Mushtaq Ahmed Wani @ Nazeer vs State
2013 Latest Caselaw 1443 Del

$-28
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     DECIDED ON : 22nd MARCH, 2013

+                           CRL.A. 869/2010

       MUSHTAQ AHMED WANI @ NAZEER                        ..... Appellant

                            Through :   Mr. Vishal Gosain, Advocate with
                                        Mr.Harsh Bera, Advocate.


                            versus

       STATE                                              ..... Respondent

Through : Ms.Fizani Husain, APP.

SI Dalip Kumar, PS Spl.Cell.

CORAM:

HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. The appellant- Mushtaq Ahmed Wani @ Nazeer challenges

judgment dated 12.04.2010 in Sessions Case No.09/2007 arising out of

FIR No.91/2006 registered at PS Special Cell by which he was held guilty

and convicted for offences punishable under Section 20/21 of Unlawful

Activities (Prevention) Act and sentenced to undergo RI for seven years

with fine ` 25,000/- and RI for eight years with fine ` 25,000/- under both

the Sections respectively. Benefit under Section 428 Cr.P.C. was

extended.

2. Allegations against the appellant were that on 25.11.2006 at

about 06.15 P.M. at bus stop near Ramlila Ground, Netaji Subhash Marg,

opposite Lal Quila, he was found in possession of a black colour shoulder

bag. On search of the bag Indian currency in the denomination of ` 500 in

12 wads amounting to ` 6 lacs was recovered. During investigation, it

revealed that the appellant was a Constable bearing No.Exe 021778778 in

Jammu & Kashmir Police. The appellant was not able to account for the

money recovered from his possession. It was discovered that he was an

active member of banned militant outfit LeT and the cash was collected

through Hawal operative at Kabootar Market opposite Lal Quila. He was

also found in possession of mobile bearing No.9999239734, ID card and

one matrix. He was charged under Sections 7/18/20/21 of the Act. The

prosecution examined twenty nine witnesses to substantiate the charges.

In his 313 Cr.P.C. statement, the accused pleaded false implication. He

examined one witness in defence. On appreciating the evidence and

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment, convicted the appellant under Section 20/21 of the

Act only. Being aggrieved the appellant has preferred the appeal.

3. During the course of arguments, learned counsel for the

appellant on instructions from the appellant- Mushtaq Ahmed Wani @

Nazeer stated that the appellant has opted not to challenge the conviction

under Section 20/21 of the Act. He however, prayed for reduction of the

sentence from eight years to seven years as the appellant is not a previous

convict and is not involved in any other criminal case. Learned APP has

opposed reduction in sentence.

4. I have considered the submissions of the parties and have

examined the Trial Court record. Since the appellant has not opted to

challenge the findings of the Trial Court on conviction under Section

20/21 of the Act, the order of conviction of the Trial Court stands

affirmed.

5. Regarding order on sentence, it reveals that the appellant has

been sentenced to undergo RI for seven years with fine ` 25,000/- under

Section 20 of the Act and RI for eight years with fine ` 25,000/- under

Section 21 of the Act. Counsel for the appellant has volunteered to deposit

the fine imposed by the Trial Court. Nominal roll dated 05.07.2012

reveals that the appellant has already undergone sentence for five years

and seven months as on 05.07.2012. He also earned remission for six

months. The period has since increased and only few months remain as

unexpired portion of substantive sentence. Nominal roll further reveals

that appellant is not a previous convict and is not involved in any other

criminal case. There were two complaint cases against the appellant in

J&K and it is stated that he has been acquitted in the said cases.

6. Considering all these facts and circumstances of the case and

that the substantial period of sentence is already undergone by him, and

the fact that he is not a previous convict and is not involved in any other

criminal case, order on sentence is modified and sentence RI for eight

years under Section 21 of the Act is reduced to seven years. Other terms

and conditions of the order of sentence dated 19.04.2010 left undisturbed.

7. The appeal stands disposed of in the above terms. Trial Court

record (if any) be sent back forthwith.

CRL.M.B.1028/2010

Application stands disposed of as being infructuous.

(S.P.GARG) JUDGE

MARCH 22, 2013 tr