Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2008
(Arising out of SLP (Crl.) No. 6506 of 2006
Mahmood Rajasa Saiyed ...Appellant
Versus
State of Gujarat ...Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a Division Bench of
the Gujarat High Court dismissing the appeal filed under Section 34 of
Prevention of Terrorism Act, 2002 (in short ‘POTA’).
3. Factual details have been indicated in Criminal Appeal (Arising out
of S.L.P (Crl.) No.4876 of 2006) disposed of today.
4. Appellant was arrested in connection with POTA Case No.12 of 2003
arising out of ICR No.6 of 2003 of the DCB Crime Police Station,
Ahmedabad for offences punishable under IPC, Arms Act and POTA. An
application for bail was filed in terms of Section 49(6) and (7) of POTA.
The bail application was rejected primarily on the ground that the appellant
was found in possession of country made revolver and foreign made pistols
and undisputedly same was recovered from his possession. Ten live
cartridges were also recovered from another co-accused. The statement of
the co-accused was recorded under Section 32 of POTA. The High Court
held that it is a fit case for grant of bail. Though, there was allegation of
illegal custody no material was placed in that regard. In view of the reasons
recorded by the High Court and the trial Court for rejecting the bail
application, we are not inclined to interfere with the appeal.
5. The Trial Court has observed as follows:
“It is true that, the statement of Anas does not disclose
this fact but, when the notification u/s 4 of the POTA is
in effect and when the accused are charge-sheeted for the
2
offence u/s 120-B, criminal conspiracy, the Court sees no
reason as to why at this juncture the discretion should be
used in his favour especially when the criminal
conspiracy is alleged to be intended by the accused to
terrorize the people of a particular section as well as to
shake the integrity and unity of the nation in the
aftermath of Godhra incident where some of the accused
have also taken the training from the neighbouring
country Pakistan in deadly weapons, arms and
ammunitions and who also intended to make use of that
training by procuring weapons to execute the said
conspiracy which are allegedly supplied by the present
applicant accused.”
6. The High Court has also observed in this regard as follows:
“The appellant was found in possession of country made
revolver and foreign made pistol and the same was
recovered from his pocket. The panchnama in respect
thereof was prepared. The joint panchnama, which was
prepared also mentions about the 10 live cartridges
which were recovered from another accused Mohd.
Tarik. The statements of the co-accused recorded under
Section 32 of the POTA have been perused by us and
prima facie, the statements given by the co-accused
indicate involvement of the appellant in the commission
of crime. The contention raised by the learned Advocate
for the appellant that the statement of the co-accused
Anas Machiswala does not disclose prima facie
involvement of the appellant is without any substance, as
notification under Section 4 of the POTA was in effect
when the accused was charge-sheeted, and since the
accused was charge-sheeted for the offence punishable
under Section 120B, which is for criminal conspiracy,
we see there was no reason to enlarge the appellant on
regular bail. With regard to the statement of co-accused,
which was recorded under section 32 of the POTA, save
3
and except the statement recorded under section 32 of
the POTA, further corroboration was also forthcoming,
Thus, the Court has to look into the entire material which
was available against the accused. The prima facie
evidence was available against the appellant and as he
was found in possession of the fire-arms, the learned
Special Judge has rightly not used the discretion to
enlarge the appellant on bail and we also see no reason to
interfere with the order passed by the learned Judge in
appeal preferred by the appellant under Section 34 of the
POTA. As regards the next submission of learned
advocate for the appellant that the accused has remained
in judicial custody for nearly two years, we have
considered the provisions of sub-sections (6) and (7) of
section 49 of the POTA and the rigorous imposed
therein. The rigorous would definitely go with the
completion of the period of one year as contemplated
under sub-section (7) of section 49 of the POTA, but
considering the provisions of section 439 of the Code of
Criminal Procedure along with evidence available
against the accused, in our view, the accused has not
made out a case for this enlargement on regular bail.”
7. However, it is stated by learned counsel for the respondent-State that
the trial is at the advance stage. The trial Court is requested to complete the
trial as early as practicable.
8. The appeal is dismissed.
………………………...J.
(Dr. ARIJIT PASAYAT)
4
………………………...J.
(P. SATHASIVAM)
New Delhi,
November 11, 2008
5