ASLAM PARVEZ Vs. GOVERNMENT OF NCT OF DELHI

JUDGEMENT

(1.) Criminal Appeal No. 941 of 1998 has been preferred by Mohd. Ishtiaq and Criminal Appeal No. 307 of 1998 has been preferred by Aslam Parwez against the judgment and order dated 2-2-1998 of Addl. Designated Court (II) Delhi by which the former was convicted under Section 25 of the Arms Act and Section 5 of Explosives Substances Act and was sentenced to two years RI and a fine of Rs. 1,000/- under the first count and four years RI and a fine of Rs. 1500/- under the second count and the latter was convicted under Section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred as the TADA) and was sentenced to five years RI and a fine of Rs. 1500/-. The sentences imposed upon Mohd. Ishtiaq were ordered to run concurrently.

(2.) The case of the prosecution, in brief, is that on 8-9-1987 Surinder Kumar, who was posted as Sub-Inspector in PS Subzi Mandi was patrolling in the area along with Shashi Pal, Head Constable, and some others. At about 9.30 a.m. the S.H.O. of P. S. Subzi Mandi informed him that he had received information that Mohd. Ishtiaq resident of Kabir Basti was manufacturing arms in his workshop and was supplying the same to others and that lot of arms were kept in his workshop. After receiving the information he requested 3 or 4 passers-by namely Om Prakash Saxena, Rakesh Kumar Sharma, Bilu Ram and others and went near house No. 347 Kabir Basti. At about 10.00 a.m. Mohd. Ishtiaq (A-1), Saleem (A-2) and Jameel (A-3) came there. A-1 opened the lock of the factory and all of them went inside and closed the door but the same was not bolted from inside. At about 11.00 a.m. Surinder Kumar pushed the door open and entered the room along with members of the raiding party. They saw that A-1 was having a canvass bag in his hands from which A-2 was taking out a country made pistol and was handing over the same to A-3. One country made revolver was lying on the adjoining table. All the three accused were caught by the raiding party. The canvass bag was found containing two country made unassembled revolvers, one pen pistol, some cartridges, one crude hand grenade, four shells of HE 36 grenade and ten live sutli bombs. A book captioned as Encyclopedia of Ammunition which described the process of manufacturing of weapons with illustrations and photographs was found lying on the table. All the recovered articles were sealed in 11 packets and the same were given to Rakesh Kumar. The police party also found a tin containing 18 parts for manufacturing arms which were sealed in a packet and also a bag containing sulphur, potassium sulphate, yellow colour powder which was also sealed. There were some more tins which contained various objects used for manufacture of arms, drill machine, one blade/saw and 8 tools which were also sealed. Surinder Kumar S.I. then wrote a rukka which was sent to the police station through Kailash Chandra constable for registration of the case. A-1, A-2 and A-3 led the raiding party to Bara Hindu Rao on 9-9-87 where Vakeel, Aslam and Afzal were found standing and they were arrested. A-2 while in police custody made a disclosure statement on 12-9-87 that he had test exploded two bombs in the hills of Hindu Rao Hospital and A-2 and A-3 led the police party to the said place, but nothing was found. Thereafter they led the police party to a place near the tomb where some explosive material in open condition was found lying which was sealed. A-4 Aslam Parwez could not be arrested and therefore proceedings under Sections 82 and 83, Cr. P. C. were taken against him. The case of the prosecution further is that after about 8 months on 2-5-1988 Aslam Parwez (A-4) was produced in the Court and at that time he had kept his face covered with a cloth. The Investigating Officer moved an application for holding an identification parade but the same was declined by the accused. Thereafter an application was moved for police remand which was granted. The case of the prosecution further is that A-4 made a disclosure statement on 3-5-1988 that he had been given one revolver by A-1 and that he had kept the same concealed by the side of the building under construction which was said to be opposite the factory from where the arms were recovered. The accused took the police party to the aforesaid place, dug out some earth by the side of the wall and retrieved one revolver which contained three live rounds in its chamber. The revolver and cartridges were sealed separately.

(3.) After completion of investigation, papers were submitted before the Deputy Commissioner of Police and after sanction had been accorded, charge sheet was filed before the Designated Court. The notification regarding the area was issued on 20-10-87 i.e. subsequent to the recovery made on 12-9-87 and accordingly A-1, A-2 and A-3 were charged under Section 25 of Arms Act and Section 5 of Explosive Substances Act. Since the recovery at the pointing out of Aslam alias Pappu was made subsequent to the issuance of notification, he was charged under Section 5 of TADA. The prosecution in support of its case examined 17 witnesses and filed some documentary evidence. The articles recovered from House No. 347, Kabir Basti, Subzi Mandi and the revolver at the pointing out of A-4 was also produced in Court. A-1 and A-3 in their statement under Section 313, Cr. P. C. denied the case of the prosecution and stated that they had been falsely implicated by the police. A-1 stated that nothing was recovered from his possession and that he had already been arrested before the alleged time of recovery. A-4 in his statement denied the prosecution case and stated that he had come to surrender before the Court when he was arrested and the revolver and cartridges had not been recovered at his pointing out but the same had been planted. The accused however did not any evidence in their defence. The Addl. Designated Court (II) believed the case of the prosecution and convicted and sentenced the accused, as stated earlier.