Govt. Of Nct Of Delhi Through ... vs Hamid Hussain @ Abu Faisal & Ors.
2011 Latest Caselaw 832 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl. L.P. No. 124/2010

%                    Date of Decision: 11.02.2011

Govt. of NCT of Delhi                                  .... Petitioner
Through Commissioner of Police

                    Through Mr. Vikas Pahwa, Additional Standing
                            Counsel (Crl.) and Mr. Jaideep Malik
                            APP for State/Petitioner


                              Versus


Hamid Hussain @ Abu Faisal & ors.                   .... Respondents

                    Through Mr. M.S.Khan and Mr. Nitin Kumar
                            Advocates    for  Respondent  Nos.
                            1,2,4,5, & 6
                            Ms. Nitya Ramakrishnan, Mr.Rahul
                            Kriplani and Ms. Suhasini Sen
                            Advocates for Respondent no.3

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE S.L. BHAYANA

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.

*

1. The State has sought leave to appeal against the judgment dated

8th January, 2010 passed by the Additional Sessions Judge-II, New

Delhi in S.C. No. 178/2005 titled „State vs. Hamid Hussain & Ors.‟

arising from FIR No. 40/2005, PS Special Cell, under Section 121/121-

A/122/123 & 120B IPC and under Section 4/5 of Explosive Substance

Act and Sections 18/19/20/23 of Unlawful Activities (P) Amendment

Act and also in FIR no. 132/2004, PS Special Cell under Section

379/411 of IPC acquitting all the respondents/accused persons of the

various offences for which the charges were framed against them,

however convicting the Respondents No. 1 & 2 only under section 5 of

Explosive Substances Act read with 120-B of IPC and section 18 and

23 of the Unlawful Activities (P) Act 2004 read with 120-B of IPC.

2. Petitioner‟s case in brief is that during the first week of February

2005, vital information was received that the banned terrorist

organization called Laskhkar-e-Tayyaba (LeT) has set up base in Delhi.

It was alleged that one Hamid Hussain resident of Seelampur Delhi is

working for the banned organization. It was also learnt that Hamid

Hussain was frequently visiting Kashmir to get arms, ammunitions and

explosive substances and was also getting instructions from the LeT

commanders. He was visiting different parts of the country to spread

the network of LeT. On receipt of this information, a team under the

supervision of Shri Rajbir Singh ACP, comprising of Insp. Mohan Chand

Sharma, Insp Balrish Dutt, SI Sanjay Dutt, SI Rahul, SI Ramesh

Lamba, SI Subhash Vats, SI Rajendra Singh Sehrawat, SI Kailash

Bisht, SI Jai Kishan and SI Vinay Tyagi was formed to develop this

information and identify Hamid Hussain and his whereabouts in the

Seelampur area.

3. On 5th March, 2005 at 2 pm, source information was received

that Hamid Hussain is coming from J&K with a consignment of RDX

explosive material and would alight at Mukarba Chowk near Karnal by-

pass at about 4.30 pm. It was informed that his associate Mohd. Shariq

will be accompanying him on his motorcycle No. HR13 S 2639. A team

of officers was constituted and the officers reached the spot at 3:15 pm,

near the red signal of Sanjay Gandhi Transport Nagar T Point, near

Mukarba Chowk. Two independent witnesses namely Anil Jain and

Sanjay Dhaka agreed to join the police party. At about 4:15 pm, Mohd

Shariq came on his motorcycle and stopped near Ravi Viklang STD.

After waiting for sometime at about 4.40 pm, Hamid Hussain got down

from a Tata Sumo and approached Mohd. Shariq. After talking to him

for sometime, both of them sat on the motorcycle. When they were

about to start the motorcycle, they were overpowered by the police

party.

4. It is further asserted that accused Hamid Hussain was carrying a

blue and green colour air bag, the contents of which were checked and

beneath the layer of clothes, a plastic sack in a black polythene was

recovered containing 22 card board packets holding RDX weighing

about 480 gms and their collective weight was 10.560 kgs. The RDX

was seized, samples were taken and parcels were prepared and sealed

with `MCS‟ seal and CFSL forms were also filled. The motorcycle was

also seized and was taken in possession through a seizure memo. On

interrogation of both the accused, their full particulars were noted down

which are as under:

(a) Hamid Hussain @ Abu Faisal s/o Rashid Ahmed, 3960, Gali No. 10, Jafarbad, Seelampur, Delhi;

(b) Mohd Shariq s/o Mohd Yasin r/o C-87/15, Gali No. 10, Jauhar bangar, near Seelampur, Delhi.

5. Both the accused were interrogated at the spot and they revealed

that they were working for terrorist organization LeT. Hamid Hussain

admitted that the consignment of RDX explosives was brought from

Jammu and was supposed to be delivered to another LeT activist

Shams @ Parvez Ahmed Kusro, residing in Uttam Nagar, New Delhi

along with two Pakistani nationals who are LeT Fidayeen. Rukka was

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

Mohan Chand Sharma which was sent for registration. FIR No. 40/05

was registered under sections 121, 121-A, 122, 123, 120B IPC read

with 4& 5 of Explosive Substance Act and FIR No.19/20 of Unlawful

activities (Prevention) Act 2004 at PS Special Cell through PW 18 ASI

Vikram Singh.

6. On intense interrogation of the two accused, they revealed that

they had collected three AK 56 rifles with magazines and a large

number of rounds of grenades, dynamites and detonators which were

lying at a safe house at Suraj Vihar, Uttam Nagar, Delhi where Shams

@ Parvez and two Pakistan based LeT Terrorists Bilawal and Shahnawaj

were hiding. They also revealed that the Fidayeen were planning to

conduct an attack on Indian Military Academy (IMA) Dehradun,

Uttranchal.

7. With this information, a team was constituted which reached

Suraj Vihar, Uttam Nagar, Delhi. The hide out was identified by accused

Hamid Hussain and Mohd. Shariq. The area was receded and later

evacuated. When the hide-out was surrounded, sensing police presence,

the militants open fired and in the ensuing shoot out, three militants

were killed who were identified as [email protected] Shaqib Ali, aged 24 years

r/o Rawal Pindi, Pakistan; Shahnawaj aged 25 years r/o Sindh,

Pakistan and [email protected] Parvez r/o Patna, Bihar. A case vide FIR No.

190/05 dated 6th March 2005 under various provisions of UAP Act, IPC

and ES Act besides Arms Act was registered. From the hide out three

AK 56 rifles, six magazines, 450 detonators, 100 Kg Dynamite, four

hand grenades, three bandoliers, one Satellite phone and one Maruti

Car besides diaries and e-mail IDs of terrorists with whom they were in

touch with LeT Commanders were recovered.

8. During further investigation by the police, it transpired that

accused Hamid Hussain and Mohd. Shariq were introduced in these

activities by one Salim @ Doctor @ Masalewala @ Salar r/o Madhya

Pradesh at whose behest they had travelled to Kathmandu, Nepal where

they had met Abdul Aziz, a commander of LeT. Accused Mohd. Shariq

disclosed that he was introduced to LeT by Tanjim and accused Hamid

Hussain and he had been residing with deceased militant Shams @

Parvez at their hide out at Suraj Vihar, Uttam Nagar. The motorcycle

which was used by accused Mohd. Shariq bearing no. HR 13 S 2639

was found to be a stolen one and was the subject matter of FIR no.

132/04 dated 16th April 2004 u/s 379/411 of IPC of PS Vasant Vihar

for which accused Mohd. Shariq faced a separate trial clubbed with the

present case.

9. Prosecution further contended that accused Hamid Hussain

procured a consignment of hand grenades and pistol in June/July

2004 from Salim @ Doctor and the hand grenade was kept in the safe

custody of accused Dilawar Khan r/o Welcome Nagar and the pistol was

kept in the custody of Imam Masood of Bhaghwali Masjid. During the

investigation, it was also found that the name of accused Iftkhar Ashan

Malik was found in the diary of slain militant through whom

information relating to IMA passes were obtained who was apprehended

on 8th March 2005 and it was found that slain militant [email protected] Parvez

had given specific instructions to accused Mohd. Iftkhar Ahsan Malik to

gather information regarding certain activities of the IMA. During the

course of investigation on 12th March 2005 accused Maulanan Dilawar

Khan and Masood Ahmed were arrested on the identification of accused

Hamid Hussain. Further investigation revealed that accused Haroon

Rashid @ Farukh had been providing funds for carrying out terrorist

activities to the slain militants at the behest of Saleem @ Doctor who

was then arrested on 13th May 2005 and produced before the court of

Ld ACMM and supplementary challan against accused Haroon was filed

on 10th August, 2005.

10. The charges were framed against the respondents and during the

trial prosecution recorded the statement of 30 witnesses. The

statements of respondents under section 313 of Cr.P.C were recorded

on 26.11.2009. The Trial Court considering the evidence, convicted

Respondent Nos. 1 & 2 u/s 5 of Explosive Substances Act, r/w 120B of

IPC and also u/s 18/23 of Unlawful Activities (Prevention) Act, 1957

read with section 120B and convicted respondent no.2 also under

section 411. Respondents no. 3 to 6 were however, acquitted of charges

framed against them by order dated 8.1.2010.

11. It has been urged by the learned counsel for the state that there

is sufficient trustworthy evidence on record so as to infer that the

respondents had participated in the elaborate conspiracy involving

terrorist activities against the sovereignty of India and the Court below

has committed a manifest error in acquitting respondents on serious

charges which were amply established by the evidence on record.

12. The learned counsel contended that the accused persons have

been involved in a crime of catastrophic proportions by planning an

attack on the Indian Military Academy, Dehradun, pursuant to a

conspiracy with the view to wage a war against the Government of India

punishable under section 121 and 121A of the IPC. It was also argued

that the learned Trial Court did not appreciate the fact that the

possession of huge quantity of powerful explosives, sophisticated arms

and ammunitions by the slain terrorist, who were to indulge in

„Fidayeen‟ operation, was with a definite purpose and was a clear

indicator of the grave danger in store for the Indian Army.

13. Learned Counsel emphasized that the Trial court did not

appreciate that for criminal conspiracy the acts of the respondents

could not be segregated. Even if a person withdraws after participating

in a conspiracy for some time, that does not dilute the factum of

conspiracy, as per Section 120-A of the IPC and Section 10 of the Indian

Evidence Act. In support of his submission, learned counsel has relied

on the judgment of State v. Nalini, 1999(5) SCC 253 in which it is

upheld that the first condition for the applicability of Section 10 of the

Indian Evidence Act is the existence of "reasonable ground to believe"

that the conspirators have conspired together. This condition will be

satisfied even when there is some prima facie evidence to show that

there was such a criminal conspiracy. If the aforesaid preliminary

condition is fulfilled then anything said by one of the conspirators

becomes substantive evidence against the other, provided that it should

have been a statement „in reference to their common intention.‟

14. Learned Counsel Mr. Vikas Pahwa has further stated that the

learned Trial Court erred while appreciating the evidence on record, as

it has overlooked and ignored vital ingredients as well as the evidence

squarely pointing towards the involvement of the accused persons in

the crime, like rejecting the identification of the three slain terrorist by

accused Hamid Hussain and Mohd. Shariq vide Ex. PW-29/D, Ex. PW-

29/C, thus giving the benefit of doubt to Respondent No. 3 to 6; by not

accepting the recoveries made by the police from 17/28 Zakir Nagar

and A-202, Adiba Market at the instance of accused persons, which

were imperative in proving the link between the slain terrorist and the

accused persons; by not accepting the recovery of ATM Card, cheque

book and the blank letter heads of the Standard Chartered Bank

belonging to the accused No. 4; by not accepting the disclosure

statements and recoveries at the instance of respondents No.3 to 6

which formed an entire chain of events establishing the role of each

individual during the course of investigation. Learned counsel has

prayed for leave to appeal with a view to take into consideration these

aspects of the evidence on record and to prove the case of the

prosecution against the respondents.

15. Per contra, learned Counsel for respondent no. 3 has argued that

a prima facie case which is no doubt made out against Md. Iftkhar

Ahsan Malik is to be considered only at the stage of framing of charges

before the trial court. However this is not enough in itself to institute an

appeal against acquittal. Even section 378(3) of the Code of Criminal

Procedure had been amended in 2005 with the purpose of providing an

additional precaution against the admission of appeal against acquittal,

by specifically requiring that such an appeal can be allowed only if the

High Court grants special leave and this leave ought to be granted by

the High Court only if the facts and circumstances are so compelling, or

if the Trial Court has seriously erred in its findings of awarding an

acquittal, that it justifies an interference by the High Court. A reference

in support of this submission was made to the objects and reasons of

the Law Commission Report. In its 48th Report it was reiterated that

proper regard should be had to the need for putting reasonable limits

on the period for which the anxiety and tension of a criminal

prosecution should be allowed to torment the mind of the accused.

There is in fact a qualitative distinction between conviction and

acquittal, and appeals against acquittals should not be allowed in the

same unrestricted manner as appeals against convictions.

16. It has been urged that Learned Public Prosecutor hasn‟t

successfully dealt with the errors in the Trial Court judgment which

deals with every aspect of the evidence on record and consequently

rightly adjudicated that the respondent no. 3 is not guilty of the offence

alleged against him. Learned counsel relied on the judgment of Md.

Ankoos and Ors vs. The Public Prosecutor, High Court of A.P. AIR 2010

SC 566, to expound on the scope of exercise of power by the Appellate

Court against judgment of acquittal under section 378 of Cr.P.C. It has

been held by the Apex Court in a plethora of cases that if two views are

possible, the Appellate Court should not ordinarily interfere with the

judgment of acquittal. The Appellate Court shall not reverse a judgment

of acquittal because another view is possible to be taken.

17. Learned counsel for respondent no. 3 stated that on 5th March,

2005 two individuals had met each other, conspired and then there was

exchange of RDX which has been believed by the Trial Court, which is

why respondents no. 1 and 2 were convicted. However it is imperative to

note that under no circumstances was Iftkhar/respondents no. 3

mentioned in the disclosure statement of the accused persons nor any

link established between respondent no.3 and the 3 men killed in the

encounter at Uttam Nagar.

18. Respondents No. 1 and 2 were examined in the police station and

they had identified respondent no. 3 however this fact is undoubtedly

hit by section 162 of the Code of Criminal Procedure as no valid

identification was made. Reliance was placed on Ramkishan v. State of

Bombay, AIR 1955 SC 104 which categorically states that statements

made by the identifiers to a police officer in the course of investigation

comes within the embargo of Section 162. The physical fact of

identification has thus no separate existence apart from the statement

involved in the very process of identification and insofar as a police

officer seeks to prove the fact of such identification such evidence of his

would attract the operation of Section 162 and would be inadmissible in

evidence.

19. Reliance has also been placed on the case of State through

Superintendent of Police, CBI/SIT v. Nalini and Ors. (1999) 5 SCC 253

para 692 wherein it was held that it was true that section 21 of the

Indian Evidence Act declares that admission is relevant and permits its

proof against the person who makes it. Even when confession which are

species of admissions are not hit by sections 24, 25 or 26 and are

relevant or when they became relevant under Sections 27, 28 and 29,

they can only be proved against the maker thereof. There is no provision

in the Evidence Act for making confession of an accused relevant or

admissible against the co-accused.

20. Relying on the judgment of the trial court, learned counsel for

respondent no. 3 contended that the trial court has taken account of

every circumstance put against Iftakar and consequently held that the

prosecution has failed to prove its case against him. His involvement in

the alleged conspiracy was not proved beyond reasonable doubt due to

inconsistencies in the evidence on record such as the recovery of the

invitation card of the passing out parade of IMA, Dehradun Ex P-16/D

from the room of Iftakar was of an event that had already taken place

and hence was not of much value. Also with respect to the hand written

slip P-13 seized vide memo Ex. PW 20/c containing the instructions

given to him by the slain militants was placed in an envelope with the

seal of "BD" but memo Ex. PW 20/C indicates that it was seal of "SD".

The witness PW 20 explained that the seal of „SD‟ stood for Inspector

Sanjay Dutt and seal of „BD‟ stands for inspector Badrish Dutt.

However, it is in evidence that PW19, Badrish Dutt and PW 29 Sanjay

Dutt did not visit Dehradun. In support of this submission learned

counsel cited the case of Ram Saran @ Kale v. State, 1992 JCC 447 in

which the court observed that a seal containing initials of a police

officer who was neither a member of the raiding team nor present at the

spot, prima facie makes the genuineness of the search and seizure

doubtful. Similar references have been made in the following cases of

Sate v. Sant Kumar, 2003 II AD (Delhi) 341, and Hawa Singh v. State

(Delhi Administration) 50 (1993) DLT 605. Besides this PW20/C refers

to a slip in Hindi whereas P-13 is in English and no explanation for the

same was offered on this count, and admittedly as per the deposition of

PW 25 the documents were received by the CFSL in an open condition.

In view of all these facts the trial court could not have taken any other

view than the one adopted by it.

21. Learned counsel for the respondents No.1, 2 and 4-6 has

contended that the prosecution has not been successful in proving its

case against the respondents. Learned counsel emphatically argued

that even though the respondents Hamid Hussain and Mohd. Shariq

were arrested in Mukarba Chowk and recoveries of a polythene sack

containing 22 cardboard boxes constituting black coloured RDX

weighing a total of 10.56 Kg was effected, however further ammunitions

and weapons were recovered from the House no. JB6/199 Welcome,

Delhi and from a park in front of Masjid, Welcome, Delhi. However the

judgment of the Trial court states the contrary in para 36, wherein it is

clarified that as per the deposition PW 17, Inspector Rajinder Sehrawat

and PW 29 Inspector Sanjay Dutt, after the encounter, the hide out of

the slain militants was searched and 95 Kg. of galatine sticks which

were kept in three boxes, 450 electric detonators besides arms and

ammunitions etc. were recovered and seized by PW 21 the then ACP

Omvir Singh which were a subject matter of FIR no. 190/05 registered

at P.S. Uttam Nagar. In the depositions of all the three witnesses PW

17, PW 29 and PW 21 there is not even a mention of such a recovery

being made. Thus the observation of the trial Court is not in

consonance with the evidence on record. Also with regard to this

observation no FIR, no Seizure memo, and no recoveries were proved in

court.

22. The learned counsel also contended that the FIR no. 40/2005

shows that the information was received on 5th March 2005 at about

9:30 pm, however the case property was deposited at around 8:30 pm

which clearly shows that the respondents No.1 and 2 have been falsely

implicated in the case. Counsel relied on the deposition of PW-2 ASI

Paramjeet Singh which categorically states that on 5th March 2005,

ACP Sh. Rajbir Singh deposited the articles of personal search against

the two accused persons, namely Mohd. Shariq and Hamid Hussain.

However this is contrary to the prosecution case according to which

ACP wasn‟t present on the 5th March and therefore returned only on the

6th of March 2005 because of which he couldn‟t be a part of the

encounter that took place in Uttam Nagar. Counsel further contended

that the accused persons 1 and 2 were arrested on 4th February, 2005,

illegally detained and falsely implicated in the present case. In support

of his submission he relied on the depositions of DW-1 and DW-3. DW-

1 Sh. Rashid Ahmed, father of Hamid Ahmed had deposed that on 4th

February 2005 he noticed that his son was missing and made a

complaint about the same with the PS Seelampur vide DD NO. 15A

dated 11th February 2005. Also DW-3 who was in custody of the

Special Cell had deposed that he had seen accused Shariq in the lock

up from 25th February - 7th March 2005.

23. During the course of the arguments learned counsel, however,

agreed that the case was a fit case for grant of leave against

respondents No.1 and 2, as an appeal by the two respondents is also

pending.

24. However learned counsel argued that the prosecution has

completely failed to prove its case against the other co-accused and that

the trial court has rightly acquitted them while considering every

evidence put by the prosecution against them.

25. This Court has gone through the judgment of the court below, as

well as perused the lower court records and the evidence contained

therein. We however find force in the arguments advanced by Mr. Vikas

Pahwa, Additional Standing Counsel, especially in light of the serious

allegations made by the prosecution against the respondents.

26. Rejection of the recovery of the IMA passes from the room of

respondent no.3 by the trial court stating that there was no purpose in

taking passes of an event that had already occurred is an assumption

which is not sustainable in the facts and circumstances as it was not

the case of the prosecution that the attack was planned for the day of

passing out parade. Perusal of the passes clearly shows the detailed

picture of the IMA on those passes. In these circumstances the fact that

the passes were for an old event will not be material and will not

exculpate the respondents. In view of the instructions received in the

slip, P-13 directing Iftakar to collect details of the topography of IMA

Dehradun and collecting information regarding routine programme of

the Academy and to identify possible hide outs, it does not reflect no

purpose in getting the passes having the photographs of IMA on it. This

evidence has not been considered appropriately and has been rejected

on its own surmise by the Trial Court and requires consideration in

view of the submission made on behalf of the petitioner.

27. It has been observed in Ghurey Lal v. State of Uttar Pradesh,

(2008) 10 SCC 450 by the Apex Court that the appellate court can

review the evidence in appeals against acquittal under Sections 378 and

386 of the Criminal Procedure Code, 1973. While reviewing, the

Appellate Court can re-appreciate the entire evidence on record in order

to ascertain the correctness of the trial court‟s conclusion with respect

to both facts and law. However, in order to interfere with the order of

acquittal of the Trial Court, there must also be substantial and

compelling reasons for holding that the trial Court was wrong. "Very

substantial and compelling reasons" exist when:

(i) The trial court‟s conclusion with regard to the facts is palpably wrong;

(ii) The trial court‟s decision is based on an erroneous view of law;

(iii) The trial court‟s judgment is likely to result in "grave miscarriage of justice";

(iv)The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court‟s judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc. This list is intended to be illustrative, and not exhaustive.

28. Reliance can also be placed on the following cases: State of

Maharashtra v. Sujay Mangesh Poyarekar, (2008) 9 SCC 475, State of

HP v. Manoj Kumar @ Chottu (2008) 1 SCC 654, State of Rajasthan v.

Sohan Lal & Anr. (2004) 5 SCC 573 and State of Orissa v. Dhaniram

Luhar, (2004) 5 SCC 568. In deciding the question whether requisite

leave should or should not be granted, the Court has to apply its mind,

to consider whether a prima facie case has been made out or arguable

points have been raised and not whether the order of acquittal would or

would not be set aside. Even though, each and every petition seeking

leave to prefer an appeal against an order of acquittal recorded by a trial

court need not be allowed by the appellate court nor every appeal be

admitted and decided on merits, it cannot be accepted that at the stage

of granting leave, the court would enter into minute details of the

prosecution evidence and refuse leave observing that the judgment of

acquittal recorded by the trial court could not be said to be "perverse"

and, hence, no leave should be granted. If arguable points have been

raised, and if the material on record discloses deeper scrutiny and re-

appreciation, review or reconsideration of evidence, the appellate Court

is required to grant leave as sought and decide the appeal on merits.

The fact that the entertaining of an appeal at the instance of the State

against an order of acquittal for an effective consideration of the same

on merits is made subject to the preliminary exercise of obtaining of

leave to appeal from the High Court, is no reason to consider it as an

appeal of any inferior quality or grade, when it has been specifically and

statutorily provided for.

29. This cannot be disputed that in order to establish a charge of

conspiracy knowledge about indulgence in either an illegal act or a legal

act by illegal means is necessary. In some cases, intent of unlawful use

being made of the goods or services in question may be inferred from

the knowledge itself. This apart, the prosecution has not to establish

that a particular unlawful use was intended, so long as the goods or

service in question could not be put to any lawful use. Finally, when the

ultimate offence consists of a chain of actions, it would not be necessary

for the prosecution to establish, to bring home the charge of conspiracy,

that each of the conspirators had the knowledge of what the

collaborator would do, so long as it is known that the collaborator

would put the goods or service to an unlawful use. In Jayendra

Saraswati Swamingal Vs State of Tamil Nadu, AIR 2005 SC 716 the

Supreme Court had held that if prima facie evidence of existence of a

conspiracy is given and accepted, the evidence of acts and statements

made by anyone of the conspirators in furtherance of common object is

admissible against all.

30. The Learned counsel for the appellant had given the sequence of

events that implies the inculpation of the accused persons. Both

accused persons, respondents no. 1 and 2 were arrested From Mukarba

Chowk and recoveries of RDX explosives were effected. Both the

accused persons, Hamid Hussain and Mohd. Shariq were interrogated

on arrest and they divulged that they were working for LeT and the

consignment of RDX was brought from Jammu and Kashmir to be

delivered to another LeT activist Shams @ Parvez Ahmed Khusro

residing in Uttam Nagar along with two Pakistani LeT Fidayin. On

intense interrogation the two accused, revealed that they had collected

the three AK 56 rifles with magazines and large rounds of grenades,

dynamites and detonators which were lying at the safe house at Suraj

Vihar, Uttam Nagar, Delhi where Shams @Parvez and the two Pakistani

based LeT Terrorist Bilawal and Shahnawaj were hiding and they also

revealed that the Fidayeen were planning to conduct an attack on the

Indian Military Academy (IMA) Dehradun, Uttranchal. Pursuant to the

said information the police made all efforts to apprehend the three

terrorist, however, an encounter took place at Suraj Vihar, Uttam

Nagar, Delhi and the three militants were killed.

31. Learned counsel for the state has argued that the Trial court has

accepted the first recovery that was made at Mukarba Chowk from

Mohd Shariq and Hamid Hussain constituting a bag which contained a

black plastic sack of polythene, holding 22 cardboard packets of RDX

explosives. It is on the basis of the said recovery that accused 1 and 2

were convicted by the Trial Court under Section 5 of Explosive

Substances Act r/w 120B of IPC and Section 18 r/w 23 of the Unlawful

Activities (P) Act 2004 r/w 120B IPC. Learned counsel, has further

contended that the Trial Court has also accepted the disclosure

statements of accused no 1 and 2, which consequently led to the

encounter at Uttam Nagar and the death of the three terrorist. In turn

this encounter too is believed by the Trial Court. However, the Trial

Court disbelieved the prosecution regarding the allegations of

conspiracy planned against the IMA by the Fidayeen. The Trial court

also disbelieved the allegations of waging a war and preparation of

terrorist activities pursuant to it, and the recoveries made from

respondents No.4 & 5, that of a hand grenade and one Chinese pistol

respectively. The learned counsel contends that the Trial court gravely

erred in doing so as the same disclosure statement cannot be believed

for one purpose and be discarded on other grounds.

32. The counsel for the respondents has emphasized on the fact that

the prosecution has failed to establish any contact between the co-

accused persons and hence has ultimately failed to prove the offence of

conspiracy. It was further submitted that the trial court too had

accepted this stating that since no evidence of the concrete nature had

been found either in the form of mobile or telephone records, or any

independent witnesses or any independent corroborative material, by

placing sole reliance on the disclosure statements of accused Mohd.

Shariq and Hamid Hussain vide memo Ex. PW 29/C and PW 29/D

conspiracy cannot be established.

33. However, per contra the learned counsel for the State has

contended that the prosecution does not need to prove any

communication between the co-accused persons in order to prove

conspiracy. As per the case of the prosecution the main accused

heading the operation was clearly accused Hamid Hussain and he is the

one who assigned the roles to be played by the other co-accused

persons. Learned counsel emphasized on the point that incase of

conspiracy direct evidence cannot be expected and what must be proved

must be on the basis of circumstantial evidence. He placed reliance on

Yash Pal Mittal v. State of Punjab, 1977 (4) SCC 540 which expounded

`conspiracy‟ in following manner:

"The offence of criminal conspiracy under Section 120A is a distinct offence introduced for the first time in 1913 in Chapter VA of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common

goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences, may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy."

34. The learned counsel has urged that the attack on the IMA was the

common goal of all the conspirators. This fact came out first in the

disclosure statements recorded on 6th March 2005, which was further

corroborated by the recovery of the passes of passing out parade at IMA.

Two of these passes were recovered from the house of the slain terrorist

itself, while one was in the possession of respondent no. 3, and it is

from the diary of one of the slain militants recovered at the hide out

that the name of accused Iftkhar Ahsan Malik was found, which as

contended by the learned counsel clearly establishes a nexus. This fact

is further substantiated and corroborated by the deposition of PW-15

who stated that respondent no. 3 came to the room of PW-15 and

picked up the passes after enquiring if they were of any utility to him.

These passes were given to PW-15 to attend the passing out parade at

IMA on 9th December 2004 at Dehradun. Learned counsel has

submitted that there was no need for respondent no. 3 to have known

the other respondents, as his job was clearly to collect any information

regarding the IMA. Hence, his role in the conspiracy stands established,

therefore the trial court has erred in treating the recovery of the IMA

passes in such a casual and dismissive manner.

35. The learned counsel further contended that infirmities regarding

the seal and slip cannot be enough to vitiate the trial. As clarified by the

counsel, seal used in a case is only one and hence whether or not the

said officer is present at the time of recovery, his seal may be used in

the course of investigation. The fact that the recoveries were affected

has been corroborated by the deposition of PW-20 SI Ramesh Lamba

who was present at Dehradun at the time of recovery and in the

circumstances the recoveries could not be disbelieved taking into

consideration the entire evidence.

36. The learned counsel for the State has also opposed the arguments

of learned counsel for the respondents No.1,2, and 4-6, who had urged

that the entire incident at the Mukarba Chowk was staged as the

accused persons were already in unlawful detention of the Special Cell.

In support of his submission learned counsel for the respondent has

relied on the missing reports and the deposition of DW3. However the

learned counsel for the state contends that this issue has been rightly

adjudicated by the trial court itself, which has rejected the plea stating

that it was highly unlikely that the accused persons indulging in

clandestine terrorist activities, would inform the members of their

families about their whereabouts and that the evidence of DW3 was

probably in light of some grouse against the police and hence out of

misplaced sympathy on the side of his brethren. Hence this plea of the

respondent does not hold much water in light of the facts and

circumstances.

37. Learned counsel has further contended that the name of accused

Haroon Rashid came into light while effecting search of the

accommodation of slain terrorist Shams at house no. 17/18 Zakir

Nagar on 6th March 2005 and by memo Ex. PW8/10, ATM card and

cheque book with some blank papers of Standard Chartered bank in his

name were recovered. Upon the arrest of the accused 10000 Singapore

dollars was also recovered from his house. His e-mail accounts were

opened and various print outs were taken out of which one e-mail

Exhibit PW26/40 is a mail written by the accused to his mentor,

explaining how to make a call on his mobile without the same being

traced. The accused person in his statement under Section 313 has

accepted that these e-mail accounts belonged to him. Accused Hamid

Hussain in his 2nd disclosure statement Ex. PW 19/G referred to

collection of Rs. 49,000/- on two occasions sometime around 20th

January 2005 by the slain terrorist Shams through one Yunis Raja

which funds were sent from Singapore by one Farooq. And it is in the

third disclosure statement Ex. PW 19/J that accused Hamid Hussain

allegedly informed the police that Farooq was a code name and the real

name of the LeT activist was Haroon Rashid who was funding the

terrorist activities. This aspect is corroborated by the admission of the

accused Haroon to the extent that Rs 49,000 was remitted by the

accused through the Western Union Transfer on 10th January 2005

and 15th January 2005 and was collected by his brother Yunis.

However it is denied that this amount was given to the terrorist Shams

under his directions. Inspite of the denial the learned counsel contends

that on the basis of the recoveries of the cheque book and ATM card in

the house of the slain terrorist the role of accused Haroon as the

financer in the conspiracy also stands established which was wrongly

rejected by the Trial Court.

38. The learned counsel also urged that since the Trial Court has

believed the disclosure statement of accused 1 and 2 for one purpose it

cannot be discarded for the arrest of respondent no. 4 and 5, who were

arrested on the pointing out of accused 1 and 2 and from whom a hand

grenade and Chinese pistol was recovered. Intent of unlawful use can

be made on account of possession of unlawful weapons by these

respondents. Prosecution has not to establish that a particular unlawful

use was intended, so long as the hand grenade and Chinese pistol could

not be put to any lawful use. The Trial Court in the circumstances has

misread the material evidence and the conclusions are palpably wrong

and its order/judgment is manifestly unjust and unreasonable.

39. Some minute details of some of the facts have also been raised by

the counsel for respondent no. 3 however, this court is not required to

go into very minute details in order to consider and infer whether

arguable points have been raised by the petitioner or not and whether

the petitioner has been able to make out a prime facie case or not. In

the circumstances the inevitable inference is that arguable points are

involved which require deeper scrutiny and re-appreciation of the record

and the evidence. The petitioner has been able to make out a prima

facie case for re-appreciation of entire evidence and it will be just and

equitable and in the interest of justice to grant leave to the petitioner.

40. In the circumstances leave to appeal is granted to the petitioner

against the judgment dated 8th January, 2010 passed by the Additional

Sessions Judge-II, New Delhi in S.C. No. 178/2005 titled „State vs.

Hamid Hussain & Ors.‟ arising from FIR No. 40/2005, PS Special Cell,

under Section 121/121-A/122/123 & 120B IPC and under Section 4/5

of Explosive Substance Act and Sections 18/19/20/23 of Unlawful

Activities (P) Amendment Act and also in FIR no. 132/2004, PS Special

Cell under Section 379/411 of IPC. The registry is directed to register

the above noted petition as Criminal Appeal.

41. Respondents No. 3 to 6 are directed to execute personal bonds in

the sum of Rs.50,000/- each with one surety each to the satisfaction of

the Trial Court within a period of four weeks. The Criminal Appeal be

listed before the Regular Bench on 25th March, 2011.

ANIL KUMAR J.

February 11, 2011. S.L.BHAYANA J.