Delhi District Court
State vs . Sajjad Hussain Sheikh on 5 February, 2013
State Vs. Sajjad Hussain Sheikh
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 09 of 2011
ID No: 02401R0602732010
FIR No.: 98/2005
PS. : Special Cell
U/S : 121/121A/122/123/120B IPC
read with Section 40 of
Unlawful Activities
(Prevention) Act.
STATE
VERSUS
Sajjad Hussain Sheikh
S/o Sh. Gulam Nabi Sheikh
R/o M-33, Bilal Colony, Soura,
Srinagar, Jammu & Kashmir.
.........Accused
Date of Institution : 06.08.2010
Date of Committal to Sessions Court : 15.04.2010
Date of judgment reserved on : 23.01.2013
Date of pronouncement of judgment : 05.02.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Sh. M.M.Khan, Advocate, counsel for the accused
SC No. 09/11 Page no. 1 of 30
State Vs. Sajjad Hussain Sheikh
JUDGMENT:
1. Briefly stated facts of prosecution case are that on June 15, 2005, accused Mohd. Amin Khan visited Import Shed, Air Cargo, New Delhi in order to get cleared a consignment, which was sent by Sajjad Sheikh from Jeddah. The said consignment was sent through Cargo of Saudi Airlines flight on June 8, 2005. On examination, it was found that the said consignment was packed in a big wooden package containing two carpets which were claimed by Mohd. Amin Khan as personal effects. However, on suspicion, consignment was thoroughly examined and on examination it was found that small wooden box was concealed at the bottom of wooden pallet and covered with wire and three pillows on its top. On opening of the said small wooden box, 40 wireless handsets, one satellite phone, 60 antennas of various frequencies, one belt with an electric device filled inside 6 sets of headphones were recovered. The said consignment was to be delivered finally at Srinagar. It was alleged that since the Cargo was of sensitive nature and inimical to national security, Sh. Lalit Prasad, Joint Commissioner (Customs) Import Shed, Air Cargo Unit, IGI Airport handed over a complaint to the police. It was alleged that on enquiry, it was revealed that the consignment was sent for the purpose of terrorism in India and accordingly a case was registered.
(i) It was alleged that during investigation, accused Mohd. Amin Khan and Obaid-Ul-Ahad were arrested and during interrogation, they disclosed that they were members of banned terrorist outfit "Al-Badr". It was further revealed that said consignment was sent by present accused at the direction of Tipu, Area Commander of "Al-Badr" and after clearance, the SC No. 09/11 Page no. 2 of 30 State Vs. Sajjad Hussain Sheikh consignment was to be sent to Sri Nagar by accused Obaid-Ul-Ahad. It was further revealed that delivery of the said consignment was to be taken by Bilal.
(ii) It was further alleged that during investigation, one DVD player was recovered at the instance of said Mohd. Amin Khan from his residence and during interrogation he disclosed that earlier also Sajjad Sheikh had brought wireless set and satellite phones after concealing the same in the said DVD player. He further disclosed that at that time, accused Sajjad Sheikh had stayed at Hotel Park, Connaught Place, New Delhi, which was corroborated by the record of the hotel. It was further alleged that accused Mohd. Obaid had disclosed about the supply of consignment to the terrorist outfit "Al-Badr" on two earlier occasions.
(iii) It was alleged that the charge-sheet had been filed against accused Mohd. Amin Khan and Obaid-ul-Ahad and accused Mohd. Amin Khan had been convicted whereas accused Obaid-ul-Ahad was acquitted vide judgment dated February 18, 2010. Since, accused Sajjad Hussain Sheikh could not be arrested at that time, his LOC was got opened and on May 8, 2010 he was deported from Saudi Arabia, consequently, he was arrested in this case. It was alleged that after interrogation, accused Sajjad Sheikh had made a confessional statement.
(iv) It was alleged that on May 21, 2010, permission was obtained from the Court to take his voice sample. Thereafter, his voice sample was recorded on May 25, 2010 at FSL, Rohini. Exhibits were sent to analyse his voice sample with the recorded conversation and result was obtained which confirmed that the recorded conversation was of accused.
Thereafter, sanction was obtained under Section 45 of Unlawful Activities SC No. 09/11 Page no. 3 of 30 State Vs. Sajjad Hussain Sheikh (Prevention) Act (hereinafter referred to as 'Act') as well as under Section 196 Cr.P.C from the competent authority. It was alleged that accused is a member of terrorist organization 'Al-Badr' and he entered into a criminal conspiracy, to collect/deliver large quantity of restricted satellite phones, solar charger and wireless sets etc., which were meant to be and used by terrorists for communication and to commit terrorist activities against India.
2. After completing investigation, challan was filed against the accused for the offence punishable under Section 40 of the Act and under Sections 121/121A/122/123/120-B IPC. It was recited that co-accused Bilal was absconding and further investigation was going on and supplementary charge-sheet would be filed later on. Thereafter, investigating officer filed a supplementary charge-sheet wherein he filed the FSL report of hand writing expert. It was further recited that original Air way bill could not be obtained.
3. After complying with the provisions of Section 207 Cr. P.C., case was committed to the Court of Sessions on April 8, 2011. Thereafter, the case was assigned to this Court on April 15, 2011. Accordingly, case was registered as Sessions case No. 09 of 2011.
4. Vide order dated September 9, 2011, a charge for the offence punishable under Section 40 of the Act was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused, prosecution has examined as many as following 22 witnesses:-
PW1 SI Krishan Chander, duty officer, proved the FIR PW2 Sh. Narender Kumar Bagga, landlord of the co-accused SC No. 09/11 Page no. 4 of 30 State Vs. Sajjad Hussain Sheikh Mohd. Amin Khan PW3 Insp. Naresh Kumar, material witness of recovery PW4 Mr. Lalit Prasad, the then Joint Commissioner of Import Shed, proved his complaint PW5 Sh. Anurag Tiwari, panchnama witness PW6 Sh. Vijay Kumar, material witness PW7 Sh. Ramphal Singh, panchnama witness PW8 Dr. C.P.Singh, proved the FSL report of voice sample PW9 Mohd. Ali Ashraf, proved sanction under Section 45 of the Act and under Section 196 Cr.P.C PW10 Sh. Amar Dass, formal witness PW11 SI Pardeep, formal witness PW12 Sh. Narender Kumar, formal witness PW13 ASI M. Baxla, MHC(M) PW14 Sh. Ajeet Singh, Nodal officer of Idea Cellular Ltd.
PW15 Insp. Lalit Mohan, member of investigating team
PW16 Const. Ravi Dutt, formal witness
PW17 Insp. Umesh Barthwal, member of investigating team
PW18 SI Ranjit Kumar, formal witness
PW19 Sh. S. S. Kataria, Head Warden of Jail no. 1, Tihar Jail
PW20 Sh. Jeet Singh, Senior Scientific officer, proved the
handwriting report
PW21 Sh. Bhisham Singh, Addl. DCP, Crime
PW22 Sh. B. K. Tiwari, Deputy Secretary (Home), Govt. of
NCT, Delhi
6. Thereafter, accused was examined under Section 313 Cr.P.C wherein he denied all the evidence led by the prosecution, however he admitted that he was deported from Saudi Arabia but took the plea that he SC No. 09/11 Page no. 5 of 30 State Vs. Sajjad Hussain Sheikh was deported because his pass-port was not renewed by Indian Embassy functioning in Saudi Arabia as one complaint was sent to the Embassy by Special Cell of Delhi Police. He submitted that he has been falsely implicated in this case. However, he refused to lead any evidence in his defence.
9. I have heard rival submissions made by counsel for both the parties and perused the record carefully.
Contentions relating to delay in lodging the FIR:
10. Learned counsel appearing for the accused strenuously contended that there is not only delay in lodging the FIR but also there is inordinate delay in sending the copy of FIR to the concerned Metropolitan Magistrate. It was contended that the alleged recovery was affected on June 15, 2005 whereas the FIR was lodged on June 17, 2005 and the copy of FIR was sent to the concerned Metropolitan Magistrate only on June 28, 2005. It was submitted that since there is no explanation for the said inordinate delay, the possibility of fabrication in the FIR cannot be ruled out.
11. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that there was no dishonest intention in the delay in sending the copy of FIR to the learned Additional Chief Metropolitan Magistrate, thus no adverse inference should be drawn against the prosecution. It was further submitted that there was no delay in lodging the FIR as the FIR was lodged on receipt of the complaint from the Custom Officer as the recovery was affected by the Custom officials.
12. First question emerges as to whether there was any delay in SC No. 09/11 Page no. 6 of 30 State Vs. Sajjad Hussain Sheikh lodging the FIR or not?
13. In this regard the testimony of PW3, PW4, PW6 and PW15 are relevant. PW15 is the police official whereas PW3 and PW4 belong to Custom Department and PW6 is a public witness. PW3 and PW4 in their deposition categorically deposed that on June 15, 2005 when they found contraband articles in the alleged consignment, intimation was given to the Special Cell and accordingly a police team under the leadership of ACP Rajbir reached there. PW4 in his examination-in-chief categorically deposed that the police team had interrogated Mohd. Amin Khan and took him with them for further interrogation. PW6 also deposed that the police of Special Cell had returned his mobile phone on June 16, 2005. PW15 in his examination-in-chief deposed that when they reached the Import Shed, Cargo, Mohd. Amin Khan and Vijay met there and they were handed over to the police team for further interrogation, consequently they brought them to the Special Cell. Thus, it becomes clear that police had not only came to know about the consignment in question on June 15, 2005 itself but police team had also taken Mohd. Amin Khan and Vijay to the Special Cell for further interrogation. But despite all these, no FIR was registered on June 15, 2005. FIR was registered only on June 17, 2005 when police had received a formal complaint from PW4. It is not clear when the ACP Rajbir had himself inspected the consignment along with his team why the FIR was not recorded immediately. There is no reasonable explanation from the prosecution in this regard. Though learned Additional Public Prosecutor stressed to make up the said lacuna by arguing that the FIR was registered when the police had received the formal complaint, but the said explanation is not convincing. Once it came into the knowledge of the responsible police officer that some contraband articles were sent to India in a consignment and the same could be utilized for the purpose of terrorism, it SC No. 09/11 Page no. 7 of 30 State Vs. Sajjad Hussain Sheikh was the paramount duty of the police officer to register the formal FIR immediately but he preferred to wait for two days. There is no requirement in law to have a formal complaint to register an FIR. Moreover, in the instant case, PW4 had made a formal complaint to the Joint Commissioner of Police by intimating about the recovery of contraband items on phone and pursuant to the said complaint, a police team under the supervision of ACP Rajbir reached the spot. Thus, it can not be said that intimation of commission of cognizable offence was given to the police. Once the furnished information discloses the commission of cognizable offence, police officer is bound to register an FIR. Thus, to my mind there is delay in lodging the FIR but the entire prosecution case can not be discarded on the said ground alone.
14. Second question comes forth as to whether there is any delay in sending the copy of FIR to the concerned Court of learned Additional Chief Metropolitan Magistrate or not?
15. In this regard the testimony of PW1 is relevant. PW1 SI Krishan Chander was duty officer on June 17, 2005 and he had registered the FIR on receipt of a rukka from ACP Rajbir Singh. He deposed that he had lodged an FIR and same is exhibited as Ex. PW1/A. He further deposed that he had made endorsement on the rukka which is exhibited as Ex.
PW1/B. In his entire deposition he did not depose that he had sent the copy of FIR to the senior police officers as well as to the concerned Metropolitan Magistrate. No other witness has deposed that the copy of FIR was ever sent to the concerned Illaqua Magistrate. Perusal of the FIR Ex. PW1/A reveals that the learned Additional Chief Metropolitan Magistrate had made an endorsement to the effect that he had received the copy of FIR on June 28, 2005. During the trial, prosecution has failed to adduce any SC No. 09/11 Page no. 8 of 30 State Vs. Sajjad Hussain Sheikh evidence to establish that the copy of FIR was sent prior to June 28, 2005. In the absence of any contrary evidence on record, there is no reason to disbelieve the endorsement made on Ex. PW1/A. In other words, the copy of FIR was sent to the concerned Court of learned Additional Chief Metropolitan Magistrate on June 28, 2005 whereas it was registered on June 17, 2005. Thus, there is not only an inordinate delay of 11 days in sending the copy of FIR but the said delay remained unexplained during the trial. The impact of delay in sending the copy of FIR was elaborately discussed by the Apex Court in Bijoy Singh v. State of Bihar, AIR 2002 SC 1949 wherein it was held:-
Para 7. "Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157, Cr. P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it."
(emphasis supplied)
16. Since in the instant case prosecution has failed to explain the SC No. 09/11 Page no. 9 of 30 State Vs. Sajjad Hussain Sheikh delay in sending the copy of FIR to the concerned learned Additional Chief Metropolitan Magistrate, this Court is required to examine the prosecution version minutely to ensure that accused has not been falsely implicated in this case.
Contentions relating to sanctions:
17. Learned counsel appearing for the accused assailed the prosecution case by arguing sagaciously that the prosecution has launched prosecution against the accused on the basis of defective sanction.
Though in order to remove the said defect, prosecution has filed a fresh sanction during the trial, yet the same can not rectify the incurable defect in the prosecution. It was submitted that since no Court had not taken cognizance on the basis of fresh sanction, same is not helpful to the prosecution to rectify the inherent defect in the prosecution case.
18. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that since prosecution has filed fresh sanction under Section 45 of Unlawful Activities (Prevention) Act, prosecution has rectified the defect in the previous sanction and there is no reason to discard the fresh sanction.
19. From the submissions of counsel for both the parties, question comes forth as to whether there was any defect in the original sanction. If yes, whether the defect was inherent? If the answer is in affirmative, whether the fresh sanction can rectify the inherent defect?
20. Before dealing with the contentions raised by learned counsel for the parties, I deem it appropriate to have a look over the relevant SC No. 09/11 Page no. 10 of 30 State Vs. Sajjad Hussain Sheikh provisions of law. Section 45 of the UAPA runs as under:
45. Cognizance of offences.
(1) No court shall take cognizance of any offence:-
(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf;
(ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
(2)Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.
(emphasis supplied)
21. Careful perusal of Section 45 reveals that sub-section (1) deals with the authority who can accord sanction for the offences committed under the Act whereas sub-section (2) deals with the procedure to be followed by the authority at the time of granting sanction. It is limpid from Section 45 (1) if the committed offence falls under Chapter III of UAPA, Court shall not take cognizance of the offence unless previous sanction is accorded either by the Central Government or by any other officer authorised by the Central Government in this behalf. And if the committed offence falls under the Chapter of IV and VI, Court shall not take cognizance of the offence unless previous sanction is granted by the Central Government or the State Government as the case may be. But if SC No. 09/11 Page no. 11 of 30 State Vs. Sajjad Hussain Sheikh the committed offence is against the Government of a foreign country, Court shall not take cognizance without the previous sanction of the Central Government. In the instant case, offences punishable under Section 40 of UAPA falls under Chapter VI, thus sanction of Central Government or State Government as the case may be is required to prosecute the accused. In the instant case, being the Administrator of Delhi, Lt. Governor of NCT, Delhi had accorded the initial sanction to prosecute the accused. Thus, prosecution has satisfied the condition as recited under sub-section (1) of S. 45 of UAPA.
22. Sub-section (2) to 45 of the Act deals with the procedure how the Central Government or the State Government or the authorised officer of Central Government as the case may be shall accord sanction under sub-section (1). Sub-section (2) defines the procedure as under:
(i) That sanction shall be granted within the prescribed time;
(ii) That sanction shall be granted after considering the report of such authority, which shall be appointed by the Central Government or the State Government as the case may be;
(iii) That such authority shall make an independent review of the evidence gathered in the course of investigation;
(iv) That such authority shall make its recommendation within the prescribed time to the Central Government or the State Government as the case may;
23. Now, it becomes abundantly clear that firstly Central Government or the State Government, as the case may be, shall appoint an SC No. 09/11 Page no. 12 of 30 State Vs. Sajjad Hussain Sheikh authority, which shall make an independent review of the evidences collected by the investigating agency in the course of investigation and thereafter such authority shall make its recommendation within the prescribed time to the Central Government or the State Government as the case may be. After considering the said report sanction shall be accorded by Central Government or its authorised officer or State Government as the case may be within the prescribed period.
24. Under Section 52 (2) (ee) Central Government is empowered to make rule in respect of the time within which sanction for prosecution and recommendation to the Central Government shall be given under sub- section (2) of section 45. In exercise of the power conferred under sub- section (2) of Section 52, Central Government has framed 'The Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008. Rule 3 & 4 are relevant and same are reproduced as under:
3. Time limit for making recommendation by the Authority:- The Authority shall under sub-section (2) of section 45 of the Act make its report containing the recommendation to the Central Government or the case may be, the State Government within seven working days of the receipt of the evidence gathered by the investigating officer under the Code.
4. Time limit for sanction of prosecution:- The Central Government or, as the case may be, the State Government shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority.
(emphasis supplied)
25. In the instant case, learned counsel appearing for accused contended that competent authority had not followed the procedure as SC No. 09/11 Page no. 13 of 30 State Vs. Sajjad Hussain Sheikh mentioned under sub-section (2) at the time of according sanction, thus sanction was defective, which vitiates the trial. Thus, conundrum question arises as to whether the competent authority i.e. Lt. Governor had followed the procedure at the time of according the first sanction or not?
26. Indisputably, initially the sanction was accorded by the Ld. Governor of NCT of Delhi and the same was communicated by PW9 on August 5, 2010 and the sanction is exhibited as Ex. PW9/A. PW9 Mohd. Ali Ashraf, the then Joint Secretary (Home), Government of NCT, Delhi appeared in the witness box and in his cross-examination, he deposed that the recommendation of the authority appointed by Central Government was not placed before Lt. Governor. He further deposd that the authority had not independently reviewed the evidences collected by the investigating agency. Perusal of the snction order Ex. PW9/A establishes that the sanction order was granted only on the basis of draft charge-sheet, allegations made in FIR and other material and evidence placed on record. There is no reference of any authority appointed by the Central Government. Similarly, there is no reference that the said authority had independently reviewed the evidences collected by the investigating agency. Similarly, there is no reference that such authority had made any recommendation to the Central Government or the State Government to grant sanction. In other words, there is no scintilla of evidence to show that the evidences collected by the investigating officer were independently reviewed by any authority appointed by the Central Government or State Government or that after review of such evidences, such authority had ever made any recommendation to the Central Government or the State Government as the case may be. It is pertinent to mention here that this Court may not have jurisdiction to examine whether the recommendation of competent authority was sufficient to accord sanction or not. But it is the SC No. 09/11 Page no. 14 of 30 State Vs. Sajjad Hussain Sheikh bounden duty of this Court to examine as to whether any authority was appointed by the Government in terms of Section 45 (2) of UAPA and; to analyze as to whether such authority had reviewed the evidence collected by the investigating officer during investigation and; to examine whether such authority had made any recommendation to the Government to accord sanction against the accused and; also that the recommendation was made within the prescribed time and; that sanction was granted within prescribed time or not. But there is no infinitesimal evidence in this regard.
27. Needless to say, one of the main objects of imposing condition of independent review by an authority appointed by the Central Government or the State Government as the case may be, is to prevent the misuse of the stringent provisions of UAPA by the law enforcing agencies. Further, when legislature in its wisdom has prescribed a specific procedure to accord sanction, it is the pious duty of sanctioning authority to follow that procedure. But unfortunately, there is no iota of material on record to show prima-facie that the recommendation of any authority who independently reviewed the evidences collected by the investigating authority was ever brought in the notice of Lt. Governor at the time of obtaining sanction under sub-section (1) of Section 45 of the UAPA. In other words, the competent authority, Lt. Governor of NCT of Delhi in the present case was deprived of the relevant material i.e. recommendation of competent authority that was necessary to consider as to whether sanction should or should not be granted.
28. In view of the above discussion, I am of the considered opinion that there was inherent defect in the sanction order dated August 5, 2010 as the same was not in consonance with the mandatory provisions of SC No. 09/11 Page no. 15 of 30 State Vs. Sajjad Hussain Sheikh Section 45 (2) of UAPA, thus sanction was not valid.
29. Now coming to the next question as to whether the defect is incurable and whether fresh sanction dated October 30, 2012 (Ex. PW22/A) can remove the said defect or not?
30. By filing the fresh sanction in terms of Section 45(2) of UAPA, prosecution has admitted that the previous sanction was not in accordance with law. As already discussed that the previous sanction was not in accordance with mandatory provisions of Section 45(2) of UAPA, thus the same was not legal and valid.
31. Section 45 of the UAPA prohibits the Court to take cognizance of the offence unless the competent authority i.e Central Government, its authorised representative or State government, as the case may be, accorded sanction in accordance with the provisions of Section 45 of the Act. Thus, real question is as to whether the cognizance order dated August 7, 2010 was in accordance with the provisions of Section 45 (1) of the UAPA or not?
32. As already discussed that the previous sanction qua accused was not in accordance with the mandatory provisions of Section 45 (2) of UAPA, but the Court had taken the cognizance vide order dated August 7, 2010 believing that the sanction was in accordance with the law. Since, there was no valid sanction in terms of mandate of the law, Court was not competent to take cognizance qua the offence punishable under UAPA. Thus, the cognizance order dated August 7, 2010 was bad in law as it was in violation of the mandatory provisions of Section 45 (1) of UAPA.
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State Vs. Sajjad Hussain Sheikh
33. Though prosecution has now filed fresh sanction dated
October 30, 2012 (Ex. PW22/A) in terms of the mandatory provisions of Section 45 (2) of UAPA, yet no cognizance has been taken in the present case on the basis of said sanction order. Since, the said sanction was not in existence at the time of taking cognizance on August 7, 2010, question of considering the same by the Court at the time of taking cognizance of the offence does not arise. Mere fact that prosecution has filed fresh sanction order at this belated stage is not sufficient to make the cognizance order valid. Because mandate of law is that Court shall not take cognizance unless there is previous sanction in accordance with the provisions of Section 45(2) of UAPA and in the instant case there was no valid sanction when the cognizance was taken.
34. In case Rangku Dutta v. State of Assam, 2011 (3) JCC 1650 impugned conviction and sentence was challenged on the ground that the FIR was registered in violation of mandatory provisions of Section 20(A)(1) of TADA, which reads as under:
20-A Cognizance of offence - (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.
Counsel appearing for the State took the plea that since the investigation was conducted by the DSP, therefore the requirement of section 20(A)(1) has been complied with. However, Apex Court rejected the said plea. Observations made in para 21, 23,24 and 29 are relevant, hence reproduced as under:
SC No. 09/11 Page no. 17 of 30 State Vs. Sajjad Hussain Sheikh Para 21. It is obvious that Section 20(A)(1) is a mandatory requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, it uses the expression "No" after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command.
Para 23. So there can be no doubt about the mandatory nature of the requirement of this Section. Apart from that, since the said section has been amended in order to prevent the abuse of the provisions of TADA, this Court while examining the question of complying with the said provision must examine it strictly.
Para 24. Going by the aforesaid principles, this Court finds that no information about the commission of an offence under the said Act can be recorded by the Police without the prior approval of the District Superintendent of Police. Therefore, the requirement of prior approval must be satisfied at the time of recording the information. If a subsequent investigation is carried on without a proper recording of the information by the DSP in terms of Section 20(A)(1), that does not cure the inherent defect of recording the information without the prior approval of the District Superintendent of Police. Whether the Deputy Superintendent of Police is a District Superintendent of Police or not is a different question which we need not decide in this case. But one thing is clear that the requirement of approval must be made at the initial stage of recording the information. If there is absence of approval at the stage of recording the information, the same cannot be cured by subsequent carrying on of the investigation by the DSP. Reference in this connection is made to the principles laid down by Lord Denning speaking for the Judicial Committee of Privy Council in Benjamin Leonard MacFoy Versus United Africa Co. Ltd. [1961(3) Weekly Law Reports 1405]. Lord Denning, speaking for the unanimous Bench, pointed out the effect of an act which is void so succintly that I better quote him:
"If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse."
SC No. 09/11 Page no. 18 of 30 State Vs. Sajjad Hussain Sheikh Para 29. Therefore, the entire proceeding right from the registering of the FIR, filing of the charge-sheet and the subsequent trial is vitiated by a legal infirmity and there is a total miscarriage of justice in holding the trial, ignoring the vital requirement of law. We have, therefore, no hesitation in setting aside the impugned judgment of the Designated Court."
(emphasis supplied)
34. From the above judgment, it becomes crystal clear that some defects are incurable and if any proceeding is initiated on such incurable defects, it is liable to be collapsed. In the instant case prosecution had built up its case on the foundation of invalid sanction (Ex.PW9/A), thus the proceedings initiated on the said sanction are bound to be collapsed. The said inherent and incurable defect can not be rectified by just simply filing a fresh sanction at the belated stage of the trial.
35. Pondering over the ongoing discussion, I am of the considered opinion that there was no valid sanction at the time of taking cognizance for the offence punishable under UAPA and the said incurable defect can not be rectified by filing the subsequent sanction.
Contentions relating to the compliance of Section 46 of UAPA:
36. Learned counsel appearing for the accused perspicaciously contended that the entire prosecution case is based on the alleged intercepted conversation that had taken place between accused Sajjad Hussain Sheikh and Mohd. Amin Khan. The transcription of said conversation is on record and same is exhibited as Ex. PW17/H. It was submitted that no reliance can be placed on the alleged conversation as the SC No. 09/11 Page no. 19 of 30 State Vs. Sajjad Hussain Sheikh same was unauthorisedly intercepted without any order from any competent authority. It was submitted that since the said conversation was intercepted without any order from any competent authority, same cannot be read in evidence in terms of Section 46 of the Act.
37. Per contra, learned Additional Public Prosecutor for State fairly conceded that there is no order of interception on the file, yet he contended that once prosecution has proved that the said conversation was between accused and Mohd. Amin Khan, Court can safely rely upon the same.
38. Though Additional Public Prosecutor conceded that there is no order of interception on the record, yet this fact is further proved from the deposition of PW15 Insp. Lalit Mohan who in his cross-examination deposed that he is not aware whether any permission was taken from any authority at the time of intercepting the calls of accused Sajjad Sheikh or not. Though prosecution has examined as many as 22 witnesses, yet none of them has deposed that any order was obtained from any authority before intercepting the calls of accused Sajjad Hussain Sheikh. Now question arises as to whether any reliance can be placed on such type of interception calls or not?
39. In this regard Section 46 of the Act is relevant and the same is reproduced as under:
[46. Admissibility of evidence collected through the interception of communications- Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or any other law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under the provisions of the Indian Telegraph Act, 1885 (13 of 1885) or the SC No. 09/11 Page no. 20 of 30 State Vs. Sajjad Hussain Sheikh Information Technology Act, 2000 (21 of 2000) or any other law for the time being in force, shall be admissible as evidence against the accused in the court during the trial of a case:
Provided that the contents of any wire, electronic or oral communication intercepted or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court unless each accused has been furnished with a copy of the order of the competent authority under the aforesaid law, under which the interception was directed, not less than ten days before trial, hearing or proceeding:
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)
40. It is evident from Section 46 of the Act that the contents of any such communication shall not be read in evidence in any Court unless a copy of the order of competent authority under which the interception was directed is furnished to the accused. Thus, the requirement is dual before placing any reliance on the contents of intercepted communication; firstly that there should be an order of interception from competent authority and secondly that the copy of such order should be supplied to the accused. It is further evident that the copy of said order should be supplied to the accused at least before 10 days of the trial or hearing or proceeding as the case may be. But in the instant case prosecution has even failed to establish that the alleged interception was done under any valid order from any authority. Since the alleged interception was not done in accordance with Section 46 of the Act, I am of the opinion that no reliance can be placed on the alleged interception.
SC No. 09/11 Page no. 21 of 30 State Vs. Sajjad Hussain Sheikh Contentions relating to the translation of the alleged intercepted conversation:
41. Learned counsel dilated his contention by arguing sagaciously that no reliance can be placed on the alleged conversation as prosecution case is that the said conversation was in Kashmiri and it was translated by one Sheikh Rashid and the said translation was seized by the police vide memo Ex. PW17/H. It was submitted that during the trial, prosecution has failed to bring Sheikh Rashid in the witness box, thus there is no evidence on record to establish that the alleged translation is true and correct. It was further urged that though said Sheikh Rashid was examined as a witness during the trial of co-accused as PW6 on December 5, 2007 but at that time he turned hostile completely and denied the suggestion that he had ever translated the conversation in the office of Special Cell on June 16, 2005.
42. Learned Additional Public Prosecutor submitted that the translation was done by Sheikh Rashid in the presence of SI Umesh Bhartwal and ACP Rajbir, thus mere fact that prosecution failed to bring Sheikh Rashid in the witness box is not sufficient to discard the prosecution case.
43. In this regard the testimony of PW17 inspector Umesh Barthwal, seizure memo Ex. PW17/H and the statement of PW6 Sheikh Rashid recorded in SC No. 261/05 at the time of trial of co-accused are relevant.
44. PW17 in his examination-in-chief categorically deposed that during investigation Sheikh Rashid had translated the intercepted conversation of accused Mohd. Amin Khan and Obaid-ul-Ahad with SC No. 09/11 Page no. 22 of 30 State Vs. Sajjad Hussain Sheikh accused Sajjad Hussain Sheikh. He further deposed that the conversation was in Hindi and Kashmiri. Though in the instant case, prosecution has failed to bring Sheikh Rashid in the witness box, yet during the trial of co- accused, he was examined as PW6 on December 5, 2007 and at that time he turned hostile completely by deposing that he had never visited the office of Special Cell on June 16, 2005 or that he had translated the interecpted conversation of above accused persons from Kashmiri to Hindi. No doubt, memo Ex. PW17/H shows that the said translation was seized in the presence of SI Umesh Barthwal but there is no evidence to show that the said translation was done in the presence of SI Barthwal. Mere fact that SI Barthwal is a witness of the seizure memo is not suffice to establish that the said translation was done in his presence. Moreover, it is admitted case of prosecution that SI Barthwal did not know Kashmiri, thus he cannot otherwise prove the said translation which has allegedly been done by Sheikh Rashid. Further PW17 in his deposition nowhere testified the genuineness of the said translation. In other words, there is no whit of evidence on record to establish that the alleged translation is the true and correct of the alleged intercepted conversation. This is another fatal blow to the prosecution case.
Contentions relating to the deposition of PW8 Dr. C.P. Singh:
45. Learned defence counsel further expatiated his contention by arguing that no reliance can be placed on the alleged intercepted conversation because prosecution case is the alleged conversation was in Hindi and Kashmiri whereas PW8 Dr. C. P. Singh had selected English words to compare the intercepted conversation with the voice sample. It was submitted that if the intercepted conversation was in Hindi and Kashmiri where was the occasion for PW8 to select English words for the SC No. 09/11 Page no. 23 of 30 State Vs. Sajjad Hussain Sheikh purpose of comparison. It was further submitted that PW8 in his deposition admitted that there is possibility of editing in any recording, thus no reliance can be placed on the testimony of PW8.
46. Per contra, learned Additional Public Prosecutor controverted the said contentions by arguing that mere fact he had picked up certain English words for comparison is not sufficient to discard the testimony of PW8.
47. PW8 Dr. C. P. Singh in his cross-examination admitted that the opinion can be given only if the questioned voice recording and specimen voice sample are in the same language. He further deposed that he did not know in which language the specimen voice of accused was recorded. But in his next breath, he deposed that sufficient clue words were available from questioned and specimen voice. He further deposed that the questioned conversation was partly in Hindi and partly in English. Similarly, the specimen voice sample was also partly in Hindi and partly in English. But he swiftly added that there were certain English words in both the sample. Thus, as per the testimony of PW8 he had compared the voice sample of accused with some words of Hindi and some words of English whereas prosecution case is that the intercepted conversation was in Kashmiri and Hindi. If it was so, it is beyond imagination how PW8 had found English words for the purpose of comparison. However, from his testimony it is clear that he did not select Kasmiri words for the purpose of comparison. When the attention of PW8 was drawn towards the seizure memo Ex. PW8/D2 to the effect that the alleged conversation was in Hindi and Kashmiri, he swiftly added that his job was to compare the voice and not to identify the language. No doubt his job was not to identify the language, but once he deposed that he had selected Hindi and English SC No. 09/11 Page no. 24 of 30 State Vs. Sajjad Hussain Sheikh words for the purpose of comparison, it shows that he had selected the words after identifying the language, thus he cannot be allowed to take such type of plea. He further deposed that he had selected 21 clue words each from questioned and specimen voice and the said clue words were either in Hindi or in English. Thus, it becomes clear that there was no word of Kashmiri in the said 21 clue words which were selected for the purpose of comparison. In his cross-examination, he also deposed that there is possibility of editing in any recording, thus, the possibility of editing in the instant also case can not be ruled out.
48. In view of the above, I am of the opinion that it will not be safe to rely upon the report of PW8 Dr. C.P. Singh.
Contentions relating to report of handwriting expert:
49. Learned counsel submitted that though prosecution has also relied upon the report of handwriting expert, which is exhibited as PW20/A, yet the same is not helpful to the prosecution in any manner as the said report pertains to the signature of accused appearing on the invoice of hotel Park, which he had signed during his stay in New Delhi, thus not helpful to the prosecution to prove his culpability.
50. It is admitted case of the prosecution that accused had stayed at Park hotel in New Delhi during April 8, 2005 to April 10, 2005 and at that time accused had signed on the invoice of the hotel, which is exhibited as Ex. PW8/C (exhibited during the trial of co-accused). His signature is marked as Q1 and PW20 had compared the specimen signatures with Q1. Thus, at the most the report Ex. PW20/A may be helpful to the prosecution to establish that accused had stayed at the said hotel in New Delhi but Ex.
SC No. 09/11 Page no. 25 of 30 State Vs. Sajjad Hussain Sheikh PW20/A is not helpful to the prosecution case in any manner to prove that the alleged consignment was sent by accused Sajjad Hussain. Moreover, PW12 Narender Kumar, officer of Park Hotel appeared in the witness box and in his cross-examination he deposed that whenever any guest visit their hotel for stay, his luggage is scanned. He further deposed that whenever Sajjad Hussain Sheikh stayed in their hotel, he was not found carrying any arm, ammunition and contraband items and he was also not found carrying any wireless set etc. In view of the above, I am of the opinion that handwriting expert's report Ex. PW20/A is not helpful to the prosecution to prove the culpability of accused in any manner.
Contentions relating to the Airway Bill:
51. Learned counsel further contended that the entire prosecution case is based on the air way bill. But prosecution has failed to produce the original airway bill till date. Learned Additional Public Prosecutor countered the said contentions by arguing that since prosecution has filed the certified copy of airway bill, same can be read in evidence.
52. In this regard the testimony of PW20 and PW21 are relevant. PW21 in his cross examination admitted that the specimen handwriting of the accused was taken to tally his signature appearing on the airway bill and on the hotel bill. The alleged certified copy is Ex. PW3/F which is nothing but copy to copy, thus the said certified copy was not prepared on the basis of original airway bill. Moreover, PW20 had not given any opinion qua the signature of accused allegedly appearing on Ex. PW3/F. Thus, there is no infinitesimal of evidence to establish that Ex.PW3/F bears the signature of accused.
SC No. 09/11 Page no. 26 of 30 State Vs. Sajjad Hussain Sheikh Contentions relating to Panchnama witnesses:
53. Learned counsel contended that PW3 Naresh Kumar had made substantial improvement from his previous statement which was recorded during the trial of other co-accused as at that time he deposed that punch witnesses were not present when the consignment was detained on June 15, 2005 and further deposed that the consignment was not re-opened on June 17, 2005 when panchnama was prepared. However, in his deposition, he deposed that the consignment was seized in the presence of punch witnesses on June 15, 2005.
54. On the converse, learned Additional Public Prosecutor countered the said contentions by arguing that the consignment was seized in the presence of punch witnesses and there is no reason to disbelieve the testimony of witnesses.
55. Prosecution case is that the consignment was detained on June 15, 2005 vide detention receipt No. 061238 and the memo is marked Ex. PW3/A whereas panchnama was prepared on June 17, 2005 and same is exhibited as Ex. PW3/B. Prosecution case is that the consignment was seized in the presence of punch witnesses. PW5 is one of the punch witnesses, who in his cross examination deposed that when he signed the panchnama Ex. PW3/B, it was not re-opened. It means that he was not aware about the contents of the consignment whereas the prosecution case is that the contraband items were found from the consignment in his presence. PW7 Ram Phal is another panch witness. He in his cross- examination deposed that the consignment was re-opened on June 17, 2005 when panchnama was prepared. Thus, there is material contradiction between the testimony of PW5 and PW7 as PW5 deposed that the SC No. 09/11 Page no. 27 of 30 State Vs. Sajjad Hussain Sheikh consignment was not re-opened when panchnama was prepared whereas PW7 deposed that it was reopened. Though PW5 and PW7 tried to give impression that when consignment was checked on June 15, 2005, they were present there, but PW3 inspector Naresh Kumar in his deposition did not tell that he called them on June 15, 2005 at the time of checking the consignment.
56. Further, prosecution case is that the consignment was detained on June 15, 2005 but it was seized in the presence of panch witnesses on June 17, 2005 vide Ex. PW3/B. It means that prosecution case is that the contraband items were seized in the presence of panch witnesses. Indisputably, PW3 inspector Naresh Kumar had also appeared in the witness box on July 17, 2007 during trial of co-accused and his statement Ex. PW3/D1 was recorded at that time and this fact is admitted by the PW3 in his cross-examination. In his previous statement Ex. PW3/D1, inspector Naresh deposed that the consignment was not reopened when it was seized vide seizure memo Ex. PW3/B. It means that there was no occasion for the panch witnesses to see the alleged recovered contraband items. As already stated, PW3 in his deposition, no where deposed that he had called PW5 and PW7 on June 15, 2007 when the consignment was allegedly detained. In other words, prosecution has failed to establish beyond doubt that the alleged consignment was ever checked and seized in the presence of panch witnesses.
Contentions relating to PW6:
57. Learned Additional Public Prosecution vigorously contended that from the testimony of PW6 it is culled out that the said consignment was sent by the accused Sajjad Hussain. Per contra, learned defence counsel SC No. 09/11 Page no. 28 of 30 State Vs. Sajjad Hussain Sheikh opposed the said contention by arguing that PW6 in his testimony did not depose that the said consignment was sent by the accused, thus no adverse inference can be drawn against the accused.
58. In this regard the testimony of PW6 is relevant. PW6 in his deposition deposed that Mohd. Amin had given his mobile number to the accused, thus, accused Sajjad Hussain had made certain calls at his mobile. He further deposed that his mobile phone was kept by the police of Special Cell and it was returned to him only on June 16, 2005. In his testimony, he admitted that Sajjad Hussain had made a call to him and he was making inquiry about Mohd. Amin Khan and he informed him that he did not know about him. After attending the said call, he had received a call from inspector Negi of Special Cell, who made inquiry whether call was made by Sajjad Hussain or not and he told him about the said call. This shows that the mobile phone of PW6 was intercepted by the Special Cell. He further deposed that inspector Negi directed him to inform him as when he received a call from Sajjad Hussain. He further deposed that he had received another call from Sajjad Hussain on June 17, 2005 and informed the inspector Negi. But he no where deposed that Sajjad Hussain had made any inquiry about the said consignment or the accused ever told him during conversation that the said consignment was sent by him. During his re-examination, PW6 deposed that Mohd. Amin told him that the consignment would come from Jeddah as the uncle of Sajjad Hussain had retired. He further deposed that Mohd. Amin did not tell him who would send the consignment. Though from the deposition of PW6 it can safely be culled out that accused Sajjad Hussain had made few calls to him during the period June 15, 2005 to June 17, 2005 but it will not be safe to draw any further inference as prayed by learned Public Prosecutor. Thus, to my mind, the testimony of PW6 is not helpful to the prosecution to prove the SC No. 09/11 Page no. 29 of 30 State Vs. Sajjad Hussain Sheikh culpability of the accused.
Conclusion:
59. Mulling over the ongoing, I am of the considered opinion that prosecution has failed to bring home the guilt of the accused for the offence punishable under Section 40 of Unlawful Activities (Prevention) Act, 1967 beyond the shadow of all reasonable doubts, thus, I hereby acquit him thereunder.
Announced in the open Court On this 5th day of February 2013 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/DELHI SC No. 09/11 Page no. 30 of 30