The State Of Maharashtra vs Sayeed Mohd. Hanif Abdul Rahim

The State of Maharashtra .. Appellant (Ori. Complt.) versus

1. Sayeed Mohd. Hanif Abdul Rahim, 2. Ashrat @ Arshad Shafiq Ahmed Ansari, 3. Fehmida w/o Sayyed Mohd. Hanif .. Respondents (Ori.Accused Nos.1 to 3) WITH

CRIMINAL APPEAL NO.880 OF 2009

Sayyed Mohd. Hanif Abdul Rahim, Oc.Rikshaw Driver, R/o.D/7, Salim Chawl, Chimatpada, Marol Naka, Andheri (W),

Mumbai-400 059. .. Appellant (Presently lodged at Nagpur Central Prison (Ori.Accused No.1) convicted prisoner in the present matter).

versus

The State of Maharashtra .. Respondent (At the instance of DCB, CID, Mumbai)

WITH

CRIMINAL APPEAL NO.857 OF 2009

Ashrat @ Arshad Shafiq Ahmad Ansari Age 32 years, Plot No.515, Junnat Nagar, C.D.Barfiwala Marg, Andheri (W), Mumbai 400 058.

Presently in Judicial Custody .. Appellant Mumbai Central Prison (Arthur Road Jail), (Ori.Accused No.2) Mumbai.

versus

The State of Maharashtra .. Respondent (Through : DCB, CID Unit-VIII)

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WITH CRIMINAL APPEAL NO.1128 OF 2009

Fehmida w/o Sayyed Mohd. Hanif, Age 43 years, Occ. Housewife,

R/o.D-7, Salim Chawl, Chimatpada, .. Appellant Marol Naka, Andheri (E), Mumbai-400 059. (Ori.Accused No.3) (At present in Yerawada Central Prison).

versus

The State of Maharashtra .. Respondent (At the instance of DCB , CID, Mumbai)

WITH CRIMINAL APPEAL NO.4 OF 2009

The State of Maharashtra .. Appellant

versus

1. Mohd. Hasan Mohd. Anas Shaikh @ Hasan Bateriwala, Near Nurul Islam Masjid, Sanjay Nagar,

Hill No.3, Ghatopkar (W), Mumbai.

2. Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladoowala, Rajiv Gandhi Nagar, Burma Shell Line,

Near Gulistan Madarasa, Kurla (E), Mumbai. .. Respondents (Ori.Accused Nos.4 & 5) WITH WRIT PETITION NO.2539 OF 2008

The State of Maharashtra Petitioner (Ori.Opponent) versus

1. Mohd. Hasan Mohd. Anas Shaikh @ Hasan Bateriwala , Near Nurul Islam Masjid, Sanjay Nagar, Hill No.3, Ghatkopar (W), Mumbai.

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2. Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladoowala, Rajiv Gandhi Nagar, Burma Shell Line,

Near Gulistan Madarasa, Kurla (E), Mumbai.

Respondents (Ori Accused Nos. 4 & 5)

APPEARANCES :

Ms.Poornima H. Kantharia, A.P.P. a/w Shri J.P.Yagnik, A.P.P. for State (Appellant in Conf.Case No.5/2009, Petitioner in W.P.No.2539/2008, Appellant in Cri.Appeal No.4/2009, and Respondent in Cri.Appeal Nos.880/2009, 857/2009 and 1128/2009).

Shri Khan Abdul Wahab for ori.accused no.1 (Respondent no.1 in Conf.Case

No.5/2009 and Appellant in Cri.Appeal No.880 of 2009).

Shri Sushan Kunjuraman and Shri Mahesh Kadam for ori.accused no.2,

Respondent no.2 in Conf.Case No.5/2009 & Appellant in Cri.Appeal No.857/2009).

Shri Sudeep Pasbola a/w Ms.Maharukh Adenwalla i/by Rahul Arote for ori.accused no.3 (Respondent no.3 in Conf.Case No.5/2009, Appellant in

Cri.Appeal No.1128/2009).

Shri Sharif Shaikh for ori.accused nos.4 and 5 (Respondent nos.1 & 2 in W.P.No.2539/2008 & Appellant in Criminal Appeal No.4/2009).

CORAM : A.M.KHANWILKAR AND P.D.KODE, JJ. DATE OF RESERVING : NOVEMBER 12, 2011. DATE OF PRONOUNCING : FEBRUARY 10, 2012.

JUDGMENT ( PER : P.D.KODE, J. )

1. All the aforesaid proceedings arise out of either-

(a)Report/Direction dated 10th May 2005 given by Review Committee constituted under section 60 of Prevention of

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Terrorism Act, 2002 (hereinafter referred as "POTA") as amended by Prevention of Terrorism (Repeal) Act, 2004

(hereinafter referred as "Repeal Act") or;

(b)Order dated 17th November, 2008 passed on Exh D-116 in POTA Special Case No.1 of 2004 during the midst of trial

after evidence of both the sides at trial was over or;

(c)Final judgment and order delivered on 6th August, 2009

in POTA Special Case No.1 of 2004 of the Special Court

under POTA Act for Greater Mumbai.

2. The said POTA Special Case No.1 of 2004 was registered on

the basis of charge sheet filed on 5th February 2004, by Chief

Investigating Officer (PW 103) ACP Suresh Walishetty at the

conclusion of investigation of four crimes for commission of offences

under section 120-B read with sections 302, 307, 326, 324 of IPC

under sections 3,4,5 of Explosives Substances Act, 1908 and under

sections 5 and 9 (b) of Indian Explosives Act, 1884 and under sections

3,4,5 and 20 of Prevention of Terrorist Act, 2002 against in all six

named accused in the charge sheet along with wanted accused Shafakat

Ali, Khalid Maqsood, Jehangir, Bilal, Samiullah and Rehman.

3. During the pendency of the case, pursuant to the prosecution

Application dated 5.5.2004 at Exh-P, under section 307 of Code of

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Criminal Procedure (hereinafter referred to as `the Code'), Jehangir

Patne (numbered as accused no.4 in the said charge sheet) was

accorded pardon and was subsequently examined as an Approver PW2

at the trial.

4. Accordingly, charge as described in detail in Exh-P5, was

framed at said trial on 23rd June 2004, for commission of various

offences under IPC, Explosives Substances Act, Indian Explosives Act,

Prevention of Terrorist Act, and Damage to Public Property Act, etc.

against remaining five accused named in the charge sheet. While

framing the said charge Mohd. Hasan Mohd. Anas Shaikh @ Hasan

Batterywala numbered as accused no.5 and Mohd. Rizwan Mohd.

Issaq Ansari @ Rizwan Ladduwala numbered as accused no.6 in the

charge sheet, were renumbered as accused nos.4 and 5 respectively

(who are hereinafter referred to as `A4 and A5').

5. After evidence of both the parties was adduced at the trial,

Review Committee constituted under section 60 of POTA as amended

by Repeal Act, gave hearing to said accused A1 to A3, A4 and A5 and

their counsel as well as to the learned Public Prosecutor. After

examining the Police Report comprised of statements of witnesses,

seizure memos and other material, the said Committee on 10th May

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2005 opined that the said A4 and A5 were not found connected with

the incident of terrorism in the four bomb blast cases and therefore

there is no basis for their prosecution under POTA. However, A1 to

A3 and PW2 (numbered as accused no.4 in the charge sheet) were

prima facie connected with offences under POTA and therefore, there

appears no misuse of power in invoking POTA against them. The said

Committee therefore directed State of Maharashtra to proceed as per

Clause (a) of sub-section (3) of Section 2 of Repeal Act qua the said

A4 and A5.

6. Thereafter, said A4 and A5 preferred MA No.42 and MA

No.44 of 2005 to invoke Section 60 (7) of POTA and to discharge

them from the said case. The same were rejected by the Special

Judge, POTA Court Mumbai vide order dated 11th August 2005. A4

preferred Criminal Appeal No.783 of 2005 while A5 preferred

Criminal Writ Petition No.2363 of 2005 before this Court challenging

the said order. Both the said proceedings were disposed of by this

Court by order dated 24th October 2005. This Court held that the said

A4 and A5 cannot be discharged directly merely on the basis of

opinion of the Review Committee. The Court directed the prosecution

to file an application for withdrawal of the case against A4 and A5

under section 321 of the Code.

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7. On 18th November, 2005 A4 and A5 filed application

Exh.D-54 before POTA Court to call upon Special PP to inform the

Court whether he intends to make an application as directed by this

Court vide order dated 24th October, 2005. In response to the said

application, on 24th November, 2005, Special Public Prosecutor filed

application P-319 for recalling PW8 for further examination-in-chief

on account of new material being introduced during his cross-

examination. In the said application P-319, it was contended that the

same had become necessary in view of direction given by this Court to

take out an application under Section 321 of Cr.P.C. It was further

contended that the same was necessary as Special PP had to formulate

his opinion about existence or non-existence of prima facie case under

POTA against A4 and A5 for making an appropriate application as

directed by this Court.

8. By the common order, passed on 29th November, 2005, on

application Exh.P-319 and Exh.D-54, the POTA Court kept the

prayer for recall of PW8 for consideration after prosecution examines

all the witnesses excepting the investigation officer, as ordered earlier

by the said Court upon the earlier application. On 5th December,

2005 Special Public Prosecutor for the matters stated in the application

submitted that it was not desirable at all to apply for withdrawal from

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prosecution under POTA against A4 and A5. Ultimately on 3rd

January, 2006 the learned Special PP preferred application Exh.P-343

under Section 321 of the Code stating that for the matters stated

therein, after giving due weightage to the observations and

recommendations of the Central POTA Review Committee, he is of

opinion that there is prima facie case under POTA against A4 and A5.

9. During the hearing of Exh.P-343 and Exh.D-54 and while

passing common order thereon, on 17th January,2006, the POTA

Court was required to adjourn the matter in view of the Advocate for

A4 and A5 had sought time and the POTA Court continued hearing

and passing of the order on 23rd January, 2006. By the order

completed on the said date, POTA Court, for the reasons stated therein,

disposed of the said application. The POTA Court held that, no case

for withdrawal under Section 321 of the Code was made out.

10. A5 preferred S.L.P. No. 187 of 2006 before the Apex Court

against the order of this Court dated 24th October, 2005 contending

that in the light of report of Review Committee, he ought to have been

discharged without following the procedure as laid down under section

321 of the Code. After grant of leave, the said S.L.P. was numbered as

Criminal Appeal No. 359 of 2006. The same was clubbed along with

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the other matters of accused persons from Godhara Fire incident. It

was later on disposed of by the Apex Court vide order dated 21st

October 2008 with following observations in paragraph 51.

"We therefore hold that once the Review Committee on review under section 2(3) of the Repealing Act, expresses the

opinion that there is no prima facie case for proceeding against the accused, in cases in which cognizance has been taken by the Court, such cases shall be deemed to have been withdrawn. The only role of the Public Prosecutor in the matter is to bring to the notice of the Court, the direction of

the Review Committee. The Court on satisfying itself as to whether such an opinion was rendered, will have to record

that the case stands withdrawn by virtue of section 2(3) of the Repealing Act. The Court will not examine the correctness or propriety of the opinion nor exercise any supervisory jurisdiction in regard to such a opinion of the Review

Committee. But we make it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the Court where the proceedings were pending, will continue with the case as if there had been no such opinion."

11. Relying upon the said observation, A4 and A5 preferred

Application Exh.D-116, for exonerating them from the charges

framed against them on the basis of report given on 10th May 2005 by

Review Committee of POTA. That application was allowed. It is held

that prosecution against said A4 and A5 is deemed to have been

withdrawn as per clause (a) of sub-section 3 of section 2 of Prevention

of Terrorism (Repeal) Act, 2004. Thus, the said A4 and A5 were

ordered to be released if otherwise not required to be detained in

connection with some other case, with further rider that the case

against the said accused would be revived in the event of this court

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setting aside the said opinion given by Review committee on POTA in

a writ proceeding preferred by aggrieved party.

12. The prosecution on 2nd December 2008 preferred above

referred Writ Petition No.2539 of 2008 for quashing and setting aside

the direction given by the POTA Review Committee on 10th May

2005. Similarly, on 22nd December 2008 the prosecution preferred

above referred Criminal Appeal No.4 of 2009 under section 378(1) of

the Code against the order dated 17th November 2008 discharging A4

and A5.

13. In view of the deemed withdrawal of prosecution against A4

and A5 and their consequent release from the case, POTA Special Case

No.1 of 2004, thereafter, proceeded against the remaining accused i.e.

accused no.1 Syed Mohammed Hanif Abdul Rahim, accused no.2. Ashrat @

Arshad Shafiq Ahmed Ansari and accused no.3 Fehmida wife of accused no.1

Syed Mohammed Hanif. At the conclusion of the said trial, the learned trial

Judge held that out of the charges framed against said A1 to A3, each of them

was guilty for commission of offences as described in the table given

hereinbelow and sentenced each of them for respective offence for which they

were found guilty, as stated in the third column against the respective offence

mentioned in second column of the said table :

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Sr.No. Found guilty and Sentence awarded for the same Or the convicted for the count of offence of

charge

1. 120B of IPC Death & fine Rs.5000/- I.d.R.I.for 2 yrs each.

2. 120B r/w 302 IPC Death & fine Rs.5000/- I.D.R.I.For 2 yrs each

3. 120B r/w & 307 IPC Life and fine Rs.5000/- I.d. R.I.For 5 yrs

4. 120B r/w sec .427 R.I.for 2 yrs IPC

5. 120B r/w sec,.3 (2)(a) R.I. For 2 yrs of POTA Act

6. Sec.3 (3) of POTA Imprisonment for life fine Rs.5000/-

Act I.d.R.I. for 2 yrs

7. Offence punishable Imprisonment for life.

u/s 4(b) of POTA Act

8. Sec.5 r.w. 9(B) of R.I. for two years

Explosives Act 1884.

9. Sec.3 of Explosives Imprisonment for life Substances Act,1908

10. Sec.4 of Explosive R.I. For 20 yrs Substances Act.

11. Section 3 of R.I. For 5 yrs fine Rs.1000/-I.d.

Prevention of R.I.for 6 months Damage to Public

Property Act, 1984

12. Sec.4 of Prevention of 7 yrs fine Rs.2000/- I.d. R.I. 6 damage to public months.

Property Act, 1984

However, by the same judgment and order, the learned trial

Judge also came to the conclusion that the said accused were not guilty

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for the remaining offences for which they were charged and acquitted

them from the said charges framed against them.

14. The reference made by the learned trial Judge for

confirmation of death sentence given to each of the aforesaid accused

has given rise to above stated confirmation case No.5 of 2009.

15. Accused no.1 has challenged the judgment and order

convicting and sentencing him by preferring Criminal Appeal No.880

of 2009. While Accused no.2 has challenged the judgment and order

convicting and sentencing him by preferring Criminal Appeal No.857

of 2009. While Accused no.3 has challenged the judgment and order

convicting and sentencing her by preferring above stated Criminal

Appeal No.1128 of 2009.

16. The said charge sheet giving rise to registration of said

POTA Special Case no. 5 of 2004 was submitted by Chief

Investigating officer ACP Shri.Walishetty (PW 103) at the end of

investigation of four different crimes registered with four different

police stations regarding an attempt to commit explosion and three

explosions committed by using the bombs within the area under

concerned police station. For the sake and convenience necessary

details regarding the same can be tabulated as under :-

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Sr. Attempt or Bomb Date & Crime For Offences Effect of No. Explosion planted Time No.regd with under incident/ at in of police Stn. explosion

incident upon FIR of

1. Seepz bus BEST 2ndDec, C.R.No. Indian Penal Nil as bomb Depot Bus 2002 400/2002 of Code,Explosives was defused MIDC no.MH01 at 21.40 MIDC police Substances before (Attempt) - 8765 of hrs station Act,Indian explosion Route API Tanaji Explosives Act.

No.336 Jadhav PW-

63 2. Karani BEST 28thJuly, C.R.No. ..do..and also 2 persons lane, LBS Bus 2003 . 235/03 Prevention of killed, 60 junction No.MH-0 21.10 hrs Ghatkopar Damage to Public passengers Ghatkopar 1-H-8246 police Stn. Property Act. were injured

Route no. Bus 2 auto 340 ig conductor rickshaw and 2 Dilip motor cycles Wankhede and several PW 54 shops damaged of

public and private property of value to the tune of Rs.

16.30 lacs 3. Zaveri Motor 25th C.R.No. Penal Code & 36persons

Bazar near taxi August, 201/03 Indian Explosives killed, Mumbadevi No.MH-0 2003 at of L.T. Marg Act. 138 were temple 2-R-2022 12.40 hrs Police Stn. injured, another taxi property worth driver Shri. of 95 lacs

Lalsaheb including 41 Singh PW- vehicles shops, 27 and residential houses were damaged. 4. Gateway Motor 25th C.R.No. Penal Code, 16 persons

of India, Taxi August, 206/03 of Explosives killed, Opp.Taj MH-02- 2003 at Colaba Substances Act, 46 injured, Mahal R-2007 13.05 police Explosives Act, 20 cars Hotel hrs station P.C. Prevention of damaged, Camilo Reis Damage to PW 14. Public Property Act and POTA Act.

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17. In all 54 persons were killed and 244 persons were injured

and the property worth Rs. 1,60,00,000/- was damaged in said three

incidents of explosion caused by means of bombs. Investigation in the

above four C.Rs. registered at concerned police stations were initially

carried out at the said Police Stations. However, no clues regarding

culprits involved in crime registered with MIDC as well as Ghatkopar

Police Station was forthcoming even until occurrence of incident of

explosion at Zaveri Bazar and at Gateway of India and or until the A2

was arrested during the investigation of crime registered with

Ghatkopar Police Station on 31st of August, 2003. For the sake of

convenience the details pertaining to the initial investigation are

narrated while considering the prosecution evidence regarding

respective incidents. The investigation of the said four crimes

registered at the said police stations was afterwards taken over by the

Crime Branch by registering crime number of DCB CID as shown in

the table given below :

Sr. Original CR Number registered with Police DCB CID CR Nos.

No. Station 1 C.R. No.400/02 of MIDC Police station CR 157 of 2003 2 C.R.No.235 of 2003 of Ghatkopar Police CR No.75 of 2003 Station 3 C.R.No.201 of 2003 of L.T.Marg Police CR No.91 of 2003 Station 4 C.R.No.206 of 2003 of Colaba Police Station CR No.86 of 2003

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ARREST OF ACCUSED

NOS.1, 2 & 3 :-

18. Upon receipt of secret information Police Officers of DCB

CID of Unit-XI regarding the suspicious behaviour of Accused No.2

Ashrat (hereinafter referred to as `A2'), A2 was apprehended by the

team of Police Officers consisting PI Savde, PSI Talekar (PW-98),

PSI Kandalgaonkar (PW-99), PSI Vankoti (PW-97), PSI Toradmal

(PW-51) and the staff members on 31.8.2003 at about 15:30 hrs. A2

was thereafter extensively interrogated by said Police Officers and

during interrogation clue was received regarding his involvement in

planting of bomb in Ghatkopar BEST Bus. A2 was then formally

arrested at about 20:20 hrs. by PSI Todarmal (PW 51). Under arrest

cum seizure memo (Exh. P-385) prepared in presence of panchas

Mukund Ingrulkar (PW-50) and Shri Vijay Kadam, the articles found

during the personal search of A2 were seized.

19. The said articles seized during the search were i)motor

driving licence in name of A2 Ashrat Ansari Shafiq Ahmed Ansari.

ii)identity card issued by Janata Party in the name of A2 as member

of said party. iii)Four paper cuttings of Urdu News paper. iv)A white

paper chit bearing some matter in Urdu language on one side and the

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telephone No. 6391553 on other side. v)a white paper chit bearing

the name of Jahid Yusuf Patni (APPROVER PW-2) with his e-mail

address shaabadahmed@yahoo.com. vi)A visiting card of Noor

Electricals owned by S. M. Hanif (Accused No.1) and A.B. Shaikh

with the Mobile No. 9892077831-9892451164 of Nasir and Land-

line No. 28527761 of Hanif mentioned on the overleaf of the above

visiting cards. vii)Seven passport size photographs, cash amount of

Rs. 2,200 and other miscellaneous articles.

20. A.2, thereafter, during the interrogation effected in the

Office of Unit No.XI situated at Kandivali, gave clue that A2 along

with his associates i.e. deceased accused Nasir, A1 and A3-wife of A1

had prepared bombs and placed the same in BEST bus of Route No.

336 on 2.12.2002 at Seepz and in a BEST bus of Route No. 340 at

Ghatkopar on 28.7.2003. He also made a statement revealing his

willingness to show the place where the remaining material out of

material used for preparing Bomb was kept by him. The same was

recorded as (Exh. P-393). A2 thereafter led Police Officers and

panchas towards his house on first floor of the hutment in Juned Nagar,

Juhu Galli, Andheri (West), Mumbai, entered in the room and

produced a tin box kept below the cot which contained 30 gelatin

sticks, 3 alarm clocks, and 8 detonators. The same were seized by PSI

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Vankoti (PW-97) in presence of panchas Sunil Bhatia (PW-53) and

Sameer Sayar vide panchnama (Exh.P-393-A).

21. After returning to the office of DCB CID Unit-XI along with

said panchas and police A2 again informed the Police Officers that he

would show them the place where the bombs were prepared by him

and his associates. A2 thereafter led police officers and panchas

towards the house of A1 Hanif and A3 Fehmida situate at Salim

Chawl, Room No. D-7, Chimat Pada, Marol, Andheri (East), Mumbai.

A1 & A3 were in the said house along with their two daughters

Farheen and Sakira. A2 Ashrat led Police Officers and panchas

towards loft of the room where bombs were prepared by him and his

associates. Police Officers thereafter took search of house of A1 and

from the cupboard seized about ten documents/articles.

22. The same were i) passport of A1 bearing No. Q-548661,

dated 15.10.80 issued by Mumbai Passport Office. ii) Passport in the

name of A1 bearing No. P-468148, dated 11.9.93 issued by Jeddah

Passport Office. iii)Passport in the name of A3 bearing No.A-3581902,

dated 6.8.97 issued by Mumbai Passport Office. iv) Passport in the

name of Farheen Mohd. Hanif Sayyed (daughter of A-1 & A-3)

bearing No. A-3525401, dated 6.8.97 issued by Mumbai Passport

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Office. v) Passport in the name of Irfan Hanif Mohd. Sayyed (son of

A-1 and A-3) bearing No. A-3527645, dated 8.8.97 issued by Mumbai

Passport Office. vi) Photo identity card of a person resident of Philton,

Dubai, Jumeria.vii) Visiting card of Arun Vaswani mentioning the

phone numbers of Chetan, Ashwin, Masjid, Ashrat Shafiq Ansari,

Shiraj Electricals on the overleaf of the card. viii) Visiting card of Aziz

in the name of Mumbai Motors and the name of Nasir and his Mobile

No. 9892451164 mentioned on its overleaf. ix) Visiting card of Noor

Electrical owned by S.M. Hanif and the name of Nasir with his Mobile

No. 9892077831 mentioned overleaf. x) Wallet containing cash of

Rs.127 and driver badge of Cab bearing No. 62652.

23. A2 thereafter pointed a water tank adjacent to North-East

wall of the home of A1 and one gunny bag containing some material

kept near the water tank. On opening the said gunny bag, it was found

containing i) 125 aluminum clips kept in one cloth bag of Khaki

colour. ii) soldering machine along with plug and wire. iii) 9 alarm

clocks in various sizes of Fengseng Co. iv) one clipper of Super Eagle

Co. (12 m.m.) v) One polyester Filament Yarn role of white colour. vi)

One solder wire role. vii) One Polyester Yarn fitting machine (Super

eagle make.). Viii) 16 crackers of red colour.

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24. One cardboard box was also found kept on the mezzanine

floor. On opening the same, it was found containing 117 gelatine

sticks with "Nobel Gel-80 necl Hingani Vardha" mentioned on each

stick. So also one corrugated box wrapped in cloth was found kept

on the water tank and on opening was found containing 12

electronic detonators. All said articles were seized by Police in

presence of panchas vide panchnama (Exh. P-394-A) which was

concluded at about 2.35 hrs. on 1.9.2002. A1, his wife A3 and their

daughter Farheen were arrested in connection with BEST Bus Bomb

Explosion Case of Ghatkopar registered vide C.R. No.75 of 2003 under

custody memo. The arrested accused persons along with the seized

articles were taken to the office of DCB CID, Unit XI at Kandivali.

25. After taking some rest after reaching Office of Unit No.XI,

A1 led Police Officers to the place where the gelatin sticks were

hidden by him. He had taken police officers and panchas towards

Chimat Pada, in a lane near Maheshwari Hotel and pointed out Room

No. 14 in Salim Chawl which was found locked. A1 Hanif opened the

lock with the key in his possession and entered the room. He was

followed by police officers and panchas. A1 took out yellow coloured

gunny bag which was kept below the cot and 58 gelatin sticks were

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found in the bag and the said sticks came to be seized vide panchnama

(Exh.P-395A)

26. After arrest of A 1 to 3 they were produced before Special

Court on 1-9-2003. At that time A 1 made complaint of ill-health and

he was thereafter taken to Bhabha Hospital at Bandra for medical

treatment and after getting discharged from the hospital he was

produced before the Special Court on 2-9-2003. He was later on

remanded to Police custody till 15-9-2003. On 1-9-2003 A2 and A3

were already remanded to the police custody by special court. Since it

was revealed from the school record of Accused Farheen (daughter of

A-1 and A-3) that she was minor at the time of commission of offence,

she was produced before the Juvenile Court at Dongri, Mumbai.

27. Accused No.2, during his interrogation by ACP Shri

Walishetty (PW-103) Investigating into the offence of Ghatkopar

BEST bus bomb blast, disclosed that he himself, A1, wife of A1 i.e.

A3 and their daughter Farheen were involved in the offence of bomb

blasts. A2 on 4-9-2003 expressed his willingness to give confession.

The same was apprised by IO Shri Walishetty to Joint C. P. (Crime)

who directed DCP Shri Vinod Lokhande (PW-88) of Zone-X to record

the confession of Accused No. 2 Ashrat.

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28. On 11-9-2003, PW-103 produced A2 before PW-88 DCP

Zone-X. He complied with the formalities of recording confession

amongst other explaining A2 that he was not bound to make confession

and if A2 makes the same it could be used against him. A2 was given

24 hours time for reconsideration of his decision to make the

confession and in the meantime A2 was lodged in the lock-up of

Bandra-Kurla Complex Police Station. A2 was produced on the next

day i. e. on 12-9-2003 before PW-88 and he was again apprised by

PW-88 that he was not bound to make the confession and if he makes

the confession, the same would be used as evidence against him. Upon

such appraisal, A2 stated that the time given to him for reconsideration

was sufficient and he reiterated his desire to make the confession.

Confession of A2 was thereafter recorded by PW 88 - Exh.501A. A 2

was then produced before Chief Metropolitan Magistrate on the same

day i. e. on 12-9-2003 and his separate statement confirming that his

confession was recorded by C. M. M. A 2 in the said confession gave

all necessary details pertaining to the role played by him and his

associates in the bomb blasts at Ghatkopar, Mumbadevi and Gateway

of India.

29. Prior to occurrence of bomb explosion near Mumbadevi

Temple at about 12.40 hours A2 had communicated to deceased

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Accused Nasir on his Mobile 9892451164 through STD booth of

PW-28 Dilip Yagnik on telephone No. 65389009 that he had kept the

goods in the taxi near Mumbadevi Temple and work will be done.

Exh. P-284 is the print out of the above call.

30. Accused Nasir had purchased SIM card of Airtel bearing No.

9892451164 from a shop i. e. Raj Electronics at Marol. Delivery

challan as well as enrollment form to such effect i.e. Exh. P-276 and

Exh. P-278 respectively were collected by IO. Accused Nasir had also

purchased another SIM card of Airtel bearing No. 9892077831 from

Karishma Electronics at Marol. Exh. P-275 is challan of the said

purchase. PW-5 Ashok is the proprietor of Karishma Electronics and

PW-4 Anil is the owner of the Raj Electronics. Their statements were

recorded by IO.

ENCOUNTER INCIDENT 12th September, 2003

31. Police Officers in search of wanted accused Nasir received

the information that the said accused along with his associates was

likely to come near Ruparel College in a Maruti-800 car with Arms,

Ammunitions, and Explosives on 12th March 2003. PSI Sachin

Kadam (PW-1), API Ahir, PSI Sabnis along with other staff went to

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the said place at Matunga (West) on the said day and laid a trap. As

accused Nasir driving a Blue coloured Maruti-800 came at the said

spot, the Police Officers asked him to stop the same. However, he paid

no heed to the same and persons in the car started firing from the

revolvers towards the Police. PW-1 Sachin Kadam was compelled to

open firing in retaliation upon Nasir and his associates due to which

Nasir and his associates Hasan Habib sustained injuries. Both of them

were taken to KEM Hospital in mobile van but they were declared

brought dead by the doctors. 92 Gelatin Sticks, 8 Detonators, 2

Alarm Clocks and wire cutter were found in the said Maruti-800 car

bearing No.BLM-6184.

32. LAC Case No.487 of 2003 for the said contraband material

found in the said van and seized and a separate Crime No.225 of 2003

regarding said encounter incident was registered at Shivaji Park Police

Station. The said Maruti car along with explosives therein was seized

by the said Police Station at the time of preparing inquest panchanama

Exhibit-P-254. Two revolvers, mobile phone, two SIM cards, two

credit cards, two driving licences, election cards and some chits were

found on the dead body of Nasir and the same were seized.

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Recording of Confessions of A1 & A3

33. A1 and his wife A3 while in Police custody on 16th

September 2003 expressed willingness to give the confession. Joint

Commissioner of Police (Crime) directed DCP Shri Lokhande

(PW-88) to record confession of A1 and DCP Ms. Archana Tyagi

(PW-90) was directed to record confession of A3.

34.

On 22nd September 2003, PW-88 complied with the

formalities for recording confession of A1 and on the same day

recorded first part of his confession (Exhibit-P-501). Similarly, after

following necessary procedure on 24th September 2003, PW 88

recorded the confession of said accused. Thereafter, on 25th

September 2003, A1 was produced before the Chief Metropolitan

Magistrate and his statement (Exhibit-P-623) was recorded by the

Chief Metropolitan Magistrate. Thereafter, confession of A1 was

forwarded to POTA Court on 26th September 2003 vide covering

letter Exhibit-506-B.

35. On 22nd September 2003, PW-90 complied with the

formalities for recording confession of A3. She recorded first part of

her (A3) confession (Exhibit-P-522). PW-90 again took further

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proceedings on 24th September 2003 for recording confession of A3

produced before her and recorded second part of her confession

(Exhibit-522-A). A3 was thereafter produced before CMM on 25th

September 2003 and her statement regarding the confession was

recorded by the CMM and along with the same her confession was

forwarded to the POTA Court.

36. During the investigation, it was noticed that the arrested

accused persons and their associates were involved in the commission

of the above four offences. Considering the magnitude of the offences

and nature of the criminal conspiracy hatched Joint Commissioner of

Police (Crime) Shri Satyapal Singh appointed ACP Shri Suresh S.

Walishetty (PW-103) as Chief Investigating Officer to do the

investigation in connection with all the four offences of bomb blasts

and the officers of the concerned Police Stations were directed to

assist Shri Walishetty in the investigation. A1 to A3 were lodged in

Mumbai Central Prison.

37. SEO Shri Waman Sapre (PW-52) on 1st October 2003 at

Mumbai Central Prison conducted the test identification parade of A1

to A3. PW-6 Anil Mulchand Vishwakarma, a carpenter by profession

was witness in resepct of Ghatkopar incident. He identified A2 and

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A3 being the persons with whom he had quarrel while getting down

from the BEST bus route no.340 at Marole Pipeline Stop while he

was returning to Ghatkopar from Andheri. Exhibit-P-389 is the

memorandum of the said parade prepared by SEO PW-52.

38. PW-52 held another identification parade at Mumbai

Central Prison on 11th October 2003 for A1 and A2 in connection

with Ghatkopar incident. Mr.Dilip Wankhede (Conductor of the bus)

(PW-54) identified A2 at the said parade as being the person who had

boarded the BEST bus route no.340 at Andheri bus stop along with

one Burkha Clad Lady with her face uncovered to whom he had

issued ticket for Asalpha bus stop and the person who had taken the

seat along with the said lady at the rear side of the bus. Further

identification parade for A3 on the same day was held at Byculla

District Prison (where she was shifted) by the same witness. At the

said parade PW-54 identified A3 as being the Burkha Clad woman

with face uncovered who had boarded the BEST bus of route no.340 at

Andheri stop along with the person who had taken BEST bus ticket for

Asalpha stop. Exhibit-P-391 is memorandum prepared of the said

parade held at Arthur Road and Byculla Prison.

39. The Special Metropolitan Magistrate Shri Madhukar Bodake

(PW-18) on 6th February 2003 conducted the identification parade

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for A1 and A2 at Mumbai Central Prison in connection with CR No.

206 of 2003 of Colaba Police Station (Gate Way of India incident).

The witnesses Nafiz Ahamed Khan (PW-19), Shivnarayan Pande

(PW-15) and Ramchandra Shitalprasad Gupta (PW-20) participated in

the said parade. On 25th July 2003 A1 had been to the house of A2

and the rickshaw was wrongly parked by A1 in front of the shop of

PW-19 and on that count there was a quarrel between A1 and the said

PW-19. PW-19, the owner of a garment factory at Juhu Lane,

Samata Nagar, Andheri (W), Mumbai near the residence of A2 and had

seen A1 many times coming to the house of A2, identified A2 in the

said parade as being the person residing adjacent to his shop since

long and was friend of A1.

40. PW-15 Shivnarayan Vasudev Pandey was the owner of the

taxi bearing No. MH-01-R 2007 and was driving his taxi in Mumbai

since the year 1982. Encountered accused Nasir on 24th August 2003

had engaged the said taxi when parked opposite Amber Oscar Cinema

Hall at Andheri. He had engaged the said taxi for Rs.600/- for going to

the places such as Haji Ali, Hanging Garden, Aquarium, Gateway of

India and Rani Baug and the said taxi was brought by PW 15 with the

said accused at Azad Galli, Andheri (W0. Thereafter, Nasir A-1, wife

Fehmida and their two daughters had travelled in the said taxi from

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Azad Galli to Colaba for visiting places and returned and A1, his wife

Fehmida and their two daughters travelled in the said taxi of PW-15

Shivnarayan Pandey again on 25-8-2003 from Azad Galli, Andheri

(West) to Colaba. A1 had kept one airbag in the dickey of the taxi and

asked the taxi driver to take the taxi towards Arthur Bunder Road at

Colaba and to park the said taxi in front of Hotel Taj in pay & park

site. The same accused had instructed the witness to stay in the taxi till

the arrival of A1 and his family members. PW-15 Shivnarayan

identified A1 in the above parade saying that he was the same person

who put his airbag in the dickey of the taxi and asked him to take the

taxi towards Arthur Bunder Road at Colaba and park the same in front

of Hotel Taj in pay & park site and should not leave the taxi till his

arrival.

41. PW-20 Ramchandra Shitalprasad Gupta has also identified

A1. He claimed to have seen A1 along with his wife and two

daughters travelled in his friend's ( Shivnarayan Pandey) taxi. PW 20

however did not identify A2 in the above parade. Exh.-P-323 is the

memorandum of the above TIP which was held on 6-10-2003 in

Mumbai Central Prison.

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42. The Special Metropolitan Magistrate Madhukar Bodake

(PW-18), on 6th October 2003, held identification parade at Byculla

District Prison, regarding A3. The same witness i.e. PW-15

Shivnarayan Pande, identified A3, as the woman travelling along with

her husband and two daughters in his taxi on 25th August 2003. He has

mentioned about parking of that taxi at Gate Way of India in Pay and

Park site in front of Taj Hotel. Ramchandra Gupta (PW-20) and Nafis

Khan (PW-19) also identified A3 in the said parade. Exhibit-324 is

the memorandum panchanama of said parade.

43. Special Executive Officer Shri Sudhir Surve (PW-59) on

8.10.2003 in connection with C.R. No.157 of 2002 held identification

parade of A1 & A2 at Mumbai Central Prison for witness Manoj Patil

(PW-60). PW-60 identified A1 as a person who was in the queue ahead

of him for boarding BEST bus Route No. 312 at about 5.30 p.m. on

2-12-2002 at Seepz Bus depot and as the person who had handed over

a cloth bag to A2 who had later on occupied a seat on the rear side of

the said bus and thereafter A1 having left the stop.

44. Shri Dilip Masram (PW-62), conductor of the same bus

Route No. 312, also identified A2 as a person who had a quarrel with

another passenger at Seepz Bus depot and he pacified the person who

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along with a cloth bag had taken the seat on the rear side of the bus.

PW-62 however did not identify A1 at the said TI parade. The

memorandum of the said TIP prepared by PW-59 is Exh.P-415.

45. Special Executive Officer Shri Dushant M. Ozha on

9.10.2003 at Mumbai Central Prison had conducted identification

parade of A1 and A2 for five identifying witness. At the said parade,

PW-28 Dilip Yagnik working at STD/PCO Booth of Kantilal Jain

situated at 5, Vitthal Wadi, Zaveri Bazar, Mumbai- 400 002 identified

A2 as a person, who, on 25-8-2003, at about 12.10 hrs., made

telephone call from his PCO to one Nasir saying that he had kept the

goods in the taxi near Mumbadevi temple and work would be done.

Similarly, witness Harish (PW-30), who was present near

Mumbadevi Temple area on 25-8-2003 for hiring taxi for returning to

his home at C.P. Tank claimed to have seen taxi No. MH-01 H-2022

halted at Zaveri Bazar. He claims that he tried to board the said taxi

but he was told that taxi was not empty and directed him to go ahead

and shortly thereafter there was an explosion in the same taxi. PW-30

had identified A2 as being the same person who had shouted at him

and asked him to go away. Kunjbihari Ramprasad Pandey (PW-29)

and Kutty Manappa Shetty (PW-33) hawkers doing business at Dhanji

Street Naka has identified A2 at the said parade as a person who had a

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quarrel with one Nasir in the area of Dhanji Street Naka at about 6.00

p.m. on 24-8-2003 and they had a quarrel with one motor-cyclist and

the quarrel was separated by the above hawkers. The Memorandum of

the said TI parade prepared by PW-41 being Exh. P-192.

ABOUT APPROVER

46. The charge sheeted Accused No. 4 Jahid Patne soon after the

three bomb blasts had watched news item on television in Dubai. He

became restless and was unable to sleep after knowing that several

persons lost their lives and many persons were injured in the said

blasts. He started repenting for his misdeeds. He then went to local

Masjid and apprised Maulana by name Jafar Sahab that he was

repenting for his act of having participated in the conspiracy of causing

bomb blasts in India. He was told by Maulana that due to his illegal

act, the persons including woman and children of both religions (Hindu

and Muslim) were killed and it was against the Muslim religion. He

thereafter decided to return to India to surrender before police and

accordingly returned to India on 1-10-2003. He was appraised by his

family members that police from Bandra Crime Branch had been to his

house for making inquiries. Hence, he along with his elder brother

went to the office of Bandra Crime Branch. Chief IO PW-103 made

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inquiry with said accused No.4 Jahid and received credible information

that Jahid was one of the conspirators of the offences of bomb blasts.

PW-103 arrested him on 2-10-2003 in DCB, CID C.R. No. 75/2003

and produced before the Special Court. He was remanded to police

custody till 17-10-2003, which was later on extended upto

30-10-2003.

47. During the course of interrogation Accused No. 4 Jahid

expressed his willingness on 16-10-2003 to give his confession. On

21-10-2003 he was produced before Shri Dhananjay Kamlakar

(PW-12) DCP of Zone-VII. He took proceeding for recording the

confession, Part-I (Exh.P-264). PW-12 took further proceedings on

the next day when accused No.4 was produced i.e. on 23-10-2003.

After following the due procedure, confession of A4 was recorded -

Part-II (Exh. P-264A). Accused No.4 on the same day was produced

before C.M.M. and his statement was recorded by C.M.M. confirming

the contents of his confession. The CMM then forwarded the

confession of accused No.4 to Special Court. Accused No. 4 Jahid was

remanded to judicial custody on 30-10-2003.

48. The Officers of DCB, CID, Unit-VII received reliable

information about the involvement of charge sheeted Accused No.5

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Batterywala and Accused No. 6 Ladduwala (present A4 & A5 at trial)

in the explosion of bomb blasts at Gateway of India and Zaveri

Bazaar. Both these accused were arrested in Ghatkopar area by the

Police Officers of Unit No. VII on 5-11-2003 and they were produced

before the Special Court on the same day. Special Court remanded

both the Accused persons to police custody till 19-11-2003 which was

further extended till 1-12-2003.

49.

During interrogation on 10-11-2003, A-5 Hasan Batterywala

made a statement showing willingness to show the place where the

explosives were kept by him. The Memorandum (Exh.-297) regarding

said information was drawn. The said Accused No. 5 led IO and

panchas towards his Battery shop at Kolhapur Garage, L.B.S. Road,

Kurla (W), Mumbai and from said shop he produced 3 gelatin sticks

and RDX powder weighing 750 gms. kept in one cardboard box. The

said articles came to be seized in presence of panchas vide

panchanama (Exh. P-297A)

50. On 13-11-2003 Accused No. 6 Ladduwala, informed the IO

that he would show the place where the explosive material was kept by

him which was used while exploding bombs in Zaveri Bazar and at

Gateway of India. In consequence of above information, 2 detonators

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came to be seized by IO from a hut situated at Gulshan Nagar slum

area near Shahad Railway Station, Shahad (E), District Thane vide

panchanama (Exh. P-291A).

51. Charge sheeted accused No. 5 Batterywala and accused No.

6 Ladduwala on 14-11-2003 expressed willingness to give their

confession and the same was apprised by Chief IO (PW-103) to Joint

C.P. (Crime) who in turn respectively directed DCP Shri Amitabh

Gupta (PW-89) and DCP Shri Ankush Shinde (PW-91) to record the

confession of respective accused persons. Accordingly DCP PW-89

recorded Part-I (Exh. P-516) the confessional statement of charge

sheeted Accused No. 5 Batterywala on 25-11-2003 and part-II of the

confession (Exh. 516A) on 27-11-2003 by following the due

procedure. On the same day, Accused No. 5 Batterywala was produced

before the Chief Metropolitan Magistrate. Similarly DCP PW-91

recorded Part-I of the confessional statement (Exh. P-532) of Accused

No. 6 Ladduwala on 25-11-2003 and part-II of the confession (Exh.

P-532A) was recorded on 27-11-2003. On the same day Accused No. 6

Ladduwala was produced before C.M.M. Both the accused persons

narrated the whole story before DCP involving themselves and other

co-accused persons in the commission of offence of bomb blasts.

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52. The investigation of all the four offences transpired that A1

belonged to terrorist organization i.e. Lashkar-E-Toyaba. He had

committed terrorist activities in Mumbai. He came to India from

Dubai and with the help of his wife A3, deceased terrorist Nasir

Ahmed Ansari, A2, original A5 and A6 committed terrorist acts in

Mumbai city by exploding the bombs. In pursuance of the criminal

conspiracy hatched by A1 to A6 and wanted accused persons,

i) A2 planted timer bomb in BEST bus bearing No. MH-01-

H-8765 at Seepz on 2-12-2002 and

ii) A2 with the help of A3 planted bomb in BEST bus of Route

No. 340 on 28-7-2003.

iii) A2 on 25-8-2003 also planted bomb in motor taxi bearing

No. MH-02-R-2022 near Mumbadevi and

iv) A1 with the assistance of his wife A3 planted bomb in motor

taxi bearing No. MH-02-R- 2007 which was exploded at

Gateway of India at about 13.10 hrs. on 25-8-2003.

As a result of said three bomb explosions 54 persons

were killed and 244 persons sustained injuries and property

worth Rs. 1,60,00,000 was damaged.

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Sanction for prosecution under POTA

53. After receiving reports of Forensic Science Laboratory and

reports of Joint Controller of Explosives regarding the examination of

seized material; and after getting postmortem reports/Provisional

Cause of Death Certificates of the deceased persons and the injury

reports of the injured persons; and after receipt of the consent of the

Central Government for prosecution of the accused persons under the

provisions of the Explosive Substances Act, 1908 and after receipt of

the reports from various agencies regarding the assessment/valuation

of the damaged property, the Chief Investigating Officer PW-103

submitted proposal to Government of Maharashtra for according

sanction to prosecute the accused persons under the provisions of

Prevention of Terrorism Act, 2002. After having examined the material

placed along with the proposal, the Government of Maharashtra on

04-02-2004 was pleased to accord sanction to prosecute Accused Nos.

1 to 6 under Sections 3, 4, 5(1) and 20 of Prevention of Terrorism Act,

2002.

54. After receiving sanction under Section 50 of POTA, 2002

for prosecution of charge sheeted accused Nos.1 to 6, Chief IO

PW-103 submitted charge sheet on 5th February, 2004 against A1 to

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A6 (including PW-2) as stated earlier for commission of offences

under Section 120-B, r/w Sections 302, 307, 326, 324 IPC, u/s 3, 4, 5

of Explosive Substances Act, 1908, u/s 5 and 9(B) of India

Explosives Act, 1884, u/s 3, 4, 5 and 20 of Prevention of Terrorist

Act, 2002, along with absconding accused Shafakat, Abid, Khalid,

Maqsud, Jahangir, Bilal, Samiulla and Rehman named in the charge

sheet. Upon filing of the said charge sheet, cognizance was taken by

the Special Court and above stated POTA Special Case No.1/2004 was

registered. As stated earlier, charge sheeted accused No.4 being

accorded pardon on the basis of prosecution application, he was

examined at the trial as PW-2. While charge sheeted accused Nos.5 &

v6 were renumbered as A4 & A5.

55. On 29-6-2004 the charge as described in detail in Exh. P-5

was framed against A1 to A5 for commission of offences under eight

different heads i.e. from head Firstly to Eighthly for offences under

Section i) 120-B of IPC, r/w 3, 4, 5(1) & 20 of POTA Act so also r/w.

Section 302, 307, 427 of IPC and Section 3 of Explosive Substances

Act, Section 9(B) of the Explosive Act, 1884 and Section 3 of

Damage to Public Property Act. ii) 3(2) of POTA Act, r/w. Section

120-B IPC. iii) 3(3) of POTA Act. iv) 120-B of IPC r/w. S. 302, 307

of IPC and S. 3(2), 3(3) of POTA, 2002 and Section 4 of Damage to

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Public Property Act, 1984 r/w. S. 427 of IPC and S. 3 to 6 of Explosive

Substances Act, 1908 and S. 9(B) of Explosive Act, 1884. v) 302, 307,

427 r/w. S. 34 further r/w. S. 120-B of IPC, further r/w. S. 3, 4, 5 & 6

of Explosive Substances Act, 1908, and U/s. 3 of Damage to Public

Property Act, and S. 3 & 4 of Prevention of Terrorism Act. vi) 302,

307, 427, r/w. S. 120-B of IPC also u/s. 5, 9(b) of Indian Explosive Act

r/w. S. 3, 4, 5, 6 of Explosive Substances Act and r/w. S. 3 of Damage

to Public Property and U/s. 3 & 4 of POTA, 2002 (against accused

Nos.1 to 3 only) vii) 3 of Explosive Substances Act, 1908 (against

accused No.3 only) viii) 3 of Explosive Substances Act (against

accused No.5 only)

56. All the accused Nos. 1 to 5 pleaded not guilty to the charge

framed against them and claimed to be tried. The prosecution at the

trial adduced oral evidence of 103 witnesses. In addition to the oral

testimonies of the said witnesses the prosecution also relied upon the

several documents which were proved through the said witnesses or

otherwise taken on record due to consent given by the defence in

response to application under Section 294 of the Code.

57. The documents taken on record and marked exhibit are as

mentioned in paragraph nos.53 to 55 of the judgment of Trial Court

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under consideration i.e. the documents such as i) Death Certificates, ii)

Provisional Death Certificates, iii) Postmortem Notes and iv) Inquest

panchanamas of deceased persons as well as v) the Medical

Certificates of the injured persons vi) inquest panchnamas. vii)

common panchanamas regarding seizure of blood stained clothes of

injured and deceased. viii) map of place of offence of DCB CID Cr

No. 157 of 2002, CR. No. 75 of 2003, CR No. 91 of 2003 and CR No.

86 of 2003. ix) panchanama regarding destroying of RDX.

58. As aforesaid, prosecution at the trial examined in all 103

witnesses, i.e. witnesses referred herein above and so also 28 more

witnesses i. e. PW-23, PW-25, PW-34, PW-36 and PW-64 to PW-87

on the point that their nearest relatives lost lives in the twin bomb blast,

dated 25-8-2003. Apart from the above witnesses PW-3 Rajendra

Pawar, PW-4 Anil Parmar, PW-5 Ashok Sakpal, PW-6 Manoj Patil and

PW-7 Ghanshyam Dubey were examined on the point of purchase of

SIM cards of Airtel bearing No. 9892451164 and 9892077831 by Nasir

and A1. PW-11 Jyotsna Chandratre was the Special Executive Officer

who held TIP of photographs of slain terrorist Nasir at Colaba Police

Station on 3-1-2004. PW-13 Pandit Bhandalkar has prepared the sketch

of the scene of offences in CR No. 91 of 2003 and in CR No. 206 of

2003. The details of remaining prosecution witnesses being correctly

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described in detail in paragraph nos. 56 to 64 of judgment of Trial

Court under consideration and the relevant evidence qua submissions

advanced before us being dealt in the further part of the judgment the

same is not unnecessarily narrated for the sake of brevity.

59. The accused in defence have adduced defence evidence i.e.

A1 has examined himself as DW-4 and has also examined 2

witnesses i.e. (DW-5) ig Ex-Commissioner of Police, Mumbai, Shri

Ranjitsingh Sharma and (DW-6).Ex-Home Minister of the State Shri

Chagan Bhujbal. Similarly A5 has examined himself as DW-1 and

has examined DW-2 his son Shaikh Mohd. Ismail. A5 has examined

ACP Sadashiv Patil as DW-3 to point out that statement of PW-8

Ajmeri Mohd. Ali Shaikh was recorded by him in connection with

bomb blast incident in Mumbai dtd. 11-7-2006. Defence has also relied

upon as many as 124 documents/Exhibits.

FINDINGS OF THE TRIAL

COURT

60. After hearing both the parties and assessing the evidence

adduced at the trial, the trial Court came to the conclusion that:

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i) A1, PW-2, deceased accused Nasir and other

wanted accused had hatched criminal conspiracy

partly at Dubai in the month of August 2002 in the house of Nasir at Dubai and after returning to India, A1 and Nasir along with A2 and A3 had held several

conspiracy meetings in the house of A1 at Mumbai for chalking out detail plan for doing bomb blasts at crowded places in Mumbai and thus conspiracy of

doing terrorist acts in Mumbai was hatched partly in

Dubai and partly in Mumbai.

ii) sanction of the Central Govt. u/s 188 of Cr. P. C. was not necessary for trial of the accused persons for the offence u/s 120-B of IPC

iii) A2 was found in unauthorized possession of hazardous explosive substances in his house at 22.40 hrs. on 31-8-2003.

iv) A2 and A3 were found in unauthorized possession of hazardous explosive substances in their house R.

No. D-7 Salim Chawl, Chimatpada on 1-9-2003 at hrs.

v) on 1-9-2003 at 7.50 hrs. A1 was found in unauthorised possession of hazardous explosive substances in a room occupied by him bearing R. No. 14 Salim Chawl, Chimatpada.

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vi) A1 to A-3 and deceased Nasir in pursuance of the above criminal conspiracy had planted timer bomb

below the rear seat in BEST Bus of route No. 312

(336) bearing No. MH-01 H-8765 near Seepz BEST Bus Depot, MIDC, Andheri (E), in the evening of

2-12-2002 with intent to kill maximum number of persons travelling in the above bus and to cause loss to the public and private properties.

vii) A1 to A3 and deceased Nasir in pursuance of the above criminal conspiracy had planted a timer bomb

in a BEST bus of route No. 340 bearing No. MH-01 8246 which was exploded at about 21.10 hrs. on 28-7-2003 at Karani Lane Junction, Ghatkopar (W),

Mumbai causing the death of two persons and injury

to 60 passengers and also causing damage to public and private property worth Rs. 16.30 lacs.

viii) A1 to A3 and deceased Nasir in pursuance of the above criminal conspiracy, planted timer bomb in a motor taxi bearing No. MH-02-R-2022 which was kept

waiting at the junction of Dhanji Street, Yusuf Ali Road, in front of Sagar Juice Centre, Near Mumbadevi Temple, Mumbai on 25-8-2003 at noon time and the powerful bomb kept in the above taxi was exploded at 12.40 hrs. causing the death of 36 persons and injury to 138 persons and also caused damage to public and private properties worth Rs. 95 lacs.

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ix) A1 to A3 and deceased Nasir in pursuance of

above criminal conspiracy, kept timer bomb in airbag and airbag was kept in the dickey of motor taxi bearing No. MH-02-R-2007 which was parked in "

Pay & Park " site opposite Hotel Taj at Gateway of India, P. J. Ramchandani Marg, Colaba, Mumbai-400 005 on 25-8-2003 and the said bomb was exploded at

13.05 hours killing 16 persons and causing injuries to

46 persons and causing huge damage to public and private properties.

x) That valid sanction Exh. P-573 was accorded by Government of Maharashtra u/s 50 of POTA 2002 to

prosecute the Accused persons.

The trial Court in consonance with the said findings held that

accused A1 to A3 have committed the offences as described in

commencing paragraph of the judgment and sentenced them

accordingly.

Brief Submissions of Both Sides

61. The learned APP by and large supported the judgment under

consideration and particularly finding of guilt of A1 to A3 for

commission of the offences as arrived by the trial Court and sentence

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of death and the other sentences awarded by the trial Court. The crux

of her submission, is that, barring not accepting the evidence of

certain witnesses and sanction as pointed out by her discussed at

appropriate stage, the trial Court has properly appreciated and accepted

the evidence of the prosecution witness. She further urged that

considering the nature of offences committed and the purpose behind

committing them i.e. the conspiracy hatched to commit terrorist act and

commission of terrorist act as established by the prosecution evidence

no fault can be found even with the sentence awarded. She submits that

sentence of death awarded by trial Court deserves to be confirmed and

no interference is warranted regarding the other sentence awarded to

A1 to A3. She also urged that in the event of agreement with her

submission of the evidence of particular witness was wrongly

discarded by the trial Court, then, the concerned accused whose

involvement/guilt for commission of offences in relevant incident is

established, will be also required to be held guilty for such offences.

The learned APP made elaborate submissions by taking us

meticulously through the record of the case for supporting her said

submissions. For the sake of brevity, the relevant submissions

meriting consideration and/or discussion are narrated and considered at

appropriate stage while considering the relevant evidence and/or

relevant aspect.

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62. Learned APP also made elaborate submission for allowing

the writ petition preferred by the prosecution for quashing and setting

aside the opinion/direction given by Central Review Committee and

remanding the matter back to the said committee. She also made

elaborate submission for allowing appeal preferred by the prosecution

against the order dated 18th November, 2008 passed by POTA Special

Court, holding that the prosecution against A4 and A5 is deemed to

have been withdrawn from the day the directions were given by

Central Review Committee and consequently releasing them. She

urged for quashing and setting aside the said order and sending the

matter back to the trial court for deciding the same in accordance with

the law. We shall elaborate this submission a little later.

63. Mr. Pasbola learned counsel for A3 opened the defence

arguments. At the outset, he submitted that none of the accused have

disputed the factum of bomb explosions and/or people having died or

being injured and of severe damage caused to property in and around

the place of blast. But he urged that the prosecution has failed to

establish that the explosions were caused by using a particular

chemical as claimed by the prosecution i.e. attempt to commit the blast

in BEST Buses at MIDC Seepz and blast committed at Ghatkopar by

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using bombs containing gelatin sticks and for remaining two incidents

of bomb blasts by using RDX i.e. at Zaveri Bazar and Gateway of

India.

64. He further urged that though it is the prosecution case that

conspiracy was hatched in Dubai, the probable period during which

the same was hatched has not been specified in the charges framed at

the trial. Further, the said conspiracy ought to be before December,

2002. Even the evidence about the same is too sketchy and

unbelievable i.e. in the shape of evidence of the PW-2 approver and the

evidence of PW-1 and the evidence of confession of accused and that

too confession of the co-accused. He submits that the prosecution

cannot rely on the alleged confession of approver - as he was not tried

as co-accused.

65. He further urged that the incident of attempt to cause

explosion was committed on 2nd December, 2002 while the incident of

explosion had occurred on 28th July, 2003 while the remaining two

incidents of explosion had occurred on 25th of August, 2003. By

pointing out the provision of Section 219 of the Code, he urged that as

per the said provision, three offences of the same kind committed

within a period of one year can be tried together at one trial. The trial

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conducted for clubbing four incidents together, is illegal. He urged that

such trial was and in fact caused prejudice to A3. Hence, the trial

against A3 is vitiated.

66. He further urged that the charge framed at the trial is

blissfully vague. It is urged that the charge for every distinct offence as

required under the law is not framed against A3. The same has caused

prejudice to A3. Hence, it has also occasioned failure of justice.

67. He further urged that encountered accused - Nasir has not

been named as a co-conspirator in the charge as framed - though

principal participant. According to the learned Counsel, the evidence

regarding the death of Nasir is unbelievable. Amongst other, the SIM

card recovered near the body of Nasir is not referred to in the charge-

sheet. The evidence regarding purchase of SIM card by Nasir as well

his encounter will have to be discarded. Besides, the said fact has not

been established by the prosecution - relying only on evidence of

PW-1 which is insufficient as the same is not substantiated,

corroborated by any other evidence.

68. He further urged that the prosecution evidence does not

clearly disclose as to when and how provisions of POTA was applied

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to this case. For, when A2, 1 and 3 were arrested in connection with

Ghatkopar incident, POTA was applied. Presumably, it was applied

later on. That was to circumvent the non-compliance of Section 51 r/w

32(5) of POTA. On this basis, it is argued that the alleged confessions

will have to be excluded from consideration - being statements of

accused recorded while in police custody before application of POTA

provisions. He submits that there is serious dispute regarding the date

of arrest of the accused i.e. A1 to 3. According to the prosecution, it is

31st August, 2003, whereas, the defence claims the arrest on 30th

August, 2003.

69. He further submits that the defence was denied opportunity

to rebut the prosecution evidence. In that, though police officer

(Gulabrao Pole) who had allegedly recorded confession of Accused in

another case was present in Court he was not allowed to be examined

by the defence. That police officer had owned up the responsibility of

planting of bomb in the other case.

70. He further submits that the prosecution evidence itself

discloses that after recording of alleged confession and production

before the Chief Metropolitan Magistrate, the accused was sent back to

police custody. That was opposed to Section 32(5) of POTA. Further,

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the accused had partially retracted confession before the Chief

Metropolitan Magistrate, but later on completely retracted the same.

For all these reasons, the alleged confessions will have to be discarded,

inter alia, being opposed to provisions of POTA.

71. He further submits that the incriminating portion in the

alleged confessions were not put to the Accused - to enable the

Accused to offer explanation. Even for that reason, the same cannot be

looked into.

72. He further urged that in the present case all the C.A. Reports,

without examining any of the Chemical Analyser were admitted in

evidence under Section 293 of Cr.P.C. The provisions of Section 293

only makes the reports contemplated under the same as admissible and

does not dispense with the proof of the same. The material stated in

the CA reports and sought to be used against A3 was not at all put to

her during her examination effected under Section 313 of Cr.P.C. He

further urged that as such, user of the same without giving her an

opportunity to explain the incriminating material from the same used

against her has resulted in causing grave prejudice to her.

73. He further urged that it was incumbent to examine the

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Sanctioning Authority who applied his mind before according the

sanction for prosecution for the offences under POTA. It was urged

that keeping in mind the dictum in the case of State (NCT of Delhi)

vrs. Navjot Sandhu alias Afsan Guru, 2005 SCC (Cri) 1715 i.e. the

defence ought to have been permitted to examine the file pertaining to

grant of sanction, which document being contemporaneous record

alone can resolve the issue of non-application of mind. He urged that

in present case such an inspection of the file pertaining to according of

sanction as well as request to examine the Sanctioning Authority was

denied to the defence. Thus, fair opportunity was not given to the

Accused to defend at the trial and the same has occasioned failure of

justice.

74. He then urged that sanction Exhibit 568 (relating to Seepz

and Ghatkopar) should be discarded as it makes no reference to the

provision in respect of which the sanction is accorded.

75. He faintly urged that the entire trial is vitiated as the Special

Judge came to be appointed after the Repeal Act came into force.

76. He also urged that there has been serious miscarriage of

justice and grave prejudice to the Accused because of unfair trial. In

that, the prosecutor was allowed to ask leading questions to the tutored

planted prosecution witnesses, inspite of repeated objections taken by

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the defence. Not only that the Trial Judge adopted an unusual

procedure of recording of entire examination in chief in question-

answer format. It is submitted that the objections taken by the defence

were not immediately answered. Inspite of ruling that the same will be

answered at the time of final judgment, no ruling has been given

thereon. It is submitted that this anamoly has crept in the proceedings

as the major evidence was recorded before two different Judges. The

trial Judge who pronounced the Judgment took over the case at the

stage of recording of Section 313 statement.

77. He urged that articles allegedly recovered from the house of

accused Nos.1 & 3 and the another owned by accused No1 are gelatin

sticks. It is the prosecution case that two blasts (at Gateway of India

and at Zaveri Bazar) were caused by means of RDX, while gelatin

was used in other two incidents. It is also case of prosecution case

that the encountered accused - Nasir had procured RDX and supplied

the same. However, no investigation has been done regarding the

manner in which the gelatin sticks have been procured by the Accused

- which were admittedly easily available in the market and bearing the

mark of manufacturer "Vardha". It was urged that no investigation in

this regard creates a reasonable doubt that the gelatin allegedly

recovered from the house of Accused was a planted article. This has

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caused serious prejudice to the Accused.

78. He urged that PW 103 the Chief Investigating Officer has

given the evidence on the basis of written prepared notes and not by

refreshing his memory by perusing case diary/crime report. This has

caused serious prejudice to the Accused. His entire evidence is liable to

be discarded as the same indicates that he himself has not carried out

any investigation. It was urged that as per the provisions of POTA all

the investigations are required to be carried out by Investigating

Officer of a particular rank. The evidence collected by the Officers not

authorized to investigate the offences under POTA, will be required to

be discarded as the same is in violation of the provisions of law. It was

urged that in the present case, the investigation was only supervised by

Chief Investigation Officer of the rank of ACP. That will not cure the

defect and it goes to the root of the matter.

79. It was urged that the various other deficiencies to be pointed

during the course of argument will also indicate that the defence was

not given proper opportunity and the trial was unfair. It was urged that

the same would be most relevant while considering the order of

acquittal / release passed in favour of co-accused A4 and A5. It was

urged that certain documents were called for. The same were not

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furnished to the defence. That has resulted in denial of fair opportunity

to the defence as also warranting drawing of adverse inference against

the prosecution. In the result, the benefit of doubt should be given to

the Accused and they should be acquitted.

80. Learned counsel thereafter made exhaustive submissions

with regard to four incidents in question i.e. regarding the witnesses

examined by the prosecution and so also regarding the encounter

incident and so also the aspects pertaining to the evidence of PW2

Approver, making himself as an approver by the prosecution, grant of

pardon, non recording of his statement, appointment of the Special

Judge after POTA was repealed, sanctions accorded for prosecution of

offences under Explosive Act and/or under Explosive Substances Act

etc. for submitting that the evidence adduced has not established guilt

of A3 and/or some of the evidence deserves to be excluded from

consideration.

81. Learned counsel thus urged that the guilt of A3 is based upon

very slender and unreliable evidence in the shape of her confession,

uncorroborated evidence of PW2, confession of the co-accused and

unacceptable evidence of her identification made by the witnesses who

are either planted by the prosecution and/or in the nature of chance

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witnesses. It was urged that curiously enough "all the witnesses" who

claim to have identified A3 or the other co-accused, have done so

because of the quarrel, bickering ensued between the Accused and the

concerned witness. It was urged that even assuming that A3 or any of

the other Accused was entrusted to plant a bomb then it is difficult to

perceive that such a person will involve himself / herself in a quarrel in

the manner alleged. It was urged that this theory propounded by the

prosecution is against the grain of ig probability. That itself is a

circumstance justifying the submission that the said witnesses are

unnatural witnesses and have been planted by the prosecution.

82. Learned counsel urged that A3 is entitled to be acquitted

from all charges levelled against her or at least considering the feeble

nature of evidence of her identification, she deserves to be given

benefit of doubt.

83. Mr. Khan Abdul Wahab, learned counsel for A1, at the

outset, submitted that he is adopting all submissions advanced by

learned counsel for A3 Mr. Pasbola as the same would be applicable

even in the case of A1.

84. He, however, urged with regard to the incident of alleged

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encounter on 12th September, 2003, in which death of two persons

(absconding accused Nasir and one more) is said to have occurred, the

prosecution has utterly failed to establish that the dead body of the

person was of none other than the co-conspirator Nasir. The

prosecution has rested the matter mainly upon the sole evidence of PW

1 who had lodged the said complaint.

85. It was further urged in the same context that photograph of

the said dead person who is said to be Nasir has not been shown to any

of the witnesses in the present case to establish that the said dead

person was accompanying A1 as claimed by them. It was urged that

merely showing some cards of Bank containing photograph of Nasir

would not be sufficient to establish that the person killed in the

encounter was Nasir.

86. It was further urged that the said incident having occurred

within the area of Dadar Police Station and as separate case was

registered for the same, it was necessary for the prosecution to

produce papers of the said case and/or examine the concerned

witnesses to establish that the incident as claimed by the prosecution

had in fact occurred. It was urged that the prosecution has not adduced

any evidence beyond the evidence of PW1 and producing the inquest

panchanama in the said case. Even that Panchnama has not been

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proved by adducing any independent evidence of panch witnesses.

87. It was further urged that even assuming that two sim-cards

as claimed by the prosecution were allegedly seized from the mobiles

on the person of the said deceased, still no number engrossed upon

the said sim cards has surfaced in the evidence for linking the said sim

cards which is said to have allegedly purchased by Nasir from mobile

shop. It was urged that merely sim cards purchased from the shop

having a particular number would not be sufficient to come to the

conclusion that the same were sim cards which were found on the

person of deceased for establishing the link between A1 and said

Nasir.

88. It was urged that the evidence of PW1 in paragraph 9 reveals

connection of the material allegedly found from the encountered

person, bearing the names of certain persons. It was urged that none

of the said persons have been examined to establish the link of the said

material with the said persons or for establishing identity of Nasir as

being the same person who was encountered. In the same context it

was urged that the said material reveals different names on driving

licence or the name of the owner of vehicle as Umesh Suresh Nadkarni

with address as 7.2 Old Hanuman Building, Second floor, Chuna Lane,

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Bombay-7 and the same being transferred to Mrs. Ayesha Shah Sayyad

Hanif with Ghatkopar address. It was urged that the same is the case

regarding election identity card which stands in the name of Abdul

Sayyad Rahman Ali with photograph of deceased (allegedly Nasir)

with address of Hyderabad. It was urged that all the defects have been

clearly brought out in the cross examination recorded on page no.1136.

89. It was further urged that panchanama regarding gelatin stick

being found in the house of said encountered accused has not been

produced / proved in the present case for establishing the link of the

said person encountered.

90. It was urged that the evidence of PW11 Special Executive

Officer reveals that photograph of Nasir i.e. taken from the person of

deceased was used for holding photo test identification parade. It was

urged that the evidence pertaining to the said parade reveals that stock

police panch Narayan Shetty was used as a panch witness for the said

parade. It was urged that for establishing the said fact, application was

made on behalf of the defence, the same was rejected by the Court.

That has prejudiced A1 and co-accused in establishing most relevant

facet of their defence that the prosecution has used stock police panch.

91. In the same context it was urged that the parade panchanama

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was prepared on a typewriter i.e. the typewriter which was used earlier

by SEO for typing several documents for the same police station for

which he had conducted the said parade. It was urged that even the

photograph of dummies used for the said parade has not been

produced. The entire evidence regarding the said parade is doubtful

and so also the alleged identification of the said Nasir allegedly made

by the witnesses is highly doubtful deserving no credence.

92. Learned

counsel also made exhaustive submissions

regarding the arrest of A1 and so also the arrest of A2 and about the

sealing aspect and the evidence of PW103 in relation to making PW2

approver, confession etc., identification of A1.

93. In nutshell, it is the submission of learned counsel for A1

that the trial was not fair to the said accused, the evidence relied for

drawing the conclusion of his guilt is unreliable and unworthy of

credence or against the grain of probability. Rather he has been made

a scapegoat and his guilt is not established by prosecution evidence and

he deserves to be acquitted or at least deserves to be given benefit of

doubt.

94. Though learned counsel for A2 submitted written

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submissions, he was asked to make oral submissions at least to

highlight important points. He chose to make limited submissions

pertaining to the incident or the circumstances showing involvement of

the A2 for which he is convicted. The same are dealt with at

appropriate place while discussing the prosecution evidence pertaining

to the relevant topics in light of the rival submissions about the same.

Now with regard to the remaining submissions, he has also made the

similar grievance like counsel for A1 and A3 of having not received a

fair trial by pointing out certain defects regarding the charge framed

and / or the manner in which the trial was conducted i.e. by allowing

putting leading questions and / or objection raised during the course of

trial being not decided properly. It will not be out of place to mention

that during the oral arguments on behalf of A2, learned counsel did

not point out as to which objection raised at the instance of A2 during

the trial requires consideration.

95. It was urged that charge framed against A2 at head fifthly for

explosion occurred at Zaveri Bazar and for explosion occurred at head

sixthly Gateway of India were vague to give a fair idea of the

prosecution case against A2. It is urged that charge at head fifthly

reveals that except the bald allegation of A2 along with A1 and A3

having proceeded on the relevant day towards the junction of Dhanji

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street and further bald allegation of all of them having planted a bomb

using high explosive and detonators in motor taxi, the same is vague.

No details of the overt act committed by A2 is disclosed. It was

urged that even the case/charge regarding the Gateway incident is no

different.

96. Learned counsel also made similar submissions as that of

counsel for A1 regarding the concerned witness about the identity of

A2 with regard to the incident in question. All the prosecution witness

who have identified A2 because of occurrence of some quarrel

bickering etc. It was urged that this theory is highly improbable and the

same also supports defence contention of the said witnesses being

planted by the prosecution.

97. The learned Counsel urged similar submissions as canvassed

by earlier counsel for A3 and A1 regarding clubbing of offences

allegedly committed in four incidents at one trial for contending that

the same being in contravention of the provisions of law. It was urged

that there being a huge gap between first incident occurred on 2nd

December, 2002 and second incident in the month of July 2003 and

remaining in the month of August 2003 also indicates that A2 has been

falsely involved in the first incident and so also the other incident. It

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was also urged that the said time gap also denotes that the incidents in

question cannot be said to have occurred in the course of one

transaction.

98. The learned counsel also made submissions incident-wise

regarding involvement of A2, about his alleged confession, his alleged

arrest on 31st of August, non compliance of the mandatory provisions

under POTA while recording the confession, evidence of approver,

making himself approver about recovery evidence etc. The same will

be dealt with while considering rival submissions regarding the

relevant topic at appropriate stage for the sake of brevity.

99. As a net result of all the submissions, learned counsel

contended that guilt of A2 is not established by the evidence adduced

by the prosecution. It is thus contended that A2 also deserves to be

acquitted. We may place on record that at the end of hearing, the

Counsel for the respective parties (in particular for the State and A 1 to

3), addressed us on the quantum of sentence on the supposition that

the finding of guilt recorded against the concerned Accused were to be

upheld. That contention will be adverted to and dealt with at the

appropriate stage.

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100. We have given thoughtful consideration to the submissions

advanced by the rival parties and carefully perused entire record with

their assistance in order to ascertain merits from the same. However, in

order to ensure brevity and to avoid repeated discussions of the same

evidence we propose to make the discussions topic-wise hereinafter

i.e. firstly regarding Writ Petition No. 2539/2008 and Criminal Appeal

No.4 of 2009 pertaining to discharge of A4 and A5 and thereafter

matters related with unfair trial and, thereafter, incident-wise and,

thereafter, matters pertaining to the question of sentence awarded.

Re: Writ Petition No.2539/2008 & Cri.Appeal 4/2009

101. Ms. Kantharia, learned APP while adverting to events

unfolded after 10th May, 2005 in said POTA case, as described in

commencing part of judgment and the one which had ultimately led to

passing of order dated 17th November, 2008 by POTA Special Court,

Mumbai, urged that the same has forced the prosecution to institute

aforesaid proceedings. By this writ petition, the prosecution has

prayed for issuing writ or directions in the nature of certiorari and/or

such other appropriate writ, order or direction of similar nature

quashing and setting aside the direction given by said POTA Review

Committee. Notably, while admitting this writ petition on 11th

August,.2009, the prayer for interim relief of stay of implementation

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of directions issued by the POTA Court was rejected. As a result, the

said POTA Special Case proceeded with trial only against A1 to A3.

102. By aforesaid criminal appeal, the prosecution amongst other

has sought leave to prefer an appeal against the order dated 17th

November, 2008 passed by the Special POTA Court for Mumbai in

Special POTA Case No.1 of 2004 under Section 378(3) of Code read

with Rule 19 of Chapter XXVI of the Appellate Side Rules and for

quashing and setting aside the said order and directing said POTA

Court to decide the entire case on merits as against A4 and A5.

103. Learned A.P.P. urged that consequent to the report of the

Review Committee - for discharging A4 and A5 from the said POTA

case - the said accused filed MA 42 and 44 of 2005 respectively before

the Special Judge, POTA Court Mumbai. These applications,

however, were rejected by the said Court vide order dated 11.8.2005.

Resultantly, the prosecution had no occasion to take any steps

regarding the direction issued by the Committee. She further urged

that after this Court, in the proceeding filed by A4 and A5, gave

directions to the prosecution, vide order dated 24th October, 2005, to

file an application under Section 321 of the Code, for withdrawal of the

prosecution against A4 and A5, the Special Public Prosecutor in

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charge of the said case preferred such application Exh.P-343 inter alia

stating that he was of the opinion that there is prima facie case under

POTA against A4 and A5. She urged that similar stand was taken by

him in the reply to the application preferred by A4 and A5 before

POTA Court. She urged that by order dated 23.1.2006, the POTA

Court, having disposed the said applications, amongst other observing

that case for withdrawal under Section 321 of the Code was not made

out, - it was unnecessary for the prosecution to carry the matter further

on the assumption that - the Special Judge intended to proceed against

A4 and A5 as well. She urged that thus prosecution had duly

complied the direction given by this Court by preferring application

Exh.P-343.

104. The learned APP urged that however, A 5 had filed SLP

No. 187 of 2006 against the decision of this Court dated 24 th October,

2005 before the Apex Court. That SLP was converted into Criminal

Appeal No. 359 of 2006 and heard along with other matters of accused

persons involved in fire incident at Godhra, Gujarat. All the said

proceeding were disposed of by the Apex Court vide order dated 21st

October, 2008 i.e. by the decision in the case of Mahmadhusen

Abdulrahim Kalota Shaikh(2) .vs. Union of India and others

reported in (2009) 1 Supreme Court Cases (Cri) 620. On the basis of

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observations in that decision of the Apex Court, A4 and A5 again

preferred application Exh.D-116 before the POTA Court Mumbai for

exonerating them from charges framed on the basis of the

report/direction dated 10th of May, 2005 given by Review

Committee.

105. The learned APP by relying on the observations made in

paragraph no.51 of the decision in the case of M. A. K. Shaikh

(supra) and particularly the portion from the same to the effect "but we

make it clear that if the opinion of the Review Committee is

challenged by any aggrieved party in writ proceedings and is set

aside, the court where the proceedings were pending, will continue

with the case as if there had been no such opinion", urged that the

prosecution being aggrieved by the report/opinion/direction given on

10th May, 2005 by Review Committee, is competent to maintain this

Writ Petition to question the opinion of the Review Committee.

According to the prosecution, if this Petition succeeds, and the opinion

of the Review Committee is overturned being perverse and manifestly

wrong, at the instance of the State, then, as a corollary, the order

passed by the trial Court on the application of A 4 and 5 for discharge

will have to be set-aside. It is submitted that the State is otherwise

entitled to challenge the opinion of the Review Committee by way of

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Writ Petition. For, it is only recommendatory in nature. Even if the

same is to be construed as having the trappings of a quasi-judicial

decision and having binding effect by virtue of Section 60(7) of the

Act, it is amenable to challenge at the instance of an aggrieved party -

State being obliged to prosecute the offenders of such serious offences

- when it is demonstrated that the Review Committee has committed

jurisdictional error.

106.

The learned APP thereafter by drawing attention to the

provisions of Section 60 (4) of the POTA Act urged that the said

provision considered in the light of the other provisions of the said

section makes it abundantly clear that review contemplated is

expected to ascertain whether prima facie case for proceeding against

the accused for commission of offence under the POTA Act and to

issue direction in accordance with the same. She further urged that

the said provision does not empower the Review Committee to

pronounce on the continuance of trial against the accused of offences

other than POTA offences. She urged that thus the said provision

nowhere contemplates giving any direction for withdrawal of the cases

in respect of other offences under other enactments. The learned APP

vehemently contended that it is not open to the Review Committee to

direct withdrawal of prosecution of other offences under other

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enactments against the Accused and/or discharging or acquitting him

therefrom merely because he was prosecuted additionally for POTA

offences.

107. The learned APP thereafter by drawing attention to the

charges framed in POTA Special Case No.1/2004 urged that A4 was

also charged for commission of offence under Section 3 of Explosive

Substances Act, for having caused to unauthorisedly store 750 grams

of RDX, discovered at his instance on 10.11.2003 from Hassan

Battery Shop near Kolhapur Garage near Kurla, Mumbai. Similarly

A5 was charged for commission of such offence under Section 3 of the

Explosive Substances Act on the count of being in possession of two

detonators . The learned APP invited our attention to the report given

by Review Committee and particularly the relevant part of paragraph

No.17 of the same to the effect :

"17. There appears substance in the submission of Ld. Counsel representing accused Hassan Batterywala and Rizwan Ladoowala. These two accused have been

prosecuted under Section 4(b) POTA. Though the State of Maharashtra was notified area for the purposes of offences under POTA, Section 4 (a) POTA was not attracted against these two accused, as there was no recovery arms or ammunition as per the provision of Section 4(a) POTA. As regards charge U/s 4(b) POTA, recovery of alleged explosives at their instance is shown in the month of November 2003. Learned Special Public Prosecutor did not have any convincing reply to counter the contention of the Defence Counsel as to why

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would accused keep such explosive material in their possession for over a period of three months after the bomb blast incidents that last occurred in August 2003.

These two accused have not been connected with incidents of terrorism in the four bomb blast cases in any

manner except their alleged involvement in the conspiracy hatched in Dubai by the main conspirator Nazir @ Abdul Rehman who was killed in police encounter. But no admissible evidence or material could be pointed out by

Special Public Prosecutor to show even prima facie that these two accused were party to any such conspiracy. Report of the expert/ analyst that RDX and detonators allegedly recovered from these two accused were

explosive substance was not placed before us. Review Committee, taking a prima facie view of the material on

record, does not find these two accused connected with terrorist acts. Accordingly, the Committee finds that there is no basis for their prosecution under POTA."

(emphasis supplied)

108. The learned APP, thereafter, by drawing attention to the 1st

highlighted portion from the aforesaid paragraph urged that the said

observation made by the Review Committee clearly reveals that the

Review Committee had exceeded its jurisdiction and embarked upon

the field of appreciation of the prosecution material.

109. The learned APP further urged that even accepting that all

the incidents i.e of attempt to cause explosion and/or of causing

explosions for which the challan was submitted by the prosecution

had occurred prior to 25.8.2003 and even accepting that the Review

Committee had come to the conclusion of involvement of A4 and A5

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in conspiracy to commit bomb blast hatched in Dubai by main

encountered accused Nasir, was not borne from the material, still

drawing of such an inference as stated in said emphasized portion

aforesaid, was wholly impermissible. It was urged that the material on

record, prima facie, reveals involvement of A4 and A5 in commission

of the offence under Section 4 (b) of POTA and additionally that of the

offence under Explosive Substance Act for which they were charged at

the trial. Learned APP thereafter by pointing out observations of the

Apex Court in the case of M. A. K. Shaikh (supra) to the effect

"89. ................where there is obviously no case against the accused, the Review Committee should

withdraw the case. That is, "... where the Review Committee is of the opinion that there is no prima facie

case for proceeding against the accused", then the case shall be deemed withdrawn. [See POTA (Repeal), 2004, Sections 2(3) (a) and (b).] Where there is some evidence that suggests that a case against the accused might exist,

the Review Committee must allow the proceedings to continue". (emphasis supplied)

urged that in light of the same POTA Review Committee could not

have formed such prima facie opinion.

110. The learned APP by drawing attention to the decision of the

Apex Court in the case of Somnath Thapa reported in 1996 (4) SCC

659 and discussion in para No.30 thereof, urged that the broad

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contours for determination of a prima facie case against the accused

while considering his discharge application are well established. By

applying that principle prescribed by the Apex Court, the Review

Committee could not have concluded or arrived at prima facie opinion

that there was no case for proceeding against A4 and A5 for offences

under POTA particularly at least for offence under Section 4(b) of

POTA.

111.

The learned APP further urged that the entire material

contained in the charge sheet and the confessions were placed before

the Review Committee and the material at page no. 2566 was the C.A.

report pertaining to the samples of the contraband articles seized at

the behest of A4 and A5. It was urged that the said report reveals that

the articles were explosive substance RDX etc. Learned APP

contended that, therefore, the observation made by Review Committee

that report of Expert Analysis that RDX and detonators recovered

from the said accused were explosive substance was not placed before

them, is an error apparent on the face of the record committed by the

Committee, which is nothing short of being perverse. The learned

APP thus contended that the fact that charge for offence under

Explosive Substance Act has been framed against A4 and A5, is also

indicative of existence of the necessary material for the same. The said

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vital aspect showing involvement of A4 and A5 in commission of

offence under Section 4(b) of POTA being altogether overlooked by

Review Committee, the order passed or the directions given by the

Committee with regard to the said accused are not legally sustainable

and liable to be quashed and set aside.

112. The learned APP with regard to appeal preferred by the

prosecution urged that only after the order dated 17.11.2008 was

passed by the trial Court virtually at the conclusion of the trial, the

prosecution was left with no option but to prefer this appeal. She

urged that even accepting the deeming effect given to the directions

given by the Review Committee constituted under POTA, still the

same would have an effect at the most for withdrawal of the

prosecution under POTA. It was urged that as pointed out by her, A4

and A5 having been also charged for commission of offence under

Explosive Substance Act and so also the offence under other

enactment, the POTA Court could not have released the said accused

and should have ordered to continue the prosecution for such other

offences in accordance with the law. The learned APP urged that the

impugned order is blissfully silent regarding the reasons for which

POTA Court discharged/released A4 and A5 for the other offences

triable under other enactments, other than POTA. It was urged that

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impugned order is manifestly illegal as no cogent and tangible reasons

are ascribed for discharging/releasing the said accused even for offence

under Explosive Substance Act.

113. It was urged that in view of Section 33 of POTA, it was

incumbent upon the POTA Court to transfer the case to the competent

Court empowered to consider whether the case for proceeding against

the said accused for commission of such offences exists or otherwise.

She urged that instead of passing such an order as warranted by the

provisions of law, ordering discharge of the said accused of all the

offences, is an order in excess of jurisdiction. Accordingly, it is urged

that the Writ petition as well as the Appeal preferred by the State be

allowed and the parties (A4 and A5) be relegated before the trial Court

from the stage of passing of the impugned orders.

114. Mr. Sharif Shaikh, learned counsel for the private respondent

in the Writ Petition and Criminal Appeal No.4/2009 countered the

aforesaid submission by urging that even after repeal of POTA by

Repealing Act No.26/2004 the provisions relating to review of POTA

cases were continued though with some modification. It was urged

that considering the power given to the Review Committee constituted

under POTA as modified by the said Section 2(3) of the Repealing Act,

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the same are in the nature of administrative directions required to be

given for discontinuing the prosecution for the offences under POTA

erroneously initiated against the concerned accused. It was urged that

the real purpose behind retaining such provision was to prevent

continuation of misuse of the drastic provisions of POTA even after

Repeal Act. It was urged that the same is abundantly clear by deeming

effect given to the opinion of (withdrawal of prosecution) Review

Committee, if the Committee opines that there is no prima facie case

for proceeding for offence under POTA against the concerned accused.

It was urged that no application for withdrawal of the case under

Section 321 of the Code of Criminal Procedure is contemplated by the

provisions of Repealing Act - as ruled by the Apex Court in the case

of M. A. K. Shaikh (supra), as the directions of the Committee are

binding upon the prosecution.

115. Learned counsel thus contended that in view of the aforesaid

binding nature of the said directions, it will not be open for the

prosecution to assail that opinion arrived by committee. Hence, writ

petition as preferred by the prosecution is not maintainable. It was

urged that the "aggrieved party" can be none other than the first

informant and/or the victim or the relatives of the victim and/or the

accused or his relative. The State or the prosecuting agency cannot be

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said to be aggrieved party entitled to challenge the decision/direction

given by the Review Committee.

116. In support of the said submission, the learned counsel placed

reliance upon the decision delivered by High Court of Delhi in Writ

Petition (Criminal) No.1712/2005 decided on 27.5.2009 in the case of

State vs. IBOTOMBT SAPAMAND and others, Writ Petition

(Criminal) No.754/2006 State vs. Irshad Ahmed Malik and others.

It was urged that after considering the ratio of the judgment delivered

by the Apex Court in the case of M. A. K. Shaikh (supra) the High

Court of Delhi has ruled that the decision of Review Committee after

Repeal Act of 2004 was not only binding on the concerned

Government and Investigating Officer but also on the Public

Prosecutor and on the Court in cases where cognizance had been taken

by such court.

117. The reference was also made to the decision delivered by

High Court of Gujarat on 12.2.2009 in Special Criminal

Application No.504/2008 Sardarji Maganji Waghela vs. Union of

India. It was argued that the question of locus standi on similar lines

was raised therein, the same remained to be considered as the case was

decided on merit.

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118. Learned counsel thus urged that Writ Petition preferred by

the State be dismissed, as the State has no locus standi to challenge

the directions of the Review Committee. Learned counsel alternatively

urged that the direction given by the Review Committee is in the

nature of an administrative fiat, the scope of judicial review thereof

would be very much narrower. He urged that even examining the

matter from the said angle, hardly any circumstance has been pointed

by learned Special Public Prosecutor warranting an interference with

the said direction given by review committee after duly considering the

record and after hearing both the sides. It was urged that the directions

given by the Review Committee amongst other reveals that due

opportunity was given to the State/Prosecution to convince the

Committee on the basis of the record placed before the committee, of

there being a case for continuing prosecution for offences under POTA

against the respondents. The State/Prosecution having failed in said

process and order passed and/or directions given by the committee are

based on cogent reasons, no interference is warranted. That order

can neither be termed as arbitrary or perverse. It was urged that hence

there are no merit in the petition preferred and the same is liable to be

dismissed.

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119. Learned counsel contended that the decision in the case of

S.K. Shukla and Ors. vs. State of U.P. reported in 2005 (7) Supreme

581 is in regard to the provisions of Act and not with regard to the

provisions of Repeal Act. Hence, the same will be of no avail.

Whereas, the decision in the case of of M. A. K. Shaikh (supra) is

directly on the point.

120. Learned counsel further urged that the prosecuting agency

intends to continue the misuse of the provisions of POTA against the

applicants, even though they were not connected with the conspiracy

hatched in Dubai to commit the bomb blasts in Mumbai. It was urged

that the same is clear from the observations made by the Review

Committee in the report. It was urged that in spite of the report being

received on 10th May, 2005, no prompt steps as warranted were taken

thereon by the prosecution. Even Application No.42-44/2005

preferred respectively by A4 and A5 were objected by the prosecution.

Furthermore, in spite of the direction given by this Court while

disposing appeal and writ petition preferred by the respondents, the

same was not promptly complied. Ultimately the respondents A4 and

A5 were forced to make an application to the POTA Court calling

upon Special Public Prosecutor to state whether any steps were being

taken for complying the said directions. It was urged that even

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thereafter no proper compliance was made and an application

purported to be under Section 321 of the Code of Criminal Procedure

but, stating that in the opinion of the learned APP no case of

withdrawal of the prosecution exists was submitted.

121. Learned counsel thereafter supported order passed by POTA

Court by stating that no fault can be found with the same as the

relevant provisions contained in Section 2 (3) (a) of the Repeal Act

envisages that in event Review Committee is of the opinion that there

is no prima facie case for proceeding against the accused, then, the

cases in which the cognizance has been taken by the Court, shall be

deemed to have been withdrawn. It was urged that the said provision

contemplates automatic withdrawal of the prosecution. It was urged

that the said provision, by itself, does not contemplate withdrawal of

the prosecution only for offences under POTA. It was urged that

offences under POTA being only aggravated form of offences under

other enactments committed with specific intention, even the case for

commission of offence under other enactment cannot be continued

after review committee opines that there is no case for proceeding

against the respondent nos.A4 and A5.

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122. It was urged that POTA Review Committee has rightly

pointed out absurdity of the allegations against the applicants of

possessing explosive material even three months after the incidents of

commission of such blasts in Mumbai. Further, there exists no

material in the charge sheet to prima facie establish the involvement of

A 4 and 5 in conspiracy to commit such blasts in Mumbai hatched in

Dubai. It was thus urged that no fault can be found with either

direction given by POTA Review Committee or the order passed by

the POTA Court on 18th November, 2008, which, was following the

pronouncement in the case of M. A. K. Shaikh (supra).

123. At the outset, we may mention that, before we commenced

hearing of these matters, our attention was invited to order passed by

our predecessors to the effect that the Writ Petition will be heard

before hearing the Confirmation Case. However, since these matters

were notified for hearing together before us, we called upon the

counsel appearing for the parties to state as to whether the course

suggested in the previous order should be followed, to which, they

unanimously agreed that the matters pertaining to accused Nos. 4 and 5

can be proceeded along with the other matters. The counsel fairly

accepted that, applying the analogy of separation of trial of absconding

accused, the matters pertaining to accused Nos. 4 and 5 could be

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conveniently dealt with separately, and the outcome of the matters

pertaining to accused Nos. 1 to 3 would not affect their (A4 and A5)

proceedings. This is moreso because the prosecution is relying on

independent evidence against accused Nos. 4 and 5. In the

circumstances, we told the counsel appearing for the respective parties

that, in the first place, the cases pertaining to accused Nos. 1 to 3 will

be fully heard, and thereafter, the cases pertaining to accused Nos. 4

and 5 will be taken up for hearing. Accordingly, after hearing all the

matters in the above manner, we proceed to dispose of the same by this

common judgment.

124. Reverting back to issues arising in Writ Petition and Appeal

filed by the State against accused Nos. 4 and 5, we may straightaway

advert to Section 60 of POTA as also Section 2 of the Repeal Act. The

same read as under:-

"Section 60. Review Committees---- (1) The Central Government and each State government shall, whenever necessary, constitute one or more Review Committees for

the purposes of this Act.

(2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed.

(3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central Government, or as the case may be, the State Government, so however, that the

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concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge:

Provided that in the case of a Union territory, the appointment of a person who is a Judge of the High

Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the concerned High Court.

[(4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding

against the accused under this Act and issue directions accordingly.

(5) Any direction issued under sub-section (4),----

(i) by the Review Committee constituted by the Central Government shall be binding on the Central Government, the State Government and the police officer investigating the offence; and

(ii) by the Review Committee constituted

by the State Government shall be binding on the State Government and the police officer investigating the offence.

(6) Where the reviews under sub-section (4) relating to the same offence under this Act, have been made by a Review Committee constituted by the Central Government and a Review Committee constituted by the State Government, under sub-section (1), any direction

issued by the Review Committee constituted by the Central Government shall prevail.]

(7) Where any Review Committee constituted under sub-

section (1) is of opinion that there is no prima facie case for proceeding against the accused and issues directions under sub-section (4), then, the proceeding pending against the accused shall be deemed to have been withdrawn from the date of such direction."

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"Section 2. Repeal of Act 15 of 2002 and saving--- (1) The Prevention of Terrorism Act, 2002 (15 of 2002) ( hereinafter referred to as the principal Act) is hereby

repealed.

(2) The repeal of the principal Act shall not affect----

(a) the previous operation of, or anything

duly done or suffered under the principal Act, or

(b) any right, privilege or obligation or liability acquired, accrued or incurred under the principal

Act, or

(c) ig any penalty, forfeiture or punishment incurred in respect of any offence under the principal Act, or

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,

and, any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such

penalty, forfeiture or punishment may be imposed as if the principal Act had not been repealed:

Provided that notwithstanding anything

contained in this sub-section or in any other law for the time being in force, no Court shall take cognizance of an offence under the principal Act after the expiry of the period of one year from the commencement of this Act."

(3) Notwithstanding the repeal of section 60 of the principal Act, the Review Committee constituted by the Central Government under sub-section (1) of that section has been made, shall review all cases registered under the principal Act as to whether there is a prima facie case for proceeding against the accused thereunder and such review shall be completed within a period of one year from the commencement of this Act and where the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, then,

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(a) in cases in which cognizance has been taken by the Court, the cases shall be deemed to have been withdrawn;

and

(b) in cases in which investigations are pending, the investigations shall be closed forthwith, with effect from the date of issuance of the direction by such Review Committee in this regard.

(4) The Review Committee constituted by the Central Government under sub-section (1) of section 60 of the principal Act shall, while reviewing cases, have

powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following

matters, namely:-

(a) discovery and production of any documents;

(b) requisitioning any public record or copy thereof from any Court or office.

(5) The Central Government may constitute more Review Committees, as it may consider necessary, for

completing the review within the period specified in sub-

section (3).

125. There is no difficulty in accepting the submission that Section

60 has been enacted in the light of exposition of the Apex Court in

Kartar Singh (supra). We would, first, broadly, analyse the purport of

Section 60 of POTA. It envisages that the Central Government and

each State Government were obliged to constitute one or more Review

Committees for examining cases under this Act. The constitution of

such Committee is also specified by this provision in sub-sections (2)

and (3). The power to be exercised by the Committee flows from

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Section 60(4). This provision is without prejudice to other provisions

of the POTA Act. This provision envisages that application can be

made by aggrieved person to the Review Committee constituted under

Section 60(1) calling upon the Committee to review whether there is a

prima facie case for proceeding against the accused under the POTA

Act and issue directions accordingly. The power conferred in the

Review Committee to examine such claim of the aggrieved person and

to issue directions as may be warranted is coupled with the duty to do

so. Sub-section (5) provides for the binding effect of the direction

issued by the Review Committee in exercise of power under Section

60(4) of POTA. The direction issued by the Committee constituted by

the Central Government is binding not only on the Central Government

but also the State Government and the police officer investigating the

offence. On the other hand, direction issued by the Committee

constituted by the State Government shall be binding only on the State

Government and the police officer investigating the offence. We may

have to elaborate the purport of binding effect to examine the grievance

made before us, which we intend to do a little later.

126. As regards sub-section (6) of section 60, it postulates that

direction issued by the Review Committee constituted by the Central

Government in exercise of power under Section 60(4) shall prevail over

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the direction issued by the Review Committee constituted by the State

Government. What is material to notice is sub-section (7). The said

provision, in no uncertain terms, postulates that, if the Review

Committee is of the opinion that there is no prima facie case for

proceeding against the accused and issues direction in that behalf under

sub-section (4), then, the proceeding pending against the accused shall

be deemed to have been withdrawn from the date of such direction.

This is a deeming provision.

ig This provision has already been

interpreted by the Apex Court in the case of M.A.K. Shaikh (supra). It

has been held that any direction issued by the Review Committee on

such review was binding on the Government concerned and the

Investigating Officer, but not the Public Prosecutor or the Court under

Section 321 of the Code.

127. Reverting to Section 2 of the Repeal Act, it has a saving

provision. This provision not only repeals the POTA Act of 2002, but

also saves certain actions and proceedings referred to in sub-section (2),

notwithstanding the repeal of the Principal Act. The proviso to sub-

section (2) thereof opens with non-obstante clause. It envisages that

notwithstanding anything contained in sub-section (2) or in any other

law for the time being in force, no Court shall take cognizance of an

offence under the Principal Act after the expiry of the period of one

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year from the commencement of the Repeal Act. Sub-section (3), once

again, opens with non-obstante clause. It envisages that,

notwithstanding the repeal of Section 60 of the principal Act, the

Review Committee constituted by the Central Government under sub-

section (1) of that section, whether or not an application under sub-

section (4) of that section has been made, shall review all cases

registered under the principal Act to ascertain whether a prima facie

case for proceeding against the accused in respect of offences under the

Act is made out. It further stipulates that the said exercise ought to be

completed within a period of one year from the commencement of the

Repeal Act. It further provides that, in cases where the Review

Committee forms opinion that there is no prima facie case for

proceeding against the accused, then, in cases where cognizance has

already been taken by the Court, the case shall be deemed to have been

withdrawn, and, in cases where investigation was pending, the

investigation shall be closed, soon after the issuance of direction by the

Review Committee in that behalf. The Apex Court has interpreted

Section 2(3) of the Repeal Act to the effect that in cases where the

Review Committee expresses opinion that there is no prima facie case

for proceeding against the accused, the only role of the Public

Prosecutor in the matter is to bring to the notice of the Court, the

direction of the Review Committee. The Court on satisfying itself as to

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whether such an opinion was rendered, will have to record that the case

stands withdrawn by virtue of Section 2(3) of the repealing Act. The

Court will not examine the correctness or propriety of the opinion nor

exercise any supervisory jurisdiction in regard to such an opinion of the

Review Committee. At the same time, the Apex Court made it clear that

if the opinion of the Review Committee is challenged by any aggrieved

party in writ proceedings and is set aside, the Court where the

proceedings were pending, will continue with the case as if there had

been no such opinion.

128. What is significant to note is sub-section (4) of Section 2 of the

Repeal Act. It authorises the Committee constituted by the Central

Government to exercise powers of the civil Court in respect of

discovery and production of any document, requisitioning any public

record or copy thereof from any Court or office. Sub-section (5) of

Section 2 of the repeal Act is a directory provision. It enables the

Central Government to constitute more Review Committees as it may

consider necessary for completing the review of cases within the

stipulated period under sub-section (3) of the Act.

129. The question is: Whether the direction issued by the Review

Committee is an administrative order or otherwise? On a conjoint

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reading of Section 60 of the principal Act as a whole along with Section

2 of the Repeal Act as a whole, we have no hesitation in taking the view

that, although the direction issued by the Review Committee cannot be

strictly construed as a judicial decision, the mere fact that the Review

Committee is entrusted with powers of the Civil Court under the Code

of Civil Procedure, 1908, in respect of discovery and production of any

document and requisitioning any public record or copy thereof from any

Court or office by virtue of Section 2(4) of the repeal Act, coupled with

the fact that the direction issued by the Committee is made binding not

only on the concerned Government but also the police officer

investigating the offence and that, by legal fiction, the proceeding

pending against the accused is to be treated as deemed to have been

withdrawn from the date of issuance of such direction, it would not

necessarily follow that the Review Committee which is an executive

body is making a judicial decision. For, whether the prosecution should

be withdrawn is the prerogative of the Court in the cases under ordinary

law. At the same time, keeping in mind the purport of Section 60 of

POTA and Section 2 of Repeal Act, it is not possible to hold that the

direction issued by the Review Committee is purely an administrative

direction. We may, therefore, justifiably take the view that the direction

to be issued by the Review Committee will have to be treated as a

quasi-judicial decision. As per the said provisions, the Review

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Committee is obliged to review all cases registered under the POTA Act

(principal Act) to ascertain whether there is a prima facie case for

proceeding against the accused thereunder. For that, it could exercise

powers of the Civil Court in respect of specified matters. The direction

issued by the Committee would bind the concerned Government, as also

the police officer investigating the offence, and, by virtue of legal

fiction, where the Court which has taken cognizance, even those cases

are deemed to have been withdrawn upon issuance of direction by the

Committee. Considering the sweep of the direction issued by the

Review Committee, it would certainly qualify the test of a quasi-judicial

decision.

130. The next question is: Whether the direction issued by the

Review Committee is amenable to challenge and at whose instance?

There can be no debate that, the opinion/direction of the Review

Committee is amenable to challenge under Article 226 of the

Constitution of India. The dictum of the Apex Court in M.A.K. Shaikh

(supra) leaves no manner of doubt that the direction issued by the

Review Committee can be challenged by the "aggrieved person". In the

present case, the State has filed Writ Petition challenging the direction

issued by the Review Committee. Undoubtedly, Section 60 of the

principal Act has been repealed. Although Section 2(3) of the Repeal

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Act empowers the Review Committee to review all cases registered

under the principal Act and further provides for the consequences if the

Review Committee opines that there is no prima facie case for

proceeding against the accused - it is limited to case deemed to have

been withdrawn. No express provision analogous to Section 60(5) of the

principal Act providing for binding effect of the opinion of the Review

Committee on the Government concerned and the police officer

investigating the offence is found in Section 2 of the Repeal Act.

However, because of the wide import of Section 2(3)(a), consequent to

the opinion/direction of the Review Committee, as held by the Apex

Court, nothing more is required to be done except the Public Prosecutor

drawing attention of the Court to such opinion and which in turn after

due verification would pass a formal order of withdrawal of the case

qua the accused concerned. We would, therefore, examine the issue

under consideration on the basis that the opinion/direction of the

Review Committee would bind the Government concerned, as is the

express provision in sub-section (5) of Section 60. In that context, we

have to consider whether it is open to the State Government to

challenge the direction of the Review Committee in any form.

131. The question is: Whether sub-section (5) of Section 60, if it were to be still in force, would denude the State from challenging the

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directions of the Review Committee? No doubt, the said provision mandates that direction issued by the Review Committee under Section

60(4) shall be binding on the concerned Government and the police

officer investigating the offence and the consequence of such direction is that the proceeding pending against the accused is deemed to have been withdrawn. If the concerned Government or the police officer

investigating the offence were to challenge the direction issued by the Review Committee under Section 60(4) of POTA, simply on the grounds of some illegality, such a challenge cannot be permitted

because of the mandate of Section 60(5). For, the direction issued by

the Review Committee is made binding on them. However, if the challenge is founded on the assertion that the direction issued by the

Review Committee is ultra vires and complete nullity, we have no manner of doubt that such a challenge would fall outside the purview of binding effect envisaged under Section 60(5) of the POTA Act. It is

well-established position that, if it is demonstrated that the finding is

perverse, then, such finding would be a jurisdictional error and consequently nullity. Those are matters which will have to be examined on case to case basis. It is not possible to countenance the

argument of the defence that the State is completely prohibited from filing writ petition to question the direction issued by the Review Committee because of the mandate in Section 60(5) of the Act. For,

indisputably, it is the State Government which has to carry the proceedings by prosecuting the offenders involved in the crime against the society, inter alia, offences under POTA, and in particular, offence against the sovereignty and integrity of the nation, such as falling under the POTA Act. Reverting to the decisions pressed into service by the defence Counsel, of Delhi High Court and the Gujarat High Court, will be of no avail.The said decisions are not authority on the proposition

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that even if the opinion/direction of the Review Committee is perverse, suffers from jurisdiction error and is a nullity, it is not open to the

Government concerned to challenge the same. The bar of provision

such as Section 60(5) of the principal Act would be lifted in that situation. In other words, if the direction issued by the Review Committee is a nullity or ultra vires, that would not bind the concerned

Government, nor the police officer investigating the offence notwithstanding the plenitude of Section 60(5) of the Act.

132. We shall now turn to the direction issued by the Review

Committee, which is impugned in the writ petition filed by the State to examine whether it is possible to accede to the extreme argument of the

State that the direction is nullity and ultra vires. The Review Committee has dealt with the case of accused Nos. 4 and 5 in paragraph

17. In the first place, it has noted that Section 4(a) of POTA was not

attracted against these accused, as there was no recovery of arms or

ammunition from them. As regards this opinion, we find the same to be consistent with the evidence / material produced before the Committee. Section 4(a) of POTA could be invoked only if recovery of specified

arms and ammunition is effected from the concerned accused. What has been seized at the instance of accused Nos. 4 and 5 is only articles which were explosive substance, R.D.X. Even the learned A.P.P.

emphasised that recovery of such articles would nonetheless attract provisions of Section 3 of the Explosive Substances Act and Section 4(b) of the POTA Act, on account of unauthorised possession of any arms, dynamites or hazardous explosive substances or other illegal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not. In other words, the prima facie opinion recorded by the Review Committee

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about non involvement of accused Nos. 4 and 5 in the commission of

offence under Section 4(a) of POTA is unquestionable; and the

direction so issued, consistent with the said opinion, cannot be the

subject-matter of challenge, that, too, at the instance of the State.

133. The next opinion noted by the Review Committee, as can be

discerned from paragraph 17 of its purported order-cum-direction, is in

relation to charge under Section 4(b) of POTA on account of recovery

of alleged explosives at the instance of A4 and A5, in the month of

November, 2003. In this context, the Review Committee, first, noted

that the Public Prosecutor did not have any convincing reply to counter

the argument of the defence counsel as to why the accused would keep

such explosive material in their possession for over a period of three

months after the Bomb Blast incidents, which had occurred lastly in

August, 2003. We have no hesitation in taking the view that this view

is completely in the realm of extraneous consideration, not germane to

the requirement of examining the issue as to whether there is or there is

no prima facie case for proceeding against the accused under the Act.

The Apex Court, in the case of M.A.K. Shaikh (supra), has ruled, in

paragraph 89, to the effect that, where there is some evidence that

suggests that a case against the accused might exist, the Review

Committee must allow the proceedings to continue.

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134. Moreover, the test to be applied by the Review Committee

has to be analogous to the parameters to be kept in mind by the Court

while considering the application for discharge by the accused. Even if

we were to take liberal attitude and assume that the prosecution did not

explain the said circumstance, that by no standard, could be the basis

for the Review Committee to proceed on the basis of conjectures and

surmises to answer the matter in issue as to whether there is or there is

no prima facie case to proceed against the accused. For that, what is to

be considered is the evidence collected by the prosecution during the

investigation, even if taken to be as it is, does it indicate commission of

some offence and involvement of the accused. Even if slightest of

evidence is available on record, as observed by the Apex Court in

M.A.K. Shaikh's case (supra), the Review Committee is obliged to

allow the proceedings to continue, and not interdict the same. The

relevant fact is the seizure of unauthorised explosives at the instance of

accused Nos. 4 and 5. The Review Committee could not have ignored

that evidence and doubted the prosecution case on the ground that it

could not explain the stand taken by the defence as to why the accused

would have retained possession of such explosive material even after

the Bomb Blast incidents. We are in agreement with the submission of

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the learned A.P.P. that this reasoning will have to be discarded, being

perverse, a jurisdictional error committed by the Review Committee,

and, therefore, nullity. The manner in which the Review Committee

has addressed this point is nothing short of an attempt to appreciate the

evidence on record. That cannot be the test for examining whether

there is a prima facie case for proceeding against the accused. For

that, the test for consideration of discharge application filed by the

accused will have to be applied, and not indulge in appreciating the

evidence or answer it on the basis of probability or conjecture.

135. The other factor that has weighed with the Review Committee

while examining the charge under Section 4(b) of POTA against

accused Nos. 4 and 5 is that these two accused were not connected with

incidents of terrorism in the four Bomb Blast Cases in any manner,

except their alleged involvement in the conspiracy hatched in Dubai by

the main conspirator, Ansari @ Abdul Rehman, who was killed in

police encounter. The Review Committee, then, found that no

admissible evidence or material was pointed out to show, even prima

facie, that these two accused were party to any such conspiracy. As

regards this aspect, it is well-established position that the accused, who

is charged of being party to the criminal conspiracy need not be

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member of the larger criminal conspiracy. He can be charged of being

party to the conspiracy even if some overt act is committed by him at

any stage of the transaction in furtherance of the conspiracy. The

learned A.P.P. has taken us through the material on record, which

discloses the involvement of accused Nos. 4 and 5, being party to

criminal conspiracy at one stage or the other. The Review Committee

has not adverted to that material at all, though it was on record before it.

A sweeping statement is noted in paragraph 17 that no admissible

evidence or material was pointed out by the prosecution. As a matter of

fact, going by the plain language of Section 60 of POTA and, for that

matter, even Section 2 of the Repeal Act, it obligates the Review

Committee to "itself" analyse the entire material placed before it to

ascertain whether there is a prima facie case for proceeding against the

accused. The Review Committee, therefore, could not have rested its

finding merely because the Prosecutor failed to point out any specific

evidence from the said record assuming that the Prosecutor had, in fact,

failed to do so. Even if we were to accept the opinion of the Review

Committee on this point, we fail to understand as to how the same can

absolve accused Nos. 4 and 5 from the charge of Section 4(b) of POTA,

which can be simpliciter unauthorised possession of explosive

substance capable of mass destruction. As a result, even this opinion

recorded by the Review Committee, on the basis of which, directions

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have been issued, to say the least, is perverse and a case of jurisdictional

error, as a result of which, the same is nullity.

136. The next factor noted by the Review Committee in relation to

charge under Section 4(b) of POTA against accused Nos. 4 and 5 is that

the report of the expert / analyst that R.D.X. and detonators allegedly

recovered from these accused were explosive substances was not placed

before it. Even this opinion is criticised by the learned A.P.P. by

pointing out from the record that the C.A. Report was at page 2566 of

the material placed before the Committee pertaining to the samples of

contraband articles seized at the behest of accused Nos. 4 and 5. The

said report reveals that the articles were explosive substances, R.D.X.,

etc. We find merit in this submission. Accordingly, even this opinion

will have to be discarded, being perverse and a case of jurisdictional

error committed by the Committee resulting in issuance of directions,

which are nullity.

137. To conclude, we may observe that the Review Committee, by

no stretch of imagination, in spite of the material on record, could have

opined that there was absolutely no evidence against the accused 4 and

5 with regard to the charge for offence under Section 4(b) of POTA.

In that case, the Review Committee was obliged to allow the

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proceedings to continue against the accused Nos.4 and 5 at least for the

said charge.

138. We have no hesitation in taking the view that, even if we

were to adopt liberal approach, the basis on which the Review

Committee has recorded opinion that there is no evidence at all against

the accused 4 and 5 with regard to charge under Section 4(b) of POTA

is perverse and jurisdictional error, founded on that opinion, direction

purported to be under Section 2(3) of the Repeal Act was issued, which

is nullity. In view of this finding, the first option for this Court would

be to relegate the parties before the Review Committee for re-

consideration of the matter in relation to charge of conspiracy read with

Section 4(b) of POTA against accused Nos. 4 and 5. Considering

Section 2(3) of Repeal Act, which stipulates that the review of every

case is required to be completed within a period of one year from the

"commencement of this Act"; and, since that period has expired long

back, the matter cannot be sent back to the Review Committee for re-

consideration. The statute having specified outer time-limit for review

of cases by the Review Committee, it may not be possible for the Court

to enlarge that time, which will be the inevitable effect of relegating the

parties before the Review Committee.

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139. Notably, the time-limit specified in the Act is a definite

period of one year from the commencement of the Repeal Act. The

Repeal Act came into force on 21st September, 2004. The Review

Committee could, therefore, validly review the case before expiry of

one year from that date and not thereafter. The review by the Review

Committee thereafter has not been saved by the Repeal Act. In any

case, having taken the view that the opinion recorded by the Review

Committee on three aspects with regard to the charge in relation to

offence of conspiracy and under Section 4(b) of the POTA against A4

and 5, is error apparent on the face of record and nothing short of being

perverse, the same would not only be a jurisdictional error, but nullity,

and, for the same reason, the direction issued by the Review Committee

on the basis of such opinion, in purported exercise of powers under

Section 2(3) of the Repeal Act, will be nullity.

140. Notably, even though the Review Committee is empowered

to issue direction to withdraw prosecution in respect of offences under

the POTA against the accused, the same provision does not empower it

to issue direction for withdrawal of entire prosecution against the

accused for other offences under other enactments. Admittedly,

accused Nos. 4 and 5 were also charged for offences such as under the

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provisions of the Explosive Substances Act. By no stretch of

imagination, the Review Committee could usurp authority to issue

direction to even withdraw the prosecution in respect of offences under

other enactment against accused Nos. 4 and 5. We find force in the

submission of the learned A.P.P. that, even if the Review Committee

was of the opinion that no case to proceed against accused Nos. 4 and 5

was made out in respect of offences under POTA, that did not authorise

the Committee to issue direction to discharge the said accused A4 and

A5 from all the charges, including for offences punishable under other

enactments. Even this issue can be justly raised by the State by way of

writ petition under Article 226 of the Constitution, notwithstanding the

binding effect of the direction in Section 60(5) of the POTA Act, read

with Section 2(3) of the Repeal Act.

141. It is not in dispute that the Special Court has merely acted on

the direction issued by the Review Committee and passed a formal

order of withdrawal of the "entire prosecution" against accused Nos. 4

and 5.

142. To that extent, even the Special Court has committed

manifest error. Even if the Special Court was justified in following the

directions issued by the Review Committee, the directions ought to be

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understood as limited to deemed withdrawal of prosecution against the

concerned accused for offences under the POTA Act alone. The

Special Court, by virtue of Section 26 of the POTA Act, should have

tried accused Nos. 4 and 5 for other offences in the same trial and, at

any rate, could have invoked powers under Section 33 of the POTA Act

to transfer the case of accused Nos. 4 and 5 to regular Court to try

offences simpliciter under other enactments. We, however, eschew

from giving any final opinion on this aspect, as it is not necessary to do

so, in the fact situation of the present case, for the view we have already

taken.

143. If the foundation, on the basis of which, the Special Court

proceeded to pass such order itself is nullity, then, the decision of the

Special Court cannot stand the test of judicial scrutiny. We are in

agreement with the submission of the learned A.P.P. that, in the peculiar

facts and circumstances of the case, the State could not have challenged

the direction issued by the Review Committee in earlier point of time,

except by filing the present writ petition after the decision of the Special

Court withdrawing the entire prosecution against accused Nos. 4 and 5.

144. Taking overall view of the matter, therefore, we have no

hesitation in partly allowing the writ petition as filed by the State and

also setting aside the decision of the POTA Special Court impugned in

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Criminal Appeal No. 4 of 2009. Resultantly, the appeal preferred by

the State, being Appeal No. 4 of 2009, would succeed. We are inclined

to do so having upheld the opinion of the Review Committee to

withdraw prosecution against accused Nos. 4 and 5 for offence "only"

under Section 4(a) of POTA, and not withdrawal of the entire

prosecution including for offence under Section 4(b) of POTA for the

reasons recorded hitherto. As a result, the A4 and A5 are relegated

before the Special Court for being proceeded in accordance with law for

the charges framed against them for all other offences except Section

4(a) of POTA.

145. In other words, the direction issued by the Review

Committee to withdraw prosecution against accused Nos. 4 and 5 for all

offences under POTA will stand modified to direction to withdraw

proceedings against accused Nos. 4 and 5 for charge of Section 4(a) of

POTA only, in the light of the finding recorded hitherto. Thus, accused

Nos. 4 and 5 will have to be proceeded further in accordance with law

for other offences under POTA (other than Section 4(a) of POTA) and

offences under other enactments for which they have been charged and

cognizance is taken by the Special Court. The parties are relegated

before the Special Court to proceed against accused Nos. 4 and 5 in that

regard in accordance with law.

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Consideration of case against A1 to A3

146. After considering the matters pertaining to the writ petition

and appeal regarding the discharge/setting free of A4 and A5 by the

POTA Court, now we shall consider matters pertaining to the trial of A1

to A3. We have given our anxious consideration to the submissions

advanced by the rival parties and carefully perused the entire record

with their assistance in order to ascertain merits from the same for

determining whether finding of guilt of each of the accused was rightly

arrived at by the trial court. However, having due regard to the stand

taken by the defence that there is no dispute about the occurrences

including incidents of explosion and / or the persons having been

killed/injured during the same and / or damage to the property, as

alleged by the prosecution, the analysis will be restricted to the question

of involvement of the A1 to 3 in the said incident.

147. In the first place, we shall deal with the grievance made A 1

to 3 regarding unfair trial.

Grievances relating to conducting trial

Allowing prosecution to put leading questions and/or not deciding defence objections

148. During the course of defence submissions while pointing out

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the evidence of concerned witness and particularly the examination-in-

chief of said witness, the learned Counsel for A1 and A3 had

repeatedly made the grievance that throughout trial an attempt was

made on part of prosecution to put leading questions to prosecution

witnesses. It was urged that in spite of the objection raised on

respective occasion since commencement of trial, that was continued

by the prosecution. That forced the defence to request the Trial Court

to record examination-in-chief of prosecution witnesses in question

and answer form.

149. It was further urged that during recording of examination-in-

chief of prosecution witnesses in such manner some time the objection

raised was decided by the Court. However, on majority of occasions

same were deferred for deciding at the time of the final submissions at

trial. It was further urged that the Trial Court failed to decide such

objections at later stage and even while delivering the judgment, same

has remained undecided. That has resulted in causing grave prejudice

to the defence. It was urged that this Court ought to examine each

objection which was raised and recorded but has remained undecided.

Further, the evidence permitted to be brought on record in such a

improper manner deserves to be excluded from consideration.

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150. Having regard to the said submission the learned defence

Counsel was asked to point out whether after recording of evidence of

the prosecution witness was over and before commencing and

concluding examination of individual accused under Section 313 of the

Code of Criminal Procedure, the defence had moved the Court for

deciding such (undecided) objections and invited order of the Court

thereon. In response to the said query the learned defence Advocate

fairly submitted that they had not moved the Court either by making a

formal application or an oral request to decide those objections prior to

the conclusion of the examination of individual accused under Section

313 of the Code of Criminal Procedure or otherwise. The defence

Counsel were further asked to point out the said objected questions. In

response, in written arguments, they have referred to the relevant

questions and objections. Accordingly, at the end of defence

arguments, the defence Counsel were given liberty to point out the

objected questions put to the prosecution witnesses.

151. In response to the same initially a long list of such questions

asked and objection raised for 103 witnesses examined by the Trial

Court was submitted on behalf of the defence by mentioning witness

wise, page numbers regarding such questions. After commencement

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of examination of the questions pointed out from the said list and after

examining some of them as it was revealed that the same cannot be

said to be leading question; the learned defence Counsel requested for

permitting them to re-check and submit a fresh list and/or to confine

their objection only to certain questions in the said list. That time was

given to the defence counsel. Even thereafter, we noticed that

questions pointed out in the revised chart were apparently not leading

questions. Again time was sought by defence to recheck the said

aspect and confine the objections to selected questions. Ultimately, as

recorded by us in detail in the order sheet form dated 12.11.2011, the

learned defence Counsel confined the objection for the questions

permitted to be asked to PW-2 and PW-4 at page 1216, 1217, 1322 and

1323 of paper book being the leading questions. The learned counsel

also pointed out the objections recorded on pages 1426, 1518, 1544,

1555, 2400, 2415 and 2522 and urged that the objection thereto were

wrongly rejected by the Trial Court. Similarly, the defence Counsel

drew our attention to pages 3646, 3659 and 3555 and urged that

regarding the said questions the objection taken by the defence were

wrongly overruled.

152. The learned APP urged that there is no substance in the

submission about unfair trial to the defence. It was urged that on the

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contrary the record before the Court regarding the relevant respect also

indicates that unnecessarily an attempt was made to raise objection for

every question asked during examination-in-chief in spite of the same

being permissible. She urged that only in order to burden the Court

record if not the Court and/or to disrupt the learned APP in examining

the witness, the defence had deliberately raised those series of

objections. They compelled the Court to avoid disruption of a trial by

recording the evidence in question and answer form. She urged that

the defence, however, did not insist for recording of cross examination

in similar manner - question and answer form. The learned APP urged

that the defence having failed to invite order of the Court on the

undecided objections during the trial itself much less before

examination of individual accused under Section 313 of the Code of

Criminal Procedure, is indicative of defence having waived those

objections, if any. She urged that since only the legally permissible or

admissible evidence and or the circumstances emanating from the same

can be put to the accused during the examination made under Section

313 of Code, not moving the Court for getting the objection decided

from the Court leads to no other inference other than the defence

having waived the objections raised. She further urged that with such a

conduct now the defence should not be permitted to raise this

grievance as allowing them to raise the same would amount to

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permitting them to take advantage of their own wrong with a view to

deliberately some how prolong the proceedings to get away from the

extreme penalty awarded to them, which they deserved for the heinous

crime.

153. The question that arises is about the admissibility of

evidence and or the objection raised thereto. It will not be out of place

to pinpoint the observation regarding such aspect made by learned

authors Woodroff & Amir Ali :in the treaty on the "Law of Evidence

by Woodroff & Amir Ali" 14th Edition wherein the ld. authors upon

the subject have observed at page-317 as follows :-

" The question of admissibility of evidence is a question of

law to be decided by the Judge. Where a Judge is in doubt as to the admissibility of a particular piece of evidence, he should declare in favour of admissibility rather than of non-admissibility. As a general rule evidence should never be shut out. "Under the Evidence Act admissibility is

the rule, and exclusion the exception, and circumstances which under other system might operate to exclude are, under the Act, to be taken into consideration only in judging of the value to be allowed to evidence when admitted". The object of a trial in

every case is to ascertain the truth in respect of the charge made. For this purpose, it is necessary that the court should be in a position to estimate, as its true worth the evidence given by each witness, and nothing, that is calculated to assist it in doing so, ought to be excluded, unless, for reasons of public policy, the law expressly requires its exclusion.

It is further observed on page - 318 of the same book.

"the question as to the admissibility of evidence should

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be decided as they arise and should not be reserved until judgment in the case is given".

The said author has further observed on page-321 as

follows:-

"(b) Varying decisions as to admissibility. An interlocutory order by the court holding that certain evidence is admissible can legally be varied by it, though in practice it is not often done. But a Judge who had refused to accept certain evidence in the first instance has

no jurisdiction to take it again into consideration, unless some explanation or reason can be given for it".

The said ld. author has further on page - 3710 in Vol. 4,

observed as under :-

"It is the duty of the trial Magistrate or Judge to refuse admit evidence which is not admissible according to law.

The fact that a document was admitted without any objection from a party does not entitle the court to admit in

evidence what is in law inadmissible. It may be noted that the reception of inadmissible evidence would be less injurious than the rejection of admissible evidence, because, in the former case, in arriving at a decision the

evidence wrongly admitted can well be excluded from consideration whereas, in the latter case, the evidence wrongly excluded can only be brought upon record by having recourse to further proceeding necessitating thereby the prolongation of the trial and possible harassment to the persons concerned".

154. However, in the same context, the Hon'ble Apex Court in the

case of Bipin Shantilal Panchal vs. State of Gujarat, reported in AIR

2001 SC 1161, observed in paras 12, 13, 14 and 15 to the following

effect.

"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised

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regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is

this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of

the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that

evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices

created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings,

must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of

any material or item of oral evidence the trial court can make a note of such objection and mark the objected

document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate

can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all

other objections the procedure suggested above can be followed.

14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness

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of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that

this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

15. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is

raised regarding the admissibility of any material or any item of oral evidence."

In light of aforesaid observations, the grievance made of trial

Court having not decided objection raised at the threshold would not

survive.

155. Since the question arising is in relation to asking of a

leading question, it will not be out of place to reproduce the legal

provisions pertaining to the same found contained in Section 141 and

Section 142 of the Evidence Act.

Section 141: Leading questions Any question suggesting the answer which the

person putting it wishes or expects to receive is called a leading question.

Section 142: When they must not be asked Leading question must not, if objected to by

the adverse party be asked in an examination-in-chief, or in a re-examination, except with the permission of the court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

(Emphasis supplied)

156. Thus upon plain consideration of the provision of Section

141 of the Evidence Act, it is clear that in order to term a question as a

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leading question the same must suggest the answer which is wished

and/or excepted to be received by the person asking the same. The

said language clearly indicates that the answer must be implicit within

the said question asked. In view of the same, if more than one answer

is/are possible to the question asked and they are not within the

question asked, then, the same cannot be termed as a leading

question. In other words, if the answer either "yes" or "no" is expected

from the question, then the said question cannot be said to be a leading

question.

157. Now considering the provisions of Section 142 of the

Evidence Act, it permits putting of a leading question in certain

contingencies. The earlier part of the said provision relates to putting

of a question during the examination-in-chief or re-examination in the

event of the same being objected by the adverse party, unless permitted

by the Court. Thus, the said earlier part clearly confers discretion upon

the Court to permit asking leading question even during the

examination in chief or re-examination. Considering the purpose for

which trials are held, i.e., "quest for the truth", the Court cannot be a

silent spectator. In that, even if it were to be a leading question, the

Court has ample power to permit it if the question is relating to matters

which are introductory or undisputed or which have been already

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sufficiently proved. Indeed, the later part of the said section makes it

abundantly clear that the discretion conferred upon the Trial Court is

not unguided, untrammeled or arbitrary, as guidelines for exercising

discretion are found in the said provision. The word, "shall" used in

the second part of this Section makes it clear, the circumstances in

which the Court may permit putting of a leading question during the

examination in chief i.e. in respect of matters (a) which are

introductory (b) undisputed and (c) which in the opinion of the Court

has been already sufficiently proved. Thus, it is clear that in the event

of Court having permitted asking leading questions in the

examination-in-chief for such a matter, then, granting of permission

would not amount to improper exercise of discretion or an unfair trial.

158. In this backdrop, we shall now consider the questions in

respect of which objection was raised in seriatim. Firstly, the question

pointed out on page 1216 and 1217 of the paper book and the

objection raised thereto. We do not find any substance in the said

objection raised, as the witness had earlier stated that the bomb was

near the bus stop. By the said question witness was asked whether

Hanif had informed him as to where the bomb was kept at Seepz

(Andheri). The earlier answer given by the said witness reveals that

Hanif had informed him on phone that there was bomb blast in

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Ghatkopar, BEST bus at Ghatkopar and the bomb which was kept at

Seepz (Andheri) had failed. Thus, the said answer conveys two facets

i.e. occurring of bomb blast incident at Ghatkopar and secondly that

the bomb which was kept at Seepz (Andheri) had failed. The objection

is in the context of the second aspect describing the place where the

bomb was kept had failed i.e. Seepz. As aforesaid, the witness in his

previous answer referred to that aspect. In the said context even

considering the answer given by the witness and recorded in earlier

paragraph 13 to the effect, "the first bomb blast which was unexploded

was to be caused at Seepz, in Andheri area as bomb blast was planned

near bus stop on 02.12.2002 ........." This answer conveys the place at

which the said plan was to be executed i.e nearby the bus. Suffice it to

note that the question does not give any clue regarding the nature of

the said bomb or what had happened to that bomb or the place where

the same was left below the seat. In our opinion, the objected question

did not give clue regarding the place at which the bomb was planted.

Therefore, it is difficult to accept that objection. It deserves to be

disallowed.

159. Now taking up the objection raised regarding the question

put to PW-4 Anil Shantilal Pawar and appearing at page 1322 and

1323 of the paper book the relevant questions and the objection raised

is as under:

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Q. Whether you had purchased sim card bearing No. 9892451164? (Ld. Advs. For defence objected question on the ground that it is leading question and it is

regarding contents of documents.)

Ans:-It was purchased.

Q. How many sim cards were bought commencing from No. 98924 as initial digit and which no. they are?

Ans:- Three sim cards were bought. They are 9892451184, 9892451167, 9892451164 were purchased.

Q. What is the reason for not writing full sim card nos. in the challan?

Ans:- The initial digit "98924" are common digits, therefore they are not mentioned again.

Q. Who made signature on the document?

Ans:-Signature was made by representative of Indu

Commercial Corporation.

Q. Whether it was signed in your presence?

Ans:-It was signed in my presence.

Q. Now attention of the witness is invited to Exh.

P-278, who had filled in this form and before whom?

Ans:- The form was filled by customer Mr. Habeeb Umar.

Q. Whether contents of this documents are correct?

Ans:- Yes. (Document is marked Exh. P-280 subject to objection raised by Ld. Advs. for defence. Objection will be considered at the stage of arguments).

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160. PW 4 was examined by the prosecution for proving sale of

simcard to encountered accused Nasir i.e. card which was found in a

mobile on his person after the encounter. It is the prosecution case that

said card was purchased by said Nasir under the name Mr. Habib Umar

from the retail shop in which PW 4 was working. It was purchased

from Indu Commercial Corporation - authorized agent for selling the

card for the mobile company. The said fact had already surfaced on

the record during the prosecution evidence led, including the

examination in chief of PW 4 paragraph 1, 2 and 3. Considering the

fact that the retailer did not purchase a single card but in bunch of

cards; and as the prosecution was concerned only with a particular

card, the relevant question appears to have been put to PW4. The

reference regarding the purchase memo Exh. P-278 regarding purchase

of six card had already surfaced on the record. Thus, the question

cannot be said to be uncalled for or the manner in which the said first

question was framed cannot be said to be a leading question, if

considered in light of the later part of Section 142 of the Evidence Act.

The same is the case regarding the other question asked to the witness

as apparently the said purchase memo was not containing entire 10

digit number of the relevant simcard.

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161. Similarly the case regarding further question put to the

witness for adducing evidence regarding the signature upon said

purchase memo or the person who had filled said form for purchasing

the card also cannot be said to be out of context or an impermissible

leading question as such. Similarly, the last question referred to

above, being put for proving the contents of the documents, the same

also cannot be said to be a leading question. Such a conclusion is

inevitable as none of the said question within themselves was

containing one and only one implicit answer suggested with a hope of

getting the same. Thus, careful consideration of question asked in

examination-in-chief and objection raised and answer received clearly

reveal none of them being leading question, much less impermissible

leading question. Thus, we do not find any substance in the objections

raised and/or infirmity in the conduct of trial due to allowing putting

such questions to the witnesses during examination-in-chief. Hence,

the argument that grave prejudice has been caused to accused while

facing the trial, is untenable.

162. Now considering the other objection, it is regarding

objections improperly disallowed. Out of them first question is found

recorded on page 1426 of the paper book. The said question, objection

raised and the reasoning given for the same is as under.

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Q. Did it happen that after you and the witnesses were briefed by Mr. Wallishetty in crime detection office, you came out of that room?

Ans:- No. I had not came out of the T.I. Parade room.

I had visited the room where I held T.I. Parade on two occasions first for to select the room and secondly to hold T.I. Parade. After my second occasion to visit the parade room, I had came out of that room after holding

T.I. Parade.

Q. Did it happen that at second time when you entered in the parade room you had came out again and

went in other room and close the door and then went in parade room?

Ans.: [Note: Ld. Adv. wishes to ask this question with reference to page two of the T.I. Parade panchanama. In

first para indicating that witnesses were asked by her to sit in adjoining crime detection office. She closed the door of that office and verified that they will not come in contact with others comes after the averment regarding selection

of panchas, however Ld. Cross Examiner is pre-supposing in the question as if the witness had entered in the room

first where T.I. Parade was held and then came out so as to close the door of adjoining room, therefore Ld. Cross Examiner cannot start with imaginary assumption because background has to be created for asking such question.

According to witness he had visited the parade room twice first for to select the room and then according to her she entered in the room and came out after holding T.I. Parade with such admission in the cross-examination, the latter question cannot be allowed hence question is

disallowed.]

163. After carefully considering the said question and the answer

recorded to the preceding question to the effect, "It is correct to say

that after my work was over I had come out of the room. I had not

come out of T.I Parade Room till the work of T.I. Parade was over."

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We are in agreement with the reason given by the Trial Court for not

accepting the objection.

164. Now taking up the next question/objection taken and the

reason disallowing are found recorded at page 1518 which is to the

effect.

Q. Whether the shops of providing C.N.G. kit at

Sion-Koliwada are licensed from the R.T.O.?

(Note: Ld. S.P.P. objected this question on the ground that it is irrelevant as this witness has no personal knowledge about the permission granted for C.N.G. for

those shop keepers. Ld. Adv. May first question about knowledge of the witness as to whether R.T.O. Had approved the shop keepers in Sion-Koliwada then only this question may be put to this witness). (Note: Witness

at this stage states that he is not feeling well therefore he is not in position to give correct dates as according to

him he is under tension. According to him the date may be wrong but he is sure about January 2004. As it is recess time, Ld. Adv. Mr. Wahab requested the Court to Adjourn the case till tomorrow, on the ground of personal

difficulty hence case is Adjd. To 30.10.2005.)

165. The said question as framed, was not for adducing evidence

of PW 15 regarding C.N.G. Gas kit fitted in a taxi. We fail to

understand as to how this question is relevant one at all with the

matter in issue. Besides, we do not find any infirmity about the trial

Court having asked to reframe the said question. At any rate, it

appears that the defence did not pursue that fact later on during the

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cross examination. Moreover, after re-framing of the question, no

further discussion on this would be necessary except adverting to

Section 138 of the Evidence Act which reads as under:

"Witness shall be first examined-in-

chief................................................................................. ....................................................................................... The examination and cross-examination must relate to relevant facts, but the cross-examination need not be

confined to the facts to which the witness testified on his examination-in-chief.

166. The other shop providing C.N.G. Gas kit at Sion-Koliwada

was authorised or otherwise being not, "relevant issue" at the trial, we

do not find fault in the direction given by the Trial Court to reframe

the question. No prejudice is caused to the defence at all.

167. The next question objected and the reason given by the Trial

Court for disallowing the same are found recorded on page 1544 of the

paper book.

Q. This is not in your Police Station.....

(Statement)..... can you assign any reason?

Ans.- (Note : Before answering this question the Ld. cross-examiner to note that previous statement to the Police cannot be used in trial for any purpose unless the witness is to be contradicted with any portion or passage in his previous statement made to the Police. Only significant omission in the evidence in examination-in- chief may be brought on record by asking the witness as

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to whether he had made any such statement to the Police and thereafter questioning the I.O. as to whether any such statement was made by witness in his previous

statement to the Police. Therefore everything which was volunteered by witness in the course of his cross-examn.

Cannot amount to significant omission. Hence, question is disallowed.

168. In this context, explanation to Section 162 of the Code i.e.

the provision added to Section 162 of the earlier Code of 1898 reveals

that by the same parameter of "omission" amounting to a contradiction

were set out.

It is settled legal position that whether a particular

omission amounts to a contradiction is to be determined by the trial

Court. Having regard to the said provision and said omission having

surfaced in the record regarding the volunteering evidence, we do not

find any fault with the reasoning given by the Trial Court for

disallowing the said question.

169. The next question objected and acceptance of the same is

found recorded at page 1555 of the paper book

Q. For how long you were using badge of Rammani Mishra?

(Spl. P.P. objected this a question on the ground that it is misleading question because it presumes that witness was using badge of Rammani Mishra. Hence, question is disallowed.)

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Even though leading questions are permissible in law during

the cross-examination, the said question as framed clearly exhibits

being complex question i.e. the fact of PW 15 using badge of Ram

Mani Mishra and secondly himself using the same for long period.

Careful consideration of the answers given by PW 15 during earlier

cross examination does not reveal any foundation laid for putting such

question, that is to say any answer given by PW 15. In view of the

same, discarding of the said question on the said objection also is

appropriate.

170. The next question objected was asked to PW 97. The same is

found recorded at page 2400 of the paper book.

Q. Have you collected your personal diary or

issued, while you were attached to Crime branch office? (Question is disallowed as witness has already answered to that effect.) Q. Have you worked at Police stn.?

(Question irrelevant, hence disallowed.)

PW 97 Police Officer was examined by the prosecution in

connection with arrest of A2 effected by him along with the other

Police Officers while he was attached to DCP CID Unit-11 i.e. Crime

Branch Unit. The earlier answers received during cross examination

reveals that he was not required to maintain personal diary as he was

attached to Crime Branch Office. We are unable to find any fault

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with disallowing of the question by the Court. Needless to add the

matter in issue at the trial was the said arrest effected by the team of

Crime Branch. Hence the question asked to the witnesses whether he

had worked at Police Station at the relevant time during the cross

examination clearly appears to be irrelevant as rightly ruled by the

Trial Court.

171. The next objected question was put to PW 99 during the

cross examination and objection raised and acceptance for the same is

found recorded at page 2415 of the paper book

Q. Do you know to read and writ Marathi very well?

Question is irrelevant as the question is asked to the witness by the Advocate in Marathi and witness

replied in Marathi, Art. 29 Gelatine stick is in the original form, however it has now become oily. Apart from label Art. 29 colly., there is no other label produced before the Court, bearing my signature.

Now considering the juncture at which such question was

asked is irrelevant. The same has been rightly disallowed by the Court

for the self evident reasons recorded warranting its rejection. The

further answer recorded for the next question were pointed by the

learned counsel for urging that said question disallowed was not

confined to the knowledge of knowing Marathi but was also regarding

his ability to read Marathi and thus the same was asked as a foundation

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for the further question and as such disallowing the same was

improper, also does not appear to be sound submission, in view of

answer received from the by witness for the next question. Further

more the deposition of PW 99 till then recorded also do not reveal any

justification.

172. The next aspect pointed out relating to objection raised is

found recorded at page (2522). That objection was kept open. The

same apparently relates to omissions occurred in the evidence of PW8

to tell certain matters during recording of his police statement. It

appears that it was the submission of learned Special Public Prosecutor

that Hasanbhai and Rizwan were arrested, the fear was lost. The said

point was kept open by the Court at the time of argument. The

relevancy of the said question or the said omission was amounting to

contradiction has not been shown to us by the learned defence counsel.

At any rate, the said aspect also does not appear to have been vitally

connected with the matter in issue. Moreover, even later on the

learned defence counsel having not perused the matter for getting the

said objection decided, we do not find any plausible reason for

determining the said objection which was waived by the defence at the

stage of the argument.

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173. Thus, considering each of the questions for which the

submissions were canvassed, we are unable to find any substance in

the grievance of the defence that it is a case of mistrial.

Circumstances/evidence not put to the accused during 313

statement

174. The defence counsel made a grievance that judgment of Trial

Court reveals amongst other evidence reliance being placed upon

(i) the confessions of A1, A2 and A3 during the course of

investigation and

(ii) the matters emerging from the reports of a Chemical

Analyser pertaining to the material allegedly seized during the course

of the investigation and sent to them for the purposes of examination

for arriving at the conclusion of guilt of the accused for which they

were convicted and sentenced.

It was urged that after taking into account purpose behind

incorporating the provision of examination of accused under Section

313 of Cr.P.C. being primarily for giving him an opportunity to

explain circumstances appearing against him in the in evidence, it was

necessary for the trial Court to put the incriminating circumstances to

A1, A2 and A3 during their examination under Section 313.

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175. Mr. Pasbola, in the said context placed reliance on the

decisions in the cases of Kaur Sain vs. State of Punjab reported in

AIR 1974 SC 329; Anant B. Kamble vs. State of Maharashtra

reported in 1995 Cr.L.J. 2583; Inspector of Customs vs. Yash Pal

reported in 2009 All MR (Cri) 1195 (S.C.) to contend that said

decisions clearly reveal importance of examination contemplated

under Section 313 of Cr.P.C. and the purpose behind it and that in the

event of incriminatory material ought to be put to accused during said

examination being not put, then the Court is required to leave the same

out of consideration. The learned defence counsel further urged that

otherwise placing reliance upon such material would be causing great

prejudice to the accused resulting in denial of fair opportunity to meet

the material against him. It was urged that the trend of latest

decisions reveals that in the event of such a material being not put to

the accused, the appellate Court can either send the matter for such

purpose to the trial Court or itself put the same to concerned accused.

The learned counsel further urged that not putting material of such an

immense importance to A1, A2 and A3, and relying upon the same

while arriving at the finding of their guilt clearly indicates the trial

being unfair to them. It was urged that considering the incident for

which the case is going on having occurred in the year 2002-2003, and

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accused being in jail since their arrest in the month of August, 2003 ,

now it would be improper to remand the matter for such a purpose to

the detriment of the right to speedy trial.

176. The aforesaid submissions were countered by the learned

APP by submitting the same being devoid of any merit.

177. The learned APP thereafter by drawing attention to sub-

section (1) of Section 313 urged that considering the stage at which

the said examination is effected, reveals that primarily such an

examination is required to be effected regarding the circumstances

appearing in the prosecution evidence against the concerned accused.

She urged that though the word "prosecution" is not used in sub-

section (1), still considering the provisions of sub-section (1) and so

also presently added the provisions of sub-section (5) by amending

Act No.5 of 2009 logically leads to the conclusion of the said

examination being in relation to the evidence adduced by the

prosecution. It was urged that such a conclusion is inevitable

considering the gamut of a trial of a sessions cases provided under the

Code which contemplates the stages of the prosecution evidence,

examination of the accused and considering the aspect passing order

under Section 232 of Cr.P.C. and thereafter the defence evidence. She

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urged that it cannot be gainsaid that examination of an accused is

contemplated upon the defence evidence, if any, because the same is

unlikely to contain any incriminating circumstances against him due to

the same being adduced in support of his defence. She urged that

having regard to the same and in stricto senso the confession made by

an accused as got recorded by the investigating agency as per the

provisions contained in POTA, it is difficult to perceive that the same

can be said to be on par with the prosecution evidence. It was urged

that not putting the questions to the accused about the incriminatory

matters contained in his confession, cannot be said to be detrimental as

tried to be canvassed on behalf of the defence. The learned APP added

that it cannot be lost sight of the fact that even no cross-examination is

permitted regarding the said matters stated in the confession.

178. It is her alternate submission that with regard to the matter

pertaining to the confession, the same can be divided into two parts i.e.

the first part relating to the material regarding recording of a

confession of the concerned accused and secondly the matter contained

in the confession statement. The learned APP by inviting our attention

to the record of examination of each of A1, A2 and A3 submitted that

it reveals that the same fully belies the defence submission of the

material regarding the first part pertaining to the recording of the

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confession of each of accused being not put to each of them. She

further urged that considering the purpose behind examination of the

accused being not an empty formality, considering the answers to the

last question put to each of the accused, the record clearly reveals that

even the material regarding the matters contained in the confession

was put to each of the accused. The learned APP also placed reliance

upon decision in a case of Wariyam Singh and ors. .vs. State of U.P.

reported in AIR 1996 S.C 305 in support of her proposition that

putting gist of the matters pertaining to the confession has been held to

be substantial compliance and the same amounting to not causing any

serious prejudice to the accused.

179. The learned APP further urged that considering the answers

received to the said questions, it is amply clear that no further

questions regarding the said matters were required to be put - as

putting the same would have amounted to making futile exercise

and/or observing empty formality. It was urged that such a conclusion

is apparent after considering the said answer received regarding last

question put to A 1 to 3 respectively regarding the matters contained in

the confession made. In the said context the learned APP by inviting

attention to sub-section (5) introduced by the amendment effected to

the Code of Criminal Procedure by Amending Act 5 of 2009 urged

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that the same reveals that the Court can take help of the Prosecutor

and defence counsel in preparing relevant questions which are to be put

to the accused. It was urged that considering the purpose for which the

criminal trials are held and the settled position that the Prosecutor and

even the Advocate for the accused are essentially Officers of the Court,

the defence counsel was free to formulate questions to be asked to the

Accused and suggest it to the Court. Having failed to do so, it is too

late in the day to make this grievance. She urged that though it is true

that the amended provision came in force since 31.12.2009, still even

prior to the same it would have been the duty of the defence counsel to

assist the Court by pointing out certain questions which according to

them had remained to be put to the accused rather than trying to make

capital of the same before this Court. The learned APP further

submitted that even the decisions pointed out by the learned counsel

for the accused reveals that any material circumstance remained to be

put to the accused, can be put to him through his Advocate by the

Appellate Court or the matter can be remanded to the Trial Court for

such a purpose. It was urged that in spite of the arguments being in

progress for quite some time and the discussion about the said aspects

occurred during the proceedings having revealed such a mode being

permissible, still even at the conclusion of the arguments in these

proceedings, the learned defence counsel did not bother to point out

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questions which had remained and ought to be put to the accused. She

urged that thus futile attempt is made for finding out some loopholes

for wriggling out of the punishment rightfully awarded by the trial

Court to the accused. She urged that for all these reasons, the

submission under consideration deserves no credence.

180. Considering the disclosure contained in the confession of the

accused and so also because the evidence of confession are made

permissible under the provisions of POTA, the submissions canvassed

by the learned APP deserves acceptance. Similarly, considering the

provisions of Section 313 of Cr.P.C., we also find substance in her

submission that the word used in sub-section (1) of Section 313

"appearing in the evidence against him" deserves to be construed as

prosecution evidence. Thus, matters contained in the confession not

put to A1, A2 and A3 cannot be said to be detrimental or the same

cannot be said to be a circumstance causing prejudice to them. At any

rate, in the facts of this case, we do not find it necessary to decide the

wider aspect as to whether the confession of accused can or cannot be

treated as prosecution evidence. For, we find that there has been

substantial compliance of putting the questions regarding the

confession i.e. regarding recording of the same and the matters

contained in the confession.

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181. However, before dilating about the same and with regard to

the decision pointed out by learned counsel for the accused, the

reference to the decision in the case of Shivaji Sahabrao Bobade .vs.

State of Maharashtra reported in 1973 (2) SCC 793 delivered by

three- Judge Bench of the Apex Court reveals the observations made

in paragraph no.16 to the effect:

"It is trite law, nevertheless fundamental, that the

prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area

may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice

occasioned by such defect must be established by the accused. In the event of evidentiary material not going

put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards

the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if

the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction."

(emphasis supplied)

182. Having regard to the observations made in the three-Judge

Bench decision, we do not propose to make any detail discussion

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about the other decisions relied by the defence except stating that in the

present case, the said decisions also would be of no assistance to the

accused persons.

183. We say so because the record before us reveals that PW88

DCP Vinod Lokhande had recorded confession of A1 and so also that

of A2, while PW 90 had recorded the confession of A3. Now perusal

of Exh.P-615 i.e. record of the examination of A1 and more

particularly question Nos. 1106 to 1250 from the same pointed out by

the learned APP, in no uncertain terms reveals that all the questions

pertaining to recording of the confession of said three accused by the

three Recording Officers were put to respective accused. Similarly

perusal of Exh.P-616 i.e. record of examination of A2 and more

particularly question Nos. 1106 to 1250 from the same pointed out by

the learned APP, in no uncertain terms reveals that all the questions

pertaining to recording of the confession of said three accused by the

three Recording Officers were put to him. Similarly perusal of

Exh.P-617 i.e. record of examination of A3 and more particularly

question Nos. 1106 to 1250 from the same pointed out by the learned

APP in no uncertain terms reveals that all the questions pertaining to

recording of the confession of said three accused by the three

Recording Officers were put to her. Without dilating in detail

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regarding the matters stated in the said questions put to respective

accused, it can be safely held that grievance of questions pertaining

to recording of confession of the respective accused were not put to

him/her, is without any merit.

184. Now considering question no. 1660 put to A1 and as

revealed from the examination at Exh.615, A1 was specifically asked

the question to the effect "do you want to say anything about your

confessional statement Exh.506-A recorded by DCP Shri Lokhande

PW88 which is now read over to you?". A1 had answered that all the

contents of the confessional statement at Exh.506-A are incorrect and

the facts appearing in above confession Exh.506-A were not stated by

him.

185. Now considering Exh.616 pertaining to the examination of

A2, it reveals that he was asked similar question i.e. question no. 1660

with change of exhibit number of his confession as 506-A. A2 had

answered the said question by stating that confessional statement was

already prepared by investigating officer and he was asked by DCP

Lokhande to make signature on the confession which was already

prepared. Further, contents of Exh.506-A have not been stated by him.

Thus, confessional statement is a false document.

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186. Perusal of Exh.617 examination of A3 also reveals that

similar question no.1660 was put to her with a change of exhibit

number of her confessional statement (Exh.522-A) recorded by DCP

Mrs. Archana Tyagi PW90. A3 answered to the said questions that her

confessional statement read over to her was false and the facts stated

therein were not stated by her.

187. Thus, considering the said question no. 1660 put to each of

the accused, it is crystal clear that the same was pertaining to the

matters stated by respective accused in their confession to the

Recording Officer. Now considering the answers to the same given by

respective accused, it is clear that each of the said accused was given

an opportunity to explain the contents of his/her confession. Their

answers have also been recorded. In view of the same, it was rightly

canvassed that it does not lie in the mouth of the defence to contend

that the matters from the said confession were not put to the respective

accused. The argument that it was necessary to put each of the matter

stated in the confession made by respective accused, is devoid of

merits. Needless to add that examination contemplated under Section

313 of Cr.P.C. should be meaningful. After receiving such answers

from the accused, again putting each of the matters from the confession

would have rendered the same as an exercise in futility.

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188. Furthermore, as pointed out by learned APP, the learned

defence counsel being well aware of the legal position explained

succinctly in the case of Shivajirao Bobade (supra) i.e. not putting

circumstance to the accused, by itself would not be ipso facto vitiating

the trial, no attempt was made on their part to offer any explanation for

the circumstances from the confession and C.A. report which

according to them were not put to the accused. The only submission

canvassed was that after lapse of time after the incident , remanding the

matter to the trial Court would be detrimental to the right of accused to

have speedy trial. Accordingly, we are unable to find any merit in the

submission advanced.

Not putting the matters from C.A. report to A1, A2 & A3

189. The grievance made by the learned counsel for A1 and A2 is

more or less on the same lines which we have rejected earlier.

According to the defence, not putting the matters from the C.A.

reports regarding the material which was either seized from the spot of

the explosion and/or from the house of A1 and A2 or from the places at

which the contraband was recovered as a sequel to the statement

leading to recovery of the same made by them, has resulted in

miscarriage of justice. It was argued that it is prosecution case that

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gelatin sticks were used in preparing bomb for attempting to cause the

blast at Seepz and for causing at Ghatkopar and RDX was used for

preparing bomb which had caused explosion at Zaveri Bazar and

Gateway of India. Further, the accused persons were found in

possession and/or connected with such a material being revealed from

recovery of similar material either from their house or the place

pointed by them. Therefore, it was necessary to put the relevant CA

report regarding such material seized from respective place and sent to

C.A. for examination. Failure to do so has caused prejudice to them,

having an effect of vitiating the trial on the same count as canvassed

for the matters from confession.

190. The learned APP countered this submission on the similar

arguments already adverted earlier. She submits that questions

pertaining to the seizure from respective places were put to each of the

accused. They did not take any stand of either some other material

being found at the said places and/or the material seized from the

respective places being not sent to C.A. for examination and/or some

other material being sent inspite of evidence placed before the Court

that the material sent to C.A. was received by him in intact condition.

It was urged that the matters from the C.A. report again in stricto senso

being not the evidence but the opinion arrived by C.A. regarding the

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material examined and no stand being taken by the accused as pointed ,

the grievance made on the part of defence is without any merit. The

learned APP has also placed reliance upon the decision in the case of

State (Delhi Administration) .vs. Dharampal reported in (2001) 10

SCC 372.

191. In the said context, without unnecessarily reciting in detail

from the record of examination of each of A1 to A3, it reveals that

evidence regarding seizure of the said material from the respective

places and/or sending the same to the C.A. was put to each of the said

accused but the accused did not take any stand in that behalf. It is,

therefore, difficult to perceive that substantial compliance of drawing

attention of the accused person to the incriminating material against

them was not made. In other words, there is no substance in the

grievance that opportunity as contemplated under Section 313 was not

given to the respective accused. It can be further added that somewhat

similar position has been spelt out from the decision in the case of

Dharampal (supra) pointed out by learned APP and particularly the last

line from the paragraph no.15 of the said decision to the effect

"in our view in such cases it is enough if the attention of the accused is brought to the report or the certificate, as the case may be. It is not necessary that contents of the report be also put to the accused."

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Needless to add that no explanation has been offered before

us by the defence Counsel. Resultantly, we have no hesitation in taking

the view that no prejudice has been caused to the Accused. It is

certainly not a case of mistrial at all.

Grievance regarding four incidents clubbed together and/or regarding the charges framed.

192.

With regard to the grievance regarding the clubbing of four

incidents together, we may advert to Section 219 (1) and Section 220

(1) of the Code . The same reads thus :

"219. Three offences of same kind within year may be

charged together-

(1) When a person is accused of more offences than one

of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not

exceeding three.

(2) .....................

220. Trial for more than one offence -

(1) If, in one series of acts so connected together as to

form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence."

(2) ................

(3) ................ (4) If several acts, of which one or more than one

would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one

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trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.

(5) ................

193. It is beyond any dispute that in the present case charges

framed are for commission of offences in four incidents occurred on

different dates and/or different places. Indeed, Section 219 limits

clubbing of only three offences within a year to be tried at one trial.

However, still it is difficult to accept the defence criticism that

clubbing of four incidents together at one trial was in contravention of

any law and the same caused prejudice to the accused and/or has

resulted in failure of justice. For, Section 220(1) makes it abundantly

clear that trial can be held for more than one offences if the acts

constituting the same are committed in the same course of transaction.

Further, Section 220(4) also makes it clear that out of several acts

committed and the same constituting offence if are constituting

different offence when combined, then the same can be tried at one

trial for the offence constituted by such acts when combined.

194. On the aforesaid backdrop, it may be noted that the

prosecution case is that the offences for which the accused persons are

charged at the present trial were committed by them as a result of

conspiracy hatched initially at Dubai and progressively developed in

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India and the object of the same being commission of terrorists acts i.e.

the acts of attempting to cause or causing explosion at four different

places i.e. Seepz , Ghatkopar, Zaveri Bazar and Gateway of India.

Since it is the prosecution case that acts committed by A1, A2 and A3

were for achieving the object of conspiracy hatched and the combined

overt acts committed by them being preparing the bombs and planting

of bombs at the said places makes it crystal clear that all the acts

designed to achieve the said object would be required to be treated as

closely connected with each other and as such being committed in the

same course of transaction. Without making unnecessary detail dilation

about the said aspect, it can be safely said that matters stated in

confession of each of the said accused prima facie reveals the acts

committed by him were for achieving object/design of the conspiracy

hatched. Furthermore commission of such acts by the same person by

playing his role for every episode being the pointer towards himself

being the conspirator of the conspiracy alleged. It is also difficult to

accept that without the said accused being tried at one trial, the

prosecution could establish his involvement in the conspiracy.

195. As a matter of fact, the prosecution evidence clearly points

out that the blasts at Zaveri Bazar and Gateway of India were done on

the same day one after the other in furtherance of the conspiracy. That

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in any case would form series of acts so connected together as to form

the same transaction by same accused. That offence occurred within a

span of one year from the first offence at Seepz on 2 nd December, 2002

followed by the second at Ghatkopar on 25th July, 2003. Thus, there is

no breach of Section 219 of the Code. Furthermore, merely because

the offences in more than one transaction being tried together by itself

is not enough unless it is shown that prejudice is in fact caused to the

Accused in defending himself at the trial. No pin-pointed submission

in this regard has been made before us. Needless to add that the

provisions pointed out being relating to the procedural aspect and not

relating to violation of substantive right vested in the accused and

justice/law being not mistress of the procedure and even violation of

the same to the detriment of defence being not shown, the submission

canvassed will deserve to be rejected. Thus examining the matter from

all angles, we do not find any substance in the same.

Grievances regarding the charges framed at trial.

196. Mr. Pasbola, learned counsel for A3 and so also Mr.

Kunjuraman, learned counsel for A2 had made the grievance as stated

earlier regarding the charges framed. Before considering the said

grievances it will be necessary to say that the legal position regarding

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framing of charge has been fairly settled by catena of decisions

delivered by the Apex Court to the effect that mere error or omission in

framing of charge by itself would not vitiate the trial unless and until

it is shown that thereby the accused was prejudiced to the extent of

having caused miscarriage of justice. The same is obvious as the

charge is mainly framed for giving a fair idea to accused facing the trial

to know the case which he is supposed to meet. Thus, examining the

matter from the said angle in event of the accused having understood

the case against him at the trial and undergoes the gamut of trial, then

it will not be open for him to make a grievance regarding minor

discrepancies, errors, defect in the charge framed unless and until the

same has resulted in mistrial or miscarriage of justice.

197. On the said backdrop, upon examining the charges framed

at trial, the same do reveal that specific date of hatching of conspiracy

has not been depicted in the same. However, considering the numerous

acts committed in pursuance of the conspiracy and the long drawn

period over which such acts were committed for furthering object of

conspiracy, it would have been practically impossible to specify the

date of hatching of conspiracy and/or the acts committed by each of

conspirator during the course of the continuance of the conspiracy.

Having regard to the same and having regard to the observations of the

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Hon'ble Apex Court amongst other in para-18 in the case of Nazir

Khan & Ors v. State of Delhi reported in (2003) 8 SCC 461 to the

effect :-

"Privacy and secrecy are more characteristics of a conspiracy, than of loud discussion in an elevated place open to public view. Direct

evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or by circumstantial evidence. It is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object,

which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be

carried out, all this is necessarily a matter of inference".

(emphasis supplied)

It cannot be said that charge firstly having failed to specify

the date of hatching of conspiracy can be considered as defective

charge framed at the trial. Needless to add, no prejudice is shown to

have been caused to A3 or any other accused. In the same context, the

perusal of the decision in the case of Dinesh Seth vs. State of NCT of

Delhi reported in (2008) 14 SCC 94 : (2009) 2 SCC (Cri) 783 and

paragraph nos.20 and 21 from the same relied by learned counsel for

A3, will be of no avail. In the said decision, the concerned accused

was charged for commission of offence under Section 498-A and 304

(B) of IPC. The Court therein had come to the conclusion that details

of the acts constituting cruelty being not mentioned in the charge, the

same occasioned prejudice to the accused. The position in the present

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case being different, the said decision cannot be of any assistance to

the defence.

198. Similarly, the observation in the case of Nazir Khan (supra)

also makes it abundantly clear that no importance can be given to the

grievance made that in spite of the prosecution case was that Nazir

(encountered) was the main architect of the conspiracy, still his name

is not mentioned in the charge framed as co-conspirator. This has

resulted in charge framed being defective and/or the same having

resulted in miscarriage of justice due to having caused prejudice to the

accused. Even this argument does not commend to us. Moreso,

because the defence has failed to pin-point what prejudice is in fact

caused to the defence. Nothing of that has been shown to us. The

same reasoning would apply for not accepting general submission

canvassed of charge framed being blissfully vague and/or charge for

every distinct offence being not framed. It is difficult to accept the

said criticism after reading charge Exh.P-5 as a whole as the same

fairly depicts the prosecution case against A1 to A3.

199. Now with regard to the grievance made by the learned

counsel Mr. Kunjuraman with regard to charge framed at head fifthly

of the same being vague as the same amongst other only contains the

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recital "of A1 to A3 on or about 25.8.2003 about noon time

proceeded towards the junction of Dhanji Street and Yusuf Meher

Ali Road at Mumba Devi Road and had planted a bomb etc." It does

not specify act precisely committed by A2. It is difficult to accept this

submission in light of the fact of the prosecution case of bomb being

planted in a taxi - was kept waiting at the said place under the guise of

parking and the same having exploded. One cannot loose sight of the

purpose behind framing of charge, envisaged under provisions of

Section 218 onwards of the Code of Criminal Procedure. The matter

stated in the charge and so also the charge head sixthly for which also

similar sort of grievance was made by learned counsel , clearly gives

an idea of act of planting a bomb for causing an explosion being jointly

committed by A1 to A3. Since the charge was depicting main act

jointly committed giving necessary notice to the concerned accused

regarding accusation which he is supposed to face at the trial, the said

submission cannot be considered as an error or defect in a charge,

much less qua A2. It is too late in the day to raise this ground, that too,

in absence of factum of prejudice caused to the defence is shown.

Needless to add that it has not been brought to our notice that any

attempt was made by the defence during the prolonged trial to invite

attention of the trial Court to the so called errors , if any.

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Grievance regarding witnesses being planted by the prosecution & opportunity not given to examine the defence witness

200. With regard to the aforesaid grievance made by learned

counsel for the defence that surprisingly enough all main witness /

witnesses examined by the prosecution regarding identity of the

concerned accused connected with the four main incident to which the

case relates, have asserted that they have identified the accused

concerned i.e. the accused identified by them as connected with the

said incident, due to occurrences of some quarrel ( bacha-bachi) or

scuffle with him. It was urged that this indicates that the witnesses

were not truthful witnesses and/or having been planted by the

prosecution. The submission canvassed that thus all of them deserve to

be termed as a chance witness and their evidence regarding the relevant

aspect being not corroborated by any other independent evidence was

liable to be discarded on the said count alone.

201. It is not possible to countenance this argument. In our

opinion, the evidence of each witness will have to be read as a whole.

Even if we may agree that every witness claims to have identified the

accused concerned because of happening of particular event at the

relevant time, that does not warrant disregarding the witness as a

whole. Without giving the details of prosecution witness, at the

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present stage, it can be safely said that with regard to first incident the

witness had come across accused persons while boarding the bus, the

position regarding the second incident is no different as he was also a

passenger who had scuffle with the culprits while alighting the bus.

With regard to the third incident, witness appears to have come across

concerned accused during the course of travelling on the road. In the

fourth incident the witnesses came across accused persons having

visited Gateway of India in a taxi.

ig The said brief narration

regarding the place at which the prosecution witness came across the

concerned accused reveals the stated reason given by the respective

witnesses was probable one. It is, therefore, difficult to accept that

merely because the witnesses were either passenger, a passerby on the

road or the hawkers or the person working at pay and park etc. by itself

would not be a good ground to term them either as unnatural witness or

a chance witness as tried to be canvassed. The same is apparent as

evidence of each of the witness reveals the reason behind the said

witness being at the particular spot. Notably, the reason given by the

respective witnesses remained un-shattered during the cross

examination. In that case, their evidence is not liable to discarded on

the argument under consideration. Apart from the same even

presuming that the witness appearing to be a chance witness

i.e. "witness claiming to be witnessed for the incident due to having

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reached the place of incident by sheer chance" which does not appear

so in the present case; still the evidence of even chance witness will

not be liable to be discarded on that count alone as at the most his

evidence will be required to be assessed with due care and caution. In

view of the same it is difficult to accept said criticism.

202. In the context of further submissions that evidence of the

said witnesses is liable to be discarded on the count of their evidence

lacking support of corroboration from some other independent

evidence, it will be necessary to say that the same being contrary to the

legal position will not deserve credence. The reference to the decision

of Apex Court in the case of Vadivelu Thevar vs. The State of

Madras reported in AIR 1957 SC 614, wherein Hon'ble Apex Court

while considering the question of Court insisting upon plurality of a

witness in a murder case, in paragraph nos. 11 and 12 amongst other

regarding type of witnesses has observed:-

"11. In view of ........................................................................

case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

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12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be

above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no

difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral

evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise when only a single person is available to give evidence in support of a

disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and

free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain may precedents where the court had to

depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where

there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a

single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witnesses, which is the only reliable evidence in support of the prosecution."

203. Considering the above, in event of witness being found to

be from category " reliable witness", then no corroboration for him

would be necessary. Whether the prosecution witnesses are reliable

or otherwise will be required to be firstly ascertained and in the event

of a finding that he/she is not a reliable witness then only the question

will arise of seeking corroboration for his evidence and/ or discarding

the same in absence of same. Even the case regarding investigating

agency having planted concerned witnesses will be required to be

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determined after considering the evidence of the said witness as a

whole and in the light of other evidence surfaced at the trial.

204. In the same/similar context, the grievance was made by

learned counsel for A1 that though effort was made by the defence to

establish nexus of a particular witness by examining defence witness

and/or by seeking summons for production of the documents to throw

light upon the connection of witnesses, particularly that of panch Shri

Popat, but, the court rejected the request to issue summons to that

witness. It was also urged that the defence had also not received

proper opportunity to establish the defence by examining the witnesses

intended to be examined by them due to witness was either discharged

by the court or the summons being not issued.

205. The said submissions were rightly repelled by learned APP

by pointing application dated 22nd January 2005 Exh.D-94, made by

A1 and particularly item nos.4 to 9 therein by which the said accused

had sought witness summons i.e. for the production of documents and

examination of witnesses with regard to the press cuttings pointed out

that in the said application. The addresses of the said press reporters

were not mentioned. Besides, statement was made that in case of

their need, the same would be furnished to the Court, for summoning

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the witness. The learned APP thereafter by inviting attention to the

order dated 4th September 2008 passed by the trial urged that the said

order in clear terms reveals that learned counsel for A1 had made

statement that he does not want to lead any oral evidence and has

finished defence evidence. According to learned A.P.P., this

document also reveals that direction was sought against the

prosecution for producing photostat copy of confessional statement of

A8 Dr. Abdul Wahid in another POTA case i.e. Special Case No.2 of

2003. It was urged that photostat copy not being the primary

evidence, the same was rightly rejected by the Court. It was further

urged that similarly the witness Gulabrao Pole summoned was

required to be discharged because document sought to be proved

through him was not produced by the defence. The position as pointed

by learned APP is supported from the order sheet. We find it difficult

to accept the grievance of the accused person of not being offered fair

opportunity to them for producing defence evidence. In fact, they

themselves had closed the defence evidence. Thus, there is no

question of any injustice caused to them.

Grievance regarding evidence of chief IO PW103 and incidental matter

206. It was urged on behalf of the defence that PW103 has given

material part of his evidence regarding investigation effected on the basis of

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note-sheet prepared by him and not on the basis of the case diary. It was

urged that on that count alone his evidence will have to be discarded. It was

urged that his evidence itself denotes that he has not carried out the

investigation as required by the provisions of POTA. It was contended that in

event of the said witness not remembering any matter, it was permissible for

him to give the evidence on the basis of case diary which in fact was never

brought by him at any point of time in the Court. However, instead of the

same such a course adopted by him creates grave doubt about the matters

spoken by him during the evidence. It was urged that same also denotes that

investigation was carried out by inferior officer than prescribed under POTA

for meaningful purpose. The same has caused grave prejudice to the accused

as proper investigation was not effected regarding the explosions occurred

and accused have been unnecessarily made scape goat due to lack of

investigation by a competent person.

207. The reliance placed by learned APP upon the decision in the case

of Kalpnath Rai .vs. State reported in 1998 Cri.L.J. 369 and particularly

paragraph nos. 93 and 94 of the said judgment for repelling the said

submissions clearly appear to be misplaced. A careful perusal of the

observations made in the said paragraph nos. 93 and 94 reveals that the same

pertains to "daily diary" i.e. station diary maintained at the Police Station and

production of the same at the trial being neither desirable nor feasible as the

same would be impairing the function at the Police Station and in view of the

same Apex Court had not given any credence to grievance made for non-

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production of the said diary at the trial of Kalpath Rai and others. The

grievance made on behalf of defence being regarding non-production of case

diary and not daily diary/station diary, the said decision would not be useful

to the prosecution for meeting the said submission.

208. The reference to the noting regarding aforesaid aspect is found

made in the notes of evidence on page 2498, the same is to the effect :-

"At this stage the witness requested the court to allow him to refer the dates in respect of the investigation, as he has carried out the investigation in four matters and he does not

remember the exact dates. Permission is granted, subject to providing the copy of the note sheet, which the witness wants to refer. Witness produced copy of note sheet. It is t.o.r and marked for Art.X-1 for identification, Copies provided to the otherside."

209. After considering the aforesaid noting it is difficult to find any

substance in the objection raised on the count of PW103 having given the

evidence on the basis of note-sheet. It is true that in the event of investigating

officer not remembering certain matters, it is permissible in law for him to

look in the case diary during the course of recording of his evidence.

Needless to add that in such event even the limited use of is permitted as

prescribed u/s.172 of the Code. However, it appears that in Mumbai Region,

a practice has been evolved over a period of time that Investigating Officers

prepare their notes on the basis of entries in the case diary to facilitate them to

give evidence without time being wasted in repeatedly going through the

diary to refresh their memory. However, in such a contingency the note-

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sheet prepared by I.O. is always taken on record for ascertaining whether the

same was utilized only for the limited purpose which is permissible in law.

The noting prepared in the instant case reveals that not only such a care was

taken but copy of the same was also furnished to the defence. Needless to

observe that giving of evidence by I.O. is not for testing his memory but

altogether for different purpose. Even perusal of the decision pointed reveals

that the same is in relation with non-production of station diary and not

regarding with the case diary. Both the said diaries being for different

purposes the said decision cannot be said to be useful to the defence.

Furthermore, except making grievance orally the learned counsel has also not

pin-pointed any material revealing that case diary was never brought to the

Court as canvassed.

210. Having regard to the same it is difficult to accept further

submission canvassed that the same also denotes of the investigating officer

having not carried out the investigation and hence he had adopted such a

recourse or that there was possibility that investigation was carried out by the

officers other than prescribed under POTA. Further, nothing is brought to our

notice as to when prejudice is caused to the defence. As aforesaid, it has

not been pointed to us from the record that the investigation officer was called

upon to produce the case diary by the defence or by the Court and he failed

to do so. Hence, there is no merit in the ground under consideration.

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SANCTION U/S.50 OF PREVENTION OF TERRORISM ACT, 2002

211. Mr.Kunjuraman, learned counsel for A2 made a grievance that the

order of sanction for taking cognizance of offence allegedly committed under

Prevention of Terrorism Act, 2002 (hereinafter referred to as `POTA') by the

accused persons (Exhibit-P-573) dated 4.2.2003 was not placed on record

practically at the end of the trial. It was urged that the said order of sanction

was placed on record on 12.10.2007 during recording of evidence of

PW-102/103. He further urged that the said order of sanction or copy thereof

was not placed before the Court along with the charge sheet nor a copy of the

same was furnished to the accused while furnishing the copies of papers of

investigation. The learned counsel therefore doubted the existence of the said

order of sanction or claim staked by PW-102/103 about the same by pointing

out that the final report of the investigation i.e. charge sheet for four crimes

investigated by PW-103 was submitted by him on 5.2.2004 and the sanction

order bearing dated 4.2.2003.

212. In the same context he also invited the attention to the evidence of

Deputy Secretary from Mantralaya Mr.Hirlekar, PW-102 and particularly

himself having received the proposal from Chief Investigating Officer

PW-103 for granting sanction on 23.1.2004. The learned counsel urged that

the order of sanction bearing a date preceding to receipt of the proposal

supports the defence submission of there being no fair trial and/or the order

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of sanction having not come into existence as claimed by PW-103. The

learned counsel also urged that PW-2 only claimed to have signed the

sanction. He cannot be equated with the sanctioning authority. It was urged

that in view of the same, the so called explanation tried to be given through

the evidence of PW-102 that the date was wrongly printed as 4.2.2003 on the

said sanction order which was granted on 4.2.2004 cannot be accepted. It was

urged that the mistake, if any, as claimed by the prosecution having in reality

occurred or otherwise could have been explained only by the authority

granting sanction. It was urged that the prosecution having not examined the

sanctioning authority or the person competent to accord sanction on behalf of

the authority as per the provisions of Section 50 of POTA, the defect apparent

on the face of order of sanction thus has remained to be properly explained.

The so called explanation of PW-102 will not deserve any credence. It was

urged that the same will lead to a situation of there being no proper sanction

accorded for taking cognizance of the offences under POTA alleged against

the accused. It was urged that the defect being incurable, would vitiate the

entire prosecution and/or trial.

213. The learned APP has rightly repelled the submission canvassed of

order of sanction having come on record only on 12.10.2007 during evidence

of Chief Investigating Officer PW-103. She pointed out the order sheet dated

5.2.2005 regarding the order passed by Special Judge upon charge sheet

submitted by the Chief Investigating Officer on the said date. Opening lines

of the said order are to the effect "Perused the sanction order issued by Home

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Department (Special), Mantralaya, Mumbai dated 4.2.2004 to prosecute the

accused in this case along with charge sheet filed today by the I.I.

Mr.Valishetty, ACP, D-1, DCB, CID, Mumbai alleging offences punishable

under POTA, 2002 for various terrorist acts ..........". Without detailing further

part of the said order it can be said that by the said order the POTA Special

Court has taken cognizance of the offences under POTA and the offences

under other enactments for which the said charge sheet was submitted against

the accused persons named in the said charge sheet and ordered registration of

POTA Special Case No.1 of 2004 and given directions upon all the relevant

aspects connected with taking cognizance of the said offences. Needless to

add that as pointed out earlier, the opening part of the said order itself reveals

that the order of sanction was before the Special Court along with the papers

of investigation on the said day i.e. years prior as canvassed by the learned

counsel of the same being placed before the Court only in the year 2007

during the course of evidence of PW-102/103. Having regard to the same, the

said submission will not at all deserve any consideration.

214. Now reverting to the next submission canvassed, the learned APP

has rightly pointed out that as per the provisions of Section 50 of POTA Act,

previous sanction of the Central Government or as the case may be of the

State Government is a prerequisite condition for POTA Court for taking

cognizance of the offences under POTA Act. The learned APP thereafter

drew our attention to the relevant part of the order of sanction, which runs as

under :

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"And whereas , in accordance with the provisions of Section 50 of the Prevention of Terrorism Act, 2002 , before a Court

takes the cognizance of the said offence , it is necessary for the State Government to accord sanction to the prosecution against the accused persons.

Now, therefore, in exercise of powers conferred by Section 50, the Government of Maharashtra hereby accords sanction to the prosecution against the accused persons for the said offence

committed by the accused persons for taking cognizance of the offence by the Court of the competent jurisdiction."

Thus, it is rightly urged that the order of sanction is in consonance

with the provisions of Section 50 of the POTA Act. By taking us through the

entire order, she rightly urged that the material therein clearly reveals that by

the said order the sanction was granted as per the provisions of Section 50 of

the POTA Act for taking cognizance of the offences described in detail in

further part of the body of sanction order i.e. the offences allegedly committed

by six accused persons and one deceased accused and eight absconding

accused named in the said charge sheet.

215. A perusal of the relevant part of the evidence of PW-102 reveals

the steps taken by him after receipt of the proposal from the Chief

Investigating Officer PW-103. The material part of the same reveals that after

discussing with the Chief Investigating Officer and verification of the papers,

PW-102 who was then working as Deputy Secretary, Home Department,

Government of Maharashtra and who was competent and authorized to sign

the order of State Government under the Maharashtra Government's Rules of

business, had found that there was prima facie evidence against the accused

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persons for according sanction for prosecution under the provisions of Section

50 of the POTA Act. None of the answers elicited during the cross

examination can be said to be affecting the core of the testimony of PW-102-

that he only processed the file and sanction was accorded by the Chief

Minister. Further, he merely signed the order of sanction due to the same

being permissible under the Rules of business of Government of Maharashtra.

His further evidence also reveals that thereafter he had sent the proposal to

Law and Judiciary Department and thereafter the same was forwarded to the

office of the Chief Minister. The Chief Minister had accorded sanction for

prosecution and they have received the case papers in respect of the said

sanction on 3.2.2004. The most material part of his evidence reveals that on

4.2.2004 he had signed the sanction order. He vouched that Exhibit-P-573

shown to him is the same order. He deposed that the date on the said order

being wrongly printed as 4.2.2003 i.e. instead of the correct date 4.2.2004.

216. Now, a perusal of the cross examination of the said witness do not

reveal any significant circumstance being elicited during the cross

examination excepting that his statement was not recorded by the Police or

file concerning the papers was not demanded by the Investigating Officer. He

also admitted that the fact of receipt of the proposal from Mr.Vallishetty was

not mentioned in the order of sanction. He also admitted of not remembering

whether he had made any noting on the file as to which documents he had

received with the proposal. He also deposed of not remembering as to who

had issued a letter to the Chief Investigating Officer for a meeting with him

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and not remembering whether he had made any noting in the file about his

discussion with Mr.Vallishetty. However, he deposed of having made notings

four to five days prior to 3.2.2004 upon the file regarding according sanction.

He denied the suggestion given to him that he was unable to produce the same

because no such file was in existence or that there was no proposal from the

Investigating Officer and there was no discussion with the Investigating

Officer Mr.Wallishetty. He also denied of having simply signed the sanction

order without application of mind. He also expressed inability to produce the

said file in the Court.

217. Thus, considering the evidence of PW-102 as a whole it is difficult

to accept the defence criticism that by adducing his evidence the prosecution

could not have explained the defect regarding the date occurring on

Exhibit-573. Such a conclusion is obvious as none of the answers obtained

during the cross examination are in any manner affecting the claim staked by

him that the sanction was accorded by the Chief Minister after he processed

the matter after receiving the proposal from the Chief Investigating Officer.

The evidence of PW-102 in crystal terms establishes that the sanction was

accorded by the Chief Minister and he had merely signed the same as

permitted by Government Rules of business. Having regard to the same, the

purported defect occurring in Exhibit-573 being not in relation to the matters

contained in the sanction order but the same is related only with the date of

issuing the same, we fail to understand the necessity of examining the person

according the sanction for State of Maharashtra. It is not the case of the

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defence that the Chief Minister was not competent to grant sanction

contemplated under section 50 of POTA Act on behalf of State of

Maharashtra. Similarly, the inability to remember the minor matter as to who

had issued the letter to the Investigating Officer or not remembering whether

PW-102 had made a noting on the file about discussion with Mr.Valishetty

can be said to be affecting the core of his testimony. Similarly considering the

answers in the cross examination that all the noting along with the papers

were available with PW-102, he had perused the papers in the file prior to

adducing the evidence, also repels the defence suggestion that PW-102 was

unable to produce said file because same was not existing. The defence

having not pursued that aspect regarding non production of the said file during

the cross examination, the grievance about the same now made by the learned

defence counsel will not deserve any credence.

218. Accordingly, we are unable to see any substance in the

submission canvassed that the order of sanction was not in existence as

claimed or about his contention about existence of sanction as claimed by

PW-102. In view of the same, we are unable to accept the criticism that there

was any ex-facie defect regarding the matter for which the sanction was

accorded or that the same results in there being no proper sanction or that the

same has a result of vitiating the prosecution or taking cognizance of the

offences under POTA Act for which the accused persons were tried by the

Trial Court.

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SANCTIONS FOR PROSECUTION FOR OFFENCES UNDER Explosive Substances Act, 1908 and The Explosive Act, 1884.

219. The learned APP assailed the reasoning given and conclusion

arrived in paragraph no.287 of the Judgment under consideration by the trial

Court that sanction Exh.P-565 (colly.) accorded by PW 100 Dr. Pradeep Vyas

working as a District Magistrate for Mumbai City District upon the proposal

of Investigating Officer for according sanction for prosecution of the accused

for offences under The Explosive Substances Act, 1908, being not valid and

legal. The learned APP urged that the fact of such a sanction/consent being

accorded by PW 100 has been duly established by his evidence. She urged

that observation made by the trial Court that the said sanction order is silent

regarding penal provisions of The Explosive Substances Act, 1908, for which

the said sanction is accorded and thus the offences for which the prosecution

is to be launched having been not mentioned in the said order, the same

reveals non-application of mind on part of sanctioning authority. That is

contrary to the record. In the same context, the page nos.2421 and 2424, and

particularly matter stated in the column no.3 of the table given on the said

page numbers, do reveal the Sections of offences under The Explosive

Substances Act, 1908, mentioned therein i.e. the offences for which the crime

was registered against the concerned accused and for which the sanction was

sought. In view of the same, the same submission canvassed on part of

learned APP cannot be said to be devoid of any merit.

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220. In the same context, the learned APP, by making reference to the

provisions of Section 7 of The Explosive Substances Act, 1908, and so also to

paragraph no.28 of the decision of the Apex Court in the case of State of T.N.

Versus Sivarasan Alias Raghu Alias Sivarasa, reported in 1997 Supreme

Court Cases (Cri) 362, to the effect,

"28. With respect to the finding regarding sanction we are of the opinion that the learned Sessions Judge was not right in treating it as not legal and valid. Section 7 does not require a sanction but only consent for

prosecuting a person for an offence under the Explosive Substances Act. The object of using the word "consent" instead of "sanction" in Section 7 is to have a purely

subjective appreciation of the matter before giving the necessary consent. To prove the consent the prosecution had examined PW 52 Balachandran who was then acting as

the PA of the District Collector. He has deposed about the requisition sent by the investigating officer and the reports and other documents sent along with it and consideration of the same by the District Collector before giving his consent. In his cross-examination he stated that he had not

noticed in the relevant file statements of witnesses. Relying upon this answer given by the witness the learned

Sessions Judge held that in absence of such statements the District Collector cannot be said to have applied his mind properly to the facts of the case before granting sanction. From the evidence of the witnesses and the copy of the proceedings of the Collector it appears that the Inspector of

Police had sent his report regarding the evidence collected by him together with a copy of the FIR, the reports of the Forensic Department and other connected record. Thus, the Mahazars under which the "explosive substances"

recovered and seized by the police from different accused

were placed before the Collector and on consideration of all that material the Collector had given his consent. We do not think that for obtaining consent of the Collector for prosecuting the accused for the offence punishable under the Explosive Substances Act it was necessary for the investigating officer to submit the statements of witnesses also, who had deposed about the movements of the accused and their activity of manufacturing bombs and grenades. We, therefore, hold that the consent given by the Collector was quite legal and valid."

(Emphasis supplied)

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has rightly urged that as per the provisions of Section 7, only the 'consent' for

prosecution being necessary and not the 'sanction'; and both the said things

being different and the evidence of PW 100 having established that he had

formed subjective satisfaction for granting consent for prosecution of

accused persons mentioned in first column of the table given in the sanction

order, for the offences mentioned in the third column of the same table, the

trial Court manifestly erred in coming to the conclusion of Exh.P-565 (colly.)

being not valid and legal.

221. Thus considering evidence of PW 100 and particularly matter

stated by him in paragraph no.3 of his deposition and so also the limited

aspect upon which he was cross-examined on behalf of the defence, it is

difficult to accept that his claim of having accorded consent/sanction has been

shattered in any manner. The learned defence Counsel tried to urge that they

were deprived to see the original file pertaining to the sanction for cross-

examining the said witness and so also PW 101 upon the similar point

regarding the other sanctions examined by the prosecution. It was urged as

such due opportunity being denied to them, the evidence of both the said

witnesses and so also the sanctions purported to have granted by them would

be without any credence and as such would be liable to be discarded. The

deposition of the said witnesses and particularly that of PW 101 clearly

reveals that such a grievance made by learned Counsel for the accused was

rejected by the trial Court on the count of their failure to show the provisions

entitling them to see such original file pertaining to sanction. The learned

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defence Counsel even failed to point out such a provision to us, we do not

find any fault with the said rejection made by the trial Court. The learned

defence Counsel has also tried to canvass that such a file pertaining to the

sanction was shown to the defence Counsel in a case pertaining to the attack

made on the Parliament. Even perusal of the relevant paragraphs from the

same reveals such a concession then being made by the prosecution, we find

it difficult to accept the proposition canvassed by pointing out the said

decision and particularly the learned SPP having objected showing of such a

file on the count of same containing other confidential matters.

222. Mr.Pasbola, learned counsel for the accused by drawing

attention to the order of sanction Exhibit-P-569 colly urged that as a

matter of fact, the table given in the said order does not reveal

mentioning of the offences under the Explosive Substances Act 1908

in the column no.3 of the said table and as such, the same cannot be

construed as a sanction accorded for prosecution of offences under the

said Act. He further urged that since there is no section 9 in

Explosives Substances Act, mentioning of the said section in the body

of order also reveals non application of mind and as such, the

prosecution conducted for commission of said offences is without

according of valid consent for prosecution of such offences.

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223. After considering the evidence of PW no.101 and the matters

in the said section, we are unable to accept the said criticism. Exhibit-

P.569 colly being the consent accorded for prosecution of the offences

under Explosives Substances Act, the same will be required to be read

as a whole and no conclusion as tried to be canvassed on the basis of

such offences being not mentioned in column no.3 of table can be

drawn. As a matter of fact, considering the said order as a whole and

particularly the matters mentioned in paragraph no.3 of the same, it is

clear that by the same PW 101 accorded consent for prosecution of

offences under section 3, 4 of Explosives Substances Act. Though it is

true that in the said paragraph, there is mention of section 9 of

Explosives Substances Act but in reality the said Act being confined to

only seven sections, mentioning of such section in the said paragraph

clearly appears to be superfluous due to typographical/clerical mistake

gone unnoticed by the sanctioning authority. Apart from the same,

considering the said orders in entirety, the same makes abundantly

clear of sanctioning authority being satisfied and accorded the consent

for prosecution of offences committed by the accused persons by the

acts mentioned in column no.5 of table given in the said order. The

matters stated in the said column no.5 r/w paragraph no.3 of order

clearly denotes sanctioning authority being satisfied with involvement

of concerned accused in commission of offences mentioned in

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paragraph no.4 of the said order. Hence, merely because sections of the

relevant offences are not mentioned in column no.3 of the table would

be no ground to discard the said sanction.

224. In the premises aforesaid, the submission of learned SPP of the

trial Court having erroneously discarded sanction Exh.P-565 (colly.) will

deserve credence and as such the said finding arrived by the trial Court will

be required to be set aside.

Trial being conducted and completed by Judges

appointed after POTA was repealed

225. Mr. Pasbola and Mr. Wahab Khan, learned counsel respectively

for A3 and A1 also urged that the present trial was conducted and completed

by the Judges who were appointed after POTA after the Repeal Act No.26

of 2004. Section 2 of the said Act provides for the matters saved after

coming into force of the Repeal Act. It was urged that out of five sub-

sections of said Section 2 , sub-section (3), (4) and (5) relate to the matters

pertaining to the review of POTA cases and do not relate to the matters

pertaining to the trial. It was urged that savings for such a matter are found in

sub-section (2) of Section 2 of Repealing Act. It was urged that the said

matters do not save and/or permit appointing a Special Judge for conducting

trial for pending/unfinished POTA offences of which the cognizance was

taken by the POTA Court.

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226. In the present case, the cognizance of offences under POTA was

taken by the POTA Court on 5th of February, 2004; and the charge was

framed on 29th June, 2004 admittedly before coming into the force of the

Repeal Act 26 of 2004 - which came into force w.e.f. 21st December, 2004.

The trial was then continued by the Judges who were appointed lateron after

the repeal i.e. the learned Special Judge Smt. Swapna Joshi appointed since

5th July, 2006 and thereafter by learned Special Judge Shri M.R. Puranik who

delivered the judgment under consideration in confirmation proceedings;

appointed since 27th December, 2006. It was urged that the subsequent

appointments were not contemplated and/or provided under the provisions of

Act No.26 of 2004 nor provision for making such appointment under POTA

being saved under saving clause, the appointments made would be without

authority of law. Hence, the continuation of the trial after coming into force

of the Repeal Act was ultra vires - and nullity. It was urged that count alone,

the judgment under consideration is liable to be quashed and set aside.

227. The aforesaid submissions were countered by learned APP. She

contends that appointments of the successor Judge was covered under the

savings under Section 2 (2) of the Repeal Act. The learned APP by inviting

our attention to the relevant Notifications dated 5th July, 2006 and 27th

December, 2006, respectively, appointing learned Special Judges Smt.

Swapna Joshi and Shri M.R. Puranik, contended that by the said

Notifications no fresh appointments of Special Judge was effected. But, only

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the existing post of Special Court was filled up by the concenred Judges to

replace the outgoing Judges. It was urged that control over subordinate

Courts being vested with the High Court and such a replacement in the nature

of transfer of Judge from one Criminal Court to another Criminal Court

being permissible under the said power regarding posting and promotion etc.

vested by virtue of Article 235 of the Constitution , no fault can be found with

the said Notifications issued by the Government with the concurrence of the

Chief Justice and the Judges of the High Court. It was urged that because of

repeal of POTA, it can neither be said that there was no power with the

Government/High Court to appoint a Judge upon the Special Court

continued due to the saving clause nor it can be said that such appointee will

not have power to continue and complete the said trial.

228. For appreciating the aforesaid submissions, it will be necessary to

take into consideration the provisions contained in Section 2 (2) of Repealing

Act which is as under:

"2. Repeal of Act 15 of 2002 and saving----

(1) ................

(2) The repeal of the principal Act shall not affect------

(a) the previous operation of, or anything duly done or suffered under the principal Act, or

(b) any right, privilege or obligation or liability acquired, accrued or incurred under the principal Act, or

(c) any penalty, forfeiture or punishment incurred in

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respect of any offence under the principal Act, or

(d) any investigation, legal proceeding or remedy in

respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,

and, any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the principal Act had not been repealed:

Provided that notwithstanding anything contained in this sub-section or in any other law for the time being in force, no Court shall take cognizance of an offence under the principal Act after the expiry of the period of one year from the commencement

of this Act."

229.

Now reference to the Notification dated 19th July, 2002, to which

our attention was invited by learned APP, it reveals that, the same was

issued in exercise of powers conferred under Section 23 (1) (4) of POTA, by

the Government of Maharashtra in consultation with the Chief Justice of

High Court of Judicature at Bombay. That notification specified (a) City

Civil and Sessions Court, Greater Bombay as a Special Court for the area of

Greater Bombay for the purposes of POTA and (b) appointed Shri A.P.

Bhangale, Judge, City Civil Court and Additional Sessions Judge, Greater

Bombay as a Judge to preside over the said Special Court. Thus, the said

Notification reveals establishment of Special Court for the purposes of POTA

and the Judge from City Civil Court and Sessions Court, Greater Bombay

was appointed to preside over the same.

230. Now considering provisions of 2 (2) (a) of the Repeal Act, it is

abundantly clear that creation of Special Court by the said Notification for the

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area of Greater Bombay would be saved by virtue of the said provision in

spite of repeal of POTA. In the instant case, said Special Court having taken

cognizance of the offences under POTA and the other offences committed on

5th February, 2004 upon the charge sheet submitted by PW103 Chief I.O. i.e.

much prior to the repeal of POTA and furthermore having ordered

registration of POTA Special Case No. 1 of 2004 and furthermore trial in the

said case having commenced thereafter i.e. when the said case was opened

and/or charges were framed in the said case i.e. on 29th June, 2004 , the said

legal proceedings would be again saved by virtue of the provisions of

Section 2 (2) (d) of Repeal Act.

231. Now considering the provisions of Repeal Act and particularly

provisions made therein for the matters which were saved, the same nowhere

prescribes that such a pending POTA trial is required to be completed by the

Presiding Officer presiding over the Special Court in which such a case was

pending on the date of repeal of POTA. Even accepting that the provisions

of the appointment of a Special Judge conferred by virtue of the provisions of

Section 23 (4) of POTA would not be available after 21st December, 2004

due to repeal of POTA, still the High Court would be fully competent in

posting another Presiding Officer of the equivalent qualification as

prescribed under POTA for completion of such trial and making of such a

posting can never be said to be improper, illegal or de hors the power to make

such a posting.

232. Now in the context of the submission canvassed by learned

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defence counsel that further Notification pointed out by learned APP

regarding the appointments of Smt. Swapna Joshi and Shri M.R. Puranik

makes reference to the provisions of Section 23 (4) of POTA or that the said

Notification contains the word "appointed" rather than "posting" and as such

the same cannot be termed as posting and will be required to be construed as

appointments made without there existing requisite power due to repeal of

POTA clearly appears to be devoid of any merit. In the same context

considering the provisions of appointment as contained under Section 23 of

POTA though the same stipulates the word "appointment" in reality the

same is not a fresh appointment but posting of already functioning Judge

with necessary qualification as envisaged under POTA to act as a Presiding

Officer for the Special Court. Similarly while construing the nature of any

Notification, the same is required to be considered in the entirety and no

conclusion can be drawn regarding its validaty or invalidity on the basis of

truncated portion thereof. Thus, considering the notification dated 5th July,

2006 and 27th December, 2006 appointing respective Judges as Presiding

Officer for Special POTA Court, it is abundantly clear that none of these

notifications were intending to make fresh appointment, but was for

replacing the outgoing presiding officer. Thus, in true sense, the effect and

nature of the said appointments were in the nature of making posting of

Judges over the said Court. Accordingly, we do not find any merit in

grievance made of trial being continued and completed by Judges not

empowered for same.

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Grievance regarding lack of sanction u/s 188 of Code.

233. Mr. Wahab Khan, learned counsel by making reference to the

provisions of Section 188 of the Code urged that as per the said provisions the

POTA Court could not have proceeded with the trial without there being

previous sanction of Central Government as prescribed under the said

section. The said provision runs as under:

"188. Offence committed outside India-

When an offence is committed outside India-

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship

or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be

inquired into or tried in India except with the previous sanction of the Central Government."

The learned counsel urged that admittedly it is the prosecution

case that the offence of conspiracy to commit the bomb blast in Mumbai was

hatched in Dubai, a place outside India. It was urged that prosecution has not

placed any sanction accorded by Central Government under the provisions of

Section 188 of the Code of Criminal Procedure. He urged that proceedings

with trial for a charge of conspiracy which was hatched in Dubai without

such a sanction has resulted in vitiating the entire trial. He further urged that

merely because the execution of the plan was chalked out in Mumbai would

not absolve from obtaining such a sanction. The learned counsel in support

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of this proposition also placed reliance upon the decision in the case of Ajay

Agrawal vs. Union of India reported in AIR 1993 SC 1637.

234. The learned APP repelled the said submissions by pointing out

the reasons given by the trial Court in paragraph nos.294 and 295 and by

submitting that no fault can be found with the said reasoning. The learned

APP by inviting attention to the charge framed at the trial further urged that it

is for the acts committed by the accused persons within India and not for any

of the act committed by them in Dubai and as such there was no necessity for

obtaining the sanction under Section 188 of Cr.P.C. She urged that there was

no defect much less any defect having effect of vitiating the trial.

235. After carefully considering the charge framed at the trial, we find

substance in the submission canvassed by learned APP. It is noticed that the

charge is primarily framed for the acts committed by the accused persons

within India and not for any of the act committed by them outside India.

Though it is true that there is reference in the charge firstly - regarding A1

who was member of Lashkar-E-Toiba and Muslim Revenge Force had been

to India from Dubai to cause bomb explosion in India with the help of A2 and

A3 etc., still careful perusal of the said charge does not reveal any of the

accused being charged or in fact tried for acts committed outside India.

Besides, considering the matters stated in the evidence of PW2 and so also

the confessions of A1, A2 and A3 , it is apparent that conspiracy hatched at

Dubai was for committing terrorists acts within India and the further

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conspiracy within the same was to cause terrorists acts at Mumbai and the

same was hatched at the house of A1 at Mumbai. This dispels the argument

under consideration. For, the Accused have not been tried for any of the

offences committed outside India or for the offences requiring the sanction of

Central Government as prescribed by Section 188 of the Code. We, therefore,

uphold the view of the Special Court on this issue.

Arrest of A1, A2 & A3 and Recovery of contraband articles from or at the behest of A1 & A2.

236.

The prosecution case regarding arrest of A1, A2 and A3 and

the events occurred thereafter i.e. memorandum/discovery and seizures

effected, being already narrated in detail earlier in paragraph nos.18 to

25, the same is not unnecessarily reproduced. The same, amongst

other, reveals that out of them A2 was firstly apprehended by the

police after receipt of secret information, nearby his house at about

15.30 hours on 31st August 2003 and thereafter he was brought to the

office of DCB CID Unit XI at Andheri and after interrogation, after

his involvement was confirmed in the crime in question, he was

arrested on 31st August 2003 at 2020 hours by PSI Todarmal (PW 51)

and after occurrence of the events as stated therein, A2 had led panchas

and police to the house of A1 and A3 at Salim Chawl, Room No.D/7,

Chimatpada, Marol, Andheri (East), Mumbai and at the said place,

they were arrested along with their daughter Farhin.

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237. In order to prove all the said events, and particularly the

arrest of the said 3 accused being effected on such date, time and place

and/or seizures being effected at the behest of A2 and A1, the

prosecution has relied upon ocular evidence of PSI Vankoti (PW 97),

PSI Talekar (PW 98), PSI Todarmal (PW 51), panch Mukund (PW 50),

panch Sunil Bhatia (PW 53), PSI Vijay Kandalgaonkar (PW 99) and

documentary evidence in the shape of personal search, panchanama

(Ex.P.385), panchanama (Ex.P.393) and Ex.P.393A), panchanamas

(Ex.P.394) & (Ex.P.394A), panchanamas (Ex.P.395 and Ex.P.395A)

The trial Court has dealt with the said evidence and so also the defence

submissions regarding the same and so also defence contention of said

accused being not arrested on the dates claimed by the prosecution and

being arrested much prior to the same and the evidence adduced by the

defence either for supporting the said contention and/or for repelling

the prosecution contention, in paragraph nos.82 to 103 of the Judgment

under consideration. For the reasons recorded therein, the trial Court

did not find any substance in the said submission canvassed; and

instead held that the prosecution established the factum of arrest of the

accused and also the seizure of contraband articles being effected at

the behest of the said accused as claimed by the prosecution. Identical

submissions were advanced before us.

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238. The reference to the evidence of PSI Vankoti (PW 97)

reveals that while he was attached with DCB CID Unit No.IX in the

year 2003, A2 was apprehended by the officers of unit No. XI at Juned

Nagar, Juhu Galli at about 4.00 p.m. on 31st August 2003 and

thereafter A2 was taken in the office of unit No. XI at Kandivali. It

reveals that preliminary inquiry made with A2 revealed that he was

involved in the BEST bus bomb blast at Ghatkopar (DCB CID C.R.

No. 75 of 2003) and hence on the same day he was arrested in

connection with said crime at about 20.20 hrs. by preparing panchnama

Exh. P-385. The evidence of PSI Shri Pramod Todarmal (PW-51) and

panch witness Mukund Ingrulkar (PW-50) reveals that during the

personal search of A2, in all 12 articles were found on his person

amongst other i.e. visiting card of Noor Electricals (Art. 12H) owned

by Shri S. M. Hanif (A-1) and A. B. Shaikh significantly with mobile

numbers of Nasir i. e. 9892077831 & 9892451164 and land-line

number 28527761 of A1 Hanif mentioned on the overleaf of said

cards; one chit i. e. Art.12/G with the e-mail address of co-accused

Jahid Patne (PW 2) recorded on it. It further reveals that PW-50

Mukund Ingrulkar had identified A2 as being the accused in whose

personal search said 12 articles i. e. Art. 12/A to 12/L were found and

seized by the police under panchanama Exh. P-385. The said

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panchanama also contains endorsement of A2 at the bottom of the

panchanama of having received the copy of the same.

239. The evidence of panch PW-53 Sunil Bhatia reveals that in

his presence A2 had expressed willingness to police officers of

Kandivali Unit to point out the place where he had concealed

remaining material of the bombs and same (Exh.P-393) was recorded

by PSI Vankoti in writing at about 21.05 hrs on 31st August 2003. The

evidence of PW 53 further reveals that A2 had, thereafter, led police

and panchas by Gypsy vehicle towards his house on the first floor of a

chawl situated at a distance of 50 meters in Juned Nagar, Juhu Galli,

Andheri (West), Mumbai and door of the same was opened by mother

of A2 Smt. "Kamrunissa". It further reveals that thereafter A2 had

taken out one tin box kept below the cot of his bed-room and after

opening said tin box was found containing 30 gelatin sticks (Art-13), 3

alarm clocks (Art. 14 Colly.) and 8 detonators and sample of each of

the said article was taken and the articles were separately packed in

plastic paper and labels were affixed upon them and same were seized

under panchanama Exh. P-393/A under the signatures of PSI Vankoti,

panchas and A2. The said panchanama/seizure memo shows that it

was concluded at 22.40 hrs. on 31st August 2003. It also reveals that

PW 53 had duly identified the said articles shown to him during course

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of recording of his evidence.

240. The evidence of PW 53 and PW 98 PSI Suryakant Talekar

reveal that in presence of PW 53, A2 disclosed the police officers

willingness to point out the place at which the bombs were prepared

and memorandum statement Exh.P-394 to such effect was prepared by

PSI Talekar bearing his signature, signature of both the panch

witnesses and signature of A2. Exh.394 reveals that it was concluded at

23.50 hrs. on 31st August 2003.

241. Both the above witnesses have deposed that the Police had

called Gypsy vehicle and A2 had thereafter led panchas and police

towards Andheri-Kurla Road, Marol Naka and thereafter A2 had asked

to take the police vehicle towards Chimat Pada and as per direction of

A2, vehicle was halted near Ashiyana Bungalow at which place A2,

panchas and police alighted the vehicle and started proceeding towards

Salim Chawl situate at Chimat Pada near Maheshwari Hotel. A2 had

thereafter led panchas and police towards room No.D-7 at Salim Chawl

and the door of the room was opened by A1 Hanif. They have further

deposed that A3 Fehmida and her two daughters Farheen (15) and

Sakira (5) were also found present in the room. It reveals that A1 had

told that Fehmida was his wife. They have also deposed that PW-98

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PSI Talekar had thereafter taken search of the house of A1 and A3 and

during search of cupboard, nine documents consisting passport of A1

and his family members, identity and visiting cards with some bearing

name and numbers recorded overleaf were found. It reveals that one of

the visiting cards was bearing the name of Nasir and his mobile

number as 9892451164. One more visiting card was pertaining to Noor

Electricals owned by A1 and the mobile number of Nasir was found

mentioned as 9892077831 on the overleaf of the same card.

242. Evidence of panch witnesses PW-53 Sunil Bhatia and PSI

Suryakant Talekar (PW-98) reveal that A2 had pointed out the loft in

the house of A1 having one water tank and one gunny bag besides said

tank. It reveals that upon opening said bag, same was found containing

125 aluminum clips, clipper machine of Super Eagle Co., One bundle

of white polyester filament yarn role, one tightening machine, one

soldering machine with plug and wire attached to it, role of soldering

wire, 9 alarm clocks and 16 fire crackers of red colour. It reveals that

said articles were kept in a small cardboard box and labels were affixed

thereon. It further reveals that another carton box found on same loft

on opening was found containing 12 detonators packed therein. It

reveals that one of the detonators was taken out as sample and 11

detonators were wrapped in cotton and those were kept in a small

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carton box. It further reveals that all said articles were seized under

panchanama Exh. P-394/A under signatures of PSI Talekar, panchas

and the signatures of A1 & A2 and panchanama was concluded at 2.35

hrs. on 1st September 2003. The evidence of PW-53 reveals that he had

identified all the above articles which came to be seized from the house

of A1. All the above muddemal articles are duly packed, labeled and

sealed.

243.

PSI Talekar (PW-98), PSI Vijay Kandalgaonkar (PW-99)

and panch witness Sunil Bhatia (PW-53) deposed that A1 had shown

willingness to point out the place where he had concealed some gelatin

sticks and thereafter led the panchas and police towards room No. 14,

Salim Chawl, which was locked. It reveals that A1 had opened the

room and taken out a yellow colour gunny bag kept below the cot and

same was found containing 58 gelatin sticks on which description

"Noble-gel 80 NECL-Hingani Wardha" were found printed. It reveals

that out of the same, one stick was taken as sample and others were

seized under panchanama Exh. P-395/A under the signature of PSI

Kandalgaonkar, panchas and of A1. Exh.P-395/A reveals that the

same was concluded at 7.50 hrs. on 1st September 2003.

244. Advocate Shri Kunjuraman for A2 urged that arrest

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panchanama of A2 i.e. Exh.P-385 is totally fabricated and concocted

document. He urged that as per the evidence of PSI Jitendra Vankoti

(PW-97) A2 was brought from Juned Nagar, Juhu Galli to the office of

crime branch at 4.00 p.m. on 31st August 2003 and was thereafter

interrogated and was arrested at 8.20 p.m. on said day. He urged that

PW 97 stated in cross-examination that no panchanama of any kind

was prepared when A2 was picked up from Juned Nagar. Adv.

Kunjuraman has invited attention to the evidence given by Chief IO

Shri Walishetty (PW-103) that A2 was arrested at Andheri whereas it

is the evidence of police officers PSI Vankoti (PW-97) and PSI Talekar

(PW-98) that the A2 was arrested inside the Kandivali Crime Branch

Unit. It was thus urged that there is confusion regarding the arrest of

A2.

245. The learned Counsel thereafter invited attention to news item

published in Times of India on 2nd September 2003 (Exh. D-76) to the

effect that A2 was arrested on Saturday morning and he was

interrogated in the evening. He urged that India Today Magazine (Exh.

D-77) reported that on the afternoon of August 30, police officer Shri

Maria and his team had arrested A2 in Juhu. The learned Counsel

pointed that in Exh. D-77, date of arrest of A2 is mentioned as 30th

August while the arrest panchanama Exh. P-385 records the same as

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31st August 2003.

246. The learned APP repelled the said submissions by urging

that no reliance can be placed upon unauthenticated matters stated in

the newspaper items. She urged that hardly any steps were taken for

establishing authenticity of the matters stated in the news items and/or

the truthfulness of the same. She urged that as such there is no

discrepancy regarding the date of arrest arrest of A2. She also placed

reliance upon the decision in the case of Laxmi Raj Shetty Versus

state of Tamil Nadu, AIR 1988 SC 1274. and particularly matters

stated therein by the Apex Court in paragraph no. 25 to the effect :

"We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary

evidence, unless proved by evidence aliunde. A report in newspaper is only hearsay evidence. A news paper is not

one of the documents referred to in S. 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under section 81 of the Evidence Act to a newspaper report cannot be treated as

proof of the facts reported therein."

247. In the same context, perusal of the evidence of PW-97 PSI

Vankoti who had arrested A2 reveals that during the cross-

examination, he stated that A2 was brought from Juned Nagar, Juhu

Galli at 4.00 p.m. on 31st August 2003 and for the purpose of

interrogation, he was taken to the office of Unit-XI of Kandivali and

after interrogation A2 was arrested at 8.20 p.m. It is not in dispute that

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house of A2 was then situated at the Juned Nagar, C.D. Barfiwala

Road, Andheri (West), Mumbai-58. Thus it is abundantly clear that A2

was apprehended by the officers of Unit-XI nearby his house and for

the purpose of interrogation he was taken in the office of Unit- XI. In

view of the same, it is difficult to perceive that then it was necessary

for the said officers to draw any panchanama, much less arrest

panchanama of a person who was then not arrested by them. Needless

to add that aforesaid evidence has revealed that only after interrogation

having confirmed about his involvement in the offences of bomb

blasts, he was formally arrested at 8.20 p.m. by preparing requisite

arrest memo and thereafter his personal search was conducted and the

articles found in his possession were taken in possession under

panchanama Exh. P-385. Though it was suggested in the cross-

examination of PW-98 PSI Talekar that the then Commissioner of

Police and the then Home Minister held press conference on 1st

September 2003 and in that press conference it was reported to the

media that A2 was arrested on 30th August 2003 and A1 and A3 were

arrested on 31st August 2003 at early hours of morning, all the said

suggestions were duly denied by PSI Talekar. Needless to add that

suggestions denied being not a piece of evidence and no admission

elicited from any of the witnesses supporting the said suggestions

being brought to our notice, it is difficult to give any credence to such

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suggestions given. Even the case regarding the matters stated in the

news item also cannot be given any importance without authenticity of

the arrest being effected on such a date, being established, or at least

such a fact being reported to the newspaper by the persons concerned

with the said arrest or even regarding apprehending A2 prior to 4.00

p.m. on 31st August 2003 being established on the record.

248. So far as the arrest of A1 and A3 is concerned, it is

submitted by their Counsels Adv. Wahab Khan and Adv.Pasbola that

since it is the prosecution case that A1 and A3 were arrested on 1st

September 2003, there was no reason for the then Commissioner of

Police Shri R. S. Sharma and the then Dy. Chief Minister Shri Chagan

Bhujbal to give a press briefing to the media about the date of arrest of

Accused Nos. 1 and 3 on 31st August 2003. The said media reporting is

brought on record by the defence. Exh. D-76 is the news item

published in Times of India on 2nd September 2003 in the caption of

"Police confirmed active role of woman in blast". Now perusal of the

said news item reveals the same being silent regarding the date of

arrest of A1 and A3 as tried to be canvassed by learned defence

Counsel.

249. In the same context, considering the evidence in defence led

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by A1 i.e. examining himself as DW-4, the same reveals of A1 having

claimed that he had returned home at 7.00 p.m. on 30-9-2003. He

further claimed that when along with his family members, he was

about to take dinner, 20 to 25 policemen had entered his house at 8.00

p.m. and had expressed desire to take house search. He claims that

thereafter the police had taken passport, bank passbook and other

documents along with one album of photographs and nothing else was

seized. He further claimed that A1 and his family members were taken

to crime branch office at Andheri. He deposed that he was taken to

Bhabha Hospital on 1st September 2003 as his blood pressure had shot

up and after receiving discharge from the hospital he was produced

before the Special Court and he was remanded to police custody for 14

days. In the cross-examination A1 stated that he was not aware of

date of his arrest when he was produced before the POTA Court on 2nd

September 2003. He has denied the suggestion of the Special P.P. that

he was arrested by police on 1st September 2003. Thus considering the

evidence of A1 in proper perceptive, it is difficult to digest his stand

that he was not aware of date of his arrest when he was produced

before POTA Court. Needless to add that such evidence is apparently

given by him to support the afterthought stand taken at the trial of

having not been arrested on 1st September 2003 but was arrested prior

to the same.

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250. In the same context, the evidence of another defence witness

Shri R. S. Sharma (DW 5) reveals that he was serving as the

Commissioner of Police of Mumbai during the period from 31st

December 2002 till 14th November 2003. He deposed that he had

occasion to release the press note on 1-9-2003 and the press conference

was attended by him and Home Minister Shri Chagan Bhujbal and Jt.

C.P. (Crime). Press note was circulated in that conference and the

queries raised in the press conference were replied by him and Exh.

D-76 is a news paper report pertaining to the above press note.

Significantly enough, after going through the news item Exh. D-76 he

stated that he is unable to say whether the contents of the news item

depict the correct events. It has also come in the evidence of DW-5

Shri R. S. Sharma that press note dtd. 1st September 2003 Exh. D-107

is signed by IO Shri Walishetty. After going through Exh. D-107 it was

stated by DW-5 that he is unable to state the exact date on which A1

and A3 were arrested.

251. Furthermore, during the cross-examination, Shri R. S.

Sharma (DW-5) answered that he had confirmed from the documents

that one of the Accused person was arrested on 31st August 2003 and

rest of the Accused persons were arrested on the next day. Similarly,

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another defence witness DW-6, the then Home Minister Shri Chagan

Bhujbal, also stated that in the press conference it was revealed that

four Accused persons were arrested in bomb blast cases, out of them

one was arrested on earlier day evening and remaining three were

arrested on the same day early in the morning i. e. on 1st September

2003. Thus, we find that as rightly observed by the trial Court neither

news items Exh. D-76 and Exh. D-107 nor the evidence of R. S.

Sharma (DW-5) and Shri Chhagan Bhujbal (DW-6) support the

defence of A1 and A3 that they were arrested on 31st August 2003.

252. The perusal of first remand application Exh. D-81 (R. A. 35

of 2003) to which our attention was drawn by learned APP supports

her submission that, A2, A3 and her daughter Ms. Farheen were

produced before Special Court on 1st September 2003 and in the

remand application A2 was shown arrested at 20.20 hrs. on 31st August

2003 and A1 and his wife A3 Fehmida were shown arrested on 1 st

September 2003 at 03.00 hours. Similarly, the remand order passed

by the POTA Court, on the said day to which also our attention was

drawn also supports her submission that as per the said order A2 had

admitted before the Court that he was arrested yesterday morning i. e.

on 31st August 2003 and A3 Fehmida and her daughter Farheen have

submitted before the Court that they were arrested on the morning of

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1st September 2003. Needless to add that the said matters,

apart from supporting prosecution case of A2 being arrested on 31st

August 2003 and A1 and A3 were arrested on the next day i.e. on 1st

September 2003 also reveals that an afterthought stand was later on

taken by the said accused for creating camouflage of themselves being

not arrested on the dates as claimed by the prosecution and they were

arrested even prior to the said dates and illegally detained.

253.

In the premises aforesaid, it can be safely said that at trial,

prosecution had duly established of A2 being arrested on 31st August

2003 and A1 & A3 being arrested on 1st September 2003 and as such,

there being no confusion regarding the dates of the arrest of the said

accused. Needless to add that the defence has also failed to establish

the contention of the said accused being arrested much prior to the

dates than the dates as claimed by the prosecution.

254. In addition to the aforesaid, the said evidence also

establishes nexus and/or inter se connection on mobile phone/phone or

even otherwise then existing in between A1 and encountered accused

Nasir and Jahid Patne, Approver (PW 2). Similarly, the same and

particularly the articles seized either from person or the residence of

the said accused also establishes nexus of A2 with gelatin and the other

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articles such as alarm clock, detonator i.e. with the material of which

nature was used for preparing crude bomb for causing explosion at

M.I.D.C., Seepz on 2nd December, 2002 and BEST bus at Ghatkopar

on 28th July, 2003.

255. Now with regard to prosecution evidence regarding earlier

referred discovery and seizure allegedly made as a sequel to the

statement made by A2 on two different occasions i.e. firstly statement

made and recorded under memorandum panchanama Exh. P393

concluded by 21.05 hours and discovery and seizure panchanama Exh.

P393-A concluded by 20.40 hours both drawn by PW97 PSI Wankoti

and secondly statement made and recorded under memorandum

panchanama Exh. P394 concluded by 23.40 hours and discovery and

seizure panchanama Exh. P394-A concluded by 02.35 hours on

1.9.2003 drawn by PW 98 PSI Talekar; the learned defence counsel

urged that taking into account the said features and the relevant

evidence the same clearly appears to be artificial. It is was urged that

the evidence pertaining to first memorandum and discovery

panchanama reveals that A2 is then alleged to have made a statement

regarding the remaining material from the material used for preparing

the bomb and the place of concealment about the same and, thereafter,

allegedly having led the panchas and police to his house at Junad Gali

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Junad Nagar Zopadpatti and alleged to have taken out the tin bags

containing contraband material i.e. 30 geletine sticks, 3 alarm watches

and 8 detonators. It is was urged that the evidence pertaining to 2nd

memorandum and discovery panchanama reveals that A2 during the

interrogation thereafter is alleged to have made a statement regarding

showing of place at which he had prepared bomb along with his

companions which was planted in BEST bus on 2nd December, 2002

and 28th July, 2003 and, thereafter, allegedly having led the panchas

and police to the house of A1 at Chimatpada Marol Andheri and from

the said house the police has seized the material and so also the

contraband materials from the loft as detailed in panchanama Exh.

P394-A.

256. The learned defence counsel assailed the aforesaid evidence

by urging that it depicts an absurd position that the accused who was

willing to make the statement regarding the bombs prepared or the

material used for the same or the place at which the same were

prepared, had made the statement on two occasions. According to the

defence, the natural course is that the accused would disclose all

matters on the first occasion itself. It was urged that the accused

making such a statement on two occasions and again before two

different officers militates against the fact that A2, in reality, must

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have made such a statement. It was urged that artificialness of the said

evidence is further exposed by ill-logical claim of contraband material

being kept at two different places. It was contended that the same also

denotes that though same set of panch witnesses were used for all the

said four panchanamas, the second panchanama i.e Exh. P394 drawn

by other officer, i.e. PW 98, recites that officer had asked for bringing

panchas. It was urged that in order to cover the said lacunae the