Delhi High Court
Mohd. Ameen Wani Alias Khalid And ... vs State on 1 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th September, 2014
% Date of Decision: 1st October, 2014
+ Crl. Appeal 903/2010
Mohd. Ameen Wani alias Khalid and Anr. ....Appellant
Through Mr. Ashok Aggarwal, Advocate with
Ms. Sridevi Panikkar and Mr. Anuj
Kapoor, Advocates.
Versus
State ...Respondent
Through Mr. Sidharth Luthra, Sr. Advocate with
Mr. Rajiv Mohan, APP,
Ms. Rajdipa Behura, APP,
Mr. S. Thareja, Advocate with
Mr. Subhash Vats, Delhi Police Spl. Cell
Crl.A. No. 1430/2010
Luthfur Rahman alias Haroon ...Appellant
Through Mr. Vivek Sood, Mr. Prem Prakash,
Ms. Janvahi Mahana and
Mr. Jaydeep Tandon, Advocates.
Versus
State (Govt. of NCT of Delhi) ...Respondent
Through Mr. Sidharth Luthra, Sr. Advocate with
Mr. Rajiv Mohan, APP,
Ms. Rajdipa Behura, APP,
Mr. S. Thareja, Advocate with
Mr. Subhash Vats, Delhi Police Spl. Cell
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE G.P. MITTAL
SANJIV KHANNA, J.
By the impugned judgment dated 16th February, 2010, Mohd.
Ameen Wani and Luthfur Rahman stand convicted in the chargesheet
arising out of FIR No.2/2007, P.S. Special Cell, Lodhi Road. They
have been sentenced to undergo imprisonment and fine by order dated
10th March, 2010, for the following offences:
Mohd. Ameen Wani alias Khalid
Section Act Punishment Fine
121A Indian Penal Code, R.I. for life Rs.1,00,000/-
read with 120B 1860
121 Indian Penal Code, R.I. for life Rs.1,00,000/-
read with 120B 1860
122 Indian Penal Code, R.I. for life Rs.1,00,000/-
read with 120B 1860
17 Unlawful Activities R.I. for life Rs.1,00,000/-
(Prevention) Act,
18 Unlawful Activities R.I. for life Rs.1,00,000/-
(Prevention) Act,
19 Unlawful Activities R.I. for life Rs.1,00,000/-
(Prevention) Act,
Luthfur Rahman alias Haroon
Section Act Punishment Fine
121A Indian Penal Code, R.I. for life Rs.1,00,000/-
read with 120B 1860
121 Indian Penal Code, R.I. for life Rs.1,00,000/-
read with 120B 1860
122 Indian Penal Code, R.I. for life Rs.1,00,000/-
read with 120B 1860
17 Unlawful Activities R.I. for life Rs.1,00,000/-
(Prevention) Act,
18 Unlawful Activities R.I. for life Rs.1,00,000/-
(Prevention) Act,
19 Unlawful Activities R.I. for life Rs.1,00,000/-
(Prevention) Act,
5 Explosive R.I. for life Rs.1,00,000/-
Substances Act,
14 Foreigners Act, R.I. for 5 Rs.50,000/-
1946 years
In default of payment of fine, the appellants are sentenced to undergo
rigorous imprisonment of a period of 1 year on each count. The
sentences are to run concurrently. In the event of non-realization of
fine also, the sentences are to run concurrently.
2. Luthfur Rahman is a Bangladeshi national and accepts and
does not challenge his conviction and sentence under Section 14 of
the Foreigners Act, 1946.
3. The prosecution case in a nutshell is that the two appellants
were members of the banned terrorist organization Harkat-ul-Jehad-e-
Islami („HUJI‟, for short). Mohd. Ameen Wani was detained near
Adarsh Nagar bus stand at about 2:50 PM on 4th January, 2007 and
was found to be in possession of Rs.4,50,000/- which were seized
vide Memo, Ex.PW1/A. Upon interrogation, his disclosure statement,
Ex.PW2/C was recorded on 4th January, 2007. Acting on the
disclosure statement, Luthfur Rahman was arrested at about 9:15 PM
on the same day, i.e. 4th January, 2007 from outside the Dargah, near
Bawri Gate, Nizamuddin, New Delhi, causing recovery of 1.610 kg of
explosives, two non-electric detonators, a black coloured timing
device and four pencil cells seized vide seizure memo Ex.PW2/D.
4. The prosecution alleges that the explosive material was
Pantaerythritol Tetranitrate, commonly known as PETN, a high grade
explosive belonging to the Nitrate ester class of organic compounds.
5. Before the trial court, one sample marked „S1‟ of 10 gm PETN
was produced, and the balance quantity i.e. the case property
weighing 1.590 kg PETN and another 10 gm sample of PETN „S2‟, it
was claimed was destroyed in a fire on 10th February, 2007 in the
malkhana room of Police Station, Special Cell, Lodhi Road. Sample
S1, was not destroyed in the fire as it was sent and was with the
Central Forensic Science Laboratory („CFSL‟, for short) for
examination, at the time of fire.
6. As per the CFSL report, Ex. PW9/A, sample S1 contained
small quantity of an off white coloured material in a plastic container
which tested positive for presence of PETN.
7. The contention of the appellants is that the alleged recovery of
1.610 kg of PETN is concocted and the sample S1 planted. As per
seizure memo Ex.PW2/D, 1.610 kg of brown coloured explosive
material was seized. Pertinently, Dalip Kumar (PW8), in his
examination-in-chief as well as cross-examination and the
Investigating Officer ACP Sanjeev Kumar Yadav (PW10), in his
examination in chief had affirmed that the explosive material
recovered was brown in colour. PW10 in his cross-examination in
categorical terms asserted that the explosive was dark brown in
colour.
8. FIR No.13/2007 was registered at P.S. Special Cell, Lodhi
Road under Section 436/427 of the Indian Penal Code, 1860 („IPC‟
for short) regarding the fire in the malkhana room on 10th February,
2007. Relying upon the CFSL report as to the cause of fire, closure
report was filed under Section 173, Cr.P.C. The same was accepted
by the Metropolitan Magistrate and the proceeding arising out of FIR
No.13/2007 was closed. The appellants were conspicuously non-
participants, unaware and oblivious of the said proceedings. The FIR
No.13/2007, the CFSL Report as to the cause of the fire, the closure
report, etc. were not filed and proved in the trial in the present case,
though oral sworn testimonies regarding the fire were made.
9. During the course of arguments before us, discrepancies in DD
Entry No. 14 (Ex.PW10/DA) and DD entry No.15 (Ex.PW10/DB)
recorded at 7.00 PM and 7:30 PM respectively on 4th January, 2007,
were highlighted. Provisions of the Explosive Substances Act, 1908
stand recorded in the aforesaid DD Entry Nos.14 and 15 but as per the
prosecution, the explosive material was recovered only at 9:15 PM on
4th January, 2007, i.e. after recording of the aforesaid DD Entries
earlier in the evening at 7:00 PM and 7:30 PM, respectively.
10. After the counsel for the appellants had argued the appeals,
prosecution filed applications under Section 391 read with Section
311, Cr.P.C. for placing on record, (1) original DD Entry Nos.14 and
15 dated 4th January, 2007, maintained in P.S. Special Cell, Lodhi
Road; (2) FIR No. 13/2007 dated 10th February, 2007, P.S. Special
Cell, under Section 436/427 IPC; and, (3) report under Section 173
Cr.P.C. of FIR No.13/2007. To prove the said documents, prayer for
recording of additional evidence of ASI Paramjit Singh (PW6), ACP
Sanjeev Kumar Yadav (PW10) who had already deposed before the
trial court, and re-examination of expert witness, A. Dey (PW9), was
made.
11. By order dated 26th March, 2014, this Court, partly allowed the
applications permitting the prosecution to lead additional evidence of
ASI Paramjit (PW6), ACP Sanjeev Kumar Yadav (PW10) and to
record statement of ASI Amrik Singh, Duty Officer In-charge of
Roznamcha/Malkhana. The author of the CFSL report in FIR
No.13/2007 was permitted to be examined as a witness. In addition,
the court felt that an expert witness from the Defence Research and
Development Organisation (DRDO), familiar and having knowledge
of PETN should also be called to testify. Request for recall of A. Dey
(PW9) was declined, noticing his earlier statement and the fact that he
was recalled even by the trial court.
12. Thereupon, supplementary statement of ASI Paramjit Singh
(PW6), ACP Sanjeev Kumar Yadav (PW10) and first statement of
Amrik Singh (PW12), the then Malkhana In-charge and Mr. N.B.
Bardhan, Principal Scientific Officer (Ballastics) cum Assistant
Chemical Examiner, Govt. of India, CFSL, New Delhi (PW13) were
recorded. Statement of Dr. Mahadev B. Talawar, Sr. Scientist
(Scientist „E‟), High Energy Materials Research Laboratory
(HEMRL), Pune, was also recorded as Court Witness (CW1).
Supplementary statements under Section 313, Cr.P.C. of the two
appellants were thereafter recorded in the High Court.
13. As per the prosecution case, there was no actual commission of
any act of terrorism or physical violence and there are no public
witnesses to the alleged recovery. The prosecution relies upon the
police witnesses. We record the aforesaid position as a fact and the
narration should not be construed as a reason or ground for the final
opinion expressed by us. Indeed, prosecution can succeed and in
countless cases has secured conviction solely on the testimonies of
police witnesses. We are acquainted with and acknowledge the
practical problem in associating and securing public witnesses,
especially when the case relates to an attempt to cause or perpetrate
terror and violence. Each case has to proceed on its own facts,
evidence and material brought on record without any bias, partiality
and predisposition.
14. With regard to recovery of money, we have virtually identical
depositions of SI Vinay Tyagi (PW1), SI Rajender Sehrawat (PW2),
Dalip Kumar (PW8) and HC Rushtam Ahmed (PW5). They have
spoken in seriatim about apprehension and arrest of Ameen Wani at
about 2:50 PM with the money at Adarsh Nagar bus stand.
Discrepancies pointed out in their statement on certain aspects have
been dealt with below.
15. Similarly, we have testimonies of Rajender Sehrawat (PW2),
Dalip Kumar (PW8) and Sanjeev Kumar Yadav (PW10), on detention
and arrest of Luthfur Rahman from Nizamuddin at 9.15 PM. From
Luthfur Rahman, it is alleged, that the explosive, i.e. PETN weighing
1.610 kg, two detonators, one timing device and four pencil cells
were recovered, vide seizure memo Ex.PW2/D. The question and
issue for deliberation and adjudication is, should the court accept their
testimonies or there are foundational discrepancies and intrinsic
improbabilities negating and falsifying the prosecution version. In
order to examine the contentions raised, we would like to divide them
into three broad categories for clarity and elucidation:
A. Description and colour of the alleged explosive material;
B. Failure to produce the case property and sample S2, and the
alleged story of fire in the malkhana on 10th February, 2007;
and,
C. Other contentions and discrepancies.
(A) DESCRIPTION AND COLOUR OF THE ALLEGED
EXPLOSIVE MATERIAL
16. The seizure memo (Ex.PW2/D), records that an oil based
explosive of brown colour, weighing 1.610 kg, packed in one
transparent locking polythene and kept in black coloured polythene,
which was further concealed in a pink coloured polythene was
recovered from one multi coloured jute hand bag with the words,
„TEN SPORTS DEKHO‟ written thereon on both sides. From the
same jute bag, white edible murmure, gur and rice-chiwda in pink
coloured polythene were also recovered. Two samples of 10 gms each
were drawn and kept in two white small plastic containers which were
then packed in two white cloth pulandas. The said two pulandas were
sealed with the seal of „SKY‟. The remaining brown coloured
explosive material weighing 1.590 kg was packed in one transparent
polythene and kept in the black coloured polythene in which it was
found, and wrapped in a white cloth pulanda and sealed with the seal
of „SKY‟. The seizure memo at two places, specifically mentions that
the seized explosive material was of brown colour and the material
was described as an oil based explosive material.
17. SI Rajender Sehrawat (PW2) had proved the seizure memo
(Ex.PW2/D) but did not depose as to the colour. SI Rajender
Sehrawat (PW2) was witness No.1 to the seizure memo Ex.PW2/D.
SI Dalip Kumar (PW8), the second witness, in his examination-in-
chief deposed that brown coloured explosive material was found
packed in transparent locking polythene and kept in a black coloured
polythene. On weighing it was found to be 1.610 kg. Two samples of
10 gms each were taken out in two small plastic containers and
remaining explosive weighing 1.590 kg was kept in the same
recovered polythene wrapper in a white cloth and pulandas were
prepared. In his cross-examination Dalip Kumar (PW8) again asserted
that the explosive material and the samples were brown in colour.
18. Sanjeev Kumar Yadav, the Investigating Officer (PW10) in his
examination-in-chief deposed the colour of the explosive to be brown
and had affirmed the same in his cross-examination declaring it to be
of dark brown colour. He was confronted that as per the CFSL
Report, sample S1 was off white in colour. As this statement in the
cross-examination is of relevance, the relevant excerpt is reproduced:
"I do not remember if expert from FSL has sought
clarfication before giving the report or DM sought and (sic,
any) clarification from me before grant of sanction. The
explosive recovered was of dark brown colour and nothing
was mixed in the samples taken by me as S-1 and S-1 (sic,
S-2). I had seen the report of the FSL but I do not
remember the about the colour of the explosive which was
mentioned in report. I can not deny nor admit that the
colour of the substance mentioned as (off-white) in the FSL
report."
19. In the earlier portion of the judgment, we have referred to the
CFSL report (Ex.PW9/A) wherein the colour of the sample was
recorded as off white. Author of the report (Ex.PW9/A), A. Dey,
Principal Scientific Officer cum Assistant Chemical Examiner, Govt.
of India, CFSL, CBI, Lodhi Road had deposed as PW9. In his
examination-in-chief, recorded on 20th March, 2009 before the trial
court, PW9 had testified that the parcel S1 contained small quantity
of an off-white coloured putty like material. In his cross-examination,
he accepted that the sample tested by him was of off-white colour.
On a suggestion, PW9 asserted that PETN is a putty like material
generally light yellow in colour. He could not state why the colour of
the sample was off-white. He had voluntarily added in the cross-
examination that litmus paper test was positive for presence of acids
as the paper had turned deep blue in colour. There are many acids
like Sulphuric acid, Hydrochloric acid etc. but PW9 had not
mentioned the type of acids or their names in his report, Ex.PW9/A.
Trial court during the course of hearing final arguments, by order
dated 18th November, 2009, observed that the clarification was
required regarding colour of the substance in view of the report
Ex.PW9/A. Thereafter, application filed by the prosecution under
Section 311, Cr.P.C. was allowed by order dated 23rd January, 2010,
recording that re-examination of A. Dey (PW9) would facilitate the
court in reaching proper and fair conclusion in a case of a very
serious nature.
20. A. Dey (PW9) was recalled for further reexamination on 27th
January, 2010 and he had deposed that there existed a possibility of
change of colour in case PETN was adulterated. Presence of PETN as
well as Ammonium Nitrate and acids in sample S1 was confirmed.
He opined that "due to the chemical reaction as in this case there was
possibility of change of color of substance". In the cross-
examination, PW9 accepted that he could not determine percentage
of PETN, Ammonium Nitrate and other acids, as this was not asked.
The basic colour of PETN was off white and Ammonium Nitrate in
pure form is crystal white and acid is a colourless water like liquid.
He denied the suggestion that if PETN, Ammonium Nitrate and acid
are mixed, the substance would be off white in colour and opined:-
"If ammomium nitrate and acid are mixed with PETN there
is possibility of a change in color. It cannot be said with
certainty that a particular color would come if ammonium
nitrate and acid are mixed with PETN as such a mixing was
not done in the lab. Even as a expert I cannot tell what
color would come if all the above three substances are
mixed until the test is conducted. The PETN, ammonium
nitrate and acid have a chemical reaction if kept in a plastic
jar with plastic but I cannot say with certainty about the
change of color if the explosive is kept in a sealed plastic
jar or a closed space. I have not read the literature or books
or journal regarding the color change of the explosives
regarding this particular case as it was not asked.
xxx
I cannot tell if brown color after reaction with acid can
turned to off white. Vol. said that there may be many colors
which can cause due to reaction. I do not remember that in
how many cases I noticed the change in color or questions
was asked on that point ..."
21. PW9 on 27th January, 2010, had produced the worksheets
comprising of four pages (Ex.PW9/B). The worksheet (Ex.PW9/B)
records in writing that sample S1 contained off white putty like
material in small plastic vial. On chemical examination, it tested
positive for PETN, Ammonium Nitrate and acid. Ex.PW9/B records
that physio-chemical and TLS tests confirmed presence of PETN
based high explosive, Ammonium Nitrate and acid in the contents of
parcel S1. The CFSL report (Ex.PW9/A) records that the parcel S1
contained small quantity of an off white coloured putty like material
in a plastic container.
22. We have elaborately dealt with the testimony of A. Dey (PW9),
who had affirmed that there was presence of PETN, Ammonium
Nitrate as well as acids, but the sample was off white in colour. PW9
has been ambiguous and ambivalent on whether the colour could have
changed. He had not conducted any experiment to ascertain whether
the colour of PETN could change from brown colour to off white. In
his deposition on 27th January, 2010, he had opined on "possibility of
change of color", but accepted that he was not certain. He had not
done mixing in his laboratory and could not tell as an expert, as to the
change of colour of the compound, if all the three substances were
mixed. He admitted that he had not read literature, journals or books
regarding change of colour of explosives of this nature.
23. We, therefore, have no hesitation in holding that A. Dey (PW9)
had not affirmed authoritatively or even on preponderance of
probabilities that the colour of PETN mixture could change from brown
to off white because of adulteration of PETN with Ammonium Nitrate
and acid. In fact, the testimony of PW9 on the question of change of
colour, as an expert, deserves to be completely expunged as mere ersatz
for lack of personal knowledge and expertise on the subject of PETN.
He was unaware of scientific research and papers on PETN, change in
colour with passage of time on storage due to adulteration, etc.
24. Evidence of opinion or expert evidence is admissible under
Section 45 of the Evidence Act, 1872, when the court has to form an
opinion on the point relating to foreign law, science, art or identity of
handwriting, finger impressions, etc. In trials, both civil and criminal,
the courts are required to decide matters in which opinion of a skilled
expert by way of special study or experience may be necessary as the
Judges or the Presiding Officers may not be properly equipped to
answer/adjudicate issues involving special skill or knowledge.
25. Opinion by its very nature refers to an inference drawn from
the observed facts. Relevancy and credibility of the expert‟s opinion
is based upon the assumption that the said expert has the necessary
skill, qualification and experience to come to an objective and truthful
conclusion/opinion on the basis of examination undertaken by him.
Opinions given by experts are necessarily predicated upon their
acquired skill, experience and understanding of the particular subject.
26. Section 45 of the Evidence Act, 1872 makes the evidence of
experts admissible, but the credibility of the said evidence and to
what extent reliance can be placed upon it, has to be adjudicated by
the Court. Ultimately, it is for the Court to decide whether the said
opinion should be relied or acted upon or not. It is the duty of the
Court to test and evaluate the accuracy and credibility of the said
opinion and form their independent judgment on the facts proved by
evidence. Section 46 of the Evidence Act, 1872 makes facts, not
otherwise relevant, relevant if they support or are inconsistent with
the opinions of experts, when such opinions are relevant. The
Supreme Court in Baso Prasad v. State of Bihar (2006) 13 SCC 65,
has observed,
"37. Opinion of an expert, therefore, is a relevant
fact. The court may, thus, take the expert opinion
into consideration. But appreciation of evidence is
the court‟s job."
27. In matters relating to science, arts, etc. evidence or testimony
of an expert invariably carries weight and may influence the ultimate
issue or question which has to be decided. Therefore, care and caution
has to be exercised by the Court while scrutinizing and accepting the
expert opinion and the expert‟s competency, skill and knowledge on
the subject matter as well as his objectivity and reliability of the
finding. Both aspects have to be ascertained and judiciously
appreciated. In matters of serious offences, higher standards of
accuracy and objectivity are required from the expert testifying for
the prosecution. The Supreme Court in Murari Lal v. State of M.P.
(1980) 1 SCC 704 had discussed,
"4. ... An expert deposes and not decides. His duty
"is to furnish the Judge with the necessary
scientific criteria for testing the accuracy of his
conclusion, so as to enable the Judge to form his
own independent judgment by the application of
these criteria to the facts proved in evidence" [Vide
Lord President Cooper in Davis v. Edindurgh
Magistrate, 1953 SC 34 quoted by Professor Cross
in his Evidence]."
Recently again in Dayal Singh v. State of Uttaranchal (2012) 8 SCC
263, it has been held,
"37. Profitably, reference to the value of a expert in
the eye of the law can be assimilated as follows:
" ... The court is not to surrender its own
judgment to that of the expert or delegate its
authority to a third party, but should assess his
evidence like any other evidence.
If the report of an expert is slipshod, inadequate
or cryptic and the information of similarities or
dissimilarities is not available in his report and his
evidence in the case, then his opinion is of no use
... The court is not to believe the ipse dixit of an
expert. ... "In other words, the value of expert
evidence depends largely on the cogency of
reasons on which it is based." [See Forensic
Science in Criminal Investigation & Trial (4th
Edn.), by B.R. Sharma.]
40. We really need not reiterate various judgments
which have taken the view that the purpose of an
expert opinion is primarily to assist the court in
arriving at a final conclusion. Such a report is not
binding upon the Court. The court is expected to
analyse the report, read it in conjunction with the
other evidence on record and then form its final
opinion as to whether such report is worthy of
reliance or not ..."
28. This brings us to the testimony of the Court Witness, Dr.
Mahadev B. Talawar, Senior Scientist (Scientist E), High Energy
Materials Research Laboratory, Pune, Masters and a Doctorate in
Organic Chemistry, who had been working in the field of explosives
and allied defence materials, in the aforesaid laboratory since 1994.
He testified that he was familiar with PETN having performed and
done scientific research on the said substance, including its chemical
composition and characteristic. PETN, he deposed, is off white in
colour and he had not seen PETN of any other colour. The colour of
PETN could change if it is adulterated with another compound. When
excess amount of Nitric acid is present in PETN, the colour could be
slightly brown. On a specific question put by the court, as to whether
excess Nitric acid could cause change of colour of PETN with
passage of time, he answered that he had not conducted any such
experiment in respect of PETN in pure form. However, Nitric acid is
a strong oxidizer and could destroy the original identity and structure
of the compound. CW1, accepted that he was not aware, what would
be the colour of the compound after Nitric acid oxidizes PETN as he
had not conducted any such experiment nor he could answer whether
PETN would retain its character and quality as an explosive after
oxidization by Nitric acid. He, however, clearly stated that Thin Layer
Chromatography (TLC) test was a basic test and would indicate by
way of dots, the number of chemicals present and the said test could
indicate whether Ammonium Nitrate or any other acid was present. In
categorical terms, he denied having seen PETN of dark brown colour.
PETN, he explained, is created by mixing Nitric acid and
Pentaerthoritol. It could contain Nitric acid as an impurity, if the
compound is not washed with plenty of cold water. He clarified that
he had not made PETN from chemicals and could not state whether
during the manufacturing process or due to chemical reaction, at any
stage, the mixture could be of dark brown colour. On cross-
examination by the prosecution, CW1 accepted that if PETN is not
properly washed with cold water, traces of Nitric acid would be left in
the synthesized PETN compound, which could oxidize the
compound. PETN, in its purest form, is insoluble in water, but is
soluble in Acetone and Methyl Acetate. He refused to state in
affirmative or negative whether impurities like Ammonium Nitrate,
Dinitrate, Trinitrate, Nitro cellulose and Sulphuric acid etc. when
mixed with PETN, could change its colour, and reiterated that PETN
in purest form was colourless and white. He testified that he had not
done any experiment of mixing PETN with Sulphuric acid,
Ammonium Nitrate, Nitro cellulose or fuel oil.
29. Questions and answers relied upon by the prosecution read as
under:-
"Question: If ammonium nitrate is present in a mixture
which also has PETN and this ammonium nitrate absorbs
moisture from the atmosphere and converts into
ammonium hydroxide, please specify whether this
ammonium hydroxide will react with nitric acid and
sulphuric acid without any human intervention?
Answer: I cannot comment. As per text books, it is
possible. Reactions take place when acid and base are
mixed."
However, in subsequent cross-examination, he has stated as under:-
"Question: In an acid base reaction, impurities present in a
substance may undergo chemical reaction?
Answer: I am not certain whether reaction in such cases
would result in change of colour or substance which is
undergoing this reaction.
Question: The impurities present in the compound
containing PETN may undergo reaction or change because
of the heat, even if the said substance does not react?
Answer: Due to change of temperature, morphology or the
impurity may undergo change."
30. In cross-examination, by the counsel for the
appellants/accused, CW1 stated that when Ammonium Hydroxide
reacts with Nitric acid, water i.e. H2O and NH4(+) NO3(-) which are salt
compounds are created and that one unit of Ammonium Hydroxide
would result in one unit of water in numeric terms. He further stated
that High Performance Liquid Chromatography (HPLC) test could be
undertaken to find out percentage of each compound in a substance
and the said machine and apparatus is commonly available in most of
the research institutes in India. He voluntarily added that if mixing of
chemicals is done in a precise manner then crude product could in
fact be a pure PETN and the term „crude PETN‟ meant „washed
PETN‟. When „washed PETN‟ is not properly washed, it could
contain Nitrous acid in unstable form, but he was not aware if this
Nitric acid could result in an auto catalytic decomposition reaction in
PETN. He had further stated that if Nitric or Nitrous acid were added
to pure PETN, it could result in acid hydrolysis and in such cases
original integrity of the compound could get affected resulting in
decomposition of PETN, although he had himself not conducted any
such experiment. Reaction of Nitric acid would depend upon the
volume of Nitric acid added and he was unable to comment as to what
percentage or volume of Nitric acid could have caused reaction in
pure PETN.
31. The statement of Dr. Mahadev B. Talawar (CW1) on the said
aspect does not support the prosecution version that the brown
coloured PETN could have changed its colour because of
adulteration. We do not think CW1 endorsed the said view. Certainty
and affirmation on change of colour from brown to off white remains
credulously doubtful and positively uncertain. The assurance required
by the court in the facts of the case is absent and lacking. The change
in colour from brown to off white has not been satisfactorily
explained by the prosecution to merit acceptance and conviction.
Thus, there is a strong element of doubt whether the sample S1 in fact
was the sample drawn at the time of seizure as per the seizure memo
(Ex.PW2/D).
32. Confronted with the aforesaid position, the prosecution had
argued that the seizure was effected on 4th January, 2007 at about 9:15
PM and possibly the officers did not ascertain or notice the colour
correctly as it must have been a dark and cold night. The said
submission is meritless and has to be rejected. The seizure memo
(Ex.PW2/D) specifically mentions the colour of the seized material as
brown at two places. The deposition of PW8 and PW10, as noticed
above, are also categorical and assertive on the colour being brown.
PW10 was cross-examined on the said aspect with reference to the
CFSL report and no such defence or explanation was given. Upon
seizure, two samples of 10 gms each, were drawn and the explosive
material, as per the prosecution case, was duly weighed. The said
exercise of weighing would have taken some time and it is reasonable
to infer that there would have been ample and sufficient light.
Nizamuddin area is well lit and an urbanized colony of Delhi and it
would be fallacious, far-fetched and incongruous to uphold the said
contention.
33. We have also noticed that there is a slight discrepancy in the
description of the seized material in the seizure document
(Ex.PW2/D), in which it is described as „an oil based explosive‟; and
the CFSL report (Ex.PW9/A) and the worksheet (PW9/B), in which
sample S1 has been described as „off white putty like material‟. The
aforesaid difference by itself may not be significantly relevant. This
does not impinge and reflect on our findings recorded earlier, which
are clear and categorical.
(B) FAILURE TO PRODUCE THE CASE PROPERTY AND
SAMPLE S2 AND THE STORY OF FIRE IN THE
MALKHANA ON 10TH FEBRUARY, 2007
34. As noticed above, the prosecution had informed the trial court
that the case property, i.e. explosive material weighing 1.590 kg and
the second sample, S2 weighing 10 gms, were destroyed in the fire in
the malkhana on 10th February, 2007. What was produced before the
trial court was the sample S1, the detonators and the timing device.
The prosecution did not lead evidence to prove the incident of fire,
FIR No.13/2007, the report under Section 173 Cr.P.C., the CFSL
report filed with the closure report, etc.
35. The aforesaid failure was a serious lapse and omission on the
part of the prosecution. The case property of the present case, as per
the prosecution version, had got burnt to become a subject matter of
FIR No.13/2007. The present appellants/accused in FIR No.2/2007,
had a cause and concern to know as to what happened to the case
property and why it was not produced in the court. Why and what
caused the alleged fire leading to destruction of the case property, was
a relevant fact in a present case given the factual matrix. The
appellants were vitally affected, and principles of fair trial and natural
justice required and mandated that the evidence should have been
brought on record. The right of defence to question the fire as a cover
up and camouflage cannot be muffled and stifled, on the ground that
the cause of fire, etc. was a subject matter of another FIR, with which
the appellants were not concerned. The cause of fire, etc. had
fundamental and significant bearing on the case set up by the
prosecution. Aforesaid lapse and failure had resulted in a material
irregularity and caused unacceptable prejudice to the appellants. It
hampered the ends of justice and overlooked the principles of a fair
trial. The case of the appellants is that the explosive and other articles
had been planted to falsely implicate them.
36. As noted above, we had allowed the application of the
prosecution and supplementary statements of ASI Paramjit Singh
(PW6), ACP Sanjiv Kumar Yadav (PW10) and statements of Amrik
Singh (PW12) and N.B. Bardhan (PW13) were recorded.
37. Sanjiv Kumar Yadav (PW10), in his supplementary statement
recorded on 1st April, 2014, has testified that he was aware of FIR
No.13/2007, but was not associated with the investigation of the said
FIR. He accepted having filed the closure report under Section 173
Cr.P.C. marked Ex.PW10/CC, relying on the CFSL report
(Ex.PW10/CE). The closure report (Ex.PW10/CC) was accepted by
the trial court vide order marked as Ex.PW10/CD. In the cross-
examination, Sanjiv Kumar Yadav accepted that as the ACP, he did
supervise the „proceedings‟ in FIR No.13/2007. PW13 was the
investigating officer of the present FIR No.2/2007. The connect
between the two FIR is obvious and evident.
38. ASI Paramjit Singh (PW6) has deposed that he was the
malkhana In-charge in February, 2007 and on the night of 9th
February, 2007, had locked the malkhana room and had gone to sleep
at 10:00 PM. At about 4:00 AM, Const. Ram Naresh who was on
duty informed him that smoke could be seen emanating from the
malkhana room. He then opened the room and saw that the case
property kept on top of the chest had caught fire. He, along with
others present in the police station, doused the fire and informed the
SHO. His statement, Ex.PW6/CA was recorded. The CFSL experts
were called who collected four samples of the burnt case property.
Vivek Tyagi, the investigating officer of the said FIR No.13/2007,
took the case property in his custody and the same was deposited in
the malkhana and entries were made in the malkhana register. Three
bags, four pencil cells, as well as parcel E and sample S2 relating to
FIR No.2/2007 had got burnt in the said fire. Similarly, one bag and
two hotel registers relating to another FIR No.91/2006 had also got
burnt. However, cash parcel (mark R) did not burn or get damaged as
it was kept inside the chest. Similarly, the sample marked S1, mark T
and mark D did not burn as they had already been sent to the CFSL.
39. In the cross-examination, Paramjit Singh (PW6) elaborated that
in order to extinguish the fire they had thrown a blanket on the
burning case property which was then dragged outside the malkhana
room. Some water was thrown but he could not state how much water
was used. PW6 affirmed that the case property of FIR No.2/2007 in
eight pulandas was kept on the top of the safe, had got burnt in the
fire. He accepted as correct that he had not packed the said pulandas
in any bag. The case properties were kept by him year-wise in a
systematic manner and the case property in FIR No.2/2007 was kept
in one section. PW6 had accepted that as per Register No.19
beginning from 1st January, 2007, explosives seized in four cases
were lying in the malkhana on 10th February, 2007, and even the
explosives seized prior to the year 2007 were kept in the malkhana.
This was the only incident of fire during his tenure as the malkhana
In-charge from 2002 to 2009. He deposed that on 10th February, 2007,
when he opened the door of the malkhana, he could see flames from
the top of the safe to the ceiling. The safe was 7-8 feet in height and
the top of the safe was 2‟x2‟. The fire/flames had left a mark on the
wall and the ceiling. He denied the suggestion that FIR No.13/2007
was false or that the FIR was lodged on instructions of his seniors and
story of fire was fabricated because there was no incriminating
material or evidence seized in FIR No.2/2007.
40. This brings us to the cause of the fire as mentioned in the CFSL
report (Ex.PW10/CE) and the deposition of N.B. Bardhan (PW13).
We deem it appropriate to begin with the deposition of N.B. Bardhan
(PW13) that he had come to the scene of crime, a fact accepted by
ASI Paramjit Singh (PW6) that experts from CFSL were called and
had collected four samples of the case property. PW13 affirmed that
they had reached the spot at 1:30 PM to examine the scene of crime
and for ascertaining the cause of fire and remained there till 4:30 PM.
The fire was noticed by Paramjit Singh (PW6) in the morning at 4:00
AM. PW13 deposed that he had advised the investigating officer to
subsequently send the relevant material through official channel for
examination. The forwarding letter enclosing therewith the exhibits,
sent by the DCP, Special Cell, Delhi to the CFSL in relation to FIR
No.13/2007 is dated 12th February, 2007, but was received in the
laboratory on 19th February, 2007. The said exhibit, marked
Ex.PW13/DA consists of 14 pages and includes the seizure memo.
The seizure memo drawn up by Vinay Tyagi was signed by N.B.
Bardhan as witness No.1. As the contents of the seizure memo are of
some relevance, and the relevant portion is reproduced below:-
"(1) 04 burnt pencil cell placed in transparent polythene.
(2) Some burnt material/remains placed in transparent
polythene.
(3) Steel frame along with other burnt clothes/pulanda
remains related to exhibits of case FIR No. 02/07 of Spl.
Cell/SB.
(4) Some burnt cloth along with partly burnt books (urdu)
apparently related to exhibits of the case FIR No. 91/06,
Spl. Cell.
All the material so collected from SOC as per direction of
experts have been taken in to possession. The material
lifted vide Sl. No. 1 & 2 has been placed in a white cloth
pulanda and the same has been sealed with the seal of
„VKT‟. The material collected vide Sl. No. 3 apparently
related to crime exhibits/pulanda of FIR No. 02/07 Special
Cell/SB, has been placed in a plastic bag (katta) and the
same has been sealed with the seal of „VKT‟. The material
collected and lifted vide sl. No. 4 has been placed in one
separate bag (rice bag) „Lovel‟ and the same has also been
sealed with the seal of „VKT‟. All the material so collected
and sealed with the seal of „VKT‟ has been taken in to
possession for expert examination etc and purposes of
investigation. The proceedings have been carried out
today dt. 10.02.07 in the instant presence of visiting CFSL
experts team at Malkhana P.S. Special Cell/SB Lodhi
Colony."
41. The aforesaid seizure memo states that the parcels Nos.1 and 2
i.e. four burnt pencil cells placed in transparent polythene and some
burnt material placed in transparent polythene were placed in „a‟
white cloth and the same was (the expression used is „has been‟ and
not „have been‟) sealed with the seal of „VKT‟, whereas the material
collected at Serial No.3 relating to crime exhibits/case property of
FIR No.2/2007 was placed in a plastic bag/katta and sealed with the
seal of „VKT‟. Lastly the material mentioned at Serial no.4, was
placed in a separate bag (rice bag) with the word „Lovely‟ on it with
the seal of „VKT‟. Thus, there were three packs (pulandas). In the
first pack, items mentioned at Serial Nos.1 and 2 were kept in
separate polythene bags but thereafter packed in one i.e. „a‟ white
cloth pulanda. However, as per the CFSL report (Ex.PW10/C) and
the worksheet there were four separate packs/pulandas. How did the
three packs/pulandas become four; remains unintelligible creating
doubt and suspicion. The worksheet (Ex.PW13/CA), for the sake of
completeness is again reproduced below:
Sl.No. Parcel Description No. of des- Contents
No. of cover cription of
seal(s)
1. 1 Cloth cover 01/VKT It contained following exhibits:-
(i) Four burnt pencil Cell.
(ii) Small quantity of brown colour
putty like material.
(iii) Blackish powdery material of
burnt residue.
2. 2 Cloth cover 01/VKT It contained a lump of whitish
powdery material.
3. 3 Plastic 02/VKT It contained following exhibits:
gunny bag
(i) one burnt metallic frame portion
of hand bag.
(ii) One burnt audio cassette.
(iii) Burnt piece of a jute bag.
(v) Burnt piece of a black colour
hand bag.
(vi) One white cap
(vii) Burnt pieces of jacket and
trouser of a track suit.
4. 4 Jute gunny 02/VKT It contained following exhibits:
bag
(i) Two partially burnt books.
(ii) One partially burnt towel.
(iii) one partially burnt full-sleeve
jacket.
(iv) One partially burnt jean pant.
(v) One partially burnt full sleeve
shirt.
(vi) One handkerchief.
(vii) One partially burnt cap.
(viii) One pair of partially burnt
socks.
(ix) One partially burnt black
colour hand bag.
(x) Newspaper and carbon paper
pieces.
42. We have reproduced the contents of the four parcels/pulandas for
another reason also. As per the seizure memo quoted above, Serial
No.2 consisted of burnt material/remains, placed in a polythene.
Serial No.1 consisted of only four burnt pencil cells. Worksheet
(Ex.PW13/CA) mentions the contents of the Serial No.2 as whitish
powder material. In Serial No.1, small quantity of putty like material
was found which as per the worksheet and as per the deposition of
B.N. Bardhan (PW13), was burnt gur. This description does not tally
and match with the seizure memo. The aforesaid discrepancy,
individually and with reference to the seizure memo mentioning that
Serial Nos.1 and 2 were kept in one or single cloth pulanda, would
not be of much relevance but when read in tandem, with several
surrounding circumstances, ambiguity and uncertainty arises. Serial
No.2, as per seizure memo (Ex.PW13/DA) had burnt
material/remains and not white powder, the substance as mentioned in
the worksheet (Ex.PW13/CA). As per the seizure memo Serial No.4,
consisting of burnt clothes along with partly burnt books etc., relates
to FIR No.91/2006 and not to FIR No.2/2007. But it appears that
Serial No.4 included alleged seized articles relating to FIR No.2/2007.
43. At this stage, we would refer to the seizure memo (Ex.PW1/A)
relating to recovery of money from Ameen Wani and Ex.PW2/D,
relating to recovery of explosives, etc. from Luthfur Rahman. From
Ameen Wani, one black and red coloured shoulder bag with
„JANSPORTS‟ written on it, was recovered. In addition to
Rs.4,50,000/-, the bag contained one shirt, one jacket, one blue lower
and one white cap. As per the seizure memo (Ex.PW2/D), one multi
coloured jute bag with the words „TEN SPORTS DEKHO‟ printed on
it and one black coloured attaché-bag with the word „combed‟ written
on the front side of it were recovered from Luthfur Rahman. The
attaché-bag had two kurtas, pyzama, cap (namazi), two urdu books
and two audio cassettes, in it.
44. As per the Worksheet (Ex.PW13/CA) in Serial No.3, there was
one completely burnt/damaged metallic frame of a hand bag of black
colour with some plastic material stuck to it. One piece of
burnt/damaged jute carry bag with burnt pink coloured polythene. In
addition, there was one black coloured hand bag almost burnt and
damaged with some plastic material, melted and stuck. The hand bag
was having lateral base portion of 26x16 cms approximately. It had a
chain based circuit and a strong smell of acid (which appeared to be a
mineral acid).
45. Hurdles and difficulties in accepting the prosecution version
may be recorded here. The seizure memos, Ex.PW1/A and Ex.PW2/D
do not specifically and clearly refer to this black hand bag with the
base of 26x16 cm or the presence of a strong acid smell. The seizure
memo (Ex.PW13/DA), after the fire, does not refer to acid smell
emanating from any bag. Most importantly, the bag was not produced
before the trial court or before us for examination. In fact, none of the
three/four parcels/pulandas were produced for examination/inspection
before us.
46. Now we come to the cause of fire as opined in the
opinion/report, Ex.PW10/CE. The black bag as per PW13, was
subjected to physio-chemical examination to confirm the presence of
high explosive mixture based on PETN, Ammonia Nitrate and acid,
PW13 in the CFSL Report (Ex.PW10/CE) recorded:-
"(1) The Physio-Chemical examination confirmed the
presence of "High-explosive mixure" based on PETN,
Ammonium Nitrate and mineral acids in the black colour
hand bag contained in parcel No. „3‟ and hence the fire in
question could have been initiated due to exothermic
reaction of acids with the explosive mixture of PETN and
Ammonium Nitrate."
47. As per the worksheet (Ex.PW13/CA), „hot water extract‟ and
„acetone wash extract‟ of the available residues, were taken by
washing/swabbing and each was put in marked glass container for
performing chemical tests. The chemical test of the burnt/damaged
black coloured hand bag, 26x16 cms in size, was positive for PETN
and acid. As noticed above, as per the worksheet, the said bag had a
strong smell of acid, i.e. a mineral acid. Water extract from the black
coloured hand bag, upon other chemical tests with Griess reagent and
Nessler‟s reagent confirmed the presence of „Nitrates‟ and
„Ammonium‟. Similarly, the Acetone extract, upon chemical tests
such as the Spot Test and the TLC Test, gave positive results for the
presence of PETN in the Acetone extract sample from the black
coloured hand bag. Other samples gave negative results. The HPLC
analysis could not be done as the machine was out of order. The
worksheet, concluded presence of „Ammonium Nitrate", "PETN" and
strong acid (mineral acids but not H2SO4 or SO4(-2), viz. HCl/HNO3)
in the black coloured hand bag.
48. In his court deposition, PW13 testified that in his opinion,
when PETN was mixed with Ammonium Nitrate, it would burn but
would explode only if necessary detonating shock wave was created
because of the burning effect. It was not necessary that in all cases of
burning, the shock wave would be created. In cross-examination on
behalf of Ameen Wani, PW13 accepted that in an exothermic reaction
heat is generated and fire may take place when the quantum of heat
exceeds a particular level. This happens when the flash point is
reached. PW13 was unaware that the explosion temperature of PETN
at 5 seconds is 225ºC, or the scientific term, „deflagration to
detonation transition‟ (DDT) but was aware of concepts of
„deflagration‟ and „detonation‟ separately. PW13 testified in his
cross-examination as follows:
"I am not aware, again said I cannot state what is the explosion
temperature of PETN. From my memory, I can say that melting
point of PETN is 141 degree centigrade. I do not remember what
is the boiling point of PETN. The unit for measuring shock waves
is in terms of velocity of detonation and is expressed in meter per
second.
Q. What is the velocity of detonation required to ignite/burst
PETN?
Ans. I am not aware.
Q. Please see your answer to the question "if PETN mixed with
ammonium nitrate is burnt, will it explode or not?" and state what
is the required velocity of detonating shock wave necessary to
explode PETN?
Ans. I amnot aware of the quantum/scale of detonating shock
wave required to cause explosion of PETN.
xxx
Q. If exothermic reaction of acid with PETN occurs (as is
claimed) what would be the required temperature at which it
would ignite or catch fire?
Ans. When the temperature reaches the ignition point of PETN, it
would catch fire.
xxx
Q. if exothermic reaction is possible, would it be very rapid and
fast or would it take place for a period of over a month?
A. It is a chain reaction and, therefore, can take place over a
period of one month.
Q. If such exothermic reaction were to take place, it would raise
the temperature to the point that PETN would explode and it
would not burn?
A. No.
Q. If such a reaction takes place, it would reach explosion
temperature of PETN and would result in explosion and not
merely burn in the manner stated by you?
A. It is incorrect."
The aforesaid answers in the cross examination do not inspire
confidence and are unconvincing. Hesitation, if not doubts, persist
whether the report (Ex.PW13/CA) was a result of an intensive,
meticulous and rigorous scientific study and examination to opine that
exothermic reaction was the cause of fire. Why there was no
explosion, how the fire was confined and controlled, why did the
smell of the strong acid remained palpable inspite of the fire? These
are some questions which remain conspicuously unanswered. PW13
had not personally conducted experiments on exothermic reaction in
PETN, nor has he referred to scientific studies and papers written by
others, relied upon by him. PW13 was aware that PETN has an
explosion temperature as other explosives, but stated that he was not
aware of the said temperature as he had not conducted any tests. He
claimed he had read about the explosion temperature but could not
orally recollect the explosion temperature of any explosive. What is
perspicuously missing from the CFSL report is the reason why no
explosion took place inspite of the fire. It is apparent that this aspect
and question was not examined. Exothermic reaction as the cause of
fire, remains a faint possibility, but not a conclusive opinion. When
we notice the surrounding circumstances, and the said cause is pitted
and contrasted with the challenge that the fire was deliberate and
intentional façade to destroy the alleged case property which never
existed or was never seized, the opinion it has to be held is
incredulous and unsubstantiated.
49. Some other answers by N.B. Bardhan (PW13) in his cross
examination also reflect and create doubt about the understanding of
the witness on the said highly technical and complex subject in
question:-
"Generally when the quantity is larger, then due to exothermic reaction
more heat is generated.
Question: In your last answer, you have referred to quantum of heat and
not the temperature as a result of exothermic reaction?
Answer: temperature is directly related to the quantum of heat generated.
Question: Exothermic reaction in PETN weighing 1 Kg and PETN
weighing 10 gms would happen at the same temperature?
Answer: It is incorrect. Vol. In my opinion the exothermic reaction in 1
Kg of PETN will result in higher temperature, than in lesser quantity.
Question: Do we understand that 1 litre of water will boil at a lower
temperature than 10 litres of water?
Answer: When the water reaches the boiling point, it will boil.
Question: Therefore, it boils at same temperature at which exothermic
reaction takes place, whether it is 1 Kg or 10 gms, it will be the same?
Answer: In my opinion, it will not be the same because the exothermic
reaction is a chain process and during this process heat is generated, but
when more heat is generated temperature will rise.
xxx
While examining the present exhibits, I did not conduct any test to
ascertain presence of di nitrates, tri nitrates and mono nitrates of
pentaerthritol.
xxx
Question: As per the opinion of Mr. D.M. Chambers for presence of
PETN in fire or explosions is usually confirmed by testing for the lower
nitrates of pentaerthritol?
Answer: I do not agree with the said suggestion.
xxx
Question: What is the temperature of a gas stove flame?
Answer: I do not recollect.
Question: As a chemist, are you aware that all substances have an auto
ignition point?
Answer: I am aware of ignition point, but I am not aware of auto ignition
point."
50. We confess and accept our limited and sparse knowledge or
awareness on the said subject, but our aforesaid disapproval and
disinclination on Ex.PW13/CA is reflective and based on the
hesitancy and doubts expressed by CW1, Mahadev B. Talawar as to
the cause of fire opined in Ex.PW13/CA. CW1 in his court
examination opined that PETN cannot ignite or catch fire on its own
if it is in its pure form. On being questioned, "if PETN has got
impurities, can it ignite on its own?", he answered that he had no
experience and could not state whether it could catch fire on its own,
if it is impure or mixed with Ammonium Nitrate or Nitric acid.
However, PETN would explode if it is ignited in a confined state. He
had not seen PETN catching fire and could not state the consequences
or effect of PETN catching fire without exploding. On being cross-
examined by the prosecution, he explained that melting point of
PETN is 141.3ºC in pure form and PETN can be mixed with plastics
and converted into plastic explosives by introducing Nitro cellulose
and polymer bonded explosives. On further cross-examination, he
accepted that it is possible the Nitric acid may react with Ammonium
Hydroxide when moisture is present in the atmosphere but this
reaction would generate a very low intensity heat. He was not aware
if such low intensity heat could have formed hot spots. On court
question, he denied having come across any such hot spots of low
intensity heat. On being questioned by the counsel for the appellant,
he opined that binding 1.5 kg of PETN in two plastic sheets as well as
in a tight cloth would not amount to confining which can result in
explosion on ignition, but he accepted that if the PETN is found with
Nitric acid in two layers of plastic/polythene and packed in a cloth,
there may not be any absorption of moisture for Ammonium Nitrate
to convert to Ammonium Hydroxide, if the wrapping is proper. He
added that the compound could absorb oxygen and moisture from the
atmosphere before it is wrapped, and in such circumstances
depending upon the quantum of moisture absorbed, there may be a
reaction. He opined that the presence of Nitric acid upto 0.01% will
not lead to an exothermic reaction or cause fire or explosion.
However, it was difficult for him to answer as an expert whether
exothermic reaction was possible after PETN is stored for six weeks
with Nitric acid concentration being above 0.01%. He had not
conducted experiments involving burning of PETN and could not
state whether PETN burns quickly or takes time. He accepted that
PETN is used to make fuse wires and added that fuse wires are made
of substances which generate high heat so that the main
explosive/charge can be ignited. In such cases PETN is mixed with
some other substances. Theoretically, he accepted that when PETN
decomposes, Nitrous oxide is released along with lower compounds
like Dinitrates, Trinitrates and Mononitrates of Pentaerthritol. He
confirmed that 100% Nitric acid is unstable and normally 72% Nitric
acid is kept in laboratories, but explained that even that would fume
to some extent. He accepted that if 72% Nitric acid is added to PETN,
it will continue to fume. He accepted that as per Table I of the article
of D.M. Chambers, the explosion temperature at 5 seconds is 225ºC
which means that if PETN is kept for 5 seconds at 225ºC, it will
explode. He voluntarily added that it will explode even if it is not kept
in confinement. Further temperature of normal gas stove is 550ºC
approximately. Theoretically, PETN would melt at 141.3ºC which
may result in breaking of its bonds and release of energy, as a result
of which it may explode. At 180ºC, PETN boils and at 225ºC, the
bonds will break and in this way, energy would be released causing
an explosion. He accepted as correct that all substances have auto
ignition point at which they catch fire spontaneously. On being
reexamined by the prosecution with reference to the assertion at page
No.53 of the text book titled "Chemistry of Explosives" by J.
Akhavan, CW1 opined that the aforesaid passage shown refers to
main charge explosives and PETN, though a main charge is used as a
booster and, therefore, the said passage is not applicable. He
voluntarily added that they had heated PETN in glass test tubes at
225ºC and after 5 seconds, the test tube exploded but had not heated
PETN at 225ºC in a porcelain. He denied the suggestion that heating
PETN in test tubes amounted to confining, stating that one end of the
test tube was open.
51. A reading of the aforesaid testimonies, generates skepticism
and leaves us perplexed as to the cause of fire. The deposition of
PW13 and his report (Ex.PW10/CE), does not inspire confidence or
merit acceptance. The report is based on assumptions, if not reflecting
proneness. It is not duly supported by scientific data, papers, literature
or tests by the witness required to ascertain and discern whether
exothermic reaction was possible, and whether it could have resulted
in a fire of the said nature. Also, if there was an exothermic reaction
and fire, why PETN, 1.590 kg in weight did not explode; why acid
fumes inspite of fire were present; what analysis were conducted to
rule out the possibility of deliberate and intentional fire; why did the
fire confine itself to a few articles, etc. These are only a few of the
several aspects which the expert should have investigated and probed
into, before he could have opined on the subject. There are gaps
which remain unanswered and have left us perplexed and confused.
As per the case of the prosecution, 1.590 kg PETN got burnt and
nothing remained, but surprisingly, the bag in which it is stated that
the PETN was kept did not enkindle completely and had a strong
smell of acid fumes. The other two bags including the steel framed
attaché-bag had suffered extensive damage. The cause and reason of
fire remains a mystery, unsolved and unexplained. Ex.PW10/CE, the
opinion, does not deserve and merit credulous acceptance.
52. We have not commented on the clinical findings of A. Dey
(PW9) in the CFSL report (Ex.PW9/A) that the sample S1 had tested
positive for PETN and on presence of acid, or the CFSL report
(Ex.PW10/CE) of N. Bardhan (PW13) that Acetone extract and water
extract had tested positive for PETN, acid etc. What is in question and
under doubt is the oral testimony of A. Dey (PW9) on change of
colour from brown to off white and the adjunct issues whether PETN
was recovered; whether sample S1 was drawn from the material
recovered etc. The CFSL report (Ex.PW10/CE) is under challenge on
the finding/opinion on the cause of fire and other related issues
noticed above. These questions and doubts are relevant as we have to
rule out falsity and contrivance as to the cause of fire and to expunge
and erase doubts of PETN contamination and introduction post fire in
the material sent to the CFSL for examination. This disbelief and
demur arises due to the given factual matrix of the case.
(C) Other contentions and discrepancies pointed out by the
appellants.
53. A number of other contentions pointing out inconsistencies and
discrepancies in the oral statement of witnesses and documents on
record have been highlighted. Many of them we perceive are
explainable and do not substantially affect the prosecution version or
tilt the scale in favour of the appellants. These are being noted
hereunder for the sake of completeness:-
(a) Difference in the time of arrival of ACP, Sanjeev Kumar
Yadav (PW10) at the Adarsh Nagar bus stand, i.e. the place of arrest
of Ameen Wani has been highlighted. PWs-1, 2, 8 and 10 in their
examination-in-chief have deposed as to the arrival of ACP Sanjeev
Kumar Yadav (PW10) at the place of arrest of Ameen Wani at about
3:50 PM. Contra, PWs-1, 2, 5 and 8 in their statements under Section
161, Cr.P.C., had asserted that ACP Sanjeev Kumar Yadav (PW10)
had reached the said location at 5:30 PM. When confronted, PW10
claimed that this was a typographical error. The correct time was 3:50
PM. Appellant Ameen Wani was detained at 2:50 PM and PW10‟s
arrival at the spot at 3:50 PM is more logical and plausible. It is
noticeable that Head Constable Rustam, (PW5), who had left the spot
with rukka at 4:20 PM, had deposed that by the time he left the spot,
PW10 had arrived. A typographical error in recording the time as
3:50 PM, instead of 5:30 PM, is possible as it could be the result of
interchange of numericals, „3‟ and „5‟.
(b) There is a slight discrepancy about the time of recording of the
disclosure statement (Ex.PW2/C) of Ameen Wani. HC Rustam (PW5)
had affirmed that the aforesaid disclosure statement was recorded in
his presence. PW5 had however, left Adarsh Nagar bus stand with the
rukka at 4:20 PM. R.S. Shehrawat (PW2) testified the time of the
disclosure statement (Ex.PW2/C) as between 4:20 PM to 6:30 PM,
PW10 similarly asserted that the disclosure statement was recorded
between 5:40 PM to 6:30 PM. Disclosure statement will generally
involve two parts; the oral disclosure and then the transcription in
longhand. Thus, we do not perceive a material discrepancy.
Testimonies of the said witnesses were recorded after a substantial
delay and, therefore, some latitude and imprecisions in recollecting in
the exact time is not unusual but rather natural and normal.
(c) PW5‟s deposition that he had returned to the Adarsh Nagar bus
stand with copy of the FIR to hand over the document to the
Investigating Officer ACP Sanjeev Kumar Yadav (PW10) is not
correct and stands contradicted by testimonies of the other witnesses.
Depositions of PWs-1, 2, 8 and 10 are categorical that the copy of the
FIR was handed over to the Investigating Officer at the police station.
The said version is correct and merits acceptance as there was no
reason and occasion for PW5 to go back to Adarsh Nagar bus stand.
The wrong assertion by PW5 does not affect the prosecution case.
(d) PWs-1, 2, 8 and 10‟s deposition that they returned to the Police
Station Lodhi Colony from Adarsh Nagar bus stand within half an
hour, i.e. at 7 PM is again misplaced, as the time of departure would
only be an estimate and not precise. The witnesses could well have
left Adarsh Nagar 15 to 20 minutes earlier than as stated. It would be
inordinate and unrealistic to expect the witnesses to record or
remember the exact time of their every movement.
(e) DD No.14 (Ex.PW10/DA) and DD No.15 (Ex.PW10/DB) are
stated to be recorded at the police station Lodhi Colony at 7:00 PM
and 7:30 PM, respectively. Certified true copies of said DD entries
marked Ex.PW10/DA and Ex.PW10/DB filed by the prosecution
before the trial court, refers to provisions of the Explosive
Substances Act, 1908. As per the prosecution version, the explosive
substance purportedly PETN was recovered only at about 9:15 PM
after arrest of appellant Luthfur Rehman. Additional evidence was
led in the High Court and the original Daily Diary was produced,
photocopies of the DD Entries 14 and 15 were exhibited as
Ex.PW10/CA and Ex.PW10/CB. The original DD Entry Nos. 14
and 15, Ex.PW10/CA and Ex.PW10/CB, do not ascribe and refer to
the sections/provisions of the Explosive Substances Act, 1908. ACP
Sanjeev Kumar Yadav (PW10), when confronted with the aforesaid
discrepancy in his cross-examination in the trial court had attributed
and claimed that this was a typographical error. It can be argued
that Ex.PW10/DA and Ex.PW10/DB were not the true and correct
copies of the original entries as recorded in the Daily Diary
Register. To rule out the said possibility of tampering or
interpolation, we had examined the original register. The said
register was also examined by the advocates for the appellants.
There was no sign and indication of such nature. However, it does
appear to be strange and is incomprehensible why the typed "true
copies", duly exhibited before the trial court as Ex.PW10/DA and
Ex.PW10/DB, were not the true and correct copies of the original
DD entries. Such errors and lapses reflect and create doubt and in a
way, support the contention that the DD entries were recorded as
per their convenience. Moreover, in the present case, the person
who had recorded the DD entries has not deposed as a prosecution
witness and the person in-charge for recording the said entries, i.e.
Amrik Singh (PW12) has stated that he had not recorded the said
DD entries in his own handwriting, though he admits that DD Entry
Nos.13 and 16 recorded at 4 p.m. and 7.35 p.m., respectively, were
in his handwriting.
54. When and in which cases, probative value of evidence in
cases of non-compliance of statutory provisions, results in mere
irregularity or invalidates the prosecution version/conviction has
been noted and discussed in many decisions. A Division Bench of
this court, comprising of both of us (Sanjiv Khanna and G.P. Mittal,
JJ.), in Nipun Gola @ Nikhil versus State, Crl.A. No.7/2014,
decided on 3rd April, 2014, citing various case laws, have discussed
the issue in the following words:-
"A Division Bench of this Court, of which one of us (Sanjiv Khanna, J.)
was a member, in Sudhir Kumar versus State, Crl.A. 605/2013 decided
on 2nd September, 2013, held as under:-
"24. ... The discrepancies and gaps noticed in the prosecution
case mentioned above are significant and not illusionary.
Appellants have succeeded in denting the prosecution version
and have created doubts as to the actual story. It is apparent
that certain factual aspects have been held back and have not
been brought on record, creating grave suspicion. In some
cases, lack of or improper investigation is ignored but in the
present case the consequences or failure has resulted in
incompleteness and uncertainty which leave a number
unanswered queries and silence on material aspects. It causes
and creates confusion and ambiguity on the involvement of
the appellants."
The detailed discussion on the aspect can be found in Dayal Singh v.
State of Uttaranchal, (2012) 8 SCC 263 wherein it has been observed:
"19. Now, we will deal with the question of defective or
improper investigation resulting from the acts of omission
and/or commission, deliberate or otherwise, of the
investigating officer or other material witnesses, who are
obliged to perform certain duties in discharge of their
functions and then to examine its effects. In order to examine
this aspect in conformity with the rule of law and keeping in
mind the basic principles of criminal jurisprudence, and the
questions framed by us at the very outset of this judgment, the
following points need consideration:
(i) Whether there have been acts of omission and commission
which have resulted in improper or defective investigation.
(ii) Whether such default and/or acts of omission and
commission have adversely affected the case of the
prosecution.
(iii) Whether such default and acts were deliberate,
unintentional or resulted from unavoidable circumstances of a
given case.
(iv) If the dereliction of duty and omission to perform was
deliberate, then is it obligatory upon the court to pass
appropriate directions including directions in regard to taking
of penal or other civil action against such officer/witness.
20. In order to answer these determinative parameters, the
courts would have to examine the prosecution evidence in its
entirety, especially when a specific reference to the defective
or irresponsible investigation is noticed in the light of the
facts and circumstances of a given case."
After recording the aforesaid point for consideration, the Supreme Court
referred to earlier pronouncements which throw light on the subject in
the following words:-
"27. Now, we may advert to the duty of the court in such
cases. In Sathi Prasad v. State of U.P. [(1972) 3 SCC 613 :
1972 SCC (Cri) 659] this Court stated that it is well settled
that if the police records become suspect and investigation
perfunctory, it becomes the duty of the court to see if the
evidence given in court should be relied upon and such lapses
ignored. Noticing the possibility of investigation being
designedly defective, this Court in Dhanaj Singh v. State of
Punjab [(2004) 3 SCC 654 : 2004 SCC (Cri) 851] , held:
(SCC p. 657, para 5)
"5. In the case of a defective investigation the court has to be
circumspect in evaluating the evidence. But it would not be
right in acquitting an accused person solely on account of the
defect; to do so would tantamount to playing into the hands of
the investigating officer if the investigation is designedly
defective."
28. Dealing with the cases of omission and commission, the
Court in Paras Yadav v. State of Bihar[(1999) 2 SCC 126 :
1999 SCC (Cri) 104 : AIR 1999 SC 644] enunciated the
principle, in conformity with the previous judgments, that if
the lapse or omission is committed by the investigating
agency, negligently or otherwise, the prosecution evidence is
required to be examined dehors such omissions to find out
whether the said evidence is reliable or not. The contaminated
conduct of officials should not stand in the way of evaluating
the evidence by the courts, otherwise the designed mischief
would be perpetuated and justice would be denied to the
complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of
Gujarat [(2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8] , the
Court noticed the importance of the role of witnesses in a
criminal trial. The importance and primacy of the quality of
trial process can be observed from the words of Bentham,
who states that witnesses are the eyes and ears of justice. The
Court issued a caution that in such situations, there is a
greater responsibility of the court on the one hand and on the
other the courts must seriously deal with persons who are
involved in creating designed investigation. The Court held
that: (SCC p. 398, para 42)
"42. Legislative measures to emphasise prohibition against
tampering with witness, victim or informant have become the
imminent and inevitable need of the day. Conducts which
illegitimately affect the presentation of evidence in
proceedings before the courts have to be seriously and sternly
dealt with. There should not be any undue anxiety to only
protect the interest of the accused. That would be unfair, as
noted above, to the needs of the society. On the contrary,
efforts should be to ensure a fair trial where the accused and
the prosecution both get a fair deal. Public interest in proper
administration of justice must be given as much importance,
if not more, as the interest of the individual accused. In this
courts have a vital role to play.
(emphasis supplied)""
55. However, two discrepancies, not significant independently but
when read in tandem with the compelling discrepancies recorded
under the headings; (A) description and colour of the alleged
explosive material; and, (B) failure to produce the case property and
sample S2 and the alleged story of fire in the malkhana on 10th
February, 2007, gain and acquire relevancy. These are:-
(i) The prosecution version is that consequent to recovery of
Rs.4,50,000/- from Ameen Wani at Adarsh Nagar bus stand,
disclosure statement (Ex.PW2/C) revealed the source and time of
acquisition of money as morning hours from a hawala operator at
Chandni Chowk. Contra to the disclosure statement (Ex.PW2/C),
PWs-1, 2, 5, 8 and 10 in their Section 161, Cr.P.C. statements in
seriatim and unequivocally ascribed that the hawala operator had met
Ameen Wani at Adarsh Nagar, which is also consistent with Dalip
Kumar‟s (PW8) oral deposition in the Court. The oral depositions of
Vinay Tyagi (PW1) and ACP Sanjeev Kumar Yadav (PW10),
however, affirm that Ameen Wani had divulged the source as a
hawala operator at Chandni Chowk. PW10 when confronted with his
contradicting Section 161, Cr.P.C. statements, sought to explain the
same as a „typing mistake‟. The explanation is unacceptable and
merits rejection. The aforesaid discrepancy is material and relevant
and supports the appellant‟s version that appellant-Ameen Wani had
not made disclosure statement (Ex.PW2/C). This also makes the
recovery of Rs.4,50,000/- itself dubious and debatable. On alleged
recoveries from the appellant, Luthfur Rehman we have expressed
doubt. No inquiries or investigation were conducted to ascertain and
nab the hawala operator. The aforesaid lapse and failure can be
explained and justified as impracticable but the discrepancy regarding
the place or location where the hawala money was received, cannot
be termed as wholly insignificant or attributed as inconsequential.
ACP Sanjeev Kumar Yadav (PW10) version is that statements under
Section 161, Cr.P.C. were recorded post the disclosure statement
(Ex.PW2/C). PW10 in his examination-in-chief also accepted that the
disclosure statement of Ameen Wani was recorded before recording
statements under Section 161, Cr.P.C. were recorded. Thus, this
difference in the disclosure statement (Ex.PW2/C) and Section 161,
Cr.P.C. statements remains undecipherable.
(ii) R.S. Shehrawat (PW2) and Dilip Kumar (PW8) have deposed
that their statements were recorded by the Investigating Officer, i.e
Sanjeev Kumar Yadav (PW10) at 11 p.m. on 4th January, 2007 after
arrest of the appellant Luthfur Rehman. The said statement referes to
the disclosure statement of Luthfur Rehman (Ex.PW2/H), which as
per PW2, was recorded between 9.30 PM and 11 PM, whereas PW8
deposed that Ex.PW2/H was recorded on the next day i.e. 5th January,
2007 between 11:00 AM and 11:10 AM. PW8 testified that the
supplementary disclosure statement of Ameen Wani (Ex.PW-2/G)
was recorded on the next day i.e. 5th January, 2007. PWs-2 and 8 are
both witnesses to these two disclosure statements, Ex.PW-2/G and H.
PW10, in his examination-in-chief, asserted that Ex.PW-2/G and H
were recorded on 4th January, 2007 but was confronted with
Ex.PW2/G and H, which bore the date as 5th January, 2007. PW10
thereupon attributed the date recorded in Ex.PW2/G and H, i.e. 5 th
January, 2007, to be a typing mistake. The date mentioned in Ex.PW-
2/G and H is certainly 5th January, 2007. The aforesaid contradiction
cannot be explained and justified as a mere typing mistake.
Intriguingly, Section 161, Cr.P.C. statements of PWs-2 and 8 bore the
date as 4th January, 2007 refer to Ex.PW-2/G and H, recorded by the
Investigation Officer on 5th January, 2007.
56. The two statements Ex.PW2/G and H of Ameen Wani and
Luthfur Rehman have not been read in evidence as no part thereof led
to any recovery under Section 27 of the Evidence Act, 1872 but the
aforesaid two discrepancies reflect contradictions, depletes credibility
and erodes and impairs confidence and trust in the statements and
disclosures recorded, etc. during the investigation. Contemporaneous
recording in the Police diary, etc. as mandated is a salutary check and
imparts verifiable legitimacy and bestows trust and faith that the
prosecution version as unfolded and recounted in the court is truthful,
not torpid, and suffering from pretence and posturing. When the
courts find it difficult to uncover and discover the truth from the
duplicitous and distorted versions, the investigation is not merely
irregular but affects the quest to fathom and deduce the truth. It makes
the prosecution version vulnerable and too voracious to be accepted.
Doubts and uncertainty affects the veracity and acquires
verisimilitude.
57. The prosecution has urged that their version should be accepted
as there was no reason and cause for them to destroy the case property
in a fire on 10th February, 2007 as sample S1 was with CFSL since
22nd January, 2007. Prosecution had nothing to gain as they were
unaware of the purported discrepancy in the colour of the case
property and sample S1. The CFSL report (Ex.PW10/CE) is dated
15th March, 2007. The appellants contend that the said submissions
are hypothetical and assumptuous. The difference in colour was
apparent and patent. Appellants urge that the explosive material S1
was actually planted and therefore, the police officers would be aware
that they could not have established and proved the large recovery of
1.610 kg of PETN. Appellants submit that accepting the submission
would, therefore, be fallacious and contrary to the principles
applicable to criminal jurisprudence. Having considered the
submissions, we do not think it would be proper to proceed with the
assumption that the police officers and the Investigating Officers were
not aware of the discrepancy as has been suggested/submitted on their
behalf. After elaborate discussion on the question of colour change
and the fire, we have recorded that the prosecution case is
conspicuously weak and flounders. There are gaps and vital
discrepancies and, therefore, the prosecution story merits rejection.
58. Further, even if we presume that money was recovered from
the appellant Ameen Wani, in the absence of any other incriminating
evidence or material, when we efface recovery of PETN from Luthfur
Rehman, it would not establish and prove any criminal offence for
which he has been tried and convicted.
Statement of Ameen Wani under Section 313 Cr.P.C. and his
statement under oath as DW2.
59. Appellant-Ameen Wani had appeared as a defence witness
and asserted that his statement under Section 313 Cr.P.C. may be
considered as a part of his oral testimony on oath. He deposed that
he had filed an application, certified copy of which was marked
Ex.DW2/A, before the Chief Judicial Magistrate, Kathua, Jammu
and Kashmir, on 14th December, 2006. The application was ordered
to be listed on 30th December, 2006 before the Principal Sessions
Judge. Thereafter, he, through his brother Mohd Akhtar Wani,
moved an application before the Chief Judicial Magistrate on 30 th
December, 2006, certified copy of which was marked Ex.DW2/B.
He claimed that he was lifted by the Intelligence Bureau officials
and had been falsely implicated. In his statement under Section 313
Cr.P.C., Ameen Wani was more elaborate and stated that he had
gone to attend the Court of Additional Sessions Judge, Kathua in
connection with FIR No.43/2003 under Section 419, IPC and learnt
that Intelligence Bureau officers had spoken to his co-accused in
FIR No.43/2003 and his advocate. They had taken photographs of
the co-accused in the Court, which was objected to by the staff and
advocates. Officers from the Intelligence Bureau had then claimed
that they were reporters. At about 11 AM, when he was speaking to
his advocate, an officer of Intelligence Bureau came to meet him.
He was familiar with the said person as he had earlier arrested him
(Ameen Wani) in a case in 2003. He informed his advocate that the
said person was an Intelligence Bureau Officer and not his friend.
The Presiding Judge was on leave and the case was dealt with by a
subordinate Judge. When he came out of the Court to the seat of his
advocate, he was taken away by another person, wearing dark
glasses, stating that his senior wanted to talk to him. Appellant
Ameen Wani‟s advocate thereupon intervened and was informed by
the person that he was an Intelligence Bureau Officer. The said
Intelligence Officer left when his advocate asked him to come to
his seat. Ameen Wani then spoke to his brother, Mohd Akhtar
Wani, from his advocate‟s phone, that he was being watched by
some agency and that there was a threat to his life. Ameen Wani
asserted that the Intelligence Bureau Officers had spoken to his
associates, who were in judicial custody and warned them that
Ameen Wani would be booked for 4-5 years. This fact was narrated
by his associate in judicial custody, when he met him on 14th
December, 2006. Thereupon, his advocate had moved an
application before the Second Additional Sessions Judge to provide
to him, police security up to his residence. The Judge, after hearing
his grievance, informed that he was not competent to provide
security, but would keep the application on record for future
reference in case of any false implication. Ameen Wani‟s request
that he should be handed over to the local police was turned down.
On coming out of the Court, four Intelligence Bureau Officers
approached him and one of them at gunpoint asked him to get down
from the auto rickshaw and board their vehicle. His eyes were
covered with a strip of cloth and after two and a half hours of
travel, he was detained in a room at Jammu. He was asked why he
had visited relatives of persons killed in fake encounters, to which
he replied that he was the President of All India Forward Block,
Banihal, District Doda. After four days, he was taken to Tavi River
and again threatened that he would be killed. Subsequently, he was
taken back to the same room and detained for four more days.
Later, he was brought to Delhi, via Punjab. On 22nd December,
2006, he was produced before Inspector Badrish Dutt of the Special
Cell. He remained there till 1st January, 2007 and thereafter was put
in a lock up for one day before being falsely booked in the present
case. He denied having any connection with the case and asserted
that no recovery was made from him and the appellant Luthfur
Rehman was not arrested at his instance.
60. We are not inclined to accept the said chain of events and
deposition of DW2, i.e. the appellant Ameen Wani for the
following reasons:-
(i) Ameen Wani did not produce the advocate, Arvind Kumar in
support of his assertion.
(ii) Application, Ex.DW2/A purportedly bore signature of
Ameen Wani contrary to what has been stated by him in the Section
313, Cr.P.C. statement, that the application was moved by his
advocate and he was subsequently called. The alleged noting of the
Judge on the said application records that the application was
presented by the advocate. It was noted that the Principal Sessions
Judge, Kathua, before whom the case was pending was on leave
and the application was directed to be listed before him on 30th
December, 2006.
(iii) The application mentions that four persons posing as
Intelligence Bureau officers had taken photographs of co-accused
without the permission of the Court. The application does not
mention about any connection or conversation between Ameen
Wani and the said officers. Nor does it state that Ameen Wani was
acquainted with any one of them.
(iv) The application states that Ameen Wani had not committed
any other offence and had no other case except for FIR No.43/2003
under Section 419, IPC. In his statement under Section 313,
Cr.P.C., Ameen Wani claimed that earlier in 2003, he was detained
in a case by an officer of Intelligence Bureau.
(v) The application mentions four Intelligence Bureau Officers
had taken photographs, but in the Section 313, Cr.P.C. statement,
Ameen Wani claimed that he had met with only two officers in the
Court complex. In the application it is stated that the aforesaid
persons were unknown to him, whereas he had expressly
acknowledged and identified one of them in his Section 313,
Cr.P.C. statement.
(vi) Application marked Ex.DW2/B was purportedly moved by
one Mohd Akhtar Wani, brother of Ameen Wani on 30th December,
2006. However, the said brother was not produced as witness. Nor
copy of the order passed on the said application has been filed on
record.
(vii) Interestingly, Ameen Wani has not the given names of the
Intelligence Bureau Officers, not even of the one who had
previously arrested him and whom he had claimed to know.
(viii) The application is silent and Ammen Wani in his statements
remained mum regarding the names of the persons, in judicial
custody and how and whether permission was granted by the Judge
to enable Ameen Wani to speak to the said persons.
Final findings and conclusion
61. The findings cast grave doubts on the purported seizure of the
material from the appellant, Luthfur Rehman, stated to be of brown
colour. The contention that two detonators, one timing device and
four pencil cells were recovered and seized from appellant-Luthfur
Rahman, we observe stands discredited and gravely suspected when
the recovery of the explosive PETN is disbelieved. To accept the said
recoveries would be incongruous and contradictory. The recovery and
seizure of the articles is disentailed and fused. Appropriately, we have
noticed other discrepancies and lacunas in the prosecution version.
There is no evidence or material to show that appellant-Luthfur
Rahman was a member of HUJI. No witness has deposed to the said
fact. The conviction of the appellant-Luthfur Rahman under Sections
121/121A/122 read with Section 120B of the IPC, under Section 5 of
the Explosive Substances Act, 1908 and under Section 17/18/19 of
the Unlawful Activities (Prevention) Act, 1967, therefore, has to be
set aside and he is accordingly acquitted. However, conviction and
sentence of appellant-Luthfur Rahman under Section 14 of the
Foreigners Act, 1946 is maintained and upheld.
62. Once we disbelieve the prosecution version on recovery of
explosive pursuant to the disclosure statement (Exhibit PW-2/C),
conviction of appellant-Ameen Wani under Sections 121/121A/122
read with Section 120B of the IPC, and under Section 17/18/19 of the
Unlawful Activities (Prevention) Act, 1967 has to falter and
accordingly it has to be set aside. No evidence has been brought on
record to show and establish that appellant-Ameen Wani was a
member of HUJI. In fact, none of the witnesses have even orally
deposed to the said fact. Conviction of appellant-Ameen Wani under
Sections 121/121A/122 read with Section 120B of the IPC, and under
Section 17/18/19 of the Unlawful Activities (Prevention) Act, 1967 is,
therefore, set aside and he is acquitted.
63. Appellant-Ameen Wani will be accordingly released unless he
is required to be detained in any other case in accordance with law
(we are informed that appellant-Ameen Wani is presently under
detention in another case. The aforesaid acquittal would not affect the
said detention). Appellant-Luthfur Rahman has already undergone
Rigorous Imprisonment for a period of five years awarded to him for
the offence under Section 14 of the Foreigners Act, 1946. He was
also liable to pay fine of Rs.50,000/-, in default of which he stands
sentenced to undergo Rigorous Imprisonment for one year.
Appellant-Luthfur Rahman has suffered incarceration for more than
six years and is accordingly entitled to be released unless he is
required to be detained in any other case in accordance with law.
The appeals are allowed to the extent indicated above.
-sd-
SANJIV KHANNA, J.
-sd-
G. P. MITTAL, J.
October 1, 2014
kkb/NA/VKR
