The sufficiency of evidence and corroboration in proving the guilt of the accused, and the consideration of rehabilitation efforts and time served in granting suspension of sentence and enlargement on bail.

ORDER :

Revati Mohite Dere, J.

1. Heard learned counsel for the parties.

2. By this application, the applicant seeks suspension of his sentence and enlargement on bail, pending the hearing and final disposal of his aforesaid appeal.

3. The applicant vide judgment and order dated 28th July 2016, passed by the learned Special Judge, under MCOCA, has been convicted alongwith other co-accused for the offences punishable under Sections 10(a), 13, 18, 20, 38, 39 of the Unlawful Activities (Prevention) Act (`UAPA’) and sentenced as under:

- for the offences punishable under Sections 18 and 20 of the UAPA, to suffer rigorous imprisonment for life and to pay fine of Rs.20,000/- in default, to suffer simple imprisonment for 1 year;

- for the offence punishable under Section 120B of the Indian Penal Code (`IPC’), in view of the sentence imposed for the above offences, no separate sentence is awarded;

As far as offences punishable under Sections 16, 23 of the UAPA, Sections 25(1A), 25(1AA), 25(1B)(a), 26 r/w Sections 7 and 27 of the Arms Act; Sections 4(b)(ii) and 5(b), 6 of the Explosive Substance Act; Section 9B(a)(b) of the Explosives Act and Sections 3(2), 3(1)(ii) and 3(4) of the Maharashtra Control of Organized Crime Act are concerned, the applicant has been acquitted of the said offences.

4. Mr. Solkar, learned counsel for the applicant submits that there is no evidence on record to show that the applicant visited Bangladesh to collect funds as alleged by the prosecution. He further submits that the prosecution has relied on two confessions, one made by Mohammed Amir Shakil Ahmed and the other by Sayyed Aakif Sayyed Zafaruddin, to show that the applicant was sent to Bangladesh alongwith another co-accused to collect funds. He submits that a perusal of the said two confessions made by the said co-accused, by no stretch of imagination, show that the applicant visited Bangladesh to collect funds or that he had collected funds and brought the same to India or that he had the knowledge, the purpose for which he was sent to Bangladesh. He submits that infact co-accused Sayyed Aakif has, before the Chief Metropolitan Magistrate, Esplanade, Mumbai, not admitted the contents of the confession mentioned in para 4 at Page 3 i.e. the applicant was sent to Bangladesh, though he has admitted some of the other paragraphs in the confessions made by him. He further submits that since the applicant has been acquitted of the offences under the MCOCA, the confessions so recorded under the MCOCA cannot be taken into consideration. Mr. Solkar further submits that the email sent by the applicant to Sayyed Aakif (A-11) relied upon by the prosecution, by no stretch of imagination, can be said to be incriminating and that although the learned Judge has observed the same, has relied upon the said email while holding that the applicant was part of a larger conspiracy. Mr Solkar submits that admittedly the print-out of the said email was not accompanied by a Certificate as mandated under Section 65B of the Evidence Act. He further submits that even the CDRs cannot be relied upon in the absence of a 65B Certificate. According to Mr. Solkar, only because the applicant’s phone was not active in the first week of May, the prosecution has concluded that the applicant had gone to Bangladesh, during the said period. He further submits that the two witnesses examined by the prosecution to show that the applicant was not in his shop in the first week of May, have turned hostile and as such, no reliance can be placed on their evidence. It is lastly submitted that the applicant is in custody since 2006 and as such undergone almost 17 years sentence.

5. Mr. Thakare, learned Special P.P for the State vehemently opposed the application. He submitted that the applicant was part of a larger conspiracy to strike terror in the people or any section of people with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India by using explosive substances