IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 34065 of 2008 Date of decision : March 9, 2009 Sarabjit Singh ….. Petitioner Versus State of Punjab ….. Respondent and Crl. Misc. No. M- 1945 of 2009 Date of decision : March 9, 2009 Ali Mohammad @ Alia ….. Petitioner Versus State of Punjab ….. Respondent Present: Mr. P.S. Hundal, Senior Advocate for the petitioner with Mr. Dinesh Trehan, Advocate for the petitioner. Mr. P.S. Sidhu, Addl. A.G., Punjab. *** S.S. SARON, J. Affidavits of Nishan Singh SI/SHO Police Station Dakha (Ludhiana) filed by the learned State counsel in Court today are taken on record. Crl. Misc. No. M- 34065 of 2008 and [2] Crl. Misc. No. M-1945 of 2009 This order will dispose of Crl. Misc. No. M- 34065 of 2008 filed by Sarabjit Singh son of Chuhar Singh and Crl. Misc. No. M- 1945 of 2009 filed by Ali Mohammad @ Alia son of Bhogal Khan. The said petitions have been filed under Section 439 of the Code of Criminal Procedure (“CrPC” – for short) for the grant of regular bail to the respective petitioners in the two petitions in a case registered against them for the offences under Sections 3, 4 and 5 of the Explosive Substances Act, 1908 and Section 25 of the Arms Act as also Section 120-B Indian Penal Code (“ IPC” – for short). The FIR has been registered on the statement of Balbir Singh, SHO, Police Station Dakha, Distt. Ludhiana. It is stated that Balbir Singh SHO on 2.9.2007, along with other police officials was present at Mullanpur Chowk in a Government Gypsy driven by Swarn Singh Constable. At about 11.30 p.m. a wireless QST was received from SI Subhash Chander of the Highway Patrolling Party No. 9 by Balbir Singh SHO to the effect that they (SI Subhash Chander etc.) had impounded a car under suspicious circumstances and that he (SHO Balbir Singh) should reach there immediately. SHO Balbir Singh immediately reached the spot along with his companions, where it was disclosed by SI Subhash Chander that he along with other police officials were going on patrol from Mullanpur Chowk towards Haveli when they spotted a white colour Esteem Car No. HR-27- A-0010 which was parked on the ‘kacha’ road. A young person was sitting on the driving seat. When the police stopped its vehicle in order to check the said car, the person sitting on the driving seat came out and he disclosed his name as Gurpreet Singh son of Tarlok Singh. When the Police told him that his car was to be searched, he ran away from the spot. SI Subhash Chander then informed SHO Balbir Singh on wireless and therefore, the SHO had reached the spot. Balbir Singh SHO, then checked the Esteem Car in the presence of SI Subhash Chander Crl. Misc. No. M- 34065 of 2008 and [3] Crl. Misc. No. M-1945 of 2009 and his companions. They saw a carry bag lying on the floor of left seat of the car. There was a plastic jug in the carry bag. When they removed the lid of the jug, RDX powder was found which was wrapped in a piece of paper. When it was weighed along with the jug, the weight came to 3 Kg 530 gms. A parcel was prepared and it was sealed with the seal ‘BS’. There was another carry bag lying on the rear seat, which contained two small pipes, three small sockets, one big socket, two reducers, one ‘T’ socket, six nipples, two wrenches and two live rounds of .315 bore. The two rounds of .315 bore were made into a separate sealed parcel and sealed with the seal ‘BS’. When the dash-board of the car was checked, a white colour electric wire about 50 meters in length and a prepared detonator ramp were recovered. The recovered articles were made into a separate sealed parcels and sealed with the seal of ‘BS’ and sample seal was separately prepared. Seal after use was handed over to HC Malkit Singh. The parcels and other recovered articles were taken in possession. The Registration Copy of the car bearing No. HR-27-A-0010 was lying in front of the steering and was recovered; besides, the car was also taken in possession. On the basis of the recoveries effected, the FIR in the case has been registered. Learned Senior counsel appearing for the petitioner has vehemently contended that in the charges framed on 11.12.2008, the only charge attributed to the petitioners is that of conspiracy i.e. all the accused had entered into a criminal conspiracy to do an illegal act, that is to possess the explosive substance, RDX etc. with an intent to cause explosion and thereby committed an offence punishable under Section 120-B IPC. It is contended that the petitioner were not apprehended at the spot and no recovery of articles was effected from them. It is further submitted that on the basis of the recovery of articles, the petitioner is not to be held liable for the offence of criminal conspiracy under Section 120-B IPC and the same is not remotely made out. A reference has also been made to the order passed Crl. Misc. No. M- 34065 of 2008 and [4] Crl. Misc. No. M-1945 of 2009 by this Court in the case of Dr. Bhagwan Singh Sandhu on 9.9.2008 in Crl. Misc. No. M-11227 of 2008. It is submitted that the said case is similar to the present case and a similar placed accused has been granted the concession of bail. It is also submitted that the statement of Roop Singh does not remotely connect the petitioner with the occurrence. It is also contended by the learned counsel that the petitioners were not present at the spot and from the said statement of Roop Singh, nothing comes out. Learned Senior Counsel appearing for the petitioners has submitted certified copies of the orders dated 9.9.2008 and 19.11.2008 passed in Crl. Misc. No. M-11227 of 2008 and in Crl. Misc. No. M-28056 of 2008 whereby Dr. Bhagwan Singh Sandhu and Dilbagh Singh @ Bagha respectively have been granted the concession of bail. As regards Ali Mohammad @ Alia (petitioner in Crl. Misc. No. M-1945 of 2009) is concerned, on the last date of hearing learned counsel for the petitioner had taken time to place on record an affidavit regarding details of cases pending before the trial Court at Rajasthan. In response, learned counsel for the State has submitted two affidavits of Sh. Nishan Singh SI/SHO, Police Station Dakha (Ludhiana). One affidavit has been filed in Sarabjit Singh’s case (Crl. Misc. No. M-34065 of 2008) and the other in Ali Mohammad’s case (Crl. Misc. No. M-1945 of 2009). Insofar as Ali Mohammad case is concerned, it is submitted that Ali Mohammad (petitioner) is one of the accused in the present case and apart from the present case, there are two other cases against him i.e. FIR No.1, dated 1.1.1995 under Sections 8/20, 21 and 23 of the Narcotics Drugs and Psychotropic Substances Act (“NDPS” – for short), Rules 3 and 6 of the Passport (Entry into India) Rules, 1950 and Section 188 IPC and also FIR No.18 dated 7.7.1984 under Sections 147 and 323 IPC. Both registered at Police Station Mohangarh, District Jaisalmer, Rajasthan. The petitioner Ali Mohammad @ Alia has been acquitted in FIR No.18 of 1980; and in FIR dated 1.1.1995, he has vide order dated 11.3.1997 been found innocent. Crl. Misc. No. M- 34065 of 2008 and [5] Crl. Misc. No. M-1945 of 2009 Insofar as Sarabjit Singh is concerned, various call details made between the accused with each other i.e. between the accused in the case namely Gurpreet Singh, Sandeep Singh @ Harry, Bhavdeep Singh, Sarabjit Singh (petitioner) son of Chuhar Singh, Sarabjit Singh son of Piara Singh, Harminder Singh; Palwinder Singh @ Pappu and Bhawanjit Singh (who together used one mobile), Gurinder Singh, Dr. Bhagwan Singh, Bhupinder Singh and Bhawanjit Singh have been mentioned with their mobile phone numbers. It is submitted that the call details of the said accused from the mobile numbers, landline numbers and details of their subscribers’ numbers and addresses were obtained through Constable Ravinder Pal Singh, In-charge, Computer Branch, Office of SSP, Ludhiana. These were obtained from different telecom communication companies through e-mails. The details of the calls have been mentioned and it is submitted that the said call details show that the accused made telephone calls to each other. It is submitted that Gurpreet Singh son of Tarlok Singh had two mobile numbers and one landline number. Sandeep Singh @ Harry son of Harinder Singh had one mobile number. Bhavdeep Singh son of Harinder Singh had one mobile number and one landline number. Sarabjit Singh (petitioner) son of Chuhar Singh, Sarabjit Singh son of Piara Singh, Harminder Singh son of Gurmail Singh, Palwinder Singh @ Pappu son of Surjit Singh and Bhawanjit Singh son of Gokha both have one mobile number each and Gurinder Singh son of Dalwinder Singh, Dr. Bhagwan Singh son of Bant Singh, Bhupinder Singh son of Tarsem Singh and Bhawanjit Singh son of Surinder Singh also have one mobile number each. CII Ravinder Singh has, it is submitted, also been cited as a prosecution witness in this case and his statement under Section 161 CrPC has been recorded. I have given my thoughtful consideration to the matter. As has already been noticed in the FIR that recovery of various articles of causing an explosion have been effected by SI Subhash Chander who was on patrol duty Crl. Misc. No. M- 34065 of 2008 and [6] Crl. Misc. No. M-1945 of 2009 along with the Highway Patrolling Party No.9. His police party impounded a car in suspicious circumstances. He informed SHO Balbir Singh, Police Station Dakha, Distt. Ludhiana about the incident. Then SHO Balbir Singh reached the place where the car was apprehended and substantial quantity of RDX and other materials used for causing explosion were recovered from the car. The explosive substances include two small pipes, three small sockets, one big socket, two reducers, one ‘T’ socket, six nipples, two wrenches and two live rounds of .315 bore. Besides, from the dash-board of the car an electric wire of white colour about 50 meters in length and a prepared detonator ramp were recovered. The recovered articles were made into separate sealed parcels with the seal of ‘BS. Seal after use was handed over to HC Malkit Singh. All the parcels and other recovered articles were taken in possession in pursuance of memo which was signed by the witnesses. The Registration Copy of the car bearing No. HR-27-A- 0010 was recovered lying in front of the steering and the car was also taken in possession. The petitioners in both the petitions were not apprehended at the spot. Besides, in terms of the charge-sheet, they have not been charged for the offence under Section 4 of the Act. However, it may be noticed that the statement of CII Ravinder Pal Singh, Incharge, Computer Branch, office of SSP, Ludhiana was recorded under Section 161 CrPC and the same shows that Senior officers had asked him to send e-mails to know about the call details of the mobile phones and subscribers’ name and addresses from the concerned companies for inquiry in this case. He sent e-mails on behalf of the SSP, Ludhiana to the concerned companies and after obtaining the calls details and addresses, delivered them to the concerned officers. In connection with the present case, he had delivered the calls details of the mobile numbers to his Senior officers, which are mentioned in his statement. Besides, the subscriber’s names and addresses of the mobile numbers had also Crl. Misc. No. M- 34065 of 2008 and [7] Crl. Misc. No. M-1945 of 2009 been obtained by him through e-mails and delivered the same to the concerned officer. It may be noticed that the name of the petitioner Sarabjit Singh in Crl. Misc. No. M-34065 of 2008 is mentioned in the list of the telephone numbers and in terms of the calls details that have been filed clearly show that all the accused had been talking to each other. The telephone calls made by Sarabjit Singh (petitioner in Crl. Misc. No. M-34065 of 2008) have been highlighted in the affidavit that has been filed. The trial in the case is yet to commence and the case is now fixed for 26.3.2009. The petitioner Sarabjit Singh in Crl. Misc. No. M-34065 of 2008 was arrested on 7.1.2008. As regards the bail granted to Dr. Bhagwan Singh Sandhu on 9.9.2008 in Crl. Misc. No. M-11227 of 2008 it may be noticed that while granting bail it was noticed that he was not apprehended at the spot. Besides, the investigating agency had not been able to collect any evidence to the effect that he was registered owner of the car from which the impugned recovery had been effected. Dilbagh Singh @ Bagha – petitioner in Crl. Misc. No. M-28056 of 2008 was granted bail on 19.11.2008. It was noticed that the only allegation against him was that he, in his capacity as an employee of SGPC, arranged the stay of the co- accused. His name, qua that role, had figured in the confessional statement of co- accused Roop Singh. It was noticed that except for arranging the stay of the co- accused, there was no other incriminating evidence against him. Therefore, in the said circumstances, Dr. Bhagwan Singh Sandhu and Dilbagh Singh @ Bagha were granted the concession of pre-arrest bail. Insofar as the present petitioner Sarabjit Singh (in Crl. Misc. No. 34065 of 2008) son of Chuhar Singh is concerned, it may be noticed that there are allegations that he had made various calls to others and his role therefore cannot be said to be the same or on parity with that of Dr. Bhagwan Singh Sandhu or Dilbagh Singh @ Bagha who have been granted the Crl. Misc. No. M- 34065 of 2008 and [8] Crl. Misc. No. M-1945 of 2009 concession of bail. The evidentiary value of the statements referred by the counsel for the petitioner are to be gone into during the trial of the case. Insofar as Ali Mohammad @ Alia son of Bhogal Khan in Crl. Misc. No. M-1945 of 2009 is concerned, it may be noticed that he was involved in other cases also i.e. FIR No. 1 dated 1.1.1995 registered at Police Station Mohangarh Distt. Jaisalmer for the offences under Sections 8/20, 21 and 23 NDPS Act and Rules 3/6 Passport (Entry into India) Rules, 1950 and Section 188 IPC. Besides, in terms of the affidavit of Sh. Nishan Singh SI/SHO PS Dakha which has been submitted in Court today, the petitioner Ali Mohammad @ Alia son of Bhogal Khan in Crl. Misc. No. M-1945 of 2009 was also involved in two other FIRs in which, however, he has been acquitted. In the order dated 1.11.2006, the question that was considered by the learned Judicial Magistrate Ist Class, Kolayat, Bikaner was whether the accused on 4.4.1998 had entered into India without a valid passport and in this manner had committed an offence under Rules 3 and 6 of the Passport (Entry into India) Rules, 1950 and therefore, was liable for punishment. It was observed that he had in an illegal manner gone into Pakistan and was apprehended by the Pakistani Rangers for which he was tried in Pakistan. In between he had got bail from the Court at Pakistan and without passport he had come back to India. However, in respect of the said allegation, no witness had been produced and accordingly, he was acquitted of the said offence under Rules 3/6 of the Passport (Entry into India) Rules, 1950. In the other cases that were registered against Ali Mohammad @ Alia (petitioner in Crl. Misc. No. M-1945 of 2009) for the offences under Sections 8/20, 21 and 23 NDPS Act and Section 188 IPC, he was acquitted of the said offence vide order dated 11.3.1997. A perusal of the said orders, however, show that the petitioner has propensity to commit crimes but due to lack of evidence, he had been acquitted in the two cases. Crl. Misc. No. M- 34065 of 2008 and [9] Crl. Misc. No. M-1945 of 2009 In the circumstances, no ground for grant of bail to the petitioners (i.e. Sarabjit Singh in Crl. Misc. No. M-34065 of 2008 and Ali Mohammad @ Alia in Crl. Misc. No. M-1945 of 2009) is made out. Accordingly, the Crl. Misc. No. M-34065 of 2008 and Crl. Misc. No. M-1945 of 2009 are dismissed. However, nothing observed herein shall be construed as an expression of opinion on the merits of the present case and the learned trial Court shall consider the evidence and material as is adduced before it. (S.S. SARON) JUDGE March 9, 2009 amit