Aslam Shabbir Sheikh vs The State of Maharashtra

Revati Mohite Dere, J.—By this application, the applicant seeks his enlargement on bail in connection with C.R. No. 168 of 2012 initially registered with the Deccan Police Station, Pune and subsequently transferred to ATS Police, Mumbai and re-registered as C.R No. 9 of 2012, for the alleged offences punishable under Sections 307, 435 and 120B of the Indian Penal Code read with Sections 3, 4 and 5 of the Explosive Substances Act read with Sections 3 and 25 of the Arms Act and under Sections 16(1)(b), 18, 20, 23, 38 and 39 of the Unlawful Activities (Prevention) Act of 1967 as amended in 2008 and under Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act (''MCOC Act'').

The case pertains to five bomb blasts that took place in Pune City at around 7:00 p.m in the areas of Deccan Gymkhana, Bal Gandharv Rang Mandir and other adjoining areas. A live bomb was also recovered from one of the spots. These bombs were placed in the basket of bicycles. Pursuant to the said five blasts that took place at various locations in Pune City, an FIR came to be lodged initially with the Deccan Police Station, Pune as against unknown persons. Thereafter, the investigation came to be transferred to the ATS, Mumbai. Nine accused came to be arrested in connection with the aforesaid offences and some accused are stated to be absconding. According to the prosecution, the said bomb blasts were planned by the accused with the intent of striking terror in the minds of the people and for causing deaths/injuries to persons and/or causing loss or damage or destruction of property. According to the prosecution, the said bomb blasts were planned to avenge the death of one Quatil Siddique, a member of a banned terrorist organization, Indian Mujahideen. It may be noted here, that Quatil Siddique was arrested in connection with the conspiracy to commit bomb blast at Dagadu Sheth Ganpati Mandir in Pune. Pursuant to his arrest, Quatil Siddique was lodged at Yerwada Central Jail, Pune, where he was murdered by two persons in the Jail. It is the prosecution case, that to avenge the death of Quatil Siddique, the members of the Indian Mujahideen, a banned terrorist organization, acting as an organized crime syndicate conspired to cause the bomb blasts. It is alleged by the prosecution, that initially there was a plan to kill the assailants of Quatil Siddique when they were brought to Court by firing at them. However, as the said plan could not be executed, it was decided to cause the bomb blasts.

The present applicant is original accused No. 8, who was arrested in the aforesaid C.R on 13th January, 2013. Mr. Mundargi, learned Senior Counsel for the applicant contended; (i) That the applicant was admittedly not involved in the commission of the bomb blasts that occurred on 1st August, 2012; (ii) That the firearm weapons and cartridges allegedly supplied by the applicant were admittedly not used in the commission of the offence/bomb blasts that took place on 1st August, 2012. He submitted that infact one pistol allegedly sold by the present applicant was recovered from Irfan Mustafa Landge (accused No. 4) and that two pistols were recovered at the instance of Firoz @ Hamza (accused No. 3) in a Delhi Arms case. He submitted that in the Delhi Arms case, the present applicant has not been arraigned as an accused; (iii) Nothing incriminating has been recovered at the instance of the present applicant nor is there any confession made by the applicant under Section 18 of the MCOC Act. He submitted that the only alleged material as against the applicant is, the confessional statement of the co-accused Irfan Landge, which is recorded under Section 18 of the MCOC Act. According to him, the said confession of the co-accused Irfan Landge does not, in any way, show that the applicant was involved in the conspiracy to commit the bomb blast / in the commission of the bomb blasts that took place on 1st August, 2012. He submitted that at the highest, the confessional statement shows that firearms and cartridges were sold by the applicant to Irfan Landge, much prior to the hatching of the conspiracy to commit the bomb blasts. He submitted that infact, the firearms and cartridges were allegedly sold by the applicant to Irfan Landge (original accused No. 4) and Imran Khan (original accused No. 2) for a consideration; (iv) Lastly, he submitted that merely because it has come in the confessional statement of the co-accused that the applicant shared Jihadi ideology, that by itself, is not sufficient to show the complicity of the applicant in the present case.

Learned Special P.P Mr. Thakare opposed the bail application. At the outset, it may be noted that the learned Special P.P does not dispute the fact, that the applicant was not involved either in the preparation of planting of the bombs or in the actual bomb blasts that rocked Pune City on 1st August, 2012, nor does he dispute the fact, that the firearms and cartridges allegedly supplied by the applicant to the co-accused were not used in the commission of the said offence.

According to the learned Special P.P, the background of the commission of the present offence i.e. of serial bomb blasts is to be considered. He relied on the confessional statement of Irfan Landge in support of his contention to show that the present applicant had agreed to supply firearms to avenge the death of Quatil Siddique. He submitted that the initial plan of the members of the Indian Mujahideen was to take revenge of Quatil Siddique''s death, by firing at his assailants whilst they were brought to the Court. It is for this reason, that Irfan Landge (accused No. 4) and Imran Khan (accused No. 2) approached the present applicant for procurement of the firearms. He submitted that the confessional statement of Irfan Landge shows that the applicant was aware of the purpose for which the firearms and cartridges were acquired, as the same was informed to the applicant by Irfan Landge; that the applicant allegedly sold the firearm and cartridges and also disclosed to Irfan Landge that he could be contacted any time for anything else (bada saman) and that he would provide the same. He submitted that the confessional statement of Irfan Landge clearly shows that in April, 2012, Riyaz Bhatkal had sent Rs. 1 lakh by hawala to Irfan Landge and asked him to give the said amount to Imran Khan (accused No. 2) and on instructions of Riyaz Bhatkal in May, 2012, Imran Khan asked Irfan Landge to procure two pistols from the present applicant.

The learned Special P.P. placed emphasis on the fact, that initially, the applicant had refused to sell the firearms, but when informed that the firearms were required for the purpose of Jihad, the present applicant readily gave two pistols and 9 live cartridges, albeit for a consideration. According to the learned Special P.P., the applicant by supplying these firearms, not only committed an illegal act, but also rendered assistance to the organized crime syndicate and as such the applicant had reason to believe that the persons who purchased the firearms were engaged in assisting the organized crime syndicate and that after having knowledge of the same, had sold the pistols in furtherance of their illegal activities. According to the learned Special P.P, the act of the present applicant would come well within the definition of the term ''abet'' in Section 2(1)(a) of the MCOC Act and under Sections 2, 3 and 4 of the Explosive Substances Act. He submitted that Explanation 2 of Section 108 of the Indian Penal Code makes it clear that for constituting an offence of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused. He submitted that the act of the applicant i.e. of supplying pistols and cartridges for eliminating the accused who had murdered Quatil Siddique, would squarely fall within the purview of Section 3(2) of the MCOC Act. He submitted that the provision of Section 3(2) of the MCOC Act is pari materia with Section 18 of the UAPA Act. He submitted that considering the material on record, it cannot be said that there are no reasonable grounds for believing that the applicant is not guilty of the offences with which he has been charged. He submitted that the present offence has been committed when the applicant was on bail.

Heard learned Senior Counsel for the applicant and the learned Special P.P. at length. Both the learned Counsel relied on several judgments in support of their contentions. In order to consider the role of the present applicant in the commission of the alleged offence, it would be necessary to consider the material that has come on record as against the applicant. At the outset, it may be noted that admittedly even according to the prosecution, the applicant was not involved in the commission of the bomb blasts that took place on 1st August, 2012 nor is it the prosecution case that the firearms allegedly sold to Irfan Landge (accused No. 4) were used in the commission of the offence. A perusal of the final report reveals the prosecution case and the material qua the applicant which is as under:

(i) that during interrogation, Irfan Landge, original accused No. 4 and Imran Khan, original accused No. 2 disclosed that they were in contact with the present applicant and had approached him and asked him to assist in carrying out Jihad by providing firearms and ammunition for the purpose of assassination of religious/political leaders and also for firing on the police. It is alleged that the present applicant also shares the same Jihadi ideology and hence, he knowingly assisted the accused by providing firearms and ammunition, knowing that the firearms were being procured for the purpose of assassination of religious/political leaders and for firing on the police;

(ii) that during the course of investigation of this case, one country-made pistol, one magazine, four live cartridges acquired by Irfan Landge (accused No. 4) from the present applicant, were recovered at the instance of Irfan Landge under a memorandum panchnama;

(iii) that the accused Nos. 1 to 4 had revealed after their arrest, that two pistols and ammunition sold by the present applicant were recovered by the Delhi Special Cell, at the instance of Firoz @ Hamza (accused No. 3) from his workshop at Pune under a memorandum panchnama in C.R No. 16 of 2012 (it is not in dispute that the applicant has not been arraigned as an accused in the said C.R by the Delhi Special Cell);

(iv) that investigation has revealed that the present applicant is a resident of Shrirampur, Maharashtra and is a known criminal having Jihadi ideology, and is a close associate of Saquib Nachan (a convict in the Ahmedabad Bomb Blast case) and is also an accused in a case alongwith Saquib Nachan; and;

(v) that statements of witnesses reflect the Jihadi attitude of the applicant, his involvement in unlawful activities and his association with members of terrorist organisations.

The aforesaid five grounds are set out in the final report as evidence collected as against the present applicant. As far as the memorandum panchnama under Section 27 of the Evidence Act, of recovery of a firearm and cartridges at the instance of Irfan Landge (original accused No. 4) is concerned, that is a matter of record. The facts as disclosed in the memorandum statement being inadmissible, except to the extent of discovery of weapons, cannot be considered. The confessional statement of Irfan Landge (original accused No. 4) was recorded under Section 18 of the MCOC Act on 9th January, 2013. Certain paragraphs are being reproduced which have been relied upon by both, the learned Senior Counsel for the applicant as well as the learned Special P.P. The relevant paragraphs read thus:

There is a statement of one witness, dated 15th January, 2013, who is an acquaintance of both, the applicant and Irfan Landge. He has disclosed in the said statement that he was aware that Irfan Landge was in touch with the present applicant and that Irfan Landge and Imran Khan would come to Shrirampur to meet the applicant from 2008. It is alleged by the said witness that the present applicant had disclosed to him in July, 2012 that Irfan Landge, Imran Khan and their friend were working for Indian Mujahideen, a terrorist organization and that, the said persons were going to take revenge for the death of Quatil Siddique''s murder. He has alleged that the applicant had disclosed to him that for the said Jihadi work, he had given three pistols and cartridges.

Apart from the aforesaid, there are statements of two witnesses which have been recorded under Section 164 of the Code of Criminal Procedure. One of the witnesses has stated as under :

That in 2005, he had gone to visit Maulana Zameer along with his friend. He has stated that his friend disclosed to him that he had some friends in Aurangabad, who worked for Jihad and disclosed the names of Maulana Ameer, Bilal, Aaqif Biyabani, Kashif Biyabani, Abdul Aziz, Zubair, etc. He has stated that Maulana Zameer introduced them to the aforesaid persons and there was discussion on Jihad with respect to Babri Masjid and Godhra issues. He has stated that in 2006 in the Aurangabad Arms Hall case, Maulana Ameer, Bilal, Aaqif Biyabani, Abdul Aziz, Zubair and Sayyed Mustafa were arrested. He has stated that he met Kashif Biyabani in the Mumbai Sessions Court. He has stated that the persons who were in custody were asking Kashif to recruit new persons for Jihad. He has further alleged that Kashif disclosed to him that he was in touch with Fayyaz Qagzi and asked him to go and meet Fayyaz Qagzi in Saudi. He has stated that Irfan Landge after completing his education had come to reside in Raj Nagar in 2007 and that he had met Irfan Landge who used to talk about Jihad. He has stated that Kashif had given him books on Jihad and that he had given the said books to Irfan Landge. He has stated that thereafter all the aforesaid persons would regularly chat with each other and that they would regularly meet one another. He has stated that the said persons would refuse to disclose anything to him or keep in touch with him. He has stated that the present applicant, a resident of Shrirampur would meet Saquib Nachan and that both had Jihadi ideologies.

Second witness whose statement is recorded under Section 164 Cr. P. C., has stated as under :

The said witness has stated that he knew the present applicant from 1997 and that the present applicant was his relative. He has stated that in a murder case at Padga, the present applicant was arrested and that the said witness had gone to meet the present applicant in Mumbai along with the cousin of the applicant. He has stated that after two to three years, the present applicant was acquitted from the said case. He has stated that after the applicant''s acquittal, he started harbouring Jihadi ideologies. He has stated that he knew Irfan Landge, and that Irfan Landge and the applicant were in touch with one another. He has stated that the present applicant had also disclosed to him that Imran Khan and Irfan Landge belong to the Indian Mujahideen group and that they work on Jihadi lines and that Saquib Nachan, a resident of Padga also has Jihadi ideologies. He has further stated that in July, 2012, when he met the applicant, the applicant had disclosed to him, that Irfan Landge and Imran Khan had taken three pistols and live cartridges from him and that the applicant had supplied the same to the said persons to avenge the death of Quatil Siddique and that for doing Jihad work.

The question that falls for consideration is whether the aforesaid material qua the applicant is sufficient to deny bail to the applicant. As noted earlier, the applicant was admittedly not part of the bomb blasts that took place on 1st August, 2012, nor the weapons/cartridges allegedly supplied by the applicant to Irfan Landge and Imran Khan, were used in the said offence. A careful perusal of the confessional statement of Irfan Landge reflects that the applicant was not concerned with the bomb blast and it prima facie appears that he was not aware of the conspiracy to commit bomb blast in Pune city. The material qua the applicant appears to be, that he supported Jihadi ideology and supplied pistols and live cartridges to Irfan Landge and Imran Khan to avenge the death of Quatil Siddique, however, admittedly, the said weapons/cartridges were not used by the co-accused in the bomb blast. Even the statements recorded under Section 164 do not, in any way, show that the applicant was aware of the conspiracy to commit bomb blast. All that the statements under Section 164 show is that the applicant knew Irfan Landge and Imran Khan. It is pertinent to note that the applicant is stated to harbor Jihadi ideologies with Saquib Nachan, however, Saquib Nachan has not been made a co-accused in the said case. Prima facie, at this stage, there appears to be no nexus between the supply of arms and ammunition by the applicant to Irfan Landge and the bomb blast that took place on 1st August, 2012.

According to the prosecution, the act of the applicant in supplying arms and ammunition would squarely be covered by the term ''abet"'' as defined under Section 2(a) of the MCOC Act and under Section 108 of the IPC. Section 2(a) defines ''abet'' as under :

"(a) "abet", with its grammatical variations and cognate expressions, includes,-

(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate;

(ii) the passing on or publication of, without any lawful authority, any information likely to assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and

(iii) the rendering of any assistance, whether financial or otherwise, to the organised crime Syndicate."

Explanation 2 of Section 108 reads thus :

"Explanation 2.-To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused."

Reliance on the aforesaid definitions by the learned Special Public Prosecutor to connect the applicant with the alleged offence, prima facie, appears to be little farfetched at this stage, considering the material on record, as of today. Merely because the applicant had supplied arms and ammunition to Irfan Landge and Imran, for a consideration, to avenge the death of Quatil Siddique which ultimately could not be executed, cannot be said to include an act subsequently committed by the co-accused i.e. of causing bomb blasts to avenge the death of Quatil Siddique. The nexus between the two is doubtful. Prima facie, it appears that the conspiracy to commit bomb blast was subsequent to the supply of the arms and ammunition by the applicant. Prima facie, at this stage, it is doubtful, if the applicant can be attributed with the knowledge of conspiracy to commit bomb blasts and of the commission of bomb blasts. The prosecution as on today, has not brought on record any material to show that the applicant had knowledge or was aware that bomb blasts were to be planned/caused. Merely because the applicant harboured Jihadi ideology, had supplied arms/cartridges for avenging the death of Quatil Siddique and had promised to supply bada saman, cannot be a ground to extend the subsequent act of bomb blasts to the applicant, by taking recourse to the aforesaid definitions. Infact, the applicant could have been prosecuted for a separate independent offence.

Considering the material on record, as it stands today, prima facie, it is difficult to come to a conclusion that the applicant is guilty of the offences with which he has been charged. The applicant has been in custody since his arrest on 13th January, 2013 i.e. for more than 21/2 years. As far as antecedents are concerned, it appears that the applicant has been acquitted in all the 13 cases. Accordingly, the application is allowed on the following terms and conditions :

(i) The applicant be released on bail on executing PR Bond in the sum of Rs. 50,000/- with one or two sureties in the like amount;

(ii) The applicant shall attend the Kalachowky Police Station, A.T.S, once in a month on the first Saturday of every month between 11:00 a.m. to 12:00 noon till the conclusion of the trial;

(iii) The applicant shall not tamper or attempt to contact the complainant, witnesses or any person concerned with the case;

(iv) The applicant shall inform his latest place of residence and mobile contact number immediately after being released and/or change of residence or mobile details, if any, from time to time to the Court seized of the matter and to the Investigating Officer of the concerned Police Station;

(v) The applicant to cooperate with the conduct of the trial;

(vi) If there is a breach of any of the aforesaid conditions, the prosecution shall be at liberty to seek cancellation of the applicant''s bail.

The aforesaid observations are prima facie, for deciding this application, and the Trial Court shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this order.

The Application is allowed in the aforesaid terms and is accordingly disposed of.

Parties to act on the authenticated copy of this order.