA) since April/May 2000, to afford a detailed revelation about his connection with various activities / acts including his training in camps in Pakistan in use of fire arms, making and use of explosives etc. He gave a detailed account of the sequence of events that started with 24.08.2003 when he came to Delhi under directions of his controllers in the terrorist groups having collected Rs.20 lacs from illicit sources, about his role in being the intermediatry for purposes of receiving the cache of SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 116 of 145 arms, ammunition, explosive substances etc. from A2 and A3 for the same being further passed on to the militants Zaheer and Habib @ Raffiq who came to be killed in Nizamuddin area.
191. A2 and A3 in their respective confessional statements Ex. PW 13/K and Ex. PW 13/I, similarly revealed their connections with Khurshid, owner of the truck and about each of them having been contacted by the said Khurshid with specific task of carrying the cache of arms, ammunition and explosive substasnces secretly from Kashmir to Delhi for use of terrorist elements of JeM. They spoke about they having received three wooden boxes of fruits in which arms, ammunition and explosive substances were concealed beneath the layers of fruit and having brought the same to Delhi in the truck and having been contacted by A1 whose mobile number had been given to them by the said Khurshid.
192. A4 and A5 in their confessional statements Ex. PW 13/M and Ex. PW 13/O revealed their connections with JeM since Sept. 2001 at the instance of their brother Raffiq (one who got killed at Nizamuddin) who had earlier gone to Pakistan. These two accused in the said confessional statements also spoke at length about they having gone to Pakistan on 1314.09.2001 SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 117 of 145 on a visa and having joined terrorist camps there with the help of their maternal grandfather (a resident of Pakistan) and having taken training in use of fire arms, explosive substances etc. and joining Jehadi groups of JeM. Both of them revealed in the said disclosures that a terrorist attack was planned to be carried out in Mumbai in April, 2003 and in that context they having stayed in Mumbai where they would provide shelter to terrorist elements and also organized concealment of arms, ammunition, explosives etc. They further spoke about they having come to Delhi on 1415.07.2003 and having received from a Hawala dealer cash of Rs. 2 lacs and, from A1, arms, ammunition and explosive substances (part of which was recovered from their respective possession). They also spoke about further instructions received from their controller Raffiq in August 2003 respecting the transportation of the cache of arms, ammunition etc. from Kashmir to Delhi and having come from Mumbai in that context on 30.08.2003.
193. The charge of criminal conspiracy is what binds all these five accused persons to each other. Hon'ble Supreme Court in State Vs. Nalini, AIR 1999 SC 2640 observed as under on the subject of conspiracy:
"In reaching the stage of meeting of minds, two or more persons share information about SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 118 of 145 doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information, some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators....".
194.In Kehar Singh Vs. State AIR, 1988 SC, Hon'ble Supreme court observed that:
"It is however essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
195. It is well settled that the criminal conspiracy may come into existence and may persist and will persist so long as the persons constituting the conspiracy remain in an agreement and so long as, they are acting in accord, in furtherance of the object for which they had entered into the agreement. The agreement is the gist of the offense of criminal conspiracy, but in order to constitute a single general conspiracy, there must be a common design and a common intention of all to work in SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 119 of 145 furtherance of the common design. Each conspirator might be playing a separate part in one integrated and united effort to achieve the common purpose. Each one would know the part that he is expected to play in a general conspiracy though he might not know all its secrets or the means by which the common purpose was to be accomplished. The evil scheme might have been promoted by a few, some might drop out and some might join at a later stage, but the conspiracy might continue until broken up.
196.A general conspiracy has to be distinguished from a number of separate conspiracies having a similar general purpose. Where different group of persons cooperate towards their separate ends without any privity with each other, each combination would constitute a separate conspiracy. A conspiracy has been equated with a running stream or a running train. Some persons join it at the beginning while others might join it later. But they are all parties to the same general conspiracy, leaving aside certain other unrelated conspiracies or separate conspiracies among some of the members who cooperate towards their separate ends. Reference in this context can be made fruitfully to Abul Rehman and others V. Emperor (AIR 1935 Calcutta); Mohd. Hussain Umar Kochra V. K.S. Dalipsinghji (AIR SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 120 of 145 1970 SC 45); UOI Vs. Prafulla Kumar Samal (1979) 3 SCC 4; and State Vs. Riaz Ahmad and others (Criminal Appeal No. 27 of 1970 decided on 20.4.1971 by Hon'ble High Court of Delhi).
197.In State Vs. V.C. Shukla AIR 1980 SC 1382, it was observed that in order to prove a criminal conspiracy under Section 120B of IPC, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence, and this required that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of the offense, and while in most cases it would be difficult to get direct evidence of an agreement to conspire, a conspiracy could be inferred from the circumstances giving rise to a conclusive or irresistible inference of an agreement. Undoubtedly, the burden of proving the facts or circumstances beyond all reasonable doubts remains that of the prosecution.
198. In the case of Navjot Sandhu (supra) Hon'ble Supreme Court made certain observations which are germane, and which read as under: SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 121 of 145 "Mostly, conspiracies are proved by circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. The expression "physical manifestation" employed in Kehar Singh case, (1988) 3 SCC 609 at p.
733 in para 275 shall not be equated to "overt act", which is a different concept. The phrase has reference to the manifestation of the agreement itself, such as by way of meetings and communications."
X X X "A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence and antecedent and subsequent conduct, among other factors, can be proved to decide about the complicity of the accused. The cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt.
In regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 122 of 145 parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
199.Though the allegations/charges under Arms Act or Explosive Substances Act are based on direct evidence respecting the seizure, the evidence relied upon by the prosecution respecting allegations of criminal conspiracy involving acts of commission connected with terrorism and waging war against Government of India are based mainly on circumstantial evidence.
200.Hon'ble Supreme Court in case of Hanumat Govind Nagacunda Vs. State of MP AIR 1952 SC 343 observed that it needs to be remembered that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be of a conclusive nature and tendency and further that they should be such as to exclude every hypothesis but the one proposed to be proved. It has been authoritatively held in various Judgments of Hon'ble Supreme Court including Sharda B. Sarda Vs. State of Maharashtra AIR 1984 SC 1622, C. Channy Reddy Vs. State of AP SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 123 of 145 (1996) 10 SCC 193, State of Veera Reddy Vs. State of AP AIR 1990 SC 79, Kali Ram Vs. State of Rajasthan 1977 SCC(Cri) 250 and Balvinder Singh Vs State of Punjab 1996(1) CCC 5 (SC) that the conditions precedent for conviction to be based on circumstantial evidence which must be fully established are: "(a) The circumstances from which the conclusion of guilt is to be drawn should be fully, cogently and firmly established, as distinguished from 'may be' established;
(b) the facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(c) the circumstances should be of a conclusive and definite nature and tendency unerringly pointing towards the guilt of the accused;
(d) they should exclude every possible hypothesis except the one to be proved; and
(e) the circumstances, taken cumulatively, should form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
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201. The above law has been retraced and chronicled in judgment of Hon'ble High Court reported as State Vs. Shaquila 88 (2000) Delhi Law times 219(DB).
202.The facts and circumstances that have been proved cogently establish on record the existence of a criminal conspiracy, unmistakably showing each of the accused persons to be a member thereof. The circumstances are of a conclusive and definite nature and tend to unerringly point towards the guilt of each of the five accused persons, consistent only with the hypothesis of their guilt totally excluding the possibility of their innocence. Each accused was connected with conscious possession of arms, ammunition or explosive substances. They were hobnobbing with each other and also with elements whose complicity in the crimes of terrorism is writ large on the material submitted. At least two of them (A4 and A5) even went to Pakistan and stayed illegally in that country. They would return to India illegally and surreptiously. As their confessional statements would show, the gist of which has been noticed earlier, they went to Pakistan on a clear mission of undergoing training in terrorism. Their grandfather, a resident of Pakistan had made the arrangements for their said training and they had gone SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 125 of 145 there at the behest of their real brother Raffiq. The said brother Raffiq was moving around with a Pakistani national with whom he had come to receive from A1 the cache of arms, ammunition and explosive substances that had been transported by A2 and A3. A2 and A3 were themselves controlling part of the illicit hoard of armoury in their house. Clearly, they were the agents of forces inimical to the Indian State and were helping out the terrorist elements with weapons and explosives besides huge amounts of money.
203.Relying upon State of Gujarat v. Mohd. Atik 1998 Cri.L.J. 2251, it was argued that a statement made by an accused after his arrest cannot fall within the ambit of Section 10 of Evidence Act. The counsel for the accused referred mainly to the following observations of Hon'ble Supreme Court in the said judgment: "It is wellnigh settled that Section 10 of the Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made "in reference to their common intention." In other words, a postarrest statement made to a police SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 126 of 145 officer, whether it is a confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act."
204.All the persons who stood this trial jointly have faced the charge of criminal conspiracy under Section 120B IPC. The prosecution projected all the said 5 persons, as co conspirators. In this context, Section 10 of the Evidence Act is relevant. It reads as under: "10. Things said or done by conspirator in reference to common design. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. "
205.The submission of the defence counsel in the context of Section 10 of Evidence Act and with reference to the judgment in the case of Mohd. Atik (Supra) is based on SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 127 of 145 misconstruction of the case of the prosecution. The prosecution has not requested for the disclosures made by any of the accused, or for that matter even the one attributed to them, to be used against the others as material referable to Section 10 of Evidence Act. It is the acts of commission on the part of all the coaccused persons, which deserve to be considered so as to appreciate their role in the manner permissible under Section 10 of Evidence Act.
206. It may be mentioned here that in a similarly placed fact situation in the case of Mohmed Amin (supra), Hon'ble Supreme Court observed that a confession of one accused, if admissible can be used not only against the maker of such confession but also against the coaccused, abettor or conspirator. The relevant observations in para 31 of the said judgment read as under: "The ratio of the abovenoted judgments is that if a person accused of an offence under the Act makes a confession before a police officer not below the rank of Superintendent of Police and the same is recorded by the officer concerned in writing or on any mechanical device like cassettes, tapes or sound tracks from out of which sounds or images can be reproduced, then such confession is admissible in the trial of the maker as also the coaccused, abettor or SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 128 of 145 conspirator not only for an offence under the Act but also for offence(s) under other enactments, provided that the coaccused, abettor or conspirator is charged and tried in the same case along with the accused and the court is satisfied that requirement of the Act and the Rules have been complied with. Whether such confession requires corroboration depends on the facts of the given case. If the court is convinced that the probative value of the confession is such that it does not require corroboration then the same can be used for convicting the maker and/or the coaccused under the Act and/or the other enactments without independent corroboration."
207.In the case at hand, the confession of each accused under Section 32 POTA is admissible and relevant not only against the respective maker of such confessional statement but also against the other four accused who have been proved to be coconspirators and abettors, also for the added reason that all of them have faced this trial jointly.
208. A1, A2 and A3 are residents of terrorismaffected State of Jammu & Kashmir. The incidents of terrorism affecting the life, peace and tranquility of that State as also other parts of India, particularly the capital city of Delhi are now far too many in number and too well chronicled to require a detailed narration. It is well established and well recognized, almost globally in the present SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 129 of 145 times, that the terrorist elements are aided and abetted by their masters/controllers across the border in the neighbouring State of Pakistan. The truck which was used by A2 and A3 in this case belonged to a person who himself died in an encounter with police forces in Jammu & Kashmir, an incident connected with terrorism. A2 and A3 brought the consignment of lethal arms, ammunition and explosive substances concealed in local Kashmiri fruit in the truck to Delhi. The facts and circumstances that have been proved show that before arrival of the truck in Delhi, A1 was already present in the city conveying to his acquaintance that he was to receive the consignment in the truck coming from Jammu & Kashmir. When he came to Delhi, A1 did not have money worth the name in his possession. All of a sudden, a large amount said to be in the range of Rs. 20 lacs came to him. Undoubtedly, the source from which the said money was procured has not been proved. A6, who was described as the person passing on the said money to A1 was discharged on account of prosecution being withdrawn, pursuant to recommendation of the POTA Review Committee. But, the fact remains that A1 was found having in his possession as large a sum of money as Rs. 19,20,000/. He has not given any account or explanation, much less reasonable, for being in possession of such amount of money.
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209. The facts and circumstances proved further show that A1 was in touch on phone with certain elements in Pakistan and also with two persons who he referred as those who were to meet him at Millennium park, Nizamuddin to receive the cache of arms, ammunition and explosive substances that had come from Jammu & Kashmir via the truck brought by A2 and A3. When the police reached Millennium park, the place of rendezvous, two persons who came there were themselves armed to the teeth. One of them has been found to be a Pakistan national and the other the real brother of A4 and A5. Unfortunately, both the said persons came to be killed in exchange of fire with police. Had they survived they possibly could have led to other accomplices operating in the same sphere.
210. The facts proved further show that A1 was not only in touch with the slain brother of A4 and A5 but also closely connected with the latter too. He was aware that they were themselves in possession of similar collection of explosive substances. When the premises of A4 and A5 were raided in the wake of these revelations, explosive substances were recovered from A4 and A5 besides another large amount of money cash Rs. 85,000/ found in possession of A5. Both A4 and A5 were living with each other and their brother was operating with a militant organization from Pakistan.
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211. The cumulative effect of aforementioned facts and circumstances unmistakably shows that A1 to A5 were not only in league with each other but operating in concert. The fact that they were holding not only unaccounted huge amounts of money in cash, apparently obtained from suspect sources but also, and more importantly, they were possessing fire arms, ammunition and explosive substances in such quantity, indicates that they were operating under control of their masters with such unholy designs as intended, or were likely, to cause death of, or injuries to, public at large besides damage to, or destruction of, property thereby disturbing the normal life of the community. These acts, given the background narrated by each of these accused persons in their respective confessional statements, were apparently intended to threaten the unity, integrity, security and sovereignty of India and also to strike terror in the people at large. Their confessional statements clearly show that each of these accused persons was a member of a terrorist gang/organization involved in terrorist acts. The possession of large quantity of arms, ammunition and explosive substances, besides unaccounted huge amount of money, proves that these accused persons were engaged at the time of being apprehended in acts preparatory to terrorist act(s) within the meaning of Section 3(3) of POTA.
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212. The above conclusions lead to the natural corollary that the prosecution has been able to bring home the charge under Section 3(5) read with Section 20 and Section 3(3) of POTA against all the five accused persons.
213. The additional charge under Section 22 of POTA respecting the amount of Rs. 20 lacs (allegedly collected by A1 from A6) is also faced by A1. Though the allegations of A6 being the source of the said amount of money have not been proved, the fact that amount of Rs. 19,20,000/ was received and found in possession of A1, his guilt under Section 22(2)(a) POTA has been proved, notwithstanding the absence of the person from whom it was sourced.
214. All the five accused persons were also charged with offences under Sections 121, 121A, 122 and 123 IPC. In the case of Navjot Sandhu (supra), Hon'ble Supreme Court made the following observations which are germane to the case at hand: "The public peace is disturbed and the normal channels of the Government are disrupted by such offences which are aimed at subverting the authority of the Government or paralyzing the constitutional machinery. The expression "war" preceded by the verb "wages" admits of SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 133 of 145 many shades of meaning and defies a definition with exactitude."
X X X "Organizing or joining an insurrection against the Government of India is a form of war.
"Insurrection" as defined in dictionaries and as commonly understood connotes a violent uprising by a group directed against the Government in power or the civil authorities. "Rebellion, revolution and civil war" are progressive stages in the development of civil unrest the most rudimentary form of which is "insurrection". An act of insurgency is different from belligerency. It needs to be clarified that insurrection is only illustrative of from belligerency. It needs to be clarified that insurrection is only illustrative of the expression "war" and it would cover situations analogous to insurrection if they tend to undermine the authority of the Ruler or the Government."
X X X "Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war. Terrorist acts prompted by an intention to strike at the sovereign authority of the State / Government, tantamount to waging war irrespective of the number involved or the force employed. The chances of success of SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 134 of 145 such an operation need not be assessed to judge the nature of criminality."
X X X It is seen that the first limb of Section 3 (I) of POTA and the acts of waging war have overlapping features. However, the degree of animus or intent and the magnitude of the acts done or attempted to be done would assume some relevance in order to consider whether the terrorist acts give rise to a state of war. Yet, the demarcating line is by no means clear, much less transparent. It is often a difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with acts aimed at overawing the Government by means of criminal force.
X X X The intention and purpose of the warlike operations directed against the governmental machinery is an important criterion. If the object and purpose is to strike at the sovereign authority of the Ruler or the Government to achieve a public and general purpose in contradistinction to a private and a particular purpose, that is an important indicia of waging war. Of course, the purpose must be intended to be achieved by use of force and arms and by defiance of government troops or armed personnel deployed to maintain public tranquility.
X X X SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 135 of 145 An 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. These are not relevant factors. They will certainly help the court in forming an idea whether the intention and design to wage war against the established Government exists or the offence falls short of it. For instance, the firepower or the devastating potential of the arms and explosives that may be carried by a group of persons may be large or small, as in the present case, and the scale of violence that follows may at times become useful indicators of the nature and dimension of the action resorted to. These, coupled with the other factors, may give rise to an inference of waging war. However, a settled proposition is that there need not be the pomp and pageantry usually associated with war such as the offenders forming themselves in battle line and arraying in a warlike manner. Even a stealthy operation to overwhelm the armed or other personnel deployed by the Government and to attain a commanding position by which terms could be dictated to the Government might very well be an act of waging war.
(emphasis supplied).
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215. As observed earlier, the five accused persons facing this trial were apparently part of criminal conspiracy. They were acting in concert with each other. A2 and A3 brought the cache of arms and ammunition, which were of prohibited bore, besides explosive substances from Jammu & Kashmir clandestinely loaded in the truck. They were in the midst of passing it on to A1, when they all were apprehended. A1 was to pass this lethal material to two persons similarly engaged in the terrorist activities. The said persons came to collect the cache from A1 also armed with lethal weaponry. They were ready to engage police in firing and actively indulged in such acts and died as a result. They were closely associated with A4 and A5 who were lying in the safe haven of their house. The confessional statements have shown that all of these persons were acting under the control of terrorist elements in Jammu & Kashmir and in Pakistan. There is substantial evidence of A4 and A5 having crossed over into Pakistan on valid visas and having overstayed there. Their explanation that they could not come back to India because of disruption in official government channels in the wake of attack on Indian Parliament on 13.12.2001 is not supported by any cogent evidence. Rather, their confessional statements graphically show that they went and stayed in Pakistan for SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 137 of 145 specific purpose of getting trained for joining militant groups and actually underwent such training in terrorist camps there. They admittedly returned illegally crossing the border with the help of suspect elements. The fact that they were having in their possession explosive substances and huge amount of money shows that they were the contact points for the purposes of terrorist groups operating stealthily.
216. These acts of commission and omission on the part of these five accused persons indicate that they had conspired with each other, and also others, in waging war against Government of India within the meaning of penal provisions contained in Section 121 and 121A IPC. The fact that they were collecting arms, ammunition and explosive substances being members of the said criminal conspiracy shows that they were doing so with the intention of either waging, or being prepared to wage, war against the Government of India within the meaning of penal provision contained in Section 122 IPC. It is plain from the facts proved that these five persons were engaged in the said acts taking care to conceal the existence of their design to wage war against Government of India intending by such concealment, to facilitate the waging of such war. This brings their acts within the mischief of Section 123 IPC.
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217. In above view, the guilt of the five accused persons for offences under Section 121, 121A, 122 and 123 IPC is held proved.
218. A1, A2 and A3 were found having in their possession the grenade launcher, a fire arm and 10 grenade shells, the ammunition, within the meaning of Section 4 of POTA read with Section 25 of Arms Act. Their guilt for the said offence is thus brought home.
219. A1, A2 and A3 were found having in their possession 10 live hand grenades, explosive substances as defined in Explosive Substances Act, 1908. A4 was found having in his possession 18 electronic detonators, explosive substances also within the mischief of Explosive Substances Act, 1908. A5 was similarly found in possession of 15 electronic detonators, explosive substances again covered by Explosive Substances Act, 1908.
220. Charge for offences under Section 4 and 5 of Explosive Substances Act was framed in above respect against A1, A2 and A3. Separate charge in above respect for offences under Section 4 & 5 of Explosive Substances Act was framed against A4. Similarly, separate charge in respect of above SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 139 of 145 mentioned offence was framed against A5 under Section 4 & 5 of Explosive Substances Act.
221. In addition to the charges under Section 4 & 5 of Explosive Substance Act, my learned predecessor had also framed separate charge under Section 4 of POTA read with Section 25 Arms Act against A4 and A5. In my view, reference to the Arms Act in the said charge in the context of Section 4 of POTA against A4 and A5 was erroneous, in that, what was found in possession of A4 and A5 was not a material covered by Arms Act but material in the nature of explosive substances. This would have attracted Section 4 (b) of POTA , rather than Section 4(a) of POTA. Since the contents of the charge do not leave any scope for confusion or doubt as to the nature of the material respecting which the said charge was being framed, no prejudice has been caused to A4 and A5 in that regard. The said charge will thus have to be read as if there was no reference to Section 25 of Arms Act.
222. Since the mere unauthorised possession of explosive substances in any area is sufficient to attract the penal consequences under Section 4(b) of POTA, guilt of A4 and A5 for the said offences is also brought home, also in view of SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 140 of 145 the background facts including about they being members of the conspiracy with others.
223. PW 14 was working as Deputy Secretary ( Home) in the Government of NCT of Delhi in 20032004. He proved Ex 14/B as the sanction issued for criminal proceedings against A1 to A6 U/s 196(1) CrPC. He also proved Ex PW14/A whereby sanction was accorded U/s 50 POTA against A1 to A6, on 26.12.2003. PW14 further proved Ex PW14/C whereby sanction was given for prosecution of A1 to A6 U/s 22 POTA.
224.PW16 was working as DCP (HQ), Delhi on 25.11.2003. He proved Ex PW16/A as the consent for prosecution of A1 to A6 given by him U/s 7 of Explosive Substances Act, 1908 in respect of offences U/s 4/5 of the said Act.
225.PW47 was working as Divisional Commissionercum Revenue Secretary cum District Magistrate, Delhi on 25.06.2009. He had granted consent U/s 7 of Explosive Substances Act for prosecution of A1 to A5 vide order Ex PW47/A, which was proved by him.
226.PW46 was working as DCP Special Cell on 17.11.2003. On that day, he had granted sanction U/s 39 of Arms Act, which he proved vide Ex PW46/A. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 141 of 145
227.On the charge under Sections 4 & 5 of Explosive Substances Act faced by A1 to A5, however, the defence has raised the plea that the prosecution to that extent itself was unauthorised. In this context, argument has been raised that the consent for prosecution in 4 & 5 of Explosive Substances Act was bad in law.
228.The defence counsel has referred to the provision contained in Section 7 of Explosive Substances Act, 1908 which reads a under: "7. Restriction on trial of offences. No Court shall proceed to the trial of any person for an offence against this act except with the consent of the District Magistrate."
229.The authority which has been vested with the power to give "consent" in the original enactment was " the Central Government". By way of amendment through the Act No. 54 of 2001, brought in force w.e.f. 01.02.2002, this function was shifted to "District Magistrate". In the present case, investigating agency had initially obtained consent under Section 7 of Explosive Substances Act from the Commissioner of Police, on whose behalf PW16 authenticated the formal order dated 25.11.2003 vide Ex. PW SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 142 of 145 16/A. Since the Commissioner of Police is not same as "District Magistrate", the error having been noticed, a fresh order according consent was obtained on 25.06.2009 vide Ex. PW 47/A from PW47, who on the relevant date was working as District Magistrate of Delhi. The defence conceded that PW47 was the competent authority under Section 7 of Explosive Substances Act but questioned the prosecution on the charge for offences under Section 4 & 5 of Explosive Substance Act on the ground the cognizance taken, inter alia, on the basis of order giving consent vide Ex. PW 16/A was without authority of law.
230.While it is true that the provisions in the nature of previous sanction or consent in various enactments are not an empty formality, it has to be remembered that avowed object of all such prerequisites in various statutes (for example under Sections 195, 196 or 197 Cr.P.C. or for that matter under Section 50 of POTA) is to ensure that there is no malicious prosecution and that case taken to the court is founded on sufficient evidence.
231. It is true that the investigating agency should have been careful in obtaining the consent order under Section 7 of the Explosive Substances Act from authority competent to accord the same. No objection on this ground, however, was SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 143 of 145 taken till the stage of final arguments. When charges were being framed, no issue of this nature was raked up. The matter has traveled much beyond the stage of cognizance to the fag end of the trial. The facts proved show that the accused persons had in their possession and under their control explosive substances with the requisite criminal intent (to endanger or enable the others to endanger life or cause serious injuries to property in India) writ large. The possession of explosive substances in the case of each accused was conscious possession and under such circumstances, as to give rise to reasonable suspicion that each of them was having it not for lawful object. In these circumstances, the guilt of each of the accused persons for offences under Section 4 & 5 of Explosive Substances Act 1908 has been brought home. In this scenario, the objection regarding lack of authority in the Commissioner of Police to grant consent vide Ex. PW 16/A ought not come in the way because the charge is well founded and well supported by evidence. The deficiency in the consent has been rectified by a fresh order given by the competent authority vide Ex. PW 47/A which, in the circumstances at hand, must relate to the beginning. The defect thus stands cured even during the course of trial. SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 144 of 145
232. In view of the above conclusions and findings, A1 to A5 are held guilty and convicted for offences punishable under Section 3(5) and Section 20 of POTA, under Section 3(3) of POTA, under Sections 121 IPC, 121A IPC, 122 IPC and 123 IPC, under Section 4 of POTA, Section 4 of Explosive Substances Act and Section 5 of Explosive Substances Act. Pronounced in open court on This 3rd day of January, 2011 (R.K.Gauba) ADDL. SESSIONS JUDGE 01 (CENTRAL)/ JUDGE, SPECIAL COURT (PREVENTION OF TERRORISM ACT, 2002), DELHI SC No.44/08 & 53/10 State Vs. Noor Mohd. Tantray & anr. Page 145 of 145