Full Judgment Text
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
ON THE 29 DAY OF NOVEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.2066 OF 2016
BETWEEN:
IMRAN JALAL @ BILAL AHMED @
KOTA @ SALEEM @ HADI,
SON OF SHAMSHUDDIN,
AGED ABOUT 44 YEARS,
RESIDING AT NO.16, SADARBAI,
HAZARATHBAL, SRINAGAR,
JAMMU AND KASHMIR,
INDIA.
PRESENTLY RESIDING AT
No.262/51, RANIPET,
HOSPET, BELLARY,
KARNATAKA. ... APPELLANT
(BY SRI. S. BALAKRISHNAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY ASSISTANT COMMISSIONER OF POLICE,
CENTRAL CRIME BRANCH (H & B) POLICE,
N.T.PET, BENGALURU. ... RESPONDENT
(BY SRI. V.M. SHEELVANTH, STATE PUBLIC PROSECUTOR)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION OF SENTENCE
TH
DATED 04.10.2016 AND 05.10.2016 PASSED BY THE 55
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-56),
BENGALURU CITY IN S.C. NO.1031/2008 – CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 121, 121A AND 122 OF INDIAN PENAL
CODE AND SECTION 5(B) OF EXPLOSIVE SUBSTANCES
ACT, 1908, SECTIONS 25(1A) AND 26(2) OF ARMS ACT,
1959 AND SECTIONS 20 AND 23(1) OF UNLAWFUL
ACTIVITIES (PREVENTION) ACT, 1967.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 19.09.2019, COMING ON
THIS DAY, H.P. SANDESH J., PRONOUNCED THE
FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of
conviction and sentence dated 4.10.2016 passed in
S.C.No.1031 of 2008, on the file of the Court of LV
Additional City Civil and Sessions Judge (CCH-56),
Bangalore City, for the offences punishable under Sections
121, 121A and 122 of the Indian Penal Code, 1860,
Section 5(b) of the Explosive Substances Act, 1908,
Sections 25(1-A) and 26(2) of the Arms Act, 1959 and
Sections 20 and 23(1) of the Unlawful Activities
(Prevention) Act, 1967.
The brief facts of the case are that:
3
2. The complainant Sri K.N. Jithendranath,
Assistant Commissioner of Police, Central Crime Branch,
Bengaluru, having received credible information that one
terrorist aged about 35 years wearing pant, a black
coloured leather jacket and a woolen cap, who is a native
of Jammu and Kashmir State and presently residing at
Hospet was coming from Hospet to Bengaluru in a VRL bus
bearing No.KA 25/B-6085 which was going to arrive at
Bengaluru in the early morning hours on 5.1.2007 and he
was carrying two bags of which one is maroon colour
containing assault rifles, ammunition and hand grenades.
Upon receiving the information, he called the inspectors
and went to Goraguntepalya Circle by 4.45 a.m. in four
private vehicles. He then summoned two witnesses to act
as panchayatdars. Further, he states that DCP Crime, Sri
Ravikanthe Gowda, arrived at the spot, supervised the
arrangements and proceeded to follow the noted bus and
the complainant instructed Thimmaiah and staff to signal
about the arrival of the bus. At about 5.05 a.m., Police
Inspector Thimmaiah signaled the arrival of the bus and as
they saw the bus parked aside, two passengers alighted
4
from the bus and the complainant noticing the suspect
carrying a maroon coloured bag on his shoulder and
another bag in his hand, rushed towards him with
panchayatdars and apprehended him at about 5.10 a.m.
3. It is also the case of the complainant that after
he disclosed his identity as Imran Jalal, he was questioned
about the contents of the bag and as he provided evasive
answers, the complainant searched the maroon colour
regzine bag in the presence of panchayatdars and found
one AK assault rifle, two plastic packet containing 100
rounds of ammunition, one packet containing two
magazines of AK assault rifle, one rifle sling, one bed sheet
and one pyjama. In the other bag they found one chadar,
one jamkhana, one rasai, five hand grenades, one travel
book, one Bengaluru City map, one Thuraya satellite
phone and one letter pad book. Further, on personal
search, they found one Nokia mobile phone from his right
hand side pocket, one Nokia mobile phone in the right side
of leather jacket pocket, one leather purse in his back pant
pocket with one used and three unused SIM cards of BSNL,
5
cash of Rs.1,500/-, one passport size photo of a male,
membership card of gym, Jammu and Kashmir I.D. Card,
Driving Licence, PAN Card, Handicrafts Owners Association
membership card, Jammu and Kashmir bank ATM Card,
Jammu and Kashmir Bank slip, one slip bearing numbers in
green ink, two slips bearing phone number and one slip
with number said to be of passport, one key Alba make
found in the right side of the pant pocket and one traveling
ticket with the name Imran in the left side of pant pocket.
4. The mahazar was drawn and a written complaint
was lodged at about 9.30 a.m., which came to be
registered as Crime No.6/2007 for the offences punishable
under Sections 5 and 6 of the Explosive Substances Act,
1908, Sections 25, 26 and 28 of the Arms Act, 1959,
Section 120B, 121, 121A and 122 of Indian Penal Code,
1860 and Sections 10, 11, 13, 15, 18, 19, 20 and 23 of the
Unlawful Activities (Prevention) Act, 1967.
5. The Investigating Officer, ACP, CCB, Bengaluru
conducted the investigation and after completion of the
investigation, he has filed the charge-sheet against the
6
accused Nos.1 to 6 and showing accused Nos.2 to 6 as
absconding in the Trial Court. Thereafter, the Investigating
Officer has obtained the following sanctions specifically
under Section 39 of the Arms Act, 1959 dated 26.3.2007
and marked as Ex.P.82, under Section 7 of the Explosive
Substances Act, 1908 dated 26.3.2007 marked as Ex.P.83
and under Section 196 of Code of Criminal Procedure to
prosecute under the Unlawful Activities (Prevention) Act,
1967 dated 30.3.2007 marked as Ex.P.57.
6. The Court below after hearing the accused,
framed the charges and read over to the accused No.1 and
after haring both the sides, charges were altered and after
alteration of the charges, accused No.1 was charged for
the offences punishable under Sections 121, 121A and 122
of the Indian Penal Code, 1860, Section 5(b) of the
Explosive Substances Act, 1908, Section 25(1-A) of the
Arms Act, 1959 and Sections 20 and 23(1) of the Unlawful
Activities (Prevention) Act, 1967.
7. Accused No.1 pleaded not guilty and claimed
trial. Hence, the prosecution examined P.Ws.1 to 32 and
7
relied upon the documents at Exs.P.1 to 112 and marked
Material Object Nos.1 to 42. Thereafter, the statement of
accused No.1 was recorded under Section 313 of Code of
Criminal Procedure. Accused No.1 has not led any defence
evidence. The Court below after hearing both the sides,
convicted accused No.1 for the above offences. Hence, the
present appeal is filed before the Court.
8. The main grounds urged in the appeal memo is
that the Court below has committed an error in accepting
the inconsistent and uncorroborated evidence of the
prosecution witnesses. The Trial Court has failed to take
note of serious and glaring omissions and contradictions
elicited in the evidence of the prosecution witnesses which
are consistent with the innocence of accused No.1. This
was a case where allegation of conspiracy based on
recovery had been made by the prosecution but the
prosecution has not led any evidence either by direct
circumstances or presumptive circumstances to show the
alleged involvement of accused No.1.
8
9. The Trial Judge failed to appreciate the fact that
P.W.17, who is an independent witness has been examined
to prove that accused No.1 traveled from Hospet to
Bengaluru on 4.1.2007, but he has turned hostile stating
that he did not see accused No.1 on 4.1.2007, but he has
seen him five years back and that he does not know about
any bags carried by accused No.1.
10. The Trial Judge has failed to appreciate that
P.W.7, who has participated in apprehending accused No.1
along with others states that he had information that
Inspector Jayabhandari – P.W.10, was coming in the VRL
bus from Hospet. The witness further states that after
P.W.10 got down from the bus, he showed the accused to
be arrested which contradicts the statements of other
witnesses about the circumstances surrounding arrest and
seizure.
11. The Trial Judge has failed to appreciate the grave
inconsistencies in the statements of P.Ws.8, 9, 10, 11 and
30, who are all the police officers apprehending the
accused. The contradictions in the statements of these
9
witnesses raises serious questions about the arrest and the
surrounding circumstances as they provide varied
testimonies lacking corroboration. None of the independent
witnesses examined have corroborated to the testimonies
of these officers. The complainant himself is a police officer
and these witnesses also being police officers, their
statements must be viewed with caution as they have the
motive to implicate the accused falsely.
12. The Court below also failed to appreciate that
P.W.1, the so-called independent witness during the
apprehension of the accused at Gorguntepalya deposes in
a contradictory manner to the other officers and he does
not say about the bombs being recovered at all.
13. The Trial Court has erroneously read the
evidence of P.W.13, who is an independent witness to the
recovery made at the residence of the accused and his
statement contradicts the facts that are narrated by the
police officers. He further states that he has not seen the
grenade being seized. He also states that the accused took
the key placed above the door and opened the door while
10
P.W.10 states that the key was in their possession and
that they handed over the key to open the door of the
house. P.W.13 states that the police did not touch the key
of the almirah which was placed above it. P.W.10 states
that the almirah was opened by the accused by using the
key above the door. This raises serious questions about
the very recovery itself.
14. The Trial Court has failed to appreciate that
P.W.30 being the complainant who seized the arms and
ammunitions in Bengaluru was further assigned to be the
Investigating Officer and he does the recovery in the
residence of the accused in Hospet and he continues to
work as part of the investigation which raises questions
about fair investigation.
15. The Trial Court has filed to appreciate that
P.W.3 is an independent witness who has witnessed the
handing over of seized grenades to P.W.4 to diffuse. He
states that the Investigating Officer has not showed any
bombs while handing over to P.W.4 and that P.W.4 opened
the boxes in firing range and he did not accompany them
11
while they diffused, which raises doubts whether there
were any live grenades at all. P.W.6 also states that he
carried the defused grenades to FSL by bus, which shows
the hollowness of the prosecution claim that the bombs
were live in the first place.
16. The Trial Court has failed to appreciate that
P.Ws.2 and 23 are bank employees who furnished the
bank statements of the accused and they have not
supported the case of the prosecution. P.W.31, the
complainant states that he found no irregularities in the
account statement of the accused and thereby the
allegation that accused received funds from LET are
baseless and unsubstantiated.
17. The Court below has failed to appreciate that
P.Ws.14 and 21 are the witnesses for seizing of electronic
records to prove that the accused has been sending
e-mail. These electronic records are not accompanied with
a certificate under Section 65B of the Indian Evidence Act,
1872 and further the seizure process is contrary to
established law making it unfit to be relied upon.
12
18. The Trial Court has failed to appreciate that
there is absolutely no evidence on record to show that that
the accused had any membership with LET or that there
were any financial transactions between the accused and
LET. The learned Trial Court has wrongly come to a
conclusion that since the accused has admitted that he
paid Rs.1 lakh to Fayaz to purchase a shop he is involved
when in fact P.W.31 in his cross-examination states that
he examined Fayaz and further he has found nothing
untoward in the shop premises. Inspite of these material
contradictions and in the absence of corroborations, the
Court below has committed an error in convicting accused
No.1.
19. The learned counsel for the appellant in his
argument vehemently contended that the Court below has
committed an error in convicting accused No.1. It is also
his contention that accused Nos.2 to 6 are split up and
only proceeded against accused No.1. The main argument
is that the SIM card is not in the name of accused No.1
and no investigation was done to connect the accused for
13
the offences charged against him. There are no material to
connect with satellite phone. The other contention is that
there are no material placed by the prosecution to show
that the accused travelled from Hospet to Bengaluru and
none of the passenger is examined, no ticket is collected
and the very apprehension itself is doubtful. The
prosecution also did not produce any material to prove
that accused No.1 is a member of terrorist organization.
The Investigating Officer has not collected any material to
show that he is a member of terrorist association to invoke
Sections 20 and 23 of the Unlawful Activities (Prevention)
Act, 1967.
20. The sanction order also discloses that the
sanctioning authority has not considered the material
before giving the sanction order. There is no other case
against him. The accused No.1 came to Bengaluru in his
younger age and he did diploma at Bengaluru and
thereafter he joined his cousin shop at Hampi and
thereafter he only purchased the shop belonged to his
cousin and he continued his business at Hospet. The
14
recovery is also not proved and none of the circumstances
prove against the accused with regard to the recovery.
Even to invoke the offences under the Arms Act also, no
investigation was conducted with regard to the source of
arms and since 5.1.2007 he has been in custody. The
accused denied the charges levelled against him and in the
absence of sufficient material, the very conviction is
opposed to law.
21. The learned counsel in support of his
contentions relied upon the judgment of the Hon’ble Apex
Court in the case of PARAM HANS YADAV AND OTHERS v.
STATE OF BIHAR AND OTHERS reported in AIR 1987 SC
955 and contended that the charge of conspiracy should be
supported by direct evidence and in case the prosecution
relies on circumstantial evidences, then clear link has to be
established. In situation of incomplete evidence, allegation
of conspiracy cannot be accepted. The Apex Court also
held that the prosecution has not been able to establish by
evidences involvement of the appellant in conspiracy and
hence the accused is entitled to benefit of doubt. In the
15
present case on hand also, the prosecution failed to
establish the conspiracy and also involvement of the
accused in the heinous crime.
22. The learned counsel also relied upon the
judgment of the Hon’ble Apex Court in the case of
KAILASH GOUR AND OTHERS v. STATE OF
ASSAM reported in (2012) 2 SCC 34 and contended that
the Apex Court in the judgment held that such aberrations
however do not justify departure from rules of evidence or
fundamental tenets of criminal justice system. The benefit
arising from faulty investigation ought to go to accused
and not to the prosecution. Moreover, quality and
credibility of evidence required to bring home guilt of
accused cannot be different in cases where investigation is
satisfactory vis-à-vis cases in which it is not or where it
involves communal overtones vis-à-vis ordinary crimes.
There can only be one set of rules and standards in
criminal cases unless a statute provides for anything
specially applicable to a particular case. He also contended
that the Commissions indicate an anti-minority bias among
16
the police force in communal riot situations and
investigations. By relying upon this judgment he
contended that it is a classic example falsely implicating
the accused only on the ground that he belongs to muslim
community.
23. He also relied on the Hon’ble Apex Court’s
judgment in the case of DATAR SINGH v. THE STATE OF
PUNJAB reported in AIR 1974 SC 1193 and contended that
the prosecution failed to prove beyond reasonable doubt
that the accused was involved in the crime. Conviction
based on mere suspicion and erroneous appreciation of
evidence is not sustainable.
24. The learned counsel also relied upon the
judgment of the Hon’ble Supreme Court in the case of
SANJAY DUTT (A-117) AND OTHERS v. STATE OF
MAHARASHTRA reported in AIR 2013 SC 2687 with regard
to the sentence and contended that the Court below has
committed an error in sentencing the accused for life
imprisonment on different counts. The Apex Court in this
judgment reduced the sentence and further with regard to
conviction and sentence, the Apex Court discussed in
17
paragraph No.95 that “As has been rightly observed by the
Designated Court, mere recoveries of a.9mm pistol and the
rounds from the bungalow of A-120 would not be sufficient
to connect him with said articles. It is settled law that the
recoveries made must be found to have been made as a
consequence to the statement made by the accused in
custody. In other words, if the nexus in between is not
established, the said statement made would be
inadmissible in evidence.” The counsel relying upon this
judgment would contend that the prosecution failed to
prove the recoveries at the instance of the accused.
25. The learned counsel also relied upon the
judgment of the Hon’ble Supreme Court in the case of
ADAMBHAI SULEMANBHAI AJMERI AND OTHERS v. STATE
OF GUJARAT reported in (2014) 7 SCC 716, wherein it is
held that uncorroborated, unconnected and contradictory
retracted confessions, illegally and forcibly extracted to
frame innocent and unconnected persons because police,
after a long delay of about a year, failed to nab unknown
terrorists/masterminds of the crime. In the case on hand
also the police implicated the accused without any material
18
and there are no independent witnesses before the Court
and most of the witnesses are police witnesses and the
same was not corroborated in admissible evidence and
prosecution story did not form a credible chain linking the
accused with the crime. Under the circumstances, the Apex
Court appreciating the material on record allowed the
appeal and set aside the judgment. In the case on hand
also in the absence of any independent witnesses and
mainly relying upon the evidence of police witnesses and
no material to connect the accused that he was involved in
the terrorist crime and the offences invoked against the
accused are not sustainable in the eye of law.
26. The learned counsel relying on the judgment of
the Hon’ble Supreme Court in the case of ARUP BHUYAN v.
STATE OF ASSAM reported in AIR 2011 SC 957, brought to
the notice of this Court paragraph Nos.11 and 14 to 16
that mere membership of a banned organization cannot be
a ground to convict the accused. Although the appellant
has denied that he was a member of ULFA, which is a
banned organisation. Even assuming he was a member of
ULFA, it has not been proved that he was an active
19
member and not a mere passive member. Further it held
that, it has to be read in the light of our observations
made above. Mere membership of a banned organization
will not make a person a criminal unless he resorts to
violence or incites people to violence or creates public
disorder by violence or incitement to violence.
27. He also relied on the judgment of the Hon’ble
Supreme Court in the case of BILAL AHMED KALOO v.
STATE OF ANDHRA PRADESH reported in AIR 1997 SC
3483 and contended that decisive ingredient for
establishing offence of sedition under Section 124-A is
doing of certain acts which would bring Government
established by law into hatred or contempt. Serious
offences should be dealt with great care so that liberty of
citizen is not lightly interfered with. He also would contend
that in order to invoke Section 121 of the Indian Penal
Code, there are no material before the Court and in the
absence of the same, the Trial Judge has erroneously
convicted the accused.
20
28. On the other hand, the learned State Public
Prosecutor appearing for the State in his argument would
contend that the evidences of P.Ws.1, 7, 9, 10, 11, 13 and
also the complainant, who has been examined as P.W.30
with regard to the apprehending the accused, recovery and
seizure of articles is consistent. P.W.13, is the recovery
witness in Hospet, i.e., in the residence of the accused.
The banned articles are seized and possession is not
disturbed in the cross-examination of this witness. Hence,
the prosecution has proved the apprehending of the
accused and also with regard to seizure of the banned
material at the instance of the accused. Exs.P.74 and 77
discloses with regard to the explosives the accused was
having in his possession without authorization. There is no
dispute with regard to sanction order. The only contention
is that the sanctioning authority has not considered the
material and the same also cannot be accepted. P.W.1 is
an independent witness and he categorically says that the
accused had already alighted from the bus. Hence, the
question of examining the driver, conductor or the
passengers does not arise. It is not his case that he was
21
not at the spot and he was apprehended at 5.10 a.m. and
FIR was registered at 9.10 a.m. and mahazar was
conducted immediately after his arrest, till 9.00 a.m. The
seizure at Hospet is also proved by examining the panch
witnesses.
29. Section 3(l) of the Unlawful Activities
(Prevention) Act defines with regard to “terrorist gang”
and Sections 2(m) and 2(k) defines with regard to
“terrorist organization” and “terrorist act”. He further
contend that though possession is not defined, the Court
can draw inference under Section 15 and also with regard
to the possession under Section 23 of the Unlawful
Activities (Prevention) Act. Section 23 is with regard to
unauthorized possession and there is no explanation by
the accused under Section 313 of Code of Criminal
Procedure. The burden is on him to explain with regard to
the possession, where he got the seized articles and
sources also. The appellant cannot find fault with the
investigation with regard to the source of the articles. The
mobile and e-mails were seized at the instance of the
22
accused and the Trial Court considered all these materials
while convicting the accused.
30. The counsel appearing for the State also in his
arguments relied on the judgment of the Hon’ble Supreme
Court in the case of YAKUB ABDUL RAZAK MEMON v.
STATE OF MAHARASHTRA reported in (2013) 13 SCC 1
with regard to the meaning and measures to deal with
terrorism. It is also contended that investigation, search,
seizure, panchanamas, recoveries and related issues are
supported by the prosecution evidence. The object behind
conducting the panchanama is to check malpractices of
search officers and to ensure that incriminating recovered
article was not implanted by search officers. The law does
not require corroboration of evidence of independent
panch witnesses duly corroborated by contemporaneous
panchanama found trust worthy. The counsel relying upon
this judgment would contend that the principles laid down
in the judgment is aptly applicable to the case on hand.
The accused is involved in organized crime and the
material collected by the Investigating Officer is sufficient
to bring the accused within the purview of the charges
23
leveled against him and the Court below has given its
anxious consideration to the material available on record
and rightly convicted the accused. Hence, prayed this
Court to dismiss the appeal.
31. In reply to the arguments of the respondent’s
counsel, the learned counsel for the appellant would
contend that the prosecution did not produce any
documents regarding traveling of the accused from Hospet
to Bengaluru in connection with his business. The Court
cannot infer Section 20 of the Unlawful Activities
(Prevention) Act in the absence of any material. In order
to invoke Section 121 of the Indian Penal Code and also
the charges under the Unlawful Activities (Prevention) Act,
there must be material and there are no material before
the Court and the offences invoked are heinous offences
and the accused cannot be convicted for life imprisonment
based on the surmises. Hence, the appeal is liable to be
allowed and the impugned judgment of conviction is liable
to be set aside.
24
32. Having heard the learned counsel for the
appellant and the learned State Public Prosecutor
appearing for the State, the points that arise for the
consideration of this Court are:
1. Whether the Court below has committed
an error in coming to the conclusion that
the sanction order is a valid sanction and
it requires interference of this Court?
2. Whether the Court below has committed
an error in invoking Sections 121, 121-A,
and 122 of Indian Penal Code that the
accused had conspired with the other
accused to wage war against
Government of India being the active
member of a banned organization
namely, Lashkar-e-Toiba and it requires
interference of this Court?
3. Whether the Court below has committed
an error in invoking Section 5(b) of the
Explosive Substances Act, 1908 that the
accused was possessing explosives under
suspicious circumstances and it requires
interference of this Court?
4. Whether the Court below has committed
an error in invoking Sections 25(1-A) and
25
26(2) of the Arms Act, 1959 that
accused had secret contacts in
possessing the explosive substances and
it requires interference of this Court?
5. Whether the Court below has committed
an error in coming to the conclusion that
the accused is a member of a banned
organization namely, Lashkar-e-Toiba
which involved in terrorist activities and
he being a member of terrorist
organization unauthorisedly possessd
hand grenades which are capable of
mass destruction and unauthorisedly
possessed AK assault rifle aiding a
terrorist organization and committed an
error in invoking Sections 20 and 23(1)
of the Unlawful Activities (Prevention)
Act, 1967?
6. What order?
33. Before considering the material on record we
would like to narrate the brief facts of the case of the
prosecution. The case of the prosecution is that, this
accused, along with other five accused, during the period
from 2001 to 2007 entered into a criminal conspiracy at
places namely, Islamabad, Srinagar, Mumbai, Pune,
26
Hampi, Hospet and Bengaluru, being the active member of
a banned terrorist organization namely, Lashkar-e-Toiba to
wage war against the Government of India or State
Government. It is also the specific case of the prosecution
that on 05.01.2007 at about 5.10 a.m., this accused was
apprehended red-handedly with the explosive substances
like hand grenades arms, ammunitions like AK assault rifle
etc., to blast the same against the I.T companies like
Wipro, Infosys, ITPL, HAL International Airport and
Vidhana Soudha, Bengaluru to kill the innocent people and
thereby make terror attempt to wage war against the
Government of India.
34. It is the further case of the prosecution that
from the year 2001 to 2007, the accused being the active
member of Lashkar-e-Toiba, collected arms and
ammunitions with an intention to wage war against the
Government and knowingly acquired and had the same
under his control a special category of explosive
substances like hand grenades etc., and he was not having
any license to possess the same and he also failed to show
27
that he had those substances in his possession under
lawful object. In between the year from 2001 to 2007, he
had acquired and possessed the prohibited arms like AK
assault rifle in contravention of Section 7 of the Arms Act
without any special authorization which would indicate that
he was having secret contravention to create mass
destruction.
35. It is also the case of the prosecution that this
accused involved in unlawful terrorist activities and was a
member of a banned terrorist organization till the incident
and was possessing hand grenades which are capable of
mass destruction, which is in contravention of the
provisions of the Arms Act and was unauthorisedly
possessing AK assault rifle which are capable of mass
destruction. The accused being the member of an unlawful
activities organization engaged himself in causing dangers
to the life of innocent people and thereby committed an
offence punishable under Sections 121, 121-A and 122 of
the Indian Penal Code, 1860, Section 5(b) of the Explosive
Substances Act, 1908, Sections 25(1-A) and 26(2) of the
28
Arms Act, 1959 and Sections 20 and 23(1) of the Unlawful
Activities (Prevention) Act, 1967.
36. The accused did not plead guilty and hence, he
was subjected to trial. The prosecution, in order to
substantiate the case, examined the witnesses P.Ws.1 to
32 and also relied upon the documentary evidence, Exs.P1
to P112 and material objects 1 to 42. Now let this Court
discuss both oral and documentary evidence placed by the
prosecution.
37. P.W.1 is the mahazar witness with regard to
apprehending the accused and seizure. P.W.1 in his
evidence states that he was called by P.W.30 and was
requested to become the mahazar witness and at around
5.00 to 5.10 a.m., VRL bus came and stopped near
Goraguntepalya Bus Stop. From the said bus, two persons
alighted and P.W.30 and his staff has surrounded a
persons and he was wearing jeans pant, leather jacket and
was also wearing monkey cap on his head. He tried to
escape from the spot, but he was apprehended. P.W.30
disclosed that he is a Police Officer. The said person was
29
having two bags, one is grey colour and another is blue
colour. The same was subjected to verification and they
found AK-47 rifle, two magazines, total 200 live bullets,
chest belt for holding AK-47 which also contains a pyjama.
The other blue colour bag contained five live grenades,
carpet, map and other articles and they were subjected to
P.F. P.W.1 also identifies M.Os.1 to 17. It is also his
evidence, on enquiry, accused revealed his name as Imran
Bilal and he had possessed the above, in order to blast the
ITPL and Airport and the same was seized under the
mahazar in terms of Ex.P1 from morning 5.15 to 9.10 a.m.
He also identifies the Magazines as M.Os.19 and 20 and
AK-47 fiber stink belt, 10 live bullets, 90 live bullets, 10
live bullets and another 90 live bullets and the same are
marked as M.Os.21 to 26. On personal search, they found
one nokia phone in the jerkin and another nokia phone
from his pant pocket and also purse. In the said purse,
they found one used sim card, driving license, ATM card of
Jammu and Kashmir Bank, Rs.15,000/- cash, Passport,
phone number, pan number and also Jammu Kashmir I.D.
30
card and the same are also seized. He was subjected to
cross-examination.
In the cross-examination, he states that, he was the
resident of Somwarapete Taluk and he is doing the real
estate business with one of his friend Sundaresh. P.W.30
called him to mahazar and gave notice at around 4.45
a.m. He was at the spot at 4.30 a.m. When he went to
the spot, at that time, a VRL bus came, five to six persons
alighted from the said bus. There were people near the
bus stop. The Assistant Commissioner of Police, i.e.,
P.W.30 was not in his uniform and the panchanama was
written by himself from morning 5.00 to 9.00 a.m. near a
tree. The same is in the hand writing of P.W.30,
Jitendranath. He read the contents of mahazar and signed
the same. He cannot tell how many signatures were taken
at the spot but, those signatures have been pasted on the
material objects. He identified M.O.21, AK-47 rifle and the
accused himself told that it is AK-47 rifle. He states that in
M.O.21, there is a mark and he does not know whether the
same was in existence prior or it has occurred after the
was seized and brought. It is elicited that, 200 live bullets
31
were seized at the instance of the accused and the same
were counted by P.W.30 in his presence. It is elicited that,
now he does not know where his friend Sundaresh is
staying. But, at the time of the incident, he was staying at
Yeshwanthapur. He admits, he cannot provide all the
details as mentioned in his chief evidence and satellite
phone belongs to Thuraya Company and he does not know
the spelling and he cannot tell in which place, the same
was mentioned but, he claims that he has seen and read
the same. He admits, in the early morning, in the said
area , number of vehicles moves around and he cannot
state the day of 05.01.2007. He cannot state whether in
mahazar, Ex.P1, it is mentioned that the accused was
having above objects to blast the public places. It is
suggested that, he has signed mahazar in the police
station and the same was denied. He also claims that his
friend Sundaresh has also signed the same but, he cannot
state as to who all others have signed the same. It is
suggested that nothing was seized at the instance of the
accused and the same was denied.
32
38. The prosecution also relies upon the evidence
of P.W.2, Retired Deputy General Manager, Canara Bank,
who states with regard to accused was having bank
account from 2004 to 2007 and a request was given to
him to furnish the details as to who introduced him, in
terms of Ex.P2. The details was furnished to the police on
the next day, in terms of Ex.P3 and also the details in
terms of Exs.P4 to P8 was furnished and in Ex.P4, it is
stated that one Riyaz Ahmed Meer introduced him while
opening the account. The accused has signed Exs.P4 and
P7 as Imran Jalal.
In the cross-examination, it is elicited that he is not
aware that at the time of opening the account, whether it
is mandatory to produce the originals or duly certified
copies of address proof of identity. It is elicited that, Ex.P6
is a document which does not bear signature of any person
i.e., Form No.60 which is a declaration that a person needs
to be filed at the time of opening of an account. He also
admits that page No.2 of Ex.P4 is completely blank. It is
suggested that Ex.P4 is a fake document, which does not
have any proper recordings and the same was denied. He
33
admits that the photo affixed to the form should be
attested by the Manager and Ex.P4 does not have the
attestation of the Manager. The first page of Ex.P8 is in
hand writing and rest of the pages are printouts. Ex.P7 is
the specimen signature card and a photograph is affixed
on the rear side of Ex.P7. He cannot state whether the
specimen signature is of the person in the photograph. He
has not seen the correctness of the document after
receiving the same from the bank.
39. The other witness is P.W.3, who is a witness
for diffusing of live grenades before it could blast. He was
called to Yeshwanthapura police station on 03.02.2007.
The police gave five live bombs which were kept in the box
to one Jagadeesh and instructed him to diffuse the same.
Hence, they all went in a jeep near the firing range,
Hosakote and the said Jagadeesh diffused the live bombs.
While diffusing, he also found chemicals, steel balls and
pins and it took up to 4.30 p.m. to diffuse the same and
thereafter, they came to CCB office. Mahazar was drawn
to this effect in terms of Ex.P9 and he signed the same.
34
The person, who accompanied along with him i.e., Mr.
Sanjeeva Sharma also signed Ex.P9. He was subjected to
cross-examination.
In the cross-examination, he states that he has no
knowledge about the bomb. He believed the version of the
Investigating Officer and identified them as bombs. From
the car, two cartoon boxes which were packed with white
cloth and stitched over that there was a seal. The
Investigating Officer has not showed him the bombs by
opening two boxes in the police station. P.W.4 and other
officers diffused the bombs. He does not know how many
bombs were diffused and states that he did not pack and
seal the explosive materials.
40. P.W.4 is the witness, who diffused the live
bombs. In his evidence, he states that on 11.01.2007, a
letter was addressed to their office and request was made
to send a person, who is having a knowledge of diffusing
the bombs and accordingly, himself, Narayanappa,
Sukumara and Shashikumar were nominated by memo in
terms of Ex.P10. That on 03.02.2007, he went to
35
Yeshwanthapur ACP office and they have given a letter and
also handed over 10 plastic hand grenades to diffuse the
same and letter was also given to him in terms of Ex.P12.
After taking the said hand grenades to the police firing
range diffusing office along with the witnesses, they
reached the office at 1.00 p.m. and through Explosive
Vapor Detector, they examined which type of chemicals
are used to prepare the bombs and sent the same to FSL
for examination and diffused the same. The Assistant
Commissioner of Police gave five each live bombs which
are in blue and green colour and they removed safety liver
and safety pins in the said bombs. Thereafter, separated
the detonator in the bombs and diffused the same which
took time up to 4.30 p.m. Again the same were sealed,
packed and handed over to concerned police and gave the
report in terms of Ex.P13. Ex.P9 is the mahazar drawn to
this effect.
In the cross-examination, it is elicited that, he
prepared Ex.P13 in CCB office on the date of disposal of
the bombs. He has not mentioned the names of
Panchayathdars in his report. He does not know the
36
contents of the boxes, until they were opened. It is his
evidence that according to BSF plastic hand grenades are
found in border area and he has not mentioned the same
in Ex.P13. He has not submitted anything to demonstrate
that he has made such enquiries. It is suggested that, he
neither went to the police station nor collected the
grenades for disposal and the same was denied. It is
suggested that he is giving evidence at the instance of
Investigating Officer and the same was denied.
41. P.W.5 in his evidence states that on
12.07.2007 he received a letter from CCB office requesting
him to verify whether the bombs seized belongs to military
and identify the source of those bombs. One Sri T.K.
Haridasan, Ammunition Technician was nominated and he
took the same and gave the report in terms of Exs.P14 to
P16.
In the cross-examination, it is elicited that he has
not produced the request letter of the police and also he
does not remember the designation of the police
personnel, who accompanied, Sri T.K. Haridasan. He
37
admits that he is not the author of Exs.P14 and P15 and he
cannot say the truth and veracity of Exs.P14 and P15.
42. P.W.6 is the witness, who carried the seized
articles to FSL. In his evidence, he states that on
17.02.2007, he took the items of P.F.No.6/2007 as per the
request letter in terms of Ex.P18 and he handed over the
same to FSL.
In the cross-examination, a suggestion was made
that he did not carry the seized articles to FSL and the
same was denied. But he states that he carried the sealed
articles to FSL by bus and he does not know the contents
of the sealed articles.
43. P.W.7 is the mahazar witness. In his evidence,
he states that on 05.01.2007, P.W.30 informed that they
have received the information that one person of Jammu
and Kashmir is coming to Bengaluru from Hospet in VRL
bus and accordingly, as per his instructions, they all went
near the place at 4.45 a.m. The Assistant Commissioner
of Police also called two persons, who were on walk and
requested them to act as panch witness. It is his
38
evidence, when the persons alighted from the bus, we
surrounded this accused and on enquiry, he revealed his
name as Imran Jalal of Srinagar and he was having two
carry bags, one on his left shoulder and another on his left
hand and he tried to ran away, but the staff apprehended
him. P.W.7 also reiterates the evidence of P.W.1 with
regard to the accused possessing M.Os.1 to 17.
In the cross-examination, he admits that the
Inspector, Assistant Commissioner of Police and Constable
were wearing bullet proof jacket. They all went to
Goraguntepalya at around 4.30 to 4.45 a.m. and he was
near the vehicle. He states that he was having a bag on
his shoulder and another bag in his hand but, he cannot
tell the nature of the bag. The Assistant Commissioner of
Police himself personally searched those bags. He admits
that at around 6.00 a.m., number of lorries and other
vehicles makes the movement in the said road. It is
suggested that, he did not accompany the Assistant
Commissioner of Police, Jitendranath and no articles were
seized at the instance of the accused and the same was
denied.
39
44. P.W.8 is also a mahazar witness. In his
evidence, he reiterates the evidence of P.W.7. He states
that two persons got down from the bus, one person was
wearing pant, T-shirt, black jerkin and cap and was having
two bags. The Assistant Commissioner of Police stopped
him and apprehended him and requested the persons
walking on the road at the spot to act as panch witnesses.
The accused revealed his name as Imran Jalal and in the
bags which he carried, M.Os.1 to 17 and 19 and 27 were
found. This witness is treated as hostile only with regard
to eliciting the answer that Assistant Commissioner of
Police took all of them from the accused and sent the
seized articles to Yeshwanthapura police station and also
produced the accused before the Yeshwanthapura police
station and lodged a complaint.
In the cross-examination, it is elicited that he has
seen AK-47 rifle in his training but, he does not know the
varieties of AK-47 rifle and he has not used AK-47 rifle
magazine, which is the cover used for loading rounds. It is
elicited that, M.O.21 may be new, but he cannot say how
40
new it is. He admits, in their training, they have not
shown any other rifle except, AK-47 rifle and further
volunteers to state that in their training, they have told
that AK-47 is not from India. He has not seen the satellite
phones before and the Assistant Commissioner of Police
told them that M.O.11 is the satellite phone. The Assistant
Commissioner of Police enquired with the accused about
M.O.11 as to what kind of phone it is and how it is to be
used.
45. P.W.9 is also a mahazar witness and he
reiterates the evidence of P.Ws.7 and 8 with regard to
going to the spot and apprehending the accused. He
states that at about 5.05 a.m., the Police Inspector gave
signal to him and other staff stating that the bus is
coming. The Assistant Commissioner of Police gave a hand
signal to come to the spot, two panchas were also secured
at the spot and accused was apprehended and he revealed
his name as Imran Jalal. The Assistant Commissioner of
Police searched the accused and found M.Os.1 to 17 and
19 to 27.
41
In the cross-examination, he states that himself,
Prakash and Prabhakar were standing along with the
Assistant Commissioner of Police. A suggestion was made
that one cannot see the number plate of the vehicle
coming with headlights and the same was denied. Further
suggestion was made that one cannot identify the light is
of the same bus and the same was also denied. It is
elicited that he does not know whether the Inspector and
other staff enquired the other person, who got down from
the bus. The road situates opposite to CAQ and next to
Gokuldas Imaging leads to Mysuru and it is a ring road.
Jetti Motors is situated after RNS bus stop. It is suggested
that himself and other officials had not come near RNS bus
stop and not apprehended the accused and did not seize
any articles and the same was denied.
46. P.W.10 is the other mahazar witness, both in
respect of the mahazar dated 05.01.2007 and also the
signatory to the mahazar which is drawn at the native
place of the accused at Hospet. P.W.10 also reiterates the
evidence of P.Ws.7 to 9. It is his evidence that as per the
42
instructions of Assistant Commissioner of Police, he was
standing near the MES cross road along with Police
Constables Mahadevappa and Dinesh Shetty. All were
alert and the bus came and stopped in RNS bus stop and
accused was apprehended. On enquiry, the accused
disclosed his name and P.W.30 seized the article, M.Os.1
to 27. It is also his evidence that on the same day they
went to Hospet and reached the same 6.00 a.m. The
accused led all of us to his house and panch witnesses
were also secured. Based on the voluntary statement of
accused, he took us to his house and he opened the door
of the house and opened the almirah, wherein we found
clothes and also a packet which was covered with the cloth
and on opening the same, we found AK-47 rifle and the
same was seized and identified as M.O.28. The almirah
key was also seized as M.O.29. The accused also removed
other two packets which were kept inside the clothes and
they found 100 live bullets in one packet and in another
packet also found 100 live bullets and out of them, ten live
bullets were taken separately and remaining 90 bullets
each was seized separately and the same has been
43
identified as M.Os.30 and 31. The remaining 90 bullets
each are marked as M.Os.32 and 33. It is also the
evidence of P.W.10 that, the accused has produced a file
which is mentioned as peacock file and the same is marked
as Ex.P21, ration card is marked as Ex.P22, residential
certificate is marked as Ex.P23 and notice issued by the
Commercial Tax Department is marked as Ex.P24, VAT
registration document is marked as Ex.P25, migration
certificate as Ex.P26, lease agreement as Ex.P27, rental
agreement as Ex.P28, copy of the application filed for
ration card as Ex.P29, the Commercial Tax Registration
Certificate as Ex.P30 and driving license is marked as
Ex.P31. He also produced a book from the almirah which
is mentioned as ‘raising son arts cash and credit book’
which contained the bill Nos.701 to 800 and the same was
seized in terms of Ex.P33. The satellite charger is also
seized and the same is identified as M.O.35. A detailed
mahazar to this effect was drawn from 9.15 a.m. to 2.55
p.m. and the same is marked as Ex.P34. It is elicited that
in terms of voluntary statement of the accused, he went to
VRL bus booking centre which is located near welcome
44
gate of Pune and met the official from the said centre one
Viresh Hiremath, and he told that on 06.11.2006 and
26.12.2006, the accused has traveled from Pune to Hospet
by booking the tickets. He also states that he is not
having any document to that effect. He further states
that, he requested the said official to take the print outs
from the computer in respect of the said dates and
accordingly, he has taken the print out in respect of the
dates 06.11.2006, 26.12.2006, 05.11.2006 and
25.12.2006, the same were seized in the presence of
panchas in terms of Ex.P35. It is also elicited in the
evidence that accused took all of them to Hotel Milan
which is situated in Pune Railway station and told that he
had stayed in a room of the said hotel and the Receptionist
was requested to produce the documents to this effect.
The register shows that he had stayed on 14.06.2011, the
same are marked as Exs.P40, P42 and P43 and mahazar
was drawn in terms of Ex.P44. The panch witnesses have
also attested the mahazar. The accused again took us to
Padma Hotel and told that he stayed there on 20.12.2006
and 26.12.2006 and hence, requested the Receptionist of
45
the said hotel to produce the documents in that regard.
The documents are marked as Exs.P45 and P48. The
mahazar drawn in this regard is marked as Ex.P49 and he
identifies his signature as Ex.P49(a). The accused again
took us to Amar Lodge and told that he stayed there on
06.11.2006 and there was an entry in the register and
mahazar was drawn in terms of Ex.P50 and his signature is
marked as Ex.P50(a). Form No. A Extract is marked as
Ex.P51 in respect of room No.204. The documents in this
regard is marked as Ex.P34. The accused also showed the
place where he sent the E-mail to the Pakistanis and
accused took us near Srirama Cyber Café situate at Hampi
and the accused had also furnished his E-mail address.
There were six computers in the said Café and told that he
has send the messages by using his own E-mail I.D. and
there were 33 messages and print out of the same were
taken and the same were marked as Sl.Nos.4 and 4(a).
There was a mail dated 15.10.2005 and the same is
marked as Sl.No.5 and likewise all the messages were
marked up to Sl.No.38. Sl.No.9 is a E-mail sent to Lalak
Khan and the same was seized and mahazar was drawn in
46
terms of Ex.P52. The E-mail print outs are marked as
Ex.P53. The accused has also received an E-mail which is
marked as Ex.P38 from the accused, Lalak Khan and he
was asked to come to Pakistan on 10.02.2006 and the
details of address are also furnished, the same is marked
as Ex.P53(b). It is also his evidence that in Srirama Cyber
Café, two books were seized by drawing the mahazar in
terms of Ex.P52. The license of the cyber café and tax
paid receipts are marked as Exs.P54 and P55. P.W.10 was
subject to cross-examination.
In the cross-examination, it is suggested that
Assistant Commissioner of Police, P.W.30 did not inform
that accused will come along with AK-47 rifle and grenades
and the same was denied. He admits that they were in
civil dress on that day. Except Assistant Commissioner of
Police, other staffs were in civil address, but he does not
remember which dress the Assistant Commissioner of
Police was wearing. The panchnama was read in detail
and thereafter, the same was signed. The Assistant
Commissioner of Police was given instructions to keep their
vehicle near the MES cross i.e., at the distance of 75
47
meters from Tumkur Road. He admits that there is a
Shiva Temple near the said place. He does not know
whether all types of vehicles proceed in the said road. He
admits that the vehicles which come in the early morning,
used the headlight. It is suggested that, it is not possible
to identify the vehicle number when the headlights are put
on and the same was denied. He states that Assistant
Commissioner of Police was having correct information at
what time, the bus is going to come. When he went to the
spot, they were not wearing the police dress but, he
carried his service revolver and he was also wearing bullet
proof jacket. Immediately after the accused alighted from
the bus, the bus proceeded further. Hence, the driver,
Conductor or the passengers were not enquired. He
mentions that, there was a reference in mahazar with
regard to M.O.21, AK-47 and AK-47 was not loaded with
bullets and hence, they have not taken any precaution. He
admits that some time is required to open the hand
grenades and the Assistant Commissioner of Police was
told that the accused is coming with hand grenades. It is
suggested that the Assistant Commissioner of Police was
48
not informed about the accused coming with arms and
ammunitions and the same was denied. He admits that
while drawing mahazar, there was sunlight. It is
suggested that he had already got prepared the mahazar
from his team and has signed thereafter, and the same
was denied. It is true that the seized articles from the
house of the accused were dangerous arms and
ammunitions. The panchas were not wearing bullet proof
jacket. It is elicited that he himself wrote Ex.P34 and he
know the contents of the mahazar. He cannot tell to which
police station limit the place which they have visited
comes. M.O.28, AK-47 rifle and Ex.P21, file were
produced by the accused himself and the same were
seized in the house of the accused at Hospet. It is
suggested that Exs.P21 to 31 were not seized in the house
of the accused and the same was denied. It is suggested
that Ex.P32 was created to suite their convenience and the
same was denied. He admits that in Ex.P38(a), the name
is mentioned as Rahul and in Ex.P39(a) as Ameer. It is
suggested that he did not visit Pune and the accused did
not take him to different places at Pune and the same was
49
denied. It is elicited that Exs.P40, P44, P49 and P50 are
Xerox copies. He admits that Ex.P52 does not contain his
signature. It is suggested that he did not write Exs.P34,
P35, P40, P44, P49, P50 and P52 and the same was
denied. He admits, in the E-mail, nowhere the name of
the accused was found but, the witness volunteers that E-
mail ID of the accused was found and the accused himself
has given his E-mail ID. It is suggested that no such
incident has taken place as deposed in the evidence and
the same was denied.
47. P.W.11 was the Police Inspector and also a
raiding party along with the Assistant Commissioner of
Police who has been examined as P.W.30. In his evidence,
he says that P.W.30 bifurcated the raider parties into five
groups and provided them with bullet proof jacket, torch
and separate vehicles. They left police station at about
4.00 a.m. and went to Gorguntepalya which is located near
Tumkur-Bengaluru Highway, by that time, it was about
4.45 a.m. After their arrival, P.W.30 instructed them as to
where they have to stand. A special instruction was also
50
given to Thammaiah that on arrival of VRL bus bearing
registration No.KA-25-B-6085, he has to give signal and as
soon as it reaches, they have to come near the bus.
P.W.30 also secured the two independent panch witnesses.
At about 5.05 a.m., the VRL bus came near Gorguntepalya
and according to the instructions and signal, we came near
the bus. Only two passengers alighted the bus and as per
the instructions provided by P.W.30, the person was
wearing a cap and jacket and the said person was carrying
two bags i.e., one bag in his hand and another bag on his
shoulder and accordingly, he was identified and
apprehended. On enquiry, he disclosed his name as Imran
Jalal @ Bilal Ahmed S/o Samshuddin Sadarbal Aharathbal.
Accused was carrying two bags one in maroon colour and
another in blue colour. The same were subjected to
verification. He seized the articles from his custody and the
same are mentioned in the mahazar. He reiterates the
contents of mahazar in terms of Ex.P1. On personal
search, two mobile phones and one satellite phone were
seized. On examining the satellite phone, the name stroll
displayed few contact numbers. The accused on being
51
enquired about the said contact numbers, he revealed that
those contact numbers belong to Pakistani Commandos.
He also identifies his signature as Ex.P1(d) on the mahazar
Ex.P1.
In the cross-examination, a suggestion was made
that Ex.P1 was not drawn at the spot and the same was
denied. Further a suggestion was made that it was created
on some other day but showing as the same has been
written on 05.01.2007 at the spot and the same was
denied. He admits that Ex.P1 is in his hand writing. It is
suggested that Ex.P1 was written in the station and
thereafter, the signatures of the panch witnesses and
other investigating officers were obtained and the same
was denied. They got information that the accused is going
to alight at Gorguntepalya and not at Jalahalli Cross. It is
suggested that on the said day, the accused did not alight
from the VRL bus in the said place and the same was
denied. He admits that RMC Yard police station is near to
the place of incident, where the accused was apprehended.
He further volunteers that the place of incident comes
within the jurisdiction of Yeshwanthpur Police station. He
52
states that when the accused was taken to custody, 5
grenades were in his possession. A suggestion was made
that AK-47, 5 grenades and magazines were not seized
from the custody of the accused and the same was denied.
He admits that our soldiers also use AK-47 rifles in large
numbers. He states that he cannot say as to in which
country AK-47 rifles are manufactured based on the
number pattern but the expert can state the same. He
admits that the accused opened the box in which the
grenades was there and accused did not open the
grenades from the bags and shown. It is suggested that as
per Exs.P1 and 81 mahazar and PF, the articles were not
seized at the instance of the accused in the presence of
the panchas and the same was denied.
48. P.W.12 is the owner of the shop at Hampi and
he states that earlier one Payaz was running the business
in the said shop and after his marriage, he gave the said
shop to the accused. P.W.13 in his evidence states that he
was called to the police station, Hospet and requested him
to be the panch witness. Thereafter, accused took them to
his house. The accused went inside his house and removed
53
the lock of the almerah and took out one AK-47 rifle, which
is identified as M.O.28. He also states that there were 200
live bullets in the plastic cover and the police took out 10
bullets each from the cover and placed in the separate two
bottles and sealed and they told him that they would send
the same to FSL at New Delhi for examination. They also
found one box and the accused told that there are bombs
in the said box. On further search, one satellite phone
charger was found. Accused also produced one file which
contains his driving license, ration card, residential
certificate and records pertaining to two wheeler and the
same were marked as Ex.P21 to Ex.P31. Mahazar was
drawn in terms of Ex.P.34. He also identified the material
objects and also his signatures at Exs.P.34(b) to (j).
In the cross-examination, he states that the police
secured him to station by sending police constable. He also
states that another panch witness, an employee of
Kirloskar Company was also present. The police secured
him to the police station at 7.00 a.m. and the police
brought the accused at 9.00 a.m. to the station. He further
states that along with accused, one Bandari, Jitendra and
54
other staff members came from Bengaluru. At about 9.00
a.m., they left police station and went to Ranipet. The
Bengaluru police did not bring anything when they came to
the police station along with accused. He further states
that Hospet Police Inspector also accompanied them and
they went in two jeeps. He was not aware of the name of
the accused until he was brought to the Ranipet house.
The owner of the house also came to the house after their
arrival. He admits that he has no specific identification
mark so as to say that M.O.28 has been produced by the
accused. But he claims that he has signed as panch
witness on M.O.28 at the time of mahazar. The bombs
which were in the box were sealed. He admits that he read
the contents of Ex.P34, which is in Kannada. Mahazar was
drawn till 3.30 p.m. and it was around 5.00 p.m. to 5.30
p.m. when all the articles were sealed. Thereafter, they
were taken to Hampi along with accused. When they
searched the shop of the accused, they did not find
anything. He states that he does not remember as to how
many seals were put on the seized articles. He admits that
if any assistance is required to the persons in the police
55
station, then he used to visit the station and get them
released. He admits that he was the witness to the police
in 4 to 5 cases since last 40 years. He admits that since he
is a trustworthy person and can be believed, the police
used to call him as a witness. It is suggested that since he
is having good relationship with many of the police
officials, at the instance of Police Inspector, he is giving
false evidence against the accused and the same was
denied. It is suggested that Ex.P.34 was not signed at
Hospet and the same was denied.
49. P.W.14 in his evidence states that the police
brought the accused on 17.01.2017 along with panch
witnesses. He is running a cyber café under the name and
style of “Srirama Cyber Café’. He states that six computers
were there in his shop and accused himself opened his
email ID and there were 33 messages in the first email ID
and 26 messages in the second email ID and 2 messages
in the third email ID and also the print outs of the said
emails were taken. He further states that the police seized
5 CPUs from his shop. Panchanama was drawn from 10.30
a.m. to 5.30 p.m. He also identified his signatures at
56
Ex.P.52(b) and Exs.P.52(e) to (k) and also identifies the
print outs at Ex.P.53.
He was subjected to cross-examination. In the cross-
examination, he admits that there are other shops nearby
to his shop. He is running the said shop since 19 years. He
also admits in the cross-examination that he is having
acquaintance with the accused. He also admits that if an
email is received from anywhere in the world, the print out
of the same can also be taken anywhere in the world. He
admits that in Ex.P.53, it is not mentioned that the said
print outs were taken from Srirama Cyber Café but he
volunteers that on perusal of the documents, it shows that
those print outs were taken from his shops. He also admits
that if any person visits his cyber café after the said
incident, he is taking the name and address of such
persons.
50. P.W.15 deposes with regard to the purchase of
the sim-cards by the accused. He states that he is having
acquaintance with the accused. He states that he does not
remember as to how many sim-cards he has given to the
57
accused. In the cross-examination, he admits that while
selling the sim-cards, he used to get records and only on
the basis on the said records, he used to sell the sim-
cards. It is suggested that the accused did not purchase
any sim-card from his shop and the same was denied.
51. P.W.16 in his evidence states that accused
used to come to his shop as a customer, hence, he is
having acquaintance with the accused. He states that he
has given one sim-card to the accused. In the cross-
examination, he admits that to sell the same, he has taken
the records from the accused. It is suggested that accused
has not purchased any sim-card at all and the same was
denied.
52. P.W.17 worked as an Assistant in the VRL
Travels. He states in his evidence that accused booked
ticket to go to Hospet from Bengaluru by paying an
amount of Rs.280/- but he cannot tell the seat number. He
booked the ticket to go to Bengaluru from Hospet and the
bus timings was at 10.30 p.m. The police came and
recorded his statement. He was treated partly hostile. In
58
the cross-examination, he admits that he might have
booked the seat number 13 to the accused. He further
admits that the accused has booked the ticket to travel in
the bus bearing registration No.KA-25-B-6085, which
departs Hospet on 4.01.2007. In the cross-examination, a
suggestion was made that police did not visit his office and
enquired him and the same was denied. He admits that at
the time of enquiring him, the police did not bring the
accused to his office.
53. P.W.18 is the Deputy Secretary of Law
Department and he has been examined with regard to
sanction order. In his evidence, he has given the details of
accusation made in the letter seeking sanction in terms of
Ex.P.57. In the cross-examination, he admits that in terms
of the order of his superior, he has issued Ex.P57 and he
also admits that in Ex.P.57, the name of the superior
officer who has taken the decision after due verification
has not been mentioned. He admits that for what reason
the sanction was granted has not been stated in the
sanction order, but he claims that in the order, it is
specifically mentioned that there are prima facie material
59
against the accused for such accusation. Hence, sanction
has been granted.
54. P.W.19 is working as clerk in the VRL office at
Pune. He states that accused was not brought to his office
and he also identified his signatures on Exs.P.35 to 39. He
claims that Imran has booked the tickets to travel from
Hospet to Mumbai and from Mumbai to Hospet on
5.11.2006 and 6.11.2006 and one Rahul has booked the
ticket to travel on 25.12.2006 and so also, Imran has
booked the ticket to travel on 26.12.2006 in terms of
Ex.P.39. He was subjected to cross-examination treating
him hostile. In the cross-examination, it is suggested that
accused was brought to his office and the same was
denied. In the cross-examination by the accused counsel,
a suggestion was made that Exs.P.36 to 39 were brought
and shown to him by the police and the same was denied.
But he claims that he has only taken the said print outs
from the computer. Further, he admits that the said print
outs were taken by his staff and he has signed the those
print outs.
60
55. P.W.20 is an employee of Milan lodge and he
identifies his signature on Ex.P.40 as Ex.P.40(b). He was
treated hostile by the Public Prosecutor and a suggestion
was made that accused was brought to his hotel and
Ex.P.40 was seized in his presence and the same was
denied. But he admits that as per Ex.P.40(a), the name of
the customer is mentioned as Imran Jalal.
56. P.W.21 is the neighbouring seizure witness and
in his evidence he states that accused was brought to
Srirama Cyber Café and seized the messages from the said
computer. He identified his signatures on Ex.P.53 as
Exs.P.53(a) to (g) and also he says that police have seized
5 CPUs, Ex.P.54 to Ex.P.56 and also two notebooks at
Ex.P.60 and Ex.P.61 and he has signed the mahazar
Ex.P.52. In the cross-examination, the accused counsel
elicited that the accused shop is situated after 10 shops of
his shop and further he admits that the shop of the
accused by name Raising Centre is near to his shop. It is
suggested that accused was supporting Kashmeeri people
in Hampi and hence he is giving false evidence against him
and the same was denied. It is suggested that he is falsely
61
deposing that print outs were taken in his presence and
the same was denied.
57. P.W.22 is the police constable who carried the
seized articles to FSL. In his evidence, he states that as
per the specific instructions, he carried the seized articles
to FSL and identified the passport at Ex.P.62 and the
acknowledgment on the backside of the said passport as
Ex.P.63. It is suggested that he has not handed over the
seized articles to FSL and the same was denied.
58. P.W.23 was the Manager of Jammu Kashmir
Bank and he states that accused No.1 opened the account
in terms of Ex.P.65 and the account of the persons who
introduced the accused to the bank is in terms of Exs.P.66
and 67. The account extract is marked as Ex.P.68. In the
cross-examination, a suggestion was made that Ex.P.68
does not belongs to the accused and the same was denied.
59. PW.24 is the General Manager of BSNL. He
states that request was made in terms of Ex.P.69 to give
details of the mobile number and he gave reply in terms of
Ex.P.70 and certificate is in terms of Ex.P.71. He identifies
62
his signature as Exs.P.71(a) and (b). He admits that in
Ex.P.72 serial Nos.140, 141, 178, 180, 184, 209, 295 are
the calls made to Alaska State in USA and serial Nos.183
and 184 are the calls made to Nepal.
In the cross-examination, he admits that without
obtaining the documents, sim-card will not be activated.
He further admits that the mobile number 9449510825
stands in the name of one Manjunatha Rao and there are
documents in the concerned branch office with regard to
the said documents and so also he admits that Ex.P.71
shows the details with regard to the other mobile numbers
standing in the name of different persons.
60. P.W.25 is the FSL officer and in his evidence,
he states that he received request to examine the articles
and he has received the 14 sealed articles in terms of
Ex.P.73. He gave the report stating that the articles 3 and
9 are the rifles of Polland and also found rifle bullet powder
in the said articles and they were in working condition and
measures 300 meters length. The articles 5 to 8, 10 to 13
are also live bullets and the same can be used in articles 3
63
and 9. He says that after examination, he gave the report
in terms of Ex.P.74. He identified his signature as
Ex.P.74(a) and the signature of the Director as Ex.P.74(b).
He also identified his signatures at Exs.P.75 and 76. He
further reiterates that M.Os.21 and 28 are the make of
Polland. He was subjected to cross-examination. In the
cross-examination, he admits that similar type of M.O.21
and M.O.28 are also available in the Indian Military and
police department and he cannot tell how many of the
Karnataka Police is using the same. He also admits that
AK-47 rifles are also being manufactured in India and India
took the patent from Russia to manufacture the same. He
admits that AK-47 rifles are being manufactured in India
from last 5 to 6 years and also purchasing the same. He
admits that the numbers on MOs.21 and 28 are not
erased. These rifles might have been manufactured in the
year 1958 and 1960. It is suggested that AK-47 rifles are
different from the one which are subjected for examination
and the same was denied.
61. P.W.26 is the Director of FSL. In his evidence
he states that seized articles were sent to FSL and the
64
same were subjected for examination. Item Nos.1 to 10
contains grenade components and the said report has been
given in terms of Ex.P.77. He also states that same can be
carried in any carry bags. Since the said articles contains
safety pin, it would not blast until the safety pins are
opened. If the safety pin is removed and subjected for
blast, it would have an effect to an extent of 10 meters
surrounding.
In the cross-examination it is elicited that it is not
mentioned in the report that what type of plastic is used. It
is suggested that safety pin are not on the ring and the
same was denied. He admits that in his report, he has not
mentioned the use of safety pin. Witness volunteers that
investigating agency did not ask anything about the same.
It is suggested that he has not subjected all the articles for
complete examination and he has given false report and
the same was denied.
62. P.W.27 is the retired police official and in his
evidence, he states that Assistant Commissioner of Police
produced accused and 25 sealed articles before him and
65
also gave complainant. He received the complaint and
registered the case and sent FIR and mahazar to the
Court. The complaint is Ex.P.79 and FIR is Ex.P.80. PF
received is also in terms of Ex.P.81. He identifies his
signature as Ex.P.81(c). In the cross-examination, he
admits that before producing the accused the beat police
have not informed anything about the incident to him. It is
suggested that he is falsely deposing that P.W.30 produced
the complaint and the same was denied.
63. P.W.28 was the sanctioning authority and in
his evidence, he states that Assistant Commissioner of
Police Rameshchandra, after completion of the
investigation gave report and sought the sanction under
Section 196 of Indian Penal Code and after examining the
material, he gave the sanction in terms of Exs.P.82 and
83. In the cross-examination a suggestion was made that
he mechanically gave the sanction order without
examining the material and the same was denied. It is
suggested that investigating officer did not follow the
procedure as contemplated under the Explosive Substance
Act and the same was denied. It is suggested that without
66
examining the statement of witnesses and documents, he
gave the sanction order and the same was denied.
64. P.W.29, who took up further investigation in
this case from P.W.27. In his evidence, he states that he
recorded the voluntary statement of the accused and in his
voluntary statement, he has stated that he will produce
the explosives and other articles if he is taken to his house
in terms of Ex.P.84 and he also recorded the statement of
other witnesses. The accused was produced before the
court and taken to police custody and a circular was given
to Assistant Commissioner of Police in terms of Ex.P.87
and accordingly, Assistant Commissioner of Police-
Jitendranath went to Hospet and seized the articles and
produced the same before him. He also obtained the
permission to diffuse the grenades which were seized at
the instance of the accused. Thereafter, he entrusted the
further investigation to P.W.31 in terms of Ex.P.88 and
Ex.P.89.
In the cross-examination, a suggestion was made
that accused has not given voluntary statement in terms of
67
Ex.P.84. However, he admits that the same is a computer
typed document. He investigated only for four days. He
admits that he directed the concerned staff to go to Hospet
and submit the report in writing. It is suggested that the
contents of Ex.P.84 are false and the same was denied. He
admits that Assistant Commissioner of Police-P.W.30 did
not produce the accused and seized the articles before
him. But he volunteers that the same were produced
before the station house officer. But he claims that he
investigated the matter after he took up the investigation
from P.W.27.
65. P.W.30 in his evidence states that on 4.1.2007
at 11.30 p.m., he received credible information that
accused is traveling in the VRL bus and he is the
permanent resident of Jammu and Kashmir and presently
residing at Hospet. He is coming in VRL bus bearing
registration No.KA-25-B-6085 and carrying the prohibited
articles. He is wearing a woolen cap, black colour jacket
and carrying a maroon colour bag containing assault rifle
and grenades and he is involved in the terrorist activities.
Immediately, he informed the said matter to his higher ups
68
in writing. He secured the bullet proof jacket, torch, lights,
packing materials, laptop and investigating kit and along
with staff he went to the spot at 4.45 a.m. He secured two
persons and requested them to be the panch witnesses by
giving notice. He also gave instructions to his staff and
located them in particular places. He gave instructions to
staff to rush to the spot by giving signal. In the
meanwhile, the bus came and stopped near the newly
constructed building. At that time, they were standing near
the tree next to the bus stop. Two persons alighted the
nd
bus and the present accused alighted as 2 passenger and
he identified him. He was carrying one maroon bag on his
shoulder and blue bag in his hand. When he proceeded to
apprehend him, the accused tried to escape. However, he
caught hold of him and at that time, other officials and
staff surrounded him. He showed his ID Card to the said
person and revealed that he is an police officer. He
questioned him about his name and address. He revealed
his name as Imran Jalal @ Bilal S/o Samshuddin,
Sabarbal, Ajarath Bal, resident of Srinagar, Jammu and
Kashmir State and presently residing in Ranipet at Hospet.
69
When he was subjected to inquiry about the bag, he did
not give proper answers. He opened the bag in presence of
the panch witnesses and found the articles in both two
bags which were detailed in Ex.P.1 Mahazar, which was
drawn from 5.15 a.m. to 9.10 a.m and thereafter, he gave
complaint to the concerned police in terms of Ex.P.79 and
he also identified his signature in the mahazar at Ex.P.1.
Other independent witnesses and officials have also signed
the said mahazar. Since accused gave his voluntary
statement to produce the articles, they left Bengaluru at
12.30 p.m. and reached Hospet at about 7.00 a.m. They
went to Hospet police station at around 8.40 a.m.
Independent panch witnesses were secured with the help
of local inspector. The accused led the panch witnesses by
name Krishna and Umesh and also the police officials.
Accordingly to the voluntary statement of the accused, he
led all of them to his house and produced the articles
which were kept in the almerah and he seized the articles
by drawing the mahaar in terms of Ex.P.34. In the said
house, AK-47 rifles, grenades and also live bullets of 200
in number were seized along with other documents at
70
Exs.P.21 to 33. Mahazar was drawn from 9.15 a.m to 2.55
p.m. and he identified his signature on Ex.P.34.
Thereafter, they came to Bengaluru and he gave the
report.
In the cross-examination, he admits that he has not
given any information about this incident to any other
state intelligence bureau and also the central intelligence
bureau. But he claims that immediately when he received
the information, he communicated to the Jammu and
Kashmir State Intelligence Bureau. It is suggested that
they did not have proper information about the accused
and hence, they did not give any such information to the
Central Intelligence Bureau and the same was denied. He
admits that in the complaint, he has not mentioned to
which terrorist organization, he is a member. It is
suggested that he did not receive any information about
the accused to report the same to the said intelligence
bureau and the same was denied. It is suggested that he
did not receive any information about the member of any
terrorist organization and the same was denied. He admits
that he did not receive any information about the other
71
members accompanying the accused to involve in the
terrorist activities along with the accused but he claims
that whatever the information he has received, he has
mentioned the same in the complaint. He admits that he
gave instructions to prepare Ex.P.1. Ex.P.1-Mahazar is
written in the hand writing since the official Gachinakatte
was not having full fledge knowledge to use the laptop.
Since the proceedings of drawing the mahazar requires
more time and the battery of the laptop would get
damaged, Ex.P.1 has been written in hand writing. He
claims that he might have given the information about the
said incident to the DCP-Ravikanthegowda in writing. But
he does not remember the same. He admits that he has
not mentioned in the mahazar as to how many bullet proof
jackets and weapons were taken. He also admits that they
were also having AK-47 assault rifle. He states that he
cannot tell exactly how many bullet proof jackets were
taken by them. Nearly 10 persons of them went to the
investigation spot. They went in a private car and the
driver of the private car was not provided with any bullet
proof jacket. He admits that if the bullet is fired from AK
72
47 rifle, the same can be prevented by wearing the bullet
proof jacket. It is suggested that Ex.P.1 was drawn in his
office and the same was denied. It is elicited that after
receiving the information, they made all preparation from
11.30 p.m. to 4.00 a.m. to go to the spot. Since they
suspected that they would be attacked, they wore bullet
proof jacket and went to the spot. It is suggested that
Ex.P.1 was prepared to suit their convenience and the
same was denied. It is suggested by the defence itself that
the bus was followed from the out skirts of Bengaluru and
he admits the same. He admits that he did not depute any
staff to stay in the previous bus stop of the Gorguntepalya.
He admits that the spot sketch has to be prepared by the
investigating officer. He admits that he has not given any
information to the drivers of the private vehicles about the
incident. They obtained AK-47 rifles from their City Armed
Reserved Department based on the orders of his superior.
He admits that AK 47 rifle is very dangerous weapon. He is
having training to use the same. All other staffs are also
having training to use the said rifle. He admits that he has
signed Ex.P.1 after completion of the mahazar and
73
thereafter, the complaint was given. The compliant has
been prepared by his staff as per his instructions at the
place of the incident itself. Ex.P1 was written at the spot
on the road side near RNS compound. The key of the
house of the accused was seized at the spot. It is
suggested that as per Ex.P.9, he had not taken the
accused to the Hospet and no recoveries were made at
Hospet.
66. P.W.31 is the one who conducted further
investigation of the matter in terms of Ex.P.89 memo. It is
also his evidence that after taking over the further
investigation, he gave notice under Section 91 of Code of
Criminal Procedure and sought details of the Bank account
of the accused and also identified Exs.P.91, 92 and 93. He
also states that he himself and P.I.-Bhandari and other
staffs along with accused went to Pune and collected the
details at Pune VRL Office and thereafter, accused was
taken to the different place where he used to stay when he
visits Pune. The documents are also seized as per Ex.P.40
to Ex.P.51 and thereafter, he came to Bengaluru. He also
states that he received the FSL report and collected all
74
other materials. He also recorded the further statement of
the accused and went to Hospet and seized the emails and
then concluded the further investigation and filed the
charge sheet.
In the cross-examination of P.W.31, it is elicited that
on 3.2.2007, the bomb diffusing squad diffuses the hand
grenades. It is suggested that as per Ex.P.14, 10 hand
grenades were delivered by him to the squad and the
same was denied. He volunteers that the squad
themselves came to his office and took them. He states
that request was sent to army to come and inspect the
hand grenades on 12.01.2007. The bomb squad came on
03.02.2007. Prior to that on 24.01.2007, army came for
inspection of hand grenades and they gave recommended
letter to defuse immediately. He sent a letter to Police,
Bengaluru City to Turay Company to give the details of
satellite phone but he did not get any reply. It is elicited
that the mobile numbers were not in his name but he had
taken in different names for his criminal activities. The
addresses given were all false. He states that he did not
find any international calls being made by the accused.
75
The VRL travels staff gave Exs.P.36 to 39 on 10.01.2007.
It is suggested that to suit the case, Exs.P.36 to 39 are
obtained and the same was denied. However, it is elicited
that in Ex.P.37, the name of Rahul is mentioned. It is
suggested that he did not go to Pune but wrote Ex.P.51 in
his office and the same was denied. It is suggested that as
per the investigation, had accused received any money
from the banned organization or from any foreign bank
accounts. Witness volunteers in his evidence that for such
illegal activities, no banned organization in their own name
will send money, it will be only through somebody. The
account of the accused was opened on 04.10.1993. He
states that he did not send the hard disc to the laboratory
since the accused himself opened the hard disc in the
Cyber Café using his password and ID. It is suggested that
in the seized emails, no material is forthcoming to show
that he was involved in the anti national activities and the
same was denied. It is suggested that MOs produced in
this case are all implanted and they are brought from the
police training school and not recovered from the accused
and the same was denied.
76
67. P.W.32 who is the PSI, Crime Branch, Pune
deposed in his evidence that P.W.32 came along with his
staff to his office and told that the accused is going to
show the place where he used to stay in Pune during his
visits and requested him to assist them and accordingly,
the police inspector permitted him to accompany them. It
is also his evidence that the accused took them to VRL
office and thereafter to the Hospet where he was staying
during his visit to Pune and seized Exs.P.36 to 39 and he
also identified his signature at Ex.P.35(b). Both the
traveled records and also hotel registers were seized and
mahazar was drawn. He identified his signature as
Ex.P.49(b) apart from Exs.P.45 to 48.
In the cross-examination, it is suggested that for the
first time he is seeing Exs.P.36 to 39 and the same was
denied. It is suggested that Exs.P.36 to 39 are not seized
at Pune and the same was denied. He admits that he has
not signed Exs.P.36 to 39 to show that the same were
seized in his presence, but he admits his signature at
Ex.P.35(b). It is suggested that without reading the
contents of Exs.P.35, 44 and 49, he has signed and the
77
same was denied. He admits that in Ex.P.49, there is no
mention about he calling the panch witnesses and he
volunteers that there is no need of mentioning the same.
Point No.1:
68. The main contention of the learned counsel for
the appellant in his argument is that there was no any
valid sanction to prosecute the accused and the
Sanctioning Authority has not applied his mind and the
order of sanction is not a reasoned order. In the absence
of a valid sanction, the accused cannot be prosecuted for
the offences invoked against him. Hence, prayed this
Court to set aside the order of the trial Court since, the
sanction given by the Sanctioning Authority is not a valid
sanction.
69. Per contra, learned State Public Prosecutor
appearing for the State would contend that there is no
dispute with regard to obtaining the sanction from the
concerned authority and the only contention is that the
sanction is not a valid sanction.
78
70. In order to consider this contention, this Court
has to peruse the order of sanction in Exs.P57, P82 and
P83 and reasoned order has been passed and the
sanctioning authority has applied his mind while passing
the order. In keeping the contentions, this Court has to
peruse Exs.P82 and P83 which are the sanction given by
the Commissioner, who is the competent authority to give
sanction. It is not the case of the accused that the
sanction given by the authority is not competent in respect
of Exs.P57, P82 and P83. On perusal of Exs.P82 and P83,
it is clear that the Commissioner of Police in the sanction
order has discussed in detail the case of the prosecution
and seizure of the articles and so also considered the
report of the FSL and the material collected by the
Investigating Officer to invoke the penal provisions. The
Commissioner of Police has also considered the statement
of witnesses and thereafter has formed its opinion and
accorded sanction to prosecute the accused persons
wherein a detailed order has been passed in terms of
Exs.P82 and P83.
79
71. With regard to Ex.P57, sanction given to
prosecute the accused for the offence punishable under
Unlawful Activities (Prevention) Act, 1967, in the preamble
of the order, it is narrated about apprehending of the
accused, seizure of articles, contents of the complaint and
the material collected by the Investigating Officer during
investigation. There was also a reference in the order that
the material collected by the Investigating Officer was
scrutinized and placed for approval by the Government.
The Government, vide order dated 30.03.2007 accorded
its sanction to prosecute the accused. It is also important
to note that, in order to prove the documents, Exs.P82 and
P83, the prosecution also examined the Sanctioning
Authority. The PW.18 is the Deputy Secretary to the Law
Department, who has issued the sanction order in terms of
Ex.P57. No doubt, in the cross-examination, it is elicited
that for what reason the sanction was accorded is not
mentioned, however, he volunteers to state that prima
facie material was found to proceed against the accused
and also on perusal of Ex.P57, there was a reference in the
preamble with regard to the material collected by the
80
Investigating Officer, the Higher Authority considered the
same and hence, the sanction order was issued by the
Deputy Secretary, based on the order passed by the
Higher Officer.
72. When such being the case and Exs.P57, P82
and P83 provides the details with regard to the material
collected by the Investigating Officer to prosecute the
accused, it cannot be contended that there was no valid
sanction and it is also not the case of the accused that the
Sanctioning Authority is not the competent authority to
accord sanction. When the material has been considered
and an order has been passed, it amounts to a valid
sanction and only question is as to whether the
Sanctioning Authority has applied its mind or not while
passing the sanction order. The Sanctioning Authority has
applied its mind and considered the material collected and
referred the same in the sanction order. Hence, we do not
find any force in the contention of the learned counsel for
the appellant that there was no valid sanction and
accordingly, we answer point No.1 as ‘negative’.
81
Point Nos.2 to 5:
73. Now this Court has to examine the material
available on record, keeping in view the contentions of
learned counsel for the appellant and the learned State
Public Prosecutor for the State whether the Court below
has committed an error in convicting the accused for the
offences invoked against him.
74. The main contention of the learned counsel for
the appellant by referring the judgment reported in AIR
1987 SC 955 in the case of PARAM HANS YADAV AND ORS.
–VS- STATE OF BIHAR AND ORS. is that there must be
some direct evidence to prove the charge of conspiracy, in
case the prosecution relies on circumstantial evidences,
then clear link has to be established and no such material
is placed before the Court.
75. The learned counsel for the appellant would
also rely upon the judgment reported in (2012) 2 SCC 34
82
in the case of KAILASH GOUR AND OTHERS –VS- STATE
OF ASSAM and would contend that the accused has been
implicated only on the ground that he belongs to Muslim
community. He further relies upon the judgment reported
in AIR 1974 SC 1193 in the case of DATAR SINGH –VS-
THE STATE OF PUNJAB and would contend that the
prosecution has failed to prove beyond reasonable doubt
that the accused has involved in the crime.
76. The learned counsel for the appellant relying
upon the judgment reported in AIR 2013 SC 2687 in the
case of SANJAY DUTT AND ORS. –VS- STATE OF
MAHARASHTRA, THROUGH CBI (STF), BOMBAY would
contend that recovery must be found to have been made
as a consequence to the statement made by the accused in
custody. The learned counsel for the appellant also relied
upon the judgment reported in (2014) 7 SCC 716 in the
case of ADAMBHAI SULEMANBHAI AJMERI AND OTHERS
–VS- STATE OF GUJARAT and would contend that the
Court cannot convict an accused, based on an
uncorroborated, unconnected and contradictory retracted
confessions, illegally and forcibly extracted to prosecute
83
innocent and unconnected persons. In the case on hand,
there is no credible chain link and the prosecution has
failed to prove the very involvement of the accused in the
present case.
77. Per contra, learned State Public Prosecutor
appearing for the State referring the judgment reported in
(2013) 13 SCC 1 in the case of YAKUB ABDUL RAZAK
MEMON –VS- STATE OF MAHARASHTRA THROUGH CBI,
BOMBAY would contend that law does not require
corroboration of evidence of independent panch witnesses
duly corroborated by extemporaneous panchanama found
trustworthy. However, in the case on hand, the evidence
of independent witness, P.W.1 is trustworthy since,
mahazar was drawn in his presence in terms of Ex.P1 and
so also mahazar was drawn at Hospet in the presence of
the witnesses P.Ws.10 and 13. Hence, their evidence is
creditworthy and it is not the number of witnesses that
matters and it is the quality of evidence available before
the Court that matters. The very contention of the learned
counsel for the appellant that most of the witnesses are
84
police witnesses and there are no independent witnesses
cannot be accepted.
78. Keeping in view the contentions of the learned
counsel for the appellant and also the learned High Court
Government Pleader for the State, keeping the principles
laid down in the judgment, this Court has to re-appreciate
the evidence available on record.
79. With regard to apprehending of the accused,
the prosecution mainly relies upon the evidence of P.Ws.1,
7 to 10 and 11, in respect of the mahazar drawn for
seizure of the articles at the instance of the accused in
terms of Ex.P1. No doubt, P.W.1 is the independent
witness and other witnesses are those who joined P.W.30
in apprehending the accused, the main contention of the
learned counsel for the accused is that the accused has
been falsely implicated in the case and throughout in the
cross-examination, it is suggested that the material
objects are not seized at the instance of the accused and
the same are secured from the training institute, in order
to falsely implicate the accused in the case. On perusal of
85
the evidence of P.Ws.7 to 11 and so also P.W.30, nothing
worthwhile is elicited to disbelieve the evidence of P.Ws.7
to 11 and 30. In the cross-examination of P.W.1, who is
an independent witness, nothing worthwhile is elicited that
accused was not apprehended at the spot. All these
witnesses in their evidence have specifically deposed that
the accused alighted from the VRL bus and thereafter, he
was apprehended and when he made an attempt to escape
from the clutches of the police, however, he was
apprehended by P.W.30 and other police officials, who
surrounded him. In the cross-examination of P.W.1, he
categorically admits that another panch witness one
Sri Sundaresh was also along with him and both of them
were doing real estate business. It is also his evidence
that P.W.30 has given notice requesting him to be as
Pancha, when they were waiting near Gokuldas Imaging
Building. He also categorically states that bus came at
around 5.00 a.m. and this accused was apprehended and
mahazar was drawn from 5.10 a.m. to 9.00 a.m. and he
also attested the same. It is also important to note that
P.W.1 has identified M.O.21, AK-47 rifle and other material
86
objects. In the cross-examination of P.W.1, he
categorically states when the accused was apprehended,
the accused has categorically stated before them that he
was carrying the seized articles, in order to blast the public
places.
80. The main contention of the learned counsel for
the appellant is that the accused was not apprehended at
the spot. The witnesses, who have been examined as
P.Ws.7 to 11 have categorically deposed with regard to all
of them arriving to Goraguntepalya and apprehending the
accused and supported the case of the prosecution. Apart
from that, in the cross-examination of P.W.30, the defence
itself suggested that they have followed the said bus from
the outskirts of Bengaluru and the very suggestion made
by the defence in the cross-examination of P.W.30 proves
that the bus in which the accused was traveling from
Hospet to Bengaluru was followed by police and accused
was apprehended. In the cross-examination of P.W.30, it
is also suggested that mahazar, Ex.P1 was drawn in his
office and the same was denied by all the witnesses.
However, the contents of the mahazar, Ex.P1 was proved
87
by examining P.W.1, the independent witness and other
official witnesses i.e., P.Ws.7 to 11 and 13. Merely because
they are official witnesses their evidence cannot be
discarded unless the same is not worthy in acceptance.
81. It is the case of the prosecution that the
voluntary statement of the accused was recorded in terms
of Ex.P84 and based on his voluntary statement, the
accused led the team to Hospet and produced AK-47 rifle
which is marked as M.O.28 and so also other articles like
grenades etc., which were kept in the almirah and the
same were seized by drawing the mahazar in terms of
Ex.P34.
82. It is to be noted that the prosecution relies
upon the evidence of P.Ws.10 and 13 with regard to
seizure of articles at the instance of accused in his
residence at Hospet. P.W.13 is the independent witness,
and P.W.10 who accompanied P.W.30 in their evidence
states that they went to the police station and P.W.30 and
other police officials came from Bengaluru along with the
accused. P.W.10 and 13 in their evidence have identified
88
M.O.28, AK-47 rifle seized in the house of the accused.
They also deposed with regard to the grenades and live
bullets seized to an extent of 200 wherein, sample bullets
were taken separately. They also state that satellite phone
charger and a file was seized in the house of the accused
and the same are marked as Exs.P35 and P21 respectively.
Ex.P34 is the mahazar drawn to this effect. In the cross-
examination, P.W.13 admits that the house of the accused
situates in the nest conservancy of his house and he is
having acquaintance with the owner of the said house.
Though he cannot state the day of the mahazar, however
he states that he was secured by sending the Police
Constable. The other panch witness is the employee of the
Kirloskar Company, who came to know about bringing the
accused to Hospet on the same day and he also signed the
same. The accused was accompanied by P.W.30, and
other staff.
83. The evidence of P.W.10 and 13, is clear that
local Police Inspector Shirolkar also accompanied to the
house of the accused and all of them went in two jeeps
and he was not having any acquaintance with the accused
89
prior to the seizure. In the cross-examination of P.W.13,
apart from eliciting that M.Os.28 and 29, AK-47 rifles are
similar, he categorically states that he has signed on the
cover of M.O.28. There is nothing on record to disbelieve
the evidence of P.W.13, who is an independent witness.
No doubt, P.Ws.10 and 30 and other official witnesses
have supported the case of the prosecution, it is pertinent
to note that, in their evidence also, nothing worthwhile is
elicited to disbelieve the case of the prosecution. The very
seizure of the articles at the instance of the accused in his
residence at Hospet by drawing the mahazar is proved by
examining P.Ws.10 and 13. Hence, there is a force in the
contention of the learned State Public Prosecutor for the
State that the prosecution has proved beyond reasonable
doubt the seizure of prohibited articles at the instance of
the accused both at Bengaluru as well as Hospet and the
independent witnesses P.Ws.1 and 13 have supported the
case of the prosecution apart from the evidence of P.W.7
to 11 and P.W.30.
84. It is also pertinent to note that, in the cross-
examination of the witnesses, nothing is suggested that
90
police were having ill-will against the accused, in order to
falsely implicate him in a serious offences invoked against
him, except the suggestion that the accused was
supporting the Jammu and Kashmir residents at Hampi
which cannot be accepted. In order to falsely implicate the
accused, there must be some cogent evidence and there is
no material on record. On perusal of the entire evidence
of the prosecution, nothing is elicited from the prosecution
witnesses to come to a conclusion that the accused has
been falsely implicated in the case as contended by the
learned counsel for the accused.
85. The other material witness relied upon by the
prosecution is P.W.17, who is the employee of VRL office.
In his evidence, he states that on a particular date, the
accused came and booked the ticket to go to Bengaluru
from Hospet. Though in his evidence he states that he
could not state the seat number, however, when he was
cross-examined by the learned Public Prosecutor, he states
that he might have booked seat No.13. In the cross-
examination, he categorically denies the suggestion that
police did not come and enquire with him with regard to
91
traveling of the accused from Hospet to Bengaluru in their
bus. However, he categorically admits that accused was
not brought to his office.
86. The other contention of the learned counsel for
the appellant is that, no material was collected by the
prosecution to show that accused had traveled from
Hospet to Bengaluru. It is to be noted that the evidence of
P.Ws.7 to 11 and 30 is clear that, after getting the
information at 11.00 p.m., P.W.30 secured the other staff
and so also the independent witness, P.W.1 at the spot
and apprehended the accused at the spot itself. As
already pointed out, the defence itself has suggested in the
cross-examination of P.W.30 that they have followed the
vehicle in which the accused was traveling from the
outskirts of Bengaluru and no doubt, the driver, conductor
or any co-passengers of the bus have not been examined.
87. The learned counsel for the accused in his
argument mainly contends that neither the driver or the
conductor nor the co-passengers of the bus have been
examined. It is to be noted that, after alighting from the
92
bus, the accused was apprehended and when he made an
attempt to escape from the clutches of the police, he was
apprehended. Normally, after the passengers alight from
the bus, the driver of the bus proceed further. In the case
on hand, the accused was not apprehended in the bus and
only after alighting from the bus, he was apprehended.
When such being the case, the very contention of the
learned counsel for the appellant that no material to the
effect that the accused had traveled from Hospet to
Bengaluru and neither the driver or the conductor nor the
co-passengers of the bus have been examined cannot be
accepted.
88. The prosecution also relies upon the other
circumstances with regard to seizure of E-mail
correspondences by the accused which are marked as
Ex.P53 series. P.W.31 is the Investigating Officer, who
carried out the further investigation of the case and seized
the internet messages. The prosecution relies upon the
evidence of P.W.21, who is the witness for seizure of
E-mail corresponded by the accused. P.W.21 in his
evidence states that the accused took all of them to
93
Srirama Cyber Cafe and there were six computers and out
of six computers, he states that he operated five
computers and he himself using his E-mail I.D. took out 33
messages which he had sent from his I.D. The accused had
sent messages using his E-mail I.Ds. as Sajjad Bhat,
Rising sum arts and goodnews. The E-mail
correspondences and internet messages which were seized
are marked as Ex.P53 (a) to (g). In the cross-examination
of P.W.21, he categorically states that he was having
acquaintance with the accused since, he is also having a
shop near to the shop of the accused and the very answer
is elicited by the learned counsel for the accused himself.
Hence, it is clear that the witness P.W.21 was having
acquaintance with the accused. It is suggested that he is
falsely deposing that those printouts were taken in his
presence and he has signed the same and the same was
denied. Nothing worthwhile was elicited in the cross-
examination of this witness with regard to seizure of
E-mail corresponded by the accused. The prosecution
relies upon the documents to state that the accused was
having E-mail correspondence with the foreign nationals
94
and other accused persons and there is nothing on record
to disbelieve the evidence of P.W.21.
89. Apart from the evidence of P.W.30, the other
circumstance relied upon by the prosecution is with regard
to diffusing of bombs which were seized at the instance of
the accused. In order to substantiate the claim of the
prosecution, the prosecution has relied upon the evidence
of P.Ws.3 and 4. P.W.3 in his evidence states that when
he was standing near the Yeshwanthpura Circle signal,
police came and took him stating that a bomb has to be
diffused and he has to become a Pancha. He found five
grenades and the same were handed over to P.W.4. He
states that P.W.4 took the same in a jeep to a firing range
and it took up to 4.30 p.m. to diffuse the same and
thereafter, they came with the diffused grenades and
mahazar was drawn in terms of Ex.P9. Along with him,
one Sanjeeva Sharma was with him and he has also signed
the same. In the cross-examination, he admits that he
does not have any knowledge about the bomb and he
believed the version of the Investigating Officer and
identified them as bombs. The Investigating Officer has
95
not showed him the same by opening two boxes in the
police station. P.W.4 and other officers diffused the bomb.
In the cross-examination of P.W.3 also, except eliciting
that he has no knowledge about the bomb, nothing was
elicited as to he accompanied to the firing range along with
P.W.4. The evidence of P.W.4 is also clear that on
03.02.2007, he went to the police station and thereafter,
took the bombs for diffusing and while diffusing, he also
removed safety liver and found the chemicals. In the
cross-examination of P.W.4, he states that he was not
knowing the contents of the boxes, until it was opened. It
is suggested that neither he went to the police station nor
collected the grenades for disposal and the same was
denied. In the cross-examination of P.W.4, except a
suggestion that he has not diffused the grenades and he
gave the false report, nothing worthwhile is elicited.
Hence, it is clear that after seizure of the grenades in
terms Exs.P1 and P34, the same were diffused and the
evidence of P.W.4 also substantiates the case of the
prosecution that the live grenades seized were diffused.
96
90. P.W.5 also supports the case of the
prosecution that he was requested to examine the arms
and ammunitions and one T.K. Haridasan was deputed,
who states that he was taken to yeshwanthpur police
station. He gave the report in terms of Exs.P14 to P16.
Having taken note of the evidence of P.Ws.3, 4 and 5, it is
clear that after seizure of the live grenades, the same are
diffused.
91. The evidence of P.W.6, who is the carrier of
the seized articles is clear that he took the seized articles
to the FSL. P.W.22 is also a carrier of seized articles to the
FSL. In his evidence he states that he took and handed
over the sealed articles to the FSL department. The
witness P.W.25 is the Director of Truth Lab. In his
evidence, he states that under Ex.P23, sealed articles were
sent for examination and he gave the report in terms of
Ex.P74 after subjecting the seized articles for examination.
It is his specific evidence that articles 3 and 9 are the AK-
47 rifles and they are the make of Polland. In the cross-
examination, no doubt it is elicited that now India is also
producing AK-47 rifles from last five to six years, but in
97
the cross-examination, the defence itself has elicited that
in M.Os.21 and 28, the number of the rifles were not
erased and also got elicited that both the rifles were the
make of 1958 and 1960. It is suggested that report was
given only to help the police and the same was denied.
92. The other FSL witness is P.W.26. In his
evidence, he states that the seized articles which were
sent to them were examined and he gave the report in
terms of Ex.P77. He categorically states that if safety pins
are removed, there is no chance of blasting. In the cross-
examination, the defence itself has elicited that safety pins
are used. It is elicited that, in his report, he has not
mentioned the same but, volunteers to state that
Investigating Officer did not ask any opinion with regard to
the same and hence, he did not mention the same. It is
suggested that without examining the grenades, he gave
the report and the same was denied.
93. Having considered the evidence of P.Ws.25 and
26 and also the other witnesses, who have carried the
articles to the FSL, it is clear that seized articles were
98
prohibited articles and the same were subjected for
examination and the report has also been obtained. No
license or documentary evidence has been placed before
the Court that the accused was permitted to carry and
possess the same.
94. The other circumstance relied upon by the
prosecution is that accused had visited Pune in connection
with securing the prohibited articles. In order to
substantiate the same, the prosecution got marked
Exs.P36 to P39 and to prove the same, examined the
witness P.W.19. P.W.19 states that police came and
seized Exs.P36 to P39 and he has signed Ex.P35, mahazar.
He was treated as partly hostile and suggestion was made
that accused was brought along with the Investigating
Officer and the same was denied. But in the cross-
examination, a suggestion was made that he did not take
out the print and police only brought Exs.P36 to 39 and
the same was denied. He categorically states that he
himself took the print outs from the computer. But he
admits that, his staff took the print outs and he has signed
the same. In the cross-examination also, nothing is
99
elicited to disbelieve his evidence. The documents which
have been seized under Exs.P36 to P39 are the travel
made by the accused from Pune to Hospet and Hospet to
Pune. No doubt, in the evidence it is elicited that Ex.P37
(a) stands in the name of one Rahul dated 25.12.2006, the
other documents dated 05.11.2006 and 06.11.2006 in
terms of Ex.P38, it is evident that the accused himself has
traveled from Mumbai to Hospet and in terms of Ex.P39,
from Mumbai to Hospet. It is also important to note the
evidence of P.W.20, who is an employee of the Milan
Lodge. He identifies the seizure of documents of the hotel
in terms of Ex.P40. Though he has turned hostile, in the
cross-examination, he admits that in Ex.P40 (a), the
customer name is mentioned as Imran Jalal. He was not
subjected to cross-examination by the learned counsel for
the accused.
95. The witnesses P.Ws.19 and 20 have also
spoken with regard to the seizure of the documents from
the concerned hotel and P.W.31, the Investigating Officer
has collected the material taking the accused to Pune. In
the cross-examination of P.Ws.19, 20 and 31 also, no
100
fruitful answers were elicited to disbelieve the evidence of
the prosecution regarding the visit of the accused to Pune.
96. Having considered both oral and documentary
evidence available on record, particularly, the evidence of
P.Ws.1, 7 to 11 and 30 in respect of Ex.P1, mahazar about
apprehending the accused and seizure of the material
objects i.e., M.Os.1 to 23 at the spot and also the evidence
of P.Ws.13 and 14 in respect of seizure of banned articles
in the house of the accused at Hospet, wherein AK-47 rifle,
live grenades and live bullets were seized, the prosecution
has proved beyond reasonable doubt the fact that the
accused was possessing the prohibited articles stated
supra. The Court below has considered the evidence of
the prosecution witnesses, no doubt the records reveal
that more number of witnesses are the official witnesses,
who participated in apprehending the accused and seizure
of the articles. However, the independent witnesses have
also supported the case of the prosecution. In the cross-
examination of independent witnesses i.e., P.Ws.1, 13 and
14, nothing is elicited to disbelieve the case of the
prosecution, though the learned counsel appearing for the
101
appellant vehemently contends that the accused has been
falsely implicated. There is nothing on record to show that
the Investigating Officer, who seized the articles at the
instance of the accused, had ill-will against the accused.
Nothing is elicited in the evidence of the witnesses also
that they had any ill-will against the accused, in order to
implicate him falsely in the case. Though made dispute
with regard to the seizure of live grenades, bullets and
banned articles i.e. AK-47 rifles etc. Nothing is elicited in
the cross-examination to disbelieve the case of the
prosecution.
97. The main contention of the learned counsel for
the appellant is that the source of these articles were not
investigated and traced by the Investigating Officer. The
said contention cannot be accepted. It is to be noted that
the arms and ammunitions which the accused had
possessed were the make of Polland and FSL report is also
clear that they are the make of Polland. When the
prosecution is able to prove that the same was seized at
the instance of the accused, the burden shifts on the
accused to disprove the same. On perusal of the 313
102
statement of the accused, there is no explanation on the
part of the accused except, total denial. The accused has
to explain with regard to the possession of the same and
he has not produced any license, permit or documentary
evidence that he is permitted to possess the same. Apart
from that, the evidence of the prosecution witnesses
P.Ws.1 to 32 is consistent with regard to apprehending the
accused and seizure of articles at the instance of the
accused. Hence, the Court has to take note of the quality
of the evidence and not the quantity.
98. The other contention of the learned counsel for
the appellant is that independent witnesses are very less
and official witnesses are more. Having considered the
factual aspects of the matter and when the information has
been received in the night, the Court also cannot expect
more number of independent witnesses and the evidence
of the independent witness on record is more creditworthy
and inspires the confidence of the Court and nothing is
elicited in the cross-examination of these independent
witnesses to disbelieve the case of the prosecution.
103
Hence, we do not find any merit in the appeal to come to
other conclusion.
99. The Court below has appreciated the material
available on record in proper perspective and has rightly
come to a conclusion that the material collected by the
prosecution substantiates the case of the prosecution.
100. It is also the contention of the learned counsel
for the appellant that in order to invoke Sections 20 and
23(1) of the Unlawful Activities (Prevention) Act, 1967,
there is no material before the Court. No doubt, there is
no documentary proof that he was a member of Laskhar-e-
Toiba, however, to bring the accused within the purview of
Sections 20 and 23(1) of the Act, it is to be noted that the
prosecution has to place material before the Court. In the
case on hand, the prosecution has proved with regard to
the fact that the accused was possessing M.Os.21 and 28
i.e., AK-47 rifles, grenades and live bullets, which were
seized. When the accused has failed to explain with regard
to possession of these banned articles, the Court has to
draw an inference that there was conspiracy to wage war
104
against the Country since, the accused was also possessing
prohibited explosive substances. No doubt, the other
accused persons have not been subjected for trial,
however, the material collected by the prosecution
substantiate the fact that the accused was possessing
arms and ammunitions, grenades and also live bullets and
there is no explanation on the part of the accused with
regard to the same, except general denial. The
prosecution has proved beyond reasonable doubt that the
accused was possessing the same and the evidence of the
prosecution witnesses corroborates the same and nothing
is elicited in the cross-examination of these witnesses to
disbelieve the case of the prosecution and further more
there is no material before the Court for false implication
of the accused. Having considered the material on record,
the principles laid down in the judgments referred by the
learned counsel for the appellant are not applicable to the
case on hand and the same will not come to the aid of the
accused.
105
101. Even in the absence of direct evidence with
regard to the conspiracy and that he was the member of
Lashkar-e-Toiba, the material collected by the prosecution
i.e. Ex.P53 (a) to (g) i.e. E-mail correspondences and the
weapons which were in the custody of the accused, it is
nothing but an act of waging war against the Country. The
accused was not only having contacts with the Indian
national, but he was also having contacts with the foreign
national, who is arraigned as accused No.2 and he has also
corresponded with him through E-mail. The E-mail also
discloses that the address is furnished to the accused to
visit Pakistan and accordingly the accused visited Pakistan.
When such being the case, the prosecution has proved its
case beyond reasonable doubt and the very contention
that the trial Court ought not to have convicted the
accused for the offence punishable under Sections 20 and
23(1) of the Unlawful Activities (Prevention) Act, 1967 also
cannot be accepted since, the accused was possessing the
banned articles which are capable of mass destruction. The
Court also cannot expect any direct evidence with regard
to membership with Lashkar-e-Toiba and the banned
106
organization doesn’t make any membership and the same
has to be gathered with the totality of the evidence. There
are ample evidence before the Court that he indulged in
the illegal activities having nexus with people who are
waging the war against the state. Particularly when he was
apprehended he was possessing the banned and prohibited
arms and ammunitions i.e., one AK assault rifle, two
plastic packet containing 100 rounds of ammunition, one
packet containing two magazines of AK assault rifle, one
rifle sling, one bed sheet and one pyjama. In the other bag
they found one chadar, one jamkhana, one rasai, five hand
grenades, one travel book, one Bengaluru City map, one
Thuraya satellite phone and one letter pad book. Further,
on personal search, they found one Nokia mobile phone
from his right hand side pocket, one Nokia mobile phone in
the right side of leather jacket pocket, one leather purse in
his back pant pocket with one used and three unused SIM
cards of BSNL, cash of Rs.1,500/-, one passport size photo
of a male, membership card of gym, Jammu and Kashmir
I.D. Card, Driving Licence, PAN Card, Handicrafts Owners
Association membership card, Jammu and Kashmir bank
107
ATM Card, Jammu and Kashmir Bank slip, one slip bearing
numbers in green ink, two slips bearing phone number and
one slip with number said to be of passport, one key Alba
make found in the right side of the pant pocket and one
traveling ticket with the name Imran in the left side of
pant pocket. The same were seized by drawing mahazar in
terms of Ex.P.1 and the same has been proved by
examining the witnesses. The seized articles are marked
as M.Os.1 to 17 and 19 to 37. Based on his voluntary
statement, he took the Investigating Officer and others to
his residence and in the presence of panch witnesses, the
prohibited articles viz., AK-47 rifle and the same was
seized and identified as M.O.28. The almirah key was also
seized as M.O.29. The accused also removed other two
packets which were kept inside the clothes and they found
100 live bullets in one packet and in another packet also
found 100 live bullets and out of them, ten live bullets
were taken separately and remaining 90 bullets each was
seized separately and the same has been identified as
M.Os.30 and 31. The remaining 90 bullets each are
marked as M.Os.32 and 33. The satellite charger is also
108
seized and the same is identified as M.O.35. A detailed
mahazar to this effect was drawn from 9.15 a.m. to 2.55
p.m. and the same is marked as Ex.P34. The accused has
not explained the possession of these banned articles in
his 313 statement. In the absence of any explanation in
that regard on the part of the accused, the Court has to
accept the evidence of the prosecution and we do not find
any reason to set aside the judgment of conviction. The
Court below has given anxious consideration to both the
oral and documentary evidence and has taken note of the
material, circumstantial evidence and accepted the case of
the prosecution. The contention that there is no material to
invoke the offence under Section 20 and 23(1) of Unlawful
Activities Prevention Act, 1967 cannot be accepted. The
Court while invoking the offences has considered the
material on record, particularly the possession of arms and
ammunitions, live grenades, live bullets, map and
magazines and also considered the FSL report and the
evidence of the FSL report and also the evidence of the
FSL witnesses i.e., P.Ws.24 and 25 and has rightly
appreciated both oral and documentary evidence. Hence
109
there are no grounds to reverse the findings of the Trial
Court.
102. In view of the discussions made above, we
pass the following:
ORDER
(i) The appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE
MD/ST/PYR