This application was filed before the MCOCA court on July 19, 2013
IN THE SPECIAL COURT CONSTITUTED UNDER MCOCA ACT
1999, FOR GREATER BOMBAY AT MUMBAI
MISC. APPLICATION NO. OF 2013
M.CO.C.A SPECIAL CASE NO. 23 OF 2006
1) Noorulhuda Samsodhoha …..APPLICANT.
R/o H No 42 S No 91 Jafar Nagar
Malegaon Dist. Nasik.
2) Shabbir Ahmad Masiullah
Mahada Plot No 58 Noor Bagh
Malegaon Dist. Nasik
3) Raess Ahamd Rajjab Ali Mansuri
Mahada Plot 319 New Islampura
Malegaon Dist. Nasik
4) Mohd .Zahid Abul Majid
Malegaon Dist. Nasik
5. Abrar Ahmad Gulam Ahmad
Malegaon Dist Nasik
THE STATE OF MAHARSHTRA …….. RESPODENT
CHARGE UNDER SECTION 302,307,326,325,324,379,120(B) OF INDIAN PENAL CODE R/W SECTION 5,9 OF EXPLOSIVE SUBSTANCES ACT R/W SECTION 3.4. OF THE PREVENTION OF DAMAGE TO PUBLIC PROPERTIES ACT R/W SECTION 10,13,16,17,18,20 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT R/W SECTION 3(1)(i)(ii). 3(2), 3(4) OF MCOC ACT 1999.
APPLICTION FOR DISCHARGE UNDER SECTION 227 OF CRIMINAL PROCEDURE CODE
The applicants submits as under,
1. In brief the prosecution story is as as under:
That on 8-9-2006 bomb explosion had occur at Malegaon ,on Friday and Shabe.barat, next day of Ganesh Visarjan, three in Hamidiya Masjid Bada Kabrastan and one at Mushawarat Chowk, resulting in killing of 31 persons and injuries to 312 .Two cases registered Cr.No. 95/2006 and 96/2006 by Azad Nagar Police Station .
0n 13-9-2006 one fake bomb was found at Mohammdiya Masjid shopping complex , case is registered at Cr.No. 3088/2006 by City Police Station Malegaon .
2. The Initial investigation was carried out by local police under the supervision of then S P Mr. Rajvardhan till 23-10-2006 , then on 23-1o-2006 matter was transfer to ATS Mumbai, and on 21-12-2006 it was transfer to CBI ,on the same day ATS filed charge sheet, and on 6-4-2011 to NIA ( after confessional statement of Asimanand)
3. ATS filed chage sheet on 21-12-2006 , CBI filed a supplementary chargesheet on February 11, 2010, NIA filed his suplementry chargesheet on 22-5-2013
4. Noorul Huda accused No.1 was arrested by the local police, one month after the blast, u/s 10 and 13 Unlawfull activites act and then arrested in fage bomb blast took place on 13-9-2006 at Mahammdiya shopping complex Malegaon Dist, and lastly made first accused in Malegaon Bada Kabrashtan blast of 8th September 2006 .He was produced before Ld. Magistrate for remand. The Ld. Magistrate was pleased to remand the accused in Police Custody time to time and then thereafter in Judicial Custody.
5. That after the arrest of accused No,1,investigationg agencies arrested the other eight accused , all the accused were produced before Ld. Magistrate for remand. the Ld. Magistatre was pleased to remand the applcaint in police custody time to time and thereafter was pleased to remand the applicant in Judicial Custody
6. That after the arrest of above named accused persons in false case the ATS illegally invoked MCOCA. Act against the accused persons to obtain false confession under duress, threat and compulsion.
7. That in the name of investigation the investigation officer ACP Shengal recorded false statement of various witnesses under section 161 of Cr.PC and under section 164 of Cr.pc, by threatening, harras, under duress and coercion, .After completing the investigation the above said investigation officer filed charg sheet before this Hon’ble court and falsely implicated applicants in false case.
8. Asimanand made confessional statement before the Magistrate ,that Sunil Joshi meet him on Devali 2006, and told him that Malegaon 2006 blast done by our boys i.e.Hindu teeririst. On the basis of said statement. the further investigation of present matter was transferred to N.I.A and the N.I.A collected sufficient evidence to show that the present nine accused including the applicants are not involved in the said blast but other are involved.
9. That during the course of Investigation N.I.A arrested i). Rajendra Chaudhary, ii). Dhan Singh and Manohar, residents of Distt. Indore, Madhya Pradesh and others. Further investigation by NIA revealed that Rajendra Chaudhary, Dhan Singh, Manohar and Ramchandra Kalsangra had planted and caused four bomb blasts in Malegaon on 8th September 2006. After completion of investigation on 22.5.2013, charge sheet against (i) Rajendra Chaudhary @ Dashrath @ Rajender @ Samandar Singh, son of Vikram Singh Chaudhary, resident of Dhakad Seri, Depalpur, Indore (MP), (ii) Dhan Singh son of Shiv Singh Chaudhary, resident of Hanuman Chowk, Hathod, District Indore (MP), (iii) Manohar son of Ram Singh Narwaria, resident of House No.39, Gurdakhedi, Hatod, Indore (MP) and (iv) Lokesh Sharma, Son of Gopalkrishan Sharma, House No.180, Sanghi Street, Mhow, District Indore (MP) has been filed in the Special NIA Court, Mumbai under section 15 read with 16, 18 of UA(P) Act, section 302, 307, 324, 325, 326, 427, 436, 295 IPC 120-B, 153-A IPC Section 6(A) & 9(B) of Explosive Act and section 3,4,5,6 of Explosive Substances Act. Investigation against absconding accused persons Ramchandra Kalsangra, son of Gopal Singh Patidar, resident of House No.21, Shanti Vihar, Kanadia Road, Indore (MP), Sandeep Dange, son of Vishwas Keshav Dange, resident of House No.360, Lokmanya Nagar Ramchandra Kalsangra, Amit Hakla and others still continues. Mr. Prasad Shrikant Purohit (an Accused in 2008 Malegaon Blast as well) has confessed his role for participating right – wing terror outfit named “Abhinav Bharat” during his official duty in Indian Military Intelligence / as a Military Corp wherein according to prosecution the Accused has formed an Organization named “Abhinav Bharat Trust “at Pune in 2006.
10. That at the time of filling the charge sheet against the above named accused persons the N.I.A has not discharge the present applicants.
11. Without prejudice the prosecution story and the defence which the applicants may take in future the applicants prays for discharge on the following amongst other grounds.
a. That the applicants are innocent, nothing to do with the alleged offence, they are falsely implicated, on the basis of
forged and concocted evidence as mentioned below.
b. On 8-10-2006( one month after blast) Noorudlhuda was arrested by Azad Nagar police station in Cr No. 3081/2006 under section 10 and 13 of Unlawful Activities Act 1967 , alleging that Noorulhuda is active member of SIMI and some books were shown to be recovered from his house.F.I.R is annxed at Exh.”A”
c. On 10-10-2006 Azad Nagar police station filed application before the Ld. Magistrate Malegaon for seeking permission to undergo lie-detector, brain mapping and narco analysis test of Noorulhuda , on the ground that he is not co operating in investigation and refuse to disclose any thing regarding the blast. The application is at Exh.”B” It is surprising to note that in course of investigation under U P Act police is trying to fabricate evidence in respect of Malegaon blast case 2006. Ld Magistrate rejected the said application by order dated 12-10-2006 ,which is at Exh “C”
d. The Ld Magistrate has rejected the said application by well reason that it is not the case of prosecution that any incriminating material or evidence pertaining to blast was obtained and arresting accused in one crime and seeking permission from the court to do investigation in respect of another crime by conducting aforesaid scientific test. It is absolute illegal unconstitutional and without any authority .Nothing prevented the police in arresting Nooruduhuda in Malegaon blast case.
e. It is not the case of prosecution that aforesaid scientific test is required to corroborate a certain incriminating evidence or material found.
f. It is surprising to note that before the Ld Magistreate could decide the said application, Noorlhuda was taken to Banglore by police and subjected to brain mapping and poly graph examination in regard to Malegaon blast case, which is evident from letter dated 12-10-2006 issued by Dr. Malani address to Mr. Shaikh I.O Azad Nagar police station Malegaon.Letter written by Dr. Malani dt. 12-10-2006 (Ref letter from I.O 10-10-2006 annexed herewith at EXH “D” that brain mapping and poly graph test of Noorulhuda was carried out and he has knowledge about Malegaon blast.
g. On the very day 12-10-2006 after rejection. the revision application was preferred by police before Session Judge Malegaon vide criminal application No 133/2006, the said application was allowed by order dated 16-10-2006.Time and again his scientific test was carried out.
NOORULHUDA PROSECUTION IN FAKE BOMB
h. On 22-10-2006 Noorulhuda was taken into custody and shown to be arrested on Cr. No. 3088/2006 by city police station Malegaon having planted bomb in Mohammadiya Masjid shopping complex Malegaon,on 13-9-2006, on allegation that since communal riot could not takes place after Malegaon blast (8-9-2006) therefore Noorulhuda and other planned to place fake bomb on the ventilator of Mohammadiya Masjid complex in the area of mixed Hindu and Muslims population so that it could result communal riot.
i. A new twist was added to this episode by the Sp Rajvardhan and others who after sniffer dog having sniffed to be power full bomb and about 8 hours took to diffuse it by hectic efforts by diffuse team Nasik. Sp Rajvardhan gave press release that it was fake bomb.
NOORULHUDA ARRESTED IN BADA KABRASHTAN BLAST 2006
And lastly Noorulhuda was arrested in Malegaon Bada Kabrastan blast 2006.
It fails to appeal to once sense as to how could Nooruhuda hated up conspiracy under the nose of police when he was continuously under the police surveillance(described below) and police could not obtained a single piece of evidence against him including U P Act till his arrest on 8-10-2006.
NIA REPORT ABOUT NOORULHUDA
NIA supplementary charge sheet reveals that Crime branch officer Shri Shaik s/o Shaikh Munir made statement that being a crime
branch member he always kept watch on his the activities asper the order of Senior because Noorulhuda was SIMI Activist
NIA Sup.Charge Sheet reveals that Shri Devidas Baburao Sonawane under his statement u/s 161 says that on 14-9-2006 Sp.Rajwardhan called Noorulhuda and examine him and asked to keep discreet watch on his activities .I do not know what was the intelligent behind the Noorulhuda .I was asked by Sp.Rajwardhan to find out his involvement. The sketches were shown to him .He did not identify. He acted as per the direction of Dy.S.P. Shri Malegaonkar and Sp.Rajwardhan .After record his statement I did not find his involment toarrest him at that point of time.
NIA Sup. Charge sheet reaveal that Shaikh Nasir Abdul Hamid police inspector U/s 161 Cr.P.C. that after ten day of the blast acting on intelligence house of Noorulhuda was searched and some books and pamphlets of SIMI Ideology were recovered, he was arrested and PSI Sudhir Bhimrao Patil lodge FIR
NIA Sup. Charge sheet reveals that Shri Baburao Mukhtaji Joshi in his statement u/u 161 Cr.P.C. that on 11-10-2006 one person by name Noorulhuda was arrested by police Azad Nagar Cr.No. 3081/2006 U/S 10 and 13 0f U.p.Act and he was taken to Baglore by Dy.S.p. Shri, Malegaonkar for Narco Analysis Test. They came back on 14-10-2006 without conducting the test.
Again on 16-10-2006 he was asked by Dy.S.P. Malegaonkar to take Noorulhuda to Baglore for Narco Analysis .When we reached to FSL Shri Jaiswal CP/ATS Mumbai was there.Noorulhuda was taken for Narco Analysis Test. Dr.Malani of FSL and Addl.CP. Jaiswal were in laboratory.
On 21-10-2006 on the day of Deepavali he was asked by Shri Jaiswal to bring Noorulhuda to FSL.CP. Shri Jaiswal was present inside.Dr. Malani conducted Narco Analysis test of Noorulhuda CD of Narco Analysis was collected by Addl. CP. Jaiswal
That means immediately after the arrest of Noorulhuda U/s 10 and 13 UPA Act on 8-10-2006 without collecting any evidence he was taken to Banglore for scientific test and time and again subjected to scientific test .And after adding and subtracting date favourable scientific Test report was prepare. Now Dr.Malani is suspended from his post, as she was serving on bogus certificate.
NIA also conducted scientific Test of all accused, which negate the report of ATS.
NIA Supplementary charge sheet also reveals that ATS and CBI focus primarily on fake bomb recovered on 13-9-2006 and linking the same with accused person in manner described above
It is surprising to note that in charge sheet of Malegaon blast case 2006,, in so called confessional statement of the accused it is the case of ATS that in the third week of July 2006 accessed prepared six bombs in the godown of Shabbir Massiullah and till the blast, it was kept in the same godown .Confessional statement also reveals that all the activities of bomb blast took place in the godown of Shabbir .On 7th September at night , in morning of 8th September 2006 and on 13th September ,they gathered together in the godown of Shabbir and police fails to keep watch on Noorulhuda when he was under discrete watch of police from May 2006. Noorulhuda was serving in the battery shop of Shabbir. This falsify the claim of police that they have prepared bomb and gathered at godown etc.
ABOUT SHABBIR MASSIULLAH ( Accused No.2)
Shabbir masiullah was already in police custody since 2-8-2006, when Malegaon blast took . He was shown to be arrested in Malegaon blast case on 21-11-2006
Shabbir and one Nafees were arrested and prosecuted in Cr.No. 1106/2006 , U/S 10 and 13 of Unlawful Activities (prevention ) Act 1067, on 1 -8-2006.BY Shripath Bala Krishna attached to DCP CID UNIT 7 GHATKOPER MUMBAI , received information from reliable informer (kabari )that Shabbir Massiullah and one Nafees from Govandi are likely to create destructive activities dangerous to lives and property at large and they have taken training from Pakistan for handling arms and ammunition, and will cause destruction during the Ganesh Utshav during the period between 28-8-2006 to 7-9-2006.Shripath Kale disclose the said fact to his superior and therefore Shabbir Massiullah was arrested on 2-8-2006 and they were prosecuted in Cr.No. 1106/2006 , U/S 10 and 13 of Unlawful Activities (prevention ) Act 1067,which is annexed at Exh. “E”Collecltivey
It is to be noted that police after registering the said case against the Shabbir Massiullah ,police neither taken the search of godown and house nor kept watch on his associate particularly when there was serious allegation against him.
It is surprising to note that in charge sheet of Malegaon 2006 Blast case , in so called confessional statement of the accused , it is the case of ATS that in the third week of July 2006 , accused persons prepared six bombs in the godown of said Shabbir Massiullah and till the blast the same was kept in the same godown . The confessional statement also reveals that all the activities of bomb blast took place in the godown of Shabbir.
On 7th September 2006 at night, in the morning of 8th September and 13th September , they gathered together in the godown of Shabbir ,but police neither kept watch on the godown , nor taken search of godown and his associates. It assume important particularly when CID Mumbai had specific knowledge that Shabbir is likely to do destructive activites at the eve of Ganesh Festival.Thus these falsify the claim of police that they have prepared bomb and gathered at his the down.
It is surprising to note that Shabbir was arrested by police on 2-8-2006, and other accused were so brave that they do not change the place of gathering and they continued their bomb blast activities as mentioned above carried out in the same godown of Shabbir.
In Cr.No. 1106 of 2006, it is alleged that Shabbir massiullah had gone to Pakistan via Dubai and after taking training return via Nepal. These aspect were investigated by police, addressing two letter to Regional Passport Branch SB- II ,CID MUMBAI The PRO (Policy)pro Mumbai replied back vide by its letter dated 18-8-2006 that no detail of passport of Shabbir Masiullah are available and record shows that no fresh passport in the name of Shabbir Masiuulah , is issued by this office.Which is at Exh F This falsify the claim of prosecution of having traveled to Pakistan via Dubai and received training.
After Ghatkoper case ,Shabbir Massiullah was arrested in Bomb blast case Nasik 2006, in which he was release u/s 169 CR.p.c thereafter his transfer was taken in Malegaon blast 2oo6.
It is to be noted that on 22-11-2006 the confessional statement of Shabbir Massiullah was recorded by Police Commissioner and in verification recorded by Metropoilitan Magistrate, that confessional statement are false and concocted and they never prepaered the bomb at his factory he was pressurized to sing .This amount retraction.Retraction was done by him immediately.
The above facts shows that how police and ATS have fabricated and cococted evidence against the accused.
Arrest of Shabbir before the blast and transferring him Malegaon blast cast 2006, creat doubt about the role of police, which need to be scrutinized minutely.
NIA SUPLEMENTRY CHARGE SHEET ABUT SHABBIR MASSIULLHA
Shabbir Ahmad Battar wala charge sheeted by ATS as one of the key conspirator in the present case. As per charge sheet he produce the explosive material fro Mumbai with the help of Mohd Ali and Asif Khan Bashir khan .He provided shelter to two Pakistani parpared six bomb in his godown, in the last week of July 2006 ,which were kept hidden in the godown till blast. Four were used for causing bomb blast on 8-9-2006 two remaining bomb could not be recovered or accounted for during investigation.
Further investigation by NIA has revealed that Shabbir Battarywala was brought to Ghatkoper Crime branch office on 3-08-2006 and was interrogated by Mumbai police from 3-8-2006 till his arrest on 11-8-2006 in Ghatkopar Crime branch in LAC-34/2006 and remained in police custody of Mumbai police from 12-8-2006 to 25-8-2006 .On the day of blast at Malegaon he was in judicial custody.
ZAHID ABDUL MAJID (ACCUSED NO.8)
It Is that in the charge sheet find by ATS it is shown alleged that Mohd Zaid Abdul Majid Along with Abrar Ahmed (A-9) has planted the bomb at mushavarat chowk
However it is pertinent to note that on the day of blast , Mohd.Zahid Abdul Majid was at Phulsanglt, Dist Yawatmal, 500 to 600k.m. away from Malegaon, he has performed five time prayer at Pulsangli, where he was Imam. He is shown to be planter of at Mushwarat chowk blast. Zahid Had two cases under section 153 (1)I.P.C.so to invoke MCOC, he is made accused in this case
There is memorandum given by the villagers that on the day of blast Zahid was at Phulsangli and affidavit is also executed by the villager before the executed magistrate conferring that on the day of blast was he was at Phulsangli.which is at Exh.G
There is also affidavit executed by villagers, before the executive magistrate , immediately after the arrest of Zahid Abdul Majid, that on the day of blast he was at Phulsangli.EXH. H
Zahid had two cases against him U/s 153()1 of IPC and he is made accused for invoking the provision of MCOC against the accused.
F.I.R is at Exh I
, which allegedly came to be recorded on the cassette , of which two copies were made ,The cassette were packed and sealed with signature of panchas.
It is surprising to note that through confession of Zahid and Abrar ,it is shown that it conversation between them.Detail of which is given below)Exh J 1
NIA SULEMENTRY CHARGE SHEET ABOUT MD. ZAHID:
NIA report reveals that .they have recorded statement of 12 persons and all of them stated that on the day of blast Zahid was at Fulsawangli Dist. Yavatmal, which is 400 km. There is evidence that five time prayer was performed by Zahid and also he also attained programme held on day of Shabe barat.
NIA recorded statement of witnesses DII- 31 to DII 41 , which disclose that from morning of 8-9-2006 till night Maulana Zahid was at Fulsangli. After Namaz Maulana Zahid had given speech. They also stated that they know jahid ,he was Immam of Arabi Madrassa frm 2004 to 2006
Witness No.DII-32 stated that we offered our Fazar ki Namaz at Arabi Madarssa around 5,30 in the morning Malunan Zahid was present.Aound 12.30 p.m. he went to Jamma Masjid ,Maulana Zahid was present in Namaz.
NIA also recorded the statement of Hamid Husain Javeed Iqbal that he is running foot wear shop in the name and style National Foot corporation ,Shop No.8, Mohammdiya Shopping Center, Malegaon. Abrar Ahmad purchased chappals from his shop for Rs.650 and paid Rs.300 and Rs.350 is still unpaid. On 3rd October 2006 he saw Abrar ,and demanded remaining amount, on which Abrar Ahamd said “ He had started construction work along with 7-8 persons and some of the partner had done theft and they have caught and they told his name and also threatened him, Abrar Ahmad told him to call on his mobile which he will record and gave the employers to hear the same, so that employer will believe him and give him money and his problem will be solved As told, I call Abrar Ahmad on his mobile No. 9823340809 from coin box situated near Pahelwan Hote Saying “ Madar chod jintana bola tha too boll chukka ab sun hum long ko jitna saman gayab karna tha hum kar chuke ham log us ko gaon mein nahi la sake”
Abrar Ahmad recorded the above conversation on his mobile phone and thanks him that “ Ab mera kam ho jayega”
On 16th October 2006 Hamid Iqbal came to know through Urdu times and Inqlab news papers that Abrar Ahmad is police informer and he will do any thing with money. On learning Hamid Husain went to Jamiyat Office, and prepared his written statement .On 20th October 2006 he executed affidavit before the Notary. The affidavit bear his signature and submitted the same to NIA. The affidavit is filed along with NIA supl.Charge sheet. The affidavit is annxed at Exh J 2
IThe said Hamid Husain Javeed Iqbal did not dream beforehand that this fact would be mentioned in the charge sheet ( it is to be noted that chage sheet if filed in the court on 21-12-2006 and given to the accused very late in 2007)
In short we can say police replace the voice of Hamid Husain with that of Zahid and further shows that ZAHID has connection with Abrar.
ATS filed charge sheet without FSL report of Voice Conversation of Zahid
ABOUT ABRAR AHMAD GULAM AHMAD
It is to be noted that on 13-9-2006 SP.Rajwardhan succeeded in roping police informer one Abrar Ahmad Gulam Ahmad, helped in fabricating false story.
On 13-9-2006 Abrar was stopped and checked at Nakabandi at Rasethupul ,near Maruthi Mandir, and then taken to Sp.Rajwardhan , here he was shown some photographs and check whether he could identify those person. The Abrar was taken into confidence by Sp.Rajwardhan .Abrar has disclose the overheard talk of Medicare Hospital to Sp.Rajwardhan , after hearing Sp.Rajwardhan became unrest and requsted Abrar to stand witness and to solve blast case. As kind gesture Sp.Rajwardhan had given mobile phone bearing No.9823436809 and asked him to be in contact on his mobile No.9422250775 and instructed Abrar to act according his instruction.
Sp. Rajwardhan provided another mobile No. 9825826597 to Abrar’s wife Janatunnisa and these were the special mobile whose conversation Sp.Rajwardhan could hear simultaneously.
In the first week of October 2006 on the instruction from Rajwardhan ,Abrar was asked to get conversation recorded on his mobile of a person of his confidence, the transcript of which was written on a paper. Accordingly Abrar got the same recorded with the help of one of his friend Hamid Husain Iqbal Ahmed on 7-10-2006, who uttered the said transcript by calling Abrar from public booth of Pahelwan restaurant , situated at Kidwai Road Malegaon.
The transcript was recorded by Abrar.
This fact is put out on affidavit by Hamid Husain Javeed Iqbal dated 20-10-2006 , after there was a news item appearing in local news papers stating that Abrar could be approver in Malegaon blast case as per press release.Affidavit of Hamid Husain Iqbal Ahmad is annexed at Exh K
The said Hamid Husain Javeed Iqbal did not dream before hand that this transcript would be mentioned in the charge sheet(Here to note that charge sheet was filed in court on 21-12-2006 and given to accused very late in 2007) .
It is important to note that in charge sheet filed by ATS no FSL report voice conversation of Zahid was filed but to fill up lacuna , in the supplementary charge sheet filed by the CBI 0n 11-2-2010 , there Forensic Voice Examinaion Report dt. 30-6-2008 and showing it to be voice of Zahid
In short we can say police replace the voice of Hamid Husain with that of Zahid and further shows that ZAHID has connection with Abrar.
The above clearly shows that Mr.Rajwardhan has fabricated the evidence and falsely involved the muslim in Malegaon blast Case 2006
Abrar Ahmad and his wife were under police custody and control since 13-9-2006 till his arrest on 16-12-2006 and he was sent under custody of ATS police to different places such as Nasik, Deolali Camp, Indore,etc. under the instruction and was continuously in contact of Mr.Rajwardhan.
On 16-10-2006, there appeared news report that Abrar informer turned approver in Malegaon blast case.2006.After this news report the family members made frantic search of Abrar. On 17-9-2006 a missing report was lodged at Killa police station Malegaon , which is at Exh .On 18-10-2006 “The Times Of India reported that police have picked up an informer Abrar Ahmad.which is at Exh M
Since there was inaction from the police .Therefore on 18-10-2006 , a Habious Corous Petition bearing No. 2328/2006 was filed before Honble High Court Mumbai , which was kept on next day with specific direction to the police to remain present .On 20-10-2006 DY, Pathak , Assistant of Sp.Rajwardhan appeared and made an statement before the Honble court , that they do not know and person by name Abrar Ahmed and no such person is in their custody. The Honble court directed the police to search and produce before the court and made returnable on 10-11-2006.
On 23-10-2006 at 7.26 p.m. Abrar got an opportunity to call up from a public telephone booth kept at Priya Provision store, (near Bhonsale Millatry School) Deolali Camp Nasik Raod,Nasik , on his brothers Farids Mobile No. 93727110109 and gave detail of his whereabouts that he is calling from Deolali Camp.He was taken to Indore. His photos were taken with persons looking like Kashmiri. and he was kept in old building under the surveillance of police. The places where Abrar was taken by the police is the place of Prohit Deolali Camp. And Pragya Singh Thakur from Indore, Kashmiri like persons means Dayanad Pandehe, who are accused of second blast of Malegaon that took place on 29-9-2008,from these places they operates their blast activities.
Advocate Jalil Ahmed has sent letter dated 23-10-2006 disclosing above fact to various police authorities. The letter is annexed at EXh N-
On 1-11-2006 Abrar appeared before the Honble High Court that he had gone the Indore with his wife on his own accordand he was not in police custody..Thus petition was disposed off. EXH.O
In short we can say accused of 2006 are innocent and letter were sent to various police authorities on 23-1-2006, which indicate that Abrar was taken to Indore,Deolali Camp and his photos were taken with Kashmiri like person.This it self proves that accused of 2008 blast have connection with 2006 blast.
However On 18-4-2009 Abrar executed Affidavit with permission of court MCOC Court in MCOC CASE NO.23/2006, disclose the fact aboutr.Rajwardhan and contact with other officer . The CBI did not think it fit to investigate about the authenticity and genuiness of averment made by Abrar Ahmad in Affidavit dated 18-4-2006 The attitude of CBI also smacks of bias, unfair and partial investigation being done , without wanting to verify and investigating all aspect mentioned in Affidavit executed by the Abrar.
It is to be noted that investigating agencies including the CBI are suppressing vital material fact, as much as though the mobile No.9823436809 of Abrar was under interception and connected to police number , pursuant to the order dated 20-9-2006 from 20-9-2006 to 18-11-2006 by order of Addl. Chief Secretary (Home) Maharashtra but no call data record is available with mobile company, nor with ATS Mumbai, or CBI.There is deliberate attempt to suppress this vital and material evidence, since it would expose the bias, unfair and tampered investigation conducted by investigating agencies. The order of Home Maharshtra is annexed at “EXHQ”
It is to be noted that the call of Abrar was intercepted during the course of investigation, at this stage they could not raise plea that record after one is not available with mobile company,as ATS have intercepted the call of Abrar during the course of investigation.
NIA SUPLEMENTRY CHARGE SHEET ABOUT ABRAR;
It is evident from the record that Abrar Ahmad was arrested by ATS.Mumbai on 16-12-2006.He gave confessional statement in this case implicating him and other accused person .His parperted confessional statement was recorded by DCP level Officer of Mumbai police on 19-12-2006 and 20-12-2006 and was subsequently parpetaly confirmed before CMM on 20-12-2006 .Abrar parpetaly moved application before the special court for becoming approver in this case,which was heard and taken on record by the court on 22-12-2006.Subsequently on 18-4-2009 he submitted an Affidavit before the court retracting from his earlier stated role in Malegaon Blast of 2006.Affidavit is annxed at ExH.P
The affidavit shows how police implicate him and other accused in Malegaon blast 2006.
ABOUT SALMAN FARSHI:
NIA has recorded the statement of witness DII-42 who is resident of plot No 33/O/1 Shivaji Nagar Govandi, that on 8-9-2006 it was day of shabe barat .When he went home after 2p.m for food .At that time he came to know from T.V. about the bomb blast at Malegaon in Masjid.Taking some rest around 4pm. He came to opend his shop .At that time he found Dr. Salman wasleaving for his dispensary.As he from Malegaon he just asked him about the bomb blast took place at Malegaon. Dr. Salman inqured from him how he came to know.he told him that he came to know from T.V. news.
At the time of blast he was at his dispenssar and was buys in attending their patient .
NIA has collected two register of Sumeet , containg the detail of the paitiant attended by Dr. Farogh in his own hand writing the register contained date wise detail of paitiant , medicine given and fess charge.
Register is dated from 30-1-2006 to 30-6-2006 and another from 1-7-2006 to 6-11-2006.
PROTECTED WITNESS 369.
Protected witness A-369 was key witness in the investigation of ATS, his statement U/s 164 C.P.C. is also recorded on 23-11-2006 to the fact that he is eye witness of preparation of bomb at the godown of Shabbir .It is alleged by ATS that after blast he so moto went at the office of ATS at Kala Chowki Mubai with intent to avoid further destruction of life and prperty, and narrated how accused person gathered together at the godown of Shabbir and prepared bomb.He also executed affidavit at Allhabad before the magistrate and narrated the real fact.The affidavit is annexed at Exh R
Despite all efforts the CBI was unable to trace this witness. Protected witness 369 was examine by NIA and he retracted from his statement recorded u/s 164.Cr.P.C. on 23-11-2006 He stated that his statement was taken under duress.He also immediately after recording of his statement by ATS he executed affidavit at Alahabad and says that he never went at the office of ATS kala chowki sou motu and stood as eye witness for preparation of bomb at godown of Shabbir Massiullha.
NIA has also recorded his statement, confession U/s 164 .He stated he was on duty in power loom factory, at Bhiwandi..When reached , police was already present there. He caught him and taken to Kala chowki Bhiwandi.They beaten him dailyand kept for a month. And asked him to say that he has purchased the cycle..Police also told him take of other person, who has prepared bomb.Police have directed him to gave statement as per their dirction else they will arrest his family member in the case.He made statement before the courtas per the say of police..
He gave statement before the camera as per the say of police.Police also take at Arther road and told to identify two person.He said he could not identify him. Police shown photographes .They also given decription that there is yellow hear under the lips and other identification, as per police decription I identify the persons.He never seen that person before the identification.He further say that the accused person have not prepared the bomb in the godwn and he has not seen any thing in the godown.They are falsely implicated the Muslim accused in the Malegaon Bomb blast case. NIA has also annexed his affidavit execute by him at Allahabad court, on 16-1-2007 .
.CONFESSIONAL STATEMENT OF ACCUSED:
Confessional statements of accused person were taken before the police and verification of the same was before Metropolitian Magistrate. Confessional statement was obtained by applying third degree torture. All of them retracted from their confession. Except the confessional statement and statement of protected witness No.369, there is no corroborative evidence so as to link accused person with the crime.
NIA Supplementary charge sheet indicate that during further investigation , all the nine who were in judicial custody ,they were examine after taking permission from court.All the accused who had earlier recorded that their confessional were recorded under duress and pressure and they denied to accept the contents of confessional statement.
MATCHING OF SOIL OF FAKE BOMB WITH SHABBIR AHMAD FACTORY SOIL:
Matching of soil sample collected from factory of accused Shabbir Massiullah with soil sample found in fake bomb recovered on 13-9-2006
NIA recorded statement of Protected witness C-3 and C-4 both are resident of Malegaon and were witness to lifting of soil samples from the godown of accused Shabbir Battarywala ,which led to the detection of case and arrest of accused person by ATS, Mumbai , were examined by NIA they says that they were not present at the time of lifting of above samples.
It led to conclusion that fake bomb episode is at the eve of police. The matching of soil shows that chemical of fage bomb were with police and they have mixed or spread in the soil of shabbir and soil was lifted in absence of witnesses.
NIA CASE AGAINST HUNDU TERRORIST
A-14)Manohar Nawaria, A-15) Rajendra Xhaudhari A-16)Rajendra Chudhari
A-17) Lokesh Sharma (All arrested) A-18) Sunil Joshi A-19)Ramesh Venkat Mahalkar @ Hakla@ Amit A-20)Ramchnadra Kalsangra A-@1) Sandeep Dange (18to 21 are absconding)
The investigation reveals these accused alongwith others with intention to commit terrorist activities at various Muslim religious places in India.At Bagali, demonstration of bomb explsion and training of firing arms was imparted which later on culminated into explosion at four places at Malegaon 0n 8-9-2006. A T.V. with video was also arranged in hut were accused saw a movie Black Firday CD a movie on Bombay riots t strss Muslim atrocities on Hindu..
The investigation reveals that all the accused used to congregate at the house located at Sarvasamppan Nagar,at Indore, during July 2006.In the said house equipment required for the preparation of IED were stored by wanted accused Ramchandra Kalsangra And Amit.The bombs were prepared in the said room by accused .In the subsequent meeting it was decided to conduct reconnaissance at Malegaon to plan and execute bomb balstat Malegaon. Accordingly accused person visited Malegaon thrice , before 8th September 2006 .7 day before the blast accused visited and selected the spot for blast.
During the course of investigation, it reveals that on 7-9-2006, in the evening wanted accused Ramchandra Kalsangra,arrested accused Dhan singh, Rajendra Chudhari, Manohar started from Indore with four bomb (in four metallic boxes ) into bags .They boarded the bus at Indore and reached Malegaon in the morning of 8-9-2006.After getting fresh in the Sulabh Sauchalay in the Malegaon bus stand , arrested accused Rajendra Chudhari and Manohar went to purchase two bicycles and remaining two accused waited in the bus stand .After purchasing the bicycle they came back to bus stand .They hanged two begs in two bicycle and travel towards the previously decided spot Mushwarat chowk and Hamidiya Masjid –Bada Kabrastan.Accused as per the plan planted three bomb at Bada Kabrastan and one at Mushwarat chowk. After planting four bombs all of them boarded a bus to Jalgaon at Malegaon bus stand and left Malegaon.They reached Jalgaon in the evening and took some food there.At Jalgaon they boarded pravit travels bus to Indore.They reached Indore in the morning next day i.e. 9-9-2006
As per the pre decided strategy on arrested accused Lokeshsharma reached New Dehli, and made callsehli to media house from some STD/PCO near Paharganj New Dehli “Dhartrate sena” takes the responsibility of Malegaon blast however they did not get any response from media house.
With the permission of the Honble court Judge the identification prade was conducted by the executive Magistrate in the Arthur Road jail premises on 28-1-2013 both the accused purchase the cycle were identified by witness who fitted the cycle. There is confessional statement of the accused.
There is also discloser panchaman u/s 27 of I.E.Act.by accussed .
ABOUT SALMAN FASHI:
ABOUT SALMAN FASHI:
NIA has recoded the statement of witness No. DII-42 that on 8-6-2006 .it was day of
That the supplementary charge sheet filed by the invstigation agency NIA prima facie disclose that the statements of all the witnesses recorded by ATS under section 161 of Cr.pc and under 164 of Cr.pc was obtained by compelling the witnesses under threat, duress, coercion and compulsion. Which are totally false evidence collected by ATS to implicate the present applicants.
That perusal of supplementary charge sheet filed by NIA shows that at the time of alleged incident of Blast several accused were not present at the place of incident, and further disclosed that one of accused Shabbir Mashiullah was in custody of Crime Branch Mumbai.
That perusal of supplementary charge sheet filed by NIA shows that the alleged confessional statements of applicants were obtained under threat, compulsion and coercion, which shows the said is voluntary.
The applicant submit that they had not given any confession, there signature was obtained on blank papers and they were threatened by ATS officer and other high rankig police officer not to complaint about the same otherwise they will implicate their family members.
The applicant submit that in the light of supplementary charge sheet, the perusal of above said charge sheet filed by ATS, does not contain any legally admissible prima facie material, which can be converted into evidence, for connecting the appellant in any way the alleged offence, and the conspiracy of the same, to frame the charges against the present appellant for the alleged offences.
That the appellant submit that at the stage of discharge i.e. under section 227 of Cr.PC, the Learned Judge has to apply his Judicial mind to the material adduced in the charge sheet, can never be taken as gospel truth and if two views are possible, the view favoring the accused should be adopted and if no sufficient grounds for proceeding against the accused are found, the accused should be discharged.
The appellant submit that the fundamental rule of evidence is that the material which cannot be translated into evidence, at trial stage, cannot be considered and looked into, at the stage of granting bail or discharging accused person.
The appellant submit that the settled position of law that the Hearsay evidence is inadmissible under the law, and further the statement recorded under section 162 of Cr.PC and 25 and 26 of Evidence Act, is neither admissible against maker, nor against any other co-accused.
The appellant further submit that settled position of law the the statement of accused recorded under section 27 of Evidence Act is not admissible against co-accused.
The appellant submit that statement recorded under section 162 of Cr.PC and under section 25 of Evidence Act is admissible in favour of the maker /accused.
The appellant submit that considering the aforesaid fundamental rules of Evidence, there is absolutely no legally admissible material in the entire charge sheet to show that any such conspiracy meeting, as alleged ever took place for the alleged offence..
That further proceeding in the matter against the Appellant will be the waste of time of this Hon’ble MCOCA Court.
The Appellant crave leave to refer and to rely upon the various authorities in support of the present Application.
The Appellant crave leave to add, amend, delete, change, modify, and alter any of the foregoing grounds with the prior permission of this Hon’ble court.
Under the circumstances it is prayed that;
i. This Hon’ble court may graciously be pleased to discharge the present applicant from MCOCA Special Case No. 23 of 2006.
ii. That Hon’ble Court also be paleased to pass an order for initiating departmental inquairy agains the erring Police and ATS Officers who falsely implicated the above accuced person.More over since the above said accuced persons have been ground lessly arrested and falsely implicated in the said offence hence the Hon’ble Court be pleased to pass an order to pay compensassion to the accuced person
iii. To pass such other and further order and to grant other and further relief’s as this Hon’ble Court may deem fit and proper.
AND FOR THIS ACT OF KINDNESS THE APPELLANT AS IN DUTY BOUND SHALL EVER PRAY.