High Court
Case Details
Crl.A. 149/2008 BEFORE HON’BLE MR. JUSTICE I A ANSARI HON’BLE MR JUSTICE P K MUSAHARY JUDGEMENT & ORDER(CAV) P.K.Musahary J: This appeal has been preferred under Section 378(1) of the Cr.P. C. 1973 challenging the judgment and order dated 12.6.08 passed by the learned A ddl. Sessions Judge (Fast Track Court) No.4, Kamrup at Guwahati in Sessions Case No.248(K)/02 acquitting all the accused respondents of the charges under Sectio n 120-B/121-A/122/153-A/34 of the Indian Panel Code and also acquitting the accu sed/respondent No.1 of the charges under Section 14 of the Foreigners Act, 1946. 2. The prosecution case in brief is that on 7.8.1999, Sri D.Deka, D eputy Superintendent of Police of Panbazar Police Station lodged an FIR with the Panbazar Police Station alleging inter-alia that he deputed some police personn el to keep watch on a group of four persons viz. (i)Md. Fasiullah Hussain @ Hami d Mahmood @ Khalid Mahmood (ii) Md. Javed Wakar @ Md. Musaffa @Md. Mehraj @ Abdu l Rahman Danish (iii) Moulana Hafiz Md. Akram Mallick @ Musaffar Hussain @ Atabu lla @ Bhaijan (iv) Qari Salim Ahmed @ Abdul Aziz @ Sadat as they were moving in the city of Gauhati in a suspicious and clandestine manner and further they were making telephonic conversation with different persons in the country as well as abroad. The suspicious behaviour of the aforesaid persons was not above board and so they were formally arrested on 7.8.99. During interrogation of the said 4 (four) arrested accused/respondents, it came to light that Pakistan’s Secret Service i.e. Inter Service Intelligence, hereinafter referred to as (ISI) deput ed the said persons to commit mass disturbances and /or otherwise to wage war ag ainst the State and to spread enmity between different groups of people of the S tate and thereby to act prejudicial to maintenance of harmony. During interrogat ion it further came to light that the Accused/Respondents No.1 and 3 are Pakista ni Nationals and Pakistani Citizens and are apparently ISI Officers and they do not possess any passport or valid travel documents and have entered India illega lly. Moulana Hafiz Md. Akram Malik (Accused/Respondent No.5) hails from Kupwara District in Jammu and Kashmir and is an explosive expert of the militant outfit called Harkat-Ul-Mujahideen. Qari Salim Ahmed (Accused/Respondent No.4), is one of the most dreaded leaders of the outfit and the Chief Organizer of the Harkat- Ul-Mujahideen in India. These persons were also in illegal possession of foreign currencies (US Dollars-3892 and Bangladeshi Takka 492). For this purpose, a lar ge consignment of arms, RDX and other deadly explosive have been dispatched to A ssam. These four persons have also been asked by the ISI to carry out a series o f explosions on the Manali-Leh Highway in Jammu and Kashmir to cut-off military supplies and thus to wage war against the country. During preliminary interrogation of the arrested accused persons it appeared that a very dangerous scheme was drawn up by the ISI and the fundam entalist terrorist groups to create massive disturbances in the State in collusi on with certain militant groups of Assam. They are also understood to have hatch ed conspiracy to incite communal disturbances in the state by inciting misunder standing and hatred amongst the innocent and law abiding Muslim citizens of the State against the non-Muslim population.
Legal Reasoning
3. The Panbazar Police Station, on receipt of the formal FIR, regi stered a case, being Panbazar Police Station Case No.321/99 under Section 121/12 1-A/153-A read with Section 14 of the Foreigners Act, 1946, read with Sections 10/13 of the Unlawful Activities (Prevention) Act, (UPA Act in short) and star ted investigation of the case. The police after completion of investigation subm itted charge-sheet No.74 dated 21.6.2000 against accused 1) Fasilullah Hussain, 2) Javed Wakhar, 3) Md. Bilal @ Nanu Miyan under section 120-B/121/121-A/53-A IP C read with Section 14 of the Foreigners Act against accused 4) Moulana Hafiz, 5) Quari Salim 6) Abdul Mukit Choudhury, 7) Haji Bilaluddin and 8) Muslimuddin A li, under Section 120-B/121/121-A/153-A IPC. 4. The accused /respondents on receipt of process from the court ap peared before the Court of learned CJM, Kamrup, Guwhati but as the offences were exclusively triable by the court of Sessions, the learned CJM, aforesaid commi tted the case to the Court of Sessions, Kamrup, Guwahati and the said learned S essions Judge, on administrative reason, transferred the case to the court of t he AD-hoc Addl. Sessions Judge (FTC No.3), Kamrup, Guwahati for disposal. The le arned Ad-hoc Addl. Sessions Judge (FTC No.3), Kamrup , Guwahati framed charges a gainst the accused persons under Section 120-B/121-A/122/153-A/34 IPC which were read over and explained clearly to them, to which they pleaded not guilty and c laimed to be tried. After framing of charge during trial, accused Muslimuddin Al i absconded and hence the case against him was filed and the learned Adhoc Addl. Sessions Judge proceeded with the trial against the other accused persons. Afte r examination of six witnesses, the learned Addl. Sessions Judge (FTC No.3), Kam rup, Guwahati returned the case to the learned Sessions Judge, Kamrup, Guwahati expressing his unwillingness to proceed with the case and then the learned Ses sions Judge, Kamrup, Guwahati finally transferred the case to the Court of Addit ional Sessions Judge (FTC No.4) for disposal. 5. The prosecution, in support of its case, examined as many as 14 witnesses but the defence examined none. The learned Addl. Sessions Judge (FTC N o.4), (the learned trial Court in short), after closure of the evidence, examine d the Accused/Respondents under Section 313 Cr.P.C. and during such examination, the learned trial Court was of the view that an additional charge is to be fram ed against the Accused/Respondents No.1,2 and 3 and accordingly, an additional c harge was framed against the said 3(three) Accused /Respondents No. 1,2 and 3 u nder Section 14 of the Foreigners Act, 1946. The charge being read over and expl ained, they all pleaded not guilty. Both the prosecution and defence were given fair chance to examine and cross-examine the prosecution witnesses again but bo th the sides declined to adduce further evidence and as such the learned trial Court proceeded to hear the case on the point, as envisaged under Section 232 Cr .P.C. but, as the learned Court below did not consider it to be a case of no evi dence, did not record an order of acquittal and therefore, the learned trial Cou rt asked the accused/ Respondents to enter upon their defence by adducing eviden ce but all the Accused/Respondents declined to examine any defence witness and a s such the trial Court heard the final arguments of both sides. The learned trial Court, on consideration of the oral and docum 6. entary evidence on record and upon hearing the parties, passed the impugned Ju dgment and order acquitting all the accused /respondents of the charges under S ections 120-B/121-A/122/153-A/34 IPC and also acquitting the accused Respondent No.1 of the charges under Section 14 of the Foreigners Act, 1946, while convict ing the accused/respondent No.2 and 3 under Section 14 of the Foreigners Act, 1 946 and sentencing them (Respondents No.2 & 3) to undergo rigorous imprisonment for 5(five) years and to pay a fine of Rs.1,000/- each, in default to undergo ri gorous imprisonment for another 6(six) months each. Mr. D.Saikia, learned Addl. Advocate General, appearing for the 7. State/Appellant, first of all, broadly submitted that the learned trial court fa iled to appreciate the evidence of prosecution witnesses, particularly PW-2,4,7, 8,10,11, 13 and 14 and came to a wrong conclusion in holding the accused-respo ndents not guilty and acquitting them of charges framed against them. According to him, the prosecution succeeded in proving the aforesaid charges against accus ed-respondents beyond all reasonable doubt and the learned trial court should ha ve passed an order of conviction and sentence against them. He has taken us thro ugh the evidence of aforesaid prosecution witnesses and persuaded that all the charges against the respondents have been proved beyond reasonable doubt. 8. Taking us through the evidence of PW-2, Sri Atma Choudhury, Mr. Saikia submits that the said witness clearly stated in his examination-in-chief that he saw the police recovering US dollars and Bangladeshi currency notes from the possession of the accused respondent No.1,3,4 and 5 and the said witness id entified the accused respondents No.5 in the dock and stated that he was present at the time of seizure of articles by police. 9. Turning to evidence of PW-4, Alkas Ali, an autorickshaw driver, it is submitted that the said witness deposed in the Court that while he was pro ceeding in his autorickshaw to Guwahati Railway Station, he stopped near the Res erve Bank of India Point seeing a huge gathering of people thereat. The said wit ness clearly deposed that he saw police personnel seizing articles from 4 (fou r) persons and preparing a seizure list (Ext.5) on which he put his signature as a seizure witness. He proved his signatures Ext.5(6), 5(7) and 5(8) appearing o
Legal Reasoning
n the seizure list, Ext.5. 10. Mr. Saikia next takes us through the evidence of PW-7, Sri Ajit Hazarika, who is a businessman by profession. As an independent witness he clea rly deposed that while he was going towards the railway station on foot, he saw a large gathering of people. Police apprehended some persons and recovered some articles from them. He was, however, not sure how many persons were apprehended by police. In his presence the police recovered US dollars, Bangladeshi and In dian currency notes and prepared seizure lists, Exts.3 to 5. The said witness al so stated that the seized dollars and currency notes were produced in the court as Material Exts No. 1 to 8. The said witness further stated that at the time of seizure of the aforesaid articles, the police informed him that the persons fro m whom the aforesaid articles were seized, were all ISI agents. The learned Addl. Advocate General submits that the trial court 11. below failed to take into consideration the clinching pieces of oral and documen tary evidence on record, namely Ext.5, the seizure list, wherein at sl No.5 ther eof, it is clearly mentioned that the accused respondent No.1 was possessing an identity card issued, prima facie, by the Govt. of Pakistan and inspite of that the learned trial court relied on the address furnished in the charge-sheet of some other case i.e. Sessions Case No.222(K)/04 which was not called for, for i ts perusal and verification and to be satisfied that the accused-respondent No.1 is not a citizen of India but a foreign national. 12. We have been taken through the evidence of PW-8, Sri Gouri Sanka r Ram, who was posted as Second Officer of Panbazar Police Station on 7.8.09. He deposed that he was officiating as O/C at the relevant point of time. He testi fied that one Om Prakash Tewari was deployed to keep watch over few suspects who came out of Star Hotel at Ganeshguri, Dispur carrying one bag each and reached Guwahati Railway Station. From their movement it was suspected that they would leave Guwahati by train. On receiving the information, the DSP, Panbazar Divisio n, arrived at the Railway Station along with the staff. A GD entry, being Panbaz ar P.S.GDE No.243 dated 7.8.99, was made in connection with the aforesaid inform ation. The aforesaid suspected persons were kept under surveillance and during t he course of search, some objectionable documents were recovered from them and it could be ascertained that they were working as ISI agents. On being directed, PW-8 made necessary GD Entries in this regard. His signatures appear on the GD entries. He testified that he received the Ejahar from DSP Devendra Deka (PW-14 ), who took over the charge of investigation of the case. In the said Ejahar the respondents were shown as accused persons. The prosecution greatly relied on the evidence of PW-11, Sri K 13. andarpa Kr. Nath who was serving as Inspector of Police in Special Operation Uni t P.S. At the relevant point of time he was the IO of the SOU P.S.Case No. 1/99 which was registered under Sections 120B/ 121/ 121A/ 124A/ 122/ 153A IPC. He co rroborated the evidence of PW-14, IO of this case, that he (Debendra Deka) DSP o f Panbazar Division, seized copies of some seizure lists relating to the said SO U P.S.Case. He stated that the seized articles were kept under his custody and t ook photocopies thereof by himself. This witness had given the description of se ized articles as under: One seizure list dated 25.8.99 made by S.I.Dilip Kr. Cho udhury of SOU PS in connection with SOU P.S. case No.1/99 U/S 120(B)/121/121(A)/ 124(A)/122/153(A) IPC covered by SOU M.R.No.2/99. (1) (2) One seizure list dated 25.8.99 made by S.I.Dilip Kr. Chou dhury of SOU PS in connection with SOU P.S. case No.1/99 covered by SOU P.S.M.R. No.3/99. (3) One seizure list dated 4.10.99 made by Inspector K K Nath of SOU PS in connection with SOU P.S. case No.1/99 covered by SOU P.S.M.R.No. 4/99. He proved the seizure list, Ext.12, and his signature, Ext.12(1) . He also testified that the accused person in the court was present in the cour t in connection with SOU P.S.Case No.1/99 which was investigated by him. He coul d remember the names of accused as Fashiullah,Kafayatullah, Haji Bilal and Salim . He had forgotten the names of other accused persons due to long time gap. On b eing cross-examined he stated that he seized the articles from accused persons a nd the same were again seized by Sri Deben Deka, PW-14 from him. The seized arti cles, before being seized from him by Deben Deka, IO, were kept in the ’Malkha na’ (storehouse) of SOU PS. He however did not know how the articles were kept b ecause that was not a part of his duty. The said accused persons Fashiulla was i nterrogated by him at the police station and he had seen him in the dock on the date of deposition. In cross-examination this witness also stated that he did n ot mention the names of the accused persons whose names he mentioned at the tim e of deposition in the Court. 14. The learned trial court, according to Mr. Saikia, did not take into consideration the evidence of PW-10, Sri Satish Ch. Kundu, SI Bhaktinagar P olice Station, Jalpaiguri District, West Bengal, who categorically stated that t he IO of the present case visited the Bhaktinagar Police Station and seized 5(fi ve) packets of samples kept in the Malkhana of Bhaktinagar Police Station vide E xt.6. The said samples contained RDX and as such it could be said that all the accused-respondents, in furtherance of their common intention and conspiracy, co llected the RDX with a view to use the same against the people of the State of A ssam and the country. 15. It is also submitted that the evidence of P.W.13, Sri Sadhan Kr. Bhowmik, who was posted at Islampur VV under CID West Bengal, was also not take n into consideration by the learned trial Court. The said witness stated that the IO of this case Sri Debendra Nath Deka visited the CID office and seized som e documents in his presence which includes certified true copy of the carbon cop y of information regarding seizure of RDX and other accessories for explosion, c ertified true copy of report carbon copy sent to the SDJM, Jalpaiguri by one Sri M.C. Gope, Inspector of Police, CID (WB) along with seizure list and crime repo rt of FSL examination and certified copy of acknowledgement (photo copy) to SDJM , Jalpaiguri by the Director of CFSL, Calcutta-14. The said witness also stated that documents were seized from the possession of MC Gope, Inspector of CID who proved the same and marked as Ext.7. He also proved his signature, Ext.7(2), a ppearing on the said seizure list. It is further submitted that the learned tri al court failed to appreciate the evidence of PW-14, Sri Debendra Nath Deka, wh o was the IO of the case. The IO in his deposition stated in details how he co llected the informations and materials and how the police proceeded against th e accused-respondents. According to learned Addl.Advocate General, the IO was th oroughly cross-examined by the defence but his evidence could not be demolished in any manner. In any case, it is argued that prosecution adduced cogent and rel iable evidence fully establishing the charges against the accused respondents, y et the learned trial court erroneously held that the charges against them could not be proved and accordingly passed the impugned order acquitting all of them o f charges u/s 120B/121A/122/153A/34 IPC. Mr. Saikia has referred to and relied on the following authoriti 16. es: State of Tripura -vs- Shankar Paul (Dr.) & ors reported in (2009) 5 GLT (1) 296 on parameters of High Court’s power in an appeal against acquittal and princ iples laid down relating to Section 378 Cr.P.C. under which the High Court can r eview the entire evidence and arrive at its own conclusion interfering with find ings of the trial court to ensure prevention of miscarriage of justice and for t he ends of justice : (2) Abdul Rejjak -vs- Sate of Tripura, reported in (2010) 4 GLT 263 ; (3) (4) (5) 7; (6) 437: