Abdul Jabbar vs The State

R.C. Chopra, J.—The appellant prays for suspension of his sentence during the pendency of the appeal. He has been convicted by the Trial Court u/s 4A and 4-B of the Explosive Substances Act, 1908 and sentenced to undergo RI for seven years. I have heard learned Counsel for the appellant-petitioner and learned Counsel for the State. I have gone through the records.

The facts relevant for the disposal of this application, briefly stated, are that the appellant and his co-accused were arrested along with some explosive Substances on the basis of an information received by Special Cell of Delhi Police that the underworld gangsters with the help of terrorists belonging to JKLF were trying to hit various places in Punjab and Delhi. They intended to cause bomb blasts at different places with a view to threaten the unity and sovereignty of India. Information was developed and on 21.5.2001 a raiding party was organised in which one public witness was also joined. At about 8.30 P.M. a Red Maruti Car entered the parking lot of Bangla Sahib Gurdwara. Two persons including the appellant herein came out from Car and started moving towards main road of Baba Kharak Singh Marg. The third accused was waiting to whom they handed over two packets containing explosive. The raiding party apprehended all the three and found that in both the packets, including the one which was handed over by the appellant to his co-accused, PETN, an explosive, and other articles used for manufacturing bombs were there. They were arrested, put to trial and ultimately convicted by the learned Trial Judge vide the judgment under appeal.

The appeal filed by the appellant has been admitted and would be taken up in due course. Learned Counsel for the appellant has prayed for bail mainly on the ground that the appellant has been in custody for the last about 1-1/2 years and his appeal is not likely to come up for disposal at an early date and as such his sentence may be suspended. It is also argued that PW 7, the only public witness produced by the prosecution in support of its case did not support the prosecution story of two persons coming out from the Car and as such, the case against appellant was not proved beyond reasonable doubt. It is stated that the appellant was merely a taxi Driver and had been falsely implicated by the police in this case.

Learned Counsel for the State on the other hand has opposed the prayer for suspension of sentence on the ground that the appellant has been held to be guilty of a serious offence and in case he is released on bail he may flee from justice and abscond to avoid undergoing imprisonment. It is also argued that the learned Trial Judge has properly discussed the statement of the public witness PW 7 and the statements of the remaining prosecution witnesses who deposed about the recovery of the explosive from the appellant and returned a finding of guilt against the appellant.

The contention of the learned Counsel for the appellant that the case of the prosecution against the appellant is not proved beyond doubt for the reason that PW 7 the only public witness has said that only one person had come in the Car whereas prosecution case is that two persons had come in the car cannot be accepted firstly for the reason that the statement of PW 7 that only one person had come in the car does not appear to be correct. According to him the person who had come in the car had alighted from left side door of the car which means that some one else was also there in the car who was driving the same otherwise the person driving the car could not have come out from left side door. PWs 10, 11, 12 and 14 who are police officers have fully supported the prosecution case in regard to recovery of the explosive from the appellant. Their testimonies cannot be discarded merely on the ground that they are police officers. Furthermore the learned Trial Judge, in para 7 of the judgment, has found that the evidence on record shows that all the three accused in the case including the present appellant were in regular touch with each with prior to the incident which falsifies the plea of the appellant that he was merely a Taxi driver and did not know the other accused involved in this case. The telephone recovered from the appellant was being used not only for contacting the other co-accused but calls were made to Pakistan and Dubai also which is an extremely incriminating circumstance against the appellant who has not been able to explain and as to why and for what purpose he was making calls to Pakistan and Dubai and also to his other co-accused who according to him were not known even to him. Therefore, it cannot be said that the case of the prosecution against the appellant is full of doubts and the appellant is likely to be acquitted.

The plea of the appellant that the appellant has already undergone a sentence of about 1-1/2 years and the matter is not likely to be taken up at an early date cannot be made a ground for suspension of sentence and his enlargement on bail for the reason that the appellant who has already been convicted may abscond to avoid the punishment imposed upon him. The allegations against the appellant are quite grave and the offence is serious. Therefore, this Court is not inclined to suspend the sentence awarded to the appellant during the pendency of the appeal and release him on bail. His application therefore stands dismissed. Nothing stated herein shall be taken as an expression of opinion on the merits of the appeal pending before this Court as the observations made herein are tentative only.