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
IN
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
Ramzanpura
Malegaon Dist. Nasik
5. Abrar Ahmad Gulam Ahmad
Islampura
Malegaon Dist
Nasik
V/S
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.
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.
ABOUT NOORULHUDA
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
In the charge sheet filed by the ATS there is
panchnama dated 13-12-2006 showing that Mohd Zahid was given written
transcript of telephonic conversation
and then he was asked to take his name and read the conversation which run like this
---------------------------------------
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, 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”
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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.
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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 surprising to note that through panchnama it is
shown conversation between Abrar and Zahid. Under panchnama of Cr.No. 96/2006
,which run like this which is at Exh J1
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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.
ABOUT
DR.FAROUGH>
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:
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.
PLACE: MUMBAI
Date:
