Delhi District Court
State vs . Mohd. Mukhtar Ahmad Khan on 21 April, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R0909132007
SC NO:48/07
FIR NO: 48/07
PS SPL. CELL
U/s 121A/123/120B IPC & 18/20/23 of UAP
Act & 4/5 of Explosive Substances Act
STATE vs. Mohd. Mukhtar Ahmad Khan
JUDGMENT
1 Sl. No. of the Case 48/07
2 Date of Committal to Sessions 25.10.2007 3 Date of Receiving by this Court 13.04.2011 3 Name of the complainant State 4 Date of commission of offence 12/06/07
5 Name of accused, parentage and address Mohd. Mukhtar Ahmad Khan @ Mukhtiyar S/o Sh. ShahZUllah Khan R/o Dewar Lolab, PS Lalpora, Distt. Kupwara, Jammu & Kashmir, Galizoo PS & Distt.
Kupwara, Jammu & Kashmir Age: 29 yrs ( Local Meat Trader) 6 Offence complained of U/s 121A/123/120B IPC & 18/20/23 of UAP Act & 4/5 of Explosive Substances Act 7 Offence charged U/s 18/20/23 Unlawful Activities (Prevention) Act r/w 120B IPC and 4 & 5 of Explosive Substances Act 8 Plea of guilty Pleaded not guilty 9 Final order Acquitted 10 Date on which order reserved 13.04.2012 11 Date on which order announced 21.04.2012 Page 1 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 2 BRIEF REASONS FOR DECISION
1. Case of the prosecution as per the charge sheet is that in the last week of May'2007 a secret information was received by Spl. Cell of Delhi Police that Abu Musab @ Tahir and Abu Hamza who were both residents of Pakistan and District Commander of banned Militant Organization Lashker e Tayeba (LeT) at Kupwara and Baramula in J&K have planned to carry out terrorist activity in Delhi as per directions of their Pakistan based Chief Commander AbuAlKama. As per information , Mukhtyar , R/o Kupwara, J&K was directed to set up base in Delhi and provide shelter to other associates .
2. In order to develop this information, a team was formed under supervision of ACP S.K.Yadav and it was led by Inspector Mohan Chand Sharma of Spl. Cell. Informers were deployed, contacts were developed and technical surveillance was mounted. During the process it was revealed on 30.5.2007 that on 29.5.2007 Mukhtyar has left for Delhi and would stay in a Hotel in Jama Masjid Area. Specific technical surveillance was mounted and a team comprising of SI Dilip Kumar, SI Devender and HC Sandeep was deployed to secretly search for Mukhtyar . Upon secret inquiries it came to their notice that Mukhtyar is staying in Seema Lodge, Churiwalan, Chawri Bazar. On 8.6.07, Mukhtyar left the hotel in the morning and thereafter became untraceable.
3. On 12.6.07 at 12.00 noon, a specific information was received by SI Dharmender Kumar from a secret informer at the Spl. Cell Office that on 8.6.07 Mukhtyar left for Kashmir and Page 2 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 3 that he would be coming back to Delhi on 12.6.07 itself to supply a huge consignment of explosive to carry out terror activities. As per information the consignment would be delivered on the same day at 4.30pm by Mukhtyar to his associates near In Gate of Azad Pur Fruit Market.
4. On this information DD No.8 Ex.PW17/A was recorded and in order to conduct a raid a team comprising of Inspector Mohan Chand Sharma, SI Rahul Kumar, SI Ramesh Lamba, SI Dilip Kumar, SI Ravender Tyagi, SI Dharmender Kumar, ASI Charan Singh, ASI Sanjeev Lochan, SI Sanjeev Kumar, ASI Haridwari, ASI Anil Tyagi, ASI Prahlad, HC Udaibir, HC Krishan Ram, HC Sanjeev, Ct. Parvesh , Ct. Rajender , Ct. Rajive , Ct. Balwant , Ct.Amar Singh and Ct. Ran Singh was formed . Out of the team ASI Sanjeev Lochan, ASI Hardwari, ASI Prahlad and Ct. Balwant were sent to keep a watch on Seema Lodge and rest of the team equipped itself with arms , ammunition, bullet proof jackets and IO kit and left for the spot at Azad Pur Fruit Market at around 3.00pm vide DD entry No.10 Ex.PW17/B in four Pvt. Cars, one official Gypsy and one Two wheeler. The team reached there at 4.00pm. On the asking of Inspector Mohan Chand Sharma, SI Dharmender asked 78 passersby to join the raiding party by they all left without disclosing their names and addresses. Inspector Mohan Chand Sharma briefed the raiding party members and deployed them around bus stop near In Gate of Azad Pur Fruit Market.
Page 3 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 4
5. At 4.40 pm it is stated that accused was seen coming on foot on the service road from Mukarba Chowk side wearing TShirt and Jeans pant. Accused was found carrying one red and blue colour bag on his right shoulder. Accused was identified by the secret informer and disclosed his name as Mukhtar. Team members were alerted by the signal of touching of head with right hand. It is further case of the prosecution that accused stopped at Bus Stop of Sarai Peepal Thala near in gate of Azad Pur Fruit Market and started waiting for someone. He waited for around 25 minutes and when no one approached , accused Mukhtyar started walking towards Model Town side. At that juncture on the signal of Inspector Mohan Chand Sharma accused was over powered by police party. He disclosed his name, parentage and address. After police party introduced itself to the accused and asked about the contents of the bag, accused could not give any satisfactorily reply.
6. Bag make Reebok was removed from right shoulder of accused and searched. It was found containing one white card board box packed in brown colour tape kept in white polythene underneath the cloth. Upon opening the card box, it was found containing polythene having 15 slabs wrapped in transparent polythene containing yellow colour oil based explosive material. Upon weighing this material was found to be 1.5 kg . One black colour polythene was also recovered from the side pocket of the bag which was found containing two silver colour electronic detonators wrapped in cotton having yellow Page 4 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 5 wires and one black colour timer having white and pink wires with one more set of wires for connecting battery. Recovered timer had 6:6 on the one side and ok on its top. The bag also contain certain clothes, toothpaste, brush etc. The team informed ACP S.K. Yadav. Public persons had gathered there out of which Mohd.Rafiq and Narender Singh Rana volunteered to join the process as public witnesses . Out of recovered 1.5 kg explosive, two samples of 10gm each were taken out and seized in separate plastic container and remaining material and polythene bag was kept in the card board box and were duly sealed. Detonators were kept in a plastic jar and were sealed . The timer along with polythene and detonator were kept in plastic jar and were also sealed with the seal of DK. All the recovered articles were sealed with the help of white cloth. Seizure memo of articles is Ex.PW4/1.
7. Ruqqa Ex.PW17/C was prepared by SI Dharmender Kumar and FIR Ex.PW7/A was got registered U/s 121/121A/122/123/120B IPC r/w 4/5 Explosive Substances Act and 18/20/23 Unlawful Activity (Prevention) Act was registered. ACP S.K.Yadav took over the investigation and prepared site plan is Ex.PW1/DA . Accused was arrested vide memo Ex.PW1/B, his personal search is Ex.PW1/C. His disclosure statement was recorded Ex.PW1/D and Ex.PW1/E is supplementary disclosure statement of accused.
8. On pointing out of accused, search was conducted at Seema Lodge , Chawari Bazar. Its records were seized vide memo Ex.PW1/G including Guest Register Ex.PW2/1 and Page 5 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 6 Ex.PW2/2 and identity proof of accused is Ex.PW1/F where he was staying in room no.20. Seizure memo of articles recovered is Ex.PW2/1. Other documents recovered as Ex.PW10/A to C and the articles are Ex.P1 to P11 apart from Ex.PW1/A to P. DD entry qua arrival at the PS upon arrest i.e. DD No.17 A is Ex.PW18/A.
9. Police seized Passport having visa of Pakistan, certain letters written in Urdu one Nokia phone no.09906731639, one DTC bus ticket from Delhi to Lahore in name of accused dated 13.6.2007 apart from some white chemical like powder. Accused is shown to have disclosed phone numbers of Abu Hamza as 9906731643, 9469082706 and 9906454490 and of Abu Musab as 9906519144 and that of Abu Saad 9906338939 and 9906794603. These numbers were also allegedly found in the mobile phone recovered from the room where accused had stayed and a memo Ex.PW1/A was prepared qua the same . STD records were seized vide memo Ex.PW1/K and the MTNL record and STD receipts are Ex.PW1/G1, PW1/G2, PW1/G3 and PW1/H (13 pages) . Copy of diary containing the STD phone numbers is Ex.PW1/J. Exhibits were sent to CFSL on 9.7.2007 vide RC Ex.PW3/A and the report is Ex.PW5/A as per which the recovered material was Highly Explosive and the detonators were live one and timer was in working order . Ex.PW6/A is Sanction order of the Divisional Commissioner (Revenue) qua prosecution under Explosive Substances Act . Ex.PW13/A is order of Dy. Secretary Home qua sanction of prosecution of Unlawful Activities (Prevention) Act. Ex.PW14/A and B collectively are Page 6 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 7 letters from Airtel Srinagar qua connection details of phone number 9906731639 as per which it was in the name of one Nazir Ahmad Lone. Details of aforementioned other phone numbers shown revealed are Ex.PW14/C, Ex.PW14/D. Ex.PW15/A to C is report of BSNL qua CDR data of the recovered phone. Ex.PW18/D is statement of Nazir Ahmad Lone denying obtaining the phone connection in his name along with his affidavit Ex.PW18/C Ex.PW9/A to G are report and documentation qua purchase of ticket to Lahore from Delhi via DTC Bus and passenger list is Ex.PW9/A . Report of destruction of detonators from defence authorities Ex.PW18/M and O. Report from FRRO is Ex.PW18/N, PW21/ A D . Report from Passport Office Sri Nagar Ex.PW18/L. Report of Zubari Yusuf qua phone number 9419460774 denying the ownership is Ex.PW18/J. Similar reply of Rakesh Singh of Katua, J&K qua phone number 9906338939 is Ex.PW18/K . Malkhana entries and road certificate are Ex.PW16/A to Ex.PW16/C, and Ex.PW12/A to C. Photocopy of identify proof of Narender Singh Rana is Ex.PW14/DX. BSNL telephone record qua revealed phone numbers are Ex.PW15/A to G . Ex.PW15/H is BSNL Record of Zaheer Abbas. Report of A.H.Dar qua phone no.9469082706 is Ex.PW18/D with affidavit is Ex.PW18/E and concerned certificate is Ex.PW18/F, G and H. His application to authorities qua misuse of his particulars is Ex.PW24/A.
10.After conclusion of investigation, charge sheet U/s 121A/123/120B IPC & 18/20/23 of UAP Act & 4/5 of Explosive Substances Act was filed. After compliance of Section Page 7 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 8 207 Cr.P.C, case was committed to Sessions. During the course of trial accused were charged with commission of offence punishable U/s 18/20/23 Unlawful Activities Prevention Act r/w 120B IPC and 4 & 5 of Explosive Substances Act by Ld. Predecessor on 15.4.2008.
11.To prove its case prosecution examined 24 witnesses in all. It was followed by recording of Section 313 Cr.P.C. statement of accused .
12.I have heard arguments of Ld. Addl. PP Sh. V.K.Negi for State and Ld. Counsel Sh. M.S.Khan Advocate and Ld. Counsel Ms. Pooja Uppal Advocate for accused. I have also carefully perused the entire case file.
13.At the onset it would be appropriate to have glance at the gist of deposition made by PWs.
14.PW1 is SI Devinder Singh who was one of the members of raiding party constituted under the supervision of Inspector Mohan Chand Sharma and he deposed on the lines of prosecution case apart from identifying accused. He identified the articles seized by Police viz, bag as Ex.P1, clothes & artificial jewelery containing therein as Ex.P2, one strolley bag of make Prince Luggage containing some dry fruits, three new packed shirts, one computer CD player, some CDs of Sony, one remote of CD player and one charger as Ex.P3 and P3A (colly) respectively being the same articles recovered from room no,20 of Seema Lodge. PW1 also identified during his deposition before the Court two Page 8 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 9 polythene bags containing dry tea leaves as Ex.P4, some powder type chemical as Ex.P5, Nokia mobile phone model 1600 with IMEI number 355526019838999 with SIM card No. 8991550305007824 as Ex.P6, brown leather purse containing some visiting cards, slips etc as Ex.P7, Rs.4000/ as Ex.P8 (colly), visiting cards as Ex.P9, framed religious picture of Makka Madeena as Ex.P10, one video cassette as Ex.P11 being the same recovered from the room No.20 of Seema Lodge.
15.PW2 Sh. Rafiq Ahmed is Manager of Seema Lodge and he has proved the relevant entries / endorsement made by police showing the seizure of articles from the room No.20. He has also proved the relevant entry dt.31.5.2007 as per which accused Mukhtyar alongwith four persons checked into their lodge in room no.23. PW2 also correctly identified accused Mukhtyar as their client. PW2 also stated that thereafter on 6.6.2007 accused Mukhtar shifted to room no.20.
16.PW3 HC Udiabir Singh took five sealed parcels to CFSL vide RC No.86/21/07 on 9.7.2007.
17.PW4 Shri Narender Singh Rana is a Security Guard who joined the investigation on 12.6.2007 and narrated on the lines of the prosecution case qua the documentation of recovery from accused apart from identifying accused Mukhtyar.
18.PW5 is Sh. A. Dey, Principal Scientific Officer, CFSL who proved his report qua examination of contents of sealed parcels.
Page 9 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 10
19.PW6 is Sh. Rakesh Behari, Principal Secretary, Health & Family Welfare accorded sanction to prosecute you U/s 7 of Explosive Substances Act.
20.PW7 is Retd. SI Mohan Lal who was Duty Officer on 12.6.2007 and he has proved the FIR.
21.PW8 HC Kishna Ram, was one of the members of raiding party, narrated on the lines of prosecution case apart from identifying accused and he also collected result from CFSL later on.
22.PW9 is Shri Rajpal Singh, ATI, DTC proved the relevant record i.e. reservation form of DTC qua issuance of ticket for Lahore from Delhi dt.13.6.2007 apart from producing copy of passport and copy of Pakistani visa in the name of Mukhtiar Ahmad as well as passengers manifesto from DTC Department.
23.PW10 is HC Mohd. Iqbal who joined investigation on 13.6.07 and translated four Urdu Letters and proved the same.
24.PW11 is Sh. Abdul Nasir who was having a PCO Booth at 3815 Churiwalan, Chawri Bazar and he also produced the record of STD Register.
25.PW12 is ASI Mathias Baxla, MHCM who proved the relevant entry of Malkhana Register vide which case property was deposited and later on parcels were sent to CFSL.
26.PW13 is Sh. K.R.Mendiratta, Assistant Director, Department of Food & Supply and Page 10 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 11 Consumer Affairs who proved the sanction order vide which he accorded sanction for prosecution.
27.PW14 is Sh. R.K. Singh, Nodal Officer of Bharti Airtel Limited and he has proved letters dt.27.7.2007 & 28.8.2007 issued by his colleague Sh. Neeraj Patil to ACP, Special Cell .
28.PW15 is Sh. Rakesh Gikaw, Divisional Engineer, BSNL J & K and he proved the letter dated 27.8.2007 vide which the details sought by ACP, Spl. Cell vide letter dated 24.8.07.
29.PW16 is ASI M Baxla (MHCM) who has proved relevant entries of Malkhana Register.
30.PW17 SI Dharmender Kumar is part IO of the case and he was one of the members of raiding party. He deposed about entire investigational steps taken by him during investigation apart from identifying accused as well as recovered articles in the Court.
31.PW18 is Sh. S.K. Yadav, ACP who investigated the case after registration of FIR. He deposed on the lines of the prosecution case apart from identifying accused and case property.
32.PW19 is Sh.Suraj Pal who joined investigation on 31.10.2007 and in his presence recovered detonator were checked and destroyed.
33.PW20 is SI Dilip who joined the investigation in this case with IO on 13.6.07, 14.6.07, 31.10.2007 and supported the case of the prosecution.
Page 11 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 12
34.PW21 is Sh. Baldev Singh, Asst, Central Intelligence Officer, Ministry of Home Affairs proved the relevant record qua visit of accused to Pakistan from 16.2.06 to return to India on 20.6.06.
35.PW22 Major Ashok Yadav proved the summoned record vide which two detonator were destroyed.
36.PW23 Sh. Rakesh Jasrotiha deposed that he never obtained and used the mobile No.9906338939 .
37.PW24 Sh. Ashaq Hussain Dar stated that he never obtained and used the mobile No.9469082706.
38.While opening his argument, LD. Addl. PP argued that the accused deserves to be convicted under all the offences charged in so far as he was caught red handed along with 1.5 kg explosive apart from two electrical detonators and one timer for committing terror activities. It is further submitted on behalf of the state that accused is a member of terrorist organisation LashkarETaiba (hereinafter referred to as LeT) which is banned as per item no.17 in the Schedule attached to UAP Act.
39.As regards merits of the case it is claimed by the prosecution that the accused is a member of banned Terrorist Organisation LeT , and as such he is liable to be convicted for commission of offence punishable U/s 20 of UAP Act. For ready reference the statue is reproduced here under Page 12 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 13 of
40.Section 20 The Unlawful Activities (Prevention) Act, 1967 runs as under:
Punishment for being member of terrorist gang or organisation Any person who is member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
41.Attention of the Court is drawn to depositions of PW1 SI Devender , PW8 HC Kishan Ram, PW17 SI Dharmender and PW18 ACP S.K.Yadav who have stated that secret information was received by the Spl. Cell that Abu Musab @ Thair and Abu Hamza , District Commanders of LeT at Kupwara and Baramula, Kashmir were in contact with Abu Al Kama, Chief Commander of LeT and were planning to execute terrorist activity in Delhi. As per the information they had assigned accused Mukhtyar the job of setting up a base at Delhi. It is argued that for this reason, accused Mukhtar be treated as a member of Terrorist Organisation . Ld. APP has also referred to Section 46 of UAP Act and same has been reproduced herein under for ready reference.
runs as under:
42.Section 46 of The Unlawful Activities (Prevention Act) 1967 Admissibility of evidence collected through the interception of communications - Notwithstanding anything contained in the Indian Evidence Act,1872 (1 of 1872) or any other law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under the provisions of the Indian Telegraph Act, 1885 (13 of 1885) or the Information Technology Act, 2000 (21 of 2000) or any other law for the time being in force, shall be admissible as evidence against the accused in the court during the trial of a case. Provided that the contents of any wire, electronic or oral communication intercepted or evidence derived therefrom shall not be received in evidence or Page 13 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 14 otherwise disclosed in any trial, hearing or other proceeding in any court unless each accused has been furnished with a copy of the order of the competent authority under the aforesaid law, under which the interception was directed, not less than ten days before trial, hearing or proceedings.
Provided further that the period of ten days may be waived by the Judge trying the matter, if he comes to the conclusion that it was not possible to furnish the accused with such order ten days before the trial, hearing or proceeding and that the accused shall not be prejudiced by the delay in receiving such order. (emphasis supplied by me)
43.Upon being asked Ld. Addl.PP has conceded that no specific evidence, either oral or documentary or in any electronic form has been placed , proved or relied on record which could show that accused is a member of LeT or had any proximate or distant nexus with this organisation. Plain reading of the above statutory provision shows that it only saves application of Evidence Act on the "evidence collected" through interception of communication . Although one telephone is shown to have been recovered from a room said to have been occupied by this accused at a lodge in Chawari Bazar but there is nothing on record to show that this phone belongs to the accused or was ever used by him for talking to any other member / commander or Chief of LeT. As per disclosure statement of the accused placed on record Ex.PW1/A dated 14.6.2007, he is shown to have disclosed several phone numbers, detailed supra, as belonging to the three terrorists names supra, but there is nothing on record to show that if these numbers were every used by the said claimed terrorists. Further evidence collected qua them shows Page 14 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 15 that these numbers were operational in the State of J & K and not in Pakistan. As per charge sheet the three LeT Commanders and Chief are living in Pakistan and not in India. Two of these numbers were found issued in the name of PW23 Rakesh Jasrothia and PW24 Ashaq Hussain Dar of J &K but they denied having subscribed these numbers. During cross examination IO PW18 concede that it is scientifically possible to trace a person with an operational phone number. He admitted that absolutely no effort or attempt was made by Spl. Cell to trace either Abu Al Kama or Abu Musab @ Tahir or Abu Hamza in J&K in any manner. This is also evident from the fact that even though Mukhtiar's 10 days Police Custody Remand was taken on 13.6.07 , accused was not taken to J & K even once. Be that as it may neither of these factual inputs go on to show that accused Mukhtiar was a member of LeT as sought to be made out. In the absence of absolutely any iota of evidence whatsoever in this regard , no recourse to Section 46 of UAP Act can be made in the manner sought.
44.Just because a couple of Police Officials of Spl. Cell of Delhi Police have so deposed in their statements in the Court , accused Mukhtar can not be given the tag of LeT Terrorist in the absence of any conclusive proof in this regard.
45.It is evident that LeT has been statutorily notified as a terrorist organisation which has aim and objective of destablising our country but whenever any person is accused of being member of such a terrorist organisation, the agency making such an accusation is Page 15 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 16 supposed to prove it by virtue of cogent legal evidence beyond any shadow of doubt.
46. But absolute lack even any iota of electronic evidence through call interception Section 46 of UAP Act is of no avail to prosecution. As such as far as charge U/s 20 of UAP Act qua being a member of Terrorist Organisation is concerned, it can be safely concluded that the prosecution case is wholly devoid of any material / merit in this regard.
47. As regards charge U/s 18 of UAP Act qua conspiracy or attempt to commit terrorist act , same is corelated with the alleged recovery of explosive substance from the custody of the accused. As such it shall be dealt with separately after dealing with the merits of the alleged recovery.
48.For the sake of ready reference Section 18 of Unlawful Activities (Prevention) Act is reproduced herein under:
18. Punishment for conspiracy , etc. Whoever conspires or attempts to commit or advocates, abets advises or (incites, directs or knowingly facilitates) the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
49.Other offences under which the accused has been charged are Section 4 and 5 of Explosive Substances Act . For ready reference they are produced here under:
of the Explosives Substances Act, 1908
50.Section 4 :
Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property Any person who unlawfully and maliciously Page 16 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 17
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or
(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished,
(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a terms which may extend to ten years, and shall also be liable to fine.
Section 5 of the Explosives Substances Act, 1908 :
51. Punishment for making or possessing explosives under suspicious circumstances Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished
(a) in the case of any explosive substance, with imprisonment Page 17 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 18 for a term which may extend to ten years, and shall also be liable to fine;
(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
52.Before appreciating the merits of the evidence brought by the prosecution on record it has to be borne in mind that it is a settled legal proposition that higher is the gravity of the offence charged , stricter shall be the appreciation of evidence requiring very close scrutiny as to the qualitative nature and believeworthiness of the same.
53.In case titled " Mousam Singha Roy and others v. State of West Bengal" , 2003(12) SCC 377, Hon'ble Supreme Court observed:
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter shall be the degree of proof. A higher degree of assurance is required to convict the accused in a graver offence."
54.In Sharad Birdhichand Sarda v. State of Maharashtra, 1984(4) SCC 116 , it was held:
"We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. It must be recalled that the well established rule of criminal justice is that "fouler the crime higher the proof". In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made." (emphasis supplied) Page 18 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 19
55.In Kashmira Singh v. State of U.P., AIR 1952 SC 159, it was observed :
"The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. In a case of this nature, the Court will move cautiously in view of the grave nature of the offence. For the reasons aforementioned, we are of the opinion that appellant is entitled to benefit of doubt. The appeal is allowed. He is directed to be set at liberty unless wanted in any other case."
56.In case titled State of Rajasthan Vs. Ajit Singh , 2008 (1) SCC 601 While handling case under TADA, Hon'ble Supreme Court observed that "In a case under such like harsher penal statues, the provision of laws and rules should be scrupulously observed."
57.As far as factual matrix is concerned, at the onset it is observed that the first input which is said to have set Spl. Cell of Delhi Police into motion is a secret information received by the Cell in May' 2007. Surprisingly neither any specific date, time and place of receipt of such information is available on the entire record nor this information was reduced into writing in the form of any DD entry. There is no cogent explanation available on record for not reducing this vital information into a document.
58.Similarly, with regards to information shown to have been received on 30.5.2007 as well , no official of Spl. Cell recorded any DD Entry yet again. This Court is at a loss to perceive as to why officials of a disciplined force should not record the claimed important Page 19 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 20 secret inputs in writing even though they are supposed to be fully aware of the legal requirements in this regard and the sentivity attached to such inpurts.
2008(2) S.C.C. 370
59.In case titled Directorate of Revenue v. Mohammed Nisar Holia, it has been held by Hon'ble Supreme Court that :
"In case of receipt of secret information, the officer who receive the secret information is bound to reduce such information in writing himself."
60.In Case titled, "Peeraswami Vs. State of NCT Delhi", 2007 (4) R.C.R. (Criminal) 339 while dealing with the case under NDPS Act and highlighting the importance of procedural safeguards against false implications of individuals it was observed by Hon'ble Delhi High Court, "This procedure is not a mere formality for the sake of it but it provides the safeguard against false implication of persons."
While referring to specific provisions of the Act Court further ruled that The statute mandates that the police officer shall not only necessarily record secret information in writing but also casts duty on such officers to send a copy of such information immediately to his superiors. Court opined that non compliance of safeguarding procedure would make a prosecution story doubtful.
61.Similarly, in case titled, "B. Abdul Rehman Vs. State of Kerala" 2002 AIR SC 1810 Hon'ble Supreme Court highlighted the importance of reduction of secret information in writing while terming it as a safeguarding provision apart from Page 20 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 21 other such provisions in Criminal Procedure Code.
62. Similarly, in Constitution Bench Judgment titled, "State of Punjab Vs. Baldev Singh" 1999 (6) SCC 172 Hon'ble Supreme Court highlighting the importance of procedural safeguards provided by the Act as well as Criminal Procedure Code. It was also mandated that Law casts duty on the prosecution to strictly follow the safety procedure and ensure their strict compliance.
63.The above statutory laws clearly show that recording of such like sensitive informations into a writing in a document is not only a legal necessity but is also a harbinger of safety and fair play. Such has been the evasiveness of the investigation since the initial stages that neither the chargesheet nor the depositions in chief of PWs there is any mention as to who received this information and from which source. Even the date and place of receipt of this information is missing. Non reduction of this input into writing is of pivotal importance in this case because the name of accused and the place he hails from were already in the knowledge of the Cell. In his deposition in the Court, IO PW18 has categorically stated that they had specific information about the particulars of accused Mukhtyar as per which he was supposed to set up a base in Delhi. Even this information was not reduced into writing. This failure on the part of Investigating Agency does not appear to be a casual one. Rather it appears that either the story of receipt of input was introduced subsequently according to what suited the IO or else the inputs Page 21 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 22 received were of different nature which were not placed on record as they might not had suited the line of investigation. Evidence Act provides for drawing of an adverse inference against any party which withholds evidence from the Court.
64.This non production of any written report qua receipt of claimed secret inputs calls for invocation of Section 114 illustration (g) of Evidence Act and adverse inference is liable to be drawn against the State that had they produced any such report , it would have proved unfavourable to them.
runs as under:
65.Section 114 (g) of Evidence Act Section114 (g) of Indian Evidence Act :The court may presume that evidence which could be and is not produce would, if produced, be unfavourable to the person who withholds it;
66.Here the above statutory provision has to be looked upon not as a procedural requirement but rather it has to be looked upon as a rule of prudence and fair play. When one talks of act of State as ruled by Hon'ble Supreme Court in Menaka Gandhi's case , State is duty bound to act in just, fair and reasonable manner.
67.In case titled Karmesh Kumar Singh Vs. State of UP, AIR 1968 SC 1402, Hon'ble Supreme Court held that : " Court can draw an adverse inference if the material witness is withheld."
68.The callousness of the investigation is also evident from the fact that according to IO the initial secret inputs were received by Inspector Mohan Chand Sharma but this fact does Page 22 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 23 not find any mention whatsoever in the entire chargesheet so much so that even the Section 161 Cr.P.C. statement of this Inspector does not mention that he ever received this information. Further more as per IO he was briefed by Inspector Mohan Chand Sharma about the receipt of secret input but as per the statement of Inspector recorded during investigation it was the ACP who briefed him. The goofup about receipt of secret information qua name of accused and three other persons is further evident from the fact that there is nothing on record to show that this input was shared by Spl. Cell with any other Investigating or Intelligence Agency. Once an input which is said to be so vital that the capital city would be bombed is firstly not reduced into writing and secondly not shared with other Intelligence Agencies. This indicates that there is something seriously amiss either with the claimed secret inputs or with the functioning of Spl. Cell.
69.Further more it has been conceded by the IO PW18 that absolutely no attempt was made to either share or even cross check the claimed secret inputs qua accused or the aforesaid three persons named as LeT Operatives. The IO has conceded that it is possible for Investigating Agencies to zero in on a person who is using a mobile phone by adopting technical surveillance. But despite having specific inputs qua the mobile phone numbers of the claimed three operatives. Absolutely no attempt was made either to put any of those phones on surveillance or to trace and arrest the said LeT Operators with the help of J&K Police or the Army. Even though Spl. Cell was granted 10 days Page 23 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 24 PC of accused, no member of the Spl. Cell visited J&K to ascertain or cross check the claimed important inputs.
70.This case is shown to have been cracked on third secret input dated 12.6.2007. In cases pertaining to secrete informers , although it is a settled legal proposition that the name , particulars of the informer can be kept secret for their safety but Hon'ble Superior Court has always issued a word of caution to the Trial Courts that evidence of prosecution cases in such like matters has to be carefully and meticulously assessed.
71.In case titled Gurdial Singh Vs. State of Punjab (P&H) 2004(2) RCR (Criminal) 745 it has been observed that:
"It is well settled law that in case of secret information, the investigation agency must join some independent witnesses. This requirement of joining of independent witnesses is only to ensure that what the official witnesses are deposing is supported by such witnesses............... Accordingly , I do not feel safe to maintain the conviction of the petitioner."
1998(4) R.C.R.
72.In case titled Darshan Singh v. State of Punjab, (P&H) (Criminal) 164 it has been observed:
"In this case, conviction is resting on the testimony of ASI Harbans Singh and that of Constable Gurdial Singh. There is no corroboration to their testimony by independent evidence. No independent witness was joined in the raid by ASI Harbans Singh though ASI Harbans Singh was proceeding on receipt of secret information which he thought to be reliable. ASI Harbans Singh ought to have joined some independent witness when he was going to raid the house of the accused. Apprehension of Darshan Singh petitioner was not sudden. His apprehension was in pursuance of receipt of some secret information , which was that Page 24 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 25 he was in the habit of distilling illicit liquor and if a timely raid was conducted at his house, illicit liquor could be recovered from his house. Further PWs are discrepant with each other. One PW has stated that the informer accompanied them upto the house of the accused and he pointed out to them the house of the accused while other PW has stated that informer parted them on the way. In my opinion, it would not be safe to convict the accused on the sole testimony of police officials who have not been corroborated by any independent evidence. Police officials as we know, are interested in the success of the case detected by them and to achieve success in the case detected by them, they show sometimes vehemence also."
73.In the matter in hand the role of secret informer appears to have been stretched beyond a limit in so far as on the one hand PWs claim to have come to know about the identity of the accused on as early as 30.5.2007 in so far as they claim to had kept a 24 x 7 secret watch over him up to the morning of 8.6.2007, but on the date of arrest i.e. 12.6.2007 , they still needed the services of secret informer for identifying the accused at Azad Pur Mandi Gate. The language used in the deposition by the witnesses viz. " the secret informer identified him as one Mukhityar Ahmed" shows either they were not aware about the identity of the accused any time before that day or that the story of his arrest at the Subzi Mandi was devised subsequently.
74.Another very vital aspect in this case of the pre arrest period of investigation is that even though police is shown to have kept "technical surveillance and secret watch of accused Mukhityar from 30.5.07 upto 8.6.07 " , there is absolutely no figment of evidence to show as to how the so called technical surveillance was kept and what scientific or electronic Page 25 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 26 gadgets were used. A person who is shown to have been shadowed and tailed 24x7 for more than a week has neither been photographed or videographed even once. Despite the fact that he is claimed to have been carrying a mobile phone , the said phone was never put on surveillance / secret tape recording. It was very easy for the police to ascertain his phone number in so far as accused Mukhtar had evidently stayed in Seema Lodge in his own name, parentage and address and his phone number stands duly mentioned in the Guest Entry Register Ex.PW2/1. As per the Guest Entry Register two telephone numbers are found mentioned against the name of the accused and other persons who checked in with him which are 9419460774 & 9919963931. It is of utmost surprising that the entire investigation and the charge sheet is absolutely silent about these two phone numbers and the phones . Neither any endeavour was made to ascertain the ownership and call records thereof nor any cross checking qua the same was done. When accused is mentioning his actual name, parentage, address etc. in the Lodge Register along with the phone numbers , sheer non verification of the phone numbers indicates the non serious attitude of the investigating agency. On the hind side totally different number i.e. 9906731639 was apparently planted over him in so far as it was neither subscribed by nor it contained any telephone number of any acquaintance of accused. Although 29 phone numbers are shown to have been fed in this phone as per memo Ex.PW1/A but not a single person of out of those 29 was cited as a witness to Page 26 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 27 bring on record that the claimed recovered phone was used by the accused at any point of time. Yet again the failure on the part of police to collect and place on record any such evidence, call for drawing of an adverse inference against them either no such surveillance was kept by them or if so kept, it did not support the prosecution story as unfolded in this chargesheet.
75.Also the Guest Record of Seema Lodge shows that accused was not alone when he checked into the lodge but the investigation is totally silent qua the identity of the remaining persons whose names and addresses are also available in the register. Even otherwise it is not natural that a person who is claimed to be a terrorist would stay in a lodge in Delhi in his own name and parentage carrying his passport and other travel documents in the manner shown. Failure on the part of Spl. Cell to either detain him and ascertain the truth about his visit during his said 8 days stay is not natural. The plea of Spl. Cell of loosing him suddenly on the morning of of 8.6.2007 is also not natural that too by leaving his belongings especially his alleged mobile phone in the Lodge itself. It is grossly unnatural for a person who is claimed to be a terrorist to leave his mobile phone behind in Delhi in his hotel room while leaving for Kashmir to collect explosives. Moreso, when according to the Police , accused was constantly in touch with his masters on this phone alone. The story of leaving the phone appears to have been deliberately introduced by police in order to avoid explaining lack of Cell Tower Tracking Movement Page 27 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 28 of this phone from Delhi to all the way to Kashmir and back between 8.6.2007 and 12.6.2007. Had they shown that the accused carried the phone along , police would have naturally been asked to track, cross check and produce the phone movement during this period. It is highly improbable that a person in these circumstances would travel without a communication device and would endeavour to deliver RDX without any mode of communication.
76.Another improbable aspect in this case is that as per personal search memo of accused , he was carrying only Rs1200/ cash and his Icard of some Pvt. Company at Kupwara but he was not having any key of his room at Seema Lodge. As per PW2 Rafiq Ahmad, Manager of the Lodge , the room was opened by the Police with the help of a duplicate key. It is highly improbable that accused would not be carrying the original key of his room on 12.62007 despite the fact that his belongings were lying in the room . It is not the case of the prosecution that accused had left the original key at the counter of the lodge. Had that been so , duplicate key would not have been put to use by the Police.
77.Also this is most unnatural and unprofessional for Spl. Cell to not to raid accused's room at Seema Lodge between 8.6.2007 when he said to have disappeared and 12.6.2007 when he is shown to have resurfaced with explosives. Given the magnanimity of claims made by Police at the time of arrest of accused of being a LeT Terrorist, accused might have fitted a live Bomb at the lodge , which is in a thickly populated area of Old Delhi.
Page 28 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 29 How can police be so at ease at not visiting the room at Seema Lodge for 5 days? It is highly improbable. Similarly they allowed the four other persons who checked into the Lodge , to walk away from the Lodge, despite 24x7 shadowing. If Cell is to be believed , they could have been hard core terrorists. But the sheer fact that no such thing was done by Spl. Cell shows that they knew that they were not terrorists and there was nothing to fear about them.
78.Furthermore, even though six unproved DDs have been placed on record from 30.5.2007 to 3.6.2007 qua collection of secret information but not even one out of them contain even a whisper of tracing and tracking of Mukhityar even though as per the case accused was under the watchful eyes of police between 30.5.07 to morning of 8.6.2007. Also there is nothing on record to show that suddenly on 8.6.2007 , Police lost his track or that it caused any alarm or commotion with the Police.
79.It is interesting to observe that even though police was aware of his name, parentage , phone number etc. right from 30.5.2007 but still in DD No.8 dated 12.6.2007 Ex.PW17/A, the first written document in this case, qua receipt of secret information , accused has been referred to as "one Mukhtar R/o Kupwara , J&K". Usage of these specific words indicates that there is something seriously amiss in the manner in which police has unfolded the facts of this case. Atleast in this DD, police was supposed to mention that accused Mukhityar is the same person who was under their survillance for around 9 days Page 29 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 30 and who had gone missing on 8.6.07. All this arouses grave suspicion in the prosecution case.
80.Another interesting aspect of the matter is that all the PWs have maintained that it was PW20 SI Dilip who was assigned the duty of shadowing and keeping a watch on the accused right from 30.5.07 but in his deposition in the Court SI starts his deposition with his role only qua post arrest stage . He is totally silent qua playing any role in this case prior to 13.6.07. This fact too is quite damaging for the prosecution case.
81.Further more it is interesting to observe that Spl. Cell did not press the services of coveted secret informer on 30.5.2007 when they claimed to have traced and put accused Mukhtyar under watch but they used the services of the secret informer only at the time of claimed detention at Subzi Mandi Gate. This means that Cell tracked Mukhtar only by the Hotel / Lodge Entry Register. Had Mukhtar been a LeT Terrorist, he would have been definitely disguised himself by using a fake or acquired name.
82.As far as the proceedings carried out on 12.6.07, prior to apprehension of the accused , rd are concerned, it is evident that the 3 secret input was shown to have been received by PW17 SI Dharmender as per DD No.17A at 12 noon. This input reveals that accused would come to Delhi with a huge consignment of explosives and would supply it to one person at Azadpur Mandi Gate at 4.30pm. Even though police had flat 4½ hours time for roping in credible independent public witnesses but it is evident that no such sincere Page 30 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 31 attempt was made. The distance between Office of Spl. Cell at Lodhi Colony and the claimed place of arrest at Azad Pur Mandi Gate must be more than 20 kms. The whole stretch on the way is dotted with numerous Government Offices, Schools , Post Offices etc. from where independent public witnesses could have been joined. Moreso, when the time of apprehension was day time during office working hours. Even after reaching the spot no sincere effort appears to have been made by the police to rope in any independent public witness prior to apprehension of the accused despite the fact that Azad Pur Mandi is always thronged by public persons and Agriculture Produce Market Committee (APMC) Office is also situated there.
83.Although it is a settled legal proposition that unless there are reasons, deposition of police witnesses can not be disbelieved. But simultaneously it is also a settled legal proposition that in such like matter police should make sincere effort for joining the public witnesses. Although PW4 Narender Singh Rana has been examined as a public witness but it is conceded by the State that he was roped in only during the recovery documentation after the accused was already apprehended. This fact is evident from the examination in chief of this witness wherein he said that he noticed accused for first time when Mukhtar was in custody of police officials. Second such witness joined was not produced in the Court which call for adverse inference U/s 114 (g) Evidence Act. Even otherwise presence of this witness PW4 at the spot is under serious clouds in so far as Page 31 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 32 even though he is shown to be working as a Security Guard at Azad Pur Mandi Gate with M/s Sangam Security but he has not produced any original identity card , pay slip or any such reliable document in support of his this plea. It is unbelievable that a person who volunteers to become a witness post the arrest of accused could not be traced by the police at that very spot prior to the arrest of the accused despite so called attempts by Raiding Party. Even otherwise this PW4 does not have any business establishment close to the spot which could justify his presence there and as such he appears to have been brought to the spot subsequently only in order to give colour to this case. This appears to be a deliberate act of over doing on the part of the Police Officials which itself arouses suspicion.
84. It is a legal mandate that joining of public witness grants credence to the prosecution story. The importance of joining of public witness is not only a rule of procedure and fair play but it is also a statutory requirement as per Section 100 Cr.PC. Although it pertains to search of the closed place but usage of the word " shall call upon two or more independent and respectable inhabitants of the locality" underline the importance of joining of public witness.
2000(2) R.C.R.(Criminal) 666
85.In case titled Massa Singh v. State of Punjab, (P&H) it has been observed that :
"the Investigating Officer inspite of the fact that he received a secret information did not associate any independent witness Page 32 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 33 when he had the ample opportunity to do so. It is the admitted case of the prosecution that ASI Arjinder Singh received the secret information that a tractortrolley carrying illicit liquor was going to village Talwandi Nepalan via Maujgarh and he further found the information as reliable.
In these circumstances, it was obligatory on the part of the Investigating Officer to take the assistance of the independent witness from a nearby village. Even if it is assumed for the sake of argument that the Investigating Officer had no time to associate any independent witness and he was in hurry to arrest the petitioner at the first instance still, the policeparty must have remained at the spot for the sufficient time keeping in view the nature and contents of the recovery. The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Courts below. There is no quarrel with the proposition of the law that the statements of the police officials can be acted upon and it cannot be rejected outrightly simply because they possess the official status but before acting upon such statements the rule of prudence requires that the statement of such witness must inspire confidence in the mind of the Court."
2007(1) SCC(Cri) 744
86.In case titled Ritesh Chakarvarti v. State of Madhya Pradesh, it has been observed by Hon'ble Supreme Court that "If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken."
87.In case titled State of Punjab v. Baldev Singh, 1999(4) JT SC 595 : 1999(3) RCR (Crl.) 533 (SC) it was held that:
Page 33 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 34 "The provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the Act also to be extent they are not inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the Act are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguards would be violative of the reasonable, fair and just procedure."
88. In case titled Sahib Singh v. Sate of Punjab, 1997 A.I.R. (SC) 2417 it has been observed by Hon'ble Supreme Court that :
"Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
89. In Maneka Gandhi v. Union of India, 1978(1) SCC 248, it was held that "when a statute itself provides for a reasonable, fair and just procedure, it must be honoured. Thus, an accused has the right to a reasonable, fair and just procedure. The statutory provisions embodied in Sections 41 to 55 and Section 57 of the Act and Page 34 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 35 Sections 100, 102, 103 and 165 of the Code of Criminal Procedure provide for a reasonable, fair and just procedure. Section 43 of the Act read along with subSection (4) of Section 100 Cr.P.C. contemplates that search should, as far as practicable, be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to establish that the association of such witnesses was not possible on the facts and circumstances of a particular case. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Thus, the statutory desirability in the matter of search and seizure is that there should be two or more independent and respectable witnesses. The search before an independent witness would impart much more authenticity and creditworthiness to the search and seizure proceedings. It would also verily strengthen the prosecution case. The said safeguard is also intended to avoid criticism of arbitrary and highhanded action against authorized officer. In other words, the Legislature in its wisdom considered it necessary to provide such a statutory safeguard to lend credibility to the procedure relating to search and seizure keeping in view the severe punishment prescribed in the Act. That being so, the authorized officer must follow the reasonable, fair and just procedure as envisaged by the statute scrupulously and the failure to do so must be viewed with suspicion. The legitimacy of judicial process may come under could if the Court is seen to condone acts of violation of statutory safeguards committed by the authorized officer during search and seizure operations and may also undermine respect of law. That cannot be permitted. It is undisputed that no public witness was associated during the course of search and seizure proceedings and the prosecution case hingessolely on the testimony of the police officials. As per prosecution case, the secret information was received at 6.20 p.m. and the appellant was apprehended at 7.05 p.m. Thus there was sufficient time to procure attendance of public witnesses to witness the search and seizure. This is not a case where due to urgency of the matter or for any other reason, it was not possible to comply with the provisions of subSection (4) of Section 100 for associating public witnesses during the course of search and seizure. It is also undisputed that the appellant was apprehended in the market, which Page 35 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 36 is a crowded place. Prosecution witnesses Constable Raj Kumar (PW3), SI Rishal Singh (PW4), SI Pannalal (PW5), A.C.P Manaktala (PW8) and A.C.P. J.S. Rana (PW11), who were members of the raiding party, want us to believe that at the relevant time public witnesses were approached but they declined to join the raiding party. It is worth mentioning that the evidence of the said police officials is conspicuous by the absence of any description as to who were the persons who were asked to witness the search and seizure and whether they were called upon to do so by an order in writing. Reference may in this context be made to the provision of sub Section (8) of Section 100 Cr.P.C., which provides that any person, who without reasonable cause, refuses or neglects to attend and witness a search under Section 100 of the Code, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 IPC. In the instant case, there is nothing to indicate that the authorized officer had served or even attempted to serve an order in writing upon any public witness as envisaged by sub Section (8) of Section 100 Cr.P.C. In this connection" . (emphasis supplied)
90.In case titled Rattan Lal v. State, 1987(2) Crimes 29 it has been observed that :
".....In the case in hand the seizure and the arrest have been made under Section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by sub section (4) of Section 100 Cr.P.C. The explanation offered is that public witnesses were requested but they declined to cooperate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that for a variety of reasons public witnesses may decline to associate themselves but generally speaking it does not so happen. If a public witness declines to cooperate without reasonable cause inspite of an order in writing, to witness the seizure and search, he will be deemed to have committed an offence under Section 187 I.P.C. and this has been clearly spelt out in subsection (8) of Section 100 Cr.P.C. In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in Page 36 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 37 writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the legislative safeguards." (emphasis supplied)
91.As far as the raid is concerned, it is the case of the prosecution that accused was spotted and identified by secret informer at Azad Pur Mandi Gate . As per legal proposition once the informer is made a part of the raiding team he could have been examined as a witness as well as per undermentioned judgment.
2007(4) R.C.R.(Criminal) 339
92.In case titled Peeraswami v. State NCT of Delhi, while dealing with a case wherein informer accompanied the raiding party, Hon'ble Delhi High Court held that :
"The other factors which throw doubt on the story of prosecution is that the secret informers are nourished by the police to receive informations about the crimes. They are never brought face to face before the accused persons because that puts their lives in danger, neither their identity is disclosed to the courts and courts also do not insist upon their identity. But in the instant case, it is testified by Sub Inspector Raj Kumar that despite the fact that secret informer had given specific address where the trade of smack and charas was being carried out, the secret informer was made a part of the raiding party. He was taken to the spot and he also pointed out to the appellant Peeraswmi and at his pointing out the appellants were arrested. If the identity of the secret informer was not so secret and he could accompany police party up to the house and come face to face with the appellant, there is no reason why he could not have been produced in the court for deposition. The entire story of secret informer in fact is falsified from the testimony of PW14, who stated that the information was received on telephone."
Page 37 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 38
93.In case titled , "State of Punjab Vs. Kushal Singh Patania" 2004 (4) RCR Criminal 498 Hon'ble Supreme Court while dealing with prevention of Corruption Act matter observed, " The police officer who conducted the search ought to have offered himself for search."
94.Another circumstance which arouses suspicion in this case is that all the documents which were prepared prior to registration of FIR contains FIR No. On this score in case 2000 Cri.L.J. 1589 titled Zofar v. State, (Delhi) it has been observed that :
"The number of the FIR (Ex. P.W. 1/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting which clearly indicates that these documents were prepared at the same time. The Prosecution has not offered any explanation whatsoever as to under what circumstances number of the FIR (Ex. P.W. 1/B) has appeared on the top of the aforesaid documents, which were allegedly prepared on the spot before registration of the FIR. This gives rise to two inferences that either the FIR (Ex. P.W. 1/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations it seriously reflects upon the veracity of the prosecution version given by the aforesaid witnesses and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
95.In another case titled Rajbir Singh v. State, (Delhi) 2000 Cri.L.J. 1652 while dealing with search and seizure of Recovery of contraband material from accused it was observed, " All documents such as intimation of secret information , notice under Section 50, seizure memo etc. bear number of FIR, in same ink and same handwriting showing that all these documents prepared at same Page 38 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 39 time - Such like serious infirmities in prosecution case overlooked by the trial Judge . Conviction and sentence deserve to be set aside"
96.As far as claimed seizure of explosives is concerned, it is case of the prosecution that 1.5 kg of oil based explosive was seized but it is evident that the claimed explosive consisted of 15 individual separate sausage shaped mounds wrapped in separate polypacks. But still the sample of only 10 gm each was lifted from two of the 15 packets without even touching the remaining 13. This appears to be grossly wrong way of lifting samples. Ideally the whole recovered substance ought to have been sent for testing.
97.In case title G. E. Kricher Vs. State of Goa 1993 (1) Vol. 4 Crimes SC 1183 it has been observed that :
" If it is not practical to send the entire quantity for chemical analysis, then sufficient quantity by way of samples from each of the packet and piece should be sent for chemical examination."
98. As such the claimed 20 gms sample does not conclusively show that the entire seized material was explosive substance. Non drawing of any sample from the remaining 13 packets is a professional folly on the part of Police Officials as a result of which it could not be established on record as to what was contained therein. Benefit of same shall naturally go to the accused. Contents of those packets can not be presumed to be explosive material as sought to be argued by Ld. Addl. PP.
99.Another serous legally folly committed by Cell during investigation is that even though it Page 39 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 40 is settled legal proposition that any material seized which is supposed to be sent for testing to a Forensic Lab, the same shall be sent as early as possible without any delay, they kept on sitting over it for month. Plethora of case laws lay that each day delay adds to suspicion of tempering of exhibits. It would be handy to have a glance at these precedents.
too provide that seized
100.Chapter 18B , Part III of Delhi High Court Rules and Orders articles shall be sent for chemical analysis without any delay .
101.In case titled Baldev Singh Vs. State of Punjab, 1991 SCC (Cr.) 61 it has been observed by Hon'ble Supreme Court that :
"In a case where pistol and cartridges were sent after a delay of about 10 days, such delay in sending the crime articles to the lab creates doubt about their connection with the crime."
102.In case titled Ten Singh Vs. State, 1996 (1) RCR 343 it has been observed that : ''Inordinate delay in sending sealed parcel to Forensic Science Lab creates suspicion and throws doubt on the bonafides of the investigation.''
103.In the case in hand the said explosive substance and other material are shown to have been seized on 12.6.2007 but as per RC Ex.PW16/B, the exhibits were sent after about a month on 9.7.2007. There is no explanation for this delay of about one month in sending of exhibits to the CFSL even though the claimed material was prematurely considered to be RDX and supposed to be used for bombing Delhi. The suspicion & Page 40 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 41 scope of tempering is further aggravated in so far as the seal of DK which was appended on the claimed explosives on 12.6.2007 and was shown to have been initially handed over to PW4 Narender Singh Rana , was taken back from him just after 10 days on 23.6.2007. This means that for around two weeks before the samples were sent to the CFSL both the seals and the parcels were with initial IO of the case. All this creates serious doubt in the prosecution case.
104.Such has been the shallow and lackadaisical investigation that even though 1.5 kg explosive was shown to have been recovered from accused and police was granted 10 days Police Custody Remand , absolutely no endeavour was made to take the accused to J &K to track and nab the source of the explosives . Even his permanent residential address was not conclusively verified as per Parcha 12 under PPR No.26.7 of Chapter XXVI of Punjab Police Rule . This can not be said to be a professional approach to such like sensitive cases. Also no sincere efforts were made to trace Shabir shown to have been named in the disclosure, who was supposed to receive the claimed consignment. There is nothing on record to show as to how accused was supposed to contact or identify Shabir at the time of claimed delivery. Neither any description of any such person nor any code word or identification mark was ascertained during the investigation so as to add credence to this part of the police story. All this indicate that police was not sincere in ascertaining the entire truth and was out at making an open and Page 41 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 42 shut recovery case against an individual.
105.The overdoing on the part of police is also evident from the fact that without any preliminary testing or chemical examination, it termed the recovered material to be 1.5kg of RDX but as per FSL Report Ex.PW5/A it was found to be CE based Explosive.
106. Even with regard to competence of expert examined by the police i.e. PW5 Sh. A. Dey, it is revealed that he is only qualified in Physics and is not even a Chemistry Graduate. Competence of an expert is a serious issue which goes to the root of the matter. In 1962 Cur.LJ 99, it was held "Opinion of a witness who has not received any specialised training on the subject on scientific basis, deserves scan consideration"
107.The report Ex.PW5/A qua the claimed Explosive Material is found to be very cryptic as all it contained is that "PhysicoChemical and TLC Test confirmed the presence of CE based High Explosive" . Firstly this one line report does not contain the purity percentage in so far as it only reveals "presence of explosive in sample" which definitely leaves a scope of presence of other non explosive contents as well. Even the expertise of PW5 appears to be under cloud in so far as he was not even aware that Part I, Schedule I of Explosive Rules'2008 divides Explosives into 8 different Classes. The said Expert was not even aware that as per Rule 5 Under Explosive Rules'2008, according to the risks posed by the Explosive , they are divided into 4 categories Page 42 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 43 namely Category X, Category Y, Category Z and Category ZZ. Upon being asked in his cross examination , he gave a plain reply that as per his knowledge explosives are only two types namely Low Explosive and High Explosive.
108.Although record is silent over the details of the opinion of the Expert examined by the Police but in the report , the usage of term "CE" stands for "Composite Explosive" . As per Mc Graw Hill Science and Technology Dictionary " Composite Explosive is the mixture of substances which consumes and gives of Oxygen together with one or several simple explosives. Its examples are Dynamite, AMATOL , ANFO , OCTOL, MINOL and COMP C4 etc. The CFSL Report relied by the prosecution is conspicuously silent on the type of CE Explosives. It is evidently upheld that the reason thereof is want of technical know how on the part of said Expert.
109.Even the term TLC used in the said Test, has not been elaborated. The TLC Test stands for Thin Layer Chromatography. It is considered to be a very basic test conducted in a miniatured wet lab. It has extremely low detection limits and that too within given range. Other Tests which score above the TLC are HPLC i.e. High Perfomance Liquid Chromatography and NIR i.e. Near Infra Red Tests . World over TLC Kits are used only for basic presumptive identification of explosives by non technical person in fields. But for lab test, being a leading Forensic Lab of the Capital , CFSL ought to have adopted better and safer tests in tune with the procedures adopted by Page 43 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 44 leading Forensic Laboratories world over. This is high time that Premier Forensic Agencies like CFSL should shed the primitive Methodology and should recruit qualified Scientific Expert of each field. Moreso, when the opinions penned by them decide the life and liberty of scores of accused persons. All this reveals that the said Expert was ill informed about the explosives and it is not safe to rely on his expertise and opinion.
110.In case titled Hazi Mohd. Ekramul Haq Vs. State of West Bengal, AIR 1959 SC 488, Hon'ble Supreme Court ruled:
" Opinion of an Expert unsupported by reasons is unreliable."
111.Further more, Rule 6 of Explosive Rules'2008 provides that in order to Manufacture, Import, Export, Transport, Possess sell or use any explosive , an applicant is supposed to submit detailed application explaining the nature of the explosive and the Chief Controller may seek samples thereof for its testing at Departmental Testing Stations. The test through which the explosive samples undergo are also enumerated in Rule 6 (7)
(ii) of Explosive Rules '2008 which are reproduced hereunder for ready reference:
runs as under:
112.Rule 6 (7) (ii) of Explosive Rules'2008 (7) (i) Sample forwarded under subrule (4) shall be subjected to such of the tests enumerated in clause
(ii) of this subrule are as necessary having regard to the nature and type of explosive submitted to ensure that the explosive is capable of being safely manufactured, handled, stored transported and used.
(iii) The tests referred to in clause (i) pertain to Page 44 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 45
(a) Physical properties including consistency, reaction tendency to absorb moisture, segregation in transport or otherwise of the constituents, exudation, behaviour at low temperatures, specific gravity and such other physical properties as may be considered necessary;
(b) Chemical composition determination of the percentage composition of the ingredients forming the explosive, and the quality of the ingredients employed in this manufacture;
(c) Stability determination of stability after subjection to such varying environmental conditions as would tend to produce spontaneous ignition or variation in sensitiveness of an explosive
(d) Ignition characteristics ignition point, behaviour on ignition liability to spontaneous ignition, behaviour on ignition in bulk;
(e) Mechanical Sensitiveness determination of sensitiveness to friction and impact;
(f) Air Gap and Transmission of Detonation;
(g) Velocity of Detonation;
(h) Determination of Strength;
(i) Composition of Gases Evolved Upon Explosion;
(j) Ensure that Plastic Explosives are detected by Vapour detection technique;
(k) Such Other tests and field trials as the Chief Controller may specify.
113.Perusal of the aforesaid one line cryptic report and the cross examination of the claimed Ballistic Expert reveals that not even one of the aforesaid 10 different tests provided for checking an explosive sample was satisfactorily undertaken by the said Expert with the two 10 gms samples sent by the Police to him. Such is the shallowness and unreliability of the said Expert Report that PW5 has conceded that he prepared the report only on what was asked by the IO . Upon being asked the said Expert concedes that he did not at all check the said sample for its strength , density, intensity , velocity, quality, temperature and percentage of its composition. It is not expected of a Forensic Expert Page 45 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 46 that he should limit his such reports to only those facts which suit the police. Rather an Expert, who is supposed to be an independent individual , is expected to use his Scientific Know How by undertaking all the Scientific Tools and Methods available to him in an independent manner before arriving at any conclusion . It is a serious case involving life and liberty of a person protected under Fundamental Rights of a Citizen enshrined in Article 21 of our Constitution. Even with regard to the claimed electronic detonator and timer the said Expert has fairly conceded that he can not say whether they could have been used as timing devices. Even though the PW5 is only a Physics Expert and had no qualification or exposure to Electronic Devices and Gadgets, he was made to give opinion about the claimed detonators and timer. As such I have no hesitation in concluding that Expert Report appears to have been clandestinely prepared in a hurried manner without adhering to statutory rules and as such score very low on reliability scales.
114.In case titled Malay Kumar Ganguli Vs. Dr. Sukumar Mukherjee , 2009 (4) RCR (Cr.) 1 Hon'ble Supreme Court held , " The expert witness should have a fair , reasonable competent degree of skill ; his opinion must be based on spl. skill and knowledge of the subject ; his opinion is advisory in nature and not binding on Court ."
115.Another important aspect of the matter is that as per initially received unrecorded secret inputs accused Mukhtar was supposed to set up a base in Delhi but there is nothing on Page 46 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 47 record to show that any amount of substantially huge cash was recovered from him which could have been used to purchase or rent a property in Delhi to set up a base. A person holding Indian Passport , valid travel Visa for Pakistan and who has booked a ticket in his own name for traveling by Delhi Lahore Bus and who checked into a lodge in Delhi in his own name and other particulars does not at all appear to be a person who has come to set up a terror base in Delhi. Nothing incriminating which could suggest that accused was in the preliminary or final stages of setting up of a terror base in Delhi was recovered from his room in Seema Lodge. Simply because accused was desirous of legally visiting Pakistan in order to see his relative and attend a marriage there , he can not be looked upon suspiciously and coloured to be a terrorist.
116.As regards deposition of PW14 Sh.R.K.Singh Nodal Officer, Bharati Airtel Limited qua mobile no. 9906731639, shown to have been recovered from the room at the Lodge. It is shown to have been issued in the name of one Nazeer Ahmad Lone of Soopor, J&K. This person has not been examined by the prosecution as a witness. Certain call records of this number from 24.4.2007 to 23.7.2007 have been placed on record but in the absence of any certificate under Section 65B Evidence Act, the same can not be legally read and relied. Even otherwise these call records are inconsequential. The six other phone numbers mentioned supra in para 7 of the judgment, are claimed to have been that of other LeT operators but as per connection record placed in this Page 47 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 48 chargesheet , they too appear to be belonging to other J&K residents namely PW23 Rakesh Jasrothia , PW24 Ashaq Hussain Dar and others and to terrorists as claimed by Police. Also PW14 could not have proved the letters Ex.PW14/A, PW14/C in so far as according to him, he has never worked with Neeraj Patil, signatory of these documents.
117.Another plea taken by Ld. Counsel for accused is that no charge of Section 4 of Explosive Substance Act is made out against the accused in so far as there is nothing on record to show that accused had any intention to cause any explosion. It is admitted case of the prosecution that accused was not even allegedly carrying complete detonable bomb which could have exploded in that form or that it required its diffusion at the spot.
118.In case titled Major Singh Vs. State of Punjab , 2001 Crl.LJ, 3715 Hon'ble High Court ruled " mere recovery of detonator fuses would not bring the case under the provisions of Explosive Substances Act"
119.It has also been argued on behalf of accused that the sanction accorded in this matter Ex.PW6/A is U/s 7 of Explosive Substances Act is not legally tenable in so far as it has not been granted by a "District Magistrate" as required by the Statue.
Section 7 of Explosive Substances Act - 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."
120.It is argued that the sanction in this case has been granted by PW6 Sh. Rakesh Bihari, Page 48 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 49 Principal Secretary cumDivisional Commissioner (Revenue) and he is not covered under the term "District Magistrate". It is argued that this terms is not defined under Explosive Substance Act or even the rule. However, this term does stand defined in Section 4 (c) of Explosive Act'1884, a statute which was supplemented by the Explosive Substances Act'1908.
121.Under Section 4 (c) Explosive Act'1884 - the designations which are included in the term "District Magistrate" are Commissioner of Police, Dy. Commissioner of Police and Addl. District Magistrate. As such in the absence of being conferred the designated District Magistrate or Addl. District Magistrate, the Principal Secretary cum Divisional Commissioner (Revenue) could not have suo motu assign upon himself the designation of "District Magistrate" in the absence of any Gazette Notification in this regard.
122.Also there is nothing to show that either of the member of the raiding party offered self search before searching the accused. It is a rule of prudence and fair play that before any search of any suspect is made, the officer shall offer his personal search.
123.Accused has also been charged with commission of offence punishable U/s 18 UAP Act qua conspiracy to commit terrorist act apart from Section 120B IPC but even though around 5 years have passed, no person other than the accused has either been arrested or chargesheeted. It goes without saying that in order to show a conspiracy, there has to be atleast two persons who can be said to have conspired with each other.
Page 49 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 50 As per definition of Criminal Conspiracy U/s 120A IPC. Even Halsbury's Law of th England, 4 Edition Vol.II Page 58 reads , " Conspiracy consists in the agreement of two or more persons to do an unlawful act , or to do a lawful act by unlawful means."
124. Such has been the poor investigation that even though names of Abu Musab , Abu Hamja and Abu Al Kama are found mentioned in the charge sheet and there is an averement to the effect that investigation is kept pending and supplementary chargesheet qua them would be filed under Section 173 (8) Cr.P.C. , absolutely no attempt whatsoever was ever made either during initial investigation or thereafter to try and trace either of them. No serious attempt was made to arrest either of them by issuance of repeat coercive processes from any Magisterial Court during the last 5 years. All this goes on to show that these names were added in the investigation only to give colour to this case.
125.The above detailed discussion categorically shows that something is very seriously wrong in the manner in which the investigation is carried out by coveted Spl. Cell of Delhi Police in serious cases pertaining to Anti Terror Laws namely Unlawful Activities (Prevention) Act'1967 and Explosive Substances Act'1908. Plain reading of this chargesheet and evidence produced during trial leaves a lot to be desired in the seriousness and fineness of the investigational skills and tools. It is inappropriate that Page 50 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 51 such like cases are shown to be cracked primarily on the basis of legally inadmissible disclosure statement of accused followed by some spot recoveries on secret informations. Despite availability of latest scientific, technological and tele communicational tools , neither of them was found to have been pressed into service by the Cell in order to unearth any claimed larger conspiracy of terror activities. It is distressing and satirical to observe that cases under Explosive Substances Act are shown to have been worked out on the quality of evidence which is akin to evidence collected by Local Police Station in a petty Excise Act matter or any simple Arms Act case involving a button actuated knife. As mentioned supra, Hon'ble Supreme Court in case titled Mousam Singha Roy has observed that quality and fineness of the evidence collected during investigation should be commencerate to the seriousness of the offence . Graver the offence , higher shall be degree of assurance required to convict a person. In the matter in hand Delhi Police has grossly fallen short of providing such degree of assurance which could entitle them to seek conviction of accused Mukhtar.
126.From the very inception uptill filing of the chargesheet, the entire prosecution case is infested with so serious doubts and improbabilities that the whole case hangs on the hinges on the brink of being a case of planted recovery on the evidently innocent Mukhtar. Upon having a macro view of the entire case the plea of accused Mukhtar that he was detained by Spl. Cell on 7.6.07 noon time itself appears to be correct moreso, Page 51 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 52 when this also goes well with the case of the prosecution that after more than a week of consistent shadowing of the accused from 30.5.07 onwards , he suddenly went missing on early morning of 8.6.07. It is a settled legal proposition that whenever prosecution comes to the Court with a doubtful story , the benefit shall necessarily go to the accused.
127.In case titled Partap Vs. State, AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that :
''The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.''
128.In case titled Sohan Vs. State of Haryana , (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
''An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words , the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence. In this case, if only the Sessions Judge had reminded himself of the above mentioned basic or fundamental principles of criminal jurisprudence, direction of his approach and course of his appreciation of evidence would have been different and thereby perversity in appreciation of evidence could have been avoided.''
129.In case titled Sharad Birdhichand Sarda Vs. State, AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that :
Page 52 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012 53 "Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by evidence."
130.In case titled Manzoor Vs. State of U.P. ,(1982) 2 SCC 72 while dealing with the acquittal of accused in benefit of doubts it has been observed by Hon'ble Supreme Court that :
"Prosecution failing to prove the guilt of accused satisfactorily beyond all reasonable doubtHence, the accused must be acquitted."
131.In view of the above discussion, case laws , I have no hesitation to conclude that prosecution has failed miserably to bring home the guilt of the accused. As such accused Mohd. Mukhtar Ahmad Khan stands acquitted of charges punishable U/s 18/20/23 Unlawful Activities (Prevention) Act r/w 120B IPC and Section 4 & 5 of Explosive Substances Act . Accused be released from J/c forthwith if not required in any other case subject to furnishing bond of Rs.25000/ with one surety of like amount which shall be deemed canceled after expiry of period of six months U/s 437 A Cr.P.C. ANNOUNCED AND DICTATED IN OPEN COURT ON : 21.4.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 53 / 53 of Judgment State Vs. Mohd. Mukhtar dt 21.4.2012