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APPEALS FILED BY THE ACCUSED

(PART – 3)

 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 555  OF 2012

Ibrahim Musa Chauhan @ Baba Chauhan      …Appellant

Versus

State of Maharashtra       … Respondent                      

WITH

Criminal Appeal No. 1129-1130 of 2007

WITH

Criminal Appeal No. 402 of 2008

WITH

Criminal Appeal No. 617-618 of 2008

WITH

Criminal Appeal No. 1631 of 2007

WITH

Criminal Appeal No. 1419 of 2007

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WITH

Criminal Appeal No. 1226 of 2007

WITH

Criminal Appeal No.  1422 of 2007

WITH

Criminal Appeal No. 1180 of 2007

WITH

Criminal Appeal No. 1225 of 2007

WITH

Criminal Appeal No. 919 of 2008

AND

Criminal Appeal No. 1393 of 2007

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CRIMINAL APPEAL NO. 555  OF 2012

Ibrahim Musa Chauhan @ Baba Chauhan      …Appellant

Versus

State of Maharashtra       … Respondent                      

J U D G M E N T

Dr. B.S. Chauhan, J:

1. This appeal  has been preferred against  the judgments and  

orders dated  29.11.2006 and 6.6.2007 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. 1/1993, by which the appellant  (A-41) has  

been convicted under Sections 3(3), 5 and 6 TADA, as well as under  

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

Act, 1959 (hereinafter referred to as the ‘Arms Act’), Section 4(b) of  

the Explosive Substances Act,  1908 (hereinafter referred to as the  

‘Act  1908),  and  Section  9-B(1)  (b)  of  the  Explosives  Act,  1884  

(hereinafter referred to as the ‘Act 1884’).  

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

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A. As  all  the  main  factual  and  legal  issues  involved  in  this  

appeal  have  already  been  discussed  by  us  and determined  in  the  

main connected appeal i.e. Yakub Abdul Razak Memon v. State of  

Maharashtra thr. CBI  (Criminal Appeal No.1728 of 2007), there is  

thus, no occasion for us to repeat the same.

B. The Bombay Blasts  occurred  on 12.3.1993,  in  which 257  

persons lost their lives and 713 were injured.  In addition thereto,  

there was loss of property worth several crores.  The Bombay police  

investigated the said matter at the initial stage, but subsequently the  

investigation  of  the  same was entrusted  to  the  Central  Bureau of  

Investigation (hereinafter referred to as the ‘CBI’), and then upon  

conclusion of  the  investigation,  a  chargesheet  was  filed against  a  

large  number  of  accused  persons.   Among  the  accused  persons  

against whom a chargesheet was filed, 40 accused could not be put  

to trial as they were absconding.  Thus, the Designated Court under  

TADA framed charges  against  138 accused  persons.   During the  

trial, 11 accused died and 2 accused turned hostile.  Furthermore, the  

Designated  Court  discharged  2  accused  during  trial,  and  the  

remaining persons, including the appellant (A-41) stood convicted.  

C.       A common charge of conspiracy was framed against all the  

coconspirators including the appellant. The relevant portion of the  

said charge is reproduced hereunder:  

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"During the period from December, 1992 to April, 1993 at  various  places  in  Bombay,  District  Raigad  and  District  Thane  in  India  and  outside  India  in  Dubai  (U.A.E.),  Pakistan,  entered into a criminal  conspiracy and/or were  members of the said criminal conspiracy whose object was  to commit terrorist acts in India and that you all agreed to  commit following illegal acts, namely, to commit terrorist  acts with an intent to overawe the Government as by law  established,  to  strike  terror  in  the  people,  to  alienate  sections of the people and to adversely affect the harmony  amongst different sections of the people, i.e. Hindus and  Muslims  by  using  bombs,  dynamites,  handgrenades  and  other  explosive  substances  like  RDX  or  inflammable  substances or fire-arms like AK-56 rifles, carbines, pistols  and other lethal weapons, in such a manner as to cause or  as  likely  to  cause  death  of  or  injuries  to  any person  or  persons, loss of or damage to and disruption of supplies of  services  essential  to  the  life  of  the  community,  and  to  achieve the objectives of the conspiracy, you all agreed to  smuggle fire-arms, ammunition, detonators, hand grenades  and high explosives like RDX into India and to distribute  the same amongst yourselves and your men of confidence  for the purpose of committing terrorist acts and for the said  purpose to conceal  and store all  these arms, ammunition  and explosives at such safe places and amongst yourselves  and with your men of confidence till its use for committing  terrorist  acts  and  achieving  the  objects  of  criminal  conspiracy and to dispose off the same as need arises. To  organize training camps in Pakistan and in India to import  and  undergo  weapons  training  in  handling  of  arms,  ammunitions and explosives to commit terrorist  acts.  To  harbour and conceal terrorists/coconspirators, and also to  aid, abet and knowingly facilitate the terrorist acts and/or  any act preparatory to the commission of terrorist acts and  to  render  any  assistance  financial  or  otherwise  for  accomplishing  the  object  of  the  conspiracy  to  commit  terrorist  acts,  to do and commit any other illegal acts as  were necessary  for  achieving the aforesaid objectives of  the  criminal  conspiracy  and  that  on  12.03.1993  were  successful in causing bomb explosions at Stock Exchange  Building, Air India Building, Hotel Sea Rock at Bandra,  Hotel Centaur at Juhu, Hotel Centaur at Santa Cruz, Zaveri  Bazaar,  Katha  Bazaar,  Century  Bazaar  at  Worli,  Petrol  

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Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in  lobbing handgrenades at Macchimar Hindu Colony.

Mahirn and at Bay-52, Sahar International Airport which  left more than 257 persons dead, 713 injured and property  worth  about  Rs.27  crores  destroyed,  and  attempted  to  cause  bomb  explosions  at  'Naigaum  Cross  Road  and  Dhanji Street, all in the city of Bombay and its suburbs i.e.  within Greater Bombay. And thereby committed offences  punishable under Section 3(3) 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 (1-A), (I-B)(a) of the Arms  Act 1959, Sections 9B (l)(a)(b)(c) of the Explosives Act,  1884,  Sections  3,  4(a)(b),  5  and  6  of  the  Explosive  Substances Act, 1908 and Section 4 of the Prevention of  Damage  to  Public  Property  Act,  1984  and  within  my  cognizance."  

D. Additionally,  he  has  been  charged  for  abetting  and  

facilitating acts that were preparatory in nature, for the terrorist acts,  

by acquiring and distributing AK-56 rifles in the city of Bombay and  

its suburbs, their magazines, ammunition and also hand grenades to  

co-accused Sanjay Dutt (A-117) and Salim Kurla (Juvenile) at the  

instance  of  Anis  Ibrahim  Kaskar,  an  Absconding  Accused  

(hereinafter  referred  to  as  ‘AA’),  brother  of  notorious  smuggler  

Dawood Ibrahim, and Abu Salim for committing the terrorist  acts  

punishable under Section 3(3) TADA.

E. The appellant  (A-41)  was also charged with,  being in  the  

unauthorised  possession  of  one  AK  56  rifle,  635  rounds  of  

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ammunition, 10 magazines of AK 56 rifle, and 25 hand grenades as  

the same were recovered in the notified area at his instance, and thus  

he has been charged under Section 5 TADA.

F. The appellant was further charged under Section 6 TADA,  

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

Section 4(b) of  the Act 1908 and  Section 9-B(1)(b) of  the Act  

1884, for unauthorisedly being in possession of the aforesaid arms  

with the intention to aid terrorist acts.  

G. The prosecution has examined a large number of witnesses  

and produced a large number of documents to prove its case, and  

upon  conclusion  of  the  trial,  the  Designated  Court  acquitted  the  

appellant  of  the umbrella  charge of  conspiracy i.e.  charge No.  1.  

However,  he  was  convicted  for  the  second  charge  i.e.  smaller  

conspiracy under Section 3(3) TADA and was awarded a sentence of  

8  years  RI  alongwith  a  fine  of  Rs.1,00,000/-,  and  in  default  of  

payment  of  fine,  to  suffer  further  RI  for  a  period of  three  years;  

under Section 5 TADA, he was sentenced to suffer RI for 10 years  

alongwith a fine of Rs.50,000/-, and in default of payment of fine, to  

suffer further RI for a period of one year; under Section 6 TADA, he  

was sentenced to suffer RI for 10 years and a fine of Rs.1,00,000/-,  

and in default of payment of fine, to suffer further RI for a period of  

3 years;  under Section 4(b) of the Act 1908, he was sentenced to  

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suffer  RI  for  four  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, under Section 9-B (1)(b) of the Act 1884, he was sentenced  

to  suffer  RI  for  one  year  alongwith  a  fine  of  Rs.  2,000/-  and in  

default of payment of fine, to suffer further RI for two months.   

All the sentences were directed to run concurrently.  However,  

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

Arms Act, the appellant was convicted, but no separate sentence was  

awarded.     

Hence, this appeal.

3. Shri Shree Prakash Sinha, learned counsel for the appellant  

has submitted that the confessional statement of the appellant as well  

as  those  of  the  co-accused  were  recorded by  the  police  forcibly,  

without meeting the requirements of Section 15 TADA and Rule 15  

of  the rules  framed thereunder.   Thus,  the same cannot  be relied  

upon.   The  recoveries  purported  to  have  been  made  were  also  

planted by the investigating agency and cannot be relied upon.  The  

Designated Court erred in convicting the appellant.  Thus, the appeal  

deserves to be allowed.

4. Shri Mukul Gupta, learned Senior counsel appearing for the  

respondent, has opposed the appeal contending that the confessional  

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statement of the appellant as well as those of the co-accused, were  

recorded in strict adherence to statutory requirements i.e. Section 15  

TADA and Rule 15 of the rules framed thereunder.  The appellant  

and co-accused have made their confessional statements voluntarily  

and the conviction of the appellant can be maintained on the sole  

basis  of  the  confessional  statement  of  the  appellant  himself.  

Moreover, a large number of co-accused have named him and have  

assigned  to  him  overt  acts.  The  recoveries  have  also  been  made  

strictly  in  accordance  with the requirements  of  Section  27 of  the  

Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence  

Act’) and there is no reason to disbelieve the same, as the same were  

made  at  the  instance  of  the  appellant  i.e.  on  the  basis  of  his  

disclosure statement made voluntarily.  Thus, the appeal lacks merit  

and is liable to be dismissed.

5. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.

6. Evidence against the appellant (A-41):

(a) Confessional statement of the appellant himself.

(b) Confessional statement of co-accused Samir Ahmed Hingora (A-53).

(c) Confessional statement of co-accused Sanjay Dutt (A-117).

(d) Confessional statement  of  Manzoor Ahmed Sayyed Ahmed (A-89).  

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(e) Deposition of Pandharinath Hanumanth Shinde (PW.218).

(f) Deposition of Laxman Loku Karkare (PW.45).

(g) Deposition of Hari Pawar (PW.596).

(h) Deposition of Prem Kishan Jain (PW.189).     

7. Confessional Statement of Baba Musa Chauhan (A-41):

His  confessional  statement  shows  that  he  was  well  

acquainted with the co-accused Salim who used to extort money, and  

was working for  Anis Ibrahim Kaskar  (AA), brother of  notorious  

smuggler and gangster Dawood Ibrahim.  Salim told the appellant  

(A-41) on 15.1.1993 to arrange a garage, with respect to which, the  

appellant (A-41) initially expressed his inability, but after receiving a  

phone call from Anis Ibrahim Kaskar  in the evening at about 7-7.30  

P.M., wherein Salim was asked to go to the Magnum Video Office,  

and meet Samir Ahmed Hingora (A-53). The appellant (A-41) went  

there alongwith Salim in a blue coloured Maruti 800 Car,  and with  

the help of Samir Ahmed Hingora (A-53) and his partner Haneef,  

they searched for an appropriate garage. At this time, Salim told the  

appellant (A-41) that he would keep 2-3 AK 56 rifles with him (A-

41) for about 2-3 days, and asked him to stay at home, so that he  

could bring the arms.  On the subsequent morning, Salim came to the  

house of the appellant (A-41). Abu Salim asked the appellant (A-41)  

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to drive a white coloured Maruti  Van which was parked near the  

Arsha Shopping Centre and to come near the Magnum office.  Salim  

drove ahead of him in a blue coloured Maruti, after handing over the  

keys of the van to the appellant  (A-41).  Appellant  (A-41)  reached  

close  to  the Magnum office in  the van.  Salim and Samir Ahmed  

Hingora (A-53) then sat in the van driven by the appellant  (A-41),  

and all those three persons reached the house of co-accused Sanjay  

Dutt  (A-117).   Sanjay  Dutt  (A-117)  embraced  Salim  and  Samir  

Ahmed Hingora (A-53).  Salim  introduced Sanjay Dutt (A-117) to  

the appellant (A-41).  Sanjay Dutt cleared the passage leading to the  

garage, shifting the vehicles parked therein to the other side.  The  

van which the appellant (A-41) had driven was taken to the garage in  

reverse gear.  Salim opened the cavity of the car which was under its  

back seats with the aid of a  ‘panna’, and from within, removed 9  

AK 56 rifles one by one, and then opened the inside lining of the  

front  door  of  the  car  and  removed  from there  80  hand  grenades  

without pins, then he removed 1500/2000 bullets from the back door.  

These bullets were packed in brown coloured paper, in packets of  

25-30 bullets, which were held together by rubber bands.  The hand  

grenades were also packed in brown coloured paper. There were 56  

magazines in the lining of the back door of the car.  Sanjay Dutt (A-

117) asked Salim why the hand grenades had been brought there, as  

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it might create a problem in case the same blew up.  Salim explained  

to Sanjay Dutt (A-117) that as the hand grenades did not have  pins  

nothing would  happen.   Salim made a  list  of  all  the  articles  and  

asked the appellant (A-41) to keep 3 rifles, 9 magazines, 450 bullets  

and  20  hand  grenades  in  Sanjay  Dutt’s  Fiat  car  (A-117)  .   The  

appellant  (A-41) kept the said arms and ammunition as directed by  

Salim in the dickey of Sanjay Dutt’s car (A-117), locked the dickey  

and put the key in his pocket.  Samir Ahmed Hingora (A-53) kept 20  

hand grenades in his car after packing the same into a bag and the  

appellant  (A-41) kept 3 rifles, 16 magazines, 25 hand grenades and  

750 bullets and came out with Samir Ahmed Hingora (A-53).   The  

appellant (A-41) left with the remaining arms and ammunition kept  

in a bag, which he laid under his bed.    

Next day, the appellant  (A-41) loaded all the bullets in the  

magazines of the rifles.  He could not contact Salim to take away the  

said arms as no one picked up Salim’s telephone.  Subsequently, the  

appellant (A-41) was told by Salim’s wife that Salim had gone out of  

India and that she would talk to him after 2-3 days. The appellant  

(A-41)  told her that Salim had kept some computer parts with him  

(A-41) and that the same were to be returned to him at the earliest.  

A-41 went to the house of Salim and told his wife that he wanted to  

return  the  said  goods  at  the  earliest.   On  the  same  night,  A-41  

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received a telephone call from Dubai from Salim informing him that  

he  was  coming  back  to  Bombay  within  1-2  days,  and  that  after  

coming back he would collect all the goods.  However, Salim did not  

return from Dubai. So the appellant (A-41) called up his brother-in-

law in Dubai and asked him to talk to Salim, and request him to  

collect his goods, who subsequently informed the appellant  (A-41)  

that Salim was likely to come to Bombay within a day or two and  

that he would contact him.  Immediately thereafter, riots took place  

in Bombay.  

On 16.1.1993 the appellant (A-41) received a telephone call  

from Salim, who asked him to talk to Anis Ibrahim Kaskar (AA).  

A-41 contacted Anis Ibrahim, who told the appellant (A-41) to give  

two guitars and six ‘tars’ (cord) to Salim Kurla and also, to give him  

some ‘Kadis’  and on being told that the ‘Kadis’ had already been  

attached to the broom (Jaadu), Anis Ibrahim asked the appellant to  

give only 6 ‘tars’.  The appellant  (A-41)  told Anis Ibrahim Kaskar  

that he did not know Salim Kurla. Then Anis Ibrahim Kaskar told  

him that Salim Kurla knew the appellant (A-41), and that he would  

come to the Andheri Post Office in the front of his house.  Thus, on  

his instructions, the appellant  (A-41) handed over two rifles and 6  

loaded magazines to Salim Kurla. Salim Kurla had told the appellant  

that  these  arms were to  be given to  some one in  Beharam Pada.  

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After 2-3 days, Salim returned to Bombay and came to the appellant  

(A-41) with his brother Kalam. The appellant (A-41) told him that he  

had  1  rifle,  25  hand  grenades,  the  remaining  bullets  and  10  

magazines  etc.   The  appellant  (A-41)  asked  Salim  to  take  these  

remaining articles  from him. However,  he promised to take them  

back in the evening, but then did not come for two days.  

During  this  period,  the  appellant  (A-41) learnt  from  the  

newspapers that Salim had been arrested by the police while trying  

to extort money from a Gujarati person.  Salim himself came to see  

the appellant  (A-41),  and told him  (A-41)  that Salim Kurla could  

disclose the name of the appellant (A-41) to the police, and hence, he  

advised  the  appellant  (A-41)  not  to  disclose  Salim’s  name.   The  

appellant  (A-41) became frightened, as he was in the possession of  

arms.  Thus,  he  immediately  shifted the  arms to  Iqbal  Tunda and  

informed Salim to keep the remaining goods with someone without  

disclosing his (A-41) name.  Salim came to see the appellant (A-41),  

and he had with him 30 loaded magazines which were wrapped in a  

plastic/polythene  bag and then kept  in  a  cloth  bag.  He left  these  

magazines with the appellant  (A-41)  and said that  he would send  

Ayub to collect  this ammunition from him. Accordingly, the next  

night at 9-9.30 p.m.  Ayub came with arms including one AK 56  

rifle.  He  kept  the  magazine  and  bag  in  one  place.  Though,  he  

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returned  a  part  of  the  arms  and  ammunition,  some  material  still  

remained with the appellant (A-41), which was kept in another place.  

He returned 30 loaded magazines to Salim and Ayub which they  

kept inside the dickey of their scooter and left.   

Salim Kurla was arrested after the Bombay blast and upon  

his disclosure, the appellant (A-41) was arrested on 28.3.1993. Later  

on, his father obtained the bag which he had kept with Iqbal Tunda  

through Hazi Ismail, and the same was produced before the police.  

He (A-41) further stated that he was not interested in using any arms  

or keeping the same with him, rather he had been forced to keep the  

same by the other co-accused, on the pretext that the weapons and  

ammunition would be collected from him within 2-3 days.  

The  appellant  (A-41)  made  a  retraction  statement  on  

21.12.1993.  

8. The Confessional Statement of Samir Ahmed Hingora (A-53):

He  made  a  confession  that  on  15.1.1993,  Anis  Ibrahim  

Kaskar  had  telephoned  him stating  that  the  appellant  (A-41)  and  

Salim would bring one vehicle loaded with weapons, and that he was  

to make arrangements for the off-loading and handing over of some  

weapons to Sanjay Dutt (A-117), and that thereafter, some weapons  

would be taken back by them for distribution to other persons.  Since  

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his  partner  Haneef  was  not  in  office,  he took them to his  house.  

Haneef  talked  to  Anis  Ibrahim  Kaskar  (AA)  in  Dubai  over  the  

telephone,  and  expressed  his  unwillingness  to  carry  out  his  

instructions.  However, upon the request of Salim, he (A-53) agreed  

to take him to Sanjay Dutt’s house while he was talking to Anis  

Ibrahim Kaskar over the telephone about the said weapons.  Sanjay  

Dutt hugged Salim and asked him to come the next day with the  

weapons.  

The next day, he (A-53) went to his office and met Salim  

and the appellant (A-41) and then reached the house of Sanjay Dutt  

(A-117).   Sanjay  Dutt  asked  his  driver  Mohd.  to  remove  all  the  

vehicles from the garage, and the appellant  (A-41) then  parked his  

Maruti van there and asked for a spanner and screw driver.  Sanjay  

Dutt (A-117) asked Mohd. to bring the tool kit from his car and give  

it to the appellant  (A-41).  Salim wrapped three AK 56 rifles and  

some magazines in a bed sheet as per the request of Sanjay Dutt  

(A-117),  and  Salim  also  gave  Sanjay  Dutt  20-25  hand  grenades  

which  were  put  in  a  black  coloured  bag  along  with  other  

ammunition.  

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9. Confessional statement of Sanjay Dutt (A-117):  

He admitted that one day in the month of January around 9-

9.30 p.m.,  Haneef and Samir Kurla had come to his house alongwith  

Salim.  He had met Salim once or twice earlier also. They told him  

(A-117) that they would be coming the next day with the weapons  

that  were to  be delivered to  him and then went  away.   The next  

morning, Samir, Haneef and Salim came to his house alongwith one  

other person, whom he did not know.  They had come in a Maruti  

Van and parked the same in the tin shed which was used by him for  

parking his own vehicles.  One person was sitting inside the Maruti  

Van. After about 15-20 minutes, he took out three rifles, and they  

told him that the same were AK-56 rifles.  He then brought some  

cloth from his house and gave it to them.   Salim and the person who  

had come with him, wrapped the rifles in the cloth, and thereafter,  

gave the same to him. He stated that he could identify, the person  

sitting in the car and also the hand grenades. He kept these rifles and  

the ammunition in the dickey of his Fiat Car No.MMU 4372.

10. Confessional statement of Manzoor Ahmed Sayyed Ahmed (A-89):   

He confessed that he had a blue coloured Maruti 800 bearing  

No.  M.P.23  B-9264.  On  22nd/23rd January,  1993,  in  the  evening,  

Salim contacted him over the telephone and called him to his office  

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at Santacruz.  After reaching there he took him (A-89),  to the office  

of the appellant (A-41) at Monaz Builders and Builders, S.V. Road,  

Andheri,  Opposite  the  Post  Office.  He  introduced  (A-89)  to  the  

appellant (A-41), and gave the key of his car to the appellant (A-41)  

and after  about half  an hour the appellant  (A-41)  came back and  

parked the said car outside the office, and gave the key to  Salim and  

told him that he had kept the bag of weapons in the car.  When Salim  

and  (A-89)  entered  the  car,   he  (A-41)  saw  that   a  black  bag  

containing weapons, was kept on the rear seat of the car.

11. Deposition of Pandharinath Hanumanth Shinde (PW.218) :  

He was the constable posted at the house of Sanjay Dutt (A-

117) for security. His statement was recorded in court on 6.11.1997,  

wherein he deposed about the visit of the appellant (A-41) alongwith  

Salim and others, to the house of Sanjay Dutt (A-117). He identified  

the appellant in a TI Parade held after 57 days, as well as in court.  

He  also  identified  the  two  persons  alongwith  Sanjay  Dutt.   He  

supported  the  prosecution’s  case  by  saying  that  Sanjay  Dutt  had  

instructed the witness to go to Gate no. 1 for duty, which he had  

followed.  The happenings at Gate No.2 would not be visible to him,  

while he was standing near the main Gate No.1.   It  was for  this  

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reason that he had been shifted to a place from where he could not  

possibly see what was happening.  

12. Deposition of     Laxman Loku Karkare (PW.45)   -  He was a  

panch witness in the recovery made on 1.4.1993. When he reached  

the police station and had agreed to become a panch witness, there  

were some constables and one more person, who had disclosed that  

his name was Ibrahim Musa Chauhan @ Baba Chauhan (A-41). He  

had given the  address of his residence. The appellant (A-41) had  

disclosed to the police  in his presence, that he had AK 56 rifles,  

magazines, grenades and cartridges which he  had been concealed,  

and that  he would show them the place of  concealment  and also  

produce the weapons. The panchanama was signed by this witness.  

They reached the place as was explained to them by the appellant  

(A-41)  by  police  jeep,  which  was  near  Andheri  Bus  Terminus.  

Subsequently, they found themselves in front of a chawl owned by  

the appellant (A-41).  Then the appellant took them to a lane which  

was  being  used  as  a  dumping  ground for  waste  material, and  

removed a bag from underneath a heap of waste. He removed an AK  

56 rifle, 635 cartridges and 25 hand grenades, and handed over the  

same  to  P.I.  Pawar  who  examined  all  the  articles.  The  seizure  

panchanama was prepared by P.I. Pawar.  

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In  his  cross-examination  he  deposed  that  he  did  not  

remember that there was a street light at a distance of 20 feet on the  

northern side of the open space used as a dustbin.  The space was  

full of waste material when he had gone alongwith the police party  

and the accused.  There were no left over eatables dumped at the  

place and it was thus, not smelling. P.I. Pawar alongwith the accused  

had entered the open space. The open space being used as a dustbin  

was 4 ft. x 4 ft. The accused brought a bag out to the lane from the  

dustbin. The bag was not in the hands of P.I. Pawar. The accused  

(A-41) had removed the bag from the dustbin in their presence. He  

was standing in the lane watching the accused removing  the bag  

from the dustbin.  

13. Deposition  of  Hari  Pawar  (PW.596) -  He is  the  Police  

officer  who  made  the  recovery  at  the  instance  of  the  appellant  

(A-41), in the presence of Panch witnesses.  He has corroborated the  

version of recovery as stated by PW.45.

14. Deposition  of  Prem  Kishan  Jain  (PW.189)-  He had  

recorded the confessional statement of the appellant.  He deposed  

that the appellant (A-41) had been brought from police custody and  

sent back to police custody. The witness explained that he was fully  

aware of the requirement of recording a confession and that he had  

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complied  with  all  the  said  requirements  while  recording  the  

confession of the appellant.   

15. In State of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC  

370 this court dealt with the issue of  recovery from the public place  

and held:

“21.  The  conduct  of  the  accused  has  some   relevance  in  the  analysis  of  the  whole   circumstances against him. PW 3 Santosh Singh,   a  member  of  the  Panchayat  hailing  from  the   same ward, said in his evidence that he reached   Jeet  Singh's house at 6.15 a.m. on hearing the   news of that tragedy and then accused Jeet Singh   told him that Sudarshana complained of pain in   the  liver  during  the  early  morning  hours.  But   when  the  accused  was  questioned  by  the  trial   court under Section 313 of the Code of Criminal   Procedure, he denied having said so to PW 3 and  further  said,  for  the  first  time,  that  he  and   Sudarshana did not sleep in the same room but   they slept in two different rooms. Such a conduct   on the part of the accused was taken into account   by  the  Sessions  Court  in  evaluating  the   incriminating circumstance spoken to by PW 10   that they were in the same room on the fateful   night.  We  too  give  accord  to  the  aforesaid   approach made by the trial court.”

16. Similarly,  in  State  of  Maharashtra  v.  Bharat  Fakira  

Dhiwar (2002) 1 SCC 622, this Court held:

“22. In  the present  case  the  grinding stone   was  found  in  tall  grass.  The  pants  and   underwear  were  buried.  They  were  out  of   visibility  of  others  in  normal  circumstances.   

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Until they were disinterred, at the instance of the   respondent,  their  hidden  state  had  remained   unhampered. The respondent alone knew where   they were until he disclosed it. Thus we see no   substance in this submission also.”

17. In view of the above, it cannot be accepted that a recovery  

made from an open space or a public place which was accessible to  

everyone,  should not  be taken into consideration for  any reason.  

The reasoning behind it, is that, it will be the accused alone who  

will  be having knowledge of the place,  where a thing is hidden.  

The other persons who had access to the place would not be aware  

of the fact that an accused, after the commission of an offence, had  

concealed contraband material beneath the earth, or in the garbage.

18. In  Durga Prasad Gupta v.  State of  Rajasthan  thr.  CBI  

(2003) 12 SCC 257, this Court explained the meaning of possession  

as:

“The word “possession” means the legal right   to  possession  (See  Heath  v.  Drown).  In  an   interesting  case  it  was  observed  that  where  a   person keeps his firearm in his mother's flat which   is safer than his own home, he must be considered   to be in possession of the same. (See  Sullivan v.   Earl of Caithness, (1976) 1 All ER 844.)

Once possession is established, the person who  claims that it was not a conscious possession has   to  establish  it,  because  how  he  came  to  be  in   possession is within his special knowledge.”

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19. In  Sanjay Dutt v. State thr. CBI, Bombay (II), (1994) 5  

SCC 410 this Court considered the statutory provisions of Section 5  

TADA and in this regard held:

“19. The  meaning  of  the  first  ingredient  of   ‘possession’ of any such arms etc. is not disputed.   Even though the word ‘possession’ is not preceded   by any adjective like ‘knowingly’, yet it is common   ground that in the context the word ‘possession’   must  mean  possession  with  the  requisite  mental   element,  that  is,  conscious  possession  and  not   mere custody without the awareness of the nature   of such possession. There is a mental element in   the  concept  of  possession.  Accordingly,  the   ingredient  of  ‘possession’  in  Section  5  of  the   TADA  Act  means  conscious  possession.  This  is   how the ingredient of possession in similar context   of a statutory offence importing strict liability on   account  of  mere  possession  of  an  unauthorised   substance has been understood.

xxxxxx 25. The significance of unauthorised possession   

of any such arms and ammunition etc. in a notified   area is that a statutory presumption arises that the   weapon was meant to be used for a terrorist  or   disruptive act. This is so, because of the proneness   of  the area to  terrorist  and disruptive  activities,   the lethal and hazardous nature of the weapon and   its  unauthorised  possession  with  this  awareness,   within a notified area. This statutory presumption   is the essence of the third ingredient of the offence   created  by  Section  5  of  the  TADA  Act.  The   question now is about the nature of this statutory   presumption.

xxxxxxx 27. There  is  no  controversy  about  the  facts   

necessary  to  constitute  the  first  two  ingredients.   For proving the non-existence of facts constituting   the  third  ingredient  of  the  offence,  the  accused   

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would  be  entitled  to  rebut  the  above  statutory   presumption  and  prove  that  his  unauthorised   possession of any such arms and ammunition etc.   was wholly unrelated to any terrorist or disruptive   activity  and  the  same  was  neither  used  nor   available  in  that  area  for  any  such  use  and  its   availability  in  a “notified area” was innocuous.   Whatever be the extent of burden on the accused to   prove the non-existence of the third ingredient, as   a matter of law he has such a right which flows   from  the  basic  right  of  the  accused  in  every   prosecution  to  prove  the  non-existence  of  a  fact   essential to constitute an ingredient of the offence   for which he is being tried. If the accused succeeds   in proving non-existence of the facts necessary to   constitute  the  third  ingredient  alone  after  his   unauthorised  possession  of  any  such  arms  and  ammunition etc. in a notified area is proved by the   prosecution,  then  he  cannot  be  convicted  under   Section 5 of the TADA Act and would be dealt with   and  punished  under  the  general  law.  It  is   obviously  to  meet  situations  of  this  kind  that   Section 12 was incorporated in the TADA Act.”

20. Therefore,  the  only  requirements  under  the  statutory  

provisions  are,  that  (1)  a  person  must  be  in  possession  of  some  

contraband  material;  (2)  the  person  must  have  knowledge  of  his  

possession i.e. conscious possession; (3) it should be in the notified  

area. Once possession is established, the burden is on the accused to  

show that he was not in conscious possession.  

21. After considering the entire evidence on record, the learned  

Designated Court came to the conclusion that the  appellant (A-41)  

was aware that the arms and ammunition which were handled by  

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him were to be used during riots against Hindus. The father of the  

appellant (A-41), had collected a bag of contraband kept with Iqbal  

Tunda through Haji Ismail, and handed over the same to the police.  

The Designated Court  held that the confessions of the co-accused  

established  the  role  played  by  the  appellant  (A-41)  in  supplying  

weapons to A-117.  The confession of A-117 does not reveal the  

name of the appellant (A-41), but the same is obvious as A-117 did  

not know the appellant prior to the said meeting. Thus, it is clear that  

the fourth person referred to in the confession of A-117 is none other  

than the appellant (A-41). The Court held that a consideration of the  

entire evidence leads to the inescapable conclusion that the appellant  

(A-41) was in unauthorised possession of AK-56 rifles, magazines,  

ammunition and hand granades, and that he had distributed a part of  

the material to A-117, kept the hand grenades with himself, and had  

handed over an AK-56 rifle to Salim Kurla (dead).  All the said acts  

were  committed  by him at  the  behest  of  Salim (AA) and Anees  

Ibrahim, and thus he has committed an offence punishable  under  

Sections 3(3) and 5 TADA. Being in the unauthorised possession of  

weapons  in  a  notified  area,  and  having  failed  to  rebut  the  

presumption i.e.  that  the same were being for  the purpose of  the  

commission  of  a  terrorist  act,  he  is  liable  to  be  convicted  under  

Section 5  TADA.

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However, considering that no nexus was established between  

the material possessed and distributed by the appellant (A-41), and  

the material smuggled into the country by the main conspirators, and  

there  being  absolutely  no  other  material  on  record  to  reveal  the  

nexus  between  the  appellant  (A-41)  and  any  other  co-accused  

involved in the said conspiracy, it was held that he could not  be held  

guilty for the  offence of conspiracy i.e. for the first charge. The acts  

committed by the appellant (A-41) do not reveal that the same were  

being  done  for  the   purpose  of  furthering   the  object  of   the  

conspiracy.

22. We have considered the entire evidence on record and come  

to the following conclusions:

i.  The  appellant  (A-41)  was  well  acquainted  with  Abu  

Salim (AA) who was working with Anis Ibrahim Kaskar  

(AA).

ii. The appellant (A-41) was asked to arrange a garage,  

and hence searched for  an appropriate  garage  with co-

accused Salim, Hingora (A-53) and his partner Haneef.

iii.  The appellant  was  introduced to  co-accused  Sanjay  

Dutt (A-117) at the residence of the latter.  

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iv.  The  appellant  witnessed  the  handing  over  of  

contraband to the co-accused (A-117).

v. The appellant was in conscious possession of certain  

contraband items.

vi.  The recovery of  the contraband material which was  

effected upon the making of a disclosure statement by the  

appellant, took place at a dumping ground for waste.

23. The Designated Court convicted the appellant (A-41) on the  

basis of  the evidence as has been hereinabove stated.  We find no  

cogent reason to interfere with the decision of the Designated Court.  

The appeal is hereby, accordingly dismissed.  

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CRIMINAL APPEAL NOS.1129-1130  OF 2007

Altaf Ali Sayed                  …Appellant

Versus

State of Maharashtra through CBI       … Respondent                      

24. These appeals have been preferred against the judgments and  

orders dated 24.11.2006 and 5.6.2007 passed by a Special Judge of  

the Designated Court under the TADA for Bombay Blast,  Greater  

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

has been convicted under Section 3(3) TADA and sentenced for 10  

years rigorous imprisonment and a fine of Rs.50,000/- and in default  

of payment of fine to further suffer rigorous imprisonment of one  

year.  He has further been convicted for the offence under Section 5  

TADA and sentenced to 10 years rigorous imprisonment with a fine  

of Rs.2,00,000/- and in default of payment of fine to suffer further  

rigorous imprisonment for 3-1/2 years.  

Both the sentences were directed to run concurrently.  

25. Facts and circumstances giving rise to these appeals are that:

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

(A-67) was charged for arranging 13 air tickets in order to facilitate  

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the traveling of the accused persons for training of handling arms,  

ammunition  and  explosives.   He  has  also  been  charged  for  

knowingly and intentionally storing 2 suit cases containing arms and  

ammunition,  thereby  committing  the  offence  punishable  under  

Section  3(3)  TADA.   The  appellant  was  further  charged  for  

possessing  arms  and  ammunition  in  the  notified  area  of  Greater  

Bombay  which  were  recovered  at  the  instance  of  Mohd.  Hanif  

Usman  Shaikh,  thereby  committing  the  offence  under  Section  5  

TADA.  And lastly, he was charged with an intent to aid terrorist  

acts thereby committing an offence under Section 6 TADA.    

B. After conclusion of the trial, the learned Designated Court  

under TADA convicted and sentenced the appellant as referred to  

hereinabove.

Hence, these appeals.   

26. Shri  Mukul  Rohtagi,  learned  senior  counsel  appearing  on  

behalf of the appellant, has submitted that the appellant had not been  

found guilty of first charge i.e. larger conspiracy and the allegations  

against him had been regarding keeping possession of handgrenades,  

detonators and storing the suitcases which had been recovered on his  

discovery statement. The recovery memo of the alleged articles had  

not been signed by the appellant and even the story of handing over  

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the two bags to the appellant is false for the reason that it has been  

alleged that Amzad Ali Aziz Meharbaksh had given four bags which  

were  returned  to  Yakub  Memon  (A-1)  as  Amzad  Ali  Aziz  

Meharbaksh had been discharged by this Court.  Thus, the evidence  

of Mohd. Hanit Usman Shaikh (PW.282) in this regard cannot be  

relied upon.  More so,  the prosecution could not  produce all  105  

handgrenades, alleged to have been recovered from the possession of  

the appellant as there had been shortage of 20 handgrenades. More  

so,  no explanation had been made by the prosecution as how the  

key-maker  was  present  on  the  scene  and  who  had  brought  him.  

More so,  the panch witness could not be relied upon because his  

brother is an employee in arms department in police and thus, he  

could not termed to be an independent witness. The alleged recovery  

of articles 42 and 43 had not properly been sealed, therefore, there  

was a possibility  of  tampering with the contents  of  the suitcases.  

Thus,  the  learned  Designated  Court  erred  in  convicting  and  

sentencing the appellant. Thus, the appeal deserves to be allowed.  

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

appearing on behalf of the State, has submitted that there is sufficient  

material  on  record  that  in  the  presence  of  Yakub  Memon (A-1),  

Amzad  Ali  Aziz  Meharbaksh  had  told  the  appellant  (A-67)  that  

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goods belonging to Yakub Memon (A-1) were to be shifted to some  

other place and, subsequently, Yakub Memon (A-1) asked appellant  

(A-67) as to whether the bags had been delivered to him by Amzad  

Ali Aziz Meharbaksh. The tickets for the co-accused were arranged  

by Yakub Memon (A-1) through the appellant by sending money  

and  passports  to  him  through  Rafiq  Madi  (A-46).  It  was  Yakub  

Memon (A-1) who sent  three bags to Rafiq Madi (A-46) through  

appellant (A-67).  Yakub Memon (A-1) had instructed on telephone  

to the appellant for sending the bags to Al-Husseini Building i.e.,  

residence of Yakub Memon (A-1) and his family.  The recovery has  

been made in accordance with law and there is sufficient material  

against  the  appellant  to  convict  him  for  the  aforesaid  offences,  

hence, no interference is required.  

28. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the records.  

29.         Evidence against the appellant:  

(a) Confessional statement of the appellant (A-67)

(b)      Confessional statement of Mohd.Rafiq Madi Biyariwala(A-46)

(c) Deposition of Mohd. Hanit Usman Shaikh (PW-282)

(d) Deposition of Prem Kishan Jain (PW-189)

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

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(f) Deposition of S.J. Satam, Panch witness (PW-37)

(g) Deposition of Waman Kulkarni (PW-662)   (h) Deposition of Woman Dotlkar (PW-420)

(i) Deposition of Asit Devji (PW-341)

(j) Deposition of Anil Prabhakar (PW-506)

(k) Memo Panch Ex. 108

(l) Discovery Panch. Ex. 109

30. Confessional statement of the appellant (A-67):      

His  confessional  statement  was  recorded on 16.4.1993 by  

Prem Kishan Jain (PW-189), D.C.P. Commandant SRP(F) Group-VI  

Dhule.  The appellant (A-67) deposed that he was a recruiting agent  

under  the  name of  Altaf  Enterprises.   He knew Amzad Ali  Aziz  

Meherbux (Discharged accused) and Yakub Memon (A-1).  Amzad  

sent 4 bags of Yakub to be kept with him as per their earlier meeting.  

He asked them as to what was in the bag and Amzad told him that it  

contained weapons etc.  He also booked tickets for 15-16 persons at  

the  instance  of  Yakub  for  which  passports  and  payments  were  

received through Rafiq Madi (A-46).  After 10-12 days, Rafiq (A-

46) sent him 3 bags of Yakub to be kept with him. When he asked,  

Rafiq  told  him  that  they  contained  bullets,  grenade  etc.   On  

10.3.1993 he returned 5 bags at Al-Husseini Building at instance of  

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Yakub  Memon.   He  kept  the  remaining  two  bags  containing  

weapons and explosives with Mohd. Hanif.  The said two bags were  

recovered by police on 26.3.1993 at his instance from Mohd. Hanif.  

31. Confessional statement of Mohd. Rafiq Madi Biyariwala (A-46):   

The said accused stated that on one occasion the appellant  

(A-67)  was  delivered  Rs.50,000/-  and  on  another  occasion  

Rs.62,000-63,000/- at the instance of Yakub Abdul Razak Memon  

(A-1).  On 14-15 February, he saw the appellant (A-67) taking away  

3  suit-cases  in  his  Maruti  Van  from  nearby  garage  below  the  

building of Tiger Memon (AA).

Thus,  it  came  in  evidence  through  the  confessional  

statements of  A-67 and A-46 that  four suitcases were kept in the  

jeep, which was parked in the residential premises of Amjad Abdul  

Aziz Meherbux (A-68), (discharged accused) by Abdul Gani Ismail  

Turk  (A-11)  and  Anwar  Theba (AA) at  the  instance  of   Yakub  

Abdul Razak Memon (A-1). Subsequently, the appellant (A-67) took  

away the four suit cases and kept them in his office, at the instance  

of  Yakub  Abdul  Razak  Memon  (A-1).  Later,  Rafiq  Madi  Musa  

Biyariwala (A-46) brought three more suit cases and kept them  at  

the office of  the appellant (A-67). Out of the total seven suit cases,  

appellant  (A-67)  delivered five suit  cases  to  Yakub Abdul  Razak  

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Memon (A-1) at Al Husseini building. Thus, two suit cases remained  

in his possession. It has further been disclosed by the appellant that  

due to the involvement of Yakub Abdul Razak Memon (A-1) in the  

case,  he kept  the said suit  cases at  the residence of  Mohd. Hanit  

Usman Shaikh (PW.282).  After the arrest of the appellant, he made  

a  disclosure  under  Section  27  of   Evidence  Act  (Exh.  108  dt.  

26.3.1993)  and  led  Anil  Prabhakar  (PW-506)  and  Suresh  Satam  

(PW-37) to the residence of Mohd. Hanit Usman Shaikh (PW-282)  

from where  the  following  articles  were  recovered  and taken  into  

possession vide Panchnama Ext. 109.  The suitcases contained arms  

and ammunition in large quantities.

32. Deposition of Mohd. Hanit Usman Shaikh (PW-282):

Mohammed Hanif Usman Shaikh (PW-282) in his statement  

disclosed that the appellant (A-67) had given him two suitcases in  

his  office  on 22.3.1993 at  9.00  P.M.  in  closed  condition  and the  

appellant (A-67) had asked the witness to keep the said two suitcases  

and also told that the suitcases were containing  Fax machines.  He  

has further revealed that after making the recovery of the suitcases  

from him the  police  got  them open  through  the  mechanic.   The  

handgrenades were taken out and chits were affixed on each of the  

handgrenade  recovered  from  the  bags.  But,  Mr.  Mukul  Rohtagi,  

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learned senior counsel for the appellant, has submitted that after the  

recovery of handgrenades, it was not possible to affix chits on each  

of the handgrenade within such a short time of 50-55 minutes even if  

20-30 police officials were involved in that activity. The bundles of  

wire were kept together and wrapped in a paper.  The said packet  

was tied by means of a string, and the seal of lac was put on the said  

packet.   65 handgrenades from the bigger suitcase were kept in the  

same  bag  alongwith  the  packet  of  the  bundles  of  wires,  and  40  

handgrenades from the small bag were also kept in the same suit  

case, and the same were tied and sealed.  He has further complained  

that during the course of his custody, his statement was recorded by  

the police under Section 6 but it was not read over and explained to  

him by the police either in Hindi, Urdu or in any other language. He  

was detained by the police in March 1993 for about 20-25 days and  

was not allowed to return to his house.  Moreover, he was tutored  

and was asked to involve the appellant (A-67) in this case.   The  

witness  had  been  attending  the  office  of  the  appellant  (A-67)  in  

connection with taking the persons abroad.  He has also revealed that  

the two suitcases recovered had been shown to him and he kept their  

description in mind.  Though, the said witness had not been turned  

hostile but, he was permitted to ask some questions in the nature of  

cross-examination  regarding  the  happening  at  the  Mahim  Police  

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Station in the month of February/March 1993.  On the basis of the  

above,  it  has  been  submitted  by  Mr.  Mukul  Rohtagi  that  the  

evidence given by Mohammed Hanif Usman Shaikh (PW-282) does  

not inspire confidence and cannot be relied upon.

33. Deposition of  Premkrishan Dayakrishan Jain (PW.189):

Premkrishan  Dayakrishan  Jain  (PW.189),  D.C.P.  

Commandant,  S.R.P.  (F)  Group-VI,  Dhule,  recorded  the  

confessional statement of appellant (A-67).  He deposed that when  

the confessional statement of the appellant (A-67) was recorded on  

16th and 18th of April, 1993, he was produced before the said witness  

by PSI Patil accompanied by a police party.  The witness asked the  

appellant his name and then as instructed by the witness, PSI Patil  

and police party left the chamber after removing handcuffs of the  

appellant (A-67) and being fully satisfied that his confession was  

voluntarily  recorded.  The  appellant  did  not  raise  any  complaint  

against  anybody  and  said  that  he  was  giving  his  confessional  

statement voluntarily without any pressure or fear or any inducement  

given by any person.  Thus, two things are clear that on 16/18.4.1993  

when  the  appellant  was  produced  for  recording  confessional  

statement, he came from the police custody on 16.4.1993 and, at that  

time, he was handcuffed, so the witness asked the police officials  

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who had produced him, to remove the handcuffs.  After recording  

the first part of his confession, he was sent to police custody and not  

in  judicial  custody  or  in  the  custody  of  any  other  independent  

agency.  While on 18.4.1993, he was again produced by the police,  

having the custody of the appellant handcuffed and it  was on the  

direction  of  the  witness,  the  handcuffs  were  removed  and  his  

statement was recorded.  

34. Deposition of K.L. Bishnoi (PW-193):

He has recorded the statement of the co-accused Rafiq Madi  

(A-46)  and  deposed  that  he  has  made  a  voluntary  confessional  

statement which was recorded strictly in accordance with law, and  

he has also pointed out the involvement of the appellant in the crime.

35. Deposition of S.J. Satam, Panch witness (PW-37):

He was the Panch witness  and he has deposed that  he had  

accompanied the police party alongwith co-accused Rafiq Madi (A-

46)  who  had  taken  them to  Gate  No.5,  Kashinath  Building,  and  

pointed out towards the appellant (A-67) who was arrested therein  

and arrest memo was prepared.

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36. Deposition of Waman Kulkarni (PW-662):

He has  deposed about  sending 9 sealed  packets  to  FSL on  

24.8.1993  vide  forwarding  letter,  Ext.2439  and  receiving  the  

chemical analysis report, Ext.2439A.

37. Deposition of Woman Dotlkar (PW-420):

He has  deposed  that  he  was  working  as  Assistant  Counter  

Supervisor  of  M/s   Hans  Air  Services,  and  has  further  deposed  

regarding booking of 4 tickets by the appellant (A-67) for 11.2.1993  

for Dubai and proved Ext.D-3, xerox copy of 3 tickets.   

    The relevant material by itself does not reveal that Yakub  

Memon (A-1) disclosed  the contents of said bags to the appellant.  

The further material in confession reveals that bags were given to  

him on the count of same being luggage of persons which were to be  

sent  to  abroad.   The  evidence  reveals  the  manner  in  which  the  

appellant had returned 4 bags out of bags given by Amjad Abdul  

Aziz Meherbux (A-68) and one bag out of bags brought by Rafiq  

Madi  Musa  Biyariwala  (A-46)  on  the  count  of  the  same  being  

luggage etc.  The material reveals that he was not able to return two  

bags on the count of same being heavy.  

38. The confession of the appellant (A-67) further reveals that he  

had asked Aziz Meherbux (A-68) about contents of bags given by  

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Yakub Abdul Razak Memon (A-1) and then A-68 had informed him  

that same were weapons etc. for purposes of taking revenge of losses  

suffered by Muslims during the riots.   

39. Since the appellant (A-67) being in possession of contraband  

material in an unauthorised manner within notified area and the said  

material being capable of attracting provisions of Section 5 TADA,  

it will make the appellant (A-67) liable for commission of offence  

under Section 5 TADA. However, considering the purpose for which  

the  appellant  (A-67)  had  taken  control  of   said  material,  i.e.  for  

hiding  the  same  with  his  friend,   it  cannot  be  said  that  he  had  

committed the said act for either aiding Yakub Abdul Razak Memon  

(A-1) or abetting any of the acts of Yakub Abdul Razak Memon (A-

1).  Thus, though the appellant (A-67) by committing such act had  

contravened  provisions  of  Arms  Act  and  Explosive  Act,  still  his  

intent behind committing said act being not for helping any terrorist,  

thus, he cannot be held guilty for commission of any offence under  

Section 6 TADA.  

40. The word ‘Possession’ has been explained under TADA by  

this Court in Durga Prasad Gupta  (supra).  

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41. In  Kalpnath Rai v. State (Thr. CBI), (1997) 8 SCC 732,  

this  Court  held  that  in  order  to  meet  the  essential  ingredients  of  

offence under Section 3 TADA mens rea must be proved, and it is  

for this reason that the companies and corporations etc. cannot be  

prosecuted for  the offence under the provisions of  TADA. It  was  

further held that the confession of an accused can be used against co-

accused only in the same manner and subject to the same condition  

as stipulated in Section 30 of the Evidence Act, i.e. the accused tried  

in the same case but for different offences.  

42. Shri  Mukul  Rohtagi,  learned senior  counsel  appearing for  

the  appellant  has  submitted  that  two panch witnesses  were there,  

whereas  one  has  been examined,  i.e.  Suresh  Satam (PW.37).  His  

evidence cannot be relied upon for the reason that he was the brother  

of a Police Constable and thus, cannot be termed as an independent  

witness.  Factually,  it  is  true that  the panch witness Suresh Satam  

(PW.37) himself has admitted that his brother was employee of the  

police department of Maharashtra.  Further, merely having such a  

relationship does not make him disqualified to be a panch witness,  

nor his evidence required to be ignored. In  Kalpnath Rai (supra),  

this Court has held that the evidence of police officials can be held to  

be worthy of acceptance even if no independent witness has been  

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examined.  In such a  fact-situation,  a  duty is  cast  on the court  to  

adopt  greater  care  while  scrutinising  the  evidence  of  the  police  

official. If the evidence of the police official is found acceptable it  

would  be  an  erroneous  proposition  that  the  court  must  reject  the  

prosecution version solely on the ground that no independent witness  

was examined. (See also: Paras Ram v. State of Haryana, (1992) 4  

SCC  662;  Pradeep  Narayan  Madgaonkar  &  Ors.  v.  State  of  

Maharashtra, (1995) 4 SCC 255; Sama Alana Abdulla v. State of  

Gujarat, (1996) 1 SCC 427;  Anil v. State of Maharashtra, (1996)  

2 SCC 589; Tahir v. State (Delhi), (1996) 3 SCC 338; and Balbir  

Singh v. State, (1996) 11 SCC 139).   

43.         It has been pointed out by Mr. Mukul Rohtagi, learned senior  

counsel  appearing for the appellant,  that the bags were recovered,  

though the key was not available and, therefore, it is not the case  

where the key of the suit cases had been given to the appellant (A-

67) and in such a fact-situation, the appellant may not be aware of  

the  contents  of  the  bags  as  he  had  not  seen  its  contents.   The  

locksmith was called and he made key and gave it  to the police.  

Subsequent to the opening of the bags, neither the key was kept in  

safe custody nor was it exhibited or preserved. The locksmith has not  

been examined. The recovery of bags itself becomes doubtful for the  

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reason that even if the statements of the panch witness Suresh Satam  

(PW.37) and Anil Prabhakar (PW.506) are taken into consideration,  

the recovery was made on 26.3.1993 at 10.00 p.m., though they had  

started at 5.00 p.m. from a nearby place.  Therefore, prosecution has  

not explained as under what circumstances the police party took five  

hours to travel such a short distance.

44.  The confession of the appellant (A-67) revealed that in the  

second week of February, he met Yakub Memon(A-1) in office of  

Amzad Ali Meharbax (A-68) and A-1 asked the appellant (A-67) to  

book tickets to Dubai for him. Thereafter, Amzad Ali Meharbaksh  

(A-68) gave the the appellant (A-67) four bags of Yakub (A-1) and  

after some time Rafiq Madi (A-46) came with money for the tickets.  

After 10-12 days Rafiq Madi (A-46) came with 3 bags of Yakub to  

be  kept  with  the  appellant  (A-67).  Upon  inquiry  from A-68,  the  

appellant  (A-67)  found  out,  that  the  bags  contained weapons  for  

taking revenge of the sufferings of  Muslims.  On 10th March, the  

appellant (A-67) had taken 5 bags and kept the same in the garage of  

A-1  at  Al-Husseini  Building.  After  bomb  blasts,  he  kept  the  

remaining two bags with Mohd. Hanit (PW-282) from where they  

were recovered at  his instance.  Confession of  Mohd. Rafiq Musa  

Biyariwala (A-46) revealed that on two occasions Yakub Memon  

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(A-1) had given Rs.  50,000/-  and Rs.  62000-63000/-  to A-46 for  

giving it to the appellant (A-67), and accordingly A-46 delivered the  

same to the appellant (A-67) and saw the appellant (A-67) driving  

away from Al- Husseini Building in red Maruti car with 3 suitcases.  

Further,  Asit  Devji  (PW-341)  and  Waman  Dotlkar  (PW-420)  

corroborated the incident of booking tickets by M/s Altaf Enterprises  

i.e. firm of the appellant (A-67). However, the Court  held that the  

said instance of booking tickets by the appellant (A-67) cannot lead  

to  the  conclusion  that  he  had  knowledge  of  purpose  for  which  

travellers were going abroad and thus, the appellant (A-67) was held  

not guilty of first limb of second charge under Section 3(3)  TADA.

The  recovery  of  two  suitcases  containing  handgrenades,  

detonators and wires was effected by Anil Mahabole (PW-506) in  

presence of Suresh (PW-37), panch witness, on 26.03.1993 from the  

house of Mohd. Hanif (PW 282) and the same was corroborated by  

PW-282.

The appellant (A-67) had been told by Amzad (A-68) that  

these  bags  contained  weapons  to  be  used  for  taking  revenge  for  

Muslims, but still continued to keep the same. The appellant (A-67)  

was in possession of bags after he shifted them to Hanif (PW 282) as  

he  assumed  full  control  of  said  bags  without  any  instruction  of  

Yakub (A-1).

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It is evident from the record hereinabove, that in the second  

week of February 1993, the appellant met Yakub Memon (A-1) in  

the office of  Amzad Abdul Aziz Meherbux (A-68) and A-1 asked  

the appellant to book tickets for Dubai for him.  Thereafter, A-68  

gave the appellant 4 packets to Yakub Memon (A-1) and after some  

time, Rafiq Madi (A-46) came with 3 packets of Yakub Memon (A-

1) to be kept with the appellant (A-67).  On being asked Amzad  

Abdul Aziz Meherbux (A-68) revealed that  the packets contained  

weapons which had been brought to be used for taking revenge of  

sufferings of Muslims.  The appellant (A-67) had taken 5 bags on  

10.3.1993 and kept the same in the garage of Yakub Memon (A-1)  

at  the  Al-Husseini  Building.   The  Bombay  blast  took  place  on  

12.3.1993,  and  it  was  after  that  the  appellant  has  kept  the  2  

remaining  bags  with  Md.  Hanit  Usman  Shaikh  (PW.282)  from  

where  they  had  been  recovered  by  the  police  on  a  voluntary  

disclosure of the appellant and at his instance.  The prosecution’s  

case stood corroborated by the confessional statement of Rafiq Madi  

(A-46),  who  had  also  disclosed  that  he  had  received  a  sum  of  

Rs.50,000/- and Rs.62,000/- respectively, from Yakub Memon (A-1)  

to be handed over to the appellant (A-67) and accordingly,  the said  

amount had been delivered to the appellant by him.  He had also  

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deposed that he had seen the appellant (A-67) taking away the 3 suit  

cases in red Maruti Car to Al-Husseini Building.

The other  evidences  of  Asit  Devji  (PW.341)  and  Waman  

Dotlkar (PW.420) have fully proved the booking of tickets by M/s.  

Altaf Enterprises i.e., the Firm of appellant (A-67).  Undoubtedly,  

the evidence on record in respect of booking does not lead to draw  

an inference, that while booking the tickets he had any knowledge of  

any conspiracy regarding the Bombay blasts and in view thereof, he  

had rightly been acquitted of  the charges  of  the first  limb of the  

second charge under Section 3(3) TADA.  However, the recovery of  

2 suit cases containing the arms and ammunition i.e., handgrenades,  

detonators and wires etc. was effected by Anil Mahabole (PW.506),  

on the disclosure of the appellant in the presence of Suresh Satam  

(PW.37) and on 26.3.1993 from the house of  Mohd. Hanit  (PW-

282).   The  recovery  of  2  suit  cases  containing  the  arms  and  

ammunition i.e., handgrenades, detonators and wires etc. stood fully  

proved by the conjoint reading of the depositions of Anil Mahabole  

(PW.506), Mohd. Hanit (PW.282) and Suresh Satam (PW.37).  

  45. We do not find any cogent reason to interfere with the order  

passed by the Designated Court.   The appeals lack merit  and are  

accordingly dismissed.

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CRIMINAL APPEAL NO. 402  OF 2008

Mohammed Sayeed Mohammed Isaaq      ..Appellant

Versus

State of Maharashtra        … Respondent                      

46. This  appeal  has  been  preferred  against  the  judgment  and  

order  dated  22.5.2007  passed  by  the  Special  Judge  of  the  

Designated Court under the TADA for the Bombay Blast, Greater  

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

has been found guilty and has been convicted under Section 3(3)  

TADA on two counts and has been awarded a punishment of 6  

years alongwith a fine of Rs.15,000/- on each count, and  in default  

of payment of fine to suffer further R.I. for 3 months. However, the  

punishments have been directed to run concurrently.  

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

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

with the execution of the aforesaid criminal conspiracy, as during  

the period between December 1992 to April 1993, he had abetted  

and facilitated various terrorist activities, and more particularly, he  

had gone to Pakistan to receive weapons training in the handling of  

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arms,  ammunition  and  explosives  for  the  commission  of  the  

terrorist activities, between the dates 22.1.1993 - 15.2.1993.  

B. He was further  charged for  having attended conspiratorial  

meetings  held  in  Dubai  and  Pakistan,  alongwith  the  other  co-

conspirators in order to plan the commission of terrorist acts.  

C. After conclusion of the trial, the learned Designated Court  

found the appellant (A-95) guilty under Section 3(3) TADA only  

and awarded the sentence and fine, as referred to hereinabove.

Hence, this appeal.

48. Ms.  Farhana  Shah,  learned  counsel  for  the  appellant,  has  

conceded to the fact that the appellant had in fact gone to Dubai,  

without  knowing  the  purpose  of  such  visit,  merely  upon  being  

asked by the other co-accused to do so, and that he came to know  

only once when he was in Dubai that he had to travel to Pakistan  

for  receiving training in  the  handling  of  arms  and ammunition.  

Even in Pakistan, he was unable to take training properly as he was  

suffering from various  ailments  due  to  which,  he  was even got  

abused  several  times.  Learned  counsel  has  admitted  appellant’s  

visit to Dubai, but has also submitted that even after returning to  

Bombay, he did not participate in any overt acts or conspiratorial  

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meetings.  Hence,  no  charge  could  be  proved  against  him  for  

attending any such meetings either in India, Dubai, or Pakistan.  

Therefore, it has been submitted by Ms. Farhana Shah, that  

appellant has been exploited by powerful criminals and smugglers,  

and that he had voluntarily gone to Dubai only in search of a job  

but,  from there he was forced to travel  to Pakistan for  training.  

However, owing to the fact that he could not receive training, after  

returning to India he did not attend any meeting. Thus, he cannot  

be convicted for  the offence punishable  under  the provisions of  

TADA.

49. On the other hand, Shri Mukul Gupta, learned senior counsel  

appearing  for  the  CBI,  has  vehemently  opposed  the  appeal  

contending  that  though  undoubtedly,  he  might  not  have  been  

involved in any overt act, his involvement in the aforesaid criminal  

conspiracy cannot be ruled out, hence, the provisions of Section  

3(3) TADA would automatically be attracted in light of the facts of  

the case.  Thus, the appeal lacks merit and is liable to be dismissed.  

50. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the records.  

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51. Evidence against the appellant (A-95) :

(a) Confessional statement of  Mohmed Sayeed Mohmed Issaq  (A-95)

(b) Confessional  statement  of  Hanif  Mohmed  Usman  Shaikh  (A-92)

(c) Confessional  statement  of  Shaikh Ibrahim Shaikh Hussein  (A-108)

(d) Confessional statement of Usman Man Khan Shaikh (A-115)  

(e) Deposition of Dilip Suryanashi (PW-225)

(f) Deposition of Amrutkumar Shah (PW-362)

(g) Deposition of Bhagat Singh (PW-382)

(h) Deposition of Achyut Bhalchandra Deshpande (PW-657)

(i) Deposition of Surendra Kumar Sonhd (PW-188)

52. Confessional Statement of   Mohd. Sayeed Mohmed Issaq (A-95):   

His  confession  was  recorded  by  Shri  Surendra  Kumar  

(PW-188), DCP Zone IV Bombay. He has stated that he was told  

by Yusuf to whom he was acquainted from 1.5 years, that Salim  

Kurla  (A-65,  since  dead)  was  making  a  movie,  and  that  if  he  

(A-95) wanted, he could be assigned the role of a stunt man in such  

movie.  When he contacted Salim (A-65),  he (A-95) was told to  

stay in touch with him as a need might arise for them to travel  

abroad. As certain  material had to be brought back from Dubai, he  

(A-95) at the behest of Salim Kurla (A-65), went there after being  

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assured by Kurla, that there would be no risk in doing the same.  

They were given there 200 Dirhams for expenses. It was only when  

they reached Dubai, that the appellant (A-95) found out that they  

had been  sent there for weapons’ training to take revenge upon the  

Hindu’s.  At  the  said  time,  the  appellant  was  suffering  from  

Tuberculosis,  and  therefore,  was  unable  to  keep  up  with  the  

training  being  provided  and,  hence,  he  along  with  four  others,  

refused to participate in the said training.  

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

His confessional statement was recorded by Sharda Prasad  

Yadav, DCP Zone II, Bombay on 28.6.1993 and 30.6.1993. In his  

confession,  he  stated  that  at  the  instance  of  Salim (A-65,  since  

dead),  he  went  to  Dubai  alongwith  the  appellant  (A-95),  Hanif  

Mohmed Usman Shaikh (A-92) and Usman Man Khan Shaikh (A-

115) and there they met Ahmed and Farooq, who were introduced  

to them by Salim and there they stayed in  Delhi  Darbar  Hotel.  

They were  given 200 Dirhams for  expenses.  Salim and Ahmed  

called all of them in a room and told that during December 1992  

and January 1993, a great injustice had been done to the Muslim  

community during Bombay communal riots, and in order to ensure  

that such injustice may not be repeated, they would be imparted  

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training to handle the arms, ammunition and for that purpose they  

should be ready to go to Pakistan the next day. All of them were  

scared, however, under pressure, they went to Pakistan. They were  

given Rs. 1000/- for expenses. They were imparted training how to  

handle the arms and ammunition in Pakistan and they came back to  

Bombay via Dubai.   

54. Confessional statement of Usman Man Khan Shaikh (A-115):

His confessional statement was recorded by Sharda Prasad  

Yadav, DCP Zone II, Bombay on 6.7.1993 and 8.7.1993. He had  

given  the  version  similar  to  that  of  Mohmed  Hanif  Mohmed  

Usman Shaikh (A-92), as he said that he became acquainted with  

Salim (A-65, since dead) and Salim took him to Dubai alongwith  

Mohd.  Sayeed  Mohmed  Issaq  (A-95),  Shaikh  Ibrahim  Shaikh  

Hussein (A-108) and Mohmed Hanif Mohmed Usman Shaikh (A-

92).  In  Dubai,  they were  taken to  Delhi  Darbar  Hotel.  Ahmed,  

Farooq and Salim told them to go to Pakistan for some work and  

Ahmed had given them 200 Dirhams for expenses. They were also  

told that in December 1992 and January 1993, there were atrocities  

on  Muslims  and  it  was  essential  to  learn  how  to  use  the  

sophisticated weapons by the Muslims to defend themselves if such  

riots occurred again.  He went to Pakistan alongwith Mohd. Sayeed  

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Mohmed Issaq  (A-95),  Shaikh Ibrahim Shaikh Hussein  (A-108)  

and others and learnt how to use the weapons and after completing  

the training, they came back to India via Dubai.  

55. Depositions of Dilip Suryanashi (PW-225) and Mohandas  

(PW-230) Immigration Officer at the Sahar International Airport,  

has proved that the appellant left Bombay on 22.1.1993 for Dubai,  

and he returned on 16.2.1993 from Dubai.  

56. After  the  incident  dated  12.3.1993,  the  appellant  left  

alongwith several other persons under a fictitious name, and stayed  

at Baroda at a hotel. This has been proved by Amrutkumar Shah  

(PW-362), the owner of the said hotel.  He has stated that as per  

the entry in the hotel register, Room No.204 had been taken by one  

Farooq Mohd. Shaikh on 22.5.1993, and that one Mohammed Bhai  

had also stayed with the said person.

57. Bhagat Singh (PW-382),  the receptionist  of the hotel has  

also proved the same stating that he had allotted Room No. 204 to  

Farooq Shaikh and Mohd. Shaikh.   

58. Mr.  Achyut Bhalchandra Deshpande (PW-657), police  

inspector,  deposed  that  he  had  written  a  letter  to  the  Deputy  

Commissioner of Police, Zone-III, Greater Bombay on 22.6.1993,  

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to record his confessional statement. He has admitted in his cross-

examination that he did not maintain any diary etc. wherein any  

such particulars have been recorded.  He has also admitted that the  

name of the accused and the date in the body of said letter, are not  

in his hand-writing.   

59. Surendra  Kumar  Sondh  (PW-188), DCP  Zone  IV  

Bombay,  recorded  the  confession  of  the  appellant  (A-95)  on  

13.7.1993 and 18.7.1993.  He has stated that he was aware of the  

provisions of Section 15 TADA.  He has also admitted that it was  

improper to continue the custody of the appellant (A-95) during the  

period  that  is  given  for  reconsideration,  with  the  same  police  

officer  who  had  produced  the  said  accused  before  him  on  

13.7.1993.

60. After appreciating the entire evidence on record, the learned  

Special Judge found, that the confession of the appellant  (A-95)  

clearly  revealed  that  he  had travelled  to  Dubai  at  the behest  of  

Salim Kurla (A-65), and that thereafter, he had gone to Islamabad,  

Pakistan  and  attended  a  training  camp,  where  he  had  acquired  

training  in  the  operation  of  arms  and  ammunition,  and  that  

thereafter,  he had returned to Bombay via Dubai.  The same has  

been corroborated by the confessions of the other co-accused.

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The Court has held that considering that the place of training  

was a foreign country; the fact that the nature of training acquired  

was to operate machine guns, AK-56 rifles, hand grenades, RDX,  

to  undertake  the  preparation  of  bombs,  and  to  operate  rocket  

launchers  etc.;  the meetings  attended after  the said  training;  the  

purpose  of  the  training  and  the  oath  of  secrecy  taken  by  the  

appellant (A-95); as well as all other relevant factors, it becomes  

abundantly clear that all the above activities were directed towards  

the commission of acts of violence against the people of Bombay,  

and since the same were not directed against any particular person,  

they could only be for the purpose of the commission of terrorist  

acts.  Hence,  the  appellant  (A-95)  had  been  trained  for  the  

commission of terrorist acts.

61. It is evident from the evidence on record and the findings  

recorded by the learned Designated Court, that the appellant (A-95)  

had  gone  to  Dubai  at  the  behest  of  Salim  Kurla  (A-65)  and,  

thereafter,  to  Islamabad  in  Pakistan  for  attending  the  training  

camps and acquired training in handling the arms and ammunition  

and thereafter, returned to India via Dubai.  There is evidence on  

record that the appellant (A-95) came to know only after reaching  

Dubai that he had to go with other four co-accused to Pakistan for  

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taking  training  as  they  had  to  take  a  revenge  for  suffering  of  

Muslims,  and he was under a coercion that  he alongwith others  

could be arrested by the police of Dubai and, therefore, he had to  

go to Pakistan for training.  Even after coming  back, there is no  

evidence  to  show that  the  appellant  (A-95)  had  committed  any  

offence  and  participated  in  any  other  act  on  the  fateful  day.  

Further, as the appellant had obtained training for the commission  

of the terrorist acts, he cannot be acquitted of the charges under  

Section 3(3) TADA.

The submissions made on behalf of the appellant that he has  

served  about  half  of  the  sentence  and  it  may  be  reduced  as  

undergone,  is  not  acceptable,  in  view  of  the  fact  that  it  is  

mandatory  requirement  under  Section  3(3)  TADA to  award the  

punishment to 5 years.   

62. We do not see any force in the appeal, it lacks merit and,  

accordingly, dismissed.

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CRIMINAL APPEAL NOs.617-618  OF 2008

Ayub Ibrahim Qureshi                           …Appellant

Versus

State of Maharashtra Thr. CBI (STF)         … Respondent                      

63. These appeals have been preferred against the judgment and  

order dated 18.9.2006 and 19.7.2007, passed by a Special Judge of  

the Designated Court under the TADA in the Bombay Blast Case  

No.1 of 1993 by which the appellant has been found guilty under  

Sections 3(3) and 5  TADA and Sections 3 and 7 read with Section  

25(1-A)  &  (1-B)  (a)  of  the  Arms  Act,  and  has  been  awarded  a  

punishment to undergo 5 years RI alongwith a fine of Rs.12,500/-,  

and in default of payment of fine, he was ordered to suffer further RI  

for  a  period of  3 months under Section 3(3),  alongwith a  similar  

punishment as was awarded under Section 5 TADA. For conviction  

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

Arms Act, no separate punishment has been awarded. However, all  

the sentences awarded were directed to run concurrently.   

Hence, these appeals.  

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

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

was charged for keeping one pistol and 52 rounds for four days in  

April 1993, which were unauthorisedly given to him by co-accused  

Nasim Ashraf Shaikh Ali Barmare (A-49) and the same is an offence  

under  Section 3(3) TADA.   

B. Thirdly,  he  was  charged  for  acquiring  one  pistol  and  52  

rounds during the aforesaid period from Ashraf Shaikh Ali Barmare  

(A-49)  and for  concealing the same within the Railway Terminal  

Compound, Yunus Manzil, Naupada and that thus, he had been in  

possession of the said arms and ammunition and has therefore, been  

charged under Section 5 TADA.   

C. Fourthly, he (A-123) has been charged for possession of the  

aforesaid arms and ammunition and thereby,  for  contravening the  

provisions of the Arms Act, and therefore, has committed an offence  

under Section 6 TADA.   

D. Fifthly,  he has been charged for the possession of the said  

arms, and thus, for violating the provisions of Sections 3 and 7, read  

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

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

appellant, has submitted that his possession of one revolver and 52  

cartridges  lasted  only a  period of  2-3 days.   The same had been  

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handed over to him by Ashraf Shaikh Ali Barmare (A-49), and were  

later recovered from an open public place, and not from the house of  

the appellant  (A-123).   The incident of the blast  had occurred on  

12.3.1993, and the said recovery was made on 8.4.1993,  and hence,  

the same cannot be connected with the Bombay blast.  The material  

so recovered was in view of the disclosure statement made by the  

appellant (A-123), and was never produced in court despite an order  

passed by the Designated Court to this effect. Subsequently, the said  

contraband were produced,  but no explanation was furnished by the  

prosecution for 20 cartridges that were missing.     

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

CBI,  has  vehemently  opposed  the  appeal  contending  that  his  

possession was conscious possession, and that the appellant (A-123)  

was fully aware of the contents of the bag which was handed over to  

him  by  Ashraf  Shaikh  Ali  Barmare  (A-49)  and  contained  one  

revolver and 52 cartridges and was also aware that it was illegal for  

him to be in possession of such arms and ammunition. The same is  

punishable under the provisions of TADA. Therefore, the appellant  

(A-123) has rightly been convicted on the basis of his possession and  

the present appeal is, therefore, liable to be dismissed.

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67 We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the records.  

68. Evidence against the appellant (A-123) :

(a) Confessional statement of Ashraf Shaikh Ali Barmare(A-49)

(b) Deposition of Chandrakant Vaidya (PW-40)

(c) Deposition of Ratansingh Kalu (PW-600)

(d) Deposition of Shri Vishnu Shinde (PW.615)

(e) Deposition of Waman Kulkarni (PW.662)

(f) Deposition of Krishanlal Bishnoi (PW-193)

In the instant case, there is no confessional statement of the  

appellant Ayub Ibrahim Qureshi (A-123).

69. Confessional statement of    Ashraf Shaikh Ali Barmare (A-49):   

Confessional statement of co-accused (A-49) was recorded  

by K.L. Bishnoi, DCP (PW-193) under Section 15 TADA, wherein  

the said accused revealed that in the first week of April, he had given  

one  pistol  and  52  rounds  to  the  appellant  (A-123)  and  that  the  

recovery of  the same was made by the police on 8.4.1993 at  the  

disclosure  statement  of  the  appellant  (A-123)  in  the  presence  of  

Panch witnesses.   

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70. Deposition of Chandrakant Vaidya (PW-40):

He was the Panch witness and has deposed that the appellant  

(A-123) took them to Railway Terminal Compound Yunus Manzil,  

Naupada,  and got the recovery of one pistol  and 52 rounds made  

after digging the earth there.  He also deposed about the Panchnama  

(Ex.127) prepared in this respect by Ratansingh Kalu (PW-600).   

71. Deposition of Ratansingh Kalu (PW-600):

He corroborated the evidence of  Chandrakant Vaidya (PW-

40)  that  the  appellant  (A-123)  took  the  police  party  to  Railway  

Terminal Compound Yunus Manzil, Naupada, and on his disclosure,  

the police recovered one pistol and 52 rounds and he prepared the  

Panchanama (Ex. 127).

72. Deposition of Shri Vishnu Shinde (PW.615):

He  just  proved  the  signature  of  PSI  Shri  Pharande  on  

(Ex.2177), forwarded letter to the Chemical Analyzer.    

73. Deposition of Waman Kulkarni (PW.662):  

He deposed that  Chemical  Analyzer report dated 7.6.1993  

(Ex.2177) was received by him on 30.6.1993.  

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74. Deposition of Krishanlal Bishnoi (PW-193):

PW-193,  a  police  officer  (DCP),  deposed  that  he  had  

recorded the confessional statement of Ashraf Shaikh Ali Barmare  

(A-49) which he made voluntarily and all the statutory provisions of  

TADA were strictly adhered to.   

75. After  considering  the  entire  evidence  on  record,  the  

Designated  Court  held  that  contraband  articles  which  had  been  

recovered from Ayub Ibrahim Qureshi (A-123), were received from  

Ashraf  Shaikh  Ali  Barmare  (A-49)  and  the  appellant  (A-123)  

concealed  the  same  by  digging  up  the  earth  in  close  vicinity  of  

railway station.   The appellant (A-123) has accepted the said articles  

from Ashraf Shaikh Ali Barmare (A-49), knowing the nature of the  

arms and  ammunition.   The appellant  (A-123)  did  not  make any  

attempt  to rebut the knowledge about the nature of  the arms and  

ammunition.   Therefore,  the  conclusion  has  been  drawn  that  the  

appellant  (A-123)  was  in  possession  of  the  contraband  material  

unauthorisedly within notified area of Bombay and, thus, committed  

the offence under Section 5 TADA.  Further, the appellant (A-123)  

committed  perpetratory  act  for  commission  of  terrorist  acts  and,  

hence,  was  held  guilty  under  Section  3(3)  TADA.   However,  

considering  the  quantum  of  rounds  and  pistol  possessed  by  the  

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appellant and the duration for which it was held, he was not found  

guilty under Section 6 TADA.

76. We  have  reappreciated  the  evidence  on  record  and  

considered the arguments advanced by Ms. Farhana Shah. We do not  

see  any  cogent  reason  to  take  a  view different  from that  of  the  

learned Designated Court.  The involvement of appellant (A-123) in  

the offences for which the charges have been found proved against  

him by the Designated Court, stood fully established.  Appellant had  

been given the contraband material  by A-49, and he (A-123) was  

fully  aware  of  the  nature  of  the  weapon  and  cartridges.    The  

relevant  Panchnama,  i.e.,  the  statement  in  the  memorandum  

Panchnama, the oral evidence of Chandrakant Vaidya, panch witness  

(PW-40)  and evidence  of  Ratansingh Kalu (PW-600)  connect  the  

appellant (A-123) in concealing the weapon and ammunition.

As the provisions of Sections 5 and 3(3) TADA provide for a  

minimum sentence of 5 years, this Court cannot award  a punishment  

lesser than what is prescribed under the statute.  We do not see any  

reason  to  interfere  with  the  impugned  judgment  and  order  and  

appeals lack merit and are, accordingly dismissed.  

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CRIMINAL APPEAL NO.1631  OF 2007

Mohd. Yunus Gulam  Rasool Botomiya …Appellant

                                                 Versus

State of Maharashtra             … Respondent                      

77. This  appeal  has  been  preferred  against  the  judgment  and  

order dated  30.5.2007 passed by a Special Judge of the Designated  

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

which the  appellant (A-47) was found guilty for offence punishable  

under Section 3(3) TADA and sentenced to suffer RI for 6 years and  

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

ordered to suffer further RI for a period of 6 months under Section 5  

TADA, and sentenced to suffer RI for 6 years and  ordered to pay a  

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

suffer further RI for a period of six months; and under Sections 3  

and  7  read  with  Section  25(1-A)  (1-B)(a)  of  Arms  Act,  but  no  

separate sentence awarded on said count.

All  the  sentences  awarded  to  the  appellant  (A-47)  were  

ordered to run concurrently.

Hence, this appeal.  

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

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

was further charged with keeping in possession one AK-56 rifle,  

980 cartridges and 132 magazines of AK-56 rifles between January  

and April, knowing that they were being smuggled into the country  

for committing terrorist acts, thereby committing an offence under  

Section 3(3) TADA.  

B. Further, he was charged with the unauthorised possession of  

firearms  in  the  notified  area  of  Greater  Bombay,  thereby  

committing the offence under Section 5 TADA.   

C. He was further charged with aiding and abetting terrorists  

under  Section  6  TADA and  under  Sections  3  and  7  read  with  

Section 25(1-A) and (1-B) (a) of the Arms Act.   

79. Mr. Mushtaq Ahmad, learned counsel for the appellant has  

submitted that the appellant is an auto-rickshaw driver and a simple  

recovery being made at the behest of the appellant cannot be enough  

to implicate him. It was further urged that the recovery was made  

from a public place and therefore, loses its significance. Timings and  

procedure  of  recovery  are  doubtful  as  signatures  of  the  appellant  

were  not  taken  on  the  panchnama.   Thus,  the  appeal  should  be  

allowed.

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80. Mr. Mukul Gupta, learned senior counsel for the State has  

vehemently opposed the appeal submitting that the recovery effected  

on the basis of the disclosure statement of the appellant has been  

corroborated by several  witnesses.  Thus, no fault could be found  

with the impugned judgment.  Therefore, the appeal is liable to be  

dismissed.

81. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.

82. The evidence against the appellant (A-47) is the recovery of  

weapons made at his instance. On  2.4.1993  at  the  instance  of  

appellant,  Eknath  Jadhav  (PW.606)  in  the  presence  of  Samir  

(PW.34)  Panch  Witness  prepared  the  memorandum  Panchnama  

Exh.93. In pursuance of the same, the accused led the Panchas and  

the  Police  to  the  terrace  of  Raziya  Manzil  near  Radhe  Shyam  

Theatre.  Samir (PW.34) in his examination-in-chief stated that bags  

contained one rifle and six swords, and the blue coloured rexine bag  

contained 980 cartridges and 32 rifle magazines which were taken  

out.

83. The police seized the said articles and seizure panchnama  

(Ext.94)  was  prepared  by  Jadhav  (PW.606)  upon  obtaining  the  

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signatures of the panch witnesses.  The said articles were sent to FSL  

for expert opinion and a positive FSL Report was received by the  

Police.

84. The recovery of  arms and ammunition from the appellant  

(A-47) in a notified area of Greater Bombay has been established by  

Ekanth Jadhav (PW.606)  and Samir  (PW.34).   The recovery was  

made at his instance vide Memorandum Panchnama (Ex.No.93) and  

Seizure Panchnama (Ex.No.94).  Since the recovery has been made  

in  a  notified  area  of  Greater  Bombay,  the  statutory  presumption  

arose that the arms were acquired by the appellant for the purpose of  

committing  terrorist  acts.   It  is  for  the  accused  to  discharge  the  

presumption.   

85. There is nothing on record to show that Samir (PW.34) and  

Jadhav (PW.606) would depose falsely against the appellant (A-47)  

as  they  had  faced  the  long  cross-examination  but  nothing  could  

surface to make their evidence unworthy of reliance for the matter  

deposed by them.    It was  stated by Jadhav (PW.606) in his cross  

examination  that he had not obtained the signatures of the accused  

on Ex.93, i.e. Panchnama.   The depositions made by Samir (PW.34)  

and Jadhav (PW.606) corroborated the evidence of each other and  

again  their  evidence  stand  corroborated  by  the  recovery  of  

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Panchnama.  Samir (PW.34) is an independent and natural witness  

and merely because he appeared for the prosecution, or he hails from  

the Worli  area,  it  cannot be presumed that  he had been deposing  

falsely  at  the  behest  of  the  police/prosecution.   The  information  

divulged by appellant  (A-47) i.e.,  the one recorded in Panchnama  

Ex.93  revealed  that  the  appellant  had  full  knowledge  regarding  

contraband material being at a place stated by him. The fact that it  

had  been  recovered  on  the  basis  of  disclosure  statement  of  the  

appellant (A-47) and he has led the police team to that place proves  

the recovery.  It stands further proved that the AK-56 rifle sent for  

FSL  was  an  assault  rifle  in  working  condition,  and  the  bullets  

recovered were live bullets.  The submission made at the behest of  

the appellant (A-47) that alleged recovery was from open place and  

therefore, was not worth credence and the evidence on record failed  

to establish consensus position by the appellant (A-47) of contraband  

material, does not hold any merit.  More so, merely producing the  

copy of the passport to show that appellant (A-47) was not resident  

of the Razia building does not show that the appellant (A-47) had no  

concern with the premises in Razia building.  The recovery has been  

made from the terrace of the premises in Razia buildings and the  

contraband  material  had  been  found  hidden  beneath  the  waste  

material placed therein.  There cannot be any dispute regarding the  

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timings,  as  the  first  Panchnama  has  been  prepared  early  in  the  

morning at 5 a.m. and then recovery was made later from the place  

pointed out by the appellant (A-47) himself.  Therefore, there cannot  

be  any  fault  with  the  timings  etc.  for  the  reason  that  the  first  

Panchnama was prepared at 5 to 5.30 a.m. and the second one was at  

about 7.00 a.m. to 7.30 a.m. as disclosed by Jadhav (PW.606) in his  

cross-examination.  Thus, it shows that there was recovery of one  

AK-56  rifle,  980  cartridges  of  AK-56  rifle,  32  magazines  of  the  

same.  Entries of the same had been made in the Panchnama giving  

full details, as to how those articles were found wrapped in gunny  

bags, rexene  etc. and how they were subsequently wrapped after the  

recovery.  Samir  (PW.34),  the  panch  witness  who  identified  the  

recovered articles in the court,  pointing out that the said contraband  

had been recovered at the behest of the appellant (A-47).  Letter ‘B’  

had been written on the butt of the AK-56 rifle which was also found  

on the said rifle when examined in the court.   

In his statement under Section 313 Cr.P.C. before the court,  

the  appellant  (A-47)  denied  all  the  allegations  made  by  the  

prosecution  and stated that he had been falsely roped in.  Further,  

he had not made any disclosure statement nor any recovery had been  

made at his behest.   The Police was searching one Botomiya and  

arrested the appellant (A-47) though his name is Bhoronliya.   

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86. The Designated Court after considering the entire evidence  

on record came to the conclusion that evidence of Samir (PW.34)  

and Jadhav (PW.606) can be relied upon.  The contraband material  

had  been  recovered  from  Razia  buildings  at  the  behest  of  the  

appellant (A-47) and the recovery was rightly made and Panchnama  

in this regard was worth reliance.  There is neither rule of law nor  

legal precedent that the signatures of the accused (A-47) is required  

to be obtained upon the Memorandum Panchnama or the Discovery  

Panchnama.  There is no force in this submission made at the behest  

of the appellant (A-47). Though, the contraband articles had been  

recovered from open space but the articles had been concealed under  

the waste material,  so it  loses the significance of being recovered  

from the open space on the terrace.  The recovery stood established  

by cogent evidence.   

87. The  submission  made  by  Mr.  Mushtaq  Ahmad,  learned  

counsel appearing on behalf of the appellant that the recovery was  

made from a public place and therefore, could not be relied upon  

and  cannot  be  accepted,  as  it  is  the  accused  alone  on  whose  

disclosure statement the recovery was made and it is he alone, who  

is aware of the place he has hidden the same. It cannot be presumed  

that the other persons having access to the place would be aware  

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that some accused after the commission of an offence has concealed  

the contraband material beneath the earth or in the garbage.  

88. In  State of Himachal Pradesh v. Jeet Singh  (supra), this  

Court held:  

“  There  is  nothing  in  Section  27  of  the   Evidence Act which renders the statement of the   accused inadmissible if recovery of the articles   was made from any place which is  “open or   accessible to others”. It is a fallacious notion   that when recovery of any incriminating article   was  made  from  a  place  which  is  open  or   accessible  to  others,  it  would  vitiate  the   evidence under Section 27 of the Evidence Act.   Any object  can be concealed  in  places which   are open or accessible to others”.

89.       Similarly, in Gurjinder Singh v. State of Punjab, AIR 2011  

SC 972, this Court held that if a weapon was hidden by digging the  

earth and could be recovered only be removing the earth, it is not  

desirable  to  entertain  the  argument  that  recovery  had  been  made  

from  a  public  place  which  could  have  been  easily  accessible  to  

anyone.  The Court further held:  

“……In our  opinion,  such  trivial  mistakes   should not give any benefit of doubt or any sort   of benefit to the accused. In fact, the recovery   was  made  in  the  presence  of  Ajaib  Singh,   Assistant Sub-Inspector and Balbir Singh, Head   Constable. It is also not correct that the memo   of recovery was not produced before the Court.

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Exhibit P-46, which reveals the fact about   the statement made by the accused in relation   to pistol incorporates the entire statement made   by the accused.  Therefore,  the said document   itself  incorporates  the  statement  made  by  the   accused.  Moreover,  simply  because  the   recovery  was  made  in  the  presence  of   policemen  would  not  adversely  affect  the   prosecution case…….”

90.        In State Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1  

SCC 652, this Court held:  

“In this context we may point out that there   is no requirement either under Section 27 of the   Evidence Act or under Section 161 of the Code   of Criminal Procedure,  to obtain signature of   independent witnesses on the record in which   statement  of  an accused is  written.  The  legal   obligation to call independent and respectable   inhabitants of the locality to attend and witness   the exercise made by the police is cast on the   police  officer  when  searches  are  made  under   Chapter VII of the Code.  

    Hence it is a fallacious impression that   when  recovery  is  effected  pursuant  to  any   statement  made by  the  accused  the  document   prepared  by  the  investigating  officer   contemporaneous  with  such  recovery  must   necessarily  be  attested  by  the  independent   witnesses.…..The  court  has  to  consider  the   evidence  of  the  investigating  officer  who   deposed  to  the  fact  of  recovery  based on the   statement elicited from the accused on its own   worth.

We feel  that  it  is  an  archaic  notion  that   actions  of  the  police  officer  should  be   approached with initial distrust. We are aware   that  such  a  notion  was  lavishly  entertained   during  the  British  period  and policemen  also   

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knew  about  it.  Its  hangover  persisted  during   post-independent  years  but  it  is  time  now  to   start placing at least initial trust on the actions   and the documents made by the police. At any   rate,  the  court  cannot  start  with  the   presumption  that  the  police  records  are   untrustworthy.  As  a  proposition  of  law  the   presumption should be the other way around.   That  official  acts  of  the  police  have  been   regularly  performed  is  a  wise  principle  of   presumption  and  recognised  even  by  the   legislature.  Hence when a police officer gives   evidence  in  court  that  a  certain  article  was   recovered  by  him  on  the  strength  of  the   statement made by the accused it is open to the   court to believe the version to be correct if it is   not otherwise shown to be unreliable. It is for   the  accused,  through  cross-examination  of   witnesses  or  through  any  other  materials,  to   show that the evidence of the police officer is   either unreliable or at least unsafe to be acted   upon in a particular case. If the court has any   good reason to suspect the truthfulness of such   records of the police the court could certainly   take  into  account  the  fact  that  no  other   independent person was present at the time of   recovery.  But  it  is  not  a  legally  approvable   procedure  to  presume  the  police  action  as   unreliable  to  start  with,  nor  to  jettison  such   action merely for the reason that police did not   collect signatures of independent persons in the   documents  made  contemporaneous  with  such   actions.”

91. In view of the above,  merely because the contraband was  

recovered from a public place, i.e. a place accessible to the public at  

large, the same does not mean that the recovery is to be discarded.  

In  case,  the  articles  had  been  hidden  by  digging  up  the  earth,  

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covering the same up with garbage or other material, the public may  

not  have  taken  note  of  it.   The  same  remained  in  the  specific  

knowledge of the accused, i.e. where and also the manner in which  

the said articles were hidden.

Moreover,  the  recovery  cannot  be  discarded  for  want  of  

signature of the accused on the recovery memo.

92. In view of above, none of the arguments advanced on behalf  

of the appellant is tenable.  We do not see any force in the appeal.  It  

lacks merit and is, accordingly, dismissed.

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CRIMINAL APPEAL NO. 1419 OF 2007

Mohamed Dawood Mohamed Yusuf Khan        …Appellant

Versus

State of Maharashtra                                      … Respondent                      

93. This  appeal  has  been  preferred  against  the  judgment  and  

order  dated  30.5.2007,   passed  by  a  Special  Judge  of  the  

Designated  Court  under  the  TADA for  the  Bombay  Blast  Case  

No.1/93,  Greater  Bombay,  by  which  the  appellant  has  been  

convicted under Section 3(3) TADA  and has been sentenced to  

suffer RI for six years, alongwith a fine of Rs. 25,000/-,  and in  

default of payment of fine to further undergo six months RI; and  

under Section 5 TADA,  the same sentence has been awarded. He  

has further been convicted under the Arms Act,  but  no separate  

sentence has been awarded for the same. Both the sentences have  

been ordered to run concurrently.

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

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

(A-91),  in  pursuance  of  criminal  conspiracy  during  the  period  

between January 1993 and April 1993, had agreed to keep in his  

possession, 3 AK-56 rifles, and 9 empty magazines, which were a  

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part of the smuggled consignment, at the instance of accused Eijaz  

(A-137-dead)  in  an  unauthorised  manner  and  thereby,  has  

committed an offence punishable under Section 3(3) TADA; and  

that he had acquired 3 AK-56 rifles and 9 empty magazines and  

had kept  them in the notified area under Section 2 TADA, and  

thus, he has been charged under Section 5 TADA.   

B. Further, for possessing the said arms, the appellant has also  

been  charged under Section 6 TADA, and under the provisions of  

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

Act.   

C. The appellant has been acquitted of the first charge, but has  

been convicted under Section 3(3) and Section 5 TADA, and also  

under the Arms Act, as has been mentioned above.  

         Hence, this appeal.

95. Shri  Mushtaq  Ahmad,  learned  counsel  appearing  for  the  

appellant, has submitted that the conviction of the appellant under  

the provisions of Sections 3(3) and 5 TADA is not sustainable, as  

the confessional statement of the appellant, as well as those of the  

co-accused,  are  inadmissible  in  view  of  the  same  not  being  

voluntary, and having been made under coercion while in police  

custody. The confessional  statement had also been retracted just  

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after the filing of the charge sheet. It has further been submitted  

that  the panch witnesses  could not  be relied upon as they were  

stock witnesses. Therefore, the conviction is liable to be set aside,  

and the appeal deserves to be allowed.

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

State  has  vehemently  opposed  the  appeal,  submitting  that  the  

confession  of  the  appellant  as  well  as  those  of  the  co-accused,  

which  have  been  relied  upon,  were  made  voluntarily.  He  has  

further submitted that the retraction is not worth consideration, and  

that  the  panch  witnesses  were  not  stock  witnesses,  and  that  

therefore, their testimony deserves to be allowed. Thus, the appeal  

lacks merit and is liable to be dismissed.

97.    We  have  considered  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

98. Evidence against the appellant (A-91):

(a) Confessional statement of the appellant (A-91)

(b) Confessional statement of Eijaz Pathan (A-137)

(c) Deposition of Moiddin Kabir (PW-58)

(d) Deposition of Ashok Kumar Harivillas Pandey (PW-59)

(e) Deposition of Hirasingh K. Thapa (PW-278)

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(f) Deposition of Vijjay Dagdu Kadam (PW-344)

(g) Deposition of Suresh Ganpath Narathe (PW-522)

99. Confessional statement of  the appellant (A-91) :

The  appellant  (A-91),  in  his  confessional  statement  dated  

29.4.1993 has stated that he had been acquainted with Munna (A-

24) and Eijaz Pathan (A-137 – now dead).  Seven-eight days before  

Ramzan, at the instance of Eijaz Pathan (A-137), the appellant (A-

91)  had  gone  to  the  office  of  M.K.  Builders.   From  there,  he  

alongwith Munna and Eijaz had travelled in a Maruti car in which  

one bag had also been placed.  Eijaz had told the appellant (A-91)  

that the bag contained 3 stun-guns, and that the appellant (A-91)  

had to keep the same concealed in his house.  The appellant (A-91)  

had taken the said bag,  containing the 3 stun-guns and 9 empty  

magazines, to his house and kept the same in a Godrej almirah.  He  

had falsely informed  his family members that the bag contained  

some cutlery items that belonged to his employer, and had directed  

that none of them must open it.  After eight-ten days, the appellant  

(A-91) had shifted the stun-guns from one bag to another and had  

kept  the  same  in  his  mother-in-law’s  house,  and  had   told  her  

falsely that  the bag contained certain items that  belonged to his  

friend, and that  she must not open the same. It had been at his  

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instance, that the police had made recoveries of the said arms from  

the house of his mother-in-law.   

The above version of events has been corroborated by Eijaz  

Pathan (A-137-dead) in his confession recorded on 21st and 22nd  

February 2003 by Pramod Mudbhachal,  Dy.SP, CBI,  STF in all  

material respects.

A-91 retracted  the confessional  statement  dated  29.4.1993  

on 23.12.1993.

100. Suresh Narathe (PW-522),  a Sub-Inspector of Police had  

prepared the  disclosure  Panchnama Ext.  265 in  the  presence  of  

Ashok  Kumar  Harivillas  Pandey  (PW-59),  panch  witness,  on  

9.4.1993,  and in  pursuance of  the said disclosure Panchnama,  3  

AK-56  rifles  and  9  empty  black  coloured  magazines  had  been  

recovered vide seizure Panchnama Ext. 281.  The seized articles  

had been sent to FSL for opinion, vide Ext. 1805  and a positive  

FSL Report (Ext.1806) had thereafter, been received.   

101. Viijay  Dagdu  Kadam  (PW-344) –  a  Sub-Inspector  of  

Police,  who had arrested A-91 has stated that  on 28.4.1993, the  

appellant  (A-91)  had  expressed  his  willingness  to  make  a  

confession voluntarily, and thus, he had written a letter on the very  

same day to Shri Lokhande, DCP, for the purpose of recording his  

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confession. He has proved the letter marked as Ext. X-211, and the  

contents of the said letter have been found to be true and correct,  

and the same also bear his signature. He had sent the recovered  

materials for FSL for examination, vide letter dated 20.4.1993 (Ext.  

1805). He has further deposed that on 10.5.1993, he had received  

an FSL report regarding the articles that had been sent by him, and  

has stated that the said report was positive.    

102. Hirasingh  K.  Thapa  (PW-278), watchman  of  the  

Navjeevan  Society  where  the  appellant  (A-91)  resided,  has  

corroborated  the  confession  of  (A-91)  in  respect  of  the  visit  of  

Munna (A-24) and Eijaz Pathan  (A-137) to the said society on the  

day that the said weapons had been given to the appellant (A-91).  

Hirasingh K. Thapa (PW.278) has identified Munna (A-24) in the  

T.I. Parade (Ext. 1490) held by  Vithal Sonawane (PW-465).    

 103. Moiddin  Kabir  (PW-58) and  Ashok  Kumar  Harivillas  

Pandey (PW-59) were panch witnesses.  Ashok Kumar Harivillas  

Pandey  (PW-59)  had  worked  as  a  watchman  at  Saldhana  

Apartments in Chembur for a long time.  He has deposed that he  

had been called to be a panch witness. He has proved the disclosure  

panchnama, as well as the recovery panchnama, and it was in his  

presence that the appellant (A-91) had made a disclosure as regards  

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the 3 AK-56 rifles  and 9 empty magazines.  Their  recovery had  

been made at his behest from the residence of his  mother-in-law.  

Moiddin  Kabir  (PW-58)  has  also  corroborated  the  version  of  

events provided by Ashok Kumar Harivillas  Pandey (PW-59).  

104. This charge against the appellant has been held to be proved,  

and the Designated Court has come to the conclusion that Eijaz  

Pathan  (A-137)  having  received  the  contraband  material  within  

notified  area,  gave  the  same  to  the  appellant  (A-91),  who  has  

agreed to keep the said material with him. It was held that Eijaz  

Pathan (A-137) having kept the bag of contraband at the house of  

the appellant (A-91), thereafter the further act of the appellant (A  

-91) in shifting the same to the house of his mother-in-law clearly  

shows  that  he  had  dominium  and  control  over  the  same.  The  

accused falsely told his family members and later on to his mother-

in-law that the bags contained goods of his friend and the same  

may  not  be  opened.  Hence,  the  appellant  (A-91)  being  in  

unauthorised possession of contraband in notified area of Bombay  

was guilty under Section 5  TADA. Similarly, the appellant (A-91)  

would  also  be  guilty  for  commission of  offences  under  Section  

3(3) TADA and under Sections 3 and 7 read with Section 25(l-A)

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(l-B)(a) Arms Act. More so, recovery was made at his behest and  

on his disclosure statement.  

105. It has been held that considering the manner in which, and  

the reason because of  which the appellant  (A-91) had agreed to  

keep the said contraband at his house, and the fact that the same  

had not been for the purpose of aiding a terrorist, appellant (A-91)  

was not held guilty for the offence under Section 6 TADA.  

106. Furthermore, considering the fact that the said acts had been  

committed by the appellant (A-91) at the behest of Eijaz Pathan  

(A-137), and that the same cannot be said to have been done for the  

purpose of furthering the object of a criminal conspiracy i.e. first  

charge, or even a smaller  facet of the same, and there being no  

evidence available to establish the nexus of the appellant (A-91)  

with such a conspiracy, he was not held guilty of conspiracy i.e. of  

the first charge.  

107. In view of the aforesaid evidence, it becomes clear that the  

appellant  (A-91)  had  kept  in  his  possession  unauthorisedly  

weapons at the behest of Eijaz Pathan (A-137-dead). The appellant  

told his mother-in-law and other family members that the goods  

belonged  to  his  friend,  and nobody should  open the  same.  The  

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recovery of the same at his behest stood proved. The prosecution  

successfully  proved  its  case  and  to  that  extent  he  has  been  

convicted by the Designated Court. We find no cogent reason to  

interfere with the judgment of the learned Designated Court. The  

appeal lacks merit, and is accordingly dismissed.

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CRIMINAL APPEAL NO.1226  OF 2007

Ramesh Dattatray Mali                                        …Appellant

Versus

State of Maharashtra             … Respondent                      

108. This  appeal  has  been  preferred  against  the  judgment  and  

order dated 21.5.2007 passed by a Special Judge of the Designated  

Court under the TADA in the Bombay Blast case No. 1/93, Greater  

Bombay  by which the  appellant  (A-101)  has  been  found guilty  

under  Section 3(3)  TADA, and on this  count,  the  appellant  has  

been sentenced to suffer RI for 6 years and also ordered to pay a  

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

suffer RI for 6 months.   

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

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

(A-101) has been charged with intentionally aiding and abetting  

terrorists,  by  allowing them to  smuggle  and  transport  arms and  

ammunition into India from abroad, by the illegal omission of the  

appellant (A-101) to thoroughly check the motor lorries carrying  

such arms and ammunition as well as other contraband, though the  

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same  had  been  intercepted  by  the  police  party  on  the  night  of  

9.1.1993, at Gondghar Phata and had been allowed to carry on, in  

lieu of the payment of a bribe of Rs.7 lacs, which had been  agreed  

to and accepted by all  of them, upon negotiation with terrorists.  

Hence, the appellant has been charged under Section 3(3) TADA.

B. After his trial, the appellant (A-101) has been acquitted of  

the first charge, but has been convicted under Section 3(3) TADA  

and has been sentenced as referred to hereinabove.  

Hence, this appeal.  

110. Mrs.  Anagha  S.  Desai,  learned  counsel  appearing  for  the  

appellant (A-101) has submitted that there is nothing on record to  

show that the appellant (A-101) had any knowledge regarding the  

smuggling of arms and ammunition.  At most, he may be guilty  

under the provisions of the Prevention of Corruption Act or of a  

violation of the Customs Act, or of FERA, but he certainly cannot  

be convicted under the provisions of TADA.  Therefore, the appeal  

deserves to be allowed.   

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

State, has submitted that the Hawaldar Mali, has been specifically  

named by the co-accused Uttam Shantaram Potdar (A-30), thereby  

revealing  the  fact  that  he  had  been  the  one  counting  the  silver  

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bricks  in  the  truck  when  the  same  had  been  intercepted  at  

Gondghar Phata. Thus, the appeal lacks merit, and is liable to be  

dismissed.

112. We have considered rival submissions made by the learned  

counsel for the parties and perused the records.

113. Evidence against the appellant :

(a) Confessional statement of Uttam Shantaram Potdar (A-30)

(b) Deposition of Dinesh Gopal Nakti (PW-95)

(c) Deposition of Krishnakant Nathu Ram Birade (PW-96)

(d) Deposition of Dilip Biku Pansare (PW-97)

(e) Deposition of Yeshwant Kadam (PW-109)

(f) Deposition of Vinod Chavan (PW-590)

114. Confessional statement of Uttam Shantaram Potdar (A-30):

Uttam Potdar (A-30) in his confessional statement recorded  

on 15.7.1993, has given details of the landing on 9.1.1993, of the  

smuggling of the contraband, silver etc. and about the interception  

of the two trucks carrying the contraband by the police party at  

Gondghar  Phata.   It  was  here  that  Uttam  Potdar  (A-30),  has  

revealed  that  he  had  given  illegal  gratification  for  the  earlier  

landings  to  Ramesh  Mali,  Hawaldar  (A-101).   He  (A-30)  has  

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further stated that Mechanic Chacha (A-136) had offered the police  

party  a  sum  of  Rs.10  lacs.   Ramesh  Mali  (A-101)  and  Ashok  

Narayan Muneshwar (A-70) had been the ones counting the bricks  

in the truck.  In one truck there had been 175 bricks, and in the  

other truck there were about 100 bricks and some boxes were also  

there.  Upon being asked, Mechanic Chacha (A-136) had told the  

police that the boxes contained wrist watches.  As the smuggling  

party did not have cash, Mechanic Chacha (A-136) had removed 5  

silver bricks from the truck and had given the same to Havaldar  

Pashilkar.   This version of interception and checking etc.  stands  

corroborated  by  Jaywant  Keshav  Gurav  (A-82),  Mohd.  Sultan  

Sayyed (A-90),  Salim Kutta  (A-134)  and Mechanic  Chacha (A-

136),  to  the  extent  that  the  smuggling  party  had  in  fact  been  

intercepted by the police, and that without naming the appellant,  

they have described how they had been detained, and subsequently,  

how they were released after negotiations that lasted about half an  

hour, and as regards how since they did not have cash, they had  

delivered 5 silver bricks to the police.   

115. Dinesh  Gopal  Nakti (PW-95)  and  Krishnakant  Nathu  

Ram Birade (PW-96) were labourers with Uttam Potdar (A-30),  

who had been the landing agent in the relevant incident.  They have  

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deposed  that  on  9.1.1993,  they  had  gone  alongwith  12  other  

labourers to Dighi Jetty, for the said landing.  They have further  

deposed as regards how the goods were smuggled and transported,  

but  they  have  not  named  the  appellant  (A-101)  specifically,  as  

being a member of the intercepting police team.   

 116. Dilip Biku Pansare (PW-97) was a mechanic in the State  

Transport Corporation, but had also been assisting Uttam Potdar  

(A-30)  in  his  smuggling activities  and it  was  he  who had been  

driving the vehicle carrying the smuggled articles on 9.1.1993 from  

Dighi Jetty to Bombay.  Two trucks carrying smuggled goods had  

been  intercepted  by  the  police  party  at  Gondghar  Phata.   The  

vehicles had been stopped and checked.  On their asking, the police  

had been told that the smuggled goods were silver and that there  

were also some boxes that  contained glassware.   He  has further  

provided details with respect to  how the police party had behaved,  

but did not name the appellant specifically.   

117. Yeshwant Kadam (PW-109) and Vinod Chavan (PW-590)  

are the witnesses to the recovery of Rs.15,000/- from the appellant  

(A-101).   In  his  examination  under  Section  313  Cr.P.C.,  the  

appellant (A-101) has submitted that Vinod Chavan (PW-590) had  

not made any such recovery, rather, on 21.4.1993 the appellant’s  

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wife had gone to the Shrivardhan Police Station and had given a  

sum of Rs.15,000/- that had been brought by her  by pledging her  

ornaments  with  the  Mahad  Cooperative  Urban  Bank  to  avoid  

harassment, as the same had been demanded by the Police.  The  

Police has shown the said amount to be the amount recovered from  

the appellant (A-101), by drawing up a false panchnama Exh.563,  

to this effect.   

118.  The Designated Court has dealt with all the aforesaid issues,  

and after appreciating the entire evidence on record so far as the  

appellant (A-101) is concerned, the Designated Court has held that  

Uttam Potdar (A-30) has revealed the involvement of the appellant  

(A-101) in the relevant episode. His confessional statement to this  

effect  stands  corroborated  by the  material  in  the  confessions  of  

Jaywant  Keshav  Gurav  (A-82),  Mohd.  Sultan  Sayyed  (A-90),  

Salim  Kutta  (A-134)  and  Mechanic  Chacha  (A-136),  which  

establishes  the  presence  of  the  police  party  of  the  Shrivardhan  

Police Station at Gondghar Phata, and further the  transportation of  

contraband goods being permitted in return for the receipt of bribe.  

Thus, the court has reached the conclusion that the appellant (A-

101) was in fact involved in the commission of the offence under  

Section 3(3) TADA, though he was not found guilty of the general  

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charge of conspiracy, as has been mentioned in the first  general  

charge.   

 119. The present  case is a clear  case where a police party had  

intercepted  and  checked  trucks  carrying  the  smuggled  

goods/articles  i.e.   arms,   ammunition  and contraband,  and has,  

after negotiating for half an hour, with such party, permitted them  

to  proceed  further  after  receiving  the  decided bribe  amount  i.e.  

silver bricks in lieu of cash which was to be paid later on.  

We are unable to agree with the submissions of Ms. Desai,  

with reference to the retracted confessions not being admissible in  

view of the law laid down by this court in  Aloke Nath Dutta &  

Ors. v. State of West Bengal, (2007) 12 SCC 230.

For  the  foregoing  reasons,  the  appeal  lacks  merit,  and  is  

accordingly dismissed.  

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CRIMINAL APPEAL NO.1422  OF 2007

Shaikh Asif Yusuf                                    …Appellant

Versus

State of Maharashtra                                … Respondent             

120.   This  appeal  has  been  preferred  against  the  judgment  and  

order dated 31.5.2007, passed by a Special Judge of the Designated  

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

convicting the appellant under Sections 3(3), 5 and 6 TADA and  

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

Arms Act.    

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

A. In addition to the main charge of conspiracy, he has been  

charged  under  Section  3(3)  TADA,  for  agreeing  to  keep  in  his  

possession,  in  the  notified  area,  4  hand-grenades  that  had  been  

given to him by the co-accused Nasim Ahmed Ashraf Qureshi (A-

49), in an unauthorised manner, which had formed a part of the  

consignment that had been smuggled into India by the conspirators  

knowingly  and  intentionally,  for  the  purpose  of  committing  

terrorist acts.  

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B. The appellant (A-107)  has also been charged under Sections  

5 and 6 TADA, and Sections 3, 7 and 25(1-A)(1-B)(a) of the Arms  

Act for keeping the aforementioned 4 hand-grenades that had been  

given to him by the co-accused Nasim Ahmed Ashraf Qureshi (A-

49), in his possession.

C. The appellant has been convicted under section 3(3) TADA  

and  has  been  sentenced  to  suffer  RI  for  5  years,  and  has  been  

ordered to pay a fine of Rs.25,000/-, and in default to suffer further  

RI  for  6  months.   The appellant  has  also  been convicted  under  

Section 5 TADA and has been sentenced to suffer RI for 8 years,  

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

for one year.  The appellant has also been convicted under Section  

6 TADA  and has been sentenced to suffer RI for 8 years, and to  

pay a fine of Rs.50,000/- and in default to suffer further RI for one  

year. The appellant has also been found guilty under the provisions  

of the Arms Act, but no separate sentence has been awarded for the  

said  offences.  All  the  sentences  have  been  directed  to  run  

concurrently.    

Hence, this appeal.  

122. Shri  Mushtaq  Ahmad,  learned  counsel  appearing  for  the  

appellant, has submitted that the appellant has been convicted by  

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the  learned  Special  Judge  merely  on  the  basis  of  surmises  and  

conjectures and there is no evidence on the basis of which, the said  

conviction can be sustained. Chandrakant Atmaram Vaidya (PW-

40),  who has  been relied upon for  conviction had been a  stock  

panch witness,  and had been easily  available  to the police.  The  

recovery   had  been  made  from an open  area,  to  which  a  large  

number  of  persons  had  access.  Therefore,  the  recovery  and  the  

panchnama in respect thereof, including the disclosure statement  

that  has  allegedly  been  made by  the  appellant  cannot  be  relied  

upon. The appellant has been handicapped since his childhood, and  

thus,  his  right  hand  is   impaired.  Furthermore,  he  has  already  

served more than 5 years in jail.  Thus, the appeal deserves to be  

allowed.   

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

respondent, has submitted that the recovery had been made on the  

basis of the  disclosure statement of the appellant, and had been  

made strictly in accordance with the requirements of Section 27 of  

the Evidence Act, and therefore, has rightly been relied upon. No  

fault can be found with the impugned judgment and order.  The  

appeal lacks merit and is therefore, liable to be dismissed.  

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124. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the record.  

125. Evidence against the appellant (A-107):

(a) Confessional  statement  of  Nasim  Ashraf  Shaikh  Ali  Barmare(A-49)

(b) Deposition of Chandrakant Atmaram Vaidya (PW-40)

(c) Deposition of Ratansingh Kalu Rathod (PW-600)         

The appellant (A-107) has not made any confession.

126. Confessional  statement  of  Nasim  Ashraf  Shaikh  Ali  Barmare (A-49) :   

As per the confessional statement of A-49, the appellant (A-

107)  had gone to  Dubai  alongwith several  other  co-conspirators  

and co-accused to the house of Tiger Memon (AA) and his brother  

Yakub,  and from there he had also  gone to  Pakistan  to  receive  

weapons’  training,  and  had  infact,  received  the  same.   The  

appellant  had  learnt  how  to  explode  black  soap  (RDX)  with  a  

safety fuse, or by a battery after inserting into the chemical, a small  

aluminium coloured detonator. He had returned to India via Dubai.  

In Dubai, Tiger Memon (AA) had spoken to the appellant and to  

the other accused, about the atrocities that had been committed by  

the Hindus, against the Muslims in Bombay, between  December,  

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1992 and January, 1993.  After returning to India, the appellant had  

attended a conspiratorial meeting that had been held at a flat on  

Bandra Hill Road, on 9.3.1993 alongwith other 10 other accused,  

including Tiger Memon (AA), Javed Chikna, Anwar and Usman  

(PW.2).   

The appellant  (A-107)  had participated in filling up RDX  

which had been duly mixed with steel scrap, alongwith the other  

co-accused in the intervening night of 11th and 12th March, 1993.  

On 12.3.1993, Usman (PW.2) had given him 7 hand-grenades, one  

loaded gun and a small plastic bag that had contained bullets, and  

had directed him to go on his mission. He had gone to the Sahar  

International Airport, and had thrown a hand-grenade there which  

owing to the fact that it could not reach its target, had exploded  

mid-way. Nasim Ashraf Shaikh Ali Barmare @ Yusuf (A-49) who  

had been accompanying the appellant (A-107) at the said time, had  

gotten frightened, and both of them had thus, run away from there  

on a motor cycle.  The co-accused (A-49) had given the appellant  

(A-107), 4 hand-grenades and had told him to keep the same with  

him for some time.

127.       Chandrakant  Atmaram  Vaidya (PW-40),  a  panch  

witness, has deposed that on 8.4.1993, he had gone to the Mahim  

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Police Station, upon being called there through a police havaldar.  

Here,  P.I.  Rathod had told him that  the person who was sitting  

there, was actually an accused in the Worli Blast case, and wanted  

to make a disclosure statement voluntarily. Upon being asked by  

the witness, the accused had told him his name, which was  Asif  

Yusuf Shaikh (A-107), and he further told him that he could aid in  

the recovery of certain bombs that had been hidden by him.  The  

police officer had recorded the statement of the accused and had  

prepared  the  memorandum  panchnama,  which  had  then  been  

signed  by  the  panch  witnesses.   On  the  basis  of  the  disclosure  

statement of the appellant (A-107), the police party had taken him  

and  the  panch  witnesses  in  a  van,  and  the  said  van  had  been  

stopped at a place upon a request made by the appellant (A-107). It  

was a heap, in which there lay broken tiles.  The appellant (A-107)  

had removed the other things and the tiles,  and had taken out a  

plastic  bag  which  had  contained  4  hand-grenades.   The  police  

inspector had prepared a panchnama, which had been read over to  

the panch witnesses and had been duly signed by them.  The four  

labels, that had been  duly signed by the police inspector, had then  

been affixed to these bombs.  All of them had then returned to the  

Mahim Police  Station.   This  witness  has  admitted  in  his  cross-

examination, that he had also been the panch witness in another  

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enquiry that had been made on 8.4.1993, wherein Ayub Ibrahim  

Qureshi (A-49) had made a disclosure statement, on the basis of  

which a recovery had been was made from a nearby area (Exh.127-

128).  It  has further been explained by him, that the place from  

which the recovery had been made, was an open area and that a  

large number of persons had access to it.  The witness has further  

stated that after the recovery in the first case was over, the police  

havaldar  had  come  and  taken  him  back  to  become  the  panch  

witness for another case, as during those late hours, no other panch  

witness had been available.

 128. Ratansingh  Kalu  Rathod  (PW-600),  a  police  Inspector  

corroborated the evidence of  Chandrakant  Vaidya (PW-40),  and  

has narrated how the disclosure statement had been recorded, how  

the memorandum panchnama had been prepared and also how, the  

said recoveries had been made.  He has pointed out that at the place  

of recovery, the accused had removed items from the heaps, and  

that after digging, had taken a bag containing four hand-grenades.  

He has also given full details as regards how the two recoveries  

had  been  made  in  a  close  proximity  of  time,  and  from nearby  

places.   

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129. In  his  statement  made  under  Section  313 of  the  Code  of  

Criminal Procedure, 1973, the appellant (A-107) has pleaded false  

implication in the said case, and has stated that the said recoveries  

had  not  been  made  at  his  instance,  as  he  had  never  been  in  

possession of any hand-grenades.  

130. On the issue of recovery, this Court in  State of H.P. v. Jeet  

Singh (supra), held :  

”There is  nothing in Section 27 of  the Evidence   Act  which  renders  the  statement  of  the  accused   inadmissible if recovery of the articles was made   from any place  which  is  “open or  accessible  to   others”.  It  is  a  fallacious  notion  that  when   recovery  of  any  incriminating  article  was  made   from a place which is open or accessible to others,   it would vitiate the evidence under Section 27 of   the Evidence Act. Any object can be concealed in   places which are open or accessible to others. For   example,  if  the  article  is  buried  in  the  main   roadside or if it  is concealed beneath dry leaves   lying on public places or kept hidden in a public   office, the article would remain out of the visibility   of  others  in  normal  circumstances.  Until  such   article is disinterred, its hidden state would remain   unhampered. The person who hid it alone knows  where it is until he discloses that fact to any other   person. Hence, the crucial question is not whether   the  place  was  accessible  to  others  or  not  but   whether it was ordinarily visible to others. If it is   not, then it is immaterial that the concealed place   is accessible to others.” (Emphasis added)

131       In State of Maharashtra v. Bharat Fakira Dhiwar,  

(supra), this court dealt with the issue.    

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132. Thus,  in view of  the above,  the submission made by Mr.  

Mushtaq Ahmed, stating  that as the recovery had been made from  

an open place to which all  persons had access,  cannot be relied  

upon and  is not worth acceptance.  

133. Undoubtedly, the appellant’s disclosure statement had been  

made before the police, as well as the panch witness. The fact that  

he did not disclose the place where the contraband had been hidden  

remains entirely insignificant,  for  the reason that he had led the  

police party to the said place, and that the said recovery had been  

made at his behest.  The open space from where the recovery had  

been  made  though  was  accessible  to  anybody,  it  must  be  

remembered that the contraband had been hidden, and that it was  

only after digging was done at the place shown by the appellant,  

that  such  recovery  was  made.  Hence,  it  would  have  been  

impossible for a normal person having access to the said place, to  

know where the contraband goods were hidden.  

134. Nasim Ashraf Shaikh Ali Barmare (A-49) in his confessional  

statement,  has disclosed that he had handed over the remaining  

hand-grenades to the appellant. As the said contraband could not  

have  been  used  other  than  for  the  aforementioned  terrorist  

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activities,  the  submission  advanced  on  behalf  of  the  appellant,  

stating that it was not proved that the contraband so hidden were to  

be used for terrorist activities, cannot be accepted. In light of the  

facts and circumstances of the case, it cannot be believed that the  

appellant  had not been aware of the contents of  the contraband,  

even though the same had been wrapped in carbon paper.  

Furthermore,  had  the  appellant  not  been  aware  of  the  

contents of the contraband, there would have been no occasion for  

him to hide the same away after digging up the earth, and further to  

yet again, cover up the said material with earth and heaps of items.  

Thus, we are of the view that the appellant had been fully aware of  

the contents thereof.   

135. In view of the above, we concur with the conclusion that has  

been  reached  by  the  learned  Special  Judge.   Thus,  the  present  

appeal lacks merit, and is accordingly dismissed.  

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CRIMINAL APPEAL NO.1180  OF 2007

Mubina @ Baya Moosa Bhiwandiwala         …Appellant

Versus

State of Maharashtra                    … Respondent                      

136. This  appeal  has  been  preferred  against  the  judgment  and  

order dated 14.6.2007 passed by a Special Judge of the Designated  

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

which the appellant has been convicted under Section 3(3) TADA,  

and a punishment of five years rigorous imprisonment with a fine  

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

R.I. for 6 months was imposed.   

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

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

was  charged  with  being  an  associate  of  Tiger  Memon  (AA),  

abetting and knowingly facilitating the commission of terrorist acts  

committed on 12.3.1993.  She was further charged with facilitating  

the holding of conspiratorial meetings on 9th and 10th March, 1993  

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in  her  flat  in  Bandra,  wherein  the  terrorist  acts  came  to  be  

discussed and finalised.   

B. After  conclusion  of  the  trial,  the  learned  Special  Judge  

convicted A-96 as referred to hereinabove.  

Hence, this appeal.  

138. Mr.  Zafar  Sadique,  learned  counsel  for  the  appellant  has  

submitted  that  it  was  her  brother  who was  a  close  associate  of  

Tiger Memon,  and after  the death of  her  brother she was given  

some money for household expenses by Tiger Memon, and she did  

not  work for  him or  had any knowledge of  her  involvement  in  

terrorist activities. Thus, the appeal deserves to be allowed.

139. Mr.  Mukul  Gupta,  learned  senior  counsel  for  the  State  

vehemently opposed this appeal by stating that her confession itself  

reveals  that  she  knew  that  Tiger  Memon  was  a  smuggler.  

Moreover, the fact that conspiratorial meetings were held in her  

house demonstrates her knowledge of the conspiracy, and being a  

party to the same she should have also been convicted of the larger  

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

140. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the records.  

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141. Evidence against the appellant:

(a) Confessional  statement  of  the  appellant  Mubina  @  Baya  Moosa Bhiwandiwala (A-96)  

       (b) Confessional statement of Asgar Yusuf Mukadam (A-10)

(c) Confessional statement of Abdul Gani Ismail Turk (A-11)

(d) Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

(e) Confessional  statement  of  Nasir  Abdul  Kadar  Kewal  @  Nasir Dhakla (A-64)

(f) Confessional  statement  of  Niyaz Mohmed @ Aslam Iqbal  Ahmed Shaikh (A-98)

(g) Confessional statement of Zakir Hussein Noor Mohammed  Shaikh (A-32)

142. Confessional statement of the appellant Mubina @ Baya  Moosa Bhiwandiwala (A-96):             

     The evidence against the appellant (A-96) had been her own  

confessional statement which revealed that her brother was a close  

associate  of  Tiger  Memon  (AA)  and  indulged  in  smuggling  

activities.  Out of that ill-gotten money, he purchased the said flat  

and other commercial properties and a car. However, subsequently,  

when he was pursued by the Customs officials on 10.12.1990, he  

jumped from the said building and died.  Subsequently, she had  

been living in the said flat alongwith her parents and widow of his  

brother with a minor child.  She was unmarried and 22 years of age  

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at that time.    She deposed that after the death of her brother, Tiger  

Memon  (AA)  had  supported  her  family  financially  by  paying  

Rs.10,000/-  per  month  for  household  expenses  which  had  

subsequently been enhanced to Rs.20,000/- on being asked by her  

father.  The car purchased by her brother was being driven by the  

appellant (A-96).  Tiger Memon used to keep his own money at her  

residence and it ranged from Rs. 1 lakh to 5 lakhs.   She further  

deposed  that  she  personally  knew Tiger  Memon  (AA)  and  had  

been visiting him at his residence in Mahim.  On 8.3.1993, Shafi  

came to her house and handed her an envelope. On opening the  

same, she found three passports and two tickets of Tiger Memon  

(AA).   Out  of  them,  one  ticket  was  of  Air  Emirates  Bombay-

Dubai-Bombay and second was of Gulf Air Bombay-Abu Dhabi-

Bombay.  Both the tickets had been purchased through East West  

Travels and both of them had been for 12.3.1993.  The said tickets  

and passports  had been  taken by Asgar  (A-10),  an  associate  of  

Tiger Memon (AA) on 11.3.1993 at 11.00 p.m. from her residence.  

Samir Ahmed Hingora (A-53), owner of Magnum Videos, sent a  

sum  of  Rs.50,000/-  to  her  for  household  expenses  twice.  On  

9.3.1993, a meeting was held at her residence at 8.00 o’clock in the  

evening  which  was  attended  by  Tiger  Memon  (AA)  and  his  

associates.   Tiger  Memon  (AA)  was  directing  his  men  in  the  

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bedroom of the house for a period of approximately half an hour  

and she and her family had been sitting outside.  Usman (PW-2),  

Javed, Bashir and Nashir alongwith 10-15 other boys came at her  

residence.  She opened the door.  They asked for Tiger Memon  

(AA) and she replied that he was inside.  Tiger Memon (AA) spoke  

to them, in the bedroom.  Appellant was asked to prepare 15-20  

cups of tea.  After preparing the tea, she knocked the door of the  

hall; one boy came and took the tea inside.  Tiger Memon (AA)  

and those persons were discussing about the  plan.   They left  at  

about 12.30 in the night.  On the next day on 10.3.1993 at about  

9.00 or 9.30 at night, those boys came again to her residence at the  

instance of Tiger Memon and  the appellant (A-96) asked them to  

wait.  Then, Tiger Memon (AA) came and discussed the plan with  

those boys.  Then all of them left her house at about 12.00 o’clock  

at night.  The police arrested the appellant after 4-5 days of bomb  

blasts.    

143. Confessional statement of Asgar Yusuf Mukadam (A-10):

He  has  corroborated  the  confessional  statement  of  the  

appellant (A-96) to the extent that he had collected the passports  

and  tickets  kept  with  appellant  (A-96)  by  which  Tiger  Memon  

(AA) left for Dubai on 12.3.1993, early in the morning.  

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144. Confessional statement of Abdul Gani Ismail Turk  (A-11):  

His confessional statement revealed that on 7th March, 1993  

in the evening, he went to accused Imtiyaz for taking the scooter  

which he sold to him (A-11),  then he came to know that  Tiger  

Memon  (AA)  had  come  back  to  Bombay  from  Dubai  and  he  

wanted to meet him at Al-Husseini building.    Abdul Gani Ismail  

Turk  (A-11)  went  there  and  met  Tiger  Memon  (AA)  at  his  

residence.   He  was  there  alongwith  his  parents  and  brothers.  

Subsequently,  Shafi  took  the  accused  (A-11)  with  him  in  the  

Maruti car.  Shafi stopped the car and went to make a call asking  

accused (A-11) to wait at the house of Mubina alias Baya Moosa  

Bhiwandiwala (A-96).  He  (A-11) reached at the flat of Mubina,  

appellant (A-96).  After sometime, Tiger Memon (AA) and Shafi  

came there.  Some other boys were also present there.    On the  

next  day  on  8.3.1993,  he  (A-11)   went  to  the  house  of  Tiger  

Memon and after  sometime, both of  them went to the house of  

Mubina, appellant (A-96) by the Maruti car of Tiger Memon. Tiger  

Memon  went  up  to  her  flat,  though,  accused  (A-11)  remained  

sitting in the car.  Shafi came down from her flat and went towards  

Jogeshwari  taking  accused  (A-11)  in  a  Commander  Jeep  and  

returned after  one  hour.   He  (A-11)  found one  bag in  the  jeep  

which contained 2 rifles, 4-6 handgrenades and some bullets.  Then  

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they came back to  the  flat  of  Mubina,  appellant  (A-96).   Tiger  

Memon and other co-accused came down from her flat  at  about  

11.30-12.00 o’clock at night and they left in jeep and Maruti car.  

145. Confessional statement of Parvez Nazir Ahmed Shaikh, (A-12):  

He deposed that in the second week of February 1993, he  

alongwith other co-accused brought the contraband smuggled from  

Dubai to Bombay in a jeep at 11.30 p.m.  The jeep was parked at  

the house  of  Mubina,  appellant  (A-96),  and he handed over the  

keys of the jeep to Mubina, appellant (A-96).   

146. Confessional statement of Nasir Abdul Kadar Kewal @  Nasir Dhakla (A-64):  

In  his  confessional  statement,  he  stated  that  on  9.3.1993  

Tiger Memon took him alongwith other co-accused to the flat of  

Mubina, appellant (A-96) at Bandra, wherein he met all the persons  

who got training in Pakistan.  Again on 10.3.1993, he was called at  

the house of appellant (A-96) for a meeting. He corroborated the  

case of the prosecution that conspiratorial meetings were held at  

the flat of Mubina (A-96) on 10.3.1993.

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147. Confessional statement of Niyaz Mohmed @ Aslam Iqbal  Ahmed Shaikh  (A-98):

In his confessional  statement,  he stated that on 8th and 9th  

March, 1993, he was asked by Usman (PW-2) to be ready and he  

went alongwith co-accused Irfan Chaugale to a flat at 3rd floor in a  

building behind Bhabha Hospital in Bandra.  Some other persons  

were there, including Tiger Memon, Javed Chikna, Bashir, Usman,  

Sardar Khan and Parvez.  After sometime, a girl, the appellant (A-

96) who was called by Tiger Memon, brought tea and served to all  

of them.  

148. Confessional  statement  of  Zakir  Hussein  Noor  Mohammed Shaikh (A-32):  

In his confessional statement, he stated that on 10.3.1993, on  

instructions he went to attend the meeting at Bandra flat alongwith  

Usman (PW-2).  Tiger Memon was sitting there directing the group  

of boys and assigning them different roles.   

149. After  appreciating  the  entire  evidence  on  record,  the  

Designated Court came to the conclusion as under:  

  “51).Since  the  matters  from  the  said   confession  are  so  eloquent  that  hardly  any   dilation  would  be  necessary  about  the  same.   However, the defence having urged that since   A-96 was not present in the relevant meeting in   

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which the discussion was made, she cannot be   held guilty for commission of any offence. It is   urged hence her confession fails to disclose her   involvement  in  commission  of  offence  and as   such is liable to be discarded.  It is urged that   in said event the material in confession of the   co-accused revealing that the meeting was held   at her house but again not revealing that she   was  party  to  the  said  meeting  will  not  be   sufficient to fastening guilt upon her.   

52)   The  aforesaid  submissions  though  apparently  appears  to  be  attractive  the  same   does  not  stand  to  the  reason.  Considering   matters in entirety in the said confession it is   clear  that  Tiger Memon was also residing in   the  nearby  vicinity.  In  the  said contingencies   Tiger  Memon  holding  meeting  of  such  a   number of persons at the house of Mubina itself   raises  a  grave  doubt  about  the  purpose  for   which the said meeting was held by him at the   said  house  instead  of  his  own  house.  Apart   from  the  same,  careful  consideration  of  the   material in the confession in terms reveal close   association developed in between Tiger Memon  and  A-96.  The  other  material  pertaining  to   keeping tickets of Tiger Memon at her house,   Tiger  Memon paying money for  the  expenses   himself  increasing  the  said  amount  upon  the   say  of  father  of  A-96  are  the  circumstances   curiously  throwing  the  light  upon  the   relationship  in   between  them.  Even  the   material  in  the confession reveals  that  Tiger,   Memon had a talk with his friend after taking   him to the bed room in the said house. All the   said circumstances are self-eloquent.   

53)   Furthermore the recital in the confession   that after the Tea was taken “the said person   were discussing about their plan” is a recital   clearly  revealing  knowledge  of  A-96  of  the   meeting  being  regarding  the  plan.  Since  in   cases  of  conspiracy  direct  evidence  would   

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never be available the said self-eloquent recital   is  sufficient  to  infer  about  A-96  having  full   knowledge  about  the  purpose  for  which  the   said  meeting  was  held  by  Tiger  Memon.   Needless to add neither the confession reveals   the reason because of which A-96 had allowed.   Tiger Memon to take the meeting in her house.   Furthermore  even a trial,  no explanation has   been given by A-96 regarding the said respect.   Thus considering the said act committed by A- 96  conclusion  is  inevitable  about  herself   knowing  full  well  the  purpose  of  the  said   meeting had allowed Tiger Memon to hold the   same at her house and that too in spite of his   house being not far away from the said place.   Thus, the same clearly denotes of A-96 having   aided and abetted and assisted a Tiger Memon   for  having  a  meeting  for  chalking  out  final   plans  of  conspiracy  hatch.  Thus  all  the  said   material is sufficient for holding her guilty for   commission  of  offences  under  Sec.  3(3)  of   TADA.    54) In  the  aforesaid  context  the  defense   submission that A-96 was not alone residing in   the  said  flat  or  that  her  father  and  other   members of her family were also residing at the   said Flat and as such she cannot be said to be   responsible  for  granting  the  permission  to   Tiger Memon for holding meeting in the said   flat  as  the  same   might  have  been  given  by   somebody else i.e. her father etc. also does not   stand  to  the  reason.   Such  conclusion  is   apparent as the material in her confession does   not support such a theory and on the contrary   the  meeting  held  under  nose  on  the  relevant   day clearly signifies the same being held with   her concurrence.  Needless to add that material   in the confession also denotes of affairs of the   said  House  being  managed  by  her  after  the   death of her brother.  

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55)     Since the matters in the confession of A- 96 or at least the fact of meeting held in her flat   being corroborated material in the confession   of accused referred during the discussion made  earlier,  the  said  aspect  will  not  need  any   reiteration.  Having  regard  to  the  same  the   matters  in  her  confession  which is  disclosing   her  involvement,  i.e.  the  admission  in   commission of the offence u/s.3(3)of TADA will   be required to be taken into consideration and   thus will  be required  to  be acted upon. As a   result  of the same, she will be required to be   held guilty for commission of the said, offence.   

56) However, even accepting the said material   in  her  confession  and  even  the  conclusion   arrive about her guilt still it will be necessary   to say that the said material cannot be said to   be  sufficient  for  holding  her  guilty  for   commission  of  offence  of  an  conspiracy  for   which he is charge with at a trial. The same is   obvious that there exists no evidence of herself   having committed any act prior to this meeting   and even after the said meeting denoting that   she  was  the  Member  of  the  conspiracy.  The   same is obvious as there is clearly paucity of   evidence  to  establish  A-96  having  committed   any  other  act  furthering  the  object  of  such   conspiracy.   Hence she cannot be held liable   for being party to the conspiracy, as even the   evidence pertaining to the said meeting reveals   that she has not participated in the same and   merely sent Tea and allowed Tiger Memon to   hold meeting at her residence.  

57) Thus, taking into consideration the extent   and/or severity of act committed by A-96 and   the other relevant factors and having regard to   the  basic  principle  behind  awarding   punishment  being to eradicate  the element  of   criminality and not to punish individual human  being entertaining same, herself being woman   accused,  herself  having  faced  a  long  drawn  

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prosecution, role played by her cannot be said   to be of a severe nature, the probable reason   because  of  which  she  had  committed  the   relevant acts, herself being not the sole person   who had assisted Tiger Memon in the relevant   episode  and  even  from  said  angle,  act   committed by her clearly  appearing to  be on   much  lower  pedestal  than  such  a  role  of   facilitation,  assistance  played  by  other  co- accused  in  the  case,  a  minimum  sentence   prescribed under the law i.e. a sentence of R.I.   for 5 years and a fine amount of  Rs.25,000/-   with  suitable  addition  of  RI  in  default  of   payment  of  fine  for  commission  of  offence   u/S.3(3)  of  TADA,  ordered  for  A-96  would   serve the ends of justice.”

                                                            (Emphasis supplied)   

150 There is no evidence on record to show that the appellant  

(A-96) is the actual owner of the flat where the meeting took place.  

The appellant (A-96) was simply present in the next room when the  

meeting was held and she was asked to serve tea. Further, it was  

her brother who was well acquainted with Tiger Memon (AA) and  

after his death Tiger Memon(AA) simply gave some money to her  

family for household expenses and that money was not for her own  

personal/individual expenditure. Moreover, while serving them tea  

she might have overheard something about a plan that was being  

formulated by the co-accused, but not being a party to the meeting  

she  could  not  have  possibly  known  or  understood  the  plan.  

According to the prosecution case, she had been given air tickets  

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by Tiger Memon (AA) to keep and one of the tickets  had been  

taken by him in the early morning hours of the day of the blasts i.e.  

12.3.1993. There is nothing on record to show that the appellant  

(A-96) knew that the blasts were going to take place on that day, or  

that  she  had  acquired  any  knowledge  that  Tiger  Memon  (AA)  

would  be  absconding  from  India.  Moreover,  she  was  not  a  

participant in any overt act in furtherance of the conspiracy.  

151. Due to the foregoing reasons, the appellant (A-96) is held to  

be entitled for benefit of doubt.  Thus, we allow the appeal and  

acquit her for the charge under Section 3(3) TADA. The conviction  

and sentence awarded by the Designated Court are set aside.

           The appellant is on bail.  Her bail bonds stand discharged.

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CRIMINAL APPEAL NO. 1225 OF 2007

Noor Mohammed Haji Mohammed Khan         …Appellant

Versus

The State of Maharashtra (through CBI, STF)       … Respondent                     

152. This  appeal  has been preferred against  the judgments and  

orders dated  23.11.2006 and 5.6.2007, passed by a Special Judge  

of  the Designated  Court  under  the TADA in the Bombay Blast  

Case No. 1/1993.  

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

In addition to the main charge of  conspiracy,  he has also  

been  charged under  Section  3(3)  TADA,  for  permitting  the  co-

accused Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his  

associates, to store the contraband/explosive material/RDX in his  

godown between the 2nd and 9th of February, 1993, and has further  

been charged under Section 5 TADA, for possession thereof. He  

has  also  been charged under  the provisions  of  Section 6 of  the  

Explosive  Substances  Act,   and the  Explosives  Rules,  1983 for  

storing and concealing 58 bags of RDX explosive that had been  

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smuggled into the country by the co-accused, between the 2nd and  

9th of February, 1993.

154. The appellant  has  been convicted  under  Section 5 TADA  

and has been awarded a punishment of 5 years alongwith a fine of  

Rs.1,00,000/-, and in default of payment of fine, to further undergo  

3 years RI, and also under Section 201 IPC has been awarded a  

punishment  of  5  years,  alongwith  a  fine  of  Rs.50,000/-,  and  in  

default  of  payment  of  fine  to  suffer  further  RI  for  one  year.  

However,  both  the  sentences  have  been  directed  to  run  

concurrently.

Hence, this appeal.

155.         Shri Shree Prakash Sinha, learned counsel appearing for  

the appellant,  has submitted that  the conviction of  the appellant  

which is based on the confession of the appellant, is not sustainable  

for  the  reason  that  the  confession  itself  has  revealed,  that  the  

appellant had refused to record any confession at the initial stages  

of  recording  his  confession.  The  same  is  evident  from  the  

confessional statement itself, and Shri Sanjay Pandey, DCP (PW-

429), in light of this, ought not to have recorded his confessional  

statement at all. The recoveries made at the behest of the appellant  

cannot be relied upon, as the same do not connect the appellant  

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with the same in any manner. Furthermore, the recovery has not  

been made in accordance with law, for the simple reason that the  

disclosure statement of  the appellant,  which was recorded under  

Section 27 of Evidence Act was made simultaneously. The same is  

shown to have been made at the time, when the appellant had been  

present  before the learned Designated Court,  held at the Mahim  

Police Station itself. While considering his application for remand,  

no satisfactory explanation could be furnished by the prosecution  

as  regards  how  remand  proceedings,  and  the  recording  of  the  

disclosure statement of the appellant could take place together. The  

evidence suffers from material contradictions, and thus, ought to  

have been rejected. Therefore, the appeal deserves to be allowed.  

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

State,  has  vehemently  opposed  the  appeal  contending  that  all  

proceedings had been conducted strictly in accordance with law.  

Undoubtedly,  the confessional  statement  suggests,  that  appellant  

had refused to make a confessional  statement.  However,  upon a  

cogent reading of the said statement, the impression created by the  

learned counsel for the appellant stands completely dispelled.  The  

conviction of the appellant is based upon a correct appreciation of  

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the evidence available. Thus, the appeal lacks merit and is liable to  

be dismissed.  

157. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties, and perused the record.  

158. Evidence against the appellant (A-50):

(a) Confessional statement of the appellant (A-50)

(b) Confessional statement of Shakeel Shahabuddin Shaikh (A-59)

(c) Confessional statement of Munna (A-24)

(d) Deposition of Upendra G. Patel (PW-33)

(e) Deposition of Wilson John Britto (PW-274)

(f) Deposition of Ajit Pratap Singh (PW-291)

(g) Deposition of Fazal Akbar Khan (PW-468)

(h) Deposition of Prakash Dhanaji Khanvilkar (PW-513)

(i) Deposition of Kailas Baburao Dawkhar (PW-518)

(j) Deposition of Dattatray Maruti Wayal (PW-521)

159. Confession of   Noor Mohammed Haji Mohammed Khan  (A-50)  :   

The confession of appellant (A-50) was recorded on 14th/16th  

May, 1993. The appellant had been 32 years of age at the time of  

the said incident. The relevant part of his confession suggests that  

he had acquired land at Kashimira, measuring 1200 sq.mtrs.  He  

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(A-50) had known the co-accused Mohammad Jindran (now dead)  

and  Yeda  Yakub  (AA).  The  said  plot  was  taken  care  of  by  a  

watchman who had been appointed by him.  The said watchman  

had been removed by the appellant (A-50) on the basis of certain  

complaints regarding his behaviour with a local girl, and another  

watchman  had  thereafter,  been  appointed.  When  he  (A-50)  had  

visited the said plot in the last week of February, 1992, he had seen  

some sacks lying in the shed constructed thereon.  The watchman  

had told  him that  the  said  goods had been sent  by  Mohammad  

15/20 days  ago,  through Shakeel  (A-59-acquitted),  the  driver  of  

Mohammad,  by  way of  a  tempo.  The  appellant  (A-50)  had not  

made any further enquiry as regards the same from the watchman,  

or from Mohammad, with respect to the contents thereof.  When he  

had  visited  the  place  for  the  second  time,  he  had  removed  the  

contents, and had seen what looked like black soap. He had then  

returned to Bombay, and had asked Mohammad about the goods.  

Mohammed and  Shakeel  had  denied  having  any  information as  

regards the said goods.  

He (A-50) had again visited the site on 16th/17th March, 1993  

at Kashimira alongwith Rashid Khan, – a businessman who dealt in  

chemicals,  and  had  taken  out  the  packet.  Rashid  Khan,   after  

examining the contents of the packet  thereof, had told him that the  

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same was explosive material.  Rashid Khan had taken the packet  

with him, and had subsequently informed him that the same  most  

certainly  contained  material  for  making  bombs.  By  this  time,  

certain material had been seized in Mumbra and due publicity had  

been given to the same in the newspapers. It had been revealed that  

the material belonged to Yeda Yakub.  The appellant (A-50) had  

then  asked  Rashid  Khan  to  help  him  to  destroy  the  material.  

Rashid Khan had told him that he knew one Munna, who could  

help  them  to  destroy  the  same.  The  appellant  (A-50)  had  then  

decided to spend a sum of Rs.5 lakhs, for the purpose of destroying  

the  material  as  he  had  apprehensions  regarding  the  incident  of  

recovery of the same material in Mumbra. They had met Munna at  

the Lion Pencil Resort at Nangla.  Munna had been assigned the  

job of distribution of the material, and the appellant was informed  

in  the  evening,  that  the  said  work  had  been  completed.  The  

appellant had gone to Bombay and had given a Toyota Corolla car  

to Rashid Khan, in lieu of payment of a sum of Rs. 3 lacs, and the  

remaining amount had been  paid by Mohammad.  

After 3-4 days, he had gone to the site with Shakeel, and the  

watchman had told him that  some of the material  had been left  

behind.  He had then put the remaining material in a jeep, had gone  

with  Shakeel,  and  Shakeel  had  then  thrown  the  same  along  

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Kashimira Highway, from a bridge at a distance of about 6 Kms.  

from Kashimira.  As some of  the said  material  had fallen  down  

outside of the water channel, the appellant had gone down with the  

jeep, and had thrown the sacks containing left over material into  

water and had then driven back to Bombay.   

It was on 8th April that Munna had telephoned the appellant  

(A-50) demanding the balance amount of Rs.2 lacs that had been  

promised to him stating that, otherwise he (A-50) would  face dire  

consequences. The appellant had then informed Mohammad, who  

had subsequently  informed the police,  and they had thus  gotten  

Munna arrested. After some interrogation, the appellant (A-50) had  

also been arrested.   

He (A-50) has further stated that he had not known that the  

material  was  actually  RDX. Once he  had become aware  of  the  

same,  he had thrown the same into the water,  apprehending his  

arrest by the police. The remaining material had been thrown off  

the bridge along the Kashimira Highway.  He (A-50) had himself  

taken  the  police  to  the  said  place  and  had  gotten  the  material  

recovered from there.  

The  appellant  (A-50)  had  also  made  retraction  of  his  

confession on 14th/16th May, 1993, at a belated stage.  

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160. Confessional statement of Shakeel Shahabuddin Shaikh (A-59):

According  to  his  confessional  statement,  he  had  been  

working as the driver of Mohammad Jindran (AA). He had been  

told in the second week of February, 1993 by his employer, that a  

tempo was parked at  Dahisar Checknaka,  near the Delhi Darbar  

Hotel, that contained sacks of cement and that he must unload the  

same onto a plot that belonged to Noor Khan (A-50), who was a  

friend of  his  employer’s,  i.e.  of   Mohammad Jindran’s.  A letter  

had been given to him, so that the driver of the tempo would permit  

Shakeel  to  unload the  contents  of  the said  tempo onto the  land  

belonged to Noor Khan (A-50). Shakeel had thus gone there, and  

had contacted the driver of the parked tempo. He (A-59)  had then  

taken the said tempo and had off loaded the contents of same onto  

the land of Noor Khan (A-50). There had been about 1200 to 1300  

sacks, and also some square type boxes, that were wrapped and had  

been kept alongwith the said sacks. The same were also unloaded.  

He (A-59) had telephoned his employer after  doing so,  and had  

informed him that  the  work  had  been  done.  The  sacks  and the  

boxes had been unloaded at the Noor Khan’s place.  He (A-59) had  

accompanied Noor Khan to the site, and had asked the watchman  

there who were the owner of the material kept in his godown, and  

it was then that he was told that the same belonged to Mohammad  

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Jindran, and that Shakeel had brought the material there.  Then,  

Shakeel had told him that he had done so upon the instructions of  

Mohammad Jindran.  

Fifteen days after Eid, Noor Khan (A-50) had gone to the  

office  of  Mohammad  Jindran,  and  had  asked  him  about  the  

material kept at his place and had said that he wanted his help to  

throw  it  away.  Shakeel  had  been  asked  by  his  employer  to  

accompany them. They had gone in a jeep to the Dahisar godown  

of  Noor  Khan.  There  was  some waste  material  in  black  colour  

which was filled into a sack by them.  Some bags were also kept  

alongwith the said black coloured waste material.   The sack had  

been  loaded  by  the  watchman  into  the  vehicle,  and  Shakeel,  

alongwith  Noor  Khan  (A-50)  had  proceeded  from  there.  After  

driving for about 10 Kms., their vehicle had been stopped upon the  

instructions of Noor Khan (A-50) near a bridge, and Shakeel had  

been asked to throw the sacks.  After  throwing the same off  the  

bridge, they had left the place. However, after driving for about 1  

Km., Noor Khan (A-50) had asked Shakeel where he had thrown  

the sacks. He was then informed, that the same had been thrown  

near the water. Noor Khan (A-50) had then instructed him to take  

the vehicle back, and after reaching the bridge Noor Khan (A-50)  

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had himself gotten off from the vehicle and had gone under the  

bridge, lifted the sack, and thrown the same into the water.   

Noor  Khan  (A-50)  had  gone  with  Shakeel  in  the  said  

vehicle, to his residence at Mira Road. After their arrest, Shakeel  

was the only person who had known that the material thrown by  

him actually consisted of explosives.    

161. Confessional statement of Munna @ Mohammad Ali @  Manoj Kumar Bhanwar Lal (A-24):

He had been 26 years of age at the time of the said incident,  

and has confessed that he had started a hawala business with Eijaz  

Pathan,  who  lived  in  Dubai  and  that  he  also  had  a  house  in  

Bombay. Munna (A-24) had developed a close acquaintance with  

Eijaz Pathan, who belonged to the Kareem Lala Group, and had  

thus succeeded in committing the murder of Majeed in 1986, and  

had thereafter, remained absconding for a long time. Subsequently,  

he (A-24) had been arrested and enlarged on bail. There had been  

an attempt to kill him, after he was released on bail. He (A-24) had  

been introduced to Tiger Memon (AA) in 1987, while participating  

in the unloading of silver at Shekhadi, Shrivardhan.  His confession  

has further revealed that contraband had in fact, been brought into  

India by Tiger Memon. He had also been  instructed by Eijaz from  

Dubai, to not tell anybody about the smuggling.  

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In the 3rd week of March, 1993 while he had been staying in  

Marol,  Noor Khan (A-50) and Mohammad Jindran had come to  

meet him and had said that some packets of RDX were lying in the  

godown and that the same had to be destroyed.  Rashid had told  

him that for removing the said packets, he had taken a sum of  Rs.5  

lakhs. Rashid had taken him the next day to the Ghodbunder hotel  

and there he had met Noor Khan (A-50) and Mohammad Jindran,  

who had already reached there. They had arranged for a dumper  

from the Sarpanch of the village Anand Dighe.  The material had  

then been loaded therein, and had been thrown into the sea.  He had  

thrown about 55 packets of RDX into Nagla Bandar. Rashid had  

given him a sum of Rs.10,000/-.  He had subsequently reached the  

Dawat  hotel,  to  receive a  sum of  Rs.20,000/-  from Noor  Khan.  

However, he had been arrested by the police here.  

162. Deposition of Fazal Akbar Khan (PW-468):

He had known Rashid and Noor Khan (A-50) for the past 15  

years. He had been introduced to Munna (A-24), by Rashid in the  

third week of March, 1993. Noor Khan (A-50) had come to his  

residence, and had asked him to take him to Rashid.   They had  

gone to the residence of Rashid at Dreamland Society. Noor Khan  

(A-50) had told Rashid that somebody had kept some chemicals or  

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something at his place in Dahisar, and that he wanted his help to  

destroy  the  same.  The  witness,  Rashid  and  Noor  Khan  had  

travelled in the car  of  Noor Khan,  to the said place at  Dahisar.  

Here, they had seen 50-60 gunny bags lying in the shed. Rashid  

had opened one of the gunny bags, and had found that the same  

contained  a  black  coloured  powder.   They  had  then  moved  to  

Ghodbunder  with one such packet.  After  reaching there,  Rashid  

had  examined  the  packet,  they  had  collected  from  Dahisar.  

However, Rashid had been unable to determine what it was. They  

had thus returned to the place of Rashid.  Then, Noor Khan had  

asked Rashid to help him to dispose of the said material. Rashid  

had asked Noor Khan to come to him the next day.  All of them  

had then left the said place. The witness was called by Rashid the  

next day, to his residence at 10.30 a.m.  Noor Khan had also been  

present there.  One other person had also been present there, who  

was introduced to the witness as Mohammad Jindran. They talked  

about the disposal of the said material, and subsequently left the  

said place, asking Rashid to meet at Ghodbunder the next day in  

the morning. Munna (A-24) was also present  there. The witness  

had stayed in the house of Rashid. He had gone alongwith Rashid  

and Munna to Ghodbunder and had found Noor Khan (A-50) and  

Mohammad Jindran there. Noor Khan (A-50) had given a packet  

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containing  some  money  to  Rashid.  Noor  Khan  (A-50)  and  

Mohammad  Jindran  had  stayed  in  a  room  of  the  hotel,  while  

Rashid and Munna had left the said room.  

After  10-15  days,  Rashid  had  called  the  witness  from  

Behrin, and had said that the sacks which had been disposed of  

contained RDX, and that the witness must not disclose this fact to  

anybody,  or  else  he  would  be  killed,  alongwith  all  his  family  

members. The witness had then become very scared, owing to the  

threat that had given to him. The witness has also identified Noor  

Khan (A-50) in court.     

163. Deposition of Upendra G. Patel (PW-33):

He is a recovery witness. He has deposed that in all, a total  

of three bags had been seized on 18.4.1993. Two bags had been  

empty. The third bag had contained some black pieces, of which  

one piece had been taken out and separately packed. At the said  

time, only one piece had thus been taken out of the bag. The same  

was weighed and packed in plastic wrap, after which, it was also  

wrapped in a piece of paper, in the form of a paper bag. The said  

paper  bag  had  been  picked  up  from a  nearby  place,  under  the  

bridge. His (PW-33) signature had not been on the paper bag in  

which the black substance had been  kept. The paper bag had not  

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been sealed. In court, he had been unable  to say whether the paper  

in which the blackish lump was wrapped, was the same paper bag  

in which it had been kept, when the sample had initially drawn at  

the time of seizure of the goods by the Police.  

164. Deposition of Wilson John Britto (PW-274):

He  has  deposed  that  he  knew  Rashid  because  on  one  

occasion, he had gone to his hotel for a meal. On 23.3.1993, Rashid  

asked for a room.  He had spoken to the senior steward, Ajit Roop  

Singh from his hotel.  He had then telephoned the Juhu Office and  

had  talked  with  his  boss  Shri  Sunil  Naik.   The  witness  had  

informed Nayak over the phone that one Rashid had come to the  

said hotel and that he had requested a room. After asking his  boss,  

he  and  Ajit  Roop  Singh had  given  Room No.  1-A to  Rashid.  

Rashid had paid Rs.300/- to the witness, as a  tip.   

He had not heard any conversation that had ensued between  

Rashid and his companions during the period in which, they were  

at the hotel.    He knew the names of the three companions of the  

Rashid.  This  witness  could  not  identify  the  appellant  (A-50)  in  

court (after a period of 5 years).   

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165. Deposition of  Prakash Dhanaji Khanvilkar  (PW.513):

During the said interrogation of the appellant (A-50), he had  

expressed his desire to make a voluntary statement. The witness  

had thus secured two panch witnesses, and it was in their presence  

that the appellant (A-50) had made a disclosure statement in Hindi.  

The  same  had  been  recorded  after  drawing  the  memorandum  

panchanama. As the appellant (A-50) had expressed his willingness  

to take him to a place for recovery, the witness had also decided to  

accompany  the  appellant  (A-50)  to  the  particular  place,  that  he  

wished  to  point  out.  Thus,  he  had  gone  alongwith  the  panch  

witnesses, police officials and the appellant, in a police jeep.  

In his cross-examination, he has made it  clear that on the  

said day, he had reached the detection room at 1.00 p.m. and that  

the appellant (A-50) had been with him from 1.00 p.m. to 6.15 p.m.  

The panch witnesses had been called at about 3.50 p.m. He has  

expressed his ignorance as regards whether on the said day, some  

Judge had come and conducted remand proceedings at the Mahim  

Police Station between 1.00 p.m. and 3.15 p.m. His deposition has  

further  revealed  that  he  had  left  the  police  station  with  the  

appellant, and other persons at about 4.15 p.m. and had returned to  

the Mahim Police Station alongwith his team, the accused and the  

panch witnesses at about 7.15 p.m.  The bridge on the Kaman river  

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from where the recovery was made, was at a distance of about 35-

40  Kms.  from  the  Mahim  Police  Station.  He  has  denied  the  

suggestion  that  the  appellant  (A-50)  had  not  in  fact  made  any  

disclosure statement when he had been taken to the bridge on the  

Kaman river etc.  

166. Deposition of Ajit Pratap Singh (PW.291):

He  was  26  years  of  age  and  had  been  carrying  on  the  

business of painting houses. At the relevant time, in the year 1993,  

he had been working as a waiter in a farm house named, “Royal  

Retreat”  which was situated at  Kaju Pada on Ghodbunder road,  

district Thane. One Shri Kailash Jain, alongwith others had owned  

the said farm house. Alongwith him, one Shri Wilson Britto (PW-

274) had been working there as an assistant.  He had worked in the  

hotel upto 1994.  He had known a person by the name of Rashid,  

son of Lala Seth, who had been carrying on the business of dealing  

in chemicals near the said farm house.  Rashid had been coming to  

the said hotel alongwith his friends and family members, for meals  

and also to swim. On 23.3.1993, at about 1.30 p.m. while he had  

been present at the said hotel, Rashid had come there alongwith 3-4  

friends in a car, and had asked the witness to open room No. 1-A  

for them, and thus, he had opened the said room. Rashid had stayed  

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in the said room alongwith his friends,  and he had served them  

lunch. While serving them, he had heard Rashid telling the others  

that the goods which had been kept in the godown of the appellant  

(A-50), were to be thrown at the earliest into the Nagla creek, by  

taking the same in the vehicle of Anya Patil, as an investigation by  

the police was in progress.  Rashid had noticed the presence of the  

witness, and had immediately asked him to leave the room and to  

close  the  door.  In  court,  the  witness  expressed  his  inability  to  

identify any of these friends, who had been present on that day in  

the hotel, except Rashid and Munna (A-24) as the deposition had  

taken place after a period of five years.  

167. Deposition of Dattatray Maruti Wayal (PW.521):

He was one of the investigating officers of the case who had  

taken up the investigation on 5.5.1993 of C.R. No. 14/93 in the  

Kapurbawdi  Police  Station.  He  has  deposed  that  during  the  

investigation, he had recorded the statement of about 35 witnesses,  

including one Shri Narayan Sitaram Patil (PW-295). He had also  

come to know, that  the land from where the recovery had been  

made, had been purchased by the appellant (A-50) in the past, and  

that  he had allowed the construction of  a godown therein.   The  

appellant (A-50) had been keeping goats in the said godown, and  

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for such purpose, he had kept a Gorkha watchman named Pratap  

Singh to look after the said goats.  The appellant would visit  the  

said godown.  

168. Deposition of Kailas Baburao Dawkhar (PW.518):

He is a formal witness and he has recorded the statements of  

Wilson  John  Britto  (PW-274)  and Ajitsingh  Pratap  Singh (PW-

291), who had been working as waiters in the  resort where the  

meeting of  accused persons had taken place,  in connection with  

disposing of the explosive material by dumping the same into the  

Nagla creek.  Thus, he has proved the statement of the witnesses  

that have been recorded.  

169. The  evidence  referred  to  hereinabove,  regarding  the  

ownership  and  possession  of  the  godown,  the  dumping  of  the  

contraband in the said godown, and the removal and final disposal  

of  the  same  by  throwing  it  into  the  Nagla  creek,  stands  fully  

corroborated by the evidence of  the aforesaid witnesses. The said  

contraband  had  been  destroyed  in  two  installments;  one  at  the  

Nagla creek, and another at the bridge on the Kaman river.  The  

evidence of the witnesses corroborates the case of the prosecution  

in entirety. Thus, the case stands proved.  

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170. We do not find any force in the submissions made by Mr.  

Sinha, learned counsel appearing for the appellant, to the effect that  

as the recovery memo did not contain signature of the appellant,  

the  same  cannot  be  relied  upon,  even  though,  to  fortify  such  

submission, he has placed very heavy reliance upon the judgment  

of this Court in Jackaran Singh  v. State of Punjab, AIR 1995 SC  

2345, wherein it has been held that the absence of signatures or  

thumb impressions of the accused upon their disclosure statements,  

may render the said statements unreliable, particularly, in a case  

where the panch witness has not been examined at a trial, to testify  

the authenticity of the same.   The judgment relied upon by Shri  

Sinha  is  easily  distinguishable,  as  in  the  said  case  none  of  the  

panch witnesses had been examined, while in the instant case, the  

panch witness has been examined.  

171. In State of Rajasthan v. Teja Ram & Ors., AIR 1999 SC  

1776, this Court while dealing with the issue held:  

“The  resultant  position  is  that  the   Investigating Officer is not obliged to obtain   the signature of an accused in any statement   attributed  to  him  while  preparing  seizure   memo for the recovery of any article covered   by Section 27 of the Evidence Act. But, if any   signature  has  been  obtained  by  an  investigating officer,  there is nothing wrong   or illegal about it. Hence, we cannot find any   force in the contention of the learned counsel   

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for  the  accused  that  the  signatures  of  the   accused  in  Exs.  P-3  and P-4  seizure  memo  would vitiate the evidence regarding recovery   of the axes.

172. After  appreciating  the  evidence  on  record,  the  learned  

Designated  Court  came to the conclusion that  the appellant  had  

been in the unauthorised possession of 58 bags of RDX material  

within the notified area, and that he had indulged, alongwith the  

other  co-accused  conspirators,  in  the  disposal  of  the  said  RDX  

material by dumping the same into the Nagla creek and the Kaman  

river.   However,  the Designated  Court  has further  held,  that  no  

nexus could be established between the appellant (A-50) and  Tiger  

Memon (AA). Additionally, the Designated Court has stated that  

there was also no nexus found between the offences committed in  

pursuance of the conspiracy as was hatched by Tiger Memon (AA),  

and the acts of the appellant (A-50).

173. This  conclusion  stands  fortified  from  the  confessional  

statement of the appellant, as well as from the statements of the  

other  witnesses.  The  appellant  was  most  certainly  had  close  

association with Mohammad Jindran (AA), Rashid and with a few  

other accused persons. The appellant had spent about Rs.5 lakhs  

for the disposal of the said material. Rashid, a very close associate  

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of  Tiger Memon (AA) had also been involved in the process of  

such  disposal.   The  remnants  of  the  RDX were  taken from his  

godown, and thrown into the Kaman river. Being in possession of  

the said material for a limited time period, renders him guilty for  

commission of  the offence under  Section 5 TADA.  He is  also  

guilty under Section 201 IPC,  as  even though he may not have  

been directly involved in the disposal of  the contraband, the same  

was disposed of upon his instructions, and for this, he had paid a  

huge amount. The said material had been brought into  India at the  

Shekhadi landing by Tiger Memon (AA), and had been stored in  

his godown at Kashimira. Therefore, we see no reason to interfere  

with the order passed by the learned Special judge, and the appeal  

is accordingly, dismissed.

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CRIMINAL APPEAL NO. 919  OF 2008

Mulchand Sampatraj Shah                      …Appellant

Versus

The State of Maharashtra                                      … Respondent                      

174. This  appeal  has  been  preferred  against  the  judgment  and  

order  of  conviction  and  sentence  dated  6.6.2007  passed  by  a  

Special Judge of the Designated Court under the TADA in Bombay  

Blast  Case  No.  1  of  1993,   by  which  the  appellant  had  been  

convicted under Section 3(3) of  Terrorist and Disruptive Activities  

(Prevention)  Act,  1987 (hereinafter  referred  to  as  ‘TADA’)  and  

awarded  sentence  of  5  years  R.I.  and  fine  of  Rs.5  lakhs  with  

suitable additional sentence of rigorous imprisonment in default of  

payment of fine.  

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

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

was  charged  under  Section  3(3)  TADA  for  facilitating  and  

mobilising funds for the absconded accused Mushaq @ Ibrahim @  

Tiger  Memon Abdul  Razak Memon (AA) and his  associates  by  

allowing  him  to  operate  his  hawala  account  in  the  code  name  

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HATHI,  and  rendering  financial  assistance  to  him  and  his  

associates  which  greatly  facilitated  funding  of  their  various  

operations in the commission of various acts i.e. serial bomb blasts.  

B. After conclusion of the trial, the learned Designated Court  

convicted the appellant as referred to herein above.

Hence, this appeal.  

176. Shri Mukul Rohatgi, Learned Senior Counsel appearing for  

the  appellant,  has  submitted  that  the  appellant  stood  convicted  

under Section 3(3) TADA for facilitation by providing financial  

assistance  to  the  co-accused  Tiger  Memon  (AA)  in  various  

activities. There is no evidence on record that the appellant had any  

knowledge  that  Tiger  Memon  had  been  indulging  in  terrorist  

activities. The Bombay blast took place on 12.3.1993 and a case  

under TADA had been registered against Tiger Memon and others  

only after the said incident. The appellant never came to know, nor  

had any material been placed before the Special Court in the instant  

case to show that Tiger Memon or any other co-accused in this  

case indulged in terrorist activities. Even in case the illegal banking  

business and dealing with money of smugglers and other type of  

criminals is admitted, the question does arise as to whether in such  

a fact-situation, the appellant could have been charged/convicted  

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under Section 3(3) TADA.  There is nothing in the confessional  

statement of the appellant that he had any knowledge that Tiger  

Memon indulged in any terrorist  activity.  It  is  evident  from the  

record that  the appellant  was involved in acts  subsequent to the  

date of commission of the blasts i.e. 12.3.93.

177.         Shri Mukul Gupta, learned senior counsel arguing for the  

CBI has vehemently opposed the appeal and has  submitted that the  

appellant (A-97) had been rendering financial assistance to Tiger  

Memon (AA), who was the kingpin of the entire episode which  

lead to not only the death of numerous innocent people, but also  

caused the destruction of moveable and immoveable property. The  

evidence on record makes it abundantly clear that the appellant (A-

97)  had  been  handling  the  financial  accounts  of  Tiger  Memon  

(AA).  This  amounts  to  financial  assistance  as  per  Section  3(3)  

TADA. Therefore, he abetted the terrorist activities undertaken by  

Tiger Memon (AA). Thus, the appeal deserves to be rejected.

178. We have considered rival submissions made by the learned  

counsel for the parties and perused the records.  

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179. Evidence against the appellant:

(a) Confessional statement of the appellant Mulchand Sampatraj  Shah @ Chokshi (A-97)

(b) Confessional  statement  of  Raju  Laxmichand  Jain  @Raju  Kodi (A-26)

(c) Confessional statement of Abdul Gani Ismail Turk (A-11)  

(d) Confessional  statement  of  Mohmed  Rafiq  Mianwala  @  Rafiq Madi (A-46)

(e) Confessional statement of Asgar Yusuf Mukadam (A-10)

180. Confession of the appellant Mulchand Sampatraj Shah  @ Chokshi (A-97):  

From the confessional  statement  it  has been revealed  that  

the appellant was doing the business of bank draft discounting in  

the name and style of `Chokshi’ wherein the appellant used to take  

amount from the public,  and to return the same in instalments.  At  

the time of returning the money he used to deduct the commission  

and, thus, he had been doing illegal banking business.  He came in  

contact with Raju Laxmichand Jain @ Raju Kodi (A-26), who had  

the business in the market. The appellant also became acquainted  

with Mohammed Dossa and Tiger Memon (AA). He started the  

business of money taking and giving with both of them. He had  

some dispute in money transaction with them because of which he  

was beaten by them and the matter was settled after paying a sum  

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of  Rs.5  lakhs to  them.  The appellant  was  arrested  in  1989 for  

violating the provisions of Foreign Exchange and Regulation Act,  

1973  (hereinafter  referred  to  as  `FERA’).   His  house  was  also  

raided by the Customs Department in 1989, and since they found  

some illegal  accounts,  he was also arrested.   The appellant  was  

again  arrested  in  1991  by  the  Central  Bureau  of  Investigation  

(hereinafter referred to as  `CBI’) in connection with the hawala  

business  with  one  Mr.  Shambu  Dayal  who  was  doing  hawala  

business between  Bombay and Delhi, and he had furnished some  

information about the appellant to the department. He was arrested  

and remained in jail for 7 months. Subsequently, he was enlarged  

on bail.   

In the month of September, 1992 Tiger Memon (AA) told  

him on telephone that he was sending a huge amount of money  

through one Farid and the appellant would  accept it and hand it  

over to Keshav Dalpat on getting the receipt.  He received a sum of  

Rs.25  lakhs  and  the  said  amount  was  paid  by  the  appellant  to  

Keshav  Dalpat.   The  said  Keshav  Dalpat  was  brought  by  Raju  

Kodi (A-26).  After 10 days,  Tiger Memon deposited a sum of  

Rs.21 lakhs with the appellant, which was to be given to Namji  

Dhagwan.  In the last week of October 1992, Tiger Memon opened  

an account with the appellant in the name of HATHI.  Raju Kodi  

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(A-26) had deposited amounts varying from Rs. 5 lakhs to Rs. 1.89  

Crores  in  the  said  account  in  November-December  of  1992.  

Immediately,  after  recording  the  confessional  statement  of  the  

appellant,  his  office  was  searched  and  various  documents  were  

seized dealing with the HATHI account. Various transactions were  

recorded totaling almost Rs. 1.9 Crores.

181. Confessional statement of Raju Kodi (A-26):

Raju Kodi (A-26) in his confessional statement admitted to  

his  acquaintance  with  Mushtaq  Abdul  Razak  Memon  @  Tiger  

Memon (AA).  In November 1992, as per the instructions of Tiger,  

A-26  deposited  the  various  amounts  in  the  HATHI  account  of  

Tiger maintained by the appellant  (A-97) as Hawala transactions.  

The amounts varied from Rs.  16 Lakhs to  Rs.  50 Lakhs in  the  

month  of  November,  1992  and  thus,  the  total  amounted  to  

Rs.181.48 lakh, in the HATHI account of Tiger.

182.    Confessional statement of Abdul Gani Ismail Turk(A-11):

Abdul Gani Ismail Turk (A-11) in his confessional statement  

stated that he used to bring and deliver Hawala money, for which  

he was paid Rs. 5,000.   So, he corroborated the prosecution case  

only to the extent that Tiger Memon (AA) had indulged in Hawala  

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transactions.   A-11 knew the  persons,  namely,   Asgar,  Imtiyaz,  

Rafiq Madi, Salim, Mustaq, Hanif etc.  

183. Confessional  statement  of  Mohmed  Rafiq  Musa  Mianwala @ Rafiq Madi (A-46):

In his confessional statement A-46 has stated that A-97 had  

been a very close associate of Tiger Memon (AA) and in the month  

of February 1993, he went to Chokshi (A-19) at Javeri Bazar, and  

brought Rs. 4 lakhs from the appellant and gave this sum to Yakub  

at his office.   

184.   Confessional statement of Asgar Yusuf Mukadam (A-10):

In his confessional statement he has stated that Tiger used to  

deposit hawala money in the HATHI account with Chokshi (A-97)  

and  he  would  withdraw  some  amount  of  money  as  and  when  

required. Tiger had further told him at the time of his departure  

that if Yakub required money, it was to be given from the same  

account. On 9.2.1993, Yakub asked him to transfer Rs. 25 Lakhs to  

Irani’s account, and Rs. 10 Lakhs to Ohalia’s account which was  

accordingly done by the accused (A-10).

185. The  confession  made  by  the  appellant  (A-97)  stood  

corroborated  by  the  confessional  statements  of  accused  Asgar  

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Yusuf Mukadam (A-10),  Raju Laxmichand Jain @ Raju Kodi (A-

26) and Mohmad Rafiq Miyariwala (A-46) to the extent that the  

appellant was doing the hawala business, and had been receiving  

the money of various persons including Tiger Memon (AA).  

186.     Legal provisions involved in the case are :

I. Section 3(3) TADA reads as under:   

“(3) Whoever conspires or attempts to commit, or  advocates, abets,  advises or incites or  knowingly  facilitates the commission of, a terrorist act or  any  act  preparatory  to  a  terrorist  act,  shall  be  punishable  with  imprisonment  for  a  term  which  shall  not  be less  than five years  but  which may  extend to imprisonment for  life and shall also be  liable to fine.”   (Emphasis added)

II. Section  2(1)(a)(iii)  TADA  defines  the  abetment  which  

involved:

“(iii)  the  rendering  of  any  assistance,  whether  financial  or  otherwise,  to  terrorists  or  disruptionists.”

III. Section  21(2)  TADA  provides  for  a  presumption  which  

reads as under:  

“ (2)  In a prosecution for  an offence under sub- section  (3)  of  Section  3,  if  it  is  proved that  the  accused  rendered  any  financial  assistance  to  a  person  accused of,  or reasonably suspected of,  an offence under that section, the Designated Court  shall presume, unless the contrary is proved, that  such person has committed the offence under that  sub-section.”  (Emphasis added)

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IV. Abetment  and  harbouring  of  offenders  is  also  an  offence  

under  TADA  and  various  other  statutes  like  NDPS  Act,  1985,  

POTA, 2002 and MCOCA, 1999.   

187. All these statutes also provide that raising funds for terrorist  

organisations  is  illegal  and  such  activities  are  punishable.  

However, the general principle is that a person so involved must be  

found  rendering  financial  assistance  to  the  accused  of  

terrorist/disruptive activities, or could be reasonably suspected in  

indulging in such activities.  Hawala business is done only on the  

basis  of  commission  by  exchanging  money  among persons  and  

receiving commission.  The appellant (A-97) had been working as  

a  carrier  or  agent,  between  the  persons  indulging  in  money  

transactions  in  India  or  abroad,  without  having  any  knowledge  

whatsoever, that Tiger Memon or his associates or any other co-

accused were indulging in terrorist activities.  In the instant case,  

there  is  nothing  on  record  to  show  that  the  appellant  (A

-97)  indulged in  such activities  though he might  be involved in  

other illegal activities.  

188. The learned Designated Court recorded the finding as under:

“Thus considering the nature of gravity of   act committed by A-97 it will be difficult to accept   

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the  submission  that  the  highest  punishment  as   prescribed for the offence should be awarded to   him…….. It can be further added that no evidence   has  surfaced  denoting  A-97  having  assisted,   abetted in any manner any other act or offences   committed by Tiger Memon.”  

189. In Kalpnath Rai v. State (supra), this Court held:  

“If Section 3(4) is understood as imposing harsh   punishment  on  a  person  who  gives  shelter  to  a   terrorist without knowing that he was a terrorist,   such an understanding would lead to calamitous   consequences.  Many  an  innocent  person,   habituated  to  offer  hospitality  to  friends  and   relatives  or  disposed  to  zeal  of  charity,  giving   accommodation  and  shelter  to  others  without   knowing  that  their  guests  were  involved  in   terrorist  acts,  would  then  be  exposed  to   incarceration for a long period.”

190. Similarly  in  Kartar  Singh v.  State  of  Punjab,  (1994)  3  

SCC 569, this Court held:

“133. Therefore, in order to remove the anomaly   in the vague and imprecise definition of the word,   ‘abet’, we for the above mentioned reasons, are of   the  view  that  the  person  who  is  indicted  of   communicating or associating with any person or   class of persons who is engaged in assisting in any   manner  terrorists  or  disruptionists  should  be   shown to have actual knowledge or to have reason   to believe that the person or class of persons with   whom  he  is  charged  to  have  communicated  or   associated is engaged in assisting in any manner   the terrorists and disruptionists.

134. To encapsulate, for the discussion above, the   expressions  ‘communication’  and  ‘association’   

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deployed in the definition should be qualified so as   to  save  the  definition,  in  the  sense  that  “actual   knowledge or reason to believe” on the part of a   person to be roped in with the aid of that definition   should be read into it instead of reading it down   and clause (i) of the definition 2(1)(a) should be   read  as  meaning  “the  communication  or   association  with  any  person  or  class  of  persons   with  the  actual  knowledge  or  having  reason  to   believe  that  such  person  or  class  of  persons  is   engaged in assisting in any manner terrorists or   disruptionists” so that the object and purpose of   that  clause  may  not  otherwise  be  defeated  and  frustrated.

Section 3 of Special Courts Act, 1984  

135. Challenging the validity of Section 3 of Act of   1984, it has been contended that the power vested   under Section 3(1) on the Central Government to   declare  by  notification  any  area  as  “terrorist   affected  area”,  and  constitute  such  area  into  a   single judicial zone or into as many judicial zones   as  it  may  deem  fit,  is  not  only  vague  but  also   without any guidance. 136. The  prerequisite  conditions  which  are  sine   qua  non  for  declaring  any  area  as  “terrorists   affected  area”  by  the  Central  Government  by   virtue  of  the  authority  conferred  on  it  under   Section 3(1) of the Act of 1984 are: (1)  The offences of  the nature committed in any   area to be declared as “terrorists affected area”   should be one or more specified in the Schedule;  (2)  The  offences  being  committed  by  terrorists   should satisfy  the definition of  the nature  of  the   offence  mentioned  in  Section  2(1)(h),  namely,   indulging  in  wanton  killing  of  persons  or  in   violence or in the disruption of services or means   of communications essential to the community or   in damaging property with a view to commit any of   the offences enumerated under any of the clauses   

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(i)  to  (iv)  indicated  under  the  definition  of  the   word ‘terrorist’; (3) The scheduled offences committed by terrorists   should be on such a scale and in such a manner   that it is expedient for the purpose of coping with   the activities of such terrorists to have recourse to   the provisions of this Act.” 137. Unless all the above three conditions are fully   satisfied,  the  Central  Government  cannot  invoke   the power under Section 3(1) to declare any area   as “terrorist affected area”. In other words, in the   absence  of  any  of  the  conditions,  Section  3(1)   cannot be invoked. Therefore, the contention that   Section  3(1)  suffers  from  vagueness  and  lacks   guidance is unmerited.”

191. In view of the above, the law requires that an accused under  

TADA  must  abate  knowingly  the  commission  of  terrorist  act  

and/or  he  must  be  rendering  financial  assistance  to  such  an  

accused, or could be reasonably suspected of being such accused.  

Therefore, the question does arise as to whether the appellant had  

any reason to believe that Tiger Memon and his associates were  

accused of any terrorist act, or could be reasonably suspected to be  

such accused.

192 Immediately  after  the  arrest  of  appellant  (A-97),  he  

apprehended  that  he  would  be  forced  to  make  a  confession.  

Therefore,  a  large  number  of  letters  had been sent  to  Mr.  V.B.  

Lokhande, DCP, which he had received prior to recording of the  

confessional  statement.  This  is  evident  from  the  letter  dated  

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16.5.1993 written by the counsel of the appellant requesting V.B.  

Lokhande  not  to  record  his  confessional  statement  because  the  

appellant did not want to make any such statement.

 193. In the cross-examination of Shri V.B. Lokhande, DCP (PW-

183)  admitted  that  he  had  received  letters  and  telegraphs  

particularly  in  reply  to  question  nos.  123,  124.  Further,  while  

replying to question no. 125 he stated that he had not made any  

attempt  to  ask  the  appellant  before  recording  his  confessional  

statement  whether  he  (A-97)  wanted  to  make  a  confessional  

statement.  

194. It is further submitted that confessional statement had been  

obtained by coercion i.e.  beating the appellant.   There is  ample  

evidence on record that he had a large number of injuries upon his  

body at the relevant time.  He made a complaint in writing to the  

court, and the court issued certain directions for his treatment and  

asked for the report. The confessional statement was recorded on  

18.5.1993. He was produced for the first time before the court on  

25.5.1993 when the complaint was lodged, and the injury report  

was given. The report gave the details of various injuries on his  

buttocks, wrist and lower leg.

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195. In this respect, the court passed certain orders which read as  

under:  

“25.5.1993 :  …Accused Mulchand Shah is not produced before  this  court  till  4  p.m.  as  the  CMC  on  duty  has  referred  the  accused  Mulchand  Shah  to  senior  doctor for second opinion….. 26.5.1993:  …..Accused Mulchand Shah produced before the  court, the police is seeking further custody of the  accused  for  the  purpose  of  investigation.    The  accused  has  produced  before  the  court  on  25.5.1993 and he  made a  grievance  that  he was  assaulted while in police custody. The accused was  sent  for  medical  report  from G.T.  Hospital  does  support his allegations.  ……Further police custody of the  accused would  have definitely help the investigating agency but,  the investigation agency having assaulted to third  degree method, it will not be safe to remand the  accused to their custody instead the investigating  agency can interrogate the accused in jail.. ….The accused is remanded to judicial custody till  22.6.1993.”  

196. In  this  respect,  a  large  number  of  documents  had  been  

placed on record to show that complete information regarding the  

torture had been placed before the court by the counsel. From the  

relevant part of the letter dated 20.5.1993 written by Shri Pervez  

M. Rustomkhan, Advocate, to Mr. Pharande, Inspector of Police  

(Worli), Crawford Market, Bombay, it is clear that not only had the  

appellant been beaten but his family members had also been beaten  

and  harassed.  Even  his  brother  Ramesh  Kumar,  a  handicapped  

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man,  had  not  been  spared.   These  incidents  took  place  on  

12.4.1993, 14.4.1993, 15.4.1993, 16.4.1993, 17.4.1993, 21.4.1993,  

22.4.1993, 5.5.1993 and 8.5.1993.  It was also mentioned in that  

letter that the appellant had falsely been implicated in the case and  

had been tortured and forced to sign some writings under duress  

and pressure from the police authorities which may be used against  

him.  

197. In  Sahib Singh v. State of Haryana, (1997) 7 SCC 231,  

this Court held that `Confession’ means:  

“39. The Evidence  Act  contains  a separate  part   dealing  with  “Admission”.  This  part  comprises   Sections 17 to 31. “Confession” which is known as   a species of “Admission” is to be found contained   in Sections 24 to 30.

41. In  view of  these  decisions,  it  is  now certain   that  a  “confession”  must  either  be  an  express   acknowledgement of guilt of the offence charged,   certain  and  complete  in  itself,  or  it  must  admit   substantially  all  the  facts  which  constitute  the   offence. 42. Section  24  provides,  though  in  the  negative   form, that “confession” can be treated as relevant   against the person making the confession unless it   appears to the court that it is rendered irrelevant   on account of any of the factors, namely, threat,   inducements,  promises  etc.  mentioned  therein.   Whether  the  “confession”  attracts  the  frown  of   Section 24 has to be considered from the point of   view  of  the  confessing  accused  as  to  how  the   inducement,  threat  or  promise  from a person  in   authority would operate in his mind. (See: Satbir   

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Singh v. State of Punjab, (1977) 2 SCC 302.) The   “confession” has to be affirmatively proved to be   free and voluntary. (See: Hem Raj Devilal v. State   of Ajmer, (1977) 2 SCC 263) Before a conviction   can be based on “confession”, it has to be shown   that it was truthful.

46. The Act, like the Evidence Act, does not define   “confession”  and,  therefore,  the  principles   enunciated  by  this  Court  with  regard  to  the   meaning of “confession” under the Evidence Act   shall also apply to a “confession” made under this   Act. Under this Act also, “confession” has either   to be an express acknowledgement of guilt of the   offence charged or it must admit substantially all   the facts which constitute the offence. Conviction   on “confession” is based on the maxim “habemus   optimum testem, confitentem reum” which means   that confession of an accused is the best evidence   against him. The rationale behind this rule is that   an ordinary,  normal  and sane person would not   make  a  statement  which  would  incriminate  him  unless  urged  by  the  promptings  of  truth  and   conscience.

52. The  confessional  statement  does  not  admit   even  substantially  the  basic  facts  of  the   prosecution story, inasmuch as in the confessional   statement,  no  role  is  assigned  to  the  appellant   while in the prosecution story an active role has   been assigned to him by showing that he too was   armed with a gun and had gone to the spot and   participated  in  the  commission  of  the  crime  by   firing his gun specially at the injured witness. The   confessional statement is not truthful and is part of   the hallucination with which the prosecution and   its  witnesses  were  suffering.  It  is  accordingly   discarded and cannot be acted upon.”

198. The  only  question  is,  whether  the  provisions  of  Section  

21(2)  provides  that  in  a  prosecution  for  an  offence  under  sub-

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section (3) of Section 3, if it is proved that the accused rendered  

any  financial  assistance  to  a  person  accused  of,  or  reasonably  

suspected of, an offence under that section, the Designated Court  

shall presume unless the contrary is proved, that such person has  

committed the offence under that sub-section.  Thus, the provision  

of Section 21(2) can be resorted to, only in case it is proved by the  

prosecution that the accused rendered any financial assistance to a  

person  who  has  already  been  facing  the  charge  of  terrorist  or  

disruptive activities or he had reasons to suspect that the person to  

whom  financial  help  has  been  rendered  was  indulging  in  such  

activities.  Thus, there is a burden on the prosecution first to prove  

the aforesaid condition.  In case, it is successfully proved that the  

person  who  render  financial  assistance  to  a  person  accused  of  

terrorist/disruptive  activities  or  suspect  to  be  indulging  in  such  

activities, only then the presumption can be drawn.   

In such a situation,  it  is  not  possible  for  us to accept the  

submission of Mr. Mukul Gupta, learned senior counsel appearing  

for  the respondent,  that  even if  a  person has  rendered financial  

assistance  prior  to  or  during  a  part  proceeding,  to  the  parties  

indulged in such activities, the provision of Section 21(2) would be  

attracted.   On  a  literal  interpretation  of  the  provision  such  a  

construction is not permissible.  There is nothing on record to show  

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that  during  the  time  the  appellant  facilitated  the  financial  

transaction of Tiger Memon in the fake account named `HATHI’  

and  that  he  had  reason  to  suspect  that  Tiger  Memon  or  his  

associates  were  indulging  in  disruptive  activities,  or  had  been  

accused in such activities.  The appellant may be guilty of running  

and indulging in fraudulent banking activities, or may be violating  

of  provisions  of  other  statutes  but  cannot  be  held  guilty  of  the  

offences under Section 3(3) TADA.   

199. In the instant case, there is nothing on record to show that  

any person could imagine what Tiger Memon (AA) was planning.  

In fact it was only after 12.3.1993, the date of Bombay blast, that  

the provisions of TADA could be attracted as far as Tiger Memon  

(AA) is concerned. Thus, he (A-97) cannot be held to be guilty  

under the said provisions.  There is nothing on record on the basis  

of  which  an  inference  can  be  drawn,  that  the  appellant  (A-97)  

could  reasonably  suspect  indulgence  of  Tiger  Memon  (AA)  in  

terrorist or disruptive activities.   

200. Section  2(1)(a)(iii)  TADA  provides  that  abet,  with  its  

variations  and  cognate  expressions,  includes  rendering  of  any  

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assistance  whether  financial  of  otherwise,  to  terrorists  or  

disruptionists.  

201.    The  learned  Designated  Court  after  appreciating  all  the  

evidence  on  record  came  to  the  conclusion  that  the  phrase  

`financial assistance’ should not be given a restricted meaning, to  

include only assistance given by the concerned accused from his  

own money. The learned court went on to state that even allowing  

a terrorist to circulate his money should come within the ambit of  

that  phrase,  through  an  illegal  account  as  maintained  for  Tiger  

Memon (AA) by Sampatraj (A-97).  

202.   In the case at hand, as it cannot be held even by stretch of  

imagination that Tiger Memon (AA) and his associates had been  

accused of such activities prior to 12.3.1993, or could reasonably  

be suspected of being indulged in such activities, the provisions of  

TADA  are  not  attracted  so  far  as  the  appellant  is  concerned.  

Therefore, we cannot agree with the order passed by the learned  

Designated Court so far as the appellant (A-97) is concerned. The  

appeal is therefore, allowed.  The conviction and sentence awarded  

by the Designated Court are set aside. The appellant is on bail.  His  

bail bonds stand discharged.  

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CRIMINAL APPEAL NO.  1393  OF 2007

Ehsan Mohammad Tufel Qureshi                     …Appellant

Versus

State of Maharashtra                                     … Respondent                      

203. This  appeal  has  been  preferred  against  the  impugned  

judgment and order dated 29.5.2007, passed by a Special Judge of  

the Designated Court under the TADA for Bombay Blasts, Greater  

Bombay, in the Bombay Blast Case No. 1/1993. The appellant has  

been charged under various heads, including for the general charge  

of conspiracy.  The appellant has been convicted under Section 5  

TADA,  and  has  been  awarded  a  sentence  of  5  years  rigorous  

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

payment  of  fine,  to  suffer  further  R.I.  for  six  months,  and also  

under Sections 3 and 7 r/w Section 25(1-A)(1-B)(a) of the Arms  

Act. However, no separate sentence has been awarded separately  

for this offence.  

204 Facts and circumstances giving rise to this appeal are that :

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

(A-122) was charged as he had agreed to keep in his possession,  

one Mauser pistol and 16 live cartridges that had been given to him  

by Firoz @ Akram Amani Malik (A-39), and also that there had  

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been certain other acts that were committed by him in pursuance of  

the general charge of conspiracy.

B. After  conclusion  of  the  trial,  the  learned  Special  Judge  

convicted  the  appellant  and  sentenced  him  as  referred  to  

hereinabove.

Hence, this appeal.    

205. Shri  Mushtaq  Ahmad,  learned  counsel  appearing  for  the  

appellant has submitted that the appellant had been dragged in trial  

only being relative of  Fazal,  though he was not  involved in the  

offence. The arms and ammunition alleged to have been recovered  

from his possession might have been that of Fazal sister’s husband.  

He was sold the weapons by Firoz @ Akram Amani Malik (A-39),  

and he was  not aware of the fact that it was one of arms which had  

been smuggled into the country to commit terrorist acts. Thus, the  

appeal deserves to be allowed.  

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

appearing  for  the  State  has  submitted  that  he  was  found  in  

conscious possession of the arms and  ammunition in the notified  

area  and  therefore,  the  learned  Designated  Court  has  rightly  

convicted the appellant under the provisions of TADA. The appeal  

lacks merit and is liable to be dismissed.    

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207.     We have considered the  rival  submissions  made by the  

learned counsel for the parties and perused the records.

208. Evidence against the appellant (A-122):

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

(b) Deposition of Rohitkumar Ramsaran Chourisa (PW-39)

(c) Deposition of Prakash Dhanaji Khanvilkar (PW-513)

(d) Deposition of Vishnu Ravalu Shinde (PW-615)

209. Confessional Statement of Firoz @ Akram Amani Malik (A-39) :

His  confessional  statement  was  recorded  on  23.4.1993,  

wherein he has revealed his participation in the conspiracy, and his  

inclusion thereof, in the Bombay blast.  He has further stated that  

Zakir had given him 4 handgrenades, one pistol and 16 cartridges.  

He  had  kept  the  said  weapons  with  his  brother-in-law  (sister’s  

husband),  Fazal.  He  had  taken  back  the  pistol  from  Fazal  on  

29.3.1993, and had thereafter, sold the same to Ehsan – (A-122) for  

Rs. 15,000/-, but Ehsan had given him only Rs.5,000/-.  Ehsan had  

also been given the cartridges and had been showed how to use  

them.  After the arrest of the appellant, he had been interrogated on  

5.4.1993, and it was in the course of this, that he had expressed his  

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willingness to make a disclosure statement.  Therefore, two panch  

witnesses had been called, and in their presence, he had made his  

disclosure statement, wherein he has stated that he had given the  

appellant  (A-122),  one  pistol  and  16  cartridges.   The  said  

panchnama  was  duly  signed  by  the  investigating  officer,  the  

panchas and the accused (A-39) himself.  

210. Deposition of Rohitkumar Ramsaran Chourisa (PW-39):

The panch witness has deposed that he had been running a  

pan shop that was situated by the side of the Irani Restaurant which  

was located within the Cadell Court building, situated on Cadell  

Road, Mahim.  One police constable had approached him and had  

asked him to accompany him to the Mahim Police Station, as he  

had been called by the station incharge.  The constable had stated  

that he could not disclose the reason/purpose for which he had been  

called  there,  and  had  only  told  him  that  the  Inspector  would  

explain the same to him.  His friend Ramesh Govalkar had also  

accompanied  him.   They  had  then  gone  to  the  Mahim  Police  

Station with the constable.  They had been taken to the Detection  

Room,  and  upon  reaching  the  same,  he  had  found  therein,  7/8  

police constables, alongwith one other person who was sitting on a  

chair.   Two persons had also been standing by his side in civilian  

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clothes.  He  had  been  introduced  by  the  police  constable  to  the  

inspector  i.e.  to  P.I.  Hadap  and  A.P.I.  Khanvilkar.  The  police  

officers had informed him that the person who was sitting on the  

chair, was an accused in the Bombay blast case, and that therefore,  

he  (PW-39)  may  act  as  a  panch  witness.   He  had  immediately  

agreed to the same.  He had then been told, that the accused had  

wanted to make a disclosure statement, and therefore, he must pay  

close attention to it. The person sitting there had then stated that he  

was Ehsan Mohmed Tufel Mohmed (A-122). He had further said  

that one pistol and some cartridges had been kept by him and his  

associate Salim Shaikh, at a particular  place.  If the officers would  

come with him, he would also show them where such material had  

been kept.   A memorandum panchnama to this  effect  had been  

prepared and explained to the witness in Hindi and Marathi, and  

then signed.  This witness has also identified the panchnama that  

had been prepared at the police station on 5.4.1993 (Exhibit 119).  

He  has  further  deposed  that  the  appellant  (A-122),  the  police  

officials and the panch witnesses had gone together from Fort Road  

to  Mahim  Junction  and  then  to  Mahim  Causeway,  Bandra  

Reclamation.  The appellant (A-122) had stopped at the corner, and  

had told them that they had to go down to the Creek.  The appellant  

(A-122)  had  then  gone  down  to  the  Creek  with  the  police  

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constables escorting him, as well as the panch witnesses. The same  

was a dirty place filled with water.  The appellant (A-122) had then  

put his hand in the water,  and in one attempt had taken out the  

plastic bag.  Upon opening the bag, the same was found to contain  

one pistol and eight cartridges.  The eight cartridges were separate  

from the pistol.  P.I. Hadap had picked up the pistol, and taken out  

its magazine.  The magazine had also contained eight cartridges.  

Thus, in all there were sixteen cartridges.  The pistol was black in  

colour, and its name had been  rubbed off.   On the cartridges, the  

digits, “11/83” were inscribed.  He has further deposed that A.P.I.  

Khanvilkar had placed the contraband in a plastic bag, and upon  

this  requisite  signatures  had  been  duly  taken.  When  the  sealed  

packet was opened, it was found to contain a 7.62 mm pistol with  

magazine.  It also contained sixteen intact 7.62 bottle necked pistol  

cartridges, having head stamp markings of,  “11/83”. The witness  

has  identified  the  pistol  as  being  the  same  one,  that  had  been  

recovered from his person, through a seizure panchnama, as also  

the cartridges and his signature appearing on their labels.  

The witness  has  been cross-examined.  A large  number  of  

suggestions have been made, and certain contradictions have also  

been pointed out. However, he has explained everything, and has  

revealed that he had been able to identify the pistol (Article 48)  

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because the same was black in colour, and on the body of the said  

pistol, at the front, only  metal had been visible.   

211. Deposition  of  Prakash  Dhanaji  Khanvilkar,  Police  Inspector, (PW-513):

He has deposed that on 5.4.1993, he alongwith other officers  

had interrogated the appellant (A-122) at the Mahim Police Station.  

He had been arrested earlier on the same day in L.A.C. No. 389/93.  

During his interrogation, the appellant (A-122) had expressed his  

desire to make a confessional statement.   Thus, he had secured two  

panch  witnesses  and  in  their  presence,  the  appellant’s  (A-122)  

statement  had  been  recorded  in  Hindi,  and  for  this  purpose,  a  

memorandum  panchnama  had  also  been  drawn  up.   He  has  

identified the signatures that had been put on the panchnama by the  

panchas, and by himself.   The appellant (A-122) had also taken  

them  to  Mahim  Creek  to  get  the  recovery  effected,  and  after  

reaching the Creek, he had gone  3 to 4 feet away from the shore,  

into the creek water. He had then taken out one plastic bag from  

the creek water, and had handed over the same to this witness.  He  

had opened the said bag, and  found that it contained one foreign  

made pistol loaded with magazine, containing eight 9 mm rounds  

in it.  The said bag had also contained eight 9 mm loose rounds. He  

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had taken charge of the said articles.  All sixteen loose rounds had  

the digits “11/83” marked on the base of the cap of the said bullets.  

The said pistol and magazines had then been packed into a white  

plastic bag, wrapped with brown paper, and tied with a white string  

and sealed.  A label  duly signed by the panch witnesses and the  

witness  had  also  been  affixed  to  the  package.  Hence,  he  has  

corroborated  the  deposition  of  Rohitkumar  Ramsaran  Chourisa  

(PW-39).   

212. Deposition of Vishnu Ravalu Shinde (PW-615):  

He  has  proved  the  forwarding  letter  dated  6.5.1993,  by  

which the material so collected had been sent for F.S.L.   The other  

witnesses  have also proved the receipt  of  the said material   for  

F.S.L.,  and  its  report  has  revealed  that  the  pistol  had  been  in  

working condition, and that all the 16 cartridges were live.   

213. In view of the above, it is evident that a pistol had been sold  

by Firoz (A-39) to the appellant (A-122), and that it had been the  

accused  (A-39),  who  had  taught  the  appellant  how  to  use  the  

cartridges.  It  is  also evident that the recovery had been effected  

from Mahim Creek, on the basis of the disclosure statement made  

by the appellant, as has been deposed by the panch witness (PW-

39).

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214. The  learned  Designated  Court,  after  appreciation  of  the  

evidence, has held that though the appellant had been in possession  

of  arms  and  ammunition  in  an  unauthorized  manner,  the  same  

does not in any way, show the complicity of the accused in the  

conspiracy relating to the blast of 12.3.1993.   

215. We find no cogent reason to interfere with the findings of  

the  learned  Designated  Court.  The  appeal  lacks  merit  and  is  

accordingly, dismissed.  

216. Before  parting  with  the  case,  we  will  clarify  that  if  the  

accused-appellant(s) whose appeals have been dismissed and are  

on bail, their bail bonds stand cancelled and they are directed to  

surrender within four weeks from today, failing which the learned  

Designated Court,  TADA shall  take them into custody and send  

them to jail to serve out the remaining part of their sentences.

………………………….J. (P. SATHASIVAM)

                     ……………………..…….J.

New Delhi,        (Dr.  B.S.  CHAUHAN) March 21, 2013

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Annexure ‘A’

S. No.  

Criminal  Appeal

Accused Name and  Number

Sentence by  Designated  Court

Award by  Supreme Court

1. 555 of 2012 Ibrahim Musa Chauhan  @ Baba Chauhan(A-41)

8 years RI  with fine of  Rs. 1 lakh; 10  years RI with  fine of  Rs.50,000/-;1 0 years RI  with fine of  Rs.1 lakh;  4  years RI with  fine of  Rs.25,000/-;  and one year  RI with fine  of Rs.2,000/-

Dismissed

2. 1129-1130 of  2007

Altaf Ali Sayed ((A-67) 10 years RI  with fine of  Rs.50,000/-;  and 10 years  with fine of  Rs.2 lakhs

Dismissed

3. 402 of 2008 Mohammed Sayeed  Mohammed Isaaq(A-95)

6 years RI  with fine of  Rs.15,000/-

Dismissed

4. 617-618 of  2008

Ayub Ibrahim  Qureshi(A-123)

5 years RI  with fine of  Rs.12,500/-;  and 5 years  RI with fine  of  Rs.12,500/-

Dismissed

5. 1631 of 2007 Mohd. Yunus Gulam  Rasool Botomiya(A-47)

6 years RI  with fine of  Rs.25,000/-;  and 6 years  RI with fine  of  Rs.25,000/-

Dismissed

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6. 1419 of 2007 Mohamed Dawood  Mohamed Yusuf Khan  (A-91)

6 years RI  with fine of  Rs.25,000/-;  and 6 years  RI with fine  of  Rs.25,000/-  

Dismissed

7. 1226 of 2007 Ramesh Dattatray Mali  (A-101)

6 years RI  with fine of  Rs.25,000/-

Dismissed

8. 1422 of 2007 Shaikh Asif Yusuf       (A-107)

5 years RI  with fine of  Rs.25,000/-;  8 years RI  with fine of  Rs.50,000/-;  and 8 years  RI with fine  of  Rs.50,000/-

Dismissed

9. 1180 of 2007 Mubina @ Baya Moosa  Bhiwandiwala (A-96)

5 years RI  with fine of  Rs.25,000/-

Allowed Conviction  and  sentence  awarded by  the  Designated  Court are  set aside.

10. 1225 of 2007 Noor Mohammed Haji  Mohammed Khan        (A-50)

5 years RI  with fine of  Rs. 1 lakh;  and 5 years  RI with fine  of  Rs.50,000/-

Dismissed

11. 919 of 2008 Mulchand Sampatraj  Shah (A-97)

5 years RI  with fine of  Rs.5 lakhs

Allowed Conviction  and  sentence  

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awarded by  the  Designated  Court are  set aside.

12. 1393 of 2007 Ehsan Mohammad Tufel  Qureshi(A-122)

5 years RI  with fine of  Rs.25,000/-

Dismissed

All these appeals filed by the accused have been dismissed  

except  Criminal  Appeal  Nos.  1180  of  2007  (Mubina  @  Baby  

Moosa  Bhiwandiwala  (A-96)  and  Criminal  Appeal  No.  919  of  

2008 (Mulchand Sampatraj Shah (A-97).   The appeals filed by A-

96 and A-97 are allowed. Their conviction and sentence awarded  

by the Designated Court are set aside and their bail bonds stand  

discharged.  

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