Shah, J. - (1.) Accused have filed this appeal against the judgment and order dated 10/15th December, 1999 passed by the Designated Judge-I, New Delhi in Sessions Case No. 10/94 convicting accused Nos. 1 and 2 for the offence punishable under Section 5 of the Terrorist and Disruptive Activities (Prevention Act, 1987 (for short 'TADA Act') and under Section 5 of the Explosive Substances) Act, 1908, and sentencing to undergo rigorous imprisonment for eight years and a fine of Rs. 20,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year under Section 5 of TADA Act and to suffer rigorous imprisonment for five years under Section 5 of the Explosive Substances Act.
(2.) It is the prosecution case that on 12th October, 1993 a secret information was received by the ACP Shri D.S. Naurawat (PW-11), who was posted in the Operations Cell, that some members of the Muslim Mujahiddin, a terrorist outfit organisation of Jammu and Kashmir, were hiding somewhere in South Delhi to carry out terrorist activities in Delhi. To carry out and develop the information, a special team comprising of SI Kundan Singh. SI Joginder Singh, SI Radhey Shyam and ASI Swaminathan under the supervision of ACP Shri D.S. Naurawat, was constituted. The police team came to know that 2-3 Kashmiris were staying in House No. I-105, Lajpat Nagar on the second floor and their movements were found doubtful. After conveying that information to the superior officers at about 5.00 p.m. raiding party conducted raid at the said house. In the said premises, accused Ghulam Nabi War (A-1) and Meer Arshad Saleem (A-2) were found. It has been further pointed out that A-2 was the tenant in possession of the said premises. After carrying out a formal search of the room, from a closed loft of the room, one rexine bag was found which was brought down. The bag was found having a numbered lock and A-1 claimed that the said bag belonged to him and gave secret No. 365 for opening the lock. From the said bag, a polythene bag of green colour containing 800 gms. of RDX and another polythene bag containing detonators and a cash of Rs. 25,000/-, one telescope of Russian make and some clothes of the accused were also found. It is stated that on further checking of the bag, three fax receipts, two cash memos and three photostat copies written in Urdu were also recovered which according to the prosecution contained formula for making a bomb. Thereafter, DCP Shri B.S. Bhola was informed and he arrived at the spot and it is alleged that on further interrogation the accused to be the members of the Muslim Mujahiddin. After verification of the facts. DCP B.S. Bhola gave his approval for registration of the case under TADA Act and under the Explosive Substances Act.
(3.) After completing the investigation, the accused were charged for the offences punishable under Section 120-B of I.P.C., Sections 3 and 4 of TADA Act read with Section 120-B of I.P.C., Section 4 of the Explosive Substances Act, Section 5 of TADA Act and Section 5 of Explosive Substances Act. After recording the necessary evidence, the learned Designated Judge arrived at the conclusion that from the persual of the prosecution evidence it is apparent that none of the ingredients of Section 3 of TADA Act has been alleged or established. The evidence led by the prosecution is mainly regarding the recovery of explosive substances. The court further observed that there was no further reference of commission of any terrorist act committed by the accused persons by using the explosive substances to over-awe the Government lawfully established by law to create terror among the public of different sections of the society and, therefore, there was no evidence on record to bring home the guilt to the accused persons under Section 3 of the TADA Act read with Section 120-B of I.P.C. Similarly, the court held that prosecution evidence is totally lacking to bring home the charge under Section 4 of TADA Act read with Section 120-B of I.P.C. The court pertinently observed that prosectuion has, in fact, failed to lead any evidence, good or bad or indifferent, to show that accused persons were members of the Muslim Mujahiddin, a terrorist organisation. However, considering the evidence on record with regard to recovery of explosive substances, the court convicted the accused as stated above.;