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APPEALS FILED UNDER ARMS ACT/EXPLOSIVE  SUBSTANCES ACT

PART-6 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1060 of 2007

Sanjay Dutt (A-117)              .... Appellant(s)

vs.

The State of Maharashtra, through CBI (STF), Bombay      ….  Respondent(s)

WITH

Criminal Appeal No. 1102 of 2007

Yusuf Mohsin Nulwalla  (A-118)         .... Appellant(s)

vs.

The State of Maharashtra, through CBI (STF), Bombay      ….  Respondent(s)

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    AND

Criminal Appeal No. 1687 of 2007

Kersi Bapuji Adajania  (A-124)                  ....  Appellant(s)

vs.

The State of Maharashtra, through CBI (STF), Bombay      ….  Respondent(s)

WITH Criminal Appeal No. 596 of 2011

WITH Criminal Appeal No. 1104 of 2007

    AND Criminal Appeal No. 1026 of 2012

   WITH Criminal Appeal No. 1001 of 2007

   AND Criminal Appeal No. 392 of 2011

   ********

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Criminal Appeal No. 1060 of 2007

Sanjay Dutt (A-117)              .... Appellant(s)

vs.

The State of Maharashtra, through CBI (STF), Bombay      ….  Respondent(s)

WITH

Criminal Appeal No. 1102 of 2007

Yusuf Mohsin Nulwalla  (A-118)         .... Appellant(s)

vs.

The State of Maharashtra, through CBI (STF), Bombay      ….  Respondent(s)

     AND

Criminal Appeal No. 1687 of 2007

Kersi Bapuji Adajania  (A-124)                  ....  Appellant(s)

vs.

The State of Maharashtra, through CBI (STF), Bombay      ….  Respondent(s)

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**********

P. Sathasivam, J.

1) Mr. Harish Salve, Mr. Surendra Singh, Mr. B.H. Marlapalle  

learned  senior  counsel  appeared  for  A-117,  A-118,  A-124  

respectively and Mr. Raval, learned ASG duly assisted by Mr.  

Satyakam, learned counsel appeared for the respondent-CBI.

2) The abovesaid  appeals  are  directed  against  the  final  

judgment  and  order  of  conviction  and  sentence  dated  

28.11.2006 and 31.07.2007 respectively by the Designated  

Court under TADA for the Bombay Bomb Blast Case, Greater  

Bombay in B.B.C. No.1/1993.

Charges:

3) A common charge of conspiracy was framed against all  

the co-conspirators including the appellants.   The relevant  

portion of the said charge is reproduced hereunder:

“During the period from December, 1992 to April, 1993 at  various  places  in  Bombay,  District  Raigad  and  District  Thane in India and outside India in Dubai (U.A.E.) Pakistan,  entered into a criminal conspiracy and/or were members of  the said criminal conspiracy whose object was to commit  terrorist  acts in India and that you all agreed to commit  following illegal acts, namely, to commit terrorist acts with  an  intent  to  overawe  the  Government  as  by  law  

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established,  to  strike  terror  in  the  people,  to  alienate  sections of the people and to adversely affect the harmony  amongst different sections of the people, i.e. Hindus and  Muslims  by  using  bombs,  dynamites,  handgrenades  and  other  explosive  substances  like  RDX  or  inflammable  substances or fire-arms like AK-56 rifles, carbines, pistols  and other lethal weapons, in such a manner as to cause or  as  likely  to  cause death  of  or  injuries  to  any person or  persons, loss of or damage to and disruption of supplies of  services  essential  to  the  life  of  the  community,  and  to  achieve the objectives of the conspiracy, you all agreed to  smuggle fire-arms, ammunition, detonators, handgrenades  and high explosives like RDX into India and to distribute  the same amongst yourselves and your men of confidence  for  the purpose of  committing  terrorist  acts  and for  the  said  purpose  to  conceal  and  store  all  these  arms,  ammunition  and  explosives  at  such  safe  places  and  amongst yourselves and with your men of confidence till its  use for committing terrorist acts and achieving the objects  of criminal conspiracy and to dispose off the same as need  arises.  To organize training camps in Pakistan and in India  to  import  and  undergo  weapons  training  in  handling  of  arms, ammunitions and explosives to commit terrorist acts.  To harbour and conceal terrorists/co-conspirators, and also  to  aid,  abet  and  knowingly  facilitate  the  terrorist  acts  and/or any act preparatory to the commission of terrorist  acts and to render any assistance financial or otherwise for  accomplishing  the  object  of  the  conspiracy  to  commit  terrorist acts, to do and commit any other illegal acts as  were necessary for  achieving the aforesaid objectives  of  the  criminal  conspiracy  and  that  on  12.03.1993  were  successful in causing bomb explosions at Stock Exchange  Building, Air India Building, Hotel Sea Rock at Bandra, Hotel  Centaur  at  Juhu,  Hotel  Centaur  at  Santacruz,  Zaveri  Bazaar,  Katha  Bazaar,  Century  Bazaar  at  Worli,  Petrol  Pump adjoining Shiv  Sena Bhavan,  Plaza Theatre and in  lobbing handgrenades at Macchimar Hindu Colony, Mahim  and at Bay-52, Sahar International Airport which left more  than 257 persons  dead,  713 injured and property  worth  about  Rs.27  crores  destroyed,  and  attempted  to  cause  bomb explosions at Naigaum Cross Road and Dhanji Street,  all in the city of Bombay and its suburbs i.e. within Greater  Bombay.   And  thereby  committed  offences  punishable  under Section 3(3) of TADA (P) Act, 1987 and Section 120- B of IPC read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 of  TADA (P) Act, 1987 and read with Sections 302, 307, 326,  

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324, 427, 435, 436, 201 and 212 of Indian Penal Code and  offences under Sections 3 and 7 read with Sections 25 (1- A), (1-B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c)  of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of  the Explosive Substances Act, 1908 and Section 4 of the  Prevention  of  Damage to  Public  Property  Act,  1984  and  within my cognizance.”

In  addition  to  the  above-said  principal  charge  of  conspiracy,  the  appellants  were  also  charged  on  other  counts which are as under:

Sanjay Dutt (A-117): At head Secondly;  The  appellant,  in  pursuance of  the  aforesaid criminal conspiracy and during the period from  January,  1993  to  April,  1993,  agreed  to  keep  in  his  possession and acquired 3 AK-56 rifles and its ammunition,  one  9mm  pistol  and  its  cartridges  and  handgrenades,  unauthorisedly,  which  were  part  of  the  consignments  smuggled into the country by Dawood Ibrahim Kaskar and  his associates knowingly and intentionally that these were  smuggled into the country for the purpose of committing  terrorists acts and that he thereby committed an offence  punishable under Section 3(3) of TADA.  

At head Thirdly;  The appellant, by doing the aforesaid  act, unauthorisedly, in Greater Bombay which is specified  as a Notified Area under Clause (f) of Sub Section (1) of  Section  2  of  TADA  and  thereby  committed  an  offence  punishable under Section 5 of TADA.  

At head Fourthly;  The appellant possessed the above  mentioned  arms  and  ammunitions  with  an  intent  to  aid  terrorists and contravened the provisions of the Arms Act,  1959 and the Arms Rules, 1962, the Explosive Substances  Act,  1908  and  the  Explosives  Rules,  2008  and  thereby  committed an offence punishable under Section 6 of TADA.  

At head Fifthly;  The appellant, by doing the aforesaid  act, committed an offence punishable under Sections 3 and  7  read  with  Sections  25(1-A)  (1-B)(a)  of  the  Arms  Act,  1959.  

Yusuf Nulwalla (A-118):

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At head Secondly;  The appellant acquired AK-56 Rifles  and its  carridges and one 9mm pistol  and its  cartridges  which  were  smuggled  into  the  country  for  committing  terrorist acts and destroyed the said AK-56 Rifle with the  assistance of Kersi Adajania (A-124) and entrusted him the  9mm pistol and its cartridges for safe custody and thereby  committed  an  offence  punishable  under  Section  3(3)  of  TADA.

At  head  Thirdly; The  appellant  acquired  the  abovementioned arms and ammunitions from the house of  Sanjay  Dutt  (A-117)  and  possessed  the  same,  unauthorisedly, in a notified area of Greater Bombay and  thereby committed an offence punishable under Section 5  of TADA.  

At head Fourthly; The appellant acquired and possessed  the abovementioned arms and ammunitions and failed to  give information to Police/Magistrate with an intent to aid  terrorists  and  thereby  committed  an  offence  punishable  under Section 6 of TADA.  

At head Fifthly; The  appellant,  by  doing  the  aforesaid  act, committed an offence punishable under Sections 3 and  7  read  with  Sections  25(1-A),  (1-B)(a)  of  the  Arms  Act,  1959.  

At head Sixthly; The appellant caused destruction of the  abovementioned arms and ammunitions with an intention  to  screen  him  and  other  co-conspirators  from  legal  punishment and thereby committed an offence punishable  under Section 201 of the IPC.

Kersi Adajania (A-124):

At  head  Secondly;  The  appellant  aided  and  abetted  Yusuf  Nulwalla  (A-118)  in  destroying  AK-56  rifle  and  disposing  of  9mm  pistol  and  its  cartridges  which  were  smuggled into the country for committing terrorist acts and  thereby  committed  an  offence  punishable  under  Section  3(3) of TADA.

At head Thirdly; In  the first  week of  April,  1993,  the  appellant had in his possession one AK-56 rifle, one 9 mm  pistol  and  its  rounds  in  a  notified  area  of  Bombay  and  thereby committed an offence punishable under Section 5  of TADA.  

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At head Fourthly; The appellant possessed the said arms  and  ammunitions  with  an  intention  to  aid  terrorists  and  thereby committed an offence punishable under Section 6  of TADA.  

At  head  Fifthly; The  appellant,  by  possessing  the  abovementioned  arms  and  ammunitions,  unauthorisedly,  committed an offence punishable under Sections 3 and 7  read with Sections 25(1-A), (1-B)(a) of the Arms Act, 1959.  

At head Sixthly; The appellant caused destruction of the  abovementioned  AK-56  rifle,  9mm  pistol  and  its  ammunitions  which  were  smuggled  into  the  country  for  commission of terrorist acts with the intention of screening  himself  and  the  other  co-conspirators  from  legal  punishment and thereby committed an offence punishable  under Section 201 of the IPC.

4) The appellants have been convicted and sentenced for  

the above said charges as under:

Conviction and Sentence: Sanjay Dutt (A-117):  

A-117 has been convicted for  the offence punishable  

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

of the Arms Act, 1959 and sentenced to suffer RI for 6 years  

along  with  a  fine  of  Rs.  25,000/-,  in  default,  to  further  

undergo RI for a period of 6 months.  However, the appellant  

was not found guilty of all other offences for which he was  

charged and, accordingly, acquitted for all the said offences.  

Yusuf Mohsin Nulwalla (A-118):

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(i) A-118 has been convicted for  the offence punishable  

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

of the Arms Act, 1959 and sentenced  to RI for 5 years along  

with a fine of Rs. 25,000/-, in default,  to further undergo RI  

for a period of 6 months.

(ii) The  appellant  has  been  further  convicted  for  the  

offence punishable under Section 201 of IPC and sentenced  

to  suffer  RI  for  2  years.   However,  the aforesaid  accused  

being found not guilty of all other offences for which he was  

charged at trial.

Kersi Bapuji Adajania (A-124):

(i) A-124 has been convicted for  the offence punishable  

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

of the Arms Act, 1959 and sentenced to suffer RI for 2 years  

alongwith a fine of Rs. 25,000/-, in default, to suffer further  

RI for a period of 6 months.   

(ii) The  appellant  has  been  further  convicted  for  the  

offence punishable under Section 201 of IPC mentioned at  

head  sixthly  and  sentenced  to  suffer  RI  for  2  years.  

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However, the aforesaid accused also being not found guilty  

of all other offences for which he was charged at trial.

Brief Facts:-

5) Before  adverting  to  the  detailed  analysis  of  the  

evidence  and  the  contentions  urged,  the  story  of  the  

prosecution is as under:

(a) Babri  Masjid  at  Ayodhya  was  demolished  on  

06.12.1992.   After  its  demolition,  violence  broke  out  

throughout  the  country.   Tiger  Memon  (AA)  and  Dawood  

Ibrahim (AA), a resident of Dubai, in order to take revenge of  

the  said  demolition,  formulated  a  conspiracy  to  commit  

terrorist act in the city of Bombay.  In pursuance of the said  

object,  Dawood  Ibrahim  agreed  to  send  arms  and  

ammunitions from abroad.  Tiger Memon, in association with  

his men, particularly,  the accused persons, received those  

arms and ammunitions through sea-coasts of Bombay.  The  

evidence on record establishes that  the said  consignment  

was  a  result  of  a  conspiracy  between  Dawood  Ibrahim  

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Kaskar,  Mohammed  Dosa  and  Tiger  Memon  (all  three  

absconding accused).

(b) On 15.01.1993, Samir Hingora (A-53), Hanif Kandawala  

(A-40), Ibrahim Musa Chauhan@Baba (A-41) and Abu Salem  

(A-139)  -  then  absconding,  came to  the  residence  of  the  

appellant (A-117) at Pali Hill, Bandra, Bombay and told him  

that  they  would  deliver  the  weapons  tomorrow  i.e.,  on  

16.01.1993.  On 16.01.1993, A-53, A-41 and A-139 delivered  

3 AK-56 Rifles  and 250 rounds of  ammunitions  and some  

handgrenades at the residence of A-117.   On 18.01.1993,  

out of the abovesaid 3 AK-56 Rifles and ammunitions, 2 rifles  

and  some  ammunition  were  taken  away  by  co-accused  

persons including one Mansoor Ahmed (A-89).

(c) On 12.03.1993, bomb explosions took place at various  

places in Bombay causing death of 257 persons, injuries to  

713 and destruction of property worth about Rs. 27 crores.   

(d) On  18.04.1993,  A-89  was  taken  in  police  custody  

whereas A-117 was arrested from the Mumbai International  

Airport on 19.04.1993 upon his arrival from Mauritius.  On  

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the  same  day,  at  about  15:30-15:40  hrs.,  he  made  a  

statement to the police that the rifle and the pistol and its  

rounds thereof have been kept with A-118 and that he would  

identify him and his house in Dongri, Umarkhari.  He also led  

the police party to the house of A-118 at 15:45 hrs. When  

wherebaouts of A-118 were searched, it was found that he  

was detained by the Dongri Police Station in connection with  

the non-renewal of Arms licence.     

(e) A-118 was summoned from Dongri  Police Station and  

produced  before  DCB-CID.    He  made  a  statement  

mentioning the name of A-124 and led the police party to his  

house.

(f) During investigation, A-124 produced a spring and a rod  

remanent  of  the  burnt  AK-56  and  also  made  a  further  

statement regarding 9mm pistol and led the police party to  

A-125.  A-125 made a statement and after that the police  

party proceeded to the house of A-120.   

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(g) A-120 produced a bag containing box wherein the pistol  

and its cartridges were found.  His statement was recorded  

and the articles were seized and a Panchnama was drawn.

(h) All  the  above  facts  form  part  of  the  complaint  

culminated into the registration of a Local  Act Case (LAC)  

bearing  No.  21  of  1993  in  respect  of  the  abvoesaid  5  

persons,  namely,  A-117,  A-118,  A-124,  A-125  and  A-120.  

The said complaint mentioned that the investigation being  

carried  out  in  furtherance  of  C.R.  No.  70  of  1993.   The  

sequence of events after the arrest of A-117 till the recovery  

of  pistol  from  A-120  formed  part  of  an  unbroken  chain  

inseparably connected with each other.

(i) On 22.04.1993, Mr. Krishan Lal Bishnoi, the then DCP  

(PW-193), who was investigating Worli Blast from 13.03.1993  

was withdrawn from investigation.   On 26.04.1993,  A-117  

expressed his desire to make a confession and, accordingly,  

he was produced before PW-193,  who after  recording the  

preliminary statement (First part), awarded him a period of  

48 hours for cooling off.   

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(j) On 27.04.1993, the confession of A-118 was recorded  

by Mr. Bishnoi (PW-193) in first part and a further time for  

reflection was awarded to him.

(k) On 28.04.1993, PW-193 recorded the second part of the  

confession  of  A-117.   Similarly,  on  29.04.1993,  the  

confession  of  A-118  was  recorded  by  PW-193  which  

remained un-retracted.  

(l)  On 03.05.1993, A-117 was sent to the judicial custody.  

On 05.05.1993, A-117 filed a writ petition before the Bombay  

High Court and the High Court released him on interim bail  

with  the  direction  that  the  bail  granted  to  A-117  would  

continue  till  the  filing  of  charge  sheet  in  the  Designated  

Court and after that the said Court would consider his bail  

application.  

(m) Between 18th and 20th May, 1993, and 24th and 26th May,  

1993,  confessions  of  A-53  and  A-89  respectively  were  

recorded by PW-193.    

(n) On 04.11.1993, a consolidated charge sheet was filed  

against all the accused persons including the appellants (A-

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117, A-118 and A-124).  On 19.06.1994, A-117 applied for  

bail  before  the  Designated  Court.   By  order  dated  

04.07.1994,  the  Designated  Court  dismissed  the  said  

application.   

(o) Against  the  said  order,  A-117  filed  a  special  leave  

petition before this Court and prayed for grant of bail.  After  

hearing  the  bail  petition,  this  Court,  by  order  dated  

18.08.1994 in Sanjay Dutt vs. State (I), (1994) 5 SCC 402,  

referred  the  matter  to  the  Constitution  Bench  on  the  

question of interpretation and construction of the provisions  

of TADA, namely, Section 5 as well as Section 20. By order  

dated 09.09.1994, the said reference was answered by the  

Constitution Bench in Sanjay Dutt vs. State (II),  (1994) 5  

SCC 410.  After the reference was answered, the matter was  

placed before the regular Bench for consideration of the bail  

application.  By order dated 23.09.1994, this Court rejected  

the application for bail filed by A-117.  On 09.11.1994, A-117  

filed a detailed retraction.   

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(p) In June, 1995, in view of the directions of this Court in  

Kartar Singh vs.  State of Punjab, (1994) 3 SCC 569, the  

Central and State Government set up a Review Committee in  

order to individually review the cases of the accused persons  

involved  in  the  Bombay  bomb  blasts  case  to  consider  

whether or not the provisions of TADA are applicable against  

individual accused persons and whether or not any of the  

accused  persons  ought  to  be  entitled  to  bail?   On  

08.08.1995,  the  report  of  the  Review  Committee  

recommended  that  the  public  prosecutor,  on  certain  

parameters,  may  recommend certain  cases  for  bail.   The  

case of A-117 was one such case that was considered for  

grant of bail by the public prosecutor.  The said report was  

filed by the prosecution before the trial Court on 09.08.1995.  

The CBI, in M.A. No. 312 of 1995, filed an application before  

the Designated Court stating that they have no objection for  

grant of bail to A-117 and 11 others.

(q) On  11.09.1995,  in  view  of  the  report  of  the  Review  

Committee,  A-117  renewed his  prayer  for  bail  before  the  

Designated Court but the Designated Court again dismissed  

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the said application.  In September, 1995, challenging the  

said  order,  A-117  filed  Criminal  Appeal  No.  1196 of  1995  

before  this  Court  and  prayed  for  grant  of  bail.   On  

16.10.1995, this Court granted bail to him till the completion  

of his trial. (1995 (6) SCC 189).

(r) By  order  dated  28.11.2006  and  31.07.2007,  the  

appellants  (A-117,  A-118  and  A-124)  were  convicted  and  

sentenced by the Designated Court as mentioned earlier.      

Evidence

6) The prosecution relied on the following evidence which  

is in the form of:-

(i) the evidence of  their own confessions;

(ii) confessions  made  by  other  co-conspirators;  (co-

accused)

(iii) Deposition of Prosecution witnesses, viz., – Shri Krishan  

Lal Bishnoi (PW-193), the then DCP, Pandharinath H. Shinde  

(PW-218)- who was on guard duty at the bungalow of Sunil  

Dutt, Manohar Vasudev Shirdokar (PW-219)-Sr. Inspector of  

Police, Suresh S. Walishetty (PW-680), Rajaram Ramchandra  

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Joshi  (PW-475),  API,  Panch  Witness  Shashikant  Rajaram  

Sawant  (PW-211),  Gangaram  Bajoji  (PW-265)-independent  

witness  and  Karmegam  Algappan,  PW-472  attached  with  

computer cell of MTNL, Malabar Hill and;

(iv) documentary evidence.   

Submissions made by Mr. Harish Salve, learned senior  counsel for the appellant (A-117)

7) Mr. Harish Salve, learned senior counsel for A-117, at  

the  foremost,  submitted  that  reliance  on  the  confessional  

statement made by A-117 is impermissible.  He pointed out  

that the contention that the judgments of this Court have  

held that the prosecution can rely on the confession of an  

accused made before a police officer in every case where  

the accused is charged of a TADA offence, as long as the  

trial  is joint, has been misconceived.  He also pointed out  

that if the language of the provisions led to a situation that a  

confession to the police becomes admissible irrespective of  

the fate of the TADA charge, then it would lead to invidious  

discrimination between the accused, who were charged (but  

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acquitted) under TADA along with other offences and those  

who were accused only of non-TADA offences.

8) Mr. Harish Salve further pointed out that in  Prakash  

Kumar @ Prakash Bhutto vs.  State of Gujarat (2005) 2  

SCC 409, it was contended before the Court that “rigours of  

Section  12  are  discriminatory  and  attract  the  wrath  of   

Articles 14 and 21 of the Constitution as it  empowers the   

Designated  Court  to  try  and  convict  the  accused  for  the   

offences  committed  under  any  other  law  along  with  the   

offences committed under TADA thereby depriving the rights   

available to  the accused under the ordinary law.”    This  

contention was rejected by holding that  “Section 12 is  to  

take care of  the  offences connected with  or  incidental  to   

terrorist activities.  The other offences being connected and   

inextricably intertwined with the terrorist act.”  

9) He further pointed out that a Bench of five Judges of  

this Court in Sanjay Dutt vs. State (1994) 5 SCC 410, had  

observed in  paragraph 14 that  “the construction made of   

any provision of this Act must therefore be to promote the   

object  of  its  enactment  to  enable  the  machinery  to  deal   

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effectively with the persons involved in, and the associated   

with,  terrorist  and disruptive activities while ensuring that   

any person not in that category should not be subject to the   

rigors  of  the  stringent  provisions  of  the  ….Act.   It  must,   

therefore, be borne in mind that any person who is being   

dealt with and prosecuted in accordance with the provisions   

of the TADA must ordinarily have the opportunity to show  

that he does not belong to the category of persons governed   

by TADA.  Such a course would permit exclusion from its   

ambit of persons not intended to be covered by it……”   In  

paragraph  17,  this  Court  cited  with  approval  an  earlier  

decision, viz.,  Niranjan Singh Karam Singh Punjabi vs.  

Jitendra Bhimraj BijayaI, (1990) 4 SCC 76 in which it was  

observed that “when a law visits a person with serious penal   

consequences,  extra  care  must  be  taken  to  ensure  that   

those whom the Legislature did not intend to become by the   

express  language  of  the  Statute  are  not  roped  in  by   

stretching the language of the law.”  This Court read down  

the  provisions  of  Section  5  of  TADA  and  held  that  the  

presumption under the said section in relation to possession  

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of weapons was a rebuttable presumption and an accused  

could  always  establish  his  innocence  in  relation  to  that  

statute.

10) According  to  him,  only  where  the  transactions  in  

respect  of  which an  accused is  convicted are  interrelated  

inextricably  with  the  transactions  which  fall  under  TADA,  

then Section 12 would enable the prosecution to rely upon  

the confession of the accused made to a police officer.  He  

further pointed out that it would be a travesty to apply this  

principle in the present case.

11) By poining out the confession of the appellant (A-117),  

learned senior counsel contended that even if we believe the  

statements  made,  it  would  simply  establish  a  case  of  

violation  of  the  Arms  Act,  there  is  no  suggestion  of  any  

terrorist act.  On the contrary, the act was the resultant of  

the personal as well as the security need of the family of the  

appellant.  He further contended that judicial notice must be  

taken of the state of affairs in Bombay during the post Babri  

Masjid demolition period, particularly, in January, 1993.  It is  

further  pointed  out  that  the  Legislature  did  not  intend  to  

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cover such persons ever in a law dealing with terrorism.  The  

victims  of  terrorism  of  a  kind  (vicious  communal  riots)  

cannot and should not be treated at par with perpetrators.

12) He further pointed out that the unchallenged finding of  

the  trial  Court  in  the  present  case  is  that  the  alleged  

acquisition of 2 illegal weapons by the appellant (A-117) was  

at a different point of time, much before even the conspiracy  

in  relation  to  the  Bombay  blasts  was  commenced.   He  

further  contended  that  the  provocation  for  the  alleged  

acquisition was not the conspiracy or any act or  omission  

related  to  the  Bombay  blasts,  but  related  to  an  entirely  

different  event,  i.e.,  the  riots  in  January  1993  and  the  

appellant (A-117) allegedly, out of fear for his own life and  

for  the  security  of  his  family,  acquired  those  weapons.  

Under such circumstances, the question of any connection  

leave  alone  the  acquisition  of  weapons  or  any  act  or  

omission relating to the Bombay blasts is conspicuous by its  

absence.

13) With regard to the evidence in order to establish that  

the appellant was in conversation with Anees over phone,  

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learned  senior  counsel  contended  that  the  alleged  

confession  of  Samir  Hingora  (A-53)  as  well  as  of  Hanif  

Kandawala  (A-40)  (his  partner)  to  the  effect  that  the  

appellant (A-117) was in conversation with Anees relates to  

A-53’s  visit  to  the  house  of  the  appellant  (A-117)  on  the  

night of 15th January whereas the call records relied on were  

of 16th January, 1993.

14) Learned  senior  counsel  also  pointed  out  that  the  

prosecution has not appealed the findings of the Designated  

Court and the alleged confession which suggested that the  

appellant (A-117) was in conversation with Anees is, in fact,  

unbelievable. One significant reason for the same is that it  

does not explain as to how Samir could have known that the  

appellant was in conversation with someone on a landline  

telephone which was inside his house.  This attempt of the  

prosecution  to  unnecessarily  create  prejudice  against  the  

appellant (A-117) is baseless and, therefore, merits summary  

rejection.   The  judgment  of  this  Court  in  Sanjay  Dutt’s  

case (supra) dealt with a pure interpretation of Section 5 of  

TADA.  It clearly lays down that the possession of a weapon  

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is  not  per se a  TADA offence.   Section 5 mearly  raises a  

presumption  that  a  person,  who  is  in  possession  of  

unauthorized arms or ammunitions of the specified variety,  

would be liable to be punished under TADA.  According to  

him,  this  Court,  in  fact,  read down the  plain  language of  

Section 5 to make it applicable only as a presumptive rule of  

evidence.  This issue is no longer open because it has been  

conclusively found that the alleged acquisition of the weapon  

had absolutely nothing to do with any of the alleged terrorist  

activities of the other accused in the conspiracy.  Learned  

senior counsel for the appellant further contended that the  

State has not filed an appeal in the matter, hence, stands  

concluded.

15) In  addition  to  the  above  arguments,  Mr.  Surendra  

Singh,  learned  senior  counsel  for  A-118  contended  that  

everything  was  manufactured  at  the  Crime  Branch  Police  

Station.  He further contended that even if A-118 was having  

possession of AK 56 rifle,  memorandum for the same was  

not signed by him and Sections 12 and 15 of TADA have no  

application  in  his  case.   He  further  submitted  that  his  

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confession is hit by Section 25 of the Evidence Act, 1872 and  

his alleged statement is compelled one which is hit by Article  

21 of the Constitution.  

16) Similar to the contentions of Mr. Salve and Mr. Singh,  

Mr.  B.H.  Marlapalle,  learned senior  counsel  for  A-124 also  

contended that there was no constructive possession of any  

weapon and A-124 was not having any knowledge about it.  

He also contended that he was charged only under the Arms  

act  and  IPC  which  has  nothing  to  do  with  TADA and  the  

offence against him, if any, ought to have been referred to  

the normal criminal court and for that reason, the confession  

recorded under TADA ought to have been erased.  He also  

very much relied on the decisions of this Court in  Sanjay  

Dutt (supra),  Prakash Kumar (supra) and Mohd. Amin  

vs. CBI (2008) 15 SCC 49.

17) Learned  ASG  met  all  the  contentions  and  took  us  

through the relevant materials relied on by the prosecution.

Confesssional Statement of Sanjay Dutt (A-117)  

18) The confessional statement of A-117 was duly recorded  

under Section 15 of TADA on 26.04.1993 at 15.30 hrs. (First  

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Part) and on 28.04.1993 at 1600 hrs. (Second Part) by Shri  

Krishan  Lal  Bishnoi  (PW-193),  the  then  DCP,  Zone  III,  

Bombay.  The following extracts from the confession of the  

appellant are pertinent:

“(i) I am having three valid license for fire arms and  

possess 3 fire arms as mentioned below:

(a) 270 Rifle of BRUNO make;

(b) 375 Magnum Double barreled Rifle; and

(c) 12 Bore Gun of Double Barrel.

(ii) I purchased these weapons due to my fondness for  

hunting.  I normally go for hunting with one friend  

of  mine,  viz.,  Mr.  Yusuf  Nullwala  as  he  is  an  

experienced  hunter.   I  also  know  one  friend  of  

Yusuf Nullwala by name Kersi Bapuji Adajenia and  

met him three times.

(iii) In December, 1991, I had given dates for shooting  

to actor  producer  Firoz Khan for  his  film Yalgar.  

He had taken the whole unit for shooting in Dubai.  

During one of the shootings, Firoz Khan introduced  

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me  to  one  Mr.  Daud  Ibrahim  and  also  to  his  

brother  Anees  during  another  shooting  session.  

After that, Anees used to visit us regularly during  

the shootings and also at the place of our stay.

(iv) Since Anees used to come frequently,  I  become  

well acquainted with him.

(v) I  also  know  the  proprietors  of  Magnum  Video,  

namely Hanif Kandawala and Samir Hingora.  I also  

signed for acting in one of their film Sanam.  Samir  

is  treasurer  of  Indian  Motion  Picture  Association  

(IMPA).   Hanif  and  Samir  used  to  come  quite  

frequently  to  my  house  for  taking  dates  for  

shooting from my Secretary.

(vi) Hanif told me that if I so desire, he would make  

immediate arrangements to provide an automatic  

fire arm to me for my protection.  Initially, I did not  

show  any  interest  but  when  Hanif  and  Samir  

started repeatedly telling me to acquire a firearm  

from them, I gradually fell prey to their persistent  

suggestion and expressed my desire to Hanif and  

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Samir.  They  said  that  they  would  immediately  

provide me with an automatic fire arm.    

(vii) One day, in mid Jan., in the evening, around 9.00  

to 9.30 p.m., Hanif and Samir came to my house  

along with one person by name Salem.  I had met  

this Salem once or twice earlier also.  

(viii) Then  these  3  fellows  told  me  that  they  were  

coming tomorrow morning with the weapons to be  

delivered to you.  Then they went away.

(ix) Next day morning Samir, Hanif and Salem all three  

came to my house along with one other  person  

who is not known to me.

(x) They came in a Maruti Van and parked it in a Tin  

shed which is used by us for parking our vehicles.  

One  person  was  sitting  inside  the  Maruti  Van.  

After  about  15-20 min.,  he  took  out  three rifles  

and they said it is AK-56 rifles.

(xi) I  got  some cloth from my house and gave it  to  

them.  Salem and the person who has come with  

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him wrapped those rifles in the cloth and gave it to  

me.

(xii) When I opened and saw it, there were three rifles  

some magazines and rounds, they have told me  

that there are 250 rounds.  The rounds were kept  

in another hand bag fetched by me.

(xiii) On seeing three rifles, I got scared and told them  

that I wanted only one weapon.  Then Hanif and  

Salem told me to keep it for the time being and in  

case it is not required, we will take away the rest  

of the two weapons.

(xiv) They have also shown me some brown coloured  

hand-grenades and asked me whether I want that  

also.  I do not want these grenades and you may  

please leave my house immediately, I told them.

(xv) I kept these rifles and ammunition in the dickey of  

my Fiat Car No. MMU 4372 and locked it.

(xvi) On the same night, I removed the three rifles and  

ammunition, kept the same in a handbag which I  

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kept in my private hall which was on the 2nd floor  

of our bungalow.

(xvii)Two  days  thereafter,  since  I  had  considerable  

mental tension, I contacted Hanif Kandawala and  

requested him to take away the weapons.  He said  

that he would arrange to send somebody to collect  

the same.  After two days, Hanif Kandawala and  

Samir  Hingora  along  with  Salem  came  to  my  

house in the evening in a car.  I returned two AK-

56 rifles and a part of the ammunition to them but  

retained  one  AK-56  rifle  and some ammunitions  

with me.

(xviii) Around  Sept.  1992,  during  one  of  my  

shooting  at  R.K.  Studio,  one  Kayyum,  who  is  a  

member of Dawood Ibrahim gang, who had also  

met me in Dubai at the time of shooting of the film  

Yalgar  approached  me  with  a  stranger.   They  

offered me a 9 mm pistol with ammunition.  When  

I  saw  it,  I  liked  it  and  had  a  strong  desire  to  

purchase the same.  They offered it to me for a  

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sum of Rs.40,000/-.  I paid the said amount in cash  

to them at my house and purchased the same.  I  

do  not  know the name of  that  person  who was  

brought by Kayyum.  However, he was aged about  

35-38 years, apparently, Muslim, dark complexion,  

height about 5’8”,  fat  built,  moustache,  medium  

curly hair, wearing shirt and pant.  I will be able to  

identify him if brought before me.  He also handed  

over 8 rounds of the said pistol.

(xix) On 2nd April, I left for Mauritious for shooting of the  

film  ‘Aatish’.  There  I  was  informed  by  a  casual  

contact that Hanif and Samir have been arrested  

by the Bombay Police for their complicity in bomb  

blasts.  

(xx) On  hearing  the  news,  I  got  frightened  as  these  

fellows  had  given  me  the  AK-56  rifles  and  they  

may tell my name to the police to involve me in  

the bomb blasts case.  I contacted my friend Mr.  

Yusuf Nullwala on telephone and asked him that  

something is lying in a black coloured bag which is  

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kept in my hall  at the second floor of my house  

and  it  should  be  taken  away  immediately  and  

destroy the things completely which are there in  

the bag,  otherwise, I shall be in a great trouble.  

By this time, the news about my possession of AK-

56 rifles had appeared in the press and on coming  

to know about this, my father asked me about the  

truthfulness of this news, but I denied the same.  

My  anxiety  about  the  whole  episode  became  

unbearable and I decided to return to Bombay in  

between.  My father informed my flight details to  

the Police and I was picked up by police as soon as  

I  landed  at  Bombay  and  I  confessed  the  whole  

things to them.”

19) The  abovesaid  confession  highlighted  the  crime  for  

which  the  appellant-Sanjay  Dutt  has  been  charged.   The  

following facts emerge from the abovesaid confession:

i) He was already having three licensed firearms.

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ii) He  developed  acquaintance  with  Anees  Ibrahim  -  

brother  of  Dawood  Ibrahim  during  a  film-shooting  in  

Dubai.

iii) He expressed his desire to Samir Hingora (A-53) and  

Hanif Kandawala (A-40) to have an automatic fire-arm.

iv) They came with one Salem with whom Sanjay Dutt was  

already acquainted with and they assured him of the  

delivery of weapons the next day in the morning.  

v) They came in the morning of 16.01.1993 with one other  

person and delivered 3 AK-56 Rifles and 250 rounds.  

vi) After 2 days, he returned 2 AK-56 and ammunitions but  

retained 1 AK-56 and some ammunition.  

vii) In April, while he was shooting at Mauritius, he heard  

the news of the arrest of Samir and Hanif, on which, he  

got frightened and requested his friend Yusuf Nulwalla  

to destroy the weapons.  

20) The appellant (A-117) not only implicates himself in the  

above said statement but also amongst others the appellant-

Yusuf Nulwalla (A-118).  The abovesaid confession has been  

duly recorded by PW-193 who has proved the compliance  

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with the provisions  of  law while  recording the confession.  

The abovesaid confession is a substantive piece of evidence  

and  it  has  been  held  in  a  series  of  judgments  that  the  

confession can be the sole basis of conviction, if recorded in  

accordance  with  the  provisions  of  TADA.  Further,  the  

confessional  statement  establishes  the  unauthorized  

possession of weapons in the notified area of Bombay.   

Confessional Statements of co-accused:

21) The confession of the appellant (A-117) is substantiated  

and corroborated with the confession of other co-accused,  

namely,  Samir  Hingora  (A-53),  Baba  @  Ibrahim  Musa  

Chauhan  (A-41),  Mansoor  Ahmed (A-89),  Hanif  Kandawala  

(A-40), Yusuf Nulwalla (A-118) and Kersi Bapuji Adajania (A-

124) which are as under.          

Confessional Statement of Samir Ahmed Hingora (A-

53)

Confessional  statement  of  A-53  under  Section  15  of  

TADA  was  recorded  on  18.05.1993  (17:00  hrs.)  and  

20.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),  

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the then DCP, Zone III, Bombay.  The said confession reveals  

as under:

i) He  started  a  Video  Library  and  Mustafa  Dossa  @  

Mustafa Majnoo (A-138) - brother of Mohd. Dossa (AA)  

was  a  member  of  his  Video  Library  and  he  had  2-3  

shops in the same market.  

ii) Tiger  Memon  used  to  work  with  Mustafa  Dossa  and  

became a friend of A-53.

iii) A-53 started film distribution and production business  

by  the  name  of  ‘Magnum’  in  partnership  with  Hanif  

Kandawala (A-40 – since died).  

iv) Anis  Ibrahim  (AA)  became  a  member  of  his  Video  

Library and was referred to  by everyone as Anisbhai  

since he was the brother of Dawood Ibrahim.  

v) A-53 received a payment of Rs. 21.90 lacs from Ayub  

Memon sent through someone on 13.03.1993 (one day  

after  the  blasts)  as  advance for  purchasing  rights  of  

films.

vi) A-53  had  visited  Dubai  and  met  Anis  Ibrahim  many  

times and sold the rights of many films to M/s Kings  

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Video, managed by Anis.  Anis also controls Al-Mansoor  

Video Company through Chota Rajan.

vii) On 15.01.1993, A-41 and A-139 met A-53 at his office.  

Anis Ibrahim called him from Dubai and said that A-41  

and A-139 are his men and they have some weapons  

which have to be delivered to A-117 at his residence.

viii) A-53 and A-139 went to  Sanjay Dutt’s  (A-117)  house  

where he hugged Abu Salem and asked him about the  

weapons.  A-117 then told A-139 to bring the weapons  

next day at 7 am.  

ix) On 16.01.1993, A-53 led A-139 and A-41 to the house of  

Sanjay Dutt.  A-139 and A-41 were in a blue maruti van  

while A-53 was in his own car.  

x) At the residence of A-117, A-53 saw that the blue van  

was containing 9 AK-56 rifles and hand grenades and  

they gave 3 AK-56 rifles and some magazines to A-117.  

A-117 also asked for some hand grenades which were  

put in a black bag by A-139.

xi) A-139 kept the rifles in a fiat car belonging to A-117.  

The hand grenades were kept in the car of A-53 and he  

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left  the  car  at  A-117’s  residence  and  took  an  auto  

rickshaw.  

xii) A-53 collected his car from A-117’s residence after 3  

days when he called him and said that grenades have  

been taken out.   

Confessional  statement  of  Baba  @  Ibhrahim  Musa  Chauhan (A-41)

Confessional  statement  of  A-41  was  recorded  under  

Section  15  of  TADA  on  23.04.1993  (12:45  hrs.)  and  

25.04.1993 (13:05 hrs.) by Shri Prem Krishna Jain (PW-189),  

the then DCP, Zone X, Bombay.  The said confession shows  

that:

(i) A-41  was  introduced  to  Anees  Ibrahim  Kaskar  (AA)-

brother of Dawood Ibrahim and Abu Salem when he had  

been  to  Dubai  and,  thereafter,  he  developed  good  

acquaintance with both of them.

(ii) On 15.01.993, A-139 telephoned A-41 and asked him to  

arrange  for  a  garage  having  facility  of  closing  it  by  

shutter.  

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(iii) Abu  Salem  is  an  extortionist  and  worked  for  Anees  

Ibrahim.  

(iv) Thereafter,  A-139  went  to  the  office  of  A-41  and  

inquired if  he had received a  phone call  from Anees  

Ibrahim. On replying in the negative, A-139 went to a  

nearby STD booth and called Anees and then made A-

41 talk  to  him,  at  that  time,  A-41 told  him that  the  

garages, as required, cannot be arranged by him.  

(v) Thereafter, at the behest of Anees Ibrahim (AA), A-41  

along with A-139 went in search for garages in Bandra  

and Pali Hills area and Samir Hingora (A-53) and Hanif  

Kandawala (A-40) also joined them.  

(vi) Since they did not find any garage, A-139, A-53 and A-

41 informed the same to Anees over phone who was in  

Dubai and it was decided that the work of finding out  

the garage would be carried out the next day.  In the  

meanwhile, A-139 told A-41 that he will keep 2 to 3 AK-

56 rifles with him for 2/3 days.  

(vii) On  the  next  day  i.e.  16.01.1993,  A-139  went  to  the  

house of A-41 and told him to take a white coloured  

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Maruti  van  bearing  registration  number  of  Gujarat,  

which was parked near the Arsha Shopping Centre, and  

to reach the office of Magnum Video.  Accordingly, he  

went to the said place and from there he along with A-

139 and A-53, went to the house of A-117.  

(viii) At that time, A-139 introduced A-41 to A-117.

(ix) A-41 parked the above white coloured Maruti Van which  

he had driven to reach the house of Sanjay Dutt in his  

garage.     

(x) There  were  9  AK-56  rifles,  80  hand  grenades,  

1500/2000 cartridges and 56 magazines in the cavities  

beneath the rear seat of the aforesaid Maruti  Van as  

well  as inside the lining near the front and rear side  

doors, out of which, 3 rifles, 9 magazines, 450 bullets  

and 20 hand grenades were asked to be kept by A-139  

in Sanjay Dutt’s Fiat car.  

(xi) Accordingly, A-41 shifted the cartridges and magazines  

to a sports bag and kept it in Sanjay Dutt’s car.  

(xii) A-53  packed  the  above  mentioned  20  grenades  in  

another sports bag and kept it in Sanjay Dutt’s car and  

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gave another long sports bag to A-41 in which he filled  

3  rifles,  16  magazines,  25  hand  grenades  and  750  

cartridges.  A-41 took the said bag to his house and hid  

it beneath his bed and on the next day, A-41 loaded all  

the bullets in the magazines of the rifles.  

Confessional  Statement  of  Manzoor  Ahmed  Sayyed  Ahmed (A-89)

  Confessional  statement  of  A-89  under  Section  15  of  

TADA  was  duly  recorded  on  24.05.1993  (11:15  hrs.)  and  

26.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193)  

the then DCP, Zone III, Bombay.  The said confession reveals  

as under:

i) A-89 was a good friend of Abu Salem.

ii) He owns a Maruti 1000 bearing No. MP 23 B-9264.

iii) On 22/23rd January, 1993, A-89 met A-139.  A-139 gave  

the keys of  his  car  to  A-41 who kept a black bag of  

weapons in it.  

iv) A-139 and A-89 then went to the first floor of 22 Mount  

Mary, Vidhyanchal Apts. They gave the bag to an old  

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lady,  viz.,  Zaibunisa Anwar Kazi  (A-119)  and told her  

that the arms were for the purpose of causing riots, and  

were  sent  by  Anees  Ibrahim  -  brother  of  Dawood  

Ibrahim.  

v) A-119 looked at the contents of the bag and then kept  

it at her residence.  

vi) After 8 days, A-139 called A-89 again and together with  

A-40,  they went  to  the  residence of  A-117 where he  

gave them a blue rexin bag and a carton.  

vii) Abu Salem and A-89 then went to the house of A-119  

and gave the carton and the bag to her.  Abu Salem  

told A-119 to keep those weapons safely as they were  

to be used for orchestrating bomb blasts.  

22) The  abovesaid  confessional  statements  of  the  co-

accused  clearly  establish  the  case  against  the  appellant-

Sanjay Dutt and also corroborate with each other in material  

particulars.  The following facts emerge from the abovesaid  

confessional statements:-

(i) The  appellant  had  acquired  3  AK-56  rifles  and  its  

ammunitions unauthorisedly.

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(ii) Samir  Hingora  (A-53),  Hanif  Kandawala  (A-40)  and  

Salem  (A-139)  provided  the  above  said  arms  and  

ammunitions to the appellant at his residence.

(iii) On  being  frightened  after  seeing  the  weapons,  the  

appellant contacted Hanif Kandawala (A-41) and requested  

him to take away the weapons.

(iv) Abu  Salem  came  after  few  days  and  the  appellant  

returned 2 AK-56 rifles and also ammunitions, but retained  

one AK-56 rifle and some of its ammunitions.   

Confessional  Statement  of  the  appellant  -  Yusuf  Mohsin Nulwalla (A-118)

23) Confessional statement of A-118 under 15 of TADA was  

recorded on 27.04.1993 at (14:20 hrs.)  and 29.04.1993 at  

(16:00  hrs.)  by  Shri  K.L.  Bishnoi,  the  then  DCP,  Zone-III,  

Bombay.  The following extracts from the confession of the  

appellant are pertinent:-  

“Somewhere around the year, 1970, I came in contact with  one person by name Azhar Hussain and later on I became  very  friendly  with  him.  He  was  cousin  of  Sanjay  Dutt  through him I met Sanjay Dutt and developed friendship  with  him  as  he  was  also  fond  of  hunting,  fishing  and  staying in  camp life.   After  this  myself  and Sanjay  Dutt  used to go out for hunting with other friends occasionally.  I  came in contact with Sanjay Dutt’s father and other family  members due to my friendship with Sanjay Dutt and his  cousin Azhar Hussain.  Later on Sanjay Dutt  had started  

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taking on drugs and because of this he used to remain out  off from us and started avoiding me.  However, my contact  with Sanjay’s father and other family members was as it is  and they normally used to ask me to convince Sanjay to  give up the drugs but my convincing and persuasion did  not help him.”

“Somewhere in the year 1984, Sanjay has taken me out to  one of his friend by name Tariq Ibrahim’s place in Kanpur.  From there his friend had taken us out of his farm in Tarai  and  we  stayed  there  for  one  week.   During  the  stay,  I  casually mentioned to Tariq Ibrahim that I am quite fond of  guns but I am not getting arms license.  Then he told me  that don’t worry my brother is Supdt. of Police at Ratlam  and he will get you arms license as and when you wanted.  Later  on,  I  contacted  his  brother  Asif  Ibrahim,  who was  Supdt. of Police, Ratlam to give me arms license, he did it  and  subsequently  he  gave  me two more  arms  licenses.  After getting these licenses, I was gifted two guns by Sunil  Dutt out of which one was 12 Bore DBBL gun and another  was 22 Rifle.  I purchased the 3rd weapon, which is single  barrel 375 Magnum Rifle.”

“In the meanwhile,  I  had come in contact with one Kesi  Bapuji Adajenia, who was also in steel fabrication business  and was also an old hunter so we became friends.  He also  used to give me sub contracts for steel fabrication.  I had  introduced him to Sanjay Dutt also and later on he went  with us for hunting to a place near Surat once.”

“Later  on  Sanjay  Dutt  became  quite  popular  in  Hindi  movies and most of the times he used to remain busy in  his shootings.  Many times, I also used to get to the place  for  shooting to meet Sanjay Dutt.   He had taken me to  Bangalore,  Mysore,  Ooty,  Kodai  Kanal  and  various  other  places  during  this  outdoor  shooting  to  these  places.  Normally, I  used to meet Sanjay two to three times in a  week either at his house or at the place of shootings.”

“In the first week of April,  he left for Mauritius and I got  busy with my normal business.  Then one day, I read in  newspaper the news item that “Sanjay dutt is in possession  of AK-56 Rifles.”

In the same day evening, I received a telephone call at my  residential telephone from Sanjay dutty, who was speaking  

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from Mauritius.  He told me that there is something which  is  kept  in  a  black coloured  bag kept  in  his  room at  his  residence (i.e. 58, Pali Hill Bandra, Bombay-50) and I shall  take that bag from his room and destroy the things inside  it immediately otherwise he will be in a great trouble.  

Next day morning, I went to Sanjay’s residence and took  the black bag from his second floor room and opened it  there only.  

When I opened it I found it containing one AK-56 rifle, two  empty  magazines  and  approximately  two  hundred  fifty  rounds of AK-56, one pistol and one loaded magazines of  pistol.  

I took out the AK-56 rifle there only and cutted it in pieces  with a hexa, which I had taken along with me then I put all  the  cut  pieces  in  the  bag  and  came to  my friend  Kersi  Bapuji Adajenia’s house as he used to keep all the tools of  his steel fabrication in the godown in his house.  

I told him the whole story and also that Sanju is in great  trouble, so I required your help in melting and destroying  the cutted pieces of AK-56 rifles.  Both of us came to his  godown and I tried to melt the cutted pieces of AK-56 with  the help of cutter, but could not succeed, then my friend  Adajenia melted all the pieces of AK-56 rifle with the help  of gas cutter.  

After that I gave the pistol to Kersi Bapuji Adajenia asked  him to burn it also after sometime.  I collected the melted  remains of AK-56 Rifle and threw it in the sea at Marine  Drive.  

Next  day  morning,  I  kept  the  rounds  of  AK-56  in  two  separate bundles wrapped in papers and threw it in the sea  in front of Oberoi Towers and returned to my home.  

Next day in the early morning, I got telephone call from  Sanjay Dutt at my residence No. 3755092 and I informed  him  that  your  work  is  done  and  had  normal  talk  with  Sanjay Dutt.  

After this, I spoke to Kersi Bapuji Adajenia once and told  him that you burn the pistol also but he told me that you  do no worry about this.  I  will  take care of this.  Then I  

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stayed at my house and did my normal business till I was  picked up by the Police.”  

24) From  the  abovesaid  confession,  the  following  facts  

emerge:          

i) Yusuf Mohsin Nulwalla is an old and well known friend  

of Sanjay Dutt.

ii) In  the  month  of  April,  when  Sanjay  Dutt  was  in  

Mauritius, A-118 was asked to destroy certain objects  

kept at his residence.  

iii) On reaching there,  he discovered AK-56 and a  pistol  

and ammunition.  

iv) He tried to destroy them.  

v) He  took  all  these objects  to  a  friend of  his,  namely,  

Kersi Bapuji Adajania (A-124)    

vi) A-124 helped him to destroy the same but he retained  

the pistol with him.

vii) Upon being reminded about destroying the pistol, A-124  

assured A-118 that he would take care of it.  

25) In view of the above, it is seen that the appellant (A-

118),  upon  instructions,  caused  destruction  of  evidence  

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related to an offence, which were unauthorisedly possessed  

automatic firearms/weapons in a notified area, attracting the  

provisions of the Arms Act.  The confession of A-118 not only  

involves  and  implicates  him,  but  also  implicates  Kersi  

Adajania (A-124).  The confession of A-118 corroborates with  

the confession of A-117 as well as A-124.  

Confessional Statement of the appellant - Kersi Bapuji  Adajania (A-124)

26) The confessional statement of A-124 under Section 15  

of  TADA was recorded on 27.04.1993 (15:10 hrs.)  and on  

30.04.1993 at (16:00 hr.) by Shri K.L. Bishnoi, the then DCP,  

Zone-III, Bombay.  The following extracts from the confession  

of the appellant-Kersi Bapuji Adajenia are relevant:-

“I am Kersi Bapuji Adajenia, age 63 years.  I stay at 605,  Karim  Manzil,  JSS  Road,  Bombay-2  with  my  family.   I  normally take contracts for steel fabrications and the work  is done at the sites of the parties only.  I normally keep the  equipments  and  the  tools  for  steel  fabrications  at  the  temporary  godown  in  my  house  and  I  take  these  equipments to the sites as and when it is required.  Due to  the work load, I have purchased two or three sets of all the  equipments and tools.   Whenever there is a heavy work  load,  I  give  the  excess  work  on  sub-contracts  to  other  persons.   Sometimes,  I  provide  my  own  tools  and  equipments to sub-contractors.  Yusuf Mohsin Nullwala was  my one such sub-contractor.  I had come in contact with  him about ten years back.  Since then, I used to give him  sub-contracts regularly.   

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During the days of  my youth,  I  used to be very fond of  hunting and used to go out for hunting occasionally with  my friends.  But I had given up this hobby (hunting) since  1969 onwards.  This, Yusuf Nullwalla was also very fond of  hunting and he used to talk a lot about hunting and about  his friend cineactor Sanjay Dutt.  He introduced me with  him about seven years back and they had taken me out  once  for  hunting  to  a  place  near  Surat,  I  stayed  with  Sanjay, Yusuf and three – four their other friends there for  two days and we all came back.  After that I met Sanjay  Dutt for two or three times more.  

Somewhere around the end of  first  week of  April,  1993,  one day Yusuf Mohsin Nullwalla came to my house around  10.00 a.m. in the morning, he was having a black coloured  Rexin bag hung to his shoulder with him and he said to me  that Sanjay Dutt had telephoned him saying that on AK-56  rifle and other things are lying at this house and police had  come to know about his and he is in great trouble and he  has asked me to collect it and destroy it, so I had gone to  his house and collected it and I have also cut it into pieces  and now I want gas cutting set to completely destroy it,  then  he  showed  me  the  cut  pieces  of  AK-56  rifle  by  opening the bag.  

Since I have read about Sanjay Dutt’s possession of AK-56  rifle and police being after him in the newspaper about a  day or two earlier.  So initially, I told him that I do not went  to get involved in this thing.  Then Yusuf said to me that in  case he goes out to some other place for destroying it he is  likely to be caught and requested me to again to give my  gas cutter, so I agreed.  Then he went to my godown and  started destroying the cut pieces of  AK-56 rifle  with the  help of gas cutter.

I also went to the place to see that no mishap takes place.  When I went there I saw that he was fumbling with the gas  cutter  and  was  in  no  position  to  destroy  the  pieces  properly.  Then I adjusted the gas and started melting the  pieces of  AK-56 rifle  myself  with the gas cutter.   These  parts were having lot of grease on them so lot of smoke  was coming out.  Somehow, I managed to destroy all the  parts of AK-56 which he had brought in the bag.

Then he took out one pistol from the bag and wanted me  to  destroy  that  alo  but  I  was  quite  tired and had some  

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breathing problem due to the smoke which was coming out  while the pieces of AK-56 reifle were being destroyed.  So I  told him to leave te weapon with me and I will destroy it  some other time.  Then he collected the meted remains of  AK-56  rifle  in  a  plastic  bag,  gave  the  pistol  to  me  for  destruction  and  he  went  away.   After  two  days,  he  telephoned  me  and  enquired  whether  I  have  destroyed  pistol or not.  I told him not to worry about that.

As  I  was  to  go  to  Calcutta  on  9th April  morning  so  I  telephoned  and  called  a  friend  of  mine,  by  name  Rusi  Framrose Mulla to my house.  He came to my house next  day morning and I  gave the pistol  to him and asked to  keep it in sae custody as I was going out to Calcutta.  I did  not tell  him anything about the history of the pistol and  told him that I will collect it as soon as I come back from  Calcutta.

27) From the above confession, the following facts emerge:-

(i) A-118 was a sub-contractor of A-124.  A-124 was also  

acquainted with A-117.  All three of them were fond of  

hunting and, in fact, went together for hunting once.  

(ii) A-124  had  his  workshop  in  his  house  where  he  was  

keeping all his tools including the gas cutter.

(iii) In or around April,  A-118 contacted A-124 in order to  

destroy an AK-56 and a pistol belonging to Sanjay Dutt  

(A-117).

(iv) A-124 permitted him to do so.

(v) A-124 personally destroyed AK-56.

(vi) A-124 kept with himself the pistol.

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28) The  abovesaid  confession  establishes  the  charge  

framed against A-124 that he knowingly destroyed evidence  

related to an offence.  A-124 was thereafter in unauthorized  

possession of the fire-arm.  The abovesaid confession also  

corroborates in material particulars, the confession of A-118.

29) The  abovesaid  confessions  of  the  appellants,  viz.,  A-

117, A-118 and A-124 have been recorded by PW-193, who  

has proved that  the said  confessions  were recorded after  

following the requirements of the provisions of Section 15 of  

TADA.   It  is  relevant  to  point  out  that  notwithstanding  

vigorous  cross-examination  of  the  witness  (PW-193),  he  

stood firmly without being shaken.  A long line of arguments  

was  placed  before  the  Designated  Court  attacking  the  

voluntariness of the confession on various occasions, which  

had been considered in detail by the trial Court and we fully  

agree with the same.      

Law relating to Confessions under TADA

30) It  is  contended on behalf  of  the appellants that their  

confessional statements, and the confessional statements of  

the co-accused relied upon by the prosecution against them,  

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are confessions recorded by a police officer, and it is hence  

not proper to base the conviction on the basis of the said  

confessions under Section 15 of TADA.  Section 15 of TADA  

reads as under:

15. Certain confessions made to police officers to be  taken  into  consideration.-  (1)  Nothwithstanding  anything in the Code or in the Indian Evidence Act, 1872,  but subject to the provisions of this section, a confession  made by a person before a police officer not lower in rank  than  a  Superintendent  of  Police  and  recorded  by  such  police officer in writing or on any mechanical device like  cassettes, tapes or sound tracks from out of which sounds  or images can be reproduced, shall  be admissible in the  trial of such person or [co-accused, abettor or conspirator]  for an offence under this Act or rules made thereunder:

Provided that co-accused, abettor or conspirator is charged  and tried in the same case together with the accused.

31) In  Jayawant  Dattatray  Suryarao vs.  State  of  

Mharashtra,  (2001) 10 SCC 109, this Court considered in  

detail  the  evidentiary  value  and  admissibility  of  a  

confessional statement recorded under Section 15 of TADA  

and held that it is settled legal position that a confessional  

statement recorded by a police officer is in fact, substantive  

evidence, and that the same can be relied upon in the trial of  

such person or of a co-accused, an abettor or a conspirator,  

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so long as the requirements of Section 15 and of the TADA  

rules are complied with.  It was observed:

“60.  …. Confessional statement before the police officer  under Section 15 of the TADA is substantive evidence and  it  can  be relied  upon  in  the  trial  of  such person  or  co- accused, abettor or conspirator for an offence punishable  under  the  Act  or  the  Rules.  The  police  officer  before  recording the confession has to observe the requirement of  sub-section (2) of Section 15. Irregularities here and there  would not make such confessional statement inadmissible  in evidence. If the legislature in its wisdom has provided  after considering the situation prevailing in the society that  such confessional statement can be used as evidence, it  would not be just, reasonable and prudent to water down  the  scheme of  the Act  on  the assumption  that  the said  statement was recorded under duress or was not recorded  truly by the officer concerned in whom faith is reposed.”

It was further held by this Court, that minor irregularities do  

not  make  the  confessional  statement  inadmissible  as  

substantive evidence and observed as under:

”50. In  this  view  of  settled  legal  position,  confessional  statement  is  admissible  in  evidence  and  is  substantive  evidence. It also could be relied upon for connecting the  co-accused  with  the  crime.  Minor  irregularity  would  not  vitiate its evidentiary value……..”  

32) In  Ravinder  Singh  @  Bittu vs.  State  of  

Maharashtra,  (2002)  9  SCC  55,  this  Court,  while  

considering  the  reliability  of  a  confession  recorded  under  

Section 15 of TADA against the maker,  as well  as the co-

accused, held that after State vs. Nalini, Kalpnath Rai vs.  

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CBI,   it does not reflect the correct position of law.  It was  

observed:

“13. In Kalpnath Rai v. State (through CBI) it was observed  that  the  confession  made  by  one  accused  is  not  substantive evidence against a co-accused. It has only a  corroborative value. In the present case, we are, however,  primarily  concerned  with  the  confession  made  by  the  maker i.e. the appellant himself.  Besides this confession,  there  is  also  a  confession  made  by  co-accused  Nishan  Singh which too implicates the appellant in commission of  the offence of the bomb blast in the train. The observations  made  in  Kalpnath  Rai  case were  considered  in  State  through Supdt. of Police, CBI/SIT v.  Nalini, a decision by a  three-Judge  Bench.  It  was  held  that  the  confession  recorded  under  Section  15  of  the  TADA  Act  is  to  be  considered  as  a  substantive  piece  of  evidence  not  only  against the maker of it but also against its co-accused. In  this  view,  the  observations  in  Kalpnath  Rai  case do  not  represent the correct position of law.

17. It is thus well established that a voluntary and truthful  confessional statement recorded under Section 15 of the  TADA  Act  requires  no  corroboration.  Here,  we  are  concerned primarily with the confessional statement of the  maker.  The  weight  to  be  attached  to  the  truthful  and  voluntary confession made by an accused under Section 15  of the TADA Act came to be considered again in a recent  three-Judge Bench decision in Devender Pal Singh v. State  of NCT of Delhi. It was held in the majority opinion that the  confessional statement of the accused can be relied upon  for the purpose of conviction and no further corroboration  is necessary if it relates to the accused himself.

18. There  can  be  no  doubt  that  a  free  and  voluntary  confession deserves the highest credit. It is presumed to  flow from the highest sense of guilt. Having examined the  record, we are satisfied that the confession made by the  appellant is  voluntary and truthful  and was recorded, as  already noticed, by due observance of all the safeguards  provided  under  Section  15  and  the  appellant  could  be  convicted solely on the basis of his confession.”

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33) In  Mohmed  Amin vs.  Central  Bureau  of  

Investigation, (2008) 15 SCC 49, it was observed:

“28. In  Devender Pal Singh case majority of three-Judge  Bench made a reference to Gurdeep Singh case and Nalini  case and held (at SCC pp. 261-62, para 33) that whenever  an  accused  challenges  the  voluntary  character  of  his  confession  recorded  under  Section  15(1)  of  the Act,  the  initial  burden is on the prosecution to prove that all  the  conditions specified in that section read with Rule 15 of the  Rules have been complied with and once that is done, it is  for  the  accused  to  show  and  satisfy  the  court  that  the  confession  was  not  made  voluntarily.  The  Court  further  held that the confession of an accused can be relied upon  for the purpose of conviction and no further corroboration  is necessary if it relates to the accused himself. However,  as  a  matter  of  prudence  the  court  may  look  for  some  corroboration  if  confession  is  to  be  used  against  a  co- accused  though  that  will  be  again  within  the  sphere  of  appraisal of evidence.

29. In  Jameel  Ahmed  case a  two-Judge  Bench  after  discussing,  considering and analysing several  precedents  on the subject, including  Devender Pal Singh case, culled  out the following propositions:  (Jameel Ahmed case,  SCC  pp. 689-90, para 35)

“(i)  If  the  confessional  statement  is  properly  recorded,  satisfying  the  mandatory  provision  of  Section  15  of  the  TADA  Act  and  the  Rules  made  thereunder, and if the same is found by the court as  having been made voluntarily and truthfully then the  said confession is sufficient to base a conviction on  the maker of the confession.

(ii)  Whether such confession  requires  corroboration  or  not,  is  a  matter  for  the  court  considering  such  confession on facts of each case.

(iii) In regard to the use of such confession as against  a co-accused, it has to be held that as a matter of  

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caution, a general corroboration should be sought for  but  in  cases  where  the  court  is  satisfied  that  the   probative  value  of  such  confession  is  such  that  it   does not require  corroboration then it  may base a   conviction on the basis of such confession of the co- accused without  corroboration.  But  this  is  an  exception  to  the  general  rule  of  requiring  corroboration  when  such  confession  is  to  be  used  against a co-accused.

(iv)  The  nature  of  corroboration  required  both  in  regard to the use of confession against the maker as  also in regard to the use of the same against a co- accused  is  of  a  general  nature,  unless  the  court  comes  to  the  conclusion  that  such  corroboration  should be on material facts also because of the facts  of a particular case. The degree of corroboration so  required is that which is necessary for a prudent man  to believe in the existence of facts mentioned in the  confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the  TADA  Rules  which  contemplates  a  confessional  statement  being  sent  to  the  Chief  Metropolitan  Magistrate  or  the  Chief  Judicial  Magistrate  who,  in  turn, will have to send the same to the Designated  Court  is  not  mandatory  and  is  only  directory.  However,  the  court  considering  the  case  of  direct  transmission  of  the  confessional  statement  to  the  Designated  Court  should  satisfy  itself  on  facts  of  each case whether such direct  transmission  of  the  confessional  statement  in  the  facts  of  the  case  creates any doubt as to the genuineness of the said  confessional statement.”

30. In  Abdulvahab  Abdul  Majid  Shaikh  case this  Court  rejected the argument raised on behalf  of  the appellant  that  the  confession  made  by  him cannot  be  treated  as  voluntary  because  the  same  had  been  retracted  and  observed:  

“9.  … The police officer  was empowered to record  the confession and in law such a confession is made  admissible under the provisions of the TADA Act. The  mere fact that A-9 Musakhan @ Babakhan retracted  

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subsequently  is  not  a  valid  ground  to  reject  the  confession.  The  crucial  question  is  whether  at  the  time when the accused was giving the statement he  was  subjected  to  coercion,  threat  or  any  undue  influence or was offered any inducement to give any  confession. There is nothing in the evidence to show  that  there  was  any  coercion,  threat  or  any  undue  influence to the accused to make the confession.”

31. The  ratio  of  the  abovenoted  judgments  is  that  if  a  person  accused  of  an  offence  under  the  Act  makes  a  confession  before  a  police  officer  not  below the rank of  Superintendent of Police and the same is recorded by the  officer concerned in writing or on any mechanical device  like  cassettes,  tapes  or  sound tracks  from out  of  which  sounds or images can be reproduced, then such confession  is  admissible  in  the  trial  of  the  maker  as  also  the  co- accused,  abettor  or  conspirator  not  only  for  an  offence  under  the  Act  but  also  for  offence(s)  under  other  enactments,  provided  that  the  co-accused,  abettor  or  conspirator  is  charged and tried in the same case along  with  the  accused  and  the  court  is  satisfied  that  requirements of the Act and the Rules have been complied  with.  Whether  such  confession  requires  corroboration  depends  on  the  facts  of  the  given  case.  If  the  court  is  convinced  that  the  probative  value  of  the  confession  is  such that it does not require corroboration then the same  can  be  used  for  convicting  the  maker  and/or  the  co- accused  under  the  Act  and/or  the  other  enactments  without independent corroboration.”

After  considering  the  confessions  of  the  accused  in  the  

aforesaid case, it was held as follows:

“81. Therefore, keeping in view the provisions of Section  15 of the Act as interpreted by this Court in Gurprit Singh  case,  Nalini  case,  S.N.  Dube  case,  Lal  Singh  case,  Devender Pal Singh case and Jameel Ahmed case, we hold  that the appellants are guilty of offence under Section 302  read  with  Section  120-B  IPC  and  no  independent  corroboration is required for sustaining their conviction.”

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34) In  Jameel  Ahmed & Anr. vs.  State of  Rajasthan,  

(2003) 9  SCC 673,  this  Court  held that  Section 30 of  the  

Evidence Act has no role to play in deciding the admissibility  

of confession recorded under Section 15 of TADA.  This Court  

held that:

“23. …. it is relevant to note that Section 15 of the TADA  Act by the use of non obstante clause has made confession  recorded  under  Section  15  admissible  notwithstanding  anything contained in the Indian Evidence Act or the Code  of Criminal Procedure. It also specifically provides that the  confession so recorded shall be admissible in the trial of a  co-accused for  offence committed and tried in the same  case together with the accused who makes the confession.  Apart from the plain language of Section 15 which excludes  the application of Section 30 of the Evidence Act, this Court  has in many judgments in specific terms held that Section  30 of the Evidence Act has no role to play when the court  considers  the  confession  of  an  accused  made  under  Section 15 of the TADA Act either in regard to himself or in  regard to his co-accused.”

35) In  Ahmed  Hussein  Vali  (supra),  this  Court,  while  

relying  upon  Nalini  (supra),  held  that  if  the  confession  

made  by  an  accused  is  voluntary  and  true,  then  it  is  

admissible against the co-accused as a substantive piece of  

evidence,  and that  minor  and curable  irregularities  in  the  

recording of  the  confession  like  omission in  obtaining the  

certificate of competent office with respect to confession do  

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not  affect  the  admissibility  of  the  said  evidence.   It  was  

further observed:

“74. …  As  far  as  the  admissibility  of  the  confessional  statement  of  A-27  is  concerned  with  regard  to  his  co- accused  in  this  case,  it  is  not  vitiated  because  of  the  amendment and it is rightly used as a major evidence for  the trial of his co-accused by the Designated Court. As this  confessional statement was made complying with all  the  procedural essentials as provided for by the TADA Act and  the Rules it can be a valid ground for the conviction when  corroborated with the confessional statement of the other  four accused, namely, A-1, A-2, A-3 and A-20 respectively  which  have  been  made  prior  to  the  amendment  of  the  Act….”

36) In  Mohd.  Farooq  Abdul  Gafur vs.  State  of  

Maharashtra (2010) 14 SCC 641, this Court has upheld the  

conviction,  inter  alia,  relying  upon  the  confession  of  the  

accused,  as  well  as  the  confession  of  the  co-accused  in  

determining  the  guilt  of  the  accused.   The  relevant  

observations in the judgment are as under:-    

“76. The confessional statements of Accused 5 and 6 are  also  relevant  to  prove  and  establish  the  involvement  of  Accused  1  with  the  incident.  In  the  said  confessional  statement, Accused 5 had stated that on 2-3-1999, Faheem  informed Accused 5 on the phone that he would be sending  two pistols with Accused 1. In fact,  Accused 1 came to the  house of Accused 5 to deliver the said pistols.

77. It has also come out in the said confessional statement  (of Accused 5) that out of the two pistols one was not in order  and so the same was returned to Accused 1 and that on 5-3- 1999 Accused 5 called Accused 1 who informed him that he  (Accused 1) has spoken to Chhota Shakeel  over the phone  and informed him about the incident on the previous day.

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78. Accused  5  has  also  stated  in  his  confessional  statement that Accused 1  informed  him  that  Chhota  Shakeel had asked Accused 1 to pay Accused 5 some money.  Thereupon, Accused 1 paid Rs 20,000  to  Accused  5  at  Vakola and Accused 5 and 6 together informed Accused 1 that  they were going to Kolkata.

81. The High Court disbelieved the aforesaid confessional  statements of Accused 5 and 6 on the ground that the said  confessional  statements  were  inadmissible  in  evidence  thereby it  reversed the findings of the trial  court.  The High  Court came to the aforesaid conclusion on the basis that there  is  no  evidence  to  show  that  any  preliminary  warning  was  given prior  to the recording of  the confessional  statements  and that in the absence of proof of the fact that a warning was  given prior to the recording of the confessional statements,  the same were  inadmissible  in  evidence.  In  our considered  opinion the High Court ignored the fact that there is evidence  of PW 64, the typist who had deposed that the preliminary  warning was in  fact given which was so recorded on 23-7- 1999.

82. Considering the facts and circumstances of the case  we find no reason not to accept the said statement of PW 64,  the  typist.  We  also  hold  that  the  aforesaid  confessional  statement of the co-accused could be the basis of conviction  under the provisions of MCOCA.

83. We, therefore, hold Accused 1 guilty of all the charges  which were already found to be proved and established by the  trial  court  and  affirmed  by  the  High  Court.  So  far  as  the  sentence is concerned we, however, uphold and confirm the  sentence  passed  by  the  High  Court  and  also  restore  the  punishment awarded by the trial court under Section 212 read  with Section 52-A read with Section 120-B IPC.

84. So far as the conviction (of Accused 1) under MCOCA is  concerned,  it  is  quite  clear  that  conviction  could  be  based  solely on the basis of  the confessional  statement itself  and  such  conviction  is  also  permissible  on  the  basis  of  the  confessional statement of the co-accused which could be used  and relied upon for the purpose of conviction.

85. In  State v.  Nalini1 it  was  held  by  this  Court  in  the  context of Section 15  of  the  Terrorist  and  Disruptive  Activities (Prevention) Act, 1987 (now repealed), which is pari  materia with Section 18 of MCOCA that the evidence of a co- accused is admissible as a piece of substantive evidence and  in view of the non obstante clause, CrPC will not apply.”

37) It is clear that a confessional statement duly recorded by  

a Police Officer is a substantive piece of evidence and the  

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same can be relied upon in the trial of such person or of the  

co-accused,  abettor  or  conspirator  if  the  requirements  of  

Section 15 of TADA, and the rules framed thereunder are  

complied  with.   The  police  officer,  before  recording  the  

confession, has to observe the requirement of Section 15(2)  

of TADA.  A voluntary and truthful  confessional  statement  

recorded  under  Section  15  of  TADA  requires  no  

corroboration.  However, as a matter of prudence, the court  

may look for some corroboration if confession is to be used  

against  co-accused.   It  is  made  clear  that  whether  such  

confession requires corroboration or not is a matter for the  

court  to  consider  such  confession  on  the  facts  and  

circumstances of each case.  If the confession made by an  

accused is voluntary and true,  it  is admissible against co-

accused as a substantive piece of evidence and minor and  

curable  irregularities  in  recording  of  confession,  such  as  

omission in obtaining the certificate of the competent officer  

with respect to the confession do not affect the admissibility  

of the said evidence.   

Retracted Confessions:

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38) It has been contended that since the confession of the  

appellant - Sanjay Dutt (A-117) has been retracted, hence, it  

is not trustworthy and it would not be safe to place reliance  

upon  it.   It  is  settled  law  that  a  voluntary  and  free  

confession, even if later retracted, can be relied upon.  

39) In the case of the appellant - Sanjay Dutt (A-117), the  

retraction  statement  was  not  made  at  the  first  available  

opportunity.  After the recording of his confession, within 10  

days, the accused was released on bail by the High Court,  

and the accused remained free for a considerable period of  

time.   In  fact,  the judgment  delivered by the Constitution  

Bench  on  09.09.1994  also  noted  down  that  the  said  

confession  of  the  accused  remained  un-retracted.   The  

retractions were made many months after the recording of  

the confession.    

40) In  State  of  Maharashtra vs.  Bharat  Chaganlal  

Raghani, (2001) 9 SCC 1, this Court while setting aside the  

judgment  of  acquittal  recorded  by  the  Designated  TADA  

Court, observed as under:

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“58.  ….  There  is  no  denial  of  the  fact  that  the  judicial  confessions  made  are  usually  retracted.  Retracted  confessions  are  good  confessions  if  held  to  have  been  made voluntarily and in accordance with the provisions of  law…. Corroboration of the confessional statement is not a  rule of law but a rule of prudence. Whether in a given case  corroboration is sufficient would depend upon the facts and  circumstances of that case.”

41) In  Mohd.  Amin  (supra),  this  Court  considered  two  

issues, viz., (i) whether the confession of an accused can be  

relied  upon  or  used  against  the  co-accused  without  

corroboration, and (ii) whether confessional statements can  

be  relied  upon  to  convict  the  accused  in  spite  of  their  

subsequent  retraction.   It  was  held  that  in  so  far  as  the  

retraction of confessional statements is concerned, it is clear  

that the allegations of torture, coercions and threats etc. by  

accused were not raised at the first available opportunity,  

and that the retractions were made after almost a year and  

were  therefore  only  an  afterthought  and  a  result  of  the  

ingenuinty  of  their  advocates.   Accordingly,  the  retracted  

confessions were relied upon.  It was observed:-  

“If the confessions of the appellants are scrutinized in the  light  of  the above enumerated factors,  it  becomes clear  that the allegations regarding coercion, threat, torture, etc.  after more than one year of recording of confessions are an  afterthought and products of ingenuity of their advocates.  The statements made by them under Section 313 of CrPC  

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were also the result of an afterthought because no tangible  reason has been put  forward by the defence as  to why  Appellants A-4 to A-8 did not retract their confessions when  they were produced before the Magistrate at Ahmedabad  and thereafter  despite  the  fact  that  they had access  to  legal assistance in more than one way. Therefore, we hold  that  the trial  court  did  not  commit  any error  by  relying  upon the confessions of the Appellants A-4 to A-8 and A-10  and  we  do  not  find  any  valid  ground  to  discard  the  confessions of Appellants A-4 toA-8 and A-10.”        

42) In Manjit Singh vs. CBI, (2011) 11 SCC 578, this Court,  

while  considering  the  question  whether  retracted  

confessions  of  the  co-accused  could  be  relied  upon  to  

convict the accused, held that the retracted statements can  

be  used  against  the  accused  as  well  as  the  co-accused  

provided such statements were truthful and voluntary when  

made.   In  the  said  case,  two  accused  persons  made  

confessional  statements  and,  subsequently,  they retracted  

from their statements.  This Court observed:

“87. A confessional statement given under Section 15 of  TADA shall not be discarded merely for the reason that the  same has been retracted….”

It is pointed out that the confession in the present case was  

truthful and voluntary and has been recorded after strictly  

following  the  law  and  the  prescribed  procedure,  the  

subsequent  retraction  and  denial  of  such  confessional  

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statements in the statement of the accused under Section  

313 was only as a result of an afterthought.

Corroboration of Confession:

43) A contention was raised by learned senior counsel for  

the appellant that there was no sufficient corroboration of  

the confessional statements made by the accused.  In reply  

to  the  above,  the  prosecution  relied  upon  the  following  

decisions:-   

44) In  Wariyam Singh vs.  State of U.P.,  (1995) 6 SCC  

458,  this  Court  relied  upon  the  confession  made  by  an  

accused for convicting him.  The confession was alleged to  

have been fabricated.  In para 16 of the judgment, it was  

held that a part of the confession stood corroborated by the  

testimony of a witness, and hence there was no reason to  

believe that the confession was fabricated.  This Court held  

that the allegation of  the confession being fabricated was  

without any basis  and the confession could be taken into  

account while recording the conviction.  

45) In  S.N. Dube vs.  N.B. Bhoir & Ors.,  (2000) 2  SCC  

254, this Court in para 34 observed that the confessions of  

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two accused being  substantive  evidence are  sufficient  for  

considering them and it also received corroboration from the  

confessions of other accused and also general corroboration  

as  regards  the  other  illegal  activities  committed  by  them  

from the evidence of other witnesses.  On the basis of these  

confessional  statements,  this Court reversed the orders of  

acquittal passed by the High Court.  

46) In Lal Singh vs. State of Gujarat, (2001) 3 SCC 221,  

this Court upheld the conviction of the accused on the basis  

of the confessions.   It  was held that the Nation has been  

‘facing  great  stress  and  strain  because  of  misguided  

militants  and  cooperation  of  the  militancy’  which  was  

affecting the social security, peace and stability.  Since the  

knowledge  of  the  details  of  such  terrorist  conspiracies  

remains with the people directly involved in it and it is not  

easy to prove the involvement of all the conspirators, hence,  

the confessional statements are reliable pieces of evidence.  

This Court, in para 84, observed as under:

“84. ….. Hence, in case of conspiracy and particularly such  activities,  better  evidence  than  acts  and  statements  including  that  of  co-conspirators  in  pursuance  of  the  conspiracy is hardly available. In such cases, when there is  

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confessional  statement  it  is  not  necessary  for  the  prosecution  to  establish  each  and  every  link  as  confessional  statement  gets  corroboration  from  the  link  which is proved by the prosecution. In any case, the law  requires establishment of such a degree of probability that  a prudent man may on its basis, believe in the existence of  the facts in issue. For assessing evidence in such cases,  this Court in  Collector of Customs v.  D. Bhoormall dealing  with  smuggling  activities  and  the  penalty  proceedings  under Section 167 of the Sea Customs Act, 1878 observed  that  many facts  relating to illicit  business remain in  the  special or peculiar knowledge of the person concerned in it  and held thus: (SCC pp. 553-55, paras 30-32 and 37)

“30.  ...  that the prosecution or the Department is not  required to prove its case with mathematical precision  to  a  demonstrable  degree;  for,  in  all  human  affairs  absolute  certainty  is  a  myth,  and—as  Prof.  Brett  felicitously puts it — ‘all exactness is a fake’. El Dorado  of absolute proof being unattainable, the law accepts for  it probability as a working substitute in this work-a-day  world.  The  law  does  not  require  the  prosecution  to  prove  the  impossible.  All  that  it  requires  is  the  establishment  of  such  a  degree  of  probability  that  a  prudent man may, on its basis, believe in the existence  of the fact in issue. Thus, legal proof is not necessarily  perfect proof; often it is nothing more than a prudent  man's estimate as to the probabilities of the case. 31.  The  other  cardinal  principle  having  an  important  bearing  on  the  incidence  of  burden  of  proof  is  that  sufficiency  and  weight  of  the  evidence  is  to  be  considered  —  to  use  the  words  of  Lord  Mansfied  in  Blatch v. Archar (1774) 1 Cowp 63: 98 ER 969 (Cowp at  p. 65) ‘according to the proof which it was in the power  of one side to prove, and in the power of the other to  have contradicted’.”

47) In  State  of  Maharashtra vs.  Bharat  Chaganlal  

Raghani,  (2001) 9 SCC 1, this Court mainly relied on the  

confessional  statements  of  the  accused  which  were  also  

retracted.   It  was  held  that  there  was  sufficient  general  

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corroboration of  the confessional  statements made by the  

accused.   The  Court  found  sufficient  corroboration  in  the  

testimony of the witnesses and the recoveries pursuant to  

the statements given by the accused.  It was also held that  

once the confessional statements were found to have been  

made  voluntarily,  the  test  identification  parade  was  not  

significant.  It was further held that corroboration is not a  

rule of law but a rule of prudence.  

48) In  Devender Pal Singh vs.  State of NCT of Delhi,  

(2002) 5 SCC 234, this Court was considering, among other  

things,  whether  the  accused  making  the  confessional  

statement can be convicted on the basis of the confession  

alone without any corroboration.  It was held that once it is  

found that the confessional statement is voluntary, it is not  

proper  to  hold  that  the  police  had  incorporated  certain  

aspects in the confessional statement which were gathered  

during the investigation conducted earlier.  It was held that  

the  so-called  retraction  by  the  appellant,  was  made  long  

after he was taken into judicial custody.   

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49) In Ravinder Singh vs. State of Maharashtra, (2002)  

9 SCC 55, this Court held that a confession does not require  

any corroboration if it relates to the accused himself.  It was  

further  held  that  there  was  enough  evidence  to  provide  

general corroboration to the confessional statement.  It was  

also held that minor contradictions in the statements of the  

accused were of no consequence once the confessions were  

held to be reliable.

50) In  Jameel Ahmed vs.  State of Rajasthan, (2003) 9  

SCC 673, the position of law was summed up by this Court as  

follows:

“35. …..(i)  If  the  confessional  statement  is  properly  recorded, satisfying the mandatory provision of Section 15  of the TADA Act and the Rules made thereunder, and if the  same  is  found  by  the  court  as  having  been  made  voluntarily  and  truthfully  then  the  said  confession  is  sufficient  to  base  a  conviction  on  the  maker  of  the  confession.

(ii) Whether such confession requires corroboration or not,  is  a matter for the court  considering such confession on  facts of each case.

(iii) In regard to the use of such confession as against a co- accused, it has to be held that as a matter of caution, a  general  corroboration  should  be sought  for  but  in  cases  where  the  court  is  satisfied  that  the  probative  value  of  such  confession  is  such  that  it  does  not  require  corroboration then it may base a conviction on the basis of  such confession of the co-accused without corroboration.  

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But this  is  an exception to the general  rule  of  requiring  corroboration when such confession is to be used against a  co-accused.

(iv) The nature of corroboration required both in regard to  the use of confession against the maker as also in regard  to the use of the same against a co-accused is of a general  nature, unless the court comes to the conclusion that such  corroboration should be on material facts also because of  the facts of a particular case. The degree of corroboration  so required is that which is necessary for a prudent man to  believe  in  the  existence  of  facts  mentioned  in  the  confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the TADA  Rules which contemplates a confessional statement being  sent  to  the  Chief  Metropolitan  Magistrate  or  the  Chief  Judicial Magistrate who, in turn, will have to send the same  to  the  Designated  Court  is  not  mandatory  and  is  only  directory. However, the court considering the case of direct  transmission  of  the  confessional  statement  to  the  Designated Court should satisfy itself on facts of each case  whether  such  direct  transmission  of  the  confessional  statement in the facts of the case creates any doubt as to  the genuineness of the said confessional statement.”

51) In  Nazir Khan vs.  State of Delhi, (2003) 8 SCC 461,  

this court held that the confessional statements made by the  

co-accused can be used to convict a person, and that it is  

only as a rule of  prudence that  the Court  should look for  

corroboration elsewhere.  It was held that:

“27. Applying the principles which can be culled out from  the principles  set out above to the factual  scenario,  the  inevitable conclusion is that the trial court was justified in  its  conclusions  by  holding  the  accused-appellants  guilty.  When an accused is a participant in a big game planned,  he cannot take the advantage of being ignorant about the  finer  details  applied  to  give  effect  to  the  conspiracy  

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hatched, for example, A-7 is stated to be ignorant of the  conspiracy  and  the  kidnapping.  But  the  factual  scenario  described by the co-accused in  the statements recorded  under  Section  15  of  the  TADA  Act  shows  his  deep  involvement  in  the  meticulous  planning  done  by  Umar  Sheikh.  He  organized  all  the  activities  for  making  arrangements for the accused and other terrorists.

52) In  Sukhwant Singh vs.  State, (2003) 8 SCC 90, this  

Court  upheld  the  conviction  solely  on  the  basis  of  the  

confession of the co-accused, without any corroboration, that  

too  in  a  situation  where  the  accused  himself  had  not  

confessed.   The judgment  in  the case of  Jameel Ahmed  

(supra) was relied upon.  It was held:  

“3. In the present case we are aware of the fact that the  appellant has not made any confessional statement nor is  there any corroboration of  the confessional  statement of  the co-accused implicating this appellant from any other  independent source but then we have held in the above- reported case that if the confessional statement of a co- accused  is  acceptable  to  the  court  even  without  corroboration then a confession of a co-accused can be the  basis of conviction of another accused so implicated in that  confession. Therefore the fact that the appellant herein has  not  confessed  or  the  confessional  statements  made  implicating  him  by  A-1  and  A-2  are  not  independently  corroborated, will not be a ground to reject the evidence  produced by the prosecution in the form of  confessional  statement  of  co-accused  provided  the  confession  relied  against the appellant is acceptable to the court.”

53) In Mohammed Amin (supra), this Court convicted the  

accused on the basis of their confessions and confessional  

statements  of  co-accused.   It  was  held  that  there  is  no  

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requirement of corroboration if the confessions are proved to  

be  made voluntarily,  and the  Rules  applicable  have  been  

complied with.  The following observations are pertinent:

“31. The ratio  of  the abovenoted judgments is  that if  a  person  accused  of  an  offence  under  the  Act  makes  a  confession  before  a  police  officer  not  below the rank of  Superintendent of Police and the same is recorded by the  officer concerned in writing or on any mechanical device  like  cassettes,  tapes  or  sound tracks  from out  of  which  sounds or images can be reproduced, then such confession  is  admissible  in  the  trial  of  the  maker  as  also  the  co- accused,  abettor  or  conspirator  not  only  for  an  offence  under  the  Act  but  also  for  offence(s)  under  other  enactments,  provided  that  the  co-accused,  abettor  or  conspirator  is  charged and tried in the same case along  with  the  accused  and  the  court  is  satisfied  that  requirements of the Act and the Rules have been complied  with.  Whether  such  confession  requires  corroboration  depends  on  the  facts  of  the  given  case.  If  the  court  is  convinced  that  the  probative  value  of  the  confession  is  such that it does not require corroboration then the same  can  be  used  for  convicting  the  maker  and/or  the  co- accused  under  the  Act  and/or  the  other  enactments  without independent corroboration.”

54) In  Mohd.  Ayub  Dar vs.  State  of  Jammu  and  

Kashmir, (2010) 9 SCC 312, it was held that even though  

the  guidelines  in  Kartar  Singh  (supra),  have  not  been  

strictly followed, the confession of the accused recorded is  

admissible  against  him  and  can  be  relied  upon  solely  to  

convict  him.   The following observations of  this  Court  are  

pertinent:

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“59. It would, therefore, be clear, as rightly contended by  Shri  Rawal  that merely because the guidelines  in  Kartar  Singh v.  State of Punjab were not fully followed, that by  itself does not wipe out the confession recorded. We have  already given our reasons for holding that the confession  was  recorded  by  A.K.  Suri  (PW  2)  taking  full  care  and  cautions  which  were  required  to  be  observed  while  recording the confession.

60. In Ravinder Singh v.  State of Maharashtra it has been  observed in  para 19 that  if  the confession made by the  accused  is  voluntary  and  truthful  and  relates  to  the  accused himself, then no further corroboration is necessary  and a conviction of the accused can be solely based on it.  It has also been observed that such confessional statement  is  admissible  as a  substantive piece of  evidence.  It  was  further  observed  that  the  said  confession  need  not  be  tested for the contradictions to be found in the confession  of  the  co-accused.  It  is  for  that  reason that  even if  the  other oral evidence goes counter to the statements made  in  the  confession,  one's  confession  can  be  found  to  be  voluntary and reliable and it can become the basis of the  conviction.

61. In  this  case,  there  is  ample  corroboration  to  the  confession in the oral evidence as well as the documentary  evidence in shape of a chit, which is referred to in the said  confession.  There  is  a  clear  reference  that  the  Personal  Assistant, who was a non-Kashmiri and kept a beard, had  sent a slip inside.  Ultimately, that slip was found by the  police, which corroborates the contents in the confession.  In  our  opinion,  that  is  a  sufficient  corroboration  to  the  confession.

64. All  these cases suggest that the only test which the  court has to apply is whether the confession was voluntary  and free of  coercion,  threat  or  inducement and whether  sufficient  caution  is  taken  by  the  police  officer  who  recorded the confession. Once the confession passes that  test,  it  can become the basis  of  the conviction.  We are  completely convinced that the confession in this case was  free  from  all  the  aforementioned  defects  and  was  voluntary.”

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55) In Manjit  Singh vs.  CBI,  (2011)  11  SCC  578,  the  

following  observations  of  this  Court  regarding  the  

admissibility of confessional statements are pertinent:-

91. In  Ravinder Singh case, the Court relying on  State v.  Nalini,  S.N.  Dube v.  N.B.  Bhoir and  Devender  Pal  Singh v.  State (NCT of Delhi), held that: (Ravinder Singh case, SCC p.  59, para 17)

“17.  It  is  thus  well  established  that  a  voluntary  and  truthful confessional statement recorded under Section 15  of the TADA Act requires no corroboration.”

This  apposite  observation  by  the  Bench  of  two  learned  

Judges  in  Ravinder  Singh  case  (supra) should  be  

considered with  measured caution and we believe,  taking  

into account the ground realities that it would be prudent to  

examine the authenticity of a confession on a case-by-case  

basis.

56) The  corroboration  as  required  in  the  abovesaid  

judgment can also be found in the case at hand, both in the  

nature of substantive evidence in the form of the confessions  

of  the  co-accused,  as  well  as  in  the  oral  testimony  of  

witnesses, including the eye witnesses to the incident who  

have identified the appellant-Sanjay Dutt (A-117), as well as  

the co-accused persons, viz., A-41 and A-53.

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57) Apart from the evidence contemporaneous to the arrest  

of the abovesaid three accused and the recovery made from  

A-124  and  subsequent  recovery  at  the  instance  of  A-124  

from A-120,  are  also  relevant  in  respect  of  all  the  three  

abovenamed appellants.

58) It is clear that the sequence of events after the arrest of  

Sanjay Dutt till the recovery of pistol from A-120, forms part  

of an unbroken chain inseparably connected to each other.  

No foul  play can be assumed in view of the fact that the  

events  happened in quick succession one after  the other,  

lending  credibility  and  truthfulness  to  the  whole  episode.  

The role and the part played by A-118 and A-124 is also clear  

from the evidence relied upon by the prosecution in respect  

of  A-117,  which  corroborates  with  each  other  in  material  

particulars and is thus a substantive piece of evidence.   

Deposition of Prosecution Witnesses:

59) Apart  from the aforesaid evidence,  the involvement and  

the role of the appellant in the conspiracy as stated above is  

disclosed  by  the  deposition  of  various  prosecution  witnesses  

which are as follows:

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

PW-193, the then DCP, deposed as under with regard to  

the confession made by A-117:-

(i) On  26.04.1993,  at  about  3:15  p.m.,  A-117  was  

produced by A.P.I. Shri Sanjay Kadam before him in the  

room given by Senior P.I. Shri Kumbhar, in the office of  

DCB, CID, Crime Branch, for recording of his confession  

and he took the proceedings by asking A-117 certain  

questions  in  English  and  during  the  same,  amongst  

other replies given by him, he told him that he wanted  

to make a statement.   

(ii) During  the  said  proceedings,  amongst  other,  he  had  

explained to A-117, that he was not bound to make a  

confession and the same can be used against him in  

evidence  and  when  A-117  still  intended  to  give  the  

confession,  PW-193  gave  him  48  hours  time  to  

reconsider his decision.

(iii) Exhibit  868 being the true and correct  record of  the  

said proceedings made by him with the help of a typist  

in  his  presence  which  was  read  over  to  A-117  and  

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confirmed by him as of being correctly recorded, and  

bearing the signatures of A-117 as well as of PW-193.

(iv) On 28.04.1993, at about 16:00 hours, A-117 was again  

produced before P.W. 193 in the chamber of Senior P.I.  

DCB,CID, in the office of Crime Branch, C.P. office by  

A.P.I.  Shri  S.A.  Khere for  further  proceedings,  and he  

followed  all  the  procedures  mentioned  above  and  

recorded the same which is Exh. 868-A.  

(v) PW-193 deposed that A-117 confessed that he already  

had three licensed firearms.

(vi) He developed acquaintance with Anees Ibrahim-brother  

of Dawood Ibrahim during a film-shooting

(vii) He expressed his desire to have an automatic fire-arm  

to Samir Hingora (A-53) and Hanif Kandawala (A-40).

(viii) Sanjay Dutt was already acquainted with Salem and he  

had assured him of delivery of the weapons.

(ix) With the help of above named persons, 3 AK-56 Rifles  

and 250 rounds were delivered to A-117.

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(x) After  2  days,  he  returned  2  AK-56  rifles  and  

ammunitions,  and  retained  1  AK-56  and  some  

ammunition.

(xi) A-117 kept the same in a handbag and placed it in the  

private hall on the 2nd floor of his bungalow.

(xii) On  hearing  the  news  of  the  arrest  of  co-accused  

persons,  viz.,  Samir  Hingora  (A-53)  and  Hanif  

Kandawala (A-40), A-117 contacted Yusuf Nulwalla over  

telephone and asked him that something is lying in a  

black coloured bag kept in the hall on the second floor  

of his house, and it should be taken away immediately  

and to destroy the objects completely.

(v) He was picked up by the police as soon as he landed  

at Bombay.   

Deposition of PW-193 with regard to the confession  made by A-118:-

(i) A-118 is an old and well known friend of Sanjay Dutt (A-

117).

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(ii) In  the  month  of  April,  when  Sanjay  Dutt  was  in  

Mauritius, A-118 was asked to destroy certain objects  

kept at his residence.  

(iii) On reaching there, he discovered one AK-56 rifle, two  

empty magazines, approximately 250 rounds of AK-56,  

one pistol and one loaded magazine.   

(iv) A-118 cutted  the  rifle  into  pieces  with  the  help  of  a  

hexa-cutting machine.   

(v) A-118 took all  those things to Kersi  Adajania (A-124),  

who was having a gas-cutter, in order to melt the same.

(vi) A-118 caused disappearance of evidence of an offence  

which  were  also  unauthorisedly  possessed  automatic  

firearms/weapons.

(vii) Next day, he informed A-117 about the completion of  

the work assigned to him.

Deposition of PW-193 with regard to the confession  made by A-124:-

(i) A-124 was very well acquainted with A-117 and A-118.

(ii) A-124 had his workshop in his house where he kept all  

his tools including the gas cutter.

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(iii) A-118  contacted  A-124  and  said  that  he  wanted  to  

destroy AK-56 and a pistol belonging to Sanjay Dutt (A-

117).

(iv) A-124 permitted him to do so.

(v) A-124 personally destroyed AK-56.

(vi) A-124 kept with himself the pistol.

Deposition of Pandharinath H. Shinde (PW-218)

The deposition reveals as under:

(i) On 11.01.1993,  he was posted on guard duty at  the  

bunglow of Sunil Dutt at Pali Hill, Khar, Bombay.  

(ii) He  had  worked  as  a  Protection  Guard  at  the  said  

bunglow  from 11.01.1993  to  19.01.1993.  He  was  on  

duty during that period for 24 hours.

(iii) On the said day, at about 7:30 a.m., one white maruti  

van came to gate No. 2 of the said bunglow and three  

persons were sitting in the said van.  

(iv) He identified Ibrahim Musa Chauhan (A-41) and Samir  

Hingora (A-53) as the persons who were sitting at the  

back of the said van.

Deposition of Manohar Vasudev Shirodkar (PW-219)

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At the relevant time, PW-219 was Senior Inspector of  

Police  at  Khar  Police  Station,  Bombay.   His  deposition  

establishes that PW-218 was posted on Protection Duty at  

the bunglow of Sunil Dutt.

Deposition of Suresh S. Walishetty (PW-680)

PW-680, the Investigating officer revealed as under:-

(i) He  deposed  that  Sanjay  Dutt  (A-117)  expressed  his  

desire to make a voluntary statement.  Thereafter,  he  

instructed  his  staff  to  make  arrangement  of  two  

persons to act  as panch witnesses.  The said persons  

were Shri Tavade and Shri Sawant (PW 211).

(ii) PW-680 instructed Shri Rajaram Ramchandra Joshi (PW-

475),  Assistant  Inspector  of  Police  to  record  the  

panchnama.  

(iii) Sanjay  Dutt  made  a  voluntary  statement  in  Hindi  

Language,  which  was  recorded  in  the  memorandum  

Panchnama Exhibit 1068  by PW-475.  

(iv) As per the said disclosure, Sanjay Dutt led the Police  

party to the House of Yusuf Nulwala (A-118).  

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(v) Yusuf Nulwala was produced by the officers of Dongri  

police station after about half an hour after their return  

to the office of DCB-CID.  

(vi) Yusuf Nulwala made a disclosure statement and led the  

police party to the house of Kersi Adajania (A-124).  

(vii) Kersi  Adajania  made  a  disclosure  statement  and  

produced a spring and a rod which was seized by the  

police and also led the Police party to A-125.

(viii)  A-125 made a disclosure statement and led the police  

party to the House of A-120 wherefrom a pistol and its  

rounds were recovered.  

Deposition of Rajaram Ramchandra Joshi (PW-475)

At  the  relevant  time,  PW-475  was  working  as  the  

Assistant  Inspector  of  Police.   In  his  deposition,  he  

corroborates with the deposition of PW-680 that he assisted  

him in the investigation relating to Sanjay Dutt and others.  

Deposition of Shashikant Rajaram Sawant (PW-211)

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PW-211 acted as an independent witness and proved the  

disclosure statements made by the appellants pointing out  

the recoveries therefrom. The deposition reveals as under:

(i) At about 3:00 p.m., he alongwith Tawade was asked by  

3-4 havaldars to act as panch witnesses to which they  

agreed.

(ii) They were taken to the office of the Crime Branch at  

Crawford Market.

(iii) He saw Sanjay Dutt present in the said police station.

(iv) He was asked to hear what Sanjay Dutt had to say.

(v) He refers to the disclosure made by Sanjay Dutt to the  

police.

(vi) Panchnama was drawn by Joshi Saheb (PW-475).  

(vii) Sanjay Dutt led the police party to the house of Yusuf  

Nulwalla (A-118).  

(viii) He proved the Panchnama Exhibit 1068-A.

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(ix) Yusuf Nulwala was produced by the two constables who  

was then arrested by Wallishetty (PW-680).

(x) The  witness  proved  the  statement  made  by  Yusuf  

Nulwala to the Police.  

(xi) Yusuf Nulwala lead the police party to the house of A-

124 who was then arrested by the Police.

(xii) Kersi made a disclosure statement.

(xiii) The witness proved the Panchnama Exhibit 1068-C.

(xiv) He  also  identified  the  articles,  viz.,  the  Rod  and  the  

spring produced by A-124.

(xv) Kersi led the police party to Rusi Mulla (A-125).

(xvi) Rusi Mulla led the Police party to Ajay Marwah (A-120).

(xvii)Ajay  Marwah  produced  the  bag  containing  a  pistol  

loaded with Magazine.  

(xix) The witness also proved the panchnama Exh. 1068-E.

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Deposition of Gangaram Bajoji (PW-265)

PW-265 acted as an independent witness and proved  

Exhibit  Nos.  1100,  1100A,  1101  and  1101  A.  In  his  

deposition, he reveals as under:-

(i) The  witness  was  approached  on  1.5.1993  by  Police  

Havaldars  to  act  as  Panch  witnesses  to  which  he  

agreed.  He  went  to  the  Crime  Branc-CID,  Crawford  

market.  

(ii) He met PW 680 and PW 475 there.

(iii) Kersi Adajenia made a statement.

(iv) Pursuant  to  the  said  statement,  Kersi  Adajenia  

produced Gas Cylinder, Gas Cutter, from his workplace-

Factory.

(v) Police seized those articles vide seizure memo Exhibit  

1100A.  

(vi) Upon  his  return  to  the  Police  station,  Yusuf  Nulwala  

made a statement before him, PW 680 and PW 475.

(vii) A panchnama was drawn as Exhibit 1101.  

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(viii) The said accused led the Police party to marine drive  

and  asked  the  jeep  to  be  halted  in  front  of  Shanti  

Niketan building.  

(ix) The accused then took the police party to the stoney  

area and took out a plastic bag concealed in the gap of  

one of the stones. He handed over the same to PW 680.  

The said bag was found to be containing 53 bullets and  

he also proved Exhibit 1101A.

Deposition of Karmegam Alagappan (PW-472)

The deposition of PW 472 reveals as under:

(i) The  call  records  of  Telephone  No.  6462786  were  

provided by him.  

(ii) Out  of  7-8  numbers  provided  by  the  Investigating  

officer, only 6462786 has STD and ISD calls.  

(iii) X 572 contains the printout of call records provided by  

him.  

(iv) After the objections were decided, the said call records  

were marked as Exhibit 2532 collectively.  

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60) The  entire  sequence  of  abovesaid  events  have  been  

proved Shri Suresh S. Walishetty (PW-680)-the Investigating  

Officer  and  Sh.  Rajaram  Ramchandra  Joshi  (PW-475)-the  

Assistant Inspector of Police.  The above said incident has  

also been witnessed and proved by an independent witness,  

viz. PW-211.  Further, the credibility of the witness has not  

been shaken despite vigorous cross examination.

Section 27 of the Indian Evidence Act:

61) This  Court,  while  dealing  with  the  law  relating  to  

Section 27 of the Indian Evidence Act observed about the  

possibility and plausibility of such recoveries as followed in  

State (NCT of Delhi) vs.  Navjot Sandhu, (2005) 11 SCC  

600 which are as under:-

“142.  There  is  one  more  point  which  we  would  like  to  discuss  i.e.  whether  pointing  out  a  material  object  by  the  accused  furnishing  the  information  is  a  necessary  concomitant of Section 27. We think that the answer should  be in the negative. Though in most of the cases the person  who makes the disclosure himself leads the police officer to  the place where an object  is  concealed and points  out  the  same to him, however, it is not essential that there should be  such pointing out in order to make the information admissible  under Section 27. It could very well be that on the basis of  information furnished by the accused, the investigating officer  may go to the spot in the company of other witnesses and  recover  the  material  object.  By  doing  so,  the  investigating  officer will  be discovering a fact viz. the concealment of an  

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incriminating  article  and  the  knowledge  of  the  accused  furnishing the information about it. In other words, where the  information furnished by the person in custody is verified by  the  police  officer  by  going  to  the  spot  mentioned  by  the  informant and finds it to be correct, that amounts to discovery  of  fact  within  the  meaning  of  Section  27.  Of  course,  it  is  subject to the rider that the information so furnished was the  immediate  and  proximate  cause  of  discovery.  If  the  police  officer chooses not to take the informant accused to the spot,  it  will  have  no  bearing  on  the  point  of  admissibility  under  Section 27, though it may be one of the aspects that goes into  evaluation of that particular piece of evidence.

145. Before parting with the discussion on the subject of  confessions  under  Section  27,  we  may  briefly  refer  to  the  legal position as regards joint disclosures. This point assumes  relevance in the context of such disclosures made by the first  two  accused  viz.  Afzal  and  Shaukat.  The  admissibility  of  information  said  to  have  been  furnished  by  both  of  them  leading  to  the  discovery  of  the  hideouts  of  the  deceased  terrorists  and the recovery  of  a  laptop computer,  a mobile  phone and cash of Rs 10 lakhs from the truck in which they  were found at Srinagar is in issue. Learned Senior Counsel Mr  Shanti  Bhushan  and  Mr  Sushil  Kumar  appearing  for  the  accused contend, as was contended before the High Court,  that the disclosure and pointing out attributed to both cannot  fall within the ken of Section 27, whereas it is the contention  of Mr Gopal Subramanium that there is no taboo against the  admission  of  such  information  as  incriminating  evidence  against both the accused informants. Some of the High Courts  have taken the view that the wording “a person” excludes the  applicability of the section to more than one person. But, that  is too narrow a view to be taken. Joint disclosures, to be more  accurate,  simultaneous  disclosures,  per  se,  are  not  inadmissible under Section 27. “A person accused” need not  necessarily be a single person, but it could be plurality of the  accused. It  seems to us that the real reason for not acting  upon the joint disclosures by taking resort to Section 27 is the  inherent  difficulty  in  placing  reliance  on  such  information  supposed to have emerged from the mouths of two or more  accused at a time. In fact, joint or simultaneous disclosure is a  myth, because two or more accused persons would not have  uttered informatory words in a chorus.  At best,  one person  would have made the statement orally and the other person  would  have  stated  so  substantially  in  similar  terms  a  few  seconds or minutes later, or the second person would have  

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given  unequivocal  nod  to  what  has  been  said  by  the  first  person.  Or,  two  persons  in  custody  may  be  interrogated  separately and simultaneously and both of them may furnish  similar information leading to the discovery of fact. Or, in rare  cases,  both  the  accused  may  reduce  the  information  into  writing and hand over the written notes to the police officer at  the same time. We do not think that such disclosures by two  or more persons in police custody go out of the purview of  Section  27 altogether.  If  information  is  given one after  the  other without any break, almost simultaneously, and if such  information is followed up by pointing out the material thing  by  both  of  them,  we find  no  good  reason  to  eschew such  evidence from the regime of Section 27. However, there may  be practical difficulties in placing reliance on such evidence. It  may be difficult for the witness (generally the police officer),  to  depose  which  accused  spoke  what  words  and  in  what  sequence.  In  other  words,  the  deposition  in  regard  to  the  information  given  by  the  two  accused  may be  exposed  to  criticism from the standpoint of credibility and its nexus with  discovery.  Admissibility  and  credibility  are  two  distinct  aspects, as pointed out by Mr Gopal Subramanium. Whether  and to what extent such a simultaneous disclosure could be  relied upon by the Court is really a matter of evaluation of  evidence……”  

It was contended that under Section 27 of the Evidence  

Act, only recovery of object is permissible and identification  

of the person instead of the place where the article is to be  

found cannot attract the provisions of Section 27.   

62) The very same situation has been considered by this  

Court  in  Jaffar  Hussain  Dastagir vs.  State  of  

Maharashtra, (1969) 2 SCC 872, 875 wherein the following  

observations are pertinent:-   

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“4…..In  order  that  the  section  may  apply  the  prosecution  must establish that the information given by the appellant led  to the discovery of some fact deposed to by him. It is evident  that the discovery must be of some fact which the police had  not  previously  learnt  from  other  sources  and  that  the  knowledge of the fact was first derived from information given  by the accused. If the police had no information before of the  complicity of Accused 3 with the crime and had no idea as to  whether  the  diamonds  would  be  found  with  him  and  the  appellant had made a statement to the police that he knew  where the diamonds were and would lead them to the person  who  had  them,  it  can  be  said  that  the  discovery  of  the  diamonds with the third accused was a fact deposed to by the  appellant  and  admissible  in  evidence  under  Section  27.  However,  if  it  be  shown that  the  police  already knew that  Accused 3 had got the diamonds but did not know where the  said  accused  was  to  be  found,  it  cannot  be  said  that  the  information given by the appellant that Accused 3 had the  diamonds and could be pointed out in a large crowd at the  waiting  hall  led  to  the  discovery  of  a  fact  proving  his  complicity with any crime within the meaning of Section 27.  The  fact  deposed  to  by  him  would  at  best  lead  to  the  discovery of the whereabouts of Accused 3.

5. Under  Section  25  of  the  Evidence  Act  no  confession  made by an accused to a police officer can be admitted in  evidence  against  him.  An  exception  to  this  is  however  provided by Section 26 which makes a confessional statement  made before a Magistrate admissible in evidence against an  accused notwithstanding the fact that he was in the custody  of  the  police  when  he  made  the  incriminating  statement.  Section 27 is a proviso to Section 26 and makes admissible so  much  of  the  statement  of  the  accused  which  leads  to  the  discovery of a fact deposed to by him and connected with the  crime, irrespective of the question whether it is confessional  or otherwise. The essential ingredient of the section is that  the  information  given  by  the  accused  must  lead  to  the  discovery  of  the  fact  which  is  the  direct  outcome  of  such  information.  Secondly,  only  such portion  of  the  information  given  as  is  distinctly  connected  with  the  said  recovery  is  admissible against the accused. Thirdly, the discovery of the  fact  must  relate  to  the  commission  of  some  offence.  The  embargo on statements of the accused before the police will  not apply if all the above conditions are fulfilled. If an accused  charged with a theft  of  articles or  receiving stolen articles,  within the meaning of Section 411 IPC states to the police, “I  will  show you  the  articles  at  the  place  where  I  have  kept  

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them” and the articles are actually found there, there can be  no  doubt  that  the  information  given  by  him  led  to  the  discovery of a fact i.e. keeping of the articles by the accused  at the place mentioned. The discovery of the fact deposed to  in  such a case is  not  the discovery of  the articles  but  the  discovery  of  the  fact  that  the  articles  were  kept  by  the  accused  at  a  particular  place.  In  principle  there  is  no  difference between the above statement and that made by  the appellant in this case which in effect is that “I will show  you the person to whom I have given the diamonds exceeding  200  in  number”.  The  only  difference  between  the  two  statements is that a “named person” is substituted for “the   place”  where  the  article  is  kept.  In  neither  case  are  the   articles or the diamonds the fact discovered.”

Recoveries:

63) The rod and the spring recovered from the possession  

of  A-124  were  sent  to  FSL  for  examination.   The experts  

opined that the said articles correspond to that of an AK-56  

type rifle, but did not correspond to similar components used  

in AK-47 rifle.

64)  The independent witness was given a tape to measure  

the rod, and the measurement came to be 15 inches which  

is not one and a half feet, as was recorded and deposed to  

by the prosecution witness.  A contention was also raised  

with regard to the removal of the seal from the packet.  The  

requisition and the report show that the seal on the packet  

containing  the  object  was  perfect  and  had  not  been  

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tempered with. In that event, the said anomaly may not be  

of much consequence.   

65) The  prosecution  has  also  established  through  one  

independent witness PW-265 that A-118 and A-124 further  

made statement to the police and pursuant whereof the gas  

cylinder  used  in  destroying  AK-56  was  recovered  at  the  

instance  of  A-124  and  some of  the  ammunition  of  AK-56  

were recovered at the instance of A-118.   

66) The relevant confession of A-53, wherein he stated that  

when  they  reached  the  house  of  Sanjay  Dutt,  he  was  

speaking to Anees over  phone,  the said call  details  along  

with a certified copy of the relevant directory which contains  

the telephone number of Anees Ibrahim in Dubai has been  

filed.  The call  record was pertaining to  Tel.  No.  6462786.  

Exh.  No.  X-572  shows  that  the  said  number  belongs  to  

Sanjay Dutt.  The United Arab Emirates’ Telephone Directory  

which is also exhibited indicates the number as 448585 in  

the name of Anees Shaikh Ibrahim.

67) It was contended on behalf of Sanjay Dutt that since he  

has been acquitted of all the charges, the confession ought  

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not to have been relied upon for convicting him for offences  

other  than  TADA  offences.   The  answer  to  the  said  

contention lies in reading together the two judgments of the  

Constitution  Bench  of  this  Court.   One  is  in  the  case  of  

Sanjay Dutt (II) (supra) wherein this Court considered the  

entire case of the appellant-Sanjay Dutt at that stage and  

opined  that  although  the  offence  is  complete  by  the  

unauthorized possession of a weapon in the notified area, a  

defence would be available to the accused to be taken at the  

time of the trial and the Trial Court can consider the same by  

virtue of Section 12 of TADA.  The other case is of Prakash  

Kumar (supra),  wherein  this  Court  held  that  even if  the  

accused was to be acquitted of the TADA charges, still in a  

joint  trial,  the  confessions  recorded  under  Section  15  of  

TADA can be relied upon in respect of the said accused.  It  

was further  held  that  the stage at  which the trial  can be  

separated  is  at  the  stage  of  cognizance  and  not  

subsequently.   

68) The following observation of this Court in the abovesaid  

judgment is as under:-

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In Sanjay Dutt (Supra), this Court held:-

 “27. There is no controversy about the facts necessary to  

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

28. The non-obstante clause in Section 5 of the TADA Act  shows that within a notified area, the general law relating to  unauthorised  possession  of  any  of  the  specified  arms  and  ammunition etc. is superseded by the special enactment for  that  area,  namely,  the  TADA  Act.  If  however  the  third  ingredient  to constitute the offence under Section 5 of  the  TADA  Act  is  negatived  by  the  accused  while  the  first  two  ingredients  are  proved  to  make  out  an  offence  punishable  under  the  general  law,  namely,  the  Arms  Act,  then  the  Designated Court is empowered to deal with the situation in  accordance with Section 12 of the TADA Act. Section 12 itself  shows that Parliament envisaged a situation in which a person  tried under the TADA Act of any offence may ultimately be  found to have committed any other offence punishable under  any other law and in that situation, the Designated Court is  empowered to punish the accused for the offence under such  other  law.  The offence under Section  5 of  the TADA Act  is  graver and visited with more severe punishment as compared  to the corresponding offence under the general law. This is  because of the greater propensity of misuse of such arms and  

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ammunition  etc.  for  a  terrorist  or  disruptive  act  within  a  notified  area.  If  the  assumed  propensity  of  such  use  is  negatived by the accused, the offence gets reduced to one  under the general law and is punishable only thereunder. In  such a situation, the accused is punished in the same manner  as any other person found to be in unauthorised possession of  any such arms and ammunition etc. outside a notified area.  The presumption in law is of the greater and natural danger  arising from its unauthorised possession within a notified area  more prone to terrorist or disruptive activities.

37. It  is a settled rule of criminal jurisprudence that the  burden  on  an  accused  of  proving  a  fact  for  rebutting  a  statutory presumption in his defence is not as heavy as on the  prosecution  to prove its  case beyond reasonable doubt  but  the lighter burden of proving the greater probability. Thus, the  burden on the accused of rebutting the statutory presumption  which arises against him under Section 5 of the TADA Act on  proof  by  the  prosecution  that  the  accused  was  in  unauthorised  possession  of  any  of  the  specified  arms  and  ammunition  etc.  within  a  notified  area,  is  of  greater  probability. When the prosecution has proved these facts, it  has to do nothing more and conviction under Section 5 of the  TADA Act must follow unless the accused rebuts the statutory  presumption by proving that any such arms and ammunition  etc. was neither used nor was meant to be used for a terrorist  or  disruptive  activity.  No further  nexus  of  his  unauthorised  possession of the same with any specific terrorist or disruptive  activity  is  required  to  be  proved  by  the  prosecution  for  proving  the  offence  under  Section  5  of  the  TADA Act.  The  nexus  is  implicit,  unless  rebutted,  from  the  fact  of  unauthorised conscious possession of any such weapon etc.  within a notified area and the inherent lethal and hazardous  nature and potential of the same. The observations of Sahai, J.  alone in  Kartar Singh1 cannot be read to enlarge the burden  on the prosecution to prove the implicit  nexus by evidence  aliunde, or to require the prosecution to prove anything more  than what we have indicated.”

69) Similary, in Prakash Kumar (supra), this Court held  

as under:-

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“18. The questions posed before us for the termination are  no more res integra. In our view, the same have been set at  rest by the three-Judge Bench decision rendered in Nalini. The  rigours of Sections 12 and 15 were considered in Nalini case1  and a finding rendered in paras 80, 81 and 82 (SCC p. 304) as  under:

“80. Section 12 of TADA enables the Designated Court  to jointly try, at the same trial,  any offence under TADA  together with any other offence ‘with which the accused  may be charged’ as per the Code of Criminal Procedure.  Sub-section (2) thereof empowers the Designated Court to  convict the accused, in such a trial, of any offence ‘under  any other law’ if it is found by such Designated Court in  such trial that the accused is found guilty of such offence.  If the accused is acquitted of the offences under TADA in   such a trial, but convicted of the offence under any other   law, it does not mean that there was only a trial for such   other offence under any other law.

81.  Section  15  of  TADA  enables  the  confessional  statement of an accused made to a police officer specified  therein to become admissible ‘in the trial of such a person’.  It means, if there was a trial of any offence under TADA  together with any other offence under any other law,  the  admissibility of the confessional statement would continue  to hold good even if the accused is acquitted under TADA  offences.

82.  The  aforesaid  implications  of  Section  12  vis-à-vis  Section  15  of  TADA have  not  been  adverted  to  in  Bilal   Ahmed case2.  Hence the observations therein (at SCC p.  434, para 5) that

‘while dealing with the offences of which the appellant  was convicted there is no question of looking into the  confessional  statement  attributed  to  him,  much  less  relying on it since he was acquitted of all offences under  TADA’

cannot be followed by us.  The correct position is that the  confessional statement duly recorded under Section 15 of   TADA would continue to remain admissible as for the other   offences under any other law which too were tried along   with  TADA  offences,  no  matter  that  the  accused  was  acquitted of offences under TADA in that trial.”

(emphasis supplied)

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We are in respectful agreement with the findings recorded  by a three-Judge Bench in Nalini case.

33. Section 12 empowers the Designated Court to try any  other offence with which the accused may be charged under  the Code at the same trial provided the offence is connected  with such other offence. This section has been brought to the  statute-book  in  consonance  with  the  preamble  of  the  Act,  which  says  “for  the  prevention  of,  and  for  coping  with,  terrorist and disruptive activities and  for matters connected  therewith  or  incidental  thereto”.  (emphasis  supplied)  Therefore, Section 12 is introduced to take care of the matters  connected with or incidental to terrorist activities.

34.  A  conjoint  reading  of  the  two  sections  as  a  whole  leaves  no  manner  of  doubt  that  one  provision  is  to  be  construed with reference to the other provision and vice versa  so as to make the provision consistent with the object sought  to be achieved. The scheme and object of the Act being the  admissibility of the confession recorded under Section 15 of  the  Act  in  the  trial  of  a  person  or  co-accused,  abettor  or  conspirator charged and tried in the same case together with  the accused, as provided under Section 12 of the Act.

35. Counsel contends that Section 12 is only an enabling  provision empowering the Designated Court to try and convict  for the offences committed under any other law along with  the offences under TADA so as to avoid multiplicity of the trial  and  does  not  empower  the  Designated  Court  to  try  and  convict for other offences, even if the offences under TADA  are not made out. Does it mean: “Thou shalt have teeth, but  not bite?” We think not. When the courts have the power to  try, it is implicit in it that they have the power to convict also.  In the present case, sub-section (2) of Section 12 expressly  empowered  the  Designated  Court  to  convict  the  accused  person  of  such  other  offence  and  pass  any  sentence  authorised by the Act — if the offence is connected with such  other offence and — if it is found that the accused person has  committed any other offence.

36.  Section  12(1)  as  quoted  above  authorises  the  Designated  Court  to  try  offences  under  TADA  along  with  another  offence  with  which  the  accused  may  be  charged  under CrPC at the same trial. The only embargo imposed on  the exercise of the power is that the offence under TADA is  connected  with  any  other  offence  being  tried  together.  Further,  Section  12(2)  provides  that  the  Designated  Court  

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may convict the accused person of offence under that Act or  any rule made thereunder  or under any other law and pass  any sentence authorised under that Act or the Rules or under   any  other  law,  as  the  case  may  be  for  the  punishment   thereof, if in the course of any trial under TADA the accused   persons  are  found  to  have  committed  any  offence  either   under that Act or any rule or under any other law.  

37.  The legislative intendment underlying Sections  12(1)  and  (2)  is  clearly  discernible,  to  empower  the  Designated  Court to try and convict the accused for offences committed  under any other law along with offences committed under the  Act, if the offence is connected with such other offence. The  language “if the offence is connected with such other offence”  employed in Section 12(1) of the Act has great significance.  The  necessary  corollary  is  that  once  the  other  offence  is  connected with the offence under TADA and if the accused is  charged under the Code and tried together in the same trial,  the Designated Court is empowered to convict the accused for  the offence under any other law, notwithstanding the fact that  no offence under TADA is made out. This could be the only  intendment  of  the  legislature.  To  hold  otherwise,  would  amount to rewrite  or recast legislation and read something  into it which is not there.

41. The other leg of the submission is rigours of Section 18  of the Act. Section 18 deals with the power to transfer cases  to regular courts. It reads:

“18. Where,  after taking cognizance of any offence, a  Designated  Court  is  of  opinion  that  the  offence  is  not  triable  by  it,  it  shall,  notwithstanding  that  it  has  no  jurisdiction to try such offence, transfer the case for the  trial of such offence to any court having jurisdiction under  the Code and the court  to which the case is transferred  may proceed with the trial of the offence as if it had taken  cognizance of the offence.”

       (emphasis supplied) 42.  It  is  contended  that  the  words  “after  taking  

cognizance” employed in Section 18 of the Act would include  any stage of trial including the stage when the judgment is to  be delivered. This submission is also misconceived. If it ought  to have been the intention of the legislature they could have  said  so.  The  legislature  deliberately  uses  the  words  “after  taking cognizance of any offence” to mean that Section 18  would be attracted only at the stage where the Designated  Court takes cognizance of offence i.e. after the investigation is  

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complete and charge-sheet is filed. The provisions of Section  209 CrPC on which the counsel for the appellants sought to  rely are not in  pari materia with Section 18. In Section 209  CrPC  the  words  “after  taking  cognizance”  are  absent  conspicuously. Section 18 is a filtered provision. The section is  attracted  only  at  a  stage  the  Designated  Court  takes  cognizance  of  the  offence.  It  is  at  the  stage  of  taking  cognizance,  the  Designated  Court  is  expected  to  scan  the  documents  and  evidence  collected  therewith.  If  the  Designated  Court  is  of  the  opinion  that  the  offence  is  not  triable  by  it,  it  shall  then,  notwithstanding  that  it  has  no  jurisdiction to try such offence, transfer the case for the trial  of  such  offence  to  any  court  having  jurisdiction  under  the  Code  and  the  court  to  which  the  case  is  transferred  may  proceed  with  the  trial  of  the  offence  as  if  it  had  taken  cognizance of the offence. In our view, there is no ambiguity  in the language used in Section 18. If the submissions of the  counsel  for the appellant are accepted, it  would amount to  reading something into the statute which is not there.”

70) In the case on hand, at the time of taking cognizance  

by  the  Designated  Court,  there  were  sufficient  evidence  

against the appellants to proceed against them in the joint  

trial.  In the case of Sanjay Dutt, the Designated Court took a  

view on the basis of his own confession that the weapons  

were not  acquired for  any terrorist  activity  but  they were  

acquired for self-defence, therefore, acquittal was recorded  

in respect of charge under Section 5 of TADA. We fully agree  

with the same.   

71) For  the  same  reasons  discussed  above,  we  are  in  

agreement with the conclusion arrived at by the Designated  

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Court and reject the arguments of the counsel for the other  

appellants, viz., A-118 and A-124.  In the light of the above  

discussion, we are of the view that the course adopted by  

the trial  Court  was correct  in  view of  both the abovesaid  

judgments of this Court.   

Sentence:

72) Coming  to  sentence,  A-117  has  filed  an  additional  

affidavit  dated  24.07.2012  highlighting  the  circumstances  

under  which  he  was  implicated,  relationship  of  his  family  

members  with  the  victims  etc.   It  is  not  in  dispute  that  

though the appellant was also charged under TADA Act, the  

fact  remains  that  he  was  acquitted  of  those charges  and  

admittedly the CBI has not filed an appeal against the same.  

As said earlier, the Designated Court convicted him for the  

offences under Sections 3 and 7 read with Sections 25(1-A)  

and (1-B)(a) of  the Arms Act,  1959.   Consequently,  in his  

additional  affidavit,  the  appellant  has  asserted  that  he  is  

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entitled  to  seek  the  benefit  of  Section  4  of  Probation  of  

Offenders Act.  

73) The  appellant  (A-117)  asserted  that  though  the  

prosecution involved him in Bombay Bomb Blast Case that  

he had knowledge as to the conspiracy and had kept in his  

possession  fire  arms  and  ammunitions  as  well  as  hand  

grenades knowing that the same were from the consignment  

that had landed for use in the said Blasts, the fact remains  

that  the  Designated Court  did  not  accept  the prosecution  

story  against  him  and  rejected  his  involvement  in  the  

conspiracy  as  well  as  any  knowledge  of  the  events  as  

charged.  The TADA Court has also held that the prosecution  

has failed to prove that the alleged arms in possession of the  

appellant were from the same alleged consignment that was  

used in the said blasts.  

74) It  was also contended from the side of the appellant  

that  in  the  year  1992-93,  the  appellant  and  his  family  

members were involved in helping people residing in riots  

affected  areas,  more  particularly,  Behrampada,  

predominantly  having  a  Muslim  population  which  was  

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objectionable to certain group of persons who were of the  

opinion that the Dutt family was sympathizers of only the  

Muslim community.  In fact, this leads to an attack on Sunil  

Dutt  in  January,  1993  as  well  as  threatening  phone  calls  

were being received at their residence, including threats to  

the family members being killed as well as the sisters of the  

appellant being kidnapped and raped.  This lead to a great  

and  serious  apprehension  that  an  attack  could  be  

perpetrated upon the Dutt family in view of the fact that Shri  

Sunil  Dutt  had already been attacked.   This  apprehension  

was clearly set out in the letter of Shri Sunil Dutt to the then  

DCP of  Zone  VII  dated  06.01.1993,  wherein  he  asked  for  

enhancing security arrangements further and for more police  

protection at his house as deposed by PW-219 in this case.  

75) It is stated that A-117 had no previous involvement or  

conviction  prior  to  one in  1992 which  ended in  acquittal.  

Thus, according to him, he is not a previous offender or a  

convict.  In the event,  this Court releases the appellant on  

Probation under the provisions of the Probation of Offenders  

Act, neither any injustice would occasion to anyone as the  

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offence  in  which  he  was  convicted,  is  not  even  a  social  

offence nor any prejudice be caused to the prosecution.  He  

asserted that he is not a habitual offender, and is not likely  

to commit any offence in future.  The TADA Court did not get  

any  opportunity  to  complain  about  the  conduct  of  the  

appellant in 19 years.  He further submitted that he has also  

suffered the agony of long trial of 13 ½ (thirteen and a half)  

years.  The stress and trauma of the same, besides the fact  

that he has carried the tag of an alleged terrorist for 13 ½  

(thirteen  and  a  half)  years  though  unwarranted,  and  has  

been  deprived  of  the  company  of  his  daughter,  is  a  

punishment in itself. He has also stated that he had suffered  

mentally,  physically  and  emotionally  in  the  last  several  

years.  

76) He also informed this Court that he got married again in  

the year 2008 and is blessed with two children aged 1 and ½  

years and they need their father’s presence in their life.  He  

further submitted that he has been actively involved in an  

AIDS charity and raises funds for the free treatment of aids  

patients who cannot  afford the same,  besides visiting the  

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hospitals/centres.  It is further submitted that he is on the  

Board of  Directors  of  “Save the Children Foundation”  and  

helping  in  raising  funds  for  children  who  are  needy,  

orphaned and destitute as their Brand Ambassador for a long  

time, even prior to his being charged in this case.  

77) In view of the above, learned senior counsel for A-117  

draws attention of this Court towards the following decisions,  

viz.,  Ved Prakash vs.  State of  Haryana,  1981  (1)  SCC  

447, this Court observed that the social background and the  

personal factors of the crime-doer are very relevant although  

in practice Criminal Courts have hardly paid attention to the  

social milieu or the personal circumstances of the offender.  

78) In Jugal Kishore vs. State of Bihar, (1972) 2 SCC 633  

this Court observed that the modern criminal jurisprudence  

recognizes that no one is a born criminal and that a good  

many crimes are the product of socio-economic milieu.   

79) This Court in  Ratanlal vs.  State of Punjab, (1964) 7  

SCR 676 has observed to the effect  that  the Probation of  

Offenders Act, was enacted with a view to provide for the  

release of  offenders  of  certain  categories  on  Probation  or  

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alter due admonition and for matters connected therewith.  

The  object  of  the  Act  is  to  prevent  the  conversion  of  

offenders  into  obdurate  criminals  as  a  result  of  their  

association with hardened criminals.  The above object is in  

consonance with the present trend in the field of penology,  

according to which, efforts should be made to bring about  

correction and reformation of the individual  offenders and  

not to resort to retributive justice.  Although, not much can  

be  done  for  hardened  criminals,  considerable  stress  has  

been laid on bringing about reform of offenders not guilty of  

serious  offences  and  of  preventing  their  association  with  

hardened criminals.  The Act gives statutory recognition to  

the above objective.  It is, therefore, provided that offenders  

should not be sent to jail, except in certain circumstances.  

80) The scope of Section 4 of the Probation of Offenders Act  

is  much  wider.   It  applies  to  any  person  found  guilty  of  

having committed an offence not punishable with death or  

imprisonment for life.  The same has also been held by this  

Court in Chhani vs. State of U.P., (2006) 5 SCC 396.  

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81) Section 360 of the Code of Criminal Procedure does not  

provide for  any role for  probation officers  in  assisting the  

courts in relation to supervision and other matters while the  

Probation  of  Offenders  Act  does  make  such  a  provision.  

While  Section 12 of  the Probation of  Offenders Act  states  

that a person found guilty of an offence and dealt with under  

Section 3 or 4 of the Probation of Offenders Act, shall not  

suffer disqualification, if any, attached to the conviction of  

an offence under any law.  The Code of Criminal Procedure  

does not contain parallel provision.  Two statutes with such  

significant differences could not be intended to co-exist at  

the same time in the same area.  Such co-existence would  

lead  to  anamolous  results.   The  intention  to  retain  the  

provisions of Section 360 of the Code and the Probation of  

Offenders Act as applicable at the same time in a given area  

cannot be gathered from the provisions of Section 360 or  

any other provisons of the Code.   

82) Keeping those information in the form of an additional  

affidavit, let us consider his claim and eligibility of applying  

Section 4 of the Probation of Offenders Act.  

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83) Sub-section 4 of the Probation of Offenders Act contains  

the words “Notwithstanding anything contained in any other  

law for the time being in force”.  The above  non obstante  

clause points to the conclusion that the provisions of Section  

4 of the Probation of Offenders Act would have an overriding  

effect  and  shall  prevail  if  the  other  conditions  prescribed  

therein are fulfilled.  Those conditions are:  

(i) The accused  is  found  guilty  of  having  committed  an  

offence not punishable with death or imprisonment for  

life;

(ii) The  Court  finding  him  guilty  is  of  the  opinion  that  

having  regard  to  the  circumstances  of  the  case,  

including the nature of the offence and the character of  

the  offender,  it  is  expedient  to  release  him  on  

probation;

(iii) The accused in such an event enters into a bond with or  

without sureties to appear and receive sentence when  

called  upon  during  such  period  not  exceeding  three  

years as the court may direct and, in the meantime, to  

keep the peace and be of good behaviour.

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84) The underlying object of the above provisions obviously  

is  that  an  accused  person  should  be  given  a  chance  of  

reformation, which he would lose in case he is incarcerated  

in  prison  and  associates  with  hardened  criminals.   It  is  

submitted that the provisions of the said Act are beneficial  

provisions  and,  therefore,  they  should  receive  wide  

interpretation and should not be read in a restricted sence  

vide Ishar Das vs. State of Punjab, 1973 (2) SCC 65.  

85) Section 4 of the Probation of Offenders Act applies to all  

kinds of offenders, whether under or above the age of 21  

years.   This  section  is  intended  to  attempt  possible  

reformation of an offender instead of inflicting upon him the  

normal punishment of his crime.  It is submitted that it is  

settled law that while extending benefit of the said provision,  

this Court has to exercise its discretion having regard to the  

circumstances in which the crime was committed, viz., the  

age, character and antecedents of the offender.  It is also  

settled law that such exercise of discretion needs a sense of  

responsibility.  The section itself is clear that before applying  

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the same, this Court should carefully take into consideration  

the attendant circumstances.        

86) The  circumstances  and  the  nature  of  the  offence  as  

analysed and discussed above are so serious and we are of  

the view that they do not warrant A-117 the benefit of the  

provisions of the Probation of Offenders Act, however, taking  

note of various aspects, we reduce the sentence to minimum  

period, viz., 6 years to 5 years.  The appeal is disposed of on  

the above terms.   

87) In respect of A-118, in view of the discussion and the  

above conclusion, we confirm the conviction and sentence  

awarded to him by the Designated Court. Consquently, the  

appeal is dismissed.  

88) Insofar  as  A-124  is  concerned,  the  Designated  Court  

has convicted him under Sections 3 and 7 read with Sections  

25(1-A)(1-B)(a)  of  the  Arms  Act,  1959,  as  well  as  under  

Section 201 of IPC and sentenced him to undergo RI for 2  

years on both the counts separately.  A perusal of all  the  

materials relating to A-124 shows that the Designated Court  

itself convicted and sentenced him under Section 25(1-B)(a)  

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of  the  Arms  Act  along  with  Section  201  of  IPC.   While  

clarifying  the  same,  we hold  that  there  is  no  substantive  

evidence  for  convicting  him under  Section  25(1-A)  of  the  

Arms Act, though the Designated Court has referred to the  

same while awarding sentence to him.  Also, considering his  

age, i.e. 82 years as on date and taking note of the fact that  

the minimum sentence for the offence under Section 25(1-B)

(a)  being  one  year,  while  confirming  his  conviction,  we  

reduce the sentence awarded to A-124 under Section 25(1-

B)(a) as well as under Section 201 IPC to 1 year which shall  

run concurrently.  The appeal is disposed of on the above  

terms.

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Criminal Appeal No. 596 of 2011

The State of Maharashtra, through CBI      …. Appellant(s)

vs.

Ajai Yash Prakash Marwah (A-120)     …. Respondent(s)

89) Heard Mr. H.P. Rawal, learned ASG duly assisted by Mr.  

Satyakam,  learned  counsel  for  the  appellant  (CBI).   None  

appeared for the respondent.

90) The  instant  appeal  is  directed  against  the  impugned  

judgment  and  order  dated  02.08.2007  passed  by  the  

Designated Court under TADA for the Bombay Bomb Blast  

Case,  Greater  Bombay  in  B.B.C.  No.1/1993  whereby  the  

appellant  (A-120)  has  been  acquitted  of  all  the  charges  

framed against him.

Charges:

91) A common charge of conspiracy was framed against all  

the  co-conspirators  including  the  appellant.   The  relevant  

portion of the said charge is reproduced hereunder:

“During the period from December, 1992 to April, 1993 at  various  places  in  Bombay,  District  Raigad  and  District  Thane in India and outside India in Dubai (U.A.E.) Pakistan,  entered into a criminal conspiracy and/or were members of  

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the said criminal conspiracy whose object was to commit  terrorist  acts in India and that you all agreed to commit  following illegal acts, namely, to commit terrorist acts with  an  intent  to  overawe  the  Government  as  by  law  established,  to  strike  terror  in  the  people,  to  alienate  sections of the people and to adversely affect the harmony  amongst different sections of the people, i.e. Hindus and  Muslims  by  using  bombs,  dynamites,  handgrenades  and  other  explosive  substances  like  RDX  or  inflammable  substances or fire-arms like AK-56 rifles, carbines, pistols  and other lethal weapons, in such a manner as to cause or  as  likely  to  cause death  of  or  injuries  to  any person or  persons, loss of or damage to and disruption of supplies of  services  essential  to  the  life  of  the  community,  and  to  achieve the objectives of the conspiracy, you all agreed to  smuggle fire-arms, ammunition, detonators, handgrenades  and high explosives like RDX into India and to distribute  the same amongst yourselves and your men of confidence  for  the purpose of  committing  terrorist  acts  and for  the  said  purpose  to  conceal  and  store  all  these  arms,  ammunition  and  explosives  at  such  safe  places  and  amongst yourselves and with your men of confidence till its  use for committing terrorist acts and achieving the objects  of criminal conspiracy and to dispose off the same as need  arises.  To organize training camps in Pakistan and in India  to  import  and  undergo  weapon  training  in  handling  of  arms, ammunitions and explosives to commit terrorist acts.  To harbour and conceal terrorists/co-conspirators, and also  to  aid,  abet  and  knowingly  facilitate  the  terrorist  acts  and/or any act preparatory to the commission of terrorist  acts and to render any assistance financial or otherwise for  accomplishing  the  object  of  the  conspiracy  to  commit  terrorist acts, to do and commit any other illegal acts as  were necessary for  achieving the aforesaid objectives  of  the  criminal  conspiracy  and  that  on  12.03.1993  were  successful in causing bomb explosions at Stock Exchange  Building, Air India Building, Hotel Sea Rock at Bandra, Hotel  Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazar,  Katha Bazar, Century Bazar at Worli, Petrol Pump adjoining  Shiv  Sena  Bhavan,  Plaza  Theatre  and  in  lobbing  handgrenades at Macchimar Hindu Colony, Mahim and at  Bay-52,  Sahar International  Airport  which  left  more than  257 persons dead, 713 injured and property worth about  Rs.27  crores  destroyed,  and  attempted  to  cause  bomb  explosions at Naigaum Cross Road and Dhanji Street, all in  the  city  of  Bombay  and  its  suburbs  i.e.  within  Greater  

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Bombay.   And  thereby  committed  offences  punishable  under Section 3(3) of TADA (P) Act, 1987 and Section 120- B of IPC read with Sections 3(2)(i)(ii), 3(3),(4), 5 and 6 of  TADA (P) Act, 1987 and read with Sections 302, 307, 326,  324, 427, 435, 436, 201 and 212 of Indian Penal Code and  offences  under  Sections  3  and  7  read  with  Sections  25  (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c)  of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of  the Explosive Substances Act, 1908 and Section 4 of the  Prevention  of  Damage to  Public  Property  Act,  1984  and  within my cognizance.”

In addition to the first charge, the appellant (A-120) was also  

charged  for  having  committed  the  following  offence  in  

pursuance  of  the  criminal  conspiracy  described  at  charge  

firstly:

At head Secondly: The  appellant,  in  pursuance of  the  aforesaid criminal conspiracy, was found to be connected  with the episode of possession of unauthorized arms and  hand  grenades  by  A-117,  A-118,  A-124  and  A-125  and  committed the following overt acts:   

(a) The appellant, by receiving and keeping in his  possession one 9mm pistol and its cartridges, which  were  smuggled  into  the  country  for  committing  terrorist  acts, thereby aided the co-conspirator and  committed an offence punishable under Section 3(3)  of TADA.

At  head  Thirdly:  The  appellant  possessed  the  above  mentioned pistol  and its  ammunition in  Greater  Bombay  which is specified as a notified area under clause (f) of sub- section (1) of Section 2 of TADA and thereby committed an  offence punishable under Section 5 of TADA.  

At  head  Fourthly: The  appellant,  by  possessing  the  above mentioned arms and its ammunitions with intent to  

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aid  terrorists  committed  an  offence  punishable  under  Section 6 of TADA.  

At head Fifthly: The appellant, by possessing the above  mentioned  arms  and  its  ammunitions,  committed  an  offence  punishable  under  Sections  3  and  7  read  with  Section 25(1-A)(1-B)(a) of the Arms Act, 1959.  

Conviction and Sentence: 92) The  Designated  Court,  by  impugned  judgment  dated  

02.08.2007, after considering the materials placed on record  

and  after  adverting  to  all  the  contentions  raised  and  

submissions made, acquitted him of all the charges framed  

against him.

Discussion:

93) Against  the  order  of  acquittal  in  respect  of  all  the  

charges against the respondent (A-120), the CBI has filed the  

present  appeal.   The  only  point  for  consideration  in  this  

appeal  is  whether  the  order  of  acquittal  rendered  by  the  

Designated  Court  is  justifiable  or  requires  interference  by  

this Court.  Keeping the basic principles in mind, in a matter  

when acquittal is recorded by the trial Court and the grounds  

on which the Appellate Court can interfere, let us consider  

and dispose of the above appeal.    

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94) It  is  not  in  dispute  that  A-120  has  not  made  any  

confession  and  his  co-accused  A-125  relied  on  by  the  

prosecution has also not made any confession and even the  

confessional  statements  of  other  co-accused  failed  to  

disclose any involvement of A-120 in any manner.  The only  

allegation against the present accused is that of seizure of a  

box  containing  a  pistol  from  his  house.   The  Designated  

Court, after considering the evidence of panch witness (PW-

211)  regarding  the  statement  made  by  A-125  and  after  

finding that there was lot of variation in their statements and  

bereft  of  materials  about  the  role  of  A-120  and  further  

finding  that  different  stories  have  been  projected  by  the  

prosecution, refused to accept the same.  After analyzing the  

entire  statement  of  A-125,  the  trial  Court  came  to  a  

conclusion that the same are insufficient to connect A-120 as  

being  the  person  who  had  received  the  same  pistol  and  

rounds.   

95) As has been rightly observed by the Designated Court,  

mere recoveries of a .9mm pistol and the rounds from the  

bungalow of A-120 would not be sufficient to connect him  

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with the said articles.  It is settled law that the recoveries  

made must be found to have been made as a consequence  

to the statement made by the accused in custody.  In other  

words, if the nexus in between is not established, the said  

statement  made would  be  inadmissible  in  evidence.   The  

Designated  Court,  after  considering  the  well  settled  

principles and the materials placed concluded that “it will be  

further necessary to say that scrutiny of the evidence also  

does not reveals A-120 having purchased .9mm pistol and  

rounds……”  The Designated Court has also concluded that  

even if the statement made by A-125 is acceptable, in the  

absence of any supporting oral and documentary evidence  

and taking note of the improvement made by panch witness  

as  well  as  in  the statements  of  witnesses stage by stage  

“hardly there would be any evidence to connect A-120 with  

the relevant contraband articles” and rightly discarded the  

same.

96)  In the light of the categorical finding by the trial Court  

and after analyzing the materials placed by the prosecution,  

we fully concur with the said conclusion and according to us,  

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with  the  above  said  insufficient  evidence,  the  order  of  

acquittal cannot be lightly interfered in the present appeal,  

consequently, the appeal filed by the CBI fails and the same  

is dismissed.    

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Criminal Appeal No. 1104 of 2007

Samir Ahmed Hingora (A-53)              .... Appellant(s)

vs.

The State of Maharashtra, thro. Superintendent of Police,  CBI (STF), Bombay                      ….  Respondent(s)

WITH

Criminal Appeal No. 1026 of 2012

The State of Maharashtra, through CBI (STF), Bombay          ....  Appellant(s)

vs.

Samir Ahmed Hingora (A-53)      ….  Respondent(s)

********** 97) Heard  Mr.  Mukul  Rohtagi  and  Mr.  V.K.  Bali,  learned  

senior counsel for A-53 and Mr. H.P. Rawal, learned ASG for  

the CBI.

Criminal Appeal No. 1104 of 2007

98) The  present  appeal  is  directed  against  the  final  

judgment  and  order  of  conviction  and  sentence  dated  

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29.11.2006  and  01.06.2007  respectively  whereby  the  

appellant (A-53) has been convicted and sentenced by the  

Designated Court under TADA for the Bombay Bomb Blast  

Case, Greater Bombay in B.B.C. No.1/1993.

Charges:

99) A common charge of conspiracy was framed against all  

the  co-conspirators  including  the  appellant.   The  relevant  

portion of the said charge is reproduced hereunder:

“During the period from December, 1992 to April, 1993 at  various  places  in  Bombay,  District  Raigad  and  District  Thane in India and outside India in Dubai (U.A.E.) Pakistan,  entered into a criminal conspiracy and/or were members of  the said criminal conspiracy whose object was to commit  terrorist  acts in India and that you all agreed to commit  following illegal acts, namely, to commit terrorist acts with  an  intent  to  overawe  the  Government  as  by  law  established,  to  strike  terror  in  the  people,  to  alienate  sections of the people and to adversely affect the harmony  amongst different sections of the people, i.e. Hindus and  Muslims  by  using  bombs,  dynamites,  handgrenades  and  other  explosive  substances  like  RDX  or  inflammable  substances or fire-arms like AK-56 rifles, carbines, pistols  and other lethal weapons, in such a manner as to cause or  as  likely  to  cause death  of  or  injuries  to  any person or  persons, loss of or damage to and disruption of supplies of  services  essential  to  the  life  of  the  community,  and  to  achieve the objectives of the conspiracy, you all agreed to  smuggle fire-arms, ammunition, detonators, handgrenades  and high explosives like RDX into India and to distribute  the same amongst yourselves and your men of confidence  for  the purpose of  committing  terrorist  acts  and for  the  said  purpose  to  conceal  and  store  all  these  arms,  ammunition  and  explosives  at  such  safe  places  and  amongst yourselves and with your men of confidence till its  use for committing terrorist acts and achieving the objects  

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of criminal conspiracy and to dispose off the same as need  arises.  To organize training camps in Pakistan and in India  to  import  and  undergo  weapon  training  in  handling  of  arms, ammunitions and explosives to commit terrorist acts.  To harbour and conceal terrorists/co-conspirators, and also  to  aid,  abet  and  knowingly  facilitate  the  terrorist  acts  and/or any act preparatory to the commission of terrorist  acts and to render any assistance financial or otherwise for  accomplishing  the  object  of  the  conspiracy  to  commit  terrorist acts, to do and commit any other illegal acts as  were necessary for  achieving the aforesaid objectives  of  the  criminal  conspiracy  and  that  on  12.03.1993  were  successful in causing bomb explosions at Stock Exchange  Building, Air India Building, Hotel Sea Rock at Bandra, Hotel  Centaur  at  Juhu,  Hotel  Centaur  at  Santacruz,  Zaveri  Bazaar,  Katha  Bazaar,  Century  Bazaar  at  Worli,  Petrol  Pump adjoining Shiv  Sena Bhavan,  Plaza Theatre and in  lobbing handgrenades at Macchimar Hindu Colony, Mahim  and at Bay-52, Sahar International Airport which left more  than 257 persons  dead,  713 injured and property  worth  about  Rs.27  crores  destroyed,  and  attempted  to  cause  bomb explosions at Naigaum Cross Road and Dhanji Street,  all in the city of Bombay and its suburbs i.e. within Greater  Bombay.   And  thereby  committed  offences  punishable  under Section 3(3) of TADA (P) Act, 1987 and Section 120- B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of  TADA (P) Act, 1987 and read with Sections 302, 307, 326,  324, 427, 435, 436, 201 and 212 of Indian Penal Code and  offences  under  Sections  3  and  7  read  with  Sections  25  (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c)  of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of  the Explosive Substances Act, 1908 and Section 4 of the  Prevention  of  Damage to  Public  Property  Act,  1984  and  within my cognizance.”

In  addition  to  the  above-said  principal  charge  of  

conspiracy, the appellant was also charged on other counts  

which are as under:

At head Secondly;  The appellant committed an offence  punishable  under  Section  3(3)  of  TADA  by  doing  the  following overt acts:-

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(a) The appellant supplied 3 AK-56 rifles, its magazines,  ammunitions and hand grenades to Sanjay Dutt (A- 117)  at  his  residence  at  the  instance  of  Anees  Ibrahim Kaskar (AA).

(b) The appellant arranged 7 air tickets from East West  Travels by making cash payment at the instance of  A-1 to facilitate the escape of members of  Memon  family to Pakistan via Dubai.  

At head Thirdly; The appellant acquired and facilitated  transport of the above mentioned arms and ammunitions  to A-117 with intent to aid terrorist and thereby committed  an offence punishable under Section 6 of TADA.  

100) The Designated Court found the appellant guilty on the  

charges mentioned at head firstly (smaller conspiracy) and  

clause  (a)  at  head  secondly.   The  appellant  has  been  

convicted  and  sentenced  for  the  above  said  charges  as  

under:

Conviction and Sentence: (i) The  appellant  has  been  convicted  for  the  offence  of  

conspiracy read with the offences described at head  firstly  

and  sentenced  to  RI  for  9  years  alongwith  a  fine  of  Rs.  

1,00,000/-, in default, to further undergo RI for 3 years for  

the  commission  of  offence  under  Section  3(3)  of  TADA.  

(charge firstly)  

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(ii) The appellant has been convicted for the offence under  

section 3(3) of TADA for commission of acts mentioned at  

clause (a) of head secondly, and sentenced to RI for 9 years  

alongwith  a  fine  of  Rs.  1,  00,000/-,  in  default,  to  further  

undergo RI for 3 years. (charge secondly)  

Evidence

101) The evidence against the appellant (A-53) is in the form  

of:-

(i) his own confession;

(ii) confessions  made  by  other  co-conspirators;  (co-

accused); and

(iii) testimony of prosecution witness.

Confesssional Statement of Samir Ahmed Hingora (A- 53)  

102) Confessional  statement  of  A-53  under  Section  15  of  

TADA  has  been  recorded  on  18.05.1993  (17:00  hrs.)  and  

20.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),  

the  then  DCP,  Zone  III,  Bombay.   A  perusal  of  his  

confessional statement states as under:-

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(i) The  appellant  started  a  Video  Library  and  Mustafa  

Dossa  @ Mustafa  Majnoo  (A-138)-brother  of  Mohd.  Dossa  

(AA), was a member of his Library.   

(ii) Tiger Memon used to work with A-138 in his shops at  

Manish Market and became a friend of A-53.

(iii) The appellant started the business of film distribution  

and production by the name of Magnum in partnership with  

Hanif Kandawala (A-40)-since deceased.

(iv) Anees Ibrahim Kaskar  (AA)  became a member  of  his  

Video Library and was referred to by everyone as Anisbhai  

since he was the brother of Dawood Ibrahim.

(v) A-53 and Tiger  Memon used to  meet  frequently  and  

discuss matters relating to the business.   

(vi) A-53 received a payment of Rs. 21.90 lakhs from Ayub  

Memon sent through someone on 13.03.1993 (one day after  

the blasts) as advance for purchasing rights of films.   

(vii) A-53  had  visited  Dubai  and  met  Anis  Ibrahim  many  

times and sold the rights of many films to M/s Kings Video,  

managed  by  Anis.   Anis  also  controls  Al-Mansoor  Video  

Company through Chota Rajan.

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(viii) On 15.01.1993, Ibrahim Musa Chauhan (A-41) and Abu  

Salem  (A-139)  met  A-53  at  his  office,  and  gave  him  a  

message that they have been directed by Anisbhai to see  

the appellant regarding the handing over of weapons to A-

117 at his residence.

(ix) Anis Ibrahim called the appellant from Dubai and told  

him that A-41 and A-139 are his men and that they will bring  

one vehicle loaded with weapons and the appellant has to  

make  arrangements  for  off-loading  and  handing  over  the  

weapons to A-117, and the rest will  be taken by them for  

distribution to other persons.  

(x) Inspite  of  the  unwillingness  of  Hanif  Kandawala,  his  

partner, in order to carry out the instructions, A-53 took A-

139  to  the  residence  of  A-117,  where  A-117  hugged  Abu  

Salem and asked him about the weapons.  A-117 then told A-

139 to bring the weapons the next day at 7 am.  

(xi) On 16.01.1993, A-53 led A-139 and A-41 to the house of  

Sanjay Dutt.  A-139 and A-41 were in a blue maruti van while  

A-53 was in his own car.  

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(xii) At the residence of A-117, A-53 saw that the blue van  

was containing 9 AK-56 rifles and some hand grenades and  

gave 3 AK-56 rifles and some magazines to A-117.  A-117  

also  asked  for  some hand  grenades  which  were  put  in  a  

black bag by A-139.

(xiii) A-139 kept the rifles in a fiat car belonging to A-117.  

The hand grenades were kept in the car of A-53, and he left  

the car at A-117’s residence and took an auto rickshaw.  

(xiv) A-53 collected his car from A-117’s residence after 3  

days when he called him and informed him that grenades  

have been taken out.   

103) A perusal  of  the aforesaid confession shows that  the  

appellant was aware about the goods which were to be off-

loaded and also about the purpose for which the same were  

to  be  used  which  fact  is  clear  from  his  confession,  viz.,  

“Anees Bhai telephone to me from Dubai saying that Baba   

and Saleem are his men.  They will bring one vehicle loaded   

with weapons.  You make arrangements for off-loading and   

hand over weapons to A-117 and the rest will be taken by   

them for distribution to other persons”.  Further, inspite of  

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the unwillingness of Hanif Kandawala, he proceeded to help  

the co-accused.  So the contention of the appellant that he  

was a mere navigator is misplaced and incorrect.   

Confessional Statements of co-accused:

104) Apart from his own confession, the involvement of the  

appellant  has  also  been  disclosed  in  the  confessional  

statements  of  the following co-accused.   The legality  and  

acceptability  of  the  confessions  of  the  co-accused  has  

already  been  considered  by  us  in  the  earlier  part  of  our  

discussion.  The said confessions insofar as they refer to the  

appellant    (A-53) are summarized hereinbelow:

Confessional Statement of Ibrahim Musa Chauhan @  Baba (A-41)  

Confessional  statement  of  A-41  under  Section  15  of  

TADA  was  recorded  on  23.04.1993  (12:45  hrs.)  and  

25.04.1993 (13:05 hrs.) by Shri Prem Krishna Jain (PW-189),  

the then DCP, Zone X, Bombay.  The said confession shows  

that:

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(i) On 15.01.1993, A-41 and A-139 went to the office of  

Magnum in order to meet A-53 upon the instructions of  

Anees who was in Dubai.  

(ii) A-53  along  with  A-41,  A-139  and  later  with  A-41  

searched  for  garages  in  Pali  Hill  areas,  Bandra  as  

suggested by Anees Ibrahim.   

(iii) A-53 and A-139 left together on 15.01.1993.

(iv) On 16.01.1993, A-139 came to his house in the morning  

and they reached the office of A-53 at around 06:30-

06:45 a.m.  A-139 and A-41 sat in one car followed by  

the car of A-53 to the house of Sanjay Dutt (A-117).

(v) A-139 opened the van at the residence of A-117 and  

took out 9 AK-56 rifles,  about 80 hand grenades and  

around 1500/2000 bullets in the presence of A-53 and  

A-117.

(vi) A-139 kept 3 rifles,  9 magazines,  450 bullets and 20  

hand grenades in the car of A-117.

(vii) A-53 kept 20 hand grenades in his car.  A-53 also gave  

a  long  sports  bag  to  A-41  in  which  3  rifles,  16  

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magazines,  25  hand  grenades  and  750  bullets  were  

kept.

(ix) A-53 dropped A-41 to his car and after that they left the  

residence of A-117.

A perusal of the confessional statement of A-41 shows that  

the appellant helped the co-accused persons to look for a  

garage  where  the  weapons  could  be  off-loaded  and  after  

that they were to be distributed to various persons.

Confessional  Statement  of  Mobina  @  Baya  Moosa  Bhiwandiwala (A-96)

(i) On the directions of Tiger Memon, owner of Magnum  

Videos (A-53) had sent Rs. 50,000/- to her residence on  

one or two occasions.  

(iii) After the blast, the owner of Magnum Videos (A-53) had  

sent Rs. 50,000/- for help.   

The above confession of A-96 shows that the appellant was  

in touch with Tiger Memon even after the blasts and on his  

instructions, he sent Rs. 50,000/- to A-96 for help.   

Confessional Statement of Sanjay Dutt (A-117)

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Confessional  statement  of  A-117 under Section 15 of  

TADA  was  recorded  on  26.04.1993  (15:30  hrs.)  and  

28.04.1993 (16:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),  

the then DCP, Zone III, Bombay.  The said confession reveals  

as under:

(i) A-117 knew A-53 and he was acting in one of his films.  

A-53 used to frequently come to his house for taking dates.

(ii) A-53  and  A-40  repeatedly  told  A-117  to  acquire  a  

firearm from them.

(iii) In  mid-January,  A-53,  A-40  and  A-139  came  to  the  

house of A-117 at around 09:30 p.m. and told him that the  

weapons will  be delievered the next day.   Next day, they  

again  came in  the  morning  with  one more  person  to  the  

residence of A-117.

(iv) At the residence of A-117, in the presence of A-53, A-

139 took out weapons and handed it over to him.   

(v) A-53 came to his house along with A-40 after 2-3 days  

when A-117 returned 2 AK-56 rifles to them.

The confession of A-117 corroborates in material particulars  

with the confession of other co-accused persons.   

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Deposition of Prosecution Witness:

105) Apart  from  the  aforesaid  evidence,  the  following  

prosecution witness deposed as under:

Deposition of Pandharinath Hanumanth Shinde (PW-218)  

The relevant material in his evidence is as follows:-  

(i) PW-218 identified A-53 in the TIP held on 27.05.1993 at  

the office of Crime Branch.

(ii) PW-218 identified A-53 in the Court.

106) Upon perusal of the entire evidence, it is clear that the  

appellant  was  closely  associated  with  Tiger  Memon  and  

Anees  Ibrahim  Kaskar  (AA).   Further,  inspite  of  the  

unwillingness shown by his partner - Hanif Kandawala (A-40),  

the appellant helped the co-accused searched for  garages  

where  the  weapons  were  to  be  off-loaded  and  concealed  

whereafter they were to be distributed to A-117 and other  

persons.   In addition to the same,  the appellant  was also  

associated with co-accused even after the blasts which fact  

is clearly discernible from the confession of A-96 wherein she  

stated  that  after  coming  back  to  her  house,  her  father  

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informed her that owner of Magnum Videos (A-53) had come  

and gave Rs. 50,000/- for help.

107) Mr.  Rohtagi,  learned senior  counsel  for  the  appellant  

pointed out that  without establishing the pre-requisites as  

held in the case of State vs. Nalini, (1999) 5 SCC 253, it is  

only  on  the  ground  of  acquaintance  with  the  main  

conspirators and alleged knowledge acquired on phone that  

after handing over weapons to A-117, the balance would be  

taken  for  distribution,  for  which  the  appellant  has  been  

erroneously convicted under Section 3(3).  We are unable to  

accept  the  said  claim.   We have already  pointed  out  the  

appellant’s  proximity  with  Anees  Ibrahim.   It  was  on  the  

instructions of Anees that the arms were delivered to Sanjay  

Dutt  and  because  of  the  relationship  of  Anees  and  

Tiger/Dawood Ibrahim, it establishes a strong link between  

A-53 and Anees.  Though it was argued that there was no  

proximity between the appellant and Anees, materials relied  

on  by  the  prosecution  clearly  prove  their  relationship.  

Further, their relationship cannot be simply construed as a  

business relationship.  The materials placed on record by the  

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prosecution,  relied  on  and  accepted  by  the  Special  Judge  

show that the appellant was guilty of distributing arms to  

persons other than Sanjay Dutt.  The finding recorded by the  

trial Judge is that A-53 not only distributed weapons to A-117  

but also to third parties.  

108) The CBI has successfully placed materials to show that  

the appellant was responsible for arranging garages for the  

storage  of  weapons.   We  have  already  adverted  to  the  

confessional statement of A-41 wherein in categorical terms  

it was asserted that A-53, the present appellant, along with  

A-41  and  A-139  searched  for  garages  in  Pali  Hill  areas,  

Bandra where the weapons could  be off  loaded and after  

that  they  were  to  be  distributed  to  various  persons  as  

suggested  by  Anees  Ibrahim.   In  view  of  the  same,  the  

argument of the learned senior counsel for the appellant is  

liable to be rejected.   The confessional  statement of A-41  

also shows that the appellant helped the co-accused persons  

to  look  for  garages.   In  such  circumstance,  it  cannot  be  

claimed that at no point of time A-53 was ever aware of what  

was to be stored in the garages.  

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109) Mr.  Rohtagi,  learned  senior  counsel  disputed  the  

admissibility  of  confession  made  by  the  appellant  and  

voluntariness of his statement.   The Designated Court,  on  

going through the evidence of the officer who recorded his  

confession, the procedure followed, opportunity given to the  

appellant, rejected the similar objection raised before him.  

Upon  going  through  all  the  materials,  we  agree  with  the  

reasoning of the Special Judge and we are of the view that  

there  is  no  flaw  in  the  procedure  while  recording  the  

confession of the appellant.

Appeal by the State of Maharashtra through CBI: Criminal Appeal No. 1026 of 2012 110) Though Mr. Rawal, learned ASG, prayed for conviction  

of  A-53  for  the  charge  framed  at  head  firstly,  i.e.,  larger  

conspiracy, in view of the above discussion, we are satisfied  

that the materials available establish his involvement only to  

the  extent  of  the  smaller  conspiracy  and  the  Designated  

Court was justified in arriving at such conclusion and we fully  

agree with the same, hence, the appeal filed by the State is  

liable to be dismissed.   

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Sentence:

111) According to learned senior counsel for A-53, out of 9  

years of sentence awarded, he has completed 6 ½ (six and a  

half) years and there are several extenuating circumstances  

for reduction of the sentence.  They are:

(i) The appellant  is  a sick person suffering from cardiac  

problems since 2001;

(ii) He has 6 stents in his arteries;

(iii) The appellant, in addition to heart disease, is a diabetic  

patient (on insulin).  While diabetes on its own may not  

be a major ailment, it assumes far greater seriousness  

when coupled with a serious heart ailment.

(iv) The appellant has already faced protracted trial for 13  

½ (thirteen and a half) years on day to day basis.  In  

fact, he has continued attendance after conviction as  

per bail conditions for further 5 years;

v) The entire business and goodwill of the appellant has  

been lost.  

vi) The appellant has already served about 6 ½ (six and a  

half) years (without remission).

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112) Taking note of all these aspects and of the fact that the  

CBI was not able to establish the charge relating to major  

conspiracy and also that out of the period of 9 years, A-53  

has served nearly six and a half years of sentence and in the  

light  of  the ailments and taking note of  the fact  that  the  

minimum sentence prescribed is 5 years,  while confirming  

the conviction, we reduce the sentence to the period already  

undergone.   

113) The appeal filed by the accused is disposed of on the  

above terms.  The appeal filed by the CBI is dismissed.

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Criminal Appeal No. 1001 of 2007

Zaibunisa Anwar Kazi (A-119)       ... Appellant(s)

vs.  

The State of Maharashtra, through Superintendent of Police, CBI-STF, Bombay       ... Respondent(s)  

WITH

Criminal Appeal No. 392 of 2011

The State of Maharashtra, through CBI      …. Appellant(s)

vs.

Zaibunisa Anwar Kazi (A-119)      ….  Respondent(s)

114) Mr. Sushil Kumar, learned senior counsel appeared for  

the  appellant  (A-119)  and  Mr.  Rawal,  learned  ASG  duly  

assisted by Mr. Satyakam, learned counsel appeared for the  

respondent (CBI).

Criminal Appeal No. 1001 of 2007

115) The  instant  appeal  is  directed  against  the  final  

judgment  and  order  of  conviction  and  sentence  dated  

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28.11.2006  and  14.06.2007  respectively  whereby  the  

appellant  (A-119)  has  been  convicted  and  sentenced  to  

rigorous imprisonment for 5 years by the Designated Court  

under  TADA  for  the  Bombay  Bomb  Blast  Case,  Greater  

Bombay in B.B.C. No.1/1993.

Charges:

116) A common charge of conspiracy was framed against all  

the  co-conspirators  including  the  appellant.   The  relevant  

portion of the said charge is reproduced hereunder:

“During the period from December, 1992 to April, 1993 at  various  places  in  Bombay,  District  Raigad  and  District  Thane in India and outside India in Dubai (U.A.E.) Pakistan,  entered into a criminal conspiracy and/or were members of  the said criminal conspiracy whose object was to commit  terrorist  acts in India and that you all agreed to commit  following illegal acts, namely, to commit terrorist acts with  an  intent  to  overawe  the  Government  as  by  law  established,  to  strike  terror  in  the  people,  to  alienate  sections of the people and to adversely affect the harmony  amongst different sections of the people, i.e. Hindus and  Muslims  by  using  bombs,  dynamites,  handgrenades  and  other  explosive  substances  like  RDX  or  inflammable  substances or fire-arms like AK-56 rifles, carbines, pistols  and other lethal weapons, in such a manner as to cause or  as  likely  to  cause death  of  or  injuries  to  any person or  persons, loss of or damage to and disruption of supplies of  services  essential  to  the  life  of  the  community,  and  to  achieve the objectives of the conspiracy, you all agreed to  smuggle fire-arms, ammunition, detonators, handgrenades  and high explosives like RDX into India and to distribute  the same amongst yourselves and your men of confidence  for  the purpose of  committing  terrorist  acts  and for  the  said  purpose  to  conceal  and  store  all  these  arms,  ammunition  and  explosives  at  such  safe  places  and  

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amongst yourselves and with your men of confidence till its  use for committing terrorist acts and achieving the objects  of criminal conspiracy and to dispose off the same as need  arises.  To organize training camps in Pakistan and in India  to  import  and  undergo  weapon  training  in  handling  of  arms, ammunitions and explosives to commit terrorist acts.  To harbour and conceal terrorists/co-conspirators, and also  to  aid,  abet  and  knowingly  facilitate  the  terrorist  acts  and/or any act preparatory to the commission of terrorist  acts and to render any assistance financial or otherwise for  accomplishing  the  object  of  the  conspiracy  to  commit  terrorist acts, to do and commit any other illegal acts as  were necessary for  achieving the aforesaid objectives  of  the  criminal  conspiracy  and  that  on  12.03.1993  were  successful in causing bomb explosions at Stock Exchange  Building, Air India Building, Hotel Sea Rock at Bandra, Hotel  Centaur  at  Juhu,  Hotel  Centaur  at  Santacruz,  Zaveri  Bazaar,  Katha  Bazaar,  Century  Bazaar  at  Worli,  Petrol  Pump adjoining Shiv  Sena Bhavan,  Plaza Theatre and in  lobbing handgrenades at Macchimar Hindu Colony, Mahim  and at Bay-52, Sahar International Airport which left more  than 257 persons  dead,  713 injured and property  worth  about  Rs.27  crores  destroyed,  and  attempted  to  cause  bomb explosions at Naigaum Cross Road and Dhanji Street,  all in the city of Bombay and its suburbs i.e. within Greater  Bombay.   And  thereby  committed  offences  punishable  under Section 3(3) of TADA (P) Act, 1987 and Section 120- B of IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of  TADA (P) Act, 1987 and read with Sections 302, 307, 326,  324, 427, 435, 436, 201 and 212 of Indian Penal Code and  offences  under  Sections  3  and  7  read  with  Sections  25  (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c)  of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of  the Explosive Substances Act, 1908 and Section 4 of the  Prevention  of  Damage to  Public  Property  Act,  1984  and  within my cognizance.”

In addition to the first charge, the appellant (A-119) was also  

charged  for  having  committed  the  following  offences  in  

pursuance of the criminal conspiracy described as under:

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At head Secondly: The  appellant,  in  pursuance of  the  aforesaid criminal conspiracy, has committed the following  overt acts:   

(a) The  appellant,  in  connivance  with  other  co- conspirators kept in her possession AK-56 rifles, its  ammunitions and hand grenades which she stored at  her  residence  at  the  instance  of  Anees  Ibrahim  Kaskar (AA) which was brought to her residence by  wanted  accused  Abu  Salem  Qayum  Ansari  (then  absconding now A-139) and Manzoor Ahmed Sayed  Ahmed (A-89) and thereby aided and facilitated the  distribution of  firearms, ammunition and explosives  smuggled  into  India  by  other  co-conspirators  for  committing terrorist acts and thereby committed an  offence punishable under Section 3 (3) of TADA.  

At  head  Thirdly:  The  appellant,  in  pursuance  of  the  aforesaid  criminal  conspiracy,  had  in  her  possession,  unauthorisedly,  AK-56  rifles,  its  ammunitions  and  hand  grenades  in  Greater  Bombay  which  is  specified  as  a  notified area under clause (f) of sub-section (1) of Section 2  of  TADA  and  thereby  committed  an  offence  punishable  under Section 5 of TADA.  

At  head  Fourthly: The  appellant,  in  pursuance  of  the  aforesaid  criminal  conspiracy,  with  an  intent  to  aid  terrorists  and  failed  to  give  information  to  police/magistrate contravened the provisions of the Arms  Act, 1959, the Arms Rules, 1962, the Explosive Substances  Act,  1908  and  the  Explosives  Rules,  1983  and  thereby  committed an offence punishable under Section 6 of TADA.  

Conviction and Sentence:

117) The  appellant  (A-119)  has  been  convicted  and  

sentenced as under:

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(i) RI for 5 years with a fine of Rs. 25,000/-, in default, to  

further undergo RI for 6 months under Section 3(3) of  

TADA (charge secondly)

ii) RI  for  5  years  along  with  a  fine  of  Rs.  75,000/-,  in  

default, to further undergo RI for a period of 1 ½ (one  

and a half) years. (charge fourthly)  

118) The Designated Court acquitted the appellant (A-119)  

on the first and third charge.  Challenging the conviction A-

119 filed Criminal Appeal No. 1001/2007 and Criminal Appeal  

No.  392/2011  has  been  preferred  by  the  prosecution  

challenging the acquittal of the appellant on the charge of  

conspiracy alone.

Evidence

119) The evidence  against  the  appellant  (A-119)  is  in  the  

form of:-

(i) confessions  made  by  other  co-conspirator;  (co-

accused); and

(ii) testimony of prosecution witnesses.  

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120) Confessional Statements of co-accused:

A brief account of the evidence brought on record in  

respect of A-119 is summarized as under:

Confesssional  Statement  of  Manzoor  Ahmed  Sayed  Ahmed (A-89)  

Confessional  statement  of  A-89  under  Section  15  of  

TADA has been recorded on 24.05.1993 (11:15 hrs.) (Part I)  

and 26.05.1993 (Part II) (17:30 hrs.). The confession of A-89  

with respect to the appellant is summarized hereunder:

“A-89 and A-139  went  to  the  first  floor  of  22  Mount  

Mary, Vidhyanchal Apartment and handed over the bag  

to  a  lady  and  told  that  the  bag  contains  arms  for  

causing riots and they were sent by Anis Bhai and that  

they would take the bag after some days.  After saying  

so, he gave the bag to that middle aged lady.  The lady  

opened the bag and after seeing its  contents,  closed  

the same and took it inside the room”.   

121) Upon perusal of the aforesaid confession, it is clear that  

the  appellant  was  in  conscious  possession  of  arms  and  

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ammunitions and explosives in a notified area of Bombay,  

and was also aware about the purpose for which they were  

to be used, that is, to cause riots in Bombay.  On the other  

hand,  according  to  counsel  for  the  appellant  (A-119),  the  

confession  of  A-89  cannot  be  relied  upon since  it  has  no  

evidentiary value.  On the other hand, Mr.  Rawal,  learned  

ASG while  relying on the decision of  this  Court  in  Mohd.  

Ayub Dar vs. State of Jammu and Kashmir, (2010) 9 SCC  

312  contended  that  the  conviction  and  sentence  under  

charge  secondly  and  fourthly  is  fully  justified.   He  relied  

heavily on the following conclusion arrived at by this Court  

which reads thus:  

“59. It would, therefore, be clear, as rightly contended by  Shri  Rawal  that merely because the guidelines  in  Kartar  Singh v.  State of Punjab were not fully followed, that by  itself does not wipe out the confession recorded. We have  already given our reasons for holding that the confession  was  recorded  by  A.K.  Suri  (PW  2)  taking  full  care  and  cautions  which  were  required  to  be  observed  while  recording the confession. 60. In Ravinder Singh v.  State of Maharashtra it has been  observed in  para 19 that  if  the confession made by the  accused  is  voluntary  and  truthful  and  relates  to  the  accused himself, then no further corroboration is necessary  and a conviction of the accused can be solely based on it.  It has also been observed that such confessional statement  is  admissible  as a  substantive piece of  evidence.  It  was  further  observed  that  the  said  confession  need  not  be  tested for the contradictions to be found in the confession  of  the  co-accused.  It  is  for  that  reason that  even if  the  

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other oral evidence goes counter to the statements made  in  the  confession,  one's  confession  can  be  found  to  be  voluntary and reliable and it can become the basis of the  conviction.”

In addition to the proposition of law mentioned above, the  

acceptability of confession of co-accused has already been  

discussed and considered in the earlier part of our judgment,  

there is no need to repeat the same once again.  

Other evidence:

Deposition of Dilip Bhandur Gosh (PW-283)

122) PW-283 deposed as under:

(i) At the relevant time, he was working as the watchman  

in the Vidhyanchal Society.

(ii) He further deposed that he will be able to identify the  

occupants of the said society in the year 1993

(iii) He stated that the appellant was residing on the first  

floor of B Wing of the said society  

(iv) He identified the appellant before the court.

The  aforesaid  evidence  corroborates  the  fact  that  the  

appellant  was  staying  on the  first  floor  of  the  Vidyanchal  

Building.  

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123) Upon  appreciation  of  the  entire  evidence,  the  

Designated Court held as under:

“32) With  regard  to  the  case  of  A-119  there  appears  similarity in many of the aspects with A-89.  With regard to  the defence criticism of the material evidence against her  being in  shape of  material  in  confession  of  A-89 all  the  dilation  made  about  the  submissions  canvassed  that  conviction  cannot  be  made  on  the  basis  of  material  in  confession of co-accused would be applicable.  In the said  context,  it  will  be necessary to add that  material  in the  confession of co-accused being now held to be substantive  piece  of  evidence  and  considering  the  circumstances  relevant to the role  played by A-119 i.e.  only  3 persons  being present when the relevant act of taking and storing  the weapons was effected and thus there being no other  corroborative  material,  which  could  have  been  available  the said matters in the confession will not be liable to be  discarded on the count of there being no corroborations as  stated earlier.   Now considering the period in which the  relevant had occurred and the period after which the police  had  received  the  information,  merely  because  evidence  does not reveal of any material being found at the house of  A-119 will not be a ground for discarding the said material  in the confession of A-89.  As a matter of fact, event the  said material itself reveals that the said weapons were to  be kept with her and were to be collected back by Abu  Salem; non-finding of weapon with her clearly appears to  be insignificant circumstance.  

33) Thus  the  evidence  having  clearly  denoted  that  weapons were kept with her for storage purpose and they  were to be collected back, A-119 cannot be said to be in  possession  of  contraband  material  as  all  the  time  the  possession of the said weapons would have been that of  main conspirator who had kept the same with her.  In view  of the same, alike A-89 she cannot be said to be guilty for  commission of  offence under Section 5 of TADA and the  relevant  sections  under  the  Arms  Act,  for  which  she  is  charged  at  the  trial.   Similarly,  for  the  same  reasons  because  of  which  A-89  cannot  be  said  to  be  guilty  for  offence of conspiracy.  She also cannot be said tobe guilty  for  commission  of  such  offence.   It  is  indeed  true  that  considering the role played by her in storing the weapons  

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in her house or even for A-89 being also instrumental for  taking the said weapons does create a strong suspicion of  both  of  them  being  man  of  confidence  of  prime  conspirator.  However, since shrouding of suspicion cannot  take the place of proof and there being paucity of material  that  both  of  them  had  knowledge  of  object  of  any  particular conspiracy both of them cannot be held guilty for  commission of offence of conspiracy.  Thus, alike A-89 she  will be also required to be held not guilty for commission of  offence for which she was charged at head firstly.

34) However, considering the repeated participation of A- 119 in allowing absconding accused Anees Ibrahim to store  the weapons at her house or with her, herself taking up the  weapons  in  spite  of  knowing  the  purpose  for  which  the  same  were  sent  by  Anees,  the  evidence  pertaining  to  second occasion clearly revealing that the weapons were 2  AK-56  Rifles  and  the  ammunition  and  thereby  all  the  evidence establishing that the same being brought to India  for  commission  of  terrorists  Act  i.e.  by  and  for  the  terrorists, act committed by her will clearly fall within the  four corners of Section 3(3) of TADA.  Similarly, her act of  keeping such a material in the house, even after knowing  the  purpose  for  which  the  same  were  brought  to  India  clearly  reveals  that  by  the  same  she  was  aiding  and  abetting the  terrorists  by  contravening  the provisions  of  the Arms Act.  As such she will be required to be held guilty  for commission of offence under Section 6 of TADA.  

35) As a result of the aforesaid discussion, Point No. 163  to 166 and so also relevant points framed for offence of  conspiracy will be required to be answered in consonance  with conclusions arrived during the aforesaid discussion i.e.  affirmative for  holding A-89 and A-119 guilty  for  offence  under  Section  3(3)  of  TADA  and  A-119  also  guilty  for  offence under Section 6 of TADA and negative with regard  to the other charges framed against them at a trial.  Thus  Point No. 163 to 166 stands answered accordingly.”

124) The above discussion shows that the Designated Court  

convicted the appellant under Section 3(3) and Section 6 of  

TADA only on the basis of the confessional statement of A-89  

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and the evidence of  PW-283 Chowkidar  (watchman in the  

building).  Admittedly, the appellant, at no point of time, had  

made any confession admitting her guilt.  Equally, it is not in  

dispute that no recovery has been affected from her house.  

The  only  incriminating  circumstance  against  her  is  the  

statement of A-89 that while handing over a plastic bag, he  

mentioned that it contains AK-56 rifle and other arms.  It is  

also his claim that after knowing the contents, she received  

the same and kept it in her house.   

125) Taking note of all these aspects, absolutely, there is no  

case insofar as the main conspiracy against her and we are  

satisfied that the Designated Court has rightly acquitted her  

of the main charge i.e. charge firstly.  However, upon perusal  

of  the  entire  evidence,  the  judgment  passed  by  the  

Designated Court is upheld to the extent of Charge secondly  

and fourthly.  

126) In view of the minimum sentence of 5 years prescribed  

under Sections 3(3) and 6 of TADA, we have no other option,  

but to confirm the conviction and sentence as awarded by  

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the Designated Court.  Consequently, the appeal fails and is  

accordingly dismissed.

Appeal by the State of Maharashtra through CBI: Criminal Appeal No. 392 of 2011 127) Though Mr. Rawal, learned ASG, prayed for conviction  

of  A-119  for  the  charge  framed  at  head  firstly,  i.e.,  

conspiracy, in view of the above discussion, we are satisfied  

that the Designated Court was justified in arriving at such a  

conclusion and we fully  agree with  the same.  Hence,  the  

appeal filed by the State is liable to be dismissed.   

128) The  appellants-accused  concerned  are  directed  to  

surrender within a period of 4 (four)  weeks from today in  

order  to  serve  the  remaining  period  of  sentence.  The  

Designated Court is directed to take appropriate steps for  

their custody in case of failure to comply with the above said  

direction.   

129) For  convenience,  we have reproduced the conclusion  

arrived at in respect of all the appeals dealt with under this  

part in Annexure ‘A’ appended hereto.

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130) We  must  in  the  end  express  our  deep  gratitude  to  

learned senior counsel/counsel for both sides who rendered  

relentless assistance and support to the Bench in arriving at  

its  decision.  Their  efforts  are  salutary  and  we  record  our  

appreciation for the same.

.…………………………J.   (P. SATHASIVAM)    

                                        ……………………….. …J.                                 

NEW DELHI;                                                (DR. B.S.  CHAUHAN)  MARCH 21, 2013.  

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Annexure ‘A’

S.N o.

Criminal Appeal Accused Name and Number Sentence by  Designated  Court

Award by  Supreme Court

1. 1060/2007 Sanjay Dutt (A-117) RI for 6 years Reduced to RI for  5 years

2. 1102/2007 Yusuf Mohsin Nulwalla (A-118) RI for 5 years Confirmed 3. 1687/2007 Kersi Bapuji Adajania (A-124) RI for 2 years Reduced to RI for  

1 year 4. 596/2011  

(By State) Ajai Yash Parkash Marwah (A-120) Acquitted State appeal  

dismissed 5. 1104/2007

       with

1026/2012  (By State)

Samir Hingora (A-53) RI for 9 years Reduced to the  period already  undergone.

Dismissed 6. 1001/2007

      with

392/2011  (By State)

Zaibunisa Anwar Kazi (A-119) RI for 5 years Confirmed

Dismissed

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