Karnataka High Court
Sri. Mohammed Fahad Hi @ Mohammed Koya vs State Of Karnataka on 25 September, 2024
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CRL.A No. 669 of 2023
C/W CRL.A No. 1220 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 669 OF 2023
C/W
CRIMINAL APPEAL NO. 1220 OF 2023
IN CRL.A No. 669/2023
Between:
1. Sri Syed Abdul Rehaman
@ Abdul Rehaman
S/o Syed Ibrahim,
Aged about 36 years,
R/at No 8, 1st Cross,
Digitally signed
by VEERENDRA Tippu Nagar,
KUMAR K M Mysuru Road,
Location: HIGH Bengaluru
COURT OF
KARNATAKA 2. Apsarpasha @ Khushiruddin
S/o Noor Ahmed,
Aged about 43 years,
R/at 15th Cross,
Lakasandra,
Bengaluru,
Home Town : Chintamani,
(UTP No 19040, Gulbarga Jail)
...Appellants
(By Sri Mohammed Tahir, Advocate)
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And:
State by
Adugodi Police Station (CCB),
Organized Crime Wing
Represented by
State Public Prosecutor
Advocate General Office
High Court Complex,
Opposite to Vidhana Soudha
Bengaluru - 560001
...Respondent
(By Sri Vijayakumar Majage, SPP-II)
This Crl.A is filed u/s.21(1) of NIA Act of Cr.P.C praying to
set aside the impugned judgment dated 23.02.2023 and
sentence dated 03.03.2023 passed by the Hon'ble 49th
Additional City Civil and Sessions Judge, (Spl.Court for trial of
NIA cases) at Bengaluru (CCH-50) in S.C.No.297/2013 for the
offence p/u/s 120B, 122 of IPC and sections 13, 17, 18 of
UA(P) Act and sections 25, 26 of Arms Act, sections 4, 5, 6 of
Explosive Substances Act in respect of appellant No.1/accused
No.1 and for the offence p/u/s 120B, 122 of IPC and sections
13, 17, 18, 18(B) of UA(P) Act and sections 4, 5, 6 of Explosive
Substances Act in respect of appellant No.2/accused No.3 at
Annexure-A and allow this appeal.
In Crl.A No. 1220/2023
Between:
Sri Mohammed Fahad Hi
@ Mohammed Koya
S/o Abdul Hi @ Abdul Koya
Aged about 30 years,
No. 2108717948-5,
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Citizen of Pakistan
No.K-366, Block-F, North Nizamabad
Karachi, Pakistan, (UTP No. 11473)
Gulbarga Jail.
...Appellant
(By Sri S.Balakrishnan, Advocate)
And:
State of Karnataka
By Adugodi Police Station
CCB (Organized Crime Wing)
Represented by Special Public Prosecutor,
High Court Building, Bengaluru - 560001
...Respondent
(By Sri Vijayakumar Majage SPP-II)
This Crl.A is filed under section 374(2) of Cr.P.C. read
with section 21 of NIA Act praying to set aside the
impugned judgment dated 23.02.2023 and sentence dated
03.03.2023 passed by the Hon'ble XLIX Additional City Civil
and Sessions Judge, (Spl. Court for trial of NIA cases) at
(CCH-50) Bengaluru in S.C.No.297/2013 for the offence
p/u/s 120B, 122 of IPC and sections 4, 5, 6 of Explosive
Substances Act, 1980.
Date on which the appeals were
18.07.2024
reserved for judgment
Date on which the judgment was
25.09.2024
pronounced
These appeals, having been heard & reserved, coming on
for pronouncement this day, judgment was delivered therein as
under:
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CRL.A No. 669 of 2023
C/W CRL.A No. 1220 of 2023
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
and
HON'BLE MS JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: HON’BLE MR JUSTICE SREENIVAS HARISH KUMAR)
These two appeals arise from the judgment
dated 23.02.2023 in S.C.No.297/2013 tried by
XLIX Additional City Civil and Sessions Judge
(Special Court for Trial of NIA Cases) (CCH-50),
Bengaluru.
2. Crl.A.No.669/2023 has been filed by
accused Nos.1 and 3 and Crl.A.No.1220/2023 is by
accused No.2. While acquitting all the three
accused for the offences punishable under sections
121, 121A, 153A and 153B of IPC, and sections 3,
11 and 16 of Unlawful Activities (Prevention) Act,
1967 (‘UA(P)A’ for short), the trial court convicted
accused Nos.1, 2 and 3 for the offences punishable
under sections 120B and 122 of IPC, sections 13,
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17, 18 of UA(P)A and sections 4, 5 and 6 of the
Explosive Substances Act, 1908. In addition, the
trial court recorded conviction also for the offences
under sections 25 and 26 of the Arms Act against
accused No.1, and for the offences punishable
under section 18B of UA(P)A against accused Nos.2
and 3. Hence these appeals challenging their
conviction and sentence imposed thereon.
3. The prosecution case emanated in this
way. About 4.00 pm on 07.05.2012, PW2-
K.C.Ashokan, Inspector of Police, CCB, Bengaluru,
received a credible information that Abdul Rehman,
accused No.1, had in his possession illegal fire arm
suspectedly supplied to him by Lasker-e-Toiba
(LeT) operatives from Pakistan. PW2 was informed
that accused No.1 would be found moving around
Jumma Masjid Area at Nanjappa Layout and was a
notorious criminal having record of two or three
criminal cases registered at Chandra Layout and
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Kengeri police stations in relation to offences of
theft and supplying fire arms to another criminal
by name Ikram @ Akram who was killed in a police
encounter. It was further informed to him that
while accused No.1 was in jail, came in contact
with two prisoners, namely Fahad, a Pakistani
National (accused No.2), Afsar (accused No.3) and
inside the jail the latter two persons indoctrinated
accused No.1 in religious fundamentalism and in
developing hatred towards Hindu religion, and
introduced him to LeT operatives at Pakistan and
UAE. Accused No.1 was released on bail and
thereafter he continued his contact with LeT
operatives who used to frequently supply him
money for the purpose of recruiting Muslim youths
to LeT and acted in accordance with directions of
LeT to carryout blasts at important places in
Bengaluru city and kill Hindu activists.
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4. PW2 then passed on the information that
he received to his superior officer who constituted
a team including PW2 to apprehend accused No.1.
On the same day around 6.15 p.m, the team
located accused No.1 at a place called Venkob
Chicken Center at Nanjappa Layout and
apprehended him. Accused No.1 was subjected to
search at that place and he was found in
possession of 0.32 caliber loaded revolver, two
Nokia mobile phones with dual sim facility and
cash of Rs.540/-. All these articles were seized in
the presence of panchas. The team then handed
over accused No.1 and the seized articles with
mahazar, Ex.P1 to PW20, the Inspector of Police,
Adugodi police station who recorded FIR as per
Ex.P2 on a report made by PW2. PW21 conducted
investigation and filed charge sheet for the
offences punishable under sections 120B, 121,
122, 124A, 153A, 153B read with section 34 of
IPC, sections 3, 25 and 26 of the Arms Act,
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sections 3, 11, 13, 16, 17, 18 and 18B of the
UA(P)A and sections 4, 5 and 6 of the Explosive
Substances Act, 1908.
5. The prosecution examined 26 witnesses
and got marked the documents as per Exs.P1 to
P124. MOs1 to 18 are the material objects
produced by the prosecution. Exs.D1 to D5 were
got marked on behalf of the accused. After
assessing evidence the trial court gave a judgment
acquitting the accused for some of the offences
and convicting them for the rest of the offences as
aforementioned. The State has not preferred any
appeal against the acquittal recorded by the trial
court and therefore all that we need to examine
now is whether the trial court is justified in
recording conviction for the offences punishable
under sections 120B, 122 of IPC, sections 13, 17,
18, 18B of UA(P)A, sections 4, 5 and 6 of the
Explosive Substances Act and sections 25 and 26
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of the Arms Act. Before taking up discussion, the
scope of each of the sections for which conviction
has been recorded is to be mentioned here for
better appreciation of evidence.
6. Section 120B is a penal section for
criminal conspiracy. Section 120A of IPC defines
‘criminal conspiracy’. To constitute criminal
conspiracy the prosecution has to establish
involvement of two or more persons, that means
at least the involvement of two persons must be
forthcoming, and there must be agreement
between two or more persons to do or cause to be
done an illegal act or an act which is not illegal by
illegal means. The proviso makes it further clear
that no agreement except an agreement to commit
an offence shall amount to criminal conspiracy
unless some act besides the agreement is done by
one or more parties to such an agreement in
pursuance thereof.
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7. Section 122 of IPC is in Chapter VI of IPC
and it deals with collection of arms, men or
ammunition or making preparation with intention
to wage war against Government of India.
Therefore the collection of arms, men or
ammunition must indicate a preparation or
intention to wage war against Government of
India.
8. Sub-section (1) of section 13 of UA(P)A
has got two clauses. Clause (a) deals with taking
part or committing an unlawful act, and clause (b)
envisages advocating, abetting, advising or inciting
the commission of unlawful activity. Sub-section
(2) states that after declaration of any association
by a notification under section 3(3) of UA(P)A as
unlawful becomes effective, if any person in any
way assists any unlawful activity of that unlawful
association it becomes punishable. The subtle
distinction between sub-sections (1) and (2) is
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that, in sub-section (1) taking part of an individual
in any way as mentioned in clauses (a) and (b) is
made punishable and sub-section (2) states that if
an individual assists the unlawful activity of an
unlawful association, he may be punished.
9. If a person is to be punished for the
offence under section 17 of UA(P)A the prosecution
must prove that such person, being in India or in a
foreign country, has directly or indirectly collected
or provided or raised funds with a knowledge that
the funds are likely to be used by a person or a
terrorist organization or a terrorist gang for
committing a terrorist act.
10. Section 18 of UA(P)A prescribes
punishment for conspiracy to committing or
advocating or abetting or advising or inciting or
knowingly facilitating commission of a terrorist act
or any act preparatory to the commission of a
terrorist act. Section 18B prescribes punishment
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for recruiting or causing to be recruited any person
for commission of a terrorist act.
11. Section 4 of the Explosive Substances Act
provides punishment for making attempt to cause
explosion, or for making or keeping explosives
with intent to endanger life or property. Section 5
of the said Act states that if a person makes or
knowingly possesses with him or under his control
any explosive substance or special category of
explosive substance giving rise to a reasonable
suspicion that he is not making it or does not
possess it with him or his control for a lawful
object is liable to punishment unless he is able to
show that his possession of the explosive
substance is for lawful object. Section 6 of the
said Act is to punish a person who procures,
counsels, aids, abets, the commission of any
offence under this Act by supply of the materials
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or by solicitation for money or by providing the
premises.
12. According to section 25 of the Arms Act
various acts would amount to an offence and a
person found involved in any of such acts can be
punished. Possessing or carrying a fire arm in
contravention of section 7 amounts to an offence
and he is punishable. And section 26 of the said
Act contains three sub-sections. Sub-section (1)
prescribes punishment for doing an act
contravening the provisions of sections 3, 4, 10 or
12 in such manner giving an indication of intention
that the act likely to be committed may not be
known to any public servant or to any person
employed or working upon a railway, aircraft,
vessel, vehicle or any other means of conveyance.
Likewise sub-section (2) prescribes punishment for
doing anything in contravention of sections 5, 6, 7
or 11. And sub-section (3) envisages punishment
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for concealing or attempting to conceal any arm or
ammunition when a search under section 22 is
undertaken.
13. Keeping in mind the scope of each of the
above sections, the entire evidence is to be
reassessed. It is not in dispute that accused No.1
was in jail and released on bail before he was
arrested in connection with the present case. The
other two accused remained in jail even after
release of the first accused and they were shifted
to other jails.
14. If the impugned judgment is read, it
becomes clear that, the meeting of all the three
accused when they were in jail, recovery of
revolver, mobile phones and cash, and recovery of
explosive substances at the instance of accused
No.1, analysis of CDR and recovery of two books
from accused No.2 are the main reasons for the
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trial court to hold that there was conspiracy among
accused Nos. 1 to 3.
15. Assailing these findings, it was the
argument of Sri Mohammed Tahir and Sri
Balakrishnan, learned counsel for the appellants,
that no inference as to existence of conspiracy
among accused 1 to 3 could be drawn merely for
the reason that they used to meet while being in
jail. There is no evidence that all the three knew
each other before they were jailed; meeting at a
place after getting to know each other is not
unusual; the jail warden has simply stated that
accused used to disperse seeing him, and this
statement cannot be held basis for holding that the
accused used to conspire for committing an illegal
act. It was his sheer suspicion which does not
take the form of legal proof.
15.1. They further argued that recoveries at
the instance of accused No.1 are not proved in
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accordance with law. It is the clear evidence of
the jailor that no prisoner was permitted to use
mobile phone, so it was highly impossible that
accused 2 and 3 were contacting accused No.1
after the latter came out of jail on bail. They
argued that many penal provisions were wrongly
invoked, and to substantiate this point they
pointed out that waging war against country from
inside the jail cannot be imagined at all. Therefore
they deplored the findings of the trial court.
16. Sri Vijaykumar Majage, SPP-II, for the
State argued that all the three accused were
meeting at the time of having breakfast, lunch and
dinner. Their movements were suspicious. Even
after accused No.1 was released on bail and two
other accused were shifted to other jails from
Bengaluru jail, they were in touch with each other,
as evidenced by call details and tower locations.
Recovery was at the instance of accused No.1, but
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the revolver and explosives were sent to him from
LeT, which is a banned terrorist organization. It
cannot be said that there is no evidence for
conspiracy. The trial court has rightly drawn
conclusions.
17. On re-assessment of evidence in the light
of points of arguments of the learned counsel,
what is found is that the prosecution has made an
attempt to build its case about conspiracy among
the accused based on the evidence of PW5, the
Chief Warden at Central Jail, Parappana Agrahara
and the telephonic conversations. The prosecution
seeks to establish link between this evidence and
recoveries effected thereafter. All that PW5 has
stated is that he used to see all the three accused
meeting during breakfast, lunch and dinner time,
and they were moving away if they happened to
see him. Therefore PW5 stated that the
movements of the accused appeared suspicious.
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18. PW11 provided call details of the mobile
phone with sim No. 9060729118 and also the
particulars of the application made by the person
who obtained the sim card. PW14 while working as
Nodal Officer at Vodafone provided call details of a
mobile phone to PW21. Exs.P17 and P18 are the
documents in this regard. PW22, being the Nodal
Officer of Bharati Airtel furnished to CCB police the
call details of mobile phones with numbers
9535656581, 9632168474, 9880979347,
8220120820, 9741696016 and 9632144042 for the
period 01.06.2011 to 07.05.2012. PW23 was
working as Head Nodal and Regulatory for TATA
Teleservices and on a request made by CCB Police
Inspector, he furnished information of the
subscribes of mobile numbers 9035698554,
8976057645, 9241372337 and 9241097534.
19. The oral testimony of PW16 shows that
the ACP i.e., PW21 gave him a CD containing call
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details of ten mobile phone numbers and asked
him to filter in excel format the communications
made from one number to the other and prepare a
chart of communications. He took out the call
history of each number, segregated them and
prepared the charts as per Exs.P112 to P117.
20. The credible information received by PW2
led to arrest of accused No.1 and recovery of MO1
to MO6 at his instance. Accused No.2 and accused
No.3 were inculpated at a later stage. Now itself
one point may be clarified. Sri Balakrishnan
argued that accused No.1 was arrested without
registration of FIR. In this regard it is to be stated
that there was nothing wrong in it. What PW2
received on 07.05.2012 was information about
accused No.1, it was not an information that a
cognizable offence had already been committed
which warranted registration of FIR. Giving
information to a police officer either telephonically
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or in any other mode does not require registration
of FIR immediately; FIR can be registered
thereafter if the police officer comes to know that
a cognizable offence is committed. Telephonic
information alerts the police who are expected to
take immediate measures to avert a crime from
happening. And if the crime is already committed,
they have to set the law into motion.
21. In this case PW2 accompanied by a team
of police personnel, including PW10, and PW12 and
panchas spotted the accused No.1 near Venkob
Chicken Centre and then nabbed him. He was
found possessing a revolver (MO1), four bullets
(MO2), red colour Nokia mobile phone (MO3),
black colour Nokia mobile phone (MO4) and a belt
wrist watch (MO6). Ex.P1 is the mahazar drawn
seizing these articles. The testimony of PW2 is
corroborated by PW10 and PW12, and also PW1-
the independent witness to Ex.P1. These
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witnesses have not been discredited in the cross-
examination.
22. After the arrest of accused No.1,
involvement of accused 2 and 3 was suspected on
the basis of voluntary statement given by accused
No.1. Here assumes the relevancy of testimony of
PW5 who has stated that he used to see all the
three accused meeting and conversing when they
would meet for breakfast, lunch and dinner. To
this evidence of PW5, PW21-the investigating
officer tries to connect the telephonic
conversations among them after accused was
released from jail on bail, on 31.12.2011. The
evidence given by PW21 is more about these
telephonic conversations. He might have collected
the details of calls as spoken to by PW11, PW14,
PW22 and PW23, and he might have got those
conversations analyzed with the help of PW16, but
the question is whether with the help of these
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telephonic conversations, conspiracy among three
accused can be held to have been proved.
23. To connect the conversations to existence
of conspiracy, PW21 refers to other transaction
about which he has stated in his examination-in-
chief. He has stated in this way : Accused 1, 2
and 3 were staying in neighbouring cells at the jail
for about seven months. Accused No.1 disclosed
in his voluntary statement that he was receiving
calls from a foreign country and the person who
contacted him had told that he would send money,
revolver and bullets to accused No.1 [Ex.P26(c)].
Accused No.1 went to Srirangapattana on
17.03.2012 and received a revolver, Rs.40,000/-
and four bullets. Accused 2 and 3 had made three
calls to accused No.1 on 17.03.2012 [Ex.P75(b)],
location of accused No.1 at Srirangapattana had
been traced on 17.03.2012 and accused No.1
himself showed the place at Srirangapattana where
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he received the revolver and cash. Accused No.1
revealed that a person from foreign country,
namely Bhai had told him about supplying the
materials required for manufacturing bombs
[Ex.P30). The locations of accused No.1 at
Adugodi were traced on 30.04.2012 and
04.05.2012 and on that day he had received
MO11-a plastic box containing ammonium nitrate
and MO13-a plastic box containing gel explosives,
and the calls that accused No.1 has received as
mentioned in Ex.P45, were from Gulf country.
Accused No.1 also disclosed in his statement of the
plan made at the instance of a person called Bhai
from Pakistan to attack the police who would
escort accused Nos. 2 and 3 to court.
24. PW21 has, in his evidence in
examination-in-chief, made an attempt to show the
involvement of accused Nos. 2 and 3, based on
their voluntary statements. If the entire evidence
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of PW21 is read, it becomes amply clear that
except recovery of explosive substances in the
premises of Gnana Bharati Campus of Bengaluru
University under panchanama-Ex.P27, the rest of
his evidence is nothing but reiteration of
statements given by all three accused while they
were interrogated. His evidence with reference to
confessions of the three accused cannot be proved
against them. Assuming that the defence has
failed to discredit PW21 in the cross-examination,
still major part of his evidence becomes unworthy
of acceptance because of prohibition contained in
section 25 of the Indian Evidence Act. Merely for
the reason that accused 1 to 3 were together in
jail for a few months and they were meeting at
that time no inference can be drawn that they
were conspiring to commit a crime. Even though
evidence of PW5 is acceptable, he only says that
the accused 1 to 3 used to meet. If he stated that
all the three were dispersing if they happened to
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see him, it leads to no inference that they might
be planning to hatch conspiracy. The conduct of
the accused in moving apart may lead to a kind
suspicion, but it does not amount to proof
according to law.
25. It is true that CDR analysis made by
PW16 shows telephonic communication among
themselves. As deposed by PW26, there is
certificates issued under section 65B of the Indian
Evidence Act in respect of CDRs. But by
considering the CDRs, no inference as to
conspiracy can be drawn. Accused No.1 came out
of jail on 31.12.2011, and the other two remained
in the jail. This is not disputed. If accused Nos.2
and 3 remained in jail, an obvious doubt as to how
they could communicate with accused No.1 would
arise.
26. It has been elicited from PW21 in the
cross-examination that the Chief Superintendent,
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Central Jail, Gulbarga, has given a report as per
Ex.P34 that there is no mention of using of mobile
phones by accused 2 and 3. This portion is
marked as Ex.D1. If this was the report of Chief
Superintendent of Jail, making of calls by accused
Nos.2 and 3 to accused No.1 as deposed by PW21
becomes difficult to be accepted, and if there were
to be any telephonic conversations as stated by
PW21, they must be illegal conversations from
which inference as to existence of conspiracy is
difficult to be drawn, because PW21 has also
stated that accused No.1 had received a call from
Gulf country and also from a person called ‘Bhai’
from Pakistan.
27. Then PW21 has stated in cross-
examination that the voluntary statement of
accused No.1 contains a reference to visits made
by accused No.1 to Bengaluru and Gulbarga jail to
meet accused 2 and 3. And he has further stated
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that in Ex.P34, there is no mention of anybody
giving visit to meet accused 2 and 3. The
prosecution case inhere these doubts which cannot
be explained away at all. PW21 has spoken about
seizure of two books from accused No.2. He has
stated that when accused No.2 was secured under
body warrant, the latter was found possessing the
books written in Urdu language. According to
PW21, the books were about Jihad. The English
translation of the books are also produced. No
doubt there are a few sentences against India and
non-Muslims. First of all this seizure is difficult to
be believed, for accused No.2 was in jail, and he
was brought under body warrant. His possessing
books is difficult to be accepted. Therefore
attending circumstances do not establish offence of
conspiracy.
28. Section 120B of IPC and section 18 of
UA(P)A is sought to be proved by the same
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evidence. Now that it is held that evidence is
lacking, conviction for both the offences cannot be
recorded. The trial court has failed to notice that
the evidence given by PW21, especially in regard
to confessions given by accused 1, 2 and 3 cannot
be proved against them. Having obtained
confession statements, PW21 should have made
effort to collect independent evidence in the sense
that de hors the confessions there must be
available other independent evidence indicating
proof for the charges for the offence of conspiracy
under section 120B of IPC and section 18 of
UA(P)A. Despite certain recoveries from accused
No.1, these two offences do not get established.
29. So far as offence under section 18B of
UA(P)A is concerned, the allegation is that accused
No.1 intended to recruit persons for commission of
terrorist act. This allegation was pursuant to
alleged conspiracy. Since offence under section 18
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does not get established, the offence under section
18B also does not get established. Likewise
evidence does not disclose commission of offences
under sections 13 and 17 of the UA(P)A. Even for
these two offences, PW21 refers to the voluntary
statements of the accused and nothing more.
Hence these two offences are also not proved.
30. Above all, according to section 45 of
UA(P)A, no court can take cognizance of the
offences under Chapters III, IV and VI without
previous sanction from the State Government or
the Central Government as the case may be. Here
sanction from State Government was obtained.
PW25 has given evidence in regard to passing of
sanction order as per Ex.P92. PW25 was the
Principal Secretary to Home Department,
Government of Karnataka, and he was the
sanctioning authority. His evidence is that he
went through charge sheet materials and the
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report of the Director of Prosecution and having
found existence of prima facie materials, he
passed sanction order. But what is not
forthcoming from his evidence is that the matter
was not referred to independent review authority
as required under sub-section (2) of section 45 of
UA(P)A. Sub-section (2) mandates to consider the
report of independent review authority. PW25 has
deposed that he was aware that the review
committee had to recommend for sanction based
on investigation materials, and the government
must consider the review committee report. His
further answer in the cross-examination is that he
could not remember whether review committee
was there or not when he passed the sanction
order. His evidence makes two aspects abundantly
clear, either the materials collected during
investigation might not have been referred to the
review committee or if referred, the report might
not have been placed before the sanctioning
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authority. Thus seen the sanction order loses its
sanctity, and it is vitiated. The trial court has
missed this aspect. Therefore conviction of all the
accused for the offences under sections 13, 17, 18
and 18B of UA(P)A cannot be sustained.
31. Then there remains the offences under
sections 4, 5 and 6 of the Explosive Substances
Act and sections 25 and 26 of the Arms Act, this is
against accused No.1 only. The evidence given by
PW1, PW2, PW10 and PW12 in regard to recovery
of revolver and bullets from accused No.1 on
07.05.2012 has remained unassailed. The revolver
is a fire arm and accused No.1 possessed it
without licence. He was found carrying the
revolver concealingly. The trial court has held that
accused No.1 possessed 0.32 caliber revolver
without licence and it was a prohibited fire arm
and thereby offence under section 25 would get
attracted. It is further finding of the trial court
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that accused No.1 carried the prohibited fire arm
which was found in his waist with an intention that
it should not become known to public servant, i.e.,
PW2 and therefore the offence under section 26 of
the Arms Act would stand proved. These findings
cannot be said to be incorrect.
32. Then in regard to offences under sections
4, 5 and 6 of the Explosive Substances Act, the
trial court has held all the three accused guilty,
and its findings are found in para 243 of the
impugned judgment. The conclusions drawn by the
trial court appear to be based on the confessions
of the accused, which do not stand in the eye of
law. But there is other evidence in regard to
recovery of explosive substances at a place inside
Jnana Bharati premises, Bengaluru. MO11 is
ammonimum nitrate and MO13 is gel explosive,
and of course this recovery was based on
disclosure made by accused No.1 in his voluntary
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statement. PW7 was the expert who confirmed
that the seized substances were explosives.
Though accused No.1 did not have actual physical
possession of explosive substances, the very fact
that he had hidden them at a secluded place amid
plants and bushes in Jnana Bharati campus would
indicate that he alone had the knowledge about the
place of concealment and that he had control over
the explosive substances. If he had not been
arrested and those substances were not recovered
at his instance, it can be stated unhesitatingly he
would have made use of them or transferred them
to some other place, and in these circumstances, it
can be said that accused No.1 had control over the
explosive substances and therefore offences under
sections 4 and 5 of the Explosive Substances Act
can be attracted against accused No.1 only. But
there is no material for invoking offence under
section 6, for the ingredients of that section are
not forthcoming from the evidence.
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33. PW24 has given evidence for according
sanction to prosecute the accused under the Arms
Act. He has stated about giving permission to file
charge sheet for the offences under Explosive
Substances Act. PW24 being the Commissioner of
Police for Bengaluru City had the powers of District
Magistrate. Section 39 of the Arms Act
contemplates previous sanction by the District
Magistrate, and section 7 of the Explosive
Substances Act requires consent to be given by the
District Magistrate for trial of a person for the
offences under this Act. Both these requirements
are met with. Ex.P32 is the sanction order under
the Arms Act. PW24 has stated to have given
permission to PW21 on 04.10.2012 to file charge
sheet for the offences under Explosive Substances
Act. The evidence of PW24 to this extent has not
been assailed.
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34. Therefore from the above discussion
what transpires is that the conviction judgment
requires to be modified. Accused Nos. 2 and 3 are
to be acquitted in entirety. And accused No.1 can
be convicted only for the offences under sections
25(1B) and 26 of the Arms Act and sections 4 and
5 of the Explosive Substances Act. He deserves to
be acquitted of the offences under sections 120B
and 122 of IPC and sections 13, 17, 18 of UA(P)A
and section 6 of Explosive Substances Act. The
sentence imposed on him also requires
modification for the offence under section 25 of
the Arms Act. Since his act would fall under
section 25(1B) of the Arms Act, the maximum
sentence that could be imposed in accordance with
law as applicable on the date of incident was three
years imprisonment and fine, not seven years as
has been held by the trial court. The sentence
imposed on him for the offence under section 26 of
the Arms Act and section 4 and section 5 of the
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Explosive Substances Act does not require
modification.
35. With the above discussion, the following
order is passed.
(i) Criminal Appeal 669/2023 stands allowed
partly in so far as accused No.1 is concerned
and it stands allowed in entirety concerning
accused No.3.
(ii) Criminal Appeal 1220/2023 filed by
accused No.2 is allowed.
(iii) Impugned judgment is modified as below:
(a) Accused No.1 is acquitted of the
offences under sections 120B and
122 of IPC, offences under sections
13, 17 and 18 of UA(P)A and section
6 of the Explosive Substances Act.
(b) Conviction of accused No.1 for
offences under sections 25 and 26 of
the Arms Act and sections 4 and 5 of
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the Explosive Substances Act is
confirmed. But sentence under
section 25 of the Arms Act is reduced
to three years simple imprisonment
from seven years, however fine
amount and default imprisonment is
not altered. Sentence on accused
No.1 for the offences under section
26 of the Arms Act and sections 4
and 5 of the Explosive Substances
Act is confirmed. And the
imprisonment for these offences is
made to run concurrently.
(c) Accused Nos. 2 and 3 are acquitted of all the offences with which they stood convicted by the trial court. They shall be set at
liberty forthwith if their presence is
not required in any other case.
(d) Accused No.2 shall be deported
to Pakistan after his release from
jail.
(e) Accused No.1 shall be set at
liberty if he has completed
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imprisonment period for the offences
under sections 25 and 26 of the Arms
Act and sections 4 and 5 of the
Explosive Substances Act if his
presence is not required in any other
case.
Sd/-
(SREENIVAS HARISH KUMAR)
JUDGE
Sd/-
(J.M.KHAZI)
JUDGE
CKL/
List No.: 19 Sl No.: 1