The Special Cell of Delhi Police said this in its written submission filed before Additional Sessions Judge (ASJ) Bharat Parashar on framing of charges against Tunda, one of the 20 terrorists India had asked Pakistan to hand over after the 26/11 Mumbai attacks.

"Therefore, in the circumstances this court may frame charges under sections 3 (3) and 5 of TADA along with section 5 of Explosive Substances Act read with 120-B (criminal conspiracy) IPC," the police said.

It also said a judgement passed by the designated trial court in November 1999, acquitting five arrested co-accused in the case on charges under the provisions of TADA, cannot be "held to be the exact interpretation of section 3 of TADA".

"It is submitted that in the light of the view expressed by the Supreme Court the views expressed by designated court cannot be held to be the exact interpretation of section 3 of TADA. Hence, this court in the light of interpretation given by the Supreme Court may frame the charge under section 3 (3) of TADA Act against accused Abdul Karim Tunda," it said.

However, advocate M S Khan, who appeared for 72-year-old Tunda, countered the contentions saying the verdict of the designated court was not challenged by police before higher courts and thus it has attained finality.

"It is pertinent to mention herein that the said judgement of the designated court was not challenged and the same had attained the finality and the acquittal of the accused for the offences of conspiracy is in force and effect of the judgement is that prosecution could not establish criminal conspiracy and once the accused have been acquitted of the charges of criminal conspiracy, the accused Abdul Karim cannot be said to have conspired with them and as such no charges for the offences under section 3 (3) and 5 TADA are made out against the accused," Khan said in his written submission.

The court has fixed the matter for consideration on the charge on July 28.

Advocate Khan also contended there was no material evidence to connect Tunda with the five accused persons, Aftab, Abdul Haq, Afaq Khan, Irfan Ahmed and Abdul Wahid.

"There is no material to connect the accused with the present case as nothing was recovered from his possession; no material/evidence to connect the present accused with the earlier accused persons; no material/evidence to connect the present accused with the alleged recovery of the material. Confessional statements of the accused cannot be relied upon against the accused," he said.

The court had earlier indicated that charges under TADA may not be framed against Tunda but had observed that there was a prima facie case made out under the Explosive Substance Act against Tunda who was chargesheeted in the case.

The police had claimed there was circumstantial evidence against Tunda as 40 kg explosives were recovered from the house of his brother in Delhi, where he was also residing, in 1994.

It had said that the trial court had, in its judgement passed in 1999 against the arrested accused Aftab, Abdul Haq, Afaq Khan, Irfan Ahmed and Abdul Wahid, convicted them under section 5 of Explosive Substances Act read with section 120-B (criminal conspiracy) of the IPC.

The police, in its charge sheet, said Tunda was declared a proclaimed offender by the court earlier and in its verdict passed in December 1999 against the five arrested persons, the court had made specific observations regarding exclusion of Tunda from the order of acquittal.

Tunda was arrested by the Special Cell on August 16 last year from Indo-Nepal border.

Police had said the five accused were arrested on January 17, 1994 and 150 kg explosives and six daggers were recovered from their possession.

(Agencies)

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