MUSTAQALI ABBASALI SAIYED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) With the consent of the learned Advocates for the parties, this appeal is heard finally and disposed of at the admission stage.

(2.) The present appeal is preferred under Section 34 of the Prevention of Terrorism Act, 2002 ( SPOTA , for short) and directed against the order of rejection of discharge application dated 20-06-2007 passed by the learned Special Judge (POTA) under Section 227 of the Code of Criminal Procedure, 1973 ( SCr. P. C. , for short).

(3.) Mr. A. D. Shah, learned Advocate appearing for the appellant, further submitted that, as per the prosecution case, the appellant was possessing fire-arms with two pistols which were seized on 23-11-2004. The recovery was disputed by the appellant. However, the learned Advocate submitted that there is nothing on record to show that the appellant ever used this particular weapon for the purpose of any terrorist activity. POTA was repealed on 21-09-2004. In the facts and circumstances, the learned Advocate submitted that the day on which the arms came to be recovered, POTA was not in existence, and there was no evidence collected by the investigating agency as to the use of the weapon by the appellant in any terrorist activity prior to 21-09-2004. Thus, the provisions contained in Section 3(3) of POTA cannot be invoked for the alleged recovery of the arms from the appellant. The learned Advocate submitted that even the FSL Report makes it abundantly clear that the pistols which were recovered were not standard and semi-automatic. In view of the aforesaid facts and circumstances, the recovery of the arms would not attract the provisions of POTA. There was no evidence to show that the recovery of arms had any connection with any of the accused. The learned Advocate submitted that the appellant has thus, made out a case for discharge for the offences alleged to have been committed under the provisions of POTA. In the alternative, the learned Advocate has also prayed to stay the proceedings of POTA Case No. 2 of 2005 during the pendency of appeal.