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)
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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
********
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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)
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**********
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
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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,
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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):
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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.
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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):
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(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.
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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
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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
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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.
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(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.
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(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-
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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.
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(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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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),
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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,
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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,
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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.
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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."
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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
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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
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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."
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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
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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.
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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
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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:
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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:
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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:
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"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."
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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.
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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:
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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
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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.
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(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).
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(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.
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(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)
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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).
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(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)
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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.
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(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.
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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.
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(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.
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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
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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
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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:-
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"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
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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
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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
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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:-
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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
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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:-
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"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)
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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)
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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.
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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
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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
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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
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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.
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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
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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:-
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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
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