(A) Evidence Act, 1872, Section 27 – Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19, 45(1)–Penal Code, 1860, Sections 120-B, 121 and 121(A) – Arms Act, 1959, Section 25(1)(d) – National Investigation Agency Act, 2008, Section 6(5) – Appeal against conviction – Appreciation of evidence –Disclosure statement – PW-14 claimed to have recorded Exhibit-43, the disclosure statement of ‘V’ at the instance of the NIA officials which allegedly led to the discovery of arms and ammunition from the house of one ‘L’ in which one ‘N’ was living as a tenant – It does not bear any time of recording – The document also does not indicate that ‘V’, the person who made the disclosure, was in custody in connection with any criminal case – Furthermore, the father’s name of the said accused in this document is mentioned as ‘N’ – Held that the said disclosure statement cannot even remotely be connected with the accused/appellant ‘V’ because there is a serious discrepancy regarding the parentage of the person, who made the disclosure and that of the accused/appellant – In addition thereto, when compared the signatures appended by the so called accused ‘V’ on Exhibit-43 and the signatures appended by the appellant ‘V’ in the statement under Section 313 Cr.PC and on a careful visual comparison thereof, the signatures as appearing on the document (Exhibit-43) are totally distinguishable from the signatures, which the accused/ appellant appended in his statement under Section 313 Cr.PC. – The variations in the 2(two) signatures are too stark and prominent so as to be ignored – PW-56, the Officer of NIA, who allegedly accompanied PW-14 in this procedure, did not append his signatures on the document – The scribe of this disclosure statement (Exhibit-43), namely, (PW-14), did not utter a single word about the seizure memo by virtue whereof, the weapons were recovered – Thus, there is no link between the disclosure and the discovery of arms and ammunitions – During the deposition ofPW-13 and PW-14, the prosecution made no effort whatsoever to get the appellant identified as being the ‘V’, who was allegedly responsible for making the disclosure statement leading to the incriminating recoveries. (Para 82 to 84)
(B) Evidence Act, 1872, Section 27 – Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19, 45(1) – Penal Code, 1860, Sections 120-B, 121 and 121(A) – Arms Act, 1959, Section 25(1)(d) – National Investigation Agency Act, 2008, Section 6(5) – Appeal against conviction – Appreciation of evidence – Disclosure statement – Seizure of arms and ammunitions – PW-56, who allegedly carried out the seizure of arms and ammunitions in furtherance of the disclosure statement (Exhibit-43) of proved the seizure memo (Exhibit-250) on which he appended his signatures – This document though was prepared on 30.07.2009 at 11:30 AM, it does not bear the details of the criminal case in connection whereof, it was being prepared – The document further reflects that the search and seizure were being made in pursuance of a warrant to search the suspected places issued by the Magistrate, 1st Class, Aizawl Court, dated 30.07.2009 – It does not refer to any disclosure statement made by the accused ‘V’ – The actual seizure was made by one Mr. ‘H’, Additional SP, CID, Mizoram, who was not examined during trial – Even the attesting witnesses associated with the recovery were not examined in evidence – The search warrant was also not brought on record – PW-56 further stated that interrogation done from ‘V’ on 31.07.2009 revealed that the recovered arms had no connection with the Mizoram Police Station Case No.238/2009 as the same were meant for DHD(J) group and thus, the Mizoram Police decided to file a closure report in their case – However, this so called interrogation note was also not brought on record – In cross-examination, the witness PW-56 agreed that in the passport application form, the father’s name of ‘V’ was mentioned as ‘T’ and in none of these documents, was the alias name of ‘V’ – Specific suggestion was given to this witness in cross-examination that the disclosure memo dated 30.07.2009 was not the disclosure memo of the accused ‘V’ and was signed by some other person – He admitted that the seizure list does not contain the signature of the accused ‘V’ – Held that after thorough reappraisal of evidence of this most important prosecution witness, not only did the Investigation Agency conceal material facts from the Court but it also indulged in creation of false documents/evidence – Not a single arrest memo of any of the accused arrested in connection with the Aizawl Police Station case or the NIA case was proved on record – Without any justification, the arms and ammunitions seized by virtue of the seizure list (Exhibit-250) dated 30.07.2009 were tried to be foisted upon the accused/ appellant ‘V’ even though, the document nowhere indicates that the arms and ammunitions were discovered or were being seized in furtherance of any disclosure made by the said accused – Admittedly, the seizure list (Exhibit-250) does not bear signatures of the accused ‘V’. (Para 95 to 99)
(C) Evidence Act, 1872, Section 9, 25, 26 – Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19, 45(1) – Penal Code, 1860, Sections 120-B, 121 and 121(A) – Arms Act, 1959, Section 25(1)(d) – National Investigation Agency Act, 2008, Section 6(5) – Test Identification – Photo identification – PW-52 was the Executive Magistrate, who participated in the identification proceedings held at the SOU Police Station, , wherein the accused ‘V’ allegedly identified the photographs of the accused Jewel ‘G’ and ‘N’ – Held that the said witness was associated in the proceedings presumably in order to surmount the bar created by Section 26 of the Evidence Act, which provides that confession made by any person whilst is in the custody of a Police Officer shall not be proved, unless it be made in the immediate presence of a Magistrate – The testimony of this witness PW-52has been criticised by learned defence counsel urging that the Magistrate, as referred to in Section 26 of the Evidence Act, must be a Judicial Magistrate and presence of an Executive Magistrate would not cure or validate the proceedings as being compliant of Section 26 of the Evidence Act – Reference in this regard has been made to the Full Bench judgment of this Court in the case of Kartik Chakraborty & Ors. -Vs-State of Assam, reported in 2017 (5) GLT 144 – Held that the exercise undertaken by the trial Court to treat the photo identification of one accused by another is absolutely illegal and alien to the principles of appreciation of evidence in a criminal case. (Para 91 to 93, 110 to 112)
(D) Evidence Act, 1872, Section 106 – Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19, 45(1) – Penal Code, 1860, Sections 120-B, 121 and 121(A) – Arms Act, 1959, Section 25(1)(d) – Non explanation of what accused did with US Dollars – Adverse inference – The finding recorded by the trial Court by relying upon Section 106 of the Act, 1872 holding that on account of failure of the accused ‘V’ to give plausible explanation about what he did with the US Dollars, an inference deserved to be drawn against him that he purchased the seized arms for the DHD(J) (Aizawl Police Station case) with the said US Dollars, held to be absolutely contumacious – Testimony of the approver ‘G’ (PW-29) already discarded, the only witness who deposed in this regard, by holding that his evidence is not reliable so as to affirm the prosecution allegation that ‘V’ was provided US Dollars to purchase arms and ammunition for the DHD(J) – Without prejudice to the above, even if for a moment it is believed that from his evidence, some kind of inference can be drawn that the accused ‘V’ accompanied ‘M’ to Kolkata on a couple of occasions and participated in the transactions of conversion of Indian currency to US Dollars, there was no justification for the trial Court to have come to a conclusion that non-furnishing of explanation by the accused ‘V’ as to how the US Dollars were used, would lead to an inevitable inference of the same having been used to procure the seized weapons – This finding, on the face of it, is sheerly conjectural and hypothetical – The trial Court, at Paragraph 208 of the impugned judgment, recorded an affirmative finding that the disclosure statement of ‘V’ was inadmissible but inspite thereof, it was observed that the arms and ammunitions were recovered and seized on being led and shown by the accused from the house at Saron Veng – This finding is patently perverse and unsubstantiated from a bare perusal of the seizure memo (Exhibit-250) – Held that the conclusion drawn by the trial Court based on a totally unwarranted assumption that failure of ‘V’ to give an explanation as to how the US Dollars were used leads to an inference that the same were used to procure arms and ammunitions, is perverse on the face of the record and cannot be sustained – Prosecution miserably failed to lead reliable, admissible, legal evidence so as to even create strong suspicion against the accused ‘V’ in its endeavour to establish that he was involved in the procurement of the recovered arms and ammunitions or that he conspired with the members of DHD(J) to procure weapons for the organisation with the knowledge that the said organisation was involved in terrorist activities – Further held that the prosecution has miserably failed to prove that the arms and ammunitions, etc. recovered from Aizawl were in any manner connected with the case at hand or that the same had any connection with the so called terrorist activities of DHD(J). (Para 114 to 118 and 129)
(E) Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19 – Penal Code, 1860, Section 120B – Burden of proof – Presumption – As regards charges under Sections 17 & 18 Trial Court took aid of presumptions and shifted the burden of proof on to the accused persons to hold them guilty of the charges – Held that the provisions of UA (P) Act do not provide the aid of presumption/reverse burden of proof to the prosecution except for the offences under Sections 38, 39 and 40 of the Act, which apply when the activities of a declared terrorist organisation are being probed – Thus, even if for the sake of arguments, the finding of the trial Court holding the accused persons connected with the affairs of the N.C. Hills Autonomous Council, namely, ‘R’, ‘K’, ‘M’, ‘D’, ‘J’ and ‘S’ responsible for siphoning off the funds of the N.C. Hills Council without specifically charging them for the offences of fraud, fabrication, misappropriation, cheating defined under Indian Penal Code and/or criminal misconduct, as defined under the Prevention of Corruption Act are held to be justified, that by itself would not relieve the prosecution of the burden to independently prove by cogent and plausible evidence that the funds so siphoned off were channelized to Kolkata for being converted to US Dollars with the ultimate objective being that the same would be used for purchase of arms and ammunitions so that the DHD(J) could be facilitated in carrying out its terrorist activities – The trial Court, convicted the accused persons for the offence punishable under Section 120B of the IPC contemplating that the offence under Section 18 of the UA (P) Act stands made out but immediately thereafter, in the same paragraph, the accused were acquitted from the said charge, i.e. Section 18 of the UA (P) Act – Held that it may be permissible to record a finding of guilt for the scheduled offence under a special Act [UA (P) Act in this case] and not award sentence to the accused on the ground that they were being sentenced for an analogous offence under the general law, i.e. Section 120(B) IPC but recording acquittal of the accused from the charge under Section 18 of the UA (P) Act, would completely vitiate the findings recorded by the trial Court qua the charge under Section 120B of the IPC as well. (Para 126, 127)
(F) Criminal Procedure Code, 1973, Section 161 and 162 – Evidence Act, 1872, Section 145 – Hostile witness – Exhibiting the previous statements of the witnesses – Held that a previous police statement of a witness recorded under Section 161 Cr.PC cannot be proved in evidence as per the embargo contained in Section 162 Cr.PC – However, such previous statement may be used to confront the witness or to corroborate his evidence as provided under Section 145 of the Evidence Act – Section 145 of the Evidence Act, which deals with cross-examination as to previous statements in writing can be split up in two parts – The first part talks of cross-examination of a witness as to previous statements made by him in writing or reduced into writing, and relevant to the matters in question, without such writing being shown to him, or being proved – The second part of Section 145 provides that if it is intended to contradict the witness by the writing, his attention must, “before the writing can be proved”, be called to those parts of it which are to be used for the purpose of contradicting him – The second part is applicable to the case at hand because the witnesses concerned, upon their attention being drawn to the relevant parts of the previous statements under Section 161 Cr.PC, denied the same – In such circumstance, the writings were required to be proved by marking Exhibit upon the original statement of the witness recorded under Section 161 Cr.PC/164 Cr.PC and marking quotations upon the confronted portions as A to B, B to C and C to D, so forth so on – The previous statement of a witness recorded under Section 161 Cr.PC falls within the definition of a document – If portion/portions of the said document are to be used for confronting or contradicting the witness under the later part of Section 145 of the Evidence Act, then the document, i.e. the previous statement would have to be tendered and proved in evidence by marking an exhibit thereupon during the deposition of the witness concerned as well as the scribe Investigating Officer so as to accept the admissible part thereof as legal evidence – However, neither the prosecution nor the trial Court took the trouble of exhibiting and marking quotations upon the relevant parts of the previous statements of the witnesses during their testimony and since the statement itself being a document, was not tendered in evidence and proved – Held that the entire procedure so undertaken by the trial Court is fraught with irregularity and illegality. (Para 132 and 133)
(G) Evidence Act, 1872, Section 65B, 78(2), 81 – TV new clips/ reports – Document – Secondary evidence – Hearsay evidence – Trial Court placed extensive reliance on the contents of certain news clips proved in the statements of (PW-27) and (PW-70) to draw certain conclusions against the accused persons – Held that law is well settled that TV channel news reports, which would be akin to newspaper reports, are not by themselves evidence of the contents thereof – These reports fall in the category of hearsay evidence and the contents thereof would have to be proved by the reporter, who heard the speech or perceived the event – Mere production of the news clippings by the editor or a publisher cannot amount to valid proof of the contents of the news reports – As a matter of fact, these clippings should not have been permitted to be exhibited in the evidence of these two witnesses, who admittedly did not perceive the subject event/events so telecast by the channel – Thus, the CDs of news clipping reports sought to be proved in the testimony of (PW-27) and (PW-70) were inadmissible as the same tantamount to hearsay evidence – That apart, the CDs were in form of secondary evidence and absence of certificate under Section 65B of the Evidence Act ruled out their production in evidence. (Para 148 and 150)
CRL. APPEAL NO.233/2017 (REDAUL HUSSAIN KHAN) AND KARUNA SAIKIA
(H) Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19 – Evidence Act, 1872, Section 27 – Disclosure statement –Case diary – Held that finding recorded of the impugned judgment shows the partisan bent of mind of the trial Court that by any means, the accused/ appellant ‘A’ had to be convicted – In order to justify its absolutely perverse and virtually predetermined conclusion, the trial Court peeped into the case diary and tried to mutate the date of the Disclosure Memo (Exhibit-117), from 13.07.2009 to 13.06.2009, by observing that there were lapses on the part of the Investigating Officer – No sooner, the question regarding the accused ‘A’ being in judicial custody on 13.07.2009 was put to the witness ‘S’, the prosecution should have been alerted and measures were required to be taken for explaining the glaring discrepancy by way of re-examination from the witness – Furthermore, the Presiding Officer of the trial Court was also expected to remain vigilant as per the mandate of Section 165 of the Evidence Act and rather than acting as a mute spectator should have put Court questions to the witness so as to remove the anomaly – Exhibit-117, the disclosure statement allegedly recorded by (PW-146) is nothing but a sheer piece of fabrication and the consequential opening of the email accounts in furtherance of this disclosure statement is also an exercise in futility – All these discrepancies and glaring contradictions are clearly indicative of the grossly tainted process of investigation and trial – The learned trial Court acted in a sheerly partisan manner and metamorphosed the date of the disclosure memo from 13.07.2009 to 13.06.2009 at the behest of the Public Prosecutor by fishing into the case diary in a grossly illegal manner. (Para 191)
(I) Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19 – Evidence Act, 1872, Section 27, 65B, 165 – Disclosure statement – Evidence of (PW-146) and the documents referred to are the only pieces of evidence which the prosecution could lay hands on in the endeavour to prove its case as against the accused/appellant ‘A’ -Trial Court, without giving a second thought and by total non-application of mind to the actual evidence available on record, appears to have accepted the fictional story projected by the prosecution that the accused ‘A’ was arrested from a flat where he was living with the accused ‘J’, the Commander-in-Chief of DHD(J) from Bangalore even though, there is no evidence on record to support this baseless conclusion – Held that the findings recorded by the trial Court against the accused ‘A’ are on the face of it perverse and are based on misreading of evidence and distortion of facts – There is no material on record to establish that the accused ‘A’ was arrested from the flat where ‘J’ used to reside nor could the prosecution establish any link of ‘A’ with the offending mail ids because the disclosure statement (Exhibit-117) by itself is a sheer piece of fabrication – It was prepared on 13.07.2009 by showing the presence of the accused ‘A’ at the SOU Police Station, whereas admittedly the accused was in judicial custody on that date – The scribe of this document, i.e. (PW-146), did not state that signature of the accused was also taken on the disclosure memo – In absence of the signature of the accused the disclosure memo, otherwise also become redundant -Procedure of opening the mails was admittedly carried out on 24.08.2009, wherein the accused was not associated and hence, the discovery was manifestly not made in furtherance of the disclosure statement of the accused – The copies of mails downloaded by the Investigating Officer were not supported by the Certificate under Section 65B of the Evidence Act and hence, the same are inadmissible in evidence – Held that the approach of the trial Court in relying upon the judgment in the case of Navjot Sandhu (supra) which is impliedly overruled on the aspect of mandate of Section 65B of the Evidence Act reflects an act of rank judicial impropriety – The prosecution could not lead even an iota of evidence so as to establish that the accused/appellant ‘A’ was in any manner involved in the so called conspiracy or that he was a member of the DHD(J). (Para 190 to 194)
(J) Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19, 45(1) – Penal Code, 1860, Sections 120-B, 121 and 121(A) – Evidence Act, 1872, Section 27, 65B – FIR No.170/2009 was registered at Basistha Police Station merely on the basis of recovery of cash and two licensed weapons but without any basis, the offences of waging war against the country (Section 121/121A IPC) were applied even though the Officer-in-Charge of the Basistha Police Station did not have any material to apply these offences at that stage – Though a big projection was made by the Investigation Agency regarding existence of a deep-rooted conspiracy amongst the components of the DHD(J) for indulging in terrorist activities but, no sincere effort was made to collect proper evidence to establish the theory of conspiracy – Some Mobile phone SIM Cards were recovered but no effort was made to trace or link the subscriber details thereof with any of the accused – The Call Detail Records were brought on record without procuring the mandatory certificate under Section 65B of the Act, 1872 which made the entire effort an exercise in futility – Inadmissible evidence in form of CDs prepared from news channel clippings were brought on record just in order to mislead the direction of the case and unnecessary addition was made to the bulk of the records – A substantial part of the prosecution case that the funds of N.C. Hills Autonomous Council were defalcated for the purpose of funding the terrorist/subversive activities of DHD(J) was given up in an absolutely perfunctory manner with a bald assertion in the charge-sheet that the investigation into these allegations had been assigned to the CBI – However, no effort was made to bring on record the details of the case/cases, if any, registered by the CBI on the basis of such assignment – Held thatthis serious omission on the part of the Investigation Agency has badly hampered and adversely affected the prosecution case and has brought in a huge element of uncertainty in the proceedings – A most important loophole which we have observed in the trial is that neither the Public Prosecutor nor the trial Court made any effort to exhibit the arrest memos of any of the charge-sheeted accused thereby putting a big question mark on the subsequent process of recoveries/ discoveries of incriminating facts – A totally frivolous exercise was made of trying to get the photos of one set of accused identified by another contrary to all tenets of criminal jurisprudence. -These shortcomings and loopholes highlighted above have destroyed the very fabric of the prosecution case and have contributed to its downfall and are sufficient to discard the same in its entirety – Statements of the witnesses (PW-90), who proved the sanction letter and the CIO, (PW-150) and the sanction letter also reflects total non-application of mind to the material fact and circumstances and is as vague as the conclusions of the Investigating Officer in the charge-sheet – Hence, the lack of non application of mind in issuance of the sanction letters (Exhibits-280 & 281) also goes to the root of the matter and vitiates the prosecution case. (Para 195, 196)
DISCUSSIONS IN CRL. APPEAL NO.233/2017 (REDAUL HUSSAIN KHAN) AND KARUNA SAIKIA
DISCUSSIONS IN CRL. APPEAL NO.205/2017 (JAYANTA KUMAR GHOSH); CRL. APPEAL NO.206/2017 (SANDIP KUMAR GHOSH) AND CRL. APPEAL NO.262/2017 (DEBASHISH BHATTACHARJEE)
(K) Criminal Procedure Code, 161, 162 – Evidence Act, 1872, Section 145 – Hostile witness – Previous statement – Admissibility in evidence – Witness PW-126 did not utter a single word in his examination-in-chief that he was pressurized to resign from his post and rather, he made an emphatic statement that he resigned because of ill health of himself and his wife – The trial Court verbatim reproduced the parts of previous police statement of this witness with which he was confronted by the prosecution after declaring him hostile and then, based on the fact that the CIO had proved the 161 Cr.PC statement of the witness, the entire previous statement of the witness was accepted as substantive evidence – Held that the record of the previous statement of the witness can be relied upon only if the witness upon being confronted in cross-examination, admits to have given such version – Trial Court committed gross illegality in accepting the confronted portions of the 161 Cr.PC statements which the witnesses denied upon being cross-examined as substantive admissible evidence and those parts have to be eschewed from consideration – Once this exercise is undertaken, it is apparent that there is no witness of prosecution who gave tangible evidence to support the prosecution theory regarding PW-126 having been forced to resign from the post of CEM of N.C. Hills Autonomous Council by the accused ‘M’ and/or other members of DHD(J). (Para 206, 213)
(L) Criminal Procedure Code, 1973, Section 306 – Evidence Act, 1872, illustration (b)to Section 114 read with Section 133 – Accomplice – Approver – Testimony of – Evidentiary value – Held that law is well settled that evidence of an approver should normally not be accepted without independent corroboration – In the present case, it was all the more essential because the approver gave a totally exculpatory version while trying to save his own skin – Thus, the version of PW-29 ‘G’ that he managed to get huge sum of more than Rs.5 Crores Rupees converted into US Dollars, without being corroborated by any other evidence, cannot be accepted ipso facto more particularly as the person who actually converted the said money into US Dollars, i.e. ‘T’, though apprehended in this case, was neither charge-sheeted nor he was made an witness – Rather, the CIO admitted that no investigation was made in this case regarding the role of ‘T’ – PW-29 in his cross-examination stated that he did not have any licence for doing the business of exchange of money which was for him an illegal business – It is impossible to believe that a huge sum of money, nearly to the tune of Rs.5 Crores, could be converted to US Dollars by a person in Kolkata city without leaving any trace – Thus, failure of the Investigation Agency to make any effort whatsoever for collecting evidence regarding the role of ‘T’ and rather, letting him go scot free despite having been apprehended (as per statement of ‘G’) creates a genuine doubt on the bona fides of the Investigation Agency – In addition, as ‘G’, being an approver, gave totally exculpatory version, his evidence is otherwise also, not acceptable – Held that the trial Court fell in grave error while placing reliance on the evidence of the approver, PW-29 ‘G’ – Once his evidence is excluded, there remains nothing on record so as to substantiate the prosecution case regarding the alleged conversion of money from Indian currency into US Dollars and hence, the very foundation of the prosecution case is breached. (Para 218)
(M) Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19, 45(1) – Penal Code, 1860, Sections 120-B, 121 and 121(A) – Criminal Procedure Code, 161, 162 – Entire thrust of the prosecution case in the charge-sheet that DHD(J) was involved in terrorist activities, was purely based on the 161 Cr.PC statements of the witnesses examined by the CIO during investigation – No actual investigation was made to find out the truth about these allegations which are nothing but castles built in thin air – No witness, who could give direct evidence regarding the alleged terrorist activities of DHD(J), was examined during trial – The witness (PW-24) just narrated a fictional story about the activities of DHD (J) and his statement has already been discussed and discarded – The only witness, who remotely mentioned about the so called violent activities of DHD(J), was (PW-46) – The major part of his examination-in-chief is relating to the activities of DHD and not DHD(J), which was allegedly a militant organisation led by ‘J’ operating in Karbi Anglong and N.C. Hills – The witness categorically stated that in January, 2003, ceasefire was declared between the militants and the Government and 300 cadres including ‘N’ himself were shifted to the designated camp – He further stated that in October, 2003, the organisation was separated and ‘J’ formed another militant organisation by the name of DHD(J)but what precisely was the nature of activities of DHD(J), the witness did not state – Held that the prosecution has miserably failed to lead reliable admissible and legally acceptable evidence in order to establish its primary allegation that DHD(J) was a terrorist gang involved in any kind of violent activities or that the funds allegedly siphoned off from the N.C. Hills Autonomous Council were routed to the cadres of DHD(J) for the purpose of procuring arms and ammunitions so as to facilitate the so called terrorist activities of DHD(J) -There remains no scope to maintain the conclusion of the trial Court that the funds allegedly siphoned off from the N.C. Hills Autonomous Council were used to finance the same – Charge for the offence under Section 17 of the UA (P) Act has to fail as an automatic consequence of the above conclusions – Already discarded the prosecution case regarding the accused being involved in a conspiracy and thus, the charge under Section 120B of the IPC can also not be sustained. (Para 227, 228)
(N) Unlawful Activities (Prevention) Act, 1967, Sections 17, 18, 19, 45(1) – Penal Code, 1860, Sections 120-B, 121 and 121(A) – Arms Act, 1959, Section 25(1)(d) – Appeal against conviction – Appreciation of evidence – The evidence led by the prosecution so as to connect the two important characters in the case with the DHD(J), namely, ‘V’ and ‘A’ held to be fabricated and cooked up – The inception of the prosecution case with the alleged recovery of Rs.1 Crore on 01.04.2009, is also tainted with grave discrepancies and contradictions, because the two star prosecution witnesses, namely, (PW-64) and (PW-113), categorically stated that the seizure was made in Barapani area of Meghalaya, whereas the Police Officials of Basistha Police Station projected that the seizure was made within the jurisdiction of the said Police Station – There are grave contradictions regarding the actual manner and place of seizure of the currency notes to the tune of Rs.1 Crore as is evident from the testimony of ‘M’(PW-10) and ‘S’ (PW-26) and the entire seizure has to be discarded – Held that conviction of the accused ‘A’ and ‘V’ in this case has been recorded on totally fabricated and cooked up evidence -Prosecution has miserably failed to bring home reliable, legal and admissible evidence so as to prove the charges against the accused appellants beyond all manner of doubt – Prosecution failed to prove commission of any terrorist act by the DHD(J) or any of its members, the charge for the offences under Section 16 and 20 of the UA(P) Act, which have been found proved against the accused ‘J’ and ‘N’ can also not be sustained – No weapon of any kind was recovered from accused ‘J’, ‘V’ and ‘N’ and thus, their conviction for the offence punishable under Section 25(1)(d) of the Arms Act is also unsustainable in the eyes of law – Impugned judgment passed by the learned Special Judge, NIA in Special NIA Case No.1/2009 does not stand to scrutiny and liable to be quashed and set aside – The accused appellants and the accused ‘M’ who did not prefer any appeal, are all acquitted of the charges – Made clear that the findings recorded in this judgment shall not prejudice the other criminal case/cases, if any, registered against any of the accused in relation to the allegations of defalcation of Government funds, criminal misconduct, fraud and forgery, etc. (Para 229 to 232)
GAUHATI HIGH COURT
2023 STPL(Web) 37 Gauhati
Shri Mohet Hojai Vs. The National Investigation Agency
Criminal Appeal No.238 of 2017AND Criminal Appeal No.205 of 2017 AND Criminal Appeal No.206 of 2017 AND Criminal Appeal No.233 of 2017 AND Criminal Appeal No.237 of 2017 AND Criminal Appeal No.256 of 2017 AND Criminal Appeal No.259 of 2017 AND Criminal Appeal No.261 of 2017AND Criminal Appeal No.262 of 2017AND Criminal Appeal No.286 of 2017 AND Criminal Appeal No.290 of 2017 -Decided on 11-08-2023.
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