- (1.) This appeal has been directed under Section 34 (1) of the Prevention of Terrorism Act. 2002 (hereinafter called POTA) against the order dated 28-9-2002 passed by the Sessions Judge/Special Judge, Muzaffarnagar rejecting the bail application of the appellant detained under Section 3 of POTA as well as Section 3 of the Official Secrets Act and Sections 121, 121-A and 123 I. P. C. relating to P. S. Kotwali City District Muzaffarnagar.
(2.) On the basis of a secret information that certain persons are engaged in terrorist activities and had their relations with the Laskar-E-Toiba and Field Intelligence Unit, Pakistan and they were supplying secret informations to the above organizations, the police of P. S. Kotwali city district Muzaffarnagar on the night of 13/14-7-2002 apprehended Gaffar, Gayur and Jhon Mohd from their houses and brought them to police station Kotwali. Smt. Shakeela was also brought at the police station from her house on 14-7-2002. However, nothing could be elicited from them and they were released. Subsequently, again information was received that the above persons are active members of terrorist organizations Laskar E-Toiba and Field Intelligence Unit, Pakistan. On the above information the Station Officer P. S. Kotwali along with police force reached emergency unit of district hospital and on the pointing out of informer apprehended Gaffar. Gayur, Jhon Mohd and Smt. Shakeela. Certain objectionable documents and magazines were recovered from their possession. The above persons also admitted that they were sending secret information on telephone and fax to Laskar-E-Toiba and Field Intelligence Unit of Pakistan. During investigation of the case appellant Abdul Haq was also arrested on 19-7-2002 and two books were recovered from his possession and he told that it was given to him by his son who was serving in the military. He also admitted that he was sending secret informations to the members of Laskar-E-Toiba.
(3.) During investigation of the case the appellant Abdul Haq moved an application for bail on the ground that no offence is made out against him. The learned Sessions Judge/Special Judge held that admittedly two secret papers were recovered from possession of the appellant. However, the contention of learned counsel for the appellant was that the papers were given to him by his son who is presently working in the Army. The papers recovered from his possession were sent to Military Authority for inspection and report, whether these papers were secret or not or whether these papers were anti national or not and whether the accused got the possession of these papers from valid source. That, unless the reply is in favour of the accused it cannot be said that the accused is not guilty of committing the above offence and therefore at that stage the provisions of Sec. 49 of the POTA is not applicable. With these findings he rejected the application vide order dated 29-9-2002.;