# MAHMOOD RAJASA SAIYED v. STATE OF GUJARAT

- **Citation:** [2008] 15 S.C.R. 1035
- **Court:** Supreme Court of India
- **Decided:** 2008-11-11
- **Case number:** Criminal Appeal No. 1771 of 2008
- **Bench:** Or. Arijit Pasayat Anop. Sathasivam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahmood-rajasa-saiyed-v-state-of-gujarat-23767
- **Pages:** 4

## Headnote

. ..
l.4,
Prevention of Terrorism Act, 2002 - s. 49(6), (7) ands.
34 - Arrest of appellant for offences punishable under /PC,
Arms Act and POTA - Bail application u/s. 49(6) and (7) -
c
Dismissal of -
On the ground that appellant found in
possession of fire-arms - Ten live cartridges recovered from
co-accused and his statement recorded uls. 32 - Notification
u/s. 4 of POTA in effect when accused charge-sheeted for
offence of criminal conspiracy - Appeal u/s. 34 - Rejection
D
of bail - Interference with - Held: Not called for. .

## Text

[2008] 15 S.C.R. 1035
(
).
MAHMOOD RAJASA SAIYED
A
v.
STATE OF GUJARAT
(Criminal Appeal No. 1771 of 2008)
NOVEMBER 11, 2008
8,
[OR. ARIJIT PASAYAT ANOP. SATHASIVAM, JJ.]
. ..
l.4,
Prevention of Terrorism Act, 2002 - s. 49(6), (7) ands.
34 - Arrest of appellant for offences punishable under /PC,
Arms Act and POTA - Bail application u/s. 49(6) and (7) -
c
Dismissal of -
On the ground that appellant found in
possession of fire-arms - Ten live cartridges recovered from
co-accused and his statement recorded uls. 32 - Notification
u/s. 4 of POTA in effect when accused charge-sheeted for
offence of criminal conspiracy - Appeal u/s. 34 - Rejection
D
of bail - Interference with - Held: Not called for. .
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1771 of 2008.
From the final Judgment and Order dated 17.7.2006 of the
E
High Court of Gujarat at Ahmadabad in Criminal Appeal No.
1432 of 2004.
Nima Ramakrishan and. M.A. Chinnasamy for the
Appellant.
F
Hemantika Wahi for the Respondent
The Judgment of the Court was delivered by
OR. ARIJIT PASAYAT, J. 1. Leave granted.
G
""'
,
~
2. Challenge in this appeal is t~ the order passed by a
'
Division Bench of the Gujarat High Court dismissing the appeal
filed under Section 34 of Prevention of Terrorism Act, 2002 (in
short 'POTA').
1035
H
1036
SUPREME COURT REPORTS
[2008] 15 S.C.R.
A
3. Factual details have been indicated in Criminal Appeal
(Arising out of S.L.P (Crl.) No.4876of2006) disposed of today.
4. Appellant was arrested in connection with POTA Case
No.12 of 2003 arising out of ICR No.6 of 2003 of the DCB
B Crime Police Station, Ahmadabad for offences punishable
under IPC, Arms Act and POTA. An application for bail was
filed in terms of Section 49(6) and (7) of POT A. The bail
application was rejected primarily on the ground that the
appellant was found in possession of country made revolverand
foreign made. pistols and undisputedly same was recovered
C from his possession. Ten live cartridges were also recovered
from another co-accused. The statement of the co-accused was
recorded under Section 32 of POT A. The High Court held that
it is not a fit case for grant of bail. Though, there was allegation
of illegal custody no material was placed in that regard. In view
D of the reasons recorded by the High Court and the trial Court
for rejecting the bail application, we are not inclined to interfere
with the appeal.
E
F
G
H
5. The Trial Court has observed as follows:
"It is true that, the statement of Anas does not disclose this
· fact but, when the notification u/s 4 of the POT A is in effect
and when the accused are charge-l?heeted for the offence
u/s 120..:s, criminal conspiracy, the Court sees no reason ·
as fo why at this juncture the discretion should be used in
his favour especially when the criminal conspiracy is
alleged to be intended by the accused to· terrorize the
people of a particular section as well as to shake the
integrity and unity of the nation in the aftermath of Godhra
incident where some of the accused have also taken the
training from the neighbouring country Pakistan in deadly
weapons, arms and ammunitions and who also intended
to make use of that training by procuring weapons to
execute the said conspiracy which are allegedly supplied
by the present applicant accused."
/
·._ ....
>-
:
>--- (
I
MAHMOODRAJASA SAIYED v. STATE OF GUJARAT
1037
[DR. ARIJIT PASAYAT, J.]
).
'
6. The High Court has also observed in this regard as
A
follows:
·"The appellant was found in possession of country made
revolver ~nd foreign made pistol and the same was
recovered from his pocket. The panchnama in respect
B
thereof was prepared. The joint panchnama, which was
~
prepared also mentions about the 10 live cartridges which
were recovered from another accused Mohd. Tarik. The
statements of the co-accused recorded under Section 32
of the POT A have been perused by us and prima facie, c
the statements given by the co-accused indicate
involvement of the appellant in the commission of crime.
The contention raised by the learned Advocate for the
· appellant that the statement of the co-accused Anas
Machiswala does not disclose prima facie involvement of D
the appellant is without any substance, as no!ifi~tion under
Section 4 of the POT A was in effect when ttie accused
was charge-sheeted, and since the accused was chargesheeted for the offence punishable under Section 1208,
which is for criminal conspiracy, we see there was no
reason to enlarge the appellant on regular bail. With regard
E
to the statement of co-accused, which was recorded under
section 32 of the POT A, save and except the statement
recorded under section 32 of the POTA, further
corroboration was also forthcoming, Thus, the Court has
to look into the entire material which was available against
F
the accused. The prima facie evidence was available
against the appellant and as he was found in possession
of the fire-arms, the learned Special Judge has rightly not
used the discretion to enlarge the appellant on bail and we
also see no reason to interfere with the order passed by
G
'. ~
the learned Judge in appeal preferred by the appellant
under Section 34 of the POT A. As regards the next
submission of learned advocate for the appellant that the
accused has remained in judicial custody for nearly two
years, .we have considered the provisions of sub-sections
H
A
B
1038
SUPREME COURT RIIPORTS
[2008] 15 S.C.R.
(6) and (7) of section 49 qf the POT A and the rigorous
imposed therein. The rigorous would definitely go with the
completion of. the period of one year as -contemplated
under sub-section (7) of section 49 of the POT A, but
considering the provisions of section 439 of the Code of
Criminal Procedure along with evidence available against
the accused, in our view, the accuseq, has not made out a
case for this enlargement on regular bail."
7. However, it is stated by learned counsel for the
C respondent-State that the trial is at the advance stage. The trial
Court is requested to complete the trial as early as practicable.
8. The appeal is dismissed.
N.J.
Appeal dismissed.