STATE OF MAHRASHTRA Vs FAZAL REHMAN ABDUL
Case number: Crl.A. No.-000418-000418 / 2011
Diary number: 38822 / 2009
Advocates: ARVIND KUMAR SHARMA Vs
SHEKHAR KUMAR
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APPEALS FILED BY THE STATE AGAINST ACQUITTAL (PART- 5)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 418 OF 2011
State of Maharashtra …Appellant
Versus
Fazal Rehman Abdul … Respondent
WITH
Criminal Appeal No. 409 of 2011
WITH
Criminal Appeal No. 601 of 2011
WITH
Criminal Appeal No. 404 of 2011
WITH
Criminal Appeal No. 405 of 2011
WITH
Criminal Appeal No 394 of 2011
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WITH
Criminal Appeal No. 1033 of 2012
WITH
Criminal Appeal No. 594 of 2011
WITH
Criminal Appeal No. 402 of 2011
WITH
Criminal Appeal No. 1022 of 2012
WITH
Criminal Appeal No. 393 of 2011
WITH
Criminal Appeal No. 391 of 2011
WITH
Criminal Appeal No. 1027 of 2012
WITH
Criminal Appeal No. 597 of 2011
WITH
Criminal Appeal No. 407 of 2011
WITH
Criminal Appeal No. 1025 of 2012
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WITH
Criminal Appeal No. 599 of 2011
WITH Criminal Appeal No. 395 of 2011
AND
Criminal Appeal No. 397 of 2011
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CRIMINAL APPEAL NO. 418 OF 2011
State of Maharashtra …Appellant
Versus
Fazal Rehman Abdul … Respondent
J U D G M E N T
DR. B.S. CHAUHAN, J.
1. This criminal appeal has been preferred against the impugned
judgment and order dated 2.8.2007, passed by a Special Judge of the
Designated Court under the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as the ‘TADA’) in the
Bombay Blast Case No. 1/93, acquitting the respondent of all the
charges.
2. Facts and circumstances giving rise to this appeal are that :
A. As the facts of this case and all legal issues involved herein
have been elaborately dealt with in the connected appeal i.e. Criminal
Appeal No. 1728 of 2007 [Yakub Abdul Razak Memon v. State of
Maharashtra thr. CBI], it may be pertinent to mention only the
relevant facts and charges against the respondent.
B. Bombay Blast took place on 12.3.1993 in which 257 persons
lost their lives and 713 were injured. In addition thereto, there had been
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loss of property worth several crores. The Bombay police investigated
the matter at initial stage but subsequently it was entrusted to the
Central Bureau of Investigation (hereinafter referred to as ‘CBI’) and
on conclusion of the investigation, a chargesheet was filed against a
large number of accused persons. Out of the accused persons against
whom chargesheet was filed, 40 accused could not be put to trial as
they have been absconding. Thus, the Designated Court under TADA
framed charges against 138 accused persons. During the trial, 11
accused died and 2 accused turned hostile. Further the Designated
Court discharged 2 accused during trial and the remaining persons
including respondent (A-76) stood charged.
C. The respondent had been charged for general conspiracy which
is framed against all the accused persons for the offences punishable
under Section 3(3) TADA and Section 120-B of Indian Penal Code,
1860 (hereinafter referred to as the ‘IPC’) read with Sections 3(2)(i)(ii),
3(3), (4), 5 and 6 TADA and read with Sections 302,
307,326,324,427,435,436, 201 and 212 IPC and offences under
Sections 3 and 7 read with Sections 25 (I-A), (l-B)(a) of the Arms Act,
1959, Sections 9-B (1)(a)(b)(c) of the Explosives Act, 1884, Sections
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3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4
of the Prevention of Damage to Public Property Act, 1984.
D. In addition, the respondent had
been charged for persuading his brother-in-law Firoz Amani Malik (A-
39) to undergo weapons’ training in Pakistan and keeping in his
possession 4 handgrenades brought to him by Firoz Amani Malik (A-
39) and for handing over the same to Mohd. Jabir (A-93-dead),
showing that the same had been smuggled into India for committing
terrorist activities.
E. The Designated Court after
conclusion of the trial acquitted the respondent of all the charges.
Hence, this appeal.
3. Shri Mukul Gupta, learned senior counsel appearing for the
appellant has submitted that the respondent had been responsible to
send the co-accused to Dubai, and further to Pakistan to have training
for handling the arms, ammunition and explosives, and therefore, his
acquittal for all the charges is liable to be reversed.
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4. On the contrary, learned counsel appearing for the respondent
has submitted that the co-accused (A-39), who was brother-in-law of
respondent himself, had not been aware of the purpose for which he
had been taken to Dubai. The respondent cannot be held responsible
for sending Firoz (A-39) for any criminal activity. Thus, the well-
reasoned judgment of the Special Judge does not require interference.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
There is no confession by the respondent accused (A-76).
6. Confessional statement of Firoz @ Akram Amani Malik (A-39)
revealed that the said respondent was the brother-in-law of Firoz @
Akram Amani Malik (A-39). The said accused Firoz @ Akram Amani
Malik (A-39) had been awarded the death sentence in this very case
and his appeal is being heard alongwith this case.
Respondent (A-76) used to advise the said accused (A-39) to go
to Dubai and the said accused also expressed his willingness and desire
to go to Dubai in the month of January, 1993. He (A-39) got a passport
and went to Dubai with Miyaz. After getting a visa they left the airport.
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One person named Ayub Bhai took them to a building near Kadar
Hotel. There they found another person Nasim who took them to a flat
on the 2nd floor. Nasim told him there that he would be going to
Pakistan and his purpose for this visit would be explained later.
7. Prakash Khanvilkar (PW-513), deposed about the recovery of
handgrenades from Mohmed Jabir Abdul Latif Mansoor (A-93).
However, he does not make any reference so far as the respondent
Fazal Rehman Abdul Khan (A-76) is concerned.
8. The Designated Court after appreciating the entire evidence
came to the conclusion that there was nothing on record to show that
the respondent though facilitated sending Firoz @ Akram Amani
Malik (A-39) to Dubai, had any knowledge of the purpose of going to
Dubai or Pakistan for the simple reason that Firoz @ Akram Amani
Malik (A-39) himself disclosed that he was told in Dubai that he
would go to Pakistan and the purpose for going there would be
explained to him later on. The confessional statement of A-39 did not
reveal the involvement of the respondent in persuading A-39 to
undergo weapons’ training in Pakistan.
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9. This Court has laid down parameters for interference against
the order of acquittal time and again. The appellate court should not
ordinarily set aside a judgment of acquittal in a case where two views
are possible, though the view of the appellate court may be the more
probable one. While dealing with a judgment of acquittal, the
appellate court has to consider the entire evidence on record, so as to
arrive at a finding as to whether the views of the trial court were
perverse or otherwise unsustainable. The appellate court is entitled to
consider whether in arriving at a finding of fact, the trial court had
failed to take into consideration admissible evidence and/or had taken
into consideration the evidence brought on record contrary to law.
Similarly, wrong placing of burden of proof may also be a subject-
matter of scrutiny by the appellate court. In exceptional cases where
there are compelling circumstances, and the judgment under appeal is
found to be perverse, the appellate court can interfere with the order
of acquittal. The appellate court should bear in mind the presumption
of innocence of the accused and further that the trial court's acquittal
bolsters the presumption of his innocence. Interference in a routine
manner where the other view is possible should be avoided, unless
there are good reasons for interference. The findings of fact recorded
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by a court can be held to be perverse if the findings have been arrived
at by ignoring or excluding relevant material or by taking into
consideration irrelevant/inadmissible material. The finding may also
be said to be perverse if it is “against the weight of evidence”, or if the
finding so outrageously defies logic as to suffer from the vice of
irrationality.
10. We had been taken through the
evidence by Shri Mukul Gupta, learned senior counsel for the
appellant, but we do not find any reason to interfere with the cogent
reasons given by the Special Judge. The appeal lacks merit and is
accordingly dismissed.
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CRIMINAL APPEAL NO. 409 OF 2011
State of Maharashtra …Appellant
Versus
Manjoor Qureshi & Ors. … Respondents
11. This criminal appeal has been preferred against the impugned
judgment and order dated 2.8.2007 passed by a Special Judge of the
Designated Court under the TADA in Bombay Blast Case No. 1/93,
acquitting the respondents of all the charges. The respondents had
been charged in addition to the common charge of conspiracy under
Section 3(3) TADA and Section 120B IPC, read with the other
provisions. They were charged with knowingly abetting and
facilitating the commission of terrorist acts and acts preparatory to
terrorist acts as they had agreed to undergo weapons’ training in
Pakistan in handling of arms and ammunition and explosives for
committing terrorist acts and for that purpose visited Dubai but could
not go to Pakistan as arrangement for training there could not be made.
They attended the conspiratorial meeting at Dubai alongwith
conspirators to plan the commission of terrorist acts.
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12. Mohmed Iqbal Ibrahim S/o Shaikh Ibrahim (A-127) has died.
Thus, this appeal stood abated qua him.
13. After conclusion of the trial, the Designated Court acquitted the
respondents of all the charges.
Hence, this appeal.
14 Shri Mukul Gupta, learned senior counsel for the appellant-
State has submitted that the Designated Court has erred in acquitting
the respondents of the charge of conspiracy. The respondents had gone
to Dubai to go to Pakistan for having training to handle the arms and
ammunition and explosives and this is a matter of chance that they
came back as the training could not be arranged but the evidence on
record clearly established that they intended to have the training and
subsequently to participate in the terrorist activities. Therefore, the
appeal deserves to be allowed.
15. Ms. Farhana Shah, learned counsel for the respondents has
submitted that there is nothing on record to establish that either of the
respondents had any idea or knowledge or they had been informed by
any other co-accused that they would be sent for training to Pakistan to
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handle the arms etc. and rather they had an impression that they would
be taught handling the arms to be used for self-defence. Thus, no
imputation of conspiracy can be established. The appeal lacks merit
and is liable to be dismissed.
16. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
17. Confession of Shaikh Kasam @ Babulal Ismail Shaikh (A-109):
His confession revealed that he was working as an Office Boy
in the construction company of Ijaz Khan in 1992. The said office was
closed after riots in Bombay in December 1992. Some persons namely
Munna, Karimullah, Shehjada used to come to the said construction
company of Ijaz and thus the accused developed acquaintance with
them. Ijaz used to travel between Bombay and Dubai. On 12.1.1993,
Mr. Ethesham (A-58) informed him that Ijaz had come from Dubai and
wanted to meet the respondent (A-109). The accused met Ijaz Khan at
the house of Haji Yakub in presence of Anwar. Ijaz told them that in
case something wrong happens to them they can talk to him over the
telephone. Subsequently, they left leaving Munna and Anwar there.
Yakub (AA) later told him that riots were increasing and he would take
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them out of India for training and using revolvers for saving
themselves from the riots. The respondent (A-109) brought his
passport from his house and delivered the same to Haji Yakub.
Subsequently, the respondent (A-109) went to Dubai alongwith Murad,
Ethesham, Shakil, Shahnawaz on 14.2.1993.
Yakub Haji came to meet them and said that training could not
be given this time, and it would be done next time. They remained for
15 days in Dubai and their visa expired. They then came back to
Bombay. Before going to Dubai, Yakub asked them to take an oath by
placing their hands on the Quran that whatever they are doing, it was
for the sake of Islam and they would not fight with each other and
would not divulge their talks to others.
18. Confession of Sultan-E-Rome Sardar Ali Gul (A-114):
He was working as a driver with a Marwari at Walkeshwar.
After the demolition of Babri Masjid he lost his job because his
employer was afraid of him as he was a Muslim. The accused (A-114)
wanted to go to Saudi Arabia for search of work. Therefore, he got
his passport ready. In the month of January, 1993, he met Qamar
Khan. Ijaz Khan and Ethesham (A-58) talked with them for 5-10
minutes. Then Ijaz told him that he had to go to Ethesham as and
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when he was called and he would be paid Rs.1,000/-, a pair of clothes
and shoes. Ethesham would train him in working a revolver.
On 14.2.1993, he went to Dubai alongwith the others and
stayed there for 14 days without any work/training and came back to
India. He further disclosed that they were not given any training or any
lectures (Taqreer) in Dubai.
19. Confession of Abdul Aziz Abdul Kader (A-126):
He also accompanied the other co-accused to Dubai. He
corroborated the version of other co-accused for going to Dubai and
coming back to Bombay. Yeda Yakub advised him that he should
learn to handle the arms as there was tension prevailing all round and
the Muslims were being suppressed and beaten everywhere and
therefore such training was necessary for their self defence, especially
to face the Hindus. Muslims have suffered heavy losses. In case riots
occurred in future then by learning the handling of weapons
Muslims can effectively deal with Hindus. When he (A-126) was in
Dubai he went to see a person who knew to his brother and during the
conversation he enquired from the respondent (A-126) the purpose for
which he had gone to Dubai. The respondent (A-126) told him that he
had come for taking training of handling of arms and on their return
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journey they would take some goods along with them to earn some
money in India. He cautioned the respondent (A-126) that the work
was not good and advised him to go back.
20. Confession of Mohd. Iqbal Ibrahim (A-127):
He corroborated the version of other co-accused and had
admitted going to Dubai but he was not aware of the purpose for what
he had been taken to Dubai. During their stay in Dubai, people used to
talk occasionally about weapons. After 10-14 days of reaching Dubai,
they came back to Bombay. He had been to Dubai three times earlier.
After coming back to India he came to know that he was taken to
Dubai for training in handling of arms.
21. Confession of Murad Ibrahim Khan (A-130):
He corroborated the version given by other co-accused in the
confessional statement that he had gone to Dubai. He further revealed
that one day when they were in Dubai, Shakil told him that he would
go to Pakistan for weapon training but the arrangement had not yet
been finalized. After a few days they came to know that they had been
taken for weapon training but arrangements could not be made and
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they had to return to Bombay and on expiry of their visa they came
back.
22. Confessional statement of Shaikh Mohmed Ethesham (A-58):
He disclosed that he was a close associate of Yeda Yakub and
was involved in all kinds of smuggling activities. He revealed about
the smuggling of arms and said that on 7.2.1993 when he was at the
place of Hazi Yakub @ Yeda Yakub, and the latter informed him,
Akbar, Babulal and Shahnawaz that Muslims had suffered a
considerable loss in the riots and that they had to go to Dubai for
training of arms and ammunition to protect themselves. He,
Shahnawaz, and Babulal were ready to go to Dubai. Thus, they had
gone to Dubai but came back without having any training.
23. Confession of Shahnawaz Khan (A-128):
His confessional statement revealed that he had gone to Dubai
alongwith other co-accused. He came to know after going to Dubai
that they were going for arms’ training to be held in Pakistan.
However, due to some reason arrangements could not be made for
training. Thus, he came to Bombay alongwith other co-accused namely
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Iqbal, Etheshem, Babulal and Shahid on 1.3.1993 and the remaining
persons reached later on.
24. The Designated Court after appreciating the entire evidence has
drawn a conclusion that the respondents may be under the impression
that they were being sent there for training of arms so that it can be
used in self defence and they came to know only when they were in
Dubai that they were being sent for training to Pakistan. However, the
training could not be finalized/arranged and they came back to
Bombay. Therefore, the learned Designated Court had drawn the
inference that as they did not have knowledge that they were going to
Pakistan for training in handling of arms they could not be held guilty.
25. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
26 We have gone through the entire record and we are of the view
that none of the respondents was aware of the intention of the
conspirators to send the respondents to Pakistan for training to deal
with the arms and ammunition rather they had been taken away to
Dubai on false pretext and had been misguided. Thus, we fully agree
with the inference drawn and conclusion reached by the Designated
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Court. We find no reason to interfere with the same. The appeal lacks
merit and is accordingly dismissed.
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CRIMINAL APPEAL NOS. 601 OF 2011
State of Maharashtra through CBI …Appellant
Versus
Krishna Sadanand Mokal & Ors. … Respondents
27. This criminal appeal has been preferred against the impugned
judgment and order dated 2.8.2007 passed by the Special Judge of the
Designated Court under the TADA, acquitting the respondents of all the
charges under TADA and Arms Act.
28 Facts and circumstances giving rise to this appeal are that all
the respondents had been working as police constables in the Police
Department of Bombay and at the relevant time, i.e., January 1993 were
posted as constables at Police Station, Shrivardhan. After the Bombay
blast on 12.3.1993, they had been charged for conspiracy in general as
well as under Section 3(3) TADA and other charges for assisting and
facilitating the accused persons to smuggle and transport the contraband
articles, i.e., arms and ammunition and permitting the said goods to be
taken further in lieu of bribe.
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The case against the said respondents had been that on 8th/9th of
January, 1993, the arms, ammunition and explosives were smuggled in
India and after the landing at Dighi Jetty when the contraband were
being transported to Bombay in trucks, the said trucks were intercepted
by the police of Shrivardhan Police Station headed by Inspector Patil
(A-116). The police checked those vehicles for 10-15 minutes and
permitted them to go after completing a detailed bargain with the
conspirators/accused and reaching the settlement of the huge amount of
Rs.7,00,000/- as a bribe. The accused did not have cash thus, they had
given 5 silver ingots as security which were subsequently returned by
the police officials to the accused persons after the negotiated amount
was paid. The respondents/constables were also put to trial alongwith
other co-accused (police officials) but they have been acquitted only on
the ground that there was no iota of evidence to show that the
respondents herein were also members of the Shrivardhan Police
Station which had intercepted those trucks.
Hence, this appeal.
29. Mr. Mukul Gupta, learned senior counsel appearing for the
appellant-State has submitted that the respondents were police
constables posted at Police Station Shrivardhan and therefore, they
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were also the members of the party which intercepted the trucks
carrying the contraband. The learned Designated Court failed to
appreciate the evidence on record and has wrongly acquitted the
respondents of the charges leveled against them.
30. Ms. Farhana Shah, learned counsel appearing for the
respondents has submitted that it is nobody’s case that all the police
force posted at Shrivardhan Police Station had gone to check/intercept
the trucks carrying the contraband. In the instant case, there is nothing
on record to show that either of the respondents was a member of the
party which intercepted the trucks carrying the contraband. Thus, the
appeal is liable to be dismissed.
31. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
32. In the confession of Mohmed Kasam Lajpuria (A-136) recorded
by Superintendent of Police, CBI at New Delhi Camp, Mumbai, he
disclosed that he was a close associate of Tiger Memon (AA) etc. and
had been indulged in various criminal activities including smuggling.
He had been participating in the landings and facilitating the
transportation of the contraband and smuggled goods. In January,
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1993, he planned a landing alongwith Mohd. Dossa, Salim Kutta (A-
134), Firoz, Qyum Sajani, Arif Lambu and the landing took place at
Dighi Jetty. After getting the contraband goods from the sea to the
seashore the same were loaded in two trucks arranged by Uttam Potdar
(A-30). The trucks were intercepted by police headed by Inspector Patil
and 6-7 constables from P.S. Shrivardhan. Inspector Patil (A-116)
asked Saleem and Firoz whether they were landing and transporting the
contraband without making any payment to the police. Meanwhile,
Uttam Potdar (A-30) also came alongwith one Custom Officer named
Gurav (A-82) in a jeep. Uttam Potdar (A-30) spoke to the police people
and it was decided that a sum of Rs.8,00,000/- should be paid to the
police. As the accused persons did not have Rs.8,00,000/- in cash, the
police kept 5 silver ingots with them as a security. Inspector Patil (A-
116) asked them to take the silver ingots back after making the payment
in cash.
33. Uttam Potdar (A-30) revealed that he was a very close associate
of smugglers including Tiger Memon (AA) and Mechanic Chacha (A-
136) etc., and had been participating in landing and transportation of the
contraband. He was called by Shri R.K. Singh, Assistant Collector (A-
102) on 4.12.1993 through a custom sepoy and asked about the earlier
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day’s landing. Shri Gurav, Custom Inspector (A-82) also had contact
with the said accused (A-30) and after negotiating, it was decided to
settle the issue of money. Accordingly, the matter was settled and
amount was paid to the custom officers. This accused further revealed
the mode of payment per landing to the Shrivardhan Police Station as
well as the custom police. He revealed the incident on 9.1.1993 when
the trucks were intercepted by the Shrivardhan Police. The vehicles
were checked by two Hawaldars, named Mali and Muneshwar. He fully
corroborated the statement of Mechanic Chacha (A-136) that as they
had no money to pay to the police, they paid the silver ingots as
security.
34. Dilip Pansare (PW.97) deposed that he was working as a
mechanic in the State Transport Corporation at Shrivardhan Depot. He
was close associate of Uttam Potdar (A-30). He accompanied Uttam
Potdar (A-30) on 9.1.1993 when the vehicles carrying the contraband
after landings were intercepted by Shrivardhan Police Station. He
deposed that the vehicles after interception were thoroughly checked by
two constables. The police team was headed by Inspector Patil (A-116)
and there were 6-7 constables with him. He also gave full details of
negotiation/settlement of the amount of bribe for releasing the vehicles
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and giving 5 silver ingots as security as they did not have the cash.
Thus, he corroborated the statement of Uttam Potdar (A-30) as well as
of Mechanic Chacha (A-136).
35. In the confessions of Dawood Phanse (A-14), he has deposed
that he was a landing agent and was facilitating transportation of
smuggled goods of various smugglers in partnership with Sharif Abdul
Gafoor Parkar (A-17) including Tiger Memon (AA). This accused (A-
14) and Dadabhai (A-17) corroborated the version so far as this case is
concerned only to the extent of payment of money to Shrivardhan
Police Station for two landings. Mohd. Salim (A-134) corroborated the
case to the extent of interception of vehicles carrying the contraband on
9.1.1993 by Shrivardhan Police at Gongdhar Phata. The police team
consisted of one Inspector and few constables.
36. If the evidence of all the witnesses is read conjointly, it
becomes evident that none of the witnesses had named either of the
respondents. The other persons of the police team who had been named
stood convicted. The respondents have been acquitted on the ground
that in absence of Test Identification Parade or their identification by
any of the witnesses/accused in the court, it was not safe to make a
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guess work that they or either of them could also be member(s) of the
said police team which intercepted the contraband. The evidence on
record reveal that police team headed by Inspector Patil was having 6-7
constables. There is nothing on record on the basis of which it could be
assumed that the respondents were the members of the said team. It is
nobody’s case that the total strength of the Shrivardhan Police Station
was 7 or 8, so it can be presumed that all except one or two might have
come. The Sarpanchas of 7 villages in close proximity, deposed in
court to falsify the alibi taken by the respondents that they were on
police patrolling in their villages. Statements made by the Sarpanchas
that none of the respondents had visited their village on patrolling
cannot be a proof that the respondents were members of the team,
which intercepted the said trucks.
37. The learned Designated Court dealt with the issue elaborately
and came to the conclusion that there was no material to connect the
respondents with the aforesaid incident and it was not safe to presume
that the respondents were also the members of the police team which
intercepted the said trucks carrying contraband.
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38. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
39. In view of the above, we do not see any cogent reason to
interfere with the impugned judgment. The appeal lacks merit and is,
accordingly, dismissed.
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CRIMINAL APPEAL NO. 404 OF 2011
State of Maharashtra through CBI …Appellant
Versus
Moiddin Abdul Kadar Cheruvattam … Respondent
40. This criminal appeal has been preferred against the impugned
judgment and order dated 2.8.2007, passed by the Special Judge of
the Designated Court under the TADA in the Bombay Blast Case No.
1/93, acquitting the respondent of all the charges.
41. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he was also
charged under Section 3(3) TADA, for collecting the funds for
terrorist activities and distributing the same for propaganda against
Hindus after the riots in Bombay after demolishing of Babri Masjid in
December 1992.
B. The Special Judge under TADA has discarded all the
confessional statements on the ground that the officer who recorded
the confessional statement of the respondent and other co-accused did
not fulfill the requirement of law by giving any warning to the said
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persons telling (i) that they were not bound to make a confession and
(ii) if made, it could be used against them as evidence, and thus
acquitted them of all the charges.
Hence, this appeal.
42. Shri Mukul Gupta, learned senior counsel appearing for the
appellant has tried to impress upon us that undoubtedly the warning
had not been administered in the first part of any of the said
confessional statements but only after reflection period, when the said
persons again appeared for making their respective statements they
had been warned properly. If Part I and Part II of their statements are
read together, it is evident that the said accused persons were fully
aware that they were not bound to make the confession and if made, it
would be used against them.
43 On the contrary, learned counsel for the respondent (A-48) has
opposed the appeal contending that before the confession is recorded,
Section 15 TADA and Rule 15(3) of the TADA Rules, require that the
maker of the statement must be explained that he was not bound to
make such statement and if so made, would be used against him.
Thus, no interference is warranted.
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44. We have considered the rival submissions made by learned
counsel appearing for the parties and perused the record.
45. Evidence against the respondent (A-48):
(a) Confessional statement of respondent (A-48)
(b) Confessional statement of Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @ Salim Tonk (A-20)
(c) Confessional statement of Aziz Ahmed Mohammed Ahmed Shaikh (A- 21)
(d) Confessional statement of Ismail Abbas Patel (A-80)
46. First part of the confessional statement of the respondent (A-48)
recorded on 14.5.1993, reads as under:
“My name is Mohiuddin Abdul Kadar, age 30 years, occupation Sales Representative, Dubai, Place of residence: 52/5, Zakaria Masjid St., Mumbai-9. I passed S.S.C. in the year 1978.
I myself informed the Inspector of Crime Branch that I wanted to make the confessional statement voluntarily. I was arrested by the Bombay Police on 3.4.93 from my residence at Dongri in connection with the Bombay bomb Blast case. For this reason, I wanted to give my confessional statement.
I have been explained about my making the confessional statement that the confessional statement, which I am going to make will be used against me.
In this connection, I was given 48 hours. For reflection, I will be produced on 17.5.93, if I want to make the confessional statement.”
Sd/- Sd/- DCP Accused”
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47. Similarly the first part of the confessional statements of co-
accused Ahmed Shah Khan Mubarak Shah @ Salim Khan Durani @
Salim Tonk (A-20), Aziz Ahmed Mohammed Ahmed Shaikh (A-21)
and Ismail Abbas Patel (A-80) are very cryptic. Further, there is no
explanation or warning therein as required by law. Therefore, such
confessions are liable to be discarded.
48. This Court in S.N. Dube v. N.B. Bhoir & Ors., (2000) 2 SCC
254 held that the compliance of Section 15 TADA and Rule 15 of
TADA Rules, is mandatory. It is necessary before making of the
confessional statement that the accused must be warned that
confessional statement if made will be used against him and further
that he is not bound to make the same.
“Writing the certificate and making the memorandum are thus made mandatory to prove that the accused was explained that he was not bound to make a confession and that if he made it it could be used against him as evidence, that the confession was voluntary and that it was taken down by the police officer fully and correctly. These matters are not left to be proved by oral evidence alone. The requirement of the rule is preparation of contemporaneous record regarding the manner of recording the confession in the presence of the person making it.”
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The court further clarified that a confessional statement would
not be adversely affected if the certificate and memorandum are
mixed or the format so prescribed is not used by the recording officer.
49. This Court in Lal Singh v. State of Gujarat & Anr., (2001) 3
SCC 221 held that:
“23. In view of the settled legal position, it is not possible to accept the contention of learned Senior Counsel Mr Sushil Kumar that as the accused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh v. State of Punjab (1994) 3 SCC 569, were not followed. In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i.e. before 11-3-1994. Further, despite the suggestion made by this Court in Kartar Singh case, the said guidelines are neither incorporated in the Act nor in the Rules by Parliament. Therefore, it would be difficult to accept the contention raised by learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Kartar Singh case that if suggested guidelines are not followed then confessional statement would be inadmissible in evidence. Similar contention was negatived by this Court in S.N. Dube (supra), by
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holding that a police officer recording the confession under Section 15 is really not bound to follow any other procedure and the rules or the guidelines framed by the Bombay High Court for recording the confession by a Magistrate under Section 164 CrPC; the said guidelines do not by themselves apply to recording of a confession under Section 15 of the TADA Act and it is for the court to appreciate the confessional statement as the substantive piece of evidence and find out whether it is voluntary and truthful. Further, by a majority decision in State v. Nalini, (1999) 5 SCC 253, Court negatived the contentions that confessional statement is not a substantive piece of evidence and cannot be used against the co-accused unless it is corroborated in material particulars by other evidence and the confession of one accused cannot corroborate the confession of another, by holding that to that extent the provisions of the Evidence Act including Section 30 would not be applicable. The decision in Nalini (supra) was considered in S.N. Dube (supra). The Court observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it and that the correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co-accused also.”
50. In Bharatbhai v. State of Gujarat, (2002) 8 SCC 447, this
Court held:
“46. In view of the aforesaid discussion, our conclusions are as follows:
A. Writing the certificate and making the memorandum under Rule 15(3)(b) is mandatory.
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B. The language of the certificate and the memorandum is not mandatory. C. In case the certificate and memorandum is not prepared but the contemporaneous record shows substantial compliance with what is required to be contained therein, the discrepancy can be cured if there is oral evidence of the recording officer based on such contemporaneous record. D. In the absence of contemporaneous record, discrepancy cannot be cured by oral evidence based on the memory of the recording officer.
47. In the present case, admittedly Rule 15(3)(b) has not been complied. No memorandum as required was made. There is also no contemporaneous record to show the satisfaction of the recording officer after writing of confession that the confession has been voluntarily made. The confession of Accused 7 does not even state that it was read over to him. Thus, the confessional statements are inadmissible and cannot be made the basis of upholding the conviction. Once confessional statements are excluded the conviction cannot be sustained.”
51. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
52. In view of the above, we are of the considered opinion that the
learned Designated Court rightly rejected the confessional statement
made by the respondent and the co-accused as the first part of these
statements has not been recorded in consonance with the requirement
of statutory provisions.
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We concur with the view taken by the Special Judge. The
appeal lacks merit, and is accordingly, dismissed.
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CRIMINAL APPEAL NO.405 OF 2011
State of Maharashtra through CBI …Appellant
Versus
Asfaq Kasam Hawaldar … Respondent
53. This appeal has been preferred against the final judgment and
order dated 2.8.2007 passed by the Special Judge of the Designated
Court under the TADA in Bombay Blast Case No.1 of 1993, acquitting
the respondent (A-38) charged for larger conspiracy and under Section
3(3) TADA.
54. In addition to the charge of conspiracy, Respondent (A-38) has
also been charged for the commission of offences punishable u/s 3(3)
TADA.
55. The case of the prosecution against him has been that:
A. The accused (A-38) along with his co-conspirators participated
in the landing and transportation of arms, ammunition and explosives at
Shekhadi, Taluka: Shrivardhan District: Raigad, which were smuggled
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into the country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon
(AA) and associates for being used in commission of terrorist acts.
B. That the accused (A-38) transported arms, ammunition and
explosives which took place on 7.2.1993 which were smuggled into the
country by Mushtaq @ Ibrahim @ Tiger Abdul Razak Memon and his
associates for commission of terrorist acts in motor truck no. MHT
6745 driven by this accused from Shekhadi to Wangni Tower.
C. The Special Judge after conclusion of the trial acquitted the
respondent of all the charges.
Hence, this appeal.
56. Shri Mukul Gupta, learned senior counsel appearing for the
State has submitted that as the respondent had been the driver of the
vehicle which carried the contraband, i.e., arms, ammunition and
explosives and therefore, there was no reason for his acquittal by the
Designated Court.
57. Per contra, Ms. Farhana Shah, learned counsel appearing for the
respondent has submitted that there is nothing on record to show that
the respondent was driving the alleged vehicle on that particular day.
The registered owner of the vehicle was neither made an accused nor a
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witness in the case and no material had been placed on record to show
that on the fateful day the respondent was driving the vehicle. Thus, the
findings of the learned Designated Court do not require any
interference.
58. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
59. Confessional statement of Tulsi Ram Dhondu Surve (A-62):
He revealed that he was working as a Chowkidar at Wangni
Tower and came in contact with the smugglers and facilitated their
activities many a times for loading and unloading the contraband
smuggled by them. He (A-62) used to serve them tea and food. On
being asked by Dawood he (A-62) had agreed to help the smugglers in
loading and unloading at the said tower for consideration. On
9.1.1993 at 8 hrs. in the night one Maruti car entered the premises of
the tower and Sarfaraz (A-55), son of Dawood Phanse got down from
the Car and asked him (A-62) to prepare tea. He prepared tea and
served the same to 9-10 persons. Tiger Memon (AA) was also with
them. After having tea they went away and came back at 12 o’Clock
in the night with one truck and a tempo, a jeep and a Maruti car.
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Tiger Memon (AA) and his associates Iqbal, Anwar, Munna, Sharif
alighted from the vehicles and then the contraband was reloaded from
the truck to the tempo. Tiger Memon (AA) had given his men guns
and pistols in their hands and after reloading the contraband they all
went away. On 7.2.1993, he came to know through Sharif that
Dawood Phanse’s (A-14) contraband was about to come. The
accused (A-62) informed his other colleagues at about 9.30 in the
night. He came alongwith More from the tower and waited at the
Kuchha road for them. After sometime a truck, followed by three
jeeps, a rickshaw and two motorcycles came there. Subsequently, a
truck and a jeep carrying some goods also came to the tower. The
truck carrying the goods was owned by one Hasan Adhikari, r/o
Mhasla and was driven by Asfaq Kasam Hawaldar (A-38).
Alongwith the truck, Dawood Phanse (A-62), Dadamiya Parkar (A-
17), Sharif Adhikari, Abdul Gharatkar were there in a jeep. Tiger
Memon and his above-mentioned associates carrying guns and pistols
got down from another jeep. Sarfaraz Phanse (A-55), Khalil Nazir
and Sajjad Nazir kept the watch during this period. After transferring
the goods from one vehicle to another all vehicles left from there. The
wooden packings of the goods were burnt in the ditch near the tower.
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Page 40
60. Deposition of Vyankatesh Hirba (PW.588) stated that he made
the recovery of the truck used in the said offence.
61. The Designated Court has acquitted the respondent (A-38) of
the said charges only on the ground that the truck was owned by Hasan
Adhikari and the prosecution did not consider it proper to make Hasan
Adhikari as an accused or as a witness to find out as to whether the
respondent (A-38) had been a regular driver with him and as to whether
on that particular date he was on duty. No person had identified him as
he was driving the said vehicle on the said date. The confessional
statement of Tulsi Ram Dhondu Surve (A-62) was not corroborated by
any other witness/accused.
62. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
63. We find no cogent reason to interfere with the order passed by
the Designated Court and the appeal is accordingly dismissed.
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CRIMINAL APPEAL NO.394 OF 2011
State of Maharashtra …Appellant
Versus
Ismail Abbas Patel … Respondent
64. This appeal has been preferred against the final judgment and
order dated 2.8.2007 passed by the Special Judge of the Designated
Court under the TADA in Bombay Blast Case No.1 of 1993, acquitting
the respondent charged under Section 3(3) and Section 120B IPC and
other provisions.
65. Facts and circumstances giving rise to this appeal are that :
A. In addition to main charge of conspiracy, the respondent was
charged as he participated in the conspiratorial meeting at Dubai, and
made the arrangement and financed the trip for his co-accused Shaikh
Aziz to Dubai. Thus, he was charged under Section 3(3) TADA and
various provisions of IPC.
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B. The Designated Court after conclusion of the trial acquitted the
respondent of all the charges.
Hence, this appeal.
66. Shri Mukul Gupta, learned senior counsel appearing for the
State has submitted that there was ample evidence against the
respondent of his involvement in the aforesaid offence. However, the
learned Designated Court has wrongly acquitted him. Thus, the appeal
deserves to be allowed.
67. Per contra, learned counsel appearing for the respondent has
opposed the appeal contending that the findings of fact recorded by the
court below are based on evidence and by no means, the same can be
held to be perverse. Thus, no interference is called for.
68. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
69. Evidence against the respondent is his own confession recorded
under Section 15 TADA and the confessions of co-accused Ahmed
Shah Khan Durrani (A-20) and Aziz Ahmed Mohd. Ahmed Shaikh (A-
21).
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70. The confession of the respondent and other co-accused i.e. A-
20 and A-21 has been discarded by the Designated Court for the reason
that it had not been recorded strictly in accordance with the provisions
of Section 15 TADA and Rule 15 of TADA Rules, 1987. The
confessional statement of these accused had been recorded in two parts
and there had been some intervening period for re-consideration. While
recording the first part of the confession, the officer recording the
statement did not inform the accused that he was not bound to make the
confession and further that in case he makes it, it would be used against
him as evidence.
71. In the first part of the confessional statement of the respondent
as his particulars have been described and further stated that he was
giving his confession of his own accord. It was further recorded that
the accused had been given 48 hours to reconsider.
72. Even in the second part of the confession which was recorded
on 4.5.1993 the respondent had not been warned that he was not bound
to make the confession. Though he was asked as to whether he was
making the statement under any pressure and whether he was willing to
make the confession but even then he was not warned that he was not
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bound to make the statement. The certificate issued by the officer
regarding the confessional statement mentions the belief of the
recording officer that the statement was signed of his own will.
73. Exactly the same is the position so far as the confessional
statements of co-accused Ahmed Shah Khan Durrani (A-20) and Aziz
Ahmed Mohd. Ahmed Shaikh (A-21) are concerned.
74. The Designated Court has discarded the confessional
statements as the same was not in accordance with the said provisions.
We concur with the finding of the Designated Court in view of the law
laid down by this court in S.N. Dube (supra), where it was held that the
compliance of Section 15 and Rule 15 of TADA, 1987 is mandatory.
[Vide: Lal Singh (supra) and Bharatbhai (supra)].
75. As there is no admissible evidence on record connecting the
respondent (A-80) to the crime, he has rightly been acquitted by the
court below. Thus, no interference is required and the appeal is
accordingly dismissed.
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CRIMINAL APPEAL NO.1033 OF 2012
State of Maharashtra …Appellant
Versus
Rukhsana Mohd. Shafi Zariwala … Respondent
76. This appeal has been preferred against the final judgment and
order dated 2.8.2007, passed by the Special Judge of the Designated
Court under the TADA in the Bombay Blast Case No.1 of 1993,
acquitting the respondent of all the charges.
77. Facts and circumstances giving rise to this appeal are that :
In addition to the main charge of conspiracy, the case against
the respondent had been that she accompanied Ashrafur Rehman (A-71)
and helped in the transportation of bags containing 85 handgrenades,
350 electric detonators and 3270 live cartridges of AK-56 rifles from
Jogeshwari to Musafirkhana, Bombay. She thereby aided and
facilitated the distribution of fire arms, ammunition and explosives
which were smuggled into India by the co-accused for terrorist
activities.
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After conclusion of the trial, the Designated Court acquitted the
respondent of all the charges.
Hence, this appeal.
78. Shri Mukul Gupta, learned senior counsel appearing for the
appellant-State has submitted that the respondent had accompanied her
husband while carrying the arms, ammunition and explosives, and thus,
she was guilty of facilitating the distribution of arms, ammunition and
explosives etc. Hence, the Designated Court erred in acquitting her of
all the charges.
79. Ms. Farhana Shah, learned counsel appearing for the
respondent has submitted that the Designated Court has examined the
entire evidence and came to the conclusion that she had been
unnecessarily dragged in the trial. She was not involved anywhere and
merely being the wife of absconding accused, she had been forced to
face the trial. Considering the parameters laid down by this Court to
entertain the appeal against acquittal, the case is not worth for
interference. Thus, the appeal is liable to be dismissed.
80. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
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81. Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)
revealed about the incident of transportation of the contraband arms and
ammunition from Jogeshwari to Musafirkhana. He disclosed that he
was a close associate of Imtiyaz and Tiger Memon. He knew Shafi
Zariwala, the husband of the respondent who was working as driver of
Tiger Memon very well. He revealed his participation on various times
in landing and transportation. On 11.3.1993 at 12 noon he went to the
house of Tiger Memon. At that time Asgar was also present there.
Tiger Memon (AA) gave him two suit cases, two handbags (just like
neck hanging bags) and one big suit case and asked him to go to
Musafirkhana. He and Asgar took all the goods and kept the same in
room no.17 of Musafirkhana and their curiosity got the best of them and
they opened the bags and found that one bag contained AK-56 rifles
and the other bag contained some handgrenades and pen shaped pipes.
They closed the bag and went to Shafi’s house and from there went to
Mahim. After some time, Shafi also came by jeep and took him (A-12)
to his sister-in-law’s house at Jogeshwari. Shafi’s wife (respondent
herein) was also there. Shafi kept 2 AK-56 rifles and some
handgrenades in one bag and in the bag he kept some pistols there.
The accused (A-12), Shafi, his wife Rukhsana (respondent) and his
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sister-in-law all left for Mahim at about 8.30 P.M. Shafi dropped them
at Mahim and told them to go to Musafirkhana by a taxi and keep those
bags in room no.17 and after that came to Shafi’s house. He explained
that the goods had been kept at Musafirkhana on the instruction of
Tiger Memon (AA). He revealed that after the Bombay Blast on
12.3.1993 he had shifted the contraband from room nos.16 and 17 to the
lavatory and further how the recovery was made.
82. So far as the incident of transporting the goods from Jogeshwari
to Musafirkhana is concerned, Ashrafur Rehman Azimulla Shaikh (A-
71) revealed that he had booked two rooms i.e., Room Nos.16 and 17
on the first floor in Musafir Khana. On the intervening night of
11.3.1993 and 12.3.1993 at about 1.00 a.m. Tiger Memon (AA) called
him on telephone and asked him to reach Musafirkhana. Tiger Memon
met him there. There were three big suit cases and one small suit case,
two hand bags, three or four plastic bags containing cartridges, seven
machine guns and seven small pistols etc.
He has given some reference to this incident, however, his
statement was discarded by the Designated Court in view of the fact
that the officer who recorded his statement did not meet the statutory
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requirement of giving him the statutory warning that he was not bound
to make his confession and if made it would be used against him.
83. We have gone through his confessional statement. No such
requirement had been ensured and, thus, the same has rightly been
rejected by the court below.
84. The Special Judge acquitted the respondent on the grounds:
“(a) That there is no corroborative material available to support the contents of the confession of A-12 Parvez Nazir Ahmed Shaikh and further no recovery has been affected from room No. 17 of the Musafirkhana.
(b) That the confession made by A-71 Ashrafur Rehman in support of A-12 Parvez Nazir Ahmed Shaikh's confession is inadmissible because it was not recorded by the Deputy Commissioner of police (hereinafter referred to as DCP) by following the statutory procedure and that A-71 Ashrafur Rehman was not given the requisite warning that he was not bound to make confession. Further, the requisite certificate/memorandum as prescribed in Rule 15 (3) of TADA(P) Rules, was also not recorded”.
85. The parameters laid by this Court in entertaining the appeal
against the order of acquittal have to be applied.
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86. The only allegation against the respondent had been that she
had accompanied her hushand (AA) while he carried the arms,
ammunition and explosives. Further, there is nothing on record to
show that she had any knowledge of such arms, and the purpose for
which the same had been brought. Further, the sister-in-law of the
respondent was neither made the accused nor a witness. Her husband
is still absconding. In such a fact-situation, the findings recorded by
the learned Designated Court do not warrant any interference. The
appeal lacks merit, and is accordingly dismissed.
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CRIMINAL APPEAL NO. 594 OF 2011
The State of Maharashtra …Appellant
Versus
Sayyed Ismail Sayyed Ali Kadri … Respondent
87. This appeal has been preferred against the impugned judgment
and order dated 2.8.2007 passed by the Special Judge of the
Designated Court under the TADA for Bombay Blast, Greater
Bombay, in Bombay Blast Case No. 1/1993, acquitting the respondent
(A-105) of all the charges.
88. Facts and circumstances giving rise to this appeal are that :
In addition to the main charge of conspiracy, the respondent
was also charged for having abetted and knowingly and intentionally
facilitating the commission of terrorist acts in effecting the landing of
contraband goods such as arms, ammunition and explosives at Dighi
Jetty on 9.1.1993. He was further charged for concealing contraband at
his house and also in the mango grove of Abdul Razak Subedar and
further for his involvement in disposal of the said articles at Kandal
Gaon Creek.
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89. The Special Judge after conclusion of the trial, acquitted the
respondent of all the charges.
Hence, this appeal.
90. Mr. Mukul Gupta, learned senior counsel appearing for the
appellant has submitted that the respondent being father of Shabir
Sayyed Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri (A-133)
(dead after being convicted by the Special Judge) was a party to
conspiracy and of the plan of committing terrorist acts and was fully
aware as the contraband had been concealed in his house with his
consent and connivance. He had also participated when the contraband
arms and ammunition were shifted from his house to mango grove of
Abdul Razak Subedar and concealed there by digging the earth. He
was involved in disposal of the said articles in the creek. The Special
Judge has wrongly given the benefit of doubt to him. Thus, the appeal
deserves to be allowed.
91. On the contrary, Ms. Farhana Shah, learned counsel appearing
for the respondent has submitted that even if his sons Shabir Sayyed
Ismail Kadri (AA) and Jamir Sayyed Ismail Kadri (A-133) had been
involved in the offence, there is nothing on record on the basis of
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which it could be held that the respondent had committed any offence.
More so, he had been in jail for 2 ½ years during the trial. He is 70
years of age, old and bed ridden person. The incident occurred 20
years ago, so it is not a case warranting interference against the order
of acquittal.
92. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
Respondent accused (A-105) did not make any confession.
Confession of Faki Ali Faki Ahmed Subedar (A-74) :
93. The confessional statement of Faki Ali Faki Ahmed Subedar
(A-74) revealed that Shabir had approached him in the 2nd/3rd week of
March, 1993 for help as Feroz Khan had come from Bombay and told
him that after the riots the situation was very bad in Bombay and some
boxes containing fire arms and bags containing cartridges were to be
dumped in the creek. He asked for help taking the said articles in the
boat. The acccused (A-74) agreed. Shabir, his brother Jamir (A-133,
since dead), Abdulla Surti and Gambas (A-81) took out three wooden
boxes and 6 green coloured bags kept under the straw and loaded them
in a boat lying near the shore of the creek and went in the water
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towards Kandalwada creek. The next day, Shabir came and told him
that certain arms, ammunition and cartridges were to be hidden in the
mango grove and he wanted the said accused to help him. The
accused went along with him. At that time, Gambas, Abdulla Surti,
Jamir and Jamir’s father were there in his house. After reaching there,
they took out 13 coloured bags containing cartridges and guns wrapped
in plastic paper and kept there in three bundles from underneath the
straw. These articles were put in the pit prepared earlier in the mango
orchard of Abdulla Razak Subedar who was living in Nairobi at the
time and the pit was covered with soil.
After about a month, he was interrogated by the police, wherein
he disclosed about the said 13 green coloured bags containing
cartridges and three bundles containing guns had been hidden in the
mango orchard of Abdul Razak Subedar. The hidden material was
recovered from the said mango grove and it contained 4 country made
guns, 12 foreign made guns, 36 magazines and 26 cartridges.
Confession of Jananrdan Pandurang Gambas (A-81):
94. He disclosed that he was not able to maintain a good business
so some smugglers persuaded him to purchase one new boat and
indulge in transportation of smuggled goods particularly silver and
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gold through the sea. Shabir used to give him Rs.1000/- for such
activities. On 2.12.1993, he was asked by Shabir Kadri to come to the
Jetty at around 9.00 p.m., for unloading silver and gold. So he
participated in the said landing and brought the goods to the sea shore
with the help of Mohd. Chacha (A-136) and Uttam Potdar (A-30) and
for that many persons had helped and Uttam Potdar (A-30) gave Rs.
5,000/- to each and every person for their assistance. After the
Bombay Blast, one day Jamir (A-133, since dead) and his brother
Shabir called him (A-81) at Agarwada and he was told that goods
unloaded on the last occasion contained guns and explosive substances
i.e. “gola barood” and had to be hidden beneath the ground and he was
directed to remain present in the mango grove after dinner and dig the
pit for hiding the contraband. Accordingly, a pit was prepared and
three boxes each containing 4 rifles wrapped in gunny bags and 26
boxes of thermal packing were buried in the ground. He was paid
Rs.1,000/- for that job. Shabir threatened him not to disclose the fact to
anyone. When these articles were buried, Shabir Jamir, Faki Ali Faki
Chacha, Abdulla Surti, Sayyed Ismail Kadri, father of Shabir were
also present.
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95. The recovery of the said material had been made at the instance
of Faki Ali Faki Chacha (A-74) from the mango grove.
96. After appreciating the aforesaid evidence the Special Judge
came to the conclusion that the respondent (A-105) had not made any
confession. So far as the confession of Faki Ali Faki Chacha (A-74) is
concerned, it contained reference regarding the presence of one father,
but the same does not specifically reveal A-105 being person while the
goods were being concealed after taking them from the house of the
respondent-accused to the mango grove. The same conclusion was
drawn regarding the confession of Jananrdan Pandurang Gambas (A-
81). He (A-81) made a passing remark revealing the presence of
respondent A-105 at the relevant time. Still the same specifically failed
to depict any act committed by him in relation with the contraband
goods. More so, there seems to be some contradiction and variance in
the sequence of events as given in the aforesaid confessions. Thus, it
was difficult to accept that the said material in confession of the co-
accused can be accepted without there being any independent
corroboration, though the corroboration was required only on material
points and not on each and every point. The confessional statement of
the aforesaid accused particularly Faki Ali Faki Chacha (A-74) and
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Jananrdan Pandurang Gambas (A-81) cannot be said to be cogent
enough for establishing involvement of the respondent (A-105) in
commission of the acts amounting to a criminal offence required to be
strictly proved.
97. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
98. In the instant case, there is no
evidence on record to show that the respondent had been involved in
the crime in any manner. If his sons had indulged in the offence, his
mere presence in his house, where the contraband had been hidden,
would not make the respondent responsible.
We do not find any cogent reason to interfere with the impugned
judgment and order. The appeal lacks merit and is accordingly
dismissed.
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CRIMINAL APPEAL NO. 402 of 2011
State of Maharashtra ….Appellant
Versus
Mohd. Ahmed Mansoor … Respondent
99. This appeal has been preferred against the judgment and order
dated 2.8.2007, passed by the Special Judge of the Designated Court
under the TADA in the Bombay Blast Case No. 1 of 1993. The
respondent has been acquitted of all the charges.
100. In addition to the general charge of conspiracy, the respondent
was charged under Section 3(3) TADA.
101. After conclusion of the trial, the Designated Court acquitted the
respondent of all the charges.
Hence, this appeal.
102. Shri Mukul Gupta, learned senior counsel appearing for the
State argued that the respondent received the co-accused at Dubai and
facilitated their stay at Dubai and further facilitated their transit to
Pakistan where they took training for handling of arms and
ammunition etc. When co-accused came back from Pakistan through
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Dubai, their transit and stay was again facilitated by him. Therefore,
his acquittal of all the charges deserves reversal.
103. Ms. Farhana Shah, learned counsel appearing for the
respondent has submitted that there is no iota of evidence showing
involvement of the respondent in any overt act or conspiracy. The
well reasoned judgment of the Designated Court does not warrant
interference by this court.
104. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
The respondent did not make any confessional statement.
Evidence against the respondent :
Confessional statement of Mohd. Hanif Mohd Usman Shaikh (A-92):
105. The accused (A-92) revealed that he got a passport in the year
1987 and visited Dubai and other gulf countries several times prior to
Bombay Blast. During the riots in Bombay in December, 1992 and
January, 1993, he was working as the driver of Salim Kurla. Salim
Kurla asked A-92 to go to Dubai. A-92 agreed and he was paid Rs.
1000/- in cash and Salim Kurla agreed to arrange his ticket etc. Ticket
of A-92 to Dubai was arranged by Salim Kurla as was done by him
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for Sayeed, Usman and Ibrahim. All of them reached Dubai. There
two persons named Ahmed and Farooq were waiting for them outside
the airport. From there, A-92 and other accused were taken to Delhi
Darbar Hotel in two cars. On the next day, Ahmed and Farooq came
to the hotel and told them that they would go to Pakistan for work.
They were also given some money. After 4 days, Salim, Ahmed and
Farooq came to the hotel. Salim told them that their air tickets for
going to Pakistan were ready. Thereafter, Salim and Ahmed called
them and stated that great injustice had been done to the Muslim
community in Bombay riots in December 1992 and January 1993.
Thus, in order to ensure that it was not repeated, they should be
given training of handling of arms/guns and ammunition. They
should be ready to go to Pakistan the next day. Salim, Ahmed and
Farooq left the hotel. Next day Ahmed and Farooq came to the hotel
and delivered their tickets and passports. After some time, Salim also
came. The accused (A-92) went with Usman, Ahmed and alongwith
others to Dubai airport. On the way, Ahmed gave one yellow
coloured cap to Usman (PW.2) and told him to wear the same after
reaching Pakistan so that the person who was coming to receive them,
would be able to identify them. In Pakistan, they were received at the
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airport by one Altaf and taken to the training camp in a jungle.
During their training, a person named Ahmed came there and
enquired about training. After completion of the training, two pathans
took them to unknown bungalow in a jeep. Thereafter, they came to
Karachi and then Dubai and stayed in Delhi Darbar Hotel.
Confessional Statement of Shaikh Ibrahim Shaikh Hussain Shaink (A-108):
106. He revealed that he was well acquainted with one Ismail and
after the riots in Bombay in December 1992 and January 1993, he
suffered a loss in business and used to stay at home. On 16.1.1993,
Ismail came to his house and asked him if he had a passport and
whether he was willing to go to Dubai. Accused (A-108) told Ismail
that he had no money. Ismail told him not to worry about money, he
would make the necessary payments. So, he got ready to go to Dubai.
A-108 left for Dubai alongwith co-accused and reached Dubai where
two persons named Ahmed and Farooq (whose names were disclosed
by Salim) were waiting outside the airport. Ahmed told them next
day that they had to go to Pakistan for work and Ahmed gave them
each 200 Dinars for their expenses. Ahmed and Farooq had been
meeting them and facilitated their stay and subsequent transit to
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Pakistan. Ahmed gave one yellow coloured cap to Usman (PW.2)
and told him to wear it in Pakistan so that they would be identified by
the person who would come to receive them at the airport. After
reaching Pakistan, Usman (PW.2) wore Yellow coloured cap. One
person came to receive them, Usman (PW.2) told him that Ahmed
and Farooq had sent them from Dubai. They were taken outside the
airport and taken to training camp in a jungle. He (A-108) got injured
during the training so he was taken to hospital at Islamabad for
treatment. He stayed in the hospital for six days. He was brought to
Karachi airport from Islamabad by air by one Yusuf and one unknown
person and then he reached Dubai. Yusuf took him to the house of
Anees Bhai. Ahmed was also present there. The next day the servant
of Ahmed took him to Delhi Darbar Hotel where he met other
persons. From there, they came back to Bombay.
Confessional statement of Usman Man khan Shaikh (A-115):
107. He revealed like other co-accused that he had also gone to
Dubai and two persons named Ahmed and Farooq were already
waiting for them outside the airport. They had facilitated their stay in
Dubai and transit to Pakistan. All arrangements were made by them.
When the accused came back after having training in Pakistan
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Ahmed had given him 200 Dinars for expenses. A-115 revealed that
the said accused persons got training in Pakistan. During their
training, Ahmed came and enquired about their training. After
completion of their training, they came back to Dubai and went to
Delhi Darbar Hotel and then on 15.2.1993, Ahmed and Yusuf took
them to Dubai Airport and then arrived at Bombay.
108. In his statement, Usman Ahmed Jan Khan (PW-2) made
reference to Ahmed without giving his full name and address or any
other particular, which may be a decisive factor to determine as to
whether the respondent was the real person to whom the witness had
been talking about.
109. The Special Judge has given benefit of doubt to the respondent
(A-132) reaching the conclusion that the prosecution failed to disclose
the correct identity of the accused. None of the witness/accused had
referred to his full name or address even once. In such a fact-
situation, the Special Judge has rightly given him the benefit of doubt.
110. In the facts and circumstances of the case, as the prosecution
failed to fix the identity of the accused who had gone to Pakistan for
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training, we are of the opinion that the respondent has rightly been
given the benefit of doubt.
111. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
112. The appeal lacks merit, and the judgment and order of acquittal
does not deserve interference. The appeal is dismissed accordingly.
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CRIMINAL APPEAL NO. 1022 OF 2012
State of Maharashtra …Appellant
Versus
Rashid Umar Alwar …Respondent
113. This criminal appeal has been preferred against the impugned
judgment and order dated 2.8.2007, passed by the Special Judge of the
Designated Court under the TADA in the Bombay Blast Case No.
1/93, by which the respondent had been convicted under Section 111
read with Section 135 of the Customs Act, 1962, and awarded the
sentence of 3 years alongwith a fine of Rs.25,000/-. However, he had
been acquitted of the general charge of conspiracy and second charge
under Section 3(3) TADA.
114. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the respondent (A-
27) was also charged for participating in the landing and
transportation of the arms, ammunition and explosives, using his
motor truck bearing registration No. MWT-6683, on 3.2.1993 from
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Shekhadi to Wangni Tower. About 59 bags of RDX explosives were
taken by him in his truck alongwith other co-accused to the field of
Tulsi Ram Dhondu Surve where it was buried and concealed.
B. After holding the trial, the respondent had been acquitted of the
charge of conspiracy, however, he has been convicted for the other
charges as mentioned hereinabove.
Hence, this appeal.
115. Shri Mukul Gupta, learned senior counsel appearing for the
appellant has submitted that there was sufficient evidence against the
respondent (A-27), so far as the participation and transportation of the
explosives used in the offences is concerned. Therefore, the acquittal
under Section 3(3) TADA and of the charge of general conspiracy is
unwarranted. The evidence on record makes it evident that he had
knowledge that contrabands were not silver but arms and ammunition.
Therefore, the appeal deserves to be allowed and the respondent (A-
27) should be convicted for the offences punishable under the
aforesaid provisions.
116. Shri Mushtaq Ahmad, learned counsel appearing for the
respondent (A-27) has submitted that after appreciating the evidence
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on record, the Designated Court reached the conclusion after that even
if the respondent (A-27) had participated in landing and transportation
of contraband, he had no knowledge about its contents. In absence of
any knowledge that the contraband contained arms and ammunition,
conviction under the provisions of TADA is not permissible. The
respondent (A-27) has already served 3 years imprisonment, and paid
a fine of Rs.25,000/-. Thus, no further consideration of the appeal is
required. Therefore, the appeal is liable to be dismissed.
117. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
Evidence against him:
Confession of the Respondent Rashid Umar Alware (A-27):
118. In his own confession, Rashid Umar Alware (A-27) has
admitted that he owned a truck bearing registration No.MWT-6683
and he drove himself. In the first week of February, 1993 he had
participated in the landing and transportation of silver at the behest of
other co-accused by driving his truck to Shekhadi village and
bringing the contraband. He disclosed that his truck was loaded with
contraband and when the truck was moving it was followed by a jeep
and they reached Wangni Tower. There two persons took him aside
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and was asked to wait at one place. After unloading some of the
goods he drove the truck away from the Tower. The remaining goods
were unloaded and the same was kept in one pit in the land. At that
time he was kept at a distance from where unloading of the goods
could not be seen. He was paid a sum of Rs.20,000/- for
transportation etc.
Confession of Dawood @Dawood Takllya Mohammed Phanse @ Phanasmiyan (A-14):
119. He disclosed that he was a very close associate of Tiger Memon
(AA) and used to participate in landing and transportation of
smuggled goods/contraband. In the first week of February, 1993, five-
seven persons with him had gone for landing at Shekhadi. As per the
pre-arrangement, Rashid Umar Alware (A-27) was called from Borli
with his truck and 35-40 persons were arranged for loading and
unloading the goods. The goods were brought from the trawlers to the
shore by Tiger Memon (AA) and other persons armed with guns and
were loaded in the truck.
Confession of Muzamil Umar Kadri (A-25):
120. He (A-25) disclosed that he reached Borli village on 3.2.1993
and asked Rashid Umar Alware (A-27) to accompany him with his
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truck. He came driving his truck at the place of landing. Other
accused persons were there. They reached Shekhadi and the goods
were loaded in the truck.
Confession of Sajjad Alam @ Iqbal Abdul Hakim Nazir (A-61):
121. He corroborated the version given by other co-accused that on
3.2.1993 the landing took place and the contraband was transported by
the truck of the respondent (A-27).
He also disclosed that most of the persons were not
permitted to see when the loading and unloading took place at
Wangni Tower.
Confession of Tulsi Ram Dhondu Surve (A-62):
122. He (A-62) has corroborated the version given by other co-
accused disclosing that the said truck used for transportation
belonged to Rashid Umar Alware (A-27) from Borli and he himself
was driving the truck. The goods brought in the Wangni Tower
contained guns and pistols. The work of loading of the goods from
the truck in a jeep and tempo started after bringing the same by truck
from Shekhadi. Out of the aforesaid goods 59 bags remained. The said
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bags were taken by the truck of the respondent (A-27) in the field and
were unloaded on the steps of the house with the help of the labourers
on the field and the same were covered with the soil. When he asked
Dawood whether those were the silver bricks, he was told that it was
“Kala Sabun”. Tiger Memon (AA) intimidated him and warned not to
tell to anyone about the same. Tiger Memon took one bundle from the
said bundles and saw the same and ascertained as to whether the
goods therein were proper or not and threw the plastic bag at that
place and packed the same in another bundle and took the same with
him. It was learnt later that one truck had arrived on 4.2.1993 in the
evening and carried away the remaining 59 bags.
123. The Designated Court after appreciating the entire evidence on
record came to the following conclusion:
“Now with regard to submission canvassed on behalf of A-27 and after carefully considering the material in his confession and the same having shown the manner in which he had acted in episode it is crystal clear that he was full aware that he was involved in an illegal operation. Having regard to same and so also having regard to the amount received by him it will be difficult to perceive that he was not aware that he was effecting any illegal operation. Now considering the acts committed by him clearly denotes of himself having transported the goods brought into the country at a p lace which was not a port and all the facts regarding the said operation the
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same are sufficient to denote of the same being a smuggling operation. However, there being no express evidence of A-27 having seen the nature of goods transported and the evidence having indicated that he cannot be said to be a person present at Wangni tower when the exchange of material from vehicles to another vehicle was effected for concealing the same in cavity and the person from Bombay being only present along with Tiger Memon and A-14 & A-17 his liability would be restricted for commission of offences under Customs Act he would be required to be held guilty only for commission of offence under Section 111 r/w Section 135(b) of Customs Act and would be required to be held not guilty for commission of other offences including that of conspiracy in view of his acts being not of a nature for coming to the conclusion of the same being for furthering the object of conspiracy of or involvement of A-27 in the same.”
(Emphasis added)
124. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
125. There is no evidence on record to show that the respondent had
any knowledge about the nature of the articles smuggled in India. In
view thereof, we do not find any cogent reason to interfere with the
well-reasoned judgment of the Designated Court. The appeal lacks
merit, and is accordingly, dismissed.
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CRIMINAL APPEAL NO. 393 OF 2011
The State of Maharashtra …Appellant
Versus
Sharif Khan Abbas Adhikari …Respondent
126. This criminal appeal has been preferred against the impugned
judgment and order dated 2.8.2007 passed by the Special Judge of the
Designated Court under the TADA in the Bombay Blast Case No.
1/93, by which the respondent had been convicted under Section 111
read with Section 135 of the Customs Act, 1962, and awarded the
sentence of 3 years, alongwith a fine of Rs.25,000/-, and in default of
payment of fine, to suffer further RI for a period of 6 months.
However, he had been acquitted of the charge of conspiracy and
charge under Section 3(3) TADA.
127. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the respondent
was also charged for participating in the landing and transportation of
the arms, ammunition and explosives at Shekhadi, Dist. Raigad, for
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committing terrorist acts and also by shifting the said contrabands
from motor truck bearing registration No. MWT-6683 on 3.2.1993
into tempos and motor jeeps at Wangni Micro Tower Mhasla.
B. After holding the trial, the respondent has been acquitted of the
aforesaid charges, however, convicted for the other charges as
mentioned hereinabove.
Hence, this appeal.
128. Shri Mukul Gupta, learned senior counsel appearing for the
appellant has submitted that there is sufficient evidence against the
respondent so far as his participation in landing and transportation of
the arms, ammunition, explosives etc. Therefore, the acquittal under
Section 3(3) TADA, and of the charge of conspiracy is unwarranted.
The evidence on record makes it evident that he had knowledge that
contraband were not silver, but arms and ammunition. Therefore,
appeal deserves to be allowed, and the respondent should be convicted
for the aforesaid offences.
129. Ms. Farhana Shah, learned counsel appearing for the
respondent has submitted that after appreciating the evidence on
record, the Designated Court reached the conclusion that even if the
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respondent had participated in landing and transportation of
contraband, he had no knowledge about the nature of those articles.
In the absence of any knowledge that those smuggled goods contained
arms and ammunition, conviction under the provisions of TADA is
not permissible. The respondent had already served 3 years
imprisonment and paid a fine of Rs.25,000/-. Thus, no further
consideration of the appeal is required. Thus, the appeal is liable to be
dismissed.
130. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
Evidence against the respondent:
Confession of Khalil Ahmed Sayed Ali Nasir (A-42):
131. He disclosed about the incident of landing and transportation on
3.2.1993 that the goods were brought by the truck by Rashid Umar
Alware (A-27) who was driving the truck himself. In the said truck
other persons namely Abdul Salam Hishamuddin Nazir, Bashir Fakji,
Sharif Khan Abbas Adhikari (A-60), Muzammil Umar Kadri and
Azimbhai Pardesi were sitting.
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Confession of Tulsi Ram Dhondu Surve (A-62):
132. He was the employee at the Wangni Tower. He disclosed that
he knew respondent Sharif Khan Abbas Adhikari (A-60), resident of
Mhasla and he was the person who brought Dawood @ Dawood
Taklya Mohammed Phanse (A-14) to him 1 ½ years ago. They had
persuaded him (A-62) to help in loading and unloading the smuggled
silver and other goods in the tower for a handsome consideration. So
far as the relevant incident is concerned, he disclosed that some of the
persons including Sharif Khan Abbas Adhikari (A-60) came there
with contraband at about midnight and thereafter the goods were
loaded in the tempo from the truck. They paid Rs.1,000/- each to the
said accused, Harishchandra Surve (PW-108), and Vijay Govind More
(PW-137), the other employees at the Wangni Tower. He had been
informed by Sharif Khan Abbas Adhikari (A-60) regarding the
landing and bringing the goods by Dawood Phanse (A-14) and that is
why the accused made all the arrangements.
Deposition of Harish Chandra Surve (PW-108):
133. He corroborated the version given by Tulsi Ram Dhondu Surve
(A-62) and regarding the said incident he disclosed that he knew all
the co-accused/conspirators. The truck loaded with silver bricks came
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there and the bricks were shifted in the tempo and jeep. Thereafter all
the vehicles left the tower. The deal was arranged by Tulsi Ram
Dhondu Surve (A-62) on consideration fixed by Dawood Phanse (A-
14). The truck of Rashid Umar Alware (A-27) was carrying silver
bricks and wooden boxes of square shape. Silver bricks were wrapped
in a gunny cloth. Persons in Maruti car were having small size guns.
He had not seen the weapons with the persons who had accompanied
the jeep and tempo. He further identified Sharif Khan Abbas Adhikari
(A-60) in court to be the person who was in the jeep.
Deposition of Vijay Govind More (PW-137):
134. In respect of the incident dated 3.2.1993, he deposed that Tiger
Memon (AA), Dawood Phanse (A-14), Sharif Khan Abbas Adhikari
(A-60), Abdul Gharatkar, Dadamiya Parkar (A-17), Sarfaraz Phanse
(A-55) were amongst the said persons. He further deposed that
Dawood Phanse (A-14), Sharif Khan Abbas Adhikari (A-60) and
others were the occupants of one of the jeep and he also identified
Sharif Khan Abbas Adhikari (A-60) in court.
135. The Designated court after appreciating the entire evidence on
record came to the following conclusion:
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“Now carefully considering relevant material from confession of A-42 and A-62 about which excerpts are recited hereinabove it must be said that though same reveals involvement of A-60 in relevant landing operation still close look at the same and so also other evidence does not reveal any material indicating that A-60 was aware of nature of material which were smuggled during said operation. The same is obvious as hardly there is any material revealing that A-60 was present alongwith Tiger Memon when packets of goods were opened by Tiger Memon on coast. Similarly, evidence is contrary regarding presence of A-60 at Wangni Tower when goods were exchanged. Having regard to same it will be extremely difficult to hold A-60 guilty for offence under Section 3(3) TADA.”
Having regard to fact that prosecution evidence about which detail dilation is made while recording the reasoning regarding the conclusion arrived about guilt of aforesaid accused and the same amongst other having denoted that A-33 and A-56 were owners of the boat which was used in contraband operation, both of them being involved twice in such operation, and even prior to same themselves and so also A-19 being engaged in such activities, the quantity of goods which was transported by A-19 being 48 cartons i.e. approximately 960 Kg. allegedly being silver as told to them, confession of A-14 revealing amount of Rs.24,000/- being paid to boatmen, A-27 having received an amount of Rs.20,000/- for transportation effected by him. A-60 also being involved twice in transportation operation as disclosed from the confession of A-62 and A-42 and even prior to same himself being involved in smuggling operations are the factors for not accepting submissions advanced for showing leniency on the count of financial condition etc. Needless to add that in the event of crimes being committed for earning handsome profits then hardly there would be any scope to show
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leniency on said count as the same will have an effect of causing erroneous impression of culprits being permitted to acquire the profits by commission of crimes. Needless to add that the same would warrant of levying a sentence of an appropriate amount of fine in addition to the sentence of rigorous imprisonment.” (Emphasis added)
136. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
137. There is no evidence on record to show that the respondent had
any knowledge about the nature of the articles smuggled in India. In
view thereof, we agree with the reasoning given by the Special Judge.
No interference is warranted on the facts of the case. The appeal is
accordingly dismissed.
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CRIMINAL APPEAL NO. 391 OF 2011
State of Maharashtra …Appellant
Versus
Sharif Abdul Gafoor Parkar @ Dadabhai …Respondent
138. This criminal appeal has been preferred against the impugned
judgment and order dated 2.8.2007, passed by the Special Judge of
the Designated Court under the TADA in the Bombay Blast Case No.
1/93, by which the respondent (A-17) stood convicted under Section
3(3) TADA, and was awarded punishment of 7 years RI and a fine of
Rs.50,000/- and in default of payment of fine, to suffer suitable RI,
under Section 5 TADA, he was awarded 10 years RI and a fine of
Rs.50,000/-, and in default of payment of fine, further R.I. for one
year; and under Section 6 TADA, was awarded 14 years RI, and a fine
of Rs.2 lakhs, and in default, to suffer further R.I. for 3 years. All the
sentences were directed to run concurrently.
As the respondent (A-17) has been acquitted of the charge of
conspiracy, the present appeal has been filed by the State.
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139. Shri Mukul Gupta, learned senior counsel appearing for the
appellant has submitted, that there is ample evidence on record to
show that respondent (A-17) was a close associate of Tiger Memon
(AA) and was a party throughout in hatching the conspiracy and,
therefore, has wrongly been acquitted for the said charge. In the
statement of the respondent (A-17) under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as Cr.PC.), before
the learned Designated Court, he himself admitted that he was fully
aware of the contraband and knew that the same was going to be used
against Hindus for taking revenge. Therefore, the appeal deserves to
be allowed.
140. Shri Sushil Karanjakar, learned counsel appearing for the
respondent (A-17) has submitted that the respondent has already
served the sentence of 14 years awarded by the Designated Court and
paid the fine and did not file any appeal against his conviction. In
spite of the fact that the respondent (A-17) was fully aware that the
arms, ammunition and explosives that had been smuggled into India
by Tiger Memon (AA) would be used for terrorist activities, he was
unable to give any other person this information as he had been
threatened with dire consequences. Thus, the respondent (A-17) acted
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under threat and coercion. It was further submitted that the
confessions of the co-accused used by the learned Designated Court to
convict the respondent (A-17) were made prior to the date of the
amendment i.e. 22.5.1993 except the confession of Nasir Dhakla (A-
64). However, the statement of Nasir Dhakla (A-64) cannot be relied
upon as there was no corroboration of the same.
Therefore, at such a belated stage there is no reason to entertain
the appeal and convict the said respondent for conspiracy, as he had
already suffered enough. Therefore, the appeal is liable to be
dismissed.
141. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
Evidence against the respondent (A-17):
Confessional statement of Dadabhai Parkar (A-17):
142. He disclosed that he was a very close associate of Tiger
Memon (AA) and used to participate in smuggling activities. He had
been called by Tiger Memon (AA) many times for landing etc. So far
as the landing on 3.2.1993 is concerned, he disclosed that on
instructions of Tiger Memon he contacted R.K. Singh (A-102), the
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Customs Officer and told him that he was an informant and asked him
to come to hotel Big Splash. He (A-102) expressed his inability to
come to the hotel Big Splash but assured that his Superintendent,
Sayyed (A-90) would come. The accused (A-17) and Tiger Memon
(AA) had some discussion with Sayyed (A-90) and Tiger Memon had
told him about his programme of landing of smuggled goods. On
3.2.1993, he (A-17) left with co-accused and participated in the
landing and brought the smuggled goods. There was some material in
the jeep and cardboard boxes which were covered with gunny cloth.
Inside the boxes there was packing of plastic and inside, in some
boxes hand bombs, wire, rifles and pistols and cartridges were there.
Tiger Memon (AA) had been checking those goods and preparing a
list. Baba, Anwar, Shafi and others were keeping the arms and
ammunition etc. in the cavities of jeep and tempo. Among the goods
that were landed there, a chemical by name black soap was also there.
As there was insufficient space in the tempo, Tiger Memon (AA)
instructed his man to bury 59 bags in the land opposite the tower. The
cardboard boxes and empties were handed over to some persons and
they destroyed the same by burning them. As to the packages of
“black soap” which had been torn, Tiger Memon gave them to him
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(A-17) and instructed him (A-17) that he had to be careful while
burning them as they may explode. He burnt the same and at that
time heard the noise of explosion which was very mild. The work was
complete by 5.00 a.m. and they left for Bombay.
Again on 9.2.1993 there was another landing and Tiger Memon
(AA), Javed, Yakub, Anwar, Shafi, Imtiyaz, Parvez, Mohd. Hussain
etc. all proceeded to Wangni Tower. At that time there were 2
tempos, 4 jeeps and one Maruti car. They went to Coastal side at
Shekhadi and after receiving the contraband from the trawler they
loaded the same in a truck and came to the tower. Two boxes from
the tempo were taken out and broken and the goods like pistols,
weapons were adjusted in the cavities of the jeep and the empty
boxes were burnt.
It was on 19.2.1993 that he was paid a sum of Rs.5 lakhs by
Asgar Mukadam @ Munna. He also received Rs.9 lakhs from Shafi
and one lakh from Gani. So, in total he received Rs.15 lakhs and after
deducting all the expenses, the three partners received Rs.70/75
thousand each. Out of the said 15 lakhs, he had paid to Customs
Office, Shrivardhan; Customs Office, Murud; Customs Office
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Adgaon; Mhasla Police Station, Shrivardhan Police Station, Borli Out
post, Trawler owners, trucks and to Hamals.
Confession of Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan A-14:
143. The said accused (A-14) disclosed that he had been doing the
work of landing of smuggled goods of various smugglers in
partnership with Sharif Abdul Gafoor Parkar @ Dadabhai (A-17),
resident of village Sandheri and Rahim Abbas Karbalekar @ Rahim
Laundriwala of village Shrivardhan for last 5-6 years. He (A-14) had
been attending the landing of silver for last 2 years for Tiger Memon
(AA). He disclosed that he had visited Dubai at the instance of Tiger
Memon and met Dawood Ibrahim Kaskar. He did not know Dadabhai
(A-17), however, he could identify him as he had seen his photograph
in the newspaper several times. Dadabhai (A-17) asked him (A-14) as
to whether he was interested to work for him and he (A-14) said that
he had stopped the work of silver smuggling. He would transport
chemicals/explosives and arms consignments. After pressing his teeth
Dawood Ibrahim told him (A-14) that Babri Masjid had been put to
martyrdom and they have to take revenge and then asked how much it
would cost. Then Tiger Memon (AA) told him that it would cost
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about 9-10 lakhs. Tiger Memon (AA) asked him (A-14) to make the
arrangements fully.
So far as the incident dated 3.2.1993 is concerned, he (A-14)
disclosed that Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) called
Rahim Laundriwala and said that landing had to take place that
evening and asked him to make all arrangements and to talk with
Customs officers. He (A-17) disclosed about the landing and bringing
the smuggled goods by the trucks. He (A-17) came with Tiger Memon
(AA) in his jeep and reached the tower where Sharif Abdul Gafoor
Parkar @ Dadabhai (A-17) and Tiger’s men were already present.
Tiger’s men unloaded the goods from the truck. The boxes contained
Rifles, pistols, ammunition, wire, handgrenades, and something
looking like black soap. Out of the said boxes, Tiger Memon found
something like white pencil and showed it to Sharif Abdul Gafoor
Parkar @ Dadabhai (A-17) and told him (A-17) that it could blow up
Oberoi Hotel. He (A-14) further disclosed that he (A-17) had loaded
the boxes in the truck of Rashid, there were 59 items and he (A-17)
asked Rashid to unload them at the spot which had been dug up for
this purpose. Two-three days thereafter, Sharif Abdul Gafoor Parkar
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@ Dadabhai (A-17) told him (A-14) that the black soap had been
loaded by him and other persons in the tempo.
Confessional statement of Asgar Yusuf Mugadam (A-10):
144. He (A-10) disclosed that he (A-17) was very close associate of
Tiger Memon (AA) and had participated in the smuggling activities
etc. and was involved in landing and transportation of silver, arms and
ammunition with Tiger Memon (AA). So far as the present
respondent (A-17) is concerned, he deposed that Tiger Memon (AA)
had told the accused (A-10) that Fifteen Lakh rupees are to be given
to Dadabhai (A-17) for landing. The accused (A-10) and Parvez took
Rs. 5 lakhs from Chokshi and gave it to Dadabhai (A-17) after going
to his residence in Juhu.
Confession of Abdul Gani Ismial Turk (A-11):
145. So far as the present respondent (A-17) is concerned, he stated
that he was a close associate of Tiger Memon (AA) who was dealing
with the smuggling of gold and silver. He used to go to Mhasla in
District Raigad, intermittently. In the first week of September, 1992,
he went alongwith Tiger Memon (AA) and others to Mhasla by jeep
and Maruti car. On the way, they met Dadabhai (A-17) also. He was
indulging in landing and transportation and the respondent (A-17)
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alongwith 40-50 persons. On about 3rd February, 1993, he disclosed
that at about 1 O’Clock in the night, Tiger Memon (AA) came with
many persons including Dadabhai (A-17) alongwith a motor lorry and
the goods on that lorry were unloaded at one room of Wangni Tower.
Tiger Memon (AA) checked all the goods in their presence and they
had witnessed 70/80 black coloured boxes of chemical, 250/300
handgrenades, 15/20 small pistols and 60-70 big rifles, wires like
electrical wires, empty magazines (cassettes) of rifles and large
number of bullets. All these were packed in cardboard boxes, carton
and gunny bags. In respect of the incident dated 8th/9th March, 1993,
this accused (A-11) disclosed about the presence of the said
respondent (A-17) alongwith other co-accused persons who had
already reached by a Maruti-1000 car at Vesava at about 4.30 a.m.
There they took `Sarai’ and then went to the hill side in the jungle,
where Tiger Memon (AA) was throwing handgrenades in the ditch in
order to give training to 5-7 persons. Those persons also practiced on
operating rifles. This training went on for two hours. Dadabhai (A-
17) was staying downside. When around 5-6 persons assembled there
on hearing the sound of gun-firing, Dadabhai (A-17) told them that
film shooting was going on the hill, so they went away. Those
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persons were known to Dadabhai (A-17). It was at that time about 12
O’clock in the noon, those persons after getting training, came down
and handed over empty magazines to Dadabhai (A-17) and left for
Bombay.
Confessional statement of Parvez Nazir Ahmad Shaikh (A-12):
146. So far as the present respondent (A-17) is concerned, he
disclosed that on 3rd February, 1993, after landing the smuggled
goods, they were brought to the Wangni Tower in a motor lorry by
Tiger Memon (AA) alongwith other co-accused, namely, Shafi,
Anwar, Javed, Yakub, Dadabhai (A-17) and Dawood Taklya (A-14)
etc. All the goods in the lorry were unloaded in the Wangni Tower
and in accordance with the number series written on the packages, all
the goods were separated from each other. After shifting the
goods/contraband, all the material which was used for packing was
burnt by Dadabhai (A-17) and his men, and as there was no space in
the vehicles for keeping 59 bags of chemical, they were loaded again
in the truck, what happened of those thereafter, he (A-12) did not
know. He further deposed that Tiger Memon (AA) had shown a
pencil like article and said that this pencil costs Rs.25,000/- and with
this pencil, he could explode one Oberoi Hotel. In the entire incident
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of smuggling on 3rd February, 1993, Dadabhai (A-17) was all along
with Tiger Memon (AA) alongwith other persons.
Confessional statement of Mohomed Iqbal Mohomed Yusuf Shaikh (A-23):
147. He disclosed in respect of the incident of landing/transportation,
and corroborated the statements of other co-accused and disclosed that
Dadabhai (A-17) was present and participated in the said activity and
he (A-17) was present when the bomb was thrown by Tiger Bhai and
Mehmud while training certain persons on the hillock. After hearing
the sound after the explosion, Tiger Memon (AA) told Dadabhai (A-
17) that the said hillock was not safe. Then Dadabhai (A-17) took
them to another place. The said hill was far away from the earlier
place in the jungle. Tiger Memon (AA) made the accused (A-23) and
other persons practice gun firing by rifle AK-56. After having
training, they came down the hill and found Dadabhai (A-17) standing
there near the car and from there they came back to Bombay.
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Confessional statement of Shanawaz Abdul Kadar Qureshi (A- 29):
148. He corroborated the other co-accused and he disclosed that
when landing took place, they brought the contraband and started
unloading and separating the goods which were wrapped in gunny
bags. The rest of the 50-60 big boxes which were very big, were
again loaded in the same truck by them. The empty cartons were
burnt by Dadabhai (A-17) and his men. After loading the articles, the
truck left.
Confessional statement of Bashir Ahmad Gani Khairulla (A-13):
149. He disclosed that when they went for landing, Tiger Memon
(AA) was accompanied by various co-accused including Dadabhai
(A-17).
Confessional statement of Manoj Kumar Bhanwar Lal Gupta (A- 24):
150. He disclosed that at about 4.00 p.m., on 2nd February, 1993,
Tiger Memon (AA) came to the Mhasla Tower alongwith 25 boys
including Dadabhai (A-17).
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Confessional statement of Muzammil Umar Kadri (A-25):
151. He disclosed that Dadabhai (A-17) was the partner of Rahim
Laundrywala and Dawood Taklya (A-14) and he had seen all of them
near the Wangni Tower.
Confessional statement of Syed Abdul Rahman Kamruddin Syed (A-28):
152. He disclosed the involvement of Dadabhai (A-17) alongwith
others in the purchase of sacks for loading and unloading from a firm.
Confessional statement of Khalil Ahmed Sayed Ali Nasir (A-42):
153. He disclosed that respondent (A-17) was a close associate of
Dawood Taklya (A-14) and Rahim Laundrywala.
Confessional statement of Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46):
154. He disclosed that during the relevant period of 3rd February,
1993, they had been staying at Alibagh alongwith respondent (A-17).
He left with Shafi for Sandheri village. The lorry also followed them.
On reaching the village Sanderi, Dadabhai (A-17) loaded 40-50
bundles of empty gunny bags in the lorry. Dadabhai (A-17) loaded
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the truck with 59 gunny bags. The said accused and Dadabhai (A-17)
went to the house of Dadabhai (A-17) in Maruti car and found two
jeeps already parked near the house.
Confessional statement of Sujjad Alam Abdul Hakim Nazir (A- 61):
155. He corroborated the version of the other accused in respect of
the loading and unloading at Wangni Tower on 3rd February, 1993 and
disclosed that Dadabhai (A-17) was also present there.
Confessional statement of Tulsi Ram Dhondu Surve (A-62):
156. He disclosed about the loading and unloading of contraband at
Wangni Tower and participation of Dadabhai (A-17) alongwith other
accused.
Confessional statement of Nasir Abdul Kadar Kewel @ Nasir Dhakla (A-64):
157. He corroborated the version of Tulsi Ram Dhondu Surve (A-
62) in all material respect.
Confessional statement of Gulam Hafiz (A-73):
158. He was a hotel employee and disclosed that at the relevant time,
respondent (A-17) who was a landing agent of Tiger Memon (AA),
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and smuggler of gold and silver, came there to the hotel alongwith a
person and from there they went to Wangni Tower.
Confessional statement of Mohamed Sultan Sayeed (A-90):
159. He disclosed about the meeting in the hotel with Dadabhai (A-
17) and he has called the said accused to furnish some information
about landing etc. as he wanted to give secret message to Shri R.K.
Singh, Assistant Collector (A-102). He (A-90) also disclosed that this
accused (A-17) was son-in-law of A.R.Antulay’s sister.
Confessional statement of Mohd. Parvez Zulifkar Qureshi (A- 100):
160. He also corroborated the version of other witnesses/accused, in
all material respect and supported the case of the prosecution.
Evidence of Usman (PW-2) :
161. According to his deposition, the witness himself was involved
in anti-social activities. He knew respondent (A-17). It was
respondent (A-17) who booked the room in hotel Big Splash for the
boys of Tiger Memon(AA). Respondent (A-17) helped Tiger Memon
(AA) in collecting bags from the trawler. He was the person who had
supplied the boys, for loading and unloading the contraband and after
shifting the goods, the empty boxes of RDX etc. were destroyed by
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respondent (A-17). This witness also identified the respondent (A-17)
in court.
Evidence of Vijay Govind More (PW-137) :
162. According to this witness, the respondent (A-17) was involved
in the smuggling and in the incident of February 1993. He was the
agent of landing and transportation with Dawood Phanse (A-14) and
had brought the goods to Wangni Tower. Therein, it was shifted from
truck to tempos.
163. Harish Chandra Surve (PW-108) corroborated the version
given by the respondent (A-17) and he (PW.108) deposed that he had
come on the relevant date, i.e., on 3rd February at Wangni Tower
alongwith Dawood Phanse (A-14) in jeep and he participated in
shifting the goods from truck to tempos. He identified respondent (A-
17) in the court.
164. Narendra Thale (PW-141) is the employee of Hotel Big
Splash and deposed that respondent (A-17) booked the rooms in Hotel
Big Splash and thus, corroborated the version given by Parvez Nazir
Ahmed Shaikh (A-12).
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165. Vijay D. Kadam (PW-344) supported the version of other
witness/ accused and particularly in respect of booking the rooms in
Hotel Big Splash by respondent (A-17).
166. Dileep M. Katarmal (PW-284) deposed that he was the
Manager of the Company from where the jute bags were purchased in
bulk and it was respondent (A-17) with his son Mujib Sharif Parkar
(A-131) who had purchased the bags.
167. Jahi S. Kirkire (PW-285) corroborated the version of Dileep
M. Katarmal (PW.284) in respect of purchase of gunny bags. Suresh
Meecheri (PW.485) is the recovery witness.
168. The aforesaid evidence was considered and appreciated by the
learned Designated Court, which recorded the following conclusions:-
(i) Respondent (A-17) was guilty of the offences charged directly
against him which in its term established his engagement to
carry out the object of the conspiracy and it made him guilty
in the conspiracy charge also.
(ii) Respondent (A-17) was fully aware about the nature of
goods smuggled into India that it contained rifles, pistols,
bullets, detonators, hand-grenades etc.
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(iii) That in spite of the knowledge of nature of
contrabands/smuggled goods, respondent (A-17) continued with
the operation which he had undertaken.
(iv) Applying the test of judicial pronouncements by this Court,
respondent (A-17) was party to a conspiracy for which charge at
head firstly was framed against him.
(v) Hardly there was any evidence to reveal that respondent (A-17)
was present in the meeting which had taken place in Hotel Big Splash
by Tiger Memon.
(vi) Though there was some evidence which created suspicion of
high degree regarding involvement of respondent (A-17) in
conspiracy for which charge at head firstly was framed, respondent
(A-17) was not liable for conspiracy as it was not proved that he was a
party to the agreement for commission of illegal acts. As he had not
been the party to such meeting, he could not be held liable for
conspiracy on the said count alone.
(vii) Respondent (A-17) had effected the landing and continued with
the said landing in spite of acquiring the knowledge of said landing
being not of silver and being of arms, ammunitions and explosive
substance. He was not liable for offence of conspiracy as his act had
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not transcended beyond effecting the said landing for which he had
agreed before knowing precise nature of goods to be smuggled.
(viii) Respondent (A-17) did not do anything to furthering the object
of conspiracy. Therefore, he could not be held liable for the
offence of conspiracy. Thus, he did not act for furthering the
object of conspiracy and was not liable for the said offence.
More so, he did not participate in the crime committed at
Bombay in furtherance of the object of conspiracy.
The aforesaid findings make it crystal clear that they were
mutually inconsistent and could not be in consonance with each other.
169. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
170. The respondent (A-17) while making his statement under
Section 313 CrPC answered the court as under:
“I knew that all the weapons and explosives were to be used in Mumbai and that Bombay Blast were to be brought about at various places and that revenge on Hindus was to be taken. But since Tiger Memon had threatened him he did not disclose the same to anyone.”
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171. The Special Judge recorded the finding that the respondent did
not do anything to further the object of conspiracy. However, landing
was not of silver and gold, but of arms, ammunition and explosives.
The respondent was fully aware of the nature of the smuggled articles
and also the purpose for which the contraband goods had been
smuggled into India. Even after having such a knowledge, his close
association with Tiger Memon (AA) confirmed and he participated
and facilitated the transportation of the said articles.
In such a fact-situation, the Special Judge was not justified in
acquitting the respondent (A-17) of the charge of conspiracy.
The appeal is allowed. The respondent is convicted for the charge
firstly, and awarded the life imprisonment. He is directed to surrender
before the learned Designated Court within a period of four weeks to
serve out the remaining sentence, failing which the Designated Court
will secure his custody and send him to jail to serve out the sentence.
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CRIMINAL APPEAL NO. 1027 OF 2012
State of Maharashtra …Appellant
Versus
Manoj Kumar Bhanwarlal Gupta …Respondent
172. This criminal appeal has been preferred against the impugned
judgments and orders dated 5.6.2007 and 2.8.2007 passed by the
Special Judge of the Designated Court under the TADA in Bombay
Blast Case No. 1/93, by which The respondent (A-24) has been
acquitted of the charge of conspiracy and has been convicted under
Section 3(3) TADA and has been awarded the sentence of 7 years RI
and a fine of Rs.50,000/-, and in default of payment of fine to suffer
further RI for a period of one year. Further, under Section 5 TADA,
he was awarded 10 years imprisonment and a fine of Rs.1 lakh, and in
default of payment of fine to suffer further RI for three years. He was
further found guilty under Section 6 TADA and was awarded the
sentence of 14 years and a fine of Rs.1 lakh, and in default of
payment of fine to suffer further RI for three years. He was also
convicted under Section 3(3) TADA and Section 201 IPC, and was
awarded 5 years imprisonment and a fine of Rs.25,000/-, and in
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default of payment of fine to suffer further RI for a period of six
month. All the sentences have been directed to run concurrently.
173. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the respondent (A-
24) was charged under Section 3(3) TADA, for his participation in
weapons’ training conducted by Tiger Memon for handling arms,
ammunition and explosives which took place at Sandheri and
Bhorghat, (Dist. Raigad) and his association in smuggling, landing
and transportation of the arms, ammunition and explosives on 3rd and
7th February, 1993; thirdly, he was charged under Sections 5 and 6
TADA for having possession of 2 pistols, one revolver and one
country made pistol unauthorisedly; and lastly for his involvement in
disposal of 59 packages of explosives i.e. RDX, by engaging the
services of others and throwing them at Nagla Bunder Creek. He (A-
24) was thus found guilty under Section 3(3) TADA and Section 201
IPC.
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B. After conclusion of the trial, the respondent was held guilty of
the charges as referred to hereinabove, but has been acquitted of the
charge of conspiracy.
Hence, this appeal.
174. Mr. Satya Kam, learned counsel appearing for the appellant has
submitted that the involvement of the respondent (A-24) had been
from the very beginning and he had been in close association of Tiger
Memon (AA) and was involved in hatching the conspiracy, assisting
him in landing and transportation of arms, ammunition and
explosives. Therefore, he ought to have been convicted for the first
charge. Thus, the appeal deserves to be allowed.
175. On the contrary, Ms. Farhana Shah, learned counsel for the
respondent (A-24) has submitted that he had already served the
sentence of 14 years and deposited the fine, and has already suffered a
lot. Therefore, it is not warranted to entertain this appeal against his
acquittal in view of the parameters laid down by this Court in this
regard. Therefore, the appeal is liable to be dismissed.
176. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
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177. Evidence against the respondent (A-24):
(a) Confessional statement of Manoj Kumar Bhanwarlal Gupta (A-24)
(b) Confessional statement of Imtiyaz Yunusmiya Ghavte (A-15)
(c) Confessional statement of Noor Mohammed Haji Mohammed
Khan (A-50)
(d) Confessional statement of Nasir Abdul Kader Kewal @Nasir
Dakhla (A-64)
(e) Confessional statement of Tulsi Ram Dhondu Surve (A-62)
(f) Confessional statement of Mohd. Dawood Mohd. Yusuf Khan
(A-91)
(g) Confessional statement of Shahnawaz Abdul Kadar Qureshi
(A-29)
(h) Confessional statement of Shaikh Mohmed Ethesham Haji
Gulam Rasool Shaikh (A-58)
(i) Deposition of Mohd. Usman Jan Khan (PW.2)
178. Confessional statement of Manoj Kumar Bhanwarlal Gupta (A-24) :
His confessional statement was recorded on 30.4.1993 and
9.5.1993. The respondent (A-24) in his confessional statement had
disclosed that he had been indulged in the criminal activities since
very young age and had committed murders and was indulged in
Hawala business with Iijaz Mohd. Sharif @ Eijaz Pathan @ Sayyed
Zakir (A-137-dead) who was living at that time in Dubai as well as in
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Bombay. He had murdered Majeed in 1986 and absconded. He had
also committed the murder of one Hameed alongwith Dawood
Shamsher Aziz. Even though, he had been arrested several times in
most of the cases but, he had been granted bail.
In July 1989, he had murdered Kamaljit Singh as per the
instructions of Ayub and then murdered one Mahmood who had
murdered his friend Kailash Jain in Udaipur, Rajasthan. However, in
these cases he remained absconding. Further in January, 1992, he
came back to Bombay and started Hawala business and at that time he
stabbed a person named Hallu and remained absconded. He had
developed close association with Tiger Memon (AA). On 2.2.1993,
Tiger Memon, Hazi Yakoob @ Hazi Yeda Yakoob (AA)
accompanied by 20-25 persons went to Mhasla tower and met
Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiya, (A-
14) and Dadabhai (A-17) there. They all went to Shekhadi alongwith
Tiger Memon where he (AA) alongwith others went in the sea and
came back with certain bags. The bags were containing AK-56 rifles,
handgrenades, magazines and pistols.
Tiger Memon gave him (A-24) one AK-56 rifle, 2 loaded
magazines and 1 bag containing handgrenades. Tiger Memon asked
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him (A-24) to sit alertly on the sea-shore and also explained to him
the procedure of using the handgrenades by removing its pin. After
some time, a truck came there and the goods were shifted from boats
into the truck. He went to Mhasla Tower by another jeep where the
packets were unloaded and opened. There were AK-56 rifles,
handgrenades, pistols and cartridges in those packets. He had seen
those packets containing black soap. The black soap was unloaded in
two tempos and weapons and cartridges were loaded in jeep and
tempos in the cavities made therein. Altogether, there were five jeeps
and two tempos for all these goods. On the instructions of Tiger
Memon, the vehicles left in different directions. Tiger Memon and
Haji Yeda Yakoob told him (A-24) to stay in the house of Hazi
Yakoob at Khar, and he (A-24) stayed there.
Respondent (A-24) again participated in the second landing on
9.2.1993 wherein uploading of goods started and were unloaded
within two hours. Tiger Memon (AA) brought the goods to Mhasla
Tower and left next morning for Bombay. Tiger Memon (AA) paid
him (A-24) a sum of Rs.20,000/- for the job. Iijaz Pathan (A-137)
telephoned him from Dubai and warned him not to disclose it to
anybody. Further, Respondent (A-24) was contacted by the co-
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accused for the disposal of 59 packets stored in a godown and he had
taken Rs. 5 lacs for doing the job and got the said goods destroyed
through his persons in Nagla Bunder Creek. He (A-24) disclosed that
the contraband used in Bombay Blast were the same which had been
unloaded at Shrivardhan.
179. Confessional statement of Imtiyaz Yunusmiya Ghavte (A- 15):
He (A-15) has disclosed that on 3.2.1993, Tiger Memon and
other people were there at Shekhadi, and Munna (A-24) was also one
of them. They were carrying bags on their back. When the bags were
opened it contained AK-56 rifles, handgrenades, magazines,
cartridges and explosives. Tiger Memon was noting down the
calculation of the unloaded articles in his diary. He (A-15) has
disclosed that in the second week of February 1993, Munna (A-24)
was given two rifles at the instance of Bhai which were brought by
him in a suitcase. The accused witness, Shaikh Ali, Munna (A-24)
and three other persons were asked to sit in the tempo containing 84
bags of the explosives.
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180. Confessional statement of Noor Mohammed Haji Mohammed Khan (A-50):
He has also made the disclosure statement in respect of the
disposal of the 59 bags containing RDX in a godown which were
thrown with the help of Munna (A-24) at the instance of Rashid Khan.
He (A-50) has disclosed that he asked Rashid Khan to help him in
arranging the said material. Rashid told him that he would get it done
through his friend Munna (A-24), who has a large number of boys to
do the said job. They decided to pay Munna (A-24) a sum of Rs.5
lakhs for throwing the material and the 59 packets containing RDX in
the Nagla Creek by the boys of Munna (A-24).
181. Confessional statement of Nasir Abdul Kader Kewal @Nasir Dakhla (A-64):
This accused (A-64) has disclosed about the landing at
Shekhadi in which Munna (A-24) had participated with others. He (A-
64) has disclosed about the full participation of Munna (A-24) in
landing and transportation of arms and ammunition brought from
Shekhadi to Bombay in the tempo of Haji and further disclosed that
he had always been moving alongwith Tiger Memon (AA) during the
said operation.
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182. Confessional statement of Tulsi Ram Dhondu Surve (A-62):
This accused had disclosed about the incident at Wangni Tower
on the relevant date and disclosed that Munna (A-24) was with Tiger
Memon at Wangni Tower alongwith other persons, and they first
unloaded the contraband at Wangni Tower and then uploaded it in the
jeep and tempo and most of the persons were armed with guns and
pistols there.
183. Confessional statement of Mohd. Dawood Mohd. Yusuf
Khan (A-91):
This accused has disclosed that 7-8 days before Ramzan in
1993 he went to M.K. Builders, Bandra on the instructions of Iijaz
Bhai (A-137) from Bombay and there he met with Dev who contacted
Iijaz Bhai (A-137) and told him that A-24 had arrived. At that time
Iijaz (A-137) and Munna (A-24) came out of the office, and gave him
the key of the vehicle parked outside. They all boarded the vehicle
and Munna (A-24) sat in the back seat. He (A-24) saw a black bag
lying on the back seat and Iijaz (A-137) told him about the three
stunguns lying inside the bag, and asked him to keep them in his
house for some time. When they reached Kurla, Iijaz (A-137) asked
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Munna (A-24) to leave. Thereupon, Munna (A-24) took the bag from
the back seat and handed it over to the accused witness (A-91).
184. Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29):
He (A-29) has disclosed that on the last days of January or in
the first week of February, 1993, Javed Chikna asked (A-29) to
accompany him to receive the smuggled goods of Tiger Memon.
They went to Jetty and found three boys there including Munna (A-
24), who also participated in the landing and transportation.
185. Confessional statement of Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh (A-58):
This accused (A-58) has disclosed that Munna was in close
association of Tiger Memon and of other co-accused, and was staying
in the house of Haji Yakoob @ Yakoob Yeda (AA).
186. Deposition of Mohd. Usman Jan Khan (PW.2):
He has deposed that in December 1992, riots took place in
Bombay and Javed Chikna was wounded by a police bullet and was
admitted in the hospital. He (PW.2) and Shahnawaz visited him there.
While attending the funeral of the son of Aziz, he met Shafi, the
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driver of Tiger Memon. Shafi spoke in confidence with Javed Chikna
and Javed Chikna took the witness accused alongwith him on the next
day to the coastal area where Tiger Memon’s goods were coming. He
(PW.2) had participated in the landing and transportation alongwith
the other persons and Munna (A-24) was also one of them. He had
met Tiger Memon in hotel Big Splash in Rooms nos. 51, 54 and 55
booked. They stayed there and at that time they were told by Tiger
Memon that the government failed to stop the humiliation of Muslims,
thus, he had arranged some arms and ammunition from Pakistan
which were to reach on that day. In the said meeting, a large number
of persons were there including Munna (A-24).
He has also deposed his participation in landing on 3rd and 7th
February, 1993 in which the arms, ammunition, particularly AK-56
rifles, pistols and handgrenades had been smuggled. Karimullah was
also there. They had brought the material to Wangni Tower. After
unloading and opening the same they were again shifted in the jeeps
and tempos, and were brought to Bombay. Munna (A-24) was also in
the party.
187. The Special Judge had recorded the finding that the
corroborative material supported his involvement in the Shekhadi
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landing and transportation, and he was absconding alongwith other
accused. However, he was acquitted from the first charge on the
basis of following reasons:
“Due to his involvement in Shekhadi landing he could be convicted under Section 3(3) TADA, but it would be significant to note even the evidence pertaining to Shekhadi landings and acts committed by Munna (A-24) in connection with said landings for which he had been held guilty clearly reveal that Munna (A-24) was not the main person responsible for effecting the said landing nor had played any prominent role except escorting Tiger Memon who was effecting the said landing and the goods which were to be landed and were to be transported from Shekhadi to Wangni Tower and thereafter to Bombay. Even considering the role played by Munna (A-24) who participated in the said landing clearly appeared to be on much lower pedestal than the other who were primarily responsible in organizing and effecting the said landing i.e. Tiger Memon, A-14, A-17, A-15 and few more. Even considering his further acts for which he has been held guilty under Sections 5 and 6 of TADA, it was clear that same were not committed by him in pursuance of any conspiracy of Bombay Blast. Further, considering the quantum of contraband arms and ammunitions of pistols, revolver and country made pistol he could be found guilty for commission of offences under Sections 5 and 6 TADA. Even considering his role played by him in disposal of RDX, it was clear that though he was involved still he was not the main person in disposal of the said RDX or the same was the material which was brought in Shekhkadi landing by Tiger Memon and stored in the godown. His involvement was only that he had been uptil hotel at Ghodbunder. He had hardly
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played any prominent role in disposal of any RDX and had allowed his name to be used by other accused for knocking handsome amount of money from Noor Mohammed Haji Mohammed Khan (A- 50) in whose godown such material was found stored. Evidence further revealed that he could receive only a sum of Rs.10,000/- out of the amount of Rs.5 lakhs which was taken by accused Mohd. Jindran and Rashid Khan from Noor Mohammed Haji Mohammed Khan (A-50) for disposal of the said material. Therefore, he cannot be held responsible for acting in pursuance of main conspiracy and his case would definitely fall on lower pedestal than such other accused persons who were repeatedly committed different acts in pursuance of main conspiracy.”
(emphasis added)
188. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
189. From the confessional statement made by the accused it can be
ascertained that he (A-24) was aware of the arms and ammunition being
landed. He stated that he was given arms and further, was told to sit on
alert. He also stated that Tiger Memon (AA) even taught him how to
use handgrenades and also paid him for his services. He was also later
contacted by co-accused for the disposal of 59 packets stored in a
godown and was paid Rs. 5 lakhs for the same. He further revealed that
the contraband used in the Bombay Blast of 12.3.1993, was the same as
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had been landed by him and other co-accused at Shrivardhan. Co-
accused Imtiyaz (A-15), Noor Mohammed (A-50), Nasir Dhakla (A-
64), Tulsi Ram (A-62) Dawood Yusuf (A-91), Shahnawaz (A-29) and
Ethesham (A-58) have corroborated the knowledge of the respondent
and the fact that he was present when the landing was taking place.
190. The involvement and participation of Munna (A-24) was
throughout the main conspiracy. The order of the learned Designated
Court acquitting him on the charge of larger conspiracy is perverse, in
view of the evidence on record. Therefore, conspiracy stands proved.
Judgment to that extent is set aside and the appeal is allowed, and the
sentence is enhanced to life imprisonment. The respondent is directed
to surrender before the learned Designated Court within a period of
four weeks to serve out the remaining sentence, failing which the
Designated Court will secure his custody and send him to jail to serve
out the sentence.
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CRIMINAL APPEAL NO. 597 OF 2011
State of Maharashtra through CBI .. Appellant
Versus
Sarfaraj Dawood Phanse … Respondent
191. This appeal has been preferred against the judgment and order
dated 2.8.2007, passed by the Special Judge of the Designated Court
under the TADA for the Bombay Blast case, Greater Bombay, in the
Bombay Blast Case No. 1/93, by which the respondent has been
convicted under Section 3(3) TADA and acquitted of the main charge
of conspiracy.
192. In addition to the main charge of conspiracy, the respondent (A-
55) has been found guilty for offence punishable under Section 3(3)
TADA, and on the said count, he has been convicted and sentenced to
suffer RI for 9 years, alongwith a fine of Rs.25,000/-, and in default,
to suffer RI for 6 months. However, the respondent has been acquitted
of the first charge of conspiracy.
Hence, this appeal.
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193. Shri Mukul Gupta, learned senior counsel appearing for the
appellant has submitted that acquittal of the respondent on the charge
of conspiracy is unwarranted and uncalled for as large number of co-
accused, particularly, Abdul Gani Ismail Turk (A-11), Suleman
Mohammed Kasam Ghavate (A-18), Ibrahim (A-41), Sajjad Alam (A-
61), Tulsi Ram Dhondu Surve (A-62), Mohd. Sultan Sayyed (A-90)
and the depositions of Harish Chandra Surve (PW-108) and Vijay
Govind More (PW-137) specifically revealed a very deep involvement
of the respondent in the offence and the evidence is sufficient
warranting his conviction for the charge of conspiracy also.
Therefore, the appeal deserves to be allowed.
194. On the contrary, Ms. Farhana Shah, learned counsel appearing
for the respondent has submitted that he had already served the
sentence of 10 years, though awarded the sentence of 9 years, and also
deposited a fine of Rs.25,000/-. There is nothing on record to
implicate the said respondent in conspiracy, as he had no knowledge
as what was going to happen, and he had no intention to participate in
the offence, for which he has been charged so far as the conspiracy is
concerned. Therefore, no further conviction is required.
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195. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
196. Respondent has not made any confessional statement.
Confessional statement of Abdul Gani Ismail Turk (A-11) :
197. The confessional statement of Abdul Gani Ismail Turk (A-11)
revealed that on 8th/9th February 1993, Suleman Mohammed Kasam
Ghavate (A-18) and (A-11) returned to Mhasla from Panvel after
meeting Tiger Memon (AA), when they were carrying the goods
brought from Mhasla and went to the house of accused Dawood @
Dawood Taklya Mohammed Phanse (A-14), and thereafter accused
Sarfaraj Dawood Phanse (A-55) had accompanied Abdul Gani Ismail
Turk (A-11) and Suleman Mohammed Kasam Ghavate (A-18) to
Bombay and they dropped Sarfaraz Dawood Phanse (A-55) at the
guest house at Bandra at the say of Dawood Phanse (A-14).
Confessional statement of Dawood @ Dawood Taklya Mohammed Phanse (A-14) :
198. The confessional statement of Dawood Phanse (A-14) revealed
that after his arrival from Bombay, Sarfaraz Dawood Phanse (A-55)
told him that the absconding accused Shafi had been to their house
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and told that he had kept the weapons in the house of Muzammil
Umar Kadri (A-25).
Confessional statement of Suleman Mohammed Kasam Ghavate (A-18) :
199. The confessional statement of Suleman Mohammed Kasam
Ghavate (A-18) disclosed that the said accused had been to Mhasla
alongwith Abdul Gani Ismail Turk (A-11) and Uttam Shantaram
Potdar (A-30) for bringing the part of the goods which had been
smuggled in the first landing operation. He also corroborated the
meeting of Abdul Gani Ismial Turk (A-11) and Suleman Mohammed
Kasam Ghavate (A-18) with Tiger Memon (AA) at Panvel and had
given the message of Tiger Memon (AA) to Dawood @ Dawood
Taklya Mohammed Phanse (A-14) and thereafter taken the accused
(A-55) alongwith him to Bombay.
Confessional statement of Sajjad Alam (A-61):
200. The confessional statement of Sajjad Alam (A-61) revealed that
on 20.1.1993 that said accused (A-61) had gone to the house of his
grandmother and at that time he found accused Muzammil Umar
Kadri (A-25) present taking 16 rifles and 32 magazines by a jeep
alongwith accused (A-55).
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Confessional statement of Tulsi Ram Dhondu Surve (A-62):
201. The confessional statement of Tulsi Ram Dhondu Surve (A-62)
disclosed that during the second landing and transportation operation
of contraband goods organised by Dawood @ Dawood Taklya
Mohammed Phanse (A-14) and Tiger Memon (AA), accused (A-55)
was also present near Wangni Tower alongwith other co-accused.
Confessional statement of Mohd. Sultan Sayyed (A-90):
202. The confessional statement of Mohd. Sultan Sayyed (A-90)
disclosed that on 12.2.1993, respondent (A-55) had been to the rest
house at Mhasla and enquired about R.K. Singh, Assistant Custom
Collector (A-102). The respondent (A-55) was carrying one plastic
bag containing Rs.3 lacs with him which he handed over to R.K.
Singh.
203. The Designated Court after considering the entire evidence
came to the following conclusion:
“53-B) Thus considering material contained in confessions of above stated accused and so also evidence to which brief reference is made in the later part it can be safely said that A-55 who is son of main landing agent responsible for Shekhadi landing i.e. A-14 was involved not only in said landing but so also even earlier to same in committing nefarious activities. Needless to add that as denoted by further dilation involvement of
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A-55 in commission of acts for which he is charged at head 2ndly and, consequently in commission of offence u/sec. 3(3) of TADA Act is squarely borne from the same. With regard to argument canvassed that material in above referred confession or that of witnesses pertaining to events which had occurred at Wangni Tower not disclosing any positive overt act on part of A-55 or that at time of exchange of goods he was not at Wangni Tower or that he was only travelling on motor cycle etc. and as such himself being involved by Investigating Agency in case only because he is son of A-14 does not appeal to mind after considering in proper perceptive relevant material. Even accepting that A-55 was then moving on motor cycle still considering time of dead night at which he was doing so, place at which he was moving etc. clearly shows falsity of all said submissions after considering material in entirety disclosing acts committed by A-55. The same considered upon earlier acts of A-55 in concealment of weapons at his house in absence of his father etc. his participation in going to house of A- 42 as disclosed by aforesaid material clearly repels all said submission. However, even carefully considering all material/evidence available against A-55 and same having not transcended beyond acts committed by him in facilitating Dighi landing and/or transportation of goods smuggled and same failing to disclose any material showing his nexus with conspiracy for which he is charged with or conspiracy for which his father A-14 held to be guilty it will be extremely difficult to accept that his guilt for same can be said to have been established by prosecution only on basis of his guilt found to be established for commission of offence u/sec.3 (3) of TADA Act”.
(Emphasis added)
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204 We do not see any cogent reason to interfere with the impugned
judgment applying the parameters laid down by this court for
interference against the order of acquittal. The evidence on record
disclosed his involvement and association with Tiger Memon (AA) in
landing and transportation, but that is because his father Dawood
Phanse (A-14), was the landing agent. The appeal lacks merit, and is
accordingly, dismissed.
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CRIMINAL APPEAL NO. 407 OF 2011
The State of Maharashtra through CBI .. Appellant
Versus
Ayub Ibrahim Patel … Respondent
205. This appeal has been preferred against the judgments and orders
dated 10.11.06 and 31.05.07, passed by the Special Judge of the
Designated Court under the TADA for the Bombay Blast case,
Greater Bombay in Bombay Blast Case No.1/93, by which the
respondent Ayub Ibrahim Patel (A-72) has been found guilty for the
offences punishable under Section 3(3) TADA and on the said count
has been convicted and sentenced to suffer RI for 5 years alongwith a
fine of Rs.25,000/- and in default, to further undergo RI for 6 months.
He has also been found guilty under Section 5 TADA and has been
sentenced to suffer RI for 10 years and has been ordered to pay a fine
of Rs.50,000/-, in default of payment of fine, he has been ordered to
suffer further RI for one year. The Respondent has further been found
guilty under Section 6 TADA, and has been sentenced to suffer RI for
10 years and has been ordered to pay a fine of Rs.50,000/-. In default
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of payment of fine, he has been sentenced to suffer further RI for one
year. The Respondent also stands convicted under Sections 3 and 7
read with Section 25(1-A)(1-B)(a) of the Arms Act. However, he has
been acquitted of the charge of conspiracy.
Hence, this appeal.
206. Shri Mukul Gupta, learned senior counsel appearing for the
appellant has submitted that the respondent had been found to be in
the unauthorized possession of 20 hand grenades, which were part of
the consignment of arms that had been smuggled into India by the
terrorists. The said hand grenades were recovered from his house
upon his disclosure statement. Therefore, he ought to have been held
guilty for the charge of conspiracy.
207. On the contrary, Shri S.P Sinha, learned counsel appearing for
the respondent has submitted that the respondent has not preferred any
appeal against his conviction on any other charges. He has already
served out the sentence that was awarded to him, and has also paid
the fine. After appreciating the evidence on record, the Special Judge
has acquitted the respondent of the charge of conspiracy.The facts of
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the case do not warrant any further interference. Thus, the appeal is
liable to be dismissed.
208. We have considered the rival submissions made by the learned
counsel for the parties and perused the evidence on record.
209. Confessional statement of Baba alias Ibrahim Mussa
Chauhan (A- 41) revealed that he was well acquainted with Abu
Salem (AA), and Anis Ibrahim Kaskar, brother of Dawood Ibrahim.
On 15th January 1993, Salem telephoned him (A-41) to find a garage
equipped with closed shutters. In this regard he (A-41) spoke to Salem
and Anis Ibrahim Kaskar several times. Salem asked him (A-41) to
keep 2/3 AK-56 Rifles for a few days and also told him that they
should be kept by him (A-41) at his house. On 16th January, 1993
Salem came to his house and then they went to the house of Sanjay
Dutt (A-117) and delivered some of the contraband arms to him. A
bag containing 20 grenades was kept by him (A-41) in the car owned
by Sameer (A-53) and a bag containing 3 Rifles, 16 Magazines, 25
hand grenades and 750 bullets was taken by him (A-41). The said
goods were not taken back by Salem as promised, so he (A-41)
contacted Salem to take it back. A-41 received a message to give 2
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AK-56 Rifles, 6 Magazines to Salem Kurla. After some time Salem
met A-41 and the latter informed Salem that remaining goods were
kept with a man named Ayub residing at Oshivara. At that time
Salem had 30 loaded magazines wrapped in a plastic bag and he
handed over the bag over to A-41 and told him (A-41) that he had
spoken to Ayub via telephone and asked him to keep the goods with
A-41. Accordingly, on the same day Ayub came with a bag
containing 1 AK -56 Rifle, which along with magazines and a bag
was kept at one place. After 2/3 days, Salem came to A-41 and
handed over a vehicle asking him to leave it at a place near Ram and
Shyam Talkies at Jogeshwari and hand over the vehicle to Ayub and
there were further instructions for Ayub to keep all the goods except
hand grenades in the car and to leave the car near the office of Salem.
A-41 handed over the car to Ayub and conveyed the message. After
Bombay blast, Salem Kurla was arrested and on his information
police arrested A- 41 on or about 28th of March 1993. After his arrest,
the father of A-41 obtained the bag which he had kept with Ayub
through Haji Ismail and produced it before the police.
210. Recovery panchnamas – Exts.154-155 make it clear that Sub-
Inspector Nerlekar had interrogated the accused Ayub Ibrahim Patel
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(A-72) and he expressed his desire to make the disclosure statement.
At that time, two Panchas were called through the Constable and in
their presence, Ayub Ibrahim Patel (A-72) made the statement that he
had concealed the hand-grenades, the recovery of which he would get
effected. The recovery was made and proved by Nerlekar (PW.605)
and the panch witness (PW.44). According to the said witnesses, after
recording the disclosure statement, i.e., the panchnama, the accused
(A-72) led the Panchas and police team to room no.202 on the second
floor of Noora Building in Dalwai compound, opposite Ajit Glass
Factory Oshiwara(West). The appellant (A-72) rang the door bell of
the said room and the door was opened by one lady and she was
introduced by A-72 as his wife named Smt. Kausar. Thereafter, Ayub
Ibrahim Patel (A-72) led the panchas and police in the said room and
took out a plastic bag from a steel cupboard near the eastern wall of
the house. The said bag contained 20 hand-grenades. The same was
handed over to the Sub-Inspector Nerlekar (PW – 605) who drew a
panchnama and left for Worli Police Station with the hand grenades.
211. The Special Judge after appreciating the entire evidence
summarised the whole case against Ayub Ibrahim Patel (A-72) as
under:
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“However, after carefully considering the matters from the said confession reveals that A-41 had handed over the bag containing 25 hand grenades to Iqbal Tunda and had informed about the same to Salem and Iqbal Tunda had informed him of the same being kept with Ayub residing at Oshiwara still there appears full substance in the criticism advanced by the ld. Defence counsel that hardly there exists any material on record to come to the conclusion that the person by name Ayub from Oshiwara referred in the said confession is A-72. There is also further substance in the defence criticism in such an eventuality 25 hand grenades could have been found with A-72…..Thus considering the aforesaid evidence of recovery and particularly statement made by A-72 showing his authorship in keeping the relevant hand grenades and apart from same A-72 at the trial having not given any other explanation about the reason because of which such hand grenades were in his house or his knowledge about the same all the said factors establishes himself being in possession of such contraband material attracting the provisions of Sec. 5 of TADA. Now considering the statutory presumption arising out of the relevant facets established and the same having remained unrebutted at the trial will safely lead to only conclusion of A-72 of having possessed the same for the purpose of terrorist act or terrorist activity. The same is apparent in view of the law regarding the same as explained by the Hon’ble Constitutional Bench of the Apex Court in the decision in the case of Sanjay Dutt v. State of Maharashtra reported in 1995(5) SCC 410. In view of the same A-72 will be required to be held guilty for commission of offence u/s 5 of TADA.
Though the aforesaid evidence clearly establishes of A-72 to be in possession of such contraband material within notified area still there being no evidence to come to the conclusion that the same were part & parcel of the consignment smuggled into country by co-conspirators for commission of terrorist acts for which the charge at head 1stIy is framed, A-72 cannot be held guilty for the said conspiracy. However,
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possessing huge quantity of hand grenades considered with other evidence not denoting involvement of A-72 in any terrorist activity also leads to the conclusion of the same being either kept with him for storage purpose and/or for assisting some other co-conspirators for commission of terrorist acts. Needless to add that the same is also suggestive of A-72 having made the preparation for commission of terrorist acts. In view of the same A-72 will be also required to be held guilty for commission of offence u/s. 3 (3) of TADA. Similarly considering the quantity of hand grenades found in possession of A-72 the same also denotes of himself having committed offence u/s. 6 of TADA and so also the offence punishable u/s.3 & 7 r/w Sec. 25(1-A) (I-B) (a) of Arms Act. In light of discussion made hereinabove Point Nos. 170 to 173 will be required to be answered in consonance with the conclusion arrived during the said discussion i.e. A-72 having committed all the said offences for which the said points are framed but for the reasons stated hereinabove. However, hardly there being any evidence of A-72 of having committed the said offence in pursuance of conspiracy for which he has been charged due to nexus of material found with him being not established with the material smuggled for commission of Serial bomb Blast and there being no other evidence he will be required to be absolved from the offence of conspiracy for which he is charged with”. (Emphasis added)
212. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
213. From the above discussion it is evident that Baba Chauhan (A-
41) had given 20 hand grenades to one Ayub resident of Oshiwara.
However, he has also disclosed that after his arrest on 28th March,
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1993, the said contraband had been produced before the police by his
father through Haji Ismail. In view of the above, the conclusion
reached by the learned Designated Court that there is nothing on the
record to establish that Ayub of Oshiwara could be Ayub (A-72), does
not require interference. In such a fact-situation, the respondent (A-
72) is entitled to benefit of doubt, so far as the charge of conspiracy is
concerned. The appeal lacks merit, and is accordingly, dismissed.
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CRIMINAL APPEAL NO. 1025 OF 2012
State of Maharashtra …Appellant
Versus
Mohd. Shahid Nizamuddin Qureshi … Respondent
214. This appeal has been preferred against the judgment and order
dated 2.8.2007 passed by the Special Judge of the Designated Court
under the TADA in the Bombay Blast Case No.1 of 1993, by which the
said respondent has been convicted under Section 3(3) TADA, and has
been awarded a sentence of 10 years rigorous imprisonment, alongwith
a fine of Rs. 25,000/-, and in default of payment of fine, to further
undergo RI for six months. He has been acquitted of some of the other
charges including the main charge of conspiracy.
Hence, this appeal.
215. Shri Mukul Gupta, learned senior counsel appearing for the
appellant, has submitted that there is enough evidence to show the deep
involvement of Mohd. Shahid Nizamuddin Qureshi (A-135) in the
said crime and, therefore, he ought not to have been acquitted for the
charge of conspiracy.
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216. Ms. Farhana Shah, learned counsel appearing for the
respondent (A-135), has submitted that he has already suffered
tremendously. He has served 11-1/2 years of sentence, though he was
awarded only 10 years rigorous imprisonment, and has also deposited
the fine. He has not filed any appeal against his conviction, as he has
reconciled himself with his fate. There is nothing on record to show that
the accused (A-135) had any knowledge of the contraband, or how the
same was going to be used. He had no intention to harm any one.
Thus, the findings recorded by the Designated Court on this issue, do
not require any interference.
217. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
218. The confession of the accused (A-135) was recorded, however,
the same has been discarded by the Special Judge on the ground that the
police officer who had recorded the confessional statement, had not
ensured compliance with Section 15 TADA and Rule 15(3) TADA
Rules, 1987.
219. However, as far as the charge of conspiracy is concerned, the
other evidence is of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-
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64) who has revealed, that in either at the end of January 1993 or in the
beginning of February 1993, at the instance of Tiger Memon (AA),
Javed Chikna, the accused (A-64) etc., had participated in the landing
of contraband goods such as rifles, bullets, handgrenades, detonators,
RDX etc. at the Shekhadi coast. The said goods had been transported to
the Wangni Tower, and here, the bags containing the contraband had
been opened and weapons, cartridges etc., had thereafter been
concealed in fake cavities of the vehicles that had been arranged for the
transportation of the smuggled goods into Bombay. During the said
operation, the accused (A-135) had actively participated alongwith
Javed Chikna, and various other associates. He has further disclosed
that 3-4 days after the first landing, a second landing had taken place, in
which the contraband were smuggled in through Shekhadi coast, in
which yet again, the accused (A-135) had actively participated. Usman
(PW.2) has also deposed that the accused (A-135) had in fact,
participated in the said landing, as well as in the transportation of the
contraband material.
220. However, a question does arise with respect to whether the
accused (A-135) had been aware of the contents of the contraband, and
whether he had known the purpose for which the weapons etc., had
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been smuggled into India. As per the material on record, it becomes
evident that Tiger Memon (AA) and his close associates, including the
accused (A-135), had first gone to Hotel Big Splash at Alibagh, and
from there they had gone to the seashore to participate in the said
landing. At this time, the close associates of Tiger Memon (AA), had
been fully armed with AK-47/56 rifles, revolvers, magazines and
cartridges. They had taken up positions near the seashore to prevent any
kind of interference. The goods had then arrived in large packets, which
had been unloaded with the help of some villagers who were already
present there, as the same had been deployed by Dawood @ Dawood
Taklya Mohammed Phanse(A-14). After the loading of the goods into
a truck, the contraband had been brought to Wangni Tower. All the
packets had been taken inside the tower, and when the same had been
opened, it had become evident that the packets contained explosives,
cartridges and arms. These arms had then subsequently, been filled into
secret cavities that had been created in the jeeps, and were then taken
away. After 2-3 days, Yeda Yakub, Riaz Khatri, Munna Jadia,
Ehtesham (A-58), Akbar and Karimullah had gone in a Maruti van and
had picked up Nasir (A-64). Yeda Yakub had told them that more
arms were scheduled to arrive for Tiger Memon (AA) at the Shekhadi
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coast, for the purpose of which, they would have to go there. They had
thus, participated in the second landing as well, and had brought in the
said goods. At such time, the associates of Tiger Memon (AA) had also
been present there, alongwith Shahid Qureshi (A-135). Following the
orders of Tiger Memon (AA), the packets of arms and explosives had
been loaded into a jeep and a tempo, and had been taken to Bombay.
221. The deposition of Usman Ahmed Jan Khan (PW-2) has
revealed that Tiger Memon (AA) had convened a meeting at the hotel
Big Splash, and had expressed his desire to take revenge for the
demolition of the Babri Masjid. Shahid (A-135) had also been present
at the said meeting. From the hotel, they had left for Shekhadi Coast in
jeeps. At about 11 p.m., Tiger Memon (AA) and his associates,
including the accused (A-135) had gone to high sea, in a boat. The said
boat had taken them to a big red speed boat. Tiger Memon (AA) had
gone over to the other boat, and had brought out seven bags of military
colour from the said speed boat. The bags had contained guns, pistols
and handgrenades, and also AK-56 rifles.
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222. The Designated Court, after appreciating the entire evidence on
record with respect to Nizammudin Qureshi, has recorded the following
conclusion:
“All said evidence considered in proper perspective clearly reveals close association of A-135 with Tiger Memon and/or himself man of confidence of Tiger Memon. All said evidence considered in proper perspective clearly reveals involvement of A-135 in Shekhadi landing episode.
Similarly entire evidence having remained confined to act committed by A-135 of assisting and aiding Shekhadi landing and transportation operation and there existing no cementing material revealing his involvement in conspiracy he will be required to be held not guilty for offence of conspiracy for which charge is framed at head 1st ly.”
223. Undoubtedly, the respondent had participated in the landing at
Shekhadi when the contraband were smuggled into India. However, as
the evidence on record as well as the findings recorded by the
Designated Court remain to the effect that he had not been aware of the
articles smuggled, he cannot be held liable for punishment for
conspiracy.
224. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
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225. We concur with the finding recorded by the learned Designated
Court, and find no reason to interfere with the order passed by the
Special Judge. The appeal lacks merit, and is accordingly dismissed.
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CRIMINAL APPEAL NO. 599 OF 2011
State of Maharashtra …Appellant
Versus
Shaikh Mohd. Ethesham …Respondent
226. This appeal has been preferred against the judgment and order
dated 2.8.2007 passed by the Special Judge of the Designated Court
under the TADA for Bombay Blast Case No.1 of 1993, by which the
respondent (A-58) was found guilty under Section 3(3) TADA and
awarded a sentence of 10 years with a fine of Rs.25,000/- with
suitable RI in default of payment of fine, for the commission of
offence of conspiracy to commit terrorist act; and further sentenced to
suffer RI for 10 years with a fine of Rs. 25,000/- with suitable RI in
default of payment of fine, for the commission of offence punishable
under Section 3(3) TADA, for commission of such acts as abovesaid.
However, he has been acquitted of the general charge of conspiracy
i.e. first charge.
227. Facts and circumstances giving rise to this appeal are that :
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A. In addition to the general charge of conspiracy, the respondent
(A-58) had been charged under Section 3(3) TADA, firstly on the
ground, that he had participated and assisted Tiger Memon (AA) and
his associates in smuggling, landing and transportation of arms,
ammunition etc., into India for the purpose of terrorist activities.
Secondly, he had assisted in landing at Shekhadi on 3rd and 7th
February, 1993 and had further agreed to undergo a training in
Pakistan for handling of arms, ammunition and explosives for
committing terrorist acts and had even attended a conspirational
meeting at Dubai to plan commission of terrorist acts.
B. After conclusion of the trial, the Designated Court convicted
the respondent as referred to hereinabove, but acquitted of the charge
of larger conspiracy.
Hence, this appeal.
228. Shri Mukul Gupta, learned senior counsel appearing on behalf
of the State, has submitted that the respondent had been a very close
associate of Tiger Memon and had participated in landing and went to
Dubai for the purpose of getting training in handling of arms,
ammunition and explosives, attending the conspiratorial meetings at
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Dubai. Therefore, the learned Designated Court under TADA,
committed an error in acquitting him of the first charge of larger
conspiracy. Thus, the appeal deserves to be allowed.
229. Ms. Farhana Shah, learned counsel appearing on behalf of the
respondent, has opposed the appeal contending that the respondent
had already served the sentence of 10 years and paid the fine. He did
not file any appeal against the conviction. Though he went to Dubai
for going to Pakistan for having training in handling of arms,
ammunition and explosives, but did not get any training whatsoever,
and his acts were prior to hatching of the conspiracy. He did not
participate in any of the illegal activity/conspiracy subsequent to
coming back from Dubai. Therefore, the order impugned does not
need any interference whatsoever.
230. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
231. The evidence against the said respondent (A-58) is disclosed in
the confessional statements of Nasir Abdul Kadar Kewal @ Nasir
Dhakla (A-64), Shaikh Kasam @ Babulal Ismail Shaikh (A-109),
Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Shaikh (A-126),
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Mohd. Iqbal Shaikh Ibrahim (A-127), Shahnawaz Khan Faiz Mohd.
Khan (A-128) and Murad Ibrahim Khan (A-130). The said
confessional statements revealed that the respondent (A-58) had
participated in the landing at Shekhadi. He was present at the Wangni
Tower at the time of shifting the contraband and had also participated
in second landing at Shekhadi. He had also attended the meeting in a
partially constructed building in Khar and agreed to go out of India for
receiving the arms’ training in Pakistan. He went to Dubai on
14.2.1993, but could not go to Pakistan and stayed in Dubai for 14
days and returned to India on 2.3.1993. While in Dubai, he had taken
an oath of secrecy that he would not disclose anything about the
conspiracy to anyone.
The aforesaid evidence also stands corroborated by the
evidence of Usman Ahmed Jan Khan (PW-2) and Prakash Ramugade
(PW-207).
232. The Designated Court after appreciating the entire evidence on
record reached the conclusion as under:
“Thus considering material in the confession of A-58 and aforesaid co-accused the same leads to the conclusion of A-58 also being involved in Shekadi landing operation as denoted by said material and as such having committed offence u/s. 3(3) of TADA for
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which he is charged at head 2nd ly clause `a’. In the said context it is necessary to add that considering evidence pertaining to Shekhadi landing in proper perspective and role carried out by A-58 in the same and during said operation contraband material being opened at the sea shore and so also exchanged from truck to other vehicles at Wangni Tower, the defence submission that A-58 was not aware about nature of contraband material to be brought etc. does not appeal to mind. Needless to add that considering material in confession of other co-accused regarding Shekhadi landing episode it is difficult to accept such submission. Needless to add that A-58 was man of close confidence of Tiger Memon is being also revealed from fact of himself being given weapon during relevant operation.
Similarly A-58 himself having participated in said operation in which large quantity of arms, ammunition and explosives were smuggled into India leading to legitimate conclusion of same being brought for commission of terrorist act and still A-58 thereafter having agreed to undergo weapon training in operating arms, ammunition in foreign country and in said process having gone to Dubai but being required to return in view of further arrangements being not made clearly denotes A-58 was party to conspiracy to commit terrorist act punishable u/sec. 3(3) of TADA Act.
However all said acts committed by A-58 being much prior to main conspiracy of committing serial blast having taken final shape i.e. during conspiratorial meetings held in month of March, 1993 and A-58 after returning from Dubai having not participated in any act furthering object of larger conspiracy for which charge at head 1st ly in framed he cannot be held liable for larger conspiracy and he will be required to be held guilty for conspiracy to commit terrorist act as stated aforesaid.” (Emphasis added)
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233. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
234. In view of the fact that the respondent has already served the
sentence of 10 years and paid the fine, therefore we are not inclined to
allow this appeal. It is accordingly dismissed.
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CRIMINAL APPEAL NO. 395 of 2011
State of Maharashtra …Appellant
Versus
Farooq Illiyas Motorwala … Respondent
235. This appeal has been preferred against the final judgment and
order dated 2.8.2007, passed by the Special Judge of the Designated
Court under the TADA in Bombay Blast Case No.1 of 1993, by which
the respondent has been found guilty for the offences under Section
3(3), and awarded 13 years RI with a fine of Rs.25,000/- and in
default of payment of fine, to suffer further RI for 6 months. He was
also convicted under Section 3(3) TADA, and awarded 7 years RI
with a fine of Rs.25,000/-, in default of payment of fine, to suffer
further RI for 6 months. However, he has been acquitted of some
other charges including the larger conspiracy.
236. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the charge against
the respondent was that in pursuance of the conspiracy, he visited
Dubai on a fictitious passport No. H-118352, obtained by him in the
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name of Kazi Salim Illyas and participated in conspiratorial meeting
held at Dubai alongwith other co-accused Mohmed Jamil Omar
Khatlab (PW-1) (approver), who had been recruited for undergoing
weapons training in Pakistan.
B. After conclusion of the trial, the Designated Court convicted
the respondent as referred to hereinabove, but acquitted of some
charges including the larger conspiracy.
Hence, this appeal.
237. Shri Mukul Gupta, learned senior counsel appearing for the
appellant has submitted that there was sufficient material on record to
show the involvement of the respondent in larger conspiracy and the
Special Judge has committed an error in acquitting him for the said
charge. Thus, the appeal should be allowed.
238. On the contrary, Mr. S.P. Sinha, learned counsel appearing for
the respondent (A-75) has submitted that the respondent has been
awarded 13 years’ rigorous imprisonment and a fine of Rs. 50,000/-.
The respondent has already served the sentence and also deposited the
fine. Therefore, at such a belated stage, this court should not interfere
against the order of acquittal, in view of the parameters laid down by
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this court, for entertaining the appeal against acquittal. Thus, the
appeal is liable to be dismissed.
239. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
240. Evidence against the respondent (A-75):
(a) Confessional statement of the respondent (A-75)
(b) Confessional statement of Mohd. Salim Mira Moiddin Shaikh @ Salim Kutta (A-134)
(c) Deposition of Mohd. Jabir Umar Khatlab (PW-1)
(d) Deposition of Tota Tiwari (PW-340)
(e) Deposition of Rajan Dhoble (PW-585)
Confessional statement of the respondent (A-75):
241. He disclosed that he indulged in smuggling of goods and used
to go to Dubai frequently. He was introduced by his friend Latif
Bagwala to Tahir Merchant. The respondent (A-75) had a passport,
however, he obtained another passport in a fictitious name i.e. Kazi
Salim Illyas Majid Rajkotwala and on a fictitious address. On
15.1.1993, he went to Dubai on the passport obtained in a fictitious
name and attended the meetings with Tahir Merchant. Respondent
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(A-75) called his friend Mohd. Jamil Omar Khatlab (PW.1)
(approver) to Dubai and sent him to undergo arms’ training in
Pakistan. Respondent (A-75) returned to Bombay on 27.2.1993 and
Mohd. Jamil Omar Khatlab (PW.1) also came back after having
training in Pakistan in handling weapons. After the Bombay blast,
Mohd. Jamil Omar Khatlab (PW.1) had told him (A-75) that a person
had come from Tahir Merchant and asked him to keep guns and
pistols.
Confessional statement of Mohd. Salim Mira Moiddin Shaikh @ Salim Kutta (A-134):
242. The said co-accused did not name the respondent (A-75)
specifically. However he corroborated that there were 7 conspiratorial
meetings held in Dubai at the behest of Dawood Ibrahim and Mustafa
Majnu and an oath was administered to them for taking revenge from
Hindus for the damage of Babri Masjid.
243. Mohd. Jamil Omar Khatlab (PW-1) deposed that on
11.2.1993, respondent (A-75) took him to Tiger Memon (AA) at Al-
Husseini Building. Tiger Memon (AA) told them that during
December 1992 and January 1993, Muslims had greatly suffered.
Babri Masjid was demolished and Indian Government remained a
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mere spectator. So they should take revenge. Thereafter they were
administered oath to take revenge. He further disclosed that Tiger
Memon had told them that he would teach a lesson to the Indian
Government by exploding bombs at various places and attack people
with rifles and for that purpose he wanted persons who can participate
in such actions. At this juncture, Mohmed Jamil Omar Khatlab
(PW.1) and respondent (A-75) had agreed to participate. Mohd. Jamil
Omar Khatlab (PW.1) told Tiger Memon (AA) that he did not know
how to handle arms. Thereafter, the respondent (A-75) told Mohd.
Jamil Omar Khatlab (PW.1) that he would be sent for weapons
training in Pakistan where I.S.I. would train them and Mohd. Jamil
Omar Khatlab (PW.1) agreed to go to Pakistan for the same. Tiger
Memon (AA) had told them that young Muslims from all over India
would be sent to Pakistan for weapons’ training and they decided to
destroy the society and create panic and for that purpose he would get
all the required assistance from Pakistan. They were also
administered oath again by Tiger Memon (AA) that none of them
would disclose any information about the plan. On 20.2.1993, Mohd.
Jamil Omar Khatlab (PW.1) got a phone call from the respondent (A-
75) from Dubai who instructed him to reach Dubai on 24.2.1993. He
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was also informed that one Walter D’Souza, friend of respondent (A-
75) would hand over the passport of Mohd. Jamil Omar Khatlab
(PW.1). On 24.2.1993, he (PW.1) received the passport and he left
for Dubai on 25.2.1993. This witness also identified the air tickets
etc. in the court. Mohd. Jamil Omar Khatlab (PW.1) further deposed
that he reached Dubai airport on 25.2.1993 at about 4.45 p.m. and
respondent (A-75) and one Tahir Bhai received him at the airport and
Tahir Bhai had made arrangements for his stay at Dubai. On
26.2.1993, a meeting of Tahir Merchant with the respondent (A-75)
took place at the flat of Tahir Merchant and in the said meeting Tahir
Merchant told Mohd. Jamil Omar Khatlab (PW.1) that he had to leave
for Islamabad where he would be given military training to fight
against Hindus and particularly for throwing bombs and operating fire
arms.
244. The case of the prosecution was further corroborated by the
Investigating Officer as well as by the panch witnesses, particularly,
Tota Tiwari (PW-340) and Rajan Dhoble (PW-585) and the
documents (i.e his fictitious passport, embarkation and
disembarkation cards.) which facilitated the journey of the
respondent (A-75) from Bombay to Dubai and Dubai to Bombay.
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245. The learned Designated Court after appreciating the entire
evidence held:
“19. Thus, considering all the aforesaid self- eloquent matters revealed from the evidence of PW-1, the same squarely reveals the manner in which A-75 had taken PW-1 to Tiger Memon. It is significant to note that upon Tiger Memon telling the matters narrated in clause (3), PW-1 had expressed to him that he was not knowing to operate weapon and thereafter A-75 had told PW-1 that he will be sent for weapon training at Pakistan where ISI will help him in training and PW-1 had agreed for going to Pakistan for weapon training. 20.Since the further matters stated in further part of evidence of PW-1 having revealed the manner in which he had been to Dubai, A-75 along with Tahir Bhai had been to the airport for receiving him and the further acts committed by A-75 and the fact of PW-1 having been to Pakistan and having participated in training programme, clearly reveals PW-1 was initiated in conspiracy by A-75 i.e. the conspiracy to which he was party since earlier. Needless to add that all the said material clearly establishes A-75 having committed the offence under Section 3(3) of TADA for which he was charged with and so also himself being in conspiracy for commission of terrorist acts as observed earlier during the discussion made in Part-10. 21.Though the aforesaid evidence clearly reveals involvement of A-75 in a conspiracy to commit terrorist acts and himself having initiated PW-1 in the said conspiracy still the evidence reveals that A-75 had not committed any act after 26th February 1993 for furthering the object of conspiracy to which he was party or to the larger conspiracy for which he has been charged at head firstly. 22.Now considering the evidence which has surfaced at trial, it is clear that the targets for commission of
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bomb Blast at Bombay were discussed by Tiger Memon for the first time to other co-conspirators in the meetings which had taken place after 6th of March, 1993 at the house of Babloo or Mubina. Thus, there being hardly any evidence on record of A-75 being aware that the serial bomb Blast were to be committed by committing explosions at such place and/or himself having not participated in any other operation after 26th February, 1993, though the evidence reveals his involvement in conspiracy still the same does not transcend further than establishing involvement of A-75 in the conspiracy other than commission of terrorist acts made punishable under Section 3(3) of TADA. Since knowledge of the object of conspiracy is the vital part for determining liability of conspirator in a conspiracy to commit the offences and even though some suspicion might be arising due to the acts committed by A-75 also being involved in larger conspiracy as every conspirator need not know every act to be committed by other conspirators or the other conspirators still the same cannot take the place of proof of involvement of A-75 for the larger conspiracy.”
(Emphasis added)
246. The Special Judge while dealing with the sentence part
observed :
“Thus guilt of A-75 for offence of conspiracy has remained confined to the extent of himself being guilty for offence of conspiracy to commit terrorist act. Needless to add that it was neither prosecution case nor any evidence has surfaced on record revealing that either A-75 had participated in any of the further operation which were effected for furthering the larger object of conspiracy and/or
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himself being aware that the explosions were to be committed in Bombay by the co-conspirators.
xxxxx Thus in light of reasoning given aforesaid, it
will be difficult to accept submission of ld. Chief P.P. to give maximum to A-75 for the reasons canvassed by him and dealt earlier and so also for any other reason, which is also precisely absent. At the cost of repetition, it will be necessary to say, that even it is accepted that inducting such person into conspiracy is a heinous act still merely on said count awarding maximum punishment to accused responsible for same de hors considering the extent of other acts committed by him and thereby assessing the element of criminality existing in him would amount allowing oneself to be swayed by feelings and would amount of having acted without any logical reasoning behind it. Needless to add that an adult person joining any conspiracy would be always due to such decision taken by him the entire liability of his such a decision cannot be fastened upon other who have advocated with him for joining such a conspiracy. Having regard to the same, while awarding punishment to A- 75 it will be necessary to take into account the gravity of the act committed by him and so also the other circumstances relevant to same as urged on his behalf or even otherwise.
However, at the same time the relevant facet spelt from evidence that A-75 had not committed any terrorist act at any point of time or after 24th Feb., 1993 any act furthering the object of conspiracy for which he has been found to be guilty or furthering object of larger conspiracy of which outcome was Serial Bomb Blast.”
247. The parameters laid down by this Court in entertaining the
appeal against the order of acquittal have to be applied.
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248. The Special Judge recorded the finding that the respondent did
not do anything to further the object of conspiracy. However, he was
involved in sending Mohd. Jamil Omar Khatlab (PW-1) to Dubai and
further to Pakistan for getting initiated in the training of weapons. The
respondent received the co-accused at the airport and attended 7
conspiratorial meetings held in Dubai. Admittedly, the respondent
who travelled to Dubai had a fictitious passport for a particular
purpose. He further went to Pakistan and undertook the training in
handling the arms, ammunition and explosives. He met Tiger Memon
(AA) in Dubai, who told him that they would teach a lesson to the
Indian Government by exploding bombs etc. However, the learned
Designated Court did not convict him on the charge of conspiracy.
Such a conclusion is not worth acceptance and the said finding being
perverse, is liable to be set aside.
The appeal is allowed. The respondent has now been convicted
for the charge first and awarded the life imprisonment. He is directed
to surrender before the learned Designated Court within a period of
four weeks to serve out the remaining sentence, failing which the
Designated Court will secure his custody and send him to jail to serve
out the sentence.
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CRIMINAL APPEAL NO. 397 of 2011
State of Maharashtra through CBI …Appellant
Versus
Mohd. Rafiq Usman Shaikh … Respondent
249. This appeal has been preferred against the final judgment and
order dated 2.8.2007 passed by the Special Judge of the Designated
Court under the TADA in Bombay Blast Case No.1 of 1993, by which
the respondent/accused has been convicted for the offences punishable
under Section 3 (3) TADA and awarded 7 years RI with a fine of
Rs.15,000/- and in default of payment of fine, to suffer further RI for 3
months on each count. However, he has been acquitted of the general
charge of conspiracy.
250. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant (A-
94) was charged under Section 3(3) TADA, as he had visited Pakistan
alongwith other co-conspirators via Dubai and underwent training in
handling of arms, ammunition and explosives with the object of
committing terrorist acts and even attended the meetings at the
residences of Nazir Ahmed Anwar Shaikh @ Babloo (AA) and Mubina
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Bai where plans for committing terrorist acts were discussed/finalised.
Further, he had also taken oath in the name of Quran while in Dubai,
not to disclose to anybody about the conspiracy.
B. After conclusion of the trial, the respondent was held guilty of
the charges as referred to hereinabove but has been acquitted of the
charge of conspiracy.
Hence, this appeal.
251. Mr. Mukul Gupta, learned senior counsel appearing for the
appellant has submitted that the Special Judge was not justified in
imposing such a lenient punishment in view of the fact that the
respondent (A-94) had gone to Pakistan and acquired the knowledge in
handling of arms and ammunition during training. He had attended the
conspiratorial meetings wherein conspiracy was not only hatched, but
plans for committing terrorist acts were also given final stage.
Moreover, he had taken oath as to non-disclosure of information about
the conspiracy in the name of Quran in Dubai. Therefore, the appeal
deserves to be allowed.
252. On the contrary, Ms. Farhana Shah, learned counsel appearing
for the respondent has submitted that the respondent (A-94) had been
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awarded 7 years RI which he has already served. He had also deposited
the fine imposed upon him. The deposition of Mohd. Usman Jan Khan
(PW.2) is not worth reliance for the reason that he was also an accused
who, subsequently turned to be an approver. Moreover, Mohd. Usman
Jan Khan (PW.2) had not named him (A-94) specifically as being
present in the conspiratorial meeting on 10.3.1993 and there is no
material even on record to show that the respondent (A-94) was present
on 11.3.1993 in the conspiratorial meeting at Al-Husseini building.
Therefore, the respondent (A-94) cannot be discriminated against, as his
role had been like all others particularly, Gul Mohamamed @ Gullu
Noor Mohmed Shaikh (A-77), Mohmed Hanif Mohmed Usman Shaikh
(A-92), Mohmed Sayeed Mohmed Issaq (A-95), Shaikh Ibrahim Shaikh
Hussein (A-108) and Usman Man Khan Shaikh (A-115) except that
none of the above named accused had participated in the conspiratorial
meetings.
Moreover, in spite of the fact that on 10.3.1993, the respondent
(A-94) was present in the conspiratorial meeting and accepted a sum of
Rs.5,000/- from Tiger Memon (AA), he did not participate in any overt
act on the fateful day i.e. 12.3.1993, when the Bombay Blast took place.
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Therefore, no interference is required with the impugned judgment and
order, and enhancement of punishment is not warranted.
253. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
254. Evidence against the respondent (A-94):
(a) Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
(b) Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)
(c) Confessional statement of Nasim Ashraf Sherali Barmare(A-49)
(d) Confessional statement of Parvez Mohmed Parvez Zulfikar Qureshi (A-100)
(e) Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)
(f) Confessional statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
(g) Confessional statement of Abdul Khan (A-36)
(h) Confessional statement of Firoz @ Akram Amani Malik (A-39)
(i) Confessional statement of Niyaz Mohamed (A-98)
(j) Deposition of Mohd. Usman Jan Khan (PW-2)
(k) Deposition of Jagdesh Lohalkar (PW.237)
(l) Deposition of Ramchandra (PW.231)
255. Confessional Statement of Mohd. Rafiq Usman Shaikh (A-
94) - He has disclosed that he was of 25 years of age and used to
wash cars and fill petrol. He lost his job 7-8 months prior to Bombay
Blast. On 16.2.1993, one Mohmed Jabir Abdul Latif Mansoor (A-93)
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(now dead) told the respondent (A-94) that his ticket to Dubai had been
arranged for 17.2.1993 and he (A-94) went to Dubai by an Air India
flight on 17.2.1993. He was received at Dubai airport by a fair looking
man with a beard at Dubai airport. The respondent (A-94) stayed in a
hotel with five other persons who had gone there for the same purpose,
namely, Haji Yakub, Anwar, Bashir and Nasir Dhakla. Four more
persons had joined them there, and on the advice of Tiger Memon (AA)
they went to the airport on 20.2.1993 to go to Islamabad. They reached
Islamabad where they were received by a person who took them to a
hilly jungle area where tents had already been pitched. On the next day,
Javed Chikna told the respondent (A-94) to get ready for pistol and
machine gun training and advised him to learn all those weapons, as
atrocities had been committed on Muslims in Bombay. Respondent (A-
94) participated in the training and came back to Dubai from Islamabad
on 1.3.1993. He also took oath in the name of Quran in Dubai
alongwith other conspirators not to reveal any information about the
training etc. to anyone. Respondent (A-94) returned to Bombay on
3.3.1993. On 10.3.1993, respondent (A-94) had participated with other
conspirators in a conspiratorial meeting at Mubina’s place at Bandra,
where targets were discussed and groups were assigned particular duties
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and each participant was given a sum of Rs.5,000/- by Tiger Memon
(AA).
256. The aforesaid confessional statement of the respondent (A-94)
was further corroborated by the confessional statement of Bashir
Ahmed Usman Gani Khairulla (A-13) to the extent that he revealed
the presence of respondent (A-94) in the conspiratorial meeting on
10.3.1993 at Bandra, and that Tiger Memon (AA) had given everybody
a sum of Rs.5,000/- in the meeting.
257. Confessional statement of Nasim Ashraf Sherali Barmare
(A-49) - He has revealed the version given by respondent (A-94) to the
extent that he (A-94) had attended the training in Pakistan and
further he (A-94) attended the meeting at Bandra on 10.3.1993, and
each of the participants was given a sum of Rs.5,000/-.
258. Confessional statement of Parvez Mohmed Parvez Zulfikar
Qureshi @Parvez Kelewala (A-100) – He has also disclosed the
similar facts as given by the respondent (A-94) in his confessional
statement to the extent that the respondent (A-94) attended the arms’
training in Pakistan.
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259. Confessional statement of Shahnawaz Abdul Kadar
Qureshi (A-29) - He has revealed that the respondent (A-94) had gone
to Pakistan for arms training via Dubai and attended the meeting in
Dubai. He had also taken on oath in the name of Quran that he would
not reveal any information about conspiracy to anyone and that he was
told in that meeting by Tiger Memon (AA) that his tickets were ready
for evening flight for Bombay.
260. Confessional statement of Zakir Hussain Noor Mohd.
Shaikh (A-32) - He has disclosed that respondent (A-94) had joined
other conspirators for training in Pakistan and took an oath in Dubai in
the name of Quran.
261. The same version stood corroborated further by the confessions
of Abdul Khan @Yakub Khan Akhtar Khan (A-36), Firoz @
Akram Amani Malik (A-39) and Niyaz Mohmed @ Aslam Iqbal
Ahmed Shaikh (A-98).
262. Mohd. Usman Jan Khan (PW.2) has deposed that he knew
the respondent (A-94) and he identified him in court. He has further
deposed that the respondent (A-94) had attended the arms’ training in
Pakistan.
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263. Jagdish Shantaram (PW.237) and Ramchandra (PW.231)
have also proved the departure of respondent (A-94) from Bombay to
Dubai on 17.2.1993 and his arrival in Bombay on 3.3.1993 respectively.
264. The Special Judge after appreciating the entire evidence came
to the following conclusion:
“109. Now considering the matters stated in the confession of A-94 the similar phenomenon is found therein and hence detailed dilation regarding same is avoided. The same also alike the confession of A-64 though reveals that A-94 had initially agreed to go to Dubai for the purposes of trip ultimately in a similar manner (but alongwith different person). He had reached the said training camp in which A-64 was acquiring training along with other persons. Similarly, the same also reveals of A-94 and his companion being cleared at Islamabad airport in the similar manner. As a difference the material on page of confession of A-94 reveals that in Pakistan A-94 had acquired the knowledge that he has to take training and at the said juncture absconding accused Javed Chikna had told him the purpose for which the said training of operating pistols and machine gun was to be taken. Now visualizing the situation then prevailing between India and Pakistan in the year 1992 and still A- 94 having continued to take training and/or not making any protest about the same even later on also clearly reveals of himself having joined the band of said. Thus, considering all the material contained in confession of other accused and concerned evidence it is amply clear that the person with beard who had met A-77 and A-94 at Dubai was none else but Tiger Memon.
xx xx xx xx 111. Now considering further material in the confession of A-94 the same in terms reveals the promptness in which he has gone to Pakistan and acquired training at
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the said place. On the said backdrop considering the earlier recitals in the confession that he had gone for a trip clearly appears to be not only inconsistent with other matters stated in the confession but the same clearly appears to have been belied by other material stated in the said confession. Thus the said recitals will be liable to be discarded. After discarding the said recitals and considering in proper perspective other material the same clearly reveals that A-94 having agreed for acquiring training at Pakistan and for the said purpose he had promptly gone and acquired the same.
xx xx xx xx 113. […] The same being not directed against any particular person the said fact clearly reveals that the same cannot be said to be of any other purpose rather than for commission of terrorist acts. The aforesaid fact is also fortified by the further material contained in the confession regarding the manner in which A-94 had taken an oath and the matters then told by Tiger Memon. 114. Thus, considering all facets from confession of A- 94 about which few are discussed hereinabove, it can be safely said that the same squarely establishes the guilt of A-94 in commission of offence for which charges are framed against him.
xx xx xx 118. In the premises aforesaid i.e. in the light of discussion made hereinabove, it can be safely said that A-16, A-29, A-32, A-36, A-39, A-49, A-52, A-64, A-77, A-92, A-94, A-95, A-98, A-100, A-108 and A-105 had been to Pakistan via Dubai themselves and as agreed had received training in handling of sophisticated arms, ammunitions, explosives for commission of terrorist acts and in said process A-77, A-92, A-95, A- 108 and A-115 had attended meeting themselves and/or the remaining also had taken on oath of secrecy and were involved in planning in commission of terrorist act after returning to India and/or utilizing the training acquired by them and thus having committed offence punishable u/s 3(3) of TADA and so also offence of conspiracy all the points under the discussion i.e. point Nos. 22, 23 and
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24, will be required to be answered in affirmative against each of them.”
TADA COURT ON SENTENCE of A-94
“519. Now considering the case of A-94 from them, though same apparently appears to be different than the remaining five due to himself having participated in the meeting on 10th of March, 1993, the close look at the evidence and particularly his confession does not reveal himself having committed any further act or any evidence denoting that he had acquired knowledge of further activities to be committed in pursuance of conspiracy to which other members in said meeting were party and in future the said members having indulged in commission of further acts furthering the objects of the larger conspiracy to which other said members are found to be guilty. Needless to add that though confession of A-94 reveals that said meeting was attended by Tiger Memon, PW-2, Javed Chikna, Bashir, A-32, A-38 and 14-15 others, the said material does not transcend further other than showing that small groups were formed at said meeting and the members of said group were discussing the matters amongst themselves and Tiger Memon had given Rs.5000/- to each of participant of the said meeting. Curiously enough material fails to denote commission of any further act by A-94 making him liable for being a party to larger conspiracy in pursuance of which further preparatory acts for commission of Serial Bomb Blast was committed. Needless to add that the material reveals that A-94 was enquired whether he was knowing driving and he had replied in negative. The material in the confession also reveals that on 14th of March, 1993, A-16 had told A-94 that Tiger Memon had caused the bomb explosions and has ran away etc. Thus, careful consideration of said material though reveals that case of A-94 is somewhat different still at the same time the same fails to establish of the same being materially different and/or being on higher pedestal than other 5 accused concerned with present discussion.
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xx xx xx 526. Thus, considering acts committed by each of aforesaid 6 accused and out of them involvement of A-94 being slightly more than others but having regard to the crucial fact that in spite of all of them at certain point of time having become party to conspiracy to commit terrorist act, in pursuance of same or otherwise having acquired the necessary training surreptitiously in a foreign country for commission of terrorist act and thus each of them having acquired/gained sufficient potential for commission of terrorist act but in fact none of them having committed such act and each of them having remained continuously in custody for a long period of 5- 6 years after arrest uptil their release on bail and the same having reduced the potential acquired by each of them for commission of heinous crime and same in turn having resulted in protecting the society at large from such potential gain and even after release of said accused on bail, their conduct being not indicative of themselves having attempted to use potential gain by them for causing any danger to society at large and in fact the act committed by all of them having not resulted in causing any danger to society and other matters stated by them during their statement recorded upon quantum of sentence will deserve not giving any much harsher or the maximum punishment to them. The same would be necessary as the conduct of these accused after their release on bail in some what indicative of there being eradication of the element of criminality because of which they had committed the crime.”
265. This Court has laid down parameters for interference against
the order of acquittal time and again and the same have to be followed
herein.
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266. In view of the fact that the respondent (A-94) had gone to
Pakistan and took training in handling the arms, ammunition and
explosives and also attended the conspiratorial meeting at Dubai and
took oath in the name of Quran not to divulge any information
regarding the conspiracy, it is abundantly clear that the respondent was
aware of the purpose of training in Pakistan and he undertook the
training there without any protest.
267. We are of the view that the Special Judge committed an error in
not convicting the respondent for the larger conspiracy. Therefore, the
appeal is allowed and he is awarded life imprisonment. He is directed
to surrender before the learned Designated Court within a period of four
weeks to serve out the remaining sentence, failing which the Designated
Court will secure his custody and send him to jail to serve out the
sentence.
……………………….J.
(P. SATHASIVAM)
……………………..…….J. New Delhi, (Dr. B.S. CHAUHAN) March 21, 2013
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Annexure ‘A’ S. No.
Criminal Appeal
Accused Name and Number
Sentence by Designated Court
Award by Supreme Court
1. 418 of 2011 Fazal Rehman Abdul (A-76)
Acquitted Dismissed
2. 409 of 2011 Manjoor Qureshi & Ors. (A-88, A-109, A-114, A- 126, A-127(dead) and A- 130)
Acquitted Dismissed
3. 601 of 2011 Krishna Sadanand Mokal & Ors. (A-83, A-84 and A-87)
Acquitted Dismissed
4. 404 of 2011 Moiddin Abdul Kadar Cheruvattam (A-48)
Acquitted Dismissed
5. 405 of 2011 Asfaq Kasam Hawaldar (A-38)
Acquitted Dismissed
6. 394 of 2011 Ismail Abbas Patel (A-80) Acquitted Dismissed
7. 1033 of 2012 Rukhsana Mohd. Shafi Zariwala (A-103)
Acquitted Dismissed
8. 594 of 2011 Sayyed Ismail Sayyed Ali Kadri (A-105)
Acquitted Dismissed
9. 402 of 2011 Mohd. Ahmed Mansoor (A-132)
Acquitted Dismissed
10. 1022 of 2012 Rashid Umar Alwar (A-27)
U/s 111 r/w Sec. 135 of Customs Act –
Dismissed
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3 years RI with fine of Rs.25,000/- and acquitted of charge of conspiracy
11. 393 of 2011 Sharif Khan Abbas Adhikari (A-60)
U/s 111 r/w Sec. 135 of Customs Act – 3 years RI with fine of Rs.25,000/- and acquitted of charge of conspiracy
Dismissed
12. 391 of 2011 Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
U/s 3(3) TADA 7 years RI with fine of Rs.50,000/-; U/s 5 TADA 10 years RI with fine of Rs.50,000/-; U/s 6 TADA 14 years RI with fine of Rs. 2 lakhs; and acquitted from
Allowed and awarded life imprison- ment
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charge of conspiracy
13. 1027 of 2012 Manoj Kumar Bhanwarlal Gupta (A-24)
U/s 3(3) TADA 7 years RI with fine of Rs.50,000/-; U/s 5 TADA 10 years RI with fine of Rs. 1 lakh; U/s 6 TADA 14 years RI with fine of Rs.1 lakh; U/s 3(3) TADA and Sec.201 IPC 5 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
Allowed and awarded life imprison- ment
14. 597 of 2011 Sarfaraj Dawood Phanse (A-55)
U/s 3(3) TADA - 9 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
Dismissed
15. 407 of 2011 Ayub Ibrahim Patel (A-72)
U/s 3(3) TADA - 5
Dismissed
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years RI with fine of Rs.25,000/-; U/s 5 TADA - 10 years RI with fine of Rs.50,000/- ; U/s 6 TADA - 10 years RI with fine of Rs.50,000 and acquitted from charge of conspiracy
16. 1025 of 2012 Mohd. Shahid Nizamuddin Qureshi (A-135)
U/s 3(3) TADA - 10 years RI with fine of Rs.25,000/-; and acquitted from charge of conspiracy
Dismissed
17. 599 of 2011 Shaikh Mohd. Ethesham (A-58)
U/s 3(3) TADA - 10 years RI with fine of Rs.25,000/-; and further U/s 3(3) TADA - 10 years RI with fine of Rs.25,000/- and
Dismissed
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acquitted from charge of conspiracy
18. 395 of 2011 Farooq Illiyas Motorwala (A-75)
U/s 3(3) 13 years RI with fine of Rs.25,000/-; U/s 3(3) TADA 7 years RI with fine of Rs.25,000/- and acquitted from charge of conspiracy
Allowed and awarded life imprinso- ment
19. 397 of 2011 Mohd. Rafiq Usman Shaikh (A-94)
U/s 3(3) TADA 7 years RI with fine of Rs.15,000/- and acquitted from charge of conspiracy
Allowed and awarded life imprison- ment
We have dealt with 19 appeals filed by the State against the order of
acquittal on certain charges and particularly, the charge of conspiracy. Out
of the said 19 appeals, we have dismissed 15 appeals, however, allowed 4
appeals bearing Criminal Appeal No. 391/2011 (Sharif Abdul Gafoor
Parkar @ Dadabhai (A-17), Criminal Appeal No. 1027 of 2012 (Manoj
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Kumar Bhanwarlal Gupta (A-24), Criminal Appeal No. 395 of 2011
(Farooq Iliyas Motorwala (A-75) and Criminal Appeal No. 397 of 2011
(Mohd. Rafiq Usman Shaikh (A-94). The respondents in these appeals ae
awarded life imprisonment and they are directed to surrender before the
learned Designated Court within a period of four weeks to serve out the
remaining sentence, failing which the Designated Court will secure their
custody and send them to jail to serve out the sentence.
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ITEM NO.1-E COURT No.2 SECTION IIA (For judgment)
S U P R E M E C O U R T O F I N D I RECORD OF PROCEEDINGS
APPEALS FILED BY THE STATE AGAINST ACQUITTAL: (PART-5) CRIMINAL APPEAL NO. 418 OF 2011
STATE OF MAHARASHTRA APPELLANTS (s)
VERSUS FAZAL REHMAN ABDUL RESPONDENT(S)
WITH Crl.A.No. 409/2011
Crl.A.No.601/2011
Crl.A.No. 404/2011
Crl.A.No. 405/2011
Crl.A.No.394/2011
Crl.A.No. 1033/2012 Crl.A.No. 594/2011
Crl.A.No. 402/2011
Crl.A.No.1022/2012
Crl.A.No. 393/2011
Crl.A.No. 391/2011
Crl.A.No. 1027/2012
Crl.A.No. 597/2011
Crl.A.No. 407/2011
Crl.A.No. 1025/2012
Crl.A.No. 599/2011
Crl.A.No. 395/2011 Crl.A.No. 397/2011
Date: 21/03/2013 These matters were called on for pronouncement of judgment today. ..2/-
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:2:
For Appellant(s) Mr. Mukul Gupta, Sr.Adv. Mr. Satyakam, Adv. Mr. Anubhav Kumar, Adv. Mr. Anando Mukherjee, Av. Mr. Harsh N. Parekh, Adv. Mr. Arvind Kumar Sharma, Adv.
For Respondent(s) Mr. Shekhar Kumar, Adv.
Ms. Anjali Jha, Adv.
Mr. Mushtaq Ahmad, Adv.
Mr. K.N. Rai, Adv.
Mr. Vishwa Pal Singh, Adv.
Hon'ble Dr. Justice B.S. Chauhan pronounced the judgment of the Bench comprising Hon'ble Mr. Justice P. Sathasivam and His Lordship.
We have dealt with 19 appeals filed by the State against the order of acquittal on certain charges and particularly, the charge of conspiracy. Out of the said 19 appeals, we have dismissed 15 appeals, however, allowed 4 appeals bearing Criminal Appeal No. 391/2011 (Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), Criminal Appeal No. 1027 of 2012 (Manoj Kumar Bhanwarlal Gupta (A-24), Criminal Appeal No. 395 of 2011 (Farooq Iliyas Motorwala (A-75) and Criminal Appeal No. 397 of 2011 (Mohd. Rafiq Usman Shaikh (A-94). The respondents in these appeals ae awarded life imprisonment and they are directed to surrender before the learned Designated Court within a period of four weeks to serve out the remaining sentence, failing which the Designated Court will secure their custody and send them to jail to serve out the sentence.
[Usha Bhardwaj] (Madhu Bala) [Savita Sainani] Court Master Sr. P.A. Court Master
Signed reportable judgment is placed on the file.
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