Delhi High Court
Shamiullah Sheikh @ Sam @ Jeedar & ... vs State on 1 April, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : April 01, 2014
+ CRL.A.205/2011
SHAMIULLAH SHEIKH @ SAM @ JEEDAR & ANR.
..... Appellants
Through : Mr.Shakeel Sarwan Wani, Advocate.
versus
STATE
..... Respondent
Through : Mr.Lovkesh Sawhney, APP for the
State.
Insp.Rajendra Singh, Special Cell.
CORAM:
MR. JUSTICE S.P.GARG
S.P.GARG, J. (ORAL)
1. Shamillah Sheikh @ Sam @ Jeedar (A-1) and Mohd.Sheikh
(A-2) impugn a judgment dated 09.11.2010 of learned Additional
Sessions Judge/II/North, Delhi, in Sessions Case No.47/2010 arising out
of FIR No.01/07 registered at Police Station Special Cell by which they
were convicted under Section 4/5 Explosive Substances Act 1908 read
with Section 18 and 23 of Unlawful Activities (Prevention) Act 1957 and
Section 120B IPC. By an order dated 10.11.2011, they were sentenced to
undergo RI for ten years with fine `25,000/- each under Sections 4/5
Explosive Substances Act; RI for ten years with fine `50,000/- each under
Section 18/23 of Unlawful Activities (Prevention) Act 1957; and RI for
five years under Section 120B IPC. The sentences were to operate
concurrently.
2. The prosecution case, as revealed in the charge-sheet, was
that on 31.12.06 at about 12.10 p.m. SI R.S.Shehrawat (PW-8) received a
specific information on phone from a secret informer that two terrorists
affiliated to LeT would arrive at Delhi from Jammu and Kashmir by
Andaman Express and were in possession of explosives concealed inside
cavities of toys. The information was reduced into writing and DD No.5
was recorded at 12.10 a.m. A raiding party was organized and at about
05.30 p.m., the appellants alighted from the train and were apprehended.
On checking their bags, one plastic black colour polythene containing a
toy pack and another toy pack were recovered beside personal belongings
and four pencil cells. Deepak (PW-6) and Rattan Singh, residents of
Pahar Ganj, were associated as witnesses. On checking the contents, it
was found to contain explosive material weighing 1230 gms and one
electronic detonator. Another bag contained explosive material with
electronic detonator weighing 1120 gms. Statements of witnesses
conversant with the facts were recorded. The exhibits were sent for
examination. After completion of investigation, a charge-sheet was
submitted in the court against the appellants for committing offences
under Sections 121/121A/122/123 and 120 B IPC; 4/5 Explosive
Substances Act; and 18/23 Unlawful Activities (Prevention) Act 1957.
The prosecution examined 13 witnesses to establish appellants' guilt. In
313 statements, the appellants pleaded false implication and denied their
complicity in the crime. They examined DW-1 (Mohd.Iqbal Jal) and
DW-2 (Mohd.Ameen Hazam) in defence. The trial resulted in their
conviction under Section 120B IPC; 4/5 Explosives Substances Act read
with 18/23 Unlawful Activities (Prevention) Act 1957. It is pertinent to
note that the appellants were acquitted of the charges under Sections
121/121A/122/123 IPC and 20 Unlawful Activities (Prevention) Act
1957. The State did not file any appeal against their acquittal under those
offences.
3. During the hearing of the appeal, appellants' counsel, on
instructions stated at the Bar that the appellants have opted not to
challenge the findings of the trial court on conviction and accept it
voluntarily. He, however, prayed to modify the sentence order as the
appellants are first offenders and are not involved in any other criminal
activity. They have remained in custody for about more than seven years.
They are very poor and are unable to pay the fine imposed by the trial
court. Learned APP has no objection to consider the mitigating
circumstances.
4. Since the appellants have given up challenge to the findings
recorded on conviction and there is ample evidence on record in the form
of statements of witnesses who apprehended them coupled with huge
recovery of explosives, their conviction as recorded by the trial court is
affirmed. A-1's nominal roll dated 26.03.2014 reveals that he has
suffered incarceration for seven years, two months and twenty four days
besides remission for two months and twenty eight days. His overall jail
conduct is satisfactory. He was shifted from Central Jail No.1, Tihar,
New Delhi for appearing in examination. A-2's nominal roll dated
26.03.2014 reveals that he also remained in custody for seven years, two
months and twenty four days besides remission for six months and twenty
six days. His jail conduct was satisfactory. He too was shifted from
Central Jail No.1, Tihar, New Delhi for appearing in examination. By an
order dated 26.02.2014, State was directed to file status report regarding
the antecedents of the appellants. The additional status report on record
reveals that both the appellants are not involved in any other criminal case
either in Delhi or Jammu and Kashmir. Sentence order dated 10.11.2010
reveals that A-1 was aged about 23 years and A-2 was aged about 38
years and both belonged to a family living below poverty line. A-1 and
A-2 are real brothers and their father was killed in some terrorist activities
as he did not assist the terrorists in their nefarious designs. Their mother
is 65 years of age and is suffering from old age ailments. Considering all
these mitigating circumstances and the fact that the appellants were
acquitted of the grave charges under Sections 121/121A/122/123 IPC and
20 Unlawful Activities (Prevention) Act 1957, their substantive sentence
of RI for ten years each is reduced to RI for eight years each. The
appellants have volunteered to deposit `50,000/- each as fine. The
Investigating Officer has revealed that the appellants belong to poor strata
of society and are not economically sound to deposit the fine `1,50,000/-
each imposed by the trial court. Considering these circumstances, the fine
amount is reduced to `50,000/- in all for each of the appellants and default
sentence for non-payment of fine would be SI for three months each.
5. The appeal stand disposed of in the above terms. Trial Court
record be sent back forthwith along with the copy of this order. Copy of
the order be sent to Superintendent Jail for information.
(S.P.GARG)
JUDGE
April 01, 2014/sa
