Mohamad Asik and Another vs State of Tamil Nadu

V. Kanagaraj, J.—All these criminal appeals are directed against the judgment of conviction and sentence dated 8-3-2001 made in Sessions

Case No. 1 of 1999 by the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee thereby sentencing all the

appellants/accused to undergo R.I. for a period of four years for the offence punishable u/s 120-B, IPC, to undergo R.I. for a period of four years

and to pay a fine of Rs. 500/- each in default to undergo R.I. for one month for the offence u/s 4 of the Explosive Substances Act, 1908, to

undergo R.I. for a period of four years and to pay a fine of Rs. 500/- each in default to undergo R.I. for a period of one month for the offence u/s

5 of the Explosive Substances Act, 1908, to undergo R.I. for six months for the offence u/s 17(1) of the Criminal Law Amendment Act, 1908.

The case of the prosecution is that the appellants are all members of ''Al-umma'' organisation, which is banned by the Government of Tamil

Nadu; that between 27-3-1997 and 14-2-1998 at Door No. 34, Maroof Sahib Street, Anna Salai, Chennai, the appellants conspired to commit

illegal act i.e. to plant powerful explosives in important cities all over Tamil Nadu and to strike terror in the minds of the people of Tamil Nadu and

immediately after the bomb blast incident was over, their intention was to endanger life or to cause serious damage to public properties by

themselves or to enable other persons by means thereof and in pursuance of the conspiracy, the accused, on 14-2-1998 at the said address were

possessing explosive substance and engaged in illegal activities to bring up the organisation.

On the above accusation, the Court below having framed charges punishable u/s 120-B, IPC, r/w. Sections 4 and 5 of the Explosive

Substances Act, 1908 and Section 17(1) of the Criminal Law Amendment Act, would conduct a thorough trial of the case, wherein on behalf of

the prosecution, 13 witnesses would be examined for oral evidence as P.Ws. 1 to 13 and would mark 12 documents for documentary evidence as

Exs. P. 1 to P. 12 besides marking 18 material objects as M.Os. 1 to 18. On behalf of the defence, they would examine, one Thandavamoorthy as

D.W. 1 for oral evidence with no documents marked on their side.

The Court below, in consideration of the facts and circumstances of the case and in the light of the evidence adduced, held the

appellants/accused guilty of the offences charged and sentenced them as aforementioned. Aggrieved, A. 5 and A. 11 have come forward to prefer

the Criminal Appeal No. 230 of 2001, A. 7 has come forward to prefer the Criminal Appeal No. 232 of 2001; A. 1 to A.4, A. 6, A.8, A. 10 and

A. 13 have come forward to prefer Criminal Appeal No. 420 of 2001 and A.9 has come forward to prefer the Criminal Appeal No. 793 of 2001.

The case of the prosecution is that accused 1 to 13 are members of the banned organisation by the Tamil Nadu Government viz., ''Al-umma''s,

that between 27-3-1997 and 14-2-1998, at Door No. 34, Maroof Sahib Street, Anna Salai, Chennai, the accused conspired to plant powerful

explosives in major cities all over Tamil Nadu and to strike terror in the minds of the general public and to cause serious danger to life and damage

to public properties by themselves or through others and in pursuance of the conspiracy, on 14-2-1998, at the said place, which is the

headquarters of the office of the said banned organisation, they possessed explosive substances and engaged themselves in illegal activities in

promotion of the ideals of the organisation.

The prosecution case in evidence through the witnesses examined and documents and material objects marked, as aforementioned, is that P.W.

1 who was the Inspector of Police, Law and Order in D2-Anna Salai P.S. would depose that on 14-2-1998, at various places in Coimbatore,

bomb blasts were carried out particularly aiming at Mr. L.K. Advani as the target orchestrated by Muslim Fundamental organisation ''Al-umma''

having Coimbatore as its headquarters, not only to show its protest against Bharatiya Janata Party but also to express its displeasure with the

functioning of the said party and to create disturbance and disharmony among the religions, that the founder-leader of the organisation viz. Basha,

having been arrested in many other cases based on the cases registered by the Central Bureau of Investigation and got released and was staying

along with his accomplices and they were conspiring to disturb the ensuing elections making use of the explosive substances and indulging in

extremist activities as it came to be known on reliable information; that on information of threat to BJP leader Sri Advani, who was to visit Madras,

they have inspected the place occupied by the said group on 14-2-1998 at about 8.15 p.m. and sent messages and sending advance intimations in

Ex. P.1 to the concerned Courts, he prepared FIR and when he approached the particular place, the first accused Basha and 12 others were

engaged in preparing country bombs and petrol bombs with the help of empty liquor bottles and on seeing the police party, they attempted to

escape but coordinating the place, all the 13 persons were arrested in the presence of the witnesses viz. G.P. Papa and Santharupan; that they also

seized various types of knives, patta knives and veechu aruvals numbering 25, ten wooden logs, empty liquor bottles of 250 ml. filled with iron

particles numbering seven and soda bottles numbering 20, petrol bottles with the thread numbering three, bottles with iron scrap numbering 11 and

180 ml. bottles with thread numbering 22 and 5 litre petrol contain can, 2 kg. chilly powder bag, many incriminating books, cash of Rs. 14,800/-

belonging to the first accused, a jute bag containing 40 black stones and yet another bag containing 40 broken bricks, five country bombs, ordinary

detonators numbering 50, gelatine sticks numbering ten and electric detonators numbering ten have been seized under the cover of Ex. P. 2

mahazar attested by the witnesses; that having taken all the accused and the seized articles to the police station, he registered the case in his station

crime No. 294/98 under Sections 4 and 5 of the Explosive Substances Act and Section 17 of the Criminal Law Amendment Act in Ex. P. 3 FIR

and recorded the confessional statement of the accused and sent the FIR and the M.Os. to the Court and on 15-2-1998, the accused were

remanded to judicial custody.

Through this witness, all the material objects would also be marked from M.Os. 1 to 15 and this witness would depose that they have been sent

for chemical examination and the report obtained; that he examined all the 13 witnesses and obtained their statements and as per the instructions of

the higher officials, on 8-3-1998, copies were served in the prison for all the 13 accused under the National Security Act and for further

investigation, the case diary was sent to Triplicane Police Station besides sending all the material objects to the police station on 15-2-1998.

P.W. 2 was the Revenue Inspector, Mylapore, who along with another Santharupan accompanied P.W. 1 during his raid and during the arrest

of the accused and seizure and himself and Santharupan attested the seizure mahazar in Ex. P. 2 and he would adduce evidence adhering the

evidence of P.W. 1.

P.W. 3 would depose that he is a resident of Nair Appa Pillai Street, Chennai-14 and this witness would speak about his landlord Humayun Bai

asking him to arrange somebody as tenant of yet another house belonging to the landlord at Anna Salai and through a tea stall owner Ali Bai two

persons viz. Sikander and Apsar came to engage the house for rent and on payment of Rs. 75,000/- as advance they agreed to be the tenants for

a monthly rent of Rs. 4,000/- and the key was handed over and the said house was occupied that day itself and when he went there the next day,

at the door steps, one of them was standing with AK-47 and did not allow him to enter in and thereafter he met these two persons Sikander and

Apsar, that he saw the first accused and ten others occupying that house; that when he enquired with Sikander as to who they were, he replied that

he would give the pipeline and asked him to go out; that it was intimated to the owner of the house and thereafter he did not go that side at all and

then he came to know that they were members of the ''Al-Umma'' terrorist organisation.

P.W. 4 is the tea shop owner at Mount Road and a resident of a place near Paragon theatre opposite Kalaivanar Arangam and having his tea

shop next to the place of occurrence and this witness would also adduce evidence adhering P.W, 3 regarding letting out the house to Sikander and

Aktar.

P.W. 5 is the landlord and this witness would also speak to the letting out of his house in favour of Sikander and Aktar and on coming to know

that some other persons have been occupying the place, he asked Sikander and Aktar to vacate the house for which they replied that they would

vacate it in a month; that for one month, they did not also give the rent; that he issued legal notice and lodged a complaint with the police but no

action was initiated and when he went there demanding rent, he was not allowed to enter in and he was asked to come only telephoning; that

thereafter from the newspaper, he came to know that the police have caused the arrest of Basha and his gang; that then he came to know that his

house was sealed.

P.W. 6 is a tailor stitching seat covers for two wheelers and he would depose that he knew the first accused, who used to come to the

Mosque for prayer and he would also depose that some other persons would also come along with him.

P.W. 7 is a motor mechanic. He would depose that he knew A. 1 since he used to come for prayer to the mosque and that from the news he

came to know that he was arrested.

P.W. 8 was a clerk at Police Commissioner''s Office and he would receive Ex. P. 6 requisition for sanction and on 30-6-1998, the sanction

was accorded in Ex. P. 7.

P.W. 9 is the Scientific Officer in the Chemical Research Centre at Madras at the time of occurrence. He would depose that on receipt of the

requisition letter from the XIII Metropolitan Magistrate, Egmore, Chennai for chemical analysis of the material objects seized in connection with

Cr. No. 294/98, Anna Salai P.S., since the bombs were live, they were sent back for defusing and thereafter they were again sent as empty; that

they received seven articles of that sort; that they found petrol in first three items and in the 4th item, they detected Sulphur, Aluminium,

Ammonium, Nitrate and Nitroglycerine and Nitrocellulose; that in the 5th item; they detected Nitroglycerine and Nitrocellulose and items Nos. 6

and 7 contain petrol. The report issued by this witness would be marked as Ex. P.9.

P.W. 10 was the Deputy Superintendent of Police, Tamil Nadu Commando School, Bomb Detection and Disposal Squad, Chennai-28. This

witness would depose that on 23-2-1998, on receipt of the requisition from the Magistrate, submitting the same with the Superintendent of Police

and at his directions to initiate necessary action, he broke the parcel accompanied by Head Constable Murugavel and Inspector Siluvai and after

checking-up the list, they defused and destroyed the articles by means of burning and blast and taking certain samples, he sent them to the Director

of Forensic Science Department for chemical analysis with a request to send the report to the XIII Metropolitan Magistrate, Egmore, Chennai-8

and the letter sent by them to the XIII Metropolitan Magistrate, Chennai would be marked as Ex. P. 10.

P.W. 11 was a clerical staff in the Magistrate''s Court and this witness would adduce evidence to the effect that he received the material

objects as per Form No. 95 numbering 23 and sent the same along with Ex. P. 11 requisition from the Court for chemical analysis and received

from the chemical analysis centre, Ex. P. 9 report and for the receipt of the form, the receipt issued is Ex. P. 7.

P.W. 12 was the Inspector of Police and the Investigating Officer and he would adduce evidence to the effect that he took-up the investigation

in Cr. No. 294/98 of D.2 Anna Salai P.S. on 16-2-1998; that al-ready another Inspector caused the arrest of the accused and sent them for

remand and has also sent the M.Os. for chemical analysis; that he had also examined the witnesses and recorded their statements on 14-2-1998

and 15-2-1998, he had sent the accused for remand and the M.Os. to the Court; that on 14-2-1998, he had registered the FIR and sent the same

to the Court; that the accused were also put under preventive detention taking such steps; that this witness having done re-investigation, having

verified and re-examining all that being done by his predecessor, he would also examine witnesses Mohadeen Basha and Humayun Alifa and also

witnesses Nos. 2 and 3 who have already been examined by his predecessor; that he also examined Shabuddeen and Kadirvel and recorded their

statements; that on 21-2-1998, he examined the Court Clerk of the XIII M.M., Egmore, Chennai. He also examined one Muthusamy of the Tamil

Nadu Commander School for Detection and Destruction of Explosive Substances; that on 26-2-1998, he examined the chemical analysis and

thereafter obtaining the sanction from the District Collector which was Ex. P. 7, he proceeded with the further investigation. He would further

depose that the amount of Rs. 14,700/- seized from the first accused is belonging to the first accused himself. This witness would ultimately depose

that on completion of his investigation on 1-7-1998, he filed the charge-sheet under Sections 4 and 5 of the Explosive Substances Act, 1908 and

Sections 17(1) and 14 of the Criminal Amendment Act and u/s 120-B of the IPC.

P.W. 13 is the sanctioning authority and the then District Collector, Chennai and this witness would depose that the Commissioner of Police,

Chennai sent his requisition dated 17-6-1998 for according sanction in the matter of D3 Anna Salai P.S. Crime No. 294/98 since under Sections

4 and 5 of the Explosive Substances Act also, the case has been registered against certain accused; that on receipt of the request on 26-6-1998,

which is Ex. P. 6, he also received all the material documents of the case; that having examined those documents'' u/s 7 of the Explosive

Substances Act as per G.O. Ms. No. 1188 Home dated 28-5-1991, he accorded sanction for prosecution on his being satisfied that the case was

fit enough for prosecution and the sanction order was accorded in Ex. P. 7 against the accused Nos. 1 to 13 named therein.

On the part of the defence, the sole witness examined by them was one Thandavamoorthy and this witness would depose that when he was

serving as Grade-I Constable in G-2 Anna Salai P.S., one Marudapandiyan was the Inspector at that time, that on the date of raid of the residence

of S.A. Basha, he was not in the raiding party and after finishing his duty, he had gone back home at that time, but he could not remember what

time did he finish his duty that day; that he could not also remember what was his duty time that day but would say that on 15-2-1998, he came

back for duty and even that day, what time did he come for duty he did not know; that on 23-2-1998, he was given a sealed cover by the Court

of XIII M.M., Egmore, Chennai, but he does not know what is the dimension of the cover nor the weight of the same, but he was asked to hand it

over to the explosive detection and destruction squad; that he took it, keeping the same in the cycle carrier and excepting that cover, he did not

take any other article or item; that at 2.30 p.m., he gave it to somebody in the office, but he could not remember what is the rank of the officer

concerned; that thereafter he went to the police station at Egmore and again at 6.30 p.m., he went to the property stores of the Court; that the next

day, from the explosive department, they gave another cover which he entrusted with the forensic department; that he did not know what they did

with the cover that was entrusted the previous day; that at the time of giving cover or thereafter when he was examined, they did not give anything

to him; that he did not serve at the residence where A. 1 lived; that he did not know that at the time of entrustment of this job, whether in the

requisition it was stipulated that he should bring the passport.

During arguments, the learned counsel appearing on behalf of the appellants would submit that the occurrence was dated 14-2-1998 at 8.15

p.m., that the charges are two in number, the first one that the accused continued to be the members of the banned organisation ''Al-umma'' and

secondly that they were in possession of explosive substances without authorisation and hence the charges under Sections 4 and 5 of the Explosive

Substances Act; that so far as the first charge is concerned, the punishment is rigorous imprisonment; that for the offences under Sections 4 and 5

of the ''Explosive Substances Act, all the accused were sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of

Rs. 500/- for each offence in default to undergo rigorous imprisonment for a further period of one month each; that for the offence u/s 120-B, IPC,

all the accused were sentenced to undergo rigorous imprisonment for a period of four years and for the offence u/s 17(1) of the Criminal Law

Amendment Act, 1908, the accused were sentenced to undergo rigorous imprisonment for a period of six months, that it is not the members of this

organisation but it is the continuation of the membership after banning of the organisation.

The learned counsel for the appellants would further submit that under Article 19 of the Constitution of India, it is a fundamental right to have

such organisations or members of such organisations and that there cannot be a punishment with retrospective effect, that under these

circumstances, the prosecution must establish that after banning, these persons continued to be members of the banned organisation; that it was

banned on 14-2-1998; that 13 persons were taken into custody on the very same charge that the organisation was banned and would cite the

evidence of the Investigating Officer P.W. 12 and would exhort that for a charge u/s 17(1) of the Criminal Law Amendment Act, no conviction

could sustain since the said Act itself has been declared unconstitutional by the Honourable Supreme Court in State of Madras Vs. V.G. Row, .

The learned counsel would further submit that the Investigating Officer specifically admits that they are not liable to be punished; that the

second charge is possession of explosive substances. Citing from the evidence of P.W. 1 wherein he has deposed to the effect that he did not

know whether any number would be there in the detonators or where they have been manufactured etc.; that detonator is not a piece of wire but it

is an article; that what does it contain, he does not know and whether the detonator alone would blast or whether there is explosive power inside it

also he does not know; that he did not so far handled the detonators; that he has been imparted training for a week in explosive substances; that he

cannot say that what is detonator without seeing the same; that merely seeing a detonator, he cannot say that it is dangerous; that for storing the

detonators, no special arrangement need be necessary and they could be separately stored but nearby no explosives could be kept. Citing the

above deposition, the learned counsel for the appellants would submit that P.W. 1 is not an expert nor could he say accurately as to what is the

detonator or the explosive substance or its power or usage etc. and therefore his evidence is not sufficient to decide so far as the character of the

articles seized are concerned. The learned counsel would also point out reading out the evidence of the sole defence witness D.W. 1 who was

cited as a prosecution witness but not examined on the prosecution side, and hence he was examined as a defence witness. He would say that

some materials were handed over by the expert; that the recovery of these articles were on 14-2-1998, but P.W. 10 says that on 23-2-1998, they

were sent for chemical analysis and for nine days, the articles were in the custody of the police; that for these nine days delay, no explanation

comes forth from the prosecution, that the FIR was at 11 o''clock, that the search and seizure was at 8.00 p.m.; that at 7 o''clock, the time is

advanced and they have been sent to the Court by the police; that with the advance intimation, the FIR and seizure mahazar were all sent together

to the Court which reached at 4.00 p.m. on 15-2-1998.

The learned counsel appearing on behalf of the appellants in Criminal Appeal Nos. 230 and 232 of 2001 would submit that on 14-2-1998, the

G.O. was passed and the police gets information about the ''Al-umma'' activists particularly that of A. 1; that regarding Section 120-B, IPC, the

apprehension of conspiracy that P.W. 1 received was on ''no reliable information; that u/s 165 of the Police Standing Orders, he has power; that

Ex. P.3 FIR was registered but at 4.00 p.m. on 14-2-1998; that in Ex. P. 2, there is no crime number; that in Ex. P. 1 there is a crime number; that

the police have violated all procedures in the seizure; that no observation mahazar or rough sketch of the scene of occurrence had been prepared;

that on 14-2-1998, the FIR had been registered at 4-30 p.m. itself, that though P.W. 9 the Forensic Expert was examined before the Court, his

161, Cr. P.C. statement was not recorded.

The learned counsel, at this juncture, would refer to Ex. P. 8, letter written by the XIII M.M., Egmore, Ex. P. 9 the report from the Chemical

Analysis and Ex. P. 10 the letter written by the Officer-in-charge of the Commandos Bomb Squad to the Court.

The learned counsel would deal with Section 293 of the Cr. P.C. in relation to the reports of certain Government Scientific Experts which

could be used as evidence in any enquiry, the trial or other proceedings and that the Court may summon and examine any such evidence as to

submit his report. The learned counsel would then point out that Exs. P. 8 to P. 10 do not tally. At this juncture, the learned counsel would cite a

judgment of the Honourable Apex Court in The State of Rajasthan Vs. Rehman, wherein dealing with the provisions of Central Excise and Salt

Tax Act and the Rules framed thereunder, it has been held :

The object of the search under the Act is only to ascertain whether there is a contravention of the provisions of the Act or the Rules; Rule 201

enables the authorised officer to make a search only for the investigation of an offence. The power of search given under Chapter 14 of the Cr.

P.C. is incidental to the conduct of investigation which the police officer is authorised by law to make. Searches made by a police officer during the

course of an investigation of a cognizable offence can properly be approximated with the searches to be made by the authorised officer under Rule

201 of the Rules for, in the former case, the police officer makes a search during the investigation of a cognizable offence and in the latter the

authorised officer makes the search to ascertain whether a person contravened the provisions of the Act or the Rules, which is an offence. There is

also no reason whether conditions should be imposed in the matter of a search by the police officer u/s 165 of the Criminal Procedure Code, but

no such safeguard need be provided in the case of a search by the excise officer under the Rules. The legislature, by stating that Section 18 of the

Act that the searches under the Act and the Rules shall be carried out in accordance with the provisions of the Code relating to searches, clearly

indicated that the appropriate provisions of the Code shall govern searches authorised under the Act and the Rules. We, therefore hold that the

provisions of Section 165 of the Code must be followed in the matter of searches under Rule 201 of the Rules. The recording of reasons u/s 165

does not confer on the officer jurisdiction to make the search, though it is a necessary condition for making a search. Section 165 of the Code lays

down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is

ignore the material part of the provisions governing searches. If that can be ignored, it cannot be said that the search is carried out in accordance

with the provisions of the Code of Criminal Procedure, it would be a search made in contravention of the provisions of the Code.

In reply, the learned Government Advocate on the criminal side citing Ex. P. 11 the letter written by the Court to the Bomb Detection Squad

would point out that ten items noted therein which Were sent for chemical analysis; that they were returned for certain compliance and they were

again sent back at the time there were only seven items since their contention is that even though ten items were sent, only seven items were

examined leaving three as incorrect, that regarding the search, the evidence of P.W. 1 is reliable; that P.W. 2 is one who was accompanied by

P.W. 1 during the time of search and seizure; that P.Ws. 3 and 4 are the tailor and the tea stall owners who would appear to the letting out the

premises in favour of two persons viz. Sikander and Apsar without knowing that, the premises is going to be occupied by these accused for their

illegal purposes; that P.W. 5 is the owner of the house, who would plead innocence and on coming to know that unconnected persons were

occupying the building, he wanted the accused to vacate the same. Pointing out from the evidence of P.W. 9 particularly the information part of Ex.

P. 9, the learned Government Advocate would submit that the chemical analyst has certified that they detected Nitrogen and Nitrocellulose, which

are high explosives; that the substance detected in Item No. 4 can be used in improvised explosive devices; that petrol can be used in explosive

device; that items Nos. 4 and 5 are used up in analysis.

Reading out the opinion offered by the expert witness P.W.9, the learned Government Advocate would exhort that no other evidence need be

necessary for the accused were in possession of these prohibited items, which are explosive substance and for the purpose of making use of some

other substances seized for explosive substances and therefore the offence has been made out completely under the Explosive Substances Act also

and since no other better purpose has been brought forth for the accused to have joined hands with each other totalling 13, the conspiracy also

come to be proved and therefore the learned Government Advocate would end-up his arguments praying to confirm the conviction and sentence

of the lower Court in its judgment.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both what

comes to be known is that these appellants in all the criminal appeals who were the accused Nos. 1 to 13 before the trial Court were alleged to be

the members of the banned organisation ''Al-umma'' between 27-3-1997 and 14-2-1998 at door No. 34, Maroof Sahib Street, Anna Salai,

Chennai, they entered into a criminal conspiracy to plant powerful explosives in important cities in Tamil Nadu and to strike terror in the minds of

people of Tamil Nadu and to endanger lives and cause serious damage to property and in pursuance of the conspiracy, the accused, on 14-2-

1998 at the said address were in possession of the explosive substances and engaged themselves in illegal activities in promotion of their banned

organisation and hence the charges u/s 120-B, IPC, Sections 4 and 5 of the Explosive Substances Act and Section 17(1) of the Criminal Law

Amendment Act, 1908.

The prosecution, which is burdened to prove its case with such standard of proof beyond all reasonable doubts, has examined, among other

witnesses, P.W. 1 who was the Inspector of Law and Order in Anna Salai D2 Police Station would speak to the banning of the Organisation Al-

umma, the bomb blast carried out at various places in Coimbatore to strike terror in the minds of the general public about the organisation and to

create a fear psychoses among the general public besides targeting Mr. L. K. Advani, who was to visit Coimbatore at the time. This witness would

also speak to the '' activities of the first appellant in organising the gang of the Al-umma activist and preparing with lethal weapons, country made

bombs and petrol bombs and some of such persons collected from among the members of the banned organisation are the other accused and

according to this witness they have all been engaged in the preparation of such explosive substance keeping the tools and appliances which are

shown as the material objects in the case and which have been detailed under Ex.P2 seizure mahazar only attested by witnesses. This witness is

vital in the sense that he is one who with his party on reliable information raiding the premises bearing door No. 34, Maroof Sahib Street, Anna

Salai, Chennai on 14-2-1998 wherein all these appellants/accused joining hands with each other have not only conspire in perpetration of their

illegal designs but also indulging in the preparation of the explosive substances thereby committing an offence punishable u/s 120-B of the I.P.C.

and Sections 4 and 5 of the Explosive Substances Act, 1908 and u/s 17(1) of the Criminal Law Amendment Act, 1908 and hence this witness

having caused arrest of the appellants/ accused and seized the lethal weapons and explosive substances from the said premises would bring them

all to the police station and registered the case in D.2 Anna Salai P.S. Crime No. 294/1998 and would send the F.I.R. and the material objects to

the Court on 15-2-1998, further remanding the appellants/accused to judicial custody. P.W.2 who was the Revenue Inspector, Mylapore, who

had accompanied P.W. 1 and was with him during raid, arrest and seizure and would adduce evidence adhering the evidence of P.W.1 and it is

P.W.3, who would introduce two persons namely Sikander and Apsar to his landlord Humayun Bai through whom the appellants/accused have

taken on lease the said premises and the evidence of all P.Ws. 4 to 7 would consolidate the evidence of P.W.3 serving as corroborative evidence

regarding engaging the premises for rent under a different pretext through this middle man to make use of the same for their illegal activities. It is

P.W.9, who is the Scientific Officer of the Chemical Research Centre and would testify the Material Objects sent to her and certify that she had

received 7 material objects after defusing the live bombs and in item 4 of those, she would detect sulphur, Aluminium, Ammonium, Nitrate and

Nitroglycerine and Nitrocellulose and in item No. 5, Nitroglycerine and Nitrocellulose and item Nos. 6 and 7, contain petrol. This witness would

issue her report in Ex.P9 to the said effect. All other witnesses including the investigating officer would do all the legal formalities as it had been

extracted here before and there is nothing special to be mentioned.

During arguments, the learned counsel appearing on behalf of the appellants in C.A. No. 420 of 2001 would highly emphasise that it was on

14-2-1998 the organisation Al-umma was banned by the Government Order and on the very same day the arrest of these appellants have been

caused and therefore, it is the burden of the prosecution to prove that the appellants who were admittedly the members of the Al-umma

organisation prior to its banning continued to be the members even after its banning. Whereas no evidence comes forth regarding this evidence

aspect with Section 120-B, I.P.C. so as to allege that they enter into a conspiracy to commit the criminal acts making use of the explosive

substances.

At this juncture the vital point is that it is a open case of the defence and there is no denying of the fact that all these accused were members of

the organisation Al-umma prior to its banning. While such is the admitted fact of the appellants/accused the onus to prove that they did not continue

to be the members of the same organisation only lies on their shoulders and this onus, since being fixed on the accused, cannot be shifted to the

prosecution as it has been expected by the learned counsel for the appellants. In their discharge of this onus which is heavily on them it should be

mentioned that nothing comes-forth from their side in proof of their discontinuance from their membership and activities of the said organisation

even after its banning by the Government.

Secondly for charge u/s 17(1) of the Criminal Law Amendment Act the learned counsel would not only exhort that under this Section no

conviction could sustain since the said Act itself has been declared unconstitutional by the Hon''ble Supreme Court in the decided case in State of

Madras Vs. V.G. Row, . But, on perusal of the relevant passage of this judgment it is glaringly seen that only u/s 15(2)(b) of the Criminal Law

Amendment Act, 1908 as amended by Criminal Law Amendment (Madras) Act, 1950, has been declared unconstitutional and void since it falls

outside the scope of authorised restrictions under Clause (4) of Article 19 of the Constitution. Absolutely there is no mention in the said judgment

about Section 17(1) of the Criminal Law Amendment Act under which the appellants/accused have been charged. Therefore, under this score also

the appellants have failed to fish out anything in their favour.

Regarding the possession of the explosive substances reciting from the evidence of P.W. 1 the learned counsel would point out that the said

officer did not know anything about the power to manoeuvring process or the practical usage of the same or even the conditions of those explosive

substances and that the said officer is ignorant of anything regarding the explosives and therefore the learned counsel would say that he is not an

expert nor could he say accurately as to what is detonator or the explosive substances or its power or usage and therefore his evidence is not

sufficient to decide the case of such nature. The learned counsel would also point out that in spite of these articles have been seized on 14-2-1998

itself as per the evidence of P.W. 10 only on 23-2-1998 they have been sent for chemical analysis and the delay of 9 days in the custody of the

police, no proper explanation comes-forth from the prosecution. Though as per rules at the earlier possible opportunity that should be sent to the

Court the same has been done on 15-2-1998 itself and they have been entrusted for the safe custody with the police themselves and for the

purpose of chemical analysis after 9 days they have to send it back to the Court with the requisition and therefore the circumstances under which

they have been re-entrusted with the police kept in the custody and again sent to the Court cannot be taken as a delay and hence this cannot also

be taken to weaken the case of the prosecution particularly in view of the fact that the articles along with Ex.P2 seizure mahazar have been sent to

the Court on 15-2-1998 itself.

The other counsel appearing on behalf of the appellants/accused in C.A. Nos. 230 and 232 of 2001 would question the credibility of the

prosecution case regarding Section 120-B of the I.P.C. that the apprehension of conspiracy that P.W. 1 received was not but reliable information;

that in Ex.P2 there is no crime number but in Ex.P1 there is a crime number. Whether it is regarding the non mention of the conspiracy on reliable

information or the non mention of the crime number in Ex.P2 which is a subsequent document to Ex.P1, they are minor omissions and since they

are not affecting the vital aspects of the case, these minor irregularities cannot be said to have affect the case of the prosecution. Likewise the other

charge that no observation mahazar or rough sketch has been prepared at the scene of occurrence could also be attributed only for omission which

cannot be attributed to have caused any serious damage to the case of the prosecution particularly in view of Ex.P2 search list prepared on the

spot gives to that details of the articles seized, place where it was seized, which bear signatures of not only P.W. 1 but also the independent

witnesses and the signature of the first accused himself and therefore Ex.P2 document is sufficient evidence for the raid conducted, arrest of

accused Nos. 1 and 13 named and seizure of M.Os. on the spot which is sufficient evidence for reliance to be placed regarding the genuineness of

what P.W. 1 and his party did on the date, time place and in the manner alleged.

So far as the other judgment, cited regarding the search reported in The State of Rajasthan Vs. Rehman, the Apex Court in dealing with the

provisions of the Central Excises and Salt Act and the Rules framed thereunder has observed that provisions of Section 165 of the Code must be

followed it is not only regarding the reasons as contemplated under this Section but also P.W. 1 has sent advance intimation to the Court regarding

the search which had to be undertaken without any loss of time and therefore it cannot also be said that P.W. 1 has flouted the provisions of

Section 165 of Cr.P.C.

A perusal of the judgment of the lower Court would reveal that the trial Court has not only traced the facts and circumstances as pleaded by

the prosecution without missing even the minute points but also would trace the evidence of each and every witness and in full consideration of the

position of facts and law concerned with the whole of the case and in appreciation of the evidence to the context of the case in the manner required

by law would ultimately arrive at the conclusion to convict all the accused for the offences charged and sentenced them to various terms of

imprisonment and find in the manner extracted supra not only in appreciation of the evidence in its individual merits but on overall consideration of

the entire evidence and circumstances of the case and the evidence placed on record would suggest that the trial Court has arrived at the right

conclusion in the circumstances of the case since there is no serious irregularity or illegality or laches or lacunae so as to disturb the conviction and

sentence arrived at by the trial Court and therefore, this Court does not find any valid reason to cause its interference into the well considered and

merited judgment rendered by the trial Court in the above case.

In result,

(i) all the above Criminal Appeals are without merit and they are dismissed as such;

(ii) the judgment dated 8-3-2001 made in S.C. No. 1 of 1999 by the Court of Sessions Judge, Exclusive Trial of Bomb Blast Cases, Chennai at

Poonamallee thereby convicting the appellants/accused u/s 120-B of the IPC and Sections 4 and 5 of the Explosive Substances Act, 1908 and

sentencing them respectively to undergo R.I. for 4 years, R.I. for 4 years and to pay a fine of Rs. 500/-, in default to undergo further term of one

month R.I., R.I. for 4 years and to pay a fine of Rs. 500/-, in default to undergo further term of one month R.I. and R.I. for 6 months are hereby

confirmed.