Delhi District Court
State vs . 1. Mohd.Afsal Kumhar on 30 October, 2007
1
IN THE COURT OF MS. RAVINDER KAUR
ASJ, N.DELHI.
SC NO. 36/02
State Vs. 1. Mohd.Afsal Kumhar
S/o Ghulam Mohd Kumhar
R/o Telwani, Anantnag,
PS Anantnag,Kashmir.
2. Ansar Ahmed Dar
S/o Late Mohd Afzal Dar
R/o Vill Dayal Gam,
PS Sadar, Anantnag,Kashmir.
3. Bilal Ahmed Dar
S/o Late Mohd Jabbar Mir
R/o Vill Dayal Gam,
PS Sadar, Anantnag, Kashmir
4. Adil Nazir Keen
S/o Nazir Ahmed keen
R/o Chini Chowk, PS Sadar,
Distt. Anantnag, Kashmir &
Vill. Tailwani, PS Anantnag,
J & K.
5. Dilip Tribhuvandas Barot
@ Dilip Bhai,
2
S/o Late Tribhuvandas,
R/o Vill. Sumok, PS & Tehsil
Unjha, Distt. Mehsana,
Gujarat.
6.Rajesh Khoda Bhai Prajapati
@ Raju Bhai S/o Khoda Bhai,
R/o M. Ramesh Kumar and
Co.,22 Kalyan Building,
Kumbhar Tukra, Bhuleshwar
II, Mumbai,
Also at 401, Krishna Building,
Dhiraj Presidency,
Kondiwali (W), Mumbai.
7. Mehboob Karim Merchant
S/o Karim Merchant,
R/o Dintinkar Street,
Memoni Compound,
Nagpara, Mumbai.
Also at No. 51, Status
Building, 5th Floor,
Uari Road, Warsowa,
Andheri (W), Mumbai.
FIR No. : 18/02
PS : Kotla Mubarakpur.
U/s : 121A/122 IPC, Sec. 3(b) 3(5), 4(b)
20 and 22(3)(5) POTA and Sec.
4(b) & 5 Explosive Substances
Act.
3
J U D G M E N T
1 The prosecution case is that during the last week of December 2001, information was received by the Central Intelligence Bureau that under the instructions of the Pak Intelligence services (ISI), the militants of Lashkare Tayyaba a terrorist organisation, were sending huge quantity of explosives for spreading terror in Delhi by bomb explosions on the eve of Republic Day and were also collecting money through hawala sources for this purpose. For the investigation of the said information a team under the supervision of Inspt. Mohan Chand Sharma, was formed comprising of SI Govind Sharma, SI Sanjay Dutt, SI Lalit Mohan, SI Hridaya Bhushan, SI Mehtab 4 Singh, SI Sushil Kumar, ASI Anil Tyagi, ASI Bhoop Singh, ASI Anil Thakur, HC Narender HC Vikram, HC Devender, HC Satender, HC Shajahan, Ct. Ranjeet and Ct. Rakesh, sources were deployed to further develop the aforesaid information and a close watch was kept on the possible hideouts of Kashmiri Militants in Delhi. On 14/1/02 at about 12:30pm specific secret information was received that three kashmiri boys having links with Lashkar e Toiba were staying with Bilal a kashmiri boy at Karan Hostel, Kotla Mubarakpur and that they were possessing huge quantity of explosives and money collected through hawala. On receipt of the aforesaid information, Inspt Mohanchand Sharma recorded the same in 5 roznamcha, discussed the matter with senior officers and at about 1:15pm left for Karan Hostel in private cars and two wheelers alongwith the aforesaid staff with arms and ammunition and reached there at 1:30pm. On secret enquiry it revealed that three Kashmiri boys who came few days ago were staying with Bilal in Room No. 3, Karan Hostel Gali Parsadi, Kotla Mubarakpur but at that time only Bilal and one other boy was present and the other two had gone somewhere. Under the instructions of the senior officers the owner of Karan Hostel Sh. Ram Kumar s/o Sh. Tej Ram was contacted. He was apprised of the situation and thereafter was joined in the raiding party with his consent. He too confirmed 6 the fact from Karan Hostel that Bilal and one of his accomplice were in the room and the other two had gone out. Thereafter alongwith Ram Kumar watch was kept on the aforesaid hostel and its nearby areas and waited for the other two boys. SI Govind Sharma asked 810 passersby to join the investigation but they refused to join the same. At about 8pm two boys were spotted coming to Karan Hostel with a bag each in their right hand who were identified by Ram Kumar as the boys staying with Bilal. Both the boys were apprehended at the gate of the hostel and their names and addresses were disclosed as Mohd Afsal Kumhar s/o Ghulam Mohd. Kumhar r/o Telwani, Anantnag, J&K and Adil Nazir Keen 7 s/o Nazir Ahmed Keen r/o Chini Chowk, PS Sadar, Distt. Anantnag, J&K. Thereafter the other two accused from the hostel room were apprehended whose name and address were later on revealed as Ansar Ahmed Dar s/o Late Mohd. Afsal Dar and Bilal Ahmed Mir s/o Late Mohd. Jabbar Mir both residents of r/o Vill. Dayalgam PS Sadar, Distt. Anantnag, J&K. The rexine bag Ex.P1 which was in the hand of Mohd. Afsal Kumhar, of red and white colour on which Speed Prepaid Mobile was written, was checked and was found containing a polythene bag Ex.P4 on which Mission Kashmir was written on one side and had posters of films on it which contained a transparent polythene Ex.P5 containing 8 kneaded black and brown (bura) colour explosive material RDX Ex.P3, Rs. 5 lakhs cash collectively Ex.P2 (30 bundles of currency notes of Rs. 50/ denomination amounting to Rs. 1.5 lakhs, 35 bundles of currency notes of Rs. 100/ denomination amounting to Rs. 3.5 lakhs) and two detonators Ex.P6 & P7 wrapped in tape with wires in the side pocket of the aforesaid bag.
1. The bag Ex.P8 in the hand of Adil Nazir Keen was of maroon colour with GEMS Park written on it in English, which was checked and was found containing one black colour polythene bag Ex.P10 containing black and brown (bura) colour kneaded explosive material RDX, Ex.P11, 9 Rs. 5 lakhs cash collectively Ex.P9 (50 bundles of currency notes of Rs. 100/ denomination) and two detonators Ex.P12 & P13 wrapped in tape with wires from the side pocket of the aforesaid bag.
2. RDX recovered from accused Mohd. Afsal and Anil Nazir on weighing were found to be 2.280 kg and 2.0 kg respectively, out of which 1010 gms RDX as sample was taken out and were kept in separate plastic jars which were numbered as S1 & S2. The recovered detonators were kept in the respective polythene bags with cotton and kept in two separate plastic jars and were marked D1 & D2 respectively. Remaining RDX 2.270 and 1.990 kgs were kept in the same poly bags, converted into two separate 10 pulandas, sealed with the seal of GS and seized. Separate pulandas of the jar S.No. S1, S2, D1 and D2 were prepared, sealed with the seal of GS and seized. The recovered bags each containing Rs. 5 5 lakhs were seized vide seizure memo. CFSL form was filled.
3. Accused Bilal Ahmed Mir and Ansar Ahmed Dar during formal interrogation disclosed that in room No. 3 Karan Hostel under their beds there were two bags containing total Rs. 24.9 lakhs and explosive materials. On their pointing out, a blue colour bag having yellow stripes and FORTEI in English written on it was recovered from under the bed near the side of bathroom. Rs. 10.90 lakh (one bundle of 11 Rs. 500/ denomination, 98 bundles of Rs. 100/ denomination and 12 bundles of Rs. 50/ denomination) were recovered from the aforesaid bag. From the recovered green colour bag , a polythene bag containing white colour explosive material and Rs. 14 lakh (14 bundles of currency notes of Rs. 500/ denomination amounting to Rs. 7 lakhs, 70 bundles of currency notes of Rs. 100 denomination amounting to Rs 7 lakhs) were recovered. The explosive material weighed 3.900 kgs from which 10 gms sample was taken out and was kept in a plastic jar and was marked as S.No. S3. The remaining 3.890 kgs and the sample S3 were separately sealed in a pulanda. The aforesaid pulandas were sealed with the seal 12 of GS. The aforesaid two bags containing Rs. 24.90 lakhs in total and the sealed plastic jars were taken into possession vide seizure memos.
4. Form CFSL was filled in. Seal after use was handed over to SI Sanjay Dutt. It was found that accused Mohd. Afzal Kumhar, Adil Nazir Keen, Ansar Ahmed Dar and Bilal Ahmed Mir inorder to spread terror in the Indian sub continent by using bombs and explosives which could cause huge loss of lives and properties had collected explosives and money for facilitating the aforesaid purpose. As such SI Govind Sharma prepared rukka and sent ASI Anil Tyagi to PS Kotla Mubarakpur for registration of the case U/s 121/121A/122/123 13 IPC and 4/5 Explosive Substance Act. After registration of the case, SI Sharad Kohli reached the spot and further investigation was handed over to him. He inspected the spot and prepared siteplan at the instance of SI Govind Sharma. He arrested the accused persons. On the pointing out of accused Adil a mobile phone bearing No. 9811336055 kept on the table of Room No. 3, Karan Hostel was taken into possession. Separate disclosure statements of all the accused persons were recorded wherein they disclosed that they had been motivated by a Pakistani terrorist of Lashkar eTayyaba namely Abu Amaar, Distt. Commander at Anantnag to join Lashkare Tayyaba for jehad and that they were planning to cause 14 explosions during the Republic Day Parade. They further disclosed that they could get more explosives recovered and that they could point out to the hideouts of the militants in Anantnag and Kashmir and get them arrested. On the basis of the disclosure statement of the accused persons and the explosives and money recovered, it revealed that they wanted to spread terror in the Indian subcontinent by causing huge loss of lives and properties, Sec. 3/4/5/20/2/22 POTO and Sec. 120 B IPC were added in the chargesheet and on 15/1/02 further investigation was handed over to ACP Rajbir Singh. During investigation the accused persons were produced in court and their PC remand was taken. In furtherance of 15 the disclosure statement of the accused persons, accused Mohd. Afzal pointed out towards accused Dilip Tribhuvandas Barot @ Dilip Bhai, Manager, M. Ramesh Kumar & Co., 448284, Ist Floor, Dau Bazar, Cloth Market, Fatehpuri, Delhi who used to provide hawala money to the terrorists for facilitating their terrorist activities. He was arrested and Rs. 4.60 lakhs hawala money was recovered from his possession. His disclosure statement was recorded wherein he disclosed that he used to provide hawala money to the terrorists on the asking of Raju Bhai Manager, M. Ramesh Kumar & Co. Mumbai. During PC Remand , DCP, Special Cell, Sh. Balaji Srivastava recorded confessional statement of accused Mohd. 16 Afzal and Adil Nazir. Thereafter they were produced before ACMM after expiry of their PC remand and their confirmation of the confessional statement was recorded. Other accused persons did not volunteer for making confessional statement as such they were not produced before the DCP Special Cell.
5. On 18/1/02 Mumbai police arrested accused Rajesh Khora Bhai Prajapati and after his interrogation, accused Mehboob Kareem Merchant was arrested. Transit remand of both the accused was obtained from ACMM Mumbai by SI Sanjay Dutt and on 20/1/02 both the accused were arrested in this case. Their separate disclosure statements were recorded.
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6. During investigation the exhibits were sent to CFSL, CBI, CGO Complex, Lodhi Colony. On 25/2/02 the CFSL result was obtained wherein it was opined that the four electronic detonators were live ones, physicochemical examination confirmed the presence of RDX, PETN and ammonium nitrate based mixture of High explosive in the contents and that the above exhibits could form components of Improvised Explosive Devices (IEDs) and were explosive substances as defined in Explosive Substances Act, 1908 and the physicochemical examination confirmed the presence of potassium chlorate in the contents which form a component of Improvised Explosive Mixture. 18
7. During investigation the call details of the mobile phone bearing No.9811336055 recovered from the accused persons were obtained. The accused had called at telephone No. 0113988310 on 7/1/02 which is installed at the office of M Ramesh Kumar & Co., 448284, Ist Floor, Dau Bazar, Cloth Market, Fatehpuri, Delhi. One another telephone was also installed at the aforesaid address bearing No. 3957693 which the accused had disclosed as 3157693. The MTNL record of telephone No. 3988310 and 3957693 was obtained and placed on record. After complete investigation the chargesheet was filed to court against the accused persons namely Mohd Afsal Kumhar, Adil Nazir Keen, Ansar Ahmed Dar, Bilal Ahmed Mir, 19 Dilip Tribhuvandas Barot @ Dilip Bhai, Rajesh Khoda Bhai Prajapati @ Raju Bhai and Mehboob Karim Merchant.
8. Accused Mehboob Karim Merchant was discharged vide order dtd. 20/4/02.
9. Accused Rajesh Khoda Bhai Prajapati and accused Dilip Tribhuvandas Barot were discharged by the order of the POTA Review Committee dtd. 30/12/04 and 10/5/05 respectively.
10. All the remaining accused persons namely Mohd Afsal Kumhar, Ansar Ahmed Dar, Bilal Ahmed Mir and Adil Nazir Keen were charged U/s 121A/122 IPC.
11. Accused Ansar Ahmed Dar was charged U/s 3(b) 3(5), 4(b) and 20 POTA and Sec. 4(b) & Sec.5 of Explosive 20 Substances Act.
12. Accused Bilal Ahmed Meer was charged U/s 3(b) 3(5), 4(b) and 20 POTA and Sec. 4(b) & Sec.5 of Explosive Substances Act.
13. Accused Adil Nazir Keen was charged U/s 3(b) 3(5), 4(b), 20, 22(3)(5) POTA and Sec. 4(b) & 5 Explosive Substances Act.
14. Accused Mohd Afsal were charged U/s 3(b) 3(5), 4(b), 20, 22(3)(5) POTA and Sec. 4(b) & 5 Explosive Substances Act.
15. The prosecution in support of its case has examined 19 witnesses. A) Secret information / Apprehension / Recovery / Arrest:
(i) The relevant witnesses regarding receipt of secret information through Central 21 Intelligence Agency that some members of Lashkare Toiba had planned to strike around Republic Day celebration and destruct the Republic Day and that huge amount from hawala route was likely to reach the terrorist as well as regarding the specific information received on 14/1/02 that some militants of Lashkar e Toiba were staying at Karan Hostel Kotla Mubarakpur and were having explosive substance and hawala money as well as their apprehension are PW8 SI Govind Sharma, PW12 SI Sanjay Dutt, PW15 Ram Kumar an independent witness, PW16 ASI Anil Tyagi , PW17 SI Sharad Kohli and PW19 Inspt. Mohanchand Sharma.
(ii) As per the prosecution during 22 last week of December 2001 information was received from Central Intelligence Bureau that under the instructions of the PAK Intelligence services the militants of LeT a terrorist organization, were sending huge quantity of explosives for spreading terror in Delhi by bomb explosions on the eve of Republic Day and were also collecting money through hawala sources for this purpose. For the investigation of the said information a team under the supervision of Inspt. Mohan Chand Sharma was constituted.
(iii) Inspt. Mohan Chand Sharma has been examined as PW19 who deposed about receipt of the information through Central Intelligence Agency in the last week 23 of December 2001. He testified that on receipt of this information, a raiding party was formed and raids were conducted at different places in Delhi. He further testified that on 14/1/02 he received a specific information through informer in his office at Lodhi Colony that some militants of LeT were staying at Karan Hostel Kotla Mubarakpur and were having explosive substance and hawala money regarding which he made DD entry vide DD No. 12 Ex.PW19/A but to maintain secrecy he did not mention the correct address and name and mentioned only South Delhi. It is stated that on this information he alongwith SI Sanjay Dutt, SI Govind Sharma, SI Hridaybhushan, SI Sushil, ASI Anil Tyagi 24 and other staff reached Gyani Market, Kotla Mubarakpur at 1:30pm where the informer took him to Karan Hostel and showed him the place. He was further informed by the informer that there were four militants staying at Room No. 3 of Karan Hostel. He got this news confirmed and came to know that while two were still inside the room the other two had gone out. As such it was decided to wait for the other two accused persons and to keep watch around the hostel. He further stated that he called the owner of Karan Hostel namely Ram Kumar examined as PW15 by the prosecution and made enquiries from him who told that one Bilal used to live in Room No. 3 and for few days three more boys were staying with 25 him. At this he deployed his staff at different places around Karan Hostel to keep a watch and PW Ram Kumar was also with him. At about 8pm two Kashmiri boys holding bag in their right hand came in front of Karan Hostel who were identified by Ram Kumar as the same boys who were living in the room with Bilal. They were apprehended and immediately room No.3 was raided from where the other two occupants of the room were apprehended.
He stated that the two persons apprehended outside were accused Mohd. Afsal and Adil present in court and they were taken alongwith their bags inside Room no. 3 of Karan Hostel. The bag in the hand of accused Afsal was checked and was found 26 containing Rs. 5 lakh in cash and 2.280 kg of RDX and two detonators . Similarly , the bag of accused Adil was checked and was found containing Rs. 5 lakhs cash, 2 kg RDX and detonators.
Regarding accused Bilal and Ansar who were apprehended from inside the room , he stated that during their interrogation they disclosed that there were two bags lying under the bed of the room which were also taken out and checked. One bag was found containing Rs. 14 lakhs cash and 3kg 900 gms of white explosive whereas the other bag was containing Rs. 10.90 lakhs. He further testified that all these articles were seized vide seizure memo Ex.PW8/A & 8/B respectively by SI Govind Sharma. 27
The perusal of seizure memos shows that the case property recovered from the possession of accused Mohd. Afsal Kumhar and Adil Nazir Keen was seized vide seizure memo Ex.PW8/A and the case property recovered from the accused Ansar Ahmed Dar and Bilal Ahmed Meer was seized vide seizure memo Ex.PW8/B. The witness correctly identified the case property in the court as recovered from each of the accused. He testified that 10 gms sample was taken out from the RDX recovered from the bags of accused Mohd Afsal, Adil respectively and 10gms sample was taken out of the explosive material recovered from green colour bag Ex.P14 from under the bed in the room. He further testified that the samples 28 and remaining explosives were sealed separately by SI Govind Sharma, form CFSL was filled and rukka was sent by SI Govind Sharma for registration of the case. Thereafter further investigation was handed over to SI Sharad Kohli who was called from the office. He testified that all the proceedings and raid was conducted under his supervision and all the four accused were arrested in his presence at the spot.
During cross examination the witness denied the suggestion that the accused were lifted from Karan Hostel on 2/1/02 and were kept in illegal detention throughout at Special Cell. He also denied that no recovery was effected from the accused persons on 14/1/02 or at their instance. He 29 further stated during cross examination that PW Ram Kumar the owner of Karan Hostel remained present with him throughout the raid and all the recoveries were made in his presence. He denied the suggestion that at the time of raid large number of people had collected at the spot.
(iv) PW 8 SI Govind Sharma was member of the raiding party in whose presence all the four accused were arrested and recovery was effected form their possession. He deposed on the lines of PW19 Inspt. Mohanchand Sharma. He identified the accused persons correctly in the court and the case property recovered from their possession. He also testified that the case property was sealed with the seal 30 of GS and after use the seal was handed over to SI Sanjay Dutt. He further deposed that he prepared rukka Ex.PW8/C and sent the same through ASI Anil Tyagi for registration of the case. He stated that SI Sharad Kohli had reached the spot since he was called there for further investigation. It is further testified that SI Sharad Kohli at his pointing out prepared siteplan Ex.PW8/DA of the place of recoveries and their arrest and further investigation was done by SI Sharad Kohli. He further testified that on 13/3/02 he had again gone to the spot ie. Karan Hostel Room No. 3 alongwith ACP Rajbir Singh which was got opened after calling its owner and the articles lying there were seized vide memo Ex.PW8/D. 31 The perusal of the memo shows that it is bearing the signatures of PW15 Ram Kumar, PW8 Govind Sharma and PW18 ACP Rajbir.
During cross examination the witness admitted that no identification mark was put on the currency notes recovered from the accused persons nor any marking was made on the wrappers or slips present on the currency notes nor any mark was put on the polythene bag. The witness clarified that currency notes were immediately sealed. He admitted that the hostel from where the accused was apprehended the particulars of other occupants of the rooms in the hostel were not ascertained. The witness could not tell as to who was the owner of H.No. 1804/2 shown in the siteplan 32 or who was living in H. No. 1804/4 & 7. Regarding plot No. 1804 he testified that it was a vacant plot. He was also cross examined regarding the surroundings of Kotla Mubarakpur and the witness admitted that there are several shops in Defence Colony and South Extn adjoining Kotla Mubarakpur but none from there were called for joining the investigation. The witness further stated in cross examination that he remained at the spot till 4am and till that time no other senior officer came to the spot except the team members who were already there and Mr. Sharad Kohli. He stated that ASI Anil Tyagi had left the spot for registration of the case. He also stated that one team member had also left 33 the spot during this period to collect weights and balances and weights and balances were brought from the office. He denied the suggestion that accused were apprehended from Karan Hostel on 2/1/02. He also denied that the siteplan Ex.PW8/DA was incorrect or that nothing was recovered from the possession of accused persons or that the explosive substance was planted upon them. He also denied the suggestion that accused persons were made to sign blank papers under coercion.
(v) PW12 SI Sanjay Dutt has deposed on the lines of PW19 Inspt. Mohan Chand Sharma and PW8 SI Govind Sharma regarding secret information, the apprehension of the accused persons and 34 recovery of incriminating articles from their possession. He correctly identified the accused persons and the case property. He testified that after case property was sealed with the seal of GS , the seal was handed over to him after use.
(vi) PW16 ASI Anil Tyagi also deposed on the lines of the witnesses referred above. This witness further stated that he had taken rukka Ex.PW8/C from SI Govind Sharma to the PS and got registered case FIR No. 18/02 and came back to the spot and handed over copy of FIR and original rukka to SI Sharad Kohli to whom the investigation was further marked. He too deposed that the case property was sealed with the seal of GS and seal after use was 35 handed over to SI Sanjay Dutt.
(vii) PW15 Ram Kumar is the owner of Karan Hostel situated at 1804/2 Kotla Mubarakpur where accused Bilal was staying in R. No. 3 on rent. He testified that sometime in January 2002 at about 2 / 2:30pm one person came to him and enquired if a boy namely Bilal was living in his hostel and he answered in the affirmative. Thereafter at about 9 /9:30pm the same person again came back and introduced himself as from police and asked him to show as to who were the persons living in that room. He accompanied him who called more police officials who were 1012 in number. He testified that at about 11pm they went to the room of Bilal and he 36 got the room opened where four boys were sitting. Out of them one was accused Bilal and three more persons were there who were seen by him only on that day. He stated that for this reason he was not able to identify them. Further all the police officials went inside the room and for about 2 hrs conducted proceedings inside the room and wrote something. Thereafter police took all the four boys with them. He stated that at that time he was outside the room and did not care what was recovered from the accused persons. This witness was declared hostile by the prosecution with the permission of the court since he was found resiling from his previous statement. During cross examination he testified, he was not 37 sure if police had come to him on 14/1/02 and stated that he only remembered it was in January 2002.
He was put a specific question as follows:
Ques. It is put to you that Inspt. Mohanchand Sharma had come to you on 14/1/02 at about 2pm and enquired from you if some Kashmiris were living in your hostel and you informed that Bilal was your tenant and three more Kashmiris were staying with him?
To the aforesaid question the witness gave the following answer :
''I had told that Bilal was my tenant and other Kashmiris used to visit him.'' The perusal of his statement shows that 38 he did not answer the suggestion that Inspt. Mohanchand Sharma had come to him on 14/1/02 at about 2pm. As such it is presumed to be admitted by him that Inspt. Mohanchand Sharma had come to him on 14/1/02 at about 2pm and had made enquiries about accused Bilal and some Kashmiris.
This witness denied the suggestion that his statement was recorded on 15/1/02 by Inspt. Sharad Kohli. He was confronted with his statement Mark A recorded U/s 161 Cr.PC where he had stated that he had told Inspt. Mohanchand Sharma that one Bilal and one more boy were present in the room after he verified the same and that he also told the police that while two boys 39 were inside the room , two other Kashmiris had gone out. He admitted the suggestion of the prosecution to be correct that police had started keeping watch around the hostel from 2:30pm to 3pm and had spread around the hostel. He also admitted it to be correct that he remained with those police persons but only for sometime and thereafter he went to his house. However he denied the suggestion that he had told the police at about 8pm that two boys were seen coming towards the hostel whose names were lateron revealed as Mohd. Afsal Kumhar and Adil Nazir Keen. He stated that he did not see them carrying bags and he volunteered that he saw all of them inside the room. He was confronted with his statement Mark A 40 where these fact finds mention. He admitted his signatures on the seizure memos i.e Ex.PW8/A & 8/B respectively regarding the recoveries effected from the possession of accused persons but he claimed that he signed them without reading. He was again put a specific question by the Ld. Prosecutor that from all the four accused persons bags were recovered and from the bags RDX, detonators and currency notes were recovered and sealed in his presence. He denied any recovery in his presence and stated that he was standing outside the room but was told by the police about recovery of 3435 lakhs of rupees and RDX from the accused persons. He was 41 confronted with the statement Mark A where he stated before the police that recoveries were made by the police in his presence and were also sealed in his presence. He admitted that on 13/3/02 police again came to the hostel and collected articles lying in the room and seized the same vide seizure memo Ex.Pw8/D. He admitted that he had produced before the police photocopy of form which he filled for verification of the tenant and copy of telephone bill to the police which were seized vide seizure memo Ex.PW8/DB. It is taken note of that this time he stated that he had signed these memos after reading, whereas regarding seizure memos Ex.PW8/A and Ex.PW8/B regarding seizure of huge 42 quantity of RDX, detonators and cash he stated he did not read the contents of seizure memos which is quite unnatural conduct. He could not admit or deny if red colour, maroon colour, green and yellow colour bags were taken away by the police on that day after they were recovered from accused persons with the contents. In other words the witness has not denied that these bags were found in the room No. 3 of the hostel and they were containing any incriminating material.
During cross examination by the defence counsel he stated that he do not remember if police had arrested accused persons on 2/1/02 nor could he say it was first week of January but he only 43 remembered it was in January 2002.
(viii) PW17 SI Sharad Kohli had taken over the investigation from SI Govind Sharma after rukka Ex.PW8/C was sent to the PS for registration of the case. He testified that on 14/1/02 he was intimated by Inspt. Mohanchand Sharma at about 11pm in the night to come at Karan Hostel, Kotla Mubarakpur. He reached there at about 11:20pm and found team of Special Cell already there at Kotla Mubarakpur. He stated that SI Govind Sharma had almost prepared rukka at that time and sent ASI Anil Tyagi with rukka to PS KM Pur for registration of the case. SI Govind Sharma handed over four bags , 8 sealed parcels, two forms CFSL, two sample seals, two 44 seizure memos and a total cash of Rs. 34.9 lakhs as mentioned in seizure memos Ex.PW8/A & B respectively and also handed over to him the custody of four accused present in court namely Afsal, Ansar, Adil and Bilal. He testified that all the seized case property and the accused persons were handed over to him in R.No. 3 of Karan Hostel, 1804/2, KM Pur and SI Govind Sharma had explained to him the entire circumstances. He further stated that siteplan Ex.PW8/DA was prepared by him at the instance of SI Govind Sharma. At about 1:15am ASI Anil Tyagi came back to the spot after registration of the case alongwith copy of FIR and rukka. He recorded the statement of public witness Ram Kumar the 45 owner of Karan Hostel at the spot . He also interrogated the accused persons and formally arrested them vide arrest memos, body inspection memos and personal search memos Ex.PW17/1 to 12 bearing his signatures and of SI Hridaybhushan and ASI Anil Tyagi at point A, B & C respectively.
He further testified that he recovered one mobile phone ie a Motorola Handset from inside the room at the instance of accused Adil Nazir Keen and he seized the same alongwith warranty card and cash memo Ex.PW16/E & G respectively vide recovery memo Ex.Pw16/A. He testified thereafter he took the case property and the accused persons alongwith the team of Spl Cell to PS KM Pur where the case property was 46 deposited in the malkhana and then accused persons were taken to Spl Cell Lodhi Colony and were interrogated in detail. He further stated that he recorded their disclosure statements Ex.PW16/B to E. He also recorded the statement of the police officers who were members of the team and witnesses of recovery. It is stated that thereafter the provisions of POTO were invoked and further investigation was handed over to ACP Rajbir. He further testified that on 15/1/02 the four accused persons were produced in the court and their police remand was sought by ACP Rajbir and on that day he joined the investigation. He further testified that accused Afsal led them to Fatehpuri Dau 47 Bazar in Old Delhi in the office of M. Ramesh and Company situated at Ist Floor and pointed out to accused Dilip Bhai who was sitting in the office vide pointing out memo Ex.PW17/A and told that he had taken three consignments of Hawala Money from Dilip Bhai totaling to Rs. 28.25 lakhs. He further testified that ACP Rajbir Singh seized three registers Ex. P25 to P27, one cash receipt book Ex.P28 vide memo Ex.PW17/B and one bag Ex.P23 containing Rs. 4.60 lakhs collectively Ex.P24 hawala money vide memo Ex.PW 17/C, from the aforesaid office. He further stated that SI Hridaybhushan was also with them at that time and had signed the memos. He testified that accused Dilip was arrested and 48 brought to Special Cell where he was interrogated and his disclosure statement Ex.PW17/D was recorded.
B. Confessional Statements: (i) PW18 ACP Rajbir Singh, Spl Cell
took over the investigation of the present case after invoking the provisions of POTO. He testified that on 22/1/02 he requested DCP Special Cell for recording confessional statement of Mohd. Afsal and Adil Nazir Keen as they volunteered to make the same. DCP gave him the date for recording confessional statements of accused persons on 24/1/02 at 5pm. On 24/1/02 he made another application for recording confessional statement of Bilal and Ansar as they too had volunteered to make 49 confessional statements. It is testified that he produced accused Mohd Afsal at the office of ACP Southern Range where DCP Sh. Balaji Srivastava had come for recording the confessional statements and after his statement was recorded he produced accused Adil Nazir Keen before the DCP for recording his confessional statement. Regarding accused Bilal and Ansar he testified that they were also produced before DCP but they refused to make confessional statements before DCP. He further testified that he applied for copy of confessional statement but his request was declined. It is testified that on 25/1/02 he produced accused Mohd. Afsal and Adil Nazir Keen before Sh. VK Maheshwari the then ACMM 50 New Delhi Courts at Patiala House for confirmation of their confessional statements alongwith their confessional statements recorded by DCP in a sealed cover. IT is stated that he moved application Ex.PW5/F before the ACMM for recording confirmation and the statements of the accused persons were recorded by the ACMM. During cross examination the witness admitted that the police remand of both the accused was to expire on 25/1/02. He further testified that he had produced both the accused Mohd . Afsal and Adil Nazir Keen in the afternoon around 2pm after making request to security personnels to allow them to remain in the premises and requesting the ACMM to remain there to produce the accused 51 persons before him since the police remand was expiring on the same day. It is testified that Ld. ACMM recorded the statement of accused persons and proceedings in his chamber.
(ii) The confessional statement of accused Mohd. Afsal Ex.PW1/A and Mohd. Adil Ex. PW1/B & PW1/C recorded in two parts U/s 32 POTA were recorded by PW1 Balaji Srivastava the then DCP Special Branch, Delhi. He testified that on 22/1/02 ACP Rajbir had sent a request informing that two accused persons namely Mohd. Afsal and Adil had expressed their willingness to make confessional statement before DCP, so he fixed the date 24/1/02 for recording the confessional statement. Both 52 the accused were produced before him by the IO at the office of DCP Southern Range, Operation Cell, Spl Cell, Lodhi Colony where he had told the IO to produce the accused Mohd Afsal before him at 5pm. It is stated that he asked Mohd. Afsal if he had expressed his willingness to make confessional statement to which he replied in positive. Thereafter he asked him whether he was under any threat, inducement or pressure which he denied. He testified that he had put these questions to the accused after sending IO out of the room. However his PA ASI Steno Rajeev Sharma was in his room. He testified that he asked the accused as to in which language he would like to make the statement to which he replied that 53 he was conversant with English language and that his statement was recorded directly on the computer. He stated that he had given the warning to the accused that he was not bound to make any confessional statement and that if he made any such confession, the same could be read against him in evidence. The accused however showed his willingness to make a confessional statement. As such he recorded the confessional statement of the accused after satisfying himself that the accused was making the confessional statement voluntarily. He further testified that the recording of confessional statement completed at 6:45pm which was read by the accused on the computer itself. Thereafter 54 print out of the same was taken out which was again read by the accused who signed the same on all pages and he (the witness) signed it on the last page. HE further testified that after recording the confessional statement he called the IO inside the room and the accused was sent outside and he told the IO to bring the second accused. He further testified that accused Adil was then produced before him and IO was asked to leave the room. He asked Adil if he had expressed his willingness to make confessional statement to which he replied in positive. He stated that accused Adil too was given the warning that he was not bound to make any confessional statement and that if he made any such confession, 55 the same could be read against him in evidence but he still wanted to make a confessional statement. He was also asked if he was under any pressure, threat or inducement to which he stated that he was not under any pressure, threat or inducement. The accused was asked as to in which language he wanted to make the confessional statement to which he replied that he could read, write, speak and understand English language. He further testified that the confessional statement of the accused was recorded on computer and the subsequent endorsement was also recorded on the computer. He further stated that accused was seeing what was being recorded in the computer and thereafter a 56 print out of the same was taken out which was read by the accused who signed the same on all pages and that the same was signed by him on the last page. After recording the confessional statements , he sealed them in an envelop Ex.PW1/D and then were put in a bigger envelope Ex.PW1/E and sealed with his seal and sent the same to ACMM Patiala House through IO.
During cross examination he testified that his office was at PHQ IP Estate during those days. He stated that he had himself told the IO that he would come to Lodhi Road for recording the confessional statements. He admitted that when the accused persons were produced before him 57 on 24/1/02 he did not adjourn the proceedings for recording confession to give any time to the accused persons to think over. He also testified that the confessional statement was recorded in the computer available in the ACP office on hard disk and it was not saved and it was deleted after taking out print. He denied for want of knowledge if accused persons had made any disclosure statement before the IO before they were produced before him. He also denied that the confessional statement is only reproduction of the disclosure statement of accused persons. He further testified in cross that the confession was recorded as per the narration made by the accused and he had not put any question to 58 the accused but they themselves narrated their entire statement.
(iii) PW5 Sh. VK Maheshwari the then ACMM Patiala House had conducted the confirmation proceedings regarding the confessional statements Ex.PW1/A , PW1/B & PW1/C respectively made by accused Mohd. Afsal and Adil respectively before PW1 Sh. Balaji Srivastava the then DCP Spl Branch, Delhi. PW5 Mr. Maheshwari testified that on 25/1/02 while he was working as ACMM in Patiala House Courts, ACP Rajbir Singh the IO of the case produced both these accused before him for confirmation of their statements made by them on 24/1/02 before DCP Sh. Balaji Srivastava. He testified that their confessional statements were produced 59 before him in sealed parcel which were taken out and he had put his initials on each page. He proved that the confessional statements of both accused Mohd Afsal Ex.PW1/A and Adil Ex.PW1/B & PW1/C were bearing his signatures at point E, F & G respectively . He further testified that in the proceeding sheet Ex.PW5/A he recorded the enquiries made from the accused persons regarding the confession and thereafter he recorded their statements Ex.PW5/B & C in his chamber. He further stated that the accused persons were identified by the IO. Mr. Maheshwari was cross examined at length on behalf of both the accused Mohd. Afsal and Adil. He admitted that on 25/1/02 the day when the accused persons were 60 produced before him for confirmation of their confessional statements, the security personnels had taken the security of Patiala House Courts in view of Republic Day Parade on the next day, however he clarified that Judicial Officers were not turned out of their chambers and courts. He denied the suggestion that the entire Patiala House Complex including his court were sealed by security personnels. Regarding the identity of both the accused the witness stated that he cannot identified them as they were not personally known to him and were identified before him by the IO and he had only seen them at the time of proceedings and not thereafter. He denied the suggestion that accused were not 61 produced before him or he recorded the proceedings at the instance of IO in routine manner or that the accused persons did not sign in his presence. He also stated in his cross examination that both the accused were well versed with English language and were answering his queries in English language and were also understanding Hindi language.
C. RECOVERY OF MOBILE PHONE AT THE INSTANCE OF ACCUSED ADIL NAZIR KEEN: (i) The prosecution has alleged that
a mobile phone bearing No. 9811336055 was recovered from the room of accused Bilal lying on a table at the instance of accused Adil Nazir Keen. PW17 SI Sharad Kohli and 62 PW16 ASI Anil Tyagi deposed about recovery of mobile and its seizure vide seizure memo Ex.PW16/A.
(ii) PW6 Rajeev Pandit Nodal Officer Sterling Cellular Ltd testified that he received letter Ex.PW6/A in his office. The said letter is written by ACP Rajbir Singh the IO of the case addressed to the Nodal Officer, Essar Telephone, Okhla New Delhi seeking details of the mobile No. 9811336055 since activation alongwith the details provided by the customer while purchasing the said mobile phone and sim card. The witness stated that the said letter was replied vide call details Ex.PW6/B and the cell ID 11721 as per the classified list was of Kotla Mubarakpur area. The perusal of call 63 details Ex.PW6/B shows that two calls were made from the aforesaid telephone one call was made on 7/1/02 to telephone No. 0113988310 Cell ID No. 11721 IMEI No. 449269417365750 and other call is received on the above mobile number from the telephone number 0113988310 with the same Cell ID and IMEI number on 8/1/02 .
During cross examination the witness testified that telephone No. 9811336055 could have been activated on the same day or before 1/1/02. He could not say specifically that the date of activation was 1/1/02 or not . He also could not state if the above phone was against cash card or against sim card as he stated that for the same he would have to check the official records. He 64 admitted that for supplying sim card customers name and his proof of residence is asked for. However since the witness was working on the administrative side so he could not tell whether the photograph of the customer is asked for or not. Similarly he could not say if verification of signatures or of customer is also asked for by the sales department or not.
(iii) PW13 Surender Singh telephone operator Tis Hazari Exchange, produced the record pertaining to telephone No. 3988310 and 3957693. He stated that telephone No. 3988310 was installed in the name of Gopaljee Monaljee Barot at 4482/84 , First Floor, Dau Bazaar, Cloth Market, Fatehpuri and other telephone No. 3957693 is installed 65 in the same address in the name of GM Barot.
D. SANCTION: (i) PW2 Sh. GL Meena, Dy. Secretary
Home proved the sanction U/s 196 Cr.PC accorded by LG for prosecution of the accused persons U/s 121A , 122, 123, 121 & 121B IPC as well as sanction under POTO U/s 3,4,5, 20,21 & 22 POTO as Ex.PW2/A & PW2/B respectively.
(ii) PW7 DCP TN Mohan, Headquarter proved the sanction order Ex.PW7/A accorded by the Commissioner of Police for prosecution of all the accused U/s 4 & 5 Explosive Substances Act which was communicated by him to the Court. During cross examination he denied the suggestion 66 that sanction was accorded by the CP without application of mind or he signed the draft sanction.
E. EXPERTS OPINION: (i) PW17 SI Sharad Kohli testified that
on 25/1/02 he had taken the exhibits five in number i.e 3 samples and two parcels of detonators from MHC(M) PS KM Pur vide RC No. 3/21 and two CFSL forms and two sample seals and deposited the same to CFSL CGO Complex Lodhi Road. He testified that so long the case property remained in his possession the same was not tampered with. During cross examination the above referred testimony of PW17 was not touched at all, as such it has remained unshattered and is deemed to be admitted by the 67 accused persons.
(ii) PW11 HC Pritam Singh who was working as MHC(M) at PS Kotla Mubarakpur on 15/1/02 testified that on that day SI Govind Sharma had deposited five sealed parcels containing case property of the case in the malkhana which was entered at S.No. 1061 and proved the copy of entry as Ex.PW11/A. He further testified that SI Sharad Kohli had deposited on the same day mobile phone, cash and personal search articles of the accused persons which he entered at S.No. 1062 and the photocopy of the entry is Ex.PW11/B. He further testified that he sent five sealed pulandas deposited vide entry No. 1061 to FSL CGO Complex on 25/1/02 68 through SI Sharad Kohli.
During cross examination he testified that form CFSL and sample seal were also given to him and as mentioned in the road certificate, sample seal and form CFSL were sent alongwith parcels. Regarding the mobile phone he testified that it was in a sealed cover but did not know that it was containing sim card. He stated that sim card was not given to him separately.
(iii) PW3 NB Bardhan, Sr. Scientific Officer, examined the case property contained in a sealed parcel consisting of lump of white powdery material which on examination was found containing potassium chlorate and could form a component of Improvised Explosive material. The witness 69 proved the report as Ex.PW3/A. The aforesaid witness was not cross examined by any of the accused as such the report Ex.PW3/A given by the witness after conducting lab test on the material contained in parcel S3 is deemed to be admitted as correct.
(iv) PW4 AR Arora Sr. Scientific Officer cum Chemical Analyser to Govt of India, CFSL CBI examined the contents of four sealed parcels sealed with the seal of GS and gave his report as Ex.PW4/A. He testified that he conducted the Lab test on the contents of these parcels. He stated that parcel marked S1 and S2 contained brown colour putti like material about 10 gms in weight each, whereas parcel No. D1 & D2 70 contained two electric detonators each having white electric wire. He stated that on conducting the lab test he found that all the electronic detonators were live. Regarding the contents of parcel No. S1 & S2 he testified that on physico chemical examination the presence of RDX PETN Ammonium nitrate basis and mixture of high explosive was confirmed in their contents. He further testified that the contents of all the parcels were explosive substance as defined in the Explosive Act 1908. He was cross examined only on behalf of accused Adil and Mohd Afsal. However, nothing material could be extracted during his cross examination. He was not even suggested that he did not conduct any test 71 on the contents of the parcels or that his report is incorrect.
F. FIR (i) PW9 HC Surat Singh had recorded
formal FIR No. 18/02 PS Kotla Mubarakpur Ex.PW9/A on the basis of rukka sent by SI Govind Sharma through ASI Anil Tyagi at 11:40pm on 14/1/02.
During cross examination this witness stated that it took him around 1 hr in writing the FIR . Regarding Col. No. 7 in the FIR he stated that it was left unfilled inadvertently.
G. TENANT VERIFICATION:
PW10 HC Babulal produced the stranger roll register containing the information of the strangers found in the 72 street or of the tenants occupying premises in the area as furnished by the Beat Constable. He testified that in the relevant entry in the register Ex.PW10/A information received from Beat Constable on 26/12/01 was recorded regarding accused Bilal Ahmed.
H. PW14 Mohan Madhav Kulkarni, Police Inspector, CID Crime Branch, Bombay deposed about furnishing the information regarding Raju Bhai who was discharged by the POTA Review committee on 10/5/05 and Mehboob Karim Merchant who was discharged by the Court vide order dtd. 20/4/02, to the IO of this case, as such the testimony of this witness is of no relevance qua the present accused.
73I. PW18 ACP Rajbir Singh took over the investigation of the case after the provisions of POTA were invoked. He testified that on 15/1/02 he was working as ACP Special Cell, Lodhi Colony when SI Sharad Kohli produced all the four accused namely Mohd Afsal, Adil Nazir, Bilal Ahmed and Nisar Ahmed Dar before him. After going through the disclosure statements made by the accused persons and recovery memos, he came to the conclusion that they were members of a terrorist outfit LeT and had intentions to create chaos and disturb the government activities on the Republic Day and that they were liable to be booked under POTO so the provisions of POTO were invoked and investigation was taken 74 over by him. It is testified that he produced both the accused in the Special Court designated under POTO and obtained their police remand. Thereafter at the instance of accused Mohd Afsal, he alongwith SI Sharad Kohli, SI Hridaybhushan and other staff went to the office of M Ramesh and Company where he pointed out towards accused Dilip Bhai vide pointing out memo Ex.PW17/A and made enquiries from Dilip Bhai who told him that he had received instructions from Bombay Office of M. Ramesh & Co. from Rajesh Khoda Prajapati the Manager of the Company to give money to accused Mohd Afsal. He further informed that money to the tune of Rs. 28.25 lakhs was received by him from Bombay which 75 was given to accused Mohd. Afsal in three installments and that at the time of taking money accused Mohd Afsal had given his code name as Rashid. He further disclosed that he had received another hawala payment of Rs. 4.6 lakhs from Bombay office . The said amount was lying in the black bag in the office of Dilip Bhai and was seized vide seizure memo Ex.PW17/C. Besides three registers and one bill book was also seized from his office vide memo Ex.PW17/D. He was arrested and his personal search was conducted vide memo Ex.PW17/E and his arrest cum inspection memo Ex.PW17/DA was prepared. His disclosure statement was recorded. Police team was sent to Bombay for making 76 enquiries from Rajesh Khoda Bhai Prajapati. Accused Rajesh Khoda and Mehboob Karim were arrested. They were interrogated and their disclosure statements were recorded. He got recorded the confessional statements of accused Mohd Afsal and Adil Nazir Keen from the then DCP Sh. Balaji Srivastava and also produced the accused persons before the then ACMM Sh. VK Maheshwari for confirmation of the disclosure statements. Besides he collected the details of the telephone numbers 3988310 and 3957693 and the call details of mobile No. 9811336055 recovered from Karan Hostel. On 13/3/02 he seized the belongings of the accused persons lying in Room No. 3, Karan Hostel and copy of verification form of tenant and one 77 tenant bill of phone No. 4655730 from PW Ram Kumar the owner of the hostel. He also collected the relevant entries regarding verification of tenants from MHC(R) KM Pur and the report CFSL. Thereafter he applied for grant of sanction for prosecution of accused persons under Explosive Substances, Act, POTA and U/s 121A/122 and other provisions of IPC U/s 196 Cr.PC , obtained sanction, recorded the statement of the witnesses, made efforts to arrest M. Ramesh Kumar, Sultan Karim Merchant, Nisar and Abu Amaar the names disclosed by the accused persons in their confessional and disclosure statements.
17. Statement of the accused persons were recorded U/s 313 Cr.PC whereby they 78 have denied the incriminating evidence against them and claimed to have been falsely implicated. It is claimed that they were arrested on 2/1/02 and that the case property was planted upon them. Accused Mohd Afsal and Adil denied having made any confessional statement before DCP Special Cell.
18. The accused persons have produced in defence 15 witnesses.
(i) DW1 Arvind Barot who was an employee of M. Ramesh & Co. in Delhi as a delivery boy and deposed about the raid conducted by the Government officials in the office on 15/1/02 at about 5:30/6pm. He stated that the accused persons were not accompanying those government officials at 79 the time of raid. To the same effect is the defence witness Shailesh examined as DW2.
(ii) Dw3 Bhaqtawar Zaman the brother of accused Ansar deposed that accused Ansar is his younger brother and he also knew accused Bilal being his neighbourer and accused Adil being friend of accused Ansar. He stated that he came to know of accused Mohd Afsal only after this case. He deposed about the rivalry his family had with the militants. He testified that upto April 2002 he was working in Ludhiana in a private company Gazibo Industries Ltd at Ludhiana. On 31/12/01 at night he received a call from his brother Ansar that he had come to Delhi for business and for reconciliation of accounts and that he would 80 spend 23 days in Delhi and would visit him if possible. On 3/1/02 he gave a telephone call at his house in Anantnag and enquired about Ansar and he was told that Ansar had not reached home. On 4/1/02 he made telephone call at Delhi to one Motilal Nathu and Mansoor employee of Goodluck Roadways who told him that Ansar had visited them on 1/1/02 and 2/1/02 and perhaps had left for home thereafter. He again gave a call to his house at Anantnag on 5/1/02 and came to know that one Mohd Ashnaf Sheikh had informed his Fufi's house in Anantnag that Bilal and Ansar alongwith two more boys were picked up by the police on 2/1/02 at night and he had been trying to contact them. He further 81 stated that his family gave him telephone number Bilal and told him that Ansar used to stay with Bilal and at their instance he gave a call at Karan Hostel to Bilal's room but he was not given any satisfactory reply and was told that Bilal had gone somewhere so he disconnected the phone. Thereafter he contacted Motilal but he too could not give any information regarding accused Bilal and Ansar. So he suggested his family that he should visit Delhi but he was prevented by them on account of incident of attack on Parliament on 13/12/01 and the coming celebrations of 26th January. On 11/1/02 he learnt from his family that it was confirmed that accused Bilal and others were arrested by police in Delhi on 2/1/02. 82
During cross examination this witness admitted that he made no complaint in writing personally to anyone about picking up of Ansar and Bilal since his family was making efforts. He stated that he used to talk to accused Bilal at Karan Hostel sometimes and he was having his telephone number.
(iii) DW4 Ghulam Hasan Butt the neighbourer of accused Bilal and acquaintance of accused Ansar deposed that he was informed by Bilal's elder brother on 4/1/02 that Bilal was arrested by the police on 2/1/02. He further testified that in this regard he alongwith others met Chairman Legislative Council Sh. AR Dar on 11/1/02 who assured them that he would take 83 concrete steps in this regard. He further stated that he came to Delhi on 21/1/02 after learning from TV about the arrest of accused persons.
In cross examination he admitted that they did not come to Delhi after coming to know on 4/1/02 that the accused were apprehended.
(iv)DW5 Ghulam Mohd Wani to whom both the accused Bilal and Ansar were known, also deposed on the lines of DW4 that on 4/1/02 he came to know about the arrest of accused Bilal and Ansar on 2/1/02. He further deposed that on 11/1/02 he alongwith other Biradari people met the Chairman of Legislative assembly in this regard.
84During cross examination this witness stated that no written representation was given to any authority about the apprehension of accused persons on 2/1/02. He further stated that some relative of Bilal studying in college had given a call to his Phufi and from there the information was given to the family of Bilal that they were arrested by the police. This witness could not give the name of the person who had given the telephone call nor from where Bilal and Ansar were lifted by the police.
(v) DW6 Gulam Mohd Sheikh claimed himself to be neighbourer of accused Ansar and that accused Bilal is his covillager. He 85 stated that he learnt on 4/1/02 about the arrest of accused Ansar by Delhi police on 2/1/02.
During cross examination this witness could not depose as to where accused Ansar used to stay in Delhi or when he left for Delhi. He admitted that he made no written representation to anyone regarding their arrest.
(vi) DW7 Arvind Bhai Prajapati, DW8 Bharat Kumar and DW9 Babu Bhai are defence witnesses relating to the firm M . Ramesh & Co and are not relevant qua the present accused persons.
(vii) DW Motilal Nathu has been wrongly mentioned as DW9 and be read as DW9A. He deposed that he knew accused 86 Ansar Ahmed Dar for the past about 2 years as he had business dealings with him. He stated that he had last met him on 1/1/02 alongwith two persons and told him that they wanted to purchase packing material and then they again met him on 2/1/02 and he was told that the two persons accompanying Ansar Ahmed were to purchase the packing material. During his testimony he pointed out towards accused Adil and Mohd Afsal as the two persons who had accompanied Ansar. He stated thereafter the accused did not meet him and after 78 days he saw news on TV and saw four persons including three of whom had met him on 2/1/02 . He testified that in between he had received a phone call from 87 the house of Ansar when either his brother or someone else had called him and enquired about Ansar and he had told them that he had left his place.
(viii) DW10 Hari Ram Nigam dealing in packing material, to whom the accused Ansar Ahmed Dar was introduced by DW9A Motilal deposed that accused Ansar alongwith others had come to him on 2/1/02 and asked him to give quotation for packing material but he told him that they should bring the sample of nature of packing material wanted by them only thereafter he could give the quotation. The accused told him that they would come later but after 2/1/02 accused Ansar did not visit him.
88
(ix) DW11 Bashir Ahmed Constable with J & K police posted at PS Achabal distt. Anantnag produced the copy of FIR No. 02/2002 dtd. 9/1/02 registered with PS Achabal U/s 302 IPC Ex.DW11/A attested by the SHO alongwith letter Mark A. During cross examination this witness admitted that the copy of FIR was not attested by SHO but ASI Ghulam Hussain Dar since SHO was on leave and he also admitted that in the FIR the name of either the deceased or the accused is not mentioned.
(x) DW12 Ghulam Mohd Record Keeper Home Department J & K , New Secretariat, Srinagar produced the summoned record i.e file No. Home/PB V/Misc./2002. He testified that the photocopy 89 of letter of Chairman, J&K Legislative Council is in the file which was Marked as Ex.DW12/A. During cross examination the witness stated that letter was received in his office on 16/1/02 through General Receipt but he could not state the letter was delivered by hand or came through post as the record was maintained by a Clerk of General Receipt in the register. However he did not produce the aforesaid register. He also could not state if the Chairman of Legislative Council was in Jammu or Srinagar in January 2002.
(xi) DW13 Sanjay Pandita Sr. Assistant J & K Legislative Council testified that Sh. Pravesh Diwan an IAS officer in Jammu was 90 posted as Resident Commissioner, J & K House, 5 Prithviraj Road, New Delhi and that an official telephone bearing No. 4611506 was installed at Prithviraj Road. He further testified that he could identify the signatures of Ashfaq Ahmed Wani on Ex.DW13/A at point X. However this witness did not state as to who was Ashfaq Ahmed Wani and the perusal of the document Ex.DW13/A shows that it is a certificate issued in respect of Letter No. PO/HCM/759/LC02 dtd. 14/1/04 addressed to the then Hon'ble Chief Minister Jammu and Kashmir and a certificate was issued to the effect that this letter was issued from the office of J&K Legislative Council Secretariat , Srinagar/Jammu vide letter No. 91 PO/HCM/893/LC04 dtd. 20/8/04. Even the name of Ashfaq Ahmed Wani is not mentioned in the aforesaid certificate and it is signed by Private Secretary to the Chairman Legislative Council which are identified at point X on Ex.DW13/A by the witness to be of Ashfaq Wani.
This witness further testified that this letter Ex.DW13/A was in respect of letter No. PO/HCM/759/LC02 dtd. 14/1/02. He further stated that fax dtd. 14/1/02 is Ex.DW13/B and that this copy was sent by Legislative Council Chairman to the then Chief Minister Sh. Farooq Abdullah of J & K at New Delhi Kashmir House on 14/1/02 at 10:30am and was received at New Delhi at 10:38am on the same day vide receipt Ex.DW13/C. He 92 further stated that the fax bears signatures of Legislative council Chairman Abdul Rashid Dar whereas receipt Ex.DW13/C was bearing the signatures of PA to the Chairman Legislative council at Point X2. He further stated that the office maintains dispatch register of the letter / fax. He produced the extract of the dispatch register as Ex.DW13/D and encircled the relevant portion at point X3. He further stated that on 11/1/02 on Friday parents of all the accused from Kashmir came to the residence of Chairman Legislative Council in the afternoon and complained that their children had been taken by Delhi Police. During cross examination he admitted that the letter / certificate Ex.DW13/A finds 93 mention date as 14/1/04 and not as 14/1/02. He further stated that a corrigendum Ex.DW13/E was issued in the month of September 2004. He admitted that he had not verified the contents of these letters personally nor had any knowledge if concerned authority gave reply to all these letters. He admitted that reply of the concerned authority is not on the official record. He further clarified that parents of Kashmiri boys came to Chairman in routine as General Public and no official investigation of the antecedents of the accused were conducted by the Chairman.
(xii) The other witness examined in defence is DW14 Abdul Rashid Dar, the Chairman of Jammu & Kashmir Legislative 94 Council since the year 2000. He testified that on 11/1/02 the parents of accused Mohd. Afsal, Adil Nazir and Bilal Ahmed Mir as well as brother of Ansar Ahmed Dar came to him and told him that aforesaid accused had gone to Delhi on 30/12/01 and that they were picked up by Delhi police on 2/1/02. He further testified that they were anxious to know about the whereabouts of the accused and requested him to help them in tracing them. He stated that it was Friday and that Saturday, Sunday were Holidays, so he asked them to come on Monday morning. On 14/1/02 they again visited his residence at Jammu in the morning and then he contacted the Chief Minister of State who was in Delhi at that 95 time and informed him about the incident. The Chief Minister asked him to fax the names and particulars of the accused persons, so he instructed his PA to prepare the fax message so that it would be ready by the time he reached his office. He further stated that he reached the office at 9:30am, signed the fax and it was sent by his Secretary. He identified his signatures on the fax message Ex.DW13/B. It is further stated that around 11am, he again spoke to the Chief Minister who told him that he had received the fax and would be coming to Jammu in the evening, then he would let him know about the matter. Further that Chief Minister returned in the evening and told him that he had taken up the matter 96 with the Home Secretary and was told that a case had been registered and the accused would be produced in the court on the next day.
During cross examination he admitted that he did not personally verify as to whether the accused persons had left for Delhi on 30/12/01 and whether they were actually picked up by the police on 2/1/02 and believed whatever the relatives of the accused persons told him. He admitted that he did not verify the antecedents of three accused other than accused Mohd Afsal who was a Joint Engineer and admitted that they were not known to him personally. He further stated that Chief Minister gave him the impression that the accused persons 97 were arrested on 14/1/02 and assured him that the accused were alive and that was their anxiety. He further stated that he had no knowledge that the accused persons were found in possession of huge quantity of RDX, huge sum of hawala money and electronic detonators.
19. I have heard arguments from both the parties who have also submitted written arguments. I have gone through the written submissions and the relevant material on record carefully.
20. It is submitted by the defence counsel that all the accused persons are falsely implicated in the present case and nothing incriminating was recovered from their possession and has submitted that a 98 fax dtd. 14/1/02 was sent by DW14 Abdul Rashid Dar the then Chairman Jammu & Kashmir Legislative Council to the then Chief Minister of Jammu & Kashmir at Delhi and deposed that the parents of accused Mohd Afsal, Adil Nazir, Bilal Ahmed and brother of Ansar Ahmed came to him on 11/1/02 and informed him that the accused persons were picked up by the police on 2/1/02 and they were anxious to know about their whereabouts. It is submitted that as per the testimony of this witness he called the relatives of the accused persons on Monday and they visited him on 14/1/02 in the morning. He contacted the Chief Minister of J & K who was in Delhi at that time and as desired by the Chief Minister 99 he sent a fax Ex.DW13/B containing the names and particulars of the accused persons and that he personally spoke to the Chief Minister who confirmed having received the fax and told him that he would let him know the status of the accused persons by the evening and in the evening he was informed by the Chief Minister that the case was registered against the accused persons. It is further submitted that DW13 Sanjay Pandita produced the original fax message in the court, the fax copy of which was sent to the Chief Minister and that he also produced the dispatch register maintained in the office to prove that the fax message was sent to the Chief Minister. It is further submitted that PW15RamKumar 100 owner of the Karan Hostel also did not support the version of the police as he stated that all the four persons were present in the room when the police picked them up. It is submitted that on the other hand the case of the prosecution is that two people were apprehended from the gate while two people were apprehended from Room No. 3 of Karan Hostel.
21. Regarding the siteplan Ex.PW8/DA it is submitted that the entire case of the prosecution is based on the allegation that explosions and huge amount of cash was recovered from 1804/2, Room No. 3 Karan Hostel, Parsadi Gali, Kotla Mubarakpur and that it is also the case of the prosecution that SI Sharad Kohli PW17 had prepared the 101 siteplan at the instance of PW8 SI Govind Sharma. It is submitted, the perusal of the siteplan shows that property bearing No. 1804/2 was a vacant plot and that the place of recovery in the siteplan is shown as 1804/1 Parsadi Gali, Kotla Mubarakpur. It is further submitted that the siteplan does not show any first floor and it only shows the stairs going to the second floor which proves that no such recovery of explosives and cash was effected from the accused persons nor they were apprehended from there.
22. Regarding recovery of incriminating material from the possession of accused persons it is submitted that as per the siteplan two boys were apprehended on the 102 gate i.e point A and simultaneously two boys were arrested from the room i.e point B which is not the case of the prosecution. It is further submitted that PW15 Ram Kumar has categorically stated in his examination in chief that he did not see any explosives and money being recovered from the accused persons. He further deposed that the police came to his hostel and he took them to the room where all the four accused were present. It is submitted that in view of his such statement there is no question of the accused being apprehended from the gate and as such the recovery from their possession as alleged by the prosecution is doubtful. It is submitted that no other public witness was joined in 103 the investigation to be a witness to the alleged recovery though the areas was highly populated which raises doubt about recovery of incriminating material from the accused persons. To that effect he has relied upon the authority reported in 1998 SCC Crl. 711 State of Punjab Vs. Swaroop Singh. Regarding the sample taken out of the RDX allegedly recovered from the accused persons it is submitted that as per the case of the prosecution the RDX was weighed and then sample of 10 gm was taken, CFSL form was filled and after writing of the rukka, the same was sent to the PS through ASI Anil Tyagi for registration of the FIR. It is submitted that PW8 SI Govind Sharma in his cross examination stated that ASI Anil 104 Tyagi had left the spot for registration of the FIR and one team member had left spot during the period for collecting weights and balances. ASI Anil Tyagi had come back at around 1:15am in the midnight after registration of the FIR. Weights and balances were brought from the office. It is submitted that in view of the aforesaid testimony of PW8 SI Govind Sharma when rukka was taken by ASI Anil Tyagi for registration of the case weights and balances were not at the spot then how the police party weighed the RDX allegedly recovered from the accused persons and how 10 gms was taken out has not been explained. It is submitted that in the rukka as well as in the FIR it is clearly mentioned that RDX was weighed 105 and sample was taken. It is vehemently argued that in view of these circumstances the alleged recovery from the possession of accused persons has become extremely doubtful and the entire recovery is planted upon the accused persons.
23. Seizure of Mobile :
The defence counsel has also assailed the seizure of mobile. It is submitted that there were 1015 persons present in the room but none of them could see the mobile lying on the table when the entire room was searched and suitcase and bag were recovered from under the bed. It is submitted that till the rukka was sent and FIR was registered the mobile was not spotted by anyone in the room and it is 106 only when SI Sharad Kohli took over the investigation, accused Adil pointed out towards the mobile lying on the table. It is submitted in the above circumstances, recovery of mobile is doubtful.
24. Regarding mobile phone Ex.P22 it is submitted that as per the prosecution accused Adil purchased mobile phone bearing No. 9811336055 on the instructions of Abu Amaar Distt. Commandor LeT , J & K and was allegedly seized from the room in the hostel lying on the table, on the pointing out of accused Adil. It is submitted that the bare perusal of the bill Ex.PW16/F shows the date of purchase as 6/1/02 whereas the owners copy of the Motorola Ex.PW16/G shows the date of purchase as 107 6/1/01. It is further submitted that no address of the purchaser is mentioned in any of the bills produced by the prosecution nor any witness has been produced from the company namely Cell Home H30, South ExtnI, New Delhi from where the mobile is alleged to have been purchased. It is submitted that PW6 Rajeev Pandit from Sterling Cellular Ltd produced the computer data of the said telephone which is Ex.PW6/B but during his cross examination he could not tell the exact date of activation nor he could confirm if the said card was prepaid or postpaid. It is submitted that this witness categorically stated that for supplying sim card they asked the customers name and his proof of 108 residence. The defence counsel has questioned that if these rules were mandatory then how could the said sim card be activated without any verification of accused Adil Nazir Keen and his address. It is submitted that prosecution has failed to prove that this phone was purchased by Adil Nazir Keen , as such the mobile phone and sim card have been planted upon the accused. It is submitted that there are material contradictions regarding the date of purchase of the aforesaid mobile which shows that the entire story is concocted. It is further submitted that in the confessional statement of accused recorded U/s 32 POTA the date of purchase is mentioned as 7/1/02 , then how it was purchased on 6/1/02. 109
25. Regarding the allegation that the mobile was purchased for communication with LeT Commandor it is submitted that prosecution has failed to prove the aforesaid purpose as only there were two calls found recorded one outgoing and another incoming. It is submitted that the only purpose of the prosecution to have the mobile angle was to complete their chain of events and link the accused persons to a hawala operator . It is submitted that accused namely Dilip Bhai, Rajesh Bhai and Mehboob Karim Merchant were discharged by the court, hence the hawala angle is already demolished.
26. Regarding the arrest of the accused persons it is argued that all the 110 documents relating to the accused are fabricated as in the arrest memo the date mentioned on the top is 14/1/02 whereas in Col. No. 6 the date of arrest is shown as 15/1/02. It is submitted that it appears that the arrest memos were already prepared on 14/1/02. He has further drawn the attention of the court to the Col. No. 5 of arrest memo of all accused persons wherein it is mentioned Kotla Mubarakpur and no address is mentioned in any of the arrest memos which falsifies the arrest of any accused. It is submitted that in the present case, the prosecution violated the guidelines laid down by the the Hon'ble Supreme Court in the case of DK Basu Vs State of West Bengal reported 1997 (1) SCC 416 that 111 the police officer carrying out the arrest shall prepare arrest memo and get the same signed by atleast one witness who may be either a family member of respectable member of a society. It is submitted that even in the present case PW15 Ram Kumar the owner of the hostel was not made to sign the arrest memo.
It is further submitted that no information regarding arrest of the accused persons was ever given to their family members.
27. It is also alleged that the provisions of Sec. 51 POTO were not complied with during the investigation of the present case.
28. Regarding sanction U/s 49 POTO, 112 it is submitted that LG had not applied his mind while granting sanction as it was PW2 GL Meena himself who had given the sanction on behalf of the LG. Besides he has submitted that the sanction for the offences was granted more than one time.
29. It is submitted that even the disclosure statement of the accused persons were recorded by SI Sharad Kohli in violation of Sec. 50 POTO as the disclosure statements Ex.PW16/B to E shows that these were recorded by SI Sharad Kohli even after the provisions of POTO were invoked. It is submitted that as per Sec. 50 POTO the investigation of any offence punishable under this act had to be done by the ACP. He has cited various authorities in support 113 of his contentions referred above reported in Beckodan Abdul Rahiman Vs. State of Kerala 2002 SCC(Cri), Bihari Manjhi & Ors Vs.State of Bihar 2002 II AD (Cr.) SC 457, State of Punjab Vs Baldev Singh 1999 SCC (Cri.) 1080, The State of West Bengal & Ors. Vs Babu Chakraborty 2004(3) Crimes 378 (SC). 30(i) Regarding confessional statements the defence counsel has argued that the bare perusal of the confessional statements of accused Mohd. Afsal and Adil Nazir would show that the same were recorded in gross violation of every safeguard provided by the legislature. It is alleged that these statements are concocted and fabricated . It is submitted that strangely the statements were recorded by PW1 DCP Balaji Srivastava 114 in the office of ACP Southern Range, Operation Cell, Lodhi Colony whereas he had his own office at IP Estate, PHQ, New Delhi and it is submitted that there is no material on record as to how the venue for recording of the statement was decided by the DCP and communicated to the ACP for bringing the accused there. It is submitted that it was mandatory on the part of the officer recording the confessional statements to explain in writing to such person making a confession that he was not bound to make confessional statement but in the present case no such warning was given in writing to the accused persons by PW1 and the entire format is typed and even the alleged consent of the accused is not hand 115 written by the accused himself but a typed format and as such the wordings of both the confessional statements are exactly the same. It is further submitted that even the typed explanation is not signed by the DCP which raises doubt about its authenticity. There are material contradictions in the disclosure statement of the accused persons and the confessional statements as in the confessional statements both the accused allegedly stated that two persons contacted them and delivered the hawala money at South Extn on 2/1/02 whereas in the disclosure statement recorded on 15/1/02 it is alleged that only one person delivered the hawala money at South ExtnI. It is further submitted that before recording the 116 confessional statement the accused persons were not granted time to reflect whereas it is settled law that accused must be given an opportunity to rethink about the consequences of making confessional statement. It is further submitted that no warning was given to the accused persons in writing that they were not bound to make any confession and if they make the confession the same can be used during trial against them. It is submitted that there is no explanation as to why the DCP chose to record confession in the office of ACP Southern Range Operation Cell, Lodhi Colony whereas he had his own office at IP Estate, Police Headquarter. It is further submitted that infact no confession was 117 made by the accused persons and the signatures were obtained of the accused persons on a prepared confessional statements which are verbatim same, including coma and fullstop except the alleged introduction of both the accused. It is submitted that there are discrepancies in the disclosure statements and their confessional statements regarding the number of persons who contacted them and delivered hawala money on 2/1/02. It is further submitted that accused persons were never produced before the ACMM for confirmation of their confessional statement as after 12:30pm on 25th January due to Republic Day Celebrations. On 26th January every year the complex of Patiala House 118 Courts is sealed by the security forces. It is submitted that since PW5 Sh. VK Maheshwari, the then ACMM could not identify the accused persons it supports the defence version that accused were never produced before him.
(ii) It is further submitted that the Steno ASI Rajeev Sharma who allegedly typed the confessional statement has not been examined in the present case to prove the recording of the confession.
(iii) It is further submitted that even otherwise the confessional statements made by the accused persons cannot be used against the coaccused facing trial alongwith them as per the provisions of Sec. 32 POTO. 31(i) Regarding rukka and FIR it is 119 submitted that the prosecution has failed to prove as to who prepared the rukka as PW8 SI Govind Sharma testified in his chief examination that he dictated the rukka to one of the team members and then gave the same to ASI Anil Tyagi for registration of FIR whereas ASI Anil Tyagi testified that SI Govind Sharma prepared the rukka and similarly SI Sharad Kohli testified that when he reached the spot SI Govind Sharma had almost prepared the rukka. It is submitted that the person who wrote the rukka is neither cited nor examined as prosecution witness.
(ii) The defence counsel has further pointed out that on the last page of rukka on the left side there is a note written 120 which is mentioning the number of the FIR once it was registered whereas the DD Number below the same is missing which clearly shows that the document was left blank for any kind of manipulation and lateron the police officials forgot to fill the same. It is submitted that DD Number is the first step in registration of the FIR and if proper procedure had been followed DD No. could never have been missed by PW9 HC Surat Singh duty officer. It is submitted that Col. No. 3(c) of Page 1 of the FIR the DD No. is written in different Ink and in different handwriting which leads to the inference that both rukka and FIR are manipulated. It is further submitted that the names and addresses of the accused persons 121 in Col. No. 7 of the FIR were also not filled in which was mandatory to be filled.
32. Regarding the allegations of hawala transactions against the accused persons it is submitted that prosecution has failed to produce any evidence on record that the accused persons had received money through hawala transaction. It is submitted that accused Dilip Bhai and Rajesh Bhai from whom the accused persons had received hawala money were discharged by POTA Review Committee and accused Mehboob Karim Merchant was discharged by this court at the stage of charge as such there is no evidence on record that the accused persons had any link with the hawala transactions.
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33. It is further submitted that there is no evidence on record that the accused persons belonged to LeT or were involved in any anti national or terrorist activity. It is also submitted that prosecution has failed to prove that accused persons were receiving hawala money or explosives under the instructions and directions of Abu Amaar, Distt. Commandor, LeT , J & K as the hawala transactions were allegedly done on 7th, 11th and 14/1/02 whereas Abu Amaar was killed in an encounter by the army on 9/1/02 and that this fact was confirmed by DW11 HC Bashir Ahmed who produced FIR No. 02/2002 dtd.9/1/02 registered with PS Achabal, J & K and also produced a letter Mark A written by Major Sanjay Nagpal 123 confirming that the militant killed on 9/1/02 in an encounter was Abu Amar Distt. Commandor, LeT J & K. Regarding non examination of PW SI Hridaybhushan it is submitted that in the statement U/s 161 Cr.PC of SI Hridaybhushan the name of the person who was hawala operator was given as Deepak Bhai whereas the name was lateron changed to Dilip Bhai as mentioned in the disclosure statement of the accused persons. It is further submitted that the name of the person delivering RDX at Jama Masjid on 14/1/02 is mentioned as Nasir in the statement of SI Hridaybhushan whereas in the disclosure statement of the accused persons it is mentioned as Nisar. It is submitted that the prosecution did not 124 bother to trace out the alleged person who delivered RDX on 14/1/02 and if there had been any such person or any such delivery the Spl. Cell would certainly have gone to spot to make enquiry and prepared siteplan at the pointing out of Mohd Afsal or Adil who had allegedly received the said consignment.
34. In reply to the arguments of the defence the prosecution has also filed written arguments claiming that the fax message relied upon by the accused persons has not been proved to have been received in Delhi to the addressee . Besides, whether the fax was sent at 10:38 AM or PM has not been explained in the defence evidence. Further that if the parents of the accused 125 persons had knowledge that they were picked up on 2 or 3/1/02 why they kept silent for so many days to allow the police to arrest them falsely. It is submitted that the arguments of the defence counsel that fax was sent by Chairman of Legislative Assembly could not be false cannot be accepted as he was holding a political post and was representing the area where the accused persons were residing and the accused persons in their statement U/s 313 Cr.PC stated that they were affiliated to National Conference. She has further assailed the argument of the Defence Counsel regarding sending of fax Ex.DW13/B while drawing the attention of the court towards the testimony of DW13 who 126 produced the extract of Dispatch Register Ex.DW13/D and stated during cross examination that in the letter Ex.DW13/A the date of the letter addressed to the Hon'ble Chief Minister Jammu & Kashmir is mentioned as 14/1/04 (which is the fax allegedly sent by the Chairman Legislative Assembly to the Hon'ble Chief Minister, Jammu & Kashmir ) and its corrigendum Ex.DW13/E was issued in the month of September 2004. It is further submitted that as per the statement of DW13 the fax was sent at 10:30 AM and was received at 10:38 AM at New Delhi, the gap of eight minutes between sending and receiving of fax is not explained as the fax would be received at a particular place at the same time when it is 127 sent. It is further submitted that the contention of the defence counsel that accused were arrested on 2/1/02 is belied by the fact that the cell ID of Mobile Number 9811336055 on 7 & 8/1/02 was of Kotla Mubarakpur area as testified by PW6 Rajeev Pandit Nodal Officer, Sterling Cellular Ltd and the said mobile was recovered at the instance of accused Adil from the room No. 3 at Karan Hostel on 14/1/02. Regarding the siteplan Ex.PW8/DA it is submitted that PW15 Ram Kumar has clearly stated that Karan Hostel is being run in 1804/2 Kotla Mubarakpur which is at the back of the house No. 1804/1 which is shown in the siteplan. It is submitted that due to oversight incomplete staircase is shown in 128 the siteplan. Further that accused Bilal in his statement U/s 313 Cr.PC has not denied that the Karan Hostel is not situated in property No 1804/2 Kotla Mubarakpur. It is further submitted that all the prosecution witnesses have proved the recovery of incriminating material from the possession of accused persons and for the mere reason that PW15 Ram Kumar was declared hostile , the testimony of the police officials cannot be thrown away as unbelievable.
35. Regarding the argument of the defence counsel that after rukka was sent for registration of the case, one team member was sent for collecting weights and measures from office is incorrect as the witness PW8 SI Govind Sharma had stated 129 that one team member had left the spot during their period of stay at the spot for collecting weights and measures but he did not stated that these were called for after sending rukka.
36. Regarding the date of purchase of mobile recovered from R. No. 3, Karan Hostel it is submitted that it is due to mistake the year of purchase is mentioned as 2001 instead of 2002. It is submitted that the mobile was seized from the room of the accused after the accused persons during interrogation disclosed that the mobile was purchased for purpose of communication for carrying out terrorist activities and it is only then the proper search of the room was carried out and it was recovered at the 130 pointing out of accused Mohd. Adil. Regarding the date of arrest mentioned as 14/1/02 on the top of the arrest memo and as 15/1/02 in the column date of arrest, it is submitted that the FIR was lodged on 14/1/02 and arrest was made on 15/1/02. In answer to the argument of the defence counsel that sanction for prosecution of accused persons under POTA was not granted by the LG or he had not applied his mind it is stated that though LG did not make any observation in the file but it is the officer concerned who was dealing with the file who made the LG understand the material against accused persons and only after the appraisal of available evidence the Hon'ble LG had put his signatures or initials 131 for grant of sanction.
37. Regarding the disclosure statement recorded by SI Sharad Kohli under POTO it is submitted that till that time POTO was not invoked but since the offences under POTO were made out on the basis of disclosure of accused SI Sharad Kohli added the relevant sections of POTO and then handed over the further investigation to ACP Rajbir Singh.
38. Regarding the confessional statements recorded by PW1 DCP Balaji Srivastava it is submitted that all the relevant provisions of law were complied with by the DCP.
39. Regarding hawala transaction it is submitted that in view of the call details of 132 the mobile phone recovered from R. No. 3, Karan Hostel the accused persons were in contact with Dilip Bhai and had infact collected huge money for purpose of terrorism. It is further submitted that SI Hridaybhushan was dropped by the prosecution since the other witnesses on the same facts were already examined.
40. Regarding the argument of the defence counsel that there is no evidence on record that accused persons were working for LeT a banned and terrorist organisation, it is submitted that there is no registered office of LeT where the registration of members is made or list of its members is maintained therefore to prove that a person is member of terrorist organisation is his 133 conduct. The contention that because there was no previous involvement of the accused persons it cannot be inferred that they were not militants. It is submitted that as per the FIR the information received was that on the directions of PAK ISI Militant organisation, LeT hatched a conspiracy to disrupt the Republic Day celebrations by conducting explosions in Delhi and for this purpose large quantity of explosive was being sent to Delhi and also that large amount of money was being channeled through various hawala transactions for further use by militant organisations. It is submitted that the recovery of Rs.34.90 lakhs and huge quantity of RDX from the possession of accused persons has been 134 proved by the evidence led by the prosecution and that as per confessional statement of accused Mohd Afsal and Adil Nazir Keen, Abu Amaar had met the accused persons prior to 31/12/01 and thereafter it was some PAK contact of Abu Amaar who was giving them directions. She has drawn my attention towards the order of my Ld. Predecessor dtd. 15/1/02 when all the accused were produced before the court after their arrest and during enquiries made by the court they stated that they were acting under the command of one Amaar who claims to be Commandor of LeT and his commands cannot be turned by anybody living in the area. It is submitted that if the accused had not been apprehended and 135 recoveries had not been effected from their possession, a huge loss of lives and properties might have been there. It is submitted that in the ordinary course a person do not carry explosive materials, detonators, huge amount of money etc except for carrying out terrorist activities.
41. In the light of submissions made by both the parties, the relevant provisions of law and the evidence on record led by both the parties is to be appreciated. All the accused have faced trial for the offences punishable U/s 121A and 122 IPC. All the accused have further faced trial for the offence punishable U/s 3(b) 3(5) r/w Sec.20 POTA , 4(b) POTA, Sec. 4(b) & 5 Explosive Substance Act. Besides accused Mohd. Afsal 136 and Adil Nazir Keen have faced trial U/s 22 (3) r/w Sec. 22(5) POTA.
42. As per the provisions of Sec. 121A any person whoever within or without India conspires to commit any offence punishable U/s 121 IPC or conspires to overawe by means of criminal force or show of criminal force, the Central Government or State Government is liable to be punished with imprisonment for life or with imprisonment of either description which may extend to 10 years and shall also be liable to fine.
43. To attract the provisions of Sec. 121A the onus was on the prosecution to prove that the accused persons conspired to wage war against the Government of India or attempted to wage such war or abetted 137 the waging of such war as per the provisions of Sec. 121A IPC.
44. The explanation to the Sec. 121A IPC further makes it clear that to constitute conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof.
Similarly, collection of men, arms or ammunition or otherwise any preparation to wage war with the intention of either waging or being prepared to wage war against the Government of India by a person is liable to punishment i.e imprisonment for life or imprisonment of either description for a term not exceeding 10 years and shall also be liable to fine.
45. To attract the provisions of Sec. 138 122 IPC the onus was on the prosecution to prove that the arms and ammunitions found in possession of accused persons were preparations to wage war against the Govt. of India.
46. The object of the Prevention of Terrorism Ordinance 2001 promulgated by the President on 24/10/01 was the prevention of terrorist activities and to deal with the terrorist activities. The Ordinance obtained the force of Act with the assent of the President on 28/3/02 as the terrorist attack on Parliament House on 13/12/01 and the prevailing circumstances rendered it necessary for the President to promulgate the prevention of (second) ordinance 2001 on 13/12/01 with a view to give continuity 139 to the prevention of terrorism ordinance 2001 promulgated on 24/10/01. Under the prevention of terrorism Act 2002 all the accused have been charged with the offences referred above.
47. To hold the accused guilty of committing a terrorist act U/s 3(1)(b) POTA the onus was on the prosecution to prove that
(i)the accused persons were or continued to be member of an organisation declared unlawful under the unlawful activities prevention Act 1957,
(ii)or voluntarily did any act aiding or promoting in any manner the objects of such association and ,
(iii)in either case were in possession of any 140 unlicensed firearm, ammunition, explosive or other instrument or substance capable of causing mass destruction and ,
(iv)commits any act resulting into loss of human life or grievous injuries to any person or cause significant damage to any property,
48. Similarly to attract the provisions of Sec. 3(5) POTA it was for the prosecution to prove that the accused persons were members of a terrorist gang or a terrorist organisation which is involved in terrorist acts.
The explanation to Sec. 3(5) clarifies that for the purpose of SubSec. 5 the terrorist organisation means an organisation 141 which is concerned with or involved in terrorism.
49. All the accused persons were further charged and have faced trial U/s 4
(b) POTA. To attract the same, again the onus was on the prosecution to prove that the accused persons were found in unauthorised possession of bombs, dynamites or hazardous explosive substance or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area whether notified or not to hold them guilty of terrorist act.
50. Sec. 20 POTA makes membership of a banned terrorist organisation by any person an offence.
51. A person commits an offence 142 punishable U/s 22 (3) r/w Sec. 22(5) if he provides money or other property and knows or has reasons to suspect that it will or may be used for the purposes of terrorism and is liable to be punished.
52. All the accused persons have further faced trial U/s 4(b) and Sec. 5 of Explosive Substances Act.
53. As per Sec. 4(b) of Explosive Substance Act any person who unlawfully 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 143 irrespective of the fact explosion does or does not take place and whether any injury to person or property has actually been caused or not is liable to be punished.
54. Similarly, U/s 5 of the Explosive Substance Act, 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 he is liable to be punished.
55. In the present case, as deposed by PW19 Inspt. Mohanchand Sharma in the last week of December 2001, a secret 144 information was received through Central Intelligence Agency that some members of LeT planned to strike around Republic Day Celebrations to disrupt the Republic Day and also that huge amount from hawala route was likely to reach terrorists. To develop the information various raids were conducted at Delhi. On 14/1/02 a specific information was received by PW19 Inspt. Mohanchand that some militants of LeT were staying at Karan Hostel, KM Pur and were possessing explosive substance and hawala money. While observing secrecy DD No.12 Ex.PW19/A was recorded and while forming a raiding party, trap was laid and two accused persons namely Mohd. Afsal and Adil Nazir Keen were apprehended at 145 the gate of Karan Hostel who both were carrying a bag each and simultaneously the R. No. 3 in the hostel was raided and two accused Bilal and Ansar were apprehended and huge recovery of RDX i.e around 8 kg and hawala money of Rs. 34.90 lakhs and four electronic detonators was effected from their possession. The defence taken by the accused persons is that they had come to Delhi on 30/12/01 and were lifted by the police on 2/1/02 and were falsely implicated in this case on 14/1/02.In defence they examined 15 DW's as referred above however none of the witnesses were able to create any doubt about the apprehension of the accused persons on 14/1/02. They have failed to produce any cogent evidence 146 through the testimony of 15 DW's that the accused persons were actually apprehended on 2/1/02 without any rhyme or reason by the police or that no recovery was effected from their possession and that the entire case property was planted upon them. It is pertinent to mention that the RDX recovered from the accused persons were not few grams but more than 8kg in weight which could never be planted. Similarly it is not digestible that a sum of Rs.34.90 lakhs could be planted upon the accused persons by the investigating agency, particularly when it is not the case of the defence that the police had any enmity with them. Even assuming that the police had enmity with them or had any reason to falsely implicate, they 147 would not plant upon them Rs.34.90 lakhs or more than 8 kg of RDX and 4 live detonators. False implication if at all could be with a minimal or lesser quantity of the RDX and the money. From where the investigating agency would arrange 8 kg RDX, 4 detonators and Rs. 34.90 lakhs has not been explained by the defence. The defence witnesses DW1 Arvind Barot and DW2 Shailesh who were employed in the office of M. Ramesh & Co., have not deposed at all about the apprehension of the accused persons on 2/1/02 but have stated that accused persons had not accompanied the government officials who raided their office on 15/1/02. DW3 Bhaqtawar Zaman the elder brother of 148 accused Ansar testified that he was employed at Ludhiana during the relevant period and had received telephone call on 31/12/01 from Ansar that he had come to Delhi for business and after spending 23 days in Delhi would go to him at Ludhiana, if possible. On 3/1/02 he enquired about Ansar while giving a telephone call at his house in Anantnag and was told that he had not reached home. On 4/1/02 he made a telephone call at Delhi to DW9A Motilal Nathu and to Manzoor an employee of Goodluck roadways who told him that Ansar had visited them on 1/1/02 and 2/1/02 and then perhaps left for home. DW3 Bhaqtawar Zaman further stated that on 5/1/02 he again rang up his house and was informed 149 by his family that one Mohd. Ashnaf Sheikh had called his phufi on telephone in Anantnag that Bilal, Ansar and two other boys were picked up by the police on 2/1/02. The said Mohd. Ashnaf Sheikh has not been examined by the accused persons in defence nor it is disclosed as to who is he and how he was known to the accused persons nor any details of Mohd. Ashnaf such like his parentage, address, profession has been brought on record. It is also not on record as to how this Mohd. Ashnaf came to know that the accused persons were apprehended by the police on 2/1/02. Even the particulars of so called phufi of Mohd Ashnaf have not been brought on record nor she has been cited or examined 150 as a defence witness. Even the parents of accused Bilal and Ansar who were informed by phufi of Mohd Ashnaf Sheikh about the apprehension of accused persons on 2/1/02 have not been examined. There is no evidence on record that any such phone call was made by this witness DW3 Bhaqtawar to Karan Hostel on 5/1/02. No call record to that effect has been produced in the court. It has not even been disclosed that on which telephone number the witness contacted someone at Karan Hostel. As such the testimony of DW3 is of no help to the accused persons. Even the conduct of DW3 who claims himself to be the elder brother of accused Ansar does not inspire credence as, as per his statement he came 151 to know on 5/1/02 that his brother accused Ansar had been apprehended by the police on 2/1/02 but he did not come to Delhi to make enquiries or made any efforts to trace them or for the release of his brother who was allegedly, falsely apprehended by Delhi police. It is also important to note that there is a glaring discrepancy in the testimony of DW3 as he deposed in his chief examination that he took the telephone number of Bilal from his family whereas in his cross examination he stated that he used to talk to Bilal at Karan Hostel and he had his telephone number. As such his entire testimony is concocted.
56. So far DW4 Gulam Hasan Butt is concerned who claimed to be neighbourer 152 of Bilal and deposed that accused Ansar was also known to him, has not explained as to why he and others waited till 11/1/02 to approach the Chairman, Legislative Council to seek his intervention in the matter when they had already come to know on 4/1/02 that accused Bilal and Ansar were arrested by the police on 2/1/02. The normal conduct would have been that on getting the news of their arrest , they ought have straight come to Delhi and approached the Special Court or any higher police authority. No parent would wait for 7 days to seek release of their children if they were sure that they were apprehended falsely by police. The conduct of the witness visiting Delhi on 21/1/02 after learning from the TV 153 about the arrest of accused persons clearly depicts that he had no other news on 4/1/02 of their arrest on 2/1/02 by Delhi police, had it been so he would have immediately rushed to Delhi to do the needful. This witness admitted that he was not aware of if any written representation was given to Ex. Home Minister or to the Chairman of Legislative Council regarding apprehension of Bilal and Ansar by Delhi police. If he had gone to Chairman of Legislative Council why he was not aware of that any representation was made in writing. The defence witnesses DW4 Ghulam Hasan Butt, DW5 Gul Mohd. Wani and DW6 Gul Mohd Sheikh who claimed that they came to know about arrest of 154 accused persons on 4/1/02 have not given the source of information who informed them that the accused persons were arrested by Delhi police on 2/1/02.
57. DW7 Arvind Bhai Prajapati, DW8 Bharat Kumar and DW9 Babu Bhai are relating to the firm M . Ramesh & Co and are not relevant qua the present accused persons.
58. Even DW10 Hari Ram Nigam is of no help to the defence as he simply proves the presence of accused Ansar in Delhi on 2/1/02 but he does not prove he was arrested on that day by Delhi police.
59. The other argument of the defence counsel that the case of the prosecution is that the accused persons were receiving 155 instructions from Abu Amar the Commandor of LeT in Anantnag whereas as per the FIR No. 2/02 dtd. 9/1/02 Ex.DW11/A he was killed in an encounter and in case he was killed on 9/1/02 who gave directions on 11/1/02 and 14/1/02 to the accused persons as alleged by the prosecution. The perusal of the confessional statement of both the accused shows that they had been receiving instructions from Abu Amar from time to time for collecting hawala money and explosive substances to cause explosions on the route of Republic Day Parade. Their confessional statements further show that both the accused were given code name 'Nasir ' for the operation and similarly the person from whom they had to collect 156 explosive from Jama Masjid was given code name 'Nisar' , as such it appears that the terrorists to conceal their identity were operating through code names and as such whether Abu Amar was code name or real name of a person who was acting as Commandor LeT Anantnag has not been proved on record either by the prosecution or by the accused persons nor it is proved on record through the FIR Ex.DW11/A that Abu Amar was killed in encounter as in this FIR the name of Abu Amar is not mentioned though an encounter of Army with LeT / militants does find mention in the said FIR. In the circumstances, neither the prosecution has brought any material on record that the accused persons were 157 receiving instructions from any person namely Abu Amar the Commandor nor the accused persons had proved on record that such person had died on 9/1/02.
60. Regarding DW13 Sanjay Pandita who deposed that fax Ex.DW13/B was sent to the then Chief Minister Sh. Farooq Abdullah of J & K at New Delhi Kashmir House on 14/1/02 at 10:30am on telephone No. 4611506 and that it was received at New Delhi at 10:38am on the same day, no witness has been examined from Delhi to prove that the fax Ex.DW13/B was received on telephone No. 4611506 at J& K House, 5, Prithviraj Road, New Delhi. Besides the time of sending fax is given by DW 13 as 10:30am and he claims that it was received 158 at New Delhi on 10:38am, however the period of 8 minutes between 10:30 10:38 am has not been explained as to how it was consumed since the fax issued at a particular time is immediately received at the other end at the same time. So it is not possible that a fax sent at 10:30am would be received at 10:38am.
61. So far DW14 Abdul Rashid Dar is concerned the perusal of his statement shows that neither he prepared the fax nor sent it personally. It is pertinent to mention that in his chief examination he claimed that the parents of accused Mohd. Afsal, Adil Nazir Keen and Bilal Ahmed, besides brother of accused Ansar Ahmed Dar met him whereas in the fax Ex.DW13/B the 159 name of accused Ansar does not find mention instead the name of one Anaitullah is mentioned alongwith the names of other three accused. This itself raises doubt about the authenticity of the fax. It is further pertinent to mention that neither PA who drafted the fax nor the Secretary who sent the fax to Delhi to the Chief Minister of J & K have been examined in the witness box. Besides a receipt Ex.DW13/C shows the time of sending fax as 10:37 and received as 10:38 but AM or PM is missing from the receipt, as such it cannot be presumed that fax was sent at 10:37AM and was received in Delhi at 10:38AM, it is quite possible that if at all the fax was sent it was at 10:37 PM and received at 10:38PM i.e after the 160 apprehension of the accused persons alongwith incriminating articles. The defence has further failed to prove on record that telephone No. 4611506 was installed at J & K House, 5, Prithvi Raj Road, New Delhi on 14/1/02 nor produced any witness in defence to prove that fax Ex.DW13/B was received at the above telephone number or that the fax was actually installed on the aforesaid number at the address given above. The testimony of DW13 Sanjay Pandita that Parvez Diwan the IAS officer in Jammu and posted as Resident Commissioner, J&K House, 5, Prithviraj Road, New Delhi on 14/1/02, is not supported by any official record nor said Sh. Parvesh Diwan the IAS Officer has been examined in 161 the witness box to depose about the receipt of the aforesaid fax. It is further pertinent to mention that there is also no evidence on record led by the defence that on 14/1/02 the then Chief Minister, J & K State was in Delhi.
62. It is strange to note that the parents and brother of none of the accused persons who as per defence had approached the Chairman, Legislative Council in J & K, have appeared in the witness box to depose that they had information on 4/1/02 that accused persons were lifted by Delhi police on 2/1/02 and they approached the Chairman on 11/1/02 and thereafter on 14/1/02. As such it has not been proved on record that any such representation was 162 made by the parents of the accused persons to the Chairman, Legislative Council so as to give rise to the occasion to send fax to the Chief Minister, J & K who as per their claim was in Delhi on 14/1/02. Besides nothing has come on record as to what efforts were made by the parents of accused persons during the period from 4/1/02 when they came to know about the apprehension of the accused persons by Delhi police till 11/1/02 when they allegedly approached DW14 Abdul Rashid Dar, Chairman Legislative Council. It is not digestible that the parents of the accused persons would keep quiet for 7 days without taking any action against the concerned police officers who had allegedly apprehended them on 163 2/1/02. As such the defence led by the accused persons is of no help to them. It is pertinent to note that fax finds mention that J & K State, CID Cell, Delhi was requested to trace out the boys mentioned in the fax but no such evidence has been summoned or produced from the CID nor it has been brought on record as to when CID was made any such request to look into the matter and who made it. Besides it is pertinent to mention that the fax does not find mention of the name of accused Ansar but instead Anaitullah Dar.
63. On the other hand the prosecution in view of the evidence led on record has proved beyond reasonable doubt that on 14/1/02 accused Mohd Afsal and Adil Nazir 164 Keen were caught outside Karan Hostel holding one bag each respectively and accused Bilal and Ansar were apprehended from inside the R.No. 3 of the hostel. The argument of the defence counsel that accused persons were apprehended by Delhi Police on 2/1/02 has no force since the defence witnesses produced by the accused persons have miserably failed to prove the said plea in view of the discussion above. The argument of the defence counsel that the only public witness joined in the investigation was PW15 Ram Kumar the owner of the Karan Hostel and that he was declared hostile by the prosecution and did not support the prosecution case to the effect that the accused persons were 165 apprehended on 14/1/02 or that two of the accused namely Mohd. Afsal and Adil Nazir were caught at the gate of Karan Hostel and two other accused were apprehended from inside the room. It is submitted that this witness deposed to the effect that all the four accused were apprehended from R.No. 3 of Karan Hostel. The aforesaid plea has no force when PW15 Ram Kumar had not denied in clear terms that the accused persons were apprehended on 14/1/02 but he simply stated that it was sometime in January 2002. Other prosecution witnesses have categorically stated that all the accused persons were apprehended on 14/1/02 and there is no reason to disbelieve their testimony as there is nothing on record in 166 defence of the accused persons that the police officials were enemical towards them or had any reason to falsely implicate them. The fact that PW15 Ram Kumar was declared hostile and did not support the prosecution case in clear words by itself does not lead to the conclusion that all the prosecution witnesses deposed falsely and that the accused are innocent. It is in the natural course of events that an ordinary person would never feel comfortable while deposing against the terrorists as he is scared of his life and of his family. There can be so many reasons for his resiling from his earlier statement. As such merely he was declared hostile does not give any benefit to the accused persons. This witness 167 during cross examination by the Spl. PP has not denied that the incident had taken place on 14/1/02 but on the other hand he stated that he was not sure if police had come to him on 14/1/02 and he stated that he only remembers it was in the month of January 2002. In view of his said statement no presumption can be drawn that the accused persons were apprehended by the police on 2/1/02. Particularly when this witness has corroborated / supported the prosecution case on the other particulars such like the time when the police approached him ie around 2 / 2:30pm and enquired from him about accused Bilal living in his hostel and thereafter the police again approached him at 9 /9:30pm when he accompanied the 168 police to the room of accused Bilal. It is pertinent to mention that the Ld. Prosecutor had put a specific question to the witness to the effect that Inspt. Mohanchand Sharma had visited him on 14/1/02 at about 2pm and enquired from him if some Kashmiri's were living in his hostel and he informed that Bilal was his tenant and three more Kashmiri's were staying with him. To this he replied that he had told that Bilal was his tenant and other Kashmiri's used to visit him. However, he did not deny that Inspt. Mohanchand Sharma had come to him on 14/1/02 at about 2pm for making enquiries. He also admitted the fact that the police had started keeping watch around the hostel from 2:30/3pm and had spread around the 169 hostel. He also admitted that he remained with those police officials though for sometime and then went to his house. It is pertinent to mention that this witness identified his signatures on Ex.PW8/A and PW8/B the seizure memos with regard to the recovery of incriminating articles from accused Mohd. Afsal, Adil Nazir, Bilal Ahmed and Ansar Ahmed. He also admitted that he had studied upto Class IX and that he could read Hindi. Perusal of the record shows that both these seizure memos were written in Hindi language. Regarding the question put by the Spl. PP that recovery of RDX, detonators and currency notes from the bags of all the accused persons was made in his presence though he stated that recovery was 170 not made in his presence as he was standing outside the room but he admitted that police had told him about the recovery of Rs. 3435 lakhs and RDX from the accused persons. It is not the case of the defence that when the police officials entered R.No. 3, Karan Hostel they were possessing some bags or holding some packets containing some currency notes or RDX or other material which was lateron planted by them upon the accused persons. Not a single question was put to PW15 Ram Kumar during cross examination by the defence that if he was told by the police that a sum of Rs. 34/35 lakhs and RDX was recovered from the accused persons did he see that material himself or did he ask the 171 police officials to show the same to him if it was not recovered in his presence. Nor there is any suggestion to the witness or any question put to him that when police officials entered R. No. 3 they were possessing some material with them so as to lead to any presumption that the RDX and the money was planted upon the accused persons. Besides, considering the huge amount of currency notes and the RDX recovered from the possession of accused persons by no stretch of imagination it could be planted upon the accused persons. There is no also evidence on record that the police officials had any enmity with the accused persons or had any reason to falsely implicate them. PW15 Ram Kumar 172 has nowhere stated as to why he had signed the seizure memos without going through the contents of the same particularly when he could read Hindi language. The conduct of the witness shows that he was scared to depose against the accused persons. The argument of the defence counsel that this witness has admitted that on 13/3/02 the police again visited the hostel and collected the articles lying in R.No. 3 and if he could depose so correctly why would he depose falsely about the date of incident 14/1/02. It is pertinent to mention that on 14/1/02 the incriminating material was recovered from the possession of accused persons which could landup the accused persons behind the bars whereas on 173 13/3/02 no such recovery was effected from R.No. 3 of the hostel. On the other hand the conduct of the witness rather supports the prosecution version that if he could remember the date of 13/3/02 why he could not remember the date 14/1/02 or 2/1/02 as claimed by the defence, on which date they were allegedly apprehended.
64. The other argument of the defence counsel that in view of the testimony of PW8 SI Govind Sharma during cross examination that ''Anil Tyagi had left the spot for registration of FIR and one team member had left the spot during this period for collecting weights and balances and that Anil Tyagi had come back at around 1 / 1:15am in the night after registration of the 174 FIR and weights and balances were brought from the office'', it is submitted by the defence counsel that when SI Anil Tyagi had left with the rukka for registration of FIR at that time weights and balances were not available with the raiding party then how the alleged recovered RDX was weighed by SI Govind Sharma or any other member of the raiding party has not been explained by the prosecution. However I find no force in the aforesaid argument, as to appreciate the few lines referred above deposed by PW8 his entire cross examination has to be perused and appreciated and these few lines should not be read in isolation. The perusal of the statement of SI Govind Sharma shows that 175 he was cross examined by the defence counsel to the effect that for how much time he remained at the spot and it is in answer to the said question he replied that he stayed there upto 4am and he further stated that no other officer came at the spot during that period except the team members who were already there and Mr. Sharad Kohli. He further stated that Anil Tyagi had left the spot for registration of the FIR and one team member had left the spot during this period for collecting weights and balances. The perusal of the entire cross examination shows that PW8 SI Govind Sharma was explaining as to who had arrived at the spot and who had left the spot during the period of his stay at the 176 spot till 4am. His statement in cross examination cannot read to mean that some team member had left the spot for collecting weights and balances after SI Anil Tyagi went to the PS for registration of the case. The defence counsel had tried to confuse the witness by putting such questions not in sequence so as to earn benefit. However it is the duty of the court to go through the evidence and find out the truth. It is pertinent to mention that the defence counsel cleverly had put a question to the witness at what time SI Anil Tyagi had come back to the spot after registration of the FIR to which he replied that he came back at 1:15am and at the same time the defence counsel had put another question to 177 the witness from where the weights and balances were brought to which he replied that these were brought from the office. By putting questions in irregular manner the defence counsel now wants the court to believe and read the answers given by the witness in the sequence which suits best to the accused persons. As such the argument of the defence counsel that the weights and balances were not available with the raiding party and these were summoned subsequent to sending of rukka is of no consequence.
65. Another argument of the defence counsel is that the siteplan Ex.PW8/DA is defective as the place of recovery in the siteplan is shown as 1804/1 Parshadi Gali, Kotla Mubarakpur whereas as per the 178 prosecution case recovery was effected from 1804/2. Again there are no merits in the aforesaid argument as it is the case of the prosecution that recovery was effected from Room No. 3 of Karan Hostel which is not even disputed by the defence and the Karan Hostel is identified by its name itself and is situated on Property No. 1804 irrespective of the fact it falls in property No. 1804/1 or 1804/2.. Moreover the perusal of the siteplan Ex.PW8/DA shows that the main gate for entry to Karan hostel is shown at point A1 which falls in the premises No. 1804/1 from where the stairs are leading to the Karan Hostel which is at the back of H. No. 1804/1 so the contention of the defence counsel that in the siteplan the place of recovery is 179 shown as 1804/1 is incorrect. From the siteplan it is clear that the Karan Hostel is not shown in the premises 1804/1 but in the adjoining portion which 1804/2 and is on the left hand side of 1804/1 whereas on the right hand side there is a vacant plot and then 1804/4. It is pertinent to mention that in the seizure of copy of telephone bill and police verification form also accused Bilal Ahmed is shown as tenant of premises No. 1804/2 and similarly, in the seizure memo of mobile Ex.PW16/A the place of recovery is shown as R. No. 3, Karan Hostel, 1804/2 and even in their confessional statements both the accused Mohd. Afsal Kumhar and Adil Nazir Keen had given the address of Karan Hostel as 1804/2. Besides PW10 HC 180 Babulal produced the tenant verification record pertaining to accused Bilal Ahmed and the address given is 1804/2. As such I find no discrepancy in the siteplan Ex.PW8/DA and it is proved on record that the recovery was effected from the possession of all the accused in R. No. 3, Karan Hostel, 1804/2 Parshadi Gali, Kotla Mubarakpur. The argument of the defence counsel that in the siteplan property No. 1804/2 is shown as vacant plot is of no consequence as had it been a vacant plot it would have been specifically mentioned in the siteplan as has been done in the case of a plot falling between 1804/1 and 1804/4.
66. The argument of the defence counsel is that even the FIR was 181 manipulated as Col. No. 7 was not filled in with the names of the accused persons nor the DD No. was mentioned on the rukka. However, the names of the accused persons are mentioned in the rukka as well as in the body of the FIR , as such non mentioning of the names of the accused persons in Col. No. 7 of FIR Ex.PW9/A is of no consequence though it definitely leads to the conclusion that Duty Officer was inefficient or was negligent in performance of his duties. So far the writing of DD No. 14A in Col No. 3(c) of the FIR in different ink and different person as alleged by the defence counsel is concerned is of no consequence as during cross examination of PW9 he categorically stated that DD No. 14A 182 was written in his own hand after finishing the FIR and the ink was different because ink of earlier pen was over. The defence has failed to produce any evidence including of expert witness that DD No. 14A was not in the handwriting of HC Soorat Singh.
67. The contention of the defence counsel that no public witness was joined in the proceedings and that their non joining creates doubt in the story of the prosecution as the area where alleged recovery was effected was highly populated, in my opinion is of no consequence particularly when an independent witness PW15 Ram Kumar was already with the police at the time of apprehension and recovery from the accused persons therefore there was no 183 need for any other public witness. Moreover the defence counsel has failed to point out any glaring discrepancy or contradiction in the testimony of official witnesses so as to hold them unreliable. Merely for the reason that PW15 Ram Kumar has not fully supported the prosecution case for this reason the testimony of official witnesses who are otherwise found reliable cannot be disbelieved.
68. The argument of the defence counsel that the arrest memo of the accused persons were fabricated as the date mentioned on the arrest memo is 14/1/02 but in the column No. 6 the date of arrest is mentioned as 15/1/02. Again I find this is no discrepancy as the case was registered 184 against the accused persons on 14/1/02 after their apprehension but they were arrested on 15/1/02, hence both the dates appearing on the arrest memo are correct. Though I find force in the argument of the defence counsel that the arrest memos were not got signed from any public witness nor even PW15 Ram Kumar signed the same, however the explanation given by the prosecution is that by the time the arrest memo was prepared PW15 Ram Kumar had left the spot, as such he could not sign the arrest memos and that the relatives of the accused persons were not available to sign the same seems plausible.
69. Regarding recovery of mobile from R. No. 3, Karan Hostel at the instance of 185 accused Adil Nazir Keen, the argument of the defence counsel is that there were about 1015 persons in the room at that time of conducting the raid but none could see the mobile lying on the table and as such its recovery is unbelievable and it was planted upon the accused persons. Again I find no force in the argument as PW17 SI Sharad Kohli who had reached the spot to further investigate the case after recovery of the incriminating articles i.e RDX, currency notes and detonators has categorically stated that one mobile phone Ex. P22 was recovered from inside the room at the instance of accused Adil Nazir Keen which was a Motorola handset and alongwith that one warranty card and one cash memo were 186 also seized vide recovery memo Ex.PW16/A and this witness was not cross examined at all regarding recovery of the aforesaid mobile at the instance of accused Adil Nazir Keen. Therefore now it does not lie in the mouth of defence that it was not recovered from R.No. 3 Karan Hostel at the instance of accused Adil Nazir vide pointing out memo Ex.PW16/A. No doubt the cash memo Ex.PW16/F recovered alongwith the mobile is only bearing the name of Adil and the other particulars are not mentioned but the onus was on the accused to bring some evidence on record that he was not the purchaser of the said mobile phone. However no defence has been led to that effect. The other argument of the defence 187 counsel that the warranty card Ex.PW16/G is bearing the date of purchase as 6/1/01 whereas as per the prosecution it was purchased on 6/1/02 is of no consequence as the warranty card was also recovered at the instance of accused Adil Nazir Keen from R.No. 3 of the Hostel. No doubt the prosecution case to the effect that the said mobile phone was purchased by the accused Adil Nazir in view of his disclosure statement to remain in contact with Abu Amar and PAK Contact has not been proved on record , as no such call has been traced from the call records of the aforesaid mobile. There are only two calls traced out from the aforesaid mobile one was outgoing to telephone No. 0013988310 dtd. 188 7/1/02 and other was incoming call from 0113988310 dtd.8/1/02 . The phone No. 3988310 as referred above was installed at the office of M. Ramesh & Co. However, the call made from his telephone and received on this telephone on 7/1/02 and 8/1/02 further belies the defence of the accused persons that they were apprehended by the police on 2/1/02. The argument of the defence counsel that it was for the prosecution to prove on record as to who was the purchaser of the mobile phone and what was the address and other particulars of the purchaser but in my opinion since the mobile phone was recovered at the instance of Adil Nazir it was within his special knowledge who had purchased the 189 same and for what purpose. The defence counsel through the testimony of PW6 Rajeev Pandit has tried to prove that the mobile phone was planted as he argued that PW6 Rajeev Pandit could not tell the exact date of activation nor could confirm if the said card was a prepaid or postpaid and that he admitted that for supplying sim card they ask customer's name and his proof of residence. It is submitted that if the verification of the particulars of the customer was mandatory how the sim card was activated without any verification of Adil Nazir Keen and his address. However the perusal of the testimony of PW6 shows, he admitted that he was not in the line of sales, so he could not give the details of the 190 activation of the sim card and about the verification of the customers name and proof of residence. He categorically stated that he was working on the administrative side and it was difficult for him to say that at the time of sale of the mobile alongwith sim card the photograph of the customer is asked for or not and if the sales department also asks for verification of signatures of the customers. Regarding the question about activation of the sim card he stated that he will have to check the official records but thereafter the defence did not ask him to produce any such official record to prove its activation. If there was any doubt in the mind of the accused persons, they were at liberty to produce or summon any such 191 record in defence that the mobile phone was not purchased by Adil Nazir Keen or that the sim card was activated not on 6/1/02 or thereafter but prior to that. However no such effort was made by the defence. In the absence of any such evidence led by the defence, in view of the Sec. 114 of the Indian Evidence Act it is presumed that accused Adil Nazir Keen was the purchaser of the said mobile as it was recovered at his instance.
70. The defence counsel has further submitted that as per the prosecution SI Govind Sharma examined as PW8 had recorded the rukka after the alleged recoveries and sealing of the samples and that it was sent to PS through SI Anil Tyagi 192 for registration of the FIR. It is submitted that the evidence led by the prosecution to that effect is full of discrepancies and contradictions. It is stated that PW8 SI Govind Sharma in his chief examination stated that he dictated the rukka to one of the team members and gave the same to ASI Anil Tyagi for registration of the case whereas PW12 SI Sanjay Dutt and PW16 ASI Anil Tyagi stated that rukka was prepared by PW8 SI Govind Sharma and that even PW17 SI Sharad Kohli also stated that when he reached the spot SI Govind Sharma had almost prepared the rukka. It is submitted that in view of the above discrepancies it goes to show that the rukka was neither prepared by SI Govind Sharma nor prepared 193 by anybody else as the person who wrote the same has not been examined as a witness by the prosecution. However again I find no merit in the said argument as PW8 SI Govind Sharma in his testimony categorically stated ''I prepared rukka. I gave dictation and one of the team members wrote it''. As such by saying ''I prepared rukka'', he meant that he gave dictation and got it recorded by someone, as such similar inference can be drawn from the statement of other two witnesses. Besides, rukka has already been proved on record as Ex.PW8/C and this fact has not been rebutted in any manner during lengthy cross examination by the counsel for all the accused. No suggestion was given to the 194 witness that rukka was never prepared at the spot by him or under his instructions.
71. The other argument of the defence counsel is to the effect that as per the testimony of SI Govind Sharma, the seal after use was handed over to SI Sanjay Dutt who admitted having received the seal but nowhere stated as to when the seal was returned. It is submitted that even PW8 SI Govind Sharma, PW17 SI Sharad Kohli and PW18 ACP Rajbir have not stated as to when the seal was handed back to them by SI Sanjay Dutt. It is claimed that no sealing was done at the spot as nothing was recovered, as such there was no seal which was handed over to SI Sanjay Dutt, which he could return to the IO. No doubt as 195 argued by the defence counsel it has not come in the evidence of any of the prosecution witnesses as to when the seal was returned by SI Sanjay Dutt to SI Govind Sharma or to the IO of the case. However, merely for this reason the accused cannot earn acquittal particularly when PW12 was not cross examined at all about the receipt or return of the seal by any of the accused persons. The aforesaid argument of the defence counsel is of no consequence particularly when it is not disputed by the defence that the case property was sealed with the seal of GS and when PW11 HC Pritam Singh MHC(M) has categorically stated that the case property was deposited in the malkhana on 15/1/02 by SI Govind 196 Sharma and the seal was intact. The testimony of PW11 HC Pritam Singh to the effect that the seal on the case property remained intact so long the case property remained in his custody ie 25/1/02 when it was sent to FSL CGO Complex through SI Sharad Kohli for experts opinion has not been rebutted during his cross examination as such even if there is no evidence on record as to when the seal was returned to PW8 SI Govind Sharma it does not effect the prosecution case that the case property from the time it was deposited in the malkhana duly sealed and till it was sent to FSL it remained intact and thereafter PW3 Sh. NB Bardhan and PW4 Sh. AR Arora testified that that the case property was 197 received by them with seals of GS intact. The argument of the defence counsel that in the statement of PW11 HC Pritam Singh recorded U/s 161 Cr.PC only four pulandas are mentioned to have been deposited in the malkhana whereas in his chief examination he has deposed about five parcels and has termed it as a material discrepancy in both the statements and has stated that it leads to the inference that the entire case was manipulated and no recovery was effected from their possession. However, this argument is without any substance. Firstly, for the reason that the witness was not confronted with his previous statement U/s 161 Cr.PC and secondly for the reason , the relevant entry 198 in the register No. 19 maintained in the malkhana shows that five pulandas were deposited on 15/1/02 in the malkhana , relating to this case.
72. It is also argued by the defence counsel that the provisions of Sec. 51 POTO were not complied with by the IO of the case. Sec. 51 POTO reads as follows:
Arrest. (1) Where a police officer arrests a person, he shall prepare a custody memo of the person arrested.
(2)The person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the police station.199
(3)Whenever any person is arrested, information of his arrest shall be immediately communicated by the police officer to a family member or in his absence to a relative of such person by telegram, telephone or by any other means and this fact shall be recorded by the police officer under the signature of the person arrested.
(4)The person arrested shall be permitted to meet the legal practitioner representing him during the 200 course of interrogation of the accused person:
Provided that nothing in this subsection shall entitle the legal practitioner to remain present throughout the period of interrogation.
73. It is pertinent to mention that provisions of POTO were not applicable in the present case at the time of arrest of the accused persons since POTO was not invoked at that time. However, as a precautionary measure the information was sent to the relatives of the accused persons by SI Sharad Kohli PW17 who testified during cross examination that they had sent wireless message through police 201 headquarters to the relatives of the four accused persons. The perusal of the arrest memos of two accused namely Mohd Afsal and Adil Nazir Keen shows that the family members were informed through telephone No. 22097 and the family members of the other two persons were informed through local PS through wireless message. No doubt except mentioning this fact in the arrest memos no evidence has been led by the prosecution that any such information was sent to the relatives of the accused persons. However, this is merely an irregularity committed by the IO of the case and no benefit of the same can be given to the accused persons so far the merits of the case are concerned.
202
74. The defence counsel has further challenged the sanction accorded by the LG for the prosecution of the accused persons under POTO in view of the provisions of Sec.49. It is submitted that Sh. GL Meena, Dy. Secretary Home appeared in the witness box as PW2 and deposed that on receiving the case on 8/3/02 for consideration of sanction U/s 196 of the Cr.PC for prosecution of accused persons U/s 121A/122/123/121 and 120B of the IPC, the file was sent to Lt. Governor of Delhi who accorded his approval after going through the file for prosecution of the accused persons and his sanction order is proved as Ex.PW2/A. He further deposed that he had brought the original file and he 203 communicated the sanction order granted by LG and his signature are at point A on Ex.2/A. He further deposed that another file was placed before him for grant of sanction for prosecution U/s 3/4/5/20/21/22 of POTO and LG after considering the case granted sanction for prosecution. Sanction order as communicated by him is Ex.PW2/B. He further stated that he had brought original file containing approval of LG. It is submitted that during cross examination PW2 Sh. GL Meena admitted that he had prepared the draft of sanction order after going through the document for approval of LG. It is submitted that it was observed by the court during the cross examination of this witness that the file for grant of 204 sanction was perused and approval of LG for grant of sanction was also seen whereas lateron during the course of arguments the original file was summoned from the office of LG and in the said file except one unidentified signatures at a non prominent place without any observation and order , the Hon'ble LG had not written anything regarding approval of the sanction. It is submitted that even the signatures of the LG were not identified by any witness nor any identification was written on the file below the signatures. It is submitted that the LG did not apply his mind before granting sanction. The defence counsel has relied upon an authority reported in 1997 SCC 744 Ramabhai Nathabai Gadhvi Vs. 205 State of Gujarat where it was held by the Hon'ble Supreme court that :
where the sanction is granted without application of mind the sanction was vitiated as granting sanction under TADA must be adopted most seriously and exhaustively then the sanction under other Penal statute. It was further held that as the provisions of TADA are more rigorous and the penalty provided is more stringent, the sanctioning process must be adopted most seriously and exhaustively then the sanction 206 under other Penal statute. It was further held that valid sanction is sine qua non for enabling the prosecuting agency to approach the court inorder to enable the court to take cognizance of the offence under TADA. In the present case Lt.
Governor did not apply his mind while granting sanction thus it is totally against the dictum of Hon'ble supreme Court of India.
75. In view of the argument referred above the trial court record has been perused. Perusal of the record shows that 207 the file pertaining to grant of sanction U/s 196 Cr.PC and U/s 50 POTO was summoned from the office of LG Home Secretary and was perused and it is observed in the ordersheet dtd. 21/4/07 that there was no mention of the fact that Sh. GL Meena was authorised to grant sanction on behalf of the LG and lateron a notification to that effect was placed on record on behalf of the prosecution wherein it is certified that the ''orders and other instruments made and executed in the name of the Lieutenant Governor shall be authenticated by the signatures of the Chief Secretary, or a Secretary, or Special Secretary, or officer on special duty or Director of Enquiries or Joint Secretary or Deputy Secretary or 208 Under Secretary in any of the Departments of the Government of National Capital Territory of Delhi, or the Secretary to the Lieutenant Governor.'' The perusal of the sanction order shows that Sh GL Meena was the Deputy Secretary (Home) at the relevant time. Further the record was summoned from the office of LG and perused. No doubt there is no noting on the file under the signatures of the LG. However his signatures are appearing on the record and presumption is that he had signed the same after applying his mind on the material produced before him for granting sanction. It is further pertinent to mention that at that relevant time there was sufficient material on record for which the sanction 209 was rightly granted for the prosecution of the accused persons U/s 121/121A/122/123 IPC, Sec. 3/ 4/5/20/21/22 POTO by the sanctioning authorities.
76. The other argument of the defence counsel that in the sanction Ex.PW2/B, Sec. 50 POTO is mentioned whereas the sanction was accorded U/s 49 POTO, however is of no consequence as it could be a typographical error. Moreover, this witness was not cross examined to this effect.
77. The other argument of the defence counsel is that the disclosure statement of the accused persons were recorded in clear violation of the statutory provisions of law. It is submitted that the disclosure statements Ex.PW16/B to E were recorded 210 by SI Sharad Kohli after the provisions of POTO were invoked as in the heading of the disclosure statements it is mentioned ''Case FIR No. 18/2002 dtd. 14/1/02, U/s 3,4,5,20, 21,22 POTO, 120B/121/121A/122/123 IPC, 4 & 5 Explosive Substances Act, PS Kotla Mubarakpur, New Delhi''. It is submitted that it was in clear violation of the provisions of Sec. 50 POTO as the investigation under POTO could only be carried out by an officer of the rank of ACP whereas SI Sharad Kohli was only a Sub Inspector. I have gone through the provision of Sec. 50 POTO which are reproduced as follows :
Officers competent to investigate offences under 211 this Ordinance : Notwithstanding anything contained in the Code, no police officer
(a) in the case of the Delhi Special Police Establishment, not below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank:
(b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahmedabad and any other metropolitan area notified as such under subsection (1) of section 8 of the Code, not below the rank of an Assistant 212 Commissioner of Police.
(c) in any other case not relatable to clause (a) or clause
(b), not below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank.
shall investigate any offence punishable under this Oridnance.
78. The perusal of the same shows that the provisions of Sec. 50 POTO were mandatory that investigation under POTO shall not be carried out by an officer below the rank of Dy. Supdt. Police or a police officer of equivalent rank i.e ACP in Delhi. Admittedly in the present case after the 213 provisions of POTO were invoked in the present case, the investigation had to be carried out by a police officer of ACP Rank whereas SI Sharad Kohli was only a Sub Inspector with Delhi Police and as such he could not record the disclosure statements after invoking the provisions of POTO. The argument of the Spl. PP is that the disclosure statement by SI Sharad Kohli was not recorded under POTO but at the time of recording disclosure since provisions of POTO were attracted to the facts he added the relevant provisions in the heading of the disclosure statements. It appears from the record that SI Sharad Kohli was over enthusiastic to write the provisions of POTO in the heading of the disclosure statements 214 even before they were invoked in the present case. As such in my opinion he violated the mandatory provisions of law and his such conduct has vitiated the disclosure statements Ex.PW16/B to E made by the accused persons respectively. At the same time it is pertinent to mention that no recovery of incriminating material was effected in view of these disclosure statements however there were certain facts which were recovered in pursuance of these disclosure statements. Accused Mohd Afsal vide his disclosure statement Ex.PW16/B disclosed that he alongwith his coaccused Adil Nazir Keen, Ansar Ahmed and Bilal Ahmed had collected three consignments of hawala money from Dilip Bhai of Naya 215 Bazaar. M. Ramesh Kumar & Co., 4482, Ist Floor, Dau Bazaar, Cloth Market, Chandni Chowk, Delhi. Similar is the disclosure statement of his remaining three coaccused. However, these disclosure statements do not lead anywhere since coaccused Dilip was discharged by the POTA Review Committee on 10/5/05 and prosecution has failed to lead any evidence on record that the accused persons had collected three consignments of hawala money from co accused Dilip at Naya Bazaar. However since the disclosure statements have not been properly recorded, as such they cannot be admitted in evidence against the interest of the accused persons.
79. Admittedly, as argued by the 216 defence counsel there is no evidence on record led by the prosecution of any hawala transaction which allegedly took place on 7/1/02, 11/1/02 and 14/1/02 except the confessional statements of accused Mohd Afsal and Adil Nazir Keen. However, it is to be seen whether the confessional statements made by the accused persons are reliable and inspire any credence.
80. The argument of the defence counsel that the recording of the confessional statement of accused Mohd. Afsal and Adil Nazir Keen Ex.PW1/A & 1/B respectively by PW1 the then DCP Sh. Balaji Srivastava does not inspire credence appears to be forceful as the prosecution has failed to prove on record any application moved 217 by ACP Rajbir before PW1 Sh. Balaji Srivastava to record the confessional statement of the accused persons. It is stated by PW1 that ACP Rajbir had sent him a request on 22/1/02 that two persons namely Mohd Afsal and Adil Nazir had expressed their willingness for making confessional statement before DCP and he should record the same, so he fixed the date 24/1/02 for recording the confessional statement, however there is nothing on record whether the request on 22/1/02 was made orally or in writing by ACP Rajbir Singh as no application to that effect made by ACP Rajbir Singh to the DCP has been proved on record. Similarly, neither PW1 DCP Balaji Srivastava nor ACP Rajbir Singh 218 PW18 deposed that any application was moved before the DCP on 24/1/02 that the accused persons had expressed any desire to make confession and that he was producing the accused persons before him in view of his instructions dtd. 22/1/02. There is nothing on record in writing that accused persons had made any such desire to make confessional statement. There is also nothing on record as to what prompted DCP PW1 to record the confessional statement of the accused persons in the office of ACP Southern Range, Operation Cell, Lodhi Colony when the DCP had his own office at PHQ and could record the statement of the accused persons in his office. There is nothing on record to show that the DCP 219 had left his office on 24/1/02 and reached the office of ACP at 5pm. No such departure entry from the office of DCP has been proved on record. It is pertinent to mention that under the provisions of Sec. 32 POTA it was the duty of the DCP to ensure that the confessional statement was recorded in an atmosphere free from any fear or pressure. However, in the present case no such step was taken by the DCP. To the contrary the confessional statements were recorded in the office of ACP in whose police custody the accused were at the time of recording of their statement and as such the pressure of police and fear from police by the accused persons cannot be ruled out when they made the confessional statements. It is 220 important to note that the confession was recorded on 24/1/01 immediately after the accused persons were produced before the DCP and he did not give them any time to reflect or to rethink about their decision to make confession as it could be read against them during trial. It would have been appropriate for the DCP to have given a day or two days time to the accused persons to think over and then had asked them to appear before him for making any such confessional statement. However no such effort was made in this case for the reasons best known to the DCP. It is not clear as to what was the hurry for ACP Rajbir or DCP Sh. Balaji Srivastava in recording their confessional statements on 24/1/02. 221 Moreover the confessional statements were recorded without even moving an appropriate application before the DCP by the ACP and it is also not understandable as to why DCP rushed to the office of ACP the IO of the case for recording their confessional statements. Not even this the mandatory provisions of Sec. 32 POTO were not complied with to the effect that before a confessional statement is recorded it is duty of the DCP to explain in writing to the accused persons that they were not bound to make any such statement and if they do so it can be read against them during trial. In the present case, no such separate warning was given in writing to the accused persons nor their reply to the said warning 222 was reduced into writing separately. As per the testimony of PW1 ASI Rajeev Sharma PA / Steno of the DCP had recorded the confessional statement on the computer, however he was neither cited nor produced in the witness box to prove the recording of any such confessional statement by him on the computer, for which adverse inference is drawn against the prosecution as he could have been the best witness to prove as to whether the accused persons were given warning in terms of Sec 32 POTO and whether the confession was made by them voluntarily. It is pertinent to mention that the confession of the accused persons was got recorded on 24/1/02 whereas their police custody remand was going to be over 223 on 25/1/02 and it appears that the IO was in hurry to get their confessional statements recorded on 24/1/02 itself as another formality i.e confirmation of the confessional statement was also to be fulfilled before the accused were produced before the Spl Court on expiry of the police remand , so it appears that everything was done in hurry without complying with the mandatory Sec. 32 POTO, which is evident from the record that no application was moved before the DCP by the IO for recording their confessional statements. As such the possibility that the confession was not made voluntarily cannot be ruled out. It also taken note of that immediately before the accused were produced before PW1 Sh. 224 Balaji Srivastava they were in the police custody of ACP Rajbir and after the recording of confession or their refusal to make confession they had to go back to the police custody remand of ACP Rajbir, as such they were obviously under police pressure when their aforesaid confessional statements were recorded. The computerized confessional statement of both the accused shows that they were not given any time to think over after the so called warning that the confession can be used as evidence against them and that they were not bound to make any confessional statement, so that they could apply their mind and could take an appropriate decision whether they wanted to make any confessional statement 225 in the given set of circumstances. Besides the perusal of the confessional statement of both the accused shows that they are verbatim same except the introduction of each of the accused which further raises doubt that the aforesaid confessions were made by the accused persons before the DCP as rightly said by the defence counsel, both the statements are same word by word, coma by coma, fullstop by fullstop except the introduction of both the accused. Even the date 5/1/02 when as per their confession they had taken delivery of hawala money from Bengali Sweet Corner, the date is wrongly mentioned as 5/1/01 in the confession of accused Mohd Afsal Ex.PW1/A and similar date is recorded in 226 the confession of accused Adil Nazir Keen. As argued by the defence counsel it is unbelievable that both the accused had given wrong year of the deal while recording their confessional statement. It supports the defence version that the confessional statements were manipulated and fabricated. Moreover, in my opinion for not complying with the provisions of Sec. 32 POTO, the recording of confessional statements by the DCP is vitiated and the statements appears to be fabricated particularly when these are not substantiated by any other evidence. Besides, it is also evident on record that even when both the accused persons were produced before Sh. VK Maheshwari, the then ACMM 227 he too did not give them reasonable time to think over and confirm the confession made by them before DCP Sh. Balaji Srivastava. In these circumstances, the confessional statements Ex.PW1/A & PW1/B respectively of both the accused persons are not free from doubt and there is no cogent evidence on record that these were made voluntarily by the accused persons. Hence, in my opinion no reliance can be placed on these confessional statements.
81. The defence counsel has further argued that the confessional statements Ex.PW1 A & 1/B of both the accused are computer generated statements which are admissible in evidence subject to compliance of certain conditions as prescribed U/s 65(b) 228 of the Indian Evidence Act. I fully agree with the aforesaid contention of the defence counsel. In the present case, the conditions specified U/s 65(b)(2) for the admissibility of the computer generated statement, that the computer output containing the information was produced by the computer during the period over which the computer was used generally to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer has not been fulfilled nor it is proved on record that during the said period the information of the kind contained in the electronic record i.e the confessional statements of both the accused were 229 regularly fed in the computer in the ordinary course of the said activities and that during the relevant period the computer was operating properly and that in case it was not operating properly during any part of the period, it did not effect the electronic record or the accuracy of its contents. The other condition that the information contained in the electronic record i.e the confessional statements were fed into the computer in the ordinary course of the said activities has also not been proved . All these conditions were not fulfilled in the present case, as PW1 Sh. Balaji Srivastava DCP who had got recorded the confessional statements of both the accused on computer admitted during 230 cross examination that the confessional statement was recorded in the computer available in the office of ACP on hard disk but was deleted after taking prints. As such the record of the confessional statements recorded on the computer contrary to the provisions of Sec. 65(b) Indian Evidence Act, was not preserved. Besides, there is no evidence on record, on which computer the aforesaid confessions were recorded as it was not seized by the police and this is one another reason for which no reliance can be placed on the confessional statements of both the accused.
82. It is further pertinent to mention that both the accused as per the prosecution confessed that on 2/1/02 at 231 about 2:30pm accused Adil Nazir Keen, had received the call for the delivery of hawala money from the Pakistan contact of Abu Amaar and he fixed the time and place of delivery of hawala money. Accordingly both Mohd Afsal and Adil went to Bengali Sweet Corner, South ExtnI at 6:45pm where two persons contacted them and delivered the hawala money of Rs. 6.75 lakhs and a bag containing white colour explosive material and the person who contacted them had code name Nisar. However, there is nothing on record to suggest that any enquiry was conducted by the IO of the case from near Bengali Sweet Corner, South Extn to verify the confession made by both the accused to the above effect. Further the confession of 232 the accused persons to the effect that they were called on Bilal's number and directed to wait for further instructions. On 5/1/01 the caller from Pakistan directed them to receive Rs. 15 lakhs from hawala operator namely Dilip Bhai of M. Ramesh & Co., 4482, 1st Floor, Dau Bazaar, Cloth Market, Chandni Chowk and gave his telephone numbers 3988310 and 3157693. Accordingly, he contacted Dilip Bhai on the said telephone number and the same day received Rs. 15 lakhs from his above shop, however, no telephone record of the telephone installed in Karan Hostel which was used by Bilal for receiving calls was got verified to find out who had called on the said telephone number on 5th January whom the accused 233 persons in their confession have addressed as the caller from Pakistan. The accused persons have further confessed that on 13/1/02 they had received instructions of Abu Amar on Bilal's phone. However , again the call record of the aforesaid telephone was not got verified during investigation and no evidence on record to that effect has been led by the prosecution. Further the confession of the accused persons to the effect that hawala transactions had taken place on 14/1/02 with one Nisar near Gate No. 2 of Jama Masjid was again not verified and no investigation was carried out in this regard. There is no evidence on record that accused Mohd Afsal and Adil Nazir Keen had gone to gate No. 2 of Jama Masjid at 234 about 6pm on 14/1/02 and met any person with the name of Nisar. As such even the confessional statements though it has already been held above that they were not recorded according to the provisions of Sec. 32 POTA, were not verified during investigation and no corroborative evidence was collected . At the same time merely for the reason that their confessional statements are vitiated on account of non compliance of the provisions of Sec. 32 POTA it cannot be said that it effects in any manner the recovery of incriminating material effected from the possession of the accused persons from Karan Hostel.
83. In view of the above discussion, I find the prosecution has miserably failed to 235 prove on record the alleged hawala transactions between the accused persons and accused Dalip Tribhuvan Das Barot at the instance of accused Rajesh Bhai and Mehboob Karim Merchant who have already been discharged from the proceedings and the confessions of both the accused to that effect have remained uncorroborated. No evidence has been led by the prosecution that any hawala transaction was carried out by the accused persons with accused Dilip Bhai.
84. The prosecution has alleged that all the four accused belong to terrorist organization LeT. However no evidence has been led by the prosecution to substantiate these allegations. The only evidence against 236 accused persons are the confessional statements of Mohd. Afsal and Adil Nazir Keen to the effect that accused Mohd. Afsal, Adil Nazir and Ansar had joined LeT and used to provide shelter and amenities to the LeT militants and they were provided basic training in making IEDs by Abu Amar a PAK National and LeT militant, Distt. Commandor in Anantnag and that accused Bilal was also a LeT sympathizer as disclosed to them by Abu Amar. Except their confessional statements Ex.PW1/A & PW1/B of accused Mohd Afsal and Adil Nazir Keen there is no other evidence on record led by the prosecution to link the accused persons with the banned terrorist organization LeT. Moreover in view of the provisions of Sec. 237 32 POTO the confession of an accused is admissible in evidence only against him and not against the other accused persons, as such the confession of accused Mohd Afsal and Adil Nazir Keen if reliable could only be used against them and not against the other two accused Bilal Ahmed and Ansar. The prosecution has not led any evidence on record against accused Bilal and Ansar as to how they were found associated with or were members of LeT. The prosecution is relying upon the confessional statements of both the accused Mohd Afsal and Adil Nazir Keen to link their terrorist activities with a banned terrorist organisation LeT, however since the confessional statements of both the accused have been held to have not been 238 recorded properly and do not appear to have been made voluntarily, therefore I am of the opinion that even this evidence is not available to the prosecution to prove that they were members of banned terrorist outfit LeT, though the acts of all the accused while possessing huge quantity of hazardous explosive material ie RDX, electric detonators as well as unaccounted cash amount of Rs. 34.90 lakhs do amount to terrorist acts.
85. In view of the CFSL report Ex.PW3/A and PW4/A by Sh. NB Bardhan and Sh AK Arora it is proved on record that the physicochemical examination confirmed the presence of Potassium Chlorate in the white powdery substance which can form a 239 component of Improvised Explosive Mixture. and also that a mixture of RDX, PETN and ammonium nitrate formed the components of the brown colour putty like material and that the four electric detonators were live ones.
86. In view of the above discussion I am of the opinion that the prosecution has failed to prove on record that accused persons were members of any association declared unlawful under the unlawful activities (prevention act) 1967 or did any act voluntarily aiding or promoting in any manner the objects of such association and in either case referred above were found in possession of unlicensed firearms, ammunition, explosives and other instrument 240 or substance capable of causing mass destruction and committed any act resulting in loss of human life or grievous injury to any person or caused significant damage to any property, to attract the provisions of Sec. 3(1)(b) POTA. Similarly, though the accused persons have faced trial U/s 3(5) & 20 POTA with the allegations that they were members of LeT a militant organization declared as such under POTA and listed in schedule , however the prosecution has failed to lead any cogent evidence on record that the accused persons were members of any such banned terrorist organisation. The only evidence relied upon by the prosecution against them is the confession of accused Mohd Afsal and Adil Nazir Keen 241 which has been held to be inadmissible in evidence against them , as the prosecution has failed to prove that it was made voluntarily and was recorded vide complying the mandatory provisions of Sec. 32 POTA. Hence all the accused persons are acquitted of the charges U/s 3(1)(b) , 3(5) and 20 POTA. In the alternative, since the prosecution has proved on record the huge recovery of RDX, detonators and unaccounted money from their possession, it is also proved that they had conspired to commit a terrorist act with the help of hazardous explosive substance available in their possession and thus committed an offence punishable U/s 3(3) POTA.
87. The accused persons have further 242 faced trial U/s 4(b) POTA for possessing hazardous explosive substance i.e white powdery substance , brown colour putty like material and four live detonators which were capable of mass destruction. It is proved on record by the prosecution beyond reasonable doubt that the accused persons were found in unlawful possession of hazardous explosive material total weighing around 8 kg, 4 electric detonators. Vide the report of CFSL Expert Ex.PW3/A the white powdery substance on physicochemical examination confirmed the presence of Potassium Chlorate which can form the component of Improvised Explosive Mixture. Similarly, the CFSL report Ex.PW4/A, the brown colour putty like material on physico 243 chemical examination confirmed the presence of RDX, PETN, Ammonium Nitrate based mixture of High Explosive. As per the same report the four electric detonators on examination were found to be live ones. It is opined by the CFSL expert in its report that the RDX, PETN, Ammonium Nitrate can form the components of Improvised Explosive Device and are therefore explosive substances as defined in the Explosive Substance Act, 1908. Hence in view of the above discussion all the accused persons are convicted for the offence punishable U/s 4
(b) POTA.
88. Keeping in view the recovery of explosive substance of special category from possession of accused persons unlawfully the 244 intention of the accused persons was obvious to endanger life or cause serious injury to the property in India, they are liable to be punished U/s 4(b)(ii) of the Explosive Substance Act, hence they are convicted U/s 4(b)(ii) of Explosive Substance Act. Besides, the accused persons have failed to explain the possession of special category of Explosive substance with them which give rise to a reasonable suspicion that their such possession was not for a lawful object, hence they are convicted for the offence punishable U/s 5(b) of Explosive Substance Act.
89. The accused Mohd. Afsal and Adil Nazir Keen were charged with the offence punishable U/s 22(3)(5) POTA. As per the 245 provisions of Sec. 22(3) POTA a person commits an offence if he provides money or property and has knowledge or has reasons to suspect that this money will be used for the purpose of terrorism he commits an offence under this act and is liable to punishment U/s 22(5) POTA, however in the present case, this was not even the allegations of the prosecution against these two accused that they had provided any money or property to anyone with the knowledge or reason to suspect that it will be used for the purposes of terrorism. The provisions of Sec. 22(2) POTA are applicable in the present case as the possession of huge sum of money by the accused persons itself gives rise to the presumption coupled 246 with the recovery of RDX and detonators from their possession that this money was also meant to be used for terrorism. The accused persons have not explained as to how they were found in possession of this huge amount and once recovery was proved from their possession , the onus was on them to disclose to whom the money belonged and for what purpose it was lying in their possession. It was within their special knowledge as to from where they had collected the said money. If there was no malafide in possessing this huge amount they could have disclosed its source also. Hence, they are convicted for the offence punishable U/s 22(2) POTA.
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90. In view of the evidence led by the prosecution and the recovery of huge quantity of hazardous explosive material from the possession of accused persons and a sum of Rs. 34.90 lakhs meant for terrorist activities it is proved that all the accused had entered into a criminal conspiracy to wage war against the Government of India or to overawe the Govt of India by use of the hazardous explosive substance, hence all the accused persons are convicted for the offence punishable U/s 121A IPC. The accused are further convicted for the offence punishable U/s 122 IPC for collecting ammunition of hazardous nature which amounts to preparations towards waging war against the Govt of India.
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The case property of the present case is confiscated to the State.
Announced in open Court (Ravinder Kaur)
Date: 30/10/07 ASJ : New Delhi
249
IN THE COURT OF MS. RAVINDER KAUR ASJ, N.DELHI.
SC NO. 36/02 State Vs. 1. Mohd.Afsal Kumhar S/o Ghulam Mohd Kumhar R/o Telwani, Anantnag, PS Anantnag,Kashmir.
2. Ansar Ahmed Dar S/o Late Mohd Afzal Dar R/o Vill Dayal Gam, PS Sadar, Anantnag,Kashmir.
3. Bilal Ahmed Dar S/o Late Mohd Jabbar Mir R/o Vill Dayal Gam, PS Sadar, Anantnag, 250 Kashmir
4. Adil Nazir Keen S/o Nazir Ahmed keen R/o Chini Chowk, PS Sadar, Distt. Anantnag, Kashmir & Vill. Tailwani, PS Anantnag, J & K. FIR No. : 18/02 PS : Kotla Mubarakpur.
U/s : 121A/122 IPC, Sec. 3(3), 4(b) 22(2) POTA and Sec.
4(b)(ii) & 5 Explosive
Substances Act.
ORDER ON SENTENCE
Present: Ms. Anita Hooda,Spl.PP for State.
All accused in custody with
counsel Sh Maninder Singh, adv.
Arguments heard on the point of sentence.
Spl.PP has submitted that all the accused persons were found in possession of huge quantity of high explosive substance, four live electric detonators 251 and a sum of Rs.34,90,000/ for which they have been convicted for various offences. It is submitted that as per the CFSL reports Ex.PW 3/A and Ex.PW 4/B respectively, all the four detonators recovered from the possession of accused persons were found live and the explosive material was found of high intensity. It is submitted that since all the accused persons had entered into criminal conspiracy to wage war against the Government of India and in furtherance thereof collected the high explosive material and electric detonators, hence they should be given the maximum punishment prescribed under the various sections under which they have been convicted as if they had been successful in their intentions and had used explosive material and detonators it would have caused huge loss of lives and properties but it was due to the intelligence of Delhi police their designs failed.
On the other hand, the counsel for the accused has submitted that all the four accused have already remained in jail for a period of about 6 years and the jail record would speak of their conduct in the jail. It is submitted that accused Bilal Ahmed Dar has been teaching inside the jail another jail inmaters, whereas accused Mohd Afzal who is a junior engineer by profession and accused Adil Nazir Keen' s father is a blood cancer patient. Regarding accused Ansar Ahmed Dar it is submitted that his father was killed by militants in the year 1999 and the attested copy of the FIR reflecting this fact is filed on record which is in Urdu language and its translation in English language is also annexed alongwith copy 252 of the FIR. It is submitted that all the accused are young persons and have responsibilities of their families on their shoulders and that the approach of the court should be of reformative nature instead of being deterrents. It is further submitted that all the accused persons in view of their conduct since after their arrest should be shown leniency and be given a chance to reform themselves and lead a respectable life alongwith their family. It is prayed that they be released on the period of sentence already undergone by them during investigation and trial U/s.428 Cr PC. The accused persons who were present before me also wrote letters to me individually,wherein they have pleaded for mercy and have submitted that they are not terrorists but belong to respectable families. Accused Bilal Ahmed Dar in his letter to the Court has submitted that he was pursuing BBA Course and belong to an educated and respectable family and he left Kashmir Valley in l999 for further studies when his elder brother a government teacher was shot dead by the militants. He has submitted that his brother is survived by four matured unmarried daughters and that his father who was a school teacher died in the year 2000 due to kidney failure and his mother died in the year l994 due to blood cancer. It is submitted that he was dependent on the family pension which has been stopped after his arrest. It is submitted that due to present case his career has been ruined and he has suffered psycologically. He has prayed that he be released on the period already undergone by him in the judicial custody. 253
Accused Ansar Ahmed Dar in his letter to the Court has submitted that his father was killed by the militants in the year l998. It is submitted that he was doing packaging business and had connection in Delhi for the said reason. It is submitted that his all financial sources have been exhausted in fighting the present case. He too has prayed to be released on imprisonment already undergone by him and imposing a minimum fine.
Accused Adil Nazir Keen in his letter to the court has claimed that he has never been a terrorist and has never seen RDX or any other explosive substance in his live. He claims that his father is blood cancer patient getting treatment at AIIMS hospital and was advised Chemotherapy but for want of money he could not undergo such treatment as the entire money was spent by him in fighting the present case. It is submitted that he has two marriageable sisters who could not be married due to his involvement in the present case. His mother is a diabetic patient and brother is studying in Xth standard and that the responsibility of his entire family is on his shoulders.
Accused Mohd Afzal has also written a letter to Court which is re produced in the following words.
" I have a family.I have only a small dream to lead a good life with my family without any over ambitious. Please have pity on me and relieve me from this agony and pain. I beg for your mercy and justice.' ' He too claims that he is the only son of 254 his parents and sole bread earner to support his family consisting of his 6 ½ years old daughter, wife and old aged parents.
All these letters which have been received by the Court from the accused persons written by them from jail are kept on judicial file.
After hearing the submissions of both the parties and going through the contents of the letters, nodoubt I can feel pain with which these letters have been written. However, at the same time I am conscious of the fact that the sovereignty, integrity and security of the country cannot be compromised on any ground whatsoever. In the present case it has been proved on record by the prosecution that all the accused persons are guilty of a Terrorist Act by possessing huge quantity of high intensity explosive and four live detonators besides a sum of Rs.34,90,000/, the possession of which could not be explained by them and presumption is that it was meant to be used for terrorism. As such they do not deserve any leniency.
In the facts and circumstances of the case,all the accused persons are sentenced to imprisonment U/s.3(3) POTA for a period of RI 7 years each and to pay a fine of Rs.25,000/ each, in default to undergo SI for 3 months.
All the accused persons are further sentenced to imprisonment U/s.4(b) POTA for a period of RI 7 years each .
All the accused persons are further sentenced to imprisonment U/s.22(2) POTA for a 255 period of RI 5 years each.
All the accused persons are further sentenced to imprisonment U/s.4(b) (ii) Explosive Substances Act for a period of RI 7 years each and to pay a fine of Rs.25,000/ each, in default to undergo SI for 3 months.
All the accused persons are further sentenced to imprisonment U/s.5(b) Explosive Substances Act for a period of RI 7 years each and to pay a fine of Rs.25,000/ each, in default to undergo SI for 3 months.
All the accused persons are further sentenced to imprisonment U/s. 121 A IPC for a period of RI 10 years each and to pay a fine of Rs.25,000/ each, in default to undergo SI for 3 months.
All the accused persons are further sentenced to imprisonment U/s. 122 IPC for a period of RI 10 years each and to pay a fine of Rs.25,000/ each, in default to undergo SI for 3 months.
All the sentences shall run concurrently. Benefit U/s 428 Cr.PC be given to all the accused persons.
File be consigned to the Record Room.
Announced in open (Ravinder Kaur)
Court today ASJ/ New Delhi
Dated 22.11.07
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