lashkar-e-toiba(let) republic day blast conspiracy case delhi pota court judgement
TRANSCRIPT
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IN THE COURT OF MS. RAVINDER KAUR
ASJ, N.DELHI.
SC NO. 36/02
State Vs. 1. Mohd.Afsal Kumhar S/o Ghulam Mohd Kumhar
R/o Telwani, Anantnag,PS Anantnag,Kashmir.
2. Ansar Ahmed Dar
S/o Late Mohd Afzal DarR/o Vill Dayal Gam,PS Sadar, Anantnag,Kashmir.
3. Bilal Ahmed Dar S/o Late Mohd Jabbar Mir
R/o Vill Dayal Gam,PS Sadar, Anantnag, Kashmir
4. Adil Nazir Keen S/o Nazir Ahmed keen
R/o Chini Chowk, PS Sadar,Distt. Anantnag, Kashmir &Vill. Tailwani, PS Anantnag,J & K.
5. Dilip Tribhuvandas Barot
@ Dilip Bhai,
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S/o Late Tribhuvandas,R/o Vill. Sumok, PS & TehsilUnjha, Distt. Mehsana,Gujarat.
6.Rajesh Khoda Bhai Prajapati@ Raju Bhai S/o Khoda Bhai,R/o M. Ramesh Kumar andCo.,22 Kalyan Building,Kumbhar Tukra, Bhuleshwar-II, Mumbai,
Also at 401, Krishna Building,Dhiraj Presidency,Kondiwali (W), Mumbai.
7. Mehboob Karim MerchantS/o Karim Merchant,
R/o Dintinkar Street,Memoni Compound,Nagpara, Mumbai.
Also at No. 51, StatusBuilding, 5th Floor,Uari Road, Warsowa,
Andheri (W), Mumbai.
FIR No. : 18/02PS : Kotla Mubarakpur.U/s : 121A/122 IPC, Sec. 3(b) 3(5), 4(b)
20 and 22(3)(5) POTA and Sec.4(b) & 5 Explosive Substances
Act.
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J U D G M E N T
1 The prosecution case is that during
the last week of December 2001, information
was received by the Central Intelligence
Bureau that under the instructions of thePak Intelligence services (ISI), the militants
of Lashkar-e- Tayyaba a terrorist
organisation, were sending huge quantity of
explosives for spreading terror in Delhi by
bomb explosions on the eve of Republic Day
and were also collecting money through
hawala sources for this purpose. For the
investigation of the said information a team
under the supervision of Inspt. Mohan
Chand Sharma, was formed comprising of SI
Govind Sharma, SI Sanjay Dutt, SI Lalit
Mohan, SI Hridaya Bhushan, SI Mehtab
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Singh, SI Sushil Kumar, ASI Anil Tyagi, ASI
Bhoop Singh, ASI Anil Thakur, HC Narender
HC Vikram, HC Devender, HC Satender, HC
Shajahan, Ct. Ranjeet and Ct. Rakesh,
sources were deployed to further developthe aforesaid information and a close watch
was kept on the possible hideouts of
Kashmiri Militants in Delhi. On 14/1/02 at
about 12:30pm specific secret information
was received that three kashmiri boys
having links with Lashkar -e -Toiba were
staying with Bilal a kashmiri boy at Karan
Hostel, Kotla Mubarakpur and that they
were possessing huge quantity of explosives
and money collected through hawala. On
receipt of the aforesaid information, Inspt
Mohanchand Sharma recorded the same in
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roznamcha, discussed the matter with senior
officers and at about 1:15pm left for Karan
Hostel in private cars and two wheelers
alongwith the aforesaid staff with arms and
ammunition and reached there at 1:30pm.On secret enquiry it revealed that three
Kashmiri boys who came few days ago were
staying with Bilal in Room No. 3, Karan
Hostel Gali Parsadi, Kotla Mubarakpur but
at that time only Bilal and one other boy
was present and the other two had gone
somewhere. Under the instructions of the
senior officers the owner of Karan Hostel
Sh. Ram Kumar s/o Sh. Tej Ram was
contacted. He was apprised of the situation
and thereafter was joined in the raiding
party with his consent. He too confirmed
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the fact from Karan Hostel that Bilal and
one of his accomplice were in the room and
the other two had gone out. Thereafter
alongwith Ram Kumar watch was kept on
the aforesaid hostel and its nearby areasand waited for the other two boys. SI
Govind Sharma asked 8-10 passersby to join
the investigation but they refused to join
the same. At about 8pm two boys were
spotted coming to Karan Hostel with a bag
each in their right hand who were identified
by Ram Kumar as the boys staying with
Bilal. Both the boys were apprehended at
the gate of the hostel and their names and
addresses were disclosed as Mohd Afsal
Kumhar s/o Ghulam Mohd. Kumhar r/o
Telwani, Anantnag, J&K and Adil Nazir Keen
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s/o Nazir Ahmed Keen r/o Chini Chowk, PS
Sadar, Distt. Anantnag, J&K. Thereafter the
other two accused from the hostel room
were apprehended whose name and address
were later on revealed as Ansar Ahmed Dars/o Late Mohd. Afsal Dar and Bilal Ahmed
Mir s/o Late Mohd. Jabbar Mir both
residents of r/o Vill. Dayalgam PS Sadar,
Distt. Anantnag, J&K. The rexine bag Ex.P1
which was in the hand of Mohd. Afsal
Kumhar, of red and white colour on which
Speed Pre-paid Mobile was written, was
checked and was found containing a
polythene bag Ex.P4 on which Mission
Kashmir was written on one side and had
posters of films on it which contained a
transparent polythene Ex.P5 containing
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kneaded black and brown (bura) colour
explosive material -RDX Ex.P3, Rs. 5 lakhs
cash collectively Ex.P2 (30 bundles of
currency notes of Rs. 50/- denomination
amounting to Rs. 1.5 lakhs, 35 bundles ofcurrency notes of Rs. 100/- denomination
amounting to Rs. 3.5 lakhs) and two
detonators Ex.P6 & P7 wrapped in tape
with wires in the side pocket of the
aforesaid bag.
1. The bag Ex.P8 in the hand of Adil
Nazir Keen was of maroon colour with
GEMS Park written on it in English, which
was checked and was found containing one
black colour polythene bag Ex.P10
containing black and brown (bura) colour
kneaded explosive material RDX, Ex.P11,
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Rs. 5 lakhs cash collectively Ex.P9 (50
bundles of currency notes of Rs. 100/-
denomination) and two detonators Ex.P12
& P13wrapped in tape with wires from the
side pocket of the aforesaid bag.2. RDX recovered from accused Mohd.
Afsal and Anil Nazir on weighing were
found to be 2.280 kg and 2.0 kg respectively,
out of which 10-10 gms RDX as sample was
taken out and were kept in separate plastic
jars which were numbered as S1 & S2. The
recovered detonators were kept in the
respective polythene bags with cotton and
kept in two separate plastic jars and were
marked D1 & D2 respectively. Remaining
RDX 2.270 and 1.990 kgs were kept in the
same poly bags, converted into two separate
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pulandas, sealed with the seal of GS and
seized. Separate pulandas of the jar S.No. S1,
S2, D1 and D2 were prepared, sealed with
the seal of GS and seized. The recovered
bags each containing Rs. 5 -5 lakhs wereseized vide seizure memo. CFSL form was
filled.
3. Accused Bilal Ahmed Mir and
Ansar Ahmed Dar during formal
interrogation disclosed that in room No. 3
Karan Hostel under their beds there were
two bags containing total Rs. 24.9 lakhs and
explosive materials. On their pointing out, a
blue colour bag having yellow stripes and
FORTEI in English written on it was
recovered from under the bed near the side
of bathroom. Rs. 10.90 lakh (one bundle of
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Rs. 500/- denomination, 98 bundles of Rs.
100/- denomination and 12 bundles of Rs.
50/- denomination) were recovered from the
aforesaid bag. From the recovered green
colour bag , a polythene bag containingwhite colour explosive material and Rs. 14
lakh (14 bundles of currency notes of Rs.
500/- denomination amounting to Rs. 7
lakhs, 70 bundles of currency notes of Rs.
100 denomination amounting to Rs 7 lakhs)
were recovered. The explosive material
weighed 3.900 kgs from which 10 gms
sample was taken out and was kept in a
plastic jar and was marked as S.No. S3. The
remaining 3.890 kgs and the sample S3 were
separately sealed in a pulanda. The
aforesaid pulandas were sealed with the seal
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of GS. The aforesaid two bags containing Rs.
24.90 lakhs in total and the sealed plastic
jars were taken into possession vide seizure
memos.
4. Form CFSL was filled in. Seal afteruse was handed over to SI Sanjay Dutt. It
was found that accused Mohd. Afzal
Kumhar, Adil Nazir Keen, Ansar Ahmed Dar
and Bilal Ahmed Mir inorder to spread
terror in the Indian sub continent by using
bombs and explosives which could cause
huge loss of lives and properties had
collected explosives and money for
facilitating the aforesaid purpose. As such SI
Govind Sharma prepared rukka and sent
ASI Anil Tyagi to PS Kotla Mubarakpur for
registration of the case U/s 121/121A/122/123
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IPC and 4/5 Explosive Substance Act. After
registration of the case, SI Sharad Kohli
reached the spot and further investigation
was handed over to him. He inspected the
spot and prepared siteplan at the instanceof SI Govind Sharma. He arrested the
accused persons. On the pointing out of
accused Adil a mobile phone bearing No.
9811336055 kept on the table of Room No. 3,
Karan Hostel was taken into possession.
Separate disclosure statements of all the
accused persons were recorded wherein they
disclosed that they had been motivated by a
Pakistani terrorist of Lashkar -e-Tayyaba
namely Abu Amaar, Distt. Commander at
Anantnag to join Lashkar-e- Tayyaba for
jehad and that they were planning to cause
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explosions during the Republic Day Parade.
They further disclosed that they could get
more explosives recovered and that they
could point out to the hideouts of the
militants in Anantnag and Kashmir and getthem arrested. On the basis of the disclosure
statement of the accused persons and the
explosives and money recovered, it revealed
that they wanted to spread terror in the
Indian subcontinent by causing huge loss of
lives and properties, Sec. 3/4/5/20/2/22
POTO and Sec. 120 B IPC were added in the
chargesheet and on 15/1/02 further
investigation was handed over to ACP Rajbir
Singh. During investigation the accused
persons were produced in court and their
PC remand was taken. In furtherance of
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the disclosure statement of the accused
persons, accused Mohd. Afzal pointed out
towards accused Dilip Tribhuvandas Barot @
Dilip Bhai, Manager, M. Ramesh Kumar &
Co., 4482-84, Ist Floor, Dau Bazar, ClothMarket, Fatehpuri, Delhi who used to
provide hawala money to the terrorists for
facilitating their terrorist activities. He was
arrested and Rs. 4.60 lakhs hawala money
was recovered from his possession. His
disclosure statement was recorded wherein
he disclosed that he used to provide hawala
money to the terrorists on the asking of
Raju Bhai Manager, M. Ramesh Kumar &
Co. Mumbai. During PC Remand , DCP,
Special Cell, Sh. Balaji Srivastava recorded
confessional statement of accused Mohd.
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Afzal and Adil Nazir. Thereafter they were
produced before ACMM after expiry of their
PC remand and their confirmation of the
confessional statement was recorded. Other
accused persons did not volunteer formaking confessional statement as such they
were not produced before the DCP Special
Cell.
5. On 18/1/02 Mumbai police arrested
accused Rajesh Khora Bhai Prajapati and
after his interrogation, accused Mehboob
Kareem Merchant was arrested. Transit
remand of both the accused was obtained
from ACMM Mumbai by SI Sanjay Dutt and
on 20/1/02 both the accused were arrested
in this case. Their separate disclosure
statements were recorded.
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6. During investigation the exhibits
were sent to CFSL, CBI, CGO Complex,
Lodhi Colony. On 25/2/02 the CFSL result
was obtained wherein it was opined that
the four electronic detonators were liveones, physico-chemical examination
confirmed the presence of RDX, PETN and
ammonium nitrate based mixture of High
explosive in the contents and that the above
exhibits could form components of
Improvised Explosive Devices (IEDs) and
were explosive substances as defined in
Explosive Substances Act, 1908 and the
physico-chemical examination confirmed the
presence of potassium chlorate in the
contents which form a component of
Improvised Explosive Mixture.
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7. During investigation the call details
of the mobile phone bearing No.9811336055
recovered from the accused persons were
obtained. The accused had called at
telephone No. 0113988310 on 7/1/02 which isinstalled at the office of M Ramesh Kumar
& Co., 4482-84, Ist Floor, Dau Bazar, Cloth
Market, Fatehpuri, Delhi. One another
telephone was also installed at the aforesaid
address bearing No. 3957693 which the
accused had disclosed as 3157693. The MTNL
record of telephone No. 3988310 and 3957693
was obtained and placed on record. After
complete investigation the chargesheet was
filed to court against the accused persons
namely Mohd Afsal Kumhar, Adil Nazir
Keen, Ansar Ahmed Dar, Bilal Ahmed Mir,
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Dilip Tribhuvandas Barot @ Dilip Bhai,
Rajesh Khoda Bhai Prajapati @ Raju Bhai
and Mehboob Karim Merchant.
8. Accused Mehboob Karim Merchant
was discharged vide order dtd. 20/4/02.9. Accused Rajesh Khoda Bhai
Prajapati and accused Dilip Tribhuvandas
Barot were discharged by the order of the
POTA Review Committee dtd. 30/12/04 and
10/5/05 respectively.
10. All the remaining accused
persons namely Mohd Afsal Kumhar, Ansar
Ahmed Dar, Bilal Ahmed Mir and Adil Nazir
Keen were charged U/s 121A/122 IPC.
11. Accused Ansar Ahmed Dar was
charged U/s 3(b) 3(5), 4(b) and 20 POTA
and Sec. 4(b) & Sec.5 of Explosive
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Substances Act.
12. Accused Bilal Ahmed Meer was
charged U/s 3(b) 3(5), 4(b) and 20 POTA
and Sec. 4(b) & Sec.5 of Explosive
Substances Act.13. Accused Adil Nazir Keen was
charged U/s 3(b) 3(5), 4(b), 20, 22(3)(5) POTA
and Sec. 4(b) & 5 Explosive Substances Act.
14. Accused Mohd Afsal were charged
U/s 3(b) 3(5), 4(b), 20, 22(3)(5) POTA and Sec.
4(b) & 5 Explosive Substances Act.
15. The prosecution in support of its
case has examined 19 witnesses.
A) Secret information / Apprehension /
Recovery / Arrest:
(i) The relevant witnesses regarding
receipt of secret information through Central
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Intelligence Agency that some members of
Lashkar-e- Toiba had planned to strike
around Republic Day celebration and
destruct the Republic Day and that huge
amount from hawala route was likely toreach the terrorist as well as regarding the
specific information received on 14/1/02 that
some militants of Lashkar -e- Toiba were
staying at Karan Hostel Kotla Mubarakpur
and were having explosive substance and
hawala money as well as their apprehension
are PW8 SI Govind Sharma, PW12 SI Sanjay
Dutt, PW15 Ram Kumar an independent
witness, PW16 ASI Anil Tyagi , PW17 SI
Sharad Kohli and PW19 Inspt. Mohanchand
Sharma.
(ii) As per the prosecution during
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last week of December 2001 information was
received from Central Intelligence Bureau
that under the instructions of the PAK
Intelligence services the militants of LeT a
terrorist organization, were sending hugequantity of explosives for spreading terror in
Delhi by bomb explosions on the eve of
Republic Day and were also collecting
money through hawala sources for this
purpose. For the investigation of the said
information a team under the supervision of
Inspt. Mohan Chand Sharma was
constituted.
(iii) Inspt. Mohan Chand Sharma
has been examined as PW19 who deposed
about receipt of the information through
Central Intelligence Agency in the last week
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of December 2001. He testified that on
receipt of this information, a raiding party
was formed and raids were conducted at
different places in Delhi. He further testified
that on 14/1/02 he received a specificinformation through informer in his office at
Lodhi Colony that some militants of LeT
were staying at Karan Hostel Kotla
Mubarakpur and were having explosive
substance and hawala money regarding
which he made DD entry vide DD No. 12
Ex.PW19/A but to maintain secrecy he did
not mention the correct address and name
and mentioned only South Delhi. It is
stated that on this information he alongwith
SI Sanjay Dutt, SI Govind Sharma, SI
Hridaybhushan, SI Sushil, ASI Anil Tyagi
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and other staff reached Gyani Market, Kotla
Mubarakpur at 1:30pm where the informer
took him to Karan Hostel and showed him
the place. He was further informed by the
informer that there were four militantsstaying at Room No. 3 of Karan Hostel. He
got this news confirmed and came to know
that while two were still inside the room
the other two had gone out. As such it was
decided to wait for the other two accused
persons and to keep watch around the
hostel. He further stated that he called the
owner of Karan Hostel namely Ram Kumar
examined as PW15 by the prosecution and
made enquiries from him who told that one
Bilal used to live in Room No. 3 and for
few days three more boys were staying with
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him. At this he deployed his staff at
different places around Karan Hostel to keep
a watch and PW Ram Kumar was also with
him. At about 8pm two Kashmiri boys
holding bag in their right hand came infront of Karan Hostel who were identified
by Ram Kumar as the same boys who were
living in the room with Bilal. They were
apprehended and immediately room No.3
was raided from where the other two
occupants of the room were apprehended.
He stated that the two persons apprehended
outside were accused Mohd. Afsal and Adil
present in court and they were taken
alongwith their bags inside Room no. 3 of
Karan Hostel. The bag in the hand of
accused Afsal was checked and was found
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containing Rs. 5 lakh in cash and 2.280 kg
of RDX and two detonators . Similarly , the
bag of accused Adil was checked and was
found containing Rs. 5 lakhs cash, 2 kg RDX
and detonators.Regarding accused Bilal and Ansar who
were apprehended from inside the room ,
he stated that during their interrogation
they disclosed that there were two bags
lying under the bed of the room which
were also taken out and checked. One bag
was found containing Rs. 14 lakhs cash and
3kg 900 gms of white explosive whereas the
other bag was containing Rs. 10.90 lakhs. He
further testified that all these articles were
seized vide seizure memo Ex.PW8/A & 8/B
respectively by SI Govind Sharma.
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The perusal of seizure memos shows
that the case property recovered from the
possession of accused Mohd. Afsal Kumhar
and Adil Nazir Keen was seized vide seizure
memo Ex.PW8/A and the case propertyrecovered from the accused Ansar Ahmed
Dar and Bilal Ahmed Meer was seized vide
seizure memo Ex.PW8/B. The witness
correctly identified the case property in the
court as recovered from each of the accused.
He testified that 10 gms sample was taken
out from the RDX recovered from the bags
of accused Mohd Afsal, Adil respectively and
10gms sample was taken out of the
explosive material recovered from green
colour bag Ex.P14 from under the bed in the
room. He further testified that the samples
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and remaining explosives were sealed
separately by SI Govind Sharma, form CFSL
was filled and rukka was sent by SI Govind
Sharma for registration of the case.
Thereafter further investigation was handedover to SI Sharad Kohli who was called
from the office. He testified that all the
proceedings and raid was conducted under
his supervision and all the four accused
were arrested in his presence at the spot.
During cross examination the witness
denied the suggestion that the accused were
lifted from Karan Hostel on 2/1/02 and were
kept in illegal detention throughout at
Special Cell. He also denied that no
recovery was effected from the accused
persons on 14/1/02 or at their instance. He
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further stated during cross examination that
PW Ram Kumar the owner of Karan Hostel
remained present with him throughout the
raid and all the recoveries were made in his
presence. He denied the suggestion that atthe time of raid large number of people had
collected at the spot.
(iv) PW 8 SI Govind Sharma was
member of the raiding party in whose
presence all the four accused were arrested
and recovery was effected form their
possession. He deposed on the lines of
PW19 Inspt. Mohanchand Sharma. He
identified the accused persons correctly in
the court and the case property recovered
from their possession. He also testified that
the case property was sealed with the seal
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of GS and after use the seal was handed
over to SI Sanjay Dutt. He further deposed
that he prepared rukka Ex.PW8/C and sent
the same through ASI Anil Tyagi for
registration of the case. He stated that SISharad Kohli had reached the spot since he
was called there for further investigation. It
is further testified that SI Sharad Kohli at
his pointing out prepared siteplan
Ex.PW8/DA of the place of recoveries and
their arrest and further investigation was
done by SI Sharad Kohli. He further testified
that on 13/3/02 he had again gone to the
spot ie. Karan Hostel Room No. 3 alongwith
ACP Rajbir Singh which was got opened
after calling its owner and the articles lying
there were seized vide memo Ex.PW8/D.
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The perusal of the memo shows that it is
bearing the signatures of PW15 Ram Kumar,
PW8 Govind Sharma and PW18 ACP Rajbir.
During cross examination the witness
admitted that no identification mark wasput on the currency notes recovered from
the accused persons nor any marking was
made on the wrappers or slips present on
the currency notes nor any mark was put
on the polythene bag. The witness clarified
that currency notes were immediately
sealed. He admitted that the hostel from
where the accused was apprehended the
particulars of other occupants of the rooms
in the hostel were not ascertained. The
witness could not tell as to who was the
owner of H.No. 1804/2 shown in the siteplan
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or who was living in H. No. 1804/4 & 7.
Regarding plot No. 1804 he testified that it
was a vacant plot. He was also cross
examined regarding the surroundings of
Kotla Mubarakpur and the witness admittedthat there are several shops in Defence
Colony and South Extn adjoining Kotla
Mubarakpur but none from there were
called for joining the investigation. The
witness further stated in cross examination
that he remained at the spot till 4am and
till that time no other senior officer came to
the spot except the team members who
were already there and Mr. Sharad Kohli.
He stated that ASI Anil Tyagi had left the
spot for registration of the case. He also
stated that one team member had also left
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the spot during this period to collect
weights and balances and weights and
balances were brought from the office. He
denied the suggestion that accused were
apprehended from Karan Hostel on 2/1/02.He also denied that the siteplan Ex.PW8/DA
was incorrect or that nothing was recovered
from the possession of accused persons or
that the explosive substance was planted
upon them. He also denied the suggestion
that accused persons were made to sign
blank papers under coercion.
(v) PW12 SI Sanjay Dutt has deposed
on the lines of PW19 Inspt. Mohan Chand
Sharma and PW8 SI Govind Sharma
regarding secret information, the
apprehension of the accused persons and
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handed over to SI Sanjay Dutt.
(vii) PW15 Ram Kumar is the owner of
Karan Hostel situated at 1804/2 Kotla
Mubarakpur where accused Bilal was staying
in R. No. 3 on rent. He testified thatsometime in January 2002 at about 2 /
2:30pm one person came to him and
enquired if a boy namely Bilal was living in
his hostel and he answered in the
affirmative. Thereafter at about 9 /9:30pm
the same person again came back and
introduced himself as from police and asked
him to show as to who were the persons
living in that room. He accompanied him
who called more police officials who were
10-12 in number. He testified that at about
11pm they went to the room of Bilal and he
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got the room opened where four boys were
sitting. Out of them one was accused Bilal
and three more persons were there who
were seen by him only on that day. He
stated that for this reason he was not ableto identify them. Further all the police
officials went inside the room and for about
2 hrs conducted proceedings inside the room
and wrote something. Thereafter police
took all the four boys with them. He stated
that at that time he was outside the room
and did not care what was recovered from
the accused persons. This witness was
declared hostile by the prosecution with the
permission of the court since he was found
resiling from his previous statement. During
cross examination he testified, he was not
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sure if police had come to him on 14/1/02
and stated that he only remembered it was
in January 2002.
He was put a specific question as
follows:Ques. It is put to you that Inspt.
Mohanchand Sharma had come to you on
14/1/02 at about 2pm and enquired from
you if some Kashmiris were living in your
hostel and you informed that Bilal was your
tenant and three more Kashmiris were
staying with him?
To the aforesaid question the witness
gave the following answer :
''I had told that Bilal was my tenant
and other Kashmiris used to visit him.''
The perusal of his statement shows that
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he did not answer the suggestion that Inspt.
Mohanchand Sharma had come to him on
14/1/02 at about 2pm. As such it is
presumed to be admitted by him that Inspt.
Mohanchand Sharma had come to him on14/1/02 at about 2pm and had made
enquiries about accused Bilal and some
Kashmiris.
This witness denied the suggestion that
his statement was recorded on 15/1/02 by
Inspt. Sharad Kohli. He was confronted with
his statement Mark A recorded U/s 161
Cr.PC where he had stated that he had told
Inspt. Mohanchand Sharma that one Bilal
and one more boy were present in the
room after he verified the same and that he
also told the police that while two boys
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were inside the room , two other Kashmiris
had gone out. He admitted the suggestion
of the prosecution to be correct that police
had started keeping watch around the hostel
from 2:30pm to 3pm and had spread aroundthe hostel. He also admitted it to be correct
that he remained with those police persons
but only for sometime and thereafter he
went to his house. However he denied the
suggestion that he had told the police at
about 8pm that two boys were seen coming
towards the hostel whose names were
lateron revealed as Mohd. Afsal Kumhar and
Adil Nazir Keen. He stated that he did not
see them carrying bags and he volunteered
that he saw all of them inside the room. He
was confronted with his statement Mark A
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where these fact finds mention. He
admitted his signatures on the seizure
memos i.e Ex.PW8/A & 8/B respectively
regarding the recoveries effected from the
possession of accused persons but heclaimed that he signed them without
reading. He was again put a specific
question by the Ld. Prosecutor that from all
the four accused persons bags were
recovered and from the bags RDX,
detonators and currency notes were
recovered and sealed in his presence. He
denied any recovery in his presence and
stated that he was standing outside the
room but was told by the police about
recovery of 34-35 lakhs of rupees and RDX
from the accused persons. He was
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confronted with the statement Mark A
where he stated before the police that
recoveries were made by the police in his
presence and were also sealed in his
presence. He admitted that on 13/3/02 policeagain came to the hostel and collected
articles lying in the room and seized the
same vide seizure memo Ex.Pw8/D. He
admitted that he had produced before the
police photocopy of form which he filled for
verification of the tenant and copy of
telephone bill to the police which were
seized vide seizure memo Ex.PW8/DB. It is
taken note of that this time he stated that
he had signed these memos after reading,
whereas regarding seizure memos Ex.PW8/A
and Ex.PW8/B regarding seizure of huge
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quantity of RDX, detonators and cash he
stated he did not read the contents of
seizure memos which is quite unnatural
conduct. He could not admit or deny if red
colour, maroon colour, green and yellowcolour bags were taken away by the police
on that day after they were recovered from
accused persons with the contents. In other
words the witness has not denied that these
bags were found in the room No. 3 of the
hostel and they were containing any
incriminating material.
During cross examination by the
defence counsel he stated that he do not
remember if police had arrested accused
persons on 2/1/02 nor could he say it was
first week of January but he only
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remembered it was in January 2002.
(viii) PW17 SI Sharad Kohli had taken
over the investigation from SI Govind
Sharma after rukka Ex.PW8/C was sent to
the PS for registration of the case. Hetestified that on 14/1/02 he was intimated
by Inspt. Mohanchand Sharma at about
11pm in the night to come at Karan Hostel,
Kotla Mubarakpur. He reached there at
about 11:20pm and found team of Special
Cell already there at Kotla Mubarakpur. He
stated that SI Govind Sharma had almost
prepared rukka at that time and sent ASI
Anil Tyagi with rukka to PS KM Pur for
registration of the case. SI Govind Sharma
handed over four bags , 8 sealed parcels,
two forms CFSL, two sample seals, two
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seizure memos and a total cash of Rs. 34.9
lakhs as mentioned in seizure memos
Ex.PW8/A & B respectively and also handed
over to him the custody of four accused
present in court namely Afsal, Ansar, Adiland Bilal. He testified that all the seized
case property and the accused persons were
handed over to him in R.No. 3 of Karan
Hostel, 1804/2, KM Pur and SI Govind
Sharma had explained to him the entire
circumstances. He further stated that
siteplan Ex.PW8/DA was prepared by him at
the instance of SI Govind Sharma. At about
1:15am ASI Anil Tyagi came back to the spot
after registration of the case alongwith copy
of FIR and rukka. He recorded the
statement of public witness Ram Kumar the
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owner of Karan Hostel at the spot . He also
interrogated the accused persons and
formally arrested them vide arrest memos,
body inspection memos and personal search
memos Ex.PW17/1 to 12 bearing hissignatures and of SI Hridaybhushan and ASI
Anil Tyagi at point A, B & C respectively.
He further testified that he recovered one
mobile phone ie a Motorola Handset from
inside the room at the instance of accused
Adil Nazir Keen and he seized the same
alongwith warranty card and cash memo
Ex.PW16/E & G respectively vide recovery
memo Ex.Pw16/A. He testified thereafter he
took the case property and the accused
persons alongwith the team of Spl Cell to
PS KM Pur where the case property was
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deposited in the malkhana and then accused
persons were taken to Spl Cell Lodhi Colony
and were interrogated in detail. He further
stated that he recorded their disclosure
statements Ex.PW16/B to E. He alsorecorded the statement of the police officers
who were members of the team and
witnesses of recovery. It is stated that
thereafter the provisions of POTO were
invoked and further investigation was
handed over to ACP Rajbir. He further
testified that on 15/1/02 the four accused
persons were produced in the court and
their police remand was sought by ACP
Rajbir and on that day he joined the
investigation. He further testified that
accused Afsal led them to Fatehpuri Dau
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Bazar in Old Delhi in the office of M.
Ramesh and Company situated at Ist Floor
and pointed out to accused Dilip Bhai who
was sitting in the office vide pointing out
memo Ex.PW17/A and told that he hadtaken three consignments of Hawala Money
from Dilip Bhai totaling to Rs. 28.25 lakhs.
He further testified that ACP Rajbir Singh
seized three registers Ex. P25 to P27, one
cash receipt book Ex.P28 vide memo
Ex.PW17/B and one bag Ex.P23 containing
Rs. 4.60 lakhs collectively Ex.P24 hawala
money vide memo Ex.PW 17/C, from the
aforesaid office. He further stated that SI
Hridaybhushan was also with them at that
time and had signed the memos. He
testified that accused Dilip was arrested and
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brought to Special Cell where he was
interrogated and his disclosure statement
Ex.PW17/D was recorded.
B. Confessional Statements:
(i) PW18 ACP Rajbir Singh, Spl Celltook over the investigation of the present
case after invoking the provisions of POTO.
He testified that on 22/1/02 he requested
DCP Special Cell for recording confessional
statement of Mohd. Afsal and Adil Nazir
Keen as they volunteered to make the same.
DCP gave him the date for recording
confessional statements of accused persons
on 24/1/02 at 5pm. On 24/1/02 he made
another application for recording
confessional statement of Bilal and Ansar as
they too had volunteered to make
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confessional statements. It is testified that he
produced accused Mohd Afsal at the office
of ACP Southern Range where DCP Sh.
Balaji Srivastava had come for recording the
confessional statements and after hisstatement was recorded he produced
accused Adil Nazir Keen before the DCP for
recording his confessional statement.
Regarding accused Bilal and Ansar he
testified that they were also produced before
DCP but they refused to make confessional
statements before DCP. He further testified
that he applied for copy of confessional
statement but his request was declined. It is
testified that on 25/1/02 he produced
accused Mohd. Afsal and Adil Nazir Keen
before Sh. VK Maheshwari the then ACMM
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New Delhi Courts at Patiala House for
confirmation of their confessional statements
alongwith their confessional statements
recorded by DCP in a sealed cover. IT is
stated that he moved application Ex.PW5/Fbefore the ACMM for recording confirmation
and the statements of the accused persons
were recorded by the ACMM. During cross
examination the witness admitted that the
police remand of both the accused was to
expire on 25/1/02. He further testified that
he had produced both the accused Mohd .
Afsal and Adil Nazir Keen in the afternoon
around 2pm after making request to security
personnels to allow them to remain in the
premises and requesting the ACMM to
remain there to produce the accused
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persons before him since the police remand
was expiring on the same day. It is testified
that Ld. ACMM recorded the statement of
accused persons and proceedings in his
chamber.(ii) The confessional statement of
accused Mohd. Afsal Ex.PW1/A and Mohd.
Adil Ex. PW1/B & PW1/C recorded in two
parts U/s 32 POTA were recorded by PW1
Balaji Srivastava the then DCP Special
Branch, Delhi. He testified that on 22/1/02
ACP Rajbir had sent a request informing
that two accused persons namely Mohd.
Afsal and Adil had expressed their
willingness to make confessional statement
before DCP, so he fixed the date 24/1/02 for
recording the confessional statement. Both
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the accused were produced before him by
the IO at the office of DCP Southern Range,
Operation Cell, Spl Cell, Lodhi Colony where
he had told the IO to produce the accused
Mohd Afsal before him at 5pm. It is statedthat he asked Mohd. Afsal if he had
expressed his willingness to make
confessional statement to which he replied
in positive. Thereafter he asked him whether
he was under any threat, inducement or
pressure which he denied. He testified that
he had put these questions to the accused
after sending IO out of the room. However
his PA ASI Steno Rajeev Sharma was in his
room. He testified that he asked the accused
as to in which language he would like to
make the statement to which he replied that
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he was conversant with English language
and that his statement was recorded directly
on the computer. He stated that he had
given the warning to the accused that he
was not bound to make any confessionalstatement and that if he made any such
confession, the same could be read against
him in evidence. The accused however
showed his willingness to make a
confessional statement. As such he recorded
the confessional statement of the accused
after satisfying himself that the accused was
making the confessional statement
voluntarily. He further testified that the
recording of confessional statement
completed at 6:45pm which was read by the
accused on the computer itself. Thereafter
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print out of the same was taken out which
was again read by the accused who signed
the same on all pages and he (the witness)
signed it on the last page. HE further
testified that after recording the confessionalstatement he called the IO inside the room
and the accused was sent outside and he
told the IO to bring the second accused. He
further testified that accused Adil was then
produced before him and IO was asked to
leave the room. He asked Adil if he had
expressed his willingness to make
confessional statement to which he replied
in positive. He stated that accused Adil too
was given the warning that he was not
bound to make any confessional statement
and that if he made any such confession,
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the same could be read against him in
evidence but he still wanted to make a
confessional statement. He was also asked if
he was under any pressure, threat or
inducement to which he stated that he wasnot under any pressure, threat or
inducement. The accused was asked as to in
which language he wanted to make the
confessional statement to which he replied
that he could read, write, speak and
understand English language. He further
testified that the confessional statement of
the accused was recorded on computer and
the subsequent endorsement was also
recorded on the computer. He further stated
that accused was seeing what was being
recorded in the computer and thereafter a
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print out of the same was taken out which
was read by the accused who signed the
same on all pages and that the same was
signed by him on the last page. After
recording the confessional statements , hesealed them in an envelop Ex.PW1/D and
then were put in a bigger envelope
Ex.PW1/E and sealed with his seal and sent
the same to ACMM Patiala House through
IO.
During cross examination he testified
that his office was at PHQ IP Estate during
those days. He stated that he had himself
told the IO that he would come to Lodhi
Road for recording the confessional
statements. He admitted that when the
accused persons were produced before him
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on 24/1/02 he did not adjourn the
proceedings for recording confession to give
any time to the accused persons to think
over. He also testified that the confessional
statement was recorded in the computeravailable in the ACP office on hard disk and
it was not saved and it was deleted after
taking out print. He denied for want of
knowledge if accused persons had made any
disclosure statement before the IO before
they were produced before him. He also
denied that the confessional statement is
only reproduction of the disclosure
statement of accused persons. He further
testified in cross that the confession was
recorded as per the narration made by the
accused and he had not put any question to
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the accused but they themselves narrated
their entire statement.
(iii) PW5 Sh. VK Maheshwari the then
ACMM Patiala House had conducted the
confirmation proceedings regarding theconfessional statements Ex.PW1/A , PW1/B &
PW1/C respectively made by accused Mohd.
Afsal and Adil respectively before PW1 Sh.
Balaji Srivastava the then DCP Spl Branch,
Delhi. PW5 Mr. Maheshwari testified that on
25/1/02 while he was working as ACMM in
Patiala House Courts, ACP Rajbir Singh the
IO of the case produced both these accused
before him for confirmation of their
statements made by them on 24/1/02 before
DCP Sh. Balaji Srivastava. He testified that
their confessional statements were produced
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before him in sealed parcel which were
taken out and he had put his initials on
each page. He proved that the confessional
statements of both accused Mohd Afsal
Ex.PW1/A and Adil Ex.PW1/B & PW1/C werebearing his signatures at point E, F & G
respectively . He further testified that in the
proceeding sheet Ex.PW5/A he recorded the
enquiries made from the accused persons
regarding the confession and thereafter he
recorded their statements Ex.PW5/B & C in
his chamber. He further stated that the
accused persons were identified by the IO.
Mr. Maheshwari was cross examined at
length on behalf of both the accused Mohd.
Afsal and Adil. He admitted that on 25/1/02
the day when the accused persons were
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produced before him for confirmation of
their confessional statements, the security
personnels had taken the security of Patiala
House Courts in view of Republic Day
Parade on the next day, however heclarified that Judicial Officers were not
turned out of their chambers and courts. He
denied the suggestion that the entire Patiala
House Complex including his court were
sealed by security personnels. Regarding the
identity of both the accused the witness
stated that he cannot identified them as
they were not personally known to him and
were identified before him by the IO and he
had only seen them at the time of
proceedings and not thereafter. He denied
the suggestion that accused were not
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produced before him or he recorded the
proceedings at the instance of IO in routine
manner or that the accused persons did not
sign in his presence. He also stated in his
cross examination that both the accusedwere well versed with English language and
were answering his queries in English
language and were also understanding Hindi
language.
C. RECOVERY OF MOBILE PHONE
AT THE INSTANCE OF ACCUSED ADIL
NAZIR KEEN:
(i) The prosecution has alleged that
a mobile phone bearing No. 9811336055 was
recovered from the room of accused Bilal
lying on a table at the instance of accused
Adil Nazir Keen. PW17 SI Sharad Kohli and
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PW16 ASI Anil Tyagi deposed about
recovery of mobile and its seizure vide
seizure memo Ex.PW16/A.
(ii) PW6 Rajeev Pandit Nodal Officer
Sterling Cellular Ltd testified that hereceived letter Ex.PW6/A in his office. The
said letter is written by ACP Rajbir Singh
the IO of the case addressed to the Nodal
Officer, Essar Telephone, Okhla New Delhi
seeking details of the mobile No. 9811336055
since activation alongwith the details
provided by the customer while purchasing
the said mobile phone and sim card. The
witness stated that the said letter was
replied vide call details Ex.PW6/B and the
cell ID 11721 as per the classified list was of
Kotla Mubarakpur area. The perusal of call
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details Ex.PW6/B shows that two calls were
made from the aforesaid telephone one
call was made on 7/1/02 to telephone No.
0113988310 Cell ID No. 11721 IMEI No.
449269417365750 and other call is receivedon the above mobile number from the
telephone number 0113988310 with the same
Cell ID and IMEI number on 8/1/02 .
During cross examination the witness
testified that telephone No. 9811336055 could
have been activated on the same day or
before 1/1/02. He could not say specifically
that the date of activation was 1/1/02 or
not . He also could not state if the above
phone was against cash card or against sim
card as he stated that for the same he
would have to check the official records. He
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admitted that for supplying sim card
customers name and his proof of residence
is asked for. However since the witness was
working on the administrative side so he
could not tell whether the photograph ofthe customer is asked for or not. Similarly
he could not say if verification of signatures
or of customer is also asked for by the sales
department or not.
(iii) PW13 Surender Singh telephone
operator Tis Hazari Exchange, produced the
record pertaining to telephone No. 3988310
and 3957693. He stated that telephone No.
3988310 was installed in the name of
Gopaljee Monaljee Barot at 4482/84 , First
Floor, Dau Bazaar, Cloth Market, Fatehpuri
and other telephone No. 3957693 is installed
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in the same address in the name of GM
Barot.
D. SANCTION:
(i) PW2 Sh. GL Meena, Dy. Secretary
Home proved the sanction U/s 196 Cr.PCaccorded by LG for prosecution of the
accused persons U/s 121A , 122, 123, 121 &
121B IPC as well as sanction under POTO
U/s 3,4,5, 20,21 & 22 POTO as Ex.PW2/A &
PW2/B respectively.
(ii) PW7 DCP TN Mohan, Headquarter
proved the sanction order Ex.PW7/A
accorded by the Commissioner of Police for
prosecution of all the accused U/s 4 & 5
Explosive Substances Act which was
communicated by him to the Court. During
cross examination he denied the suggestion
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that sanction was accorded by the CP
without application of mind or he signed
the draft sanction.
E. EXPERTS OPINION:
(i) PW17 SI Sharad Kohli testified thaton 25/1/02 he had taken the exhibits five in
number i.e 3 samples and two parcels of
detonators from MHC(M) PS KM Pur vide
RC No. 3/21 and two CFSL forms and two
sample seals and deposited the same to
CFSL CGO Complex Lodhi Road. He testified
that so long the case property remained in
his possession the same was not tampered
with. During cross examination the above
referred testimony of PW17 was not touched
at all, as such it has remained unshattered
and is deemed to be admitted by the
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accused persons.
(ii) PW11 HC Pritam Singh who was
working as MHC(M) at PS Kotla Mubarakpur
on 15/1/02 testified that on that day SI
Govind Sharma had deposited five sealedparcels containing case property of the case
in the malkhana which was entered at S.No.
1061 and proved the copy of entry as
Ex.PW11/A. He further testified that SI
Sharad Kohli had deposited on the same
day mobile phone, cash and personal search
articles of the accused persons which he
entered at S.No. 1062 and the photocopy of
the entry is Ex.PW11/B.
He further testified that he sent five
sealed pulandas deposited vide entry No.
1061 to FSL CGO Complex on 25/1/02
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through SI Sharad Kohli.
During cross examination he testified
that form CFSL and sample seal were also
given to him and as mentioned in the road
certificate, sample seal and form CFSL weresent alongwith parcels. Regarding the mobile
phone he testified that it was in a sealed
cover but did not know that it was
containing sim card. He stated that sim card
was not given to him separately.
(iii) PW3 NB Bardhan, Sr. Scientific
Officer, examined the case property
contained in a sealed parcel consisting of
lump of white powdery material which on
examination was found containing potassium
chlorate and could form a component of
Improvised Explosive material. The witness
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proved the report as Ex.PW3/A. The
aforesaid witness was not cross examined by
any of the accused as such the report
Ex.PW3/A given by the witness after
conducting lab test on the materialcontained in parcel S3 is deemed to be
admitted as correct.
(iv) PW4 AR Arora Sr. Scientific Officer
cum Chemical Analyser to Govt of India,
CFSL CBI examined the contents of four
sealed parcels sealed with the seal of GS
and gave his report as Ex.PW4/A. He
testified that he conducted the Lab test on
the contents of these parcels. He stated that
parcel marked S1 and S2 contained brown
colour putti like material about 10 gms in
weight each, whereas parcel No. D1 & D2
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contained two electric detonators each
having white electric wire. He stated that on
conducting the lab test he found that all the
electronic detonators were live. Regarding
the contents of parcel No. S1 & S2 hetestified that on physico chemical
examination the presence of RDX PETN
Ammonium nitrate basis and mixture of
high explosive was confirmed in their
contents. He further testified that the
contents of all the parcels were explosive
substance as defined in the Explosive Act
1908. He was cross examined only on behalf
of accused Adil and Mohd Afsal. However,
nothing material could be extracted during
his cross examination. He was not even
suggested that he did not conduct any test
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on the contents of the parcels or that his
report is incorrect.
F. FIR
(i) PW9 HC Surat Singh had recorded
formal FIR No. 18/02 PS Kotla MubarakpurEx.PW9/A on the basis of rukka sent by SI
Govind Sharma through ASI Anil Tyagi at
11:40pm on 14/1/02.
During cross examination this witness
stated that it took him around 1 hr in
writing the FIR . Regarding Col. No. 7 in the
FIR he stated that it was left unfilled
inadvertently.
G. TENANT VERIFICATION:
PW10 HC Babulal produced the
stranger roll register containing the
information of the strangers found in the
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street or of the tenants occupying premises
in the area as furnished by the Beat
Constable. He testified that in the relevant
entry in the register Ex.PW10/A information
received from Beat Constable on 26/12/01was recorded regarding accused Bilal
Ahmed.
H. PW14 Mohan Madhav Kulkarni,
Police Inspector, CID Crime Branch, Bombay
deposed about furnishing the information
regarding Raju Bhai who was discharged by
the POTA Review committee on 10/5/05 and
Mehboob Karim Merchant who was
discharged by the Court vide order dtd.
20/4/02, to the IO of this case, as such the
testimony of this witness is of no relevance
qua the present accused.
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I. PW18 ACP Rajbir Singh took over
the investigation of the case after the
provisions of POTA were invoked. He
testified that on 15/1/02 he was working as
ACP Special Cell, Lodhi Colony when SISharad Kohli produced all the four accused
namely Mohd Afsal, Adil Nazir, Bilal Ahmed
and Nisar Ahmed Dar before him. After
going through the disclosure statements
made by the accused persons and recovery
memos, he came to the conclusion that they
were members of a terrorist outfit LeT and
had intentions to create chaos and disturb
the government activities on the Republic
Day and that they were liable to be booked
under POTO so the provisions of POTO
were invoked and investigation was taken
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over by him. It is testified that he produced
both the accused in the Special Court
designated under POTO and obtained their
police remand. Thereafter at the instance of
accused Mohd Afsal, he alongwith SI SharadKohli, SI Hridaybhushan and other staff
went to the office of M Ramesh and
Company where he pointed out towards
accused Dilip Bhai vide pointing out memo
Ex.PW17/A and made enquiries from Dilip
Bhai who told him that he had received
instructions from Bombay Office of M.
Ramesh & Co. from Rajesh Khoda Prajapati
the Manager of the Company to give money
to accused Mohd Afsal. He further informed
that money to the tune of Rs. 28.25 lakhs
was received by him from Bombay which
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was given to accused Mohd. Afsal in three
installments and that at the time of taking
money accused Mohd Afsal had given his
code name as Rashid. He further disclosed
that he had received another hawalapayment of Rs. 4.6 lakhs from Bombay office
. The said amount was lying in the black
bag in the office of Dilip Bhai and was
seized vide seizure memo Ex.PW17/C.
Besides three registers and one bill book
was also seized from his office vide memo
Ex.PW17/D. He was arrested and his
personal search was conducted vide memo
Ex.PW17/E and his arrest cum inspection
memo Ex.PW17/DA was prepared. His
disclosure statement was recorded. Police
team was sent to Bombay for making
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enquiries from Rajesh Khoda Bhai Prajapati.
Accused Rajesh Khoda and Mehboob Karim
were arrested. They were interrogated and
their disclosure statements were recorded.
He got recorded the confessional statementsof accused Mohd Afsal and Adil Nazir Keen
from the then DCP Sh. Balaji Srivastava and
also produced the accused persons before
the then ACMM Sh. VK Maheshwari for
confirmation of the disclosure statements.
Besides he collected the details of the
telephone numbers 3988310 and 3957693 and
the call details of mobile No. 9811336055
recovered from Karan Hostel. On 13/3/02 he
seized the belongings of the accused persons
lying in Room No. 3, Karan Hostel and copy
of verification form of tenant and one
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tenant bill of phone No. 4655730 from PW
Ram Kumar the owner of the hostel. He
also collected the relevant entries regarding
verification of tenants from MHC(R) KM Pur
and the report CFSL. Thereafter he appliedfor grant of sanction for prosecution of
accused persons under Explosive Substances,
Act, POTA and U/s 121A/122 and other
provisions of IPC U/s 196 Cr.PC , obtained
sanction, recorded the statement of the
witnesses, made efforts to arrest M. Ramesh
Kumar, Sultan Karim Merchant, Nisar and
Abu Amaar the names disclosed by the
accused persons in their confessional and
disclosure statements.
17. Statement of the accused persons
were recorded U/s 313 Cr.PC whereby they
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have denied the incriminating evidence
against them and claimed to have been
falsely implicated. It is claimed that they
were arrested on 2/1/02 and that the case
property was planted upon them. AccusedMohd Afsal and Adil denied having made
any confessional statement before DCP
Special Cell.
18. The accused persons have
produced in defence 15 witnesses.
(i) DW1 Arvind Barot who was an
employee of M. Ramesh & Co. in Delhi as a
delivery boy and deposed about the raid
conducted by the Government officials in
the office on 15/1/02 at about 5:30/6pm. He
stated that the accused persons were not
accompanying those government officials at
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the time of raid. To the same effect is the
defence witness Shailesh examined as DW2.
(ii) Dw3 Bhaqtawar Zaman the brother
of accused Ansar deposed that accused
Ansar is his younger brother and he alsoknew accused Bilal being his neighbourer
and accused Adil being friend of accused
Ansar. He stated that he came to know of
accused Mohd Afsal only after this case. He
deposed about the rivalry his family had
with the militants. He testified that upto
April 2002 he was working in Ludhiana in a
private company Gazibo Industries Ltd at
Ludhiana. On 31/12/01 at night he received
a call from his brother Ansar that he had
come to Delhi for business and for
reconciliation of accounts and that he would
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spend 2-3 days in Delhi and would visit him
if possible. On 3/1/02 he gave a telephone
call at his house in Anantnag and enquired
about Ansar and he was told that Ansar had
not reached home. On 4/1/02 he madetelephone call at Delhi to one Motilal Nathu
and Mansoor employee of Goodluck
Roadways who told him that Ansar had
visited them on 1/1/02 and 2/1/02 and
perhaps had left for home thereafter. He
again gave a call to his house at Anantnag
on 5/1/02 and came to know that one
Mohd Ashnaf Sheikh had informed his
Fufi's house in Anantnag that Bilal and
Ansar alongwith two more boys were picked
up by the police on 2/1/02 at night and he
had been trying to contact them. He further
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stated that his family gave him telephone
number Bilal and told him that Ansar used
to stay with Bilal and at their instance he
gave a call at Karan Hostel to Bilal's room
but he was not given any satisfactory replyand was told that Bilal had gone
somewhere so he disconnected the phone.
Thereafter he contacted Motilal but he too
could not give any information regarding
accused Bilal and Ansar. So he suggested his
family that he should visit Delhi but he was
prevented by them on account of incident of
attack on Parliament on 13/12/01 and the
coming celebrations of 26th January. On
11/1/02 he learnt from his family that it was
confirmed that accused Bilal and others
were arrested by police in Delhi on 2/1/02.
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During cross examination this witness
admitted that he made no complaint in
writing personally to anyone about picking
up of Ansar and Bilal since his family was
making efforts. He stated that he used totalk to accused Bilal at Karan Hostel
sometimes and he was having his telephone
number.
(iii) DW4 Ghulam Hasan Butt the
neighbourer of accused Bilal and
acquaintance of accused Ansar deposed that
he was informed by Bilal's elder brother on
4/1/02 that Bilal was arrested by the police
on 2/1/02. He further testified that in this
regard he alongwith others met Chairman
Legislative Council Sh. AR Dar on 11/1/02
who assured them that he would take
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concrete steps in this regard. He further
stated that he came to Delhi on 21/1/02
after learning from TV about the arrest of
accused persons.
In cross examination he admitted thatthey did not come to Delhi after coming to
know on 4/1/02 that the accused were
apprehended.
(iv)DW5 Ghulam Mohd Wani to whom both
the accused Bilal and Ansar were known,
also deposed on the lines of DW4 that on
4/1/02 he came to know about the arrest
of accused Bilal and Ansar on 2/1/02. He
further deposed that on 11/1/02 he
alongwith other Biradari people met the
Chairman of Legislative assembly in this
regard.
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During cross examination this witness
stated that no written representation was
given to any authority about theapprehension of accused persons on 2/1/02.
He further stated that some relative of Bilal
studying in college had given a call to his
Phufi and from there the information was
given to the family of Bilal that they were
arrested by the police. This witness could
not give the name of the person who had
given the telephone call nor from where
Bilal and Ansar were lifted by the police.
(v) DW6 Gulam Mohd Sheikh claimed
himself to be neighbourer of accused Ansar
and that accused Bilal is his co-villager. He
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stated that he learnt on 4/1/02 about the
arrest of accused Ansar by Delhi police on
2/1/02.
During cross examination this witness
could not depose as to where accused Ansarused to stay in Delhi or when he left for
Delhi. He admitted that he made no written
representation to anyone regarding their
arrest.
(vi) DW7 Arvind Bhai Prajapati, DW8
Bharat Kumar and DW9 Babu Bhai are
defence witnesses relating to the firm M .
Ramesh & Co and are not relevant qua the
present accused persons.
(vii) DW Motilal Nathu has been
wrongly mentioned as DW9 and be read as
DW9A. He deposed that he knew accused
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Ansar Ahmed Dar for the past about 2 years
as he had business dealings with him. He
stated that he had last met him on 1/1/02
alongwith two persons and told him that
they wanted to purchase packing materialand then they again met him on 2/1/02 and
he was told that the two persons
accompanying Ansar Ahmed were to
purchase the packing material. During his
testimony he pointed out towards accused
Adil and Mohd Afsal as the two persons
who had accompanied Ansar. He stated
thereafter the accused did not meet him
and after 7-8 days he saw news on TV and
saw four persons including three of whom
had met him on 2/1/02 . He testified that in
between he had received a phone call from
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the house of Ansar when either his brother
or someone else had called him and
enquired about Ansar and he had told them
that he had left his place.
(viii) DW10 Hari Ram Nigam dealing inpacking material, to whom the accused
Ansar Ahmed Dar was introduced by DW9A
Motilal deposed that accused Ansar
alongwith others had come to him on
2/1/02 and asked him to give quotation for
packing material but he told him that they
should bring the sample of nature of
packing material wanted by them only
thereafter he could give the quotation. The
accused told him that they would come
later but after 2/1/02 accused Ansar did not
visit him.
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(ix) DW11 Bashir Ahmed Constable
with J & K police posted at PS Achabal
distt. Anantnag produced the copy of FIR
No. 02/2002 dtd. 9/1/02 registered with PS
Achabal U/s 302 IPC Ex.DW11/A attested bythe SHO alongwith letter Mark A. During
cross examination this witness admitted that
the copy of FIR was not attested by SHO
but ASI Ghulam Hussain Dar since SHO was
on leave and he also admitted that in the
FIR the name of either the deceased or the
accused is not mentioned.
(x) DW12 Ghulam Mohd Record
Keeper Home Department J & K , New
Secretariat, Srinagar produced the
summoned record i.e file No. Home/PB-
V/Misc./2002. He testified that the photocopy
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of letter of Chairman, J&K Legislative
Council is in the file which was Marked as
Ex.DW12/A.
During cross examination the witness
stated that letter was received in his officeon 16/1/02 through General Receipt but he
could not state the letter was delivered by
hand or came through post as the record
was maintained by a Clerk of General
Receipt in the register. However he did not
produce the aforesaid register. He also could
not state if the Chairman of Legislative
Council was in Jammu or Srinagar in
January 2002.
(xi) DW13 Sanjay Pandita Sr. Assistant
J & K Legislative Council testified that Sh.
Pravesh Diwan an IAS officer in Jammu was
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posted as Resident Commissioner, J & K
House, 5 Prithviraj Road, New Delhi and
that an official telephone bearing No.
4611506 was installed at Prithviraj Road. He
further testified that he could identify thesignatures of Ashfaq Ahmed Wani on
Ex.DW13/A at point X. However this witness
did not state as to who was Ashfaq Ahmed
Wani and the perusal of the document
Ex.DW13/A shows that it is a certificate
issued in respect of Letter No.
PO/HCM/759/LC-02 dtd. 14/1/04 addressed
to the then Hon'ble Chief Minister Jammu
and Kashmir and a certificate was issued to
the effect that this letter was issued from
the office of J&K Legislative Council
Secretariat , Srinagar/Jammu vide letter No.
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PO/HCM/893/LC-04 dtd. 20/8/04. Even the
name of Ashfaq Ahmed Wani is not
mentioned in the aforesaid certificate and it
is signed by Private Secretary to the
Chairman Legislative Council which areidentified at point X on Ex.DW13/A by the
witness to be of Ashfaq Wani.
This witness further testified that this
letter Ex.DW13/A was in respect of letter No.
PO/HCM/759/LC-02 dtd. 14/1/02. He further
stated that fax dtd. 14/1/02 is Ex.DW13/B
and that this copy was sent by Legislative
Council Chairman to the then Chief Minister
Sh. Farooq Abdullah of J & K at New Delhi
Kashmir House on 14/1/02 at 10:30am and
was received at New Delhi at 10:38am on
the same day vide receipt Ex.DW13/C. He
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further stated that the fax bears signatures
of Legislative council Chairman Abdul
Rashid Dar whereas receipt Ex.DW13/C was
bearing the signatures of PA to the
Chairman Legislative council at Point X2. Hefurther stated that the office maintains
dispatch register of the letter / fax. He
produced the extract of the dispatch register
as Ex.DW13/D and encircled the relevant
portion at point X3. He further stated that
on 11/1/02 on Friday parents of all the
accused from Kashmir came to the residence
of Chairman Legislative Council in the
afternoon and complained that their
children had been taken by Delhi Police.
During cross examination he admitted that
the letter / certificate Ex.DW13/A finds
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mention date as 14/1/04 and not as 14/1/02.
He further stated that a corrigendum
Ex.DW13/E was issued in the month of
September 2004. He admitted that he had
not verified the contents of these letterspersonally nor had any knowledge if
concerned authority gave reply to all these
letters. He admitted that reply of the
concerned authority is not on the official
record. He further clarified that parents of
Kashmiri boys came to Chairman in routine
as General Public and no official
investigation of the antecedents of the
accused were conducted by the Chairman.
(xii) The other witness examined in
defence is DW14 Abdul Rashid Dar, the
Chairman of Jammu & Kashmir Legislative
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Council since the year 2000. He testified
that on 11/1/02 the parents of accused
Mohd. Afsal, Adil Nazir and Bilal Ahmed
Mir as well as brother of Ansar Ahmed Dar
came to him and told him that aforesaidaccused had gone to Delhi on 30/12/01 and
that they were picked up by Delhi police on
2/1/02. He further testified that they were
anxious to know about the whereabouts of
the accused and requested him to help them
in tracing them. He stated that it was
Friday and that Saturday, Sunday were
Holidays, so he asked them to come on
Monday morning. On 14/1/02 they again
visited his residence at Jammu in the
morning and then he contacted the Chief
Minister of State who was in Delhi at that
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time and informed him about the incident.
The Chief Minister asked him to fax the
names and particulars of the accused
persons, so he instructed his PA to prepare
the fax message so that it would be readyby the time he reached his office. He
further stated that he reached the office at
9:30am, signed the fax and it was sent by
his Secretary. He identified his signatures on
the fax message Ex.DW13/B. It is further
stated that around 11am, he again spoke to
the Chief Minister who told him that he
had received the fax and would be coming
to Jammu in the evening, then he would let
him know about the matter. Further that
Chief Minister returned in the evening and
told him that he had taken up the matter
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with the Home Secretary and was told that
a case had been registered and the accused
would be produced in the court on the next
day.
During cross examination he admittedthat he did not personally verify as to
whether the accused persons had left for
Delhi on 30/12/01 and whether they were
actually picked up by the police on 2/1/02
and believed whatever the relatives of the
accused persons told him. He admitted that
he did not verify the antecedents of three
accused other than accused Mohd Afsal who
was a Joint Engineer and admitted that
they were not known to him personally. He
further stated that Chief Minister gave him
the impression that the accused persons
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were arrested on 14/1/02 and assured him
that the accused were alive and that was
their anxiety. He further stated that he had
no knowledge that the accused persons
were found in possession of huge quantityof RDX, huge sum of hawala money and
electronic detonators.
19. I have heard arguments from both
the parties who have also submitted written
arguments. I have gone through the written
submissions and the relevant material on
record carefully.
20. It is submitted by the defence
counsel that all the accused persons are
falsely implicated in the present case and
nothing incriminating was recovered from
their possession and has submitted that a
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fax dtd. 14/1/02 was sent by DW14 Abdul
Rashid Dar the then Chairman Jammu &
Kashmir Legislative Council to the then
Chief Minister of Jammu & Kashmir at Delhi
and deposed that the parents of accusedMohd Afsal, Adil Nazir, Bilal Ahmed and
brother of Ansar Ahmed came to him on
11/1/02 and informed him that the accused
persons were picked up by the police on
2/1/02 and they were anxious to know
about their whereabouts. It is submitted that
as per the testimony of this witness he
called the relatives of the accused persons
on Monday and they visited him on 14/1/02
in the morning. He contacted the Chief
Minister of J & K who was in Delhi at that
time and as desired by the Chief Minister
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he sent a fax Ex.DW13/B containing the
names and particulars of the accused
persons and that he personally spoke to the
Chief Minister who confirmed having
received the fax and told him that he wouldlet him know the status of the accused
persons by the evening and in the evening
he was informed by the Chief Minister that
the case was registered against the accused
persons. It is further submitted that DW13
Sanjay Pandita produced the original fax
message in the court, the fax copy of which
was sent to the Chief Minister and that he
also produced the dispatch register
maintained in the office to prove that the
fax message was sent to the Chief Minister.
It is further submitted that PW15RamKumar
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owner of the Karan Hostel also did not
support the version of the police as he
stated that all the four persons were present
in the room when the police picked them
up. It is submitted that on the other handthe case of the prosecution is that two
people were apprehended from the gate
while two people were apprehended from
Room No. 3 of Karan Hostel.
21. Regarding the siteplan Ex.PW8/DA
it is submitted that the entire case of the
prosecution is based on the allegation that
explosions and huge amount of cash was
recovered from 1804/2, Room No. 3 Karan
Hostel, Parsadi Gali, Kotla Mubarakpur and
that it is also the case of the prosecution
that SI Sharad Kohli PW17 had prepared the
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siteplan at the instance of PW8 SI Govind
Sharma. It is submitted, the perusal of the
siteplan shows that property bearing No.
1804/2 was a vacant plot and that the place
of recovery in the siteplan is shown as1804/1 Parsadi Gali, Kotla Mubarakpur. It is
further submitted that the siteplan does not
show any first floor and it only shows the
stairs going to the second floor which
proves that no such recovery of explosives
and cash was effected from the accused
persons nor they were apprehended from
there.
22. Regarding recovery of incriminating
material from the possession of accused
persons it is submitted that as per the
siteplan two boys were apprehended on the
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