laksher-e-taiyba (let) militants terror case-delhi court judgement

7/31/2019 Laksher-e-Taiyba (LeT) Militants Terror Case-Delhi Court Judgement

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1 S/v Hamid Hussain etc

IN THE COURT OF SH. DHARMESH SHARMA, ASJ-II,NORTH, DELHI.

SESSIONS CASE NO: 178/05 & 15/06

FIR No: 40/05

P.S. Special Cell

U/S: 121/121A/122/123 & 120B IPC

4/5 Explosive Substances Act

18/19/20/23 Unlawful Activities

(Prevention) Act

&

FIR No. 132/04

P.S. Special CellU/s 379/411 IPC

DATE OF INSTITUTION in FIR 40/05 : 03.06.2005

DATE OF INSTITUTION in FIR 132/04: 14.7.06

DATE ON WHICH JUDGMENT

HAS BEEN RESERVED : 22.12.2009

DATE ON WHICH THE JUDGEMENT HASBEEN DELIVERED: 08.01.2010

STATE

Versus

1.Hamid Hussain @ Abu Faisal s/o Rashid Ahmed

r/o C-960, Gali no. 10, Jafrabad,Seelam Pur, Delhi.

2.Mohd. Shariq s/o Mohd. Yaseen

r/o C-87/15, Gali no. 10,

Chouhan Banger, New Seelampur, Delhi.

3.Mohd. Iftekhar Ahsan Malik @ Ahsan Malik

@ Laddan @ Shahis s/o Mohd. Fakruddin


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r/o VPO, Ara, P.S. Chanderdeep,

Distt. Jamui, Bihar,

4.Maulana Dilawar Khan s/o Sikandar Khanr/o JB6/199, Welcome, Delhi.

5.Masood Ahmed @ Imam Saheb s/o Hazim Mohammad

r/o A-Block, Kabutar Market,

Welcome, Delhi.

6. Haroon Rashid s/o Mustaq Ahmed Ansari

r/o Taiya Dumari, PO, Marachhi,

P.S. Jamo Bazar, via Gorea Kothi,

Distt. Siwan, Bihar.

08.01.2010

APPEARANCE:

Mr. Masood Ahmed, Additional Public Prosecutor for State.

Ms. Nitya Ramakrishnan, Adv. For accused Mohd. Iftkhar Ahsan Malik.

Mr. M.S. Khan, Adv. For accused Hamid Hussain, Mohd. Shariq and

Haroon Rashid.

Mr. N.D. Pancholi, Amicus Curiae for accused Maulana Dilawar Khan

and Masood Ahmed.

JUDGEMENT :-

1. This judgment shall decide the above noted two cases which arise more

or less out of the same incident. In case FIR no. 40/05, accused persons namely

Hamid Hussain @ Abu Faisal s/o Rashid Ahmed, Mohd. Shariq s/o Mohd.

Yaseen, Mohd. Iftekhar Ahsan Malik @ Ahsan Malik@ Laddan @ Shahis s/o

Mohd. Fakruddin, Maulana Dilawar Khan s/o Sikandar Khan, Masood Ahmed @

Imam Saheb s/o Hazim Mohammad and Haroon Rashid s/o Mustaq Ahmed

Ansari have been arraigned for trial by the State / Prosecution for committing

various counts of offences under the Indian Penal Code, Explosive Substances


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Act 1908 (in short ES Act) besides the Unlawful Activities (Prevention) Act 2004

(in short UAP Act) for waging of war against Government of India etc.

2. In FIR no. 132/04, accused Mohd. Shariq has been arraigned for furthertrial u/s 379/411 of IPC.

FACTS

3. The case of the prosecution is that during the first week of February

2005, an information was received that banned terrorist outfit Laksher-e-Taiyba

(LeT) has set up a base in Delhi and one Hamid Hussain r/o Seelam Pur was

working for LeT in Delhi who had been frequently visiting Jammu & Kashmir to

get arms and ammunition besides explosives on instruction from LeT

commander. A police team under the supervision of ACP Rajbir Singh, Inspector

Mohan Chand Sharma, Inspector Badrish Dutt, SI Sanjay Dutta, SI Rahul, SI

Ramesh Lamba, SI Subhash Vats, SI Rajinder Singh Sehrawat, SI Kailash Bisht,

SI Jai Kishan and SI Vinay Tyagi was formed to develop the information, identify

Hamid and his whereabouts in Seelam Pur area by deploying secret sources

besides mounting technical survillience ; that information was developped that

Hamid Hussain r/o C-960, Gali no. 20, Jafrabad, Seelam Pur teaches Holy

Quran in Attarwali Masjid, Welcome, Delhi who has been contacted by one

Mohd. Shariq r/o Chohan Bangar, Seelam Pur and actively involved in the

affairs of LeT.

4. It is the case of the prosecution that on 5.3.05 at about 2 p.m. a secret

information was received in the office of Special Cell, Lodhi Colony, Delhi that

the said Hamid Hussain is coming from Jammu & Kashmir with a consignment of

RDX explosives and would arrive at Mukarba Chowk, near Delhi-Karnal bye-

pass at about 4.30 p.m. and his associate Mohd. Shariq would be coming to

receive him on his motor cycle bearing no. HR 13 S 2639. The information was

recorded in Daily Dairy, matter was discussed with senior police officers and the

police team was constituted and left the Special Cell, Lodhi Colony at 3.15 p.m.

and reached Red Light, Sanjay Gadhi Transport Nagar, Near Mukarba Chowk at


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about 4 p.m. ; that the police team managed to have assistance of two public

witnesses PW1 Anil Jain and PW22 Sanjay Dhaka ; that the members of the

team were deployed at or around the place and at about 4.15 p.m. accusedMohd. Shariq came riding on a motor cycle no. HR 13 S 2639 from Karnal side

and stopped near Ravi Viklang STD Booth and started waiting for someone ; that

at about 4.40 p.m. accused Hamid Hussain got down from a Tata Sumo coming

from Karnal side ; that the two accused spoke to each other and as they were

about to leave the place, both of them were overpowered and apprehended.

5. It is further the case of the prosecution that accused Hamid Hussain was

carrying a blue and green colour air bag, the contents of which were checked

and beneath the layer of clothes, a plastic sack in a black polythin was recovered

containing 22 card board packets which were opened and found containing RDX

explosives ; that each packet was found containing RDX weighing about 480

gms and their collective weight was 10.560 gms. Suffice to state that as per the

case of the prosecution, the sample of explosive material were taken, parcels

were prepared and sealed with the seal of 'MCS' besides filling up the CFSL

Form. The investigation was taken over by ACP Rajbir Singh who reached the

spot in the meanwhile.

6. It is then case of the prosecution that both the accused Hamid Hussain

and Mohd. Shariq were interrogated at the spot and they revealed that they were

working for LeT and the consignment of RDX was brought from Jammu and

Kashmir to be delivered to another LeT activities Shams @ Parvez Ahmed

Khusro residing in Uttam Nagar along with two pakistani LeT Fidayin ; that rukka

was prepared by PW19 Inspector Badrish Dutt at the instance of Inspector

Mohan chand Sharma which was sent for registration of FIR against the

accused persons trough PW18 ASI Vikram Singh. On intense interrogation of

the two accused, they revealed that they had collected three AK 56 rifles with

magazines and a large number of rounds of grenades, dynamites and detonators

and the same were lying at safe house out at Suraj Vihar, Uttam Nagar, Delhi


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where Shams @ Parvez and two Pakistani based LeT Terrorists Bilawal and

Shahnawaj were hiding ; that they also revealed that the Fidayin were planning

to conduct an attack on Indian Military Academy (IMA) Dehradoon, Uttranchal.7. It is further the case of the prosecution that on the said information, a

team was constituted and reached Suraj Vihar, Uttam Nagar, Delhi ; that the hide

out was identified by accused Hamid Hussain and Mohd. Shariq ; that the area

was receed and later evacuated ; that when the hide out was surrounded,

sensing police presence, the militants opened fire and in the ensuing shoot out,

three militants were killed identified as Bilawal @ Mohd. Shams aged 24 years

r/o Rawal Pindi, Pakistan, Shahnawaj aged 25 years r/o Sindh, Pakistan and

Shams @ Parvez r/o Patna, Bihar. A case vide FIR no. 190/05 dt. 6.3.05 under

various provisions of UAP Act, IPC and ES Act besides Arms Act was lodged

and from the hide out the police allegedly made recovery of three AK 56 rifles,

six magazines, 450 detonators, 100 kg. Dynamite, four hand grenades, three

bundoliers, one Satellite phone and one Maruti Car besides dairies and e-mail

IDs of terrorists with which they were in touch with LeT Commanders.

8. During further investigation by the police, it came out that accused

Hamid Hussain and Mohd. Shariq were introduced into militancy by one Salim @

Doctor @ Masalewala @ Salar r/o Madhya Pradesh at whose behest they had

traveled to Kathmando, Nepal where they had met Abul Aziz, a commander of

LeT. Accused Mohd. Shariq disclosed that he was introduced to LeT Tanjim by

accused Hamid Hussain and he had been residing with deceased militant Shams

@ Parvej at their hide out at Suraj Vihar, Uttam Nagar. It is suffice to state here

that the motorcycle which was in used by accused Mohd. Shariq at the time of

his apprehension bearing no. HR 13 S 2639 was found to be stolen one and

subject matter of FIR no. 132/04 dt. 16.4.04 u/s 379/411 IPC of P.S. Vasant

Vihar for which accused Mohd. Shariq has faced a separate trial clubbed with the

present case.

9. It is the case of the prosecution that accused Hamid Hussain allegedly


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procured a consignment of hand grenades and pistol in June/July 2004 from

Salim @ Doctor and the hand grenade was kept in the safe custody of accused

Dilawar Khan r/o Welcome and pistol was kept in the custody of Imam Masood ofBaghwali Masjid. During the investigation, it was also found that name of

accused Iftkhar Ahsan Malik was found in the dairy of slain militant through

whom information relating to IMA passes were obtained who was apprehended

on 8.3.05 and it was found that slain militant Shams @ Parvez had given specific

instructions to accused Mohd. Iftkhar Ahsan Malik to gather information

regarding certain activities of the IMA. During the course of investigation on

12.3.05, accused Maulana Dilawar Khan and Masood Ahmed were arrested on

the identification of accused Hamid Hussain. Further investigation revealed that

accused Haroon Rashied @ Farukh had been providing funds for carrying out

terrorist activities to the slain militants at the behest of Saleem @ Doctor who

was then arrested on 13.5.05. After necessary investigation, the charge sheet in

the present case was filed on 3.6.05 before the Court of Ld. ACMM and

supplementary challan against accused Haroon was filed on 10.8.05.

CHARGE

10. Accused Hamid Hussain, Mohd. Shariq, Iftkhar Ahsan Malik, Maulana

Dilawar Khan and Masood Ahmed were charged u/s 18, 19 and 20 of UAP Act

for conspiracy and preparation of Fidayin attack at IMA Dehradoon, Harboring

the slain militants and also being members of banned military outfit LeT. All the

accused were then also charged for an attempt to wage war against

Government, using criminal force and being found in possession of arms,

ammunitions, explosives in order to carry out attack and wage war against

Government of India u/s 121, 121A, 122, and 123 IPC.

11. Accused Hamid Hussain, Mohd. Shariq and Maulana Dilawar Khan

were charged u/s 4 & 5 of ES Act r.w. Section 120B for being found in

possession of RDX . All of them were charged for committing an offence u/s

120B IPC. Accused Mohd. Haroon Rashid was also charged u/s 18, 19 and 20


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of UAP Act and accused Masood Ahmed was charged u/s 25 Arms Act for being

found in possession of a chinese pistol with 25 live cartridges. Needless to state

on putting the abovesaid charges, the accused persons pleaded not guilty andclaimed trial.

12. In FIR no. 132/04, accused Mohd. Shariq was also charged for

committing an offence u/s 411 IPC for being found in possession of stolen

motorcycle.

PROSECUTION EVIDENCE

13. Prosecution in order to prove its case, examined as many as 30

witnesses. In the category of Public Witnesses, the following witnesses were

examined : PW1 was Anil Jain and PW22 was Sanjay Dhaka who were

examined in regard to events on 5.3.05 leading to the arrest of accused Hamid

Hussain and Mohd. Shariq ; PW3 was Adil. He was examined as a witness to

the letting out of a room in house no. 28, Zakir Nagar by his deceased father to

one of the slain terrorist Shams @ Parvez and also to testified that accused

Hamid Hussain was seen in the company and residing with the slain terrorist but

the witnesses did not support the prosecution case ; PW5 was Raees Raja. He

deposed that he had handed over to the police one bag belonging to the slain

terrorist Shams on 6.3.05 which was seized vide memo Ex. PW5/A and he

deposed about the contents of the bag Ex. P-1 to P-3. He also deposed about

police making some enquiries from him regarding the slain terrorist Shahnawaj ;

PW6 was Fariq Ahmed. He deposed that Masood Ahmed was working as Imam

in the Masjid Baghwali at Welcome, Shahdara, Delhi. He deposed handing over

salary register of the accused Masood Ahmed to Si Dharminder vide seizure

memo Ex. PW6/A and the register was proved in evidence as Ex. PW6/B ; PW8

was Masood Usmani. He deposed running an agency of Western Union Money

Transfer and on 10.1.05 and 15.1.05 money was received on transfer by

accused Haroon Rashid which was collected by Yunus Raza. He deposed that

documents in this regard were handed over to the police vide seizure memo Ex.


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PW8/A and the transfer forms running into two pages were deposed about Ex.

PW8/B and 8/C ; PW12 was Sikandar Azam. He deposed that on 26.5.05 a

register containing the employment proof of Imam Masood was handed over tothe police vide seizure memo Ex. PW6/A ; PW13 was Anwar Khan. He was real

brother of accused Dilawar and stated that he was owner and in occupation of

house no. JB6/199, Welcome, Seelam Pur and he deposed that his brother

Dilawar was residing at D-39, Subzi Mandi, Delhi. He was treated as hostil

witness by the prosecution since he did not support the prosecution case that

accused Dilawar was residing in house at Welcome, Seelampur ; PW14 was

Mohd. Yunus Raza. He deposed collecting payment of Rs.49,000/- each on

10.1.05 and 15.1.05 on transfer by accused Haroon Rashid through Western

Union Transfer. He was treated as hostile witness by the prosecution as he

denied that he had handed over the money transferred to the slain terrorists

Shams @ Parvez on instruction from accused Haroon Rashied ; PW15 was

Sahil Pandoh. This witness deposed that accused Iftkhar Ahsan Malik was

introduced to him by his friend Sandeep and accused took away three passes of

IMA Parade scheduled to be held on 9.12.04. I shall dwell upon his evidence

later on in this judgement.

14. In the category of police witnesses, the following were examined :

PW2 ASI Paramjit Singh. He was Malkhana Incharge Special Cell, Lodhi

Colony. He deposed about the deposit of case property in the malkhana on

various dates and proved the entries which are Ex. PW2/A to PW2/U ; PW4 was

SI Attar Singh. He was Duty Officer at P.S. Spcial Cell on 5.3.05 who deposed

that about 09.30 p.m. ASI Vikram brought a rukka sent by Inspector Mohan

Chand Sharma on the basis of which present FIR no. 40/05 was recorded Ex.

PW4/A and proved his endorsement on the rukka which is Ex. PW4/B ; PW7 was

SI Rahul Kumar. He was associated in the police raid at the alleged hide out of

the slain militants at Suraj Vihar, Uttam Nagar ; PW16 was Inspector Kailash

Singh Bisht. He was associated in the investigation on 6.3.05 during which time


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accused Hamid and Mohd. Shariq led the police party to 17/28, Zakir Nagar and

later A-202, th Floor, Adiba Market where the slain militants were allegedly

residing. He was also associated in the investigation of case on different datesand I shall dwell on his evidence later in detailed in this judgment ; PW17 was

Inspector Rajnder Shahrawat. He testified being a member of raiding party in the

shoot out or the encounter that took place at Suraj Vihar ; PW18 was ASI Vikram

Singh who was a member of the police team at Mukarba Chowk on 5.3.05 when

the accused Hamid Hussain and Shariq were apprehended and he deposed

taking the rukka to the P.S. at the behest of Inspector M.C. Sharma for

registration of case ; PW19 another key police witness namely Inspector Badrish

Dutt. He was member of the raiding party on 5.3.05 which led to the arrest of

accused Hamid and Shariq. He was also associated during the investigation in

this case on various days on which I shall dwell on his evidence in detailed later

in this judgment ; PW20 was Inspector Ramesh Lamba. He deposed in regard to

investigation done at Dehradoon which led to the arrest of accused Iftkhar

Hussain Malik and unearthed the role of the accused Iftkhar Hussain Malik in

planning an attack on IMA. He was also associated during various stages of

investigation including arrest of accused Masood Ahmed and Dilwar Khan ;

PW21 was Om Vir Singh, Additional DCP. He was posted as ACP, Tilak Nagar

on 5.3.05 and he investigated the shoot out/encounter incident being subject

matter of FIR no. 190/05, P.S. Uttam Nagar ; PW23 was Sh. Ajay Kumar, DCP

who deposed granting sanction for prosecution of accused Masood Ahmed @

Imam Sahib u/s 39 of the Arms Act and proved the report Ex. PW23/A ; PW24

was Inspector Ran Singh who on 12.3.05 was posted as Additional SHO, P.S.

Welcome. He deposed that on that day at the instance of accused Hamid

Hussain accused Dilawar Khan was arrested outside his house no. JB6/199,

Welcome, Delhi and at the instance of accused Dilawar, one hand grenade was

recovered. I shall dwell on his evidence in detailed later in this judgment.

Unfortunate for the prosecution case, both ACP Rajbir Singh and Inspector


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Mohan Chand Sharma are no more in this world. The last police witness was

therefore, Inspector Sanjay Dutt who had been associated in the investigation of

the case right from 5.3.05.

15. In the category of expert or so called formal witnesses were examined

: PW9 was Mr. V.B. Saxena, retired Dy. Secretary (Home). He deposed about

sanction for prosecution granted against the accused persons by His Excellency

Lt. Governer, Delhi u/s 45 of the UAP Act Ex. PW9/A besides sanction granted

the same day u/s 196 Cr.P.C. vide order Ex. PW9/B ; the said sanction was

granted in regard to all the accused except accused Haroon Rashid which matter

came up later before His Excellency Lt. Governor and sanction for his

prosecution under said provisions of the Act was proved which is Ex.PW9/C and

9/D ; PW10 was Mr. A. Dey, Principal Scientific Officer (Ballistic). He examined

the pistol and the cartridges which were allegedly seized from accused Imam

Masood Ahmed and proved his report Ex. PW10/A to the effect that the pistol

and cartridges were live one and arms and ammunition within the meaning of

Arms Act. Pistol was marked Ex. P-9 and the cartridges were marked Ex. P-

10/1-24 ; PW11 was Mr. N.B. Bardhan. Principal Scientific Officer, Assistant

Chemical Officer, CBI. He examined the 22 sample parcels marked S-1 to S-22

and gave report Ex. PW11/A that the material was RDX based high explosives.

In his evidence he also identified the samples of the RDX which were marked Ex.

P-12/1 to P-22. He also testified examining another parcel on 27.5.05 with the

seal of 'MCS' containing a hand grenade and proved the report Ex. PW11/B to

the effect that the hand grenade was a live one which was identified in evidence

as Ex. P-13 ; PW25 was Dr. M.A. Ali, Principal Scientific Officer (Documents cum

Assistance) (retired) from CFSL, CBI. He deposed examining the questioned

documents Q-1 to Q-12 with the specimen handwriting of accused Iftkhar Ahsan

@ Ahsan Malik S-1 to S-23 as per request by Sh. Ashok Chand, DCP, Special

Cell, Delhi as per letter Ex. X-1. He proved his report running into three pages

which is Ex. PW25/A to the effect that questioned documents were in the


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handwriting of Iftkhar Ahsan @ Ahsan Malik ; PW26 was Smt. R.S. Nag, P.O.,

MACT. She testified that on 18.5.05 she was posted as CMM, Tis Hazari Courts

and on the request of SI Kailash Singh Bisht, Special Cell Ex. PW26/A, accusedHaroon Rashid was taken to the computer room, Tis Hazari Complex and 81

copies of print outs of e-mails opened by the accused were taken out marked Ex.

P-26/1 to PW26/81 ; PW27 was Mr. R. Narainswami, Chief Secretary (Retired),

Government of NCT of Delhi. He testified passing an order u/s 25 (5) of UAP

Act in regard to retention of 10,000/- Singapore dollars allegedly recovered from

accused Mohd. Haroon Rashid @ Farooq till the disposal of the case and such

order was proved Ex. PW27/A ; PW28 was Har Bhagwan, Retired Assistant

Director of Technical Wing, CID, Haryana. He deposed accepting a parcel from

SI Sanjay Dutt containing Russian made hand grenade which was defused by

him as per request of Sh. Karnail Singh, Joint Commissioner of Police, Delhi and

he proved his report in this regard which is Ex. PW28/A. The last witness for the

prosecution was PW30 Sh. J.K. Dadu, Administrator, Laksha Deep Island,

Kavaratti. He deposed that in June 2009. He was posted as District Magistrate

cum Principal Secretary (Revenue) and on 5.1.09 a requisition was received

from the Office of DCP (HQ) to consider according of sanction for prosecution u/s

7 of the ES Act as against accused Hamid Hussain @ Abu Faisal, Mohd. Shariq

and Maulana Dilawar Khan. He deposed that on the basis of entire facts and

circumstances brought to his notice, he accorded sanction vide order dt. 30.6.09

Ex. PW30/A.

16. As regards case FIR no. 132/04, P.S. Special Cell against Mohd.

Shariq, the prosecution has examined the following witnesses : PW1 was Sh.

Anil Jain. Suffice to state that his evidence was in regard to accused having

been in possession of motorcycle no. HR 13S 2639 at about 4.20 4.30 p.m. on

5.3.05 when he was apprehended in FIR no. 40/05 ; PW2 was ASI Paramjit

Singh, Incharge Malkhana, Special Cell, Lodhi Colony. He deposed that inter

alia the motorcycle was deposited in the Malkhana vide entry in register no. 19 at


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Sl. No. 596 Ex. PW2/A on 5.3.05. He deposed that on 18.3.05, SI Vinay Tyagi

removed the number plate of the motorcycle bearing no. HR 13SW 2639 which

was recorded vide entry Ex. PW2/B ; PW3 was ASI Ram Prakash, Duty Officerat P.S. Vasant Vihar who on 16.4.04 recorded FIR regarding theft of the

motorcycle and proved the copy of FIR Ex. PW3/A along with endorsement on

the rukka Ex. PW3/B ; PW4 was Dr. Puneet Bagga. He was examined as owner

of the motorcycle in question and proved his complaint to the police dt. 15.4.04

Ex. PW4/A. He also produced the registration certificate of the motorcycle

besides copy of insurance which are Ex. PW4/B and PW4/C respectively. Lastly,

the Investigating Officer SI Vinay Tyagi was examined as PW5.

STATEMENT OF THE ACCUSED

17. On the close of the prosecution evidence, all the accused persons were

separately examined as per Section 313/281 Cr.P.C. On putting the

incriminating evidence brought on record by the prosecution, accused Hamid

Hussain denied that he was arrested by the police in the manner brought out by

the witnesses on 5.3.05 at Mukarba Chowk. He denied being found in

possession of RDX and denied any association with the slain militants He

denied being involved in any conspiracy with the remaining accused persons or

in planning or preparation to commit Fidayin attack on IMA. Similar was the case

with accused Mohd. Shariq who denied the entire case of the prosecution and

stated that he was held up by the police on 5.3.05 when he was traveling in a

TSR with an unknown passenger near Hanuman Mandir, Dharampura, Shastri

Park. He stated that he was then detained in the office of Special Cell where he

was shown to some persons ; that no intimation was sent to his parents and on

5.3.05, he was taken to Mukarba Chowk in a vehicle driven by Inspector Sanjay

Dutt, Inspector Badrish Dutt and one Constable and there the entire drama was

staged ; that one boy Rahul who used to serve meals in the Office of Special Cell

was present and he was made to switch his shirt with the one which was being

worn by Rahul and that his signatures were taken on several blank documents.


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18. Accused Iftkhar Ahsan Malik was doing IInd year in Biotechnology from

Garwal University. He also denied the case of the prosecution that he was in any

conspiracy/planning to commit Fidayin Attack on IMA. He denied his associationwith slain militants but admitted that diary Ex.P-12 was recovered from him. He

also admitted that the versus from Holy Quran were written by him in the diary

but stated that versus in Urdu were not in any way insisting him or anyone to

indulge in violence or Zihad or there was no reference to any riots in Gujarat or to

any community. He admitted writing slip Ex. P-13 but stated that it was done due

to coercion exercised by the officers of Special Cell. He also claimed innocence.

19. Accused Haroon Rashid, is a Mechanical Engineer from Aligarh Muslim

University and before his arrest he was undergoing a particular course to

specialize in marine engineering. He also denied having any association with the

other accused persons or slain militants. He denied being in conspiracy to fund

any Fidayin Attack on IMA. He denied that the money transferred by him from

Singapore was collected by slain militant Shams @ Parvez through Mohd. Yunus

Raza. He admitted having remitted sum of Rs.49,000/- in two installments to his

parents and denied that he had any connection with the e-mails Ex. PW26/1 to

PW26/81.

20. Suffice to state that accused Maulana Dilawar Khan as well as Masood

Ahmed @ Imam Sahib also denied the recovery of any explosives or arms or

ammunition from them. They also claimed their innocence.

21. Accused Hamid Hussain chose to lead evidence in their defence. DW1

was his father Rashid Ahmed who deposed that his son was missing w.e.f.

4.2.05 and a missing complaint was filed with P.S. Seelam Pur vide DD no. 15/A

dt. 11.2.05 marked 'A'. DW2 was father of accused Mohd. Shariq namely Mohd.

Yasin. He deposed that the last time, he had seen his son on 5.2.05 when he

had delivered lunch to him at about 3 p.m. and thereafter he went missing and a

complaint was lodged with P.S. New Usman Pur. DD No. 28A dt. 9.2.05 copy of

which was marked 'B'. DW3 was Gokaran who deposed being in detention of


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the Special Cell, Delhi Police w.e.f. 28.2.05 in FIR no. 71/05 u/s 364A/120/34

IPC and the 25 the Arms Act. He deposed that he had seen accused Shariq in

the Cell/Lock-up adjoining to his from 28.2.05 to 7.3.05.22. I have heard Mr. Masood Ahmed, Ld. Addl. Public Prosecutor for the

State and Sh. N. D. Pancholi, Ld. Amicus Curiae, Mr. M.S. Khan, Ms. Nitya

Ramakrishnan Advocates for the accused persons. I have given my thoughtful

consideration to the lengthy submissions advanced by the Ld. Counsel for the

accused persons. I have also gone through the voluninous oral and

documentary evidence on the record.

CASE AGAINST HAMID HUSSAIN @ ABU FAISAL AND MOHD. SHARIQ S/O

MOHD. YASEEN

23. The case of the prosecution begins much prior to the arrest of the two

accused Hamid Hussain @ Abu Faisal and Mohd. Shariq at Mukarba Chowk on

05.03.2005. PW -19 Inspector Badrish Dutt deposed that in February 2005 an

information was received that banned militants outfit LeT was trying to set up a

base in Delhi and one Hamid Hussain @ Abu Faisal resident of Seelampur was

actively involved in the affairs of LeT visiting Jammu and Kashmir to collect arms

and ammunition in order to spread the network of LeT. He testified that under the

supervision of then ACP late Sh. Rajbir Singh, a team was formed comprising of

Inspector Mohan Chand Sharma, SI Sanjay Dutt besides him. He deposed that

sources were deployed and technical surveillance was mounted. He also

deposed that during this period it came to notice that Hamid Hussain was

resident of C-960, Gali No. 20 Zafarabad, Seelampur and that one Shariq was

also actively involved with him in LeT affairs. He testified that information was

received on 05.03.2005 that Hamid Hussain would be alighting at Mukarba

Chowk at 4:30pm with consignment of explosives and his associate Shariq would

be meeting him riding on a motor cycle no. HR 13S 2639 ; that the information

was recorded in Daily Diary No.5 at 2 p.m. On 05.03.2005.

24. Evidence of PW 19 besides PW -29 Inspector Sanjay Dutt indicate that


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a team was constituted consisting of Inspector Mohan Chand Sharma, PW 19,

PW-29, SI Subhash Vats, SI Dharmender, SI Jai Kishan, ASI Ashok Kumar, ASI

Satish, HC Satender, Ct. Hans Raj, Ct. Vinod, ASI Vikram Singh and the teamleft the office of the Special Cell at 3:15 p.m and reached at the red light Sanjay

Gandhi Transport Nagar, Mukarba Chowk, GT Karnal Road at about 4:00p.m.

Evidence of PW 19 and PW-29 goes to show that Inspector M. C. Sharma was

successful in getting assistance of two public witnesses PW 1 Anil Jain and PW

22 Sanjay Dhaka in the ensuing police operation; that police party was deployed

at strategic points at Mukarba Chowk and the vigil was kept. It is in the evidence

of PW 19 Inspector Badrish Dutt and PW 29 Inspector Sanjay Dutt that at about

4:15pm Mohd. Shariq was identified who came riding motor cycle no. HR 13S

2639, parked and starting waiting at red light near Ravi Viklang STD which place

is shown at point 'A' in the site plan Ex. PW 29/A. It is pertinent to mention that

the STD booth was located on the North side on the road towards East which

leads towards the ISBT at Mukarba Chowk at G.T. Karnal Road. It is then in their

evidence that soon thereafter accused Hamid Hussain alighted from a Tata

Sumo which came from the side of Karnal and stopped near Ravi Viklang STD;

that he was carrying a blue/ green colour air bag in the right hand and he talked

to accused Mohd. Shariq for about a minute or two and as the two accused

were set to ride away, the members of the team were alerted and they

converged upon the accused persons who were then apprehended. PW-18 ASI

Vikram Singh further corroborated the entire scenario in which the two accused

persons were apprehended in the presence of the public witnesses.

25. The rest of the events can be figured out from the evidence given by

PW-1 Anil Jain and PW-22 Sanjay Dhaka. First thing first, both PW-1 and PW-22

deposed that they were together in the car belonging to PW-1 and they had

stopped at red light near Sanjay Gandhi Transport Nagar, Mukarba Chowk,

whereat they were approached by a police official who identified himself as

Inspector Mohan Chand Sharma and apprised them about the proposed police


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action and requested for their assistance to which they assented. Both the PW-1

and PW-22 testified that as per instructions of Inspector Mohan Chand Sharma

they came out of their car and stood near Ravi Viklang STD . PW-1 Anil Jaindeposed that at about 4:20pm 4:30 p.m one boy came riding on a motor cycle

no. HR 13 S 2639 and started waiting for someone. He further deposed that

about 4:40 pm another boy came having a bag on his shoulder and started

talking with the motor cyclist and as they were about to leave, they were

apprehended by the police officials. PW-22 also corroborated the version of PW-

1, PW19 as well as PW29. It is then in the evidence of both public witnesses that

the shoulder bag of the accused who was identified as Hamid Hussain was

checked and beneath the layers of cloth one black colour polythene containing

22 black colour card board boxes were recovered and police disclosed that the

contents of the same were RDX.

26. Both PW1 and 22 then deposed that each card board box was weighed

in their presence which was found to be 480 grams each and the total weight

was measured to be 10.5kg; that sample of RDX from each black colour card

box was taken which was given sample no. S-1 to S-22 and the samples were

sealed with the seal of 'MCS'. They further deposed that the remaining RDX was

sealed in a separate parcel with the seal of 'MCS' and police prepared a seizure

memo Ex. PW 1/A which was signed by PW-1 at point A-1 and PW 22 at point B-

1. Further the motor cycle was also seized vide seizure memo Ex. PW 1/B

signed by both the public witnesses. The samples of RDX explosives were also

identified by the witnesses as Ex. P-1, the bag as P-2, the personal clothing of

the accused comprising one sweeter, one jeans and pant, one kurta pyjama

identified as P-3; further the 22 black colour card board boxes were also

identified collectively as P-4 and the motor cycle as P-5.

27. Mr. Khan, Ld. counsel for the accused Hamid Hussain @ Abu Faisal

and Mohd. Shariq vehemently urged that the so called public witnesses PW-1

and PW-22 were not natural chance witnesses and they were planted one.


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Elaborating on his plea, he urged that the two witnesses were not together and

their deposition rather suggest that they were in different cars coming from

different places for different purposes and going to different destination. Hereferred to the evidence of PW 18 ASI Vikram Singh that both the public

witnesses were not passersbyes. He further pointed out that the disclosure

statement of the accused Hamid Hussain Ex. PW 19/F and that of accused

Mohd. Shariq Ex. PW 19/E were also not signed by the witnesses. He also

pointed out that no effort was made by the police witnesses to note the

registration number of the Tata Sumo or to intercept or chase it which belies

conventional police procedure.

28. I am afraid I do not see much merits in the submission made by Mr.

Khan, Ld. counsel for the accused persons. PW-1 in his cross examination was

categorical that he was driving his car and PW-22 Sanjay Dhaka was sitting with

him. I do not see from where Mr. Khan has come to the impression that

witnesses were in two different cars. It is in the evidence of PW-1 and PW-22

that they were known to each other for more than 10 years. It may be that they

had different purpose in mind in their meeting but I do not see how it can cause

any crack in the credibility of the version of the incident. Both then deposed that

at the instruction of Inspector Mohan Chand Sharma they stood near Ravi

Viklang STD and watched the arrival of two accused persons and watched their

apprehension besides recovery of RDX from the bag of accused Hamid Hussain.

There is nothing in the cross examination of PW1 and for that matter in the cross

examination of PW-22 that they had any wrongful purpose in siding with the

police officials and deposing falsely against both the accused persons. They

were natural chance witnesses in as much as PW1 testified that he was going to

collect some payment from someone at Samaypur Badli and PW-22 wanted to

meet a property dealer known to his friend PW-1 Anil Jain in Prashant Vihar. It is

pertinent to mention that whereas PW1 was a businessman, PW22 was a

lecturer in a reputed Educational Institute.


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29. Much mileage is sought to be taken from the fact that the Tata Sumo

from which the accused Hamid Hussain alighted was not stopped or intercepted

or chased. It must be seen that the members of the raiding party i.e. about 15-18police officials were on a vigil on a large tract of area at Mukarba Chowk

comprising a radius of about a 500 to 750 metres. Judicial cognizance of the fact

can be taken that Mukarba Chowk is a point on the North of Delhi where the GT

Karnal Road combines with road on one side leading towards Rohini and other

side leading towards ISBT and the one ahead/forward towards Jahangirpuri /

Azadpur. This was an area where there was a constant flow of vehicles of all

kinds with thousands of people converging on both sides of the road for various

purposes boarding and alighting form vehicles etc. The police officials were

probably more focused on their target who as per the secret information was

carrying deadly RDX explosives and when the members of the team were

deployed at different places it could be that in their anxiety to nab the target, they

inadvertently committed a lapse in not noting down the registration no. of the

Tata Sumo and doing nothing further in regard thereto. At the same time, this

lapse on the part of the police official cannot wash away the evidence that is

brought on record as against the accused Hamid Hussain @ Abu Faisal and

Mohd. Shariq.

30. I am also not impressed by the impassioned plea taken by Mr. Khan, Ld.

Counsel for the accused persons that the entire incident at Mukarba Chowk was

stage managed and that the accused persons were already in unlawful detention

of Special Cell. This is urged in the light of the missing reports marked A and B.

It is but obvious that when the accused persons were indulging in clandestine

terrorist activities, they would not be informing the members of their own families

about their movement or whereabouts. Further, I do not see how the entire case

of the prosecution can be wiped out by the evidence of DW3 Gokaran who

probably was entertaining some grouse against the police and out of misplaced

sympathy attempted to side with his brethern . It is also immaterial that the


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address of the accused Hamid Hussain was known to the Special Cell much

prior to his arrest on 5.3.05. The police witnesses have deposed in so many

words that Hamid Hussain was under constant surveillance and it is difficult totake away the credit of the painstaking work of the police officers of Special Cell

that they were on a constant look out for the accused and probably the idea was

to nab him at the right movement. It is hardly of any significance if the disclosure

statements Ex. PW 19/E and 19/F were not signed by the public witnesses. It

must be seen that the time was running by and the police party was gearing itself

to reach the site at Uttam Nagar and, plan and execute an operation to

apprehend the other terrorists. Moreover, there was no point in detaining and

harassing the public witnesses who had already given their valuable time to the

police.

31. Thus I find that there are brought no material contradiction in the

evidence of PW-1 and PW-22 viz-a-viz PW19 and 29 and their evidence appears

to be quite natural, cogent and reliable.

SHOOT OUT AT UTTAM NAGAR- NEXUS BETWEEN THE SLAIN MILITANTS

AND ACCUSED HAMID HUSSAIN AND MOHD. SHARIQ :

32. It is in the evidence of PW 19 Inspector Badrish Dutt that he prepared

the rukka on dictation of inspector Mohan Chand Sharma which was handed

over to PW 18 ASI Vikram Singh who took the same to the office of the Special

Cell for registration of FIR. His evidence was corroborated by PW29 Inspector

Sanjay Dutt and both the witnesses deposed that the memos with seized articles

and motor cycle were handed over to ACP Rajbir Singh and the accused Mohd.

Shariq was arrested vide memo Ex. PW 19/A and the accused Hamid Hussain

was arrested vide memo Ex. PW 19/B. It is then in their evidence that the

accused persons were interrogated and the accused Mohd. Shariq made a

disclosure statement Ex. PW 19/E and accused Hamid Hussain Ex. PW 19/F.

PW-1 in his cross examination stated without any challenge that the accused

Hamid Hussain was interrogated in his presence and he came to know that RDX


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was to be delivered to someone at Uttam Nagar. PW 22 Sanjay Dhaka also in

his evidence deposed that the accused persons were interrogated and they

informed the police that they were to deliver the consignment of RDX explosivesto some terrorists residing in the area of Uttam Nagar. It is then in the evidence

of PW 10 Inspector Badrish Dutt and PW 29 Inspector Sanjay Dutt that accused

persons took them to Kachhi Colony, Suraj Vihar, Uttam Nagar where they

identified the hide out of the militants. It is then in the evidence of police

witnesses PW7 SI Rahul Singh, PW 17 Inspector Rajender Sehrawat and PW21

ACP Omvir Singh that there was police action or encounter against the militants

in which three militants named above were killed.

33. Much was argued by Mr. Khan as well as Ms. Nitya Ramakrishnana, Ld.

counsel for the accused persons that the police encounter at Uttam nagar is a

cock and bull story; that no public witnesses were joined or examined in this case

to verify the factum of encounter; that over 269 rounds fired by the police party

as per DD No. 14 dated 06.03.2005 and as per PW-7 even a hand grenade was

lobbed but surprisingly in the site plan filed in FIR No. 190/05 PS Uttam Nagar,

no bath room is shown where hand grenade was lobbed nor any evidence has

been given as regards any damage caused to the walls. It was also urged that

no ministerial inquiry was conducted as mandated by the National Human Rights

Commission and Mr. khan vociferously urged that the police in a planned manner

killed three innocent persons so as to create a media hype and seek out of turn

promotions in the police cadre.

34. To my mind, the evidence on the police encounter with the slain terrosit

has a limited value in this case. Firstly, at the cost of repetition, it is in the

evidence of PW 1 and PW22 as supported by the police witnesses that accused

persons were interrogated at the spot and they revealed that they were

scheduled to deliver the explosives materials to someone at Suraj Vihar, Uttam

Nagar. Section 27 of the Indian Evidence Act carves out an exception to the

general rule that no statement made by the accused during the police custody is


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admissible against the accused except in so far as any fact is deposed to as

discovered in consequence of information from a person accused of any

offence. It may be indicated that joint disclosure almost simultaneously

made by two or more persons can be received in evidence and such disclosures

do not go out of the purview of Section 27. Secondly, 'discovery of fact' as

envisaged in Section 27 of Evidence Act cannot be equated to mean object

produced or found. The 'discovery of fact' is something more than that and in this

realm any information which is supplied by the accused which leads to

unearthing of material facts during the investigation can be proved as against the

accused. The information so supplied by the accused exhibits the knowledge or

mental awareness of the informant as to existence of certain facts or a particular

place known to them alone. Reference in this connection can be made to

decision in State (NCT of Delhi) v. Navjot Sandhu, 2005 Crl. Law General

3950, in particular reference to para 13 of the judgment.

35. With the said proposition of law at back of our mind, what is discerned

is that the information supplied by the accused persons soon after their

interrogation that they are scheduled to supply the RDX to someone at Suraj

Vihar, Uttam Nagar, Delhi becomes admissible against them u/s 27 of the Indian

Evidence Act is so far as the fact that an encounter or shoot out did take place

with the dreaded terrorists at Uttam Nagar. It becomes relevant to the extent that

the place of hiding of the terrorists was in the knowledge of the two accused

persons. It is admissible for the mental awareness that the accused persons

were facilitating some 'terrorist act' and they had scheduled a rendezvous with

the slain terrorist. This information also becomes relevant in digressing whether

or not the accused persons where indulging in any terrorist act or in any way

conspired or facilitated or made preparation for commission of a terrorist act as

laid down u/s 18 of the Unlawful Activities Prevention Act for short 'UAP Act'

which I would discussed hereinafter.

RECOVERIES, CONSPIRACY AND HARBORING OF TERRORISTS:


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containing an ATM Card besides cheque-book of Standard Chartered Bank in

the name of accused Haroon Rashid whose complicity has not so far been

discussed in this judgment. Further PW8/11 and PW8/12 were Invitation Cardsfor IMA Passing Parade besides Ex. PW8/22 which were 11 pass-port size

photographs belonging to slain militant Mohd. Shahnawaj. It is then in the

prosecution evidence that Hamid Hussain took them to A-202, Adiba Market

where on the forth floor, the slain militant Yunus @ Parvez was residing and in

the presence of PW5 Raees Raja brother of deceased Shams, a bag belonging

to deceased Shams @ Parvez Ex. P-1 was recovered containing some clothes

of the deceased E. P-2 besides some books Ex P-3/1 to 3 which were seized

vide memo Ex. PW5/A . At the cost of repetition, it is the prosecution case that

accused Hamid Hussain and Mohd. Shariq were not only in touch but also

residing with slain militants particularly deceased Shams @ Parvez and

Shahnawaj and they were planning to mount Fidayin attack at IMA, Dehradoon in

criminal conspiracy with accused Iftkhar Ahsan Malik to which end a grenade

and pistol with cartriges were kept with the accused Dilawar and Masood with

funds being made available in part by accused Haroon Rashid

39. Ms. Nitya Ramakrishnan, Ld. Counsel for accused Iftkhar Ahsan Malik

as well as Mr. M.S. Khan, Ld. Counsel for the accused Hamid Hussain and

Mohd. Shariq in this context rightly hammered the point that prosecution is

miserably failing to show any nexus of accused Hamid Hussain and Mohd.

Shariq besides accused Iftkhar Ahsan Malik and Haroon Rashid with the slain

militants. The evidence led by the prosecution indicates that the photographs of

the slain militants were available with the police. It is pertinent to mention here

that PW3 Adil did not support the prosecution case that he had seen Shams @

Parvez in the company of Hamid Hussain at any point of time. In fact, he on

Court Question deposed that he can not identify any person by the name of

Parvez or Hamid. So far as PW5 Raees Raja is concerned, even he did not

depose anything so as to bring out any association between Shams @ Parvez


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and the accused Hamid Hussain, Mohd. Shariq or for that matter Iftkhar Ahsan

Malik or Haroon Rashid. Neither at Uttam Nagar where the encounter had taken

place nor at Zakir Nagar or at Adiba Market any attempt was made by the policeto show the photographs to local residents to verify or substantiate whether

the accused persons were at any time seen in the company or residing with the

slain militants. In the absence of any independent corroborative material, it

becomes difficult to rely on identification memos of the slain militants at the

behest of accused Mohd. Shariq and Hamid Hussain vide memo Ex. PW29/C

and PW29/D respectively which is hit by Section 25 and 26 of the Indian

Evidence Act. There is substance in the plea by the Ld. Counsel for the accused

persons that the disclosure statement of the accused Hamid Hussain and Mohd.

Shariq Ex. PW19/G and PW19/H dt. 6.3.05 is inadmissible in evidence and

cannot be read against them particularly when nothing incriminating was

recovered as against them from the accommodation 17/28 at Zakir Nagar as well

as from the accommodation A-202, Adiba Market. Needless to state that an

offence u/s 120 B of the IPC is a substantive offence and it was but incumbent

on the prosecution to show that accused persons were actively in contact with

slain militants to carry out a Fidayin Attack on IMA Dehradoon. Mere disclosure

statement of the accused in the absence of anything concrete in the nature

discussed above or mobile or telephone call records hardly inspires confidence.

40. Therefore, the recoveries effected by the police from the two places i.e.

17/28 Zakir Nagar and A-202, Adiba Market at the instance of the accused hardly

bring out anything in the absence of some cogent evidence of their being any

active association between accused persons and the two of the slain militants. I

may repeat that in the context of Section 27 of Indian Evidence Act, the only

circumstances that goes against accused Hamid Hussain and Mohd. Shariq is

that they were aware about the accommodation in use of the slain militants.

There is no evidence of harboring of slain militants except probably acting as a

courier or conduit for transportation of explosives from one place to another at


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the behest of their handlers.

EXPERT EVIDENCE AND SANCTION/CONSENT FOR PROSECUTION :

41. It is in the evidence of PW-2 that the parcels with the seal of 'MCS'

stated to be containing RDX samples and one FSL form having the seal of 'MCS'

with one unsealed bag and motor cycle was deposited in the Malkhna vide

register no. 19 at sl. no. 596 Ex. PW2/A. It is then uncontroverted evidence of

PW20 Inspector Ramesh Lamba that on 12.04.2005 as per direction of IO ACP

Rajbir Singh, he collected one sealed parcel with the seal of 'MCS' stated to be

containing 22 samples of RDX explosives form the Malkhana of Police Station

Special Cell vide RC no. 52/21/05 dated 12.04.2005. He deposed that the same

were deposited at CFSL, CBI, CGO complex, Lodhi Road, new Delhi. The

corresponding entry in register no. 19 at sl. no. 596 was proved by PW-2 ASI

Paramjeet Singh vide memo Ex. PW 2/L. It is then in the evidence of PW11 N. B.

Bardhan that he examined the sealed parcels with the seal of 'MCS' containing

22 small plastic white containers S-1 and S-22 and he gave a report Ex. PW

11/A to the effect that after physio chemical examination the samples confirmed

the presence of RDX based high explosives. There is no challenge by the

defence to the evidence above.

42. However, Mr. M. S. Khan, Ld. counsel for the accused persons Hamid

Hussain @ Abu Faisal and Mohd. Shariq urged that the sanction of the District

Magistrate was not taken before initiation of trial as per Section 7 of the ES Act

and he vehemently urged that sanction for prosecution under the said provision

accorded belatedly and during the trial by PW-30 J. K. Dadu vide order dated

30.06.2009 Ex. PW 30/A does not cure the entire prosecution or trial which is

non est in law. In his submissions Mr. Khan, referred to the decision in Baijnath

v. State of M. P., AIR 1966 SC 220; Javitri Devi V. State 1971 Crl. Law

General 1340; and Abdul Miya v. King AIR 1991, Patna 513. it would be

expedient to refer to the relevant provision.Section 7 of the Explosive

Substances Act provides as under:


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7. Restriction on trial of offences- No Court shall proceed to

the trial of any person for an offence against this Act except withthe consent of the 'District Magistrate'.

43. The law is no longer res integrathat the trial commences from the date

charge sheet or police report is filed and cognizance is taken of the offence

against the accused persons. The plain and grammatical reading of Section 7

implies that the consent of the District Magistrate is mandatory before

proceeding for trial of any accused under the provisions of the Act. Perusal of

the chargesheet/police report shows that the matter was considered at the level

of DCP (HQ) and Sh. Alok Kumar, the then DCP (HQ) vide order dated

25.05.2005 accorded consent for criminal proceedings against the accused

Hamid Hussain as well as accused Mohd. Shariq u/s 4/5 of the E.S. Act in

accordance with Section 7 of the Act. It appears that there has been some

confusion in the Legal Department of Delhi Police or the Directorate of

Prosecution and somewhere the top brass in the Police was advised that the

consent u/s 7 of E. S. Act was not as per law and the matter during the trial

came to be processed and considered afresh by PW30 who accorded sanction /

consent vide order dated 30.06.2009 Ex. PW 30/5. I do agree albeit to a limited

extent with the submissions made by Mr. Khan Ld. counsel for the accused

persons Hamid Hussain @ Abu Faisal and Mohd. Shariq that without such

consent by the Competent Authority, the entire trial would be non est in law.

44. At the same time, this is not the scenario in the case before us. First

thing first, this issue was never raised at any stage prior to the stage of final

arguments. Secondly , it would be pertinent to mention that Explosive

Substances Act, 1908 was brought into operation w.e.f. 8th June 1908 and as per

the preamble it was an Act in order to further amend the law relating to the

Explosives as provided under the earlier enactment i.e. the Explosives Act 1884


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which regulated law in regard to collecting, manufacturing, possession, use, sale

of explosives. In other words, the two enactments promulgated one after the

other were directed towards the same object to regulate the law in regard to theexplosive substances. We must bear in mind that the two enactments came into

being in the pre-independence era and the term District Magistrate is not

defined under the Explosive Substances Act 1908 but it is defined under the

Explosives Act 1884. Indeed, section 7 of the Act was amended in the year

2001 but when it comes to the definition of a 'District Magistrate' the meaning is

not supplied anywhere except the Explosives Act, 1884. Section 4 (c) of the

earlier enactment i.e Explosives Substances Act 1884 provides as under :

(c) District Magistrate, in relation to any area for which a Commissioner of

police has been appointed, means the Commissioner of Police thereof and

includes-

(a) any such Deputy Commissioner of Police, exercising jurisdiction over

the whole or any part of such area, as may be specified by the State

Government in this behalf in relation to such area or part; and

(b) an Additional District Magistrate;

45. Well, the object seems to be that a senior officer in the hierarchy of the

Police administration must scrupulously exercise such powers so that there is

some serious scrutiny and meaningful application of mind to the collection of

facts and circumstances by the invetigation Officer. On plain reading of Section

4 (c) noted above and Section 7 of the ES Act, what could be gathered is that

sanction or consent accorded by Dy. Commissioner of Police shall also be valid

notwithstanding that the official of such rank is not the District Magistrate as

was the case with PW-30. Moreover, the Commissioner of Police is empowered

to exercise all powers and discharge all functions which may be exercised or

discharged by a District Magistrate as per Section 146 (1) of the Delhi Police Act

1978 in relation to any enactment referred to in Schedule I, which inter alia

includes the Indian Explosives Act 1884. Section 146 (2) of the Police Act then

empowers the Commissioner of Police to delegate its powers inter alia to a

Deputy Commissioner of Police. Thus, what I find is that the consent for initiation

of criminal proceedings accorded by the DCP vide order dated 25.05.2005 u/s 7


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of E. S. Act is unassailable. Assuming for the sake of convenience that there was

any lacuna, the same stands cured in view of subsequent sanction accorded by

PW 30 vide order Ex. PW 30/A.EVIDENCE AGAINST ACCUSED IFTAKAR AHSAN MALIK :

46. The prosecution case against the accused Iftakar Ahsan Malik is

brought out in the evidence of PW 20 Inspector Ramesh Lamba. He deposed

that from the pocket diary of slain terrorist Shams @ Parvez seized vide seizure

memo Ex.PW 17/B, the name of the accused Iftakar Ahsan Malik was revealed

as resident of Dehradoon and probably in the light of two sheets of paper

depicting land marks in Dehradoon and areas of IMA, a team led by ACP Rajbir

Singh went to Dehradoon. He deposed that they reached Dehradoon in the

intervening night on 7-8th March 2005 and descended at Wing 3 barrack 17/A

Prem Nagar, Dehradoon which was house of one Bhagat Ram Galyani; that

accused Iftakar Ahsan Malik was traced there, interrogated and arrested at 1:30

a.m on 08.03.2005 vide arrest memo Ex. PW 22/A and personal search memo

Ex. PW 22/B. He deposed that during interrogation, the accused Iftakar Ahsan

Malik got recovered one hand written slip P-13 with its copy P-14 seized vide

memo Ex. PW 20/C which contained some instructions and as per disclosure

statement made by the accused Ex. PW 20/E it was revealed that the

instructions were given to him by the slain militants Shams. It would be pertinent

to mention here that slip P-13 contains instructions to collect details of

topography of IMA Dehradoon collecting information regarding routine

programme of the Academy, nearby forest area, establishing local contents to

have access to the Academy and to identify possible hide outs. PW-20 further

deposed that during interrogation, the accused Iftakar Ahsan Malik disclosed that

he had arranged three passes of passing out parade which was held in

December 2004 and he had given two of these three passes to slain militant

Shams whereas one pass was kept by him and the said pass/ invitation card was

identified P-16/D which was seized vide memo Ex.PW 20/E. He further deposed


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that the room of the accused was searched and one black diary of the Life

Insurance Corporation of Pakistan was recovered which was containing a road

map of Pakistan in which J&K was shown as a territory falling in Pakistan whichwas identified as P-12 and seized vide memo PW 20/F. It is in the evidence that

later on the accused was brought to the office of the Special Cell, Lodhi Colony,

where another disclosure statement Ex.PW 20/G was recorded.

47. First thing first, despite the availability of public witness namely the

landlord / owner of the house Bhagat Ram Gulyani, he was not associated in the

interrogation or the alleged search and seizures performed by the police party.

Needless to state that no other public witness was joined as well. Secondly, it is

surprisingly to note that as per PW 20 Inspector Ramesh Lamba, Ex. PW 20/E

(which speak of recovery of third invitation card from accused Iftkhar Ahsan Malik

in Dehradoon) was scribed or written by PW 16 Inspector Kailash Singh Bisht but

PW 16 admitted in his cross examination that he never visited Dehradoon. Even

the police diary / case diary indicates that Inspector Kailash Singh Bisht never

visited Dehradoon. Confronted with this position no explanation was offered by

PW 16 for how the seizure memo Ex. PW 20/E came to be written by him.

48. Except for the disclosure statement of the accused PW 20/D and also

20/G there is no independent evidence to substantiate that accused was a

member of the banned militant outfit LeT. There is brought on record no

evidence whatsoever that accused Iftakar Ahsan Malik had had any meetings

or any contact with deceased militant Shams @ Parvez. It is also relevant to note

that this accused nowhere figures in the three disclosure statements of accused

Hamid Hussain Ex. PW 19/F, 19/G and 19/J nor he figures any where in the

disclosure statements of accused Mohd. Shariq Ex. PW 19/E and 19/H.

49. Further, the recovery of invitation card of passing out parade of IMA,

Dehradoon Ex. P-16/D proves nothing. Assuming evidence of PW 15 Sahil

Pando credible to the effect that accused Iftkhar Ahsan Malik had taken three

IMA passes from his room; there is no identification mark in the nature of any


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serial no. or the name of the guest who was supposed to have attended the

passing out parade. It is also pertinent to mention that the passing out parade

had already been held on 9th

and 10th

December 2004 and the same wereallegedly taken away by the accused from the room of PW 15 after 3-4 days

thereof. I do not understand the purpose of taking away IMA passes by the

accused of an event which had already occurred. Again, the recovery of two IMA

passes Ex. PW 8/12 vide seizure memo Ex. PW 3/8 from the accommodation at

17/28 Zakir Nagar in the absence of any identification mark or the name of the

guest on the same and without there being any evidence from the IMA itself does

not lead to the inference that accused Iftkhar Ahsan Malik was involved in a

conspiracy to mount a Fidayin attach on IMA.

50. There is more. The diary Ex. P 12 also proves nothing against the

accused. Accused in all fairness admitted in his statement u/s 313/281 Cr. PC.

that the holy inscriptions were written by him in the diary and there is brought on

record no evidence that the Quranic inscriptions or the writings in questioned

documents Ex. Q-1 to Q-22 were in any way incited hatred, violence or called

upon him or the Muslim Community to engage in Jihad or attack any military

establishment. So far as slip Ex. P-13 is concerned, it is in the evidence of PW

20 that the slip was placed in an envelop with the seal of 'BD' but memo Ex. PW

20/C indicate that it was seal with the seal of 'SD'. The witness explained that the

seal of 'SD' stood for Inspector Sanjay Dutt and seal of 'BD' stand for Inspector

Badrish Dutt. It is in evidence that PW 19 Badrish Dutt and PW 29 Sanjay Dutt

did not visit Dehradoon. Besides that memo Ex. PW 20/C refers to a slip in Hindi

whereas P-13 is in English. There is offered no explanation on this count. The

version of the accused Iftakar Ali that he was made to write P-13 under threat

and coercion while in custody of the police appears more plausible.

51. In the said view of the discussion, the prosecution miserably fails to

bring home its case against the accused Iftkhar Ahsan Malik u/s 18/19/20 of UAP

Act besides Section 120B of IPC.


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EVIDENCE AGAINST HAROON RASHID @ FAROOQ :

52. The Prosecution case is that name of the accused Haroon Rashid came

to light while effecting search of the accommodation of slain terrorist Shams at

house No. 17/18 Zakir Nagar on 06.03.2005 and vide memo Ex. PW 8/10, ATM

card and cheque book with some bank papers of Standard Chartered Bank in his

name were recovered. Accused Hamid Hussain in his 2nd disclosure statement

Ex. PW 19/G referred to collection of Rs. 49,000/- on two occasions sometime

around 20th January 2005 by the slain terrorist Shums through one Yunis Raja

which funds were sent from Singapore by one Farooq. It is in the third disclosure

statement Ex. PW 19/J that accused Hamid Hussain allegedly informed the

police that Farooq was a code name and the real name of the LeT activist was

Haroon Rashid who was funding terrorist activities. PW 19 Inspector Badrish Dutt

deposed that on 13.05.2005 he joined the investigation during which time they

interrogated the accused Haroon Rashid . PW 16 Inspector Kailash Bisht also

deposed that on 13.05.2005 he was associated in the investigation during which

time accused Haroon Rashid was interrogated. PW 16 Inspector Kailash Bisht

deposed that accused Haroon vide disclosure statement Ex. PW 16/B disclosed

that he used to receive money from his Pakistan mentor namely Abdul Ajiz and

concealed the money in a container of talcum powder. He deposed that the

talcum powder retrieved from the Malkhana and the container was broke upon

from the middle and 10,000 Singapore dollar were recovered which were sealed

with the seal of 'RS' and seized vide memo Ex.PW 16/D. Accused in his

statement u/s 313/281 Cr. PC has denied that any such money was recovered

from his personal belongings or from the talcum powder.

53. So far as the case of the prosecution that Rs. 49,000 was remitted by

accused Haroon Rashid through the Western Union Transfer on 10.01.2005,

15.01.2005, that is admitted by the accused. However, the accused denied the

prosecution case that the said money was collected by his brother Yunis and

handed over to Shams @ Parvez as per his instruction. PW 14 Mohd. Yunis


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Raja denied the prosecution case that he handed over any money to Shams @

Parvez. There is no other evidence that the money was ever collected by the

slain militants Shams @ Parvez. The version of the accused Haroon Rashid inhis statement u/s 313/281 Cr. PC is that he belongs to a poor family and at the

time of going to Singapore to undergo a course on marine engineering he had

taken Rs. 2 lakh including Rs. 1 lakh borrowed from his elder uncle. He stated

that on reaching Singapore on 07.12.2004, he found that so much money was

not required and, therefore he made arrangement to send the excess money

back to his father. The explanation seems more plausible, then the evidence led

by the prosecution witnesses.

54. Evidence of PW 16 Inspector Kailash Singh Bisht read with PW 26 Ld.

CMM indicate that accused Haroon Rashid had taken print outs of certain emails

Ex. PW 26/1 to 26/81 which was being operated by him in the code name

Farooq. Now these print outs were taken as per PW 26 in her presence on

18.05.2005. However a serious blow to the prosecution case is dealt in the

evidence of PW 19 Inspector Badrish Dutt who stated that during interrogation of

accused Haroon Rahsid on 13.05.2005 i.e much prior to 18.05.2005, the

accused had revealed the pass words of the email IDs which he was using

through which he used to contact his LeT handler namely Abdul Ajiz in Pakistan.

PW 19 deposed that he had taken print outs of the email IDs on the pass words

supplied by accused Haroon Rashid on 13.05.2005. It is born out from the record

that the copies of the print outs have not been filed with the charge sheet nor find

place in the police diary.

55. Sh. M. S. Khan has rightly urged that manipulation or tempering cannot

be ruled out from 13.05.2005 to 18.05.2005. There is affored no explanation as

to where that 75 pages of the print outs taken on 13.05.2005 have vanished.

Further, if PW 16 Inspector Kailash Singh Bisht was also associated in the

investigation on 13.05.2005, it is surprising why he has kept mum. All said and

done, even the print outs Ex. PW 26/1 and 26/81 if read against the accused


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Haroon Rashid do not imply anything except that email Ex.PW 26/40 is one

where the accused supposedly gave instructions some, say probably to his

mentor, as to how to make a call on his mobile without the same being traced.These emails bring out no evidence against the accused that he was involved in

any conspiracy to fund terrorist activities or to plan an attack on IMA Dehradoon.

If as per the disclosure statement the accused was in communication with their

mentors or handlers in code words, it was incumbent on the prosecution that

someone should have given evidence in the court as to what were the code

words and how the same were deciphered and what was their import or

relevance in this case. Need less to state that there is no evidence against the

accused that he was an active member of the banned militant outfit LeT. There is

brought on record no evidence whatsoever that accused Harood Rashid had had

any meetings or any contact with deceased militant Shams @ Parvez.

EVIDENCE AGAINST ACCUSED MAULANA DILAWAR KHAN AND MASOOD

AHMED @ IMAM SAHIB :

56. PW29 Inspector Sanjay Dutt deposed that on 12.3.05 accused Hamid

Hussain led ACP Rajbir Singh and staff to Welcome Area where PW24 Ran

Singh Additional SHO joined them and the raiding party was led by the accused

to house no. JB 6/199, Welcome, Delhi where the accused Dilawar Khan

standing outside the house was identified. He deposed that accused Dilawar

Khan got recovered one hand grenade from an upper slab on the second floor

kept in a bulb cover in a polythin ; that the same was sealed in the parcel with the

seal of RS and seized vide memo Ex. PW24/C ; that FSL Form was filled upand accused Dilawar Khan was arrested vide memo Ex. PW29/A and on

interrogation, he made a disclosure statement Ex. PW29/E. PW29 then deposed

that accused Hamid Hussain then took them to Baghwali Masjid, Welcome

where at his pointing out accused Masood Ahmed was arrested vide memo Ex.

PW29/F; that he was too interrogated and pursuant to his disclosure statement

Ex. PW29/H, the police party was taken to a park in front of a Masjid, Welcome


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and where the accused got recovered one chinese pistol with 24 live cartridges

(.30 bore) kept in a polythin after digging the earth in front of a fountain. He

deposed that the pistol and the cartridges were sealed and seized vide memoEx. PW20/J.

57. I am afraid evidence led by the prosecution as against both the accused

does not inspire confidence. First thing First, no evidence is brought on the

record that accused Dilawar Khan was residing in house no. JB6/199. PW13

Anwar Khan did not support the prosecution case and denied that accused was

residing in the said house. PW 13 produced the documents in support of the fact

that the above said house belonged him. As is apparent from the evidence of

police witnessess, no public witnesses were joined while effecting recovery of

hand grenade at the instance of accused Dilawar Khan nor PW13 who was

available at the alleged time, made a witness to the said recovery. Surprisingly,

PW20 Inspector Ramesh Lamba who deposed that he was a member of the

team that went for conducting the raid at the instance of accused Hamid Hussain

did not utter a single word about the recovery effected at the instance of accused

Dilawar Khan and he merely deposed about the alleged recovery at the instance

of the accused Masood Ahmed. Further PW24 Inspector Ran Singh stated that

police party after effecting recovery from accused Dilwar Khan went away to the

office of Special Cell while he went away back to his P.S. It is not believable that

if the police party had gone to arrest both the persons in the same locality, it

opted to include PW24 for one arrest and not for the other.

58. In other words, PW 24 contradicted the evidence of PW20 and for that

matter PW29 that accused Hamid Hussain after arrest of accused Dilawar Khan

took them to Baghwali Masjid where accused Masood Ahmed was arrested.

Again, no efforts were at all made to join public while effecting the alleged of

recovery of pistol and cartridges at the instance of the accused Masood

Ahmed. This despite the admission of PW20 and PW29 in their cross-

examination that the area in question was densely populated and public


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witnesses were available.

59. The alleged recovery of handgrenade etc. becomes all the more

doubtful considering that there is no evidence whatsoever that accused MaulanaDilawar Khan and Masood Ahmed were in any way involved in conspiracy or

preparation to mount a Fidayin attack on IMA, Dehradoon. Mr. Pancholi, Ld.

Counsel for the accused rightly brought fore the point that the shoot out at Uttam

Nagar had been widely covered by the print and the electronic media and had

the accused been involved in any kind of conspiracy, they would not have waited

till 12th or 13th of May 2005 to keep the incriminating articles in their possession.

It is also doubtful if accused Hamid Hussain was at all involved in identifying and

getting arrested the two accused persons since DD no. 6 dt. 12.3.05 Ex.

PW29/DA does not mention his name as the one who accompanied the police

team before proceeding to the Welcome area. None of the other witnesses

namely PW10 SI Kailash Bisht or even PW19 Inspector Badrish Dutt have

uttered even a word about the incident of arrest of accused Dilawar and

recovery of hand grenade from him.

60. In said view of the discussion, I find that the prosecution has miserably

failed to bring home the guilt of the accused persons u/s 120B IPC. Similarly no

case is made out against accused Maulana Dilawar Khan u/s 4 & 5 of E.S Act

and the prosecution fails to prove the charge of 25 Arms Act against accused

Masood Ahmed as well.

CHARGE U/S 18/20/23 OF UNLAWFUL ACTIVITIES AND PREVENTION ACT :

61. Briefly stated, Chapter IV of the Act provides for punishment for

indulging in terrorist activities. Section 15 defines a 'terrorist act' to mean

something done with the intent to threaten unity, integrity, security or sovereignty

of India or strike terror in the people by using bombs, dynamite or other explosive

etc. Section 16 provides punishment for committing a terrorist act. Section 18

provides punishment for conspiracy or attempt to commit, abet, advice, incite or


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facilitate commission of terrorist activities. Section20 provides punishment for

being a Member of Terrorist Gang or organization. Section 23 of the Act provides

that if a person when with intent to aid any terrorist act contravenes inter aliaprovisions of Explosive Substantive Act, 1908 or is in unauthorized possession of

any bomb dynamite or hazardous substance, becomes liable for enhance

penalty prescribed therein. It would be expedient to reproduce section 18 and 23

of the Act which are as under:

18.Punishment for conspiracy, etc. - Whoever conspires or attempts to

commit, or advocates, abets, advises or incites or knowingly facilitates

the commission of, a terrorist act or any act preparatory to the

commission of a terrorist act, shall be punishable with imprisonment for a

term which shall not be less than five years but which may extend toimprisonment for life, and shall also be liable to fine.

23.Enhanced penalties (1) If any person with intent to aid any terroristcontravenes any provisions of, or any rule made under the Explosives

Act, 1884 (4 of 1884) or the Explosive Substances Act, 1908 (6 of 1908)

or the Inflammable Substances Act, 1952 (20 of 1952) or the Arms Act,

1959 (54 of 1959) or is in unauthorized possession of any bomb,

dynamite or hazardous explosive substance or other lethal weapon or

substance capable of mass destruction or biological or chemical

substance of warfare, he shall, notwithstanding anything contained in any

of the aforesaid Acts or the rules made thereunder, be punishable with

imprisonment for a term which shall not be less than five years but whichmay extend to imprisonment for life, and shall also be liable to fine.

62. On a bare reading of section 18 of the said Act, even a conspiracy to

facilitate the commission of a terrorist act or any act preparatory to the

commission of terrorist act is also made punishable. At the cost of repetition, the

evidence against accused Hamid Hussain and Mohd. Sharig is brought home

that they in furtherance of criminal conspiracy were carrying RDX explosives

weighing about 10.5 Kg. RDX under the Explosive Substances Act is a special

category explosive substance u/s 2 (b) of the Explosive Substances Act 1908.

RDX stands for Royal Demolition Explosive. It is also known as Cycloite or

Hexogin. It is an explosive nitroamine widely used in military and industrial

application and not meant for common public use in any manner. This explosive

when combined with other necessary ingredients is capable of causing

devastatiting impact resulting in loss of human beings, injuries as well as


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damage to the property. Of course the explosives were without any Timer so to

say but it must be seen that such explosive substance is not meant to be used or

be found for any public purposes that one could perceive. To my mind, the act ofthe accused being found in possession of such explosive substance coupled

with the fact that they identified the hide out of the slain terrorist was nothing but

an act preparatory to commission of a terrorist act. The possession of RDX

leads to only one inference that it was meant to be used to cause death or

injuries to any person or persons or loss of, or damage to, or destruction of

property, as defined u/s 15 of the Act.

63. Having said that the offence u/s 20 of the Act is not brought home as

there is no iota of evidence that the accused persons were members of banned

terrorist outfit Lashker -e-Toiba. While there is a strong suspicion against them,

there is brought home no material on the record regarding the antecedents of the

accused persons. It is surprising to note that as per the case/police diary the

accused was also able to identify the residence of the kingpin Salim @ Doctor

@ Masalewala @ Salar who was then found to be in the custody of the Madhya

Pradesh Police but no efforts were made to link their connection and unearth

further incriminating material against them.

64. Before parting with this issue, offence u/s 23 of the Act is brought home

for the reasons which I will render hereinafter.

CHARGE U/S 4 & 5 EXPLOSIVE SUBSTANCES ACT 1908 :

65. Section 2 (b) of the Act provides that RDX i.e. Research and

Development Explosive is a Special Category Explosive Substance. Ex Facie,

the charge u/s 4 of the Act must fail since no act was committed by the accused

persons in relation to the RDX with requisite mens rea. Section 4 of the Act only

comes into play when some overt act is committed so as to cause or attempt to

cause an explosion. However, Section 5 of the Act is made out which provides

as under:

Punishment for making or possessing explosive under suspicious


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The manner and circumstances tell their own tale that the accused Mohd. Shariq

was found in conscious possession of the motorcycle and that would invite an

inference that he had the knowledge that the motorcycle was a stolen one andhe was keeping the possession thereof with dishonest intention. Therefore, the

offence u/s 411 IPC is clearly brought home against him by the prosecution.

CHARGE U/S 121, 121A, 122, 123, 120B IPC

68. In the causa celebre Parliament attack case titled State (NCT of Delhi)

v. Navjot Sandhu (Supra) it was observed:

The court must be cautious in adopting an approach which has the

effect of bringing within the fold of Section 121 all acts of lawless andviolent acts resulting in destruction of public properties etc., and all

acts of violent resistance to the armed personnel to achieve certain

political objectives. The moment it is found that the object sought to be

attained is of general public nature or has a political hue, the offensive

violent acts targeted against armed forces and public officials should

not be branded as acts of waging war. The expression waging war

should not be stretched too far to hold that all the acts of disrupting

public order and peace irrespective of their magnitude and

repercussions could be reckoned as acts of waging war against the

Govt. A balanced and realistic approach is called for in construing the

expression waging war irrespective of how it was viewed in the long

long past. An organized movement attended with violence and attacks

against the public officials and armed forces while agitating for therepeal of an unpopular or for preventing burdensome taxes were

viewed as acts of treason in the form of levying war. It is doubtful

whether such construction is in tune with the modern day perspectives

and standards. Another aspect on which a clarification is called for is

in regard to the observation made in the old decisions that neither the

number engaged nor the force employed, nor the species of weapons

with which they may be armed is really material to prove the offence

of levying/waging war. (Para18).

69. Their Lordships in the cited case observed that meaning of the word

War given in such provisions is not to be understood as war in the

conventional sense. It was observed that if the object and purpose is to strike at

the sovereign authority of the Ruler or the Government to achieve a public and

general purpose in contra-distinction to a private or a particular purpose that is

an important indicia of waging war. It was observed though every terrorist act

does not amount to waging war, certain terrorist acts also constitute the offence

of waging war and there is no dichotomy between the two. In the cited case, the


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act of the terrorists in launching an operation directed at the Parliament, a

sacroscent place in the mind and heart of people of India and an institution which

is symbol of democratic edifice of this Country, the acts were held to be wagingwar against the Government. In the ultimate analysis, intention and purposes of

the war like operations directed against the Government machinery is an

important critarian.

70. With the said proposition of law at the back of our mind, it may beindicated that if the conspiracy for launching or mounting a Fidayin attack on

IMA, Dehradoon had been substantiated by cogent and reliable evidence, it

would have certainly constituted as terrorist attack akin to preparing and

facilitating commission of an act