APPEALS FILED BY THE ACCUSED
(PART 3)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 555 OF 2012
Ibrahim Musa Chauhan @ Baba Chauhan ...Appellant
Versus
State of Maharashtra ... Respondent
WITH
Criminal Appeal No. 1129-1130 of 2007
WITH
Criminal Appeal No. 402 of 2008
WITH
Criminal Appeal No. 617-618 of 2008
WITH
Criminal Appeal No. 1631 of 2007
WITH
Criminal Appeal No. 1419 of 2007
Page 1
WITH
Criminal Appeal No. 1226 of 2007
WITH
Criminal Appeal No. 1422 of 2007
WITH
Criminal Appeal No. 1180 of 2007
WITH
Criminal Appeal No. 1225 of 2007
WITH
Criminal Appeal No. 919 of 2008
AND
Criminal Appeal No. 1393 of 2007
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CRIMINAL APPEAL NO. 555 OF 2012
Ibrahim Musa Chauhan @ Baba Chauhan ...Appellant
Versus
State of Maharashtra ... Respondent
JUDGMENT
Dr. B.S. Chauhan, J:
1. This appeal has been preferred against the judgments and
orders dated 29.11.2006 and 6.6.2007 passed by a Special Judge of
the Designated Court under the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as the `TADA') in the
Bombay Blast Case No. 1/1993, by which the appellant (A-41) has
been convicted under Sections 3(3), 5 and 6 TADA, as well as under
Sections 3 and 7 read with Section 25(1-A) (1-B) (a) of the Arms
Act, 1959 (hereinafter referred to as the `Arms Act'), Section 4(b) of
the Explosive Substances Act, 1908 (hereinafter referred to as the
`Act 1908), and Section 9-B(1) (b) of the Explosives Act, 1884
(hereinafter referred to as the `Act 1884').
2. Facts and circumstances giving rise to this appeal are that:
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A. As all the main factual and legal issues involved in this
appeal have already been discussed by us and determined in the
main connected appeal i.e. Yakub Abdul Razak Memon v. State of
Maharashtra thr. CBI (Criminal Appeal No.1728 of 2007), there is
thus, no occasion for us to repeat the same.
B. The Bombay Blasts occurred on 12.3.1993, in which 257
persons lost their lives and 713 were injured. In addition thereto,
there was loss of property worth several crores. The Bombay police
investigated the said matter at the initial stage, but subsequently the
investigation of the same was entrusted to the Central Bureau of
Investigation (hereinafter referred to as the `CBI'), and then upon
conclusion of the investigation, a chargesheet was filed against a
large number of accused persons. Among the accused persons
against whom a chargesheet was filed, 40 accused could not be put
to trial as they were absconding. Thus, the Designated Court under
TADA framed charges against 138 accused persons. During the
trial, 11 accused died and 2 accused turned hostile. Furthermore, the
Designated Court discharged 2 accused during trial, and the
remaining persons, including the appellant (A-41) stood convicted.
C. A common charge of conspiracy was framed against all the
coconspirators including the appellant. The relevant portion of the
said charge is reproduced hereunder:
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"During the period from December, 1992 to April, 1993 at
various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (U.A.E.),
Pakistan, entered into a criminal conspiracy and/or were
members of the said criminal conspiracy whose object was
to commit terrorist acts in India and that you all agreed to
commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
other explosive substances like RDX or inflammable
substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause or
as likely to cause death of or injuries to any person or
persons, loss of or damage to and disruption of supplies of
services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed to
smuggle fire-arms, ammunition, detonators, hand grenades
and high explosives like RDX into India and to distribute
the same amongst yourselves and your men of confidence
for the purpose of committing terrorist acts and for the said
purpose to conceal and store all these arms, ammunition
and explosives at such safe places and amongst yourselves
and with your men of confidence till its use for committing
terrorist acts and achieving the objects of criminal
conspiracy and to dispose off the same as need arises. To
organize training camps in Pakistan and in India to import
and undergo weapons training in handling of arms,
ammunitions and explosives to commit terrorist acts. To
harbour and conceal terrorists/coconspirators, and also to
aid, abet and knowingly facilitate the terrorist acts and/or
any act preparatory to the commission of terrorist acts and
to render any assistance financial or otherwise for
accomplishing the object of the conspiracy to commit
terrorist acts, to do and commit any other illegal acts as
were necessary for achieving the aforesaid objectives of
the criminal conspiracy and that on 12.03.1993 were
successful in causing bomb explosions at Stock Exchange
Building, Air India Building, Hotel Sea Rock at Bandra,
Hotel Centaur at Juhu, Hotel Centaur at Santa Cruz, Zaveri
Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol
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Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in
lobbing handgrenades at Macchimar Hindu Colony.
Mahirn and at Bay-52, Sahar International Airport which
left more than 257 persons dead, 713 injured and property
worth about Rs.27 crores destroyed, and attempted to
cause bomb explosions at 'Naigaum Cross Road and
Dhanji Street, all in the city of Bombay and its suburbs i.e.
within Greater Bombay. And thereby committed offences
punishable under Section 3(3) TADA and Section 120-B
of Indian Penal Code, 1860 (hereinafter referred to as the
IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6
TADA and read with Sections 302, 307, 326, 324, 427,
435, 436, 201 and 212 IPC and offences under Sections 3
and 7 read with Sections 25 (1-A), (I-B)(a) of the Arms
Act 1959, Sections 9B (l)(a)(b)(c) of the Explosives Act,
1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive
Substances Act, 1908 and Section 4 of the Prevention of
Damage to Public Property Act, 1984 and within my
cognizance."
D. Additionally, he has been charged for abetting and
facilitating acts that were preparatory in nature, for the terrorist acts,
by acquiring and distributing AK-56 rifles in the city of Bombay and
its suburbs, their magazines, ammunition and also hand grenades to
co-accused Sanjay Dutt (A-117) and Salim Kurla (Juvenile) at the
instance of Anis Ibrahim Kaskar, an Absconding Accused
(hereinafter referred to as `AA'), brother of notorious smuggler
Dawood Ibrahim, and Abu Salim for committing the terrorist acts
punishable under Section 3(3) TADA.
E. The appellant (A-41) was also charged with, being in the
unauthorised possession of one AK 56 rifle, 635 rounds of
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ammunition, 10 magazines of AK 56 rifle, and 25 hand grenades as
the same were recovered in the notified area at his instance, and thus
he has been charged under Section 5 TADA.
F. The appellant was further charged under Section 6 TADA,
Sections 3 & 7 read with Section 25(1-A), (1-B)(a) of the Arms Act,
Section 4(b) of the Act 1908 and Section 9-B(1)(b) of the Act
1884, for unauthorisedly being in possession of the aforesaid arms
with the intention to aid terrorist acts.
G. The prosecution has examined a large number of witnesses
and produced a large number of documents to prove its case, and
upon conclusion of the trial, the Designated Court acquitted the
appellant of the umbrella charge of conspiracy i.e. charge No. 1.
However, he was convicted for the second charge i.e. smaller
conspiracy under Section 3(3) TADA and was awarded a sentence of
8 years RI alongwith a fine of Rs.1,00,000/-, and in default of
payment of fine, to suffer further RI for a period of three years;
under Section 5 TADA, he was sentenced to suffer RI for 10 years
alongwith a fine of Rs.50,000/-, and in default of payment of fine, to
suffer further RI for a period of one year; under Section 6 TADA, he
was sentenced to suffer RI for 10 years and a fine of Rs.1,00,000/-,
and in default of payment of fine, to suffer further RI for a period of
3 years; under Section 4(b) of the Act 1908, he was sentenced to
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suffer RI for four years alongwith a fine of Rs.25,000/- and in
default of payment of fine, to suffer further RI for a period of 6
months, under Section 9-B (1)(b) of the Act 1884, he was sentenced
to suffer RI for one year alongwith a fine of Rs. 2,000/- and in
default of payment of fine, to suffer further RI for two months.
All the sentences were directed to run concurrently. However,
under Sections 3 and 7 read with Section 25 (1-A)(1-B)(a) of the
Arms Act, the appellant was convicted, but no separate sentence was
awarded.
Hence, this appeal.
3. Shri Shree Prakash Sinha, learned counsel for the appellant
has submitted that the confessional statement of the appellant as well
as those of the co-accused were recorded by the police forcibly,
without meeting the requirements of Section 15 TADA and Rule 15
of the rules framed thereunder. Thus, the same cannot be relied
upon. The recoveries purported to have been made were also
planted by the investigating agency and cannot be relied upon. The
Designated Court erred in convicting the appellant. Thus, the appeal
deserves to be allowed.
4. Shri Mukul Gupta, learned Senior counsel appearing for the
respondent, has opposed the appeal contending that the confessional
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statement of the appellant as well as those of the co-accused, were
recorded in strict adherence to statutory requirements i.e. Section 15
TADA and Rule 15 of the rules framed thereunder. The appellant
and co-accused have made their confessional statements voluntarily
and the conviction of the appellant can be maintained on the sole
basis of the confessional statement of the appellant himself.
Moreover, a large number of co-accused have named him and have
assigned to him overt acts. The recoveries have also been made
strictly in accordance with the requirements of Section 27 of the
Indian Evidence Act, 1872 (hereinafter referred to as the `Evidence
Act') and there is no reason to disbelieve the same, as the same were
made at the instance of the appellant i.e. on the basis of his
disclosure statement made voluntarily. Thus, the appeal lacks merit
and is liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. Evidence against the appellant (A-41):
(a) Confessional statement of the appellant himself.
(b) Confessional statement of co-accused Samir Ahmed Hingora (A-53).
(c) Confessional statement of co-accused Sanjay Dutt (A-117).
(d) Confessional statement of Manzoor Ahmed Sayyed Ahmed (A-89).
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(e) Deposition of Pandharinath Hanumanth Shinde (PW.218).
(f) Deposition of Laxman Loku Karkare (PW.45).
(g) Deposition of Hari Pawar (PW.596).
(h) Deposition of Prem Kishan Jain (PW.189).
7. Confessional Statement of Baba Musa Chauhan (A-41):
His confessional statement shows that he was well
acquainted with the co-accused Salim who used to extort money, and
was working for Anis Ibrahim Kaskar (AA), brother of notorious
smuggler and gangster Dawood Ibrahim. Salim told the appellant
(A-41) on 15.1.1993 to arrange a garage, with respect to which, the
appellant (A-41) initially expressed his inability, but after receiving a
phone call from Anis Ibrahim Kaskar in the evening at about 7-7.30
P.M., wherein Salim was asked to go to the Magnum Video Office,
and meet Samir Ahmed Hingora (A-53). The appellant (A-41) went
there alongwith Salim in a blue coloured Maruti 800 Car, and with
the help of Samir Ahmed Hingora (A-53) and his partner Haneef,
they searched for an appropriate garage. At this time, Salim told the
appellant (A-41) that he would keep 2-3 AK 56 rifles with him (A-
41) for about 2-3 days, and asked him to stay at home, so that he
could bring the arms. On the subsequent morning, Salim came to the
house of the appellant (A-41). Abu Salim asked the appellant (A-41)
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to drive a white coloured Maruti Van which was parked near the
Arsha Shopping Centre and to come near the Magnum office. Salim
drove ahead of him in a blue coloured Maruti, after handing over the
keys of the van to the appellant (A-41). Appellant (A-41) reached
close to the Magnum office in the van. Salim and Samir Ahmed
Hingora (A-53) then sat in the van driven by the appellant (A-41),
and all those three persons reached the house of co-accused Sanjay
Dutt (A-117). Sanjay Dutt (A-117) embraced Salim and Samir
Ahmed Hingora (A-53). Salim introduced Sanjay Dutt (A-117) to
the appellant (A-41). Sanjay Dutt cleared the passage leading to the
garage, shifting the vehicles parked therein to the other side. The
van which the appellant (A-41) had driven was taken to the garage in
reverse gear. Salim opened the cavity of the car which was under its
back seats with the aid of a `panna', and from within, removed 9
AK 56 rifles one by one, and then opened the inside lining of the
front door of the car and removed from there 80 hand grenades
without pins, then he removed 1500/2000 bullets from the back door.
These bullets were packed in brown coloured paper, in packets of
25-30 bullets, which were held together by rubber bands. The hand
grenades were also packed in brown coloured paper. There were 56
magazines in the lining of the back door of the car. Sanjay Dutt (A-
117) asked Salim why the hand grenades had been brought there, as
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it might create a problem in case the same blew up. Salim explained
to Sanjay Dutt (A-117) that as the hand grenades did not have pins
nothing would happen. Salim made a list of all the articles and
asked the appellant (A-41) to keep 3 rifles, 9 magazines, 450 bullets
and 20 hand grenades in Sanjay Dutt's Fiat car (A-117) . The
appellant (A-41) kept the said arms and ammunition as directed by
Salim in the dickey of Sanjay Dutt's car (A-117), locked the dickey
and put the key in his pocket. Samir Ahmed Hingora (A-53) kept 20
hand grenades in his car after packing the same into a bag and the
appellant (A-41) kept 3 rifles, 16 magazines, 25 hand grenades and
750 bullets and came out with Samir Ahmed Hingora (A-53). The
appellant (A-41) left with the remaining arms and ammunition kept
in a bag, which he laid under his bed.
Next day, the appellant (A-41) loaded all the bullets in the
magazines of the rifles. He could not contact Salim to take away the
said arms as no one picked up Salim's telephone. Subsequently, the
appellant (A-41) was told by Salim's wife that Salim had gone out of
India and that she would talk to him after 2-3 days. The appellant
(A-41) told her that Salim had kept some computer parts with him
(A-41) and that the same were to be returned to him at the earliest.
A-41 went to the house of Salim and told his wife that he wanted to
return the said goods at the earliest. On the same night, A-41
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received a telephone call from Dubai from Salim informing him that
he was coming back to Bombay within 1-2 days, and that after
coming back he would collect all the goods. However, Salim did not
return from Dubai. So the appellant (A-41) called up his brother-in-
law in Dubai and asked him to talk to Salim, and request him to
collect his goods, who subsequently informed the appellant (A-41)
that Salim was likely to come to Bombay within a day or two and
that he would contact him. Immediately thereafter, riots took place
in Bombay.
On 16.1.1993 the appellant (A-41) received a telephone call
from Salim, who asked him to talk to Anis Ibrahim Kaskar (AA).
A-41 contacted Anis Ibrahim, who told the appellant (A-41) to give
two guitars and six `tars' (cord) to Salim Kurla and also, to give him
some `Kadis' and on being told that the `Kadis' had already been
attached to the broom (Jaadu), Anis Ibrahim asked the appellant to
give only 6 `tars'. The appellant (A-41) told Anis Ibrahim Kaskar
that he did not know Salim Kurla. Then Anis Ibrahim Kaskar told
him that Salim Kurla knew the appellant (A-41), and that he would
come to the Andheri Post Office in the front of his house. Thus, on
his instructions, the appellant (A-41) handed over two rifles and 6
loaded magazines to Salim Kurla. Salim Kurla had told the appellant
that these arms were to be given to some one in Beharam Pada.
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After 2-3 days, Salim returned to Bombay and came to the appellant
(A-41) with his brother Kalam. The appellant (A-41) told him that he
had 1 rifle, 25 hand grenades, the remaining bullets and 10
magazines etc. The appellant (A-41) asked Salim to take these
remaining articles from him. However, he promised to take them
back in the evening, but then did not come for two days.
During this period, the appellant (A-41) learnt from the
newspapers that Salim had been arrested by the police while trying
to extort money from a Gujarati person. Salim himself came to see
the appellant (A-41), and told him (A-41) that Salim Kurla could
disclose the name of the appellant (A-41) to the police, and hence, he
advised the appellant (A-41) not to disclose Salim's name. The
appellant (A-41) became frightened, as he was in the possession of
arms. Thus, he immediately shifted the arms to Iqbal Tunda and
informed Salim to keep the remaining goods with someone without
disclosing his (A-41) name. Salim came to see the appellant (A-41),
and he had with him 30 loaded magazines which were wrapped in a
plastic/polythene bag and then kept in a cloth bag. He left these
magazines with the appellant (A-41) and said that he would send
Ayub to collect this ammunition from him. Accordingly, the next
night at 9-9.30 p.m. Ayub came with arms including one AK 56
rifle. He kept the magazine and bag in one place. Though, he
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returned a part of the arms and ammunition, some material still
remained with the appellant (A-41), which was kept in another place.
He returned 30 loaded magazines to Salim and Ayub which they
kept inside the dickey of their scooter and left.
Salim Kurla was arrested after the Bombay blast and upon
his disclosure, the appellant (A-41) was arrested on 28.3.1993. Later
on, his father obtained the bag which he had kept with Iqbal Tunda
through Hazi Ismail, and the same was produced before the police.
He (A-41) further stated that he was not interested in using any arms
or keeping the same with him, rather he had been forced to keep the
same by the other co-accused, on the pretext that the weapons and
ammunition would be collected from him within 2-3 days.
The appellant (A-41) made a retraction statement on
21.12.1993.
8. The Confessional Statement of Samir Ahmed Hingora (A-53):
He made a confession that on 15.1.1993, Anis Ibrahim
Kaskar had telephoned him stating that the appellant (A-41) and
Salim would bring one vehicle loaded with weapons, and that he was
to make arrangements for the off-loading and handing over of some
weapons to Sanjay Dutt (A-117), and that thereafter, some weapons
would be taken back by them for distribution to other persons. Since
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his partner Haneef was not in office, he took them to his house.
Haneef talked to Anis Ibrahim Kaskar (AA) in Dubai over the
telephone, and expressed his unwillingness to carry out his
instructions. However, upon the request of Salim, he (A-53) agreed
to take him to Sanjay Dutt's house while he was talking to Anis
Ibrahim Kaskar over the telephone about the said weapons. Sanjay
Dutt hugged Salim and asked him to come the next day with the
weapons.
The next day, he (A-53) went to his office and met Salim
and the appellant (A-41) and then reached the house of Sanjay Dutt
(A-117). Sanjay Dutt asked his driver Mohd. to remove all the
vehicles from the garage, and the appellant (A-41) then parked his
Maruti van there and asked for a spanner and screw driver. Sanjay
Dutt (A-117) asked Mohd. to bring the tool kit from his car and give
it to the appellant (A-41). Salim wrapped three AK 56 rifles and
some magazines in a bed sheet as per the request of Sanjay Dutt
(A-117), and Salim also gave Sanjay Dutt 20-25 hand grenades
which were put in a black coloured bag along with other
ammunition.
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9. Confessional statement of Sanjay Dutt (A-117):
He admitted that one day in the month of January around 9-
9.30 p.m., Haneef and Samir Kurla had come to his house alongwith
Salim. He had met Salim once or twice earlier also. They told him
(A-117) that they would be coming the next day with the weapons
that were to be delivered to him and then went away. The next
morning, Samir, Haneef and Salim came to his house alongwith one
other person, whom he did not know. They had come in a Maruti
Van and parked the same in the tin shed which was used by him for
parking his own vehicles. One person was sitting inside the Maruti
Van. After about 15-20 minutes, he took out three rifles, and they
told him that the same were AK-56 rifles. He then brought some
cloth from his house and gave it to them. Salim and the person who
had come with him, wrapped the rifles in the cloth, and thereafter,
gave the same to him. He stated that he could identify, the person
sitting in the car and also the hand grenades. He kept these rifles and
the ammunition in the dickey of his Fiat Car No.MMU 4372.
10. Confessional statement of Manzoor Ahmed Sayyed Ahmed (A-89):
He confessed that he had a blue coloured Maruti 800 bearing
No. M.P.23 B-9264. On 22nd/23rd January, 1993, in the evening,
Salim contacted him over the telephone and called him to his office
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at Santacruz. After reaching there he took him (A-89), to the office
of the appellant (A-41) at Monaz Builders and Builders, S.V. Road,
Andheri, Opposite the Post Office. He introduced (A-89) to the
appellant (A-41), and gave the key of his car to the appellant (A-41)
and after about half an hour the appellant (A-41) came back and
parked the said car outside the office, and gave the key to Salim and
told him that he had kept the bag of weapons in the car. When Salim
and (A-89) entered the car, he (A-41) saw that a black bag
containing weapons, was kept on the rear seat of the car.
11. Deposition of Pandharinath Hanumanth Shinde (PW.218) :
He was the constable posted at the house of Sanjay Dutt (A-
117) for security. His statement was recorded in court on 6.11.1997,
wherein he deposed about the visit of the appellant (A-41) alongwith
Salim and others, to the house of Sanjay Dutt (A-117). He identified
the appellant in a TI Parade held after 57 days, as well as in court.
He also identified the two persons alongwith Sanjay Dutt. He
supported the prosecution's case by saying that Sanjay Dutt had
instructed the witness to go to Gate no. 1 for duty, which he had
followed. The happenings at Gate No.2 would not be visible to him,
while he was standing near the main Gate No.1. It was for this
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reason that he had been shifted to a place from where he could not
possibly see what was happening.
12. Deposition of Laxman Loku Karkare (PW.45) - He was a
panch witness in the recovery made on 1.4.1993. When he reached
the police station and had agreed to become a panch witness, there
were some constables and one more person, who had disclosed that
his name was Ibrahim Musa Chauhan @ Baba Chauhan (A-41). He
had given the address of his residence. The appellant (A-41) had
disclosed to the police in his presence, that he had AK 56 rifles,
magazines, grenades and cartridges which he had been concealed,
and that he would show them the place of concealment and also
produce the weapons. The panchanama was signed by this witness.
They reached the place as was explained to them by the appellant
(A-41) by police jeep, which was near Andheri Bus Terminus.
Subsequently, they found themselves in front of a chawl owned by
the appellant (A-41). Then the appellant took them to a lane which
was being used as a dumping ground for waste material, and
removed a bag from underneath a heap of waste. He removed an AK
56 rifle, 635 cartridges and 25 hand grenades, and handed over the
same to P.I. Pawar who examined all the articles. The seizure
panchanama was prepared by P.I. Pawar.
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In his cross-examination he deposed that he did not
remember that there was a street light at a distance of 20 feet on the
northern side of the open space used as a dustbin. The space was
full of waste material when he had gone alongwith the police party
and the accused. There were no left over eatables dumped at the
place and it was thus, not smelling. P.I. Pawar alongwith the accused
had entered the open space. The open space being used as a dustbin
was 4 ft. x 4 ft. The accused brought a bag out to the lane from the
dustbin. The bag was not in the hands of P.I. Pawar. The accused
(A-41) had removed the bag from the dustbin in their presence. He
was standing in the lane watching the accused removing the bag
from the dustbin.
13. Deposition of Hari Pawar (PW.596) - He is the Police
officer who made the recovery at the instance of the appellant
(A-41), in the presence of Panch witnesses. He has corroborated the
version of recovery as stated by PW.45.
14. Deposition of Prem Kishan Jain (PW.189)- He had
recorded the confessional statement of the appellant. He deposed
that the appellant (A-41) had been brought from police custody and
sent back to police custody. The witness explained that he was fully
aware of the requirement of recording a confession and that he had
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complied with all the said requirements while recording the
confession of the appellant.
15. In State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC
370 this court dealt with the issue of recovery from the public place
and held:
"21. The conduct of the accused has some
relevance in the analysis of the whole
circumstances against him. PW 3 Santosh Singh,
a member of the Panchayat hailing from the
same ward, said in his evidence that he reached
Jeet Singh's house at 6.15 a.m. on hearing the
news of that tragedy and then accused Jeet Singh
told him that Sudarshana complained of pain in
the liver during the early morning hours. But
when the accused was questioned by the trial
court under Section 313 of the Code of Criminal
Procedure, he denied having said so to PW 3 and
further said, for the first time, that he and
Sudarshana did not sleep in the same room but
they slept in two different rooms. Such a conduct
on the part of the accused was taken into account
by the Sessions Court in evaluating the
incriminating circumstance spoken to by PW 10
that they were in the same room on the fateful
night. We too give accord to the aforesaid
approach made by the trial court."
16. Similarly, in State of Maharashtra v. Bharat Fakira
Dhiwar (2002) 1 SCC 622, this Court held:
"22. In the present case the grinding stone
was found in tall grass. The pants and
underwear were buried. They were out of
visibility of others in normal circumstances.
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Until they were disinterred, at the instance of the
respondent, their hidden state had remained
unhampered. The respondent alone knew where
they were until he disclosed it. Thus we see no
substance in this submission also."
17. In view of the above, it cannot be accepted that a recovery
made from an open space or a public place which was accessible to
everyone, should not be taken into consideration for any reason.
The reasoning behind it, is that, it will be the accused alone who
will be having knowledge of the place, where a thing is hidden.
The other persons who had access to the place would not be aware
of the fact that an accused, after the commission of an offence, had
concealed contraband material beneath the earth, or in the garbage.
18. In Durga Prasad Gupta v. State of Rajasthan thr. CBI
(2003) 12 SCC 257, this Court explained the meaning of possession
as:
"The word "possession" means the legal right
to possession (See Heath v. Drown). In an
interesting case it was observed that where a
person keeps his firearm in his mother's flat which
is safer than his own home, he must be considered
to be in possession of the same. (See Sullivan v.
Earl of Caithness, (1976) 1 All ER 844.)
Once possession is established, the person who
claims that it was not a conscious possession has
to establish it, because how he came to be in
possession is within his special knowledge."
22
Page 22
19. In Sanjay Dutt v. State thr. CBI, Bombay (II), (1994) 5
SCC 410 this Court considered the statutory provisions of Section 5
TADA and in this regard held:
"19. The meaning of the first ingredient of
`possession' of any such arms etc. is not disputed.
Even though the word `possession' is not preceded
by any adjective like `knowingly', yet it is common
ground that in the context the word `possession'
must mean possession with the requisite mental
element, that is, conscious possession and not
mere custody without the awareness of the nature
of such possession. There is a mental element in
the concept of possession. Accordingly, the
ingredient of `possession' in Section 5 of the
TADA Act means conscious possession. This is
how the ingredient of possession in similar context
of a statutory offence importing strict liability on
account of mere possession of an unauthorised
substance has been understood.
xxxxxx
25. The significance of unauthorised possession
of any such arms and ammunition etc. in a notified
area is that a statutory presumption arises that the
weapon was meant to be used for a terrorist or
disruptive act. This is so, because of the proneness
of the area to terrorist and disruptive activities,
the lethal and hazardous nature of the weapon and
its unauthorised possession with this awareness,
within a notified area. This statutory presumption
is the essence of the third ingredient of the offence
created by Section 5 of the TADA Act. The
question now is about the nature of this statutory
presumption.
xxxxxxx
27. There is no controversy about the facts
necessary to constitute the first two ingredients.
For proving the non-existence of facts constituting
the third ingredient of the offence, the accused
23
Page 23
would be entitled to rebut the above statutory
presumption and prove that his unauthorised
possession of any such arms and ammunition etc.
was wholly unrelated to any terrorist or disruptive
activity and the same was neither used nor
available in that area for any such use and its
availability in a "notified area" was innocuous.
Whatever be the extent of burden on the accused to
prove the non-existence of the third ingredient, as
a matter of law he has such a right which flows
from the basic right of the accused in every
prosecution to prove the non-existence of a fact
essential to constitute an ingredient of the offence
for which he is being tried. If the accused succeeds
in proving non-existence of the facts necessary to
constitute the third ingredient alone after his
unauthorised possession of any such arms and
ammunition etc. in a notified area is proved by the
prosecution, then he cannot be convicted under
Section 5 of the TADA Act and would be dealt with
and punished under the general law. It is
obviously to meet situations of this kind that
Section 12 was incorporated in the TADA Act."
20. Therefore, the only requirements under the statutory
provisions are, that (1) a person must be in possession of some
contraband material; (2) the person must have knowledge of his
possession i.e. conscious possession; (3) it should be in the notified
area. Once possession is established, the burden is on the accused to
show that he was not in conscious possession.
21. After considering the entire evidence on record, the learned
Designated Court came to the conclusion that the appellant (A-41)
was aware that the arms and ammunition which were handled by
24
Page 24
him were to be used during riots against Hindus. The father of the
appellant (A-41), had collected a bag of contraband kept with Iqbal
Tunda through Haji Ismail, and handed over the same to the police.
The Designated Court held that the confessions of the co-accused
established the role played by the appellant (A-41) in supplying
weapons to A-117. The confession of A-117 does not reveal the
name of the appellant (A-41), but the same is obvious as A-117 did
not know the appellant prior to the said meeting. Thus, it is clear that
the fourth person referred to in the confession of A-117 is none other
than the appellant (A-41). The Court held that a consideration of the
entire evidence leads to the inescapable conclusion that the appellant
(A-41) was in unauthorised possession of AK-56 rifles, magazines,
ammunition and hand granades, and that he had distributed a part of
the material to A-117, kept the hand grenades with himself, and had
handed over an AK-56 rifle to Salim Kurla (dead). All the said acts
were committed by him at the behest of Salim (AA) and Anees
Ibrahim, and thus he has committed an offence punishable under
Sections 3(3) and 5 TADA. Being in the unauthorised possession of
weapons in a notified area, and having failed to rebut the
presumption i.e. that the same were being for the purpose of the
commission of a terrorist act, he is liable to be convicted under
Section 5 TADA.
25
Page 25
However, considering that no nexus was established between
the material possessed and distributed by the appellant (A-41), and
the material smuggled into the country by the main conspirators, and
there being absolutely no other material on record to reveal the
nexus between the appellant (A-41) and any other co-accused
involved in the said conspiracy, it was held that he could not be held
guilty for the offence of conspiracy i.e. for the first charge. The acts
committed by the appellant (A-41) do not reveal that the same were
being done for the purpose of furthering the object of the
conspiracy.
22. We have considered the entire evidence on record and come
to the following conclusions:
i. The appellant (A-41) was well acquainted with Abu
Salim (AA) who was working with Anis Ibrahim Kaskar
(AA).
ii. The appellant (A-41) was asked to arrange a garage,
and hence searched for an appropriate garage with co-
accused Salim, Hingora (A-53) and his partner Haneef.
iii. The appellant was introduced to co-accused Sanjay
Dutt (A-117) at the residence of the latter.
26
Page 26
iv. The appellant witnessed the handing over of
contraband to the co-accused (A-117).
v. The appellant was in conscious possession of certain
contraband items.
vi. The recovery of the contraband material which was
effected upon the making of a disclosure statement by the
appellant, took place at a dumping ground for waste.
23. The Designated Court convicted the appellant (A-41) on the
basis of the evidence as has been hereinabove stated. We find no
cogent reason to interfere with the decision of the Designated Court.
The appeal is hereby, accordingly dismissed.
27
Page 27
CRIMINAL APPEAL NOS.1129-1130 OF 2007
Altaf Ali Sayed ...Appellant
Versus
State of Maharashtra through CBI ... Respondent
24. These appeals have been preferred against the judgments and
orders dated 24.11.2006 and 5.6.2007 passed by a Special Judge of
the Designated Court under the TADA for Bombay Blast, Greater
Bombay, in Bombay Blast Case No. 1/1993 by which the appellant
has been convicted under Section 3(3) TADA and sentenced for 10
years rigorous imprisonment and a fine of Rs.50,000/- and in default
of payment of fine to further suffer rigorous imprisonment of one
year. He has further been convicted for the offence under Section 5
TADA and sentenced to 10 years rigorous imprisonment with a fine
of Rs.2,00,000/- and in default of payment of fine to suffer further
rigorous imprisonment for 3-1/2 years.
Both the sentences were directed to run concurrently.
25. Facts and circumstances giving rise to these appeals are that:
A. In addition to the main charge of conspiracy, the appellant
(A-67) was charged for arranging 13 air tickets in order to facilitate
28
Page 28
the traveling of the accused persons for training of handling arms,
ammunition and explosives. He has also been charged for
knowingly and intentionally storing 2 suit cases containing arms and
ammunition, thereby committing the offence punishable under
Section 3(3) TADA. The appellant was further charged for
possessing arms and ammunition in the notified area of Greater
Bombay which were recovered at the instance of Mohd. Hanif
Usman Shaikh, thereby committing the offence under Section 5
TADA. And lastly, he was charged with an intent to aid terrorist
acts thereby committing an offence under Section 6 TADA.
B. After conclusion of the trial, the learned Designated Court
under TADA convicted and sentenced the appellant as referred to
hereinabove.
Hence, these appeals.
26. Shri Mukul Rohtagi, learned senior counsel appearing on
behalf of the appellant, has submitted that the appellant had not been
found guilty of first charge i.e. larger conspiracy and the allegations
against him had been regarding keeping possession of handgrenades,
detonators and storing the suitcases which had been recovered on his
discovery statement. The recovery memo of the alleged articles had
not been signed by the appellant and even the story of handing over
29
Page 29
the two bags to the appellant is false for the reason that it has been
alleged that Amzad Ali Aziz Meharbaksh had given four bags which
were returned to Yakub Memon (A-1) as Amzad Ali Aziz
Meharbaksh had been discharged by this Court. Thus, the evidence
of Mohd. Hanit Usman Shaikh (PW.282) in this regard cannot be
relied upon. More so, the prosecution could not produce all 105
handgrenades, alleged to have been recovered from the possession of
the appellant as there had been shortage of 20 handgrenades. More
so, no explanation had been made by the prosecution as how the
key-maker was present on the scene and who had brought him.
More so, the panch witness could not be relied upon because his
brother is an employee in arms department in police and thus, he
could not termed to be an independent witness. The alleged recovery
of articles 42 and 43 had not properly been sealed, therefore, there
was a possibility of tampering with the contents of the suitcases.
Thus, the learned Designated Court erred in convicting and
sentencing the appellant. Thus, the appeal deserves to be allowed.
27. Per contra, Shri Mukul Gupta, learned senior counsel
appearing on behalf of the State, has submitted that there is sufficient
material on record that in the presence of Yakub Memon (A-1),
Amzad Ali Aziz Meharbaksh had told the appellant (A-67) that
30
Page 30
goods belonging to Yakub Memon (A-1) were to be shifted to some
other place and, subsequently, Yakub Memon (A-1) asked appellant
(A-67) as to whether the bags had been delivered to him by Amzad
Ali Aziz Meharbaksh. The tickets for the co-accused were arranged
by Yakub Memon (A-1) through the appellant by sending money
and passports to him through Rafiq Madi (A-46). It was Yakub
Memon (A-1) who sent three bags to Rafiq Madi (A-46) through
appellant (A-67). Yakub Memon (A-1) had instructed on telephone
to the appellant for sending the bags to Al-Husseini Building i.e.,
residence of Yakub Memon (A-1) and his family. The recovery has
been made in accordance with law and there is sufficient material
against the appellant to convict him for the aforesaid offences,
hence, no interference is required.
28. We have considered the rival submissions made by the
learned counsel for the parties and perused the records.
29. Evidence against the appellant:
(a) Confessional statement of the appellant (A-67)
(b) Confessional statement of Mohd.Rafiq Madi Biyariwala(A-46)
(c) Deposition of Mohd. Hanit Usman Shaikh (PW-282)
(d) Deposition of Prem Kishan Jain (PW-189)
(e) Deposition of Shri K.L. Bishnoi (PW-193)
31
Page 31
(f) Deposition of S.J. Satam, Panch witness (PW-37)
(g) Deposition of Waman Kulkarni (PW-662)
(h) Deposition of Woman Dotlkar (PW-420)
(i) Deposition of Asit Devji (PW-341)
(j) Deposition of Anil Prabhakar (PW-506)
(k) Memo Panch Ex. 108
(l) Discovery Panch. Ex. 109
30. Confessional statement of the appellant (A-67):
His confessional statement was recorded on 16.4.1993 by
Prem Kishan Jain (PW-189), D.C.P. Commandant SRP(F) Group-VI
Dhule. The appellant (A-67) deposed that he was a recruiting agent
under the name of Altaf Enterprises. He knew Amzad Ali Aziz
Meherbux (Discharged accused) and Yakub Memon (A-1). Amzad
sent 4 bags of Yakub to be kept with him as per their earlier meeting.
He asked them as to what was in the bag and Amzad told him that it
contained weapons etc. He also booked tickets for 15-16 persons at
the instance of Yakub for which passports and payments were
received through Rafiq Madi (A-46). After 10-12 days, Rafiq (A-
46) sent him 3 bags of Yakub to be kept with him. When he asked,
Rafiq told him that they contained bullets, grenade etc. On
10.3.1993 he returned 5 bags at Al-Husseini Building at instance of
32
Page 32
Yakub Memon. He kept the remaining two bags containing
weapons and explosives with Mohd. Hanif. The said two bags were
recovered by police on 26.3.1993 at his instance from Mohd. Hanif.
31. Confessional statement of Mohd. Rafiq Madi Biyariwala (A-46):
The said accused stated that on one occasion the appellant
(A-67) was delivered Rs.50,000/- and on another occasion
Rs.62,000-63,000/- at the instance of Yakub Abdul Razak Memon
(A-1). On 14-15 February, he saw the appellant (A-67) taking away
3 suit-cases in his Maruti Van from nearby garage below the
building of Tiger Memon (AA).
Thus, it came in evidence through the confessional
statements of A-67 and A-46 that four suitcases were kept in the
jeep, which was parked in the residential premises of Amjad Abdul
Aziz Meherbux (A-68), (discharged accused) by Abdul Gani Ismail
Turk (A-11) and Anwar Theba (AA) at the instance of Yakub
Abdul Razak Memon (A-1). Subsequently, the appellant (A-67) took
away the four suit cases and kept them in his office, at the instance
of Yakub Abdul Razak Memon (A-1). Later, Rafiq Madi Musa
Biyariwala (A-46) brought three more suit cases and kept them at
the office of the appellant (A-67). Out of the total seven suit cases,
appellant (A-67) delivered five suit cases to Yakub Abdul Razak
33
Page 33
Memon (A-1) at Al Husseini building. Thus, two suit cases remained
in his possession. It has further been disclosed by the appellant that
due to the involvement of Yakub Abdul Razak Memon (A-1) in the
case, he kept the said suit cases at the residence of Mohd. Hanit
Usman Shaikh (PW.282). After the arrest of the appellant, he made
a disclosure under Section 27 of Evidence Act (Exh. 108 dt.
26.3.1993) and led Anil Prabhakar (PW-506) and Suresh Satam
(PW-37) to the residence of Mohd. Hanit Usman Shaikh (PW-282)
from where the following articles were recovered and taken into
possession vide Panchnama Ext. 109. The suitcases contained arms
and ammunition in large quantities.
32. Deposition of Mohd. Hanit Usman Shaikh (PW-282):
Mohammed Hanif Usman Shaikh (PW-282) in his statement
disclosed that the appellant (A-67) had given him two suitcases in
his office on 22.3.1993 at 9.00 P.M. in closed condition and the
appellant (A-67) had asked the witness to keep the said two suitcases
and also told that the suitcases were containing Fax machines. He
has further revealed that after making the recovery of the suitcases
from him the police got them open through the mechanic. The
handgrenades were taken out and chits were affixed on each of the
handgrenade recovered from the bags. But, Mr. Mukul Rohtagi,
34
Page 34
learned senior counsel for the appellant, has submitted that after the
recovery of handgrenades, it was not possible to affix chits on each
of the handgrenade within such a short time of 50-55 minutes even if
20-30 police officials were involved in that activity. The bundles of
wire were kept together and wrapped in a paper. The said packet
was tied by means of a string, and the seal of lac was put on the said
packet. 65 handgrenades from the bigger suitcase were kept in the
same bag alongwith the packet of the bundles of wires, and 40
handgrenades from the small bag were also kept in the same suit
case, and the same were tied and sealed. He has further complained
that during the course of his custody, his statement was recorded by
the police under Section 6 but it was not read over and explained to
him by the police either in Hindi, Urdu or in any other language. He
was detained by the police in March 1993 for about 20-25 days and
was not allowed to return to his house. Moreover, he was tutored
and was asked to involve the appellant (A-67) in this case. The
witness had been attending the office of the appellant (A-67) in
connection with taking the persons abroad. He has also revealed that
the two suitcases recovered had been shown to him and he kept their
description in mind. Though, the said witness had not been turned
hostile but, he was permitted to ask some questions in the nature of
cross-examination regarding the happening at the Mahim Police
35
Page 35
Station in the month of February/March 1993. On the basis of the
above, it has been submitted by Mr. Mukul Rohtagi that the
evidence given by Mohammed Hanif Usman Shaikh (PW-282) does
not inspire confidence and cannot be relied upon.
33. Deposition of Premkrishan Dayakrishan Jain (PW.189):
Premkrishan Dayakrishan Jain (PW.189), D.C.P.
Commandant, S.R.P. (F) Group-VI, Dhule, recorded the
confessional statement of appellant (A-67). He deposed that when
the confessional statement of the appellant (A-67) was recorded on
16th and 18th of April, 1993, he was produced before the said witness
by PSI Patil accompanied by a police party. The witness asked the
appellant his name and then as instructed by the witness, PSI Patil
and police party left the chamber after removing handcuffs of the
appellant (A-67) and being fully satisfied that his confession was
voluntarily recorded. The appellant did not raise any complaint
against anybody and said that he was giving his confessional
statement voluntarily without any pressure or fear or any inducement
given by any person. Thus, two things are clear that on 16/18.4.1993
when the appellant was produced for recording confessional
statement, he came from the police custody on 16.4.1993 and, at that
time, he was handcuffed, so the witness asked the police officials
36
Page 36
who had produced him, to remove the handcuffs. After recording
the first part of his confession, he was sent to police custody and not
in judicial custody or in the custody of any other independent
agency. While on 18.4.1993, he was again produced by the police,
having the custody of the appellant handcuffed and it was on the
direction of the witness, the handcuffs were removed and his
statement was recorded.
34. Deposition of K.L. Bishnoi (PW-193):
He has recorded the statement of the co-accused Rafiq Madi
(A-46) and deposed that he has made a voluntary confessional
statement which was recorded strictly in accordance with law, and
he has also pointed out the involvement of the appellant in the crime.
35. Deposition of S.J. Satam, Panch witness (PW-37):
He was the Panch witness and he has deposed that he had
accompanied the police party alongwith co-accused Rafiq Madi (A-
46) who had taken them to Gate No.5, Kashinath Building, and
pointed out towards the appellant (A-67) who was arrested therein
and arrest memo was prepared.
37
Page 37
36. Deposition of Waman Kulkarni (PW-662):
He has deposed about sending 9 sealed packets to FSL on
24.8.1993 vide forwarding letter, Ext.2439 and receiving the
chemical analysis report, Ext.2439A.
37. Deposition of Woman Dotlkar (PW-420):
He has deposed that he was working as Assistant Counter
Supervisor of M/s Hans Air Services, and has further deposed
regarding booking of 4 tickets by the appellant (A-67) for 11.2.1993
for Dubai and proved Ext.D-3, xerox copy of 3 tickets.
The relevant material by itself does not reveal that Yakub
Memon (A-1) disclosed the contents of said bags to the appellant.
The further material in confession reveals that bags were given to
him on the count of same being luggage of persons which were to be
sent to abroad. The evidence reveals the manner in which the
appellant had returned 4 bags out of bags given by Amjad Abdul
Aziz Meherbux (A-68) and one bag out of bags brought by Rafiq
Madi Musa Biyariwala (A-46) on the count of the same being
luggage etc. The material reveals that he was not able to return two
bags on the count of same being heavy.
38. The confession of the appellant (A-67) further reveals that he
had asked Aziz Meherbux (A-68) about contents of bags given by
38
Page 38
Yakub Abdul Razak Memon (A-1) and then A-68 had informed him
that same were weapons etc. for purposes of taking revenge of losses
suffered by Muslims during the riots.
39. Since the appellant (A-67) being in possession of contraband
material in an unauthorised manner within notified area and the said
material being capable of attracting provisions of Section 5 TADA,
it will make the appellant (A-67) liable for commission of offence
under Section 5 TADA. However, considering the purpose for which
the appellant (A-67) had taken control of said material, i.e. for
hiding the same with his friend, it cannot be said that he had
committed the said act for either aiding Yakub Abdul Razak Memon
(A-1) or abetting any of the acts of Yakub Abdul Razak Memon (A-
1). Thus, though the appellant (A-67) by committing such act had
contravened provisions of Arms Act and Explosive Act, still his
intent behind committing said act being not for helping any terrorist,
thus, he cannot be held guilty for commission of any offence under
Section 6 TADA.
40. The word `Possession' has been explained under TADA by
this Court in Durga Prasad Gupta (supra).
39
Page 39
41. In Kalpnath Rai v. State (Thr. CBI), (1997) 8 SCC 732,
this Court held that in order to meet the essential ingredients of
offence under Section 3 TADA mens rea must be proved, and it is
for this reason that the companies and corporations etc. cannot be
prosecuted for the offence under the provisions of TADA. It was
further held that the confession of an accused can be used against co-
accused only in the same manner and subject to the same condition
as stipulated in Section 30 of the Evidence Act, i.e. the accused tried
in the same case but for different offences.
42. Shri Mukul Rohtagi, learned senior counsel appearing for
the appellant has submitted that two panch witnesses were there,
whereas one has been examined, i.e. Suresh Satam (PW.37). His
evidence cannot be relied upon for the reason that he was the brother
of a Police Constable and thus, cannot be termed as an independent
witness. Factually, it is true that the panch witness Suresh Satam
(PW.37) himself has admitted that his brother was employee of the
police department of Maharashtra. Further, merely having such a
relationship does not make him disqualified to be a panch witness,
nor his evidence required to be ignored. In Kalpnath Rai (supra),
this Court has held that the evidence of police officials can be held to
be worthy of acceptance even if no independent witness has been
40
Page 40
examined. In such a fact-situation, a duty is cast on the court to
adopt greater care while scrutinising the evidence of the police
official. If the evidence of the police official is found acceptable it
would be an erroneous proposition that the court must reject the
prosecution version solely on the ground that no independent witness
was examined. (See also: Paras Ram v. State of Haryana, (1992) 4
SCC 662; Pradeep Narayan Madgaonkar & Ors. v. State of
Maharashtra, (1995) 4 SCC 255; Sama Alana Abdulla v. State of
Gujarat, (1996) 1 SCC 427; Anil v. State of Maharashtra, (1996)
2 SCC 589; Tahir v. State (Delhi), (1996) 3 SCC 338; and Balbir
Singh v. State, (1996) 11 SCC 139).
43. It has been pointed out by Mr. Mukul Rohtagi, learned senior
counsel appearing for the appellant, that the bags were recovered,
though the key was not available and, therefore, it is not the case
where the key of the suit cases had been given to the appellant (A-
67) and in such a fact-situation, the appellant may not be aware of
the contents of the bags as he had not seen its contents. The
locksmith was called and he made key and gave it to the police.
Subsequent to the opening of the bags, neither the key was kept in
safe custody nor was it exhibited or preserved. The locksmith has not
been examined. The recovery of bags itself becomes doubtful for the
41
Page 41
reason that even if the statements of the panch witness Suresh Satam
(PW.37) and Anil Prabhakar (PW.506) are taken into consideration,
the recovery was made on 26.3.1993 at 10.00 p.m., though they had
started at 5.00 p.m. from a nearby place. Therefore, prosecution has
not explained as under what circumstances the police party took five
hours to travel such a short distance.
44. The confession of the appellant (A-67) revealed that in the
second week of February, he met Yakub Memon(A-1) in office of
Amzad Ali Meharbax (A-68) and A-1 asked the appellant (A-67) to
book tickets to Dubai for him. Thereafter, Amzad Ali Meharbaksh
(A-68) gave the the appellant (A-67) four bags of Yakub (A-1) and
after some time Rafiq Madi (A-46) came with money for the tickets.
After 10-12 days Rafiq Madi (A-46) came with 3 bags of Yakub to
be kept with the appellant (A-67). Upon inquiry from A-68, the
appellant (A-67) found out, that the bags contained weapons for
taking revenge of the sufferings of Muslims. On 10 th March, the
appellant (A-67) had taken 5 bags and kept the same in the garage of
A-1 at Al-Husseini Building. After bomb blasts, he kept the
remaining two bags with Mohd. Hanit (PW-282) from where they
were recovered at his instance. Confession of Mohd. Rafiq Musa
Biyariwala (A-46) revealed that on two occasions Yakub Memon
42
Page 42
(A-1) had given Rs. 50,000/- and Rs. 62000-63000/- to A-46 for
giving it to the appellant (A-67), and accordingly A-46 delivered the
same to the appellant (A-67) and saw the appellant (A-67) driving
away from Al- Husseini Building in red Maruti car with 3 suitcases.
Further, Asit Devji (PW-341) and Waman Dotlkar (PW-420)
corroborated the incident of booking tickets by M/s Altaf Enterprises
i.e. firm of the appellant (A-67). However, the Court held that the
said instance of booking tickets by the appellant (A-67) cannot lead
to the conclusion that he had knowledge of purpose for which
travellers were going abroad and thus, the appellant (A-67) was held
not guilty of first limb of second charge under Section 3(3) TADA.
The recovery of two suitcases containing handgrenades,
detonators and wires was effected by Anil Mahabole (PW-506) in
presence of Suresh (PW-37), panch witness, on 26.03.1993 from the
house of Mohd. Hanif (PW 282) and the same was corroborated by
PW-282.
The appellant (A-67) had been told by Amzad (A-68) that
these bags contained weapons to be used for taking revenge for
Muslims, but still continued to keep the same. The appellant (A-67)
was in possession of bags after he shifted them to Hanif (PW 282) as
he assumed full control of said bags without any instruction of
Yakub (A-1).
43
Page 43
It is evident from the record hereinabove, that in the second
week of February 1993, the appellant met Yakub Memon (A-1) in
the office of Amzad Abdul Aziz Meherbux (A-68) and A-1 asked
the appellant to book tickets for Dubai for him. Thereafter, A-68
gave the appellant 4 packets to Yakub Memon (A-1) and after some
time, Rafiq Madi (A-46) came with 3 packets of Yakub Memon (A-
1) to be kept with the appellant (A-67). On being asked Amzad
Abdul Aziz Meherbux (A-68) revealed that the packets contained
weapons which had been brought to be used for taking revenge of
sufferings of Muslims. The appellant (A-67) had taken 5 bags on
10.3.1993 and kept the same in the garage of Yakub Memon (A-1)
at the Al-Husseini Building. The Bombay blast took place on
12.3.1993, and it was after that the appellant has kept the 2
remaining bags with Md. Hanit Usman Shaikh (PW.282) from
where they had been recovered by the police on a voluntary
disclosure of the appellant and at his instance. The prosecution's
case stood corroborated by the confessional statement of Rafiq Madi
(A-46), who had also disclosed that he had received a sum of
Rs.50,000/- and Rs.62,000/- respectively, from Yakub Memon (A-1)
to be handed over to the appellant (A-67) and accordingly, the said
amount had been delivered to the appellant by him. He had also
44
Page 44
deposed that he had seen the appellant (A-67) taking away the 3 suit
cases in red Maruti Car to Al-Husseini Building.
The other evidences of Asit Devji (PW.341) and Waman
Dotlkar (PW.420) have fully proved the booking of tickets by M/s.
Altaf Enterprises i.e., the Firm of appellant (A-67). Undoubtedly,
the evidence on record in respect of booking does not lead to draw
an inference, that while booking the tickets he had any knowledge of
any conspiracy regarding the Bombay blasts and in view thereof, he
had rightly been acquitted of the charges of the first limb of the
second charge under Section 3(3) TADA. However, the recovery of
2 suit cases containing the arms and ammunition i.e., handgrenades,
detonators and wires etc. was effected by Anil Mahabole (PW.506),
on the disclosure of the appellant in the presence of Suresh Satam
(PW.37) and on 26.3.1993 from the house of Mohd. Hanit (PW-
282). The recovery of 2 suit cases containing the arms and
ammunition i.e., handgrenades, detonators and wires etc. stood fully
proved by the conjoint reading of the depositions of Anil Mahabole
(PW.506), Mohd. Hanit (PW.282) and Suresh Satam (PW.37).
45. We do not find any cogent reason to interfere with the order
passed by the Designated Court. The appeals lack merit and are
accordingly dismissed.
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CRIMINAL APPEAL NO. 402 OF 2008
Mohammed Sayeed Mohammed Isaaq ..Appellant
Versus
State of Maharashtra ... Respondent
46. This appeal has been preferred against the judgment and
order dated 22.5.2007 passed by the Special Judge of the
Designated Court under the TADA for the Bombay Blast, Greater
Bombay in Bombay Blast Case No.1/93, by which the appellant
has been found guilty and has been convicted under Section 3(3)
TADA on two counts and has been awarded a punishment of 6
years alongwith a fine of Rs.15,000/- on each count, and in default
of payment of fine to suffer further R.I. for 3 months. However, the
punishments have been directed to run concurrently.
47. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he was charged
with the execution of the aforesaid criminal conspiracy, as during
the period between December 1992 to April 1993, he had abetted
and facilitated various terrorist activities, and more particularly, he
had gone to Pakistan to receive weapons training in the handling of
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Page 46
arms, ammunition and explosives for the commission of the
terrorist activities, between the dates 22.1.1993 - 15.2.1993.
B. He was further charged for having attended conspiratorial
meetings held in Dubai and Pakistan, alongwith the other co-
conspirators in order to plan the commission of terrorist acts.
C. After conclusion of the trial, the learned Designated Court
found the appellant (A-95) guilty under Section 3(3) TADA only
and awarded the sentence and fine, as referred to hereinabove.
Hence, this appeal.
48. Ms. Farhana Shah, learned counsel for the appellant, has
conceded to the fact that the appellant had in fact gone to Dubai,
without knowing the purpose of such visit, merely upon being
asked by the other co-accused to do so, and that he came to know
only once when he was in Dubai that he had to travel to Pakistan
for receiving training in the handling of arms and ammunition.
Even in Pakistan, he was unable to take training properly as he was
suffering from various ailments due to which, he was even got
abused several times. Learned counsel has admitted appellant's
visit to Dubai, but has also submitted that even after returning to
Bombay, he did not participate in any overt acts or conspiratorial
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Page 47
meetings. Hence, no charge could be proved against him for
attending any such meetings either in India, Dubai, or Pakistan.
Therefore, it has been submitted by Ms. Farhana Shah, that
appellant has been exploited by powerful criminals and smugglers,
and that he had voluntarily gone to Dubai only in search of a job
but, from there he was forced to travel to Pakistan for training.
However, owing to the fact that he could not receive training, after
returning to India he did not attend any meeting. Thus, he cannot
be convicted for the offence punishable under the provisions of
TADA.
49. On the other hand, Shri Mukul Gupta, learned senior counsel
appearing for the CBI, has vehemently opposed the appeal
contending that though undoubtedly, he might not have been
involved in any overt act, his involvement in the aforesaid criminal
conspiracy cannot be ruled out, hence, the provisions of Section
3(3) TADA would automatically be attracted in light of the facts of
the case. Thus, the appeal lacks merit and is liable to be dismissed.
50. We have considered the rival submissions made by the
learned counsel for the parties and perused the records.
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Page 48
51. Evidence against the appellant (A-95) :
(a) Confessional statement of Mohmed Sayeed Mohmed Issaq
(A-95)
(b) Confessional statement of Hanif Mohmed Usman Shaikh
(A-92)
(c) Confessional statement of Shaikh Ibrahim Shaikh Hussein
(A-108)
(d) Confessional statement of Usman Man Khan Shaikh (A-115)
(e) Deposition of Dilip Suryanashi (PW-225)
(f) Deposition of Amrutkumar Shah (PW-362)
(g) Deposition of Bhagat Singh (PW-382)
(h) Deposition of Achyut Bhalchandra Deshpande (PW-657)
(i) Deposition of Surendra Kumar Sonhd (PW-188)
52. Confessional Statement of Mohd. Sayeed Mohmed Issaq (A-95):
His confession was recorded by Shri Surendra Kumar
(PW-188), DCP Zone IV Bombay. He has stated that he was told
by Yusuf to whom he was acquainted from 1.5 years, that Salim
Kurla (A-65, since dead) was making a movie, and that if he
(A-95) wanted, he could be assigned the role of a stunt man in such
movie. When he contacted Salim (A-65), he (A-95) was told to
stay in touch with him as a need might arise for them to travel
abroad. As certain material had to be brought back from Dubai, he
(A-95) at the behest of Salim Kurla (A-65), went there after being
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Page 49
assured by Kurla, that there would be no risk in doing the same.
They were given there 200 Dirhams for expenses. It was only when
they reached Dubai, that the appellant (A-95) found out that they
had been sent there for weapons' training to take revenge upon the
Hindu's. At the said time, the appellant was suffering from
Tuberculosis, and therefore, was unable to keep up with the
training being provided and, hence, he along with four others,
refused to participate in the said training.
53. Confessional statement of Hanif Mohmed Usman Shaikh (A-92):
His confessional statement was recorded by Sharda Prasad
Yadav, DCP Zone II, Bombay on 28.6.1993 and 30.6.1993. In his
confession, he stated that at the instance of Salim (A-65, since
dead), he went to Dubai alongwith the appellant (A-95), Hanif
Mohmed Usman Shaikh (A-92) and Usman Man Khan Shaikh (A-
115) and there they met Ahmed and Farooq, who were introduced
to them by Salim and there they stayed in Delhi Darbar Hotel.
They were given 200 Dirhams for expenses. Salim and Ahmed
called all of them in a room and told that during December 1992
and January 1993, a great injustice had been done to the Muslim
community during Bombay communal riots, and in order to ensure
that such injustice may not be repeated, they would be imparted
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training to handle the arms, ammunition and for that purpose they
should be ready to go to Pakistan the next day. All of them were
scared, however, under pressure, they went to Pakistan. They were
given Rs. 1000/- for expenses. They were imparted training how to
handle the arms and ammunition in Pakistan and they came back to
Bombay via Dubai.
54. Confessional statement of Usman Man Khan Shaikh (A-115):
His confessional statement was recorded by Sharda Prasad
Yadav, DCP Zone II, Bombay on 6.7.1993 and 8.7.1993. He had
given the version similar to that of Mohmed Hanif Mohmed
Usman Shaikh (A-92), as he said that he became acquainted with
Salim (A-65, since dead) and Salim took him to Dubai alongwith
Mohd. Sayeed Mohmed Issaq (A-95), Shaikh Ibrahim Shaikh
Hussein (A-108) and Mohmed Hanif Mohmed Usman Shaikh (A-
92). In Dubai, they were taken to Delhi Darbar Hotel. Ahmed,
Farooq and Salim told them to go to Pakistan for some work and
Ahmed had given them 200 Dirhams for expenses. They were also
told that in December 1992 and January 1993, there were atrocities
on Muslims and it was essential to learn how to use the
sophisticated weapons by the Muslims to defend themselves if such
riots occurred again. He went to Pakistan alongwith Mohd. Sayeed
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Page 51
Mohmed Issaq (A-95), Shaikh Ibrahim Shaikh Hussein (A-108)
and others and learnt how to use the weapons and after completing
the training, they came back to India via Dubai.
55. Depositions of Dilip Suryanashi (PW-225) and Mohandas
(PW-230) Immigration Officer at the Sahar International Airport,
has proved that the appellant left Bombay on 22.1.1993 for Dubai,
and he returned on 16.2.1993 from Dubai.
56. After the incident dated 12.3.1993, the appellant left
alongwith several other persons under a fictitious name, and stayed
at Baroda at a hotel. This has been proved by Amrutkumar Shah
(PW-362), the owner of the said hotel. He has stated that as per
the entry in the hotel register, Room No.204 had been taken by one
Farooq Mohd. Shaikh on 22.5.1993, and that one Mohammed Bhai
had also stayed with the said person.
57. Bhagat Singh (PW-382), the receptionist of the hotel has
also proved the same stating that he had allotted Room No. 204 to
Farooq Shaikh and Mohd. Shaikh.
58. Mr. Achyut Bhalchandra Deshpande (PW-657), police
inspector, deposed that he had written a letter to the Deputy
Commissioner of Police, Zone-III, Greater Bombay on 22.6.1993,
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Page 52
to record his confessional statement. He has admitted in his cross-
examination that he did not maintain any diary etc. wherein any
such particulars have been recorded. He has also admitted that the
name of the accused and the date in the body of said letter, are not
in his hand-writing.
59. Surendra Kumar Sondh (PW-188), DCP Zone IV
Bombay, recorded the confession of the appellant (A-95) on
13.7.1993 and 18.7.1993. He has stated that he was aware of the
provisions of Section 15 TADA. He has also admitted that it was
improper to continue the custody of the appellant (A-95) during the
period that is given for reconsideration, with the same police
officer who had produced the said accused before him on
13.7.1993.
60. After appreciating the entire evidence on record, the learned
Special Judge found, that the confession of the appellant (A-95)
clearly revealed that he had travelled to Dubai at the behest of
Salim Kurla (A-65), and that thereafter, he had gone to Islamabad,
Pakistan and attended a training camp, where he had acquired
training in the operation of arms and ammunition, and that
thereafter, he had returned to Bombay via Dubai. The same has
been corroborated by the confessions of the other co-accused.
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Page 53
The Court has held that considering that the place of training
was a foreign country; the fact that the nature of training acquired
was to operate machine guns, AK-56 rifles, hand grenades, RDX,
to undertake the preparation of bombs, and to operate rocket
launchers etc.; the meetings attended after the said training; the
purpose of the training and the oath of secrecy taken by the
appellant (A-95); as well as all other relevant factors, it becomes
abundantly clear that all the above activities were directed towards
the commission of acts of violence against the people of Bombay,
and since the same were not directed against any particular person,
they could only be for the purpose of the commission of terrorist
acts. Hence, the appellant (A-95) had been trained for the
commission of terrorist acts.
61. It is evident from the evidence on record and the findings
recorded by the learned Designated Court, that the appellant (A-95)
had gone to Dubai at the behest of Salim Kurla (A-65) and,
thereafter, to Islamabad in Pakistan for attending the training
camps and acquired training in handling the arms and ammunition
and thereafter, returned to India via Dubai. There is evidence on
record that the appellant (A-95) came to know only after reaching
Dubai that he had to go with other four co-accused to Pakistan for
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Page 54
taking training as they had to take a revenge for suffering of
Muslims, and he was under a coercion that he alongwith others
could be arrested by the police of Dubai and, therefore, he had to
go to Pakistan for training. Even after coming back, there is no
evidence to show that the appellant (A-95) had committed any
offence and participated in any other act on the fateful day.
Further, as the appellant had obtained training for the commission
of the terrorist acts, he cannot be acquitted of the charges under
Section 3(3) TADA.
The submissions made on behalf of the appellant that he has
served about half of the sentence and it may be reduced as
undergone, is not acceptable, in view of the fact that it is
mandatory requirement under Section 3(3) TADA to award the
punishment to 5 years.
62. We do not see any force in the appeal, it lacks merit and,
accordingly, dismissed.
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Page 55
CRIMINAL APPEAL NOs.617-618 OF 2008
Ayub Ibrahim Qureshi ...Appellant
Versus
State of Maharashtra Thr. CBI (STF) ... Respondent
63. These appeals have been preferred against the judgment and
order dated 18.9.2006 and 19.7.2007, passed by a Special Judge of
the Designated Court under the TADA in the Bombay Blast Case
No.1 of 1993 by which the appellant has been found guilty under
Sections 3(3) and 5 TADA and Sections 3 and 7 read with Section
25(1-A) & (1-B) (a) of the Arms Act, and has been awarded a
punishment to undergo 5 years RI alongwith a fine of Rs.12,500/-,
and in default of payment of fine, he was ordered to suffer further RI
for a period of 3 months under Section 3(3), alongwith a similar
punishment as was awarded under Section 5 TADA. For conviction
under Sections 3 and 7, read with Section 25(1-A) (1-B)(a) of the
Arms Act, no separate punishment has been awarded. However, all
the sentences awarded were directed to run concurrently.
Hence, these appeals.
64. Fact and circumstances giving rise to these appeals are that :
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Page 56
A. In addition to the first charge of conspiracy, secondly, he
was charged for keeping one pistol and 52 rounds for four days in
April 1993, which were unauthorisedly given to him by co-accused
Nasim Ashraf Shaikh Ali Barmare (A-49) and the same is an offence
under Section 3(3) TADA.
B. Thirdly, he was charged for acquiring one pistol and 52
rounds during the aforesaid period from Ashraf Shaikh Ali Barmare
(A-49) and for concealing the same within the Railway Terminal
Compound, Yunus Manzil, Naupada and that thus, he had been in
possession of the said arms and ammunition and has therefore, been
charged under Section 5 TADA.
C. Fourthly, he (A-123) has been charged for possession of the
aforesaid arms and ammunition and thereby, for contravening the
provisions of the Arms Act, and therefore, has committed an offence
under Section 6 TADA.
D. Fifthly, he has been charged for the possession of the said
arms, and thus, for violating the provisions of Sections 3 and 7, read
with Sections 25(1-A) and (1-B)(a) of the Arms Act.
65. Ms. Farhana Shah, learned counsel appearing for the
appellant, has submitted that his possession of one revolver and 52
cartridges lasted only a period of 2-3 days. The same had been
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Page 57
handed over to him by Ashraf Shaikh Ali Barmare (A-49), and were
later recovered from an open public place, and not from the house of
the appellant (A-123). The incident of the blast had occurred on
12.3.1993, and the said recovery was made on 8.4.1993, and hence,
the same cannot be connected with the Bombay blast. The material
so recovered was in view of the disclosure statement made by the
appellant (A-123), and was never produced in court despite an order
passed by the Designated Court to this effect. Subsequently, the said
contraband were produced, but no explanation was furnished by the
prosecution for 20 cartridges that were missing.
66. Mr. Mukul Gupta, learned senior counsel appearing for the
CBI, has vehemently opposed the appeal contending that his
possession was conscious possession, and that the appellant (A-123)
was fully aware of the contents of the bag which was handed over to
him by Ashraf Shaikh Ali Barmare (A-49) and contained one
revolver and 52 cartridges and was also aware that it was illegal for
him to be in possession of such arms and ammunition. The same is
punishable under the provisions of TADA. Therefore, the appellant
(A-123) has rightly been convicted on the basis of his possession and
the present appeal is, therefore, liable to be dismissed.
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Page 58
67 We have considered the rival submissions made by the
learned counsel for the parties and perused the records.
68. Evidence against the appellant (A-123) :
(a) Confessional statement of Ashraf Shaikh Ali Barmare(A-49)
(b) Deposition of Chandrakant Vaidya (PW-40)
(c) Deposition of Ratansingh Kalu (PW-600)
(d) Deposition of Shri Vishnu Shinde (PW.615)
(e) Deposition of Waman Kulkarni (PW.662)
(f) Deposition of Krishanlal Bishnoi (PW-193)
In the instant case, there is no confessional statement of the
appellant Ayub Ibrahim Qureshi (A-123).
69. Confessional statement of Ashraf Shaikh Ali Barmare (A-49):
Confessional statement of co-accused (A-49) was recorded
by K.L. Bishnoi, DCP (PW-193) under Section 15 TADA, wherein
the said accused revealed that in the first week of April, he had given
one pistol and 52 rounds to the appellant (A-123) and that the
recovery of the same was made by the police on 8.4.1993 at the
disclosure statement of the appellant (A-123) in the presence of
Panch witnesses.
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70. Deposition of Chandrakant Vaidya (PW-40):
He was the Panch witness and has deposed that the appellant
(A-123) took them to Railway Terminal Compound Yunus Manzil,
Naupada, and got the recovery of one pistol and 52 rounds made
after digging the earth there. He also deposed about the Panchnama
(Ex.127) prepared in this respect by Ratansingh Kalu (PW-600).
71. Deposition of Ratansingh Kalu (PW-600):
He corroborated the evidence of Chandrakant Vaidya (PW-
40) that the appellant (A-123) took the police party to Railway
Terminal Compound Yunus Manzil, Naupada, and on his disclosure,
the police recovered one pistol and 52 rounds and he prepared the
Panchanama (Ex. 127).
72. Deposition of Shri Vishnu Shinde (PW.615):
He just proved the signature of PSI Shri Pharande on
(Ex.2177), forwarded letter to the Chemical Analyzer.
73. Deposition of Waman Kulkarni (PW.662):
He deposed that Chemical Analyzer report dated 7.6.1993
(Ex.2177) was received by him on 30.6.1993.
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74. Deposition of Krishanlal Bishnoi (PW-193):
PW-193, a police officer (DCP), deposed that he had
recorded the confessional statement of Ashraf Shaikh Ali Barmare
(A-49) which he made voluntarily and all the statutory provisions of
TADA were strictly adhered to.
75. After considering the entire evidence on record, the
Designated Court held that contraband articles which had been
recovered from Ayub Ibrahim Qureshi (A-123), were received from
Ashraf Shaikh Ali Barmare (A-49) and the appellant (A-123)
concealed the same by digging up the earth in close vicinity of
railway station. The appellant (A-123) has accepted the said articles
from Ashraf Shaikh Ali Barmare (A-49), knowing the nature of the
arms and ammunition. The appellant (A-123) did not make any
attempt to rebut the knowledge about the nature of the arms and
ammunition. Therefore, the conclusion has been drawn that the
appellant (A-123) was in possession of the contraband material
unauthorisedly within notified area of Bombay and, thus, committed
the offence under Section 5 TADA. Further, the appellant (A-123)
committed perpetratory act for commission of terrorist acts and,
hence, was held guilty under Section 3(3) TADA. However,
considering the quantum of rounds and pistol possessed by the
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appellant and the duration for which it was held, he was not found
guilty under Section 6 TADA.
76. We have reappreciated the evidence on record and
considered the arguments advanced by Ms. Farhana Shah. We do not
see any cogent reason to take a view different from that of the
learned Designated Court. The involvement of appellant (A-123) in
the offences for which the charges have been found proved against
him by the Designated Court, stood fully established. Appellant had
been given the contraband material by A-49, and he (A-123) was
fully aware of the nature of the weapon and cartridges. The
relevant Panchnama, i.e., the statement in the memorandum
Panchnama, the oral evidence of Chandrakant Vaidya, panch witness
(PW-40) and evidence of Ratansingh Kalu (PW-600) connect the
appellant (A-123) in concealing the weapon and ammunition.
As the provisions of Sections 5 and 3(3) TADA provide for a
minimum sentence of 5 years, this Court cannot award a punishment
lesser than what is prescribed under the statute. We do not see any
reason to interfere with the impugned judgment and order and
appeals lack merit and are, accordingly dismissed.
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CRIMINAL APPEAL NO.1631 OF 2007
Mohd. Yunus Gulam Rasool Botomiya ...Appellant
Versus
State of Maharashtra ... Respondent
77. This appeal has been preferred against the judgment and
order dated 30.5.2007 passed by a Special Judge of the Designated
Court under the TADA in Bombay Blast Case No.1 of 1993 by
which the appellant (A-47) was found guilty for offence punishable
under Section 3(3) TADA and sentenced to suffer RI for 6 years and
ordered to pay a fine of Rs.25,000/- and in default of payment of fine
ordered to suffer further RI for a period of 6 months under Section 5
TADA, and sentenced to suffer RI for 6 years and ordered to pay a
fine of Rs.25,000/- and in default of payment of fine ordered to
suffer further RI for a period of six months; and under Sections 3
and 7 read with Section 25(1-A) (1-B)(a) of Arms Act, but no
separate sentence awarded on said count.
All the sentences awarded to the appellant (A-47) were
ordered to run concurrently.
Hence, this appeal.
78. Facts and circumstances giving rise to this appeal are that :
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A. In addition to the main charge of conspiracy, the appellant
was further charged with keeping in possession one AK-56 rifle,
980 cartridges and 132 magazines of AK-56 rifles between January
and April, knowing that they were being smuggled into the country
for committing terrorist acts, thereby committing an offence under
Section 3(3) TADA.
B. Further, he was charged with the unauthorised possession of
firearms in the notified area of Greater Bombay, thereby
committing the offence under Section 5 TADA.
C. He was further charged with aiding and abetting terrorists
under Section 6 TADA and under Sections 3 and 7 read with
Section 25(1-A) and (1-B) (a) of the Arms Act.
79. Mr. Mushtaq Ahmad, learned counsel for the appellant has
submitted that the appellant is an auto-rickshaw driver and a simple
recovery being made at the behest of the appellant cannot be enough
to implicate him. It was further urged that the recovery was made
from a public place and therefore, loses its significance. Timings and
procedure of recovery are doubtful as signatures of the appellant
were not taken on the panchnama. Thus, the appeal should be
allowed.
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80. Mr. Mukul Gupta, learned senior counsel for the State has
vehemently opposed the appeal submitting that the recovery effected
on the basis of the disclosure statement of the appellant has been
corroborated by several witnesses. Thus, no fault could be found
with the impugned judgment. Therefore, the appeal is liable to be
dismissed.
81. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
82. The evidence against the appellant (A-47) is the recovery of
weapons made at his instance. On 2.4.1993 at the instance of
appellant, Eknath Jadhav (PW.606) in the presence of Samir
(PW.34) Panch Witness prepared the memorandum Panchnama
Exh.93. In pursuance of the same, the accused led the Panchas and
the Police to the terrace of Raziya Manzil near Radhe Shyam
Theatre. Samir (PW.34) in his examination-in-chief stated that bags
contained one rifle and six swords, and the blue coloured rexine bag
contained 980 cartridges and 32 rifle magazines which were taken
out.
83. The police seized the said articles and seizure panchnama
(Ext.94) was prepared by Jadhav (PW.606) upon obtaining the
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signatures of the panch witnesses. The said articles were sent to FSL
for expert opinion and a positive FSL Report was received by the
Police.
84. The recovery of arms and ammunition from the appellant
(A-47) in a notified area of Greater Bombay has been established by
Ekanth Jadhav (PW.606) and Samir (PW.34). The recovery was
made at his instance vide Memorandum Panchnama (Ex.No.93) and
Seizure Panchnama (Ex.No.94). Since the recovery has been made
in a notified area of Greater Bombay, the statutory presumption
arose that the arms were acquired by the appellant for the purpose of
committing terrorist acts. It is for the accused to discharge the
presumption.
85. There is nothing on record to show that Samir (PW.34) and
Jadhav (PW.606) would depose falsely against the appellant (A-47)
as they had faced the long cross-examination but nothing could
surface to make their evidence unworthy of reliance for the matter
deposed by them. It was stated by Jadhav (PW.606) in his cross
examination that he had not obtained the signatures of the accused
on Ex.93, i.e. Panchnama. The depositions made by Samir (PW.34)
and Jadhav (PW.606) corroborated the evidence of each other and
again their evidence stand corroborated by the recovery of
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Panchnama. Samir (PW.34) is an independent and natural witness
and merely because he appeared for the prosecution, or he hails from
the Worli area, it cannot be presumed that he had been deposing
falsely at the behest of the police/prosecution. The information
divulged by appellant (A-47) i.e., the one recorded in Panchnama
Ex.93 revealed that the appellant had full knowledge regarding
contraband material being at a place stated by him. The fact that it
had been recovered on the basis of disclosure statement of the
appellant (A-47) and he has led the police team to that place proves
the recovery. It stands further proved that the AK-56 rifle sent for
FSL was an assault rifle in working condition, and the bullets
recovered were live bullets. The submission made at the behest of
the appellant (A-47) that alleged recovery was from open place and
therefore, was not worth credence and the evidence on record failed
to establish consensus position by the appellant (A-47) of contraband
material, does not hold any merit. More so, merely producing the
copy of the passport to show that appellant (A-47) was not resident
of the Razia building does not show that the appellant (A-47) had no
concern with the premises in Razia building. The recovery has been
made from the terrace of the premises in Razia buildings and the
contraband material had been found hidden beneath the waste
material placed therein. There cannot be any dispute regarding the
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timings, as the first Panchnama has been prepared early in the
morning at 5 a.m. and then recovery was made later from the place
pointed out by the appellant (A-47) himself. Therefore, there cannot
be any fault with the timings etc. for the reason that the first
Panchnama was prepared at 5 to 5.30 a.m. and the second one was at
about 7.00 a.m. to 7.30 a.m. as disclosed by Jadhav (PW.606) in his
cross-examination. Thus, it shows that there was recovery of one
AK-56 rifle, 980 cartridges of AK-56 rifle, 32 magazines of the
same. Entries of the same had been made in the Panchnama giving
full details, as to how those articles were found wrapped in gunny
bags, rexene etc. and how they were subsequently wrapped after the
recovery. Samir (PW.34), the panch witness who identified the
recovered articles in the court, pointing out that the said contraband
had been recovered at the behest of the appellant (A-47). Letter `B'
had been written on the butt of the AK-56 rifle which was also found
on the said rifle when examined in the court.
In his statement under Section 313 Cr.P.C. before the court,
the appellant (A-47) denied all the allegations made by the
prosecution and stated that he had been falsely roped in. Further,
he had not made any disclosure statement nor any recovery had been
made at his behest. The Police was searching one Botomiya and
arrested the appellant (A-47) though his name is Bhoronliya.
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86. The Designated Court after considering the entire evidence
on record came to the conclusion that evidence of Samir (PW.34)
and Jadhav (PW.606) can be relied upon. The contraband material
had been recovered from Razia buildings at the behest of the
appellant (A-47) and the recovery was rightly made and Panchnama
in this regard was worth reliance. There is neither rule of law nor
legal precedent that the signatures of the accused (A-47) is required
to be obtained upon the Memorandum Panchnama or the Discovery
Panchnama. There is no force in this submission made at the behest
of the appellant (A-47). Though, the contraband articles had been
recovered from open space but the articles had been concealed under
the waste material, so it loses the significance of being recovered
from the open space on the terrace. The recovery stood established
by cogent evidence.
87. The submission made by Mr. Mushtaq Ahmad, learned
counsel appearing on behalf of the appellant that the recovery was
made from a public place and therefore, could not be relied upon
and cannot be accepted, as it is the accused alone on whose
disclosure statement the recovery was made and it is he alone, who
is aware of the place he has hidden the same. It cannot be presumed
that the other persons having access to the place would be aware
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that some accused after the commission of an offence has concealed
the contraband material beneath the earth or in the garbage.
88. In State of Himachal Pradesh v. Jeet Singh (supra), this
Court held:
" There is nothing in Section 27 of the
Evidence Act which renders the statement of the
accused inadmissible if recovery of the articles
was made from any place which is "open or
accessible to others". It is a fallacious notion
that when recovery of any incriminating article
was made from a place which is open or
accessible to others, it would vitiate the
evidence under Section 27 of the Evidence Act.
Any object can be concealed in places which
are open or accessible to others".
89. Similarly, in Gurjinder Singh v. State of Punjab, AIR 2011
SC 972, this Court held that if a weapon was hidden by digging the
earth and could be recovered only be removing the earth, it is not
desirable to entertain the argument that recovery had been made
from a public place which could have been easily accessible to
anyone. The Court further held:
"......In our opinion, such trivial mistakes
should not give any benefit of doubt or any sort
of benefit to the accused. In fact, the recovery
was made in the presence of Ajaib Singh,
Assistant Sub-Inspector and Balbir Singh, Head
Constable. It is also not correct that the memo
of recovery was not produced before the Court.
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Exhibit P-46, which reveals the fact about
the statement made by the accused in relation
to pistol incorporates the entire statement made
by the accused. Therefore, the said document
itself incorporates the statement made by the
accused. Moreover, simply because the
recovery was made in the presence of
policemen would not adversely affect the
prosecution case......."
90. In State Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1
SCC 652, this Court held:
"In this context we may point out that there
is no requirement either under Section 27 of the
Evidence Act or under Section 161 of the Code
of Criminal Procedure, to obtain signature of
independent witnesses on the record in which
statement of an accused is written. The legal
obligation to call independent and respectable
inhabitants of the locality to attend and witness
the exercise made by the police is cast on the
police officer when searches are made under
Chapter VII of the Code.
Hence it is a fallacious impression that
when recovery is effected pursuant to any
statement made by the accused the document
prepared by the investigating officer
contemporaneous with such recovery must
necessarily be attested by the independent
witnesses......The court has to consider the
evidence of the investigating officer who
deposed to the fact of recovery based on the
statement elicited from the accused on its own
worth.
We feel that it is an archaic notion that
actions of the police officer should be
approached with initial distrust. We are aware
that such a notion was lavishly entertained
during the British period and policemen also
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knew about it. Its hangover persisted during
post-independent years but it is time now to
start placing at least initial trust on the actions
and the documents made by the police. At any
rate, the court cannot start with the
presumption that the police records are
untrustworthy. As a proposition of law the
presumption should be the other way around.
That official acts of the police have been
regularly performed is a wise principle of
presumption and recognised even by the
legislature. Hence when a police officer gives
evidence in court that a certain article was
recovered by him on the strength of the
statement made by the accused it is open to the
court to believe the version to be correct if it is
not otherwise shown to be unreliable. It is for
the accused, through cross-examination of
witnesses or through any other materials, to
show that the evidence of the police officer is
either unreliable or at least unsafe to be acted
upon in a particular case. If the court has any
good reason to suspect the truthfulness of such
records of the police the court could certainly
take into account the fact that no other
independent person was present at the time of
recovery. But it is not a legally approvable
procedure to presume the police action as
unreliable to start with, nor to jettison such
action merely for the reason that police did not
collect signatures of independent persons in the
documents made contemporaneous with such
actions."
91. In view of the above, merely because the contraband was
recovered from a public place, i.e. a place accessible to the public at
large, the same does not mean that the recovery is to be discarded.
In case, the articles had been hidden by digging up the earth,
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covering the same up with garbage or other material, the public may
not have taken note of it. The same remained in the specific
knowledge of the accused, i.e. where and also the manner in which
the said articles were hidden.
Moreover, the recovery cannot be discarded for want of
signature of the accused on the recovery memo.
92. In view of above, none of the arguments advanced on behalf
of the appellant is tenable. We do not see any force in the appeal. It
lacks merit and is, accordingly, dismissed.
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CRIMINAL APPEAL NO. 1419 OF 2007
Mohamed Dawood Mohamed Yusuf Khan ...Appellant
Versus
State of Maharashtra ... Respondent
93. This appeal has been preferred against the judgment and
order dated 30.5.2007, passed by a Special Judge of the
Designated Court under the TADA for the Bombay Blast Case
No.1/93, Greater Bombay, by which the appellant has been
convicted under Section 3(3) TADA and has been sentenced to
suffer RI for six years, alongwith a fine of Rs. 25,000/-, and in
default of payment of fine to further undergo six months RI; and
under Section 5 TADA, the same sentence has been awarded. He
has further been convicted under the Arms Act, but no separate
sentence has been awarded for the same. Both the sentences have
been ordered to run concurrently.
94. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant
(A-91), in pursuance of criminal conspiracy during the period
between January 1993 and April 1993, had agreed to keep in his
possession, 3 AK-56 rifles, and 9 empty magazines, which were a
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part of the smuggled consignment, at the instance of accused Eijaz
(A-137-dead) in an unauthorised manner and thereby, has
committed an offence punishable under Section 3(3) TADA; and
that he had acquired 3 AK-56 rifles and 9 empty magazines and
had kept them in the notified area under Section 2 TADA, and
thus, he has been charged under Section 5 TADA.
B. Further, for possessing the said arms, the appellant has also
been charged under Section 6 TADA, and under the provisions of
Sections 3 and 7 read with Section 25(1-A) (1-B) (a) of the Arms
Act.
C. The appellant has been acquitted of the first charge, but has
been convicted under Section 3(3) and Section 5 TADA, and also
under the Arms Act, as has been mentioned above.
Hence, this appeal.
95. Shri Mushtaq Ahmad, learned counsel appearing for the
appellant, has submitted that the conviction of the appellant under
the provisions of Sections 3(3) and 5 TADA is not sustainable, as
the confessional statement of the appellant, as well as those of the
co-accused, are inadmissible in view of the same not being
voluntary, and having been made under coercion while in police
custody. The confessional statement had also been retracted just
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after the filing of the charge sheet. It has further been submitted
that the panch witnesses could not be relied upon as they were
stock witnesses. Therefore, the conviction is liable to be set aside,
and the appeal deserves to be allowed.
96. Shri Mukul Gupta, learned senior counsel appearing for the
State has vehemently opposed the appeal, submitting that the
confession of the appellant as well as those of the co-accused,
which have been relied upon, were made voluntarily. He has
further submitted that the retraction is not worth consideration, and
that the panch witnesses were not stock witnesses, and that
therefore, their testimony deserves to be allowed. Thus, the appeal
lacks merit and is liable to be dismissed.
97. We have considered rival submissions made by learned
counsel for the parties and perused the record.
98. Evidence against the appellant (A-91):
(a) Confessional statement of the appellant (A-91)
(b) Confessional statement of Eijaz Pathan (A-137)
(c) Deposition of Moiddin Kabir (PW-58)
(d) Deposition of Ashok Kumar Harivillas Pandey (PW-59)
(e) Deposition of Hirasingh K. Thapa (PW-278)
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(f) Deposition of Vijjay Dagdu Kadam (PW-344)
(g) Deposition of Suresh Ganpath Narathe (PW-522)
99. Confessional statement of the appellant (A-91) :
The appellant (A-91), in his confessional statement dated
29.4.1993 has stated that he had been acquainted with Munna (A-
24) and Eijaz Pathan (A-137 now dead). Seven-eight days before
Ramzan, at the instance of Eijaz Pathan (A-137), the appellant (A-
91) had gone to the office of M.K. Builders. From there, he
alongwith Munna and Eijaz had travelled in a Maruti car in which
one bag had also been placed. Eijaz had told the appellant (A-91)
that the bag contained 3 stun-guns, and that the appellant (A-91)
had to keep the same concealed in his house. The appellant (A-91)
had taken the said bag, containing the 3 stun-guns and 9 empty
magazines, to his house and kept the same in a Godrej almirah. He
had falsely informed his family members that the bag contained
some cutlery items that belonged to his employer, and had directed
that none of them must open it. After eight-ten days, the appellant
(A-91) had shifted the stun-guns from one bag to another and had
kept the same in his mother-in-law's house, and had told her
falsely that the bag contained certain items that belonged to his
friend, and that she must not open the same. It had been at his
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instance, that the police had made recoveries of the said arms from
the house of his mother-in-law.
The above version of events has been corroborated by Eijaz
Pathan (A-137-dead) in his confession recorded on 21st and 22nd
February 2003 by Pramod Mudbhachal, Dy.SP, CBI, STF in all
material respects.
A-91 retracted the confessional statement dated 29.4.1993
on 23.12.1993.
100. Suresh Narathe (PW-522), a Sub-Inspector of Police had
prepared the disclosure Panchnama Ext. 265 in the presence of
Ashok Kumar Harivillas Pandey (PW-59), panch witness, on
9.4.1993, and in pursuance of the said disclosure Panchnama, 3
AK-56 rifles and 9 empty black coloured magazines had been
recovered vide seizure Panchnama Ext. 281. The seized articles
had been sent to FSL for opinion, vide Ext. 1805 and a positive
FSL Report (Ext.1806) had thereafter, been received.
101. Viijay Dagdu Kadam (PW-344) a Sub-Inspector of
Police, who had arrested A-91 has stated that on 28.4.1993, the
appellant (A-91) had expressed his willingness to make a
confession voluntarily, and thus, he had written a letter on the very
same day to Shri Lokhande, DCP, for the purpose of recording his
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confession. He has proved the letter marked as Ext. X-211, and the
contents of the said letter have been found to be true and correct,
and the same also bear his signature. He had sent the recovered
materials for FSL for examination, vide letter dated 20.4.1993 (Ext.
1805). He has further deposed that on 10.5.1993, he had received
an FSL report regarding the articles that had been sent by him, and
has stated that the said report was positive.
102. Hirasingh K. Thapa (PW-278), watchman of the
Navjeevan Society where the appellant (A-91) resided, has
corroborated the confession of (A-91) in respect of the visit of
Munna (A-24) and Eijaz Pathan (A-137) to the said society on the
day that the said weapons had been given to the appellant (A-91).
Hirasingh K. Thapa (PW.278) has identified Munna (A-24) in the
T.I. Parade (Ext. 1490) held by Vithal Sonawane (PW-465).
103. Moiddin Kabir (PW-58) and Ashok Kumar Harivillas
Pandey (PW-59) were panch witnesses. Ashok Kumar Harivillas
Pandey (PW-59) had worked as a watchman at Saldhana
Apartments in Chembur for a long time. He has deposed that he
had been called to be a panch witness. He has proved the disclosure
panchnama, as well as the recovery panchnama, and it was in his
presence that the appellant (A-91) had made a disclosure as regards
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the 3 AK-56 rifles and 9 empty magazines. Their recovery had
been made at his behest from the residence of his mother-in-law.
Moiddin Kabir (PW-58) has also corroborated the version of
events provided by Ashok Kumar Harivillas Pandey (PW-59).
104. This charge against the appellant has been held to be proved,
and the Designated Court has come to the conclusion that Eijaz
Pathan (A-137) having received the contraband material within
notified area, gave the same to the appellant (A-91), who has
agreed to keep the said material with him. It was held that Eijaz
Pathan (A-137) having kept the bag of contraband at the house of
the appellant (A-91), thereafter the further act of the appellant (A
-91) in shifting the same to the house of his mother-in-law clearly
shows that he had dominium and control over the same. The
accused falsely told his family members and later on to his mother-
in-law that the bags contained goods of his friend and the same
may not be opened. Hence, the appellant (A-91) being in
unauthorised possession of contraband in notified area of Bombay
was guilty under Section 5 TADA. Similarly, the appellant (A-91)
would also be guilty for commission of offences under Section
3(3) TADA and under Sections 3 and 7 read with Section 25(l-A)
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(l-B)(a) Arms Act. More so, recovery was made at his behest and
on his disclosure statement.
105. It has been held that considering the manner in which, and
the reason because of which the appellant (A-91) had agreed to
keep the said contraband at his house, and the fact that the same
had not been for the purpose of aiding a terrorist, appellant (A-91)
was not held guilty for the offence under Section 6 TADA.
106. Furthermore, considering the fact that the said acts had been
committed by the appellant (A-91) at the behest of Eijaz Pathan
(A-137), and that the same cannot be said to have been done for the
purpose of furthering the object of a criminal conspiracy i.e. first
charge, or even a smaller facet of the same, and there being no
evidence available to establish the nexus of the appellant (A-91)
with such a conspiracy, he was not held guilty of conspiracy i.e. of
the first charge.
107. In view of the aforesaid evidence, it becomes clear that the
appellant (A-91) had kept in his possession unauthorisedly
weapons at the behest of Eijaz Pathan (A-137-dead). The appellant
told his mother-in-law and other family members that the goods
belonged to his friend, and nobody should open the same. The
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recovery of the same at his behest stood proved. The prosecution
successfully proved its case and to that extent he has been
convicted by the Designated Court. We find no cogent reason to
interfere with the judgment of the learned Designated Court. The
appeal lacks merit, and is accordingly dismissed.
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CRIMINAL APPEAL NO.1226 OF 2007
Ramesh Dattatray Mali ...Appellant
Versus
State of Maharashtra ... Respondent
108. This appeal has been preferred against the judgment and
order dated 21.5.2007 passed by a Special Judge of the Designated
Court under the TADA in the Bombay Blast case No. 1/93, Greater
Bombay by which the appellant (A-101) has been found guilty
under Section 3(3) TADA, and on this count, the appellant has
been sentenced to suffer RI for 6 years and also ordered to pay a
fine of Rs.25,000/-, and in default of payment of fine to further
suffer RI for 6 months.
109. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant
(A-101) has been charged with intentionally aiding and abetting
terrorists, by allowing them to smuggle and transport arms and
ammunition into India from abroad, by the illegal omission of the
appellant (A-101) to thoroughly check the motor lorries carrying
such arms and ammunition as well as other contraband, though the
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same had been intercepted by the police party on the night of
9.1.1993, at Gondghar Phata and had been allowed to carry on, in
lieu of the payment of a bribe of Rs.7 lacs, which had been agreed
to and accepted by all of them, upon negotiation with terrorists.
Hence, the appellant has been charged under Section 3(3) TADA.
B. After his trial, the appellant (A-101) has been acquitted of
the first charge, but has been convicted under Section 3(3) TADA
and has been sentenced as referred to hereinabove.
Hence, this appeal.
110. Mrs. Anagha S. Desai, learned counsel appearing for the
appellant (A-101) has submitted that there is nothing on record to
show that the appellant (A-101) had any knowledge regarding the
smuggling of arms and ammunition. At most, he may be guilty
under the provisions of the Prevention of Corruption Act or of a
violation of the Customs Act, or of FERA, but he certainly cannot
be convicted under the provisions of TADA. Therefore, the appeal
deserves to be allowed.
111. Shri Mukul Gupta, learned senior counsel appearing for the
State, has submitted that the Hawaldar Mali, has been specifically
named by the co-accused Uttam Shantaram Potdar (A-30), thereby
revealing the fact that he had been the one counting the silver
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bricks in the truck when the same had been intercepted at
Gondghar Phata. Thus, the appeal lacks merit, and is liable to be
dismissed.
112. We have considered rival submissions made by the learned
counsel for the parties and perused the records.
113. Evidence against the appellant :
(a) Confessional statement of Uttam Shantaram Potdar (A-30)
(b) Deposition of Dinesh Gopal Nakti (PW-95)
(c) Deposition of Krishnakant Nathu Ram Birade (PW-96)
(d) Deposition of Dilip Biku Pansare (PW-97)
(e) Deposition of Yeshwant Kadam (PW-109)
(f) Deposition of Vinod Chavan (PW-590)
114. Confessional statement of Uttam Shantaram Potdar (A-30):
Uttam Potdar (A-30) in his confessional statement recorded
on 15.7.1993, has given details of the landing on 9.1.1993, of the
smuggling of the contraband, silver etc. and about the interception
of the two trucks carrying the contraband by the police party at
Gondghar Phata. It was here that Uttam Potdar (A-30), has
revealed that he had given illegal gratification for the earlier
landings to Ramesh Mali, Hawaldar (A-101). He (A-30) has
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further stated that Mechanic Chacha (A-136) had offered the police
party a sum of Rs.10 lacs. Ramesh Mali (A-101) and Ashok
Narayan Muneshwar (A-70) had been the ones counting the bricks
in the truck. In one truck there had been 175 bricks, and in the
other truck there were about 100 bricks and some boxes were also
there. Upon being asked, Mechanic Chacha (A-136) had told the
police that the boxes contained wrist watches. As the smuggling
party did not have cash, Mechanic Chacha (A-136) had removed 5
silver bricks from the truck and had given the same to Havaldar
Pashilkar. This version of interception and checking etc. stands
corroborated by Jaywant Keshav Gurav (A-82), Mohd. Sultan
Sayyed (A-90), Salim Kutta (A-134) and Mechanic Chacha (A-
136), to the extent that the smuggling party had in fact been
intercepted by the police, and that without naming the appellant,
they have described how they had been detained, and subsequently,
how they were released after negotiations that lasted about half an
hour, and as regards how since they did not have cash, they had
delivered 5 silver bricks to the police.
115. Dinesh Gopal Nakti (PW-95) and Krishnakant Nathu
Ram Birade (PW-96) were labourers with Uttam Potdar (A-30),
who had been the landing agent in the relevant incident. They have
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deposed that on 9.1.1993, they had gone alongwith 12 other
labourers to Dighi Jetty, for the said landing. They have further
deposed as regards how the goods were smuggled and transported,
but they have not named the appellant (A-101) specifically, as
being a member of the intercepting police team.
116. Dilip Biku Pansare (PW-97) was a mechanic in the State
Transport Corporation, but had also been assisting Uttam Potdar
(A-30) in his smuggling activities and it was he who had been
driving the vehicle carrying the smuggled articles on 9.1.1993 from
Dighi Jetty to Bombay. Two trucks carrying smuggled goods had
been intercepted by the police party at Gondghar Phata. The
vehicles had been stopped and checked. On their asking, the police
had been told that the smuggled goods were silver and that there
were also some boxes that contained glassware. He has further
provided details with respect to how the police party had behaved,
but did not name the appellant specifically.
117. Yeshwant Kadam (PW-109) and Vinod Chavan (PW-590)
are the witnesses to the recovery of Rs.15,000/- from the appellant
(A-101). In his examination under Section 313 Cr.P.C., the
appellant (A-101) has submitted that Vinod Chavan (PW-590) had
not made any such recovery, rather, on 21.4.1993 the appellant's
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wife had gone to the Shrivardhan Police Station and had given a
sum of Rs.15,000/- that had been brought by her by pledging her
ornaments with the Mahad Cooperative Urban Bank to avoid
harassment, as the same had been demanded by the Police. The
Police has shown the said amount to be the amount recovered from
the appellant (A-101), by drawing up a false panchnama Exh.563,
to this effect.
118. The Designated Court has dealt with all the aforesaid issues,
and after appreciating the entire evidence on record so far as the
appellant (A-101) is concerned, the Designated Court has held that
Uttam Potdar (A-30) has revealed the involvement of the appellant
(A-101) in the relevant episode. His confessional statement to this
effect stands corroborated by the material in the confessions of
Jaywant Keshav Gurav (A-82), Mohd. Sultan Sayyed (A-90),
Salim Kutta (A-134) and Mechanic Chacha (A-136), which
establishes the presence of the police party of the Shrivardhan
Police Station at Gondghar Phata, and further the transportation of
contraband goods being permitted in return for the receipt of bribe.
Thus, the court has reached the conclusion that the appellant (A-
101) was in fact involved in the commission of the offence under
Section 3(3) TADA, though he was not found guilty of the general
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charge of conspiracy, as has been mentioned in the first general
charge.
119. The present case is a clear case where a police party had
intercepted and checked trucks carrying the smuggled
goods/articles i.e. arms, ammunition and contraband, and has,
after negotiating for half an hour, with such party, permitted them
to proceed further after receiving the decided bribe amount i.e.
silver bricks in lieu of cash which was to be paid later on.
We are unable to agree with the submissions of Ms. Desai,
with reference to the retracted confessions not being admissible in
view of the law laid down by this court in Aloke Nath Dutta &
Ors. v. State of West Bengal, (2007) 12 SCC 230.
For the foregoing reasons, the appeal lacks merit, and is
accordingly dismissed.
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CRIMINAL APPEAL NO.1422 OF 2007
Shaikh Asif Yusuf ...Appellant
Versus
State of Maharashtra ... Respondent
120. This appeal has been preferred against the judgment and
order dated 31.5.2007, passed by a Special Judge of the Designated
Court under the TADA in the Bombay Blast Case No.1 of 1993,
convicting the appellant under Sections 3(3), 5 and 6 TADA and
under Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of the
Arms Act.
121. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he has been
charged under Section 3(3) TADA, for agreeing to keep in his
possession, in the notified area, 4 hand-grenades that had been
given to him by the co-accused Nasim Ahmed Ashraf Qureshi (A-
49), in an unauthorised manner, which had formed a part of the
consignment that had been smuggled into India by the conspirators
knowingly and intentionally, for the purpose of committing
terrorist acts.
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B. The appellant (A-107) has also been charged under Sections
5 and 6 TADA, and Sections 3, 7 and 25(1-A)(1-B)(a) of the Arms
Act for keeping the aforementioned 4 hand-grenades that had been
given to him by the co-accused Nasim Ahmed Ashraf Qureshi (A-
49), in his possession.
C. The appellant has been convicted under section 3(3) TADA
and has been sentenced to suffer RI for 5 years, and has been
ordered to pay a fine of Rs.25,000/-, and in default to suffer further
RI for 6 months. The appellant has also been convicted under
Section 5 TADA and has been sentenced to suffer RI for 8 years,
and to pay a fine of Rs.50,000/-, and in default to suffer further RI
for one year. The appellant has also been convicted under Section
6 TADA and has been sentenced to suffer RI for 8 years, and to
pay a fine of Rs.50,000/- and in default to suffer further RI for one
year. The appellant has also been found guilty under the provisions
of the Arms Act, but no separate sentence has been awarded for the
said offences. All the sentences have been directed to run
concurrently.
Hence, this appeal.
122. Shri Mushtaq Ahmad, learned counsel appearing for the
appellant, has submitted that the appellant has been convicted by
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the learned Special Judge merely on the basis of surmises and
conjectures and there is no evidence on the basis of which, the said
conviction can be sustained. Chandrakant Atmaram Vaidya (PW-
40), who has been relied upon for conviction had been a stock
panch witness, and had been easily available to the police. The
recovery had been made from an open area, to which a large
number of persons had access. Therefore, the recovery and the
panchnama in respect thereof, including the disclosure statement
that has allegedly been made by the appellant cannot be relied
upon. The appellant has been handicapped since his childhood, and
thus, his right hand is impaired. Furthermore, he has already
served more than 5 years in jail. Thus, the appeal deserves to be
allowed.
123. Shri Mukul Gupta, learned senior counsel appearing for the
respondent, has submitted that the recovery had been made on the
basis of the disclosure statement of the appellant, and had been
made strictly in accordance with the requirements of Section 27 of
the Evidence Act, and therefore, has rightly been relied upon. No
fault can be found with the impugned judgment and order. The
appeal lacks merit and is therefore, liable to be dismissed.
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124. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.
125. Evidence against the appellant (A-107):
(a) Confessional statement of Nasim Ashraf Shaikh Ali
Barmare(A-49)
(b) Deposition of Chandrakant Atmaram Vaidya (PW-40)
(c) Deposition of Ratansingh Kalu Rathod (PW-600)
The appellant (A-107) has not made any confession.
126. Confessional statement of Nasim Ashraf Shaikh Ali
Barmare (A-49) :
As per the confessional statement of A-49, the appellant (A-
107) had gone to Dubai alongwith several other co-conspirators
and co-accused to the house of Tiger Memon (AA) and his brother
Yakub, and from there he had also gone to Pakistan to receive
weapons' training, and had infact, received the same. The
appellant had learnt how to explode black soap (RDX) with a
safety fuse, or by a battery after inserting into the chemical, a small
aluminium coloured detonator. He had returned to India via Dubai.
In Dubai, Tiger Memon (AA) had spoken to the appellant and to
the other accused, about the atrocities that had been committed by
the Hindus, against the Muslims in Bombay, between December,
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1992 and January, 1993. After returning to India, the appellant had
attended a conspiratorial meeting that had been held at a flat on
Bandra Hill Road, on 9.3.1993 alongwith other 10 other accused,
including Tiger Memon (AA), Javed Chikna, Anwar and Usman
(PW.2).
The appellant (A-107) had participated in filling up RDX
which had been duly mixed with steel scrap, alongwith the other
co-accused in the intervening night of 11th and 12th March, 1993.
On 12.3.1993, Usman (PW.2) had given him 7 hand-grenades, one
loaded gun and a small plastic bag that had contained bullets, and
had directed him to go on his mission. He had gone to the Sahar
International Airport, and had thrown a hand-grenade there which
owing to the fact that it could not reach its target, had exploded
mid-way. Nasim Ashraf Shaikh Ali Barmare @ Yusuf (A-49) who
had been accompanying the appellant (A-107) at the said time, had
gotten frightened, and both of them had thus, run away from there
on a motor cycle. The co-accused (A-49) had given the appellant
(A-107), 4 hand-grenades and had told him to keep the same with
him for some time.
127. Chandrakant Atmaram Vaidya (PW-40), a panch
witness, has deposed that on 8.4.1993, he had gone to the Mahim
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Page 94
Police Station, upon being called there through a police havaldar.
Here, P.I. Rathod had told him that the person who was sitting
there, was actually an accused in the Worli Blast case, and wanted
to make a disclosure statement voluntarily. Upon being asked by
the witness, the accused had told him his name, which was Asif
Yusuf Shaikh (A-107), and he further told him that he could aid in
the recovery of certain bombs that had been hidden by him. The
police officer had recorded the statement of the accused and had
prepared the memorandum panchnama, which had then been
signed by the panch witnesses. On the basis of the disclosure
statement of the appellant (A-107), the police party had taken him
and the panch witnesses in a van, and the said van had been
stopped at a place upon a request made by the appellant (A-107). It
was a heap, in which there lay broken tiles. The appellant (A-107)
had removed the other things and the tiles, and had taken out a
plastic bag which had contained 4 hand-grenades. The police
inspector had prepared a panchnama, which had been read over to
the panch witnesses and had been duly signed by them. The four
labels, that had been duly signed by the police inspector, had then
been affixed to these bombs. All of them had then returned to the
Mahim Police Station. This witness has admitted in his cross-
examination, that he had also been the panch witness in another
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enquiry that had been made on 8.4.1993, wherein Ayub Ibrahim
Qureshi (A-49) had made a disclosure statement, on the basis of
which a recovery had been was made from a nearby area (Exh.127-
128). It has further been explained by him, that the place from
which the recovery had been made, was an open area and that a
large number of persons had access to it. The witness has further
stated that after the recovery in the first case was over, the police
havaldar had come and taken him back to become the panch
witness for another case, as during those late hours, no other panch
witness had been available.
128. Ratansingh Kalu Rathod (PW-600), a police Inspector
corroborated the evidence of Chandrakant Vaidya (PW-40), and
has narrated how the disclosure statement had been recorded, how
the memorandum panchnama had been prepared and also how, the
said recoveries had been made. He has pointed out that at the place
of recovery, the accused had removed items from the heaps, and
that after digging, had taken a bag containing four hand-grenades.
He has also given full details as regards how the two recoveries
had been made in a close proximity of time, and from nearby
places.
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Page 96
129. In his statement made under Section 313 of the Code of
Criminal Procedure, 1973, the appellant (A-107) has pleaded false
implication in the said case, and has stated that the said recoveries
had not been made at his instance, as he had never been in
possession of any hand-grenades.
130. On the issue of recovery, this Court in State of H.P. v. Jeet
Singh (supra), held :
"There is nothing in Section 27 of the Evidence
Act which renders the statement of the accused
inadmissible if recovery of the articles was made
from any place which is "open or accessible to
others". It is a fallacious notion that when
recovery of any incriminating article was made
from a place which is open or accessible to others,
it would vitiate the evidence under Section 27 of
the Evidence Act. Any object can be concealed in
places which are open or accessible to others. For
example, if the article is buried in the main
roadside or if it is concealed beneath dry leaves
lying on public places or kept hidden in a public
office, the article would remain out of the visibility
of others in normal circumstances. Until such
article is disinterred, its hidden state would remain
unhampered. The person who hid it alone knows
where it is until he discloses that fact to any other
person. Hence, the crucial question is not whether
the place was accessible to others or not but
whether it was ordinarily visible to others. If it is
not, then it is immaterial that the concealed place
is accessible to others." (Emphasis added)
131 In State of Maharashtra v. Bharat Fakira Dhiwar ,
(supra), this court dealt with the issue.
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Page 97
132. Thus, in view of the above, the submission made by Mr.
Mushtaq Ahmed, stating that as the recovery had been made from
an open place to which all persons had access, cannot be relied
upon and is not worth acceptance.
133. Undoubtedly, the appellant's disclosure statement had been
made before the police, as well as the panch witness. The fact that
he did not disclose the place where the contraband had been hidden
remains entirely insignificant, for the reason that he had led the
police party to the said place, and that the said recovery had been
made at his behest. The open space from where the recovery had
been made though was accessible to anybody, it must be
remembered that the contraband had been hidden, and that it was
only after digging was done at the place shown by the appellant,
that such recovery was made. Hence, it would have been
impossible for a normal person having access to the said place, to
know where the contraband goods were hidden.
134. Nasim Ashraf Shaikh Ali Barmare (A-49) in his confessional
statement, has disclosed that he had handed over the remaining
hand-grenades to the appellant. As the said contraband could not
have been used other than for the aforementioned terrorist
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activities, the submission advanced on behalf of the appellant,
stating that it was not proved that the contraband so hidden were to
be used for terrorist activities, cannot be accepted. In light of the
facts and circumstances of the case, it cannot be believed that the
appellant had not been aware of the contents of the contraband,
even though the same had been wrapped in carbon paper.
Furthermore, had the appellant not been aware of the
contents of the contraband, there would have been no occasion for
him to hide the same away after digging up the earth, and further to
yet again, cover up the said material with earth and heaps of items.
Thus, we are of the view that the appellant had been fully aware of
the contents thereof.
135. In view of the above, we concur with the conclusion that has
been reached by the learned Special Judge. Thus, the present
appeal lacks merit, and is accordingly dismissed.
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CRIMINAL APPEAL NO.1180 OF 2007
Mubina @ Baya Moosa Bhiwandiwala ...Appellant
Versus
State of Maharashtra ... Respondent
136. This appeal has been preferred against the judgment and
order dated 14.6.2007 passed by a Special Judge of the Designated
Court under the TADA in Bombay Blast Case No.1 of 1993, by
which the appellant has been convicted under Section 3(3) TADA,
and a punishment of five years rigorous imprisonment with a fine
of Rs. 25,000/-, and in default of payment of fine to suffer further
R.I. for 6 months was imposed.
137. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant
was charged with being an associate of Tiger Memon (AA),
abetting and knowingly facilitating the commission of terrorist acts
committed on 12.3.1993. She was further charged with facilitating
the holding of conspiratorial meetings on 9th and 10th March, 1993
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Page 100
in her flat in Bandra, wherein the terrorist acts came to be
discussed and finalised.
B. After conclusion of the trial, the learned Special Judge
convicted A-96 as referred to hereinabove.
Hence, this appeal.
138. Mr. Zafar Sadique, learned counsel for the appellant has
submitted that it was her brother who was a close associate of
Tiger Memon, and after the death of her brother she was given
some money for household expenses by Tiger Memon, and she did
not work for him or had any knowledge of her involvement in
terrorist activities. Thus, the appeal deserves to be allowed.
139. Mr. Mukul Gupta, learned senior counsel for the State
vehemently opposed this appeal by stating that her confession itself
reveals that she knew that Tiger Memon was a smuggler.
Moreover, the fact that conspiratorial meetings were held in her
house demonstrates her knowledge of the conspiracy, and being a
party to the same she should have also been convicted of the larger
conspiracy. Thus, the appeal is liable to be dismissed.
140. We have considered the rival submissions made by the
learned counsel for the parties and perused the records.
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Page 101
141. Evidence against the appellant:
(a) Confessional statement of the appellant Mubina @ Baya
Moosa Bhiwandiwala (A-96)
(b) Confessional statement of Asgar Yusuf Mukadam (A-10)
(c) Confessional statement of Abdul Gani Ismail Turk (A-11)
(d) Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)
(e) Confessional statement of Nasir Abdul Kadar Kewal @
Nasir Dhakla (A-64)
(f) Confessional statement of Niyaz Mohmed @ Aslam Iqbal
Ahmed Shaikh (A-98)
(g) Confessional statement of Zakir Hussein Noor Mohammed
Shaikh (A-32)
142. Confessional statement of the appellant Mubina @ Baya
Moosa Bhiwandiwala (A-96):
The evidence against the appellant (A-96) had been her own
confessional statement which revealed that her brother was a close
associate of Tiger Memon (AA) and indulged in smuggling
activities. Out of that ill-gotten money, he purchased the said flat
and other commercial properties and a car. However, subsequently,
when he was pursued by the Customs officials on 10.12.1990, he
jumped from the said building and died. Subsequently, she had
been living in the said flat alongwith her parents and widow of his
brother with a minor child. She was unmarried and 22 years of age
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Page 102
at that time. She deposed that after the death of her brother, Tiger
Memon (AA) had supported her family financially by paying
Rs.10,000/- per month for household expenses which had
subsequently been enhanced to Rs.20,000/- on being asked by her
father. The car purchased by her brother was being driven by the
appellant (A-96). Tiger Memon used to keep his own money at her
residence and it ranged from Rs. 1 lakh to 5 lakhs. She further
deposed that she personally knew Tiger Memon (AA) and had
been visiting him at his residence in Mahim. On 8.3.1993, Shafi
came to her house and handed her an envelope. On opening the
same, she found three passports and two tickets of Tiger Memon
(AA). Out of them, one ticket was of Air Emirates Bombay-
Dubai-Bombay and second was of Gulf Air Bombay-Abu Dhabi-
Bombay. Both the tickets had been purchased through East West
Travels and both of them had been for 12.3.1993. The said tickets
and passports had been taken by Asgar (A-10), an associate of
Tiger Memon (AA) on 11.3.1993 at 11.00 p.m. from her residence.
Samir Ahmed Hingora (A-53), owner of Magnum Videos, sent a
sum of Rs.50,000/- to her for household expenses twice. On
9.3.1993, a meeting was held at her residence at 8.00 o'clock in the
evening which was attended by Tiger Memon (AA) and his
associates. Tiger Memon (AA) was directing his men in the
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bedroom of the house for a period of approximately half an hour
and she and her family had been sitting outside. Usman (PW-2),
Javed, Bashir and Nashir alongwith 10-15 other boys came at her
residence. She opened the door. They asked for Tiger Memon
(AA) and she replied that he was inside. Tiger Memon (AA) spoke
to them, in the bedroom. Appellant was asked to prepare 15-20
cups of tea. After preparing the tea, she knocked the door of the
hall; one boy came and took the tea inside. Tiger Memon (AA)
and those persons were discussing about the plan. They left at
about 12.30 in the night. On the next day on 10.3.1993 at about
9.00 or 9.30 at night, those boys came again to her residence at the
instance of Tiger Memon and the appellant (A-96) asked them to
wait. Then, Tiger Memon (AA) came and discussed the plan with
those boys. Then all of them left her house at about 12.00 o'clock
at night. The police arrested the appellant after 4-5 days of bomb
blasts.
143. Confessional statement of Asgar Yusuf Mukadam (A-10):
He has corroborated the confessional statement of the
appellant (A-96) to the extent that he had collected the passports
and tickets kept with appellant (A-96) by which Tiger Memon
(AA) left for Dubai on 12.3.1993, early in the morning.
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Page 104
144. Confessional statement of Abdul Gani Ismail Turk (A-11):
His confessional statement revealed that on 7th March, 1993
in the evening, he went to accused Imtiyaz for taking the scooter
which he sold to him (A-11), then he came to know that Tiger
Memon (AA) had come back to Bombay from Dubai and he
wanted to meet him at Al-Husseini building. Abdul Gani Ismail
Turk (A-11) went there and met Tiger Memon (AA) at his
residence. He was there alongwith his parents and brothers.
Subsequently, Shafi took the accused (A-11) with him in the
Maruti car. Shafi stopped the car and went to make a call asking
accused (A-11) to wait at the house of Mubina alias Baya Moosa
Bhiwandiwala (A-96). He (A-11) reached at the flat of Mubina,
appellant (A-96). After sometime, Tiger Memon (AA) and Shafi
came there. Some other boys were also present there. On the
next day on 8.3.1993, he (A-11) went to the house of Tiger
Memon and after sometime, both of them went to the house of
Mubina, appellant (A-96) by the Maruti car of Tiger Memon. Tiger
Memon went up to her flat, though, accused (A-11) remained
sitting in the car. Shafi came down from her flat and went towards
Jogeshwari taking accused (A-11) in a Commander Jeep and
returned after one hour. He (A-11) found one bag in the jeep
which contained 2 rifles, 4-6 handgrenades and some bullets. Then
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they came back to the flat of Mubina, appellant (A-96). Tiger
Memon and other co-accused came down from her flat at about
11.30-12.00 o'clock at night and they left in jeep and Maruti car.
145. Confessional statement of Parvez Nazir Ahmed Shaikh, (A-12):
He deposed that in the second week of February 1993, he
alongwith other co-accused brought the contraband smuggled from
Dubai to Bombay in a jeep at 11.30 p.m. The jeep was parked at
the house of Mubina, appellant (A-96), and he handed over the
keys of the jeep to Mubina, appellant (A-96).
146. Confessional statement of Nasir Abdul Kadar Kewal @
Nasir Dhakla (A-64):
In his confessional statement, he stated that on 9.3.1993
Tiger Memon took him alongwith other co-accused to the flat of
Mubina, appellant (A-96) at Bandra, wherein he met all the persons
who got training in Pakistan. Again on 10.3.1993, he was called at
the house of appellant (A-96) for a meeting. He corroborated the
case of the prosecution that conspiratorial meetings were held at
the flat of Mubina (A-96) on 10.3.1993.
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Page 106
147. Confessional statement of Niyaz Mohmed @ Aslam Iqbal
Ahmed Shaikh (A-98):
In his confessional statement, he stated that on 8th and 9th
March, 1993, he was asked by Usman (PW-2) to be ready and he
went alongwith co-accused Irfan Chaugale to a flat at 3 rd floor in a
building behind Bhabha Hospital in Bandra. Some other persons
were there, including Tiger Memon, Javed Chikna, Bashir, Usman,
Sardar Khan and Parvez. After sometime, a girl, the appellant (A-
96) who was called by Tiger Memon, brought tea and served to all
of them.
148. Confessional statement of Zakir Hussein Noor
Mohammed Shaikh (A-32):
In his confessional statement, he stated that on 10.3.1993, on
instructions he went to attend the meeting at Bandra flat alongwith
Usman (PW-2). Tiger Memon was sitting there directing the group
of boys and assigning them different roles.
149. After appreciating the entire evidence on record, the
Designated Court came to the conclusion as under:
"51).Since the matters from the said
confession are so eloquent that hardly any
dilation would be necessary about the same.
However, the defence having urged that since
A-96 was not present in the relevant meeting in
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Page 107
which the discussion was made, she cannot be
held guilty for commission of any offence. It is
urged hence her confession fails to disclose her
involvement in commission of offence and as
such is liable to be discarded. It is urged that
in said event the material in confession of the
co-accused revealing that the meeting was held
at her house but again not revealing that she
was party to the said meeting will not be
sufficient to fastening guilt upon her.
52) The aforesaid submissions though
apparently appears to be attractive the same
does not stand to the reason. Considering
matters in entirety in the said confession it is
clear that Tiger Memon was also residing in
the nearby vicinity. In the said contingencies
Tiger Memon holding meeting of such a
number of persons at the house of Mubina itself
raises a grave doubt about the purpose for
which the said meeting was held by him at the
said house instead of his own house. Apart
from the same, careful consideration of the
material in the confession in terms reveal close
association developed in between Tiger Memon
and A-96. The other material pertaining to
keeping tickets of Tiger Memon at her house,
Tiger Memon paying money for the expenses
himself increasing the said amount upon the
say of father of A-96 are the circumstances
curiously throwing the light upon the
relationship in between them. Even the
material in the confession reveals that Tiger,
Memon had a talk with his friend after taking
him to the bed room in the said house. All the
said circumstances are self-eloquent.
53) Furthermore the recital in the confession
that after the Tea was taken "the said person
were discussing about their plan" is a recital
clearly revealing knowledge of A-96 of the
meeting being regarding the plan. Since in
cases of conspiracy direct evidence would
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never be available the said self-eloquent recital
is sufficient to infer about A-96 having full
knowledge about the purpose for which the
said meeting was held by Tiger Memon.
Needless to add neither the confession reveals
the reason because of which A-96 had allowed.
Tiger Memon to take the meeting in her house.
Furthermore even a trial, no explanation has
been given by A-96 regarding the said respect.
Thus considering the said act committed by A-
96 conclusion is inevitable about herself
knowing full well the purpose of the said
meeting had allowed Tiger Memon to hold the
same at her house and that too in spite of his
house being not far away from the said place.
Thus, the same clearly denotes of A-96 having
aided and abetted and assisted a Tiger Memon
for having a meeting for chalking out final
plans of conspiracy hatch. Thus all the said
material is sufficient for holding her guilty for
commission of offences under Sec. 3(3) of
TADA.
54) In the aforesaid context the defense
submission that A-96 was not alone residing in
the said flat or that her father and other
members of her family were also residing at the
said Flat and as such she cannot be said to be
responsible for granting the permission to
Tiger Memon for holding meeting in the said
flat as the same might have been given by
somebody else i.e. her father etc. also does not
stand to the reason. Such conclusion is
apparent as the material in her confession does
not support such a theory and on the contrary
the meeting held under nose on the relevant
day clearly signifies the same being held with
her concurrence. Needless to add that material
in the confession also denotes of affairs of the
said House being managed by her after the
death of her brother.
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55) Since the matters in the confession of A-
96 or at least the fact of meeting held in her flat
being corroborated material in the confession
of accused referred during the discussion made
earlier, the said aspect will not need any
reiteration. Having regard to the same the
matters in her confession which is disclosing
her involvement, i.e. the admission in
commission of the offence u/s.3(3)of TADA will
be required to be taken into consideration and
thus will be required to be acted upon. As a
result of the same, she will be required to be
held guilty for commission of the said, offence.
56) However, even accepting the said material
in her confession and even the conclusion
arrive about her guilt still it will be necessary
to say that the said material cannot be said to
be sufficient for holding her guilty for
commission of offence of an conspiracy for
which he is charge with at a trial. The same is
obvious that there exists no evidence of herself
having committed any act prior to this meeting
and even after the said meeting denoting that
she was the Member of the conspiracy. The
same is obvious as there is clearly paucity of
evidence to establish A-96 having committed
any other act furthering the object of such
conspiracy. Hence she cannot be held liable
for being party to the conspiracy, as even the
evidence pertaining to the said meeting reveals
that she has not participated in the same and
merely sent Tea and allowed Tiger Memon to
hold meeting at her residence.
57) Thus, taking into consideration the extent
and/or severity of act committed by A-96 and
the other relevant factors and having regard to
the basic principle behind awarding
punishment being to eradicate the element of
criminality and not to punish individual human
being entertaining same, herself being woman
accused, herself having faced a long drawn
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prosecution, role played by her cannot be said
to be of a severe nature, the probable reason
because of which she had committed the
relevant acts, herself being not the sole person
who had assisted Tiger Memon in the relevant
episode and even from said angle, act
committed by her clearly appearing to be on
much lower pedestal than such a role of
facilitation, assistance played by other co-
accused in the case, a minimum sentence
prescribed under the law i.e. a sentence of R.I.
for 5 years and a fine amount of Rs.25,000/-
with suitable addition of RI in default of
payment of fine for commission of offence
u/S.3(3) of TADA, ordered for A-96 would
serve the ends of justice."
(Emphasis supplied)
150 There is no evidence on record to show that the appellant
(A-96) is the actual owner of the flat where the meeting took place.
The appellant (A-96) was simply present in the next room when the
meeting was held and she was asked to serve tea. Further, it was
her brother who was well acquainted with Tiger Memon (AA) and
after his death Tiger Memon(AA) simply gave some money to her
family for household expenses and that money was not for her own
personal/individual expenditure. Moreover, while serving them tea
she might have overheard something about a plan that was being
formulated by the co-accused, but not being a party to the meeting
she could not have possibly known or understood the plan.
According to the prosecution case, she had been given air tickets
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by Tiger Memon (AA) to keep and one of the tickets had been
taken by him in the early morning hours of the day of the blasts i.e.
12.3.1993. There is nothing on record to show that the appellant
(A-96) knew that the blasts were going to take place on that day, or
that she had acquired any knowledge that Tiger Memon (AA)
would be absconding from India. Moreover, she was not a
participant in any overt act in furtherance of the conspiracy.
151. Due to the foregoing reasons, the appellant (A-96) is held to
be entitled for benefit of doubt. Thus, we allow the appeal and
acquit her for the charge under Section 3(3) TADA. The conviction
and sentence awarded by the Designated Court are set aside.
The appellant is on bail. Her bail bonds stand discharged.
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CRIMINAL APPEAL NO. 1225 OF 2007
Noor Mohammed Haji Mohammed Khan ...Appellant
Versus
The State of Maharashtra (through CBI, STF) ... Respondent
152. This appeal has been preferred against the judgments and
orders dated 23.11.2006 and 5.6.2007, passed by a Special Judge
of the Designated Court under the TADA in the Bombay Blast
Case No. 1/1993.
153. Facts and circumstances giving rise to this appeal are that :
In addition to the main charge of conspiracy, he has also
been charged under Section 3(3) TADA, for permitting the co-
accused Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his
associates, to store the contraband/explosive material/RDX in his
godown between the 2nd and 9th of February, 1993, and has further
been charged under Section 5 TADA, for possession thereof. He
has also been charged under the provisions of Section 6 of the
Explosive Substances Act, and the Explosives Rules, 1983 for
storing and concealing 58 bags of RDX explosive that had been
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smuggled into the country by the co-accused, between the 2 nd and
9th of February, 1993.
154. The appellant has been convicted under Section 5 TADA
and has been awarded a punishment of 5 years alongwith a fine of
Rs.1,00,000/-, and in default of payment of fine, to further undergo
3 years RI, and also under Section 201 IPC has been awarded a
punishment of 5 years, alongwith a fine of Rs.50,000/-, and in
default of payment of fine to suffer further RI for one year.
However, both the sentences have been directed to run
concurrently.
Hence, this appeal.
155. Shri Shree Prakash Sinha, learned counsel appearing for
the appellant, has submitted that the conviction of the appellant
which is based on the confession of the appellant, is not sustainable
for the reason that the confession itself has revealed, that the
appellant had refused to record any confession at the initial stages
of recording his confession. The same is evident from the
confessional statement itself, and Shri Sanjay Pandey, DCP (PW-
429), in light of this, ought not to have recorded his confessional
statement at all. The recoveries made at the behest of the appellant
cannot be relied upon, as the same do not connect the appellant
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with the same in any manner. Furthermore, the recovery has not
been made in accordance with law, for the simple reason that the
disclosure statement of the appellant, which was recorded under
Section 27 of Evidence Act was made simultaneously. The same is
shown to have been made at the time, when the appellant had been
present before the learned Designated Court, held at the Mahim
Police Station itself. While considering his application for remand,
no satisfactory explanation could be furnished by the prosecution
as regards how remand proceedings, and the recording of the
disclosure statement of the appellant could take place together. The
evidence suffers from material contradictions, and thus, ought to
have been rejected. Therefore, the appeal deserves to be allowed.
156. Shri Mukul Gupta, learned senior counsel appearing for the
State, has vehemently opposed the appeal contending that all
proceedings had been conducted strictly in accordance with law.
Undoubtedly, the confessional statement suggests, that appellant
had refused to make a confessional statement. However, upon a
cogent reading of the said statement, the impression created by the
learned counsel for the appellant stands completely dispelled. The
conviction of the appellant is based upon a correct appreciation of
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the evidence available. Thus, the appeal lacks merit and is liable to
be dismissed.
157. We have considered the rival submissions made by the
learned counsel for the parties, and perused the record.
158. Evidence against the appellant (A-50):
(a) Confessional statement of the appellant (A-50)
(b) Confessional statement of Shakeel Shahabuddin Shaikh (A-59)
(c) Confessional statement of Munna (A-24)
(d) Deposition of Upendra G. Patel (PW-33)
(e) Deposition of Wilson John Britto (PW-274)
(f) Deposition of Ajit Pratap Singh (PW-291)
(g) Deposition of Fazal Akbar Khan (PW-468)
(h) Deposition of Prakash Dhanaji Khanvilkar (PW-513)
(i) Deposition of Kailas Baburao Dawkhar (PW-518)
(j) Deposition of Dattatray Maruti Wayal (PW-521)
159. Confession of Noor Mohammed Haji Mohammed Khan (A-50):
The confession of appellant (A-50) was recorded on 14 th/16th
May, 1993. The appellant had been 32 years of age at the time of
the said incident. The relevant part of his confession suggests that
he had acquired land at Kashimira, measuring 1200 sq.mtrs. He
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(A-50) had known the co-accused Mohammad Jindran (now dead)
and Yeda Yakub (AA). The said plot was taken care of by a
watchman who had been appointed by him. The said watchman
had been removed by the appellant (A-50) on the basis of certain
complaints regarding his behaviour with a local girl, and another
watchman had thereafter, been appointed. When he (A-50) had
visited the said plot in the last week of February, 1992, he had seen
some sacks lying in the shed constructed thereon. The watchman
had told him that the said goods had been sent by Mohammad
15/20 days ago, through Shakeel (A-59-acquitted), the driver of
Mohammad, by way of a tempo. The appellant (A-50) had not
made any further enquiry as regards the same from the watchman,
or from Mohammad, with respect to the contents thereof. When he
had visited the place for the second time, he had removed the
contents, and had seen what looked like black soap. He had then
returned to Bombay, and had asked Mohammad about the goods.
Mohammed and Shakeel had denied having any information as
regards the said goods.
He (A-50) had again visited the site on 16 th/17th March, 1993
at Kashimira alongwith Rashid Khan, a businessman who dealt in
chemicals, and had taken out the packet. Rashid Khan, after
examining the contents of the packet thereof, had told him that the
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same was explosive material. Rashid Khan had taken the packet
with him, and had subsequently informed him that the same most
certainly contained material for making bombs. By this time,
certain material had been seized in Mumbra and due publicity had
been given to the same in the newspapers. It had been revealed that
the material belonged to Yeda Yakub. The appellant (A-50) had
then asked Rashid Khan to help him to destroy the material.
Rashid Khan had told him that he knew one Munna, who could
help them to destroy the same. The appellant (A-50) had then
decided to spend a sum of Rs.5 lakhs, for the purpose of destroying
the material as he had apprehensions regarding the incident of
recovery of the same material in Mumbra. They had met Munna at
the Lion Pencil Resort at Nangla. Munna had been assigned the
job of distribution of the material, and the appellant was informed
in the evening, that the said work had been completed. The
appellant had gone to Bombay and had given a Toyota Corolla car
to Rashid Khan, in lieu of payment of a sum of Rs. 3 lacs, and the
remaining amount had been paid by Mohammad.
After 3-4 days, he had gone to the site with Shakeel, and the
watchman had told him that some of the material had been left
behind. He had then put the remaining material in a jeep, had gone
with Shakeel, and Shakeel had then thrown the same along
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Kashimira Highway, from a bridge at a distance of about 6 Kms.
from Kashimira. As some of the said material had fallen down
outside of the water channel, the appellant had gone down with the
jeep, and had thrown the sacks containing left over material into
water and had then driven back to Bombay.
It was on 8th April that Munna had telephoned the appellant
(A-50) demanding the balance amount of Rs.2 lacs that had been
promised to him stating that, otherwise he (A-50) would face dire
consequences. The appellant had then informed Mohammad, who
had subsequently informed the police, and they had thus gotten
Munna arrested. After some interrogation, the appellant (A-50) had
also been arrested.
He (A-50) has further stated that he had not known that the
material was actually RDX. Once he had become aware of the
same, he had thrown the same into the water, apprehending his
arrest by the police. The remaining material had been thrown off
the bridge along the Kashimira Highway. He (A-50) had himself
taken the police to the said place and had gotten the material
recovered from there.
The appellant (A-50) had also made retraction of his
confession on 14th/16th May, 1993, at a belated stage.
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160. Confessional statement of Shakeel Shahabuddin Shaikh (A-59):
According to his confessional statement, he had been
working as the driver of Mohammad Jindran (AA). He had been
told in the second week of February, 1993 by his employer, that a
tempo was parked at Dahisar Checknaka, near the Delhi Darbar
Hotel, that contained sacks of cement and that he must unload the
same onto a plot that belonged to Noor Khan (A-50), who was a
friend of his employer's, i.e. of Mohammad Jindran's. A letter
had been given to him, so that the driver of the tempo would permit
Shakeel to unload the contents of the said tempo onto the land
belonged to Noor Khan (A-50). Shakeel had thus gone there, and
had contacted the driver of the parked tempo. He (A-59) had then
taken the said tempo and had off loaded the contents of same onto
the land of Noor Khan (A-50). There had been about 1200 to 1300
sacks, and also some square type boxes, that were wrapped and had
been kept alongwith the said sacks. The same were also unloaded.
He (A-59) had telephoned his employer after doing so, and had
informed him that the work had been done. The sacks and the
boxes had been unloaded at the Noor Khan's place. He (A-59) had
accompanied Noor Khan to the site, and had asked the watchman
there who were the owner of the material kept in his godown, and
it was then that he was told that the same belonged to Mohammad
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Jindran, and that Shakeel had brought the material there. Then,
Shakeel had told him that he had done so upon the instructions of
Mohammad Jindran.
Fifteen days after Eid, Noor Khan (A-50) had gone to the
office of Mohammad Jindran, and had asked him about the
material kept at his place and had said that he wanted his help to
throw it away. Shakeel had been asked by his employer to
accompany them. They had gone in a jeep to the Dahisar godown
of Noor Khan. There was some waste material in black colour
which was filled into a sack by them. Some bags were also kept
alongwith the said black coloured waste material. The sack had
been loaded by the watchman into the vehicle, and Shakeel,
alongwith Noor Khan (A-50) had proceeded from there. After
driving for about 10 Kms., their vehicle had been stopped upon the
instructions of Noor Khan (A-50) near a bridge, and Shakeel had
been asked to throw the sacks. After throwing the same off the
bridge, they had left the place. However, after driving for about 1
Km., Noor Khan (A-50) had asked Shakeel where he had thrown
the sacks. He was then informed, that the same had been thrown
near the water. Noor Khan (A-50) had then instructed him to take
the vehicle back, and after reaching the bridge Noor Khan (A-50)
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had himself gotten off from the vehicle and had gone under the
bridge, lifted the sack, and thrown the same into the water.
Noor Khan (A-50) had gone with Shakeel in the said
vehicle, to his residence at Mira Road. After their arrest, Shakeel
was the only person who had known that the material thrown by
him actually consisted of explosives.
161. Confessional statement of Munna @ Mohammad Ali @
Manoj Kumar Bhanwar Lal (A-24):
He had been 26 years of age at the time of the said incident,
and has confessed that he had started a hawala business with Eijaz
Pathan, who lived in Dubai and that he also had a house in
Bombay. Munna (A-24) had developed a close acquaintance with
Eijaz Pathan, who belonged to the Kareem Lala Group, and had
thus succeeded in committing the murder of Majeed in 1986, and
had thereafter, remained absconding for a long time. Subsequently,
he (A-24) had been arrested and enlarged on bail. There had been
an attempt to kill him, after he was released on bail. He (A-24) had
been introduced to Tiger Memon (AA) in 1987, while participating
in the unloading of silver at Shekhadi, Shrivardhan. His confession
has further revealed that contraband had in fact, been brought into
India by Tiger Memon. He had also been instructed by Eijaz from
Dubai, to not tell anybody about the smuggling.
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In the 3rd week of March, 1993 while he had been staying in
Marol, Noor Khan (A-50) and Mohammad Jindran had come to
meet him and had said that some packets of RDX were lying in the
godown and that the same had to be destroyed. Rashid had told
him that for removing the said packets, he had taken a sum of Rs.5
lakhs. Rashid had taken him the next day to the Ghodbunder hotel
and there he had met Noor Khan (A-50) and Mohammad Jindran,
who had already reached there. They had arranged for a dumper
from the Sarpanch of the village Anand Dighe. The material had
then been loaded therein, and had been thrown into the sea. He had
thrown about 55 packets of RDX into Nagla Bandar. Rashid had
given him a sum of Rs.10,000/-. He had subsequently reached the
Dawat hotel, to receive a sum of Rs.20,000/- from Noor Khan.
However, he had been arrested by the police here.
162. Deposition of Fazal Akbar Khan (PW-468):
He had known Rashid and Noor Khan (A-50) for the past 15
years. He had been introduced to Munna (A-24), by Rashid in the
third week of March, 1993. Noor Khan (A-50) had come to his
residence, and had asked him to take him to Rashid. They had
gone to the residence of Rashid at Dreamland Society. Noor Khan
(A-50) had told Rashid that somebody had kept some chemicals or
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something at his place in Dahisar, and that he wanted his help to
destroy the same. The witness, Rashid and Noor Khan had
travelled in the car of Noor Khan, to the said place at Dahisar.
Here, they had seen 50-60 gunny bags lying in the shed. Rashid
had opened one of the gunny bags, and had found that the same
contained a black coloured powder. They had then moved to
Ghodbunder with one such packet. After reaching there, Rashid
had examined the packet, they had collected from Dahisar.
However, Rashid had been unable to determine what it was. They
had thus returned to the place of Rashid. Then, Noor Khan had
asked Rashid to help him to dispose of the said material. Rashid
had asked Noor Khan to come to him the next day. All of them
had then left the said place. The witness was called by Rashid the
next day, to his residence at 10.30 a.m. Noor Khan had also been
present there. One other person had also been present there, who
was introduced to the witness as Mohammad Jindran. They talked
about the disposal of the said material, and subsequently left the
said place, asking Rashid to meet at Ghodbunder the next day in
the morning. Munna (A-24) was also present there. The witness
had stayed in the house of Rashid. He had gone alongwith Rashid
and Munna to Ghodbunder and had found Noor Khan (A-50) and
Mohammad Jindran there. Noor Khan (A-50) had given a packet
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containing some money to Rashid. Noor Khan (A-50) and
Mohammad Jindran had stayed in a room of the hotel, while
Rashid and Munna had left the said room.
After 10-15 days, Rashid had called the witness from
Behrin, and had said that the sacks which had been disposed of
contained RDX, and that the witness must not disclose this fact to
anybody, or else he would be killed, alongwith all his family
members. The witness had then become very scared, owing to the
threat that had given to him. The witness has also identified Noor
Khan (A-50) in court.
163. Deposition of Upendra G. Patel (PW-33):
He is a recovery witness. He has deposed that in all, a total
of three bags had been seized on 18.4.1993. Two bags had been
empty. The third bag had contained some black pieces, of which
one piece had been taken out and separately packed. At the said
time, only one piece had thus been taken out of the bag. The same
was weighed and packed in plastic wrap, after which, it was also
wrapped in a piece of paper, in the form of a paper bag. The said
paper bag had been picked up from a nearby place, under the
bridge. His (PW-33) signature had not been on the paper bag in
which the black substance had been kept. The paper bag had not
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been sealed. In court, he had been unable to say whether the paper
in which the blackish lump was wrapped, was the same paper bag
in which it had been kept, when the sample had initially drawn at
the time of seizure of the goods by the Police.
164. Deposition of Wilson John Britto (PW-274):
He has deposed that he knew Rashid because on one
occasion, he had gone to his hotel for a meal. On 23.3.1993, Rashid
asked for a room. He had spoken to the senior steward, Ajit Roop
Singh from his hotel. He had then telephoned the Juhu Office and
had talked with his boss Shri Sunil Naik. The witness had
informed Nayak over the phone that one Rashid had come to the
said hotel and that he had requested a room. After asking his boss,
he and Ajit Roop Singh had given Room No. 1-A to Rashid.
Rashid had paid Rs.300/- to the witness, as a tip.
He had not heard any conversation that had ensued between
Rashid and his companions during the period in which, they were
at the hotel. He knew the names of the three companions of the
Rashid. This witness could not identify the appellant (A-50) in
court (after a period of 5 years).
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165. Deposition of Prakash Dhanaji Khanvilkar (PW.513):
During the said interrogation of the appellant (A-50), he had
expressed his desire to make a voluntary statement. The witness
had thus secured two panch witnesses, and it was in their presence
that the appellant (A-50) had made a disclosure statement in Hindi.
The same had been recorded after drawing the memorandum
panchanama. As the appellant (A-50) had expressed his willingness
to take him to a place for recovery, the witness had also decided to
accompany the appellant (A-50) to the particular place, that he
wished to point out. Thus, he had gone alongwith the panch
witnesses, police officials and the appellant, in a police jeep.
In his cross-examination, he has made it clear that on the
said day, he had reached the detection room at 1.00 p.m. and that
the appellant (A-50) had been with him from 1.00 p.m. to 6.15 p.m.
The panch witnesses had been called at about 3.50 p.m. He has
expressed his ignorance as regards whether on the said day, some
Judge had come and conducted remand proceedings at the Mahim
Police Station between 1.00 p.m. and 3.15 p.m. His deposition has
further revealed that he had left the police station with the
appellant, and other persons at about 4.15 p.m. and had returned to
the Mahim Police Station alongwith his team, the accused and the
panch witnesses at about 7.15 p.m. The bridge on the Kaman river
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from where the recovery was made, was at a distance of about 35-
40 Kms. from the Mahim Police Station. He has denied the
suggestion that the appellant (A-50) had not in fact made any
disclosure statement when he had been taken to the bridge on the
Kaman river etc.
166. Deposition of Ajit Pratap Singh (PW.291):
He was 26 years of age and had been carrying on the
business of painting houses. At the relevant time, in the year 1993,
he had been working as a waiter in a farm house named, "Royal
Retreat" which was situated at Kaju Pada on Ghodbunder road,
district Thane. One Shri Kailash Jain, alongwith others had owned
the said farm house. Alongwith him, one Shri Wilson Britto (PW-
274) had been working there as an assistant. He had worked in the
hotel upto 1994. He had known a person by the name of Rashid,
son of Lala Seth, who had been carrying on the business of dealing
in chemicals near the said farm house. Rashid had been coming to
the said hotel alongwith his friends and family members, for meals
and also to swim. On 23.3.1993, at about 1.30 p.m. while he had
been present at the said hotel, Rashid had come there alongwith 3-4
friends in a car, and had asked the witness to open room No. 1-A
for them, and thus, he had opened the said room. Rashid had stayed
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in the said room alongwith his friends, and he had served them
lunch. While serving them, he had heard Rashid telling the others
that the goods which had been kept in the godown of the appellant
(A-50), were to be thrown at the earliest into the Nagla creek, by
taking the same in the vehicle of Anya Patil, as an investigation by
the police was in progress. Rashid had noticed the presence of the
witness, and had immediately asked him to leave the room and to
close the door. In court, the witness expressed his inability to
identify any of these friends, who had been present on that day in
the hotel, except Rashid and Munna (A-24) as the deposition had
taken place after a period of five years.
167. Deposition of Dattatray Maruti Wayal (PW.521):
He was one of the investigating officers of the case who had
taken up the investigation on 5.5.1993 of C.R. No. 14/93 in the
Kapurbawdi Police Station. He has deposed that during the
investigation, he had recorded the statement of about 35 witnesses,
including one Shri Narayan Sitaram Patil (PW-295). He had also
come to know, that the land from where the recovery had been
made, had been purchased by the appellant (A-50) in the past, and
that he had allowed the construction of a godown therein. The
appellant (A-50) had been keeping goats in the said godown, and
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for such purpose, he had kept a Gorkha watchman named Pratap
Singh to look after the said goats. The appellant would visit the
said godown.
168. Deposition of Kailas Baburao Dawkhar (PW.518):
He is a formal witness and he has recorded the statements of
Wilson John Britto (PW-274) and Ajitsingh Pratap Singh (PW-
291), who had been working as waiters in the resort where the
meeting of accused persons had taken place, in connection with
disposing of the explosive material by dumping the same into the
Nagla creek. Thus, he has proved the statement of the witnesses
that have been recorded.
169. The evidence referred to hereinabove, regarding the
ownership and possession of the godown, the dumping of the
contraband in the said godown, and the removal and final disposal
of the same by throwing it into the Nagla creek, stands fully
corroborated by the evidence of the aforesaid witnesses. The said
contraband had been destroyed in two installments; one at the
Nagla creek, and another at the bridge on the Kaman river. The
evidence of the witnesses corroborates the case of the prosecution
in entirety. Thus, the case stands proved.
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170. We do not find any force in the submissions made by Mr.
Sinha, learned counsel appearing for the appellant, to the effect that
as the recovery memo did not contain signature of the appellant,
the same cannot be relied upon, even though, to fortify such
submission, he has placed very heavy reliance upon the judgment
of this Court in Jackaran Singh v. State of Punjab, AIR 1995 SC
2345, wherein it has been held that the absence of signatures or
thumb impressions of the accused upon their disclosure statements,
may render the said statements unreliable, particularly, in a case
where the panch witness has not been examined at a trial, to testify
the authenticity of the same. The judgment relied upon by Shri
Sinha is easily distinguishable, as in the said case none of the
panch witnesses had been examined, while in the instant case, the
panch witness has been examined.
171. In State of Rajasthan v. Teja Ram & Ors. , AIR 1999 SC
1776, this Court while dealing with the issue held:
"The resultant position is that the
Investigating Officer is not obliged to obtain
the signature of an accused in any statement
attributed to him while preparing seizure
memo for the recovery of any article covered
by Section 27 of the Evidence Act. But, if any
signature has been obtained by an
investigating officer, there is nothing wrong
or illegal about it. Hence, we cannot find any
force in the contention of the learned counsel
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for the accused that the signatures of the
accused in Exs. P-3 and P-4 seizure memo
would vitiate the evidence regarding recovery
of the axes.
172. After appreciating the evidence on record, the learned
Designated Court came to the conclusion that the appellant had
been in the unauthorised possession of 58 bags of RDX material
within the notified area, and that he had indulged, alongwith the
other co-accused conspirators, in the disposal of the said RDX
material by dumping the same into the Nagla creek and the Kaman
river. However, the Designated Court has further held, that no
nexus could be established between the appellant (A-50) and Tiger
Memon (AA). Additionally, the Designated Court has stated that
there was also no nexus found between the offences committed in
pursuance of the conspiracy as was hatched by Tiger Memon (AA),
and the acts of the appellant (A-50).
173. This conclusion stands fortified from the confessional
statement of the appellant, as well as from the statements of the
other witnesses. The appellant was most certainly had close
association with Mohammad Jindran (AA), Rashid and with a few
other accused persons. The appellant had spent about Rs.5 lakhs
for the disposal of the said material. Rashid, a very close associate
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of Tiger Memon (AA) had also been involved in the process of
such disposal. The remnants of the RDX were taken from his
godown, and thrown into the Kaman river. Being in possession of
the said material for a limited time period, renders him guilty for
commission of the offence under Section 5 TADA. He is also
guilty under Section 201 IPC, as even though he may not have
been directly involved in the disposal of the contraband, the same
was disposed of upon his instructions, and for this, he had paid a
huge amount. The said material had been brought into India at the
Shekhadi landing by Tiger Memon (AA), and had been stored in
his godown at Kashimira. Therefore, we see no reason to interfere
with the order passed by the learned Special judge, and the appeal
is accordingly, dismissed.
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CRIMINAL APPEAL NO. 919 OF 2008
Mulchand Sampatraj Shah ...Appellant
Versus
The State of Maharashtra ... Respondent
174. This appeal has been preferred against the judgment and
order of conviction and sentence dated 6.6.2007 passed by a
Special Judge of the Designated Court under the TADA in Bombay
Blast Case No. 1 of 1993, by which the appellant had been
convicted under Section 3(3) of Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as `TADA') and
awarded sentence of 5 years R.I. and fine of Rs.5 lakhs with
suitable additional sentence of rigorous imprisonment in default of
payment of fine.
175. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant
was charged under Section 3(3) TADA for facilitating and
mobilising funds for the absconded accused Mushaq @ Ibrahim @
Tiger Memon Abdul Razak Memon (AA) and his associates by
allowing him to operate his hawala account in the code name
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HATHI, and rendering financial assistance to him and his
associates which greatly facilitated funding of their various
operations in the commission of various acts i.e. serial bomb blasts.
B. After conclusion of the trial, the learned Designated Court
convicted the appellant as referred to herein above.
Hence, this appeal.
176. Shri Mukul Rohatgi, Learned Senior Counsel appearing for
the appellant, has submitted that the appellant stood convicted
under Section 3(3) TADA for facilitation by providing financial
assistance to the co-accused Tiger Memon (AA) in various
activities. There is no evidence on record that the appellant had any
knowledge that Tiger Memon had been indulging in terrorist
activities. The Bombay blast took place on 12.3.1993 and a case
under TADA had been registered against Tiger Memon and others
only after the said incident. The appellant never came to know, nor
had any material been placed before the Special Court in the instant
case to show that Tiger Memon or any other co-accused in this
case indulged in terrorist activities. Even in case the illegal banking
business and dealing with money of smugglers and other type of
criminals is admitted, the question does arise as to whether in such
a fact-situation, the appellant could have been charged/convicted
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under Section 3(3) TADA. There is nothing in the confessional
statement of the appellant that he had any knowledge that Tiger
Memon indulged in any terrorist activity. It is evident from the
record that the appellant was involved in acts subsequent to the
date of commission of the blasts i.e. 12.3.93.
177. Shri Mukul Gupta, learned senior counsel arguing for the
CBI has vehemently opposed the appeal and has submitted that the
appellant (A-97) had been rendering financial assistance to Tiger
Memon (AA), who was the kingpin of the entire episode which
lead to not only the death of numerous innocent people, but also
caused the destruction of moveable and immoveable property. The
evidence on record makes it abundantly clear that the appellant (A-
97) had been handling the financial accounts of Tiger Memon
(AA). This amounts to financial assistance as per Section 3(3)
TADA. Therefore, he abetted the terrorist activities undertaken by
Tiger Memon (AA). Thus, the appeal deserves to be rejected.
178. We have considered rival submissions made by the learned
counsel for the parties and perused the records.
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179. Evidence against the appellant:
(a) Confessional statement of the appellant Mulchand Sampatraj
Shah @ Chokshi (A-97)
(b) Confessional statement of Raju Laxmichand Jain @Raju
Kodi (A-26)
(c) Confessional statement of Abdul Gani Ismail Turk (A-11)
(d) Confessional statement of Mohmed Rafiq Mianwala @
Rafiq Madi (A-46)
(e) Confessional statement of Asgar Yusuf Mukadam (A-10)
180. Confession of the appellant Mulchand Sampatraj Shah
@ Chokshi (A-97):
From the confessional statement it has been revealed that
the appellant was doing the business of bank draft discounting in
the name and style of `Chokshi' wherein the appellant used to take
amount from the public, and to return the same in instalments. At
the time of returning the money he used to deduct the commission
and, thus, he had been doing illegal banking business. He came in
contact with Raju Laxmichand Jain @ Raju Kodi (A-26), who had
the business in the market. The appellant also became acquainted
with Mohammed Dossa and Tiger Memon (AA). He started the
business of money taking and giving with both of them. He had
some dispute in money transaction with them because of which he
was beaten by them and the matter was settled after paying a sum
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of Rs.5 lakhs to them. The appellant was arrested in 1989 for
violating the provisions of Foreign Exchange and Regulation Act,
1973 (hereinafter referred to as `FERA'). His house was also
raided by the Customs Department in 1989, and since they found
some illegal accounts, he was also arrested. The appellant was
again arrested in 1991 by the Central Bureau of Investigation
(hereinafter referred to as `CBI') in connection with the hawala
business with one Mr. Shambu Dayal who was doing hawala
business between Bombay and Delhi, and he had furnished some
information about the appellant to the department. He was arrested
and remained in jail for 7 months. Subsequently, he was enlarged
on bail.
In the month of September, 1992 Tiger Memon (AA) told
him on telephone that he was sending a huge amount of money
through one Farid and the appellant would accept it and hand it
over to Keshav Dalpat on getting the receipt. He received a sum of
Rs.25 lakhs and the said amount was paid by the appellant to
Keshav Dalpat. The said Keshav Dalpat was brought by Raju
Kodi (A-26). After 10 days, Tiger Memon deposited a sum of
Rs.21 lakhs with the appellant, which was to be given to Namji
Dhagwan. In the last week of October 1992, Tiger Memon opened
an account with the appellant in the name of HATHI. Raju Kodi
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(A-26) had deposited amounts varying from Rs. 5 lakhs to Rs. 1.89
Crores in the said account in November-December of 1992.
Immediately, after recording the confessional statement of the
appellant, his office was searched and various documents were
seized dealing with the HATHI account. Various transactions were
recorded totaling almost Rs. 1.9 Crores.
181. Confessional statement of Raju Kodi (A-26):
Raju Kodi (A-26) in his confessional statement admitted to
his acquaintance with Mushtaq Abdul Razak Memon @ Tiger
Memon (AA). In November 1992, as per the instructions of Tiger,
A-26 deposited the various amounts in the HATHI account of
Tiger maintained by the appellant (A-97) as Hawala transactions.
The amounts varied from Rs. 16 Lakhs to Rs. 50 Lakhs in the
month of November, 1992 and thus, the total amounted to
Rs.181.48 lakh, in the HATHI account of Tiger.
182. Confessional statement of Abdul Gani Ismail Turk(A-11):
Abdul Gani Ismail Turk (A-11) in his confessional statement
stated that he used to bring and deliver Hawala money, for which
he was paid Rs. 5,000. So, he corroborated the prosecution case
only to the extent that Tiger Memon (AA) had indulged in Hawala
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transactions. A-11 knew the persons, namely, Asgar, Imtiyaz,
Rafiq Madi, Salim, Mustaq, Hanif etc.
183. Confessional statement of Mohmed Rafiq Musa
Mianwala @ Rafiq Madi (A-46):
In his confessional statement A-46 has stated that A-97 had
been a very close associate of Tiger Memon (AA) and in the month
of February 1993, he went to Chokshi (A-19) at Javeri Bazar, and
brought Rs. 4 lakhs from the appellant and gave this sum to Yakub
at his office.
184. Confessional statement of Asgar Yusuf Mukadam (A-10):
In his confessional statement he has stated that Tiger used to
deposit hawala money in the HATHI account with Chokshi (A-97)
and he would withdraw some amount of money as and when
required. Tiger had further told him at the time of his departure
that if Yakub required money, it was to be given from the same
account. On 9.2.1993, Yakub asked him to transfer Rs. 25 Lakhs to
Irani's account, and Rs. 10 Lakhs to Ohalia's account which was
accordingly done by the accused (A-10).
185. The confession made by the appellant (A-97) stood
corroborated by the confessional statements of accused Asgar
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Page 140
Yusuf Mukadam (A-10), Raju Laxmichand Jain @ Raju Kodi (A-
26) and Mohmad Rafiq Miyariwala (A-46) to the extent that the
appellant was doing the hawala business, and had been receiving
the money of various persons including Tiger Memon (AA).
186. Legal provisions involved in the case are :
I. Section 3(3) TADA reads as under:
"(3) Whoever conspires or attempts to commit, or
advocates, abets, advises or incites or knowingly
facilitates the commission of, a terrorist act or
any act preparatory to a terrorist act, shall be
punishable with imprisonment for a term which
shall not be less than five years but which may
extend to imprisonment for life and shall also be
liable to fine." (Emphasis added)
II. Section 2(1)(a)(iii) TADA defines the abetment which
involved:
"(iii) the rendering of any assistance, whether
financial or otherwise, to terrorists or
disruptionists."
III. Section 21(2) TADA provides for a presumption which
reads as under:
" (2) In a prosecution for an offence under sub-
section (3) of Section 3, if it is proved that the
accused rendered any financial assistance to a
person accused of, or reasonably suspected of,
an offence under that section, the Designated Court
shall presume, unless the contrary is proved, that
such person has committed the offence under that
sub-section." (Emphasis added)
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Page 141
IV. Abetment and harbouring of offenders is also an offence
under TADA and various other statutes like NDPS Act, 1985,
POTA, 2002 and MCOCA, 1999.
187. All these statutes also provide that raising funds for terrorist
organisations is illegal and such activities are punishable.
However, the general principle is that a person so involved must be
found rendering financial assistance to the accused of
terrorist/disruptive activities, or could be reasonably suspected in
indulging in such activities. Hawala business is done only on the
basis of commission by exchanging money among persons and
receiving commission. The appellant (A-97) had been working as
a carrier or agent, between the persons indulging in money
transactions in India or abroad, without having any knowledge
whatsoever, that Tiger Memon or his associates or any other co-
accused were indulging in terrorist activities. In the instant case,
there is nothing on record to show that the appellant (A
-97) indulged in such activities though he might be involved in
other illegal activities.
188. The learned Designated Court recorded the finding as under:
"Thus considering the nature of gravity of
act committed by A-97 it will be difficult to accept
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Page 142
the submission that the highest punishment as
prescribed for the offence should be awarded to
him........ It can be further added that no evidence
has surfaced denoting A-97 having assisted,
abetted in any manner any other act or offences
committed by Tiger Memon."
189. In Kalpnath Rai v. State (supra), this Court held:
"If Section 3(4) is understood as imposing harsh
punishment on a person who gives shelter to a
terrorist without knowing that he was a terrorist,
such an understanding would lead to calamitous
consequences. Many an innocent person,
habituated to offer hospitality to friends and
relatives or disposed to zeal of charity, giving
accommodation and shelter to others without
knowing that their guests were involved in
terrorist acts, would then be exposed to
incarceration for a long period."
190. Similarly in Kartar Singh v. State of Punjab, (1994) 3
SCC 569, this Court held:
"133. Therefore, in order to remove the anomaly
in the vague and imprecise definition of the word,
`abet', we for the above mentioned reasons, are of
the view that the person who is indicted of
communicating or associating with any person or
class of persons who is engaged in assisting in any
manner terrorists or disruptionists should be
shown to have actual knowledge or to have reason
to believe that the person or class of persons with
whom he is charged to have communicated or
associated is engaged in assisting in any manner
the terrorists and disruptionists.
134. To encapsulate, for the discussion above, the
expressions `communication' and `association'
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Page 143
deployed in the definition should be qualified so as
to save the definition, in the sense that "actual
knowledge or reason to believe" on the part of a
person to be roped in with the aid of that definition
should be read into it instead of reading it down
and clause (i) of the definition 2(1)(a) should be
read as meaning "the communication or
association with any person or class of persons
with the actual knowledge or having reason to
believe that such person or class of persons is
engaged in assisting in any manner terrorists or
disruptionists" so that the object and purpose of
that clause may not otherwise be defeated and
frustrated.
Section 3 of Special Courts Act, 1984
135. Challenging the validity of Section 3 of Act of
1984, it has been contended that the power vested
under Section 3(1) on the Central Government to
declare by notification any area as "terrorist
affected area", and constitute such area into a
single judicial zone or into as many judicial zones
as it may deem fit, is not only vague but also
without any guidance.
136. The prerequisite conditions which are sine
qua non for declaring any area as "terrorists
affected area" by the Central Government by
virtue of the authority conferred on it under
Section 3(1) of the Act of 1984 are:
(1) The offences of the nature committed in any
area to be declared as "terrorists affected area"
should be one or more specified in the Schedule;
(2) The offences being committed by terrorists
should satisfy the definition of the nature of the
offence mentioned in Section 2(1)(h), namely,
indulging in wanton killing of persons or in
violence or in the disruption of services or means
of communications essential to the community or
in damaging property with a view to commit any of
the offences enumerated under any of the clauses
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Page 144
(i) to (iv) indicated under the definition of the
word `terrorist';
(3) The scheduled offences committed by terrorists
should be on such a scale and in such a manner
that it is expedient for the purpose of coping with
the activities of such terrorists to have recourse to
the provisions of this Act."
137. Unless all the above three conditions are fully
satisfied, the Central Government cannot invoke
the power under Section 3(1) to declare any area
as "terrorist affected area". In other words, in the
absence of any of the conditions, Section 3(1)
cannot be invoked. Therefore, the contention that
Section 3(1) suffers from vagueness and lacks
guidance is unmerited."
191. In view of the above, the law requires that an accused under
TADA must abate knowingly the commission of terrorist act
and/or he must be rendering financial assistance to such an
accused, or could be reasonably suspected of being such accused.
Therefore, the question does arise as to whether the appellant had
any reason to believe that Tiger Memon and his associates were
accused of any terrorist act, or could be reasonably suspected to be
such accused.
192 Immediately after the arrest of appellant (A-97), he
apprehended that he would be forced to make a confession.
Therefore, a large number of letters had been sent to Mr. V.B.
Lokhande, DCP, which he had received prior to recording of the
confessional statement. This is evident from the letter dated
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Page 145
16.5.1993 written by the counsel of the appellant requesting V.B.
Lokhande not to record his confessional statement because the
appellant did not want to make any such statement.
193. In the cross-examination of Shri V.B. Lokhande, DCP (PW-
183) admitted that he had received letters and telegraphs
particularly in reply to question nos. 123, 124. Further, while
replying to question no. 125 he stated that he had not made any
attempt to ask the appellant before recording his confessional
statement whether he (A-97) wanted to make a confessional
statement.
194. It is further submitted that confessional statement had been
obtained by coercion i.e. beating the appellant. There is ample
evidence on record that he had a large number of injuries upon his
body at the relevant time. He made a complaint in writing to the
court, and the court issued certain directions for his treatment and
asked for the report. The confessional statement was recorded on
18.5.1993. He was produced for the first time before the court on
25.5.1993 when the complaint was lodged, and the injury report
was given. The report gave the details of various injuries on his
buttocks, wrist and lower leg.
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Page 146
195. In this respect, the court passed certain orders which read as
under:
"25.5.1993 :
...Accused Mulchand Shah is not produced before
this court till 4 p.m. as the CMC on duty has
referred the accused Mulchand Shah to senior
doctor for second opinion.....
26.5.1993:
.....Accused Mulchand Shah produced before the
court, the police is seeking further custody of the
accused for the purpose of investigation. The
accused has produced before the court on
25.5.1993 and he made a grievance that he was
assaulted while in police custody. The accused was
sent for medical report from G.T. Hospital does
support his allegations.
......Further police custody of the accused would
have definitely help the investigating agency but,
the investigation agency having assaulted to third
degree method, it will not be safe to remand the
accused to their custody instead the investigating
agency can interrogate the accused in jail..
....The accused is remanded to judicial custody till
22.6.1993."
196. In this respect, a large number of documents had been
placed on record to show that complete information regarding the
torture had been placed before the court by the counsel. From the
relevant part of the letter dated 20.5.1993 written by Shri Pervez
M. Rustomkhan, Advocate, to Mr. Pharande, Inspector of Police
(Worli), Crawford Market, Bombay, it is clear that not only had the
appellant been beaten but his family members had also been beaten
and harassed. Even his brother Ramesh Kumar, a handicapped
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Page 147
man, had not been spared. These incidents took place on
12.4.1993, 14.4.1993, 15.4.1993, 16.4.1993, 17.4.1993, 21.4.1993,
22.4.1993, 5.5.1993 and 8.5.1993. It was also mentioned in that
letter that the appellant had falsely been implicated in the case and
had been tortured and forced to sign some writings under duress
and pressure from the police authorities which may be used against
him.
197. In Sahib Singh v. State of Haryana, (1997) 7 SCC 231,
this Court held that `Confession' means:
"39. The Evidence Act contains a separate part
dealing with "Admission". This part comprises
Sections 17 to 31. "Confession" which is known as
a species of "Admission" is to be found contained
in Sections 24 to 30.
41. In view of these decisions, it is now certain
that a "confession" must either be an express
acknowledgement of guilt of the offence charged,
certain and complete in itself, or it must admit
substantially all the facts which constitute the
offence.
42. Section 24 provides, though in the negative
form, that "confession" can be treated as relevant
against the person making the confession unless it
appears to the court that it is rendered irrelevant
on account of any of the factors, namely, threat,
inducements, promises etc. mentioned therein.
Whether the "confession" attracts the frown of
Section 24 has to be considered from the point of
view of the confessing accused as to how the
inducement, threat or promise from a person in
authority would operate in his mind. (See: Satbir
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Page 148
Singh v. State of Punjab, (1977) 2 SCC 302.) The
"confession" has to be affirmatively proved to be
free and voluntary. (See: Hem Raj Devilal v. State
of Ajmer, (1977) 2 SCC 263) Before a conviction
can be based on "confession", it has to be shown
that it was truthful.
46. The Act, like the Evidence Act, does not define
"confession" and, therefore, the principles
enunciated by this Court with regard to the
meaning of "confession" under the Evidence Act
shall also apply to a "confession" made under this
Act. Under this Act also, "confession" has either
to be an express acknowledgement of guilt of the
offence charged or it must admit substantially all
the facts which constitute the offence. Conviction
on "confession" is based on the maxim "habemus
optimum testem, confitentem reum" which means
that confession of an accused is the best evidence
against him. The rationale behind this rule is that
an ordinary, normal and sane person would not
make a statement which would incriminate him
unless urged by the promptings of truth and
conscience.
52. The confessional statement does not admit
even substantially the basic facts of the
prosecution story, inasmuch as in the confessional
statement, no role is assigned to the appellant
while in the prosecution story an active role has
been assigned to him by showing that he too was
armed with a gun and had gone to the spot and
participated in the commission of the crime by
firing his gun specially at the injured witness. The
confessional statement is not truthful and is part of
the hallucination with which the prosecution and
its witnesses were suffering. It is accordingly
discarded and cannot be acted upon."
198. The only question is, whether the provisions of Section
21(2) provides that in a prosecution for an offence under sub-
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Page 149
section (3) of Section 3, if it is proved that the accused rendered
any financial assistance to a person accused of, or reasonably
suspected of, an offence under that section, the Designated Court
shall presume unless the contrary is proved, that such person has
committed the offence under that sub-section. Thus, the provision
of Section 21(2) can be resorted to, only in case it is proved by the
prosecution that the accused rendered any financial assistance to a
person who has already been facing the charge of terrorist or
disruptive activities or he had reasons to suspect that the person to
whom financial help has been rendered was indulging in such
activities. Thus, there is a burden on the prosecution first to prove
the aforesaid condition. In case, it is successfully proved that the
person who render financial assistance to a person accused of
terrorist/disruptive activities or suspect to be indulging in such
activities, only then the presumption can be drawn.
In such a situation, it is not possible for us to accept the
submission of Mr. Mukul Gupta, learned senior counsel appearing
for the respondent, that even if a person has rendered financial
assistance prior to or during a part proceeding, to the parties
indulged in such activities, the provision of Section 21(2) would be
attracted. On a literal interpretation of the provision such a
construction is not permissible. There is nothing on record to show
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Page 150
that during the time the appellant facilitated the financial
transaction of Tiger Memon in the fake account named `HATHI'
and that he had reason to suspect that Tiger Memon or his
associates were indulging in disruptive activities, or had been
accused in such activities. The appellant may be guilty of running
and indulging in fraudulent banking activities, or may be violating
of provisions of other statutes but cannot be held guilty of the
offences under Section 3(3) TADA.
199. In the instant case, there is nothing on record to show that
any person could imagine what Tiger Memon (AA) was planning.
In fact it was only after 12.3.1993, the date of Bombay blast, that
the provisions of TADA could be attracted as far as Tiger Memon
(AA) is concerned. Thus, he (A-97) cannot be held to be guilty
under the said provisions. There is nothing on record on the basis
of which an inference can be drawn, that the appellant (A-97)
could reasonably suspect indulgence of Tiger Memon (AA) in
terrorist or disruptive activities.
200. Section 2(1)(a)(iii) TADA provides that abet, with its
variations and cognate expressions, includes rendering of any
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Page 151
assistance whether financial of otherwise, to terrorists or
disruptionists.
201. The learned Designated Court after appreciating all the
evidence on record came to the conclusion that the phrase
`financial assistance' should not be given a restricted meaning, to
include only assistance given by the concerned accused from his
own money. The learned court went on to state that even allowing
a terrorist to circulate his money should come within the ambit of
that phrase, through an illegal account as maintained for Tiger
Memon (AA) by Sampatraj (A-97).
202. In the case at hand, as it cannot be held even by stretch of
imagination that Tiger Memon (AA) and his associates had been
accused of such activities prior to 12.3.1993, or could reasonably
be suspected of being indulged in such activities, the provisions of
TADA are not attracted so far as the appellant is concerned.
Therefore, we cannot agree with the order passed by the learned
Designated Court so far as the appellant (A-97) is concerned. The
appeal is therefore, allowed. The conviction and sentence awarded
by the Designated Court are set aside. The appellant is on bail. His
bail bonds stand discharged.
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Page 152
CRIMINAL APPEAL NO. 1393 OF 2007
Ehsan Mohammad Tufel Qureshi ...Appellant
Versus
State of Maharashtra ... Respondent
203. This appeal has been preferred against the impugned
judgment and order dated 29.5.2007, passed by a Special Judge of
the Designated Court under the TADA for Bombay Blasts, Greater
Bombay, in the Bombay Blast Case No. 1/1993. The appellant has
been charged under various heads, including for the general charge
of conspiracy. The appellant has been convicted under Section 5
TADA, and has been awarded a sentence of 5 years rigorous
imprisonment alongwith a fine of Rs.25,000/-, and in default of
payment of fine, to suffer further R.I. for six months, and also
under Sections 3 and 7 r/w Section 25(1-A)(1-B)(a) of the Arms
Act. However, no separate sentence has been awarded separately
for this offence.
204 Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant
(A-122) was charged as he had agreed to keep in his possession,
one Mauser pistol and 16 live cartridges that had been given to him
by Firoz @ Akram Amani Malik (A-39), and also that there had
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Page 153
been certain other acts that were committed by him in pursuance of
the general charge of conspiracy.
B. After conclusion of the trial, the learned Special Judge
convicted the appellant and sentenced him as referred to
hereinabove.
Hence, this appeal.
205. Shri Mushtaq Ahmad, learned counsel appearing for the
appellant has submitted that the appellant had been dragged in trial
only being relative of Fazal, though he was not involved in the
offence. The arms and ammunition alleged to have been recovered
from his possession might have been that of Fazal sister's husband.
He was sold the weapons by Firoz @ Akram Amani Malik (A-39),
and he was not aware of the fact that it was one of arms which had
been smuggled into the country to commit terrorist acts. Thus, the
appeal deserves to be allowed.
206. Per contra, Shri Mukul Gupta, learned senior counsel
appearing for the State has submitted that he was found in
conscious possession of the arms and ammunition in the notified
area and therefore, the learned Designated Court has rightly
convicted the appellant under the provisions of TADA. The appeal
lacks merit and is liable to be dismissed.
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Page 154
207. We have considered the rival submissions made by the
learned counsel for the parties and perused the records.
208. Evidence against the appellant (A-122):
(a) Confessional statement of Firoz @ Akram Amani Malik (A-
39)
(b) Deposition of Rohitkumar Ramsaran Chourisa (PW-39)
(c) Deposition of Prakash Dhanaji Khanvilkar (PW-513)
(d) Deposition of Vishnu Ravalu Shinde (PW-615)
209. Confessional Statement of Firoz @ Akram Amani Malik (A-39) :
His confessional statement was recorded on 23.4.1993,
wherein he has revealed his participation in the conspiracy, and his
inclusion thereof, in the Bombay blast. He has further stated that
Zakir had given him 4 handgrenades, one pistol and 16 cartridges.
He had kept the said weapons with his brother-in-law (sister's
husband), Fazal. He had taken back the pistol from Fazal on
29.3.1993, and had thereafter, sold the same to Ehsan (A-122) for
Rs. 15,000/-, but Ehsan had given him only Rs.5,000/-. Ehsan had
also been given the cartridges and had been showed how to use
them. After the arrest of the appellant, he had been interrogated on
5.4.1993, and it was in the course of this, that he had expressed his
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Page 155
willingness to make a disclosure statement. Therefore, two panch
witnesses had been called, and in their presence, he had made his
disclosure statement, wherein he has stated that he had given the
appellant (A-122), one pistol and 16 cartridges. The said
panchnama was duly signed by the investigating officer, the
panchas and the accused (A-39) himself.
210. Deposition of Rohitkumar Ramsaran Chourisa (PW-39):
The panch witness has deposed that he had been running a
pan shop that was situated by the side of the Irani Restaurant which
was located within the Cadell Court building, situated on Cadell
Road, Mahim. One police constable had approached him and had
asked him to accompany him to the Mahim Police Station, as he
had been called by the station incharge. The constable had stated
that he could not disclose the reason/purpose for which he had been
called there, and had only told him that the Inspector would
explain the same to him. His friend Ramesh Govalkar had also
accompanied him. They had then gone to the Mahim Police
Station with the constable. They had been taken to the Detection
Room, and upon reaching the same, he had found therein, 7/8
police constables, alongwith one other person who was sitting on a
chair. Two persons had also been standing by his side in civilian
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Page 156
clothes. He had been introduced by the police constable to the
inspector i.e. to P.I. Hadap and A.P.I. Khanvilkar. The police
officers had informed him that the person who was sitting on the
chair, was an accused in the Bombay blast case, and that therefore,
he (PW-39) may act as a panch witness. He had immediately
agreed to the same. He had then been told, that the accused had
wanted to make a disclosure statement, and therefore, he must pay
close attention to it. The person sitting there had then stated that he
was Ehsan Mohmed Tufel Mohmed (A-122). He had further said
that one pistol and some cartridges had been kept by him and his
associate Salim Shaikh, at a particular place. If the officers would
come with him, he would also show them where such material had
been kept. A memorandum panchnama to this effect had been
prepared and explained to the witness in Hindi and Marathi, and
then signed. This witness has also identified the panchnama that
had been prepared at the police station on 5.4.1993 (Exhibit 119).
He has further deposed that the appellant (A-122), the police
officials and the panch witnesses had gone together from Fort Road
to Mahim Junction and then to Mahim Causeway, Bandra
Reclamation. The appellant (A-122) had stopped at the corner, and
had told them that they had to go down to the Creek. The appellant
(A-122) had then gone down to the Creek with the police
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Page 157
constables escorting him, as well as the panch witnesses. The same
was a dirty place filled with water. The appellant (A-122) had then
put his hand in the water, and in one attempt had taken out the
plastic bag. Upon opening the bag, the same was found to contain
one pistol and eight cartridges. The eight cartridges were separate
from the pistol. P.I. Hadap had picked up the pistol, and taken out
its magazine. The magazine had also contained eight cartridges.
Thus, in all there were sixteen cartridges. The pistol was black in
colour, and its name had been rubbed off. On the cartridges, the
digits, "11/83" were inscribed. He has further deposed that A.P.I.
Khanvilkar had placed the contraband in a plastic bag, and upon
this requisite signatures had been duly taken. When the sealed
packet was opened, it was found to contain a 7.62 mm pistol with
magazine. It also contained sixteen intact 7.62 bottle necked pistol
cartridges, having head stamp markings of, "11/83". The witness
has identified the pistol as being the same one, that had been
recovered from his person, through a seizure panchnama, as also
the cartridges and his signature appearing on their labels.
The witness has been cross-examined. A large number of
suggestions have been made, and certain contradictions have also
been pointed out. However, he has explained everything, and has
revealed that he had been able to identify the pistol (Article 48)
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Page 158
because the same was black in colour, and on the body of the said
pistol, at the front, only metal had been visible.
211. Deposition of Prakash Dhanaji Khanvilkar, Police
Inspector, (PW-513):
He has deposed that on 5.4.1993, he alongwith other officers
had interrogated the appellant (A-122) at the Mahim Police Station.
He had been arrested earlier on the same day in L.A.C. No. 389/93.
During his interrogation, the appellant (A-122) had expressed his
desire to make a confessional statement. Thus, he had secured two
panch witnesses and in their presence, the appellant's (A-122)
statement had been recorded in Hindi, and for this purpose, a
memorandum panchnama had also been drawn up. He has
identified the signatures that had been put on the panchnama by the
panchas, and by himself. The appellant (A-122) had also taken
them to Mahim Creek to get the recovery effected, and after
reaching the Creek, he had gone 3 to 4 feet away from the shore,
into the creek water. He had then taken out one plastic bag from
the creek water, and had handed over the same to this witness. He
had opened the said bag, and found that it contained one foreign
made pistol loaded with magazine, containing eight 9 mm rounds
in it. The said bag had also contained eight 9 mm loose rounds. He
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Page 159
had taken charge of the said articles. All sixteen loose rounds had
the digits "11/83" marked on the base of the cap of the said bullets.
The said pistol and magazines had then been packed into a white
plastic bag, wrapped with brown paper, and tied with a white string
and sealed. A label duly signed by the panch witnesses and the
witness had also been affixed to the package. Hence, he has
corroborated the deposition of Rohitkumar Ramsaran Chourisa
(PW-39).
212. Deposition of Vishnu Ravalu Shinde (PW-615):
He has proved the forwarding letter dated 6.5.1993, by
which the material so collected had been sent for F.S.L. The other
witnesses have also proved the receipt of the said material for
F.S.L., and its report has revealed that the pistol had been in
working condition, and that all the 16 cartridges were live.
213. In view of the above, it is evident that a pistol had been sold
by Firoz (A-39) to the appellant (A-122), and that it had been the
accused (A-39), who had taught the appellant how to use the
cartridges. It is also evident that the recovery had been effected
from Mahim Creek, on the basis of the disclosure statement made
by the appellant, as has been deposed by the panch witness (PW-
39).
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Page 160
214. The learned Designated Court, after appreciation of the
evidence, has held that though the appellant had been in possession
of arms and ammunition in an unauthorized manner, the same
does not in any way, show the complicity of the accused in the
conspiracy relating to the blast of 12.3.1993.
215. We find no cogent reason to interfere with the findings of
the learned Designated Court. The appeal lacks merit and is
accordingly, dismissed.
216. Before parting with the case, we will clarify that if the
accused-appellant(s) whose appeals have been dismissed and are
on bail, their bail bonds stand cancelled and they are directed to
surrender within four weeks from today, failing which the learned
Designated Court, TADA shall take them into custody and send
them to jail to serve out the remaining part of their sentences.
...............................J.
(P. SATHASIVAM)
.................................J.
New Delhi, (Dr. B.S.
CHAUHAN)
March 21, 2013
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Page 161
Annexure `A'
S. Criminal Accused Name and Sentence by Award by
No. Appeal Number Designated Supreme
Court Court
1. 555 of 2012 Ibrahim Musa Chauhan 8 years RI Dismissed
@ Baba Chauhan(A-41) with fine of
Rs. 1 lakh; 10
years RI with
fine of
Rs.50,000/-;1
0 years RI
with fine of
Rs.1 lakh; 4
years RI with
fine of
Rs.25,000/-;
and one year
RI with fine
of Rs.2,000/-
2. 1129-1130 of Altaf Ali Sayed ((A-67) 10 years RI Dismissed
2007 with fine of
Rs.50,000/-;
and 10 years
with fine of
Rs.2 lakhs
3. 402 of 2008 Mohammed Sayeed 6 years RI Dismissed
Mohammed Isaaq(A-95) with fine of
Rs.15,000/-
4. 617-618 of Ayub Ibrahim 5 years RI Dismissed
2008 Qureshi(A-123) with fine of
Rs.12,500/-;
and 5 years
RI with fine
of
Rs.12,500/-
5. 1631 of 2007 Mohd. Yunus Gulam 6 years RI Dismissed
Rasool Botomiya(A-47) with fine of
Rs.25,000/-;
and 6 years
RI with fine
of
Rs.25,000/-
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Page 162
6. 1419 of 2007 Mohamed Dawood 6 years RI Dismissed
Mohamed Yusuf Khan with fine of
(A-91) Rs.25,000/-;
and 6 years
RI with fine
of
Rs.25,000/-
7. 1226 of 2007 Ramesh Dattatray Mali 6 years RI Dismissed
(A-101) with fine of
Rs.25,000/-
8. 1422 of 2007 Shaikh Asif Yusuf 5 years RI Dismissed
(A-107) with fine of
Rs.25,000/-;
8 years RI
with fine of
Rs.50,000/-;
and 8 years
RI with fine
of
Rs.50,000/-
9. 1180 of 2007 Mubina @ Baya Moosa 5 years RI Allowed
Bhiwandiwala (A-96) with fine of Conviction
Rs.25,000/- and
sentence
awarded by
the
Designated
Court are
set aside.
10. 1225 of 2007 Noor Mohammed Haji 5 years RI Dismissed
Mohammed Khan with fine of
(A-50) Rs. 1 lakh;
and 5 years
RI with fine
of
Rs.50,000/-
11. 919 of 2008 Mulchand Sampatraj 5 years RI Allowed
Shah (A-97) with fine of Conviction
Rs.5 lakhs and
sentence
163
Page 163
awarded by
the
Designated
Court are
set aside.
12. 1393 of 2007 Ehsan Mohammad Tufel 5 years RI Dismissed
Qureshi(A-122) with fine of
Rs.25,000/-
All these appeals filed by the accused have been dismissed
except Criminal Appeal Nos. 1180 of 2007 (Mubina @ Baby
Moosa Bhiwandiwala (A-96) and Criminal Appeal No. 919 of
2008 (Mulchand Sampatraj Shah (A-97). The appeals filed by A-
96 and A-97 are allowed. Their conviction and sentence awarded
by the Designated Court are set aside and their bail bonds stand
discharged.
164
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165
Page 165
166
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