BOMB BLASTS AT REPUBLIC DAY - Ammonia nitrate when seized with fuse wires etc., amounts explosive substances -
Test Identification parade - mere delay in conduct is not fatal when conducted with in one month after the arrest and when witnesses identified in court - Sanction and consent a District collector can give under explosive substance Act - Apex court confirmed the judgment of High court and that of lower court =
8.30 a.m., there was a blast of explosive substances between Gate
No.12 and Gate No. 13, towards the southern and eastern side of Sawai
Man Singh Stadium Jaipur, where the State level function on Republic
Day was going to be celebrated.
Due to the sound
caused by the explosion, one Ramgopal Choudhary, an employee of the
Public Works Department, who was passing nearby, had met with an
injury on his ear for which he was immediately sent to the hospital.
On the basis of the FIR, offences under Section 120-B read with
Sections 307 and 427 IPC, under Section 3 of the Prevention of Damage
to Public Property Act, 1984 and under Section 3 of the Explosive
Substances Act, 1908 (for short “the 1908 Act”) and also under Section
9B of the Explosive Act, 1884 (for brevity “the 1884 Act”) were
registered and the investigation commenced. =
During the investigation, an anonymous letter in Urdu language
dated 1st June, 1997 was sent to the Superintendent of Police,
wherein some information was given -
In that letter, the names of some persons, i.e.,
Raies Beg of Agra, Dr. Abdul Hamid of Firozabad and Pappu
Puncturewala were mentioned. It was also mentioned that the ISI of
Pakistan was behind the bomb-blast. On the basis of the said
information, the investigating officer arrested five persons,
namely, Abdul Hamid, Raies Beg, Abdul Mateen, Pappu @ Saleem and
Chandra Prakash on various dates.
In the course of the investigation,
accused Pappu @ Saleem filed an application under Section 306 of
the Code of Criminal Procedure (for brevity “the Code”) before the
Chief Judicial Magistrate on 14.8.1997 who, by order dated
30.8.1997, authorized the Additional Chief Judicial Magistrate No.
6 to record the statement of the said accused under Section 164 of
the Code and thereafter, the Chief Judicial Magistrate, by a
reasoned order dated 20.9.1997, allowed the application. After
carrying out the detailed investigation, the police laid the charge-
sheet against the arrested accused persons, namely, Chandra
Prakash, Abdul Mateen, Raies Beg and Abdul Hamid.
The accused persons in their statements under Section 313 of the
Code took separate plea and hence, it is obligatory on our part to
record their pleas individually.
Abdul Mateen admitted that he is
a Pakistani and he had remained as a Pakistani always; that he had
never come to India before his arrest; that he did not know any
person in India; that he never visited the places, namely, Jaipur,
Farah, Roopwas, Agra Firozabad or any other city; and that he had
never given any information to the police and no recovery was made
by the police at his instance and he had never identified any
place.
The plea of Abdul Hamid was that he never gave any
information to the police during the investigation of the case and
he did not furnish any information about the shop of Mohit Jain, PW-
30, situated at Delhi and he had been falsely implicated.
Raies
Beg took the plea that due to communal riots he had been falsely
booked in the crime.
Accused Chandra Prakash, apart from false
implication, denied any relationship with Pappu @ Saleem, PW-1, and
further stated that no key was recovered from him and he did not
open any godown and room with his keys. He also took the stand
that he had not taken any room on rent in Krishi Upaz Mandi or any
shop near the power house on rent and disputed the recovery from
any shop.
The trial court, appreciating the oral and documentary
evidence on record, by its judgment and order dated 22.04.2000 in
Sessions Case no. 8/98, convicted all the accused and sentenced all
of them individually in respect of all the specific charges framed
against them.
Before Apex court -
a) The learned trial Judge as well as the High Court committed grave
error by coming to hold that sanction given under Section 7 of the
1908 Act cannot be found fault with, though the District
Magistrate, Jaipur was not examined as a witness to prove the order
of sanction.
b) The recovery made from the appellant, Chandra Prakash, at the
instance of information given by Pappu would not be admissible in
evidence because at the time of giving information, Pappu was an
accused and had not been treated as an approver which was done
later on by virtue of the order of the Court. The testimony of the
approver is not creditworthy since he has deposed that he was not
aware about the contents of the box that he was asked to carry by
the other accused persons.
c) The alleged recovery of ammonium nitrate from the custody of
accused, Chandra Prakash, either at the instance of Pappu @ Saleem,
PW-1, or by the accused-appellant cannot be accepted because Pappu
@ Saleem, PW-1 is an accomplice and in absence of any
corroboration, his evidence has to be thrown overboard and further
the case of prosecution that at the instance of the accused
articles were discovered is to be rejected inasmuch as Section 27
of the Evidence Act, 1872 could not have been made applicable to
the facts of the present case, for Chandra Prakash had not been
arrested by the time the alleged discovery took place.
d) Assuming the ammonium nitrate was recovered from the custody of
Chandra Prakash, the same would not make out any offence punishable
under any of the provisions of the 1908 Act or the 1884 Act, for
the simple reason that it does not come under the statutory
definition. Even if the language of Sections 2 and 3 of the 1908
Act as well as Section 9B of the 1884 Act are stretched, it would
not bring in its sweep the simple act of sale by Chandra Prakash
without any intention or knowledge about its use.
e) No independent charges were framed against the accused-appellant
under Sections 3, 4 and 5 of the 1908 Act but along with Section 6
of the 1908 Act and, therefore, conviction under the said provision
is absolutely fallacious.
Reddy and others v. State of Andhra Pradesh[2] would be
appropriate. In the said case, the Court has observed as follows:
-
“7. The last submission is that no sanction was obtained from
the Central Government as laid down under Section 7 of the
Explosive Substances Act for prosecuting the appellants for the
offences under the Explosive Substances Act. From the judgment
we do not find that any such objection was taken. In any event
from the record we find that the Collector granted permission
and this must be pursuant to the delegation of powers as
contemplated under Section 18(2) of the ‘TADA’.”
25. From the aforesaid, we come to the conclusion that the District
Magistrate had the authority to give consent for the prosecution.
CONSENT
In State of Tamil Nadu v. Sivarasan alias Raghu alias
Sivarasa and others[3], the Court, while dealing with the effect of
Section 7 of the 1908 Act, has observed as follows: -
“Section 7 does not require a sanction but only consent for
prosecuting a person for an offence under the Explosive
Substances Act. The object of using the word “consent” instead
of “sanction” in Section 7 is to have a purely subjective
appreciation of the matter before giving the necessary consent.”
27. Thereafter, the Court proceeded to state as follows: -
“We do not think that for obtaining consent of the Collector for
prosecuting the accused for the offence punishable under the
Explosive Substances Act it was necessary for the investigating
officer to submit the statements of witnesses also, who had
deposed about the movements of the accused and their activity of
manufacturing bombs and grenades. We, therefore, hold that the
consent given by the Collector was quite legal and valid.”
28. In view of the aforesaid, the approval/consent granted by the
District Magistrate in the obtaining factual matrix cannot be
treated as vitiated.
TEST IDENTIFICATION PARADE - AFTER ONE AND HALF YEAR
but done with in 3 weeks from the date of arrest
Recently, in Munna Kumar Upadhyay alias Munna Upadhyaya
v. State of Andhra Pradesh through Public Prosecutor, Hyderabad,
Andhra Pradesh[7], a two-Judge Bench has observed thus: -
“66. There was some delay in holding the identification parade.
But the delay per se cannot be fatal to the validity of holding
an identification parade, in all cases, without exception. The
purpose of the identification parade is to provide corroborative
evidence and is more confirmatory in its nature. No other
infirmity has been pointed out by the learned counsel appearing
for the appellant, in the holding of the identification parade.
The identification parade was held in accordance with law and
the witnesses had identified the accused from amongst a number
of persons who had joined the identification parade.”
K.S. RADHAKRISHNAN, DIPAK MISRA
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1155 OF 2014
(Arising out of S.L.P. (Crl.) 4419 of 2009)
Chandra Prakash … Appellant
Versus
State of Rajasthan …Respondent
WITH
CRIMINAL APPEAL NOS.1156-1157 OF 2014
(Arising out of S.L.P. (Crl.) 3524-3525 of 2010)
Abdul Hamid and another … Appellants
Versus
State of Rajasthan …Respondent
With
CRIMINAL APPEAL NO. 1160 OF 2014
(Arising out of S.L.P. (Crl.) Nos. 4105 of 2014
CRLMP 22781/2012)
Abdul Mateen … Appellant
Versus
State of Rajasthan …Respondent
J U D G M E N T
Dipak Misra, J.
On 26th January, 1996, a day of celebration and conscientious
remembrance of the “Red Letter Day” in the history of India because
26th January is the date in 1950, when our organic, inclusive, humane
and compassionate Constitution came into existence being given by the
people of this country to themselves and the nation has been obliged
to jubilate remembering the said important day in our national
history, for it chartered the path of many an emancipation and
conferred on the people the highly cherished fundamental rights; about
8.30 a.m., there was a blast of explosive substances between Gate
No.12 and Gate No. 13, towards the southern and eastern side of Sawai
Man Singh Stadium Jaipur, where the State level function on Republic
Day was going to be celebrated. Soon after the blast, Prahlad Singh,
the Station House Officer, Police Station lodged an FIR about 9.30
a.m. which was registered as FIR No. 39/1996. As per the FIR, when
the blast took place, the people who had assembled were asked to leave
the stadium so that there could be a check. During the check, it was
found that due to the blast, a big size crater had come into existence
at the scene of explosion. That apart, by the said explosion, the
sand hopped upward and fell on the places meant for sitting in the
stadium and also on the roof. The glasses of the windows of the
pavilion near the explosion had broken into pieces. At the time when
the explosion had occurred, only police personnel but no civilians
were present in that part of the stadium. The public at large, which
was present inside the Stadium, was informed to leave the Stadium so
that the check and security could be carried out. Due to the sound
caused by the explosion, one Ramgopal Choudhary, an employee of the
Public Works Department, who was passing nearby, had met with an
injury on his ear for which he was immediately sent to the hospital.
On the basis of the FIR, offences under Section 120-B read with
Sections 307 and 427 IPC, under Section 3 of the Prevention of Damage
to Public Property Act, 1984 and under Section 3 of the Explosive
Substances Act, 1908 (for short “the 1908 Act”) and also under Section
9B of the Explosive Act, 1884 (for brevity “the 1884 Act”) were
registered and the investigation commenced. Later on, the
investigation of the case was transferred to C.I.D(C.B.).
2. During the investigation, an anonymous letter in Urdu language
dated 1st June, 1997 was sent to the Superintendent of Police,
wherein some information was given which was alleged to have been
gathered by the senders who described themselves as well wishers
while they were in custody in the Central Jail, Jaipur, in respect
of the bomb-blast that took place on 26th January, 1996 at the SMS
Stadium, Jaipur. In that letter, the names of some persons, i.e.,
Raies Beg of Agra, Dr. Abdul Hamid of Firozabad and Pappu
Puncturewala were mentioned. It was also mentioned that the ISI of
Pakistan was behind the bomb-blast. On the basis of the said
information, the investigating officer arrested five persons,
namely, Abdul Hamid, Raies Beg, Abdul Mateen, Pappu @ Saleem and
Chandra Prakash on various dates.
3. During the investigation, the investigating agency recovered a live
time bomb from SMS Stadium and explosive items were recovered from
Roopwas, District Bharatpur. In the course of the investigation,
accused Pappu @ Saleem filed an application under Section 306 of
the Code of Criminal Procedure (for brevity “the Code”) before the
Chief Judicial Magistrate on 14.8.1997 who, by order dated
30.8.1997, authorized the Additional Chief Judicial Magistrate No.
6 to record the statement of the said accused under Section 164 of
the Code and thereafter, the Chief Judicial Magistrate, by a
reasoned order dated 20.9.1997, allowed the application. After
carrying out the detailed investigation, the police laid the charge-
sheet against the arrested accused persons, namely, Chandra
Prakash, Abdul Mateen, Raies Beg and Abdul Hamid.
4. All the accused persons abjured guilt, pleaded false implication
and, accordingly, faced trial.
5. The learned trial Judge framed different charges against the four
accused persons and we think that it would be apt to refer to the
charges framed against each of them. As far as Chandra Prakash is
concerned, the charges that were framed against him were under
Section 9B of the 1884 Act and under Sections 3, 4, 5 read with
Section 6 of the 1908 Act. As far as Abdul Mateen is concerned, he
was charged with the offences under Section 14 of the Foreigners
Act, 1946, under Sections 3, 4 and 5 of the 1908 Act, under Section
9B of the 1884 Act, under Section 3 of the Prevention of Damages to
Public Properties Act and under Sections 307, 118, 435 and 456 IPC.
As far as Raies Beg and Abdul Hamid are concerned, they were faced
with similar charges, namely, under Section 9B of the 1884 Act,
under Sections 3, 4 and 5 read with Section 6 of the 1908 Act and
under Sections 307/120B, 118/120B and 435/120B IPC.
6. To bring home the charges against the accused persons, the
prosecution examined as many as 78 witnesses and brought on record
exhibits P-1 to P-296. In defence, no witness was examined on
behalf of any of the accused persons. However, documentary
evidence was produced by them, i.e., exhibits D-1 to D-5. We shall
refer to the relevant parts of the testimonies of the vital
witnesses and advert to the documents which have been stressed and
emphasized upon by the prosecution at a later stage.
7. The accused persons in their statements under Section 313 of the
Code took separate plea and hence, it is obligatory on our part to
record their pleas individually. Abdul Mateen admitted that he is
a Pakistani and he had remained as a Pakistani always; that he had
never come to India before his arrest; that he did not know any
person in India; that he never visited the places, namely, Jaipur,
Farah, Roopwas, Agra Firozabad or any other city; and that he had
never given any information to the police and no recovery was made
by the police at his instance and he had never identified any
place. The plea of Abdul Hamid was that he never gave any
information to the police during the investigation of the case and
he did not furnish any information about the shop of Mohit Jain, PW-
30, situated at Delhi and he had been falsely implicated. Raies
Beg took the plea that due to communal riots he had been falsely
booked in the crime. Accused Chandra Prakash, apart from false
implication, denied any relationship with Pappu @ Saleem, PW-1, and
further stated that no key was recovered from him and he did not
open any godown and room with his keys. He also took the stand
that he had not taken any room on rent in Krishi Upaz Mandi or any
shop near the power house on rent and disputed the recovery from
any shop. The trial court, appreciating the oral and documentary
evidence on record, by its judgment and order dated 22.04.2000 in
Sessions Case no. 8/98, convicted all the accused and sentenced all
of them individually in respect of all the specific charges framed
against them. The offence for which each of them had faced trial
has been already mentioned hereinabove. All the accused had been
sentenced separately by the learned trial Judge.
8. Accused Abdul Mateen was sentenced to undergo five years rigorous
imprisonment and a fine of Rs.10,000/-, in default of payment of
fine to further undergo one year’s simple imprisonment under
Section 14 of the Foreigners Act; ten years rigorous imprisonment
and a fine of Rs.20,000, in default to further undergo two years’
simple imprisonment under Section 4 of the Prevention of Damages to
Public Property Act; three years rigorous imprisonment and a fine
of Rs.3,000/-, in default to further undergo six months’ simple
imprisonment under Section 456 IPC; to undergo ten years rigorous
imprisonment and a fine of Rs.10,000/-, in default to further
undergo two years’ simple imprisonment under Section 307 read with
Section 120B IPC; seven years rigorous imprisonment and a fine of
Rs.7,000/-, in default to further undergo one and half years’
simple imprisonment under Section 435 read with Section 120B IPC;
five years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment under
Section 118 read with Section 120B IPC; two years rigorous
imprisonment and a fine of Rs.2,000/-, in default to further
undergo three months’ simple imprisonment under Section 9B of the
1884 Act; imprisonment for life and a fine of Rs.20,000/- in
default to further undergo three years’ simple imprisonment under
Section 3 of the 1908 Act; seven years rigorous imprisonment and a
fine of Rs.7,000/-, in default to further undergo one and half
years’ simple imprisonment under Section 4 of the 1908 Act; and
five years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment under
Section 5 of the 1908 Act.
9. Accused Chandra Prakash was sentenced to undergo two years rigorous
imprisonment and a fine of Rs.2,000/-, in default to further
undergo three months’ simple imprisonment under Section 9B of the
1884 Act; ten years rigorous imprisonment and a fine of Rs.10,000/-
, in default to further undergo two years’ simple imprisonment
under Section 3 read with Section 6 of the 1908 Act; seven years
rigorous imprisonment and a fine of Rs.7,000/-, in default to
further undergo one and half years’ simple imprisonment under
Section 4 read with Section 6 of the 1908 Act; and five years
rigorous imprisonment and a fine of Rs.5,000/-, in default to
further undergo one year’s simple imprisonment under Section 5 read
with Section 6 of the 1908 Act.
10. Accused Abdul Hamid and Raies Beg were sentenced to undergo two
years rigorous imprisonment and a fine of Rs.2,000/-, in default to
further undergo three months’ simple imprisonment; ten years
rigorous imprisonment and a fine of Rs.10,000/-, in default to
further undergo two years simple imprisonment under Section 307
read with Section 120B IPC; seven years rigorous imprisonment and a
fine of Rs.7,000/-, in default to further undergo one and half
years’ simple imprisonment under Section 435 read with Section 120B
IPC; five years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment under
Section 118 read with Section 120B IPC; ten years rigorous
imprisonment and a fine of Rs.10,000/-, in default to further
undergo two years’ simple imprisonment under Section 3 read with
Section 6 of the 1908 Act; seven years rigorous imprisonment and a
fine of Rs.7,000/-, in default to further undergo one and half
years’ simple imprisonment under Section 4 read with Section 6 of
the 1908 Act; and five years rigorous imprisonment and a fine of
Rs.5,000/-, in default to further undergo one year’s simple
imprisonment under Section 5 read with Section 6 of the 1908 Act.
11. At this juncture, we think it appropriate to state the findings
recorded by the learned trial Judge against each of the accused.
As far as Abdul Mateen is concerned, the trial court held that it
was clear from the evidence of GPS Wirk, PW-69, Assistant
Commander, BSF, that Mhd. Ashlam Baba was the financial head of a
terrorist organization by the name of “Harkat-ul-Ansar”, and during
the course of investigation, the accused Abdul Mateen was arrested
from Srinagar and no passport or visa was found in his possession.
The offence punishable under Section 14 of the Foreigners Act which
had been levelled against him was established beyond reasonable
doubt. The live time bomb was duly recovered and accused Abdul
Mateen had exclusive knowledge and it was he who planted the time
bomb at that place and it was proven from the testimonies of the
witnesses. From the evidence of the approver, Pappu, and the
information under Section 27 of the Evidence Act, it could be
concluded that prior to 26.1.1996, two time bombs were implanted by
accused Abdul Mateen. It was clear from the testimonies of Jai
Narayan, PW-6, and Gopal Saini, PW-7, that Abdul Mateen had led to
the recovery of the bomb and the charge of crime punishable under
Section 9B of the Explosive Act levelled against the accused Abdul
Mateen has been proved beyond reasonable doubt.
12. In respect of Raies Beg and Abdul Hamid, the trial court held that
Abdul Hamid had been visiting accused Chandra Prakash at Roopbas
quite frequently and both the accused persons had helped accused
Abdul Mateen in the commission of the offence. They used to meet
at the Madarsa of village Farah and the conspiracy was hatched.
The learned trial Judge came to hold that the involvement of the
said accused persons in the commission of the crime was reflectible
from the evidence of number of witnesses and the prosecution had
established their role beyond any shadow of doubt.
13. Pertaining to Chandra Prakash, the Court held that explosive
substances including gelatin and dynamite in huge quantity were
recovered from his possession on 1.8.1997. Scanning the evidence,
it recorded that the dynamite was used in both the bombs. He
further opined that Pappu @ Saleem, PW-1, was an associate and
colleague of accused Abdul Mateen and prior to the incident, the
explosive substance was brought from Chandra Prakash in village
Farah, where Pappu @ Saleem used to live with him. That apart,
Chandra Prakash was identified by Pappu and the key of the godown
was with the accused and he opened the lock of the said godown from
which 28 kattas of ammonium nitrate were recovered. It was also
clear from the evidence of Chetandass Rawatani, PW-34, that the
goods which were recovered from the accused were utilized for the
preparation of the explosive substance.
14. On the basis of the aforesaid findings and conclusions, the learned
trial Judge convicted the accused persons and sentenced them as has
been stated hereinbefore.
15. Being grieved by the aforesaid conviction and sentence, the accused
persons preferred separate appeals before the High Court being D.B.
Criminal (Jail) Appeal No. 318 of 2000, D.B. Criminal Appeal Nos.
189 of 2000, 258 of 2000 and 369 of 2000. The State filed
application for grant of leave (D.B. Criminal Leave to Appeal No.
26 of 2008) with an application for condonation of delay of seven
years and nine months which was taken up along with the appeals
preferred by the accused persons and the said appeal was dismissed
on the ground of delay. However, it may be stated here that the
High Court also addressed to the merits of the case of the State
which pertained to enhancement of sentence and did not find any
substance in the same. As regards the appeals preferred by the
accused persons, the appellate court did not perceive any merit
and, resultantly, dismissed the same by way of judgment and order
dated 3.2.2009. Hence, the assail is to the judgment of conviction
and order of sentence by the applications of special leave
petitions.
16. Leave granted in all the special leave petitions.
17. As all the appeals relate to defensibility of common judgment
passed by the High Court in respect of all the accused-appellants,
they are disposed of by a singular judgment.
18. Mr. Sushil K. Jain, learned senior counsel for the appellants,
criticizing the judgment of the trial court and that of the High
Court, has raised the following contentions: -
a) The learned trial Judge as well as the High Court committed grave
error by coming to hold that sanction given under Section 7 of the
1908 Act cannot be found fault with, though the District
Magistrate, Jaipur was not examined as a witness to prove the order
of sanction.
b) The recovery made from the appellant, Chandra Prakash, at the
instance of information given by Pappu would not be admissible in
evidence because at the time of giving information, Pappu was an
accused and had not been treated as an approver which was done
later on by virtue of the order of the Court. The testimony of the
approver is not creditworthy since he has deposed that he was not
aware about the contents of the box that he was asked to carry by
the other accused persons.
c) The alleged recovery of ammonium nitrate from the custody of
accused, Chandra Prakash, either at the instance of Pappu @ Saleem,
PW-1, or by the accused-appellant cannot be accepted because Pappu
@ Saleem, PW-1 is an accomplice and in absence of any
corroboration, his evidence has to be thrown overboard and further
the case of prosecution that at the instance of the accused
articles were discovered is to be rejected inasmuch as Section 27
of the Evidence Act, 1872 could not have been made applicable to
the facts of the present case, for Chandra Prakash had not been
arrested by the time the alleged discovery took place.
d) Assuming the ammonium nitrate was recovered from the custody of
Chandra Prakash, the same would not make out any offence punishable
under any of the provisions of the 1908 Act or the 1884 Act, for
the simple reason that it does not come under the statutory
definition. Even if the language of Sections 2 and 3 of the 1908
Act as well as Section 9B of the 1884 Act are stretched, it would
not bring in its sweep the simple act of sale by Chandra Prakash
without any intention or knowledge about its use.
e) No independent charges were framed against the accused-appellant
under Sections 3, 4 and 5 of the 1908 Act but along with Section 6
of the 1908 Act and, therefore, conviction under the said provision
is absolutely fallacious.
19. Mr. Balaji Srinivasan, learned counsel appearing for the
appellants, Abdul Hamid and Raies Beg, submitted as under:-
(A) The prosecution has failed to prove the nexus of the accused-
appellants with the co-accused Abdul Mateen in the crime and
nothing has been brought on record to establish the allegations.
The only evidence that has been recorded is that Abdul Hamid
used to meet Abdul Mateen frequently at village Farah.
B) There is no recovery of explosive substance or any incriminating
materials from the appellant’s house and in the absence of any
recovery, the appellant cannot be roped in the crime.
C) The allegation of the prosecution with regard to the relation of
the appellant with Abdul Mateen does not have any substance and, in
any case, there is no proof to establish the same.
D) The bomb blast at SMS Stadium, Jaipur took place on 26.01.1996 and
the accused was arrested on 8.06.1997 and identification parade was
conducted on 25.06.1997 about one and half years after the
incident. This aspect vitiates the identification parade and
creates a dent in the case of the prosecution for which the
appellants should be given the benefit of doubt.
20. Mr. Atul Kumar, learned counsel appearing for the appellant Abdul
Mateen, in addition to the contentions raised by Mr. Jain and Mr.
Balaji, has contended that no consent has been taken under Section
7 of the 1908 Act from the Central Government and hence, the entire
trial is vitiated.
21. Dr. Manish Singhvi, learned Additional Advocate General appearing
for the State of Rajasthan, supporting the judgment of the High
Court, has submitted as follows: -
i) The sanction given by the District Magistrate, on a perusal,
would show application of mind and, by no stretch of
imagination, it can be regarded as invalid in law.
ii) The recovery at the instance of an accused under Section 27 of
the Indian Evidence Act is admissible in evidence and the
information given by Pappu, PW-1, which led to the recovery of
huge quantity of explosives would per se be admissible in
evidence and this evidence is not to be treated as inadmissible
merely because the accused at the relevant point of time had
subsequently become the approver.
iii) The recovery of explosives by the accused, Chandra Prakash, by
opening the keys of the godown would be a relevant fact and
admissible under Section 8 of the Evidence Act, irrespective of
the fact that the conduct falls within the purview of Section 27
of the Evidence Act.
iv) The recovery of the explosive substance has been made by the
police vide memo Ex. P-42 during the search and seizure
operations. Chetan Das Rawatani, PW-34, Explosive Expert, has
stated that the articles recovered in Ex. P-42 were explosive
articles and the same has also been proved by the FSL Report,
Ex. P-234.
v) The evidence of the approver Pappu, PW-1, is admissible as
substantive evidence u/s 133 of the Evidence Act. In the
evidence of the approver, it has been mentioned that the
accused, Chandra Prakash, was engaged in the supply of materials
for solicitation of money for the commission of offence under
the 1908 Act. Possession of huge quantity of ammonium nitrate
without any plausible explanation by the accused, Chandra
Prakash, corroborates the evidence of the approver.
22. First, we shall deal with the issue of sanction. Section 7 of the
1908 Act reads as follows: -
“7. Restriction on trial of offences. – No Court shall proceed
to the trial of any person for an offence against this Act
except with the consent of the District Magistrate.”
23. The learned counsel for Abdul Mateen has submitted that no consent
has been granted by the Central Government. In this context, we
may refer to the decision in State of M.P. v. Bhupendra Singh[1].
In the said case, the consent for the prosecution was granted by
the Additional District Magistrate by notification dated 24.4.1995
issued by the State Government. The High Court has quashed the
proceeding as there was no sanction. This Court concurred with the
said view on the ground that it was within the domain of the
Central Government to delegate the authority and, in fact, the
Central Government vide notification dated 2.12.1978 has entrusted
to the District Magistrates in the State of Madhya Pradesh its
consent under Section 7 of the 1908 Act. Thus, there could be
delegation by the Central Government to the District Magistrates.
24. It is relevant to note here that the consent was given by the
concerned District Magistrate as Ext. P-277/278. His authority was
not questioned. What was urged before the Court was that there had
been no application of mind inasmuch as the relevant materials were
not placed before him while according sanction. When such a point
was not raised, the consequences have to be different. In this
regard, reference to a two-Judge Bench decision in Erram Santosh
Reddy and others v. State of Andhra Pradesh[2] would be
appropriate. In the said case, the Court has observed as follows:
-
“7. The last submission is that no sanction was obtained from
the Central Government as laid down under Section 7 of the
Explosive Substances Act for prosecuting the appellants for the
offences under the Explosive Substances Act. From the judgment
we do not find that any such objection was taken. In any event
from the record we find that the Collector granted permission
and this must be pursuant to the delegation of powers as
contemplated under Section 18(2) of the ‘TADA’.”
25. From the aforesaid, we come to the conclusion that the District
Magistrate had the authority to give consent for the prosecution.
26. The next facet of the challenge pertaining to sanction is that the
sanctioning authority had not perused the relevant materials. The
learned trial Judge, upon scrutiny of Ext. P-277/278, has expressed
the opinion that the approval had been granted after perusal of the
materials on record. The High Court has observed that the
consent/sanction order is a self-speaking and detailed one. It has
also been held that all the facts have been taken into
consideration by the District Magistrate and the entire police
diary was made available to him at the time of grant of
sanction/approval. With regard to the authority of consent as
postulated in the 1908 Act, reference to certain authorities would
be fruitful. In State of Tamil Nadu v. Sivarasan alias Raghu alias
Sivarasa and others[3], the Court, while dealing with the effect of
Section 7 of the 1908 Act, has observed as follows: -
“Section 7 does not require a sanction but only consent for
prosecuting a person for an offence under the Explosive
Substances Act. The object of using the word “consent” instead
of “sanction” in Section 7 is to have a purely subjective
appreciation of the matter before giving the necessary consent.”
27. Thereafter, the Court proceeded to state as follows: -
“We do not think that for obtaining consent of the Collector for
prosecuting the accused for the offence punishable under the
Explosive Substances Act it was necessary for the investigating
officer to submit the statements of witnesses also, who had
deposed about the movements of the accused and their activity of
manufacturing bombs and grenades. We, therefore, hold that the
consent given by the Collector was quite legal and valid.”
28. In view of the aforesaid, the approval/consent granted by the
District Magistrate in the obtaining factual matrix cannot be
treated as vitiated.
29. The third aspect of challenge to the sanction is that the District
Magistrate has not been examined as a witness to prove the order of
sanction. On a perusal of the document, we find that the same has
been proven by the competent person and the document has been
marked as Ext. P-277/278. We are of the considered opinion that
the examination of the District Magistrate to prove his consent is
really not necessary.
30. In view of the aforesaid analysis, the submission relating to the
invalidity of the consent, as stipulated in Section 7 of the 1908
Act, does not commend us and, accordingly, the same stands
rejected.
31. The next issue, to which we should advert to, pertains to the delay
in holding the test identification parade. The submission of Mr.
Balaji Srinivasan, learned counsel appearing for accused Abdul
Hamid and Raies Beg, is that there has been enormous delay in
conducting the test identification parade in respect of accused
Abdul Hamid and Raies Beg. There is no dispute that both of them
were arrested on 8.6.1997 and the test identification parade was
held on 25.6.1997. Thus, it is evident that they were arrested
long after the occurrence but the test identification parade was
held within a period of three weeks from the date of arrest. As
the analysis of the trial court shows, they could not have been
arrested as the materials could not be collected against them and
things got changed at a later stage. In this regard, we may refer
with profit to the decision in Ramanand Ramnath v. State of
M.P.[4], wherein identification parade was held within a period of
one month from the date of arrest. This Court observed that there
was no unusual delay in holding the test identification parade.
32. That apart, the witnesses, namely Prem Prakash Gupta, PW-78, and
Mohit Jain, PW-30, have identified them in the Court. In State of
Maharashtra v. Suresh[5], it has been held as follows: -
“We remind ourselves that identification parades are not
primarily meant for the court. They are meant for investigation
purposes. The object of conducting a test identification parade
is twofold. First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is really the one
who was seen by them in connection with the commission of the
crime. Second is to satisfy the investigating authorities that
the suspect is the real person whom the witnesses had seen in
connection with the said occurrence.”
33. The said legal position has been reiterated in Anil Kumar v. State
of U.P.[6] Recently, in Munna Kumar Upadhyay alias Munna Upadhyaya
v. State of Andhra Pradesh through Public Prosecutor, Hyderabad,
Andhra Pradesh[7], a two-Judge Bench has observed thus: -
“66. There was some delay in holding the identification parade.
But the delay per se cannot be fatal to the validity of holding
an identification parade, in all cases, without exception. The
purpose of the identification parade is to provide corroborative
evidence and is more confirmatory in its nature. No other
infirmity has been pointed out by the learned counsel appearing
for the appellant, in the holding of the identification parade.
The identification parade was held in accordance with law and
the witnesses had identified the accused from amongst a number
of persons who had joined the identification parade.”
34. In view of the aforesaid, the submission that there has been delay
in holding the test identification parade does not really affect
the case of the prosecution. It is also noteworthy that the
witnesses had identified the accused persons in court and nothing
has been elicited in the cross-examination even to create a doubt.
Thus, we repel the submission advanced by the learned counsel for
accused Abdul Hamid and Raies Beg.
35. The next facet to be addressed is whether the evidentiary value of
the testimony of approver Pappu, PW-1, is required to be
considered. Learned counsel for the State has drawn our attention
to Section 133 and illustration (b) to Section 114 of the Indian
Evidence Act, 1872. They read as under: -
“133. Accomplice .- An accomplice shall be a competent witness
against an accused person; and a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of
an accomplice."
Illustration (b) to Section 114
“(b) The Court may presume that an accomplice is unworthy of
credit, unless he is corroborated in material particulars.”
36. The aforesaid two provisions came to be considered in Bhiva Doulu
Patil v. State of Maharashtra[8] wherein the Court held as follows:
-
“The combined effect of Sections 133 and Illustration (b)
to Section 114, may be stated as follows:
According to the former, which is a Rule of law, an
accomplice is competent to give evidence and according to the
latter, which is a Rule of practice it is almost always unsafe
to convict upon his testimony alone. Therefore, though the
conviction of an accused on the testimony of an accomplice
cannot be said to be illegal yet the courts will, as a matter of
practice, not accept the evidence of such a witness without
corroboration in material particulars.”
37. In Mohd. Husain Umar Kochra etc. v. K.S. Dalipsinghji and another
etc.[9], the Court observed thus: -
“... The combined effect of Sections 133 and 114, Illustration
(b) is that though a conviction based upon accomplice evidence
is legal, the Court will not accept such evidence unless it is
corroborated in material particulars. The corroboration must
connect the accused with the crime. It may be direct or
circumstantial. It is not necessary that the corroboration
should confirm all the circumstances of the crime. It is
sufficient if the corroboration is in material particulars. The
corroboration must be from an independent source. One accomplice
cannot corroborate another.”
38. Having stated the legal position with regard to the statutory
provisions, presently we shall proceed to consider the requisite
tests to be applied to accept the credibility of the testimony of
the approver. At this juncture, we may sit in a time machine and
quote a passage from Sarwan Singh S/o Rattan Singh v. State of
Punjab[10] wherein it has been held as follows: -
“...An accomplice is undoubtedly a competent witness under the
Indian Evidence Act. There can be, however, no doubt that the
very fact that he has participated in the commission of the
offence introduces a serious stain in his evidence and Courts
are naturally reluctant to act on such tainted evidence unless
it is corroborated in material particulars by other independent
evidence. It would not be right to expect that such independent
corroboration should cover the whole of the prosecution story or
even all the material particulars. If such a view is adopted it
would render the evidence of the accomplice wholly superfluous.
On the other hand, it would not be safe to act upon such
evidence merely because it is corroborated in minor particulars
or incidental details because, in such a case, corroboration
does not afford the necessary assurance that the main story
disclosed by the approver can be reasonably and safely accepted
as true. But it must never be forgotten that before the court
reaches the stage of considering the question of corroboration
and its adequacy or otherwise, the first initial and essential
question to consider is whether even as an accomplice the
approver is a reliable witness. If the answer to this question
is against the approver then there is an end of the matter, and
no question as to whether his evidence is corroborated or not
falls to be considered. In other words, the appreciation of an
approver's evidence has to satisfy a double test. His evidence
must show that he is a reliable witness and that is a test which
is common to all witnesses. If this test is satisfied the second
test which still remains to be applied is that the approver's
evidence must receive sufficient corroboration. This test is
special to the cases of weak or tainted evidence like that of
the approver.
8...Every person who is a competent witness is not a reliable
witness and the test of reliability has to be satisfied by an
approver all the more before the question of corroboration of
his evidence is considered by criminal courts”.
39. In Ravinder Singh v. State of Haryana[11], this Court has observed
that: -
“An approver is a most unworthy friend, if at all, and he,
having bargained for his immunity, must prove his worthiness for
credibility in court. This test is fulfilled, firstly, if the
story he relates involves him in the crime and appears
intrinsically to be a natural and probable catalogue of events
that had taken place. … Secondly, once that hurdle is crossed,
the story given by an approver so far as the accused on trial is
concerned, must implicate him in such a manner as to give rise
to a conclusion of guilt beyond reasonable doubt.”
40. Similar principles have been reiterated in Mrinal Das and Ors. v.
State of Tripura[12].
41. In A. Devendran v. State of T.N.[13], the Court has registered the
view that there cannot be any dispute with regard to the
proposition that ordinarily an approver’s statement has to be
corroborated in material particulars. Certain clinching features of
involvement disclosed directly to an accused by an approver must be
tested qua each accused from independent credible evidence and on
being satisfied, the evidence of an approver can be accepted. The
Court further observed that the extent of corroboration that is
required before the acceptance of the evidence of the approver
would depend upon the facts and circumstances of the case, however,
the corroboration required must be in material particulars
connecting each of the accused with the offence, or in other words,
the evidence of the approver implicating several accused persons in
the commission of the offence must not only be corroborated
generally but also qua each accused but that does not mean that
there should be independent corroboration of every particular
circumstance from an independent source. The court proceeded to
state that all that is required is that there must be some
additional evidence rendering it probable that the story of the
accomplice is true and the corroboration could be both by direct
or circumstantial evidence. Be it noted, the said principle was
stated on the basis of pronouncements in Ramanlal Mohanlal Pandya
v. State of Bombay[14], Tribhuvan Nath v. State of Maharashtra[15],
Sarwan Singh v. State of Punjab (supra), Ram Narain v. State of
Rajasthan[16] and Balwant Kaur v. Union Territory of
Chandigarh[17].
42. In Chandan and another v. State of Rajasthan[18], the Court held
that so far as the question about the conviction based on the
testimony of the accomplice is concerned, the law is settled and it
is established as a rule of prudence that the conviction could only
be based on the testimony of the accomplice if it is thought
reliable as a whole and if it is corroborated by independent
evidence either direct or circumstantial, connecting the accused
with the crime.
43. In Haroon Haji Abdulla v. State of Maharashtra[19], the view in
this regard was expressed in the following terms: -
“An accomplice is a competent witness and his evidence could be
accepted and a conviction based on it if there is nothing
significant to reject it as false. But the rule of prudence,
ingrained in the consideration of accomplice evidence, requires
independent corroborative evidence first of the offence and next
connecting the accused, against whom the accomplice evidence is
used, with the crime.”
44. In Major E.G. Barsay v. State of Bombay[20], it has been observed
that this Court had never intended to lay down that the evidence of
an approver and the corroborating pieces of evidence should be
treated in two different compartments, that is to say, the court
shall first have to consider the evidence of the approver dehors
the corroborated pieces of evidence and reject it if it comes to
the conclusion that his evidence is unreliable; but if it comes to
the conclusion that it is reliable, then it will have to consider
whether that evidence is corroborated by any other evidence.
45. In Renuka Bai alias Rinku alias Ratan and another v. State of
Maharashtra[21], the Court held that the evidence of the approver
is always to be viewed with suspicion especially when it is
seriously suspected that he is suppressing some material facts.
46. In Ranjeet Singh and another v. State of Rajasthan[22], the Court
observed that while looking for corroboration, one must first look
at the broad spectrum of the approver’s version and then find out
whether there is other evidence to lend assurance to that version.
The nature and extent of the corroboration may depend upon the
facts of each case and the corroboration need not be of any direct
evidence that the accused committed the crime. The corroboration
even by circumstantial evidence may be sufficient.
47. Keeping in view the aforesaid principles which relate to the
acceptance of the evidence of an approver, we have bestowed our
anxious consideration and carefully perused the judgment of the
trial court and that of the High Court. Learned counsel for the
parties have taken us through the evidence of Pappu @ Saleem, PW-1.
He has clearly deposed that Abdul Mateen who is also known as
Iqbal, used to visit the Madarsa at village Farah. Abdul Hameed
and Abdul Mateen were seen at village Farah many times without any
reason before the incicent. As far as Abdul Hameed and Raies Beg
are concerned, he has deposed that both the accused used to go to
the house of Chandra Prakash in Roopwas to collect the “masala” in
a cover box. Both of them used to meet Abdul Mateen in the Madarsa
at village Farah on a number of occasions. He used to contact
Abdul Mateen from Firozabad many times and the watches fixed with
bombs as timers were given at Farah by Abdul Hameed to make the
bomb. It has also come out in his evidence that Pappu along with
Accused Raies Beg @ Raies Ahmad and other accused persons used to
visit the Madarsa at village Farah. His evidence also shows that
Raies Beg and Pappu used to bring explosive from Roopwas to village
Farah and he has mentioned that Raies Beg had brought five boxes of
“masala” for Rs.10,000/- from the house of Chandra Prakash and
those boxes were unloaded at the Madarsa in Farah. Pappu was asked
to carry the boxes along with Raies Beg and Abdul Hameed. He has
clearly deposed about the conspiracy that was told to him by
accused Abdul Mateen. As far as Chandra Prakash is concerned, it
had come in the evidence that though Pappu used to visit his house
at Roopwas along with other accused persons, yet he used to stay
outside the house of Chandra Prakash and the others used to go to
bring “masala” from the house of Chandra Prakash. The alleged
“masala” used to be brought in boxes from time to time to the
associates of Raies Beg and Abdul Hameed who used to come to
Madarsa at Farah.
48. From the analysis of the aforesaid evidence, it is clear that Pappu
as approver has implicated himself in the crime. He has not made
any effort to give any statement which is exculpatory. He has
spoken quite graphically about the involvement of all the accused
persons. Mr. Jain, learned senior counsel appearing for the
appellant, would contend that he has used the word “masala” but not
ammonium nitrate, but Pappu has clarified that though he was not
aware what was contained in the boxes, yet he was told by the other
accused persons later on that it contained certain explosive
substances. The said aspect has been corroborated from other
ocular evidence as well as the seizure.
49. Presently, we shall advert to the various facets of corroboration
in evidence against the accused persons. As far as Chandra Prakash
is concerned, on the basis of the approver Chandra Prakash was
arrested on 1.8.1997 vide Ext.P-37. On the basis of the
information of the accused, Chandra Prakash, the Investigating
Officer searched his house and godown and recovered 28 boxes of
ammonium nitrate. It has come out in the evidence that Chandra
Prakash opened the lock of the godown the key of which was in his
possession. Bhup Singh, PW-32, eye witness to the seizure of
articles from the godown of Chandra Prakash, has categorically
stated that the accused Chandra Prakash led to the recovery of red
and blue coloured bundles from the godown of the building. The
office of PW-32 was also in the said building. From the godown,
fuse wires and five kilograms of grey coloured material was also
recovered. The Investigating Officer, M.M. Atray, PW-71, has also
proven the factum of recovery. Shivnath Kuriya, PW-22, who had
accompanied the investigating team, has deposed that the explosive
which was used in the live bomb had ammonium nitrate/gelaltine.
Chetan Das Rawatani, PW-34, who is an expert witness in respect of
explosives, approved his report Ext. P-49 and has deposed that the
ammonium nitrate that was seized from the godown of Chandra Prakash
was in such a condition that it could be used to prepare a bomb.
50. Mr. Jain, as has been stated earlier, has seriously criticized
about the recovery from Chandra Prakash on the ground that when he
led to the discovery of the articles seized, he was not arrested.
In this context, we refer with profit to the decision in Mohd. Arif
alias Ashfaq v. State (NCT of Delhi)[23] wherein the Court opined
thus: -
“The essence of the proof of a discovery under Section 27 of the
Evidence Act is only that it should be credibly proved that the
discovery made was a relevant and material discovery which
proceeded in pursuance of the information supplied by the
accused in the custody. How the prosecution proved it, is to be
judged by the court but if the court finds the fact of such
information having been given by the accused in custody is
credible and acceptable even in the absence of the recorded
statement and in pursuance of that information some material
discovery has been effected then the aspect of discovery will
not suffer from any vice and can be acted upon.”
51. In this context, we may refer to the authority in Vikram Singh and
others v. State of Punjab[24], wherein while interpreting Section
27 of the Evidence Act, the Court opined that a bare reading of the
provision would reveal that a “person must be accused of any
offence” and that he must be “in the custody of a police officer”
and it is not essential that such an accused must be under formal
arrest.
52. In this regard, a passage from the Constitution Bench decision in
State of Uttar Pradesh v. Deoman Upadhyaya[25] is reproduced below:
-
“The expression, "accused of any offence" in s. 27, as in s. 25,
is also descriptive of the person concerned, i.e., against a
person who is accused of an offence, s. 27 renders provable
certain statements made by him while he was in the custody of a
police officer. Section 27 is founded on the principle that even
though the evidence relating to confessional or other statements
made by a person, whilst he is in the custody of a police
officer, is tainted and therefore inadmissible, if the truth of
the information given by him is assured by the discovery of a
fact, it may be presumed to be untainted and is therefore
declared provable in so far as it distinctly relates to the fact
thereby discovered. Even though s. 27 is in the form of a
proviso to s. 26, the two sections do not necessarily deal with
the evidence of the same character. The ban imposed by s. 26 is
against the proof of confessional statements. Section 27 is
concerned with the proof of information whether it amounts to a
confession or not, which leads to discovery of facts. By s. 27,
even if a fact is deposed to as discovered in consequence of
information received, only that much of the information is
admissible as distinctly relates to the fact discovered.”
53. In Anter Singh v. State of Rajasthan[26], after referring to the
decisions in Madan Singh v. State of Rajasthan[27], Mohd. Aslam v.
State of Maharashtra[28], Pulukuri Kottaya v. Emperor[29], Prabhoo
v. State of U.P.[30] and Mohd. Inayatullah v. State of
Maharashtra[31], this Court summed up the following principles:-
“16. The various requirements of the section can be summed up as
follows:
1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the
provision has nothing to do with the question of relevancy.
The relevancy of the fact discovered must be established
according to the prescriptions relating to relevancy of other
evidence connecting it with the crime in order to make the
fact discovered admissible.
2) The fact must have been discovered.
3) The discovery must have been in consequence of some
information received from the accused and not by the
accused’s own act.
4) The person giving the information must be accused of any
offence.
5) He must be in the custody of a police officer.
6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which
relates distinctly or strictly to the fact discovered can
be proved. The rest is inadmissible.”
54. In this context, it would be fruitful to refer to the ruling in
State of Maharashtra v. Damu[32] wherein it has been observed that:
-
“35. The basic idea embedded in Section 27 of the Evidence
Act is the doctrine of confirmation by subsequent events. The
doctrine is founded on the principle that if any fact is
discovered in a search made on the strength of any
information obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is
true. The information might be confessional or non-
inculpatory in nature, but if it results in discovery of a
fact it becomes a reliable information. Hence the legislature
permitted such information to be used as evidence by
restricting the admissible portion to the minimum.”
55. In Aftab Ahmad Anasari v. State of Uttaranchal[33], after referring
to earlier decisions, a two-Judge Bench, appreciating the material
brought on record, came to hold that when the accused was ready to
show the place where he had concealed the clothes of the deceased,
the same was clearly admissible under Section 27 of the Evidence
Act because the same related distinctly to the discovery of the
clothes of the deceased from that very place.
56. In Bhagwan Dass v. State (NCT of Delhi)[34], relying on the
decisions in Aftab Ahmad Anasari (supra) and Manu Sharma v. State
(NCT of Delhi)[35], the Court opined that when the accused had
given a statement that related to the discovery of an electric wire
by which the crime was committed, the said disclosure statement was
admissible as evidence.
57. As the material brought on record would show, the accused was in
the custody of the investigating agency and the fact whether he was
formally arrested or not will not vitiate the factum of leading to
discovery. However, it may be stated that the accused was also
arrested on that day. We have dealt with the issue that formal
arrest is not necessary as Mr. Jain has seriously contended that
the arrest was done after the recovery. As we have clarified the
position in law, the same would not make any difference.
58. As regards recovery from accused Abdul Mateen is concerned, it is
borne out from the record that after his arrest on 28.6.1997, he
gave information at 6.00 a.m. as contained in Ext. P-255, about
another bomb and on the basis of the said information the
Investigating Officer, PW-71, visited the spot along with the
accused and at his instance a live bomb was recovered which was
underneath the earth. In the said information the accused had
stated that the two bombs were inside the SMS Stadium and he could
verify the places by going inside the stadium. In the evidence of
Jai Narain, PW-6, Gopal Singh, PW-7 and Shivnath, PW-22, it has
come on record that the bombs were recovered at the instance of
accused Abdul Mateen on 28.6.1998. This fact has been corroborated
by Vinod Sharma, PW-16 and Gordhan, PW-10 who also accompanied the
investigating team. Shivnath, PW-22, had clearly stated that the
bomb recovered was high explosive time bomb and the battery was
inside the timer and the same was switched on and he further
confirmed that electric detonator was used in the bomb. Vinod
Kumar, PW-16, also stated that the electric detonator was found in
the bomb and the same was neutralized. Suresh Kumar Saini, PW-67,
in his deposition, gave description of loss caused due to the
explosion of the time bomb. He had further deposed that lid of
stainless steel of casio watch had been recovered from the scene of
crime.
59. On appreciating the aforesaid material, it is clear as crystal that
the said accused has stated about the fact of planting of bomb at a
particular site in the stadium and led to the said place from which
the bomb was recovered. The submission of Mr. Jain is that such
material cannot be put against the accused being inadmissible in
evidence. In this context, we may refer to a two-Judge Bench
decision in Prakash Chand v. State (Delhi Administration)[36]
wherein the Court, after referring to the decision in Himachal
Pradesh Administration v. Om Prakash[37], opined thus: -
“There is a clear distinction between the conduct of a person
against whom an offence is alleged, which is admissible under
Section 8 of the Evidence Act, if such conduct is influenced by
any fact in issue or relevant fact and the statement made to a
Police Officer in the course of an investigation which is hit by
Section 162 of the Criminal Procedure Code. What is excluded by
Section 162, Criminal Procedure Code is the statement made to a
Police Officer in the course of investigation and not the
evidence, relating to the conduct of an accused person (not
amounting to a statement) when confronted or questioned by a
Police Officer during the course of an investigation. For
example, the evidence of the circumstance, simpliciter, that an
accused person led a Police Officer and pointed out the place
where stolen articles or weapons which might have been used in
the commission of the offence were found hidden, would be
admissible as conduct, under Section 8 of the Evidence Act,
irrespective of whether any statement by the accused
contemporaneously with or antecedent to such conduct falls
within the purview of Section 27 of the Evidence Act.”
60. The said principle has been reiterated in A.N. Venkatesh and
another v. State of Karnataka[38].
61. Tested on the touchstone of the aforesaid enunciation of law, the
submission of Mr. Jain leaves us unimpressed and we are inclined to
hold that the said fact is a relevant fact which is admissible in
evidence.
62. The next aspect that is to be adverted to is that ammonium nitrate
not being an explosive substance, mere possession cannot bring the
accused Chandra Prakash within the ambit of any offence. In this
regard, we may refer to Section 4(d) of the 1884 Act. It reads as
follows: -
“(d) “explosive” means gunpowder, nitroglycerine, nitroglycol,
guncotton, di-nitro-toluene, tri-nitro-toluene, picric acid, di-
nitro-phenol, tri-nitro-resorcinol (styphnic acid), cyclo-
trimethylene-tri-nitramine, penta-erythritol-tetranitrate,
tetryl, nitro-guanidine, lead azide, lead styphynate, fulminate
of mercury or any other metal, diazo-di-nitro-phenol, coloured
fires or any other substance whether a single chemical compound
or a mixture of substances, whether solid or liquid or gaseous
used or manufactured with a view to produce a practical effect
by explosion or pyrotechnic effect; and includes fog-signals,
fireworks, fuses, rockets, percussion-caps, detonators,
cartridges, ammunition of all descriptions and every adaptation
or preparation of an explosive as defined in this clause;”
63. Section 2 of the 1908 Act, which deals with definitions, reads as
follows: -
“2. Definitions. - In this Act--
(a) the expression "explosive substance" shall be deemed to
include any materials for making any explosive substance;
also any apparatus, machine, implement or material used, or
intended to be used, or adapted for causing, or aiding in
causing, any explosion in or with any explosive substance;
also any part of any such apparatus, machine or implement;
(b) the expression "special category explosive substance"
shall be deemed to include research development explosive
(RDX), penta erythritol tetra nitrate (PETN), high melting
explosive (HMX), tri nitro toluene (TNT), low temperature
plastic explosive (LTPE), composition exploding (CE) (2, 4,
6 phenyl methyl nitramine or tetryl), OCTOL (mixlure of
high melting explosive and tri nitro toluene), plastic
explosive kirkee-1 (PEK-1) and RDX/TNT compounds and other
similar type of explosives and a combination thereof and
remote control devices causing explosion and any other
substance and a combination thereof which the Central
Government may, by notification in the Official Gazette,
specify tor the purposes of this Act.”
64. Keeping in view the broad definitions of both the Acts, we are
required to see what has been seized from the accused Chandra
Prakash. What is evincible from the seizure report, Ext. P-42,
apart from ammonium nitrate, fuse wire and empty boxes were also
seized. That apart, 17 packs containing blue coloured fuse wire
kept in plastic (polythene) bags and four boxes containing blue
coloured fuse wire, “Sun brand safety fuse” numbered as 40208,
40158, 39937, 40203 respectively, one carton of explosives
detonating fuse measuring 1500 meters in length and 38 kg in
weight, containing four wooden logs of red colour, 375 meter wire
in each Gattha and black coloured cap fitted on the tip of the
wire, three cartons of explosive Belgelative 90 (Gulla Dynamite)
net weight of each being 25 Kg. with “Division I Class II safety
distance category ZZ Bharat Explosive Ltd. 9 KM Lalitpur (U.P.)
Date of manufacturing 4.6.97 batch No. 2” written on each box, four
packets of O.D. Detonator containing 1600 detonators, a substance
of light yellow colour kept inside a carton of paer in a plastic
bag weighing nearly 5 kg and 16 empty cartons, one of gulla and 15
of fuse wire, were seized.
65. Section 2 of the 1908 Act has a deeming provision which states that
explosive substance would include any materials for making any
explosive substance. Similarly, Section 4(d) of the 1884 Act has a
broader spectrum which includes coloured fires or any other
substances, whether single chemical compound or a mixture of
substances. That apart, as we find, apart from ammonium nitrate
other articles had been seized. The combination of the same, as
per the evidence of the expert witness, was sufficient to prepare a
bomb for the purpose of explosion. In addition to the same, huge
quantity of ammonium nitrate was seized and it was seized along
with other items. The cumulative effect is that the possession of
these articles in such a large quantity by the accused gives
credence to the prosecution version that the possession was
conscious and it was intended to be used for the purpose of the
blast.
66. The next aspect which needs to be adverted to is non-framing of
specific charge. On a perusal of the record, we find that the
learned trial Judge has framed the charges specifically by putting
the charges to the accused. The purpose of framing of charges is
that the accused should be informed with certainty and accuracy of
the charge brought against him. There should not be vagueness.
The accused must know the scope and particulars in detail. In this
context, we may refer to decision in Santosh Kumari v. State of
Jammu and Kashmir and others[39], wherein it has been held as
follows: -
“17. Like all procedural laws, the Code of Criminal Procedure is
devised to subserve the ends of justice and not to frustrate
them by mere technicalities. It regards some of its provisions
as vital but others not, and a breach of the latter is a curable
irregularity unless the accused is prejudiced thereby. It places
errors in the charge, or even a total absence of a charge in the
curable class. That is why we have provisions like Sections 215
and 464 in the Code of Criminal Procedure, 1973.
18. The object of the charge is to give the accused notice of
the matter he is charged with and does not touch jurisdiction.
If, therefore, the necessary information is conveyed to him in
other ways and there is no prejudice, the framing of the charge
is not invalidated. The essential part of this part of law is
not any technical formula of words but the reality, whether the
matter was explained to the accused and whether he understood
what he was being tried for. Sections 34, 114 and 149 IPC
provide for criminal liability viewed from different angles as
regards actual participants, accessories and men actuated by a
common object or a common intention; and as explained by a five-
Judge Constitution Bench of this Court in Willie (William)
Slaney v. State of M.P.[40] SCR at p. 1189, the charge is a
rolled-up one involving the direct liability and the
constructive liability without specifying who are directly
liable and who are sought to be made constructively liable.”
67. In K. Prema S. Rao v. Yadla Srinivasa Rao[41], the Court opined
that though the charge specifically under Section 306 IPC was not
framed, yet all the ingredients constituting the offence were
mentioned in the statement of charges. In that context, a three-
Judge Bench of this Court ruled that mere omission or defect in
framing of charge does not disable the criminal court from
convicting the accused for the offence which is found to have been
proved on the evidence on record. The said principle has been
reiterated in Dalbir Singh v. State of U.P.[42], State of U.P. v.
Paras Nath Singh[43] and Annareddy Sambasiva Reddy v. State of
A.P.[44].
68. In the case at hand, as has been stated earlier, the charges have
been framed and we do not find any vagueness. That apart, neither
any prejudice has been caused nor has there been any failure of
justice. Thus, the submission of Mr. Jain in this regard leaves us
unimpressed.
69. The next facet which deserves to be addressed pertains to the
criminal conspiracy. The submission of the learned counsel for the
appellants is that the learned trial Judge has inappositely drawn
certain inferences to show that there was a criminal conspiracy and
the High Court has, without delving deep into the matter, concurred
with the same. As per the evidence brought on record, it is clear
as crystal that accused Abdul Mateen, Abdul Hamid and Raies Beg
used to meet quite frequently at the Madarsa at village Farah. It
is also evident from the deposition of Kanchan Singh, PW-11, Shri
Chand, PW-12, Murari Lal Sharma, PW-13, and Ashok Kumar, PW-17,
that the accused Abdul Mateen, Raies Beg and Abdul Hamid used to
meet at the Madarsa at village Farah. That apart, Pappu had also
deposed implicating himself that when there used to be discussion
at madarsa in the village Farah about the suitable place for
planting the bomb, the timer of the bomb was supplied by Dr. Abdul
Hamid. The chain of events and the participation of the accused
persons which had the genesis in the discussion and the meetings,
the purchase of ammonium nitrate and other items, carrying of the
boxes to the Madarsa and all other factors cumulatively show that
there was conspiracy.
70. While dealing with the facet of criminal conspiracy, it has to be
kept in mind that in case of a conspiracy, there cannot be any
direct evidence. Express agreement between the parties cannot be
proved. Circumstances proved before, during and after the
occurrence have to be considered to decide about the complicity of
the accused. Such a conspiracy is never hatched in open and,
therefore, evaluation of proved circumstances play a vital role in
establishing the criminal conspiracy. In this context, we may
refer with profit to a passage from Yogesh alias Sachin Jagdish
Joshi v. State of Maharashtra[45]: -
“20. The basic ingredients of the offence of criminal conspiracy
are: (i) an agreement between two or more persons; (ii) the
agreement must relate to doing or causing to be done either (a)
an illegal act; or (b) an act which is not illegal in itself but
is done by illegal means. It is, therefore, plain that meeting
of minds of two or more persons for doing or causing to be done
an illegal act or an act by illegal means is sine qua non of
criminal conspiracy. Yet, as observed by this Court in
Shivnarayan Laxminarayan Joshi v. State of Maharashtra[46] a
conspiracy is always hatched in secrecy and it is impossible to
adduce direct evidence of the common intention of the
conspirators. Therefore, the meeting of minds of the
conspirators can be inferred from the circumstances proved by
the prosecution, if such inference is possible.”
71. The same principles have been stated in Pratapbhai Hamirbhai
Solanki v. State of Gujarat and another[47].
72. In Yakub Abdul Razak Menon v. The State of Maharashtra, through
CBI, Bombay[48], analyzing various pronouncements, this Court
opined thus: -
“68. For an offence Under Section 120B Indian Penal Code, the
prosecution need not necessarily prove that the conspirators
expressly agreed to do or cause to be done the illegal act, the
agreement may be proved by necessary implication. It is not
necessary that each member of the conspiracy must know all the
details of the conspiracy. The offence can be proved largely
from the inferences drawn from the acts or illegal omission
committed by the conspirators in pursuance of a common design.
Being a continuing offence, if any acts or omissions which
constitute an offence are done in India or outside its
territory, the conspirators continuing to be the parties to the
conspiracy and since part of the acts were done in India, they
would obviate the need to obtain the sanction of the Central
Government. All of them need not be present in India nor
continue to remain in India. The entire agreement must be viewed
as a whole and it has to be ascertained as to what in fact the
conspirators intended to do or the object they wanted to
achieve. (Vide: R.K. Dalmia v. Delhi Administration[49], Lennart
Schussler and Anr. v. Director of Enforcement and Anr.[50],
Shivanarayan Laxminarayan Joshi v. State of Maharashtra
and Mohammad Usman Mohammad Hussain Maniyar and Anr. v. State of
Maharashtra[51]).”
73. Testing the present factual matrix on the anvil of the aforesaid
enunciation of law, we are of the considered view that the opinion
expressed by the learned trial Judge as well as by the High Court
that there has been conspiracy between the parties to commit the
blast on a particular day cannot be found fault with.
74. Presently, we shall engage ourselves to deal with the conviction of
accused Abdul Mateen for the offence under Section 14 of the
Foreigners Act, 1946. The said provision reads as under: -
“14. Penalty for contravention of provisions of the Act, etc. -
whoever –
a) Remains in any area in India for a period exceeding the
period for which the visa was issued to him;
b) does any act in violation of the conditions of the valid visa
issued to him from his entry and stay in India or any part
thereunder;
c) contravenes the provisions of this Act or of any order made
thereunder or any direction given in pursuance of this Act or
such order for which no specific punishment is provided under
this Act, shall be punished with imprisonment for a term
which may extend to five years and shall also be liable to
fine; and if he has entered into a bond in pursuance of
clause (f) of sub-section (2) of section 3, his bond shall be
forfeited, and any person bound thereby shall pay the penalty
thereof or show cause to the satisfaction of the convicting
court why such penalty should not be paid by him.
Explanation. – For the purposes of this section, the
expression “visa” shall have the same meaning as assigned to
it under the Passport (Entry into India) Rules, 1950 made
under the Passport (Entry into India) Act, 1920 (34 of
1920).”
75. The learned trial Judge, analyzing the material on record, has come
to hold that the said Abdul Mateen is a resident of Pakistan and he
had no valid document to be in India. In his statement under
Section 313 of the Code, he had not disputed that he was not having
passport or visa and he is of Pakistan nationality. Thus, the
offence under the said Act has been held to be proved. The High
Court has concurred with the said view. In our considered opinion,
the offence under the said Act has been proved beyond reasonable
doubt.
76. In view of the aforesaid analysis, we conclude and hold that the
grounds assailing the judgment of conviction and the order of
sentence have no legal substantiality and, accordingly, they are
rejected.
77. The factual scenario of the instant case compels us to state that
these kinds of activities by anyone breeds lawlessness, fear and
affects the fundamental unity of our great country. A nation with
a desire to prosper is required to maintain high degree of law and
order situation apart from respecting “imperatives of
internationalism”. Certain individuals harbouring unacceptable
notions and inexcusable philosophy and, on certain occasions,
because of enormous avarice, try to jeopardize the cohesive and
collegial fabric of the State. This leads to national decay and
gives rise to incomprehensible anarchy. It reflects non-reverence
for humanity. Be it categorically stated, every citizen of this
country is required to remember that national patriotism is founded
on the philosophy of public good. Love for one’s country and
humanity at large are eternally cherished values. The infamous
acts of the appellants are really condemnable not only because of
the dent they intended to create in the social peace and
sovereignty of the nation, but also from the humane point of view
as they are founded on greed, envy, baseless anger, pride,
prejudice and perverse feelings towards mankind.
78. We have, in agony and anguish, have expressed thus because when a
devastating activity like the present one occurs on the Republic
Day of our country Bharat, it injures the nationality, disturbs the
equilibrium of each individual citizen, creates a concavity in the
equanimity of the peace of the State, generates a stir in the
sanctity and divinity of law and order situation which is paramount
in any civilized State, attempts to endanger the economic growth of
a country and, in the ultimate eventuate, destroys the conceptual
normalcy of any habitat. Law cannot remain silent to this because
it is the duty of law to resist such attacks on peace. It is
manifest that the accused-appellants had conspired to send a savage
stir among the citizenry of this country on the Republic Day. The
great country like ours cannot succumb to this kind of terrorist
activity as it is nationally as well as internationally obnoxious.
Such tolerance would tantamount to acceptance of defeat. The iron
hands of law has to fall and in the obtaining facts and
circumstances, as the charges have been proved beyond reasonable
doubt, the law has rightly visited the appellants and, accordingly,
we concur with the same.
79. Consequently, all the appeals, being bereft of merit, stand
dismissed.
………………………………J.
[K.S. Radhakrishnan]
………………………………J.
[Dipak Misra]
New Delhi;
May 9, 2014.
-----------------------
[1] (2000) 1 SCC 555
[2] (1991) 3 SCC 206
[3] (1997) 1 SCC 682
[4] (1996) 8 SCC 514
[5] (2000) 1 SCC 471
[6] (2003) 3 SCC 569
[7] (2012) 6 SCC 174
[8] AIR 1963 SC 599
[9] (1969) 3 SCC 429
[10] AIR 1957 SC 637
[11] (1975) 3 SCC 742
[12] AIR 2011 SC 3753
[13] (1997) 11 SCC 720
[14] AIR 1960 SC 961
[15] (1972) 3 SCC 511
[16] (1973) 3 SCC 805
[17] (1988) 1 SCC 1
[18] (1988) 1 SCC 696
[19] AIR 1968 SC 832
[20] AIR 1961 SC 1762
[21] (2006) 7 SCC 442
[22] (1988) 1 SCC 633
[23] (2011) 13 SCC 621
[24] (2010) 3 SCC 56
[25] AIR 1960 SC 1125
[26] (2004) 10 SCC 657
[27] (1978) 4 SCC 435
[28] (2001) 9 SCC 362
[29] AIR 1947 PC 67
[30] AIR 1963 SC 1113
[31] (1976) 1 SCC 828
[32] (2000) 6 SCC 269
[33] (2010) 2 SCC 583
[34] (2011) 6 SCC 396
[35] (2010) 6 SCC 1
[36] (1979) 3 SCC 90
[37] (1972) 1 SCC 249
[38] (2005) 7 SCC 714
[39] (2011) 9 SCC 234
[40] AIR 1956 SC 116
[41] (2003) 1 SCC 217
[42] (2004) 5 SCC 334
[43] (2009) 6 SCC 372
[44] (2009) 12 SCC 546
[45] (2008) 10 SCC 394
[46] (1980) 2 SCC 465
[47] (2013) 1 SCC 613
[48] 2013 (3) SCALE 565
[49] AIR 1962 SC 1821
[50] (1970) 1 SCC 152
[51] AIR 1981 SC 1062
Test Identification parade - mere delay in conduct is not fatal when conducted with in one month after the arrest and when witnesses identified in court - Sanction and consent a District collector can give under explosive substance Act - Apex court confirmed the judgment of High court and that of lower court =
8.30 a.m., there was a blast of explosive substances between Gate
No.12 and Gate No. 13, towards the southern and eastern side of Sawai
Man Singh Stadium Jaipur, where the State level function on Republic
Day was going to be celebrated.
Due to the sound
caused by the explosion, one Ramgopal Choudhary, an employee of the
Public Works Department, who was passing nearby, had met with an
injury on his ear for which he was immediately sent to the hospital.
On the basis of the FIR, offences under Section 120-B read with
Sections 307 and 427 IPC, under Section 3 of the Prevention of Damage
to Public Property Act, 1984 and under Section 3 of the Explosive
Substances Act, 1908 (for short “the 1908 Act”) and also under Section
9B of the Explosive Act, 1884 (for brevity “the 1884 Act”) were
registered and the investigation commenced. =
During the investigation, an anonymous letter in Urdu language
dated 1st June, 1997 was sent to the Superintendent of Police,
wherein some information was given -
In that letter, the names of some persons, i.e.,
Raies Beg of Agra, Dr. Abdul Hamid of Firozabad and Pappu
Puncturewala were mentioned. It was also mentioned that the ISI of
Pakistan was behind the bomb-blast. On the basis of the said
information, the investigating officer arrested five persons,
namely, Abdul Hamid, Raies Beg, Abdul Mateen, Pappu @ Saleem and
Chandra Prakash on various dates.
In the course of the investigation,
accused Pappu @ Saleem filed an application under Section 306 of
the Code of Criminal Procedure (for brevity “the Code”) before the
Chief Judicial Magistrate on 14.8.1997 who, by order dated
30.8.1997, authorized the Additional Chief Judicial Magistrate No.
6 to record the statement of the said accused under Section 164 of
the Code and thereafter, the Chief Judicial Magistrate, by a
reasoned order dated 20.9.1997, allowed the application. After
carrying out the detailed investigation, the police laid the charge-
sheet against the arrested accused persons, namely, Chandra
Prakash, Abdul Mateen, Raies Beg and Abdul Hamid.
The accused persons in their statements under Section 313 of the
Code took separate plea and hence, it is obligatory on our part to
record their pleas individually.
Abdul Mateen admitted that he is
a Pakistani and he had remained as a Pakistani always; that he had
never come to India before his arrest; that he did not know any
person in India; that he never visited the places, namely, Jaipur,
Farah, Roopwas, Agra Firozabad or any other city; and that he had
never given any information to the police and no recovery was made
by the police at his instance and he had never identified any
place.
The plea of Abdul Hamid was that he never gave any
information to the police during the investigation of the case and
he did not furnish any information about the shop of Mohit Jain, PW-
30, situated at Delhi and he had been falsely implicated.
Raies
Beg took the plea that due to communal riots he had been falsely
booked in the crime.
Accused Chandra Prakash, apart from false
implication, denied any relationship with Pappu @ Saleem, PW-1, and
further stated that no key was recovered from him and he did not
open any godown and room with his keys. He also took the stand
that he had not taken any room on rent in Krishi Upaz Mandi or any
shop near the power house on rent and disputed the recovery from
any shop.
The trial court, appreciating the oral and documentary
evidence on record, by its judgment and order dated 22.04.2000 in
Sessions Case no. 8/98, convicted all the accused and sentenced all
of them individually in respect of all the specific charges framed
against them.
Before Apex court -
a) The learned trial Judge as well as the High Court committed grave
error by coming to hold that sanction given under Section 7 of the
1908 Act cannot be found fault with, though the District
Magistrate, Jaipur was not examined as a witness to prove the order
of sanction.
b) The recovery made from the appellant, Chandra Prakash, at the
instance of information given by Pappu would not be admissible in
evidence because at the time of giving information, Pappu was an
accused and had not been treated as an approver which was done
later on by virtue of the order of the Court. The testimony of the
approver is not creditworthy since he has deposed that he was not
aware about the contents of the box that he was asked to carry by
the other accused persons.
c) The alleged recovery of ammonium nitrate from the custody of
accused, Chandra Prakash, either at the instance of Pappu @ Saleem,
PW-1, or by the accused-appellant cannot be accepted because Pappu
@ Saleem, PW-1 is an accomplice and in absence of any
corroboration, his evidence has to be thrown overboard and further
the case of prosecution that at the instance of the accused
articles were discovered is to be rejected inasmuch as Section 27
of the Evidence Act, 1872 could not have been made applicable to
the facts of the present case, for Chandra Prakash had not been
arrested by the time the alleged discovery took place.
d) Assuming the ammonium nitrate was recovered from the custody of
Chandra Prakash, the same would not make out any offence punishable
under any of the provisions of the 1908 Act or the 1884 Act, for
the simple reason that it does not come under the statutory
definition. Even if the language of Sections 2 and 3 of the 1908
Act as well as Section 9B of the 1884 Act are stretched, it would
not bring in its sweep the simple act of sale by Chandra Prakash
without any intention or knowledge about its use.
e) No independent charges were framed against the accused-appellant
under Sections 3, 4 and 5 of the 1908 Act but along with Section 6
of the 1908 Act and, therefore, conviction under the said provision
is absolutely fallacious.
SANCTION -
Erram SantoshReddy and others v. State of Andhra Pradesh[2] would be
appropriate. In the said case, the Court has observed as follows:
-
“7. The last submission is that no sanction was obtained from
the Central Government as laid down under Section 7 of the
Explosive Substances Act for prosecuting the appellants for the
offences under the Explosive Substances Act. From the judgment
we do not find that any such objection was taken. In any event
from the record we find that the Collector granted permission
and this must be pursuant to the delegation of powers as
contemplated under Section 18(2) of the ‘TADA’.”
25. From the aforesaid, we come to the conclusion that the District
Magistrate had the authority to give consent for the prosecution.
CONSENT
In State of Tamil Nadu v. Sivarasan alias Raghu alias
Sivarasa and others[3], the Court, while dealing with the effect of
Section 7 of the 1908 Act, has observed as follows: -
“Section 7 does not require a sanction but only consent for
prosecuting a person for an offence under the Explosive
Substances Act. The object of using the word “consent” instead
of “sanction” in Section 7 is to have a purely subjective
appreciation of the matter before giving the necessary consent.”
27. Thereafter, the Court proceeded to state as follows: -
“We do not think that for obtaining consent of the Collector for
prosecuting the accused for the offence punishable under the
Explosive Substances Act it was necessary for the investigating
officer to submit the statements of witnesses also, who had
deposed about the movements of the accused and their activity of
manufacturing bombs and grenades. We, therefore, hold that the
consent given by the Collector was quite legal and valid.”
28. In view of the aforesaid, the approval/consent granted by the
District Magistrate in the obtaining factual matrix cannot be
treated as vitiated.
TEST IDENTIFICATION PARADE - AFTER ONE AND HALF YEAR
but done with in 3 weeks from the date of arrest
Recently, in Munna Kumar Upadhyay alias Munna Upadhyaya
v. State of Andhra Pradesh through Public Prosecutor, Hyderabad,
Andhra Pradesh[7], a two-Judge Bench has observed thus: -
“66. There was some delay in holding the identification parade.
But the delay per se cannot be fatal to the validity of holding
an identification parade, in all cases, without exception. The
purpose of the identification parade is to provide corroborative
evidence and is more confirmatory in its nature. No other
infirmity has been pointed out by the learned counsel appearing
for the appellant, in the holding of the identification parade.
The identification parade was held in accordance with law and
the witnesses had identified the accused from amongst a number
of persons who had joined the identification parade.”
In view of the aforesaid, the submission that there has been delay
in holding the test identification parade does not really affect
the case of the prosecution. It is also noteworthy that the
witnesses had identified the accused persons in court and nothing
has been elicited in the cross-examination even to create a doubt.
RECOVERY OF AMMONIA NITRATE
What is evincible from the seizure report, Ext. P-42,
apart from ammonium nitrate, fuse wire and empty boxes were also
seized. That apart, 17 packs containing blue coloured fuse wire
kept in plastic (polythene) bags and four boxes containing blue
coloured fuse wire, “Sun brand safety fuse” numbered as 40208,
40158, 39937, 40203 respectively, one carton of explosives
detonating fuse measuring 1500 meters in length and 38 kg in
weight, containing four wooden logs of red colour, 375 meter wire
in each Gattha and black coloured cap fitted on the tip of the
wire, three cartons of explosive Belgelative 90 (Gulla Dynamite)
net weight of each being 25 Kg. with “Division I Class II safety
distance category ZZ Bharat Explosive Ltd. 9 KM Lalitpur (U.P.)
Date of manufacturing 4.6.97 batch No. 2” written on each box, four
packets of O.D. Detonator containing 1600 detonators, a substance
of light yellow colour kept inside a carton of paer in a plastic
bag weighing nearly 5 kg and 16 empty cartons, one of gulla and 15
of fuse wire, were seized.
65. Section 2 of the 1908 Act has a deeming provision which states that
explosive substance would include any materials for making any
explosive substance. Similarly, Section 4(d) of the 1884 Act has a
broader spectrum which includes coloured fires or any other
substances, whether single chemical compound or a mixture of
substances. That apart, as we find, apart from ammonium nitrate
other articles had been seized. The combination of the same, as
per the evidence of the expert witness, was sufficient to prepare a
bomb for the purpose of explosion. In addition to the same, huge
quantity of ammonium nitrate was seized and it was seized along
with other items. The cumulative effect is that the possession of
these articles in such a large quantity by the accused gives
credence to the prosecution version that the possession was
conscious and it was intended to be used for the purpose of the
blast.
in holding the test identification parade does not really affect
the case of the prosecution. It is also noteworthy that the
witnesses had identified the accused persons in court and nothing
has been elicited in the cross-examination even to create a doubt.
RECOVERY OF AMMONIA NITRATE
What is evincible from the seizure report, Ext. P-42,
apart from ammonium nitrate, fuse wire and empty boxes were also
seized. That apart, 17 packs containing blue coloured fuse wire
kept in plastic (polythene) bags and four boxes containing blue
coloured fuse wire, “Sun brand safety fuse” numbered as 40208,
40158, 39937, 40203 respectively, one carton of explosives
detonating fuse measuring 1500 meters in length and 38 kg in
weight, containing four wooden logs of red colour, 375 meter wire
in each Gattha and black coloured cap fitted on the tip of the
wire, three cartons of explosive Belgelative 90 (Gulla Dynamite)
net weight of each being 25 Kg. with “Division I Class II safety
distance category ZZ Bharat Explosive Ltd. 9 KM Lalitpur (U.P.)
Date of manufacturing 4.6.97 batch No. 2” written on each box, four
packets of O.D. Detonator containing 1600 detonators, a substance
of light yellow colour kept inside a carton of paer in a plastic
bag weighing nearly 5 kg and 16 empty cartons, one of gulla and 15
of fuse wire, were seized.
65. Section 2 of the 1908 Act has a deeming provision which states that
explosive substance would include any materials for making any
explosive substance. Similarly, Section 4(d) of the 1884 Act has a
broader spectrum which includes coloured fires or any other
substances, whether single chemical compound or a mixture of
substances. That apart, as we find, apart from ammonium nitrate
other articles had been seized. The combination of the same, as
per the evidence of the expert witness, was sufficient to prepare a
bomb for the purpose of explosion. In addition to the same, huge
quantity of ammonium nitrate was seized and it was seized along
with other items. The cumulative effect is that the possession of
these articles in such a large quantity by the accused gives
credence to the prosecution version that the possession was
conscious and it was intended to be used for the purpose of the
blast.
Both appeals by accused and state were dismissed
2014 (May.Part) http://judis.nic.in/supremecourt/filename=41535K.S. RADHAKRISHNAN, DIPAK MISRA
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1155 OF 2014
(Arising out of S.L.P. (Crl.) 4419 of 2009)
Chandra Prakash … Appellant
Versus
State of Rajasthan …Respondent
WITH
CRIMINAL APPEAL NOS.1156-1157 OF 2014
(Arising out of S.L.P. (Crl.) 3524-3525 of 2010)
Abdul Hamid and another … Appellants
Versus
State of Rajasthan …Respondent
With
CRIMINAL APPEAL NO. 1160 OF 2014
(Arising out of S.L.P. (Crl.) Nos. 4105 of 2014
CRLMP 22781/2012)
Abdul Mateen … Appellant
Versus
State of Rajasthan …Respondent
J U D G M E N T
Dipak Misra, J.
On 26th January, 1996, a day of celebration and conscientious
remembrance of the “Red Letter Day” in the history of India because
26th January is the date in 1950, when our organic, inclusive, humane
and compassionate Constitution came into existence being given by the
people of this country to themselves and the nation has been obliged
to jubilate remembering the said important day in our national
history, for it chartered the path of many an emancipation and
conferred on the people the highly cherished fundamental rights; about
8.30 a.m., there was a blast of explosive substances between Gate
No.12 and Gate No. 13, towards the southern and eastern side of Sawai
Man Singh Stadium Jaipur, where the State level function on Republic
Day was going to be celebrated. Soon after the blast, Prahlad Singh,
the Station House Officer, Police Station lodged an FIR about 9.30
a.m. which was registered as FIR No. 39/1996. As per the FIR, when
the blast took place, the people who had assembled were asked to leave
the stadium so that there could be a check. During the check, it was
found that due to the blast, a big size crater had come into existence
at the scene of explosion. That apart, by the said explosion, the
sand hopped upward and fell on the places meant for sitting in the
stadium and also on the roof. The glasses of the windows of the
pavilion near the explosion had broken into pieces. At the time when
the explosion had occurred, only police personnel but no civilians
were present in that part of the stadium. The public at large, which
was present inside the Stadium, was informed to leave the Stadium so
that the check and security could be carried out. Due to the sound
caused by the explosion, one Ramgopal Choudhary, an employee of the
Public Works Department, who was passing nearby, had met with an
injury on his ear for which he was immediately sent to the hospital.
On the basis of the FIR, offences under Section 120-B read with
Sections 307 and 427 IPC, under Section 3 of the Prevention of Damage
to Public Property Act, 1984 and under Section 3 of the Explosive
Substances Act, 1908 (for short “the 1908 Act”) and also under Section
9B of the Explosive Act, 1884 (for brevity “the 1884 Act”) were
registered and the investigation commenced. Later on, the
investigation of the case was transferred to C.I.D(C.B.).
2. During the investigation, an anonymous letter in Urdu language
dated 1st June, 1997 was sent to the Superintendent of Police,
wherein some information was given which was alleged to have been
gathered by the senders who described themselves as well wishers
while they were in custody in the Central Jail, Jaipur, in respect
of the bomb-blast that took place on 26th January, 1996 at the SMS
Stadium, Jaipur. In that letter, the names of some persons, i.e.,
Raies Beg of Agra, Dr. Abdul Hamid of Firozabad and Pappu
Puncturewala were mentioned. It was also mentioned that the ISI of
Pakistan was behind the bomb-blast. On the basis of the said
information, the investigating officer arrested five persons,
namely, Abdul Hamid, Raies Beg, Abdul Mateen, Pappu @ Saleem and
Chandra Prakash on various dates.
3. During the investigation, the investigating agency recovered a live
time bomb from SMS Stadium and explosive items were recovered from
Roopwas, District Bharatpur. In the course of the investigation,
accused Pappu @ Saleem filed an application under Section 306 of
the Code of Criminal Procedure (for brevity “the Code”) before the
Chief Judicial Magistrate on 14.8.1997 who, by order dated
30.8.1997, authorized the Additional Chief Judicial Magistrate No.
6 to record the statement of the said accused under Section 164 of
the Code and thereafter, the Chief Judicial Magistrate, by a
reasoned order dated 20.9.1997, allowed the application. After
carrying out the detailed investigation, the police laid the charge-
sheet against the arrested accused persons, namely, Chandra
Prakash, Abdul Mateen, Raies Beg and Abdul Hamid.
4. All the accused persons abjured guilt, pleaded false implication
and, accordingly, faced trial.
5. The learned trial Judge framed different charges against the four
accused persons and we think that it would be apt to refer to the
charges framed against each of them. As far as Chandra Prakash is
concerned, the charges that were framed against him were under
Section 9B of the 1884 Act and under Sections 3, 4, 5 read with
Section 6 of the 1908 Act. As far as Abdul Mateen is concerned, he
was charged with the offences under Section 14 of the Foreigners
Act, 1946, under Sections 3, 4 and 5 of the 1908 Act, under Section
9B of the 1884 Act, under Section 3 of the Prevention of Damages to
Public Properties Act and under Sections 307, 118, 435 and 456 IPC.
As far as Raies Beg and Abdul Hamid are concerned, they were faced
with similar charges, namely, under Section 9B of the 1884 Act,
under Sections 3, 4 and 5 read with Section 6 of the 1908 Act and
under Sections 307/120B, 118/120B and 435/120B IPC.
6. To bring home the charges against the accused persons, the
prosecution examined as many as 78 witnesses and brought on record
exhibits P-1 to P-296. In defence, no witness was examined on
behalf of any of the accused persons. However, documentary
evidence was produced by them, i.e., exhibits D-1 to D-5. We shall
refer to the relevant parts of the testimonies of the vital
witnesses and advert to the documents which have been stressed and
emphasized upon by the prosecution at a later stage.
7. The accused persons in their statements under Section 313 of the
Code took separate plea and hence, it is obligatory on our part to
record their pleas individually. Abdul Mateen admitted that he is
a Pakistani and he had remained as a Pakistani always; that he had
never come to India before his arrest; that he did not know any
person in India; that he never visited the places, namely, Jaipur,
Farah, Roopwas, Agra Firozabad or any other city; and that he had
never given any information to the police and no recovery was made
by the police at his instance and he had never identified any
place. The plea of Abdul Hamid was that he never gave any
information to the police during the investigation of the case and
he did not furnish any information about the shop of Mohit Jain, PW-
30, situated at Delhi and he had been falsely implicated. Raies
Beg took the plea that due to communal riots he had been falsely
booked in the crime. Accused Chandra Prakash, apart from false
implication, denied any relationship with Pappu @ Saleem, PW-1, and
further stated that no key was recovered from him and he did not
open any godown and room with his keys. He also took the stand
that he had not taken any room on rent in Krishi Upaz Mandi or any
shop near the power house on rent and disputed the recovery from
any shop. The trial court, appreciating the oral and documentary
evidence on record, by its judgment and order dated 22.04.2000 in
Sessions Case no. 8/98, convicted all the accused and sentenced all
of them individually in respect of all the specific charges framed
against them. The offence for which each of them had faced trial
has been already mentioned hereinabove. All the accused had been
sentenced separately by the learned trial Judge.
8. Accused Abdul Mateen was sentenced to undergo five years rigorous
imprisonment and a fine of Rs.10,000/-, in default of payment of
fine to further undergo one year’s simple imprisonment under
Section 14 of the Foreigners Act; ten years rigorous imprisonment
and a fine of Rs.20,000, in default to further undergo two years’
simple imprisonment under Section 4 of the Prevention of Damages to
Public Property Act; three years rigorous imprisonment and a fine
of Rs.3,000/-, in default to further undergo six months’ simple
imprisonment under Section 456 IPC; to undergo ten years rigorous
imprisonment and a fine of Rs.10,000/-, in default to further
undergo two years’ simple imprisonment under Section 307 read with
Section 120B IPC; seven years rigorous imprisonment and a fine of
Rs.7,000/-, in default to further undergo one and half years’
simple imprisonment under Section 435 read with Section 120B IPC;
five years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment under
Section 118 read with Section 120B IPC; two years rigorous
imprisonment and a fine of Rs.2,000/-, in default to further
undergo three months’ simple imprisonment under Section 9B of the
1884 Act; imprisonment for life and a fine of Rs.20,000/- in
default to further undergo three years’ simple imprisonment under
Section 3 of the 1908 Act; seven years rigorous imprisonment and a
fine of Rs.7,000/-, in default to further undergo one and half
years’ simple imprisonment under Section 4 of the 1908 Act; and
five years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment under
Section 5 of the 1908 Act.
9. Accused Chandra Prakash was sentenced to undergo two years rigorous
imprisonment and a fine of Rs.2,000/-, in default to further
undergo three months’ simple imprisonment under Section 9B of the
1884 Act; ten years rigorous imprisonment and a fine of Rs.10,000/-
, in default to further undergo two years’ simple imprisonment
under Section 3 read with Section 6 of the 1908 Act; seven years
rigorous imprisonment and a fine of Rs.7,000/-, in default to
further undergo one and half years’ simple imprisonment under
Section 4 read with Section 6 of the 1908 Act; and five years
rigorous imprisonment and a fine of Rs.5,000/-, in default to
further undergo one year’s simple imprisonment under Section 5 read
with Section 6 of the 1908 Act.
10. Accused Abdul Hamid and Raies Beg were sentenced to undergo two
years rigorous imprisonment and a fine of Rs.2,000/-, in default to
further undergo three months’ simple imprisonment; ten years
rigorous imprisonment and a fine of Rs.10,000/-, in default to
further undergo two years simple imprisonment under Section 307
read with Section 120B IPC; seven years rigorous imprisonment and a
fine of Rs.7,000/-, in default to further undergo one and half
years’ simple imprisonment under Section 435 read with Section 120B
IPC; five years rigorous imprisonment and a fine of Rs.5,000/-, in
default to further undergo one year’s simple imprisonment under
Section 118 read with Section 120B IPC; ten years rigorous
imprisonment and a fine of Rs.10,000/-, in default to further
undergo two years’ simple imprisonment under Section 3 read with
Section 6 of the 1908 Act; seven years rigorous imprisonment and a
fine of Rs.7,000/-, in default to further undergo one and half
years’ simple imprisonment under Section 4 read with Section 6 of
the 1908 Act; and five years rigorous imprisonment and a fine of
Rs.5,000/-, in default to further undergo one year’s simple
imprisonment under Section 5 read with Section 6 of the 1908 Act.
11. At this juncture, we think it appropriate to state the findings
recorded by the learned trial Judge against each of the accused.
As far as Abdul Mateen is concerned, the trial court held that it
was clear from the evidence of GPS Wirk, PW-69, Assistant
Commander, BSF, that Mhd. Ashlam Baba was the financial head of a
terrorist organization by the name of “Harkat-ul-Ansar”, and during
the course of investigation, the accused Abdul Mateen was arrested
from Srinagar and no passport or visa was found in his possession.
The offence punishable under Section 14 of the Foreigners Act which
had been levelled against him was established beyond reasonable
doubt. The live time bomb was duly recovered and accused Abdul
Mateen had exclusive knowledge and it was he who planted the time
bomb at that place and it was proven from the testimonies of the
witnesses. From the evidence of the approver, Pappu, and the
information under Section 27 of the Evidence Act, it could be
concluded that prior to 26.1.1996, two time bombs were implanted by
accused Abdul Mateen. It was clear from the testimonies of Jai
Narayan, PW-6, and Gopal Saini, PW-7, that Abdul Mateen had led to
the recovery of the bomb and the charge of crime punishable under
Section 9B of the Explosive Act levelled against the accused Abdul
Mateen has been proved beyond reasonable doubt.
12. In respect of Raies Beg and Abdul Hamid, the trial court held that
Abdul Hamid had been visiting accused Chandra Prakash at Roopbas
quite frequently and both the accused persons had helped accused
Abdul Mateen in the commission of the offence. They used to meet
at the Madarsa of village Farah and the conspiracy was hatched.
The learned trial Judge came to hold that the involvement of the
said accused persons in the commission of the crime was reflectible
from the evidence of number of witnesses and the prosecution had
established their role beyond any shadow of doubt.
13. Pertaining to Chandra Prakash, the Court held that explosive
substances including gelatin and dynamite in huge quantity were
recovered from his possession on 1.8.1997. Scanning the evidence,
it recorded that the dynamite was used in both the bombs. He
further opined that Pappu @ Saleem, PW-1, was an associate and
colleague of accused Abdul Mateen and prior to the incident, the
explosive substance was brought from Chandra Prakash in village
Farah, where Pappu @ Saleem used to live with him. That apart,
Chandra Prakash was identified by Pappu and the key of the godown
was with the accused and he opened the lock of the said godown from
which 28 kattas of ammonium nitrate were recovered. It was also
clear from the evidence of Chetandass Rawatani, PW-34, that the
goods which were recovered from the accused were utilized for the
preparation of the explosive substance.
14. On the basis of the aforesaid findings and conclusions, the learned
trial Judge convicted the accused persons and sentenced them as has
been stated hereinbefore.
15. Being grieved by the aforesaid conviction and sentence, the accused
persons preferred separate appeals before the High Court being D.B.
Criminal (Jail) Appeal No. 318 of 2000, D.B. Criminal Appeal Nos.
189 of 2000, 258 of 2000 and 369 of 2000. The State filed
application for grant of leave (D.B. Criminal Leave to Appeal No.
26 of 2008) with an application for condonation of delay of seven
years and nine months which was taken up along with the appeals
preferred by the accused persons and the said appeal was dismissed
on the ground of delay. However, it may be stated here that the
High Court also addressed to the merits of the case of the State
which pertained to enhancement of sentence and did not find any
substance in the same. As regards the appeals preferred by the
accused persons, the appellate court did not perceive any merit
and, resultantly, dismissed the same by way of judgment and order
dated 3.2.2009. Hence, the assail is to the judgment of conviction
and order of sentence by the applications of special leave
petitions.
16. Leave granted in all the special leave petitions.
17. As all the appeals relate to defensibility of common judgment
passed by the High Court in respect of all the accused-appellants,
they are disposed of by a singular judgment.
18. Mr. Sushil K. Jain, learned senior counsel for the appellants,
criticizing the judgment of the trial court and that of the High
Court, has raised the following contentions: -
a) The learned trial Judge as well as the High Court committed grave
error by coming to hold that sanction given under Section 7 of the
1908 Act cannot be found fault with, though the District
Magistrate, Jaipur was not examined as a witness to prove the order
of sanction.
b) The recovery made from the appellant, Chandra Prakash, at the
instance of information given by Pappu would not be admissible in
evidence because at the time of giving information, Pappu was an
accused and had not been treated as an approver which was done
later on by virtue of the order of the Court. The testimony of the
approver is not creditworthy since he has deposed that he was not
aware about the contents of the box that he was asked to carry by
the other accused persons.
c) The alleged recovery of ammonium nitrate from the custody of
accused, Chandra Prakash, either at the instance of Pappu @ Saleem,
PW-1, or by the accused-appellant cannot be accepted because Pappu
@ Saleem, PW-1 is an accomplice and in absence of any
corroboration, his evidence has to be thrown overboard and further
the case of prosecution that at the instance of the accused
articles were discovered is to be rejected inasmuch as Section 27
of the Evidence Act, 1872 could not have been made applicable to
the facts of the present case, for Chandra Prakash had not been
arrested by the time the alleged discovery took place.
d) Assuming the ammonium nitrate was recovered from the custody of
Chandra Prakash, the same would not make out any offence punishable
under any of the provisions of the 1908 Act or the 1884 Act, for
the simple reason that it does not come under the statutory
definition. Even if the language of Sections 2 and 3 of the 1908
Act as well as Section 9B of the 1884 Act are stretched, it would
not bring in its sweep the simple act of sale by Chandra Prakash
without any intention or knowledge about its use.
e) No independent charges were framed against the accused-appellant
under Sections 3, 4 and 5 of the 1908 Act but along with Section 6
of the 1908 Act and, therefore, conviction under the said provision
is absolutely fallacious.
19. Mr. Balaji Srinivasan, learned counsel appearing for the
appellants, Abdul Hamid and Raies Beg, submitted as under:-
(A) The prosecution has failed to prove the nexus of the accused-
appellants with the co-accused Abdul Mateen in the crime and
nothing has been brought on record to establish the allegations.
The only evidence that has been recorded is that Abdul Hamid
used to meet Abdul Mateen frequently at village Farah.
B) There is no recovery of explosive substance or any incriminating
materials from the appellant’s house and in the absence of any
recovery, the appellant cannot be roped in the crime.
C) The allegation of the prosecution with regard to the relation of
the appellant with Abdul Mateen does not have any substance and, in
any case, there is no proof to establish the same.
D) The bomb blast at SMS Stadium, Jaipur took place on 26.01.1996 and
the accused was arrested on 8.06.1997 and identification parade was
conducted on 25.06.1997 about one and half years after the
incident. This aspect vitiates the identification parade and
creates a dent in the case of the prosecution for which the
appellants should be given the benefit of doubt.
20. Mr. Atul Kumar, learned counsel appearing for the appellant Abdul
Mateen, in addition to the contentions raised by Mr. Jain and Mr.
Balaji, has contended that no consent has been taken under Section
7 of the 1908 Act from the Central Government and hence, the entire
trial is vitiated.
21. Dr. Manish Singhvi, learned Additional Advocate General appearing
for the State of Rajasthan, supporting the judgment of the High
Court, has submitted as follows: -
i) The sanction given by the District Magistrate, on a perusal,
would show application of mind and, by no stretch of
imagination, it can be regarded as invalid in law.
ii) The recovery at the instance of an accused under Section 27 of
the Indian Evidence Act is admissible in evidence and the
information given by Pappu, PW-1, which led to the recovery of
huge quantity of explosives would per se be admissible in
evidence and this evidence is not to be treated as inadmissible
merely because the accused at the relevant point of time had
subsequently become the approver.
iii) The recovery of explosives by the accused, Chandra Prakash, by
opening the keys of the godown would be a relevant fact and
admissible under Section 8 of the Evidence Act, irrespective of
the fact that the conduct falls within the purview of Section 27
of the Evidence Act.
iv) The recovery of the explosive substance has been made by the
police vide memo Ex. P-42 during the search and seizure
operations. Chetan Das Rawatani, PW-34, Explosive Expert, has
stated that the articles recovered in Ex. P-42 were explosive
articles and the same has also been proved by the FSL Report,
Ex. P-234.
v) The evidence of the approver Pappu, PW-1, is admissible as
substantive evidence u/s 133 of the Evidence Act. In the
evidence of the approver, it has been mentioned that the
accused, Chandra Prakash, was engaged in the supply of materials
for solicitation of money for the commission of offence under
the 1908 Act. Possession of huge quantity of ammonium nitrate
without any plausible explanation by the accused, Chandra
Prakash, corroborates the evidence of the approver.
22. First, we shall deal with the issue of sanction. Section 7 of the
1908 Act reads as follows: -
“7. Restriction on trial of offences. – No Court shall proceed
to the trial of any person for an offence against this Act
except with the consent of the District Magistrate.”
23. The learned counsel for Abdul Mateen has submitted that no consent
has been granted by the Central Government. In this context, we
may refer to the decision in State of M.P. v. Bhupendra Singh[1].
In the said case, the consent for the prosecution was granted by
the Additional District Magistrate by notification dated 24.4.1995
issued by the State Government. The High Court has quashed the
proceeding as there was no sanction. This Court concurred with the
said view on the ground that it was within the domain of the
Central Government to delegate the authority and, in fact, the
Central Government vide notification dated 2.12.1978 has entrusted
to the District Magistrates in the State of Madhya Pradesh its
consent under Section 7 of the 1908 Act. Thus, there could be
delegation by the Central Government to the District Magistrates.
24. It is relevant to note here that the consent was given by the
concerned District Magistrate as Ext. P-277/278. His authority was
not questioned. What was urged before the Court was that there had
been no application of mind inasmuch as the relevant materials were
not placed before him while according sanction. When such a point
was not raised, the consequences have to be different. In this
regard, reference to a two-Judge Bench decision in Erram Santosh
Reddy and others v. State of Andhra Pradesh[2] would be
appropriate. In the said case, the Court has observed as follows:
-
“7. The last submission is that no sanction was obtained from
the Central Government as laid down under Section 7 of the
Explosive Substances Act for prosecuting the appellants for the
offences under the Explosive Substances Act. From the judgment
we do not find that any such objection was taken. In any event
from the record we find that the Collector granted permission
and this must be pursuant to the delegation of powers as
contemplated under Section 18(2) of the ‘TADA’.”
25. From the aforesaid, we come to the conclusion that the District
Magistrate had the authority to give consent for the prosecution.
26. The next facet of the challenge pertaining to sanction is that the
sanctioning authority had not perused the relevant materials. The
learned trial Judge, upon scrutiny of Ext. P-277/278, has expressed
the opinion that the approval had been granted after perusal of the
materials on record. The High Court has observed that the
consent/sanction order is a self-speaking and detailed one. It has
also been held that all the facts have been taken into
consideration by the District Magistrate and the entire police
diary was made available to him at the time of grant of
sanction/approval. With regard to the authority of consent as
postulated in the 1908 Act, reference to certain authorities would
be fruitful. In State of Tamil Nadu v. Sivarasan alias Raghu alias
Sivarasa and others[3], the Court, while dealing with the effect of
Section 7 of the 1908 Act, has observed as follows: -
“Section 7 does not require a sanction but only consent for
prosecuting a person for an offence under the Explosive
Substances Act. The object of using the word “consent” instead
of “sanction” in Section 7 is to have a purely subjective
appreciation of the matter before giving the necessary consent.”
27. Thereafter, the Court proceeded to state as follows: -
“We do not think that for obtaining consent of the Collector for
prosecuting the accused for the offence punishable under the
Explosive Substances Act it was necessary for the investigating
officer to submit the statements of witnesses also, who had
deposed about the movements of the accused and their activity of
manufacturing bombs and grenades. We, therefore, hold that the
consent given by the Collector was quite legal and valid.”
28. In view of the aforesaid, the approval/consent granted by the
District Magistrate in the obtaining factual matrix cannot be
treated as vitiated.
29. The third aspect of challenge to the sanction is that the District
Magistrate has not been examined as a witness to prove the order of
sanction. On a perusal of the document, we find that the same has
been proven by the competent person and the document has been
marked as Ext. P-277/278. We are of the considered opinion that
the examination of the District Magistrate to prove his consent is
really not necessary.
30. In view of the aforesaid analysis, the submission relating to the
invalidity of the consent, as stipulated in Section 7 of the 1908
Act, does not commend us and, accordingly, the same stands
rejected.
31. The next issue, to which we should advert to, pertains to the delay
in holding the test identification parade. The submission of Mr.
Balaji Srinivasan, learned counsel appearing for accused Abdul
Hamid and Raies Beg, is that there has been enormous delay in
conducting the test identification parade in respect of accused
Abdul Hamid and Raies Beg. There is no dispute that both of them
were arrested on 8.6.1997 and the test identification parade was
held on 25.6.1997. Thus, it is evident that they were arrested
long after the occurrence but the test identification parade was
held within a period of three weeks from the date of arrest. As
the analysis of the trial court shows, they could not have been
arrested as the materials could not be collected against them and
things got changed at a later stage. In this regard, we may refer
with profit to the decision in Ramanand Ramnath v. State of
M.P.[4], wherein identification parade was held within a period of
one month from the date of arrest. This Court observed that there
was no unusual delay in holding the test identification parade.
32. That apart, the witnesses, namely Prem Prakash Gupta, PW-78, and
Mohit Jain, PW-30, have identified them in the Court. In State of
Maharashtra v. Suresh[5], it has been held as follows: -
“We remind ourselves that identification parades are not
primarily meant for the court. They are meant for investigation
purposes. The object of conducting a test identification parade
is twofold. First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is really the one
who was seen by them in connection with the commission of the
crime. Second is to satisfy the investigating authorities that
the suspect is the real person whom the witnesses had seen in
connection with the said occurrence.”
33. The said legal position has been reiterated in Anil Kumar v. State
of U.P.[6] Recently, in Munna Kumar Upadhyay alias Munna Upadhyaya
v. State of Andhra Pradesh through Public Prosecutor, Hyderabad,
Andhra Pradesh[7], a two-Judge Bench has observed thus: -
“66. There was some delay in holding the identification parade.
But the delay per se cannot be fatal to the validity of holding
an identification parade, in all cases, without exception. The
purpose of the identification parade is to provide corroborative
evidence and is more confirmatory in its nature. No other
infirmity has been pointed out by the learned counsel appearing
for the appellant, in the holding of the identification parade.
The identification parade was held in accordance with law and
the witnesses had identified the accused from amongst a number
of persons who had joined the identification parade.”
34. In view of the aforesaid, the submission that there has been delay
in holding the test identification parade does not really affect
the case of the prosecution. It is also noteworthy that the
witnesses had identified the accused persons in court and nothing
has been elicited in the cross-examination even to create a doubt.
Thus, we repel the submission advanced by the learned counsel for
accused Abdul Hamid and Raies Beg.
35. The next facet to be addressed is whether the evidentiary value of
the testimony of approver Pappu, PW-1, is required to be
considered. Learned counsel for the State has drawn our attention
to Section 133 and illustration (b) to Section 114 of the Indian
Evidence Act, 1872. They read as under: -
“133. Accomplice .- An accomplice shall be a competent witness
against an accused person; and a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of
an accomplice."
Illustration (b) to Section 114
“(b) The Court may presume that an accomplice is unworthy of
credit, unless he is corroborated in material particulars.”
36. The aforesaid two provisions came to be considered in Bhiva Doulu
Patil v. State of Maharashtra[8] wherein the Court held as follows:
-
“The combined effect of Sections 133 and Illustration (b)
to Section 114, may be stated as follows:
According to the former, which is a Rule of law, an
accomplice is competent to give evidence and according to the
latter, which is a Rule of practice it is almost always unsafe
to convict upon his testimony alone. Therefore, though the
conviction of an accused on the testimony of an accomplice
cannot be said to be illegal yet the courts will, as a matter of
practice, not accept the evidence of such a witness without
corroboration in material particulars.”
37. In Mohd. Husain Umar Kochra etc. v. K.S. Dalipsinghji and another
etc.[9], the Court observed thus: -
“... The combined effect of Sections 133 and 114, Illustration
(b) is that though a conviction based upon accomplice evidence
is legal, the Court will not accept such evidence unless it is
corroborated in material particulars. The corroboration must
connect the accused with the crime. It may be direct or
circumstantial. It is not necessary that the corroboration
should confirm all the circumstances of the crime. It is
sufficient if the corroboration is in material particulars. The
corroboration must be from an independent source. One accomplice
cannot corroborate another.”
38. Having stated the legal position with regard to the statutory
provisions, presently we shall proceed to consider the requisite
tests to be applied to accept the credibility of the testimony of
the approver. At this juncture, we may sit in a time machine and
quote a passage from Sarwan Singh S/o Rattan Singh v. State of
Punjab[10] wherein it has been held as follows: -
“...An accomplice is undoubtedly a competent witness under the
Indian Evidence Act. There can be, however, no doubt that the
very fact that he has participated in the commission of the
offence introduces a serious stain in his evidence and Courts
are naturally reluctant to act on such tainted evidence unless
it is corroborated in material particulars by other independent
evidence. It would not be right to expect that such independent
corroboration should cover the whole of the prosecution story or
even all the material particulars. If such a view is adopted it
would render the evidence of the accomplice wholly superfluous.
On the other hand, it would not be safe to act upon such
evidence merely because it is corroborated in minor particulars
or incidental details because, in such a case, corroboration
does not afford the necessary assurance that the main story
disclosed by the approver can be reasonably and safely accepted
as true. But it must never be forgotten that before the court
reaches the stage of considering the question of corroboration
and its adequacy or otherwise, the first initial and essential
question to consider is whether even as an accomplice the
approver is a reliable witness. If the answer to this question
is against the approver then there is an end of the matter, and
no question as to whether his evidence is corroborated or not
falls to be considered. In other words, the appreciation of an
approver's evidence has to satisfy a double test. His evidence
must show that he is a reliable witness and that is a test which
is common to all witnesses. If this test is satisfied the second
test which still remains to be applied is that the approver's
evidence must receive sufficient corroboration. This test is
special to the cases of weak or tainted evidence like that of
the approver.
8...Every person who is a competent witness is not a reliable
witness and the test of reliability has to be satisfied by an
approver all the more before the question of corroboration of
his evidence is considered by criminal courts”.
39. In Ravinder Singh v. State of Haryana[11], this Court has observed
that: -
“An approver is a most unworthy friend, if at all, and he,
having bargained for his immunity, must prove his worthiness for
credibility in court. This test is fulfilled, firstly, if the
story he relates involves him in the crime and appears
intrinsically to be a natural and probable catalogue of events
that had taken place. … Secondly, once that hurdle is crossed,
the story given by an approver so far as the accused on trial is
concerned, must implicate him in such a manner as to give rise
to a conclusion of guilt beyond reasonable doubt.”
40. Similar principles have been reiterated in Mrinal Das and Ors. v.
State of Tripura[12].
41. In A. Devendran v. State of T.N.[13], the Court has registered the
view that there cannot be any dispute with regard to the
proposition that ordinarily an approver’s statement has to be
corroborated in material particulars. Certain clinching features of
involvement disclosed directly to an accused by an approver must be
tested qua each accused from independent credible evidence and on
being satisfied, the evidence of an approver can be accepted. The
Court further observed that the extent of corroboration that is
required before the acceptance of the evidence of the approver
would depend upon the facts and circumstances of the case, however,
the corroboration required must be in material particulars
connecting each of the accused with the offence, or in other words,
the evidence of the approver implicating several accused persons in
the commission of the offence must not only be corroborated
generally but also qua each accused but that does not mean that
there should be independent corroboration of every particular
circumstance from an independent source. The court proceeded to
state that all that is required is that there must be some
additional evidence rendering it probable that the story of the
accomplice is true and the corroboration could be both by direct
or circumstantial evidence. Be it noted, the said principle was
stated on the basis of pronouncements in Ramanlal Mohanlal Pandya
v. State of Bombay[14], Tribhuvan Nath v. State of Maharashtra[15],
Sarwan Singh v. State of Punjab (supra), Ram Narain v. State of
Rajasthan[16] and Balwant Kaur v. Union Territory of
Chandigarh[17].
42. In Chandan and another v. State of Rajasthan[18], the Court held
that so far as the question about the conviction based on the
testimony of the accomplice is concerned, the law is settled and it
is established as a rule of prudence that the conviction could only
be based on the testimony of the accomplice if it is thought
reliable as a whole and if it is corroborated by independent
evidence either direct or circumstantial, connecting the accused
with the crime.
43. In Haroon Haji Abdulla v. State of Maharashtra[19], the view in
this regard was expressed in the following terms: -
“An accomplice is a competent witness and his evidence could be
accepted and a conviction based on it if there is nothing
significant to reject it as false. But the rule of prudence,
ingrained in the consideration of accomplice evidence, requires
independent corroborative evidence first of the offence and next
connecting the accused, against whom the accomplice evidence is
used, with the crime.”
44. In Major E.G. Barsay v. State of Bombay[20], it has been observed
that this Court had never intended to lay down that the evidence of
an approver and the corroborating pieces of evidence should be
treated in two different compartments, that is to say, the court
shall first have to consider the evidence of the approver dehors
the corroborated pieces of evidence and reject it if it comes to
the conclusion that his evidence is unreliable; but if it comes to
the conclusion that it is reliable, then it will have to consider
whether that evidence is corroborated by any other evidence.
45. In Renuka Bai alias Rinku alias Ratan and another v. State of
Maharashtra[21], the Court held that the evidence of the approver
is always to be viewed with suspicion especially when it is
seriously suspected that he is suppressing some material facts.
46. In Ranjeet Singh and another v. State of Rajasthan[22], the Court
observed that while looking for corroboration, one must first look
at the broad spectrum of the approver’s version and then find out
whether there is other evidence to lend assurance to that version.
The nature and extent of the corroboration may depend upon the
facts of each case and the corroboration need not be of any direct
evidence that the accused committed the crime. The corroboration
even by circumstantial evidence may be sufficient.
47. Keeping in view the aforesaid principles which relate to the
acceptance of the evidence of an approver, we have bestowed our
anxious consideration and carefully perused the judgment of the
trial court and that of the High Court. Learned counsel for the
parties have taken us through the evidence of Pappu @ Saleem, PW-1.
He has clearly deposed that Abdul Mateen who is also known as
Iqbal, used to visit the Madarsa at village Farah. Abdul Hameed
and Abdul Mateen were seen at village Farah many times without any
reason before the incicent. As far as Abdul Hameed and Raies Beg
are concerned, he has deposed that both the accused used to go to
the house of Chandra Prakash in Roopwas to collect the “masala” in
a cover box. Both of them used to meet Abdul Mateen in the Madarsa
at village Farah on a number of occasions. He used to contact
Abdul Mateen from Firozabad many times and the watches fixed with
bombs as timers were given at Farah by Abdul Hameed to make the
bomb. It has also come out in his evidence that Pappu along with
Accused Raies Beg @ Raies Ahmad and other accused persons used to
visit the Madarsa at village Farah. His evidence also shows that
Raies Beg and Pappu used to bring explosive from Roopwas to village
Farah and he has mentioned that Raies Beg had brought five boxes of
“masala” for Rs.10,000/- from the house of Chandra Prakash and
those boxes were unloaded at the Madarsa in Farah. Pappu was asked
to carry the boxes along with Raies Beg and Abdul Hameed. He has
clearly deposed about the conspiracy that was told to him by
accused Abdul Mateen. As far as Chandra Prakash is concerned, it
had come in the evidence that though Pappu used to visit his house
at Roopwas along with other accused persons, yet he used to stay
outside the house of Chandra Prakash and the others used to go to
bring “masala” from the house of Chandra Prakash. The alleged
“masala” used to be brought in boxes from time to time to the
associates of Raies Beg and Abdul Hameed who used to come to
Madarsa at Farah.
48. From the analysis of the aforesaid evidence, it is clear that Pappu
as approver has implicated himself in the crime. He has not made
any effort to give any statement which is exculpatory. He has
spoken quite graphically about the involvement of all the accused
persons. Mr. Jain, learned senior counsel appearing for the
appellant, would contend that he has used the word “masala” but not
ammonium nitrate, but Pappu has clarified that though he was not
aware what was contained in the boxes, yet he was told by the other
accused persons later on that it contained certain explosive
substances. The said aspect has been corroborated from other
ocular evidence as well as the seizure.
49. Presently, we shall advert to the various facets of corroboration
in evidence against the accused persons. As far as Chandra Prakash
is concerned, on the basis of the approver Chandra Prakash was
arrested on 1.8.1997 vide Ext.P-37. On the basis of the
information of the accused, Chandra Prakash, the Investigating
Officer searched his house and godown and recovered 28 boxes of
ammonium nitrate. It has come out in the evidence that Chandra
Prakash opened the lock of the godown the key of which was in his
possession. Bhup Singh, PW-32, eye witness to the seizure of
articles from the godown of Chandra Prakash, has categorically
stated that the accused Chandra Prakash led to the recovery of red
and blue coloured bundles from the godown of the building. The
office of PW-32 was also in the said building. From the godown,
fuse wires and five kilograms of grey coloured material was also
recovered. The Investigating Officer, M.M. Atray, PW-71, has also
proven the factum of recovery. Shivnath Kuriya, PW-22, who had
accompanied the investigating team, has deposed that the explosive
which was used in the live bomb had ammonium nitrate/gelaltine.
Chetan Das Rawatani, PW-34, who is an expert witness in respect of
explosives, approved his report Ext. P-49 and has deposed that the
ammonium nitrate that was seized from the godown of Chandra Prakash
was in such a condition that it could be used to prepare a bomb.
50. Mr. Jain, as has been stated earlier, has seriously criticized
about the recovery from Chandra Prakash on the ground that when he
led to the discovery of the articles seized, he was not arrested.
In this context, we refer with profit to the decision in Mohd. Arif
alias Ashfaq v. State (NCT of Delhi)[23] wherein the Court opined
thus: -
“The essence of the proof of a discovery under Section 27 of the
Evidence Act is only that it should be credibly proved that the
discovery made was a relevant and material discovery which
proceeded in pursuance of the information supplied by the
accused in the custody. How the prosecution proved it, is to be
judged by the court but if the court finds the fact of such
information having been given by the accused in custody is
credible and acceptable even in the absence of the recorded
statement and in pursuance of that information some material
discovery has been effected then the aspect of discovery will
not suffer from any vice and can be acted upon.”
51. In this context, we may refer to the authority in Vikram Singh and
others v. State of Punjab[24], wherein while interpreting Section
27 of the Evidence Act, the Court opined that a bare reading of the
provision would reveal that a “person must be accused of any
offence” and that he must be “in the custody of a police officer”
and it is not essential that such an accused must be under formal
arrest.
52. In this regard, a passage from the Constitution Bench decision in
State of Uttar Pradesh v. Deoman Upadhyaya[25] is reproduced below:
-
“The expression, "accused of any offence" in s. 27, as in s. 25,
is also descriptive of the person concerned, i.e., against a
person who is accused of an offence, s. 27 renders provable
certain statements made by him while he was in the custody of a
police officer. Section 27 is founded on the principle that even
though the evidence relating to confessional or other statements
made by a person, whilst he is in the custody of a police
officer, is tainted and therefore inadmissible, if the truth of
the information given by him is assured by the discovery of a
fact, it may be presumed to be untainted and is therefore
declared provable in so far as it distinctly relates to the fact
thereby discovered. Even though s. 27 is in the form of a
proviso to s. 26, the two sections do not necessarily deal with
the evidence of the same character. The ban imposed by s. 26 is
against the proof of confessional statements. Section 27 is
concerned with the proof of information whether it amounts to a
confession or not, which leads to discovery of facts. By s. 27,
even if a fact is deposed to as discovered in consequence of
information received, only that much of the information is
admissible as distinctly relates to the fact discovered.”
53. In Anter Singh v. State of Rajasthan[26], after referring to the
decisions in Madan Singh v. State of Rajasthan[27], Mohd. Aslam v.
State of Maharashtra[28], Pulukuri Kottaya v. Emperor[29], Prabhoo
v. State of U.P.[30] and Mohd. Inayatullah v. State of
Maharashtra[31], this Court summed up the following principles:-
“16. The various requirements of the section can be summed up as
follows:
1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the
provision has nothing to do with the question of relevancy.
The relevancy of the fact discovered must be established
according to the prescriptions relating to relevancy of other
evidence connecting it with the crime in order to make the
fact discovered admissible.
2) The fact must have been discovered.
3) The discovery must have been in consequence of some
information received from the accused and not by the
accused’s own act.
4) The person giving the information must be accused of any
offence.
5) He must be in the custody of a police officer.
6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which
relates distinctly or strictly to the fact discovered can
be proved. The rest is inadmissible.”
54. In this context, it would be fruitful to refer to the ruling in
State of Maharashtra v. Damu[32] wherein it has been observed that:
-
“35. The basic idea embedded in Section 27 of the Evidence
Act is the doctrine of confirmation by subsequent events. The
doctrine is founded on the principle that if any fact is
discovered in a search made on the strength of any
information obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is
true. The information might be confessional or non-
inculpatory in nature, but if it results in discovery of a
fact it becomes a reliable information. Hence the legislature
permitted such information to be used as evidence by
restricting the admissible portion to the minimum.”
55. In Aftab Ahmad Anasari v. State of Uttaranchal[33], after referring
to earlier decisions, a two-Judge Bench, appreciating the material
brought on record, came to hold that when the accused was ready to
show the place where he had concealed the clothes of the deceased,
the same was clearly admissible under Section 27 of the Evidence
Act because the same related distinctly to the discovery of the
clothes of the deceased from that very place.
56. In Bhagwan Dass v. State (NCT of Delhi)[34], relying on the
decisions in Aftab Ahmad Anasari (supra) and Manu Sharma v. State
(NCT of Delhi)[35], the Court opined that when the accused had
given a statement that related to the discovery of an electric wire
by which the crime was committed, the said disclosure statement was
admissible as evidence.
57. As the material brought on record would show, the accused was in
the custody of the investigating agency and the fact whether he was
formally arrested or not will not vitiate the factum of leading to
discovery. However, it may be stated that the accused was also
arrested on that day. We have dealt with the issue that formal
arrest is not necessary as Mr. Jain has seriously contended that
the arrest was done after the recovery. As we have clarified the
position in law, the same would not make any difference.
58. As regards recovery from accused Abdul Mateen is concerned, it is
borne out from the record that after his arrest on 28.6.1997, he
gave information at 6.00 a.m. as contained in Ext. P-255, about
another bomb and on the basis of the said information the
Investigating Officer, PW-71, visited the spot along with the
accused and at his instance a live bomb was recovered which was
underneath the earth. In the said information the accused had
stated that the two bombs were inside the SMS Stadium and he could
verify the places by going inside the stadium. In the evidence of
Jai Narain, PW-6, Gopal Singh, PW-7 and Shivnath, PW-22, it has
come on record that the bombs were recovered at the instance of
accused Abdul Mateen on 28.6.1998. This fact has been corroborated
by Vinod Sharma, PW-16 and Gordhan, PW-10 who also accompanied the
investigating team. Shivnath, PW-22, had clearly stated that the
bomb recovered was high explosive time bomb and the battery was
inside the timer and the same was switched on and he further
confirmed that electric detonator was used in the bomb. Vinod
Kumar, PW-16, also stated that the electric detonator was found in
the bomb and the same was neutralized. Suresh Kumar Saini, PW-67,
in his deposition, gave description of loss caused due to the
explosion of the time bomb. He had further deposed that lid of
stainless steel of casio watch had been recovered from the scene of
crime.
59. On appreciating the aforesaid material, it is clear as crystal that
the said accused has stated about the fact of planting of bomb at a
particular site in the stadium and led to the said place from which
the bomb was recovered. The submission of Mr. Jain is that such
material cannot be put against the accused being inadmissible in
evidence. In this context, we may refer to a two-Judge Bench
decision in Prakash Chand v. State (Delhi Administration)[36]
wherein the Court, after referring to the decision in Himachal
Pradesh Administration v. Om Prakash[37], opined thus: -
“There is a clear distinction between the conduct of a person
against whom an offence is alleged, which is admissible under
Section 8 of the Evidence Act, if such conduct is influenced by
any fact in issue or relevant fact and the statement made to a
Police Officer in the course of an investigation which is hit by
Section 162 of the Criminal Procedure Code. What is excluded by
Section 162, Criminal Procedure Code is the statement made to a
Police Officer in the course of investigation and not the
evidence, relating to the conduct of an accused person (not
amounting to a statement) when confronted or questioned by a
Police Officer during the course of an investigation. For
example, the evidence of the circumstance, simpliciter, that an
accused person led a Police Officer and pointed out the place
where stolen articles or weapons which might have been used in
the commission of the offence were found hidden, would be
admissible as conduct, under Section 8 of the Evidence Act,
irrespective of whether any statement by the accused
contemporaneously with or antecedent to such conduct falls
within the purview of Section 27 of the Evidence Act.”
60. The said principle has been reiterated in A.N. Venkatesh and
another v. State of Karnataka[38].
61. Tested on the touchstone of the aforesaid enunciation of law, the
submission of Mr. Jain leaves us unimpressed and we are inclined to
hold that the said fact is a relevant fact which is admissible in
evidence.
62. The next aspect that is to be adverted to is that ammonium nitrate
not being an explosive substance, mere possession cannot bring the
accused Chandra Prakash within the ambit of any offence. In this
regard, we may refer to Section 4(d) of the 1884 Act. It reads as
follows: -
“(d) “explosive” means gunpowder, nitroglycerine, nitroglycol,
guncotton, di-nitro-toluene, tri-nitro-toluene, picric acid, di-
nitro-phenol, tri-nitro-resorcinol (styphnic acid), cyclo-
trimethylene-tri-nitramine, penta-erythritol-tetranitrate,
tetryl, nitro-guanidine, lead azide, lead styphynate, fulminate
of mercury or any other metal, diazo-di-nitro-phenol, coloured
fires or any other substance whether a single chemical compound
or a mixture of substances, whether solid or liquid or gaseous
used or manufactured with a view to produce a practical effect
by explosion or pyrotechnic effect; and includes fog-signals,
fireworks, fuses, rockets, percussion-caps, detonators,
cartridges, ammunition of all descriptions and every adaptation
or preparation of an explosive as defined in this clause;”
63. Section 2 of the 1908 Act, which deals with definitions, reads as
follows: -
“2. Definitions. - In this Act--
(a) the expression "explosive substance" shall be deemed to
include any materials for making any explosive substance;
also any apparatus, machine, implement or material used, or
intended to be used, or adapted for causing, or aiding in
causing, any explosion in or with any explosive substance;
also any part of any such apparatus, machine or implement;
(b) the expression "special category explosive substance"
shall be deemed to include research development explosive
(RDX), penta erythritol tetra nitrate (PETN), high melting
explosive (HMX), tri nitro toluene (TNT), low temperature
plastic explosive (LTPE), composition exploding (CE) (2, 4,
6 phenyl methyl nitramine or tetryl), OCTOL (mixlure of
high melting explosive and tri nitro toluene), plastic
explosive kirkee-1 (PEK-1) and RDX/TNT compounds and other
similar type of explosives and a combination thereof and
remote control devices causing explosion and any other
substance and a combination thereof which the Central
Government may, by notification in the Official Gazette,
specify tor the purposes of this Act.”
64. Keeping in view the broad definitions of both the Acts, we are
required to see what has been seized from the accused Chandra
Prakash. What is evincible from the seizure report, Ext. P-42,
apart from ammonium nitrate, fuse wire and empty boxes were also
seized. That apart, 17 packs containing blue coloured fuse wire
kept in plastic (polythene) bags and four boxes containing blue
coloured fuse wire, “Sun brand safety fuse” numbered as 40208,
40158, 39937, 40203 respectively, one carton of explosives
detonating fuse measuring 1500 meters in length and 38 kg in
weight, containing four wooden logs of red colour, 375 meter wire
in each Gattha and black coloured cap fitted on the tip of the
wire, three cartons of explosive Belgelative 90 (Gulla Dynamite)
net weight of each being 25 Kg. with “Division I Class II safety
distance category ZZ Bharat Explosive Ltd. 9 KM Lalitpur (U.P.)
Date of manufacturing 4.6.97 batch No. 2” written on each box, four
packets of O.D. Detonator containing 1600 detonators, a substance
of light yellow colour kept inside a carton of paer in a plastic
bag weighing nearly 5 kg and 16 empty cartons, one of gulla and 15
of fuse wire, were seized.
65. Section 2 of the 1908 Act has a deeming provision which states that
explosive substance would include any materials for making any
explosive substance. Similarly, Section 4(d) of the 1884 Act has a
broader spectrum which includes coloured fires or any other
substances, whether single chemical compound or a mixture of
substances. That apart, as we find, apart from ammonium nitrate
other articles had been seized. The combination of the same, as
per the evidence of the expert witness, was sufficient to prepare a
bomb for the purpose of explosion. In addition to the same, huge
quantity of ammonium nitrate was seized and it was seized along
with other items. The cumulative effect is that the possession of
these articles in such a large quantity by the accused gives
credence to the prosecution version that the possession was
conscious and it was intended to be used for the purpose of the
blast.
66. The next aspect which needs to be adverted to is non-framing of
specific charge. On a perusal of the record, we find that the
learned trial Judge has framed the charges specifically by putting
the charges to the accused. The purpose of framing of charges is
that the accused should be informed with certainty and accuracy of
the charge brought against him. There should not be vagueness.
The accused must know the scope and particulars in detail. In this
context, we may refer to decision in Santosh Kumari v. State of
Jammu and Kashmir and others[39], wherein it has been held as
follows: -
“17. Like all procedural laws, the Code of Criminal Procedure is
devised to subserve the ends of justice and not to frustrate
them by mere technicalities. It regards some of its provisions
as vital but others not, and a breach of the latter is a curable
irregularity unless the accused is prejudiced thereby. It places
errors in the charge, or even a total absence of a charge in the
curable class. That is why we have provisions like Sections 215
and 464 in the Code of Criminal Procedure, 1973.
18. The object of the charge is to give the accused notice of
the matter he is charged with and does not touch jurisdiction.
If, therefore, the necessary information is conveyed to him in
other ways and there is no prejudice, the framing of the charge
is not invalidated. The essential part of this part of law is
not any technical formula of words but the reality, whether the
matter was explained to the accused and whether he understood
what he was being tried for. Sections 34, 114 and 149 IPC
provide for criminal liability viewed from different angles as
regards actual participants, accessories and men actuated by a
common object or a common intention; and as explained by a five-
Judge Constitution Bench of this Court in Willie (William)
Slaney v. State of M.P.[40] SCR at p. 1189, the charge is a
rolled-up one involving the direct liability and the
constructive liability without specifying who are directly
liable and who are sought to be made constructively liable.”
67. In K. Prema S. Rao v. Yadla Srinivasa Rao[41], the Court opined
that though the charge specifically under Section 306 IPC was not
framed, yet all the ingredients constituting the offence were
mentioned in the statement of charges. In that context, a three-
Judge Bench of this Court ruled that mere omission or defect in
framing of charge does not disable the criminal court from
convicting the accused for the offence which is found to have been
proved on the evidence on record. The said principle has been
reiterated in Dalbir Singh v. State of U.P.[42], State of U.P. v.
Paras Nath Singh[43] and Annareddy Sambasiva Reddy v. State of
A.P.[44].
68. In the case at hand, as has been stated earlier, the charges have
been framed and we do not find any vagueness. That apart, neither
any prejudice has been caused nor has there been any failure of
justice. Thus, the submission of Mr. Jain in this regard leaves us
unimpressed.
69. The next facet which deserves to be addressed pertains to the
criminal conspiracy. The submission of the learned counsel for the
appellants is that the learned trial Judge has inappositely drawn
certain inferences to show that there was a criminal conspiracy and
the High Court has, without delving deep into the matter, concurred
with the same. As per the evidence brought on record, it is clear
as crystal that accused Abdul Mateen, Abdul Hamid and Raies Beg
used to meet quite frequently at the Madarsa at village Farah. It
is also evident from the deposition of Kanchan Singh, PW-11, Shri
Chand, PW-12, Murari Lal Sharma, PW-13, and Ashok Kumar, PW-17,
that the accused Abdul Mateen, Raies Beg and Abdul Hamid used to
meet at the Madarsa at village Farah. That apart, Pappu had also
deposed implicating himself that when there used to be discussion
at madarsa in the village Farah about the suitable place for
planting the bomb, the timer of the bomb was supplied by Dr. Abdul
Hamid. The chain of events and the participation of the accused
persons which had the genesis in the discussion and the meetings,
the purchase of ammonium nitrate and other items, carrying of the
boxes to the Madarsa and all other factors cumulatively show that
there was conspiracy.
70. While dealing with the facet of criminal conspiracy, it has to be
kept in mind that in case of a conspiracy, there cannot be any
direct evidence. Express agreement between the parties cannot be
proved. Circumstances proved before, during and after the
occurrence have to be considered to decide about the complicity of
the accused. Such a conspiracy is never hatched in open and,
therefore, evaluation of proved circumstances play a vital role in
establishing the criminal conspiracy. In this context, we may
refer with profit to a passage from Yogesh alias Sachin Jagdish
Joshi v. State of Maharashtra[45]: -
“20. The basic ingredients of the offence of criminal conspiracy
are: (i) an agreement between two or more persons; (ii) the
agreement must relate to doing or causing to be done either (a)
an illegal act; or (b) an act which is not illegal in itself but
is done by illegal means. It is, therefore, plain that meeting
of minds of two or more persons for doing or causing to be done
an illegal act or an act by illegal means is sine qua non of
criminal conspiracy. Yet, as observed by this Court in
Shivnarayan Laxminarayan Joshi v. State of Maharashtra[46] a
conspiracy is always hatched in secrecy and it is impossible to
adduce direct evidence of the common intention of the
conspirators. Therefore, the meeting of minds of the
conspirators can be inferred from the circumstances proved by
the prosecution, if such inference is possible.”
71. The same principles have been stated in Pratapbhai Hamirbhai
Solanki v. State of Gujarat and another[47].
72. In Yakub Abdul Razak Menon v. The State of Maharashtra, through
CBI, Bombay[48], analyzing various pronouncements, this Court
opined thus: -
“68. For an offence Under Section 120B Indian Penal Code, the
prosecution need not necessarily prove that the conspirators
expressly agreed to do or cause to be done the illegal act, the
agreement may be proved by necessary implication. It is not
necessary that each member of the conspiracy must know all the
details of the conspiracy. The offence can be proved largely
from the inferences drawn from the acts or illegal omission
committed by the conspirators in pursuance of a common design.
Being a continuing offence, if any acts or omissions which
constitute an offence are done in India or outside its
territory, the conspirators continuing to be the parties to the
conspiracy and since part of the acts were done in India, they
would obviate the need to obtain the sanction of the Central
Government. All of them need not be present in India nor
continue to remain in India. The entire agreement must be viewed
as a whole and it has to be ascertained as to what in fact the
conspirators intended to do or the object they wanted to
achieve. (Vide: R.K. Dalmia v. Delhi Administration[49], Lennart
Schussler and Anr. v. Director of Enforcement and Anr.[50],
Shivanarayan Laxminarayan Joshi v. State of Maharashtra
and Mohammad Usman Mohammad Hussain Maniyar and Anr. v. State of
Maharashtra[51]).”
73. Testing the present factual matrix on the anvil of the aforesaid
enunciation of law, we are of the considered view that the opinion
expressed by the learned trial Judge as well as by the High Court
that there has been conspiracy between the parties to commit the
blast on a particular day cannot be found fault with.
74. Presently, we shall engage ourselves to deal with the conviction of
accused Abdul Mateen for the offence under Section 14 of the
Foreigners Act, 1946. The said provision reads as under: -
“14. Penalty for contravention of provisions of the Act, etc. -
whoever –
a) Remains in any area in India for a period exceeding the
period for which the visa was issued to him;
b) does any act in violation of the conditions of the valid visa
issued to him from his entry and stay in India or any part
thereunder;
c) contravenes the provisions of this Act or of any order made
thereunder or any direction given in pursuance of this Act or
such order for which no specific punishment is provided under
this Act, shall be punished with imprisonment for a term
which may extend to five years and shall also be liable to
fine; and if he has entered into a bond in pursuance of
clause (f) of sub-section (2) of section 3, his bond shall be
forfeited, and any person bound thereby shall pay the penalty
thereof or show cause to the satisfaction of the convicting
court why such penalty should not be paid by him.
Explanation. – For the purposes of this section, the
expression “visa” shall have the same meaning as assigned to
it under the Passport (Entry into India) Rules, 1950 made
under the Passport (Entry into India) Act, 1920 (34 of
1920).”
75. The learned trial Judge, analyzing the material on record, has come
to hold that the said Abdul Mateen is a resident of Pakistan and he
had no valid document to be in India. In his statement under
Section 313 of the Code, he had not disputed that he was not having
passport or visa and he is of Pakistan nationality. Thus, the
offence under the said Act has been held to be proved. The High
Court has concurred with the said view. In our considered opinion,
the offence under the said Act has been proved beyond reasonable
doubt.
76. In view of the aforesaid analysis, we conclude and hold that the
grounds assailing the judgment of conviction and the order of
sentence have no legal substantiality and, accordingly, they are
rejected.
77. The factual scenario of the instant case compels us to state that
these kinds of activities by anyone breeds lawlessness, fear and
affects the fundamental unity of our great country. A nation with
a desire to prosper is required to maintain high degree of law and
order situation apart from respecting “imperatives of
internationalism”. Certain individuals harbouring unacceptable
notions and inexcusable philosophy and, on certain occasions,
because of enormous avarice, try to jeopardize the cohesive and
collegial fabric of the State. This leads to national decay and
gives rise to incomprehensible anarchy. It reflects non-reverence
for humanity. Be it categorically stated, every citizen of this
country is required to remember that national patriotism is founded
on the philosophy of public good. Love for one’s country and
humanity at large are eternally cherished values. The infamous
acts of the appellants are really condemnable not only because of
the dent they intended to create in the social peace and
sovereignty of the nation, but also from the humane point of view
as they are founded on greed, envy, baseless anger, pride,
prejudice and perverse feelings towards mankind.
78. We have, in agony and anguish, have expressed thus because when a
devastating activity like the present one occurs on the Republic
Day of our country Bharat, it injures the nationality, disturbs the
equilibrium of each individual citizen, creates a concavity in the
equanimity of the peace of the State, generates a stir in the
sanctity and divinity of law and order situation which is paramount
in any civilized State, attempts to endanger the economic growth of
a country and, in the ultimate eventuate, destroys the conceptual
normalcy of any habitat. Law cannot remain silent to this because
it is the duty of law to resist such attacks on peace. It is
manifest that the accused-appellants had conspired to send a savage
stir among the citizenry of this country on the Republic Day. The
great country like ours cannot succumb to this kind of terrorist
activity as it is nationally as well as internationally obnoxious.
Such tolerance would tantamount to acceptance of defeat. The iron
hands of law has to fall and in the obtaining facts and
circumstances, as the charges have been proved beyond reasonable
doubt, the law has rightly visited the appellants and, accordingly,
we concur with the same.
79. Consequently, all the appeals, being bereft of merit, stand
dismissed.
………………………………J.
[K.S. Radhakrishnan]
………………………………J.
[Dipak Misra]
New Delhi;
May 9, 2014.
-----------------------
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[5] (2000) 1 SCC 471
[6] (2003) 3 SCC 569
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[48] 2013 (3) SCALE 565
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