* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL NO. 811 OF 2007 % Date of Decision: 13th April,2009 # MOHD.AFZAL KUMHAR & ANOTHER. ...Appellants ! Through: Ms. Kamini Jaiswal, Advocate for appellant Nos. 1 & 2 Mr. Maninder Singh and Mr. Sanjeev Kumar, Advocates for other appellants versus $ STATE …Respondent ^ Through: Mr. Sunil Sharma, APP for State . WITH + CRIMINAL APPEAL NO. 89 OF 2008 # BILAL AHMED MIR ...Appellant ! Through: Mr. Maninder Singh and Mr. Sanjeev Kumar, Advocates versus $ STATE …Respondent ^ Through: Mr.M.N. Dudeja, APP AND + CRIMINAL APPEAL NO. 90 OF 2008 # ANSAR AHMED DAR ...Appellant Crl. A. Nos. 811/2007, 89/2008 and 90/2008 2 ! Through: Mr. Maninder Singh and Mr. Sanjeev Kumar, Advocates versus $ STATE …Respondent ^ Through: Mr.M.N. Dudeja, APP CORAM: * HON'BLE MR. JUSTICE B.N. CHATURVEDI HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether Reporters of local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the digest? JUDGMENT P.K.BHASIN, J: 13th December, 2001 witnessed a terrorist attack on the Indian Parliament. The objective of the terrorists, who belonged to a militant organization called ‗JKLF‘, behind that attack was to capture the Parliament House. The brave security personnel posted there, however, had not only succeeded in saving the Parliament House from being captured and the Members of Parliament, who were inside, from being killed or held as hostages but also managed to kill all the terrorists who had launched the attack there. During that operation some of the security personnel also Crl. A. Nos. 811/2007, 89/2008 and 90/2008 3 lost their lives while fighting for the honour of the country. The terrorists who have been causing havoc in different parts of the country could not take their defeat lying down and decided to commit more panic and fear in the Capital city by causing loss of human lives and mass devastation of properties by exploding bombs on the occasion of Republic Day which was to be celebrated on 26th January,2002. However, this time the intelligence agencies could catch hold of the terrorists belonging to another militant organization called Lashkar-e-Toiba(LeT) who had come from Kashmir for committing acts of terrorism in Delhi before they could convert their nefarious design into reality. On being apprehended by the police alongwith huge quantity of RDX and other explosive material and lacs of rupees in cash meant for being utilized for the said purpose they were prosecuted and tried for various offences and finally were convicted and now these appeals have been filed by four accused persons who have been convicted by the Designated Court under the Prevention of Terrorism Act, 2002(POTA) vide judgment dated 30th October, 2007 for their having committed various offences including that of hatching a conspiracy to wage war against the Government of India. These Crl. A. Nos. 811/2007, 89/2008 and 90/2008 4 four accused persons were charge-sheeted alongwith three other persons out of whom one Mehboob Karim Merchant was discharged by the Designated Court while in respect of accused Rajesh Bhai Prajapati the Designated Judge passed an order on 29-04-2005, when the case was at the stage of final arguments, for deleting his name from the array of accused persons in view of the decision of the POTA Review Committee exonerating him of the offence under POTA for which only he was being tried. In respect of accused Dilip Tribhuvan Das Barot, who was also being tried for an offence under POTA only, the Designated Court passed an order of his acquittal on 31-08-2005 since he had also been exonerated in the meanwhile by the POTA Review Committee. Thereafter, the trial of the four appellants continued and finally ended in their conviction. Hence, these appeals came to be filed and since the same arise out of a common judgment of the trial Court they are being disposed of by us by a common judgment. 2. The foundational facts of the prosecution case are described in the charges framed by the trial Court against the six accused and so at the outset we deem it appropriate to re-produce those Crl. A. Nos. 811/2007, 89/2008 and 90/2008 5 charges. Against accused-appellant Mohd. Afzal Kumhar(appellant no.1 in Crl.A. No. 811 of 2007) the following charges were framed:- ―1. That on 14.1.02, at about 8 p.m., near Kotla Mubarakpur, Karan Hostel, H.No. 1804/2, Room No. 3, Parsadi Gali, were found in possession of 2.280 kgs. of RDX/PETN capable of mass destruction, two live electronic detonators and Hawala amount of Rs. 5 lakhs, for the purpose of terrorist activities and thereby you committed an offence u/s 4(b) POTA 2002. 2. Secondly, that you disclosed in your confessional statement recorded u/s 32 POTA being member of Lashkar-e- Tayyaba(LeT), a militant organization declared as such under POTA and listed in schedule and having come to Delhi to fix explosives in Republic Day parade and you were found in possession of 2.280 kgs. RDX/PETN and two electronic detonators capable of causing mass destruction and thereby you committed offence u/s 3(b) of POTA and sec. 3(5) of POTA and sec. 20 of POTA. 3. Thirdly that in the company of your co-accused, you received hawala money of Rs.28.25 lakhs from accused No. 5 at the instructions of accused No. 6, who had received further instructions from terrorist organizations, knowing fully well that this amount be utilized for the purposes of terrorism and thereby you committed offence u/s 22(3)(5) of POTA. 4. Fourthly, that by possessing the aforesaid quantity of RDX/PETN without any legal authority and licence, and maliciously capable of endangering life and causing serious injuries to persons and property in India and thereby you committed an offence u/s 4(b) and Sec.5 of Explosives Substance Act, within the cognizance of this court.‖ Accused-appellant Adil Nazir Keen (who is appellant no.2 in Crl.A. No. 811 of 2007) wa also similarly charged as under:- ―1. That on 14.1.02 at about 8 p.m. near Kotla Mubarakpur, Karan Hostel H.No. 1804/2, Room No. 3, Parsadi Gali, were Crl. A. Nos. 811/2007, 89/2008 and 90/2008 6 found in possession of 2 kgs. RDX/PETN capable of mass destruction, two live electronic detonators and hawala amount of Rs. 5 lakhs, for the purpose of terrorist activities and thereby you committed an offence u/s 4(b) POTA 2002. 2. Secondly, that you disclosed in your confessional statement recorded u/s 32 POTA being member of Lashkar-e- Tayyaba (LeT), a militant organization declared as such under POTA and listed in schedule and having come to Delhi to fix explosives in Republic Day Parade and you were found in possession of 2 kgs. RDX/PETN and two electronic detonators, capable of causing mass destruction and thereby you committed offence u/s 3(b) of POTA and Sec. 3(5) and Sec. 20 of POTA. 3. Thirdly, that in the company of your co-accused, you received hawala money of Rs. 28.25 lakhs from accused No. 5 at the instructions of accused No. 6, who had received further instructions from terrorist organizations, knowing fully well that this amount shall be utilized for the purposes of terrorism and thereby you committed offence u/s 22(3)(5) of POTA. 4. Fourthly, that by possessing the aforesaid quantity of RDX/PETN, without any legal authority and licence and maliciously, capable of endangering life and causing serious injuries to persons and property in India and thereby you committed an offence u/s 4(b) and Sec. 5 of Explosive Substances Act, within the cognizance of this court.‖ Against the accused-appellants Bilal Ahmed Mir(appellant in Crl.A.No. 89 of 2008) and Ansar Ahmed Dar(appellant in Crl. A.No. 90 of 2008) the following common charges were framed:- ―1. That on 14.1.02, at about 8 p.m., near Kotla Mubarakpur, from inside room No. 3 of Karan Hostel, both of you were found in possession of 3.9 kgs. of RDX/PETN, capable of mass destruction and Rs.24.9 lakhs of hawala money and thereby you both committed an offence punishable u/s 4(b) of POTA. 2. Secondly that you both were the members of Lashkare-e- Crl. A. Nos. 811/2007, 89/2008 and 90/2008 7 Tayyaba(LeT) a militant organization declared as such under POTA and listed in schedule and were in possession of explosive substantial of mass destruction and thereby you both committed offence u/s 3(b), 3(5) and 20 of POTA, within the cognizance of this court. 3. And thirdly, by possessing the aforesaid quantity of RDX/PETN, without any legal authority and licence and maliciously, capable of endangering life and causing serious injury to persons and property in India and thereby you both committed offence u/s 4(b) and Sec.5 of Explosives Substances Act, within the cognizance of this Court.‖ Then, the following common charge was framed against accused-appellants Mohd. Afzal Kumhar, Ansar Ahmad Dar, Bilal Ahmed Mir and Adil Nazir Keen:- ―That you all collected 8.18 kgs. RDX/PETN, capable of mass destruction and 34.9 lakhs hawala money and conspired to overawe by means of criminal force, the Govt. of India and thereby you all committed offence u/s 121-A IPC and u/s 122 IPC, within the cognizance of this Court.‖ Against accused Dilip Tribhuvandas Barot @ Dalip Bhai and Rajesh Khoda Bhai Prajapati @ Raju Bhai, in respect whom the proceedings came to be terminated in the midst of the trial because of the decision of the POTA Review Committee, the following charge had been framed:- ―That you both knowing fully well that accused Mohd. Kumhar, Ansar Ahmed Dar, Bilal Ahmed Mir and Adil Nazir Keen Crl. A. Nos. 811/2007, 89/2008 and 90/2008 8 were terrorists and members of Lashkar-e-Tayyaba(LeT), a militant organization, declared as such and listed under POTA, provided them hawala amount of Rs.28.25 lakhs, having reasons to believe that it would be used for the purpose of terrorism and thereby you both committed offences u/s 22(2)(5) POTA, within the cognizance of this court.‖ 3. From these charges framed against the accused persons and a glance through the charge-sheet and the accompanying material submitted in Court after investigation it becomes clear that the prosecution case is that sometime in the last week of December 2001, some information was received by the Indian Intelligence Agencies that some militants belonging to a banned militant organization by the name of Lashkar-e-Toiba(LeT) had come to Delhi and were collecting huge quantity of explosives for being used to spread terror in the capital city of Delhi. Thereafter on 14/01/02, a specific input was received by the Intelligence Agencies that some Kashmiri boys having links with LeT were staying in a room in Karan Hostel in Kotla Mubarakpur and had collected explosive material for spreading terror in Delhi by exploding bombs during Republic Day celebrations. On receipt of that information a raid team under the leadership of PW-19 Inspector Mohan Chand Sharma was formed on 14/1/02 itself Crl. A. Nos. 811/2007, 89/2008 and 90/2008 9 and at about 1.15 p.m. the raid team members left for Karan Hostel and reached there at 1.30 p.m. On secret enquiries made in that area it was confirmed that three Kashmiri boys had come few days ago were staying with one Bilal Ahmad Mir in room no. 3 in that Hostel. It was also informed that at that time only Bilal Ahmad Mir and one other boy were present in the room and their other two companions had gone out somewhere. Thereafter, the raid team leader decided to wait for the other two boys also to reach there before starting their raid operation. In the meanwhile the owner of Karan Hostel PW-15 Ram Kumar had also been contacted and he also confirmed that one Bilal Ahmad Mir with three others was staying in his Hostel. PW-15 Ram Kumar was also joined in the raid operation as an independent witness since he knew the boys. At about 8 p.m. two boys were seen coming towards Karan Hostel and they were identified by Ram Kumar as the boys who were staying with Bilal. The police then apprehended them at the hostel gate itself. Their names were found to be Mohd. Afzal Kumhar and Adil Nazir Keen. At that time both of them were carrying separate bags with them. Thereafter, the raid team went to room no.3 of the Karan Hostel where the bag Crl. A. Nos. 811/2007, 89/2008 and 90/2008 10 which in the hand of Mohd. Afzal Kumhar was checked and was found containing a polythene bag on which ‗Mission Kashmir‘ was written and in that polythene bag 2.280 Kgs. of RDX and Indian currency to the tune of Rs.5 lakhs and two electronic detonators with wires were recovered. The bag in the hand of Adil Nazir Keen was also checked and was found containing RDX weighing 2 Kgs. and rupees five lakhs in cash and two electronic detonators with wires. 4. In room no.3 accused-appellants Bilal Ahmed Mir and Ansar Ahmed Dar were found present when the raid team had gone there with Mohd. Afzal Kumhar and Adil Nazir Keen. They were also apprehended and interrogated and it is also the case of the prosecution that on being informed by accused Bilal Ahmed Mir and Ansar Ahmed Dar during their interrogation the police officials recovered two bags lying under the beds in that room no. 3 and in one of those bags cash amount of Rs. 14 lakhs and explosive material weighing 3.900 kgs. were found. In the other bag cash amount of 10.90 lakhs was found. From the explosive material recovered from the possession of accused Mohd. Afzal Kumhar and Crl. A. Nos. 811/2007, 89/2008 and 90/2008 11 Adil Nazir Keen two separate samples of 10 gms. each of that explosive material were taken and sealed and marked as S-1 & 2 and four detonators with wires were also sealed in two separate parcels marked as D-1 & 2 for being sent to Central Forensic Scientific Laboratory(CFSL). Seizure Memo Ex.PW-8/A in respect of the recoveries from these two accused was prepared at the spot. The remaining quantity of the explosive material was also sealed in separate parcels. From the explosive material recovered at the instance of Bilal Ahmed Mir and Ansar Ahmed Dar also separate packet of 10 gms. was prepared and sealed as sample and marked as S-3 for being sent to CFSL for confirmation that the same was explosive material. Rest of the material was also separately sealed. The recovered currency notes, totaling Rs.34.90 lakhs were also taken into police possession. From that room one mobile phone was also seized. In view of the said recoveries of huge quantity of explosive material and cash from the possession of these four accused persons a case under Sections 121/121- A/122/123 IPC and under Sections 4/5 of the Explosive Substances Act, 1908 was registered at Kotla Mubarakpur police station vide FIR No.18/02. On 15/01/02 the offences punishable Crl. A. Nos. 811/2007, 89/2008 and 90/2008 12 under Sections 3/4/5/21/22 of the Prevention of Terrorism(Second) Ordinance, 2001(POTO) were also invoked and the investigation thereafter was taken over by an Assistant Commissioner of Police, PW-18 Rajbir Singh. 5. Pursuant to the information given by accused Mohd. Afzal Kumhar the police arrested one Dilip Tribhuvandas Barot @ Dilip Bhai, who was allegedly a hawala operator, and then pursuant to his disclosure two more hawala operators, Rajesh Khoda Bhai Prajapati @ Raju Bhai and Mehboob Karim Merchant were also arrested. As per the prosecution case all these three persons used to provide money to the terrorists for terrorist activities through, as is commonly known in the criminal world, hawala channels. According to the further prosecution case, all these seven accused persons were involved in a criminal conspiracy to commit various offences including the offence of waging war against the Government of India. 6. During the course of investigation accused Mohd. Afzal Kumhar and Abdul Nazir Keen had shown their willingness to the Crl. A. Nos. 811/2007, 89/2008 and 90/2008 13 investigating officer ACP Rajbir Singh to make confessional statements and accordingly their confessions were recorded by PW-1 Shri Balaji Srivastava, Deputy Commissioner of Police, Spl. Branch & Spl. Cell, under Section 32 of the POTO on 24-01-2002. Accused Bilal Ahmed and Ansar Ahmed Dar had also at one time shown their willingness to make confessional statements but when produced before the DCP they changed their minds and did not make any confessional statements. In the confessional statements made by the other two accused they admitted, inter-alia, that they had come to Delhi from Kashmir on 30/12/01 to create panic in Delhi on the occasion of Republic Day celebrations by exploding bombs on the route of Republic Day Parade for which purpose they had collected RDX etc. On 25/01/02 both these accused were produced before PW-5 Shri V.K.Maheshwari, Addl.Chief Metropolitan Magistrate, New Delhi as required under Section 32(4) & (5) of POTO and before him they admitted having made the statements before the DCP voluntarily and without any coercion from any quarter. The ACMM then recorded the statements of accused Mohd. Afzal Kumhar and Adil Nazir Keen to that effect(Ex. PW-5/B and Ex.PW-5/C respectively). Crl. A. Nos. 811/2007, 89/2008 and 90/2008 14 7. It is also the prosecution case that the samples of the explosive material recovered on 14/01/02 from accused Mohd. Afzal Kumhar and Adil Nazir Keen was sent to CFSL on 25/01/02 and when examined at CFSL, New Delhi it was confirmed the presence in the brown coloured putty like material of ―RDX‖, ―PETN‖ and ―AMMONIUM NITRATE‖ and the four detonators which were recovered from the possession of accused persons were also examined by the scientists at the CFSL and the result of the examination was that the same were ‗live‘ ones and the same with the said explosive material could form the components of ‗Improvised Explosive Device‘(IED) and so were ‗explosive substance‘ as defined in the Explosive Substances Act, 1908. The other sample of explosive material recovered from room no.3 of Karan Hostel at the instance of accused Bilal Ahmed Mir and Ansar Ahmed Dar was also examined at CFSL and the opinion of the expert was that the Physico-Chemical examination confirmed the presence of Potassium Chlorate which could also form a component of Improvised Explosive Device. During the investigation it was found that the Motorola mobile phone, Ex.P-22, Crl. A. Nos. 811/2007, 89/2008 and 90/2008 15 which was also recovered from room no.3 of Karan Hostel on 14/01/02 had been purchased by accused Adil Nazir Keen on 06/01/02. Its number was 98113-36055. 8. On the completion of investigation, requisite sanctions under the Code of Criminal Procedure, Explosive Substances Act,1908 and POTO were obtained by the investigating agency and then charge-sheet was submitted in the Designated Court on 28/03/02 against seven accused persons. One accused was discharged at the charge stage while the remaining six accused were charged on 20/04/02 for the commission of various offences as noticed already. The accused had pleaded not guilty and claimed to be tried. The prosecution then examined nineteen witnesses to establish its case and during their evidence several documents were also exhibited. The main defence plea of accused Mohd. Afzal Kumhar, Adil Nazir Keen, Ansar Ahmed Dar and Bilal Ahmed Mir, who are now the appellants before us, was that they had, in fact, been lifted by the police from Karan Hostel on 2nd January, 2002 and were thereafter kept in illegal confinement till 15th January,2002 and then booked for the present case and the so- Crl. A. Nos. 811/2007, 89/2008 and 90/2008 16 called recoveries were planted ones. Accused Bilal Ahmed Mir had claimed that he was living in Karan Hostel from December, 1998 till June, 2001 and then he vacated the hostel premises as the same was demolished for reconstruction and after its reconstruction he again started living there from December, 2001. He further stated that his co-accused Ansar Ahmad Dar had been visiting him on earlier occasions also while his other two co- accused persons had come to him for the first time on 31st December, 2001. It was also his stand that his family itself was victim of terrorists in Kashmir inasmuch as his brother and his other relative were killed by the terrorists and then he himself had shifted to Delhi from Kashmir. Accused Mohd. Kumhar had claimed in his statement under Section 313 Cr.P.C. that he was working as a Jr. Engineer in the Rural Development Department, J&K since May, 1999 and had further that he had come to Delhi on 31st December, 2001 for some business purposes relating to co- accused Adil and Ansar and had stayed with co-accused Bilal who was known to them as all of them belonged to village Anantnag. He further claimed that on 02-01-2002 he along with his other three co-accused persons was arrested by some policemen in plain Crl. A. Nos. 811/2007, 89/2008 and 90/2008 17 clothes at about 10-10.30 p.m. and were kept in the special cell. This accused also claimed that his grandfather was also killed by the militants in Kashmir since was having affiliation with National Conference. Accused Ansar Ahmad Dar claimed in his statement under Section 313 Cr.P.C. that his family had links with politicians and his Phoofa was Deputy Home Minister in Deve Gowda Government and for that reason the terrorists had killed his(Ansar‘s) father his another phoofa was abducted by terrorists and had demanded ransom of Rs.five lacs. He also claimed that he himself used to visit Delhi in connection with his business of spices and further that his co-accused Adil and were also doing business in partnership and this time both of them had also accompanied him to Delhi. He further claimed that he was kept in Special Cell from 02-01-2002 to 15-01-2002. Accused Adil Nazir Keen also claimed in his statement under Section 313 Cr.P.C. that he was a frequent visitor to Delhi in connection with his business and he stated that he had come to Delhi on 31-12-2001 and had stayed with co-accused Bilal in his hostel room along with co- accused and Ansar who had also come to Delhi along with him. He also claimed that he along with his co-accused persons were Crl. A. Nos. 811/2007, 89/2008 and 90/2008 18 apprehended on 02-01-2002 from the room of Bilal in Karan Hostel at about 10.30 p.m. and since then they remained in police custody. He also claimed that his family was also victim of the terrorists in Kashmir to which place they belonged. The pleas taken by accused Dilip Tribhuvandas and Rajesh Bhai Prajapati are, however, now not of any relevance in view of the orders passed by the Designated Judge in their favour because of their exoneration by the POTA Review Committee. The accused persons had also examined fourteen witnesses in defence, some of whom had been examined on behalf of accused Rajesh Bhai Prajapati and Dilip Tribhuvandas while the remaining were examined on behalf of the accused Mohd. Kumhar, Adil Nazir Keen, Bilal Ahmed Mir and Ansar Ahmed Dar in support of their common defence that they had been taken into custody by the police on 02-01-2002 and not on 14-01-2002 as was being claimed by the police. 9. The learned trial Judge after analyzing the evidence produced from both the sides came to the conclusion that the prosecution had failed to establish that the accused persons were members of any banned terrorist organization and further that the confessions Crl. A. Nos. 811/2007, 89/2008 and 90/2008 19 of accused Mohd. Afzal and Adil Nazir recorded by PW-1 DCP Balaji Srivastava under Section 32 of POTO could not be said to have been made by these accused voluntarily. But at the same time accepting the prosecution evidence regarding recovery of RDX and huge amount of cash from the accused-appellants on 14/01/02 the learned trial Court also observed in the impugned judgment that ―…….At the same merely for the reason that their confessional statements are vitiated on account of non compliance of the provisions of Sec.32 POTA it cannot be said that it affects in any manner the recovery of incriminating material effected from the possession