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.
74
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
97
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
101
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
102
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
103
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
104
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
109
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
178
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.
232
Page 232
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.
234
Page 234
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.
235
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
276
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
320
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.
349
Page 349
350
Page 350
|
