Lashkar-e-Toiba(LeT) Republic Day Blast Conspiracy Case Delhi POTA Court Judgement

7/29/2019 Lashkar-e-Toiba(LeT) Republic Day Blast Conspiracy Case Delhi POTA Court Judgement

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IN THE COURT OF MS. RAVINDER KAUR

ASJ, N.DELHI.

SC NO. 36/02

State Vs. 1. Mohd.Afsal Kumhar S/o Ghulam Mohd Kumhar

R/o Telwani, Anantnag,PS Anantnag,Kashmir.

2. Ansar Ahmed Dar

S/o Late Mohd Afzal DarR/o Vill Dayal Gam,PS Sadar, Anantnag,Kashmir.

3. Bilal Ahmed Dar S/o Late Mohd Jabbar Mir

R/o Vill Dayal Gam,PS Sadar, Anantnag, Kashmir

4. Adil Nazir Keen S/o Nazir Ahmed keen

R/o Chini Chowk, PS Sadar,Distt. Anantnag, Kashmir &Vill. Tailwani, PS Anantnag,J & K.

5. Dilip Tribhuvandas Barot

@ Dilip Bhai,


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S/o Late Tribhuvandas,R/o Vill. Sumok, PS & TehsilUnjha, Distt. Mehsana,Gujarat.

6.Rajesh Khoda Bhai Prajapati@ Raju Bhai S/o Khoda Bhai,R/o M. Ramesh Kumar andCo.,22 Kalyan Building,Kumbhar Tukra, Bhuleshwar-II, Mumbai,

Also at 401, Krishna Building,Dhiraj Presidency,Kondiwali (W), Mumbai.

7. Mehboob Karim MerchantS/o Karim Merchant,

R/o Dintinkar Street,Memoni Compound,Nagpara, Mumbai.

Also at No. 51, StatusBuilding, 5th Floor,Uari Road, Warsowa,

Andheri (W), Mumbai.

FIR No. : 18/02PS : Kotla Mubarakpur.U/s : 121A/122 IPC, Sec. 3(b) 3(5), 4(b)

20 and 22(3)(5) POTA and Sec.4(b) & 5 Explosive Substances

Act.


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J U D G M E N T

1 The prosecution case is that during

the last week of December 2001, information

was received by the Central Intelligence

Bureau that under the instructions of thePak Intelligence services (ISI), the militants

of Lashkar-e- Tayyaba a terrorist

organisation, were sending huge quantity of

explosives for spreading terror in Delhi by

bomb explosions on the eve of Republic Day

and were also collecting money through

hawala sources for this purpose. For the

investigation of the said information a team

under the supervision of Inspt. Mohan

Chand Sharma, was formed comprising of SI

Govind Sharma, SI Sanjay Dutt, SI Lalit

Mohan, SI Hridaya Bhushan, SI Mehtab


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Singh, SI Sushil Kumar, ASI Anil Tyagi, ASI

Bhoop Singh, ASI Anil Thakur, HC Narender

HC Vikram, HC Devender, HC Satender, HC

Shajahan, Ct. Ranjeet and Ct. Rakesh,

sources were deployed to further developthe aforesaid information and a close watch

was kept on the possible hideouts of

Kashmiri Militants in Delhi. On 14/1/02 at

about 12:30pm specific secret information

was received that three kashmiri boys

having links with Lashkar -e -Toiba were

staying with Bilal a kashmiri boy at Karan

Hostel, Kotla Mubarakpur and that they

were possessing huge quantity of explosives

and money collected through hawala. On

receipt of the aforesaid information, Inspt

Mohanchand Sharma recorded the same in


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roznamcha, discussed the matter with senior

officers and at about 1:15pm left for Karan

Hostel in private cars and two wheelers

alongwith the aforesaid staff with arms and

ammunition and reached there at 1:30pm.On secret enquiry it revealed that three

Kashmiri boys who came few days ago were

staying with Bilal in Room No. 3, Karan

Hostel Gali Parsadi, Kotla Mubarakpur but

at that time only Bilal and one other boy

was present and the other two had gone

somewhere. Under the instructions of the

senior officers the owner of Karan Hostel

Sh. Ram Kumar s/o Sh. Tej Ram was

contacted. He was apprised of the situation

and thereafter was joined in the raiding

party with his consent. He too confirmed


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the fact from Karan Hostel that Bilal and

one of his accomplice were in the room and

the other two had gone out. Thereafter

alongwith Ram Kumar watch was kept on

the aforesaid hostel and its nearby areasand waited for the other two boys. SI

Govind Sharma asked 8-10 passersby to join

the investigation but they refused to join

the same. At about 8pm two boys were

spotted coming to Karan Hostel with a bag

each in their right hand who were identified

by Ram Kumar as the boys staying with

Bilal. Both the boys were apprehended at

the gate of the hostel and their names and

addresses were disclosed as Mohd Afsal

Kumhar s/o Ghulam Mohd. Kumhar r/o

Telwani, Anantnag, J&K and Adil Nazir Keen


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s/o Nazir Ahmed Keen r/o Chini Chowk, PS

Sadar, Distt. Anantnag, J&K. Thereafter the

other two accused from the hostel room

were apprehended whose name and address

were later on revealed as Ansar Ahmed Dars/o Late Mohd. Afsal Dar and Bilal Ahmed

Mir s/o Late Mohd. Jabbar Mir both

residents of r/o Vill. Dayalgam PS Sadar,

Distt. Anantnag, J&K. The rexine bag Ex.P1

which was in the hand of Mohd. Afsal

Kumhar, of red and white colour on which

Speed Pre-paid Mobile was written, was

checked and was found containing a

polythene bag Ex.P4 on which Mission

Kashmir was written on one side and had

posters of films on it which contained a

transparent polythene Ex.P5 containing


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kneaded black and brown (bura) colour

explosive material -RDX Ex.P3, Rs. 5 lakhs

cash collectively Ex.P2 (30 bundles of

currency notes of Rs. 50/- denomination

amounting to Rs. 1.5 lakhs, 35 bundles ofcurrency notes of Rs. 100/- denomination

amounting to Rs. 3.5 lakhs) and two

detonators Ex.P6 & P7 wrapped in tape

with wires in the side pocket of the

aforesaid bag.

1. The bag Ex.P8 in the hand of Adil

Nazir Keen was of maroon colour with

GEMS Park written on it in English, which

was checked and was found containing one

black colour polythene bag Ex.P10

containing black and brown (bura) colour

kneaded explosive material RDX, Ex.P11,


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Rs. 5 lakhs cash collectively Ex.P9 (50

bundles of currency notes of Rs. 100/-

denomination) and two detonators Ex.P12

& P13wrapped in tape with wires from the

side pocket of the aforesaid bag.2. RDX recovered from accused Mohd.

Afsal and Anil Nazir on weighing were

found to be 2.280 kg and 2.0 kg respectively,

out of which 10-10 gms RDX as sample was

taken out and were kept in separate plastic

jars which were numbered as S1 & S2. The

recovered detonators were kept in the

respective polythene bags with cotton and

kept in two separate plastic jars and were

marked D1 & D2 respectively. Remaining

RDX 2.270 and 1.990 kgs were kept in the

same poly bags, converted into two separate


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pulandas, sealed with the seal of GS and

seized. Separate pulandas of the jar S.No. S1,

S2, D1 and D2 were prepared, sealed with

the seal of GS and seized. The recovered

bags each containing Rs. 5 -5 lakhs wereseized vide seizure memo. CFSL form was

filled.

3. Accused Bilal Ahmed Mir and

Ansar Ahmed Dar during formal

interrogation disclosed that in room No. 3

Karan Hostel under their beds there were

two bags containing total Rs. 24.9 lakhs and

explosive materials. On their pointing out, a

blue colour bag having yellow stripes and

FORTEI in English written on it was

recovered from under the bed near the side

of bathroom. Rs. 10.90 lakh (one bundle of


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Rs. 500/- denomination, 98 bundles of Rs.

100/- denomination and 12 bundles of Rs.

50/- denomination) were recovered from the

aforesaid bag. From the recovered green

colour bag , a polythene bag containingwhite colour explosive material and Rs. 14

lakh (14 bundles of currency notes of Rs.

500/- denomination amounting to Rs. 7

lakhs, 70 bundles of currency notes of Rs.

100 denomination amounting to Rs 7 lakhs)

were recovered. The explosive material

weighed 3.900 kgs from which 10 gms

sample was taken out and was kept in a

plastic jar and was marked as S.No. S3. The

remaining 3.890 kgs and the sample S3 were

separately sealed in a pulanda. The

aforesaid pulandas were sealed with the seal


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of GS. The aforesaid two bags containing Rs.

24.90 lakhs in total and the sealed plastic

jars were taken into possession vide seizure

memos.

4. Form CFSL was filled in. Seal afteruse was handed over to SI Sanjay Dutt. It

was found that accused Mohd. Afzal

Kumhar, Adil Nazir Keen, Ansar Ahmed Dar

and Bilal Ahmed Mir inorder to spread

terror in the Indian sub continent by using

bombs and explosives which could cause

huge loss of lives and properties had

collected explosives and money for

facilitating the aforesaid purpose. As such SI

Govind Sharma prepared rukka and sent

ASI Anil Tyagi to PS Kotla Mubarakpur for

registration of the case U/s 121/121A/122/123


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IPC and 4/5 Explosive Substance Act. After

registration of the case, SI Sharad Kohli

reached the spot and further investigation

was handed over to him. He inspected the

spot and prepared siteplan at the instanceof SI Govind Sharma. He arrested the

accused persons. On the pointing out of

accused Adil a mobile phone bearing No.

9811336055 kept on the table of Room No. 3,

Karan Hostel was taken into possession.

Separate disclosure statements of all the

accused persons were recorded wherein they

disclosed that they had been motivated by a

Pakistani terrorist of Lashkar -e-Tayyaba

namely Abu Amaar, Distt. Commander at

Anantnag to join Lashkar-e- Tayyaba for

jehad and that they were planning to cause


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explosions during the Republic Day Parade.

They further disclosed that they could get

more explosives recovered and that they

could point out to the hideouts of the

militants in Anantnag and Kashmir and getthem arrested. On the basis of the disclosure

statement of the accused persons and the

explosives and money recovered, it revealed

that they wanted to spread terror in the

Indian subcontinent by causing huge loss of

lives and properties, Sec. 3/4/5/20/2/22

POTO and Sec. 120 B IPC were added in the

chargesheet and on 15/1/02 further

investigation was handed over to ACP Rajbir

Singh. During investigation the accused

persons were produced in court and their

PC remand was taken. In furtherance of


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the disclosure statement of the accused

persons, accused Mohd. Afzal pointed out

towards accused Dilip Tribhuvandas Barot @

Dilip Bhai, Manager, M. Ramesh Kumar &

Co., 4482-84, Ist Floor, Dau Bazar, ClothMarket, Fatehpuri, Delhi who used to

provide hawala money to the terrorists for

facilitating their terrorist activities. He was

arrested and Rs. 4.60 lakhs hawala money

was recovered from his possession. His

disclosure statement was recorded wherein

he disclosed that he used to provide hawala

money to the terrorists on the asking of

Raju Bhai Manager, M. Ramesh Kumar &

Co. Mumbai. During PC Remand , DCP,

Special Cell, Sh. Balaji Srivastava recorded

confessional statement of accused Mohd.


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Afzal and Adil Nazir. Thereafter they were

produced before ACMM after expiry of their

PC remand and their confirmation of the

confessional statement was recorded. Other

accused persons did not volunteer formaking confessional statement as such they

were not produced before the DCP Special

Cell.

5. On 18/1/02 Mumbai police arrested

accused Rajesh Khora Bhai Prajapati and

after his interrogation, accused Mehboob

Kareem Merchant was arrested. Transit

remand of both the accused was obtained

from ACMM Mumbai by SI Sanjay Dutt and

on 20/1/02 both the accused were arrested

in this case. Their separate disclosure

statements were recorded.


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6. During investigation the exhibits

were sent to CFSL, CBI, CGO Complex,

Lodhi Colony. On 25/2/02 the CFSL result

was obtained wherein it was opined that

the four electronic detonators were liveones, physico-chemical examination

confirmed the presence of RDX, PETN and

ammonium nitrate based mixture of High

explosive in the contents and that the above

exhibits could form components of

Improvised Explosive Devices (IEDs) and

were explosive substances as defined in

Explosive Substances Act, 1908 and the

physico-chemical examination confirmed the

presence of potassium chlorate in the

contents which form a component of

Improvised Explosive Mixture.


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7. During investigation the call details

of the mobile phone bearing No.9811336055

recovered from the accused persons were

obtained. The accused had called at

telephone No. 0113988310 on 7/1/02 which isinstalled at the office of M Ramesh Kumar

& Co., 4482-84, Ist Floor, Dau Bazar, Cloth

Market, Fatehpuri, Delhi. One another

telephone was also installed at the aforesaid

address bearing No. 3957693 which the

accused had disclosed as 3157693. The MTNL

record of telephone No. 3988310 and 3957693

was obtained and placed on record. After

complete investigation the chargesheet was

filed to court against the accused persons

namely Mohd Afsal Kumhar, Adil Nazir

Keen, Ansar Ahmed Dar, Bilal Ahmed Mir,


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Dilip Tribhuvandas Barot @ Dilip Bhai,

Rajesh Khoda Bhai Prajapati @ Raju Bhai

and Mehboob Karim Merchant.

8. Accused Mehboob Karim Merchant

was discharged vide order dtd. 20/4/02.9. Accused Rajesh Khoda Bhai

Prajapati and accused Dilip Tribhuvandas

Barot were discharged by the order of the

POTA Review Committee dtd. 30/12/04 and

10/5/05 respectively.

10. All the remaining accused

persons namely Mohd Afsal Kumhar, Ansar

Ahmed Dar, Bilal Ahmed Mir and Adil Nazir

Keen were charged U/s 121A/122 IPC.

11. Accused Ansar Ahmed Dar was

charged U/s 3(b) 3(5), 4(b) and 20 POTA

and Sec. 4(b) & Sec.5 of Explosive


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Substances Act.

12. Accused Bilal Ahmed Meer was

charged U/s 3(b) 3(5), 4(b) and 20 POTA

and Sec. 4(b) & Sec.5 of Explosive

Substances Act.13. Accused Adil Nazir Keen was

charged U/s 3(b) 3(5), 4(b), 20, 22(3)(5) POTA

and Sec. 4(b) & 5 Explosive Substances Act.

14. Accused Mohd Afsal were charged

U/s 3(b) 3(5), 4(b), 20, 22(3)(5) POTA and Sec.

4(b) & 5 Explosive Substances Act.

15. The prosecution in support of its

case has examined 19 witnesses.

A) Secret information / Apprehension /

Recovery / Arrest:

(i) The relevant witnesses regarding

receipt of secret information through Central


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Intelligence Agency that some members of

Lashkar-e- Toiba had planned to strike

around Republic Day celebration and

destruct the Republic Day and that huge

amount from hawala route was likely toreach the terrorist as well as regarding the

specific information received on 14/1/02 that

some militants of Lashkar -e- Toiba were

staying at Karan Hostel Kotla Mubarakpur

and were having explosive substance and

hawala money as well as their apprehension

are PW8 SI Govind Sharma, PW12 SI Sanjay

Dutt, PW15 Ram Kumar an independent

witness, PW16 ASI Anil Tyagi , PW17 SI

Sharad Kohli and PW19 Inspt. Mohanchand

Sharma.

(ii) As per the prosecution during


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last week of December 2001 information was

received from Central Intelligence Bureau

that under the instructions of the PAK

Intelligence services the militants of LeT a

terrorist organization, were sending hugequantity of explosives for spreading terror in

Delhi by bomb explosions on the eve of

Republic Day and were also collecting

money through hawala sources for this

purpose. For the investigation of the said

information a team under the supervision of

Inspt. Mohan Chand Sharma was

constituted.

(iii) Inspt. Mohan Chand Sharma

has been examined as PW19 who deposed

about receipt of the information through

Central Intelligence Agency in the last week


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of December 2001. He testified that on

receipt of this information, a raiding party

was formed and raids were conducted at

different places in Delhi. He further testified

that on 14/1/02 he received a specificinformation through informer in his office at

Lodhi Colony that some militants of LeT

were staying at Karan Hostel Kotla

Mubarakpur and were having explosive

substance and hawala money regarding

which he made DD entry vide DD No. 12

Ex.PW19/A but to maintain secrecy he did

not mention the correct address and name

and mentioned only South Delhi. It is

stated that on this information he alongwith

SI Sanjay Dutt, SI Govind Sharma, SI

Hridaybhushan, SI Sushil, ASI Anil Tyagi


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and other staff reached Gyani Market, Kotla

Mubarakpur at 1:30pm where the informer

took him to Karan Hostel and showed him

the place. He was further informed by the

informer that there were four militantsstaying at Room No. 3 of Karan Hostel. He

got this news confirmed and came to know

that while two were still inside the room

the other two had gone out. As such it was

decided to wait for the other two accused

persons and to keep watch around the

hostel. He further stated that he called the

owner of Karan Hostel namely Ram Kumar

examined as PW15 by the prosecution and

made enquiries from him who told that one

Bilal used to live in Room No. 3 and for

few days three more boys were staying with


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him. At this he deployed his staff at

different places around Karan Hostel to keep

a watch and PW Ram Kumar was also with

him. At about 8pm two Kashmiri boys

holding bag in their right hand came infront of Karan Hostel who were identified

by Ram Kumar as the same boys who were

living in the room with Bilal. They were

apprehended and immediately room No.3

was raided from where the other two

occupants of the room were apprehended.

He stated that the two persons apprehended

outside were accused Mohd. Afsal and Adil

present in court and they were taken

alongwith their bags inside Room no. 3 of

Karan Hostel. The bag in the hand of

accused Afsal was checked and was found


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containing Rs. 5 lakh in cash and 2.280 kg

of RDX and two detonators . Similarly , the

bag of accused Adil was checked and was

found containing Rs. 5 lakhs cash, 2 kg RDX

and detonators.Regarding accused Bilal and Ansar who

were apprehended from inside the room ,

he stated that during their interrogation

they disclosed that there were two bags

lying under the bed of the room which

were also taken out and checked. One bag

was found containing Rs. 14 lakhs cash and

3kg 900 gms of white explosive whereas the

other bag was containing Rs. 10.90 lakhs. He

further testified that all these articles were

seized vide seizure memo Ex.PW8/A & 8/B

respectively by SI Govind Sharma.


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The perusal of seizure memos shows

that the case property recovered from the

possession of accused Mohd. Afsal Kumhar

and Adil Nazir Keen was seized vide seizure

memo Ex.PW8/A and the case propertyrecovered from the accused Ansar Ahmed

Dar and Bilal Ahmed Meer was seized vide

seizure memo Ex.PW8/B. The witness

correctly identified the case property in the

court as recovered from each of the accused.

He testified that 10 gms sample was taken

out from the RDX recovered from the bags

of accused Mohd Afsal, Adil respectively and

10gms sample was taken out of the

explosive material recovered from green

colour bag Ex.P14 from under the bed in the

room. He further testified that the samples


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and remaining explosives were sealed

separately by SI Govind Sharma, form CFSL

was filled and rukka was sent by SI Govind

Sharma for registration of the case.

Thereafter further investigation was handedover to SI Sharad Kohli who was called

from the office. He testified that all the

proceedings and raid was conducted under

his supervision and all the four accused

were arrested in his presence at the spot.

During cross examination the witness

denied the suggestion that the accused were

lifted from Karan Hostel on 2/1/02 and were

kept in illegal detention throughout at

Special Cell. He also denied that no

recovery was effected from the accused

persons on 14/1/02 or at their instance. He


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further stated during cross examination that

PW Ram Kumar the owner of Karan Hostel

remained present with him throughout the

raid and all the recoveries were made in his

presence. He denied the suggestion that atthe time of raid large number of people had

collected at the spot.

(iv) PW 8 SI Govind Sharma was

member of the raiding party in whose

presence all the four accused were arrested

and recovery was effected form their

possession. He deposed on the lines of

PW19 Inspt. Mohanchand Sharma. He

identified the accused persons correctly in

the court and the case property recovered

from their possession. He also testified that

the case property was sealed with the seal


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of GS and after use the seal was handed

over to SI Sanjay Dutt. He further deposed

that he prepared rukka Ex.PW8/C and sent

the same through ASI Anil Tyagi for

registration of the case. He stated that SISharad Kohli had reached the spot since he

was called there for further investigation. It

is further testified that SI Sharad Kohli at

his pointing out prepared siteplan

Ex.PW8/DA of the place of recoveries and

their arrest and further investigation was

done by SI Sharad Kohli. He further testified

that on 13/3/02 he had again gone to the

spot ie. Karan Hostel Room No. 3 alongwith

ACP Rajbir Singh which was got opened

after calling its owner and the articles lying

there were seized vide memo Ex.PW8/D.


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The perusal of the memo shows that it is

bearing the signatures of PW15 Ram Kumar,

PW8 Govind Sharma and PW18 ACP Rajbir.


admitted that no identification mark wasput on the currency notes recovered from

the accused persons nor any marking was

made on the wrappers or slips present on

the currency notes nor any mark was put

on the polythene bag. The witness clarified

that currency notes were immediately

sealed. He admitted that the hostel from

where the accused was apprehended the

particulars of other occupants of the rooms

in the hostel were not ascertained. The

witness could not tell as to who was the

owner of H.No. 1804/2 shown in the siteplan


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or who was living in H. No. 1804/4 & 7.

Regarding plot No. 1804 he testified that it

was a vacant plot. He was also cross

examined regarding the surroundings of

Kotla Mubarakpur and the witness admittedthat there are several shops in Defence

Colony and South Extn adjoining Kotla

Mubarakpur but none from there were

called for joining the investigation. The

witness further stated in cross examination

that he remained at the spot till 4am and

till that time no other senior officer came to

the spot except the team members who

were already there and Mr. Sharad Kohli.

He stated that ASI Anil Tyagi had left the

spot for registration of the case. He also

stated that one team member had also left


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the spot during this period to collect

weights and balances and weights and

balances were brought from the office. He

denied the suggestion that accused were

apprehended from Karan Hostel on 2/1/02.He also denied that the siteplan Ex.PW8/DA

was incorrect or that nothing was recovered

from the possession of accused persons or

that the explosive substance was planted

upon them. He also denied the suggestion

that accused persons were made to sign

blank papers under coercion.

(v) PW12 SI Sanjay Dutt has deposed

on the lines of PW19 Inspt. Mohan Chand

Sharma and PW8 SI Govind Sharma

regarding secret information, the

apprehension of the accused persons and


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handed over to SI Sanjay Dutt.

(vii) PW15 Ram Kumar is the owner of

Karan Hostel situated at 1804/2 Kotla

Mubarakpur where accused Bilal was staying

in R. No. 3 on rent. He testified thatsometime in January 2002 at about 2 /

2:30pm one person came to him and

enquired if a boy namely Bilal was living in

his hostel and he answered in the

affirmative. Thereafter at about 9 /9:30pm

the same person again came back and

introduced himself as from police and asked

him to show as to who were the persons

living in that room. He accompanied him

who called more police officials who were

10-12 in number. He testified that at about

11pm they went to the room of Bilal and he


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got the room opened where four boys were

sitting. Out of them one was accused Bilal

and three more persons were there who

were seen by him only on that day. He

stated that for this reason he was not ableto identify them. Further all the police

officials went inside the room and for about

2 hrs conducted proceedings inside the room

and wrote something. Thereafter police

took all the four boys with them. He stated

that at that time he was outside the room

and did not care what was recovered from

the accused persons. This witness was

declared hostile by the prosecution with the

permission of the court since he was found

resiling from his previous statement. During

cross examination he testified, he was not


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sure if police had come to him on 14/1/02

and stated that he only remembered it was

in January 2002.

He was put a specific question as

follows:Ques. It is put to you that Inspt.

Mohanchand Sharma had come to you on

14/1/02 at about 2pm and enquired from

you if some Kashmiris were living in your

hostel and you informed that Bilal was your

tenant and three more Kashmiris were

staying with him?

To the aforesaid question the witness

gave the following answer :

''I had told that Bilal was my tenant

and other Kashmiris used to visit him.''

The perusal of his statement shows that


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he did not answer the suggestion that Inspt.

Mohanchand Sharma had come to him on

14/1/02 at about 2pm. As such it is

presumed to be admitted by him that Inspt.

Mohanchand Sharma had come to him on14/1/02 at about 2pm and had made

enquiries about accused Bilal and some

Kashmiris.

This witness denied the suggestion that

his statement was recorded on 15/1/02 by

Inspt. Sharad Kohli. He was confronted with

his statement Mark A recorded U/s 161

Cr.PC where he had stated that he had told

Inspt. Mohanchand Sharma that one Bilal

and one more boy were present in the

room after he verified the same and that he

also told the police that while two boys


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were inside the room , two other Kashmiris

had gone out. He admitted the suggestion

of the prosecution to be correct that police

had started keeping watch around the hostel

from 2:30pm to 3pm and had spread aroundthe hostel. He also admitted it to be correct

that he remained with those police persons

but only for sometime and thereafter he

went to his house. However he denied the

suggestion that he had told the police at

about 8pm that two boys were seen coming

towards the hostel whose names were

lateron revealed as Mohd. Afsal Kumhar and

Adil Nazir Keen. He stated that he did not

see them carrying bags and he volunteered

that he saw all of them inside the room. He

was confronted with his statement Mark A


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where these fact finds mention. He

admitted his signatures on the seizure

memos i.e Ex.PW8/A & 8/B respectively

regarding the recoveries effected from the

possession of accused persons but heclaimed that he signed them without

reading. He was again put a specific

question by the Ld. Prosecutor that from all

the four accused persons bags were

recovered and from the bags RDX,

detonators and currency notes were

recovered and sealed in his presence. He

denied any recovery in his presence and

stated that he was standing outside the

room but was told by the police about

recovery of 34-35 lakhs of rupees and RDX

from the accused persons. He was


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confronted with the statement Mark A

where he stated before the police that

recoveries were made by the police in his

presence and were also sealed in his

presence. He admitted that on 13/3/02 policeagain came to the hostel and collected

articles lying in the room and seized the

same vide seizure memo Ex.Pw8/D. He

admitted that he had produced before the

police photocopy of form which he filled for

verification of the tenant and copy of

telephone bill to the police which were

seized vide seizure memo Ex.PW8/DB. It is

taken note of that this time he stated that

he had signed these memos after reading,

whereas regarding seizure memos Ex.PW8/A

and Ex.PW8/B regarding seizure of huge


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quantity of RDX, detonators and cash he

stated he did not read the contents of

seizure memos which is quite unnatural

conduct. He could not admit or deny if red

colour, maroon colour, green and yellowcolour bags were taken away by the police

on that day after they were recovered from

accused persons with the contents. In other

words the witness has not denied that these

bags were found in the room No. 3 of the

hostel and they were containing any

incriminating material.

During cross examination by the

defence counsel he stated that he do not

remember if police had arrested accused

persons on 2/1/02 nor could he say it was

first week of January but he only


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remembered it was in January 2002.

(viii) PW17 SI Sharad Kohli had taken

over the investigation from SI Govind

Sharma after rukka Ex.PW8/C was sent to

the PS for registration of the case. Hetestified that on 14/1/02 he was intimated

by Inspt. Mohanchand Sharma at about

11pm in the night to come at Karan Hostel,

Kotla Mubarakpur. He reached there at

about 11:20pm and found team of Special

Cell already there at Kotla Mubarakpur. He

stated that SI Govind Sharma had almost

prepared rukka at that time and sent ASI

Anil Tyagi with rukka to PS KM Pur for

registration of the case. SI Govind Sharma

handed over four bags , 8 sealed parcels,

two forms CFSL, two sample seals, two


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seizure memos and a total cash of Rs. 34.9

lakhs as mentioned in seizure memos

Ex.PW8/A & B respectively and also handed

over to him the custody of four accused

present in court namely Afsal, Ansar, Adiland Bilal. He testified that all the seized

case property and the accused persons were

handed over to him in R.No. 3 of Karan

Hostel, 1804/2, KM Pur and SI Govind

Sharma had explained to him the entire

circumstances. He further stated that

siteplan Ex.PW8/DA was prepared by him at

the instance of SI Govind Sharma. At about

1:15am ASI Anil Tyagi came back to the spot

after registration of the case alongwith copy

of FIR and rukka. He recorded the

statement of public witness Ram Kumar the


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owner of Karan Hostel at the spot . He also

interrogated the accused persons and

formally arrested them vide arrest memos,

body inspection memos and personal search

memos Ex.PW17/1 to 12 bearing hissignatures and of SI Hridaybhushan and ASI

Anil Tyagi at point A, B & C respectively.

He further testified that he recovered one

mobile phone ie a Motorola Handset from

inside the room at the instance of accused

Adil Nazir Keen and he seized the same

alongwith warranty card and cash memo

Ex.PW16/E & G respectively vide recovery

memo Ex.Pw16/A. He testified thereafter he

took the case property and the accused

persons alongwith the team of Spl Cell to

PS KM Pur where the case property was


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deposited in the malkhana and then accused

persons were taken to Spl Cell Lodhi Colony

and were interrogated in detail. He further

stated that he recorded their disclosure

statements Ex.PW16/B to E. He alsorecorded the statement of the police officers

who were members of the team and

witnesses of recovery. It is stated that

thereafter the provisions of POTO were

invoked and further investigation was

handed over to ACP Rajbir. He further

testified that on 15/1/02 the four accused

persons were produced in the court and

their police remand was sought by ACP

Rajbir and on that day he joined the

investigation. He further testified that

accused Afsal led them to Fatehpuri Dau


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Bazar in Old Delhi in the office of M.

Ramesh and Company situated at Ist Floor

and pointed out to accused Dilip Bhai who

was sitting in the office vide pointing out

memo Ex.PW17/A and told that he hadtaken three consignments of Hawala Money

from Dilip Bhai totaling to Rs. 28.25 lakhs.

He further testified that ACP Rajbir Singh

seized three registers Ex. P25 to P27, one

cash receipt book Ex.P28 vide memo

Ex.PW17/B and one bag Ex.P23 containing

Rs. 4.60 lakhs collectively Ex.P24 hawala

money vide memo Ex.PW 17/C, from the

aforesaid office. He further stated that SI

Hridaybhushan was also with them at that

time and had signed the memos. He

testified that accused Dilip was arrested and


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brought to Special Cell where he was

interrogated and his disclosure statement

Ex.PW17/D was recorded.

B. Confessional Statements:

(i) PW18 ACP Rajbir Singh, Spl Celltook over the investigation of the present

case after invoking the provisions of POTO.

He testified that on 22/1/02 he requested

DCP Special Cell for recording confessional

statement of Mohd. Afsal and Adil Nazir

Keen as they volunteered to make the same.

DCP gave him the date for recording

confessional statements of accused persons

on 24/1/02 at 5pm. On 24/1/02 he made

another application for recording

confessional statement of Bilal and Ansar as

they too had volunteered to make


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confessional statements. It is testified that he

produced accused Mohd Afsal at the office

of ACP Southern Range where DCP Sh.

Balaji Srivastava had come for recording the

confessional statements and after hisstatement was recorded he produced

accused Adil Nazir Keen before the DCP for

recording his confessional statement.

Regarding accused Bilal and Ansar he

testified that they were also produced before

DCP but they refused to make confessional

statements before DCP. He further testified

that he applied for copy of confessional

statement but his request was declined. It is

testified that on 25/1/02 he produced

accused Mohd. Afsal and Adil Nazir Keen

before Sh. VK Maheshwari the then ACMM


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New Delhi Courts at Patiala House for

confirmation of their confessional statements

alongwith their confessional statements

recorded by DCP in a sealed cover. IT is

stated that he moved application Ex.PW5/Fbefore the ACMM for recording confirmation

and the statements of the accused persons

were recorded by the ACMM. During cross

examination the witness admitted that the

police remand of both the accused was to

expire on 25/1/02. He further testified that

he had produced both the accused Mohd .

Afsal and Adil Nazir Keen in the afternoon

around 2pm after making request to security

personnels to allow them to remain in the

premises and requesting the ACMM to

remain there to produce the accused


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persons before him since the police remand

was expiring on the same day. It is testified

that Ld. ACMM recorded the statement of

accused persons and proceedings in his

chamber.(ii) The confessional statement of

accused Mohd. Afsal Ex.PW1/A and Mohd.

Adil Ex. PW1/B & PW1/C recorded in two

parts U/s 32 POTA were recorded by PW1

Balaji Srivastava the then DCP Special

Branch, Delhi. He testified that on 22/1/02

ACP Rajbir had sent a request informing

that two accused persons namely Mohd.

Afsal and Adil had expressed their

willingness to make confessional statement

before DCP, so he fixed the date 24/1/02 for

recording the confessional statement. Both


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the accused were produced before him by

the IO at the office of DCP Southern Range,

Operation Cell, Spl Cell, Lodhi Colony where

he had told the IO to produce the accused

Mohd Afsal before him at 5pm. It is statedthat he asked Mohd. Afsal if he had

expressed his willingness to make

confessional statement to which he replied

in positive. Thereafter he asked him whether

he was under any threat, inducement or

pressure which he denied. He testified that

he had put these questions to the accused

after sending IO out of the room. However

his PA ASI Steno Rajeev Sharma was in his

room. He testified that he asked the accused

as to in which language he would like to

make the statement to which he replied that


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he was conversant with English language

and that his statement was recorded directly

on the computer. He stated that he had

given the warning to the accused that he

was not bound to make any confessionalstatement and that if he made any such

confession, the same could be read against

him in evidence. The accused however

showed his willingness to make a

confessional statement. As such he recorded

the confessional statement of the accused

after satisfying himself that the accused was

making the confessional statement

voluntarily. He further testified that the

recording of confessional statement

completed at 6:45pm which was read by the

accused on the computer itself. Thereafter


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print out of the same was taken out which

was again read by the accused who signed

the same on all pages and he (the witness)

signed it on the last page. HE further

testified that after recording the confessionalstatement he called the IO inside the room

and the accused was sent outside and he

told the IO to bring the second accused. He

further testified that accused Adil was then

produced before him and IO was asked to

leave the room. He asked Adil if he had

expressed his willingness to make


in positive. He stated that accused Adil too

was given the warning that he was not

bound to make any confessional statement

and that if he made any such confession,


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the same could be read against him in

evidence but he still wanted to make a

confessional statement. He was also asked if

he was under any pressure, threat or

inducement to which he stated that he wasnot under any pressure, threat or

inducement. The accused was asked as to in

which language he wanted to make the


that he could read, write, speak and

understand English language. He further

testified that the confessional statement of

the accused was recorded on computer and

the subsequent endorsement was also

recorded on the computer. He further stated

that accused was seeing what was being

recorded in the computer and thereafter a


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print out of the same was taken out which

was read by the accused who signed the

same on all pages and that the same was

signed by him on the last page. After

recording the confessional statements , hesealed them in an envelop Ex.PW1/D and

then were put in a bigger envelope

Ex.PW1/E and sealed with his seal and sent

the same to ACMM Patiala House through

IO.

During cross examination he testified

that his office was at PHQ IP Estate during

those days. He stated that he had himself

told the IO that he would come to Lodhi

Road for recording the confessional

statements. He admitted that when the

accused persons were produced before him


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on 24/1/02 he did not adjourn the

proceedings for recording confession to give

any time to the accused persons to think

over. He also testified that the confessional

statement was recorded in the computeravailable in the ACP office on hard disk and

it was not saved and it was deleted after

taking out print. He denied for want of

knowledge if accused persons had made any

disclosure statement before the IO before

they were produced before him. He also

denied that the confessional statement is

only reproduction of the disclosure

statement of accused persons. He further

testified in cross that the confession was

recorded as per the narration made by the

accused and he had not put any question to


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the accused but they themselves narrated

their entire statement.

(iii) PW5 Sh. VK Maheshwari the then

ACMM Patiala House had conducted the

confirmation proceedings regarding theconfessional statements Ex.PW1/A , PW1/B &

PW1/C respectively made by accused Mohd.

Afsal and Adil respectively before PW1 Sh.

Balaji Srivastava the then DCP Spl Branch,

Delhi. PW5 Mr. Maheshwari testified that on

25/1/02 while he was working as ACMM in

Patiala House Courts, ACP Rajbir Singh the

IO of the case produced both these accused

before him for confirmation of their

statements made by them on 24/1/02 before

DCP Sh. Balaji Srivastava. He testified that

their confessional statements were produced


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before him in sealed parcel which were

taken out and he had put his initials on

each page. He proved that the confessional

statements of both accused Mohd Afsal

Ex.PW1/A and Adil Ex.PW1/B & PW1/C werebearing his signatures at point E, F & G

respectively . He further testified that in the

proceeding sheet Ex.PW5/A he recorded the

enquiries made from the accused persons

regarding the confession and thereafter he

recorded their statements Ex.PW5/B & C in

his chamber. He further stated that the

accused persons were identified by the IO.

Mr. Maheshwari was cross examined at

length on behalf of both the accused Mohd.

Afsal and Adil. He admitted that on 25/1/02

the day when the accused persons were


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produced before him for confirmation of

their confessional statements, the security

personnels had taken the security of Patiala

House Courts in view of Republic Day

Parade on the next day, however heclarified that Judicial Officers were not

turned out of their chambers and courts. He

denied the suggestion that the entire Patiala

House Complex including his court were

sealed by security personnels. Regarding the

identity of both the accused the witness

stated that he cannot identified them as

they were not personally known to him and

were identified before him by the IO and he

had only seen them at the time of

proceedings and not thereafter. He denied

the suggestion that accused were not


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produced before him or he recorded the

proceedings at the instance of IO in routine

manner or that the accused persons did not

sign in his presence. He also stated in his

cross examination that both the accusedwere well versed with English language and

were answering his queries in English

language and were also understanding Hindi

language.

C. RECOVERY OF MOBILE PHONE

AT THE INSTANCE OF ACCUSED ADIL

NAZIR KEEN:

(i) The prosecution has alleged that

a mobile phone bearing No. 9811336055 was

recovered from the room of accused Bilal

lying on a table at the instance of accused

Adil Nazir Keen. PW17 SI Sharad Kohli and


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PW16 ASI Anil Tyagi deposed about

recovery of mobile and its seizure vide

seizure memo Ex.PW16/A.

(ii) PW6 Rajeev Pandit Nodal Officer

Sterling Cellular Ltd testified that hereceived letter Ex.PW6/A in his office. The

said letter is written by ACP Rajbir Singh

the IO of the case addressed to the Nodal

Officer, Essar Telephone, Okhla New Delhi

seeking details of the mobile No. 9811336055

since activation alongwith the details

provided by the customer while purchasing

the said mobile phone and sim card. The

witness stated that the said letter was

replied vide call details Ex.PW6/B and the

cell ID 11721 as per the classified list was of

Kotla Mubarakpur area. The perusal of call


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details Ex.PW6/B shows that two calls were

made from the aforesaid telephone one

call was made on 7/1/02 to telephone No.

0113988310 Cell ID No. 11721 IMEI No.

449269417365750 and other call is receivedon the above mobile number from the

telephone number 0113988310 with the same

Cell ID and IMEI number on 8/1/02 .


testified that telephone No. 9811336055 could

have been activated on the same day or

before 1/1/02. He could not say specifically

that the date of activation was 1/1/02 or

not . He also could not state if the above

phone was against cash card or against sim

card as he stated that for the same he

would have to check the official records. He


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admitted that for supplying sim card

customers name and his proof of residence

is asked for. However since the witness was

working on the administrative side so he

could not tell whether the photograph ofthe customer is asked for or not. Similarly

he could not say if verification of signatures

or of customer is also asked for by the sales

department or not.

(iii) PW13 Surender Singh telephone

operator Tis Hazari Exchange, produced the

record pertaining to telephone No. 3988310

and 3957693. He stated that telephone No.

3988310 was installed in the name of

Gopaljee Monaljee Barot at 4482/84 , First

Floor, Dau Bazaar, Cloth Market, Fatehpuri

and other telephone No. 3957693 is installed


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in the same address in the name of GM

Barot.

D. SANCTION:

(i) PW2 Sh. GL Meena, Dy. Secretary

Home proved the sanction U/s 196 Cr.PCaccorded by LG for prosecution of the

accused persons U/s 121A , 122, 123, 121 &

121B IPC as well as sanction under POTO

U/s 3,4,5, 20,21 & 22 POTO as Ex.PW2/A &

PW2/B respectively.

(ii) PW7 DCP TN Mohan, Headquarter

proved the sanction order Ex.PW7/A

accorded by the Commissioner of Police for

prosecution of all the accused U/s 4 & 5

Explosive Substances Act which was

communicated by him to the Court. During

cross examination he denied the suggestion


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that sanction was accorded by the CP

without application of mind or he signed

the draft sanction.

E. EXPERTS OPINION:

(i) PW17 SI Sharad Kohli testified thaton 25/1/02 he had taken the exhibits five in

number i.e 3 samples and two parcels of

detonators from MHC(M) PS KM Pur vide

RC No. 3/21 and two CFSL forms and two

sample seals and deposited the same to

CFSL CGO Complex Lodhi Road. He testified

that so long the case property remained in

his possession the same was not tampered

with. During cross examination the above

referred testimony of PW17 was not touched

at all, as such it has remained unshattered

and is deemed to be admitted by the


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accused persons.

(ii) PW11 HC Pritam Singh who was

working as MHC(M) at PS Kotla Mubarakpur

on 15/1/02 testified that on that day SI

Govind Sharma had deposited five sealedparcels containing case property of the case

in the malkhana which was entered at S.No.

1061 and proved the copy of entry as

Ex.PW11/A. He further testified that SI

Sharad Kohli had deposited on the same

day mobile phone, cash and personal search

articles of the accused persons which he

entered at S.No. 1062 and the photocopy of

the entry is Ex.PW11/B.

He further testified that he sent five

sealed pulandas deposited vide entry No.

1061 to FSL CGO Complex on 25/1/02


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through SI Sharad Kohli.

During cross examination he testified

that form CFSL and sample seal were also

given to him and as mentioned in the road

certificate, sample seal and form CFSL weresent alongwith parcels. Regarding the mobile

phone he testified that it was in a sealed

cover but did not know that it was

containing sim card. He stated that sim card

was not given to him separately.

(iii) PW3 NB Bardhan, Sr. Scientific

Officer, examined the case property

contained in a sealed parcel consisting of

lump of white powdery material which on

examination was found containing potassium

chlorate and could form a component of

Improvised Explosive material. The witness


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proved the report as Ex.PW3/A. The

aforesaid witness was not cross examined by

any of the accused as such the report

Ex.PW3/A given by the witness after

conducting lab test on the materialcontained in parcel S3 is deemed to be

admitted as correct.

(iv) PW4 AR Arora Sr. Scientific Officer

cum Chemical Analyser to Govt of India,

CFSL CBI examined the contents of four

sealed parcels sealed with the seal of GS

and gave his report as Ex.PW4/A. He

testified that he conducted the Lab test on

the contents of these parcels. He stated that

parcel marked S1 and S2 contained brown

colour putti like material about 10 gms in

weight each, whereas parcel No. D1 & D2


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contained two electric detonators each

having white electric wire. He stated that on

conducting the lab test he found that all the

electronic detonators were live. Regarding

the contents of parcel No. S1 & S2 hetestified that on physico chemical

examination the presence of RDX PETN

Ammonium nitrate basis and mixture of

high explosive was confirmed in their

contents. He further testified that the

contents of all the parcels were explosive

substance as defined in the Explosive Act

1908. He was cross examined only on behalf

of accused Adil and Mohd Afsal. However,

nothing material could be extracted during

his cross examination. He was not even

suggested that he did not conduct any test


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on the contents of the parcels or that his

report is incorrect.

F. FIR

(i) PW9 HC Surat Singh had recorded

formal FIR No. 18/02 PS Kotla MubarakpurEx.PW9/A on the basis of rukka sent by SI

Govind Sharma through ASI Anil Tyagi at

11:40pm on 14/1/02.

During cross examination this witness

stated that it took him around 1 hr in

writing the FIR . Regarding Col. No. 7 in the

FIR he stated that it was left unfilled

inadvertently.

G. TENANT VERIFICATION:

PW10 HC Babulal produced the

stranger roll register containing the

information of the strangers found in the


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street or of the tenants occupying premises

in the area as furnished by the Beat

Constable. He testified that in the relevant

entry in the register Ex.PW10/A information

received from Beat Constable on 26/12/01was recorded regarding accused Bilal

Ahmed.

H. PW14 Mohan Madhav Kulkarni,

Police Inspector, CID Crime Branch, Bombay

deposed about furnishing the information

regarding Raju Bhai who was discharged by

the POTA Review committee on 10/5/05 and

Mehboob Karim Merchant who was

discharged by the Court vide order dtd.

20/4/02, to the IO of this case, as such the

testimony of this witness is of no relevance

qua the present accused.


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I. PW18 ACP Rajbir Singh took over

the investigation of the case after the

provisions of POTA were invoked. He

testified that on 15/1/02 he was working as

ACP Special Cell, Lodhi Colony when SISharad Kohli produced all the four accused

namely Mohd Afsal, Adil Nazir, Bilal Ahmed

and Nisar Ahmed Dar before him. After

going through the disclosure statements

made by the accused persons and recovery

memos, he came to the conclusion that they

were members of a terrorist outfit LeT and

had intentions to create chaos and disturb

the government activities on the Republic

Day and that they were liable to be booked

under POTO so the provisions of POTO

were invoked and investigation was taken


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over by him. It is testified that he produced

both the accused in the Special Court

designated under POTO and obtained their

police remand. Thereafter at the instance of

accused Mohd Afsal, he alongwith SI SharadKohli, SI Hridaybhushan and other staff

went to the office of M Ramesh and

Company where he pointed out towards

accused Dilip Bhai vide pointing out memo

Ex.PW17/A and made enquiries from Dilip

Bhai who told him that he had received

instructions from Bombay Office of M.

Ramesh & Co. from Rajesh Khoda Prajapati

the Manager of the Company to give money

to accused Mohd Afsal. He further informed

that money to the tune of Rs. 28.25 lakhs

was received by him from Bombay which


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was given to accused Mohd. Afsal in three

installments and that at the time of taking

money accused Mohd Afsal had given his

code name as Rashid. He further disclosed

that he had received another hawalapayment of Rs. 4.6 lakhs from Bombay office

. The said amount was lying in the black

bag in the office of Dilip Bhai and was

seized vide seizure memo Ex.PW17/C.

Besides three registers and one bill book

was also seized from his office vide memo

Ex.PW17/D. He was arrested and his

personal search was conducted vide memo

Ex.PW17/E and his arrest cum inspection

memo Ex.PW17/DA was prepared. His

disclosure statement was recorded. Police

team was sent to Bombay for making


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enquiries from Rajesh Khoda Bhai Prajapati.

Accused Rajesh Khoda and Mehboob Karim

were arrested. They were interrogated and

their disclosure statements were recorded.

He got recorded the confessional statementsof accused Mohd Afsal and Adil Nazir Keen

from the then DCP Sh. Balaji Srivastava and

also produced the accused persons before

the then ACMM Sh. VK Maheshwari for

confirmation of the disclosure statements.

Besides he collected the details of the

telephone numbers 3988310 and 3957693 and

the call details of mobile No. 9811336055

recovered from Karan Hostel. On 13/3/02 he

seized the belongings of the accused persons

lying in Room No. 3, Karan Hostel and copy

of verification form of tenant and one


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tenant bill of phone No. 4655730 from PW

Ram Kumar the owner of the hostel. He

also collected the relevant entries regarding

verification of tenants from MHC(R) KM Pur

and the report CFSL. Thereafter he appliedfor grant of sanction for prosecution of

accused persons under Explosive Substances,

Act, POTA and U/s 121A/122 and other

provisions of IPC U/s 196 Cr.PC , obtained

sanction, recorded the statement of the

witnesses, made efforts to arrest M. Ramesh

Kumar, Sultan Karim Merchant, Nisar and

Abu Amaar the names disclosed by the

accused persons in their confessional and

disclosure statements.

17. Statement of the accused persons

were recorded U/s 313 Cr.PC whereby they


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have denied the incriminating evidence

against them and claimed to have been

falsely implicated. It is claimed that they

were arrested on 2/1/02 and that the case

property was planted upon them. AccusedMohd Afsal and Adil denied having made

any confessional statement before DCP

Special Cell.

18. The accused persons have

produced in defence 15 witnesses.

(i) DW1 Arvind Barot who was an

employee of M. Ramesh & Co. in Delhi as a

delivery boy and deposed about the raid

conducted by the Government officials in

the office on 15/1/02 at about 5:30/6pm. He

stated that the accused persons were not

accompanying those government officials at


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the time of raid. To the same effect is the

defence witness Shailesh examined as DW2.

(ii) Dw3 Bhaqtawar Zaman the brother

of accused Ansar deposed that accused

Ansar is his younger brother and he alsoknew accused Bilal being his neighbourer

and accused Adil being friend of accused

Ansar. He stated that he came to know of

accused Mohd Afsal only after this case. He

deposed about the rivalry his family had

with the militants. He testified that upto

April 2002 he was working in Ludhiana in a

private company Gazibo Industries Ltd at

Ludhiana. On 31/12/01 at night he received

a call from his brother Ansar that he had

come to Delhi for business and for

reconciliation of accounts and that he would


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spend 2-3 days in Delhi and would visit him

if possible. On 3/1/02 he gave a telephone

call at his house in Anantnag and enquired

about Ansar and he was told that Ansar had

not reached home. On 4/1/02 he madetelephone call at Delhi to one Motilal Nathu

and Mansoor employee of Goodluck

Roadways who told him that Ansar had

visited them on 1/1/02 and 2/1/02 and

perhaps had left for home thereafter. He

again gave a call to his house at Anantnag

on 5/1/02 and came to know that one

Mohd Ashnaf Sheikh had informed his

Fufi's house in Anantnag that Bilal and

Ansar alongwith two more boys were picked

up by the police on 2/1/02 at night and he

had been trying to contact them. He further


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stated that his family gave him telephone

number Bilal and told him that Ansar used

to stay with Bilal and at their instance he

gave a call at Karan Hostel to Bilal's room

but he was not given any satisfactory replyand was told that Bilal had gone

somewhere so he disconnected the phone.

Thereafter he contacted Motilal but he too

could not give any information regarding

accused Bilal and Ansar. So he suggested his

family that he should visit Delhi but he was

prevented by them on account of incident of

attack on Parliament on 13/12/01 and the

coming celebrations of 26th January. On

11/1/02 he learnt from his family that it was

confirmed that accused Bilal and others

were arrested by police in Delhi on 2/1/02.


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admitted that he made no complaint in

writing personally to anyone about picking

up of Ansar and Bilal since his family was

making efforts. He stated that he used totalk to accused Bilal at Karan Hostel

sometimes and he was having his telephone

number.

(iii) DW4 Ghulam Hasan Butt the

neighbourer of accused Bilal and

acquaintance of accused Ansar deposed that

he was informed by Bilal's elder brother on

4/1/02 that Bilal was arrested by the police

on 2/1/02. He further testified that in this

regard he alongwith others met Chairman

Legislative Council Sh. AR Dar on 11/1/02

who assured them that he would take


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concrete steps in this regard. He further

stated that he came to Delhi on 21/1/02

after learning from TV about the arrest of

accused persons.

In cross examination he admitted thatthey did not come to Delhi after coming to

know on 4/1/02 that the accused were

apprehended.

(iv)DW5 Ghulam Mohd Wani to whom both

the accused Bilal and Ansar were known,

also deposed on the lines of DW4 that on

4/1/02 he came to know about the arrest

of accused Bilal and Ansar on 2/1/02. He

further deposed that on 11/1/02 he

alongwith other Biradari people met the

Chairman of Legislative assembly in this

regard.


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stated that no written representation was

given to any authority about theapprehension of accused persons on 2/1/02.

He further stated that some relative of Bilal

studying in college had given a call to his

Phufi and from there the information was

given to the family of Bilal that they were

arrested by the police. This witness could

not give the name of the person who had

given the telephone call nor from where

Bilal and Ansar were lifted by the police.

(v) DW6 Gulam Mohd Sheikh claimed

himself to be neighbourer of accused Ansar

and that accused Bilal is his co-villager. He


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stated that he learnt on 4/1/02 about the

arrest of accused Ansar by Delhi police on

2/1/02.


could not depose as to where accused Ansarused to stay in Delhi or when he left for

Delhi. He admitted that he made no written

representation to anyone regarding their

arrest.

(vi) DW7 Arvind Bhai Prajapati, DW8

Bharat Kumar and DW9 Babu Bhai are

defence witnesses relating to the firm M .

Ramesh & Co and are not relevant qua the

present accused persons.

(vii) DW Motilal Nathu has been

wrongly mentioned as DW9 and be read as

DW9A. He deposed that he knew accused


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Ansar Ahmed Dar for the past about 2 years

as he had business dealings with him. He

stated that he had last met him on 1/1/02

alongwith two persons and told him that

they wanted to purchase packing materialand then they again met him on 2/1/02 and

he was told that the two persons

accompanying Ansar Ahmed were to

purchase the packing material. During his

testimony he pointed out towards accused

Adil and Mohd Afsal as the two persons

who had accompanied Ansar. He stated

thereafter the accused did not meet him

and after 7-8 days he saw news on TV and

saw four persons including three of whom

had met him on 2/1/02 . He testified that in

between he had received a phone call from


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the house of Ansar when either his brother

or someone else had called him and

enquired about Ansar and he had told them

that he had left his place.

(viii) DW10 Hari Ram Nigam dealing inpacking material, to whom the accused

Ansar Ahmed Dar was introduced by DW9A

Motilal deposed that accused Ansar

alongwith others had come to him on

2/1/02 and asked him to give quotation for

packing material but he told him that they

should bring the sample of nature of

packing material wanted by them only

thereafter he could give the quotation. The

accused told him that they would come

later but after 2/1/02 accused Ansar did not

visit him.


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(ix) DW11 Bashir Ahmed Constable

with J & K police posted at PS Achabal

distt. Anantnag produced the copy of FIR

No. 02/2002 dtd. 9/1/02 registered with PS

Achabal U/s 302 IPC Ex.DW11/A attested bythe SHO alongwith letter Mark A. During

cross examination this witness admitted that

the copy of FIR was not attested by SHO

but ASI Ghulam Hussain Dar since SHO was

on leave and he also admitted that in the

FIR the name of either the deceased or the

accused is not mentioned.

(x) DW12 Ghulam Mohd Record

Keeper Home Department J & K , New

Secretariat, Srinagar produced the

summoned record i.e file No. Home/PB-

V/Misc./2002. He testified that the photocopy


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of letter of Chairman, J&K Legislative

Council is in the file which was Marked as

Ex.DW12/A.


stated that letter was received in his officeon 16/1/02 through General Receipt but he

could not state the letter was delivered by

hand or came through post as the record

was maintained by a Clerk of General

Receipt in the register. However he did not

produce the aforesaid register. He also could

not state if the Chairman of Legislative

Council was in Jammu or Srinagar in

January 2002.

(xi) DW13 Sanjay Pandita Sr. Assistant

J & K Legislative Council testified that Sh.

Pravesh Diwan an IAS officer in Jammu was


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posted as Resident Commissioner, J & K

House, 5 Prithviraj Road, New Delhi and

that an official telephone bearing No.

4611506 was installed at Prithviraj Road. He

further testified that he could identify thesignatures of Ashfaq Ahmed Wani on

Ex.DW13/A at point X. However this witness

did not state as to who was Ashfaq Ahmed

Wani and the perusal of the document

Ex.DW13/A shows that it is a certificate

issued in respect of Letter No.

PO/HCM/759/LC-02 dtd. 14/1/04 addressed

to the then Hon'ble Chief Minister Jammu

and Kashmir and a certificate was issued to

the effect that this letter was issued from

the office of J&K Legislative Council

Secretariat , Srinagar/Jammu vide letter No.


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PO/HCM/893/LC-04 dtd. 20/8/04. Even the

name of Ashfaq Ahmed Wani is not

mentioned in the aforesaid certificate and it

is signed by Private Secretary to the

Chairman Legislative Council which areidentified at point X on Ex.DW13/A by the

witness to be of Ashfaq Wani.

This witness further testified that this

letter Ex.DW13/A was in respect of letter No.

PO/HCM/759/LC-02 dtd. 14/1/02. He further

stated that fax dtd. 14/1/02 is Ex.DW13/B

and that this copy was sent by Legislative

Council Chairman to the then Chief Minister

Sh. Farooq Abdullah of J & K at New Delhi

Kashmir House on 14/1/02 at 10:30am and

was received at New Delhi at 10:38am on

the same day vide receipt Ex.DW13/C. He


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further stated that the fax bears signatures

of Legislative council Chairman Abdul

Rashid Dar whereas receipt Ex.DW13/C was

bearing the signatures of PA to the

Chairman Legislative council at Point X2. Hefurther stated that the office maintains

dispatch register of the letter / fax. He

produced the extract of the dispatch register

as Ex.DW13/D and encircled the relevant

portion at point X3. He further stated that

on 11/1/02 on Friday parents of all the

accused from Kashmir came to the residence

of Chairman Legislative Council in the

afternoon and complained that their

children had been taken by Delhi Police.

During cross examination he admitted that

the letter / certificate Ex.DW13/A finds


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mention date as 14/1/04 and not as 14/1/02.

He further stated that a corrigendum

Ex.DW13/E was issued in the month of

September 2004. He admitted that he had

not verified the contents of these letterspersonally nor had any knowledge if

concerned authority gave reply to all these

letters. He admitted that reply of the

concerned authority is not on the official

record. He further clarified that parents of

Kashmiri boys came to Chairman in routine

as General Public and no official

investigation of the antecedents of the

accused were conducted by the Chairman.

(xii) The other witness examined in

defence is DW14 Abdul Rashid Dar, the

Chairman of Jammu & Kashmir Legislative


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Council since the year 2000. He testified

that on 11/1/02 the parents of accused

Mohd. Afsal, Adil Nazir and Bilal Ahmed

Mir as well as brother of Ansar Ahmed Dar

came to him and told him that aforesaidaccused had gone to Delhi on 30/12/01 and

that they were picked up by Delhi police on

2/1/02. He further testified that they were

anxious to know about the whereabouts of

the accused and requested him to help them

in tracing them. He stated that it was

Friday and that Saturday, Sunday were

Holidays, so he asked them to come on

Monday morning. On 14/1/02 they again

visited his residence at Jammu in the

morning and then he contacted the Chief

Minister of State who was in Delhi at that


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time and informed him about the incident.

The Chief Minister asked him to fax the

names and particulars of the accused

persons, so he instructed his PA to prepare

the fax message so that it would be readyby the time he reached his office. He

further stated that he reached the office at

9:30am, signed the fax and it was sent by

his Secretary. He identified his signatures on

the fax message Ex.DW13/B. It is further

stated that around 11am, he again spoke to

the Chief Minister who told him that he

had received the fax and would be coming

to Jammu in the evening, then he would let

him know about the matter. Further that

Chief Minister returned in the evening and

told him that he had taken up the matter


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with the Home Secretary and was told that

a case had been registered and the accused

would be produced in the court on the next

day.

During cross examination he admittedthat he did not personally verify as to

whether the accused persons had left for

Delhi on 30/12/01 and whether they were

actually picked up by the police on 2/1/02

and believed whatever the relatives of the

accused persons told him. He admitted that

he did not verify the antecedents of three

accused other than accused Mohd Afsal who

was a Joint Engineer and admitted that

they were not known to him personally. He

further stated that Chief Minister gave him

the impression that the accused persons


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were arrested on 14/1/02 and assured him

that the accused were alive and that was

their anxiety. He further stated that he had

no knowledge that the accused persons

were found in possession of huge quantityof RDX, huge sum of hawala money and

electronic detonators.

19. I have heard arguments from both

the parties who have also submitted written

arguments. I have gone through the written

submissions and the relevant material on

record carefully.

20. It is submitted by the defence

counsel that all the accused persons are

falsely implicated in the present case and

nothing incriminating was recovered from

their possession and has submitted that a


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fax dtd. 14/1/02 was sent by DW14 Abdul

Rashid Dar the then Chairman Jammu &

Kashmir Legislative Council to the then

Chief Minister of Jammu & Kashmir at Delhi

and deposed that the parents of accusedMohd Afsal, Adil Nazir, Bilal Ahmed and

brother of Ansar Ahmed came to him on

11/1/02 and informed him that the accused

persons were picked up by the police on

2/1/02 and they were anxious to know

about their whereabouts. It is submitted that

as per the testimony of this witness he

called the relatives of the accused persons

on Monday and they visited him on 14/1/02

in the morning. He contacted the Chief

Minister of J & K who was in Delhi at that

time and as desired by the Chief Minister


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he sent a fax Ex.DW13/B containing the

names and particulars of the accused

persons and that he personally spoke to the

Chief Minister who confirmed having

received the fax and told him that he wouldlet him know the status of the accused

persons by the evening and in the evening

he was informed by the Chief Minister that

the case was registered against the accused

persons. It is further submitted that DW13

Sanjay Pandita produced the original fax

message in the court, the fax copy of which

was sent to the Chief Minister and that he

also produced the dispatch register

maintained in the office to prove that the

fax message was sent to the Chief Minister.

It is further submitted that PW15RamKumar


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owner of the Karan Hostel also did not

support the version of the police as he

stated that all the four persons were present

in the room when the police picked them

up. It is submitted that on the other handthe case of the prosecution is that two

people were apprehended from the gate

while two people were apprehended from

Room No. 3 of Karan Hostel.

21. Regarding the siteplan Ex.PW8/DA

it is submitted that the entire case of the

prosecution is based on the allegation that

explosions and huge amount of cash was

recovered from 1804/2, Room No. 3 Karan

Hostel, Parsadi Gali, Kotla Mubarakpur and

that it is also the case of the prosecution

that SI Sharad Kohli PW17 had prepared the


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siteplan at the instance of PW8 SI Govind

Sharma. It is submitted, the perusal of the

siteplan shows that property bearing No.

1804/2 was a vacant plot and that the place

of recovery in the siteplan is shown as1804/1 Parsadi Gali, Kotla Mubarakpur. It is

further submitted that the siteplan does not

show any first floor and it only shows the

stairs going to the second floor which

proves that no such recovery of explosives

and cash was effected from the accused

persons nor they were apprehended from

there.

22. Regarding recovery of incriminating

material from the possession of accused

persons it is submitted that as per the

siteplan two boys were apprehended on the

7/29/2

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