AMIN KHAN(MOHD) Vs. STATE

JUDGEMENT

(1.) By the present appeal, the Appellant challenges the judgment dated 18th February, 2010 whereby he has been convicted for offences under Section 120B read with Section 122 IPC, Section 122 read with Section 120B IPC and Section 40 Unlawful Activities (Prevention) Act, (in short UAP Act) and the order on sentence dated 25th February, 2010 whereby he has been directed to undergo rigorous imprisonment for a period of 10 years and a fine of Rs. 10,000/- under Section 122 IPC read with Section 120B IPC; and 5 years and a fine of 10,000/- under Section 120B read with Section 122 IPC and 10 years rigorous imprisonment with Rs. 10,000/- as fine under Section 40 of the UAP Act.

(2.) Learned counsel for the Appellant contends that there are material contradictions and improvements in the testimony of the witnesses. Further besides PW2 Inspector Naresh Kumar, there is no witness to the allegedly recovered articles as the same were neither recovered in the presence of PW1 Lalit Prasad and the panch witnesses. The panch witnesses PW3 and PW7 Ram Pal and Anurag Tiwari who were not present for the proceedings merely signed the same. PW3 and PW7 have categorically stated that they were not present when the recovery took place on the 15th June, 2005 and signed the panchnama prepared on 17th June, 2005 when the pullandas were not opened. Even PW4 Vijay Kumar was not the witness of recovery as he stated that when the alleged consignment was checked/ opened he was sent to bring the tape for measurement. Even PW2 Inspector Naresh Kumar admits that there was no other official of his Department present when he checked the goods concerning the Appellant. It has not been proved that the alleged recovered articles were kept in safe custody from 15th June, 2005 to 17th June, 2005 when the panchnama was prepared. Reliance is placed on Mousam Singha Roy and Ors. Vs. State of West Bengal,2003 3 JCC(SC) 1358 wherein since the recovery was not witnessed by the panch witnesses, it was held that the evidence was insufficient to prove the recovery. The entire case of the prosecution is based on the fact that the Appellant spoke to Sajjad. The said Sajjad has neither been arrested nor charge-sheeted. Further neither the mobile phone has been proved to be belonging to Sajjad Sheikh nor has voice in the alleged conversation been analyzed by an expert. Thus, there is no material to prove that the Appellant was talking to Sajjad Sheikh. Further prosecution has failed to prove that the signature on the alleged airway bills exhibited as PW-21/A was of the co-accused Sajjad Sheikh who sent the alleged consignment, as no witness has deposed about being familiar with the signatures of Sajjad Sheikh nor have the same been sent to hand-writing expert along with admitted signatures of Sajjad Sheikh. There is no material on record to prove the charge of waging war against the Government of India. Hence, the conviction under Section 122 read with Section 120B IPC is not warranted. Further, since the co-accused Ubaid-UlAhad has been acquitted, there is no material on record to prove the charge under Section 120B IPC. By allegedly collecting the consignment containing a satellite phone which is a prohibited item, the Appellant cannot be said to be the financer or was delivering goods to terrorist organizations. The sanction has not been granted as per the procedure laid down and it is hence defective. Reliance is placed on Inspector of Police A.P. Vs. K. Narasimhachary,2005 3 JCC(SC) 1840. The first information report was received belatedly by the learned Metropolitan Magistrate on 28th June, 2005. The Appellant was kept in illegal custody from 15th June, 2005 to 17th June, 2005 which fact has been corroborated by the statement of PW5, the landlord of the Appellant who stated that the Appellant resided in his house only up to 15th June, 2005.

(3.) Learned APP on the other hand contends that the Appellant was caught red-handed while clearing the consignment sent by one Sajjad Sheikh vide airway bill No. 57959016 from Jeddah as personal effects and on checking the said consignment it was found containing one Thuraya Hughes satellite phone with charger along with 60 antennas, one local charger, one belt, 6 sets of air-phones and 40 hand-sets of make I-COM head-phones. The Appellant was accompanied by PW4 Vijay Kumar who has fully supported the prosecution case. On the telephone of Vijay Kumar which was used by the Appellant for conversing with Sajjad Sheikh interception was done on 15th June, 2005 and 16th June, 2005 which showed the involvement of the two, in these nefarious activities. The permission for interception was duly obtained from the competent authority. The detention receipt was prepared and was duly signed by the panch witnesses PW3 & PW7. PW2 has proved that the articles recovered were kept in safe custody and there was no tampering with it. Though no direct conversation speaks about terrorism, however it is evident that the Appellant and the co-accused Sajjad Sheikh had sent this consignment including the satellite phone for terrorist activities. In the statement under Section 313 Cr.P.C. the Appellant states that the consignment belonged to Vijay, however when Vijay was examined in the Court, no suggestion was given to PW4 Vijay Kumar that articles belonged to him. Thus, the plea taken in the statement under Section 313 has not been put to the witness. Further the statement of Appellant was recorded under Section 108 of the Customs Act and the conviction can be safely based on the said statement. PW4 has categorically stated that on 29th December, 2004 the Appellant lost the mobile phone and Sajjad was calling on his mobile to talk to the Appellant. PW20, the forensic science expert has tallied tape-recorded conversation with the specimen voice to be that of the Appellant. Even if PW6 Sheikh Rashid who had prepared the transcript had turned hostile, there is evidence of PW17 Umesh Barthwal who stated that PW6 Sheikh Rashid translated the conversation and prepared the transcript. The airway bill sent by Sajjad Sheikh is in the name of Appellant which fact has been admitted by the Appellant in his statement under Section 313 Cr.P.C. In view of the fact that the receipt of the consignment and possession of satellite phone by the Appellant has been proved beyond reasonable doubt, the onus shifted on the Appellant under Section 106 Evidence Act to explain that the same was not for terrorist activity which onus the Appellant has failed to discharge. The sanction has been duly proved by PW11 Shri V.B. Saxena. Hence the Appeal be dismissed.