Latest Expert Exchange Queries
sitemapHome | Registration | Job Portal for CA's | Expert Exchange | Currency Converter | Post Matrimonial Ads | Post Property Ads
 
 
News shortcuts: From the Courts | News Headlines | VAT (Value Added Tax) | Service Tax | Sales Tax | Placements & Empanelment | Various Acts & Rules | Latest Circulars | New Forms | Forex | Auditing | Direct Tax | Customs and Excise | ICAI | Corporate Law | Markets | Students | General | Indirect Tax | Mergers and Acquisitions | Continuing Prof. Edu. | Budget Extravaganza | Transfer Pricing
 
 
 
 
Popular Search: ACCOUNTING STANDARDS :: list of goods taxed at 4% :: VAT RATES :: VAT Audit :: TAX RATES - GOODS TAXABLE @ 4% :: TDS :: ICAI offer Get Windows 7,Office 2010 in Rs.799 Taxes :: articles on VAT and GST in India :: Central Excise rule to resale the machines to a new company :: ARTICLES ON INPUT TAX CREDIT IN VAT :: due date for vat payment :: cpt :: empanelment :: ACCOUNTING STANDARD :: form 3cd
 
 
From the Courts »
  Micro Spacematrix Solution P Ltd vs. ITO (ITAT Delhi)
 Micro Spacematrix Solution P Ltd vs. ITO (ITAT Delhi)
 CIT vs. Greenfield Hotels & Estates Pvt. Ltd (Bombay High Court)
 IndiaBulls Financial Services Ltd vs. DCIT (Delhi High Court)
 Maharao Bhim Singh of Kota vs. CIT (Supreme Court)
 Ravneet Takhar Vs. Commissioner Of Income Tax Ix And Ors.
 Jaiprakash Associates Ltd. Vs. Commissioner Of Income Tax
 Formula One World Championship Limited Vs. Commissioner Of Income Tax, International Taxation-3 And Anr.
 Commissioner Of Income Tax International Taxation-3 Delhi Vs. Formula One World Championship Ltd. And Anr.
 Reliance Communications Ltd vs. DDIT (ITAT Mumbai)
  Sushila Devi vs. CIT (Delhi High Court)

Crl.A.No.418/2011 STATE OF MAHRASHTRA Vs. FAZAL REHMAN ABDUL WITH CONNECTED MATTERS [APPEALS FILED BY THE STATE AGAINST ACQUITTAL
April, 02nd 2013
  APPEALS FILED BY THE STATE AGAINST ACQUITTAL
                         (PART- 5)
                                              REPORTABLE

             IN THE SUPREME COURT OF INDIA

           CRIMINAL APPELLATE JURISDICTION

             CRIMINAL APPEAL NO. 418 OF 2011


State of Maharashtra                               ...Appellant

                              Versus

Fazal Rehman Abdul                                 ... Respondent


                             WITH

                 Criminal Appeal No. 409 of 2011

                             WITH

                 Criminal Appeal No. 601 of 2011

                             WITH

                 Criminal Appeal No. 404 of 2011

                             WITH

                 Criminal Appeal No. 405 of 2011

                             WITH

                 Criminal Appeal No 394 of 2011



                                                                  Page 1
            WITH

Criminal Appeal No. 1033 of 2012

            WITH

Criminal Appeal No. 594 of 2011

            WITH

Criminal Appeal No. 402 of 2011

            WITH

Criminal Appeal No. 1022 of 2012

            WITH

Criminal Appeal No. 393 of 2011

            WITH

Criminal Appeal No. 391 of 2011

            WITH

Criminal Appeal No. 1027 of 2012

            WITH

Criminal Appeal No. 597 of 2011

            WITH

Criminal Appeal No. 407 of 2011

            WITH

Criminal Appeal No. 1025 of 2012


                                    2
                                   Page 2
            WITH

Criminal Appeal No. 599 of 2011

           WITH
Criminal Appeal No. 395 of 2011

             AND

Criminal Appeal No. 397 of 2011




                                   3
                                  Page 3
              CRIMINAL APPEAL NO. 418 OF 2011

State of Maharashtra                                  ...Appellant

                                 Versus

Fazal Rehman Abdul                                    ... Respondent


                         JUDGMENT

DR. B.S. CHAUHAN, J.

1.      This criminal appeal has been preferred against the impugned

judgment and order dated 2.8.2007, passed by a Special Judge of the

Designated Court under the Terrorist and Disruptive Activities

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

Bombay Blast Case No. 1/93, acquitting the respondent of all the

charges.




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 Memon v. State of

Maharashtra thr. CBI], it may be pertinent to mention only the

relevant facts and charges against the respondent.

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


                                                                        4
                                                                     Page 4
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 respondent (A-76) stood convicted.

C.      The respondent 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 the `IPC') read with Sections 3(2)(i)(ii),

3(3),   (4),   5   and   6   TADA     and   read   with    Sections   302,

307,326,324,427,435,436, 201 and 212 IPC and offences under

Sections 3 and 7 read with Sections 25 (I-A), (l-B)(a) of the Arms Act,

1959, Sections 9-B (1)(a)(b)(c) of the Explosives Act, 1884, Sections




                                                                       5
                                                                      Page 5
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, the respondent had been charged for persuading his

brother-in-law Firoz Amani Malik (A-39) to undergo weapons'

training in Pakistan and keeping in his possession 4 handgrenades

brought to him by Firoz Amani Malik (A-39) and for handing over the

same to Mohd. Jabir (A-93-dead), showing that the same had been

smuggled into India for committing terrorist activities.


E.   The Designated Court after conclusion of the trial acquitted the

respondent of all the charges.

       Hence, this appeal.


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

appellant has submitted that the respondent had been responsible to

send the co-accused to Dubai, and further to Pakistan to have training

for handling the arms, ammunition and explosives, and therefore, his

acquittal for all the charges is liable to be reversed.


4.     On the contrary, learned counsel appearing for the respondent

has submitted that the co-accused (A-39), who was brother-in-law of



                                                                   6
                                                                 Page 6
respondent himself, had not been aware of the purpose for which he

had been taken to Dubai. The respondent cannot be held responsible

for sending Firoz (A-39) for any criminal activity. Thus, the well-

reasoned judgment of the Special Judge does not require interference.



5.     We have considered the rival submissions made by learned

counsel for the parties and perused the record.


       There is no confession by the respondent accused (A-76).


6.     Confessional statement of Firoz @ Akram Amani Malik (A-39)

revealed that the said respondent was the brother-in-law of Firoz @

Akram Amani Malik (A-39). The said accused Firoz @ Akram Amani

Malik (A-39) had been awarded the death sentence in this very case

and his appeal is being heard alongwith this case.

      Respondent (A-76) used to advise the said accused (A-39) to go

to Dubai and the said accused also expressed his willingness and desire

to go to Dubai in the month of January, 1993. He (A-39) got a passport

and went to Dubai with Miyaz. After getting a visa they left the airport.

One person named Ayub Bhai took them to a building near Kadar

Hotel. There they found another person Nasim who took them to a flat



                                                                    7
                                                                   Page 7
on the 2nd floor. Nasim told him there that he would be going to

Pakistan and his purpose for this visit would be explained later.


7.     Prakash Khanvilkar (PW-513), deposed about the recovery of

handgrenades from Mohmed Jabir Abdul Latif Mansoor (A-93).

However, he does not make any reference so far as the respondent

Fazal Rehman Abdul Khan (A-76) is concerned.


8.     The Designated Court after appreciating the entire evidence

came to the conclusion that there was nothing on record to show that

the respondent though facilitated sending Firoz @ Akram Amani

Malik (A-39) to Dubai, had any knowledge of the purpose of going to

Dubai or Pakistan for the simple reason that Firoz @ Akram Amani

Malik (A-39) himself disclosed that he was told in Dubai that he

would go to Pakistan and the purpose for going there would be

explained to him later on. The confessional statement of A-39 did not

reveal the involvement of the respondent in persuading A-39 to

undergo weapons' training in Pakistan.


9.     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


                                                                     8
                                                                    Page 8
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 or excluding relevant material or by taking into

consideration irrelevant/inadmissible material. The finding may also



                                                                   9
                                                                  Page 9
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.


10. We had been taken through the evidence by Shri Mukul Gupta,

learned senior counsel for the appellant, but we do not find any reason

to interfere with the cogent reasons given by the Special Judge. The

appeal lacks merit and is accordingly dismissed.




                                                                      10
                                                                    Page 10
              CRIMINAL APPEAL NO. 409 OF 2011


State of Maharashtra                                     ...Appellant


                                 Versus

Manjoor Qureshi & Ors.                               ... Respondents



11.    This criminal appeal has been preferred against the impugned

judgment and order dated 2.8.2007 passed by a Special Judge of the

Designated Court under the TADA in Bombay Blast Case No. 1/93,

acquitting the respondents of all the charges. The respondents had

been charged in addition to the common charge of conspiracy under

Section 3(3) TADA and Section 120B IPC, read with the other

provisions.    They were charged with knowingly abetting and

facilitating the commission of terrorist acts and acts preparatory to

terrorist acts as they had agreed to undergo weapons' training in

Pakistan in handling of arms and ammunition and explosives for

committing terrorist acts and for that purpose visited Dubai but could

not go to Pakistan as arrangement for training there could not be made.

They attended the conspiratorial meeting at Dubai alongwith

conspirators to plan the commission of terrorist acts.



                                                                        11
                                                                    Page 11
12.    Mohmed Iqbal Ibrahim S/o Shaikh Ibrahim (A-127) has died.

Thus, this appeal stood abated qua him.


13.    After conclusion of the trial, the Designated Court acquitted the

respondents of all the charges.

       Hence, this appeal.

14     Shri Mukul Gupta, learned senior counsel for the appellant-

State has submitted that the Designated Court has erred in acquitting

the respondents of the charge of conspiracy. The respondents had gone

to Dubai to go to Pakistan for having training to handle the arms and

ammunition and explosives and this is a matter of chance that they

came back as the training could not be arranged but the evidence on

record clearly established that they intended to have the training and

subsequently to participate in the terrorist activities. Therefore, the

appeal deserves to be allowed.


15.    Ms. Farhana Shah, learned counsel for the respondents has

submitted that there is nothing on record to establish that either of the

respondents had any idea or knowledge or they had been informed by

any other co-accused that they would be sent for training to Pakistan to



                                                                    12
                                                                  Page 12
handle the arms etc. and rather they had an impression that they would

be taught handling the arms to be used for self-defence. Thus, no

imputation of conspiracy can be established. The appeal lacks merit

and is liable to be dismissed.


16.    We have considered the rival submissions made by learned

counsel for the parties and perused the record.


17.    Confession of Shaikh Kasam @ Babulal Ismail Shaikh (A-109):

       His confession revealed that he was working as an Office Boy

in the construction company of Ijaz Khan in 1992. The said office was

closed after riots in Bombay in December 1992. Some persons namely

Munna, Karimullah, Shehjada used to come to the said construction

company of Ijaz and thus the accused developed acquaintance with

them. Ijaz used to travel between Bombay and Dubai. On 12.1.1993,

Mr. Ethesham (A-58) informed him that Ijaz had come from Dubai and

wanted to meet the respondent (A-109). The accused met Ijaz Khan at

the house of Haji Yakub in presence of Anwar. Ijaz told them that in

case something wrong happens to them they can talk to him over the

telephone. Subsequently, they left leaving Munna and Anwar there.

Yakub (AA) later told him that riots were increasing and he would take



                                                                  13
                                                               Page 13
them out of India for training and using revolvers for saving

themselves from the riots.       The respondent (A-109) brought his

passport from his house and delivered the same to Haji Yakub.

Subsequently, the respondent (A-109) went to Dubai alongwith Murad,

Ethesham, Shakil, Shahnawaz on 14.2.1993.

      Yakub Haji came to meet them and said that training could not

be given this time, and it would be done next time. They remained for

15 days in Dubai and their visa expired. They then came back to

Bombay. Before going to Dubai, Yakub asked them to take an oath by

placing their hands on the Quran that whatever they are doing, it was

for the sake of Islam and they would not fight with each other and

would not divulge their talks to others.


18.    Confession of Sultan-E-Rome Sardar Ali Gul (A-114):

       He was working as a driver with a Marwari at Walkeshwar.

After the demolition of Babri Masjid he lost his job because his

employer was afraid of him as he was a Muslim. The accused (A-14)

wanted to go to Saudi Arabia for search of work. Therefore, he got

his passport ready. In the month of January, 1993, he met Qamar

Khan. Ijaz Khan and Ethesham (A-58) talked with them for 5-10

minutes. Then Ijaz told him that he had to go to Ethesham as and


                                                                 14
                                                              Page 14
when he was called and he would be paid Rs.1,000/-, a pair of clothes

and shoes. Ethesham would train him in working a revolver.

       On 14.2.1993, he went to Dubai alongwith the others and

stayed there for 14 days without any work/training and came back to

India. He further disclosed that they were not given any training or any

lectures (Taqreer) in Dubai.


19.    Confession of Abdul Aziz Abdul Kader (A-126):

       He also accompanied the other co-accused to Dubai. He

corroborated the version of other co-accused for going to Dubai and

coming back to Bombay. Yeda Yakub advised him that he should

learn to handle the arms as there was tension prevailing all round and

the Muslims were being suppressed and beaten everywhere and

therefore such training was necessary for their self defence, especially

to face the Hindus. Muslims have suffered heavy losses. In case riots

occurred in future then by learning the handling of           weapons

Muslims can effectively deal with Hindus. When he (A-126) was in

Dubai he went to see a person who knew to his brother and during the

conversation he enquired from the respondent (A-126) the purpose for

which he had gone to Dubai. The respondent (A-126) told him that he

had come for taking training of handling of arms and on their return


                                                                    15
                                                                 Page 15
journey they would take some goods along with them to earn some

money in India. He cautioned the respondent (A-126) that the work

was not good and advised him to go back.


20.    Confession of Mohd. Iqbal Ibrahim (A-127):

       He corroborated the version of other co-accused and had

admitted going to Dubai but he was not aware of the purpose for what

he had been taken to Dubai. During their stay in Dubai, people used to

talk occasionally about weapons. After 10-14 days of reaching Dubai,

they came back to Bombay. He had been to Dubai three times earlier.

After coming back to India he came to know that he was taken to

Dubai for training in handling of arms.


21.    Confession of Murad Ibrahim Khan (A-130):

       He corroborated the version given by other co-accused in the

confessional statement that he had gone to Dubai. He further revealed

that one day when they were in Dubai, Shakil told him that he would

go to Pakistan for weapon training but the arrangement had not yet

been finalized. After a few days they came to know that they had been

taken for weapon training but arrangements could not be made and




                                                                  16
                                                               Page 16
they had to return to Bombay and on expiry of their visa they came

back.


22.     Confessional statement of Shaikh Mohmed Ethesham (A-58):

        He disclosed that he was a close associate of Yeda Yakub and

was involved in all kinds of smuggling activities. He revealed about

the smuggling of arms and said that on 7.2.1993 when he was at the

place of Hazi Yakub @ Yeda Yakub, and the latter informed him,

Akbar, Babulal and Shahnawaz that          Muslims had suffered a

considerable loss in the riots and that they had to go to Dubai for

training of arms and ammunition to protect themselves.           He,

Shahnawaz, and Babulal were ready to go to Dubai. Thus, they had

gone to Dubai but came back without having any training.


23.     Confession of Shahnawaz Khan (A-128):

        His confessional statement revealed that he had gone to Dubai

alongwith other co-accused. He came to know after going to Dubai

that they were going for arms' training to be held in Pakistan.

However, due to some reason arrangements could not be made for

training. Thus, he came to Bombay alongwith other co-accused namely




                                                                 17
                                                              Page 17
Iqbal, Etheshem, Babulal and Shahid on 1.3.1993 and the remaining

persons reached later on.


24.    The Designated Court after appreciating the entire evidence has

drawn a conclusion that the respondents may be under the impression

that they were being sent there for training of arms so that it can be

used in self defence and they came to know only when they were in

Dubai that they were being sent for training to Pakistan. However, the

training could not be finalized/arranged and they came back to

Bombay. Therefore, the learned Designated Court had drawn the

inference that as they did not have knowledge that they were going to

Pakistan for training in handling of arms they could not be held guilty.


25.    The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


26     We have gone through the entire record and we are of the view

that none of the respondents was aware of the intention of the

conspirators to send the respondents to Pakistan for training to deal

with the arms and ammunition rather they had been taken away to

Dubai on false pretext and had been misguided. Thus, we fully agree

with the inference drawn and conclusion reached by the Designated


                                                                    18
                                                                  Page 18
Court. We find no reason to interfere with the same. The appeal lacks

merit and is accordingly dismissed.




                                                                 19
                                                              Page 19
              CRIMINAL APPEAL NOS. 601 OF 2011


State of Maharashtra through CBI                   ...Appellant


                                  Versus

Krishna Sadanand Mokal & Ors.                   ... Respondents


27.     This criminal appeal has been preferred against the impugned

judgment and order dated 2.8.2007 passed by the Special Judge of the

Designated Court under the TADA, acquitting the respondents of all the

charges under TADA and Arms Act.


28      Facts and circumstances giving rise to this appeal are that all

the respondents had been working as police constables in the Police

Department of Bombay and at the relevant time, i.e., January 1993 were

posted as constables at Police Station, Shrivardhan. After the Bombay

blast on 12.3.1993, they had been charged for conspiracy in general as

well as under Section 3(3) TADA and other charges for assisting and

facilitating the accused persons to smuggle and transport the contraband

articles, i.e., arms and ammunition and permitting the said goods to be

taken further in lieu of bribe.




                                                                    20
                                                                  Page 20
      The case against the said respondents had been that on 8 th/9th of

January, 1993, the arms, ammunition and explosives were smuggled in

India and after the landing at Dighi Jetty when the contraband were

being transported to Bombay in trucks, the said trucks were intercepted

by the police of Shrivardhan Police Station headed by Inspector Patil

(A-116). The police checked those vehicles for 10-15 minutes and

permitted them to go after completing a detailed bargain with the

conspirators/accused and reaching the settlement of the huge amount of

Rs.7,00,000/- as a bribe. The accused did not have cash thus, they had

given 5 silver ingots as security which were subsequently returned by

the police officials to the accused persons after the negotiated amount

was paid. The respondents/constables were also put to trial alongwith

other co-accused (police officials) but they have been acquitted only on

the ground that there was no iota of evidence to show that the

respondents herein were also members of the Shrivardhan Police

Station which had intercepted those trucks.

      Hence, this appeal.


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

appellant-State has submitted that the respondents were police

constables posted at Police Station Shrivardhan and therefore, they


                                                                    21
                                                                 Page 21
were also the members of the party which intercepted the trucks

carrying the contraband.      The learned Designated Court failed to

appreciate the evidence on record and has wrongly acquitted the

respondents of the charges leveled against them.


30.     Ms. Farhana Shah, learned counsel appearing for the

respondents has submitted that it is nobody's case that all the police

force posted at Shrivardhan Police Station had gone to check/intercept

the trucks carrying the contraband. In the instant case, there is nothing

on record to show that either of the respondents was a member of the

party which intercepted the trucks carrying the contraband. Thus, the

appeal is liable to be dismissed.


31.     We have considered the rival submissions made by learned

counsel for the parties and perused the record.


32.     In the confession of Mohmed Kasam Lajpuria (A-136) recorded

by Superintendent of Police, CBI at New Delhi Camp, Mumbai, he

disclosed that he was a close associate of Tiger Memon (AA) etc. and

had been indulged in various criminal activities including smuggling.

He had been participating in the landings and facilitating the

transportation of the contraband and smuggled goods.         In January,


                                                                     22
                                                                  Page 22
1993, he planned a landing alongwith Mohd. Dossa, Salim Kutta (A-

134), Firoz, Qyum Sajani, Arif Lambu and the landing took place at

Dighi Jetty. After getting the contraband goods from the sea to the

seashore the same were loaded in two trucks arranged by Uttam Potdar

(A-30). The trucks were intercepted by police headed by Inspector Patil

and 6-7 constables from P.S. Shrivardhan. Inspector Patil (A-116)

asked Saleem and Firoz whether they were landing and transporting the

contraband without making any payment to the police. Meanwhile,

Uttam Potdar (A-30) also came alongwith one Custom Officer named

Gurav (A-82) in a jeep. Uttam Potdar (A-30) spoke to the police people

and it was decided that a sum of Rs.8,00,000/- should be paid to the

police. As the accused persons did not have Rs.8,00,000/- in cash, the

police kept 5 silver ingots with them as a security. Inspector Patil (A-

116) asked them to take the silver ingots back after making the payment

in cash.


33.        Uttam Potdar (A-30) revealed that he was a very close associate

of smugglers including Tiger Memon (AA) and Mechanic Chacha (A-

136) etc., and had been participating in landing and transportation of the

contraband. He was called by Shri R.K. Singh, Assistant Collector (A-

102) on 4.12.1993 through a custom sepoy and asked about the earlier


                                                                      23
                                                                   Page 23
day's landing. Shri Gurav, Custom Inspector (A-82) also had contact

with the said accused (A-30) and after negotiating, it was decided to

settle the issue of money. Accordingly, the matter was settled and

amount was paid to the custom officers. This accused further revealed

the mode of payment per landing to the Shrivardhan Police Station as

well as the custom police. He revealed the incident on 9.1.1993 when

the trucks were intercepted by the Shrivardhan Police. The vehicles

were checked by two Hawaldars, named Mali and Muneshwar. He fully

corroborated the statement of Mechanic Chacha (A-136) that as they

had no money to pay to the police, they paid the silver ingots as

security.


34.     Dilip Pansare (PW.97) deposed that he was working as a

mechanic in the State Transport Corporation at Shrivardhan Depot. He

was close associate of Uttam Potdar (A-30). He accompanied Uttam

Potdar (A-30) on 9.1.1993 when the vehicles carrying the contraband

after landings were intercepted by Shrivardhan Police Station.       He

deposed that the vehicles after interception were thoroughly checked by

two constables. The police team was headed by Inspector Patil (A-116)

and there were 6-7 constables with him. He also gave full details of

negotiation/settlement of the amount of bribe for releasing the vehicles


                                                                    24
                                                                 Page 24
and giving 5 silver ingots as security as they did not have the cash.

Thus, he corroborated the statement of Uttam Potdar (A-30) as well as

of Mechanic Chacha (A-136).


35.     In the confessions of Dawood Phanse (A-14), he has deposed

that he was a landing agent and was facilitating transportation of

smuggled goods of various smugglers in partnership with Sharif Abdul

Gafoor Parkar (A-17) including Tiger Memon (AA). This accused (A-

14) and Dadabhai (A-17) corroborated the version so far as this case is

concerned only to the extent of payment of money to Shrivardhan

Police Station for two landings. Mohd. Salim (A-134) corroborated the

case to the extent of interception of vehicles carrying the contraband on

9.1.1993 by Shrivardhan Police at Gongdhar Phata. The police team

consisted of one Inspector and few constables.


36.     If the evidence of all the witnesses is read conjointly, it

becomes evident that none of the witnesses had named either of the

respondents. The other persons of the police team who had been named

stood convicted. The respondents have been acquitted on the ground

that in absence of Test Identification Parade or their identification by

any of the witnesses/accused in the court, it was not safe to make a



                                                                     25
                                                                  Page 25
guess work that they or either of them could also be member(s) of the

said police team which intercepted the contraband. The evidence on

record reveal that police team headed by Inspector Patil was having 6-7

constables. There is nothing on record on the basis of which it could be

assumed that the respondents were the members of the said team. It is

nobody's case that the total strength of the Shrivardhan Police Station

was 7 or 8, so it can be presumed that all except one or two might have

come. The Sarpanchas of 7 villages in close proximity, deposed in

court to falsify the alibi taken by the respondents that they were on

police patrolling in their villages. Statements made by the Sarpanchas

that none of the respondents had visited their village on patrolling

cannot be a proof that the respondents were members of the team,

which intercepted the said trucks.


37.     The learned Designated Court dealt with the issue elaborately

and came to the conclusion that there was no material to connect the

respondents with the aforesaid incident and it was not safe to presume

that the respondents were also the members of the police team which

intercepted the said trucks carrying contraband.




                                                                    26
                                                                 Page 26
38.     The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


39.     In view of the above, we do not see any cogent reason to

interfere with the impugned judgment. The appeal lacks merit and is,

accordingly, dismissed.




                                                                27
                                                             Page 27
              CRIMINAL APPEAL NO. 404 OF 2011


State of Maharashtra through CBI                         ...Appellant

                                Versus

Moiddin Abdul Kadar Cheruvattam                        ... Respondent


40.   This criminal appeal has been preferred against the impugned

judgment and order dated 2.8.2007, passed by the Special Judge of

the Designated Court under the TADA in the Bombay Blast Case No.

1/93, acquitting the respondent of all the charges.


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

A.    In addition to the main charge of conspiracy, he was also

charged under Section 3(3) TADA, for collecting the funds for

terrorist activities and distributing the same for propaganda against

Hindus after the riots in Bombay after demolishing of Babri Masjid in

December 1992.

B.    The Special Judge under TADA has discarded all the

confessional statements on the ground that the officer who recorded

the confessional statement of the respondent and other co-accused did

not fulfill the requirement of law by giving any warning to the said



                                                                      28
                                                                 Page 28
persons telling (i) that they were not bound to make a confession and

(ii) if made, it could be used against them as evidence, and thus

acquitted them of all the charges.

      Hence, this appeal.


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

appellant has tried to impress upon us that undoubtedly the warning

had not been administered in the first part of any of the said

confessional statements but only after reflection period, when the said

persons again appeared for making their respective statements they

had been warned properly. If Part I and Part II of their statements are

read together, it is evident that the said accused persons were fully

aware that they were not bound to make the confession and if made, it

would be used against them.


43    On the contrary, learned counsel for the respondent (A-48) has

opposed the appeal contending that before the confession is recorded,

Section 15 TADA and Rule 15(3) of the TADA Rules, require that the

maker of the statement must be explained that he was not bound to

make such statement and if so made, would be used against him.

Thus, no interference is warranted.



                                                                   29
                                                                Page 29
44.    We have considered the rival submissions made by learned

counsel appearing for the parties and perused the record.


45.    Evidence against the respondent (A-48):

(a)    Confessional statement of respondent (A-48)
(b)    Confessional statement of Ahmed Shah Khan Mubarak Shah @
       Salim Khan Durani @ Salim Tonk (A-20)

(c)    Confessional statement of Aziz Ahmed Mohammed Ahmed Shaikh (A-
       21)

(d)    Confessional statement of Ismail Abbas Patel (A-80)

46.    First part of the confessional statement of the respondent (A-48)

recorded on 14.5.1993, reads as under:

        "My name is Mohiuddin Abdul Kadar, age 30 years,
      occupation Sales Representative, Dubai, Place of
      residence: 52/5, Zakaria Masjid St., Mumbai-9. I passed
      S.S.C. in the year 1978.
        I myself informed the Inspector of Crime Branch that I
      wanted to make the confessional statement voluntarily. I
      was arrested by the Bombay Police on 3.4.93 from my
      residence at Dongri in connection with the Bombay bomb
      Blast case. For this reason, I wanted to give my
      confessional statement.
        I have been explained about my making the confessional
      statement that the confessional statement, which I am
      going to make will be used against me.
        In this connection, I was given 48 hours. For reflection, I
      will be produced on 17.5.93, if I want to make the
      confessional statement."

      Sd/-                                            Sd/-
      DCP                                             Accused"


                                                                        30
                                                                      Page 30
47.   Similarly the first part of the confessional statements of co-

accused Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @

Salim Tonk (A-20), Aziz Ahmed Mohammed Ahmed Shaikh (A-21)

and Ismail Abbas Patel (A-80) are very cryptic. Further, there is no

explanation or warning therein as required by law. Therefore, such

confessions are liable to be discarded.


48.   This Court in S.N. Dube v. N.B. Bhoir & Ors., (2000) 2 SCC

254 held that the compliance of Section 15 TADA and Rule 15 of

TADA Rules, is mandatory. It is necessary before making of the

confessional statement that the accused must be warned that

confessional statement if made will be used against him and further

that he is not bound to make the same.

      "Writing the certificate and making the memorandum
      are thus made mandatory to prove that the accused
      was explained that he was not bound to make a
      confession and that if he made it it could be used
      against him as evidence, that the confession was
      voluntary and that it was taken down by the police
      officer fully and correctly. These matters are not left
      to be proved by oral evidence alone. The requirement
      of the rule is preparation of contemporaneous record
      regarding the manner of recording the confession in
      the presence of the person making it."




                                                                  31
                                                                Page 31
      The court further clarified that a confessional statement would

not be adversely affected if the certificate and memorandum are

mixed or the format so prescribed is not used by the recording officer.


49.   This Court in Lal Singh v. State of Gujarat & Anr. , (2001) 3

SCC 221 held that:

      "23. In view of the settled legal position, it is not
      possible to accept the contention of learned Senior
      Counsel Mr Sushil Kumar that as the accused were in
      police custody, the confessional statements are either
      inadmissible in evidence or are not reliable.
      Custodial interrogation in such cases is permissible
      under the law to meet grave situation arising out of
      terrorism unleashed by terrorist activities by persons
      residing within or outside the country. The learned
      counsel further submitted that in the present case the
      guidelines suggested by this Court in Kartar Singh v.
      State of Punjab (1994) 3 SCC 569, were not
      followed. In our view, this submission is without any
      basis because in the present case confessional
      statements were recorded prior to the date of decision
      in the said case i.e. before 11-3-1994. Further,
      despite the suggestion made by this Court in Kartar
      Singh case, the said guidelines are neither
      incorporated in the Act nor in the Rules by
      Parliament. Therefore, it would be difficult to accept
      the contention raised by learned counsel for the
      accused that as the said guidelines are not followed,
      confessional statements even if admissible in
      evidence, should not be relied upon for convicting the
      accused. Further, this Court has not held in Kartar
      Singh case that if suggested guidelines are not
      followed then confessional statement would be
      inadmissible in evidence. Similar contention was
      negatived by this Court in S.N. Dube (supra), by

                                                                   32
                                                                 Page 32
      holding that a police officer recording the confession
      under Section 15 is really not bound to follow any
      other procedure and the rules or the guidelines
      framed by the Bombay High Court for recording the
      confession by a Magistrate under Section 164 CrPC;
      the said guidelines do not by themselves apply to
      recording of a confession under Section 15 of the
      TADA Act and it is for the court to appreciate the
      confessional statement as the substantive piece of
      evidence and find out whether it is voluntary and
      truthful. Further, by a majority decision in State v.
      Nalini, (1999) 5 SCC 253, Court negatived the
      contentions that confessional statement is not a
      substantive piece of evidence and cannot be used
      against the co-accused unless it is corroborated in
      material particulars by other evidence and the
      confession of one accused cannot corroborate the
      confession of another, by holding that to that extent
      the provisions of the Evidence Act including Section
      30 would not be applicable. The decision in Nalini
      (supra) was considered in S.N. Dube (supra). The
      Court observed that Section 15 is an important
      departure from the ordinary law and must receive
      that interpretation which would achieve the object of
      that provision and not frustrate or truncate it and that
      the correct legal position is that a confession
      recorded under Section 15 of the TADA Act is a
      substantive piece of evidence and can be used against
      a co-accused also."


50.    In Bharatbhai v. State of Gujarat , (2002) 8 SCC 447, this

Court held:

      "46. In view of the aforesaid discussion, our
      conclusions are as follows:
         A. Writing the certificate and making the
         memorandum under Rule 15(3)(b) is mandatory.


                                                                   33
                                                                 Page 33
         B. The language of the certificate and the
         memorandum is not mandatory.
         C. In case the certificate and memorandum is
         not prepared but the contemporaneous record
         shows substantial compliance with what is
         required to be contained therein, the
         discrepancy can be cured if there is oral
         evidence of the recording officer based on such
         contemporaneous record.
         D. In the absence of contemporaneous record,
         discrepancy cannot be cured by oral evidence
         based on the memory of the recording officer.
      47. In the present case, admittedly Rule 15(3)(b) has
      not been complied. No memorandum as required was
      made. There is also no contemporaneous record to
      show the satisfaction of the recording officer after
      writing of confession that the confession has been
      voluntarily made. The confession of Accused 7 does
      not even state that it was read over to him. Thus, the
      confessional statements are inadmissible and cannot
      be made the basis of upholding the conviction. Once
      confessional statements are excluded the conviction
      cannot be sustained."


51.   The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


52.   In view of the above, we are of the considered opinion that the

learned Designated Court rightly rejected the confessional statement

made by the respondent and the co-accused as the first part of these

statements has not been recorded in consonance with the requirement

of statutory provisions.


                                                                 34
                                                               Page 34
      We concur with the view taken by the Special Judge. The

appeal lacks merit, and is accordingly, dismissed.




                                                         35
                                                       Page 35
              CRIMINAL APPEAL NO.405 OF 2011


State of Maharashtra through CBI                     ...Appellant


                                Versus


Asfaq Kasam Hawaldar                                ... Respondent


53.     This appeal has been preferred against the final judgment and

order dated 2.8.2007 passed by the Special Judge of the Designated

Court under the TADA in Bombay Blast Case No.1 of 1993, acquitting

the respondent (A-38) charged for larger conspiracy and under Section

3(3) TADA.


54.     In addition to the charge of conspiracy, Respondent (A-38) has

also been charged for the commission of offences punishable u/s 3(3)

TADA.


55.     The case of the prosecution against him has been that:

A.      The accused (A-38) along with his co-conspirators participated

in the landing and transportation of arms, ammunition and explosives at

Shekhadi, Taluka: Shrivardhan District: Raigad, which were smuggled




                                                                     36
                                                                 Page 36
into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon

(AA) and associates for being used in commission of terrorist acts.

B. That the accused (A-38) transported arms, ammunition and

explosives which took place on 7.2.1993 which were smuggled into the

country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his

associates for commission of terrorist acts in motor truck no. MHT

6745 driven by this accused from Shekhadi to Wangni Tower.

C.      The Special Judge after conclusion of the trial acquitted the

respondent of all the charges.

        Hence, this appeal.


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

State has submitted that as the respondent had been the driver of the

vehicle which carried the contraband, i.e., arms, ammunition and

explosives and therefore, there was no reason for his acquittal by the

Designated Court.


57.     Per contra, Ms. Farhana Shah, learned counsel appearing for the

respondent has submitted that there is nothing on record to show that

the respondent was driving the alleged vehicle on that particular day.

The registered owner of the vehicle was neither made an accused nor a



                                                                      37
                                                                  Page 37
witness in the case and no material had been placed on record to show

that on the fateful day the respondent was driving the vehicle. Thus, the

findings of the learned Designated Court do not require any

interference.


58.     We have considered the rival submissions made by learned

counsel for the parties and perused the record.


59.     Confessional statement of Tulsi Ram Dhondu Surve (A-62):

        He revealed that he was working as a Chowkidar at Wangni

 Tower and came in contact with the smugglers and facilitated their

 activities many a times for loading and unloading the contraband

 smuggled by them. He (A-62) used to serve them tea and food. On

 being asked by Dawood he (A-62) had agreed to help the smugglers in

 loading and unloading at the said tower for consideration. On

 9.1.1993 at 8 hrs. in the night one Maruti car entered the premises of

 the tower and Sarfaraz (A-55), son of Dawood Phanse got down from

 the Car and asked him (A-62) to prepare tea. He prepared tea and

 served the same to 9-10 persons. Tiger Memon (AA) was also with

 them. After having tea they went away and came back at 12 o'Clock

 in the night with one truck and a tempo, a jeep and a Maruti car.



                                                                     38
                                                                  Page 38
Tiger Memon (AA) and his associates Iqbal, Anwar, Munna, Sharif

alighted from the vehicles and then the contraband was reloaded from

the truck to the tempo. Tiger Memon (AA) had given his men guns

and pistols in their hands and after reloading the contraband they all

went away.     On 7.2.1993, he came to know through Sharif that

Dawood Phanse's (A-14) contraband was about to come.               The

accused (A-62) informed his other colleagues at about 9.30 in the

night. He came alongwith More from the tower and waited at the

Kuchha road for them. After sometime a truck, followed by three

jeeps, a rickshaw and two motorcycles came there. Subsequently, a

truck and a jeep carrying some goods also came to the tower. The

truck carrying the goods was owned by one Hasan Adhikari, r/o

Mhasla and was driven by Asfaq Kasam Hawaldar (A-38).

Alongwith the truck, Dawood Phanse (A-62), Dadamiya Parkar (A-

17), Sharif Adhikari, Abdul Gharatkar were there in a jeep. Tiger

Memon and his above-mentioned associates carrying guns and pistols

got down from another jeep. Sarfaraz Phanse (A-55), Khalil Nazir

and Sajjad Nazir kept the watch during this period. After transferring

the goods from one vehicle to another all vehicles left from there. The

wooden packings of the goods were burnt in the ditch near the tower.



                                                                   39
                                                                Page 39
60.     Deposition of Vyankatesh Hirba (PW.588) stated that he made

the recovery of the truck used in the said offence.


61.     The Designated Court has acquitted the respondent (A-38) of

the said charges only on the ground that the truck was owned by Hasan

Adhikari and the prosecution did not consider it proper to make Hasan

Adhikari as an accused or as a witness to find out as to whether the

respondent (A-38) had been a regular driver with him and as to whether

on that particular date he was on duty. No person had identified him as

he was driving the said vehicle on the said date. The confessional

statement of Tulsi Ram Dhondu Surve (A-62) was not corroborated by

any other witness/accused.


62.     The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


63.     We find no cogent reason to interfere with the order passed by

the Designated Court and the appeal is accordingly dismissed.




                                                                   40
                                                                Page 40
              CRIMINAL APPEAL NO.394 OF 2011


State of Maharashtra                                   ...Appellant


                                 Versus


Ismail Abbas Patel                                   ... Respondent



64.     This appeal has been preferred against the final judgment and

order dated 2.8.2007 passed by the Special Judge of the Designated

Court under the TADA in Bombay Blast Case No.1 of 1993, acquitting

the respondent charged under Section 3(3) and Section 120B IPC and

other provisions.


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

A.      In addition to main charge of conspiracy, the respondent was

charged as he participated in the conspiratorial meeting at Dubai, and

made the arrangement and financed the trip for his co-accused Shaikh

Aziz to Dubai. Thus, he was charged under Section 3(3) TADA and

various provisions of IPC.




                                                                        41
                                                                   Page 41
B.      The Designated Court after conclusion of the trial acquitted the

respondent of all the charges.

        Hence, this appeal.


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

State has submitted that there was ample evidence against the

respondent of his involvement in the aforesaid offence. However, the

learned Designated Court has wrongly acquitted him. Thus, the appeal

deserves to be allowed.


67.     Per contra, learned counsel appearing for the respondent has

opposed the appeal contending that the findings of fact recorded by the

court below are based on evidence and by no means, the same can be

held to be perverse. Thus, no interference is called for.


68.     We have considered the rival submissions made by learned

counsel for the parties and perused the record.


69.     Evidence against the respondent is his own confession recorded

under Section 15 TADA and the confessions of co-accused Ahmed

Shah Khan Durrani (A-20) and Aziz Ahmed Mohd. Ahmed Shaikh (A-

21).



                                                                    42
                                                                 Page 42
70.     The confession of the respondent and other co-accused i.e. A-

20 and A-21 has been discarded by the Designated Court for the reason

that it had not been recorded strictly in accordance with the provisions

of Section 15 TADA and Rule 15 of TADA Rules, 1987.                  The

confessional statement of these accused had been recorded in two parts

and there had been some intervening period for re-consideration. While

recording the first part of the confession, the officer recording the

statement did not inform the accused that he was not bound to make the

confession and further that in case he makes it, it would be used against

him as evidence.


71.     In the first part of the confessional statement of the respondent

as his particulars have been described and further stated that he was

giving his confession of his own accord. It was further recorded that

the accused had been given 48 hours to reconsider.


72.     Even in the second part of the confession which was recorded

on 4.5.1993 the respondent had not been warned that he was not bound

to make the confession. Though he was asked as to whether he was

making the statement under any pressure and whether he was willing to

make the confession but even then he was not warned that he was not



                                                                     43
                                                                  Page 43
bound to make the statement. The certificate issued by the officer

regarding the confessional statement mentions the belief of the

recording officer that the statement was signed of his own will.


73.     Exactly the same is the position so far as the confessional

statements of co-accused Ahmed Shah Khan Durrani (A-20) and Aziz

Ahmed Mohd. Ahmed Shaikh (A-21) are concerned.


74.     The Designated Court has discarded the confessional

statements as the same was not in accordance with the said provisions.

We concur with the finding of the Designated Court in view of the law

laid down by this court in S.N. Dube (supra), where it was held that the

compliance of Section 15 and Rule 15 of TADA, 1987 is mandatory.

[Vide: Lal Singh (supra) and Bharatbhai (supra)].


75.     As there is no admissible evidence on record connecting the

respondent (A-80) to the crime, he has rightly been acquitted by the

court below.    Thus, no interference is required and the appeal is

accordingly dismissed.




                                                                     44
                                                                   Page 44
               CRIMINAL APPEAL NO.1033 OF 2012


State of Maharashtra                                    ...Appellant


                                  Versus


Rukhsana Mohd. Shafi Zariwala                         ... Respondent



76.      This appeal has been preferred against the final judgment and

order dated 2.8.2007, passed by the Special Judge of the Designated

Court under the TADA in the Bombay Blast Case No.1 of 1993,

acquitting the respondent of all the charges.


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

          In addition to the main charge of conspiracy, the case against

the respondent had been that she accompanied Ashrafur Rehman (A-71)

and helped in the transportation of bags containing 85 handgrenades,

350 electric detonators and 3270 live cartridges of AK-56 rifles from

Jogeshwari to Musafirkhana, Bombay.             She thereby aided and

facilitated the distribution of fire arms, ammunition and explosives

which were smuggled into India by the co-accused for terrorist

activities.


                                                                         45
                                                                    Page 45
      After conclusion of the trial, the Designated Court acquitted the

 respondent of all the charges.

        Hence, this appeal.


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

appellant-State has submitted that the respondent had accompanied her

husband while carrying the arms, ammunition and explosives, and thus,

she was guilty of facilitating the distribution of arms, ammunition and

explosives etc. Hence, the Designated Court erred in acquitting her of

all the charges.


79.     Ms. Farhana Shah, learned counsel appearing for the

respondent has submitted that the Designated Court has examined the

entire evidence and came to the conclusion that she had been

unnecessarily dragged in the trial. She was not involved anywhere and

merely being the wife of absconding accused, she had been forced to

face the trial. Considering the parameters laid down by this Court to

entertain the appeal against acquittal, the case is not worth for

interference. Thus, the appeal is liable to be dismissed.


80.     We have considered the rival submissions made by learned

counsel for the parties and perused the record.


                                                                   46
                                                                Page 46
81.     Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

revealed about the incident of transportation of the contraband arms and

ammunition from Jogeshwari to Musafirkhana. He disclosed that he

was a close associate of Imtiyaz and Tiger Memon. He knew Shafi

Zariwala, the husband of the respondent who was working as driver of

Tiger Memon very well. He revealed his participation on various times

in landing and transportation. On 11.3.1993 at 12 noon he went to the

house of Tiger Memon. At that time Asgar was also present there.

Tiger Memon (AA) gave him two suit cases, two handbags (just like

neck hanging bags) and one big suit case and asked him to go to

Musafirkhana. He and Asgar took all the goods and kept the same in

room no.17 of Musafirkhana and their curiosity got the best of them and

they opened the bags and found that one bag contained AK-56 rifles

and the other bag contained some handgrenades and pen shaped pipes.

They closed the bag and went to Shafi's house and from there went to

Mahim. After some time, Shafi also came by jeep and took him (A-12)

to his sister-in-law's house at Jogeshwari. Shafi's wife (respondent

herein) was also there.      Shafi kept 2 AK-56 rifles and some

handgrenades in one bag and in the bag he kept some pistols there.

The accused (A-12), Shafi, his wife Rukhsana (respondent) and his



                                                                    47
                                                                 Page 47
sister-in-law all left for Mahim at about 8.30 P.M. Shafi dropped them

at Mahim and told them to go to Musafirkhana by a taxi and keep those

bags in room no.17 and after that came to Shafi's house. He explained

that the goods had been kept at Musafirkhana on the instruction of

Tiger Memon (AA). He        revealed that after the Bombay Blast on

12.3.1993 he had shifted the contraband from room nos.16 and 17 to the

lavatory and further how the recovery was made.


82.    So far as the incident of transporting the goods from Jogeshwari

to Musafirkhana is concerned, Ashrafur Rehman Azimulla Shaikh (A-

71) revealed that he had booked two rooms i.e., Room Nos.16 and 17

on the first floor in Musafir Khana.        On the intervening night of

11.3.1993 and 12.3.1993 at about 1.00 a.m. Tiger Memon (AA) called

him on telephone and asked him to reach Musafirkhana. Tiger Memon

met him there. There were three big suit cases and one small suit case,

two hand bags, three or four plastic bags containing cartridges, seven

machine guns and seven small pistols etc.

      He has given some reference to this incident, however, his

statement was discarded by the Designated Court in view of the fact

that the officer who recorded his statement did not meet the statutory




                                                                   48
                                                                 Page 48
requirement of giving him the statutory warning that he was not bound

to make his confession and if made it would be used against him.


83.     We have gone through his confessional statement. No such

requirement had been ensured and, thus, the same has rightly been

rejected by the court below.


84.     The Special Judge acquitted the respondent on the grounds:

        "(a) That there is no corroborative material
        available to support the contents of the confession
        of A-12 Parvez Nazir Ahmed Shaikh and further
        no recovery has been affected from room No. 17 of
        the Musafirkhana.

        (b) That the confession made by A-71 Ashrafur
        Rehman in support of A-12 Parvez Nazir Ahmed
        Shaikh's confession is inadmissible because it was
        not recorded by the Deputy Commissioner of
        police (hereinafter referred to as DCP) by
        following the statutory procedure and that A-71
        Ashrafur Rehman was not given the requisite
        warning that he was not bound to make confession.
        Further, the requisite certificate/memorandum as
        prescribed in Rule 15 (3) of TADA(P) Rules, was
        also not recorded".


 85.    The parameters laid by this Court in entertaining the appeal

 against the order of acquittal have to be applied.




                                                                     49
                                                                Page 49
86.   The only allegation against the respondent had been that she

had accompanied her hushand (AA) while he carried the arms,

ammunition and explosives. Further, there is nothing on record to

show that she had any knowledge of such arms, and the purpose for

which the same had been brought. Further, the sister-in-law of the

respondent was neither made the accused nor a witness. Her husband

is still absconding. In such a fact-situation, the findings recorded by

the learned Designated Court do not warrant any interference. The

appeal lacks merit, and is accordingly dismissed.




                                                                   50
                                                                Page 50
              CRIMINAL APPEAL NO. 594 OF 2011


The State of Maharashtra                               ...Appellant

                                 Versus

Sayyed Ismail Sayyed Ali Kadri                        ... Respondent


87.    This appeal has been preferred against the impugned judgment

and order dated 2.8.2007 passed by the Special Judge of the

Designated Court under the TADA for Bombay Blast, Greater

Bombay, in Bombay Blast Case No. 1/1993, acquitting the respondent

(A-105) of all the charges.


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

       In addition to the main charge of conspiracy, the respondent

was also charged for having abetted and knowingly and intentionally

facilitating the commission of terrorist acts in effecting the landing of

contraband goods such as arms, ammunition and explosives at Dighi

Jetty on 9.1.1993. He was further charged for concealing contraband at

his house and also in the mango grove of Abdul Razak Subedar and

further for his involvement in disposal of the said articles at Kandal

Gaon Creek.




                                                                       51
                                                                  Page 51
89.    The Special Judge after conclusion of the trial, acquitted the

respondent of all the charges.

       Hence, this appeal.


90.    Mr. Mukul Gupta, learned senior counsel appearing for the

appellant has submitted that the respondent being father of Shabir

Sayyed Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri (A-133)

(dead after being convicted by the Special Judge) was a party to

conspiracy and of the plan of committing terrorist acts and was fully

aware as the contraband had been concealed in his house with his

consent and connivance. He had also participated when the contraband

arms and ammunition were shifted from his house to mango grove of

Abdul Razak Subedar and concealed there by digging the earth. He

was involved in disposal of the said articles in the creek. The Special

Judge has wrongly given the benefit of doubt to him. Thus, the appeal

deserves to be allowed.


91.    On the contrary, Ms. Farhana Shah, learned counsel appearing

for the respondent has submitted that even if his sons Shabir Sayyed

Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri (A-133) had been

involved in the offence, there is nothing on record on the basis of



                                                                   52
                                                                Page 52
which it could be held that the respondent had committed any offence.

More so, he had been in jail for 2 ½ years during the trial. He is 70

years of age, old and bed ridden person. The incident occurred 20

years ago, so it is not a case warranting interference against the order

of acquittal.


92.    We have considered the rival submissions made by learned

counsel for the parties and perused the record.


       Respondent accused (A-105) did not make any confession.


Confession of Faki Ali Faki Ahmed Subedar (A-74) :

93.    The confessional statement of Faki Ali Faki Ahmed Subedar

(A-74) revealed that Shabir had approached him in the 2nd/3rd week of

March, 1993 for help as Feroz Khan had come from Bombay and told

him that after the riots the situation was very bad in Bombay and some

boxes containing fire arms and bags containing cartridges were to be

dumped in the creek. He asked for help taking the said articles in the

boat. The acccused (A-74) agreed. Shabir, his brother Jamir (A-133,

since dead), Abdulla Surti and Gambas (A-81) took out three wooden

boxes and 6 green coloured bags kept under the straw and loaded them

in a boat lying near the shore of the creek and went in the water


                                                                    53
                                                                 Page 53
towards Kandalwada creek. The next day, Shabir came and told him

that certain arms, ammunition and cartridges were to be hidden in the

mango grove and he wanted the said accused to help him. The

accused went along with him. At that time, Gambas, Abdulla Surti,

Jamir and Jamir's father were there in his house. After reaching there,

they took out 13 coloured bags containing cartridges and guns wrapped

in plastic paper and kept there in three bundles from underneath the

straw. These articles were put in the pit prepared earlier in the mango

orchard of Abdulla Razak Subedar who was living in Nairobi at the

time and the pit was covered with soil.

       After about a month, he was interrogated by the police, wherein

he disclosed about the said 13 green coloured bags containing

cartridges and three bundles containing guns had been hidden in the

mango orchard of Abdul Razak Subedar. The hidden material was

recovered from the said mango grove and it contained 4 country made

guns, 12 foreign made guns, 36 magazines and 26 cartridges.

Confession of Jananrdan Pandurang Gambas (A-81):

94.    He disclosed that he was not able to maintain a good business

so some smugglers persuaded him to purchase one new boat and

indulge in transportation of smuggled goods particularly silver and



                                                                   54
                                                                Page 54
gold through the sea. Shabir used to give him Rs.1000/- for such

activities. On 2.12.1993, he was asked by Shabir Kadri to come to the

Jetty at around 9.00 p.m.,      for unloading silver and gold. So he

participated in the said landing and brought the goods to the sea shore

with the help of Mohd. Chacha (A-136) and Uttam Potdar (A-30) and

for that many persons had helped and Uttam Potdar (A-30) gave Rs.

5,000/- to each and every person for their assistance.         After the

Bombay Blast, one day Jamir (A-133, since dead) and his brother

Shabir called him (A-81) at Agarwada and he was told that goods

unloaded on the last occasion contained guns and explosive substances

i.e. "gola barood" and had to be hidden beneath the ground and he was

directed to remain present in the mango grove after dinner and dig the

pit for hiding the contraband. Accordingly, a pit was prepared and

three boxes each containing 4 rifles wrapped in gunny bags and 26

boxes of thermal packing were buried in the ground. He was paid

Rs.1,000/- for that job. Shabir threatened him not to disclose the fact to

anyone. When these articles were buried, Shabir Jamir, Faki Ali Faki

Chacha, Abdulla Surti, Sayyed Ismail Kadri, father of Shabir were

also present.




                                                                     55
                                                                   Page 55
95.    The recovery of the said material had been made at the instance

of Faki Ali Faki Chacha (A-74) from the mango grove.


96.    After appreciating the aforesaid evidence the Special Judge

came to the conclusion that the respondent (A-105) had not made any

confession. So far as the confession of Faki Ali Faki Chacha (A-74) is

concerned, it contained reference regarding the presence of one father,

but the same does not specifically reveal A-105 being person while the

goods were being concealed after taking them from the house of the

respondent-accused to the mango grove.       The same conclusion was

drawn regarding the confession of Jananrdan Pandurang Gambas (A-

81). He (A-81) made a passing remark revealing the presence of

respondent A-105 at the relevant time. Still the same specifically failed

to depict any act committed by him in relation with the contraband

goods. More so, there seems to be some contradiction and variance in

the sequence of events as given in the aforesaid confessions. Thus, it

was difficult to accept that the said material in confession of the co-

accused can be accepted without there being any independent

corroboration, though the corroboration was required only on material

points and not on each and every point. The confessional statement of

the aforesaid accused particularly Faki Ali Faki Chacha (A-74) and


                                                                    56
                                                                  Page 56
Jananrdan Pandurang Gambas (A-81) cannot be said to be cogent

enough for establishing involvement of the respondent (A-105) in

commission of the acts amounting to a criminal offence required to be

strictly proved.


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

appeal against the order of acquittal have to be applied.


98. In the instant case, there is no evidence on record to show that the

respondent had been involved in the crime in any manner. If his sons

had indulged in the offence, his mere presence in his house, where the

contraband had been hidden, would not make the respondent

responsible.

       We do not find any cogent reason to interfere with the impugned

judgment and order. The appeal lacks merit and is accordingly

dismissed.




                                                                    57
                                                                 Page 57
               CRIMINAL APPEAL NO. 402 of 2011


State of Maharashtra                                ....Appellant


                                 Versus

Mohd. Ahmed Mansoor                                 ... Respondent


99.   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 in the Bombay Blast Case No. 1 of 1993. The

respondent has been acquitted of all the charges.


100. In addition to the general charge of conspiracy, the respondent

was charged under Section 3(3) TADA.

101. After conclusion of the trial, the Designated Court acquitted the

respondent of all the charges.

      Hence, this appeal.


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

State argued that the respondent received the co-accused at Dubai and

facilitated their stay at Dubai and further facilitated their transit to

Pakistan where they took training for handling of arms and

ammunition etc. When co-accused came back from Pakistan through


                                                                      58
                                                                    Page 58
Dubai, their transit and stay was again facilitated by him. Therefore,

his acquittal of all the charges deserves reversal.


103. Ms. Farhana Shah, learned counsel appearing for the

respondent has submitted that there is no iota of evidence showing

involvement of the respondent in any overt act or conspiracy. The

well reasoned judgment of the Designated Court does not warrant

interference by this court.


104. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

      The respondent did not make any confessional statement.


Evidence against the respondent :

Confessional statement of Mohd. Hanif Mohd Usman Shaikh (A-92):

105. The accused (A-92) revealed that he got a passport in the year

1987 and visited Dubai and other gulf countries several times prior to

Bombay Blast. During the riots in Bombay in December, 1992 and

January, 1993, he was working as the driver of Salim Kurla. Salim

Kurla asked A-92 to go to Dubai. A-92 agreed and he was paid Rs.

1000/- in cash and Salim Kurla agreed to arrange his ticket etc. Ticket

of A-92 to Dubai was arranged by Salim Kurla as was done by him


                                                                   59
                                                                Page 59
for Sayeed, Usman and Ibrahim. All of them reached Dubai. There

two persons named Ahmed and Farooq were waiting for them outside

the airport. From there, A-92 and other accused were taken to Delhi

Darbar Hotel in two cars. On the next day, Ahmed and Farooq came

to the hotel and told them that they would go to Pakistan for work.

They were also given some money. After 4 days, Salim, Ahmed and

Farooq came to the hotel. Salim told them that their air tickets for

going to Pakistan were ready. Thereafter, Salim and Ahmed called

them and stated that great injustice had been done to the Muslim

community in Bombay riots in December 1992 and January 1993.

Thus, in order to ensure that it was not repeated, they should be

given training of handling of arms/guns and ammunition. T hey

should be ready to go to Pakistan the next day. Salim, Ahmed and

Farooq left the hotel. Next day Ahmed and Farooq came to the hotel

and delivered their tickets and passports. After some time, Salim also

came. The accused (A-92) went with Usman, Ahmed and alongwith

others to Dubai airport.    On the way, Ahmed gave one yellow

coloured cap to Usman (PW.2) and told him to wear the same after

reaching Pakistan so that the person who was coming to receive them,

would be able to identify them. In Pakistan, they were received at the



                                                                  60
                                                               Page 60
airport by one Altaf and taken to the training camp in a jungle.

During their training, a person named Ahmed came there and

enquired about training. After completion of the training, two pathans

took them to unknown bungalow in a jeep. Thereafter, they came to

Karachi and then Dubai and stayed in Delhi Darbar Hotel.


Confessional Statement of Shaikh Ibrahim Shaikh Hussain
Shaink (A-108):

106. He revealed that he was well acquainted with one Ismail and

after the riots in Bombay in December 1992 and January 1993, he

suffered a loss in business and used to stay at home. On 16.1.1993,

Ismail came to his house and asked him if he had a passport and

whether he was willing to go to Dubai. Accused (A-108) told Ismail

that he had no money. Ismail told him not to worry about money, he

would make the necessary payments. So, he got ready to go to Dubai.

A-108 left for Dubai alongwith co-accused and reached Dubai where

two persons named Ahmed and Farooq (whose names were disclosed

by Salim) were waiting outside the airport. Ahmed told them next

day that they had to go to Pakistan for work and Ahmed gave them

each 200 Dinars for their expenses. Ahmed and Farooq had been

meeting them and facilitated their stay and subsequent transit to



                                                                  61
                                                               Page 61
Pakistan. Ahmed gave one yellow coloured cap to Usman (PW.2)

and told him to wear it in Pakistan so that they would be identified by

the person who would come to receive them at the airport. After

reaching Pakistan, Usman (PW.2) wore Yellow coloured cap. One

person came to receive them, Usman (PW.2) told him that Ahmed

and Farooq had sent them from Dubai. They were taken outside the

airport and taken to training camp in a jungle. He (A-108) got injured

during the training so he was taken to hospital at Islamabad for

treatment. He stayed in the hospital for six days. He was brought to

Karachi airport from Islamabad by air by one Yusuf and one unknown

person and then he reached Dubai. Yusuf took him to the house of

Anees Bhai. Ahmed was also present there. The next day the servant

of Ahmed took him to Delhi Darbar Hotel where he met other

persons. From there, they came back to Bombay.


Confessional statement of Usman Man khan Shaikh (A-115):

107. He revealed like other co-accused that he had also gone to

Dubai and two persons named Ahmed and Farooq were already

waiting for them outside the airport. They had facilitated their stay in

Dubai and transit to Pakistan. All arrangements were made by them.

When the accused came back after having           training in Pakistan


                                                                    62
                                                                 Page 62
Ahmed had given him 200 Dinars for expenses. A-115 revealed that

the said accused persons got training in Pakistan.         During their

training, Ahmed came and enquired about their training. After

completion of their training, they came back to Dubai and went to

Delhi Darbar Hotel and then on 15.2.1993, Ahmed and Yusuf took

them to Dubai Airport and then arrived at Bombay.


108. In his statement,      Usman Ahmed Jan Khan (PW-2) made

reference to Ahmed without giving his full name and address or any

other particular, which may be a decisive factor to determine as to

whether the respondent was the real person to whom the witness had

been talking about.


109. The Special Judge has given benefit of doubt to the respondent

(A-132) reaching the conclusion that the prosecution failed to disclose

the correct identity of the accused. None of the witness/accused had

referred to his full name or address even once.        In such a fact-

situation, the Special Judge has rightly given him the benefit of doubt.


110. In the facts and circumstances of the case, as the prosecution

failed to fix the identity of the accused who had gone to Pakistan for




                                                                    63
                                                                 Page 63
training, we are of the opinion that the respondent has rightly been

given the benefit of doubt.


111. The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


112. The appeal lacks merit, and the judgment and order of acquittal

does not deserve interference. The appeal is dismissed accordingly.




                                                                  64
                                                               Page 64
            CRIMINAL APPEAL NO. 1022 OF 2012


State of Maharashtra                               ...Appellant


                               Versus

Rashid Umar Alwar                                  ...Respondent



113. This criminal appeal has been preferred against the impugned

judgment and order dated 2.8.2007, passed by the Special Judge of the

Designated Court under the TADA in the Bombay Blast Case No.

1/93, by which the respondent had been convicted under Section 111

read with Section 135 of the Customs Act, 1962, and awarded the

sentence of 3 years alongwith a fine of Rs.25,000/-. However, he had

been acquitted of the general charge of conspiracy and second charge

under Section 3(3) TADA.


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

A.    In addition to the main charge of conspiracy, the respondent (A-

27) was also charged for participating in the landing and

transportation of the arms, ammunition and explosives, using his

motor truck bearing registration No. MWT-6683, on 3.2.1993 from



                                                                     65
                                                                  Page 65
Shekhadi to Wangni Tower. About 59 bags of RDX explosives were

taken by him in his truck alongwith other co-accused to the field of

Tulsi Ram Dhondu Surve where it was buried and concealed.

B.    After holding the trial, the respondent had been acquitted of the

charge of conspiracy, however, he has been convicted for the other

charges as mentioned hereinabove.

      Hence, this appeal.


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

appellant has submitted that there was sufficient evidence against the

respondent (A-27), so far as the participation and transportation of the

explosives used in the offences is concerned. Therefore, the acquittal

under Section 3(3) TADA and of the charge of general conspiracy is

unwarranted.    The evidence on record makes it evident that he had

knowledge that contrabands were not silver but arms and ammunition.

Therefore, the appeal deserves to be allowed and the respondent (A-

27) should be convicted for the offences punishable under the

aforesaid provisions.


116. Shri Mushtaq Ahmad, learned counsel appearing for the

respondent (A-27) has submitted that after appreciating the evidence



                                                                    66
                                                                 Page 66
on record, the Designated Court reached the conclusion after that even

if the respondent (A-27) had participated in landing and transportation

of contraband, he had no knowledge about its contents. In absence of

any knowledge that the contraband contained arms and ammunition,

conviction under the provisions of TADA is not permissible.         The

respondent (A-27) has already served 3 years imprisonment, and paid

a fine of Rs.25,000/-. Thus, no further consideration of the appeal is

required. Therefore, the appeal is liable to be dismissed.


117.   We have considered the rival submissions made by learned

counsel for the parties and perused the record.

Evidence against him:

Confession of the Respondent Rashid Umar Alware (A-27):

118. In his own confession, Rashid Umar Alware (A-27) has

admitted that he owned a truck bearing registration No.MWT-6683

and he drove himself. In the first week of February, 1993 he had

participated in the landing and transportation of silver at the behest of

other co-accused     by driving his truck to Shekhadi village and

bringing the contraband. He disclosed that his truck was loaded with

contraband and when the truck was moving it was followed by a jeep

and they reached Wangni Tower. There two persons took him aside


                                                                    67
                                                                  Page 67
and was asked to wait at one place. After unloading some of the

goods he drove the truck away from the Tower. The remaining goods

were unloaded and the same was kept in one pit in the land. At that

time he was kept at a distance from where unloading of the goods

could not be seen. He was paid a sum of Rs.20,000/- for

transportation etc.


Confession of Dawood @Dawood Takllya Mohammed Phanse @
Phanasmiyan (A-14):

119. He disclosed that he was a very close associate of Tiger Memon

(AA) and used to participate in landing and transportation of

smuggled goods/contraband. In the first week of February, 1993, five-

seven persons with him had gone for landing at Shekhadi. As per the

pre-arrangement, Rashid Umar Alware (A-27) was called from Borli

with his truck and 35-40 persons were arranged for loading and

unloading the goods. The goods were brought from the trawlers to the

shore by Tiger Memon (AA) and other persons armed with guns and

were loaded in the truck.


Confession of Muzamil Umar Kadri (A-25):

120. He (A-25) disclosed that he reached Borli village on 3.2.1993

and asked Rashid Umar Alware (A-27) to accompany him with his


                                                                 68
                                                              Page 68
truck. He came driving his truck at the place of landing.       Other

accused persons were there. They reached Shekhadi and the goods

were loaded in the truck.


Confession of Sajjad Alam @ Iqbal Abdul Hakim Nazir (A-61):


121.   He corroborated the version given by other co-accused that on

3.2.1993 the landing took place and the contraband was transported by

the truck of the respondent (A-27).

              He also disclosed that most of the persons were not

permitted to see when the loading and unloading took place at

Wangni Tower.



Confession of Tulsi Ram Dhondu Surve (A-62):

122. He (A-62) has corroborated the version given by other co-

accused disclosing that the said truck used for transportation

belonged to Rashid Umar Alware (A-27) from Borli and he himself

was driving the truck.      The goods brought in the Wangni Tower

contained guns and pistols. The work of loading of the goods from

the truck in a jeep and tempo started after bringing the same by truck

from Shekhadi. Out of the aforesaid goods 59 bags remained. The said



                                                                  69
                                                               Page 69
bags were taken by the truck of the respondent (A-27) in the field and

were unloaded on the steps of the house with the help of the labourers

on the field and the same were covered with the soil. When he asked

Dawood whether those were the silver bricks, he was told that it was

"Kala Sabun". Tiger Memon (AA) intimidated him and warned not to

tell to anyone about the same. Tiger Memon took one bundle from the

said bundles and saw the same and ascertained as to whether the

goods therein were proper or not and threw the plastic bag at that

place and packed the same in another bundle and took the same with

him. It was learnt later that one truck had arrived on 4.2.1993 in the

evening and carried away the remaining 59 bags.


123. The Designated Court after appreciating the entire evidence on

record came to the following conclusion:

      "Now with regard to submission canvassed on behalf
      of A-27 and after carefully considering the material
      in his confession and the same having shown the
      manner in which he had acted in episode it is crystal
      clear that he was full aware that he was involved in
      an illegal operation. Having regard to same and so
      also having regard to the amount received by him it
      will be difficult to perceive that he was not aware that
      he was effecting any illegal operation. Now
      considering the acts committed by him clearly
      denotes of himself having transported the goods
      brought into the country at a p lace which was not a
      port and all the facts regarding the said operation the


                                                                   70
                                                                 Page 70
      same are sufficient to denote of the same being a
      smuggling operation. However, there being no
      express evidence of A-27 having seen the nature of
      goods transported and the evidence having indicated
      that he cannot be said to be a person present at
      Wangni tower when the exchange of material from
      vehicles to another vehicle was effected for
      concealing the same in cavity and the person from
      Bombay being only present along with Tiger Memon
      and A-14 & A-17 his liability would be restricted for
      commission of offences under Customs Act he would
      be required to be held guilty only for commission of
      offence under Section 111 r/w Section 135(b) of
      Customs Act and would be required to be held not
      guilty for commission of other offences including that
      of conspiracy in view of his acts being not of a nature
      for coming to the conclusion of the same being for
      furthering the object of conspiracy of or involvement
      of A-27 in the same."
                                       (Emphasis added)

124. The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


125. There is no evidence on record to show that the respondent had

any knowledge about the nature of the articles smuggled in India. In

view thereof, we do not find any cogent reason to interfere with the

well-reasoned judgment of the Designated Court. The appeal lacks

merit, and is accordingly, dismissed.




                                                                  71
                                                                Page 71
             CRIMINAL APPEAL NO. 393 OF 2011


The State of Maharashtra                           ...Appellant


                                Versus


Sharif Khan Abbas Adhikari                         ...Respondent



126. This criminal appeal has been preferred against the impugned

judgment and order dated 2.8.2007 passed by the Special Judge of the

Designated Court under the TADA in the Bombay Blast Case No.

1/93, by which the respondent had been convicted under Section 111

read with Section 135 of the Customs Act, 1962, and awarded the

sentence of 3 years, alongwith a fine of Rs.25,000/-, and in default of

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

However, he had been acquitted of the charge of conspiracy and

charge under Section 3(3) TADA.


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

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

was also charged for participating in the landing and transportation of

the arms, ammunition and explosives at Shekhadi, Dist. Raigad, for



                                                                     72
                                                                  Page 72
committing terrorist acts and also by shifting the said contrabands

from motor truck bearing registration No. MWT-6683 on 3.2.1993

into tempos and motor jeeps at Wangni Micro Tower Mhasla.

B.    After holding the trial, the respondent has been acquitted of the

aforesaid charges, however, convicted for the other charges as

mentioned hereinabove.

      Hence, this appeal.


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

appellant has submitted that there is sufficient evidence against the

respondent so far as his participation in landing and transportation of

the arms, ammunition, explosives etc. Therefore, the acquittal under

Section 3(3) TADA, and of the charge of conspiracy is unwarranted.

The evidence on record makes it evident that he had knowledge that

contraband were not silver, but arms and ammunition. Therefore,

appeal deserves to be allowed, and the respondent should be convicted

for the aforesaid offences.


129. Ms. Farhana Shah, learned counsel appearing for the

respondent has submitted that after appreciating the evidence on

record, the Designated Court reached the conclusion that even if the



                                                                   73
                                                                Page 73
respondent had participated in landing and transportation of

contraband, he had no knowledge about the nature of those articles.

In the absence of any knowledge that those smuggled goods contained

arms and ammunition, conviction under the provisions of TADA is

not permissible. The respondent had already served 3 years

imprisonment and paid a fine of Rs.25,000/-. Thus, no further

consideration of the appeal is required. Thus, the appeal is liable to be

dismissed.


130. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

Evidence against the respondent:

Confession of Khalil Ahmed Sayed Ali Nasir (A-42):


131. He disclosed about the incident of landing and transportation on

3.2.1993 that the goods were brought by the truck by Rashid Umar

Alware (A-27) who was driving the truck himself. In the said truck

other persons namely Abdul Salam Hishamuddin Nazir, Bashir Fakji,

Sharif Khan Abbas Adhikari (A-60), Muzammil Umar Kadri and

Azimbhai Pardesi were sitting.




                                                                     74
                                                                  Page 74
Confession of Tulsi Ram Dhondu Surve (A-62):


132. He was the employee at the Wangni Tower. He disclosed that

he knew respondent Sharif Khan Abbas Adhikari (A-60), resident of

Mhasla and he was the person who brought Dawood @ Dawood

Taklya Mohammed Phanse (A-14) to him 1 ½ years ago. They had

persuaded him (A-62) to help in loading and unloading the smuggled

silver and other goods in the tower for a handsome consideration. So

far as the relevant incident is concerned, he disclosed that some of the

persons including Sharif Khan Abbas Adhikari (A-60) came there

with contraband at about midnight and thereafter the goods were

loaded in the tempo from the truck. They paid Rs.1,000/- each to the

said accused, Harishchandra Surve (PW-108), and Vijay Govind More

(PW-137), the other employees at the Wangni Tower. He had been

informed by Sharif Khan Abbas Adhikari (A-60) regarding the

landing and bringing the goods by Dawood Phanse (A-14) and that is

why the accused made all the arrangements.

Deposition of Harish Chandra Surve (PW-108):

133. He corroborated the version given by Tulsi Ram Dhondu Surve

(A-62) and regarding the said incident he disclosed that he knew all

the co-accused/conspirators. The truck loaded with silver bricks came


                                                                    75
                                                                 Page 75
there and the bricks were shifted in the tempo and jeep. Thereafter all

the vehicles left the tower. The deal was arranged by Tulsi Ram

Dhondu Surve (A-62) on consideration fixed by Dawood Phanse (A-

14). The truck of Rashid Umar Alware (A-27) was carrying silver

bricks and wooden boxes of square shape. Silver bricks were wrapped

in a gunny cloth. Persons in Maruti car were having small size guns.

He had not seen the weapons with the persons who had accompanied

the jeep and tempo. He further identified Sharif Khan Abbas Adhikari

(A-60) in court to be the person who was in the jeep.

Deposition of Vijay Govind More (PW-137):

134.   In respect of the incident dated 3.2.1993, he deposed that Tiger

Memon (AA), Dawood Phanse (A-14), Sharif Khan Abbas Adhikari

(A-60), Abdul Gharatkar, Dadamiya Parkar (A-17), Sarfaraz Phanse

(A-55) were amongst the said persons. He further deposed that

Dawood Phanse (A-14), Sharif Khan Abbas Adhikari (A-60) and

others were the occupants of one of the jeep and he also identified

Sharif Khan Abbas Adhikari (A-60) in court.


135. The Designated court after appreciating the entire evidence on

record came to the following conclusion:




                                                                   76
                                                                Page 76
"Now carefully considering relevant material from
confession of A-42 and A-62 about which excerpts
are recited hereinabove it must be said that though
same reveals involvement of A-60 in relevant landing
operation still close look at the same and so also
other evidence does not reveal any material
indicating that A-60 was aware of nature of material
which were smuggled during said operation. The
same is obvious as hardly there is any material
revealing that A-60 was present alongwith Tiger
Memon when packets of goods were opened by
Tiger Memon on coast. Similarly, evidence is
contrary regarding presence of A-60 at Wangni
Tower when goods were exchanged. Having regard
to same it will be extremely difficult to hold A-60
guilty for offence under Section 3(3) TADA."
       Having regard to fact that prosecution
evidence about which detail dilation is made while
recording the reasoning regarding the conclusion
arrived about guilt of aforesaid accused and the same
amongst other having denoted that A-33 and A-56
were owners of the boat which was used in
contraband operation, both of them being involved
twice in such operation, and even prior to same
themselves and so also A-19 being engaged in such
activities, the quantity of goods which was
transported by A-19 being 48 cartons i.e.
approximately 960 Kg. allegedly being silver as told
to them, confession of A-14 revealing amount of
Rs.24,000/- being paid to boatmen, A-27 having
received an amount of Rs.20,000/- for transportation
effected by him. A-60 also being involved twice in
transportation operation as disclosed from the
confession of A-62 and A-42 and even prior to same
himself being involved in smuggling operations are
the factors for not accepting submissions advanced
for showing leniency on the count of financial
condition etc. Needless to add that in the event of
crimes being committed for earning handsome profits
then hardly there would be any scope to show


                                                          77
                                                        Page 77
      leniency on said count as the same will have an effect
      of causing erroneous impression of culprits being
      permitted to acquire the profits by commission of
      crimes. Needless to add that the same would warrant
      of levying a sentence of an appropriate amount of
      fine in addition to the sentence of rigorous
      imprisonment." (Emphasis added)

136. The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


137. There is no evidence on record to show that the respondent had

any knowledge about the nature of the articles smuggled in India. In

view thereof, we agree with the reasoning given by the Special Judge.

No interference is warranted on the facts of the case. The appeal is

accordingly dismissed.




                                                                 78
                                                               Page 78
              CRIMINAL APPEAL NO. 391 OF 2011


State of Maharashtra                                 ...Appellant

                                 Versus


Sharif Abdul Gafoor Parkar @ Dadabhai             ...Respondent


138. This criminal appeal has been preferred against the impugned

judgment and order dated 2.8.2007, passed by the Special Judge of

the Designated Court under the TADA in the Bombay Blast Case No.

1/93, by which the respondent (A-17) stood convicted under Section

3(3) TADA, and was awarded punishment of 7 years RI and a fine of

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

under Section 5 TADA, he was awarded 10 years RI and a fine of

Rs.50,000/-, and in default of payment of fine, further R.I. for one

year; and under Section 6 TADA, was awarded 14 years RI, and a fine

of Rs.2 lakhs, and in default, to suffer further R.I. for 3 years. All the

sentences were directed to run concurrently.

      As the respondent (A-17) has been acquitted of the charge of

conspiracy, the present appeal has been filed by the State.




                                                                      79
                                                                    Page 79
139. Shri Mukul Gupta, learned senior counsel appearing for the

appellant has submitted, that there is ample evidence on record to

show that respondent (A-17) was a close associate of Tiger Memon

(AA) and was a party throughout in hatching the conspiracy and,

therefore, has wrongly been acquitted for the said charge. In the

statement of the respondent (A-17) under Section 313 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as Cr.PC.), before

the learned Designated Court, he himself admitted that he was fully

aware of the contraband and knew that the same was going to be used

against Hindus for taking revenge. Therefore, the appeal deserves to

be allowed.


140. Shri Sushil Karanjakar, learned counsel appearing for the

respondent (A-17) has submitted that the respondent has already

served the sentence of 14 years awarded by the Designated Court and

paid the fine and did not file any appeal against his conviction. In

spite of the fact that the respondent (A-17) was fully aware that the

arms, ammunition and explosives that had been smuggled into India

by Tiger Memon (AA) would be used for terrorist activities, he was

unable to give any other person this information as he had been

threatened with dire consequences. Thus, the respondent (A-17) acted


                                                                 80
                                                              Page 80
under threat and coercion. It was further submitted that the

confessions of the co-accused used by the learned Designated Court to

convict the respondent (A-17) were made prior to the date of the

amendment i.e. 22.5.1993 except the confession of Nasir Dhakla (A-

64). However, the statement of Nasir Dhakla (A-64) cannot be relied

upon as there was no corroboration of the same.

       Therefore, at such a belated stage there is no reason to entertain

the appeal and convict the said respondent for conspiracy, as he had

already suffered enough.      Therefore, the appeal is liable to be

dismissed.


141. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


Evidence against the respondent (A-17):

Confessional statement of Dadabhai Parkar (A-17):

142.    He disclosed that he was a very close associate of Tiger

Memon (AA) and used to participate in smuggling activities. He had

been called by Tiger Memon (AA) many times for landing etc. So far

as the landing on 3.2.1993 is concerned, he disclosed that on

instructions of Tiger Memon he contacted R.K. Singh (A-102), the



                                                                    81
                                                                  Page 81
Customs Officer and told him that he was an informant and asked him

to come to hotel Big Splash. He (A-102) expressed his inability to

come to the hotel Big Splash but assured that his Superintendent,

Sayyed (A-90) would come. The accused (A-17) and Tiger Memon

(AA) had some discussion with Sayyed (A-90) and Tiger Memon had

told him about his programme of landing of smuggled goods. On

3.2.1993, he (A-17) left with co-accused and participated in the

landing and brought the smuggled goods. There was some material in

the jeep and cardboard boxes which were covered with gunny cloth.

Inside the boxes there was packing of plastic and inside, in some

boxes hand bombs, wire, rifles and pistols and cartridges were there.

Tiger Memon (AA) had been checking those goods and preparing a

list.   Baba, Anwar, Shafi and others were keeping the arms and

ammunition etc. in the cavities of jeep and tempo. Among the goods

that were landed there, a chemical by name black soap was also there.

As there was insufficient space in the tempo, Tiger Memon (AA)

instructed his man to bury 59 bags in the land opposite the tower. The

cardboard boxes and empties were handed over to some persons and

they destroyed the same by burning them. As to the packages of

"black soap" which had been torn, Tiger Memon gave them to him






                                                                  82
                                                               Page 82
(A-17) and instructed him (A-17) that he had to be careful while

burning them as they may explode. He burnt the same and at that

time heard the noise of explosion which was very mild. The work was

complete by 5.00 a.m. and they left for Bombay.

      Again on 9.2.1993 there was another landing and Tiger Memon

(AA), Javed, Yakub, Anwar, Shafi, Imtiyaz, Parvez, Mohd. Hussain

etc. all proceeded to Wangni Tower.       At that time there were 2

tempos, 4 jeeps and one Maruti car. They went to Coastal side at

Shekhadi and after receiving the contraband from the trawler they

loaded the same in a truck and came to the tower. Two boxes from

the tempo were taken out and broken and the goods like pistols,

weapons were adjusted in the cavities of the jeep and the empty

boxes were burnt.

    It was on 19.2.1993 that he was paid a sum of Rs.5 lakhs by

Asgar Mukadam @ Munna. He also received Rs.9 lakhs from Shafi

and one lakh from Gani. So, in total he received Rs.15 lakhs and after

deducting all the expenses, the three partners received Rs.70/75

thousand each. Out of the said 15 lakhs, he had paid to Customs

Office, Shrivardhan;     Customs Office, Murud; Customs Office




                                                                  83
                                                               Page 83
Adgaon; Mhasla Police Station, Shrivardhan Police Station, Borli Out

post, Trawler owners, trucks and to Hamals.


Confession of Dawood @ Dawood Taklya Mohammed Phanse @
Phanasmiyan A-14:


143. The said accused (A-14) disclosed that he had been doing the

work of landing of smuggled goods of various smugglers in

partnership with Sharif Abdul Gafoor Parkar @ Dadabhai (A-17),

resident of village Sandheri and Rahim Abbas Karbalekar @ Rahim

Laundriwala of village Shrivardhan for last 5-6 years. He (A-14) had

been attending the landing of silver for last 2 years for Tiger Memon

(AA). He disclosed that he had visited Dubai at the instance of Tiger

Memon and met Dawood Ibrahim Kaskar. He did not know Dadabhai

(A-17), however, he could identify him as he had seen his photograph

in the newspaper several times. Dadabhai (A-17) asked him (A-14) as

to whether he was interested to work for him and he (A-14) said that

he had stopped the work of silver smuggling. He would transport

chemicals/explosives and arms consignments. After pressing his teeth

Dawood Ibrahim told him (A-14) that Babri Masjid had been put to

martyrdom and they have to take revenge and then asked how much it

would cost. Then Tiger Memon (AA) told him that it would cost


                                                                 84
                                                              Page 84
about 9-10 lakhs. Tiger Memon (AA) asked him (A-14) to make the

arrangements fully.

       So far as the incident dated 3.2.1993 is concerned, he (A-14)

disclosed that Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) called

Rahim Laundriwala and said that landing had to take place that

evening and asked him to make all arrangements and to talk with

Customs officers. He (A-17) disclosed about the landing and bringing

the smuggled goods by the trucks. He (A-17) came with Tiger Memon

(AA) in his jeep and reached the tower where Sharif Abdul Gafoor

Parkar @ Dadabhai (A-17) and Tiger's men were already present.

Tiger's men unloaded the goods from the truck. The boxes contained

Rifles, pistols, ammunition, wire, handgrenades, and something

looking like black soap. Out of the said boxes, Tiger Memon found

something like white pencil and showed it to Sharif Abdul Gafoor

Parkar @ Dadabhai (A-17) and told him (A-17) that it could blow up

Oberoi Hotel. He (A-14) further disclosed that he (A-17) had loaded

the boxes in the truck of Rashid, there were 59 items and he (A-17)

asked Rashid to unload them at the spot which had been dug up for

this purpose. Two-three days thereafter, Sharif Abdul Gafoor Parkar




                                                                85
                                                             Page 85
@ Dadabhai (A-17) told him (A-14) that the black soap had been

loaded by him and other persons in the tempo.


Confessional statement of Asgar Yusuf Mugadam (A-10):

144. He (A-10) disclosed that he (A-17) was very close associate of

Tiger Memon (AA) and had participated in the smuggling activities

etc. and was involved in landing and transportation of silver, arms and

ammunition with Tiger Memon (AA).             So far as the present

respondent (A-17) is concerned, he deposed that Tiger Memon (AA)

had told the accused (A-10) that Fifteen Lakh rupees are to be given

to Dadabhai (A-17) for landing. The accused (A-10) and Parvez took

Rs. 5 lakhs from Chokshi and gave it to Dadabhai (A-17) after going

to his residence in Juhu.

Confession of Abdul Gani Ismial Turk (A-11):

145. So far as the present respondent (A-17) is concerned, he stated

that he was a close associate of Tiger Memon (AA) who was dealing

with the smuggling of gold and silver. He used to go to Mhasla in

District Raigad, intermittently. In the first week of September, 1992,

he went alongwith Tiger Memon (AA) and others to Mhasla by jeep

and Maruti car. On the way, they met Dadabhai (A-17) also. He was

indulging in landing and transportation and the respondent (A-17)


                                                                   86
                                                                Page 86
alongwith 40-50 persons. On about 3rd February, 1993, he disclosed

that at about 1 O'Clock in the night, Tiger Memon (AA) came with

many persons including Dadabhai (A-17) alongwith a motor lorry and

the goods on that lorry were unloaded at one room of Wangni Tower.

Tiger Memon (AA) checked all the goods in their presence and they

had witnessed 70/80 black coloured boxes of chemical, 250/300

handgrenades, 15/20 small pistols and 60-70 big rifles, wires like

electrical wires, empty magazines (cassettes) of rifles and large

number of bullets. All these were packed in cardboard boxes, carton

and gunny bags. In respect of the incident dated 8 th/9th March, 1993,

this accused (A-11) disclosed about the presence of the said

respondent (A-17) alongwith other co-accused persons who had

already reached by a Maruti-1000 car at Vesava at about 4.30 a.m.

There they took `Sarai' and then went to the hill side in the jungle,

where Tiger Memon (AA) was throwing handgrenades in the ditch in

order to give training to 5-7 persons. Those persons also practiced on

operating rifles. This training went on for two hours. Dadabhai (A-

17) was staying downside. When around 5-6 persons assembled there

on hearing the sound of gun-firing, Dadabhai (A-17) told them that

film shooting was going on the hill, so they went away.         Those



                                                                  87
                                                               Page 87
persons were known to Dadabhai (A-17). It was at that time about 12

O'clock in the noon, those persons after getting training, came down

and handed over empty magazines to Dadabhai (A-17) and left for

Bombay.


Confessional statement of Parvez Nazir Ahmad Shaikh (A-12):

146. So far as the present respondent (A-17) is concerned, he

disclosed that on 3rd February, 1993, after landing the smuggled

goods, they were brought to the Wangni Tower in a motor lorry by

Tiger Memon (AA) alongwith other co-accused, namely, Shafi,

Anwar, Javed, Yakub, Dadabhai (A-17) and Dawood Taklya (A-14)

etc. All the goods in the lorry were unloaded in the Wangni Tower

and in accordance with the number series written on the packages, all

the goods were separated from each other.           After shifting the

goods/contraband, all the material which was used for packing was

burnt by Dadabhai (A-17) and his men, and as there was no space in

the vehicles for keeping 59 bags of chemical, they were loaded again

in the truck, what happened of those thereafter, he (A-12) did not

know. He further deposed that Tiger Memon (AA) had shown a

pencil like article and said that this pencil costs Rs.25,000/- and with

this pencil, he could explode one Oberoi Hotel. In the entire incident


                                                                   88
                                                                 Page 88
of smuggling on 3rd February, 1993, Dadabhai (A-17) was all along

with Tiger Memon (AA) alongwith other persons.


Confessional statement of Mohomed Iqbal Mohomed Yusuf
Shaikh (A-23):


147. He disclosed in respect of the incident of landing/transportation,

and corroborated the statements of other co-accused and disclosed that

Dadabhai (A-17) was present and participated in the said activity and

he (A-17) was present when the bomb was thrown by Tiger Bhai and

Mehmud while training certain persons on the hillock. After hearing

the sound after the explosion, Tiger Memon (AA) told Dadabhai (A-

17) that the said hillock was not safe. Then Dadabhai (A-17) took

them to another place. The said hill was far away from the earlier

place in the jungle. Tiger Memon (AA) made the accused (A-23) and

other persons practice gun firing by rifle AK-56. After having

training, they came down the hill and found Dadabhai (A-17) standing

there near the car and from there they came back to Bombay.




                                                                   89
                                                                Page 89
Confessional statement of Shanawaz Abdul Kadar Qureshi (A-
29):


148. He corroborated the other co-accused and he disclosed that

when landing took place, they brought the contraband and started

unloading and separating the goods which were wrapped in gunny

bags. The rest of the 50-60 big boxes which were very big, were

again loaded in the same truck by them. The empty cartons were

burnt by Dadabhai (A-17) and his men. After loading the articles, the

truck left.


Confessional statement of Bashir Ahmad Gani Khairulla (A-13):

149. He disclosed that when they went for landing, Tiger Memon

(AA) was accompanied by various co-accused including Dadabhai

(A-17).


Confessional statement of Manoj Kumar Bhanwar Lal Gupta (A-
24):


150. He disclosed that at about 4.00 p.m., on 2 nd February, 1993,

Tiger Memon (AA) came to the Mhasla Tower alongwith 25 boys

including Dadabhai (A-17).




                                                                 90
                                                              Page 90
Confessional statement of Muzammil Umar Kadri (A-25):


151. He disclosed that Dadabhai (A-17) was the partner of Rahim

Laundrywala and Dawood Taklya (A-14) and he had seen all of them

near the Wangni Tower.


Confessional statement of Syed Abdul Rahman Kamruddin Syed
(A-28):


152. He disclosed the involvement of Dadabhai (A-17) alongwith

others in the purchase of sacks for loading and unloading from a firm.


Confessional statement of Khalil Ahmed Sayed Ali Nasir (A-42):


153. He disclosed that respondent (A-17) was a close associate of

Dawood Taklya (A-14) and Rahim Laundrywala.


Confessional statement of Mohammed Rafiq @ Rafiq Madi Musa
Biyariwala (A-46):


154. He disclosed that during the relevant period of 3 rd February,

1993, they had been staying at Alibagh alongwith respondent (A-17).

He left with Shafi for Sandheri village. The lorry also followed them.

On reaching the village Sanderi, Dadabhai (A-17) loaded 40-50

bundles of empty gunny bags in the lorry. Dadabhai (A-17) loaded


                                                                  91
                                                                Page 91
the truck with 59 gunny bags. The said accused and Dadabhai (A-17)

went to the house of Dadabhai (A-17) in Maruti car and found two

jeeps already parked near the house.


Confessional statement of Sujjad Alam Abdul Hakim Nazir (A-
61):

155. He corroborated the version of the other accused in respect of

the loading and unloading at Wangni Tower on 3rd February, 1993 and

disclosed that Dadabhai (A-17) was also present there.


Confessional statement of Tulsi Ram Dhondu Surve (A-62):

156. He disclosed about the loading and unloading of contraband at

Wangni Tower and participation of Dadabhai (A-17) alongwith other

accused.


Confessional statement of Nasir Abdul Kadar Kewel @ Nasir
Dhakla (A-64):

157. He corroborated the version of Tulsi Ram Dhondu Surve (A-

62) in all material respect.


Confessional statement of Gulam Hafiz (A-73):

158. He was a hotel employee and disclosed that at the relevant time,

respondent (A-17) who was a landing agent of Tiger Memon (AA),



                                                                 92
                                                              Page 92
and smuggler of gold and silver, came there to the hotel alongwith a

person and from there they went to Wangni Tower.

Confessional statement of Mohamed Sultan Sayeed (A-90):

159. He disclosed about the meeting in the hotel with Dadabhai (A-

17) and he has called the said accused to furnish some information

about landing etc. as he wanted to give secret message to Shri R.K.

Singh, Assistant Collector (A-102). He (A-90) also disclosed that this

accused (A-17) was son-in-law of A.R.Antulay's sister.


Confessional statement of Mohd. Parvez Zulifkar Qureshi (A-
100):

160. He also corroborated the version of other witnesses/accused, in

all material respect and supported the case of the prosecution.


Evidence of Usman (PW-2) :

161. According to his deposition, the witness himself was involved

in anti-social activities. He knew respondent (A-17).             It was

respondent (A-17) who booked the room in hotel Big Splash for the

boys of Tiger Memon(AA). Respondent (A-17) helped Tiger Memon

(AA) in collecting bags from the trawler. He was the person who had

supplied the boys, for loading and unloading the contraband and after

shifting the goods, the empty boxes of RDX etc. were destroyed by


                                                                    93
                                                                  Page 93
respondent (A-17). This witness also identified the respondent (A-17)

in court.


Evidence of Vijay Govind More (PW-137) :

162. According to this witness, the respondent (A-17) was involved

in the smuggling and in the incident of February 1993. He was the

agent of landing and transportation with Dawood Phanse (A-14) and

had brought the goods to Wangni Tower. Therein, it was shifted from

truck to tempos.


163. Harish Chandra Surve (PW-108) corroborated the version

given by the respondent (A-17) and he (PW.108) deposed that he had

come on the relevant date, i.e., on 3rd February at Wangni Tower

alongwith Dawood Phanse (A-14) in jeep and he participated in

shifting the goods from truck to tempos. He identified respondent (A-

17) in the court.


164. Narendra Thale (PW-141) is the employee of Hotel Big

Splash and deposed that respondent (A-17) booked the rooms in Hotel

Big Splash and thus, corroborated the version given by Parvez Nazir

Ahmed Shaikh (A-12).




                                                                 94
                                                              Page 94
165. Vijay D. Kadam (PW-344) supported the version of other

witness/ accused and particularly in respect of booking the rooms in

Hotel Big Splash by respondent (A-17).


166. Dileep M. Katarmal (PW-284) deposed that he was the

Manager of the Company from where the jute bags were purchased in

bulk and it was respondent (A-17) with his son Mujib Sharif Parkar

(A-131) who had purchased the bags.


167. Jahi S. Kirkire (PW-285) corroborated the version of Dileep

M. Katarmal (PW.284) in respect of purchase of gunny bags. Suresh

Meecheri (PW.485) is the recovery witness.


168. The aforesaid evidence was considered and appreciated by the

learned Designated Court, which recorded the following conclusions:-

(i)     Respondent (A-17) was guilty of the offences charged directly

       against him which in its term established his engagement to

       carry out the object of the conspiracy and it made him guilty

       in the conspiracy charge also.

(ii)       Respondent (A-17) was fully aware about the nature of

       goods smuggled into India that it contained rifles, pistols,

       bullets, detonators, hand-grenades etc.


                                                                 95
                                                              Page 95
(iii)     That   in   spite   of   the   knowledge    of   nature    of

contrabands/smuggled goods, respondent (A-17) continued with

the operation which he had undertaken.

(iv)     Applying the test of judicial pronouncements by this Court,

respondent (A-17) was party to a conspiracy for which charge at

head firstly was framed against him.

(v)     Hardly there was any evidence to reveal that respondent (A-17)

was present in the meeting which had taken place in Hotel Big Splash

by Tiger Memon.

(vi)    Though there was some evidence which created suspicion of

high degree regarding involvement of respondent (A-17) in

conspiracy for which charge at head firstly was framed, respondent

(A-17) was not liable for conspiracy as it was not proved that he was a

party to the agreement for commission of illegal acts. As he had not

been the party to such meeting, he could not be held liable for

conspiracy on the said count alone.

(vii) Respondent (A-17) had effected the landing and continued with

the said landing in spite of acquiring the knowledge of said landing

being not of silver and being of arms, ammunitions and explosive

substance. He was not liable for offence of conspiracy as his act had



                                                                    96
                                                                Page 96
not transcended beyond effecting the said landing for which he had

agreed before knowing precise nature of goods to be smuggled.

(viii) Respondent (A-17) did not do anything to furthering the object

      of conspiracy. Therefore, he could not be held liable for the

      offence of conspiracy. Thus, he did not act for furthering the

      object of conspiracy and was not liable for the said offence.

      More so, he did not participate in the crime committed at

      Bombay in furtherance of the object of conspiracy.

      The aforesaid findings make it crystal clear that they were

mutually inconsistent and could not be in consonance with each other.


169. The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


170. The respondent (A-17) while making his statement under

Section 313 CrPC answered the court as under:

      "I knew that all the weapons and explosives were to
      be used in Mumbai and that Bombay Blast were to be
      brought about at various places and that revenge on
      Hindus was to be taken. But since Tiger Memon had
      threatened him he did not disclose the same to
      anyone."




                                                                  97
                                                                Page 97
171. The Special Judge recorded the finding that the respondent did

not do anything to further the object of conspiracy. However, landing

was not of silver and gold, but of arms, ammunition and explosives.

The respondent was fully aware of the nature of the smuggled articles

and also the purpose for which the contraband goods had been

smuggled into India. Even after having such a knowledge, his close

association with Tiger Memon (AA) confirmed and he participated

and facilitated the transportation of the said articles.

     In such a fact-situation, the Special Judge was not justified in

acquitting the respondent (A-17) of the charge of conspiracy.

     The appeal is allowed. The respondent is convicted for the charge

firstly, and awarded the life imprisonment. He 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.




                                                                    98
                                                                  Page 98
              CRIMINAL APPEAL NO. 1027 OF 2012


State of Maharashtra                               ...Appellant


                               Versus

Manoj Kumar Bhanwarlal Gupta                        ...Respondent


172. This criminal appeal has been preferred against the impugned

judgments and orders dated 5.6.2007 and 2.8.2007 passed by the

Special Judge of the Designated Court under the TADA in Bombay

Blast Case No. 1/93, by which The respondent (A-24) has been

acquitted of the charge of conspiracy and has been convicted under

Section 3(3) TADA and has been awarded the sentence of 7 years RI

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

further RI for a period of one year. Further, under Section 5 TADA,

he was awarded 10 years imprisonment and a fine of Rs.1 lakh, and in

default of payment of fine to suffer further RI for three years. He was

further found guilty under Section 6 TADA and was awarded the

sentence of    14 years and a fine of Rs.1 lakh, and in default of

payment of fine to suffer further RI for three years. He was also

convicted under Section 3(3) TADA and Section 201 IPC, and was

awarded 5 years imprisonment and a fine of Rs.25,000/-, and in

                                                                    99
                                                                  Page 99
default of payment of fine to suffer further RI for a period of six

month. All the sentences have been directed to run concurrently.


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

A.     In addition to the main charge of conspiracy, the respondent (A-

24) was charged under Section 3(3) TADA, for his participation in

weapons' training conducted by Tiger Memon for handling arms,

ammunition and explosives which took place at Sandheri and

Bhorghat, (Dist. Raigad) and his association in smuggling, landing

and transportation of the arms, ammunition and explosives on 3 rd and

7th February, 1993; thirdly, he was charged under Sections 5 and 6

TADA for having possession of 2 pistols, one revolver and one

country made pistol unauthorisedly; and lastly for his involvement in

disposal of 59 packages of explosives i.e. RDX, by engaging the

services of others and throwing them at Nagla Bunder Creek. He (A-

24) was thus found guilty under Section 3(3) TADA and Section 201

IPC.




                                                                     100
                                                               Page 100
B.    After conclusion of the trial, the respondent was held guilty of

the charges as referred to hereinabove, but has been acquitted of the

charge of conspiracy.

      Hence, this appeal.


174. Mr. Satya Kam, learned counsel appearing for the appellant has

submitted that the involvement of the respondent (A-24) had been

from the very beginning and he had been in close association of Tiger

Memon (AA) and was involved in hatching the conspiracy, assisting

him in landing and transportation of arms, ammunition and

explosives. Therefore, he ought to have been convicted for the first

charge. Thus, the appeal deserves to be allowed.


175. On the contrary, Ms. Farhana Shah, learned counsel for the

respondent (A-24) has submitted that he had already served the

sentence of 14 years and deposited the fine, and has already suffered a

lot. Therefore, it is not warranted to entertain this appeal against his

acquittal in view of the parameters laid down by this Court in this

regard. Therefore, the appeal is liable to be dismissed.


176. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


                                                                    101
                                                                Page 101
177. Evidence against the respondent (A-24):

(a)   Confessional statement of Manoj Kumar Bhanwarlal Gupta (A-24)
(b)   Confessional statement of Imtiyaz Yunusmiya Ghavte (A-15)
(c)   Confessional statement of Noor Mohammed Haji Mohammed
      Khan (A-50)
(d)   Confessional statement of Nasir Abdul Kader Kewal @Nasir
      Dakhla (A-64)
(e)   Confessional statement of Tulsi Ram Dhondu Surve (A-62)
(f)   Confessional statement of Mohd. Dawood Mohd. Yusuf Khan
      (A-91)
(g)   Confessional statement of Shahnawaz Abdul Kadar Qureshi
      (A-29)
(h)   Confessional statement of Shaikh Mohmed Ethesham Haji
      Gulam Rasool Shaikh (A-58)
(i)   Deposition of Mohd. Usman Jan Khan (PW.2)

178. Confessional statement of Manoj Kumar Bhanwarlal Gupta
     (A-24) :

      His confessional statement was recorded on 30.4.1993 and

9.5.1993. The respondent (A-24) in his confessional statement had

disclosed that he had been indulged in the criminal activities since

very young age and had committed murders and was indulged in

Hawala business with Iijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed

Zakir (A-137-dead) who was living at that time in Dubai as well as in



                                                                 102
                                                             Page 102
Bombay. He had murdered Majeed in 1986 and absconded. He had

also committed the murder of one Hameed alongwith Dawood

Shamsher Aziz. Even though, he had been arrested several times in

most of the cases but, he had been granted bail.

      In July 1989, he had murdered Kamaljit Singh as per the

instructions of Ayub and then murdered one Mahmood who had

murdered his friend Kailash Jain in Udaipur, Rajasthan. However, in

these cases he remained absconding. Further in January, 1992, he

came back to Bombay and started Hawala business and at that time he

stabbed a person named Hallu and remained absconded. He had

developed close association with Tiger Memon (AA). On 2.2.1993,

Tiger Memon, Hazi Yakoob @ Hazi Yeda Yakoob (AA)

accompanied by 20-25 persons went to Mhasla tower         and met

Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiya, (A-

14) and Dadabhai (A-17) there. They all went to Shekhadi alongwith

Tiger Memon where he (AA) alongwith others went in the sea and

came back with certain bags. The bags were containing AK-56 rifles,

handgrenades, magazines and pistols.

      Tiger Memon gave him (A-24) one AK-56 rifle, 2 loaded

magazines and 1 bag containing handgrenades. Tiger Memon asked



                                                               103
                                                           Page 103
him (A-24) to sit alertly on the sea-shore and also explained to him

the procedure of using the handgrenades by removing its pin. After

some time, a truck came there and the goods were shifted from boats

into the truck. He went to Mhasla Tower by another jeep where the

packets were unloaded and opened.         There were AK-56 rifles,

handgrenades, pistols and cartridges in those packets. He had seen

those packets containing black soap. The black soap was unloaded in

two tempos and weapons and cartridges were loaded in jeep and

tempos in the cavities made therein. Altogether, there were five jeeps

and two tempos for all these goods. On the instructions of Tiger

Memon, the vehicles left in different directions. Tiger Memon and

Haji Yeda Yakoob told him (A-24) to stay in the house of Hazi

Yakoob at Khar, and he (A-24) stayed there.

      Respondent (A-24) again participated in the second landing on

9.2.1993 wherein    uploading of goods started and were unloaded

within two hours. Tiger Memon (AA) brought the goods to Mhasla

Tower and left next morning for Bombay. Tiger Memon (AA) paid

him (A-24) a sum of Rs.20,000/- for the job. Iijaz Pathan (A-137)

telephoned him from Dubai and warned him not to disclose it to

anybody. Further, Respondent (A-24) was contacted by the co-



                                                                  104
                                                              Page 104
accused for the disposal of 59 packets stored in a godown and he had

taken Rs. 5 lacs for doing the job and got the said goods destroyed

through his persons in Nagla Bunder Creek. He (A-24) disclosed that

the contraband used in Bombay Blast were the same which had been

unloaded at Shrivardhan.


179. Confessional statement of Imtiyaz Yunusmiya Ghavte (A-
     15):


      He (A-15) has disclosed that on 3.2.1993, Tiger Memon and

other people were there at Shekhadi, and Munna (A-24) was also one

of them. They were carrying bags on their back. When the bags were

opened it contained AK-56 rifles, handgrenades, magazines,

cartridges and    explosives. Tiger Memon was noting down the

calculation of the unloaded articles in his diary. He (A-15) has

disclosed that in the second week of February 1993, Munna (A-24)

was given two rifles at the instance of Bhai which were brought by

him in a suitcase. The accused witness, Shaikh Ali, Munna (A-24)

and three other persons were asked to sit in the tempo containing 84

bags of the explosives.




                                                                105
                                                            Page 105
180. Confessional statement of           Noor    Mohammed        Haji
     Mohammed Khan (A-50):


      He has also made the disclosure statement in respect of the

disposal of the 59 bags containing RDX in a godown which were

thrown with the help of Munna (A-24) at the instance of Rashid Khan.

He (A-50) has disclosed that he asked Rashid Khan to help him in

arranging the said material. Rashid told him that he would get it done

through his friend Munna (A-24), who has a large number of boys to

do the said job. They decided to pay Munna (A-24) a sum of Rs.5

lakhs for throwing the material and the 59 packets containing RDX in

the Nagla Creek by the boys of Munna (A-24).


181. Confessional statement of Nasir Abdul Kader Kewal
     @Nasir Dakhla (A-64):


      This accused (A-64) has disclosed about the landing at

Shekhadi in which Munna (A-24) had participated with others. He (A-

64) has disclosed about the full participation of Munna (A-24) in

landing and transportation of arms and ammunition brought from

Shekhadi to Bombay in the tempo of Haji and further disclosed that

he had always been moving alongwith Tiger Memon (AA) during the

said operation.


                                                                  106
                                                              Page 106
182. Confessional statement of Tulsi Ram Dhondu Surve (A-62):

       This accused had disclosed about the incident at Wangni Tower

on the relevant date and disclosed that Munna (A-24) was with Tiger

Memon at Wangni Tower alongwith other persons, and they first

unloaded the contraband at Wangni Tower and then uploaded it in the

jeep and tempo and most of the persons were armed with guns and

pistols there.


183. Confessional statement of Mohd. Dawood Mohd. Yusuf
     Khan (A-91):


       This accused has disclosed that 7-8 days before Ramzan in

1993 he went to M.K. Builders, Bandra on the instructions of Iijaz

Bhai (A-137) from Bombay and there he met with Dev who contacted

Iijaz Bhai (A-137) and told him that A-24 had arrived. At that time

Iijaz (A-137) and Munna (A-24) came out of the office, and gave him

the key of the vehicle parked outside. They all boarded the vehicle

and Munna (A-24) sat in the back seat. He (A-24) saw a black bag

lying on the back seat and Iijaz (A-137) told him about the three

stunguns lying inside the bag, and asked him to keep them in his

house for some time. When they reached Kurla, Iijaz (A-137) asked




                                                                107
                                                            Page 107
Munna (A-24) to leave. Thereupon, Munna (A-24) took the bag from

the back seat and handed it over to the accused witness (A-91).


184. Confessional statement of Shahnawaz Abdul Kadar
     Qureshi (A-29):

      He (A-29) has disclosed that on the last days of January or in

the first week of February, 1993, Javed Chikna asked (A-29) to

accompany him to receive the smuggled goods of Tiger Memon.

They went to Jetty and found three boys there including Munna (A-

24), who also participated in the landing and transportation.


185. Confessional statement of Shaikh Mohmed Ethesham Haji
     Gulam Rasool Shaikh (A-58):


      This accused (A-58) has disclosed that Munna was in close

association of Tiger Memon and of other co-accused, and was staying

in the house of Haji Yakoob @ Yakoob Yeda (AA).


186. Deposition of Mohd. Usman Jan Khan (PW.2):

      He has deposed that in December 1992, riots took place in

Bombay and Javed Chikna was wounded by a police bullet and was

admitted in the hospital. He (PW.2) and Shahnawaz visited him there.

While attending the funeral of the son of Aziz, he met Shafi, the



                                                                   108
                                                                Page 108
driver of Tiger Memon. Shafi spoke in confidence with Javed Chikna

and Javed Chikna took the witness accused alongwith him on the next

day to the coastal area where Tiger Memon's goods were coming. He

(PW.2) had participated in the landing and transportation alongwith

the other persons and Munna (A-24) was also one of them. He had

met Tiger Memon in hotel Big Splash in Rooms nos. 51, 54 and 55

booked. They stayed there and at that time they were told by Tiger

Memon that the government failed to stop the humiliation of Muslims,

thus, he had arranged some arms and ammunition from Pakistan

which were to reach on that day. In the said meeting, a large number

of persons were there including Munna (A-24).

      He has also deposed his participation in landing on 3 rd and 7th

February, 1993 in which the arms, ammunition, particularly AK-56

rifles, pistols and handgrenades had been smuggled. Karimullah was

also there. They had brought the material to Wangni Tower. After

unloading and opening the same they were again shifted in the jeeps

and tempos, and were brought to Bombay. Munna (A-24) was also in

the party.


187. The Special Judge had recorded the finding that the

corroborative material supported his involvement in the Shekhadi


                                                                 109
                                                              Page 109
landing and transportation, and he was absconding alongwith other

accused. However, he was acquitted from the first charge on the

basis of following reasons:

         "Due to his involvement in Shekhadi landing he
         could be convicted under Section 3(3) TADA, but it
         would be significant to note even the evidence
         pertaining to Shekhadi landings and acts committed
         by Munna (A-24) in connection with said landings
         for which he had been held guilty clearly reveal that
         Munna (A-24) was not the main person responsible
         for effecting the said landing nor had played any
         prominent role except escorting Tiger Memon who
         was effecting the said landing and the goods which
         were to be landed and were to be transported from
         Shekhadi to Wangni Tower and thereafter to
         Bombay. Even considering the role played by
         Munna (A-24) who participated in the said
         landing clearly appeared to be on much lower
         pedestal than the other who were primarily
         responsible in organizing and effecting the said
         landing i.e. Tiger Memon, A-14, A-17, A-15 and
         few more. Even considering his further acts for
         which he has been held guilty under Sections 5 and
         6 of TADA, it was clear that same were not
         committed by him in pursuance of any conspiracy of
         Bombay Blast. Further, considering the quantum
         of contraband arms and ammunitions of pistols,
         revolver and country made pistol he could be
         found guilty for commission of offences under
         Sections 5 and 6 TADA. Even considering his role
         played by him in disposal of RDX, it was clear
         that though he was involved still he was not the
         main person in disposal of the said RDX or the
         same was the material which was brought in
         Shekhkadi landing by Tiger Memon and stored
         in the godown. His involvement was only that he
         had been uptil hotel at Ghodbunder. He had hardly


                                                                    110
                                                                 Page 110
           played any prominent role in disposal of any RDX
           and had allowed his name to be used by other
           accused for knocking handsome amount of money
           from Noor Mohammed Haji Mohammed Khan (A-
           50) in whose godown such material was found
           stored. Evidence further revealed that he could
           receive only a sum of Rs.10,000/- out of the amount
           of Rs.5 lakhs which was taken by accused Mohd.
           Jindran and Rashid Khan from Noor Mohammed
           Haji Mohammed Khan (A-50) for disposal of the
           said material. Therefore, he cannot be held
           responsible for acting in pursuance of main
           conspiracy and his case would definitely fall on
           lower pedestal than such other accused persons
           who were repeatedly committed different acts in
           pursuance of main conspiracy."
                                             (emphasis added)


188.    The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.



189.   From the confessional statement made by the accused it can be

ascertained that he (A-24) was aware of the arms and ammunition being

landed. He stated that he was given arms and further, was told to sit on

alert. He also stated that Tiger Memon (AA) even taught him how to

use handgrenades and also paid him for his services. He was also later

contacted by co-accused for the disposal of 59 packets stored in a

godown and was paid Rs. 5 lakhs for the same. He further revealed that

the contraband used in the Bombay Blast of 12.3.1993, was the same as


                                                                    111
                                                                 Page 111
had been landed by him and other co-accused at Shrivardhan. Co-

accused Imtiyaz (A-15), Noor Mohammed (A-50), Nasir Dhakla (A-

64), Tulsi Ram (A-62) Dawood Yusuf (A-91), Shahnawaz (A-29) and

Ethesham (A-58) have corroborated the knowledge of the respondent

and the fact that he was present when the landing was taking place.


190.    The involvement and participation of Munna (A-24) was

throughout the main conspiracy. The order of the learned Designated

Court acquitting him on the charge of larger conspiracy is perverse, in

view of the evidence on record. Therefore, conspiracy stands proved.

Judgment to that extent is set aside and the appeal is allowed, and the

sentence is enhanced to 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.




                                                                      112
                                                                Page 112
              CRIMINAL APPEAL NO. 597 OF 2011


State of Maharashtra through CBI                      .. Appellant

                                 Versus

Sarfaraj Dawood Phanse                              ... Respondent


191. 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 the Bombay Blast case, Greater Bombay, in the

Bombay Blast Case No. 1/93, by which the respondent has been

convicted under Section 3(3) TADA and acquitted of the main charge

of conspiracy.


192. In addition to the main charge of conspiracy, the respondent (A-

55) has been found guilty for offence punishable under Section 3(3)

TADA, and on the said count, he has been convicted and sentenced to

suffer RI for 9 years, alongwith a fine of Rs.25,000/-, and in default,

to suffer RI for 6 months. However, the respondent has been acquitted

of the first charge of conspiracy.

      Hence, this appeal.




                                                                   113
                                                               Page 113
193. Shri Mukul Gupta, learned senior counsel appearing for the

appellant has submitted that acquittal of the respondent on the charge

of conspiracy is unwarranted and uncalled for as large number of co-

accused, particularly, Abdul Gani Ismail Turk (A-11), Suleman

Mohammed Kasam Ghavate (A-18), Ibrahim (A-41), Sajjad Alam (A-

61), Tulsi Ram Dhondu Surve (A-62), Mohd. Sultan Sayyed (A-90)

and the depositions of Harish Chandra Surve (PW-108) and Vijay

Govind More (PW-137) specifically revealed a very deep involvement

of the respondent in the offence and the evidence is sufficient

warranting his conviction for the charge of conspiracy also.

Therefore, the appeal deserves to be allowed.


194. On the contrary, Ms. Farhana Shah, learned counsel appearing

for the respondent has submitted that he had already served the

sentence of 10 years, though awarded the sentence of 9 years, and also

deposited a fine of Rs.25,000/-.     There is nothing on record to

implicate the said respondent in conspiracy, as he had no knowledge

as what was going to happen, and he had no intention to participate in

the offence, for which he has been charged so far as the conspiracy is

concerned. Therefore, no further conviction is required.




                                                                  114
                                                              Page 114
195. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


196. Respondent has not made any confessional statement.

Confessional statement of Abdul Gani Ismail Turk (A-11) :

197. The confessional statement of Abdul Gani Ismail Turk (A-11)

revealed that on 8th/9th February 1993, Suleman Mohammed Kasam

Ghavate (A-18) and (A-11) returned to Mhasla from Panvel after

meeting Tiger Memon (AA), when they were carrying the goods

brought from Mhasla and went to the house of accused Dawood @

Dawood Taklya Mohammed Phanse (A-14), and thereafter accused

Sarfaraj Dawood Phanse (A-55) had accompanied Abdul Gani Ismail

Turk (A-11) and Suleman Mohammed Kasam Ghavate (A-18) to

Bombay and they dropped Sarfaraz Dawood Phanse (A-55) at the

guest house at Bandra at the say of Dawood Phanse (A-14).

Confessional statement of          Dawood         @   Dawood   Taklya
Mohammed Phanse (A-14) :


198. The confessional statement of Dawood Phanse (A-14) revealed

that after his arrival from Bombay, Sarfaraz Dawood Phanse (A-55)

told him that the absconding accused Shafi had been to their house




                                                                  115
                                                               Page 115
and told that he had kept the weapons in the house of Muzammil

Umar Kadri (A-25).


Confessional statement of Suleman Mohammed Kasam Ghavate
(A-18) :

199. The confessional statement of Suleman Mohammed Kasam

Ghavate (A-18) disclosed that the said accused had been to Mhasla

alongwith Abdul Gani Ismail Turk (A-11) and Uttam Shantaram

Potdar (A-30) for bringing the part of the goods which had been

smuggled in the first landing operation. He also corroborated the

meeting of Abdul Gani Ismial Turk (A-11) and Suleman Mohammed

Kasam Ghavate (A-18) with Tiger Memon (AA) at Panvel and had

given the message of Tiger Memon (AA) to Dawood @ Dawood

Taklya Mohammed Phanse (A-14) and thereafter taken the accused

(A-55) alongwith him to Bombay.

Confessional statement of Sajjad Alam (A-61):

200. The confessional statement of Sajjad Alam (A-61) revealed that

on 20.1.1993 that said accused (A-61) had gone to the house of his

grandmother and at that time he found accused Muzammil Umar

Kadri (A-25) present taking 16 rifles and 32 magazines by a jeep

alongwith accused (A-55).



                                                               116
                                                           Page 116
Confessional statement of Tulsi Ram Dhondu Surve (A-62):

201. The confessional statement of Tulsi Ram Dhondu Surve (A-62)

disclosed that during the second landing and transportation operation

of contraband goods organised by Dawood @ Dawood Taklya

Mohammed Phanse (A-14) and Tiger Memon (AA), accused (A-55)

was also present near Wangni Tower alongwith other co-accused.

Confessional statement of Mohd. Sultan Sayyed (A-90):

202. The confessional statement of Mohd. Sultan Sayyed (A-90)

disclosed that on 12.2.1993, respondent (A-55) had been to the rest

house at Mhasla and enquired about R.K. Singh, Assistant Custom

Collector (A-102). The respondent (A-55) was carrying one plastic

bag containing Rs.3 lacs with him which he handed over to R.K.

Singh.


203. The Designated Court after considering the entire evidence

came to the following conclusion:

      "53-B) Thus considering material contained in
      confessions of above stated accused and so also
      evidence to which brief reference is made in the
      later part it can be safely said that A-55 who is son
      of main landing agent responsible for Shekhadi
      landing i.e. A-14 was involved not only in said
      landing but so also even earlier to same in
      committing nefarious activities. Needless to add
      that as denoted by further dilation involvement of


                                                                 117
                                                              Page 117
A-55 in commission of acts for which he is
charged at head 2ndly and, consequently in
commission of offence u/sec. 3(3) of TADA Act is
squarely borne from the same.
          With regard to argument canvassed that
material in above referred confession or that of
witnesses pertaining to events which had occurred
at Wangni Tower not disclosing any positive overt
act on part of A-55 or that at time of exchange of
goods he was not at Wangni Tower or that he was
only travelling on motor cycle etc. and as such
himself being involved by Investigating Agency in
case only because he is son of A-14 does not
appeal to mind after considering in proper
perceptive relevant material. Even accepting that
A-55 was then moving on motor cycle still
considering time of dead night at which he was
doing so, place at which he was moving etc.
clearly shows falsity of all said submissions after
considering material in entirety disclosing acts
committed by A-55. The same considered upon
earlier acts of A-55 in concealment of weapons at
his house in absence of his father etc. his
participation in going to house of A- 42 as
disclosed by aforesaid material clearly repels all
said submission.
          However, even carefully considering all
material/evidence available against A-55 and
same having not transcended beyond acts
committed by him in facilitating Dighi landing
and/or transportation of goods smuggled and
same failing to disclose any material showing his
nexus with conspiracy for which he is charged
with or conspiracy for which his father A-14 held
to be guilty it will be extremely difficult to accept
that his guilt for same can be said to have been
established by prosecution only on basis of his
guilt found to be established for commission of
offence u/sec.3 (3) of TADA Act".
                            (Emphasis added)


                                                           118
                                                        Page 118
204   We do not see any cogent reason to interfere with the impugned

judgment applying the parameters laid down by this court for

interference against the order of acquittal. The evidence on record

disclosed his involvement and association with Tiger Memon (AA) in

landing and transportation, but that is because his father Dawood

Phanse (A-14), was the landing agent. The appeal lacks merit, and is

accordingly, dismissed.




                                                                119
                                                            Page 119
             CRIMINAL APPEAL NO. 407 OF 2011


The State of Maharashtra through CBI                  .. Appellant

                                Versus

Ayub Ibrahim Patel                                  ... Respondent



205. This appeal has been preferred against the judgments and orders

dated 10.11.06 and 31.05.07, passed by the Special Judge of the

Designated Court under the TADA for the Bombay Blast case,

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

respondent Ayub Ibrahim Patel (A-72) has been found guilty for the

offences punishable under Section 3(3) TADA and on the said count

has been convicted and sentenced to suffer RI for 5 years alongwith a

fine of Rs.25,000/- and in default, to further undergo RI for 6 months.

He has also been found guilty under Section 5 TADA and has been

sentenced to suffer RI for 10 years and has been ordered to pay a fine

of Rs.50,000/-, in default of payment of fine, he has been ordered to

suffer further RI for one year. The Respondent has further been found

guilty under Section 6 TADA, and has been sentenced to suffer RI for

10 years and has been ordered to pay a fine of Rs.50,000/-. In default



                                                                   120
                                                               Page 120
of payment of fine, he has been sentenced to suffer further RI for one

year. The Respondent also stands convicted under Sections 3 and 7

read with Section 25(1-A)(1-B)(a) of the Arms Act. However, he has

been acquitted of the charge of conspiracy.

      Hence, this appeal.

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

appellant has submitted that the respondent had been found to be in

the unauthorized possession of 20 hand grenades, which were part of

the consignment of arms that had been smuggled into India by the

terrorists. The said hand grenades were recovered from his house

upon his disclosure statement. Therefore, he ought to have been held

guilty for the charge of conspiracy.



207. On the contrary, Shri S.P Sinha, learned counsel appearing for

the respondent has submitted that the respondent has not preferred any

appeal against his conviction on any other charges. He has already

served out the sentence that was awarded to him, and has also paid

the fine. After appreciating the evidence on record, the Special Judge

has acquitted the respondent of the charge of conspiracy.The facts of




                                                                  121
                                                              Page 121
the case do not warrant any further interference. Thus, the appeal is

liable to be dismissed.


208. We have considered the rival submissions made by the learned

counsel for the parties and perused the evidence on record.


209.    Confessional statement of Baba alias Ibrahim Mussa

Chauhan (A- 41) revealed that he was well acquainted with Abu

Salem (AA), and Anis Ibrahim Kaskar, brother of Dawood Ibrahim.

On 15th January 1993, Salem telephoned him (A-41) to find a garage

equipped with closed shutters. In this regard he (A-41) spoke to Salem

and Anis Ibrahim Kaskar several times. Salem asked him (A-41) to

keep 2/3 AK-56 Rifles for a few days and also told him that they

should be kept by him (A-41) at his house. On 16 th January, 1993

Salem came to his house and then they went to the house of Sanjay

Dutt (A-117) and delivered some of the contraband arms to him. A

bag containing 20 grenades was kept by him (A-41) in the car owned

by Sameer (A-53) and a bag containing 3 Rifles, 16 Magazines, 25

hand grenades and 750 bullets was taken by him (A-41). The said

goods were not taken back by Salem as promised, so he (A-41)

contacted Salem to take it back. A-41 received a message to give 2



                                                                  122
                                                              Page 122
AK-56 Rifles, 6 Magazines to Salem Kurla. After some time Salem

met A-41 and the latter informed Salem that remaining goods were

kept with a man named Ayub residing at Oshivara . At that time

Salem had 30 loaded magazines wrapped in a plastic bag and he

handed over the bag over to A-41 and told him (A-41) that he had

spoken to Ayub via telephone and asked him to keep the goods with

A-41. Accordingly, on the same day Ayub came with a bag

containing 1 AK -56 Rifle, which along with magazines and a bag

was kept at one place. After 2/3 days, Salem came to A-41 and

handed over a vehicle asking him to leave it at a place near Ram and

Shyam Talkies at Jogeshwari and hand over the vehicle to Ayub and

there were further instructions for Ayub to keep all the goods except

hand grenades in the car and to leave the car near the office of Salem.

A-41 handed over the car to Ayub and conveyed the message. After

Bombay blast, Salem Kurla was arrested and on his information

police arrested A- 41 on or about 28th of March 1993. After his arrest,

the father of A-41 obtained the bag which he had kept with Ayub

through Haji Ismail and produced it before the police.


210. Recovery panchnamas ­ Exts.154-155 make it clear that Sub-

Inspector Nerlekar had interrogated the accused Ayub Ibrahim Patel


                                                                   123
                                                               Page 123
(A-72) and he expressed his desire to make the disclosure statement.

At that time, two Panchas were called through the Constable and in

their presence, Ayub Ibrahim Patel (A-72) made the statement that he

had concealed the hand-grenades, the recovery of which he would get

effected. The recovery was made and proved by Nerlekar (PW.605)

and the panch witness (PW.44). According to the said witnesses, after

recording the disclosure statement, i.e., the panchnama, the accused

(A-72) led the Panchas and police team to room no.202 on the second

floor of Noora Building in Dalwai compound, opposite Ajit Glass

Factory Oshiwara(West). The appellant (A-72) rang the door bell of

the said room and the door was opened by one lady and she was

introduced by A-72 as his wife named Smt. Kausar. Thereafter, Ayub

Ibrahim Patel (A-72) led the panchas and police in the said room and

took out a plastic bag from a steel cupboard near the eastern wall of

the house. The said bag contained 20 hand-grenades. The same was

handed over to the Sub-Inspector Nerlekar (PW ­ 605) who drew a

panchnama and left for Worli Police Station with the hand grenades.


211. The Special Judge after appreciating the entire evidence

summarised the whole case against Ayub Ibrahim Patel (A-72) as

under:


                                                                 124
                                                             Page 124
       "However, after carefully considering the matters
from the said confession reveals that A-41 had handed
over the bag containing 25 hand grenades to Iqbal Tunda
and had informed about the same to Salem and Iqbal
Tunda had informed him of the same being kept with
Ayub residing at Oshiwara still there appears full
substance in the criticism advanced by the ld. Defence
counsel that hardly there exists any material on record to
come to the conclusion that the person by name Ayub
from Oshiwara referred in the said confession is A-72.
There is also further substance in the defence criticism in
such an eventuality 25 hand grenades could have been
found with A-72.....Thus considering the aforesaid
evidence of recovery and particularly statement made by
A-72 showing his authorship in keeping the relevant
hand grenades and apart from same A-72 at the trial
having not given any other explanation about the reason
because of which such hand grenades were in his house
or his knowledge about the same all the said factors
establishes himself being in possession of such
contraband material attracting the provisions of Sec. 5 of
TADA. Now considering the statutory presumption
arising out of the relevant facets established and the same
having remained unrebutted at the trial will safely lead to
only conclusion of A-72 of having possessed the same
for the purpose of terrorist act or terrorist activity. The
same is apparent in view of the law regarding the same as
explained by the Hon'ble Constitutional Bench of the
Apex Court in the decision in the case of Sanjay Dutt v.
State of Maharashtra reported in 1995(5) SCC 410. In
view of the same A-72 will be required to be held guilty
for commission of offence u/s 5 of TADA.
       Though the aforesaid evidence clearly establishes
of A-72 to be in possession of such contraband material
within notified area still there being no evidence to
come to the conclusion that the same were part &
parcel of the consignment smuggled into country by
co-conspirators for commission of terrorist acts for
which the charge at head 1stIy is framed, A-72 cannot
be held guilty for the said conspiracy. However,


                                                              125
                                                         Page 125
      possessing huge quantity of hand grenades considered
      with other evidence not denoting involvement of A-72 in
      any terrorist activity also leads to the conclusion of the
      same being either kept with him for storage purpose
      and/or for assisting some other co-conspirators for
      commission of terrorist acts. Needless to add that the
      same is also suggestive of A-72 having made the
      preparation for commission of terrorist acts. In view of
      the same A-72 will be also required to be held guilty for
      commission of offence u/s. 3 (3) of TADA. Similarly
      considering the quantity of hand grenades found in
      possession of A-72 the same also denotes of himself
      having committed offence u/s. 6 of TADA and so also
      the offence punishable u/s.3 & 7 r/w Sec. 25(1-A) (I-B)
      (a) of Arms Act.
             In light of discussion made hereinabove Point Nos.
      170 to 173 will be required to be answered in consonance
      with the conclusion arrived during the said discussion i.e.
      A-72 having committed all the said offences for which
      the said points are framed but for the reasons stated
      hereinabove. However, hardly there being any evidence
      of A-72 of having committed the said offence in
      pursuance of conspiracy for which he has been charged
      due to nexus of material found with him being not
      established with the material smuggled for commission
      of Serial bomb Blast and there being no other evidence
      he will be required to be absolved from the offence of
      conspiracy for which he is charged with". (Emphasis
      added)

212. The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


213. From the above discussion it is evident that Baba Chauhan (A-

41) had given 20 hand grenades to one Ayub resident of Oshiwara.

However, he has also disclosed that after his arrest on 28th March,


                                                                    126
                                                               Page 126
1993, the said contraband had been produced before the police by his

father through Haji Ismail. In view of the above, the conclusion

reached by the learned Designated Court that there is nothing on the

record to establish that Ayub of Oshiwara could be Ayub (A-72), does

not require interference. In such a fact-situation, the respondent (A-

72) is entitled to benefit of doubt, so far as the charge of conspiracy is

concerned. The appeal lacks merit, and is accordingly, dismissed.




                                                                     127
                                                                 Page 127
              CRIMINAL APPEAL NO. 1025 OF 2012


State of Maharashtra                                 ...Appellant

                                Versus

Mohd. Shahid Nizamuddin Qureshi                      ... Respondent


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

said respondent has been convicted under Section 3(3) TADA, and has

been awarded a sentence of 10 years rigorous imprisonment, alongwith

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

undergo RI for six months. He has been acquitted of some of the other

charges including the main charge of conspiracy.


       Hence, this appeal.


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

appellant, has submitted that there is enough evidence to show the deep

involvement of Mohd. Shahid Nizamuddin Qureshi (A-135)           in the

said crime and, therefore, he ought not to have been acquitted for the

charge of conspiracy.



                                                                    128
                                                               Page 128
216.    Ms. Farhana Shah, learned counsel appearing for the

respondent (A-135), has submitted that he has already suffered

tremendously. He has served 11-1/2 years of sentence, though he was

awarded only 10 years rigorous imprisonment, and has also deposited

the fine. He has not filed any appeal against his conviction, as he has

reconciled himself with his fate. There is nothing on record to show that

the accused (A-135) had any knowledge of the contraband, or how the

same was going to be used. He had no intention to harm any one.

Thus, the findings recorded by the Designated Court on this issue, do

not require any interference.

217.    We have considered the rival submissions made by the learned

counsel for the parties and perused the record.


218.    The confession of the accused (A-135) was recorded, however,

the same has been discarded by the Special Judge on the ground that the

police officer who had recorded the confessional statement, had not

ensured compliance with Section 15 TADA and Rule 15(3) TADA

Rules, 1987.


219.    However, as far as the charge of conspiracy is concerned, the

other evidence is of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-



                                                                     129
                                                                 Page 129
64) who has revealed, that in either at the end of January 1993 or in the

beginning of February 1993, at the instance of Tiger Memon (AA),

Javed Chikna, the accused (A-64) etc., had participated in the landing

of contraband goods such as rifles, bullets, handgrenades, detonators,

RDX etc. at the Shekhadi coast. The said goods had been transported to

the Wangni Tower, and here, the bags containing the contraband had

been opened and weapons, cartridges etc., had thereafter been

concealed in fake cavities of the vehicles that had been arranged for the

transportation of the smuggled goods into Bombay. During the said

operation, the accused (A-135) had actively participated alongwith

Javed Chikna, and various other associates. He has further disclosed

that 3-4 days after the first landing, a second landing had taken place, in

which the contraband were smuggled in through Shekhadi coast, in

which yet again, the accused (A-135) had actively participated. Usman

(PW.2) has also deposed that the accused (A-135) had in fact,

participated in the said landing, as well as in the transportation of the

contraband material.


220.    However, a question does arise with respect to whether the

accused (A-135) had been aware of the contents of the contraband, and

whether he had known the purpose for which the weapons etc., had


                                                                      130
                                                                   Page 130
been smuggled into India. As per the material on record, it becomes

evident that Tiger Memon (AA) and his close associates, including the

accused (A-135), had first gone to Hotel Big Splash at Alibagh, and

from there they had gone to the seashore to participate in the said

landing. At this time, the close associates of Tiger Memon (AA), had

been fully armed with AK-47/56 rifles, revolvers, magazines and

cartridges. They had taken up positions near the seashore to prevent any

kind of interference. The goods had then arrived in large packets, which

had been unloaded with the help of some villagers who were already

present there, as the same had been deployed by Dawood @ Dawood

Taklya Mohammed Phanse(A-14). After the loading of the goods into

a truck, the contraband had been brought to Wangni Tower. All the

packets had been taken inside the tower, and when the same had been

opened, it had become evident that the packets contained explosives,

cartridges and arms. These arms had then subsequently, been filled into

secret cavities that had been created in the jeeps, and were then taken

away.    After 2-3 days, Yeda Yakub, Riaz Khatri,        Munna Jadia,

Ehtesham (A-58), Akbar and Karimullah had gone in a Maruti van and

had picked up Nasir (A-64).     Yeda Yakub had told them that more

arms were scheduled to arrive for Tiger Memon (AA) at the Shekhadi



                                                                    131
                                                                Page 131
coast, for the purpose of which, they would have to go there. They had

thus, participated in the second landing as well, and had brought in the

said goods. At such time, the associates of Tiger Memon (AA) had also

been present there, alongwith Shahid Qureshi (A-135). Following the

orders of Tiger Memon (AA), the packets of arms and explosives had

been loaded into a jeep and a tempo, and had been taken to Bombay.


221.     The deposition of Usman Ahmed Jan Khan (PW-2) has

revealed that Tiger Memon (AA) had convened a meeting at the hotel

Big Splash, and had expressed his desire to take revenge for the

demolition of the Babri Masjid. Shahid (A-135) had also been present

at the said meeting. From the hotel, they had left for Shekhadi Coast in

jeeps.   At about 11 p.m., Tiger Memon (AA) and his associates,

including the accused (A-135) had gone to high sea, in a boat. The said

boat had taken them to a big red speed boat. Tiger Memon (AA) had

gone over to the other boat, and had brought out seven bags of military

colour from the said speed boat. The bags had contained guns, pistols

and handgrenades, and also AK-56 rifles.




                                                                    132
                                                                Page 132
222.    The Designated Court, after appreciating the entire evidence on

record with respect to Nizammudin Qureshi, has recorded the following

conclusion:

         "All said evidence considered in proper perspective
         clearly reveals close association of A-135 with Tiger
         Memon and/or himself man of confidence of Tiger
         Memon. All said evidence considered in proper
         perspective clearly reveals involvement of A-135 in
         Shekhadi landing episode.
                    Similarly entire evidence having remained
         confined to act committed by A-135 of assisting and
         aiding Shekhadi landing and transportation
         operation and there existing no cementing material
         revealing his involvement in conspiracy he will be
         required to be held not guilty for offence of
         conspiracy for which charge is framed at head 1st ly."


223.    Undoubtedly, the respondent had participated in the landing at

Shekhadi when the contraband were smuggled into India. However, as

the evidence on record as well as the findings recorded by the

Designated Court remain to the effect that he had not been aware of the

articles smuggled, he cannot be held liable for punishment for

conspiracy.


224.    The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.




                                                                     133
                                                                  Page 133
225.   We concur with the finding recorded by the learned Designated

Court, and find no reason to interfere with the order passed by the

Special Judge. The appeal lacks merit, and is accordingly dismissed.




                                                                   134
                                                                Page 134
                CRIMINAL APPEAL NO. 599 OF 2011


State of Maharashtra                                   ...Appellant

                                Versus

Shaikh Mohd. Ethesham                                  ...Respondent


226. 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 (A-58) was found guilty under Section 3(3) TADA and

awarded a sentence of 10 years with a fine of Rs.25,000/- with

suitable RI in default of payment of fine, for the commission of

offence of conspiracy to commit terrorist act; and further sentenced to

suffer RI for 10 years with a fine of Rs. 25,000/- with suitable RI in

default of payment of fine, for the commission of offence punishable

under Section 3(3) TADA, for commission of such acts as abovesaid.

However, he has been acquitted of the general charge of conspiracy

i.e. first charge.


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




                                                                     135
                                                               Page 135
A.    In addition to the general charge of conspiracy, the respondent

(A-58) had been charged under Section 3(3) TADA, firstly on the

ground, that he had participated and assisted Tiger Memon (AA) and

his associates in smuggling, landing and transportation of arms,

ammunition etc., into India for the purpose of terrorist activities.

Secondly, he had assisted in landing at Shekhadi on 3 rd and 7th

February, 1993 and had further agreed to undergo a         training in

Pakistan for handling of arms, ammunition and explosives for

committing terrorist acts and had even attended a conspirational

meeting at Dubai to plan commission of terrorist acts.

B.    After conclusion of the trial, the Designated Court convicted

the respondent as referred to hereinabove, but acquitted of the charge

of larger conspiracy.

      Hence, this appeal.



228. Shri Mukul Gupta, learned senior counsel appearing on behalf

of the State, has submitted that the respondent had been a very close

associate of Tiger Memon and had participated in landing and went to

Dubai for the purpose of getting training in handling of arms,

ammunition and explosives, attending the conspiratorial meetings at



                                                                  136
                                                              Page 136
Dubai.   Therefore, the learned     Designated Court under TADA,

committed an error in acquitting him of the first charge of larger

conspiracy. Thus, the appeal deserves to be allowed.


229. Ms. Farhana Shah, learned counsel appearing on behalf of the

respondent, has opposed the appeal contending that the respondent

had already served the sentence of 10 years and paid the fine. He did

not file any appeal against the conviction. Though he went to Dubai

for going to Pakistan for having training in handling of arms,

ammunition and explosives, but did not get any training whatsoever,

and his acts were prior to hatching of the conspiracy. He did not

participate in any of the illegal activity/conspiracy subsequent to

coming back from Dubai. Therefore, the order impugned does not

need any interference whatsoever.


230. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


231. The evidence against the said respondent (A-58) is disclosed in

the confessional statements of Nasir Abdul Kadar Kewal @ Nasir

Dhakla (A-64), Shaikh Kasam @ Babulal Ismail Shaikh (A-109),

Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Shaikh (A-126),


                                                                 137
                                                             Page 137
Mohd. Iqbal Shaikh Ibrahim (A-127), Shahnawaz Khan Faiz Mohd.

Khan (A-128) and Murad Ibrahim Khan (A-130).                  The said

confessional statements revealed that the respondent (A-58) had

participated in the landing at Shekhadi. He was present at the Wangni

Tower at the time of shifting the contraband and had also participated

in second landing at Shekhadi. He had also attended the meeting in a

partially constructed building in Khar and agreed to go out of India for

receiving the arms' training in Pakistan.      He went to Dubai on

14.2.1993, but could not go to Pakistan and stayed in Dubai for 14

days and returned to India on 2.3.1993. While in Dubai, he had taken

an oath of secrecy that he would not disclose anything about the

conspiracy to anyone.

      The aforesaid evidence also stands corroborated by the

evidence of Usman Ahmed Jan Khan (PW-2) and Prakash Ramugade

(PW-207).


232. The Designated Court after appreciating the entire evidence on

record reached the conclusion as under:

      "Thus considering material in the confession of A-58
      and aforesaid co-accused the same leads to the
      conclusion of A-58 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


                                                                   138
                                                                Page 138
which he is charged at head 2nd ly clause `a'. In the
said context it is necessary to add that considering
evidence pertaining to Shekhadi landing in proper
perspective and role carried out by A-58 in the same
and during said operation contraband material being
opened at the sea shore and so also exchanged from
truck to other vehicles at Wangni Tower, the defence
submission that A-58 was not aware about nature of
contraband material to be brought etc. does not
appeal to mind. Needless to add that considering
material in confession of other co-accused regarding
Shekhadi landing episode it is difficult to accept such
submission. Needless to add that A-58 was man of
close confidence of Tiger Memon is being also
revealed from fact of himself being given weapon
during relevant operation.
       Similarly A-58 himself having participated in
said operation in which large quantity of arms,
ammunition and explosives were smuggled into India
leading to legitimate conclusion of same being
brought for commission of terrorist act and still A-58
thereafter having agreed to undergo weapon training
in operating arms, ammunition in foreign country and
in said process having gone to Dubai but being
required to return in view of further arrangements
being not made clearly denotes A-58 was party to
conspiracy to commit terrorist act punishable u/sec.
3(3) of TADA Act.
       However all said acts committed by A-58 being
much prior to main conspiracy of committing serial
blast having taken final shape i.e. during
conspiratorial meetings held in month of March,
1993 and A-58 after returning from Dubai having
not participated in any act furthering object of
larger conspiracy for which charge at head 1st ly in
framed he cannot be held liable for larger conspiracy
and he will be required to be held guilty for
conspiracy to commit terrorist act as stated
aforesaid."
                                     (Emphasis added)


                                                             139
                                                          Page 139
233. The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.


234. In view of the fact that the respondent has already served the

sentence of 10 years and paid the fine, therefore we are not inclined to

allow this appeal. It is accordingly dismissed.




                                                                   140
                                                                Page 140
              CRIMINAL APPEAL NO. 395 of 2011


State of Maharashtra                                ...Appellant

                                Versus

Farooq Illiyas Motorwala                           ... Respondent



235. This appeal has been preferred against the final judgment and

order dated 2.8.2007, passed by the Special Judge of the Designated

Court under the TADA in Bombay Blast Case No.1 of 1993, by which

the respondent has been found guilty for the offences under Section

3(3), and awarded 13 years RI with a fine of Rs.25,000/- and in

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

also convicted under Section 3(3) TADA, and awarded 7 years RI

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

further RI for 6 months. However, he has been acquitted of some

other charges including the larger conspiracy.


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

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

the respondent was that in pursuance of the conspiracy, he visited

Dubai on a fictitious passport No. H-118352, obtained by him in the


                                                                     141
                                                               Page 141
name of Kazi Salim Illyas and participated in conspiratorial meeting

held at Dubai alongwith other co-accused Mohmed Jamil Omar

Khatlab (PW-1) (approver), who had been recruited for undergoing

weapons training in Pakistan.

B.    After conclusion of the trial, the Designated Court convicted

the respondent as referred to hereinabove, but acquitted of some

charges including the larger conspiracy.

      Hence, this appeal.


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

appellant has submitted that there was sufficient material on record to

show the involvement of the respondent in larger conspiracy and the

Special Judge has committed an error in acquitting him for the said

charge. Thus, the appeal should be allowed.


238. On the contrary, Mr. S.P. Sinha, learned counsel appearing for

the respondent (A-75) has submitted that the respondent has been

awarded 13 years' rigorous imprisonment and a fine of Rs. 50,000/-.

The respondent has already served the sentence and also deposited the

fine. Therefore, at such a belated stage, this court should not interfere

against the order of acquittal, in view of the parameters laid down by



                                                                    142
                                                                 Page 142
this court, for entertaining the appeal against acquittal. Thus, the

appeal is liable to be dismissed.

239. We have considered the rival submissions made by learned

counsel for the parties and perused the record.


240. Evidence against the respondent (A-75):

(a)   Confessional statement of the respondent (A-75)

(b)   Confessional statement of Mohd. Salim Mira Moiddin Shaikh
      @ Salim Kutta (A-134)

(c)   Deposition of Mohd. Jabir Umar Khatlab (PW-1)

(d)   Deposition of Tota Tiwari (PW-340)

(e)   Deposition of Rajan Dhoble (PW-585)


Confessional statement of the respondent (A-75):


241. He disclosed that he indulged in smuggling of goods and used

to go to Dubai frequently. He was introduced by his friend Latif

Bagwala to Tahir Merchant. The respondent (A-75) had a passport,

however, he obtained another passport in a fictitious name i.e. Kazi

Salim Illyas Majid Rajkotwala and on a fictitious address. On

15.1.1993, he went to Dubai on the passport obtained in a fictitious

name and attended the meetings with Tahir Merchant. Respondent



                                                                143
                                                            Page 143
(A-75) called his friend Mohd. Jamil Omar Khatlab (PW.1)

(approver) to Dubai and sent him to undergo arms' training in

Pakistan. Respondent (A-75) returned to Bombay on 27.2.1993 and

Mohd. Jamil Omar Khatlab (PW.1) also came back after having

training in Pakistan in handling weapons. After the Bombay blast,

Mohd. Jamil Omar Khatlab (PW.1) had told him (A-75) that a person

had come from Tahir Merchant and asked him to keep guns and

pistols.

Confessional statement of Mohd. Salim Mira Moiddin Shaikh @
Salim Kutta (A-134):


242.       The said co-accused did not name the respondent (A-75)

specifically. However he corroborated that there were 7 conspiratorial

meetings held in Dubai at the behest of Dawood Ibrahim and Mustafa

Majnu and an oath was administered to them for taking revenge from

Hindus for the damage of Babri Masjid.


243. Mohd. Jamil Omar Khatlab (PW-1) deposed that on

11.2.1993, respondent (A-75) took him to Tiger Memon (AA) at Al-

Husseini Building. Tiger Memon (AA) told them that during

December 1992 and January 1993, Muslims had greatly suffered.

Babri Masjid was demolished and Indian Government remained a


                                                                  144
                                                              Page 144
mere spectator. So they should take revenge. Thereafter they were

administered oath to take revenge. He further disclosed that Tiger

Memon had told them that he would teach a lesson to the Indian

Government by exploding bombs at various places and attack people

with rifles and for that purpose he wanted persons who can participate

in such actions. At this juncture, Mohmed Jamil Omar Khatlab

(PW.1) and respondent (A-75) had agreed to participate. Mohd. Jamil

Omar Khatlab (PW.1) told Tiger Memon (AA) that he did not know

how to handle arms. Thereafter, the respondent (A-75) told Mohd.

Jamil Omar Khatlab (PW.1) that he would be sent for weapons

training in Pakistan where I.S.I. would train them and Mohd. Jamil

Omar Khatlab (PW.1) agreed to go to Pakistan for the same. Tiger

Memon (AA) had told them that young Muslims from all over India

would be sent to Pakistan for weapons' training and they decided to

destroy the society and create panic and for that purpose he would get

all the required assistance from Pakistan.         They were also

administered oath again by Tiger Memon (AA) that none of them

would disclose any information about the plan. On 20.2.1993, Mohd.

Jamil Omar Khatlab (PW.1) got a phone call from the respondent (A-

75) from Dubai who instructed him to reach Dubai on 24.2.1993. He



                                                                  145
                                                              Page 145
was also informed that one Walter D'Souza, friend of respondent (A-

75) would hand over the passport of Mohd. Jamil Omar Khatlab

(PW.1). On 24.2.1993, he (PW.1) received the passport and he left

for Dubai on 25.2.1993. This witness also identified the air tickets

etc. in the court. Mohd. Jamil Omar Khatlab (PW.1) further deposed

that he reached Dubai airport on 25.2.1993 at about 4.45 p.m. and

respondent (A-75) and one Tahir Bhai received him at the airport and

Tahir Bhai had made arrangements for his stay at Dubai. On

26.2.1993, a meeting of Tahir Merchant with the respondent (A-75)

took place at the flat of Tahir Merchant and in the said meeting Tahir

Merchant told Mohd. Jamil Omar Khatlab (PW.1) that he had to leave

for Islamabad where he would be given military training to fight

against Hindus and particularly for throwing bombs and operating fire

arms.


244. The case of the prosecution was further corroborated by the

Investigating Officer as well as by the panch witnesses, particularly,

Tota Tiwari (PW-340) and Rajan Dhoble (PW-585) and the

documents     (i.e   his   fictitious   passport,   embarkation   and

disembarkation cards.) which facilitated the journey of the

respondent (A-75) from Bombay to Dubai and Dubai to Bombay.


                                                                  146
                                                              Page 146
245. The learned Designated Court after appreciating the entire

evidence held:

      "19. Thus, considering all the aforesaid self-
      eloquent matters revealed from the evidence of PW-1,
      the same squarely reveals the manner in which A-75
      had taken PW-1 to Tiger Memon. It is significant to
      note that upon Tiger Memon telling the matters
      narrated in clause (3), PW-1 had expressed to him
      that he was not knowing to operate weapon and
      thereafter A-75 had told PW-1 that he will be sent for
      weapon training at Pakistan where ISI will help him
      in training and PW-1 had agreed for going to
      Pakistan for weapon training.
      20.Since the further matters stated in further part of
      evidence of PW-1 having revealed the manner in
      which he had been to Dubai, A-75 along with Tahir
      Bhai had been to the airport for receiving him and
      the further acts committed by A-75 and the fact of
      PW-1 having been to Pakistan and having
      participated in training programme, clearly reveals
      PW-1 was initiated in conspiracy by A-75 i.e. the
      conspiracy to which he was party since earlier.
      Needless to add that all the said material clearly
      establishes A-75 having committed the offence under
      Section 3(3) of TADA for which he was charged with
      and so also himself being in conspiracy for
      commission of terrorist acts as observed earlier
      during the discussion made in Part-10.
      21.Though the aforesaid evidence clearly reveals
      involvement of A-75 in a conspiracy to commit
      terrorist acts and himself having initiated PW-1 in the
      said conspiracy still the evidence reveals that A-75
      had not committed any act after 26th February 1993
      for furthering the object of conspiracy to which he
      was party or to the larger conspiracy for which he
      has been charged at head firstly.
      22.Now considering the evidence which has surfaced
      at trial, it is clear that the targets for commission of


                                                                    147
                                                                 Page 147
       bomb Blast at Bombay were discussed by Tiger
       Memon for the first time to other co-conspirators in
       the meetings which had taken place after 6th of
       March, 1993 at the house of Babloo or Mubina.
       Thus, there being hardly any evidence on record of
       A-75 being aware that the serial bomb Blast were to
       be committed by committing explosions at such
       place and/or himself having not participated in any
       other operation after 26th February, 1993, though
       the evidence reveals his involvement in conspiracy
       still the same does not transcend further than
       establishing involvement of A-75 in the conspiracy
       other than commission of terrorist acts made
       punishable under Section 3(3) of TADA. Since
       knowledge of the object of conspiracy is the vital part
       for determining liability of conspirator in a
       conspiracy to commit the offences and even though
       some suspicion might be arising due to the acts
       committed by A-75 also being involved in larger
       conspiracy as every conspirator need not know every
       act to be committed by other conspirators or the
       other conspirators still the same cannot take the
       place of proof of involvement of A-75 for the larger
       conspiracy."
                                      (Emphasis added)


246.    The Special Judge while dealing with the sentence part

observed :

       "Thus guilt of A-75 for offence of conspiracy has
       remained confined to the extent of himself being
       guilty for offence of conspiracy to commit terrorist
       act. Needless to add that it was neither prosecution
       case nor any evidence has surfaced on record
       revealing that either A-75 had participated in any of
       the further operation which were effected for
       furthering the larger object of conspiracy and/or



                                                                    148
                                                                 Page 148
      himself being aware that the explosions were to be
      committed in Bombay by the co-conspirators.
                                xxxxx
             Thus in light of reasoning given aforesaid, it
      will be difficult to accept submission of ld. Chief P.P.
      to give maximum to A-75 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 inducting such person into conspiracy
      is a heinous act still merely on said count awarding
      maximum punishment to accused responsible for
      same de hors considering the extent of other acts
      committed by him and thereby assessing the element
      of criminality existing in him would amount allowing
      oneself to be swayed by feelings and would amount of
      having acted without any logical reasoning behind it.
      Needless to add that an adult person joining any
      conspiracy would be always due to such decision
      taken by him the entire liability of his such a decision
      cannot be fastened upon other who have advocated
      with him for joining such a conspiracy. Having
      regard to the same, while awarding punishment to A-
      75 it will be necessary to take into account the gravity
      of the act committed by him and so also the other
      circumstances relevant to same as urged on his
      behalf or even otherwise.
             However, at the same time the relevant facet
      spelt from evidence that A-75 had not committed any
      terrorist act at any point of time or after 24th Feb.,
      1993 any act furthering the object of conspiracy for
      which he has been found to be guilty or furthering
      object of larger conspiracy of which outcome was
      Serial Bomb Blast."


247. The parameters laid down by this Court in entertaining the

appeal against the order of acquittal have to be applied.



                                                                    149
                                                                 Page 149
248. The Special Judge recorded the finding that the respondent did

not do anything to further the object of conspiracy. However, he was

involved in sending Mohd. Jamil Omar Khatlab (PW-1) to Dubai and

further to Pakistan for getting initiated in the training of weapons. The

respondent received the co-accused at the airport and attended 7

conspiratorial meetings held in Dubai. Admittedly, the respondent

who travelled to Dubai had a fictitious passport for a particular

purpose. He further went to Pakistan and undertook the training in

handling the arms, ammunition and explosives. He met Tiger Memon

(AA) in Dubai, who told him that they would teach a lesson to the

Indian Government by exploding bombs etc. However, the learned

Designated Court did not convict him on the charge of conspiracy.

Such a conclusion is not worth acceptance and the said finding being

perverse, is liable to be set aside.

     The appeal is allowed. The respondent has now been convicted

for the charge first and awarded the life imprisonment. He 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.



                                                                     150
                                                                 Page 150
               CRIMINAL APPEAL NO. 397 of 2011


State of Maharashtra through CBI                       ...Appellant

                                 Versus

Mohd. Rafiq Usman Shaikh                             ... Respondent


249.    This appeal has been preferred against the final judgment and

order dated 2.8.2007 passed by the Special Judge of the Designated

Court under the TADA in Bombay Blast Case No.1 of 1993, by which

the respondent/accused has been convicted for the offences punishable

under Section 3 (3) TADA and awarded 7 years RI with a fine of

Rs.15,000/- and in default of payment of fine, to suffer further RI for 3

months on each count. However, he has been acquitted of the general

charge of conspiracy.


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

A.      In addition to the main charge of conspiracy, the appellant (A-

94) was charged under Section 3(3) TADA, as he had visited Pakistan

alongwith other co-conspirators via Dubai and underwent training in

handling of arms, ammunition and explosives with the object of

committing terrorist acts and even attended the meetings at the

residences of Nazir Ahmed Anwar Shaikh @ Babloo (AA) and Mubina


                                                                        151
                                                                  Page 151
Bai where plans for committing terrorist acts were discussed/finalised.

Further, he had also taken oath in the name of Quran while in Dubai,

not to disclose to anybody about the conspiracy.

B.      After conclusion of the trial, the respondent was held guilty of

the charges as referred to hereinabove but has been acquitted of the

charge of conspiracy.

        Hence, this appeal.


251.    Mr. Mukul Gupta, learned senior counsel appearing for the

appellant has submitted that the Special Judge was not justified in

imposing such a lenient punishment in view of the fact that the

respondent (A-94) had gone to Pakistan and acquired the knowledge in

handling of arms and ammunition during training. He had attended the

conspiratorial meetings wherein conspiracy was not only hatched, but

plans for committing terrorist acts were also given final stage.

Moreover, he had taken oath as to non-disclosure of information about

the conspiracy in the name of Quran in Dubai. Therefore, the appeal

deserves to be allowed.



252.    On the contrary, Ms. Farhana Shah, learned counsel appearing

for the respondent has submitted that the respondent (A-94) had been


                                                                    152
                                                                Page 152
awarded 7 years RI which he has already served. He had also deposited

the fine imposed upon him. The deposition of Mohd. Usman Jan Khan

(PW.2) is not worth reliance for the reason that he was also an accused

who, subsequently turned to be an approver. Moreover, Mohd. Usman

Jan Khan (PW.2) had not named him (A-94) specifically as being

present in the conspiratorial meeting on 10.3.1993 and there is no

material even on record to show that the respondent (A-94) was present

on 11.3.1993 in the conspiratorial meeting at Al-Husseini building.

Therefore, the respondent (A-94) cannot be discriminated against, as his

role had been like all others particularly, Gul Mohamamed @ Gullu

Noor Mohmed Shaikh (A-77), Mohmed Hanif Mohmed Usman Shaikh

(A-92), Mohmed Sayeed Mohmed Issaq (A-95), Shaikh Ibrahim Shaikh

Hussein (A-108) and Usman Man Khan Shaikh (A-115) except that

none of the above named accused had participated in the conspiratorial

meetings.

        Moreover, in spite of the fact that on 10.3.1993, the respondent

(A-94) was present in the conspiratorial meeting and accepted a sum of

Rs.5,000/- from Tiger Memon (AA), he did not participate in any overt

act on the fateful day i.e. 12.3.1993, when the Bombay Blast took place.




                                                                    153
                                                                Page 153
Therefore, no interference is required with the impugned judgment and

order, and enhancement of punishment is not warranted.


253.    We have considered the rival submissions made by learned

counsel for the parties and perused the record.


254.    Evidence against the respondent (A-94):


(a) Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
(b) Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)
(c) Confessional statement of Nasim Ashraf Sherali Barmare(A-49)
(d) Confessional statement of Parvez Mohmed Parvez Zulfikar Qureshi
     (A-100)
(e) Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)
(f) Confessional statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
(g) Confessional statement of Abdul Khan (A-36)
(h) Confessional statement of Firoz @ Akram Amani Malik (A-39)
(i) Confessional statement of Niyaz Mohamed (A-98)
(j) Deposition of Mohd. Usman Jan Khan (PW-2)
(k) Deposition of Jagdesh Lohalkar (PW.237)
(l) Deposition of Ramchandra (PW.231)

255.    Confessional Statement of Mohd. Rafiq Usman Shaikh (A-

94) -   He has disclosed that he was of 25 years of age and used to

wash cars and fill petrol. He lost his job 7-8 months prior to Bombay

Blast. On 16.2.1993, one Mohmed Jabir Abdul Latif Mansoor (A-93)


                                                                   154
                                                             Page 154
(now dead) told the respondent (A-94) that his ticket to Dubai had been

arranged for 17.2.1993 and he (A-94) went to Dubai by an Air India

flight on 17.2.1993. He was received at Dubai airport by a fair looking

man with a beard at Dubai airport. The respondent (A-94) stayed in a

hotel with five other persons who had gone there for the same purpose,

namely, Haji Yakub, Anwar, Bashir and Nasir Dhakla. Four more

persons had joined them there, and on the advice of Tiger Memon (AA)

they went to the airport on 20.2.1993 to go to Islamabad. They reached

Islamabad where they were received by a person who took them to a

hilly jungle area where tents had already been pitched. On the next day,

Javed Chikna told the respondent (A-94) to get ready for pistol and

machine gun training and advised him to learn all those weapons, as

atrocities had been committed on Muslims in Bombay. Respondent (A-

94) participated in the training and came back to Dubai from Islamabad

on 1.3.1993. He also took oath in the name of Quran in Dubai

alongwith other conspirators not to reveal any information about the

training etc. to anyone. Respondent (A-94) returned to Bombay on

3.3.1993. On 10.3.1993, respondent (A-94) had participated with other

conspirators in a conspiratorial meeting at Mubina's place at Bandra,

where targets were discussed and groups were assigned particular duties



                                                                    155
                                                                Page 155
and each participant was given a sum of Rs.5,000/- by Tiger Memon

(AA).


256.    The aforesaid confessional statement of the respondent (A-94)

was further corroborated by the confessional statement of Bashir

Ahmed Usman Gani Khairulla (A-13) to the extent that he revealed

the presence of respondent (A-94) in the conspiratorial meeting on

10.3.1993 at Bandra, and that Tiger Memon (AA) had given everybody

a sum of Rs.5,000/- in the meeting.


257.    Confessional statement of Nasim Ashraf Sherali Barmare

(A-49) - He has revealed the version given by respondent (A-94) to the

extent that he (A-94) had attended the training in Pakistan and

further he (A-94) attended the meeting at Bandra on 10.3.1993, and

each of the participants was given a sum of Rs.5,000/-.


258.    Confessional statement of Parvez Mohmed Parvez Zulfikar

Qureshi @Parvez Kelewala (A-100) ­ He has also disclosed the

similar facts as given by the respondent (A-94) in his confessional

statement to the extent that the respondent (A-94) attended the arms'

training in Pakistan.




                                                                  156
                                                              Page 156
259.     Confessional statement of Shahnawaz Abdul Kadar

Qureshi (A-29) - He has revealed that the respondent (A-94) had gone

to Pakistan for arms training via Dubai and attended the meeting in

Dubai. He had also taken on oath in the name of Quran that he would

not reveal any information about conspiracy to anyone and that he was

told in that meeting by Tiger Memon (AA) that his tickets were ready

for evening flight for Bombay.


260.     Confessional statement of Zakir Hussain Noor Mohd.

Shaikh (A-32) -      He has disclosed that respondent (A-94) had joined

other conspirators for training in Pakistan and took an oath in Dubai in

the name of Quran.


261.     The same version stood corroborated further by the confessions

of     Abdul Khan @Yakub Khan Akhtar Khan (A-36) , Firoz @

Akram Amani Malik (A-39) and Niyaz Mohmed @ Aslam Iqbal

Ahmed Shaikh (A-98).


262.     Mohd. Usman Jan Khan (PW.2) has deposed that he knew

the respondent (A-94) and he identified him in court. He has further

deposed that the respondent (A-94) had attended the arms' training in

Pakistan.


                                                                    157
                                                                Page 157
263.    Jagdish Shantaram (PW.237) and Ramchandra (PW.231)

have also proved the departure of respondent (A-94) from Bombay to

Dubai on 17.2.1993 and his arrival in Bombay on 3.3.1993 respectively.

264.    The Special Judge after appreciating the entire evidence came

to the following conclusion:

        "109. Now considering the matters stated in the
        confession of A-94 the similar phenomenon is found
        therein and hence detailed dilation regarding same is
        avoided. The same also alike the confession of A-64
        though reveals that A-94 had initially agreed to go to
        Dubai for the purposes of trip ultimately in a similar
        manner (but alongwith different person). He had reached
        the said training camp in which A-64 was acquiring
        training along with other persons. Similarly, the same
        also reveals of A-94 and his companion being cleared at
        Islamabad airport in the similar manner. As a difference
        the material on page of confession of A-94 reveals that in
        Pakistan A-94 had acquired the knowledge that he has to
        take training and at the said juncture absconding accused
        Javed Chikna had told him the purpose for which the
        said training of operating pistols and machine gun was to
        be taken. Now visualizing the situation then prevailing
        between India and Pakistan in the year 1992 and still A-
        94 having continued to take training and/or not making
        any protest about the same even later on also clearly
        reveals of himself having joined the band of said. Thus,
        considering all the material contained in confession of
        other accused and concerned evidence it is amply clear
        that the person with beard who had met A-77 and A-94
        at Dubai was none else but Tiger Memon.
                                xx xx xx xx
        111. Now considering further material in the confession
        of A-94 the same in terms reveals the promptness in
        which he has gone to Pakistan and acquired training at


                                                                     158
                                                                Page 158
the said place. On the said backdrop considering the
earlier recitals in the confession that he had gone for a
trip clearly appears to be not only inconsistent with other
matters stated in the confession but the same clearly
appears to have been belied by other material stated in
the said confession. Thus the said recitals will be liable
to be discarded. After discarding the said recitals and
considering in proper perspective other material the same
clearly reveals that A-94 having agreed for acquiring
training at Pakistan and for the said purpose he had
promptly gone and acquired the same.
                        xx xx xx xx
113. [...] The same being not directed against any
particular person the said fact clearly reveals that the
same cannot be said to be of any other purpose rather
than for commission of terrorist acts. The aforesaid fact
is also fortified by the further material contained in the
confession regarding the manner in which A-94 had
taken an oath and the matters then told by Tiger Memon.
114. Thus, considering all facets from confession of A-
94 about which few are discussed hereinabove, it can be
safely said that the same squarely establishes the guilt
of A-94 in commission of offence for which charges
are framed against him.
              xx           xx           xx
118. In the premises aforesaid i.e. in the light of
discussion made hereinabove, it can be safely said that
A-16, A-29, A-32, A-36, A-39, A-49, A-52, A-64, A-77,
A-92, A-94, A-95, A-98, A-100, A-108 and A-105 had
been to Pakistan via Dubai themselves and as agreed
had received training in handling of sophisticated
arms, ammunitions, explosives for commission of
terrorist acts and in said process A-77, A-92, A-95, A-
108 and A-115 had attended meeting themselves and/or
the remaining also had taken on oath of secrecy and were
involved in planning in commission of terrorist act after
returning to India and/or utilizing the training acquired
by them and thus having committed offence punishable
u/s 3(3) of TADA and so also offence of conspiracy all
the points under the discussion i.e. point Nos. 22, 23 and


                                                              159
                                                         Page 159
24, will be required to be answered in affirmative against
each of them."

TADA COURT ON SENTENCE of A-94

"519. Now considering the case of A-94 from them,
though same apparently appears to be different than the
remaining five due to himself having participated in the
meeting on 10th of March, 1993, the close look at the
evidence and particularly his confession does not reveal
himself having committed any further act or any
evidence denoting that he had acquired knowledge of
further activities to be committed in pursuance of
conspiracy to which other members in said meeting were
party and in future the said members having indulged in
commission of further acts furthering the objects of the
larger conspiracy to which other said members are found
to be guilty. Needless to add that though confession of
A-94 reveals that said meeting was attended by Tiger
Memon, PW-2, Javed Chikna, Bashir, A-32, A-38 and
14-15 others, the said material does not transcend further
other than showing that small groups were formed at said
meeting and the members of said group were discussing
the matters amongst themselves and Tiger Memon had
given Rs.5000/- to each of participant of the said
meeting. Curiously enough material fails to denote
commission of any further act by A-94 making him
liable for being a party to larger conspiracy in pursuance
of which further preparatory acts for commission of
Serial Bomb Blast was committed. Needless to add that
the material reveals that A-94 was enquired whether he
was knowing driving and he had replied in negative. The
material in the confession also reveals that on 14th of
March, 1993, A-16 had told A-94 that Tiger Memon had
caused the bomb explosions and has ran away etc. Thus,
careful consideration of said material though reveals that
case of A-94 is somewhat different still at the same time
the same fails to establish of the same being materially
different and/or being on higher pedestal than other 5
accused concerned with present discussion.


                                                             160
                                                        Page 160
                               xx            xx           xx
          526. Thus, considering acts committed by each of
          aforesaid 6 accused and out of them involvement of A-94
          being slightly more than others but having regard to the
          crucial fact that in spite of all of them at certain point of
          time having become party to conspiracy to commit
          terrorist act, in pursuance of same or otherwise having
          acquired the necessary training surreptitiously in a
          foreign country for commission of terrorist act and thus
          each of them having acquired/gained sufficient potential
          for commission of terrorist act but in fact none of them
          having committed such act and each of them having
          remained continuously in custody for a long period of 5-
          6 years after arrest uptil their release on bail and the
          same having reduced the potential acquired by each of
          them for commission of heinous crime and same in turn
          having resulted in protecting the society at large from
          such potential gain and even after release of said accused
          on bail, their conduct being not indicative of themselves
          having attempted to use potential gain by them for
          causing any danger to society at large and in fact the act
          committed by all of them having not resulted in causing
          any danger to society and other matters stated by them
          during their statement recorded upon quantum of
          sentence will deserve not giving any much harsher or
          the maximum punishment to them. The same would be
          necessary as the conduct of these accused after their
          release on bail in some what indicative of there being
          eradication of the element of criminality because of
          which they had committed the crime."


265.      This Court has laid down parameters for interference against

the order of acquittal time and again and the same have to be followed

herein.




                                                                          161
                                                                     Page 161
266.    In view of the fact that the respondent (A-94) had gone to

Pakistan and took training in handling the arms, ammunition and

explosives and also attended the conspiratorial meeting at Dubai and

took oath in the name of Quran not to divulge any information

regarding the conspiracy, it is abundantly clear that the respondent was

aware of the purpose of training in Pakistan and he undertook the

training there without any protest.


267.    We are of the view that the Special Judge committed an error in

not convicting the respondent for the larger conspiracy. Therefore, the

appeal is allowed and he is awarded life imprisonment. He 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.


                                        ............................J.

                                        (P. SATHASIVAM)



                                        .................................J.
 New Delhi,                                      (Dr. B.S.
 CHAUHAN)
 March 21, 2013


                                                                         162
                                                                    Page 162
Annexure `A'
S.  Criminal         Accused Name and            Sentence     Award by
No. Appeal           Number                      by           Supreme
                                                 Designated   Court
                                                 Court
1.    418 of 2011    Fazal Rehman Abdul          Acquitted    Dismissed
                     (A-76)

2.    409 of 2011    Manjoor Qureshi & Ors.      Acquitted    Dismissed
                     (A-88, A-109, A-114, A-
                     126, A-127(dead) and A-
                     130)

3.    601 of 2011    Krishna Sadanand Mokal      Acquitted    Dismissed
                     & Ors. (A-83, A-84 and
                     A-87)

4.    404 of 2011    Moiddin Abdul Kadar         Acquitted    Dismissed
                     Cheruvattam (A-48)

5.    405 of 2011    Asfaq Kasam Hawaldar        Acquitted    Dismissed
                     (A-38)

6.    394 of 2011    Ismail Abbas Patel (A-80)   Acquitted    Dismissed

7.    1033 of 2012   Rukhsana Mohd. Shafi        Acquitted    Dismissed
                     Zariwala (A-103)

8.    594 of 2011    Sayyed Ismail Sayyed Ali    Acquitted    Dismissed
                     Kadri (A-105)

9.    402 of 2011    Mohd. Ahmed Mansoor         Acquitted    Dismissed
                     (A-132)

10.   1022 of 2012   Rashid Umar Alwar           U/s 111 r/w Dismissed
                     (A-27)                      Sec. 135 of
                                                 Customs
                                                 Act ­


                                                                    163
                                                                 Page 163
                                          3 years RI
                                          with fine of
                                          Rs.25,000/-
                                          and
                                          acquitted
                                          of charge
                                          of
                                          conspiracy

11.   393 of 2011   Sharif Khan Abbas     U/s 111 r/w Dismissed
                    Adhikari (A-60)       Sec. 135 of
                                          Customs
                                          Act ­
                                          3 years RI
                                          with fine of
                                          Rs.25,000/-
                                          and
                                          acquitted
                                          of charge
                                          of
                                          conspiracy

12.   391 of 2011   Sharif Abdul Gafoor   U/s 3(3)       Allowed
                    Parkar @ Dadabhai     TADA 7         and
                    (A-17)                years RI       awarded
                                          with fine of   life
                                          Rs.50,000/-;   imprison-
                                          U/s 5          ment
                                          TADA 10
                                          years RI
                                          with fine of
                                          Rs.50,000/-;
                                          U/s 6
                                          TADA 14
                                          years RI
                                          with fine of
                                          Rs. 2 lakhs;
                                          and
                                          acquitted
                                          from

                                                                164
                                                            Page 164
                                              charge of
                                              conspiracy
13.   1027 of 2012   Manoj Kumar Bhanwarlal   U/s 3(3)       Allowed
                     Gupta (A-24)             TADA 7         and
                                              years RI       awarded
                                              with fine of   life
                                              Rs.50,000/-;   imprison-
                                              U/s 5          ment
                                              TADA 10
                                              years RI
                                              with fine of
                                              Rs. 1 lakh;
                                              U/s 6
                                              TADA 14
                                              years RI
                                              with fine of
                                              Rs.1 lakh;
                                              U/s 3(3)
                                              TADA and
                                              Sec.201 IPC
                                              5 years RI
                                              with fine of
                                              Rs.25,000/-;
                                              and
                                              acquitted
                                              from
                                              charge of
                                              conspiracy
14.   597 of 2011    Sarfaraj Dawood Phanse   U/s 3(3)       Dismissed
                     (A-55)                   TADA - 9
                                              years RI
                                              with fine of
                                              Rs.25,000/-;
                                              and
                                              acquitted
                                              from
                                              charge of
                                              conspiracy
15.   407 of 2011    Ayub Ibrahim Patel       U/s 3(3)       Dismissed
                     (A-72)                   TADA - 5

                                                                    165
                                                                Page 165
                                            years RI
                                            with fine of
                                            Rs.25,000/-;
                                            U/s 5
                                            TADA - 10
                                            years RI
                                            with fine of
                                            Rs.50,000/-
                                            ; U/s 6
                                            TADA - 10
                                            years RI
                                            with fine of
                                            Rs.50,000
                                            and
                                            acquitted
                                            from
                                            charge of
                                            conspiracy
16.   1025 of 2012 Mohd. Shahid             U/s 3(3)     Dismissed
                   Nizamuddin Qureshi       TADA - 10
                   (A-135)                  years RI
                                            with fine of
                                            Rs.25,000/-;
                                            and
                                            acquitted
                                            from
                                            charge of
                                            conspiracy
17.   599 of 2011   Shaikh Mohd. Ethesham   U/s 3(3)     Dismissed
                    (A-58)                  TADA - 10
                                            years RI
                                            with fine of
                                            Rs.25,000/-;
                                            and further
                                            U/s 3(3)
                                            TADA - 10
                                            years RI
                                            with fine of
                                            Rs.25,000/-
                                            and

                                                               166
                                                            Page 166
                                                 acquitted
                                                 from
                                                 charge of
                                                 conspiracy
18.   395 of 2011    Farooq Illiyas Motorwala    U/s 3(3)       Allowed
                     (A-75)                      13 years RI    and
                                                 with fine of   awarded
                                                 Rs.25,000/-;   life
                                                 U/s 3(3)       imprinso-
                                                 TADA 7         ment
                                                 years RI
                                                 with fine of
                                                 Rs.25,000/-
                                                 and
                                                 acquitted
                                                 from
                                                 charge of
                                                 conspiracy
19.   397 of 2011    Mohd. Rafiq Usman           U/s 3(3)       Allowed
                     Shaikh (A-94)               TADA 7         and
                                                 years RI       awarded
                                                 with fine of   life
                                                 Rs.15,000/-    imprison-
                                                 and            ment
                                                 acquitted
                                                 from
                                                 charge of
                                                 conspiracy


      We have dealt with 19 appeals filed by the State against the order of

acquittal on certain charges and particularly, the charge of conspiracy. Out

of the said 19 appeals, we have dismissed 15 appeals, however, allowed 4

appeals bearing Criminal Appeal No. 391/2011 (Sharif Abdul Gafoor

Parkar @ Dadabhai (A-17), Criminal Appeal No. 1027 of 2012 (Manoj



                                                                        167
                                                                    Page 167
Kumar Bhanwarlal Gupta (A-24), Criminal Appeal No. 395 of 2011

(Farooq Iliyas Motorwala (A-75) and Criminal Appeal No. 397 of 2011

(Mohd. Rafiq Usman Shaikh (A-94). The respondents in these appeals ae

awarded life imprisonment and they are 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 their

custody and send them to jail to serve out the sentence.




                                                                    168
                                                                Page 168
 
 
Home | About Us | Terms and Conditions | Contact Us
Copyright 2016 CAinINDIA All Right Reserved.
Designed and Developed by Binarysoft Technologies Pvt. Ltd.
Binarysoft Technologies - About Us

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