CR.A/997/1998 1/96 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 997 of 1998 With CRIMINAL APPEAL No. 993 of 1998 With CRIMINAL APPEAL No. 1040 of 1998 With CRIMINAL APPEAL No. 952 of 1998 With CRIMINAL APPEAL No. 953 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= MOHMAD FAZAL MOHMAD HASANAT - Appellant(s) Versus STATE OF GUJARAT - Respondent(s) ================================================= Appearance : CR.A/997/1998 2/96 JUDGMENT CRIMINAL APPEAL NOS. 997/98, 993/98 AND 1040/98. MR AA HUSSENI with MR PRAFUL YAGNIK for Appellant MR RC KODEKAR ADDL. PUBLIC PROSECUTOR for respondent – State of Gujarat. Criminal Appeal Nos.952/98 and 953/98. MR RC KODEKAR APP for appellant – State of Gujarat Mr. AA Husseni with Mr Praful Yagnik for respondent – Accused. ================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 22.4.2008/13.5.2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. The appellants of Criminal Appeal Nos.997/98, 993/98 and 1040/98 ('A-1', 'A-2' and 'A-3' for short) were charged and tried by the learned Additional Sessions Judge, Mehsana, in Sessions Case Nos.108/98 and 197/97 for commission of the offences punishable under Section 120B read with Sections 121, 121A, 122 and 123 of the Indian Penal Code ('IPC' for short) and Sections 4 (b), 5 and 6 of the Explosive Substances Act, 1908 and CR.A/997/1998 3/96 JUDGMENT also under Section 25 (1AA) of the Arms Act, 1959, on the accusation that they, being members of Pakistani Spying Institute, ISI, hatched criminal conspiracy of waging war against the Government of India and with a view to cause damage to the properties and carnage of human beings in big cities like Ahmedabad and Mumbai in India and spreading terrorism in India on the Republic Day i.e., 26.1.1997, with the financial assistance of Dawood Ibrahim, a resident of Dubai, intruded in India with weapons, ammunitions and bulk quantity of RDX from Verva of Pakistan to Mehsana, via Badmer - Dantiwada and A-1 was apprehended and arrested at Mehsana with large quantity of weapons, RDX, detonators, etc., in presence of the panchas and the members of the raiding party and in the said act of A-1, A-2 and A-3 also hatched conspiracy with him. 1.1. At the end of the trial, all the accused persons were found guilty of the offences punishable under Sections 120B, 121, 121A, 122 and 123 of the IPC, Sections 4(b) and 5 and 6 of CR.A/997/1998 4/96 JUDGMENT the Explosive Substances Act, 1908 and under Sections 25 (1AA) of the Arms Act, 1959. Therefore, vide judgment and order dated 29.9.1998 they were convicted for the said offences and sentenced to imprisonment for life and fine of Rs.1 lakh i.d., SI for three years for the commission of the offences under Sections 120B, 121, 121A, 122 and 123 of the IPC. But no separate sentence is imposed on the accused for commission of the offences under the Explosive Substances Act and the Arms Act. 2. Aggrieved by the above judgment and order of conviction and sentence, A-1 has filed Criminal Appeal No.997 of 1998 and A-2 has filed Criminal Appeal No.993 of 1998 whereas A-3 has filed Criminal Appeal No.1040 of 1998 with the aids of Section 374 of the Code of Criminal Procedure ('the Code' for short). 2.1. Aggrieved by the aforesaid judgment and order, the State of Gujarat has also filed Criminal Appeal No.952 of 1998 against A-1 and A- CR.A/997/1998 5/96 JUDGMENT 2 and Criminal Appeal No.953 of 1998 against A-3 with the aids of Section 377 of the Code on the ground that the sentence of imprisonment for life imposed on the accused for the offence under Section 121 read with Section 120B IPC is inadequate and the maximum sentence, i.e., capital punishment should be imposed on them. 3. The prosecution case, as disclosed from the FIR as well as the secret information received by P.W.25, Vinodkumar Parmahans Mal, DSP, Mehsana and also panchnama of seizure of the muddamal articles, i.e., RDX, detonators, pistols, etc., from A-1 when he was apprehended and arrested in the presence of panchas and the members of the raiding party and unfolded during trial, is as under: 3.1. P.W.15, Karamshibhai K. Desai, PSI, LCB, Mehsana, lodged a complaint, inter alia, alleging that P.W. 25, Vinodkumar P. Mal, DSP, Mehsana received a secret information through a private informant that Markaj Ulwala of Pakistan is a CR.A/997/1998 6/96 JUDGMENT staunch organization by the support of Pakistani Spying Institute ISI and it functions by the support of ISI. It has a terroristic outfit namely Sippa Sayba. With a view to cause damage to the properties and carnage of human-beings in large extent in big cities like Ahmedabad and Mumbai and also for spreading terrorism in India on the Republic Day i.e., 26th January 1997, two persons of Karachi, namely, Kasam and Ibrahim Noori, with the financial assistance of Dawood Ibrahim, a resident of Dubai, intruded in India illegally, with RDX, detonators, pistols, etc., from Verva of Pakistan to Mehsana via Badmer, Dantiwada and a person with the name Mohmad Fazal Mohmadhasnat Musalman was to come to deliver the same to both the cities i.e., Ahmedabad and Mumbai and out of the said weapons delivery of RDX was to be given to a person named Mubin and his companions near Sahyog Milk Bar, Opp. Dudhsagar Dairy, Highway Road, Mehsana. 3.2. On getting this information, for the purpose of carrying out raid at the said place, CR.A/997/1998 7/96 JUDGMENT Vinodkumar P Mal, requested a police constable to procure two persons to serve as panchas and accordingly (1) Ratuji Madhuji Rajput, residing at 17, Ganeshnagar, Mehsana and (2) Maheshkumar Jashubhai Barot, Uncho Bhatwada, Mehsana were called in the chamber of Vinodkumar P. Mal and there they met R.V. Nandasana, PSI, TF, Mehsana, Mohabatsingh Kubersingh U.H.C. B No. 1580 of LCB Branch, Jibhai Jesangbhai U.P.C. B. No. 2318, Rameshji Rajjuji U.P.C. B No.2345, Sureshbhai Vastabhai U.P.C. B No.1513, Bhikhaji Baldevji U.H.C. Of T.F. Branch B. No. 1340, Pratapsinh Asalsingh U.H.C. etc., and they were informed about the secret information received by Vinodkumar P. Mal and as the panchas showed their willingness to act as panchas, after preparing preliminary panchnama, Vinodkumar P. Mal, the panchas and other police personnel proceeded towards the place where raid was to be carried out, in Jeep No.GJ-2-G-155 and some other police personnel proceeded in Government vehicle No.GJ-2-G-153 and came near Mehsana Taluka Police Station, Highway Road, and stopped CR.A/997/1998 8/96 JUDGMENT the Government Vehicles on a side and thereafter they proceeded on foot towards Sahayog Milk Bar situated opposite Dudhsagar Dairy and kept watch on the road. 3.3. Meanwhile, at 11:30 hours, one auto rickshaw had come from Radhanpur Char Rasta and stopped near Sahyog Milk Bar, in which a person having worn a red coloured shirt was sitting in the rear seat of rickshaw and rickshaw driver was sitting on driver's seat. At that time, as a person came near the rickshaw, the raiding party carried out the raid and caught both the persons in the rickshaw and also the person who had come near the rickshaw. On asking the name and address of the person who was sitting at the backseat of the rickshaw, who had worn red coloured shirt, in presence of panchas, he had stated his name as Mohmad Fazal Hasnat by cast Pathan Musalman, residing at House No.34/70 Chiragshi Mohalla Dungarpada, Ajmer, Rajathan. On asking the name of rickshaw driver, he had stated his name as Pravinbhai Prahladbhai Patel, originally residing CR.A/997/1998 9/96 JUDGMENT at village Geratpur, Taluka District Mehsana and at the relevant time residing at Bahuchar Society, Behind Prashant Cinema, Mehsana. On asking the name of the person who had come near the rickshaw, he had stated his name as Popatbhai Jesangbhai Chaudhari, residing at Bagosana, Taluka District Mehsana. The said rickshaw was of black yellowish colour, having blackhood which was of Bajaj Co. The registration number GJ-2-U- 2051 was written in English in black on the four sides of the rickshaw. Its chassis No. was C22DL078823 and Engine No. was E-22DL079443. There were total seven packed cartoons in the said rickshaw, in which five cartoons were that of sack bags and two cartoons were that of polythene bags, in which the cartoon of blue colour was stitched by jute string. 3.4. On opening it and looking in it, it was found that there was one polythene bag of blue colour. On opening it and looking in the bag, total 15 pistols with magazines were found. They all were put in one leather cover and as there CR.A/997/1998 10/96 JUDGMENT was an additional magazine in a box made upon leather cover total 15 additional magazines were fixed. After taking out all said 15 pistols and magazines to ascertain whether any mention was made about any 'make' (manufacturer) nothing of that sort could be noticed. There was mark of five stars on both the sides of the handle. All the pistols were of same 'make'. All the said pistols and magazines were empty. Numbers thereupon were as under: Sr. No. Barrel No. Handle No. Magazine No. with pistol Magazine no. of cover 1 32025208 33025208-66 5208 5208 2 32063595 32063595-66 3595 3595 3 33023557 33023557-66 3557 3557 4 32067880 32067880-66 7880 7880 5 32068620 32068620-66 8620 8620 6 32066171 32066171-66 6171 6171 7 33014761 33014761-66 4761 4761 8 33023995 33023995-66 3995 3995 9 32065552 32065552-66 5552 3932 10 32065131 32065131-66 5131 5131 11 32068074 32068074-66 8074 8074 12 32060528 32060528-66 0628 0628 13 32066234 32066234-66 6234 6234 14 32065666 32065666-66 5666 4419 CR.A/997/1998 11/96 JUDGMENT Sr. No. Barrel No. Handle No. Magazine No. with pistol Magazine no. of cover 15 33022904 33022904-66 2904 2904 Calculating the price of Rs. Two lakhs per pistol, the price of aforesaid fifteen pistols with magazines fixed in cover was calculated at Rs. Thirty lakhs and calculating the price of Rs.five thousand per magazine, the price of additional fifteen magazines was calculated at rupees seventy five thousand. Putting all the said pistols with magazine covers in the same bags, counting the value of bag at Rs.00=00, tying the same with jute string, the same was seized for the purpose of investigation. 3.5. On looking the second cartoon, the sack was found stitched by jute string. There was another polythene bag having white blue lines in it. Punjab Food Depart. 1994-95 was written in English there upon. On opening said bag and looking inside it, total 20 pistols with magazines and 18 additional magazines were found. CR.A/997/1998 12/96 JUDGMENT On looking upon barrel of thirteen pistols out of 20 pistols, “Made in Pakistan CAL 7. 63 MM 30 Automatic pistol' was written in English upon the same, in which black coloured plastic was affixed on both the sides of handles of eight pistols and brown coloured plastic was affixed on both the sides of handle of remaining five pistols. Out of said thirteen pistols, a ring was fixed to one pistol and looking one pistol, 'Made in Pakistan' was written in English on barrel thereof and CAL 7.63.MM.30 was written twice at the lower part. Looking remaining six pistols 'Made in Pakistan and Pak Made' was written in English on the barrel. Out of this, star BHA Veriya Iya bar ISPA CAL 30 was written in English upon a pistol. CAL 7.63 MM 30 pistol was written in English upon second pistol. CAL 7.65 MM.30 bore was written in English upon barrel of third pistol. Looking on the barrel of fourth pistol 'A-1 Pak Made 30 bore A-1 and CAL 30 Mouser' on upper part of barrel and 'Special Gift' was written in English on second part of barrel. Looking on barrel of fifth pistol 'Pak Made' and CR.A/997/1998 13/96 JUDGMENT 'CAL 7.63 MM 30' was written in English at upper and lower part. 'CAL 30 MM Automate' was written in English on barrel of sixth pistol. All these twenty pistols with magazines were empty and the additional magazines were also empty. On calculating the price of a pistol at rupees two lakhs, the price of twenty pistols was worked out at Rupees forty lakhs and the price of Rupees ninety thousand was worked out for eighteen magazines at the rate of five thousand per magazine. Putting said twenty pistols and additional eighteen magazines in a bag and tying the same with jute string, the same was seized for the purpose of investigation. 3.6. On looking the third cartoon, the sack was stitched by jute string. On opening the jute string and looking the same, one blue coloured polythene bag was found in it. Upon opening and looking in it, total twenty pistols with 20 magazines were found. All the said pistols and magazines kept inside thereof were empty. Looking on the barrels of said twenty pistols, it was CR.A/997/1998 14/96 JUDGMENT found that “Made in Pakistan. CAL 7.63 MM 30 Automatic pistol” was written in English thereupon. On looking the handle of ten pistols out of twenty, a black coloured plastic was affixed on both sides and looking handles of remaining ten pistols, brown coloured plastic was affixed on both the sides, in which, the strip of yellowish coloured plastic was affixed on both the sides of the handles of four pistols. On counting the price of twenty pistols at the rate of rupees two lakhs per pistol, the price of rupees forty lakhs was arrived at and on counting the cost of a magazine at rupees five thousand, the price of rupees one lakh has been arrived at for twenty magazines. Putting the said pistols with magazines and twenty empty magazines, in the same bag, the same was tied with jute string and was seized for the purpose of investigation. 3.7. The fourth cartoon was a sack bag. On opening and looking the same, a white polythene bag was found inside. On opening the same, twenty pistols with magazines and twenty additional CR.A/997/1998 15/96 JUDGMENT magazines were found. Out of said twenty pistols, 'Made in Pakistan CAL 7.63 M 30 Automatic' was written in English, on barrels of sixteen pistols. Black coloured plastic was affixed on both the sides of handle of five pistols out of them. Brown coloured plastic was affixed on the handle of ten out of remaining eleven, in which a ring was affixed on two pistols. Yellow coloured plastic was affixed on both the sides of the handle of one pistol. A ring was affixed on a pistol out of five pistols having handle of black coloured plastic and looking three pistols with magazines, they were without any mark, in which brown coloured plastic was affixed on both the sides of two pistols. Black coloured plastic was affixed on the handle of a pistol. On one pistol 'Pak Made' was written in English on the barrel near the handle of the pistol. Black coloured plastic was affixed on both the sides of handle of that pistol. The price of rupees forty lakhs was counted for twenty pistols at the rate of rupees two lakhs per pistol and the cost of rupees one lakh was calculated for twenty CR.A/997/1998 16/96 JUDGMENT magazines at the rate of rupees five thousand per magazine. Putting said twenty pistols and twenty empty magazines in that bag counting the value of the bag at Rs.00=00 and tying the upper part of bag by jute string, the same was seized for the purpose of investigation. 3.8. The fifth cartoon was a sack bag. On opening and looking in it, a white polythene bag was found. As it was also stitched by jute string, on opening and looking inside, twenty pistols with magazines and twenty additional empty magazines were found. On the said polythene bag some thing was written in Urdu language. Description of said twenty pistols was as under: (1) 'Pak Made 20 bore' was written in English on the barrel of three pistols, in which 30 was written in English on upper part of barrel of a pistol. Black coloured plastic was affixed on both the sides of the handle of all three pistols. CR.A/997/1998 17/96 JUDGMENT (2) 'Made in Pakistan Special 30 bore' was written in English on the barrels of two pistols, in which black coloured plastic was affixed on both the sides of handles of a pistol and brown coloured plastic was affixed on both the sides of the handle of another pistol. (3) 'Made in Pakistan 30 bore' was written in English on the barrel of two pistols, in which black coloured plastic was affixed on both the sides of handle of the pistol and brown coloured plastic was affixed on the handle of another pistol. (4) 'Made in Pakistan Cal 7.63 MM 30 Automatic pistol' was written in English on the barrel of two pistols, in which black coloured plastic was affixed on both the sides of the handle of the pistol and brown coloured plastic was affixed on both the sides of the handle of another pistol. (5) Looking two pistols, 'Made in Pakistan CAL 7.63 MM 30 Automatic' pistol was written in CR.A/997/1998 18/96 JUDGMENT English on barrels of both the pistols. Out of this, plastic coloured plastic was affixed on both the sides of handle of one pistol and brown coloured plastic was affixed on the handle of another pistol. (6) Looking one pistol, 'Made in Pakistan CAL 7.63 MM 30 bore P.I.' was written in English on the barrel of one pistol and 'King Kobra' was written on upper part of barrel. Black coloured plastic was fixed on both the sides of the handle and a ring was affixed on the handle beside the magazine. (7) 'Made in Pakistan 7.63 MM 30 pistols, 30' was written beside in English on the barrels of two pistols. Black coloured plastic was affixed on both sides of the handle of both the pistols. (8) Looking three pistols, 'Made in Pakistan 3.63 MM 30 pistols' was written in English on barrels of all the three pistols. Brown coloured plastic was affixed on both the sides of two out of them CR.A/997/1998 19/96 JUDGMENT and black coloured plastic was affixed on both the sides of the handle of third pistol. (9) 'Made in Pakistan CAL 7.63 MM 30 bore' was written in English on barrel of three pistols, in which black coloured plastic was affixed on both the sides of the handle thereof, in which two rings were affixed to a pistol. No. 11499 was written in English at the lower part of barrel of a pistol, upon which a ring was affixed. Brown coloured plastic was affixed on both the sides of third pistol. The price of rupees forty lakhs was calculated at the rate of rupees two lakhs per pistol and price of rupees one lakh was counted for twenty magazines at the rate of rupees five thousand per magazine. Putting said twenty pistols and magazines in the same bag, counting the value of the bag at Rs.00=00, tying the bag with jute string, the same was seized for the purpose of investigation. 3.9. As the sixth cartoon being a sack bag, it was opened and on looking inside one more white CR.A/997/1998 20/96 JUDGMENT polythene bag was found. As jute string was tied thereupon, it was untied and on looking inside, total twenty pistols with magazines and twenty additional empty magazines were found. Looking all the said pistols, they were of the following description: (1) 'Made in Pakistan, CAL 7.63 MM 30 Automatic P.' was written in English on barrel of two pistols. Black coloured plastic was affixed on both the sides of the handle of both. (2) 'Made in Pakistan CAL 7.63 MM 30' was written in English on the barrel of one pistol. Brown coloured plastic was affixed on both the sides of the handle thereof. (3) 'Made in Pakistan, CAL Pak 30 bore' was written in English on both the sides of the handle thereof. Brown coloured plastic was affixed on both the sides of the handle thereof. (4) 'Made in Pakistan CAL Pak 30 bore' was CR.A/997/1998 21/96 JUDGMENT written in English on the barrel of a pistol. Black coloured plastic was affixed on both the sides of handle thereof, in which a round saffron coloured plastic was affixed on both sides of the handle of one pistol. (5) 'Made in Pakistan MM 30 A.U.M.L.' was written in a manner that it can be read pale and brown coloured plastic was affixed on both the sides of the handle thereof. (6) 'Made in Pakistan bore MM 30 CAL 65' was written on barrel of a pistol and brown coloured plastic was affixed on both sides of the handle thereof. (7) 'Made in Pakistan Cal 7.65 MM 30 Automatic pistol' was written in English on barrel of a pistol. Brown coloured plastic and two yellow strips were affixed on both the sides of the handle thereof. (8) 'Made in Pakistan Automatic Pistol CAL 7.63 CR.A/997/1998 22/96 JUDGMENT MM 30' was written in English on barrel of a pistol. Looking the handles, black coloured plastic was affixed on both the sides thereof. (9) 'Made in Pakistan CAL 7.63 MM 30' was written in English on the barrel of a pistol. Brown coloured plastic was affixed on both the sides of the handle thereof. (10)'Made in Pakistan Cal 7.63 MM 30' in English and writing as above was written at the lower part thereof. Brown coloured plastic was affixed on both the sides of the handle thereof. (11)'Made in Pakistan bore 30 CAL 7.63' was written in English on the barrel of a pistol. Black coloured plastic was affixed on both the sides thereof. (12)'Made in Pakistan CAL 30 MM Automatic pistol' was written in English on the barrel of a pistol. Black coloured plastic was affixed on both the sides thereof. CR.A/997/1998 23/96 JUDGMENT (13)'Made in Pakistan CAL 30 MM Bore pistol 21' was written in English on the barrel of a pistol. Plastic like yellow colour strips in the plastic of brown colour was affixed on both the sides of the handle thereof. (14)'Made in Pakistan CAL 7.63 MM 30 bore' was written in English on the barrel of a pistol and looking on the handle black coloured plastic was affixed on both the sides. (15)'Made in Pakistan CAL 30 MM Automate' was written in English on the barrel of a pistol and one ring was affixed. Black coloured plastic was affixed on both the sides of the handle thereof. No.-A3730 was written at the lower part of the handle beside magazine. (16)'Pak Made CAL 763 MM .30 Automatic P.' was written in English on the barrel of a pistol. Brown coloured plastic was affixed on both the sides of the handle thereof. CR.A/997/1998 24/96 JUDGMENT (17)'Made in Pakistan CAL 7.63 MM 30' was written on the barrel of a pistol. Looking the handle thereof, the plastic of a strip like yellow colour in the plastic of brown colour was affixed on both the sides. (19)'Pak Made CAL 7.63 MM 30' was written in English on the barrel of a pistol. Brown coloured plastic was affixed on both the sides of the handle thereof. The cost of twenty pistol was counted rupees forty lakhs at the rate of rupees two lakhs per pistol and the cost of rupees one lakh for twenty empty magazines was counted at the rate of rupees five thousand per magazine. Keeping all the said pistols and magazines in the same bag and tying the bag with jute string, counting the value of the bag