P.K. Musahary, J.@mdashThis appeal has been preferred u/s 378(1) of the Cr.P.C. challenging the judgment and order dated 12.6.2008 passed
by the learned Addl. Sessions Judge (Fast Track Court) No. 4, Kamrup at Guwahati in Sessions Case No. 222(K)/2004 acquitting all the
accused respondents of the charge u/s 120(B)/121/121(A)/122/124(A)/153(A)/34 IPC and setting them at liberty. The prosecution case, in brief,
is that:
(i) During routine interrogation of the arrested accused persons of Dudhnoi P.S. Case No. 67/99 u/s 120(B)/121/121(A)/122/,124(A)/153(A)/34
IPC, it came to light that Pakistan Intelligence Service i.e. Inter Services Intelligence, hereinafter referred to as ""ISI"", contacted some persons
residing in various parts of Assam for carrying out subversive activities in the State. These persons entered into a conspiracy alongwith the ISI
operatives to recruit and train up a large section of Muslim youths in the state for carrying out Holy War (Jehad) by resorting to terrorist activities.
These persons along with the ISI operatives are conspiring to create large scale disturbances in the state to overawe the established Government
According to information available these persons are also planning to instigate the innocent and law abiding Muslim population of the state to
develop hatred between Muslim and non Muslim population. With this purpose in view, some of these persons have recruited and sent several
Muslim youths for arms and explosive training in Bangladesh, Pakistan, Afganistan and other countries. After completion of their training those
persons had been acquiring and smuggling arms, ammunitions and explosive, into India with the help of ISI for waging war, against the Govt. of
India. The activities of those persons are likely to lead to serious communal disturbances as well as serious threat to national security. The
Inspector of Police, S.B., Assam Kahilipara, Sri Kandarpa Kr. Nath, therefore, lodged an F.I.R. with the Officer-in-Charge, Special Operation
Unit
(ii) The Officer-in-Charge of Special Operation Unit, on receipt of the formal FIR from the said officer, registered a case on 06.08.99, being SOU
P.S. Case No. 1/99 u/s 120(B)/121/121(A)/122/124(A)/153(A)/34 and started the investigation. The police after completion of investigation
submitted charge-sheet against 17 accused persons u/s 120(B)/121/121(A)/122/124(A)/153(A) IPC showing 10(ten) other accused persons as
absconders.
(iii) The Accused/Respondents, on receipt of process from the court, appeared before the Court of the learned CJM, Kamrup, Guwahati but as
the offences were exclusively triable by the Court of Sessions, the learned CJM, Kamrup, Guwahati, committed the case to the Court of Sessions,
Kamrup, Guwahati and the learned Sessions Judge, Kamrup, Guwahati, made over the case to the Court of the Ad-hoc Addl. Sessions Judge
(FTC No. 3) Kamrup, Guwahati for disposal. The learned Ad-hoc Addl. Sessions Judge (FTC No. 3), Kamrup, Guwahati framed charges
against the accused petitioners and one Muslimuddin under Sections 120(B)/121/121(A)/122/124(A)/153(A)/34 IPC, which were read over and
clearly explained to them, to which they pleaded not guilty and claimed to be tried. After framing of charge, during the trial, accused Muslimuddin
Ali absconded and hence the case against him was filed and the teamed Adhoc Addl. Sessions Judge proceeded with the trial against the other
7(seven) accused persons. After examination of six witnesses the learned Addl. Sessions Judge (FTC No. 3) Kamrup, Guwahati, returned the
case to the learned Sessions Judge, Kamrup, Guwahati expressing his unwillingness to proceed with the case and the learned Sessions Judge,
Kamrup, Guwahati, finally transferred the case to the Court of Additional Sessions Judge (FTC No. 4) Kamrup, Guwahati, for disposal.
2. The prosecution, in support of its case examined as many as 19 witnesses and the defence examined none. The learned Addl. Sessions Judge
(FTC No. 4) Kamrup Guwahati (hereinafter referred to as learned trial Court only) after closure of the evidence, examined the
accused/respondents u/s 313 Cr.P.C., and thereafter proceeded to hear the case on the point, as envisaged u/s 232 Cr.P.C. but as the learned
trial Court did not consider it to be a case of no evidence, did not record an order of acquittal and, therefore, asked the accused/respondents to
enter upon their defence by adducing evidence but all the accused/respondents declined to examine any defence witness.
The learned trial Court on consideration of evidence on record and upon hearing both the parties passed the impugned judgment and order
acquitting all the accused/respondents of the charges under Sections 120(B)/121/121(A)/122/124(A)/153(A)/34 IPC and directed to set them at
liberty.
3. We have heard Mr. D. Saikia, learned Addl. Advocate General, Assam assisted by Mr. KA Mazumdar, Addl. P.P., Assam for the appellant
State and also heard Mr. S.C. Biswas learned counsel for the respondents.
4. Mr. Saikia, learned Addl. Advocate General, Assam, appearing for the State appellant, submits that the prosecution has successfully brought on
record and proved the fact of seizure of huge US dollars and Bangaladeshi currency notes from the possession of the accused respondent Nos. 1,
2, 6 and 7 by adducing cogent evidence. He also submits that by exhibiting the seizure list, ext. 4, the prosecution also proved the fact that the
accused respondent Nos. 1 and 2 are foreign nationals and they have entered India illegally with an evil mission and design in mind.
5. Mr. D. Saikia, at the first instance, broadly submitted that the learned trial Court failed to appreciate the evidence of PW 6, Debendra Deka,
DSP of Panbazar police station, who clearly stated in his examination-in-chief that while he was the DSP of Panbazar police station during the year
1999, seized huge US Dollar and Bangladeshi takka including Indian rupees with one identity card belonging to one Akram Ali, some documents
written in both Urdu and English, and also an identity card issued by Pakistani Government, instruction manual to handle wrist watch, one hand
diary containing instructions on operation of various improvised explosive devices, pocket diary with some phone numbers etc which conclusively
proved that the accused respondents were planning to make bombs for carrying out subversive activities in the State for which they are liable to be
punished for committing offence of sedition u/s 124 IPC.
Secondly, he submits that the learned trial Court failed to take into consideration the clinching pieces of oral and documentary evidence on record,
particularly Ext. 4, seizure list, wherein it is clearly mentioned that the accused respondent No. 2 was possessing an identity card issued by the
Government of Pakistan and inspite of that the learned trial court simply relied on the address furnished in the charge sheet submitted by the I.O.
and illegally acquitted the said accused respondent No. 2 of the charge.
Thirdly it is submitted that the finding of the learned trial court to the effect that ""except the I.O. none of the prosecution witness have ever stated
that the accused persons are the members of any unlawful organisation and they are making any conspiracy against the Government"" is not correct
inasmuch PW 15 clearly stated and corroborated the said fact in his deposition by stating in the Court that all the accused respondents were
related to Harkat-Ul-Muzahiddin group and as such the finding of the learned trial Court is perverse, erroneous and bad in law.
Fourthly it is stated that prosecution has been able to prove that all the accused respondents were conspiring together on 7.8.1999 to commit
offence of waging war against the State and in furtherance of their common object, they came to an agreement, and further, in pursuance of that
agreement carried foreign currency punishable u/s 121A IPC.
Fifthly the prosecution, by adducing oral and documentary evidence, has been able to prove that the accused respondents on 7.8.99 agreed to do
or cause to be done illegal acts and for that they collected men and money with sole intention of waging war against the State and the country and
as such the accused respondents have committed offence punishable u/s. 120(B) and 153A IPC.
6. The substance of whole submission of Mr. Saikia is that the prosecution succeeded in proving the charges beyond all reasonable doubt and so
the learned trial court should have passed an order of conviction and sentence against all the accused respondents. To establish his submission he
has taken us through the evidence of prosecution witnesses.
7. Per contra, Mr. S.C. Biswas, learned counsel appearing for the respondents submits that the materials collected by the prosecution and the
evidence adduced by it, do not prove the charge framed against the respondents beyond all reasonable doubt The prosecution claimed recovery of
incriminating materials, more particularly, the US Dollar and Bangaladeshi currencies but there is no independent eye witness to the fact of
recovery and seizure thereof. Mr. Biswas strongly argues that the prosecution failed to prove the charge against the respondents beyond
reasonable doubt and as such the learned trial Court rightly acquitted all the respondents of the charge u/s 121/121A/122/224A/153A/34 IPC,
which calls for no interference in appeal.
8. The prosecution has examined five independent witnesses to establish the charges. We have gone through the evidence of all the witnesses
available on record:
9. PW 1, Md. Abdul Bari, deposed that on 4.10.99 he was working in an NGO named Markajul-Ma-Arif. The said NGO has its head office at
Hojai and Branch office at Panbazar. He was working at Panbazar branch office on 4.10.99. One Mr. K.K. Nath, Inspector of Special Operation
Unit (SOU in short) visited the Panbazar office of the said NGO alongwith his staff and wanted to have a look at computer machine suspecting that
there are some objectionable things in the computer set. The police team seized the computer set alongwith job register book, bill books and one
copy each of various leaflets in his presence. In cross-examination he stated that the accused respondents who were present in the dock were, in
no way, connected with the said NGO. He further stated that the accused person had never been DTP operator in the said firm.
10. PW 2 is one Sri Amitava Thakuria. He stated that at 5-10 PM on 5.8.99 he was going towards Garigaon Bidyanagar and having seen some
policemen and gathering of people in the house of one ""kari Sahel"" Kafeyatulla by name, he went there and saw B.C. Das S.I. of Police, Panbazar
P.S.(PW 15), DSP Mr. D. Deka and ASI Mr. R. Saikia searching the house of one ""Karizonab"" in connection with some cases. Just after the
search the police seized about 14 documents vide seizure list, Ext. 2, which was prepared in his presence. He had a glance at the said seizure list
and put his signature, Ext. 2(2). In cross-examination he clearly stated that there was no document regarding anti-national and extremist
organisation. None of the documents seized could give any clue that might cause harm to country and the society. On being further cross-
examined, he stated that he did not know as to who, from where and when the documents were seized. During search he went inside the house.
The police interrogated him. But the seized documents were not shown to him. Md. Abdul Wahid, who was working in the said Panbazar DTP
centre on 6.10.99 was examined as PW 3. He testified that the police visited the DTP centre (Niro), seized one bill book, some leaflets and one
computer set vide seizure list Ext. 1, on which he put his signature, Ext. 1(2). He corroborated the evidence of PW 1. His evidence is that the
seized articles belonged to their office, Markajul-Ma-Arif, and the accused Zakil Hussain and Jahirul Haque, Kafayat Ullah did not have any
relation with the seized articles. Seized articles were not seen in the court at the time of making the deposition.
11. PW 4, Md. Mustak Ahmed, was also an employee of the said NGO at Panbazar. He made deposition corroborating the evidence of PW 1
and 3. Md. Rafique Ullah, PW 5 is a businessman and owns a shop at Jalukbari. He came to know that three policemen picked up his elder
brother in a scooter. Later on he come to know that his elder brother was produced in the court of CJM at Guwahati. The police, thereafter, came
to their house at about 7 PM on the same day and seized some documents from their house vide Ext 2. He signed the said seizure list as a witness
and proved his signature, Ext 2(2). In cross examination he stated that the documents seized do not relate to any anti national activities and,
therefore, there is no case of anti-national activities against him.
12. PW 8, MD Hafiz Abdul Rashid, was working as proof reader in the said Markazul-Ma DTP centre at Panbazar, Guwahati on 6.10.99. He
deposed before the Court corroborating the evidence of PW 1, 3 and 4. According to him no extremist activities have been carried out from the
said DTP centre and the accused respondents are not connected with the said centre. He further stated that the accused respondents never visited
the DTP centre/NGO. PW 9, Md. Ali Ajgar, was also an employee of the said DTP centre. He has corroborated the evidence of 1, 3, 4 and 8.
He stated that one Muslim Ali Muzahid, often used to come to their DTP Centre/Press and he would be able to recognise him. The said Muslim
Ali Muzahid was not present alongwith the accused respondents who were present in the Court at the time of making deposition. In cross-
examination he denied that the Markazul-Ma-Arif is an extremist organisation. He asserted that it is a religious centre. It was only an NGO and it
does not indulge in any anti-national activities. His evidence is that he does not know accused Zakil Ah and Zahirul Haque as they never visited the
NGO''s office.
13. Now we come to the deposition of official witnesses Md. Abdul Aziz Ali, a resident of village Garigaon, who deposed that when the I.O. Sri
B.C. Das conducted search in the house of accused Kafayat Ullah on 5.8.99, he was present. He also stated that the following articles were seized
in his presence:
1. 6 copy invoice challan of S.H. Kalkar & Co. Ltd. In the name of SBI Guwahati University Branch with one memo from SBI.
2. Two (nos) letter to spare Aromar one order copy in the name of M/s. Kastry book depot. One challan of spare Aromars.
3. One letter (urdu language).
4. Some small papers containing some phone no.
5. one book (Mashik pattich)
6. One pass port application form
7. One telephone book (index no.)
8. one diary (chayan)
9. One book
10. One pocket photograph
11. one Tatham Trantra Book
12. One (Jamiyal illegible Hirdar Sewa) book
13. Two nos Bank opening A/d form in the name of Anowar Hussain
14. 5 nos. pass port application form.
The aforesaid articles were seized vide seizure list Ext. 2 on which he put his signature, Ext. 2(3). In cross examination he stated that seizure list,
Ext. 2, was prepared at the place of occurrence and at the time of making seizure, the aforesaid accused was away from home. He also stated that
no paper, evidencing association of the aforesaid accused with any extremist outfit, was found from his house. This witness knows the accused
Kafayat Ullah as a teacher of a Madrassa and he had never seen the accused involved in anti-national activities nor has he heard about it.
14. Now we come to the deposition of official witness PW 6, Sri Debendra Deka, I.O. of Panbazar P.S. Case No. 321/99, which is related to
Crl. Appl No. 149/2008. He was the officer who arrested seven suspected foreign nationals, allegedly agents of ISI and working in Assam in
collusion with local extremist elements with intention to wage war against the Government of India for which they have procured huge arms and
ammunitions and US dollars and Bangaladeshi Takka by indulging in act of sabotage on the important public installations and establishments and
creating communal tension in the society between the Muslim and non Muslim communities in the State. The said witness seized US dollars and
Bangaladeshi currencies at the Guwahan Railway Reservation counter, from the possession of some accused persons in the said Panbazar P.S.
Case against whom charges were framed u/s. 120B/121/121A/153A/34 IPC. He also seized various articles including diary, hotel bills etc. from
the said accused persons. In his evidence the said witnesses also disclosed that some accused persons involved in Panbazar P.S. Case were
implicated in the SOU PS case No. 1/99.
15. PW10, Pankaj Talukdar, was working as DSB constable on 10.11.99 at Barpeta road P.S. He was present when the I.O. Tarun Hazarika,
PW 13, of Barpeta Road P.S. seized the articles. He put his signature, Ext. 5(1), on the seizure list (Exr. 5). He had described/mentioned the
articles seized as under
1. One original seizure list vide Barpeta Road P.S. M.R. No. 59/99 seized by S.I. Tarun Hazarika in connection with Barpeta Road P.S. Case
No. 104/99, containing (1) one revolver(Made in Japan is written on the body) (2) 9 MM (pistol''s 5 round live bullets (3) 762 SLR''s 4 round
(live) bullets (4) AK 47''s 14 round live bullets
2. One Photostat copy of the above seizure list, certified by the O/C Barpeta road P.S.
In cross-examination he stated that he did not have a look at the articles properly. But he clearly stated that he was not present at the time of
making the seizure and so he did not see from whom, where and how those articles were seized. He also stated that he did not see from whom the
I.O., Tarun Hazarika, seized the articles.
16. PW 11, Bijoy Das, was the second officer of Barpeta Road P.S. As per his evidence he was present when the I.O. of this case seized the
aforesaid articles from I.O. Tarun Hazarika. He corroborated the evidence of PW 10. In cross-examination he, however, stated that he does not
know from whom the I.O., Tarun Hazarika seized the articles and the said seized articles were not seen in the Court at the time of making the
deposition.
17. Gauri Shankar Ram, PW 12, stated that he was working as Second Officer at Panbazar police Station on 5.8.99. He was the Officer-in-
Charge of the said P.S. on that day. He was associated with the police team who arrested the accused persons and seized the articles including
foreign currencies at Guwahati Railway Reservation counter in connection with Panbazar P.S. case No. 321/99. In cross-examination he deposed
that he did not go to the house of the accused Kafayatulla and he did not see the seized articles in the Court at the time of making the deposition.
18. PW 13, Sri Tarun Hazarika, was working as S.I. of police at Barpeta Road Police Station. He corroborated the evidence of PW 10, Pankaj
Talukdar, in regard to seizure of articles from the house of accused Farrok @ Asan Ali. According to this witness, Sri Kandarpe Kumar Nath,
I.O. of SOU P.S. case No. 1/99 came to Barpeta Road P.S. and seized the articles which were earlier seized by him in connection with Barpeta
Road P.S. case No. 104/99. This witness confirmed that he seized the aforesaid articles in connection with Barpeta road P.S. case No. 104/99
from the accused Farrook @ Asan Ali and accused Moinul Hoque @ Mannan. to cross-examination this witness in the seizure lists, Ext. 5 and 6,
there is no mention about the relationship between the accused Farook and Moinul. There is also no mention as to whether the accused persons
had any connection with the articles seized from Farook and Moinul. However, he clarified that the accused persons involved in the present case
are not involved in Barpeta Road P.S. Case No. 104/99. He also clarified that in Ext. 5 and 6, he did not mention that the accused Farook and
Moinul are ISI members.
19. PW 14, Sri Nripendra Medhi, was working as P.I. of court at Goalpara on 28.5.99. On that day the original records of Dudhnoi P.S. case
No. 67/99 were available in the PST office at Goalpara. He stated that the I.O. of SOU Case No. 1/99 issued a police requisition for seizure of
the seizure list related to Dudhnoi P.S. Case No. 67/99. With due permission of CJM, Goalpara the said I.O. of SOU Case No. 1/99 seized the
seizure list related to Dudhnoi P.S. Case No. 67/99. The I.O. of the said SOU Case took photocopy thereof leaving the original seizure list in the
custody of PW 14. He disclosed that the present accused Kafeya Tulla, Jakir Hussain, Fasiullah, Quri Salim, Jahidul, Javed Waqar and others,
have been implicated in Dudhnoi P.S. Case No. 67/99. In cross-examination this witness, however, stated that the CJM, did not issue any written
permission for seizure of the above seizure list. There was an oral permission only. He also stated that in Ext. 7 there is no mention that Dudhnoi
P.S. Case No. 67/99 and SOU Case No. 1/99 were inter related.
20. PW 15, Bhuban Das, was an Attached officer to Panbazar P.S. on 5.8.99. On that day PW. 12, Gauri Sankar Ram, was officiating as
Officer-in-charge. The I.O. of the SOU P.S. Case No. 1/99, Sri K.K. Nath (PW 19) gave a requisition for interrogation of accused Kafeya Tulla.
There was a G.D. entry in connection with the same and he went to Garigaon Bidyapur accompanied by DSP, Panbazar and other police
personnel. They met accused Kafeya Tulla at his home and took him in custody. During house search they found objectionable documents from
the said accused and seized them in presence of witnesses, namely, Abdul Kalam Ajad (PW2), Amitava Thakuria (PW2), Rafiqulla (PW 5)and
Md. Abdul Aziz Ali (PW7). According to this witness the aforesaid accused Kafeya Tulla and others are associated with Harkat-Ul-Mujahiddia.
In cross-examination he stated that he did not see the articles seized from the house of accused Kafeya Tulla, whom he did not know since before.
He also stated that the words ""Harkat-Ul-Mujahiddin"" and ""Deshdrohi"" were not mentioned in Ext. 2. He did not closely observe the seized items,
rather he looked at them casually, as asked by the SOU P.S. He apprehended the accused Kafeyat Tulla and handed him over to them. He does
not know what happened to him thereafter.
21. Dilip Choudhury, PW 16, was serving as S.I. of police in the S.B., SOU. As per his evidence, Sri K.K. Nath (PW 19) asked him in writing to
go to Dudhnoi and seize the articles which were seized earlier in connection with Dudhnoi P.S. Case no. 67/99 and accordingly, he went to
Krishnai O.P. under Dhudhnoi P.S. and met its in-charge. He was told that one seizure list alongwith original records had already been sent to
Goalpara P.S.I. Court and the rest of the seizure list were with him. He then went to Goalpara Court and made a prayer before the CJM,
Goalpara to allow him to seize the seizure list from the P.S.I Court. The Court gave him permission to seize the required documents from the file of
Dudhnoi P.S. Case no. 67/99. Thereafter he returned to Krishnai out post and seized two seizure lists from the file of Dudhnoi P.S. No. 67/99 in
presence of witnesses Lohit Ch Rava and Inspector Tarun Ch. Dey. He testified that Ext 8 and 9 are the seizure lists mentioned above and Ext.
8(1) is his signature while Ext. 8(2) is the signature of PW 19, K.K. Nath. He also proved the other lists, Ext. 9 which bears his signature, Ext.
9(1). In cross-examination he stated that he does not know from whom those articles were seized. As per his statement it is not mentioned in Ext.
7 that Dudhnoi P.S. case No. 67/99 and SOU PS Case No. 1/99 are inter related and he does not know who were the accused persons in the
Dudhnoi P.S. case No. 67/99. He could not even mention the names of the accused persons involved in the SOU P.S. case No. 1/99. He also
admitted that he did not go through the seizure list related to Dudhnoi P.S. Case No. 67/99.
22. Md. Hazarat Ali, PW 17, deposed that on 25.8.99, while he was working as Asstt. P.S.I. in Goalpara Court, Dilip Kr Choudhury, I.O. of the
said SOU P.S. case No. 1/99 seized some photographs. He corroborated the evidence of PW 16. The aforesaid seizures were made vide Exts.
7, 8 and 9. In cross-examination he admitted that he did not know who and from whom the articles were seized in connection with Dudhnoi P.S.
Case No. 67/99, and he does not know the exact nature of the seized articles or contents of the seizure lists. He also admitted that he does not
know the connection between the Dudhnoi P.S. Case No. 67/99 and SOU P.S. Case No. 1/99.
23. PW 18, Sri Chandra Kanta Nath, was working as constable under Deben Deka, DSP, Panbazar P.S. on 20.9.99. On the said day, K.K.
Nath (PW 19), in his presence, seized some papers related to Panbazar P.S. GDE No. 234 dated 7.8.99 from DSP, Deben Deka vide seizure
list, Ext. 4 and he signed the same. In cross examination he admitted that he did not go through the said seizure list to ascertain which item was
seized. He stated that he does not know when and from whom the said DSP, Deben Deka seized the items. He even does not know the contents
thereof. He signed the said Ext. 4 as because he was asked to do so.
24. The I.O. of the present Case, Sri Kandarpa Kumar Nath, was examined as PW 19. He was working as Inspector in the Special Operation
Unit at the relevant time i.e. 3.8.99. He stated that he went to Goalpara for interrogation of some activists of Harkat-Ul-Mujahiddin. He found the
accused Mulim Ali of Dudhnoi P.S. Case No. 67/99 in the office of SB, Goalpara. After interrogation he came to know that the accused Muslim
Ali along with Alauddin @ Umar Abdul Kasem @ Mustaque @ Usman Jakir Hussain @ Rafique, Jehirul Islam @ Hasan Mabia, Saiful Islam @
Abdul Mannan, Saukat Ali, Nurul Amin @ Sadik @ Moniruddin and Kafayatulla hatched conspiracy to create disturbance in Assam and to wage
war against India. They also hatched conspiracy to induce Muslims against the Non-Muslims residing in Assam. With that intention the above
named persons sent several Muslim youths to Pakistan, Bangladesh, Afghanistan and other countries for arms training. After completion of training
they would carry arms and ammunitions and explosive substances through ISI to wage war against India. Then he lodged an FIR at SOU P.S. and
accordingly SOU case No. 1/99 u/s 120-B/121/121-A/122/124-A/153-A IPC was registered. He was given the charge of investigation of the
said case. Thereafter, as per direction of SP, SOU, he made requisition at Panbazar P.S. to apprehend Kafayatulla vide SOU G.D.E. No. 36
dated 3.8.99. In that requisition he mentioned that interrogation of accused Kafayatulla was necessary as he was related to Harkat-Ul-Muzahiddin
and his house was to be searched. Thereafter, the I.G.P. through S.P. Nalbari, picked up Nurul Amin. He interrogated both Kafeyatulla and
Nurul. Nurul Amin admitted before him that he was connected with both Harkat-Ul-Muzahidin and Harkat Jehad Alkaida groups. Accused
Kafayatulla informed him that in the month of November/December in the year 1997, one physically handicapped man along with another person
came to his shop and enquired about Hafij Basir Ahmed. The age of that man was about 3 5 years and he disclosed that he hailed from Kashmir in
the month of January, 1986 and went to Bangladesh alongwith Fakaruddin of Lakhimpur to participate in ""Estema"". They stayed there for about
60 days. During that period he visited several places of Bangladesh and also issued leaflet ill the name of Jehad. Muslim Ali also attended the said
Estema"". In the year 1997, one day at noon, Nurul Amin, alongwith one boy aged about 21 years, named Nadim of Delhi came to his shop.
Nurul gave him 500 U.S. Dollars and 500 Indian currencies wrapped with a piece of paper for keeping it in safe custody. After somedays, he
came to know from news paper report that Nadim was arrested by police for carrying explosive substances. After some days, Faruk from
Bangladesh enquired over telephone whether Nurul Amin had received a parcel sent by Nadim through Faruk. He came to know from Muslim Ali
and Nurul Amin that Kafayatulla was a member of Harkat-Ul-Muzahidin and Harkat-Ul Jehad. But Kayafatulla denied it. In the meantime he came
to know that one Saiful Islam @ Gulgul Khan, a member of PULF, was arrested in connection with Barpeta Road P.S. Case. The said accused
Saiful Ismal was also shown arrested in this case. Accused Mainul Haque, Abdul Kasem, Muslim Alt and Jakir Hussain, who were arrested in
Dudhnoi P.S. Case No. 67/99, were also shown arrested in this case. This witness further stated that from the confessional statement of accused
Allaudin he came to know that accused Moulana Muslim Ali, Abubakkar Siddique, Abul Mannan, Sah Alam, Najrul Islam, Makbul Hussain,
Abdul Kasem and Zakir Hussain were connected with Harkat-Ul-Muzahiddin. Accused Akbar Ali, who was arrested by Barpeta Road P.S. on
17.8.99 was also shown arrested in this case. During interrogation, Mainul Haque and Abdul Kasem admitted that they were members of Harkat-
Ul-Muzahidin group. They also admitted that they have a link with ULFA and the accused Akbar Ali, Rabul Ali and Muslim Ali were also
connected with PULF. In the mean time accused Qari Salim, Fasiullah, Javed Wakar and Moulana Hafiz of Panbazar P.S. Case No. 321/99 were
also shown arrested in this Case. During investigation he seized 5 articles from DTP Centre, named Markajul-Ma-Arif. There were about 28
accused persons and he arrested 16 of them. On completion of investigation he obtained the prosecution sanction and submitted the charge-sheet
against the accused persons. In his cross-examination he admitted that he is the first informant and the I/O of this case. He himself filed the charge-
sheet also. He'' submitted the F.I.R. on the basis of the statements made by accused Muslim Ali in Dudhnoi P.S. case No. 67/99. Accused Muslim
Ali was an accused of this case also. But his present status is not known to him. Relating to this case he never made any contact with External
Affairs Ministry and he did not go to Jammu and Kashmir. He submitted the charge-sheet against the accused persons on the basis of statements
of the co-accused. He admitted that nobody told him that the accused persons belong to ISI. But from their conduct he came to know that they
are ISI agents. He admitted that police officer Dilip Kr. Choudhury and Bhupen Das recorded the statement of the witnesses as per his direction.
He stated that he does not know about the present position of Panbazar P.S. Case No. 321/99, Dudhnoi P.S. Case No. 67/99, Barpeta Road
P.S. Case No. 107/99, Karimganj P.S. Case No. 144/99 and Dudhnoi P.S. Case No. 208/99. He admitted that he seized a computer set and
CD from the said DTP Centre. But the owner of that DTP Centre was not arrested. He further stated that he made some calls to the phone
numbers found in the diary of the accused persons, but now he could not say what materials were found from there. He seized some articles from
DSP D. Deka vide Ext-4. He confirmed that P.W. 13, Tarun Hazarika, did not state before him that he had collected materials evidencing accused
Zakir Hussain, Jehirul Haque, Kafayatulla, Fasiullah, Javed Wakar, Qari Salim and Moulana Hafiz as members of ISI. He admitted that he did not
record the statement of accused Kafayatulla u/s 164 Cr.P.C. He further stated that accused Nurul Amin, Muslimuddin, Allauddin, Saiful Islam,
Fasiulla and Qari Salim stated before him that accused Kafayatulla instigated the Muslims against the Non-Muslims and also hatched conspiracy to
wage war against India. He admitted that those accused persons did not make any confession before the Court. He stated that the name of
accused Fasiullah, Qari Salim, Javed Wakar and Moulana Hafiz were not mentioned in the FIR. He, however, stated that in regard to allegation of
inciting Muslims against Non-Muslims, there was no entry in the GD. There was also no entry in the GD in regard to alleged training of Muslim
youths in Afghanistan, Pakistan etc. Except in the CD, there was no such entry in the GD. His evidence is that during interrogation the accused of
Dudhnoi P.S. case mentioned the names of accused Fasiullah and Mustaffa. But the statement of the said accused was not recorded u/s 164
Cr.P.C. He denied that accused Fasiullah entered Assam for business purpose while accused Javed Wakar, Moulana Hafiz and Qari Salim for
religious purpose.
25. As per submission of the learned Addl. Advocate General, the evidence of official witness has been corroborated in material particulars by the
evidence of independent witnesses, namely, PWs 1 to 5,7,8 and 9. But the learned trial Court tailed to appreciate the said evidence on record and
arrived at a wrong conclusion holding the accused respondents not guilty and acquitted them all. The I.O., PW 19, according to Mr. Saikia,
collected materials by visiting the Dudhnoi and Barpeta Road police stations alongwith his staff. He seized the articles and the seizure lists prepared
earlier in the related cases namely, Dudhnoi P.S. Case No. 67/99 registered u/s. 120B/121/121A/122/124A/153A IPC and Barpeta Road P.S.
Case No. 104/99 u/s 120B/121/121A/124A IPC read with Section 10/ 13 UPA Act The said I.O. also seized the articles alongwith the seizure
lists which were seized by police in connection with Panbazar P.S. Case No. 321/99 u/s 121/121A/153A read with Section 14 of the Foreigners
Act and Section 10/13 UAP Act It has been persuaded that in the Panbazat P.S. Case No. 321/99, out of seven accused persons, at least 2 were
convicted u/s 14 of the Foreigners Act, In the said Panbazar P.S. Case US Dollars and Bangladeshi Takka were recovered from some of the
present accused respondents along with incriminating documents. Those who were convicted u/s 14 of the Foreigners Act possessed no passport
and valid documents for visiting India and Assam. During investigation of aforesaid Panbazar and Barpeta Road P.S. cases, sufficient materials
were found evidencing that the accused respondents are foreigners/agents of the ISI and they have been sent to India to carry out acts of sabotage
and disruption targeting at important public installations and institutions and also to bring disharmony in the Indian society by spreading hatred and
communal feeling as a part of greater intention to wage war against the Government of India. It is submitted that the Government of Pakistan,
through the ISI, supplied huge anus and ammunitions and also provided fund to the ISI agents to execute the aforesaid plan and waging war against
India and the present accused respondents are indulging in antinational activities to achieve the said end. According to learned Addl. Advocate
General, the evidence of I.O.(PW 19) which is corroborated by the evidence of independent witnesses, could not be impeached by the defence in
any manner. In any case. It is argued that the prosecution adduced cogent and reliable evidence fully establishing the charges framed against the
accused respondents, yet the learned trial Court erroneously held that the charges against them could not be proved and accordingly passed the
impugned order acquitting all the accused respondents which is unsustainable in law.;
26. It is submitted that apart from me evidence of witnesses, there are enough substantial evidence proving the guilt of there respondents. In the
Course of oral argument, Mr. Saikia has referred to and relied upon the following authorities:
(1) State of Tripura Vs. Dr. Sankar Paul and Others, on parameters of High Court''s power in an appeal against acquittal and principles laid down
relating to Section 378 Cr.P.C. under which the High Court can review the entire evidence and arrive at its own conclusion interfering with findings
of the trial court to ensure prevention of miscarriage of justice and for the ends of justice:
(2) Abdul Rejjak Vs. State of Tripura, ;
(3) G. Parshwanath Vs. State of Karnataka, ;
(4) Gagan Kanojia and Another Vs. State of Punjab, ;
(5) Golakonda Venkateswara Rao Vs. State of Andhra Pradesh, ;
(6) State of Maharashtra Vs. Goraksha Ambaji Adsul, :
The above authorities (2) to (6) have been cited in support of his submissions that (a) circumstantial evidence can sometime be more reliable than
eye witness account, (b) in cases where evidence is purely circumstantial in nature, the facts and circumstances from which the conclusion of guilt is
sought to be drawn, must be fully established beyond any reasonable doubt and as such circumstances must be consistent and must unerringly
point to the guilt of the accused and the chain of circumstances must be established by the prosecution and (c) in such cases of circumstantial
evidence, if prosecution can establish the chain of events to satisfy ingredients of commission of offence, accused would be liable to suffer
consequences of his proven guilt
(7) Smt. Runa Nath alias Rina Nath Vs. State of Tripura, in regard to charge of criminal conspiracy,
(8) State (N.C.T. of Delhi) Vs. Navjot Sandhu @ Afsan Guru, ;
(9) Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, ;
(10) State of Gujarat Vs. Anirudh singhh and another, in regard to evidence of police witness in criminal trial and permissibility of conviction unless
corroborated by other evidence of independent witness,
(11) Mohinder Singh and Another Vs. State of Punjab and Others, , in regard to evidence of eye witness and assessment thereof by the court for
conviction of the accused,
(12) State of U.P Vs. Chhoteylal, in regard to law that minor contradictions and inconsistencies are immaterial.
(13) Tarseem Kumar Vs. The Delhi Administration, pertaining to necessity and value of absence of motive in determining guilt of the accused and
the effect of absence of motive in determining the case.
27. Per contra, Mr. S.C. Biswas, learned counsel for the accused/respondents, submits that the materials collected by the prosecution and the
evidence adduced by it, do not prove the charges framed against the respondents beyond all reasonable doubt The prosecution claims recovery
and seizure of incriminating materials, more particularly, the US dollars and Bangladeshi currencies, but there is no independent eye witness to
recovery and seizure thereof. PW-2, 4 and 7 are, no doubt, independent witnesses, but they are not eye witnesses to recovery of the foreign
currencies and other incriminating documents. Mr. Biswas strongly argued that the prosecution failed to prove the charge against the respondents
beyond reasonable doubt and as such the learned trial court rightly acquitted all the accused respondents of the charges u/s 120-
B/121A/122/153A/34 IPC. The learned trial court committed illegality in convicting accused respondent No. 3, Fasiullah Hussain @ Hamid
Mahmood@ Khalid Mahmud; accused respondent No. 2, Md. Billal Mia @ Nanu Mia @ Jalil Lal Mia u/s 14 of the Foreigners Act.
28. The main charges framed against the respondents are:--
(i) that in between 31.7.99 to 7.8.99, in furtherance of their common intention, they agreed to do an illegal act of sabotage etc and in furtherance of
the said agreement, they carried foreign currency notes to commit the offence u/s 121A IPC punishable with imprisonment for life.
(ii) that all the accused respondents, in between 31.7.99 to 7.8.99, in furtherance of their common intention, conspired to wage war against the
Govt., of India by means of criminal force.
(iii) that all the accused respondents, in between 31.7.99 to 7.8.99, in furtherance of their common intention by visible representations, attempted
to promote feelings of enmity amongst the law abiding Muslim citizens of the State apart from non-Muslim population.
(iv) that accused respondents No. 2, Md. Bilal Mia @ Nanu Mia @ Jalil Lal Mia and accused respondent No. 3, Fasiullah Hussain @ Hamid
Mahmood @ Khalid Mahmood, being not Indian citizens, entered India without any valid document, and thus they contravened the provision of
the Foreigners Act.
29. The charge No. 1 to 4 above are co-related. The basic allegation against the respondents is that they have been planted by the Pakistani Inter
Service Intelligence (in short ISI) and they have a greater plan to wage war against Govt. of India. The accused respondents have been deputed
and engaged by the ISI and financed by the Govt., of Pakistan who carried out the act of subversion and sabotage by way of destroying the major
installations or establishments and also by creating communal disturbance and tension amongst the Muslim and non-Muslim citizens of India
30. We have already appreciated the evidence on record. So far the evidence of official witnesses are concerned, it is found that they took steps
like interrogation of the suspected persons including the present respondents who are already implicated in other cases, particularly, Dudhnoi P.S.
Case No. 67/99. The I.O., PW19, in this case, in his deposition gave detailed account of steps taken by him like visiting the said police station and
other places to interrogate the suspected persons including the respondents after arresting them and also seizure of articles already seized by the
I.O. of the aforesaid police station cases including the seizure list of those connected case etc. His evidence on the steps taken during investigation
has been found to be corroborated by the evidence of other official witness. The present police station case is dependent on the materials collected
in the aforesaid Dudhnoi and Barpeta Road police Station cases. All those cases are co-related to each other inasmuch as all the cases basically
pertain to criminal conspiracy and action of the ISI to wage war against India.
31. We have carefully gone through the evidence of the independent witnesses PWs 4 to 5 and 7 to 9. From the evidence of PWs 1, 3, 4, 6, 8
and 9 it is found that they are employees of Markajul-Ma-Arif, an NGO cum DTP centre at Panbazar, in Guwahati. The police visited the said
centre on 6.10.99 and seized Bill book leaflet and one computer set. But these witnesses have denied that some documents relating to anti-national
and extremist organisation and carrying out extremist activities from the said DTP centre was ever recovered or seized from it The independent
witnesses, PW 2 and 11, who were present during search, were not employees of the said NGO. They signed the seizure list as seizure witnesses.
They have not made any statement to the effect that incriminating documents were recovered or seized from the aforesaid office of the NGO.
What sort of documents or materials were seized during the search of the office of the said NGO, have been mentioned in the seizure list itself.
Description of those articles has already been collected and we find that they are not incriminating in nature. Those seized articles have no
connection with the alleged act of sabotage or illegal activities of extremist organisation or any plan of ISI for waging war against India. The
prosecution collected no material to prove that the said NGO Markajul-Ma-Arif or any of its employee is connected with any extremist
organisation or indulging in extremist activities in league with or at the instance of the ISI. The nexus between the respondents with the ISI or any
other extremist organisation could not be proved by the prosecution.
32. From the evidence of official witnesses, PW13, Sri Tarun Hazarika, who was working as S.I. at the Barpeta Road Police Station, It appears
that in connection with Barpeta Road P.S. Case No. 104/99 one revolver with inscription in English on its body ""made in Japan"" and five rounds of
live 9 mm pistol bullets, eight rounds of live 7.62 SLR cartridges and eight rounds of live AK 42 cartridges were recovered and seized. The I.O. of
this Case, PW 19, seized the original seizure list through which the aforesaid articles were seized. No details has been furnished as to how, from
where and from whom the said articles(ammunitions) were seized by police.The said seizure has failed to disclose or establish the connection of the
accused respondents in the present case with the aforesaid Barpeta Road P.S. case No. 104/99. The prosecution, except making seizure of the
original seizure list prepared in connection with Barpeta Road Police Station, could not establish or show prima-facie that those arms and
ammunitions were supplied by the ISI to carry out the intended act of waging war against India. PW11, Bijoy Das, is also another police officer
posted at Barpeta police station at the relevant time. He supported the evidence of PW 19 but his evidence is confined to seizure of original seizure
list of Barpeta Road P.S. No. 104/99 as mentioned above. A constable of the said Barpeta Road police station who was examined as PW
10(Pankaj Talukdar) testified the seizure of original seizure list of Barpeta Road P.S. Case No. 104/99. The said witness also corroborated the
above evidence On recovery and seizure of arms and ammunitions. There are some inconsistencies to the evidence of PW 10 which are minor in
nature. We may ignore the little in consistency in the evidence of PW 10, 11 and 13. But we cannot ignore the feet that the prosecution failed to
bring on record that the arms and ammunition, allegedly seized in connection with Barpeta Road P.S. case No. 104/99, were supplied by the ISI
or for that matter by the Government of Pakistan to their agents working in India and the State of Assam. Nothing has come out from the evidence
of PW 14 and 17 to establish the nexus of present respondent with ISI and their activities towards waging war against India. The evidence of these
two witnesses simply testified the fact that PW 16, I.O. of SOU P.S. case No. 1/99, seized copies of the original seizure lists, related to Dudhooi
P.S. Case No. 67/99. The evidence of PW 16, I.O. of the Dudhnoi P.S. case, has been corroborated by these two witnesses but in substance
involvement of the accused respondents in the act of criminal conspiracy and waging war against India, has not been proved.
33. We now come to the evidence of official witnesses PW 12 and 15. PW 12, Sri Gauri Shankar Ram and PW 15, Sri Bhuban Ch Das were the
second officer and attached officer respectively, posted at Panbazar police station at the relevant time. They have testified the arrest of accused
persons in connection with Panbazar police station case No. 321/99 and seizure of foreign currencies and other articles from their possession. It
may be mentioned here that the Criminal Appeal No. 149/08 is connected with the said police station case and the said appeal has been filed by
the State against the acquittal of the accused persons therein, which has been heard alongwith the present appeal. We have already mentioned
earlier that for want of sufficient materials and evidence bringing home the nexus of the accused persons and then-alleged activities with alleged
conspiracy of waging war against the country, the accused persons in the said case, among whom some of them are also implicated in the present
case, have been acquitted vide judgment and order dated 12.6.2008 passed by learned Addl. Sessions Judge(FTC) No. 4, Kamrup, Guwahati in
Sessions Case No. 248(K)/02. We are constrained to observe that in the present case also the investigating agency has failed to collect sufficient
materials and for the same reason, the prosecution has also, in their turn failed to prove the charge against the present accused respondents.
34. We have gone through the cases cited by the learned Addl. Advocate General as mentioned above. There is nothing to dispute on the power
of the High Court to review the entire evidence as enunciated in Sankar Paul''s case(supra). It was a case where the accused were acquitted
although the confessional statement of the accused-persons recorded by Judicial Magistrate 1st Class was found to be involuntary and violative of
Section 104 Cr.P.C. In the present case no such confessional statement of any accused-respondent was recorded. While accepting the
parameters of the High Court''s power in deciding the appeal against acquittal as laid down by this Court in the said case we are unable to agree
with the learned Addl. Advocate General that any benefit could be given to the State reversing the order of acquittal to conviction of the
respondents.
35. There is also no dispute on the law that circumstantial evidence can sometime be more reliable than the eye witness account. The case of
Abdul Rejjak (supra) is a case where the accused-appellant, for some reason, killed his wife inside the house and when some neighbours, after
hearing the hue and cry arrived at appellant''s house, he fled away without answering the queries. The case of Parshwanath (supra) also relates to
killing of wife and daughter by the husband/father by setting fire on the deceased inside the room. Incriminating circumstantial evidence was found
against the accused-appellant and he was convicted by the learned trial Court. The Apex Court found no valid ground for interference with the
order of conviction and dismissed the appeal. In Golakonda (supra) the appellant was last seen together with the deceased. The appellant was
convicted and in appeal the Apex Court found no infirmity in the order. In Goraksha''s case (supra), the son killed his father, step-mother and
step-sister due to demand for partition of family agricultural land and other properties. Before the killing there was continuous quarrel with regard
to division of property between the deceased father and the accused son. Circumstantial evidence in the aforesaid case relied upon by the
appellant-State, prima facie, found to be against the accused-persons due to the factual position that the perpetrators are husband or son of the
deceased and there are other evidence against the accused-husband. The present is not a case of murder confined within the family members. As
discussed earlier, there is no clinching circumstantial evidence for drawing inference or coming to a conclusion that the accused-respondents have
committed or found involved in cases of criminal conspiracy, waging war against the Govt. of India or State of Assam and other crimes attracting
punishment under Sections 120(B)/121/121/153A IPC.
36. There is also no dispute on the settled position of law that conviction in certain cases, could be ordered solely on the testimony of police
officials without even corroborated by evidence of independent witness in material. particulars. But, at the same time, law mandates that the rule of
prudence may require more careful scrutiny of their evidence. We are afraid that the aforesaid principle of law as laid down in Girja Prasad
(supra), could be applied to the present case. In the above cited case, the accused appellant was convicted u/s 4 of the Prevention of Corruption
Act The police, in order to catch the accused red-handed in accepting the bribe, kept two currency notes of 100 Rupee denomination in the
pocket of the complainant duly treated with chemical powder so that the accused could be caught The trap party used chemicals and on analysis of
the chemicals it was, prima facie, found that the accused was involved in taking bribe but the learned trial court, on sympathy, acquitted the
accused. In appeal the High Court concerned set aside the order of acquittal and convicted the appellant in the appeal preferred by the accused.
The Apex Court dismissed the appeal and upheld the conviction order passed by the High Court. In the case at hand, the facts and circumstances
are quite different and no scientific method or technology was applied. The present case is not a case of detection of offering and taking bribe and
there was no occasion for the Investigating Agency to take the help of any scientific method. It is a case of recovery and seizure of foreign
currencies at a public place, and therefore, the prosecution is bound to examine independent witness(s) to seek corroboration of evidence of the
police or official witnesses on the fact of recovery and seizure of such foreign currencies. The prosecution, no doubt, examined some independent
witnesses in the present case but, unfortunately, the independent witnesses viz. PW 2, 4 and 7 did not fully support the prosecution case as
discussed earlier. In our considered view, therefore, decision in the above cited case could not be pressed into service to support the above
submission. The learned Addl. Advocate General persuaded us to accept that PW 2, 4 and 7 are eye witnesses and they have given cogent
evidence corroborating the evidence of official witnesses in material particulars. Relying on the decision in Mohinder Singh (supra) he has also
submitted that evidence of eye witness is of paramount importance and the Court should accept the evidence of independent witnesses, PW 2, 4
and 7 and convict the respondents reversing the order of acquittal. We are bound to repeat that PW 2, 4 and 7 are not eye witnesses to the fact of
taking out the currency notes from the bags/possession of the respondents but only witnesses to preparation of the seizure lists in their presence.
Those independent PWs were not witnesses to the fact of carrying the bag containing the alleged foreign currencies. The above cited case relates
to murder due to enmity where no independent witness was examined by the prosecution. That was a case where, due to some glaring
discrepancies in the prosecution case, the court preferred to discuss the other circumstances produced by the prosecution before considering the
evidence of eye witnesses in the background of those inconsistencies. The court departed from usual practice of giving preference over
appreciating the evidence of eye witnesses. We fail to understand how the learned Addl. Advocate General could put the instant case on the same
footing of above cited case and desires us to adopt the said approach.
37. In Anirudhsing''s case (supra), a sitting MLA was done to death in the public gaze when full ceremonial Independence Day function was in
progress in presence of Deputy Collector, Sub-Divisional Magistrate and other civil and police officers. Some police officers, who were present at
the said function were examined as witnesses. It was held that merely because they are police officers, their evidence can not and must not be
rejected outright as unreliable or unworthy of acceptance. However, it requires to be subjected to earful evaluation like any other witness of
occurrence. There is nothing to dispute on the said proposition of law but having regard to the facts and circumstances of the said case, in our
considered view, the above law would not be made fully applicable to the present case. The learned trial Court considered the merit of the
evidence of independent witnesses and dis-believed the prosecution case. There is no approach made by the trial Court that the evidence should
be rejected as unreliable or unworthy of acceptance merely because they are police officers. We are constrained to say that the facts and
circumstances of the present case are not similar to the ones found in the above cited case.
38. We are, to be frank enough, still far from being satisfied ourselves that the evidence of independent PWs 2, 4, and 7 read with the evidence of
official witnesses PW-8, 10, 11, 13, 14 as submitted by the learned Addl. Advocate General, have proved the charge of possession, recovery and
seizure of foreign currencies from some accused persons, to be precise, from respondent No. 13,4 and 5. Even assuming, although not proved
beyond reasonable doubt, that the said respondents were in possession of foreign currencies and the same were seized from them, in our view, it is
not enough to hold that they were sent/deputed by the ISI with the said money (foreign currencies) as a part of criminal conspiracy to achieve the
greater objective of the ISI to wage war against the Govt. of India through large scale act of sabotage and disturbances by promoting enmity
between different sections of people, more specifically between Muslims and non-Muslims in the State. The vital fact that the accused respondents
have connection or nexus with the ISI has not been proved by any cogent evidence, oral or documentary, far less the fact that they have been
engaged by the ISI. The prosecution has entertained suspicion on the respondents as some of them have been found to be hailing from Pakistan or
Bangladesh and they are not in possession of passport or valid document showing their bona fide or valid reason or purpose to visit India. There is
no doubt that some of the accused-respondents could not give any acceptable explanation as to why they have visited the State of Assam without
any valid document or passport. If it is to be believed that some of the accused respondents were in possession of some incriminating articles and
even foreign currencies, we find it difficult to accept the story of the prosecution that the respondents entered into India or for that matter State of
Assam, for waging war at the instance of ISI or in furtherance of the greater intention of the ISI to destabilize the country. No evidence has been
led by the prosecution that the ISI is the mastermind behind sending of the accused respondents to this country and they have been moving in the
State of Assam with the foreign currency notes and incriminating documents. There is also no evidence adduced by the prosecution that the ISI
hatched criminal conspiracy and as apart of the said conspiracy the ISI sent the respondents to wage war against the Govt. of India or to cause
disturbance and create communal tension in Indian society and the said respondents have been engaged to achieve the ISIs nefarious design. There
is no substantial evidence proving the link of the accused respondents with the ISI and they have been present in Assam to execute the criminal
conspiracy for attaining the greater aim at waging war against India.
39. The charge of Section 120B relates to punishment for committing offence of criminal conspiracy. In order to prove the charge of criminal
conspiracy the prosecution has to establish that there was an agreement between the accused persons to do or cause to be done an illegal act or
an act which is not illegal by illegal means. Law requires that there must be a meeting of minds. In the present case the accused respondents belong
to different places, some of them even doubted to be citizens of Pakistan and Bangladesh. The prosecution led no evidence, direct or indirect,
establishing the meeting of minds on the basis of which court can draw inference that they had come to Assam with a meeting of mind to carry out
the object of the ISI. In this regard we may refer to John Pandian Vs. State Rep. by Inspector of Police, T. Nadu, , wherein it has been held that
merely because accused has some things in his possession, possession of which he fails to explain, cannot be presumed to be outcome of an
offence. So also some recovery of money would be of no consequence unless the prosecution comes out with a case and gives some prima facie
evidence that the cash amount was a part of money that had a nexus with conspiracy. It was further held that staying together in hotel and travelling
together from one place to another with unexplained money and articles cannot be a basis for conviction ladder Section 120B. The above cited
case relates to a murder case, yet we are of the opinion that principle of law as laid down in the said case, so far it relates to charge of criminal
conspiracy u/s 120B IPC, would be applicable.
40. Section 121A IPC provides punishment for committing offences against the State u/s 121 i.e. waging, or attempting to wage war, or abetting
waging of war, against Govt., of India. For better appreciation, we refer ourselves to Mohd. Arif @ Ashfaq Vs. State of NCT of Delhi, . It is held
therein that in such case involvement of more than one person, apart from meeting of minds, commission of crime must be proved. In other words,
unless there was a planning and participation of more than one person, the conspiracy of waging war against the State would not be possible. It
was a case of terrorist attack on army at Red Fort, New Delhi, with well planned conspiracy winch was given effect to after collecting a large
quantity of arms and ammunitions. The Pakistani terrorists, in the said case, for execution of nefarious plan, entered in the guise of watching a show
in the Red Fort and while doing so they supplied arms inside the Red Fort and it was after the show, taking ad vantage of darkness, they started
shooting in which they killed the sentry and then other two persons who were soldiers and then taking further advantage of the darkness, they
scaled over fee wall and fled That was indeed a pre- planned attack shocking the conscience of the entire nation and the community. In the present
case the prosecution could not even, prima facie, show, not to speak of bringing home, that there was a definite plan prepared by the respondents
in carrying out such attack on fee defence personnel or destroy public installations or institutions as part of greater design/plan to wage war against
India. No material is found that any act was done by the accused respondents against the State within the meaning of Section 121 IPC making the
respondents liable to be convicted u/s 121A IPC.
41. Charge u/s 153A IPC provides punishment for promoting enmity between different groups of religions, race, place of birth, residence,
language etc. or doing acts prejudicial to maintenance of peace and harmony.
42. We have noticed that the I.O., PW 14, collected materials against the accused-respondents from various sources including the cases already
registered against them inside and outside the State of Assam and in the course of investigation he had taken much pain to contact the police
stations and officers concerned and collected informations regarding seizure of incriminating articles to make out a case of criminal conspiracy,
waging war against the country etc. All these charges are serious enough and the Investigating Agency is expected to take more care and
seriousness in collecting the materials and proofs. We have noticed that the Investigating Agency was guided by emotion and surmises in collecting
the materials without taking due care that the charges must be proved beyond reasonable doubt. The accused persons, as per the official
witnesses, particularly PW 14, have been staying in various hotels and were moving in Guwahati in a suspicious manner with US dollars and
Bangladeshi currencies and objectionable articles attracting the attention of the local police but it is not enough to hold them agents of the ISI. The
prosecution, no doubt, have been able to establish at least two accused persons as foreign nationals as they failed to produce passport and/or
necessary valid documents authorising their presence in India but that alone is not sufficient to hold them that they entered India with criminal
conspiracy and intention to wage war against the Govt. of India through disruptive and subversive activities and spreading communal hatred and
promoting enmity amongst different groups on grounds of religion, race etc. We are not satisfied that the accused respondents individually or
collectively, had done or carried out activities attracting the offence under Sections 120(B)/121/121(A)/122/124A/153(A)/34 IPC at the instance
of or dictation of the ISI. We are also not satisfied that the prosecution has been able to prove the link or nexus of the accused-respondents with
the ISI whose professed aim is to destabilise the Indian society and overthrow the Govt., by waging war. Much has already been discussed in this
regard and it needs no further discussion.
43. In the appreciation of evidence and on consideration of materials on record, we are fully satisfied that the prosecution miserably failed to
establish the charges against the accused-respondents under Sections 120(B)/121/121(A)/122/124A/153(A)/34 IPC beyond all shades of
reasonable doubt as required in the criminal trial. We find no infirmity, error or illegality in the judgment and order in acquitting the accused-
respondents under the aforesaid Sections of law, which is under challenge in this appeal, requiring interference by this Court and reversing the
order of acquittal to conviction as demanded by the appellant-State.
44. In view of the above, we express our agreement with the findings and conclusion arrived at by the learned trial Court and, without any
hesitation, uphold the order of acquittal under Sections 120(B)/121/121(A)/122/124A/153(A)/34 IPC and also the order of conviction of
accused-respondents No. 2 and 3 u/s 14 of the Foreigners Act, 1946. Appeal stands dismissed. Return the LCR forthwith.
