Delhi High Court
Aijaz Hussain Khwaja vs State Of Delhi on 9 February, 2012
Author: Suresh Kait
$~01
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.No.1018/2009 & Crl.M.B.No.98/2012
% Judgment delivered on:09th February, 2012
AIJAZ HUSSAIN KHWAJA ..... Appellant
Through: Mr.R.K.Thakur & Ms.Ritu
Negi, Advs.
versus
STATE OF DELHI ..... Respondent
Through: Mr.Navin Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
Crl.M.B.No.98/2012
In view of expediting and hearing of appeal today itself,
dismissed as not-pressed.
+ CRL.A.No.1018/2009
1. With the consent of learned counsel for parties, matter taken up
for disposal.
2. Vide instant appeal, the appellant has challenged the impugned
judgment dated 25.05.2009 whereby he was held guilty and vide order
on sentence dated 26.05.2009 he was sentenced to undergo rigorous
imprisonment for a period of seven years for offence under Section
5(b) of Explosive Substances Act, 1908 and also fine of ` 50,000/- in
default thereof to undergo RI for a period of six months. Further, he
was sentenced to rigorous imprisonment for seven years under Section
23 of the Unlawful Activities (Prevention) Act, 1967 with fine of
` 50,000/- in default thereof to undergo RI for a period of six months.
Benefit of Section 428 Cr. P.C. has also been extended to him.
3. As regard to the amount of ` 49.00 Lacs which was recovered at
the time of raid, the possession of such money alongwith 'Special
Category Explosive Substance' lead to a strong inference that the
money was meant for some terrorist act and, therefore, as per Section
33 of Unlawful Activities (Prevention ) Act, 1967 it directed that said
cash amount was to be forfeited to State.
4. Learned counsel for appellant on instructions, submitted that
though the appellant has challenged the impugned judgment whereby
he was convicted and order on sentence mentioned above, however, he
is not disputing the judgment and prayed for a lenient view.
5. He further submitted that appellant is having two minor sons
aged 14 & 16 years, with ailing father aged 86 years and mother of
appellant has already expired. Therefore, there is no one in the family
to look after two youth of the family. Further, less than one year is
remained out of the total sentence awarded to him.
6. Learned counsel for appellant further submitted that appellant is
ready to deposit entire fine amount as ordered by learned Trial Court.
7. He further submitted that appellant has no previous conviction in
his credit and never involved in any criminal case except present one.
It has been clarified that a case under Section 488 Cr. P.C. at Srinagar,
Jammu & Kashmir filed by wife of appellant for maintenance (for
Indian territory under Section 125 Cr. P.C. ) has also been withdrawn
by her on 24.01.2012.
8. To sum up, learned counsel for appellant submitted that
considering the facts and circumstances of the case, sentence order be
modified to the extent already undergone.
9. On the other hand, Mr.Navin Sharma, learned APP opposed the
contention of learned counsel for appellant and submitted that
appellant has been convicted for a heinous crime and involved in
Hawala racket and RDX was also recovered from him which linked to
terrorist activities and a menace to the society. The appellant deserves
no leniency on the point of sentence.
10. I note that as per nominal roll dated 20.01.2012, the total
sentence undergone is 05 years, 05 months and 26 days. Therefore,
unexpired period of sentence is around 10 months (IFP).
11. There is no minimum sentence prescribed for the offence under
Section 5(b) of Explosive Substances Act, 1908. However, there is
five years minimum sentence prescribed for the offence under Section
23 of the Unlawful Activities (Prevention) Act, 1967. But, since the
appellant has already spent more than five years in custody, there is no
embargo for the latter section regarding minimum sentence.
12. There is a family to be supported by appellant. He has served
substantial period of sentence awarded to him and he is ready to
deposit the fine amount.
13. In view of above, while maintain the conviction, in the facts and
circumstances of the case, the order on sentence dated 26.05.2009 is
modified to the extent already undergone with the condition that total
fine amount of ` 1,00,000/- shall be deposited with learned Trial Court
within three days.
14. Consequently, Criminal Appeal No.1018/2009 is partially
allowed and stands disposed of.
15. Subject to deposition of fine amount with learned Trial Court,
appellant be set at liberty, if not warranted in any other case.
16. Copy of order be sent to Jail Superintendent, for compliance.
17. Trial Court Record be remitted forthwith.
18. Dasti.
SURESH KAIT, J
FEBRUARY 09, 2012
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