State vs Irshad Ahmed Malik on 8 November, 2010

Delhi District Court

State vs Irshad Ahmed Malik on 8 November, 2010
Author: Sh. J.R. Aryan
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IN THE COURT OF SH. J. R. ARYAN,

ADDITIONAL SESSIONS JUDGE; NEW DELHI

Date of Institution : 08.07.2004

Date of judgment reserved on : 30.10.2010
Date of decision : 08.11.2010

Sessions Case No. 04/2009

S t a t e Vs I r s h a d Ahmed Ma l i k
FIR No. 47/04
U/s 121/121−A/122/123/120−B IPC & 25 Arms Ac t
P.S : S p e c i a l Cell.
Irshad Ahmed Ma l i k @ Tahir Nazir Mi r @
Bashir Ahmed Wani @ Rizwan @ Abu Talah
Rizwan @ Abu Abdullah Sani S/o Mohd Amin
Ma l i k
R/o Village Borgam B h a r a t h , PS & Dist. Doda,
J & K.
JUDGMENT: −

Accused Irshad Ahmed Ma l i k was put on trial on a charge for

o ff e n c e s under P r e ve n t io n of Te r r o r ism Act, for o ff e n c e s under Arms Ac t

and finally for o ff e n c e s under t h e Indian Penal Code. Charge for o ff e n c e s

under POTA was U/s 3 (3), 20 and 22 and charge was to t h e effect that on

or around 27/3/2004 accused conspi red with his a s s o c i a t e s namely Master

Ali, Altaf and Abu Mohmeed @ Mujjammil ( t h o s e a s s o c i a t e s c o ul d n o t be

arrested) to facilitate or a t t e m p t or prepare for commission of Terrorist A ct

in India and in Delhi in particular by acquiring Arms and Ammunition as

well money thr ough Hawala for t h e said purposes. Accused was member
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of a banned organisation Laksher−e−Tayyba and t h e r eb y committed

o ff e n c e s U/s 20 POTA. Accused had organised funds for carrying terrorist

activities and was found in possession 2.75 l a k h s and th e re b y committed

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 State vs Irshad Ahmed Malik on 8 November, 2010
o ff e n c e U/s 22 of t h e POTA.

Charge for o ff e n c e s under Arms Act was that on 27/3/2004 at around

7.15 p.m near bus s t o p Mathura Road, B h oga l, Delhi accused was found in

possession of a pistol with 8 live cartridges and further on 1.4.2004

accused was further found in possession of an assault rifle AK56 with 60

live cartridges which fire arm and ammunition accused g o t recovered to t h e

police from a s p o t in Humayun Tomb, Delhi and possession of these arms

and ammunition with accused was in contravention of provisions of the

Arms Ac t and t h e re b y he committed o f f e n c e punisha ble U/s 25 of t h e Arms

Act.

Charge for IPC o ff e n c e s is that accused cons pir ed with his aforesaid

co−accused persons to commit an o ff e n c e of waging war against

Government of India by acquiring Arms and Ammunition and t h e r eb y

committed o ff e n c e pun isha ble U/s 121−A IPC. Accused e nte red in to a

criminal c o n s pi r ac y with his a s s o c i a t e accused persons (who c ou l d n o t be

arrested) for collecting arms and ammunition or o t h e r wi s e to prepare to

wage a war against the Government of India and t h e r eb y committed

o ff e n c e U/s 122 IPC. F u r t h e r charge for o f f e n c e U/s 123 IPC was that

accused as a part of a c o ns pi r ac y with his associate concealed the

e xi s t e n c e of a design to wage war against Government of India and

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i n t en de d by such concealment to facilitate t h e waging of t h e wa r. Accused

claimed trial by pleading not guilty to charge which was framed on

20/8/2004.

Meanwhile in terms of S e c ti o n 60 (7) of t h e P r e ve n t io n of Te r r o ri sm

A ct with t h e r e vie w of charges for o ff e n c e s under POTA b e f o r e t h e Review

Committee on POTA p r e si de d by H o n ' b le Justice Ms.Usha Mehra,

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 State vs Irshad Ahmed Malik on 8 November, 2010
Chairperson constituted U/s 60 of t h e Ac t whereby it came to be h e l d and

observed by t h e Review Committee on POTA that invocation of POTA in

t h e facts of t h e case was n o t justified, charge for o ff e n c e s under POTA

was deemed to have been wi t h d r a wn . Order to that effect was passed by

Ld Special Judge POTA on 1 3 / 10 / 20 0 5. The said order came to be

cha lleng ed by t h e S t a t e in Criminal Appeal No.607 of 2007 and t h e appeal

was dismissed on 26/3/2009 by H o n ' b le High Court by t h e Division Bench

comp risin g Justice Mr. Bahadur Shah and Justice Mr. P.K B h a si n .

A c c o r d i n g l y t h e charge for o ff e n c e s under P r e v e n t io n of Te r r o ri sm Ac t is

deemed withdrawn a g a i n s t accused in this trial and t h e charge under Arms

A ct and o ff e n c e s under IPC is to be decided in this trial which concluded

with the examination of 15 prosecution witnesses and then with the

examination of accused U/s 313 Cr P.C and then accused having

examined a wi t ne ss an official from t h e court of Metropolitan Ma g i s t r a t e at

Tis Hazari, Delhi in d e f e nc e .

Facts

wherein accused came to be arrested in this case are that Special Cell Lodhi Colony, Delhi had a
secret information since first week of March and that information received through a Central
Intelligence Agency was that one Kashmiri youth namely Irshad Ahmad belonging to a militant
outfit Laksher−e−Tayyba had been visiting Delhi for collecting funds for his Terrorist Organisation
through Hawala and was trying to set up a base in Delhi. The information was developed and
resources were deployed. Finally on 27/3/2004 a specific information was received at 3 pm in the
office of Special Cell that Irshad Ahmed would be coming to stay in Rajdhani Guest House, Bhogal,
New Delhi and he was carrying weapons with him. Accused was then apprehended from that place
by a team of police at around 4 pm. A public witness Ajab Singh was joined by the police and that
public witness happened to be around that place to have arrived there for buying goods in the
market. Accused was apprehended on being identified by the informer. Search of accused revealed
recovery of a fire arm pistol .30 bore bearing mark star which was found tucked in his waist belt and
it was loaded with eight rounds in its magazine. Accused was found carrying a black colour bag on
his shoulder and that bag was found containing a cash amount Rs.2.75 lakhs, all currency in
denomination of 500 rupee notes. Loaded fire arm was converted in to pulanda and was seized
through seizure memo Ex.PW11/B. Sketch of this fire arm and its magazine were drawn as
Ex.PW11/A. Money recovered from the bag of accused was found kept in a polythene bag and it was

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 State vs Irshad Ahmed Malik on 8 November, 2010

also taken in to a pulanda and seal UB was affixed and its seizure memo Ex.PW11/C was prepared.
The black colour bag was seized in the same manner through seizure memo Ex.PW1/E. Rukka was
issued with the observations that accused had collected Hawala money and arms and ammunition
with an intent to carry out terrorist activities in order to disintegrate the sovereignty and integrity of
India and thus it was an attempt to wage war against India and accordingly prima facie offences U/s
121, 121−A, 122, 123 read with 120−B IPC and U/s 25 Arms Act were found committed by accused
and accordingly rukka for these offences was sent to police station Special Cell through HC Dinesh
and FIR Ex.PW6/A was recorded at 9.30 p.m on 27/3/2004. The case was got registered by SI
Umesh Barthwal who has examined himself as PW−11 in this trial.

Further investigation was taken up by SI Arvind Kumar PW−1 who on being called from his office
Special Cell Lodhi Colony reached the place of arrest of accused. Accused was brought to the office
of Special Cell where he was interrogated by PW−1 and accused gave a disclosure which was
recorded and has now been proved as Ex.PW1/F. This disclosure given by accused was found
attracting offences under Prevention of Terrorism Act and accordingly those offences were added in
the crime and further investigation was taken up by ACP Rajbir Singh (ACP Rajbir Singh could not
be examined in this case as he was reported to have been murdered and a criminal case had been
registered in Haryana).

ACP Rajbir claims to have recovered further fire arm and ammunition comprising AK56 assault rifle
and two magazines containing 30 rounds each of that AK56 assault rifle and this recovery was
effected on 1.4.2004 from a spot in Humayun Tomb, Delhi at the instance of accused where that fire
arm and ammunition was found kept and concealed in a plastic bag and that plastic bag was found
kept covered with sand and stones and was taken out of that spot by removing stones and digging
earth and thus those fire arm and ammunition were in conscious possession of accused.

During investigation of the case accused was alleged to have expressed his desire and voluntariness
to get his confession recorded before the designated police authority and accordingly in terms of
Section 32 of the Prevention of Terrorism Act that accused Irshad Ahmed Malik was produced
before Deputy Commissioner of Police, Special Branch, New Delhi on 2/4/2004. Accused gave a
confession before DCP and it was recorded on 3−4−2004. Confirmation of that confession
proceedings were taken up before Ld ACMM, New Delhi on 5/4/2004 and by those proceedings
proved as Ex.PW2/B & C by Ld ACMM when examined as PW−2 the confession Ex.PW2/A was
stated to have been confirmed by accused and accordingly prosecution would have pressed that
confession to be taken in to consideration but then since charges under POTA were deemed to have
been withdrawn pursuant to the order passed by Review Committee on POTA, this confession U/s
32 of the POTA cannot and will not be taken in to consideration while determining and examining
charges under IPC and under Arms Act.

Prosecution examined in all 15 witnesses to prove its charge. A set of witnesses comprising PW−7
HC Dinesh Kumar, PW−11 S.I Umesh Barthwal, PW−12 S.I Anil Yadav, PW−15 Inspector Lalit
Mohan all posted with special cell Lodhi Colony, Delhi are the witnesses who on 27/3/2004
apprehended accused from near Rajdhani Guest House, Bhogal, New Delhi and recovery of .30 bore
pistol loaded with 8 live cartridges which was found tucked in right waist belt by the accused and

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 State vs Irshad Ahmed Malik on 8 November, 2010

recovery of Rs.2.75 lakhs was effected from accused. All these three witnesses have stated in their
deposition that on 27/3/2004 a specific information was received in their office that accused a
Kashmiree youth who belonged a banned terrorist outfit Lakshar−e−Tayyba (LeT) would be coming
to stay in Rajdhani Guest House. A raiding team was formed after discussing that information with
the senior officers. The team comprised PW−11 SI Umesh Barthwal, inspector Lalit Mohan,
Inspector Hirdey Bhushan, SI Sanjay Dutt, SI Anil Yadav, ASI Rishi Pal, HC Dinesh, HC Ajit, HC
Rakesh, HC Surender and a few constables. This team of police officials reached Bhogal, Jungpura,
Mathura Road and there they succeeded in joining one public person Ajab Singh in their team. Trap
was laid at around 4 pm. At around 7.15 pm accused Irshad got down from a bus at Mathura Road
and he was identified by the informer and he was apprehended by the raiding team officials. The
above described pistol with cartridges were recovered from his possession. He was carrying a bag on
his shoulder and that was found containing Rs.2.75 lakhs, amount in the denomination of 500 rupee
notes. Accused when interrogated disclosed that he had received that money on the same day for
activities of his tanzeem. Te recovered pistol cartridges and money were seized after taking them in
to a cloth pulanda and seal UB was affixed and seal was then handed over to public witness Ajab
Singh. All these police officials supported the prosecution case to this extent.

Accused Irshad Ahmad Malik after being arrested in this incident of 27/3/2004 was brought to the
Special Cell Lodhi Colony and there on being interrogated accused gave a disclosure which was
recorded as Ex.PW1/F. Admittedly no discovery of any fact or incriminating article was effected
pursuant to this disclosure. According to this disclosure accused had concealed and confined
weapons AK47 rifle, two hand grenades, one wireless set and four magazines of the rifle in Tavi river
bed in Jammu and he could get those weapons recovered. Those weapons were to be delivered to a
Pakistani terrorist. Admittedly accused was taken to Jammu Tavi River but no recovery or discovery
could be effected. Accused was alleged to have misled the police by that disclosure and on
01/4/2004 accused gave an another disclosure. This disclosure Ex.PW1/G was given by accused
before ACP Special Cell Rajbir Singh and it was recorded in writing. According to this disclosure he
had brought AK rifle with two magazines in Delhi somewhere in in the month of January which
were to be delivered to a Pakistani Terrorist in Humayun Tomb, Delhi area but then the Pakistani
Terrorist did not arrive to take the delivery and accordingly accused concealed those weapons
behind Humayun Tomb in the ground covered by some stones and had gone back to Jammu he
could get those weapons recovered.

Pursuant to this disclosure accused got recovered rifle AK 56, two magazines containing cartridges
for that AK56 which were found kept in a cloth bag and this recovery was effected through seizure
memo Ex.PW1/H, recovery effected by ACP Rajbir Singh in the presence of Inspector Lalit Mohan,
SI Arvind and public witness Uday Bhan Tiwari. Out of this set of witnesses prosecution now
examined public witness Uday Bhan Tiwari as PW−3, inspector Lalit Mohan as PW−15 and SI
Arvind as PW−11. ACP Rajbir Singh could not be examined as he was no more alive, found killed as
a case of murder. These witnesses supporting the prosecution case have deposed that accused Irshad
Ahmad Malik got recovered one AK56 rifle and two magazines each loaded with 30 live cartridges of
that rifle from Humayun Tomb area pursuant to his disclosure. Seizure of these recovered arm and
ammunition was effected through memo Ex.PW1/H. Pistol loaded with cartridges and this rifle and
cartridges during investigation were got examined from FSL Delhi and report Ex.PW5/A has been

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 State vs Irshad Ahmed Malik on 8 November, 2010

proved whereby pistol .30'' bore and assault rifle 7.62 mm bore were found to be fire arm in working
order. Cartridges of these respective weapons were found to be ammunition as defined in Arms Act
and were life once.

PW−4 is the Mohrar Malkhana with whom the recovered and seized properties were deposited.
PW−6 has proved the FIR registered in this case. PW−8 is an official witness, Chief Secretary
Government of NCT, Delhi. Witness deposed that from the material placed before him which
comprised intelligence report received by the Special Cell that accused was a member of
Lakshar−e−Tayyba (LeT) and the documents showing recoveries effected from him and a report that
an amount Rs.2.75 lakhs recovered from accused was Hawala money to be used for terrorist
activities, he was satisfied that amount was to be impounded in terms of Section 7 (6) POTA and
accordingly he passed order to that effect. Witness proved copy of that order is Ex.PW8/C and
photocopy of the proceedings as Ex.PW8/B.

PW−9 is a formal police official witness who had recorded certain daily diaries and proved copies
thereof. PW−10 is a witness from the office of chief prosecuting officer DODA, J & K and he proved
certain FIR's which had been registered against accused Irshad Ahmed Malik.

With examination of these witnesses, this incriminating evidence was put to accused for his
explanation. Accused denied his apprehension and arrest in the manner as deposed by the
witnesses. He came out with a plea which is quiet an exhaustive narration of the events as to how
from the year 1993 accused carrying a provision store business in Doda J & K came to be noticed by
the authorities when a blast had occurred nearby his shop in Doda somewhere in 1996−97. He
explained that he was booked in false cases and in one such criminal case while being transported to
Doda jail after attending a criminal case hearing in court that he escaped police custody as he was
suffering from a kidney problem and the police had not taken any steps to get him treated. He got
himself admitted in a Government hospital in Sirinagar and changed his identity and got himself
treated and cured and kept on run for four years. He further explained that somewhere in 2004 he
came in contact of a person and on his advise he started indulging in sale and purchase of stolen
vehicles so as to earn easy th th money. On 17 /18 March 2004 he came to Delhi and was carrying a
sum of Rs.2,80,000/−which amount he had arranged by selling a stolen Santro car in Sirinagar
which was sold for Rs.1,75,000/−. He stayed in a guest th st house in Paharganj area. On 20 or 21
March 2004 he along with two other Kashmirees was picked up by the police from Paharganj area.
He was brought to guest house where he was staying and amount of Rs.2,80,000/−was seized by
the police from that room. Other two Kashmirees namely Mohd Akbar Bhat and Mustaq Ahmed
were implicated in a fake currency note and he was brought to Special Cell, Lodhi Colony and there
he narrated all that sequence of his activities he had been indulging in to the police and he was
shown falsely implicated as a terrorist. Accused then examined a witness in defence and this witness
is an official from Tis Hazari Court who brought the criminal file record of a case No.47/2004 police
station Special Cell decided on 18/8/2005 whereby accused had been convicted in that case FIR
248/2003 police station Sadar Bazar, Delhi.

I have heard both sides. Counsel Sh. N.D Pancholy argued that accused was apprehended by the
police in a wrong and false impression that he belonged to a terrorist group. All proceedings by the

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 State vs Irshad Ahmed Malik on 8 November, 2010

police were taken up with a point of view that accused was a terrorist. Despite a serious charge of
offence under POTA invoked against accused, no steps were taken to make their evidence reliable by
joining some respectable independent public witness. Counsel argued that recoveries pursuant to
disclosure given by accused deposed by police official witnesses could not be believed. Counsel
submitted that recovery of AK56 rifle and cartridges from Humayun Tomb spot which was an open
public place, it could not be attributed to the accused when the place of recovery was accessible to
anybody and in this regard counsel relied upon Supreme Court judgment reported as AIR 1954 SC
39. On the same proposition ld counsel relied upon Bombay High Court judgment reported as 1995
Crl. L.J 792.

Ld counsel argued that testimony of police officials should not be found believable and acceptable as
they had proceeded with a notion that they captured a terrorist, no evidence has been collected that
accused belonged to a terrorist organisation. The unfairness on the part of the police could be found
reflected from the circumstance that immediately after the arrest of accused and merely by
recording his confession given before the police which was recorded as Ex.PW1/F which by itself
was inadmissible in evidence that provisions of POTA were added in the offence against accused
Counsel argued that public witness has not supported the prosecution case and thereby such
recoveries could not be believed. As regards offences U/s 121−A, 122 IPC, counsel argued there was
no evidence at all to suggest that accused by any of his activity had indulged in an offence of waging
a war against the Government of India and thereby prosecution charge must be held not duly proved
against accused.

Ld Addl. PP for State argued that no reason at all has been assigned to any of the police official
witnesses as to why they would involve accused in a false case. The raiding team had in fact joined
public witness Ajab Singh but unfortunately by the time the case came up for trial, public witness
was found no more alive. It is argued that explanation of accused is equally unsubstantiated by any
evidence or material. A huge amount of Rs.2.75 lakhs was recovered from the possession of accused.
His confession got recorded before DCP in the rank of Superintendent of Police was a voluntary
confession by accused and that had been confirmed by accused before Ld. ACMM, New Delhi as has
been recorded by Ld ACMM in his proceedings Ex.PW2/C. It is submitted that this voluntary
confession by accused revealed that he was involved in terrorist activities and was in association of
Pakistani terrorist. There was no reason to not to believe the prosecution witnesses and prosecution
charges under Arms Act and offences under Indian Penal Code could be said to have been duly
proved.

I have considered these submissions and arguments.

The question for consideration arise whether prosecution charge can be found proved and
established from the evidence examined by the prosecution.

It is settled law that police official witnesses cannot be said and held to be unbelievable merely
because no public witness has been examined to support and corroborate them. It is not a
requirement of law that a police official witness is to be corroborated by an independent public
witness before his testimony is believed. But then it has been held to be a rule of prudence that

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 State vs Irshad Ahmed Malik on 8 November, 2010

police official when proceeds to apprehend a person on an information that he was guilty of a
serious crime then efforts be made that some independent public person is joined to provide and
support to the prosecution theory and that makes the prosecution case deposed by police official
witnesses credible. In absence of any public witness joined by the police, though testimony of
witnesses may not be rejected but then court must put itself to guard and take a closer analysis of
the evidence to find out if such an evidence inspire credibility and confidence.

In the present case police of Special Cell had an information since March 2004 and information
received from Central Intelligence Agency that accused Irshad Ahmed Malik a Kashmiree Youth
belonging to banned terrorist organization L−e−T had been visiting Delhi to set up base and
collecting money by hawala operation to the use in terrorist activities, accused was finally
apprehended on 27/3/2004 on a specific information that accused would be arriving Rajdhani
Guest House, Bhogal, Delhi. The sequence of the events revealed that there was sufficient time and
opportunity for the police to call some independent public witness to join that team before accused
was captured. A public witness Ajab Singh was joined but then he is a passersby available in the
market. The particulars of this witness as recorded in the seizure memos as well mentioned in the
charge sheet are that he is a resident of K.M.Pur, Delhi without there being any further particulars of
his address. What kind of sanctity can be assigned to such a witness when rule of prudence requires
a public witness to be joined should be respectable of the locality or a public witness whose
credibility could be found to be above board. Joining a person as a public witness only that person
happens to pass through may not satisfy the requirement of some ''independent person'' joined by
the police to support its case. In the present case Ajab Singh could not be examined in this trial as he
was reported to be dead.

As per information with the police that accused would be arriving to come and stay in Rajdhani
Guest House, police waited for the arrival of accused for more than three hours in that raid, no
police officer bothered to contact Rajdhani Guest House Manager or some senior officer if accused
had checked in to the hotel or had booked any accommodation and even if no such circumstance
existed by that time, atleast inquire if any such information was available with them, that accused
would be arriving to stay in that hotel. Some independent witness could have been joined from that
place. Why not to remark that it was omitted by the police deliberately. Accordingly testimony of the
police official is to be viewed and analysed in this background of the prosecution story.

PW−7 HC Dinesh Kumar is part of the raiding team when accused was apprehended from Rajdhani
Guest House site, Bhogal, Delhi. witness is absolutely silent if any public witness was joined by the
raiding team or that public witness was present during the proceedings taken up by the police.
Witness deposed that as per secret information received in their office Special Cell Lodhi Colony
that a raiding team was formed and that he was part of that team. The team reached the spot i.e near
Rajdhani Guest House, Bhogal. At around 7.15 pm informer identified the accused and accused was
captured. No question was put by the prosecution to the witness as to why he did not speak presence
of public person as a witness joined by the police team which fact has been deposed by other
witnesses. It casts a serious doubt in the prosecution story.

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 State vs Irshad Ahmed Malik on 8 November, 2010

According to police official witnesses seal used by PW−11 for sealing parcels in this case was handed
over to public witness Ajab Singh. None of the witness including PW−1 deposed as to when seal was
received back from that public witness. It is further the case of the prosecution that CFSL form was
filled in and specimen seal impression was taken on it. Neither PW−4 the mohrar malkhana with
him case property had been deposited has spoken about any such CFSL form deposited with the
case property or that CFSL form bearing specimen CFSL seal had been sent along with the case
property pulandas to FSL. The FSL report Ex.PW5/A is also silent if any CFSL form had been
received along with pulandas. It creates reasonable doubt in the authenticity of pulandas sent to FSL
untampered. There is a delay of one month in getting pulands taken to FSL and there is no
explanation for this delay.

Admittedly no reason or motive has been assigned to police official witnesses as to why they would
implicate accused falsely but that cannot be a criteria to test the credibility of witness certainly the
police could be said to be targeted to represent that they had captured a terrorist and prevented that
terrorist from carrying a serious crime of terrorism. As has been deposed by witnesses accused was
found carrying an amount of Rs.2,75,000/−in a bag which he was carrying on his shoulder.
Interrogation of accused revealed that money had been received by him as a hawala transaction
from Chandni Chowk area as has been deposed by PW−15. Admittedly no further investigation in to
such an aspect was carried out. It was a huge amount. The police should not have avoided and
escaped only on a statement that accused did not disclose any further particulars of the person who
handed over that amount to him in Chandni Chowk. Such a huge amount could not have been
delivered to accused when a specific person with specific particulars known to the accused. Why not
then to accept the explanation given by accused that he had brought this money to buy stolen vehicle
in Delhi. Particularly when there is no public witness to support the prosecution case that money
was recovered from accused while he was carrying a fire arm also with him. In the given facts and
circumstances the police official witnesses cannot be said to be believable so as to find the fact of
recovery of pistol loaded with live cartridges proved beyond doubt. This part of the prosecution story
becomes doubtful and unacceptable.

Second part of the prosecution case consists recovery of AK56 assault rifle and two magazines
loaded with cartridges, recovery effected at the instance of accused pursuant to his disclosure as
deposed by the witnesses. This time prosecution claims that its case has been supported and
corroborated by an independent public witness examined as PW−3. When we take scrutiny of the
evidence it becomes entirely doubtful if this recovery could be attributed to the exclusive knowledge
of accused and those possession of that fire arm and cartridges was with the accused. Recovery is
sought to be proved in terms of Section 27 Evidence Act and accordingly that part of the
confession/disclosure given by accused before the police which distinctly led to the discovery of facts
by recovery of that fire arm and ammunition is sought to be believed and proved. Admittedly the
public person witness PW−3 is not a witness to this disclosure/confession recorded by police from
accused. Witness PW−3 is a taxi driver by profession and he deposed that on 1.4.2004 at around 9
pm that ACP Rajbir told him that he had apprehended an accused and that accused had concealed
some articles behind Humayun Tomb and that fact was to be verified. Witness further deposed that
accused led them and that police officer dug the place pointed out by the accused behind Humayun
Tomb. One gunny bag was found concealed and that bag was checked and it contained a gun and a

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 State vs Irshad Ahmed Malik on 8 November, 2010

cartridges. It is difficult to make out if accused got this recovery effected or that he simply was in the
custody of the police and brought to Humayun Tomb and police effected recovery. It is none of the
deposition of this witness that accused disclosed while in the custody of the police that he had
concealed arm and ammunition and he could get it recovered and then he took the police party to
that particular spot where from recovery was effected.

This recovery at the instance of accused is to be viewed and examined in the background of the facts
that on 27/3/2004 when accused was arrested he was alleged to have given a disclosure as
Ex.PW1/F and claimed to have concealed Arms and ammunition in a river bed Tavi Jammu. No
recovery was effected from there despite a visit to that place. How come the police officials then
state that accused corrected himself and came out with a renewed disclosure as Ex.PW1/G. PW−3
himself when examined in this trial expressed his inability to identify the weapons got recovered by
accused. In cross examination witness admitted that he did not remember if any recovery had been
effected in his presence and such a testimony renders this part of the prosecution story also
incredible. The court cannot ignore the defence contention that when pursuant to the first
confession/disclosure recorded from accused that police party was unable to trace any arm or
ammunition from river bed of Tavi Jammu then in the absence of any such further serious nature of
the fire arm to be shown possessed by accused, it was being found difficult to proceed with the
charges under POTA and thereby police thought to create and plant such weapon like AK56 assault
rifle and cartridges. Defence counsel pointed out that seizure memo Ex.PW1/H mentions that
weapon AK56 rifle and two loaded magazines when taken out from the place it were found wrapped
in a soiled piece of cloth. On the contrary all witnesses deposed during trial that recovery had been
effected from a plastic gunny kind of bag. Though seizure memo does mention this plastic bag also
but then witnesses were silent if weapons were wrapped in a cloth which was there in the bag or that
if any such cloth had been seized. No such cloth has been produced in court. PW−3 public witness
has deposed that he did not recall if any seal was affixed on pulanda for its sealing. He does not
speak if seal had been handed over to him by the police whereas according to prosecution case seal
had been given to this witness. It all creates doubt in the prosecution story. This part of the
prosecution case also cannot be believed and held proved beyond doubt.

Finally comes the charge U/s 121−A, 122 & 123 IPC. Can accused be said to have indulged an act
which amounts to waging a war against Government of India. Intention and purpose of the war like
operations directed against Governmental machinery is an important criterion. If the object and
purpose is to strike at the sovereign authority of the Ruler or the Government, to achieve a public
and general purpose in contra distinction to a private and a particular purpose, that is an important
indication of waging war. The purpose must be intended to be achieved by use of force and arms and
by defiance of Government troops or armed personnel deployed to maintain public tranquility.
These ingredients of offence U/s 121 IPC have been discussed by the Supreme Court in a case St Vs
Navjot Sandhu AIR 2005 S.C 3820. Applying this criteria and ingredient of the offence in the
present case, by no stretch of imagination the charge of sedition can be said to have been proved
against accused. Charges under Terrorism Act have been found even prima facie not made out
against accused as had been held by the Hon'ble Review Committee on POTA. Recovery of arms and
ammunition has not been found proved against accused. Charges under IPC accordingly must be
held to have not been proved against him. Accused is entitled to be acquitted on all the charges in

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 State vs Irshad Ahmed Malik on 8 November, 2010

this case. I therefore acquit accused of all the charges.

Announced in t h e Open (J. R. ARYAN)

court on 0 8 / 11/ 2 01 0 . ADDITIONAL SESSIONS JUDGE
NEW DELHI.

S t a t e Vs I r s h a d Ahmed Ma l i k
FIR No. 47/04
U/s 121/121−A/122/123/120−B IPC & 25 Arms Ac t
P.S : S p e c i a l Cell.

08/11/2010

Present: Addl. PP for State.

Sh. N.D.Pancholy, Counsel for t h e accused.

Counsel states at bar that accused is in judicial custody in a Preventive Detention under Public
Safety Act in the State of J & K. Exemption granted from personal appearance of accused.

Vide separate judgment accused is acquitted of the charge. File be consigned to record room.

(J. R. ARYAN) ADDITIONAL SESSIONS JUDGE NEW DELHI.

08/11/2010.

Indian Kanoon - http://indiankanoon.org/doc/179586267/ 11