1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL (BAIL) NO. 115 OF 2010 IN BAIL APPLICATION NO. EXH.82 OF 2009 IN P.O.T.A. CASE NO. 2 OF 2003 Anwar Ali Javed Ali Khan ..Appellant [Original accused no.9] Vs. State of Maharashtra ..Respondent/ [Original Complainant] .... Mr. Sushan Kunjuraman advocate for Appellant Mr. V.B.Konde-Deshmukh APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE OF RESERVING THE ORDER : 26th MARCH, 2010 DATE OF PRONOUNCING THE ORDER : 5th APRIL, 2010 P.C. [PER SMT.V.K.TAHILRAMANI,J.]: 1 Heard the learned advocate for the appellant and the learned 2 APP for the State. 2 This appeal is directed against the order passed by the learned Special Judge under P.O.T.A. 2002 for Greater Bombay dated 29th September, 2009 in Special Case No. 2 of 2003. By the said order, the application Exhibit-82 wherein the appellant had prayed for bail, came to be rejected. 3 The appellant is original accused no.9 in P.O.T.A. Special Case No.2 of 2003 which is pending before the Special Court constituted under the P.O.T.A. 2002 i.e. Prevention of Terrorism Act, 2002, for Greater Bombay. POTA Special Case No.2 of 2003 is arising out of three bomb blasts which took place at three different places in the city of Mumbai on different dates i.e. 1) on 6th December, 2002, a bomb exploded at Hotel McDonald which is situated at Mumbai Central Railway Station. In this incident, 25 persons sustained injuries and property worth Rs.28.00 lacs was damaged, 2) on 27th January, 2003 there was explosion of bomb in vegetable market at Vile Parle (East). In this incident, one person died on the spot and 32 persons sustained injuries, 3) on 13th March, 2003 a bomb explosion took place in Karjat Bound Local train at Mulund Railway Station. In this incident, 11 3 commuters were killed on the spot and 82 persons sustained injuries. Investigation in all the three bomb blasts was transferred to DCB CID. Investigation in above three bomb blasts was done by the officer of the rank of ACP and after completing the investigation into the above three bomb blasts, he filed charge sheet against the appellant and 15 other co-accused persons in the Special Court on 19th July, 2003. 4 The application for bail was preferred before the learned Special Judge only on the ground of parity. The case of the appellant was that co-accused Gulam Khotal (accused no.4) was granted bail by the Special Judge on 4th May, 2009 and according to the learned advocate for the appellant, the appellant ’s case stands on a better footing than that of co-accused Gulam Khotal, hence, the appellant is entitled to be released on bail on the ground of parity. Before us also, the very same ground was raised. Though the learned advocate for the appellant had tried to submit that co-accused Adnan Bilal Mulla and co- accused Aatif Nasir Mulla were also granted bail by this Court and the case of the appellant being similar to these co-accused, he is also entitled to be released on bail. However, thereafter, he fairly admitted that no such ground was taken before the Sessions Court, against whose order, this appeal is directed, nor has any such ground been 4 taken in the present appeal. He further submitted that co-accused Adnan Bilal Mulla (original accused no.15) was granted bail by this Court on 22nd February, 2010 i.e. after the present appeal was filed, hence, the ground could not be taken. As far as parity with co-accused Adnan Mulla is concerned, he seeks liberty to file a fresh application before the Sessions Court, if found necessary. Liberty as prayed for, is granted. Thus, he categorically stated that he is restricting the present appeal only to the ground of parity with co-accused Gulam Khotal. Hence, we are considering the appeal in the light of this ground only. 5 The learned advocate for the appellant submitted that as far as co-accused Gulam Khotal is concerned, the incriminating circumstances which could be culled out against him from the charge sheet are: (i) The pocket telephone diary found on the body of terrorist namely Irfan @ Faisal Khan who was gunned down in police operation at Goregaon on 29th March, 2003 contained name of accused no.4 showing that he was financed to the tune of Rs.50,000/- by the terrorists. Co-accused was already knowing that Irfan @ Faisal Khan was a member of Lasker-E-Toiba. 5 (ii) motivated and arranged Muslim youths to undergo arms training. (iii)harboured and gave shelter to terrorist Irfan Faisal Khan and he was active member of SIMI. (iv)Fire arms and ammunition were recovered at his instance. (v) Co-accused Gulam Khotal was absconding from 21.3.2003 to 21.4.2003, on which date, he was arrested at Harne, Dabhol District Ratnagiri. (vi)He has also attended several conspiracy meetings with accused no.1 Saquib Nachan. 6 The learned advocate for the appellant submitted that case of the present appellant stands on a better footing than that of Gulam Khotal. He further submitted that despite the above incriminating circumstances appearing against the co-accused Gulam Khotal, he has been granted bail by the Special Court and on the ground of parity, the appellant being identically situated, would be entitled to be granted bail by this Court. 7 Mr. V.B.Konde-Deshmukh, the learned APP stated that the case of the appellant is not similar to that of co-accused Gulam Khotal. He stated that there is no parity as far as the appellant and co-accused 6 Gulam Khotal is concerned. With the assistance of both sides, we have gone through the charge sheet. On going through the material, we find that the case of the appellant is quite distinguishable from the case of co-accused Gulam Khotal. We have carefully examined all the material and we find that the present appellant is facing serious charges under the Prevention of Terrorist Act, which has been enacted for combating terrorist activities. Appellant is facing charge under Sections 3 and 4 of POTA 2002, read with Sections 302, 307, 320, 32, 427, 120-B, 120-A of the IPC read with Section 5, 9(b) of Indian Substance Act, read with 3 of Explosives Substance Act and Section 3 of Damage to Public Property Act, as well as under Section 151 of Indian Railways Act. Some of the charge are very serious, punishable with severe punishment. We find that the material disclosed from the charge sheet is overwhelming which is sufficient to substantiate the charge against the appellant. 8 As far as the present appellant is concerned, the following incriminating circumstances emerge against him in the charge sheet in POTA Special Case No.2 of 2003: (i) The pocket telephone diary found on the body of terrorist namely Irfan @ Faisal Khan on 29.3.2003 who was gunned down in police 7 operation at Goregaon alongwith two other accused, contained name of the present applicant showing that he was financed to the extent of Rs.1,00,000/- by the terrorist i.e. Irfan. (ii) Appellant motivated and arranged Muslim youths to undergo arms training. (iii)Appellant himself underwent arms training in handling and firing of sophisticated firearms and making of bombs. (iv)Appellant harboured terrorist Irfan @ Faisal Khan in his flat at Pune for few days. (v) A pistol came to be recovered from the possession of the appellant. vi) Appellant has made confessional statement under Section 32 of POTA 2002. 9 The material on record shows that the appellant is also member of SIMI. He has confessed his guilt and accordingly confessional statement of the appellant is recorded after following the necessary procedure. He has confessed his connection with Pakistani terrorist Faisal Khan and has arranged shelter for him at Pune and Khopoli. One 0.9 mm pistol loaded with live cartridges came to be recovered from the flat of the appellant at Kondva, Pune on 20th May, 8 2003. The appellant himself underwent training of handling and firing sophisticated weapons such as AK-56 and preparation of bombs. He had also motivated Muslim youths to undergo such training. During the course of investigation when the name of the appellant was disclosed in the involvement of the offence at that time, the appellant tried to flee away, but it was his advocate who produced the appellant before the police and thereafter he was arrested on 11th May, 2003. On behalf of the prosecution, it was submitted that there is every possibility that appellant may abscond if he is released on bail. 10 What is most significant to note is that the appellant himself underwent arms training and training in preparation of bombs at Mahuli hills and Karvi hills in Thane District. It is to be noted that all the three cases were of bomb blasts at different places in Mumbai. However, the co-accused Gulam Khotal did not take part in any such training of handling firearms or making of bombs. This itself is a very significant distinguishing factor as far as the case of both these accused are concerned. The present case is also under Section 120-B of IPC i.e. of criminal conspiracy. From the material collected by the Investigating Agency, it appears that this is a case of widespread conspiracy wherein a large number of accused are involved. One of the objectives of the conspiracy appears to be to strike terror in the people by using bombs. 9 All the three cases which were taken over for investigation by DCB CID involved bomb blasts at various places in Mumbai. This had led to loss of large number of lives and almost 140 people sustained injuries due to this bomb blasts. There was also widespread destruction of property. All this was done with the help of bombs. It is seen that all the three bomb blasts were the result of systematically planned and well orchestrated acts of conspiracy. It is pertinent to note that the appellant had attended the training camp where the training was imparted to handle firearms and they were given training in the making of bombs. 11 We have already observed earlier that co-accused Gulam Khotal did not take part in such training of handling or firing of firearms or training in making of bombs, thus it is seen that the case of the appellant is not identical to the case of co-accused Gulam Khotal. The material in respect of the appellant is of more serious nature than that of co- accused Gulam Khotal. Therefore, it cannot be said that there is any parity with co-accused Gulam Khotal. 12 Looking to the above facts, we find no merit in this appeal and the appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.] 10