After Serving 16 Years In Jail, Man Accused Of Possessing RDX, Detonators Granted Bail By Allahabad High Court

The Allahabad High Court last week granted bail to one Mohammad Tariq Qashmi who was arrested in december 2007 on the allegation of possessing 1.25 Kg of RDX and three detonators. Qashmi is also an accused in 2007 serial blasts case that targeted courts in Lucknow, Banaras and Faizabad districts of the state.

The bench of Justice Attau Rahman Masoodi and Justice Saroj Yadav ordered his release on bail as it took note of the fact that the aspect of recovery of explosive substance requires consideration and that he has already served out the sentence for about 16 years.

 Qashmi was convicted by the trial court in 2008 under Sections 4 and 5 of the Explosive Substances Act, under Sections 18, 20 and 23 of the Unlawful Activities (Prevention) Act, Sections 121-A, 353 IPC and he was sentenced to life imprisonment.

Challenging his conviction in the case, he had moved the High Court, wherein he had applied for bail as well.

It was primarily argued by his counsel that the recovery of RDX and detonators was planted and it was made by following the due procedure under law and was also not independently witnessed, hence it violated his right under Article 21 of the Constitution of India.

It was also argued that even if the recovery of any explosive substance was made from him, the same ought not to have been destroyed prematurely as non-production of recovered explosive before the competent magistrate or judicial magistrate of the area and the same not having been subjected to a complete executive process authenticating the valid recovery, the permission to proceed for trial under Section 7 of the Explosive Substances Act, 1908 was clearly erroneous and without authority of law.

On the other hand, the State's counsel argued that the recovery from the appellant was of a highly dangerous substance of which no common man agreed to become a witness, therefore, the oral testimony of the police personnel being admissible had rightly been relied upon.

On the aspect of production of the recovered substance before the magistrate, it was submitted that the same is not mandatory. Importantly, it was further argued that a sovereign act is not open to doubt when it involves a sensitive issue of endangering human life or property of the State

Against this backdrop, at the outset, the Court noted that the trial in the case proceeded merely on the basis of recovery and the said recovery had not been connected to any offence by the prosecution.

The Court further noted that even if it is assumed that the sovereign act is immune from doubt, the mandate of procedure where it involves the rights under Article 21 of the Constitution of India, the procedure must be fairly followed.

"Since the ground raised by the applicant/ appellant on the aspect of recovery of explosive substance requires consideration and the appellant has already served out the sentence for about 16 years, prima facie, a case for grant of bail is made out," the Court observed as it allowed the bail plea.

Consequently, Qashmi was released on bail during the pendency of appeal on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to deposit of entire amount of fine imposed on him at the time of his release.

Case title - Mohammad Tariq Qashmi vs. State of U.P. [CRIMINAL APPEAL No. - 605 of 2015]

Case Citation: 2023 LiveLaw (AB) 113

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