The trial court had rightly granted benefit of doubt and acquitted the respondent Nos.1 and 2 from the charges under Sections 121/121A/122/123/120B IPC; Sections 4 and 5 of the Explosive Substances Act, 1908; and, provisions of the Unlawful Activities (Prevention) Act, 1967.

Sanjiv Khanna, J.

1. The Government of NCT of Delhi in this appeal questions and challenges acquittal of Mohd. Hassan @ Abu Qasim and Shafaquat Iqbal, from charges under Sections 121/121A/122/123/120B of the Indian Penal Code, 1860 (IPC, for short), Sections 4 and 5 of the Explosive Substances Act, 1908, Sections 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 in FIR No.28/2007, Police Station Special Cell, Lodhi Colony, New Delhi. The appeal does not dispute the acquittal of Shabbir Ahmed in terms of the amended memo of parties and amended petition filed on or about 8th July, 2013.

2. The impugned judgment convicts respondent No.1 Mohd. Hassan, a citizen of Pakistan, under Section 14 of the Foreigners Act. By order dated 5th October, 2012, Mohd. Hassan stands sentenced to undergo rigorous imprisonment of 5 years, pay fine of Rs.1,000/- and in default to undergo simple imprisonment for one month. The said conviction and the order of sentence have not been challenged by the respondent No.1, Mohd Hassan.

3. The impugned judgment while acquitting the respondents from the aforesaid charges, primarily relying upon evidence of two witnesses Mani Ram (PW3) and Hari Singh (PW7), guards posted at Delhi Haat, INA, who did not identify respondent Nos.1 and 2. The contention of the appellant State is that Mani Ram (PW3) and Hari Singh (PW7) were declared hostile on the question of identity but they were not hostile on the question of recovery. The identity and presence of the two respondents has been deposed to by the police witnesses namely Insp. Pawan Kumar (PW1), ASI Anil Tyagi (PW10), Insp. Kailash Singh Bisht (PW11), Insp. Ramesh Lamba (PW12) and ACP Sanjeev Kumar Yadav (PW14). The appellant calls into question several other findings in the impugned judgment. It is asserted that the trial court has speciously raised doubts without good and sound reasons about storage of explosive in the malkhana; registration of the FIR; failure of the prosecution to ensure that public witnesses were associated with the arrest and personal search; and the exact time when ACP Sanjeev Kumar Yadav (PW14) had taken over the investigation. At best, these are mere conjectures or insignificant contradictions and discrepancies. It was not necessary or required for the raiding team to call officers from P.S. Sarojini Nagar or the Bomb Disposal Squad. Nor was it necessary to obtain finger-prints on the recovered material. This is not mandated in law or a statutory requirement. The recoveries were effected on 26th April, 2007 and as per records, the exhibits, were sent to CFSL on 16th May, 2007, i.e. after 21 days. Trial court has wrongly assumed that there was delay of 81 days in sending the case property to the CFSL for expert opinion. Further, the trial court has reached an erroneous finding that the prosecution has failed to establish and link the respondents with Lashkar-e-Tayyaba (LeT, for short) without noticing the fact that one Abu Amar who was active in Bhadarwah, Distt. Doda, Jammu was killed in an encounter and, thus, any investigation on the said aspect was impossible. There was no discrepancy or failure to record DD entry when the investigation was started in the present case.

4. In order to appreciate the contentions, we would like to begin with the prosecution version in brief. In December, 2006, secret information was received that LeT had directed one Amar resident of Pakistan who was their Operational Chief Commander in Jammu and Kashmir to carry out fedayeen attack in Delhi on the occasion of 150th celebration of the first Indian War of Independence. Subsequently, on 26th April, 2007, information was received that one Iqbal, resident of Jammu and Kashmir would deliver a consignment of arms, ammunition and explosives to a Pakistani fedayeen in Delhi at the entry gate of Delhi Haat, near INA at 6.30 PM. This information was recorded in the Daily Diary and the case discussed with senior officers. A raiding team reach