Hamid Hussain & Anr. vs The State (Govt. Of Nct)
2010 Latest Caselaw 4695 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CRL.M.B. No.423/2010 in CRL.A.No.341/2010

%                       Date of Decision: 06.10.2010

Hamid Hussain & Anr.                                    .... Appellants
                 Through Mr.M.S.Khan, Advocate

                                   Versus

The State (Govt. of NCT)                              .... Respondent
                    Through Mr.Vikas Pahwa, Addl.Standing Counsel
                            with Mr.Jaideep Malik, APP for the State.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT

1.   Whether reporters of Local papers may be              YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                NO
3.   Whether the judgment should be reported in            NO
     the Digest?


 ANIL KUMAR, J.

* Crl.M.B.No.423/2010

This is an application by the applicants for suspension of their

sentence and to release them on bail in an appeal arising out of

Sessions Case No.178/2005 and 15/2006 from FIR No.40/2005 under

Section 121, 121A, 122, 123& 120B of IPC and Sections 4 & 5 of

Explosive Substances Act and Sections 18, 19, 20 & 23 of Unlawful

Activities (Prevention) Act, arising out of FIR No.132/2004 of Police

Station Special Cell under Sections 379/411 of IPC.

The applicants have contended that they have already served

about 5 years 7 months that is allegedly 75% of the sentence out of

maximum sentence of 7 years. The applicants alleged that they hail

from very poor families and have old ailing parents, wives and children

and they are the only bread earners and, their families have suffered a

lot due to their incarceration.

The applicants have also contended that they are innocent and

their appeal is not likely to be heard in near future though they have a

very good prima facie case. They are alleged not to be previous convicts

and are Indian nationals and permanent residents of Delhi.

The plea of the learned counsel for the applicants that the appeal

is not likely to be taken up in near future cannot be accepted as the

appeals of 2010 where the accused are under custody are listed in

regular matters and therefore, the plea that the appeal is not likely to be

taken up in near future and the applicants have already undergone

considerable period of incarceration would not be a ground to suspend

their sentence and to release them on bail. In Kishori Lal v. Rupa, (2004)

7 SCC 638, the Supreme Court has indicated the factors that are

required to be considered by the courts while granting benefit under

Section 389, Cr.PC in cases involving serious offences like murder, etc..

It will be relevant to refer to the observations made at pages 639-40,

(paras 4-6)

"4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the respondent-accused were on bail.

6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view."

The aforesaid view is reiterated by the Supreme Court in Vasant

Tukaram Pawar v. State of Maharashtra (2005) 5 SCC 281 SCC p.283,

para 7 and Gomti v. Thakurdas (2007) 11 SCC 160. In (2008) 2 SCC

571, Sidhartha Vasisht alias Manu Sharma Vs State(NCT of Delhi)

where it was held that when a person is convicted by a Court, he cannot

be said to be an innocent person until the final decision is recorded by

the Superior Court or appellate Court in his favour. The Supreme Court

rather held that the mere fact that during the period of trial, the

accused was on bail and there was no misuse of liberty, does not per se

warrant suspension of sentence and grant of bail. What is really

necessary is to consider whether reasons exist to suspend execution of

sentence and grant of bail. It was further held in para 32 of the said

judgment that the expression „within measurable distance of time' the

appeal is likely to be heard, is to be considered keeping in view the

seriousness of offence, the manner in which the crime was said to have

been committed and the gravity of offence and not to suspend the

sentence merely on the ground that the accused has undergone a

number of years of sentence. The applicants were not on bail during the

trial.

In order to substantiate that the applicants have a good prima

facie case, the learned counsel for the applicants, Mr.Khan has referred

to the testimony of PW29 Sanjay Dutt and has contended that the DD

entry was made on 5th March, 2005 at 5 p.m. and DD entry No.14

regarding the arrival/return is of 6th March, 2005 at 6 a.m. In

contradistinction to the said DD entries the deposition of PW2 Paramjit

Singh reflects that the articles allegedly recovered from the applicants

were deposited on the same day. In the circumstances it is contended

that the alleged recoveries from the applicants cannot be relied on. The

articles alleged to be recovered from the applicants are 10.560 Kgs of

RDX and pursuant to their disclosure statements, 3 AK 56 rifles with

magazines, a large number of rounds of grenades, dynamites and

detonators.

The learned counsel has also relied on the FIR No.132/2004

Police Station Vasant Vihar under Section 379 of IPC and the deposition

of I.O PW5 SI Sh.Vinay Tyagi of Special Cell. According to the learned

counsel the timings of both the FIRs are irreconcilable. Reliance has

also been placed on the missing person reports lodged by DD No.15 on

11th February, 2005 alleging that the applicants were missing from 4th

February, 2005 and 5th February, 2005 and in the circumstances it is

contended that the applicants are innocent persons and have been

implicated falsely and with malafide intentions by the respondents.

The pleas and contentions of the applicants are very vehemently

opposed by the learned Additional Public Prosecutor Sh.Vikas Pahwa. It

is contended by him that in the first week of February, 2005

information was received about the base being set up by Lashkar-e-

Taiba and applicant No.1 working for it who had been visiting Jammu &

Kashmir frequently to get arms and ammunitions. Consequently, a

police team was assembled to develop the information and identify

applicant No.1 and his whereabouts and it had transpired that it was

applicant No.1 who had been contacted by applicant No.2 in the affairs

of Lashkar-e-Taiba.

According to the learned counsel on the basis of secret

information on 5th March, 2005 that applicant No.1 is coming from

Jammu & Kashmir with consignment of RDX explosives and would

arrive at Mukarba Chowk and applicant No.2 would be coming to

receive him on his motorcycle bearing No.HR-13 S 2639. Accordingly, a

police team was assembled and sent to Mukarba Chowk,

Delhi and the information was also recorded in daily diary which has

been established as DD No.12. The applicant No.2 had come on his

motorcycle and stopped at the STD Booth of Ravi Viklang and thereafter

at 4.40 p.m. applicant No.1 got down from a Tata Sumo and talked to

applicant No.2 and as they were about to leave they were overpowered

and apprehended in presence of two public witnesses PW.1 Anil Jain

and PW22 Sanjay Dhaka. From both the accused 10.560 kgs of RDX

was recovered and they could not have any legitimate use for the

explosive RDX. The learned counsel for the respondent has also relied

on the rukka which was sent and which was received at 7 p.m prepared

by PW 19 Inspector Badrish Dutt at the instance of Inspector Mohan

Chand Sharma since deceased and ASI Attar Singh which also finds

mention in the FIR which was registered pursuant to rukka.

The applicants were interrogated at the spot and they divulged

that they were working for Lashkar-e-Taiba and the consignment of

RDX was brought from Jammu & Kashmir to be delivered to Shams @

Parvez Ahmed Khusro residing at Uttam Nagar along with two Pakistani

Fidayeen. It was also revealed by the applicants that they had collected

3 AK 56 riffles with magazines and a large number of rounds of

grenades, dynamites and detonators which according to their disclosure

statement were at a safe house at Suraj Vihar, Uttam Nagar, Delhi

where two Fidayeens and Shams @ Parvez were hiding. The applicants

also revealed the plan to attack Indian Military Academy, Dehradun,

Uttranchal.

On the basis of the disclosure statement of the applicants the

hide out was raided and in the operation three persons identified as

Bilay @ Mohd.Shams aged 24 years resident of Rawalpindi, Pakistan;

Shahnawaz aged 25 years resident of Sind, Pakistan and Shams @

Parvez resident of Patna, Bihar were killed and recovery of 3 AK 56

riffles, 6 magazines, 450 detonators, 100 kgs of dynamite, 4 hand

grenades, 3 bandoliers, 1 satellite phone, one maruti car besides diaries

and email ids of terrorists with which they were in touch with Lashkar-

e-Taiba commandos were recovered.

The applicant No.2 had also disclosed that he was introduced to

the activities of Lashkar-e-Taiba by applicant No.1. The motorcycle on

which the applicant No.2 had come to meet applicant No.1 when they

were apprehended was also found to be stolen. The shoot out had

occurred at Uttam Nagar establishing the nexus between the applicants

and the slain militants.

The information supplied by the applicants soon after their arrest

and interrogation revealed their scheduled meeting to supply RDX at

Suraj Vihar, Uttam Nagar, Delhi which resulted into shoot out would be

admissible. The hide out of the terrorists was in the knowledge of

applicants. A satellite phone was seized besides the passport of slain

militants from a trunk kept in the room of the militants besides certain

pocket diaries, telephone diaries and two sheets of paper depicting land

marks of Dehradun and areas in IMA, Dehradun.

The case against the applicants have been made out under

Sections 18, 20, 23 of Unlawful Activities (Prevention) Act. Section 18

contemplates any act preparatory to the commission of a terrorist

attack. The applicants in furtherance of criminal conspiracy carried

10.560 kgs of RDX explosive which is a special category explosive also

known as cyclonite or hexogen which is widely used in military

application and is not meant for common public use in any manner.

The explosive which was recovered from the applicants is capable of

causing devasting consequences when combined with other ingredients

and could cause immense loss of human beings and damage to the

property. Identification of the hide out of the terrorists at the instance of

the applicants can easily be construed to be an act preparatory to

commission of a terrorist act. Even under Section 5 of the Explosive

Substances Act, 1908 the culpability of the applicants is made out and

in the circumstances the applicants are also liable for enhanced penalty

as prescribed under Section 23 of Unlawful Activities (Prevention) Act,

1957.

In the totality of facts and circumstances and considering the

heinousness of the case of the applicants, this Court is of the view that

it will not be just and appropriate to suspend the sentence of the

applicants and to release them on bail. The application of the applicants

is, therefore, dismissed.

Crl. Appeal No. 341/2010

Registry is directed to prepare a compilation and supply the same

to learned counsel for the parties.

List in the category of „Regular Matters‟ at its turn.

ANIL KUMAR, J.

SURESH KAIT, J.

OCTOBER 06, 2010 'k'