REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.            OF 2008 (Arising out of SLP (Crl.) No. 6506 of 2006

               Mahmood Rajasa Saiyed  ...Appellant

Versus

State of Gujarat     ...Respondent

J U D G M E N T   

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of

the  Gujarat  High  Court  dismissing  the  appeal  filed  under  Section  34  of

Prevention of Terrorism Act, 2002 (in short ‘POTA’).

3. Factual details have been indicated in Criminal Appeal (Arising out

of S.L.P (Crl.) No.4876 of 2006) disposed of today.

4. Appellant was arrested in connection with POTA Case No.12 of 2003

arising  out  of  ICR  No.6  of  2003  of  the  DCB  Crime  Police  Station,

Ahmedabad for offences punishable under IPC, Arms Act and POTA. An

application for bail was filed in terms of Section 49(6) and (7) of POTA.

The bail application was rejected primarily on the ground that the appellant

was found in possession of country made revolver and foreign made pistols

and  undisputedly  same  was  recovered  from  his  possession.  Ten  live

cartridges were also recovered from another co-accused. The statement of

the co-accused was recorded under Section 32 of POTA. The High Court

held that it is a fit case for grant of bail. Though, there was allegation of

illegal custody no material was placed in that regard. In view of the reasons

recorded  by  the  High  Court  and  the  trial  Court  for  rejecting  the  bail

application, we are not inclined to interfere with the appeal.  

5. The Trial Court has observed as follows:

“It is true that, the statement of Anas does not disclose this fact but, when the notification u/s 4 of the POTA is in effect and when the accused are charge-sheeted for the

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offence u/s 120-B, criminal conspiracy, the Court sees no reason as to why at this juncture the discretion should be used  in  his  favour  especially  when  the  criminal conspiracy is  alleged to be intended by the accused to terrorize the people of a particular section as well as to shake  the  integrity  and  unity  of  the  nation  in  the aftermath of Godhra incident where some of the accused have  also  taken  the  training  from  the  neighbouring country  Pakistan  in  deadly  weapons,  arms  and ammunitions and who also intended to make use of that training  by  procuring  weapons  to  execute  the  said conspiracy which are allegedly supplied by the present applicant accused.”

6. The High Court has also observed in this regard as follows:

“The appellant was found in possession of country made revolver  and  foreign  made  pistol  and  the  same  was recovered from his  pocket.   The panchnama in respect thereof was prepared.  The joint panchnama, which was prepared  also  mentions  about  the  10  live  cartridges which  were  recovered  from  another  accused  Mohd. Tarik.  The statements of the co-accused recorded under Section 32 of the POTA have been perused by us and prima  facie,  the  statements  given  by  the  co-accused indicate involvement of the appellant in the commission of crime.  The contention raised by the learned Advocate for  the  appellant  that  the  statement  of  the  co-accused Anas  Machiswala  does  not  disclose  prima  facie involvement of the appellant is without any substance, as notification under Section 4 of the POTA was in effect when  the  accused  was  charge-sheeted,  and  since  the accused was charge-sheeted for  the offence punishable under  Section  120B,  which  is  for  criminal  conspiracy, we see there was no reason to enlarge the appellant on regular bail. With regard to the statement of co-accused, which was recorded under section 32 of the POTA, save

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and except  the statement  recorded under  section  32 of the POTA, further corroboration was also forthcoming, Thus, the Court has to look into the entire material which was  available  against  the  accused.  The  prima  facie evidence was available  against  the appellant  and as he was  found  in  possession  of  the  fire-arms,  the  learned Special  Judge  has  rightly  not  used  the  discretion  to enlarge the appellant on bail and we also see no reason to interfere with the order passed by the learned Judge in appeal preferred by the appellant under Section 34 of the POTA.   As  regards  the  next  submission  of  learned advocate for the appellant that the accused has remained in  judicial  custody  for  nearly  two  years,  we  have considered the provisions of sub-sections (6) and (7) of section  49  of  the  POTA  and  the  rigorous  imposed therein.   The  rigorous  would  definitely  go  with  the completion  of  the  period  of  one  year  as  contemplated under  sub-section  (7)  of  section  49  of  the  POTA, but considering the provisions of section 439 of the Code of Criminal  Procedure  along  with  evidence  available against  the  accused,  in  our  view,  the  accused  has  not made out a case for this enlargement on regular bail.”

7. However, it is stated by learned counsel for the respondent-State that

the trial is at the advance stage. The trial Court is requested to complete the

trial as early as practicable.  

8. The appeal is dismissed.  

………………………...J. (Dr. ARIJIT PASAYAT)

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………………………...J. (P. SATHASIVAM)

New Delhi, November 11, 2008

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