Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
CASE NO.:
Appeal (crl.) 208 of 2000
PETITIONER:
GHULAM NABI WAR AND ANOTHER
Vs.
RESPONDENT:
THE STATE OF N.C.T. OF DELHI
DATE OF JUDGMENT: 11/04/2000
BENCH:
M B Shah. & Doraiswamy Raju.
JUDGMENT:
Shah, J.
L...I...T.......T.......T.......T.......T.......T.......T..J
Accused have filed this appeal against the judgment and
order dated 10/15th December, 1999 passed by the Designated
Judge-I, New Delhi in Sessions Case No.10/94 convicting
accused Nos.1 and 2 for the offence punishable under Section
5 of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 (for short TADA Act) and under Section 5 of the
Explosive Substances Act, 1908, and sentenced to undergo
rigorous imprisonment for eight years and a fine of
Rs.20,000/- each and in default of payment of fine to
further undergo rigorous imprisonment for one year under
Section 5 of TADA Act and to suffer rigorous imprisonment
for five years under Section 5 of the Explosive Substances
Act.
It is the prosecution case that on 12th October, 1993, a
secret information was received by the ACP Shri D.S.@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
Naurawat (PW-11), who was posted in the Operations Cell,@@
JJJJJJJJJJJJJJJJJJJJJJJ
that some members of the Muslim Mujahiddin, a terrorist
outfit organisation of Jammu & Kashmir, were hiding
somehwere in South Delhi to carry out terrorist activities
in Delhi. To carry out and develop the information, a
special team comprising of SI Kundan Singh, SI Joginder
Singh, SI Radhey Shyam and ASI Swaminathan under the
supervision of ACP Shri D.S. Naurawat, was constituted.
The police team came to know that 2-3 Kashmiris were staying
in House No.I-105, Lajpat Nagar on the second floor and
their movements were found doubtful. After conveying that
information to the superior officers at about 5.00 p.m.
raiding party conducted raid at the said house. In the said
premises, accused Ghulam Nabi War (A-1) and Meer Arshad
Saleem (A-2) were found. It has been further pointed out
that A-2 was the tenant in possession of the said premises.
After carrying out a formal search of the room, from a
closed loft of the room, one rexine bag was found which was
brought down. The bag was found having a numbered lock and
A-1 claimed that the said bag belonged to him and gave
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
secret No.365 for opening the lock. From the said bag, a
polythene bag of green colour containing 800 gms. of RDX
and another polythene bag containing detonators and a cash
of Rs.25,000/-, one telescope of Russian make and some
clothes of the accused were also found. It is stated that
on further checking of the bag, three fax receipts, two cash
memos and three photostat copies written in Urdu were also
recovered which according to the prosecution contained
formula for making a bomb. Thereafter, DCP Shri B.S. Bhola
was informed and he arrived at the spot and it is alleged
that on further interrogation the accused claimed to be the
members of the Muslim Mujahiddin. After verification of the
facts, DCP B.S. Bhola gave his approval for registration of
the case under TADA Act and under the Explosive Substances
Act.
After completing the investigation, the accused were
charged for the offences punishable under Section 120-B of
I.P.C., Sections 3 and 4 of TADA Act read with Section 120-B
of I.P.C., Section 4 of the Explosive Substances Act,
Section 5 of TADA Act and Section 5 of Explosive Substances
Act. After recording the necessary evidence, the learned
Designated Judge arrived at the conclusion that from the
perusal of the prosecution evidence it is apparent that none
of the ingredients of Section 3 of TADA Act has been alleged
or established. The evidence led by the prosecution is
mainly regarding the recovery of explosive substances only.
The court further observed that there was no further
reference of commission of any terrorist act committed by
the accused persons by using the explosive substances to
over-awe the Government lawfully established by law to
create terror among the public of different sections of the
society and, therefore, there was no evidence on record to
bring home the guilt to the accused persons under Section 3
of TADA Act read with Section 120-B of I.P.C. Similarly,
the court held that prosecution evidence is totally lacking
to bring home the charge under Section 4 of TADA Act read
with Section 120-B of I.P.C. The court pertinently observed
that prosecution has, in fact, failed to lead any evidence,
good or bad or indifferent, to show that accused persons
were members of the Muslim Mujahiddin, a terrorist
organisation. However, considering the evidence on record
with regard to recovery of explosive substances, the court
convicted the accused as stated above.
Learned senior counsel, Mr. Sushil Kumar appearing on
behalf of the accused submitted that the investigation in
the present case and the evidence produced on record is
absolutely defective and is contradictory. He pointed out
that prosecution has failed to produce on record any
evidence of lock-up register to show as to where the accused
were kept after their arrest. He also pointed out
contradictory statements made by the witnesses. One stated
that they were kept at Lodhi Road Police Station, the other
stated that they were kept in Lajpat Nagar Police Station
and the third stated that they were kept in their office
premises at Lodhi Colony Police Station. He submitted that
it is the defence of the accused that they were taken in
custody prior to 12th October, 1993 and a false case is
filed against them.
He next submitted that apart from the contradictory
version, the registration of FIR, preparation of four
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
panchnamas for the recovery of items from the same bag and
also the production of sanction letter granted under Section
20A of TADA Act create much doubt in the prosecution
version. Still, however, considering the fact that A-1 has
virtually undergone six-and- a-half years of sentence, he
submitted that a lenient view for the sentence may be taken
without going in detail. For A-2, he submitted that there
is no evidence on record to connect him with the crime
except the fact that A-1 was guest of A-2 and A-2 was
staying in the premises in question as tenant. He submitted
that the prosecution version, at the most, establishes that
as soon as the bag was found A-1 stated that the bag
belonged to him and he gave the number for opening the lock
of the bag and if that is the prosecution version there is
no question of connecting A-2 with the crime. He submitted
that once the prosecution has failed to establish the
offence under Section 120-B I.P.C. there is no question of
convicting A-2 for joint possession of the explosive
material.
For the recovery of the bag and the explosive
substances, the prosecution has examined number of
witnesses. PW-4 Inspector Kundan Singh was a member of
raiding party. It is his say that on 12th October, 1993 he
was posted as Sub Inspector in Operationa Cell, Special
Branch of the Police. A secret information was received
that some Muslim Mujahiddins of J & K group had been in
Delhi for terrorist activities. After developing the
information, at about 5.00 p.m. under the supervision of
ACP D.S. Naurawat the premises in which those Kashmiris
were staying was raided. During the search, one rexine bag
was found from a closed loft (taund) of the room. On
enquiry, accused No.1 Ghulam Nabi War informed that bag
belongs to him. From the said bag, RDX explosive powder
weighing 800 gms.was found. There was another polythene bag
in the said bag containing small metal pieces which had
electricity wires fitted in it and accused No.1 informed
that those were detonators. Further, Rs.25,000/- of
currency notes, one telescope and certain fax messages were
also found. Information was sent to DCP Mr. Bhola (PW-12)
and thereafter he came on the spot. After hearing the
accused, he directed registration of a case under the
provisions of TADA Act as well as Explosive Substances Act.
The aforesaid evidence gets support from PW-5 SI
Joginder Singh. He has stated that accused No.1 identified
the bag recovered during the search and stated that it
belongs to him. It is his say that accused No.2 opened the
lock of the said bag. Similarly, PW-9 ASI Swami Nath Shukla
deposed to the same extent and he has stated that bag was
opened by accused No.1. PW-11 D.S. Naurawat, Addl. D.C.P.
has stated that bag was opened by accused No.1 by the use of
No.365. In cross, he has stated that no finger prints of
the accused were lifted from the said bag because accused
No.1 had admitted the possession of the said bag. He
further stated that on information Shri Bhola, DCP arrived
at the spot and after questioning the accused and examining
the material he accorded permission for registration of a
case under TADA Act and Explosive Substances Act.
Similarly, PW-12 Shri B.S. Bhola, DCP has also supported
the prosecution version. He also stated that he talked with
both the accused about the recovery of RDX and other
articles and they disclosed that they belong to Muslim
Mujahiddin militant organisation and that the recovered
articles belonged to them. PW- 15 Inspector Radhey Shyam
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
has also stated the same facts with regard to the recovery
of the said bag, RDX and that accused No.1 on being
questioned informed that bag belonged to him and he
disclosed a secret No.365 for unlocking it.
Considering the aforesaid evidence on record, in our
view, the learned Designated Judge was right in arriving at
the conclusion that the prosecution has proved recovery of
RDX and other articles from the house where accused No.2 was
residing as a tenant.
It is also true that evidence on record led by the
prosecution establishes that as soon as the bag was found@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
A-1 stated before the concerned officers that the said bag@@
JJJJJJJJJJJJJJJJJJJJJJ
belonged to him. He further gave No.365 for opening the
lock of the said bag and thereafter the said bag was opened
as stated by two witnesses by A-1 and by a third witness by
A-2. Leaving that part of contradictory evidence, from the
aforesaid evidence which is led by the prosecution itself,
according to the prosecution version, A-1 was the owner of
the said bag; that he had given the number for opening the
lock of the bag; and that there is no other evidence on
record led by the prosecution to connect A-2 with the crime.
We are saying so because the trial court has specifically
found that for the rest of the charges against A-2 there is
no iota of evidence on record. In any set of circumstances,
once the prosecution has failed to prove conspiracy, there
is no question of convicting A-2 for having been in joint
possession of explosive substances. Learned senior counsel
for the prosecution has failed to point out any connecting
evidence to establish the alleged offences against A-2. In
this view of the matter, the impugned judgment and order
convicting A-2 Meer Arshad Saleem S/o Ali Mohd. Mir
requires to be set-aside and is quashed and set- aside.
As regard A-1, as stated above, the prosecution has
established that the bag containing RDX etc. belonged to
him and, therefore, he has been rightly convicted under the
provisions of Section 5 of TADA Act and Section 5 of the
Explosive Substances Act. Before the trial court, it was
pointed out that A-1 is a Graduate in Engineering coming
from a good family background and in the jail also he was
running Indira Gandhi National Open University and National
Open School Study Centre for the past five years and that he
completely dedicated towards this noble cause. By taking
into consideration the age, character, antecedents and his
conduct during the period of his remaining in jail as
undertrial, the learned judge has taken a lenient view. In
view of the aforesaid background of accused No.1 and the
fact that he has already undergone sentence of
six-and-a-half years, we reduce the sentence to the period
already undergone. We further set aside the order imposing
a fine of Rs.20,000/- each for the offences punishable under
Section 5 of TADA Act. If the fine has already been paid,
the same be refunded.
In the result, the appeal is partly allowed. A-2 Meer
Arshad Saleem is acquitted. He is ordered to be released
forthwith, if not required in any other case. For A-1
Ghulam Nabi War, sentence is reduced to the sentence already
undergone and he is ordered to be released forthwith, if not
required in any other case.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5