Farooz Ahmed @ Farooq Ahmed & Anr. v. State NCT of Delhi

20. Regarding the entry ctateo ro JartvdLy).vw[1]) ' r cross-examined aird confronted' HQnoe' explanation was not sought' It is plausible that the said entry was made.after the entry on 27h February,2004'Thisisalapsewhichshouldnothavehappened'We notice that there are other entries dated 28th January,,.2004 and 21't February, 2004 andthen entry dated 27r'Febtuary'2004 occurs' After 27th Febru ary,2004 entry there is an entry dated 16th January,2004 {o "Today on l6t" January, 2004, l0 sealed containers with seal of GS, which are above hand grenades, are taken out of Malkahna in custody of police team from Hatyana, and after defusing thereof, the same are entered in Malkhana and now they are. under the seal KC." 21.., The 10 hand grenade, which were seized vitle Ex. PW33/A were sealEd with the seal of HB and were deposited in the Malldrana vide entries in ihe Register No. 19. Thereafter, as per the statement of V.B. Bardhan (PW[4]) on 6tr' October, 2003, the sealed parcels, which included 10 hand grenades, were opened by: him. On physical inspection of the hand grenades, PW-4 found them to be live. He advised the Investigating Officer to send ali the exhibits including hand grenades to laboratory for detailed examination. PW[4] gave his reporl dated. 9,h octobe r,2003,marked Ex. PW4/A whic! was signed by him at point,A,. The said report records that on 6d' october, 2003, ballistic expert frbm CFSL, CBI, in Delhi had'inspected the exhibits and these were resealed with the seal of 'GS' in thc presence of Baltistic Expert on the same day for further examination in the laborptory. The ballistic team of GFSL, CBI consisted of PW-4 and Ravinder Chauhan, SA (Ball.). PW-4 has stated that examination of 10 hand grenades could be undertaken after they were deactivated by the comp.etent authority as they were live. The repOrt with regard to the other 16 articles is Ex. PW4/8. This consisted of 10 grenade shells similarly the erectric detonato* and erectricar gadgetry systems were examined and opined upon. The aforesaid examination on 6il, october, 2001, resurting in reports dated 9,r' october, 2003 (Ex. pwV/Aand B), is before the date 16d' January,2004. pw[4], in his report, has crearry stated that hand grenades were live ones. Thereafter the,hand grenades were defused by the officers of Technical lVirrg, CID, Haryana, Madhuban, I(arnar: It has been deposed by Har Bhagwan (pw4g), that they visited the office of Delhi police, special ce, and defused the said grenad* uid, report Ex. pw4g/A. The said report records that r 0 sealed parcers, with the sear of GS on them folrowed with the specimen seal, were handed over to the Bomb Disposal Team by ASI paramjit singh (Pw38). The grenades were marked HDl to HG-l to HG-10 and seal of HB on a piece of croth was also contained in each parcer. The firing assembly of each grenade was unscrewed and separated from the body of grenade. Detonator.assembly was further removed:' from the firing mechanism of each grenade. The grenade were separated from the detonator assembly and' rendered safe for examination and transport. Thereafter the grenades, with separate parts, were put back in different parcels with seal of KC put on two places.;; The same parcels were returned to incharge rvlalkhana for I:j ai'vague query suggesting that the proceedings were wrong was put forth The aforesaid report (Pw4s/A) shows that the grenades were Iive ammuritions and were explosive substance. Thus, even if we disregard the FSL report on or after 16tr, Ianuary, 2004,there are forensic reporfs given by pwa and pw4g that 10 hand grenades recovered were live' The hand grenades thereafter were sent.for exafnination and report dated 16ft February,2004 was received with. the seal of A. Dey, (Ex. Pw44/A). A. Dgy,.principal scientific Oft'icer, Govt. of India, CBI, Delhi appeared as pW_44. In his separate reporf (Ex. pwaa/A), pw-44 has stated that the 10 parcers with the sear of 'I(V' were examined by him. The sears on the parcers were, ntact and tailied with the specimen sear received. I{e examined the 10 grenades which were olive green in corour with marking of 'ARGES'. on examination of the components in the received parcer,. he declared them to be 10 defused live.hand grenades. In the cros.s_ examination, pw-44 has stated.that pETN'lvas detected in hand grenacles b't this fact was not mentioned in the report. In these crcumstances, in spite of the lapse on the part of pw3g, we do not find any reason to hold that the prosecution has not been able to show that the 10 hand grenades were exprosive substance or live. we note that t' with the marking of ARGES, stands corroborated throughout. The grenades, in the present case, were examined by three scientific officers namery v.B. Bardhan (pw4-), A. Dey (pw44) and Har Bhagwan (pW48). 22- xhe 10 hand grenadq 10 grenade shels and the grenade launcher were sudected to forensic examination report at c.F.s.L., cBI, Lodhi Road, New Delhi. Their report'(Ex. pwa/B) iriscroses that the,grenade launcher was a fire arm as defined in the Arms Act, 1959 and the firing mechanism was in working order. similarry, the physical examination of the 10 hand grenade was made and it was observed that they were anns as defined in the Arms Act, 1959. The grenade could be smoothly launched in grenade launcher and were live. 18. and 5 detonators were arso examineci. on the physical examination of 3 electrical gadgetry systems it was obseryed that these could form components of three Remote controlled Devices and thev were in rgorking order. (Detonators and remote control devices were r,recovered from residence of 44 anc A[5].See the next heading ' involvement of 44 and A[5], raid and recovery.) FSL report Ex. 'Plv+lB further records rhat23 electronic detonators and the 3 electric;gadgetry "systems could form components of Improvised Explosive (t^' Explosive substances Ac! 1908. The author of the report, v.B. i Bardhan had appeared as pw[4]. He had proved his report dated 9fr october, 2003 Ex. pw4/A and stated that it was true and correct..He was iiiitially cross-examined on beharf of 44 and 45 on 11ft January,

2005. In the cross-examination.he affirmed that remote control devices are ordinarily used for exproding IEDs but.he courd not.say whether these,could be used for operating TV, car locking, operating Air.: conditioners or other electronic devices. pw-4 has categorically observed that in his long experience of 22years, he hacl not come. across, these devices being utilized for any purpose other than exploding IEDs. RCD mechanism had two parts i.e. receiver and transmeter which were used to activatb the IEDs. pw[4] was further. cross-e)(amined on behalf of the accused on 3Oft lrlovember, 2009. He has deppsed that he had.not mentioned seal impression on the exhibit examiried by him in his report (Ex. pwa/A). But, in his official worksheet, he had recorded the impression as HB and MCS. plf-4 mentioned that the worksheet did not record impression of resealing and neilher has it been mentioned in the inspection report. pw[4] volunteered and stated that the inspection was' carried out in the presence of the Investigating officer and denied the suggestion that e{

23. The encounter at Millenni'm/Indraprastha park resulting in the death of two, was made subject maffer of FIR No. 445/2003 under sections 786/353/307/4fi Ipc and 25/27 Arms dct and 3/4/20 porA: Act, registered at Police station, Nizariruddin.;As per the FIR two persons' namely Mumtaz Shaid @ zahoor resident of pakistan and i Rafiq Ahmed @ G'ddu @Hablb resident of.sil<andrabad, u.p. were killed in the encounter between 10.15 to 11.00 pM at Indraprastha Park, Ring Road, Sarai Kale I(han, Delhi.

24. As noticed above, A[4] and,A[5] are brothers, who as per the prosecution case was killed in Flabib @ Aslam, the encounter at Millennium Park, was brother of,{4 and.{5. The prosecution claims that A[4] and 45 were anested from their hous e at 390, r{aziwada, sikandrabad, u.P., by ACP Rajbir singh and Insp. M.c. sharma. ACp. nd3uir singh 4nd Inspector M.c. sharma had expired and did not enter the witness.box. To prove their case, the prosecution has relied upon the testimonies of sI Ranjan Kumar sharma (pw3l)_and Insp. Ambesh chancl Ty.agi (PW32). Both of them have stated that on 31.t Augusq 2003, they were posted at P.s. sikandrabad, u.p. pw-32 was the: Ambesh Chand Tyagi (pW32). Insp. Ambesh,Chand Tyagi (pW32) a,d ' umesh Barthwal (pw33) ancr other staff then joihed the investigation with ACP Rajbir singh and went to the house of 44 and As af r{aziwad'a. A[4] and.A[5] were interrogated fy ACp Rajbir singh. sI Ranjan I(umar Sharma (pw31) and Insp. Ambesh chand Tyagi (PW[3].2) have deposed that on interrogation, A[4] and,A' had confessed, on csrtain aspects. we ignore the said confession as it is not covered by Section 27 ofthe Evidence Act. what wil be covered by Section. 27 0f the Evidence Ac! is recoveqy of 1g erectronic detonators kept in a plastic jar with the herp of cotton on parchhatti:of the room, pursuant to the disclosure statement made by A[4]; and reiovery of 5 erectronic detonators, 3 R.c.D.s. and Rs.g[5],000/- in cash on the basis of disclos',re itatement made by 45, from the ground floor of the house from the iron ahnirah in the room, acljacent to thb lcitchen. The said articles, had been kept in a grey colour printed croth bag. The J detonalors were kept in a plastic jar with the herp of cotfon.. sI Ranjan I(nmar'sharma (pw31) and Insp. Amb'esh chand ryagi(pw32) have. depose! that the articles were sealed with the seai of,,M.c.s.,,and the 3 R.c.D.s. were covered into a cloth parcer *a were marked AR[1],. AR[2] and AR[3]. The cash was taken into possession vide seizure memo seizure memo Ex. pw3I/A. 44 and A[5] were searched and their personal search memos are Ex. p!t/3rlc and pw3lrD. These were signed pr sr Ranjan Kumar sharma (pw31) and Insp. Ambesh chand Tyagi (Pw32), at points A & B respectively. The accused arong with the case properry were brought to p.s. sikandrabad, U.p. and their statemqhts were recorded by the Investigating officer. SI Ranjan I(umar Sharma (pW31) and Insp. Ambesh ihand Tyagi (pW32) recognized 18 electronic detonators which wer-e marked Ex. pl (colly.)- The plastic jar was marked pw[2] and white cloth piece was ' marked Ex. p3- 5 erectronic detonators recovered pursuant to disclosure by 45, were correctry recogn ized by p[5] and are given Exhibit nos. P-4 (coty.). The 3 R.c.D.s. were given Exhibit no. p-5, P-6 and P-7. The cloth bag containing Rs.g[5],000/- was opened and the money was collectively marked Ex..p-g (corly.). In the cross_ examination, sI Ranjan I(umar sharma (pw31) has averred that there were no specific duty hours and they remained in the Police Station for 24 hours. About 5-6 police officials and other staff members had come to the Police station Kotwali on the said date. Initially sI Ranjan I(umar sharma (Pw31) could not recoilect how rong the police officials remained at the police Station, and later on he conected q {4 SI Ranjan l(umar Sharma (pW31) has deposed rhat he did ndt remember whether any general diaryentry was made lut the said entry was required to be made on arrival of outside police. pW31 ha,g deposed tha! in the appetan t A4-A5's house, another brother, mothei and sister were present. They came bacr< to the porice station at g.00 "t:t, nt 31 did'not remember whether any deparfue entry was made. ar 'srkandrabad porice station by the Derhi porice but it took 1 _ 2 hours to comprete the proceedings in the house of A4and 45. pw_31 has fi'rrther deposed thatt A[4] and 45 had not made any discrosure statement in writing to the Investigating ofiicer, in his presencg but they were interrogated verbaty. No pubric persons were joined in the saicr pioceedings. p\u31 has stated that he had irot seen detonators ' earrier, ACp Rajbir Singh had tord him about.the detonators after: recovery' No proceedings against A[4] and,A[5] vrere pending at their Police Station' It is apparent that pw31 was extensively cross_ examined but there is nothing to create a doubt or discredit his statements. 25' Insp' Ambesh chand Tyagi(pw32) too was cross-examined, at.length, and has stated that arcivar entry of Derhi porice,team was recorded at sikandrabad p.S., but he did not remernber its number. {a, -..t _*.. the proceedings but they reftised. pw32-did nc,t remernber the exact number of police officiars who had visited sikandrabad p.s., u.p. but they,were B-10 officers. No site plan was prepared by the - Investigating officer regarding the rocation of the house etc. and no prop:rly papers, regarding ownership and occupation, were collected. A[4] and A[5] were verbaily interrogated by the Investigating officer at j the spot. 26..Regarding the arrest of 44 and.4.5, and the recoveries from their residence at Sikandrabad, the learned counsel for the appellants 4 and 5 submitted that no contemporaneous DD entries were recorded at police station, sikandrabad, u.p. This is factually correct. However, this we. feel does not merit ignoring testirnonies of pW_31 _ SI Rarrjao I(umar sharma and PW-32 - Insp. Amresh chandra Tyagi, who were posted at the said Police station and had participated in the team effort under ' ACP Rajbir Singh by going to the house of..A[4] and 45 at 3g0. I sikandrabad, u.P. Pw-32 was s.H.o. of p.s. sikandrabad, u.p. we do not think that recoveries of the electrical detonators, the remote, control devices and the money i.e. Rs.85,000/- should be disbelieved and disriegarded. However, the question to what exten! the appellants 4 and 5'were involved and were part of the conspiracy with A[1] to 43 k

27. At the same time, recovery of Rs.g[5],000i= from the residence of A-4 and A-5 at sikandrabad is not substantial. we do not agree with the prosec,tion that recovery of money by itself shows ihat it was meant for facilitating or indulging in terrorist activities. The case of \-. --1 the prosecution is that A-4 and A-5 had received,hawala, money of Rs.[2] lacs, for which there is no materiar or erridence except the confessional statements Ex.pw-r3/o and r3tM. Ap per the,prosecution version, A-4 and. A-5 had used Rs.t,15,000/- out of the. said amount. There is no evidence or material to show where and how ' this money was allegedly spent. Neither is it the case of the prosecution that the detonators or remote control devices'seized were.purchased out of this money.

28. It has been submitted and, in our opinion, rightty that Inspector Govind sharma (Pw-49) was not a member of the raiding team, which had gone to premise s A-44, Mahindra park, Azadp'r, Derhi. The seizure memo Ex.PW-491D is signed by ACp Rajbir singh, Inspector M.c. shqrrma and S'b Inspector Mehtab at points A, B and c, respectively. It is not signed by pw-49, but the said wiiness had identified 6\ had expired. PW-49's deposition, to this effect,'was after the crossexamination, was closed dn 26th April, 2010. Thereafter, the prosecution filed an application under Section 311 Cr.P.C., which was allor,ved and ftirther examination-in-chief and cross-oxamination was conddcted on 26d' July, 2010. In his examination-in-chief, on the said date, PW-49 has stated that he was associated with the investigation with ACP Rajbir Singh. In the cross-examination he has stated that he was a part of the team led by ACP Rajbir Singh, which had gone to the:' aforesaid premises. However, this fact is not stated by PW-49 in his: statement under Section 161 Cr.P.C. What is more important is the statement made by PW-49 in his cross-examination on 26h April, 2070, in which he had stated that he was not a rnember of the raid.ing party constituted on 31't August,2003 and he wds unable to give details of the investigation done by ACP Rajbir Singh. On 31" August, 2003, ACP Rajbir Singh had purportedly seized a computer and some cash at the instance of A-1.

29. However, the seizure memo Ex.PW-491D and the recoveries made from the said premises cannot be disbelieved even if PW-49 was not a member of the raiding team. Veero (PW-10) and Mohd. Sultan (PW-l[1]) partly supported the prosecution case on the said aspect. PWlu s i.e., A-44, Mahincrra park, Azadpur, Derhi to Abdul Jabbar and his relatives. she had seen Mohd. surtan visiting the said house to meet Abdul Jabbar. she had arso seen A-1 visiting Mohd. Sultan and Abdur Jabbar. She idehtified A-r in the court. pw-1l has deposed thathe was a tenant of the aforesaid house and rcnew Khurshid Ahmad, a resident of Jammu IGshmir, who had introduced him to A-r, present in the court. He has deposed that on 24ft Augus t, 2003, A-1 came and informed that he had to purchase a computer for his brother and. somo decks for his shop. pw-1l remained with A-r for fwo days and they' had gone to Lajpat Rai Market to make these purchases and had also'. brought phones and decks.

30. Recovery of computer, phones, decks etc. is not.really rerevairt or material. Flowever, recovery of Rs.19.20 lais at the instance of and on the basis of disclosure statement made by A-1 is a relevant consideration keeping in view the facts stated and proved against him. Terrorist activities and viorence for which arms and arnmunitions are used, req'ire monetary support and backing. IVIoney recovered i.e. Rs 19.20la]<hs is substantial. There is no explanation. forthcoming from A-1 about the source and for what other purpose this substantial amount was to be utilized. (ry Dtsclosure statem 31.. As per the prosecution version,. A[1] had made two disclosure statements dated 31" August, 2003 and 1tt september, 2003, (Ex. Pw35/c and Ex. Pw g/A). statement Ex. pw35/c was witnessed by Inspector Arvind Kumar (Pw35). In this disclosure statement.{1 had.discldsed about (1) the phone calls made'to the Dubai resident on number 0097507151283; (2) his stay atMirzaHorel and Seema Lodge; (3) purchase of computer etc,; (4) purchase of mobilephone and sim; and (5) purchase of truck JI(-03-0153. The contents of the first disclosure statement can only be relied upon to the extent permitted under Section 27 of the Evidence Act. Further, the fact discovered should be relevant for the purpose of the present case. Evidence must have nexus ancl must be relevant to establish the guilt against the author. 32-,rn state (NCr of Delhi) v. Naujot santiltu (2005)11 scc 600, section 27 of the Evidence Act was examined in great depth and the contentions of the prosecution that it should include within its scope and ambit of 'facts discovered', 'arry mental condition of which any person,facts f"r of physical or material object which can be exhibited before the court. I-Iowever, once recovery of a physical or mateiial object is rnade, the inference drawn is not restricted to the recoyery alone or the facts discovered but information or lcnowledge of the accused i.e. the: psychological fact or mental condition that the accused was conscious ' and aware that the material or concrete object could be recovered from the said place. It is in this context, thatthe 'facts discovered, within the meaning of section 27 of the Evidence Act is not treated as i equivalent to the object produced.. It would be appropriate to reproduce the following passage from Fulukuri Kottaya vs. Emperor AIR1947 PC 67: "If this be the effect of Section Zl, tnte substances would remain in the ban imposed by the two preceding sections on confessions made to police, or by persoris in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all'that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers o.f the police will prove equal to the occasion, and that in practice the ban will lose its effect.

XXX XXX XXX i'...In th.i, Lordships' view it is fallacious to treat the ' 'fact discovered' *ithin the section as equivalent to the 6t n::t:i?l:*r1ffiylo thil fao. rnformation as to past:-t t:,*,lh:_P u: I history, o f th e obj..t;;;;;;;, "; r"'*ff"tJ':J,;-^^-.^-^r r ^ discovered. Infonr --: n,ro*^r_. +L^r,,r.,luttotr. supplied by,. a person in custody that "I will_ produ""'u l*if" concealed in the,.::l:*f l:-T.' d.oes not r""iJo tr,"";;;;;;'; l"*lf: H::::l'" gl'::*::.0 *Tt v[4];: ji# \J the informant....." 33': rnMohr- [nayoturah vs. state of Maharashtra (1976) 1 scc B2B, regarding the expression 'facts discovered',, it was erucidated that no doubt section 27 requ*es recovery of physicar or materiar object b't flre same is not restricted to the production thereof. It includes the place from where it was produced and the knowredge of the accused as to this. It was further observed:_ {nife is proved to tuurffirrriLt the orrenci n*;;;il;iLli[1] T.il,',:i#ffi:tT:i to the statemeni #;:ffi';:':Jo'JI fl.Jf1j"r",H'i stabbed A" these words are inadmirriblq,t;;;th;'d. not relate to the discovery of the knife in tfre frouse of "...The last but themost important condition is that only so much of the information as relates distinctly to th! fact thereby discovered is admissibre. The resi of the information has to be excruded. The word distinctrv means directly, indubitably, strictly, unmistakabty. Thl word has been advisedly used to limit and define the pc,ope of the provable information. The phiase distinctrv relates to the fact thereby discoverea is ftre rinchpin of the provision. This phrase refers to that part of tne information supplied by the accused which is the direct and immediate cause of the discovery. The reason and if the [6 ( given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attdches to, the rest of the statement which may be indirectly or remotely related to the fact discovered.',, 3tl; In the present case, the discrosure statement Ex. pw35/c of A-1 is,of limited use as the mobile phone. with IMEI NO. 35Q624899242906 and Hutch No. 9811499261 was recovered at. the time of personal search vide memo Ex. pw35/p but the call details which could have been easily collated, collected or ascertained, were not looked into. The fact that A-r had stayed at Mfuza Lodge and seema Lodge, is not really.incriminating per sq but use of a fake name or:identity is. Neither is purchase of computer by itself an incriminating fact. Regarding the purchase of tnrck No. rI( 03 0153, it waq already stationed at Qutub Road parking lot. Thus, according to us, the disclosure statement Ex. PW35/c is hardly relevant as far as section 27 of the Evidence Act is concerned.,However, the pros.ecution is certainly entitled to rely.rporr.th" leads or the clues givel npon interrogation of A[1] under section 8 of the Evidence Act since admissibilify and relevance, under the said section, is" independent of and not circumscribed by section 27 of the Evidence Act. Again in Naujot sandhu's case (supra), section g of the (a the accusecl was rerevan! if such conduct influences or is influenced by qny fact in issue or relevant fact. This can be either previous or sttbsequent conduct of the appelrant. In explanation 1 to section g Evidence A.t, it was explained that mere statements as distinguished u:- acts do not constitute conduct unless those statements "accompany and exprain acts oflrer than statements,,. The ilustrations appended to section g were thereafter referre{ to and.distinction was drarvn between a statement made to a porice o.io.", during the course of an investigation which is hit by section 162 cr.p.cand section g Evidence Act. Reference was made to the fotowing passage from. Prakash chantl vs. state @erhi Adrnn.) (1g7g)3 scc g0, wherein it has been observed: "Even apart from the admissib'ify of the information ' under Section, the evidence of the i"""rtigutirrg Ofn"", and the panchas that the accusecr rrao tiken"them to PWll (from whon_r he purchased the. *.uponj urra pointed him out and as corroborated by pwli rrln'r.rr would be admissible under Section g u, '.orrd*iiortrr" accused".

35. lhis brings us to the contentious issue of the confessionar statements made by trre appelrants A-1 to A-5 being Ex.pw_l3lF, r3/1, 73[11, i73tI' and r3y, respectively. These confessionar statements were'recorded under section 32 of porA by ujjwar Mishra (pw_13), p 6a a has deposed that on grh September, 2003, when he was working as Depufy commissioner of porice, speciar Brancrr, New Delhi in the ranl<'of superintendent of porice, he had recei'ed a request from Joint cP, special cerl to record confessionar statements of the appeilants A_ 1 ro A-5. The said appeilanrs were brought to his office by ACp Rajbir si'gh, the Investigating officer. ACp Rajbir singh was asked to leave the room and directed to send each accused one by one individ'a'y. A-1 to A-5 came inside his chamber separatery and he spoke to them. PW-13 warned them in Hindi, i.e. the language which they understood. and informed them that the statement shourd be voruntary and not under any compulsion, threat or coercion. He.warned them that the statement co'rd be read against them subsequentry at the time of triar. FIe asked them'to come after one day, thus, giving them time to ponder. over and decide whether they wanted to make a.confessionar statement. whatever he spoke to the appellants A-1 to A-5 was recorded simultaneously on the computer. The warning administered, advice given and the time of one day granted to A-1 to A-5 0n Bft september, 2003 wereproved by pw-13 and reflected in Ex.pw -r3/A, r3/8, r3/c, 13/D and, r3/E- These 'exhibits were.signed by pw-13 and the appellanrs A-1 to A-5. The appellants'A-1 to A-5 were produced on $ followed the same procedure by calling them one by one and asked them whether they would be willing to make confessional statement and that their statement should be free from pressure, compulsion or coercion. The appelldnts A-1 to A-5 separately and individually stated that they were willing to make confessional statement on their own without any pressure, threat or coercion. 'Before recording the staternents, the appellants A-1 to A-5 had given their C.eclarations in writing that they were making statement voluntariiy without any threa! pressilre or coercion. These declarations marked Ex.PW13ff, l3/H, 7311, l3lL and 13Atr were ciuly singed by the five appellants. 't Thereafter, PW-13 recorded confessional statements of A-1 to A-5 marked Ex.PW-13/G, l3/I, I3/I<, t3lM and l3/O,respectively. The five appellants had signed the said statements'at point A and PW-13 had signed the statements at point B. 36.. The contention on behalf of the appellants is that the aforesaid confessional statements have been recorded under threat, coercion and pressure; the confessions were not recorded by PW-13 himself in his handwriting but by SI Vinod Kumar of Special Branch and, therefore, there is violation of Section 32Q) of POTA; A-1 to A-5.were not sent to the judicial custody by Mr. T.S. Iftshyap (PW'aO), the then ACMM, 4o court; A-1 to A-5 were not provided legar assistance before their confessionar statements were recorded; procedurai safeguard nrentioned in sub-section 1 to 4 to Section 52 wereviorated; the confessional statements have not been recorded verbatim as mandated and required by law in trre language or tlie words used by the appeilants A-1 to A-5 and this can be gauged from severar words rike Atankwadi' Gatiwidhiyq Dainik, chalal<, uprabdh etc. which have been used in the confessionar statements though.this were not a part of parlance of persons conversant with urdu or Kashmiri Ianguage as they ar-e I{indi words clerived from Sanskrit language. 37 ' Before we examine the said contentions, it is rerevant to mention and examine the regar position on the staternents recorded under section 32 of poTA. sections 32 and52 of poTA reacr as under:_ I "section 32' Certainconfessions made to porice officers to bd taken into consideration._ (1) Notwithstanding anything in the code or in the Indian Evidence Act,. 1872 it oi ttii ), but,"u:*;;. provisions of this section, a confessio, *ua" iy-u plro" lefore porice officer not to*". in ranl< than. a Superintendent of police and recorded bV,u"fr"'fii." officer either in writing or on any mechanicar or electronic deiice like cassettes, tapes Or sound tracks from out of wljch sound or images can be reprodu.ced, shall be admissible in the trial of such person for an offence under this Act or thq rules made thereunder. and that if he does so, it may be used against him: Provided that where such person prefers to remain silent, the police officer shall not compel or induce him to make any confession. (3) The confession shall be recorded in an atmgsphere. free from threat or inducement and shall be in the same language in which the person makes it. '(a) The person from whom a confession has been recorded under sub- section (1), shall be produced before the Court of,a Chief Metropolitan Magishate or the Court of a Chief,Judicial Magistrate along with the original 'statement of lconfession, written or recorded on mechanical. or electonic,device within forfy- eight hours. '(5) The Chief Metropolitan Magishate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the persort so produced and get his signature or thumb impression and if there is any complaint of torh:re, such,person shall be directed to. be produced for medical examination before a Medical Officer not lower in rank than 'an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody. \ Section 52: Arrest.- (1) Where a police officer arrests a person, he shall prepare a custody memo of the person arrested. (z; tre person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the police station. (3) Whenever any person is arrested, information of his anest shall be immediately communicated by the police officer to a family member or in his absence to a relative of Such person by telegram, telephone or by any other mgans and this fact shall be recorded by the police officer under the signature of the person arested. (a) The person arrested shall be permitted to rneet the legal practitioner representing him during the course of interrogation of the accused person: Provided that nothing in this sub- section shall entitle the legal practitioner to 2013:DHC:8646-DB.14/: I ' 38.,, rn Naujot sandhu (supra), the supreme court examined the raw regarding "confessions,, and held that terminology..confessions,, is a: species of "admission" as defined in sebtion il ofthe Evidence Act. f section 24 of the said Act rays ciown that aconfession made under any..inducemen! threat or promise need not be proved to.the hilt. Thus, wher[1], it appears to the court that making of confession was caused bv.l- ' inducemen! trrreat or promise,,from a person.in authority, the. confession is riabre to be excruded. The expression,.appears,, does not carry.the same meaning as proved but it refers to a reasonabre probability that the confession could be a result of threa! inducement or pressure' Confessions are considered highly reliable as no rational person will make an admission against his intererst unless prompted by his conscience to tell the truth. Therefore, the court should be saiisfied that confession was made freely and voluntarily and not under hope or prornise of advantage, reiward or immunity or by force or by fear induced by violence or threats of violence. The maicer of the statement:i should'be made fully aware about the nature and consequences of: making,such a confession., 39' I.Iowever, under general law atrue confession made voluntarilv ' can be acted upon with slight evidence to be corroborated. (See Bharat a[9] accused has confessed"about his wrong doings in a letter to his close relative or where the confession is made to the Magistrate, it should be treated as highly incriminating evidence against the accused. Retracted confessions, on the other hand, require assurances that the retraction was an afterthought and the earlier statement was true. (see subramania Goundan. vs. stote af Marlras, lg5B.scR 42g). voluntary nature of a cbnfession and whether it is true and trustworthy are tvlo separate aspects and the secorid aspect need not be appliecl/examined where confession fails becaude it was not voluntary.

40. For the second test to be tenable i.e. "whether the confession is true and reliable", it requires comparison of the confession with the rest of 'the evidence in the light of th-e surrounding circumstances and probabilities. The court shoulcl be satisfied that the confession is credible, truthful and whether it naturally fits in with the rest of the evidence and surrounding circumstances i.e. probable catalogue of events. (See Shankaria Vs. Staie of Rojasthon, (1978) 3 SCC 43i[5]). However, corroboration'of material particulars does not imply that there should be meticulous examination of the entire material. Broad corroboration with the general trend of confession is sufficient. (See Parmanonda Pegu Vs. State of Assom, (2004) 7 SCC 779). 4\ 4r. The supreme court, 'thereafter, examined.the provisions of Terrorist and Disruptive Activities (prevention) Act, (TADA) and the judgment in the case of state vs. Narini, Qgg[5]) 5 scc 253 and,the opinion expressed by the three Judges Bench of the supreme court. Reference was also made to Jameer Ahmed L,s. state of Rajosthan, (2003) g SCC 673 andit was observed that terminology used in poTA was different from TADA and Section 32 of POTA postulates that the confession recorded under the said Section would'be only admissible against the maker and not against a third person/co-aciused. This was a significant departure made in the provisions porA viz. Ti\DA. tt: was accordingly held that confession made under Section 32(l) of POTA is admissible in evidence, but the Court must test voluntariness and reliabilify of the confession. The oflrer provisions of Section gz POTh are in the nature of procedural safeguards and are aimed to ensllre that cbnfessions made by the accused are free from threat ' coercion and pressure. The Supreme Court rejected the contention, after due deliberation, that Section 10 of the Evidence Act can be invoked in respect of the confessions made under Section 32 of pOTA by one co-accused against the other observing that once it is shown that the accused snapped out of the conspiracy, the accused,s n{ Referring to section 32 of porA, the s'preme court herd that the following peremptory prescriptions should be satisfied:_ "(a) The police officer sha'warn the acc.used that he is not bound to make the confession and if h, d;;;,;; may be used against him (vide sub_section fZl CUlifre confession shall be recorded in an atmosphere'free from threat or inducement and shar be iir the sam" rutrguug" in which the person makes it (viiie SuU_section (rTl:i The person from whom a confession has u..rr rrtora.a under sub-section (1) shall be produc.ed before the -Cli"i Metropolitan Magistrate or Chief Judicial Magistrate along with the original statement of confession,' within forty-eight houis (vide sub-section (4). (d) The CMIWCfiVt shall record rhe statem*r, ii any, made by the person so producecl and get iis signature and if there is any compraint of tort'r!, such person shall be directed to be produced for medicar, ' examination. After recording the statement and after ' medical examination, if nec;ssary, he shall be sent to jndicial custody (vide sub-section (5).,, 42- It was observed that these provisions go a'long way to screen and exclude confessions, which appeared to be.involuntary. Bre'ach of any of these requirements wourd have vital bearing on the admissibilify and eVidentiary value of the confession and in some cases may inflict a on confession which does not follow these mandatory fatal blow procebures. However, with regard to the provisions of section 52 of POTA, it was observed as under:i, 1"163. Now the question remains as to what is the effect observance of the requirements of sub_Section (2) read with sub-section (4) as wet as sub- Section (3j or one of them in the instant cases. Does it have a uearing on the voluntariness and admissibility of the confession. recorded uldel,Section 32(I)? Should these safeguards envisaged in section 52(1) be telescoped into section. 32? These are the questions which arise. 164, In our considered view, the violation of procedural safeguards under section 52 does not stand on the same fcioting as the vioration of the requirements of sub-Secttgn[1] (Z) to (5) of Section 32. is akeady observed, sub-Sections (2) to (5) of section 32 have an integral and inseparable connection with the confession recorded u1de[1] Section 32(l). They are'designed,to be, checks against involuntary confessions 4nd io provide an immediate remedy to the person making the confession to air his grievance before a iudicial authority. These safeguards are, so to say, woven into, the fabric of section_32 itself and their observance is so vital that the breacir thereof wilr normaly resurt in eschewing the confession from consideration, subject to. what we have said about the judicial custoay. the prescriptions under Section 52, especially those. affording an opportunity to have the pr.rrn." of the,legal practitioner, are no doubt supplemintal safeguards as they will promote the guarantee againsi self_ incrimination even at the stage.of interrogation; but these requirements raid down in section 5icannot be projected into section 32 so as to read alr of them as constifuting a code of safeguards of the same magnitude. To hold that the violation of each one of the safeguards envisiged by Section 52 would lead to automatic invalidation of confession would not be in consonance with the inherent nature and.scheme of the,respective provisions. However, we would like to malce,it clear that the denial of the safeguards under sub- Sections Q) to (a) of Section 52 iii|- be one of the ielevant factors that would weigh with the court to act upon or discard the confession. To this e>ltent 43:..*o* we tum to the factuar matrix of the present case to satisfy ourselves whether confessions by the appellants A-1.to A_5 were voluntary and to what extent can they be co'sidered credible and true. on the question of voluntariness of the confession it is significant that the,,appellants A-1 to A-5 did not at ury time retract from their confessions though the proceedings continued.from 2003 onwards till the pronouncement ofj'dgment on 3'd January, 2011. The apperlants A-1,to A-5 have been ably assisted by the counsels, indeed the two counsels appearing before this court have been thorough in terms of. preparation and arguments. we do not think that the factum trrat a-t to A-5 had agreed to make confessions by itself can be'a ground or reason to hold that the confessions made by them were involu ntary, madd under pressure, coercion or threat. pw-13, pjjwlr Mishra was cross;examined, but there is nothing in the cross-examination to suggest that there was any inducemenl threa! pressure or coercion or the sdatement made by PW-l[3], in examination-in-chie{ was factuallv wrong and incorrect.

44. we do not agree with the contention that a psychologist should j have been called to examine the mental status of the five accused' before their confessional statements were recorded. More importantly A-1 to A-5 were produced before Mr. T.S. Kashyap (PW-36), the then ACM\4, Tis Hazari on 1Oil' September,2003. PW-36 has deposed that ACP Rajbir Singh was. asked to leave the chamber. Frorir a sealed envelot',e five typed confessional statements reborded by PW-13 were takeir out and separately read over to each of the appellant concerned. PW-36 enquired from each of the appellant whether they were torLured or Compelled to make confessional statement but they denibd torture ot' compulsion. PW-36 thereafter recorded statement of the appellants A- 1 to A-5 that there was no torhrre or compulsion. A-1 to A-5 signed the proceedings recorded by PW-36 marked Ex.PW36/B.

45. PW-36, when cross-examined has stated, that he had not informed the appellants A-1 to A-5 that after recording of statement they would be sent to judicial custody and he had also not warned them that the statements made by,Jhem would be used against them or they were nbt bouncl to make the said statement.

46. In Nuujot Sandhu's case (supra) the alleged confession made by Afzan Gum/Shokat was disregarded since only.5-10 minutes time was given.to the accused to thinlc/reflect before his confession. It was observed that this was an utterly inadequate time to reflect before making a confession as an accused persoil must be given an 4\ _J_------retraction though the State pleaded ttrat it cam'b after considerable delay. We may note that the accuse d Afzanwas sent to police custody for a week, at the instance of Investigating offic er, after the ACMM had clrawn up the proceedings for the reason that he was required to be taken to certain places in I{ashmir for frrther interrogation. However with reference to Section 32(5) of POTA, it was observed, that th.e provision regardingjudicial custody cannot be read to be nrandatory so as to apply in all situations. If the Magistate is satisfied that the confession appears to have been made voluntarily and ttre person concerned was not subjected to any.torh-rre or iritimidation, he need not be clirected to be talcen in judicial custody':

47. In the present case,.PW-36 has stated.thaq after the proceedings:' were over, the appellants A-1 to A-5 were handed over to ACP Rajbir Singh for sending to the Court of the Additional Sessions Judge, ' Special Court, pOTA. The appellants A-1 to A-5 weie produced before the Additional sessions Judge on 19h September, 2003 and thereafter they were sent to judicial custody. The ACMM could not have directly sent the appellants A-1 to A-5 to judicial custody as the I earlier order of police remand was passed the Additional Sessions Judge. Qo

48. Examination of Trial court record reveals that the appellants 41 to y'.[5] were remanded to police custody for.i0 days by Additionar sessions Judge vide order dated 31"August,2003. Thel,were directed. to beproducedbn 1Oil'September,2003. on r0e september, 2003,the appeilants A[1] to 45 were produced before the Additional.sessions Judge, Debignated court, patiala House, where ACp Rajbir singh had filed an application that the said appellants A[1] to 45 should be sent to judicial custody. on this apprication itsel{ Additional Sessions Judge, Designated court, passed an order recording t\tat arequest was made for sending the appellants to judicial custody but it was 6.20 pM and the jail would be closed at 7.00 pM, hence A[1] to.A[5] should be produced on 11th september, 2003. Investigating officei: ACp Rajbir Singh, as the'order records, had furnished a sealed envelope bearing seal of T.s. Iftshyap, Metropolitan Magishate, which was taken on.record. on 1ltl' September, 2003, flre accused were sent to judicial custody. 49- The trial court record further reveals that 44 and 45, through their mother shakila Begum, had engaged services of Malviya & co., Advocates,.vide vakattnama executed by them on 2nd september, 2003.'on the basis of this Vakalatnama, an application had also been 4\ The cause titre of the said application refers io FIR No. 7012003 and to the name of Atik & Rais i.e. 45 and A[4].. The said application nrentions that on 3l.t Angnst,2003, at about 6.00 AM, three persons had come to Shakila Begum's residence at Silcandrabad and informed that Habib @ Rafeek rJzzmahad died and fl,'ee other sons A[4], As and Laiq uzzama were taken to rocar porice station, Burandshahr, U.p. LaiqrJzzama was.made to sign some brank papers and other two sons were taken away by.Acp Rajbir singh. There are other grounds of grievance in that application

50. Referring to the famous u.S. s'preme court case Mirandu vs. Arizona' 384 us 436, n Naujot sandhu (supra), the supreme court emphl'rsized on the importanc'e of assistance of a counsel, even at the stage of custodial interrogation. It referred to Nanclini sutpathy vs. P-L. Doni (1978) 2 scc 424, and observed that it would be too much. to eipect the person in custody to know the fasciculus of porA provisions regarding confession and provisional safeguards available to him. It was further highlighted that section 52(3) of porA enjoins that information of arrest should be immediately communicated by the police officer to the family members or in iheir abse'ce to their relative. It was observed that section 5z(3) of porA was on the 6u r997(l) SCC 416 and it was pointed out that failure to inform thel relatives leads to the accused not being provided a meeting with the lawy'er or otherwise seeking legal help. In lWohgmmetl Ajmal Mohgmmorl Amir lfusqb @Abu Mujahid vs. state of Maharashtra. AIR'2012 sc 3565, the question of admissibilify and procedurar I requirements mandated before the confession is admissiblg under Articles 2l and22(r)of the constitution were examined scnrpurousry. It was observed as under:_ "484.' We, therefore, have no hesitation in. holding that. the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizabre offence is first produced bgfore a magistrate. We, accordingly, hold that it is the dury and obligation of the tiaiist ate before whom a person accused of commiiing a cognizable offerrce is first produced to make him fiitly aware that it is his right to consult and be defended by a legal practitioner and, in case he has rio means to engage a lawyer of his choice, that bne would be provided to. him from regar aid. at the expense of the State. The right flows from Arricles 21 uniZZltl of the constitution and needs to be strictry enfor"'ei. we, accordingly, direct ail the magistrates in the colintry ro faithfully discharge the aforesaid duty and obrigation and further make it crea' that any failure to-fuily. discharge the duty wourd amount to dereliction in dufv ' and wo'ld make the concemed magistoat" riuur.-tl departmental proceedings. 4 85. It needs to be clarified here that the right to cons"ult and be defended by a legal practitionerls not to be 6e collrt proceedings. The accused would need a lawyer to resist'remand to porice or judiciar custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of section 164 code of criminal Procedure; to represent him when the court examines the charge sheet submitted by the porice and decides upon.the future course of proteedings and. at the stage of the framing of charges; and beyond that, gf course, for the trial. It is thus to be seen that the righi to, access. to a lawyer in this country is not based on the '/ Miranda principres, 4S protection 'against selfincrimination, fur which there are more than adequate safeguards in Indian laws. The right to access to a lawyer' is for very Indian reasons; it flows from the provisions of the constitution and the statr-rtes, and is only intended to ensure that those provisions are faithfully adhered to in practice.,,

51. Thereafter, the Supreme court examined the legal effect of !. failure to provide legal aid to an indigent who was not in a position, on account of indigence or any other similar reasons, to engage a.Iawyer. It was held that every accused unrepresented by a lar,vyer must be provided a counsel at the commencement of a trial unless he voluntarily makes an informed decision in unequivocal words that he does. not want assistance of an advocate and/or would personally defend himself. This is ftindamental to,Ihe principle of fair trial and a failure in this regard would vitiate the trial and the resull in quashing the conviction and sentence. However, it was observed that failure to provide a lawSier to an accused at a pre-ttial stage would not have the $x fail're had resulted in prejudice to the accused in the course of the triaf for which the facts have to be judged on case to case basis. supreme court, however, cautioned that failure at pre-trial si:age is not to be tal<en iightly and the Magistrate who fails to take notice of the

I. said fbct may be liable to disciplinary proceeclings. The accused may gf aim compensation for failure of the state to provide him legal aid.

52. on th-e question of language used whil,e recording the confession, y/e would like to refer to a Division Bench judgment of this courr in Harbuns singh & ors. vs. state (2006j 3 RCR (c ri) 23, wherein the'"contention raised was that the statements were not recor'c1ed in first person and the warning was given in English, the t' confession was recorded in Hindi, whereas the accused could onlv comprehend urdu. This contention was rejectedl after noticing that the DCP in question (ujjawal Misra) was not questioned or crossexamined whether the warning was givel in English. It was observed that Hindi and urdu were alcin to each other and the words of spoken,Flindi are understood by an Urdu speaking.person. The requirerrient of Section 32(3) of PoTA is that the confession should be recorded in a a free atmosphere and in the language which the pefson understands.,,: The confessions have been recorded in Dgvnagari script on a i ':i q{ confession was not recorded in the same language which was used by the person making the confession. use of same languiage/words cannot by it;self suggest that the actual words by the appellants were not recorded.

2 In the present case, pw-13 was not specifically cross-examined r\ O rro raru a$pccr ano no questlons were put to hrm. The requirement of sub-section (1) to Section 32 of porA is that the police officer not lower than the Superintendent of Police should record the confession in writing or in any other mechanical or electronic dwice. s,e do not think that the Section postulates that the police officer cannot take help or assistance of a third person to record the said confession in writing: or on mechahical or electronic device. There is,no such bar or prohibition. lhus the fact that PW-13 had taken assi.stance of a typist to record the.confession cannot be a ground to thrcw out the same from our consideration.

54. The Division Bench judgment of this courL in Harbans singh (surpa) was made subject matter of challenge before the supreme Court but the appeal was rejected in the decision reported as Harbans singh vs. state (Govt. of NCT of Delhi) Q007) 12 scc 535. In the said case, the following contention was raised and answered:q( *72...She stated that she did.not tell the accused persons that at this stage they could call their counsel and consult them and that she did not tell them that they could be provided with an advocato on that day at government expense. she said that she herserf made no attempt to provide any advocate to the accused. Admittedly, the fwo accused persons were sent to judicial custody immediately aft.er the confession. The cMM, however, stated that she did not tell the accused persons that they would not be sent to police custody even if they did not confirm the statenrents. she stated that she had completely. satisfied, herseif that the accused persons were free from all duress and coercion and had not conducted the proceedings in a mechanical way. she statecr that she. had gone through the provisions of POTA and only thereafter conducted the proceedings.

13. The Fligh Court has recorded a finding that the prosecution has sufficiently proved that the confession of the accused was genuine and it was made and confirmed by the Chief Metropolitan Magistrate as per the provisions of Section 32 of POTA. As seen from the record, the recovery of the money immediately after the kansaction in question has been sufficiently provecl...."

55. At this stage, we may go back in point of time and refer to another clecision of the Supreme Court in Mohmerl Amin Alias Aynin Cltoteli Ralrim Miyan Shoiktt and Anr. ys. Central Bureuu of Investigation (2008) 15 SCC 49. Theappellants/accused therein were 'facing prosecution uncler TADA. The Supreme Court made reference to their earlier clecisions rn Gnrdeep Singh vs. Stote (Dethi Admn.) 4^ Singh vs. State of Gujarut (2001) 3 SCC 22I, fay aw nnt D attatruava Surytc1y61s vs. Statl of Moharnshtra Ahmed vs. State of Rajasthan e003) 9

SCC 673, and other cases and it was opined: "31- The ratio of the above noted judgments is that if a - person accused of an offence under the Act makes a confession before-a porice officer not berow the rank of superintendent of porice and the same is recorded rry the officer concerned in writing or o" *v mechanicar. device like cassettes, tapes or sound tracks fr;;;;;,;f " which, sounds or images can be reproduc"d, then such confession is admissibre in the tridtf the mater as also the coi;accused, abettor or conspirator not only for an ' offence under the Act but arso for offencefr; u"a., other. enactments, provided that the co-ac.,rrro, abeftor or conspirator is charged and tried in the same case arong with the accused and the court is satisfied, that requirements of the Act and the Rures have been complied with. Whether such confession requires ' co'oboration depends on the facts of the given case. If the court is convinced that the probative"varue of the confession is such that it does not require corroboration then the same can be used for convicting the makeiand/or the co-accused under the Act andior the other enactm ents without in dep endent c orro b oration. '32. rf a'person accused of commifiing an offence under the Act challenges his confession on-the ground that it was not made vorrurtarily, the initial burden is on the ' prosecution to prove that all requirements under section 15 of the Act and Rule 15 of the Rures have been cornplied with. once this is done, the burden shifts on the accused person and it is for him to prove that the 'confession was not made voruntarily or that the same is not truthful and if he adduces evidence during the trial to snbstantiate his arlegation that flre confessioi was not voluntary then the.ourt has to carefuily The cbnfession made under section 15 of the g.ct caru?.ot be discarded only on the ground of violation of the guidefines laid down in Kartar singh case [(1994) 3 scc 569: 1994 scc (cri) B99l because the same have ' not been incorporated in the Act and/or the Rules.

57. Ai'the cosf of repetition, it deserves to be nilntionea that bqfore recording confession, each of the appelrants ' was told by the officers concerned that he is 'ot bound to make confession and that if he does so, it may be used as evidence against him. The officers concerned also recorded their satisfaction in writing: that the \-- accused was making confession voluntatily. The statempnts of the confessing appelrants were'recorded in a room where no one except the Superintendents of. Police, cBI concerned and stenographers were present. After completion of recording,. statement made by the.. individual accused was read. over to him and he appended the signah*es after finding that the recording. was correct. Thereafte[4] the officers concerned again noted that the confessions have been made voluntarily, appended their signatures and sent confessiona.l. statements to the Chief Metropolitan Magistpate, Delhi for being forwarded to the Designated Court at Ahmedabad. Appellants A-4 to A-8 were not producerl before ihe Chief Metropolitan Magistrate because their confessions were recorded before the judgmeni of Kartar Singh case l(1994) 3 SCC 569: 1994 SCC (Cri) 8991 but Appellant A-10 was so produced on25.-7- 1996 ai per the guidelines laid down ii Kariar Singh case l(7,994) 3 SCC 569: 1994 SCC (Cri) B99l. It is thus evident that there was total compliance with the mandate of law in recording the confesiions of six appellants."

56. In tight of the aforesaid decisions, we accept hnd hold that the confessional statements of A[1] to,4.5, Ex. PW13/F,.H, J, L and N, can r r. t l. be relied upon"as meeting the mandates of POTA. 'We are inclined to 6^ with' The requirements of Section 52 havebeen also substantiailv. complied with though there have been some lapses in the case of A[1] to

43. we reject the submission of the appellants A[1] to 45 that the confessiondl statements have been recorded under'force, coercion or by way of inducement. As noticed above, the confessional statements -were not retracted from at any time by the appellants. It is only in their v Section 31i;cr.P.c statements, in response to question No.'83, it was il stated that (here was torfure and pressure by the police to sign some papers wnif were prepared by the Investigating officer himself and later on produced as confessional statements. 41,in his statemen! under section 313, has stated that pw36, ACMM, TisHazan, had only enquired abgut age and parentage (see answers to questions.g[4] to 92). Sirnilarly A[2] and 43, in response to question No. g[4] ancl g[5] have stated that tley were torfured and pressurized by police to sign some ! papers which were prepared by thg Investigating officer and later on produced as confessional statements. with regard to the proceediirgs before the AQMM, they stated that he had enquired about the age and parentage onJl.,{4 and,{5 in their statements u'nder section 313 Cr.P.C. have averred on similar lines. These statements were record.ed in Septembei; 2010, that is nearly 'l years after; the confessional t statements qo i t'

57. This brings us to the contents of the confessional statements and whether thgy were "sufficiently" corroborated by the evidenbe placed on record,.in order to ensure that these can be relied upon for the purpose of deciding the question of guilt. As observed above, the averments lflcts mentioned in the confession can be accepted or relied rpon if the saicl facts are generally corroborated or can be supported by some other evidence or material. This is the safefy test, which has to t' be applied. ' I

58. A[1], in his confessional statement had given names of some terrorists operating in Kashmir including those frorn across the border. I{e had crossed the line of control and visited Muzaffarabad and eueta for training before retr-rrning. He accepted his connebtion with Jaish-e- Mohammed', and defined his primary role to be' the facilitator in.....! establishing.contacts on both sides and to bring meney to terrorists. In october, z})z,IGurshid Ahmed Butt had purchased the tmck JK03 0153 fro* huwala money and the said truck was being used for carryingarms and money for ter:rorist activities. It wab mainly driven by I,',*rurshid'himself. While in Delhi, A-1 staye d at Mirza Hotel and Seerira Lodge at Jama Masjid area under the assumed name of Gulzar Ahnred Butt. In July, 2003, he had purchased a ne\,v sim card bearing I 4\ ', called Flabib and asked him to come to Azadpur fruit market. when he saw Habib, he recognized that Habib was the same person with whom he had taken training in Afghanistan but there he was known as Aslam- Later on he came to know that Habib,s acfual name was Rafique r/o Quaziwada, sikanclrabad, u.p. He and I(hirrshid had o'ght a big bug which contained rifles, magazines, pistors, detonators, RCDs hnd bullets etc. whiih was given io them along with,j Rs.10 lacs. 'The confession of A[1] (Ex. pw13./F) further records that Rasirid had contacted him and told him to bring a tenorist of pakistani orig.in named zahoor who had to execute terrorist activities in Mumbai, to Delhi. A-1 bro'ght Zahoor to Delhi and introduced him to I Habib and informed Rashid on phone. on 25tr'August, 20a[3], Rashid. asked him'to collect Rs.20 lacs. For this he got in touch with one Rahul in Dubai for the money, who asked him to wait. Rashid contacted.{1 on his mobile phone on26th August, 2003. A[1] received I a call from telephone No. 35888 654 and, asked him to come to petrol Pump near.\zadpur fruits market at 2.00 pM. He went there and collected Rs.10 lacs fi'om a person sitting in a car. 'Thereafter, at 5 ir O0'clock, he lreceived another call from the same number and was.i asked to come to a location where remaining amount of Rs.10 lacs was ' i. I qu verificatio"ir regarding whether tire money had, been received. As directed by Rashid, he had purchased computer and elechonic gadgets from Nehru Place for taking them to Kashmir. Long range cordiess phones ancl ftw other purchases were. made from Lajpat Rai Market. Tlre remaining money and articles were lying at A-44,Mahindra park, Del]:i, the place provided by I(hurshid. on 31't Augusq 2003, the aforesaid articles were recovered including remaining money of Rs.19, 20,000/- approximately. Remaining portions of the said. confessional statements are not relevant as the said statements cannot be used to establish involvement of,A.[4] and A.5. 5g.' we accept the prosecution version that A-1 had adopted the name Gulzar. This is proved from the hotel registers (Ex. pw_5181 to

92) The telephone number 981148926l obtainecl in the name of Gulzar by A-1 is also proved as telephone instrument with the said I number was seized from him at the time of his arrest vide personal search memo Ex. PW-35/p.

60. The last part of the confession (Ex. pw13/J) states that l(hurshid' had directed A[1] to'remain in Dethi because consignment of arms and ammunitionb were, to reach on 28th August, 2003 and. were to be hancled over to I{abib. Thereafter, the truck driver parvez (h-2) q[9] and, therefore, did not take delivery of the said consignment.. Once again on 30th Augnst, 2003, Pawez A-2 contacted and asked him to take deliveiy of the consignment from the truck which was parked at sadar Bazar at Qutub Road. A[1] spoke to Habib on his mobile No. g8gl4230gg[2]. Thereafter, he went to take delivery of the consignment but'was arrested with Parvez and. Firdaus @ Farooz A[2] and, A[3]. -/ Consignment was to be handed over to Habib and Z*toor who were killed in the encounter at Indraprastha Park, Nizamuddin.

61. Parvez A-2, in his confession has stated that he had worked as bus conductor for four years before he started driving busfirucks. He became acquainted with I(hurshid Ahmed while he used to supply f,triis in his trruck JI( 03 0153. On26h Augus! 2}}3,I(hurshid had conre to his house with the consignment to be deli.,'ered at Delhi. On 30d'August,2}}3,I(hurshid revealed to him that he workeci for Jaishe-Mohammed and his trr-rck was used for terrorist activities. A-2 was implored to join for the callse of Jihad in Kashrnir. After hearing I(hurshid, A.[2] became passionate and agreed. I{or,vever, he could not bring the consignment of arms to Delhi immediately as he had to attend a marriage in his relation. He spoke to Feroz (A[3]) who agreed to accompany him for the sake of Jihad and the community. On 27n t\{ loaded, he informed that tlu'ee boxes had been kept in the toor box on the r:oof of the tn-rck. They contained fruit babughosha and one of the boxes had arms and ammunitions in it along with babughosha. He informed that a short heighted person named Gulzar would come to take the aforlesaid boxes at Azadpur Mandi. I(hurshid gave mobile No. -811489261. of culzar and instmcted him to speak to Gulzar after reaching Delhi. on 28tr'Augus! 2003, after he had crossecl Karnal, A- 2 spoke on telephone to Gulzarand informed him that they would be treaching Azadpur by 9.30 pM. Thereafter he ihformed Gulzar that he I would not be able to reach the mandi in time. when they reached ! Azadpur, he again made a car to Gulzar who told them that he would come on the next day, but he did not come. They parked the truck at Qutub Road, badar Bazr,* with the three boxes. on 30th August, 2003, rre rnode'a call to Gulzar who informed him that he would. come in the I evening to take the articles. In the evening, a short height person came,i who toid his name as Gurzar, and talked aborri the articles after giving Khurshid's reference. They unloaded the box of arms and ammunition aird two other boxes, when they were apprehendeci. i.'l 62..A[3], Farooz Ahmed has stated in his confession that he started his work as an agricultural labour and helper for the trucks,.in his i -l AIn. vlw in school.for three years and knew l(hurshid Ahmed from Darangbar village, Pampor as they worked on different trucks. on 26h August 200.[3] Pawez instigated him to work for jihad and take consignments of. arms and, ammunition for Jaish-e-Mohammad organization by concealing.them in fruit boxes in the Truck No. JI(_03_0153 with Paweez. on27th Angust,2003 Khurshid came to A_2in his truck ful \-_.-: of fiuit boies and tord A-2 thatthree boxes are kept separately in the tool box on,the roof of the truck in which,baboghosas, were kept and o't'of them'one box contained arms and ammunition which were to be given to a short height person named Gurzar (A-1), n Azadpur Mandi, Delhi. At that time I(hurshid was with A-2. on 28ft August 2003 truck:' r'vas brought in Azadpur Mandi, Delri. A-2 had, ca]red Gulzar near Karnal and was tord that the box wourd be coilected the next.day. Flowever, the next day box was not coilected. Then, on 30,h Aug'st Gulzar said he would corlect the box in the evening and the rocation was told to him. In the evening a short height person \-,rho, A_2 apprised him, was Gulzar, cameand, witrr A-2,sherp; checked the box. The three were unroading the boxes when the police apprehencled. fthem. I 63- As far ds recovery of hand grenade etc. from the truck at euhrb !,' K materiar. The statements made by A[2] and 43 (Ex. FWi3/H and Pw13/J), to this exten! sho'rd be therefore, accepted. In fbc! even in the confessional statements (Ex. pw[1] 3/H & J),. there is sufficient 'i evidence or materiar to show that two of them i.e. the truck driver and the crearter had transporfed the ammunition and brought it to Derhi. which were seized in the operation at eutub Road parking, sadar Bazar on 30tr'August, 2003. The other portions of Ex. pwl3/rl and PW13/J, perfain to terephonic conversation befween A[2] andAl and 'the fact that l(hurshid, owner of the kuck had given terephone number of 1'1 to A[2]. The factum rerating to terephonic conversation is arso proved and estabrished. From the conduct of A[2] and.A[3], when they c'limbecl on the truck with A[1], opening of the three boxes, thereafter when the contents thereof were shown to A[1], it transpires thbt A[2] and. 43 were aware of and had knowredge about the contents and that these were'arms and ammunition. Evidence discussed above proves that the truck had entered Azadpur Mandi with consignment of appres. Thereafter the truck was parlced at eutub Road parking at sadar Bazar. Apples were not found to be loaded at the time whe'the polic e pars had conducted the operation on 30ft $.ugu st, 2003,but onry three boxeq of babughoshas were found. The said boxes *1.r. placed in the tool bbx. This qa three bo>ies were not to be unloaded or sord to traders and this consignment.was meant for a specific person i.e. A[1]. other portion of the confession Ex. pw13M and pw13/J elucidate that A[2] and 43 were propelred and had agreed to carrythe consignment after speaking to Kh'rshid, the owner of the trucr< who was arso member of Jaish_e_ Mphammad. The confessions do not sho.w that A2and 43 accepted l- -involvement in other offences or had earlier transported arms and '.:. ammunition or were involved in transportation of hawala money. This is an indicator that there was no force/coercion and the statements were voluntarily end were not recorded under threat and coercion. '

64. The confession made b[1] 41 has several parts and is much expatiated. we need not refer to the earrier par' of the confession which relates to his past activities and involvement in terrorist activities, hawala transactions etc. For the pu{pose of present pro$ecution,.Ex. pwl3/F by A[1] is relevant to:the extent it records that 41 knew Khurshid Ahmed, owner of the truct and he was aware that the tmck was carrying ammunition. A[1] was also in touch with Habib: @ I{afique, brother of A[4] and 45. He had purchased sim card 9811489261 and had made call to Rashid at Dubai ancl Rashid had spoken to him through satellite, phone. I{e had statecl that he had q[1] Habib @ Rafique and his brother Atik. It is pertinenr to mention here that this portion of the confession cannot be used against Atik/As, the co-convict/accused (see,Nauiot sandhusupra). A[1] has confessed that he was car.red by pawez A-2 onhis mobile phong after the truck had, reached Derhi on 2gft August, 2003. However, atthattime he courd not get in touch with Rafique/I{abib and, therefore, did not.receive delivery of consignment. on 30th Augus! 2003, A[2] hadasked him to take the derivery and apprised that he had parked the truck at sadar Baqar, Qutub Road parking. In this regard,,he had spoken to Erabib @ Rafique on his mobile No. 9g91423092 and had gone to receive the consignmenf at eutub Road parking, sadar Bazar, when he was apprehenclecl. Thereafter, trrere was encountei at Indraprasth a park, Ring Road, ilIizamuddin, where Rafique @ Habib and, zahoor died. Thus, as per the version of A[1], the consignment consisting of grenade etc' was to be given to Rafique @Habib. A[1] had not said from where and how and for what purpose the ammunition was to be used. A[2] and, 43 were completely silent about the same in their confessions. A[1] had recognized dead bodies of Rafique @Habib and Zahoor at the AIIMS Moffuary (see statement of PW[2] Const. Arvind'Singh, Ex. pW2lA and.; PW2/B and Identification Memo Ex. pW49/B). \"o E i 3/others.. ' 65. This brings us to the involvement of A[4] and A[5] and their confessioilal statements and whether they were part of the consp iracy which included transportation and. bringing of the consignment of an:munitign to Delhi and its delivery to their brothor Rafique @Habtb. l' It is accepted and admifted position that A[4] and 45 are brothers and Rafiqne @ Hablb was also one of their-brothers. It has also been proved beyond doubt that A[4] and A[5] hAd gone to pakistan in september, 2001 on valid passport and visa, but their passports did not have the requisite stamp of re-entry into India. This is proved from the statement of B.N. Dass (pwlB), Jai Kishan Dahiya(pwl[9]) and Flari Prakash T)'agi (Pw-20). B. N. Dass (pw1g), superintent passporr office, Ghaziabad,,.IJ.p., has deposed that he had furnished passport details of.A[4] and 45 vide letter dated 29tr' september, 2003 (Ex. Pw18/A). Pw-19 has testified to the passport bbing issued to the said appellants. Pw-20, Hari prakash Tyagi from Bureau of Immigration, Atrafi, has,iieposed that they had furnished infornation vide letter dated 24n' September, 2003 (Ex. pw19lB) regarding issue of passports to A[4] and A.,5. Prt/-20 has deposed that he had worked at Immigration t datecl 13d' september, 2001 but the register shows that the said person:. had not returnecl via r.ail through Attari from pakistan. He had the details of passport, the visa and that,{5 was to go to I(arachi, pakistan..; similarly 44, Mohd. Riaz had left India and entered into pakistan on.rl- | 13"' septepber, 200r. But as per the entries in their originil record, he O n..i not retumed. The entries in Register in question were marked Ex. Pw20/A and pw20lc. A[4] and 45 were confronted with the aforesaid factual position when their statements under section 313 cr.p.c. were recorded arid they had accepted that they had gone to pakistan to visit i' their fraternal grandfather at r{arachi, on a three months visa. In response to.'why there were no entries of their refum to India, they i.e A-4 and,A-S had stated as under:-.. ' "Ans., It is correct that we had gone to pakistan on 13.9.200r, in the first week of December 2001 we had approached the Ministry of Externar affaiis (Indian Division) Govt. of palcistan for the extensi6n of visa and had submitted passports and were to collect the passport on 13.72.2001. on 13.12.2001 when we went to the.ministry, we fo'nd the division was closed and it was also informed to us because of attack on Indian Parliapent no business was being transacted and we were asked to come after few days to collect the ' passport. Since we were not having passport..and no intimation was given to the local poiiCe regarcling our furtle[1] 9tay, the local police raided the house oT *y maternal grandfather to apprehend us. We escaped, from the back door of the house and our maternal grandfqthermanaged our safe return to India through ' tr\ \ )ou: ns at Bikaner and we came to our house in the 2nd week of Februaqy,2002.. 66' The reply clearly indicates that they had stayed baclc in pakistan much beyond 3 months and their re-entry into Inclia was nr:t registered and, was illegal. 67., confbssional statement of Atique (A-5), Ex.pw-13/o is more !t I expatiated.in comparison to A-4's confessional statemenl (Ex.pw_.', 13/M). 45 has stated that he went to Pakistan and undertook training in Jais-e- Molamm ad, organized camps. He ultimately returned to India thropgh Bangladesh in January, 2003. He has purportedly also confessed that his deceased brother Rqfiq @ HabIb had dpprised him ' and A-4 that terrorist would strike at Mumbai and for that all three of them had gone to that city to arrange for a hideout. under the fake identify of I(halik a flat was purchased at Thane rurder the pretext of 'jari workshop' but in reality for conce'aling of arms and ammunitions and for stay bf 'Fidayeen' terrorists from pakistan. A-5 resiied atthat place, under the fake identify of l(haril<, and maintained communication with some terrorists through e-mail, telephone and other modes.: of communication. He maintained contact with his brotlrer Rafiq @ Habib on mobile numbers 9811759307, 9891469114 i ' and 9891 423092. on 14l15d'Jnly, 2003 he, along with Rafiq; had gone \"9 on 1g/20il'Jury, 2003, A-5 and Rafiq had taken abagcontaining 01 Ar( Rifle, " 02 pistors, iive cartridges in sufficie,nt quantity, some detonators 'and 03 remote contror devices from ja person, namely, Gtlzar. At:$at time there was another person, whose name he did not lcno.w. They had spent some money out of Rs.[2] racs. The remaining,... -outrt of Rs.85,000/- along with 03 detonators and 03 remote contror devices was recovered from their ho'se. on 5/6rh A.ugust, 2003,Rafiqhad shown A-5, the Mumbai stock Exchange.and informed that this bnilding wo*ld be their targetfor,Fidayeen, attack. Thereafter, Rafiq had gone to sikandrabad and they tallced regularly on the phone. Rafiq had apprised:that a hideout has been arranged in sangam park, Rana Pratap Bagh, Delhi and, a plan to purchase a truck in which arms, arnmunitions.and terrorists wourd be taken to Mumbai was discrosed. -[he source of funding would be parcisian. on 26ft Augu st,2003,Rafiq: @ Habib informed him that zahoor, a terrorist from pakistan would meet him at R-pna fratap Bagh and in a few days consignment of arms and ammunitions wourd a:rive and some more terrorists wourd join. Rafiq had calied A-5 to Delhi to take the consignment of arms and ammunitions and terrorists to Mumbai. on 29th August, 2003, he had ' ri left N'{umbai !o reach sikandrabad on 306 August, 2003. A-4 was \o* 68- From the.statement of A-4 a4d A--5, recorded under section 313. cr.P.c., it is apparent that they admit the poiition that they had gone to Pakistan on three rnonths' visa on r3/r4th september, 200r and had continued to stay there. Their re-entry in India is not recorded. A_4 and A-5 accept that they did not retum to India legaily but _ randestinely and surreptitiously. They claim that the said re-entry was in the second week of February 2002 and not in January,2003. Their reasons for, overstay in Pakistan, as per the confessional statements,. was to underl.ake training in terrorist camps after they had joined,Jaise-Mohammacl'. In view brtrr" statements made by A-a and A-5, under section 313 cr.P.c., their over stay has to be accepted and the confessional statements stand corroborated. There is. iecovery of detonators and remote control devices from the house in Sikandrabad -n 31't Augtrst, 2003. However, no fire arrns or live explosives, which could be used for firing, were recovered or detectecl. Rafiq, brother of A-4 and A-5, had died in the firing in the night intervening 30-31't August, 2003.

69. At the same timg there is no evidence or material to show that A-4 and A-5, after their return to India, in February,2002 or lanuary, 2003 had directly been involved or were indulging in any specific Y( i the allegbd planning of terrorist strikes in the cify of Mumbai, Maharashtra. The prosecution has not placed on record any evidence that A-4 a1d A-5 were directly in touch with A-1 or were contacting A_ I on telephone. There is no evidence to show that A_4 and A_5 had rented a place at Thane, though in the expatiated confessionar statement details of the said flats had been provided. There is no material to show ttrat A-5 h.ad assumed a fake identity oi KhuliL fo, taking the flat. There is no incriminating material or evidence placed ' on record r,'iz. the mentioned flaf tenancy, fake identity e!c.. 70.' In pe*agraph 57 above, we. have referred to.safety test, of sufficient conoboration of confessional statements. It. requires comparison with surrounding circumstances and prclbabilities and does. not imply meticulous examination of entire material. Broad and general trend may be suffrcient (see paragraph 40). The,safety test, canriot be put in a strait jacket. on some aspects by their very nahrre, evidence would be diffic,lt or impossible to ccillect and produce. For example it would be willy-nilly impossible to collect evidence of terrorist camps or membership/instructions from terrorist organ ization baserl abroad., how they operate and other related i4formation. But cin other aspects, like fake identity adopted in India, tenancy right, \'(' j may be available. Investigation shouid endeavor to iollect and prodtrce the, best and most reliable evidence. complacency and lack of investigation/verification and reriance on confession arone may read to diffic'lties lbr the prosecution. A practical and pragmatic approach. is required but the court should be satisfied that the confession and parfs Jereof reliefl upon are tnre and correct. Failure to investigate, collect and produce.evidence which should be available, on the p'etext that confe'ssion oh the said aspect is relied upon, can raisd suspicion and doubt viz. theprosecution case. Such doubt if raised,. accrues/comes to the benefit of the accused, i.e"., A-4 and A-5 in the present case. 77.,The next q'estion is whether A-4 and, A-5 were part of the criminal conspiracy in transportation of the hand grenades etc. which were recovered and seized from A-1 to A-3. As discussed above, we clo not find ariy materiar or evidence to prove and estabrish that hand grenades, devices and launcher recovered and seized on 30th Augurfi 2003 from A-1, to A-3 were to be used in a pre-determined or verifiabie terrorist attaclc, which had already been planned. The prosecution,s claim that the movement of fire arms i.e. hand grenades etc. was for terrorist attacks at Mumbai/Bombay stock Exchange is not supported by any evidence other than the confessional statements of A-4 and A_5. 45, Zrcquisition of flat at Mumbai etc. for the terrorist strike. The said portion of 14," confessional statements,. as we have recorded, does not: inspire confiilence and cannot be accepted in view of lack of slightest corroboration. we are not inclined to accept the proiecuti.n version, that.L-4 and A-5 were part or members of the conspiracy, which had. ]ulfed in transportation and sending of hand grenades, grenade shells and grenade launcher to Delhi. A-4 and, A-5 are entitled to benefit of doubt in vieral of lack of evidence. to establish the said charge beyond, tlre realm of 'suspicion. The fact that A-4 and A-5 were brothers of: Rafiq @ Habib does not and canno! in the absence of other material and eviderce; prove or establish consp fuacy amongst of A-4 and A-5. and 4-1 to A-3 beyond doubt. No fire afins or live ammunition were recovered from the house. What happened to the fire arms and cxplosives allegedly delivered in a bag on rg/2}tt' Jvly,2003 by Gulzar(A[1]) is not indicated. Investigation did not examine and veri$r the said facts or elaborate what happened to the said fire-arms and explosives.

72. criminal conspiracy, as defined in section l2LAlpc, requires agreement between two or more persons to do or cause to do an illegal act or an act, which is not illegal, by illegal means. The gist of an \11 P[4] {: or by indulging in illegal means. parties will be guilty of criminal i conspracy even if the illegal act agreed to be done has not been done. Furf:her, the illegal act may.consist of series of ilegar means or acts. The offence continues to be committed tilt the conspiratorial agreement is l:erminated by performance, abandonment, and frustration or therwise. fhe agreement may be express or implied or parily so, but mere knowledge or even discussion of a pian is perse not enough. we are conscious that when there is unity of object and purpose, the offence of conspiracy is proved, though there may be plurility of means, sometimes even unknown to some of the members. It is not necessary that all conspirators must know each and every detail. It is not rtecessary,to prove acfual words of communication and evidence as to transmissions of thoughts. sharing unlawful designs would be;ufficient. Manifestation of hgreement may be by w'ay of meeting and communication. lsee Naujot Sandhu (supra)]

73. In most. cases it is diffrcult to get direct evidence on agreement to conspiracy and it has to be inferred from ciicumstances giving rise to a conclusive irresistible inference of an agreement to do an illegal:, act or legal iact by illegal means. Surrounding circumstances, antecedents arid subsequent conduct amongst other'factors constitute, \01

74. belief that birds of the same feather flock together. Merely passive attitucle tolards an existing conspiracy or lcnowledge thereof is not suflicient.,on the question of overt acts and. rejecting invocation of theorv of agency in Naujot sanerhu(supra) it was observed:- "x-03. we do not think that the theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the acfual offences committed in execu'fion of the common design even if such offences werg r,rltimately committed by some of them,,without the participation of others. we are of the view that those who goyy,itted. the offences pursuant to the conspiracy by indulging in various overt acts will be indivicl.tutty liablL for those'offences in addition to being liable for criminal conspiracy; but, the non-participant conspirators cannot be fortnd guilty of the offence oi' offences committed by the -other conspirators. There is hardly any scope for the application of the principle of agency in order to nna tne conspirators guilty of a substantive otTence not commified by them. criminal offences and punishments therefcrr are governecl by the statr-rte. The offender wili be liable only if he comes within the plain terms of the penal statutei criminal liability for utr offence '.unnot be fastened by way of analogy or by extension of'a common law principle." It was also observed as under:t t'L08. Thus, a distinction was maintained befween the conspi4bcy and the offences committed pursuant to the co'spiracy. It is only in order to prove the existence of conspiracy and the parties to the Conspiracy, that a rule 'of evidence is enacted in section 10 based on the, principle of agency. We may recall that Section 10 of the Evidence Act provides that anything said, done or \\' relevant fact as against each of the conspirators, subject to the condition prescribed in the op"tring part of-the sectibn. Thus, the evidence which G in trr. nature of hearsay is made admissibie on the principre that there is mutual agency amongst the conspiratois. It is in the context of Section 10 that the relevant observations were made inthefirst caveeshqr case [1958 scR 161: AIR 1957: SC 747: 1957 Cri LI 13251 and.Nalini case l(1999) 5 SCC 253 1999 SCC (Cri) AOq utp.5i[7]. In the former case, Jagannadhadas, J., aft.er referiins,to the pirssage in Roscoe's criminar Evidence (16th Ed.) that. i'an overt act committed by any one of the conspirators is sufficient, on the g.rr.rul principles of agency, to make it thq act of all',, observed that. "the principle underlying the. reieption of evidence under section 10 of the Evidence Act of the statements, acts and writings of one co_ conspirator as against the other is on the theory of agency" (SCR p.205). It was,'not held in those cases that the same principle of agenc)r should be stretched further to make uil th. conspirators liable for the offensive acts done pursuant to the conspiracy, irrespective of their role and participation in the ultimate offensive acts. lVhether or not the conspirators will be tiable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be.givern for the conspiracy and the other offences committecl pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be ipelt out b-y applying the principle of agency if the stafute does not say so.'.For instance, in the case of Section 34 IpC, the constmctive liability for the crime is specifically fastened on each of those who participate in tlie crime in furtherance of the common intention. But section 120-B, does not convey that idea.,,

75. In the li'ght of the aforesaid discussion, we do not think that thpre \\\ 77.[2] and First, l..':. ',] ' conspracy leading to seizure and recovery of the consignment from A_ i 1 to A-3. However, they will be liable for having committed offences leading to recovery of the detonators and the reniote control devices tJ Lt/. Frovisions of rFC and ForA. and their apprication. '76. The next aspecf which requires consideration relates to inierpretation of sub-sections 3 and 5 to section and Section 20 of POTA and Sections l2l,l2lA,: Sections 4 and 5 of the Explosive Substances Act. up the provisions of IPC, which read as under:ulZt. Waging, or hftempting to wage war, or abetting waging of war, against the Government of India._ Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging ollsuch war, shall be punished with death, or imprisonment {or life arid shall also be liable to fine. Illustration. A joins an insurrection against the Government, of India. A has committed the offence defined in this ' section. L2IA., Conspiracy to commit offences punishable bv section l2l.-- Whoever within or without India conspires to commit any of the offences punishable by section L2I, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Governinent or any State Government, shall be punished with imprisonment for life, or with imprisonment of either descripiion which may extend to ten years, and shall also be liable to fine. " Explana.tion. - To constitute a conspiracy under t}Js section, and answer, 3; Section 4 L23IPC and we will take \v L22..Collecting arms, etc., with intention of waging war against the Government of trndia. -- Whoever collects nen,' arms or ammunition or otherwise prepares to wage war rvith the intention of either waging or being prepared to wage war against the Govemment of India, shatl be prurished with imprisonment for life or imprisonment'of either description for a term not exceeding ten years, and shall also be liable to fine. L23. Concealing with intent to facilitate design to wage war. -- Whoever, by any act, or by any illegal,'omission, conceals the existence of a design to wage war against the Government of India, intendin[ by such.concealment to facilitate, or lcnowing it to be iikely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

77. Section r2l rPC provides for stringent punishment of death or irnprisonment for life and fine, if a person wages war against Government, of India or attempts or abets waging of such war. The expression "wages war against Government of India" requires: elucidation and examination separately, but it is signifrcant to note that attempt to wage war as well as actual waging of war both ar-e covered under section l2r rPC. Howevel, preparation to wage war is not covered under the said section. 78.. sectiorr l2rA is broader/wider than section 121 arld makes persons associated with the conspiragy to commit offenees under Section r27 liable. The explanation to the said section states that to: \\& should havo taken place. o'ffence under section r2r/-is made out whq:n the conspiracy is to overawe the central Government by means of criminal force or show of criminal force. under section 1214 lpc. the, offendep can be punished with imprisonment of tife or with impiisonmerlt of either description which may exterid to ten years with ne. 79- section 122 rpc makes a person riabre if he corlects rren, arms or ammunitions or otherwise prepares to wage war with the intention,t, of either waging war or being prepared to wage war against the Govemment of India. In such cases, the offender cart be punished with imprisonment for life or imprisonment of either description for a term not exceeding 10 years and fine.

0. Section' 123 IPC states that whoever by an act ci, illegal I omission, conceals the existence of a design,to wage war against the l. Govemment of India and intends by such concealment to facilitate or knou's that such concealment is likery to faciiitate waging war shall be punished with. a term of either description which.rnay extend to 10 years with fine.. t.

81. ' The'expression "waging waf'or "waging of war" h,as been elncidated in the case \\ "282- on the analysis of the various passages found in the cases and commentaries referred to above, what are the highlights we come across? The most important is the intention or purpose behind the defiance or rising against the. Government. As said by Foster, "The true 'crit"oion is quo animo did the parties assemble?" In other words the intention and purpose of the warlike operations directed against the governmental machinery is an important criterion. If the gbjTt -and purpose is to strike at thl sovereign authority of: the Ruler or the Government to achieve u p,rbti" and general ' pulpose in contradistinction to a private and a particular pll{pose,_ that is an important indicia of waging- war. of course;'the purpose must be intended to be u.hi.vrd by use of force and arms and by defiance of government trobps or '. armed lpersonnel deployed to maintain public tranquillity. Though the modus operandi of preparing for the offensive act. against the Government may be quite akin to the preparatiotr in a regular war, it is often said that the humber olforce, the;. manner in which they are arrayed, armed or equipped is ' immaterial. Even a limited number of personr *ho caffy 'powerfi.rl explosives and missiles rvithoutiegard to their own safety can cause more devastatin g damagethan a large group of persons armed with ordinary weapons or firearms. ih"", the other settled proposition is that there need. not be the pomp and pageantry usually associated with war such as the, offenders forming themselves in battle line and arraying in a. warlike,manner. Even a stealthy operation to overwhelm the, armed or other personnel deployed-by the Government and to attain a commanding position by which terms could be dictated to the Government might very weil be an act of waging war."

82. The supreme court disapproved with the view express.ed. in some authorit!,es and in earlier decisions thrit "neither the,number engaged, nor the force employed, nor the species of weapons with which they may be armed" is really material to prove the offence \\( irrelevant factors and they certainly help the Court in gauging whether the intention was to wage war or not. The Supreme Court held that fire power or d-evastating potentials of fire and explosives or the scale of violence that follows may at times become useful indicators as to the nature of the act. It furrher clarified that concept of'war in these rbsections'.inclucles rebellion or civil uprising ancl is not to be nnderstood jn the conventional sense as war between two nations or sovereign entities. The normative phenomenon of war does not fit into the ambit or,,breach of these sections. Pertinently, the'supreme Court highlighted that: "2g0.... The High Court observed: "If not acts of waging war, what they did would certainly be acts of abetting ihe waging of war." In this-conirection, we may clarify thf the expression "abetment" shall not be construed to be an. act of instigating the other conspirators (i.e. the deceased terorists). There is another shade of meaning 'to "abetment" given in Section L07 IPC. It is clause secondly of Section 107 which is athacted in the case of AfzaI. We quote the relevant portion of Section. I07 IPC, which reads as follows:. *707. A person abets the doing of a thing, who- **:1. SecondJy.-Engages with one or more.othel person or persons in any conspiracy for the doing of that thing, if an - act or. jllegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing;" As crirhinal acts took place pursuant to the conspiracy,. the appellant, as a parfy to the conspiracy, shall be deemed to have abetted the offence. In fact, he toolc an 'l t i \\6 wagi*g of war, having rega'd- to the extraordinary facts and circumstances of this case, justifies the rmposiiio.o or capital punishment and therefore the judgment of the Fligh courL in regard to the conviction.and sentence of Afzal under Section 121 IpC shall stand.,,. 83- Similarry, in the case of furohcr. Ajmar Amir ldasab v. state tl - of Mohar*srrtra e0r[2]) 9 scc 1 it was,recapiturated that:_ " s!].rnNaujot sandhu t(2005) 11.scc 600: 2005 scc (Cri) 17151, the issue of,'aging war,, against the Govemment of India has arso b..r,.Jrrridered i-n relation to terrorist acts and in that regard the court observed and, held as follows: (SCC pp.l6i_6g, paras 2jS_7g).t "275. war, terrorism and violent acts to overawO the ' estabrished Government have many things in common. It. is not too easy to distinguish them.... d - - ?'il:i::i:,T,::yoi:f:#:"lff:"i,lnlrebe,,ions,. levying of war are offences which run into each other and ' not capabre of being marked off by perfectry definite boundaries. Ail of them have in.o-''o' one feature, namery, that the normal hanquilrity of a civilised sociefy is, in each of the cases *.ttiotr.d, disturbed either bv achral force or at least by the show and tyreat of it., g History.of the Criminal Law of England, Vol. I at !. 242.[1]

277. To this list has to be added,terrorist acts, which are 'so conspicuous nowadays. Though every terrorist act does not amount to waging wa[4] certain terrorist acts can ' also constitute the offence of waging war and there is nr: dichotomy between the two. Terrorist acts can manifest 'themsel'es into acts of war. According to the leamed.: senior counsel for the state, terrorist acts prompted by an intention to strilce at the sovereign authorify of the state/Government, tantamount to waging war irrespective. of the number involved or the force ernployed '278. It is seen that the first lirnb of section 3(1) of \\1 '3. (1)(a) with intent to threaten the uni[,, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by usi^g bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals I or by, any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever....' and thb acts of waging war have overlapping features. ' However, the. degree of animus or intent and the magnih-rde of the acts done or attempted to be done wouid assume some relevance in order to consider rvhether the' terrorist acts give rise to a state of war. yet, the ' demarcating line is by no means clear, much less transpalent. It is often a difference in degree. The distinction gets thinner if a comparison is made cf terrorisr acts with the acts aimed at overawing the. Governinent by means of criminal force. Conspiracy to commit the latter offence is covered by Section I2l-A..-'

84. As far as A-1 to A-3 are concemed, recoveries of the explosives from them consisted 10 hand grenades, 10 grenades shell and, a i -renade launcher. The natr-rre of the explosives recovered is a relevant: and important circumstance. The said explosives cannot be used for 'smaller" offences. uttd ur. deadly weapons, mostly used by armies in field operations. These can cause massive and mass. destruction. It is obvious that the intent and purpose for transporting and bringing 10 hand grenades. with grenade launcher to Delhi was. with the,ulterior motive and purpose. The ammunitions recovered were meant to be used for terrorist activities of devastating nature to shake up and strike \4

85. Counsel for flre appellants A-1 to A-3 had afgued that transportation of the hand grenades etc. to Delhi does not amount to attempt of waging war and at least A-2 and A-3 had no intention or mens reatowage war against the Government of India 86, The c{istinction between attempt and preparation can be subtle -; Ynd thin, thdugh text books and judgrnents have tried to demarcate and,' ' I clearly elucidate the difference inthe two stages. The word 'attempt' is nowhere defined in IPC. One often quoted and elaborate definition is in Stephen's Digest of Criminal Law which defines "an attempt to constitute a crime is an act done with intent to commit that crime and forming pag of series of acts which would constitute its actual commission if it were not intemrpted. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances ^ I r. I of each parlicular case. An act done with intent to commit a.crime, the commission of which in the manner proposed was, in fact, impossible, is an affempt to commit that crime. The offence of attempting to commit a cfime may be committed in cases in Which the offender voluntarily clesists from the actual commission crf the crime itself." Jurist Livingston states that an 'attempt' is made punishabie, because every 'atfempt', although it fails of success, must create alarm, which,. I {r [^ t: if lre had iucceeded.(see Ratanlar Dhirajlar, Law of crimes,.25fr ed. 2002): l 87 - Thro'gh Ir. M^cGRE- ILR 15 AII173 came a paradigm shift in understandiSrg of 'Attempt' as contemprated under section 511 Ipc which was herd to cover not onry penuitimate act towards compretion -- f offbnce but those acts done in the course of thq attempt to commit the offence,::with the intent to commit it. It laid down that.,the acts whereby those preparation ^iy be brought to bear upon the,mind may be s.everal inrpoint of number, and yet the first act after preparation is completed, if criminar in itself, will be, beyond ari doub! equaily an attempt with the ninety and ninth act in the series.,, petitioner Maccrea argued that "beyond those acts there would necessarily have foliowed seve'al other acts, some of them to be done by himself or by Asad Ali, extending over a period of time which might have amounted to two year,s" and hence it cannot be a[1] 'attempt,. Reliance was placed on the.b,nglrsh test, reverberated in host of Indian cases, to the effect that i' i. at,, i' '-an-qmpt" amounts to 'taking of those steps which lead immediatelv to commission of the offence' but the court felt thpt,the question is ni one or *q,r. proximity in time or place' as there courd be very rt considerable interval of time. Differentiating befween preparation and the not \e/ "There was a stage in which he was undoubtedry only making preparations, and had not got beyond th; stagl of preparation. There were such acts as those when he first 'commenced making inquiries from the pubric Debt"office to find if the Note No.9764 was stiii ontstdnding; when he instituted inquiries at the B-lhrampur Hospital as to the death oi H'ssain Ari I(han,and the disposal of his bedding. Th"re w"i" u"r,,tl ll{^preparation stage. But a maJority of ttre 3ury have f'ound, and I agree with them, that. MacCrea committed a 10ng series of acts snbsequent to that which, showed a distinct intention to cheat; acts committed for the purpose and with the intent tobring all_his'preparatioas to bear upon the mind ortn" p.rro" to be d.eceived; that with those acts, beginning with the procuring of letters of administration setting ollt Asad Ali I(han as the lawful owner of Government promissory note No. 9764, the forwarding of those false ietters of administraiion and arun ?oii." ^ro, ptrblication in the Gazette, had begun an attempt to cheat; that in that atternpt he had committed *or.-thun " one aci of distinct criml and sufficiently near towards, ' completion to arouse apprehension and aiarm that the attemp!, if not intemrpted, would end in the commission of the offence. I do not hord, and have no hesitation in saying, that s.511 was never meant to cover^qnly the penultirnate act towards completion oi an offence and not acts preceden! if those acts are done with the intent to commit it and done towards its that definition under S. 511 IpC of attempt is of t'. wrder nature and implies that such an attempt may be made up of series of acts. "rt may have been that prelim inary inquiries and steps of other kinds must have intervened befween the act of deception and its entire sLlccess" bnt that still amounts to attempt... ' commission.,, BB. Blair J.'added \4^:

89. Abltayan.a,,"l Mi'l"n '' State of Bihar AIR 1961 SC 1698 resoundedtlrisapproaclrancllaicldowntlrat.tlremometrtone commences to do an act with the necessary intention. he commencas his attempt'. Ii elr-icidated' flrat: "24.We may sunrmarise our views about the "J"r*.tion of S"tiio" 511 IPC' thr'rs: A person '1 commits the offence of '.'atternpt to c.omTit" a parlicul4r off.,t"" '"ften (;) he intencls to coinmit that I ffii;i;; ";rr";;.,;";' (i;) he' having ma$e preparation, u"a *iU' tttt- intention to commit the offence, does an act towalcls its comnrission; such an: act need,tot f'" Ut" penultimate act towards the ': commissio,, of tltot office but must be a[4] act during ih. "on t. of committing'that offence' z;.rnr:he present case, th[3] {Pe}lant in1'en1*.t" " deceive the University and obtain the necessary permissio,r *i t.-o,t*ittion 11d and' ltt:il[1];"""t an application for permission io sit at the YlTttty examinatio,', r"i'J'"o^i"ri"*"4. it up' tt q::Tg;[l ' necessaly p"rmission' by remitling the necessaly rees: and sendins iil;;i"s or his fhotograph':l trt". receipt of *fti"ft iit" Universify clicl issue the admissioir "u'a'ih"t" is therefore hardly any scope for saying flJ;;;in" opptttant had actr-rally done " clid not amount to his attempting to ' comrnit- the ' offence *a i'ua- noi-go"t t'"via tl::t?s: of: preparation 1il" pt"potltiol *us "ouiplete when he ' had 'prepur"i^ trtJ^ Jpptcation for the plllpose of ' submiosion;t;;t 'fuiversitv' Th[1] *o4t11 he i; despatched lt,"h"^;ntt::.d.m:,:talm of atlempting to '' commit the o'ffence of "cheating"' FJe qiq:t::::d in deceiving tht U;*t'sity onO in"a"cing it t[9] iss:e the' admission carcl' He just failed to get it a1{ sit fol the examinati"*;;;;# sonrething belona ftt.*ot,*#j;;;'i";;;;-' as the un';v"rsitv was informed about ftis Uti"g ntitt*' u gracluate nor a teacher'" \qy

90. However;, though Mallciat Singh. v. state of Puniab (1969) 1 SC cI57 the supreme court illustrated ancl expressed that:,,In ordef that apelson rnay be convictecl of an atternpt.' to commit a crime, he must be shown fir'st to have had i an intention to commit the offence, ancl secondly to 'r have done an acLwhich constiturtes the actus reus of a crimirralattempts.Tlresufficiencyoftlreactusteusisa. question of law wirich had led to clifficulty because of tlrenecessityofdistinguishingbetwe.enactswhichare. ot"tAy preparatory to the commission of a critne' and those *t i"tt ale sufficiency proximate to it to amount ' io an attempt to commit it'- If a marl buys a box of matches,. hJ cannot be convicted of attempted afsoll' 'r howeverclearlyitmaybeprovedtlratheirrlendedto set file to a haystack at the tirne of the purchase' Nor can he be convictecl of this offence if he approaches the stack with the matches in his pocket' but' if he bendsdownnearthestackandliglrtamatclrwlrichhe extinguishes on perceiving that lie. is being watched' he,ouy b" guilty of an attempt to burn it'" 9I. It went on to might'have been wamed that an,C they coultl have changed caught and the'border: hold that it is quite possibie that appellantp theleiri canying the padcly was impermissible their mincls between where ttiey wer'e;n itt progress' the acts alreadY done @n tire present case it is quite p"ilbl. tr*t tl* appellants mav have 9""" Y?I:11111 ih"y nua no license to cany the paddy -and tleV may " hav" changed their rnind at any place betrryeen " Samallcha danier and the Dellii-Punjab boq'clary and not have proceeded' fur-ther in their journey' section s of ihe Essential commodities Act states'that "any pe'tson who attenpts to contravene' or abets a: 3 shall ' an acts alreacl r if rhe \'12 I'

92. be deemed to have contravened that order". But there is no provision in the Act which makes apreparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under Sectior,i 7 of the Essential Commodities Act. " (emphusis supplied) In State of lVlaltarosldra v. Moltd.Yukub (1980) 3 SCC 57, silver was being transported in a jeep and a tnrck towards the creek for alleged illegal exporting and at a point the vehicles halted and bundles were unloaded. A pistol was found and false names were given by the accrrsed. Sarlcaria J. distinguished Malkiat Singh case (Supra) and held that there the,,offender had ample opporfunity to change his mind which I was not pres:$ in this case and the test was case specific. It reiterated, the application of English test to be too narrow and.held that attempt is a mixed ques'iion of law and facts, depending on the circumstances of he case. Sarkaria J. held as under: 6' L[3]. Well then, what is an "attempt"? I(enny in his ourLINEs oF cRIMINAL LAW defined."attompt" to commit a crime as the "last proximate act which a person does towards Ihe commission of an offence, the torrrtr*rrration of the offence being hindered $y circumstances beyond his control". This definition is too narow. What condtitutes an i."attempt" is a mixed question of law and. 'fact, depending largely on the circumstances of the particular case. "Atlempt" defies a precise and exact definition. Broadly all crimes which consist of the \2* be divided into three stages. The frrst stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to r commit the offence. Such overt act or step in order to be "criminal" need not be the, penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation I of the offence. As pointed out inAbhayanand Mishrav. State of BiharlAIR 1961 SC i69B: (1962) 2 SCR 247: (1961)2 Cri LJ B22l there is a distinction betw'een "pteparrtion". and "affempt". Atlempt begins where preparation ends. In sum, a person commits the offence of "attempt to commit a' ' i particular offence" when (i) heintends to;' commit that particular offence and (iI) he, ' having made prepdrations and with the intention to commit the offence, does an act towards its commission; such an act need not ' be the penultimate act towards the commission of that offence but must be an act drtring the course of commttttng that offince. " ' Chinnappa Reddy J. clarified the position of law as under: "3tr.In Malkiat Singhv. State of Punjab K1969) 1 SCC 157, 160: (1969) 2 SCR 663, 667: 7970 Cri LJ 7501 a truck which was canying paddy, was stopped at Samalkha 32 miles'from Delhi and about 15 miles from the Delhi-Punjab boundary. The ' question was whether the accused were attempting to export paddy from Punjab to Delhi. It was held that on the facts of the case> E&RSftET \"( committed. Ramaswami, J-, observed: (SCC p' 160, paraT)' "The test for detennining whether the act of the appellants constiluted an attempt or pr.putuiion is whether the overt acts already dorr. ut. such that if the offender chan$es his mind and does not proceed further ' in its progress,, the acts already done would. b.e coriptetety harmless In the present case it is quite irosiible that the appellants may have br"r, *utned that they had no licence to carry the paddy and they may have changed their mind at'arry place between Samalkha parrier and the Delhi-Punjab boundary and not have proceeded further in their journey'" We think that the test propounded by the first i sentence should be understood with reference, to the facts of the case' The offence alleged to be contemplated was so far removed frorn completion- in that case that the offender had yet arnple time and opportunity to change his mind and proceed no further, his earlier acts being comiletely harmless' That was rlvhat the '.ouJ meant, and the reference to the, appellants' in the sentence where the test is niinounded makes it clear that the test is i,.obounded with reference to the particular iu"tt of the case and not as a general rule' Otherwise, in every case where an pccused is intemlpted at the last minute from completing " the offence, he may always say that when-he was intemrpted he was about to change his mind." " This is the present position of law' However' in offences against the narional security, both attempt and preparation are chargeable (bttt under different ' sections), though "preparation" tlnder othei ptovisions/offences as expounded in IPC may not be an offence' Crl. A. Ncs. 166120ll,299120l I & 308/201I;. ':

93. \"1'

94. In thes'e circumstances and by applying the above stated ratio to A[1] to d[3], it has to be held that such apreparction had obliterated in the background and attempt had started. The reason is that the attempts I itself can have different stages. Preparation precedes attempt and manifests itself into. the second stage i.e. the attempt stage when the st step itself has already been taken. Atte.mpt can bonsist of multiple stages and does not refer to last or the finai stage. An attempt will not I become preparation merely because the offender stiil has time to think over ancl ma1' rot actually execute the criminal act for any reason and has opportunity of time to retrace the final execution. 'The actual atternpt in commission of the offence is not necessafy, but the frst step in the directiqn to actually commit the offence should be made. g[5].t In the present case, the first step was taken as grenades and grenade launcher etc. were transported by A[2] and A'3 lbr being. I, delivered to A[1]. The transportation from I(ashmir to Delhi was on the 'instructions from Iftrursheed and A[1] was to collect them in Deihi. A.[1] l got in touch with 42 and 43 and came.to coilect the consignment from them.,A.[1] wis to then cieliver the consignment to third persons, i.e., Zahaor and Habib, who were supposed to take the delivery the same night at Milleunium Parlc. The nature and type of the explosives,.the,l --- --11.- -- I I \,[4] Delhi and delivered to A.1, and the subsequent encounter,justiff the. finding that the first step and beyond had occurred. It was nat just mere preparation. With the delivery, A[2] and A.[3] had completed their part. t1* had hpnded over or were about Io hand over the consignment. Thus, from that point they could not have retraced or controlled the use fr rather misuse of the explosives. Use of hand grenades, grenade larlncher etc. is well established and a matter of common knowledge, can result inprodigious loss of human lives and have a knock out or cmshing effect on the morale and sentiments of the general public. They are explosives or weapons which can cause annihilation, massacre arld massivellarge scale destruction of human lives and:properby. In these circumstances,.A[1], A[2] and A[3] are guilty under Section 121,IPC and the said Section is attracted; Even otherwise a. j. person who abets waging of war is covered and can be punished under. Seition 121 IPC. A[1] to,A.[3] will be equally guihy and liable under Section l2IA IPC because the said transportation, delivery of hand grenades, grenade launcher etc. was apart of conspiru?. By the same reasoning and logic,,4'4 and A.[5] cannot be prutished under Section 121 IPC. 23 detonators and 3 remote control devices were seized from t,i their residence but no live ammunition, explosive or fire alrns were

6) \M I been attached to active substance; no active substance was found and, therefore, were not ready for use. By themselves, the devices could not be used for waging war or to cause injuries or destroy prope.rfy. It has not been established or proved that the detonators or the 3 remote control devices were to be used for carrying out any particular strike or |ere tikely to be moved and utilized by third person'in possession or l who had acc;ess to active substance. In law and qn facts, 44 and,{5 could have qtopped and not gone any.firrther. Therefore, in our view, the first step lhad not occurred. Prosecution has not been able to prove thal A[4] and.A.[5] were in conspiracy with A[1] to,4.3. A'4 and A[5] would not, thereforb, be gtrilfy under Section 121A,IPC,.though it has wider ampute, and includes within its ambit, conspiracy to commit an offence under Sectio.p I2I or conspiracy to overawe the Governmeri of India by.rneans of criminal force or show of criminal force, inasmuch as the conspiracy as alleged should be established. As noticed, to.constihrte conspiracy under the said Section, it is not necessary that any illegal act or illegal action should have taken place in pursuance thereof but conspiracy to commit the offence, under Section.121 IPC as per the chaige sheet, should be proved beyond doubt. Once the charge of coqspiracy against A.[4] and A.[5] fails, they cannot be convicted under: \r^ ii I

96. Secticns 122 and 123 would be equally attracted and A-1 to A-5 have committed offences under the said Sections. Their application and violation by:,Al to A.[3] is obvious for the reasons and considerations mentioned ubo'n..,4.[4] and A[5] are guitty of having committed offence: under the said sections in view of the recoveries of remote control pvices, eleclronic cletonators etc.. The section I22IPC is applicable to preparation to wage war or preparation with intention to wage war. The said apparatus, the quantity thereof and the devastation and destruction ihut could have been caused reflect the motive/object behind the collection. Visit of,4.[4] and A.[5] to Pal<istan, overstay and. their clandestine return to India are strong and good indicators and prgof of the intention behind the collection. Section I23 is also attracted to 44 and,4.[5] as there was concealment.

97. Sub-sections 3 and 5 to Section 3 of POTA read as under:-,;l "(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or lcnowingly facilitates the commission of a terrorist act of any act preparatory to ' a terrorist act, shall be punishable with imprisonment for a term which shall not be less thanfive years but which may extend to imprisonment for life and shall also be liable to. fine. (5) Any person who is a member of a terrorist gang or a tenorist organisation, which is involved in terrorist acts, shall be prurishable with imprisonment for a term which'. may extencl to imprisonment for life or with fine which may extend to rupees ten lakh or with both. \'9', Explanation.-For the purposes of this sub-section, "terrorist organisation" means an.organisation which is concerned with or involved in terrorism.,,

98. Sectibn 3 (3) includes within its ambit conspiracy or attempt to commit, abet, advise or incite or knowingly facilitation of commission,: of a terrorist act or any act preparatory to a terrorist act. Advosalin*.[1] terrorist act.is punishable urder this Section. In view of the aforesaid discussion and factual findings, it is hetd that A-1 to A-5 have commitiecl offence under Section 3(3) of pOTA. 9g'. section 3(5) makes a person offender when he is a member of the terrorist'squad or terroris t organizatron involved in such terrorist acts. The' ierrorist organization means an organization, which is: concerned with or involved in terrorist activities. As far as A-f is. concerned, there is ample material and evidence to show his involvement as a member of terrorist organrzati.on.. However, as far as A-2 and A-3 are concerned, their confessional statements show that it was one of instance in which they hacl participated though they had been working with the truck owner I(hurshid, who as per the i prosecution, was a member of the terrorist organization. There may be therefore soniL merit that there may not sufficient evidence thatA[2] and.,{3 were members of a terrorist organization but poTA \4\ gang. Their conduct, nature and quantum of recoveries made and their interaction with A[1] without doubt malces thern'a member of a'terrorisr gang involved in terrorist acts. Thus in the case of A[2] and,{3 we need not give a firm and conclusive opinion of they being members of a terrorist organization. In respect of A-4 and A-5 no specific terrorist i are attributed to them. But there is evidence that they went to t* Pakistan, overstayed and then without recording their retum re-entered India. Recoveries made from their house also speak. In their confbssional statements that they have siated that thev were members of "Jaish-e-Mohammad" and had participated and were trained. The apparatus recovered was to be used for terrorist acts. Thus there is snfficient eviclence that A[4] and,4.[5] were members of a terrorist organization or group. We are, therefore, not inclined to give benefit --t doubt to A-4 and A-5. Their conviction under Section 3(5) o.i: POTA is upheld. For the same reasoning, the conviction of the appellants under section 20 of POTA is maintained.

100. Section 4 of POTA reads as under:- "4. Possession of ceftain unauthorized arrns, etc.-. Where any person is in unauthorised possession of arlya. arms or ammunition specified in columns (2) and \91/ b. bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destmction or biological or chemical substances of Warfare in any area, whether notified or not, he shall d'e guilty of terrorist act notwithstanding anything contained in any other law for the time being in. force, and be punishable with imprisonment for a term which may extend to imprisonment for life or r,yith fine which may extend to rupees ten lalft or v,,ith both. Explanation.-In.this section, "notified area" means sllch area as the State 'Government ffidY, by notification in the Offrcial Gazette, speci$r."

101. Tho said provision has been clearly violated by A[1] to 43 and they have been rightly convicted under Section 4(b). However, conviction of A[4] and A[5] under the said Section cannot be maintained ag they wi:re not found to be in possession of any afin or ammunition, bombs, dynamite or hazardous explosive substances or lethal weapons. They were found to be iri possession of remote control devices and electronic detonators which bV themselves without explosive sttbstance are not covered under Section a@) of POTA. Explosives Substances Act 10?t. Sectioh 7 of the Explosive Substances Act reads as under:il I ' "7. Restriction on trial of offences. - No Court shall proceed to ' the trial of any person for an offence against this Act except with \*

103. A reading of the said Section makes two aspects lucid. The said Section uras,th. word "consent" and not "sanction" but this does not appear to be significant as Section 196(2) Cr.P.C. also uses the same expression. The purport behind Section 7 and the expression 'consent' ': is apparentlyl identical and similar as mandated by the expression mction'. Sbcondly, it stipulates that no Court shall proceed with the trial except when there is consent of the District Magistrate for offe:nces under the Explosive Substances Act, 1908. It does not bar or prolribit the Court from taking cognizance, a stage prior in point of time and befcjre the Court proceeds. with trial. (see Romjani Vs. State of llajastlran, 1993 CrL L.R.I79). This is a significant and important depznture frorn provisions relating to sanction in several eraactments including Cr.!.C. Earlier, consent of the Central Government was required but jry way of amendment through Act 54 of 2001 brought into force with effect from l't February, 2002, District Magistrate has been assigned the power to give consent. The said amendment probably was,in view of the decision of the Supreme CourL in Stute of M.I'. Vs. Bhltpindra Singlt, (2000) I SCC 555.

104. In respect of prosecution under Sections 4 and 5 of the.'1 Explosive Substances Act, we have two consents under Section 7. The \9' 'i t; i'i exe'cuted by'the Deputy commissioner of police, Headquarters, Delhi. and refers to the power conferred under the Explosive substances Act, 19QB vide n.otification No.65 dated 12d' December; 2001 read with HIvIA Gazette Notification No.131E dated 31't January,2002. The saicl consent is by order and in the name of commisiioner of police. Qt. Question is whether this consent Exhibit pw-1 6/A isa valid consent under Section 7 of the p.xplosive Substances Act. On.behalf of the 'appellants it is submitted that commissioner of police/Deputy: commissioner of Police is not District Magistrate and, therefore, was incompetent to issue the said consent.

106. The teim 'District Magishate' has not been defured in the Explosive Sutjstances Act or the General Clauses Act. Section 20 of lr.P.c. states that in every district and in every metropolitan area, the state Governr,nent may appoint as many persons as it thinks fit to be Executive Ma$istrates and shall appoint one of them to be the District Magistrate. Sub-section Q) stipulates that state Govemment may appoint any iExecutive Magistrate to be an Additional District Magistrate and such Magistrate shall have such of the powers of a District Magistiate under the Code or under any other law for the time being'in force as may be directed by the State Government. \rr{

107. sub-section (5) to Section 20 states that notwithstanding. anything contained.in other sub-sections, the State..Government shall not be preclucled from conferring under any law for the time being in force on the commissioner of Police. any or all powers of an the Executive Magistrate in relation to a metropolitan area..: Wit]t thc enactment of Delhi Police Act, Ig78 Commissioner of Police became Head of the police force in Delhi with the stipulation that superintendence of the Delhi Police shall vest in and the shall be exercised by the Administrator i.e. the Administrator of Delhi 'appointed under Article 239 of the Constitution. The Administrator appoints the Commissioner of Police who is authorized to exercise and perform all poryers and duties specified in the Delhi Police Act. )9. We may now refer to the provisions of Section 8 of the Delhi Police Act,7978which reads as under: "8.' Depufy, Additional Deputy and Assistant Commissioners of Police. -(1) The Adrninistrator may appoint one or more Deputy Commissioners of Police or Additional Deputy Commissioners of Police or Assistant Commissioners of Police for the plrrposes of this Act. (2) Without prejudice to the other provisions of this Act and subject to any general or special orders made by the Administrator in this behalf, every Deputy Commissioner of Police or Additional Deputy Cornmissioner of Police or Assistant Commissioner \tL/ 1 10. dudes of the Comrnissioner of Police and withiri such local limits as may be specified in such orders." Section 8 of the Delhi Police Act states that th'e Administrator may appoint one or more D..puty Commissioner of Police, Additional Deputy Commissioner of Police or Assistant Commissioner of Police for the purpose of this Act. 'Sub-section (2) to Section 8 stipulates that 'l*rout prejudice to the other provisions and subject to general or special orders by the Administrator, every Deputy'Commissioner of Polic'e etc., shall under the order of the Commissioner of Police, exercise such of the powers and perform said duties of Commissioner of Police and,within such local limits as may be specified in such.;' orders. This power, however, does not include power to make regulations. i[1].: lt would be now appropriate to reprodu-ce Section 146 and Schedule 1 of the Delhi Police Act, which read as under:;: ' "146. Fowers of Commissioner of Folice under. other Acts.- (1) The Commissioner of Police shall exercise all powers and discharge all ' ftlnctions which may be exercised or discharged by: d District Magistrate under the Acts mentioned in Schedule I including the rules made thereunder. (2) The Commissioner of Police may authorise any Additional Com- missioner of Police, Deputy. Commissioner of Police or Additional Deputy ' Commissioner of Police to exercise any of the powers or discharge any of the functions of the ' \11 (3) The powers and functions of a District 'Magistrate under the Sarais Act, lg67 e[2] of lg67 ), ishall be exercised and discharged by th; Adrninistrator or such officer as the Administrator may, by notification in the Official Gazette,.authorise in this behalf. i. i. The Press and Registration of Books Act, 1g67. 2..The Indian Explosives Act, lBg[4].

3. The Indian Lunacy Act,I9l[2].

4. The Poisons Act,-1919. J.- Th." Police (Incitement to Disaffecrion):.4st, 1922. Oi fne Cinematograph Act,1952. 7i The Suppression of Immoral Traffic in Women and Girls Act 1956.

8. The Arms Act, 1959. ?f ]tL" Prevention of Cruelfy to Animals Act, 1960."

12. Schedule I of the Derhi police Act, therefore, incl'des the r t. rlxplostves AcI.

113. The term 'District Magishate' has been defined in section of the Explosir,.e Act which enumerates 4(c) X)CKXXXX

SCHEDULE I [See section 146 (1)] Part I CENTRAL ACTS '' "(b)"District Magistrate,,, in relation to any area fo* wliich a Commissioner of police has been:. appointed, mears the Commissioner of police thereof and includes - (a) and such Deputy Commissioner of police, exercising jurisdiction over the whole or any part \e[4] I i: i Government in this behalf in relation to such area or part; and (b) an Additional District Nlagistrate lI[4]. Thus, for the pulpose of Explosives Act, the term "District Magistrate" includes Commissioner of Folice so appointed for any a1ea I and also the Deputy Commissioner of Police exercising jurisdiction \ -i ' r whole or any part of the area. The Explosives Act and Explosive Substances Act are cognate or pari materia statutes. The Explosive Act was enacted in the year 1884 to provide a comprehensive law 1,. " ^, r 1 - - r -r I regulatng manufactLrre, keeping, sale, transport, import and export of explosives. it consists of 18 sections and has various Schedules. Explosive Sub,stances Act was enacted in 1908 and consists of merely 7 seQtions. The statement of objects and reasons for enactment of the Explosive Substances Act recolds that inadequacy in existing law, i.e. - the Explosives Act, had been noticed while dealing with crimes committed by means of explosive substances. The relevant portion of objects and reasons for enacting Explosive Substances Act reads as ! under'::,I,li.;. "TNTRODUCT'ION, Crimes by means of explosive substances were on the increase and'to combat such crimes the provisions of the Indian Exnlosives Act. 1884. which was framed to pievent accidents rather itran to prevent crime, were ' i, found to be inadequhte. The Indian Arms Act '1878, \9\ t- - Code does not provide any' penalty for making or possessing explosive substances with unlawful intent and it does not in other cases always pfovide such severe gienalties as were requisite to meet the increasing number of crimes. The Governor-General-in-CoLrncil considered it necessary to snpplement the then existing law by an Act on the lines of

115. The English Explosive Substances Act, 1883, which was enacted for the express purposes of dealing with anarchist crimes. Accordingly the Explosive Substances Bill was introduced in the Legislahrre..

STATDMENT OF OEJECTS AND F'JOASONS........The Governor-Genera-in-Counci I therefore considers it necessary to snpplement the existing law by an Act on the lines of the English Explosive Substances Act, 1883, which was enacted for the express purpose of dealing with anarchist crimes. The Bill which has been drafted to give effect to this decision provides for the punishment of any person who causes an explosion likely to endanger life or properfy, or who attempts to cause such an explosion, or makes or has in his possession any e4plosive substance with intent to endangerlife or prbperty. It further makes the manufachrre or possession of explbsive substances for any other than a lawftil object a 'substantive offence and throws'on the person who mhkes or is in possession of any explosive substance the. onus of proving that the making.or possession was lawful. It also provides adequately for the punishment both of principals and accessories." heading of Explosive Substances Act, 1908, states that "it is an Act.furthbr to amend the law relating to explosive substances". It is clear to us that Explosive Act and Explosive Substances Act are pari; materia enactments. They are statLltes dealing with the same subject matter ancl form part of the code relating to explosive substances. I

116. The principle of pari materia is based on the idea that there is;: continuity of '.legislative approach in such acts and common \q" -.1___-_ __-_ this was intended. In Tiynmins v. Rowlison'(1764) 1 Wm 81 533, Lord Mansfield observed that "statues in pari materia are to be all taken as one s-'/stem to suppress the mischief.....The.:fwo laws are only parts of tfe same provision". In Bennion on statutory Interpretation,, Fifth Edition,; after the above quote ffi page 709 under the minor I '1ing "defiriitions" has opined that "Where a. term is used without definition in one Act, but is defined in another Act which is in pari materia with the first Act, the definition may be keated as applicable to the use of the term in the first Act. This may be done even where the ciefinition is contained in a later Act." An example is given. If Acts are pari materia, it is assumed that uniformity of language and meaning i;: is intended, aitracting the same considerations as arise from the linguistic canon of construction that an Act is to be construed as a v/rlole. In the.same text, it has been opined: "The sole question is whether; in borrowing the word, Parliament also intended to borrow its previous processing. This can be a very difficult malter to determine. One test is whether the two Acts are in pari materia. Acts in pari materia. The following are in pari mat'eria. (a)'Acts which have been given a collective title. This is a recognition by Parliament that the Acts have a single subject matter.. (b)' Acts which are required to be construed as one. Again there is parliamentary recognition of a single \\\ (") Acts having short titles that the iclentical (apart from the calendar year).

(d) Other Acts wh;ch deal with the same subject; matter on the same lines. Here it must be remembered that the Latin word part or paris means equal, and not merely similar. Such Acts are sometimes described as forming a code. This does not mean that the Acts are codi$ing Acts however. e If the Acts are in pari materia it is assumed that, uniformity of language and meaning was intended, ' attracting the same considerations as arise from the linguistic canon of construction that an Act is to be construed as a whole. This principle governing Acts. in pari materia was thus expr"ssed by nvelve luages: snch Acts 'are to be taken together as forming Lne. system, and as.interpreting and enforcing each other. ' i'In- other words they are to be construed as one, whether or not the relevant enactment expressly requires this. This has been applied even to repealed Acts within a group." rl[7]. The above principre is not alien to Indian context ancl has been refe,rred to jn Principles of stantory Interpretation by G.p. singh, I3th Edition at page 301 onwards. several judgments and decisions relating on the said principle have been referred to and it has been observed that this rule of construction has merit of avoiding apparent.contradiction between a series. of statutes dealing with same subject. It allows use of an earlier statute to throw light on: meaning or phrase used. in the later statute in. the same context. In stote of Macthya Pradesh vs. M.v. Norasimhan, (7g75) 2 scc 377, it has been observed any the the \*n/ ',' "17.... -.. It seems to us that even if Section ',,[2] of the Act had not applied the provisions of the Penal Code and had not defined public servant, then ' the provisions of the Penal Code would have come i' into-operation by implied reference because the Act. was a supplemental Act to the Penal Code. It was ' only by way of abundant caution that Section 2 of the Act incorporated the definition. of "public; r servant" as mentioned in Section 2l of the Penal. Code and in that sense alone the Act can be treated as being pari materia with the Penal Code. For these 'i reasons, therefore, we are clearly of the opinion that.the judgrnent of the High Court holding that the i respondent was not a public servant is legally I erroneous and cannot be allowed to stand."

118. In view of the aforesaid legal position, lve have to examine:' whether the. expression "District Magistrate" used in Section 7 of the Explosive Sr-rbstances Act should be given the same meaning as defined in Section 4 (c) of the Explosive Act. There appears to be merit in the,said contention as often provisions of both Explosives Act ancl Explosive Substances Act would be violated. The tnro Acts, as l. noticed above, are pari materia dealing with the single or common subject matl.er and are parl of the same code. The question realIy is of the intention of the legislature and when two interpretations are possible, w[6] should accept the interpretation which promotes the.: legislative jntent. Purpose and objective behind the legislative provision bbcomes relevant and important. Sanction or consent is required to ensure that criminal prosecutions under the provisions of \q[9] suspicion without there being evidence. The facts should be first examined by higher or superior officers who should be satisfied that prosecution should be filed. Principle of casus omisstts should not be supplied by the courl except.in case of clear necessity and when the reason for it is found in the four corners of the statute itself but at the Qu-" time;a casus omissus should not be repdily ' inferred (see: i.u Padmasundara Roo v. State of Tamil Nadu Q002) 3 SCC 533). I19. We clariSr that the aforesaid observations do not imply and mean that the expression "District Magistrate" when used in any L enactment,'applicable to Delhi, would include and mean the Commissioner of Police or Deputy Commissiouer of Police. The inrerpretatiOn given by us is specific to the Explosive Substances Act as it is pari inateria or cognate Act and part of the same Code, viz.,the Explosives,A.ct. The contention/problem raised could have been easily i avbided in sase care and caution had been taken by the draftsmen at the I, time of amendment oithe Explosive Substances Act in2002. L20. It appears and it is so stated in the impugned judgment dated 3'd January, 20lI thatthis Consent dated 25ft November, 2003 was never challenged or questioned on the ground that it was. invalid or improper and did not meet the mandate of Section 7 of the Explosive Substances.i J\Y\ objection was talcen that the consent (nx.fW-t6/A) was not by the District Magistrate, but at the stage of final arguments, the authorify of I the Deputy Commissioner of Police to issue Consent under Section 7 of the Explosive Substance Act was questioned. At that stage, the i prosecution was permitted and allowed to place on record fresh order 3f consent dated 25tr' June, 2009,Ex.PW47/A executecl'by J.K. Dadoo (PW-41), qho was then working as District Magiptrate cum Secretary t' (Revenue)-cum-Deputy Commissioner of Delhi. ' i' I2l. The prosecution has submitted that the challenge to the first j l. consent an[ the second consent should not be accepted in view of Section 465 Cr. P.C. It is stated that if the first ccinsent was invalid, ii was an irregularify which has been cured by the second consent. l, L22. The, appellants claim that the second consent Ex.PW-47/A dated 25ft lune. 2009 cannot resurrect and validate the trial i;e. the evidence, vshich was recorded earlier. The Trial Court rejected the. lr said contention holdingthrt the technical lacuna had been talcen care., n It. of. ' ',;, I23. Sectibn 465 Cr.P.C. reads as under: ' "465. Finding or sentence when reversible by reason or error, omission or irregularity. \'\/ jurisdiction shall be reversed or altered by a'court of appeal, confirrnation or revision on accollnt of any error, omission or irregLrlarity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that colrrt, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error,.omission or irregularity in any proceeding under this Code, or.any enor, or iregularity in any sanction for the prosecution has occasioned a failure ofjr,rstice, the court shall have regard to the fact whether the objection could and should have been raised at an eariier stage in the proceedings. I24. In Cen'tral Burgnu of Investigation Vs. V.K. Selrgal and Another, (1998) B SCC 501 conviction was set aside by the High: Court for want of sanction by appropriate/competent authority. The Supreme eoprt set aside the said judgment without deciding the,: question whether sanction was issued by the competent authority rqlying upon Section 465, observing as under: ' "10. A court of appeal or revision is debarred from reversing a finding (or even an order'of conviction and sentence) on account of any error or irregularity in the ' sanction for the prosecution, unless failure ofjustice had been occasioned on account of such error or irregularity. I For determining whether want of valid sanction had in fact occasioned faih"rre of justice the aforesaid.sub-section (2) enjoins on the court a duty to consider whether the accused I,' had raised any objection on that score at the trial stage. Even ifhe had raised any such objection at the early stage it riis hardly suffrcient to conclude that there was failure of, justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot. possibly sustain such a plea made for the first time in the. appellate court. In KalpnathRai v.State (through ra $( "29. Sub-section (2) of Section 465 of the Code is not a carte blanche for rendering all trials vitiated on the grcund of the inegularity of sanction if objection thereto was raised at the first instance itself. The sub-section only says that 'the court shall have regard to the fact' that objection has been raised at the earlier stage in the pioceedings. It is only one of the considerations to be weighed but it does not mean that if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial." Ll. In a case where the accused failed to raise the question of valid sanction the trial would'normally proceed to its logical end by rnaking a judicial scrlttiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public Servants from ' frivolous or mala fide or vindictive prosecution on the. allegation that. they have committed offence in the discharge of their offrcial duties. But once the judicial filtering process is over on completion cif the trial the ' purpose of providing for the initial sanction would bog,, down to a surplllsage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465. of the Code of Criminal Procedure." ' Learned counsel for the appellants have submitted that the Supreme Court had relied upon Section 19(3Xa) of the Prevention of Comrption Act, 1988, which is wider and broader and includes the question of competence of authority, and not meie irregularity. The Supreme Court did rely upon the said provision inciuding the Explanation, but this was a second reason or ground as is apparent from the use of the words "now another trammel on the appellate powers" Llsed in parugraph 12 ofthe said judgqrent. \-\'\ I25. Recently in R.atriram Vs. State of hVI.F., (2012) 4 SCC 516, a question arose whether the trial was vitiated as committal of proceedings had not taken place before the matter was tried by the.rt special iourt. Purported conflict or discord between the view expressed: in Moly Vs. State of trkrata, (2004) 4 SCC 584, ltielyadkaran Vs. '(jtate of l{erala, (2004) I SCC 215 on one side and State of M.F. Vs. Bhooraiit, !2001) 7 SCC 679 was considered and it was observed that ultimately the test and question is whether there has been miscarriage of justice or failure of justice. Fair trial includes fair and proper opportunity allowed by law to the accused to prove his innocence, but ultimately one should look at substance and not.technicalities and camouflage should not be allowed. Paragraph 11 of V.K. Singhal.! t: (synra) was referred to and it was observed that Magistrate was rerluired to,hold inquiry and proceed with committal proceeding, but keeping in view the nature and character of criminal proceedings in the; said case, there was no miscarriage ofjustice.

126. In Deepak Khinclti Vs. State of Rajastltan, (2012) 5 SCC 284, the consent order granted by t[e District Magistrate purportedly under Section J'yyas held to be invalid by the Additional Sessions Judge. The said order was not challenged, but an application under Section \V[6] I the District lMagistiate. This application was allowed by the Sessions: Judge ancl the order was upheld both by the High and the Supreme court. There was delay of about 3 years in moving the said application.. Reference was also mad e to Raiendra Frasad Vs'; Narcotic Cdll, (lggg) 6 SCC I10, where it was'observed that oversight '] tfre prosecution case cannot be treated u, io.pirabie lacuna' No i party in a trial can be foreclosed from correcting elrors. If proper widence wis not adduced or a relevant material was not brought on record dge,to any inadveftence, the court should be magnanimous in,l permitting iuch mistakes to be rectified. Afterall, fltnction of the 'lr criminal court is administration of criminal justice and not to corurt... eryors committed by the parties or tb find out and declare which of the parties perf,ormed better. Decision tn state of state of H.F. Vs. 'i. Nishant SAreen, (2010) 14 SCC 527 was distinguished on the ground that when sanction had been earlier refused, Vigilance Department took up the matter again with Principal Secretary for grant of sanction, though no.'fresh material was available for further consideration. Therefore, fresh trial was directed. I lZ[7]. On the question of i. quantum of punishment we maintain the awarded to A[1] to A.3. We have as reflected in the tabie SentenCeS aWaICteCl tO AI tO AJ. We nave aS relleQleo uI Lrrs Laurg i' lqn,{4 and A[5] after some deliberations and thought. The primary reason why we have awarded less than the maximum sentence to 44 and,{5 is that be.fore their arres! they individuaily did not undertake or pafticipate, in any terrorist attack or action. A[4] and,,{5 did go to Pakistan and, as per their confession, attended training camps and r 'landestinely re-entered India, but at the time of search/an est, no fire arm or live'expiosive substance like bomb, etc. were recovered. on their behest and from their residence. Sentence of 10/1I years of Rigorous Imprisonment would meet the ends of justice with the hope and expectation that they would in future act as responsible citizens and not tread on the earlier path. Counselling required dnd necessary shall be itimparted and given to the appellants specially,4"4 and A-5..a l2B. The convictions and sentences awarded under different offences by the trial court and this Court wilt be as under:- Section Funishnrent stipuIated Funishnnent awarded by trial court Conviction/Sentence ! first appeal Section 3 (3). PorA. Not less than five years Frt which may extend to life.ir. rmpflsonment, and fine A1-A[5] - Life Imprisonment with fine of Rs 5,000/- A[1] to A[3] Sentenct maintained. A[4]. and A5- Rigorour Imprisonment for a period ro' 11 years and fine of ru:5,000/- Section 3 (5) rPorA, Imprisonm ent for a term which may extend tO imprisonment A1-A[5] - Life Imprisonment 41 to 43- Sbhtencr A[4] and A5- rLigorout \{o ( extend to rupees 10 lakhs, or with both Rs.5,000/-, Sectiom 4 POTA, Punishable with imprisonment for a term which may extend to life imprisonment, or with fine which may extend to rupees ten lakh, or with both. 41-A5- Life Imprisonment Conviction of A[1] to I maintained, A[4] and I acquitted. Section 20 POTA To imprisonment for a term not exceeding ten years, or with fine, or with both A1-A5- Rigorous Imprisonment 10 Years with fine of Rs 5,000/- Sentence awarded to A[1] to I 12L rPC Death or life and fine A1-A5- Life Imprisonment Sentence awarded to A[1] to I maintained. A[4] and I 12L-A rPC Life Imprisonment or imprisonment of '10 years and fine Sentence awarded to 41 to I maintained. A[4] and I 122 XPC Life 'imprisonment or 'imprisonment for ',10 years and fine Sentence of Al to A maintained, ' A[4] and ' I awarded 10; years Rigorot Imprisonment and fine ( Rs.5,000/-. L23 rPC, Itnprisonm.ent for 10 years and fine Imprisonment 10 years with fine of Rs 5;000/- A[1] to A5- Sentenc maintained, Section 4 ESA Any explosive substance- Life Imprisonment or imprisonment of a term which may extend to 10 years, and shall 'be liable to fine Sentence awarded maintained, A[4] sentenced to toAltoA and A Rigorous Imprisonment fine of Rs.5,000/-. yeal otl explosive substance- RI for life, or with RI for a term which may extend to 10 years, and shall be liable to fine. Section 5 ES,( Explosive substance- for a term which may extend to ten ygars, and shall be liable to fine Special category explosive substance- RI for liie or with N for a'tem which may extend to ten years, and fine Imprisonment of 10 years Sentence awarded to A[1] to A In case of default of fine RI for six months under each head In case of default of paymer of fine, each accused wi suffer Simple irnprisonment fc a period of onei month for eac head.:

24. A-1 has also been cdnvicted under Section 22(2)(a) of POTA vide judgment dated 3'd January,20\ 1, bu! in the oICleI on sentence dated 6th January, 20IL, no punishment has been imposed. Punishment up to L[4] years Rigorous Imprisonment can be imposed for offences under Sectlon 22. Keeping in view,n: aforesaid position, we hold that the peliod of im'prisonment already under gone by A.i till the date of pronouncement of judgment will be treated as punishment imposed on the appellant under Section 22(2)(a) of POTA. 14'.\ \{v

725. The sentences will run concurently and Section 428 Cr.P.C. will apply.

126. The appeals filed by A[1] to A.[3] are dismissed and appeals filed by A.[4] and A[5]. are partly allowed. A-4 and A-5 will be released after having undergone the period of sentence in accordance with law, unless required to be detainel:" *t other case.,'q lt L.- (sANrrJ*frokol JUDGE 71 -'-z\, 7" (6 cARG) JUDGE l May 3/'l\zot[3] VKR/I(KB/NA / tt ti l\.J Crl. A. Nos.' 1661201 l, Z99l20ll & 308l}0tt