Mohd. Jalees Ansari and others Vs. Central Bureau of Investigation
[Criminal Appeal No.546 of 2004]
Uday U. Lalit, J.
1. This appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA Act) challenges the judgment and final order dated 28.02.2004 passed by the Designated Court Ajmer, Rajasthan in TADA Special Case No.6 of 1994. Originally sixteen accused persons were tried for having committed offences under TADA Act and other enactments. Accused No.6 Irfan Ahmad escaped from custody while the trial was going on and therefore his case was separated. He was later arrested in June, 2015 and is now being proceeded against separately. Accused No.12 Mohd. Azeemuddin though convicted and sentenced by the Designated Court was found to be juvenile on the date of occurrence in this appeal and as such his case stands separated. All the other accused namely A-1 to A- 5, A-7 to A-11 and A-13 to A-16 are presently in appeal.
2. There were bomb blasts in various trains during the night intervening 5th and 6th of December, 1993.
(i) An explosion occurred around 10:50 p.m. on 05.12.1993 in Rajdhani Express running from New Delhi to Howrah. In that explosion near Kanpur Railway Station, two persons were injured. FIR No.595/1993 (Ext. P-307) of P.S. GRP Kanpur was accordingly registered.
(ii) At about 5 a.m. in the morning of 06.12.1993 an explosion took place in Rajdhani Express running from Howrah to New Delhi in Kanpur Division. However no major injury was suffered by anyone. This led to filing of FIR No.765 of 1993 (Ext. P 426) of P.S. GRP Allahabad which was later re-registered as FIR No.597 of 1993 of P.S. GRP Kanpur.
(iii) An explosion occurred at about 5:15 a.m. on 06.12.1993 in Rajdhani Express running from Mumbai Central to New Delhi near Kota Railway Station which caused injuries to five persons leading to registration of FIR No.174 of 1993 (Ext. P60) of P.S. GRP Kota.
(iv) At about 6 a.m. on 06.12.1993 an explosion took place in Flying Queen running from Surat Railway Station to Mumbai Central, near Bestan Railway Station causing injury to one person. This led to lodging of FIR No.132 of 1993 (Ext. P 150) of P.S. GRP Valsad.
(v) At about 7:05 a.m. on 06.12.1993 a bomb exploded in A.P. Express running from Hyderabad to Nizammudin. This explosion occurred in general compartment while the train was at Moula Ali Railway Station causing death of two persons. This led to registration of FIR No.251/1993 (Ext.D-63) of PS GRP Malkajgiri.
(vi) A device meant to cause explosion was detected by a watchful passenger in Bangalore Kurla Express while the train was near Karjat Railway Station. The device was thrown out of the Railway compartment and as such did not cause any damage. This incident led to registration of FIR No.91 of 1993 (Ext.D-162) of PS GRP Karjat.
3. All the aforesaid six crimes were registered against unknown persons. Out of the aforesaid six incidents, the explosion that occurred at Maula Ali Station in Hyderabad had caused death of two persons. PW 117 P. Chandrashekar Reddy, Superintendent of Police, Ranga Reddy Distt, on receiving information from Police Control Room reached the site at about 8:30 a.m. on 06.12.1993 and dictated proceedings Ext.P 450 later in the Police Station invoking provisions of TADA Act. Ext.P-450 was to the following effect:-
"PROCEEDINGS OF THE SUPRINTENDENT OF POLICE: RANGA REDDY DIST. PRESENT: SRI. P. CHANDRA SEKHAR REDDY, IPS.,
No. 251/Camp/SP-RR/93 dated 06.12.1993
Sub:-Cr.No.251/93 of P.S. Malkajgiri Sri P. Radha Krishna Rao, Sub-Inspector of Police, Malkajgiri P.S., sent the contents of the complaint given by Sri. Ahmed Hussain, which revealed the facts that attracts Section 3, 4 and 5 of TADA besides others Sections of Law. Having satisfied, I am permitting the S.I. to register the case U/s 3, 4 and 5 of TADA besides other Sections of Law.
Sd/-
dated 06.12.1993
Superintendent of Police,
Ranga Reddy District
To
Station House Officer, Malkajgiri P.S.
Copy to S.D. P.O Malkajgiri for inf."
FIR No.251 of 1993 was therefore registered for offences punishable under Sections 3, 4 and 5 of TADA Act besides other provisions. Out of the aforesaid six FIR's only FIR No.251 at 1993 of PS GRP Malkhajgiri was registered for offences under TADA while the provisions of TADA were not initially invoked in rest of the FIR's.
4. Vide notifications dated 21.12.1993 and 28.12.1993 the crimes registered by first Five FIR's, where the explosions had in fact occurred were transferred to Central Bureau of Investigation ("CBI", for short) for investigation. The CBI thereafter re-registered the crimes as R.C. No.43(S) /93 of CBI Lucknow, R.C. No.44 (S)/93 of CBI Lukcnow, R.C. No.37 (S)/93 of CBI Jaipur, RC 43(S)/93 of CBI Ahmedabad and RC No.32 (S)/ 93 of CBI Hyderabad against those registered under Serial No.(i) to (v) respectively of the preceding paragraph. PW 148 R.P. Kaushal was the Investigating Officer as regards both crimes registered at Lucknow. He was also the Investigating Officer regarding the crime registered at Jaipur but was later replaced by PW 150 P.D. Meena. PW 145 K S Nair was the Investigating Officer as regards the crime registered at Hyderabad. He was initially in charge of investigation regarding the crime registered at Ahmedabad as well, but was later replaced by PW 140 V.K. Bindal.
5. PW 145 K.S. Nair reached Ahmedabad on 28.12.1993 and sent a requisition on 29.12.1993 to the Director, FSL, Ahmedabad and received Report Ext. P-506 dated 30.12.1993. From reading of the documents and other case papers he found that the provisions of TADA Act were attracted to the case and therefore prepared Report dated 08.01.1994 seeking approval for adding provisions of TADA Act. He was however required to go to Hyderabad on 11.01.1994. While in Hyderabad, he came to know about arrest of A1 Dr. Jalees Ansari on 12.01.1994 in connection with Bombay Blast Case. He, therefore, went to Mumbai on 13.01.1994 and reached STF Office at 7:00 pm. From his interrogation, involvement of said A1 Dr. Jalees Ansari in the serial train blasts and that of A3 Habib Ahmed Khan and A4 M. Jamal Alvi was discovered.
6. On 13.01.1994 PW 62 H.C. Singh, SP, STF, CBI also came down to Mumbai from New Delhi and PW 145 K.S. Nair had discussion with him in the matter including the result of the interrogation of A1 Dr. Jalees Ansari. PW 145 K.S. Nair, who was carrying with him copy of the Report prepared by him on 08.01.1994, submitted it to PW 62 H.C. Singh, whereupon PW 62 H.C. Singh gave his approval for adding the provisions of TADA Act. This Report Ext. P-246 was to the following effect.
"Sub: Investigation of RC 43(S)/93-CBI/Ahmedabad Case RC 43(S)/93-CBI/Ahmedabad has been registered on 23.12.93 on transfer from the local police authorities u/s 307, 120-B IPC (Indian Penal code, 1860) and Sec. 3,4,5 of Explosive Substances Act of 84, and Sec. 3(2) of the Prevention of Damage of Public Properties Act. Facts in brief are that one bomb exploded in the flying queen train which left Surat Station at 5:30 AM of 6-12-93 for Bombay, in IInd class compartment No.7392(D-I) the train was bound for Bombay. The explosion took place exactly at 6.00 AM when the illfated train reached Bheistan Rly. Station. One person namely SH. Amish Piyushkar Shah aged about 23 years R/o Vanktash Appartment 7/A Ami Falia Surat, the attendant of the complainant Shy. Ramniklal Malukchand Shah Head Clerk, (Retd.), Rajkot Railway, had suffered head injuries on account of bomb explosion. The victim was seated in seat No.136 of D-1 compartment whereas the explosive device was reportedly kept under the seat "Sadiq" for his journey from Surat to Bombay. Investigation revealed that the said suspect though reserved the seat but did not travel in this train. In all there were reservations for 11 passengers including the suspect and the victim in the said D-1 bogie.
The exhibits have been seized from the scene of occurrence by the local police authorities and sent to the Forensic Laboratory/Ahmedabad for expert opinion. The seized articles included iron nails, clock pieces and the pieces of Alfa luggage etc. These articles were examined by Sh.SM Darji, Asstt. Director, FSL/Ahmedabad and opined that Amonium and nitrate redicles, (redicles of ammonium nitrate) and the hydro carbons of petrolium oil mixture of high explosive were detected in the exhibits. Sh.B.P., Upadhayay,Asstt. Director/FSL after examining the articles seized from the scene of occurrence concluded that the bomb was kept in "Alfa luggage" with electronic clock machine needle etc. were used to ensure 'delay mechanism'.
Investigation also confirmed that the bomb exploded after half-an-hour run from Surat Station. Director/FSL informed that similar explosive devices had been planted in other running trains where similar bomb explosions had taken place on 06.12.1993. The expert opinion clearly indicates that the suspect/suspects had planted the explosive device which comes within the ambit of TADA and the facts reveals so far constitute offence punishable U/Ss 3, 4 & 5 of the TADA (P) Act also.
The sequential nature of the explosions which had occurred in 5 running trains simultaneously clearly indicates that there existed a deep rooted conspiracy to strike terror in the people to cause loss to lives and damage to public properties it is, necessary that Section 3, 4 & 5 of the TADA (P) Act for further investigation in this case. Copy of the expert opinions of FSL/Ahmedabad is attached for perusal.
Submitted please.
(K.S. Nair)
DY.SUPDT.OF POLICE
CBI STF NEW DELHI
The facts revealed make out a case u/s 3 & 4 of TADA (P) Act. Inclusion of these Sections of law is approved. [1]
Sd/-
H.C.Singh
dated 13.01.1994
Supdt. of Police C.B.I. New Delhi"
7. Since the applicability of the provisions of TADA Act was also found to have been made out as regards other crimes, a fax message was sent by PW 62 H.C. Singh to SP CBI Lucknow on 14.01.1994 requesting that provisions of TADA Act be included and that A3 Habib Ahmed Khan and A4 M. Jamal Alvi be arrested. This fax message, Ext. P-247 was as under:-
"FAX MESSAGE
TO
SP CBI LUCKNOW
FROM: SP CBI STF NEW DELHI
CAMP: BOMBAY REF NO. 35/94/CBI/STF, BOMBAY
One Dr. Mohd. Jalees Ansari arrested in 1(S)/93/STF/Bombay(Bombay Bomb Blast case) has disclosed that the planning and execution of bomb blasts in Rajdhani Express Trains near Kanpur on 5/6.12.93 was done by Jamal Alvi R/o Chawal Wali Gali, Nakhas Chow, Lucknow and Dr. Habib R/o Kaharon Ka Adda, Rae Bareli. It is requested that these persons be arrested in RC 43 & 44(S)/93/CBI/LUCKNOW and further investigations carried out. CIO Sh. R. P. Kaushal Dy. SP is reaching Lucknow today evening by flight No. IC-835. The disclosures of Dr. Jalees Ansari reveal offences under Sections 3, 4 & 5 of TADA (P) Act. Hence these Sections of TADA (P) Act be included in the case diary.
Sd/-
H.C. Singh
dated 14.1.1994
SP, CBI, STF NEW DELHI
CAMP AT BOMBAY"
8. While PW 148 R.P.Kaushal was at SPE Headquarters at Delhi on 14.01.1994, he received information from PW 62 H.C. Singh who was then camping at Mumbai that he should go to Lucknow immediately. On reaching Lucknow on 15.01.1994 PW 148 R.P. Kaushal came to know that A3 Dr. Habib Ahmed Khan and A4 Jamal Alvi had been arrested on 14.01.1994 by Lucknow Branch of CBI. He also received the aforesaid fax message Ext. 247 regarding addition of Sections 3, 4 and 5 of TADA Act in both the cases. On 15.01.1994, he submitted an application Ext. P-518 under his signature seeking police remand of the arrested accused. In this application, he had included the provisions of Sections 3, 4 and 5 of TADA Act. Another application namely Ext. P-521 was submitted seeking remand for 14 days. This application had also included aforesaid provisions of TADA Act.
9. The Investigating Team conducting investigation in connection with the crime registered at Jaipur was appraised of the disclosures coming from the interrogation of A1 Dr. Jalees Ansari that one of the suspects namely A2 Ashfaque Khan lived in Dausa in Rajasthan. Immediately, search of the residence of A2 Ashfaque Khan was effected in which certain documents were seized indicating his complicity in the crime. A2 Ashfaque Khan was called for interrogation.
PW 34 Shankar Surolia, SP, CBI, SPE of Jaipur after having perused the seized documents and being satisfied about the applicability of provisions of TADA Act, issued following order Ext. P-160 on 15.1.1994 directing addition of Sections 3 and 4 of TADA Act in the matter.
"Order
RC No. 37(S)/93 of SPE/CBI/Jaipur dated 15.01.1994
I have gone through the Case Diaries, documents and statement of accused Aspak Khan which clearly indicate that the accused persons Dr. Jalees Ansari, Shameem Ansari R/o Bombay Aspak Khan R/o Dausa and others conspired with each other during the year 1992-93 to commit the terrorist and destructive activities, to the harmony amongst different Sections of people of India by using explosives substances. In persons planted bomb to kill the passengers and damage the Rajdhani Express Train Ex Bombay to New Delhi, in Coach No. C-7, which exploded at about 5.15 AM on 6.12.93 between Indragarh and Amli Stations.
The blast caused injuries to the various passengers and damages to the public property. Thus, the accused persons have committed offences punishable u/s 3 & 4 of TADA (P) 1987 in addition to Sections mentioned in the FIR. I therefore, direct Sh. R. D. Kalia, Inspector, CBI, Jaipur to proceed with the investigation accordingly.
Sd/-
Supdt. of Police SPE,
CBI, Jaipur"
The provisions of TADA Act thus stood invoked in all the crimes.
10. When A1 Dr. Jalees Ansari was arrested in connection with Bombay Blast Case, 7 firearms, 2 grenades, 20 detonators, live cartridges, plastic bag containing explosives and timer device were found during search and seizure. At the time of arrest of A2 Ashfaque Khan, visiting card of A1 Dr. Jalees Ansari as well as diary containing name of 'Abdullah' with a phone number was found. Similarly, at the time of arrest of A4 Jamal Alvi, certain arms and explosives were recovered.
11. On 20.01.1994 application Ext.D-198 was moved on behalf of A5 Afaque Khan that said Accused was in illegal detention of CBI, to which a reply was filed in the Court at Lucknow that the Accused was interrogated on 17.1.1994 and was called for further interrogation on 21.01.1994. It may be noted that a telegram was sent on 18.01.1994 to the Hon'ble President of India that said accused was in the confinement of CBI. However according to the Record, A5 Afaq Khan was arrested at 10 p.m. on 20.01.1994 by Delhi Police in connection with Case no. 46/94 of P.S. Malviya Nagar, New Delhi under Sections 3, 4 and 5 of TADA Act.
12. On 28th and 29th January, 1994, a confessional statement Ext. P 248 of A2 Ashfaque Khan came to be recorded under Section 15 of TADA Act by PW 62 H.C. Singh. The confessing accused was produced before PW 62 H.C. Singh on 28.01.1994, on which date PW 62 H.C. Singh gave him 24 hours time to think over the matter. The confession was recorded the next day. In his confessional statement A2 Ashfaque Khan disclosed how he came in contact with A1 Dr. Jaless Ansari and how he procured explosive material for him.
13. On 02.02.1994 a confessional statement of A5 Afaque Khan, Ext. 241-A under Section 15 of TADA Act was recorded by PW 61 Prabhat Singh, DCP, South Delhi. The first part of the statement was recorded by one Nepal Singh in his handwriting. It was stated in the confession that A5 Afaque Khan was present in a meeting held in the last week of September 1993 which meeting was attended by A1 Dr. Jalees Ansari, A3 Dr. Habib and A4 Dr. Jamal Alvi and others in which it was planned and decided to cause explosion of bombs in long distance prestigious trains. It was further stated by him that he had fixed the circuit and timing in bombs. On the same day, A6 Irfan Khan was produced before PW 61 Prabhat Singh and his confessional statement Ext. P-243 was recorded.
14. On 06.02.1994 as A1 Dr. Jalees Ansari desired to give confessional statement; he was produced in CBI office before PW 62 H.C. Singh, who gave him warning that such statement could be used against him and gave him 24 hours time to reflect over the matter. A1 Dr. Jalees Ansari was again produced the next day i.e. on 07.02.1994, when PW 62 H.C. Singh recorded his confession Ext. P 250.
It was stated in the confession that after completing his MBBS, he had initially joined service as Doctor in Public Health Department and later did private practice, that he had planted a bomb in Malegaon for which he was arrested and later released on bail, that during the year 1992-1993 he continued to plant bombs at various places in Mumbai and in trains which claimed some lives, that he met A2 Ashfaque Khan who supplied him detonators and gelatin sticks. He, therefore, narrated how he and other accused had planned and executed the explosions that occurred on 5th and 6th December 1993.
15. On 12.02.1994 A3 Dr. Habib Ahmed Khan was produced before PW 62 HC Singh in his office at New Delhi as he wanted to make a confessional statement. The accused was given 24 hours time to think over the matter. A3 Dr. Habib Ahmed Khan was again produced the next day and his confession Ext. P-251 under Section 15 of TADA Act was recorded.
16. On 16.02.1994 PW 103 K.M. Reddy, Deputy Commissioner of Police Hyderabad recorded confessional statements of A11 Md. Shamsuddin (Ext.P. 427-428) of A12 Md. Azeemuddin (Ext. P. 429-430) and of A13 Md. Yusuf (Ext. P 431-432). These three confessions were recorded in Crime No.336 of 1993, Abid Road Police Station, Hyderabad. In these confessions, the confessing accused stated how they were associated with A1 Dr. Jalees Ansari and how they had assisted in planting bomb at Secundrabad Railway Station in September 1993 and in A.P. Express on the morning of 06.12.1993.
17. On 17.02.1994 A4 M. Jamal Alvi was produced before PW 62 HC Singh as the accused wanted to make a confessional statement. PW 62 HC Singh gave him 24 hours time to think over. He was again produced on 18.02.1994 and PW 62 HC Singh proceeded to record his confessional statement (Ext.P 253).
18. On 28.02.1994 A1 Dr. Jalees Ansari was produced before the Designated Court, Bombay with application under Section 169 Cr. P.C. preferred by CBI seeking his discharge from Bombay Bomb Blasts Case. It was stated that after investigation the accused was not found to be connected with Bombay Bomb Blasts case. Accordingly, the Designated Court discharged A1 Dr. Jalees Ansari from Bombay Bomb Blasts case. On the same day an application namely MA 72 of 1994 was preferred by PW 150 PD Meena seeking custody of A1 Jalees Ansari which was given to him by the Designated Court. The material recovered at the time of his arrest and during search and seizure was also made over. Thereafter, on 01.03.1994 A1 Dr. Jalees Ansari was produced in TADA Court, Ajmer, Rajashthan but since the presiding officer was on leave he was produced before Additional Sessions Judge, Ajmer who gave two days remand. On 04.03.1994 A1 Dr. Jalees Ansari was produced before TADA Court which remanded him to judicial custody.
19. On 08.03.1994 A8 Mohd. Saleem Ansari was produced before PW 9 K.V. Reddy, Deputy Commissioner of Police, North Zone, Hyderabad in connection with Crime No.151 of 1993 registered under TADA Act and other offences, as the accused desired to give a confessional statement. In the confession (Ext.P-444) recorded by PW 109 K.V. Reddy, the confessing accused accepted his role in Bomb Blasts of Humayun Nagar Police Station and Abid Road Police Station and that he was also associated in planting the Bomb on 06.12.1993 in A.P. Express.
20. On the same day a confessional statement (Ext.P 445) of A 10 Mohd. Nissarudin was also recorded by PW 109 K.V. Reddy in connection with Crime No.336 of 1993, Abid Road Police Station, Hyderabad. The confessing accused in said confessional statement accepted his role in planting of Bomb in the compartment of A.P. Express on 06.12.1993 and that he was also having two other Bombs which were meant for use in K.K. Express on the same day but because of his ill health he could not use them.
21. On 26.04.1994 an order was passed clubbing all five cases as they were found to be outcome of a single conspiracy. The order dated 26.04.1994 (Ext.P 259) was to the following effect:- "ORDER Investigations in the under mentioned cases relating bomb blasts in prestigious trains on 5/6. 12.93, which were registered in concerned Branches of the CBI have revealed that these bomb blasts were outcome of a single conspiracy. Hence , for better appreciation of facts and through investigation of the cases, the investigation in these cases STF, New Delhi will be the C.I.O of these cases. The present arrangement of CIO'S from STF and Assisting IO's from the concerned branches for these cases will, however, continue.
i) RC 32(S)/93/CBI/Hyderabad.
ii) RC 43(S)/93/CBI/Ahmedabad
iii) RC 37 (S)/93/CBI/Jaipur
iv) RC 43 (S)/93/CBI/Lucknow
v) RC 44(S)/93/CBI/Lucknow
En dt. No. 8/94/STF/BB/1396 Dt. 26.4.1994 (Arun Bhagat) Addl. Director CBI(S)"
22. On 01.07.1994 a confessional statement (Ext.P 434-435) of A9 Mohd. Zaheeruddin was recorded by PW 105 Rajeev Trivedi in connection with Crime No.636 of 1996, Abid Road, P.S., Hyderabad. In this confessional statement the accused stated about his association with A1 Dr. Jalees Ansari and about his acts of planting bomb at Humayun Nagar, Abid Road, P.S. and Secundrabad Railway Reservation Complex and also about his role in planting a bomb in the unreserved compartment of A.P. Express on 06.12.1993.
23. On 26.07.1994 A7 Fazlur Rehman was produced before PW 62 H.C. Singh in the office of Superintendent of Police, CBI, Jaipur as the accused wanted to make a confessional statement. PW 62 H.C. Singh gave him 24 hours time to think over the matter. The accused was again produced on 27.07.1994 on which date his confessional statement Ext.P 255 was recorded. In his confessional statement the accused stated about his association with A1 Jalees Ansari.
24. On 28.08.1994, PW 107 K. Vijaya Rama Rao, Inspector General of Police and Director CBI accorded sanction (Ext.P 437) under Section 20 A (2) of TADA Act to prosecute accused Nos. 1 to 13 for offences punishable under TADA Act and other enactments. A Charge-sheet Ext.P 266 dated 25.08.1994 was thereafter filed in the court of Designated Court, Ajmer, Rajasthan against accused Nos.1 to 13. The charge-sheet also included sanction order dated 19.09.1994 passed by the Deputy Commissioner of Police, Mumbai under Arms Act in respect of various arms recovered from A1 Dr. Jalees Ansari and sanction order dated 22.07.1994 passed by Distt. Magistrate, Lucknow in respect of Arms and Explosives recovered from A4 M. Jamal Alvi.
25. After filing of the aforesaid charge-sheet A14 Md. Amin was apprehended. He having desired to give confessional statement, was produced before PW 62 H.C. Singh on 17.11.1994. PW 62 H.C. Singh gave him time of 24 hrs. to think over the matter. The accused was again produced on 18.11.1994 on which date the confessional statement of the accused Ext.P 257 came to be recorded. In his confessional statement the accused disclosed his association with A1 Dr. Jalees Ansari and how the said accused was taught by him to make bomb devices.
26. A supplementary charge-sheet (Ext P-267) dated 18.04.1995 was thereafter filed against A14 Mohd. Amin in the Designated Court. This was preceded by order of sanction (Ext. P-438) under Section 20 A (2) of TADA Act by PW 107 V. Rana Rao.
27. On 21.05.1996, Metropolitan Sessions Judge, Hyderabad, Designated Court under TADA Act ordered discharge of accused under the provisions of TADA Act in four cases namely Sessions Case Nos.438 of 1994, 584 of 1994, 13 of 1995 and 14 of 1995. Sessions Case No.438 of 1994 arose from FIR No.336 of 1993 of Police Station Abid Road in which confessions of present accused Nos.9, 10, 11, 12 and 13 were recorded.
Apart from present accused Nos.9, 10, 11, 12 and 13, A1 Dr. Jalees Ansari, A8 Saleem Ansari and others were also accused in those Sessions Cases. It was observed by the Designated Court that none of the FIRs in those four cases was registered under any of the provisions of TADA Act. It found that there was no prior approval in writing to invoke the provisions of TADA Act and as such the entire case had to be transferred under Section 18 of TADA Act to the competent Court for disposal. It further found that sanctions to prosecute under Section 20 A (2) of TADA Act were also invalid.
28. This decision of the Designated Court dated 21.05.1996 was challenged by State of Andhra Pradesh by preferring Criminal Appeal Nos. 2010-2013 of 1996 in this Court. By its order dated 17.04.2001[2], this Court was prima facie of the opinion that the exercise of power under Section 20 A (2) of TADA Act by the then Commissioner of Police was in a very casual manner and as such this Court deemed it appropriate to issue notice to the concerned Commissioner to show cause why adverse remarks against him be not made in the judgment by which the appeal was to be disposed of.
The record indicates that thereafter on 17.07.2001, at the request of State of Andhra Pradesh, the aforesaid appeals were allowed to be withdrawn and consequently notice issued to the then Commissioner of Police stood discharged. With the withdrawal of appeals, the order passed by the Designated Court holding the invocation of TADA Act under Section 20 A (1) in respect of four crimes including one under FIR No.336 of 93 to be invalid, attained finality.
29. A15 Aizaz Akbar who was apprehended sometime in 1997, desired to make confessional statement. He was therefore produced on 01.06.1997 before PW1 O.P. Chhatwal who gave him 24 hours time to think over the matter. The accused was thereafter produced on 02.06.1997 before PW1 O.P.Chhatwal who recorded his confession (Ext. P-1). In his confession, the accused stated that he used to work as Computer Operator with M/s Tawakkal Travels, Mumbai, that he was associated with A1 Dr. Jalees Ansari and that he had gone to Hyderabad alongwith A1 Dr. Jalees Ansari and had planted bomb at Humayun Nagar, Police Station and at Habib Road, Police Station in August, 1993. He further stated how he had planted bomb in Bangalore-Kurla Express.
30. On 26.07.1997 second supplementary charge sheet (Ext.D-53) was filed against A15 Aizaz Akbar and six other absconding accused. This was preceded by order of sanction Ext.P-471 dated 25.07.1997 under Section 20A (2) of TADA Act accorded by PW 130 R.C. Sharma, Inspector General of Police and Director CBI, New Delhi.
31. Thereafter A16 Abre Rehmat Ansari was arrested. Since he desired to make a confessional statement, he was produced before PW 1 O.P. Chhatwal on 01.01.1998 on which date he was given 24 hours time to think over the matter. The accused was again produced on 02.01.1998 when his confessional statement Ext. P-4 was recorded under Section 15 of TADA Act. In his confession, A16 stated his full name to be Abre Rehmat Ansari and that he was also known by name 'Kari'. It was stated that he had received training in Pakistan where they were instigated to indulge in subversive activities, that he participated in four firing incidents at CRPF/BSF bunkers, that in Aug-Sep 1993 he was introduced to A4 M. Jamal Alvi, that he had supplied him arms and explosives in Oct-Nov 1993 and that he had also supplied 5kg of explosives, 4 detonators and 4 timers to A4 M. Jamal Alvi.
32. A third supplementary chargesheet Ext.P-513 was filed on 23.03.1998 against A16 Abrey Rehmat Ansari. Sanction under Section 20A(2) dated 27.02.1998 (Ext.P 469) for such prosecution was accorded by PW 128 D.R. Karthikeyan, Inspector General of Police and Director CBI, New Delhi.
33. On 13.10.1999 the Designated Court passed Order framing charges against Accused Nos.1 to 16. Accordingly they were charged for having committed offences punishable under TADA Act and other enactments. For facility, paragraphs 86 to 92 of the judgment of the Designated Court which set out charges against the Accused, are quoted as under:
"86. After hearing both the parties, accused (A-1) Dr. Mohd. Jalees Ansari, (A-11) Mohd.Shamsuddin @ Painter Baba, (A-14) Mohd. Amin were charged u/s 120-B IPC, Sections 3(3), 5 & 6 of TADA Act, Sections 4(a) & 4(b) of Explosive Substances Act and Section 9(B) of Explosive Act. These accused have also been charged u/s 3(2), 5 and 6 of TADA Act, Section 3, 4(a) and 4(b) of Explosive Substances Act. Section 9(B) of Explosive Act, Section 4 of Prevention of Damages to Public Property Act, Sections 150 & 151 of Indian Railways Act and Sections 302, 307, 326, 324 & 436 IPC with each offence.
87. Accused (A-2) Ashfaque Khan, (3) Dr. Habib Ahmed Khan, (A- 5) Mohd. Afaq Khan, (A-9) Mohd. Zahiruddin Ahmed @ Ahmed, (A- 10) Mohd.Nissaruddin @ Mujju, (A-16) Abre Rehmat Ansari @ Kari, were charged u/s 120-B IPC, Section 3(3) & 6 of TADA Act, Sections 4(a) and 4(b) of Explosive Substances Act, Section 9(B) of Explosive Act. These accused have also been charged u/s 3(2), 5 & 6 of TADA Act, Section 3, 4(a) and 4(b) of Explosive Substances Act, Section 9(B) of Explosives Act. Section 4 of Prevention of Damages to Public Property Act, Sections 150 & 151 of Indian Railways Act, Sections 302, 307, 324, 326 and 436 r/w Section 120-B IPC with each offence.
88. Accused (A-4) Mohd. Jamal Alvi was charged u/s 120-B IPC, Sections 3(3), and 6 of TADA Act, Sections 4(a) and 4(b) of Explosive Substances Act, Section 9(b) of Explosives Act, Section 25(1-B) Arms Act. This accused was also charged u/s 3(2), 5 and 6 of TADA Act, Sections 3, 4(a) and 4(b) of Explosive Substances Act, Section 9(B) Explosives Act, Section 4 of Prevention of Damages to Public Property Act, Sections 150 & 151 of Indian Railways Act, Sections 302, 307, 324, 326 and 436 IPC r/w Section 120-B of IPC with each offence.
89. Accused (A-6) Irfan Ahmed, (A-15) Mohd. Aizaz Akbar were charged u/s 120-B, 307 IPC , Section 3(2), 3(3), 6 of TADA Act, Section 4(a), 4(b) Explosive Substances Act, Section 9(B) Explosives Act, Section 150 of Indian Railways Act. These accused have also been charged u/s 3(2), 5 & 6 of TADA Act, Sections 3, 4(a) & 4(b) of Explosive Substances Act, Section 9(b) of Explosives Act, Section 4 of Prevention of Damages to Public Property Act, Section 150 & 151 of Indian Railways Act, Section 302, 307, 326, 324 and 436 IPC r/w Section 120-B IPC with each offence.
90. Accused (A-7) Fazlur Rehman Sufi @ Shamin was charged u/s 120-B, 307, 324, 326 and 436 IPC , Sections 3(2), 3(3), 5 & 6 of TADA Act, Sections 3, 4(a) and 4(b) of Explosive Substances Act, Section 9(B) of Explosives Act, Section 4 of Prevention of Damages to Public Property Act. Sections 150 & 151 of Indian Railways Act. He had also charged u/s 3(2), 5 & 6 of TADA Act, Sections 3, 4(a) and 4(b) of Explosive Substances Act, Section 9(B) of Explosives Act, Section 4 of Prevention of Damages to Public Property Act, Sections 150 & 151 of Indian Railways Act, Sections 302, 307, 324, 326 & 436 IPC r/w Section 120-B of IPC with each offence.
91. Accused (A-8) Mohd. Saleem Ansari was charged u/s 120-B, Section 3(3) of TADA Act. He was also charged u/s 3(2), 5 & 6 of TADA Act, Sections 3, 4(a) and 4(b) of Explosive Substances Act, Section 9(B) of Explosives Act, Section 4 of Prevention of Damages to Public Property Act. Sections 150 & 151 of Indian Railways Act. Sections 302, 307, 324, 326 and 436 IPC r/w Section 120-B of IPC with each offence.
92. Accused(A-12) Mohd. Azeemuddin @ Azeem and (A-13) Mohd. Yusuf were charged u/s 120-B, 307, 324, 326 & 436 IPC , Sections 3(2), 3(3) and 6 of TADA Act. Section 3, 4(a), 4(b) Explosive Substances Act, Section 9(B) Explosive Act, Section 4 Prevention of Damages to Public Property Act. Sections 150 & 151 of Indian Railways Act. These accused were also charged u/s 3(2), 5 and 6 of TADA Act, Sections 3, 4(a), 4(b) Explosive Substances Act. Section 9(B) Explosives Act, Section 4 Prevention of Damages to Public Property Act, Section 150 & 151 Indian Railways Act, Sections 302, 307, 324, 326 & 436 IPC r/w Section 120-B IPC with each offence."
34. In support of its case, the Prosecution examined 150 witnesses, exhibited documents Ext.P-1 to Ext.P-535, produced and marked 23 articles and relied upon confessions of Accused A1 to A16. A6 having absconded, Accused A1 to A5 and A7 to A16 were examined under Section 313, Cr.P.C. All the accused denied the case of the Prosecution and submitted that their confessions were not voluntary.
The accused produced twenty witnesses namely DW-1 Mohammed Jalees Ansari (A-1), DW- 2 Mohammed Yusuf (A-13), DW-3 Mohd. Azeemuddin (A-12), DW-4 Mohd. Nisaruddin Ahmed (A-10), DW-5, Mohd. Zaheeruddin Ahmed (A-9), DW-6 Mohiuddin Jamal Aliv (A-4), DW-7 Abre Rehamt Ansari, (A-16), DW-8 Mohammed Anis Ansari, DW-9 Javed Akhtar Ansari, DW-10 Jekahullah Ansari, DW-11 Mohamed Amin (A-14), DW-12 Rabani Aliv, DW-13 Sarafuddin, DW-14 Mohd. Saleem Ansari (A-8), DW-15 Mohd. Aizaz Akbar (A-15), DW-15 Anwar Jamal Alvi, DW-17 Asharfi Fazlur Rehmman (A-7), DW- 18 Mohammed Afaq (A-5), DW-19 Mohd. Shamsuddin (A-11), DW-20 Yusuf Khan. The accused exhibited 204 documents in defence.
35. After considering the entire material on record and hearing rival submissions, the Designated Court considered the matter in the light of following points:
"(i) Whether prior approval to apply the provisions of TADA Act as required under Section 20-A (1) of the TADA Act and sanction to take cognizance of the offence as required under Section 20- A(2) of the TADA Act is valid?
(ii) Whether accused A-1 Dr. Mohd. Jalees Ansari, A-2 Ashfaque Khan, A-3 Dr. Habib Ahmed Khan, A-4 M. Jamal Alvi, A-5 Mohd. Afaq Khan, A-6 Irfan Ahmed, A-7 Fazlur Rehman Sufi @ Asharfi E Shamin, A-8 Mohd. Saleem Ansari, A-9 Mohd. Zaheeruddin Ahmed @ Ahmed, A-10 Mohd. Nissaruddin @ Mujju, A-11 Mohd. Shamsuddin @ Painter Baba, A-12 Mohd. Azeemuddin @ Azeem, A-13 Mohd. Yusuf, A- 14 Mohd. Amin, A-15 Mohd. Aizaz Akbar, A-16 Abare Rehmat Ansari @ Kari along with the absconding accused Sayed Abdul Karim, Mohd. Tuffail, Mohd. Hamir -Ul Uddin @ Hamid, Mohd. Saleem, Nisar Ahmed Ansari @ Tahir Ahmed, during the year 1993-94 on various dates entered into criminal conspiracy at Bombay, Lucknow, Kanpur, Dausa, Baroda, Surat, Kota Hyderabad, Gulbarga and other places to terrorize the Government of India, to strike terror in the people, to adversely affect the harmony amongst Hindus and Muslims by keeping bombs, explosives substances on 5.12.1993 and 6.12.1993 in important trains of India viz. Rajdhani Express trains from Mumbai to New Delhi, New Delhi to Howrah, Howrah to New Delhi, Flying Queen Express from Surat to Bombay, Andhra Pradesh Express from Hyderabad to New Delhi, train from Bangalore to Kurla, to commit terrorist acts to cause train bomb blasts and thereby to cause death, grievous injuries to person travelling in the said trains, to cause damage, destruction to railway, public property and also to send, procure, manufacture explosives substances and also to attack 'Samna Press' of Shiv Sena on 15.1.1994 and to commit terrorist act at Delhi on 26.1.1994?
(iii) Whether accused A-1 to A-16 along with absconding accused during the year 1993-94, at above mentioned places in pursuance of the criminal conspiracy intentionally made available bombs, explosive substances to co-accused which were to be used for terrorist acts for causing bomb blasts in the above mentioned trains?
(iv) Whether in pursuance of the criminal conspiracy accused A-1 to A-16 procured explosive substances and explosives and kept the explosive substances unauthorisedly in their possession in a notified area for which they had no licence and manufactured bombs for unlawful objects and were kept unlawfully and maliciously to endanger life and property and for causing bomb blasts in the above mentioned trains for which the accused A-1 to A-16 are liable as members of the said criminal conspiracy?
vi) Whether in pursuance of the said conspiracy the accused on 5- 6/12/1993 kept bomb devices at Kanpur, Baroda railway stations in Rajdhani Express Trains from Howrah to New Delhi, from New Delhi to Howrah, from Bombay to New Delhi, respectively which exploded causing injuries to six passengers. Further, bomb device was kept at Hyderabad Railway Station in Andhra Pradesh Express from Hyderabad to New Delhi, which exploded resulting in death of two passengers Abdul Majid and Smt. Jeevan Jyoti and injuries to fourteen passengers, bomb device was also kept at Surat Railway station in Flying Queen Express from Surat to Bombay which exploded causing injuries to one passenger and further bomb device was kept at Pune Railway Station in Bangalore - Kurla Express train for causing explosion. The bomb explosions in the above trains caused damage to railway-public property and for the above acts accused A-1 to A-16 are liable as members of the said criminal conspiracy?"
36. The Designated Court found prior approval under Section 20A(1) of TADA Act in the present matter, namely Ext.P-45-, P-246, P-247 and P-160 and Orders of Sanction under Section 20A(2) namely Ext.P-437, P- 438, P-469 and P-471 to be valid and in accordance with law. In view of the confessional statement and other prosecution evidence, it found that it was proved beyond reasonable doubt that Accused Nos.1 to 5 and Accused Nos.7 to 16 had conspired and caused terrorist acts by causing bomb blasts in six trains on 5th & 6th December, 1993 and found A1 to A5 and A7 to A14 and A16 guilty of the offences punishable under Section 3(3) of TADA Act while A15 was found guilty of the offence punishable under Section 3(3) of TADA Act read with Section 120-B IPC.
37. The Designated Court by its judgment and final order dated 28.02.2004 convicted and sentenced the accused for various offences as detailed in following paragraphs 537 to 543 of its judgment:
"537: Accused A-1 Dr. Mohammed Jalees Ansari, A-9 Mohd. Zaheeruddin Ahmed @ Ahmed, A-11 Mohammed Shamsuddin @ Painter Baba, A-12 Mohammed Azeemuddin @ Azeem, A-13 Mohammed Yusuf are guilty of the offences punishable u/s 120-B I.P.C., Section 3(2) (i), 3(2) (ii), 3(3), 5, 6(1) TADA Act, 1987 Sections 302, 307, 326, 324, 436 I.P.C., Sections 3,4 Explosive Substances Act, Sec. 9-B Explosives Act, Sections 150, 151 Railways Act, Section 4 prevention of Damage to Public Property Act.
Under Section 120-B I.P.C. Sec. 3(2) (I) TADA Act, Sec. 3(3) TADA Act, Sec.302 I.P.C., each of the above accused are sentenced to life imprisonment and a fine of Rs.5000/- on each count. In default of payment of fine each of them shall further undergo rigorous imprisonment for one year.
Under Section 150 Railways Act, each of the above accused are sentenced to life imprisonment.
Under Section 3(2)(ii), 5, 6(1) TADA Act, Sec. 307 I.P.C. Sections 3 & 4, Explosive Substances Act, each of the above accused are sentenced to ten years rigorous imprisonment and a fine of Rs.2500/- on each count. In default of payment of fine each of them shall further undergo rigorous imprisonment for six months.
Under Section 9-B Explosives Act, each of the accused are sentenced to two years rigorous imprisonment and a fine of Rs.2500/-.
In default of payment of payment of fine each of them shall further undergo rigorous imprisonment for six months.
Since, each of the above accused has been sentenced u/s 307 I.P.C., Section 150 Railways Act, no separate 151 Railways Act, Sec. 4 Prevention of Damage to Public Property Act, is awarded.
538. Accused A-2 Ashfaque Khan is guilty of the offences punishable u/s 120-B I.P.C., Sec. 3(2) (I) TADA Act r/w Sec.120- B I.P.C., Sec. 3(2) (ii) TADA Act r/w Sec. 120-B I.P.C., Sections 3(3), 5,6(1) TADA Act, Sec.302 r/w Sec.120-B I.P.C., Sec.307 r/w 120-B I.P.C., Sec.326 r/w 120-B I.P.C., Sec. 324 r/w Sec.120-B, Sec.436 r/w Sec. 120-B I.P.C., Sec.3 Explosive Substances Act r/w Sec.120-B I.P.C., Sec.4 Explosive Substances Act, Sec.9-B Explosives Act, Sec.150 Railways Act r/w Sec.120-B I.P.C., Sec.151 Railways Act r/w Sec.120-B I.P.C., Sec.4 Prevention of Damage to Public Property Act r/w Sec.120-B I.P.C.
a) Under Section 120-B I.P.C., Sec. 3(2) (i) TADA Act r/w Sec. 120-B I.P.C., Sec. 3 (3) TADA Act, Sec.302, r/w Sec.120-B I.P.C. A-2 is sentenced to life imprisonment and fine of Rs.5,000/- on each count. In default of payment of fine A-2 shall further undergo rigorous imprisonment for one year.
b) Under Section 150 Railways Act r/w Sec.120-B I.P.C. A-2 is sentenced to life imprisonment.
c) Under Section 3(2) (ii) TADA Act r/w Section120-B I.P.C., Section 5,6(1) TADA Act, Sec.307 r/w Sec.120-B I.P.C., Sec.3 Explosive Substances Act, r/w Sec.120-B I.P.C., Section4 Explosive Substances Act, A-2 is sentenced to ten years rigorous imprisonment and a fine of Rs.2500/- on each count. In default of payment of fine A-2 shall further undergo rigorous imprisonment for six months.
d) Under Section 9-B Explosive Act A-2 is sentenced to two years rigorous imprisonment and a fine of Rs.2500/- in default of payment of fine A-2 shall further undergo rigorous imprisonment for six months.
e) Since, A-2 has been sentenced under Section 307 r/w Sec.120-B I.P.C., Section 150 Railways Act r/w Sec.120-B I.P.C., no separate sentence u/ss 326, 324, 436 I.P.C., Sec.151 Railways Act, Sec.4 Prevention of Damage of Public Property Act, all r/w Sec.120-B I.P.C. is awarded.
539. Accused A-3 Dr. Habib Ahmed Khan, A-5 Mohammed Afaq Khan, A-10 Mohammed Nissaruddin @ Mujju, A-16 Aore Rehmat Ansari @ Kari, are guilty of the offences punishable u/s 120-B I.P.C., Sec. 3(2) (1) TADA Act r/w Sec. 120-B I.P.C., Sec. 3(2) (ii) TADA Act r/w Sec.120-B I.P.C., Sec.3(3) TADA Act, Sec.5 TADA Act r/w Sec.120-B I.P.C., Sec.6(1) TADA Act r/w Sec.120-B I.P.C., Sec.302 r/w Sec.120-B I.P.C., Sec. 307 r/w Sec.120-B I.P.C., Sec.326 r/w Sec.120-B I.P.C., Sec.324 r/w Sec.120-B I.P.C., Sec.436 r/w Sec.120-B I.P.C., Sec.3 Explosive Substances Act r/w Sec.120-B I.P.C., Sec.4 Explosive Substances Act, Sec.9-B Explosives Act, Sec.150 Railways Act r/w Sec.120-B I.P.C., Sec.151 Railways Act r/w Sec.120-B I.P.C., Sec.4 Prevention of Damage of Public Property Act r/w Sec.120-B I.P.C.:
a) Under Section 120-B I.P.C., Sec. 3(2) (i) TADA Act R/w Sec.120-B I.P.C. Sec. 3(3) TADA Act, Sec. 302 r/w Sec.120-B I.P.C. Sec.3(3) TADA Act, Sec.302 r/w Sec.120-B I.P.C. each of the above accused are sentenced to life imprisonment and a fine of Rs.5000/- on each count. In default of payment of fine each of them shall further undergo rigorous imprisonment for one year.
b) Under Section 150 Railways Act r/w Sec.120-B I.P.C. each of the above accused are sentenced to life imprisonment.
c) Under Section 3(2) (i) TADA Act r/w Sec.120-B I.P.C., Sec.5 TADA Act r/w Sec.120-B I.P.C., Sec.6(1) TADA Act, r/w Sec.120-B I.P.C., Sec.307 I.P.C. r/w Sec.120-B I.P.C., Sec.3 Explosive Substances Act, r/w Sec.120-B I.P.C., Sec.4 Explosive Substances Act, each of the above accused are sentenced to ten years rigorous imprisonment and a fine of Rs.2500/- on each count. In default of payment of fine each of them shall further undergo rigorous imprisonment for six months.
d) Under Section 9-B Explosives Act, each of the accused are sentenced to two years rigorous imprisonment and a fine of Rs.2500/-. In default of payment of fine each of them shall further undergo rigorous imprisonment for six months.
e) Since, each of the above accused have been sentenced u/s 307 r/w Sec.120-B I.P.C., Sec.150 Railways Act r/w Sec.120-B I.P.C., no separate sentence u/s 326, 324, 436 I.P.C., Section 151 Railways Act, all r/w Sec.120-B I.P.C. is awarded.
540. Accused A-4 N. Jamal Alvi is guilty of the offences punishable u/s 120-B I.P.C., Sec. 3(2) (i) TADA Act r/w Sec.120- B I.P.C., Sec.3(2) (ii), 3(3) TADA Act, Sec.5 TADA Act r/w Sec.120-B I.P.C., Sec.6(1) TADA Act r/w Sec.120-B I.P.C., Sec.302 r/w Sec.120-B I.P.C., Sections 307, 326, 324, 436 I.P.C., Sections 3,4 Explosive Substances Act, Sec.9-B Explosive Act, Sections 150, 151 Railways Act, Sec.4 Prevention of Damage to Public Property Act, Sec.25(1-B) (a) Arms Act.
a) Under Section 120-B I.P.C. Sec.3(2) (i) TADA Act r/w Sec.120-B I.P.C., Sec. 3(3) TADA Act, Sec.302 r/w Sec.120-B I.P.C., A-4 is sentenced to life imprisonment and fine of Rs.5000/- on each count. In default of payment of fine A-4 shall further undergo rigorous imprisonment for one year.
b) Under Section 150 Railways Act A-4 is sentenced to life imprisonment.
c) Under Section 3(2) (ii) TADA Act, Sec.5 TADA Act r/w Sec.120-B I.P.C., Sec.6(1) TADA Act r/w Sec.120-B I.P.C., Sec.307 I.P.C., Sec.3,4 Explosive Substances Act, A-4 is sentenced to ten years rigorous imprisonment and a fine of Rs.2500/- on each count. In default of payment of fine A-4 shall further undergo rigorous imprisonment for six months. d) Under Section 9-B Explosives Act, A-4 is sentenced to two years rigorous imprisonment and a fine of Rs.2500/-. In default of payment of fine A-4 shall further undergo rigorous imprisonment for six months.
e) Since A-4 has been sentenced under Section 307 I.P.C., Sec.150 Railways Act, no separate sentence u/Ss 326, 324, 436 I.P.C., Sec.151 Railways Act, Sec.4 Prevention of Damage of Public Property Act, is awarded.
f) Under Section 25 (1-B) (a) Arms Act, A-4 is sentenced to three years rigorous imprisonment and a fine of Rs.2500/-. In default of payment of fine A-4 shall further undergo rigorous imprisonment for six months.
541. Accused A-7 Fazlur Rehman Sufi @ Shamim, A-14 Mohammed Amin are guilty of the offences punishable u/s 120-B I.P.C., Sec.3(2) (i) TADA Act r/w Sec.120-B I.P.C. Sec.3(2) (ii), 3(3), 5,6 (1) TADA Act, Sec.302 r/w 120-B I.P.C., Sections 307, 326, 324, 436 I.P.C. Sections 3,4 Explosive Substances Act, Sec.9-B Explosive Act, Sec.9-B Explosive Act, Sections 150, 151 Railways Act, Sec.4 Prevention of Damage of Public Property Act.
a) Under Section 120-B I.P.C., Sec.3(2) (i) TADA Act r/w Sec.120-B I.P.C., Sec.3(3) TADA Act, Sec.302 I.P.C. r/w Sec.120- B I.P.C. each of the above accused are sentenced to life imprisonment and a fine of Rs.5000/- on each count. In default of payment of fine each of them shall further undergo rigorous imprisonment for one year.
b) Under Section 150 Railways Act, each of the above accused are sentenced to life imprisonment.
c) Under Section 3(2) (ii) TADA Act, Sec.5,6 (1) TADA Act Sec.307 I.P.C., Sec.3,4 Explosives Substances Act, each of the above accused are sentenced to ten years rigorous imprisonment and a fine of Rs.2500/- on each count. In default of payment of fine each of them shall further undergo rigorous imprisonment for six months.
d) Under Section 9-B Explosives Act, each of the accused are sentenced to two years rigorous imprisonment and a fine of Rs.2500/-. In default of payment of fine each of them shall further undergo rigorous imprisonment for six months.
e) Since, each of the above accused have been sentenced u/s 307, Sec.150 Railways Act no separate sentence u/s 326, 324, 436 I.P.C., Section 151 Railways Act, Sec.4 Prevention of Damage to Public Property act is awarded.
542. Accused A-8 Mohammed Saleem Ansari is guilty of the offences publishable u/s 120-B I.P.C., Sec.3(2) (1) TADA Act r/w Sec.120-B I.P.C., Sec.3(2) (ii) TADA Act r/w Sec.120-B I.P.C., Sec.3(3) TADA Act, Sec.5 TADA Act r/w Sec.120-B I.P.C., Sec.6 (1) TADA Act r/w Sec.120-B I.P.C., Sec.302 r/w Sec.120-B I.P.C., Sec.307 r/w Sec.120-B I.P.C., Sec.326 r/w Sec.120-B I.P.C., Sec.324 r/w Sec.120-B I.P.C., Sec.436 r/w Sec.120-B I.P.C., Sec.3 Explosive Substances Act r/w Sec.120-B I.P.C., Sec.4 Explosive Substances Act, r/w Sec.120-B I.P.C., Sec.9-B Explosive Act r/w Sec.120-B I.P.C., Sec.150 Railways Act r/w Sec.120-B I.P.C., Sec.151 Railways Act r/w Sec.120-B I.P.C., Sec. Prevention of Damage to Public Property Act r/w Sec.120-B I.P.C.
a) Under Section 120-B I.P.C., Sec. 3(2) (i) TADA Act r/w Sec.120-B I.P.C., Sec.3(3) TADA Act, Sec.302 r/w Sec.120-B I.P.C, Under Section 120-B I.P.C., Sec.3(2) (i) TADA Act r/w Sec.120-B I.P.C., Sec.3(3) TADA Act, Sec.302 r/w Sec.120-B I.P.C., A-4 is sentenced to life imprisonment and fine of Rs.5000/- on each count. In default of payment of fine A-4 shall further undergo rigorous imprisonment for one year.
b) Under Section 150 Railways Act A-4 is sentenced to life imprisonment, A-8 is sentenced to life imprisonment and fine of Rs.5000/- on each count. In default of payment of fine A-8 shall further undergo rigorous imprisonment for one year.
c) Under Section 150 Railways Act r/w Sec.120-B I.P.C. A-8 is sentenced to life imprisonment.
d) Under Section 3(2) (ii) TADA Act r/w Sec.120-B I.P.C., Sec.5 TADA Act r/w Sec.120-B I.P.C., Sec.6(1) TADA Act, r/w Sec.120-B I.P.C., Sec.307 I.P.C. r/w Sec.120-B I.P.C., Sec. 3 Explosive Substances Act, r/w Sec.120-B I.P.C., Sec.4 Explosive Substances Act, A-8 is sentenced to ten years rigorous imprisonment and a fine of Rs.2500/- on each count. In default of payment of fine A-8 shall further undergo rigorous imprisonment for six months.
e) Under Section 9-B Explosive Act r/w Sec.120-B I.P.C, A-8 is sentenced to two years rigorous imprisonment and a fine of Rs.2500/-. In default of payment of fine A-8 shall further undergo rigorous imprisonment for six months.
f) Since A-8 has been sentenced under Section 307 r/w Sec.120- B I.P.C., Sec.150 Railways Act r/w Sec.120-B I.P.C., no separate sentence u/Ss 326, 324, 436 I.P.C. Sec.151 Railways Act, Sec.4 Prevention of Damage to Public Property Act, all r/w Sec.120-B I.P.C. is awarded.
543. Accused A-15 Mohammed Aizaz akbar is guilty of the offences punishable u/s Sec.120-B I.P.C., Sec.3(2) (I) TADA Act r/w Sec.120-B I.P.C., Sec.3(2) (ii) TADA r/w Sec.120-B I.P.C, Sec.3(3) TADA Act r/w Sec.120-B I.P.C., Sec.5 TADA Act r/w Sec.120-B I.P.C., Sec.6(1) TADA Act r/w Sec.120-B I.P.C., Sec.302 r/w Sec.120-B I.P.C., Sec.307, Sec. 326 r/w Sec.120-B I.P.C., Sec.324 r/w Sec.120-B I.P.C., Sec.436 r/w Sec.120-B I.P.C., Sec.3 Explosive Substances Act r/w Sec.120-B I.P.C., Sec.4 Explosive Substances Act, Sec.9-B Explosives Act Sec. 150 Railways Act r/w Sec.120-B I.P.C., Sec.151 Railways Act r/w Sec.120-B I.P.C., Sec.4 Prevention of Damage to Public Property Act r/w Sec.120-B I.P.C..
a) Under Section 120-B I.P.C., Sec.3(2) (i) TADA Act r/w Sec.120-B I.P.C., Sec.3(3) TADA Act, r/w Sec.120-B I.P.C., Sec.302, r/w Sec.120-B I.P.C. A-15 is sentenced to life imprisonment and fine of Rs.5000/- on each count. In default of payment of fine A-15 shall further undergo rigorous imprisonment for one year.
b) Under Section 150 Railways Act r/w Sec.120-B I.P.C. A-15 is sentenced to life imprisonment. c) Under Section 3(2) (ii) TADA Act r/w Sec.120-B I.P.C., Section 5 TADA Act, r/w Sec.120-B I.P.C, 6(1) TADA Act, r/w Sec.120-B I.P.C., Sec.307, Sec.3 Explosive Substances Act, r/w Sec.120-B I.P.C., Section 4 Explosive Substances Act, A-15 is sentenced to ten years rigorous imprisonment and a fine of Rs.2500/- on each count. In default of payment of fine A-15 shall further undergo rigorous imprisonment for six months.
d) Under Section 9-B Explosives Act A-15 is sentenced to two years rigorous imprisonment and a fine of Rs.2500/-. In default of payment of fine A-15 shall further undergo rigorous imprisonment for six months.
e) Since, A-15 has been sentenced under Section 307 I.P.C., Section 150 Railways Act r/w Sec.120-B I.P.C., no separate sentence u/ss 326, 324, 436, I.P.C. Sec.151 Railways Act, Sec.4 Prevention of Damage to Public Property Act, all r/w Sec.120-B I.P.C. is awarded."
38. Cases of accused Nos. 6 and 12 having been separated, this appeal on behalf of remaining 14 accused takes exception to the aforesaid judgment of conviction and sentence passed by the Designated Court. Mr. Ratnakar Dash, Learned Senior Advocate, appeared for A1 Dr. Jalees Ansari, A4 Jamal Alvi, A5 Afaque Khan, A7 Fazlur-Rehman, A8 Saleem Ansari, A14 Mohd Amin and A16 Abre Rehmat Ansari. Mr. R.S. Sodhi, Learned Senior Advocate appeared on behalf of A2 Ashfaque Khan. Mr. Sanjay Hegde, Learned Senior Advocate appeared for A3 Habib Ahmed Khan. Ms. Nitya Ramkrishnan, learned Advocate appeared on behalf of A9 Md. Zaheeruddin, A10 Md. Nisaruddin, A11 Md. Shamsuddin, A13 Md. Yusuf and A15 Aizaz Akbar. Mr. P.K. Dey, Learned Advocate for CBI. We are grateful for the assistance rendered by learned counsel.
39. The submissions advanced on behalf of the accused can be broadly put under following five points:-
A. There was no valid invocation of provisions of TADA Act as required under Section 20 A (1) of TADA Act. The documents/orders of invocation as alleged in the present matter were not contemporaneous but fabricated later in point of time.
B. The prosecution was seeking to rely upon confessions of the accused recorded in other crime(s). Though permissible in law, such reliance was not in conformity with the principles laid down by this Court.
C. Confessions recorded in the present matter were not voluntary. They were extracted while the accused were in police custody and in most cases the confessions were recorded by PW 62 H.C. Singh while other competent Officers were available.
D. In any case, such confessions could not be relied upon as substantive evidence to bring home the charge against the confessing accused and for that matter against the co-accused. E. There was no evidence independent or otherwise which could support the case of prosecution. Further, there was no material on record even to lend support or corroboration to the confessions relied upon by the prosecution.
40. Since the validity of confessions recorded in the present case is quite crucial in the present case, the following chart would facilitate the assessment of issues involved in the matter. The chart indicates that confessions of A1, A5, A8, A9, A10 and A13 were recorded in crimes other than the present ones. We have not dealt with confessions of A6 and A12.
Accused No
Name of accused
Confession recorded in Case No.
Exhibit No. & Date of recording
Recorded by
A-2
Ashfaque Khan
RC 37(S)/93, CBI, Jaipur
Ex P-248 28 & 29/01/1994
By PW 62 H.C. Singh
A-5
Afaque Khan
Case No 46/94, P.S. Malviya Nagar, New Delhi
Ex P-241A 2/2/1994
By PW 61 Prabhat Singh
A-1
Mohd Jalees Ansari
RC 1(S)/93, Bombay Bomb blast case
Ex P-250 6 & 7/2/94
By PW 62 H.C. Singh
A-3
Habib Ahmed Khan
RC 43-44(S)/93 CBI, Lucknow
Ex P-251 12 & 13/02/1994
By PW 62 H.C. Singh
A-11
Md. Shamsuddin
Crime No. 336/93, Abid Road, Police Station, Hyderabad
Ex P-427-28 16/02/1994
By PW 103 K.M. Reddy
A-13
Md. Yusuf
Crime No. 336/93, Abid Road, Police Station, Hyderabad
Ex P-431-32 16/2/1994
By PW 103 K.M. Reddy
A-4
M. Jamal Alvi
RC 43-44(S)/93 CBI, Lucknow
Ex P-253 17 & 18/02/1994
By PW 62 H.C. Singh
A-8
Saleem Ansari
Case Crime No. 151/93, CCS, Hyderabad
Ex P-444 8/3/1994
By PW 109 K.V. Reddy
A-10
Md. Nisaruddin
Crime No. 336/93, Abid Road Police Station Hyderabad
Ex P-445 8/3/1994
By PW 109 K.V. Reddy
A-9
Md. Zaheeruddin
Crime No 336/93, Abid Road, Police Station Hyderabad
Ex P-434-35 1/7/1994
By PW 105 Rajeev Trivedi
A-7
Fazlur-Rehman
RC 37(S)/93, CBI, Jaipur
Ex P-255 26 & 27/071994
By PW 62 H.C. Singh
A-14
Mohd Amin
RC 37(S)/93, CBI, Jaipur
Ex P-257 17 & 18/11/1994
By PW 62 H.C. Singh
A-15
Aizaz Akbar
RC 37(S)/93, CBI, Jaipur
Ex P-1 1 & 2/6/97
By PW 1 O.P. Chhatwal
A-16
Abre Rehmat Ansari
RC 37(S)/93, CBI, Jaipur
Ex P-4 1 & 2/01/1998
By PW 1 O.P. Chhatwal
41. Section 20A was brought on the Statute by way of amendment vide Act 43 of 1993. Section 20A is as under :-
"Section 20-A. Cognizance of offence. -
(1) Notwithstanding, anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.
(2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of Police."
42. According to sub-Section (1), there must be prior approval of the District Superintendent of Police before any information about the commission of offence under TADA Act could be recorded by the police. This provision has been construed by this Hon'ble Court to be mandatory and going by the negative language employed therein - an absolute imperative, in the absence of which further proceedings taken under TADA Act have been held to be completely invalid and of no consequence. This Court in Hitendra Vishnu Thakur v. State of Maharashtra[3] stated as under:-
"12. Of late, we have come across some cases where the Designated Courts have charge-sheeted and/or convicted an accused person under TADA even though there is not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of TADA, merely on the statement of the investigating agency to the effect that the consequence of the criminal act resulted in causing panic or terror in the society or in a section thereof. Such orders result in the misuse of TADA. Parliament, through Section 20-A of TADA has clearly manifested its intention to treat the offences under TADA seriously inasmuch as under Section 20-A(1), notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of an offence under TADA shall even be recorded without the prior approval of the District Superintendent of Police and under Section 20-A(2), no court shall take cognizance of any offence under TADA without the previous sanction of the authorities prescribed therein. Section 20-A was thus introduced in the Act with a view to prevent the abuse of the provisions of TADA."
(emphasis in original)
43. In Rangku Dutta v. State of Assam[4], this Court found the requirement of prior approval under Section 20-A(1) to be mandatory in following words:-
18. It is obvious that Section 20-A(1) is a mandatory requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, it uses the expression "No" after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command. Reference in this connection can be made to G.P. Singh's Principles of Statutory Interpretation, 12th Edn., at pp. 404-05, the learned author has stated: "... As stated by CRAWFORD: 'Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience.' As observed by SUBBARAO, J.: 'Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative.' Section 80 and Section 87-B of the Code of Civil Procedure , 1908;
Section 77 of the Railways Act, 1890; Section 15 of the Bombay Rent Act, 1947; Section 213 of the Succession Act, 1925; Section 5-A of the Prevention of Corruption Act, 1947; Section 7 of the Stamp Act, 1899; Section 108 of the Companies Act, 1956; Section 20(1) of the Prevention of Food Adulteration Act, 1954; Section 55 of the Wild Life (Protection) Act, 1972; the proviso to Section 33(2)(b) of the In