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CASE NO.: Appeal (crl.) 208  of  2000

PETITIONER: GHULAM NABI WAR AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF N.C.T. OF DELHI

DATE OF JUDGMENT:       11/04/2000

BENCH: M B Shah. & Doraiswamy Raju.

JUDGMENT:

Shah, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Accused  have filed this appeal against the judgment and order  dated 10/15th December, 1999 passed by the Designated Judge-I,  New  Delhi  in Sessions Case  No.10/94  convicting accused Nos.1 and 2 for the offence punishable under Section 5  of  the Terrorist and Disruptive Activities  (Prevention) Act,  1987 (for short TADA Act) and under Section 5 of the Explosive  Substances  Act, 1908, and sentenced  to  undergo rigorous  imprisonment  for  eight  years   and  a  fine  of Rs.20,000/-  each  and  in  default of payment  of  fine  to further  undergo  rigorous imprisonment for one  year  under Section  5  of TADA Act and to suffer rigorous  imprisonment for  five years under Section 5 of the Explosive  Substances Act.

   It is the prosecution case that on 12th October, 1993, a secret  information  was  received  by  the  ACP  Shri  D.S.@@         JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Naurawat  (PW-11),  who was posted in the  Operations  Cell,@@ JJJJJJJJJJJJJJJJJJJJJJJ that  some  members  of the Muslim Mujahiddin,  a  terrorist outfit   organisation  of  Jammu  &  Kashmir,  were   hiding somehwere  in South Delhi to carry out terrorist  activities in  Delhi.   To  carry out and develop  the  information,  a special  team  comprising  of SI Kundan Singh,  SI  Joginder Singh,  SI  Radhey  Shyam  and  ASI  Swaminathan  under  the supervision  of  ACP Shri D.S.  Naurawat,  was  constituted. The police team came to know that 2-3 Kashmiris were staying in  House  No.I-105,  Lajpat Nagar on the second  floor  and their  movements were found doubtful.  After conveying  that information  to  the  superior officers at about  5.00  p.m. raiding party conducted raid at the said house.  In the said premises,  accused  Ghulam  Nabi War (A-1) and  Meer  Arshad Saleem  (A-2)  were found.  It has been further pointed  out that  A-2 was the tenant in possession of the said premises. After  carrying  out  a formal search of the  room,  from  a closed  loft of the room, one rexine bag was found which was brought  down.  The bag was found having a numbered lock and A-1  claimed  that  the said bag belonged to  him  and  gave

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secret  No.365  for opening the lock.  From the said bag,  a polythene  bag  of green colour containing 800 gms.  of  RDX and  another polythene bag containing detonators and a  cash of  Rs.25,000/-,  one  telescope of Russian  make  and  some clothes  of the accused were also found.  It is stated  that on further checking of the bag, three fax receipts, two cash memos  and three photostat copies written in Urdu were  also recovered  which  according  to  the  prosecution  contained formula for making a bomb.  Thereafter, DCP Shri B.S.  Bhola was  informed  and he arrived at the spot and it is  alleged that  on further interrogation the accused claimed to be the members of the Muslim Mujahiddin.  After verification of the facts, DCP B.S.  Bhola gave his approval for registration of the  case under TADA Act and under the Explosive  Substances Act.

   After  completing  the investigation, the  accused  were charged  for the offences punishable under Section 120-B  of I.P.C., Sections 3 and 4 of TADA Act read with Section 120-B of  I.P.C.,  Section  4  of the  Explosive  Substances  Act, Section  5 of TADA Act and Section 5 of Explosive Substances Act.   After  recording the necessary evidence, the  learned Designated  Judge  arrived at the conclusion that  from  the perusal of the prosecution evidence it is apparent that none of the ingredients of Section 3 of TADA Act has been alleged or  established.   The  evidence led by the  prosecution  is mainly  regarding the recovery of explosive substances only. The  court  further  observed  that  there  was  no  further reference  of  commission of any terrorist act committed  by the  accused  persons by using the explosive  substances  to over-awe  the  Government  lawfully established  by  law  to create  terror among the public of different sections of the society  and, therefore, there was no evidence on record  to bring  home the guilt to the accused persons under Section 3 of  TADA  Act read with Section 120-B of I.P.C.   Similarly, the  court held that prosecution evidence is totally lacking to  bring  home the charge under Section 4 of TADA Act  read with Section 120-B of I.P.C.  The court pertinently observed that  prosecution has, in fact, failed to lead any evidence, good  or  bad or indifferent, to show that  accused  persons were   members  of  the   Muslim  Mujahiddin,  a   terrorist organisation.   However, considering the evidence on  record with  regard to recovery of explosive substances, the  court convicted the accused as stated above.

   Learned  senior counsel, Mr.  Sushil Kumar appearing  on behalf  of  the accused submitted that the investigation  in the  present  case  and the evidence produced on  record  is absolutely  defective and is contradictory.  He pointed  out that  prosecution  has  failed  to  produce  on  record  any evidence of lock-up register to show as to where the accused were  kept  after  their  arrest.    He  also  pointed   out contradictory  statements made by the witnesses.  One stated that  they were kept at Lodhi Road Police Station, the other stated  that  they were kept in Lajpat Nagar Police  Station and  the  third stated that they were kept in  their  office premises  at Lodhi Colony Police Station.  He submitted that it  is  the defence of the accused that they were  taken  in custody  prior  to  12th October, 1993 and a false  case  is filed against them.

   He  next  submitted  that apart from  the  contradictory version,  the  registration  of  FIR,  preparation  of  four

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panchnamas  for the recovery of items from the same bag  and also the production of sanction letter granted under Section 20A  of  TADA  Act  create much  doubt  in  the  prosecution version.   Still, however, considering the fact that A-1 has virtually  undergone  six-and- a-half years of sentence,  he submitted  that a lenient view for the sentence may be taken without  going in detail.  For A-2, he submitted that  there is  no  evidence  on record to connect him  with  the  crime except  the  fact  that  A-1 was guest of A-2  and  A-2  was staying in the premises in question as tenant.  He submitted that  the prosecution version, at the most, establishes that as  soon  as  the  bag was found A-1  stated  that  the  bag belonged  to him and he gave the number for opening the lock of  the bag and if that is the prosecution version there  is no  question of connecting A-2 with the crime.  He submitted that  once  the  prosecution  has failed  to  establish  the offence  under Section 120-B I.P.C.  there is no question of convicting  A-2  for  joint   possession  of  the  explosive material.

   For   the  recovery  of  the   bag  and  the   explosive substances,   the  prosecution  has   examined   number   of witnesses.   PW-4  Inspector  Kundan Singh was a  member  of raiding  party.  It is his say that on 12th October, 1993 he was  posted  as  Sub Inspector in Operationa  Cell,  Special Branch  of  the Police.  A secret information  was  received that  some  Muslim  Mujahiddins of J & K group had  been  in Delhi  for  terrorist  activities.    After  developing  the information,  at  about 5.00 p.m.  under the supervision  of ACP  D.S.   Naurawat the premises in which  those  Kashmiris were  staying was raided.  During the search, one rexine bag was  found  from  a  closed loft (taund) of  the  room.   On enquiry,  accused  No.1  Ghulam Nabi War informed  that  bag belongs  to  him.  From the said bag, RDX  explosive  powder weighing 800 gms.was found.  There was another polythene bag in  the  said  bag containing small metal pieces  which  had electricity  wires  fitted in it and accused  No.1  informed that  those  were  detonators.    Further,  Rs.25,000/-   of currency  notes, one telescope and certain fax messages were also  found.  Information was sent to DCP Mr.  Bhola (PW-12) and  thereafter  he  came on the spot.   After  hearing  the accused,  he  directed  registration  of a  case  under  the provisions of TADA Act as well as Explosive Substances Act.

   The  aforesaid  evidence  gets   support  from  PW-5  SI Joginder  Singh.  He has stated that accused No.1 identified the  bag  recovered  during the search and  stated  that  it belongs  to him.  It is his say that accused No.2 opened the lock of the said bag.  Similarly, PW-9 ASI Swami Nath Shukla deposed  to  the same extent and he has stated that bag  was opened by accused No.1.  PW-11 D.S.  Naurawat, Addl.  D.C.P. has stated that bag was opened by accused No.1 by the use of No.365.   In  cross, he has stated that no finger prints  of the  accused  were lifted from the said bag because  accused No.1  had  admitted  the  possession of the  said  bag.   He further  stated that on information Shri Bhola, DCP  arrived at  the spot and after questioning the accused and examining the  material  he accorded permission for registration of  a case   under   TADA  Act   and  Explosive  Substances   Act. Similarly,  PW-12  Shri B.S.  Bhola, DCP has also  supported the prosecution version.  He also stated that he talked with both  the  accused  about  the recovery  of  RDX  and  other articles  and  they  disclosed that they  belong  to  Muslim Mujahiddin  militant  organisation  and that  the  recovered articles  belonged  to them.  PW- 15 Inspector Radhey  Shyam

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has  also stated the same facts with regard to the  recovery of  the  said  bag,  RDX  and that  accused  No.1  on  being questioned  informed  that  bag  belonged   to  him  and  he disclosed a secret No.365 for unlocking it.

   Considering  the  aforesaid evidence on record,  in  our view,  the learned Designated Judge was right in arriving at the  conclusion that the prosecution has proved recovery  of RDX and other articles from the house where accused No.2 was residing as a tenant.

   It  is  also  true that evidence on record  led  by  the prosecution  establishes  that as soon as the bag was  found@@              JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ A-1  stated before the concerned officers that the said  bag@@ JJJJJJJJJJJJJJJJJJJJJJ belonged  to  him.  He further gave No.365 for  opening  the lock  of the said bag and thereafter the said bag was opened as  stated by two witnesses by A-1 and by a third witness by A-2.   Leaving that part of contradictory evidence, from the aforesaid  evidence which is led by the prosecution  itself, according  to the prosecution version, A-1 was the owner  of the  said bag;  that he had given the number for opening the lock  of  the bag;  and that there is no other  evidence  on record led by the prosecution to connect A-2 with the crime. We  are  saying so because the trial court has  specifically found  that for the rest of the charges against A-2 there is no iota of evidence on record.  In any set of circumstances, once  the prosecution has failed to prove conspiracy,  there is  no  question of convicting A-2 for having been in  joint possession  of explosive substances.  Learned senior counsel for  the prosecution has failed to point out any  connecting evidence  to establish the alleged offences against A-2.  In this  view  of the matter, the impugned judgment  and  order convicting  A-2  Meer  Arshad  Saleem  S/o  Ali  Mohd.   Mir requires to be set-aside and is quashed and set- aside.

   As  regard  A-1,  as stated above, the  prosecution  has established  that  the bag containing RDX etc.  belonged  to him  and, therefore, he has been rightly convicted under the provisions  of  Section 5 of TADA Act and Section 5  of  the Explosive  Substances  Act.  Before the trial court, it  was pointed  out  that A-1 is a Graduate in  Engineering  coming from  a  good family background and in the jail also he  was running  Indira Gandhi National Open University and National Open School Study Centre for the past five years and that he completely  dedicated  towards this noble cause.  By  taking into  consideration the age, character, antecedents and  his conduct  during  the  period  of his remaining  in  jail  as undertrial,  the learned judge has taken a lenient view.  In view  of  the aforesaid background of accused No.1  and  the fact   that   he   has   already   undergone   sentence   of six-and-a-half  years, we reduce the sentence to the  period already  undergone.  We further set aside the order imposing a fine of Rs.20,000/- each for the offences punishable under Section  5 of TADA Act.  If the fine has already been  paid, the same be refunded.

   In  the result, the appeal is partly allowed.  A-2  Meer Arshad  Saleem  is acquitted.  He is ordered to be  released forthwith,  if  not  required in any other  case.   For  A-1 Ghulam Nabi War, sentence is reduced to the sentence already undergone and he is ordered to be released forthwith, if not required in any other case.

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