IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 298 OF 2005 APPEAL NO. 298 OF 2005 APPEAL NO. 298 OF 2005 Adnan Bilal Mulla, age 29 years ] occupation business, resident of] Borivali, post Padgha, Taluka; ] Bhivandi, District Thane. ] (present in judicial custody ] Appellant/ original at Thane Central Prison,Thane.) ] accused no.15. Versus Versus Versus The State through D.C.B.,C.I.D. ] Police Head Quarters, Crawford ] Respondent/orig. complainant. Market, Mumbai ] ------- Smt. Nitya Ramkrishnan, Senior Counsel, instructed by Shri Mubin H. Solkar, Advocate for appellant-accused. Ms. P.H. Kantharia, A.P.P. for the Respondent-State. ------- Coram Coram Coram : N. V. Dabholkar : N. V. Dabholkar : N. V. Dabholkar and and and Smt. Smt. Smt. V.K. Tahilramani, JJ V.K. Tahilramani, JJ V.K. Tahilramani, JJ Reserved Reserved Reserved on: 16/02/2006 on: 16/02/2006 on: 16/02/2006 Pronounced Pronounced Pronounced on: 24/02/2006 on: 24/02/2006 on: 24/02/2006 Judgment Judgment Judgment (Per : Dabholkar, J.) (Per : Dabholkar, J.) (Per : Dabholkar, J.) 1. This is an appeal under Section 34 of the Prevention of Terrorism Act, 2002 (henceforth, "POTA" for short), challenging the order dated 18.1.2005, delivered by Special Judge under POTA, Mumbai, in bail application No.14 of 2004, arising out of POTA Case No. 2 of 2003, by which learned Judge rejected bail plea of the appellant-accused. [2] . Although by virtue of section 1(6), POTA is deemed to have come into force on 24th day of October 2001 and was to remain in force for the period of three years from the date of its commencement, i.e. upto 23.10.2004, in view of clause (b) to said sub-section (6) of Section 1, which reads; " 1(6).......................................... but its expiry under the operation of this sub-section shall not affect:- (a)............................................. (b) any right, privilege, application or liability acquired, accrued, or incurred under this Act, or...", learned APP has not challenged maintainability of the appeal under Section 34 of the POTA. This is because, the appellant-accused was arrested while the Act was still in force and, therefore, right to seek bail in the light of section 49 and right to appeal, conferred by Section 34 against any order, not being interlocutory order of special court, to High Court, had accrued in favour of the appellant, during the period when the Act [3] was still in force. Since sub-section (2) of section 34 requires every appeal under sub-section (1) of the said section, to be heard by a bench of two judges of the High Court, present appeal has come up for hearing before us. 2. Having gone through the impugned order, which began with the submissions of two sides, without giving details of the prosecution story, on the basis of which crimes were registered and a charge-sheet was filed before the Special Court, which is registered as POTA Case No. 2 of 2003, we have obtained prosecution story from the learned APP, which she has submitted in writing on 16.2.2006 under the caption "submissions on behalf of the Prosecution". We have taken these submissions on record and marked as Exhibit A for the purpose of identification. . According to the prosecution, all the accused in this case, those who are arrested, those who are wanted and those who are deceased, hatched a conspiracy to wage war against the State and for that purpose, conspired to commit terrorist acts, such as, bomb blasts and assassinations of prominent Hindu leaders, in places like Mumbai, Pune and other prominent places. In [4] prosecution of the object of conspiracy, acts of preparing bombs and exploding those, were committed by some of the accused persons, in this case. According to prosecution, materials, such as, sophisticated fire arms, i.e. AK-47 and AK-56 rifles, pistols, explosives and hazardous chemicals, were collected. There were also arrangements for training Muslim youths in operating those sophisticated fire arms and also handling, dismantling and reassembling those, in preparing and exploding bombs. . According to the prosecution, the present appellant is one of the accused involved in three bomb blast cases. The first one took place on 6.12.2002 at 16.50 hours at Mumbai Central Railway Station in McDonald’s Restaurant situated in the main Railway station. In this bomb blast, 25 persons were injured and public property to the tune of Rs.28.00 lacks was damaged. CR. No. 124 of 2002 was registered by Bombay Central Railway Police Station, regarding this incident and eight accused persons were arrested in connection with the same. Subsequently, investigation was transferred to DCB, CID, Mumbai, vide CR No.59 of 2003. . Second bomb blast of the series was caused on [5] 27.1.2003 at about 20.10 hours in vegetable market at Vile Parle (East). The bomb was kept in a bag hung to a bicycle parked in the vegetable market. As a result of this bomb blast, one woman died and 33 persons were injured. In addition, public property worth Rs.2.00 lacks was damaged. CR. No. 38 of 2003 was registered with Vile Parle Police Station, which was subsequently transferred to DCB, CID, as CR. No.9 of 2003. Eleven persons were arrested in connection with this incident. . Third bomb blast was caused at Mulund in a Karjat bound Central Railway suburban local train, on 13.3.2003 at 19.56 hours. Eleven commuters died on the spot and 86 were injured, simultaneously causing damage to the public property to the tune of five lacks. Kurla Railway Police Station registered an offence vide CR. No. 52 of 2003 and 16 persons were arrested. This matter was also subsequently transferred to DCB, CID, Mumbai, as CR.No.21 of 2003. It is informed that now, investigation of all three matters is entrusted to a common officer of the rank of ACP. . Since the prosecution believed that all three bomb blasts were outcome of one conspiracy, with common object to create fear and terror in the minds of common [6] people and society at large and thus achieve common goal, one charge-sheet was filed, which is registered as POTA Case No.2 of 2003 and totally, 16 arrested persons were produced before the court. It is further added that explosive substance used in two bomb blasts at Vile Parle and Mulund was ammonium nitrate, and gun powder was used at Bombay Central. 3. On reference to the impugned order, it appears that apart from the grounds for release on bail, the contentions were raised regarding illegal detention and non-observance of the guide lines laid down by the Apex Court in the matters of D.K. Basu v/s State of West D.K. Basu v/s State of West D.K. Basu v/s State of West Bengal, Bengal, Bengal, AIR 1997 S.C. 610 AIR 1997 S.C. 610 AIR 1997 S.C. 610 and other judicial pronouncemtns. The learned Special Judge observed that the contentions regarding illegal detention by non observance of the guidelines laid down by the Honourable Apex Court, could be brought to the notice of the court during the course of the trial and those contentions could be considered with appropriate material for the same. . Special Judge observed that although statements recorded under Section 27 of the Indian Evidence Act, were not admissible against persons other than makers of [7] the same, evidenciary value of the discovery, pursuant to the discovery statement, cannot be brushed aside. Likelihood of delay in disposal of the case, was held as ground not available for seeking release on bail, by observing that the appellant could insist for expeditious trial. Observing that the material collected during investigation indicated involvement of the appellant in an offence punishable with imprisonment for life, because of grave nature of the accusations, since it was alleged that the appellant had carried AK-47 rifles and he was also instrumental as driver of the jeep for the purpose, of transporting certain persons to Mahuli hill, near Padgha, learned Special Judge held that apprehension of long term imprisonment may impel appellant to avoid the trial or to flee from justice. Learned Special Judge also felt that, probability of appellant tampering with the evidence, if released on bail; could not be ruled out, because all the witnesses are residents of village Padgha. The learned Judge has also taken a note of the fact that appellant-accused is closely related to main accused, who is said to be mastermind of the entire conspiracy. Finding it that grant of bail to the appellant-accused would be risky, bail plea of the appellant is rejected. [8] 4. Heard Ms. Nitya Ramkrishna, learned Counsel for the appellant and Ms. Kantharia, learned APP for the Respondent. . Referring to Section 49 of POTA, regarding modified application of certain provisions of the Code of Criminal Procedure, 1973, learned Counsel for the appellant submitted that more than one year has lapsed since arrest of the appellant (which fact is not disputed by learned APP) and hence, limitations prescribed by sub-sections (6) and (7) of said Section 49, are not applicable to the present case. For the purpose of supporting the proposition, she has placed reliance upon ratio laid down by Hon’ble the Supreme Court in the matter of Peoples Union for Civil Liberties Peoples Union for Civil Liberties Peoples Union for Civil Liberties vs. vs. vs. Union of India, 2004 (9) S.C.C. 580 Union of India, 2004 (9) S.C.C. 580 Union of India, 2004 (9) S.C.C. 580 and more particularly the contents in paragraphs 68 to 70, which reads as follows;- " 68. Proviso to Section 49(7) reads as under: Proviso to Section 49(7) reads as under: Proviso to Section 49(7) reads as under: " Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of sub-section (6) of this section shall [9] apply. " 69. It is contended that this proviso to Section 49(7) of POTA is read by some of the courts as a restriction on exercise of power for grant of bail under Section 49(6) of POTA and such power could be exercised only after the expiry of the period of one year from the date of detention of the accused for offences under POTA. If the intention of the legislature is that an application for bail cannot be made prior to expiry of one year after detention for offences under POTA, it would have been clearly spelt out in that manner in Section 49(6) itself. Sections 49(6) and 49(7) of POTA have to be read together and the combined reading of these two sections is to the effect that the Public Prosecutor has to be given an opportunity of being heard before releasing the accused on bail and if he opposes the application, the court will have to be satisfied that there are grounds for believing that he is not guilty of having committed such offence. It is by way of exception to Section 49(7) that the proviso is added which means that after the expiry of one [10] 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 offence under POTA. 70. Proviso to Section 49(7) provides that the condition enumerated in sub-section (6) will apply after the expiry of one year. There appears to be an accidental omission or mistake of not including the word "not" after the word "shall" and before the word "apply". Unless such a word is included, the provision will lead to an absurdity or become meaningless. Even otherwise, read appropriately, the meaning of the provision to Section 49(7) is that an accused can resort to ordinary bail procedure under the Code after that period of one year. At the same time, the proviso does not prevent such an accused to approach the court for bail in accordance with the provisions of POTA under [11] Sections 49(6) and (7) thereof. This interpretation is not disputed by the learned Attorney General. Taking into account the complexities of terrorism-related offences and intention of Parliament in enacting a special law for its prevention, we do not think that the additional conditions regarding bail under POTA are unreasonable. We uphold the validity of Section 49." (emphasis added) (emphasis added) (emphasis added) . Thus, according to the learned Counsel, the restrictions provided by modified application of the provisions of the Cr. P.C., and more particularly that of bail, after expiry of one year since initial arrest, the appellant-accused is not required to satisfy parameters, as prescribed by sub-section (7) of Section 49 of POTA i.e. "the Court is satisfied that there are grounds for believing that he is not guilty of committing such offence." In spite of this, it was submitted that the appeal would still be argued, as if the restrictions are applicable. . While arguing on merits of bail plea, learned counsel has placed reliance on the observations of the Supreme Court in the matter of Ranjitsing Brahmajeetsing [12] Sharma v. State of Maharashtra, 2005, AIR SCW 2215, as contained in paragraph 49 and the portion relied upon by learned counsel, reads as follows;- " We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either [13] directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea." (emphasis added) (emphasis added) (emphasis added) While making the observations as above, the Hon’ble Apex Court was dealing with section 21(4), regarding restrictions on bail, as contained in Maharashtra Control of Organised Crime Act ("MCOCA" for short). Learned Counsel did not fail to point out that these observations in the matter of Ranjitsing (supra), were referred with approval by the Apex Court in the matter of Vasanthi v. State of A.P., (2005) 5 S.C.C 132. . The learned Counsel has laid emphasis on the portion of the observations underlined in the quotation hereinabove. She submitted that while considering application for bail, this court will have to consider the question, as to whether, upon considering all the material placed before court, the prosecution demonstrates that the applicant possessed requisite mens rea. It was submitted that the appellant himself has not made any confession under Section 32 of POTA and confessions of co-accused recorded under the said [14] provisions of POTA, are not admissible as against the appellant. Thus, confessional statement of co-accused under Section 32 of POTA, is inadmissible piece of evidence against present appellant. This court will not be in a position to take said material into account for arriving at a conclusion that the appellant possessed requisite mens rea. . The observations of the Hon’ble Supreme Court in the matter of State (N.C.T. of Delhi) v/s Navjot Sandhu, 2005 AIR SCW 4148, as contained in paragraph 10, were relied upon by the learned Counsel for supporting such an argument. While dealing with interpretation of Section 32(1) of POTA, which makes confession made to a high ranking police officer, admissible in the trial, of such person for offence under the said Act, shall also be admissible as against co-accused, the Supreme Court observed thus; " We are, therefore, of the view that having regard to all these weighty considerations, the confession of a co-accused ought not be brought within the sweep of Section 32(1). As a corollary, it follows that the confession of the 1st and 2nd accused in this case recorded by the [15] police officer under Section 32(1), are of no avail against the co-accused or against each other. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Indian Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co-accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a confession which qualifies for proof in accordance with the provisions of Evidence Act, then of course, the said confession could be considered against the co-accused facing trial under POTA. But, this is not the case here." (emphasis added) (emphasis added) (emphasis added) . Thus, according to learned Counsel, in case, the prosecution has any inclination to rely upon confession of co-accused, as recorded under Section 32(1) of POTA, the same is not admissible against present appellant. . Since there are statements of witnesses recorded, either under Section 161, or under Section 164 [16] (before a Magistrate), learned Counsel for the appellant has taken us through the statement of one such witness recorded on 21.10.2003. She tried to demonstrate that the witnesses deposing against the appellant herein, are the persons to whom the appellant had driven to Mahuli hills and thus they are the persons, who had participated in the alleged training. According to learned Counsel, in the light of section 319 of the Code of Criminal Procedure, these witnesses will have to be impleaded as co-accused by the Special Court and thereafter their statements will not carry character as deposition of a witness. Thus, according to learned Counsel, the statements of other witnesses would also be material, inadmissible at the trial. She has placed reliance on observations of the Hon’ble Apex Court in the matter of Swill Ltd. vs. State of Delhi and another, (2001) 6 S.C.C. 670, in order to strengthen her argument that the special court will have no option but to implead these witnesses as co-accused. In fact, the portion relied upon by her from paragraph 6 of the reported judgment, are the observations of the Supreme Court in the matter of Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, which read as follows; " In our opinion, once cognizance has been taken [17] by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is a part of the proceeding initiated by his taking cognizance of an offence." . According to learned Counsel, even if the material that is inadmissible is taken into consideration, that shows that on one occasion, the appellant carried a box, which is said to contain AK-47 rifle, and on another occasion, he is said to have reached some persons at the foot of Mahuli hill, allegedly for the purpose of undergoing training. Even if these allegations are taken on their face value, according to learned counsel; the prosecution is trying to attribute mens rea to the appellant without knowledge, the prosecution does not have any evidence to connect the appellant with the bomb blast. The learned Counsel placed reliance upon paragraph 154 to 162 in the matter of Navjot (supra) and Naleeni’s case reported at [18] 1999 SCC (Cri.) 691 (para 610), and urged that the circumstances relied upon against the accused persons in those cases were much more serious than the appellant before this Court and yet, they were not held to be conspirators. Hence, according to learned counsel, the prosecution does not have material sufficient to demonstrate that the appellant herein was a part and parcel of the conspiracy, having agreed to the common object of the same. She has placed reliance upon the observations of the Supreme Court in the matter of Kehar Sing v/s State (Delhi Administration),(1988) 3 SCC.609, as contained in paragraphs 274 and 276, which read as follows; " 274. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to Section 120-A and 120-B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of [19] the offence of conspiracy." 276. ......................................... The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should nor enter the judicial verdict. We must thus be strictly on our guard. " . As a last limb of her argument, learned Counsel for the appellant has drawn our attention to unreported judgment dated 19.12.2005, delivered by another Division Bench of this High Court in Criminal Appeal No.56 of 2005 (Aatif Nasir Mulla v/s State), by which this court has upheld the bail plea of appellant therein, another accused in this very case. It was urged that the allegations levelled against that appellant were more serious, since it was the claim that there was also recovery of AK-56 rifles. Therefore, on the ground of parity, according to learned counsel; the present appellant should be considered for grant of bail. 5. Replying the arguments, learned APP Ms. [20] Kantharia submitted that, although there were only three incidents of bomb blast, it would be misconception to believe that the conspiracy was only for the purpose of carrying out these three bomb blasts. At the most, three bomb blasts, was one of the activities of the conspiracy, which is aimed at waging war against the State and Government established in accordance with law and Constitution. She has expressed that, the ambit and magnitude of the conspiracy being much large, can be demonstrated by the material on record. According to her, the object of the conspiracy is not of committing a trifle offence against any individual, or to do some legal acts by illegal means, but the activities of the conspiracy are aimed at, installing fear and terror in the mind of individuals and the society at large. This is an attempt to wage war against the Government, which is attempted to be accomplished by violence of a public nature. She desired us to consider seriousness of the case, as against the appellant in the light of outer limits or magnitude of the conspiracy, although his role in the same may be limited. She also placed reliance upon observations of the Supreme Court in the matter of Kehar sing (supra) (supra) (supra) from paragraph 271, which, in fact is a passage from ‘Russel on Crime’ ‘Russel on Crime’ ‘Russel on Crime’ and which is reproduced by the Hon’ble Apex Court in said paragraph 271, which