Document Fragment View

Matching Fragments

35. Pondering over the ongoing discussion, I am of the considered opinion that there was no valid sanction at the time of taking cognizance for the offence punishable under UAPA and the said incurable defect can not be rectified by filing the subsequent sanction.

Contentions relating to the compliance of Section 46 of UAPA:

36. Learned counsel appearing for the accused perspicaciously contended that the entire prosecution case is based on the alleged intercepted conversation that had taken place between accused Sajjad Hussain Sheikh and Mohd. Amin Khan. The transcription of said conversation is on record and same is exhibited as Ex. PW17/H. It was submitted that no reliance can be placed on the alleged conversation as the SC No. 09/11 Page no. 19 of 30 State Vs. Sajjad Hussain Sheikh same was unauthorisedly intercepted without any order from any competent authority. It was submitted that since the said conversation was intercepted without any order from any competent authority, same cannot be read in evidence in terms of Section 46 of the Act.

44. PW17 in his examination-in-chief categorically deposed that during investigation Sheikh Rashid had translated the intercepted conversation of accused Mohd. Amin Khan and Obaid-ul-Ahad with SC No. 09/11 Page no. 22 of 30 State Vs. Sajjad Hussain Sheikh accused Sajjad Hussain Sheikh. He further deposed that the conversation was in Hindi and Kashmiri. Though in the instant case, prosecution has failed to bring Sheikh Rashid in the witness box, yet during the trial of co- accused, he was examined as PW6 on December 5, 2007 and at that time he turned hostile completely by deposing that he had never visited the office of Special Cell on June 16, 2005 or that he had translated the interecpted conversation of above accused persons from Kashmiri to Hindi. No doubt, memo Ex. PW17/H shows that the said translation was seized in the presence of SI Umesh Barthwal but there is no evidence to show that the said translation was done in the presence of SI Barthwal. Mere fact that SI Barthwal is a witness of the seizure memo is not suffice to establish that the said translation was done in his presence. Moreover, it is admitted case of prosecution that SI Barthwal did not know Kashmiri, thus he cannot otherwise prove the said translation which has allegedly been done by Sheikh Rashid. Further PW17 in his deposition nowhere testified the genuineness of the said translation. In other words, there is no whit of evidence on record to establish that the alleged translation is the true and correct of the alleged intercepted conversation. This is another fatal blow to the prosecution case.

Contentions relating to the deposition of PW8 Dr. C.P. Singh:

45. Learned defence counsel further expatiated his contention by arguing that no reliance can be placed on the alleged intercepted conversation because prosecution case is the alleged conversation was in Hindi and Kashmiri whereas PW8 Dr. C. P. Singh had selected English words to compare the intercepted conversation with the voice sample. It was submitted that if the intercepted conversation was in Hindi and Kashmiri where was the occasion for PW8 to select English words for the SC No. 09/11 Page no. 23 of 30 State Vs. Sajjad Hussain Sheikh purpose of comparison. It was further submitted that PW8 in his deposition admitted that there is possibility of editing in any recording, thus no reliance can be placed on the testimony of PW8.

46. Per contra, learned Additional Public Prosecutor controverted the said contentions by arguing that mere fact he had picked up certain English words for comparison is not sufficient to discard the testimony of PW8.

47. PW8 Dr. C. P. Singh in his cross-examination admitted that the opinion can be given only if the questioned voice recording and specimen voice sample are in the same language. He further deposed that he did not know in which language the specimen voice of accused was recorded. But in his next breath, he deposed that sufficient clue words were available from questioned and specimen voice. He further deposed that the questioned conversation was partly in Hindi and partly in English. Similarly, the specimen voice sample was also partly in Hindi and partly in English. But he swiftly added that there were certain English words in both the sample. Thus, as per the testimony of PW8 he had compared the voice sample of accused with some words of Hindi and some words of English whereas prosecution case is that the intercepted conversation was in Kashmiri and Hindi. If it was so, it is beyond imagination how PW8 had found English words for the purpose of comparison. However, from his testimony it is clear that he did not select Kasmiri words for the purpose of comparison. When the attention of PW8 was drawn towards the seizure memo Ex. PW8/D2 to the effect that the alleged conversation was in Hindi and Kashmiri, he swiftly added that his job was to compare the voice and not to identify the language. No doubt his job was not to identify the language, but once he deposed that he had selected Hindi and English SC No. 09/11 Page no. 24 of 30 State Vs. Sajjad Hussain Sheikh words for the purpose of comparison, it shows that he had selected the words after identifying the language, thus he cannot be allowed to take such type of plea. He further deposed that he had selected 21 clue words each from questioned and specimen voice and the said clue words were either in Hindi or in English. Thus, it becomes clear that there was no word of Kashmiri in the said 21 clue words which were selected for the purpose of comparison. In his cross-examination, he also deposed that there is possibility of editing in any recording, thus, the possibility of editing in the instant also case can not be ruled out.