ADNAN BILAL MULLA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal under Section 34 of the prevention of Terrorism Act, 2002 (henceforth, "pota" for short) , challenging the order dated 18.1.2005, delivered by Special Judge under POTA, Mumbai, in bail application No. 14 of 2004, arising out of POTA Case No. 2 of 2003, by which learned Judge rejected bail plea of the appellant-accused. Although by virtue of section 1 (6) , POTA is deemed to have come into force on 24th day of October 2001 and was to remain in force for the period of three years from the date of its commencement, i. e. upto 23.10. 2004, in view of clause (b) to said sub-section (6) of Section 1, which reads; "1 (6). . . . . . . . . . . . . . . . . . but its expiry under the operation of this sub-section shall not affect:- (a). . . . . . . . . . . . . . . . . . . . . . . (b) any right, privilege, application or liability acquired, accrued, or incurred under this Act, or. . ", learned APP has not challenged maintainability of the appeal under Section 34 of the POTA. This is because, the appellant-accused was arrested while the Act was still in force and, therefore, right to seek bail in the light of section 49 and right to appeal, conferred by section 34 against any order, not being interlocutory order of special court, to High Court, had accrued in favour of the appellant, during the period when the Act was still in force. Since sub-section (2) of section 34 requires every appeal under sub-section (1) of the said section, to be heard by a bench of two judges of the high Court, present appeal has come up for hearing before us.

(2.) Having gone through the impugned order, which began with the submissions of two sides, without giving details of the prosecution story, on the basis of which crimes were registered and a charge-sheet was filed before the Special Court, which is registered as POTA case No. 2 of 2003, we have obtained prosecution story from the learned APP, which she has submitted in writing on 16.2.2006 under the caption "submissions on behalf of the Prosecution". We have taken these submissions on record and marked as Exhibit A for the purpose of identification. Acing to the prosecution, all the accused in this case, those who are arrested, those who are wanted and those who are deceased, hatched a conspiracy to wage war against the State and for that purpose, conspired to commit terrorist acts, such as, bomb blasts and assassinations of prominent Hindu leaders, in places like Mumbai, Pune and other prominent places. In prosecution of the object of conspiracy, acts of preparing bombs and exploding those, were committed by some of the accused persons, in this case. According to prosecution, materials, such as, sophisticated fire arms, i. e. AK-47 and AK-56 rifles, pistols, explosives and hazardous chemicals, were collected. There were also arrangements for training Muslim youths in operating those sophisticated fire arms and also handling, dismantling and reassembling those, in preparing and exploding bombs. According to the prosecution, the present appellant is one of the accused involved in three bomb blast cases. The first one took place on 6.12.2002 at 16.50 hours at Mumbai Central Railway Station in mcdonald's Restaurant situated in the main Railway station. In this bomb blast, 25 persons were injured and public property to the tune of Rs. 28. 00 lacks was damaged. CR. No. 124 of 2002 was registered by Bombay central Railway Police Station, regarding this incident and eight accused persons were arrested in connection with the same. Subsequently, investigation was transferred to DCB, CID, Mumbai, vide CR No. 59 of 2003. Second bomb blast of the series was caused on 27.1.2003 at about 20. 10 hours in vegetable market at vile Parle (East). The bomb was kept in a bag hung to a bicycle parked in the vegetable market. As a result of this bomb blast, one woman died and 33 persons were injured. In addition, public property worth Rs. 2. 00 lacks was damaged. CR. No. 38 of 2003 was registered with Vile Parle Police Station, which was subsequently transferred to DCB, CID, as CR. No. 9 of 2003. Eleven persons were arrested in connection with this incident. Third bomb blast was caused at Mulund in a karjat bound Central Railway suburban local train, on 13.3.2003 at 19.56 hours. Eleven commuters died on the spot and 86 were injured, simultaneously causing damage to the public property to the tune of five lacks. Kurla railway Police Station registered an offence vide CR. No. 52 of 2003 and 16 persons were arrested. This matter was also subsequently transferred to DCB, CID, mumbai, as CR. No. 21 of 2003. It is informed that now, investigation of all three matters is entrusted to a common officer of the rank of ACP. Since the prosecution believed that all three bomb blasts were outcome of one conspiracy, with common object to create fear and terror in the minds of common people and society at large and thus achieve common goal, one charge-sheet was filed, which is registered as pota Case No. 2 of 2003 and totally, 16 arrested persons were produced before the court. It is further added that explosive substance used in two bomb blasts at Vile parle and Mulund was ammonium nitrate, and gun powder was used at Bombay Central.

(3.) On reference to the impugned order, it appears that apart from the grounds for release on bail, the contentions were raised regarding illegal detention and non-observance of the guide lines laid down by the Apex court in the matters of D. K. Basu v/s State of West bengal, AIR 1997 S. C. 610 and other judicial pronouncemtns. The learned Special Judge observed that the contentions regarding illegal detention by non observance of the guidelines laid down by the Honourable apex Court, could be brought to the notice of the court during the course of the trial and those contentions could be considered with appropriate material for the same. Special Judge observed that although statements recorded under Section 27 of the Indian Evidence Act, were not admissible against persons other than makers of the same, evidenciary value of the discovery, pursuant to the discovery statement, cannot be brushed aside. Likelihood of delay in disposal of the case, was held as ground not available for seeking release on bail, by observing that the appellant could insist for expeditious trial. Observing that the material collected during investigation indicated involvement of the appellant in an offence punishable with imprisonment for life, because of grave nature of the accusations, since it was alleged that the appellant had carried ak-47 rifles and he was also instrumental as driver of the jeep for the purpose, of transporting certain persons to Mahuli hill, near Padgha, learned Special judge held that apprehension of long term imprisonment may impel appellant to avoid the trial or to flee from justice. Learned Special Judge also felt that, probability of appellant tampering with the evidence, if released on bail; could not be ruled out, because all the witnesses are residents of village Padgha. The learned Judge has also taken a note of the fact that appellant-accused is closely related to main accused, who is said to be mastermind of the entire conspiracy. Finding it that grant of bail to the appellant-accused would be risky, bail plea of the appellant is rejected.