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2009 DIGILAW 2854 (ALL)

Javed @ Guddu v. State Of U. P.

2009-08-17

AMAR SARAN, DASU RAM AZAD

body2009
JUDGMENT: (Amar Saran, J.) Heard Shri W.H. Khan, learned Senior Counsel for the appellant and learned Additional Government Advocate. We have also perused the appeal along with affidavit and annexures filed by the appellant and the counter affidavit filed by the State. Learned counsel for the appellant has chosen not to file any rejoinder affidavit to the counter affidavit filed by the State. This criminal appeal under section 34(4) of the Prevention of Terrorism Act, 2002 (hereinafter referred to as the POTA) arises out of the order dated 14.2.2008 passed by the Special Judge (POTA)/Sessions Judge, Moradabad rejecting the third bail application of the appellant. 2. The contentions of the learned counsel for the appellant who presses for bail for the appellant are: (i) that the appellant has been in jail since 13.8.2002, i.e. for a period of almost 7 years and the minimum sentence under section 3 (3) of 'POTA' for a person, who conspires or attempts to commit, or abets an act of terrorism etc., is five years and it is argued that the appellant has exceeded that period in jail, (ii) that in the 'POTA' trial, which the appellant is facing, only one, out of 24 prosecution witnesses, has been examined so far and the appellant ought to be released on bail on account of delay in conduct of his trial, (iii) that the order of the review committee dated 22.9.2004 was in favour of the appellant as the review committee had opined that the case against the appellant was extremely weak and it had recommended to the State to consider withdrawing the prosecution of the appellant under POTA in exercise of powers under section 321 Cr.P.C. and (iv) that POTA having been repealed by the Prevention of Terrorism (Repeal) Act, 2004 (hereinafter referred to as the "Repealing Act" ), under section 2(3) of 'Repealing Act', it was mandatory for the review committee constituted by the Central Government under section 60(1) of the 'POTA' to review all cases of 'POTA' within one year of the enforcement of the 'Repealing Act', which came into force from 21.9.2004, and that this has not been done in the present case. For buttressing this argument reliance was placed on paragraph 41 in Mahmadhusen Abdulrahim Kalota Shaikh(2) v. Union of India and others, (2009) 2 SCC 1 . 3. For buttressing this argument reliance was placed on paragraph 41 in Mahmadhusen Abdulrahim Kalota Shaikh(2) v. Union of India and others, (2009) 2 SCC 1 . 3. In reply, the learned Additional Government Advocate submits that even though the minimum sentence under section 3(3) of the 'POTA' may be five years, but the maximum sentence under the said provision extends to life with an additional liability of fine. He also submits that the petitioner's case has been reviewed by the review committee of the State of U.P. on 22.9.04 and the said review committee had declined to pass any order under section 60(7) of the 'POTA' holding that no prima facie case for proceeding against the appellant existed and had left it open to the trial court to believe or disbelieve the recovery. Merely because the review committee had opined in its order dated 22.9.2004 that there was no public witness of the recovery and the papers were weak, the said opinion was not binding on the State Government. Moreover, merely because the review committee had given its opinion, and not a direction, leaving it open for the State Government to consider moving the trial court for withdrawal of the prosecution under section 321 Cr.P.C., it could not be said that the review committee had recommended the State to withdraw the prosecution of the appellant under 'POTA' in exercise of powers under section 321 Cr.P.C. 4. We have considered the rival submissions of the learned counsel for the appellants and learned AGA. As the punishment under section 3(3) of the 'POTA' extends to life imprisonment and fine, merely because the accused had undergone seven years in jail, cannot give rise to an ipso facto entitlement for bail to the appellant on this ground. We have considered the rival submissions of the learned counsel for the appellants and learned AGA. As the punishment under section 3(3) of the 'POTA' extends to life imprisonment and fine, merely because the accused had undergone seven years in jail, cannot give rise to an ipso facto entitlement for bail to the appellant on this ground. It is noteworthy that the review committee headed by Justice Naseem Uddin had observed in the order dated 22.9.2004 that it could not be said that no prima facie case was disclosed against the accused so that a recommendation could be made for withdrawal of the case under section 60(7) of the 'POTA.' Yet as the committee had stated that there was no public witness of recovery and the papers appeared to be weak, it was open for the State to consider whether it would like to withdraw the prosecution of the appellant under section 321 Cr.P.C., but merely from this opinion which was of a neutral non-binding character on the State government, it cannot be urged that a case for bail was automatically made out. 5. Here, it may be noted that in the earlier order dismissing the appeal passed by this Court on 13.12.2006, which was filed against the rejection of the second bail application, this Court Court had specifically observed that the recoveries from the accused-appellant Javed alias Guddu and his accomplice suggested that that they were involved in anti-national activities with intent to threaten the unity, integrity, security or sovereignty of India, and spying for Pakistan. In this context it was pointed out that on 3.8.2002 the STF had apprehended the appellant and co-accused near Raza Degree College, Rampur and from their possession, inter alia, visa of Pakistan, passport dated 11.4.2001, a letter dated 31.12.2001 over which A&J were written and letter 'M' was scored out, Addressed to Shri Amir Bhai of Pakistan , marriage invitation card on the back of which 18-20 phone numbers were written, one lined paper over which details of the movement of the Army from Dehradun, Bareilly and Meerut were scribed and a small pocket diary containing telephone numbers, addresses and details about the Army Codewords etc., were recovered. 6. The third bail application was rejected by the Special Judge, POTA/Sessions Judge, Moradabad by order dated 14.2.2008, stating that no new ground has arisen for grant of bail. 6. The third bail application was rejected by the Special Judge, POTA/Sessions Judge, Moradabad by order dated 14.2.2008, stating that no new ground has arisen for grant of bail. We also think that there is no significant change in the circumstances. However, we do not know what is the latest position and the number of witnesses who have been examined, but we think that as the appellant had been in jail for a considerably long period of time, the Special Judge, trying the POTA case of the appellant should try and conclude the trial within six months of the filing of the certified copy of this order, as examining only one out of 24 witnesses seems to suggest a very tardy progress in the conduct of the trial. 7. It is not clear to us whether the review committee headed by Justice Naseem Uddin, who passed the order dated 22.9.2004 had been appointed by the Central Government under section 60(1) or it had been appointed by the State Government as its order of review dated 22.9.04 does appear to fall within the period of one year from the date of enforcement of 'POTA', i.e. 21.9.2004. We entertain this doubt because this ground that that there was any breach of section 2(3) of the Repealing Act, which requires the review committee constituted by the Central Government under section 60(1) of POTA to consider within a year of the commencement of the Repealing Act whether an application has been made for reviewing the case under POTA, has not been taken in the appeal or the affidavit filed by the appellant and hence there is also no reply in the State's counter-affidavit on this point. 8. In case the Central Government has not reviewed the appellant's case as required under section 2(3) of the Repealing Act, and it is under an obligation to do so, it may consider reviewing the case at the earliest on receipt of the certified copy of this order. For the aforesaid reasons, we find no ground for granting bail to the appellant. The appeal accordingly fails and is dismissed.