MAHMOOD RAJASA SAIYEDversusSTATE OF GUJARAT

                                     [2008] 15 S.C.R. 1035
      (
           ).
                                MAHMOOD RAJASA SAIYED                              A
                                               v.
                                    STATE OF GUJARAT
                             (Criminal Appeal No. 1771 of 2008)

                                    NOVEMBER 11, 2008
                                                                                   8,

 ..   .
          l.4,
                     [OR. ARIJIT PASAYAT ANOP. SATHASIVAM, JJ.]

                      Prevention of Terrorism Act, 2002 - s. 49(6), (7) ands.
                 34 - Arrest of appellant for offences punishable under /PC,
                 Arms Act and POTA - Bail application u/s. 49(6) and (7) -         c
                 Dismissal of - On the ground that appellant found in
                 possession of fire-arms - Ten live cartridges recovered from
                 co-accused and his statement recorded uls. 32 - Notification
                 u/s. 4 of POTA in effect when accused charge-sheeted for
                 offence of criminal conspiracy - Appeal u/s. 34 - Rejection       D
                 of bail - Interference with - Held: Not called for. .

                     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
                 No. 1771 of 2008.

                     From the final Judgment and Order dated 17.7.2006 of the      E
                 High Court of Gujarat at Ahmadabad in Criminal Appeal No.
                 1432 of 2004.

                     Nima Ramakrishan and. M.A. Chinnasamy for the
                 Appellant.                                                        F
                     Hemantika Wahi for the Respondent

                     The Judgment of the Court was delivered by

                     OR. ARIJIT PASAYAT, J. 1. Leave granted.                      G
""'
                       2. Challenge in this appeal is t~ the order passed by a
 ,        ~
                 Division Bench of the Gujarat High Court dismissing the appeal
      '          filed under Section 34 of Prevention of Terrorism Act, 2002 (in
                 short 'POTA').
                                              1035                                 H
                                                                             /



    1036      SUPREME COURT REPORTS                 [2008] 15 S.C.R.


A        3. Factual details have been indicated in Criminal Appeal
    (Arising out of S.L.P (Crl.) No.4876of2006) disposed of today.

         4. Appellant was arrested in connection with POTA Case
  No.12 of 2003 arising out of ICR No.6 of 2003 of the DCB
B Crime Police Station, Ahmadabad for offences punishable
  under IPC, Arms Act and POTA. An application for bail was
  filed in terms of Section 49(6) and (7) of POTA. The bail                   ....
                                                                             ·._

  application was rejected primarily on the ground that the               >- :
  appellant was found in possession of country made revolverand
  foreign made. pistols and undisputedly same was recovered
C from his possession. Ten live cartridges were also recovered
  from another co-accused. The statement of the co-accused was
  recorded under Section 32 of POTA. The High Court held that
  it is not a fit case for grant of bail. Though, there was allegation
  of illegal custody no material was placed in that regard. In view
D of the reasons recorded by the High Court and the trial Court
  for rejecting the bail application, we are not inclined to interfere
  with the appeal.

        5. The Trial Court has observed as follows:
E
         "It is true that, the statement of Anas does not disclose this
       · fact but, when the notification u/s 4 of the POTA is in effect
         and when the accused are charge-l?heeted for the offence
         u/s 120..:s, criminal conspiracy, the Court sees no reason ·
         as fo why at this juncture the discretion should be used in      >--- (
F        his favour especially when the criminal conspiracy is                   I
         alleged to be intended by the accused to· terrorize the
         people of a particular section as well as to shake the
         integrity and unity of the nation in the aftermath of Godhra
         incident where some of the accused have also taken the
G        training from the neighbouring country Pakistan in deadly
         weapons, arms and ammunitions and who also intended
         to make use of that training by procuring weapons to
         execute the said conspiracy which are allegedly supplied
         by the present applicant accused."
H
           MAHMOODRAJASA SAIYED v. STATE OF GUJARAT                1037
                   [DR. ARIJIT PASAYAT, J.]
     ).

               6. The High Court has also observed in this regard as       A
'         follows:

              ·"The appellant was found in possession of country made
               revolver ~nd foreign made pistol and the same was
               recovered from his pocket. The panchnama in respect B
               thereof was prepared. The joint panchnama, which was
               prepared also mentions about the 10 live cartridges which
     ~
               were recovered from another accused Mohd. Tarik. The
               statements of the co-accused recorded under Section 32
               of the POTA have been perused by us and prima facie,
               the statements given by the co-accused indicate
                                                                          c
               involvement of the appellant in the commission of crime.
               The contention raised by the learned Advocate for the
             · appellant that the statement of the co-accused Anas
               Machiswala does not disclose prima facie involvement of
               the appellant is without any substance, as no!ifi~tion under D
               Section 4 of the POTA was in effect when ttie accused
               was charge-sheeted, and since the accused was charge-
               sheeted for the offence punishable under Section 1208,
               which is for criminal conspiracy, we see there was no
               reason to enlarge the appellant on regular bail. With regard E
               to the statement of co-accused, which was recorded under
               section 32 of the POTA, save and except the statement
               recorded under section 32 of the POTA, further
               corroboration was also forthcoming, Thus, the Court has
               to look into the entire material which was available against F
               the accused. The prima facie evidence was available
               against the appellant and as he was found in possession
               of the fire-arms, the learned Special Judge has rightly not
               used the discretion to enlarge the appellant on bail and we
               also see no reason to interfere with the order passed by G


'.   ~
               the learned Judge in appeal preferred by the appellant
               under Section 34 of the POTA. As regards the next
               submission of learned advocate for the appellant that the
               accused has remained in judicial custody for nearly two
               years, .we have considered the provisions of sub-sections H
    1038        SUPREME COURT RIIPORTS              [2008] 15 S.C.R.


A          (6) and (7) of section 49 qf the POTA and the rigorous
           imposed therein. The rigorous would definitely go with the
           completion of. the period of one year as -contemplated
           under sub-section (7) of section 49 of the POTA, but
           considering the provisions of section 439 of the Code of
B          Criminal Procedure along with evidence available against
           the accused, in our view, the accuseq, has not made out a
           case for this enlargement on regular bail."

      7. However, it is stated by learned counsel for the
C respondent-State that the trial is at the advance stage. The trial
  Court is requested to complete the trial as early as practicable.

           8. The appeal is dismissed.

    N.J.                                         Appeal dismissed.