Mohd.Rashid vs State Of Nct Of Delhi
2020 Latest Caselaw 1350 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                          Judgment Reserved On: 10.12.2019
                         Judgment Pronounced On: 28.02.2020
+        BAIL APPLN. 2004/2018
         MOHD.RASHID                           ..... Petitioner
                            Through:     Mr. Mehmood Parcha,
                                         Advocate
                            Versus
         STATE OF NCT OF DELHI                 ..... Respondent
                            Through:     Ms. Neelam Sharma,
                                         Additional Public Prosecutor
                                         for State
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
                               JUDGMENT

BRIJESH SETHI, J

1. Vide this order, I shall dispose of a bail application filed on

behalf of the petitioner Mohd. Rashid under section 439 Cr.P.C. in

FIR No. 55/2013 u/s. 120B IPC & u/s. 18/20 UA(P) Act, PS special

Cell.

2. Ld. Counsel for the petitioner has prayed for bail on the

ground that petitioner is innocent and has been falsely implicated.

Petitioner was arrested by the police on 16.12.2013 and since then,

he is in judicial custody. The allegations levelled against the

petitioner are not only ill founded but also improbable and

technically impossible and there is absolutely nothing incriminating

against the petitioner in the entire charge sheet. He has never been

involved in any illegal, anti-national or anti-social activity and he

has been mechanically charged to be a member of a banned terrorist

organization. It is submitted that prosecution is trying to concoct a

story to falsely implicate the petitioner on the basis of disclosure

statement made by petitioner which is not admissible as per Section

25 of The Indian Evidence Act. No call whatsoever was ever made

by the petitioner to anyone outside India using the SIM cards

alleged to have been recovered from the petitioner. It is further

submitted that no evidence has been placed in the entire charge-

sheet to charge the petitioner with either criminal conspiracy or

under Section 18 & 20 of the Unlawful Activities (Prevention) Act,

1967.

3. It is further submitted that the statement of prosecution

witnesses i.e. PW-3 Mr. Liyakat Ali, PW-13 Mr. Javed Khan, PW-

14 Mr. Shabbir and PW-15 insp. Jagdish Prasad make it evident

that the officials of Delhi Police special Cell are trying to concoct a

false story against the petitioner. It is further submitted that co-

accused Mohd Sajid has been granted bail vide order dated

20.12.2018 and on the ground of parity, petitioner be also released

on bail.

4. Ld. APP for the state has opposed the bail application on the

ground that allegations against the petitioner are serious in nature.

Petitioner is a member of banned organization LeT and there is clear

evidence by way of deposition of prosecution witnesses that

petitioner played an active role in unlawful activities. It is further

submitted that Section 45D of UP(A) Act contemplates that accused

persons shall ot be released on bail or on his own bond if the court,

on a perusal of the case diary or the report made under Section 173

Cr.P.C. is of the opinion that there are reasonable grounds for

believing that the accusation against such person is prima facie. Ld.

APP in this regard has also relied upon "National Investigation

Agency v. Zahoor Ahmad Shah Watali, Crl. A. no. 578/2019",

decided on 02.04.2019. He has, therefore prayed for dismissal of

the anticipatory bail application.

5. I have considered the rival submissions. It is the case of the

prosecution that a secret information was received from the central

Intelligence Agency that a Pakistani SIM bearing no.

+923214460675 (being used by a LeT Handler) is being contacted

by a mobile phone of Rajasthan bearing number 8094518399 and

there was suspicious conversation between them indicating a

conspiracy to carry out a terrorist act. On scanning of IMEIs of

mobile handsets on which the aforesaid mobile number 8094518399

was used, three more SIMs bearing numbers 8094515837,

8502902618 & 8502902589 were also found operated. It was also

found that a mobile number 9992664785 (Idea Haryana) being used

by Md. Aris had also contacted the above mentioned Pakistan

mobile number on 14.10.2013. It was also found during

investigation that all the above numbers were obtained on fictitious

IDs. During investigation, Md. Aris revealed that one Shahid s/o

Deen Mohamad R/o village-Bazeedpur, PS Nagina, Distt. Nuh,

Mewat, Haryana who works as an Imam in a Mosque of Ari's

village had borrowed the SIM from Aris on the pretext that his SIM

is having some problem and he needed a SIM. He also assured Aris

to return it soon. Arif further revealed that despite his asking,

Shahid failed to return his SIM and after lapse of substantial time,

he returned it but as soon as he installed the aforesaid SIM, he got a

call from Special Cell.

6. It is further submitted that on 07.12.2013, Shahid was arrested

who disclosed that he had met Rashid in march/ April, 2013 who

was working as an Imam in a Mosque in village Ghagas, Haryana.

Rashid told him that he is a member of LeT (Lashkar-e-Toiba)

which is at the task of taking revenge from those who are doing

atrocities against muslims and he is on the way of Jihad. Shahid

expressed his willingness to join him in this task. Rashid also

disclosed him that his organisation is planning to give effect to a

terrorist act in Delhi and the neighbouring states and for that

purpose and to keep in touch with other terrorist, he needed a SIM

registered in the name of any unknown person.

7. It is further submitted that Rashid was arrested by SHO/PS

Nuh, Mewat under Section 41.1 Cr.P.C. and subsequently, he was

arrested in the present case on 16.12.2013. During interrogation, he

disclosed that subsequent to the Gopalgarh riots, he was seething to

take revenge from the non muslims. He also revealed that he came

in contact with one Abdul Subhan at Nagina, Haryana in the year

2011 itself and further disclosed that he was having knowledge that

a large quantity of arms and explosive were recovered from Abdul

Subhan. Thereafter, he joined hands with Abdul Subhan and

proceeded on the way of Jihad. Both of them started working on a

plan of giving effect to some terrorist act in Delhi and the

neighbouring states. They travelled to Muzaffarnagar so as to add

more muslims and to raise funds. The act of Rashid was

established, as phone number 8396054052 (used by Abdul Subhan)

and the phone no. 9050510026 (used by Rashid) were on roaming

and they both had been travelling together as their CDR locations

remained same throughout their visit to U.P. on the relevant

date/time. As per the CDR of mobile no. 99926664785 being used

by Md. Aris, on 13.10.2013, it had routed to village-Kulhedi

(Village of witness Liyaqat) Uttar Predesh, via Delhi and then to

Mewat via Delhi on 14.10.2013. While roaming in Delhi, this

number was also used to talk to Javed Baluchi on the Pakistani

number +923214460675. Statement of witnesses Liyakar and

Zameerul makes it clear that there was close association of Rashid

with Abdul Subhan.

8. It is further submitted that petitioner had also got recovered

two mobile phones and three SIM card numbers i.e. 8094518399

(Voda Raj.), 8502902618 ( Idea Raj.), and8502902589 ( Idea Raj)

from Ghagas Hills, Nagina, Mewat. These three SIM cards were the

same SIM cards which were run on the same IMEI phone number as

provided in the input by Central Intelligence Agency. Out of

these three recovered SIM cards, one mobile number

8094518399 was used by Rashid to talk to Javed Baluchi on

19.11.2013. Another mobile number 8094515837 was purchased on

28.11.2013 on fictitious identity. Mobile number 8398027101 with

handset having IMEI no. 3515450475591614 recovered from

accused Shahid was in frequent contact with petitioner Rashid's

mobile number 8930899979 from 30.10.2019 to 06.12.2013. This

number was also used in the same IMEI/handset in which

8094518399 and 8094515837 were used by accused Rashid to talk

to Javed Baluchi. To ascertain the suspicious conversation, Rashid

was directed to give his voice sample but he refused to give sample

of his voice for comparison. The intercepted calls between Arshad

& Javed Balluchi and Rashid and Javed Balluchi were sent to CFSL

for comparison and it is on record that the person who was taking

with Arshad & Rashid is the same person i.e. Javed Baluchi.

9. It is next submitted that during trial Aris and Liyakat have

already been examined as PW-11 and 3 and they have remained

consistent and unimpeachable throughout. Their testimonies in

addition to other evidence, establishes the chain and association of

the accused persons with each other and also their active

participation in the unlawful activities. CDR analysis and other

evidence conclusively reflect that Rashid was an active member of

LeT.

10. Perusal of entire record, thus, reveals that petitioner along

with accused Abdul Subhan had hatched a criminal conspiracy to

commit terrorist activities in Delhi and NCR. He also raised funds

in the name of jihad. Petitioner also got recovered two mobile

phones and three SIM cards bearing no. 8094518399 (Voda Raj.),

8502902618 ( Idea Raj.), and 8502902589 ( Idea Raj) from Ghagas

Hills, Nagina, Mewat. The number 9992664785 recovered from

Aris was also used by petitioner to contact with Javed Baluchi over

Pakistan. It is further submitted that mobile number 8398027101

with hand set having IMEI number 3515450475591614 was

recovered from accused shahid. This number was in frequent

contact with accused Rashid's mobile number 8930899979 from

30.10.2013 to 06.12.2013. This number was also used in the same

IMEI/handset in which 8094518399 and 8094515837 were used by

accused Rashid to talk to Javed Baluchi. The intercepted calls

between Arshid and Javed Balluchi and Rahid and Javed Balluchi

were sent to CFSL for comparison and it is on record that the

person who was taking with Arshad and Rashid is the same person

i.e. Javed Balluchi. It is a settled law that at the stage of bail, the

evidence need not be analyzed and examined in detail. The trial

court will no doubt appreciate the evidence and will take into

account all the submissions/contentions of the Ld. Counsel for the

petitioner. At this stage, it is not permissible to the court to conduct

a mini trial. However, material on record links the petitioner Rashid

with the alleged unlawful activities.

11. In view of the above material appearing on record, this court,

therefore, finds no merit in the submission of Ld. Counsel for the

petitioner that since co-accused Shahid was granted bail, petitioner

is also entitled to get bail on the ground of parity. In the case of

Shahid, he was granted bail as his role was limited to the extent of

arranging unidentified SIM Cards and mobile handsets to the co-

accused persons. There was nothing on record to suggest that

accused Shahid was in touch with Abdul Subhan, Arshad or Javed

Baluchi. On the other hand there is material on record to suggest

that petitioner has played an active role in commission of alleged

offence and therefore, benefit of parity cannot be extended to the

petitioner. Moreover, no straitjacket formula can be laid down for

grant of bail. Each case has its own peculiar facts and

circumstances.

12. In view of allegations appearing on record, and keeping in

mind the role of the petitioner in the commission of alleged offence,

no grounds for bail are made out at this stage. The bail application

is therefore, dismissed and stands disposed of accordingly.

BRIJESH SETHI, J February 28, 2020 /Ak