http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 48  

CASE NO.: Appeal (crl.) 219  of 1997

PETITIONER: LAL SINGH

       Vs.

RESPONDENT: STATE OF GUJARAT & ANR.

DATE OF JUDGMENT:       09/01/2001

BENCH: M.B.Shah, S.N.Phukan

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     Shah, J.

     After  trial in TADA Case Nos.2/93, 7/93 and 2/94,  by judgment  and order dated 8th January, 1997, the  Designated Judge,  Ahmedabad (Rural) at Mirzapur, Ahmedabad,  acquitted 16  accused  and  convicted 5  accused,  appellants  herein, namely,  A1 Lal Singh, A2 Mohd.  Sharief, A3 Tahir Jamal, A4 Mohd.    Saquib  Nachan  and   A20  Shoaib  Mukhtiar.    The appellants  were  convicted for the offences punishable  (1) under  Section 3 (3) of Terrorist and Disruptive  Activities (Prevention)  Act,  1987 (hereinafter referred to  as  TADA Act) and sentenced to suffer life imprisonment and to pay a fine  of Rs.10,000/- each and in default to suffer R.I.  for 6  months;  (2) under Section 120B (1) of IPC and  sentenced to  suffer  R.I for 10 years and to pay a fine of  Rs.5000/- each,  in  default to suffer R.I.  for 3 months.  They  were further  convicted for the offence punishable under  Section 3(3)  of  TADA Act read with Sec.  120B IPC but no  separate sentence  was  awarded.   Accused   No.1  was   additionally convicted for the offences punishable (1) under Section 5 of TADA  Act  and sentenced to suffer life imprisonment and  to pay  a  fine of Rs.10,000/-, and in default to  suffer  R.I. for  6  months;   and (2) under Section 5 of  the  Explosive Substances  Act, to pay a fine of Rs.  5000/- in default  to undergo R.I.  for 3 months;  (3) under Section 25(1A) of the Arms  Act  and sentenced to suffer R.I.  for 7 years and  to pay  a fine of Rs.5,000/- and in default to suffer R.I.  for 3  months.  No separate sentence for A-1 under Section  3(3) of TADA Act, Section 5 of Explosive Substances Act read with Section 120B IPC was passed.  All sentences were directed to run concurrently.

     Against  the said judgment and order, A1 Lal Singh has filed  Criminal  Appeal No.219/1997, A2 Mohd.   Sharief  has filed Criminal Appeal No.1409- 1411/1997, A3 Tahir Jamal has filed  Criminal  Appeal  No.407-409/1997, A4  Mohd.   Saquib Nachan  has  filed  Criminal   No.244/1997  and  A20  Shoaib

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 48  

Mukhtiar has filed Criminal Appeal No.294/1997.

     In  all, twenty one accused were tried jointly  before the  trial court on the charge that they alongwith 13  named absconding  accused and some unknown Sikh militants  hatched criminal  conspiracy in India and abroad for subversive  and terrorist  activities in India and for facilitating creation of  Khalistan and liberation of Jammu and Kashmir by violent means  during  the period between September, 1988  to  July, 1992;   accused  no.1  Lal Singh visited  Pakistan  on  fake Pakistani  passport and contacted Inter Service Intelligence (ISI)   officials  of  Pakistan   for  smuggling  of   arms, ammunitions   and  explosives  and   money   for   terrorist activities  into India;  accused No.2 is Pakistani  national and  ISI  agent;  accused nos.1 and 2 alongwith Sajjad  Alam Raja   (absconder)   unlawfully   indulged   in   subversive activities, created an organization at Lahore (Pakistan) for liberation of Kashmir and its merger with Pakistan, creation of  Khalistan  in  India  by striking terror  in  people  or section of people or to adversely affect the harmony amongst different  sections of people, creating hideouts at  various places  in India with the help of A4 and A20;  accused  No.2 along with accused No.1 and some unknown Pakistani smugglers facilitated  the smuggling of several consignments of  arms, ammunitions  and  explosives  into India  from  Pakistan  by illegal  means during 1991;  A1, A2 and A20 along with  some absconders  conspired  to strike terror by violent means  to eliminate  BJP/Hindu  leaders/police officers and  for  that purpose  procured  fire-arms,  ammunitions  and  explosives; accused  no.3,  4  and  20 with the help  of  other  accused created hideouts for accused no.1 for intensifying terrorist activities  and for arranging transportation;  accused  no.1 alongwith accused Devendrapal Singh alias Deepak (absconder) while  staying  at  Ahmedabad  was in  constant  touch  with accused  Gurjit  Singh  Dhaliwal   alias  Pal  alias  Sharma (absconder) in USA.  He coordinated the terrorist activities in  India  on  telephone and that at the behest  of  accused persons  huge quantity of arms, ammunitions, explosives  and other  articles  were recovered and found to be  in  working order,  which  were of foreign make and sufficient to  cause explosions.

     According  to  prosecution,  in   the  year  1984  the terrorism  had gone beyond limits and therefore, blue  star operation was performed.  Just to oppose the action of blue star  operation,  the  dissatisfied and  angry  Sikh  youths started  creating  disharmony  amongst two major  groups  of Hindus   and  non-Hindus.   I.S.I.    of  Pakistan   started instigating  Indian Muslim and Sikh youths for this purpose. ISI  contacted  certain  youngsters in India, who  were  the members  of  one organization named SIMIan institution  for the  purpose  of cultural and religious  activities  amongst Muslim youngsters and to follow the principles of Holy Kuran and  to  live  the  life guided by  Holy  Kuran.   For  this purpose,  ISI  took help of Mr.  CMA Bashir (absconding)  of Kerala  having  close connection with SIMI.  As the area  of Punjab  and J&K was not safe for the above activities,  they chose  certain  borders of Gujarat and  Rajasthan.   Accused no.2a  Pakistani National and ISI agententered into  India for  getting  information  regarding defence base  of  India situated  at  Ambala, Punjab, J&K and for  collecting  other inside  information in connection with defence personnel and army  position  in  India.  For this  purpose  he  contacted accused  nos.1, 3 and 4.  Accused no.1 and 2 were active  in furtherance  of their conspiracy.  They entered into  India,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 48  

lodged  at  different places in order to achieve  the  goal. Both of them created contacts in India with accused no.20 at Aligarh and accused nos.3 and 4 at Bombay.  Accused no.1 and 2  visited  various places of India including Ahmedabad  and Bombay in their fake names.  The modus operandi of these two accused  persons  was to have their activities  under  false identity.   In  December, 1991 both the accused  reached  at Aligarh  where they started their activities.  Their targets were  to create hideouts, to have their own agents, to  have their contacts with agents in Pakistan, UK, Canada etc.  and to  have  hideouts elsewhere.  It is stated that A1  and  A4 visited Madras to survey the stock exchange building to find out  the  possibility  of bomb blast there.  It  is  further stated  that  accused  persons were using various  types  of vehicles  according  to their requirement  and  convenience. Out  of those vehicles, one jeep and scooter were  recovered from  Ahmedabad  and  one gypsy was recovered  from  Bombay. During  interrogation  of  accused  No.1,  two  hideouts  of accused  persons  at Ahmedabad came to be known and raid  of these   hideouts   resulted  into   recovery  of  arms   and ammunitions.   At both the hideouts, they were living  under different  identities.   It is further stated that A1 to  A4 and  A20,  in  their   respective  confessional  statements, corroborate  with each other on various points and items  of conspiracy.   The  statements  lend  support  to  prove  the conspiracy.   The evidence against A3, A4 and A20 shows that they were helping and abetting A1 and A2 in common design.

     It  is  further case of the prosecution  that  accused No.1  Lal  Singh was arrested in the morning of  16.7.92  at Dadar  Railway Station while he was alighting from a  train. His  arrest  was shown in RC5/92 in which final  report  was submitted  as no case is made out.  For the present  case, it  is  the  prosecution  story   that  Mr.   Hiralal,   the Commissioner  of  Police, Baroda (Gujarat)  got  information that  one  terrorist Inder Pal Singh alias Lal  Singh  along with  other associates was arrested by Bombay Police and the arrested  terrorist Lal Singh confessed regarding conspiracy hatched  for kidnapping of grand-daughter of V.V.I.P.   from Pune  and  that main leaders were operating from Baroda  and other  cities  of  Gujarat.    The  Commissioner  of  Police entrusted  the work of verifying the said information to Mr. Anopkumar  Singh,  DCP (PW10).  It was decided to  send  ASI I.C.   Raj,  PW9  of Chhani Police Station,  Baroda  working under  Mr.   Anopkumar  Singh, to Bombay  for  interrogating Inderpal  Singh  and his associates.  After  contacting  the Police  Commissioner, City of Bombay, on 23rd, 24th and 25th July,  1992 ASI Mr.  Raj interrogated accused Lal Singh.  He was  sending  information  every  day  with  regard  to  the interrogation  to  DCP Mr.  Anopkumar Singh.  On 24th  July, 1992 on the basis of interrogation, information was conveyed at  Baroda  with regard to large scale arms and  ammunitions stored  at certain premises at Ahmedabad.  On receipt of the said  information,  Mr.   Anopkumar   Singh  rushed  to  the Commissioner  of Police, Baroda.  Further, the D.G.   Police of Gujarat State was informed immediately on telephone about the  said  information.  The C.P.  Baroda also talked  about the  information  with Mr.  Surolia, DCP Ahmedabad  (PW103). The  information  was received at night time on  24th  July, 1992  and  PW7  ASI T.A.  Barot located  the  two  premises, namely,  Flat  No.   C-33,  Paresh  Apartments  situated  at Narayanagar  Road,  Paldi  and  House  No.4-A,  Usman  Harun Society, Juhapura at Ahmedabad and raids were carried out on 25th  July in the morning.  During raids, large quantity  of arms,  ammunitions  and explosives were recovered  from  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 48  

said  premises.  The Ahmedabad police was investigating  the crime  but considering its seriousness, on 31st July,  1992, the  State Government gave consent for investigation by  the CBI.   On 4th August, 1992, Central Government notified that investigation be carried out by the CBI.  The CBI registered the  case as RC-6/92, carried out the investigation and also recorded  confessional statements of the accused.   Finally, after    completing   the     investigation   accused   were charge-sheeted   and  tried  by   the  Designated  Judge  at Ahmedabad.

     To  prove  the charges, the prosecution  examined  136 witnesses during the trial and relied upon various documents including    confessional    statements    recorded   during investigation.

     All  the accused persons abjured their guilt,  pleaded innocence  and stated that they have been falsely implicated in  this  case.  Accused no.1 Lal Singh has stated  that  he left  India  in the year 1991 and returned to India  in  the year  1992  and  when he was at Bombay, he was  arrested  at Dadar  Railway  Station.  He has denied all the  allegations levelled  by  the  prosecution and stated  that  during  his arrest   his  signatures  on   blank  papers  were  obtained forcefully   and  that  he   never  gave  any   confessional statement.   During  police  lock up, he was  tortured,  his tongue  was cut and was injured on the head.  The Doctor was required  to take 12 sutures on his head injury.  It is  his say  that  when he was arrested at Dadar Railway Station  at the  ticket counter, he was having 350 American dollars  and 15  to  16 thousand Indian currency notes.  He has  disputed the date and time of his arrest.

     Accused  no.2  Mohd.   Sharief admitted that he  is  a Pakistani National and is Ahmadi Muslim.  He has also denied all  allegations levelled by the prosecution and stated that during  his  arrest  his  signatures on  blank  papers  were obtained  forcefully and that he never gave any confessional statement.   He has stated that the Pakistan Govt.  declared Ahmadi Muslim Community as non-Muslim Community.  His father died  because  of torture exercised by extremist Muslims  of Pakistan.   He has further stated that Indian Government had sponsored  one  conference of Ahmadi Muslims at  Gurudaspur, Punjab.   He wanted to settle at Germany and, therefore,  he contacted  one  Ch.   Avtar  Ahmad   in  India  for   making arrangement  for  going  to Germany.  When he was  at  Delhi Airport  and was preparing to leave for Germany via  Moscow, he was stopped and later on arrested.  From August 1992 till July  1993,  he  was confined at Lal Quila, Delhi.   He  was tortured  and  his  signatures were taken on  blank  papers. Because of threats given by the C.B.I.  Officers, he had not disclosed  the story of torture when he was produced  before the  Court.  He refused to identify other accused.  He  also denied to have visited India except in August 1992.

     Accused  No.3, Tahir Jamal also refused of having  any relation with any of the accused.  He stated that during the period  of remand, no specimen writings were taken from him. Accused  No.4, Saquib Nachan has stated that he was arrested from  his  village.   He  has also  denied  all  allegations levelled  by  the  prosecution and stated  that  during  his arrest  his  signatures on blank papers were obtained  under pressure  and  torture.  Accused No.20, Shoaib Mukhtiar  has stated  that he was arrested from Aligarh.  C.B.I.  officers took  his  signatures  on  blank papers  after  torture  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 48  

beating  him severely.  With regard to the evidence of  Azim Varasi,  PW87, he has stated that witness was his friend but afterwards  their relations became enemical.  This  happened because  he  was not ready to marry with the sister of  Azim Varasi  and  further there was some quarrel between them  on account of money.

     It  is not necessary to narrate the defence of rest of the accused who are acquitted.

     After  appreciating  the  entire   evidence  at  great length, the learned Designated Judge convicted the aforesaid five  accused and gave benefit of doubt to remaining sixteen accused.   The  Court  arrived at the  conclusion  that  the prosecution  has  proved  that:   1.   the  muddamal   arms, ammunitions  and  explosives produced before the court  were recovered  on 24.7.92 from C-33, Paresh Apartments and  4-A, Usman Harun Society and the same were recovered on the basis of  the  information  given by the accused no.1  during  his interrogation;

     2.   the  link  between accused  no.1  and  absconding accused  Manish  Agrawal  with  the  premises  C-33,  Paresh Apartments  and/or 4-A of Usman Harun Society and the  above two  premises  or  any  of the two was used  as  hideout  by accused  no.1, absconding accused Manish Agrawal alias Dipak or any of the accused named in the charge-sheet;

     3.   in  pursuance of criminal conspiracy,  absconding accused  Devendrapal Singh alias Manish Agrawal alias  Dipak reached  to  Ahmedabad in April, 1992 with Rs.2,00,000/-  to 3,00,000/-  and  stayed  with accused no.1 in a  hired  flat no.C-33,  Paresh  Apartments  and in  a  purchased  bungalow no.4-A, Usman Harun Society;

     4.   for  the convenience of the conspirators and  for transporting  the  firearms,   ammunitions  and  explosives, accused  no.1,  absconding  accused  Devendrapalsingh  alias Manish  Agrawal  alias  Dipak and Dahyasingh  Lahoria  alias Vijay  Pahelvan  purchased a Maruti Gypsy  No.MH-01-8942  of blue  or sky blue colour and a Mahindra Jeep  No.MH-04-A2114 from Bombay and these vehicles one after another were put to the disposal of accused no.1 at Ahmedabad;

     5.   the scooter bearing no.GJ.1.P.9485 was  purchased in the name of Ashok Kumar Khanna (accused no.1) from Arvish Auto  of Ahmedabad and the same was found on 24.7.92 in  the compound of B.No.4-A, Usman Harun Society;

     6.   accused  nos.1 and 2 had entered into India  from Pakistan  through entry point Bombay Airport in the name  of Chaudhari  Mohmad  Iqbal and Manzoor Ahmad  respectively  as Pakistani Nationals on 11/12.12.91;

     7.   their visits at various places in furtherance  of criminal conspiracy hatched by A1 to A4 and A20:

     (i)  the  visit of accused nos.1 and 2 at Aligarh  and their  stay  at  Aligarh in the month of December,  1991  or round about;

     (ii)  the  visit of accused nos.1 and 20 at Bombay  as alleged;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 48  

     (iii)  the  visit of accused nos.1 and 4 at  Ahmedabad and  their stay in hotel Sidhdhartha Palace and the stay  of accused  no.1  in  hotel  Royal and/or  hotel  Butterfly  at Ahmedabad;

     (iv)  the visit of accused no.1 and absconding accused Mushahid  under  assumed names of K.  Kumar and  M.   Husain respectively  to  Bombay on 30.6.92 and their contacts  with accused  no.4  to  plan out about the bomb  blast  in  Stock Exchange Building at Madras;

     (v)  the visit of accused no.1 and absconding  accused Mushahid  Husain to Hotel Balvas International in the  names of Murtuzakhan and Anwar;

     (vi)  the  visit  of accused  nos.1,4  and  absconding accused  C.A.M.   Bashir to Madras on 2.7.92 as alleged  and the  stay  of  accused nos.1 and 4 in  hotel  New  Woodland, Madras;

     (vii)  the  visit  of accused nos.1,4  and  absconding accused C.A.M.  Bashir of Stock Exchange Building, Madras on 3.7.92 and the return journey to Bombay on 4.7.92;  and

     (viii)  the  visit of accused nos.3,4  and  absconding accused Mushahid Husain to Pakistan in the year 1991.

     8.   accused  no.1  had brought 3000  US  dollars  and Rs.20,000/- in Indian currency and accused no.2 brought 3000 US  dollars  and  Rs.30,000/- in Indian Currency  when  they entered  into India in December, 1991 and ultimately reached to Aligarh;

     9.  accused no.2 came to India sometimes during March, 1991  to establish contacts with Kashmiri or Sikh  Militants for  terrorist activities.  He again came to India sometimes during  October,  1991  to  set up  hideouts  and  contacted accused  no.1  on  phone  at  Lahore  (Pakistan)  and  after creating base and hideouts, he left for Pakistan;

     10.  accused no.3, 4 and absconding accused CAM Bashir contacted  absconding  accused  Amir-ul-Azim  at  Bombay  to create  hideouts  for accused no.1 at Ahmedabad for  storing the firearms, ammunitions, explosives etc.  and accused no.3 collected  1700  American dollars and subsequently  received Rs.7,00,000/-  in Indian Currency from him for  intensifying the terrorist activities and further that out of this amount the sum of Rs.90,000/- and 1700 pounds were recovered;

     11.    during  February,   1992,  absconding   accused Devendrapal  Singh  and Majindar Singh visited  Aligarh  and accused  no.1  informed them that huge consignment  of  fire arms  was  being sent for Punjab and arrangement  should  be made  for  a  motor truck to transport  the  consignment  of weapons  from  Indo-Pak border and for the  purpose  accused no.1  gave  Rs.10,000/- to accused no.20 for  arranging  the truck;

     12.  in the month of February accused nos.1 and 2 came into  telephonic contact with absconding accused Daljitsingh Bittoo  from  Pakistan,  who passed on the  information  for creating  hideouts  in  Ahmedabad   for  storing,  firearms, ammunitions and explosives sent from across the border;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 48  

     13.   during  the  visit of accused nos.1  and  20  to Bombay  they contacted accused no.3 who was already informed about  the  visit  by  accused no.1  on  telephone  and  was instructed by absconding accused Amir-ul-Azim;

     14.   accused no.3 introduced accused no.4 to  accused no.1 and they all planned for creating hideouts at Ahmedabad and   for  this  absconding   accused  Mushahid  Husain  was contacted;

     15.    accused  nos.1  and  4  visited  Ahmedabad   on 29.2.1992  in  the  assumed  names as Iqbal  and  Mohmad  S. respectively  and  met absconding accused  Mushahid  Husain. Mushahid  Husain made arrangement for hiring the House No.82 of Mubarak Society and accused no.1 shifted to Ahmedabad for illegal  activities in furtherance of the conspiracy in  the first week of March, 1992;

     16.   on  16.7.92,  accused no.1  was  apprehended  by Bombay  police  at  Dadar Railway Station and at  that  time during  his personal search, 200 US dollars and  Rs.30,664/- in  Indian  currency,  one  visiting card  of  hotel  Samrat containing  various telephone numbers and a driving  licence in the assumed name as Kishor Kumar alongwith other articles were recovered;

     SUBMISSIONS:

     At  the time of hearing of these appeals, Mr.   Sushil Kumar, learned Senior Counsel appearing on behalf of accused no.1  and  4 has taken us through the material part  of  the evidence and has contended that the Trial Court ought not to have  relied upon the confessional statements of the accused as  the  same  are  neither  voluntary  nor  truthful.   For contending  that confessional statements are not  voluntary, he submitted that all throughout accused were kept in police lock-up  and  during that time their so-called  confessional statements  were  recorded  by the  Investigating  Officers; before  recording  the confessional statements, the  accused were  not  informed that after making the  statements,  they would  be produced before the Judicial Magistrate and  would be sent in judicial custody.  It is pointed out that accused No.4  was arrested on 10.10.1992 and thereafter he was  kept in police custody and on 7th November, 1992 his confessional statement was recorded.  After recording the said statement, he  was  again  sent to police custody till  12th  November, 1992.   This  would apparently indicate that the  statements were  recorded under coercion and police torture.   Further, even  after recording the so-called confessional statements, accused  were kept in police lock-up and produced before the judicial  magistrate  after long lapse of time.  He  further pointed  out  other  circumstances for contending  that  the confessional  statements  of accused Nos.  1 and 4  are  not truthful  and  in support of his contention, he has  pointed out   certain  contradictions  in   the  evidence  of  these witnesses.   He  submitted that the accused were  in  police custody  for a long period and after getting some  evidence, the  Investigating  Officers have recorded the  confessional statements  of the accused.  If the accused were prepared to make  voluntary  confessional  statements,   there  was   no necessity  of calling Mr.  Sharad Kumar, S.P.  (PW 133) from Delhi for recording their statements at Ahmedabad because in the  metropolitan  city of Ahmedabad, number of  other  S.Ps

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 48  

and/or  Magistrates  were available.  He  further  submitted that  P.W.  133 Sharad Kumar has failed to verify any  marks of  injury on the person of accused No.  4 before  recording the statement.  Hence, he submitted that it cannot be stated that  the  said statements are voluntary and  truthful.   In support  of  his contention, he referred to the decision  of this Court in Kartar Singh v.  State of Punjab [(1994) 3 SCC 569]  wherein  the Court has laid down  certain  guidelines, which  are  required  to be followed  so  that  confessional statement  obtained in the pre-indictment interrogation by a police  officer  not lower in rank than a Superintendent  of Police  is  not  tainted  with any vice  but  is  in  strict conformity  with the well-recognized and accepted  aesthetic principles  and  fundamental fairness.  The learned  counsel has  pointed out that despite the aforesaid suggestion,  the guidelines are not incorporated in the Act or the Rules.

     Mrs.   K.   Sarada Devi, learned counsel appearing  on behalf   of   Supreme  Court    Legal   Services   Committee representing  accused  no.2,  Mohd.  Sharief,  assailed  the version  of the prosecution and submitted that accused  no.2 wanted  to  leave  Pakistan  and   settle  in  Germany  and, therefore, he contacted a travel agent Chaudhary Altaf Ahmed and  sought  his help;  in July, 1992, Altaf Ahmed took  him and  another person to India by train via Attari border  and further  arranged  their  stay  at Delhi;   the  said  agent arranged  his visa and air tickets from Delhi and in August, 1992  when  the agent took him to the International  Airport (Delhi)  to  board a flight for Germany via Moscow,  he  was stopped  and  later on arrested;  that he has no  connection with recovery of arms etc.  and that there is no evidence to show an agreement between him and other accused to commit an offence.   The  learned counsel has further argued that  the confessional  statement  of  accused no.2  was  taken  under coercion  and  to  prove  this fact,  she  referred  to  two paragraphs  of  statement  of accused  no.2  recorded  under Section  313  Cr.P.C.  wherein accused no.2 has stated  that CBI  officials took him to Ahmedabad for producing before  a Magistrate;   he was not put any question by Magistrate;  he was  threatened  not  to make any complaint;  he  could  not arrange  any lawyer as he is a resident of Pakistan;  during his  custody he was forced to plead guilty but as he did not make  any  confessional  statement,  he  was  mentally   and physically tortured;  and that against this torture, he went on  hunger strike in May, 1994 for sixty days and thereafter on  considering  his deteriorating health condition, he  was shifted  to  jail  hospital.  The  learned  counsel  further pointed  out  certain  contradictions  in  the  evidence  of prosecution witnesses and sought acquittal of accused no.2.

     Mr.   R.B.  Mehrotra, learned senior counsel appearing on behalf of accused no.3 argued that confessional statement of  accused  is  not voluntary and not  in  conformity  with prosecution  case.   Therefore, it was not  admissible.   As such  it  belies the prosecution case.  If it is held to  be admissible,  its  reliability  may  be  tested  with   great caution.   He argued that as per the prosecution story,  the role  of  accused no.3 is very limited.  He is  charged  for creating  hideouts for accused no.1 at Ahmedabad for storing fire arms, ammunitions and explosives etc.  with the help of accused  no.4, Saquib Nachan, C.M.  Bashir (absconding)  and by  contacting  Amir-ul-Azim  (absconding) at  Bombay.   The learned  counsel argued that accused no.3 never visited  any place  in  India other than Bombay and his native  place  in district  Azimgarh (UP);  he has no link with accused  no.2;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 48  

and  that he is not concerned with the arms and  ammunitions stored  at  Ahmedabad or related to the bomb-blast  plan  of Madras  Stock  Exchange.  Accused no.3 never  purchased  air tickets  for accused nos.1 and 4 for Ahmedabad on  29.2.1992 from  Bombay.  Further, so far as the question of  telephone number  mentioned  at two flight coupons is  concerned,  the learned counsel contended that the maternal uncle of accused no.3  is  an  Islam Scholar, a social worker and  an  office bearer  of  many welfare Associations, therefore,  there  is strong  possibility that some one who had purchased the  air ticket might be knowing his maternal uncle and had given his telephone   number.    He  further   pointed   out   certain contradictions  in the statement of PW87 Sayeed Mohd.   Azim Varasi, who is the key witness against accused no.3 to prove his  visit  to Bombay.  The learned counsel  next  contended that so far as the receipt of amount by accused no.3 through Hawala  and  accused Amir-ul-Azim is concerned, there is  no independent  witness to prove the facts that it was received for the purpose of terrorists activities.  Moreover, even if this  money  is attributed to have been found  with  accused no.3,  it has no connection with the conspiracy of exploding bomb  or  fire-arms  etc.  for which the  accused  has  been charged under Section 3(3) of TADA Act.  Lastly, the learned counsel  argued that the trial court has given its  findings mostly  on  the  basis  of conjectures  and  surmises;   the judgment  does  not deal with the defence witnesses  and  is full  of discrepancies and factual errors;  the facts on the basis  of  which  the  conclusions  have  been  reached  and inferences  have  been drawn by the trial court actually  do not  exist  anywhere, neither in the deposition nor  in  the oral   or  documentary  evidence  and   not  even   in   the confessional  statements;  the say of CBI officers has  been taken  as  gospel truth and accused no.3 has been  convicted for  criminal  conspiracy  on  the  basis  of  philosophical reasons;  and, therefore, accused no.3 may be acquitted.

     Mr.   K.T.S.  Tulsi, learned senior counsel  appearing on  behalf of accused no.20 contended that the confession of accused  was  procured  after  he  was  stripped  naked  and severely  tortured for four days and the alleged  confession has  serious  discrepancies,  which   have  been  filled  up subsequently.   In the confessional statement, Aligarh has been  replaced  for Srinagar and that the certificate  has been  corrected by white ink where the name of accused no.20 Shoaib  Mukhtiar has been substituted for accused no.2 Mohd. Sharief.  The very fact that the name has been changed twice in  the  statement  creates  a serious  suspicion  that  the recording  of  the  confession may have been  a  mere  paper transaction.   Even  the  existence of gaps and  blanks  and change  of  the name of the city in the statement creates  a doubt  about  the  authenticity of the  alleged  confession. Further,  there is no oral or documentary evidence on record to  show  that accused no.20 in any manner aided or  abetted the  commission  of  any  terrorist act.  The  case  of  the accused  no.20  is completely at par with that of the  other accused  who  have been acquitted and there is no  point  of distinction on the basis of which the Designated Court could come  to  a contrary conclusion.  On perusal of  the  entire evidence  and  in  particular the statements of  PW43  Major Singh and PW87 Azim Varasi, it becomes self-evident that A20 was  not  even  aware of the conspiracy of accused  no.1  or others  to  commit any terrorist act.  PW43 has only  stated that  he  had  seen A20 in the company of  A1.   He  nowhere stated  that  in his presence any plan for commission  of  a terrorist  offence or any other offence was discussed.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 48  

learned  counsel  further  argued  that  the  confession  of co-accused   cannot   be  used    against   the   appellant, particularly  in the absence of any other evidence, oral  or documentary.  The confession is thus incapable of connecting the  accused  with the alleged offences.  He contended  that the  courts  do not begin appreciation of evidence from  the confession  of  a  co-accused  but consider  the  weight  of substantive  evidence and if possible, seek corroboration of the  same  from such confession.  He further contended  that the  Trial Court on the basis of confessional statement held [in  Para 159] that accused no.20 had also undertaken  once to  arrange for transportation of firearms but ultimately he could not succeed and there is not a whisper about the same by  any  of the witnesses.  Thus, if this fact  is  excluded from  consideration, the statements of PW43 and PW87 do  not take  the  prosecution  any  further   with  regard  to  the knowledge  of  terrorist activity of A1 or any of the  other accused.   Lastly,  the learned counsel contended  that  the Trial  Court  has misread the evidence of PW43 and  PW87  in coming to the conclusion that the A20 was a conspirator with A1,  A2, A3 or A4 and, therefore, A20 requires acquittal  in the instant case.

     Lastly,  it  was common contention of learned  counsel for  the  appellants that unless there is conviction of  any one  accused  under  Section 3(2), appellants could  not  be convicted  under  Section 3(3) of the TADA Act.   Mr.   P.P. Malhotra,  learned  senior  counsel appearing on  behalf  of State  (CBI) controverted arguments advanced by the  learned counsel  for  the accused/appellants and contended that  the totality   of  the  evidence   read  with  the  confessional statements  of  the  accused   establishes  that  they  were conspirators;   the  judgment  of the trial  court  is  well reasoned  and, therefore, the appeals of the accused require dismissal.

     On  the  basis of the submissions made by the  learned counsel  for the parties, the contentions raised by them can be  divided  as  under:   - 1.   Whether  before  convicting accused  under  Section 3(3) there should be  conviction  of someone under Section 3(2) of TADA Act?

     2.    Whether   confessional   statements   would   be inadmissible  in  the evidence on the ground that  (a)  they were  recorded by the investigating officers or the officers supervising  the  investigation;  (b) the accused  were  not produced  before  the Judicial Magistrate immediately  after recording   the  confessional  statements;    and  (c)   the guidelines  laid  down in the case of Kartar Singh  are  not followed?

     3.   Whether  there is any other evidence led  by  the prosecution  to  connect  the  accused  with  the  crime  or corroborating confessional statements?

     (1)  Whether  before convicting accused under  Section 3(3)  there  should be conviction of someone  under  Section 3(2) of TADA Act?

     The  learned counsel for the appellants submitted that the conviction of the accused under Section 3(3) of the TADA Act  is  illegal as none of the accused is  convicted  under Section 3(2) of TADA Act.  In substance it is contended that section   3(3)  does  not  contemplate   an  act  which   is independently  an offence, but it depends upon commission of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 48  

a  terrorist act as contemplated under section 3(1).  In our view,  this submission is without any substance if we  refer to  the language used in Sections 3(1) and 3(3) of the  Act. 3.   Punishment for terrorist acts.(1) Whoever with intent to overawe the Government as by law established or to strike terror  in  the  people or any section of the people  or  to alienate  any  section of the people or to adversely  affect the  harmony  amongst different sections of the people  does any act or thing by using bombs, dynamite or other explosive substances  or inflammable substances or fire-arms or  other lethal  weapons  or  poisons  or   noxious  gases  or  other chemicals  or by any other substances (whether biological or otherwise)  of  a  hazardous nature in such a manner  as  to cause,  or as is likely to cause, death of, or injuries  to, any  person  or  persons  or  loss  of,  or  damage  to,  or destruction  of,  property or disruption of any supplies  or services  essential to the life of the community, or detains any  person  and threatens to kill or injure such person  in order  to compel the Government or any other person to do or abstain from doing any act, commits a terrorist act.

     (2) Whoever commits a terrorist act, shall,--

     (i)  if  such  act has resulted in the  death  of  any person,  be  punishable with death or imprisonment for  life and shall also be liable to fine;

     (ii)   if   any  other   case,  be   punishable   with imprisonment  for  a term which shall not be less than  five years  but  which  may extend to imprisonment for  life  and shall also be liable to fine.

     (3)  Whoever  conspires  or  attempts  to  commit,  or advocates,   abets,   advises  or   incites   or   knowingly facilitates  the  commission of, a terrorist act or any  act preparatory  to  a terrorist act, shall be  punishable  with imprisonment  for  a term which shall not be less than  five years  but  which  may extend to imprisonment for  life  and shall also be liable to fine.

     (4)  Whoever  harbours  or conceals,  or  attempts  to harbour  or  conceal any terrorist act shall  be  punishable with  imprisonment  for a term which shall not be less  than five  years,  but which may extend to imprisonment for  life and shall also be liable to fine.

     (5)  Any person who is a member of a terrorists  gang or   a  terrorists  organisation,   which  is  involved  in terrorist  acts, shall be punishable with imprisonment for a term  which shall not be less than five years, but which may extend  to imprisonment for life and shall also be liable to fine.

     (6)  Whoever  holds any property derived  or  obtained from  commission  of any terrorist act or has been  acquired through   terrorist   funds  shall    be   punishable   with imprisonment  for  a term which shall not be less than  five years  but  which  may extend to imprisonment for  life  and shall also be liable to fine.

     The  aforesaid section provides for various acts which would  be  considered  as   terrorist  acts  and  punishment thereof.   It also provides for punishment of acts which are not  terrorist  acts.   Section   3(1)  enumerates   various activities  which  are considered to be terrorist  acts  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 48  

sub-section  (2)  provides  for  punishment  of  such  acts. Sub-section  (3)  contemplates acts which are not  terrorist acts  by  themselves, but activities prior or subsequent  to the  terrorist  act.   Under this section, a person  can  be convicted  if  it  is  proved that he  (a)  conspired,  (b) advocated,  (c)  abetted, (d) advised, (e) incited,  or  (f) knowingly  facilitatedthe commission of a terrorist act  or any  act preparatory to a terrorist act.  Any of these  acts by itself constitutes an offence.  Therefore, for conviction under sub-section (3), it is not necessary that there should be  a conviction under sub-section (2) for a terrorist  act. The  aforesaid activities are not only abetment of terrorist act,  but  include other acts which are not covered  by  the concept  of  abetment as provided under Indian  Penal  Code, namely, advocates, advises and any act preparatory to a terrorist  act.   Further, under TADA Act  Section  2(1)(a) defines  the  word abet in the wider sense as  under  2. Definitions(1)  In  this Act, unless the context  otherwise requires--

     (a)  abet,  with  its   grammatical  variations  and cognate expressions, includes

     (i)  the communication or association with any  person or  class  of  persons who is engaged in  assisting  in  any manner terrorists or disruptionists;

     (ii)  the  passing on, or publication of, without  any lawful  authority,  any  information likely  to  assist  the terrorists   or  disruptionists  and   the  passing  on,  or publication  of,  or distribution of any document or  matter obtained from terrorists or disruptionists;

     (iii)  the  rendering  of   any  assistance,   whether financial or otherwise, to terrorists or disruptionists.

     This  concept of making such activities as offence  is not  new  to the criminal jurisprudence.  Chapter V  of  the Indian  Penal Code provides for abetment and punishment  for the  same.  Section 115 deals with punishment in case  where abetted  offence  is not committed.  It inter alia  provides that  whoever  abets  the offence punishable with  death  or imprisonment  for  life  shall,  if   that  offence  is  not committed  in  consequence of the abetment, be  punished  as provided  thereunder.   Similarly, section 116 provides  for punishment  in  case where abetted offence  punishable  with imprisonment   is   not  committed.     Section   118   also contemplates  punishment  in  case   where  offence  is  not committed.   It  inter alia provides for punishing a  person who  conceals  design to commit an offence  punishable  with death  or  imprisonment  for life inter alia by any  act  or illegal  omission.   Similar  provisions   are  there  under Sections  119  and 120.  Hence, in our view, for  convicting the  accused  under Section 3(3), it is not  necessary  that someone   should  be  convicted   under  Section  3(2)   for commission of a terrorist act.  Therefore, the contention of the  learned  counsel  for the accused that  except  accused no.1-Lal  Singh,  no  other accused can be  convicted  under Section 3(3) is without any substance.

     (2) Admissibility of Confessional Statements:

     Next question would bewhether confessional statements are inadmissible in evidence because (a) the statements were recorded  by  the  investigating officers  or  the  officers

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 48  

supervising  the  investigation;  (b) the accused  were  not produced  before  the Judicial Magistrate immediately  after recording   the  confessional  statements;    and  (c)   the guidelines  laid  down in the case of Kartar Singh  are  not followed.  For deciding this contention, we have to refer to Section  15 of the TADA Act and flush out from our mind  the concept  evolved because of provisions of Evidence Act.  The confessional statement recorded by the Investigating Officer is  not admissible in evidence because of specific bar under Sections  25  and 26 of the Evidence Act.  When that bar  is lifted  by  the Legislature, it would be difficult  to  hold that such confessional statement is inadmissible.  For this, we  would  first refer to some part of the judgment  in  the case  of Kartar Singh (Supra) where this Court held that  if the   exigencies  of  certain   situation  warrant  such   a legislation  then  it is constitutionally permissible.   The Court  observed [in paragraphs 253,254 and 255] that in some advanced  countries  like United Kingdom, United  States  of America, Australia and Canada etc.  confession of an accused before  police is admissible and having regard to the  legal competence  of the legislature to make the law prescribing a different  mode of proof, the meaningful purpose and  object of  the  legislation, the gravity of terrorism unleashed  by the  terrorists and disruptionists endangering not only  the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctance of even the victims as  well  as  the public in coming forward, at the  risk  of their life, to give evidence, the impugned section cannot be said  to be suffering from any vice of  unconstitutionality. The  Court  further observed that if there is no  breach  of procedure and the accepted norms of recording the confession which  should reflect only the true and voluntary statement, then  there  should be no room for hyper criticism that  the authority has obtained an invented confession as a source of proof  irrespective  of  the truth and  creditability.   The Court  also observeda confession made by a person before a police  officer can be made admissible in the trial of  such person  not only as against the person but also against  the co-accused,  abettor  or  conspirator   provided  that   the co-accused,  abettor or conspirator is charged and tried  in the  same case together with the accused, namely, the  maker of  the  confession.  The present position is in  conformity with Section 30 of the Evidence Act.

     The  Court  finally held that it is entirely  for  the Court  trying  the  offence  to   decide  the  question   of admissibility  and reliability of confession in its judicial wisdom  strictly  adhering  to the law, it  must,  while  so deciding  the question, should satisfy itself that there was no  trap,  no  track and no importune  seeking  of  evidence during  the  custodial interrogation and all the  conditions required are fulfilled.

     In  view  of  the settled legal position,  it  is  not possible  to accept the contention of learned senior counsel Mr.   Sushil  Kumar  that  as the  accused  were  in  police custody, the confessional statements are either inadmissible in evidence or are not reliable.  Custodial interrogation in such  cases  is  permissible  under the law  to  meet  grave situation  arising  out of terrorism unleashed by  terrorist activities  by  persons  residing   within  or  outside  the country.   The learned counsel further submitted that in the present  case  the  guidelines suggested by  this  Court  in Kartar  Singh (Supra) were not followed.  In our view,  this submission  is without any basis because in the present case

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 48  

confessional  statements were recorded prior to the date  of decision  in  the said case i.e.  before 11th  March,  1994. Further, despite the suggestion made by this Court in Kartar Singhs  case, the said guidelines are neither  incorporated in  the  Act or the Rules by the Parliament.  Therefore,  it would  be  difficult  to  accept the  contention  raised  by learned  counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in  evidence,  should not be relied upon for convicting  the accused.  Further, this Court has not held in Kartar Singhs case  (Supra) that if suggested guidelines are not  followed then  confessional  statement  would   be  inadmissible   in evidence.  Similar contention was negatived by this Court in S.N.   Dube v.  N.B.  Bhoir and others [(2000) 2 SCC 254] by holding  that police officer recording the confession  under Section 15 is really not bound to follow any other procedure and  the  rules or the guidelines framed by the Bombay  High Court  for  recording the confession by a  Magistrate  under Section  164 Cr.P.C.;  said guidenlines do not by themselves apply  to recording of a confession under Section 15 of  the TADA  Act  and  it  is  for  the  Court  to  appreciate  the confessional  statement as the substantive piece of evidence and find out whether it is voluntary and truthful.  Further, by  a  majority  decision  in State v.   Nalini  and  others [(1999)  5 SCC 253] the Court negatived the contentions that confessional  statement  is  not  a  substantive  piece   of evidence and cannot be used against the co-accused unless it is  corroborated  in material particulars by other  evidence and  the  confession of one accused cannot  corroborate  the confession  of  another, by holding that to that extent  the provisions of Evidence Act including Section 30 would not be applicable.  The decision in Nalinis case was considered in S.N.   Dubes case (Supra).  The Court observed that Section 15  is an important departure from the ordinary law and must receive  that interpretation which would achieve the  object of  that provision and not frustrate or truncate it and that the  correct  legal position is that a  confession  recorded under  Section 15 of the TADA Act is a substantive piece  of evidence and can be used against a co-accused also.

     In  the  present case, undisputedly when  the  accused were  produced  before  the Magistrate they did not  make  a complaint  that  the confessional statements  were  recorded under  coercion.   Further,  Rule 15 of the  TADA  Rules  is complied  with  and each accused making the  confession  was explained  that  he was not bound to make it and in case  he makes  it,  it  could  be  used  against  him  as  evidence. Further,  the  officer  had also verified that  accused  was making   the   confessional    statement   voluntarily   and certificate  to  that  effect is also attached to  the  said confessional   statement.    For     its   reliability   and truthfulness,  prosecution  has  produced  on  record  other corroborative evidence, which we would discuss hereinafter.

     Once  it  is  held that  confessional  statements  are admissible  in  evidence, for decidingto what  extent  such statements  are  reliable  and  truthful  on  the  basis  of corroborative  evidence, we have to refer to the same.   The prosecution story revolves around accused no.1 and 2 and all charges  against  remaining accused are  inter-se  connected with both these accused.  Therefore, we would first refer to some  parts  of the confessional statements of A1-Lal  Singh and A2-Mohd.  Sharief.

     CONFESSIONAL STATEMENT OF A1-LAL SINGH.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 48  

     The  confessional statement of Lal Singh is exhaustive and  narrates the entire history of his activities from  his childhood  to the date of recording the said statement.   He stated  his  correct and assumed names viz.  Lal  Singh  s/o Bhag  Singh,  alias Manjit Singh, Iqbal Singh,  Aslam  Gill, Ashok Kumar, Kishore Pilot, Lalli, Raju, Veer Singh.  He was resident  of Village Nawapind and was born on 25.2.1960.  He failed  in  his Xth Examination.  In 1972, he got  made  his passport  there  by  inserting  his name as  Lal  Singh  and started  planning  to  go abroad.  He stated that  an  agent named  Billa,  who  was known to Kartar Singhs son  of  his village  took  him to Bombay for going to Italy in the  year 1978  and took Rs.5000/- from him.  Billa vanished in Bombay and  thus  he had to get back to his  village.   Thereafter, another  agent Nirmal Singh r/o village Dade P.S.   Fagwara, took  Rs.   10,000/- from him and he was sent to  Italy  via Delhi  along with other three boys.  There he worked in  the vessel  LEENA;  he used to work as Deck Boy;  he  stayed in this job from September 1978 to December 1979 and used to save  400 to 500 dollars.  He left this job in December 1979 and  went to Rome and started working with Gurnam Singh  and Major Singh (PW 43) in another vessel ALEXENDER.  There he worked till June 1981.  On June 1981 when the vessel reached Liverpool,  he  left the vessel along with Major  Singh  and other  boys  and came back to India.  He stated  that  Major Singh  was resident of Beeranwal Nawans.  After staying  for one  month  at  home,  he went to  Sophia,  the  capital  of Bulgaria,  along  with  Major  Singh where  they  worked  as Sailors.   From  there  they went to  Torrento,  Canada  and worked  there  till June 1984.  According to  him  Operation Blue  Star  had also taken in June 1984 and for this  reason there was resentment in the Sikhs.  During that time when he went  to Gurdwaras he heard many explosive speeches and that the  attack on the Golden Temple was strongly resented.   He had  narrated  his activities with regard to the  demand  of Khalistan  and that he joined Sikh organization giving  arms training like AK 47.

     In the present case, we are not concerned with all the facts  stated in the confessional statement and,  therefore, it is not necessary to narrate the same.  It is his say that in 1988 or thereafter he sought help from one Joginder Singh Sandhu,  [World Sikh Organisation leader of Surrey and  also the President of Rock Street Gurudwara situated at Vancuoer] to go to Pakistan because government of Pakistan was helping the  Sikh  students  who had gone there after  crossing  the border.   In Pakistan, he made contacts with smugglers whose names  are mentioned.  During that time, he came in  contact with  persons  working for ISI of Pakistan.  Thereafter,  he stated  about  forming  of an organization  namely  K-2  for carrying  out terrorist activities.  He also came in contact with  Sharief  (accused  no.2)  who  was  working  with  the military  intelligence  of Pakistan.  At that time,  he  was informed that Sharief was involved in terrorism in India and some   of  his  men   were  caught.   Subsequently,  Sharief introduced him to two persons who were smuggling weapons and explosives  in  India.   Finally,  it is  his  say  that  in November,  1991  when Daljit Singh Bitto was present in  his house,  one Amir-ul-Azim came with Tahir (accused no.3)  and introduced  him.  Amir- ul-Azim told him to go to India  and also  that Tahir was resident of Bombay and a faithful  man. It  is  his further say that in November, 1991 Sharief  came back to Lahore with Javed Yousuf resident of Kashmir who was living  in  Aligarh  and  they all  three  decided  to  work

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 48  

unitedly  for creation of Khalistan and for independence  of Kashmir.   Thereafter,  for him Mohd.  Sharief got  a  bogus passport  and obtained a visa in the name of Chowdhary Mohd. Iqbal  Ahmad  son  of Sultan Ahmad.  Both of  them  came  to Bombay  from  Lahore  via  Karachi by  Pakistan    Srilanka Flight.   The  passport and visa of Sharief was also  bogus. He  was  having  visa  for Calcutta in  the  bogus  name  of Mansoor.   After reaching Bombay they stayed at the  Airport and  from  there they went to International Airport by  Taxi and  from  there  they went to Calcutta by  morning  flight. After  reaching Calcutta they stayed in a Guest House and on the  next  date i.e.  on 14.12.1991 went for obtaining  stay permit for three months on Visa.  From Calcutta they came to Aligarh by train.  From station, they were straightway taken by  Barquat  Ali  Sajjad to Pees Villa  building,  Doodhpur, where  brother-in-law and Mama of Sajjad was staying.  After 4/5 days Javed Yousuf came there and helped him in getting a rental  house, wherein he alongwith Sharief started  living. There,  for  his contacts he was using telephone  number  of Saukat Alis P.C.O., who was a resident of Kashmir Karbar of Barullah  market.  Barqut Ali introduced him to a boy  named Shoaib  (accused  No.20).  He further contacted Major  Singh (PW  43) on telephone who runs taxi in Delhi.  In Feb., 1992 Devendra  Pal  Singh alias Deepak and Manjinder  Singh  Issi alias  Bhushan  came  to meet him and told  him  that  large number  of  weapons were to come in India and so  he  should manage  a truck.  He talked to Shoaib (accused no.20)  about the  truck  and  also gave Rs.10000/- for repairing  of  the truck,  which was damaged because of accident.   Thereafter, he  met Amir-ul-Azim, Press Secretary of Jamait-e-Islami  at Prof.   Amanullahs house at Aligarh.  Amir gave the address and telephone number of Tahir Jamal (accused no.3) of Bombay to whom he met earlier in Pakistan.  At the end of February, he  and Shoaib went to Bombay and contacted Tahir.  He  also met  Tahirs younger brother.  He asked Tahir about a  house at Ahmedabad for hiding weapons.  Tahir arranged his meeting with Raveesh @ Saquib (accused no.4), who accompanied him to Ahmedabad.   At  Ahmedabad, Raveesh introduced him to a  man named  Musahid who was having a hardware shop.  Musahid took a rented house for him in Juhapura Mubarak Society.  Daljeet Bitto told him over telephone to manage some big vehicle for hiding  large  quantity of weapons.  In March, 1992 he  sent Musahid  to Aligarh to collect Rs.50,000/- from Deepak.   In April,  1992 Deepak came at Ahmedabad with 2/3 lakh  rupees. Thereafter,  he took the flat C-33, Shantivan Paresh Society on  rent of Rs.1200/- p.m.  He also purchased Flat No.4-A in Usman  Harun  Society in Juhapura.  In the month  of  April, 1992  Bhushan went to Bombay to buy Zipsy.  He was  informed by  Pyara Singh and Guljar Singh, who came to Ahmedabad from Pakistan,  that  one  consignment  of weapon  was  to  come. Gulzar  Singh did not meet him but later on he came to  know that  Gulzar Singh in reality is Daljeet Bitto.  In May,  he received two consignments of weapons i.e.  one by Daya Singh and  second from the house of Karim.  Since, Karim and Akbar came  to  know about Gypsy number, so he sold the  same  and purchased  a Mahindra Jeep.  Thereafter, he came in  contact with  Rajbir.   Later on, Rajbir was arrested.  Deepak  told him  that  Rajbir  is  that  person  who  can  talk  to  the government  for  freeing  Jinda  by  kidnapping  the   grand daughter  of  Prime  Minister.  In June, 1992,  he  received another  consignment of weapons from the house of Karim.  He bought  a  new  Bajaj Scooter from Avish Auto.   He  further purchased a gypsy, earlier owned by Dhanraj Electronics.  On 30.6.1992 he along with Musahid came to Bombay by flight and stayed  at  hotel  Balwas.  They wanted to  meet  Raveesh  @

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 48  

Saquib.   During  the meeting, Raveesh enquired  for  giving weapons  and  also  for help in training his boys.   On  Ist July,  he alongwith Raveesh went to Madras.  Both stayed  at hotel  Woodland  in different rooms.  On 4.7.1992 they  came back  to  Bombay  by  flight.  Next day,  he  went  back  to Ahmedabad.   On 12.7.92 he went to Indore and from Indore to Gwalior.   There, he stayed with Harjeet Singh, a friend  of Major  Singh  of Delhi.  From Gwalior, he contacted  Pal  in America  and Major Singh in Delhi.  Thereafter, on 15.7.1992 he  left Gwalior for going to Bombay by train.  On 16.7.1992 when  he reached Bombay he was arrested.  He further  stated that  at  the time of his arrest, he was having  Rs.34000/-, 200  American  dollars, one bogus driving licence made  from Ahmedabad  and  a card on which phone numbers  were  written which was seized by the Police.  He was also having a cynide capsule,  which was not used by him because at that time the same  was in his purse.  This capsule was provided by I.S.I. Pakistan  to  meet  such  situation.  He  stated  that  they receive  25/30 lakhs annually from the Sikhs of USA,  Canada and England.  The amount was being collected and sent to the supporters  of Khalistan and other institution.  He received the  amount through hawala transaction.  He also stated that for  money  he contacted Satinder Pal Singh Gill in  Canada, Gurmeet  Singh  Walia in California, America,  Bhajan  Singh Bhinder,  California  and  Yadvinder Singh,  Jaswant  Singh, Basant  Singh,  Zafarwal, Jagjeet Singh Chauhan, Ajit  Singh Khera,  Mahal Singh Babbars and others from U.K.  He further stated  that  he  was receiving weapons likeAK  56  rifles, pistols,  explosives, timers, time bomb, rocket,  launchers, and ammunition.

     It   is  true  that  he   was  all  throughout   under interrogation of number of officers from various departments including  C.B.I.   but the story unfolded by him as to  his movements  in  India  after  December   1991  and  prior  to 12.12.1991  in Pakistan leaves an impression that the  facts stated  by  him  in  his statement  are  having  element  of truthfulness.   Major  part  of the relevant  confession  is corroborated by other evidence.

     CONFESSIONAL STATEMENT OF A2-Mohd.  Sharief.

     Likewise,  A2 Mohd.  Sharief has also given exhaustive confessional  statement  and narrated the entire history  of his  activities from his childhood to the date of  recording the  said  statement.   He  admits that he  is  a  Pakistani National  and  belongs to a well-to-do family.  In  January, 1987  he joined as Assistant Accounts Officers (Group 16) at Dera  Gazi Khan in Water Management Wing.  After few months, he was transferred to the Head Office at Lahore.  During his stay  at  Lahore,  he came into contact with  some  Kashmiri militants,  who  were collecting money from  Muslim  Welfare Organisations  and  prominent businessmen etc.  for  funding the  militants  operating  in Kashmir.   He  introduced  the militants  to  the  businessmen  of   Lahore  and  used  his political  influence to get help for the militants from  the business  community.  He visited India on 20th January, 1991 on  a valid passport and visa to visit Delhi in his  genuine name alongwith Syed Abdulla Siraji, who was infiltrated with an  assumed  name  of Ahmed Ali.  For infiltration  of  Syed Siraji  to India, he took help of his friend Javed Jaida,  a Customs  Clearing  Agent at Railway Station, Lahore.   After reaching  Delhi, he stayed at Qureshi Guest House and  there he came into contact with Furkan Ali @ Bubba r/o Saharanpur, who  was  a smuggler operating through Atari border.   After

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 48  

site  seeing  in Delhi, he returned to Pakistan by train  on 2nd  February, 1991.  In Feb., 1991 he met Sajjad Alam Raja, resident  of  PoKwho  was involved in  arranging  finances, weapons  and  support from the Pakistani authorities to  the militants operating in Kashmir.  He again entered into India on  12.3.1991, through Attari border on a new passport, with a  view to infiltrate four Kashmiri militants.  Out of four, only  one militant, Yakub could be infiltrated in connivance with  the  local  smugglers and Custom  authorities.   While staying  at  Qureshi  Guest House, he came in  contact  with Mohd.   Aslam and also Mohd.  Ayub Dar @ Ashfaq whom he knew from  Pakistan.   Mohd.   Aslam was  finding  difficulty  in completing  the  construction  work awarded to  him  by  the Indian  Oil  Corporation at Jet Air Base, Avantipur  in  J&K state.   Mohd.  Aslam sought his help in persuading Kashmiri militants  to  let  him complete the  work  unhindered.   He collected  copy  of feasibility report from Mohd.  Aslam  of the  construction work at Jet Air Base, Avantipur and passed on these documents to Military Intelligence of Pakistan.  On his  return  in  April,  1991.  Mohd.   Ayub  Dar  @  Ashfaq introduced  him  to  Tahir (accused no.3) and  Gullu,  local muslims  of  Delhi.  Tahir and Gullu were having  6-1/2  kg. explosives  and he advised them to explode the same with the help of remote control devices.  They told him that they had caused  bomb  blasts at Narula Restaurant, Connaught  Place, New  Delhi  and also in a Cinema Hall at Chandni Chowk.   In May,   1991,  he  was  asked  to  work  for   Pak   Military Intelligence   on  permanent  basis  to  which  he   agreed. Initially,  he was briefed by Pak MI to tell his family that he  was going to ISI as an Intelligence Officer and that  he was  to  be posted either in Saudi Arabia or Dubai.  Pak  MI gave him training in three phasesFirst phase from 11th May, 1991 to 2nd June, 1991;  Second phase from 15th June to 15th July,  Third  phase from 28/29th July to 29th August,  1991. After  completion of first phase of training, he met  Sajjad and  Khwaja  Moin-ud- din, SDO Water and  Power  Development Authority.   They discussed plans to help the Sikh militants with him.  They further introduced him to Lal Singh, who was operating  under  a  cover name of Iqbal  Gill.   Lal  Singh sought his help in arranging smugglers who could help him in the  smuggling  of  arms,  ammunition  and  explosives  from Pakistan  to  Punjab in India.  He agreed to help Lal  Singh and  arranged  his  meeting  with  Shera  Jat,  a  notorious smuggler.   On  6th June, 1991, Lal Singh along with  Daljit Singh  Bitto came to his house and he arranged their meeting with  Shera.   He  also  introduced   them  to  some   other smugglers.   He  alongwith  Sajjad and Lal Singh  formed  an organisation  called  K2,  which   stands  for  Kashmir  and Khalistan,  and  agreed  to work jointly in India.   As  per plan,  Sajjad  and his wife infiltrated into India in  early September,  1991  and  created  a hideout  at  Aligarh.   He himself  flew  for India on 8th October, 1991 by PIA  flight under  the  assumed  name  of Manzoor Ahmed  and  on  a  new passport.   At  Bombay,  he stayed in Hotel  Kalpana,  Grant Road.   Thereafter, on 17th October, 1991 he went to Aligarh and  met  Sajjad.  Sajjad told him that he was  in  constant telephonic  contact with Lal Singh.  Sajjad further informed him  that  Yasin,  Shoaib Mukhtiar  (accused  no.20),  Javed Yousuf  and Barkat Ahsani were constantly in touch with  him (Sajjad)  and  that  they  were  in  need  of  weapons   for accelerating  terrorist  activities   including  killing  of BJP/Hindu  leaders and police officials in India.  He  tried to get extended his visa from Delhi and Bombay but he failed to  do  so.  Thereafter, he returned to Aligarh;  burnt  his passport  and  decided to stay there in furtherance of  task

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 48  

given  to him.  From Aligarh, he was in constant touch  with Lal  Singh  and  Col.   Hafeez-ur-  Rehman  in  Pakistan  on Telephone  Nos.851981 and 586668 respectively.  He  returned back  to Pakistan on 8th Nov., 1991 to arrange  infiltration of  Lal  Singh to India.  With the help of  Chowdhary  Altaf Hussain, a Member of Provincial Assembly, Punjab (Pakistan), he  arranged a passport for Lal Singh in the assumed name of Iqbal  Ahmed.   He also got issued a fresh passport  in  his assumed  name of Manzoor Ahmed and also arranged a visa  for Calcutta.   At Lahore, Lal Singh told him about his  contact with   Amir-ul-  Azim,   Press  Secretary,   Jamat-e-Islami, Pakistan  and  that  he has been asked to tell  Tahir  Jamal (accused  no.3) of Bombay to arrange contacts in Bombay  and other   places   for   facilitating  terrorist   activities. Thereafter,  he  and  Lal Singh left Pakistan for  going  to India on 11th Dec., 1991 by Sri Lankan Flight.  In the early hours of 12th Dec.,1991 they reached at Bombay.  Thereafter, on 12th itself they took flight for Calcutta.  After staying for  two  nights at two different guest houses near  Railway Station,  Hawrah,  they  left for Aligarh by Kalka  Mail  on 14.12.1991.  At Aligarh, they went to the hideout of Sajjad. He along with Lal Singh, Devenderpal Singh @ Deepak, Amarpal Singh  @ Videshi and Shoaib Mukhtiar chalked out plans  with Javed  Yousuf, Barkat Ahsani and Yasin Malik to obtain  fire arms  for killing BJP/Hindu leaders and police officials  in India.   In the last week of Dec., 1991, Amir-ul-Azim, Press Secretary,  Jamat-e-  Islami, Pakistan visited  Aligarh  and introduced  him  and  Lal Singh to one Prof.   Amanullah  of Aligarh,  who  was  asked to provide  financial  assistance. Amir  also told them that he had given some amount to  Tahir Jamal  and  promised  to send more amount  to  them  through hawala  for  terrorist  activities.   In the  last  week  of January, 1992, Daljit Singh Bitto informed him and Lal Singh about  a  consignment of weapons coming to Jodhpur and  that arrangement should be made to collect the same.  They called Javed  Yousuf, Barkat Ahsani, Yasin and Shoaib Mukhtiar  for arranging  a  truck  for the purpose.  Shoaib  was  paid  an advance  of Rs.15000/- for arranging truck.  However, Shoaib could  not arrange the truck.  On 5th or 6th of March,  1992 Amar  Pal Sinh @ Videshi and Manjinder Singh @ Bhushan  came to  his  hideout at Aligarh and collected Rs.4  lacs,  which were  left by Lal Singh at his hideout at Dhora Mafi.   This amount   was   meant   for   purchase  of   jeep/truck   for transportation  of  weapons.  In March, 1992 he purchased  a Yamaha  100 CC Motorcycle from Aligarh in the name of  Javed Yousuf.    In   the   3rd  week   of   March,   1992,   Col. Hafiz-ur-Rehman  made  a  telephonic call directing  him  to leave  Aligarh as it was considered that Aligarh was no more a  safe  place for him.  On 26th March, 1992,  he  contacted Col.   Hafiz-ur-Rehman  in Pakistan, who informed  him  that Major  Suhail  and his four associates had been arrested  by the  Police  and that he should not go to Delhi and  Aligarh and  that  he should stay at Bombay.  On 2nd April, 1992  he returned  to  Aligarh to celebrate Id-ul-fitur  with  Shoaib Mukthiar,  Barkat  Ahsani, Javed Yousuf and Yasin.   On  8th April,  1992  police raided at the shop of Javed Yousuf  and arrested  him.   At  that  time, he  was  present  at  Javed Yousufs  house.   He  immediately   left  that  place  and, thereafter,  being accompanied with Shoaib Mukhtiar, he went to  Kathmandu by bus.  On 22nd April, 1992, in Kathmandu, he contacted  Pakistan authorities and leaving Shoaib alone  in hotel,  he went to Pakistan by Flight.  Again, on 22nd June, 1992  he left Karchi by air for Kathmandu.  In July, 1992 he contacted  two  persons,  namely Puran Bahadur  Mallah,  and Prakash  Chand Thakur, Ex.  Ambassador of Nepal to Japan and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 48  

former  Chief  Protocol Officer, Govt.  of Nepal, who  could provide persons for intelligence purposes.  In January, 1993 the   above   two  persons   infiltrated  into  India.    He infiltrated  on 8th January, 1993 and went to Gorakhpur.  He stayed  in  India upto 25th January and again went  back  to Kathmandu.   On  10th  February, he again  infiltrated  into India and returned to Kathmandu.  Thereafter, on 30th April, 1993  Col.   Rehman directed him to go to target  cities  of India.   On  3rd May, 1993, he left Kathmandu for  going  to India  and  in  the morning of 4th May, 1993 he  reached  at Gorakhpur in the assumed name of Pawan Kumar Sharma.  On 6th May,  he  reached Delhi and thereafter, he went to  Amritsar and  Pathankot and stayed there for some days.   Thereafter, he  was  again  directed  by  Col.  Rehman  to  go  back  to Kathmandu.   Lastly,  he infiltrated to India on  7th  June, 1993.   On  9th  June, 1993 he reached New  Delhi.   In  the morning  of 11th June, he went to Agra for seeing Taj Mahal. On  the same day, he came back to New Delhi.  At New  Delhi, he  saw  press  reports  that he was wanted  by  the  Indian Police.   Hence,  he  decided  to   leave  for  Nepal.    On 18.6.1993, he went to Railway Station for going to Gorakhpur and there he was arrested by the Delhi Police.

     From the statement, it transpires that till the end of February,  1992, the movements of accused Nos.  1 and 2 were between Aligarh and Bombay.  According to the story unfolded by accused nos.  1,2 and 20 and to certain extent by accused nos.   3  and  4,  accused nos.1 and 20 came  to  Bombay  in furtherance  of  their  activities.    Before  leaving   for Ahmedabad,  A1  and A20 were in Bombay and from  Bombay  A20 left  for  Aligarh.   A1  and  A4  came  to  Ahmedabad   and subsequently  to  Madras.  To prove their stay in  different hotels,  the  prosecution  has examined witnesses  from  the concerned hotels.

     (3) Other Evidence:  Before appreciating the evidence, we  would make it clear that if the confessional  statements are  accepted then it cannot be said that the conviction  of the  appellants is in any way illegal or erroneous, nor even the  learned counsel for the appellants tried for the  same. However,  in  the present case the  confessional  statements were recorded when all the accused were in police custody by the  CBI Officers who were supervising the investigation and after  recording  the statements, they were not  immediately produced  before the Magistrate.  Therefore, even though the confessional  statements are substantive piece of  evidence, to  appreciate  the contention that the said statements  are not truthful and reliable, other evidence produced on record including   the  evidence  which   corroborates   the   said statements is required to be considered.

     For the purpose of appreciation, other evidence can be divided  as  under:  - (a) Arrest of A1 on 16.7.1992 and  on the  basis of his interrogation, recovery of large  quantity of fire-arms, ammunitions and explosive substances.

     (b)  Hiring of C-3 Paresh Apartments and purchasing of building 4- A Usman Harum Society  stay of Accused No.1 and another person in the said premises.

     (c) Stay of A1 and A2 at Aligarh.  (d) A1 and A4 going together  at Ahmedabad and Madras and their stay in  various hotels.

     (e)  Air Flight manifestos mentioning the names of A1,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 48  

A2 and A4 for travels.

     (f)  Evidence against A2-Mohd.  Sharief.  (g) Evidence against  A3-Tahir  Jamal.   (h) Evidence against  A4,  Mohd. Saquib Nachan.  (i) Evidence against A20, Shoaib Mukhtiar.

     (a)   Recovery  of  large   quantity   of   fire-arms, ammunitions and explosive substances:

     Prosecution  has  examined  number  of  witnesses  for establishing  recovery  of  large  quantity  of  fire  arms, ammunitions  and  explosive  substance   from  C-33,  Paresh Apartments  and  4-A,  Usman   Harun  Society,  Juhapura  at Ahmedabad.   It is the say of the witness PW9 PII.C.   Raj, Ex.172  that  in July, 1992 he was working as PSI at  Chhani police  station, Baroda.  On 18th July, 1992, PW10 Mr.  A.K. Singh,  Dy.  C.P.  (North Zone), Baroda informed him that at Bombay  certain  terrorists  were apprehended  and  that  he should  go  there and interrogate them with regard to  their movements  in  Gujarat.   Mr.   A.K.    Singh  gave  him   a confidential  letter.  After reaching at Bombay, he met  Mr. Khan,  Addl.   Commissioner of Police of North Zone,  Bombay and  delivered  the  letter  given  by  Mr.   Singh,  D.C.P. Thereafter,  Shri  Khan  permitted him  to  interrogate  the accused at Santacruz police station.  He interrogated A1 Lal Singh on 22nd July, 1992 and recorded his statement.  He was sending information regarding interrogation at Baroda by Fax and  telephone.   During the interrogation of Lal  Singh  on 23rd  July,  1992  he  received  information  regarding  the weapons  kept  by  him at Ahmedabad.  After  completing  his interrogation,  he reached at Baroda on 28th July, 1992  and handed  over  the  statements recorded at  Santacruz  police station  and  his written report to Mr.  A.K.   Singh.   The prosecution  has  also examined PW10 Mr.  Anup  Kumar  Singh (Ex.174),  Dy.   Commissioner of Police, Baroda, who  stated that  in June, 1992 the Commissioner of Police Mr.   Hiralal got  an information that some terrorists including Lal Singh were  arrested  at  Bombay  and  were  confessing  regarding conspiracy of kidnapping of grand daughter of V.V.I.P.  from Pune.   He  also received information that main  leaders  of this  conspiracy Dipak and Vijay Pehlwan were operating from Baroda  and  other cities of Gujarat.  Thereafter, PSI  I.C. Raj  was  sent to Bombay for interrogating terrorists.   PSI Raj  was informing him from time to time about the  progress of  interrogation on telephone.  On the basis of information received  by him on 23rd July, 1992, he contacted the Police Commissioner  who  in  turn  talked  to  Mr.   A.K.   Tandon Director  General of Police, Gujarat State over telephone in his  presence.  Thereafter, Mr.  Hira Lal telephoned to  Mr. Surolia  (PW103)  who  was   Dy.   Commissioner  of  Police, Ahmedabad  in his presence and subsequently he talked to Mr. Surolia  and gave detailed information received by him.   It is  the  say of this witness that on 24th July, 1992 in  the late  hours at night he received information from Mr.   Hira Lal  that successful raids were carried out at Ahmedabad  on the  basis  of  the information given by him.  He  has  also produced  on record the report Ex.173 submitted by PSI  I.C. Raj.  PW-103 Mr.  A.K.R.  Surolia, Ex.548 has stated that at the relevant time he was S.P.  (CID Crime), State of Gujarat in  the police head quarters.  On 23rd July, 1992 Mr.   Hira Lal,  Commissioner  of Police, Baroda telephoned him in  the evening  and  told  him that accused Lal Singh  arrested  at Bombay  had  made certain disclosures regarding weapons  and some explosives at some places in Ahmedabad and so he should

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 48  

contact  DCP  Mr.  A.K.  Singh Baroda who would dictate  the details about the disclosures.  Thereafter, Mr.  A.K.  Singh informed  him that Lal Singh and his associates had lived at Ahmedabad  for quite sometime at two places i.e.  (1)  C-33, Paresh  Apartments,  Narayannagar, Paldi and (2)  4A,  Usman Harun  Society, Jhuapura, Ahmedabad, and it was likely  that arms,  ammunitions  and explosives were hidden in  the  said hideouts.   He immediately contacted Commissioner of  Police Mr.  M.M.  Mehta in his chamber who directed to work out the details  and  job of selecting a team.  He selected  PI  Mr. D.S.   Sangwan,  Astodia police station for the job and  the staff  under  his  control.   They located  the  places  and reported  to  him.  Thereafter, in the early hours  of  24th July,  1992  he  went to the areas with his team  and  after survey,  he kept some persons for a watch as the areas  were hideouts  for terrorists.  He also decided to carry out  the raids  in the said premises in the morning and instructed SI Mr.   Tarun  Barot (PW7) to arrange for two Panchas  and  to reach  at  Paresh Apartments.  It is the say of the  witness that  C-33, Paresh Apartments is a flat on 3rd floor  having two  rooms  and kitchen and it was locked but was opened  by breaking  open  the  lock.  In the  said  premises,  weapons including  AK  56  rifles, pistols, ammunitions  etc.   were found and seized after preparing recovery memo.  Thereafter, they proceeded to the second premises namely 4A, Usman Harun Society,  Juhapura, which was a small bungalow having ground floor.  It was also locked and after breaking open the lock, they  entered  into  the  bungalow and in  presence  of  the Panchas search was carried out and a large quantity of arms, ammunitions  and explosives etc.  were recovered.  It is his say  that  as the articles were bulky and in large  quantity they  called for bags, gunny bags, boxes etc.  from the head quarter  and  seized articles were sent to the head  quarter after  completing  the  panchnama, Ex.145.   Thereafter,  he directed  the  PI Mr.  Sangwan to lodge complaint.   In  the cross-examination,  he has stated that he first visited  the site  approximately  between  2.30 a.m.  to 3.00  a.m.   and thereafter  at about 10.00 am he went to the first premises. It is his say that he has not drawn any formal panchnama for breaking open the lock.  He further stated that it took 8 to 9  hours at Juhapura in raiding the premises and  completing the  formalities  of seizure.  He had denied the  suggestion that  he  had  not gone to Paresh Apartments and  4A,  Usman Harun  Society  at  the  time of raid  and  that  all  those muddamal  weapons  were lying with them as they  were  found unclaimed  or  the  case against Lal Singh is  concocted  by adjusting the lying mudamal.

     The  prosecution  has  then examined PW104  Mr.   D.C. Sangwan,  PI, Astodia Police Station, Ex.550.  It is his say that the police station was under control of DCP (South) Mr. Surolia.   On late night of 23rd July, 1992, DCP  instructed him to locate and verify Flat No.C-33, Paresh Apartments and 4-  A,  Usman Harun Society, Juhapura, Ahmedabad.  In  early morning  of  24th July, 1992 they located the  premises  and informed the DCP.  Thereafter, Mr.  Surolia visited both the premises.   A watch was kept and it was decided to raid  the premises  in the morning.  However, he could not be a  party to  the  raid because he was required in Sessions  Court  in connection  with one Sessions Trial but for sometime he  had gone  to  Paresh  Apartments after attending the  Court  and thereafter  again  he had gone to Juhapura at 1.30 p.m.   At that  time, weapons were found and the process of  preparing panchnama  was going on.  Panchnama was over at about  12.00 mid  night.   Mr.  Surolia directed him to lodge  complaint,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 48  

which  is produced at Ex.551.  It was sent for  registration of the offence at Vejalpur police station.

     PW7 Mr.  Tarun Kumar A.  Barot, PSI, Ex.161 has stated that in July, 1992 he was working at Astodia police station. At  about  12.30 at night Mr.  Sangwan, PI, directed him  to locate  C-33, Paresh Apartments at Paldi and B.No.4A,  Usman Harun Society at Juhapura.  After locating those places, DCP Mr.  Surolia and PI Sangwan were shown those places.  In the morning,  he had gone with two panchas at Paresh  Apartments in  a private vehicle.  At that place, DCP Mr.  Surolia  was present  and  on his instructions the lock of the main  door was broken in presence of the panchas.  During the search of the flat following arms and ammunitions were recovered:  -

     From Flat No.C-33:  1.  AK 56 rifles  4 2.  Pistols 2  3.  Cartridges of AK 56 rifles  200 4.  Transistor bombs operated by remote control 3

     Necessary  panchnama  was prepared and  after  pasting slips, seals were applied on the articles.  Thereafter, they went to Bungalow No.4A, Usman Harun Society, Juhapura.  Here also,  after breaking open the lock of the door, search  was carried   out  and  following   arms  and  ammunitions  were recovered:

     Recovery  from Bungalow No.4A:  1.  Rocket launchers - 4  2.  AK 56 rifles - 31 3.  Pistols with magazines - 12  4. Empty  magazines  of pistols - 1 5.  LMG without  mark  with wooden butt - 1 6.  Empty magazine of AK 56 rifles.  - 99 7. Empty drum magazines - 1 8.  82.2 grenade of small bulb type of  green  colour - 35 9.  H.E.  36 grenade - 12  10.   Hand grenades  fuse - 10 11.  Plastic explosives packets - 20 12. Packets  of explosives of black colour - 34 13.  Packets  of gelatine  explosives  - 34 14.  Paint tin of small size -  1 15.   Orbin  explosives sticks for rocket launchers - 8  16. Rockets  -  8 17.  Magnetics - 4 18.  Wire roll  for  yellow coloured explosives - 5 19.  Insulating rolls - 14 20.  Boby wire  tape  -  9 21.  Detonator bundles - 3  22.   Detonator plugs  - 14 23.  Cartridges of AK 56 rifles - 5213 24.  Fuse plastic rolls make M.700 - 14 25.  Hand Grenades - 10

     Further  2  biscuits of yellow colour metal like  gold were recovered and seized.  Outside the bungalow there was a scooter bearing No.GJ-1-P.9485 of Ash colour.  It is the say of  PW7 that after the panchnama was prepared, both  panchas had  signed on it in his presence and he had also signed the panchnama.   As arms and ammunitions were in large quantity, he had sent a van to the police head quarter to obtain boxes and  bags.   The  packets  of  the  arms  seized  at  Paresh Apartments  were  also  opened and arranged along  with  the articles  found at Juhapura.  The boxes and gunny bags  were sent  to  the  guard room of the police head  quarters.   In cross-examination,  he  had  stated  that  two  places  were located at 2.30 to 2.45 a.m.  and were shown to DCP.

     The evidence of the police officers with regard to the recovery of the weapons is fully corroborated by evidence of independent witnesses, namely PW4 Dharmesh Natwarlal Valera, Ex.137,  who  was studying S.Y.  B.Com at the relevant  time and  was residing at B-16, Paresh Apartments and PW6 Dharmen Harikirshnabhai  Dudhiya, Ex.144, who was panch of recovery. It is the say of PW6 that Mr.  Akhilesh Sureshchandra Bhagat was second panch, who accompanied him.  Recovery of arms and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 48  

ammunitions  was  noted in the panchnama and was  signed  by him.   Nothing  material has been found to  disbelieve  this independent  panch.  He has denied the suggestion that as  a clerk  he  had occasions to go for inventory or  for  taking possession.   He  has  admitted that he was  doing  seasonal business  of crackers and kites on the footpath on the  naka of  his  lane without licence.  He stated that there was  no occasion  of any quarrel with police in connection with  his doing cracker business.  There is detailed cross-examination of  this  witness  but  nothing   substantial  is  found  to discredit  his  say.   PW4 has stated that  A1  and  another accused  had stayed in Paresh Apartments for 4-5 months.  He further  stated  that  the persons staying  in  C-33  Paresh Apartments used to bring Maruti Gypsy of sky blue colour and that he had not seen them after the raids were carried out.

     In view of the aforesaid evidence, it is apparent that prosecution  has established beyond reasonable doubt that on the  basis  of interrogation of A1 Lal Singh at  Bombay,  by taking  prompt  action  police recovered large  quantity  of arms, ammunitions and explosive substances.  It is to stated that raids were carried out in presence of panchas and under supervision of S.P.  (CID{Crime}) Mr.  Surolia.  At the time of  hearing  of  these appeals, learned senior  counsel  Mr. Sushil  Kumar  submitted that the prosecution has failed  to establish  the recovery before the Court because  admittedly the  seals  which  were placed on the muddamal  articles  at Paresh  Apartments were removed at Juhapura when other  arms and  ammunitions  were  recovered at that  place.   He  also submitted  that  only one continuous panchnama was  prepared for  recovery of the said articles even though it is  stated that  articles  were recovered from two  separate  premises. He,  therefore,  submitted that arms and  ammunitions  which were  lying in the police station were utilized for  falsely implicating A1 Lal Singh.

     In  our  view,  there  is no  substance  in  the  said submission.   First seals, which were removed, were  affixed again at second premises after arranging and classifying the weapons.    Further,  there  is  no  reason  to   disbelieve prosecution  witnesses for the recovery of large quantity of arms,  ammunitions  and  explosive  substances,  which  were recovered  on  the basis of interrogation of A1  Lal  Singh. Immediate  action  was taken for locating the  premises  and after  locating the premises, raids were carried out by S.P. Mr.   Surolia.   Learned senior counsel has  also  submitted that  no  search  warrant was obtained prior  to  search  as required under Rule 14 of the TADA Rules.  He submitted that no  entry was made in the record despite the decision  being taken  to  raid the premises.  It is to be stated that  raid was  carried  out  by  S.P.  Mr.   Surolia  after  obtaining directions from Commissioner of Police Mr.  M.M.  Mehta.  He was  present  at the time of raiding the premises.   He  was also  present when panchnama was prepared for seizure of the articles.   Further,  the  learned  Judge  has  specifically observed  that  during  the examination of  the  panch,  PW6 Dharmen  H.   Dudhiya, each parcel was opened and panch  had identified  the  slips  which were affixed at  the  time  of sealing  of the parcel along with his signatures and of  the other  panch  Mr.   Akhilesh  S.    Bhagat.   He  has   also identified  the  seized  articles which were sealed  in  his presence  and  has described the premises which were  raided and  has  fully  corroborated Mr.  Surolia  and  Mr.   Tarun Barot,  with regard to seizure of the articles.   Therefore, alleged  irregularity  in mixing of the  articles  recovered

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 48  

from  Paresh  Apartments  and bungalow  No.4A,  Usman  Harun Society  would not in any way materially affect the  seizure of  the said articles.  It was the prosecution version  that in  order  to  classify the weapons or to  arrange  them  in category,  the  seals  which were affixed  at  C-33,  Paresh Apartments were removed and after classification of the arms and  ammunition,  they were re-sealed.  We would also  state that  in  the first part of the panchnama the recovery  from the  Paresh Apartments is mentioned separately and there  is no  reason to disbelieve the said part of the panchnama.  In view of the overwhelming evidence it appears that before the learned   Judge,   the  defence   has  not  challenged   the prosecution  evidence  qua recovery of arms and  ammunitions from  two  premises  but  they contended that  none  of  the accused  can be linked with the alleged recovery or with the conscious possession of any of the two premises.  Before the trial  Court  much  comment  was made  with  regard  to  the exhibition  of  the seized arms to the Press in presence  of the then Chief Minister of the State of Gujarat.  But in our view,  exhibition  of the said seized articles would not  in any  way  adversely affect the prosecution version that  the said  articles  were seized on the basis of the  information received after interrogating A1 Lal Singh on 23rd July, 1992 and  immediate  action  was taken by the  police  after  its receipt on the same night.  Further, PW8 Rupsingh, Ex.165, a Senior  Scientific  Officer  in   Central  Forensic  Science Laboratory  at New Delhi has inter-alia stated that on  28th August, 1992 his team started examining the seized articles, which  were  kept  in  boxes/bags at  Police  head  quarter, Shahibag,  Ahmedabad.   The inspection was carried  out  for three  days after checking the seals.  The seals were  found intact,  which  tallied with the specimen seals  of  Astodia police  station.  The report prepared by him is produced  at Ex.   167.  Further, all these arms were firearms as defined in  Arms Act, 1959.  In this view of the matter, it would be difficult  to accept the contentions of the defence  counsel that the seized arms and ammunition were not properly sealed or  were not kept at proper place.  The seized articles were kept  at  the  police  head quarters because  of  its  large quantity.  Hence, we hold that on the basis of interrogation of  A1 prosecution has proved beyond doubt recovery of large quantities of arms, ammunitions and explosive substances.

     (b)  Hiring of C-3 Paresh Apartments and purchasing of building  4-A Usman Harun Society  stay of Accused No.1 and another person in the said premises:  -

     To  establish  that A1 Lal Singh was in possession  of flat  at  Paresh  Apartments, the prosecution  has  led  the evidence  of PW2 Rohitkumar Rasikkumar Shah (Ex.107), who is having  a pan-bidi shop in the name of Shriram Pan  Centre in  Shantivan area on Narayannagar road.  It is his say that in addition to doing his business at Pan shop he was working as  a  broker for lease, purchase or sale of houses.  It  is his  further  say  that Bhupendra Ratilal Shah, who  is  his relative, was owner of C-33, Paresh Apartments and had given keys  to him for letting it out.  For this purpose, he had a talk  with  one  Tulsidas, who was also doing  the  work  as broker  for letting the houses.  He brought two persons  who were  in  need of the houses.  One was introduced to him  as Khanna having a plywood business at Delhi and other stated that  he  was  Raju.  In the Court, he identified  A1  Lal Singh  as  Khanna.   The flat was shown to  them  and  after taking a deposit of Rs.5000/- it was let out at monthly rent of  Rs.1200/-.  The keys of flats were handed over to  them.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 48  

He  further  stated  that the amount of rent  given  to  him alongwith  Rs.5000/-  was for the month of May and  Rajubhai came  twice  and paid rent for the months of June and  July. Police  raided  the  premises  on 25th July,  1992  and  his statement  was  recorded after 4 to 5 days at  Ellis  Bridge police  station.   Nothing  material has been found  in  the cross-examination   of  this  witness.   He  stood  to   the cross-examination  with  regard to the identification of  A1 Lal  Singh.  PW1 (Ex.102) Tulsiram Govindram has stated that at the relevant time he was doing the business of embroidery and tailoring.  He was also doing the work of Estate Broker. In  the month of April, 1991, two persons contacted him  for hiring  a  house.   One introduced himself as  Khanna  and other  as  Raju.  Both were speaking Hindi  language.   He took  them  to another broker Rohitbhai (PW2), who  was  his friend  and  after contacting Rohitbhai, Flat No.33,  Paresh Apartments  was  let  out  to them at the  monthly  rent  of Rs.1200/- and on deposit of Rs.5000/-.  He has identified A1 in  the Court as Khanna.  Prosecution has further examined PW3  Kantilal Jesingbhai Chauhan (Ex.108) who was working as a  Dhobi  (Washerman) and doing the business in the name  of Raj  Cleaners at Jivaraj Park on the naka of  Krishnasagar Society.   It is his say that one Maruti Wala was coming and giving  him  clothes  for washing and pressing.   Number  of bills  have  been produced on record.  He has identified  A1 Lal  Singh as Marutiwala out of two persons who were  coming at  his shop.  PW4 Dharmesh Natwarlal Valera (Ex.137) stated that  two persons came to stay in C-33, Paresh Apartments at the  end  of April, 1992 or in the beginning of  May,  1992. Mr.   Rohit Bhai Panwala got house let out to them.  He  has identified  one  man  as a tall with good height,  body  and smart  and  other man as short, shyam coloured and  having face  like  an angry man.  It is his say that they  used  to come and go at any time and used to come at late night also. Sometime  they used to come in a car or on occasions in auto -  rickshaw.   They used to bring Maruti gypsy which was  of sky  colour.   They  also  used to  keep  the  said  vehicle opposite  to his house.  Subsequently, the tall man  brought Maruti  gypsy of white colour bearing series of GJ-1-K.   He has identified A1 Lal Singh as white tall man.  This witness is totally independent.  He is a student and resident of the same apartments wherein A1 Lal Singh along with other person stayed.   There  is no reason to disbelieve the evidence  of this  witness with regard to identification of A1 Lal  Singh and  the fact that he brought Maruti gypsy of sky colour and thereafter  of white colour.  PW11 Pratikanother teen-ager, is  a  resident of C-34, Paresh Apartments and he stated  in the  same fashion and identified A1 as one of the  residents of C-33.

     PW39  Fulaji  Beharaji  Marwadi   (Ex.299),  Panch  of panchnama  of  seized  articles at  Paresh  Apartments,  has stated  that  he  was  called by  one  inspector  at  Paresh Apartments.   In  his presence, lock of the flat was  opened and  three  pairs of shoes, one lahanga and some  pieces  of photographs  were found there and the same were seized.  His signatures  were obtained on panchnama papers alongwith  the signatures   of  another  panch.   He  has  identified   his signatures.   He  identified the pair of shoes but he  could not identify the pieces of torn photographs.

     PW12  Nizamuddin  Imambhai Kureshi (Ex.177),  who  was working  as  Postman at Railwaypura Post Office,  Ahmedabad, stated that his brother-in- law, who was a lawyer had gifted house  No.4-A,  Usman  Harun Society to his  sister  (PW12s

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 48  

wife)  in  March,  1992.  They decided to  sell  this  house because  they  were  in need of money.  Hence,  he  informed Haidarbhai  Kureshi,  who was working as a broker,  for  the same.  After sometime Haidarbhai called him at his residence where  four  persons  were sitting.  Out of those,  one  was Haidarbhai, other was Anwarbhaianother broker and remaining two persons were introduced to him as Mohd.  Iqbal and Mohd. Salim.   Ultimately,  after bargain, the  consideration  for sale  of the house was agreed at Rs.53000/-.  He  identified accused no.1 as Iqbal.

     PW5  Hafdarhusain  K.  Kureshi (Ex.139) is a  resident and owner of Bungalow No.1, Usman Harun Society at Vejalpur. He  stated  that  Bungalow  No.4A was in  the  ownership  of Nizambhai Kureshi, who was staying at Juhapura and he wanted to  sell  the said house for a consideration of  Rs.60000/-. It  is his say that he was broker of purchasing and  selling houses  and  was also constructing the houses and one  Anwar Beg  used  to bring the customers.  He brought  two  persons namely Iqbal and Salim for purchase of the said house.  Both of  them  informed  him  that  they  were  having  transport business  and  that  their vehicles ply  between  Delhi  and Ahmedabad.   After  preliminary  talks, Nizam Bhai  and  two persons   were  called  at  7.00   pm  at   his   residence. Subsequently,  the sale was finalised and sale consideration was  paid.  He also stated that these persons were coming to the  house in Sky colour Maruti car and thereafter they  had brought jeep of Mahindra and Mahindra.  Their trucks used to come  there and they used to park in the open compound.   He has   identified   Iqbalbhai   as    A1   Lal   Singh.    In cross-examination,  he has admitted that in connection  with the  incident  of finding out of arms from his  Society,  he along  with  Anwarbhai was arrested but has denied that  CBI has  brought  pressure on him for deposing falsely.  He  has identified  mudamal jeep and scooter, which were used by the accused.    PW23   Gurumukh   Nebhandas  Harwani   (Ex.224), partner-Anand  Enterprises,  stated  that he is  dealing  in business   of  selling  refrigerators   and  appliances   in Ahmedabad.   He  has  proved  sale   and  delivery  of   one Kelvinator  refrigerator  to one Ashok Kumar Khanna and  has identified A1 Lal Singh as Ashok Kumar Khanna in the Court .

     PW24  Mr.   Ambalal, Hirdas Patel, Partner of  Dynamic Enterprise  (Ex.234),  Ahmedabad  stated about sale  of  one refrigeration  of  Zenith Brand of 165 litres to  one  Ashok Kumar  Khanna  0n  19.5.1992  by   bill  Ex.235,  which  was recovered from 4-A, Usman Harun Society.

     With  regard to the Mahindra Jeep, which was recovered from  Ahmedabad in an open plot behind Kureshnagar  Society, the  case of the prosecution is that the same was  purchased by  accused  no.1 and absconding accused Dipak alias  Manish Agrawal  and  some other absconding accused.  To prove  this aspect,  the  prosecution has examined three witnesses  i.e. PW64,  PW65  and  PW67.   PW64 Vinod  Kumar  Hiralal  Sharma (Ex.403),   businessman  of  Bombay,   stated  that  he  was registered  owner  of Mahindra Jeep (Model  No.540)  bearing Registration  No.MH-04-A2114, the registration book of which is Ex.404.  He sold this jeep to one Ashok Kumar Khanna, who was  introduced to him by one Daljit Singh Shetty of  Shetty Motors.  He further proved the delivery note of jeep Ex.405, which  was written by his brother-in-law.  PW65 Ramesh Kumar Ramashankar  Sharma  (Ex.407) is a practising  advocate  and brother-in-law  of  PW64.  He has deposed that he wrote  the writing  Ex.405  for  the purpose of sale of  Mahindra  Jeep

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 48  

(Model  No.540)  bearing Registration No.MH-04-A2114,  which was  owned  by PW64 Vinod Kumar Sharma.  The Jeep  was  sold through  one Daljit Singh Shetty alias Bablu Shetty, who was dealing  in  sale  and purchase of second hand  vehicles  at Bombay.    The   deal  was    settled   for   Rs.1,75,000/-. Rs.1,00,000/-  was  given cash and the remaining amount  was promised  to  be  given on sale of Maruti Gypsy,  which  was given  to Daljit Singh Shetty for sale.  The person who  has signed  as Ashok Kumar Khanna, buyer of the jeep was  having sufficient height and was also well built.  The other person accompanying  Khanna  was smaller in height.  He  was  shown photographs  Ex.255  for identification of purchaser of  the jeep  but he could not identify the person in photographs as one  of the persons who came with Daljit Singh Shetty.  PW67 Daljit  Singh  Tajinder  Singh  Shetty deposed  that  he  is dealing  in sales and purchase of new and old motor vehicles in  the name of Shetty Motors at Koliwada, Sayan,  Bombay. He  has  corroborated  the evidence of PW64  and  PW65  with regard  to the sale of Mahinder Jeep to one Mr.  Ashok Kumar Khanna  for  Rs.1,75,000/-.   He  has  deposed  that  Manish Agrawal  (absconding accused) had paid Rs.1,00,000/- in cash to  Vinod  Sharma  (PW64).  Manish had told him to  get  the vehicle  transferred in the name of Vijay Kumar alias  Ashok Kumar.   Manish  further told him to keep his  Maruti  Gypsy No.MH-01-8942  for sale of it.  After sale of gypsy, he  was required to pay Rs.75000/- to Vinod Sharma and the remaining amount  to  Manish Agrawal or Rajbir Singh  alias  Harvinder Singh.   On delivery note of Mahindra Jeep, Vijay Kumar  had signed  as Ashok Kumar Khanna and Rajbir, a witness,  signed as  H.   Singh.   On  26.5.1992, he  got  the  maruti  gypsy transferred  in his name.  On 6.6.1992 this maruti gypsy was taken away by anti terrorist squad police of Bombay from his office  by  saying that the same is stolen one.   On  seeing both  the photographs of Ex.255, he deposed that the  person in  both the photographs is Manish Agrawal, who indulged  in the  transaction  of  sale of Maruti gypsy and  diesel  jeep Mahindra through him.

     In  the deposition of above witnesses i.e.  PW64, PW65 and  PW67, there is no material contradiction with regard to sale of Mahindra Jeep to one Ashok Kumar Khanna.  It is also in  their  evidence  that Maruti gypsy was  handed  over  to Daljit Singh Shetty (PW67).  However, PW64 and PW65 have not identified  any  of  the  persons sitting in  the  group  of accused as Ashok Kumar Khanna.

     The  learned  counsel  for A1 submitted  that  as  the witness  PW5  Haidarhusain K.  Kureshi and  PW12  Nizamuddin Kureshi  were  taken  in  police  custody  for  the  alleged offence,  therefore,  under  police  pressure  they  falsely deposed  and identified A1.  He contended that there was  no reason for not executing a registered sale-deed in favour of A1  and, therefore, the entire story of selling the house in favour  of A1 by the wife of PW12 cannot be relied upon.  In our  view, at present, there is no question of deciding  the validity  of the sale in favour of A1.  The limited question iswhether  A1 got possession of the said premises from  its true  owner.  There is no reason to disbelieve PW12, who was working  as postman at Ahmedabad and PW5 who was a  resident of the same Society and was also working as a broker for the sale   or  purchase  of  the   houses.   They  are   totally independent witnesses.  May be, because at the initial stage they  were suspected to be involved in the said offence  but subsequently  as  no material was found they were  released, would  not  make their evidence inadmissible.  In our  view,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 48  

the aforesaid evidence clinchingly establishes that A1 along with  other persons occupied the aforesaid two premises from where  large  quantity  of arms, ammunitions  and  explosive substances were found.

     (c) Stay of A1 and A2 at Aligarh:  -

     To  prove this fact, the prosecution has examined PW43 (Ex.308)  Major  Singh who admittedly knows A1 since  years. He  has  inter alia stated that he was resident  of  village Virowal  of district Jalandhar and was staying at Delhi with his family.  His brother Harjeet Singh was serving in Indian Army  in Arms Regiment No.73 and his other brother  Mohinder Singh  was driving taxi.  He further stated that in 1978, he got  passport and went to Rome, where he joined the  service of  Golden  Union Shipping Company, as Assistant to  Sailor. There  he  met ten other Indian boys including A1 Lal  Singh who  was  a  Sailor  and who belongs  to  village  Nawapind, Akalgadh.    He  served  alongwith   him  till  May,   1981. Thereafter, they were sent to India.  Subsequently, he along with  Lal  Singh  and  others went to  Bulgaria  and  joined services in other ships.  It is his say that he served along with Lal Singh till January, 1984.  Thereafter, he came back to  India and started Taxi service.  He has stated about the previous  talks with Lal Singh, who was at Torranto, Canada. He  has  also stated that he was receiving  telephone  calls from  Lal  Singh  from 1986 to 1990.  In the year  1992,  he received  a  telephone call from Lal Singh at his  residence and  on enquiry, Lal Singh informed him that he was speaking from  Aligarh.  When he suggested to meet him, initially  he said  no  but  on his insistence he was given  address  of Aligarh.   At Aligarh, he was escorted by a Kashmiri looking boy.   Thereafter, he was taken in a house, where Lal  Singh was residing.  It is his say that at that time in his house, A2 Mohd.  Sharief and A20 Shoaib Mukhtiar were present, whom he  has identified in the Court.  Subsequently, he asked Lal Singh  that his name was involved in Air-crash.  To that Lal Singh  replied that he was not involved.  After sometime, he returned to Delhi.  Thereafter, he received a telephone call from Lal Singh that one Jaswant Singh would talk to him over telephone.   After  2-3 days, Jaswant Singh who was  talking from England told him that he was sending some luggage which he  should  hand  over to Lal Singh.   The  word  luggage, according  to  him,  was used for passport.   He  was  again informed  by  Jaswant Singh that the said luggage  would  be sent  along with one old lady aged about 55 to 60 years, who was  not  in  a position to walk and would be coming,  on  a wheel  chair, by air accompanied by a young girl and that he should meet them at the outer gate and inform the young girl that  he was Major Singh.  Thereafter, that luggage would be handed  over to him and he should pass it to Lal Singh.   He did  accordingly  and  got one  polythine  cover  containing khakhi  cover and a white shirt.  A British passport  having photograph of Lal Singh with French cut beard was also found by  him in the cover.  However, the name on the passport was of  Kumar.  On receipt of information from Lal Singh,  the said  luggage was handed over to one Deepak.  He  identified accused No.1 as Lal Singh.  He has identified his photograph on  a driving licence.  He has also identified photograph of A2  who was with Lal Singh when they met at Aligarh.  He has also  identified A2 and A20 in the Court.  He had denied the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 48  

suggestion that he had never met Lal Singh at Aligarh nor he received  any telephone from Jaswant Singh or secret  method in  which he received the luggage (passport).  Further, PW44 Harjit  Singh (Ex.309), brother of PW43 Major Singh, who was serving at Gwalior in Indian Army was examined to prove that A1  Lal  Singh  visited Gwalior as his guest  on  his  being introduced  as  friend of his brother.  He stayed  alongwith him  for three days and left for Bombay on 15th July,  1992. It is his say that he gave his name as Raju when he was at Gwalior.   He  further stated that Raju made telephone  call probably  at  USA  from  one STD booth  for  which  he  paid charges.  The witness has identified A1 as Raju who had been at   his  place  as  his   guest.   PW84  Mohd.    Shakatali Saiyadyakubali  (Ex.500)  stated  that he is a  resident  of Dodhapur,  Aligarh.   In  the year 1991, he  was  running  a STD/PCO booth in Shop No.2 on first floor of Barulla Market. He  was  having  STD and ISD facility.  He stated  that  one Javed  was  running  shop in the name  of  Kashmir  Corner nearby  his shop.  Javed was making trunk calls to  Srinagar from  his  PCO.  In November, 1991, Javed alongwith 2  to  3 persons  came to his PCO and requested to allow them to make trunk  calls, on his (Javeds) responsibility of making  the payment.   On inquiry, one of those persons told his name as Iqbal  Khan  and  another as Javed.  They were  also  making international  calls.   Initially,  they were  paying  cash. Later  on, they were using this facility on credit.  He  has proved  some  teleguard slips, which prove the  trunk  calls made  by the above persons.  He has identified Iqbal Khan as accused  no.1.   However, he could not identify any  of  the remaining  accused  as  Javed.  Another  independent  person examined by the prosecution to establish the stay of accused no.2  at Aligarh is PW86 Arifhabib Habibahmad (Ex.507),  who was  running a computer course at Aligarh.  He has  produced on  record  the form filled by Shaikh Javed on 6.1.1992  for getting training in six months computer course.  He has also produced  on  record the receipt of amount received for  the said  computer  course.   It is his say that  the  candidate attended  the  course  for 10 to 15 days and  thereafter  he left.   He  has identified Shaikh Javed, the person who  had enrolled  and attended the course for some days, as  accused no.2.   The documents bearing the signatures of accused no.2 are produced at Ex.508 and Ex.  509.

     The  evidence of PW43 Major Singh, who was knowing  A1 since  years clearly establishes the presence of A1, A2  and A20  at  the  house  of  A1  at  Aligarh.   PW86   Arifhabib Habibahmad  also  proves  beyond reasonable  doubt  that  A2 stayed  at  Aligarh and joined computer course run  by  this witness.   Similarly, PW44 Harjit Singh proves the  movement of  A1  from  Aligarh to Gwalior, who visited him  as  being friend  of his brother Major Singh.  This clinching evidence leaves  no  doubt  that A1 and A2 in  furtherance  of  their conspiracy stayed at Aligarh and were aided by A20.

     (d)  A1 and A4 going together at Ahmedabad and  Madras and their stay in various hotels:  -

     Before  considering  this part of evidence,  we  would refer  to the evidence of handwriting expert PW-116 Rajkumar Birsingh  Jain  (Ex.572),  Deputy   Government  Examiner  of Question  Documents  who  has examined various  hotel  bills having signatures of A1, A2 and/or A4 and also other entries made  in  the  register maintained by the hotels.   He  also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 48  

examined specimen writings of the accused.  PW116 has stated that  documents  of  the instant case were received  by  his office  by  four different letters of different  dates  from Superintendent  of Police, CBI, S.I.C.  II, New Delhi.   All these  letters were tendered in evidence by this witness  as Ex.573,  574,  575  and 576.  Exhibits 577 to  580  are  his reports.   Ex.577  relates to Q.3, Q.4, Q.8, Q.2, Q.6,  Q.7, Q.9,  Q.11 and Q.11/2 and Q.15 and Q.16.  Ex.578 relates  to Q.6A.  Ex.579 relates to Q.21, Q.21A, Q.22, Q.23 and Q.24.

     According  to his opinion Ex.577, the writer of S.1 to S.55Ex.397,  which  are  55 writings of accused  No.1,  Lal Singh,  also  wrote (Q.3) Ex.317, which is entry No.1567  of guests  register of hotel Sidhdhartha Palace  dt.29.2.1992, (Q.4) Ex.240 which is entry No.2058 dt.3.3.1992 in the name of  Iqbal  Ahmad in entry register No.3 of hotel  Butterfly, and  (Q.8) Ex.316, which is Bill of hotel Sidhartha  Palace, Ahmedabad.

     The  writer  of  S.56 to S.105Ex.464,  which  are  50 writings  of accused no.4, Mohd.  Saquib Nachan, also  wrote (Q.2)  Ex.315, which is entry No.1566 of guests register of hotel  Sidhdhartha  Palace  in  the  name  of  Mohd.   Hamid dt.29.2.1992,  (Q.6 & Q.7) Ex.480, which are entries No.1351 and  1352 dt.2.7.1992 of Arrival-departure register of hotel New  Woodland,  (Madras), and (Q.9) Ex.314, which is  carbon copy of cash memo in the name of Mohd.  Hamid.

     The  writer  of S.147 to S.184 Ex.466 and 499,  which are  specimen  writings of accused no.3, Tahir  Jamal,  also wrote  (Q.15 and Q.16) Ex.602 and Ex.603, which are the torn pieces of letter.

     As  per opinion Ex.578, the writer of S.1 to S.55, Lal Singh,  also  wrote  (Q.6A) Ex.259, which is  entry  in  the register of hotel Royal, Sarkhej, (Ahmedabad).

     Further, as per opinion Ex.579, the writer of S.185 to S.223  Ex.399, which are specimen writings of accused no.2, Mohd.  Sharief, wrote documents (Q.21 & Q.21A) Ex.440, which is  Disembarcation  card in the name of Ch.   Mohd.   Iqbal, (Q.22)  Ex.441, which is Disembarcation card in the name  of Manzoor  Ahmad, (Q.23) Ex.445, which is Embarcation card  in the  name of Manzoor Ahmad dt.8.10.1991, and (Q.24)  Ex.508, which  is  inquiry  form  for taking  computer  training  of I.C.P.C., Aligarh in the name of Shaikh Javed dt.6.1.1992.

     Aforesaid opinion lends assurance to what is stated by witnesses who have produced hotel Bills and other documents.

     PW46  Harish  Pursotamdas  Shah, Accountant  of  Hotel Sidhdharth  Palace, Ahmedabad, stated that he is working  in Hotel  Sidhdhartha Palace for the last 10 years;  the  hotel has  maintained  a Guest Register in a prescribed  form  and they were keeping Bill Books in duplicate;  original bill is given  to the customer and the duplicate is kept on the file of  the hotel.  On seeing the Ex.314 and Ex.  316, he stated that  these are the bills of the hotel, the back portions of which  are  signed  by him.  PW47 Manohar  Balvant  Narvekar Ex.313,   a  Receptionist  of   Hotel  Sidhdhartha   Palace, Ahmedabad   stated  that  in   their  hotel,  registers  are maintained  with regard to the check-in and check-out of the customers.   He has stated about the entry Nos.1566,  Ex.315 and 1567, Ex.317 made in the hotels register in the name of Mohd.   S  son  of  Hanif on  29.2.1992  and  Iqbal  Ahmed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 48  

respectively  and that both these persons stayed in hotel up to  3.3.1992;  they had put their signatures in the check-in and  check-out  columns of their respective  entries.   This witness  further stated about the bill Ex.316 issued in  the name  of Iqbal Ahmed and the bill Ex.314 issued in the  name of  Mohd.  Hamid.  Both these bills were prepared by him and these  bills also bear the signatures of both the  customers i.e.   Iqbal Ahmed and Mohd.  S.  Hamid.  He has  identified accused  no.1  as the person who stayed in the hotel in  the name  of  Iqbal  Ahmed and accused no.4 as  the  person  who stayed  in  the hotel in the name of Mohd.  S.  Hamid.   The handwriting  expert PW116 has opined that Lal Singh, accused no.1,  the  writer  of specimen writings S1 to  S55,  Ex.397 wrote  (Q.3) Ex.317which is entry No.1567 of guest register of  hotel  Sidhdhartha  Palace  dated  29.2.1992  and  (Q.8) Ex.316which is bill of hotel Sidhdhartha Palace, Ahmedabad. Both  these exhibits bear the signature of Iqbal Ahmed,  who was  identified  as  Lal Singh.   Likewise,  Saquib  Nachan, accused  no.4, the writer of specimen writings S56 to  S105, Ex.464  wrote (Q.2) Ex.315 which is entry no.1566 of  guest register  of  hotel Sidhdhartha Palace dated  29.2.1992  and (Q.9)  Ex.314  which is bill of hotel  Sidhdhartha  Palace, Ahmedabad.   Both these exhibits bear the signature of Mohd. S.  Hamid, who was identified as Saquib Nachan.

     PW30  Mohd.   Javed  Ex.258Manager  of  Hotel  Royal, Sarkhej, Ahmedabad stated that Iqbal Ahmed visited the hotel alone  on 3.3.1992 at 11.00 a.m.  and he checked out at 6.30 p.m.   on the very day.  He proved the visit of Iqbal  Ahmed on  seeing  the  entry No.206, Ex.259 made  in  the  hotels register.   He further proved the bill no.129 Ex.260,  which shows  that  Rs.100/- were charged from the  customer  Iqbal Ahmed.  He identified A1 Lal Singh as the person who visited the  hotel  as  Iqbal  Ahmad  on  the  relevant  day.    The handwriting expert opined that the signature on check-in and check-out  entries Ex.259 made in the register of the  hotel in the name of Iqbal Ahmed bear his signature.

     The  next witness PW25 Gulam Haidar (Ex.239),  Partner of  Butterfly  Hotel, Ahmedabad has stated about the way  of maintaining  the  record by the hotel.  He was  shown  entry register  of  the  hotel butterfly and on seeing  the  entry no.2058 (Ex.240) made therein, he stated that on 3.3.1992 at 7.00  p.m.   one Iqbal Ahmed came in the  hotel  accompanied with two persons, out of which one was a local person namely Mushahid.  He further stated that the customer stayed in the hotel  up  to 6.3.1992.  The check-in and check-out  entries bear  signature  of the customer.  The witness  stated  that hotel is also maintaining a separate bill book for STD calls made  by  the customers.  On seeing the bills no.704  Ex.244 and  Ex.   245, he stated that the customer Iqbal Ahmed  had made  telephonic  call  to  Aligarh  over  No.0571-28576  on 3.3.1992  and 5.3.1992 respectively.  He identified  accused no.1  as  the person who stayed in the hotel as Iqbal  Ahmed and  accused  no.3  Tahir Jamal as one of  the  persons  who accompanied  Iqbal Ahmed.  The handwriting expert PW116  has opined  that  signature  on check-in and  check-out  entries Ex.240  made  in the register of hotel in the name of  Iqbal Ahmed  bear his signature.  From the prosecution version, it appears   that   the  witness   has  committed  mistake   in identifying  accused  no.3  as  one   of  the  persons   who accompanied  Iqbal Ahmed as it is not the prosecution  story that  A3  Tahir  Zamal came to Ahmedabad  alongwith  accused no.1.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 48  

     PW77  Raghuvirchandra Amarnath Laher (Ex.469), who was General  Manager of hotel Grant, Bombay firstly stated about maintaining of record by the hotel and about the duty of the receptionist.   On seeing the entry No.59501 dt.28.2.1992 he stated about the entry of one guest namely Mr.  H.  Iqbala resident  of  Aligarh, in hotel Grant.  He  further  stated that  H.  Iqbal left the hotel on 29.2.1992 at 12 noon.   He has  further stated about Ex.470, which is receipt memo.  By this receipt memo, the register containing the entry made in the  name of H.  Iqbal was taken away by the CBI Officer  on 16.8.1992.    PW88  Sureshbhai   Ramnikhbhai  Master  Ex.515 receptionist  of  hotel Grant, Bombay, on seeing  the  entry no.59501,  Ex.516 made in the guest register stated that  on 28.2.1992  one guest Mohd.  Ikbal arrived at 14.00 hrs.   He has  stated that in the guest register, name M.  Ikbal  is mentioned  and  that he has come from Aligarh.  He left  the hotel on the next day i.e.  on 29.2.1992 at 12 noon.  He has identified  A1 as M.  Ikbal.  Even though the opinion of the handwriting  expert-PW116  is not positive yet there  is  no reason to disbelieve the evidence of PW88.

     PW79  Vishwanathan  Ex.479 Receptionist of  Hotel  New Woodland,  Madras  stated about visit of A1 and A4 in  their hotel  under  the name of Mohd.  S.A.  and Kishore Kumar  on 2.7.1992  at  6.00  p.m.  He further stated  that  both  the persons  left the hotel on 4.7.1992.  On seeing the  entries Ex.480 made on page no.131 of arrival register of the hotel, he  stated  that both the above persons were  allotted  room nos.1351  and  1352  respectively.  Both  the  entries  bear signatures of both the customers.  He has identified accused no.1  and  4  as the persons who stayed in  the  hotel.   He stated  that accused no.4 is the same person who had written entries  in  the arrival register of the hotel.   PW116  has given  positive opinion (Q.6 and Q.7) pertaining to entries, Ex.480, made in the arrival-departure register of the hotel, which  were  written by Mohd.  S.A., who was  identified  as accused no.4.

     To  prove  the  visit  of A1 and  A4  at  Madras,  the prosecution  has  further examined PW97 Shrinivas  Samugham, who  was  Security Guard at Stock Exchange Building,  Madras between  December, 1990 to September, 1993.  He stated  that on  3.7.1992,  he  was on duty at visitors gallery  on  4th floor of the building.  On that day, two persons came to the visitors  gallery and desired to go inside.  He  instructed them to obtain passes from 3rd floor.  Then the said persons obtained  passes and went inside.  After coming out from the visitors  gallery, they enquired about drinking water.   He told  them  that  water is available on 3rd floor  in  staff lunch  room.   Thereafter, they went away.  One of them  was looking  like  Punjabi and was having turban and  other  was having  beard and moustaches.  He has identified A1 as  that Punjabi  man  and A4 as Muslim like person.  With regard  to identification  of A1 and A4 much reliance cannot be  placed because of time lag.

     PW78   Silas   Benjamin   Ex.471    was   working   as Receptionist-cum- Cashier of Hotel Heritage, Bombay in July, 1992.   On seeing the entry at page no.637 of the guest book of  hotel Heritage, he stated that one guest in the name  of Kishor  Pilot arrived in the hotel on 4.7.1992 at 8.30  a.m. and he was allotted room no.404.  The entries in the guests register  were filled in by the guest and he was expected to check  out on 6.7.1992.  However, he checked out on 5.7.1992 at 11.00 a.m.  The guest registration card no.637 mark 86/44

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 48  

is  Ex.472.   The witness was not in a position to  identify Kishor Pilot.

     In our view, from the above said evidence, it is quite clear  that A1 and A4 stayed together in different hotels at Ahmedabad and Madras.

     (e)  Evidence  with  regard to record of  Air  Flights against A1, A2 and A4:-

     PW68 Shahjad Ex.433 is a Station Manager for Air Lanka (Airways)  at Bombay Airport.  On the basis of the  manifest Ex.434  of Karachi  Colombo (Via Bombay) flight No.  UL-182 dated  11.12.1991,  he  has stated that two  passengers  had travelled  in that flight under the names of Iqbal C.M.  and Ahmad  M.   PW69 Sudhakar Nivrutti Tilekar (Ex.436) is  sub- inspector  in the State of Maharashtra.  In the year 1991-92 he  was in the Special Branch-II (Immigration) in the office of  Commissioner  of  Bombay  and   was  posted  at   Sahara International  Airport.  He has deposed about the  procedure of  routine  check up of passengers.  He has proved  Ex.336, the  visa application form in the name of Ch.  Mohd.   Iqbal of  dated 26.11.1992.  PW70 Suresh Bapurao Gayakwad, Ex.443, Asstt.   Police  Inspector  Police Station  Matunga  stated that   in   October,   1991   he    was   working   as   Sub Inspector-cum-Immigration  Officer  at  Sahar  International Airport,  Bombay.   He has proved the visa form and  TRP  of Manzoor  Ahmad  (accused no.2) issued on 8.10.1991.  He  has produced  Ex.338,  which is visa application and  bears  his stamp   and   signature;    Ex.444   TRP   and   Ex.445   is disembarcation card.  Ex.445 card was tendered before him by the  passenger  and he put his stamps on the same.   He  had also  put  the R.P.  No.36740 dated 8.10.1991 on  the  card. PW82  Shyam Prahlad Huilgol, Controller Reservation,  Bombay has  been  examined  by  the   prosecution  to  prove   that passengers  Chaudhari Ikbal and Manzoor Ahmad had  travelled from  Bombay  to  Calcutta  by flight  No.IC-175  (Bombay Calcutta)  dated  12.12.1991.   He was  controller  of  that flight  on  the  relevant day.  He has proved  the  manifest Ex.496  and  that  Chaudhari  Ikbal and  Manzoor  Ahmad  had travelled  at  Sl.  Nos.62 and 35 respectively.   PW71  Mrs. Pushpa  Shantaram, a Senior Traffic Assistant of Indian  Air Lines has stated that she had prepared passengers manifest, Ex.452          of                 flight          No.IC-133 (Bombay-Ahmedabad-Indore-Bhopal-Bombay)   and     that   two passengers  named  Mohd.   S.   (A4) and Ikbal  M  (A1)  had travelled  from  Bombay  to  Ahmedabad  by  that  flight  on 29.2.1992.   Similarly,  PW35 Nikhil Mahendrakumar  Bhavsar, Traffic  Assistant of Indian Airlines, had made the manifest of  passengers  of Flight No.IC604 (Ahmedabad   Bombay)  on 3.3.1992 and has proved travelling of one person named Mohd. S.   (A4)  in  this flight from Ahmedabad to  Bombay.   PW37 Jagdishbhai  Karsanbhai  Baria,  Sr.  Traffic  Assistant  of Indian Airlines proved the entries at page no.3 of passenger manifesto  of  flight  no.  IC614  (Ahmedabad-Bombay)  dated 30.6.92  stating  the  names  of Mr.  K.Kumar  and  Mr.   M. Hussain  in  the  manifest.  PW72 Shaikhmohmad  who  at  the relevant   time  was  working  as  Senior  Traffic   Asstt., Santacruz  has  stated from the Manifest of Passengers  for IC-613  that  on  1.7.1992-one  passenger  in  the  name  of Hussain M had travelled and was having two way ticket i.e. Ahmedabad-Bombay  Sector.  PW73 Mrs.  Vrinda Jairam  Shetti, who  at the relevant time was working as Traffic  Assistant, Santacruz  produced  Passenger  Manifest of  IC-171  Bombay Madras  Sector and stated the travelling of one passenger in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 48  

the  name  of Kumar K. from Bombay to Madras in  the  said flight on 2nd July, 1992.

     Aforesaid evidence lends assurance to the confessional statements  of A1, A2 and A4 for their travel from one place to  another  in different fake names.  (f) Evidence  against A2, Mohd.  Sharief:-

     PW136  Dharampal Singh, who was Dy.  S.P.  CBI in  SIC Branch,  New Delhi at the relevant time, stated that he took over the investigation of RC.6.(S)/92 on 11.11.1992.  During investigation,  he  arrested  accused   Mohd.   Sharief   on 19.6.1993,  who  was initially arrested by Delhi  Police  in some  other crime.  He applied for the custody and remand of accused   Mohd.    Sharief,  which   was  allowed   by   the Metropolitan  Magistrate,  Delhi.    During   interrogation, accused   Mohd.    Sharief  expressed   his  wish  to   give confessional  statement  voluntarily and, therefore, he  was produced  before P.C.  Sharma, SP CBI, SIC II, New Delhi  on 8.7.1993  and  his confessional statement was recorded.   A2 has confessed that he is a Pakistani national and ISI agent. He  visited India several times in different fake names.  He also disclosed that the entire conspiracy was hatched by him alongwith  A1 Lal Singh and others as narrated earlier.   He inter  alia  stated that he was arrested by Delhi Police  on 18th  June, 1993, when he went to Railway Station for  going to  Gorakhpur.   His statement was recorded after  prolonged custody  at  Lal  Qilla  and constant  physical  and  mental torture.   As per his say, firstly he visited India on  20th January,  1991  on  a valid passport in  his  genuine  name. After  reaching  Delhi,  he stayed at Qureshi  Guest  House. Thereafter,  he returned to Pakistan in February, 1991.   He again  entered into India on 12th March, 1991 through Attari Border  on a new passport.  Again he stayed at Qureshi Guest House.   He  returned in April, 1991.  Pakistan MI gave  him training  in three phases.  Thereafter, he came to India  on 8th  October,  1991 by PIA flight under the assumed name  of Manzoor Ahmed and on a new passport.  At Bombay he stayed in Hotel  Kalpana  at  Grant  road.   Thereafter,  he  went  to Aligarh.   He  returned  back to Pakistan on  8th  November, 1991.  Again he along with Lal Singh left Pakistan for going to India on 11th December, 1991 by Sri Lankan Flight.  After reaching  Bombay,  they  went  to  Calcutta  by  flight  and subsequently  went  to  Aligarh on 14th  December,  1991  by train.  Finally, he came to India on 7.6.1993.  On 9th June, 1993  he reached New Delhi.  When he was leaving for  Nepal, he  was arrested on 18th June, 1993.  To prove the entry  of A2  Mohd.  Sharief in India in the month of March, 1991, the prosecution  has  examined PW52, Ex.334  Mr.   Surendrasingh Kartarsingh  Kadian, who was serving as Upper Division Clerk in  the Ministry of External Affairs of Central  Government. He  has  produced visa application Ex.  340 and carbon  copy Ex.341   dated  5.3.1991  having   photograph  of  A2  Mohd. Sharief.   There  is no reason not to accept  the  aforesaid original  documents  produced  on  record.   We  would  only mention  that  the  learned counsel for  the  appellant  has contended  that  photograph on the said applications can  be substituted  and  that  there is no evidence that  the  said photographs  are  of  A2.  In our view, this  submission  is without  any  substance because it is difficult  to  believe that  official  record can be tampered by  substituting  the photograph  of A2 on the original visa application.  In  any case,  for  that purpose there is no basis.  Secondly,  with regard  to  the photograph accused has not disputed  and  on behalf  of  accused  no  such suggestion  was  made  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 48  

witness.

     The   prosecution  has  also   examined  PW60   Ex.379 Navalkishore  Jayadayal Asstt.  PSI, Delhi CID Pak  Section, who  has  stated  that he was maintaining the  register  for arrival  and  departure  of  persons who  were  coming  from Pakistan.   Entry  No.833,  Ex.380  in  the  said   register pertains  to Mohd.  Sharief son of Umardin which is in  hand writing  of  SI Bhup Singh.  This entry Ex.380  corroborates Ex.340  and  Ex.341.  It also shows that Mohd.  Sharief  was staying in Qureshi Guest House.  For proving the stay at the Qureshi  Guest  House,  the prosecution has  examined  PW51, Ex.327  Dilavarhussain Sardarali, who stated that he  joined the  service at Qureshi Guest House situated in Bazar Chitli Kabar,  Jama Masjid, Delhi, as Manager-cum-Receptionist from 1990  till  1992.   He  stated  that if  a  passenger  is  a foreigner,   the  entries  are  required   to  be  made   in foreigners  register  and  if   foreigner  is  a  Pakistani national,  hotel  has  to  submit one  C  form  containing necessary  information  to CID Pak Section, New  Delhi.   He further  stated  that in the said Guest House, most  of  the foreigners  were  Pakistani nationals and some of them  were Bangladeshi.   On  reception  counter, they  were  verifying three  things  (1) passport, and the necessary  endorsements made  on  it, (2) temporary permit issued in small slip  and (3)  visa  document.   They  were further  verifying  as  to whether  the  initial visa was for Delhi and if the visa  or first  permit is of Delhi, only then they were allowing  the passengers  to stay in their guest house.  This witness  has established  the stay of A2, Mohd.  Sharief at Qureshi Guest House,  who  came  to Guest House on 16.3.1991 and  left  on 5.4.1991.   Thereafter,  Mohd.   Sharief again  visited  the Guest  House  on 10.4.1991 and left on 15.4.1991.  He  again arrived  at Guest House on 20.4.1991 from Madras and left on 21.4.1991.  Entries in this regard were made in the register of Guest House.  He has further stated about visit of Furkan Ahmad  son of Mohmad Ismail and Khurshidabegam, the  alleged relatives  of Mohd.  Sharief, to the Guest House on 26.3.199 and  of  Mohd.   Ashfak on 21.4.1991.  On  that  day,  Mohd. Sharief  was  not  having  money with  him.   Mohd.   Ashfak assured  the  Guest House officials including PW51  that  he will  make  the payment within couple of days.   Thereafter, Mohd.   Ashfak  was  arrested and the amount  due  to  Mohd. Sharief  was deducted from his (PW51s) salary by the  owner of  the Guest House.  He has identified A2 as  Mohd.Sharief, who  had  stayed  in his guest house.   Further,  as  stated earlier,  his  stay  at Aligarh is also established  by  the evidence  of  Major Singh PW 43 and PW 86 who was running  a computer course at Aligarh.

     (g) Evidence against A3, Tahir Jamal:-

     Tahir  Jamal,  A3  in his confessional  statement  has stated  that  he worked in SIMI as President, Secretary  and Treasurer  in  different periods.  He has stated that  after his  retirement  from  SIMI, when he was in Lahore,  he  was introduced   with   Amir-ul-Azim,     Press   Secretary   of Jamait-e-Islam,  Pakistan with whom he had discussion  about political  situation  in  India and  Pakistan,  particularly problems  of  Punjab and Kashmir where terrorism  continued. Next  day  he was introduced with Iqbal who was speaking  in Punjabi.   His photograph was shown to him and he identified him  as  the same person who had been introduced to  him  in Lahore.   Amir-uI-Azim  wanted him to help him in India  for hiring  a house for him.  He went to Karachi from Lahore and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 48  

then came to Bombay in December 1991 for Conference of SIMI. He  went  to  see  off Amir-ul-Azim  at  Delhi  Airport  for Karachi.   While en-route, Amir-ul-Azim asked him to help in publicity  of  cause  of Kashmir habitants and  gave  him  a packet  of  money  saying  that it would be  useful  in  the proposed  activity.  The packet contained 1700 pounds  which he  took  and  came back home.  Then he went to  his  native place,  village Liandih in January 1992 and came back in the end  of  the month.  After return, his brother Jaffar  Jamal told  him that one Iqbal had tried to contact him repeatedly from  Aligarh.   He  has stated that he called  him  at  his residence  where he came with one more person called Swab. Then  Iqbal  requested him to hire a house at Ahmedabad  for safe keeping of weapons, explosives smuggled into India from Pakistan for terrorist activities.  He also told him that he would transport the weapons to Punjab and Kashmir in trucks. Iqbal  also  stated that this matter should be kept  secret. Next  day he shifted Iqbal to Hotel Grant and went to  the house  of  Sakib.   He  told   Sakib  about  Iqbal  and  his requirement  of  a house at Ahmedabad.  He brought  the  air tickets  for  Iqbal  and  Saquib.   After  about  one  week, Amir-ul-Azim  telephoned him that he was sending Rs.5  lakhs for  a  house at a place near Paydhoni Police  Station.   He reached the place and collected Rs.5,80,000/- .  Next day he went  and  met Saquib and informed him that money  had  been received  and gave him Rs.1 lakh.  He spent some amount  and Rs.   2,15,000/-  was kept in the almirah.  Then he went  to his  village and came to Bombay after Ramzan Id.  and  again went  to his village for some marriage.  From there he wrote a letter to his brother Jaffar through Asif and sent the key of  the  almirah  saying that out of the  money  in  almirah Rs.1,00,000/-  should be given to Saquib and the balance may be  kept  back.  It was also conveyed that there  were  1700 pounds   in  the  almirah  which   should  be   kept   safe. Thereafter, he was arrested by the police from his village.

     His   statement  gives  the   account  of  income  and expenditure  incurred  in  the   activities.   The  fact  of recovery of 1700 pounds and substantial cash is mentioned in the  statement.  The opinion of hand writing expert PW116 as regards  Ex.   602 (Q.5) and 603 (Ex.6) is  positive.   PW83 Gulamhasa  Habibulla Ahengar was working as a Branch Manager of  J&K  Bank at Ahmedabad and in his presence the  specimen hand writings of A3 were taken.  He has identified A3 as the person  who  had  executed  the  specimen  writings  in  his presence at Karanj Bhavan, Ahmedabad.

     PW135  Jafar Jamal Ex.676 is brother of A3 Tahir Jamal and  a resident of Millatnagar, Andheri (West), Bombay.  His native  village  is Luniadih of District Azamgarh,  UP.   He came  to Bombay in 1982 and shifted to Millatnagar,  Andheri (West).   It  is  his say that he was staying  in  the  flat belonging  to his maternal uncles son.  His maternal  uncle was  also having another flat.  His brother Tahir Jamal  was residing  with his maternal uncle.  For sometime, Tahir  had gone to Delhi but he was not knowing that for what reason he had  gone there.  He has stated that his brother Tahir Jamal was  connected with SIMI and was Secretary of SIMI at Delhi. He  further gave some names of his brothers companions like Salim Khan, Ibrahim and Saquib Nachan (A4).  In August, 1992 he came to know about arrest of his brother Tahir Jamal.  He has  stated that on 12.8.1992 the CBI Officers raided  their house  after  the arrest of Tahir and recovered some  papers and  diaries  relating to Tahir.  With regard to the  seized documents,  he admitted his signatures on Exhibits 601,  602

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 48  

and  603, which also bear the signatures of Ariff and Ansar. In  the cross-examination by Public Prosecutor, he denied of having  produced  Rs.90000/-  in Indian  Currency  and  1700 pounds  before  CBI  Inspector.  It is his say that  he  was detained  and interrogated by the police at Santacruz police station, Bombay and at Ahmedabad for some days in connection with this case.

     PW127  Harbhajanram  Shantaram, Dy.  S.P.-CBI,  S.I.C. II  Branch,  New Delhi, stated that on 14th August, 1992  he took  over the investigation of RC No.5-S/92 from Mr.   M.K. Zha,  Dy.  S.P., who was camping at Bombay.  He further took over  the custody of five accused including accused no.1  of this  case, who was in custody at Santacruz police  station. On 21.8.1992 he recovered papers relating to sale of vehicle No.MH.01.8942 from Daljit Singh Shetty (PW67).  On 26.8.1992 he, accompanied with Inspector Mr.  J.C.  Prabhakar, carried out  search  of  the house of Jafar Jamal  for  recovery  of certain  amount.   The  search  was carried  out  under  the instructions   of  DIG  Mr.    M.L.   Sharma.   Jafar  Jamal requested not to carry out search and agreed to handover the amount  and other incriminating documents.  Jafar Jamal took out  Rs.90000/-  and  1700 pounds and some  pieces  of  torn letters.   Thereafter,  Jafar accompanied him  to  Santacruz police station, where he handed over the amount, torn pieces of letters and two pieces of paper by affixing the same on a paper.  Pieces of papers were written in Urdu Script.  Jafar Jamal  read  over those papers and Sub-Inspector  of  Bombay police  wrote  the same in Hindi.  A production memo  Ex.601 was  prepared for pieces of papers and currency notes, which is  signed  by  Jafar Jamal and two witnesses  namely  Mohd. Aarif  and  Ansar Ahmad.  He and Inspector  J.C.   Prabhakar also  put  their signatures on the same.  He further  stated that  torn  pieces  of letter affixed on a plain  paper  are Ex.602.   The  two pieces of paper are Ex.603.   He  further stated that he formally arrested Lal Singh in this case i.e. RC.6-S/92.   He has denied the suggestion that during police remand  of  Lal Singh any third degree method  was  adopted. Rather, accused Lal Singh had tried to cut his tongue by his own  teeth and tried to hit his head with iron bars of  lock up  room.  Doctor was brought for treatment of Lal Singh and two  CBI  officers  were posted in the lock up room  of  Lal Singh for his safety.

     According  to  the  prosecution, Tahir  Jamal  A3  was mainly  dealing  in  financial transactions and  as  contact point.   The  amount  of Rs.90,000/- and  1700  pounds  were recovered  from his house.  The prosecution has further  led the  evidence  that  on  12th August,  1992  Flat  No.6/208, Almadina Apartments was raided by CBI officers and from that place  they recovered some papers, diaries and the documents written by A3 Tahir Jamal.  The relevant document upon which reliance  is  placed to connect A3 is Ex.602.  It is in  the form  of  a letter written in Urdu addressed to his  brother Jafar  Jamal.  This letter inter alia mentions that work  is in  progress and that they were facing money crises.  It  is also  written that witness should not pay to Saquib from the fund  of  karobari.   Under torn pieces of letter,  it  is mentioned  that one envelope may contain 18 to 1900  pounds, which  is  an exclusive property of one gentleman, only  his exclusive property.  PW87 Syed Mohd.  Azim Varasi, a totally independent  witness also establishes that A3 was  connected with A1 and A20.  He has also deposed that A20 had asked him to  contact  his friend Tahir Jamal, A3 and thereafter  they met at Bombay Central Railway Station.  Shoaib Mukhtiar, A20

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 48  

introduced  A1  Iqbal  and  A3 Tahir Jamal  to  him  as  his friends.

     (h) Evidence against A4, Mohd.  Saquib Nachan:-

     He  has  stated in his confessional statement that  in 1981  he joined SIMI and during his association with SIMI he came  in  contact  with Tahir Jamal, A3.   During  1990,  he visited  Pakistan  twice.   His  real purpose  was  to  meet Salahuddin  Sudani and Abdur-Rahim-Rasool Sayyef to  discuss ways  and means to train Muslim youths in arms,  ammunitions and  explosives.   Till 1991 he was sending Sikh  youths  to Pakistan  for military training.  Throughout this period, he was in touch with A3.  In December 1991 he came to Bombay to attend  SIMI Conference where he met Amir-ul-Azim along with Bashir  and Tahir.  Azim told that Iqbal would meet them and asked  them to arrange hideouts for him at Ahmedabad so that the weapons which were to be smuggled from Pakistan could be safely  stored.   In  February 1992, he had gone  to  Masina Hospital,  Byculla  where Tahir Jamal- A3 came  looking  for him.  He told him that Iqbal had come to Bombay and met him. He  was  supposed  to  go to Ahmedabad and  that  he  should accompany  him.   He met Iqbal at Grant Hotel where  he  was staying  and discussed Ahmedabad plans.  On 29.2.92, he  and Iqbal left for Ahmedabad.  On reaching there, they stayed at Sidhdhartha  Hotel in separate rooms booked in their  names. On  3.3.92, Iqbal asked for change of hotel, so they shifted to  Hotel Butterfly where Iqbal took one room and he went to Bombay.   At  the end of June 1992, Iqbal arrived  at  Hotel Balwas,  Bombay.   His  photograph was shown to him  and  he identified  that  photo  as  that of Iqbal and  he  put  his initials on it also.  He met Iqbal who asked him to look for a person at Madras who can help him in blowing up the Madras Stock Exchange.  On 2.7.1992, he along with Bashir and Iqbal left  for  Madras by I.A.  Flight.  He and Iqbal  stayed  in Woodland  Hotel.   Next  day  they all  surveyed  the  Stock Exchange  Building  and Iqbal told them in detail about  his plan  of blowing it up by means of a remote controlled bomb. Since,  he was not feeling well, he expressed a desire to go to  Bombay.  Iqbal agreed to come with him and told him that whenever he has to contact him, he should ring up one Sharma in  USA introducing himself as Raveesh.  After some time  he came  to  learn  about  Iqbals  arrest  in  Bombay  through newspapers.   Apprehending his arrest, he absconded till  he was arrested.

     Prosecution  has established that A4 accompanied A1 at Ahmedabad  and stayed along with him in hotels, that too  in different  fake names.  Prosecution has also led evidence of his travels from Bombay to Ahmedabad and Ahmedabad to Bombay lending  assurance  to  his confessional statement  that  he travelled by air from Bombay to Ahmedabad and from Ahmedabad to  Bombay by producing passengers manifests.  Flight coupon Ex.450  and  Entry  No.1567 in the guest register  of  hotel Sidhdhartha at Ahmedabad in the name of Mohd.  S.  have been proved beyond reasonable doubt by the prosecution in support of  their case.  Further, prosecution has produced  evidence regarding  their stay at Ahmedabad, i.e.  registers and bill books  of  various  hotels  signed by A1  and  A4.   By  the evidence  of  PW79 Vishwanathan, Receptionist of  Hotel  New Woodland, Madras, prosecution has established that A1 and A4 stayed in that Hotel.  The entries of register Exs.  315 and 317  (mark Q-2 and Q-3) were sent to the handwriting expert.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 48  

PW75, the handwriting expert has proved his signatures.  The entries  Ex.315  and  Ex.317  also stand  proved  by  PW116. Further, A1 and A4 had travelled in fake names and came from Ahmedabad on 29.2.1992.  If A4 was not at all connected with A1  there  was no necessity of travelling together  in  fake names.   In  travel  manifest  Ex.452,  the  name  which  is mentioned as Mohd.  S. is proved by Ex.450.

     (i) Evidence against A20, Shoaib Mukhtiar:-

     A20  Shoaib Mukhtiar in his confessional statement has stated  that he was a resident of Aligarh.  In the month  of February,  1991  Barkat Ahsani came to Aligarh and opened  a shop known as Ahsani Colour Lab.  He was friendly to Mohd. Mujib Shamshi and Mohd.  Habib Shamshi who were residents of Chowk  Sheikh Dawood in Aligarh.  Through these two  persons he  came  to  know Barkat Ahsani.  Before  opening  shop  in Aligarh,  Barkat Ahsani was doing business in Srinagar.   He shifted  his business to Aligarh because of disturbances  in Srinagar.   He  started visiting the shop of  Barkat  Ahsani alongwith his friends Mujib and Habib.  He was introduced to Javed Yousuf by Barkat as his friend.  Javed had also opened a  shop.   He had come to India to create a situation  which could  destabilize the Govt of India in the States of Punjab and  Jammu  and  Kashmir.   Sometime in the  third  week  of December 1991, when he had gone to Barkat Ahsanis house, he found  two  persons sitting with Barkat Ahsani.   They  were introduced  to  him  as Javed and  Iqbal,  businessmen  from Pathankot.   After  2/3  days he took them to  their  house. Then  they  started meeting frequently and he came  to  know that  Javeds real name was Mohd.  Sharief and that  Iqbals real  name was Lal Singh and they were the same persons  who had  formed  K-2 for the purpose of destabilizing Govt.   of India  particularly  in the States of J & K and Punjab.   In the  month of September/October 1991, in the shop of  Barkat Ahsani,  he  was introduced to Sajjad who talked  about  the atrocities on Muslims in India.  He has again stated that in the  house  of Javed Yousuf, they agreed to procure  weapons for  killing BJP/Hindu leaders/Police Officials in India  so that  they may strike terror amongst the people and alienate Muslims  from  Hindu  community.   Knowing  their  terrorist activities,  on  their  request,  sometime  in  the  end  of December  1991  or  in the beginning of Jan.   1992  he  had arranged  accommodation for Lal Singh and Mohd.  Sharief  in the house of Amir Hassan at New Sir Syed Nagar, Aligarh.  In 1992,  he had arranged for another accommodation for them as the  earlier  was not found to be good by them.   He  stated that in the house of Lal Singh and Mohd.  Sharief, they made plan to obtain fire arms for committing terrorist activities including  killing  of  BJP leaders, Police  Officials;   to locate  houses  at different places in India for  concealing weapons, for increasing terrorist activities in India and to recruit  young  boys for going to Pakistan for  training  in handling  of weapons etc.  In the last week of January  1992 or beginning of February 1992, Lal Singh, Mohd.  Sharief and Salim  informed him that large consignment of weapons was to be  collected from Jodhpur and for collecting the weapons  a truck   was  immediately  required.    Lal  Singh  gave  him Rs.10,000/-  and  requested  to  arrange  a  truck  for  the purpose.   Despite  his efforts he could not arrange  for  a truck.   On 27.2.92, he and Lal Singh left Aligarh by  Gomti Express  for  Delhi.  Thereafter, Mohd.  Sharief  and  Javed Yousuf  met  him.  Mohd.  Sharief gave them two tickets  for Bombay and in the evening of 27.2.92, they left New Delhi by Rajdhani  Express  for  Bombay.  On  28.2.92,  they  reached

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 48  

Bombay  Central Railway Station and hired a taxi and went to Tahir  Jamals  house  from where he contacted  Mohd.   Azim Varasi on telephone who was working in Tarapore Atomic Power Project  as  Scientific  Officer.  Azim Varasi met  them  at Bombay  Central Railway Station.  There Lal Singh gave him a ticket  for Aligarh and told him that Shafiq @ Deepak  would be  coming  to Bombay and that he should go to  Aligarh  and help Mohd.  Sharief and Deepak to look after their interests in  Aligarh.   On  2.3.92, he reached Aligarh where  he  met Mohd.   Sharief.  It is stated by A20 that on 10/11.3.92  he and Deepak came to Delhi by train and proceeded to Bombay by the evening flight.  He requested Azim Varasi to arrange one room  flat for Shafiq at Bombay.  For one week, they  stayed at  the house of Varasi.  Varasi arranged for a room  (flat) through  a  property dealer at a monthly rent of  Rs.1100/-. They  left Bombay on 17/18.3.92.  In April 1992, he received a  call  from Lal Singh at his residence that he  wanted  to talk to Mohd.  Sharief and Javed Yousuf next day.  He called them  the next day at his residence where Lal Singh informed them   that  the  consignment  of  arms,   ammunitions   and explosives would be arriving Ahmedabad shortly and that they should be ready for receiving the same and also to strike at the  targets.   On  9.4.92, he and Mohd.  Sharief  left  for Muradabad  enroute to Nepal after getting the news of arrest of  Javed  Yousuf.  On 14.4.92, they reached  Kathmandu  and stayed  in  Hotel Ice Land.  From Kathmandu he  returned  to Betia on 17.4.92 and stayed for 2 weeks.  From there he went to  Pune.   During his stay at Pune, he got  financial  help from  Kamal  Mehboob and Anand Pratap Singh.  From Pune,  he went  to Kathmandu sometimes in the end of March 1993.  From Kathmandu  he reached Gorakhpur on 15.1.94 to his  relations house,  i.e.  Iqbal Ahmed, Advocate and stayed till 17.1.94. He  was  arrested by Gorakhpur Police on 18.1.1994.  In  his confessional statement, he has stated that he was aware that A1  was interested in the creation of Khalistan and A2,  who is  Pakistani  national,  was interested  in  separation  of Kashmir  and that A1 and A2 were interested in  transporting fire-arms  and explosives.  His presence at the house of  A1 in  company of A2 at Aligarh and his meeting with A1 and  A3 at  Bombay is established by leading evidence of independent witnesses.

     PW43  Major  Singh has specifically stated that  along with  A1 and A2, accused No.20 was also found at Aligarh  at the  house of Lal Singh.  PW87 Sayeed Mohd.  Azim Varasi,  a Scientific  Officer  in  Tarapur Power  Project  Group  with Nuclear  Power  Project Corporation of India at  Bombay  has stated  that  he  was knowing Shoaib  Mukhtiar-A20,  who  is resident of Aligarh.  He became friend of Shoaib Mukhtiar at Aligarh  and during his study of B.Sc.  Engineering, he took help  from Shoaib Mukthiyar.  In 1991, he shifted to Bombay. Whenever  he used to visit Aligarh, he used to meet  Shoaib. In  December,  1991  he received a call from Shoaib  in  his office  from Bombay asking him to contact his friend,  Tahir Jamal,  at  Millatnagar.  But since it was not possible  for him  to  contact  Tahir Jamal A3, they decided  to  meet  at Bombay  Central Railway Station.  Shoaib Mukthiyar was there alongwith his friends.  Shoaib introduced Iqbal-A1 and Tahir Jamal-A3  as his friends.  Thereafter, he (PW87) and  Shoaib went  to  meet  M.N.  Ansari, uncle of Shoaib  and  his  two friends  went away at some unknown place.  They took  dinner there.  He has further stated that he met Shoaib in January, 1992  and  thereafter, Shoaib met him again in the month  of March,  1992 alongwith his friend Shafik Ahmad.  They stayed with  him  for  about five to six days.   They  were  having

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 48  

samples  of  locks  etc.  with them  for  business  purpose. Shoaib  and  Shafik  were  in need of one  room  house.   He arranged  one  house  for them through  one  broker  against payment  of  Rs.16000/-  on  account  of  advance  rent  and brokerage.   After  some days, Shoaib made call to  him  and asked  to  cancel  the  said  rent  deal.   He  has  further identified  A1 as Iqbal and and A3 as Tahir Jamal.  It is to be  noted  that the witness has specifically stated that  A1 and  A3  were introduced by A20 as his friends.   IN  SUCH CASES,  TO WHAT EXTENT BURDEN OF PROOF IS ON PROSECUTION?  : In   the  light  of  the   aforesaid  evidence  led  by  the prosecution  next question for consideration iswhether  the accused have been rightly convicted.

     At  this stage, we would reiterate submissions of  Mr. Sushil  Kumar, learned senior counsel for A1 and A4, that A1 Lal  Singh was arrested on 16.7.1992 by PW56 in CR 423/92 of Santacruz  Police Station but the case was registered  prior to  his  arrest.   A1 was interrogated by PW9  at  Santacruz Police  Station  on  22.7.1997 and his  statement  was  also recorded but no FIR was registered.  A1 made a confession to PW128  on  12.9.1992 and report under Section 169  CrPC  was submitted  on 10.12.1992 in RC 5 but there is no evidence on record  of the same.  He was never told that his  confession may be used against him in TADA Case.  Further, confessional statement  is  not  recorded in CR No.423/92.   He  has  not stated  about  his visiting Madras Stock Exchange and  about his  getting the places with the help of A4, where arms were recovered.   The  submission of learned counsel that A1  has not  stated in his confessional statement about his visit at Madras   after  verification  of   the   said   confessional statement,   appears   to  be   incorrect  because  A1   has specifically stated that he along with Ravesh and his friend went  to  Madras by flight and stayed at different rooms  in hotel  Woodland.   They came back to Bombay on  4.7.1992  by flight.

     Further,  we would state that presuming that there  is some  irregularity  with regard to the recording of  FIR  it would  not vitiate recording of his confessional  statement. The  report  under Section 169 CrPC submitted in  RC5/92  on 10.12.1992 has no bearing on the present case.  Further, for this  purpose  there  is evidence of  PW56  Shamrav  Baburav Jedhe,  Sr.   P.I.  Crime Branch, CID, Greater  Bombay,  who stated  that  at the relevant time he was posted  as  Police Inspector in Anti Terrorist Squad, North Region, Bombay.  In the  year 1985, there was a bomb blast of Kanishka Air Craft in  Canada  and  Lal  Singh  was wanted  in  that  case  and intelligency  had provided photographs and other information of  Lal  Singh  to them.  On 15.7.1992, Mr.  A.   A.   Khan, Addl.   P.C.   directed  him to arrest Lal  Singh,  who  was reported   to  be  coming  at   Dadar  Railway  Station   by Dadar-Amritsar  Express on 16.7.1992 at 5.00 a.m.  After due preparation,  they  apprehended  Lal   Singh  outside  Dadar Railway  Station.  Lal Singh told his name as Keshore Kumar. In  the  presence  of two panchas namely  Mohd.   Imran  and Stivan  Fransis,  he took personal search of Lal  Singh  and prepared  panchnama  Ex.350, which bears his  signature  and signature of both the panchas.  The driving licence found in the  pocket of Lal Singh, which was issued by RTO, Ahmedabad in  the  name  of Keshore Kumar was also  seized,  which  is Ex.351.   The visiting card of Hotel Samrat, Ahmedabad found in the purse of Lal Singh is Ex.352.  He further stated that he  recovered  Rs.30664/- and 200 American dollars from  the possession  of Lal Singh.  He has identified A1 Lal Singh as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 48  

the  person who was arrested by him.  Thereafter, Lal  Singh was  taken  to Santacruz Police Station and he was  arrested for  the offence C.R.  No.423/92, which was registered prior to  the  arrest of Lal Singh as he was wanted in that  case. Further,  PW124 Mithileshkumar Avadhnarayan Zha, who at  the relevant  time was Dy.  S.P.  C.B.I.  New Delhi stated  that the investigations of RC.5.S/92 and of the instant case were being  conducted simultaneously.  In any case, if these  are considered   as   irregularities,  the   same  are   of   no significance  as  they  would  not in  any  way  affect  the prosecution  case.  As stated earlier, qua A1 the  evidence, apart  from his confessional statement, is in abundance.  In short,  during his interrogation it was revealed that in two premises  at Ahmedabad, he had kept large quantity of  arms, ammunitions  and explosive substances.  The evidence on this aspect  is  that of police officers with regard to the  raid and  seizure.   Apart from the evidence of  police  officers including SP A.K.R.  Surolia (PW103) who conducted the raid, with regard to the stay of A1 in the said premises, there is evidence   of  independent  panchas   which   supports   the prosecution  version.   For  hiring of  the  premises  C-33, Paresh  Apartments  and  for  purchasing of  the  house  4A, Usmanharun   Society,  Ahmedabad,   there  is  unimpeachable evidence  on record.  Further, prosecution has led  evidence with  regard to the stay of A1 and A4 in hotels at Ahmedabad and Madras.

     For  A2,  learned counsel submitted that the  evidence against  A2  nowhere  indicates that A2  visited  Delhi  and Aligarh for establishing contacts for alleged conspiracy and that  prosecution  has not led any independent  evidence  to connect the accused with the recovery of the arms etc.

     In  our  view,  this  submission  is  required  to  be considered  from different angle in view of the fact that A2 is  a  Pakistani national.  If a foreign national  is  found staying  in the country without valid passport and visa  and his  movements  from  one  place  to  another  with  A1  are established  and  from  the premises occupied by  A1,  large quantities of arms and ammunitions etc.  are found, it would be  prudent  and  reasonable to draw inference  of  criminal conspiracy.   The  learned  Sr.  Counsel Mr.   Sushil  Kumar submitted  that prosecution has not proved beyond reasonable doubt  all the links relied upon by it.  In our view, to say that  prosecution  has  to  prove the case  with  a  hundred percent certainty is myth.  Since last many years the nation is  facing  great  stress and strain  because  of  misguided militants  and  co-operation  to the  militancy,  which  has affected  the  social security, peace and stability.  It  is common  knowledge that such terrorist activities are carried out  with  utmost  secrecy.  Many facts pertaining  to  such activities  remain  in  personal  knowledge  of  the  person concerned.   Hence,  in case of conspiracy and  particularly such  activities,  better evidence than acts and  statements including  that  of  co-conspirators  in  pursuance  of  the conspiracy  is hardly available.  In such cases, when  there is  confessional  statement  it  is not  necessary  for  the prosecution to establish each and every link as confessional statement  gets corroboration from the link which is  proved by  the  prosecution.   In  any   case,  the  law   requires establishment of such a degree of probability that a prudent man  may on its basis, believe in the existence of the facts in  issue.  For assessing evidence in such cases, this Court in  Collector of Customs, Madras & Others v.  D.   Bhoormall [1974 (2) SCC 544] dealing with smuggling activities and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 48  

penalty  proceedings  under Section 167 of the  Sea  Customs Act,  1878  observed  that many facts  relating  to  illicit business  remain in the special or peculiar knowledge of the person  concerned  in  it and held thus:  30.    that  the prosecution  or the Department is not required to prove  its case  with mathematical precision to a demonstrable  degree; for,  in all human affairs absolute certainty is a myth, and as  Prof.  Brett felicitously puts it  all exactness is  a fake.   E1 Dorado of absolute proof being unattainable, the law  accepts for it, probability as a working substitute  in this  work-a-  day  world.   The law does  not  require  the prosecution  to prove the impossible.  All that it  requires is  the establishment of such a degree of probability that a prudent  man may, on its basis, believe in the existence  of the  fact  in issue.  Thus, legal proof is  not  necessarily perfect  proof;   often  it is nothing more than  a  prudent mans estimate as to the probabilities of the case.

     31.   The other cardinal principle having an important bearing  on  the  incidence  of  burden  of  proof  is  that sufficiency   and   weight  of  the   evidence  is   to   be consideredto  use the words of Lord Mansfield in Blatch  v. Archar  [(1774)  1 Cowp 63 at p.65] according to the  proof which  it was in the power of one side to prove, and in  the power of the other to have contradicted.

     32.   Smuggling  is clandestine conveying of goods  to avoid  legal duties.  Secrecy and stealth being its covering guards,  it  is impossible for the Preventive Department  to unravel  every link of the process.  Many facts relating  to this  illicit  business  remain in the special  or  peculiar knowledge  of  the persons concerned in it.  However,  this does  not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department  altogether  of  the  burden  of  producing  some evidence  in  respect of that fact in issue.  It  will  only alleviate  that  burden  to   discharge  which  very  slight evidence may suffice.

     37.   For  weighing evidence and  drawing  inferences from  it,  said  Birch, J.  in Queen  v.   Madhub  Chander, (1873)  21 WR Cr.  13 at p.19 there can be no canon.   Each case presents its own peculiarities and in each common sense and  shrewdness  must  be  brought to bear  upon  the  facts elicited.

     Learned  senior  counsel Mr.  K.T.S.  Tulsi  appearing for  A20,  submitted  that  the trial court  has  given  the benefit of doubt to 16 co-accused despite their confessional statements and there was no reason for the Court not to give benefit  of  doubt to A20.  He submitted  that  confessional statement of A20 was recorded under coercion and torture and that confessional statement is having serious discrepancies. He also pointed out that presuming that A20 was found in the company  of  A1  at  Aligarh or at Bombay,  this  would  not indicate  that  he was involved in any  criminal  conspiracy with  A1  or  A2.  It is his contention that  confession  of other co- accused cannot be used against the appellant.

     We  have already dealt with confessional statement  in earlier  paragraphs and, therefore, we do not want to repeat the same.  Confessional statements are held to be admissible in  evidence.  With regard to the confessional statement  of co-accused,  it  has been held that it can be  relied  upon.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 48  

The next question would be whether benefit of doubt ought to have  been given to A20.  It is well understood that concept of  benefit  of  doubt is vague.  Since years  it  has  been considered  that  before  granting benefit of doubt  to  the accused,  doubt  should be reasonable one which occurs to  a prudent  man  and  not to a weak or  unduly  vacillating  or confused mind.  On this point in Vijayee Singh and Others v. State  of  U.P.   [(1990) 3 SCC 190] this  Court  succinctly observed thus:  - There is a difference between a flimsy or fantastic  plea  which is to be rejected altogether.  But  a reasonable  though  incompletely proved plea which  casts  a genuine   doubt  on  the   prosecution  version   indirectly succeeds.  The doubt which the law contemplates is certainly not  that  of  a  weak or  unduly  vacillating,  capricious, indolent,  drowsy or confused mind.  It must be the doubt of the  prudent  man who is assumed to possess the capacity  of separate  the chaff from the grain.  It is the doubt of  a reasonable,  astute  and  alert mind arrived  at  after  due application  of  mind to every relevant circumstance of  the case  appearing from the evidence.  It is not a doubt  which occurs to a wavering mind.

     In that case, the Court also referred to the following observations  in  Miller v.  Minister of Pensions [(1947)  2 All  E.R.372]  by Lord Denning, J.:   That degree  is  well settled.   It need not reach certainty, but it must carry  a high  degree of probability.  Proof beyond reasonable  doubt does  not mean proof beyond the shadow of a doubt.  The  law would  fail to protect the community if it admitted fanciful possibilities  to  deflect  the course of justice.   If  the evidence  is  so  strong against a man as to  leave  only  a remote possibility in his favour which can be dismissed with the sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt

     It  is true that under our existing jurisprudence in a criminal  matter,  we  have to proceed with  presumption  of innocence,  but at the same time, that presumption is to  be judged  on the basis of conceptions of a reasonable  prudent man.   Smelling  doubts  for the sake of giving  benefit  of doubt is not the law of the land.  In such type of terrorist activities  if  arms  and ammunitions are recovered  at  the instance  of  or on disclosure by accused, it can be  stated that presumption of innocence would not thereafter exist and it  would  be for the accused to explain its  possession  or discovery  or  recovery and would depend upon facts of  each case  which  are to be appreciated on the scales  of  common sense  of a prudent man possessing capacity to separate the chaff from grain.  In such cases, as stated by Lord Denning J.,  law would fail to protect the community if it  admitted fanciful possibilities to deflect the course of justice.  If it is established on record that A20 was found in company of A1  and  A2  at  Aligarh  and that at  Bombay  also  he  had introduced  himself  as friend of A1 and A3 to PW87, who  is his  childhood friend, then it would be reasonable to  infer that  he  was  co-conspirator and assisting A1  and  A2,  as stated in his confessional statement.

     The  learned senior counsel Mr.  Sushil Kumar  further contended that Rule 14 of the TADA rules was not followed in this  case, which contemplates procedure of issuing  warrant authorizing  any police officer above the rank of  constable to enter and search the place in the manner specified in the warrant  and  to seize anything found in or on  such  place,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 48  

which  the police officer has reason to believe, has been or is  being, or is intended to be, used for the purpose of  or in connection with any such contravention or offence.  Power to issue search warrants by a District Magistrate under Rule 14  is, to some extent, similar to the power which could  be exercised  under Section 94 of the Cr.P.C.  This  contention was not raised by the learned counsel for the accused before the trial court, may be, because at the time of carrying out the search, there was no pending case under the TADA Act and that  police officers were entitled to carry out the  search and  seizure  under  Section 165 of the  Criminal  Procedure Code.   The  search  and seizure was carried out  by  higher officer,  namely,  S.P.   C.I.D.,  Crime  Branch.   Further, exercise  of such power by the District Magistrate does  not take  away  the  authority of the police officer  to  search under Section 165 of the Cr.P.C.  In the present case, there is  no question of application of Rule 14 of the TADA Act as at  that stage, no case for the offence was pending.   Being cognizable  offence,  on the basis of  information  received that  large  quantity of arms and explosive substances  were stored  in the premises, the police officer was entitled  to exercise  power under Section 165 Cr.P.C.  Hence, we find no force in this contention.

     The  learned counsel pointed out that before  carrying out  the  raids  neither FIR was registered and  even  after breaking  open  locks the procedure is not followed.  It  is true that in this case FIR was registered after carrying out the  raids.  For this contention, it has been pointed out on behalf of the prosecution that before raids were carried out there  was  no certainty that arms and ammunition  would  be recovered.   These raids were carried out only on the  basis of information received after interrogation of A1 Lal Singh. Secondly, the raid was carried out in the presence of higher officer, namely Mr.  A.K.R.  Surolia, Dy.  C.P (PW103).  For breaking of locks in the said premises, there is no question of  different  procedure  in such cases.  For  this  purpose panchnama  was  prepared  and  it is  mentioned  that  after breaking  open  the locks, search was carried out.   Learned counsel  further  submitted  that there was  no  justifiable reason  to deposit the arms and ammunitions which were found in  the said two premises at the police head quarter.  It is the  say  of the witness that muddamal arms and  ammunitions were  deposited  at the police head quarter because  of  its large  quantity.  It is quite possible that there may not be sufficient  space  at  the  police  station  where  FIR  was registered.   In any case, for the purpose of safety if  the muddamal  articles are deposited at the police headquarters, it cannot be said that the recovery is in any way vitiated.

     The next contention that Rule 15 of TADA Rules has not been  followed  also  does not carry any weight.   For  this purpose,  we would refer to the evidence of PW128, PW132 and PW133.  PW128 Satishchandra Rajnarayanlal, who was S.P., CBI II,  Punjab  Cell  at  New  Delhi in  1992  stated  that  he registered  the  offence  R.C.6-SII/92.    He  recorded  the confessional  statements of A1 Lal Singh Ex.620 and A3 Tahir Jamal  Ex.   618 alongwith other accused.  Before  recording confessional  statements, he ascertained from every  accused whether  they  were voluntarily ready to  give  confessional statements.   Necessary questions were put to them and  time was  given  to them to think over the matter.   After  being satisfied   that  they  were   willing  to  give   voluntary confessional  statements,  he  recorded  their  confessional statements.  PW132 Padamchandra Laxmichandra Sharma, who was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 48  

SP  CBI SIC.II at the relevant time stated that when he took over   the  charge  of  this   case  RC.6.(S)/92  from   Mr. Satishchandra,  this case was on the last phase.  Dy.   S.P. CBI,  D.P.  Singh (PW136) had produced A2 Mohd.  Sharief and A20  Shoaib Mukhtiar before him on 8.7.1993 and 6.2.1994 for recording their voluntary confessional statements, which are Ex.650  and  Ex.654  respectively.  Before  recording  their statements,  he  warned them of the consequences  of  making confessional  statements and further gave them time to think over  the  matter.  On being satisfied that they  wanted  to give  confessional statements, he recorded their statements. PW133  Sharadkumar  Laxminarayan,  DIG Police, CBI,  SIC  II Branch,  New Delhi stated that in the year 1992 he was  S.P. in  the same branch at New Delhi.  On 5th November, 1992  he was  directed by DIG M.L.  Sharma to proceed to Ahmedabad in order  to record statement of A4 Saquib Nachan under Section 15  of  TADA Act.  On 6th November, 1992 after  reaching  at Ahmedabad,  Saquib  Nachan was produced before him.  He  put necessary  questions to A4 Saquib Nachan.  Before  recording confessional  statement, he ascertained from him whether  he was  voluntarily  ready to give confessional  statement  and warned  him that if he made confessional statement, the same can  be used against him.  He also apprised the accused that he  is  not bound to make such statement.  When the  accused replied  that he wanted to make clean admission of guilt, he recorded  the  confessional statement of A4  Saquib  Nachan. From  the above evidence, it is clear that Rule 15 was fully followed  by  the witnesses, who recorded  the  confessional statements of accused.

     In view of the aforesaid evidence, the prosecution has proved   its  case  beyond   reasonable  doubt  against  the appellants who are convicted by the trial court.

     (1)  For accused no.1, the evidence as narrated  above proves, beyond reasonable doubt, his involvement in criminal conspiracy.   He moved from one place to another in India in different  fake names;  he along with other persons went  to Ahmedabad, hired C-33, Paresh Apartments and got transferred building  4A in Usmanharun Society, Juhupura, Ahmedabad.  On the  basis  of  his interrogation, the police  at  Ahmedabad raided  the  premises  and  found large  quantity  of  arms, ammunitions and explosive substances.  His stay at Ahmedabad in  the  said premises is established without any shadow  of doubt by examining independent witnesses including residents of  aforesaid two premises, the washerman and other persons. He  was staying in the name of Ashok Kumar Khanna or  Iqbal. His  stay  in  different hotels is  also  established.   The purchase  of Mahindra Jeep and Maruti Gypsy is also  proved. Therefore,  it cannot be said that the trial court erred  in convicting  him  for the offences punishable  under  Section 3(3)  and  5(1) of the TADA Act as well as Section 120B  IPC and under Section 25 (1) (a) of Arms Act.

     (2)  Against accused no.2, apart from his confessional statement, it is proved that he is a Pakistani national.  He moved  from  one  place to another in India.  He  stayed  at Aligarh  with  A1  and in Qureshi Guest House  at  Delhi  in different names during different period.  Hence, there is no reason  to  discard his confessional statement that  he  was I.S.I.   agent  and  that  he   was  involved  in  terrorist activities and hatched conspiracy with A1.

     (3)   For  accused  no.3,   apart  from  proving   his confessional  statement, prosecution has proved that he  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 48  

found  in  the  company of A1 and A20 at Bombay.   From  his premises,  the  letter written by him (Ex.602 and  603)  was found indicating his secret activities.

     (4)  For  accused  No.4, apart from  his  confessional statement,  it is proved that he accompanied A1 at Ahmedabad and  Madras  and  stayed in different  hotels  in  different names.   He was present at Aligarh alongwith A1 and A2.   He was also absconding.

     (5)  Similarly  for A20, in addition  to  confessional statement, the prosecution has led the evidence to establish his  association with A1 and A2 at Aligarh.  Thereafter,  he went  to  Bombay and introduced A1 and A3 as his friends  to his friend PW87.

     The  next  question  would  be   with  regard  to  the conviction  of  A3,  A4 and A20 for the  offence  punishable under  Section  3(3)  of the TADA Act.  In our  view,  there cannot  be  any  doubt that A3, A4 and  A20  have  conspired alongwith   A1  and  A2  in  their   preparatory   terrorist activities.    Apart   from   conspiring,  A4   specifically accompanied  A1 at Ahmedabad for the purpose of finding hide out.   He  also accompanied A1 at Madras for  surveying  the Madras  Stock Exchange.  If A4 was not at all connected with A1,  there  was no necessity of travelling together in  fake names.  For accused nos.3 and 20, it is true that apart from their  confessional statements, role proved against them  in conspiring with A1 is limited.  However, A3, Tahir Jamal had kept  substantial  amount  for   carrying  the   expenditure incurred  in  these activities.  The torn letter Ex.602  and 603  establishes  that he was involved in secret  karobar. In  this  view of the matter, it cannot be said  that  their conviction  under Section 3(3) of the TADA Act is in any way illegal  or erroneous.  However, considering the role played by  A-3, A-4 and A-20, we think interest of justice would be served  if their sentence is reduced from life  imprisonment to R.I.  for 10 years.

     In  the result, Criminal Appeal No.  219 of 1997 filed by A-1 Lal Singh and Criminal Appeal Nos.  1409-1411 of 1999 filed  by  A-2  Mohd.   Sharief   are  dismissed  and  their conviction and sentence as imposed by the learned Designated Judge  are  confirmed.  Conviction of A-3 Tahir  Jamal,  A-4 Mohd.   Saquib  Nachan  and  A-20 Shoaib  Mukhtiar  for  the offence  under  Section 3(3) of TADA Act is  confirmed,  but their  sentence  is  modified to the extent  that  they  are directed  to  suffer R.I.  for 10 years for the same and  to pay  a  fine of Rs.  10,000/- each and in default to  suffer R.I.   for 6 months.  However, their conviction and sentence under  Section  120B and 120B (1) of I.P.C.  imposed by  the Designated Court are maintained.  Hence, Criminal Appeal No. 244  of  1997, Criminal Appeal No.294 of 1997  and  Criminal Appeal  Nos.   407-409  of 1997 filed by A-4, A-20  and  A-3 respectively are allowed to the aforesaid extent only.