The central legal point established in the judgment is the onus of proving lawful possession under Section 5 of ES Act, the admissibility of evidence under Section 27 of the Indian Evidence Act, and the intention inferred from the attending facts and circumstances.

MUKTA GUPTA, J.

1. By this appeal the Appellants challenge the judgment dated 15December, 2009 passed by the Learned Additional Sessions Judge convicting the Appellants for offences under Section 5 of the Explosive Substance Act, 1908 (in short ES Act) read with Sections 18 & 23 of the Unlawful Activities (Prevention) Act, 1957 (in short UAP Act) and Section the 120B IPC and the order on sentence dated 16December, 2009 directing them to undergo rigorous imprisonment for a period of 5 and 6 years respectively & fine of Rs.25,000/-each for offence under Section 5 of the ES Act, and 7 years rigorous imprisonment & fine of Rs.50,000/-for each offence under Section 18 & 23 of UAP Act and 5 years rigorous imprisonment under Section 120B IPC. In default of payment of fine they have been directed to undergo rigorous imprisonment for a period of one year on each count.

2. Learned counsel for the Appellant submits that the Appellants are not liable to be convicted for offences punishable under Section 18 & 23 of the Crl.A. 1411/2010 Page 1of 21UAP Act. The said provisions are attracted only if the accused have committed terrorist attack punishable under Section 15 of the UAP Act. Reliance is placed on Pulin Das Vs. State of Assam (2008) 2 SCC (Crl.) 520 to contend that only if the ingredients of terrorist attack are satisfied then one can be held guilty of committing such offences. The prosecution has failed to prove that there was any intention on the part of the Appellants as required by Section 15 of the UAP Act. Mere recovery of arms or explosive material is not the proof of intention to threaten sovereignty, integrity etc. of India. Reliance is placed on State of Rajasthan Vs. Ajit Singh and ors. 2008 Crl.L.J. 364 (SC) to contend that mere recovery of arms is not sufficient to prove that accused intended to use the same for terrorist activity. Further no case for enhanced penalty under Section 23 UAP Act is made out as there is no evidence that there was any intention to aid any terrorist. Further, there is no admissible evidence to show existence of any ?terrorist? which may come within the definition of Section 15 read with Section 2(k) of the UAP Act. The disclosure made by Appellant No.1 Firoz Abdul Latiff Ghaswala that they were going to deliver the explosive material to one Abu Hamza, the alleged Pakistani national at Jawahar Lal Nehru stadium and the consequent encounter in which the alleged Abu Hamza was killed by the Police party is not admissible in evidence. There is evidence led qua the alleged encounter. Further, no documents regarding the same have been placed on record. The public witnesses PW-2 and PW3 who allegedly witnessed the recovery and the disclosure statements have not supported the prosecution case that an information about alleged terrorist Abu Hamza was given to the Police in their presence. It is the case of the prosecution that Abu Hamza was residing as a tenant under the assumed name of Rajesh in the house of Uttam Chand Bareja PW-4 at Ballabhgarh, Haryana and huge recovery of arms and explosives was allegedly made from the said house within few hours of the said encounter on the night of 8May, 2006 itself. However, the dead body of Abu Hamza has not been got identified by the said landlord Uttam Chand Bareja. There is no evidence to prove that the said Abu Hamza was a terrorist or a Pakistani national. The Appellants cannot be held guilty under Section 5 of the ES Act as the recovery is not reliable. The alleged public witnesses PW-2 and PW-3 were joined in the investigation only after the Appellants were apprehended. No effort was made to join public witnesses by the raiding party, though there was an advance information. Even while allegedly following the Appellants to the Railway quarter from where they were apprehended, no efforts were made to join any independent person. Reliance in this regard is placed on Vijay Kumar vs. State 2007 (1) JCC 16 DB Delhi. Further the testimony of the two pu