Nazir Khan vs State
2021 Latest Caselaw 18352 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 507/2021 IN D.B. Criminal Appeal (Db) No. 143/2020 Nazir S/o Meeru Khan Musalman, Aged About 45 Years, R/o Ratharo-Ka-Tala, Police Station Beenjrad, District Barmer. (Presently Lodged At Central Jail, Jodhpur).

----Applicant Versus State Of Rajasthan

----Respondent CONNECTED WITH D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 753/2020 IN D.B. Criminal Appeal (Db) No. 147/2020 Nazir Khan S/o Shri Jiya Khan, Aged About 38 Years, By Caste Musalman, Resident Of Bhoote-Ki-Dhani, P.S. Bijrad, District Barmer.

(At Present Lodged In Central Jail, Jodhpur).

----Applicant Versus State of Rajasthan

----Respondent D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 111/2021 IN D.B. Criminal Appeal (Db) No. 181/2020 Mubarak S/o Haji Hameer, Aged About 63 Years, R/o Negrada, P.S. Shiv, District Barmer.

(At Present Central Jail, Jodhpur).

                                                                   ----Applicant
                                    Versus
State Of Rajasthan
                                                                 ----Respondent



                                        (2 of 15)                 [SOSA-507/2021]

D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 258/2021 IN D.B. Criminal Appeal (Db) No. 161/2020 Jagmohan Singh S/o Shri Gurunam Singh, Aged About 38 Years, Bc/ Sikh, R/o Ward No. 12, Mohalla Singhpura Bassi Pathan, District Fatehgarhsahib, State Punjab.

(Presently Lodged At Central Jail, Jodhpur)

----Applicant Versus State Of Rajasthan

----Respondent D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 445/2021 IN D.B. Criminal Appeal (Db) No. 173/2020 Khanu Khan @ Khaniya S/o Shri Maruf, Aged About 60 Years, By Caste Muslim, R/o Bhabhute Ki Dhani, Binzrad Police Station, district Barmer.

(Lodged In Central Jail Jodhpur).

----Applicant Versus State Of Rajasthan

----Respondent

For Applicant-Nazir S/o Meeru Khan : Mr. Nishant Bora

For Applicant-Nazir Khan S/o Jiya : Mr. Suresh Kumbhat Khan Mr. Sheetal Kumbhat

For Applicant-Mubarak : Mr. Vishal Sharma

For Applicant-Jagmohan Singh : Mr. Dhirendra Singh Ms. Priyanka

For Applicant-Khanu Khan @ : Mr. B. Ray Bishnoi Khaniya

For Respondent-State : Mr. R.R. Chhaparwal, PP

(3 of 15) [SOSA-507/2021]

HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Order

Date of Order Reserved : 17/11/2021

Date of Order Pronouncement : 03/12/2021

(Per Hon'ble Vijay Bishnoi, J)

D.B. Criminal Appeal Nos.143/2020 and 147/2020 are

admitted. No need to issue notice of the said appeals as the

parties are already represented through their respective counsel.

These suspension of sentence applications have been

preferred on behalf of applicants for suspending their sentence

awarded by the Special Judge, Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities Cases), Barmer (hereinafter to be

referred as 'the trial court') vide judgment dated 25.08.2020 in

Sessions Case No.01/2010 (37/2010, 04/2016) while convicting

and sentencing them for life imprisonment for the offences

punishable under Sections 5 and 6/9-B of Explosive Act; Sections

4, 5 and 6 of Explosive Substances Act; Sections 3/25 and

7/25(1)(D)(1-AA) of Arms Act; Sections 3/10, 13, 18 and 20 of

Unlawful Activities (Prevention) Act and Sections 153-A and 120-B

IPC.

Regarding Nazir S/o Meeru Khan :-

Mr. Nishant Bora, learned counsel appearing for

applicant-Nazir S/o Meeru Khan has submitted that the applicant

is in custody from last more than 12 years and taking into

consideration this fact alone, his sentence may be suspended.

(4 of 15) [SOSA-507/2021]

Learned counsel for the applicant has placed reliance on the

decisions of the Hon'ble Supreme Court rendered in Smt. Akhtari

Bi Vs. State of M.P. [Appeal (Crl.) 320/2001] dated

22.03.2001 and the order passed in Saudan Singh Vs. The

State of Uttar Pradesh [Petition(s) for Special Leave to

Appeal (Crl.) No.4633/2021] dated 05.10.2021 and argued

that as the applicant is in jail from around 12 years and the appeal

filed by him will take time in decision, his sentence may be

suspended.

Learned Public Prosecutor has vehemently opposed the

prayer made on behalf of applicant-Nazir S/o Meeru Khan and

argued that the present case is involving sovereignty and integrity

of the country. It is submitted that the applicant along with other

co-accused persons hatched the conspiracy and received illegal

firearms and explosive RDX from Pakistani smugglers over the

border with the understanding that they would supply the said

illegal arms and explosives to the members of terrorist

organization Babbar Khalsa of Punjab to carry out terrorist

activities.

It is further submitted that the trial court has meticulously

examined the prosecution evidence and given a finding that the

applicant, along with other co-accused - Soda Khan @ Sobar @

Luniya had received the haul of illegal arms including explosive

RDX from the Pakistani smugglers and hidden the same on a

secluded place with the intention to supply the same to the

members of the terrorist organization Babbar Khalsa of Punjab.

Learned Public Prosecutor has submitted that with the alertness of

the police, the haul of illegal arms and the explosive RDX were

(5 of 15) [SOSA-507/2021]

recovered before it could be supplied to the terrorist. Learned

Public Prosecutor has submitted that the offences, for which

applicant-Nazir S/o Meeru Khan has been convicted and

sentenced, are serious and heinous in nature, therefore, the

sentence awarded to him may not be suspended.

Regarding Nazir Khan S/o Jiya Khan :-

Mr. Suresh Kumbhat, learned counsel appearing for

applicant-Nazir Khan S/o Jiya Khan has submitted that the

applicant is in custody from last more than 5 years and he was

enlarged on bail during trial. It is further argued that as per the

prosecution story, the applicant was in receipt of the illegal arms

and explosives, said to have been smuggled by the smugglers of

Pakistan. It is submitted that the allegation of transporting illegal

arms and explosives in the vehicle of the applicant is also false

and not supported by any evidence. It is, therefore, argued that it

is a case of 'no evidence' and in such circumstances, the sentence

awarded to the applicant is liable to be suspended.

Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of applicant-Nazir Khan S/o

Jiya Khan and argued that the prosecution has sufficiently proved

the charges against the applicant. It is submitted that the police

have recovered the foot moulds from the place, where the arms,

ammunition and explosives were recovered and those foot moulds

were matched with the applicant and the prosecution has proved

that the foot moulds, taken from the place, where the arms,

ammunition and explosives were hidden, are of the applicant.

Learned Public Prosecutor has argued that though the applicant

(6 of 15) [SOSA-507/2021]

clearly knew that the illegal arms and explosives are to be used

for anti national activities yet he conspired with the co-accused

persons, involved in commission of crime. It is, therefore,

submitted that the sentence awarded to the applicant may not be

suspended.

Regarding Mubarak S/o Haji Hameer :-

Mr. Vishal Sharma, learned counsel appearing for applicant-

Mubarak S/o Haji Hameer has submitted that the applicant was

enlarged on bail during trial. It is submitted that the applicant has

falsely been implicated in this case. It is argued that there is no

evidence available on record to connect the applicant with

commission of crime. It is submitted that though the case was

registered in the year 2009 but the applicant was arrested in the

year 2011. It is further submitted that there is no evidence

available on record to suggest that the applicant hatched

conspiracy with the other co-accused persons. It is also submitted

that the prosecution has alleged that the applicant was in constant

touch with the co-accused persons through mobile phone,

however, the mobile phones said to have been recovered from the

applicant do not belong to him. It is also submitted that the

witnesses, whose statements were recorded against the applicant

during the course of police investigation, have not supported the

prosecution story. It is further submitted that during trial, the

applicant was enlarged on bail by this Court vide order dated

07.11.2012 after noticing that the investigation was done very

casually. It is, therefore, prayed that the sentence awarded to the

applicant may be suspended.

                                          (7 of 15)                 [SOSA-507/2021]


     Per   contra,   learned       Public      Prosecutor        has   vehemently

opposed the prayer made on behalf of applicant-Mubarak S/o Haji

Hameer and argued that from the evidence produced by the

prosecution before the trial court, it is clear that the applicant had

actively participated in the commission of crime along with other

co-accused persons. It is further submitted that from the evidence

of the trial court, it is clear that the applicant, with prior

knowledge of severity of crime, took illegal arms and explosives in

his possession and actively participated in commission of crime

with the other co-accused persons.

Regarding Jagmohan Singh S/o Gurunam Singh :-

Mr. Dhirendra Singh, learned counsel appearing for

applicant-Jagmohan Singh S/o Gurunam Singh has submitted that

the applicant is in jail from last more than 12 years. It is argued

that as a matter of fact the prosecution has failed to produce the

cogent and reliable evidence against the applicant to the effect

that he came to Jodhpur for receiving the haul of illegal arms and

explosive RDX from the other co-accused persons. It is also

argued that though the prosecution has termed the applicant as a

member of terrorist organization Babbar Khalsa of Punjab but no

such evidence has been produced on record, by which it can be

concluded that the applicant is connected with the terrorist

organization Babbar Khalsa of Punjab in any manner. It is further

argued that the trial court has swayed with the fact that the

applicant was facing trial for the similar kind of offences

punishable under the Unlawful Activities (Prevention) Act, 1967,

however, in those cases, he was acquitted after full-fledged trial

(8 of 15) [SOSA-507/2021]

by the concerned competent courts. Learned counsel for the

applicant has pressed into service the judgment dated 12.05.2016

passed by the High Court of Punjab and Haryana at Chandigarh in

Jagmohan Singh @ Rinku & Anr. Vs. State of Punjab and

Anr. [CRA-S-4214-SB of 2013 (O&M)] and the judgment dated

27.02.2015 passed by the Additional Sessions Judge, Patiala in

State of Punjab Vs. Jagmohan Singh @ Rinku & Ors. [S.C.

No.34 of 22.2.2010/2.4.2014] in support of his contention that

the applicant has been acquitted by the concerned courts in

relation to the similar kind of offences. It is further argued that

during the course of investigation, the police had recorded the

statements of some of the witnesses to prove the allegation that

on a specific date the applicant was present in Jodhpur and made

certain phone calls with the intention to receive the haul of illegal

arms and explosive RDX, however, all those witnesses did not

support the prosecution story and turned hostile. It is, therefore,

prayed that in the facts and circumstances of the case, the

sentence awarded to the applicant is liable to be suspended.

Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of applicant-Jagmohan Singh

S/o Gurunam Singh and argued that the allegation against the

applicant is to the effect that he, under the instruction of terrorist

organization Babbar Khalsa of Punjab, went to Jodhpur for the

purpose of receiving haul of illegal arms and explosive RDX. It is

submitted that as the police have already failed their plan by

recovering the haul of illegal arms and explosive RDX then the

applicant returned back from Jodhpur. Learned Public Prosecutor

has submitted that though some of the persons, who earlier gave

(9 of 15) [SOSA-507/2021]

evidence during the course of police investigation regarding the

applicant have not supported the prosecution story but the

concerned Magistrate, who carried out the identification parade,

has clearly admitted in his statements recorded as PW-74 that the

witnesses have identified the applicant, who made phone calls at

Barmer to the co-accused persons for the purpose of receiving

haul of illegal arms and explosives. It is further submitted that the

applicant is involved in terrorist activities, for which he was put to

trial, and was acquitted due to lack of evidence but no clean-chit

was given to him.

Regarding Khanu Khan @ Khaniya S/o Maruf :-

Mr. B. Ray Bishnoi, learned counsel appearing for

applicant-Khanu Khan @ Khaniya S/o Maruf has submitted that

the applicant is in jail from last around 12 years. It is argued that

the trial court has grossly erred in convicting and sentencing the

applicant without there being any reliable evidence available

against him. It is further submitted that the allegations against

the applicant of receiving illegal arms and explosives are false. It

is also submitted that as a matter of fact the allegation of

receiving illegal arms and explosives is against co-accused persons

viz. Nazir S/o Meeru Khan and Soda Khan @ Sobar @ Luniya and

not against the applicant. It is, therefore, prayed that in the facts

and circumstances of the case, the sentence awarded to the

applicant by the trial court is liable to be suspended.

Per contra, learned Public Prosecutor has vehemently

opposed the prayer made on behalf of applicant-Khanu Khan @

Khaniya S/o Maruf and argued that the applicant is one of the

(10 of 15) [SOSA-507/2021]

persons, who was in receipt of the illegal arms and the explosives

smuggled by the smugglers of Pakistan. It is further submitted

that from the evidence produced by the prosecution before the

trial court, it is clear that huge quantity of explosives was

recovered by the police from the residential house of the applicant

and the same is evident from Exhibit-P/62, which has very well

been proved by the prosecution. It is further submitted that the

illegal arms and explosives, recovered from the residence of the

applicant could have been used for terrorist activities, which may

result in loss of life of hundreds of innocent persons.

Heard learned counsel for the parties and perused the

judgment passed by the trial court as well as the material

available on record.

As per the prosecution story, the police, on secret

information, came into action and laid a trap. As per the

information, accused - Soda Khan @ Sobar @ Luniya and other

companion may supply arms and explosive substance to some of

the members of terrorist organization operating in Punjab, which

may be used for terrorist activities in India and the said arms and

explosive substance including RDX were received from co-accused

Soda Khan @ Sobar @ Luniya and other from the smugglers of

Pakistan. The police party waited for the accused persons at

village Marudi, Gadara Road at Barmer for several hours, however,

they did not reach there. On 08.09.2009 at 08:00 AM, the police

again received an information that the accused buried the arms

and explosives alongside the road between village Marudi and

(11 of 15) [SOSA-507/2021]

Data. The police conducted a search and found a place from

where, it dugout some bags and recovered huge quantity of arms

cartridges and explosives. The first information report was lodged

against Soda Khan @ Sobar @ Luniya and others including

applicants - Nazir S/o Meeru Khan, Nazir Khan S/o Jiya Khan,

Jagmohan Singh S/o Gurunam Singh and Khanu Khan @ Khaniya

S/o Maruf. The police arrested certain persons on 13.09.2009 and

on their information, recovered another haul of arms on

13.09.2009 containing arms, ammunition and explosives RDX

from the house of accused - Soda Khan @ Sobar @ Luniya. The

information regarding arms was provided by applicant - Nazir S/o

Meeru and in his presence the same arms were recovered on

13.09.2009.

The police conducted thorough investigation and concluded

that huge quantity of arms and ammunition substance was

supplied by the smugglers of Pakistan across the border to

co-accused - Soda Khan @ Sobar @ Luniya and others. It was

also concluded that accused - Soda Khan @ Sobar @ Luniya and

some of the applicants were in contact with the smugglers of

Pakistan and on their instructions the said arms and explosives

were to be supplied to the members of terrorist organization

Babbar Khalsa of Punjab. The police also concluded that the

applicant - Jagmohan Singh S/o Gurunam Singh along with one

another person was supposed to receive the said arms and

explosives on behalf of terrorist organization Babbar Khalsa of

Punjab and for that purpose he came to Jodhpur but before that

he got the information that the police seized the arms and

ammunition, therefore, he returned from Jodhpur.

(12 of 15) [SOSA-507/2021]

To prove the charges against the applicants, the prosecution

produced bunch of evidence which includes the information

supplied by the accused persons regarding the arms and

ammunition hidden by them and on the basis of the said

information, recoveries of arms, ammunition and explosives were

made. The prosecution also produced evidence of this effect that

applicant - Nazir S/o Meeru provided information regarding arms

and explosives along with accused - Soda Khan @ Sobar @ Luniya

and on their information the same were recovered.

The prosecution produced the evidence against

applicant - Nazir Khan S/o Jiya Khan to the effect that he along

with co-accused - Soda Khan @ Sobar @ Luniya went to Barmer

in a Bolero Jeep with the arms and explosives with the intention to

supply the same to the members of terrorist organization Babbar

Khalsa of Punjab at Barmer, however, when they failed to reach

Barmer, the arms and ammunition were taken back and buried

into the ground from where the same were recovered by the

police on 08.09.2009.

The prosecution also produced the evidence before the trial

court that some quantity of the arms and explosives were taken

away by accused applicant - Khanu Khan @ Khaniya S/o Maruf,

however, a meeting took place between co-accused - Soda Khan

@ Sobar @ Luniya, applicants viz. Nazir S/o Meeru Khan, Mubarak

S/o Haji Hameer and others. As per the decision taken in the said

meeting, applicant - Khanu Khan @ Khaniya S/o Maruf returned

the arms and ammunition to co-accused - Soda Khan @ Sobar @

Luniya, however, the Pakistani shawl, in which the arms and

ammunition were packed, remained with applicant - Khanu Khan

(13 of 15) [SOSA-507/2021]

@ Khaniya S/o Maruf, which was recovered by the police on his

information along with three diaries.

To prove the presence of applicant - Jagmohan Singh S/o

Gurunam Singh at Jodhpur, the prosecution has produced some of

the persons as evidence enroute from Punjab to Jodhpur such as

STD Booth owner, Dhaba owner and employees, who identified

applicant - Jagmohan Singh S/o Gurunam Singh in an

identification parade conducted in the presence of concerned

Magistrate PW-74, however, during the course of trial, those

witnesses did not support the prosecution story and turned hostile

but they admitted their signatures on the Identification Parade

Memo. The concerned Magistrate PW-74 in his evidence before the

trial court has verified the identification parade conducted by him

wherein witness - Jagdish and Mahesh identified

applicant - Jagmohan Singh S/o Gurunam Singh.

So far as applicant - Mubarak S/o Haji Hameer is concerned,

though the witnesses, who gave their statements before the police

that the mobile SIMs were used by applicant - Mubarak S/o Haji

Hameer, did not support the prosecution story and turned hostile

but the trial court relying on the information given by

applicant - Mubarak S/o Haji Hameer to the police and the

corroborating evidence available on record, found

applicant - Mubarak S/o Haji Hameer guilty.

The police preserved the foot moulds, which were taken from

the place, where the huge quantity of arms and explosives were

recovered on 08.09.2009 and compared them from the foot

moulds of co-accused - Soda Khan @ Sobar @ Luniya and

(14 of 15) [SOSA-507/2021]

applicant - Nazir Khan S/o Shri Jiya Khan and the same were

found matched.

The trial court after taking into consideration the said piece

of evidence has held the accused applicants guilty. The trial court

has also taken into consideration the fact that earlier also some

cases were filed against the applicants in relation to the similar

type of offences. It is true that in those cases, some of the

accused persons were either acquitted or discharged but the facts

remain that those cases were filed against them for similar type of

offences.

So far as applicants viz. Nazir S/o Meeru Khan, Jagmohan

Singh S/o Gurunam Singh and Khanu Khan @ Khaniya S/o Maruf

are concerned, they are behind the bars from around 12 years but

looking to the fact that a huge quantity of arms and explosives

was recovered in the matter, which could have been used for

terrorist activities in the nation to threaten the sovereignty and

integrity of the country, the sentence awarded to them by the trial

court cannot be suspended merely on account of their custody

period.

So far as the sentence served by applicants viz. Nazir S/o

Meeru Khan and Mubarak S/o Haji Hameer is concerned,

applicant - Nazir S/o Meeru Khan has served only 5 years of

sentence and applicant - Mubarak S/o Haji Hameer has served

around 2 years of sentence till date and as such the argument

regarding long period of custody is not available to them.

After carefully scrutinizing the record of the trial court and

taking into consideration the totality of the facts and

(15 of 15) [SOSA-507/2021]

circumstances of the case, we are not inclined to suspend the

substantive sentence awarded to the accused applicants.

Accordingly, these application for suspension of sentence

preferred on behalf of the applicants are rejected.

                                   (ANOOP KUMAR DHAND),J                                   (VIJAY BISHNOI),J




                                    Abhishek Kumar










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