Latest Expert Exchange Queries
sitemapHome | Registration | Job Portal for CA's | Expert Exchange | Currency Converter | Post Matrimonial Ads | Post Property Ads
 
 
News shortcuts: From the Courts | News Headlines | VAT (Value Added Tax) | Service Tax | Sales Tax | Placements & Empanelment | Various Acts & Rules | Latest Circulars | New Forms | Forex | Auditing | Direct Tax | Customs and Excise | ICAI | Corporate Law | Markets | Students | General | Indirect Tax | Mergers and Acquisitions | Continuing Prof. Edu. | Budget Extravaganza | Transfer Pricing
 
 
 
 
Popular Search: due date for vat payment :: ARTICLES ON INPUT TAX CREDIT IN VAT :: VAT Audit :: ACCOUNTING STANDARD :: TAX RATES - GOODS TAXABLE @ 4% :: list of goods taxed at 4% :: articles on VAT and GST in India :: empanelment :: cpt :: Central Excise rule to resale the machines to a new company :: TDS :: ICAI offer Get Windows 7,Office 2010 in Rs.799 Taxes :: ACCOUNTING STANDARDS :: form 3cd :: VAT RATES
 
 
From the Courts »
  Vatsala Shenoy vs. JCIT (Supreme Court)
  Vatsala Shenoy vs. JCIT (Supreme Court)
 M.K.Overseas Pvt. Ltd. Vs. Pr.Commissioner Of Income Tax-06
 Arshia Ahmed Qureshi Vs. Pr. Commissioner Of Income Tax-21
 CHAUDHARY SKIN TRADING COMPANY Vs. PR. COMMISSIONER OF INCOME TAX-21
  Sushila Devi vs. CIT (Delhi High Court)
  Vatsala Shenoy vs. JCIT (Supreme Court)
 Deputy Director Of Income Tax Vs. Virage Logic International
 Commissioner Of Income Tax-3 International Taxation Vs. Virage Logic International India
 Pr. Commissioner Of Income Tax-06 Vs. Moderate Leasing And Capital Services Pvt. Ltd.
 ITO vs. Vikram A. Pradhan (ITAT Mumbai)

1C. Crl.A.No. 555/2012 IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN Vs. STATE OF MAHARASHTRA WITH CONNECTED MATTERS. [APPEALS FILED BY THE ACCUSED
March, 31st 2013
            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




                                   2
                                       Page 2
             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:







                                                                  3
                                                                       Page 3
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:


                                                                  4
                                                                      Page 4
"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


                                                            5
                                                                Page 5
      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


                                                                     6
                                                                         Page 6
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


                                                                  7
                                                                      Page 7
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



                                                                   8
                                                                       Page 8
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).


                                                                  9
                                                                      Page 9
(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)


                                                                    10
                                                                     Page 10
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


                                                                11
                                                                 Page 11
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


                                                                 12
                                                                  Page 12
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.


                                                                  13
                                                                   Page 13
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


                                                                 14
                                                                  Page 14
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



                                                                 15
                                                                  Page 15
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.




                                                                16
                                                                 Page 16
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



                                                                  17
                                                                   Page 17
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




                                                                 18
                                                                  Page 18
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.



                                                              19
                                                               Page 19
        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


                                                                  20
                                                                   Page 20
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.


                                                                  21
                                                                   Page 21
           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.



                                                                45
                                                                 Page 45
            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




                                                                  46
                                                                   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




                                                                  47
                                                                  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.




                                                                   48
                                                                   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


                                                               49
                                                                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



                                                              50
                                                               Page 50
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


                                                              51
                                                               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,


                                                               52
                                                                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.


                                                                53
                                                                 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



                                                                54
                                                                 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.




                                                              55
                                                               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 :




                                                                  56
                                                                   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



                                                                  57
                                                                  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.




                                                                 58
                                                                  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.




                                                                  59
                                                                   Page 59
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.




                                                                 60
                                                                 Page 60
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



                                                                 61
                                                                 Page 61
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.




                                                               62
                                                                Page 62
            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 :


                                                                  63
                                                                     Page 63
 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.




                                                                  64
                                                                   Page 64
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



                                                                65
                                                                 Page 65
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





                                                                 66
                                                                  Page 66
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


                                                                 67
                                                                  Page 67
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.


                                                                  68
                                                                   Page 68
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



                                                                 69
                                                                  Page 69
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.



                                                               70
                                                               Page 70
              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


                                                             71
                                                             Page 71
         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,



                                                                   72
                                                                    Page 72
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.




                                                                  73
                                                                   Page 73
           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


                                                                 74
                                                                  Page 74
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



                                                                75
                                                                 Page 75
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)



                                                                76
                                                                 Page 76
(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



                                                               77
                                                                Page 77
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


                                                                 78
                                                                  Page 78
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


                                                                79
                                                                Page 79
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)




                                                                80
                                                                 Page 80
(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



                                                                81
                                                                 Page 81
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.




                                                            82
                                                             Page 82
           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



                                                                83
                                                                  Page 83
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


                                                              84
                                                               Page 84
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


                                                               85
                                                                Page 85
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



                                                               86
                                                                Page 86
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


                                                               87
                                                                Page 87
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



                                                                88
                                                                 Page 88
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.




                                                                   89
                                                                    Page 89
                  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.




                                                                90
                                                                 Page 90
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



                                                                 91
                                                                  Page 91
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.




                                                                92
                                                                 Page 92
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,


                                                                  93
                                                                   Page 93
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



                                                               94
                                                                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


                                                               95
                                                                Page 95
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.




                                                                96
                                                                 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.



                                                                 97
                                                                 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


                                                               98
                                                                Page 98
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.




                                                                 99
                                                                  Page 99
           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




                                                                 100
                                                                 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.



                                                                 101
                                                                 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



                                                                102
                                                               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


                                                                  103
                                                                 Page 103
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.



                                                                104
                                                               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


                                                              105
                                                             Page 105
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.




                                                                106
                                                                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


                                                                107
                                                                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


                                                   108
                                                   Page 108
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.




                                                    109
                                                    Page 109
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


                                                      110
                                                      Page 110
           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



                                                                111
                                                               Page 111
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.




                                                                 112
                                                                 Page 112
           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




                                                                113
                                                                Page 113
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


                                                                114
                                                                Page 114
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




                                                                115
                                                               Page 115
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


                                                                 116
                                                                Page 116
(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


                                                                 117
                                                                Page 117
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


                                                               118
                                                              Page 118
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.




                                                              119
                                                             Page 119
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


                                                               120
                                                              Page 120
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)




                                                               121
                                                              Page 121
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.


                                                                122
                                                               Page 122
      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



                                                              123
                                                             Page 123
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


                                                              124
                                                             Page 124
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



                                                               125
                                                              Page 125
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).




                                                                126
                                                                Page 126
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


                                                                   127
                                                                   Page 127
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



                                                                128
                                                               Page 128
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



                                                                129
                                                               Page 129
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.




                                                              130
                                                             Page 130
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


                                                                 131
                                                                 Page 131
           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



                                                                 132
                                                                Page 132
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.




                                                               133
                                                              Page 133
            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


                                                               134
                                                               Page 134
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



                                                                  135
                                                                  Page 135
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.




                                                               136
                                                              Page 136
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


                                                              137
                                                             Page 137
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


                                                              138
                                                              Page 138
(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



                                                              139
                                                             Page 139
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



                                                                 140
                                                                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)


                                                             141
                                                             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


                                                                     142
                                                                     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'

                                                             143
                                                             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



                                                        144
                                                        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


                                                                145
                                                               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.




                                                                146
                                                               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


                                                                147
                                                                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


                                                                 148
                                                                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-


                                                             149
                                                             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


                                                                 150
                                                                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




                                                               151
                                                              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.



                                                                152
                                                               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


                                                                   153
                                                                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.



                                                                154
                                                               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



                                                                 155
                                                                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



                                                                156
                                                               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


                                                                  157
                                                                  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)


                                                                158
                                                               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



                                                               159
                                                              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).


                                                                 160
                                                                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


                                                                     161
                                                                     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/-

                                                                    162
                                                                    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
                                                                 Page 164
165
Page 165
166
Page 166
 
 
Home | About Us | Terms and Conditions | Contact Us
Copyright 2016 CAinINDIA All Right Reserved.
Designed and Developed by Binarysoft Technologies Pvt. Ltd.
Integrated Software Solutions Integrated Software Development Integrated Software Services Integrated Software Solutions India Integrated Softw

Transfer Pricing | International Taxation | Business Consulting | Corporate Compliance and Consulting | Assurance and Risk Advisory | Indirect Taxes | Direct Taxes | Transaction Advisory | Regular Compliance and Reporting | Tax Assessments | International Taxation Advisory | Capital Structuring | Withholding tax advisory | Expatriate Tax Reporting | Litigation | Badges | Club Badges | Seals | Military Insignias | Emblems | Family Crest | Software Development India | Software Development Company | SEO Company | Web Application Development | MLM Software | MLM Solutions