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Crl.A.No.1438/2007 AHMED SHAH KHAN DURRANI @ A.S.MUBARAK S Vs. STATE OF MAHARASHTRA WITH CONNECTED MATTERS [APPEALS FILED BY ACCUSED WITH STATE APPEAL
April, 02nd 2013
APPEALS FILED BY ACCUSED WITH STATE APPEAL
                  (PART ­ 4)

                                             REPORTABLE

          IN THE SUPREME COURT OF INDIA
         CRIMINAL APPELLATE JURISDICTION

           CRIMINAL APPEAL NO. 1438 OF 2007

Ahmed Shah Khan Durrani @ A.S. Mubarak S          ...Appellant

                           Versus

State of Maharashtra                              ... Respondent

                           WITH

               Criminal Appeal No. 912 of 2007

                           WITH

               Criminal Appeal No. 1030 of 2012

                           WITH

               Criminal Appeal No. 1311 of 2007
                           AND
               Criminal Appeal No. 417 of 2011

                           WITH

               Criminal Appeal No. 1610 of 2011
                           AND
               Criminal Appeal No. 398 of 2011

                           WITH

              Criminal Appeal No. 1420 of 2007
                          AND
              Criminal Appeal No. 1031 of 2012




                                                             Page 1
              WITH

Criminal Appeal Nos. 675-681 of 2008

              WITH

  Criminal Appeal No. 600 of 2011

              WITH

  Criminal Appeal No. 406 of 2011

              WITH

  Criminal Appeal No. 408 of 2011

              WITH

  Criminal Appeal No. 416 of 2011

              WITH

 Criminal Appeal No. 1034 of 2012

              WITH

  Criminal Appeal No. 512 of 2008
             WITH
  Criminal Appeal No. 401 of 2011
              AND
  Criminal Appeal No. 595 of 2011

              WITH

  Criminal Appeal No. 171 of 2008
             WITH
  Criminal Appeal No. 172 of 2008
             AND
  Criminal Appeal No. 403 of 2011

              WITH

 Criminal Appeal No. 1630 of 2007


                                       2
                                           Page 2
            AND
Criminal Appeal No. 1029 of 2012

            WITH

Criminal Appeal No. 207 of 2008
           AND
Criminal Appeal No. 415 of 2011

            WITH

Criminal Appeal No. 2173 of 2010

            WITH

Criminal Appeal No. 1632 of 2007

            WITH

Criminal Appeal No. 271 of 2008

            WITH

Criminal Appeal No. 598 of 2011

            WITH

Criminal Appeal No. 1439 of 2007
            AND
Criminal Appeal No. 1035 of 2012

            WITH

Criminal Appeal No. 203 of 2008
           WITH
Criminal Appeal No. 396 of 2011
            AND
Criminal Appeal No. 414 of 2011

            WITH

Criminal Appeal No. 1423 of 2007
            AND


                                   3
                                       Page 3
             Criminal Appeal No. 1032 of 2012
           CRIMINAL APPEAL NO. 1438 OF 2007



Ahmed Shah Khan Durrani @ A.S. Mubarak S               ...Appellant

                              Versus

State of Maharashtra                                  ... Respondent


                        JUDGMENT


Dr. B.S. Chauhan, J:

1.    This appeal has been preferred against the impugned

judgment and order dated 30.5.2007, passed by Special Judge of

the Designated Court under the Terrorist and Disruptive Activities

(Prevention) Act, 1987 (hereinafter referred to as the `TADA') for

the Bombay Blast, Greater Bombay, in the Bombay Blast Case No.

1/1993, convicting the appellant under Section 5 TADA, and

awarding the punishment of 5 years RI, alongwith a fine of

Rs.25,000/-, and in default of payment of fine, to further undergo

RI for 6 months.





2.    Facts and circumstances giving rise to this appeal are that:

A.    As the facts of this case and all legal issues involved herein

have been elaborately dealt with in the connected appeal i.e.

Criminal Appeal No. 1728 of 2007           [Yakub Abdul Razak


                                                                4
                                                                     Page 4
Memon v. State of Maharashtra thr. CBI ], it may be pertinent to

mention only the relevant facts and charges against the appellant

(A-20).

B.    Bombay Blast took place on 12.3.1993 in which 257 persons

lost their lives and 713 were injured. In addition thereto there had

been loss of property worth several crores. The Bombay police

investigated the matter at initial stage but subsequently it was

entrusted to the Central Bureau of Investigation (hereinafter

referred to as `CBI') and on conclusion of the investigation, a

chargesheet was filed against a large number of accused persons.

Out of the accused persons against whom chargesheet was filed, 40

accused could not be put to trial as they have been absconding.

Thus, the Designated Court under TADA framed charges against

138 accused persons. During the trial, 11 accused died and 2

accused turned hostile. Further the Designated Court discharged 2

accused during trial and the remaining persons including appellant

(A-20) stood convicted.

C.    The appellant had been charged for general conspiracy

which is framed against all the accused persons for the offences

punishable under Section 3(3) TADA and Section 120-B of Indian

Penal Code, 1860 (hereinafter referred to as `IPC') read with

Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with


                                                                5
                                                                    Page 5
Sections 302, 307,326,324,427,435,436, 201 and 212 IPC and

offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B)

(a) of the Arms Act, 1959 (hereinafter referred to as the `Arms

Act'), Sections 9-B(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.

D.      In addition to the general charge of conspiracy, he had also

been charged under Section 3(3) TADA, under Section 5 TADA

for keeping one AK-56 rifle plus two empty magazines and

committed an offence in respect of the same under Section 6

TADA, and under Section 3(4) TADA read with Section 212 IPC,

for harbouring criminals.


3.      After conclusion of the trial, the appellant (A-20) had been

convicted under Section 5 TADA, and awarded the sentence as

mentioned hereinabove.

        Hence, this appeal.



4.      Shri Sunil Kumar, learned senior counsel appearing for the

appellant (A-20), has submitted that conviction of the appellant (A-

20) under Section 5 TADA, was not warranted in view of the fact



                                                                6
                                                                    Page 6
that the recovery had not been proved in accordance with law. The

disclosure statement alleged to have been made under the provision

of Section 27 of the Indian Evidence Act, 1872 (hereinafter called

`Evidence Act') has not been strictly followed. The said alleged

disclosure statement did not bear the signature of the appellant (A-

20). There were two panch witnesses, only one has been examined.

The panch witness examined in the case had been a stock witness

in the police as he had appeared as a panch witness in other cases.

He was the resident of an area in close vicinity of the office of the

Crime Branch of the police department. The watchman of the

Ghanshyam building from which the recovery had been made, has

not been examined. None of the neighbours of that building have

been    examined      as     witnesses.     There     are     material

contradictions/omissions in the deposition of the witnesses. Even

the case number has wrongly been mentioned.                The L.A.C.

No.22/93    had   been     manipulated    and   it   was    shown       as

L.A.C.No.23/93. Even the recovery of the AK-56 rifle does not

give rise to the presumption of possession. It was further submitted

that the confession of the appellant (A-20) had been obtained by

coercion by severely beating him. Therefore, the appeal deserves

to be allowed.




                                                                    7
                                                                        Page 7
5.    On the contrary, Shri Mukul Gupta, learned senior counsel

appearing for the respondent, has vehemently opposed the appeal

contending that the confession of the appellant (A-20) has not been

relied upon by the Designated Court, therefore, it remains

inconsequential. Only one of the panch witnesses had been

examined in order to avoid multiplicity. Mere non-examination of

the other panch witnesses would not make the case of the

prosecution doubtful.    The recovery had been made strictly in

accordance with law and in case the recovery had been made at the

instance of the disclosure statement and from the place on which

the appellant (A-20) had control over, the presumption has rightly

been drawn, particularly in view of the fact that the appellant (A-

20) did not lead any evidence in defence. Thus, the appeal is liable

to be dismissed.


6.    We have considered the rival submissions made by learned

counsel for the parties and perused the record.


7.    Evidence against the appellant (A-20):
(a)   Confessional statement of the appellant (A-20)
(b)   Confessional statement of Murad Ibrahim Khan (A-130)
(c)   Deposition of Mohamed Ayub Mohamed Umar (PW-72)
(d)   Deposition of Sahadev (PW-181)
(e)   Deposition of Nagesh Shivdas Lohar (PW-356)


                                                                8
                                                                    Page 8
(f)   Deposition of Shivaji Shankar Sawant (PW-524)
(g)   Recovery of AK-56 rifle and two magazines



Confessional statement of the appellant (A-20):

8.    The confessional statement made by the appellant has not

been relied upon by learned Special Judge. Therefore, we are not

making any reference to it and it has to be ignored. More so, we do

not find any force in the submission made by Shri Sunil Kumar

that there had been two FIR's in respect of the same incident as a

large number of remand applications had been filed and it is

evident from the application that at initial stage it was shown as

L.A.C. 23/93, but a correction had been made though without

initials by the person who made the correction, but in his

subsequent application it had been shown as L.A.C. 22/93. More

so, the FIR number connecting this case is the same. Only one FIR

had been exhibited in the court as Exhibit 1284-A dated 18.4.1993

and it contains case no. L.A.C. 23/93. Therefore, we do not think

that the submission requires further consideration.

Confessional statement of Murad Ibrahim Khan (A-130):

9.    He had disclosed that he was fully acquainted with Yakub

Yeda and the appellant (A-20). Thus, he was having acquaintance

with hardened criminals.



                                                               9
                                                                   Page 9
Deposition of Mohamed Ayub Mohamed Umar (PW-72)

10.    He is a panch witness and a hawker, selling fruits on the

footpath near Crawford Market. He deposed that on 17.4.1993 at

about 12.45 hours, he was called to the police station by a

Hawaldar and there Constable, Shivaji Sawant, P.I. asked him

whether he would like to act as a panch witness in a case related to

the Bombay Blast. He consented for the same and one more panch

witness was also present in the said room. In his presence, accused

(A-20) disclosed his name as Salim Khan and he said in Hindi that

he was in possession of one AK-56 rifle and two magazines in his

workshop the recovery of which he would get effected. The

witness further corroborated the entire version of the recovery

      The witness further deposed that the police party alongwith

the accused (A-20) and the panch witnesses proceeded in the

police vehicle and towards the place disclosed by the appellant (A-

20) and entered the building pointed out by the appellant (A-20).

The said workshop had a loft and one staircase. One police officer

went on the loft. Thereafter, all other persons followed him. On

the directions of the appellant, cartons, scrap material and gunny

bag were found. The said gunny bag was turned out for emptying

the same. One AK-56 rifle and two magazines were taken out of



                                                                  10
                                                                  Page 10
the said gunny bag.      The AK-56 rifle and magazines were

separately wrapped in brown paper and three packets were

prepared and sealed separately. The packets were signed by him,

co-panchas and Shri Sawant.

      In cross-examination, the witness (PW.72) said that label put

up on the recovered goods had his signature and the goods had

been seized.

      He further denied the suggestion made by the defence that

he was the regular panch witness for the police. However, he had

admitted that occasionally, he had worked as such and he had been

a panch witness in other cases.


Deposition of Shivaji Shankar Sawant, P.I. (PW-524)

11.   He deposed that on 17.4.1993, he was interrogating the

appellant (A-20) who was arrested in C.R. No. 71/93 alongwith

some other police officials.      During the said interrogation, the

appellant (A-20) consented to make the voluntary statement and in

the presence of the panch witnesses and other police officials, the

appellant (A-20) made a disclosure statement in Hindi. He

recorded the same in the panchanama. The panchnama was read

over to the appellant (A-20) and the panch witnesses. It was signed

by the panch witnesses and countersigned by him (A-20). He



                                                                11
                                                                 Page 11
disclosed that the appellant (A-20) had consented to show the place

and take out AK-56 rifle and two empty magazines kept by the

appellant (A-20).

      He further deposed that panchnama of the recovery from the

workshop of the appellant (A-20) was correct. The same bears his

signature and the signatures of panch witnesses and it was

completed on 18.4.1993.

      He was a Police Inspector and working as a Dy. S.P. for

Protection of Civil Rights, Unit Bombay. He clarified the

correction regarding L.A.C.Nos. 22/93 and 23/93 and explained

that there was a correction on the L.A.C. numbers. However, he

had admitted that he had made that correction while registering the

said case though it did not bear his initials and he was not in a

position to give any reason for not putting his initials and

correction was necessary as there had been some typographical

error. He further stated that he arrested the accused formally in

L.A.C. No. 23/93 at 1.25 a.m. on 18.4.1993.

      In paras 65 and 66, he deposed that he did not register any

L.A.C. No. 22/93 and also did not know the name of officer who

had registered L.A.C. 22/93.




                                                               12
                                                                Page 12
Deposition of Sahadev (PW-181):

12.   He deposed that on 14.5.1993, he received requisition from

Worli Police station for recording the confessional statement of the

appellant A-20 and he had proved the said confessional statement.



Deposition of Nagesh Shivdas Lohar (PW-356)

13.   He has deposed that on 17.4.1993, he alongwith Shivaji

Sawant and one Head Constable interrogating the appellant (A-20)

in case No.C.R. 71/93. He corroborated that Shri Sawant had

asked the appellant (A-20) whether he wanted to make the

voluntary statement. Thereafter, appellant made the statement in

Hindi. He recorded the statement of the appellant in Hindi in the

panchnama which was marked as Exh. 378 and is the same

panchanama recorded by him about the statement of appellant (A-

20) between 17th and 18th April, 1993.


14.   The recovery of the AK-56 rifle and two magazines had

been made on 17th/18th April, 1993 and in respect of the same

panchanama Exh. 383 makes it clear that Farid Alam Rais Alam

Qureshi and Mohamad Ayub Mohamad Umar had been the panch

witnesses and in their presence the appellant (A-20) voluntarily

made a disclosure statement that the AK-56 rifle was kept in his



                                                                13
                                                                 Page 13
workshop. This panchnama was concluded at 23.10 hours on

17.4.1993. The panchnama has been signed by both the witnesses

as well as by the Inspector of Police, Shri S.S. Sawant. However, it

does not bear the signature of the appellant (A-20). It further

shows that in continuation of the same, the search was conducted

and it reveals that after making the disclosure statement, the police

had taken the accused alongwith the panch witnesses to a closed

workshop named as `Bona Parte' industry belonging to him. The

said workshop was having its shutter down and locked and in

absence of the key the police forced open the lock and opened the

same. The panchas alongwith the accused (A-20) and the police

party entered the workshop and found that there was no electricity

however, they found that the loft measured approximately 16' x

40' had a loft with a staircase. The appellant (A-20) led all of them

to the loft by staircase. On reaching there the appellant (A-20) took

out a box and scrap was removed. One AK-56 rifle and empty

magazines were found wrapped in gunny sack. The police

examined the said material and prepared the recovery memo. The

recovery memo contained one AK-56 assault rifle of folding type

butt, in rusted condition but had been greased and two magazines

of AK-56 assault rifle with no identification marks and numbers

and it was in rusted condition and greased.


                                                                 14
                                                                 Page 14
15.    The Designated Court after appreciating the evidence on

record came to the conclusion as under:


      "A-20 having not explained the reason of his
      knowledge of such a contraband articles being
      kept in a said factory of which he was partner the
      same will lead only to the inference of himself
      having kept the same. The same is obvious as A-20
      could have knowledge about the same in three
      contingencies i.e. a) he had kept the contrabands
      himself b) having seen somebody keeping the same
      there c) somebody had told him that the same
      being kept at the said place or having seen himself
      of such articles being kept at that place. In view of
      failure of A-20 to give any explanation regarding
      his knowledge being due to the reasons as stated
      in the aforesaid clauses b) and c) the same will
      lead to the conclusion as stated aforesaid. With
      regard to matter stated in clause c) aforesaid it
      can be additionally added that since the accused
      was also partner of the said shop allowing the
      remaining of such articles at the said place would
      also attract the liability for the same....]

      The same is the case regarding the submission
      advanced on the basis of A-20 at the time of
      recovery not having the key of the relevant gala.

      In light of the aforesaid discussion it is difficult to
      accept the submission canvassed that the evidence
      only establish the knowledge of A-20 of the
      contraband material lying at the said place and
      the same does not amount to himself being in
      conscious possession of the same. Needless to add
      that the inferences flowing from the statement
      made by A-20 consciously are not of a nature of
      denoting himself not being in conscious possession
      of contraband articles within the notified area...."




                                                                15
                                                                Page 15
16.   We have appreciated the evidence on record and the case

depends upon the veracity of evidence regarding recovery.

      There is sufficient material to show that the recovery had

been made at the behest of the appellant (A-20) from the factory

owned by a partnership to which he was the partner alongwith one

Surjit Singh. In such a fact-situation, he ought to have explained

the reason/source of his knowledge of such contraband articles

being kept in his factory.


17.   In the instant case, as he has not mentioned that he had seen

someone keeping the articles there, or somebody had told him

about that, or he had seen the things lying there, the only

reasonable inference is drawn that he himself had kept the same at

that place. Being a partner of the firm if he was having the

knowledge that some contraband were lying in his premises, he

ought to have informed the police if he had no guilty mind.


18.   So far as the explanation that at the time of recovery he did

not have the key, would not be enough to tilt the balance in his

favour. The fact that he did not have the key becomes totally

redundant, as no conclusion can be drawn that the appellant (A-20)

was not in possession of the said premises, and in such a fact-




                                                               16
                                                                Page 16
situation, it cannot be held that the appellant (A-20) was not in

conscious possession of the contraband material.


19.   We do not find any force in the submissions made by Shri

Sunil Kumar, learned senior counsel appearing for the appellant

(A-20), that the panch witness was the resident of Sitaram

building, which was opposite to the office of the Commissioner of

Police, or in a very close proximity of the same, and was working

on the footpath nearby the said building, and he had acted earlier

as a panch witness in test identification parade.


20.   The police when searching for a panch witness, need not go

to far off place of the police station as the panchnama is required to

be recorded in a close proximity of time, when the accused

apprehending his disclosure statement. Therefore, on such material

suspicion about the credential of the police or panch witnesses

cannot be doubted, unless there is some material to prove the

contrary. Had it been picked up from a far off place, criticism

could have been otherwise as to why the panch witness could not

be called from neighbourhood.



21.   The panch witness Mohamed Ayub Mohamed Umar (PW-

72) could not be held to be a tutored witness or acting at the behest


                                                                  17
                                                                   Page 17
of the prosecution only on the ground that he had also been the

witness in another case. It does not give a reason to draw inference

that he was a stock panch witness unless it is shown that he had

acted in such capacity in a very large number of cases.


22.   More so, it cannot be held that Mohamed Ayub Mohamed

Umar (PW-72) was not an independent witness, or acting under the

pressure of the police as he was carrying the business illegally

without any license. More so, the appellant (A-20) had made the

disclosure statement in his presence, he could explain the same.

Therefore, it could not be held that he was deposing falsely.


23.   We do not see any reason as to why his evidence should not

be relied upon. Minor omissions/contradictions regarding labeling

and sealing are not really the contradictions which go to the root

of the matter. Non-examination of the watchman of Ghanshyam

Industrial Estate, or omission of factor regarding electricity being

not mentioned in the panchnama, or non-collection of broken lock,

are the omissions of trivial nature, and do not warrant any undue

importance for doubting the evidence of recovery.



24.   Law does not require the witness to corroborate the evidence

of an independent witness. Thus, the evidence of Mohamed Ayub


                                                                18
                                                                 Page 18
Mohamed       Umar    (PW-72)    duly    corroborated    by    the

contemporaneous panchnama is trustworthy.


25.     As the appellant (A-20) made a statement leading to the

discovery of AK-56 assault rifle and two magazines having kept

in his workshop and the same had been found concealed on the

loft,   he cannot escape from the liability of    possessing and

concealing of the same, thus liable to be punished under Section 5

TADA. We see no reason to interfere with the conclusion drawn

by the learned Designated Court. The appeal is accordingly

dismissed.




                                                              19
                                                               Page 19
            CRIMINAL APPEAL NO.912 OF 2007


Aziz Ahmed Md. Ahmed Shaikh                          ...Appellant

                              Versus

State of Maharashtra                                ... Respondent




26.   This appeal has been preferred against the judgments and

orders dated 11.10.2006 and 31.5.2007, passed by Special Judge of

the Designated Court under the TADA for Bombay Blast, Greater

Bombay, in the Bombay Blast Case No. 1/93, by which the

appellant had been found guilty under Section 5 TADA and on that

count, he was sentenced to suffer RI for 5 years, and ordered to pay

a fine of Rs.25,000/-, and in default of payment of fine, to suffer

further RI for 6 months. He (A-21) was further convicted under

Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of the Arms

Act, but no separate sentence was awarded for the same.


27.   Facts and circumstances giving rise to this appeal are that :

A.    In addition to the first charge of general conspiracy, he was

charged for attending conspiratorial meetings at Dubai where

criminal conspiracy was discussed for distributing arms and

ammunition to co-conspirators and for providing funds to them.



                                                                20
                                                                 Page 20
Thus, he (A-21) was charged under Sections 3(3) and (4) TADA.

Further, he (A-21) was charged with unauthorisedly being in

possession of one U.S. Carbine 0.300 with three magazines and 28

cartridges in the notified area under TADA, between January 1993

and 5th April, 1993, and thus, charged under Sections 5 and 6

TADA, and further under the provisions of Sections 3 and 7 read

with Sections 25(-A), 25(1-B)(a) of the Arms Act.

B.     After the trial, the appellant (A-21) stood acquitted of all the

charges except charges under Section 5 TADA and under the Arms

Act.

       Hence, this appeal.



28.    Shri Mushtaq Ahmad, learned counsel appearing for the

appellant has submitted that the appellant had wrongly been

involved in the offence and convicted, though there is no sufficient

evidence on record, to involve the appellant in the crime. The

evidence particularly the confessional statement of the appellant

and the depositions of other witnesses particularly, Bhaskar Babu

Rao Jadhav (PW-57), Dayandeo Sonaji Geete (PW-320), Vijay

Meru (PW-561), and Shivajirao Kondiram Babar (PW-683) etc. are

not worth reliance. The confessional statement of the appellant




                                                                  21
                                                                   Page 21
cannot be relied upon, as it was not made voluntarily and

truthfully. The appeal deserves to be allowed.


29.   Shri Mukul Gupta, learned senior counsel appearing for the

State has submitted that the appellant was a close associate of Tiger

Memon (AA). He was fully involved in the entire episode

including the conspiracy. He has wrongly been acquitted for the

said charge. Thus, no interference is called for. The appeal is liable

to be dismissed.


30.   We have heard learned counsel for the parties and perused

the record.


31.   Evidence against the appellant (A-21):

(a)   Confessional statement of the appellant (A-21)
(b)   Deposition of Bhaskar Babu Rao Jadhav (PW-57)
(c)   Deposition of Dayandeo Sonaji Geete (PW-320)
(d)   Deposition of Vijay Meru (PW-561)
(e)   Deposition of Shivajirao Kondiram Babar (PW-683)


Confessional Statement of appellant (A-21):

32.   His (A-21) confessional statement had been recorded,

however, the same had been discarded by the Designated Court,

thus it cannot be considered. The evidence against the appellant

(A-21) remains the recovery of the aforesaid arms and ammunition.


                                                                 22
                                                                  Page 22
In fact, an FIR had been registered on 5.4.1993 at 6.10 p.m. that the

appellant (A-21) was found in possession of a Carbine of 30

Caliber of U.S. make, three magazines and 28 cartridges without

holding a fire arms license. It was further revealed that on that day,

the police got information that the appellant (A-21) who was a

resident of Pydhonie, Mumbai was scheduled to come near a

mosque opposite Pydhonie Police Station to acquire arms and

ammunition of foreign make. On that information the trap was

arranged near the Pydhonie Police Station. At about 1.30 p.m. the

trap party received the pre-decided signal, on which the appellant

(A-21) was searched, however he was not carrying any arms and

ammunition with him. He was brought to the DCB, CID office and

during interrogation he expressed his willingness to make a

voluntary statement. Therefore, two panchas were called from the

nearby area and in their presence, the appellant (A-21) disclosed

that he had acquired two Carbines of foreign make and some arms

and ammunition from one Mujahidan and one of the said Carbine

had been concealed at Naryalwadi, Mazgaon. The appellant (A-

21) led the police party and Panchas to         Naryalwadi Muslim

Cemetery (Kabaristan), Mazgaon and from the said graveyard he

took out one gunny bag duly tied with a rope. It had been

concealed in thickly grown trees and shrubs. On being examined,


                                                                 23
                                                                  Page 23
one single barrel Carbine, 28 cartridges and 3 magazines were

found. Panchnamas have made for his disclosure statement as well

as for recovery of the said articles.


Deposition of Bhaskar Babu Rao Jadhav (PW-57):

33.   He is a panch witness. He supported the case of the

prosecution and proved the disclosure statement of the appellant

(A-21) as well as the recovery made at his behest. He gave a full

description of how the appellant (A-21) made the disclosure

statement and how the recoveries were made. It corroborates the

version given in the FIR. However, in his cross-examination, he

(PW-57) stated that he (PW-57) had prepared the notes for

deposing in the court. He had given full details of the incident of

5.4.1993. In cross-examination he had admitted that he had also

acted as a panch witness in 3 more cases.


Deposition of Dayandeo Sonaji Geete (PW-320):

34.   His deposition revealed that he had accompanied the

appellant (A-21) at the time of recovery alongwith others. He

admitted in his cross-examination that he himself had not made any

entry in the Station Diary regarding the information received by

Senior P.I. Shri Kumbhar about the appellant (A-21).       He has

further deposed that he could not remember the manner in which


                                                               24
                                                                Page 24
the panch witness arrived in the office.     The said panch was

brought by the police havaldar. The appellant (A-21) had been

detained in the office of DCB, CID under suspicion due to the

receipt of information that he was to be at Pydhonie for acquiring

arms. He also deposed that the office of the Bombay Municipal

Corporation was inside the Naryalwadi Kabristan from where the

recovery had been made at the instance of the appellant (A-21). He

further proved the recovery and denied the suggestions that the

appellant (A-21) did not make any disclosure statement nor any

recovery had been made at his behest. He has also identified

appellant (A-21) in the court.


35.      The deposition of Dayandeo Sonaji Geete (PW-320) has

been fully corroborated by another police official Vijay Meru

(PW-561) in all respects. However, he has admitted that he had not

made any entry in the Station Diary regarding the information

received by Senior P.I. Shri Kumbhar, nor he was aware how the

panch witness arrived and who was the police havaldar who

brought the panch witnesses. However, he (PW-561) deposed that

he had detained the appellant (A-21) on information that he was to

be at Pydhonie for acquiring arms. Appellant (A-21) came there at

about 1.30 p.m. and on getting the signal, the police party pounced



                                                               25
                                                                Page 25
upon him and apprehended him. Appellant (A-21) was searched

but he was not carrying any weapon, however, one Ceiko watch,

his driving licence, labour card bearing his photograph of Arab

Emirates and some Dirhams and a silver ring were found with him.

The inventory of the said articles was prepared and they were

seized. The currency in Dirhams was of the value of Rs. 13 to 14

thousand Indian rupees. He was interrogated by A.C.P. Shri Babar

(PW-683) and Senior P.I. Shri Kumbhar. It was during his

interrogation that appellant (A-21) expressed his desire to make the

voluntary statement regarding fire arms. Thus, two panches were

called. The suspect was introduced to the panches.              The

memorandum panchnama was prepared in respect of his disclosure

statement.   It was signed by panch witnesses        and, thus, he

supported the recovery of the articles as narrated by the other

witnesses.   He had proved the complaint as well as the proforma

FIR on the basis of the said complaint. PW.561 registered the said

offence as LAC No. 18 of 1993 against the appellant (A-21) for the

offences punishable under Sections 3 and 7 read with Section 25 of

the Arms Act. Though he was competent to answer as to whether

the panch witnesses had been stock witnesses or whether there was

any discrepancy in drawing the memorandum panchnama but

defence did not ask any question during his cross-examination. He


                                                                26
                                                                Page 26
(PW-561) identified the appellant (A-21) on 24.4.1998 in the court

and he has denied the suggestion made by the defence that the

appellant (A-21) had not made any disclosure statement, nor the

recovery of arms had been made on his disclosure statement.


Deposition of Shivajirao Kondiram Babar, ACP (PW-683):

36.   In his deposition, he revealed that he had received the

information about appellant (A-21) that he would get the weapons

near a mosque opposite police station Pydhonie. He had received

the information from a secret source on telephone, he recorded the

same and passed on the same to the senior officers. He deposed

that on 5.4.1993 while he was in his office at Crawford Market, he

had received the information from his source on telephone to the

effect that appellant (A-21) involved in Bombay blast case was in

possession of fire arms and would be available at Pydhonie.

Immediately thereafter, he formed a team of police officers and

staff and went to the Pydhonie and arrested the appellant (A-21),

brought him to the office of DCB, CID at Crawford Market and he

(A-21) was interrogated. This witness further supported the

prosecution case that he made a desire to make confession

voluntarily etc. etc.




                                                              27
                                                               Page 27
37.   The recovered material was sent for FSL, and the report Ext.

1940-A was received. According to which US Carbine gun and 28

cartridges sent for FSL were examined. The carbine gun was found

in working condition, and it was capable of chambering and firing

the cartridges recovered in that offence.      So, the report was

positive.


38.   The appellant (A-21) made a complaint before the

Designated Court, and the court directed his medical examination.

He was examined and again sent on police remand.


39.   After   appreciating   the entire evidence,      the learned

Designated Court came to the conclusion as under:

      "Since criminal conspiracies are hatched in
      secrecy and it is extremely difficult to collect the
      direct evidence about the same the established
      principles of law indicate that the standard of a
      proof requiring such type of cases is loosened,
      unnecessary hard standards regarding the identity
      of a particular person can't be expected.. ...Thus,
      considering in proper perspective all the said
      evidence, no other conclusion will emerge of A-21
      having committed all the offences for which he is
      charged with on the account of commission of
      overt acts, but the same will lead any prudent man
      to the legitimate conclusion of A-21 having
      committed the aforesaid acts for the purposes of
      furthering the object of conspiracy."




                                                              28
                                                               Page 28
40.   In view of above, the Designated Court found him guilty and

imposed the punishment as referred to hereinabove. We find no

reason to interfere with the directions of the Designated Court. The

appeal is accordingly dismissed.




                                                                29
                                                                 Page 29
             CRIMINAL APPEAL NO. 1030 OF 2012


State of Maharashtra Through CBI                    ...Appellant

                               Versus

Ahmad Shah Khan @ Salim Durani & Anr.               ... Respondents



41.   This appeal has been preferred against the judgments and

orders dated 11.10.2006 and 31.5.2007, passed by the Special

Judge of Designated Court under the TADA, in the Bombay Blast

Case No.1 of 1993, by which the respondents (A-20 and A-21)

had been convicted under Section 3(3) TADA, and acquitted of the

main charge of conspiracy.


42.   Facts and circumstances giving rise to this appeal are that :

A.    In addition to the main charge of general conspiracy, the

respondents were additionally charged under Section 3(3) TADA

for facilitating the commission of terrorist activities etc., as they

had agreed to send persons for receiving training in arms,

ammunition and explosives and making arrangements by

harbouring    and   concealing   their   conspirators/terrorists    for

consideration of money from Tiger Memon (AA). They had further

been charged with receiving and keeping in possession of one AK-



                                                                   30
                                                                   Page 30
56 rifle and two empty magazines with intention to use and commit

terrorist acts. Further, under Section 5 TADA, for possessing the

said AK-56 rifle; under Section 6 of TADA, in respect of the same

AK-56 rifle; and lastly, for harbouring and concealing co-accused

Javed Chikna, Yakoob Yeda and others terrorists/co-conspirators at

Tonk, Rajasthan after the Bombay blast on 12th March, 1993.

B.    Both the respondents (A-20 and A-21) had been found guilty

for the offence punishable under Section 5 TADA, and awarded the

punishment of five years, and ordered to pay a fine of Rs.25,000/-

and, in default of payment of fine, to suffer further R.I. for six

months. But acquitted for the charge of conspiracy.

      Hence, this appeal.


43.   Shri Mukul Gupta, learned senior counsel appearing for the

appellant, has submitted that in spite of the ample evidence against

the said respondents (A-20 and A-21) in view of their involvement

in conspiracy, the court below committed the grave error in

discarding the same.   The evidence requires total re-appreciation

and the confessional statements of the respondents (A-20 and A-

21) and other co-accused have to be taken into consideration.

Therefore, the appeal deserves to be allowed.




                                                                31
                                                                 Page 31
44.   On the other hand, Shri Mushtaq Ahmad, learned counsel

appearing for the respondents (A-20 and A-21), has submitted that

their confessional statements have rightly been discarded as the

same had been recorded in utter disregard to the statutory

provisions. The appeal lacks merit and is liable to be dismissed.


45.   We have considered rival submissions made by the counsel

for the parties and perused the records.


46.   The confessional statements of Ahmad Shah Khan @ Salim

Durani (A-20), Shaikh Aziz Ahmed (A-21), Moiddin Abdul Kadar

Cheruvattam (A-48) and Ismail Abbas Patel (A-80) had been relied

upon by the prosecution. The same stood discarded completely by

the learned Special Judge on the ground that all the confessional

statements had been recorded by the Police officer in utter

disregard to the mandatory provisions of Section 15 TADA and

Rule 15 of TADA Rules, 1987. The police officer failed to inform

the said accused persons while recording their respective

statements that they were not bound to make confessional

statement and further failed to warn that, in case, they made

statements, the same would be used as evidence against them.

More so, the required certificate was not attached to the said

statements.


                                                                32
                                                                    Page 32
47.   This Court has laid down parameters for interference against

the order of acquittal time and again. The appellate court should

not ordinarily set aside a judgment of acquittal in a case where two

views are possible, though the view of the appellate court may be

the more probable one. While dealing with a judgment of acquittal,

the appellate court has to consider the entire evidence on record, so

as to arrive at a finding as to whether the views of the trial court

were perverse or otherwise unsustainable. The appellate court is

entitled to consider whether in arriving at a finding of fact, the trial

court had failed to take into consideration admissible evidence

and/or had taken into consideration the evidence brought on record

contrary to law. Similarly, wrong placing of burden of proof may

also be a subject-matter of scrutiny by the appellate court. In

exceptional cases where there are compelling circumstances, and

the judgment under appeal is found to be perverse, the appellate

court can interfere with the order of acquittal. The appellate court

should bear in mind the presumption of innocence of the accused

and further that the trial court's acquittal bolsters the presumption

of his innocence. Interference in a routine manner where the other

view is possible should be avoided, unless there are good reasons

for interference. The findings of fact recorded by a court can be

held to be perverse if the findings have been arrived at by ignoring


                                                                   33
                                                                    Page 33
or excluding relevant material or by taking into consideration

irrelevant/inadmissible material. The finding may also be said to be

perverse if it is "against the weight of evidence", or if the finding

so outrageously defies logic as to suffer from the vice of

irrationality.


48.    In view of the fact that no legal evidence which could be

relied upon by the prosecution is available on record, we do not

find any fault with the impugned judgment and order. The appeal

lacks merit and is liable to be dismissed. More so, the respondents

(A-20 and A-21) have filed appeals, as referred to hereinabove, and

they have served 4 years of sentence and deposited the fine.

       The appeal stands dismissed.




                                                                 34
                                                                  Page 34
           CRIMINAL APPEAL NO. 13l1 OF 2007


Yusuf Khan @ Kayum Kasam Khan                       ... Appellant

                             Versus

State of Maharashtra (through CBI, STF)             ... Respondent

                         AND

           CRIMINAL APPEAL NO. 417 OF 2011


State of Maharashtra                                 ...Appellant

                             Versus

Yousaf Khan Kasam                                   ... Respondent




Criminal Appeal No. 1311 of 2007


49.     This appeal has been preferred against the judgments and

orders dated 11.10.2006 and 31.5.2007, passed by the learned

Special Judge of the Designated Court under the TADA, in the

Bombay Blast Case No.1/93. The appellant (A-31) was charged

with general charge of conspiracy, and in addition thereto, he was

further charged for participating in landing and transportation of

the arms, ammunition and explosives smuggled into India by the

conspirators and co-accused at Shekhadi and further for



                                                              35
                                                               Page 35
transporting the RDX explosives in his motor tempo No. MCU

4409, which was part of the said consignment and unloaded the

same in the godown of co-accused Liyakat Ali Habib Khan (A-85)

at MIDC, Thane. The appellant (A-31) was convicted under

Section 3(3) TADA, and sentenced for 5 years rigorous

imprisonment, alongwith a fine of Rs. 25,000/-, and in default of

payment of fine, to suffer further RI for 6 months.


      Hence, this appeal.


50.   Ms. Farhana Shah, learned counsel appearing on behalf of

the appellant, has submitted that the appellant (A-31) has been

wrongly convicted for the offences under TADA and the Arms

Act. The confessional statements of the co-accused could not be

relied upon for the reason as it has been obtained by coercion and it

could not be held to be useful and truthful and, therefore, no worth

reliance. The panch witnesses could not be relied upon as they

were not the natural witnesses i.e. resident of the said area. Thus,

appeal deserves to be allowed.


51.   Per contra, Shri Mukul Gupta, learned senior counsel

appearing on behalf of the State, has opposed the appeal

contending that the stand fully established by the evidence on



                                                                36
                                                                 Page 36
record, particularly, because of the confessional statements of

appellant (A-31), A-64, A-128 and further stand corroborated by

the evidence of PW-2, PW-62 and PW-604. Thus, no interference

is called for.


52     We have considered the rival submissions made by learned

counsel for the parties and perused the record.


53.    Evidence against the appellant (A-31) :

(a)    Confessional statement of Nasir Abdul Kader Kewal (A-64)

(b)    Confessional statement of Shahnawaz Khan (A-128)

(c)    Deposition of Usman Jan Khan (PW-2)

(d)    Deposition of Padmakar Krishna Bhonsle (PW-62)

(e)    Deposition of Ajit Surve (PW-604)



Confessional statement of Nasir Abdul Kader Kewal (A-64):

54.    In his confessional statement, he (A-64) has revealed that he

had been associated in smuggling activities and had been

participating in landing and transportation alongwith co-accused.

He had earlier worked in Saudi Arabia and after coming back

settled in Bombay. His father-in-law Gulam Dastgir used to run the

business of Matka at Bandra and thus, he (A-64) also joined the

said business. Subsequently, he came in association of the


                                                                37
                                                                 Page 37
smugglers and started helping them in landing and transportation.

He participated in landing and transportation from Shekhadi on

7.2.1993 and said that the associates of Tiger Memon (AA) were

present including appellant (A-3l). At the instance of Tiger

Memon, the bags of arms and explosives brought from the trawler

were loaded in a tempo driven by appellant (A-31).


Confessional statement of Shahnawaz Khan (A-128):

55.   Confessional statement of Shahnawaz Khan (A-128) revealed

that he participated in landing on 7.2.1993. He (A-128) alongwith

co-accused brought the smuggled goods at Seashore and they

found that two tempos were already parked there. One tempo was

being driven by appellant (A-3l). The smuggled goods were being

loaded in both the tempos. Tiger Memon (AA), Javed Chikna (AA)

and Yeda Yakoob (AA) opened the sacks. The accused (A-128)

saw that it contained rifles, hand-grenades and bags containing

black coloured powder in it. Bullets were also there. Subsequently,

those tempos were unloaded at a building with a tower. The goods

were reloaded in the cavity of Commander jeeps.          The said

vehicles (Jeeps) left for Bombay. One tempo though empty

followed the jeep.




                                                               38
                                                                Page 38
56.   Usman Jan Khan (PW-2) identified the appellant (A-3l) in

the court. Usman Jan Khan (PW-2) deposed that appellant (A-3l)

participated in transportation of smuggled articles. He deposed that

on the relevant date they came out of the hotel after having the

meal and noticed that Javed Chikna (AA) and Yeda Yakoob (AA),

were standing near the white coloured tempo which was being

driven by appellant (A-3l). Tiger Memon(AA) told Usman Jan

Khan (PW-2) to take a seat in the said tempo with the appellant (A-

31). He (PW-2) sat in the tempo and they followed Tiger Memon

(AA) and reached Shekhadi Coast at 9 p.m. The smuggled goods

had already arrived at the Coast. The same were wrapped in gunny

bags. On the instruction of Tiger Memon (AA), the goods were

loaded in the two tempos, one of them was being driven by

appellant (A-31). The goods were brought by the said tempo to

Wangni Tower and were unloaded there. It was at Wangni Tower

that the goods were opened and the witness could see AK-56 rifles,

its rounds, handgrenades, pistols, magazines and RDX. They were

reloaded in the cavity of the jeeps parked there.


57.    Padmakar Krishna Bhonsle (PW-62) is the panch witness

of the recovery of the vehicle and identified the vehicle recovered




                                                                39
                                                                 Page 39
by Police Inspector, Anil Prabhakar Mahabole (PW-506). It was

recovered at the disclosure statement of the appellant (A-31).


58.   Ajit Shivram Surve (PW-604), the Police Officer attached

with DCB, CID who had been sent to get the samples prepared on

30.l1.1993 by P.I. Shri Pharande, and he corroborated the incident

of collection of samples as described by Asit Binod Ghorai (PW-

602). He also named 3 persons who collected the samples as

Kulkarni, Malve and Surve. He (PW-604) further deposed that he

prepared the panchnama which was duly signed by the panch

witnesses.


59.     One application under Section 457 of Code of Criminal

Procedure, 1973 was filed by the appellant (A-31) before the

Designated Court for release of the tempo and the same was

allowed. However, the court passed the order that the vehicle

should be thoroughly examined by experts as to whether it

contained any traces of the RDX. It was in view thereof, 3 experts

took samples on 30.11.1993 and the report dated 12.1.1994

detected traces of RDX. This was corroborated by panch witness,

Asit Binod Ghorai (PW-602).




                                                                 40
                                                                 Page 40
60.   After conclusion of the trial, the learned Special Judge came

to the conclusion that considering the confessions of the co-

accused, Nasir (A-64) and Shahnawaz (A-128), as well as the

statement made by Usman (PW-2) there can be no conclusion other

than the fact that the appellant (A-31) was involved in the Shekhadi

landing and the transportation operation.


61.   After going through the evidence on record i.e. the

confession of the co-accused (A-64 and A-128) as well as the

deposition of the various prosecution witnesses, we find no merit in

this appeal. Therefore, it is accordingly, dismissed.


Criminal Appeal No. 417 of 2011

62.   This appeal has been preferred against the judgment and

order dated 2.8.2007 passed by Special Judge of the Designated

Court under the TADA for Bombay Blast Case No.1 of 1993. The

charge against the respondent (A-31) had been framed mainly for

conspiracy. He was further charged with abetting and knowingly

facilitating the commission of terrorist activities during the period

of December, 1992 to April, 1993 by involving himself in landing

and transportation of arms, ammunition and explosives smuggled

into India by his co-conspirators and the role played by the

respondent (A-31) had been, transporting the said explosives


                                                                 41
                                                                 Page 41
landed at Shekhadi by his motor tempo No. MCU 4409 from

Alibagh to Thane, which was unloaded in the godown of co-

accused Liyakat Khan at MIDC.


63.   After the trial, the said respondent (A-31) had been

convicted for the main charge under Section 3(3) TADA for

transportation of the said explosives and awarded punishment of

five years with a fine of Rs.25,000/- but has been acquitted of the

charge of conspiracy.

      Hence, this appeal.


64.   Shri Mukul Gupta, learned senior counsel appearing for the

appellant has submitted that in addition to the general charge of

conspiracy, the respondent (A-31) had been charged for assisting

Tiger Memon (AA) and his associates in smuggling of arms,

ammunition, handgrenades and explosives and its landing and

transportation from Shekhadi on 7.2.1993. The respondent was

present at the instance of Tiger Memon and had transported the

said contraband in his vehicle. Therefore, as the respondent had

been aware of the nature of the contraband, he cannot escape the

liability of charge of conspiracy. Thus, the appeal deserves to be

allowed.




                                                               42
                                                                Page 42
65.   Mr. Mushtaq Ahmad, learned counsel appearing for the

respondent (A-31) has submitted that he is merely a transporter and

not an associate of Tiger Memon, so he could not be involved in

the charge of conspiracy.       Thus, the appeal is liable to be

dismissed.


66.   We have considered the rival submissions made by the

learned counsel for the parties and perused the evidence on record.


67.   The learned Special Judge dealt with the issue and came to

the conclusion that in spite of the fact that the respondent (A-31)

transported the contraband in his tempo and took the same to a far

distance but there was nothing on record to show that he had

knowledge of the kinds of goods transported in his tempo.


68.   The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


69.   From the evidence on record, it becomes clear that Yusuf

Khan Kasam (A-31) had participated in landing operation of

contraband goods at Shekhadi as he was one of the persons who

accompanied Tiger Memon and others and he had also been to

Wangni Tower alongwith other associates and contraband material

were loaded in tempo. The tempo was taken by him alongwith


                                                               43
                                                                Page 43
absconding accused to Mumbra as instructed by Tiger Memon

(AA). This version is duly supported/corroborated by Shah Nawaz

Khan (A-128) (Ex. 1569-A) and by the evidence of Usman (PW-

2). However, there is nothing on record to show that he was aware

as of what kinds of contraband were being transported in his

tempo.


70.   We are of the considered opinion that no further interference

is required and appeal lacks merit and is, accordingly, dismissed.




                                                                44
                                                                 Page 44
           CRIMINAL APPEAL NO. 1610 OF 2011


Uttam Shantaram Potdar                                ...Appellant

                               Versus

State of Maharashtra                                 ... Respondent

                                    AND

             CRIMINAL APPEAL NO.398 OF 2011


State of Maharashtra                                    ...Appellant

                               Versus

Uttam Shantaram Potdar                                ... Respondent




71.   Criminal Appeal No.1610 of 2011 has been preferred against

the judgment and order dated 23.5.2007 passed by Special Judge of

the Designated Court under the TADA, for Bombay Blast, Greater

Bombay, in the Bombay Blast Case No. 1/1993, by which the

appellant has been convicted under Sections 3(3) and 6 TADA.


72.   Criminal Appeal No.398 of 2011 has been filed by the State

against the order dated 2.8.2007 by which A-30 stood acquitted of

the first charge of larger conspiracy.


73.   Fact and circumstances giving rise to these appeals are that :


                                                                45
                                                                 Page 45
A.    In addition to the main charge of conspiracy, the appellant

(A-30) was charged for overt acts by abetting and knowingly and

intentionally facilitating the smuggling the landing of arms,

ammunition, hand grenades and explosives in India at Dighi,

Mhasla, District Raigad on 9.1.1993. This was done by providing

his truck No. MH-06-5533 and mobilizing men, material and

resources in connivance with the customs officers and police

officials by bribing them and facilitating the safe movements of

arms, ammunition and explosives by piloting the motor truck, thus

the offences punishable under Section 3(3) TADA and under

Section 6 TADA have been committed.

B.    Further, the provisions of the Arms Act, the Arms Rules, the

Explosive Act, 1884, Explosive Substance Act, 1908 and the

Explosive Rules, have also been contravened, by facilitating the

smuggling, landing and transportation of arms etc.

C.    After the conclusion of the trial, appellant (A-30) was

acquitted of the umbrella charge of conspiracy including of the

charge under Section 120B IPC etc. However, he was convicted for

charges under Sections 3(3) and 6 TADA. He has been awarded a

sentence to undergo R.I. for 10 years alongwith a fine of

Rs.50,000/- and in default of payment of fine, to further suffer RI

for one year under Section 3(3), and to undergo 14 years R.I.


                                                               46
                                                                Page 46
alongwith a fine of rupees one lakh and in default of payment of

fine, to further suffer RI for three years under Section 6 TADA.


74.   It is pertinent to mention that the appellant (A-30) has

already served 14 years imprisonment, and has also deposited the

fine. However, the appeal has been preferred by him only to get an

acquittal, so as to remove the stigma attached to being convicted

for offences as mentioned hereinabove. The State has also filed

appeal against his acquittal of the first charge of conspiracy.


75.   Shri C.U. Singh, learned counsel appearing for the appellant

has submitted that the appellant has wrongly been enroped in the

crime. The evidence on record falls short to prove the charges

against him. The confessional statements are not admissible as had

not been recorded in accordance with law. Thus, the appeal

deserves to be allowed, and the stigma of the appellant is to be

removed.


76.   Shri Mukul Gupta, learned senior counsel appearing for the

State has opposed the appeal contending that the appellant was a

close associate of Tiger Memon (AA) and his associates. He was

involved not only in landing and transportation, but in the larger

conspiracy. Thus, the State has filed appeal against the order of his



                                                                   47
                                                                   Page 47
acquittal on the charge of conspiracy. Therefore, the appeal filed

by the appellant is liable to be dismissed, and appeal filed by the

State deserves to be allowed.


77.   We have heard learned counsel for the parties and perused

the record.


78.   Evidence against the Appellant (A-30):

(a)   Confessional statement of appellant (A-30)
(b)   Confessional statement of Janardhan Pandurang Gambas (A-
      81)
(c)   Confessional statement of Jaywant Keshav Gurav (A-82)
(d)   Confessional statement of Mohd. Sultan Sayyed (A-90)
(e)   Confessional statement of S.S. Talwadekar (A-113)
(f)   Confessional statement of Mohd. Kasam Lajpuria
      @Mechanic Chacha (A-136)
(g)   Confessional statement of Jamir Sayyed Ismail Kadri (A-
      133)
(h)   Confessional statement of Salim Kutta (A-134)
(i)   Confessional statement of Faki Ali Faki Ahmed (A-74)
(j)   Deposition of Dilip Pansare (PW-97)
(k)   Deposition of Vyankatesh Hirba (PW-588)
(l)   Deposition of Dinesh Nakti (PW-95)



Confessional statement of appellant (A-30):

79.   The evidence against the appellant (A-30) is his own

confession made on 12th/15th of July, 1993.        He has stated

throughout that he was a landing agent and involved in smuggling.


                                                               48
                                                                Page 48
However, he had no knowledge that arms were being smuggled

and he participated in the same, taking it to be smuggling of silver

only. The confessional statements of co-accused do not speak of

the knowledge of the appellant (A-30) regarding the smuggling of

arms and they too, have only deposed about smuggling of silver.

      In view of the discussion in Criminal Appeal no.1728 of

2007, the date of the recording of the confession has no bearing so

long as the accused are being tried for the same crime in the same

trial. After the amendment, confessional statement of co-accused

Jamir Sayyed Ismail Kadri (A-133), Salim Kutta (A-134) and

Mechanic Chacha (A-136) had been recorded. Jamir Kadri (A-133)

stated in his confession on the basis of hearsay that his brother

Shabbir had told him that arms would be smuggled into the city,

and that the same was also within the knowledge of the appellant

(A-30).

          His confessional statement was recorded by A.K.

Chandgude, Deputy S.P (PW-670) wherein the appellant (A-30)

has stated that he was well acquainted with other smugglers like

Mohd. Dossa (AA) and Mechanic Chacha (A-136), and he had

been acting as a landing agent in smuggling activities for these

smugglers, for a long time. He (A-30) had also participated

alongwith the other co-accused     like Salim Kutta (A-134) and


                                                                49
                                                                  Page 49
Mechanic Chacha (A-136) in the smuggling of contraband and in

providing landing and transportation facilities on 3.12.1992.

      On 4.12.1992, he was contacted by Assistant Collector

(Customs) R.K. Singh (A-102) through a Customs Sepoy. On

reaching there at 8.00 pm, R .K. Singh, Assistant Collector,

Custom (A-102) called him in the cabin and asked about the

landing that had been made on the previous day upon replying he

was told to wait with Custom Inspector Gurav (A-82). He (A-30)

went to Mohd. Dossa on 5.12.1992 and explained to him , and to

Mechanic Chacha (A-136), the entire incident. Mechanic Chacha

(A-136) gave him (A-30), some money to be paid to the Mhasla

Custom Staff, the Shrivardhan Custom Staff, the Murud Custom

Staff and also to R.K. Singh (A-102). On the same day he (A-30)

handed over the money to some of them.

       Subsequently, it was revealed that the rates that were to be

paid to the police officers as well as the customs officers per

landing were fixed, and were also revised from time to time, and

the appellant (A-30) had been very much involved in making

the payment.

      Therefore, it is clear that he (A-30) enjoyed a higher status in

the hierarchy of the gang of smugglers, and that he had been

assigned an important role of negotiating with customs officers and


                                                                 50
                                                                  Page 50
police officers, to remove any hindrance in the said smuggling. It is

also clear that payments were made through him (A-30).

      The appellant (A-30) confessed, that on 9.1.1993 he,

alongwith co-accused Salim Kutta (A-134) and Mechanic Chacha

(A-136) had participated in the landing of smuggled goods and

when they were coming to Dighi Jetty, on the way he had also met

Gurav (A-82), who was driving his jeep. Thereafter, their vehicles

were intercepted by Patil (A-116) an Inspector, near Gondghar

Phata. In order to negotiate a safe passage for the smuggled goods,

Mechanic Chacha (A-136) offered him a sum of Rs.10 lakhs, and

when they were asked about the contents of the wooden boxes,

Mechanic Chacha (A-136) stated that the same contained watches.

On the said day, they had no cash and, therefore, Mechanic Chacha

(A-136) took out five silver bricks from the first truck and gave

them to Shri Patil, SI of Shrivardhan. The appellant (A-30) drove

Gurav's jeep (A-82) and came to Kanghar. There they shifted 170

bricks in the cavities of two trucks from Bombay. After loading the

smuggled goods in the truck, the appellant went to Shabbir's

residence alongwith Salim Kutta (A-134), Feroz and the driver.

They removed 80 bricks from the cavity of the first truck from

Bombay, and placed them in this truck. The appellant (A-30) left a

message at the residence of Patil (A-116), stating that he would


                                                                51
                                                                 Page 51
come with money on the night of the 10 th of the month. Thus, he

(A-30) subsequently met the said S.I. and it was decided that he

would pay a sum of Rs.5 lakhs to the Havaldars and Rs.2 lakhs to

the SI separately, and the said amount was paid by the appellant

(A-30).

      Further, in his confessional statement he has revealed that

the truck bearing No. MH-06-5533 which was used on 9.1.1993

did not belong to him. One Dilip Hegiste was the registered owner

of the said vehicle.

      Thus, it is clear that in his confessional statement, the

appellant (A-30) does not say anything to the effect that he had no

knowledge with respect to the smuggled arms.


Confessional statement of Janardhan Pandurang Gambas (A-
81):


80.   In his confessional statement he has revealed the presence of

the appellant (A-30) and also has deposed about his (A-30)

participation in the landing and transportation of the smuggled

goods. However, the goods were silver and gold, and it was the

appellant (A-30) who had taken the said witness for the landing.

He has stated that in addition to the silver and gold and rods kept in

the gunny bags, there were 30 black military coloured boxes which



                                                                 52
                                                                  Page 52
were unloaded from the trawler and Mechanic Chacha (A-136)

cautioned the labourer to handle the same with care, as the goods

were made of glass.


Confessional statement of Jaywant Keshav Gurav (A-82):

81.   He was working in the Customs Department at Mahad, and

it was his job to prevent illegal smuggling along the sea coast and

to nab the smugglers by gathering secret information against them,

and further, to register cases against the smugglers. He (A-82) has

stated that he had been helping smugglers by taking bribes and

facilitating their landing and also the transportation of the

smuggled goods. He had a settlement with Rahim Laundriwala that

he would be paid Rs.1,60,000/- for silver landing and that the

witness would be informed of such landings in advance. The

appellant (A-30) had met him in June 1992 and told the witness

that he was a landing agent working at Dighi Jetty and that he had

informed him (A-82) that there would be landing at Dighi Jetty of

silver, by Mohd. Dossa. The smuggled goods would come from

Dubai and he (A-82) would be paid Rs.65,000/- for the said

landing and appellant (A-30) had paid him this money after passing

the said smuggled goods. This witness has corroborated the

confessional statement of the appellant (A-30).



                                                               53
                                                                Page 53
      In respect of the incident dated 3.12.1992, i.e. his meeting

with R.K. Singh, Assistant Collector, Customs (A-102) where he

had bargained for a higher amount, as R.K. Singh (A-102) had told

him (A-82) that he must go to the appellant (A-30) and bring back

a sum of      Rs.2.5 lakhs. After discussing the same with the

appellant, he (A-82) went to Bombay and here he was paid Rs.2.5

lakhs which was to be paid to R.K. Singh (A-102) and Rs.1.5 lakhs

was to be paid to the Superintendent. He collected this money and

paid the same to the said officers.

      In respect of the incident dated 9.1.1993 the witness revealed

that he had been informed by R.K. Singh (A-102) that on the said

day, Mohd. Dossa would smuggle the goods and that the landing

would take place at Dighi Jetty and that he (A-82) must assist him.

On that day, the appellant met this witness and informed him

regarding the landing that would take place at the night at Dighi

Jetty and has thus corroborated the confessional statement of the

appellant (A-30) to the extent that they had in fact met in the said

manner and that it was the appellant (A-30) who had negotiated

with Patil (A-116). It has further been revealed that the appellant

(A-30) had driven the car of A-82.




                                                                54
                                                                 Page 54
Confessional Statement of Mohd. Sultan Sayyed (A-90):

82.   He is S.P. Raigad. In his confessional statement he has

corroborated the version of events provided by the appellant,

regarding the association of the smugglers with R.K. Singh,

Assistant Collector (A-102) and making regular payments of illegal

gratification. He has also stated that it was the appellant (A-30)

who had been negotiating with the customs and police officers to

revise the rates per landing. He (A-90) had accepted a bribe from

the appellant (A-30) of Rs.1 lakh out of the total amount of Rs.3.5

lakhs that was paid by the appellant to R.K. Singh (A-102).


Confessional Statement of SS Talwadekar (A-113):

83.   He has also corroborated the confessional statement of the

appellant regarding silver at Shekhadi sea-coast, in collusion with

the customs and police officers including J.K. Gurav (A-82). He

has revealed that he had been facilitating the smugglers in their

landings and transportation, and he has also accepted that he had

received Rs.1.6 lakhs as was decided earlier for the first landing,

for the second and also third landing. He has also admitted to

accepting the said amount.




                                                               55
                                                                Page 55
      So far as the incident dated 9.1.1993 is concerned, he has

named the appellant (A-30) who met him (A-113) and paid him a

sum of Rs.40,000/- out of the settled amount of Rs.1.25 lakhs.


Confessional Statement of Mohd. Kasam Lajpuria @
Mechanic Chacha (A-136):


84.   His statement corroborates the statement of Salim Kutta (A-

134) to the extent that Uttam Potdar (A-30) was the landing agent,

and that the accused had (A-136) met Uttam Potdar (A-30) at

Mhasla. He (A-136) further corroborated the version of events

which included the interception of contraband by the Shrivardhan

police; the negotiation of the bribe by Uttam Potdar (A-30); and

further the giving of five silver bricks to the police as security.



Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):

85.   He has stated that he is the elder brother of Shabbir. He

knew the appellant (A-30) who was at that time, working for

Mohd. Dossa. During a marriage in his family on 10.1.1993 when a

large number of his relatives were visiting, Salim Kutta (A-134)

and his friends Feroz and his brother Shabbir had come to his

house on a Yamaha Motor Cycle alongwith the appellant (A-30).

The appellant (A-30) left after having a discussion with his brother,



                                                                      56
                                                                      Page 56
Shabbir. Shabbir told him (A-133) that silver and weapons would

arrive at Dighi Jetty on that day, and this landing was to be

supervised by the appellant (A-30). After some time, Shabbir and

the other co-accused Salim (A-134), Feroz and the appellant (A-

30) started talking about the unloading of the goods to be brought,

and after discussing the same for a while, the appellant (A-30)

went out to make arrangements for the unloading of the concerned

goods. It was on that day that he learnt that the goods were being

sent by Mohd. Dossa.

      On 9.1.1993 at 7.00 p.m. Shabbir, Salim (A-134) and Feroz

left for Dighi Jetty to unload the smuggled goods. He (A-133)

stayed at home. They returned at 5 a.m. with three wooden boxes,

which were kept by them in the hall of the house, and he then slept

there. From their conversation, the witness learnt that there were

300 ingots of silver in total, each of them weighing 30 Kgs. and 19

ingots which could not be loaded in the truck, and the same were

then hidden in the open land of one Subedar who was at the said

time, living in Nairobi.

      On 10.1.1993, the appellant (A-30) came to his house during

the night and spoke to Salim (A-134) and Shabbir and went away.

From their discussion he (A-133) understood that silver and




                                                               57
                                                                Page 57
weapons had been smuggled at Dighi Jetty on the previous

night.

         He (A-133), alongwith others, brought 19 silver ingots and

15/20 green coloured bags containing tin boxes in a bullock cart,

and kept them in their house and then fell asleep. After about two

days, Afzal Gadbad, who works in the office of Mohd. Dossa in

Bombay, came there and took away the said silver ingots in a jeep.

However, the tin boxes remained there. After about a month, upon

being asked by Shabbir, the said tin boxes and bags were taken to

the first floor of the house of Ali Mian Faki, which was in close

proximity to their house. Janardhan Pandurang Gambas (A-81)

who is a resident of that area, and a fisherman who had participated

in the smuggling with Shabbir, the appellant (A-30) and Abdulla

Surati told the witness that the smuggled goods also contained

weapons alongwith silver ingots.


Confessional Statement of Salim Kutta (A-134):

86.      He has corroborated the confessional statement of the

appellant (A-30). However, he (A-134) did not say anything to

show that the appellant (A-30) had knowledge regarding the

contents of the boxes, particularly as regards the weapons. He

stated that the appellant (A-30) was present during the landing at



                                                                58
                                                                 Page 58
Dighi Jetty and had made arrangements for labour and a boat.

After the loading of the landed goods on vehicles, the appellant (A-

30) had also participated in negotiations with the police upon being

interception by them.


Confessional Statement of Faki Ali Faki Ahmed (A-74):

87.   He (A-74) corroborated the fact that the appellant (A-30)

was a landing agent and a resident of Mhasla, and that the appellant

(A-30) was well acquainted with Shabbir and Jamir (A-133) who

were involved in smuggling activities.


88.   Deposition of Dilip Pansare (PW.97) ­ In his deposition,

he reveals that he was a childhood friend of the appellant (A-30)

and had been working in a government department. However, he

had driven the truck containing smuggled goods. He has also

deposed that upon interception by Inspector Patil (A-116), a

discussion ensued for half an hour, amongst the appellant (A-30),

Gurav (A-82), Shabbir Kadri and Inspector Patil (A-116). He

identified the truck, though the owner and the driver of the truck

were neither made accused, nor witnesses in this case.



89.   Deposition of Vyankatesh Hirba (PW.588)- He was the

officer who had effected the seizure of the Tempo bearing number


                                                                59
                                                                 Page 59
MH-06-5533 on 12.4.93. The appellant (A-30) in his confession

has stated that the said tempo was used to transport contraband

items which were landed at Dighi Jetty.


90.   Deposition of Dinesh Nakti (PW.95) speaks of silver ingots

and wooden boxes. He identified the appellant in court


91.   A conjoint reading of the confessional statement and

deposition of witnesses reveal that appellant (A-30) had been an

associate of Mohd. Dossa (AA) and was aware of the fact that

Mohd. Dossa (AA) was involved in criminal activities. A-30 was

also associate of co-accused Mechanic Chacha, Shabbir, Salim,

Feroz and Jamir Sayyed Kadri.      A-30 has been working as a

landing agent for Mohd. Dossa and others by arranging boats and

coolies.   A-30 was called to Mhasla on 4.12.1992 wherein he

disclosed about the previous day landing to R.K. Singh (A-102),

Custom Officer. Subsequent to the said meeting, A-30 received

Rs.6.25 lacs from A-136 and paid Rs.1 lac to Mhasla Custom staff,

Rs.1.5 lacs to Shrivardhan Custom staff, Rs.1.25 lac to     R.K.

Singh, Custom Officer. A-30 made arrangements for boats and

coolies for another landing scheduled for 9.2.1993 and went to

Dighi Jetty on his motorcycle on 9.2.1993.       He met Custom

Inspector Gurav (A-82) and started driving jeep of Gurav. When


                                                             60
                                                              Page 60
the trucks carrying contraband smuggled goods were intercepted

by police team headed by PSI V.K. Patil, A-30 told Mr. Patil that

the money for earlier landing had been paid to Mali Havaldar who

was also member of that police team. It was in his presence that

Mechanic Chacha (A-136) offered Rs.10 lacs to PSI Patil and as

they did not have money, they gave him 5 silver bricks as a

security. A-30 alongwith others shifted 170 bricks in the cavity of

two trucks of Bombay and 80 silver bricks were transferred from

one truck to another at the residence of Shabbir (AA). He also

went to the residence of Shabbir.      A-30 left the message at

Shrivardhan Police Station that he would come with money on the

night of 10.2.1993. In his presence Rs.2 lacs were paid to Patil,

PSI at Shrivardhan Naka and Rs.5 lacs were paid to Havaldars. A-

30 received Rs.3 lacs from Feroz on the same night to hand it over

to Custom Officer of Alibagh and he handed it over to R.K. Singh

and Sayyed.


92.   After appreciating the evidence on record, the learned

Designated Court reached the following conclusions:



      "........However considering further events which
      had occurred at Ghonghar Patta i.e. interception of
      goods by police, allowing the same to be further
      proceeded after negotiations with smugglers,


                                                               61
                                                                Page 61
presence of A-30 who was one of the main person,
or effecting landing, his role in the said episode, it
is difficult to perceive that at the said juncture A-
30 would not have gathered the knowledge of
contraband material. Needless to add that in cases
of conspiracy it is difficult to except to have direct
evidence and the inference about certain aspects is
required to be drawn from established facts &
circumstances.

       Thus having regard to all the aforesaid facets
it is difficult to accept that at least at the said place
A-30 would not have gathered the nature of
contraband goods also sent along with smugglers.
It is true that the said further acts committed by A-
30 being in the nature of continuing job for which
he had agreed i.e. effecting the silver landing the
same may not make him liable for being party to
the conspiracy to commit the terrorist act or the
larger conspiracy for which the charge at head 1st
ly is framed. Such a conclusion is obvious as
hardly there exists any other material denoting that
alter completion of job of landing & transportation,
A-30 having committed any act furthering object
of ally conspiracy. However, still now the further
act being committed by A-30 being with an
expressed knowledge that the contraband material
was containing arms & ammunitions he will be
squarely liable for commission of offence u/s 3 (3)
of TADA. Similarly the quantity of the said arms
& ammunition and the further acts actually
committed by A-30 would also make him liable for
commission of offence u/s.6 TADA.

......... Thus considering the said aspect it will be
extremely difficult to accept that policemen would
not have been aware about the nature of said goods
in trucks which were in the said trucks i.e. silver
and arms & ammunitions as established by
evidence. Such an inference is inevitable as such
evidence pertaining to landing clearly denotes of
the material being of two different categories i.e.
boxes and bachkies i.e. bundles. Having regard to


                                                            62
                                                            Page 62
the same it is difficult to perceive that during
inspection of trucks at least parcels from each
category would not have been inspected by
policemen.

.......Having regard to aforesaid even assuming
that police party had permitted the said trucks to
proceed away without inspection then also they
cannot escape the liability arising out of said
illegal omission committed by them. In view of the
same the knowledge of the nature of contraband
goods will he required to be presumed for them.

        Now considering the liability of A-136 as
revealed from the earlier discussion but without
once again repeating the dilation made earlier it
can be said that the same having revealed that A-
136 had become aware about the nature of goods
after he was told regarding the same and the
direction of accused Mustafa Dossa by A-134. As
dilated earlier, it is clear that though A-136 had
continued with the said operation i.e. the operation
of smuggling for which he had agreed earlier and
in the process having committed the offence u/s.3
(3) of TADA still he cannot be said to be guilty for
the offence of conspiracy to which A-134 was said
to be party. Needless to add that considering the
acts committed by A-136, his liability remained
confined to having committed the offence u/s.3(3)
and Sec. 6 of TADA.

     The case of A-30 also appears to be similar to
that of A-136 i.e. himself being not aware since the
beginning of the goods to be smuggled being arms
& ammunitions and having acquired the
knowledge about same during the midst of
operation but in spite of the said knowledge having
continued the said operation giving rise to the
liability for commission of offence u/s. 3(3) & Sec.
6 of TADA. At the cost of repetition it will be
required to be added that A-136 and A-30 having
committed the relevant acts in the month of Jan.,
1993 on the dates on which even Tiger Memon


                                                       63
                                                       Page 63
      had not disclosed his intent regarding the places at
      which the explosions were to be committed in
      Bombay and themselves having not committed any
      act other than completing the smuggling operation
      for which they had agreed they cannot he held
      guilty for any offence of conspiracy though would
      he liable for commission of offences as stated
      aforesaid."


93.   The confession of A-134 does not show that the appellant

(A-30) was aware of the contents of the contraband goods were

arms and ammunition, either prior to the landing or thereafter.

However, considering the event of interception of the said goods

by the police and the presence and involvement of the appellant

(A-30) in negotiations with the police for clearing the said

smuggled goods, it is difficult to believe, that at the said time, the

appellant (A-30) did not have knowledge regarding the contraband

material.

      The confession of A-133 however reveals that he (A-133)

had overheard the appellant (A-30) discussing the contents of the

contraband after the items had landed.

      In case of conspiracy, it is difficult to find direct evidence

and thus, inference is required to be drawn from established facts

and circumstances.

      Hence, it is difficult to accept, that in the said circumstances

the appellant (A-30) was unaware of the nature of the smuggled

                                                                 64
                                                                  Page 64
goods. The acts that were further committed by the appellant (A-

30), were in the nature of continuing his job in effecting the

landing of silver, and the same may not make him liable as a party

to the conspiracy to commit terrorist acts. However, certain other

acts that were committed by him (A-30), with the express

knowledge that the contraband material did in fact contain arms

and ammunition, would make him liable for commission of offence

under Section 3(3) TADA. Furthermore, the quantity of arms and

ammunition, and the further acts committed by the appellant would

also make him liable for commission of offence under Section 6

TADA.


94.   The examination of the appellant (A-30) under Section 313

of Cr.P.C. reveals that he had assisted in the landing of goods at

Dighi Jetty on 9.1.1993, and that he had taken the stand of being

involved in the landings of silver even prior to the said event, and

that he did not know the nature of the goods that were landed in the

said landing.   The evidence of PWs 95 and 97 corroborates the

fact that landing had occurred at the said time and place. Their

evidence reveals that the goods were packed in boxes, or in green

coloured cloth bag that had been tied at the mouth, and that thus,




                                                                65
                                                                 Page 65
they were not aware of the contents. They had acted at the behest

of the appellant (A-30) for which they had received payment.


95.   The appellant (A-30) was aware that the smuggled goods

were arms and ammunition, and even after acquiring such

knowledge, he had continued the landing of the said smuggled

goods. This makes him liable for commission of offences under

Section 3(3) and 6 TADA.


96.   His (A-30) role is akin to that of Mechanic Chacha (A-136).

Thus, we do not find any force in the appeal and it is accordingly

dismissed.


97.   The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


98.   The evidence on record made it crystal clear that A-30 was

not only a close associate of Tiger Memon (AA) and acting as a

landing agent, but a man of confidence who could negotiate with

the police and customs officials to fix the amount of bribe for

facilitating the smuggling and transportation of the smuggled

contraband. He was a person who had negotiated with the police at

Gondghar Phata. He had been fully aware of the nature of

contraband, and in spite of coming to know that the contraband


                                                               66
                                                               Page 66
contained arms, ammunition and explosives, he continued to help

the smugglers. It is also evident that he had close association with

Jaywant Keshav Gurav (A-82), officer of the customs department,

who had been helping the smugglers by taking a bribe through A-

30. Therefore, in view of the above, we do not concur with the

findings of fact recorded by the learned Designated Court that A-

30 could not be convicted for conspiracy.


99.   In the facts and circumstances, the appeal filed by the

appellant (A-30) is dismissed, and appeal filed by the State through

CBI is allowed. Appellant (A-30) is convicted for the offence

under Charge I, and awarded the life imprisonment.              The

Designated Court is directed to take him into custody and send him

to Jail to serve out the remaining sentence, if any.




                                                                67
                                                                 Page 67
           CRIMINAL APPEAL NO. 1420 OF 2007


Mohd. Rafiq @ Rafiq Madi Musa
Biyariwala                                             ...Appellant

                               Versus


State of Maharashtra                                   ... Respondent

                               AND


           CRIMINAL APPEAL NO. 1031 OF 2012


The State of Maharashtra thr. CBI                         ...Appellant

                               Versus


Mohd. Rafiq @ Rafiq Madi Musa Biyariwala                ... Respondent


Criminal Appeal No. 1420 of 2007

100.   This appeal has been preferred against the judgment and

order dated 31.5.2007, passed by Special Judge of the Designated

Court under the TADA for Bombay Blast, Greater Bombay, by

which the appellant (A-46) has been convicted under Section 3(3)

TADA. However, Criminal Appeal No.1031 of 2012 has been

filed by the State against the said judgment as A-46 stood acquitted

of the charge of larger conspiracy.




                                                                68
                                                                 Page 68
101. Facts and circumstances giving rise to this appeal are that:

A.    In addition to the main charge of conspiracy, the appellant

(A-46) was charged for participation in landing and transportation

of arms, ammunition, hand grenades and explosives like RDX to

be used in Bombay blast on 12.3.1993.

B.    He was further charged for abetting and participating in

terrorist activities as the appellant participated in the month of

February 1993 alongwith co-conspirators in the landing of arms,

ammunition and explosives at Shekhadi.            Further he (A-

46) alongwith co-accused Asgar Mukadam drove other co-accused

to Sahar Airport who had gone for training to Pakistan. Further he

delivered motor vehicle having arms, ammunition and explosives

at the residence of Amjad Aziz Meharbux and thereby committed a

separate offence punishable under Section 3(3) TADA.

C.    The appellant was further charged under Section 6 TADA

for possessing and transporting arms, ammunition and explosives

like hand grenades and detonators from Shekhadi to Bombay in an

unauthorized manner.


102. The appellant (A-46) has been convicted under Section 3(3)

TADA, and given a sentence of R.I. 5 years and a fine of

Rs.25,000/-and in default of payment of fine, to suffer further



                                                                69
                                                                Page 69
imprisonment of six months; under Section 6 TADA, a sentence of

R.I. 7 years and a fine of Rs.50,000/- and in default of payment of

fine, to further suffer one year RI.         Both the sentences were

directed to run concurrently.

      Hence, this appeal.


103. Shri Mushtaq Ahmad, learned counsel appearing on behalf

of the appellant, has submitted that the appellant (A-46) has

wrongly been enroped in the crime, he was no where involved. The

confessional statements of the appellant as well as the co-accused

could not be relied upon as it has been obtained by coercion and it

could not be held to be useful and truthful. More so, the learned

Designated Court failed to appreciate the evidence in correct

perspective. Therefore, appeal deserves to be allowed.


104. Per contra, Shri Mukul Gupta, learned senior counsel

appearing on behalf of the State, opposed the appeal contending

that the appellant had been deeply involved, not only in the landing

and transportation of the smuggled goods, but being a very close

associate of Tiger Memon(AA), was involved in the conspiracy

also for which he has wrongly been acquitted. The evidence on

record fully established his involvement in the crime. Thus, appeal

lacks merit and is liable to be dismissed.


                                                                70
                                                                 Page 70
       We have heard learned counsel for the parties and perused

the record.


105.     Evidence against the appellant (A-46):

(a) Confessional statement of Rafiq Madi(A-46)
(b) Confession of Asgar Yusuf Mukadam @ Munna (A-10)
(c) Confession of Abdul Gani Ismail Turk (A-11)
(d) Confession of Parvez Nazir Ahmed Shaikh (A-12)
(e) Confession of Dawood Taklya Mohammed Phanse (A-14)
(f) Confession of Dadabhai (A-17)
(g) Confession of Shahnawaz Abdul Kadar (A-29)
(h) Confession of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-
   64)
(i) Confession of Altaf Ali Mustaq Ali Sayed (A-67)
(j) Confession of Gulam Hafiz Shaikh @ Baba (A-73)
(k) Confession of Mubina @ Baya Moosa Bhiwandiwala (A-96)
(l) Confession of Parvez Mohmed Parvez Zulfikar Qureshi @
   Parvez Kelewala (A-100)
(m) Deposition of Usman (PW-2)


Confessional statement of Rafiq Madi(A-46) :

106.     In his confessional statement, appellant (A-46) has deposed

that he used to work as driver for Tiger Memon's family and

sometimes, when he was unemployed, used to sell clothes or

cassettes on footpath. He worked as driver of Mushtaq Abdul

Razak Memon @ Ibrahim @ Tiger for about 10-12 months. Tiger


                                                                71
                                                                 Page 71
Memon (AA) had been involved in Hawala business and

smuggling of gold and silver from Dubai.        The appellant (A-

46) used to participate in landing and transportation of the

smuggled goods and was being paid Rs. 2500/- as salary per month

and Rs.3000 to 4000 per landing in addition to salary. Tiger's

office stood closed due to riots in Bombay in December 1992 and

January 1993, thus, the appellant lost his work like a large number

of other youths. One day when he went to the house of Tiger for

collection of his salary for December, 1992 he (A-46) was directed

to go out for Tiger's work. Appellant (A-46) was not willing to go

for the work as he was not feeling well, however being poor he

went because of offer of money. Appellant (A-46) went in a jeep

alongwith Tiger, Yakub Yeda, Javed Chikna, Usman and his

associates for landing of smuggled goods. Dawood Taklya (A-14)

was present there alongwith his associates. They waited the whole

night but the smuggled goods did not come. They came back and

stayed in a Hotel and in the evening they went to the landing point

but the articles did not arrive that night also.    They came to

Alibaug and stayed in a hotel for 2-3 days. On 3.2.1993 night, the

appellant alongwith others proceeded from Alibaug and reached

the place of landing. Tiger and Yakub were also there.




                                                               72
                                                                Page 72
         Appellant (A-46) after taking the smuggled goods, which

was in boxes came to the Tower in the jeep at 11.30 p.m. On being

asked, Shafi told that the boxes contained electronic goods. On

4.2.1993 appellant (A-46) went to the house of Dadabhai (A-17)

where Shafi asked the appellant (A-46) to load the articles from the

tower.     Appellant (A-46) alongwith Dadabhai (A-17) and Shafi

reached the tower with a truck and Maruti van and loaded the truck

with 59 gunny bags and covered the same with empty gunny bags.

Shafi left from there taking the truck. The appellant (A-46) and

Dadabhai (A-17) went to the house of Dadabhai (A-17) and slept

after having the dinner. On 5.2.1993 the appellant (A-46) went to

Mahad and then to Nagothane in Maruti van. The vehicle being

driven by Shafi was left at Nagothane. Appellant (A-46), Shafi and

Dadabai (A-17) left for Alibaug to bring Mohd. Hussain. From

there Shafi left by jeep instructing the appellant (A-46) to reach at

Bandra Talab with Maruti Van near in the evening. There the

appellant (A-46) would exchange the van with a jeep given by

Riaz. On 6.2.1993 the appellant (A-46) met Anwar at 11 O'Clock

in the morning near his house.        They went to bungalow of

Meharbux (Discharged Accused) at Mahim in that vehicle. The

appellant (A-46) was asked to remove the jeep and park it at the

house of Meharbux.


                                                                73
                                                                 Page 73
Confession of Asgar Yusuf Mukadam @ Munna (A-10)

107. Asgar Yusuf Mukadam @ Munna (A-10) in his confessional

statement has involved appellant (A-46) to the effect that he had

been working for Tiger Memon (AA) and he dropped the co-

accused (A-10) to Sahar Airport from where A-10 alongwith others

went to Dubai.


Confession of Abdul Gani Ismail Turk (A-11)

108. Abdul Gani Ismail Turk (A-11) has disclosed in his

confessional statement that appellant (A-46) participated in the

landing at Mhasala made by Tiger Memon (AA).



Confession of Parvez Nazir Ahmed Shaikh (A-12)

109. Parvez Nazir Ahmed Shaikh (A-12) stated in his

confessional statement that appellant (A-46) was present at Al

Husseini Building and money had been paid to (A-46) in his

presence.



Confession of Dawood Taklya Mohammed Phanse (A-14)

110. Dawood Taklya Mohammed Phanse (A-14) disclosed that

appellant (A-46) told him that his ticket had been booked and he

had to leave for Dubai on the same day.



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                                                              Page 74
Confession of Dadabhi (A-17)

111. Dadabhai (A-17) disclosed that he alongwith appellant (A-

46) and Shafi facilitated and participated in transfer of smuggled

goods from Wangni Tower to Bombay.


Confession of Shahnawaz Abdul Kadar (A-29)

112. Shahnawaz Abdul Kadar Qureshi (A-29) disclosed that

appellant (A-46) was among the persons who participated in

several landings. Appellant (A-46) had come to his residence and

told him that his tickets were ready. He (A-46) was present at the

airport and a sum of Rs. 50,000/- was paid to him for distribution

among other co-accused.


Confession of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-
64)


113. Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) has

disclosed that in January, 1993 he had seen appellant (A-

46) waiting for co-accused and appellant (A-46) was always seen

with Tiger Memon (AA) and used to communicate Tiger's

messages. A-46 was also present at the Al-Husseini Building in

the intervening night between 11th/12th March, 1993 when the RDX

was filled up in the vehicles.




                                                              75
                                                               Page 75
114. Bashir Ahmed Usman Gani Khairulla (Bashir Electrical) (A-

13), Altaf Ali Mustaq Ali Sayed (A-67), Gulam Hafiz Shaikh @

Baba (A-73), Gul Mohammed @ Gullu Noor Mohmed Shaikh (A-

77), Mubina @ Baya Moosa Bhiwandiwala (A-96) and Parvez

Mohmed Parvez Zulfikar Qureshi @ Parvez Kelewala (A-100)

have also named the appellant A-46 giving details of his

involvement in landings etc.


Deposition of Usman Jan Khan (PW-2)

115. Usman Jan Khan (PW-2) has identified the appellant (A-46)

in court and also disclosed that he was active participant in landing

and transportation.



116. The Designated Court after appreciating the entire evidence

on record came to the conclusion that the appellant (A-46) actively

participated in the Shekhadi landing and transportation operation of

contraband goods i.e. AK-56 rifles, ammunition, RDX etc.

smuggled into the country by Tiger Memon (AA). Confession of

the appellant (A-46) revealed that he was in employment of the

Memon family, however he had been to Shekhadi landing. It could

not be accepted that the appellant (A-46) was not aware of illegal

business of Tiger Memon (AA)          or about the nature of the



                                                                 76
                                                                 Page 76
contrabands smuggled into India. The presence of the appellant (A-

46) at the place where the goods were exchanged, at Wangni

Tower and concealed into cavities of vehicles for transportation to

Bombay, shows that he was a person of very close confident of

Tiger Memon (AA). The appellant (A-46) handed over a motor

vehicle containing arms and ammunitions at residence of Amjaz

Abdul Aziz Meherbux (A-68).

      Confessions    of    co-accused    clearly   established   the

involvement of the appellant (A-46) along with Asgar (A-10) for

taking co-accused persons, who were sent for training to Pakistan

via Dubai, though he may not be aware of the purpose for which

the co-accused were sent to Dubai.

      In view of the above well reasoned judgment, we do not find

any evidence on record to warrant interference in the conclusion

drawn by the Designated Court. The appeal lacks merit and is

accordingly dismissed.



Criminal Appeal No. 1031 of 2012

117. This appeal has been filed by the State against the acquittal

of the respondent of the charge of larger conspiracy.




                                                                 77
                                                                 Page 77
118. On the first charge, the learned Designated Court considered

the entire evidence as referred to hereinabove and came to the

conclusion:

       "However hardly there being cementing material
      for establishing nexus of A-46 with conspiracy
      for which he is charged with and material having
      remained confined of himself having committed
      of aforesaid offences, it will be difficult to hold
      him liable for conspiracy for which he is charged
      with. The same is obvious as hardly there is any
      material indicating A-46 having committed any
      other acts because of which he is said to have
      further object of conspiracy for which he is
      charged with."


119. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.



120. In view of the above, the appeal is liable to be dismissed.




                                                                   78
                                                                   Page 78
         CRIMINAL APPEAL NOS. 675-681 OF 2008

Suleman Mohamed Kasam Ghavte & Ors.                     ...Appellants

                               Versus

State of Maharashtra thr. STF, CBI Bombay              ... Respondent


121. These appeals have been preferred against the judgments and

orders dated 11th, 12th 16th, 17th October, 2006, 23rd /24th May, 2007

and 1st June, 2007 passed by the Special Judge of the Designated

Court under the TADA in the Bombay Blast Case No. 1 of 1993,

by which the appellants have been convicted. In view of the fact

that each appellant being assigned different acts, has been charged

differently and has been awarded a different sentence, it is

desirable to deal with the case of each appellant separately to

certain extent.


I.     Suleman Mohammed Kasam Ghavte (A-18):

122. The appellant(A-18) has been convicted on two counts under

Section 3(3) of TADA, and has been awarded 7 years rigorous

imprisonment alongwith a fine of Rs. 25,000/- and in default of

payment of fine, to suffer further RI for 6 months on each count.




                                                                 79
                                                                    Page 79
123. In addition to the first charge of conspiracy, he has been

charged for the following offences:

(i)    That he has participated alongwith the other conspirators in

the landing and transportation of arms, ammunition and explosives

at Shekhadi, and has smuggled goods into the country to be used

for the commission of terrorist acts.

(ii)   That, he alongwith co-accused Abdul Rehman Shaikh (A-

28) and others transported RDX explosives in Motor Tempo No.

MMP-4799 from Shekhadi to Panvel, and the same contained

goods that were smuggled into the country by Tiger Memon (AA)

and his associates for the purpose of committing terrorist activities.

(iii) That he participated in weapons' training at Sandheri/Borghat.

       Thus, he has been charged under Section 3(3) TADA and

has been convicted and sentenced as mentioned hereinbefore.



124. Ms. Farhana Shah, learned counsel appearing for the

appellant has submitted that the appellant was unaware of the fact

that the items being landed were those other than silver, and that he

realized this fact only later. Furthermore, his confession had not

been made voluntarily, but under threat and coercion. Thus, the

appeal deserves to be allowed.




                                                                  80
                                                                   Page 80
125. On the contrary, Shri Mukul Gupta, learned senior counsel

appearing for the State has submitted that the appellant has been

named by several witnesses of the Shekhadi landing. Moreover, the

said vehicle had been seized and the FSL report was also positive

as regards the presence of RDX. Therefore, the appeal deserves to

be dismissed.


126. We have heard learned counsel for the parties and perused

the record.


127.Evidence against the appellant (A-18):

(a)   Confessional statement of Suleman Mohd. Kasam Ghavte (A-18)

(b)    Confessional statement of Abdul Gani Ismial Turk (A-11)

(c)    Confessional statement of Rusi Framroze Mulla (A-125)

(d)    Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)

(e)    Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)

(f)    Confessional statement of Liyakat Ali Habib Khan (A-85)

(g)    Confessional statement of Abdul Gafoor Parkar (A-17)

(h)    Deposition of Babydas Vasu (PW-290)

(i)    Deposition of Pradeep S. Dalvi (PW-293)

(j)    Deposition of Abdulmunaf A. Mahimi (PW-294)

(k)    Deposition of Asit Ghorai (PW-602)

(l)    Deposition of Ajit Surve (PW-604)


                                                               81
                                                               Page 81
(m)   Deposition of Moreshwar Thakur (PW-469)



128. Confessional Statement of Suleman Mohd. Kasam
     Ghavte( A-18):

      In his confessional statement recorded on 18.4.1993 and

20.4.1993, the appellant has disclosed that he had been working as

a driver. He has stated that he knew of a person named Anwar, who

had lived in close proximity to his house right from his childhood.

A relative of the appellant (A-18) had asked him whether he

would travel to Ajmer Sharif along with Anwar in a Maruti Car. He

had thus gone to Ajmer driving the said vehicle with Anwar, who

had been working with Tiger Memon (AA) and was also being

paid by him. A tempo bearing No. MMP-4799, belonging to a

decorator was given to the appellant (A-18) on 5.2.1993. The said

vehicle had been driven by him to take Sayyed Abdul Rehman

Shaikh (A-28) and Abdul Gani (A-11) to Mhasla. Dawood Taklya

(A-14) and Dadabhai (A-17) were already present at Mhasla. Fifty-

sixty packets were loaded into the said vehicle. The said packets

were dug out from the land. When the appellant (A-18) touched

these packets, he realised that they did not contain silver smuggled

from abroad. After collecting the aforementioned goods, he left for

Bombay alongwith co-accused (A-55). When they reached Panvel,



                                                                82
                                                                 Page 82
he realized that Tiger Memon (AA) had also come there in a

Maruti car, and as per his instructions, they had then driven to the

house of Dawood Taklya (A-14) in Mhasla in order to leave the

tempo there. After some time, the appellant (A-18) had returned to

Bombay, alongwith Gani (A-11) and others. After 2-3 days on

9.2.1993, he had gone to Mahad driving the said vehicle and had

reached there at noon. He had seen a Maruti car and two jeeps

parked there, and also saw Tiger Memon (AA), Yakub Haji,

Anwar, Javed Chikna, Gani, Shafi and 5-6 other boys. Shafi asked

the appellant (A-18) to stop the tempo at a petrol pump situated

between Goregaon and Madgaon.         At about 6 o' clock in the

evening, two boys had come there in a tempo, and had asked the

appellant (A-18) to take the said tempo to the Mhasla tower. The

appellant (A-18) had then taken the vehicle to Mhasla tower and

had reached there at about 9.30 pm. The accused Anwar, Tiger

Memon (AA), Shafi, Gani, Dawood Taklya (A-14), Dadabhai (A-

17), Javed Chikna and a few other persons had also come there at

about 3.00 A.M. Upon the instructions of Tiger Memon (AA), the

appellant (A-18) had then taken the vehicle to Chilpara Kalyan,

where he had arrived reached at noon. The appellant (A-18) was

then asked to leave the jeep at the house of Anwar. He reached the

house of Anwar at about 4.00 P.M., left the vehicle there and was


                                                                83
                                                                Page 83
paid a sum of Rs.5000/- for the two trips that had been made by the

appellant (A-18). From the conversation of Anwar, Tiger Memon

and his partner, the appellant (A-18) had understood that the goods

which were in the said vehicle were not silver, but something else.

After he learnt that the aforementioned accused had been

smuggling something other than silver and gold, the appellant (A-

18) had stopped working for Anwar.


129. Confessional Statement of Abdul Gani Ismail Turk (A-11):

      Abdul Gani Ismail Turk (A-11), in his confessional

statement has stated that the appellant (A-18) had been

participating in smuggling activities with his consent, and that he

had known what was being smuggled. On 7 th /8th February, 1993,

he (A-11) had gone to the house of Tiger Memon at the Al-

Husseini building in Mahim. Tiger Memon had then taken him to

the house of Anwar (AA), where they had met two other persons

and he had learnt that the said people were Sayyed Abdul Rehman

Shaikh (A-28) and the appellant (A-18), and that the two had a

tempo with them.    Tiger Memon had given him one lakh rupees

and had asked him to go with the appellant (A-18) and to pay the

said amount to Dawood Taklya (A-14) and to return with a

chemical i.e. "black soap". The said "black soap" was the same



                                                               84
                                                                Page 84
chemical that had been brought to the tower on the night of 3 rd

February, 1993.    He (A-11) alongwith the appellant (A-18) and

Sayyed Abdul Rehman Shaikh (A-28) had left Mahim at midnight,

and had reached the tower the next day at about 11 A.M. An

amount of rupees one lakh that had been given by Tiger Memon

(AA), was handed over to Dawood Taklya (A-14). The appellant

(A-18) along with Abdul Gani Ismial Turk (A-11), and Sayyed

Abdul Rehman Shaikh (A-28) had then loaded about 59 bags of the

said chemical into the tempo that evening, and had thereafter, left

for Bombay. They reached the Welcome Hotel at Panvel at about

11-12 o' Clock at night. They had met Tiger Memon (AA) there

and he (A-11) and the appellant (A-18) were directed to instruct

Dawood Taklya (A-14) to keep some persons ready for work.

They had conveyed the said message to Dawood Taklya (A-14).

Dawood Taklya (A-14) had sent his son Sarfaraz (A-55) alongwith

the appellant (A-18), Abdul Gani Ismail Turk (A-11) and Sayyed

Abdul Rehman Shaikh (A-28) to Bombay.



130. Confessional Statement of Rusi Framroze Mulla (A-125):

          He has corroborated the prosecution's version of events

regarding the transportation of smuggled goods from Shekhadi to

Panvel.


                                                               85
                                                                Page 85
      Thus, in their confessional statements the aforesaid accused

persons have revealed that the       appellant (A-18) had fully

participated in the landing and transportation of smuggled goods,

which included weapons and not just silver and gold.


131. Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12):


      He (A-12) in his confessional statement has revealed that he

had been working with Tiger Memon (AA) in the execution of

hawala transactions and that he had been paying money to persons

as was directed by Tiger Memon (AA) from time to time. After the

Bombay riots he could not attend the office of Tiger Memon (AA)

as the same had been closed. During this period he (A-12), has

stated that he, alongwith Ajgar were staying in Shaffi's house and

that he would call the house of Tiger Memon's at the Al Husseini

building intermittently, but upon his doing so, he was always told

that there was no work. Upon the instruction of Tiger Memon (AA)

in January, 1993 he had gone to Mhasla and had met Dawood

Taklya (A-14) and had also participated in the landing. The

smuggled goods were brought from the jetty to the Wangni tower.

The men employed by Javed and Yakub who had come from

Bombay had then opened the boxes which contained bullets,

revolvers, pistols etc. All the contraband were shifted into false


                                                              86
                                                               Page 86
cavities in the jeeps and tempos that had been organized, and

which thereafter, departed for Bombay. One such jeep had been

entrusted to him (A-12). He along with Nasir had been told by

Tiger Memon (AA) to wait at Khandala, and one contact number

had been given to them. At Khandala, they had gone to Hotel New

Taj. A-12 had then tried to contact Tiger Memon (AA) over the

telephone, using the said contact number at Hotel Big Splash,

Alibagh. However, he was only able to speak to Mohd. Hussain

who had advised A-12 to wait there, and had stated that A-18

would come there in the morning. Consequently, the appellant (A-

18) had come there with Imtiyaz in the afternoon. With them, A-12

had gone to Bombay, and had been dropped off at Bandra Talab

and the appellant (A-18) and Imtiyaz had also left from there.


132. Confessional Statement of Sayyed Abdul Rehman Shaikh (A-28):


          His confessional statement reveals that on 5 th February,

1993 at about midnight, when he (A-28) was returning from

shooting, the appellant (A-18) had met him on the road itself and

had told him (A-28) that Tiger Memon (AA) was calling for him.

Tiger Memon (AA) was standing nearby, and hence he met Tiger

Memon who had told him to go to Mahim. Yeda Yakub had also




                                                                 87
                                                                 Page 87
been standing there alongwith Tiger Memon. Thus, he has

corroborated the statement of Abdul Gani Ismail Turk (A-11).


133. Confessional Statement of Liyakat Ali Habib Khan (A-85):

            His confessional statement reveals that in the second

week of February 1993, his uncle Yakub Khan had asked his father

to allow him to keep a few bags, for the period of a few months in

their godown at Thane and thus, he had been allowed to do so.

After a while, his uncle Yakub Khan, Tiger Memon (AA) and

Nisar had come to his house in a jeep and had taken him along with

them. After opening the godown of the factory, two tempos had

been taken inside, and it was then that the goods were unloaded.

There were 80 packets in gunny bags, and each bag weighed about

30 to 35 Kgs. Tiger Memon had given Liyakat Ali Habib Khan (A-

85) a sum of Rs.600/- out of which he had given Rs.200/- to Nisar

and thereafter, Liyakat Ali Habib Khan (A-85), Nisar and the

appellant (A-18) had gone to the said factory and had then left for

Bombay. On the way, the appellant (A-18) had told him that the

goods that had kept in their factory were actually explosives.


134.   Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), in his

confessional statement has disclosed that the appellant (A-18) had




                                                                 88
                                                                 Page 88
in fact been present when 59 packets had been brought into

Bombay.


135. Deposition of Babydas Vasu (PW-290):

       He had been working in a hotel in Indraprastha at Nage

Thana, District Raigad. He has deposed that the appellant (A-18)

alongwith others, had come there and had stayed in the said hotel

for some time. There are entries to this effect in the hand writing

of the appellant (A-18). Room No. 106 had been booked for them

in the said hotel. He has produced the register to prove the same,

but the said entries are of the year 1992, and not of 1993.


136.    Deposition of Pradeep S. Dalvi (PW-293):

       He has deposed that he was the registered owner of the

vehicle Matador Tempo bearing registration No. MMP-4799 which

had been sold to a decorator in 1988. The said tempo, bearing this

registration number had been used for the smuggling of various

types of contraband, including weapons, from Shekhadi to Panvel

by the appellant (A-18).


137.      Deposition of Abdulmunaf A. Mahimi (PW-294):

       He has deposed that he was the brother of Abdul Samad who

had been carrying on the business of electrical and mandap



                                                               89
                                                                Page 89
decoration, and that the said vehicle had been purchased by his

brother Abdul Samad (not examined) between 5.2.1993 and

9.2.1993. The tempo was not found in the campus. The said vehicle

had been seized on 30.11.1993, but no samples etc. were taken

from the vehicle to determine whether it contained RDX explosives

etc. or not.


138. Deposition of Asit Ghorai (PW-602):

       He has deposed as a panch witness and has stated that 13

samples were in fact taken after the seizure of the vehicle on

30.11.1993. The samples were then sent for chemical analysis.


139.   Deposition of Ajit Surve (PW-604):

       He has proved the seizure of the vehicle and the sending of

the RDX samples for chemical analysis and also the receipt of the

report stating that RDX had been found therein.


140.    Deposition of Moreshwar Thakur (PW-469):

       He has deposed that the Test Identification Parade had been

held in accordance with law, and has further stated that some

witnesses had identified the appellant (A-18), as the person who

was had been involved in the landing at Shekhadi.




                                                                90
                                                                Page 90
141. After due consideration of the entire evidence on record, the

Designated Court came to the conclusion that as the appellant (A-

18) was involved in the Shekhadi landings operation, he has

committed the offence under section 3(3) TADA. The evidence has

also established his involvement in commission of the offence of

conspiracy with the object of committing terrorist acts, as the

appellant (A-18) had been made aware of the nature of the

smuggled goods and had still transported the same. The said act

amounts to furthering the object of conspiracy to commit terrorist

acts. However it has been held that the appellant (A-18) himself

has not committed any act and that he himself has not participated

in any conspiratorial meetings, to denote that he was actually a

party to the conspiracy to commit serial bomb Blast or a party to

the larger conspiracy i.e. the first charge.


142. So far as the appellant (A-18) is concerned, undoubtedly,

there is sufficient evidence to show that he was involved in the

transportation of contraband. From the facts and circumstances of

the case, and after taking into consideration the evidence on record,

it cannot be inferred that despite being a close associate of Tiger

Memon (AA), he remained unaware of the nature of the

contraband. Furthermore, when a person has been transporting



                                                                 91
                                                                 Page 91
goods for a long period of time it is difficult to believe that he

would transport the said goods, without ascertaining the exact

nature of goods being loaded into his vehicle, particularly, in view

of the fact that the vehicle is likely to be checked at several places

by the police, as well as by custom officials. Thus, we do not see

any cogent reason to hold that the appellant (A-18) is not guilty of

the charges for which he has been punished by the Designated

Court.


II.      Sayyed Abdul Rehman Shaikh (A-28)

143. The appellant (A-28) has been convicted on two counts

under Section 3(3) TADA for the offence of conspiracy, and has

been awarded 7 years rigorous imprisonment alongwith a fine of

Rs. 25,000/-, and in default of payment of fine, to suffer further RI

for 6 months on each count.


144. In addition to the first charge of conspiracy, he had been

charged under Section 3(3) TADA for the following offences:

(i)      That he participated alongwith the other co-accused in the

landing and transportation of arms, ammunition and explosives at

Shekhadi, and transported the same from Shekhadi, Mhasla to

Shilphata, Bombay in a Motor Tempo, bearing Registration No.

MCY-2279. Further, he (A-28) has also transported RDX


                                                                 92
                                                                  Page 92
explosives from Mhasla to the godown of co-accused Noor

Mohmed Haji Mohmed Khan and Mohmed Jindran Mumtaz

Jindran in Motor Tempo No. MMP-4799, while accompanied by

Shakil Shahbuddin Shaikh (A-59). He (A-28) has been convicted

and sentenced as mentioned hereinabove.


145.   Ms. Farhana Shah, learned counsel for the appellant has

submitted that the appellant (A-28) did not own the van in which

the goods were transported. Moreover, he has served 3 years out of

the total sentence awarded to him, and is now 60 years old.

Therefore, leniency should be shown to him. Thus, the appeal

deserves to be allowed.


146. Shri Mukul Gupta, learned senior counsel appearing for the

State has submitted that he was involved in the transportation of

arms and ammunition within the territory of India, and owing to

the serious nature of the offence committed by him, there should be

no leniency. Thus, the appeal deserves to be dismissed.


147. We have heard learned counsel for the parties and perused

the record.




                                                               93
                                                               Page 93
148. Evidence against the appellant (A-28):

(a)   Confessional statement of the appellant (A-28)

(b)   Confessional statement of Abdul Gani Ismail Turk (A-11)

(c)   Confessional statement of Dawood Taklya Mohammed
      Phanse (A-14)

(d)   Confessional statement of Sharif Parkar @Dadabhai (A-17)

(e)   Confessional statement of Suleman Mohammed Kasam
      Ghavate (A-18)

(f)   Confessional statement of Shakil Shahbuddin Shaikh (A-59)

(g)   Confessional statement of Shahnawaz Khan (A-128)

(h)   Deposition of Vijay Govind More (PW.137)

(i)   Deposition of Uttam K. Kale (PW.190)

(j)   Deposition of Dileep M. Katarmal (PW.284)


149. Confessional statement of Sayyed Abdul Rehman Shaikh
     (A-28):

       His statement was recorded by Sanjay Pandey (PW.492),

DCP on 23.4.1993 and 26.4.1993. In his confessional statement, he

has disclosed that he was a driver by profession and that he had a

driving licence. He had known Tiger Memon (AA) for the last 6-7

months and also Anwar, Gani (A-11), Rafique Madi and Haji

Yakub. Hazi Yakub was a friend of Anwar's. He had gone to

Ajmer alongwith the other co-accused Suleman and Anwar in April

1992, for smuggling activities. After 2-3 months of his visit to


                                                              94
                                                                Page 94
Ajmer, upon the instructions of Anwar, the appellant (A-28) had

reached Bandra station with one change of clothes. Shafi and

Suleman had come there in a Maruti car, in which he (A-28) had

also driven alongwith them, till Linking Road. From there, the

appellant (A-28) alongwith the others had gone to an open theatre

by way of taking a jeep. Tiger Memon (AA) had arrived there

alongwith Imtiyaz and Anwar      in a blue coloured Maruti car.

Anwar had instructed the appellant (A-28) to follow the car of

Tiger Memon (AA), and they had gone to Panvel and had reached

the Welcome Hotel. Anwar had gone with Tiger Memon (AA).

Imtiyaz and the appellant (A-28) were directed to reach the tower

alongwith the other co-accused. They had gone to Goregaon,

Raigad and had slept there at night. At about 3.30 in the morning,

Tiger Memon (AA) had come with a truck carrying Imtiyaz,

Anwar, Dadabhai (A-17), Dawoodbhai (A-14) and about 20-25

labourers. The appellant (A-28) had woken up and realized that

there were also two more jeeps and one truck. Silver bricks were

removed from the truck that had been brought by Tiger Memon

and the same were loaded into all the vehicles standing at the

tower. The appellant (A-28) alongwith Rafique Madi, had taken

18 silver bricks and had thereafter, proceeded towards Hyderabad.




                                                              95
                                                               Page 95
In Kolhapur, they had handed over the goods to Pradeep Chandra

Jain and had thereafter, returned to Bombay with an empty vehicle.

      After this, on 5.2.1993 at about 12.30 A.M., when he was

returning from shooting (as he has claimed that he worked in

movies, particularly in stunts), he had been called by Tiger Memon

(AA), and had been asked to go to Mhasla. Yeda Yakub who was

also there, had given him the keys to a Matador tempo, which

belonged to Abdul Samad, a decorator in Mahim. He had gone to

Mhasla alongwith Suleman (A-18) and Gani (A-11) and there he

had met Dawood Bhai who had taken them near the tower, and

had told them that the goods had been kept in a pit, and that it

would take some time to remove them. Dawood (A-14) had then

asked him, alongwith the others to return at around 7-7.30 a.m.

with a vehicle. From there he had gone to the house of a lady

(school teacher) in Mhasla Village, and had eaten and also rested

there. In the evening, they had gone to the tower. It was a moon-lit

night, and at the said time Dawood (A-14) and Dadabhai (A-17),

alongwith their 10-15 servants had come there and had proceeded

to load the goods, i.e. 55-60 sacks into the vehicle that had been

brought by him. Some empty sacks were also put in after folding

the same over the goods. They had then gone to the Welcome

Hotel at Panvel. Tiger Memon had also come there. Tiger Memon


                                                                96
                                                                 Page 96
had sent Gani (A-11) and Suleman (A-18) to the Persian Darbar

Hotel. Then Tiger Memon had gone inside the Welcome Hotel

with the appellant (A-28), they had met one fair and tall person

who had brown eyes. The appellant (A-28) had been introduced to

him by Tiger Memon (AA), and was also directed to work in

accordance with his instructions. On being asked, the appellant (A-

28) had disclosed that he (A-28) had also seen the Delhi Darbar

Hotel in Dahisar Check Naka. Then, the fair tall man had told the

appellant (A-28) to park the said vehicle in front of the hotel, on

the other side of the road and had told him that one Shakeel (A-59)

would meet him there, who would then unload the vehicle. As per

the instructions of Shakeel, the appellant (A-28) had proceeded to

park the vehicle. A Nepali had then come there, and some persons

had unloaded the goods from the vehicle and had then brought the

said vehicle back to the Delhi Darbar Hotel, after which, the

appellant (A-28) had left for Virar in the said vehicle.

      Subsequently on 8.2.1993, at about 6-6.30 in the evening,

Anwar had met the appellant (A-28) at Bandra Talab naka and had

asked him to go to Mhasla again. The appellant (A-28) had gone

there alongwith Yakub. Tiger Memon (AA) had also arrived there

after about one hour alongwith a jeep. He had given the jeep to

Suleman (A-18) and thereafter, told him to leave. The appellant


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                                                                Page 97
(A-28) upon the instructions of Tiger Memon (AA), had returned

alongwith the vehicle and had handed over the said vehicle to Gani

(A-11) and returned to Bandra Talab. Anwar had then paid

Rs.5,000/- to the appellant (A-28) in the evening, in lieu of the

aforementioned job. The appellant (A-28) had thus been working

continuously for Tiger Memon. However, he had been unaware of

the contents or nature of the goods. It was only after the Bombay

Blast had taken place on 12.3.1993, and when Tiger Memon's

name had appeared in the newspapers, that the appellant (A-28)

had realised that he had committed a mistake by participating in

the said landing and transportation, as he thought that perhaps,

instead of silver and gold, it had actually been weapons that were

smuggled in by him. He was arrested during the shooting of a

movie, in which he was working.


150. Confessional Statement of Abdul Gani Ismail Turk (A-11):

      His confessional statement has revealed that the appellant

(A-28) had been at the residence of Tiger Memon (AA) at the Al-

Husseini building. When he had gone there on 4.2.1993, after

about 4-5 days, he had met Suleman Kasam Ghavate (A-18) and

Sayyed Abdul Rehman (A-28). They also had a tempo with them.

Tiger had given Gani (A-11) a sum of Rs.1 lakh and had asked him



                                                              98
                                                               Page 98
to go alongwith the appellant (A-28) and Suleman Mohammed

Kasam Ghavte (A-18), to pay the said amount to Dawood Taklya

(A-14), and while returning, to bring back with them, the black

soap. It was the same black soap which had been brought to the

tower on the night of 3.2.1993. The tempo was thus loaded by the

appellant (A-28), alongwith Suleman Mohammed Kasam Ghavte

(A-18) and several others. The same finally contained 59 boxes of

chemical, and was brought to Bombay, after which he had met

Tiger Memon.


151. Confessional Statement of Dawood Taklya Mohammed
     Phanse (A-14):

      In his confession, he has revealed that after collecting the

smuggled goods, he alongwith others, including the appellant (A-

28) had reached the tower. Tiger Memon (AA) had instructed all

the persons to remain outside, except his own men. Tiger Memon

(AA) had even asked the watchman (A-62) to leave. Tiger Memon

(AA) had further instructed them to remove all the empty boxes

and jute cloth from there, and to burn the same. At the time when

they had gone inside, they had seen that the men of Tiger were

opening boxes, and that they were placing rifles, pistols, bullets,

hand grenades, bundles of wire with white pencils on top of them,

and black soap like material on the side. Tiger Memon (AA) was


                                                               99
                                                                Page 99
seen sitting on the side and after counting, he would make notes in

his diary. Baba, Driver (A-73) and the appellant (A-28), were

among the men of Tiger Memon who were opening the cavities of

the jeeps and tempos parked there. At this time, Tiger Memon

(AA) took out a pencil like thing made of white steel like material,

and showed the same to him (A-14) and to Dadabhai (A-17). He

had told them that each object was worth Rs.25,000/- and that the

same could even be used to explode the Oberoi Hotel.


152. Confessional Statement of Sharif Parkar @ Dadabhai (A-17):

      His confessional statement has disclosed that on 7.2.1993

Gani (A-11) had come with a tempo. He had been accompanied by

Miya @ Suleman Ghavte (A-18) and Sayyed Abdul Rehman

Shaikh (A-28). At this time, Gani (A-11) had brought Rs.1 lakh

with him and had given the same to Dawood Taklya (A-14). The

smuggled goods were loaded into the tempo, which then left for

Bombay.


153.Confessional statement of Suleman Mohammed Kasam
    Ghavate (A-18):

      This accused (A-18) in his confessional statement disclosed

that he reached Mhasla on 6.2.1993 alongwith appellant (A-28) and

A-11, A-14 and A-17 were already present there. They put 59-63



                                                                100
                                                               Page 100
packets containing powder in a vehicle. While they were coming

back they met Tiger Memonn (AA) in Panvel. On 8 th February,

1993, A-18 drove a white tempo as directed by Anwar and got off

at Panvel.   After some time, another yellow tempo, driven by

appellant (A-28) arrived there in which A-18 sat and drove upto

Mahad. They reached in front of Besawa Hotel in Mahad where

another tempo, driven by appellant A-28 appeared and then they

went to Mhasla where goods were divided in both the tempos. On

their way to Panvel, he saw Tiger Memon (AA) in a car and he

asked A-18 to take the tempo to Chilparakalyan.         When they

reached Chilparakalyan, they met Tiger Memon (AA).            Tiger

Memon drove the tempo himself and came back with an empty

tempo in half an hour.


154. Shakil Shahbuddin Shaikh (A-59) and Shahnawaz Khan

S/o Faiz Mohmed Khan (A-128) in their confessional statements

have supported the case of the prosecution, as they have stated that

the appellant (A-28) had participated in the landing and

transportation.


155. Deposition of Uttam K. Kale (PW.190) - He deposed that

he has recorded the confession of appellant (A-28). On 1.6.1993,

appellant (A-28) expressed his willingness to make a voluntary


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                                                               Page 101
confession because of repentance and denied being induced or

coerced. He was given 48 hours to re-think and he recorded his

statement on 4.6.1993 as he was busy on 3.6.1993. The said

witness identified the confessional statement of A-28 in court.


156. Deposition of Vijay Govind More (PW.137) ­ He deposed

that he was working as labourer at Wangni Tower. He wrongly

identified the appellant (A-28) as Anwar and in his statement did

not name appellant (A-28) but corroborated in general particulars

in respect of transportation of goods smuggled at Shekhadi. He

also stated that goods were unloaded at Wangni Tower and shifted

in another vehicle and at that time Tiger Memon (AA) and Dawood

Taklya (A-14) among others were present.


157. Dileep M. Katarmal (PW.284) in his statement has deposed

that A-17 has purchased a few dozens gunny bags from his shop

on 10.2.1993, though he did not name the appellant (A-28)

specifically but he corroborated in general particulars the

confession of appellant (A-28) wherein he stated that he alongwith

Najeeb had purchased 1500 sacks from the said shop.


158. Considering the material contained in the confession of the

appellant (A-28), and in those of the aforesaid co-accused, it was



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                                                                  Page 102
held that the same leads to the inescapable conclusion that the

appellant (A-28) had infact been involved in the Shekhadi landing

operation, and had thus committed the offence under section 3(3)

TADA. The evidence also establishes his involvement in the

commission of the offence of conspiracy to commit terrorist acts

since the appellant (A-28) was certainly aware of the nature of the

contraband material, and had still transported the same, the said act

amounts to furthering the object of the conspiracy to commit

terrorist acts. However, it was held that the appellant (A-28) had

not committed any acts and had not participated in any

conspiratorial meetings, to denote that he had been a party to the

conspiracy to commit the serial bomb Blast or the larger

conspiracy i.e. the first charge.


159. So far as the appellant (A-28) is concerned, his confessional

statement which stands corroborated by the confessional statements

of the other co-accused, particularly, Abdul Gani Ismail Turk (A-

11), Dawood @ Dawood Taklya (A-14), Imtiyaz Yunusmiya

Ghavte (A-15), Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)

and Shahnawaz Khan (A-128)          reveals his involvement in the

Shekhadi landing and further establishes that he had been fully

aware of the nature of contents of the contraband and had still



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                                                                Page 103
transported the same. Such an act tantamounts to furthering the

object of the conspiracy to commit terrorist acts. Taking into

consideration his close association with Tiger Memon (AA) and his

associates, with respect to their smuggling activities, it is difficult

to believe that he was unaware of the nature of the contents. Thus,

we are of the view that he has rightly been convicted under Section

3(3) TADA by the Designated Court.


III.   Sajjad Alam @ Iqbal Abdul Hakim Nazir (A-61) :

160. The appellant (A-61) has been convicted under Section 3(3)

TADA on two counts, and has been awarded 7 years rigorous

imprisonment alongwith a fine of Rs. 50,000/-, and in default of

payment of fine, to suffer suitable RI.


161. The appellant (A-61) has been charged for criminal

conspiracy, and in addition thereto, has also been charged under

Section 3(3) for his participation in the landing at Shekhadi on 3rd

and 7th February, 1993 and in the transportation of arms,

ammunition, hand grenades and explosives like RDX which were

to be used in the Bombay Blast on 12.3.1993, and further, for using

his auto rickshaw bearing registration No.MH-06-2243 to bring the

aforementioned smuggled items to Bombay. He has been acquitted

of the first charge of conspiracy, however, he has been convicted of


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                                                                  Page 104
the second charge under Section 3(3), and has been sentenced as

referred to hereinabove.


162. Ms. Farhana Shah, learned counsel for the appellant has

submitted that his confession had not been made voluntarily, and

that the same had been retracted on 3.12.93 and therefore, must not

be taken into consideration. Hence, the appeal deserves to be

allowed.


163. Shri Mukul Gupta, learned senior counsel for the respondent,

has submitted that even if the confessional statement of the

appellant (A-61) was retracted, the same has been corroborated by

the confessional statements of the other co-accused, as well as by

the depositions of various witnesses. Therefore, this appeal

deserves to be dismissed.


164. We have considered the rival submissions made by learned

counsel for the parties and perused the record.



165. Evidence against the appellant (A-61):

(a)        Confessional statement of the appellant (A-61)

(b)   Confessional statement of Dawood Taklya (A-14)

(c)        Confessional statement of Khalil Ahmed Sayed Ali Nasir (A-42)



                                                               105
                                                              Page 105
(d)   Confessional statement of Imtiyaz Yunusmiya Ghavte (A-15)

(e)   Confessional statement of Muzammil Umar Kadri (A-25)

(f) Confessional statement of Tulsiram Dhondu Surve (A-62)
(g) Deposition of Vijay Govind More (PW-137)

(g)      Depositions of Chandrakant Afaraz (PW-111),
         Vyankatesh Hirba (PW-588) and Shridhar Gawade (PW-
         151).


166. Confessional Statement of Sajjad Alam @ Iqbal Abdul
     Hakim Nazir (A-61):

      His own confession has been recorded by Shri K.L. Bishnoi,

DCP (PW.193), wherein he has revealed that he had taken certain

persons in his auto rickshaw bearing No. MH-06-2243, to the place

of the landing.    He had seen that certain materials had been

removed in gunny bags from a jeep i.e. 16 rifles and 32 cassettes

and that the same were taken into a room where the appellant

(A.61) was not allowed to enter. He had been paid Rs.4,000/- for

participating in two landings.

      He has further revealed that on 9.2.1993 Dawood Taklya (A-

14) had met him at the Mhasla S.T. Stop and had asked him to

come to Mehandari. He (A-61) had taken him to Mehandari where

they met Khalil Nazir and Muzammil (A-25). Here, Dawood had

told Muzammil to hand over to him 3 rifles and 6 cassettes.

Muzammil had then handed over the said weapons in gunny bags.



                                                             106
                                                             Page 106
The appellant (A-61), Khalil and Dawood Taklya (A-14) had gone

alongwith the said arms, to Lonery Phata. After sometime Tiger

Memon (AA) had arrived there in his blue Maruti car and

thereafter, the said goods were shifted to his car.


167. Confessional Statement of Dawood Taklya (A-14):

       He has disclosed that on the date of the landing, Tiger

Memon (AA) had sent him to the place of landing alongwith some

persons who had also been given guns by Tiger Memon (AA).

Such armed persons were spread over all sides. After sometime

the said goods had arrived in a trawler. Persons who had been

called from the village then began to unload these goods and

bringing them to shore. Khalil and Iqbal (A-61) had also come

there with trucks. The entire cargo was loaded into two trucks and

thereafter, they all come to T.V. Tower, where the said goods were

unloaded. Some time after this, Tiger had instructed them to

remove all the empty boxes and jute bags from there and to burn

the same. When they had gone inside, they had seen the men of

Tiger opening boxes which contained rifles, pistols, bullets, hand

grenades, black soap and bundles of wires with white pencils on

top.




                                                              107
                                                             Page 107
168. Confessional Statement of Khalil Ahmed Sayed Ali Nasir
     (A-42):


       His statement has disclosed that the aforementioned goods

were smuggled. He had gone to the house of Dawood Taklya (A-

14) in the afternoon at about 4 p.m. to inform him that the landing

of the said goods would take place that night, and that appellant

(A-61) should thus be sent to Dawood Taklya          at 7 p.m. by

Rickshaw. On the said day he had sent appellant (A-61) from

Mehandari to Mhasla in his Rickshaw.


169. Confessional Statement of Imtiyaz Yunusmiya Ghavte
     (A-15):

      He has deposed about the landing at Shekhadi in early

February. He had gone to Tiger's residence at the Al-Husseini

Building, and it was there that he had learnt of the said landing.

Shaffi and Rafiq were also present there at such time. From there,

they had gone to Shekhadi for the landing alongwith a large

number of persons, and after the landing, the goods were brought

to the Wangni Tower. The appellant (A-61) had been present at

the Tower with his Rickshaw.




                                                               108
                                                              Page 108
170. Confessional Statement of Muzammil Umar Kadri (A-
     25):

       His confessional statement has disclosed that on 3.2.1993, in

the evening at about 7.30 p.m. he had been told by Khalil from

Mehandari, that he should stay alongwith Suleman (A-18), at a

particular house. When he had gone there, he had found Sajjad

Alam (A-61) Rickshawala there. The appellant (A-61) had come

there after having dropped Dawood Taklya (A-14) and Khalil to

Shekhadi. He has further furnished other details regarding the

landing on 7.2.1993. He has said that at 11.30 p.m., Dawood (A-

14) had come in the rickshaw of the appellant (A-61), and had

collected 3 rifles and 6 cassettes which had been kept with him in

January, 1993. The remaining 13 rifles and 26 cassettes were

recovered by the police from his house later on.


171.    Confessional statement of Tulsi Ram Dhondu Surve (A-62):

       He is a government employee and working at Wangni tower.

He has identified A-61 and named him as a participant in

smuggling, landing and transporation.


172. Deposition of Vijay Govind More (PW-137):

       He has deposed that he was a labourer working at the Tower,

and has identified the appellant (A-61) in court as the person who



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                                                               Page 109
had come to the Tower quite often. He has also named him as a

participant in smuggling, landing and transportation.


173. Chandrakant Afaraz (PW-111), Vyankatesh Hirba (PW-

588), PSI of the Mhasla Police Station and Shridhar Gawade

(PW-151) have proved the Seizure Memo of the autorickshaw and

the related panchnama.


174. After due consideration of the entire evidence on record, the

Designated Court came to the conclusion that the appellant (A-61)

being involved in the Shekhadi landing operation, has committed

the offence under section 3(3) TADA. The appellant (A-61) was a

close associate of Dawood Taklya (A-14) and had participated

and/or assisted Dawood Taklya (A-14) in effecting the said

landing. The appellant (A-61) had also taken Dawood Taklya (A-

14) and his other associates to the Shekhadi coast, at odd hours of

the night for the purpose of the landing operation. Even prior to the

said landing, the appellant (A-61) had been involved in the

concealment of rifles and magazines at residence of Muzammil

Umar Kadri (A-25), and thereafter on 9.2.1993, had transported

rifles and magazines from the house of Muzammil Umar Kadri (A-

25) and had handed over the same to Tiger Memon (AA) at Lonery




                                                                110
                                                                Page 110
Phata. The appellant (A-61) had also received an amount of Rs.

4000/- for the work done by him in the landing operation.


175. The evidence on record clearly establishes the above and

thus, the fact that he was one of the main persons who was

responsible for effecting the said landing. Hence, he has rightly

been convicted by the learned Special Judge under Section 3(3)

TADA, and no interference is required in the said order.



IV.    Tulsi Ram Dhondu Surve (A-62) :


176. He was a watchman at the Wangni Tower which was

permitted to be used by the appellant (A-62), for the reloading of

weapons and explosives from one vehicle to another. The appellant

(A-62) has been charged for criminal conspiracy, and in addition

thereto, for his participation in the landing and transportation of

arms, ammunition, hand grenades and explosives like RDX to be

used in the Bombay blast on 12.3.1993.

      He has been further charged with abetting and facilitating

acts that were preparatory to the main terrorist acts, in January to

February 1993 at Shekhadi and places close by, as well as at

Wangni Tower, District Raigad. The main terrorist acts were

executed in Bombay on 12.3.1993 in the form of multiple bomb


                                                                111
                                                               Page 111
Blast. This was done by the appellant (A-62), permitting Dawood

@ Dawood Taklya (A-14), Tiger Memon (AA) and his associates

to use the said premises for the purpose of facilitating the

smuggling and landing of arms, ammunition, handgrenades and

explosives like RDX, which were smuggled into the country by

Tiger Memon and his associates on 3rd and 7th February, 1993. The

tower was used for re-loading and transportation of the contraband

into Bombay and other places.

       He has further been charged with permitting Dawood Taklya

(A-14), Tiger Memon (AA) and his associates to conceal 59 bags

of RDX explosives in his agricultural field which were removed

subsequently by the terrorists.

       He has further been charged, being a government servant, of

having failed to furnish information in relation to the smuggled

weapons, which he was legally bound to do and can therefore, be

said to have committed the offence punishable under Section 202

IPC.


177. The appellant (A-62) has been acquitted of the first charge.

However, he has been given the sentence of 9 years alongwith a

fine of Rs.50,000/- and in default of payment of fine, he has been

ordered to suffer further RI for one year under Section 3(3) TADA,






                                                              112
                                                             Page 112
and of 6 months alongwith a fine of Rs.5,000/- under Section 202

IPC.


178. Ms. Farhana Shah, learned counsel for the appellant has

submitted that the appellant (A-62) was a watchman at the Wangni

tower and that he had no knowledge of the contents of the

contraband goods. Moreover, he has served over 6 years of the

sentence awarded to him. He should at most therefore, be tried

under Section 202 IPC. Hence, the appeal deserves to be allowed.



179. Shri Mukul Gupta, learned senior counsel appearing for the

State has submitted that he was aware of the contents of the

smuggled goods as the same had been unloaded in front of him.

Therefore, the appeal deserves to be dismissed.


180. We have heard learned counsel for the parties and perused

the record.



181.     Evidence against the appellant (A-62):

(a)    Confessional statement of the appellant (A-62)

(b)    Confession of Dawood Taklya (A-14)

(c)    Confession of Sharif Abdul Gafoor Parkar (A-17)

(d)    Confession of Munna @ Mohammed Ali Khan (A-24)


                                                              113
                                                             Page 113
(e)   Confession of Rashid Umar Alware (A-27)

(f)   Confession of Khalil Ahmed Sayed Ali Nasir (A-42)

(g)   Confessional statement of Sajjad Alam (A-61)

(h)   Deposition of Harish Chandra Surve (PW.108)

(i)   Deposition of Vijay Govind More (PW.137)

(j)   Deposition of Ravindra Sarant (PW.145)

(k)   Deposition of Vyankatesh Hirba (PW.588)



182. Confessional Statement of Tulsi Ram Dhondu Surve (A-
     62):

      In his confession, Tulsiram Dhondu Surve (A-62) has

disclosed that he had been working as a watchman at the Tower

alongwith other employees, namely, Harish Chandra Surve (PW-

108) and Vijay Govind More (PW-137). He has disclosed that one

and a half years prior to the recording of his statement, one Sharif

Adhikari of Mhasla had brought Dawood Phanse (A-14) to him,

who had asked the said appellant (A-62) to help them in the

smuggling of silver and other goods, by allowing them to keep the

same in the Tower for some time, in return for some consideration,

and that he had agreed to the same. At night, 9-10 persons had

come alongwith Tiger Memon (AA), and one truck and a jeep.

They had loaded the goods into a tempo from the truck. At the said



                                                                114
                                                               Page 114
time, Tiger Memon (AA) and his associates had been armed with

guns and pistols, and after completing the loading they had all left

the Tower. The appellant (A-62) had been paid Rs.1000/- for each

occasion, which he had shared with other persons.          He also

received 10 acres of land in his name, which was a benami

property, as the same belonged to Dawood (A-14). He has further

disclosed that he had also been paid a sum of Rs.2000/- and for two

or more trips, a sum of Rs.6000/- which he had distributed among

others.


183. Confessional Statement of Sajjad Alam (A-61) :

      In his confession, he has corroborated the evidence available

as regards the meeting with Tulsiram Dhondu Surve (A-62).

Though Dawood Taklya (A-14) did not name him, he has

corroborated the evidence of the other co-accused by stating that

A-62 had been helping them at the Tower for loading and

unloading etc.    Khalil Ahmed (A-42) has stated that when the

smuggled goods were being reloaded, the same consisted of 59

gunny bags containing a cement like black soap, 91 boxes and 7

long canvas bags. Vijay Govind More (PW-137) has deposed that

the landing had taken place in February 1993, and that the goods

had then been brought to the Tower and that from there, the same



                                                                115
                                                               Page 115
were shifted into the jeep. He has identified the appellant (A-62) in

court. Ravindra Sawant (PW-145) was the panch witness for the

recovery of goods at the Tower, and has also identified A-62 in

court.


184. Deposition of Vijay Govind More (PW.137)

         He deposed that at the relevant time he was working as

labourer at Wangni Micro Wave Tower since 1986 to 1993. In

October 1992 he was on duty at Wangni Tower alongwith

Harishchandra Surve. On that day appellant (A-62) was also on

duty at the Tower and the appellant (A-62) told them that one party

shall come at the Tower on the said day in the night. Appellant (A-

62)      after his duty left Wangni Tower for his residence and

returned at about 7.30 to 8.30 p.m.       At about 9.30 p.m three

persons came by a Maruti car at Wangni Tower. Out of them,

Sarfaraj Phanse called for appellant (A-62) and asked him to

arrange for tea.      Appellant and the witness prepared tea.

Subsequently, Tiger Memon, Dawood Phanse, Sharif Adhikari,

Abdul Gharatkar, Dadamiya Parkar also came there. At about 11

p.m., a truck came at Wangni Tower. Following the same, one

tempo and two jeeps also arrived. The goods which had been

brought in the said truck were loaded into jeeps and tempo and



                                                                116
                                                                Page 116
then all the vehicles left the Tower. Again in February 1993 when

the witness was on duty, the appellant (A-62) told him that goods

of Dawood Phanse had to arrive. After the duty hours, appellant

(A-62) went to his house and again returned to the tower in the

evening. At about 8.30 p.m., three persons came by a car. One of

them was Iqbal whom the witness had seen at Wangni Tower in

earlier trip alongwith others. After about 11 p.m., one truck, two

jeeps and a tempo arrived at Wangni Tower. Dawood Phanse,

Sharif Adhikari, Abdul Gharatkar, Dadamiya Parkar also came.

Just thereafter, Dawood Phanse and his companions arrived in a

jeep.   This witness identified the appellant (A-62) and other

accused, namely, accused nos.14, 17, 28, 42, 60, 61 and 73.


185. After due consideration of the entire evidence on record, the

Designated Court came to the conclusion that as the appellant (A-

62), was involved in the Shekhadi landing operation, he has

committed the offence under section 3(3) TADA. The appellant

(A-62) being a watchman of the Wangni Tower i.e. government

premises, had allowed the same to be used for purpose of

facilitating the smuggling and landing of arms, ammunition, hand

grenades and explosives that was organized by Tiger Memon (AA)

and his associates. The appellant (A-62) had also permitted the co-



                                                               117
                                                              Page 117
accused to conceal 59 bags of RDX explosives in his field. Hence

he was held guilty for the offence punishable under Section 3(3)

TADA.


186. So far as appellant (A-62) is concerned, the evidence on

record, particularly the confessional statement of the appellant (A-

62), which has been     duly supported by the other material on

record, clearly reveals that being a watchman of government

premises i.e. Wangni Tower he had allowed the same to be used

for the purpose of facilitating the smuggling and landing of arms,

ammunition, handgrenades and explosives as organized by Tiger

Memon (AA) and his associates. The evidence further establishes

his involvement in concealing 59 bags of RDX explosives in a

field existing in his name. Thus, he has rightly been convicted by

the learned Special Judge under Section 3(3) TADA and Section

202 IPC. Being a government servant, he has intentionally omitted

giving information to the authorities about the offences committed

in his presence, which he was legally bound to do. Thus, no

interference is required in his order of punishment.




                                                                118
                                                               Page 118
V.        Gulam Hafiz Shaikh @ Baba (A-73):


187. The appellant (A-73) has been charged for the offence of

criminal conspiracy and in addition thereto, for his participation in

the landing at Shekhadi and the transportation of arms,

ammunition, hand grenades and explosives like RDX to be used in

the Bombay Blast on 12.3.1993, under Section 3(3) TADA and has

further    been   charged   under   Section   6   TADA      for   the

possession/storage of arms, ammunition and explosives in his

garage, in contravention of the provisions of the Arms Act and the

Rules thereunder, by transporting such unauthorized arms,

ammunitions and explosives from Shekadi to Bombay.

          He has been found guilty of the charge under Section 3(3)

TADA and has been awarded the sentence of 8 years alongwith a

fine of Rs.10,000/-, and in default of payment of fine, further RI

for two months. He has further been found guilty under Section

3(3) TADA for facilitating the landing and transportation of the

aforementioned contraband, and has been awarded RI for 6 years

alongwith a fine of Rs.5,000/- and in default of payment of fine, RI

for one month. He has also been found guilty under Section 6 of

TADA for possession and storage of the said weapons in his garage

and for this he has been given a sentence of RI for 8 years,



                                                                  119
                                                                  Page 119
alongwith a fine of Rs.10,000/- and in default, further RI for two

months. All the sentences have been directed to run concurrently.


188. Ms. Farhana Shah, learned counsel for the appellant has

submitted that there are contradictions in the statements of the co-

accused, and that therefore, they should not be relied upon.

Moreover, the confessional statements of the co-accused were

taken at odd hours, and there is no other corroborative evidence

available against him. Therefore, the appeal deserves to be

allowed.


189. Shri Mukul Gupta, learned senior counsel for the respondent

has submitted that the appellant (A-73) was aware of the nature of

the goods that he had kept in the false cavities of the vehicles.

Moreover, his confession has been corroborated by various co-

accused. Therefore, the appeal deserves to be dismissed.


190. We have heard learned counsel for the parties and perused

the record.


191. Evidence against the appellant (A-73):

(a)   Confessional Statement of Gulam Hafiz Shaikh @ Baba
      (A-73)
(b)   Confessional statement of Dawood Taklya (A-14)




                                                                120
                                                               Page 120
(c)   Confessional statement of Imtiyaz Yunusmiya Ghavte (A-
      15)
(d)   Confessional Statement of Sharif Abdul Gafoor Parkar @
      Dadabhai (A-17)
(e)   Confessional statement of Mohammed Rafiq (A-46)

(f)   Deposition of Vijay Govind More (PW.137)

(g)   Deposition of Vinod Lokhande (PW.183)


192. Confessional Statement of Gulam Hafiz Shaikh @ Baba
     (A-73)


.     The confession of the appellant (A-73) was recorded by Shri

Vinod Balwant Lokhande, D.C., Airport Zone, Bombay on

15.5.1993 and 17.5.1993.      In his confessional statement, the

appellant (A-73) has disclosed that he has been working in the

garage of his maternal uncle since his childhood. His uncle had

handed over the garage to him 27 years ago. He had been running

the said garage for repairing vehicles. He knew Tiger Memon

(AA) and his associates Sunil, Shaffi, Imtiyaz, Anwar, Rafique

Madi, Raju Marwari, Riyaz, Majeed etc. They would do the work

of smuggling silver. The same was unloaded at the sea-shore near

the village Mhasla. The goods were to be brought by trucks to the

Tower, and the contraband were then to be unloaded and concealed

in the cavities of tempos and jeeps there.      The work of the

appellant (A-73) was to take the tempo or the jeep full of smuggled



                                                               121
                                                              Page 121
silver to its destination, and after this, he was paid a sum of

Rs.2,000 to 3,000 for each transportation/landing. In the last week

of January, 1993 he had reached the Welcome Hotel, Panvel

alongwith the jeep at 8.30 p.m. upon receiving instructions to this

effect. Four jeeps and a Maruti car were already parked there.

Tiger and Sunil were also sitting in the jeep. The goods were

smuggled in the next day with the help of a large number of

persons including Tiger, Shaffi, Anwar, Imtiyaz, Gani and Rafique

etc. The truck was then unloaded, and all goods were kept in the

tempos and jeeps.     There were several green coloured boxes

containing black soap, and cartridges.   The appellant (A-73) had

parked the tempo full of smuggled goods outside his garage in

Islampura. The appellant (A-73) had then gone to Persian Darbar

Hotel upon being called by Tiger Memon. The appellant (A-73)

was asked by Tiger Memon to take the tempo outside his garage to

Sankhvi street, opposite Bata Company, near Lokhandi gate near

the place where Chiliyaki Hotel was situated. He was informed

that there would be a boy at the gate who would give him a signal

with a white handkerchief upon seeing the said tempo. The

appellant (A-73) was told to take the vehicle as per his direction,

and unload the goods there. The next day, the appellant (A-73) had

taken the tempo to Sankhvi Street to the aforesaid address, and as


                                                               122
                                                              Page 122
per the direction, the goods were unloaded there. He had been

paid Rs.1000 for this work. The appellant (A-73) has confessed

that he had participated in landings of silver, and that it was only

on one occasion that weapons had been smuggled.


193. Abdul Gani Ismail Turk (A-11), Dawood @ Dawood

Taklya (A-14), Imtiyaz Yunusmiya Ghavte (A-15), and Mohd.

Rafiq (A-46) have supported the case of the prosecution by stating

that the appellant (A-73) participated in the landing and

transportation of the smuggled goods including arms, ammunition

etc.


194. Confessional Statement of Sharif Abdul Gafoor Parkar
     @ Dadabhai (A-17)

       In his confessional statement, he has disclosed details of the

incident dated 28th /29th February, 1993. He has stated that at 1.30

­ 2.00 a.m., the smuggled goods had been were brought in a lorry

to the tower, and that Tiger Memon (AA), Yakub (AA), Javed

(AA), Dawood Taklya (A-14) and their men and others had also

come there. Shafi, Anwar and driver Baba (appellant A-73) had

opened the boxes and the same contained hand bombs, wires,

rifles, pistols and bullets. The appellant (A-73) and others had put




                                                                 123
                                                                Page 123
all the weapons and explosives into the cavities of jeeps and

tempos. The goods had also contained a chemical, black soap.


195. Deposition of Vijay Govind More (PW.137)

      He was labourer at Wangni Tower and he had clearly

deposed that appellant (A-73) was involved in the loading and

unloading of smuggled goods at Wangni Tower. He identified the

appellant (A-73) in court.


196. Deposition of Vinod Lokhande (PW.183)


      He has recorded the confessional statement of the appellant

and he deposed that it was voluntary and had been made strictly in

accordance with law and the confessional statement was forwarded

to the Chief Judicial Magistrate, Alibagh.


197. In view of the above, we have to consider whether in light

of the evidence on record, the conviction of the appellants can be

sustained.


198. All the material on evidence was collected and after

appraisal, the Special Judge came to the conclusion that A-73 had

in fact been involved in the landing operations of the contraband

substances. The evidence against appellant (A-73) includes his



                                                               124
                                                               Page 124
own confession wherein he has confessed to being fully aware of

the fact that the contraband were shifted from trucks to other

vehicles, which contained arms, ammunition and RDX. The

Designated Court came to the conclusion that his act of driving the

vehicle containing such material could not be for any purpose other

than to aid and abet terrorist activities.

      However, the Designated Court has stated that the said acts

had been committed by him in the early phases of the conspiracy,

even prior to Tiger Memon (AA) deciding the target of the Blast.

The court also went on to say that after this particular incident A-

73 had not been involved in any landing job. Therefore, he (A-73)

cannot be held guilty for the larger conspiracy, for which the

charge firstly, was framed against him.


199. So far as appellant (A-73) is concerned, like other appellants,

his involvement and participation in the landing operations of the

contraband substances has been clearly established.       His own

confessional statement has revealed that he, being fully aware of

the contents of the contraband, shifted the same from the truck to

other vehicles and that in spite of the fact that he knew that the

contraband contained arms, ammunition and RDX, he continued to

be associated with the other co-accused. Therefore, he has aided



                                                                125
                                                               Page 125
and abetted terrorist activities, and we do not see any cogent reason

to interfere with his order of conviction as recorded by the

Designated Court.


200. In view of the above, we do not find any substance in these

appeals and the same stand dismissed.


201. In case, if the appellants are on bail, their bail bonds are

cancelled and they must surrender within four weeks from today,

failing which the Learned Designated Court under TADA shall

take them into custody, and send them to jail to serve out the

remaining part of their sentences, as have been awarded by the

learned Designated Court under TADA.




                                                                126
                                                                Page 126
              CRIMINAL APPEAL NO.600 OF 2011


State of Maharashtra                                  ...Appellant

                              Versus

Sayed Abdul Rehman Shaikh                            ... Respondent



202.     This appeal has been preferred against the judgment and

order dated    2.8.2007 passed by Special Judge of the the

Designated Court under the TADA for Bombay Blast Case No.1 of

1993, by which the respondent has been convicted under Section

3(3) TADA, and awarded rigorous imprisonment for 7 years

alongwith a fine of Rs.25,000/-, and in default of payment of fine,

to suffer further RI for six months, and secondly RI for 7 years

under Section 3(3) TADA, but had been acquitted of the charge of

larger conspiracy.

       Hence, this appeal.



203. Heard rival submissions by counsel for both parties and

perused the evidence on record.


204. The evidence against the said respondent includes his own

confession wherein he had disclosed that he was a driver and was

acquainted with Tiger Memon (AA), Mohd. Rafiq (A-46), Anwar


                                                               127
                                                              Page 127
(AA), Abdul Gani Ismail Turk (A-11), Suleman Mohd. Kasam

Ghavate (A-18) and Uttam Potdar (A-30).        In April 1992, the

accused (A-28) had gone along with Suleman Mohd. Kasam

Ghavate (A-18) and Uttam Potdar (A-30) to Ajmer for taking

silver. On 5.2.1993 Suleman Mohd. Kasam Ghavate (A-18) took

the accused (A-28) to Tiger Memon (AA) who asked him to go to

Mhasla. Yeda Yakub gave the accused (A-28) the keys of a tempo

in which the accused (A-28) alongwith Suleman Mohd. Kasam

Ghavate (A-18) and Abdul Gani Ismail Turk (A-11) went to

Mhasla.   On the next day, at Mhasla the accused (A-28) met

Dawood Taklya (A-14) who took him alongwith other co-accused

to Wangni Tower and told them that the goods are to be dug out

from a pit. After the goods were taken out, they were placed in the

vehicle in the presence of Dawood Taklya (A-14). Then, they

came to Nagothane (near Pen) and stayed in a hotel. The accused

(A-28) alongwith Tiger Memon (AA) went inside Welcome Hotel

wherein they met a man who told the accused (A-28) to park the

vehicle in front of Hotel Delhi Darbar at Dahisar Check naka. The

accused (A-28) parked the vehicle as directed and the goods were

unloaded there with the help of some persons. The accused (A-28)

again met Tiger Memon (AA) on 8.2.1993 and went to Mhasla

alongwith Anwar and Tiger Memon and brought 1500 sacks from


                                                               128
                                                              Page 128
one Gujarati in Pen. On 11.2.1993 Tiger Memon met them at Goa

Road and asked Suleman Mohd. Kasam Ghavate (A-18) and the

accused (A-28) to accompany him till Kalyan, wherein they

handed over the vehicle to Tiger's man, namely, Usman Gani

Choudhary. The accused (A-28) was paid Rs.5,000/- for the said

job.


205. The said confessional statement was duly supported and

corroborated by the confessional statements of Abdul Gani Ismail

Turk (A-11), Dawood Taklya (A-14), Suleman Mohd. Kasam

Ghavate (A-18) and Uttam Potdar (A-30), Sharif Abdul Gafoor

Parkar (A-17) and Shakil Shabbuddin Shaikh (A-59).


206. Uttam M. Kale (PW.190) also supported the prosecutions

case to the extent that the confessional statement was given by the

accused (A-28) voluntarily and it had been recorded strictly in

accordance with law. The deposition of Sanjay Pandey (PW.492)

and Vijay Govind More (PW.137) also supported the case of the

prosecution.


207. After appreciating the evidence on record the learned

Designated Court recorded the conclusion as under :-

       "574) Thus in light of the reasoning given
       aforesaid, it will be difficult to accept submission


                                                               129
                                                              Page 129
      of Ld. Chief P.P. to give maximum punishment to
      A-18 & 28 for the reasons canvassed by him and
      dealt earlier and so also for any other reason,
      which is also precisely absent. At the cost of
      repetition, it will be necessary to say that even it is
      accepted that smuggling of arms, ammunition and
      explosives substance, even accepted to be very
      heinous merely on said count awarding maximum
      punishment to each of the accused involved in
      such landings de hors considering the extent of act
      committed by him and thereby assessing the
      element of criminality exist in him would amount
      allowing oneself to be swayed by feeling and
      would amount of having acted without any logical
      reasoning behind it. Having regard to the same
      while awarding punishment to A-18 & 28 it will be
      necessary to take into account the gravity of the act
      committed by both of them and so also the other
      circumstances relevant to same as urged on their
      behalf or even otherwise."


208. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


209. The instant case is similar as that of Suleman Mohd. Kasam

Ghavate (A-18) and therefore, we are not in a position to take a

view different to the view taken in that case.

      The appeal lacks merit and is accordingly dismissed.




                                                                130
                                                                Page 130
            CRIMINAL APPEAL NO. 406 OF 2011


State of Maharashtra                                 ...Appellant


                               Versus

Gulam Hafiz @ Baba                                  ... Respondent


210. This appeal has been preferred against the judgment and

order dated 2.8.2007 passed by Special Judge of the Designated

Court under the TADA for Bombay Blast Case No.1 of 1993, by

which the    respondent has been convicted under Section 3(3)

TADA and awarded rigorous imprisonment for 8 years with a fine

of Rs. 10,000/- and in default of payment of fine, to suffer further

RI for 2 months on the first count and on second count he has been

awarded under Section 3(3) TADA, a rigorous imprisonment for 6

years with a fine of Rs.5,000/- and in default of payment of fine, to

suffer further RI for one month.


211. In addition to the general charge of conspiracy the

Respondent (A-73) was charged for participating alongwith his co-

conspirators in the smuggling and landing of arms and ammunition

at Shekhadi and participating in transportation of the same from

Shekhadi to Bombay for committing terrorist activities. He was

further charged under the provisions of Arms Act for


                                                                 131
                                                                Page 131
possessing/storing the weapons at his garage and unauthorisedly

transporting smuggled weapons from Shekhadi to Bombay.



212. After conclusion of the trial, the respondent had been

convicted under Section 3(3) TADA, but had been acquitted of the

first charge of conspiracy.

      Hence, this appeal.


213. Heard rival submissions made by counsel for both parties

and perused the evidence on record.


214. The learned Special Judge after considering the evidence on

record against the respondent recorded the following findings:-

      "61-C)        Thus considering material in the
      confession of A-73 and aforesaid co-accused the
      same leads to the conclusion of A-73 also being
      involved in Shekadi landing operations denoted by
      said material and as such having committed
      offence under Section 3(3) of TADA for which he
      is charged at head 2ndly. Similarly, considering
      said evidence in proper perspective and same and
      particularly own confession of A-73 squarely
      denoting that he was fully aware that contraband
      goods which were shifted from trucks lo other
      vehicles where arms, ammunition, handgrenades
      and RDX etc. and still himself having transported
      the same to Bombay by driving vehicle and even
      in Bombay having committed further acts
      regarding contraband goods the same clearly
      indicates that his act were directed to further object
      of conspiracy to commit terrorist act. No doubt
      that he has received amount of Rs.1 thousand for


                                                                  132
                                                                  Page 132
      work effected by him. However the same will
      never change character of act committed by him.
      Similarly the acts committed by him were
      obviously for purposes of aiding and abetting
      terrorist accused who were to use the same for
      commission of terrorist act. A-73 having
      committed said act by contravening provision of
      Arms and Explosive Act he was also required to be
      held liable for offence under Section 6 of TADA
      for which he charged at head 3rdly. However
      unlike other accused involved in transportation
      alike A-73, A-73 after Shekhadi landing operation
      had not participated in commission of any act
      furthering object of any conspiracy. The acts were
      committed by him during early phase i.e. much
      prior to even Tiger Memon fixing target for
      commission of serial blast. A-73 had never been
      party to any conspiratorial meeting after effecting
      said landing job nor was involved in any of
      operation thereafter effected in pursuance of
      conspiracy to commit serial blast. In view of same
      though A-73 is found to be guilty for offence of
      conspiracy the same would be conspiracy to
      commit terrorist act punishable under Section 3(3)
      of TADA or in other words he cannot be held
      liable for larger conspiracy for which charge at
      head 1stly is framed against him."


215. In view of the fact that there is no evidence to show that the

respondent (A-73) ever participated in any of the conspiratorial

meetings after the said landing, or was involved in any of the

operation thereafter in pursuance of the conspiracy to commit the

serial Blast, he could be punished only for smaller conspiracy

under Section 3(3) TADA and not for the larger conspiracy for

which the charge no.1 had been framed.          In the facts and



                                                               133
                                                              Page 133
circumstances of the case, the respondent (A-73) had been

convicted and awarded sufficient punishment.


216. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.



217.      In view of the above, we do not find any cogent reason to

hold that findings recorded by the learned Designated Court are

perverse, warranting any interference by this Court. The appeal

lacks merit and is accordingly dismissed.




                                                               134
                                                              Page 134
            CRIMINAL APPEAL NO. 408 OF 2011



State of Maharashtra                           ...Appellant

                             Versus

Suleman Kasam Ghavate                         ... Respondent


218.     This appeal has been preferred against the judgment and

order dated   2.8.2007 passed by the Special Judge of the

Designated Court under the TADA for Bombay Blast Case No.1 of

1993 by which the respondent has been convicted under Section

3(3) TADA on two counts and awarded rigorous imprisonment for

7 years with a fine of Rs. 25,000/- and in default of payment of

fine, to suffer further RI for a period of six months on one count

and 7 years rigorous imprisonment under Section 3(3) TADA on

the second count. However, he had been acquitted of the first

charge of conspiracy.



219. The appeal has basically been filed only for enhancement of

punishment, or for conviction of the respondent for main charge of

conspiracy. In addition to the first charge, the general charge of

conspiracy had been framed for participating in the landing and

transportation of contraband at Shekhadi for commission of



                                                               135
                                                               Page 135
terrorist activities; for transporting the smuggled contraband,

including weapons' through his tempo bearing no.MMP-4799 from

Shekhadi to Panvel for committing terrorist acts; and further for

participating in weapons training at Shekhadi. Out of the said

charges, the charge of participation in weapons' training at

Shekhadi was not proved.

      Hence, this appeal.


220. Heard rival submissions made by the counsel for both parties

and perused the evidence on record.


221. The evidence against the said respondent has been his own

confession which had been retracted and it had been corroborated

by the confessional statements of Abdul Gani Ismail Turk (A-11),

Parvez Nazir Ahmed Shaikh (A-12), Sayyed Abdul Rehman

Shaikh (A-28), Liyakat Ali Habib Khan and Sharif Abdul Gafoor

Parkar (A-17).    His involvement in the crime has also been

corroborated by the deposition of Uttam M. Kale (PW.190) in

whose presence the confessional statement of co-accused had been

recorded. Deposition of Vijay Govind More (PW.137), a labourer

at Wangni Tower and Sanjay Pandey (PW.492) have also

supported the case of the prosecution.     The Designated Court

appreciated the evidence and held as under:-


                                                             136
                                                            Page 136
"Thus, considering material in the confession of A-
18 and aforesaid co-accused the same leads to the
conclusion of A-18 also being involved in
Shekhadi landing operation as denoted by said
material and as such having committed offence
under Section 3(3) of TADA for which he is
charged at head 2ndly clauses `a' and `b' to the
extent of transportation of contraband material of
the said landing effected by him. Similarly,
considering the manner in which he had acted in
the said episode for furthering the object of
conspiracy to commit terrorist act as denoted by
said material the same also establishes his
involvement in commission of offence of
conspiracy to commit terrorist act punishable u/s.
3(3) of TADA.

     Now taking up work of determining sentence
for A-18 & 28 in light of submission canvassed at
Bar, reasoning given during earlier part of
judgment and particularly declaration made in
consequent to same on 11th of October, 2006
regarding A-18 and 17th Oct., 2006 regarding A-28
reveals that though both of them were charged for
commission of offence of conspiracy and for
commission of offence under Section 3(3) of
TADA i.e. A-18 on 3 sub-counts & A-28 on 2 sub-
counts each of them was found guilty for
commission of offence only on two sub-counts to
the extent as found during the assessment of
evidence for commission of offences punishable
under Section 3(3) of TADA.               Without
unnecessarily reiterating every aspect connected
with decision arrived accordingly, in short it can
be said that both of them are found guilty
accordingly mainly due to acts committed by each
of them in connection with Shekhadi Landings
and/or transportation of contraband goods
smuggled by effecting the said landings. The said
landing was effected by Tiger Memon on two
occasions in month of February, 1993 in which
Tiger Memon and his associates at the behest of


                                                      137
                                                      Page 137
absconding accused Dawood Ibrahim has
smuggled arms, ammunition and explosives and
transported same from Shekhadi Coast via Wangni
Tower to Bombay.

       The evidence surfaced and/or reasoning
given thereon earlier also reveal that both A-18 &
28 since earlier had close association with Tiger
Memon and were carrying out the work of Drivers
for transportation of smuggled goods and in the
questioned landing they had transported the
contraband goods in a manner as discussed in the
earlier part of the judgment. The reasons given
earlier in terms reveal the evidence having
established that both of them were men of
confidence of Tiger Memon. The same also
reveals that they were aware and/or had become
aware about the nature of the goods which they
were transporting and/or had transported. Having
regard to the same and having regard to the fact
that both of them, even after acquiring the
knowledge had not taken any steps revealing that
they were against transportation of such a
contraband goods, which was arms and
ammunition and RDX material and since the act
committed by them being in the nature of
furthering the object of conspiracy to commit
terrorists act, they were held guilty for the offence
of a conspiracy to the said extent. Since, evidence
has not revealed that both these accused had
committed any further acts after the said
transportation and/or thereafter A-18 having
stopped the work for Anwar at the behest of whom
he was involved in the said work and so also both
of them being not connected with any of the
operation effected for achieving the object of
entire conspiracy i.e. both of them being not
involved in acquiring the training, attending
conspiratorial meetings, in which the targets were
selected etc. they could not be held guilty for
commission of offence of conspiracy to commit
the serial bomb blast etc."



                                                        138
                                                        Page 138
222.   The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


223. We do not see any cogent reason to interfere with the

impugned judgment. The appeal lacks merit and is accordingly

dismissed.




                                                             139
                                                            Page 139
           CRIMINAL APPEAL NO. 1034 OF 2012


State of Maharashtra                                  .. Appellant

                              Versus

Tulsi Ram Dondu Surve                               ... Respondent



224. This appeal has been preferred against the judgment and

order dated 2.8.2007 passed by Special Judge of the Designated

Court under the TADA for Bombay Blast case, Greater Bombay in

B.B.C. No.1 of 1993. The respondent Tulsi Ram Dondu Surve (A-

62), has been found guilty for offences punishable under Section

3(3) TADA, and on the said count, has been convicted and

sentenced to suffer RI for 9 years and a fine of Rs.50,000/- and in

default, to suffer further RI for one year. He has also been found

guilty under Section 202 IPC, and sentenced to suffer RI for 6

months and ordered to pay a fine of Rs.5,000/-, and in default of

payment of fine, he was ordered to suffer further RI for one month.

Both the sentences were directed to run concurrently. However, he

has been acquitted for charge of conspiracy.

      Hence, this appeal.




                                                               140
                                                              Page 140
225. Shri Mukul Gupta, learned senior counsel appearing for the

appellant would submit that the respondent (A-62) was a

Watchman - a government servant, at Wangni Tower. He had not

only facilitated the unloading of goods smuggled in India, rather

served the smugglers by taking money as a consideration for this

work. He was fully aware of the contraband material but he did

not inform the police authorities about the same. Therefore, he

ought to have been held guilty of the charge of conspiracy also.


226. On the contrary, Ms. Farhana Shah, learned counsel

appearing for the respondent has opposed the appeal contending

that he has already served 5 years of sentence. He did not

participate in hatching the conspiracy by attending any

conspiratorial meetings. Therefore, this Court should not grant any

indulgence, taking into consideration the parameters laid down by

this Court for hearing the appeal against order of acquittal. The

appeal is liable to be dismissed.



227. We have considered the rival submissions made by learned

counsel for the parties and perused the record.




                                                                   141
                                                               Page 141
228. Evidence against respondent:

(a)   Confessional statement of respondent (A-62)
(b)   Confessional statement of Dawood Phanse (A-14)
(c)   Confessional statement of Sharif Abdul Gafoor Parkar (A-
      17)
(d)    Deposition of Usman (PW.2)



229. Confessional statement of respondent Tulsi Ram Dondu
     Surve (A-62) :

      In his confessional statement, the respondent revealed that

he was working as a Watchman in Wangni Tower.           Dawood

Phanse (A-14) had become acquainted with him and Tiger Memon

(AA) who had been using Wangni Tower for loading, unloading

and shifting the contraband from one vehicle to another. Tiger

Memon (AA) used to keep the smuggled goods and silver in

Wangni Tower. As Harish Chandra Surve (PW.108) and Vijay

Govind More (PW.137) had also been working in the same tower

as employees, the respondent had persuaded them for helping the

smugglers. Payment was made to them from the money received

by him for rendering such assistance.    He also disclosed that

Dawood Phanse (A-14) had purchased 10 acres of land in the name

of the accused-respondent (A-62). In respect of the incident of

smuggling, he disclosed that one tempo, jeep and Maruti car

arrived at the Wangni Tower.      Tiger Memon (AA) and his


                                                             142
                                                            Page 142
associates Iqbal, Mobin, Anwar, Munna, Shafi were accompanying

the vehicles. Silver bricks were shifted from the truck into the

tempo. There were gunny bags and boxes covered with clothes

also and about 50 bags out of the aforesaid goods remained

unloaded. The said bags were taken by the truck of Alware in the

field which was in his name and were concealed in the pits by

putting soil on it. Dawood Phanse (A-14) had told him that the

contraband was "Kala Sabun", and he was warned not to disclose

the same to any one. Tiger Memon (AA) cut one bundle from the

said bundles, and saw the same to ascertain whether the goods

were proper or not. He threw the plastic at that place and packed

the same in another bundle and took the same with him. Thereafter,

on 7.1.1993 again Dawood Phanse had informed the respondent

(A-62) that goods were about to arrive and this was being informed

to Harish Chandra Surve (PW.108) and Vijay Govind More

(PW.137). One truck, three jeeps, one rickshaw and two motor

cycles came there alongwith the accused persons, namely, Dawood

Phanse (A-14), Dadamiya Parkar (A-17), Sharif Adhikari (A-60),

Abdul Gharatkar (A-34) and Tiger Memon (AA). After 5-6 days

Dawood Phanse (A-14) had paid him Rs.2,000/- for the assistance.

Dawood Phanse (A-14) used to give an amount of Rs.1000/- for




                                                              143
                                                             Page 143
each of them i.e. accused, Harish Chandra Surve (PW.108) and

Vijay Govind More (PW.137).


230. Confessional statement of Dawood Phanse (A-14) :

      The accused Dawood Phanse (A-14) did not name Tulsi

Ram Dondu Surve (A-62) but corroborated the incident of

unloading and shifting of goods at Wangni Tower.


231. Same remained the position in respect of the confessional

statement of Sharif Abdul Gafoor Parkar (A-17).              Even the

Deposition of Usman (PW.2) corroborated the same.


232. After appreciating the entire evidence, the Designated Court

came to the conclusion as under:

      "59-A ­ The aforesaid material contained in the
      confession of A-62 not only reveals his
      involvement in Shekadi landing & transportation
      but also reveals involvement of A-14, 17, 27, 34,
      42, 55, 60, PW 108, PW 137 and Tiger Memon.
      59-B -        The corroborative material to matters
      contained in confession of A-62 i.e. his
      involvement in Shekadi landing & transportation
      operation for which he is charged with is also
      found in the confession of co-accused no.17.
      59-C -        Thus considering material in the
      confession of A-62 and aforesaid co-accused the
      same leads to the conclusion of A-62 also being
      involved in Shekadi landing operation as denoted
      by said material and as such having committed
      offence u/s.3(3) of TADA for which he is charged
      at head 2ndly clause `a' and `b'. Similarly the same
      evidence also establishes his involvement in


                                                                 144
                                                                 Page 144
      commission of offences for which charge was
      framed at head 3rdly i.e. offence u/s.202 of IPC on
      count of himself in spite of being watchman and
      Government servant has still knowingly and
      intentionally omitted to give information about
      offences committed in his presence being in
      possession of contraband material unauthorisedly."


233. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


234. We have given our conscious thought to the facts but are not

convinced that the respondent can be held guilty for the charge of

larger conspiracy also. We concur with the learned Special Judge

so far as the respondent is concerned. The appeal lacks merit and

is dismissed accordingly.




                                                              145
                                                             Page 145
             CRIMINAL APPEAL NO. 416 OF 2011

State of Maharashtra Through CBI                    ...Appellant

                               Versus

Sujjad Alam                                        ... Respondent



235. This appeal has been preferred against the judgment and

order dated 2.8.2007 passed by Special Judge of the Designated

Court under the TADA for Bombay Blast Case No.1 of 1993 by

which the Respondent (A-61) had been convicted under Section

3(3) TADA and awarded rigorous imprisonment for 7 years with a

fine of Rs. 50,000/- However, Respondent (A-61) has been

acquitted of the general charge of conspiracy.

      Hence, this appeal.


236. Shri Mukul Gupta, learned senior counsel appearing for the

appellant, has submitted that the respondent had very close

association with terrorists and had been a kingpin in all the terrorist

activities and most of the accused in their confessional statements

had revealed his involvement. Therefore, he ought to have been

convicted for the charge of general conspiracy and, thus, the appeal

deserves to be allowed.




                                                                    146
                                                                   Page 146
237. On the contrary, Ms. Farhana Shah, learned counsel

appearing for the respondent, has submitted that the respondent (A-

61) has already been convicted and punished appropriately. He has

already served 3-1/2 years in prison and had paid fine, therefore, no

further punishment is required and the appeal is liable to be

dismissed.


238. The evidence against the respondent Sujjad Alam @ Iqbal

Abdul Hakim Nazir (A-61) is his own confession. In his

confessional statement, he had disclosed that his maternal uncle

Khalil Ali Nazir had been involved in landing of silver for Tiger

Memon (AA) at Shekhadi Beach. Accused (A-61) used to take

Dawood Taklya (A-14) and Abdul Aziz Gharatkar to the place of

landing in his auto rickshaw. Accused (A-61) participated in the

landing and transportation of the contraband. Accused (A-61) was

paid Rs. 2000/- per landing through Khalil. On 20th January, 1993,

Accused (A-61) went to the residence of his maternal uncle and

found Khalil, Muzammil, Shafi and other Khalil, resident of

Shrivardhan present there.      They were shifting some goods

wrapped in gunny bags from the jeep to a room. At that time, son

of Dawood Taklya Sarfaraz (A-55) was also there. Shafi, driver of

Tiger Memon(AA), asked accused (A-61) to leave the room.



                                                                147
                                                                Page 147
When they opened the gunny bags inside the room, accused (A-61)

saw that the bags contained 16 rifles and 32 cassettes (magazines).

After coming outside, A-61 saw that Khalil, resident of

Shrivardhan, was closing secret cavities in the jeep. Shafi then took

that jeep towards Mhasla. The accused (A-61), Khalil and

Muzammil took the said arms, ammunition in the auto rickshaw of

Muzammil at the residence of Muzammil and dropped the same

there. On 3rd February, 1993, his uncle Khalil asked him to help in

the landing of contraband for Tiger Memon (AA) in the night. So

A-61 went to the place of landing in his auto rickshaw alongwith

Dawood Taklya (A-14) and Abdul Aziz. After reaching there, he

found 2-3 jeeps carrying Tiger Memon (AA) and 20-25 of his

associates. The accused (A-61) was then directed to reach Tower,

upon which, he left to wake the people there. On reaching the

place the accused (A-61) parked the vehicle on one side of the

tower and slept on the back seat. After a long time, Muzammil

came to the vehicle and woke him up. Rashid and Khalil also came

there. By that time, all the vehicles from Shekhadi had arrived.

The associates of Tiger Memon (AA) were unloading and shifting

the articles inside the Tower. The accused (A-61) was forbidden to

enter inside. After sometime, Dawood, Khalil, Abdul Aziz and

accused (A-61) left the Tower in the auto rickshaw. It was in the


                                                                148
                                                                Page 148
evening of 9th February, 1993, that the accused (A-61) took

Dawood Taklya in his auto rikshaw to Mehandari. From there they

took Khalil Nazir from his residence and reached Muzammil's

residence. On being asked by Dawood Taklya, Muzammil handed

over 3 rifles and 6 cassettes in a gunny bag. All the three accused

then took the said weapons and ammunition and came to Lonery

Phatta on the highway via Goregaon and handed over the same to

Tiger Memon (AA), who had arrived there.            After 4-5 days,

Dawood Taklya sent Rs.4000/- for both the landings.


239. Confessional statement of Mohd. Phanse @ Dawood

Taklya (A-14) ­ His statement corroborated the version given by

the accused (A-61) about the landing at Shekhadi and disclosed the

role of accused (A-61) as a participant in the landing and his

facilitation in the transportation. According to him, Tiger Memon

(AA) was there with 20-25 persons. Out of them 8-10 persons

were carrying pistols in their pockets. Immediately, after the arrival

of trawler, accused (A-61) was sent alongwith his auto rickshaw to

call Rashid from Borli with his truck so he left. The goods were

unloaded and put in the trucks. Immediately, another trawler

arrived carrying the goods which were also unloaded.            Tiger

Memon (AA) made 2-3 boys carrying guns to sit over the goods



                                                                 149
                                                                 Page 149
which were loaded in the truck. Then they had reached Wangni

Tower, where the goods were unloaded. When they went inside the

Tower, he saw the men of Tiger Memon (AA) opening those boxes

and putting rifles, pistols, bullets, black wire, handgrenades and

bundles of wire with white pencil on top and "black soap" like

material at the side. Tiger Memon (AA) was sitting at their side

and counting and noting things in his diary. Once the landing and

transportation was over, co-accused (A-14) came back to his

village alongwith accused (A-61) in his auto rickshaw.


240. Confession of Khalil Ahmed Sayed Ali Nasir (A-42) ­ So

far as accused (A-61) is concerned, A-42 in his confessional

statement disclosed that on 3rd March, 1993 he and Dawood Taklya

(A-14) had reached Mhasla in the autorickshaw of accused (A-61).

Then the acccused (A-61) was sent to village Borli with

autorickshaw to bring the truck and labourers.


241. Confession of Muzammil Umar Kadri (A-25) ­ On 3rd

February, 1993, this accused (A-25) on being called reached in

front of Bashir's house in Borli. Accused (A-61) auto rickshawala

also came there sometime later after dropping Dawood Taklya (A-

14) and Khalil at Shekhadi. Sometime later, Khalil had come

alongwith another Khalil of Shrivardhan on his scooter. Khalil


                                                              150
                                                             Page 150
sent accused (A-61) to the tower just before the jeep came and

accused (A-25) also went to the tower alongwith Khalil by

following the truck. On 7th February, 1993, Dawood Taklya (A-14)

had taken him in the auto rickshaw of accused (A-61), to Shekhadi.

In the morning of 7th February, 1993 Dawood Taklya (A-14) had

come in the rickshaw of accused (A-61) and took 3 rifles and 6

cassettes which had been kept in his house earlier. The remaining

13 rifles and 26 cassettes had been recovered later on by the police

from his house.


242. Deposition of Vijay Govind More (PW.137) ­ This

witness deposed about the incident of February, 1993 stating that

Tiger Memon (AA) and his companions             came in jeeps and

motorcycles and an auto rickshaw at Wangni Tower. Accused (A-

61) was also with them. He also identified the accused (A-61) in

court.


243. The Designated Court after appreciating the entire evidence

reached the conclusion as under:

         "The aforesaid material contained in the
         confession of A-61 not only reveals his
         involvement in Shekadi landing and transportation
         but also reveals involvement of A-14, 15, 17, 25,
         27, 34, 42, 55 & Tiger Memon."




                                                                151
                                                               Page 151
244. In addition, the Designated Court also reached the

conclusion that the accused (A-61) had no knowledge about the use

to which weapons were to be put into.             In awarding the

punishment, the court took into consideration the role played by the

respondent (A-61) and concluded that charge for larger conspiracy

could not be made out.


245. It is evident that he was not allowed to enter into the Wangni

tower and thus he had no knowledge that arms had been smuggled

into India to be used in Bombay Blast, and further, the fact that the

arms were kept in the house of Muzammil, and the arms and

ammunition had been transported in the vehicle belonging to

Muzammil and not in the vehicle of accused (A-61). There is

nothing on record to show that accused (A-61) had participated in

loading and unloading of the same. His rickshaw had been used

for carrying the accused persons.        The accused (A-61) had

transported the arms, i.e. 3 rifles and 6 cassettes alongwith Dawood

Taklya from the house of Muzammil which were subsequently

taken from him by Tiger Memon (AA).


246. The scope and ambit of Section 3(3) TADA is very wide.

Punishment for the offences under section 3(3) varies from 5 years

to life imprisonment depending on the gravity of the overt act done


                                                                 152
                                                                Page 152
by particular accused. Each of them cannot be held to be at par, as

one of them may be instrumental in arranging the landing, another

maybe helping in organising and affecting transportation, some

may be given supervisory work while other persons might have

been engaged as labourers. Therefore, while determining the

quantum of punishment the precise act committed by an individual

accused is of prime consideration.


247. In the instant case, appellant (A-61) had been found guilty

on the single count of participating in landing on two occasions and

additionally of being involved in the concealment of arms and

ammunition at the house of A-25 and further for the transportation

of some arms from the house of A-25 to Lonery Phata and handing

over the same to Tiger Memon (AA). Undoubtedly he had been

working as an auto driver and was paid only for that.


248. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


249. The judgment of the learned Special Judge does not require

interference. The appeal lacks merit and is accordingly dismissed.




                                                               153
                                                               Page 153
           CRIMINAL APPEAL NO. 512 OF 2008


Abdulla Ibrahim Surti & Ors.                      ...Appellants

                               Versus

State of Maharashtra thr. CBI-STF, Bombay         ... Respondent

                                AND

           CRIMINAL APPEAL NO. 401 OF 2011

State of Maharashtra                             ....Appellant

                               Versus

Faki Ali Faki Ahmed & Ors.                       ....Respondents

                                AND

           CRIMINAL APPEAL NO. 595 OF 2011

The State of Maharashtra                         ....Appellant

                               Versus

Abdullah Ibrahim Surti                           ....Respondents



Criminal Appeal Nol. 512 of 2008

250. This appeal has been preferred against the judgments and

orders dated 21.5.2007 and 25.5.2007, passed by the Special Judge

of the Designated Court under the TADA in Bombay Blast Case

No. 1/93, Greater Bombay, by which the appellants have been

convicted under Sections 3(3) and 6 TADA.


                                                             154
                                                            Page 154
      In view of the fact that each appellant being assigned

different acts, has been charged differently and has been awarded a

different sentence, it is desirable to deal with the case of each

appellant separately to certain extent.


I.    Abdulla Ibrahim Surti (A-66):

251. Appellant (A-66) was charged for concealing 12 AK 56

rifles, 36 magazines and 19500 cartridges of AK 56 rifles which

were kept in 3 bags in a cloth and 13 cloth bags were kept in the

mango grove of Abdul Razak Subedar. These arms and

ammunition had been smuggled into India to be used for terrorist

activities and were recovered at his instance on 7.4.1993 from the

said place.

      He was further charged for disposal of the said arms and

ammunition alongwith other co-accused dumping the same in

Kandalgaon creek. And lastly for aiding and abetting the co-

accused Shabir (AA) and Jamir (A-133) having possession and

carrying fire arms and ammunition under Section 6 TADA.


      Appellant (A-66) stood acquitted on the first charge of

conspiracy. However, he has been convicted under Sections 3 (3)

TADA and awarded RI of five years and a fine of Rs.25,000/-,

and in default of payment of fine, to suffer further RI of six


                                                               155
                                                              Page 155
months. Under Section 6, has been awarded RI of six years and a

fine of Rs.25,000/- and a suitable R.I. for default of payment of

fine.

        Hence, this appeal.

252. Ms. Farhana Shah, learned counsel appearing for the

appellant (A-66) has stated that the appellant (A-66) had no

knowledge that the items being transported were arms and

ammunition. Moreover, he has not made any confession and the

confessional statement of the co-accused cannot be relied upon to

convict him. Further it was urged that he (A-66) has already served

3 years out of the sentence that has been awarded to him. Thus, the

appeal deserves to be allowed.


253. Shri Mukul Gupta, learned senior counsel appearing for the

State has submitted that confessional statement of Faki Ali Faki

Ahmed Subedar (A-74) disclosed the involvement of the appellant

in disposal of 3 wooden boxes concealed in the cattleshed of Firoz

Khan as the latter wanted to dispose of the hidden boxes of

weapons and bags of bullets in the creek after the Bombay Blast on

12.3.1993. He explained how the said contraband material was

taken in the boat and thrown in the Kandalwada Creek with the




                                                               156
                                                              Page 156
help of some persons including Abdullah Ibrahim Surti (A-66).

Therefore, the appeal deserves to be dismissed.


254. We have heard the rival submissions made by learned

counsel for the parties and perused the record.


255. Evidence against the appellant (A-66):
(a)   Confessional statement of Faki Ahmed Subedar (A-74)
(b)   Confessional statement of Janardhan Pandurang Gambas (A-
      81)
(c)   Confessional statement of Jamir Sayyed Ismail Kadri (A-133)
(d)   Deposition of Shridhar Shantaram Borkar (PW-88)
(e)   Deposition of Dattaraybhiku Udarkar (PW-89)
(f)   Deposition of Anil Ramchandra Baswat (PW-90)
(g)   Deposition of Janu Hajari (PW-378)
(h)   Deposition of Vyankatesh Hirba Rane (PW-588)


256. Confessional statement of Faki Ahmed Subedar (A-74):

      According to this accused, in the 2nd/3rd week of March, 1993,

Shabir came to him and asked for help as Firoz Khan had come from

Bombay where some communal disturbance had taken place and he

had to hide certain boxes of weapons and bags of bullets in the creek.

He wanted a boat to take those weapons to the creek. Thereafter, the

Shabbir (AA), Jamir (A-133) (dead), appellant (A-66) and Janardhan

Pandurang Gambas (A-81) removed those three wooden boxes and six



                                                              157
                                                              Page 157
greenish coloured bags kept under the haystack in their cattle shed and

kept them in the boat on the shore. Janya Sarsai was in the said boat.

Faki Ahmed Subedar (A-74) showed them torch light while bags and

boxes were being carried. Thereafter, Shabir came and told that the

bundles of weapons and bags of bullets were to be hidden in the

mango groves. At that time, appellant (A-66), Janardhan Pandurang

Gambas (A-81), and Jamir Sayyed Ismail Kadri (A-133) (dead) were

also present.


257. Confessional statement of Janardhan Pandurang Gambas
     (A-81):


      He disclosed that he had a boat and helped smugglers in landing

and transportation and, for that purpose, he had been paid by Shabbir

Rs.1000/- for each landing. He stated that on 2nd December, 1992,

Uttam Potdar (A-30) came to him and conveyed the message of

Shabbir to help him in landing of gold, silver and, accordingly, they

went to Dighi Jetty in the night. They found a large number of

labourers alongwith Shabbir and Uttam Potdar (A-30) and Mechanic

Chacha (A-136) and he participated in landing and transportation and

he was paid a sum of Rs.5,000/-. On 9 th January, 1993, he was again

contacted by Uttam Potdar (A-30) and he went for landing alongwith

Firoz Khan, Mechanic Chacha (A-136) and Shabbir Kadri. After the



                                                               158
                                                               Page 158
landing Uttam Potdar (A-30), brought 30 bundles wrapped by gunny

cloth around the box and 30 bags of military black colour and, at that

time, Mechanic Chacha (A-136) said that the boxes contained glass

wares so they had to be carried carefully. After the Bombay Blast, he

(A-81) went to Shabbir Kadri's house where he told him (A-81) that

the goods which landed on that day were contained guns and

ammunition and the same were to be hidden into a pit. They dug pits

in the mango grove of Shabbir, came back to his house again and

wrapped 12 guns, 4 each from 3 boxes, into the gunny clothes and

boxes, packing with thermacol and 26 boxes were hidden in the pit.

He (A-81) was paid Rs.1,000/- for doing the said work.         While

hiding the rifles and ammunition, Faki Ali Chacha (A-74), Abdullah

Surti (A-66) and Shabbir's father Sayed Ismail (A-105) were also

present. They opened 3 wooden boxes in the house of Faki Ali Faki

Ahmed Subedar (A-74).       Shabbir told him that the same were

magazines of guns. Thereafter, Shabbir (AA), his brother Jamir (A-

133), Abdullah Surti (A-66), Faki Ali Faki Ahmed (A-74) and he (A-

81) went to the boat which was tied near the house of Shabbir, taking

3 boxes, and 6 bags, where Janu Vethkoli was also present who neatly

arranged the 6 bags and 3 boxes in the boat. On being asked Faki Ali

Faki Ahmed Subedar (A-74) informed him (A-81) that there were




                                                              159
                                                              Page 159
bullets in the bags. Subsequently, he was informed that the said goods

have properly been kept in the creek water.


258. Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):


      He disclosed that in January 1993, he had participated in the

landing alongwith Uttam Potdar (A-30) and, at that time, on 9 th

January, 1993, he was also informed by Shabbir that silver and

weapons would arrive at Dighi Jetty on the same day. He further

deposed that some of the smuggled goods were brought to the house

of Shabbir and those wooden boxes and greenish coloured boxes were

kept in the house of his (A-133) maternal grandmother for about one

month as the house generally used to remain closed.     Subsequently,

Shabbir said that the boxes had to be shifted to the house of Ali Mian

Faki (A-74) which was in close proximity. Janardan Pandurang (A-

81), Ali Mian Faki (A-74), Abdulla Surti (A-66), Shabbir and he (A-

133) picked up those boxes and bags and took to the house of Ali

Mian Faki (A-74).

      After 4-5 days of bomb Blast on 12.3.1993, Janardan Gambas

(A-81) and Abdullah Surti (A-66) also arrived at his place. Shabbir

told them that the wooden boxes and bags had to be thrown in the

water. As per the instruction, he brought the boat near the village and

Shabbir, Firoz, Abu Bakar, Janardhan Gambas (A-81), Ali Mian Faki


                                                               160
                                                               Page 160
(A-74), Abdullah Surti (A-66) and A-133 loaded three wooden boxes

and few green colour bags in the boat from the house of Ali Mian Faki

(A-74). Shabbir had said that those boxes and bags have to be thrown

in creek near Kandalwada. Next night Shabir took him (A-133) to the

house of Ali Mian Faki (A-74). Janardan Gambas (A-81), Ali Mian

Faki (A-74) and Abdullah (A-66), participated in burying the arms

bags and sacks in the mango grove of Subedar.


259. Deposition of Shridhar Shantaram Borkar (PW-88):

         He was the panch witness to the disclosure statement made by

Faki Ali Faki Ahmed Subedar (A-74) on 7.4.1993, and also the

recovery of weapons from the mango grove.


260. Deposition of Dattaraybhiku Udarkar (PW-89):

         He was the panch witness to the statement made by Janu

Vetkholi (PW-378) on 8.4.1993, and to the recovery of weapons from

Kandalwada creek. He recognised the seizure panchnama Exh. 503 in

court.


261. Deposition of Anil Ramchandra Baswat (PW-90):

         He deposed that he had arranged for a boat and took police

party and Janu Vetkholi (PW-378) into Kandalgaon creek, wherefrom




                                                              161
                                                              Page 161
three wooden boxes and six military colour bags were found from

which weapons and ammunition were recovered.


262. Deposition of Janu Vetkholi (PW-378) :

       His deposition revealed that he was earlier an accused but

subsequently discharged. He did not name the appellant A-66,

however, corroborated the confessional statement made by all others

including Ali Mian Faki (A-74) and Janardan Pandurang Gambas (A-

81).


263. Deposition of Vyankatesh Hirba Rane (PW-588):

       He had recorded the disclosure statement made by Faki Ali Faki

Ahmed Subedar (A-74) in presence of the panch witnesses on

7.4.1993. In the said statement, he had disclosed the location where

arms were hidden. Faki Ali Faki Ahmed Subedar (A-74) led the police

party to mango grove from where the weapons were recovered.

Vyankatesh Hirba Rane (PW-588) recorded the FIR and arrested Janu

Vetkholi (PW-378) on 8.4.1993. Janu Vekholi (PW-378) took the

police party to the creek from where three wooden boxes and six

military coloured boxes were recovered containing weapons.


264.   The learned Designated Court after appreciating the evidence

came to the conclusion that the involvement of the appellant (A-66) in



                                                              162
                                                              Page 162
commission of similar acts was established by the material contained

in confession of the appellants (A-74 and A-81) and Jamir Sayyed

Ismail Kadri (A-133) and he was held guilty for commission of

offences under sections 3(3) and 6 TADA.


265. We find no reason to interfere with the judgment of the learned

Special Judge. The appeal with respect to appellant (A-66) lacks merit

and is accordingly dismissed.


II.    Faki Ali Faki Ahmed Subedar (A-74) :

266. Appellant (A-74) was further charged for concealing 12 AK

56 rifles, 36 magazines and 19500 cartridges of AK 56 rifles

which were kept in 3 bags in a cloth and 13 cloth bags in the

mango grove of Abdul Razak Subedar. These arms and

ammunition had been smuggled into India to be used for terrorist

activities and had been recovered at his instance on 7.4.1993 from

the said place.

      He was further charged with disposal of the said arms and

ammunition alongwith other co-accused dumping the same in

Kandalgaon creek.

      He was lastly charged with aiding, abetting the co-accused

Shabir and Jamir (absconding) having in possession and carrying

fire arms and ammunition under Section 6 TADA.


                                                              163
                                                              Page 163
267. He had been acquitted on the first charge of conspiracy.

However, he had been convicted under Sections 3 (3) TADA and

awarded RI of five years and a fine of Rs.25,000/-, in default of

payment of fine, to suffer further RI of six months. Under Section

6, he had been awarded RI of six years and a fine of Rs.25,000/-

and a suitable R.I. for default of payment of fine.


268. Ms. Farhana Shah, learned counsel appearing for the

appellant (A-74) and Shri Mukul Gupta, learned senior counsel

appearing for the State have raised the same contentions which

have been raised in respect of Abdulla Ibrahim Surti (A-66).


269. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


270. Evidence against the appellant (A-74):

(a)   Confessional statement of the appellant (A-74)
(b)   Confessional statement of Janardhan Pandurang Gambas (A-81)
(c)   Confessional statement of Jamir Sayyed Ismail Kadri (A-133)
(d)   Deposition of Shridhar Shantaram Borkar (PW-88)
(e)   Deposition of Dattatray Udharkar (PW-89)
(f)   Deposition of Anil Baswat (PW-90)
(g)   Deposition of Janu Hajari (PW-378)
(i)   Deposition of Rajan Dhoble (PW-585)
(j)   Deposition of Pratap Dighavkar (PW-586)


                                                               164
                                                               Page 164
271. Confessional Statement of Faki Ali Faki Ahmed Subedar
     (A-74):

   He disclosed that he was a neighbour of Sayed Ismail Kadri (A-

105) and his sons Shabir (AA) and Jamir (A-133) indulged in

smuggling activities and had connections with Uttam Potdar (A-

30). After the bomb Blast on 12th March, 1993, Shabir came to his

(A-74) house and asked him to help one Firoz Khan who had come

from Bombay and Firoz Khan told him to hide the boxes of

weapons and bags of bullets in the creek. Therefore, he wanted his

help to take the things upto the boat. Shabir, his brother Jamir (A-

133), Abdullah Surti (A-66) and Janardhan Gambas (A-81)

removed three wooden boxes and six greenish coloured bags kept

under the haystack in their cattleshed and kept it in the boat at the

shore. Janu Vetkholi (PW. 378) was present in the said boat. The

appellant (A-74) showed them torch light while bags and boxes

were being carried. They sailed the boat towards Kandalwada

Creek. On the next day, Shabir came and said that bundles of

weapons and bags of bullets which were in his possession, were to

be hidden in the mango groves. So again in the night the appellant

(A-74) along with other co-accused took the 13 greenish coloured

bags of bullets of guns and 3 bundles having guns wrapped in the

plastic paper from under the haystack and they were buried in the



                                                                165
                                                                Page 165
pit dug in the mango grove of Abdul Razak Subedar who was

staying in Nairobi at that time and the same was filled and covered

by soil and hay. At that time also, the appellant (A-74) had shown

the torch light.   The appellant (A-74) was taken to the police

station after making the inquiry about Shabir (AA) and Jamir (A-

133) and the appellant (A-74) disclosed that 13 greenish bags of

bullets of guns wrapped in the wax cloth had been buried in the

mango grove of Abdul Razak Subedar. The said items were earlier

recovered from there on the confessional statement of the appellant

(A-74). He took out the hidden articles from the pit by removing

the soil and hay and produced the same. The police seized the

arms and ammunition.


272. Confessional statement of Janardhan Pandurang Gambas
     (A-81):


      He has disclosed in his confessional statement that after the

Blast, Jamir Sayyed Ismail Kadri (A-133) came to Gambas's (A-

81) house and alongwith Abdulla Ibrahim Surti (A-66), Faki Ali

Faki Ahmed Subedar (A-74), Shabir and his father (A-105), they

hid the weapons in mango grove that landed on 9.2.1993 at Dighi.

Thereafter, Gambas (A-81), Jamir Sayyed Ismail Kadri (A-133),

Abdulla Ibrahim Surti (A-66) and Faki Ali Faki Ahmed Subedar



                                                               166
                                                              Page 166
(A-74) took out three boxes and six packets from the house of A-

74 and placed them in a boat with the help of Janu Vetkholi (PW-

378), who took the boat to Mahendali creek. Faki Ali Faki Ahmed

Subedar (A-74) told Gambas (A-81) that the boxes contained

bullets and Shabir had informed Gambas (A-81) that the goods had

been kept in creek water.

      Thus, the confession of Gambas (A-81) corroborates the

confession of Faki Ali Faki Ahmed Subedar (A-74) in material

respects in so far as the hiding of weapons in mango grove is

concerned and also about taking the weapons to a boat and hiding

them in creek water after the Blast.


273. Confessional statement of Jamir Sayyed Ismail Kadri (A-133):

      He had participated in the landing at Dighi and he knew that

weapons had been smuggled into India. Boxes containing weapons

were kept at the house of Faki Ali Faki Ahmed Subedar (A-74) on

instructions of Shabir (AA) by Jamir Sayyed Ismail Kadri (A-133),

Abdulla Ibrahim Surti (A-66) and Janardhan Pandurang Gambas

(A-81). Faki Ali Faki Ahmed Subedar (A-74) alongwith others

loaded three wooden boxes and few green bags in the boat of Janu

Vetkholi (PW-378), which Shabir and Firoz threw in the

Kandalwada creek. Next day, Shabir took Jamir Sayyed Ismail



                                                              167
                                                              Page 167
Kadri (A-133) to the house of Faki Ali Faki Ahmed Subedar (A-

74), where Abdulla Ibrahim Surti (A-66) and Gambas (A-81) were

already present. They buried the bags containing weapons in the

mango grove at a little distance from his house. Jamir Sayyed

Ismail Kadri (A-133) was present in the house of Faki Ali Faki

Ahmed Subedar (A-74) when police raided his house searching for

Shabir after the Blast.


274. Deposition of Shridhar Shanta Ram Borkar (PW-88):

      He revealed that he was called at the police station by P.S.I.

VH Rane (PW.588) through the Constable. When he reached there

he found two more persons present in the room and P.S.I. VH

Rane (PW.588) told him that one of them was Sonkar, resident of

the village. He was told that the second person was arrested in

connection with the Bombay Blast and for that purpose P.S.I. Rane

wanted the witness to become a panch witness. The witness was

examined in his presence. After preparing the panchnama (Ext.

448) he disclosed his name to be Faki Ali Faki Ahmed Subedar (A-

74) and he got some recovery effected from Shabir Kadri's

compound. Thus, the panchnama was drawn up about the said

event (Ext. 449). Thereafter, the witness (PW.88), Co-panch, the

said accused (A-74) and VH Rane (PW.588) went to the place at



                                                                168
                                                               Page 168
Agarwada as shown by the said accused.          After entering the

compound he (A-74) said that the weapons were concealed

beneath the grass. The accused (A-74) thereafter removed the

grass from the said place and a trench could be seen. The said

trench contained three black coloured bundles. A-74 took out the

said three bundles. The said trench was also contained 13 military

coloured cloth bags. All the said 13 bags were taken out of the said

trench. On opening the said trench four rifles and twelve

magazines were found wrapped in a gunny bag. The said four rifles

were having black colour barrel and wooden colour grip. The

rifles were bearing some numbers but the same were illegible as it

had been rubbed off. The first military coloured bag contained two

rectangular tin boxes, one of the boxes was opened contained 750

cartridges. The second tin box was sealed and the same was not

opened in his (PW-88) presence. The remaining 12 military

coloured bags contained two rectangular tin boxes each like the

boxes found in the first bag and on opening the tin boxes they were

found containing 750 cartridges each. The panchnama of the said

articles was drawn by P.S.I. Rane (PW.588). One of the rifle out of

12 rifles and one of magazines and five cartridges was taken by the

police by way of sample and the same were sealed.




                                                                169
                                                               Page 169
      In his cross-examination he has admitted that he had

recorded the date 7.4.1993 in his small diary on which day he was

made the panch witness. He further deposed that statement of Faki

Ali Faki Ahmed Subedar (A-74) was recorded wherein he had

disclosed that the arms and ammunition had been concealed by

three persons.   He has admitted in his cross-examination that he

had signed a large number of slips/labels. All the labels signed by

him were not pasted upon all the articles.

      He further deposed that he was not in a position to identify

the boxes or say that the boxes shown to him in the court were the

same which had been recovered from the grove of Faki Ali Faki

Ahmed Subedar (A-74). He has also admitted that certain

newspapers had been used for sealing the recovered articles which

were of the date subsequent to the date of recovery i.e. 7.4.1993,

for example. Bombay Sakal dated 9.4.1993 and Krushival dated

13.4.1993.


275. Deposition of Dattatray Udharkar (PW-89):

      He revealed that he is a recovery witness on 8.4.1993. This

witness has deposed that he was called at the police station to act as

a panch witness. The accused person arrested by the police was

also at the police station. On being asked the accused person



                                                                 170
                                                                 Page 170
disclosed his name as Janu Vethkoli. He disclosed that certain

weapons had been hidden in creeks. All the persons alongwith the

police party and said accused and swimmers went in a fishing boat

around Kandalwada and they waited till the low tide was complete.

As the water recedes the signs of the bags were seen in the water

and the mud of the creek. The said bags were of military colour.

Three wooden boxes were also seen at some distance away from

the said bags. The said six bags and 3 wooden boxes were taken in

the boat. The mouth of one of the bags was loose. The said bag was

opened. It contained two sealed tin boxes. One of the boxes was

opened and found to contain cartridges. Each box contained 30

paper boxes with 25 cartridges each. The second box was not

opened in his presence. The box contained 13 magazines. The

panchnama of recovery was prepared. However, when the boxes

were opened in the court, newspaper in which boxes had been

wrapped was of date subsequent to the date of recovery e.g. Nava

Kaal dated 13.4.1993. He identified the green colour bag recovered

from the creek.


276. Deposition of Anil Baswat (PW-90):

      He revealed that he was a panch witness of recovery on

8.4.1993. He went to the creek alongwith Mhasla and Bombay



                                                              171
                                                             Page 171
police and one Janu Vethkoli (PW.378) was also in the boat. There

they found three wooden boxes and 6 military cloth boxes at the

shore of Kandalwada creek. They got down from the boat and

brought the said articles and kept them in the boat. They returned

to village Pabala by the same boat.

      In his cross-examination, he has admitted that one of the

newspapers used for wrapping the articles was dated 13.4.1993

which is subsequent to the date of recovery.


277. Deposition of Janu Vethkoli (PW-378) :

      He revealed that he was earlier accused but subsequently

discharged.   He had been arrested in connection with Bombay

blast and prior to the Bombay blast he had been called by Jamir

Sayyed Ismail Kadri (A-133) (dead) to bring his boat. Accordingly,

he went to Agarwada with his (PW. 378) boat and Jamir Sayyed

Ismail Kadri (A-133) told him to wait there. He reached there and

after reaching the sea shore at Agarwada he found that Shabir was

present. He was asked to anchor his boat and wait. Accordingly, he

waited. Thereafter, Shabir told him that there is a foul smell of

things in his house and hence the same is to be thrown away in the

sea. Two persons who were present alongwith Shabbir transported

the things alongwith them. Shabir kept the same in the boat. The



                                                              172
                                                             Page 172
things had been wrapped in a gunny bag. Shabbir also boarded his

boat and the boat was taken in the creek away from the shore.

Upon reaching the creek, Shabir threw away the said articles

wrapped in the gunny bag in the water. Thereafter, the witness took

the boat to the shore of Agarwada. Shabir alighted from the boat

and the witness returned to his village. Shabir did not give any

money to PW. 378 though he promised to pay the same.


278. Deposition of Rajan Dhoble (PW-585):

      In his deposition, he reveals that the recovery from the

Kandalwada creek was effected and three wooden boxes were

found and opened at the sea shore. The said bags contained 18, 13

and 13 magazines of black colour. The said recovery had been

made at the instance of Faki Ali Faki Ahmed Subedar (A-74).

      In his cross-examination he (PW-585) admitted that one of

the newspapers in which the said articles had been wrapped was

subsequent to the date of recovery as it was of 13.4.1993. He is the

officer who had arrested Faki Ali Faki Ahmed Subedar (A-74).


279. Deposition of Pratap Dighavkar (PW-586):

      He revealed that while interrogating Faki Ali Faki Ahmed

Subedar (A-74), the said accused expressed his desire to make a

voluntary confession. Thus, on the same day he wrote a letter to the


                                                                173
                                                               Page 173
S.P. Raigad requesting him to record his confession and he was

produced for recording the confession on 7.5.1993 and it was so

recorded.


280. With regard to Faki Ali Faki Ahmed Subedar (A-74), the

Designated court came to the conclusion that on the basis of

disclosure statement made by the appellant (A-74), 12 AK-56 rifles

and 36 magazines and cartridges were recovered from mango

groves. The appellant (A-74) was having knowledge about the

same due to being involved in shifting the said contraband from the

house of Jamir Sayyed Ismail Kadri (A-133) and Shabbir (AA) to

said mango groves along with Jamir Sayyed Ismail Kadri (A-133)

and other co-accused. It was held that said acts and the further acts

of the appellant (A-74) of giving assistance in dumping the

cartridges of AK-56 rifles and magazines in Kandalwada creek,

would make him guilty for commission of offences under sections

3(3) and 6 TADA


281. We find no evidence on record warranting the interference

with the judgment of the learned Designated Court. The appeal

with regard to appellant (A-74) lacks merit and is accordingly

dismissed.




                                                                174
                                                                Page 174
III.   Janardhan Pandurang Gambas (A-81):

282.        Appellant (A-81) was further charged for participating

and assisting the co-accused Mechanic Chacha (A-136), Shabir and

Jamir Kadri (A-133), Feroz Khan and co-accused Uttam Potdar (A-

30) in smuggling, landing and transportation of arms, ammunition

and explosives smuggled in India on 9.1.1993. He was further

charged with aiding and abetting, wanted accused Shabir and Jamir

Kadri (A-133) and Faki Ali Faki Ahmed Subedar (A-74) in

concealing 12 AK 56 rifles, 36 magazines and 19500 cartridges of

AK 56 rifles in the mango grove of Abdul Razak Subedar,

knowingly and intentionally that these arms and ammunition had

been smuggled into the country for committing terrorist acts.

Lastly he was charged with aiding and abetting co-accused

Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-

74), Sayed Ismail Sayed Ali Kadri (A-105) etc. in disposal of arms

and ammunition by dumping the said consignment of arms and

ammunition in Kandalgaon Creek which was recovered on

8.4.1993.


283. After conclusion of the trial, appellant (A-81) stood

convicted and sentenced to suffer RI for 6 years and a fine of

Rs.50,000/-, and a suitable R.I. for default of payment of fine



                                                              175
                                                             Page 175
under Section 3(3) TADA and further sentenced to suffer RI

for 3 years and a fine of Rs.25,000/- for conviction under Section

111 read with Section 135(b) of the Customs Act, 1962.


284. Ms. Farhana Shah, learned counsel appearing for the

appellant (A-81) and Shri Mukul Gupta, learned senior counsel

appearing for the State have raised the same contentions which

have been raised in respect of Abdulla Ibrahim Surti (A-66).


285. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


286.   Evidence against the appellant (A-81):

(a)    Confessional statement of the appellant (A-81)
(b)    Confessional statement of Faki Ali Faki Ahmed Subedar (A-
       74)
(c)    Confessional statement of Jamir Sayyed Ismail Kadri (A-
       133)
(d)    Confessional statement of Mechanic Chacha (A-136)
(e)    Deposition of Tikaram Shrawan Bhal (PW-191)



287. Confessional Statement          of   Janardhan     Pandurang
     Gambas (A-81):

       In his own confession he has admitted that he was a

fisherman and used to help Shabir and Jamir Kadri (A-133) in



                                                               176
                                                               Page 176
smuggling. He participated in landing on 9.1.1993 at Dighi Jetty

wherein arms and ammunition had been smuggled into the country

with Uttam Shantaram Potdar (A-30), Mechanic Chacha (A-136)

etc. and facilitated their transportation. He further confessed that

he rendered assistance in hiding the said weapons in the mango

grove of Abdul Razak Subedar alongwith Abdullah Ibrahim Surti

(A-66), Faki Ali Faki Ahmed Subedar (A-74), Sayed Ismail Sayed

Ali Kadri (A-105) etc. He further said that he helped Shabir,

Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-

74) in taking the boxes from the house of Faki Ali Faki Ahmed

Subedar (A-74) containing weapons and hiding them in mango

grove. He has also admitted that he was told by Shabir (AA) that

the boxes contained guns and further admitted that he had been

informed by Faki Ali Faki Ahmed Subedar (A-74) that the boxes

contained bullets.


288. Confessional Statement of Faki Ali Faki Ahmed Subedar
     (A-74):

      In his confession he has admitted that he had met the

appellant (A-81) at the house of Shabir and took the smuggled

goods from there with the help of appellant (A-81), duly assisted

by Abdullah Ibrahim Surti (A-66) and Jamir Sayyed Ismail Kadri

(A-133).


                                                                177
                                                               Page 177
289. Confessional Statement of Jamir Sayyed Ismail Kadri
     (A-133):

      He disclosed that in January 1993 he met Uttam Shantaram

Potdar (A-30), Feroz Abdul Rashid Khan and Salim (A-134) and

on 9.1.1993 Uttam Shantaram Potdar (A-30) came to his house on

motorcycle and asked his help in landing work.

      So far as appellant (A-81) is concerned he disclosed that the

wooden boxes and green coloured bags after being smuggled into

this country were kept in the house of the maternal grandmother of

Shabbir and were then shifted to the house of Faki Ahmed Subedar

(A-74) with the help of appellant (A-81), Faki Ali Faki Ahmed

Subedar (A-74) and Abdulla Ibrahim Surti (A-66). He further

deposed that it was with the help of Abdullah Ibrahim Surti (A-66)

and the present appellant (A-81) that the goods were loaded in the

boat which were to be dumped in the sea. It was duly supported by

Janu Vethkoli (PW.378). He has also deposed that appellant (A-

81) assisted in hiding weapons in the mango grove after taking

away the same from the house of Faki Ahmed Subedar (A-74).


290. Confessional Statement of Mechanic Chacha (A-136):

      He does not name the present appellant (A-81) directly but

disclosed that it was on the instructions of co-accused that weapons



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                                                               Page 178
were hidden by Shabir. There are further depositions of Janu

Vethkoli (PW.378), T.S. Bhal (PW.191),          Shridhar Borkar

(PW.88), Dattatray (PW.89), Anil Baswat (PW.90) and Ashok

(PW.670) to support the allegations against the present appellant

A-81.


291. Deposition of Tikaram Shrawan Bhal (PW-191):

        He has recorded the confessional statement of Gambas (A-

81) as well as the confession of Faki Ali Faki Ahmed Subedar (A-

74). He had deposed that he had recorded the same strictly in

accordance with law, and it was a voluntary confessional statement

and after recording the same he had given time to re-think as

required in law, and after recording the confession, the same was

forwarded to CJM, Alibagh on 21.5.1993.


292. The issue whether confessional statements made by Faki Ali

Faki Ahmed Subedar (A-74) and Janardhan Pandurang Gambas

(A-81) were voluntary, had been considered by the Designated

Court in its judgment and after considering all the objections it

came to the conclusion that Faki Ali Faki Ahmed Subedar (A-74)

and Janardhan Pandurang Gambas (A-81) had made confessional

statement voluntarily as T.S. Bhal (PW.191), S.P., Raigad has

deposed that the appellant (A-81) was produced by Ashok


                                                              179
                                                              Page 179
Krishanji Chandgude (PW.670) before him on 20.5.1993 and

after asking certain questions to him, T.S. Bhal (PW.191) was fully

satisfied that appellant (A-81) wanted to make a voluntary

confession. He was again asked to be produced on 21.5.1993 and

on that day appellant (A-81) narrated the entire matter and his

confession has been recorded verbatim. The Designated Court

rejected the suggestion in his (A-81) Section 313 Cr.P.C. statement

before the court that he had never been produced before T.S. Bhal

(PW.191) on either of the two days as claimed by the prosecution

and his thumb impression had been obtained on blank papers while

he was in custody of Alibagh Police Station. The theory was

rejected.


293. After appreciating the evidence on record the learned

Designated Court came to the conclusion that the involvement of

the appellant (A-81) in landing at Dighi Jetty is established, but

there is hardly any evidence to reveal that the appellant (A-81) had

knowledge of contraband goods being arms and ammunitions, and

thus the appellant (A-81) cannot be held liable for offence under

Section 3(3) TADA on said count i.e. first limb of second charge,

but guilty for offence punishable under Section 111 read with

Section 135(b) of Customs Act, 1962 for the same.



                                                                180
                                                               Page 180
      However it was held that the appellant (A-81) after having

acquired the knowledge about nature of said contraband being arms

and ammunition and still having committed acts mentioned in

second and third limbs of second charge i.e. concealment of

weapons in mango groves and dumping of cartiridges and

magazines in Khandalgaon creek, he would be guilty for

commission of offence under Section 3(3) TADA for the said

offences.


294. More so, the Designated Court has taken into consideration

the other confessional statements of other accused to support the

prosecution case. We are not inclined to interfere with the

judgment of the Designated court. The appeal with reference to

Gambas (A-81) lacks merit and is accordingly dismissed.


IV.   Sayed @ Mujju Ismail Ibrahim Kadri (A-104):

295. Appellant (A-104) was further charged with aiding, abetting

and knowingly and intentionally facilitating the commission of

terrorist acts by transporting AK 56 rifles in his motor jeep No.

MH-06-A-9175 from Mhasla to Bombay and delivering it to co-

accused. He was further charged for possessing and concealing five

plastic boxes containing initiating devices of hand grenades

smuggled into India for committing terrorist acts, thus charged


                                                              181
                                                             Page 181
under Section 3(3) TADA. He was lastly charged with

contravening the provisions of Arms Act and Rules and acquiring

the possession of fire arms and ammunition and five plastic boxes

containing initiating devices of hand grenades, thus charged under

Section 6 TADA.


296. He was acquitted of first charge of criminal conspiracy.

However, he was convicted under Section 3(3) TADA and

sentenced to suffer 5 years RI and a fine of Rs.10,000/- and a

suitable R.I. for default of payment of fine.


297. Ms. Farhana Shah, learned counsel appearing for the

appellant (A-104) has submitted that the appellant has not made

any confession that can be used against him and placing a heavy

reliance on the confessional statement of the co-accused is

erroneous. Moreover, the appellant has already served 3 years of

the sentence that was awarded to him. Thus, the appeal should be

allowed.


298. Shri Mukul Gupta, learned senior counsel appearing for the

State has submitted that the recovery was made at the behest of the

appellant and his knowledge of the place where the contraband




                                                               182
                                                              Page 182
material was kept implicates him in the present case. Therefore, the

appeal deserves to be dismissed.


299. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


300. Evidence against the appellant (A-104):

(a)   Deposition of Laxman Nakti (PW-91)

(b)   Deposition of Vasant Jadhav (PW-484)

(b)   Deposition of Dayanand Dhome (PW-573)

(c)   Deposition of Pratap Dighavkar (PW-586)


301. Deposition of Laxman Nakti (PW-91):

      He proved the recovery of arms and ammunition on

17.4.1993 wherein he deposed that recovery was made at the

behest of disclosure statement of appellant (A-104). He has further

deposed that the police party whom the said witness accompanied

was led by appellant (A-104) to a lavatory in the courtyard of the

house of Subedar. He removed the dry leaves on the ground at the

said place and thereafter took out a plastic bag which was below

the said dry leaves. The mouth of the said bag was closed by tying

the same by means of a string. It was a green colour plastic bag and




                                                                183
                                                               Page 183
the same was opened and five tin boxes of similar size were

recovered. He has also proved the disclosure panchnama.


302. Deposition of Vasant Jadhav (PW-484):

      He revealed that he was incharge of bomb detection and

disposal squad. On 18.4.1993, P.S.I. Gahrate from Mhasla Police

Station came to his office with a letter sent by Sub-Divisional

Officer, Raigad and a plastic box. He examined the material

suspected to be explosives in the plastic box. He sent it for FSL

and received the report. (Ext. 2650).


303. Deposition of Dayanand Dhome (PW-573):

      In his deposition, he revealed that he was instructed to seize

motor jeep bearing registration No. MH-06-A-1 in connection with

C.R.No. 6/1993 and he was the person who arrested appellant (A-

104) in the presence of two panchas and the panchnama was

prepared (Ext. 1996). He has also deposed that on being

interrogated, appellant (A-104) gave information regarding

explosives which were recovered in presence of the panch

witnesses. It was recovered from the lavatory of the house of

Subedar. It contained a military colour bag containing five plastic

round shape boxes. The panchnama was prepared and it was

proved before the court.


                                                               184
                                                               Page 184
304. Deposition of Pratap Dighavkar (PW-586):

      He revealed that he instructed P.S.I. Gahrate to send the

explosives seized on 17.4.1993 for Bomb Disposal Unit, Santacruz

and he proved the letter by which the said explosives were sent for

disposal. (Ext. 2024). He (PW. 586) further deposed that the

sample was taken out of the recovery and sent for FSL report.


305. The learned Designed Court after appreciating the evidence

concluded that the appellant (A-104) having knowledge of said

articles being kept at said place reveals his authorship of keeping

them at said place. The same not being rebutted by the appellant

(A-104) would lead to conclusion of him being in possession of

contraband material and liable for commission of offence under

section 3(3) TADA i.e. second limb of second charge.

      However, it was held that there being no sufficient evidence

to establish offence under section 6 TADA, he cannot be held

liable for the same. Similarly there being no evidence to establish

that the appellant (A-104) transported AK-56 rifles in motor jeep

from Mhasla to Bombay i.e. first limb of second charge, he cannot

be held guilty for the same.




                                                                185
                                                                Page 185
306. We find no cogent evidence on record requiring interference

with the judgment of the learned Designated Court. The appeal

with reference to the appellant (A-104) lacks merit and is

accordingly dismissed.


V.       Srikrishna Yeshwant Pashilkar (A-110):


307. Appellant (A-110) was further charged for allowing the

accused persons to smuggle and transport arms and ammunition

into India for the purpose of committing terrorist acts, by illegal

omission to thoroughly check the motor lorries carrying arms,

ammunition and other contraband though intercepted by them on

the night of 9.1.1993 at Gondghar Phata. He was further charged

with failing to seize the aforesaid motor truck and its contents in

lieu of bribe of Rs.7 lakhs agreed by all of them on negotiation

with the co-accused Uttam Potdar (A-30), Custom Inspector Gurav

(A-82), thereby, facilitating the commission of terrorist activities

on 12.3.1993. Thus, charged under Section 3(3) TADA.


308. He was awarded sentence of 6 years under Section 3(3)

TADA and a fine of Rs.25,000/-, in default of payment of fine, to

suffer further RI of 6 months. He has already served more than 3

years.




                                                               186
                                                               Page 186
309. Ms. Farhana Shah, learned counsel appearing for the

appellant has submitted that the appellant (A-110) has not made

any confession and reliance on the confessional statement of the

co-accused by the learned Designated Court was erroneous. Thus,

the appeal deserves to be allowed.


310. Shri Mukul Gupta, learned senior counsel appearing for the

State has submitted that Uttam Shantaram Potdar (A-30)

established the presence of the appellant (A-110) during the

incident of interception of trucks at Gondghar Phata therefore, the

appellant was involved in allowing arms and ammunition to be

transported into India. Thus, the appeal deserves to be dismissed.


311. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


312. Evidence against the appellant (A-110):

(a)   Confessional statement of Uttam Potdar (A-30)
(b)   Deposition of Dilip Pansare (PW-97)
(c)   Deposition of other witnesses



313. Confessional Statement of Uttam Potdar (A-30):

      In his confessional statement, he stated that as the

smuggling party did not have money to pay to the police when they


                                                                187
                                                                Page 187
were intercepted while smuggling the contraband, five silver bricks

from the first truck were given to the appellant (A-110) who was

specifically named by the co-accused (A-30).

      In the confessional statements of co-accused Dawood

Taklya Mohammed Phanse (A-14), Jaywant Keshav Gurav (A-82),

Salim Kutta (A-134) and Mechanic Chacha (A-136) though did not

name the appellant (A-110) specifically but they corroborated the

version of the prosecution of interception by the police of

Shrivardhan Police Station headed by Vijay Krishnaji Patil (A-

116) and alongwith silver bricks, some wooden boxes were also in

the truck.


314. Deposition of Dilip Pansare (PW-97):

      In his deposition he revealed that he was working as a

mechanic in the State Road Transport Corporation and was a

childhood friend of Uttam Potdar (A-30) who used to help him in

transporting and smuggling the goods alongwith others. He had

brought the truck for transporting the smuggled contraband on

9.1.1993 and when they were bringing the contraband in two

trucks one of them was being driven by him. They were

intercepted by the police of Shrivardhan Police Station at

Gondghar Phata junction. He (PW 97)        stopped the vehicle on



                                                               188
                                                              Page 188
getting the signals by the police. The appellant (A-110) got down

from the jeep and he heard the appellant (A-110) shouting to take

out the key of the said vehicle and bring the driver to him. He (A-

110) came near the truck and took away the keys of the first truck.

Other police men started shouting that there was silver in the truck.

Mechanic Chacha (A-136), Shabir Kadri and Uttam Potdar (A-30)

negotiated with the officer Vijay Krishnaji Patil (A-116) for about

half an hour. Gurav, the Customs Officer (A-82) also arrived and

after negotiating for about half an hour, five silver bricks were

taken from the truck in the police jeep by Hawaldar and the key of

the truck was returned to the said witness (PW. 97).


315. Sujjat Peoplankar (PW-158), Bhaskar Boda (PW-159),

Gopichand Sathnag (PW-160), Tukaram Kalankar (PW-161),

Ganpat Giri (PW-162), Anant Lad (PW-166) and Dhiryasheel

Koltharkar (PW-167) have deposed that the defence taken by

Vijay Krishnaji Patil (A-116) and the appellant (A-110) that they

had gone to a village for patrolling was false as none of them had

reached that village on that day.


316. The learned Designated Court after appreciating the

evidence came to the conclusion that landing of contraband

material took place at Dighi Jetty on 9.1.1993 during night time


                                                                 189
                                                                Page 189
and goods were transported from said Jetty in two trucks. The said

contraband contained arms and ammunition, AK-56 rifles and

bullets etc. The police party of Shrivardhan had intercepted the

convoy carrying said contraband at Gondghar Phata. Furthermore it

was held that confessions of co-accused and Dilip Bhiku Pansare

(PW-97) reveal the identity and involvement of the appellant (A-

110) in the landing episode.

      However, it was further held that the appellant (A-110) was

member of police party headed by his superior Vijay Krishnaji

Patil (A-116) and though the appellant (A-110) could not be said to

be responsible for taking decision of permitting further

transportation of said goods, however taking into account the fact

that he had not reported about Vijay Krishnaji Patil (A-116) to

higher officials, reveals that he had also connived with Vijay

Krishnaji Patil (A-116) in performing said acts.


317. We find no evidence on record requiring interference with

the judgment of the learned Designated Court. The appeal with

reference to appellant (A-110) lacks merit and is accordingly

dismissed.




                                                               190
                                                              Page 190
318. So far as the serious objection that when the contraband

material, arms and ammunition recovered at the disclosure

statements of the appellants were opened in the court the material

they were wrapped were subsequent to the date of recovery i.e.

8.4.1993. This has been explained fully in the court by Pratap

Dighavkar (PW-586).

      He deposed that as some of the samples had to be taken out

of the recovered material and sent for FSL report, it was re-opened

on 18.4.1993 and samples had been sent for FSL. Thus, the

contraband materials recovered on the disclosure statement of

these appellants were further wrapped in newspapers. So, it was

quite possible that newspapers upto 18.4.1993 could have been

used. None of the appellants had put any further question on

possibility of tampering of the evidence to the said witness (PW-

586), though he proved the letter with which the contraband

materials were sent for FSL and the FSL report itself, but none of

the appellants put any question in his cross-examination on the

possibility of tampering of the material etc. He was the only

person who could have explained all the questions raised by the

appellants before us.

      More so, Ms. Farhana Shah, learned counsel for the

appellants could not satisfy the court as under what circumstances


                                                               191
                                                              Page 191
none of the appellants could raise this issue before the learned

Designated Court.

       In view of the above, the contention raised does not have

any force. The appeal is dismissed accordingly.



Criminal Appeal Nos. 401 and 595 of 2011

319. These appeals have been preferred by the State against

Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-

74) and Janardhan Pandurang Gambas (A-81), who were acquitted

of the charge of larger conspiracy. The evidence against all the

three respondents had elaborately been dealt with in the connected

appeal filed by them. The learned Designated Court has dealt with

the issue after considering the entire evidence on record and

appreciating the depositions as well as the confessional statements

made by the parties.


320.     We are fully aware of our limitation to interfere with an

order against acquittal. In exceptional cases where there are

compelling circumstances and the judgment under appeal is found

to be perverse, the appellate court can interfere with the order of

acquittal. The appellate court should bear in mind the presumption

of innocence of the accused and further that the trial Court's



                                                               192
                                                              Page 192
acquittal bolsters the presumption of his innocence. Interference in

a routine manner where the other view is possible should be

avoided, unless there are good reasons for interference. (Vide:

State of Rajasthan v. Darshan Singh @ Darshan Lal, AIR 2012

SC 1973).


321. In view of the above, we do not see any cogent reason to

interfere with the order of the Designated Court so far as the

acquittal of the respondents on a particular charge is concerned.

The appeals lack merit and are liable to be dismissed.




                                                                193
                                                               Page 193
           CRIMINAL APPEAL NO. 171 OF 2008


Ashok Narayan Muneshwar                            ...Appellant

                             Versus

State of Maharashtra through STF,CBI              ... Respondent

                             AND

           CRIMINAL APPEAL NO. 172 OF 2008


Arun Pandari Nath Madhukar Mahadik                  ...Appellant

                             Versus

State of Maharashtra through STF, CBI,             ... Respondent



                              AND

            CRIMINAL APPEAL NO. 403 of 2011


State of Maharashtra                                ...Appellant

                             Versus

Ashok Narayan Muneshwar & Ors.                     ... Respondents



Criminal Appeal No. 171 & 172 of 2008

322. These appeals have been preferred against the judgments and

orders dated 26.9.2006 and 21.5.2007, passed by the Special Judge

of the Designated Court under the TADA for the Bombay Blast,




                                                             194
                                                            Page 194
Greater Bombay, in the Bombay Blast Case No. 1/1993, by which

the appellants have been convicted under Section 3(3) TADA.

      They have been acquitted of the first charge of conspiracy,

but have been convicted under Section 3(3) TADA and have been

sentenced to suffer RI of 6 years alongwith a fine of Rs.25,000/-,

and in default of payment of fine, to suffer further RI for six

months. They have already served a sentence of 4 years and 3

months.


323. Facts and circumstances giving rise to these appeals are that:

A.    In addition to the first charge of conspiracy, the appellants

have been charged for intentionally aiding and abetting terrorists,

by allowing them to smuggle and transport arms and ammunition

into India for the purpose of committing terrorist acts, by their

illegal omission to thoroughly check motor lorries carrying arms,

ammunition and other contraband, though the same had been

intercepted by their team on the night of 9.1.1993, at Gondghar

Phata, and for their failure to seize the aforesaid motor truck and its

contents, in lieu of a bribe of Rs. 7 lakhs which had been agreed to

and accepted by them, after negotiations with terrorists and their

associates. Thus, they have been charged under Section 3(3)

TADA.



                                                                  195
                                                                  Page 195
B.    After conclusion of the trial, the learned Designated Court

held the appellants guilty and awarded punishment as referred to

hereinabove.

      Hence, these appeals.


324. Shri P.K. Dey, learned counsel appearing for the appellants,

has submitted that sufficient evidence on record does not exist to

convict the appellants. In their confessional statements, Uttam

Shantaram Potdar (A-30) and Jaywant Keshav Gurav (A-82),

have not made any reference to the smuggling of arms and

ammunition, infact, they have spoken of the smuggling of silver.

Therefore, the question of framing any charge against the present

appellants under TADA, in view of such confessional statements

could not arise.   Moreover, the memorandum annexed to the

confessional statement is a part and parcel of the confession, and

the same has to be filled up simultaneously, and not subsequently.

      So far as the confessional statement of Uttam Shantaram

Potdar (A-30) is concerned, the said memorandum had been sent

subsequently. Thus, the same was in violation of the statutory

provisions of TADA and, the TADA Rules, particularly, as the

same was not in compliance with the requirements of sections

15(3)(b) and 15(5) of the TADA Rules.



                                                               196
                                                               Page 196
      The said confessional statement required a certificate under

Rule 15(4), and such a certificate was not annexed by the officer

recording the confessional statements of Uttam Shantaram Potdar

(A-30), Jaywant Keshav Gurav (A-82) and Salim Kutta (A-134).

The confessional statement of Salim Kutta (A-134) was recorded

on 19.8.1995, and the same was sent to the CMM on 24.8.1995.

Therefore, the same is not valid. It has also been contended that

after the recording of the confession on 19.8.1995 at Ahmedabad,

Salim Kutta (A-134) had been brought to Bombay by the CBI to

the STF office, and that subsequently, he had been taken back to

Ahmedabad on 24.8.1995 and that here, he was produced before

the CMM Ahmedabad.


325. Shri Mukul Gupta, learned senior counsel appearing for the

respondent, has submitted that these two appellants have failed to

perform their duty. They had not checked the boxes, they had only

counted the bricks in the trucks. The previous amount of bribe of

Rs.25,000/-   was enhanced to a sum of Rs.10 lakhs         after a

negotiation of about half an hour. Therefore, the matter is not one

of mere negligence, but of intentional facilitation of the accused

persons in the smuggling of arms and ammunition into the country.




                                                               197
                                                              Page 197
326. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


327. Evidence against the appellants:

(a)   Confessional statement of Uttam Shantaram Potdar (A-30)

(b)   Confessional statements of Dawood Taklya (A-14) and
      Dadabhai (A-17)

(c)   Confessional statement of Jaywant Keshav Gurav (A-82)

(d)   Confessional statement of Salim Kutta (A-134)

(e)   Confessional statement of Mechanic Chacha (A-136)

(f)   Deposition of Dilip Bhiku Pansare (PW-97)

(g)   Deposition of Yeshwant Kadam (PW-109)

(h)   Deposition of Pramod Mudbhatkal (PW-681)

(i)   Deposition of other witnesses



328. Uttam Shantaram Potdar (A-30), Jaywant Keshav Gurav

(A-82), Salim Kutta (A-134) and Mechanic Chacha (A-136) in

their confessional statements, while narrating the incident of the

interception of trucks at Gondghar Phata, have stated the presence

of 5-7 police officials in the party, headed by VK Patil (A-116),

though they have not specifically named the appellants. This police

party further allowed the goods to go past, without proper checking

after negotiating a bribe to the tune of Rs.7 lakhs. As the smugglers


                                                                198
                                                                Page 198
did not have said amount of Rs.7 lakhs with them at the said time,

they had given five silver bricks that had been smuggled in the

landing, to the police as security and subsequently, upon making

them payment of the said amount to the officials, the silver bricks

had been returned to the smugglers.


Confessional statement of Uttam Potdar (A-30):

329. He has stated that on 9.1.1993, at night, after the smuggling

of the goods, they had been intercepted by the Shrivardhan police

near Gondghar Phata. Upon inquiry, Shri Patil (A-116), SI of the

Shrivardhan Police Station, had asked Salim (A-134) why the

money promised to them had not been paid, as regards the earlier

landing. Uttam Potdar (A-30) had told him that he had given the

said money to Ramesh Mali Hawaldar.           SI Patil (A-116) had

seemed very annoyed. Mechanic Chacha (A-136) had then offered

a sum of Rs. 10 lakhs to Hawaldar Ramesh Dattatray Mali (A-101)

and Hawaldar Ashok Narayan Muneshwar (A-70), who were

counting the silver bricks that had been loaded into the truck. There

were 175 bricks in one truck, and in the other, there were about 100

bricks and also some boxes. Upon being asked by the Hawaldar to

reveal the contents of the boxes, Mechanic Chacha (A-136) had

said that the boxes contained watches and that as there was no



                                                                199
                                                                Page 199
cash, Mechanic Chacha (A-136) had taken out five silver bricks

from the first truck and had given them to Pashilkar, policeman.

Thus, Uttam Potdar (A-30) has specifically named the appellant,

(A-70) as a member of the party who had counted the silver bricks.


Confessional statement of Jayawant Keshav Gurav (A-82):

330. In his confessional statement, he has corroborated the

confession of Uttam Potdar (A-30), pointing out that he had also

reached the place where the police had intercepted the two trucks

carrying the smuggled goods, and that at such time, the police Sub-

Inspector Patil had asked Jaywant Keshav Gurav (A-82) what

should be done, and that the police thereafter, upon negotiating for

about half an hour had, released the detained trucks.


331. Dawood Taklya (A-14) and Dadabhai (A-17) in their

confessional statements, have revealed that a sum of Rs.25,000/-

each had been given on two separate occasions to the Shrivardhan

Police Station to seek assistance in the organisation of the landings.


332. Salim Kutta (A-134) and Mechanic Chacha (A-136) have

supported the case of the prosecution, and have corroborated the

confessions of Uttam Shantaram Potdar (A-30) and Jaywant

Keshav Gurav (A-82).



                                                                  200
                                                                 Page 200
Deposition of Dilip Bhiku Pansare (PW-97):

333.   In his deposition, he has revealed that he had participated in

the landing with Uttam Potdar (A-30). He had been driving the

truck carrying the smuggled goods on 9.1.1993 from Dighi Jetty,

and he has corroborated the confessional statement of Uttam Potdar

(A-30) to the extent that Pashilkar (A-110) had taken the key to his

vehicle, and that after checking the contents of their truck, some

police personnel had shouted out that the same was silver.

Mechanic Chacha (A-136) had also come there and he had

negotiated with Vijay Krishanji Patil (A-116) who had also been

present at that time. Uttam Potdar (A-30), Jayant Keshav Gurav

(A-82) from Customs and Mechanic Chacha (A-136) etc. had

talked to the police for about half an hour, and as the smuggling

party did not have cash with them, five silver bricks had been given

as security to them. The police had searched the first truck for a

long time, while they had taken only 10 minutes to check the

second one.


334. The appellant (A-70) had produced a sum of Rs.30,000/- on

24.4.1993 in presence of two witnesses, namely, Yeshwant Kadam

(PW-109) and Vinod Chavan (PW-590), who had been brought by




                                                                 201
                                                                Page 201
his father-in-law, and in this respect, a panchnama (Ext. 565) was

prepared.

      As regards the same, Yeshwant Kadam (PW-109) has

deposed that he had been unable to identify the accused who had

produced the said cash, which had been seized under the

panchnama (Exh. 565) in court.


335. The appellant's (A-99) house had been searched in the

presence of the panch witnesses Yeshwant Kadam (PW-109) and

Chandrashekhar (PW-622), who were police-men, and from the

said house, a sum of Rs.59,200/- had been recovered. In this

respect, a panchnama was prepared in the presence of the

aforementioned two panch witnesses.


336. Sujjat Peoplankar (PW-158), Bhaskar Boda (PW-159),

Gopichand Sathnag (PW-160), Tukaram Kalankar (PW-161),

Ganpat Giri (PW-162), Anant Lad (PW-166) and Dhiryasheel

Koltharkar (PW-167) have deposed, that both the appellants (A-

70 and A-99) had not come to their village on patrolling duty.

These witnesses were produced by the prosecution to disprove the

version of the defence's alibi, to the extent that they had not been

present in the police party which had intercepted the smuggled

goods, rather, they had been on patrolling duty. The present


                                                                202
                                                               Page 202
appellants (A-70 and A-99) may be correct in contending that

simply because these witnesses had not seen the appellants in their

village, the same cannot be taken to mean that the appellants had

not been on patrolling duty.


Deposition of Pramod Mudbhatkal (PW-681):

337. He was an officer of the CBI who had been associated with

the investigation of the Bombay Blast. He has deposed that

Omprakash Chhatwal (PW-684) had been a member of the team

investigating the Bombay Blast. Pramod Mudbhatkal (PW-681)

had arrested Mechanic Chacha (A-136) under the supervision of

Omprakash Chhatwal (PW-684), and that he (PW-684), had

recorded the confessional statement of Mechanic Chacha (A-136)

and that Pramod Madbhatkal (PW-681) had requested him (PW-

684) to record his confessional statement and that he had chosen

him because he (PW-684) was conversant with the matter.


338. After appreciating the evidence on record, the learned

Designated Court came to the conclusion that the police party of

Shrivardhan had intercepted the convoy carrying said contraband

near Gondghar Phata. The entry in the log book of the police jeep

has revealed that the same had been driven by the appellant (A-99),

and this has not been disputed by the appellant (A-99). Hence, it is


                                                                203
                                                               Page 203
clear that appellant (A-99) had been driving the said police jeep

when the party was headed by Vijay Krishnaji Patil (A-116).

Furthermore, it has been held that the confessions of the co-

accused and of Dilip Bhiku Pansare (PW-97) clearly reveal the

involvement of the appellants in the landing episode.

        It has also been held that the appellants had infact been

members of the police party headed by their superior Vijay

Krishnaji Patil (A-116), and that though the appellants cannot be

held to be responsible for taking the decision to permit the further

transportation of said goods, however, taking into account the fact

that they had not reported Vijay Krishnaji Patil's (A-116)

behaviour to higher officials, and further, the recovery of a large

amount of money from them, clearly reveals that they had also

connived with Vijay Krishnaji Patil (A-116) to commit the said

acts. Thus, they are liable under section 3(3) TADA. However, as

Vijay Krishnaji Patil (A-116), was primarily responsible for the

decision taken by the police party and also for the handling of the

negotiations, the appellants cannot be held guilty for commission

of the offence of conspiracy, as they were acting in accordance

with the instructions and directions of Vijay Krishnaji Patil (A-

116).




                                                                204
                                                               Page 204
339.   We find no cogent reason to interfere with the decision of

the learned Designated Court. The appeals lack merit and are

accordingly dismissed.


Criminal Appeal No. 403 of 2011

340. This appeal has been preferred against the respondents only

on the limited issue that the respondents have been acquitted by the

Special Judge of the Designated Court under the TADA for the

charge of conspiracy.


341. Shri Mukul Gupta, learned senior counsel appearing for the

appellant-State has submitted that these respondents were police

constables who had been posted at the relevant time at the

Shrivardhan Police Station. They had intercepted the contraband

(arms, ammunition and explosives etc.) at Gondghar Phata. They

had checked the two trucks carrying the said contraband for about

15 and 10 minutes respectively, and that despite the fact that the

arms had been packed differently as compared to the silver, they

had omitted to inspect the said goods properly. Moreover, the fact

that that they had asked for enhancement of the amount of bribe to

be paid to the police for each landing, indicates that they were

aware of the contents of the contraband (arms, ammunition and

explosives) as well, which gave them this bargaining power.


                                                                205
                                                               Page 205
Furthermore, the Customs Inspector had issued a warning to all

authorities, stating that he had definite information that arms and

ammunition would be brought in by sea, owing to which they

should remain alert and ensure proper checking. Therefore, they

ought to have been convicted for the charge of conspiracy as well.


342. On the contrary, Shri P.K. Dey, learned counsel appearing

for the respondents, has submitted that since the respondents had

been subordinate to the actual recipients of the bribes, which had

been taken    to facilitate the landing of the contraband, they

themselves had been        unaware of the fact that arms and

ammunition could have been brought into the country once the

vehicles had been checked. They may have been negligent in the

performance of their duties, but by no stretch of the imagination,

can it be held that they had also conspired in the execution of the

transaction. They have been convicted under Section 3(3) TADA

and their appeals have been heard alongwith this appeal. Hence, no

further consideration is required, particularly keeping in mind the

parameters that have been laid down by this court for interference

against an order of acquittal. Therefore, this appeal is liable to be

dismissed.




                                                                206
                                                                Page 206
343. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


344. After appreciating the entire evidence, the learned Special

Judge reached a conclusion that though these respondents-

constables may have been negligent in the performance of their

duties, they cannot be held to be parties to the conspiracy. The

learned Special Judge has taken a view that as their presence had

been established at the place of interception, a case under Section

3(3) TADA can be established as a result of the cumulative effect

of the said evidence. However, in view of the fact that there is

nothing on record to show their involvement in the conspiracy, or

of them having committed any overt acts in the execution of such

conspiracy, the question of convicting them for conspiracy does

not arise. As their acts do not transcend beyond their presence and

their negligence in the interception and checking of the vehicles,

they are entitled to the benefit of doubt as far as the conspiracy is

concerned. All the constables were of inferior ranks, and were

acting under the instructions of the officers who had been present

at the spot. Despite the fact that all the four respondents had been

members of the police party, and were hence responsible for

allowing the further transportation of the smuggled contraband



                                                                207
                                                                Page 207
goods, there appears to exist some distinction between the cases of

the said accused, and of Vijay Krishnaji Patil (A-116), the head of

the police party, without whose consent and connivance the said

goods could not have been permitted to be transported any further.

Therefore, in his presence, the respondents-constables cannot be

held as responsible for taking the decision to permit the further

transportation of the said goods. Thus, they are liable only for the

offences punishable under Section 3(3) TADA.


345. We are fully aware of our limitation to interfere with an

order against acquittal. In exceptional cases where there are

compelling circumstances and the judgment under appeal is found

to be perverse, the appellate court can interfere with the order of

acquittal. The appellate court should bear in mind the presumption

of innocence of the accused and further that the trial Court's

acquittal bolsters the presumption of his innocence. Interference in

a routine manner where the other view is possible should be

avoided, unless there are good reasons for interference. (Vide:

State of Rajasthan v. Darshan Singh @ Darshan Lal, AIR 2012

SC 1973).




                                                                208
                                                               Page 208
346. We have given our conscious thought to the said reasoning

that has been given by the learned Designated Court, and we are of

the view that the same does not require any interference. The

appeal lacks merit and is dismissed accordingly.




                                                              209
                                                             Page 209
           CRIMINAL APPEAL NO. 1630 OF 2007


Liyakat Ali Habib Khan                                ...Appellant

                              Versus

State of Maharashtra                                ... Respondent

                         AND

          CRIMINAL APPEAL NO. 1029 OF 2012


State of Maharashtra                                  ...Appellant

                              Versus

Liyakat Ali Habib Khan                                ... Respondent


Criminal Appeal No. 1630 of 2007

347. This appeal has been preferred against the judgment and

order dated 30.5.2007 passed by Special Judge of the Designated

Court under the TADA for Bombay Blast, Greater Bombay, in

Bombay Blast Case No. 1/1993, convicting the appellant under

Section 3(3) TADA, and awarding the punishment of 5 years RI

with a fine of Rs.25,000/- and in default of payment of fine, to

further suffer 6 months RI. He was further convicted under Section

5 read with Section 6 of Explosive Substances Act, 1908 and

awarded the punishment of 4 years RI alongwith a fine of

Rs.10,000/-, and in default of payment of fine, to suffer further RI


                                                                210
                                                               Page 210
of two months.       Both the sentences were directed to run

concurrently.


348. Facts and circumstances giving rise to this appeal are that :

A.    In addition to the main charge of conspiracy, the appellant

(A-85) was charged under Section 3(3) TADA, for facilitating the

commission of terrorist acts by allowing Mushtaq @ Tiger Abdul

Razak Memon, Yakoob Khan @ Yeda Yakoob Wali Mohmed

Khan and their associates to store 80 cartons of RDX explosives in

his godown at M.I.D.C. Thane Belapur, which had been smuggled

into India for committing terrorist acts.    The appellant is also

charged for aiding and abetting in carrying and transportation of

RDX explosives from his godown. He was further charged under

Section 5 TADA for possessing the said explosives unauthorisedly

in Greater Bombay, Thane district. He was also charged under

Section 6 TADA for contravening the provisions of the Explosives

Act, 1884; Explosives Substances       Act, 1908; and Explosives

Rules 1983, by keeping in his godown the said 80 cartons of RDX

explosives. Lastly, he had been charged under Section 4 read with

Section 6 of the Explosives Substances Act, 1908 for having

possession of the 80 cartons of RDX explosives stored in his

godown.



                                                                211
                                                                Page 211
B.    After the conclusion of the trial and appreciating the

evidence, the appellant was acquitted of some of the above-

mentioned charges. However, he was convicted under Sections

3(3) and 6 TADA as referred to hereinabove.

      Hence, this appeal.


349. Shri Mushtaq Ahmad, learned counsel appearing for the

appellant has submitted that the appellant could not have been

convicted under the provisions of TADA at all for the reason that

the godown wherein the alleged explosives had been stored did not

belong to him. He was neither the owner of the godown, nor did he

have any control over it. It belonged to his father who knew the

other co-accused and it was on the instructions of his father that the

appellant accompanied them at the time of storing. More so, the

appellant was not informed at any stage about the contents of the

cartons and did not become aware of the same until the end.

Therefore, the conviction is liable to be set aside.


350. Per contra, Shri Mukul Gupta, learned senior counsel

appearing for the respondent has vehemently opposed the appeal

submitting that the appellant was aware of the contents of the

cartons. While initially he may not have known, he was informed

by the co-accused Suleman, while returning from the godown that


                                                                 212
                                                                 Page 212
the cartons contained explosives.            Thus, the facts and

circumstances of the case do not warrant any interference by this

court and, therefore, the appeal is liable to be dismissed.


351. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


352. Evidence against the appellant:

(a)   Confessional statement of the appellant Liyakat Ali Habib

      Khan (A-85)

(b)   Confessional statement of Murad Ibrahim Khan (A-130)

(c)   Confessional statement of Suleman Mohd. Kasam Ghavate (A-18)


353. Confessional statement of the appellant Liyakat Ali
     Habib Khan (A-85):


      At the time of incident the appellant was 34 years of age and

he had voluntarily made the confession disclosing that his father

had taken the godown at M.I.D.C., Thane, Belapur Road, in which

construction took place and appellant had been working therein. He

was closely acquainted with the other co-accused and Yakoob

Khan (AA), his uncle, had come alongwith other co-accused Tiger

Memon and Nisar to his father in the second week of February,

1993, and requested him to allow them to keep some goods for few



                                                               213
                                                              Page 213
months in the godown at Thane. They were permitted by his father

to store the goods. They had gone there but could not open the lock

of the godown. Therefore, they called the appellant at midnight

and subsequently came to his house in a jeep and took him (A-85)

with them. He also met Javed Chikna, Anwar Izaz and other co-

accused on the way. He was directed by his uncle to keep watch for

a tempo which was bringing certain goods. He waited for a while

but the tempo did not arrive. So he went inside the factory and

slept there. Thereafter, Tiger Memon (AA) alongwith Nisar came

to the factory in the jeep of Tiger Memon (AA) and tried to open

the lock. As they could not open the lock they had to break it with

an axe. However, subsequently they came to know that it was not

the correct godown. Thus, Tiger Memon called at his (A-85)

residence and asked the correct number of his factory.

Subsequently, they went to the correct factory and opened the

same. They took the tempo which had the goods inside the factory

and unloaded the same. It contained 80 packets in gunny bags each

packet weighed about 30/35 Kg. Tiger Memon paid him Rs.600/-

out of which he had paid Rs.200/- to Nisar. Then the appellant

washed the jeep alongwith Nisar and Suleman and left for Bombay.

On the way, Suleman told him that the goods which were kept in

the factory were explosives.


                                                               214
                                                              Page 214
      In the beginning of March 1993, Tiger Memon came and

took 6 packets in his car and 6 more packets were later taken by the

appellant from the factory and delivered to him. They had put the

material in a car and left it in the parking of Rahat Manzil. On the

next morning, when he reached there, he could not find the car at

that place. Two-three days before 17.2.1993 Tiger Memon (AA)

and his companions transferred the remaining explosives from the

factory to some other place. He came to know that in fact the

explosives had been shifted from his godown prior to 12.3.1993.

      In this case, his brother Iliyas was aware that the goods

concealed in their godown were explosives and just after the

Bombay Blast on 12.3.1993 Iliyas had driven Yakoob Khan to

airport on 17.3.1993.


354. Retraction:

      He (A-85) retracted his confession after moving an

application on 8.12.1993 stating that he came to know only after

the charge sheet had been filed on 30.11.1993 that he had made a

confession and in fact no confession had ever been made by him.

He was forced to sign a readymade prepared statement which was

never even read over to him and he signed the same because he

had been in illegal custody of the police since 20.3.1993.



                                                                215
                                                               Page 215
355. Confessional statement of Murad Ibrahim Khan (A-130):

      He made the confessional statement on 3.4.1995 wherein he

has given the complete depiction of involvement of the appellant.

He (A-130) stated that after returning from Dubai, he started

working with Majid Bhai whose nephew Liyakat (A-85)

introduced him to Tiger Memon (AA). Later, he (A-130) found

out that Tiger Memon was a smuggler. Liyakat was told to meet

Tiger Memon at a petrol pump in Mumbra where he (A-130)

accompanied him. When Tiger Memon (AA) reached there, he

spoke to Liyakat about something and he (A-130) was told to wait

at the petrol pump for sometime, while Liyakat (A-85) and Tiger

Memon (AA) went to the factory. They returned having some

packets which were kept by Liyakat (A-85) in Tiger Memon's car.

Tiger Memon left with the items and Liyakat (A-85) again went

towards the factory asking him (A-130) to wait for Majid Bhai at

the petrol pump. Once Liyakat (A-85) returned from the factory,

he, Majid and Murad (A-130) went to their residence.




                                                             216
                                                             Page 216
356. Confessional statement         of   Suleman    Mohd.
     Kasam Ghavate (A-18):

      In the confessional statement of Suleman, the same has

deposed that Liyakat A-85 was involved in the case and he went on

to identify him.


357. In his statement under Section 313 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as the Cr.P.C.) in reply to

Question Nos. 280, 284 and 308, the appellant (A-85) replied that

he had made a confessional statement; the confessional statement

did not contain his signature. He was in the lock up of Matunga

Police Station, and was forced to sign on the said papers because

he was told by the police that if he did not comply they would

harass and torture him. He was frightened, disturbed and therefore,

succumbed to the said demand. He was not aware of what was

falsely forwarded to C.M.M. He was innocent. He had not

committed any offence. The police had falsely implicated him in

the case. The bomb blast was the outcome of the desire of the God.


358. After considering the evidence on record, the Designated

Court recorded the finding as under:

      (i)   That initially A-85 himself was not aware
      regarding the material which was stored in the said
      godown.



                                                                217
                                                               Page 217
(ii) After being shown the relevant material he had
become aware of the nature of contraband material.
(iii) Still he did not take any steps regarding the
same i.e. informing to the police, etc.
(iv) His said acts would definitely amount of having
committed the offence under section 3(3) TADA
having regard to wide definition of abetment given
under TADA.
(v) His confession revealed that the material kept in
his godown was ultimately taken away by Tiger
Memon later on also denotes that though the
material was in the godown of A-85 or his father
still all the time possession of the same had
remained with Tiger Memon. In view of the same
A-85 could not be held guilty for commission of
offence under Section 5 TADA for which he is
charged with.
(vi) The same was the case regarding commission of
offence under Section 6 TADA for which he is
charged with.
(vii) However, he himself still having allowed to
continue the said material in his godown till the
same was taken away by Tiger Memon, would make
him liable for commission of offence under Section
5 read with Section 6 of Explosive Substances Act.
(viii) A-85 was found guilty mainly due to few
incidental acts committed by him in connection with
contraband goods smuggled during Shekhadi
landings.
(ix) The evidence surfaced and/or reasoning given
thereon revealed that A-85 was closely related to
absconding accused Yeda Yakoob and deceased
accused Majid Khan i.e. nephew of said persons.
The role played by him was confined to himself
having provided and helped Tiger Memon for
storing contraband goods i.e. RDX material in the
godown of his father at Mumbra.
(x) He had not committed any act either with
landing or with any of other operations effected in
pursuance of conspiracy. Needless to add that
evidence having denoted that the material stored at
the godown being later on taken away by Tiger
Memon, A-85 cannot be also said to have in


                                                        218
                                                        Page 218
      possession of such contraband material. However, to
      the limited extent A-85 had committed offence
      under Section 3(3) TADA.


359. Much has been argued by Shri Mushtaq Ahmad, learned

counsel appearing for the appellant that whatever may be the

factual and legal position in the case, the appellant is a mentally

challenged person and there is sufficient material on record to

show the same. He has been suffering from the delusion and

hallucination and had been treated in various hospitals. While

dealing with the remand application vide order dated 8.12.1993,

the learned Magistrate made the endorsement to the effect that

"appellant was suffering from mental illness". Even the order dated

19.10.1995 passed by the learned Designated Court takes note of

his mental illness stating that he was not in good mental condition

and his health has deteriorated.

      The appeal is accordingly dismissed.

      The appellant has already served 3 years and 4 months.

However, we find no cogent reason to interfere with the

conclusion of the Designated Court.


Criminal Appeal No. 1029 of 2012

360. The respondent herein stood acquitted of the charge of

conspiracy. Hence, the State has preferred this appeal.


                                                               219
                                                               Page 219
361. Shri Mukul Gupta, learned senior counsel appearing on

behalf of the appellant, has submitted that in spite of the fact that

there was clear cut evidence against the respondent of his

involvement in the conspiracy, he has wrongly been acquitted by

the Designated Court. He is a nephew of Yakoob Yeda (AA), who

had been a close associate of Tiger Memon (AA) and had not only

permitted to use his godown for storing the arms, ammunition and

explosives but had also accompanied them when such goods were

shifted from there. Thus, the appeal deserves to be allowed.


362. Per contra, Shri Mushtaq Ahmad, learned counsel appearing

on behalf of the respondent, has submitted that the respondent

could not have been convicted under the provisions of TADA at all

for the reason that the godown where the arms, ammunition and

explosives had been stored, did not belong to the respondent. He

was neither the owner of the godown nor did he have any control

over it. It belongs to his father who had never been an accused.

The respondent had been harassed merely being the nephew of

Yakoob Yeda (AA) and he had been convicted for other charges

and, hence, no interference is called for.




                                                                220
                                                                Page 220
363. Heard learned counsel for the parties and perused the record.

Confessional statements of A-18, A-85 and A-130 have already

been referred to and appreciated in the connected appeal.


364. The Designated Court has dealt with the issue elaborately

and recorded the findings as under:

      "Thus, considering material in the confession of A-
      85 and aforesaid co-accused the same leads to the
      conclusion of A-85 though was not involved in
      Shekhadi landing operation he was involved in
      allowing his place i.e. godown of his father for
      storing explosive substances in large quantities.
            However, considering the manner in which A-
      85 had figured in commission of the relevant acts it
      will be difficult to come to the conclusion that he
      was involved in the conspiracy for which the charge
      at head 1st ly is framed or even otherwise. Hence,
      he will be required to be held not guilty of the said
      offence due to not only paucity of evidence for the
      same but his involvement being not even spelt for
      the same."


365. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


366. In view thereof, we do not find any cogent reason to

interfere with the judgment of the Designated Court. The appeal is,

accordingly, dismissed.




                                                               221
                                                              Page 221
            CRIMINAL APPEAL NO. 207 OF 2008


Mujib Sharif Parkar                                       ...Appellant

                              Versus

State of Maharashtra                               ... Respondent


                                  AND



            CRIMINAL APPEAL NO. 415 OF 2011


State of Maharashtra thr.C.B.I.                        ...Appellant

                              Versus

Mujib Sharif Parkar                                   ... Respondent


Criminal Appeal No. 207 of 2008

367. This appeal has been preferred against the impugned

judgment and order dated 24.5.2007 passed by the Special Judge

of the Designated Court under the TADA in Bombay Blast Case

No. 1/1993, by which the appellant has been convicted under

Sections 3(3) TADA and sentenced to 5 years rigorous

imprisonment with a fine of Rs. 25,000/-, and in default to undergo

further RI for six months.


368. Facts and circumstances giving rise to this appeal are that :


                                                                222
                                                                Page 222
A.    In addition to the main charge of conspiracy, the appellant

was charged in connection with the purchase of gunny bags for

transportation of contraband landed at Shekhadi, for commission of

the offence under Section 3(3) TADA during the period between

December 1992 and March 1993. Thereby, having abetted

knowingly and intentionally facilitated the commission of terrorist

act and preparatory acts thereof. The facilitation and transportation

of the contraband, arms and ammunition landed at Shekhadi

between 8th/9th of February, 1993, which had been smuggled to

India by Tiger Memon (AA) and his associates.

B.    The appellant was convicted and sentenced as referred to

hereinabove.

      Hence, this appeal.


369. Ms. Farhana Shah, learned counsel for the appellant

emphasised the fact that the identity of the appellant could not be

discerned and this should create doubt in the mind of the court.

Thus, the appellant was entitled for benefits of doubt. The appeal

deserves to be allowed.


370. Shri Mukul Gupta, learned senior counsel for the state has

submitted that the appellant purchased empty gunny bags which

were later used to transport the contraband items in the territory of


                                                                223
                                                                Page 223
India. Therefore, the appellant was involved with Tiger Memon

(AA). Thus, the appeal is liable to be dismissed.


371. We have heard learned counsel for the parties and perused

the record.


372. Evidence against the appellant (A-131):

(a) Confessional statement of Sayyad Abdul Rehman Shaikh (A-
    28)

(b) Deposition of Usman Jan Khan (PW.2)

(c) Deposition of Dileep Madhavji Katarmal (PW.284)

(d) Deposition of Jalil Sharif Kirkire (PW.285)

(e) Deposition of Ananth Shankar Rane (PW.286)



373.   Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)

His confessional statement was recorded by Shri Sanjay Pandey,

Deputy Commissioner of Police, on 23.4.1993. In his statement,

he gave full details of smuggling, landing and his participation in

smuggling activities even in February, 1993 with Tiger Memon

(AA). He (A-28) revealed that it was 3 a.m., when Mujib (A-131)

came to Mhasla where the witness was sleeping. Mujib (A-131)

said that they have to go to said shop. On that very same night at

about 3 O'clock, he (A-28) and the appellant (A-131) left for said



                                                               224
                                                              Page 224
shop by Yellow Mitsubishi and reached there at about 6 O'clock

and from there they bought 1500 sacks from one Gujarati. From

there on 10.3.1993 around 12-12.30 p.m., they went to Visawa

hotel.   After about one and half hours, Tiger Memon (AA)

alongwith Yeda Yakub came there. Tiger Memon (AA) brought

the appellant (A-131) with him to a hotel on Mahad Road. One

white Mitsubishi was parked there. Tiger Memon said that many

people were present there, so goods could not be shifted in another

vehicle and thus, he asked them to go to Mahsla. In Mhasla after

unloading the goods from white Mitsubishi, the rolls of sacks and

goods were uploaded half-half in both the vehicles. Mujib (A-

131) got down there itself.


374. Statement of Usman Jan Khan (PW.2) ­ Approver ­ who

was a co-accused in the instant case.   His confessional statement

was recorded in which he did not name the appellant (A-131) and

did not involve the appellant in any overt act. However, he turned

as an approver and he was examined as PW.2 wherein he deposed

that he knew the notorious persons like Nasir Dakhla (A-64),

Manoj Kumar @ Munna Bhavarlal Gupta as Munna (A-24), Riyaz

Abu Bakar Khatri, Mujib Sharif Parkar as Dadabhai's son (A-131)

etc. He identified the appellant (A-131) in the court. While giving



                                                               225
                                                              Page 225
the details of landing at Shekhadi, he deposed that the witness

participated in the landing and it took place at about 11 p.m., one

boat came to the coast and contacted the party waiting for

smuggled goods. Tiger Memon (AA) alongwith witness and 5-6

persons, namely, Yeda Yakub, Javed, Anwar, Shahid, Munna sat in

the boat and went towards high sea for half an hour. The boat

reached near the speed boat. Tiger Memon (AA) went over to the

speed boat and after five minutes he passed over seven bags of

military colour from the speed boat to them and came back to the

boat.   Then they left for the coast with the seven bags and on

reaching the coast, Tiger Memon (AA) went to a hut on the coast

with the seven bags. In the hut, Dadabhai (A-17), Dawood Taklya

(A-14) and Dadabhai's son (A-131) were present. Tiger Memon

opened the seven bags with the help of these persons. The bags

were containing AK-56 rifles, handgranades and pistols.        The

witness was given a pistol. Tiger Memon (AA) told them that

within a short time goods like arms and Kala Sabun would be

brought from the sea. Tiger Memon instructed them to attack any

person who was an outsider and comes towards them. The goods

came in boats. Villagers unloaded the goods from the boat and

reloaded in a truck which was standing there. The villagers were

persons of Dawood Taklya (A-14) and Dadabhai Parkar (A-17).


                                                               226
                                                              Page 226
After the goods were unloaded and reloaded in the truck, the

villagers left the place.   Then they proceeded towards Wangni

Tower and reached there in about one and half hours. It was

located in a lonely and deserted place. Tiger Memon got the goods

unloaded from the truck and goods were kept in a room in Wangni

Tower. On the instruction of Tiger Memon (AA), the packages

were opened and seen to contain AK-56 rifles, handgranades,

pistols, cartridges, magazines of AK-56 rifles and wires.      The

witness (PW.2) enquired from Javed about the wires and Kala

Sabun. Tiger Memon (AA) told him that Kala Sabun was an

explosive and the wires were detonators. Tiger then instructed

them to put the rifles and other items in the cavities of the jeeps

and in the tempo. The bags in which these items were brought

were burnt by Dawood Taklya (A-14), Dadabhai Parkar (A-17)

and his son (A-131) in the backyard on the instructions of Tiger

Memon (AA). Tiger Memon (AA) instructed Dawood Taklya (A-

14) to conceal the boxes of Kala Sabun.


375. Deposition of Dileep Madhavji Katarmal (PW.284) - He

was serving as a Manager in the firm which was carrying on the

business of gunny bags etc. He gave description about two persons

one old and one young who had come to his agency/shop for



                                                               227
                                                              Page 227
purchasing the sacks in the first part of February 1993, and they

purchased the sacks vide bill Nos. 635 and 636 on 4.2.1993 and bill

Nos. 650 and 651 on 10.2.1993 in the name of Dhanaji Sakharam

Pawar.   The witness produced the counterfoil of the said bills

which were marked Exhibits 1139 and 1146. The said bills were in

his handwriting and contained his signatures.


376. Deposition of Jalil Sharif Kirkire (PW.285) - He was the

driver of the vehicle in which the sacks had been taken.        He

deposed that he had shifted the gunny bags and was paid a sum of

Rs.475/- towards the hire charges. However, he did not identify

any of the accused.


377. Deposition of Ananth Shankar Rane (PW.286) - He was

an official of CBI and his deposition is only to the extent that he

searched for Dhanaji Sakharam Pawar in whose name the bills had

been issued for purchasing the gunny sacks but in vain.


378. The learned Special Judge appreciated the entire evidence

particularly that of the confessional statement of Sayyed Abdul

Rehman Kamruddin Sayed (A-28), depositions of               Dileep

Madhavji Katarmal (PW-284) and Jalil Sharif Kirkire (PW-285)

and other witnesses and reached the conclusion that the respondent



                                                               228
                                                              Page 228
(A-131) was involved in landing and was present in arms training

at Sandheri and was also involved in purchase of gunny bags.

However, Sayyed Abdul Rehman Kamruddin Sayed (A-28) did not

disclose the full name of accused (A-131), rather referred to as

Muzib.


379. From the aforesaid evidence, it is evident that the appellant

(A-131) was the son of Dadabhai (A-17) who was a close associate

of Tiger Memon (AA) and indulged in smuggling activities and

participated and facilitated in the landing and transportation of

contraband. The appellant (A-131) had participated in purchasing

the gunny bags as well as in transportation and had been fully

aware of the contents therein as is evident from the deposition of

Usman (PW.2). The appellant (A-131) knew that the gunny bags

contained AK-56 rifles, handgranades, arms etc. The appellant (A-

131) purchased the gunny bags in the fake name of non-existing

person twice. If all the evidence against him is read conjontly, the

inference may be that the gunny bags were used to carry the arms

which were smuggled to India and transported to Bombay.


380. In view of the above, conviction of the appellant under

Section 3(3) TADA is justified. The appeal lacks merit and is

accordingly dismissed.


                                                                229
                                                               Page 229
Criminal Appeal NO. 415 of 2011

381. This appeal has been preferred against the same impugned

judgment and order dated 2.8.2007 passed by the Designated Court

by which the respondent has been convicted under Section 3(3)

TADA and awarded rigorous imprisonment for 5 years with a fine

of Rs. 25,000/- and in default of payment of fine, to suffer further

RI for 6 months. However, he has been acquitted of the general

charge of conspiracy. Hence, this appeal by the State.


382. Shri Mukul Gupta, learned senior counsel appearing for the

appellant has submitted that in addition to the general charge of

conspiracy, the respondent (A-131) had been convicted for

assisting the Tiger Memon (AA) and his associates in smuggling of

arms, ammunition, handgrenades and explosives like RDX in India

at Shekhadi, Dist. Raigarh and by purchasing empty gunny bags in

the name of fictitious firms. Therefore, he has wrongly been

acquitted of the charge of conspiracy.


383. Ms. Farhana Shah, learned counsel appearing for the

respondent (A-131) has submitted that the basic evidence against

the respondent (A-131) was the evidence of Usman (PW.2) who

had been an accused and turned to be an approver and he did not

refer to the respondent (A-131) in his confessional statement. More


                                                                230
                                                               Page 230
so, his evidence has not been corroborated by any other person. He

had been involved in the case merely being the son of a landing

agent of Tiger Memon (AA).          The evidentiary value of the

approver requires corroboration. Therefore, the appeal lacks merit

and is liable to be dismissed.


384. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

      The entire evidence against the respondent (A-131) has been

referred to and as appreciated in the connected appeal no.207 of

2008, hence, for brevity sake does not require to be referred to

herein.


385. So far as the charge of conspiracy is concerned, as accused

A-131 had not transcended beyond the aforesaid acts having

assisted and abetted Shekhadi landing and transportation operation

and there was no other overt act and it was difficult to hold that he

was involved in conspiracy. There was nothing to show that he

committed any act furthering the object of conspiracy, beyond

rendering assistance to the operation organized by his father

alongwith other partners. The same made it extremely difficult to

attribute knowledge of object of conspiracy to A-131. Therefore,




                                                                 231
                                                                Page 231
he was given the benefit of doubt regarding the said charge and

was held not guilty of conspiracy.


386. In view of the above, as the identity of accused (A-131) had

not been fully disclosed by some of the accused and witnesses and

even Usman (PW.2) who had involved respondent (A-131) in

many activities   did not mention his name in the confessional

statement given by him. He (PW.2) further clarified in cross

examination that he could not give any reason for not mentioning

the name of the accused (A-131) in his confessional statement.

Therefore, the respondent becomes entitled to the benefit of doubt.


387. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


388. More so, the evidence of Usman (PW.2) requires

corroboration in view of the law laid down by this Court in Mrinal

Das & Ors. v. State of Tripura, (2011) 9 SCC 479.


      In view of the above, we reach the inescapable conclusion

that the appeal lacks merit. Thus, it is accordingly dismissed.




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            CRIMINAL APPEAL NO. 2173 of 2010

Mohammed Sultan Sayyed                               .....Appellant

                               Versus

State of Maharashtra thr.CBI                        ... Respondent


389. This appeal has been preferred against the judgment and

order dated 2.8.2007 passed by the Designated Court under the

TADA for the Bombay Blast Cases, Greater Bombay, in Bombay

Blast Case No. 1/1993, by which the appellant has been convicted

under Section 3(3) TADA.


390. Facts and circumstances giving rise to this appeal are that:

A.    In addition to the main charge of conspiracy, the appellant

(A-90) was charged for knowingly facilitating the commission of

terrorist acts i.e. the bomb blast on 12.3.1993, and intentionally

aiding and abetting Dawood Ibrahim Kaskar, Mohmed Dossa and

Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and their

associates by attending the meeting that was held at Hotel Persian

Darbar on 6.1.1993 alongwith other co-accused Ranjit Kumar

Singh (A-102), Baleshwar Prasad and Customs Superintendent

Yashwant Balu Lotle (PW.154), wherein the said Customs agents

agreed to allow Mohd. Dossa and his associates to carry out their

smuggling activities upon the payment of a sum of over


                                                                233
                                                               Page 233
Rs.7,80,000/- per landing; in furtherance of which, Mohd. Dossa

and his associates smuggled into Bombay, arms and ammunition

for the commission of terrorist acts at Dighi on 9.1.1993. The

appellant (A-90) and the other co-accused, facilitated the

smuggling and transportation of arms, ammunition and explosives

by their non-interference in lieu of the payment of bribe amounts,

in spite of the fact that they had specific information and

knowledge of the fact that arms, ammunition and explosives were

to be smuggled into India by terrorists, and that as customs officers

were legally bound to prevent the same. Charges were framed

under Section 3(3) TADA.

B.    After the conclusion of the trial, the learned Designated

Court found the appellant (A-90), guilty of charge under Section

3(3) TADA, and imposed upon him, a punishment of 7 years

alongwith a fine of Rs. 1 lakh, and in default of payment of fine, to

suffer further RI for 3 years. A cash amount of Rs.1,35,000/- from

muddernal Art. No. 343 (B), 343(C) and 343(D) which was

recovered from his house, has also been forfeited. However, he

was not found guilty of any other offences.

      Hence, this appeal.




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391. Shri Mushtaq Ahmad, learned counsel appearing on behalf

of the appellant (A-90), has submitted that there is no legal

evidence on the basis of which the conviction of the appellant (A-

90), can be sustained.        It was further submitted that his

confessional statement has never been recorded, and that he had

never been presented before the officer who is purported to have

recorded his confessional statement, on the contrary, such

recording was done by resorting to 3 rd degree methods, and that he

was forced to sign the papers upon which his purported

confessional statement was recorded. All the other evidence is not

worthy of acceptance, as he had mostly met the other main accused

only upon the instructions of R.K. Singh, Assistant Collector of

Customs (A-102). Thus, the conviction is liable to be set aside,

and the present appeal deserves to be allowed.


392. Shri Mukul Gupta, learned senior counsel appearing for the

State, has vehemently opposed the appeal and submitted that the

appellant (A-90) had made an admissible confessional statement,

and that no 3rd degree methods were used to obtain the same. Thus,

the appeal deserves to be dismissed.


393. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


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                                                              Page 235
394. Evidence against the appellant (A-90):

(a)    Confessional statement of the appellant (A-90)
(b)    Confessional statement of Dawood @ Dawood Taklya
       Mohammed Phanse @ Phanasmiyan (A-14)

(c)    Confessional statement of Uttam Shantaram Potdar (A-30)
(d)    Confessional statement of Mohmed Salim Mira Moiddin
       Shaikh @ Salim Kutta (A-134)

(e)    Confessional statement of Mohmed Kasam Lajpuria @
       Mechanic Chacha (A-136)

(f)    Confessional statement of Sharif Abdul Gafoor Parkar @
       Dadabhai (A-17)

(g)    Deposition of Sitaram Maruti Padwal (PW-146)
(h)    Deposition of Madhukar Krishna Dhandure (PW-153)
(i)    Deposition of Yashwant Balu Lotale (PW-154)
(j)    Deposition of Shivkumar Ramanand Bhardwaj (PW-470)



395.    Confessional Statement of the appellant (A-90):

       His own confessional statement was recorded on 29.4.1993

(First Part) and 30.4.1993 (Second Part) by Shri C. Prabhakar,

Superintendent of Police, Thane Rural Camp, Alibag (Raigad)

(PW.186).    In his confession, he has stated that he had been

working as the Superintendent of Customs at Alibag in January-

February, 1993 and that he had accompanied the accused R.K.

Singh, Assistant Collector of Customs (A-102) on 6.1.1993 to

Hotel Persian Darbar, alongwith Shri Lotle (PW.154), where


                                                            236
                                                            Page 236
negotiations had taken place with the accused Mohd. Dossa and his

associates, regarding the amounts that were to be paid to various

officials for the landing of smuggled goods, and where it was

finally settled that Mohd. Dossa would pay a sum of Rs.7,80,000/-

for each landing. On 8.1.93, the appellant (A-90) had seen Mohd.

Dossa, whom he had met on 6.1.1993, talking to R.K. Singh (A-

102) in his office. He was introduced by R.K. Singh (A-102) to

Uttam Potdar (A-30), a landing agent, in the third week of January.

R.K. Singh (A-102) had instructed the appellant (A-90) to

approach Uttam Potdar (A-30), who had handed over one plastic

box to the appellant (A-90), which he had given to R.K. Singh (A-

102). R.K. Singh (A-102) had given a sum of Rs.1 lakh to the

appellant (A-90) as part payment for the earlier landing made in the

first week of December, 1992 and also for the one on 9.1.1993. For

the said landings, R.K. Singh (A-102) had been paid a sum of

Rs.3.5 lakhs on 19.1.1993. The appellant (A-90) had gone to the

rest house at Shrivardhan, and there he had met R.K. Singh (A-

102). At the said rest house, Dawood Phanse (A-14) had also met

R.K. Singh (A-102). R.K. Singh (A-102) had given instructions to

the appellant (A-90) on 2.2.1993, to reach Hotel Big Splash and

contact Dadabhai Parkar (A-17), as he had told R.K. Singh (A-102)

that a landing was likely to take place on 5/6.2.1993 at Bankot


                                                                237
                                                               Page 237
Creek. Subsequently, Dadabhai (A-17) informed him (A-102) that

the work of the landing had been delayed as a dead body had been

found at the said place. The appellant (A-90) had accompanied

R.K. Singh (A-102) and Inspector Padwal on 12.2.1993, and all of

them then reached the residence of Dadabhai Parkar (A-17), held a

meeting with him and then returned to the Mhasla rest house,

where Sarfaraz (A-55), son of Dawood Phanse (A-14) met R.K.

Singh (A-102) and handed over to him a plastic bag containing

Rs.3 lakhs. Uttam Potdar (A-30) had also come to the rest house

and spoke to R.K. Singh (A-102). R.K. Singh (A-102) had given a

sum of Rs. 15,000/- to the appellant (A-90) on 13.2.1993, and had

told him that the said money was being paid against the landing

which had taken place on 3.2.1993 at Shekhadi. He further stated

that the ill-gotten money amounting to Rs.1,35,000/- for a total of

four landings, had been kept with the father-in- law of the appellant

(A-90), Shamsuddin Rajinsaheb Inamdar.


396. Confessional statement of Dawood @ Dawood Taklya
     Mohammed Phanse @ Phanasmiyan (A-14):

      He has revealed that a sum of Rs.3 lakhs was paid to the

Alibagh Customs Office when the appellant (A-90) had visited his

house on 14/15.2.1993 alongwith Inspector Padwal.




                                                                238
                                                                Page 238
397. Confessional statement of Uttam Shantaram Potdar (A-30) :


      He has revealed that he had been paying bribes to the

appellant (A-90) and to various custom officers for each landing,

and that he had also paid the staff of Shrivardhan Customs, a sum

of Rs.1.5 lakh. A sum of Rs.3 lakhs had also been given to him by

Firoz to distribute among all the other officers.    The staff of

Shrivardhan Customs made a complaint stating that the said

amount was too low, and hence, the accused (A-30) had paid a sum

of Rs.10,000/- from his own pocket, for all, to Sayyed, Customs

Superintendent, the appellant (A-90), Rs.2.5 lakhs to R.K. Singh

(A-102) and Rs. 1 lakh to the Alibagh staff. He further revealed

that the money that he had given to the appellant (A-90), was from

his own share.

398. Confessional Statement of Mohmed Salim Mira Moiddin
     Shaikh @ Salim Kutta (A-134):

      He has stated that in the first week of January, 1993, three

custom officers, including R.K. Singh (A-102), Sayyed (A-90) and

one other officer, had come to Hotel Persian Darbar where the said

accused (A-134) was present with Mohd. Dossa, Mohd. Kaliya,

Abdul Qayum and Mohd. Mental. Mohd. Dossa had discussed his

landing operation and the amount that was to be paid for each

landing as a bribe to them alongwith the customs officers. It was


                                                              239
                                                             Page 239
finally agreed, that a sum of seven to eight lakh rupees would be

paid by Mohd. Dossa to the customs officers for each landing. The

customs officers had also asked Mohd. Dossa to provide certain

goods that could be shown as seized. Immediately thereafter, a

landing took place for the purpose of which, the accused (A-134)

went to the customs office at Alibagh. The appellant (A-90) was

present at the office, and they informed the appellant (A-90) that

Mohd. Dossa's landing would take place at Dighi Jetty The

appellant (A-90) went and called R.K. Singh (A-102) from his

residence, and the accused (A-134) then told him about the

landing. Both of them (A-90 and A-102), gave their permission for

the same. In pursuance thereof, the said landing took place, and

Uttam Potdar (A-30) made all the requisite arrangements. Four

trucks participated in the landing operation.


399. Confessional statement of Mohmed Kasam Lajpuria @
     Mechanic Chacha (A-136):

      According to him, Mohd Dossa, Salim Kutta (A-134), Firoz

Qayum Sajli, Arif Lambu and Mechanic Chacha (A-136) had gone

from Panvel to Bombay and had attended a meeting at Hotel

Persian Darbar. After sometime, customs officers R.K. Singh (A-

102), the appellant (A-90), and 4-5 other customs officials were

preparing to leave office in a white Ambassador and a jeep. After


                                                              240
                                                             Page 240
their departure, he came to know from Mohd. Dossa, that in the

aforementioned meeting, an amount of Rs.7-8 lakhs had been

fixed for payment to customs officials as a bribe, for a single

landing. Upon the instructions of Mohd. Dossa, this accused (A-

136) reached, alongwith the other accused from Bombay to

Mhasla, Alibagh as the said landing was to take place there, on

9.1.1993.   They had already been told to make all requisite

arrangements for the same, alongwith Uttam Potdar (A-30),

Shabbir Qadri after talking to R.K. Singh (A-102), the appellant

(A-90) and also other customs officials.


400. Confessional statement of Sharif Abdul Gafoor Parkar
     @ Dadabhai (A-17):

      He has disclosed facts in relation to the landing at Shekhadi.

He was informed by Tiger Memon (AA) that a landing would take

place on 3.2.1993. Additionally, Tiger Memon had told him to

contact Assistant Collector R.K. Singh (A-102) over the phone, to

tell him that he was an informant and that he wanted to provide to

him certain information, for which he should come to Hotel Big

Splash. R.K. Singh (A-102) told him that it was not possible for

him to come there, but he would send his Superintendent and in

pursuance thereof, the appellant (A-90) had gone there.       Tiger

Memon and co-accused (A-17) engaged in certain discussion, and


                                                                241
                                                               Page 241
Tiger Memon told him that there was some landing work on the

said date. He further stated that they had received Rs.15 lakhs to

be distributed among officers, as per the instructions of Dawood

Takliya (A-14), out of which a sum of Rs. 2 lakhs was paid to R.K.

Singh (A-102), Inspector Padwal and to the appellant (A-90).


401. Depositions of Sitaram Maruti Padwal(PW-146),
     Madhukar Krishna Dhandure (PW-153) and Yashwant
     Balu Lotale (PW-154) :

        They are customs officials and have deposed and approved

that Assistant Collector R.K. Singh (A-102) and the appellant (A-

90), alongwith other Custom officers of the Alibagh Division went

to the Persian Darbar hotel.   There was a meeting held at the said

hotel, and there were talks held with Mohd. Bhai for about half an

hour.

402. Deposition of Shivkumar Ramanand Bhardwaj (PW-470):

        He has stated that in January 1993, he had received certain

information from the DRI Bombay, to the effect that some ISI

syndicates who were located in the Middle East and also in

Bombay, may try to smuggle contraband and arms into the districts

of Bombay, Raigad and Bassin. After receipt of said information,

he had sent DO letter (Ext. 1536) to the Assistant Collector R.K.

Singh (A-102) and others, and had also given instructions over the



                                                               242
                                                               Page 242
telephone. This DO letter was proved by Pradeep Kumar (PW-

471). The said letter was received by R.K. Singh (A-102) and this

information was further circulated to all the Superintendents

working under his jurisdiction.


403. In the statement made under Section 313 of Code of

Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.'),

the appellant (A-90) has completely denied the recording of his

confessional statement by Chaturvedula Shstri (PW-186), while

answering the questions put to him. The appellant (A-90) refused

to acknowledge most of the incriminating material that was pointed

out to him by the Designated Court.         The Designated Court

considered the same in great detail, appreciating it alongwith the

cross-examination of Chaturvedula Shstri (PW-186).              The

appellant (A-90) has further stated under Section 313 Cr.P.C. that

in his confessional statement, his signatures were forcibly obtained

on 1.5.1993, and subsequently on 3.5.1993 at a few places, when a

sentence was inserted in the margin of page 3. The same were

obtained in the office of SP T.S. Bhal, P.W.191, through force and

by torturing the appellant (A-90).




                                                                243
                                                               Page 243
404. However, after considering everything on record, the learned

Designated Court came to the conclusion that there was no

manipulation in his confessional statement, and that the same had

voluntary been made by appellant (A-90). His explanation was

that, after recording his confessional statement, Chaturvedula

Shstri (PW-186) had sent it to the CJM, who had not accepted the

same, and had returned it. Therefore, there was manipulation.

Such an averment was rejected by the Designated Court, pointing

out that the same had been sent directly by Chaturvedula Shstri

(PW-186) to the Designated Court, Pune, which had received it

directly. Therefore, the question of any kind of manipulation did

not arise. Thus, the confessional statement cannot be termed as a

manufactured document, as has been claimed by appellant (A-90).


405. The evidence on record leads to the conclusion that the

appellant (A-90) had participated in the meetings held at Hotel

Persian Darbar on 6.1.1993 in connection with landings. The

appellant accepted a huge amount of money as his share of illegal

gratification from co-accused R.K. Singh (A-102) permitting the

other accused persons for landing on 9.1.1993, and part of the same

had been recovered from the appellant. The appellant (A-90) also

participated in the meeting at Hotel Big Splash, wherein Sharif



                                                               244
                                                              Page 244
Abdul Gafoor Parkar @ Dadabhai Parkar (A-17) and Tiger Memon

(AA) were present and therein the negotiations took place for

Shekhadi landing. As the said landing took place the involvement

of the appellant becomes apparent.

       The evidence further disclosed that the landings contained

contraband goods i.e. sophisticated arms, ammunition and

explosives and the same could not be used for any purpose other

than commission of terrorist acts.


406.    We find no reason to interfere with the judgment of the

Designated Court. The appeal is dismissed accordingly.




                                                             245
                                                            Page 245
             CRIMINAL APPEAL NO. 1632 of 2007


Ranjit Kumar Singh                                   .....Appellant

                                Versus

State of Maharashtra thr. CBI                        ... Respondent


407. This appeal has been preferred against the judgments and

orders dated 18.9.2006 and 19.7.2007 passed by Special Judge of

the Designated Court under the TADA for the Bombay Bomb Blast

Cases, Greater Bombay, in Bombay Blast Case No. 1/1993. The

appellant (A-102) has been convicted under Section 3(3) TADA

and    has been awarded the sentence to undergo rigorous

imprisonment for 9 years alongwith a fine of Rs. 3,00,000/- and in

default of payment of fine, to suffer further RI for 4 years.


408. Fact and circumstances giving rise to this appeal are that :

A.    In addition to the first charge of general conspiracy, the

appellant (A-102), who was an Assistant Customs Collector

(Alibagh), the adjoining district of Raigad, where three landings

took place was charged under Section 3(3) TADA for attending the

conspiratorial meeting at the Persian Darbar on 6.2.1993,

alongwith co-accused Mohmed Sultan Sayyed (A-90) and Customs

Superintendent Ahmed Alimed (PW-317), in which the wanted



                                                                 246
                                                                 Page 246
accused Mohd. Ahmed Dossa (AA), Mohmed Jaipuria and

Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136) were also

present and had agreed to allow Mohd. Ahmed Dossa (AA) and his

associates to continue with their smuggling activities within his (A-

102) jurisdiction in return for the payment of Rs.7.8 lakhs per

landing. In furtherance of the same, Mohd. Ahmed Dossa (AA)

and his associates smuggled ammunition for the commission of

terrorist acts.

B.     Furthermore, he has also been charged for facilitating the

smuggling and transportation of arms, ammunition and explosives

by Tiger Memon (AA) and his associates on 3 rd February and 7th

February, 1993 at Shekhadi owing to which, arms, ammunition and

explosives were brought into the country for the commission of

terrorist acts.    He had received specific information and

knowledge, that arms, ammunition and explosives were being

smuggled into the country.     Hence, he has been charged under

Section 3(3) TADA, and was found guilty vide judgments and

orders dated 18.9.2006 and 19.7.2007.

       Hence, this appeal.


409. Mr. Sushil Kumar, learned senior counsel appearing for the

appellant (A-102), has submitted that the appellant (A-102) has



                                                                247
                                                                Page 247
been acquitted of the first charge of general conspiracy, and a

finding of fact has been recorded by the Designated Court, that

there was no evidence on record to show that the appellant had

accepted any bribe from any of the smugglers or their landing

agents etc. The confessional statement of the appellant has been

rejected by the Designated Court on the ground that it was recorded

by the Inspector of Police, and such person has not been accepted

as a competent authority under Section 15 TADA, to record such

statement. Therefore, such a confession cannot be taken into

consideration.   Eight co-accused in their confessional statements

have named the appellant stating that the landing agents of the

smugglers had been in contact with him and that they had been

paying to him, amounts as were fixed per landing. However, the

statements of three co-accused i.e. Uttam Shantaram Potdar (A-

30), Mohmed Salim Mira Moiddin Shaikh @ Salim Kutta (A-134)

and Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136) were

recorded subsequent to the date of amendment dated 22.5.1993.

Therefore, the confessional statements of five other co-accused,

which were recorded prior to the date of the said amendment,

cannot be relied upon. The contents of the confessional statements

of the aforementioned three co-accused do not inspire confidence

and cannot be relied upon. The appellant (A-102) has wrongly been


                                                               248
                                                              Page 248
convicted under Section 3(3) TADA and awarded a sentence of 9

years alongwith a fine of Rs.3 lakhs. The appellant has already

served about 7 years of imprisonment, and has also deposited the

fine. Moreover, other officers of the Customs Department were

also convicted in this case, particularly, Jaywant Keshav Gurav (A-

82), Mohmed Sultan Sayyed (A-90), Somnath Kakaram Thapa (A-

112) (dead) and Sudhanwa Sadashiv Talwadekar (A-113), and

among them, Somnath Kakaram Thapa (A-112) (dead) who was a

superior officers to the appellant (A-102), and also others who

were his subordinates, have been awarded a lesser sentence. A

sentence of 8 years was awarded to Jaywant Keshav Gurav (A-82)

and of seven years to Mohmed Sultan Sayyed (A-90). Hence, his

sentence should be reduced to the period already undergone.


410. Shri Mukul Gupta, learned senior counsel appearing for the

respondent, has vehemently opposed the appeal contending that the

confessional statements of all the co-accused, though recorded

prior to the date of amendment, must be relied upon. The Collector

of Customs Shiv Kumar Bhardwaj (PW-470) informed the

appellant (A-102) over the telephone on 25.1.1993 that he (PW-

470) had received definite information through Intelligence that

arms and ammunition would be smuggled into India alongwith



                                                               249
                                                              Page 249
silver and gold and that landings of the same would take place

within the territorial jurisdiction of the appellant (A-102). Hence,

he must take all necessary precautions and seize both, the weapons

as well as the contraband silver and gold.        Undoubtedly, the

appellant (A-102) regularly informed the Collector about the

progress made by him in this regard, but did not take any actual

effective measures, instead, he spent his time bargaining and taking

bribes from the smugglers, to facilitate the landing and

transportation of the said goods. Hence, no leniency must be shown

to him. The appeal is liable to be dismissed.


411. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


412. The confessional statement made by the appellant has rightly

been rejected by the Designated Court, and we do not wish to

spend further time on this issue. This, being the first appeal, it

becomes necessary for us to re-appreciate the evidence on record

while considering the same.


413. Evidence against the appellant (A-102) :

(a)   Confessional statement of the appellant (A-102)
(b)   Confessional Statement of Uttam Shantaram Potdar (A-30)
(c)   Confessional Statement of Jaywant Keshav Gurav (A-82)


                                                                250
                                                               Page 250
(d)     Confessional statement of Mohd. Sultan Sayyed (A-90):
(e)     Confessional Statement of Mohd. Salim Mira Moiddin
        Shaikh (A-134)

(f)     Confessional Statement of Mohmed Kasam Lajpuria (A-
        136)
(g)     Confessional Statement of Dadabhai Abdul Gafoor Parkar
        (A-17)
(h)     Deposition of Shivkumar Bhardwaj (PW-470)
(i)     Deposition of Yashwant Balu Lotale (PW-154)
(j)     Deposition of Sitaram Maruti Padwal (PW-146)
(k)     Deposition of Madhukar Krishna Dhandure (PW-153)
(l)     Deposition of Tikaram Shrawan Bhal (PW-191)



414. Confessional Statement of Uttam Shantaram Potdar (A-30):

         He has corroborated the statement of the co-accused in

respect of the meetings held, and the acceptance of bribe. He has

stated that on 4.12.1993, a Customs Sepoy had come to him and

had told him that he had been called to Mhasla. On reaching there

at 8.00 p.m., the Assistant Collector R.K. Singh, appellant (A-102),

called him to his chamber and on enquiry, A-30 disclosed about the

previous landing dated 3.12.1992. On 5.12.1992, appellant (A-102)

was paid Rs.2.5 lacs for landing. In January 1993, Superintendent

Sayyed was given Rs.2.5 lacs to give the same to appellant (A-

102).




                                                                251
                                                                Page 251
415. Confessional Statement of Jaywant Keshav Gurav (A-
     82):

      The accused (A-82) was working with the Customs

Department, and his job was to prevent smuggling along the sea-

coast, to nab smugglers by collecting secret information against

them and to file cases against them as well. Shri R.K. Singh (A-

102) had been the Assistant Collector of the Marine Preventive

since September 1992. In December, 1992, a letter was received

by customs officials stating that it was likely that smuggling of

weapons would take place along the Western coast. The accused

(A-82) knew Dawood Phanse (A-14), Uttam Potdar (A-30), Rahim

Laundriwala, and Shabir Kadri who were all working as landing

agents for smuggling activities in the said area.

      On 3.12.1992, the accused (A-102) came to Mhasla. The

accused (A-82) met the appellant (A-102) and discussed about a

landing on 2.12.1992. The appellant (A-102) had a talk also with

Dawood Phanse (A-14) at the Mhasla rest house. The appellant (A-

102) called him (A-82) and told him to go to Bombay the next day,

to collect money from Uttam Potdar (A-30).

      After 2-3 days Uttam Potdar (A-30) came to his room at

night at Shrivardhan, and gave him Rs.4,00,000/- and a direction

to pay out of the said amount, a sum of Rs.2,50,000/- to the



                                                             252
                                                            Page 252
appellant (A-102) and Rs.1,50,000/- to the Superintendent. He (A-

82) handed over the money to the appellant (A-102) in a building

near the post office and thereafter, returned to Shrivardhan.   On

9.1.1993, he (A-82) met the appellant (A-102) and the appellant

(A-102) told him that Mohd. Dossa's landing was going to take

place and directed him (A-82) to help him.


416. Confessional statement of Mohd. Sultan Sayyed (A-90):

        He was the Superintendent Customs Preventive, Alibagh.

Some time in the month of November, 1992, the appellant (A-102)

had told    M.S. Sayeed (A-90) that Rs.1,00,000/- was to be

recovered from Dawood @ Dawood Taklya Mohammed Phanse @

Phanasmiyian (A-14) towards penalty. A-90 then directed Dawood

Mohammed Phanse (A-14) to pay the said amount, failing which

his name would be intimated to the Collector, Raigad.            In

December 1992, the appellant (A-102) and one Inspector Padwal

forced him to accept a sum of Rs.35,000/- towards the smuggling

of silver on 2nd December, 1992 at Dighi. When he refused to

accept the same, the appellant (A-102) threatened to spoil his

confidential report. As regards the landing on 2nd December, 1992,

Inspector Gurav (A-82) paid a certain amount to the appellant (A-

102).



                                                                253
                                                                Page 253
      On 6.1.1993 he (A-90), alongwith the appellant (A-102),

Customs Superintendent Lotale (PW-154) reached Hotel Persian

Darbar, where three persons including Mohammed Dossa (AA)

were already present. From their discussion, he learnt that the

appellant (A-102) had demanded a sum of Rs.10 lakhs for each

landing. In the 3rd week of January, 1993, the appellant (A-102)

called (A-90) into his office and introduced him to Uttam

Shantaram Potdar (A-30), and he learnt that A-30 had given the

appellant a sum of Rs.3,50,000/-.

      On 2.2.1993, the appellant (A-102) told the co-accused (A-

90) to go to Hotel Big Splash. There he met Dadabhai (A-17) who

told him that a landing might take place at Bankot Khadi on 5 th/6th

February, 1993. On 3rd and 4th February, 1993, Dadabhai told the

co-accused (A-90) to deliver a personal message to the appellant

(A-102) to the effect that as a dead body had been found at his

work place, the said work had been postponed, and that further, he

would contact the appellant (A-102) before the job was to be done.

Dadabhai (A-17) told (A-90) that he was the son-in-law of A.R.

Antule.

      On 12.2.1993 co-accused (A-90) learnt that Dawood

Phanse's son (A-55) had paid the appellant (A-102), Rs.3.5 lacs.




                                                               254
                                                               Page 254
On 13.2.1993, the appellant (A-102) had paid a sum of Rs.50,000/-

to (A-90) for the landing at Shekhadi on 3.2.1993.


417. Confessional Statement of Mohd. Salim Mira Moiuddin
     Shaikh (A-134):

      In his confessional statement, he (A-134) has stated that he

had gone to Hotel Persian Darbar alongwith Mohd. Dossa, Mohd.

Kaliya, Abdul Qayum and Mohd. Mental, and had met Customs

Officers including the appellant (A-102).   At the said meeting, it

was decided that Rs.7-8 lakhs would be paid for each landing to the

said Customs Officers by Mohd. Dossa. A few days later, Mohd.

Dossa told the Customs Officers that a large quantity of arms and

ammunition would be brought at Mhasla, for which arrangements

were to be made. He (A-134) and Feroz informed the appellant

(A-102) of the said landing on the instructions of Mohd. Dossa.


418. Confessional Statement of Mohmed Kasam Lajpuria (A-
     136):

      He (A-136) stated that the appellant (A-102) had been

present at the meeting held at Hotel Persian Darbar on 6.1.1993,

where it was decided that Rs.9-10 lakhs would be paid to the

Customs staff for one landing. Mohd. Dossa instructed Salim and

Feroz to make arrangements for Dighi landing after talking to

appellant (A-102).


                                                               255
                                                              Page 255
419. Confessional statement           of   Sudhanwa        Sadashiv
     Talwadekar (A-113):

      He (A-113) did not name the appellant (A-102), but

corroborated that the landing took place on 9.1.1993.


420. Confessional Statement of Dadabhai Abdul Gafoor (A-
     17):


     In his confession, A-17 disclosed that he used to facilitate the

landings of smuggled goods, and that he had been working with

Tiger Memon (AA) and Dawood Taklya (A-14) for the past 1-1/2

years. The last two jobs involved the landing of weapons and

explosives. On 3rd February, 1993, he (A-17) contacted appellant

(A-102) on telephone on the instructions of Tiger Memon (AA)

and asked him to meet Tiger Memon at Hotel Big Splash. The

appellant (A-102) sent Superintendent Sayyed (A-90) who

negotiated with Tiger (AA), and Tiger told him that he had some

work that day.


421. Deposition of Shivkumar Bhardwaj (PW-470):


      In his statement, he has revealed that he had received

information from the Directorate of Revenue Intelligence (DRI)

that a big quantity of automatic weapons would be smuggled into

India by the ISI alongwith contraband, gold and silver within 15-30


                                                                256
                                                                Page 256
days at Vasai, Dadar Pen around Bombay, Shrivardhan, Bankot,

Ratanagiri and along the southern beaches of Goa. In view thereof,

he had sent letter dated 25.1.1993 (Ext. 1536) to the appellant (A-

102), and had also spoken to him over the telephone on the very

same day, and had cautioned him to keep a close watch and remain

highly alert regarding the possibility of the landing of arms

alongwith the other contraband. He (PW-470) had further advised

A-102 to pay close attention to the situation, and to make an

attempt to seize the weapons as well as the contraband. In the event

of seizure of such goods, the officer (A-102) would be rewarded,

and a lucrative reward would also be given to the person who

furnished any requisite information, and that it was for this

purpose, that the officers of the customs department were mixing

closely with the smugglers so as to win their confidence and dupe

them into giving them such information.        The witness further

revealed that the appellant (A-102) and Sh. S.N. Thapa (dead), had

kept him informed about the steps taken in this regard.


422. Deposition of Yashwant Balu Lotale (PW-154):


      In his statement he has revealed that he and the appellant (A-

102), were working as Assistant Collectors of Customs and he has

deposed that he had gone alongwith the appellant (A-102) and


                                                                257
                                                               Page 257
M.S. Sayyed (A-90) on 6.1.1993 after leaving the Alibagh office

and that they had carried out the work of collecting intelligence by

patrolling areas until 1.00 a.m. on 7.1.1993. Thus, he has deposed

in favour of the appellant (A-102).


423. Deposition of Sitaram Maruti Padwal (PW-146):

      He was inspector of Customs and was called by the appellant

(A-102) to his cabin in September 1992, and he (A-102) had

enquired as to whether the penalty of Rs.1 lac imposed upon

Dawood Phanse (A-14) had been recovered. The witness, after

checking the record, informed the appellant (A-102) that the

penalty had not been recovered. On 11.2.1993, three parties were

formed for patrolling and in one such party, he (PW-146) was also

included.   The appellant (A-102), Sayyed (A-90) and the witness

(PW-146) had gone to the residence of Dadabhai (A-17). On being

informed, Dadabhai Parkar (A-17) came and met the appellant (A-

102) who remained seated in the car. A discussion had ensued

between Dadabhai (A-17) and the appellant (A-102). From there

they came to the Rest House, where A-102 met a person sent by

Dawood Phanse (A-14).




                                                                258
                                                               Page 258
424.   Deposition of Madhukar Krishna Dhandure (PW-153):

       In the year 1993, appellant (A-102), was the main officer at

the customs office in Alibagh. On 6.1.1993, at about 5.00 p.m. he

went for patrolling alongwith A-102.


425. From the evidence referred to hereinabove, the prosecution

has established the case against the appellant (A-102) as:

-      The appellant knew Mohd. Dossa, Tiger Memon and

their landing agents and had been allowing the accused persons

to smuggle contraband goods into India, for which he was

getting hefty bribes.

-      There had been a meeting on 6.1.1993 which was

attended by the appellant (A-102), alongwith Sayyed, Mohd.

Dossa and other persons. It was decided in the meeting that 7-8

lacs would be paid to the Custom Officers for each landing.

-      Landing took place on 9.1.1993, for which the appellant

had been informed by Mohd. Dossa through Salim and Feroz

that the landing would take place on that date.

-      Arms and ammunition sent by Mustafa Majnu landed at

Dighi Jetty on 9.1.1993.




                                                               259
                                                              Page 259
-      Appellant (A-102) received illegal gratification from the

accused persons for this landing and had received the bribe for

the landing done on 2.12.1993 by Mohd. Dossa.

-     Appellant (A-102) knew about the landing which took

place on 3.2.1993 and 7.2.1993 at Shekhadi.

-     Appellant had received the information from Sh.

Bhardwaj, Collector of Custom on 25.1.1993 that I.S.I.

Syndicate located in Middle East and Bombay may try to

smuggle contraband and arms in the Districts of Bombay,

Raigad and Thane. Despite this specific information he allowed

Tiger Memon (AA) and his persons to smuggle arms,

explosives etc. in India.


426. After considering the entire evidence on record, the learned

Special Judge came to the conclusion as under:

      "265) Without making any unnecessary dilation
      about the self-eloquent evidence about which the
      relevant excerpts are cited earlier it can be safely
      said that considering the act committed by these 4
      accused as reflected from same i.e. participation of
      A-102 & 90 in Persian Darbar meeting and
      negotiating with smugglers about the bribe amount
      to be paid and granting them a charter to smuggle
      the contraband articles or in fact any thing, the act
      of A-82 inspite of being present on the spot of
      interception of goods by police, instead of seizing
      the same allowing the same to be transported
      further and in most clandestine manner piloting the
      convoy carrying the contraband goods on its way to


                                                               260
                                                               Page 260
destination uptil a particular spot, advising the
policemen in clandestine manner etc., and of A-II3
though not being directly connected with said
landing readily & willingly accepting his share of
booty from the bribe amount received for the said
landing and thereby denoting his implied
connivance for the said operation seized earlier; not
revealed otherwise in view of himself being not
directly involvement in commission of act and
considering the further acts committed byA-90, 82
and 113 regarding Shekadi landing and so also to
some extent by--A-l02 clearly reveals themselves
having committed the offence u/s. 3(3) of TADA for
which each of them has been charged with at this
trial.
266) However, the careful consideration of said
evidence and even after taking into consideration
the fact that A-l02 and A-90 had participated in
Persian Darbar meeting; still the evidence having
fall short of themselves having connived with the
conspirators in this case for commission of said act
for the purposes of conspiracy, it will be difficult to
hold them or an of them liable for offence of
conspiracy for which each of them has been charged
with on the basis of evidence surfaced regarding
Dighi landing episode and so also about Shekadi
landing episode about which the discussion is made
later on.
267) Truly speaking receipt of bribe amount for
allowing the said operation considered from proper
angle also connotes that the act committed by the A-
102, 90, 113 & 82 being primarily for receipt of
bribe amount by misusing/abusing their official
position would definitely fallout of sphere of the
conspiracy for which the relevant operation was
organized and effected by other co-accused. The
same is obvious as conspirators always join the
conspiracy or become members of conspiracy due to
being interested in either furthering the object of
conspiracy or achieving the object of conspiracy.
The payment of the money for commission of act
which may have a semblance of furthering object of
conspiracy will still not make the concerned liable


                                                          261
                                                          Page 261
      for offence of conspiracy. The same is apparent as
      the act committed by them would be for the
      purposes of receiving the said payment and not
      mainly for furthering the object of conspiracy. It is
      true that their such acts as ruled earlier would
      amount to commission of offence of an abetment or
      assistance et for commission of terrorist act by other
      conspirators and they could be held liable for the
      same but still they cannot be said to be involved in
      the conspiracy. In view of the aforesaid, none of the
      A-102, 90, 113 & 82 can be said to be guilty for
      commission of offences of conspiracy for which the
      charge at head 1st ly is framed against them or even
      otherwise for any smaller conspiracy. However, by
      way of abundant caution it will be necessary to
      record that aforesaid observations is limited to
      above stated 4 accused from Customs dept., and the
      same is not in relation to A-102 i.e. Addl. Collector
      of Customs whose case clearly appears to be
      different i.e. his connection with Tiger Memon being
      spelt from evidence revealed during Shekadi
      landing, there being hardly any evidence of himself
      having received...."


427. There is enough evidence on record to show the involvement

of the appellant (A-102) in facilitating the smuggling of arms,

ammunition and explosives within his jurisdiction in lieu of

payment of illegal gratification. We find no reason to interfere with

the conclusion of the learned Special Judge. The appeal lacks merit

and is accordingly dismissed.




                                                                 262
                                                                Page 262
            CRIMINAL APPEAL NO. 271 OF 2008



Sudhanwa Sadashiv Talavdekar                          ...Appellant

                               Versus

State of Maharashtra                                 ... Respondent



428. This appeal has been preferred against the judgments and

orders dated 2.11.2006 and 29.5.2007 passed by the Special Judge

of the Designated Court under the TADA for the Bombay Blast,

Greater Bombay in the Bombay Blast Case No.1/93, by which the

appellant (A-113) has been found guilty and has been convicted

under Section 3(3) TADA and has been sentenced to undergo RI

for 8 years alongwith a fine of Rs.2,00,000/- and in default of

payment of fine, to suffer further RI for 3 years.


429. Facts and circumstances giving rise to this appeal are that :

A.    In addition to the main charge of conspiracy, he has also

been charged under Section 3(3) TADA for aiding, abetting, and

knowingly facilitating the smuggling of arms, ammunition and

explosives, which were smuggled into India while he was posted

as the Superintendent of Customs, Shriwardhan Circle of the

Alibagh Division, Raigad Dist. Maharashtra.



                                                                 263
                                                                 Page 263
B.    Upon the conclusion of the trial, the appellant (A-113) was

found guilty under Section 3(3) TADA and has been convicted

and sentenced as mentioned hereinabove. He (A-113) was

however, acquitted of the general charge of conspiracy.

      Hence, this appeal.


430. The appellant appeared in person and argued that his

confession was obtained by coercion and was retracted within 20

days. There are contradictions in the statements made by both the

witnesses, Dawood Taklya Mohammed Phanse @ Phanasmiyan

(A-14) and Sharif Abdul Gafoor Parkar @ Dadabhai (A-17).

Therefore, their confessions cannot be relied upon. He had falsely

been enroped in the case. Thus, the appeal should be allowed.


431. Shri Mukul Gupta, learned senior counsel appearing for the

State has vehemently opposed this appeal, and has submitted that

the appellant had been named specifically in the confessional

statements by the co-accused. He was taking illegal gratification in

lieu of not seizing contraband goods that were being smuggled into

the country, which was within his power and also his duty. Thus,

the appeal should be dismissed.




                                                                264
                                                                Page 264
432. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


433.Evidence against the appellant (A-113):

(a)   Confessional statement of the appellant
(b)   Confessional statement of Jaywant Keshav Gurav (A-82)
(c)   Confessional statement of Dawood Taklya Mohammed
      Phanse @ Phanasmiyan (A-14)

(d)   Confessional statement of Sharif Abdul Gafoor Parkar @
      Dadabhai (A-17)

(e)   Confessional statement of Mohmed Sultan Sayyed (A-90)
(f)   Confessional statement of Uttam Shantaram Potdar (A-30)
(g)   Confessional statement of Nasir Abdul Kader Kewal @Nasir
      Dakhla (A-64)

(h)   Deposition of Yashwant Balu Lotale (PW-154)
(i)   Deposition of Usman (PW-2)
(j)   Deposition of Bharat Hiramal Jain (PW-165)
(k)   Deposition of Dipak Balkrishna Rauth (PW-149)
(l)   Deposition of Chandrashekhar (PW-591)
(m)   Deposition of Shivkumar Bhardwaj (PW-470)

434. Confessional Statement of S.S. Talwadekar (A-113):

      The evidence against the appellant (A-113) is his own

confession made on 2nd/4th May, 1993 which was recorded by

Tikaram S. Bhal (PW.191). In his confessional statement, he has

admitted that he had gone several times to the house of Rahim

Laundriwala alongwith Jaywant Keshav Gurav (A-82) and that he


                                                              265
                                                           Page 265
was closely associated with Dawood @ Dawood Taklya

Mohammed Phanse @ Phanasmiyan (A-14) and Bashir Mandlekar,

who were landing agents. He (A-113) would seek information

about smuggling and also about the collecting of money for

facilitating the landing and transportation of smuggled contraband

silver and gold. He (A-113) had gone to the house of Rahim

Laundriwala alongwith Jaywant Keshav Gurav (A-82), Customs

Inspector and had taken an amount of Rs.1,60,000/- from him

which he (A-113) had distributed to others, and had kept a sum of

Rs.72,000/- for himself. For each landing, he (A-113) was paid an

amount of Rs.1,60,000, which he would distribute among the

others, while keeping a substantial share for himself. However, for

the landing on 3.12.1992 he had received only Rs.1,50,000/- from

Uttam Shantaram Potdar (A-30), and after distribution of amounts

to other officers, his own share became limited to only Rs.45,000/-.

      After the riots between December, 1992 and January, 1993

in Bombay, Rahim Laundriwala had told him (A-113) that the

situation was very tense, however, despite this, the said landing

would take place. The appellant (A-113) proceeded on leave from

9.1.1993 to 23.1.1993, and learnt only subsequently, that a landing

had taken place on 9.1.1993. Despite the fact that he had been on

leave on the said date, he (A-113) had received a sum of


                                                                266
                                                               Page 266
Rs.40,000/- from Uttam Shantaram Potdar (A-30). The appellant

(A-113) had also received a message from Rahim Laundriwala that

another landing of silver would take place on 29.1.1993 at

Shekhadi, but subsequently, he was informed that the said landing

could not take place.

      Regarding the incident of the landing on 2.2.1993, the

appellant (A-113) has stated that he had gone alongwith Jaywant

Keshav Gurav (A-82), Customs Inspector, to Shekhadi. In fact, in

light of the fact that he had received directions from his superior

officers, to be on guard, as it was likely that arms and ammunition

would be smuggled alongwith silver and gold, he had gone to

Shekhadi. It was dark at about 10.30 - 11.00 p.m., and when the

appellant (A-113) reached the said place, with Jaywant Keshav

Gurav (A-82), Customs Inspector. Here, he found Rahim

Laundriwala and Dawood Taklya Mohammed Phanse @

Phanasmiyan (A-14), who introduced him to Tiger Memon (AA).

Tiger Memon asked the appellant (A-113) whether he was the

Superintendent Inspector, and when the appellant (A-113)

answered in the affirmative, Tiger Memon told him (A-113) that

he had been trying to contact the appellant for 2-3 days, however

he had failed in his attempts to do so. The appellant (A-113) also

asked Tiger Memon whether he was smuggling weapons etc. To


                                                               267
                                                              Page 267
the said question, Tiger Memon (AA) replied that he would never

indulge in such activities.   The appellant (A-113) has further

confessed that even for the said landing, Jaywant Keshav Gurav

(A-82), Customs Inspector, had received a sum of Rs.1,60,000/-,

which had been distributed, and the appellant in turn, had received

a sum of Rs.54,000/- as his share. He has further stated that he had

spent all the money that he had received from the smugglers from

time to time. He has provided details of the passbook account

numbers of his son, which were recovered by the CBI.


435. According to the confessional statement of the appellant (A-

113), he had been associated with the smugglers and had also met

Tiger Memon (AA). He had been receiving money, distributing the

same amongst other officers, and had also been spending it

himself. However, his case is that he was on leave from 9.1.1993 to

23.1.1993. Subsequently, he had met Tiger Memon (AA). He (A-

113) had been receiving money regularly and had even been paid

his share for landings that had taken place while he was on leave.

He retracted his statement on 24.5.1993 (after 20 days, in writing,

which was prepared by his advocate Hegde), stating that he had

been asked to simply sign papers, and that he had not actually

made any confessional statement.



                                                                268
                                                               Page 268
436. Confessional statement of Jaywant Keshav Gurav (A-82):

      In his confessional statement recorded by Tikaram S. Bhal

(PW.191), he has deposed that he had been working with the

appellant (A-113) who was the Superintendent (Customs) and has

corroborated the confessional statement of the appellant (A-113),

regarding visiting Rahim Laundriwala and collecting money from

him. He has made a statement that once he, alongwith the appellant

(A-113), had gone to the house of Rahim Laundriwala and that the

latter had paid an amount of Rs.1,60,000/- to the appellant (A-113),

and that the said amount was distributed amongst employees and

Inspectors at the Custom Office, including to Jaywant Keshav

Gurav (A-82). He (A-82) has further narrated similar incidents of

visiting the house of Rahim Laundriwala, the collection of money

by the appellant and the distribution of the same to other officers

on 17.9.1992, and in the month of September 1992, the first week

of October 1992, and in the first week of November 1992.


437. Confessional statement of Dawood Taklya Mohammed
     Phanse @ Phanasmiyan (A-14):

      Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-

14) has implicated the appellant (A-113) in his confessional

statement Exts. 855 and 855A which has been duly accepted by the

Designated Court. Here, he has made statements regarding the


                                                               269
                                                               Page 269
payment of money, and the full co-operation of the appellant in

activities connected to smuggling, landing and transportation.


438. Confessional statement of Sharif Abdul Gafoor Parkar
     @ Dadabhai (A-17):

      He is also a landing agent. Similarly, Sharif Abdul Gafoor

Parkar @ Dadabhai (A-17) has made disclosure statements

regarding the acceptance of money by the appellant (A-113), and

the distribution of the same amongst officers before him. He has

deposed that a sum of Rs.2.20 lakhs had been given collectively to

the appellant and to Jaywant Keshav Gurav (A-82).


439. Confessional statement of Mohmed Sultan Sayyed (A-90):


      He has supported the case of the prosecution to the extent

that he had also gone alongwith the appellant (A-113) to Jaywant

Keshav Gurav (A-82), Customs Inspector, where they had met

Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) and

R.K. Singh, Assistant Collector of Customs (A-102).


440. Confessional statement of Uttam Shantaram Potdar (A-30):

      He has supported the case of the prosecution to the extent of

the landing at Shrivardhan, and the        payment of money to

Mohmed Sultan Sayyed (A-90).



                                                                 270
                                                                 Page 270
441. Deposition of Yeshwant Balu Lotale (PW-154):

       He is the Customs Department official who was examined to

verify the version of events narrated by the appellant (A-113), and

after examining the office record, he has deposed that the appellant

(A-113) was on leave only on 9.1.1993. He did not therefore,

support the case of the appellant stating that he had been on leave

from 9.1.1993 to 23.1.1993.


442.   Nasir Abdul Kader Kewal @ Nasir Dakhkla (A-64) has also

supported the case of the prosecution against the appellant.


443. Deposition of Usman (PW-2) :

       He has deposed that it was on 2.12.1992 when the landing

had taken place, that two persons from the Customs Department

had come at the time of the said landing. Though he did not name

the appellant (A-113), he has corroborated the confessional

statements of the appellant (A-113), and of Jaywant Keshav Gurav

(A-82), Customs Inspector.


444. Deposition of Bharat Hiramal Jain (PW-165):

       It has been proved that he had received a sum of Rs. 2.25

lakhs by way of seven cheques between December 1992 and April

1993 from the appellant for booking a flat.



                                                                271
                                                               Page 271
445. The depositions of Deepak Balkrishna Rauth (PW.149) and

Chandrashekhar (PW.591) have proved the aforementioned

amounts of cash, through pass book entries.


446. Deposition of Shivkumar Bhardwaj (PW-470):

      He has stated that in January 1993, he had received

information from the DRI Bombay to the extent that some ISI

syndicates located in the Middle East and in Bombay, would try to

smuggle contraband and arms into the districts of Bombay, Raigad

and Bassin. After receipt of the said information, he had sent DO

letter (Ext. 1536) to the Assistant Collector R.K. Singh (A-102)

and others, and had also issued instructions to them over the

telephone. This DO letter was proved by Pradeep Kumar (PW-

471). The said letter was received by R.K. Singh (A-102), and the

same information was further passed on to all the Superintendents

working under his jurisdiction.


447. The learned Special Judge after appreciating the entire

evidence on record came to the conclusion that:

      "Thus considering material in the confession of A-
      113 and aforesaid co-accused the same leads to
      the conclusion of A -113 also being involved in
      Shekadi landing operation as denoted by said
      material and as such having committed offence
      u/s. 3(3) of TADA for which he is charged at head
      2nd ly clause 'b'. Since case of A-113 is more so


                                                             272
                                                            Page 272
      over akin regarding his liability to Shekhadi
      landing with that of A-82 as both of them were at
      Shekhadi coast instead of again repeating said
      discussion it can be safely said that for same
      reason of which A-82 has been found guilty for
      commission of offence under Section 3(3) of TADA
      Act A-113 will be required to be held guilty.
      Needless to add that for same reason as stated in
      said discussion evidence pertaining to receipt of
      bribe amount and/or recovery of same during
      course of investigation and as tabulated about is
      not threadbare discussed. Thus on basis of all
      material surfaced at trial A-Il3 will be required to
      be held guilty for commission of offence u/s.3(3) of
      TADA Act. Needless to add that similarly as that
      of A-82 or even A-102 he can not be held guilty for
      offence of conspiracy for which he is charged
      with."

                                (Emphasis added)


448. The evidence on record clearly shows the involvement of the

appellant in landing. His role is the same as that of Jaywant Keshav

Gurav (A-82) as he was responsible to prevent any smuggling,

rather he had indulged in that and accepted the bribe permitting the

smugglers to bring not only gold and silver but also arms,

ammunition and explosives.      The fact of investment of money

taken by him as illegal gratification stood proved by the evidence

of Bharat Hiramal Jain (PW-165) and Deepak Balkrishna Rauth

(PW-149) and he could not furnish any satisfactory explanation for

such investment.




                                                                273
                                                               Page 273
      The learned Designated Court has rightly reached the

conclusion so far as his involvement in the offence punishable

under Section 3(3) TADA is concerned.

      In view of the above, we do not find any force in the appeal.

The appeal lacks merit and is accordingly dismissed.




                                                               274
                                                              Page 274
             CRIMINAL APPEAL NO. 598 of 2011



State of Maharashtra through CBI                     ...Appellant


                               Versus


Jayawant Keshav Gaurav & Ors.                       ...Respondents



449. This appeal has been preferred by the State against the final

judgment and order dated 2.8.2007 passed by Special Judge of the

Designated Court under the TADA in the Bombay Blast Case No.1

of 1993, by which the respondents/accused (A-82, A-90, A-102, A-

113) have been convicted for the offences punishable under various

provisions of TADA and other Acts, but have been acquitted of the

general charge of conspiracy under TADA.

      In view of the fact that each respondent being assigned

different acts, has been charged differently and has been awarded a

different sentence, it is desirable to deal with the case of each

respondent separately to certain extent.


450. Shri Mukul Gupta, learned senior counsel appearing for the

State, has submitted that all the four respondents, were officials of

the Customs Department. They had been warned by their superior



                                                                 275
                                                                Page 275
officers that arms and ammunition were going to be smuggled into

the country through the sea; and they were therefore, required to

take all possible preventive measures and to remain constantly

alert. Despite the said warnings, the respondents demanded higher

bribes from the smugglers for the purpose of permitting their

landings and transportation, and therefore, they ought to have been

convicted for the first charge of conspiracy as well.


451. Per contra, Ms. Farhana Shah, Shri Mushtaq Ahmad and Ms.

Afshani Pracha, learned counsel for the respondents, have

submitted that the respondents have already been convicted under

various Acts, and considering the participation of the individual

respondents in the said crimes, punishments have been awarded to

them, as deemed appropriate. Therefore, no further sentence is

required.


452. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


I.    Jayawant Keshav Gaurav (A-82)

453. The first respondent has been charged, in addition to the

main charge of conspiracy, for facilitating the transportation of

arms and ammunition by piloting two motor trucks laden with



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                                                              Page 276
arms, ammunition and explosives, in order to ensure safe passage

of the same, in a jeep belonging to the Customs Department,

bearing registration No. BLB 4352, from Gondghar Phata to

Kanghar, and for permitting the accused Uttam Shantaram Potdar

(A-30), to drive the aforesaid government jeep for the said purpose

on the intervening night between 9th/10th January, 1993. The said

acts amount to the abetment of Mohd. Dossa and his associates for

smuggling arms, ammunition and explosives, which were brought

into the country for the commission of terrorist acts, and hence,

abetment of the said attacks. Additionally, he has been charged for

facilitating the smuggling and transportation of arms, ammunition

and explosives by Tiger Memon (AA), on the 3 rd and 7th February,

1993. Thus, the charge is one under Section 3(3) TADA.

      He (A-82) has been convicted under Section 3(3) TADA and

has been awarded RI of 8 years alongwith a fine of Rs. 1 lakh,

and in default of payment of fine, to further undergo RI for 3 years.

He has filed Criminal Appeal No. 271 of 2008 against the said

order of conviction, even though he has served the sentence for a

period of 8 years, and has paid the fine.


454. The learned Designated Court, after appreciating the entire

evidence on record, came to the conclusion that the confessional



                                                                 277
                                                                Page 277
statement of Jayawant Keshav Gaurav (A-82) has revealed his

involvement in the Shekhadi landing, and in the transportation of

the smuggled contraband, alongwith various other co-accused,

particularly, Dawood Taklya (A-14), Uttam Shantaram Potdar (A-

30), Ranjit Kumar Singh Baleshwar Prasad (A-102), Sudhanwa

Sadashiv Talwadekar (A-113), Vijay Krishnaji Patil (A-116) and

Tiger Memon (AA) and has held as under:

      "Since all the said material is so self eloquent that
      same will need no dilation for coming to conclusion
      as stated aforesaid. Amongst other the same reveals
      that A-82 being participant in commission of offence
      regarding Dighi landing. A-82 being also recipient
      of bribe amount. A- 82 alongwith A-113 being
      present at Shekhadi coast when landing was to be
      effected hardly they had taken any steps for
      preventing same and on the contrary their
      conversation with Tiger Memon clearly reveals that
      instead of taking matter seriously they were
      interested in making fun of Government missionary
      to which they were party and were required to act
      diligently for protecting economy of Nation.
      However as observed earlier and taking into
      account act committed by A-82 who was of lower
      rank of officers of Customs Department of which
      higher officers were involved in conspiracy he can
      not be said to be guilty for offence of conspiracy for
      which charge at head 1st Iy is framed against him at
      the trial. Needless to add that same is apparent that
      there is paucity of evidence regarding knowledge of
      A-82 of contraband goods being arms, ammunition
      and explosives and purposes for which same was
      brought. So also he can not be said to be guilty for
      offence of conspiracy for serial blast as acts
      committed by him was much prior than even fixing
      of targets for serial blast by Tiger Memon. Such
      conclusion is further fortified by fact of A-82 having


                                                               278
                                                               Page 278
      not found to have committed any other act after said
      landing and excepting act of nabbing culprits which
      would never have been feasible in view of he himself
      having abetted acts committed by them."


455. The aforesaid findings by the learned Special Judge make it

crystal clear, that he (A-82) was guilty of facilitating such landings

and transportation as being a Customs Inspector, he was the

recipient of a bribe amount. He (A-82) had conversations with

Tiger Memon (AA) and had further allowed Uttam Potdar (A-30)

to drive a customs car. However, as he (A-82) was an officer of a

lower rank in the Customs Department, it was his superior officers

who were actually involved in the conspiracy. His involvement

was to the extent of the offence punishable under Section 3(3)

TADA, which includes conspiracy to a certain extent, as well as of

offences punishable under the Indian Penal Code; the Explosives

Act; the Explosives Substances Act; and the Arms Act etc. Thus,

despite the fact that he himself had been involved in abetting the

landing and transportation of contraband, he could not be held

guilty of the larger conspiracy. The appeal with respect to

Jayawant Gauruv (A-82) was hence, dismissed.




                                                                  279
                                                                 Page 279
II.   Mohd. Sultan Sayyad (A-90)

456. In addition to the main charge of conspiracy, he was also

charged for attending the meeting that had been held at Hotel

Persian Darbar on 6.1.1993, alongwith co-accused Ranjit Kumar

Singh Baleshwar Prasad (A-102) and Customs Superintendent

Lotle (PW-154). At the said meeting,         he (A-90) had allowed

Mohd. Dossa and his associates to carry on their smuggling

activities, and had further facilitated their landing at Dighi on

9.1.1993, which was within his territorial jurisdiction. He was

further charged for the same and also for permitting smuggling

activities of Tiger Memon (AA) and his associates on 2.2.1993.

After meeting Tiger Memon (AA) and his associates at Hotel Big

Splash on 2.2.1992, he had further facilitated the landings of arms,

ammunition and explosives at Shekhadi on 3.2.1993 and 7.2.1993.

      He has been convicted under Section 3(3) and has been

awarded a punishment of 7 years RI alongwith a fine of Rs.1 lakh,

and in default of payment of fine, to further undergo RI for 3 years.

He has already served the sentence and deposited the fine.


457. After appreciating the entire evidence on record, the learned

Special judge came to the conclusion that:




                                                                 280
                                                                Page 280
          "Truly speaking receipt of bribe amount for
      allowing the said operation considered from proper
      angle also connotes that the act committed by A-
      102, 90, 113 & 82 being primarily for receipt of
      bribe amount by misusing/abusing their official
      position would definitely fall out of sphere of the
      conspiracy for which the relevant operation was
      organized and effected by other co-conspirators for
      commission of terrorist act. The same is obvious as
      conspirators always join the conspiracy or become
      members of conspiracy due to being interested in
      either furthering the object of conspiracy or
      achieving the object of conspiracy. The payment of
      the money for commission of act which may have a
      semblance of furthering object of conspiracy will
      still not make the concerned liable for offence of
      conspiracy. The same is apparent as the act
      committed by them would be for the purposes of
      receiving the said payment and not mainly for
      furthering the object of conspiracy. It is true that
      their such acts as ruled earlier would amount to
      commission of offence of an abetment or assistance
      etc. for commission of terrorist act by other
      conspirators and they could be held liable for the
      same but still they cannot be said to be involved in
      the conspiracy. In view of the aforesaid, none of the
      A-102, 90, 113 & 82 can be said to be guilty for
      commission of offences of conspiracy for which the
      charge at head 1st ly is framed against them or even
      otherwise for any smaller conspiracy. However, by
      way of abundant caution it will necessary to record
      that aforesaid observations is limited to above
      stated accused from Customs dept., and the same is
      not in relation to A-112."


458. As the learned Special Judge has dealt with the said issue

elaborately and has placed the respondents at par, we do not see

any cogent reason to take a view contrary to the view that has been




                                                               281
                                                              Page 281
taken in the case of the co-accused Jayawant Keshav Gaurav (A-

82).


III.   Ranjitkumar Singh Baleshwar Prasad (A-102)

459. In addition to the general charge of conspiracy, he (A-102)

has been charged similarly to accused (A-90), for attending the

meeting that was held on 6.1.1993 at Hotel Persian Darbar

alongwith the other accused, and for thereafter allowing the

smugglers to continue their smuggling activities within their

territorial jurisdiction in lieu of payment of Rs.7.80 lakhs per

landing. In furtherance thereof, the contraband, including arms and

ammunition were smuggled into India, on 9.1.1993 within the

limits of their territorial jurisdiction. He was further charged with

facilitating the transportation of arms, ammunition and explosives

on 3.2.1993 and 7.2.1993. Thus, he has been convicted under

Section 3(3) TADA and has been awarded the punishment of

imprisonment for 9 years, alongwith a fine of Rs. 3 lakhs, and in

default of payment of fine, to further undergo RI for a period of 4

years. The respondent (A-102) has presently served out more than

five years of the punishment awarded to him and has also

deposited the fine.




                                                                 282
                                                                Page 282
460. After considering the entire evidence on record, the learned

Special Judge came to the conclusion as under:

      "265) Without making any unnecessary dilation
      about the self-eloquent evidence about which the
      relevant excerpts are cited earlier it can be safely
      said that considering the act committed by these 4
      accused as reflected from same i.e. participation of
      A-102 & 90 in Persian Darbar meeting and
      negotiating with smugglers about the bribe amount
      to be paid and granting them a charter to smuggle
      the contraband articles or in fact any thing, the act
      of A-82 inspite of being present on the spot of
      interception of goods by police, instead of seizing
      the same allowing the same to be transported
      further and in most clandestine manner piloting the
      convoy carrying the contraband goods on its way to
      destination uptil a particular spot, advising the
      policemen in clandestine manner etc., and of A-II3
      though not being directly connected with said
      landing readily & willingly accepting his share of
      booty from the bribe amount received for the said
      landing and thereby denoting his implied
      connivance for the said operation seized earlier; not
      revealed otherwise in view of himself being not
      directly involvement in commission of act and
      considering the further acts committed byA-90, 82
      and 113 regarding Shekadi landing and so also to
      some extent by--A-l02 clearly reveals themselves
      having committed the offence u/s. 3(3) of TADA for
      which each of them has been charged with at this
      trial.
      266) However, the careful consideration of said
      evidence and even after taking into consideration
      the fact that A-l02 and A-90 had participated in
      Persian Darbar meeting; still the evidence having
      fall short of themselves having connived with the
      conspirators in this case for commission of said act
      for the purposes of conspiracy, it will be difficult to
      hold them or an of them liable for offence of
      conspiracy for which each of them has been charged
      with on the basis of evidence surfaced regarding


                                                                283
                                                                Page 283
Dighi landing episode and so also about Shekadi
landing episode about which the discussion is made
later on.
267) Truly speaking receipt of bribe amount for
allowing the said operation considered from proper
angle also connotes that the act committed by the A-
102, 90, 113 & 82 being primarily for receipt of
bribe amount by misusing/abusing their official
position would definitely fallout of sphere of the
conspiracy for which the relevant operation was
organized and effected by other co-accused. The
same is obvious as conspirators always join the
conspiracy or become members of conspiracy due to
being interested in either furthering the object of
conspiracy or achieving the object of conspiracy.
The payment of the money for commission of act
which may have a semblance of furthering object of
conspiracy will still not make the concerned liable
for offence of conspiracy. The same is apparent as
the act committed by them would be for the
purposes of receiving the said payment and not
mainly for furthering the object of conspiracy. It is
true that their such acts as ruled earlier would
amount to commission of offence of an abetment or
assistance et for commission of terrorist act by other
conspirators and they could be held liable for the
same but still they cannot be said to be involved in
the conspiracy. In view of the aforesaid, none of the
A-102, 90, 113 & 82 can be said to be guilty for
commission of offences of conspiracy for which the
charge at head 1st ly is framed against them or even
otherwise for any smaller conspiracy. However, by
way of abundant caution it will be necessary to
record that aforesaid observations is limited to
above stated 4 accused from Customs dept., and the
same is not in relation to A-102 i.e. Addl. Collector
of Customs whose case clearly appears to be
different i.e. his connection with Tiger Memon being
spelt from evidence revealed during Shekadi
landing, there being hardly any evidence of himself
having received...."




                                                         284
                                                         Page 284
461. In view of the opinion expressed hereinabove, as regards the

other accused, we are not able to accept the appeal filed by the

State in respect of Ranjitkumar Singh Baleshwar Prasad (A-102)

either.



IV.       Sudhanwa Sadashiv Talwadekar (A-113)

462. He has been charged, in addition to the first charge, for

knowingly facilitating the smuggling of arms, ammunition and

explosives by Dawood Ibrahim, Tiger Memon (AA) and their

associates, for the purpose of committing terrorist activities by way

of their non-interference in lieu of payment of illegal gratification

made to them, despite the fact that he was in possession of specific

information and had knowledge of the fact that arms, ammunition

and explosives were likely to be smuggled into the country for

facilitating terrorist activities.   He has been convicted under

Section 3(3) TADA and was awarded the punishment of

imprisonment for 8 years RI, alongwith a fine of Rs. 2 lakhs, and

in default of payment of fine, to further undergo RI for 3 years.


463. The learned Special Judge after appreciating the entire

evidence on record came to the conclusion that:

          "Thus considering material in the confession of A-
          113 and aforesaid co-accused the same leads to the


                                                                    285
                                                                    Page 285
      conclusion of A -113 also being involved in Shekadi
      landing operation as denoted by said material and
      as such having committed offence u/s. 3(3) of TADA
      for which he is charged at head 2 nd ly clause 'b'.
      Since case of A-113 is more so over akin regarding
      his liability to Shekhadi landing with that of A-82 as
      both of them were at Shekhadi coast instead of
      again repeating said discussion it can be safely said
      that for same reason of which A-82 has been found
      guilty for commission of offence under Section 3(3)
      of TADA Act A-113 will be required to be held
      guilty. Needless to add that for same reason as
      stated in said discussion evidence pertaining to
      receipt of bribe amount and/or recovery of same
      during course of investigation and as tabulated
      about is not threadbare discussed. Thus on basis of
      all material surfaced at trial A-Il3 will be required
      to be held guilty for commission of offence u/sec.
      3(3) of TADA Act. Needless to add that similarly as
      that of A-82 or even A-102 he can not be held guilty
      for offence of conspiracy for which he is charged
      with."

                                        (Emphasis added)


464. This accused (A-113) has already served 6 ½ years and has

deposited the fine. Being at par with the other co-accused, in this

present appeal, no further interference is required.


465. We are fully aware of our limitation to interfere with an

order against acquittal. In exceptional cases where there are

compelling circumstances and the judgment under appeal is found

to be perverse, the appellate court can interfere with the order of

acquittal. The appellate court should bear in mind the presumption



                                                               286
                                                               Page 286
of innocence of the accused and further that the trial Court's

acquittal bolsters the presumption of his innocence. Interference in

a routine manner where the other view is possible should be

avoided, unless there are good reasons for interference. (Vide:

State of Rajasthan v. Darshan Singh @ Darshan Lal, AIR 2012

SC 1973).

      In view of the above, we do not see any cogent reason to

interfere with the order of the Designated Court so far as the

acquittal of the respondents on a particular charge is concerned.

The appeal lacks merit and is liable to be dismissed.




                                                                287
                                                               Page 287
           CRIMINAL APPEAL NO. 1439 OF 2007

Khalil Ahmed Sayed Ali Nazir                          ...Appellant

                              Versus

State of Maharashtra Through CBI                    ... Respondent

                                AND

            CRIMINAL APPEAL NO. 1035 of 2012


State of Maharashtra                                  ...Appellant

                              Versus

Khalil Ahmed Sayeed Ali Nasir                        ... Respondent



Criminal Appeal No. 1439 of 2007

466. This appeal has been preferred against the judgments and

orders dated 18.9.2006 and 19.7.2007, passed by Special Judge of

the Designated Court under the TADA in the Bombay Blast Case

No.1 of 1993. The appellant (A-42) was guilty for the offence of

conspiracy to commit terrorist acts i.e. part of charge from charge

firstly, punishable under Section 3(3) TADA, and on the said

count, the appellant was convicted and sentenced to suffer rigorous

imprisonment for 10 years, and was ordered to pay a fine of

Rs.50,000/-, and in default of payment of fine, was ordered to

suffer further RI for a period of one year. The appellant was also



                                                               288
                                                              Page 288
found guilty for the offence punishable under Section 3(3) TADA,

for the commission of such acts as were found to be proved from

charge at head secondly, and he was convicted and sentenced to

suffer RI for 10 years and was ordered to pay a fine of Rs.25,000/-

and in default of payment of fine, was ordered to suffer further RI

for a period of six months. He was further convicted and sentenced

for 10 years R.I. with fine of Rs.50,000/- under Section 6 TADA;

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

B)(a) of the Arms Act, but no separate sentence for the same was

awarded. However, all the sentences have been directed to run

concurrently.


467. Facts and circumstances giving rise to this appeal are :

A.    In addition to the main charge of conspiracy, the appellant

was charged for his involvement in the Shekhadi landings on

3.2.1993 and 9.2.1993 including the transportation of smuggled

arms, ammunition and explosives from Shekhadi to Wangni Tower

and further during the period of February-March 1993 for keeping

in his possession, two 9 mm pistols, 3 magazines and 25 rounds

without a valid licence, which were recovered on 26.3.1993 from

his residence. In view of his possession of the aforesaid arms and

ammunition, he was further charged under Section 6 TADA.



                                                                289
                                                                Page 289
B.    After conclusion of the trial, the learned Designated Court

held the appellant guilty and awarded punishment as referred to

hereinabove.

      Hence, this appeal.


468. Mr. Mushtaq Ahmad, learned counsel appearing for the

appellant, has submitted that the court below has over emphasized

the evidence of recovery which is not worth reliance for the reason

that the same did not bear the signature of the appellant/accused

(A-42). Moreover, the panch witness was a stock witness, and

therefore, his evidence is not credible. It was also submitted that

the confession of the appellant (A-42) was not voluntary and that

the same was obtained by way of coercion and that the entire case

is concocted. Therefore, the appeal deserves to be allowed.


469. Mr. Mukul Gupta, learned senior counsel appearing for the

State has opposed the appeal, submitting that the participation of

the appellant (A-42) in the landing has been corroborated by the

confessional statements of various co-accused; and that the

appellant (A-42) was well acquainted with persons indulging in

regular smuggling activities. Furthermore, it was also submitted

that the said confessional statement was recorded strictly in

accordance with the law, and therefore the same must be relied


                                                               290
                                                              Page 290
upon. Moreover, the recovery was made on the basis of the

disclosure statement of the appellant, and the fact that the same did

not bear his signature would not make it inadmissible. Thus, the

appeal lacks merit and is liable to be dismissed.


470. We have considered rival submissions made by learned

counsel for the parties, perused the evidence on record and also the

impugned judgment.


471. Evidence against the appellant:

(a)     His own confessional statement

(b)     Confessional statement of Muzammil Umar Kadri (A-25)

(c)     Confessional statement of Dawood @Dawood Taklya
        Mohammed Phanse @Phanasmiyan (A-14)

(d)   Confessional statement of Sajjad Alam @Iqbal Abdul
      Hakim Nazir (A-61)
(e) Confessional statement of Tulsiram Dhondu Surve (A-62)

(f) Confessional statement of Rashid Umar Alware (A-27)

(g)   Depositions of Vijay Govind More (PW-137), Laxman Loku
      Karkare (PW-45), Hari Baburao Pawar (PW-596)


Confessional statement of appellant (A-42):

472. The appellant (A-42) in his confessional statement stated

that he was an agriculturist and owned land in Medandi and that he

indulged in agricultural and smuggling activities. He (A-42) used

to smuggle for Tiger Memon (AA). He had worked as a welder in


                                                                 291
                                                                Page 291
a defence workshop in Kuwait during 1976-1987. Thereafter, he

had worked in Saudi Arabia in the year 1991 as a caterer in a hotel.

Thereafter, he started his own workshop.          He (A-42) had

participated in the landing and transportation of smuggled goods,

particularly, silver bricks etc. which had taken place on 3.2.1993,

alongwith Dawood Taklya (A-14) and Abdul Salam Hishamuddin

Nazir who belonged to his village.       Appellant (A-42) gave a

complete description of how the goods were smuggled and deposed

that they reached Shekhadi at about 11.00 P.M. The material had

already landed before they reached, and thereafter, the said

material was loaded into a truck. Tiger Memon (AA) was also

present. The said material was filled into 196 boxes and these

boxes were then sealed by wrapping them up in Bardan (Jute bags).

The appellant (A-42) sat with the driver while transporting the said

goods and they were hence, brought into Bombay. The appellant

(A-42) stated that it was only after returning from Shekhadi and

after the transportation of the smuggled goods was complete, that

he was informed by Hasan and Azim that the landed material was

not silver, but arms and ammunition, hand grenades, black soap

and cartridges. He further admitted that he was given Rs.5,000/-

by Dawood Taklya (A-14) as a reward for participating in the

landing. Tiger Memon (AA) had threatened everybody that in the


                                                                292
                                                               Page 292
event that anyone disclosed details about the said landing to any

other person, his family would be eliminated.     He further stated

that on 22.3.1993, Dawood Taklya (A-14) had come to his house

and had given him a bag for safe-keeping, stating that he would

collect the same later, as the police was searching for him. He (A-

14) informed the appellant (A-42) that the bag contained 2

revolvers and also some other material. Dawood Taklya (A-14)

was arrested by the police, and during his interrogation, he

disclosed to the police that 2 revolvers were lying with the

appellant (A-42). Thus, the police came to his house, and the

appellant (A-42) then took out the revolvers from a place in front

of his house where he had hidden the same, and handed them over

to the police.


Confessional statement of Muzamil Umar Kadri (A-25):

473. He disclosed the participation of the appellant (A-42) in the

Shekhadi landing on 3rd February. He also stated that in January

1993, Rahim Laundrywala alongwith Shafi had come to the house

of the appellant Khalil (A-42) by jeep, and had called him there.

Shafi had told him to keep certain goods at his house. After being

asked by the co-accused, Shafi informed him that the goods were

actually 16 rifles and 32 cassettes. When he expressed his inability



                                                                293
                                                               Page 293
to keep them, he was threatened with dire consequences and

therefore, he kept the said goods in his house. Thus, A-25 has

stated that in January 1993, the witness was forced to keep the

arms and ammunition upon coercion by Rahim Laundrywala and

Shafi. At the said time, the appellant (A-42) was also present with

them and had also participated in the landing at Shekhadi.



Confessional statement of Dawood Taklya (A-14):

474. He supported the case of the prosecution regarding the

participation of the appellant (A-42) in the landing at Shekhadi.

Before the landing took place, the appellant (A-42) had negotiated

with the Mhasla Custom Inspector, Kadam and the said Custom

Officer had told the appellant (A-42) that the goods must be

dispatched after 2.00 A.M., and accordingly, the said landing had

taken place. This accused (A-14) has stated that after participating

in the landing, he returned to his home alongwith the appellant (A-

42), and others in the rickshaw of Iqbal and that this accused (A-

14) had given to the appellant (A-42) a sum of Rs. 50,000/- which

was to be paid at the Mhasla Police Station, which the appellant

(A-42) confirmed was paid the next day.        The witness further

deposed that the appellant (A-42) was also paid a sum of

Rs.2,000/- for participating in the landing.


                                                                294
                                                               Page 294
Confessional statement made by Sujjad Alam (A-61):

475. He stated that the appellant (A-42) had participated in the

landings at Shekhadi on several occasions and that the witness was

paid Rs.2,000/- per landing through the appellant Khalil (A-42).

He further stated that he had seen the appellant (A-42), and the

other co-accused (Tiger's men), taking out goods in gunny bags

from a jeep and bringing the same into a room in the house of the

appellant (A-42). At the said time, the son of accused Dawood

Sarfaraz (A-55), was also present. The accused (A-61) had also

seen the appellant removing 16 rifles and 32 cassettes (Magazines),

from the bags and later on, the accused had seen the appellant (A-

42) sitting in the jeep and closing the secret cavities in the jeep.

The said jeep was then driven away by Shafi. On 3.2.1993, the

accused (A-14) was told by the appellant (A-42) that his maternal

uncle had told him that there was a landing of Tiger's goods that

night and therefore, the two of them went for the said landing

alongwith several other persons, and participated in the landing and

transportation of the smuggled goods. It was only after the work,

including the transportation of the said goods was over, that Taklya

(A-14) had gone alongwith the appellant (A-42) to his house.

      On the afternoon of 9.2.1993, Dawood Taklya (A-14) met

the witness at Mhasla S.T. Stop and asked him to come to


                                                                295
                                                               Page 295
Mhedandi. He took him to Mhedandi, from where he picked up

the appellant (A-42) from his house, and then they reached

Muzammail's residence.      There Dawood Taklya (A-14) told

Muzammil (A-25) to hand over to him, 3 rifles and 6 cassettes.

The said armaments were handed over by Muzammil (A-25) while

wrapped in a gunny bag, and after taking the same from him, all of

them came to Lonery Phata on the highway. After a while, Tiger

Memon (AA) also arrived there and they shifted the bag containing

rifles and ammunition to his car. On the said day, in the evening,

Khalil (A-42) came to him (A-14) and told him that they that had

to go for the landing in the evening, and the witness has given a

full description of their participation in the said landing on 9 th

February at Shekhadi.


Confessional statement of Tulshiram Dhondu Surve (A-62):

476. He was an employee at the Wangni Tower where he was

working as a watchman alongwith co-accused Harishchandra

Laxman Surve and labourer Vijay Govind More. They were paid

to let the smugglers keep contraband items in Wangni Tower.

During the loading, at the relevant time, Sarfaraz Phanse (A-55)

and Khalil Nazir (A-42) were keeping watch while on a motor

cycle. The goods were unloaded, repacked and taken away. On



                                                              296
                                                              Page 296
being asked, Dawood Taklya told him that the smuggled goods

were not silver bricks, but were black soap and guns. He was

warned not to disclose this factum of keeping smuggled goods in

the Wangni Tower to anyone. Thereafter, he stated facts regarding

the second landing on 2.2.1993 and also as regards helping the

smugglers, wherein the appellant (A-42) was also present

alongwith Tiger Memon and his associates, and they were fully

armed with guns and pistols. The appellant (A-42) was keeping

watch.


Confessional statement of Rashid Umar Alware (A-27):

477. He supported the case of the prosecution regarding the

participation of the appellant (A-42) to the extent that he was the

owner of the truck in which the smuggled goods were brought from

Shekhadi to Wangni Tower, and then to Bombay. According to

him, the goods were taken to Wangni Tower and after unloading a

part of the said goods, he was asked to wait outside.          The

remaining goods were then unloaded and the same were kept in

one pit dug into the land. At the time of keeping the goods in the

pit, the accused was taken away so that he could not see what was

being put there. A person, whom this witness does not know, then

gave him Rs. 13,000/- for the said transportation work and assured



                                                               297
                                                              Page 297
him that the balance amount would be paid after two days. After

two days, a balance amount of Rs.7,000/- was paid to him by the

appellant (A-42).


Other evidence:


478. The prosecution's version of events was further supported by

Vijay Govind More (PW-137) and he also identified this

appellant (A-42). The recovery of pistols has been reported from

him, which has also been duly supported by Laxman Loku

Karkare (PW-45).


479. Laxman Loku Karkare (PW-45), panch witness, in his

examination-in-chief stated that on 26.3.1993 he was in village

Mhedandi and was called by P.I. Pawar (PW-596) to stand as

panch witness. Pawar (PW-596) brought a person from the police

van who disclosed his name to be Khalil Ahmed Sayed Ali Nazir

(A-42) to the witness. Khalil (A-42) led the police party and the

panchas to his house. At his house, in a cupboard in the sitting

room, the police found two pistols, 34 rounds wrapped up in

newspapers, and 2 small magazines.




                                                             298
                                                            Page 298
480. Hari     Baburao       Pawar    (PW-596),     Police     Inspector,

supported the case of the prosecution and stated that on 26.3.1993,

he had gone to the village of Mhedandi and had arrested the

appellant (A-42) and also Muzammil Umar Kadri (A-25).

Thereafter, the appellant (A-42) had showed the police party and

the panch witnesses his house, and there they had made a recovery

of 2 foreign pistols, 2 empty magazines and 34 cartridges from a

cupboard in the sitting room. He had prepared a panchnama and

had obtained the signatures of the Panchas on the same. (Ext.162).


481.    The signature of the accused is not required on the seizure

memo. In State of W.B. v. Kailash Chandra Pandey , (2004) 12

SCC 29, this court held :

       "10.... The first reason given by learned Single
       Judge was that no signature of the accused was
       taken on the seizure list. It has been stated by the
       prosecution witnesses i.e. by the investigating
       officers that the accused refused to sign on the
       seizure list. No accused can be forced to put his
       signature and the prosecution cannot force him
       to append his signature on the seizure memo if he
       refused to sign. Therefore, just because the
       accused did not append the signature on the
       seizure memo that cannot be a ground to
       improbabilise the prosecution story."

482.       Similarly, in State of Rajasthan v. Teja Ram & Ors. ,

(1999) 3 SCC 507, this Court held as under:



                                                                   299
                                                                   Page 299
"Learned counsel in this context invited our
attention to one step which PW 21 (investigating
officer) had adopted while preparing the seizure-
memos Ex. P-3 and Ex. P-4. He obtained the
signature of the accused concerned in both the
seizure-memos. According to the learned
counsel, the aforesaid action of the investigating
officer was illegal and it has vitiated the seizure.
He invited our attention to Section 162(1) of the
Code which prohibits collecting of signature of
the person whose statement was reduced to
writing during interrogation.....
No doubt the aforesaid prohibition is in
peremptory terms. It is more a direction to the
investigating officer than to the court because the
policy underlying the rule is to keep witnesses
free to testify in court unhampered by anything
which the police claim to have elicited from
them. (Tahsildar Singh v. State of U.P., AIR
1959 SC 1012; and Razik Ram v. Jaswant Singh
Chouhan, AIR 1975 SC 667). But if any
investigating officer, ignorant of the said
provision, secures the signature of the person
concerned in the statement, it does not mean that
the witness's testimony in the court would thereby
become contaminated or vitiated. The court will
only reassure the witness that he is not bound by
such statement albeit his signature finding a
place thereon.
       That apart, the prohibition contained in
sub-section (1) of Section 162 is not applicable to
any proceedings made as per Section 27 of the
Evidence Act, 1872....

The resultant position is that the investigating
officer is not obliged to obtain the signature of an
accused in any statement attributed to him while
preparing seizure-memo for the recovery of any
article covered by Section 27 of the Evidence Act.
But if any signature has been obtained by an
investigating officer, there is nothing wrong or
illegal about it.....".


                                                       300
                                                       Page 300
483. The submission made by Shri Mushtaq Ahmad that the

evidence of recovery cannot be relied upon for the reason that the

same did not bear the signature of the appellant/accused (A-42), is

not worthy of being accepted [Vide: State of Rajasthan v. Teja

Ram & Ors., (supra); and Prasad Ramakant Khade v. State of

Maharashtra, (1999) 8 SCC 493 (para 8)]


484. After appreciating the evidence on record, the learned

Designated Court came to the conclusion that the confession of the

appellant (A-42) revealed that on 3.02.1993, Dawood Taklya (A-

14) had informed him that a landing would take place in the

evening, and thereafter, the appellant (A-42), Nazir (AA) and

Dawood Taklya (A-14) had gone to Shekhadi Coast. Thereafter,

the appellant (A-42) had gone to the village of Borli to bring back

men and a truck for the landing, and he had returned to the coast in

the truck of Rashid Umar Kadri (A-27) with A-27, Sajjad Alam @

Iqbal Abdul Hakim Nazir (A-61), Bashir Ahmed Usman Gani

Khairulla (A-13), Sharif Khan Abbas Adhikari (A-60), Muzammil

Umar Kadri (A-25) and Azim Pardeshi at midnight. The landed

goods were taken to Wangni Tower. At the tower, the same were

loaded into tempos and jeeps, and the appellant (A-42) sat by the

side of the driver. The contraband items were then taken to


                                                                301
                                                               Page 301
Bombay, and the appellant (A-42) was told by Hasan and Azim

that said goods were not silver, but rifles, handgrenades, black soap

and cartridges. On 22.03.1993, Dawood (A-14) came to house of

the appellant (A-42) and gave to him, one bag telling him that it

contained 2 revolvers. Dawood (A-14) disclosed to the police that

he kept the said revolvers with the appellant (A-42), and the same

were recovered from the appellant (A-42).

      Therefore, the learned Designated Court held that the

aforesaid evidence lead to the inescapable conclusion that the

appellant (A-42) was involved in the Shekhadi landing operations

and had committed offences punishable under sections as

mentioned hereinabove. Having regard to the fact that Dawood @

Dawood Taklya (A-14) had chosen the appellant for the purpose of

keeping 2 revolvers with him and the fact that the appellant (A-42)

had readily kept the same, reveals that he was a man in which the

prime accused had confidence with respect to the conspiracy.

However, since he had committed the aforementioned relevant acts

much prior to the date of the bomb blasts and had not participated

in any meetings, nor was he connected with the same in any

manner, and the fact that the acts were committed by him at a time

when even the targets of the Bomb blasts had not been fixed, he




                                                                302
                                                                Page 302
could not be held guilty for the offence of larger conspiracy i.e.

first charge.


485. We find no cogent reason to interfere with the decision of

the Designated Court. The appeal is accordingly dismissed.


Criminal Appeal No. 1035 of 2012

486. The respondent in this appeal stood acquitted of the charge

of conspiracy. Hence, the State preferred this appeal.


487. Shri Mukul Gupta, learned senior counsel appearing for the

appellant-State has submitted that the evidence against him has

been his own confession, wherein he had admitted his role in the

facilitation of the landing and transportation of contraband goods

from Shekhadi, alongwith Tiger Memon (AA) and his associates.

The said contraband was transported by Tiger Memon (AA) into

Bombay, and further, the aforesaid arms were recovered from his

residence. The confessional statement of the respondent has been

corroborated by the confessional statements of Dawood Taklya (A-

14), Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), Muzammil

Umar Kadri (A-25), Rashid Umar Alware (A-27), Sajjad Alam @

Iqbal Abdul Hakim Nazire (A-61) and Tulsiram Dhondu Surve

(A-62).    The deposition of Prakash D. Pawar (PW-185) who


                                                              303
                                                             Page 303
recorded his confession, Harish Chandra Surve (PW-108), an

employee of the Wangni Tower, Vijay Govind More (PW-137), an

employee of the Wangni Tower, Waman Kulkarni (PW-662) and

Hari Pawar (PW-596) also corroborated his confession. Hence, the

respondent ought to have been convicted for the charge of

conspiracy.


488. Shri Mushtaq Ahmad, learned counsel appearing for the

respondent has opposed the appeal contending that the learned

Designated Court has already considered the matter and, following

the parameters already laid down by this Court, reached the

conclusion that the respondent was not guilty of the first charge.

The facts of the case do not warrant interference by this court.

Thus, the appeal is liable to be dismissed.


489. The Designated Court after appreciating the entire evidence

on record, came to a conclusion as under:

      "Thus considering material in the confession of
      A-42 and aforesaid co-accused the same leads to
      the conclusion of A-42 also being involved in
      Shekadi landing operation as denoted by said
      material and as such having committed offence
      u/s 3(3) of TADA for which he is charged at head
      2nd ly clause `a'. Similarly the same evidence
      also establishes his involvement in commission of
      offences for which charge was framed at head 3rd
      ly and 4th ly on count of himself being in
      possession       of      contraband     material


                                                              304
                                                             Page 304
      unauthorisedly i.e. commission of offence under
      Arms Act and u/s 6 of TADA for which he was
      charged with. Similarly having regard to the fact
      that A-14 has chosen him for keeping the 2
      revolvers with him and himself having readily
      kept the same considered in proper perspective
      also reveals that role played by A-42 was not
      restricted for Shekadi landing and transportation
      operation but he was a man of confidence of the
      prime accused involved in conspiracy and
      himself was also involved in conspiracy.
      However, himself having committed relevant acts
      much prior to Serial Bomb blasts i.e. in the
      month of February 1993 and there being paucity
      of evidence to reveal his connection with the
      same in any manner, himself having not been to
      Bombay, nor participated in conspiratorial
      meeting, the acts committed by him were
      committed at the juncture when even the targets
      for Serial bomb blast were not fixed lead to the
      conclusion of himself being party to criminal
      conspiracy to commit terrorist act punishable u/s
      3 (3) of TADA and himself being not party to the
      entire larger conspiracy for which the charge at
      head 1st ly was framed against him."


490. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.

491. As the respondent has been awarded sufficient punishment

under different heads of Section 3(3) and 6 TADA, and the said

offences themselves are a part of the conspiracy, and the learned

Designated Court has divided the conspiracy into various

components, considering the present case, where the accused were

either involved in participating in various conspiratorial meetings,



                                                               305
                                                               Page 305
receiving training in the handling of arms, their active participation

in the throwing of bombs or parking of vehicles fitted with

explosives, or where the accused persons participated only in the

landing and transportation of contraband, but were not aware of the

contents of the said contraband, and further, another category

where the accused had knowledge of the contents of the

contraband, but did not participate either in the conspiratorial

meetings held, or in any actual incident of any terrorist activity,

and has awarded different punishments accordingly, we do not see

any cogent reason to allow the said appeal. The appeal is hence,

dismissed.




                                                                 306
                                                                 Page 306
            CRIMINAL APPEAL NO. 203 OF 2008


Shahnawaz Hajwani & Ors.                        ...Appellants

                                Versus

State of Maharashtra                            ... Respondent

                                WITH

           CRIMINAL APPEAL NO. 396 OF 2011

State of Maharashtra thr. CBI                   ....Appellant

                                Versus

Shahjahan Dadamiya Hajwane @ Ors.             ....Respondents

                                 AND

           CRIMINAL APPEAL NO. 414 OF 2011


State of Maharashtra thr. CBI                   ....Appellant

                                Versus

Issaq Mohd. Hajwane                           ....Respondent



Criminal Appeal No. 203 of 2008

492. This appeal has been preferred by Shahnawaz Hajwani (A-

106), Sikkandar Issaq Hajwane (A-111) and Issaq Mohammed

Hajwane (A-79), against the judgment and order dated 25.5.2007,

passed by Special Judge of the Designated Court under the TADA




                                                           307
                                                          Page 307
for Bombay Blast, Greater Bombay, in the Bombay Blast Case No.

1/1993.

     The first and second appellant (A-106 and A-111) have been

convicted under Section 3(3) TADA, and awarded the punishment

of 5 years RI, alongwith a fine of Rs.10,000/-,and in default of

payment of fine, to further suffer RI for two months.

     The third appellant (A-79) has been convicted partly for charge

first of conspiracy under Section 3(3) TADA, and has been awarded

7 years RI, alongwith a fine of Rs.25,000/-, and in default of

payment of fine, to further suffer RI for 6 months. Under Section

3(3) TADA, he has been awarded 5 years RI, and a fine of

Rs.10,000/-, in default of payment of fine, to further suffer RI for

two months. Under Section 6 TADA, he has been awarded 7 years

RI, and a fine of Rs.25,000/-, in default of payment of fine, to

further suffer RI for six months. He had been convicted for charge at

head fourthly, but no separate sentence has been awarded under

Sections 3 and 7 read with Sections 25(1-A) (1-B)(a) of the Arms

Act. He (A-79) had further been convicted under Section 201 IPC

and awarded a sentence of 5 years and a fine of Rs.10,000/-, in

default of payment of fine to suffer further RI of 2 months.




                                                               308
                                                               Page 308
493. In addition to the general charage of conspiracy, all the three

appellants had been charged for their overt acts in connection with

the Sandheri training episode.       Appellant No. 1 (A-106) and

appellant No.2 (A-111) had been charged only for participating in

the training with arms and ammunition with Tiger Memon (AA) at

Sandheri Hillocks on 8.3.1993, while appellant No.3 (A-79) had

also been charged under various heads of having possession of 13

handgrenades unauthorisedly between 1.4.1993 till 3.4.1993, with

the intent to aid terrorist activities. Fourthly, under Sections 3 and 7

read with Section 25 (1-A)(1-B)(a) of the Arms Act, which he had

dumped in the sea coast abutting Gandharwadi village which had

been recovered at his instance between 1.4.1993and 3.4.1993.

      Hence, this appeal.


494. Shri Sushil Karanjekar, learned counsel appearing for the

appellants, has submitted that impugned judgment and order of

conviction is not sustainable for the reason that recovery memo

cannot be relied upon and the recovery had not been made in

accordance with law. The learned Special Judge erred in recording

the findings that the appellants had participated in the training for

handling of arms at Sandheri on 8th January, 1993. In view of the

fact that the appellants have not participated in acquiring any



                                                                   309
                                                                   Page 309
knowledge in handling of arms is meaningless and, therefore, their

participation in the training cannot be relied upon. In view of

specific findings recorded by the learned Designated Court that the

appellants were not even known the contents of the contraband,

their conviction under any provision of TADA is not sustainable.

Therefore, the appeal deserves to be allowed.


495. On the contrary, Shri Mukul Gupta, learned senior counsel

appearing for the respondent, has vehemently opposed the appeal,

contending that the findings of facts recorded by the learned

Special Judge do not warrant any interference, as the same are

opposed on appreciation of evidence, and the same cannot be held

to be perverse. Recovery had been made in accordance with law.

The participation of the appellants in the training of arms at

Sandheri Hillock on the relevant date is proved by cogent evidence.

The appeal lacks merit and is liable to be dismissed.


496. We have heard learned counsel for the parties and perused

the records.


497. Evidence against the appellants:

(a)   Deposition of Mahadeo Yeshwant Jadav (PW-103)

(b)   Deposition of Ashok Vasant Vichare (PW-104)



                                                               310
                                                              Page 310
(c)    Deposition of Harishchandra Keshav Pawar (PW-105)

(d)    Deposition of Rajaram Ramchandra Kadam (PW-106)

(e)    Deposition of Namdev Pundlik Mahajan, A.P.I. (PW-587)

(f)    Deposition of Chandrakant Sambhaji Pawaskar (PW-609)



Deposition of Harishchandra Keshav Pawar (PW-105)

498.   He is a resident of the village Sandheri. He deposed that on

8.3.1993 just after Holi, he heard gunshot noises made by several

persons at about 9.00 a.m. when he was sitting at State Transport

bus stand of his village Sandheri. He (PW-105) went alongwith his

friends Shahnawaz Hajwani, Juber Hajwani, Inayat Hajwani and

Ashfaq Ramzani towards the site known as Chinchecha Mal on the

hillock towards the western side of Sandheri which is 1 K.M. from

the said bus stand. He (PW-105) saw many cardboard targets fixed

at different places around the hillock. Two-three guns were being

used for firing. The guns were of arms length. He (PW-105) knew

three persons out of 8-10 persons present there. They were Issaq

Hajwane (A-79), Hamid Dafedar (now dead) and Sharif Parkar (A-

17). He (PW-105) was present at the said place for a short while as

Hamid Dafedar rushed to them and threatened them that if they did

not leave they would be killed. Hence, the witness (PW-105) and




                                                               311
                                                              Page 311
his friends ran away. He identified the said three named persons in

the court including Issaq Hajwane (A-79).


Deposition of Rajaram Ramchandra Kadam (PW-106)

499. He (PW-106) is a resident of village Sandheri aged 71 years.

He deposed that just after Holi on 8.3.1993 he (PW-106) was

present at village Sandheri and after hearing the gunshots he went

towards Chinchecha Mal, a place nearby Gardav Wadi of village

Sandheri at about 9.30 to 10.00 a.m. After reaching there he (PW-

106) saw cardboard targets were fixed near the hillock which were

of square shape and approximately 2 ½ feet in size. Some persons

were sitting at the said Mal, they got up and asked him to leave the

said place immediately otherwise he (PW-106) would be shot dead.

The persons who had threatened him were not known to him.

However, five persons amongst the persons who were sitting there,

were residents of his village and they included Issaq Hajwane (A-

79), Shahnawaz Hajwani (A-106), Sikkandar Issaq Hajwane (A-

111), Hamid Dafedar, and Sharif Parkar. The said witness (PW-

106) identified all the five persons in court.




                                                                312
                                                               Page 312
Deposition of Ashok Vasant Vichare (PW-104)

500. He (PW-104) was a resident of village Falsap, 3 K.ms. away

from Sandheri and deposed that he (PW-104) knew the appellant

(A-79) for a long time and on 1.4.1993, he was called to Goregaon

Police Station by a Constable who told him that he must be the

panch witness to the disclosure statement of Issaq Hajwane (A-79)

who was in their custody. Thereafter, the appellant (A-79) made a

disclosure statement, according to which, the police officials, the

appellant (A-79) and both the panch witnesses reached near

Sandheri Jetty when the appellant (A-79) asked the driver to stop

the vehicle. They got off the vehicle and the appellant (A-79) took

a lead and all other persons followed him and reached Sandheri

Jetty on foot. The appellant (A-79) took a stone and threw the

same at a particular spot in the water and told them that they had

thrown handgrenades and empty cartridges within the vicinity of

the place at which he had thrown the stone. Thereafter,

divers/swimmers and boatmen were called to the said place by the

police. The search by the divers/swimmers continued upto 3.00

p.m. but they were only able to find two handgrenades.

      Search was conducted with the help of the naval squad

which commenced search at 10.00 a.m. and continued upto 6.00

p.m. in the presence of panch witnesses and they found four


                                                               313
                                                              Page 313
handgrenades and seven empty cartridges from the creek water.

The panchanama of the said recovery was drawn at the said place

at about 6.00 p.m. The same was read over to the co-panchas and it

was signed by them.

      On the next day search was again conducted by the naval

squad and they found, 72 empties. The same had been of yellow

colour and were of size of an empty cartridge for a rifle. Some of

them were bearing markings "71/71". Some of them were having

marking "661/71" and some of them were of "991/72". In respect

of the same, the panchanama was drawn which was read over to

the panchas and signed by them.



Deposition of Namdev Pundlik Mahajan, A.P.I. (PW-587)

501. He deposed that while he was on duty on 28 th/29th March,

1993 in Goregaon Police Station, he was informed by one of the

police officials that in connection with the Bombay Blast that had

occurred on 12.3.1993, Sharif Parkar had brought some bullets

from Bombay and carried out firing practice with an AK-56 rifle at

Sandheri Hillocks on 8.3.1993. He had immediately given the said

information to S.P., Shri T.S. Bhal who instructed him to go to the

said place. He alongwith other police officials reached Sandheri at

2.00 p.m. and found that the incident had occurred at Chinchecha


                                                               314
                                                              Page 314
Mal in the hillocks of Sandheri. Next day, on the instructions of

Shri T.S. Bhal he reached Sandheri Village at about 6.00 a.m.

Three police officials and 20 constables had already reached the

said place.    He inspected the said spot and drew up the

panchanama. He       recovered three empty cartridges of a rifle

bearing some marking on it, six lead pieces, the broken branches of

the tree, the targets prepared out of a cardboard, the stones bearing

the marks of bullets and these articles were wrapped in a paper.

The packet was tied with sutli and it was sealed. The panchnama

was read over to the co-panchas and it was signed by him and other

co-panchas.

      He had further deposed that on 30.3.1993 while recording

the statement of some persons, the residents of Sandheri he got the

clue about the involvement of one Hamid and Shahjahan, the

residents of Sandheri in the incident of training at Sandheri hillocks

on 8.3.1993.

      He deposed that in spite of his best efforts he could not trace

out the accused on 31.3.1993. However, on 1.4.1994 he got the

information that Hamid, Shahjahan, Issaq Hajwane and Sikkandar

Issaq Hajwane had taken shelter in the Sandheri forest. He reached

there alongwith other police officials and found them and brought

them to Goregaon Police Station for inquiry. After being satisfied


                                                                 315
                                                                 Page 315
that they were accused involved in C.R. No.6/93, they were

arrested at 10.15 a.m.

      On the same day, at about 10.30 a.m. Issaq Hajwane (A-79)

expressed his desire to make voluntary statement. The witness

immediately called two panch witnesses for drawing the

panchnama. He deposed that one panch witness was Ashok

Vichare (PW-104), and he did not remember the name of the other

panch witness.


Deposition of Chandrakant Sambhaji Pawaskar (PW-609)

502. He is a police officer and deposed that he had taken over the

investigation from Namdev Mahajan (PW-587) on 2.4.1993, and

subsequently recorded the statement of Rajaram Ramchandra

Kadam (PW-106) and Tukaram Babu Nagaonkar (PW-176) and

others.

      He further deposed that on 17.4.1993, he sent the articles

recovered from Chinchecha Mal to a Chemical Analyst with a

forwarding letter for carrying out the examination and sending a

report.

      He further deposed that on 17.4.1993 he had not seen the

empty cartridges but had described markings on the said empties in

Exh.2112 on the basis of the description of the empty cartridges in



                                                               316
                                                              Page 316
Panchnama i.e. Exh.539.        The said empty cartridges sent to

Chemical Analyst for examination on 17.4.1993 were bearing

marking "661/71" and the panchnama shown to him does not

reveal any empty cartridge bearing marking "661/71" being seized

under the same panchnama.


Deposition of Mahadeo Yeshwant Jadav (PW-103)

503. He is an agriculturist. He was called on 29 th March, 1993 to

act as a panch witness by the police from Goregaon Police Station.

He deposed that he alongwith Shri Patil reached Chinchecha Mal

at about 9.00 a.m. Some 4-5 police officials were already present at

the place. The police asked the panch witnesses to collect broken

branches, pieces of cardboard, three empty cartridges, six lead

pieces and pieces of stones lying on the ground and the police

took charge of the said articles. The police effected the writings

about the said things and signatures of the panch witnesses were

obtained on the writings. The said writings were read over to them

by the police before their signatures.


504.       After appreciating the entire evidence, the learned

Designated Court recorded the finding that the appellant (A-79)

could not furnish any explanation that he had no knowledge of said

contraband material for some other reason, and his possession of


                                                                317
                                                               Page 317
such articles for such a long period considered along with his

participation in the training programme leads to no other

conclusion than himself being party to conspiracy to commit

terrorist act.

       However, having regard to fact that there exists no other

evidence of commission of any act by the appellant (A-79) and

there is no evidence of him having been to Bombay or having

participated in conspiratorial meetings, it would be difficult to

accept that knowledge of commission of serial bombs blasts in

Bombay can be attributed to him. Since there is a paucity of

evidence to show that the appellant (A-79) had any knowledge

regarding the places at which the explosions were committed in

Bombay, he cannot be held liable for the offence of larger

conspiracy for which the charge at head firstly is framed against

him. However, considering the acts and offences committed by him

and particularly the retaining of such a contraband material and

disposing the same definitely establishes himself being a party to

conspiracy to commit terrorist act punishable under Section 3(3)

TADA.


505. The said material which was sent for chemical analysis

particularly live handgrenades were defused, as deposed by



                                                              318
                                                             Page 318
Pramod Kisanrao Dhaware (PW-598). He also issued a certificate

that 13 handgrenades had been defused which were given to Shri

V.M. Ghadshi .


506. From the evidence referred to hereinabove, it is evident that

Harishchandra Keshav Pawar (PW-105) named three persons from

his village participating in the arms training at Sandheri hillocks

and one of them had been Issaq Mohmed Hajwani (A-79). Rajaram

Ramchandra Kadam (PW-106) named all the three appellants to be

members consisting of 8-10 persons participating in the training of

arms and ammunition in Sandheri hillocks on 8.3.1993 and he

identified all the three appellants alongwith others in the court.

The other co-accused, particularly, Abdul Gani Ismail Turk (A-

11), Dawood @ Dawood Taklya Mohammed Phanse @

Phanasmiyan (A-14) and Sharif Abdul Gafoor Parkar @ Dadabhai

(A-17), in their confessional statements had also named all the

three appellants as participants in the arms training on 8.3.1993 at

Sandheri hillocks. The evidence of the aforesaid persons is

trustworthy as we do not see any reason to discard the same at least

to the extent of participation of these three appellants in arms

training on 8.3.1993 at Sandheri hillocks.

      In view of the above, the appeal is dismissed.



                                                                319
                                                               Page 319
Criminal Appeal No. 396 of 2011

507. The respondents (A-106 & A-111) had been acquitted of the

charge of conspiracy. Hence, the State has filed appeal against

them.


508. Shri Mukul Gupta, learned senior counsel appearing for the

appellant has submitted that the said respondents had been very

closely associated with terrorist activities and had participated in

the training at Sandheri with Tiger Memon (AA). Therefore, they

ought to have been convicted for the charge of conspiracy also.


509. On the contrary, Shri Sushil Karanjekar, learned counsel

appearing for the respondents (A-106 and A-111) has vehemently

opposed the appeal, contending that they were convicted and have

served substantial part thereof. The respondents (A-106 and A-

111) did not participate in the training at Sandheri, and at the most,

they could be held to be silent spectators of the training and

therefore, could not be involved in the offence. Thus, the appeal is

liable to be dismissed.


510. None of the said respondents (A-106 and A-111) has made

any confession. The evidence against them regarding the training

at Sandheri is only by Rajaram Kadam (PW-106), who had



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                                                                  Page 320
deposed in the court that on 8.3.1993, some people were being

trained in handling of arms at Chinchecha Mal in the morning at

about 10 a.m. As there was continuous firing he went to the said

hillock in order to find out what was happening. There he saw two

persons armed with guns standing at the said place and 5-6 persons

were sitting at Chinchecha Mal. He also saw a cardboard target

fixed nearby the hillock. One person with the beard from the

persons who were sitting there got up and asked him to leave the

hillock otherwise he would be shot by the gun. The witness (PW-

106) was frightened and immediately returned to his village. He

did not know the person who had threatened him or the other

persons who were having the arms. About 4 to 5 persons from his

village were amongst the persons who were sitting at the said place

at that time including these two respondents (A-106 and A-111).

He identified both the respondents (A-106 and A-111) in court as

the persons sitting at Chinchecha Mal.


511. The learned Designated Court after appreciating the

evidence came to the conclusion that there was sufficient evidence

to convict the respondents (A-106 and A-111) under Section 3(3)

TADA, as they also facilitated Tiger Memon (AA) in other aspects,

but merely sitting at the hillock, did not mean that they participated



                                                                 321
                                                                 Page 321
in the training and therefore, it could not be the basis of assuming

that they were party to the training programme.


512. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


513. In view of the above, we do not see any cogent reason to

take the view contrary to the view taken by the learned Special

Judge, considering the parameters laid down by this court for

entertaining the appeal against the order of acquittal. The appeal

lacks merit, and is accordingly, dismissed.


Criminal Appeal No. 414 of 2011

514. The respondent (A-79) had been acquitted of the charge of

conspiracy. Hence, the State has filed appeal against him.


515. Shri Mukul Gupta, learned senior counsel appearing for the

appellant has submitted that there was enough evidence and

particularly, the confessional statement made by Sharif Abdul

Gafoor Parkar @ Dadabhai (A-17), and the depositions of

Mahadeo Jaswant Jadav (PW-103), Ashok Vichare (PW-104),

Harish Chandra Pawar (PW-105), Rajaram Kadam (PW-106), and

Namdev Pundlik Mahajan (PW-587), to convict the respondent for

the first charge of conspiracy. Thus, the court below committed an


                                                                322
                                                               Page 322
error in acquitting the respondent from the said charge, and thus on

that count, the respondent should be convicted.


516. Ms. Farhana Shah, learned counsel appearing for the

respondent has submitted that considering the parameters for

interference in an appeal against the order of acquittal, no

interference is required. The respondent has already suffered

sufficiently, and he has been convicted on various other charges.

Thus, the appeal is liable to be dismissed.


517. The Designated Court after appreciating the entire evidence

came to the following conclusion:

            "However, case regarding A-79 clearly
      appears to be different. There exists an evidence
      denoting that in consequent to information given
      by A-79, 13 handgrenades and empties were
      recovered/seized by police during the period from
      1.4.1993 to 3.4.1993 from the sea coast at
      Gandharwadi. The said facet considered on the
      backdrop that training programme had taken place
      on 8th of March, 1993 or thereabout leads to the
      conclusion of A-79 having the knowledge of such
      a contraband article in the month of April 1993
      and the same being recovered from the place
      shown by him. Now considering in proper
      perspective the information furnished by A-79 his
      knowledge of such material lying at the said place
      and the reason because of which he was having the
      same i.e. his authorship in dumping the material at
      the said place. All the said evidence clearly
      reveals that all the said material must have been
      with A-79 after the training programme was
      complete and/or at least the said evidence and the


                                                                323
                                                               Page 323
ultimate act committed by him reveals that
himself having dominum and control over the said
material and hence consequently being in
possession of same. Thus having regard to the said
facets leads to no other conclusion that A-79 being
also guilty for offence under Section 6 of TADA,
offences under Sections 3 and 7 read with Section
25(1-A)(1-B)(a) of Arms Act and Section 201 IPC.

       In addition to same and having regard to fact
that no explanation had come forward from A-79
that he was having knowledge of said contraband
material for some other reason and his possession
of such articles for such a long period considered
along with his participation in the training
programme leads to no other conclusion than
himself being party to conspiracy to commit
terrorist act. However, having regard to fact that
there exists no other evidence of commission of
any act by A-79, himself being not a resident of
Bombay, no evidence of himself having been to
Bombay or having participated in conspiratorial
meeting, it will be difficult to accept that
knowledge of commission of serial bomb blasts in
Bombay can be attributed to him. Since there is a
paucity of evidence to show that A-79 was having
any knowledge regarding the places at which the
explosions were committed in Bombay he cannot
be held liable for the offence of larger conspiracy
for which charge at head firstly is framed against
him. However, considering the acts and offences
committed by him and particularly the retaining of
such a contraband material and disposing the same
definitely establishes himself being party to
conspiracy to commit terrorist act punishable
under Section 3(3) of TADA.

The court further held:

       The same discloses that A-79 was found
guilty for commission of offence of conspiracy to
commit terrorist act, punishable under Section 3(3)
of TADA and he was also found guilty on four


                                                       324
                                                       Page 324
other counts for commission of offences under
Sections 3(3) and 6 of TADA, Sections 3 & 7
read with Section 25(1-A)(1-B)(a) of Arms Act
and Section 201 IPC.
       Without unnecessarily reiterating every
aspect      connected      with    decision    arrived
accordingly, in short it can be said that each of the
said accused was found guilty accordingly mainly
due to acts committed by him in connection with
Sandheri training Episode which has taken place
on 8th of March, 1993 at Borghat and Sandheri in
which prime absconding accused Tiger Memon
had organised a training camp for imparting a
training of handling arms, ammunition and
handgrenades to the persons taken from Bombay
and so also local persons from the area of
Sandheri.
       The evidence surfaced and/or reasoning
given thereon earlier also reveals that all the
aforesaid accused persons were local residents and
were not from Bombay. The same also does not
disclose that they had any prior connection with
Tiger Memon or any of the prime accused
involved in this case, prior to their participation in
training programme or even thereafter. Similarly,
the evidence does not disclose any of these
accused having been trained in handling of
handgrenades. Though it is true that evidence have
surfaced regarding Tiger Memon having imparted
such a training of throwing of handgrenades at a
place by name Manjeri Ghat, Waghjai etc. still the
same does not disclose that the same was imparted
to any local person and on the contrary evidence
discloses that the same was given to the persons,
who were taken by Tiger Memon from Bombay to
said place.
       It is significant to note that though A-79 has
been held guilty accordingly still no evidence has
surfaced on the record of A-79 having used the
handgrenades with him for the purposes of
commission of any terrorist acts of committing
explosion or any other acts to further the objective
of conspiracy to which he was a party. It is further


                                                         325
                                                         Page 325
significant to note that no evidence has surfaced on
the record to reveal that A-79 held guilty for
offence of conspiracy or even A-106 & A-111 at
any point of time had been to Bombay for
commission of any act furthering object of
criminal conspiracy, to which A-79 was found to
be a party. Needless to add that acts committed by
each of the accused were confined to Sandheri and
the same had never transcended beyond the said
area and none of them and particularly A-79 is not
found to have committed any act in the area of
Bombay i.e. the place at which serial blasts were
committed, resulting into deaths of and/or injuries
to many.
       Having regard to all the aforesaid facets and
particularly taking into consideration the extent of
acts committed by A-79 he was found guilty for
offence of conspiracy to the extent i.e. only for
offence of conspiracy to commit terrorist acts
made punishable under Section 3(3) of TADA or
in other words A-79 was not found guilty for a
party to a conspiracy for the acts for which the
charge at head firstly was framed against him.
Since elaborate reasoning for coming to such a
conclusion, being already recorded in the earlier
part of the judgment and so also the aspect of
framing such elaborate charge, etc. being also
recorded explained during the said earlier part of
reasoning and so also while making a common
discussion the earlier part of the sentence part of
judgment and so also while discussing about
awarding sentence to accused, who had acquired
the training at Pakistan i.e. A-77, 92, 94, 95, 108,
115, it will be wholly unnecessary for once again
repeat the said reasoning.
       As stated earlier prosecution has demanded
for giving maximum penalty prescribed under the
law for all the aforesaid accused who according to
prosecution i.e. A-106 to A-111 falling in second
group while A-79 falling in the first group made
by learned Chief Public Prosecutor i.e. the group
of accused found guilty for commission of
offences under TADA and so also under other


                                                       326
                                                       Page 326
      enactments. During the discussion made earlier for
      reasons already given it has been already ruled that
      such a blanket attitude cannot be taken while
      determining the sentence for such accused placed
      in said group as different penalty ranging from 5
      years to life imprisonment with fine has been
      prescribed under TADA for commission of various
      acts/offences as prescribed under Section 3(3) of
      TADA including for offence of conspiracy to
      commit terrorist acts made punishable under the
      same."


518. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


519. In view of the fact that after appreciating the entire evidence

the learned Special Judge reached the conclusion that the case of

respondent (A-79) was entirely different from the other co-accused,

particularly those who had not participated in the training of arms.

It was further held that respondent (A-79) had knowledge of the

said contraband material being arms and ammunition and had been

brought for terrorist activities and he was found in possession of

the handgrenades and empties; it was further found that A-79 had

thrown the same in the creek water to absolve himself of the

offences. We are of the view that the Special Judge was not

justified in acquitting him from the first charge of larger conspiracy

merely on the ground that he did not know about the places where

the bombs had to be thrown and he was not the resident of Bombay


                                                                 327
                                                                 Page 327
and did not participate in the conspiratorial meetings. The finding

of fact recorded by the Special Judge is also contradictory as the

court held that he participated in the arms' training at Sandheri.

However, he observed that the evidence does not disclose that any

of those accused had been trained in handling of handgrenades.


520. In view of the fact that there is sufficient material on record

that the respondent participated in the training of handling the

handgrenades, there was no occasion for the learned Special Judge

to take such a view.

      In view of the above, the appeal stands allowed. The

respondent is awarded life imprisonment.        The respondent is

directed to surrender before the learned Designated Court within a

period of four weeks to serve out the remaining sentence, failing

which the Designated Court will secure his custody and send him

to jail to serve out the sentence.




                                                                 328
                                                                 Page 328
           CRIMINAL APPEAL NO. 1423 OF 2007


Shah Nawaz Khan                                      ...Appellant

                              Versus

State of Maharashtra                                ... Respondent


                              AND


           CRIMINAL APPEAL NO. 1032 OF 2012


State of Maharashtra                                  ...Appellant

                              Versus

Shah Nawaz Khan                                      ... Respondent



Criminal appeal No. 1423 of 2007

521. This appeal has been preferred against the judgment and

order dated 31.5.2007 passed by the Special Judge of the

Designated Court under the TADA in the Bombay Blast cases,

Greater Bombay in Bombay Blast Case No.1/93, by which the

appellant (A-128) has been convicted under Section 3(3) TADA,

on two counts, and has been awarded a sentence of 10 years,

alongwith a fine of Rs.25,000/- , on each count.    Further, all the

sentences have been directed to run concurrently.



                                                               329
                                                               Page 329
522. In addition to the main charge of conspiracy, the appellant

was charged for participating in and assisting Mushtaq @Ibrahim

@ Tiger Abdul Razak Memon, and his associates in the landing

and transportation of arms, ammunition and explosives which were

smuggled into India for the purpose of committing terrorist acts, at

various points such as, Shekhadi, Taluka Shrivardhan, District

Raigad on 3rd and 7th February, 1993, and further for agreeing to

undergo weapons' training in Pakistan in the handling of arms,

ammunition and explosives for committing the said terrorist acts

and for this purpose, he travelled to Dubai, and attended

conspiratorial meetings held there in these regards.


523. Shri Mushtaq Ahmad, learned counsel appearing on behalf

of the appellant (A-128), has submitted that he was only 21 years

of age at the time of the aforementioned incident, and that he had

falsely been implicated in the case, as he was not involved in any

overt act, nor he had gone to Pakistan for any weapons' training.

A-128 was arrested at Bhusawal, and his conviction cannot stand

for want of evidence against him. Some of the co-accused in their

confessional statements, named merely `Shahnawaz' and in

addition to the appellant, there is also another convict named

`Shahnawaz Qureshi'.       Therefore, there has been confusion



                                                                330
                                                               Page 330
regarding the identification of the appellant (A-128). Hence, this

appeal deserves to be allowed.


524. On the contrary, Shri Mukul Gupta, learned senior counsel

appearing on behalf of the respondent, has vehemently opposed the

appeal contending that the confessional statement of the appellant

(A-128) has been corroborated by the confessional statements of

various other co-accused, particularly, Dawood Taklya Mohammed

Phanse (A-14), Munna @Mohammed Ali Khan @ Manojkumar

Bhavarlal Gupta (A-24), Ashfaq Kasim Havaldar (A-38), Shaikh

Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58), Nasir

Abdul Kader Kewal @ Nasir Dakhla (A-64), Shaikh Kasam @

Babulal Ismail Shaikh (A-109) and Salim Kutta (A-134). The

appellant (A-128) had admittedly gone to Dubai, and participated

in conspiratorial meetings held there, and had also been closely

associated with the main conspirators and further that he had met

Tiger Memon (AA) and others several times.            Therefore, no

interference is called for.


525. We have considered the rival submissions made by the

learned counsel for the parties and perused the record.




                                                               331
                                                               Page 331
526. Evidence against the appellant :

(a)   His own confessional statement
(b)   Confessional statement of Munna @Mohammed Ali Khan
       @ Manojkumar Bhavarlal Gupta (A-24)
(c)   Confessional statement of Shaikh Mohmed Ethesham Haji
       Gulam Rasool Shaikh (A-58)
(d)   Confessional statement of Shaikh Kasam @Babulal Ismail
       Shaikh (A-109)
(e)   Confessional statement of Nasir Abdul Kader Kewal @
       Nasir Dakhla (A-64)
(f)   Confessional statements of Sultan-E-Rome Sardar Ali Gul
       (A-114), Abdul Aziz Abdul Kader (A-126),           Mohmed
       Iqbal Ibrahim (A-127), Eijaz Mohd. Sharif @ Eijaz Pathan
       @ Sayyed Zakir (A-137), Murad Ibrahim Khan (A-130)
(g)   Depositions of Harish Chandra Surve (PW-108), H.C. Singh
       (PW-474), Massey C. Fernandes (PW-311) and Vijay
       Govind More (PW-137)



527. Confessional statement of the appellant (A-128):

      In his confessional statement dated 12.5.1994, he deposed

that in 1991, he was living in Chandshahwali Dargah, Pawai, a

place where he had been residing for a long time and that here he

met a person named Karimullah. After leaving his job in White

Star International, the appellant (A-128) met Karimullah and asked

him to get him (A-128) a job. He (A-128) was taken to the office of

Eijaz Pathan of M/s Famous Construction but was not successful.


                                                               332
                                                              Page 332
Then the appellant met Babulal (A-109) and Shaikh Mohmed

Ethesham Haji Gulam Rasool Shaikh (A-58), who was also

associated with Karimullah and developed a visiting relationship

with them. After the demolition of the Babri Masjid, Karimullah

called the appellant (A-128) through Shaikh Mohmed Ethesham

Haji Gulam Rasool Shaikh (A-58), and met him (A-128) in a flat

near Rajasthan Hotel, Bombay, in the last week of January, or the

first week of February, 1993. At such time, several other accused

were also present in the flat. He learnt later on, that the said flat

belonged to Yeda Yaqub. Karimullah assured the appellant (A-

128) that he would find some work for him and also gave him

Rs.500/- for household expenditure. After 2-3 days, when he went

to meet Karimullah, he found large number of other co-accused

sitting in the said flat, and saw that they were getting ready to go

somewhere. Akbar asked the appellant (A-128) to go with them.

They all proceeded in a blue coloured commander Jeep. While

going with them, he also saw Tiger Memon (AA) and other

persons moving alongwith them in another jeep. He was told by

Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58) that

the persons in the other jeep who were traveling with them were

Tiger Memon, Javed Chikna, Tahir Takalpa, Nazir, Bashir Khan,

Salim Kurla, Rahat Ali and Mansoor Ahmad. He was told by


                                                                 333
                                                                Page 333
Akbar that they were going to Shrivardhan to collect weapons etc.,

which had been ordered by Tiger Memon (AA) for the Bombay

blasts. All the persons including the appellant (A-128) and Tiger

Memon (AA) reached Shekahdi at 8.00 p.m. After reaching the

Beach, Tiger Memon removed a rifle from a black bag and gave

the same to Javed Chikna, Karimullah and Nasir. After sometime,

Tiger Memon, alongwith a few co-accused, particularly, Jawed

Chikna, Yeda Yaqub, Dawood Takalya and some labourers went

into the Sea in a trawler which was already been parked there, and

returned after 15-20 minutes with some goods. They took 3-4

rounds to the Sea and back, and brought sacks with them each time

they returned. Tiger Memon opened some sacks and the appellant

(A-128) saw that they contained rifles, hand grenades and plastic

bags containing a black coloured powder in them. Bullets were also

among the said contraband, which were kept by Tiger Memon in

his Maruti car. After that they left the said place and travelled for

about an hour and reached a building which looked like a factory

with a big tower. After reaching there, the sacks were kept outside

once unloaded from the tempo. Some packets containing rifles and

plastic bags were kept in the cavities in the Commander jeeps. At

5 a.m. they left the said tower and reached Mahad from where they

left for Bombay on the instructions of Tiger Memon (AA). The


                                                                 334
                                                                Page 334
appellant (A-128) was sitting in the tempo alongwith Karimullah.

The appellant (A-128) got down from the tempo upon the

instructions of the other co-accused and the tempo was taken to

Mumbra and its contents were emptied there by Yeda Yakub. He

further said that after a few days Karimullah asked the appellant

(A-128) over the telephone whether he had a passport, and as the

answer provided by him was in the affirmative, he (A-128) was

called alongwith his passport. When he went to meet Karimullah

with his (A-128) passport, he found some of the other co-accused

present in Karimullah's flat. He (A-128) handed over his passport

to Karimullah and asked why it was required, he (A-128) was then

told that he (A-128) had to go to Dubai for weapons' training. The

appellant (A-128) subsequently left for Dubai on 15.2.1993 on the

ticket arranged by the co-accused. He went there alongwith seven

other co-accused. They went to Dubai by an Air India flight and

reached there at 6.00 o'clock in the evening. They got their visa

and went to the flat of Eijaz Pathan on the 8 th floor of a building

near the Sea. The next day some other accused also reached there.

Accused Yeda Yakub met them on a few occasions and told them

that he was in the process of making arrangements for them to go

to Pakistan where they would receive their training. However, he

(A-128) could not go to Pakistan as the said training could not be


                                                               335
                                                               Page 335
arranged, and hence, he (A-128) returned to Bombay on 1.3.1993.

He (A-128) was arrested from Bhusawal when he was with his

newly wedded wife. However, he had not committed any overt act

so far as the Bombay blasts dated 12.3.1993 are concerned.


528. It is evident from his confessional statement that he was

unemployed at the relevant time.        He (A-128) was closely

connected with Karimullah and the other co-accused. He (A-128)

was fully aware that the co-accused were smuggling silver, as well

as the arms and ammunition.       He had gone to Dubai for the

purpose of traveling further to Pakistan for weapons training. He

(A-128) could not go to Pakistan but waited for 15 days in Dubai

and later returned to Bombay. His expenses for traveling to Dubai

and back were met by the co-accused. He participated twice in the

landing and transportation of arms and ammunition.             His

confessional statement makes it abundantly clear that his statement

was voluntary. He was given sufficient time to re-think and was

allowed to stay in the CBI office for a period of 48 hours, and he

(A-128) made it clear that during this period no body had met,

pressurised, threatened or intimidated him.




                                                               336
                                                              Page 336
Confessional statement of Munna @Mohammad Ali (A-24):

529. The said co-accused corroborated the prosecution's case to

the extent that the appellant (A-128) had in fact, participated in the

landing at Shekhadi.


530. Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh

(A-58), had been staying alongwith Eijaz Mohd Sharif @Eijaz

Pathan @ Sayyed Zakir (A-137) at the house of Haji Yakub during

the riots that took place in the month of January, 1993 in Bombay,

alongwith some other persons including the appellant (A-128).

During that period, Munna (A-24) told the appellant (A-128) and

the other co-accused that he had received a telephone call from

Eijaz Bhai asking him to unload the Tiger's silver. The accused

(A-58), alongwith other co-accused participated in the landing at

Shrivardhan. He (A-58) further stated that at the time of such

landing, Tiger Memon had given him a pistol, and one AK-47 rifle

each to Munna and Karimullah and a revolver to the appellant (A-

128) to be used in the event of any intervention during the landing.

However, the said weapons were returned after the landing was

completed.




                                                                 337
                                                                 Page 337
531.    Babulal (A-109) supported the case of the prosecution to

the extent that the appellant (A-128) visited Dubai alongwith the

other co-accused.


532.    Nasir Abdul Kader Kewal (A-64) has supported the

version of events that show the participation of the appellant (A-

128) in the Shekhadi landing.


533. This prosecution case also stood corroborated by Sultan-E-

Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126),

Mohmed Iqbal Ibrahim (A-127), Eijaz Mohd. Sharif @ Eijaz

Pathan @ Sayyed Zakir (A-137) and Murad Ibrahim Khan (A-

130).


534. Harishchand Laxman Surve (PW-108) and Vijay Govind

More (PW-137) were employed as watchmen, and they have also

deposed against the appellant (A-128) as regards his presence there

alongwith the other co-accused when they came to Wangni Tower

from Shekhadi with arms etc.

Evidence of witnesses:

535.      In addition thereto, the case of the prosecution has been

supported by H.C. Singh (PW-474), Superintendent of Police, CBI

who recorded the confessional statement of the appellant (A-128)



                                                               338
                                                              Page 338
and Massey C Fernandes (PW-311), a former employee of Hans

Pvt. Ltd. who arranged tickets for Shahnawaz Khan (A-128) and

others, and Vijay Govind More (PW-137), an employee of Abu

Travel Agency, who deposed to the effect that 11 persons' tickets

were arranged by him and that payment for the same was made by

the co-accused.


536.   The appellant (A-128) made a retraction of his confessional

statement on 1.7.1994 i.e., within two months of making such

confessional statement, stating that he never made any statement at

all and that he had been forced to make a confessional statement

and was also forced to sign on blank papers. He had hence been

falsely implicated in the said case.


537. In his statement under Section 313 of the Code of Criminal

Procedure, 1973, while replying to Question Nos. 218 and 292, he

denied his participation in the Shekhadi landing of weapons and in

the transportation of the same to Bombay. He also denied that he

had gone to Dubai to execute a certain conspiracy and in fact,

rather suggested that he had gone there on a business trip.


538. Upon consideration of the entire evidence on record, the

Designated Court held that the same leads to the inescapable



                                                               339
                                                              Page 339
conclusion of the appellant (A-128) being involved in the Shekhadi

landing operation as has been denoted by the said material and has

thus committed an offence under section 3(3) TADA. It was further

held that considering the evidence of the said landing, and the role

carried out by the appellant (A-128) and ultimately the fact that he

himself had continued with the said operation, and had not

provided any information about the same to any proper authority,

the defence's contention that earlier he did not know the purpose

for which he was going to Shekhadi, or that he was not aware that

the arms and ammunition were to be smuggled, is liable to be

rejected. The confession of the appellant (A-128) itself reveals, that

during the course of said operation he became fully aware of the

nature of the contraband goods i.e., the same being arms and

ammunition. The appellant (A-128) being taken to Bombay for the

execution of the said operation, and thereafter being sent to Dubai

for training denotes that he was a man in whom Tiger Memon

(AA) had confidence, as he did in the other conspirators.

      However since the appellant (A-128) committed the

aforementioned relevant acts much before the main conspiracy of

actually committing the bomb blasts planned and had not

participated in any meetings or committed any acts in furtherance

of the said main conspiracy, it was held that he could not be held


                                                                 340
                                                                 Page 340
guilty for the offence of larger conspiracy i.e. first charge, but is

required to be held guilty for the conspiracy to commit terrorist

acts as aforementioned.


539. We find no evidence on record warranting interference with

the judgment of the learned Designated Court. The said appeal

lacks merit and is thus, accordingly dismissed.


Criminal Appeal No. 1032 of 2012

540. Though respondent has been convicted for various offences,

he has been acquitted of the charge of conspiracy. Hence, the State

has preferred this appeal against the order of acquittal.


541. Shri Mukul Gupta, learned senior counsel appearing for the

appellant has submitted that the evidence against the respondent

(A-128) has been his own confession, and confessional statements

of Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul

Kader (A-126), Mohmed Iqbal Ibrahim (A-127), Shaikh Kasam

@Babulal Ismail Shaikh (A-109), Manoj Kumar Gupta (A-24),

Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58),

Eijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed Zakir (A-137),

Nasir Abdul Kader Kewal (A-64), Murad Ibrahim Khan (A-130),

and further depositions of H.C. Singh (PW-474), Harish Chandra



                                                                341
                                                                Page 341
Surve (PW-108), Iftihar Ahmed Iqbal Ahmed (PW-317), Abdul

Gafoor (PW-197) and Chaturbhuj R. Rode (PW-222). Thus, he

ought to have been convicted for the first charge.


542. Shri Mushtaq Ahmad, learned counsel appearing for the

respondent has submitted that the Designated Court has considered

the entire evidence, and after appreciating the same, it came to the

conclusion that the respondent was not guilty of the first charge of

conspiracy. In view of the parameters laid down by this court, no

interference is required against the order of acquittal. Hence, the

appeal is liable to be dismissed.


543. After appreciating the entire evidence, the Designated Court

came to the conclusion that the respondent (A-128) had

participated in landing and transportation of arms, ammunition and

explosives. It was also concluded that he (A-128) had agreed to

undergo weapons' training in Pakistan for committing terrorist

acts. He also attended a meeting at Dubai alongwith co-

conspirators to plan commission of terrorist acts.       Thus, the

respondent (A-128) was found guilty of conspiracy only to the

extent of commission of terrorist acts punishable under Section

3(3) TADA, and not of the larger conspiracy as he could not go to

Pakistan for training for handling of arms and ammunition. He (A-


                                                                342
                                                               Page 342
128) had been acquitted of the charge of larger conspiracy for the

reason that he did not participate in any act after his return from

Dubai on 1.3.1993.


544. The parameters laid down by this court in entertaining the

appeal against the order of acquittal have to be applied.


545. We do not find any cogent reason to interfere in the matter.

The appeal lacks merit and is accordingly dismissed.



546. Before parting with the case, we may clarify that if the

accused-appellant(s) whose appeals have been dismissed and are

on bail, their bail bonds are cancelled and they are directed to

surrender within four weeks from today, failing which the learned

Designated Court, TADA shall take them into custody and send

them to jail to serve out the remaining part of their sentences.




                                        ...............................J.
                                        (P. SATHASIVAM)




                                        .................................J.
New Delhi,                                                (Dr. B.S.
CHAUHAN)
March 21, 2013



                                                                     343
                                                                     Page 343
     Annexure `A'

S.  Criminal           Accused Name and         Sentence by    Award by
No. Appeal             Number                   Designated     Supreme
                                                Court          Court
1.   1438 of 2007      Ahmed Shah Khan          5 years RI     Dismissed
                       Durrani @ A.S.Mubarak    with fine of
                       S (A-20)                 Rs.25,000/-

2.   912 of 2007       Aziz Ahmed Md.           5 years RI     Dismissed
                       Ahmed Shaikh (A-21)      with fine of
                                                Rs.25,000/-

3.   1030 of 2012    Ahmad Shah Khan @          Acquitted      Dismissed
                     Salim Durani & Anr.
      (State appeal) (A-20 and A-21)

4.   1311 of 2007      Yusuf Khan @ Kayum       5 years RI     Dismissed
                       Kasam Khan (A-31)        with fine of
       AND                                      Rs.25,000/-

     417 of 2011                                Acquitted      Dismissed
      (State appeal)

5.   1610 of 2011      Uttam Shantaram Potdar   10 years RI    Dismissed;
                       (A-30)                   with fine of
                                                Rs.50,000/-;
       AND                                      and 14 years
                                                RI with fine
                                                of Rs.1 lakh

     398 of 2011                                Acquitted      Allowed
                                                               and
     (State appeal)                                            awarded
                                                               life
                                                               imprison-
                                                               ment
6.   1420 of 2007      Mohd. Rafiq @ Rafiq      5 years RI     Dismissed
                       Madi Musa Biyariwala     with fine of
        AND            (A-46)                   Rs.25,000/-;
                                                and 7 years
                                                RI with fine
                                                of


                                                                   344
                                                                   Page 344
                                               Rs.50,000/-


     1031 of 2012                              Acquitted      Dismissed

     (State appeal)

7.   675-681 of       Suleman Mohamed         A-18:           Dismissed
     2008             Kasam Ghavte & Ors.
                      (A-18, A-28, A-61, A-62 7 years RI
                      and A-73)               with fine of
                                              Rs.25,000/-

                                               A-28           Dismissed
                                               7 years RI
                                               with fine of
                                               Rs.25,000/-

                                               A-61           Dismissed
                                               7 years RI
                                               with fine of
                                               Rs.50,000/-

                                               A-62           Dismissed
                                               9 years RI
                                               with fine of
                                               Rs.50,000/-

                                               A-73           Dismissed
                                               8 years RI
                                               with fine of
                                               Rs.10,000/-

8.   600 of 2011      Sayed Abdul Rehman       Acquitted      Dismissed
     (State appeal)   Shaikh (A-28)

9.   406 of 2011      Gulam Hafiz @ Baba       Acquitted      Dismissed
     (State appeal)   (A-73)

10   408 of 2011      Suleman Kasam Ghavate Acquitted         Dismissed
     (State appeal)   (A-18)




                                                                  345
                                                                  Page 345
11.   1034 of 2012     Tulsi Ram Dondu Surve     Acquitted      Dismissed
      (State appeal)   (A-62)

12.   416 of 2011      Sujjad Alam (A-61)        Acquitted      Dismissed
      (State appeal)

13.   512 of 2008      Abdulla Ibrahim Surti &   5 years RI    Dismissed
                       Ors. (A-66)               with fine of
                                                 Rs.25,000;
                                                 and 6 years
                                                 RI with fine
                                                 of Rs.25000/-

                       Faki Ali Faki Ahmed       5 years RI     Dismissed
                       Subedar (A-74)            with fine of
                                                 Rs.25,000;
                                                 and 6 years
                                                 RI with fine
                                                 of
                                                 Rs.25,000/-

                       Janardhan Pandurang       6 years RI     Dismissed
                       Gambas (A-81)             with fine of
                                                 Rs.50,000;
                                                 and 3 years
                                                 RI with fine
                                                 of
                                                 Rs.25,000/-

                       Sayed @ Mujju Ismail      5 years RI     Dismissed
                       Ibrahim Kadri (A-104)     with fine of
                                                 Rs.10,000/-

                       Srikrishna Yeshwant       6 years RI     Dismissed
                       Pashilkar (A-110)         with fine of
                                                 Rs.25,000/-

      401 of 2011                                Acquitted
      (State appeal)                             from the       Dismissed
        (A-74)                                   charge of
                                                 larger
                                                 conspirary



                                                                    346
                                                                    Page 346
      595 of 2011                                Acquitted       Dismissed
      (State appeals)                            from the
       (A-66)                                    charge of
                                                 larger
                                                 conspirary

14.   171 of 2008       Ashok Narayan            Both - 6 years Dismissed
      and 172 of        Muneshwar (A-70)         RI with fine
      2008              Arun Pandari Nath        of Rs.25,000;
                        Madhukar Mahadik (A-
                        99)

      403 of 2011                                Acquitted for   Dismissed
      (State appeal)                             larger
                                                 conspiracy

15.   1630 of 2007      Liyakat Ali Habib Khan   5 years RI      Dismissed
      and               (A-85)                   with fine of
                                                 Rs.25,000/-;



      1029 of 2012                               Acquitted for
      (State appeal)                             larger
                                                 conspiracy      Dismissed

16.   207 of 2008       Mujib Sharif Parkar      5 years RI      Dismissed
                        (A-131)                  with fine of
      AND                                        Rs.25,000/-

      415 of 2011                                Acquitted for   Dismissed
      (State appeal)                             larger
                                                 conspiracy

17.   2173 of 2010      Mohammed Sultan          7 years RI      Dismissed
                        Sayyed(A-90)             with fine of
                                                 Rs. 1 lakh

18.   1632 of 2007      Ranjit Kumar Singh       9 years RI      Dismissed
                        (A-102)                  with fine of
                                                 Rs.3 lakhs



                                                                     347
                                                                     Page 347
19.   271 of 2008      Sudhanwa Sadashiv        8 years RI      Dismissed
                       Talavdekar (A-113)       with fine of
                                                Rs. 2 lakhs

20.   598 of 2011      Jayawant Keshav          Acquitted for   Dismissed
      (State appeal)   Gaurav (A-82)            larger
                                                conspiracy

                       Mohd. Sultan Sayyad
                       (A-90)


                       Ranjitkumar Singh
                       Baleshwar Prasad
                       (A-102)

                       Sudhanwa Sadashiv
                       Talwadekar (A-113)

21.   1439 of 2007     Khalil Ahmed Sayed Ali   10 years RI     Dismissed
                       Nazir (A-42)             with fine of
                                                Rs.50,000/-;
                                                10 years RI
                                                with fine of
                                                Rs.25,000/-;
      AND                                       and 10 years
                                                RI with fine
                                                of
                                                Rs.50,000/-

      1035 of 2012                              Acquitted for   Dismissed
      (State appeal)                            larger
                                                conspiracy

22.   203 of 2008      Shahnawaz Hajwani (A-    (A-106) and     Dismissed
                       106), Sikkandar Issaq    (A-111) ­
      AND              Hajwani (A-111) and       5 years RI
                       Issaq Mohammed           with fine of
                       Hajwane (A-79)           Rs. 10,000/-

                                                (A-79) ­
                                                7 years RI
                                                with fine of


                                                                    348
                                                                    Page 348
                                                 Rs. 25,000/-

      396 of 2011                                Acquitted for
      (State appeal )                            larger          Dismissed
      (A-106 & A-                                conspiracy
      111)

      414 of 2011       Issaq Mohd. Hajwane      Acquitted for   Allowed
      (State appeal)                             larger          and
      (A-79)                                     conspiracy      awarded
                                                                 life
                                                                 imprison-
                                                                 ment

23.   1423 of 2007      Shah Nawaz Khan          10 years RI     Dismissed
                        (A-128)                  with fine of
                                                 Rs. 25,000/-
      AND

      1032 of 2012                               Acquitted for   Dismissed
      (State appeal)                             larger
                                                 conspiracy


      These are cross appeals filed by the accused as well as by the State.

      Appeals filed by the accused are dismissed, while the appeals filed

      by the State being Criminal Appeal Nos. 398 of 2011 against

      Uttam Shantaram Potdar (A-30), and Criminal Appeal No. 414 of

      2011 against Issaq Mohd. Hajwane (A-79) are allowed. A-30 and

      A-79 are awarded life imprisonment.          They are directed to

      surrender within four weeks from today, failing which the learned

      Designated Court, TADA shall take them into custody and send

      them to jail to serve out the remaining part of their sentences, as

      have been awarded by the Designated Court.



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                                                                      Page 349
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