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Reportable  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1155 OF 2014 (Arising out of S.L.P. (Crl.) 4419 of 2009)

Chandra Prakash … Appellant

Versus

State of Rajasthan …Respondent

WITH

CRIMINAL APPEAL NOS.1156-1157 OF 2014 (Arising out of S.L.P. (Crl.) 3524-3525 of 2010)

Abdul Hamid and another …  Appellants

Versus

State of Rajasthan …Respondent

With

CRIMINAL APPEAL NO. 1160 OF 2014 (Arising out of S.L.P. (Crl.) Nos. 4105 of 2014  

CRLMP 22781/2012)

Abdul Mateen … Appellant

Versus

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State of Rajasthan …Respondent

J U D G M E N T

Dipak Misra, J.

On  26th January,  1996,  a  day  of  celebration  and  

conscientious remembrance of the “Red Letter Day” in the  

history of  India  because 26th January is  the date in  1950,  

when  our  organic,  inclusive,  humane  and  compassionate  

Constitution came into existence being given by the people  

of  this  country  to  themselves  and  the  nation  has  been  

obliged to jubilate remembering the said important day in  

our national  history,  for  it  chartered the path of many an  

emancipation  and  conferred  on  the  people  the  highly  

cherished fundamental rights; about 8.30 a.m., there was a  

blast of explosive substances between Gate No.12 and Gate  

No. 13, towards the southern and eastern side of Sawai Man  

Singh  Stadium  Jaipur,  where  the  State  level  function  on  

Republic Day was going to be celebrated.  Soon after the  

blast, Prahlad Singh, the Station House Officer, Police Station  

lodged an FIR about 9.30 a.m. which was registered as FIR

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No. 39/1996.  As per the FIR, when the blast took place, the  

people who had assembled were asked to leave the stadium  

so that there could be a check.  During the check, it was  

found that due to the blast, a big size crater had come into  

existence at the scene of explosion.  That apart, by the said  

explosion, the sand hopped upward and fell  on the places  

meant for sitting in the stadium and also on the roof. The  

glasses of the windows of the pavilion near  the explosion  

had broken into pieces. At the time when the explosion had  

occurred, only police personnel but no civilians were present  

in that part of the stadium. The public at large, which was  

present  inside  the  Stadium,  was  informed  to  leave  the  

Stadium so that the check and security could be carried out.  

Due to the sound caused by the explosion, one Ramgopal  

Choudhary,  an employee of the Public Works Department,  

who was passing nearby, had met with an injury on his ear  

for which he was immediately sent to the hospital.  On the  

basis  of  the  FIR,  offences  under  Section  120-B  read  with  

Sections 307 and 427 IPC, under Section 3 of the Prevention  

of Damage to Public Property Act, 1984 and under Section 3

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of the Explosive Substances Act, 1908 (for short “the 1908  

Act”) and also under Section 9B of the Explosive Act, 1884  

(for  brevity  “the  1884  Act”)  were  registered  and  the  

investigation commenced. Later on, the investigation of the  

case was transferred to C.I.D(C.B.).  

2. During  the  investigation,  an  anonymous  letter  in  Urdu  

language  dated  1st June,  1997  was  sent  to  the  

Superintendent of Police, wherein some information was  

given which was alleged to have been gathered by the  

senders who described themselves as well wishers while  

they were in custody in the Central Jail, Jaipur, in respect  

of the bomb-blast that took place on 26th January, 1996 at  

the  SMS  Stadium,  Jaipur.   In  that  letter,  the  names  of  

some persons, i.e., Raies Beg of Agra, Dr. Abdul Hamid of  

Firozabad and Pappu Puncturewala  were mentioned.   It  

was also mentioned that the ISI of Pakistan was behind  

the bomb-blast.   On the basis of the said information, the  

investigating officer arrested five persons, namely, Abdul  

Hamid,  Raies Beg,  Abdul  Mateen,  Pappu @ Saleem and  

Chandra Prakash on various dates.    

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3. During  the  investigation,  the  investigating  agency  

recovered  a  live  time  bomb  from  SMS  Stadium  and  

explosive  items  were  recovered  from Roopwas,  District  

Bharatpur.   In  the  course  of  the  investigation,  accused  

Pappu @ Saleem filed an application under Section 306 of  

the Code of Criminal Procedure (for brevity “the Code”)  

before the Chief Judicial Magistrate on 14.8.1997 who, by  

order  dated  30.8.1997,  authorized  the  Additional  Chief  

Judicial Magistrate No. 6 to record the statement of the  

said  accused  under  Section  164  of  the  Code  and  

thereafter,  the  Chief  Judicial  Magistrate,  by  a  reasoned  

order  dated  20.9.1997,  allowed  the  application.   After  

carrying out the detailed investigation, the police laid the  

charge-sheet  against  the  arrested  accused  persons,  

namely, Chandra Prakash, Abdul Mateen, Raies Beg and  

Abdul Hamid.

4. All  the  accused  persons  abjured  guilt,  pleaded  false  

implication and, accordingly, faced trial.

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5. The learned trial Judge framed different charges against  

the four accused persons and we think that it would be  

apt to refer to the charges framed against each of them.  

As far as Chandra Prakash is concerned, the charges that  

were framed against him were under Section 9B of the  

1884 Act and under Sections 3, 4, 5 read with Section 6 of  

the 1908 Act.  As far as Abdul Mateen is concerned, he  

was charged with the offences under Section 14 of  the  

Foreigners Act,  1946,  under Sections 3,  4 and 5 of the  

1908 Act, under Section 9B of the 1884 Act, under Section  

3 of the Prevention of Damages to Public Properties Act  

and under Sections 307, 118, 435 and 456 IPC.  As far as  

Raies  Beg  and  Abdul  Hamid  are  concerned,  they  were  

faced with similar charges, namely, under Section 9B of  

the 1884 Act, under Sections 3, 4 and 5 read with Section  

6 of the 1908 Act and under Sections 307/120B, 118/120B  

and 435/120B IPC.

6. To bring home the charges against the accused persons,  

the prosecution examined as many as 78 witnesses and

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brought on record exhibits P-1 to P-296.  In defence, no  

witness was examined on behalf  of  any of  the accused  

persons.  However, documentary evidence was produced  

by them, i.e., exhibits D-1 to D-5.  We shall refer to the  

relevant  parts  of  the  testimonies  of  the  vital  witnesses  

and advert to the documents which have been stressed  

and emphasized upon by the prosecution at a later stage.

7.  The accused persons in their statements under Section  

313  of  the  Code  took  separate  plea  and  hence,  it  is  

obligatory on our part to record their pleas individually.  

Abdul Mateen admitted that he is a Pakistani and he had  

remained as a Pakistani always; that he had never come  

to India before his arrest; that he did not know any person  

in India; that he never visited the places, namely, Jaipur,  

Farah,  Roopwas,  Agra  Firozabad  or  any  other  city;  and  

that he had never given any information to the police and  

no recovery was made by the police at his instance and  

he  had  never  identified  any  place.  The  plea  of  Abdul  

Hamid  was  that  he  never  gave  any  information  to  the

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police during the investigation of the case and he did not  

furnish any information about the shop of Mohit Jain, PW-  

30, situated at Delhi and he had been falsely implicated.  

Raies Beg took the plea that due to communal riots he  

had been falsely booked in the crime. Accused Chandra  

Prakash,  apart  from  false  implication,  denied  any  

relationship  with  Pappu  @  Saleem,  PW-1,  and  further  

stated that no key was recovered from him and he did not  

open any godown and room with his keys.  He also took  

the stand that he had not taken any room on rent in Krishi  

Upaz Mandi or any shop near the power house on rent and  

disputed  the  recovery  from  any  shop.  The  trial  court,  

appreciating  the  oral  and  documentary  evidence  on  

record,  by  its  judgment  and order  dated 22.04.2000  in  

Sessions  Case  no.  8/98,  convicted  all  the  accused  and  

sentenced  all  of  them individually  in  respect  of  all  the  

specific  charges  framed  against  them.  The  offence  for  

which  each  of  them  had  faced  trial  has  been  already  

mentioned  hereinabove.  All  the  accused  had  been  

sentenced separately by the learned trial Judge.  

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8. Accused  Abdul  Mateen  was  sentenced  to  undergo  five  

years rigorous imprisonment and a fine of Rs.10,000/-, in  

default of payment of fine to further undergo one year’s  

simple imprisonment under Section 14 of the Foreigners  

Act;  ten  years  rigorous  imprisonment  and  a  fine  of  

Rs.20,000, in default to further undergo two years’ simple  

imprisonment  under  Section  4  of  the  Prevention  of  

Damages  to  Public  Property  Act;  three  years  rigorous  

imprisonment and a fine of Rs.3,000/-, in default to further  

undergo six months’ simple imprisonment under Section  

456 IPC; to undergo ten years rigorous imprisonment and  

a  fine of  Rs.10,000/-,  in  default  to  further  undergo two  

years’ simple imprisonment under Section 307 read with  

Section 120B IPC; seven years rigorous imprisonment and  

a fine of Rs.7,000/-, in default to further undergo one and  

half years’ simple imprisonment under Section 435 read  

with Section 120B IPC; five years rigorous imprisonment  

and a fine of Rs.5,000/-, in default to further undergo one  

year’s simple imprisonment under Section 118 read with

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Section 120B IPC; two years rigorous imprisonment and a  

fine  of  Rs.2,000/-,  in  default  to  further  undergo  three  

months’  simple  imprisonment  under  Section  9B  of  the  

1884 Act; imprisonment for life and a fine of Rs.20,000/- in  

default  to  further  undergo  three  years’  simple  

imprisonment  under  Section  3  of  the  1908  Act;  seven  

years rigorous imprisonment and a fine of Rs.7,000/-, in  

default  to  further  undergo  one  and  half  years’  simple  

imprisonment under Section 4 of the 1908 Act; and five  

years rigorous imprisonment and a fine of Rs.5,000/-, in  

default to further undergo one year’s simple imprisonment  

under Section 5 of the 1908 Act.

9. Accused Chandra Prakash was sentenced to undergo two  

years rigorous imprisonment and a fine of Rs.2,000/-, in  

default  to  further  undergo  three  months’  simple  

imprisonment under Section 9B of the 1884 Act; ten years  

rigorous imprisonment and a fine of Rs.10,000/-, in default  

to further undergo two years’ simple imprisonment under  

Section 3 read with Section 6 of the 1908 Act; seven years

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rigorous imprisonment and a fine of Rs.7,000/-, in default  

to  further  undergo  one  and  half  years’  simple  

imprisonment under Section 4 read with Section 6 of the  

1908 Act; and five years rigorous imprisonment and a fine  

of  Rs.5,000/-,  in  default  to  further  undergo  one  year’s  

simple imprisonment under Section 5 read with Section 6  

of the 1908 Act.

10. Accused Abdul Hamid and Raies Beg were sentenced to  

undergo two years rigorous imprisonment and a fine of  

Rs.2,000/-,  in  default  to  further  undergo  three  months’  

simple  imprisonment;  ten  years  rigorous  imprisonment  

and a fine of Rs.10,000/-, in default to further undergo two  

years simple imprisonment under Section 307 read with  

Section 120B IPC; seven years rigorous imprisonment and  

a fine of Rs.7,000/-, in default to further undergo one and  

half years’ simple imprisonment under Section 435 read  

with Section 120B IPC; five years rigorous imprisonment  

and a fine of Rs.5,000/-, in default to further undergo one  

year’s simple imprisonment under Section 118 read with

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Section 120B IPC; ten years rigorous imprisonment and a  

fine  of  Rs.10,000/-,  in  default  to  further  undergo  two  

years’  simple  imprisonment  under  Section  3  read  with  

Section  6  of  the  1908  Act;  seven  years  rigorous  

imprisonment and a fine of Rs.7,000/-, in default to further  

undergo one and half years’ simple imprisonment under  

Section 4 read with Section 6 of the 1908 Act; and five  

years rigorous imprisonment and a fine of Rs.5,000/-, in  

default to further undergo one year’s simple imprisonment  

under Section 5 read with Section 6 of the 1908 Act.

11. At  this  juncture,  we think it  appropriate to  state  the  

findings recorded by the learned trial Judge against each  

of the accused.  As far as Abdul Mateen is concerned, the  

trial court held that it was clear from the evidence of GPS  

Wirk,  PW-69,  Assistant  Commander,  BSF,  that  Mhd.  

Ashlam  Baba  was  the  financial  head  of  a  terrorist  

organization by the name of “Harkat-ul-Ansar”, and during  

the  course  of  investigation,  the  accused  Abdul  Mateen  

was arrested from Srinagar and no passport or visa was

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found  in  his  possession.  The  offence  punishable  under  

Section 14 of the Foreigners Act which had been levelled  

against  him  was  established  beyond  reasonable  doubt.  

The  live  time  bomb  was  duly  recovered  and  accused  

Abdul Mateen had exclusive knowledge and it was he who  

planted the time bomb at that place and it was proven  

from the testimonies of the witnesses.  From the evidence  

of the approver, Pappu, and the information under Section  

27 of the Evidence Act, it could be concluded that prior to  

26.1.1996, two time bombs were implanted by accused  

Abdul  Mateen.   It  was clear  from the testimonies of Jai  

Narayan, PW-6, and Gopal Saini, PW-7, that Abdul Mateen  

had led to the recovery of the bomb and the charge of  

crime punishable under Section 9B of the Explosive Act  

levelled  against  the  accused  Abdul  Mateen  has  been  

proved beyond reasonable doubt.

12. In respect of Raies Beg and Abdul Hamid, the trial court  

held that Abdul Hamid had been visiting accused Chandra  

Prakash at Roopbas quite frequently and both the accused

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persons  had  helped  accused  Abdul  Mateen  in  the  

commission of  the  offence.   They used to  meet  at  the  

Madarsa of village Farah and the conspiracy was hatched.  

The learned trial Judge came to hold that the involvement  

of  the  said  accused  persons  in  the  commission  of  the  

crime  was  reflectible  from  the  evidence  of  number  of  

witnesses and the prosecution had established their role  

beyond any shadow of doubt.

13. Pertaining  to  Chandra  Prakash,  the  Court  held  that  

explosive  substances  including  gelatin  and  dynamite  in  

huge  quantity  were  recovered  from  his  possession  on  

1.8.1997.   Scanning  the  evidence,  it  recorded  that  the  

dynamite was used in both the bombs.  He further opined  

that  Pappu  @  Saleem,  PW-1,  was  an  associate  and  

colleague  of  accused  Abdul  Mateen  and  prior  to  the  

incident,  the  explosive  substance  was  brought  from  

Chandra Prakash in village Farah, where Pappu @ Saleem  

used to live with him.  That apart, Chandra Prakash was  

identified by Pappu and the key of the godown was with

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the accused and he opened the lock of the said godown  

from  which  28  kattas  of  ammonium  nitrate  were  

recovered.   It  was  also  clear  from  the  evidence  of  

Chetandass Rawatani, PW-34, that the goods which were  

recovered  from  the  accused  were  utilized  for  the  

preparation of the explosive substance.   

14. On the basis of the aforesaid findings and conclusions,  

the learned trial Judge convicted the accused persons and  

sentenced them as has been stated hereinbefore.

15. Being grieved by the aforesaid conviction and sentence,  

the  accused persons  preferred  separate  appeals  before  

the High Court being D.B. Criminal (Jail) Appeal No. 318 of  

2000, D.B. Criminal Appeal Nos. 189 of 2000, 258 of 2000  

and 369 of 2000.  The State filed application for grant of  

leave (D.B. Criminal Leave to Appeal No. 26 of 2008) with  

an application for condonation of delay of seven years and  

nine months which was taken up along with the appeals  

preferred by the accused persons and the said appeal was  

dismissed on the ground of delay.  However,  it  may be

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stated  here  that  the  High  Court  also  addressed  to  the  

merits  of  the  case  of  the  State  which  pertained  to  

enhancement of sentence and did not find any substance  

in  the same.   As  regards the appeals  preferred by the  

accused persons, the appellate court did not perceive any  

merit  and,  resultantly,  dismissed  the  same  by  way  of  

judgment and order dated 3.2.2009.  Hence, the assail is  

to the judgment of conviction and order of sentence by  

the applications of special leave petitions.

16.  Leave granted in all the special leave petitions.

17. As  all  the  appeals  relate  to  defensibility  of  common  

judgment passed by the High Court in respect of all the  

accused-appellants,  they  are  disposed  of  by  a  singular  

judgment.

18. Mr.  Sushil  K.  Jain,  learned  senior  counsel  for  the  

appellants, criticizing the judgment of the trial court and  

that  of  the  High  Court,  has  raised  the  following  

contentions: -

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(a) The  learned  trial  Judge  as  well  as  the  High  Court  

committed  grave error by coming to hold that sanction  

given under Section 7 of the 1908 Act cannot be found  

fault  with, though the District Magistrate, Jaipur was not  

examined as a witness to prove the order of sanction.

(b) The  recovery  made  from  the  appellant,  Chandra  

Prakash,  at  the instance of  information given by Pappu  

would not be admissible in evidence because at the time  

of giving information, Pappu was an accused and had not  

been treated as an approver which was done later on by  

virtue of  the order  of  the Court.   The testimony of  the  

approver is not creditworthy since he has deposed that he  

was not aware about the contents of the box that he was  

asked to carry by the other accused persons.   

(c) The  alleged  recovery  of  ammonium nitrate  from the  

custody  of  accused,  Chandra  Prakash,  either  at  the  

instance of Pappu @ Saleem, PW-1,  or  by the accused-

appellant cannot be accepted  because Pappu @ Saleem,  

PW-1  is  an  accomplice  and  in  absence  of  any

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corroboration,  his evidence has to be thrown overboard  

and further the case of prosecution that at the instance of  

the  accused  articles  were  discovered  is  to  be  rejected  

inasmuch as Section 27 of the Evidence Act, 1872 could  

not have been made applicable to the facts of the present  

case, for Chandra Prakash had not been arrested by the  

time the alleged discovery took place.

(d) Assuming the ammonium nitrate was recovered from  

the  custody  of  Chandra  Prakash,  the  same  would  not  

make  out  any  offence  punishable  under  any  of  the  

provisions of the 1908 Act or the 1884 Act, for the simple  

reason  that  it  does  not  come  under  the  statutory  

definition. Even if the language of Sections 2 and 3 of the  

1908  Act  as  well  as  Section  9B  of  the  1884  Act  are  

stretched, it would not bring in its sweep the simple act of  

sale  by  Chandra  Prakash  without  any  intention  or  

knowledge about its use.  

(e) No  independent  charges  were  framed  against  the  

accused-appellant under Sections 3, 4 and 5 of the 1908

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Act  but  along  with  Section  6  of  the  1908  Act  and,  

therefore, conviction under the said provision is absolutely  

fallacious.  

19. Mr. Balaji Srinivasan, learned counsel appearing for the  

appellants,  Abdul  Hamid  and  Raies  Beg,  submitted  as  

under:-

(A) The prosecution has failed to prove the nexus of the  

accused-appellants with the co-accused Abdul Mateen  

in the crime and nothing has been brought on record to  

establish  the allegations.  The only  evidence that  has  

been    recorded  is  that  Abdul  Hamid  used  to  meet  

Abdul Mateen frequently at village Farah.

(B) There  is  no  recovery  of  explosive  substance  or  any  

incriminating materials from the appellant’s house and in  

the  absence  of  any  recovery,  the  appellant  cannot  be  

roped in the crime.

(C) The  allegation  of  the  prosecution  with  regard  to  the  

relation of the appellant with Abdul Mateen does not have

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any  substance  and,  in  any  case,  there  is  no  proof  to  

establish the same.

(D) The bomb blast at SMS Stadium, Jaipur took place on  

26.01.1996 and the accused was arrested on 8.06.1997  

and identification parade was conducted on 25.06.1997  

about one and half years after the incident. This aspect  

vitiates the identification parade and creates a dent in the  

case of the prosecution for which the appellants should be  

given the benefit of doubt.

20. Mr.  Atul  Kumar,  learned  counsel  appearing  for  the  

appellant  Abdul  Mateen,  in  addition  to  the  contentions  

raised by Mr. Jain and Mr. Balaji, has contended that no  

consent has been taken under Section 7 of the 1908 Act  

from the Central Government and hence, the entire trial is  

vitiated.

21. Dr.  Manish  Singhvi,  learned  Additional  Advocate  

General appearing for the State of Rajasthan, supporting

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the judgment of the High Court, has submitted as follows:  

-

(i) The  sanction  given  by  the  District  Magistrate,  on  a  

perusal,  would  show  application  of  mind  and,  by  no  

stretch of imagination, it can be regarded as invalid in  

law.

(ii) The  recovery  at  the  instance  of  an  accused  under  

Section 27 of the Indian Evidence Act is admissible in  

evidence and the  information  given by  Pappu,  PW-1,  

which led to the recovery of huge quantity of explosives  

would  per  se  be  admissible  in  evidence  and  this  

evidence is  not  to  be treated as inadmissible merely  

because the accused at the relevant point of time had  

subsequently become the approver.

(iii) The  recovery  of  explosives  by  the  accused,  Chandra  

Prakash, by opening the keys of the godown would be a  

relevant  fact  and  admissible  under  Section  8  of  the  

Evidence Act, irrespective of the fact that the conduct

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falls within the purview of Section 27 of the Evidence  

Act.

(iv) The  recovery  of  the  explosive  substance  has  been  

made  by  the  police  vide  memo  Ex.  P-42  during  the  

search and seizure operations.  Chetan Das Rawatani,  

PW-34, Explosive Expert,  has stated that the articles  

recovered in Ex. P-42 were explosive articles and the  

same has also been proved by the FSL Report, Ex. P-

234.  

(v) The  evidence  of  the  approver  Pappu,  PW-1,  is  

admissible  as  substantive  evidence  u/s  133  of  the  

Evidence Act.  In the evidence of the approver,  it  has  

been  mentioned  that  the  accused,  Chandra  Prakash,  

was engaged in the supply of materials for solicitation  

of money for the commission of offence under the 1908  

Act. Possession of huge quantity of ammonium nitrate  

without  any  plausible  explanation  by  the  accused,  

Chandra  Prakash,  corroborates  the  evidence  of  the  

approver.     

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23

22. First, we shall deal with the issue of sanction.  Section 7  

of the 1908 Act reads as follows: -

“7. Restriction on trial of offences. – No Court  shall  proceed  to  the  trial  of  any  person  for  an  offence against this Act except with the consent of  the District Magistrate.”

23. The learned counsel  for  Abdul  Mateen has submitted  

that  no  consent  has  been  granted  by  the  Central  

Government.  In this context, we may refer to the decision  

in State of M.P. v. Bhupendra Singh1.  In the said case,  

the  consent  for  the  prosecution  was  granted  by  the  

Additional  District  Magistrate  by  notification  dated  

24.4.1995  issued  by  the  State  Government.   The  High  

Court  has  quashed  the  proceeding  as  there  was  no  

sanction.  This Court concurred with the said view on the  

ground  that  it  was  within  the  domain  of  the  Central  

Government  to  delegate  the  authority  and,  in  fact,  the  

Central Government vide notification dated 2.12.1978 has  

entrusted  to  the  District  Magistrates  in  the  State  of  

Madhya Pradesh its consent under Section 7 of the 1908  

1 (2000) 1 SCC 555

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Act.   Thus,  there  could  be  delegation  by  the  Central  

Government to the District Magistrates.

24. It is relevant to note here that the consent was given by  

the concerned District Magistrate as Ext. P-277/278.  His  

authority was not questioned.  What was urged before the  

Court  was  that  there  had  been  no  application  of  mind  

inasmuch  as  the  relevant  materials  were  not  placed  

before him while according sanction.  When such a point  

was not raised, the consequences have to be different.  In  

this  regard,  reference to a two-Judge Bench decision in  

Erram Santosh Reddy and others v. State of Andhra  

Pradesh2 would  be appropriate.   In  the  said  case,  the  

Court has observed as follows: -

“7. The last  submission is  that  no sanction was  obtained  from  the  Central  Government  as  laid  down under Section 7 of the Explosive Substances  Act for prosecuting the appellants for the offences  under  the  Explosive  Substances  Act.  From  the  judgment we do not find that any such objection  was taken. In any event from the record we find  that  the  Collector  granted  permission  and  this  must be pursuant to the delegation of powers as  contemplated under Section 18(2) of the ‘TADA’.”

2 (1991) 3 SCC 206

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25. From the aforesaid, we come to the conclusion that the  

District Magistrate had the authority to give consent for  

the prosecution.

26. The next facet of the challenge pertaining to sanction is  

that  the  sanctioning  authority  had  not  perused  the  

relevant materials.  The learned trial Judge, upon scrutiny  

of  Ext.  P-277/278,  has  expressed  the  opinion  that  the  

approval had been granted after perusal of the materials  

on  record.   The  High  Court  has  observed  that  the  

consent/sanction  order  is  a  self-speaking  and  detailed  

one.  It has also been held that all the facts have been  

taken into consideration by the District Magistrate and the  

entire police diary was made available to him at the time  

of grant of sanction/approval.  With regard to the authority  

of  consent  as  postulated  in  the  1908  Act,  reference to  

certain authorities would be fruitful.  In  State of Tamil  

Nadu  v.  Sivarasan alias Raghu alias Sivarasa and  

others3, the Court, while dealing with the effect of Section  

7 of the 1908 Act, has observed as follows: - 3 (1997) 1 SCC 682

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“Section 7 does not  require  a sanction but  only  consent  for  prosecuting  a  person  for  an  offence  under the Explosive Substances Act.  The object of  using the word “consent” instead of “sanction” in  Section  7  is  to  have  a  purely  subjective  appreciation  of  the  matter  before  giving  the  necessary consent.”

27. Thereafter, the Court proceeded to state as follows: -

“We do not think that for obtaining consent of the  Collector  for  prosecuting  the  accused  for  the  offence  punishable  under  the  Explosive  Substances  Act  it  was  necessary  for  the  investigating officer  to  submit  the statements of  witnesses  also,  who  had  deposed  about  the  movements  of  the  accused and  their  activity  of  manufacturing  bombs  and  grenades.   We,  therefore,  hold  that  the  consent  given  by  the  Collector was quite legal and valid.”

28. In view of the aforesaid, the approval/consent granted  

by the District Magistrate in the obtaining factual matrix  

cannot be treated as vitiated.

29. The third aspect of challenge to the sanction is that the  

District Magistrate has not been examined as a witness to  

prove  the  order  of  sanction.   On  a  perusal  of  the  

document, we find that the same has been proven by the  

competent person and the document has been marked as  

Ext. P-277/278.  We are of the considered opinion that the

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27

examination of the District Magistrate to prove his consent  

is really not necessary.

30. In  view  of  the  aforesaid  analysis,  the  submission  

relating to the invalidity of the consent, as stipulated in  

Section 7 of  the 1908 Act,  does not  commend us  and,  

accordingly, the same stands rejected.

31. The next issue, to which we should advert to, pertains  

to the delay in holding the test identification parade.  The  

submission  of  Mr.  Balaji  Srinivasan,  learned  counsel  

appearing for accused Abdul Hamid and Raies Beg, is that  

there  has  been  enormous  delay  in  conducting  the  test  

identification parade in respect of accused Abdul Hamid  

and Raies Beg.   There is  no dispute that  both of  them  

were  arrested  on  8.6.1997  and  the  test  identification  

parade was held on 25.6.1997.  Thus, it  is evident that  

they were arrested long after the occurrence but the test  

identification  parade  was  held  within  a  period  of  three  

weeks from the date of arrest.  As the analysis of the trial  

court  shows,  they could not have been arrested as the

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materials could not be collected against them and things  

got changed at a later stage.  In this regard, we may refer  

with  profit  to  the  decision  in  Ramanand Ramnath  v.  

State of M.P.4,  wherein identification parade was held  

within a period of one month from the date of arrest.  This  

Court observed that there was no unusual delay in holding  

the test identification parade.

32. That apart, the witnesses, namely Prem Prakash Gupta,  

PW-78, and Mohit Jain, PW-30, have identified them in the  

Court.  In State of Maharashtra v. Suresh5, it has been  

held as follows: -

“We remind ourselves that identification parades  are  not  primarily  meant  for  the  court.  They  are  meant  for  investigation  purposes.  The  object  of  conducting a test identification parade is twofold.  First  is  to  enable  the  witnesses  to  satisfy  themselves that the prisoner whom they suspect is  really  the  one  who  was  seen  by  them  in  connection  with  the  commission  of  the  crime.  Second is  to  satisfy  the investigating authorities  that  the  suspect  is  the  real  person  whom  the  witnesses  had  seen  in  connection  with  the  said  occurrence.”

4 (1996) 8 SCC 514 5 (2000) 1 SCC 471

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33. The  said  legal  position  has  been  reiterated  in  Anil  

Kumar  v.  State of U.P.6  Recently, in  Munna Kumar  

Upadhyay  alias  Munna  Upadhyaya  v.  State  of  

Andhra  Pradesh  through  Public  Prosecutor,   

Hyderabad, Andhra Pradesh7,  a two-Judge Bench has  

observed thus: -

“66. There  was  some  delay  in  holding  the  identification parade. But the delay per se cannot  be fatal to the validity of holding an identification  parade,  in  all  cases,  without  exception.  The  purpose of the identification parade is to provide  corroborative evidence and is more confirmatory  in its nature. No other infirmity has been pointed  out  by  the  learned  counsel  appearing  for  the  appellant,  in  the  holding  of  the  identification  parade.  The  identification  parade  was  held  in  accordance  with  law  and  the  witnesses  had  identified the accused from amongst a number of  persons who had joined the identification parade.”

34. In view of the aforesaid, the submission that there has  

been delay in holding the test identification parade does  

not really affect the case of the prosecution.   It  is  also  

noteworthy that the witnesses had identified the accused  

persons  in  court  and  nothing  has  been  elicited  in  the  

6 (2003) 3 SCC 569 7 (2012) 6 SCC 174

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cross-examination even to create a doubt.  Thus, we repel  

the  submission  advanced  by  the  learned  counsel  for  

accused Abdul Hamid and Raies Beg.

35. The  next  facet  to  be  addressed  is  whether  the  

evidentiary value of the testimony of approver Pappu, PW-

1, is required to be considered.  Learned counsel for the  

State  has  drawn  our  attention  to  Section  133  and  

illustration (b) to Section 114 of the Indian Evidence Act,  

1872.  They read as under: -

“133.  Accomplice  .- An  accomplice  shall  be  a  competent  witness  against  an  accused  person;  and a conviction is  not illegal  merely because it  proceeds upon the uncorroborated testimony of an  accomplice."

Illustration (b) to Section     114   

“(b) The Court may presume that an accomplice is  unworthy  of  credit,  unless  he  is  corroborated  in  material particulars.”

36. The aforesaid two provisions came to be considered in  

Bhiva Doulu Patil  v.  State of Maharashtra8 wherein  

the Court held as follows: -

8 AIR 1963 SC 599

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“The  combined  effect  of  Sections 133 and  Illustration  (b)  to  Section 114,  may  be  stated  as  follows:

According to the former, which is a Rule of  law, an accomplice is competent to give evidence  and  according  to  the  latter,  which  is  a  Rule  of  practice it is almost always unsafe to convict upon  his  testimony  alone.  Therefore,  though  the  conviction of an accused on the testimony of an  accomplice  cannot  be  said  to  be  illegal  yet  the  courts will, as a matter of practice, not accept the  evidence of such a witness without corroboration  in material particulars.”

37. In  Mohd.  Husain  Umar  Kochra  etc.  v.  K.S.  

Dalipsinghji  and  another  etc.9, the  Court  observed  

thus: -

“... The combined effect of Sections 133 and 114,  Illustration (b) is  that though a conviction based  upon accomplice evidence is legal, the Court will  not accept such evidence unless it is corroborated  in  material  particulars.  The  corroboration  must  connect  the  accused  with  the  crime.  It  may  be  direct  or  circumstantial.  It  is  not  necessary  that  the  corroboration  should  confirm  all  the  circumstances of the crime. It  is sufficient if  the  corroboration  is  in  material  particulars.  The  corroboration  must  be  from  an  independent  source.  One  accomplice  cannot  corroborate  another.”

9 (1969) 3 SCC 429

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38. Having  stated  the  legal  position  with  regard  to  the  

statutory  provisions,  presently  we  shall  proceed  to  

consider the requisite tests to be applied to accept the  

credibility  of  the  testimony  of  the  approver.   At  this  

juncture,  we  may  sit  in  a  time  machine  and  quote  a  

passage from Sarwan Singh S/o Rattan Singh v. State  

of Punjab10 wherein it has been held as follows: -

“...An  accomplice  is  undoubtedly  a  competent  witness under the Indian Evidence Act. There can  be, however, no doubt that the very fact that he  has participated in the commission of the offence  introduces  a  serious  stain  in  his  evidence  and  Courts  are  naturally  reluctant  to  act  on  such  tainted  evidence  unless  it  is  corroborated  in  material  particulars  by  other  independent  evidence. It would not be right to expect that such  independent corroboration should cover the whole  of the prosecution story or even all  the material  particulars.  If  such  a  view  is  adopted  it  would  render  the  evidence  of  the  accomplice  wholly  superfluous.  On the other  hand,  it  would not be  safe to act upon such evidence merely because it  is  corroborated in  minor particulars or  incidental  details because, in such a case, corroboration does  not afford the necessary assurance that the main  story disclosed by the approver can be reasonably  and safely accepted as true. But it must never be  forgotten that before the court reaches the stage  of  considering the question of  corroboration and  its  adequacy  or  otherwise,  the  first  initial  and  

10 AIR 1957 SC 637

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essential question to consider is whether even as  an accomplice the approver is a reliable witness. If  the answer to this question is against the approver  then  there  is  an  end  of  the  matter,  and  no  question  as  to  whether  his  evidence  is  corroborated or not falls to be considered. In other  words, the appreciation of an approver's evidence  has  to  satisfy  a  double  test.  His  evidence  must  show that he is a reliable witness and that is a test  which is  common to all  witnesses.  If  this  test  is  satisfied the second test which still remains to be  applied  is  that  the  approver's  evidence  must  receive sufficient corroboration. This test is special  to the cases of weak or tainted evidence like that  of the approver.

8...Every person who is a competent witness is not  a reliable witness and the test of reliability has to  be satisfied by an approver all the more before the  question  of  corroboration  of  his  evidence  is  considered by criminal courts”.

39.In  Ravinder  Singh  v.  State  of  Haryana11, this  Court  has  

observed that: -

“An approver is a most unworthy friend, if at all,  and he, having bargained for his immunity, must  prove his worthiness for  credibility in court.  This  test  is  fulfilled,  firstly,  if  the  story  he  relates  involves him in the crime and appears intrinsically  to be a natural and probable catalogue of events  that  had  taken  place.  …  Secondly,  once  that  hurdle is crossed, the story given by an approver  so far as the accused on trial is concerned, must  implicate him in such a manner as to give rise to a  conclusion of guilt beyond reasonable doubt.”

11 (1975) 3 SCC 742

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40. Similar principles have been reiterated in  Mrinal Das  

and Ors. v. State of Tripura12.

41. In  A. Devendran  v.  State of T.N.13, the Court  has  

registered the view that there cannot be any dispute with  

regard  to  the  proposition  that  ordinarily  an  approver’s  

statement has to be corroborated in material particulars.  

Certain  clinching  features  of  involvement  disclosed  

directly to an accused by an approver must be tested qua  

each accused from independent credible evidence and on  

being  satisfied,  the  evidence  of  an  approver  can  be  

accepted. The Court further observed that the extent of  

corroboration that  is  required  before the  acceptance of  

the evidence of the approver would depend upon the facts  

and  circumstances  of  the  case,  however,  the  

corroboration  required  must  be  in  material  particulars  

connecting each of  the accused with  the offence,  or  in  

other  words,  the  evidence  of  the  approver  implicating  

12 AIR 2011 SC 3753 13 (1997) 11 SCC 720

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several accused persons in the commission of the offence  

must not only be corroborated generally but also qua each  

accused  but  that  does  not  mean  that  there  should  be  

independent  corroboration  of  every  particular  

circumstance  from  an  independent  source.  The  court  

proceeded to state that all that is required is that there  

must be some additional evidence rendering it probable  

that  the  story  of  the  accomplice  is  true  and  the  

corroboration  could be both by direct or circumstantial  

evidence. Be it noted, the said principle was stated on the  

basis of pronouncements in Ramanlal Mohanlal Pandya  

v.  State of  Bombay14,  Tribhuvan Nath  v.  State of  

Maharashtra15,  Sarwan  Singh  v.  State  of  Punjab  

(supra),  Ram  Narain  v.  State  of  Rajasthan16 and  

Balwant Kaur v. Union Territory of Chandigarh17.

42. In  Chandan and another  v.  State of Rajasthan18,  

the  Court  held  that  so  far  as  the  question  about  the  

14 AIR 1960 SC 961 15 (1972) 3 SCC 511 16 (1973) 3 SCC 805 17 (1988) 1 SCC 1 18 (1988) 1 SCC 696

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conviction based on the testimony of the accomplice is  

concerned, the law is settled and it is established as a rule  

of prudence that the conviction could only be based on  

the testimony of the accomplice if it is thought reliable as  

a whole and if it is corroborated by independent evidence  

either  direct  or  circumstantial,  connecting  the  accused  

with the crime.

43.In Haroon Haji Abdulla v. State of Maharashtra19, the view  

in this regard was expressed in the following terms: -

“An  accomplice  is  a  competent  witness  and  his  evidence  could  be  accepted  and  a  conviction  based on it if there is nothing significant to reject  it as false. But the rule of prudence, ingrained in  the consideration of accomplice evidence, requires  independent  corroborative  evidence  first  of  the  offence and next connecting the accused, against  whom the accomplice evidence is used, with the  crime.”

44. In  Major E.G. Barsay v. State of Bombay20, it has  

been observed that this Court had never intended to lay  

down  that  the  evidence  of  an  approver  and  the  

corroborating pieces of evidence should be treated in two  

19 AIR 1968 SC 832 20 AIR 1961 SC 1762

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different compartments, that is to say, the court shall first  

have to consider the evidence of the approver dehors the  

corroborated pieces of evidence and reject it if it comes to  

the  conclusion  that  his  evidence  is  unreliable;  but  if  it  

comes to the conclusion that it is reliable, then it will have  

to consider whether that evidence is corroborated by any  

other evidence.  

45. In Renuka Bai alias Rinku alias Ratan and another  

v.  State  of  Maharashtra21, the  Court  held  that  the  

evidence  of  the  approver  is  always  to  be  viewed  with  

suspicion especially when it is seriously suspected that he  

is suppressing some material facts.

46. In Ranjeet  Singh  and  another  v.  State  of  

Rajasthan22, the  Court  observed that  while  looking for  

corroboration, one must first look at the broad spectrum  

of the approver’s version and then find out whether there  

is other evidence to lend assurance to that version. The  

nature and extent of the corroboration may depend upon  21 (2006) 7 SCC 442 22 (1988) 1 SCC 633

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the facts of each case and the corroboration need not be  

of  any direct  evidence that  the accused committed the  

crime. The corroboration even by circumstantial evidence  

may be sufficient.  

47. Keeping in view the aforesaid principles which relate to  

the acceptance of the evidence of an approver, we have  

bestowed our anxious consideration and carefully perused  

the judgment of the trial court and that of the High Court.  

Learned counsel for the parties have taken us through the  

evidence  of  Pappu  @  Saleem,  PW-1.   He  has  clearly  

deposed that Abdul Mateen who is also known as Iqbal,  

used to visit the Madarsa at village Farah.  Abdul Hameed  

and Abdul Mateen were seen at village Farah many times  

without any reason before the incicent.  As far as Abdul  

Hameed and Raies Beg are concerned,  he has deposed  

that both the accused used to go to the house of Chandra  

Prakash  in  Roopwas to  collect  the  “masala”  in  a  cover  

box.   Both of  them used to  meet  Abdul  Mateen in  the  

Madarsa at village Farah on a number of occasions.  He

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used to contact Abdul Mateen from Firozabad many times  

and the watches fixed with bombs as timers were given at  

Farah by Abdul Hameed to make the bomb.  It has also  

come out in his evidence that Pappu along with Accused  

Raies  Beg  @ Raies  Ahmad  and  other  accused  persons  

used to visit the Madarsa at village Farah.  His evidence  

also  shows  that  Raies  Beg  and  Pappu  used  to  bring  

explosive  from  Roopwas  to  village  Farah  and  he  has  

mentioned  that  Raies  Beg  had  brought  five  boxes  of  

“masala”  for  Rs.10,000/-  from  the  house  of  Chandra  

Prakash and those boxes were unloaded at the Madarsa in  

Farah.  Pappu was asked to carry the boxes along with  

Raies Beg and Abdul Hameed.  He has clearly deposed  

about  the  conspiracy  that  was  told  to  him by  accused  

Abdul Mateen.  As far as Chandra Prakash is concerned, it  

had come in the evidence that though Pappu used to visit  

his house at Roopwas along with other accused persons,  

yet he used to stay outside the house of Chandra Prakash  

and the  others  used to  go  to  bring  “masala”  from the  

house of Chandra Prakash.  The alleged “masala” used to

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be brought in boxes from time to time to the associates of  

Raies  Beg  and  Abdul  Hameed  who  used  to  come  to  

Madarsa at Farah.

48. From the analysis of the aforesaid evidence, it is clear  

that  Pappu  as  approver  has  implicated  himself  in  the  

crime.  He has not made any effort to give any statement  

which  is  exculpatory.   He  has  spoken  quite  graphically  

about the involvement of  all  the accused persons.   Mr.  

Jain, learned senior counsel appearing for the appellant,  

would contend that he has used the word “masala” but  

not  ammonium  nitrate,  but  Pappu  has  clarified  that  

though  he  was  not  aware  what  was  contained  in  the  

boxes, yet he was told by the other accused persons later  

on that  it  contained certain  explosive substances.   The  

said  aspect  has  been  corroborated  from  other  ocular  

evidence as well as the seizure.

49. Presently,  we  shall  advert  to  the  various  facets  of  

corroboration  in  evidence  against  the  accused  persons.  

As far as Chandra Prakash is concerned, on the basis of

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the approver Chandra Prakash was arrested on 1.8.1997  

vide  Ext.P-37.   On  the  basis  of  the  information  of  the  

accused,  Chandra  Prakash,  the  Investigating  Officer  

searched his house and godown and recovered 28 boxes  

of ammonium nitrate.  It  has come out in the evidence  

that Chandra Prakash opened the lock of the godown the  

key of which was in his possession.  Bhup Singh, PW-32,  

eye witness to the seizure of articles from the godown of  

Chandra  Prakash,  has  categorically  stated  that  the  

accused Chandra Prakash led to the recovery of red and  

blue coloured bundles from the godown of the building.  

The office of PW-32 was also in the said building.  From  

the  godown,  fuse  wires  and  five  kilograms  of  grey  

coloured material was also recovered.  The Investigating  

Officer, M.M. Atray, PW-71, has also proven the factum of  

recovery.  Shivnath Kuriya, PW-22, who had accompanied  

the  investigating  team,  has  deposed that  the  explosive  

which  was  used  in  the  live  bomb  had  ammonium  

nitrate/gelaltine.  Chetan Das Rawatani, PW-34, who is an  

expert  witness  in  respect  of  explosives,  approved  his

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report  Ext.  P-49  and  has  deposed  that  the  ammonium  

nitrate  that  was  seized  from  the  godown  of  Chandra  

Prakash was in such a condition that it could be used to  

prepare a bomb.

50. Mr.  Jain,  as  has  been  stated  earlier,  has  seriously  

criticized about the recovery from Chandra Prakash on the  

ground that when he led to the discovery of the articles  

seized, he was not arrested.  In this context, we refer with  

profit  to  the  decision  in  Mohd.  Arif  alias  Ashfaq  v.  

State (NCT of Delhi)23 wherein the Court opined thus: -

“The essence of  the  proof  of  a  discovery  under  Section  27  of  the  Evidence  Act  is  only  that  it  should be credibly proved that the discovery made  was  a  relevant  and  material  discovery  which  proceeded  in  pursuance  of  the  information  supplied by the accused in the custody. How the  prosecution proved it, is to be judged by the court  but if the court finds the fact of such information  having been given by the accused in  custody is  credible  and acceptable  even in  the  absence of  the recorded statement and in pursuance of that  information  some  material  discovery  has  been  effected  then  the  aspect  of  discovery  will  not  suffer from any vice and can be acted upon.”

23 (2011) 13 SCC 621

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relevancy  of  the  fact  discovered  must  be  established  according  to  the  prescriptions  relating  to  relevancy  of  other  evidence  connecting it with the crime in order to make  the fact discovered admissible.

(2) The fact must have been discovered.

(3) The  discovery  must  have  been  in  consequence of some information received from  the accused and not by the accused’s own act.

(4) The person giving  the  information  must  be  accused of any offence.

(5) He must be in the custody of a police officer.

(6) The  discovery  of  a  fact  in  consequence  of  information  received  from  an  accused  in  custody must be deposed to.

(7) Thereupon  only  that  portion  of  the  information which relates distinctly or strictly  to  the  fact  discovered  can  be  proved.  The  rest is inadmissible.”

54. In this context, it would be fruitful to refer to the ruling  

in State of Maharashtra v. Damu32 wherein it has been  

observed that: -

32 (2000) 6 SCC 269

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“35. The basic idea embedded in Section 27 of  the Evidence Act is the doctrine of confirmation  by subsequent events. The doctrine is founded  on the principle that if any fact is discovered in  a  search  made  on  the  strength  of  any  information  obtained  from  a  prisoner,  such  a  discovery  is  a  guarantee  that  the  information  supplied by the prisoner is true. The information  might  be  confessional  or  non-inculpatory  in  nature, but if it results in discovery of a fact it  becomes  a  reliable  information.  Hence  the  legislature  permitted  such  information  to  be  used as evidence by restricting the admissible  portion to the minimum.”

55. In Aftab Ahmad Anasari v. State of Uttaranchal33,  

after  referring  to  earlier  decisions,  a  two-Judge  Bench,  

appreciating the material brought on record, came to hold  

that when the accused was ready to show the place where  

he had concealed the clothes of the deceased, the same  

was clearly admissible under Section 27 of the Evidence  

Act because the same related distinctly to the discovery of  

the clothes of the deceased from that very place.

56. In Bhagwan Dass v. State (NCT of Delhi)34, relying  

on the decisions in  Aftab Ahmad Anasari (supra) and  

33 (2010) 2 SCC 583 34 (2011) 6 SCC 396

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Manu  Sharma v.  State  (NCT  of  Delhi)35,  the  Court  

opined that when the accused had given a statement that  

related to the discovery of an electric wire by which the  

crime was committed, the said disclosure statement was  

admissible as evidence.

57. As  the  material  brought  on  record  would  show,  the  

accused was in the custody of the investigating agency  

and the fact whether he was formally arrested or not will  

not vitiate the factum of leading to discovery.  However, it  

may be stated that the accused was also arrested on that  

day.  We have dealt with the issue that formal arrest is not  

necessary  as  Mr.  Jain  has  seriously  contended that  the  

arrest was done after the recovery.  As we have clarified  

the  position  in  law,  the  same  would  not  make  any  

difference.

58. As  regards  recovery  from  accused  Abdul  Mateen  is  

concerned, it is borne out from the record that after his  

arrest on 28.6.1997, he gave information at 6.00 a.m. as  

35 (2010) 6 SCC 1

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contained in Ext. P-255, about another bomb and on the  

basis of the said information the Investigating Officer, PW-

71,  visited  the  spot  along with  the  accused and at  his  

instance  a  live  bomb  was  recovered  which  was  

underneath the earth. In the said information the accused  

had  stated  that  the  two  bombs  were  inside  the  SMS  

Stadium and he could verify the places by going inside the  

stadium. In the evidence of Jai Narain, PW-6, Gopal Singh,  

PW-7 and Shivnath, PW-22, it has come on record that the  

bombs were recovered at the instance of accused Abdul  

Mateen on 28.6.1998.  This fact has been corroborated by  

Vinod  Sharma,  PW-16  and  Gordhan,  PW-10  who  also  

accompanied  the  investigating  team.   Shivnath,  PW-22,  

had  clearly  stated  that  the  bomb  recovered  was  high  

explosive time bomb and the battery was inside the timer  

and the same was switched on and he further confirmed  

that  electric  detonator  was  used  in  the  bomb.   Vinod  

Kumar, PW-16, also stated that the electric detonator was  

found in the bomb and the same was neutralized.  Suresh  

Kumar Saini, PW-67, in his deposition, gave description of

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loss caused due to the explosion of the time bomb.  He  

had  further  deposed  that  lid  of  stainless  steel  of  casio  

watch had been recovered from the scene of crime.

59. On appreciating  the  aforesaid  material,  it  is  clear  as  

crystal that the said accused has stated about the fact of  

planting of bomb at a particular site in the stadium and  

led to the said place from which the bomb was recovered.  

The submission of Mr. Jain is that such material cannot be  

put against the accused being inadmissible in evidence.  

In  this  context,  we  may  refer  to  a  two-Judge  Bench  

decision  in  Prakash  Chand  v.  State  (Delhi  

Administration)36 wherein  the Court,  after  referring to  

the  decision  in  Himachal  Pradesh Administration  v.  

Om Prakash37, opined thus: -

“There is a clear distinction between the conduct  of a person against whom an offence is alleged,  which  is  admissible  under  Section  8  of  the  Evidence Act, if such conduct is influenced by any  fact  in  issue or  relevant  fact  and the statement  made  to  a  Police  Officer  in  the  course  of  an  investigation  which  is  hit  by  Section  162  of  the  Criminal  Procedure  Code.  What  is  excluded  by  

36 (1979) 3 SCC 90 37 (1972) 1 SCC 249

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Section  162,  Criminal  Procedure  Code  is  the  statement made to a Police Officer in the course of  investigation and not the evidence, relating to the  conduct of an accused person (not amounting to a  statement)  when confronted or  questioned by  a  Police  Officer  during  the  course  of  an  investigation.  For  example,  the  evidence  of  the  circumstance, simpliciter, that an accused person  led  a  Police  Officer  and  pointed  out  the  place  where  stolen  articles  or  weapons  which  might  have been used in the commission of the offence  were  found  hidden,  would  be  admissible  as  conduct,  under  Section  8  of  the  Evidence  Act,  irrespective  of  whether  any  statement  by  the  accused contemporaneously with or antecedent to  such conduct falls within the purview of Section 27  of the Evidence Act.”

60. The  said  principle  has  been  reiterated  in  A.N.  

Venkatesh and another v. State of Karnataka38.

61. Tested on the touchstone of the aforesaid enunciation  

of law, the submission of Mr. Jain leaves us unimpressed  

and we are inclined to hold that the said fact is a relevant  

fact which is admissible in evidence.

62. The  next  aspect  that  is  to  be  adverted  to  is  that  

ammonium  nitrate  not  being  an  explosive  substance,  

mere  possession  cannot  bring  the  accused  Chandra  38 (2005) 7 SCC 714

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Prakash within the ambit of any offence.  In this regard,  

we may refer to Section 4(d) of the 1884 Act.  It reads as  

follows: -

“(d) “explosive”  means  gunpowder,  nitroglycerine,  nitroglycol,  guncotton,  di-nitro- toluene,  tri-nitro-toluene,  picric  acid,  di-nitro- phenol,  tri-nitro-resorcinol  (styphnic  acid),  cyclo- trimethylene-tri-nitramine,  penta-erythritol- tetranitrate,  tetryl,  nitro-guanidine,  lead  azide,  lead  styphynate,  fulminate  of  mercury  or  any  other metal, diazo-di-nitro-phenol, coloured fires or  any  other  substance  whether  a  single  chemical  compound  or  a  mixture  of  substances,  whether  solid  or  liquid or  gaseous used or  manufactured  with  a  view  to  produce  a  practical  effect  by  explosion or pyrotechnic effect; and includes fog- signals, fireworks, fuses, rockets, percussion-caps,  detonators,  cartridges,  ammunition  of  all  descriptions and every adaptation or preparation  of an explosive as defined in this clause;”

63. Section 2 of the 1908 Act, which deals with definitions,  

reads as follows: -

“2. Definitions. - In this Act--

(a) the expression "explosive substance" shall be  deemed to include any materials for making  any explosive substance; also any apparatus,  machine,  implement  or  material  used,  or  intended to be used, or adapted for causing,  or aiding in causing, any explosion in or with  any explosive substance; also any part of any  such apparatus, machine or implement;

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(b) the  expression  "special  category  explosive  substance"  shall  be  deemed  to  include  research development explosive (RDX), penta  erythritol  tetra  nitrate  (PETN),  high  melting  explosive (HMX), tri nitro toluene (TNT), low  temperature  plastic  explosive  (LTPE),  composition  exploding  (CE)  (2,  4,  6  phenyl  methyl  nitramine or  tetryl),  OCTOL (mixlure  of  high  melting  explosive  and  tri  nitro  toluene),  plastic  explosive  kirkee-1  (PEK-1)  and  RDX/TNT  compounds  and  other  similar  type of explosives and a combination thereof  and remote control devices causing explosion  and any other substance and a combination  thereof which the Central Government may,  by notification in the Official Gazette, specify  tor the purposes of this Act.”

64. Keeping in view the broad definitions of both the Acts,  

we are required to see what has been seized from the  

accused  Chandra  Prakash.   What  is  evincible  from the  

seizure report,  Ext.  P-42, apart from ammonium nitrate,  

fuse wire and empty boxes were also seized.  That apart,  

17 packs containing blue coloured fuse wire kept in plastic  

(polythene) bags and four boxes containing blue coloured  

fuse wire, “Sun brand safety fuse” numbered as 40208,  

40158,  39937,  40203  respectively,  one  carton  of  

explosives  detonating  fuse  measuring  1500  meters  in  

length and 38 kg in weight, containing four wooden logs of

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red  colour,  375  meter  wire  in  each  Gattha  and  black  

coloured cap fitted on the tip of the wire, three cartons of  

explosive Belgelative 90 (Gulla Dynamite) net weight of  

each being 25 Kg. with “Division I Class II safety distance  

category  ZZ  Bharat  Explosive  Ltd.  9  KM  Lalitpur  (U.P.)  

Date  of  manufacturing  4.6.97  batch  No.  2”  written  on  

each box, four packets of O.D. Detonator containing 1600  

detonators, a substance of light yellow colour kept inside  

a carton of paer in a plastic bag weighing nearly 5 kg and  

16 empty cartons, one of gulla and 15 of fuse wire, were  

seized.

65. Section  2  of  the  1908  Act  has  a  deeming  provision  

which states that explosive substance would include any  

materials for making any explosive substance.  Similarly,  

Section  4(d)  of  the  1884  Act  has  a  broader  spectrum  

which  includes  coloured  fires  or  any  other  substances,  

whether  single  chemical  compound  or  a  mixture  of  

substances.  That apart, as we find, apart from ammonium  

nitrate other articles had been seized.  The combination of

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the same, as per the evidence of the expert witness, was  

sufficient to prepare a bomb for the purpose of explosion.  

In  addition  to  the  same,  huge  quantity  of  ammonium  

nitrate  was  seized  and  it  was  seized  along  with  other  

items.   The cumulative  effect  is  that  the possession of  

these  articles  in  such  a  large  quantity  by  the  accused  

gives  credence  to  the  prosecution  version  that  the  

possession was conscious and it was intended to be used  

for the purpose of the blast.

66. The next aspect which needs to be adverted to is non-

framing of specific charge.  On a perusal of the record, we  

find that the learned trial Judge has framed the charges  

specifically by putting the charges to the accused.  The  

purpose of framing of charges is that the accused should  

be  informed with  certainty  and accuracy  of  the  charge  

brought  against  him.   There  should  not  be  vagueness.  

The  accused  must  know  the  scope  and  particulars  in  

detail.   In  this  context,  we  may  refer  to  decision  in

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Santosh Kumari v. State of Jammu and Kashmir and  

others39, wherein it has been held as follows: -

“17. Like all procedural laws, the Code of Criminal  Procedure  is  devised  to  subserve  the  ends  of  justice  and  not  to  frustrate  them  by  mere  technicalities. It regards some of its provisions as  vital but others not, and a breach of the latter is a  curable  irregularity  unless  the  accused  is  prejudiced thereby. It places errors in the charge,  or even a total absence of a charge in the curable  class. That is why we have provisions like Sections  215 and 464 in the Code of Criminal  Procedure,  1973.

18. The object of the charge is to give the accused  notice of the matter he is charged with and does  not touch jurisdiction. If, therefore, the necessary  information is conveyed to him in other ways and  there is no prejudice, the framing of the charge is  not invalidated. The essential part of this part of  law is not any technical formula of words but the  reality, whether the matter was explained to the  accused and whether he understood what he was  being  tried  for.  Sections  34,  114  and  149  IPC  provide for criminal liability viewed from different  angles as regards actual participants, accessories  and  men  actuated  by  a  common  object  or  a  common  intention;  and  as  explained  by  a  five- Judge  Constitution  Bench  of  this  Court  in  Willie  (William) Slaney v. State of M.P.40 SCR at p. 1189,  the charge is a rolled-up one involving the direct  liability  and  the  constructive  liability  without  specifying  who  are  directly  liable  and  who  are  sought to be made constructively liable.”

39 (2011) 9 SCC 234 40 AIR 1956 SC 116

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67. In  K. Prema S. Rao  v.  Yadla Srinivasa Rao41,  the  

Court  opined  that  though  the  charge  specifically  under  

Section 306 IPC was not framed, yet all  the ingredients  

constituting the offence were mentioned in the statement  

of charges.  In that context, a three-Judge Bench of this  

Court  ruled that  mere omission or  defect  in  framing of  

charge does not disable the criminal court from convicting  

the accused for the offence which is found to have been  

proved on the evidence on record.  The said principle has  

been  reiterated  in  Dalbir  Singh  v.  State  of  U.P.42,  

State of U.P.  v.  Paras Nath Singh43 and  Annareddy  

Sambasiva Reddy v. State of A.P.44.

68. In  the  case  at  hand,  as  has been stated  earlier,  the  

charges  have  been  framed  and  we  do  not  find  any  

vagueness.  That apart,  neither any prejudice has been  

caused nor has there been any failure of justice.  Thus,  

the  submission  of  Mr.  Jain  in  this  regard  leaves  us  

unimpressed. 41 (2003) 1 SCC 217 42 (2004) 5 SCC 334 43 (2009) 6 SCC 372 44 (2009) 12 SCC 546

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69. The next facet which deserves to be addressed pertains  

to the criminal conspiracy.  The submission of the learned  

counsel for the appellants is that the learned trial Judge  

has  inappositely  drawn certain  inferences  to  show  that  

there was a criminal conspiracy and the High Court has,  

without delving deep into the matter, concurred with the  

same. As per the evidence brought on record, it is clear as  

crystal  that  accused  Abdul  Mateen,  Abdul  Hamid  and  

Raies Beg used to meet quite frequently at the Madarsa at  

village Farah.   It  is  also evident from the deposition of  

Kanchan  Singh,  PW-11,  Shri  Chand,  PW-12,  Murari  Lal  

Sharma,  PW-13,  and  Ashok  Kumar,  PW-17,  that  the  

accused Abdul Mateen, Raies Beg and Abdul Hamid used  

to  meet  at  the Madarsa at  village Farah.    That  apart,  

Pappu  had  also  deposed  implicating  himself  that  when  

there  used  to  be  discussion  at  madarsa  in  the  village  

Farah about the suitable place for planting the bomb, the  

timer of the bomb was supplied by Dr. Abdul Hamid.  The  

chain  of  events  and  the  participation  of  the  accused

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persons which had the genesis in the discussion and the  

meetings, the purchase of ammonium nitrate and other  

items, carrying of the boxes to the Madarsa and all other  

factors cumulatively show that there was conspiracy.

70. While dealing with the facet of criminal conspiracy, it  

has to be kept in mind that in case of a conspiracy, there  

cannot  be  any  direct  evidence.   Express  agreement  

between  the  parties  cannot  be  proved.   Circumstances  

proved before, during and after the occurrence have to be  

considered to decide about the complicity of the accused.  

Such  a  conspiracy  is  never  hatched  in  open  and,  

therefore, evaluation of proved circumstances play a vital  

role  in  establishing  the  criminal  conspiracy.   In  this  

context,  we  may  refer  with  profit  to  a  passage  from  

Yogesh  alias  Sachin  Jagdish  Joshi  v.  State  of  

Maharashtra45: -

“20. The  basic  ingredients  of  the  offence  of  criminal conspiracy are: (i) an agreement between  two  or  more  persons;  (ii)  the  agreement  must  relate to doing or causing to be done either (a) an  illegal act; or (b) an act which is not illegal in itself  

45 (2008) 10 SCC 394

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omissions which constitute an offence are done in  India  or  outside  its  territory,  the  conspirators  continuing to be the parties to the conspiracy and  since  part  of  the  acts  were  done  in  India,  they  would obviate the need to obtain the sanction of  the Central Government. All of them need not be  present in India nor continue to remain in India.  The entire agreement must be viewed as a whole  and it has to be ascertained as to what in fact the  conspirators  intended  to  do  or  the  object  they  wanted  to  achieve.  (Vide: R.K.  Dalmia v. Delhi  Administration49, Lennart  Schussler  and  Anr. v. Director  of  Enforcement  and  Anr.50,   Shivanarayan Laxminarayan Joshi v. State of  Maharashtra  and Mohammad  Usman  Mohammad  Hussain  Maniyar  and  Anr. v. State of Maharashtra51).”

73. Testing the present factual matrix on the anvil of the  

aforesaid  enunciation  of  law,  we  are  of  the  considered  

view that the opinion expressed by the learned trial Judge  

as  well  as  by  the  High  Court  that  there  has  been  

conspiracy between the parties to commit the blast on a  

particular day cannot be found fault with.

74. Presently, we shall  engage ourselves to deal with the  

conviction of accused Abdul Mateen for the offence under  

49 AIR 1962 SC 1821 50 (1970) 1 SCC 152 51 AIR 1981 SC 1062

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Section 14 of the Foreigners Act, 1946.  The said provision  

reads as under: -

“14. Penalty for contravention of provisions  of the Act, etc. -  whoever –

(a) Remains  in  any  area  in  India  for  a  period  exceeding  the  period  for  which  the  visa  was  issued to him;

(b) does any act in violation of the conditions of  the valid visa issued to him from his entry and  stay in India or any part thereunder;

(c) contravenes the provisions of this Act or  of  any  order  made  thereunder  or  any  direction  given in pursuance of this Act or such order for  which no specific punishment is provided under  this  Act,  shall  be punished with imprisonment  for a term which may extend to five years and  shall also be liable to fine; and if he has entered  into a bond in pursuance of clause (f)  of sub- section  (2)  of  section  3,  his  bond  shall  be  forfeited,  and any person bound thereby shall  pay the penalty thereof or  show cause to the  satisfaction  of  the  convicting  court  why  such  penalty should not be paid by him.

Explanation. – For the purposes of this section,  the  expression  “visa”  shall  have  the  same  meaning as assigned to it  under  the Passport  (Entry into India) Rules, 1950 made under the  Passport  (Entry  into  India)  Act,  1920  (34  of  1920).”

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75. The  learned  trial  Judge,  analyzing  the  material  on  

record, has come to hold that the said Abdul Mateen is a  

resident of Pakistan and he had no valid document to be  

in India.  In his statement under Section 313 of the Code,  

he had not disputed that he was not having passport or  

visa and he is of Pakistan nationality.  Thus, the offence  

under the said Act has been held to be proved.  The High  

Court has concurred with the said view.  In our considered  

opinion, the offence under the said Act has been proved  

beyond reasonable doubt.

76. In view of the aforesaid analysis, we conclude and hold  

that the grounds assailing the judgment of conviction and  

the order  of  sentence have no legal  substantiality  and,  

accordingly, they are rejected.

77. The factual scenario of the instant case compels us to  

state  that  these  kinds  of  activities  by  anyone  breeds  

lawlessness, fear and affects the fundamental unity of our  

great  country.   A  nation  with  a  desire  to  prosper  is

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required  to  maintain  high  degree  of  law  and  order  

situation  apart  from  respecting  “imperatives  of  

internationalism”.   Certain  individuals  harbouring  

unacceptable notions and inexcusable philosophy and, on  

certain  occasions,  because  of  enormous  avarice,  try  to  

jeopardize the cohesive and collegial fabric of the State.  

This  leads  to  national  decay  and  gives  rise  to  

incomprehensible anarchy.  It  reflects non-reverence for  

humanity.  Be it categorically stated, every citizen of this  

country is required to remember that national patriotism  

is  founded on the  philosophy of  public  good.   Love for  

one’s  country  and  humanity  at  large  are  eternally  

cherished values.  The infamous acts of the appellants are  

really  condemnable  not  only  because  of  the  dent  they  

intended to create in the social peace and sovereignty of  

the nation,  but  also  from the humane point  of  view as  

they are founded on greed, envy, baseless anger, pride,  

prejudice and perverse feelings towards mankind.

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78. We have, in agony and anguish, have expressed thus  

because when a devastating activity like the present one  

occurs  on  the  Republic  Day  of  our  country  Bharat,  it  

injures  the  nationality,  disturbs  the  equilibrium of  each  

individual citizen, creates a concavity in the equanimity of  

the peace of the State, generates a stir in the sanctity and  

divinity of law and order situation which is paramount in  

any civilized State,  attempts to  endanger the economic  

growth  of  a  country  and,  in  the  ultimate  eventuate,  

destroys  the  conceptual  normalcy  of  any  habitat.   Law  

cannot remain silent to this because it is the duty of law to  

resist  such  attacks  on  peace.   It  is  manifest  that  the  

accused-appellants had conspired to send a savage stir  

among the citizenry of this country on the Republic Day.  

The great country like ours cannot succumb to this kind of  

terrorist  activity  as  it  is  nationally  as  well  as  

internationally  obnoxious.   Such  tolerance  would  

tantamount to acceptance of defeat.  The iron hands of  

law  has  to  fall  and  in  the  obtaining  facts  and  

circumstances, as the charges have been proved beyond

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reasonable  doubt,  the  law  has  rightly  visited  the  

appellants and, accordingly, we concur with the same.

79. Consequently,  all  the  appeals,  being  bereft  of  merit,  

stand dismissed.

………………………………J. [K.S. Radhakrishnan]

………………………………J. [Dipak Misra]

New Delhi; May 9, 2014.