Ghulam Nabi War & ANR Vs. The
State of N.C.T. of Delhi  INSC 217 (11 April 2000)
M B Shah. & Doraiswamy Raju.
L. I. T.J Accused have filed this appeal
against the judgment and order dated 10/15th December, 1999 passed by the
Designated Judge-I, New Delhi in Sessions Case No.10/94 convicting accused
Nos.1 and 2 for the offence punishable under Section 5 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (for short TADA Act) and under
Section 5 of the Explosive Substances Act, 1908, and sentenced to undergo
rigorous imprisonment for eight years and a fine of Rs.20,000/- each and in
default of payment of fine to further undergo rigorous imprisonment for one
year under Section 5 of TADA Act and to suffer rigorous imprisonment for five
years under Section 5 of the Explosive Substances Act.
It is the prosecution case that on 12th
October, 1993, a secret information was received by the ACP Shri D.S. Naurawat
(PW-11), who was posted in the Operations Cell that some members of the Muslim
Mujahiddin, a terrorist outfit organisation of Jammu & Kashmir, were hiding
somehwere in South Delhi to carry out terrorist activities in Delhi. To carry
out and develop the information, a special team comprising of SI Kundan Singh,
SI Joginder Singh, SI Radhey Shyam and ASI Swaminathan under the supervision of
ACP Shri D.S. Naurawat, was constituted.
The police team came to know that 2-3
Kashmiris were staying in House No.I-105, Lajpat Nagar on the second floor and
their movements were found doubtful. After conveying that information to the
superior officers at about 5.00 p.m.
raiding party conducted raid at the said
house. In the said premises, accused Ghulam Nabi War (A-1) and Meer Arshad
Saleem (A-2) were found. It has been further pointed out that A-2 was the
tenant in possession of the said premises.
After carrying out a formal search of the
room, from a closed loft of the room, one rexine bag was found which was brought
down. The bag was found having a numbered lock and A-1 claimed that the said
bag belonged to him and gave secret No.365 for opening the lock. From the said
bag, a polythene bag of green colour containing 800 gms. of RDX and another
polythene bag containing detonators and a cash of Rs.25,000/-, one telescope of
Russian make and some clothes of the accused were also found. It is stated that
on further checking of the bag, three fax receipts, two cash memos and three
photostat copies written in Urdu were also recovered which according to the
prosecution contained formula for making a bomb. Thereafter, DCP Shri B.S.
Bhola was informed and he arrived at the spot and it is alleged that on further
interrogation the accused claimed to be the members of the Muslim Mujahiddin.
After verification of the facts, DCP B.S. Bhola gave his approval for
registration of the case under TADA Act and under the Explosive Substances Act.
After completing the investigation, the
accused were charged for the offences punishable under Section 120-B of I.P.C.,
Sections 3 and 4 of TADA Act read with Section 120-B of I.P.C., Section 4 of
the Explosive Substances Act, Section 5 of TADA Act and Section 5 of Explosive
Substances Act. After recording the necessary evidence, the learned Designated
Judge arrived at the conclusion that from the perusal of the prosecution
evidence it is apparent that none of the ingredients of Section 3 of TADA Act
has been alleged or established. The evidence led by the prosecution is mainly
regarding the recovery of explosive substances only.
The court further observed that there was no
further reference of commission of any terrorist act committed by the accused
persons by using the explosive substances to over-awe the Government lawfully
established by law to create terror among the public of different sections of
the society and, therefore, there was no evidence on record to bring home the
guilt to the accused persons under Section 3 of TADA Act read with Section
120-B of I.P.C. Similarly, the court held that prosecution evidence is totally
lacking to bring home the charge under Section 4 of TADA Act read with Section
120-B of I.P.C. The court pertinently observed that prosecution has, in fact,
failed to lead any evidence, good or bad or indifferent, to show that accused
persons were members of the Muslim Mujahiddin, a terrorist organisation.
However, considering the evidence on record with regard to recovery of explosive
substances, the court convicted the accused as stated above.
Learned senior counsel, Mr. Sushil Kumar
appearing on behalf of the accused submitted that the investigation in the
present case and the evidence produced on record is absolutely defective and is
contradictory. He pointed out that prosecution has failed to produce on record
any evidence of lock-up register to show as to where the accused were kept
after their arrest. He also pointed out contradictory statements made by the
witnesses. One stated that they were kept at Lodhi Road Police Station, the
other stated that they were kept in Lajpat Nagar Police Station and the third
stated that they were kept in their office premises at Lodhi Colony Police
Station. He submitted that it is the defence of the accused that they were
taken in custody prior to 12th October, 1993 and a false case is filed against
He next submitted that apart from the
contradictory version, the registration of FIR, preparation of four panchnamas
for the recovery of items from the same bag and also the production of sanction
letter granted under Section 20A of TADA Act create much doubt in the
prosecution version. Still, however, considering the fact that A-1 has
virtually undergone six-and- a-half years of sentence, he submitted that a
lenient view for the sentence may be taken without going in detail. For A-2, he
submitted that there is no evidence on record to connect him with the crime
except the fact that A-1 was guest of A-2 and A-2 was staying in the premises
in question as tenant. He submitted that the prosecution version, at the most,
establishes that as soon as the bag was found A-1 stated that the bag belonged
to him and he gave the number for opening the lock of the bag and if that is
the prosecution version there is no question of connecting A-2 with the crime.
He submitted that once the prosecution has failed to establish the offence
under Section 120-B I.P.C. there is no question of convicting A-2 for joint
possession of the explosive material.
For the recovery of the bag and the explosive
substances, the prosecution has examined number of witnesses. PW-4 Inspector
Kundan Singh was a member of raiding party. It is his say that on 12th October,
1993 he was posted as Sub Inspector in Operationa Cell, Special Branch of the
Police. A secret information was received that some Muslim Mujahiddins of J
& K group had been in Delhi for terrorist activities. After developing the
information, at about 5.00 p.m. under the supervision of ACP D.S. Naurawat the
premises in which those Kashmiris were staying was raided. During the search,
one rexine bag was found from a closed loft (taund) of the room. On enquiry,
accused No.1 Ghulam Nabi War informed that bag belongs to him. From the said
bag, RDX explosive powder weighing 800 gms.was found. There was another
polythene bag in the said bag containing small metal pieces which had
electricity wires fitted in it and accused No.1 informed that those were
detonators. Further, Rs.25,000/- of currency notes, one telescope and certain
fax messages were also found. Information was sent to DCP Mr. Bhola (PW-12) and
thereafter he came on the spot. After hearing the accused, he directed
registration of a case under the provisions of TADA Act as well as Explosive
The aforesaid evidence gets support from PW-5
SI Joginder Singh. He has stated that accused No.1 identified the bag recovered
during the search and stated that it belongs to him. It is his say that accused
No.2 opened the lock of the said bag. Similarly, PW-9 ASI Swami Nath Shukla
deposed to the same extent and he has stated that bag was opened by accused
No.1. PW-11 D.S. Naurawat, Addl. D.C.P.
has stated that bag was opened by accused
No.1 by the use of No.365. In cross, he has stated that no finger prints of the
accused were lifted from the said bag because accused No.1 had admitted the
possession of the said bag. He further stated that on information Shri Bhola,
DCP arrived at the spot and after questioning the accused and examining the
material he accorded permission for registration of a case under TADA Act and Explosive
Similarly, PW-12 Shri B.S. Bhola, DCP has
also supported the prosecution version. He also stated that he talked with both
the accused about the recovery of RDX and other articles and they disclosed
that they belong to Muslim Mujahiddin militant organisation and that the
recovered articles belonged to them. PW- 15 Inspector Radhey Shyam has also
stated the same facts with regard to the recovery of the said bag, RDX and that
accused No.1 on being questioned informed that bag belonged to him and he
disclosed a secret No.365 for unlocking it.
Considering the aforesaid evidence on record,
in our view, the learned Designated Judge was right in arriving at the
conclusion that the prosecution has proved recovery of RDX and other articles
from the house where accused No.2 was residing as a tenant.
It is also true that evidence on record led
by the prosecution establishes that as soon as the bag was found A-1 stated
before the concerned officers that the said bag to him. He further gave No.365
for opening the lock of the said bag and thereafter the said bag was opened as
stated by two witnesses by A-1 and by a third witness by A-2. Leaving that part
of contradictory evidence, from the aforesaid evidence which is led by the
prosecution itself, according to the prosecution version, A-1 was the owner of
the said bag; that he had given the number for opening the lock of the bag; and
that there is no other evidence on record led by the prosecution to connect A-2
with the crime.
We are saying so because the trial court has
specifically found that for the rest of the charges against A-2 there is no
iota of evidence on record. In any set of circumstances, once the prosecution
has failed to prove conspiracy, there is no question of convicting A-2 for
having been in joint possession of explosive substances. Learned senior counsel
for the prosecution has failed to point out any connecting evidence to
establish the alleged offences against A-2. In this view of the matter, the
impugned judgment and order convicting A-2 Meer Arshad Saleem S/o Ali Mohd. Mir
requires to be set-aside and is quashed and set- aside.
As regard A-1, as stated above, the
prosecution has established that the bag containing RDX etc. belonged to him
and, therefore, he has been rightly convicted under the provisions of Section 5
of TADA Act and Section 5 of the Explosive Substances Act. Before the trial
court, it was pointed out that A-1 is a Graduate in Engineering coming from a
good family background and in the jail also he was running Indira Gandhi
National Open University and National Open School Study Centre for the past
five years and that he completely dedicated towards this noble cause. By taking
into consideration the age, character, antecedents and his conduct during the
period of his remaining in jail as under trial, the learned judge has taken a
lenient view. In view of the aforesaid background of accused No.1 and the fact
that he has already undergone sentence of six-and-a-half years, we reduce the
sentence to the period already undergone. We further set aside the order
imposing a fine of Rs.20,000/- each for the offences punishable under Section 5
of TADA Act. If the fine has already been paid, the same be refunded.
In the result, the appeal is partly allowed.
A-2 Meer Arshad Saleem is acquitted. He is ordered to be released forthwith, if
not required in any other case. For A-1 Ghulam Nabi War, sentence is reduced to
the sentence already undergone and he is ordered to be released forthwith, if
not required in any other case.