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1F. Crl.A.No.1060/2007 SANJAY DUTT Vs. STATE OF MAHARASHTRA TR.CBI, BOMBAY WITH CONNECTED MATTERS. [APPEALS FILED UNDER ARMS ACT/EXPLOSIVE SUBSTANCES ACT
April, 09th 2013
     APPEALS FILED UNDER ARMS ACT/EXPLOSIVE
                 SUBSTANCES ACT

                        PART-6
                                             REPORTABLE

           IN THE SUPREME COURT OF INDIA

          CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO. 1060 of 2007


Sanjay Dutt (A-117)                   .... Appellant(s)

    vs.

The State of Maharashtra,
through CBI (STF), Bombay             ....
Respondent(s)


                            WITH

           Criminal Appeal No. 1102 of 2007


Yusuf Mohsin Nulwalla (A-118)            .... Appellant(s)

    vs.

The State of Maharashtra,
through CBI (STF), Bombay             ....
Respondent(s)




                                                       1
                                                     Page 1
                             AND

           Criminal Appeal No. 1687 of 2007


Kersi Bapuji Adajania (A-124)               ....
Appellant(s)

     vs.

The State of Maharashtra,
through CBI (STF), Bombay                ....
Respondent(s)


                            WITH
               Criminal Appeal No. 596 of 2011

                        WITH
           Criminal Appeal No. 1104 of 2007
                         AND
           Criminal Appeal No. 1026 of 2012

                         WITH
           Criminal Appeal No. 1001 of 2007
                         AND
           Criminal Appeal No. 392 of 2011




                            ********




                                                    2
                                                   Page 2
           Criminal Appeal No. 1060 of 2007


Sanjay Dutt (A-117)                   .... Appellant(s)

     vs.

The State of Maharashtra,
through CBI (STF), Bombay             ....
Respondent(s)

                            WITH

           Criminal Appeal No. 1102 of 2007


Yusuf Mohsin Nulwalla (A-118)            .... Appellant(s)

     vs.

The State of Maharashtra,
through CBI (STF), Bombay             ....
Respondent(s)

                             AND

           Criminal Appeal No. 1687 of 2007


Kersi Bapuji Adajania (A-124)            ....
Appellant(s)

     vs.

The State of Maharashtra,
through CBI (STF), Bombay             ....
Respondent(s)


                                                       3
                                                     Page 3
                              **********



P. Sathasivam, J.

1) Mr. Harish Salve, Mr. Surendra Singh, Mr. B.H. Marlapalle

learned senior counsel appeared for A-117, A-118, A-124

respectively and Mr. Raval, learned ASG duly assisted by Mr.

Satyakam, learned counsel appeared for the respondent-CBI.

2)   The abovesaid appeals are directed against the final

judgment and order of conviction and sentence dated

28.11.2006 and 31.07.2007 respectively by the Designated

Court under TADA for the Bombay Bomb Blast Case, Greater

Bombay in B.B.C. No.1/1993.

Charges:




3)   A common charge of conspiracy was framed against all

the co-conspirators including the appellants.           The relevant

portion of the said charge is reproduced hereunder:

     "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


                                                                      4
                                                                     Page 4
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, handgrenades
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/co-conspirators, 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 Santacruz, Zaveri
Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol
Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in
lobbing handgrenades at Macchimar Hindu Colony, Mahim
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) of TADA (P) Act, 1987 and Section 120-
B of IPC read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 of
TADA (P) Act, 1987 and read with Sections 302, 307, 326,


                                                                  5
                                                                 Page 5
    324, 427, 435, 436, 201 and 212 of Indian Penal Code and
    offences under Sections 3 and 7 read with Sections 25 (1-
    A), (1-B)(a) of the Arms Act, 1959, Sections 9B (1)(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."

    In addition to the above-said principal charge of
conspiracy, the appellants were also charged on other
counts which are as under:

Sanjay Dutt (A-117):
    At head Secondly; The appellant, in pursuance of the
    aforesaid criminal conspiracy and during the period from
    January, 1993 to April, 1993, agreed to keep in his
    possession and acquired 3 AK-56 rifles and its ammunition,
    one 9mm pistol and its cartridges and handgrenades,
    unauthorisedly, which were part of the consignments
    smuggled into the country by Dawood Ibrahim Kaskar and
    his associates knowingly and intentionally that these were
    smuggled into the country for the purpose of committing
    terrorists acts and that he thereby committed an offence
    punishable under Section 3(3) of TADA.

    At head Thirdly; The appellant, by doing the aforesaid
    act, unauthorisedly, in Greater Bombay which is specified
    as a Notified Area under Clause (f) of Sub Section (1) of
    Section 2 of TADA and thereby committed an offence
    punishable under Section 5 of TADA.

    At head Fourthly; The appellant possessed the above
    mentioned arms and ammunitions with an intent to aid
    terrorists and contravened the provisions of the Arms Act,
    1959 and the Arms Rules, 1962, the Explosive Substances
    Act, 1908 and the Explosives Rules, 2008 and thereby
    committed an offence punishable under Section 6 of TADA.

    At head Fifthly; The appellant, by doing the aforesaid
    act, committed an offence punishable under Sections 3 and
    7 read with Sections 25(1-A) (1-B)(a) of the Arms Act,
    1959.

Yusuf Nulwalla (A-118):


                                                                    6
                                                                   Page 6
    At head Secondly; The appellant acquired AK-56 Rifles
    and its carridges and one 9mm pistol and its cartridges
    which were smuggled into the country for committing
    terrorist acts and destroyed the said AK-56 Rifle with the
    assistance of Kersi Adajania (A-124) and entrusted him the
    9mm pistol and its cartridges for safe custody and thereby
    committed an offence punishable under Section 3(3) of
    TADA.

       At head Thirdly; The appellant acquired the
    abovementioned arms and ammunitions from the house of
    Sanjay Dutt (A-117) and possessed the same,
    unauthorisedly, in a notified area of Greater Bombay and
    thereby committed an offence punishable under Section 5
    of TADA.
    At head Fourthly; The appellant acquired and possessed
    the abovementioned arms and ammunitions and failed to
    give information to Police/Magistrate with an intent to aid
    terrorists and thereby committed an offence punishable
    under Section 6 of TADA.

    At head Fifthly; The appellant, by doing the aforesaid
    act, committed an offence punishable under Sections 3 and
    7 read with Sections 25(1-A), (1-B)(a) of the Arms Act,
    1959.

    At head Sixthly; The appellant caused destruction of the
    abovementioned arms and ammunitions with an intention
    to screen him and other co-conspirators from legal
    punishment and thereby committed an offence punishable
    under Section 201 of the IPC.

Kersi Adajania (A-124):

    At head Secondly; The appellant aided and abetted
    Yusuf Nulwalla (A-118) in destroying AK-56 rifle and
    disposing of 9mm pistol and its cartridges which were
    smuggled into the country for committing terrorist acts and
    thereby committed an offence punishable under Section
    3(3) of TADA.

     At head Thirdly; In the first week of April, 1993, the
    appellant had in his possession one AK-56 rifle, one 9 mm
    pistol and its rounds in a notified area of Bombay and
    thereby committed an offence punishable under Section 5
    of TADA.


                                                                   7
                                                                  Page 7
     At head Fourthly; The appellant possessed the said arms
     and ammunitions with an intention to aid terrorists and
     thereby committed an offence punishable under Section 6
     of TADA.

     At head Fifthly; The appellant, by possessing the
     abovementioned arms and ammunitions, unauthorisedly,
     committed an offence punishable under Sections 3 and 7
     read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959.

     At head Sixthly; The appellant caused destruction of the
     abovementioned AK-56 rifle, 9mm pistol and its
     ammunitions which were smuggled into the country for
     commission of terrorist acts with the intention of screening
     himself and the other co-conspirators from legal
     punishment and thereby committed an offence punishable
     under Section 201 of the IPC.

4)   The appellants have been convicted and sentenced for

the above said charges as under:


Conviction and Sentence:
Sanjay Dutt (A-117):
     A-117 has been convicted for the offence punishable

under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a)

of the Arms Act, 1959 and sentenced to suffer RI for 6 years

along with a fine of Rs. 25,000/-, in default, to further

undergo RI for a period of 6 months. However, the appellant

was not found guilty of all other offences for which he was

charged and, accordingly, acquitted for all the said offences.


Yusuf Mohsin Nulwalla (A-118):



                                                                     8
                                                                    Page 8
(i)    A-118 has been convicted for the offence punishable

under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a)

of the Arms Act, 1959 and sentenced to RI for 5 years along

with a fine of Rs. 25,000/-, in default, to further undergo RI

for a period of 6 months.


(ii)   The appellant has been further convicted for the

offence punishable under Section 201 of IPC and sentenced

to suffer RI for 2 years.      However, the aforesaid accused

being found not guilty of all other offences for which he was

charged at trial.


Kersi Bapuji Adajania (A-124):


(i)    A-124 has been convicted for the offence punishable

under Sections 3 and 7 read with Sections 25(1-A), (1-B)(a)

of the Arms Act, 1959 and sentenced to suffer RI for 2 years

alongwith a fine of Rs. 25,000/-, in default, to suffer further

RI for a period of 6 months.


(ii)   The appellant has been further convicted for the

offence punishable under Section 201 of IPC mentioned at

head sixthly and sentenced to suffer RI for 2 years.

                                                            9
                                                          Page 9
However, the aforesaid accused also being not found guilty

of all other offences for which he was charged at trial.


Brief Facts:-


5)    Before adverting to the detailed analysis of the

evidence and the contentions urged, the story of the

prosecution is as under:


(a)   Babri   Masjid     at   Ayodhya      was    demolished     on

06.12.1992.     After its demolition, violence broke out

throughout the country.          Tiger Memon (AA) and Dawood

Ibrahim (AA), a resident of Dubai, in order to take revenge of

the said demolition, formulated a conspiracy to commit

terrorist act in the city of Bombay. In pursuance of the said

object,   Dawood       Ibrahim    agreed   to    send   arms    and

ammunitions from abroad. Tiger Memon, in association with

his men, particularly, the accused persons, received those

arms and ammunitions through sea-coasts of Bombay. The

evidence on record establishes that the said consignment

was a result of a conspiracy between Dawood Ibrahim




                                                                 10
                                                               Page 10
Kaskar, Mohammed Dosa and Tiger Memon (all three

absconding accused).


(b)   On 15.01.1993, Samir Hingora (A-53), Hanif Kandawala

(A-40), Ibrahim Musa Chauhan@Baba (A-41) and Abu Salem

(A-139) - then absconding, came to the residence of the

appellant (A-117) at Pali Hill, Bandra, Bombay and told him

that they would deliver the weapons tomorrow i.e., on

16.01.1993. On 16.01.1993, A-53, A-41 and A-139 delivered

3 AK-56 Rifles and 250 rounds of ammunitions and some

handgrenades at the residence of A-117.      On 18.01.1993,

out of the abovesaid 3 AK-56 Rifles and ammunitions, 2 rifles

and some ammunition were taken away by co-accused

persons including one Mansoor Ahmed (A-89).


(c)   On 12.03.1993, bomb explosions took place at various

places in Bombay causing death of 257 persons, injuries to

713 and destruction of property worth about Rs. 27 crores.


(d)   On 18.04.1993, A-89 was taken in police custody

whereas A-117 was arrested from the Mumbai International

Airport on 19.04.1993 upon his arrival from Mauritius.    On


                                                             11
                                                       Page 11
the same day, at about 15:30-15:40 hrs., he made a

statement to the police that the rifle and the pistol and its

rounds thereof have been kept with A-118 and that he would

identify him and his house in Dongri, Umarkhari. He also led

the police party to the house of A-118 at 15:45 hrs. When

wherebaouts of A-118 were searched, it was found that he

was detained by the Dongri Police Station in connection with

the non-renewal of Arms licence.


(e)   A-118 was summoned from Dongri Police Station and

produced    before   DCB-CID.      He    made   a   statement

mentioning the name of A-124 and led the police party to his

house.


(f)   During investigation, A-124 produced a spring and a rod

remanent of the burnt AK-56 and also made a further

statement regarding 9mm pistol and led the police party to

A-125.   A-125 made a statement and after that the police

party proceeded to the house of A-120.




                                                          12
                                                        Page 12
(g)   A-120 produced a bag containing box wherein the pistol

and its cartridges were found. His statement was recorded

and the articles were seized and a Panchnama was drawn.


(h)   All the above facts form part of the complaint

culminated into the registration of a Local Act Case (LAC)

bearing No. 21 of 1993 in respect of the abvoesaid 5

persons, namely, A-117, A-118, A-124, A-125 and A-120.

The said complaint mentioned that the investigation being

carried out in furtherance of C.R. No. 70 of 1993.        The

sequence of events after the arrest of A-117 till the recovery

of pistol from A-120 formed part of an unbroken chain

inseparably connected with each other.


(i)   On 22.04.1993, Mr. Krishan Lal Bishnoi, the then DCP

(PW-193), who was investigating Worli Blast from 13.03.1993

was withdrawn from investigation.     On 26.04.1993, A-117

expressed his desire to make a confession and, accordingly,

he was produced before PW-193, who after recording the

preliminary statement (First part), awarded him a period of

48 hours for cooling off.



                                                           13
                                                        Page 13
(j)   On 27.04.1993, the confession of A-118 was recorded

by Mr. Bishnoi (PW-193) in first part and a further time for

reflection was awarded to him.


(k)   On 28.04.1993, PW-193 recorded the second part of the

confession     of   A-117.     Similarly,   on     29.04.1993,    the

confession     of   A-118    was   recorded   by    PW-193   which

remained un-retracted.


(l)   On 03.05.1993, A-117 was sent to the judicial custody.

On 05.05.1993, A-117 filed a writ petition before the Bombay

High Court and the High Court released him on interim bail

with the direction that the bail granted to A-117 would

continue till the filing of charge sheet in the Designated

Court and after that the said Court would consider his bail

application.


(m) Between 18th and 20th May, 1993, and 24th and 26th May,

1993, confessions of A-53 and A-89 respectively were

recorded by PW-193.


(n)   On 04.11.1993, a consolidated charge sheet was filed

against all the accused persons including the appellants (A-

                                                                   14
                                                                 Page 14
117, A-118 and A-124).         On 19.06.1994, A-117 applied for

bail   before   the   Designated     Court.      By   order     dated

04.07.1994,     the   Designated    Court     dismissed   the    said

application.


(o)    Against the said order, A-117 filed a special leave

petition before this Court and prayed for grant of bail. After

hearing the bail petition, this Court, by order dated

18.08.1994 in Sanjay Dutt vs. State (I), (1994) 5 SCC 402,

referred the matter to the Constitution Bench on the

question of interpretation and construction of the provisions

of TADA, namely, Section 5 as well as Section 20. By order

dated 09.09.1994, the said reference was answered by the

Constitution Bench in Sanjay Dutt vs. State (II), (1994) 5

SCC 410. After the reference was answered, the matter was

placed before the regular Bench for consideration of the bail

application. By order dated 23.09.1994, this Court rejected

the application for bail filed by A-117. On 09.11.1994, A-117

filed a detailed retraction.




                                                                  15
                                                                Page 15
(p)   In June, 1995, in view of the directions of this Court in

Kartar Singh vs. State of Punjab, (1994) 3 SCC 569, the

Central and State Government set up a Review Committee in

order to individually review the cases of the accused persons

involved in the Bombay bomb blasts case to consider

whether or not the provisions of TADA are applicable against

individual accused persons and whether or not any of the

accused    persons   ought to          be    entitled   to   bail?     On

08.08.1995,    the      report    of        the   Review     Committee

recommended      that    the     public      prosecutor,     on   certain

parameters, may recommend certain cases for bail.                     The

case of A-117 was one such case that was considered for

grant of bail by the public prosecutor. The said report was

filed by the prosecution before the trial Court on 09.08.1995.

The CBI, in M.A. No. 312 of 1995, filed an application before

the Designated Court stating that they have no objection for

grant of bail to A-117 and 11 others.


(q)   On 11.09.1995, in view of the report of the Review

Committee, A-117 renewed his prayer for bail before the

Designated Court but the Designated Court again dismissed

                                                                       16
                                                                     Page 16
the said application.        In September, 1995, challenging the

said order, A-117 filed Criminal Appeal No. 1196 of 1995

before this Court and prayed for grant of bail.                    On

16.10.1995, this Court granted bail to him till the completion

of his trial. (1995 (6) SCC 189).


(r)    By   order    dated    28.11.2006     and   31.07.2007,    the

appellants (A-117, A-118 and A-124) were convicted and

sentenced by the Designated Court as mentioned earlier.


Evidence

6)     The prosecution relied on the following evidence which

is in the form of:-

(i)    the evidence of their own confessions;

(ii)   confessions    made      by   other   co-conspirators;     (co-

       accused)

(iii) Deposition of Prosecution witnesses, viz., ­ Shri Krishan

Lal Bishnoi (PW-193), the then DCP, Pandharinath H. Shinde

(PW-218)- who was on guard duty at the bungalow of Sunil

Dutt, Manohar Vasudev Shirdokar (PW-219)-Sr. Inspector of

Police, Suresh S. Walishetty (PW-680), Rajaram Ramchandra



                                                                   17
                                                                 Page 17
Joshi (PW-475), API, Panch Witness Shashikant Rajaram

Sawant (PW-211), Gangaram Bajoji (PW-265)-independent

witness and Karmegam Algappan, PW-472 attached with

computer cell of MTNL, Malabar Hill and;

(iv) documentary evidence.




Submissions made by Mr. Harish Salve, learned senior
counsel for the appellant (A-117)

7)   Mr. Harish Salve, learned senior counsel for A-117, at

the foremost, submitted that reliance on the confessional

statement made by A-117 is impermissible. He pointed out

that the contention that the judgments of this Court have

held that the prosecution can rely on the confession of an

accused made before a police officer in every case where

the accused is charged of a TADA offence, as long as the

trial is joint, has been misconceived.     He also pointed out

that if the language of the provisions led to a situation that a

confession to the police becomes admissible irrespective of

the fate of the TADA charge, then it would lead to invidious

discrimination between the accused, who were charged (but


                                                             18
                                                          Page 18
acquitted) under TADA along with other offences and those

who were accused only of non-TADA offences.

8)   Mr. Harish Salve further pointed out that in Prakash

Kumar @ Prakash Bhutto vs. State of Gujarat (2005) 2

SCC 409, it was contended before the Court that "rigours of

Section 12 are discriminatory and attract the wrath of

Articles 14 and 21 of the Constitution as it empowers the

Designated Court to try and convict the accused for the

offences committed under any other law along with the

offences committed under TADA thereby depriving the rights

available to the accused under the ordinary law."       This

contention was rejected by holding that "Section 12 is to

take care of the offences connected with or incidental to

terrorist activities. The other offences being connected and

inextricably intertwined with the terrorist act."

9)   He further pointed out that a Bench of five Judges of

this Court in Sanjay Dutt vs. State (1994) 5 SCC 410, had

observed in paragraph 14 that "the construction made of

any provision of this Act must therefore be to promote the

object of its enactment to enable the machinery to deal


                                                         19
                                                       Page 19
effectively with the persons involved in, and the associated

with, terrorist and disruptive activities while ensuring that

any person not in that category should not be subject to the

rigors of the stringent provisions of the ....Act.   It must,

therefore, be borne in mind that any person who is being

dealt with and prosecuted in accordance with the provisions

of the TADA must ordinarily have the opportunity to show

that he does not belong to the category of persons governed

by TADA.   Such a course would permit exclusion from its

ambit of persons not intended to be covered by it......"   In

paragraph 17, this Court cited with approval an earlier

decision, viz., Niranjan Singh Karam Singh Punjabi vs.

Jitendra Bhimraj BijayaI, (1990) 4 SCC 76 in which it was

observed that "when a law visits a person with serious penal

consequences, extra care must be taken to ensure that

those whom the Legislature did not intend to become by the

express language of the Statute are not roped in by

stretching the language of the law." This Court read down

the provisions of Section 5 of TADA and held that the

presumption under the said section in relation to possession





                                                           20
                                                        Page 20
of weapons was a rebuttable presumption and an accused

could always establish his innocence in relation to that

statute.

10) According to him, only where the transactions in

respect of which an accused is convicted are interrelated

inextricably with the transactions which fall under TADA,

then Section 12 would enable the prosecution to rely upon

the confession of the accused made to a police officer. He

further pointed out that it would be a travesty to apply this

principle in the present case.

11) By poining out the confession of the appellant (A-117),

learned senior counsel contended that even if we believe the

statements made, it would simply establish a case of

violation of the Arms Act, there is no suggestion of any

terrorist act. On the contrary, the act was the resultant of

the personal as well as the security need of the family of the

appellant. He further contended that judicial notice must be

taken of the state of affairs in Bombay during the post Babri

Masjid demolition period, particularly, in January, 1993. It is

further pointed out that the Legislature did not intend to


                                                            21
                                                         Page 21
cover such persons ever in a law dealing with terrorism. The

victims of terrorism of a kind (vicious communal riots)

cannot and should not be treated at par with perpetrators.

12) He further pointed out that the unchallenged finding of

the trial Court in the present case is that the alleged

acquisition of 2 illegal weapons by the appellant (A-117) was

at a different point of time, much before even the conspiracy

in relation to the Bombay blasts was commenced.              He

further contended that the provocation for the alleged

acquisition was not the conspiracy or any act or omission

related to the Bombay blasts, but related to an entirely

different event, i.e., the riots in January 1993 and the

appellant (A-117) allegedly, out of fear for his own life and

for the security of his family, acquired those weapons.

Under such circumstances, the question of any connection

leave alone the acquisition of weapons or any act or

omission relating to the Bombay blasts is conspicuous by its

absence.

13) With regard to the evidence in order to establish that

the appellant was in conversation with Anees over phone,


                                                             22
                                                       Page 22
learned      senior   counsel   contended   that   the   alleged

confession of Samir Hingora (A-53) as well as of Hanif

Kandawala (A-40) (his partner) to the effect that the

appellant (A-117) was in conversation with Anees relates to

A-53's visit to the house of the appellant (A-117) on the

night of 15th January whereas the call records relied on were

of 16th January, 1993.

14) Learned senior counsel also pointed out that the

prosecution has not appealed the findings of the Designated

Court and the alleged confession which suggested that the

appellant (A-117) was in conversation with Anees is, in fact,

unbelievable. One significant reason for the same is that it

does not explain as to how Samir could have known that the

appellant was in conversation with someone on a landline

telephone which was inside his house. This attempt of the

prosecution to unnecessarily create prejudice against the

appellant (A-117) is baseless and, therefore, merits summary

rejection.    The judgment of this Court in Sanjay Dutt's

case (supra) dealt with a pure interpretation of Section 5 of

TADA. It clearly lays down that the possession of a weapon


                                                             23
                                                           Page 23
is not per se a TADA offence.     Section 5 mearly raises a

presumption that a person, who is in possession of

unauthorized arms or ammunitions of the specified variety,

would be liable to be punished under TADA.      According to

him, this Court, in fact, read down the plain language of

Section 5 to make it applicable only as a presumptive rule of

evidence. This issue is no longer open because it has been

conclusively found that the alleged acquisition of the weapon

had absolutely nothing to do with any of the alleged terrorist

activities of the other accused in the conspiracy.   Learned

senior counsel for the appellant further contended that the

State has not filed an appeal in the matter, hence, stands

concluded.

15) In addition to the above arguments, Mr. Surendra

Singh, learned senior counsel for A-118 contended that

everything was manufactured at the Crime Branch Police

Station. He further contended that even if A-118 was having

possession of AK 56 rifle, memorandum for the same was

not signed by him and Sections 12 and 15 of TADA have no

application in his case.    He further submitted that his


                                                           24
                                                        Page 24
confession is hit by Section 25 of the Evidence Act, 1872 and

his alleged statement is compelled one which is hit by Article

21 of the Constitution.

16) Similar to the contentions of Mr. Salve and Mr. Singh,

Mr. B.H. Marlapalle, learned senior counsel for A-124 also

contended that there was no constructive possession of any

weapon and A-124 was not having any knowledge about it.

He also contended that he was charged only under the Arms

act and IPC which has nothing to do with TADA and the

offence against him, if any, ought to have been referred to

the normal criminal court and for that reason, the confession

recorded under TADA ought to have been erased. He also

very much relied on the decisions of this Court in Sanjay

Dutt (supra), Prakash Kumar (supra) and Mohd. Amin

vs. CBI (2008) 15 SCC 49.

17) Learned ASG met all the contentions and took us

through the relevant materials relied on by the prosecution.

Confesssional Statement of Sanjay Dutt (A-117)

18) The confessional statement of A-117 was duly recorded

under Section 15 of TADA on 26.04.1993 at 15.30 hrs. (First


                                                           25
                                                        Page 25
Part) and on 28.04.1993 at 1600 hrs. (Second Part) by Shri

Krishan Lal Bishnoi (PW-193), the then DCP, Zone III,

Bombay. The following extracts from the confession of the

appellant are pertinent:


"(i) I am having three valid license for fire arms and

       possess 3 fire arms as mentioned below:

       (a) 270 Rifle of BRUNO make;

       (b) 375 Magnum Double barreled Rifle; and

       (c) 12 Bore Gun of Double Barrel.

(ii)   I purchased these weapons due to my fondness for

       hunting. I normally go for hunting with one friend

       of mine, viz., Mr. Yusuf Nullwala as he is an

       experienced hunter.    I also know one friend of

       Yusuf Nullwala by name Kersi Bapuji Adajenia and

       met him three times.

(iii) In December, 1991, I had given dates for shooting

       to actor producer Firoz Khan for his film Yalgar.

       He had taken the whole unit for shooting in Dubai.

       During one of the shootings, Firoz Khan introduced



                                                            26
                                                          Page 26
      me to one Mr. Daud Ibrahim and also to his

      brother Anees during another shooting session.

      After that, Anees used to visit us regularly during

      the shootings and also at the place of our stay.

(iv) Since Anees used to come frequently, I become

      well acquainted with him.

(v)   I also know the proprietors of Magnum Video,

      namely Hanif Kandawala and Samir Hingora. I also

      signed for acting in one of their film Sanam. Samir

      is treasurer of Indian Motion Picture Association

      (IMPA).   Hanif and Samir used to come quite

      frequently to my house for taking dates for

      shooting from my Secretary.

(vi) Hanif told me that if I so desire, he would make

      immediate arrangements to provide an automatic

      fire arm to me for my protection. Initially, I did not

      show any interest but when Hanif and Samir

      started repeatedly telling me to acquire a firearm

      from them, I gradually fell prey to their persistent

      suggestion and expressed my desire to Hanif and


                                                                 27
                                                               Page 27
      Samir. They said that they would immediately

      provide me with an automatic fire arm.

(vii) One day, in mid Jan., in the evening, around 9.00

      to 9.30 p.m., Hanif and Samir came to my house

      along with one person by name Salem. I had met

      this Salem once or twice earlier also.

(viii) Then these 3 fellows told me that they were

      coming tomorrow morning with the weapons to be

      delivered to you. Then they went away.

(ix) Next day morning Samir, Hanif and Salem all three

      came to my house along with one other person

      who is not known to me.

(x)   They came in a Maruti Van and parked it in a Tin

      shed which is used by us for parking our vehicles.

      One person was sitting inside the Maruti Van.

      After about 15-20 min., he took out three rifles

      and they said it is AK-56 rifles.

(xi) I got some cloth from my house and gave it to

      them. Salem and the person who has come with




                                                             28
                                                           Page 28
     him wrapped those rifles in the cloth and gave it to

     me.

(xii) When I opened and saw it, there were three rifles

     some magazines and rounds, they have told me

     that there are 250 rounds. The rounds were kept

     in another hand bag fetched by me.

(xiii) On seeing three rifles, I got scared and told them

     that I wanted only one weapon. Then Hanif and

     Salem told me to keep it for the time being and in

     case it is not required, we will take away the rest

     of the two weapons.

(xiv) They have also shown me some brown coloured

     hand-grenades and asked me whether I want that

     also. I do not want these grenades and you may

     please leave my house immediately, I told them.

(xv) I kept these rifles and ammunition in the dickey of

     my Fiat Car No. MMU 4372 and locked it.

(xvi) On the same night, I removed the three rifles and

     ammunition, kept the same in a handbag which I




                                                              29
                                                            Page 29
      kept in my private hall which was on the 2 nd floor

      of our bungalow.

(xvii)Two days thereafter, since I had considerable

      mental tension, I contacted Hanif Kandawala and

      requested him to take away the weapons. He said

      that he would arrange to send somebody to collect

      the same.     After two days, Hanif Kandawala and

      Samir Hingora along with Salem came to my

      house in the evening in a car. I returned two AK-

      56 rifles and a part of the ammunition to them but

      retained one AK-56 rifle and some ammunitions

      with me.

(xviii)    Around    Sept.   1992,   during   one   of    my

      shooting at R.K. Studio, one Kayyum, who is a

      member of Dawood Ibrahim gang, who had also

      met me in Dubai at the time of shooting of the film

      Yalgar approached me with a stranger.              They

      offered me a 9 mm pistol with ammunition. When

      I saw it, I liked it and had a strong desire to

      purchase the same.     They offered it to me for a


                                                                30
                                                            Page 30
     sum of Rs.40,000/-. I paid the said amount in cash

     to them at my house and purchased the same. I

     do not know the name of that person who was

     brought by Kayyum. However, he was aged about

     35-38 years, apparently, Muslim, dark complexion,

     height about 5'8", fat built, moustache, medium

     curly hair, wearing shirt and pant. I will be able to

     identify him if brought before me. He also handed

     over 8 rounds of the said pistol.

(xix) On 2nd April, I left for Mauritious for shooting of the

     film `Aatish'. There I was informed by a casual

     contact that Hanif and Samir have been arrested

     by the Bombay Police for their complicity in bomb

     blasts.

(xx) On hearing the news, I got frightened as these

     fellows had given me the AK-56 rifles and they

     may tell my name to the police to involve me in

     the bomb blasts case. I contacted my friend Mr.

     Yusuf Nullwala on telephone and asked him that

     something is lying in a black coloured bag which is


                                                                31
                                                             Page 31
     kept in my hall at the second floor of my house

     and it should be taken away immediately and

     destroy the things completely which are there in

     the bag, otherwise, I shall be in a great trouble.

     By this time, the news about my possession of AK-

     56 rifles had appeared in the press and on coming

     to know about this, my father asked me about the

     truthfulness of this news, but I denied the same.

     My anxiety about the whole episode became

     unbearable and I decided to return to Bombay in

     between. My father informed my flight details to

     the Police and I was picked up by police as soon as

     I landed at Bombay and I confessed the whole

     things to them."

19) The abovesaid confession highlighted the crime for

which the appellant-Sanjay Dutt has been charged.           The

following facts emerge from the abovesaid confession:

i)   He was already having three licensed firearms.




                                                             32
                                                           Page 32
ii)    He developed acquaintance with Anees Ibrahim -

       brother of Dawood Ibrahim during a film-shooting in

       Dubai.

iii)   He expressed his desire to Samir Hingora (A-53) and

       Hanif Kandawala (A-40) to have an automatic fire-arm.

iv)    They came with one Salem with whom Sanjay Dutt was

       already acquainted with and they assured him of the

       delivery of weapons the next day in the morning.

v)     They came in the morning of 16.01.1993 with one other

       person and delivered 3 AK-56 Rifles and 250 rounds.

vi)    After 2 days, he returned 2 AK-56 and ammunitions but

       retained 1 AK-56 and some ammunition.

vii)   In April, while he was shooting at Mauritius, he heard

       the news of the arrest of Samir and Hanif, on which, he

       got frightened and requested his friend Yusuf Nulwalla

       to destroy the weapons.

20) The appellant (A-117) not only implicates himself in the

above said statement but also amongst others the appellant-

Yusuf Nulwalla (A-118). The abovesaid confession has been

duly recorded by PW-193 who has proved the compliance


                                                             33
                                                          Page 33
with the provisions of law while recording the confession.

The abovesaid confession is a substantive piece of evidence

and it has been held in a series of judgments that the

confession can be the sole basis of conviction, if recorded in

accordance with the provisions of TADA. Further, the

confessional    statement      establishes   the   unauthorized

possession of weapons in the notified area of Bombay.

Confessional Statements of co-accused:

21) The confession of the appellant (A-117) is substantiated

and corroborated with the confession of other co-accused,

namely, Samir Hingora (A-53), Baba @ Ibrahim Musa

Chauhan (A-41), Mansoor Ahmed (A-89), Hanif Kandawala

(A-40), Yusuf Nulwalla (A-118) and Kersi Bapuji Adajania (A-

124) which are as under.

Confessional Statement of Samir Ahmed Hingora (A-

53)

      Confessional statement of A-53 under Section 15 of

TADA    was    recorded   on   18.05.1993    (17:00   hrs.)    and

20.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),




                                                                34
                                                              Page 34
the then DCP, Zone III, Bombay. The said confession reveals

as under:

i)     He started a Video Library and Mustafa Dossa @

       Mustafa Majnoo (A-138) - brother of Mohd. Dossa (AA)

       was a member of his Video Library and he had 2-3

       shops in the same market.

ii)    Tiger Memon used to work with Mustafa Dossa and

       became a friend of A-53.

iii)   A-53 started film distribution and production business

       by the name of `Magnum' in partnership with Hanif

       Kandawala (A-40 ­ since died).

iv)    Anis Ibrahim (AA) became a member of his Video

       Library and was referred to by everyone as Anisbhai

       since he was the brother of Dawood Ibrahim.

v)     A-53 received a payment of Rs. 21.90 lacs from Ayub

       Memon sent through someone on 13.03.1993 (one day

       after the blasts) as advance for purchasing rights of

       films.

vi)    A-53 had visited Dubai and met Anis Ibrahim many

       times and sold the rights of many films to M/s Kings


                                                          35
                                                        Page 35
       Video, managed by Anis. Anis also controls Al-Mansoor

       Video Company through Chota Rajan.

vii)   On 15.01.1993, A-41 and A-139 met A-53 at his office.

       Anis Ibrahim called him from Dubai and said that A-41

       and A-139 are his men and they have some weapons

       which have to be delivered to A-117 at his residence.

viii) A-53 and A-139 went to Sanjay Dutt's (A-117) house

       where he hugged Abu Salem and asked him about the

       weapons. A-117 then told A-139 to bring the weapons

       next day at 7 am.

ix)    On 16.01.1993, A-53 led A-139 and A-41 to the house of

       Sanjay Dutt. A-139 and A-41 were in a blue maruti van

       while A-53 was in his own car.

x)     At the residence of A-117, A-53 saw that the blue van

       was containing 9 AK-56 rifles and hand grenades and

       they gave 3 AK-56 rifles and some magazines to A-117.

       A-117 also asked for some hand grenades which were

       put in a black bag by A-139.

xi)    A-139 kept the rifles in a fiat car belonging to A-117.

       The hand grenades were kept in the car of A-53 and he


                                                               36
                                                         Page 36
        left the car at A-117's residence and took an auto

        rickshaw.

xii)    A-53 collected his car from A-117's residence after 3

        days when he called him and said that grenades have

        been taken out.

Confessional statement of Baba @ Ibhrahim Musa
Chauhan (A-41)


        Confessional statement of A-41 was recorded under

Section 15 of TADA on 23.04.1993 (12:45 hrs.) and

25.04.1993 (13:05 hrs.) by Shri Prem Krishna Jain (PW-189),

the then DCP, Zone X, Bombay. The said confession shows

that:

(i)     A-41 was introduced to Anees Ibrahim Kaskar (AA)-

        brother of Dawood Ibrahim and Abu Salem when he had

        been to Dubai and, thereafter, he developed good

        acquaintance with both of them.

(ii)    On 15.01.993, A-139 telephoned A-41 and asked him to

        arrange for a garage having facility of closing it by

        shutter.




                                                          37
                                                        Page 37
(iii) Abu Salem is an extortionist and worked for Anees

      Ibrahim.

(iv) Thereafter, A-139 went to the office of A-41 and

      inquired if he had received a phone call from Anees

      Ibrahim. On replying in the negative, A-139 went to a

      nearby STD booth and called Anees and then made A-

      41 talk to him, at that time, A-41 told him that the

      garages, as required, cannot be arranged by him.

(v)   Thereafter, at the behest of Anees Ibrahim (AA), A-41

      along with A-139 went in search for garages in Bandra

      and Pali Hills area and Samir Hingora (A-53) and Hanif

      Kandawala (A-40) also joined them.

(vi) Since they did not find any garage, A-139, A-53 and A-

      41 informed the same to Anees over phone who was in

      Dubai and it was decided that the work of finding out

      the garage would be carried out the next day. In the

      meanwhile, A-139 told A-41 that he will keep 2 to 3 AK-

      56 rifles with him for 2/3 days.

(vii) On the next day i.e. 16.01.1993, A-139 went to the

      house of A-41 and told him to take a white coloured


                                                           38
                                                         Page 38
      Maruti van bearing registration number of Gujarat,

      which was parked near the Arsha Shopping Centre, and

      to reach the office of Magnum Video. Accordingly, he

      went to the said place and from there he along with A-

      139 and A-53, went to the house of A-117.

(viii) At that time, A-139 introduced A-41 to A-117.

(ix) A-41 parked the above white coloured Maruti Van which

      he had driven to reach the house of Sanjay Dutt in his

      garage.

(x)   There     were   9   AK-56   rifles,   80   hand   grenades,

      1500/2000 cartridges and 56 magazines in the cavities

      beneath the rear seat of the aforesaid Maruti Van as

      well as inside the lining near the front and rear side

      doors, out of which, 3 rifles, 9 magazines, 450 bullets

      and 20 hand grenades were asked to be kept by A-139

      in Sanjay Dutt's Fiat car.

(xi) Accordingly, A-41 shifted the cartridges and magazines

      to a sports bag and kept it in Sanjay Dutt's car.

(xii) A-53 packed the above mentioned 20 grenades in

      another sports bag and kept it in Sanjay Dutt's car and


                                                               39
                                                             Page 39
       gave another long sports bag to A-41 in which he filled

       3 rifles, 16 magazines, 25 hand grenades and 750

       cartridges. A-41 took the said bag to his house and hid

       it beneath his bed and on the next day, A-41 loaded all

       the bullets in the magazines of the rifles.


Confessional Statement of Manzoor Ahmed Sayyed
Ahmed (A-89)


       Confessional statement of A-89 under Section 15 of

TADA was duly recorded on 24.05.1993 (11:15 hrs.) and

26.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193)

the then DCP, Zone III, Bombay. The said confession reveals

as under:

i)     A-89 was a good friend of Abu Salem.

ii)    He owns a Maruti 1000 bearing No. MP 23 B-9264.

iii)   On 22/23rd January, 1993, A-89 met A-139. A-139 gave

       the keys of his car to A-41 who kept a black bag of

       weapons in it.

iv)    A-139 and A-89 then went to the first floor of 22 Mount

       Mary, Vidhyanchal Apts. They gave the bag to an old



                                                           40
                                                         Page 40
       lady, viz., Zaibunisa Anwar Kazi (A-119) and told her

       that the arms were for the purpose of causing riots, and

       were sent by Anees Ibrahim - brother of Dawood

       Ibrahim.

v)     A-119 looked at the contents of the bag and then kept

       it at her residence.

vi)    After 8 days, A-139 called A-89 again and together with

       A-40, they went to the residence of A-117 where he

       gave them a blue rexin bag and a carton.

vii)   Abu Salem and A-89 then went to the house of A-119

       and gave the carton and the bag to her.     Abu Salem

       told A-119 to keep those weapons safely as they were

       to be used for orchestrating bomb blasts.

22) The abovesaid confessional statements of the co-

accused clearly establish the case against the appellant-

Sanjay Dutt and also corroborate with each other in material

particulars. The following facts emerge from the abovesaid

confessional statements:-

(i)    The appellant had acquired 3 AK-56 rifles and its

ammunitions unauthorisedly.


                                                            41
                                                         Page 41
(ii)   Samir Hingora (A-53), Hanif Kandawala (A-40) and

Salem      (A-139)    provided      the   above      said   arms       and

ammunitions to the appellant at his residence.

(iii) On being frightened after seeing the weapons, the

appellant contacted Hanif Kandawala (A-41) and requested

him to take away the weapons.

(iv) Abu Salem came after few days and the appellant

returned 2 AK-56 rifles and also ammunitions, but retained

one AK-56 rifle and some of its ammunitions.

Confessional Statement of the appellant - Yusuf
Mohsin Nulwalla (A-118)

23) Confessional statement of A-118 under 15 of TADA was

recorded on 27.04.1993 at (14:20 hrs.) and 29.04.1993 at

(16:00 hrs.) by Shri K.L. Bishnoi, the then DCP, Zone-III,

Bombay. The following extracts from the confession of the

appellant are pertinent:-

       "Somewhere around the year, 1970, I came in contact with
       one person by name Azhar Hussain and later on I became
       very friendly with him. He was cousin of Sanjay Dutt
       through him I met Sanjay Dutt and developed friendship
       with him as he was also fond of hunting, fishing and
       staying in camp life. After this myself and Sanjay Dutt
       used to go out for hunting with other friends occasionally. I
       came in contact with Sanjay Dutt's father and other family
       members due to my friendship with Sanjay Dutt and his
       cousin Azhar Hussain. Later on Sanjay Dutt had started


                                                                        42
                                                                   Page 42
taking on drugs and because of this he used to remain out
off from us and started avoiding me. However, my contact
with Sanjay's father and other family members was as it is
and they normally used to ask me to convince Sanjay to
give up the drugs but my convincing and persuasion did
not help him."

"Somewhere in the year 1984, Sanjay has taken me out to
one of his friend by name Tariq Ibrahim's place in Kanpur.
From there his friend had taken us out of his farm in Tarai
and we stayed there for one week. During the stay, I
casually mentioned to Tariq Ibrahim that I am quite fond of
guns but I am not getting arms license. Then he told me
that don't worry my brother is Supdt. of Police at Ratlam
and he will get you arms license as and when you wanted.
Later on, I contacted his brother Asif Ibrahim, who was
Supdt. of Police, Ratlam to give me arms license, he did it
and subsequently he gave me two more arms licenses.
After getting these licenses, I was gifted two guns by Sunil
Dutt out of which one was 12 Bore DBBL gun and another
was 22 Rifle. I purchased the 3 rd weapon, which is single
barrel 375 Magnum Rifle."

"In the meanwhile, I had come in contact with one Kesi
Bapuji Adajenia, who was also in steel fabrication business
and was also an old hunter so we became friends. He also
used to give me sub contracts for steel fabrication. I had
introduced him to Sanjay Dutt also and later on he went
with us for hunting to a place near Surat once."

"Later on Sanjay Dutt became quite popular in Hindi
movies and most of the times he used to remain busy in
his shootings. Many times, I also used to get to the place
for shooting to meet Sanjay Dutt. He had taken me to
Bangalore, Mysore, Ooty, Kodai Kanal and various other
places during this outdoor shooting to these places.
Normally, I used to meet Sanjay two to three times in a
week either at his house or at the place of shootings."

"In the first week of April, he left for Mauritius and I got
busy with my normal business. Then one day, I read in
newspaper the news item that "Sanjay dutt is in possession
of AK-56 Rifles."

In the same day evening, I received a telephone call at my
residential telephone from Sanjay dutty, who was speaking


                                                               43
                                                           Page 43
from Mauritius. He told me that there is something which
is kept in a black coloured bag kept in his room at his
residence (i.e. 58, Pali Hill Bandra, Bombay-50) and I shall
take that bag from his room and destroy the things inside
it immediately otherwise he will be in a great trouble.

Next day morning, I went to Sanjay's residence and took
the black bag from his second floor room and opened it
there only.

When I opened it I found it containing one AK-56 rifle, two
empty magazines and approximately two hundred fifty
rounds of AK-56, one pistol and one loaded magazines of
pistol.

I took out the AK-56 rifle there only and cutted it in pieces
with a hexa, which I had taken along with me then I put all
the cut pieces in the bag and came to my friend Kersi
Bapuji Adajenia's house as he used to keep all the tools of
his steel fabrication in the godown in his house.

I told him the whole story and also that Sanju is in great
trouble, so I required your help in melting and destroying
the cutted pieces of AK-56 rifles. Both of us came to his
godown and I tried to melt the cutted pieces of AK-56 with
the help of cutter, but could not succeed, then my friend
Adajenia melted all the pieces of AK-56 rifle with the help
of gas cutter.

After that I gave the pistol to Kersi Bapuji Adajenia asked
him to burn it also after sometime. I collected the melted
remains of AK-56 Rifle and threw it in the sea at Marine
Drive.

Next day morning, I kept the rounds of AK-56 in two
separate bundles wrapped in papers and threw it in the sea
in front of Oberoi Towers and returned to my home.

Next day in the early morning, I got telephone call from
Sanjay Dutt at my residence No. 3755092 and I informed
him that your work is done and had normal talk with
Sanjay Dutt.

After this, I spoke to Kersi Bapuji Adajenia once and told
him that you burn the pistol also but he told me that you
do no worry about this. I will take care of this. Then I


                                                                44
                                                            Page 44
       stayed at my house and did my normal business till I was
       picked up by the Police."



24) From the abovesaid confession, the following facts

emerge:

i)     Yusuf Mohsin Nulwalla is an old and well known friend

       of Sanjay Dutt.

ii)    In the month of April, when Sanjay Dutt was in

       Mauritius, A-118 was asked to destroy certain objects

       kept at his residence.

iii)   On reaching there, he discovered AK-56 and a pistol

       and ammunition.

iv)    He tried to destroy them.

v)     He took all these objects to a friend of his, namely,

       Kersi Bapuji Adajania (A-124)

vi)    A-124 helped him to destroy the same but he retained

       the pistol with him.

vii)   Upon being reminded about destroying the pistol, A-124

       assured A-118 that he would take care of it.

25) In view of the above, it is seen that the appellant (A-

118), upon instructions, caused destruction of evidence


                                                                  45
                                                              Page 45
related to an offence, which were unauthorisedly possessed

automatic firearms/weapons in a notified area, attracting the

provisions of the Arms Act. The confession of A-118 not only

involves and implicates him, but also implicates Kersi

Adajania (A-124). The confession of A-118 corroborates with

the confession of A-117 as well as A-124.

Confessional Statement of the appellant - Kersi Bapuji
Adajania (A-124)

26) The confessional statement of A-124 under Section 15

of TADA was recorded on 27.04.1993 (15:10 hrs.) and on

30.04.1993 at (16:00 hr.) by Shri K.L. Bishnoi, the then DCP,

Zone-III, Bombay. The following extracts from the confession

of the appellant-Kersi Bapuji Adajenia are relevant:-

     "I am Kersi Bapuji Adajenia, age 63 years. I stay at 605,
     Karim Manzil, JSS Road, Bombay-2 with my family. I
     normally take contracts for steel fabrications and the work
     is done at the sites of the parties only. I normally keep the
     equipments and the tools for steel fabrications at the
     temporary godown in my house and I take these
     equipments to the sites as and when it is required. Due to
     the work load, I have purchased two or three sets of all the
     equipments and tools. Whenever there is a heavy work
     load, I give the excess work on sub-contracts to other
     persons.     Sometimes, I provide my own tools and
     equipments to sub-contractors. Yusuf Mohsin Nullwala was
     my one such sub-contractor. I had come in contact with
     him about ten years back. Since then, I used to give him
     sub-contracts regularly.




                                                                     46
                                                                 Page 46
During the days of my youth, I used to be very fond of
hunting and used to go out for hunting occasionally with
my friends. But I had given up this hobby (hunting) since
1969 onwards. This, Yusuf Nullwalla was also very fond of
hunting and he used to talk a lot about hunting and about
his friend cineactor Sanjay Dutt. He introduced me with
him about seven years back and they had taken me out
once for hunting to a place near Surat, I stayed with
Sanjay, Yusuf and three ­ four their other friends there for
two days and we all came back. After that I met Sanjay
Dutt for two or three times more.

Somewhere around the end of first week of April, 1993,
one day Yusuf Mohsin Nullwalla came to my house around
10.00 a.m. in the morning, he was having a black coloured
Rexin bag hung to his shoulder with him and he said to me
that Sanjay Dutt had telephoned him saying that on AK-56
rifle and other things are lying at this house and police had
come to know about his and he is in great trouble and he
has asked me to collect it and destroy it, so I had gone to
his house and collected it and I have also cut it into pieces
and now I want gas cutting set to completely destroy it,
then he showed me the cut pieces of AK-56 rifle by
opening the bag.

Since I have read about Sanjay Dutt's possession of AK-56
rifle and police being after him in the newspaper about a
day or two earlier. So initially, I told him that I do not went
to get involved in this thing. Then Yusuf said to me that in
case he goes out to some other place for destroying it he is
likely to be caught and requested me to again to give my
gas cutter, so I agreed. Then he went to my godown and
started destroying the cut pieces of AK-56 rifle with the
help of gas cutter.

I also went to the place to see that no mishap takes place.
When I went there I saw that he was fumbling with the gas
cutter and was in no position to destroy the pieces
properly. Then I adjusted the gas and started melting the
pieces of AK-56 rifle myself with the gas cutter. These
parts were having lot of grease on them so lot of smoke
was coming out. Somehow, I managed to destroy all the
parts of AK-56 which he had brought in the bag.

Then he took out one pistol from the bag and wanted me
to destroy that alo but I was quite tired and had some


                                                                  47
                                                              Page 47
       breathing problem due to the smoke which was coming out
       while the pieces of AK-56 reifle were being destroyed. So I
       told him to leave te weapon with me and I will destroy it
       some other time. Then he collected the meted remains of
       AK-56 rifle in a plastic bag, gave the pistol to me for
       destruction and he went away.           After two days, he
       telephoned me and enquired whether I have destroyed
       pistol or not. I told him not to worry about that.

       As I was to go to Calcutta on 9 th April morning so I
       telephoned and called a friend of mine, by name Rusi
       Framrose Mulla to my house. He came to my house next
       day morning and I gave the pistol to him and asked to
       keep it in sae custody as I was going out to Calcutta. I did
       not tell him anything about the history of the pistol and
       told him that I will collect it as soon as I come back from
       Calcutta.



27) From the above confession, the following facts emerge:-

(i)    A-118 was a sub-contractor of A-124. A-124 was also

       acquainted with A-117. All three of them were fond of

       hunting and, in fact, went together for hunting once.

(ii)   A-124 had his workshop in his house where he was

       keeping all his tools including the gas cutter.

(iii) In or around April, A-118 contacted A-124 in order to

       destroy an AK-56 and a pistol belonging to Sanjay Dutt

       (A-117).

(iv) A-124 permitted him to do so.

(v)    A-124 personally destroyed AK-56.

(vi) A-124 kept with himself the pistol.

                                                                      48
                                                                  Page 48
28) The    abovesaid   confession   establishes   the   charge

framed against A-124 that he knowingly destroyed evidence

related to an offence. A-124 was thereafter in unauthorized

possession of the fire-arm.   The abovesaid confession also

corroborates in material particulars, the confession of A-118.

29) The abovesaid confessions of the appellants, viz., A-

117, A-118 and A-124 have been recorded by PW-193, who

has proved that the said confessions were recorded after

following the requirements of the provisions of Section 15 of

TADA.     It is relevant to point out that notwithstanding

vigorous cross-examination of the witness (PW-193), he

stood firmly without being shaken. A long line of arguments

was placed before the Designated Court attacking the

voluntariness of the confession on various occasions, which

had been considered in detail by the trial Court and we fully

agree with the same.

Law relating to Confessions under TADA

30) It is contended on behalf of the appellants that their

confessional statements, and the confessional statements of

the co-accused relied upon by the prosecution against them,


                                                            49
                                                         Page 49
are confessions recorded by a police officer, and it is hence

not proper to base the conviction on the basis of the said

confessions under Section 15 of TADA. Section 15 of TADA

reads as under:


     15. Certain confessions made to police officers to be
     taken into consideration.- (1) Nothwithstanding
     anything in the Code or in the Indian Evidence Act, 1872,
     but subject to the provisions of this section, a confession
     made by a person before a police officer not lower in rank
     than a Superintendent of Police and recorded by such
     police officer in writing or on any mechanical device like
     cassettes, tapes or sound tracks from out of which sounds
     or images can be reproduced, shall be admissible in the
     trial of such person or [co-accused, abettor or conspirator]
     for an offence under this Act or rules made thereunder:

     Provided that co-accused, abettor or conspirator is charged
     and tried in the same case together with the accused.


31) In Jayawant        Dattatray      Suryarao       vs. State       of

Mharashtra, (2001) 10 SCC 109, this Court considered in

detail   the   evidentiary    value    and     admissibility    of    a

confessional statement recorded under Section 15 of TADA

and held that it is settled legal position that a confessional

statement recorded by a police officer is in fact, substantive

evidence, and that the same can be relied upon in the trial of

such person or of a co-accused, an abettor or a conspirator,




                                                                     50
                                                                Page 50
so long as the requirements of Section 15 and of the TADA

rules are complied with. It was observed:

     "60. .... Confessional statement before the police officer
     under Section 15 of the TADA is substantive evidence and
     it can be relied upon in the trial of such person or co-
     accused, abettor or conspirator for an offence punishable
     under the Act or the Rules. The police officer before
     recording the confession has to observe the requirement of
     sub-section (2) of Section 15. Irregularities here and there
     would not make such confessional statement inadmissible
     in evidence. If the legislature in its wisdom has provided
     after considering the situation prevailing in the society that
     such confessional statement can be used as evidence, it
     would not be just, reasonable and prudent to water down
     the scheme of the Act on the assumption that the said
     statement was recorded under duress or was not recorded
     truly by the officer concerned in whom faith is reposed."

It was further held by this Court, that minor irregularities do

not make      the confessional        statement     inadmissible      as

substantive evidence and observed as under:


     "50. In this view of settled legal position, confessional
     statement is admissible in evidence and is substantive
     evidence. It also could be relied upon for connecting the
     co-accused with the crime. Minor irregularity would not
     vitiate its evidentiary value........"

32) In    Ravinder        Singh      @    Bittu     vs.     State     of

Maharashtra,       (2002)     9   SCC     55,    this     Court,   while

considering the reliability of a confession recorded under

Section 15 of TADA against the maker, as well as the co-

accused, held that after State vs. Nalini, Kalpnath Rai vs.


                                                                      51
                                                                   Page 51
CBI, it does not reflect the correct position of law. It was

observed:


     "13. In Kalpnath Rai v. State (through CBI) it was observed
     that the confession made by one accused is not
     substantive evidence against a co-accused. It has only a
     corroborative value. In the present case, we are, however,
     primarily concerned with the confession made by the
     maker i.e. the appellant himself. Besides this confession,
     there is also a confession made by co-accused Nishan
     Singh which too implicates the appellant in commission of
     the offence of the bomb blast in the train. The observations
     made in Kalpnath Rai case were considered in State
     through Supdt. of Police, CBI/SIT v. Nalini, a decision by a
     three-Judge Bench. It was held that the confession
     recorded under Section 15 of the TADA Act is to be
     considered as a substantive piece of evidence not only
     against the maker of it but also against its co-accused. In
     this view, the observations in Kalpnath Rai case do not
     represent the correct position of law.


     17. It is thus well established that a voluntary and truthful
     confessional statement recorded under Section 15 of the
     TADA Act requires no corroboration. Here, we are
     concerned primarily with the confessional statement of the
     maker. The weight to be attached to the truthful and
     voluntary confession made by an accused under Section 15
     of the TADA Act came to be considered again in a recent
     three-Judge Bench decision in Devender Pal Singh v. State
     of NCT of Delhi. It was held in the majority opinion that the
     confessional statement of the accused can be relied upon
     for the purpose of conviction and no further corroboration
     is necessary if it relates to the accused himself.

     18. There can be no doubt that a free and voluntary
     confession deserves the highest credit. It is presumed to
     flow from the highest sense of guilt. Having examined the
     record, we are satisfied that the confession made by the
     appellant is voluntary and truthful and was recorded, as
     already noticed, by due observance of all the safeguards
     provided under Section 15 and the appellant could be
     convicted solely on the basis of his confession."


                                                                     52
                                                                 Page 52
33) In   Mohmed         Amin       vs.    Central      Bureau        of

Investigation, (2008) 15 SCC 49, it was observed:

    "28. In Devender Pal Singh case majority of three-Judge
    Bench made a reference to Gurdeep Singh case and Nalini
    case and held (at SCC pp. 261-62, para 33) that whenever
    an accused challenges the voluntary character of his
    confession recorded under Section 15(1) of the Act, the
    initial burden is on the prosecution to prove that all the
    conditions specified in that section read with Rule 15 of the
    Rules have been complied with and once that is done, it is
    for the accused to show and satisfy the court that the
    confession was not made voluntarily. The Court further
    held that the confession of an accused can be relied upon
    for the purpose of conviction and no further corroboration
    is necessary if it relates to the accused himself. However,
    as a matter of prudence the court may look for some
    corroboration if confession is to be used against a co-
    accused though that will be again within the sphere of
    appraisal of evidence.

    29. In Jameel Ahmed case a two-Judge Bench after
    discussing, considering and analysing several precedents
    on the subject, including Devender Pal Singh case, culled
    out the following propositions: (Jameel Ahmed case, SCC
    pp. 689-90, para 35)

          "(i) If the confessional statement is properly
          recorded, satisfying the mandatory provision of
          Section 15 of the TADA Act and the Rules made
          thereunder, and if the same is found by the court as
          having been made voluntarily and truthfully then the
          said confession is sufficient to base a conviction on
          the maker of the confession.

          (ii) Whether such confession requires corroboration
          or not, is a matter for the court considering such
          confession on facts of each case.

          (iii) In regard to the use of such confession as against
          a co-accused, it has to be held that as a matter of


                                                                     53
                                                                 Page 53
     caution, a general corroboration should be sought for
     but in cases where the court is satisfied that the
     probative value of such confession is such that it
     does not require corroboration then it may base a
     conviction on the basis of such confession of the co-
     accused without corroboration. But this is an
     exception to the general rule of requiring
     corroboration when such confession is to be used
     against a co-accused.

     (iv) The nature of corroboration required both in
     regard to the use of confession against the maker as
     also in regard to the use of the same against a co-
     accused is of a general nature, unless the court
     comes to the conclusion that such corroboration
     should be on material facts also because of the facts
     of a particular case. The degree of corroboration so
     required is that which is necessary for a prudent man
     to believe in the existence of facts mentioned in the
     confessional statement.

     (v) The requirement of sub-rule (5) of Rule 15 of the
     TADA Rules which contemplates a confessional
     statement being sent to the Chief Metropolitan
     Magistrate or the Chief Judicial Magistrate who, in
     turn, will have to send the same to the Designated
     Court is not mandatory and is only directory.
     However, the court considering the case of direct
     transmission of the confessional statement to the
     Designated Court should satisfy itself on facts of
     each case whether such direct transmission of the
     confessional statement in the facts of the case
     creates any doubt as to the genuineness of the said
     confessional statement."

30. In Abdulvahab Abdul Majid Shaikh case this Court
rejected the argument raised on behalf of the appellant
that the confession made by him cannot be treated as
voluntary because the same had been retracted and
observed:

     "9. ... The police officer was empowered to record
     the confession and in law such a confession is made
     admissible under the provisions of the TADA Act. The
     mere fact that A-9 Musakhan @ Babakhan retracted


                                                             54
                                                         Page 54
          subsequently is not a valid ground to reject the
          confession. The crucial question is whether at the
          time when the accused was giving the statement he
          was subjected to coercion, threat or any undue
          influence or was offered any inducement to give any
          confession. There is nothing in the evidence to show
          that there was any coercion, threat or any undue
          influence to the accused to make the confession."

     31. The ratio of the abovenoted judgments is that if a
     person accused of an offence under the Act makes a
     confession before a police officer not below the rank of
     Superintendent of Police and the same is recorded by the
     officer concerned in writing or on any mechanical device
     like cassettes, tapes or sound tracks from out of which
     sounds or images can be reproduced, then such confession
     is admissible in the trial of the maker as also the co-
     accused, abettor or conspirator not only for an offence
     under the Act but also for offence(s) under other
     enactments, provided that the co-accused, abettor or
     conspirator is charged and tried in the same case along
     with the accused and the court is satisfied that
     requirements of the Act and the Rules have been complied
     with. Whether such confession requires corroboration
     depends on the facts of the given case. If the court is
     convinced that the probative value of the confession is
     such that it does not require corroboration then the same
     can be used for convicting the maker and/or the co-
     accused under the Act and/or the other enactments
     without independent corroboration."

After considering the confessions of the accused in the

aforesaid case, it was held as follows:

     "81. Therefore, keeping in view the provisions of Section
     15 of the Act as interpreted by this Court in Gurprit Singh
     case, Nalini case, S.N. Dube case, Lal Singh case,
     Devender Pal Singh case and Jameel Ahmed case, we hold
     that the appellants are guilty of offence under Section 302
     read with Section 120-B IPC and no independent
     corroboration is required for sustaining their conviction."




                                                                   55
                                                               Page 55
34) In Jameel Ahmed & Anr. vs. State of Rajasthan,

(2003) 9 SCC 673, this Court held that Section 30 of the

Evidence Act has no role to play in deciding the admissibility

of confession recorded under Section 15 of TADA. This Court

held that:

     "23. .... it is relevant to note that Section 15 of the TADA
     Act by the use of non obstante clause has made confession
     recorded under Section 15 admissible notwithstanding
     anything contained in the Indian Evidence Act or the Code
     of Criminal Procedure. It also specifically provides that the
     confession so recorded shall be admissible in the trial of a
     co-accused for offence committed and tried in the same
     case together with the accused who makes the confession.
     Apart from the plain language of Section 15 which excludes
     the application of Section 30 of the Evidence Act, this Court
     has in many judgments in specific terms held that Section
     30 of the Evidence Act has no role to play when the court
     considers the confession of an accused made under
     Section 15 of the TADA Act either in regard to himself or in
     regard to his co-accused."

35) In Ahmed Hussein Vali (supra), this Court, while

relying upon Nalini (supra), held that if the confession

made by an accused is voluntary and true, then it is

admissible against the co-accused as a substantive piece of

evidence, and that minor and curable irregularities in the

recording of the confession like omission in obtaining the

certificate of competent office with respect to confession do




                                                                     56
                                                                 Page 56
not affect the admissibility of the said evidence.             It was

further observed:

     "74. ... As far as the admissibility of the confessional
     statement of A-27 is concerned with regard to his co-
     accused in this case, it is not vitiated because of the
     amendment and it is rightly used as a major evidence for
     the trial of his co-accused by the Designated Court. As this
     confessional statement was made complying with all the
     procedural essentials as provided for by the TADA Act and
     the Rules it can be a valid ground for the conviction when
     corroborated with the confessional statement of the other
     four accused, namely, A-1, A-2, A-3 and A-20 respectively
     which have been made prior to the amendment of the
     Act...."



36) In   Mohd.      Farooq      Abdul     Gafur     vs.   State     of

Maharashtra (2010) 14 SCC 641, this Court has upheld the

conviction, inter alia, relying upon the confession of the

accused, as well as the confession of the co-accused in

determining the guilt of the accused.                 The relevant

observations in the judgment are as under:-

     "76. The confessional statements of Accused 5 and 6 are
  also relevant to prove and establish the involvement of
  Accused 1 with the incident. In the said confessional
  statement, Accused 5 had stated that on 2-3-1999, Faheem
  informed Accused 5 on the phone that he would be sending
  two pistols with Accused 1. In fact, Accused 1 came to the
  house of Accused 5 to deliver the said pistols.
     77. It has also come out in the said confessional statement
  (of Accused 5) that out of the two pistols one was not in order
  and so the same was returned to Accused 1 and that on 5-3-
  1999 Accused 5 called Accused 1 who informed him that he
  (Accused 1) has spoken to Chhota Shakeel over the phone
  and informed him about the incident on the previous day.


                                                                    57
                                                                Page 57
     78. Accused 5 has also stated in his confessional
  statement that Accused 1 informed him that Chhota
  Shakeel had asked Accused 1 to pay Accused 5 some money.
  Thereupon, Accused 1 paid Rs 20,000 to Accused 5 at
  Vakola and Accused 5 and 6 together informed Accused 1 that
  they were going to Kolkata.


      81. The High Court disbelieved the aforesaid confessional
  statements of Accused 5 and 6 on the ground that the said
  confessional statements were inadmissible in evidence
  thereby it reversed the findings of the trial court. The High
  Court came to the aforesaid conclusion on the basis that there
  is no evidence to show that any preliminary warning was
  given prior to the recording of the confessional statements
  and that in the absence of proof of the fact that a warning was
  given prior to the recording of the confessional statements,
  the same were inadmissible in evidence. In our considered
  opinion the High Court ignored the fact that there is evidence
  of PW 64, the typist who had deposed that the preliminary
  warning was in fact given which was so recorded on 23-7-
  1999.
      82. Considering the facts and circumstances of the case
  we find no reason not to accept the said statement of PW 64,
  the typist. We also hold that the aforesaid confessional
  statement of the co-accused could be the basis of conviction
  under the provisions of MCOCA.
      83. We, therefore, hold Accused 1 guilty of all the charges
  which were already found to be proved and established by the
  trial court and affirmed by the High Court. So far as the
  sentence is concerned we, however, uphold and confirm the
  sentence passed by the High Court and also restore the
  punishment awarded by the trial court under Section 212 read
  with Section 52-A read with Section 120-B IPC.
      84. So far as the conviction (of Accused 1) under MCOCA is
  concerned, it is quite clear that conviction could be based
  solely on the basis of the confessional statement itself and
  such conviction is also permissible on the basis of the
  confessional statement of the co-accused which could be used
  and relied upon for the purpose of conviction.
      85. In State v. Nalini1 it was held by this Court in the
  context of Section 15 of the Terrorist and Disruptive
  Activities (Prevention) Act, 1987 (now repealed), which is pari
  materia with Section 18 of MCOCA that the evidence of a co-
  accused is admissible as a piece of substantive evidence and
  in view of the non obstante clause, CrPC will not apply."

37) It is clear that a confessional statement duly recorded by

a Police Officer is a substantive piece of evidence and the


                                                                    58
                                                                Page 58
same can be relied upon in the trial of such person or of the

co-accused, abettor or conspirator if the requirements of

Section 15 of TADA, and the rules framed thereunder are

complied with.       The police officer, before recording the

confession, has to observe the requirement of Section 15(2)

of TADA.     A voluntary and truthful confessional statement

recorded     under      Section    15   of     TADA     requires      no

corroboration. However, as a matter of prudence, the court

may look for some corroboration if confession is to be used

against co-accused.       It is made clear that whether such

confession requires corroboration or not is a matter for the

court   to   consider    such     confession   on     the   facts    and

circumstances of each case. If the confession made by an

accused is voluntary and true, it is admissible against co-

accused as a substantive piece of evidence and minor and

curable irregularities in recording of confession, such as

omission in obtaining the certificate of the competent officer

with respect to the confession do not affect the admissibility

of the said evidence.

Retracted Confessions:


                                                                      59
                                                                    Page 59
38) It has been contended that since the confession of the

appellant - Sanjay Dutt (A-117) has been retracted, hence, it

is not trustworthy and it would not be safe to place reliance

upon it.    It is settled law that a voluntary and free

confession, even if later retracted, can be relied upon.

39) In the case of the appellant - Sanjay Dutt (A-117), the

retraction statement was not made at the first available

opportunity. After the recording of his confession, within 10

days, the accused was released on bail by the High Court,

and the accused remained free for a considerable period of

time.   In fact, the judgment delivered by the Constitution

Bench on 09.09.1994 also noted down that the said

confession of the accused remained un-retracted.            The

retractions were made many months after the recording of

the confession.

40) In State of Maharashtra vs. Bharat Chaganlal

Raghani, (2001) 9 SCC 1, this Court while setting aside the

judgment of acquittal recorded by the Designated TADA

Court, observed as under:




                                                             60
                                                           Page 60
     "58. .... There is no denial of the fact that the judicial
     confessions made are usually retracted. Retracted
     confessions are good confessions if held to have been
     made voluntarily and in accordance with the provisions of
     law.... Corroboration of the confessional statement is not a
     rule of law but a rule of prudence. Whether in a given case
     corroboration is sufficient would depend upon the facts and
     circumstances of that case."

41) In Mohd. Amin (supra), this Court considered two

issues, viz., (i) whether the confession of an accused can be

relied   upon   or   used     against    the   co-accused       without

corroboration, and (ii) whether confessional statements can

be relied upon to convict the accused in spite of their

subsequent retraction.       It was held that in so far as the

retraction of confessional statements is concerned, it is clear

that the allegations of torture, coercions and threats etc. by

accused were not raised at the first available opportunity,

and that the retractions were made after almost a year and

were therefore only an afterthought and a result of the

ingenuinty of their advocates.          Accordingly, the retracted

confessions were relied upon. It was observed:-

     "If the confessions of the appellants are scrutinized in the
     light of the above enumerated factors, it becomes clear
     that the allegations regarding coercion, threat, torture, etc.
     after more than one year of recording of confessions are an
     afterthought and products of ingenuity of their advocates.
     The statements made by them under Section 313 of CrPC


                                                                      61
                                                                  Page 61
     were also the result of an afterthought because no tangible
     reason has been put forward by the defence as to why
     Appellants A-4 to A-8 did not retract their confessions when
     they were produced before the Magistrate at Ahmedabad
     and thereafter despite the fact that they had access to
     legal assistance in more than one way. Therefore, we hold
     that the trial court did not commit any error by relying
     upon the confessions of the Appellants A-4 to A-8 and A-10
     and we do not find any valid ground to discard the
     confessions of Appellants A-4 toA-8 and A-10."



42) In Manjit Singh vs. CBI, (2011) 11 SCC 578, this Court,

while   considering      the     question     whether       retracted

confessions of the co-accused could be relied upon to

convict the accused, held that the retracted statements can

be used against the accused as well as the co-accused

provided such statements were truthful and voluntary when

made.       In the said case, two accused persons made

confessional statements and, subsequently, they retracted

from their statements. This Court observed:

     "87. A confessional statement given under Section 15 of
     TADA shall not be discarded merely for the reason that the
     same has been retracted...."

It is pointed out that the confession in the present case was

truthful and voluntary and has been recorded after strictly

following    the   law   and   the   prescribed     procedure,      the

subsequent retraction and denial of such confessional


                                                                    62
                                                                 Page 62
statements in the statement of the accused under Section

313 was only as a result of an afterthought.

Corroboration of Confession:

43) A contention was raised by learned senior counsel for

the appellant that there was no sufficient corroboration of

the confessional statements made by the accused. In reply

to the above, the prosecution relied upon the following

decisions:-

44) In Wariyam Singh vs. State of U.P., (1995) 6 SCC

458, this Court relied upon the confession made by an

accused for convicting him. The confession was alleged to

have been fabricated.   In para 16 of the judgment, it was

held that a part of the confession stood corroborated by the

testimony of a witness, and hence there was no reason to

believe that the confession was fabricated. This Court held

that the allegation of the confession being fabricated was

without any basis and the confession could be taken into

account while recording the conviction.

45) In S.N. Dube vs. N.B. Bhoir & Ors., (2000) 2 SCC

254, this Court in para 34 observed that the confessions of


                                                         63
                                                       Page 63
two accused being substantive evidence are sufficient for

considering them and it also received corroboration from the

confessions of other accused and also general corroboration

as regards the other illegal activities committed by them

from the evidence of other witnesses. On the basis of these

confessional statements, this Court reversed the orders of

acquittal passed by the High Court.

46) In Lal Singh vs. State of Gujarat, (2001) 3 SCC 221,

this Court upheld the conviction of the accused on the basis

of the confessions.     It was held that the Nation has been

`facing great stress and strain because of misguided

militants and cooperation of the militancy' which was

affecting the social security, peace and stability. Since the

knowledge of the details of such terrorist conspiracies

remains with the people directly involved in it and it is not

easy to prove the involvement of all the conspirators, hence,

the confessional statements are reliable pieces of evidence.

This Court, in para 84, observed as under:

     "84. ..... Hence, in case of conspiracy and particularly such
     activities, better evidence than acts and statements
     including that of co-conspirators in pursuance of the
     conspiracy is hardly available. In such cases, when there is


                                                                     64
                                                                 Page 64
     confessional statement it is not necessary for the
     prosecution to establish each and every link as
     confessional statement gets corroboration from the link
     which is proved by the prosecution. In any case, the law
     requires establishment of such a degree of probability that
     a prudent man may on its basis, believe in the existence of
     the facts in issue. For assessing evidence in such cases,
     this Court in Collector of Customs v. D. Bhoormall dealing
     with smuggling activities and the penalty proceedings
     under Section 167 of the Sea Customs Act, 1878 observed
     that many facts relating to illicit business remain in the
     special or peculiar knowledge of the person concerned in it
     and held thus: (SCC pp. 553-55, paras 30-32 and 37)

       "30. ... that the prosecution or the Department is not
       required to prove its case with mathematical precision
       to a demonstrable degree; for, in all human affairs
       absolute certainty is a myth, and--as Prof. Brett
       felicitously puts it -- `all exactness is a fake'. El Dorado
       of absolute proof being unattainable, the law accepts for
       it probability as a working substitute in this work-a-day
       world. The law does not require the prosecution to
       prove the impossible. All that it requires is the
       establishment of such a degree of probability that a
       prudent man may, on its basis, believe in the existence
       of the fact in issue. Thus, legal proof is not necessarily
       perfect proof; often it is nothing more than a prudent
       man's estimate as to the probabilities of the case.
       31. The other cardinal principle having an important
       bearing on the incidence of burden of proof is that
       sufficiency and weight of the evidence is to be
       considered -- to use the words of Lord Mansfied in
       Blatch v. Archar (1774) 1 Cowp 63: 98 ER 969 (Cowp at
       p. 65) `according to the proof which it was in the power
       of one side to prove, and in the power of the other to
       have contradicted'."
47) In State of Maharashtra vs. Bharat Chaganlal

Raghani, (2001) 9 SCC 1, this Court mainly relied on the

confessional statements of the accused which were also

retracted.   It was held that there was sufficient general



                                                                      65
                                                                  Page 65
corroboration of the confessional statements made by the

accused.       The Court found sufficient corroboration in the

testimony of the witnesses and the recoveries pursuant to

the statements given by the accused. It was also held that

once the confessional statements were found to have been

made voluntarily, the test identification parade was not

significant.    It was further held that corroboration is not a

rule of law but a rule of prudence.

48) In Devender Pal Singh vs. State of NCT of Delhi,

(2002) 5 SCC 234, this Court was considering, among other

things, whether       the accused making the confessional

statement can be convicted on the basis of the confession

alone without any corroboration. It was held that once it is

found that the confessional statement is voluntary, it is not

proper to hold that the police had incorporated certain

aspects in the confessional statement which were gathered

during the investigation conducted earlier. It was held that

the so-called retraction by the appellant, was made long

after he was taken into judicial custody.




                                                            66
                                                          Page 66
49) In Ravinder Singh vs. State of Maharashtra, (2002)

9 SCC 55, this Court held that a confession does not require

any corroboration if it relates to the accused himself. It was

further held that there was enough evidence to provide

general corroboration to the confessional statement. It was

also held that minor contradictions in the statements of the

accused were of no consequence once the confessions were

held to be reliable.

50) In Jameel Ahmed vs. State of Rajasthan, (2003) 9

SCC 673, the position of law was summed up by this Court as

follows:

     "35. .....(i) If the confessional statement is properly
     recorded, satisfying the mandatory provision of Section 15
     of the TADA Act and the Rules made thereunder, and if the
     same is found by the court as having been made
     voluntarily and truthfully then the said confession is
     sufficient to base a conviction on the maker of the
     confession.

     (ii) Whether such confession requires corroboration or not,
     is a matter for the court considering such confession on
     facts of each case.

     (iii) In regard to the use of such confession as against a co-
     accused, it has to be held that as a matter of caution, a
     general corroboration should be sought for but in cases
     where the court is satisfied that the probative value of
     such confession is such that it does not require
     corroboration then it may base a conviction on the basis of
     such confession of the co-accused without corroboration.



                                                                      67
                                                                  Page 67
     But this is an exception to the general rule of requiring
     corroboration when such confession is to be used against a
     co-accused.

     (iv) The nature of corroboration required both in regard to
     the use of confession against the maker as also in regard
     to the use of the same against a co-accused is of a general
     nature, unless the court comes to the conclusion that such
     corroboration should be on material facts also because of
     the facts of a particular case. The degree of corroboration
     so required is that which is necessary for a prudent man to
     believe in the existence of facts mentioned in the
     confessional statement.

     (v) The requirement of sub-rule (5) of Rule 15 of the TADA
     Rules which contemplates a confessional statement being
     sent to the Chief Metropolitan Magistrate or the Chief
     Judicial Magistrate who, in turn, will have to send the same
     to the Designated Court is not mandatory and is only
     directory. However, the court considering the case of direct
     transmission of the confessional statement to the
     Designated Court should satisfy itself on facts of each case
     whether such direct transmission of the confessional
     statement in the facts of the case creates any doubt as to
     the genuineness of the said confessional statement."

51) In Nazir Khan vs. State of Delhi, (2003) 8 SCC 461,

this court held that the confessional statements made by the

co-accused can be used to convict a person, and that it is

only as a rule of prudence that the Court should look for

corroboration elsewhere. It was held that:

     "27. Applying the principles which can be culled out from
     the principles set out above to the factual scenario, the
     inevitable conclusion is that the trial court was justified in
     its conclusions by holding the accused-appellants guilty.
     When an accused is a participant in a big game planned,
     he cannot take the advantage of being ignorant about the
     finer details applied to give effect to the conspiracy



                                                                      68
                                                                  Page 68
     hatched, for example, A-7 is stated to be ignorant of the
     conspiracy and the kidnapping. But the factual scenario
     described by the co-accused in the statements recorded
     under Section 15 of the TADA Act shows his deep
     involvement in the meticulous planning done by Umar
     Sheikh. He organized all the activities for making
     arrangements for the accused and other terrorists.

52) In Sukhwant Singh vs. State, (2003) 8 SCC 90, this

Court upheld the conviction solely on the basis of the

confession of the co-accused, without any corroboration, that

too in a situation where the accused himself had not

confessed.    The judgment in the case of Jameel Ahmed

(supra) was relied upon. It was held:

     "3. In the present case we are aware of the fact that the
     appellant has not made any confessional statement nor is
     there any corroboration of the confessional statement of
     the co-accused implicating this appellant from any other
     independent source but then we have held in the above-
     reported case that if the confessional statement of a co-
     accused is acceptable to the court even without
     corroboration then a confession of a co-accused can be the
     basis of conviction of another accused so implicated in that
     confession. Therefore the fact that the appellant herein has
     not confessed or the confessional statements made
     implicating him by A-1 and A-2 are not independently
     corroborated, will not be a ground to reject the evidence
     produced by the prosecution in the form of confessional
     statement of co-accused provided the confession relied
     against the appellant is acceptable to the court."

53) In Mohammed Amin (supra), this Court convicted the

accused on the basis of their confessions and confessional

statements of co-accused.         It was held that there is no


                                                                    69
                                                                Page 69
requirement of corroboration if the confessions are proved to

be made voluntarily, and the Rules applicable have been

complied with. The following observations are pertinent:

     "31. The ratio of the abovenoted judgments is that if a
     person accused of an offence under the Act makes a
     confession before a police officer not below the rank of
     Superintendent of Police and the same is recorded by the
     officer concerned in writing or on any mechanical device
     like cassettes, tapes or sound tracks from out of which
     sounds or images can be reproduced, then such confession
     is admissible in the trial of the maker as also the co-
     accused, abettor or conspirator not only for an offence
     under the Act but also for offence(s) under other
     enactments, provided that the co-accused, abettor or
     conspirator is charged and tried in the same case along
     with the accused and the court is satisfied that
     requirements of the Act and the Rules have been complied
     with. Whether such confession requires corroboration
     depends on the facts of the given case. If the court is
     convinced that the probative value of the confession is
     such that it does not require corroboration then the same
     can be used for convicting the maker and/or the co-
     accused under the Act and/or the other enactments
     without independent corroboration."


54) In Mohd. Ayub Dar vs. State of Jammu and

Kashmir, (2010) 9 SCC 312, it was held that even though

the guidelines in Kartar Singh (supra), have not been

strictly followed, the confession of the accused recorded is

admissible against him and can be relied upon solely to

convict him.   The following observations of this Court are

pertinent:


                                                                 70
                                                             Page 70
"59. It would, therefore, be clear, as rightly contended by
Shri Rawal that merely because the guidelines in Kartar
Singh v. State of Punjab were not fully followed, that by
itself does not wipe out the confession recorded. We have
already given our reasons for holding that the confession
was recorded by A.K. Suri (PW 2) taking full care and
cautions which were required to be observed while
recording the confession.

60. In Ravinder Singh v. State of Maharashtra it has been
observed in para 19 that if the confession made by the
accused is voluntary and truthful and relates to the
accused himself, then no further corroboration is necessary
and a conviction of the accused can be solely based on it.
It has also been observed that such confessional statement
is admissible as a substantive piece of evidence. It was
further observed that the said confession need not be
tested for the contradictions to be found in the confession
of the co-accused. It is for that reason that even if the
other oral evidence goes counter to the statements made
in the confession, one's confession can be found to be
voluntary and reliable and it can become the basis of the
conviction.

61. In this case, there is ample corroboration to the
confession in the oral evidence as well as the documentary
evidence in shape of a chit, which is referred to in the said
confession. There is a clear reference that the Personal
Assistant, who was a non-Kashmiri and kept a beard, had
sent a slip inside. Ultimately, that slip was found by the
police, which corroborates the contents in the confession.
In our opinion, that is a sufficient corroboration to the
confession.

64. All these cases suggest that the only test which the
court has to apply is whether the confession was voluntary
and free of coercion, threat or inducement and whether
sufficient caution is taken by the police officer who
recorded the confession. Once the confession passes that
test, it can become the basis of the conviction. We are
completely convinced that the confession in this case was
free from all the aforementioned defects and was
voluntary."




                                                                71
                                                            Page 71
55) In Manjit Singh vs. CBI, (2011) 11 SCC 578, the

following     observations     of     this   Court     regarding      the

admissibility of confessional statements are pertinent:-

     91. In Ravinder Singh case, the Court relying on State v.
  Nalini, S.N. Dube v. N.B. Bhoir and Devender Pal Singh v.
  State (NCT of Delhi), held that: (Ravinder Singh case, SCC p.
  59, para 17)
         "17. It is thus well established that a voluntary and
     truthful confessional statement recorded under Section 15
     of the TADA Act requires no corroboration."

This apposite observation by the Bench of two learned

Judges   in    Ravinder       Singh    case      (supra)     should   be

considered with measured caution and we believe, taking

into account the ground realities that it would be prudent to

examine the authenticity of a confession on a case-by-case

basis.

56) The       corroboration    as     required    in   the   abovesaid

judgment can also be found in the case at hand, both in the

nature of substantive evidence in the form of the confessions

of the co-accused, as well as in the oral testimony of

witnesses, including the eye witnesses to the incident who

have identified the appellant-Sanjay Dutt (A-117), as well as

the co-accused persons, viz., A-41 and A-53.



                                                                      72
                                                                   Page 72
57) Apart from the evidence contemporaneous to the arrest

of the abovesaid three accused and the recovery made from

A-124 and subsequent recovery at the instance of A-124

from A-120, are also relevant in respect of all the three

abovenamed appellants.

58) It is clear that the sequence of events after the arrest of

Sanjay Dutt till the recovery of pistol from A-120, forms part

of an unbroken chain inseparably connected to each other.

No foul play can be assumed in view of the fact that the

events happened in quick succession one after the other,

lending credibility and truthfulness to the whole episode.

The role and the part played by A-118 and A-124 is also clear

from the evidence relied upon by the prosecution in respect

of A-117, which corroborates with each other in material

particulars and is thus a substantive piece of evidence.

Deposition of Prosecution Witnesses:

59) Apart from the aforesaid evidence, the involvement and

the role of the appellant in the conspiracy as stated above is

disclosed by the deposition of various prosecution witnesses

which are as follows:


                                                             73
                                                           Page 73
Deposition of Shri K.L. Bishnoi (PW-193)


      PW-193, the then DCP, deposed as under with regard to

the confession made by A-117:-

(i)     On   26.04.1993,   at   about   3:15    p.m.,   A-117      was

        produced by A.P.I. Shri Sanjay Kadam before him in the

        room given by Senior P.I. Shri Kumbhar, in the office of

        DCB, CID, Crime Branch, for recording of his confession

        and he took the proceedings by asking A-117 certain

        questions in English and during the same, amongst

        other replies given by him, he told him that he wanted

        to make a statement.

(ii)    During the said proceedings, amongst other, he had

        explained to A-117, that he was not bound to make a

        confession and the same can be used against him in

        evidence and when A-117 still intended to give the

        confession,   PW-193    gave    him    48   hours   time    to

        reconsider his decision.

(iii) Exhibit 868 being the true and correct record of the

        said proceedings made by him with the help of a typist

        in his presence which was read over to A-117 and

                                                                    74
                                                                Page 74
      confirmed by him as of being correctly recorded, and

      bearing the signatures of A-117 as well as of PW-193.

(iv) On 28.04.1993, at about 16:00 hours, A-117 was again

      produced before P.W. 193 in the chamber of Senior P.I.

      DCB,CID, in the office of Crime Branch, C.P. office by

      A.P.I. Shri S.A. Khere for further proceedings, and he

      followed all the procedures mentioned above and

      recorded the same which is Exh. 868-A.

(v)   PW-193 deposed that A-117 confessed that he already

      had three licensed firearms.

(vi) He developed acquaintance with Anees Ibrahim-brother

      of Dawood Ibrahim during a film-shooting

(vii) He expressed his desire to have an automatic fire-arm

      to Samir Hingora (A-53) and Hanif Kandawala (A-40).

(viii) Sanjay Dutt was already acquainted with Salem and he

      had assured him of delivery of the weapons.

(ix) With the help of above named persons, 3 AK-56 Rifles

      and 250 rounds were delivered to A-117.




                                                              75
                                                        Page 75
(x)     After   2   days,    he   returned     2    AK-56   rifles    and

        ammunitions,        and   retained   1     AK-56    and      some

        ammunition.

(xi) A-117 kept the same in a handbag and placed it in the

        private hall on the 2nd floor of his bungalow.

(xii) On hearing the news of the arrest of co-accused

        persons,    viz.,    Samir   Hingora       (A-53)   and      Hanif

        Kandawala (A-40), A-117 contacted Yusuf Nulwalla over

        telephone and asked him that something is lying in a

        black coloured bag kept in the hall on the second floor

        of his house, and it should be taken away immediately

        and to destroy the objects completely.

      (v)   He was picked up by the police as soon as he landed

            at Bombay.

Deposition of PW-193 with regard to the confession
made by A-118:-


(i)     A-118 is an old and well known friend of Sanjay Dutt (A-

        117).




                                                                       76
                                                                     Page 76
(ii)   In the month of April, when Sanjay Dutt was in

       Mauritius, A-118 was asked to destroy certain objects

       kept at his residence.

(iii) On reaching there, he discovered one AK-56 rifle, two

       empty magazines, approximately 250 rounds of AK-56,

       one pistol and one loaded magazine.

(iv) A-118 cutted the rifle into pieces with the help of a

       hexa-cutting machine.

(v)    A-118 took all those things to Kersi Adajania (A-124),

       who was having a gas-cutter, in order to melt the same.

(vi) A-118 caused disappearance of evidence of an offence

       which were also unauthorisedly possessed automatic

       firearms/weapons.

(vii) Next day, he informed A-117 about the completion of

       the work assigned to him.

Deposition of PW-193 with regard to the confession
made by A-124:-


(i)    A-124 was very well acquainted with A-117 and A-118.

(ii)   A-124 had his workshop in his house where he kept all

       his tools including the gas cutter.


                                                           77
                                                         Page 77
(iii) A-118 contacted A-124 and said that he wanted to

       destroy AK-56 and a pistol belonging to Sanjay Dutt (A-

       117).

(iv) A-124 permitted him to do so.

(v)    A-124 personally destroyed AK-56.

(vi) A-124 kept with himself the pistol.

Deposition of Pandharinath H. Shinde (PW-218)

       The deposition reveals as under:

(i)    On 11.01.1993, he was posted on guard duty at the

       bunglow of Sunil Dutt at Pali Hill, Khar, Bombay.

(ii)   He had worked as a Protection Guard at the said

       bunglow from 11.01.1993 to 19.01.1993. He was on

       duty during that period for 24 hours.

(iii) On the said day, at about 7:30 a.m., one white maruti

       van came to gate No. 2 of the said bunglow and three

       persons were sitting in the said van.

(iv) He identified Ibrahim Musa Chauhan (A-41) and Samir

       Hingora (A-53) as the persons who were sitting at the

       back of the said van.

Deposition of Manohar Vasudev Shirodkar (PW-219)


                                                             78
                                                           Page 78
       At the relevant time, PW-219 was Senior Inspector of

Police at Khar Police Station, Bombay.          His deposition

establishes that PW-218 was posted on Protection Duty at

the bunglow of Sunil Dutt.

Deposition of Suresh S. Walishetty (PW-680)

       PW-680, the Investigating officer revealed as under:-


(i)    He deposed that Sanjay Dutt (A-117) expressed his

       desire to make a voluntary statement. Thereafter, he

       instructed his staff to make arrangement of two

       persons to act as panch witnesses. The said persons

       were Shri Tavade and Shri Sawant (PW 211).


(ii)   PW-680 instructed Shri Rajaram Ramchandra Joshi (PW-

       475), Assistant Inspector of Police to record the

       panchnama.


(iii) Sanjay Dutt made a voluntary statement in Hindi

       Language, which was recorded in the memorandum

       Panchnama Exhibit 1068 by PW-475.


(iv) As per the said disclosure, Sanjay Dutt led the Police

       party to the House of Yusuf Nulwala (A-118).

                                                               79
                                                          Page 79
(v)   Yusuf Nulwala was produced by the officers of Dongri

      police station after about half an hour after their return

      to the office of DCB-CID.


(vi) Yusuf Nulwala made a disclosure statement and led the

      police party to the house of Kersi Adajania (A-124).


(vii) Kersi Adajania made a disclosure statement and

      produced a spring and a rod which was seized by the

      police and also led the Police party to A-125.


(viii) A-125 made a disclosure statement and led the police

      party to the House of A-120 wherefrom a pistol and its

      rounds were recovered.


Deposition of Rajaram Ramchandra Joshi (PW-475)

      At the relevant time, PW-475 was working as the

Assistant   Inspector   of   Police.   In   his   deposition,   he

corroborates with the deposition of PW-680 that he assisted

him in the investigation relating to Sanjay Dutt and others.




Deposition of Shashikant Rajaram Sawant (PW-211)

                                                                80
                                                             Page 80
      PW-211 acted as an independent witness and proved the

disclosure statements made by the appellants pointing out

the recoveries therefrom. The deposition reveals as under:

(i)     At about 3:00 p.m., he alongwith Tawade was asked by

        3-4 havaldars to act as panch witnesses to which they

        agreed.


(ii)    They were taken to the office of the Crime Branch at

        Crawford Market.


(iii) He saw Sanjay Dutt present in the said police station.


(iv) He was asked to hear what Sanjay Dutt had to say.


(v)     He refers to the disclosure made by Sanjay Dutt to the

        police.


(vi) Panchnama was drawn by Joshi Saheb (PW-475).


(vii) Sanjay Dutt led the police party to the house of Yusuf

        Nulwalla (A-118).


(viii) He proved the Panchnama Exhibit 1068-A.




                                                               81
                                                         Page 81
(ix) Yusuf Nulwala was produced by the two constables who

      was then arrested by Wallishetty (PW-680).


(x)   The witness proved the statement made by Yusuf

      Nulwala to the Police.


(xi) Yusuf Nulwala lead the police party to the house of A-

      124 who was then arrested by the Police.


(xii) Kersi made a disclosure statement.


(xiii) The witness proved the Panchnama Exhibit 1068-C.


(xiv) He also identified the articles, viz., the Rod and the

      spring produced by A-124.


(xv) Kersi led the police party to Rusi Mulla (A-125).


(xvi) Rusi Mulla led the Police party to Ajay Marwah (A-120).


(xvii)Ajay Marwah produced the bag containing a pistol

      loaded with Magazine.


(xix) The witness also proved the panchnama Exh. 1068-E.




                                                           82
                                                         Page 82
Deposition of Gangaram Bajoji (PW-265)

       PW-265 acted as an independent witness and proved

Exhibit Nos. 1100, 1100A, 1101 and 1101 A. In his

deposition, he reveals as under:-

(i)    The witness was approached on 1.5.1993 by Police

       Havaldars to act as Panch witnesses to which he

       agreed. He went to the Crime Branc-CID, Crawford

       market.


(ii)   He met PW 680 and PW 475 there.


(iii) Kersi Adajenia made a statement.


(iv) Pursuant     to   the   said   statement,   Kersi   Adajenia

       produced Gas Cylinder, Gas Cutter, from his workplace-

       Factory.


(v)    Police seized those articles vide seizure memo Exhibit

       1100A.


(vi) Upon his return to the Police station, Yusuf Nulwala

       made a statement before him, PW 680 and PW 475.


(vii) A panchnama was drawn as Exhibit 1101.


                                                              83
                                                            Page 83
(viii) The said accused led the Police party to marine drive

        and asked the jeep to be halted in front of Shanti

        Niketan building.


(ix) The accused then took the police party to the stoney

        area and took out a plastic bag concealed in the gap of

        one of the stones. He handed over the same to PW 680.

        The said bag was found to be containing 53 bullets and

        he also proved Exhibit 1101A.


Deposition of Karmegam Alagappan (PW-472)

      The deposition of PW 472 reveals as under:

(i)     The call records of Telephone No. 6462786 were

        provided by him.


(ii)    Out of 7-8 numbers provided by the Investigating

        officer, only 6462786 has STD and ISD calls.


(iii) X 572 contains the printout of call records provided by

        him.


(iv) After the objections were decided, the said call records

        were marked as Exhibit 2532 collectively.



                                                            84
                                                         Page 84
60) The entire sequence of abovesaid events have been

proved Shri Suresh S. Walishetty (PW-680)-the Investigating

Officer and Sh. Rajaram Ramchandra Joshi (PW-475)-the

Assistant Inspector of Police.      The above said incident has

also been witnessed and proved by an independent witness,

viz. PW-211. Further, the credibility of the witness has not

been shaken despite vigorous cross examination.

Section 27 of the Indian Evidence Act:

61) This Court, while dealing with the law relating to

Section 27 of the Indian Evidence Act observed about the

possibility and plausibility of such recoveries as followed in

State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC

600 which are as under:-


      "142. There is one more point which we would like to
  discuss i.e. whether pointing out a material object by the
  accused furnishing the information is a necessary
  concomitant of Section 27. We think that the answer should
  be in the negative. Though in most of the cases the person
  who makes the disclosure himself leads the police officer to
  the place where an object is concealed and points out the
  same to him, however, it is not essential that there should be
  such pointing out in order to make the information admissible
  under Section 27. It could very well be that on the basis of
  information furnished by the accused, the investigating officer
  may go to the spot in the company of other witnesses and
  recover the material object. By doing so, the investigating
  officer will be discovering a fact viz. the concealment of an



                                                                    85
                                                                Page 85
incriminating article and the knowledge of the accused
furnishing the information about it. In other words, where the
information furnished by the person in custody is verified by
the police officer by going to the spot mentioned by the
informant and finds it to be correct, that amounts to discovery
of fact within the meaning of Section 27. Of course, it is
subject to the rider that the information so furnished was the
immediate and proximate cause of discovery. If the police
officer chooses not to take the informant accused to the spot,
it will have no bearing on the point of admissibility under
Section 27, though it may be one of the aspects that goes into
evaluation of that particular piece of evidence.

    145. Before parting with the discussion on the subject of
confessions under Section 27, we may briefly refer to the
legal position as regards joint disclosures. This point assumes
relevance in the context of such disclosures made by the first
two accused viz. Afzal and Shaukat. The admissibility of
information said to have been furnished by both of them
leading to the discovery of the hideouts of the deceased
terrorists and the recovery of a laptop computer, a mobile
phone and cash of Rs 10 lakhs from the truck in which they
were found at Srinagar is in issue. Learned Senior Counsel Mr
Shanti Bhushan and Mr Sushil Kumar appearing for the
accused contend, as was contended before the High Court,
that the disclosure and pointing out attributed to both cannot
fall within the ken of Section 27, whereas it is the contention
of Mr Gopal Subramanium that there is no taboo against the
admission of such information as incriminating evidence
against both the accused informants. Some of the High Courts
have taken the view that the wording "a person" excludes the
applicability of the section to more than one person. But, that
is too narrow a view to be taken. Joint disclosures, to be more
accurate, simultaneous disclosures, per se, are not
inadmissible under Section 27. "A person accused" need not
necessarily be a single person, but it could be plurality of the
accused. It seems to us that the real reason for not acting
upon the joint disclosures by taking resort to Section 27 is the
inherent difficulty in placing reliance on such information
supposed to have emerged from the mouths of two or more
accused at a time. In fact, joint or simultaneous disclosure is a
myth, because two or more accused persons would not have
uttered informatory words in a chorus. At best, one person
would have made the statement orally and the other person
would have stated so substantially in similar terms a few
seconds or minutes later, or the second person would have


                                                                    86
                                                                Page 86
  given unequivocal nod to what has been said by the first
  person. Or, two persons in custody may be interrogated
  separately and simultaneously and both of them may furnish
  similar information leading to the discovery of fact. Or, in rare
  cases, both the accused may reduce the information into
  writing and hand over the written notes to the police officer at
  the same time. We do not think that such disclosures by two
  or more persons in police custody go out of the purview of
  Section 27 altogether. If information is given one after the
  other without any break, almost simultaneously, and if such
  information is followed up by pointing out the material thing
  by both of them, we find no good reason to eschew such
  evidence from the regime of Section 27. However, there may
  be practical difficulties in placing reliance on such evidence. It
  may be difficult for the witness (generally the police officer),
  to depose which accused spoke what words and in what
  sequence. In other words, the deposition in regard to the
  information given by the two accused may be exposed to
  criticism from the standpoint of credibility and its nexus with
  discovery. Admissibility and credibility are two distinct
  aspects, as pointed out by Mr Gopal Subramanium. Whether
  and to what extent such a simultaneous disclosure could be
  relied upon by the Court is really a matter of evaluation of
  evidence......"

  It was contended that under Section 27 of the Evidence

Act, only recovery of object is permissible and identification

of the person instead of the place where the article is to be

found cannot attract the provisions of Section 27.

62) The very same situation has been considered by this

Court   in    Jaffar    Hussain        Dastagir       vs.   State      of

Maharashtra, (1969) 2 SCC 872, 875 wherein the following

observations are pertinent:-




                                                                       87
                                                                   Page 87
"4.....In order that the section may apply the prosecution
must establish that the information given by the appellant led
to the discovery of some fact deposed to by him. It is evident
that the discovery must be of some fact which the police had
not previously learnt from other sources and that the
knowledge of the fact was first derived from information given
by the accused. If the police had no information before of the
complicity of Accused 3 with the crime and had no idea as to
whether the diamonds would be found with him and the
appellant had made a statement to the police that he knew
where the diamonds were and would lead them to the person
who had them, it can be said that the discovery of the
diamonds with the third accused was a fact deposed to by the
appellant and admissible in evidence under Section 27.
However, if it be shown that the police already knew that
Accused 3 had got the diamonds but did not know where the
said accused was to be found, it cannot be said that the
information given by the appellant that Accused 3 had the
diamonds and could be pointed out in a large crowd at the
waiting hall led to the discovery of a fact proving his
complicity with any crime within the meaning of Section 27.
The fact deposed to by him would at best lead to the
discovery of the whereabouts of Accused 3.
   5. Under Section 25 of the Evidence Act no confession
made by an accused to a police officer can be admitted in
evidence against him. An exception to this is however
provided by Section 26 which makes a confessional statement
made before a Magistrate admissible in evidence against an
accused notwithstanding the fact that he was in the custody
of the police when he made the incriminating statement.
Section 27 is a proviso to Section 26 and makes admissible so
much of the statement of the accused which leads to the
discovery of a fact deposed to by him and connected with the
crime, irrespective of the question whether it is confessional
or otherwise. The essential ingredient of the section is that
the information given by the accused must lead to the
discovery of the fact which is the direct outcome of such
information. Secondly, only such portion of the information
given as is distinctly connected with the said recovery is
admissible against the accused. Thirdly, the discovery of the
fact must relate to the commission of some offence. The
embargo on statements of the accused before the police will
not apply if all the above conditions are fulfilled. If an accused
charged with a theft of articles or receiving stolen articles,
within the meaning of Section 411 IPC states to the police, "I
will show you the articles at the place where I have kept


                                                                     88
                                                                 Page 88
  them" and the articles are actually found there, there can be
  no doubt that the information given by him led to the
  discovery of a fact i.e. keeping of the articles by the accused
  at the place mentioned. The discovery of the fact deposed to
  in such a case is not the discovery of the articles but the
  discovery of the fact that the articles were kept by the
  accused at a particular place. In principle there is no
  difference between the above statement and that made by
  the appellant in this case which in effect is that "I will show
  you the person to whom I have given the diamonds exceeding
  200 in number". The only difference between the two
  statements is that a "named person" is substituted for "the
  place" where the article is kept. In neither case are the
  articles or the diamonds the fact discovered."



Recoveries:

63) The rod and the spring recovered from the possession

of A-124 were sent to FSL for examination.              The experts

opined that the said articles correspond to that of an AK-56

type rifle, but did not correspond to similar components used

in AK-47 rifle.

64) The independent witness was given a tape to measure

the rod, and the measurement came to be 15 inches which

is not one and a half feet, as was recorded and deposed to

by the prosecution witness.        A contention was also raised

with regard to the removal of the seal from the packet. The

requisition and the report show that the seal on the packet

containing the object was perfect and had not been


                                                                    89
                                                                Page 89
tempered with. In that event, the said anomaly may not be

of much consequence.

65) The prosecution has also established through one

independent witness PW-265 that A-118 and A-124 further

made statement to the police and pursuant whereof the gas

cylinder used in destroying AK-56 was recovered at the

instance of A-124 and some of the ammunition of AK-56

were recovered at the instance of A-118.

66) The relevant confession of A-53, wherein he stated that

when they reached the house of Sanjay Dutt, he was

speaking to Anees over phone, the said call details along

with a certified copy of the relevant directory which contains

the telephone number of Anees Ibrahim in Dubai has been

filed. The call record was pertaining to Tel. No. 6462786.

Exh. No. X-572 shows that the said number belongs to

Sanjay Dutt. The United Arab Emirates' Telephone Directory

which is also exhibited indicates the number as 448585 in

the name of Anees Shaikh Ibrahim.

67) It was contended on behalf of Sanjay Dutt that since he

has been acquitted of all the charges, the confession ought


                                                           90
                                                        Page 90
not to have been relied upon for convicting him for offences

other than TADA offences.           The answer to the said

contention lies in reading together the two judgments of the

Constitution Bench of this Court.        One is in the case of

Sanjay Dutt (II) (supra) wherein this Court considered the

entire case of the appellant-Sanjay Dutt at that stage and

opined that although the offence is complete by the

unauthorized possession of a weapon in the notified area, a

defence would be available to the accused to be taken at the

time of the trial and the Trial Court can consider the same by

virtue of Section 12 of TADA. The other case is of Prakash

Kumar (supra), wherein this Court held that even if the

accused was to be acquitted of the TADA charges, still in a

joint trial, the confessions recorded under Section 15 of

TADA can be relied upon in respect of the said accused. It

was further held that the stage at which the trial can be

separated   is   at   the   stage   of   cognizance   and    not

subsequently.

68) The following observation of this Court in the abovesaid

judgment is as under:-


                                                              91
                                                            Page 91
   In Sanjay Dutt (Supra), this Court held:-


    "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 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.
    28. The non-obstante clause in Section 5 of the TADA Act
shows that within a notified area, the general law relating to
unauthorised possession of any of the specified arms and
ammunition etc. is superseded by the special enactment for
that area, namely, the TADA Act. If however the third
ingredient to constitute the offence under Section 5 of the
TADA Act is negatived by the accused while the first two
ingredients are proved to make out an offence punishable
under the general law, namely, the Arms Act, then the
Designated Court is empowered to deal with the situation in
accordance with Section 12 of the TADA Act. Section 12 itself
shows that Parliament envisaged a situation in which a person
tried under the TADA Act of any offence may ultimately be
found to have committed any other offence punishable under
any other law and in that situation, the Designated Court is
empowered to punish the accused for the offence under such
other law. The offence under Section 5 of the TADA Act is
graver and visited with more severe punishment as compared
to the corresponding offence under the general law. This is
because of the greater propensity of misuse of such arms and


                                                                    92
                                                                Page 92
  ammunition etc. for a terrorist or disruptive act within a
  notified area. If the assumed propensity of such use is
  negatived by the accused, the offence gets reduced to one
  under the general law and is punishable only thereunder. In
  such a situation, the accused is punished in the same manner
  as any other person found to be in unauthorised possession of
  any such arms and ammunition etc. outside a notified area.
  The presumption in law is of the greater and natural danger
  arising from its unauthorised possession within a notified area
  more prone to terrorist or disruptive activities.


      37. It is a settled rule of criminal jurisprudence that the
  burden on an accused of proving a fact for rebutting a
  statutory presumption in his defence is not as heavy as on the
  prosecution to prove its case beyond reasonable doubt but
  the lighter burden of proving the greater probability. Thus, the
  burden on the accused of rebutting the statutory presumption
  which arises against him under Section 5 of the TADA Act on
  proof by the prosecution that the accused was in
  unauthorised possession of any of the specified arms and
  ammunition etc. within a notified area, is of greater
  probability. When the prosecution has proved these facts, it
  has to do nothing more and conviction under Section 5 of the
  TADA Act must follow unless the accused rebuts the statutory
  presumption by proving that any such arms and ammunition
  etc. was neither used nor was meant to be used for a terrorist
  or disruptive activity. No further nexus of his unauthorised
  possession of the same with any specific terrorist or disruptive
  activity is required to be proved by the prosecution for
  proving the offence under Section 5 of the TADA Act. The
  nexus is implicit, unless rebutted, from the fact of
  unauthorised conscious possession of any such weapon etc.
  within a notified area and the inherent lethal and hazardous
  nature and potential of the same. The observations of Sahai, J.
  alone in Kartar Singh1 cannot be read to enlarge the burden
  on the prosecution to prove the implicit nexus by evidence
  aliunde, or to require the prosecution to prove anything more
  than what we have indicated."

69) Similary, in Prakash Kumar (supra), this Court held

as under:-




                                                                     93
                                                                 Page 93
   "18. The questions posed before us for the termination are
no more res integra. In our view, the same have been set at
rest by the three-Judge Bench decision rendered in Nalini. The
rigours of Sections 12 and 15 were considered in Nalini case1
and a finding rendered in paras 80, 81 and 82 (SCC p. 304) as
under:
       "80. Section 12 of TADA enables the Designated Court
   to jointly try, at the same trial, any offence under TADA
   together with any other offence `with which the accused
   may be charged' as per the Code of Criminal Procedure.
   Sub-section (2) thereof empowers the Designated Court to
   convict the accused, in such a trial, of any offence `under
   any other law' if it is found by such Designated Court in
   such trial that the accused is found guilty of such offence.
   If the accused is acquitted of the offences under TADA in
   such a trial, but convicted of the offence under any other
   law, it does not mean that there was only a trial for such
   other offence under any other law.
       81. Section 15 of TADA enables the confessional
   statement of an accused made to a police officer specified
   therein to become admissible `in the trial of such a person'.
   It means, if there was a trial of any offence under TADA
   together with any other offence under any other law, the
   admissibility of the confessional statement would continue
   to hold good even if the accused is acquitted under TADA
   offences.
       82. The aforesaid implications of Section 12 vis-à-vis
   Section 15 of TADA have not been adverted to in Bilal
   Ahmed case2. Hence the observations therein (at SCC p.
   434, para 5) that
      `while dealing with the offences of which the appellant
      was convicted there is no question of looking into the
      confessional statement attributed to him, much less
      relying on it since he was acquitted of all offences under
      TADA'
   cannot be followed by us. The correct position is that the
   confessional statement duly recorded under Section 15 of
   TADA would continue to remain admissible as for the other
   offences under any other law which too were tried along
   with TADA offences, no matter that the accused was
   acquitted of offences under TADA in that trial."
      (emphasis supplied)




                                                                   94
                                                                Page 94
   We are in respectful agreement with the findings recorded
   by a three-Judge Bench in Nalini case.

   33. Section 12 empowers the Designated Court to try any
other offence with which the accused may be charged under
the Code at the same trial provided the offence is connected
with such other offence. This section has been brought to the
statute-book in consonance with the preamble of the Act,
which says "for the prevention of, and for coping with,
terrorist and disruptive activities and for matters connected
therewith or incidental thereto". (emphasis supplied)
Therefore, Section 12 is introduced to take care of the matters
connected with or incidental to terrorist activities.
   34. A conjoint reading of the two sections as a whole
leaves no manner of doubt that one provision is to be
construed with reference to the other provision and vice versa
so as to make the provision consistent with the object sought
to be achieved. The scheme and object of the Act being the
admissibility of the confession recorded under Section 15 of
the Act in the trial of a person or co-accused, abettor or
conspirator charged and tried in the same case together with
the accused, as provided under Section 12 of the Act.
   35. Counsel contends that Section 12 is only an enabling
provision empowering the Designated Court to try and convict
for the offences committed under any other law along with
the offences under TADA so as to avoid multiplicity of the trial
and does not empower the Designated Court to try and
convict for other offences, even if the offences under TADA
are not made out. Does it mean: "Thou shalt have teeth, but
not bite?" We think not. When the courts have the power to
try, it is implicit in it that they have the power to convict also.
In the present case, sub-section (2) of Section 12 expressly
empowered the Designated Court to convict the accused
person of such other offence and pass any sentence
authorised by the Act -- if the offence is connected with such
other offence and -- if it is found that the accused person has
committed any other offence.

   36. Section 12(1) as quoted above authorises the
Designated Court to try offences under TADA along with
another offence with which the accused may be charged
under CrPC at the same trial. The only embargo imposed on
the exercise of the power is that the offence under TADA is
connected with any other offence being tried together.
Further, Section 12(2) provides that the Designated Court


                                                                      95
                                                                  Page 95
may convict the accused person of offence under that Act or
any rule made thereunder or under any other law and pass
any sentence authorised under that Act or the Rules or under
any other law, as the case may be for the punishment
thereof, if in the course of any trial under TADA the accused
persons are found to have committed any offence either
under that Act or any rule or under any other law.
   37. The legislative intendment underlying Sections 12(1)
and (2) is clearly discernible, to empower the Designated
Court to try and convict the accused for offences committed
under any other law along with offences committed under the
Act, if the offence is connected with such other offence. The
language "if the offence is connected with such other offence"
employed in Section 12(1) of the Act has great significance.
The necessary corollary is that once the other offence is
connected with the offence under TADA and if the accused is
charged under the Code and tried together in the same trial,
the Designated Court is empowered to convict the accused for
the offence under any other law, notwithstanding the fact that
no offence under TADA is made out. This could be the only
intendment of the legislature. To hold otherwise, would
amount to rewrite or recast legislation and read something
into it which is not there.

   41. The other leg of the submission is rigours of Section 18
of the Act. Section 18 deals with the power to transfer cases
to regular courts. It reads:
       "18. Where, after taking cognizance of any offence, a
   Designated Court is of opinion that the offence is not
   triable by it, it shall, notwithstanding that it has no
   jurisdiction to try such offence, transfer the case for the
   trial of such offence to any court having jurisdiction under
   the Code and the court to which the case is transferred
   may proceed with the trial of the offence as if it had taken
   cognizance of the offence."
                                       (emphasis supplied)
   42. It is contended that the words " after taking
cognizance" employed in Section 18 of the Act would include
any stage of trial including the stage when the judgment is to
be delivered. This submission is also misconceived. If it ought
to have been the intention of the legislature they could have
said so. The legislature deliberately uses the words "after
taking cognizance of any offence" to mean that Section 18
would be attracted only at the stage where the Designated
Court takes cognizance of offence i.e. after the investigation is


                                                                    96
                                                                Page 96
  complete and charge-sheet is filed. The provisions of Section
  209 CrPC on which the counsel for the appellants sought to
  rely are not in pari materia with Section 18. In Section 209
  CrPC the words "after taking cognizance" are absent
  conspicuously. Section 18 is a filtered provision. The section is
  attracted only at a stage the Designated Court takes
  cognizance of the offence. It is at the stage of taking
  cognizance, the Designated Court is expected to scan the
  documents and evidence collected therewith. If the
  Designated Court is of the opinion that the offence is not
  triable by it, it shall then, notwithstanding that it has no
  jurisdiction to try such offence, transfer the case for the trial
  of such offence to any court having jurisdiction under the
  Code and the court to which the case is transferred may
  proceed with the trial of the offence as if it had taken
  cognizance of the offence. In our view, there is no ambiguity
  in the language used in Section 18. If the submissions of the
  counsel for the appellant are accepted, it would amount to
  reading something into the statute which is not there."



70) In the case on hand, at the time of taking cognizance

by the Designated Court, there were sufficient evidence

against the appellants to proceed against them in the joint

trial. In the case of Sanjay Dutt, the Designated Court took a

view on the basis of his own confession that the weapons

were not acquired for any terrorist activity but they were

acquired for self-defence, therefore, acquittal was recorded

in respect of charge under Section 5 of TADA. We fully agree

with the same.

71) For the same reasons discussed above, we are in

agreement with the conclusion arrived at by the Designated


                                                                      97
                                                                  Page 97
Court and reject the arguments of the counsel for the other

appellants, viz., A-118 and A-124. In the light of the above

discussion, we are of the view that the course adopted by

the trial Court was correct in view of both the abovesaid

judgments of this Court.




Sentence:

72) Coming to sentence, A-117 has filed an additional

affidavit dated 24.07.2012 highlighting the circumstances

under which he was implicated, relationship of his family

members with the victims etc.     It is not in dispute that

though the appellant was also charged under TADA Act, the

fact remains that he was acquitted of those charges and

admittedly the CBI has not filed an appeal against the same.

As said earlier, the Designated Court convicted him for the

offences under Sections 3 and 7 read with Sections 25(1-A)

and (1-B)(a) of the Arms Act, 1959.    Consequently, in his

additional affidavit, the appellant has asserted that he is




                                                         98
                                                       Page 98
entitled to seek the benefit of Section 4 of Probation of

Offenders Act.

73) The    appellant   (A-117)   asserted   that   though    the

prosecution involved him in Bombay Bomb Blast Case that

he had knowledge as to the conspiracy and had kept in his

possession fire arms and ammunitions as well as hand

grenades knowing that the same were from the consignment

that had landed for use in the said Blasts, the fact remains

that the Designated Court did not accept the prosecution

story against him and rejected his involvement in the

conspiracy as well as any knowledge of the events as

charged. The TADA Court has also held that the prosecution

has failed to prove that the alleged arms in possession of the

appellant were from the same alleged consignment that was

used in the said blasts.

74) It was also contended from the side of the appellant

that in the year 1992-93, the appellant and his family

members were involved in helping people residing in riots

affected    areas,     more      particularly,     Behrampada,

predominantly having a Muslim population which was


                                                              99
                                                            Page 99
objectionable to certain group of persons who were of the

opinion that the Dutt family was sympathizers of only the

Muslim community. In fact, this leads to an attack on Sunil

Dutt in January, 1993 as well as threatening phone calls

were being received at their residence, including threats to

the family members being killed as well as the sisters of the

appellant being kidnapped and raped. This lead to a great

and   serious   apprehension    that   an   attack   could   be

perpetrated upon the Dutt family in view of the fact that Shri

Sunil Dutt had already been attacked.       This apprehension

was clearly set out in the letter of Shri Sunil Dutt to the then

DCP of Zone VII dated 06.01.1993, wherein he asked for

enhancing security arrangements further and for more police

protection at his house as deposed by PW-219 in this case.

75) It is stated that A-117 had no previous involvement or

conviction prior to one in 1992 which ended in acquittal.

Thus, according to him, he is not a previous offender or a

convict. In the event, this Court releases the appellant on

Probation under the provisions of the Probation of Offenders

Act, neither any injustice would occasion to anyone as the


                                                             10
                                                         Page 100
offence in which he was convicted, is not even a social

offence nor any prejudice be caused to the prosecution. He

asserted that he is not a habitual offender, and is not likely

to commit any offence in future. The TADA Court did not get

any opportunity to complain about the conduct of the

appellant in 19 years. He further submitted that he has also

suffered the agony of long trial of 13 ½ (thirteen and a half)

years. The stress and trauma of the same, besides the fact

that he has carried the tag of an alleged terrorist for 13 ½

(thirteen and a half) years though unwarranted, and has

been deprived of the company of his daughter, is a

punishment in itself. He has also stated that he had suffered

mentally, physically and emotionally in the last several

years.

76) He also informed this Court that he got married again in

the year 2008 and is blessed with two children aged 1 and ½

years and they need their father's presence in their life. He

further submitted that he has been actively involved in an

AIDS charity and raises funds for the free treatment of aids

patients who cannot afford the same, besides visiting the


                                                           10
                                                       Page 101
hospitals/centres.   It is further submitted that he is on the

Board of Directors of "Save the Children Foundation" and

helping in raising funds for children who are needy,

orphaned and destitute as their Brand Ambassador for a long

time, even prior to his being charged in this case.

77) In view of the above, learned senior counsel for A-117

draws attention of this Court towards the following decisions,

viz., Ved Prakash vs. State of Haryana, 1981 (1) SCC

447, this Court observed that the social background and the

personal factors of the crime-doer are very relevant although

in practice Criminal Courts have hardly paid attention to the

social milieu or the personal circumstances of the offender.

78) In Jugal Kishore vs. State of Bihar, (1972) 2 SCC 633

this Court observed that the modern criminal jurisprudence

recognizes that no one is a born criminal and that a good

many crimes are the product of socio-economic milieu.

79) This Court in Ratanlal vs. State of Punjab, (1964) 7

SCR 676 has observed to the effect that the Probation of

Offenders Act, was enacted with a view to provide for the

release of offenders of certain categories on Probation or


                                                           10
                                                        Page 102
alter due admonition and for matters connected therewith.

The object of the Act is to prevent the conversion of

offenders into obdurate criminals as a result of their

association with hardened criminals. The above object is in

consonance with the present trend in the field of penology,

according to which, efforts should be made to bring about

correction and reformation of the individual offenders and

not to resort to retributive justice. Although, not much can

be done for hardened criminals, considerable stress has

been laid on bringing about reform of offenders not guilty of

serious offences and of preventing their association with

hardened criminals. The Act gives statutory recognition to

the above objective. It is, therefore, provided that offenders

should not be sent to jail, except in certain circumstances.

80) The scope of Section 4 of the Probation of Offenders Act

is much wider.    It applies to any person found guilty of

having committed an offence not punishable with death or

imprisonment for life. The same has also been held by this

Court in Chhani vs. State of U.P., (2006) 5 SCC 396.




                                                               10
                                                        Page 103
81) Section 360 of the Code of Criminal Procedure does not

provide for any role for probation officers in assisting the

courts in relation to supervision and other matters while the

Probation of Offenders Act does make such a provision.

While Section 12 of the Probation of Offenders Act states

that a person found guilty of an offence and dealt with under

Section 3 or 4 of the Probation of Offenders Act, shall not

suffer disqualification, if any, attached to the conviction of

an offence under any law. The Code of Criminal Procedure

does not contain parallel provision. Two statutes with such

significant differences could not be intended to co-exist at

the same time in the same area. Such co-existence would

lead to anamolous results.       The intention to retain the

provisions of Section 360 of the Code and the Probation of

Offenders Act as applicable at the same time in a given area

cannot be gathered from the provisions of Section 360 or

any other provisons of the Code.

82) Keeping those information in the form of an additional

affidavit, let us consider his claim and eligibility of applying

Section 4 of the Probation of Offenders Act.


                                                             10
                                                         Page 104
83) Sub-section 4 of the Probation of Offenders Act contains

the words "Notwithstanding anything contained in any other

law for the time being in force".    The above non obstante

clause points to the conclusion that the provisions of Section

4 of the Probation of Offenders Act would have an overriding

effect and shall prevail if the other conditions prescribed

therein are fulfilled. Those conditions are:

(i)    The accused is found guilty of having committed an

       offence not punishable with death or imprisonment for

       life;

(ii)   The Court finding him guilty is of the opinion that

       having regard to the circumstances of the case,

       including the nature of the offence and the character of

       the offender, it is expedient to release him on

       probation;

(iii) The accused in such an event enters into a bond with or

       without sureties to appear and receive sentence when

       called upon during such period not exceeding three

       years as the court may direct and, in the meantime, to

       keep the peace and be of good behaviour.


                                                            10
                                                        Page 105
84) The underlying object of the above provisions obviously

is that an accused person should be given a chance of

reformation, which he would lose in case he is incarcerated

in prison and associates with hardened criminals.             It is

submitted that the provisions of the said Act are beneficial

provisions   and,   therefore,   they     should   receive    wide

interpretation and should not be read in a restricted sence

vide Ishar Das vs. State of Punjab, 1973 (2) SCC 65.

85) Section 4 of the Probation of Offenders Act applies to all

kinds of offenders, whether under or above the age of 21

years.    This section is intended to attempt possible

reformation of an offender instead of inflicting upon him the

normal punishment of his crime.         It is submitted that it is

settled law that while extending benefit of the said provision,

this Court has to exercise its discretion having regard to the

circumstances in which the crime was committed, viz., the

age, character and antecedents of the offender.         It is also

settled law that such exercise of discretion needs a sense of

responsibility. The section itself is clear that before applying




                                                                10
                                                             Page 106
the same, this Court should carefully take into consideration

the attendant circumstances.

86) The circumstances and the nature of the offence as

analysed and discussed above are so serious and we are of

the view that they do not warrant A-117 the benefit of the

provisions of the Probation of Offenders Act, however, taking

note of various aspects, we reduce the sentence to minimum

period, viz., 6 years to 5 years. The appeal is disposed of on

the above terms.

87) In respect of A-118, in view of the discussion and the

above conclusion, we confirm the conviction and sentence

awarded to him by the Designated Court. Consquently, the

appeal is dismissed.

88) Insofar as A-124 is concerned, the Designated Court

has convicted him under Sections 3 and 7 read with Sections

25(1-A)(1-B)(a) of the Arms Act, 1959, as well as under

Section 201 of IPC and sentenced him to undergo RI for 2

years on both the counts separately.     A perusal of all the

materials relating to A-124 shows that the Designated Court

itself convicted and sentenced him under Section 25(1-B)(a)


                                                           10
                                                       Page 107
of the Arms Act along with Section 201 of IPC.          While

clarifying the same, we hold that there is no substantive

evidence for convicting him under Section 25(1-A) of the

Arms Act, though the Designated Court has referred to the

same while awarding sentence to him. Also, considering his

age, i.e. 82 years as on date and taking note of the fact that

the minimum sentence for the offence under Section 25(1-B)

(a) being one year, while confirming his conviction, we

reduce the sentence awarded to A-124 under Section 25(1-

B)(a) as well as under Section 201 IPC to 1 year which shall

run concurrently.   The appeal is disposed of on the above

terms.




                                                           10
                                                       Page 108
             Criminal Appeal No. 596 of 2011

The State of Maharashtra,
through CBI                                       .... Appellant(s)

     vs.

Ajai Yash Prakash Marwah (A-120)                 .... Respondent(s)


89) Heard Mr. H.P. Rawal, learned ASG duly assisted by Mr.

Satyakam, learned counsel for the appellant (CBI).              None

appeared for the respondent.

90) The instant appeal is directed against the impugned

judgment and order dated 02.08.2007 passed by the

Designated Court under TADA for the Bombay Bomb Blast

Case, Greater Bombay in B.B.C. No.1/1993 whereby the

appellant (A-120) has been acquitted of all the charges

framed against him.

Charges:

91) A common charge of conspiracy was framed against all

the co-conspirators including the appellant.           The relevant

portion of the said charge is reproduced hereunder:

     "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


                                                                    10
                                                               Page 109
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, handgrenades
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 weapon training in handling of
arms, ammunitions and explosives to commit terrorist acts.
To harbour and conceal terrorists/co-conspirators, 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 Santacruz, Zaveri Bazar,
Katha Bazar, Century Bazar at Worli, Petrol Pump adjoining
Shiv Sena Bhavan, Plaza Theatre and in lobbing
handgrenades at Macchimar Hindu Colony, Mahim 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


                                                                11
                                                           Page 110
      Bombay.     And thereby committed offences punishable
      under Section 3(3) of TADA (P) Act, 1987 and Section 120-
      B of IPC read with Sections 3(2)(i)(ii), 3(3),(4), 5 and 6 of
      TADA (P) Act, 1987 and read with Sections 302, 307, 326,
      324, 427, 435, 436, 201 and 212 of Indian Penal Code and
      offences under Sections 3 and 7 read with Sections 25
      (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(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."


In addition to the first charge, the appellant (A-120) was also

charged for having committed the following offence in

pursuance of the criminal conspiracy described at charge

firstly:

      At head Secondly: The appellant, in pursuance of the
      aforesaid criminal conspiracy, was found to be connected
      with the episode of possession of unauthorized arms and
      hand grenades by A-117, A-118, A-124 and A-125 and
      committed the following overt acts:

            (a)    The appellant, by receiving and keeping in his
            possession one 9mm pistol and its cartridges, which
            were smuggled into the country for committing
            terrorist acts, thereby aided the co-conspirator and
            committed an offence punishable under Section 3(3)
            of TADA.

      At head Thirdly: The appellant possessed the above
      mentioned pistol and its ammunition in Greater Bombay
      which is specified as a notified area under clause (f) of sub-
      section (1) of Section 2 of TADA and thereby committed an
      offence punishable under Section 5 of TADA.

      At head Fourthly: The appellant, by possessing the
      above mentioned arms and its ammunitions with intent to




                                                                       11
                                                                  Page 111
     aid terrorists committed an offence punishable under
     Section 6 of TADA.



     At head Fifthly: The appellant, by possessing the above
     mentioned arms and its ammunitions, committed an
     offence punishable under Sections 3 and 7 read with
     Section 25(1-A)(1-B)(a) of the Arms Act, 1959.

Conviction and Sentence:
92) The Designated Court, by impugned judgment dated

02.08.2007, after considering the materials placed on record

and after adverting to all the contentions raised and

submissions made, acquitted him of all the charges framed

against him.

Discussion:

93) Against the order of acquittal in respect of all the

charges against the respondent (A-120), the CBI has filed the

present appeal.    The only point for consideration in this

appeal is whether the order of acquittal rendered by the

Designated Court is justifiable or requires interference by

this Court. Keeping the basic principles in mind, in a matter

when acquittal is recorded by the trial Court and the grounds

on which the Appellate Court can interfere, let us consider

and dispose of the above appeal.



                                                               11
                                                          Page 112
94) It is not in dispute that A-120 has not made any

confession and his co-accused A-125 relied on by the

prosecution has also not made any confession and even the

confessional statements of other co-accused failed to

disclose any involvement of A-120 in any manner. The only

allegation against the present accused is that of seizure of a

box containing a pistol from his house.       The Designated

Court, after considering the evidence of panch witness (PW-

211) regarding the statement made by A-125 and after

finding that there was lot of variation in their statements and

bereft of materials about the role of A-120 and further

finding that different stories have been projected by the

prosecution, refused to accept the same. After analyzing the

entire statement of A-125, the trial Court came to a

conclusion that the same are insufficient to connect A-120 as

being the person who had received the same pistol and

rounds.

95) As has been rightly observed by the Designated Court,

mere recoveries of a .9mm pistol and the rounds from the

bungalow of A-120 would not be sufficient to connect him


                                                            11
                                                        Page 113
with the said articles.   It is settled law that the recoveries

made must be found to have been made as a consequence

to the statement made by the accused in custody. In other

words, if the nexus in between is not established, the said

statement made would be inadmissible in evidence.            The

Designated    Court,   after   considering   the   well   settled

principles and the materials placed concluded that "it will be

further necessary to say that scrutiny of the evidence also

does not reveals A-120 having purchased .9mm pistol and

rounds......" The Designated Court has also concluded that

even if the statement made by A-125 is acceptable, in the

absence of any supporting oral and documentary evidence

and taking note of the improvement made by panch witness

as well as in the statements of witnesses stage by stage

"hardly there would be any evidence to connect A-120 with

the relevant contraband articles" and rightly discarded the

same.

96)   In the light of the categorical finding by the trial Court

and after analyzing the materials placed by the prosecution,

we fully concur with the said conclusion and according to us,


                                                              11
                                                          Page 114
with the above said insufficient evidence, the order of

acquittal cannot be lightly interfered in the present appeal,

consequently, the appeal filed by the CBI fails and the same

is dismissed.




                                                          11
                                                      Page 115
            Criminal Appeal No. 1104 of 2007


Samir Ahmed Hingora (A-53)                .... Appellant(s)

     vs.

The State of Maharashtra,
thro. Superintendent of Police,
CBI (STF), Bombay                         ....
Respondent(s)

                            WITH

            Criminal Appeal No. 1026 of 2012


The State of Maharashtra,
through CBI (STF), Bombay                        ....
Appellant(s)

     vs.

Samir Ahmed Hingora (A-53)                ....
Respondent(s)


                          **********
97) Heard Mr. Mukul Rohtagi and Mr. V.K. Bali, learned

senior counsel for A-53 and Mr. H.P. Rawal, learned ASG for

the CBI.

Criminal Appeal No. 1104 of 2007

98) The present appeal is directed against the final

judgment and order of conviction and sentence dated


                                                           11
                                                        Page 116
29.11.2006     and    01.06.2007      respectively     whereby       the

appellant (A-53) has been convicted and sentenced by the

Designated Court under TADA for the Bombay Bomb Blast

Case, Greater Bombay in B.B.C. No.1/1993.

Charges:

99) A common charge of conspiracy was framed against all

the co-conspirators including the appellant.            The relevant

portion of the said charge is reproduced hereunder:

     "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, handgrenades
     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


                                                                     11
                                                                Page 117
    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 weapon training in handling of
    arms, ammunitions and explosives to commit terrorist acts.
    To harbour and conceal terrorists/co-conspirators, 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 Santacruz, Zaveri
    Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol
    Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in
    lobbing handgrenades at Macchimar Hindu Colony, Mahim
    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) of TADA (P) Act, 1987 and Section 120-
    B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of
    TADA (P) Act, 1987 and read with Sections 302, 307, 326,
    324, 427, 435, 436, 201 and 212 of Indian Penal Code and
    offences under Sections 3 and 7 read with Sections 25
    (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(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."

    In addition to the above-said principal charge of

conspiracy, the appellant was also charged on other counts

which are as under:

    At head Secondly; The appellant committed an offence
    punishable under Section 3(3) of TADA by doing the
    following overt acts:-



                                                                    11
                                                               Page 118
      (a)   The appellant supplied 3 AK-56 rifles, its magazines,
            ammunitions and hand grenades to Sanjay Dutt (A-
            117) at his residence at the instance of Anees
            Ibrahim Kaskar (AA).

      (b)   The appellant arranged 7 air tickets from East West
            Travels by making cash payment at the instance of
            A-1 to facilitate the escape of members of Memon
            family to Pakistan via Dubai.

      At head Thirdly; The appellant acquired and facilitated
      transport of the above mentioned arms and ammunitions
      to A-117 with intent to aid terrorist and thereby committed
      an offence punishable under Section 6 of TADA.

100) The Designated Court found the appellant guilty on the

charges mentioned at head firstly (smaller conspiracy) and

clause (a) at head secondly.            The appellant has been

convicted and sentenced for the above said charges as

under:


Conviction and Sentence:
(i)   The appellant has been convicted for the offence of

conspiracy read with the offences described at head firstly

and sentenced to RI for 9 years alongwith a fine of Rs.

1,00,000/-, in default, to further undergo RI for 3 years for

the commission of offence under Section 3(3) of TADA.

(charge firstly)




                                                                    11
                                                               Page 119
(ii)   The appellant has been convicted for the offence under

section 3(3) of TADA for commission of acts mentioned at

clause (a) of head secondly, and sentenced to RI for 9 years

alongwith a fine of Rs. 1, 00,000/-, in default, to further

undergo RI for 3 years. (charge secondly)


Evidence

101) The evidence against the appellant (A-53) is in the form

of:-

(i)    his own confession;

(ii)   confessions   made    by   other   co-conspirators;   (co-

       accused); and

(iii) testimony of prosecution witness.

Confesssional Statement of Samir Ahmed Hingora (A-
53)

102) Confessional statement of A-53 under Section 15 of

TADA has been recorded on 18.05.1993 (17:00 hrs.) and

20.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay.             A perusal of his

confessional statement states as under:-




                                                              12
                                                         Page 120
(i)    The appellant started a Video Library and Mustafa

Dossa @ Mustafa Majnoo (A-138)-brother of Mohd. Dossa

(AA), was a member of his Library.

(ii)   Tiger Memon used to work with A-138 in his shops at

Manish Market and became a friend of A-53.

(iii) The appellant started the business of film distribution

and production by the name of Magnum in partnership with

Hanif Kandawala (A-40)-since deceased.

(iv) Anees Ibrahim Kaskar (AA) became a member of his

Video Library and was referred to by everyone as Anisbhai

since he was the brother of Dawood Ibrahim.

(v)    A-53 and Tiger Memon used to meet frequently and

discuss matters relating to the business.

(vi) A-53 received a payment of Rs. 21.90 lakhs from Ayub

Memon sent through someone on 13.03.1993 (one day after

the blasts) as advance for purchasing rights of films.

(vii) A-53 had visited Dubai and met Anis Ibrahim many

times and sold the rights of many films to M/s Kings Video,

managed by Anis.       Anis also controls Al-Mansoor Video

Company through Chota Rajan.


                                                            12
                                                         Page 121
(viii) On 15.01.1993, Ibrahim Musa Chauhan (A-41) and Abu

Salem (A-139) met A-53 at his office, and gave him a

message that they have been directed by Anisbhai to see

the appellant regarding the handing over of weapons to A-

117 at his residence.

(ix) Anis Ibrahim called the appellant from Dubai and told

him that A-41 and A-139 are his men and that they will bring

one vehicle loaded with weapons and the appellant has to

make arrangements for off-loading and handing over the

weapons to A-117, and the rest will be taken by them for

distribution to other persons.

(x)   Inspite of the unwillingness of Hanif Kandawala, his

partner, in order to carry out the instructions, A-53 took A-

139 to the residence of A-117, where A-117 hugged Abu

Salem and asked him about the weapons. A-117 then told A-

139 to bring the weapons the next day at 7 am.

(xi) On 16.01.1993, A-53 led A-139 and A-41 to the house of

Sanjay Dutt. A-139 and A-41 were in a blue maruti van while

A-53 was in his own car.




                                                          12
                                                      Page 122
(xii) At the residence of A-117, A-53 saw that the blue van

was containing 9 AK-56 rifles and some hand grenades and

gave 3 AK-56 rifles and some magazines to A-117.        A-117

also asked for some hand grenades which were put in a

black bag by A-139.

(xiii) A-139 kept the rifles in a fiat car belonging to A-117.

The hand grenades were kept in the car of A-53, and he left

the car at A-117's residence and took an auto rickshaw.

(xiv) A-53 collected his car from A-117's residence after 3

days when he called him and informed him that grenades

have been taken out.

103) A perusal of the aforesaid confession shows that the

appellant was aware about the goods which were to be off-

loaded and also about the purpose for which the same were

to be used which fact is clear from his confession, viz.,

"Anees Bhai telephone to me from Dubai saying that Baba

and Saleem are his men. They will bring one vehicle loaded

with weapons. You make arrangements for off-loading and

hand over weapons to A-117 and the rest will be taken by

them for distribution to other persons".   Further, inspite of


                                                           12
                                                       Page 123
the unwillingness of Hanif Kandawala, he proceeded to help

the co-accused. So the contention of the appellant that he

was a mere navigator is misplaced and incorrect.




Confessional Statements of co-accused:

104) Apart from his own confession, the involvement of the

appellant has also been disclosed in the confessional

statements of the following co-accused.        The legality and

acceptability of the confessions of the co-accused has

already been considered by us in the earlier part of our

discussion. The said confessions insofar as they refer to the

appellant       (A-53) are summarized hereinbelow:

Confessional Statement of Ibrahim Musa Chauhan @
Baba (A-41)

        Confessional statement of A-41 under Section 15 of

TADA      was    recorded   on   23.04.1993   (12:45   hrs.)   and

25.04.1993 (13:05 hrs.) by Shri Prem Krishna Jain (PW-189),

the then DCP, Zone X, Bombay. The said confession shows

that:



                                                               12
                                                           Page 124
(i)    On 15.01.1993, A-41 and A-139 went to the office of

       Magnum in order to meet A-53 upon the instructions of

       Anees who was in Dubai.

(ii)   A-53 along with A-41, A-139 and later with A-41

       searched for garages in Pali Hill areas, Bandra as

       suggested by Anees Ibrahim.

(iii) A-53 and A-139 left together on 15.01.1993.

(iv) On 16.01.1993, A-139 came to his house in the morning

       and they reached the office of A-53 at around 06:30-

       06:45 a.m. A-139 and A-41 sat in one car followed by

       the car of A-53 to the house of Sanjay Dutt (A-117).

(v)    A-139 opened the van at the residence of A-117 and

       took out 9 AK-56 rifles, about 80 hand grenades and

       around 1500/2000 bullets in the presence of A-53 and

       A-117.

(vi) A-139 kept 3 rifles, 9 magazines, 450 bullets and 20

       hand grenades in the car of A-117.

(vii) A-53 kept 20 hand grenades in his car. A-53 also gave

       a long sports bag to A-41 in which 3 rifles, 16




                                                              12
                                                         Page 125
      magazines, 25 hand grenades and 750 bullets were

      kept.

(ix) A-53 dropped A-41 to his car and after that they left the

      residence of A-117.

A perusal of the confessional statement of A-41 shows that

the appellant helped the co-accused persons to look for a

garage where the weapons could be off-loaded and after

that they were to be distributed to various persons.

Confessional Statement of Mobina @ Baya Moosa
Bhiwandiwala (A-96)

(i)   On the directions of Tiger Memon, owner of Magnum

      Videos (A-53) had sent Rs. 50,000/- to her residence on

      one or two occasions.

(iii) After the blast, the owner of Magnum Videos (A-53) had

      sent Rs. 50,000/- for help.

The above confession of A-96 shows that the appellant was

in touch with Tiger Memon even after the blasts and on his

instructions, he sent Rs. 50,000/- to A-96 for help.

Confessional Statement of Sanjay Dutt (A-117)




                                                           12
                                                       Page 126
       Confessional statement of A-117 under Section 15 of

TADA     was   recorded   on   26.04.1993   (15:30   hrs.)   and

28.04.1993 (16:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. The said confession reveals

as under:

(i)    A-117 knew A-53 and he was acting in one of his films.

A-53 used to frequently come to his house for taking dates.

(ii)   A-53 and A-40 repeatedly told A-117 to acquire a

firearm from them.

(iii) In mid-January, A-53, A-40 and A-139 came to the

house of A-117 at around 09:30 p.m. and told him that the

weapons will be delievered the next day.       Next day, they

again came in the morning with one more person to the

residence of A-117.

(iv) At the residence of A-117, in the presence of A-53, A-

139 took out weapons and handed it over to him.

(v)    A-53 came to his house along with A-40 after 2-3 days

when A-117 returned 2 AK-56 rifles to them.

The confession of A-117 corroborates in material particulars

with the confession of other co-accused persons.


                                                             12
                                                         Page 127
Deposition of Prosecution Witness:

105) Apart     from     the    aforesaid     evidence,    the    following

prosecution witness deposed as under:


Deposition of Pandharinath Hanumanth Shinde (PW-218)


       The relevant material in his evidence is as follows:-


(i)    PW-218 identified A-53 in the TIP held on 27.05.1993 at

       the office of Crime Branch.

(ii)   PW-218 identified A-53 in the Court.

106) Upon perusal of the entire evidence, it is clear that the

appellant was closely associated with Tiger Memon and

Anees     Ibrahim     Kaskar   (AA).       Further,   inspite   of   the

unwillingness shown by his partner - Hanif Kandawala (A-40),

the appellant helped the co-accused searched for garages

where the weapons were to be off-loaded and concealed

whereafter they were to be distributed to A-117 and other

persons.     In addition to the same, the appellant was also

associated with co-accused even after the blasts which fact

is clearly discernible from the confession of A-96 wherein she

stated that after coming back to her house, her father


                                                                     12
                                                                 Page 128
informed her that owner of Magnum Videos (A-53) had come

and gave Rs. 50,000/- for help.

107) Mr. Rohtagi, learned senior counsel for the appellant

pointed out that without establishing the pre-requisites as

held in the case of State vs. Nalini, (1999) 5 SCC 253, it is

only   on    the   ground    of   acquaintance     with    the    main

conspirators and alleged knowledge acquired on phone that

after handing over weapons to A-117, the balance would be

taken for distribution, for which the appellant has been

erroneously convicted under Section 3(3). We are unable to

accept the said claim.       We have already pointed out the

appellant's proximity with Anees Ibrahim.           It was on the

instructions of Anees that the arms were delivered to Sanjay

Dutt   and    because   of    the   relationship   of     Anees    and

Tiger/Dawood Ibrahim, it establishes a strong link between

A-53 and Anees. Though it was argued that there was no

proximity between the appellant and Anees, materials relied

on by the prosecution clearly prove their relationship.

Further, their relationship cannot be simply construed as a

business relationship. The materials placed on record by the


                                                                    12
                                                                 Page 129
prosecution, relied on and accepted by the Special Judge

show that the appellant was guilty of distributing arms to

persons other than Sanjay Dutt. The finding recorded by the

trial Judge is that A-53 not only distributed weapons to A-117

but also to third parties.

108) The CBI has successfully placed materials to show that

the appellant was responsible for arranging garages for the

storage of weapons.          We have already adverted to the

confessional statement of A-41 wherein in categorical terms

it was asserted that A-53, the present appellant, along with

A-41 and A-139 searched for garages in Pali Hill areas,

Bandra where the weapons could be off loaded and after

that they were to be distributed to various persons as

suggested by Anees Ibrahim.          In view of the same, the

argument of the learned senior counsel for the appellant is

liable to be rejected.       The confessional statement of A-41

also shows that the appellant helped the co-accused persons

to look for garages.     In such circumstance, it cannot be

claimed that at no point of time A-53 was ever aware of what

was to be stored in the garages.


                                                            13
                                                         Page 130
109) Mr. Rohtagi, learned senior counsel disputed the

admissibility of confession made by the appellant and

voluntariness of his statement.    The Designated Court, on

going through the evidence of the officer who recorded his

confession, the procedure followed, opportunity given to the

appellant, rejected the similar objection raised before him.

Upon going through all the materials, we agree with the

reasoning of the Special Judge and we are of the view that

there is no flaw in the procedure while recording the

confession of the appellant.

Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 1026 of 2012
110) Though Mr. Rawal, learned ASG, prayed for conviction

of A-53 for the charge framed at head firstly, i.e., larger

conspiracy, in view of the above discussion, we are satisfied

that the materials available establish his involvement only to

the extent of the smaller conspiracy and the Designated

Court was justified in arriving at such conclusion and we fully

agree with the same, hence, the appeal filed by the State is

liable to be dismissed.



                                                            13
                                                        Page 131
Sentence:

111) According to learned senior counsel for A-53, out of 9

years of sentence awarded, he has completed 6 ½ (six and a

half) years and there are several extenuating circumstances

for reduction of the sentence. They are:

(i)    The appellant is a sick person suffering from cardiac

       problems since 2001;

(ii)   He has 6 stents in his arteries;

(iii) The appellant, in addition to heart disease, is a diabetic

       patient (on insulin). While diabetes on its own may not

       be a major ailment, it assumes far greater seriousness

       when coupled with a serious heart ailment.

(iv) The appellant has already faced protracted trial for 13

       ½ (thirteen and a half) years on day to day basis. In

       fact, he has continued attendance after conviction as

       per bail conditions for further 5 years;

v)     The entire business and goodwill of the appellant has

       been lost.

vi)    The appellant has already served about 6 ½ (six and a

       half) years (without remission).


                                                             13
                                                         Page 132
112) Taking note of all these aspects and of the fact that the

CBI was not able to establish the charge relating to major

conspiracy and also that out of the period of 9 years, A-53

has served nearly six and a half years of sentence and in the

light of the ailments and taking note of the fact that the

minimum sentence prescribed is 5 years, while confirming

the conviction, we reduce the sentence to the period already

undergone.

113) The appeal filed by the accused is disposed of on the

above terms. The appeal filed by the CBI is dismissed.




                                                            13
                                                         Page 133
            Criminal Appeal No. 1001 of 2007



Zaibunisa Anwar Kazi (A-119)                    ... Appellant(s)

     vs.

The State of Maharashtra,
through Superintendent of Police,
CBI-STF, Bombay                                ... Respondent(s)

                              WITH

            Criminal Appeal No. 392 of 2011

The State of Maharashtra,
through CBI                                    .... Appellant(s)

     vs.

Zaibunisa Anwar Kazi (A-119)                                     ....
Respondent(s)


114) Mr. Sushil Kumar, learned senior counsel appeared for

the appellant (A-119) and Mr. Rawal, learned ASG duly

assisted by Mr. Satyakam, learned counsel appeared for the

respondent (CBI).

Criminal Appeal No. 1001 of 2007

115) The   instant   appeal   is   directed   against   the    final

judgment and order of conviction and sentence dated



                                                                 13
                                                              Page 134
28.11.2006     and    14.06.2007      respectively     whereby       the

appellant (A-119) has been convicted and sentenced to

rigorous imprisonment for 5 years by the Designated Court

under TADA for the Bombay Bomb Blast Case, Greater

Bombay in B.B.C. No.1/1993.

Charges:

116) A common charge of conspiracy was framed against all

the co-conspirators including the appellant.            The relevant

portion of the said charge is reproduced hereunder:

     "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, handgrenades
     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


                                                                     13
                                                                Page 135
     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 weapon training in handling of
     arms, ammunitions and explosives to commit terrorist acts.
     To harbour and conceal terrorists/co-conspirators, 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 Santacruz, Zaveri
     Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol
     Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in
     lobbing handgrenades at Macchimar Hindu Colony, Mahim
     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) of TADA (P) Act, 1987 and Section 120-
     B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of
     TADA (P) Act, 1987 and read with Sections 302, 307, 326,
     324, 427, 435, 436, 201 and 212 of Indian Penal Code and
     offences under Sections 3 and 7 read with Sections 25
     (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(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."

In addition to the first charge, the appellant (A-119) was also

charged for having committed the following offences in

pursuance of the criminal conspiracy described as under:




                                                                     13
                                                                Page 136
    At head Secondly: The appellant, in pursuance of the
    aforesaid criminal conspiracy, has committed the following
    overt acts:

           (a)    The appellant, in connivance with other co-
           conspirators kept in her possession AK-56 rifles, its
           ammunitions and hand grenades which she stored at
           her residence at the instance of Anees Ibrahim
           Kaskar (AA) which was brought to her residence by
           wanted accused Abu Salem Qayum Ansari (then
           absconding now A-139) and Manzoor Ahmed Sayed
           Ahmed (A-89) and thereby aided and facilitated the
           distribution of firearms, ammunition and explosives
           smuggled into India by other co-conspirators for
           committing terrorist acts and thereby committed an
           offence punishable under Section 3 (3) of TADA.

    At head Thirdly: The appellant, in pursuance of the
    aforesaid criminal conspiracy, had in her possession,
    unauthorisedly, AK-56 rifles, its ammunitions and hand
    grenades in Greater Bombay which is specified as a
    notified area under clause (f) of sub-section (1) of Section 2
    of TADA and thereby committed an offence punishable
    under Section 5 of TADA.

    At head Fourthly: The appellant, in pursuance of the
    aforesaid criminal conspiracy, with an intent to aid
    terrorists   and   failed   to    give   information   to
    police/magistrate contravened the provisions of the Arms
    Act, 1959, the Arms Rules, 1962, the Explosive Substances
    Act, 1908 and the Explosives Rules, 1983 and thereby
    committed an offence punishable under Section 6 of TADA.

Conviction and Sentence:


117) The    appellant    (A-119)     has    been     convicted       and

sentenced as under:




                                                                      13
                                                                Page 137
(i)    RI for 5 years with a fine of Rs. 25,000/-, in default, to

       further undergo RI for 6 months under Section 3(3) of

       TADA (charge secondly)


ii)    RI for 5 years along with a fine of Rs. 75,000/-, in

       default, to further undergo RI for a period of 1 ½ (one

       and a half) years. (charge fourthly)


118) The Designated Court acquitted the appellant (A-119)

on the first and third charge. Challenging the conviction A-

119 filed Criminal Appeal No. 1001/2007 and Criminal Appeal

No. 392/2011 has been preferred by the prosecution

challenging the acquittal of the appellant on the charge of

conspiracy alone.


Evidence

119) The evidence against the appellant (A-119) is in the

form of:-

(i)    confessions     made   by   other   co-conspirator;     (co-

       accused); and

(ii)   testimony of prosecution witnesses.




                                                                13
                                                             Page 138
120) Confessional Statements of co-accused:

     A brief account of the evidence brought on record in

respect of A-119 is summarized as under:




Confesssional Statement of Manzoor Ahmed Sayed
Ahmed (A-89)

     Confessional statement of A-89 under Section 15 of

TADA has been recorded on 24.05.1993 (11:15 hrs.) (Part I)

and 26.05.1993 (Part II) (17:30 hrs.). The confession of A-89

with respect to the appellant is summarized hereunder:

     "A-89 and A-139 went to the first floor of 22 Mount

     Mary, Vidhyanchal Apartment and handed over the bag

     to a lady and told that the bag contains arms for

     causing riots and they were sent by Anis Bhai and that

     they would take the bag after some days. After saying

     so, he gave the bag to that middle aged lady. The lady

     opened the bag and after seeing its contents, closed

     the same and took it inside the room".

121) Upon perusal of the aforesaid confession, it is clear that

the appellant was in conscious possession of arms and


                                                            13
                                                        Page 139
ammunitions and explosives in a notified area of Bombay,

and was also aware about the purpose for which they were

to be used, that is, to cause riots in Bombay. On the other

hand, according to counsel for the appellant (A-119), the

confession of A-89 cannot be relied upon since it has no

evidentiary value.    On the other hand, Mr. Rawal, learned

ASG while relying on the decision of this Court in Mohd.

Ayub Dar vs. State of Jammu and Kashmir, (2010) 9 SCC

312 contended that the conviction and sentence under

charge secondly and fourthly is fully justified.          He relied

heavily on the following conclusion arrived at by this Court

which reads thus:

     "59. It would, therefore, be clear, as rightly contended by
     Shri Rawal that merely because the guidelines in Kartar
     Singh v. State of Punjab were not fully followed, that by
     itself does not wipe out the confession recorded. We have
     already given our reasons for holding that the confession
     was recorded by A.K. Suri (PW 2) taking full care and
     cautions which were required to be observed while
     recording the confession.
     60. In Ravinder Singh v. State of Maharashtra it has been
     observed in para 19 that if the confession made by the
     accused is voluntary and truthful and relates to the
     accused himself, then no further corroboration is necessary
     and a conviction of the accused can be solely based on it.
     It has also been observed that such confessional statement
     is admissible as a substantive piece of evidence. It was
     further observed that the said confession need not be
     tested for the contradictions to be found in the confession
     of the co-accused. It is for that reason that even if the


                                                                   14
                                                              Page 140
       other oral evidence goes counter to the statements made
       in the confession, one's confession can be found to be
       voluntary and reliable and it can become the basis of the
       conviction."

In addition to the proposition of law mentioned above, the

acceptability of confession of co-accused has already been

discussed and considered in the earlier part of our judgment,

there is no need to repeat the same once again.

Other evidence:

Deposition of Dilip Bhandur Gosh (PW-283)

122) PW-283 deposed as under:

(i)    At the relevant time, he was working as the watchman

       in the Vidhyanchal Society.

(ii)   He further deposed that he will be able to identify the

       occupants of the said society in the year 1993

(iii) He stated that the appellant was residing on the first

       floor of B Wing of the said society

(iv) He identified the appellant before the court.

The aforesaid evidence corroborates the fact that the

appellant was staying on the first floor of the Vidyanchal

Building.




                                                                   14
                                                              Page 141
123) Upon   appreciation     of    the   entire    evidence,      the

Designated Court held as under:

    "32) With regard to the case of A-119 there appears
    similarity in many of the aspects with A-89. With regard to
    the defence criticism of the material evidence against her
    being in shape of material in confession of A-89 all the
    dilation made about the submissions canvassed that
    conviction cannot be made on the basis of material in
    confession of co-accused would be applicable. In the said
    context, it will be necessary to add that material in the
    confession of co-accused being now held to be substantive
    piece of evidence and considering the circumstances
    relevant to the role played by A-119 i.e. only 3 persons
    being present when the relevant act of taking and storing
    the weapons was effected and thus there being no other
    corroborative material, which could have been available
    the said matters in the confession will not be liable to be
    discarded on the count of there being no corroborations as
    stated earlier. Now considering the period in which the
    relevant had occurred and the period after which the police
    had received the information, merely because evidence
    does not reveal of any material being found at the house of
    A-119 will not be a ground for discarding the said material
    in the confession of A-89. As a matter of fact, event the
    said material itself reveals that the said weapons were to
    be kept with her and were to be collected back by Abu
    Salem; non-finding of weapon with her clearly appears to
    be insignificant circumstance.

    33) Thus the evidence having clearly denoted that
    weapons were kept with her for storage purpose and they
    were to be collected back, A-119 cannot be said to be in
    possession of contraband material as all the time the
    possession of the said weapons would have been that of
    main conspirator who had kept the same with her. In view
    of the same, alike A-89 she cannot be said to be guilty for
    commission of offence under Section 5 of TADA and the
    relevant sections under the Arms Act, for which she is
    charged at the trial. Similarly, for the same reasons
    because of which A-89 cannot be said to be guilty for
    offence of conspiracy. She also cannot be said tobe guilty
    for commission of such offence. It is indeed true that
    considering the role played by her in storing the weapons


                                                                  14
                                                             Page 142
     in her house or even for A-89 being also instrumental for
     taking the said weapons does create a strong suspicion of
     both of them being man of confidence of prime
     conspirator. However, since shrouding of suspicion cannot
     take the place of proof and there being paucity of material
     that both of them had knowledge of object of any
     particular conspiracy both of them cannot be held guilty for
     commission of offence of conspiracy. Thus, alike A-89 she
     will be also required to be held not guilty for commission of
     offence for which she was charged at head firstly.

     34) However, considering the repeated participation of A-
     119 in allowing absconding accused Anees Ibrahim to store
     the weapons at her house or with her, herself taking up the
     weapons in spite of knowing the purpose for which the
     same were sent by Anees, the evidence pertaining to
     second occasion clearly revealing that the weapons were 2
     AK-56 Rifles and the ammunition and thereby all the
     evidence establishing that the same being brought to India
     for commission of terrorists Act i.e. by and for the
     terrorists, act committed by her will clearly fall within the
     four corners of Section 3(3) of TADA. Similarly, her act of
     keeping such a material in the house, even after knowing
     the purpose for which the same were brought to India
     clearly reveals that by the same she was aiding and
     abetting the terrorists by contravening the provisions of
     the Arms Act. As such she will be required to be held guilty
     for commission of offence under Section 6 of TADA.

     35) As a result of the aforesaid discussion, Point No. 163
     to 166 and so also relevant points framed for offence of
     conspiracy will be required to be answered in consonance
     with conclusions arrived during the aforesaid discussion i.e.
     affirmative for holding A-89 and A-119 guilty for offence
     under Section 3(3) of TADA and A-119 also guilty for
     offence under Section 6 of TADA and negative with regard
     to the other charges framed against them at a trial. Thus
     Point No. 163 to 166 stands answered accordingly."



124) The above discussion shows that the Designated Court

convicted the appellant under Section 3(3) and Section 6 of

TADA only on the basis of the confessional statement of A-89

                                                                     14
                                                                Page 143
and the evidence of PW-283 Chowkidar (watchman in the

building). Admittedly, the appellant, at no point of time, had

made any confession admitting her guilt. Equally, it is not in

dispute that no recovery has been affected from her house.

The only incriminating circumstance against her is the

statement of A-89 that while handing over a plastic bag, he

mentioned that it contains AK-56 rifle and other arms. It is

also his claim that after knowing the contents, she received

the same and kept it in her house.

125) Taking note of all these aspects, absolutely, there is no

case insofar as the main conspiracy against her and we are

satisfied that the Designated Court has rightly acquitted her

of the main charge i.e. charge firstly. However, upon perusal

of the entire evidence, the judgment passed by the

Designated Court is upheld to the extent of Charge secondly

and fourthly.

126) In view of the minimum sentence of 5 years prescribed

under Sections 3(3) and 6 of TADA, we have no other option,

but to confirm the conviction and sentence as awarded by




                                                           14
                                                       Page 144
the Designated Court. Consequently, the appeal fails and is

accordingly dismissed.

Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 392 of 2011
127) Though Mr. Rawal, learned ASG, prayed for conviction

of A-119 for the charge framed at head firstly, i.e.,

conspiracy, in view of the above discussion, we are satisfied

that the Designated Court was justified in arriving at such a

conclusion and we fully agree with the same. Hence, the

appeal filed by the State is liable to be dismissed.

128) The appellants-accused concerned are directed to

surrender within a period of 4 (four) weeks from today in

order to serve the remaining period of sentence. The

Designated Court is directed to take appropriate steps for

their custody in case of failure to comply with the above said

direction.

129) For convenience, we have reproduced the conclusion

arrived at in respect of all the appeals dealt with under this

part in Annexure `A' appended hereto.




                                                           14
                                                       Page 145
130) We must in the end express our deep gratitude to

learned senior counsel/counsel for both sides who rendered

relentless assistance and support to the Bench in arriving at

its decision. Their efforts are salutary and we record our

appreciation for the same.

                                      ..............................J.
                                      .




                                      (P. SATHASIVAM)


                                          .............................
        ...J.
NEW DELHI;                                              (DR. B.S.
CHAUHAN)
MARCH 21, 2013.




                                                                    14
                                                               Page 146
      Annexure `A'
S.N    Criminal Appeal   Accused Name and Number            Sentence by Award by
o.                                                          Designated     Supreme Court
                                                            Court
1.     1060/2007         Sanjay Dutt (A-117)                RI for 6 years Reduced to RI for
                                                                           5 years
2.     1102/2007         Yusuf Mohsin Nulwalla (A-118)      RI for 5 years Confirmed
3.     1687/2007         Kersi Bapuji Adajania (A-124)      RI for 2 years Reduced to RI for
                                                                           1 year
4.     596/2011          Ajai Yash Parkash Marwah (A-120)   Acquitted      State appeal
       (By State)                                                          dismissed
5.     1104/2007         Samir Hingora (A-53)               RI for 9 years Reduced to the
                                                                           period already
        with                                                               undergone.

       1026/2012
       (By State)                                                          Dismissed
6.     1001/2007         Zaibunisa Anwar Kazi (A-119)       RI for 5 years Confirmed

        with

       392/2011
       (By State)                                                          Dismissed




                                                                             14
                                                                        Page 147
 
 
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