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(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.

11 Now let us examine whether the prosecution has proved interception of telephonic conversation from the targeted mobile phones and whether such intercepted conversation demonstrate indulging in conspiracy, advocating, advising or inciting commission of terrorist act or any act preparatory to APPEAL-187-2016-APPA-979-2017-J.doc commission of the terrorist act by the appellants/accused persons or any of them. It will have to be seen whether it is proved by the prosecution that the appellants/accused persons had indulged in any act preparatory to commission of the terrorist act with intent to strike terror in the people by using inflammable substance to cause or likely to cause death or injuries to persons and loss, damage or destruction to the property. For this purpose, the prosecution is heavily relying on the evidence of PW7 Rajesh Kasare, Assistant Police Inspector and PW8 Datta Gawade, Assistant Police Inspector, working with the Anti-Terrorist Squad of Mumbai Police. Evidence of both these witnesses makes it clear that they were entrusted with duty to intercept the phone calls, to record the conversation and to prepare two Compact Disks of the recorded conversation. One of such Compact Disk, as seen from their evidence, was to be given to Shri Banerjee, Senior Police Inspector, and another to PW9 Vijay Kadam, Police Inspector, working with the Anti-Terrorist Squad. Evidence of PW9 Vijay Kadam, Police Inspector, shows that he was authorised to monitor the telephonic conversation with the help of his technical APPEAL-187-2016-APPA-979-2017-J.doc personnels and human resources, on receipt of the order Exhibit 137 under Section 5(2) of the Indian Telegraph Act, 1885. PW9 Vijay Kadam, Police Inspector, deposed that accordingly he gave mobile phone number 9323947342 to the technical unit of the Anti-Terrorist Squad where PW7 Rajesh Kasare, Assistant Police Inspector and PW8 Datta Gawade, Assistant Police Inspector were working, being entrusted with the duty to record the conversation from mobile phone number 9323947342 in the mission called as "Operation Yatra". PW7 Rajesh Kasare, Assistant Police Inspector and PW8 Datta Gawade, Assistant Police Inspector working with the Anti-Terrorist Squad have recorded conversation made from that mobile phone number from 5.51 p.m. of 6th March 2010 to 6.11 p.m. of 12th March 2010. In all ten telephonic conversations from this mobile phone number were intercepted and recorded. Evidence of both these witnesses shows that they had then prepared transcript of the telephonic conversation from mobile phone number 9323947342.

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 15 The defence tried to assail evidence of these witnesses by their searching cross-examination. However, nothing could be brought on record to disbelieve version of both these witnesses. They were working in the technical department and PW7 Rajesh Kasare, Assistant Police Inspector, declined to disclose the location of that department, it being an official secret. His evidence shows that the technical department of the Anti-Terrorist Squad is not maintaining the Station Diary and not keeping the proof of attendance such as muster. He was hearing conversation on the head-phone of which specifications he was not recollecting while in the witness box. These aspects are not going to the core of the testimony of this technical expert. The technical department of the Anti-Terrorist Squad is not a police station and as such, maintaining of the Station diary is not required. Cross- examination of PW8 Datta Gawade, Assistant Police Inspector, shows that he had not made any record of calls intercepted up to 5th March 2010. This is obvious because he was legally entitled to intercept the calls from 6th March 2010 and prior to that he might APPEAL-187-2016-APPA-979-2017-J.doc not have intercepted the calls nor made record thereof. Some questions eliciting opinion of this witness were asked to him but those were rightly rejected by the learned trial court. The fact that this witness did not register the FIR though he heard conversation depicting cognizable offence is not of any advantage to the defence because this witness was a part of larger mission which was collecting actionable material in the matter. His superior officers were to take care of taking legal action in the matter. This witness refused to disclose names of the equipments used for intercepting the phone calls, rather rightly. The crux of the matter is whether these two witnesses had, infact, intercepted the targeted mobile phones and whether they had recorded conversation by intercepting the calls in respect of the targeted mobile phones. On this aspect evidence of both these witnesses remain unshattered and therefore, the same deserves to be accepted.