Gateway of India Blast Case- Court Verdict

Bombay High Court Bombay High Court The State Of Maharashtra vs Sayeed Mohd. Hanif Abdul Rahim on 10 February, 2012 Bench: A.M. Khanwilkar, P. D. Kode 1 conf.5.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CONFIRMATION CASE NO.5 OF 2009 The State of Maharashtra .. Appellant (Ori. Complt.) versus 1. Sayeed Mohd. Hanif Abdul Rahim, 2. Ashrat @ Arshad Shafiq Ahmed Ansari, 3. Fehmida w/o Sayyed Mohd. Hanif .. Respondents (Ori.Accused Nos.1 to 3) WIT H CRIMINAL APPEAL NO.880 OF 2009 Sayyed Mohd. Hanif Abdul Rahim, Oc.Rikshaw Driver, R/o.D/7, Salim Chawl, Chimatpada, Marol Naka, Andheri (W), Mumbai-400 059. .. Appellant (Presently lodged at Nagpur Central Prison (Ori.Accused No.1) convicted in the present prisoner matter). versus The State of Maharashtra .. Respondent (At the instance of DCB, CID, Mumbai) WIT H CRIMINAL APPEAL NO.857 OF 2009 Ashrat @ Arshad Shafiq Ahmad Ansari Age 32 years, Plot No.515, Junnat Nagar, C.D.Barfiwala Marg, Andheri (W), Mumbai 400 058.Indian Kanoon - http://indiankanoon.org/doc/126463415/ 1

The State Of Maharashtra vs Sayeed Mohd. Hanif Abdul Rahim on 10 February, 2012

Presently in Judicial Custody .. Appellant Mumbai Central Prison (Arthur Road Jail), (Ori.Accused No.2) Mumbai . versus The State of Maharashtra .. Respondent (Through : DCB, CID UnitVIII) 2 conf.5.09 WIT H CRIMINAL APPEAL NO.1128 OF 2009 Fehmida w/o Sayyed Mohd. Hanif, Age 43 years, Occ. Housewife, R/o.D-7, Salim Chawl, Chimatpada, .. Appellant Marol Naka, Andheri (E), Mumbai-400 059. (Ori.Accused present in Yerawada Central No.3) (At Prison). versus The State of Maharashtra .. Respondent (At the instance of DCB , CID, Mumbai) WIT H CRIMINAL APPEAL NO.4 OF 2009 The State of Maharashtra .. Appellant versus 1. Mohd. Hasan Mohd. Anas Shaikh @ Hasan Bateriwala, Near Nurul Islam Masjid, Sanjay Nagar, Hill No.3, Ghatopkar (W), Mumbai . 2. Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladoowala, Rajiv Gandhi Nagar, Burma Shell Line, Near Gulistan Madarasa, Kurla (E), Mumbai. .. Respondents (Ori.Accused Nos.4 & 5) WIT HIndian Kanoon - http://indiankanoon.org/doc/126463415/ 2


WRIT PETITION NO.2539 OF 2008 The State of Maharashtra (Ori.Opponent) versus


Petitioner

1. Mohd. Hasan Mohd. Anas Shaikh @ Hasan Bateriwala , Near Nurul Islam Masjid, Sanjay Nagar, Hill No.3, Ghatkopar (W), Mumbai. 3 conf.5.09 2. Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladoowala, Rajiv Gandhi Nagar, Burma Shell Line, Near Gulistan Madarasa, Kurla (E), Mumbai . Respondents (Ori Accused Nos. 4 & 5) APPEARANCES : Ms.Poornima H. Kantharia, A.P.P. a/w Shri J.P.Yagnik, A.P.P. for State (Appellant in Conf.Case No.5/2009, in W.P.No.2539/2008, Appellant in Cri.Appeal No.4/2009, and Respondent in Petitioner Cri.Appeal Nos.880/2009, 857/2009 and 1128/2009). Shri Khan Abdul Wahab for ori.accused no.1 (Respondent no.1 in Conf.Case No.5/2009 and Appellant in Cri.Appeal No.880 of 2009). Shri Sushan Kunjuraman and Shri Mahesh Kadam for ori.accused no.2, Respondent no.2 in Conf.Case No.5/2009 & Appellant in Cri.Appeal No.857/2009). Shri Sudeep Pasbola a/w Ms.Maharukh Adenwalla i/by Rahul Arote for ori.accused no.3 (Respondent no.3 in Conf.Case No.5/2009, Appellant in Cri.Appeal No.1128/2009). Shri Sharif Shaikh for ori.accused nos.4 and 5 (Respondent nos.1 & 2 in W.P.No.2539/2008 & Appellant in Criminal Appeal No.4/2009). CORAM : A.M.KHANWILKAR AND P.D.KODE, JJ. DATE OF RESERVING : NOVEMBER 12, 2011. DATE OF PRONOUNCING : FEBRUARY 10, 2012.Indian Kanoon - http://indiankanoon.org/doc/126463415/ 3

JUDGMENT ( PER : P.D.KODE, J. ) 1. All the aforesaid proceedings arise out of either- (a)Report/Direction dated 10th May 2005 given by Review Committee constituted under section 60 of Prevention of 4 conf.5.09 Terrorism Act, 2002 (hereinafter referred as "POTA") as amended by Prevention of Terrorism (Repeal) Act, (hereinafter referred as "Repeal Act") 2004 or; (b)Order dated 17th November, 2008 passed on Exh D-116 in POTA Special Case No.1 of 2004 during the of trial after evidence of both the sides at trial was over or; (c)Final judgment and order delivered on midst 6th August, 2009 in POTA Special Case No.1 of 2004 of the Special Court under POTA Act for Greater Mumbai. 2. The said POTA Special Case No.1 of 2004 was registered on the basis of charge sheet filed on 5th February Chief Investigating Officer (PW 103) ACP Suresh Walishetty at the conclusion of investigation 2004, by of crimes for commission of offences under section 120-B read with sections 302, 307, 326, 324 of four IPC sections 3,4,5 of Explosives Substances Act, 1908 and under sections 5 and 9 (b) of Indian under Explosives and under sections 3,4,5 and 20 of Prevention of Terrorist Act, 2002 against in all six Act, 1884 named in the charge sheet along with wanted accused Shafakat Ali, Khalid Maqsood, Jehangir, accused Bilal, Samiullah and Rehman. 3. During the pendency of the case, pursuant to the prosecution Application dated 5.5.2004 at Exh-P, under 307 of Code of 5 conf.5.09 section Criminal Procedure (hereinafter referred to as `the Code'), Jehangir Patne (numbered as accused no.4 in the charge sheet) was accorded pardon and was subsequently examined as an Approver PW2 at the trial. said 4. Accordingly, charge as described in detail in Exh-P5, was framed at said trial on 23rd June 2004, for commission of various offences under IPC, Explosives Substances Act, Indian Explosives Act, Prevention of Terrorist Act, and Damage to Public Property Act, etc. against remaining five accused named in the chargeWhile framing the said charge Mohd. Hasan Mohd. Anas Shaikh @ Hasan Batterywala numbered sheet. as accused no.5 and Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladduwala numbered as accused no.6 in the charge sheet, were renumbered as accused nos.4 and 5 respectively (who are hereinafter referred to as `A4 and A5') . 5. After evidence of both the parties was adduced at the trial, Review Committee constituted under section 60 POTA as amended by Repeal Act, gave hearing to said accused A1 to A3, A4 and A5 and their counsel of as as to the learned Public Prosecutor. After examining the Police Report comprised of statements well of witnesses, seizure memos and other material, the said Committee on 10th May 6 conf.5.09 2005 opined that the said A4 and A5 were not found connected with the incident of terrorism in the four bombcases and therefore there is no basis for their prosecution under POTA. However, A1 to A3 and blast PW2 (numbered as accused no.4 in the charge sheet) were prima facie connected with offences under POTA and therefore, there appears no misuse of power in invoking POTA against them. The said Committee thereforeState of Maharashtra to proceed as per Clause (a) of sub-section (3) of Section 2 of Repeal Act qua directed the said A4 and A5. 6. Thereafter, said A4 and A5 preferred MA No.42 and MA No.44 of 2005 to invoke Section 60 (7) of POTA discharge them from the said case. The same were rejected by the Special Judge, POTA Court and to Mumbai dated 11th August 2005. A4 preferred Criminal Appeal No.783 of 2005 while A5 vide order preferred Writ Petition No.2363 of 2005 before this Court challenging the said order. Both the Criminal said proceedings were disposed of by this Court by order dated 24th October 2005. This Court held that the saidand A5 cannot be discharged directly merely on the basis of opinion of the Review Committee. The A4 Court


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directed the prosecution to file an application for withdrawal of the case against A4 and A5 under section 321 Code. of the 7 conf.5.09 7. On 18th November, 2005 A4 and A5 filed application Exh.D-54 before POTA Court to call upon Special PP to inform the Court whether he intends to make an application as directed by this Court vide order dated October, 2005. In response to the said application, on 24th November, 2005, Special Public 24th Prosecutor filed application P-319 for recalling PW8 for further examination-in-chief on account of new material being introduced during his cross- examination. In the said application P-319, it was contended that the same had become necessary in view of direction given by this Court to take out an application under Section 321 of Cr.P.C. It was further contended that the same was necessary as Special PP had to formulate his opinion about existence or non-existence of prima facie case under POTA against A4 and A5 for making an appropriate as directed by this application Court. 8. By the common order, passed on 29th November, 2005, on application Exh.P-319 and Exh.D-54, the POTA Court kept the prayer for recall of PW8 for consideration after prosecution examines all the witnesses the investigation officer, as ordered earlier by the said Court upon the earlier application. On excepting 5th December, 2005 Special Public Prosecutor for the matters stated in the application submitted that it was not desirable at all to apply for withdrawal from 8 conf.5.09 prosecution under POTA against A4 and A5. Ultimately on 3rd January, 2006 the learned Special PP preferred application Exh.P-343 under Section 321 of the Code stating that for the matters stated therein, after due weightage to the observations and recommendations of the Central POTA Review Committee, giving he of opinion that there is prima facie case under POTA against A4 and is A5. 9. During the hearing of Exh.P-343 and Exh.D-54 and while passing common order thereon, on 17th January,2006, the POTA Court was required to adjourn the matter in view of the Advocate for A4 and A5 had sought time and the POTA Court continued hearing and passing of the order on 23rd January, 2006. By the completed on the said date, POTA Court, for the reasons stated therein, disposed of the said application. order The POTA Court held that, no case for withdrawal under Section 321 of the Code was made out. 10. A5 preferred S.L.P. No. 187 of 2006 before the Apex Court against the order of this Court dated 24th October, 2005 contending that in the light of report of Review Committee, he ought to have been discharged without following the procedure as laid down under section 321 of the Code. After grant of leave, the said was numbered as Criminal Appeal No. 359 of 2006. The same was clubbed along with 9 S.L.P. conf.5.09 the other matters of accused persons from Godhara Fire incident. It was later on disposed of by the Apex vide order dated 21st October 2008 with following observations in paragraph 51. "We therefore Court hold once the Review Committee on review under section 2(3) of the Repealing Act, expresses the opinion that that is no prima facie case for proceeding against the accused, in cases in which cognizance has been taken there by the Court, such cases shall be deemed to have been withdrawn. The only role of the Public Prosecutor in matter is to bring to the notice of the Court, the direction of the Review Committee. The Court the on satisfying itself as to whether such an opinion was rendered, will have to record that the case stands withdrawn by virtue of section 2(3) of the Repealing Act. The Court will not examine the correctness or propriety of the opinion nor exercise any supervisory jurisdiction in regard to such a opinion of the Review Committee. But we make it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the Court where the proceedings were pending, will continue with case as if there had been no such the opinion." 11. Relying upon the said observation, A4 and A5 preferred Application Exh.D-116, for exonerating them the charges framed against them on the basis of report given on 10th May 2005 by Review Committee from of



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POTA. That application was allowed. It is held that prosecution against said A4 and A5 is deemed to have withdrawn as per clause (a) of sub-section 3 of section 2 of Prevention of Terrorism (Repeal) Act, been 2004. the said A4 and A5 were ordered to be released if otherwise not required to be detained in Thus, connection other case, with further rider that the case against the said accused would be revived in the event with some of this court 10 conf.5.09 setting aside the said opinion given by Review committee on POTA in a writ proceeding preferred by aggrieved party. 12. The prosecution on 2nd December 2008 preferred above referred Writ Petition No.2539 of 2008 for quashing and setting aside the direction given by the POTA Review Committee on 10th May 2005. Similarly,December 2008 the prosecution preferred above referred Criminal Appeal No.4 of 2009 on 22nd under 378(1) of the Code against the order dated 17th November 2008 discharging A4 and section A5. 13. In view of the deemed withdrawal of prosecution against A4 and A5 and their consequent release from the POTA Special Case No.1 of 2004, thereafter, proceeded against the remaining accused i.e. accused no.1 case, Syed Mohammed Hanif Abdul Rahim, accused no.2. Ashrat @ Arshad Shafiq Ahmed Ansari and accused no.3 Fehmida wife of accused no.1 Syed Mohammed Hanif. At the conclusion of the said trial, the learned trial Judge held that out of the charges framed against said A1 to A3, each of them was guilty for commission as described in the table given hereinbelow and sentenced each of them for respective offence of offences for which they were found guilty, as stated in the third column against the respective offence mentioned in second of the said column table : 11 conf.5.09 Sr.No. Found guilty and Sentence awarded for the same Or the convicted for the count of offence of charge 1. 120B of IPC Death & fine Rs.5000/- I.d.R.I.for 2 yrs each. 2. 120B r/w 302 IPC Death & fine Rs.5000/- I.D.R.I.For 2 yrs each 3. 120B r/w & 307 IPC Life and fine Rs.5000/- I.d. R.I.For 5 yrs 4. 120B r/w sec .427 R.I.for 2 yrs IPC 5. 120B r/w sec,.3 (2)(a) R.I. For 2 yrs of POTA Act 6. Sec.3 (3) of POTA Imprisonment for life fine Rs.5000/- Act I.d.R.I. for 2 yrs 7. Offence punishable Imprisonment for life. u/s 4(b) of POTA Act 8. Sec.5 r.w. 9(B) of R.I. for two years Explosives Act 1884. 9. Sec.3 of Explosives Imprisonment for life Substances Act,1908



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10. Sec.4 of Explosive R.I. For 20 yrs Substances Act. 11. Section 3 of R.I. For 5 yrs fine Rs.1000/-I.d. Prevention of R.I.for 6 months Damage to Public


Property Act, 1984 12. Sec.4 of Prevention of 7 yrs fine Rs.2000/- I.d. R.I. 6 damage to public months. Property Act, 1984 However, by the same judgment and order, the learned trial Judge also came to the conclusion that the said accused were not guilty 12 conf.5.09 for the remaining offences for which they were charged and acquitted them from the said charges framed against them. 14. The reference made by the learned trial Judge for confirmation of death sentence given to each of the aforesaid accused has given rise to above stated confirmation case No.5 of 2009. 15. Accused no.1 has challenged the judgment and order convicting and sentencing him by preferringAppeal No.880 of 2009. While Accused no.2 has challenged the judgment and order convicting Criminal and sentencing him by preferring Criminal Appeal No.857 of 2009. While Accused no.3 has challenged the judgment and order convicting and sentencing her by preferring above stated Criminal Appeal No.1128 of 2009. 16. The said charge sheet giving rise to registration of said POTA Special Case no. 5 of 2004 was submitted Investigating officer ACP Shri.Walishetty (PW 103) at the end of investigation of four by Chief different crimes registered with four different police stations regarding an attempt to commit explosion and three explosions committed by using the bombs within the area under concerned police station. For the sake and convenience necessary details regarding the same can be tabulated as under :- 13 conf.5.09 Sr. Attempt or Bomb Date & Crime For Offences Effect of No. Explosion planted Time No.regd with under incident/ at in of police Stn. explosion incident upon FIR of 1. Seepz bus BEST 2ndDec, C.R.No. Indian Penal Nil as bomb Depot Bus 2002 400/2002 of Code,Explosives was defused MIDC no.MH01 at 21.40 MIDC police Substances before (Attempt) - 8765 of hrs station Act,Indian explosion Route API Tanaji Explosives Act. No.336 Jadhav PW63 2. Karani BEST 28thJuly, C.R.No. ..do..and also 2 persons lane, LBS Bus 2003 . 235/03 Prevention of killed, 60 junction No.MH-0 21.10 hrs Ghatkopar Damage to Public passengers Ghatkopar 1-H-8246 police Stn. Property Act. were injured Route no. Bus 2 auto 340 conductor rickshaw and 2 Dilip motor cycles Wankhede PW 54 shops and several damaged of public and privateIndian Kanoon - http://indiankanoon.org/doc/126463415/ 7

property of value to the tune of Rs. 16.30 lacs


3. Zaveri Motor 25th C.R.No. Penal Code & 36persons Bazar near taxi August, 201/03 Indian Explosives killed, Mumbadevi No.MH-0 2003 at of L.T. Marg Act. 138 were temple 2-R-2022 12.40 hrs Police Stn. injured, another taxi property worth driver Shri. of 95 lacs Lalsaheb including 41 Singh PWvehicles shops, 27 and residential houses were damaged. 4. Gateway Motor 25th C.R.No. Penal Code, 16 persons of India, Taxi August, 206/03 of Explosives killed, MH-02- 2003 at Colaba Substances Act, 46 injured, Mahal R-2007 13.05 police Explosives Act, Opp.Taj 20 Hotel hrs station P.C. Prevention of damaged, Camilo Reis Damage cars to PW 14. Public Property Act and POTA Act . 14 conf.5.09 17. In all 54 persons were killed and 244 persons were injured and the property worth Rs. 1,60,00,000/was damaged in said three incidents of explosion caused by means of bombs. Investigation in the above four C.Rs. registered at concerned police stations were initially carried out at the said Police Stations. However, no clues regarding culprits involved in crime registered with MIDC as well as Ghatkopar Police Station was forthcoming even until occurrence of incident of explosion at Zaveri Bazar and at Gateway of India and or the A2 was arrested during the investigation of crime registered with Ghatkopar Police Station on 31st until of August, 2003. For the sake of convenience the details pertaining to the initial investigation are narrated while considering the prosecution evidence regarding respective incidents. The investigation of the said four crimes registered at the said police stations was afterwards taken over by the Crime Branch by registering crime of DCB CID as shown in the table given below number : Sr. Original CR Number registered with Police DCB CID CR Nos. No. Station 1 C.R. No.400/02 of MIDC Police station CR 157 of 2003 2 C.R.No.235 of 2003 of Ghatkopar Police CR No.75 of 2003 StationIndian Kanoon - http://indiankanoon.org/doc/126463415/ 8

3 C.R.No.201 of 2003 of L.T.Marg Police CR No.91 of 2003 Station 4 C.R.No.206 of 2003 of Colaba Police Station CR No.86 of 2003 15 conf.5.09 ARREST OF ACCUSED NOS.1, 2 & 3 :18. Upon receipt of secret information Police Officers of DCB CID of Unit-XI regarding the suspicious of Accused No.2 Ashrat (hereinafter referred to as `A2'), A2 was apprehended by the team behaviour of Police Officers consisting PI Savde, PSI Talekar (PW-98), PSI Kandalgaonkar (PW-99), PSI Vankoti PSI Toradmal (PW-51) and the staff members on 31.8.2003 at about 15:30 hrs. A2 was (PW-97), thereafter interrogated by said Police Officers and during interrogation clue was received regarding extensively his involvement in planting of bomb in Ghatkopar BEST Bus. A2 was then formally arrested at about 20:20 hrs.PSI Todarmal (PW 51). Under arrest cum seizure memo (Exh. P-385) prepared in presence of by panchas Ingrulkar (PW-50) and Shri Vijay Kadam, the articles found during the personal search of A2 Mukund were seized. 19. The said articles seized during the search were i)motor driving licence in name of A2 Ashrat Ansari Ahmed Ansari. ii)identity card issued by Janata Party in the name of A2 as member of said Shafiq party. paper cuttings of Urdu News paper. iv)A white paper chit bearing some matter in Urdu language iii)Four on one side and the 16 conf.5.09 telephone No. 6391553 on other side. v)a white paper chit bearing the name of Jahid Yusuf Patni (APPROVER PW-2) with his e-mail address [email protected]. vi)A visiting card of Noor Electricals owned by S. M. Hanif (Accused No.1) and A.B. Shaikh with the Mobile No. 9892077831-9892451164 of Nasir and Land- line No. 28527761 of Hanif mentioned on the overleaf of the above visiting cards. vii)Seven passport size photographs, cash amount of Rs. 2,200 and other miscellaneous articles. 20. A.2, thereafter, during the interrogation effected in the Office of Unit No.XI situated at Kandivali, gave that A2 along with his associates i.e. deceased accused Nasir, A1 and A3-wife of A1 had prepared clue bombs and placed the same in BEST bus of Route No. 336 on 2.12.2002 at Seepz and in a BEST bus of Route No. at Ghatkopar on 28.7.2003. He also made a statement revealing his willingness to show the place 340 where the remaining material out of material used for preparing Bomb was kept by him. The same was recorded as (Exh. P-393). A2 thereafter led Police Officers and panchas towards his house on first floor of the hutment in Juned Nagar, Juhu Galli, Andheri (West), Mumbai, entered in the room and produced a tin box kept below the which contained 30 gelatin sticks, 3 alarm clocks, and 8 detonators. The same were seized by PSI cot 17 conf.5.0 9 Vankoti (PW-97) in presence of panchas Sunil Bhatia (PW-53) and Sameer Sayar vide panchnama (Exh.P-393A). 21. After returning to the office of DCB CID Unit-XI along with said panchas and police A2 again informed Officers that he would show them the place where the bombs were prepared by him and the Police his associates. A2 thereafter led police officers and panchas towards the house of A1 Hanif and A3 Fehmida Salim Chawl, Room No. D-7, Chimat Pada, Marol, Andheri (East), Mumbai. A1 & A3 were in situate at the house along with their two daughters Farheen and Sakira. A2 Ashrat led Police Officers and said panchas loft of the room where bombs were prepared by him and his associates. Police Officers towards thereafter took search of house of A1 and from the cupboard seized about ten documents/articles.Indian Kanoon - http://indiankanoon.org/doc/126463415/ 9



22. The same were i) passport of A1 bearing No. Q-548661, dated 15.10.80 issued by Mumbai Passportii) Passport in the name of A1 bearing No. P-468148, dated 11.9.93 issued by Jeddah Passport Office. Office. iii)Passport in the name of A3 bearing No.A-3581902, dated 6.8.97 issued by Mumbai Passport Office. iv) Passport in the name of Farheen Mohd. Hanif Sayyed (daughter of A-1 & A-3) bearing No. A-3525401, dated issued by Mumbai Passport 18 6.8.97 conf.5.09 Office. v) Passport in the name of Irfan Hanif Mohd. Sayyed (son of A-1 and A-3) bearing No. A3527645, dated 8.8.97 issued by Mumbai Passport Office. vi) Photo identity card of a person resident of Philton, Dubai, Jumeria.vii) Visiting card of Arun Vaswani mentioning the phone numbers of Chetan, Ashwin, Masjid,Shafiq Ansari, Shiraj Electricals on the overleaf of the card. viii) Visiting card of Aziz in the name Ashrat of Mumbai Motors and the name of Nasir and his Mobile No. 9892451164 mentioned on its overleaf. ix) Visiting card of Noor Electrical owned by S.M. Hanif and the name of Nasir with his Mobile No. 9892077831 mentioned overleaf. x) Wallet containing cash of Rs.127 and driver badge of Cab bearing No. 62652. 23. A2 thereafter pointed a water tank adjacent to North-East wall of the home of A1 and one gunny bag containing some material kept near the water tank. On opening the said gunny bag, it was found containing i) aluminum clips kept in one cloth bag of Khaki colour. ii) soldering machine along with plug and wire. 125 iii) 9 alarm clocks in various sizes of Fengseng Co. iv) one clipper of Super Eagle Co. (12 m.m.) v) One polyester Yarn role of white colour. vi) One solder wire role. vii) One Polyester Yarn fitting machine Filament (Super make.). Viii) 16 crackers of red eagle colour. 19 conf.5.09 24. One cardboard box was also found kept on the mezzanine floor. On opening the same, it was found containing 117 gelatine sticks with "Nobel Gel-80 necl Hingani Vardha" mentioned on each stick. So also one corrugated box wrapped in cloth was found kept on the water tank and on opening was found containing 12 electronic detonators. All said articles were seized by Police in presence of panchas vide panchnama (Exh. P-394-A) which was concluded at about 2.35 hrs. on 1.9.2002. A1, his wife A3 and their daughter Farheen were arrested in connection with BEST Bus Bomb Explosion Case of Ghatkopar registered vide C.R. No.75 under custody memo. The arrested accused persons along with the seized articles were taken to the of 2003 office of DCB CID, Unit XI at Kandivali. 25. After taking some rest after reaching Office of Unit No.XI, A1 led Police Officers to the place where the gelatin sticks were hidden by him. He had taken police officers and panchas towards Chimat Pada, in a lane Maheshwari Hotel and pointed out Room No. 14 in Salim Chawl which was found locked. A1 near Hanif the lock with the key in his possession and entered the room. He was followed by police officers opened and panchas. A1 took out yellow coloured gunny bag which was kept below the cot and 58 gelatin sticks were 20 conf.5.0 9 found in the bag and the said sticks came to be seized vide panchnama (Exh.P395A) 26. After arrest of A 1 to 3 they were produced before Special Court on 1-9-2003. At that time A 1 made complaint of ill-health and he was thereafter taken to Bhabha Hospital at Bandra for medical treatment and getting discharged from the hospital he was produced before the Special Court on 2-9-2003. He was after later on remanded to Police custody till 15-9-2003. On 1-9-2003 A2 and A3 were already remanded to the police by special court. Since it was revealed from the school record of Accused Farheen (daughter of Acustody 1nd A-3) that she was minor at the time of commission of offence, she was produced before the a Juvenile at Court Dongri, Mumbai. 27. Accused No.2, during his interrogation by ACP Shri Walishetty (PW-103) Investigating into the offence of Ghatkopar BEST bus bomb blast, disclosed that he himself, A1, wife of A1 i.e. A3 and their daughter were involved in the offence of bomb blasts. A2 on 4-9-2003 expressed his willingness to Farheen give


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confession. The same was apprised by IO Shri Walishetty to Joint C. P. (Crime) who directed DCP Shri Lokhande (PW-88) of Zone-X to record the confession of Accused No. 2 Vinod Ashrat. 21 conf.5.09 28. On 11-9-2003, PW-103 produced A2 before PW-88 DCP Zone-X. He complied with the formalities of recording confession amongst other explaining A2 that he was not bound to make confession and if A2 makes it could be used against him. A2 was given 24 hours time for reconsideration of his decision to the same make the confession and in the meantime A2 was lodged in the lock-up of Bandra-Kurla Complex Police Station. produced on the next day i. e. on 12-9-2003 before PW-88 and he was again apprised by PW-88 A2 was thatwas not bound to make the confession and if he makes the confession, the same would be used as he evidence against him. Upon such appraisal, A2 stated that the time given to him for reconsideration was sufficient and he reiterated his desire to make the confession. Confession of A2 was thereafter recorded by PW 88 - xh.501A. A 2 was then produced before Chief Metropolitan Magistrate on the same day i. e. on 12-9E 2003his separate statement confirming that his confession was recorded by C. M. M. A 2 in the said and confession gave all necessary details pertaining to the role played by him and his associates in the bomb blasts at Ghatkopar, Mumbadevi and Gateway of India. 29. Prior to occurrence of bomb explosion near Mumbadevi Temple at about 12.40 hours A2 had communicated to deceased 22 conf.5.09 Accused Nasir on his Mobile 9892451164 through STD booth of PW-28 Dilip Yagnik on telephone No. 65389009 that he had kept the goods in the taxi near Mumbadevi Temple and work will be done. Exh. P284 is the print out of the above call. 30. Accused Nasir had purchased SIM card of Airtel bearing No. 9892451164 from a shop i. e. Raj Electronics at Marol. Delivery challan as well as enrollment form to such effect i.e. Exh. P-276 and Exh. respectively were collected by IO. Accused Nasir had also purchased another SIM card of P-278 Airtel No. 9892077831 from Karishma Electronics at Marol. Exh. P-275 is challan of the said bearing purchase. PW-5 Ashok is the proprietor of Karishma Electronics and PW-4 Anil is the owner of the Raj Electronics. Their statements were recorded by IO. ENCOUNTER INCIDENT 12th September, 2003 31. Police Officers in search of wanted accused Nasir received the information that the said accused along his associates was likely to come near Ruparel College in a Maruti-800 car with Arms, with Ammunitions, on 12th March 2003. PSI Sachin Kadam (PW-1), API Ahir, PSI Sabnis along with other and Explosives staff went to 23 conf.5.09 the said place at Matunga (West) on the said day and laid a trap. As accused Nasir driving a Blue coloured Maruti-800 came at the said spot, the Police Officers asked him to stop the same. However, he paid no heed to same and persons in the car started firing from the revolvers towards the Police. PW-1 Sachin Kadam the was compelled to open firing in retaliation upon Nasir and his associates due to which Nasir and his associates Hasan Habib sustained injuries. Both of them were taken to KEM Hospital in mobile van but they were declared brought dead by the doctors. 92 Gelatin Sticks, 8 Detonators, 2 Alarm Clocks and wire cutter were in the said Maruti-800 car bearing No.BLMfound 6184. 32. LAC Case No.487 of 2003 for the said contraband material found in the said van and seized and a separate Crime No.225 of 2003 regarding said encounter incident was registered at Shivaji Park Police Station. The Maruti car along with explosives therein was seized by the said Police Station at the time of said preparing



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inquest panchanama Exhibit-P-254. Two revolvers, mobile phone, two SIM cards, two credit cards, two driving licences, election cards and some chits were found on the dead body of Nasir and the same were seized. 24 conf.5.09 Recording of Confessions of A1 & A3 33. A1 and his wife A3 while in Police custody on 16th September 2003 expressed willingness to give the confession. Joint Commissioner of Police (Crime) directed DCP Shri Lokhande (PW-88) to record confession DCP Ms. Archana Tyagi (PW-90) was directed to record confession of of A1 and A3. 34. On 22nd September 2003, PW-88 complied with the formalities for recording confession of A1 and on the day recorded first part of his confession (Exhibit-P-501). Similarly, after following necessary same procedureSeptember 2003, PW 88 recorded the confession of said accused. Thereafter, on 25th on 24th Septemberwas produced before the Chief Metropolitan Magistrate and his statement (Exhibit-P-623) 2003, A1 was recorded by the Chief Metropolitan Magistrate. Thereafter, confession of A1 was forwarded to POTA Court September 2003 vide covering letter Exhibit-506on 26th B. 35. On 22nd September 2003, PW-90 complied with the formalities for recording confession of A3. She recorded first part of her (A3) confession (Exhibit-P-522). PW-90 again took further 25 conf.5.09 proceedings on 24th September 2003 for recording confession of A3 produced before her and recorded second part of her confession (Exhibit-522-A). A3 was thereafter produced before CMM on 25th September 2003 and statement regarding the confession was recorded by the CMM and along with the same her confession her was forwarded to the POTA Court. 36. During the investigation, it was noticed that the arrested accused persons and their associates were involved in the commission of the above four offences. Considering the magnitude of the offences and nature criminal conspiracy hatched Joint Commissioner of Police (Crime) Shri Satyapal Singh appointed of the ACP Suresh S. Walishetty (PW-103) as Chief Investigating Officer to do the investigation in connection Shri with four offences of bomb blasts and the officers of the concerned Police Stations were directed to all the assistWalishetty in the investigation. A1 to A3 were lodged in Mumbai Central Shri Prison. 37. SEO Shri Waman Sapre (PW-52) on 1st October 2003 at Mumbai Central Prison conducted the test identification parade of A1 to A3. PW-6 Anil Mulchand Vishwakarma, a carpenter by profession was witness in resepct of Ghatkopar incident. He identified A2 and 26 conf.5.09 A3 being the persons with whom he had quarrel while getting down from the BEST bus route no.340 at Marole Pipeline Stop while he was returning to Ghatkopar from Andheri. Exhibit-P-389 is the memorandum of the said parade prepared by SEO PW52. 38. PW-52 held another identification parade at Mumbai Central Prison on 11th October 2003 for A1 and A2connection with Ghatkopar incident. Mr.Dilip Wankhede (Conductor of the bus) (PW-54) identified A2 in at said parade as being the person who had boarded the BEST bus route no.340 at Andheri bus stop the alongone Burkha Clad Lady with her face uncovered to whom he had issued ticket for Asalpha bus stop with and person who had taken the seat along with the said lady at the rear side of the bus. Further the identification on the same day was held at Byculla District Prison (where she was shifted) by the parade for A3 same witness. At the said parade PW-54 identified A3 as being the Burkha Clad woman with face uncovered who boarded the BEST bus of route no.340 at Andheri stop along with the person who had taken BEST had bus for Asalpha stop. Exhibit-P-391 is memorandum prepared of the said parade held at Arthur Road ticket and Byculla Prison.



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39. The Special Metropolitan Magistrate Shri Madhukar Bodake (PW-18) on 6th February 2003 conducted the identification parade 27 conf.5.09 for A1 and A2 at Mumbai Central Prison in connection with CR No. 206 of 2003 of Colaba Police Station (Gate Way of India incident). The witnesses Nafiz Ahamed Khan (PW-19), Shivnarayan Pande (PW-15) and Ramchandra Shitalprasad Gupta (PW-20) participated in the said parade. On 25th July 2003 A1 had been to house of A2 and the rickshaw was wrongly parked by A1 in front of the shop of PW-19 and on that the count was a quarrel between A1 and the said PW-19. PW-19, the owner of a garment factory at Juhu there Lane, Nagar, Andheri (W), Mumbai near the residence of A2 and had seen A1 many times coming to Samata the of A2, identified A2 in the said parade as being the person residing adjacent to his shop since long house and friend of was A1. 40. PW-15 Shivnarayan Vasudev Pandey was the owner of the taxi bearing No. MH-01-R 2007 and was driving his taxi in Mumbai since the year 1982. Encountered accused Nasir on 24th August 2003 had engaged taxi when parked opposite Amber Oscar Cinema Hall at Andheri. He had engaged the said taxi the said for Rs.600/- for going to the places such as Haji Ali, Hanging Garden, Aquarium, Gateway of India and Rani and the said taxi was brought by PW 15 with the said accused at Azad Galli, Andheri (W0. Baug Thereafter, wife Fehmida and their two daughters had travelled in the said taxi from 28 Nasir A-1, conf.5.09 Azad Galli to Colaba for visiting places and returned and A1, his wife Fehmida and their two daughtersin the said taxi of PW-15 Shivnarayan Pandey again on 25-8-2003 from Azad Galli, Andheri travelled (West) to Colaba. A1 had kept one airbag in the dickey of the taxi and asked the taxi driver to take the taxi towardsBunder Road at Colaba and to park the said taxi in front of Hotel Taj in pay & park site. The Arthur same had instructed the witness to stay in the taxi till the arrival of A1 and his family members. PWaccused 15 Shivnarayan identified A1 in the above parade saying that he was the same person who put his airbag in the dickey of the taxi and asked him to take the taxi towards Arthur Bunder Road at Colaba and park the same in front of Hotel Taj in pay & park site and should not leave the taxi till his arrival. 41. PW-20 Ramchandra Shitalprasad Gupta has also identified A1. He claimed to have seen A1 along with his and two daughters travelled in his friend's ( Shivnarayan Pandey) taxi. PW 20 however did not wife identify above parade. Exh.-P-323 is the memorandum of the above TIP which was held on 6-10-2003 A2 in the in Mumbai Central Prison. 29 conf.5.09 42. The Special Metropolitan Magistrate Madhukar Bodake (PW-18), on 6th October 2003, held identification parade at Byculla District Prison, regarding A3. The same witness i.e. PW-15 Shivnarayan Pande, identified woman travelling along with her husband and two daughters in his taxi on 25th August 2003. A3, as the He mentioned about parking of that taxi at Gate Way of India in Pay and Park site in front of Taj has Hotel. Ramchandra Gupta (PW-20) and Nafis Khan (PW-19) also identified A3 in the said parade. Exhibit-324 is the memorandum panchanama of said parade. 43. Special Executive Officer Shri Sudhir Surve (PW-59) on 8.10.2003 in connection with C.R. No.157 of held identification parade of A1 & A2 at Mumbai Central Prison for witness Manoj Patil (PW2002 60). PW-60 identified A1 as a person who was in the queue ahead of him for boarding BEST bus Route No. 312 at about 5.30 p.m. on 2-12-2002 at Seepz Bus depot and as the person who had handed over a cloth bag to A2 had later on occupied a seat on the rear side of the said bus and thereafter A1 having left the who stop. 44. Shri Dilip Masram (PW-62), conductor of the same bus Route No. 312, also identified A2 as a person whoa quarrel with another passenger at Seepz Bus depot and he pacified the person who 30 conf.5.09 had



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along with a cloth bag had taken the seat on the rear side of the bus. PW-62 however did not identify A1 at the TI parade. The memorandum of the said TIP prepared by PW-59 is Exh.Psaid 415. 45. Special Executive Officer Shri Dushant M. Ozha on 9.10.2003 at Mumbai Central Prison had conducted identification parade of A1 and A2 for five identifying witness. At the said parade, PW-28 Dilip Yagnik at STD/PCO Booth of Kantilal Jain situated at 5, Vitthal Wadi, Zaveri Bazar, Mumbai- 400 working 002 identified A2 as a person, who, on 25-8-2003, at about 12.10 hrs., made telephone call from his PCO to one saying that he had kept the goods in the taxi near Mumbadevi temple and work would be Nasir done. Similarly, witness Harish (PW-30), who was present near Mumbadevi Temple area on 25-8-2003 for hiring returning to his home at C.P. Tank claimed to have seen taxi No. MH-01 H-2022 halted at taxi for Zaveri He claims that he tried to board the said taxi but he was told that taxi was not empty and directed Bazar. him ahead and shortly thereafter there was an explosion in the same taxi. PW-30 had identified A2 as to go being the same person who had shouted at him and asked him to go away. Kunjbihari Ramprasad Pandey (PW29) Kutty Manappa Shetty (PW-33) hawkers doing business at Dhanji Street Naka has identified A2 at and the parade as a person who had a 31 conf.5.09 said quarrel with one Nasir in the area of Dhanji Street Naka at about 6.00 p.m. on 24-8-2003 and they had a uarrel with one motor-cyclist and the quarrel was separated by the above hawkers. The Memorandum of q the TI parade prepared by PW-41 being Exh. P-192. said ABOUT APPROVE R 46. The charge sheeted Accused No. 4 Jahid Patne soon after the three bomb blasts had watched news item on television in Dubai. He became restless and was unable to sleep after knowing that several persons lost their and many persons were injured in the said blasts. He started repenting for his misdeeds. He then went lives to local Masjid and apprised Maulana by name Jafar Sahab that he was repenting for his act of having participated in the conspiracy of causing bomb blasts in India. He was told by Maulana that due to his illegal persons including woman and children of both religions (Hindu and Muslim) were killed and it act, the was against the Muslim religion. He thereafter decided to return to India to surrender before police and accordingly returned to India on 1-10-2003. He was appraised by his family members that police from BandraBranch had been to his house for making inquiries. Hence, he along with his elder brother went to Crime the office of Bandra Crime Branch. Chief IO PW-103 made 32 conf.5.09 inquiry with said accused No.4 Jahid and received credible information that Jahid was one of the conspirators of the offences of bomb blasts. PW-103 arrested him on 2-10-2003 in DCB, CID C.R. No. 75/2003 and produced before the Special Court. He was remanded to police custody till 17-10-2003, which was later on extended upto 30-10-2003. 47. During the course of interrogation Accused No. 4 Jahid expressed his willingness on 16-10-2003 to give his confession. On 21-10-2003 he was produced before Shri Dhananjay Kamlakar (PW-12) DCP of ZoneVII.took proceeding for recording the confession, Part-I (Exh.P-264). PW-12 took further proceedings on He the day when accused No.4 was produced i.e. on 23-10-2003. After following the due procedure, next confession recorded - Part-II (Exh. P-264A). Accused No.4 on the same day was produced before C.M.M. of A4 was and statement was recorded by C.M.M. confirming the contents of his confession. The CMM then his forwarded the confession of accused No.4 to Special Court. Accused No. 4 Jahid was remanded to judicial custody on 30-10-2003. 48. The Officers of DCB, CID, Unit-VII received reliable information about the involvement of charge sheeted Accused No.5 33 conf.5.09 Batterywala and Accused No. 6 Ladduwala (present A4 & A5 at trial) in the explosion of bomb blasts at Gateway of India and Zaveri Bazaar. Both these accused were arrested in Ghatkopar area by the Police



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Officers of Unit No. VII on 5-11-2003 and they were produced before the Special Court on the same day. Special Court remanded both the Accused persons to police custody till 19-11-2003 which was further extended till 1-122003. 49. During interrogation on 10-11-2003, A-5 Hasan Batterywala made a statement showing willingness to show the place where the explosives were kept by him. The Memorandum (Exh.-297) regarding said information was drawn. The said Accused No. 5 led IO and panchas towards his Battery shop at KolhapurL.B.S. Road, Kurla (W), Mumbai and from said shop he produced 3 gelatin sticks and RDX Garage, powder 750 gms. kept in one cardboard box. The said articles came to be seized in presence of panchas weighing vide panchanama (Exh. P297A) 50. On 13-11-2003 Accused No. 6 Ladduwala, informed the IO that he would show the place where the explosive material was kept by him which was used while exploding bombs in Zaveri Bazar and at Gateway In consequence of above information, 2 detonators 34 of India. conf.5.09 came to be seized by IO from a hut situated at Gulshan Nagar slum area near Shahad Railway Station, Shahad (E), District Thane vide panchanama (Exh. P291A). 51. Charge sheeted accused No. 5 Batterywala and accused No. 6 Ladduwala on 14-11-2003 expressed willingness to give their confession and the same was apprised by Chief IO (PW-103) to Joint C.P. (Crime)turn respectively directed DCP Shri Amitabh Gupta (PW-89) and DCP Shri Ankush Shinde (PWwho in 91)record the confession of respective accused persons. Accordingly DCP PW-89 recorded Part-I (Exh. Pto 516) the confessional statement of charge sheeted Accused No. 5 Batterywala on 25-11-2003 and part-II of the confession (Exh. 516A) on 27-11-2003 by following the due procedure. On the same day, Accused No. 5 atterywala was produced before the Chief Metropolitan Magistrate. Similarly DCP PW-91 recorded Part-I B of confessional statement (Exh. P-532) of Accused No. 6 Ladduwala on 25-11-2003 and part-II of the the confession (Exh. P-532A) was recorded on 27-11-2003. On the same day Accused No. 6 Ladduwala was produced before C.M.M. Both the accused persons narrated the whole story before DCP involving themselves co-accused persons in the commission of offence of bomb blasts. 35 and other conf.5.09 52. The investigation of all the four offences transpired that A1 belonged to terrorist organization i.e. Lashkar-E-Toyaba. He had committed terrorist activities in Mumbai. He came to India from Dubai and withhelp of his wife A3, deceased terrorist Nasir Ahmed Ansari, A2, original A5 and A6 committed the terrorist acts in Mumbai city by exploding the bombs. In pursuance of the criminal conspiracy hatched by A1 to A6 wanted accused persons, i) A2 planted timer bomb in BEST bus bearing No. MH-01- H-8765 at Seepz and on 2-12-2002 and ii) A2 with the help of A3 planted bomb in BEST bus of Route No. 340 on 28-72003. iii) A2 on 25-8-2003 also planted bomb in motor taxi bearing No. MH-02-R-2022 near Mumbadevi and iv) A1 with the assistance of his wife A3 planted bomb in motor taxi bearing No. MH-02-R- 2007 which was exploded at Gateway of India at about 13.10 hrs. on 25-8-2003. As a result of said three bomb explosions 54 persons were killed and 244 persons sustained injuries and property worth Rs. 1,60,00,000 was damaged. 36 conf.5.09 Sanction under POTA


for

prosecution


15


53. After receiving reports of Forensic Science Laboratory and reports of Joint Controller of Explosivesthe examination of seized material; and after getting postmortem reports/Provisional Cause of regarding Death Certificates of the deceased persons and the injury reports of the injured persons; and after receipt of the consent of the Central Government for prosecution of the accused persons under the provisions of the Explosive Substances Act, 1908 and after receipt of the reports from various agencies regarding the assessment/valuation of the damaged property, the Chief Investigating Officer PW-103 submitted proposal to Government of Maharashtra for according sanction to prosecute the accused persons under the provisions of Prevention of Terrorism Act, 2002. After having examined the material placed along with the proposal, the Government of Maharashtra on 04-02-2004 was pleased to accord sanction to prosecute Accused Nos. 1 to 6 under Sections 3, 4, 5(1) and 20 of Prevention of Terrorism Act, 2002. 54. After receiving sanction under Section 50 of POTA, 2002 for prosecution of charge sheeted accused Nos.1 Chief IO PW-103 submitted charge sheet on 5th February, 2004 against A1 to 37 to 6, conf.5.09 A6 (including PW-2) as stated earlier for commission of offences under Section 120-B, r/w Sections 302, 307, 324 IPC, u/s 3, 4, 5 of Explosive Substances Act, 1908, u/s 5 and 9(B) of India Explosives Act, 1884, 326, u/s4, 5 and 20 of Prevention of Terrorist Act, 2002, along with absconding accused Shafakat, Abid, 3, Khalid, Jahangir, Bilal, Samiulla and Rehman named in the charge sheet. Upon filing of the said Maqsud, chargecognizance was taken by the Special Court and above stated POTA Special Case No.1/2004 sheet, was registered. As stated earlier, charge sheeted accused No.4 being accorded pardon on the basis of prosecution application, he was examined at the trial as PW-2. While charge sheeted accused Nos.5 & v6 were renumbered as A4 & A5. 55. On 29-6-2004 the charge as described in detail in Exh. P-5 was framed against A1 to A5 for commission under eight different heads i.e. from head Firstly to Eighthly for offences under Section i) of offences 120-B r/w 3, 4, 5(1) & 20 of POTA Act so also r/w. Section 302, 307, 427 of IPC and Section 3 of of IPC, Explosive Act, Section 9(B) of the Explosive Act, 1884 and Section 3 of Damage to Public Property Act. Substances ii) of POTA Act, r/w. Section 120-B IPC. iii) 3(3) of POTA Act. iv) 120-B of IPC r/w. S. 302, 307 of 3(2) IPC S. 3(2), 3(3) of POTA, 2002 and Section 4 of Damage to 38 and conf.5.09 Public Property Act, 1984 r/w. S. 427 of IPC and S. 3 to 6 of Explosive Substances Act, 1908 and S. 9(B) of Explosive Act, 1884. v) 302, 307, 427 r/w. S. 34 further r/w. S. 120-B of IPC, further r/w. S. 3, 4, 5 & 6 of Explosive Substances Act, 1908, and U/s. 3 of Damage to Public Property Act, and S. 3 & 4 of Prevention of Terrorism Act. vi) 302, 307, 427, r/w. S. 120-B of IPC also u/s. 5, 9(b) of Indian Explosive Act r/w. S. 3, 4, 5, of Explosive Substances Act and r/w. S. 3 of Damage to Public Property and U/s. 3 & 4 of POTA, 6 2002 accused Nos.1 to 3 only) vii) 3 of Explosive Substances Act, 1908 (against accused No.3 only) viii) (against 3f Explosive Substances Act (against accused No.5 o only) 56. All the accused Nos. 1 to 5 pleaded not guilty to the charge framed against them and claimed to be tried.prosecution at the trial adduced oral evidence of 103 witnesses. In addition to the oral testimonies of The the witnesses the prosecution also relied upon the several documents which were proved through the said said witnesses or otherwise taken on record due to consent given by the defence in response to application under Section 294 of the Code. 57. The documents taken on record and marked exhibit are as mentioned in paragraph nos.53 to 55 of the judgment of Trial Court 39 conf.5.09 under consideration i.e. the documents such as i) Death Certificates, ii) Provisional Death Certificates, iii) Postmortem Notes and iv) Inquest panchanamas of deceased persons as well as v) the Medical Certificates of injured persons vi) inquest panchnamas. vii) common panchanamas regarding seizure of blood the stained of injured and deceased. viii) map of place of offence of DCB CID Cr No. 157 of 2002, CR. No. 75 clothes of 2003, CR No. 91 of 2003 and CR No. 86 of 2003. ix) panchanama regarding destroying of RDX.


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58. As aforesaid, prosecution at the trial examined in all 103 witnesses, i.e. witnesses referred herein above also 28 more witnesses i. e. PW-23, PW-25, PW-34, PW-36 and PW-64 to PW-87 on the point that and so their nearest relatives lost lives in the twin bomb blast, dated 25-8-2003. Apart from the above witnesses PW-3 Rajendra Pawar, PW-4 Anil Parmar, PW-5 Ashok Sakpal, PW-6 Manoj Patil and PW-7 Ghanshyam examined on the point of purchase of SIM cards of Airtel bearing No. 9892451164 Dubey were and 9892077831 by Nasir and A1. PW-11 Jyotsna Chandratre was the Special Executive Officer who held TIP of photographs of slain terrorist Nasir at Colaba Police Station on 3-1-2004. PW-13 Pandit Bhandalkar has prepared the sketch of the scene of offences in CR No. 91 of 2003 and in CR No. 206 of 2003. The details of remaining prosecution witnesses being correctly 40 conf.5.09 described in detail in paragraph nos. 56 to 64 of judgment of Trial Court under consideration and the relevant qua submissions advanced before us being dealt in the further part of the judgment the same is evidence not unnecessarily narrated for the sake of brevity. 59. The accused in defence have adduced defence evidence i.e. A1 has examined himself as DW-4 and has examined 2 witnesses i.e. (DW-5) Ex-Commissioner of Police, Mumbai, Shri Ranjitsingh Sharma also and (DW-6).Ex-Home Minister of the State Shri Chagan Bhujbal. Similarly A5 has examined himself as DW-1 examined DW-2 his son Shaikh Mohd. Ismail. A5 has examined ACP Sadashiv Patil as DW-3 and has to point out that statement of PW-8 Ajmeri Mohd. Ali Shaikh was recorded by him in connection with bomb incident in Mumbai dtd. 11-7-2006. Defence has also relied upon as many as 124 blast documents/Exhibits. FINDINGS OF THE TRIAL COUR T 60. After hearing both the parties and assessing the evidence adduced at the trial, the trial Court came to the conclusion that: 41 conf.5.09 i) A1, PW-2, deceased accused Nasir and other wanted accused had hatched criminal conspiracy partly at Dubai in the month of August 2002 in the house of Nasir at Dubai and after returning to India, A1 and Nasir along with A2 and A3 had held several conspiracy the house of A1 at Mumbai for chalking out detail plan for doing bomb blasts at crowded meetings in places in Mumbai and thus conspiracy of doing terrorist acts in Mumbai was hatched partly in Dubai and partly in Mumbai. ii) sanction of the Central Govt. u/s 188 of Cr. P. C. was not necessary for trial of the accused persons for the offence u/s 120-B of IPC iii) A2 was found in unauthorized possession of hazardous explosive substances in his house at 22.40 hrs. on 31-82003. iv) A2 and A3 were found in unauthorized possession of hazardous explosive substances in their house R. No. Salim Chawl, Chimatpada on 1-9-2003 at hrs. v) on 1-9-2003 at 7.50 hrs. A1 was found D-7 in unauthorised possession of hazardous explosive substances in a room occupied by him bearing R. No. 14 Salim Chawl, Chimatpada. 42 conf.5.09



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vi) A1 to A-3 and deceased Nasir in pursuance of the above criminal conspiracy had planted timer bomb the rear seat in BEST Bus of route No. 312 (336) bearing No. MH-01 H-8765 near Seepz below BEST Bus Depot, MIDC, Andheri (E), in the evening of 2-12-2002 with intent to kill maximum number of persons travelling in the above bus and to cause loss to the public and private properties. vii) A1 to A3 and deceased Nasir in pursuance of the above criminal conspiracy had planted a timer bomb in a EST bus of route No. 340 bearing No. MH-01 H 8246 which was exploded at about 21.10 hrs. B on 28-7-2003 at Karani Lane Junction, Ghatkopar (W), Mumbai causing the death of two persons and injury to passengers and also causing damage to public and private property worth Rs. 16.30 lacs. 60 viii) A1 to A3 and deceased Nasir in pursuance of the above criminal conspiracy, planted timer bomb in a otor taxi bearing No. MH-02-R-2022 which was kept waiting at the junction of Dhanji Street, Yusuf m Ali Road, in front of Sagar Juice Centre, Near Mumbadevi Temple, Mumbai on 25-8-2003 at noon time and the powerful bomb kept in the above taxi was exploded at 12.40 hrs. causing the death of 36 persons to 138 persons and also caused damage to public and private properties worth Rs. 95 lacs. and injury 43 conf.5.0 9 ix) A1 to A3 and deceased Nasir in pursuance of above criminal conspiracy, kept timer bomb in airbag and airbag was kept in the dickey of motor taxi bearing No. MH-02-R-2007 which was parked in " Pay & Park " site opposite Hotel Taj at Gateway of India, P. J. Ramchandani Marg, Colaba, Mumbai-400 00525-8-2003 and the said bomb was exploded at 13.05 hours killing 16 persons and causing injuries to on 46 persons and causing huge damage to public and private properties. x) That valid sanction Exh. P-573 was accorded by Government of Maharashtra u/s 50 of POTA 2002 to prosecute the Accused persons. The trial Court in consonance with the said findings held that accused A1 to A3 have committed the offences as described in commencing paragraph of the judgment and sentenced them accordingly. Brief Submissions of Both Sides 61. The learned APP by and large supported the judgment under consideration and particularly finding of guilt to A3 for commission of the offences as arrived by the trial Court and sentence 44 of A1 conf.5.09 of death and the other sentences awarded by the trial Court. The crux of her submission, is that, barring not accepting the evidence of certain witnesses and sanction as pointed out by her discussed at appropriate stage, the trial Court has properly appreciated and accepted the evidence of the prosecution witness. She furtherthat considering the nature of offences committed and the purpose behind committing them i.e. urged the conspiracy hatched to commit terrorist act and commission of terrorist act as established by the prosecution fault can be found even with the sentence awarded. She submits that sentence of death evidence no awarded



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by trial Court deserves to be confirmed and no interference is warranted regarding the other sentence awarded A3. She also urged that in the event of agreement with her submission of the evidence of to A1 to particular wrongly discarded by the trial Court, then, the concerned accused whose involvement/guilt witness was for commission of offences in relevant incident is established, will be also required to be held guilty for such offences. The learned APP made elaborate submissions by taking us meticulously through the record of the for supporting her said submissions. For the sake of brevity, the relevant submissions case meriting consideration and/or discussion are narrated and considered at appropriate stage while considering the relevant evidence and/or relevant aspect. 45 conf.5.09 62. Learned APP also made elaborate submission for allowing the writ petition preferred by the prosecution and setting aside the opinion/direction given by Central Review Committee and remanding for quashing the matter back to the said committee. She also made elaborate submission for allowing appeal preferred by the prosecution against the order dated 18th November, 2008 passed by POTA Special Court, holding that the prosecution against A4 and A5 is deemed to have been withdrawn from the day the directions were given by Central Review Committee and consequently releasing them. She urged for quashing and setting aside the order and sending the matter back to the trial court for deciding the same in accordance with the law. said We elaborate this submission a little shall later. 63. Mr. Pasbola learned counsel for A3 opened the defence arguments. At the outset, he submitted that none accused have disputed the factum of bomb explosions and/or people having died or being injured and of the of severe damage caused to property in and around the place of blast. But he urged that the prosecution has failed to establish that the explosions were caused by using a particular chemical as claimed by the prosecution i.e. attempt to commit the blast in BEST Buses at MIDC Seepz and blast committed at Ghatkopar by 46 conf.5.09 using bombs containing gelatin sticks and for remaining two incidents of bomb blasts by using RDX i.e. at Zaveri Bazar and Gateway of India. 64. He further urged that though it is the prosecution case that conspiracy was hatched in Dubai, the probable period during which the same was hatched has not been specified in the charges framed at the trial. Further, conspiracy ought to be before December, 2002. Even the evidence about the same is too sketchy the said and unbelievable i.e. in the shape of evidence of the PW-2 approver and the evidence of PW-1 and the evidence of confession of accused and that too confession of the co-accused. He submits that the prosecution cannot rely on the alleged confession of approver - as he was not tried as co-accused. 65. He further urged that the incident of attempt to cause explosion was committed on 2nd December, 2002 the incident of explosion had occurred on 28th July, 2003 while the remaining two incidents while of explosion had occurred on 25th of August, 2003. By pointing out the provision of Section 219 of the Code, he urged that as per the said provision, three offences of the same kind committed within a period of one year can tried together at one trial. The trial 47 be conf.5.09 conducted for clubbing four incidents together, is illegal. He urged that such trial was and in fact caused prejudice to A3. Hence, the trial against A3 is vitiated. 66. He further urged that the charge framed at the trial is blissfully vague. It is urged that the charge for every offence as required under the law is not framed against A3. The same has caused prejudice to distinct A3. Hence, it has also occasioned failure of justice. 67. He further urged that encountered accused - Nasir has not been named as a co-conspirator in the charge as framed - though principal participant. According to the learned Counsel, the evidence regarding the death of Nasir is unbelievable. Amongst other, the SIM card recovered near the body of Nasir is not referred to in the



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charge- sheet. The evidence regarding purchase of SIM card by Nasir as well his encounter will have to be discarded. Besides, the said fact has not been established by the prosecution - relying only on evidence of PW-1 which is insufficient as the same is not substantiated, corroborated by any other evidence. 68. He further urged that the prosecution evidence does not clearly disclose as to when and how provisions of POTA was applied 48 conf.5.09 to this case. For, when A2, 1 and 3 were arrested in connection with Ghatkopar incident, POTA was applied. Presumably, it was applied later on. That was to circumvent the non-compliance of Section 51 r/w 32(5) of POTA. On this basis, it is argued that the alleged confessions will have to be excluded from consideration - eing statements of accused recorded while in police custody before application of POTA provisions. b He submits that there is serious dispute regarding the date of arrest of the accused i.e. A1 to 3. According to the prosecution, it is 31st August, 2003, whereas, the defence claims the arrest on 30th August, 2003. 69. He further submits that the defence was denied opportunity to rebut the prosecution evidence. In that, police officer (Gulabrao Pole) who had allegedly recorded confession of Accused in another case was though present in Court he was not allowed to be examined by the defence. That police officer had owned up the responsibility of planting of bomb in the other case. 70. He further submits that the prosecution evidence itself discloses that after recording of alleged confession and production before the Chief Metropolitan Magistrate, the accused was sent back to police custody. That opposed to Section 32(5) of POTA. Further, 49 was conf.5.09 the accused had partially retracted confession before the Chief Metropolitan Magistrate, but later on completely retracted the same. For all these reasons, the alleged confessions will have to be discarded, inter being opposed to provisions of POTA. alia, 71. He further submits that the incriminating portion in the alleged confessions were not put to the Accused -o enable the Accused to offer explanation. Even for that reason, the same cannot be looked t into. 72. He further urged that in the present case all the C.A. Reports, without examining any of the Chemical were admitted in evidence under Section 293 of Cr.P.C. The provisions of Section 293 only Analyser makes the reports contemplated under the same as admissible and does not dispense with the proof of the same. The material stated in the CA reports and sought to be used against A3 was not at all put to her during her examination effected under Section 313 of Cr.P.C. He further urged that as such, user of the same without an opportunity to explain the incriminating material from the same used against her has resulted giving her in causing grave prejudice to her. 73. He further urged that it was incumbent to examine the 50 conf.5.09 Sanctioning Authority who applied his mind before according the sanction for prosecution for the offences under POTA. It was urged that keeping in mind the dictum in the case of State (NCT of Delhi) vrs. Navjot alias Afsan Guru, 2005 SCC (Cri) 1715 i.e. the defence ought to have been permitted to examine Sandhu the pertaining to grant of sanction, which document being contemporaneous record alone can resolve the file issue of non-application of mind. He urged that in present case such an inspection of the file pertaining to according as well as request to examine the Sanctioning Authority was denied to the defence. Thus, of sanction fair opportunity was not given to the Accused to defend at the trial and the same has occasioned failure of justice. 74. He then urged that sanction Exhibit 568 (relating to Seepz and Ghatkopar) should be discarded as it makes no reference to the provision in respect of which the sanction is accorded.Indian Kanoon - http://indiankanoon.org/doc/126463415/ 20


75. He faintly urged that the entire trial is vitiated as the Special Judge came to be appointed after the Repeal came Act into force. 76. He also urged that there has been serious miscarriage of justice and grave prejudice to the Accused because of unfair trial. In that, the prosecutor was allowed to ask leading questions to the tutored planted prosecution witnesses, inspite of repeated objections taken by 51 conf.5.09 the defence. Not only that the Trial Judge adopted an unusual procedure of recording of entire examination in chief in question- answer format. It is submitted that the objections taken by the defence were not immediately answered. Inspite of ruling that the same will be answered at the time of final judgment, no ruling has been thereon. It is submitted that this anamoly has crept in the proceedings as the major evidence given was recorded before two different Judges. The trial Judge who pronounced the Judgment took over the case at the stage of recording of Section 313 statement. 77. He urged that articles allegedly recovered from the house of accused Nos.1 & 3 and the another owned by accused No1 are gelatin sticks. It is the prosecution case that two blasts (at Gateway of India and at Zaveri were caused by means of RDX, while gelatin was used in other two incidents. It is also case Bazar) of prosecution case that the encountered accused - Nasir had procured RDX and supplied the same. However, no investigation has been done regarding the manner in which the gelatin sticks have been procured by the Accused - which were admittedly easily available in the market and bearing the mark of manufacturer was urged that no investigation in this regard creates a reasonable doubt that the gelatin "Vardha". It allegedly from the house of Accused was a planted article. This has 52 recovered conf.5.09 caused serious prejudice to the Accused. 78. He urged that PW 103 the Chief Investigating Officer has given the evidence on the basis of written notes and not by refreshing his memory by perusing case diary/crime report. This has caused prepared serious to the Accused. His entire evidence is liable to be discarded as the same indicates that he himself prejudice has carried out any investigation. It was urged that as per the provisions of POTA all the investigations not are required to be carried out by Investigating Officer of a particular rank. The evidence collected by the Officers not authorized to investigate the offences under POTA, will be required to be discarded as the same is in violation of the provisions of law. It was urged that in the present case, the investigation was only supervised by Chief Investigation Officer of the rank of ACP. That will not cure the defect and it goes to the root of the matter . 79. It was urged that the various other deficiencies to be pointed during the course of argument will also indicate that the defence was not given proper opportunity and the trial was unfair. It was urged that the same be most relevant while considering the order of acquittal / release passed in favour of co-accused A4 would and A5. It was urged that certain documents were called for. The same were not 53 conf.5.09 furnished to the defence. That has resulted in denial of fair opportunity to the defence as also warranting adverse inference against the prosecution. In the result, the benefit of doubt should be given to drawing of the Accused and they should be acquitted. 80. Learned counsel thereafter made exhaustive submissions with regard to four incidents in question i.e. regarding the witnesses examined by the prosecution and so also regarding the encounter incident and so also aspects pertaining to the evidence of PW2 Approver, making himself as an approver by the the prosecution, grant of pardon, non recording of his statement, appointment of the Special Judge after POTA was repealed, accorded for prosecution of offences under Explosive Act and/or under Explosive Substances sanctions Act for submitting that the evidence adduced has not established guilt of A3 and/or some of the etc. evidence deserves to be excluded from consideration.Indian Kanoon - http://indiankanoon.org/doc/126463415/ 21


81. Learned counsel thus urged that the guilt of A3 is based upon very slender and unreliable evidence in the of her confession, uncorroborated evidence of PW2, confession of the co-accused and unacceptable shape evidence of her identification made by the witnesses who are either planted by the prosecution and/or in the nature of chance 54 conf.5.09 witnesses. It was urged that curiously enough "all the witnesses" who claim to have identified A3 or the other co-accused, have done so because of the quarrel, bickering ensued between the Accused and the concerned witness. It was urged that even assuming that A3 or any of the other Accused was entrusted to plant a bombit is difficult to perceive that such a person will involve himself / herself in a quarrel in the then manner It was urged that this theory propounded by the prosecution is against the grain of probability. alleged. That is a circumstance justifying the submission that the said witnesses are unnatural witnesses and have itself been planted by the prosecution. 82. Learned counsel urged that A3 is entitled to be acquitted from all charges levelled against her or at least considering the feeble nature of evidence of her identification, she deserves to be given benefit of doubt. 83. Mr. Khan Abdul Wahab, learned counsel for A1, at the outset, submitted that he is adopting all submissions advanced by learned counsel for A3 Mr. Pasbola as the same would be applicable even in the of A1. case 84. He, however, urged with regard to the incident of alleged 55 conf.5.09 encounter on 12th September, 2003, in which death of two persons (absconding accused Nasir and one more) to have occurred, the prosecution has utterly failed to establish that the dead body of the person was is said of none other than the co-conspirator Nasir. The prosecution has rested the matter mainly upon the sole evidence 1 who had lodged the said of PW complaint. 85. It was further urged in the same context that photograph of the said dead person who is said to be Nasir been shown to any of the witnesses in the present case to establish that the said dead person has not was accompanying A1 as claimed by them. It was urged that merely showing some cards of Bank containing of Nasir would not be sufficient to establish that the person killed in the encounter was photograph Nasir. 86. It was further urged that the said incident having occurred within the area of Dadar Police Station and as separate case was registered for the same, it was necessary for the prosecution to produce papers of the said case and/or examine the concerned witnesses to establish that the incident as claimed by the prosecution had in fact occurred. It was urged that the prosecution has not adduced any evidence beyond the evidence of PW1producing the inquest panchanama in the said case. Even that Panchnama has not been 56 and conf.5.09 proved by adducing any independent evidence of panch witnesses. 87. It was further urged that even assuming that two sim-cards as claimed by the prosecution were allegedly the mobiles on the person of the said deceased, still no number engrossed upon the said sim cards seized from has surfaced in the evidence for linking the said sim cards which is said to have allegedly purchased by Nasir mobile shop. It was urged that merely sim cards purchased from the shop having a particular from number be sufficient to come to the conclusion that the same were sim cards which were found on would not the person of deceased for establishing the link between A1 and said Nasir. 88. It was urged that the evidence of PW1 in paragraph 9 reveals connection of the material allegedly found the encountered person, bearing the names of certain persons. It was urged that none of the said from persons have been examined to establish the link of the said material with the said persons or for establishing identity as being the same person who was encountered. In the same context it was urged that the of Nasir said material reveals different names on driving licence or the name of the owner of vehicle as Umesh Suresh



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Nadkarni with address as 7.2 Old Hanuman Building, Second floor, Chuna Lane, 57 conf.5.09 Bombay-7 and the same being transferred to Mrs. Ayesha Shah Sayyad Hanif with Ghatkopar address. It was that the same is the case regarding election identity card which stands in the name of Abdul urged Sayyad Ali with photograph of deceased (allegedly Nasir) with address of Hyderabad. It was urged that Rahman all defects have been clearly brought out in the cross examination recorded on page the no.1136. 89. It was further urged that panchanama regarding gelatin stick being found in the house of said encountered not been produced / proved in the present case for establishing the link of the said accused has person encountered. 90. It was urged that the evidence of PW11 Special Executive Officer reveals that photograph of Nasir i.e. from the person of deceased was used for holding photo test identification parade. It was urged that taken the evidence pertaining to the said parade reveals that stock police panch Narayan Shetty was used as a panch for the said parade. It was urged that for establishing the said fact, application was made on behalf witness of defence, the same was rejected by the Court. That has prejudiced A1 and co-accused in establishing the most relevant facet of their defence that the prosecution has used stock police panch. 91. In the same context it was urged that the parade panchanama 58 conf.5.09 was prepared on a typewriter i.e. the typewriter which was used earlier by SEO for typing several documents for the same police station for which he had conducted the said parade. It was urged that even the photograph used for the said parade has not been produced. The entire evidence regarding the said parade is of dummies doubtful and so also the alleged identification of the said Nasir allegedly made by the witnesses is highly deserving no credence. doubtful 92. Learned counsel also made exhaustive submissions regarding the arrest of A1 and so also the arrest of A2 about the sealing aspect and the evidence of PW103 in relation to making PW2 approver, confession and etc., identification of A1. 93. In nutshell, it is the submission of learned counsel for A1 that the trial was not fair to the said accused, the evidence relied for drawing the conclusion of his guilt is unreliable and unworthy of credence or against the of probability. Rather he has been made a scapegoat and his guilt is not established by grain prosecution he deserves to be acquitted or at least deserves to be given benefit of doubt. evidence and 94. Though learned counsel for A2 submitted written 59 conf.5.09 submissions, he was asked to make oral submissions at least to highlight important points. He chose to make submissions pertaining to the incident or the circumstances showing involvement of the A2 for limited which he is convicted. The same are dealt with at appropriate place while discussing the prosecution evidence pertaining to the relevant topics in light of the rival submissions about the same. Now with regard to the remaining submissions, he has also made the similar grievance like counsel for A1 and A3 of having not received a fair trial by pointing out certain defects regarding the charge framed and / or the manner in which was conducted i.e. by allowing putting leading questions and / or objection raised during the course the trial of being not decided properly. It will not be out of place to mention that during the oral arguments on trial behalf learned counsel did not point out as to which objection raised at the instance of A2 during the of A2, trial requires consideration. 95. It was urged that charge framed against A2 at head fifthly for explosion occurred at Zaveri Bazar and for explosion occurred at head sixthly Gateway of India were vague to give a fair idea of the prosecution case against A2. It is urged that charge at head fifthly reveals that except the bald allegation of A2 along with A1 A3 having proceeded on the relevant day towards the junction of Dhanji 60 and conf.5.09



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street and further bald allegation of all of them having planted a bomb using high explosive and detonators in motor taxi, the same is vague. No details of the overt act committed by A2 is disclosed. It was urged that even case/charge regarding the Gateway incident is no the different. 96. Learned counsel also made similar submissions as that of counsel for A1 regarding the concerned witness identity of A2 with regard to the incident in question. All the prosecution witness who about the have identified A2 because of occurrence of some quarrel bickering etc. It was urged that this theory is highly improbable and the same also supports defence contention of the said witnesses being planted by the prosecution. 97. The learned Counsel urged similar submissions as canvassed by earlier counsel for A3 and A1 regardingof offences allegedly committed in four incidents at one trial for contending that the same being clubbing in contravention of the provisions of law. It was urged that there being a huge gap between first incident on 2nd December, 2002 and second incident in the month of July 2003 and remaining in the occurred month of August 2003 also indicates that A2 has been falsely involved in the first incident and so also the other incident. It 61 conf.5.09 was also urged that the said time gap also denotes that the incidents in question cannot be said to have occurred in the course of one transaction. 98. The learned counsel also made submissions incident-wise regarding involvement of A2, about his alleged confession, his alleged arrest on 31st of August, non compliance of the mandatory provisions under POTArecording the confession, evidence of approver, making himself approver about recovery evidence while etc. same will be dealt with while considering rival submissions regarding the relevant topic at The appropriate the sake of stage for brevity. 99. As a net result of all the submissions, learned counsel contended that guilt of A2 is not established by the evidence adduced by the prosecution. It is thus contended that A2 also deserves to be acquitted. We may place on record that at the end of hearing, the Counsel for the respective parties (in particular for the State and A 1 3), addressed us on the quantum of sentence on the supposition that the finding of guilt recorded against to the concerned Accused were to be upheld. That contention will be adverted to and dealt with at the appropriate stage. 62 conf.5.09 100. We have given thoughtful consideration to the submissions advanced by the rival parties and carefullyentire record with their assistance in order to ascertain merits from the same. However, in order perused to ensure brevity and to avoid repeated discussions of the same evidence we propose to make the discussions topic-wise hereinafter i.e. firstly regarding Writ Petition No. 2539/2008 and Criminal Appeal No.4 of 2009 pertaining to discharge of A4 and A5 and thereafter matters related with unfair trial and, thereafter, incident-wise and, thereafter, matters pertaining to the question of sentence awarded. Re: Writ Petition No.2539/200 8 & Cri.Appeal 4/2009 101. Ms. Kantharia, learned APP while adverting to events unfolded after 10th May, 2005 in said POTA case, as described in commencing part of judgment and the one which had ultimately led to passing of order datedNovember, 2008 by POTA Special Court, Mumbai, urged that the same has forced the prosecution 17th to institute aforesaid proceedings. By this writ petition, the prosecution has prayed for issuing writ or directions in the nature of certiorari and/or such other appropriate writ, order or direction of similar nature quashing and setting aside the direction given by said POTA Review Committee. Notably, while admitting this writ petition August,.2009, the prayer for interim relief of stay of implementation 63 on 11th conf.5.09



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of directions issued by the POTA Court was rejected. As a result, the said POTA Special Case proceeded with trial only against A1 to A3. 102. By aforesaid criminal appeal, the prosecution amongst other has sought leave to prefer an appeal against dated 17th November, 2008 passed by the Special POTA Court for Mumbai in Special POTA the order Case of 2004 under Section 378(3) of Code read with Rule 19 of Chapter XXVI of the Appellate Side No.1 Rules quashing and setting aside the said order and directing said POTA Court to decide the entire case on and for merits as against A4 and A5. 103. Learned A.P.P. urged that consequent to the report of the Review Committee - for discharging A4 and from the said POTA case - the said accused filed MA 42 and 44 of 2005 respectively before the A5 Special POTA Court Mumbai. These applications, however, were rejected by the said Court vide order Judge, dated 11.8.2005. Resultantly, the prosecution had no occasion to take any steps regarding the direction issued by the Committee. She further urged that after this Court, in the proceeding filed by A4 and A5, gave directions to prosecution, vide order dated 24th October, 2005, to file an application under Section 321 of the Code, the for withdrawal of the prosecution against A4 and A5, the Special Public Prosecutor in 64 conf.5.09 charge of the said case preferred such application Exh.P-343 inter alia stating that he was of the opinion that is prima facie case under POTA against A4 and A5. She urged that similar stand was taken by him in there the to the application preferred by A4 and A5 before POTA Court. She urged that by order dated reply 23.1.2006, Court, having disposed the said applications, amongst other observing that case for the POTA withdrawal under Section 321 of the Code was not made out, - it was unnecessary for the prosecution to carry the matter on the assumption that - the Special Judge intended to proceed against A4 and A5 as well. She further urged that thus prosecution had duly complied the direction given by this Court by preferring application Exh.P343. 104. The learned APP urged that however, A 5 had filed SLP No. 187 of 2006 against the decision of this dated 24 th October, 2005 before the Apex Court. That SLP was converted into Criminal Appeal Court No. of 2006 and heard along with other matters of accused persons involved in fire incident at 359 Godhra, All the said proceeding were disposed of by the Apex Court vide order dated 21st October, 2008 Gujarat. i.e. the decision in the case of Mahmadhusen Abdulrahim Kalota Shaikh(2) .vs. Union of India and by others in (2009) 1 Supreme Court Cases (Cri) 620. On the basis of 65 reported conf.5.09 observations in that decision of the Apex Court, A4 and A5 again preferred application Exh.D-116 before the POTA Court Mumbai for exonerating them from charges framed on the basis of the report/direction dated of May, 2005 given by Review 10th Committee. 105. The learned APP by relying on the observations made in paragraph no.51 of the decision in the case of A. K. Shaikh (supra) and particularly the portion from the same to the effect "but we make it clear that M. if opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is the set aside, the court where the proceedings were pending, will continue with the case as if there had been no such opinion", urged that the prosecution being aggrieved by the report/opinion/direction given on 10th May, 2005 by Review Committee, is competent to maintain this Writ Petition to question the opinion of the Review Committee. According to the prosecution, if this Petition succeeds, and the opinion of the Review Committee being perverse and manifestly wrong, at the instance of the State, then, as a corollary, the is overturned order by the trial Court on the application of A 4 and 5 for discharge will have to be set-aside. It is passed submitted that the State is otherwise entitled to challenge the opinion of the Review Committee by way of 66 conf.5.09 Writ Petition. For, it is only recommendatory in nature. Even if the same is to be construed as having the trappings of a quasi-judicial decision and having binding effect by virtue of Section 60(7) of the Act, it is amenable to challenge at the instance of an aggrieved party - State being obliged to prosecute the offenders of serious offences - when it is demonstrated that the Review Committee has committed jurisdictional such error.Indian Kanoon - http://indiankanoon.org/doc/126463415/ 25


106. The learned APP thereafter by drawing attention to the provisions of Section 60 (4) of the POTA Act that the said provision considered in the light of the other provisions of the said section makes urged it abundantly clear that review contemplated is expected to ascertain whether prima facie case for proceeding accused for commission of offence under the POTA Act and to issue direction in accordance against the with the same. She further urged that the said provision does not empower the Review Committee to pronounce on continuance of trial against the accused of offences other than POTA offences. She urged that thus the the said provision nowhere contemplates giving any direction for withdrawal of the cases in respect of other offences under other enactments. The learned APP vehemently contended that it is not open to the Review Committeewithdrawal of prosecution of other offences under other 67 to direct conf.5.09 enactments against the Accused and/or discharging or acquitting him therefrom merely because he was prosecuted additionally for POTA offences. 107. The learned APP thereafter by drawing attention to the charges framed in POTA Special Case No.1/2004 A4 was also charged for commission of offence under Section 3 of Explosive Substances Act, urged that for having caused to unauthorisedly store 750 grams of RDX, discovered at his instance on 10.11.2003 from Hassan Battery Shop near Kolhapur Garage near Kurla, Mumbai. Similarly A5 was charged for commission of such offence under Section 3 of the Explosive Substances Act on the count of being in possession of two detonators . The learned APP invited our attention to the report given by Review Committee and particularly part of paragraph No.17 of the same to the the relevant effect : "17. There appears substance in the submission of Ld. Counsel representing accused Hassan Batterywala and Rizwan Ladoowala. These two accused have been prosecuted under Section 4(b) POTA. Though the State of Maharashtra was notified area for the purposes of offences under POTA, Section 4 (a)

Gateway of India Blast Case- Court Verdict

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