Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT) Delhi

10) The aforesaid view is reiterated by this Court in Jayendra Vishnu Thakur Vs. State of Maharashtra (2009) 7 SCC 104 wherein it is observed: “ 24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-inchief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion. ”

11) In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. This Court, in the case of Zahira Habibullah Sheikh (5) Vs. State of Gujarat (2006) 3 SCC 374 has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights. It is stated: “35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice—often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny. ”

12) In M.H. Hoskot Vs. State of Maharashtra 1978 (3) SCC 544, this Court has held:

”

13) In Mohd. Sukur Ali Vs. State of Assam (2011) 4 SCC 729, it is observed:

14) In the case of Hussainara Khatoon and Others v. Home Secy., State of Bihar (1980) 1 SCC 98, it is held:

15) In the case of Khatri Vs. State of Bihar (1981) 1 SCC 627, this Court has held:

6. But even this right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred upon them by law. There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy. It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose. The Magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. Unfortunately, the Judicial Magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided. We would, therefore, direct the Magistrates and Sessions Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State. We would also direct the State of Bihar and require every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicable situation. The only qualification would be that the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State. ”

16) In Ram Awadh v. State of U.P. 1999 Cr.L.J. 4083, the Allahabad High Court held:

37. Right to fair trial, presumption of innocence until pronouncement of guilt and the standards of proof i.e. the prosecution must prove its case beyond reasonable doubt are the basic and crucial tenets of our criminal jurisprudence. The courts are required to examine both the contents of the allegation of prejudice as well as its extent in relation to these aspects of the case of the accused. It will neither be possible nor appropriate to state such principle with exactitude as it will always depend on the facts and circumstances of a given case. Therefore, the court has to ensure that the ends of justice are met as that alone is the goal of criminal adjudication.” (20)In view of the above discussion, I cannot sustain the judgments impugned and they must be reversed and the matter is to be remanded to the Trial Court with a specific direction that the Trial Court would assist the accused by employing a State counsel before the commencement of the trial till its conclusion, if the accused is unable to employ a counsel of his own choice. Since I am remanding the matter for fresh disposal, I clarify that I have not expressed any opinion regarding the merits of the case. (21)In view of the above, I allow the appeal and set aside the conviction and sentence imposed by the Additional Sessions Judge in Sessions Case No.122 of 1998 dated 03.11.2004 and the Judgment and Order passed by the High Court in Crl. Appeal No. 41 of 2005 dated 04.08.2006 and remand the case to the Trial Court for fresh disposal in accordance with law and in the light of the observations made by me as above. Since the incident is of the year 1997, I direct the Trial Court to conclude the trial as expeditiously as possible at any rate within an outer limit of three months from the date of communication of this order and report the same to this Court.........................……………………J. [H.L. DATTU] New Delhi, January 11, 2012.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1091 OF 2006 Mohd. Hussain @ Julfikar Ali … Appellant

VERSUS

The State (Govt. of NCT) Delhi … Respondent JUDGMENT CHANDRAMAULI KR. PRASAD, J.

1. I have gone through the judgment prepared by my noble and learned Brother, H.L.Dattu, J. and I concur that the conviction and sentence of the appellant is fit to be set aside as he was not given the assistance of a lawyer to defend himself during trial but, with profound respect, I find it difficult to persuade myself that it is a fit case which deserves to be remanded to the Trial Court for fresh trial.

2. Facts which are necessary for the decision of this appeal are that the appellant, Mohd. Hussain @ Julfikar Ali is a national of Pakistan and he was put on trial for offences under Section 302 and 307 of the Indian Penal Code and Section 3 and 4 of the Explosives Substances Act. He was held guilty under Section 302 and 307 of the Indian Penal Code and Section 3 of Explosives Substances Act and sentenced to undergo imprisonment for life each under Section 307 of Indian Penal Code and Section 3 of the Explosives Substances Act. The trial court, however, punished him with death for offence under Section 302 of the Indian Penal Code and submitted the proceeding for confirmation to the High Court. The appellant preferred appeal before the High Court against his conviction and sentence. Both the appeal and the reference were heard together and by an impugned common judgment the High Court has dismissed the appeal and confirmed the death sentence.

3. This is how the appellant is before us with the leave of the Court. He challenges his conviction and sentence inter alia on the ground that he was not given a fair trial, which alone vitiates his conviction and sentence. India is the world’s largest and most vibrant democracy and the judiciary is to ensure the rule of law. This Court being the Court of last resort cannot brush aside the claim without scrutiny only because the crime is serious and allegedly committed by the citizen of a country with which this country has no cordial relation.

4. According to the prosecution, as usual in a winter evening of 30th December, 1997 at 6.20 P.M., a Blue-line bus carrying passengers was on way to Nangloi from Ajmeri Gate, Delhi and when stopped at Rampura bus stand on Rohtak Road to drop the passengers, an explosion took place inside the bus in which four passengers died and 24 persons sustained serious injuries.

5. A case under Section 302, 307 and 120-B of Indian Penal Code and Section 3 and 4 of the Explosives Substances Act was registered on the same day. During the course of investigation, one Darshan Kumar, the conductor of the aforesaid blue line bus disclosed to the investigating agency that one passenger boarded the bus from Paharganj with a rexine-bag saying that he would go to Nangloi. He kept the rexine-bag underneath the seat where he was sitting but got down at Karol Bagh leaving the rexine-bag. Further investigation brought to light that some persons belonging to terrorist organizations are operating in the Capital and their object is to create an atmosphere of terror, insecurity and instability in the country by killing innocent citizens. This information prompted raids at different parts of the city in which hand grenades and materials used for making bombs were recovered. Some persons were also arrested and during the interrogation they admitted their association with terrorist organizations. They also admitted to have come to this country for ‘JEHAD’. This information received in bits and pieces pointed the needle of suspicion on the appellant in the crime in question and he was apprehended with pistol from his house at Lajpat Nagar. In order to ascertain his role, the Investigating Agency decided to hold test identification parade for which the appellant did not object in the beginning but later on refused to join in the test identification parade.

6. After usual investigation, the Police submitted charge-sheet under Section 302, 307 and 120-B of the Indian Penal Code and under Section 3 and 4 of the Explosives Substances Act. The charge-sheet along with the police papers were laid before the Metropolitan Magistrate for commitment. The appellant was in jail and produced before the Committal Magistrate on 6th July, 1998. He disclosed to the learned Magistrate that he was “not in a position to engage a lawyer and be provided with a lawyer through legal aid”. It seems that the assistance of one Mr. V.K.Jain, Advocate was made available to the appellant who appeared before the Committing Court on 20th July, 1998 and prayed for time for scrutiny of documents. Ultimately, the appellant was committed to the Court of Session on 6th August, 1998. The appellant was produced before the Trial Court from time to time and on 18th February, 1999 was represented by Mr.Firoz Khan and Mr. Riyaj Ahmed, Advocates. On that date, the argument on framing of charge was heard and the Trial Court framed charges under Section 302 and 307 of the Indian Penal Code and under Section 3 and 4 of the Explosives Substances Act against the appellant to which he pleaded not guilty and the prosecution was directed to produce its witnesses to substantiate the charge. On 18th May, 1999, the appellant was produced before the Trial Court but his counsel did not put in his appearance. Despite that, P.W.l- Darshan Kumar, the conductor of the bus was examined in part and his cross- examination was deferred at the request of the appellant. However, on the same day, P.W.2- Vijay Kumar was examined and discharged. On the next date fixed in the case i.e. 3rd June, 1999 two witnesses namely; P.W.3- Moin Khan and P.W.4- Imtiaz Khan were examined and discharged. But cross-examination of P.W.1- Darshan Kumar did not take place at the request of the defence counsel. The next date relevant is 20th July, 1999 when the appellant was represented by his counsel and on that date, P.W.5- Ganesh Sharma, P.W.6- Basant Verma and P.W.7- Manohar Lal were examined and discharged. Thereafter, the case was adjourned to 30th August, 1999 and from that date till 1st October, 2003, though the appellant was not represented by any counsel, altogether 56 prosecution witnesses were examined to prove the charges against him. Obviously in the absence of the counsel the truthfulness or otherwise of their evidences were not tested by cross-examination.

7. It is relevant to note that the Trial Court, during all this long period, did not realize that the appellant was not represented by any counsel and it is on 4th December, 2003 the appellant brought to the notice of the Trial Court that for the last several dates, the counsel appointed by the Court was not present and hence a new counsel be appointed. It is on the appellant’s prayer that one Ms. Sadhana Bhatia, Advocate present in the Court on the said date, was appointed to defend the appellant at the expenses of the State. Thereafter, on 22nd December, 2003, in the presence of said Ms. Sadhana Bhatia, counsel for the appellant, evidences of P.W.57- Dr.Mamtesh, P.W.58- Dr.Narendra Bhambri and P.W.59- ASI Mahender Singh were recorded. Thereafter, the statements of the witnesses from P.Ws.60 to 65 were recorded in the presence of appellant’s counsel, Ms. Sadhana Bhatia. Ultimately the statement of the appellant was recorded on 6th October, 2004 and argument on behalf of prosecution was heard in part. Next hearing took place on 8th October, 2004 when the argument on behalf of the prosecution was concluded and the case was adjourned to 12th October, 2004 for defence argument. It is relevant here to state that during all this period the appellant was in custody. It is only when the argument on behalf of the appellant was to be heard, counsel representing him later i.e. Ms. Bhatia realized that the witnesses have been examined and discharged without crossexamination in the absence of the defence counsel and accordingly, an application was filed for recall of P.W.1- Darshan Kumar for cross-examination. The said prayer was allowed and P.W.1- Darshan Kumar was cross-examined and discharged on 23rd October, 2004. It is worth mentioning here that the Trial Court has recorded on said date that the accused has not prayed for cross-examination of any other witness and accordingly, it heard the argument and posted the case for judgment on 26th October, 2004. The appellant was held guilty and sentenced as above.

8. While holding the appellant guilty the trial court has not only relied upon the evidence of the witnesses who have been cross-examined but also relied upon the evidence of witnesses who were not cross-examined. The fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose crossexamination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected. The appellant in the present case was denied this right only because he himself was not trained in law and not given the assistance of a lawyer to defend him. Poverty also came in his way to engage a counsel of his choice.

9. Having said so, it needs consideration as to whether assistance of the counsel would be necessary for fair trial. It needs no emphasis that conviction and sentence can be inflicted only on culmination of the trial which is fair and just. I have no manner of doubt that in our adversary system of criminal justice, any person facing trial can be assured a fair trial only when the counsel is provided to him. Its roots are many and find places in manifold ways. It is internationally recognized by covenants and Universal Declaration of Human Rights, constitutionally guaranteed and statutorily protected.

10. Article 14 of the International Covenant on Civil and Political Rights guarantees to the citizens of nations signatory to that covenant various rights in the determination of any criminal charge and confers on them the minimum guarantees. Article 14 (2) and (3) of the said covenant read as under: “Article 14. xxx xxx xxx

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;…….” Article 14 (3) (d) entitles the person facing the criminal charge either to defend himself in person or through the assistance of a counsel of his choice and if he does not have legal assistance, to be informed of his right and provide him the legal assistance without payment in case he does not have sufficient means to pay for it. It is accepted in the civilized world without exception that the poor and ignorant man is equal to a strong and mighty opponent before the law. But it is of no value for a poor and ignorant man if there is none to inform him what the law is. In the absence of such information that courts are open to him on the same terms as to all other persons the guarantee of equality is illusory. The aforesaid International Covenant on Civil and Political Rights guarantees to the indigent citizens of the member countries the right to be defended and right to have legal assistance without payment.

11. Not only this, the Universal Declaration on Human Rights ensures due process and Article 10 thereof provides that everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charges against him. Article 11 of Universal Declaration of Human Rights guarantees everyone charged with a penal offence all the guarantees necessary for the defence, the same reads as under: “(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”

12. These salutary features forming part of the International Covenants and Universal Declaration on Human Rights are deep rooted in our constitutional scheme. Article 21 of the Constitution of India commands in emphatic terms that no person shall be deprived of his life or personal liberty except according to the procedure established by law and Article 22 (1) thereof confers on the person charged to be defended by a legal practitioner of his choice. Article 39 A of the Constitution of India casts duty on the State to ensure that justice is not denied by reason of economic or other disabilities in the legal system and to provide free legal aid to every citizen with economic or other disabilities.

13. Besides the International Covenants and Declarations and the constitutional guarantees referred to above, Section 303 of the Code of Criminal Procedure gives right to any person accused of an offence before a criminal court to be defended by a pleader of his choice. Section 304 of the Code of Criminal Procedure contemplates legal aid to accused facing charge in a case triable by Court of Sessions at State expense and the same reads as follows: “304. Legal aid to accused at State expense in certain cases. (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State. (2) The High Court may, with the previous approval of the State Government make rule providing for- (a) The mode of selecting pleaders for defence under sub-section (2); (b) The facilities to be allowed to such pleaders by the courts;

(c) The fee payable to such pleaders by the

Government, and generally, for carrying out the purposes of sub-section (1). (3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other courts in the State as they apply in relation to trials before the Courts of Session.” From a plain reading of the aforesaid provision it is evident that in a trial before the Court of Sessions if the accused is not represented by a pleader and has not sufficient means, the court shall assign a pleader for his defence at the expense of the State. The entitlement to free legal aid is not dependent on the accused making an application to that effect, in fact, the court is obliged to inform the accused of his right to obtain free legal aid and provide him with the same.

14. In my opinion, the right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trial. The right to be defended by a legal practitioner, flowing from Article 22 (1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd Amendment Act of 1976 and enactment of sub-section 1 of Section 304 of the Code of Criminal Procedure. Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants and Human Rights Declarations. If an accused too poor to afford a lawyer is to go thorough the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just. The right to be heard in criminal trial would be inconsequential and of no avail if within itself it does not include right to be heard through counsel. One cannot lose sight of the fact that even intelligent and educated men, not trained in law, have more than often no skill in the science of law if charged with crime. Such an accused not only lacks both the skill and knowledge adequately to prepare his defence but many a time looses his equilibrium in face of the charge. A guiding hand of counsel at every step in the proceeding is needed for fair trial. If it is true of men of intelligence, how much true is it of the ignorant and the illiterate or those of lower intellect! An accused without the lawyer faces the danger of conviction because he does not know how to establish his innocence.

15. Bearing in mind the aforesaid principles, I proceed to examine the facts of the present case. In the case in hand the accused is a Pakistani and seems illiterate. He asked for engagement of a counsel to defend him at State expenditure which was provided but unfortunately for him the counsel so appointed remained absent and a large number of witnesses have been examined in the absence of the counsel. Those witnesses have not been cross-examined and many of them have been relied upon for holding the appellant guilty. The learned Judge in seisin of the trial forgot that he has an overriding duty to maintain public confidence in the administration of justice, often referred to a duty to vindicate and uphold the majesty of law. He failed to realize that for an effective instrument in dispensing justice he must cease to be a spectator and a recording machine but a participant in the trial evincing intelligence and active interest so as to elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community itself. Fundamental principles based on reason and reflection in no uncertain term recognize that the appellant haled into court in our adversary system of criminal justice and ultimately convicted and sentenced without a fair trial. There are high authorities of this Court which take this view and I do not deem it expedient to multiply and burden this judgment with those authorities as the same have been referred in the judgment of my learned Brother Dattu, J. except to refer to a judgment of this Court in the case of Hussainara Khatoon & Others v. Home Secy., State of Bihar, (1980) 1 SCC 98, in which it has been held as follows:

16. Having found that the appellant has been held guilty and sentenced to death in a trial which was not reasonable, fair and just, the next question is as to whether it is a fit case in which direction be given for the de novo trial of the appellant after giving him the assistance of a counsel. I have given my most anxious consideration to this aspect of the matter and have no courage to direct for his de novo trial at such a distance of time. For an occurrence of 1997, the appellant was arrested in 1998 and since then he is in judicial custody. The charge against him was framed on 18.02.1999 and it took more than five years for the prosecution to produce its witnesses. True it is that in the incident four persons have lost their lives and several innocent persons have sustained severe injuries. Further, the crime was allegedly committed by a Pakistani but these factors do not cloud my reason. After all, we are proud to be a democratic country and governed by rule of law. The appellant must be seeing the hangman’s noose in his dreams and dying every moment while awake from the day he was awarded sentence of death, more than seven years ago. The right of speedy trial is a fundamental right and though a rigid time limit is not countenanced but in the facts of the present case I am of the opinion that after such a distance of time it shall be travesty of justice to direct for the appellant’s de novo trial. By passage of time, it is expected that many of the witnesses may not be found due to change of address and various other reasons and few of them may not be in this world. Hence, any time limit to conclude the trial would not be pragmatic.

17. Accordingly, I am of the opinion that the conviction and sentence of the appellant is vitiated, not on merit but on the ground that his trial was not fair and just.

18. Appellant admittedly is a Pakistani, he has admitted this during the trial and in the statement under Section 313 of the Code of Criminal Procedure. I have found his conviction and sentence illegal and the natural consequence of that would be his release from the prison but in the facts and circumstances of the case, I direct that he be deported to his country in accordance with law and till then he shall remain in jail custody.

19. In the result the appeal is allowed, appellant’s conviction and sentence is set aside with the direction aforesaid. ………………………………………………………….J. (CHANDRAMAULI KR PRASAD) New Delhi, January 11, 2012.