:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 56 OF 2005 CRIMINAL APPEAL NO. 56 OF 2005 CRIMINAL APPEAL NO. 56 OF 2005 Mr. Aatif Nasir Mulla ] a Muslim, Indian Inhabitant ] aged 28 years, Occu : Service ] Resident of House No. ] Borivali, Post Padga, ]..Appellant District Thane (Presently in ](Ori.Accused Judicial Custody (at Thane Jail)] No.2) versus The State of Maharastra ] Through the DCB, CID, Police ]..Respondent Head Quarters, Crawford Market, ](Original Mumbai 400 001 ] Complainant Mr. R. M. Agrawal with Mr. M. H. Solkar for the Appellant - Original Accused No.2. Mr. S. R. Borulkar, P.P, Mrs. P. H. Kantharia, APP and Mr. D. S. Mhaispurkar, APP for the Respondents - State. CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & V. M. KANADE, JJ. V. M. KANADE, JJ. V. M. KANADE, JJ. DATE : 19TH DECEMBER,2005 DATE : 19TH DECEMBER,2005 DATE : 19TH DECEMBER,2005 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Heard learned counsel for the appellant - original accused no.2 and learned P.P. for the State. 2. Appellant - Accused is one of the accused in :2: POTA Special Case No. 2 of 2003 pending before the Special Court, Mumbai. He filed an application for bail No. 2 of 2004. There were two other Misc. Applications. All of them were heard and decided by the Special Court on 15.12.2004 and the application were rejected. Therefore, this Appeal under the provisions of The Prevention of Terrorism Act, 2002 (hereinafter referred to as "POTA Act"). 3. The charge against the accused along with others, is that there was a criminal conspiracy to cause bomb blast, which, in fact, occurred at Mulund, Vile Parle and Mumbai Central pursuant to the conspiracy. According to Mr. Agarwal, the only evidence against the accused that is collected by the prosecution is confessional statement of the co-accused and recovery of AK-56. Mr. Agarwal contended that the provisions of bail in offence under POTA have been diluted by the Supreme Court in different judgments, which he relied upon. Secondly, he also contended that the Supreme Court has now clearly laid down that the confessional statement of one accused cannot be used against other, and, therefore, that piece of evidence, heavily relied upon by the prosecution, cannot be :3: used, at all, against the accused. 4. According to Mr. Agarwal the recovery of AK-56 at the instance of the accused has occurred much after three bomb blasts took place in Mumbai. There is no evidence of the use of the said weapon and nothing to show that the accused was the person who owned the said rifle. Mere knowledge of keeping the AK rifle at a particular place, cannot at all be taken and shown as involvement of the accused in the conspiracy. Mr. Agarwal also contended that accused is a Graduate in Political Science. He has done his M.BA. from Pune University. He was employed in a well known company. He hails from a respectable family, and, therefore, considering all the circumstances, he was entitled for bail. 5. On the other hand the learned PP contended that the offence against the accused and the others, are very serious. Three bomb blasts that took place at the above three places were in the nature of revenge and it was conspiracy to wage war against the Government. Scores of people died and many were injured in three bomb blasts and looking to the entire nature of conspiracy, the accused did not :4: deserve the bail, at all. According to the learned P.P. the accused has also taken part for training to Terrorists for use of AK 56. The recovery of AK 56 at the instance of the accused, was a very strong circumstance showing his involvement. As regards the confession of the co-accused against the appellant - accused, the learned P.P. contended in the circumstances and looking to the nature of the offence, the same was required to be taken into consideration. He therefore contended that there were no reasons to interfere with the order of the Special Judge. He also drew our attention to the affidavit of Nagesh Shivdas Lohar, Sr. Inspector of Police D.C.B. C.I.D. Crime Branch, filed in this Criminal Appeal No. 56 of 2005 opposing the prayer for bail of the appellant - accused. 6. So far as confessional statement is concerned, it was a statement of one Anwar Ali Javed Ali Khan and Goolam Akbar Khotal. As per that statement, the present appellant - accused had arranged shelter at Pune for the Slain Pakistani Terrorist Faizalkhan and had attended meeting with him along with another accused Saquib Nachan and others, and, this clearly shows the association of :5: the accused with other terrorists. 7. Firstly, Mr. Agarwal, drew our attention to the provisions of Section 49 sub sections (6), (7), (8) and (9), and, relied upon the Judgment of the Supreme Court reported in AIR 2004 Supreme Court 456 AIR 2004 Supreme Court 456 AIR 2004 Supreme Court 456 People’s Union for Civil Liberties vs. Union of People’s Union for Civil Liberties vs. Union of People’s Union for Civil Liberties vs. Union of India. India. India. Our attention, in particular, was drawn to paragraph 67. The Supreme Court held that provisions of Section 49(7) have been added by way of exception and it means that after the expiry of one year after the detention of the accused for offences under POTA, the accused can be released on bail after hearing the Public Prosecutor under ordinary law without applying the rigour of Section 49(7) of POTA. It also means that the accused can approach the court for bail subject to conditions of Section 49(7) of POTA within a period of one year after the detention for offences under POTA. Then in paragraph 68, the Supreme Court has observed as under: "Proviso to Section 49(7) provides that the "Proviso to Section 49(7) provides that the "Proviso to Section 49(7) provides that the condition enumerated in sub-section (6) will condition enumerated in sub-section (6) will condition enumerated in sub-section (6) will apply after the expiry of one year. There apply after the expiry of one year. There apply after the expiry of one year. There appears to be an accidental omission or appears to be an accidental omission or appears to be an accidental omission or mistake of not including the word ’not’ mistake of not including the word ’not’ mistake of not including the word ’not’ after the word ’shall’ and before the word after the word ’shall’ and before the word after the word ’shall’ and before the word :6: ’apply’. Unless such a word is included, ’apply’. Unless such a word is included, ’apply’. Unless such a word is included, the provision will lead to an absurdity or the provision will lead to an absurdity or the provision will lead to an absurdity or become meaningless. Even otherwise, read become meaningless. Even otherwise, read become meaningless. Even otherwise, read appropriately, the meaning of the proviso to appropriately, the meaning of the proviso to appropriately, the meaning of the proviso to Section 49(7) is that an accused can resort Section 49(7) is that an accused can resort Section 49(7) is that an accused can resort to ordinary bail procedure under the Code to ordinary bail procedure under the Code to ordinary bail procedure under the Code after that period of one year. At the same after that period of one year. At the same after that period of one year. At the same time, proviso does not prevent such an time, proviso does not prevent such an time, proviso does not prevent such an accused to approach the Court for bail in accused to approach the Court for bail in accused to approach the Court for bail in accordance with the provisions of POTA under accordance with the provisions of POTA under accordance with the provisions of POTA under Section 49(6) and (7) thereof. This Section 49(6) and (7) thereof. This Section 49(6) and (7) thereof. This interpretation is not disputed by the interpretation is not disputed by the interpretation is not disputed by the learned Attorney General." learned Attorney General." learned Attorney General." Mr. Agarwal therefore contended that the accused is in custody as of now for nearly three years, and when he applied to the Special Court the period was more than one year, and, now, therefore, rigour of Section 49 could not come in the way of the appellant - accused in applying for bail, and, for the court in granting bail. He, therefore, contended that the ordinary procedure for bail has to be followed when the application is made in such circumstances i.e. after one year of detention. Learned P.P. could not show us anything in this regard nor could he show that the Supreme Court has taken any other view after the aforesaid judgment. It is therefore clear that the bail application ought to have been treated by the Special Court as an ordinary bail application or bail application where ordinary bail procedure, was applicable. :7: 8. Mr. Agarwal also relied upon a judgment of the Supreme Court reported in 2005 AIR SCW 2215 2005 AIR SCW 2215 2005 AIR SCW 2215 Ranjitsing Brahmajeetsing Sharma vs. State of Ranjitsing Brahmajeetsing Sharma vs. State of Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and another. Maharashtra and another. Maharashtra and another. It was the judgment under Maharashtra Control of Organised Crime Act (30 of 1999) where the provision similar to that of Section 9 of POTA Act was there regarding bail i.e. requirement of positive finding that the accused - appellant has not committed offence under the Act. While dealing with this aspect, the Supreme Court in paragraphs 46 and 49 held that presumption of innocence is a human right. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Sub Section (4) of Section 21 of MCOCA must be interpreted keeping in view the aforesaid salutory principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of sub-section (4) of Section 21 must be given a proper meaning. That sub section (b) of Section 21 is as under: "Where the Public Prosecutor opposes the "Where the Public Prosecutor opposes the "Where the Public Prosecutor opposes the application, the Court is satisfied that application, the Court is satisfied that application, the Court is satisfied that :8: there are reasonable grounds for believing there are reasonable grounds for believing there are reasonable grounds for believing that he is not guilty of such offence and that he is not guilty of such offence and that he is not guilty of such offence and that he is not likely to commit any offence that he is not likely to commit any offence that he is not likely to commit any offence while on bail." while on bail." while on bail." Then in paragraph 47 the court raised a question "Does this statute require that before a person is "Does this statute require that before a person is "Does this statute require that before a person is released on bail, the court, albeit prima facie, released on bail, the court, albeit prima facie, released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of must come to the conclusion that he is not guilty of must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to such offence? Is it necessary for the Court to such offence? Is it necessary for the Court to record such a finding? Would there be any machinery record such a finding? Would there be any machinery record such a finding? Would there be any machinery available to the Court to ascertain that once the available to the Court to ascertain that once the available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any accused is enlarged on bail, he would not commit any accused is enlarged on bail, he would not commit any offence whatsoever? offence whatsoever? offence whatsoever? Then in paragraph 49, the Supreme Court observed that: "We are further more "We are further more "We are further more of the opinion that the restrictions on the power of of the opinion that the restrictions on the power of of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too the Court to grant bail should not be pushed too the Court to grant bail should not be pushed too far. If the Court, having regard to the materials far. If the Court, having regard to the materials far. If the Court, having regard to the materials brought on record, is satisfied that in all brought on record, is satisfied that in all brought on record, is satisfied that in all probability he may not be ultimately convicted, an probability he may not be ultimately convicted, an probability he may not be ultimately convicted, an order granting bail may be passed." order granting bail may be passed." order granting bail may be passed." 9. Mr. Agarwal also relied upon the judgment of the Supreme Court reported in [2005 (30) AIC 18 [2005 (30) AIC 18 [2005 (30) AIC 18 (S.C.)] Vasanthi and State of A.P. (S.C.)] Vasanthi and State of A.P. (S.C.)] Vasanthi and State of A.P. That was a case under Andhra Pradesh Control of Organised Crimes Act, 2001. The appellant who was a lady was :9: arrested on 21.2.2004 under Section 120B read with certain other provisions of I.P.C. and also under Section 3 sub Section (4) of The Andhra Pradesh Control of Organised Crimes Act. She applied for bail before the Sessions Court, that was rejected. In the High Court also the bail application was rejected on the ground "it is not reasonably "it is not reasonably "it is not reasonably possible to conclude at this stage there are no possible to conclude at this stage there are no possible to conclude at this stage there are no reasonable grounds for believing that she is not reasonable grounds for believing that she is not reasonable grounds for believing that she is not guilty of the offence and that she is not likely to guilty of the offence and that she is not likely to guilty of the offence and that she is not likely to commit any offence while on bail." commit any offence while on bail." commit any offence while on bail." Thereafter the Appellant moved the Supreme Court. The Supreme Court while deciding the appeal or application taken into consideration its judgment in Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and another and relied upon paragraph 49 of the said judgment, which we have reproduced in our judgment, as above. There again after referring to paragraph 55 of Ranjitsing Brahmajeetsing Sharma’s judgment the Supreme court held that Section 21(4) does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act, and, as regards the second requirement it was laid down in Ranjitsing Sharma’s case. The case of Ranjeetsing :10: Sharma was extensively referred by the Supreme Court and relied upon, and, ultimately bail was granted to the appellant - lady. 10. Mr. Agarwal therefore contended that these three judgments relied upon by him, have diluted the rigour of the provisions of POTA, which are similar to those Acts which were referred to by the Supreme Court in their judgments, and, therefore now only thing is to be seen is whether there is any material for further detention of the accused by refusing his bail application, as has been done by the Special Court. 11. Regarding facts Mr. Agarwal contended that the evidence of confessional statement of the co accused, cannot be used against this accused, and, for that purpose, Mr. Agarwal pointed out the charge sheet in respect of three bomb blast cases which has been filed, but the accused along with all others have been discharged. 12. So far as it related to Bomb Blast cases at Ghatkopar and in this regard i.e. about use of confessional statement of one accused against the :11: other, Mr. Agarwal, relied upon the judgment of the Supreme Court reported in 2005 AIR SCW 4148 wherein the Supreme Court considered the aspect of use of confession under POTA against co accused, and then the Supreme Court concluded that confession of one accused cannot be used against the other accused under the provisions of POTA. Mr. Agarwal, therefore, contended that the attempt of the prosecution to harp upon the confessional statement of the co-accused has to be frustrated in view of this judgment of the Supreme Court. The ratio of the Supreme Court directly applies to the facts of the case, and, therefore, that piece of evidence so far as it relates to prayer for bail or that circumstance of a confessional statement of co accused cannot be taken into consideration, that has to be disregarded completely. 13. Regarding the role of this accused in the conspiracy, learned PP tried to contend as per the prosecution case that the accused is alleged to have given training to the other terrorists for the use of AK 56. Mr. Agarwal contended that not a single statement of any of the witnesses named in the charge sheet states so. Learned PP could not point :12: out that those who were allegedly trained in the camps held for that purpose have ever stated or anywhere stated that it was this accused who gave them training. Accused was never seen at those camps either by simply remaining present in the camps or for giving training to those persons. Therefore, that submission of the learned PP, is, required to be rejected. Thereafter, the learned PP contended that the accused had given shelter to a terrorists i.e. Pakistani National. Our attention was drawn by the learned PP which is a part of statement of accused Gulam Akbar Abdul Sattar Khotal, he is co-accused. Name of the present applicant - accused is Aatif Nasir Mulla. Now this co-accused Gulam states (on page 84 of the appeal book) that on one day Asif Mulla brought Atif - the present accused to his house and said that the meeting was arranged between Atif (present appellant) and Irfan. (Irfan is a Pakistani National). Then about this meeting Asif told to Sakib Nachin and Asif Mulla where to meet and the answer was we will meet at the same place where the meeting was there on the earlier day i.e. near the sugar-cane centre. Thereafter the accused Gulam who was giving statement, and Asif went to the house of :13: sister of Gulam to see the match. One and half hours thereafter Gulam went back to his house and learnt that the present appellant - accused had come to his house and had gone to offer Namaz. Therefore, Gulam and Asif Mulla went to Masjid but they did not see Atif - the present applicant - accused and then Gulam saw after the Namaz that Asif Mulla and Aatif were going on bicycle. 14. Then the learned PP drew our attention to the confessional statement of Anwar Ali - the co- accused. Our attention in this regard was invited to pages 55, 56 and 57, certain portions thereof are as under: "After few days in the month of Nov. 2002 "After few days in the month of Nov. 2002 "After few days in the month of Nov. 2002 as Holy month Ramazan was going on, one day as Holy month Ramazan was going on, one day as Holy month Ramazan was going on, one day Squib sent Atif Mulla to Pune with a chit Squib sent Atif Mulla to Pune with a chit Squib sent Atif Mulla to Pune with a chit which had a short message of making which had a short message of making which had a short message of making residential arrangements at my fathers flat residential arrangements at my fathers flat residential arrangements at my fathers flat situated at Kondwa Budruk Pune 48. My situated at Kondwa Budruk Pune 48. My situated at Kondwa Budruk Pune 48. My father Javed Ali Mumtaz Ali Khan purchased father Javed Ali Mumtaz Ali Khan purchased father Javed Ali Mumtaz Ali Khan purchased these flats after selling his agricultural these flats after selling his agricultural these flats after selling his agricultural plot at Sirur, Dkist : Pune. Flat No. 3 plot at Sirur, Dkist : Pune. Flat No. 3 plot at Sirur, Dkist : Pune. Flat No. 3 and 4 of 400 sq. ft. each on first floor and 4 of 400 sq. ft. each on first floor and 4 of 400 sq. ft. each on first floor were purchased from Abu Kalandar Sofi on were purchased from Abu Kalandar Sofi on were purchased from Abu Kalandar Sofi on agreement for Sale Basis by making part agreement for Sale Basis by making part agreement for Sale Basis by making part payment. It was nto a registered deed. By payment. It was nto a registered deed. By payment. It was nto a registered deed. By the time deed was over Abu Kalandar Sofi the time deed was over Abu Kalandar Sofi the time deed was over Abu Kalandar Sofi expired. My parents used to stay there till expired. My parents used to stay there till expired. My parents used to stay there till March 2002. Due to succession and other March 2002. Due to succession and other March 2002. Due to succession and other family problems of Sofi family transfer of family problems of Sofi family transfer of family problems of Sofi family transfer of title could not take place. And in March title could not take place. And in March title could not take place. And in March 2002 my father also expired. After his 2002 my father also expired. After his 2002 my father also expired. After his :14: death my mother shifted to my house at 1103, death my mother shifted to my house at 1103, death my mother shifted to my house at 1103, Old Modikhana, Pune 1. Since then my Old Modikhana, Pune 1. Since then my Old Modikhana, Pune 1. Since then my father’s flat was vacant. Saquib knew this father’s flat was vacant. Saquib knew this father’s flat was vacant. Saquib knew this and he asked for the keys to be handed over and he asked for the keys to be handed over and he asked for the keys to be handed over to Atif Nasir Mullah. to Atif Nasir Mullah. to Atif Nasir Mullah. Atif Nasir Mulla is known to me since Atif Nasir Mulla is known to me since Atif Nasir Mulla is known to me since 1987-88, when I visited Padga in one of 1987-88, when I visited Padga in one of 1987-88, when I visited Padga in one of SIMI’s program they had invited us for a SIMI’s program they had invited us for a SIMI’s program they had invited us for a lunch. He was every young that time. Then lunch. He was every young that time. Then lunch. He was every young that time. Then he took admission for MBA in Pune few years he took admission for MBA in Pune few years he took admission for MBA in Pune few years back. I happened to meet him occasionally back. I happened