1 cri.appeal-225-10.doc mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.225 OF 2010 The State of Maharashtra ) through DCB CID, Unit -VI, ) Chembur, Mumbai )..APPELLANT Versus 1.Gulam Akbar Abdul Sattar Khotal ) Age 38 years, Occ. Catering Business) R/o. Allah Rakha Kutir, Govandi ) Mohalla, Kalyan West, Dist.Thane. )..RESPONDENT Mrs. A.S. Pai, APP for the Appellant. Mr. Mubin Solkar and Ms. Tahera Qureshi for the Respondent. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON: 11TH FEBRUARY, 2011 PRONOUNCED ON: 24TH FEBRUARY, 2011 P.C. Heard Mrs. Pai, the learned A.P.P., for the Appellant-State of Maharashtra and Mr. Mubin Solkar, the learned Counsel for the respondent, original accused No.4 (hereinafter referred to as “the 2 cri.appeal-225-10.doc Applicant”). 2. This appeal filed under Section 34 of the POTA Act, 2002 is directed against the order dated 4th May, 2009 passed by the learned Special Judge under the POTA Act in bail application No.4 of 2002 filed in POTA Specaial Case No.2 of 2003. The bail application has been allowed on the following conditions:- “(a) The applicant-Gulam Akbar Abdul Sattar Khotal, be released on his executing P.R. Bond in the sum of Rs.1,00,000/- (Rupees one lac only) with one solvent surety in the like amount. (b) He shall report to the office of DCB CID., Unit -VI, on the first day of every month in between 6.00 p.m. to 8.00 p.m, till the trial begins.” 3. With the consent of the parties the appeal has been heard finally so as to consider whether the State Government has made out a case to cancel the bail granted on 4th May, 2009. 4. The applicant is accused No.4 in POTA Special Case No.2 of 2003 and he submitted Bail Application No.4 of 2008 for being released on bail on the grounds that (a) he was taken in custody for 3 cri.appeal-225-10.doc the first time on 20th April, 2003 and remained in custody uninterruptedly; (b) the trial in POTA Special Case No.2 of 2003 came to be stayed by the Supreme Court on 18th October, 2005 and the said stay order continued; (c) some of the accused have been released on bail; (d) there was no prima facie case made out against the applicant regarding his involvement in the bomb blasts which took place at three different places i.e. Hotel McDonald near Mumbai Central Railway Station, vegetable market at Vile Parle East and in the Karjat Bound Local train at Mulund Railway Station. 5. The State filed its reply and opposed the application. It was submitted that the applicant along with accused No.1, accused No.7, accused No.9, accused No.4 and accused No.2 had hatched conspiracy to wage war against the Government by committing terrorist acts by causing bomb blasts in Mumbai city. It relied upon the confessional statements of accused No.5-Mohd. Kamil and accused No.8-Dr. Wahid Abdul Jabbar Ansari in support of such a conspiracy. In addition, it also relied upon the recovery of 3 AK-56 rifles, 79 live cartridges for AK-56, two Star pistols, 7 live cartridges for the pistols, two 0.38 revolvers with 6 live cartridges, three 9 MM pistols with 12 live cartridges, one KF make live hand-grenade, two country made handguns, six empties of AK-56 , six rotary covers, 4 cri.appeal-225-10.doc two pipe bomb casings along with explosive substances such as sulphur powder, sodium metal, ammonium nitrate, potassium cyanide powder, small iron bolls and iron nails, sulphuric acid, etc. It was also stated that the applicant's name has figured in the personal diary which was recovered from the pocket of Faisal Khan who was killed in police operation that had taken place on 29th March, 2003. It was also alleged that at the instance of accused No.1 and other co-accused the applicant had assisted terrorist Faisal Khan in getting shelter and he motivated and arranged Muslim youths to undergo training in handling of sophisticated weapons. It was more particularly pointed out that at the instance of the applicant two country made guns, two pipe bomb casings, 6 rotary covers, substance like sulphuric powder, ammonium nitrate which are used in preparing of crude bombs were recovered and this recovery went to show that the applicant was involved in the conspiracy of committing terrorist acts in Mumbai. 6. Admittedly, the applicant was taken in custody in connection with the Mulund bomb blast on 20th April, 2003 and he was shown to have been arrested on 15th May, 2003 in Ghatkopar bomb blast. He was shown to have been arrested on 9th June, 2003 in the case of Vile Parle bomb blast and in the case of Mumbai Central bomb blast he was shown to have been arrested on 2nd July, 2003. He was 5 cri.appeal-225-10.doc produced before the Magistrate for the first time on 15th July, 2003 and on the same day he retracted from his so-called confessional statements. So far as the applicant's name in the pocket diary of the slain terrorist Faisal Khan is concerned, in our opinion, the trial Court rightly held that it was not a circumstance worth requiring consideration while granting bail. 7. Mrs. Pai, the learned A.P.P., submitted that though the applicant has been on bail for the last about 1 year and 9 months, cancellation of bail is warranted even at this stage as the impugned order is perverse and grossly erroneous. She submitted that the prosecution cannot be blamed for the stay to the trial in POTA Special Case No.2 of 2003 and the said order has been obtained by accused No.1. As per Mrs. Pai, the applicant being in jail for more than six years uninterruptedly is not a sufficient reason, by itself, for the applicant to be released on bail so as to protect his liberty guaranteed under Article 21 of the Constitution of India. She submitted that the applicant has been charged for the heinous/serious crimes and he was part of the conspiracy in causing bomb blasts at more than one locations in Mumbai city in which a large number of innocent persons were injured and some of them died. In support of her arguments she has relied upon the following decisions:- 6 cri.appeal-225-10.doc 1. Puran vs. Rambilas and Anr., (2001) 6 S.C.C. 338; 2. Narendra K. Amin (DR.) vs. State of Gujarat and Anr., (2008) 13 SCC 584. 3. Gobarbhai Naranbhai Singala vs. State of Gujarat & Ors., AIR 2008 S.C. 1134. 8. In rebuttal it was submitted by Mr. Solkar, the learned Counsel for the applicant that there is no prima facie material to deny the bail to the applicant who was in the custody for more than 6 years. He also pointed out that this appeal has been filed belatedly and during the last one year and 9 months there is no act which could be attributed to the applicant so as to point out that he has violated any of the terms and conditions imposed upon him by the impugned order. The learned Counsel, therefore, submitted that at this stage there are no grounds made out to cancel the bail granted to the applicant and in any case all the relevant circumstances which were relied upon by the prosecution have been duly considered by the Special Court while allowing the bail application. It was pointed out that after the applicant had completed more than one year of custody his application for bail was required to be considered by applying the parameters under Section 439(1) of the Cr.P.C., and that at this stage it would be necessary to consider whether the prosecution has made 7 cri.appeal-225-10.doc out a case under Section 439(2) of the Cr.P.C., so as to cancel the bail granted to the applicant way back on 4th May, 2009. He also pointed out that despite the order passed by the Supreme Court on 11/8/2010 in the case of Saquib Abdul Hamid Nachan vs. The State of Maharashtra in Criminal Appeal Nos.419-421 of 2008 with Writ Petition (Crl.) No.128 of 2008 and Special Leave Petition (Crl.) No. of 2010 (D. No.178890 of 2008) the trial has not yet commenced. Mr. Solkar relied upon the following observations made by the Supreme Court in the case of Hazarilal Das vs. State of West Bengal & Anr., (2010) 1 SCC (Cri.) 381:- “7. There is nothing on record that there has been interference or attempt to interfere with the due course of administration of justice by the appellant. It also does not appear from the record that the concession granted to him has been abused in any manner. No supervening circumstances have surfaced nor shown justifying cancellation of anticipatory bail. The judicial discretion exercised by the Sessions Judge in granting the anticipatory bail has been interfered with by the High Court in the absence of cogent and convincing circumstances. We are, thus, satisfied that the impugned order cannot be sustained.” Mr. Solkar also relied upon the orders passed by this Court in 8 cri.appeal-225-10.doc releasing on bail the following co-accused:- 1. Accused No.2 – Mr. Atif Mulla (2006 All M.R. (Cri.)338. 2. Accused No.11- Mr. Aarif Hussain Sabbir Hussain Shaikh @ Arif Panwala (Criminal Appeal No.842 of 2006) 3. Accused No.15 – Adnan Bilal Mulla (2010 All M.R. (Cri.) 1212. 9. The State of Maharashtra had challenged the order passed in the case of Adnan Bilal Mulla in S.L.P. (Crl.) No.2298/2010 and the same was dismissed on 29th March, 2010 in terms of the following order:- “We are not inclined to interfere with the impugned order. Accordingly, the Special Leave Petition is dismissed. But if the respondent violates any of the conditions imposed by the Court, the State would be at liberty to move for cancellation of the bail.” 10. In the case of Narendra K. Amin(supra) the Supreme Court in para.18 observed as under:- “18. As is evident from the rival stands, one thing is clear that the parameters for grant of bail and cancellation of bail are different. There is no dispute to this position. But the question is if the trial court while granting bail acts on 9 cri.appeal-225-10.doc irrelevant materials or takes into account irrelevant materials whether bail can be cancelled. Though it was urged by learned Counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope for filing an appeal against the order of grant of bail. Under the scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Session or the High Court.” In the case of State of U.P. v. Amarmani Tripathi 2005 AIR S.C.W.4763 the Supreme Court held that while considering the application for bail what is required to be looked is:- (a) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (b) nature and gravity of the charge; (c ) severity of the punishment in the event of conviction; (d) danger of accused absconding or fleeing if released on bail; (e) character, behaviour, means, position and standing of the accused; (f) Reasonable apprehension of the witnesses being tampered with. (g) danger, of course, of justice being thwarted by grant of bail. 10 cri.appeal-225-10.doc 11. Whereas for the cancellation of bail, the Supreme Court in the case of Panchanan Mishra v. Digambar Mishra (2005) 3 SCC 143 held, “The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.” 12. In the instant case admittedly the trial in POTA Special Case No.2 of 2003 has not yet commenced despite the fact that the Supreme Court by its order dated 11th August, 2010 has vacated the stay granted by it earlier and directed to commence the trial. The confessional statements of the accused relied upon by the prosecution became vulnerable because the same have been retracted at the earliest available opportunity when the applicant was presented before the Judicial Magistrate on 15th July, 2003. The seizure 11 cri.appeal-225-10.doc articles/chemicals from the house of Uzer Mulla cannot be a circumstance against the applicant to point out his prima facie involvement in engaging in terrorist acts, as has been rightly held by the Special Court. Even if it is presumed that there was prima facie evidence to show that at the instance of accused No.1-Saquib Nachan the applicant arranged for one room on hire for Irfan @ Faisal Khan, that by itself could not be a circumstance to point out that the applicant was involved in terrorist activities. The Special Court considered, even otherwise, the confessional statement and noted that prima facie there was nothing to show that the applicant was a party to the criminal conspiracy of terrorist acts in Mumbai and exploding bombs. In the alleged recovery of diary from the pocket of slain terrorist Irfan @ Faisal Khan it was contended by the prosecution that the applicant was given Rs.50,000/- as there was a mention of the figure of Rs.50,000/- against the name of the applicant in the said diary. The trial Court considered all the circumstances and held that a prima facie case was made out by the applicant for being released on bail after completing more than 6 years and more specially when the trial remained stayed. 13. An appeal under Section 34 of the POTA Act is required to be filed within 30 days. The impugned order was passed on 4th May, 12 cri.appeal-225-10.doc 2009. This appeal has been filed on or about 30th August, 2009 and the delay was condoned on 22nd March, 2010 in Criminal Application No.1012 of 2009. These steps taken by the prosecution themselves speak eloquently of the casualness with which the State Government has approached by filing this appeal and even otherwise it has not made out any circumstance worth consideration to cancel the bail already granted to the applicant. However, we deem it fit to direct the applicant to report to the DCB, CID more frequently than as directed by the impugned order. 14. Hence, this appeal must fail at the threshold and the same is hereby dismissed. However, the applicant is directed to report to the Office of D.C.B., C.I.D., Unit -VI on every alternate day between 6.00 p.m. to 8.00 p.m. till the trial commences. (U. D. SALVI, J.) (B.H.MARLAPALLE, J.)