V. Kanagaraj, J.
1. All these criminal appeals are directed against the judgment of conviction and sentence dated 8-3-2001 made in Sessions Case No. 1 of 1999 by the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee thereby sentencing all the appellants/accused to undergo R.I. for a period of four years for the offence punishable under Section 120-B, IPC, to undergo R.I. for a period of four years and to pay a fine of Rs. 500/- each in default to undergo R.I. for one month for the offence under Section 4 of the Explosive Substances Act, 1908, to undergo R.I. for a period of four years and to pay a fine of Rs. 500/- each in default to undergo R.I. for a period of one month for the offence under Section 5 of the Explosive Substances Act, 1908, to undergo R.I. for six months for the offence under Section 17(1) of the Criminal Law Amendment Act, 1908.
2. The case of the prosecution is that the appellants are all members of 'Al-umma' organisation, which is banned by the Government of Tamil Nadu; that between 27-3-1997 and 14-2-1998 at Door No. 34, Maroof Sahib Street, Anna Salai, Chennai, the appellants conspired to commit illegal act i.e. to plant powerful explosives in important cities all over Tamil Nadu and to strike terror in the minds of the people of Tamil Nadu and immediately after the bomb blast incident was over, their intention was to endanger life or to cause serious damage to public properties by themselves or to enable other persons by means thereof and in pursuance of the conspiracy, the accused, on 14-2-1998 at the said address were possessing explosive substance and engaged in illegal activities to bring up the organisation.
3. On the above accusation, the Court below having framed charges punishable under Section 120-B, IPC, r/w. Sections 4 and 5 of the Explosive Substances Act, 1908 and Section 17(1) of the Criminal Law Amendment Act, would conduct a thorough trial of the case, wherein on behalf of the prosecution, 13 witnesses would be examined for oral evidence as P.Ws. 1 to 13 and would mark 12 documents for documentary evidence as Exs. P. 1 to P. 12 besides marking 18 material objects as M.Os. 1 to 18. On behalf of the defence, they would examine, one Thandavamoorthy as D.W. 1 for oral evidence with no documents marked on their side.
4. The Court below, in consideration of the facts and circumstances of the case and in the light of the evidence adduced, held the appellants/accused guilty of the offences charged and sentenced them as aforementioned. Aggrieved, A. 5 and A. 11 have come forward to prefer the Criminal Appeal No. 230 of 2001, A. 7 has come forward to prefer the Criminal Appeal No. 232 of 2001; A. 1 to A.4, A. 6, A.8, A. 10 and A. 13 have come forward to prefer Criminal Appeal No. 420 of 2001 and A.9 has come forward to prefer the Criminal Appeal No. 793 of 2001.
5. The case of the prosecution is that accused 1 to 13 are members of the banned organisation by the Tamil Nadu Government viz., 'Al-umma's, that between 27-3-1997 and 14-2-1998, at Door No. 34, Maroof Sahib Street, Anna Salai, Chennai, the accused conspired to plant powerful explosives in major cities all over Tamil Nadu and to strike terror in the minds of the general public and to cause serious danger to life and damage to public properties by themselves or through others and in pursuance of the conspiracy, on 14-2-1998, at the said place, which is the headquarters of the office of the said banned organisation, they possessed explosive substances and engaged themselves in illegal activities in promotion of the ideals of the organisation.
6. The prosecution case in evidence through the witnesses examined and documents and material objects marked, as aforementioned, is that P.W. 1 who was the Inspector of Police, Law and Order in D2-Anna Salai P.S. would depose that on 14-2-1998, at various places in Coimbatore, bomb blasts were carried out particularly aiming at Mr. L.K. Advani as the target orchestrated by Muslim Fundamental organisation 'Al-umma' having Coimbatore as its headquarters, not only to show its protest against Bharatiya Janata Party but also to express its displeasure with the functioning of the said party and to create disturbance and disharmony among the religions, that the founder-leader of the organisation viz. Basha, having been arrested in many other cases based on the cases registered by the Central Bureau of Investigation and got released and was staying along with his accomplices and they were conspiring to disturb the ensuing elections making use of the explosive substances and indulging in extremist activities as it came to be known on reliable information; that on information of threat to BJP leader Sri Advani, who was to visit Madras, they have inspected the place occupied by the said group on 14-2-1998 at about 8.15 p.m. and sent messages and sending advance intimations in Ex. P.1 to the concerned Courts, he prepared FIR and when he approached the particular place, the first accused Basha and 12 others were engaged in preparing country bombs and petrol bombs with the help of empty liquor bottles and on seeing the police party, they attempted to escape but coordinating the place, all the 13 persons were arrested in the presence of the witnesses viz. G.P. Papa and Santharupan; that they also seized various types of knives, patta knives and veechu aruvals numbering 25, ten wooden logs, empty liquor bottles of 250 ml. filled with iron particles numbering seven and soda bottles numbering 20, petrol bottles with the thread numbering three, bottles with iron scrap numbering 11 and 180 ml. bottles with thread numbering 22 and 5 litre petrol contain can, 2 kg. chilly powder bag, many incriminating books, cash of Rs. 14,800/-belonging to the first accused, a jute bag containing 40 black stones and yet another bag containing 40 broken bricks, five country bombs, ordinary detonators numbering 50, gelatine sticks numbering ten and electric detonators numbering ten have been seized under the cover of Ex. P. 2 mahazar attested by the witnesses; that having taken all the accused and the seized articles to the police station, he registered the case in his station crime No. 294/98 under Sections 4 and 5 of the Explosive Substances Act and Section 17 of the Criminal Law Amendment Act in Ex. P. 3 FIR and recorded the confessional statement of the accused and sent the FIR and the M.Os. to the Court and on 15-2-1998, the accused were remanded to judicial custody.
7. Through this witness, all the material objects would also be marked from M.Os. 1 to 15 and this witness would depose that they have been sent for chemical examination and the report obtained; that he examined all the 13 witnesses and obtained their statements and as per the instructions of the higher officials, on 8-3-1998, copies were served in the prison for all the 13 accused under the National Security Act and for further investigation, the case diary was sent to Triplicane Police Station besides sending all the material objects to the police station on 15-2-1998.
8. P.W. 2 was the Revenue Inspector, Mylapore, who along with another Santharupan accompanied P.W. 1 during his raid and during the arrest of the accused and seizure and himself and Santharupan attested the seizure mahazar in Ex. P. 2 and he would adduce evidence adhering the evidence of P.W. 1.
9. P.W. 3 would depose that he is a resident of Nair Appa Pillai Street, Chennai-14 and this witness would speak about his landlord Humayun Bai asking him to arrange somebody as tenant of yet another house belonging to the landlord at Anna Salai and through a tea stall owner Ali Bai two persons viz. Sikander and Apsar came to engage the house for rent and on payment of Rs. 75,000/- as advance they agreed to be the tenants for a monthly rent of Rs. 4,000/- and the key was handed over and the said house was occupied that day itself and when he went there the next day, at the door steps, one of them was standing with AK-47 and did not allow him to enter in and thereafter he met these two persons Sikander and Apsar, that he saw the first accused and ten others occupying that house; that when he enquired with Sikander as to who they were, he replied that he would give the pipeline and asked him to go out; that it was intimated to the owner of the house and thereafter he did not go that side at all and then he came to know that they were members of the 'Al-Umma' terrorist organisation.
10. P.W. 4 is the tea shop owner at Mount Road and a resident of a place near Paragon theatre opposite Kalaivanar Arangam and having his tea shop next to the place of occurrence and this witness would also adduce evidence adhering P.W, 3 regarding letting out the house to Sikander and Aktar.
11. P.W. 5 is the landlord and this witness would also speak to the letting out of his house in favour of Sikander and Aktar and on coming to know that some other persons have been occupying the place, he asked Sikander and Aktar to vacate the house for which they replied that they would vacate it in a month; that for one month, they did not also give the rent; that he issued legal notice and lodged a complaint with the police but no action was initiated and when he went there demanding rent, he was not allowed to enter in and he was asked to come only telephoning; that thereafter from the newspaper, he came to know that the police have caused the arrest of Basha and his gang; that then he came to know that his house was sealed.
12. P.W. 6 is a tailor stitching seat covers for two wheelers and he would depose that he knew the first accused, who used to come to the Mosque for prayer and he would also depose that some other persons would also come along with him.
13. P.W. 7 is a motor mechanic. He would depose that he knew A. 1 since he used to come for prayer to the mosque and that from the news he came to know that he was arrested.
14. P.W. 8 was a clerk at Police Commissioner's Office and he would receive Ex. P. 6 requisition for sanction and on 30-6-1998, the sanction was accorded in Ex. P. 7.
15. P.W. 9 is the Scientific Officer in the Chemical Research Centre at Madras at the time of occurrence. He would depose that on receipt of the requisition letter from the XIII Metropolitan Magistrate, Egmore, Chennai for chemical analysis of the material objects seized in connection with Cr. No. 294/98, Anna Salai P.S., since the bombs were live, they were sent back for defusing and thereafter they were again sent as empty; that they received seven articles of that sort; that they found petrol in first three items and in the 4th item, they detected Sulphur, Aluminium, Ammonium, Nitrate and Nitroglycerine and Nitrocellulose; that in the 5th item; they detected Nitroglycerine and Nitrocellulose and items Nos. 6 and 7 contain petrol. The report issued by this witness would be marked as Ex. P.9.
16. P.W. 10 was the Deputy Superintendent of Police, Tamil Nadu Commando School, Bomb Detection and Disposal Squad, Chennai-28. This witness would depose that on 23-2-1998, on receipt of the requisition from the Magistrate, submitting the same with the Superintendent of Police and at his directions to initiate necessary action, he broke the parcel accompanied by Head Constable Murugavel and Inspector Siluvai and after checking-up the list, they defused and destroyed the articles by means of burning and blast and taking certain samples, he sent them to the Director of Forensic Science Department for chemical analysis with a request to send the report to the XIII Metropolitan Magistrate, Egmore, Chennai-8 and the letter sent by them to the XIII Metropolitan Magistrate, Chennai would be marked as Ex. P. 10.
17. P.W. 11 was a clerical staff in the Magistrate's Court and this witness would adduce evidence to the effect that he received the material objects as per Form No. 95 numbering 23 and sent the same along with Ex. P. 11 requisition from the Court for chemical analysis and received from the chemical analysis centre, Ex. P. 9 report and for the receipt of the form, the receipt issued is Ex. P. 7.
18. P.W. 12 was the Inspector of Police and the Investigating Officer and he would adduce evidence to the effect that he took-up the investigation in Cr. No. 294/98 of D.2 Anna Salai P.S. on 16-2-1998; that al-ready another Inspector caused the arrest of the accused and sent them for remand and has also sent the M.Os. for chemical analysis; that he had also examined the witnesses and recorded their statements on 14-2-1998 and 15-2-1998, he had sent the accused for remand and the M.Os. to the Court; that on 14-2-1998, he had registered the FIR and sent the same to the Court; that the accused were also put under preventive detention taking such steps; that this witness having done re-investigation, having verified and re-examining all that being done by his predecessor, he would also examine witnesses Mohadeen Basha and Humayun Alifa and also witnesses Nos. 2 and 3 who have already been examined by his predecessor; that he also examined Shabuddeen and Kadirvel and recorded their statements; that on 21-2-1998, he examined the Court Clerk of the XIII M.M., Egmore, Chennai. He also examined one Muthusamy of the Tamil Nadu Commander School for Detection and Destruction of Explosive Substances; that on 26-2-1998, he examined the chemical analysis and thereafter obtaining the sanction from the District Collector which was Ex. P. 7, he proceeded with the further investigation. He would further depose that the amount of Rs. 14,700/- seized from the first accused is belonging to the first accused himself. This witness would ultimately depose that on completion of his investigation on 1-7-1998, he filed the charge-sheet under Sections 4 and 5 of the Explosive Substances Act, 1908 and Sections 17(1) and 14 of the Criminal Amendment Act and under Section 120-B of the IPC.
19. P.W. 13 is the sanctioning authority and the then District Collector, Chennai and this witness would depose that the Commissioner of Police, Chennai sent his requisition dated 17-6-1998 for according sanction in the matter of D3 Anna Salai P.S. Crime No. 294/98 since under Sections 4 and 5 of the Explosive Substances Act also, the case has been registered against certain accused; that on receipt of the request on 26-6-1998, which is Ex. P. 6, he also received all the material documents of the case; that having examined those documents' under Section 7 of the Explosive Substances Act as per G.O. Ms. No. 1188 Home dated 28-5-1991, he accorded sanction for prosecution on his being satisfied that the case was fit enough for prosecution and the sanction order was accorded in Ex. P. 7 against the accused Nos. 1 to 13 named therein.
20. On the part of the defence, the sole witness examined by them was one Thandavamoorthy and this witness would depose that when he was serving as Grade-I Constable in G-2 Anna Salai P.S., one Marudapandiyan was the Inspector at that time, that on the date of raid of the residence of S.A. Basha, he was not in the raiding party and after finishing his duty, he had gone back home at that time, but he could not remember what time did he finish his duty that day; that he could not also remember what was his duty time that day but would say that on 15-2-1998, he came back for duty and even that day, what time did he come for duty he did not know; that on 23-2-1998, he was given a sealed cover by the Court of XIII M.M., Egmore, Chennai, but he does not know what is the dimension of the cover nor the weight of the same, but he was asked to hand it over to the explosive detection and destruction squad; that he took it, keeping the same in the cycle carrier and excepting that cover, he did not take any other article or item; that at 2.30 p.m., he gave it to somebody in the office, but he could not remember what is the rank of the officer concerned; that thereafter he went to the police station at Egmore and again at 6.30 p.m., he went to the property stores of the Court; that the next day, from the explosive department, they gave another cover which he entrusted with the forensic department; that he did not know what they did with the cover that was entrusted the previous day; that at the time of giving cover or thereafter when he was examined, they did not give anything to him; that he did not serve at the residence where A. 1 lived; that he did not know that at the time of entrustment of this job, whether in the requisition it was stipulated that he should bring the passport.
21. During arguments, the learned counsel appearing on behalf of the appellants would submit that the occurrence was dated 14-2-1998 at 8.15 p.m., that the charges are two in number, the first one that the accused continued to be the members of the banned organisation 'Al-umma' and secondly that they were in possession of explosive substances without authorisation and hence the charges under Sections 4 and 5 of the Explosive Substances Act; that so far as the first charge is concerned, the punishment is rigorous imprisonment; that for the offences under Sections 4 and 5 of the 'Explosive Substances Act, all the accused were sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 500/- for each offence in default to undergo rigorous imprisonment for a further period of one month each; that for the offence under Section 120-B, IPC, all the accused were sentenced to undergo rigorous imprisonment for a period of four years and for the offence under Section 17(1) of the Criminal Law Amendment Act, 1908, the accused were sentenced to undergo rigorous imprisonment for a period of six months, that it is not the members of this organisation but it is the continuation of the membership after banning of the organisation.
22. The learned counsel for the appellants would further submit that under Article 19 of the Constitution of India, it is a fundamental right to have such organisations or members of such organisations and that there cannot be a punishment with retrospective effect, that under these circumstances, the prosecution must establish that after banning, these persons continued to be members of the banned organisation; that it was banned on 14-2-1998; that 13 persons were taken into custody on the very same charge that the organisation was banned and would cite the evidence of the Investigating Officer P.W. 12 and would exhort that for a charge under Section 17(1) of the Criminal Law Amendment Act, no conviction could sustain since the said Act itself has been declared unconstitutional by the Honourable Supreme Court in State of Madras v. V. G. Row reported in .
23. The learned counsel would further submit that the Investigating Officer specifically admits that they are not liable to be punished; that the second charge is possession of explosive substances. Citing from the evidence of P.W. 1 wherein he has deposed to the effect that he did not know whether any number would be there in the detonators or where they have been manufactured etc.; that detonator is not a piece of wire but it is an article; that what does it contain, he does not know and whether the detonator alone would blast or whether there is explosive power inside it also he does not know; that he did not so far handled the detonators; that he has been imparted training for a week in explosive substances; that he cannot say that what is detonator without seeing the same; that merely seeing a detonator, he cannot say that it is dangerous; that for storing the detonators, no special arrangement need be necessary and they could be separately stored but nearby no explosives could be kept. Citing the above deposition, the learned counsel for the appellants would submit that P.W. 1 is not an expert nor could he say accurately as to what is the detonator or the explosive substance or its power or usage etc. and therefore his evidence is not sufficient to decide so far as the character of the articles seized are concerned. The learned counsel would also point out reading out the evidence of the sole defence witness D.W. 1 who was cited as a prosecution witness but not examined on the prosecution side, and hence he was examined as a defence witness. He would say that some materials were handed over by the expert; that the recovery of these articles were on 14-2-1998, but P.W. 10 says that on 23-2-1998, they were sent for chemical analysis and for nine days, the articles were in the custody of the police; that for these nine days delay, no explanation comes forth from the prosecution, that the FIR was at 11 o'clock, that the search and seizure was at 8.00 p.m.; that at 7 o'clock, the time is advanced and they have been sent to the Court by the police; that with the advance intimation, the FIR and seizure mahazar were all sent together to the Court which reached at 4.00 p.m. on 15-2-1998.
24. The learned counsel appearing on behalf of the appellants in Criminal Appeal Nos. 230 and 232 of 2001 would submit that on 14-2-1998, the G.O. was passed and the police gets information about the 'Al-umma' activists particularly that of A. 1; that regarding Section 120-B, IPC, the apprehension of conspiracy that P.W. 1 received was on 'no reliable information; that under Section 165 of the Police Standing Orders, he has power; that Ex. P.3 FIR was registered but at 4.00 p.m. on 14-2-1998; that in Ex. P. 2, there is no crime number; that in Ex. P. 1 there is a crime number; that the police have violated all procedures in the seizure; that no observation mahazar or rough sketch of the scene of occurrence had been prepared; that on 14-2-1998, the FIR had been registered at 4-30 p.m. itself, that though P.W. 9 the Forensic Expert was examined before the Court, his 161, Cr. P.C. statement was not recorded.
25. The learned counsel, at this juncture, would refer to Ex. P. 8, letter written by the XIII M.M., Egmore, Ex. P. 9 the report from the Chemical Analysis and Ex. P. 10 the letter written by the Officer-in-charge of the Commandos Bomb Squad to the Court.
26. The learned counsel would deal with Section 293 of the Cr. P.C. in relation to the reports of certain Government Scientific Experts which could be used as evidence in any enquiry, the trial or other proceedings and that the Court may summon and examine any such evidence as to submit his report. The learned counsel would then point out that Exs. P. 8 to P. 10 do not tally. At this juncture, the learned counsel would cite a judgment of the Honourable Apex Court in State of Rajasthan v. Rehman reported in wherein dealing with the provisions of Central Excise and Salt Tax Act and the Rules framed thereunder, it has been held :
'The object of the search under the Act is only to ascertain whether there is a contravention of the provisions of the Act or the Rules; Rule 201 enables the authorised officer to make a search only for the investigation of an offence. The power of search given under Chapter 14 of the Cr. P.C. is incidental to the conduct of investigation which the police officer is authorised by law to make. Searches made by a police officer during the course of an investigation of a cognizable offence can properly be approximated with the searches to be made by the authorised officer under Rule 201 of the Rules for, in the former case, the police officer makes a search during the investigation of a cognizable offence and in the latter the authorised officer makes the search to ascertain whether a person contravened the provisions of the Act or the Rules, which is an offence. There is also no reason whether conditions should be imposed in the matter of a search by the police officer under Section 165 of the Criminal Procedure Code, but no such safeguard need be provided in the case of a search by the excise officer under the Rules. The legislature, by stating that Section 18 of the Act that the searches under the Act and the Rules shall be carried out in accordance with the provisions of the Code relating to searches, clearly indicated that the appropriate provisions of the Code shall govern searches authorised under the Act and the Rules. We, therefore hold that the provisions of Section 165 of the Code must be followed in the matter of searches under Rule 201 of the Rules. The recording of reasons under Section 165 does not confer on the officer jurisdiction to make the search, though it is a necessary condition for making a search. Section 165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is ignore the material part of the provisions governing searches. If that can be ignored, it cannot be said that the search is carried out in accordance with the provisions of the Code of Criminal Procedure, it would be a search made in contravention of the provisions of the Code.'
27. In reply, the learned Government Advocate on the criminal side citing Ex. P. 11 the letter written by the Court to the Bomb Detection Squad would point out that ten items noted therein which Were sent for chemical analysis; that they were returned for certain compliance and they were again sent back at the time there were only seven items since their contention is that even though ten items were sent, only seven items were examined leaving three as incorrect, that regarding the search, the evidence of P.W. 1 is reliable; that P.W. 2 is one who was accompanied by P.W. 1 during the time of search and seizure; that P.Ws. 3 and 4 are the tailor and the tea stall owners who would appear to the letting out the premises in favour of two persons viz. Sikander and Apsar without knowing that, the premises is going to be occupied by these accused for their illegal purposes; that P.W. 5 is the owner of the house, who would plead innocence and on coming to know that unconnected persons were occupying the building, he wanted the accused to vacate the same. Pointing out from the evidence of P.W. 9 particularly the information part of Ex. P. 9, the learned Government Advocate would submit that the chemical analyst has certified that they detected Nitrogen and Nitrocellulose, which are high explosives; that the substance detected in Item No. 4 can be used in improvised explosive devices; that petrol can be used in explosive device; that items Nos. 4 and 5 are used up in analysis.
28. Reading out the opinion offered by the expert witness P.W.9, the learned Government Advocate would exhort that no other evidence need be necessary for the accused were in possession of these prohibited items, which are explosive substance and for the purpose of making use of some other substances seized for explosive substances and therefore the offence has been made out completely under the Explosive Substances Act also and since no other better purpose has been brought forth for the accused to have joined hands with each other totalling 13, the conspiracy also come to be proved and therefore the learned Government Advocate would end-up his arguments praying to confirm the conviction and sentence of the lower Court in its judgment.
29. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both what comes to be known is that these appellants in all the criminal appeals who were the accused Nos. 1 to 13 before the trial Court were alleged to be the members of the banned organisation 'Al-umma' between 27-3-1997 and 14-2-1998 at door No. 34, Maroof Sahib Street, Anna Salai, Chennai, they entered into a criminal conspiracy to plant powerful explosives in important cities in Tamil Nadu and to strike terror in the minds of people of Tamil Nadu and to endanger lives and cause serious damage to property and in pursuance of the conspiracy, the accused, on 14-2-1998 at the said address were in possession of the explosive substances and engaged themselves in illegal activities in promotion of their banned organisation and hence the charges under Section 120-B, IPC, Sections 4 and 5 of the Explosive Substances Act and Section 17(1) of the Criminal Law Amendment Act, 1908.
30. The prosecution, which is burdened to prove its case with such standard of proof beyond all reasonable doubts, has examined, among other witnesses, P.W. 1 who was the Inspector of Law and Order in Anna Salai D2 Police Station would speak to the banning of the Organisation Al-umma, the bomb blast carried out at various places in Coimbatore to strike terror in the minds of the general public about the organisation and to create a fear psychoses among the general public besides targeting Mr. L. K. Advani, who was to visit Coimbatore at the time. This witness would also speak to the ' activities of the first appellant in organising the gang of the Al-umma activist and preparing with lethal weapons, country made bombs and petrol bombs and some of such persons collected from among the members of the banned organisation are the other accused and according to this witness they have all been engaged in the preparation of such explosive substance keeping the tools and appliances which are shown as the material objects in the case and which have been detailed under Ex.P2 seizure mahazar only attested by witnesses. This witness is vital in the sense that he is one who with his party on reliable information raiding the premises bearing door No. 34, Maroof Sahib Street, Anna Salai, Chennai on 14-2-1998 wherein all these appellants/accused joining hands with each other have not only conspire in perpetration of their illegal designs but also indulging in the preparation of the explosive substances thereby committing an offence punishable under Section 120-B of the I.P.C. and Sections 4 and 5 of the Explosive Substances Act, 1908 and under Section 17(1) of the Criminal Law Amendment Act, 1908 and hence this witness having caused arrest of the appellants/ accused and seized the lethal weapons and explosive substances from the said premises would bring them all to the police station and registered the case in D.2 Anna Salai P.S. Crime No. 294/1998 and would send the F.I.R. and the material objects to the Court on 15-2-1998, further remanding the appellants/accused to judicial custody. P.W.2 who was the Revenue Inspector, Mylapore, who had accompanied P.W. 1 and was with him during raid, arrest and seizure and would adduce evidence adhering the evidence of P.W.1 and it is P.W.3, who would introduce two persons namely Sikander and Apsar to his landlord Humayun Bai through whom the appellants/accused have taken on lease the said premises and the evidence of all P.Ws. 4 to 7 would consolidate the evidence of P.W.3 serving as corroborative evidence regarding engaging the premises for rent under a different pretext through this middle man to make use of the same for their illegal activities. It is P.W.9, who is the Scientific Officer of the Chemical Research Centre and would testify the Material Objects sent to her and certify that she had received 7 material objects after defusing the live bombs and in item 4 of those, she would detect sulphur, Aluminium, Ammonium, Nitrate and Nitroglycerine and Nitrocellulose and in item No. 5, Nitroglycerine and Nitrocellulose and item Nos. 6 and 7, contain petrol. This witness would issue her report in Ex.P9 to the said effect. All other witnesses including the investigating officer would do all the legal formalities as it had been extracted here before and there is nothing special to be mentioned.
31. During arguments, the learned counsel appearing on behalf of the appellants in C.A. No. 420 of 2001 would highly emphasise that it was on 14-2-1998 the organisation Al-umma was banned by the Government Order and on the very same day the arrest of these appellants have been caused and therefore, it is the burden of the prosecution to prove that the appellants who were admittedly the members of the Al-umma organisation prior to its banning continued to be the members even after its banning. Whereas no evidence comes forth regarding this evidence aspect with Section 120-B, I.P.C. so as to allege that they enter into a conspiracy to commit the criminal acts making use of the explosive substances.
32. At this juncture the vital point is that it is a open case of the defence and there is no denying of the fact that all these accused were members of the organisation Al-umma prior to its banning. While such is the admitted fact of the appellants/accused the onus to prove that they did not continue to be the members of the same organisation only lies on their shoulders and this onus, since being fixed on the accused, cannot be shifted to the prosecution as it has been expected by the learned counsel for the appellants. In their discharge of this onus which is heavily on them it should be mentioned that nothing comes-forth from their side in proof of their discontinuance from their membership and activities of the said organisation even after its banning by the Government.
33. Secondly for charge under Section 17(1) of the Criminal Law Amendment Act the learned counsel would not only exhort that under this Section no conviction could sustain since the said Act itself has been declared unconstitutional by the Hon'ble Supreme Court in the decided case in The State of Madras v. V. G. Row reported in . But, on perusal of the relevant passage of this judgment it is glaringly seen that only under Section 15(2)(b) of the Criminal Law Amendment Act, 1908 as amended by Criminal Law Amendment (Madras) Act, 1950, has been declared unconstitutional and void since it falls outside the scope of authorised restrictions under Clause (4) of Article 19 of the Constitution. Absolutely there is no mention in the said judgment about Section 17(1) of the Criminal Law Amendment Act under which the appellants/accused have been charged. Therefore, under this score also the appellants have failed to fish out anything in their favour.
34. Regarding the possession of the explosive substances reciting from the evidence of P.W. 1 the learned counsel would point out that the said officer did not know anything about the power to manoeuvring process or the practical usage of the same or even the conditions of those explosive substances and that the said officer is ignorant of anything regarding the explosives and therefore the learned counsel would say that he is not an expert nor could he say accurately as to what is detonator or the explosive substances or its power or usage and therefore his evidence is not sufficient to decide the case of such nature. The learned counsel would also point out that in spite of these articles have been seized on 14-2-1998 itself as per the evidence of P.W. 10 only on 23-2-1998 they have been sent for chemical analysis and the delay of 9 days in the custody of the police, no proper explanation comes-forth from the prosecution. Though as per rules at the earlier possible opportunity that should be sent to the Court the same has been done on 15-2-1998 itself and they have been entrusted for the safe custody with the police themselves and for the purpose of chemical analysis after 9 days they have to send it back to the Court with the requisition and therefore the circumstances under which they have been re-entrusted with the police kept in the custody and again sent to the Court cannot be taken as a delay and hence this cannot also be taken to weaken the case of the prosecution particularly in view of the fact that the articles along with Ex.P2 seizure mahazar have been sent to the Court on 15-2-1998 itself.
35. The other counsel appearing on behalf of the appellants/accused in C.A. Nos. 230 and 232 of 2001 would question the credibility of the prosecution case regarding Section 120-B of the I.P.C. that the apprehension of conspiracy that P.W. 1 received was not but reliable information; that in Ex.P2 there is no crime number but in Ex.P1 there is a crime number. Whether it is regarding the non mention of the conspiracy on reliable information or the non mention of the crime number in Ex.P2 which is a subsequent document to Ex.P1, they are minor omissions and since they are not affecting the vital aspects of the case, these minor irregularities cannot be said to have affect the case of the prosecution. Likewise the other charge that no observation mahazar or rough sketch has been prepared at the scene of occurrence could also be attributed only for omission which cannot be attributed to have caused any serious damage to the case of the prosecution particularly in view of Ex.P2 search list prepared on the spot gives to that details of the articles seized, place where it was seized, which bear signatures of not only P.W. 1 but also the independent witnesses and the signature of the first accused himself and therefore Ex.P2 document is sufficient evidence for the raid conducted, arrest of accused Nos. 1 and 13 named and seizure of M.Os. on the spot which is sufficient evidence for reliance to be placed regarding the genuineness of what P.W. 1 and his party did on the date, time place and in the manner alleged.
36. So far as the other judgment, cited regarding the search reported in the Apex Court in dealing with the provisions of the Central Excises and Salt Act and the Rules framed thereunder has observed that provisions of Section 165 of the Code must be followed it is not only regarding the reasons as contemplated under this Section but also P.W. 1 has sent advance intimation to the Court regarding the search which had to be undertaken without any loss of time and therefore it cannot also be said that P.W. 1 has flouted the provisions of Section 165 of Cr.P.C.
37. A perusal of the judgment of the lower Court would reveal that the trial Court has not only traced the facts and circumstances as pleaded by the prosecution without missing even the minute points but also would trace the evidence of each and every witness and in full consideration of the position of facts and law concerned with the whole of the case and in appreciation of the evidence to the context of the case in the manner required by law would ultimately arrive at the conclusion to convict all the accused for the offences charged and sentenced them to various terms of imprisonment and find in the manner extracted supra not only in appreciation of the evidence in its individual merits but on overall consideration of the entire evidence and circumstances of the case and the evidence placed on record would suggest that the trial Court has arrived at the right conclusion in the circumstances of the case since there is no serious irregularity or illegality or laches or lacunae so as to disturb the conviction and sentence arrived at by the trial Court and therefore, this Court does not find any valid reason to cause its interference into the well considered and merited judgment rendered by the trial Court in the above case.
In result,
(i) all the above Criminal Appeals are without merit and they are dismissed as such;
(ii) the judgment dated 8-3-2001 made in S.C. No. 1 of 1999 by the Court of Sessions Judge, Exclusive Trial of Bomb Blast Cases, Chennai at Poonamallee thereby convicting the appellants/accused under Section 120-B of the IPC and Sections 4 and 5 of the Explosive Substances Act, 1908 and sentencing them respectively to undergo R.I. for 4 years, R.I. for 4 years and to pay a fine of Rs. 500/-, in default to undergo further term of one month R.I., R.I. for 4 years and to pay a fine of Rs. 500/-, in default to undergo further term of one month R.I. and R.I. for 6 months are hereby confirmed.