2010 (5) TMI 957 - HC - Indian Laws

Court modifies Arms Act conviction, dismisses State's appeal for sentence enhancement. Upholds sentences based on offense gravity.

Mohmed Tahir Mohmed Arif Bakaswala Versus State of Gujarat

The court allowed the appeals by the appellants to the extent of modifying the conviction under the Arms Act but dismissed the appeal by the State seeking ... - Issues Involved:1. Reopening of the case after the A-Summary report.2. Admissibility of electronic evidence.3. Validity of the sanction for adding POTA charges.4. Admissibility and voluntariness of confessional statements.5. Compliance with procedural safeguards under POTA.6. Conspiracy and involvement of accused.7. Non-recovery of the weapon used in the crime.8. Application and interpretation of Section 3 of POTA.9. Sentencing and enhancement of punishment.Detailed Analysis:1. Reopening of the Case:The appellants contended that reopening the case after an A-Summary report was invalid. The court examined Section 27 of the Evidence Act, which allows for the discovery of facts based on information received from an accused in custody. The court referenced the Apex Court's ruling in State (NCT of Delhi) Vs. Navjot Sandhu, emphasizing that discovery of facts unknown to the police justifies reopening the case. The court found that the pointing out panchnama led to further investigation and discovery of evidence, thus justifying the reopening of the case.2. Admissibility of Electronic Evidence:The appellants argued that the seizure and extraction of computer files were not properly conducted, and mandatory procedures under Section 65B of the Evidence Act were not followed. The court noted that the evidence was admitted with the consent of the defense, making it admissible. The court held that a document accepted in evidence with consent cannot later be contested on procedural grounds.3. Validity of Sanction for POTA:The appellants challenged the sanction for adding POTA charges, arguing it was merely an IPC offense. The court examined the deposition of the Home Department Secretary and found that the sanction was granted after thorough scrutiny and approval by the highest authority, including the Chief Minister. The court found no dissenting opinion in the process, validating the sanction.4. Admissibility and Voluntariness of Confessional Statements:The appellants argued that the confessional statements were not voluntary and were obtained under duress. The court referenced Section 32 of POTA, which requires confessions to be made voluntarily and in a free atmosphere. The court found that the confessions were recorded with due compliance to procedural safeguards and were corroborated by other evidence. The court rejected the contention that the confessions were invalid due to lack of written intimation or insufficient time given to the accused to think.5. Compliance with Procedural Safeguards under POTA:The court examined the compliance with Section 52 of POTA, which provides additional safeguards during interrogation. The court found no evidence of denial of these safeguards, such as the right to consult a legal practitioner or informing family members about the arrest. The court held that procedural safeguards were followed, and the confessional statements were valid.6. Conspiracy and Involvement of Accused:The appellants argued that there was insufficient evidence of conspiracy, particularly for A4. The court referenced the Apex Court's ruling in State (NCT of Delhi) Vs. Navjot Sandhu, which allows for proving conspiracy through circumstantial evidence. The court found sufficient evidence of a conspiracy to target the Hindu community, including the recovery of weapons, vehicles, and corroborative testimonies.7. Non-recovery of the Weapon:The appellants contended that the non-recovery of the weapon used in the crime weakened the prosecution's case. The court referenced the Apex Court's ruling in Munna Alias Surendra Kumar Vs. State of M.P., which held that non-recovery of the weapon is not fatal to the prosecution's case if other evidence proves the crime. The court found sufficient corroborative evidence, including the bullet recovered from the victim's body.8. Application and Interpretation of Section 3 of POTA:The court examined the application of Section 3 of POTA, which deals with terrorist acts intended to threaten the unity, integrity, security, or sovereignty of India. The court referenced the Apex Court's ruling in Hitendra Vishnu Thakur v. State of Maharashtra, emphasizing the need to prove the intention to create terror. The court found that the conspiracy to target the Hindu community and the subsequent shooting of a Hindu leader met the criteria under Section 3 of POTA.9. Sentencing and Enhancement of Punishment:The appellants argued that the sentences were too harsh, while the State sought enhancement of the sentences. The court considered the gravity of the offense, the intention to create terror, and the actual consequences. The court upheld the sentences imposed by the Special Judge (POTA) but modified the conviction under the Arms Act from Section 25(1)(c) to Section 25(1B)(a), reducing the imprisonment from 3 years to 1 year.Conclusion:The appeals by the appellants were allowed to the extent of modifying the conviction under the Arms Act. The appeal by the State for enhancement of the sentences was dismissed. The court confirmed the other parts of the judgment and order by the Special Judge (POTA).