Bombay High Court
Aslam Shabbir Sheikh @ Bunty ... vs The State Of Maharashtra on 1 October, 2015
Bench: R.P. Mohite-Dere
ba.1719.13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1719 OF 2013
Aslam Shabbir Sheikh @ Bunty Jagirdar,
Age: 40 years, Occ: Business,
R/at, Ward No. 2, Jahagir Building,
Srirampur, Ahamednagar,
Maharashtra
(Presently in Judicial Custody at
Thane Central Prison, Thane) ...Applicant
(Org.Acc.No.8)
Versus
The State of Maharashtra,
(At the instance of I.O. ACP,
ATS, Mumbai) ...Respondent
Mr. A. P. Mundargi, Sr. Counsel with Mr. Niranjan Mundargi for the
Applicant
Mr. Raja Thakare, Spl. P.P. with Ms. P. P. Shinde, A.P.P for the Respondent-
State
CORAM : REVATI MOHITE DERE, J.
RESERVED ON : 27th AUGUST, 2015
PRONOUNCED ON : 1ST OCTOBER, 2015
JUDGMENT :
1. By this application, the applicant seeks his enlargement on bail
in connection with C.R. No. 168 of 2012 initially registered with the
Deccan Police Station, Pune and subsequently transferred to ATS Police,
SQ Pathan 1/27
ba.1719.13.doc
Mumbai and re-registered as C.R No. 9 of 2012, for the alleged offences
punishable under Sections 307, 435 and 120B of the Indian Penal Code
read with Sections 3, 4 and 5 of the Explosive Substances Act read with
Sections 3 and 25 of the Arms Act and under Sections 16(1)(b), 18, 20, 23,
38 and 39 of the Unlawful Activities (Prevention) Act of 1967 as amended
in 2008 and under Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra
Control of Organized Crime Act (`MCOC Act').
2.
The case pertains to five bomb blasts that took place in Pune
City at around 7:00 p.m in the areas of Deccan Gymkhana, Bal Gandharv
Rang Mandir and other adjoining areas. A live bomb was also recovered
from one of the spots. These bombs were placed in the basket of bicycles.
Pursuant to the said five blasts that took place at various locations in Pune
City, an FIR came to be lodged initially with the Deccan Police Station,
Pune as against unknown persons. Thereafter, the investigation came to be
transferred to the ATS, Mumbai. Nine accused came to be arrested in
connection with the aforesaid offences and some accused are stated to be
absconding. According to the prosecution, the said bomb blasts were
planned by the accused with the intent of striking terror in the minds of the
SQ Pathan 2/27
ba.1719.13.doc
people and for causing deaths/injuries to persons and/or causing loss or
damage or destruction of property. According to the prosecution, the said
bomb blasts were planned to avenge the death of one Quatil Siddique, a
member of a banned terrorist organization, Indian Mujahideen. It may be
noted here, that Quatil Siddique was arrested in connection with the
conspiracy to commit bomb blast at Dagadu Sheth Ganpati Mandir in Pune.
Pursuant to his arrest, Quatil Siddique was lodged at Yerwada Central Jail,
Pune, where he was murdered by two persons in the Jail.
ig It is the
prosecution case, that to avenge the death of Quatil Siddique, the members
of the Indian Mujahideen, a banned terrorist organization, acting as an
organized crime syndicate conspired to cause the bomb blasts. It is alleged
by the prosecution, that initially there was a plan to kill the assailants of
Quatil Siddique when they were brought to Court by firing at them.
However, as the said plan could not be executed, it was decided to cause
the bomb blasts.
3. The present applicant is original accused No. 8, who was
arrested in the aforesaid C.R on 13 th January, 2013. Mr. Mundargi, learned
Senior Counsel for the applicant contended; (i) That the applicant was
SQ Pathan 3/27
ba.1719.13.doc
admittedly not involved in the commission of the bomb blasts that occurred
on 1st August, 2012; (ii) That the firearm weapons and cartridges allegedly
supplied by the applicant were admittedly not used in the commission of
the offence/bomb blasts that took place on 1st August, 2012. He submitted
that infact one pistol allegedly sold by the present applicant was recovered
from Irfan Mustafa Landge (accused No. 4) and that two pistols were
recovered at the instance of Firoz @ Hamza (accused No. 3) in a Delhi
Arms case. He submitted that in the Delhi Arms case, the present applicant
has not been arraigned as an accused; (iii) Nothing incriminating has been
recovered at the instance of the present applicant nor is there any
confession made by the applicant under Section 18 of the MCOC Act. He
submitted that the only alleged material as against the applicant is, the
confessional statement of the co-accused Irfan Landge, which is recorded
under Section 18 of the MCOC Act. According to him, the said confession
of the co-accused Irfan Landge does not, in any way, show that the
applicant was involved in the conspiracy to commit the bomb blast / in the
commission of the bomb blasts that took place on 1 st August, 2012. He
submitted that at the highest, the confessional statement shows that
firearms and cartridges were sold by the applicant to Irfan Landge, much
SQ Pathan 4/27
ba.1719.13.doc
prior to the hatching of the conspiracy to commit the bomb blasts. He
submitted that infact, the firearms and cartridges were allegedly sold by the
applicant to Irfan Landge (original accused No. 4) and Imran Khan
(original accused No. 2) for a consideration; (iv) Lastly, he submitted that
merely because it has come in the confessional statement of the co-accused
that the applicant shared Jihadi ideology, that by itself, is not sufficient to
show the complicity of the applicant in the present case.
4.
Learned Special P.P Mr. Thakare opposed the bail application.
At the outset, it may be noted that the learned Special P.P does not dispute
the fact, that the applicant was not involved either in the preparation of
planting of the bombs or in the actual bomb blasts that rocked Pune City on
1st August, 2012, nor does he dispute the fact, that the firearms and
cartridges allegedly supplied by the applicant to the co-accused were not
used in the commission of the said offence.
5. According to the learned Special P.P, the background of the
commission of the present offence i.e. of serial bomb blasts is to be
considered. He relied on the confessional statement of Irfan Landge in
SQ Pathan 5/27
ba.1719.13.doc
support of his contention to show that the present applicant had agreed to
supply firearms to avenge the death of Quatil Siddique. He submitted that
the initial plan of the members of the Indian Mujahideen was to take
revenge of Quatil Siddique's death, by firing at his assailants whilst they
were brought to the Court. It is for this reason, that Irfan Landge (accused
No. 4) and Imran Khan (accused No. 2) approached the present applicant
for procurement of the firearms. He submitted that the confessional
statement of Irfan Landge shows that the applicant was aware of the
purpose for which the firearms and cartridges were acquired, as the same
was informed to the applicant by Irfan Landge; that the applicant allegedly
sold the firearm and cartridges and also disclosed to Irfan Landge that he
could be contacted any time for anything else (bada saman) and that he
would provide the same. He submitted that the confessional statement of
Irfan Landge clearly shows that in April, 2012, Riyaz Bhatkal had sent Rs.
1 lakh by hawala to Irfan Landge and asked him to give the said amount to
Imran Khan (accused No. 2) and on instructions of Riyaz Bhatkal in May,
2012, Imran Khan asked Irfan Landge to procure two pistols from the
present applicant.
SQ Pathan 6/27
ba.1719.13.doc
6. The learned Special P.P. placed emphasis on the fact, that
initially, the applicant had refused to sell the firearms, but when informed
that the firearms were required for the purpose of Jihad, the present
applicant readily gave two pistols and 9 live cartridges, albeit for a
consideration. According to the learned Special P.P., the applicant by
supplying these firearms, not only committed an illegal act, but also
rendered assistance to the organized crime syndicate and as such the
applicant had reason to believe that the persons who purchased the firearms
were engaged in assisting the organized crime syndicate and that after
having knowledge of the same, had sold the pistols in furtherance of their
illegal activities. According to the learned Special P.P, the act of the
present applicant would come well within the definition of the term `abet'
in Section 2(1)(a) of the MCOC Act and under Sections 2, 3 and 4 of the
Explosive Substances Act. He submitted that Explanation 2 of Section 108
of the Indian Penal Code makes it clear that for constituting an offence of
abetment, it is not necessary that the act abetted should be committed or
that the effect requisite to constitute the offence should be caused. He
submitted that the act of the applicant i.e. of supplying pistols and
cartridges for eliminating the accused who had murdered Quatil Siddique,
SQ Pathan 7/27
ba.1719.13.doc
would squarely fall within the purview of Section 3(2) of the MCOC Act.
He submitted that the provision of Section 3(2) of the MCOC Act is para
materia with Section 18 of the UAPA Act. He submitted that considering
the material on record, it cannot be said that there are no reasonable
grounds for believing that the applicant is not guilty of the offences with
which he has been charged. He submitted that the present offence has been
committed when the applicant was on bail.
7.
Heard learned Senior Counsel for the applicant and the learned
Special P.P. at length. Both the learned Counsel relied on several
judgments in support of their contentions. In order to consider the role of
the present applicant in the commission of the alleged offence, it would be
necessary to consider the material that has come on record as against the
applicant. At the outset, it may be noted that admittedly even according to
the prosecution, the applicant was not involved in the commission of the
bomb blasts that took place on 1 st August, 2012 nor is it the prosecution
case that the firearms allegedly sold to Irfan Landge (accused No. 4) were
used in the commission of the offence. A perusal of the final report reveals
the prosecution case and the material qua the applicant which is as under:
SQ Pathan 8/27
ba.1719.13.doc
(i) that during interrogation, Irfan Landge, original accused No. 4
and Imran Khan, original accused No. 2 disclosed that they were in contact
with the present applicant and had approached him and asked him to assist
in carrying out Jihad by providing firearms and ammunition for the purpose
of assassination of religious/political leaders and also for firing on the
police. It is alleged that the present applicant also shares the same Jihadi
ideology and hence, he knowingly assisted the accused by providing
firearms and ammunition, knowing that the firearms were being procured
for the purpose of assassination of religious/political leaders and for firing
on the police;
(ii) that during the course of investigation of this case, one
country-made pistol, one magazine, four live cartridges acquired by Irfan
Landge (accused No. 4) from the present applicant, were recovered at the
instance of Irfan Landge under a memorandum panchnama;
(iii) that the accused Nos. 1 to 4 had revealed after their arrest, that
two pistols and ammunition sold by the present applicant were recovered
SQ Pathan 9/27
ba.1719.13.doc
by the Delhi Special Cell, at the instance of Firoz @ Hamza (accused No.
3) from his workshop at Pune under a memorandum panchnama in C.R No.
16 of 2012 (it is not in dispute that the applicant has not been arraigned as
an accused in the said C.R by the Delhi Special Cell);
(iv) that investigation has revealed that the present applicant is a
resident of Shrirampur, Maharashtra and is a known criminal having Jihadi
ideology, and is a close associate of Saquib Nachan (a convict in the
Ahmedabad Bomb Blast case) and is also an accused in a case alongwith
Saquib Nachan; and;
(v) that statements of witnesses reflect the jihadi attitude of the
applicant, his involvement in unlawful activities and his association with
members of terrorist organisations.
8. The aforesaid five grounds are set out in the final report as
evidence collected as against the present applicant. As far as the
memorandum panchnama under Section 27 of the Evidence Act, of
recovery of a firearm and cartridges at the instance of Irfan Landge
SQ Pathan 10/27
ba.1719.13.doc
(original accused No. 4) is concerned, that is a matter of record. The facts
as disclosed in the memorandum statement being inadmissible, except to
the extent of discovery of weapons, cannot be considered. The
confessional statement of Irfan Landge (original accused No. 4) was
recorded under Section 18 of the MCOC Act on 9 th January, 2013. Certain
paragraphs are being reproduced which have been relied upon by both, the
learned Senior Counsel for the applicant as well as the learned Special P.P.
The relevant paragraphs read thus:
"lu 2004 esa gekjs eksgYys esa jsgusokyk eqLrQk
l¸;n us ges oftZ'k[kkus esa fOgfMvks ds tjh, 2 flMh fn[kkbZ Fkh A
rHkh ge 15 ls 20 yksx Fks A mlesa lehj IyEcj vkSj dgh yksx
gkthj Fks A mlesa xqtjkr naxs ckcjh eLthn dks 'kghn fd;k Fkk A
oSls gh tEew df'ej vkSj vQxf.kLrku ;gkWa ij gks jgs
eqlyekukasij tqYe ds ckjs esa fOgfMvks fDyIl Fks A ;g lc
ns[kdj eSa tlckrh gks x;k Fkk A lu 2005 esa eSusa lh ,l- Vh-]
cacbZ ds vatweu&bLyke dkWyst easa 'izeks'ku vkWQ mnqZ yWXost Mh-
Vh- ih- Mks;dk ;qfuOgflVh' dkslZ ds fy, nk[ky gqvk Fkk A mlh
njE;ku Jhjkeiwj esa jsgusokyk caVh tkxhjnkj mlds dsl ds fy,
cacbZ ls'ku dksVZ esa vkrk Fkk A caVh tkxhjnkj dk lgh uke
vLye 'ks[k gS A ls'ku dksVZ esa mlus eq>s iM?kk fHkoaMh rk
fHkoaMh esa jsgusokys lkdhc ukp.k dh mez 50 lky gksaxh mlls
SQ Pathan 11/27
ba.1719.13.doc
feyk;k Fkk A lkdhc ukp.k eq>s ges'kk ftgkn ds ckjs esa
le>krk Fkk vkSj dsgrk Fkk gj eqlyuksadks ftgkn djuk t:jh gSaA
mlds ckrks ls esjs fny esa Hkh ftgkn djus dk tlck iSnk gqvk A
lu 2006 esa eqLrQk l¸;n ds lkFk vkSjaxkckn vkSj chM ds dkQh
lkjs yMds ,-ds- 56] jk;QYl xksfy;k vkSj vkj-Mh- ,Dl dh
xqukgesa idMs x;s Fks A tqu 2006 esa] eSa esjk bErsgku nsdj xko
okil vkx;k A
......................
tqykbZ 2011 ls eS] vln] bejku vkSj fQjkst lk;cj
dWQs vkSj vU; ek/;eksals vDlj QS;kt ls pWVhax djrs Fks A QS;kt
dkx>h us je>ku efgus esa eq>s vkSja caVh tkxhjnkj dks lkdhc
ukp.k ls feyus dks dgk rc ge nksuks mlds ?kj iM?kk fHkaoMh
tkdj lkdhc ukp.k ls eqykdkr dh Fkh A rc eq>s lkdhc ukp.k
vkSj caVh tkxhjnkj QS;kt dkx>h ds fy, dke djrs gS] ;g
ckr ekywe iMh A QS;kt dkx>h ftgkn ds fy, uk gh iSlks dh
enr dj jgk Fkk uk gh vlyk Hkst jgk Fkk A blfy, xqLlk
gksdj ;g ckr geus dk'khQ dks crkbZ A mlds ckn fMlsacj 2011
ds vk[khj esa QS;kt dkx>h us ges fj;kt HkVdy dk bZ&esy
vk;- Mh- nsdj mlds dkWUVDV esa tkus dks dgk a fj;kt HkVdy
baMh;u eqtkghn~nhu ls rkyqd j[krk gSa] ;g ckr ges ekyqe Fkh A
tc ge yksxksus ifgyhckj fj;kt HkVdy dks bZ& esy ij dkWUVWDV
fd;k rc oks gekjs pkjksds ckjs esa vPNh rjgls tkurk Fkk ;g ckr
SQ Pathan 12/27
ba.1719.13.doc
gesa ekywe iMh A ge pkjksHkh ftgkn djus ds fy, rS;kj gS A ;g
ckr geus fj;kt dks crk;h Fkh A fj;kt HkVdy us ges eksckbZy
ds tjh, fuEcq> lkW¶Vosvj dk fdl rjg ls bLrseky djuk \ ;g
ckr pWVhax ds tjh, fl[kkdj viuk vk;- ih- gkbZM djus ds fy,
socks24.org ds ckjs esa ges fl[kk;k Fkk A ge vyx& vyx
eksckbZy Qksu ls fj;kt HkVdy ls pWVhx ds tjh, laidZ esa Fks ;g
ckr geus dk'khQ dks crk;h A eSa esjs eksckbZy Qksu ua-
8855003123 vkSj 8446921781 ds tjh, vln [kku bejku
[kku] fQjkst l¸;n] equhc eseu] Qk:[k ckxoku vkSj dk'khQ
fc;kckuh ds laidZ esa Fkk A eSa QS;kt dkx>h] bdcky HkVdy vkSj
fj;kt HkVdy ls vyx & vyx bZ&esy vk;- Mh ij pWVhx
djrk Fkk A eSa esjk frnd.fair bl ;kgweslsatj vk;- Mh ls fj;kt
HkVdy ds vikkijaan bl ;kgw eslatj vk;- Mh ij pWV djrk Fkk A
bl rjg ls eSa esjs lovblind bl ;kgw eslatj vk;- Mh ls QS;kt
dkx>h ds lkFk mlds skay blue bl ;kgw eslsatj vk; Mh ij pWV
djrk Fkk A blh rjg ls eSa esjs 2 vyx& vyx fuEcq> vk; Mh-
ls fj;kt HkVdy vkSj QS;kt dkx>h ds lkFk laidZ esa Fkk A eSa
esjk fuEcq> vk; Mh 0-legend blls fj;kt HkVdy dk fuEcq>
vk;- Mh- zoros5060 bl ij laidZ esa Fkk A blh rjg eSa esjk
nqljk fuEcq> vk;- Mh- silver 232 blls QS;kt dkx>h ds lkFk
mldk fuEcq> vk;- Mh- school234 bl ij laidZ esa Fkk A
.........................
SQ Pathan 13/27
ba.1719.13.doc
vizSy 2012 esa fj;kt HkVdy us eq>s flyOgj bu
gkWVsy ds ikl esa gokys ds tjh, 1 yk[k :i;s Hkstdj og iSlk
bejku dks nsus dks dgk Fkk A mlds eqrkchd eSusa og gokysdk iSlk
vkSjaxkckn esa tkdj bejku dks fn;k A fj;kt HkVdy ds dsgusls ebZ
2012 esa bejku us eq>s 2 fiLry pkfg,] ,Sls crkdj mlus caVh
tkxhjnkj ls feykus dks dgk A nqljs fnu ge nksuks caVh
tkxhnkj ls feyus Jhjkeiwj pys x;sA caVh ls feydj
tc ge yksxksus mlls fiLry dh ekWax dh rks 'kq: esa
mlus euk dj fn;k ij tc bejku us mls ;g 2
fiLry ftgkn ds fy, pkfg, ,Sls crk;k A rc mlus
70 gtkj esa 2 fiLry vkSj 9 jkÅaM fn, A og nksuksa
fiLry vkSja jkÅaM bejku ds ikl Fkh A 13 ebZ 2012 esa
esjh 'kknh ds fnu eSaus ------ vkSj ------- dks vln [kku ls
feyk;k Fkk A esjs 'kknh esa iquk ls fQjkst l¸;n Hkh vk;k Fkk A
tqu 2012 esa baMh;u eqtkfgn~nhu la?kVu ds
drhy fl/nhdh dk ;sjoMk tsy esa 'kjn eksgG vkSj
vyksd Hkkysjko us dry fd;k Fkk A fj;kt HkVdy
vkSj QS;kt dkx>hus fpMdj bl ckr dk rqjar cnyk
SQ Pathan 14/27
ba.1719.13.doc
ysuk pkfg, ,Sls ge yksxks dks crkdj dksVZ esa tkdj
mu nksuks dh gR;k djus dks dgk Fkk A ml oDr gekjs
gtkj :i;s nsdj caVh tkxhjnkj ls vkSj 1 fiLry
[kfjnusdks dgk A mlds eqrkchd esa caVh tkxhjnkj dks
feydj mls ;g ckr crkbZ rqjar mlus eq>s vkSj 1
fiLry vkSj 4 jkmaM fn;k ml oDr caVh tkxhjnkjus
bl dke esa dksbZ cMk lkeku pkfg,
ig rks mldk Hkh
barstke gks tk,xk] ,Sls crk;k A og fiLry vkSj
jkÅaM ysdj esa esjs ?kjij pyk vk;k A bejku vkSj
fQjkst us 'kjn vkSj vyksd ds ckjs esa tkudkjh
fudkydj mudk dksVZ dk MsV fudkyk Fkk A mUgksus
,Sls crk;k dh] dksVZ esa flD;wfjVh dh otg ls dke
djuk eqf'dy gSa A fQj ge yksxksus 'kjn eksgG
vkSj vyksd Hkkysjko ds ifjokj okyksa ds mij vWVWd
djus dk vkSj tc mudks ;sjoMk tsy ls dksVZ esa
ysdjtkrs gSa rc muds mij Qk;jhax djuk ;k mudh
xkMh dks cEc CykLV ls mMk nsuk ,Sls Iyku fd;s Fks A
ysdhu fj;kt HkVdy vkSj QS;kt dkx>h us ges iquk
SQ Pathan 15/27
ba.1719.13.doc
vkSj cacbZ esa cEc CykLV djds drhy fl/nhdh ds
dry dk cnyk ysuk pkfg, ] ,Sls crk;k A mlh nkSjku
fj;kt HkVdy us gesa iquk cacbZ dh rjQokys byk[ks esa HkkMsls ?kj
ysus dks dgk Fkk A eS] vln vkSj bejku iquk esa fQjkst ds "Option
by Firoz" diMks dh nqdku esa ys x, A ml nqdku ds dschu esa
geus fQjkst] equhc vkSj Qk:[k dks ;g ckr crkbZ A oks frUgks Hkh
bl dke ds fy, rS;kj gks x;s A mlh oDr vln us fQjkst vkSj eq>s
fiaijh byk[ks esa HkkMs ls :e ysus dks dgk A vln [kku ds dgus ds
eqrkfcd cEc CykLV ds dke ds fy, cksxl fledkMZ ds isij cukus
dh ftEesnkjh Qk:d ds mij lkSih xbZ vkSj eksckbZy Qksu vkSj
fledkMZl [kfjnus dh ftEesnkjh equhc dks lkSih xbZ A mlds ckn ge
frUgks okil pys vk;s A
..............................
fj;kt HkVdy ds dgus ds eqrkfcd eSa vkSj fQjkst 18
tqykbZ 2012 dks 'kkdhj vkSj vgen dks dklkjokMhokys HkkMs ds
¶yWVij ysdj x;s Fks A mlds ckn eSa vkSj fQjkst vius ?kj pys x;s
A mlds djhc 2 fnu ds ckn vln vkSj bejku esjs ?kj ij vk;s Fks A
rc bejku ds gkFk esa cMh jsX>hu dh cWx Fkh A vln ogkWa ls okil
pyk x;k A eSa vkSj bejku dklkjokMh ds ¶yWV ij x, rHkh bejku
us og cWx 'kkdhj dks nh Fkh A rc mlus og cWx [kksydj ns[kk rc
mles ckWy csjhax vkSj 2 fiLVy Fks A eSa bejku dks NksMdj fQjkst ds
SQ Pathan 16/27
ba.1719.13.doc
ikl pyk x;k A jkr esa eSa vkSj fQjkst [kkuk ysdj dklkjokMh
¶yWVij vk x;s A jkr esa [kkuk [kkus ds ckn vgen vkSj 'kkdhj us
muds cWx ls dqN lkeku fudkyk mles 3 rS;kj cEc ij mles ldhZV
ugha yxk gqvk Fkk] dkQh lkjs ftysVhu fLVDl ,d fVu ckWDl] 3
ydMh ds [kkyh ckWDl] lksYMjhax e'khu] lksY;q'ku V;qc] gkrksMh] 6
ckjh'k ds tWdsV vkSj eksph f[kys Fks A ml mDr vgen vkSj 'kkdhj
us ges cEc vkSj ldhZV ds ckjs esa dkQh lkjh tkudkjh nh Fkh A tc
bejku us mUgs ^^vki yksxks us dgkWa ij Vªsuhax yh gS ^^ ,Sls iqNk rc
^^;klhu HkVdy us mUgs Vªsuhax nh gS^^ ,Sls crk;k A 'kkdhj vkSj
vgen us fiLVy gkFk esa ysdj iqfyl vkrs gh njoktk dSls
[kksyuk \ dkSu ls vWxyls iqfyl is Qk;j djuk\ ;g lc crk;k Fkk
A mlds ckn fQjkst pyk x;k A nqljs fnu lqcg fQjkstt okil vk;k
A 'kkdhj us fQjkst dks fVu dk CkkWDl fn[kkdj mls ,Sls 6 ckWDl
cukds ykus dks dgk A eSa vkSj fQjkst okil pys x;s A 'kke esa
fQjkst us mlds nksLr 'kguokt ds ikl ls 6 fVu ds ckWDl cuok;s A
eSa vkSj fQjkst ,d Vscy QWu] 6 fVu ds ckWDl vkSj jkr dk [kkuk
ysdj dklkjokMh ¶yWVij pys x;s A jkr dk [kkuk [kkus ds ckn eSa]
vgen] fQjkst] bejku vkSj 'kkdhj us fVu ckWDl esa ckWy csjhax ,d
ykbZu ls yxkus dk dke pkyw dj fn;k A nqljs fnu fQjkst vkSj
vgen bysDVªhdy lkeku [kjhnh djus ds fy, pys x;s A eSa fj;kt
HkVdy ds lkFk pWVhax djus ds fy, fQjkst ds nqdkuij pyk x;k A
fj;kt HkVdy ds dgus ds eqrkfcd eSus fQjkst dks gokyk ysus dks
dgk A fQjkst nksigj esa 2 yk[k gokyk ysdj pyk vk;k Fkk A
mlds ckn eS vkSj fQjkst okil dklkjokMh ds ¶yWVij pys x;s A
SQ Pathan 17/27
ba.1719.13.doc
ml oDr vgen ekdsZVls lksY;q'ku V;qc] ok;j] cWVjh] bysDVªkWfuDl
ikVZl] 6 dWf'kvks fjLV okWp ysdj vk;k Fkk A ml fnu ls 23 tqykbZ
2012 ds 'kke rd ge pkjks us feydj vkSj 3 cEc cuk;s A
.........................."
9. There is a statement of one witness, dated 15 th January, 2013,
who is an acquaintance of both, the applicant and Irfan Landge. He has
disclosed in the said statement that he was aware that Irfan Landge was in
touch with the present applicant and that Irfan Landge and Imran Khan
would come to Shrirampur to meet the applicant from 2008. It is alleged
by the said witness that the present applicant had disclosed to him in July,
2012 that Irfan Landge, Imran Khan and their friend were working for
Indian Mujahideen, a terrorist organization and that, the said persons were
going to take revenge for the death of Quatil Siddique's murder. He has
alleged that the applicant had disclosed to him that for the said Jihadi work,
he had given three pistols and cartridges.
10. Apart from the aforesaid, there are statements of two witnesses
which have been recorded under Section 164 of the Code of Criminal
Procedure. One of the witnesses has stated as under :
SQ Pathan 18/27
ba.1719.13.doc
That in 2005, he had gone to visit Maulana Zameer along with
his friend. He has stated that his friend disclosed to him that he had some
friends in Aurangabad, who worked for Jihad and disclosed the names of
Maulana Ameer, Bilal, Aaqif Biyabani, Kashif Biyabani, Abdul Aziz,
Zubair, etc. He has stated that Maulana Zameer introduced them to the
aforesaid persons and there was discussion on Jihad with respect to Babri
Masjid and Godhra issues. He has stated that in 2006 in the Aurangabad
Arms Hall case, Maulana Ameer, Bilal, Aaqif Biyabani, Abdul Aziz, Zubair
and Sayyed Mustafa were arrested. He has stated that he met Kashif
Biyabani in the Mumbai Sessions Court. He has stated that the persons
who were in custody were asking Kashif to recruit new persons for Jihad.
He has further alleged that Kashif disclosed to him that he was in touch
with Fayyaz Qagzi and asked him to go and meet Fayyaz Qagzi in Saudi.
He has stated that Irfan Landge after completing his education had come to
reside in Raj Nagar in 2007 and that he had met Irfan Landge who used to
talk about Jihad. He has stated that Kashif had given him books on Jihad
and that he had given the said books to Irfan Landge. He has stated that
thereafter all the aforesaid persons would regularly chat with each other
SQ Pathan 19/27
ba.1719.13.doc
and that they would regularly meet one another. He has stated that the said
persons would refuse to disclose anything to him or keep in touch with him.
He has stated that the present applicant, a resident of Shrirampur would
meet Saquib Nachan and that both had Jihadi ideologies.
Second witness whose statement is recorded under Section 164
Cr. P. C., has stated as under :
The said witness has stated that he knew the present applicant
from 1997 and that the present applicant was his relative. He has stated
that in a murder case at Padga, the present applicant was arrested and that
the said witness had gone to meet the present applicant in Mumbai along
with the cousin of the applicant. He has stated that after two to three years,
the present applicant was acquitted from the said case. He has stated that
after the applicant's acquittal, he started harbouring Jihadi ideologies. He
has stated that he knew Irfan Landge, and that Irfan Landge and the
applicant were in touch with one another. He has stated that the present
applicant had also disclosed to him that Imran Khan and Irfan Landge
belong to the Indian Mujahideen group and that they work on Jihadi lines
and that Saquib Nachan, a resident of Padga also has Jihadi ideologies. He
SQ Pathan 20/27
ba.1719.13.doc
has further stated that in July, 2012, when he met the applicant, the
applicant had disclosed to him, that Irfan Landge and Imran Khan had
taken three pistols and live cartridges from him and that the applicant had
supplied the same to the said persons to avenge the death of Quatil
Siddique and that for doing Jihad work.
11. The question that falls for consideration is whether the
aforesaid material qua the applicant is sufficient to deny bail to the
applicant. As noted earlier, the applicant was admittedly not part of the
bomb blasts that took place on 1st August, 2012, nor the weapons/cartridges
allegedly supplied by the applicant to Irfan Landge and Imran Khan, were
used in the said offence. A careful perusal of the confessional statement of
Irfan Landge reflects that the applicant was not concerned with the bomb
blast and it prima facie appears that he was not aware of the conspiracy to
commit bomb blast in Pune city. The material qua the applicant appears to
be, that he supported Jihadi ideology and supplied pistols and live
cartridges to Irfan Landge and Imran Khan to avenge the death of Quatil
Siddique, however, admittedly, the said weapons/cartridges were not used
by the co-accused in the bomb blast. Even the statements recorded under
SQ Pathan 21/27
ba.1719.13.doc
Section 164 do not, in any way, show that the applicant was aware of the
conspiracy to commit bomb blast. All that the statements under Section
164 show is that the applicant knew Irfan Landge and Imran Khan. It is
pertinent to note that the applicant is stated to harbor Jihadi ideologies with
Saquib Nachan, however, Saquib Nachan has not been made a co-accused
in the said case. Prima facie, at this stage, there appears to be no nexus
between the supply of arms and ammunition by the applicant to Irfan
Landge and the bomb blast that took place on 1st August, 2012.
12. According to the prosecution, the act of the applicant in
supplying arms and ammunition would squarely be covered by the term
`abet' as defined under Section 2(a) of the MCOC Act and under Section
108 of the IPC. Section 2(a) defines `abet' as under :
"(a) "abet", with its grammatical variations and
cognate expressions, includes,-
(i) the communication or association with any
person with the actual knowledge or having reason to believe
that such person is engaged in assisting in any manner, an
organised crime syndicate;
(ii) the passing on or publication of, without any
lawful authority, any information likely to assist the organised
crime syndicate and the passing on or publication of or
distribution of any document or matter obtained from the
organised crime syndicate; and
SQ Pathan 22/27
ba.1719.13.doc
(iii) the rendering of any assistance, whether
financial or otherwise, to the organised crime Syndicate."
Explanation 2 of Section 108 reads thus :
"Explanation 2.- To constitute the offence of abetment it
is not necessary that the act abetted should be
committed, or that the effect requisite to constitute the
offence should be caused."
13. Reliance on the aforesaid definitions by the learned Special
Public Prosecutor to connect the applicant with the alleged offence, prima
facie, appears to be little farfetched at this stage, considering the material
on record, as of today. Merely because the applicant had supplied arms and
ammunition to Irfan Landge and Imran, for a consideration, to avenge the
death of Quatil Siddique which ultimately could not be executed, cannot be
said to include an act subsequently committed by the co-accused i.e. of
causing bomb blasts to avenge the death of Quatil Siddique. The nexus
between the two is doubtful. Prima facie, it appears that the conspiracy to
commit bomb blast was subsequent to the supply of the arms and
ammunition by the applicant. Prima facie, at this stage, it is doubtful, if the
applicant can be attributed with the knowledge of conspiracy to commit
bomb blasts and of the commission of bomb blasts. The prosecution as on
SQ Pathan 23/27
ba.1719.13.doc
today, has not brought on record any material to show that the applicant
had knowledge or was aware that bomb blasts were to be planned/caused.
Merely because the applicant harboured Jihadi ideology, had supplied
arms/cartridges for avenging the death of Quatil Siddique and had
promised to supply bada saman, cannot be a ground to extend the
subsequent act of bomb blasts to the applicant, by taking recourse to the
aforesaid definitions. Infact, the applicant could have been prosecuted for a
separate independent offence.
14. Considering the material on record, as it stands today, prima
facie, it is difficult to come to a conclusion that the applicant is guilty of the
offences with which he has been charged. The applicant has been in
custody since his arrest on 13th January, 2013 i.e. for more than 21/2 years.
As far as antecedents are concerned, it appears tht the applicant has been
acquitted in all the 13 cases. Accordingly, the application is allowed on the
following terms and conditions :
ORDER
(i) The applicant be released on bail on executing PR Bond in
the sum of Rs. 50,000/- with one or two sureties in the like amount;
SQ Pathan 24/27
ba.1719.13.doc
(ii) The applicant shall attend the Kalachowky Police
Station, A.T.S, once in a month on the first Saturday of every month
between 11:00 a.m. to 12:00 noon till the conclusion of the trial;
(iii) The applicant shall not tamper or attempt to contact the
complainant, witnesses or any person concerned with the case;
(iv) Theig applicant shall inform his latest place of
residence and mobile contact number immediately after being
released and/or change of residence or mobile details, if any, from
time to time to the Court seized of the matter and to the Investigating
Officer of the concerned Police Station;
(v) The applicant to cooperate with the conduct of the trial;
(vi) If there is a breach of any of the aforesaid conditions, the
prosecution shall be at liberty to seek cancellation of the applicant's
bail.
SQ Pathan 25/27
ba.1719.13.doc
15. The aforesaid observations are prima facie, for deciding this
application, and the Trial Court shall decide the case on its own merits, in
accordance with law, uninfluenced by the observations made in this order.
16. The Application is allowed in the aforesaid terms and is
accordingly disposed of.
17. Parties to act on the authenticated copy of this order.
ig REVATI MOHITE DERE, J.
SQ Pathan 26/27
ba.1719.13.doc
CERTIFICATE
Certified to be true and correct copy of the original signed Order.
__________
SQ Pathan 27/27
