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6 The case of the prosecution, to a large extent, hinges on the intercepted conversation between the appellants/accused persons, so also the intercepted conversation between appellant/accused no.1 Abdul Latif Shaikh and his handler referred in the conversation as Uncle.

APPEAL-187-2016-APPA-979-2017-J.doc 7 By now it is settled that right to privacy is included in Article 21 of the Constitution of India and it is a part of the right to protection of life and personal liberty. This right to privacy which is a part of right to life and personal liberty guaranteed by Article 21 of the Constitution of India includes holding of a telephonic conversation by a citizen which can be of a confidential nature. Telephonic conversation is one of the means for exercising right to freedom of speech and expression as enshrined in Article 19 of the Constitution of India. Thus, right to have telephonic conversation in privacy can be curtailed only as per the procedure established by law. This procedure is prescribed by Section 5 of the Indian Telegraph Act, 1885, and for our purpose, reproduction of provisions of sub-section 2 of Section 5 is necessary for the ready reference. It reads thus :

(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect."

10 Now let us examine the order dated 6 th March 2010 at Exhibit 137 issued by the Additional Chief Secretary (Home) to the State of Maharashtra under Section 5(2) of the Indian Telegraph Act, 1885, authorizing interception of two mobile phones including mobile phone bearing number 9323947342. The authority empowered to authorize interception and detention of conversation and messages is required to get itself satisfied as to "occurrence of any public emergency" or the "interest of public safety" prior to such authorization for intercepting the message. As seen from the order at Exhibit 137, the Additional Chief Secretary (Home) prior to issuance of order authorizing interception of all telephonic communications to the targeted APPEAL-187-2016-APPA-979-2017-J.doc mobile phones, had perused the report submitted by the Deputy Commissioner of Police, Anti-Terrorist Squad, Mumbai, to the Additional Director General of Police, Anti-Terrorist Squad, Maharashtra. The order of authorization (Exhibit 137) issued by the Additional Chief Secretary reflects that there is due application of mind by the authorising authority to the facts of the case. Recitals in the order at Exhibit 137 makes it clear that the Competent Authority under the Indian Telegraph Act, 1885, had kept in mind the fact that in view of recent blasts at the German Bakery, Koregaon Park, Pune, some foreigners are contacting their associates in India and are planning to execute destruction as well as commission of serious offences. The order at Exhibit 137 makes it clear that the authorizing authority has come to the conclusion that other modes of enquiries for gathering intelligence have failed and therefore, it is necessary to permit interception of the targeted mobile phone numbers for preventing incitement to the commission of serious offences. It is, thus, clear that, the order passed under Section 5(2) of the Indian Telegraph Act, 1885, and the recitals thereof shows that the same was passed in APPEAL-187-2016-APPA-979-2017-J.doc the interest of the public safety which is one of the ground for authorising interception of conversation. Perusal of the order at Exhibit 137 issued by the Additional Chief Secretary (Home) as such shows that it was necessary to avert danger or risk to the people at large and this was the consideration for issuance of the order. Perusal of the order granting authorisation to intercept shows that the same is demonstrating the fact that there had been proper application of mind on the part of the authority for coming to the conclusion that it was necessary, in the interest of the public safety, for preventing incitement to the commission of an offence, to intercept conversation from the targeted mobile phones. The learned counsel for the appellants/accused persons tried to assail the said order by pointing out admission in cross- examination of PW28 Mohan Kulkarni, Assistant Commissioner of Police, to the effect that he had not maintained any record of his visit to Mantralaya, and before going to Mantralaya for getting the order at Exhibit 137 from the authorising authority, he had not seen the record regarding public emergency. This argument is of no avail to the appellants/accused persons because PW28 Mohan APPEAL-187-2016-APPA-979-2017-J.doc Kulkarni, Assistant Commissioner of Police, was not the authority competent to permit interception and detention of the telephonic messages and conversation. He is the Requisitioning Officer. The material demonstrating occurrence of public emergency or the interest of the public safety is required to be scrutinized by the Appropriate Government or its Officers specially authorised in that behalf. This witness was not such an officer nor was he competent to authorize interception of conversation. Thus, evidence on record unerringly points out that considering the interest of public safety, on getting itself satisfied that it is necessary to intercept to do so for preventing incitement to the commission of an offence, the Additional Chief Secretary (Home) of the State of Maharashtra was constrained to issue the order at Exhibit 137 on 6th March 2010 authorising interception of the targeted mobile phones numbers including mobile phone number 9323947342. The order at Exhibit 137 itself makes it clear that the concerned authority has considered directions given by the Honourable Supreme Court in the matter of People's Union for Civil Liberties (supra). The appellants/accused persons failed to APPEAL-187-2016-APPA-979-2017-J.doc bring any material on record to show that the Review Committee at the State level has come to the conclusion that there has been any contravention of the provisions of Section 5(2) of the Indian Telegraph Act, 1885, while issuing the order dated 6 th March 2010 by the Additional Chief Secretary (Home), State of Maharashtra. It is not shown that the said order is set aside, at any point of time, on investigation by the State level Committee constituted in terms of judgment of the Honourable Apex Court in the matter of People's Union for Civil Liberties (supra). Thus, it needs to be put on record that, by following due process of law, the order at Exhibit 137 came to be passed by the authorising authority permitting interception of the conversation from the targeted mobile phone numbers.

13 PW8 Datta Gawade, Assistant Police Inspector, has spoken about interception and recording of in all eight conversations from targeted mobile phone number 9323947342 seized from appellant/accused no.1 Abdul Latif @ Guddu. His APPEAL-187-2016-APPA-979-2017-J.doc evidence shows that at 5.51 p.m. of 6 th March 2010, a call from unknown person came on this cell phone. He intercepted the same, got it recorded, and prepared the Compact Disk, and the transcript at Exhibit 45 is in respect of the same conversation recorded by him. As per version of PW8 Datta Gawade, Assistant Police Inspector, at 7.57 p.m. of 6th March 2010, out going telephonic call was made from the targeted mobile phone number 9323947342 to mobile phone number 5044 of Pakistan. By intercepting that call, he recorded the same and prepared the Compact Disk. The transcript of conversation at Exhibit 46 is that of recorded conversation. The third intercepted conversation, as per version of this witness, took place at 7.58 p.m. of 10 th March 2010. There was incoming call from mobile phone number 923072574692 of Pakistan to the targeted mobile phone number 9323947342. After intercepting this call PW8 Datta Gawade, Assistant Police Inspector got it recorded and prepared the Compact Disk. He stated that the transcript of conversation at Exhibit 49 is in respect of conversation during this call. Fourth conversation intercepted and recorded by PW8 Datta Gawade, APPEAL-187-2016-APPA-979-2017-J.doc Assistant Police Inspector, as deposed by him, is that of a call to the targeted mobile phone number 9323947342 from mobile phone number 9773084167 seized from appellant/accused no.2 Riaz Ali @ Riyan. As stated by this witness, he recorded this intercepted call and prepared the Compact Disk. Exhibit 50 is the transcript of that conversation. PW8 Datta Gawade, Assistant Police Inspector, further testified that on 12 th March 2010 at 5.18 p.m. there was a call from Pakistan on the targeted mobile phone number which he intercepted and recorded. The Compact Disk of that conversation was prepared and the transcript thereof is at Exhibit 51. Next call intercepted and recorded by this witness is a out going call from the targeted mobile phone number 9773084167 (which was seized from appellant/accused no.2 Riaz Ali @ Riyan) made on 13th March 2010 itself. The Compact Disk of this recorded conversation was prepared, so also the transcript thereof at Exhibit 51A. Evidence of PW8 Datta Gawade, Assistant Police Inspector, further shows that at 5.31 p.m. of 12 th March 2010 there was call to the targeted mobile phone number from mobile phone number 9773084167 (which was seized from APPEAL-187-2016-APPA-979-2017-J.doc appellant/accused no.2 Riaz Ali @ Riyan). This witness prepared conversation of this intercepted and recorded call and the transcript thereof is at Exhibit 51B. The last call recorded by the prosecution and coming on record through evidence of PW8 Datta Gawade, Assistant Police Inspector, is the one made to the targeted mobile phone number from mobile phone number 923072674692 from Pakistan at 6.11 p.m. of 12 th March 2010. Compact Disk of the intercepted and recorded conversation was prepared and the transcript thereof is at Exhibit 51C. 14 Perusal of evidence of these witnesses PW7 Rajesh Kasare, Assistant Police Inspector and PW8 Datta Gawade, Assistant Police Inspector shows that during the course of recording of their evidence, the Compact Disks of the recorded conversation were played and the conversation was tallied with the respective transcript. Both these witnesses have vouched about intercepting the conversation recorded in those Compact Disks and preparation of the transcripts which were tallying with the conversation recorded in the Compact Disks.

APPEAL-187-2016-APPA-979-2017-J.doc 20 The duly proved transcript of telephonic conversation from targeted mobile phone number 9323947342 are at Exhibits 47 to 51C. The first intercepted conversation is of 17.51 hours of 6th March 2010, the transcript whereof is at Exhibit 45. It was a call to the targeted mobile phone number 9323947342 from unknown number. The caller was asking appellant/accused no.1 Abdul Latif @ Guddu about progress in the matter of obtaining passport to appellant/accused no.1 Abdul Latif @ Guddu. The next call to this targeted mobile phone bearing number 9323947342 was from the Uncle based in Pakistan from mobile phone number 5044. It was at 19.57 hours of 6 th March 2010. The transcript of this recorded call is at Exhibit 46. Perusal of this transcript shows that the Uncle based at Pakistan was advising appellant/accused no.1 Abdul Latif @ Guddu to purchase one mobile phone Sim card in the name of another person and not to disclose that phone number to anybody else. Progress in the matter of obtaining passport by appellant/accused no.1 Abdul Latif @ Guddu was also asked by the caller. He was told by the APPEAL-187-2016-APPA-979-2017-J.doc caller to arrange for 2 to 4 friends for executing the work. It was assured that the caller will arrange for money. Upon that, appellant/accused Abdul Latif @ Guddu informed the caller that by Friday he will tell his two associates the time to set fire. The next intercepted call was at 15.20 hours of 7 th March 2010. It was from the targeted mobile phone number 9323947342 to the mobile phone number 9773084167 which was seized from appellant/accused no.2 Riaz Ali @ Riyan vide Seizure Panchnama Exhibit 31 on 13th March 2010. The transcript of this recorded conversation is at Exhibit 47. During this call, appellant/accused no.1 Abdul Latif @ Guddu was telling appellant/accused no.2 Riaz Ali @ Riyan that he will give details about the work of setting fire afterwards. Appellant/accused no.1 Abdul Latif @ Guddu was telling appellant/accused no.2 Riaz Ali @ Riyan not to call by his own telephone number. The conversation reflects that work of setting fire to some building was entrusted by appellant/accused no.1 Abdul Latif @ Guddu to appellant/accused no.2 Riaz Ali @ Riyan. Thereafter, the prosecuting agency has recorded the telephonic call in between targeted mobile phone number APPEAL-187-2016-APPA-979-2017-J.doc 9323947342 and international telephone number 5044. This was a call at 19.04 hours of 9th March 2010. Transcript conversation at Exhibit 48 of this recorded call goes to show that the Uncle was asking appellant/accused no.1 Abdul Latif @ Guddu as to what work he can do. Appellant/accused no.1 Abdul Latif @ Guddu answered that he can do any work entrusted to him. Appellant/accused no.1 Abdul Latif @ Guddu asked the Uncle as to whether he should blast out the ONGC building and upon that the caller/Uncle informed appellant/accused no.1 Abdul Latif @ Guddu to set that building on fire. Appellant/accused no.1 Abdul Latif @ Guddu then informed the caller/Uncle that he will do this work and he has one associate for executing this work. The subsequent call recorded at 19.38 hours of 10th March 2010 is between the targeted number 9323947342 seized from appellant/accused no.1 Abdul Latif @ Guddu and mobile phone number from Pakistan bearing number 923072674692. The recorded conversation is transcripted and the said transcript is at Exhibit 49. Perusal of this transcript shows that during that call, the Uncle was questioning appellant/accused no.1 Abdul Latif @ APPEAL-187-2016-APPA-979-2017-J.doc Guddu as to whether the entrusted work is done. Then appellant/accused no.1 Abdul Latif @ Guddu had asked the caller/Uncle as to whether the Thakur Mall should be targeted. He also informed the caller/Uncle that behind the Thakur Mall there is a colony of rich Gujarati persons. The Uncle then cautioned him to speak briefly and advised him to sent a message. Appellant/accused no.1 Abdul Latif @ Guddu then informed the caller/Uncle that he is purchasing a new Sim card for having detailed conversation. Then the next call intercepted by the prosecuting agency is of 23.07 hours of 10 th March 2010. It was from the targeted mobile phone number 9323947342 which was in possession of appellant/accused no.1 Abdul Latif @ Guddu to the mobile phone number 9773084167 which was in possession of appellant/accused no.2 Riaz Ali @ Riyan. The transcription of this intercepted conversation is at Exhibit 50. In this detailed conversation of six minutes and 2 seconds duration, both appellants/accused persons were talking about conspiracy to set fire at Thakur Mall and the nearby colony by pouring petrol. Appellant/accused no.1 Abdul Latif @ Guddu was telling APPEAL-187-2016-APPA-979-2017-J.doc appellant/accused no.2 Riaz Ali @ Riyan to execute the work of setting fire at the Thakur Mall and the nearby colony by asking as to how much expenditure is required to be incurred for getting this work done. Appellant/accused no.2 Riaz Ali @ Riyan by referring the inflammable substance as water was telling appellant/accused no.1 Abdul Latif @ Guddu that about 30 to 35 litres of water would be required to execute this operation. Appellant/accused no.1 Abdul Latif @ Guddu, as seen from this intercepted conversation, had assured appellant/accused no.2 Riaz Ali @ Riyan that he will pay all money which is required for execution of the work and had advised appellant/accused no.2 Riaz Ali @ Riyan to go underground for about one or two months after finishing the mission. Appellant/accused no.1 Abdul Latif @ Guddu had categorically informed appellant/accused no.2 Riaz Ali @ Riyan during this telephonic talks that lot of money would be paid if the work entrusted is executed, but it should be done at any cost by keeping secrecy, by not even disclosing the same to the family members. This telephonic conversant indicates that appellant/accused no.2 Riaz Ali @ Riyan was intending to flee APPEAL-187-2016-APPA-979-2017-J.doc from the country after executing the work, along with his fiance. The telephonic call exchanged between the targeted mobile phone number 9323947342 which was in possession of appellant/ accused no.1 Abdul Latif @ Guddu and the mobile phone bearing number 9773084167 which was in possession of appellant/ accused no.2 Riaz Ali @ Riyan came to be recorded at 17.29 hours on 12th March 2010 came to be intercepted and recorded. The transcript thereof is at Exhibit 51A. Perusal of the transcript of this intercepted call shows that appellant/accused no.1 Abdul Latif @ Guddu had informed appellant/accused no.2 Riaz Ali @ Riyan to text him the full address of the colony situated behind the Thakur Mall which was to be set ablaze. It was informed by appellant/accused no.1 Abdul Latif @ Guddu to appellant /accused no.2 Riaz Ali @ Riyan that he has demanded the money for execution of this work and had cautioned appellant/accused no.2 Riaz Ali @ Riyan that the work should be executed. Appellant/accused no.2 Riaz Ali @ Riyan assured that the work of setting fire to the colony will be done positively. At about 17.31 hours of 12th March 2010, there was a call exchange between the APPEAL-187-2016-APPA-979-2017-J.doc targeted mobile phone number 9323947342 possessed by appellant/accused no.1 Abdul Latif @ Guddu and the mobile phone number 9773084167 possessed by appellant/accused no.2 Riaz Ali @ Riyan. Appellant/accused no.1 Abdul Latif @ Guddu asked whether the Sim card of mobile phone number which is being used by appellant/accused no.2 Riaz Ali @ Riyan is standing in his name. When appellant/accused no.2 Riaz Ali @ Riyan informed that the mobile phone number is in his own name, appellant/accused no.1 Abdul Latif @ Guddu had requested appellant/accused no.2 Riaz Ali @ Riyan to give some other mobile phone number which is not registered in the name of appellant/accused no.2 Riaz Ali @ Riyan. Appellant/accused no.2 Riaz Ali @ Riyan assured to give another mobile phone number to appellant/accused no.1 Abdul Latif @ Guddu. Then, at about 18.11 hours of 12th March 2010, there was telephonic conversation between appellant/accused no.1 Abdul Latif @ Guddu who was holding targeted mobile phone number 9323947342 and the Uncle based in Pakistan holding the Pakistani mobile phone number 923072674692. Transcript of this APPEAL-187-2016-APPA-979-2017-J.doc intercepted call is at Exhibit 51C. The caller Uncle asked appellant/accused no.1 Abdul Latif @ Guddu as to the progress of work of obtaining passport by appellant/accused no.1 Abdul Latif @ Guddu. He advised appellant/accused no.1 Abdul Latif @ Guddu to bribe the concerned for getting the passport early. 21 If the conversation recorded in the intercepted calls, the transcripts whereof are at Exhibits 45 to 51C is appreciated in proper perspective, then it is clearly revealed that the appellants/accused persons along with the Uncle based at Pakistan were indulging in conspiracy of committing the terrorist act in Mumbai with intent to strike terror in the minds of people at large by using inflammable substance for causing death of persons and destruction of property apart from disruption of supplies of services essential to the life of community. It is clearly reflected from the intercepted conversation that the Uncle based at Pakistan had entrusted the work of commission of terrorist act at Mumbai to appellant/accused no.1 Abdul Latif @ Guddu and in turn, appellant/accused no.1 Abdul Latif @ Guddu had entrusted APPEAL-187-2016-APPA-979-2017-J.doc execution of this work to appellant/accused no.2 Riaz Ali @ Riyan. The telephonic conversation intercepted by the prosecuting agency indicates that appellants/accused persons were planning to set the Thakur Mall, the colony adjacent to Thakur Mall as well as the building of the ONGC on fire. The meticulous planning was being made by deciding to use 30 to 35 litres of inflammable substance which was deliberately referred to as water in the telephonic conversation. The telephonic conversation indicates that the Uncle based at Pakistan was taking due caution by instructing appellant/accused no.1 Abdul Latif @ Guddu to have a brief talk in the matter instead of narrating the entire details. This was obviously done to avoid detection of conspiracy which was being hatched by appellants/accused persons with the aid and assistance of the Uncle based at Pakistan. The material gathered by the prosecution in the form of the telephonic conversation shows that the appellants/accused persons were intending to execute the act with intent to strike terror in the people by using inflammable substance for causing death or injuries to the people at large apart from mass APPEAL-187-2016-APPA-979-2017-J.doc destruction of property. The conspiracy to commit the terrorist act is writ large from the intercepted telephonic conversations. 22 Now let us examine whether the intercepted telephonic conversations from the mobiles phones having the targeted mobile phone number 9323947342 and mobile phone number 9773084167 which were ultimately seized from both appellants/accused persons vide Seizure Panchnama Exhibit 31 belong to appellants/accused persons. For this purpose, the Investigating Officer had collected sample of voice of both appellants/accused persons after their arrest. This was done in presence of panch witness PW22 Satpal Singh by PW26 Subhash Dudhgaonkar, Police Inspector, Anti-Terrorist Squad. Both the appellants/accused persons were directed to talk on the telephones and their voice came to be recorded in the tape recorders attached to another telephone. The appellants/accused persons were asked to read from the written pages given to them. The recorded conversation from the cassette was got verified in presence of the panch witnesses by playing those cassettes, and APPEAL-187-2016-APPA-979-2017-J.doc subsequently, those cassettes were sealed. All these events were recorded in the panchnama of taking voice samples, by seizing cassettes, which is at Exhibit 118. Perusal of evidence of PW22 Satpal Singh - panch witness and the Investigating Officer PW26 Subhash Dudhgaonkar, Police Inspector, Anti-Terrorist Squad, leaves no doubt in the mind in respect of collection of voice samples of the appellants/accused persons by following due process by the prosecuting agency. The voice samples so collected were then sent for audiometry report to the Forensic laboratory by the investigating agency. The report sent by the Forensic laboratory upon examining the voice samples of the intercepted telephonic conversations is to the following effect :