Mahmood Rajasa Saiyed
Vs. State of Gujarat [2008] INSC 1928 (11 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of SLP (Crl.) No. 6506 of 2006 Mahmood Rajasa Saiyed ...Appellant Versus
State of Gujarat ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a Division Bench of the Gujarat High
Court dismissing the appeal filed under Section 34 of Prevention of Terrorism
Act, 2002 (in short `POTA').
3.
Factual
details have been indicated in Criminal Appeal (Arising out of S.L.P (Crl.)
No.4876 of 2006) disposed of today.
4.
Appellant
was arrested in connection with POTA Case No.12 of 2003 arising out of ICR No.6
of 2003 of the DCB Crime Police Station, Ahmadabad for offences punishable
under IPC, Arms Act and POTA. An application for bail was filed in terms of
Section 49(6) and (7) of POTA.
The bail application
was rejected primarily on the ground that the appellant was found in possession
of country made revolver and foreign made pistols and undisputedly same was
recovered from his possession. Ten live cartridges were also recovered from
another co-accused. The statement of the co-accused was recorded under Section
32 of POTA. The High Court held that it is a fit case for grant of bail.
Though, there was allegation of illegal custody no material was placed in that
regard. In view of the reasons recorded by the High Court and the trial Court
for rejecting the bail application, we are not inclined to interfere with the
appeal.
5.
The
Trial Court has observed as follows:
"It is true
that, the statement of Anas does not disclose this fact but, when the
notification u/s 4 of the POTA is in effect and when the accused are
charge-sheeted for the offence u/s 120-B, criminal conspiracy, the Court sees
no reason as to why at this juncture the discretion should be used in his
favour especially when the criminal conspiracy is alleged to be intended by the
accused to terrorize the people of a particular section as well as to shake the
integrity and unity of the nation in the aftermath of Godhra incident where
some of the accused have also taken the training from the neighbouring country
Pakistan in deadly weapons, arms and ammunitions and who also intended to make
use of that training by procuring weapons to execute the said conspiracy which
are allegedly supplied by the present applicant accused."
6.
The
High Court has also observed in this regard as follows:
"The appellant
was found in possession of country made revolver and foreign made pistol and
the same was recovered from his pocket. The panchnama in respect thereof was
prepared. The joint panchnama, which was prepared also mentions about the 10
live cartridges which were recovered from another accused Mohd.
Tarik. The statements
of the co-accused recorded under Section 32 of the POTA have been perused by us
and prima facie, the statements given by the co-accused indicate involvement of
the appellant in the commission of crime. The contention raised by the learned
Advocate for the appellant that the statement of the co-accused Anas Machiswala
does not disclose prima facie involvement of the appellant is without any
substance, as notification under Section 4 of the POTA was in effect when the
accused was charge-sheeted, and since the accused was charge-sheeted for the
offence punishable under Section 120B, which is for criminal conspiracy, we see
there was no reason to enlarge the appellant on regular bail. With regard to
the statement of co-accused, which was recorded under section 32 of the POTA,
save and except the statement recorded under section 32 of the POTA, further
corroboration was also forthcoming, Thus, the Court has to look into the entire
material which was available against the accused. The prima facie evidence was
available against the appellant and as he was found in possession of the
fire-arms, the learned Special Judge has rightly not used the discretion to
enlarge the appellant on bail and we also see no reason to interfere with the
order passed by the learned Judge in appeal preferred by the appellant under
Section 34 of the POTA. As regards the next submission of learned advocate for
the appellant that the accused has remained in judicial custody for nearly two
years, we have considered the provisions of sub-sections (6) and (7) of section
49 of the POTA and the rigorous imposed therein. The rigorous would definitely
go with the completion of the period of one year as contemplated under
sub-section (7) of section 49 of the POTA, but considering the provisions of
section 439 of the Code of Criminal Procedure along with evidence available
against the accused, in our view, the accused has not made out a case for this
enlargement on regular bail."
7.
However,
it is stated by learned counsel for the respondent-State that the trial is at
the advance stage. The trial Court is requested to complete the trial as early
as practicable.
8.
The
appeal is dismissed.
..............................J.
(Dr. ARIJIT PASAYAT)
..............................J
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