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APPEALS FILED BY ACCUSED WITH STATE APPEAL  (PART – 4)

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1438 OF 2007

Ahmed Shah Khan Durrani @ A.S. Mubarak S         …Appellant

Versus

State of Maharashtra          … Respondent                    

WITH  

Criminal Appeal No. 912 of 2007

WITH   

Criminal Appeal No. 1030 of 2012

WITH  

Criminal Appeal No. 1311 of 2007 AND  

Criminal Appeal No. 417 of 2011

WITH  

Criminal Appeal No. 1610 of 2011 AND   

Criminal Appeal No. 398 of 2011

WITH  

Criminal Appeal No. 1420  of 2007 AND   

Criminal Appeal No. 1031 of 2012

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WITH  

Criminal Appeal Nos. 675-681 of 2008

WITH  

Criminal Appeal No. 600 of 2011

WITH  

Criminal Appeal No. 406 of 2011

WITH  

Criminal Appeal No. 408 of 2011

WITH

Criminal Appeal No. 416 of 2011  

WITH  

Criminal Appeal No. 1034 of 2012

WITH  

Criminal Appeal No. 512 of 2008 WITH    

Criminal Appeal No. 401 of 2011 AND   

Criminal Appeal No. 595  of 2011

WITH  

Criminal Appeal No. 171 of 2008 WITH   

Criminal Appeal No. 172 of 2008 AND   

Criminal Appeal No. 403 of 2011

WITH    

Criminal Appeal No. 1630 of 2007

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AND  Criminal Appeal No. 1029 of 2012

WITH   

Criminal Appeal No. 207 of 2008 AND   

Criminal Appeal No. 415 of 2011

WITH  

Criminal Appeal No. 2173 of 2010

WITH

Criminal Appeal No. 1632 of 2007

WITH  

Criminal Appeal No. 271 of 2008

WITH   

Criminal Appeal No. 598 of 2011

WITH  

Criminal Appeal No. 1439 of 2007 AND  

Criminal Appeal No. 1035 of 2012

WITH  

Criminal Appeal No. 203 of 2008 WITH   

Criminal Appeal No. 396 of 2011 AND  

Criminal Appeal No. 414 of 2011

WITH  

Criminal Appeal No. 1423 of 2007 AND  

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Criminal Appeal No. 1032 of 2012   CRIMINAL APPEAL NO. 1438 OF 2007

Ahmed Shah Khan Durrani @ A.S. Mubarak S         …Appellant

Versus

State of Maharashtra          … Respondent

J U D G M E N T

Dr. B.S. Chauhan, J:

1. This  appeal  has  been  preferred  against  the  impugned  

judgment and order dated 30.5.2007, passed by Special Judge of  

the Designated Court under the Terrorist and Disruptive Activities  

(Prevention) Act, 1987 (hereinafter referred to as the ‘TADA’) for  

the Bombay Blast, Greater Bombay, in the Bombay Blast Case No.  

1/1993,  convicting  the  appellant  under  Section  5  TADA,  and  

awarding  the  punishment  of  5  years  RI,  alongwith  a  fine  of  

Rs.25,000/-, and in default of payment of fine, to further undergo  

RI for 6 months.  

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

A. As the facts of this case and all legal issues involved herein  

have  been  elaborately  dealt  with  in  the  connected  appeal  i.e.  

Criminal  Appeal  No.  1728  of  2007   [Yakub  Abdul  Razak  

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Memon v. State of Maharashtra thr. CBI], it may be pertinent to  

mention only the relevant facts and charges against the  appellant  

(A-20).     

B. Bombay Blast took place on 12.3.1993 in which 257 persons  

lost their lives and 713 were injured.  In addition thereto there had  

been loss of property worth several crores.  The Bombay police  

investigated  the  matter  at  initial  stage  but  subsequently  it  was  

entrusted  to  the  Central  Bureau  of  Investigation  (hereinafter  

referred  to  as  ‘CBI’)  and  on  conclusion  of  the  investigation,  a  

chargesheet was filed against a large number of accused persons.  

Out of the accused persons against whom chargesheet was filed, 40  

accused  could not be put to trial as they have been absconding.  

Thus, the Designated Court under TADA framed charges against  

138  accused  persons.   During  the  trial,  11  accused  died  and  2  

accused turned  hostile.  Further the Designated Court discharged 2  

accused during trial and the remaining persons including appellant  

(A-20) stood convicted.  

C. The  appellant  had  been  charged  for  general  conspiracy  

which is framed against all the accused persons for the offences  

punishable under Section 3(3) TADA and Section 120-B of Indian  

Penal  Code,  1860  (hereinafter  referred  to  as  ‘IPC’)  read  with  

Sections  3(2)(i)(ii),  3(3),  (4),  5  and  6  TADA  and  read  with  

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Sections  302,  307,326,324,427,435,436,  201  and  212  IPC  and  

offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B)

(a)  of  the Arms Act,  1959 (hereinafter  referred to as  the ‘Arms  

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

Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908  

and Section 4 of the Prevention of Damage to Public Property Act,  

1984.

D. In addition to the general charge of conspiracy, he had also  

been charged under Section 3(3) TADA, under Section 5 TADA  

for  keeping  one  AK-56  rifle  plus  two  empty  magazines  and  

committed  an  offence  in  respect  of  the  same  under  Section  6  

TADA, and under Section 3(4) TADA read with Section 212 IPC,  

for harbouring criminals.   

3. After conclusion of the trial, the appellant (A-20) had been  

convicted  under  Section 5 TADA,  and awarded the sentence  as  

mentioned hereinabove.   

Hence, this appeal.  

4. Shri Sunil Kumar, learned senior counsel appearing for the  

appellant (A-20), has submitted that conviction of the appellant (A-

20) under Section 5 TADA, was not warranted in view of the fact  

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that the recovery had not been proved in accordance with law. The  

disclosure statement alleged to have been made under the provision  

of Section 27 of the Indian Evidence Act, 1872 (hereinafter called  

‘Evidence Act’) has not been strictly followed. The said alleged  

disclosure statement did not bear the signature of the appellant (A-

20). There were two panch witnesses, only one has been examined.  

The panch witness examined in the case had been a stock witness  

in the police as he had appeared as a panch witness in other cases.  

He was the resident of an area in close vicinity of the office of the  

Crime  Branch  of  the  police  department.   The  watchman of  the  

Ghanshyam building from which the recovery had been made, has  

not been examined. None of the neighbours of that building have  

been  examined  as  witnesses.  There  are  material  

contradictions/omissions in the deposition of the witnesses. Even  

the  case  number  has  wrongly  been  mentioned.   The  L.A.C.  

No.22/93  had  been  manipulated  and  it  was  shown  as  

L.A.C.No.23/93.  Even the recovery of the AK-56 rifle does not  

give rise to the presumption of possession. It was further submitted  

that the confession of the appellant (A-20) had been obtained by  

coercion by severely beating him.  Therefore, the appeal deserves  

to be allowed.  

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5. On the contrary, Shri Mukul Gupta, learned senior counsel  

appearing for the respondent, has vehemently opposed the appeal  

contending that the confession of the appellant (A-20) has not been  

relied  upon  by  the  Designated  Court,  therefore,  it  remains  

inconsequential.  Only  one  of  the  panch  witnesses  had  been  

examined in order to avoid multiplicity. Mere non-examination of  

the  other  panch  witnesses  would  not  make  the  case  of  the  

prosecution  doubtful.   The  recovery  had  been  made  strictly  in  

accordance with law and in case the recovery had been made at the  

instance of the disclosure statement and from the place on which  

the appellant (A-20) had control over, the presumption has rightly  

been drawn,  particularly  in view of the fact that the appellant  (A-

20)  did not lead any evidence in defence. Thus, the appeal is liable  

to be dismissed.  

6. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

7. Evidence against the appellant (A-20):

(a) Confessional statement of the appellant (A-20)

(b) Confessional statement of Murad Ibrahim Khan (A-130)

(c) Deposition of Mohamed Ayub Mohamed Umar (PW-72)  

(d) Deposition of Sahadev (PW-181)

(e) Deposition of Nagesh Shivdas Lohar (PW-356)

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(f) Deposition of Shivaji Shankar Sawant (PW-524)

(g) Recovery of AK-56 rifle and two magazines  

Confessional statement of the appellant (A-20):

8. The confessional  statement made by the appellant  has not  

been relied upon by learned Special Judge. Therefore, we are not  

making any reference to it and it has to be ignored.  More so, we do  

not find any force in the submission made by Shri Sunil Kumar  

that there had been two FIR’s in respect of the same incident as a  

large  number  of  remand  applications  had  been  filed  and  it  is  

evident from the application that at initial stage it was shown as  

L.A.C.   23/93,  but  a  correction  had been  made  though without  

initials  by  the  person  who  made  the  correction,  but  in  his  

subsequent application it had been shown as L.A.C. 22/93. More  

so, the FIR number connecting this case is the same. Only one FIR  

had been exhibited in the court as Exhibit 1284-A dated 18.4.1993  

and it contains case no. L.A.C. 23/93. Therefore, we do not think  

that the submission requires further consideration.  

Confessional statement of Murad Ibrahim Khan (A-130):

9. He had disclosed that he was fully acquainted with Yakub  

Yeda and the appellant (A-20).  Thus, he was having acquaintance  

with hardened criminals.  

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Deposition of Mohamed Ayub Mohamed Umar (PW-72)

10.  He is a panch witness and a hawker, selling fruits on the  

footpath near Crawford Market.  He deposed that on 17.4.1993 at  

about  12.45  hours,  he  was  called  to  the  police  station  by  a  

Hawaldar  and  there  Constable,  Shivaji  Sawant,  P.I.  asked  him  

whether he would like to act as a panch witness in a case related to  

the Bombay Blast. He consented for the same and one more panch  

witness was also present in the said room.  In his presence, accused  

(A-20) disclosed his name as Salim Khan and he said in Hindi that  

he was in possession of one AK-56 rifle and two magazines in his  

workshop  the  recovery  of  which  he  would  get  effected.  The  

witness further corroborated the entire version of the recovery

The witness further deposed that the police party alongwith  

the  accused  (A-20)  and  the  panch  witnesses  proceeded  in  the  

police vehicle and towards the place disclosed by the appellant (A-

20) and entered the building pointed out by the appellant (A-20).  

The said workshop had a loft and one staircase. One police officer  

went on the loft.  Thereafter, all other persons followed him. On  

the directions of  the appellant,  cartons, scrap material and gunny  

bag  were found.  The said gunny bag was turned out for emptying  

the same.  One AK-56 rifle and two magazines were taken out of  

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the  said  gunny  bag.   The  AK-56  rifle  and  magazines  were  

separately  wrapped  in  brown  paper  and  three  packets  were  

prepared and sealed separately. The packets were signed by him,  

co-panchas and Shri Sawant.  

In cross-examination, the witness (PW.72) said that label put  

up on the recovered goods had his signature and the goods had  

been seized.  

He further denied the suggestion made by the defence that  

he was the regular panch witness for the police.  However, he had  

admitted that occasionally, he had worked as such and he had been  

a panch witness in other cases.  

Deposition of Shivaji Shankar Sawant, P.I. (PW-524)

11. He  deposed  that  on  17.4.1993,  he  was  interrogating  the  

appellant  (A-20) who was arrested in C.R. No. 71/93 alongwith  

some  other  police  officials.   During  the  said  interrogation,  the  

appellant (A-20) consented to make the voluntary statement and in  

the presence of the panch witnesses and other police officials, the  

appellant  (A-20)  made  a  disclosure  statement  in  Hindi.  He  

recorded the same in the panchanama.  The panchnama was read  

over to the appellant (A-20) and the panch witnesses. It was signed  

by  the  panch  witnesses  and  countersigned  by  him (A-20).   He  

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disclosed that the appellant (A-20) had consented to show the place  

and take out AK-56 rifle and two empty magazines kept by the  

appellant (A-20).  

He further deposed that panchnama of the recovery from the  

workshop of the appellant (A-20) was correct.  The same bears his  

signature  and  the  signatures  of  panch  witnesses  and  it  was  

completed on 18.4.1993.  

He was a Police Inspector  and working as a Dy. S.P. for  

Protection  of  Civil  Rights,  Unit  Bombay.  He  clarified  the  

correction regarding L.A.C.Nos.  22/93 and 23/93 and explained  

that there was a correction on the L.A.C. numbers. However, he  

had admitted that he had made that correction while registering the  

said case though it did not bear his initials and he was not in a  

position  to  give  any  reason  for  not  putting  his  initials  and  

correction  was  necessary  as  there  had been  some typographical  

error.  He further  stated that  he arrested the accused formally in  

L.A.C. No. 23/93 at 1.25 a.m. on 18.4.1993.  

In paras 65 and 66, he deposed that he did not register any  

L.A.C. No. 22/93 and also did not know the name of  officer who  

had  registered L.A.C. 22/93.      

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Deposition of Sahadev (PW-181):

12. He deposed that on 14.5.1993, he received requisition from  

Worli Police station for recording the confessional statement of the  

appellant A-20 and he had proved the said confessional statement.  

Deposition of  Nagesh Shivdas Lohar (PW-356)

13. He has  deposed  that  on  17.4.1993,  he  alongwith   Shivaji  

Sawant and one Head Constable interrogating the appellant (A-20)  

in  case  No.C.R.  71/93.   He  corroborated  that  Shri  Sawant  had  

asked  the  appellant  (A-20)  whether  he  wanted  to  make  the  

voluntary statement.  Thereafter, appellant made the statement in  

Hindi.  He recorded the statement of the appellant in Hindi in the  

panchnama  which  was  marked  as  Exh.  378  and  is  the  same  

panchanama recorded by him about the statement of appellant (A-

20) between 17th and 18th April, 1993.  

14. The  recovery  of  the  AK-56  rifle  and  two magazines  had  

been  made  on  17th/18th April,  1993  and  in  respect  of  the  same  

panchanama Exh. 383 makes it clear that Farid Alam Rais Alam  

Qureshi and Mohamad Ayub Mohamad Umar had been the panch  

witnesses  and in  their  presence  the  appellant  (A-20)  voluntarily  

made a disclosure statement that the AK-56 rifle was kept in his  

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workshop.  This  panchnama  was  concluded  at  23.10  hours  on  

17.4.1993.  The panchnama has been signed by both the witnesses  

as well as by the Inspector of Police, Shri S.S. Sawant. However, it  

does  not  bear  the  signature  of  the  appellant  (A-20).   It  further  

shows that in continuation of the same, the search was conducted  

and it reveals that after making the disclosure statement, the police  

had taken the accused alongwith the panch witnesses to a closed  

workshop named as ‘Bona Parte’ industry belonging to him. The  

said  workshop  was  having  its  shutter  down  and  locked  and  in  

absence of the key the police forced open the lock and opened the  

same.  The panchas alongwith the accused (A-20) and the police  

party entered the workshop and found that there was no electricity  

however, they found that the loft  measured approximately 16’ x  

40’ had a loft with a staircase. The appellant (A-20) led all of them  

to the loft by staircase. On reaching there the appellant (A-20) took  

out a box and scrap was removed.  One AK-56 rifle and empty  

magazines  were  found  wrapped  in  gunny  sack.  The  police  

examined the said material and prepared the recovery memo.  The  

recovery memo contained one AK-56 assault rifle of folding type  

butt, in rusted condition but had been greased and two magazines  

of AK-56 assault rifle with no identification marks and numbers  

and it was in rusted condition and greased.  

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15.  The Designated Court  after  appreciating the evidence on  

record came to the conclusion as under:

“A-20  having  not  explained  the  reason  of  his   knowledge  of  such  a  contraband  articles  being  kept in a said factory of which he was partner the   same  will  lead  only  to  the  inference  of  himself   having kept the same. The same is obvious as A-20   could  have  knowledge  about  the  same  in  three   contingencies i.e. a) he had kept the contrabands   himself b) having seen somebody keeping the same   there  c)  somebody  had  told  him  that  the  same   being kept at the said place or having seen himself   of  such articles being kept at that place. In view of   failure of A-20 to give any explanation regarding   his knowledge being due to the reasons as stated   in the aforesaid clauses b)  and c) the same will   lead to  the  conclusion as  stated  aforesaid.  With   regard to matter  stated in clause c)  aforesaid it   can be additionally added that since the accused   was  also  partner  of  the  said  shop  allowing  the   remaining of such articles at the said place would   also attract the liability for the same….]

The  same  is  the  case  regarding  the  submission   advanced  on  the  basis  of  A-20  at  the  time  of   recovery not having the key of the relevant gala.

In light of the aforesaid discussion it is difficult to   accept the submission canvassed that the evidence   only  establish  the  knowledge  of  A-20  of  the   contraband material  lying at  the said place and   the  same  does  not  amount  to  himself  being  in   conscious possession of the same. Needless to add   that  the  inferences  flowing  from  the  statement   made by A-20 consciously are not of a nature of   denoting himself not being in conscious possession   of contraband articles within the notified area….”

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16. We have appreciated the evidence on record and the case  

depends upon the veracity of evidence regarding recovery.  

There is sufficient material to show that the recovery had  

been made at the behest of the appellant (A-20) from the factory  

owned by a partnership to which he was the partner alongwith one  

Surjit Singh.  In such a fact-situation, he ought to have explained  

the  reason/source  of  his  knowledge  of  such  contraband  articles  

being kept in his factory.  

17. In the instant case, as he has not mentioned that he had seen  

someone  keeping  the  articles  there,  or  somebody  had  told  him  

about  that,  or  he  had  seen  the  things  lying  there,  the  only  

reasonable inference is drawn that he himself had kept the same at  

that  place.  Being  a  partner  of  the  firm  if  he  was  having  the  

knowledge that some contraband were lying in his premises,  he  

ought to have informed the police if he had no guilty mind.  

18. So far as the explanation that at the time of recovery he did  

not have the key, would not be enough to tilt the balance in his  

favour.   The fact  that  he did not  have the key becomes totally  

redundant, as no conclusion can be drawn that the appellant (A-20)  

was not  in possession of  the said premises,  and in such a fact-

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situation,  it  cannot be held that the appellant (A-20) was not in  

conscious possession of the contraband material.  

19. We do not find any force in the submissions made by Shri  

Sunil Kumar, learned senior counsel  appearing for the appellant  

(A-20),  that  the  panch  witness  was  the  resident  of  Sitaram  

building, which was opposite to the office of the Commissioner of  

Police, or in a very close proximity of the same, and was working  

on the footpath nearby the said building, and he had acted earlier  

as a panch witness in test identification parade.  

20. The police when searching for a panch witness, need  not go  

to far off place of the police station as the panchnama is required to  

be  recorded  in  a  close  proximity  of  time,  when  the  accused  

apprehending his disclosure statement. Therefore, on such material  

suspicion  about  the  credential  of  the  police  or  panch  witnesses  

cannot  be  doubted,  unless  there  is  some  material  to  prove  the  

contrary.  Had it  been picked up from a  far  off  place,  criticism  

could have been otherwise as to why the panch witness could not  

be called from neighbourhood.  

21. The panch witness Mohamed Ayub Mohamed Umar (PW-

72) could not be held to be a tutored witness or acting at the behest  

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of the prosecution only on the ground that he had also been the  

witness in another case. It does not give a reason to draw inference  

that he was a stock panch witness unless it is shown that he had  

acted in such capacity in a very large number of cases.  

22. More so, it cannot be held that Mohamed Ayub Mohamed  

Umar (PW-72) was not an independent witness, or acting under the  

pressure  of  the  police  as  he was  carrying the business  illegally  

without any license.  More so, the appellant (A-20) had made the  

disclosure statement in his presence, he could explain the same.  

Therefore, it could not be held that he was deposing falsely.   

23. We do not see any reason as to why his evidence should not  

be relied upon.  Minor omissions/contradictions regarding labeling  

and sealing  are not really the contradictions which go to the root  

of the matter.  Non-examination of the watchman of Ghanshyam  

Industrial Estate,  or omission of factor regarding electricity being  

not mentioned in the panchnama, or non-collection of broken lock,  

are the omissions of trivial nature, and do not warrant any undue  

importance for doubting the evidence of recovery.  

24. Law does not require the witness to corroborate the evidence  

of an independent witness.  Thus, the evidence of Mohamed Ayub  

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Mohamed  Umar  (PW-72)  duly  corroborated  by  the  

contemporaneous panchnama  is trustworthy.  

25. As  the  appellant  (A-20)  made  a  statement  leading  to  the  

discovery of AK-56 assault rifle  and two magazines  having kept  

in his workshop and the same had been found concealed on the  

loft,   he  cannot  escape  from  the  liability  of   possessing  and  

concealing of the same, thus liable to be punished under Section 5  

TADA.  We see no reason to interfere with the conclusion drawn  

by  the  learned  Designated  Court.  The  appeal  is  accordingly  

dismissed.

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CRIMINAL APPEAL NO.912  OF 2007

Aziz Ahmed Md. Ahmed Shaikh               …Appellant

Versus

State of Maharashtra        … Respondent                      

26. This  appeal  has been preferred against  the judgments and  

orders dated 11.10.2006 and 31.5.2007, passed by Special Judge of  

the Designated Court under the TADA for Bombay Blast, Greater  

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

appellant had been found guilty under Section 5 TADA and on that  

count, he was sentenced to suffer RI for 5 years, and ordered to pay  

a fine of Rs.25,000/-, and in default of payment of fine, to suffer  

further RI for 6 months. He (A-21) was further convicted under  

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

Act, but no separate sentence was awarded for the same.  

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

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

charged  for  attending  conspiratorial  meetings  at  Dubai  where  

criminal  conspiracy  was  discussed  for  distributing  arms  and  

ammunition to  co-conspirators  and for  providing funds to  them.  

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Thus, he (A-21) was charged under Sections 3(3) and (4) TADA.  

Further,  he  (A-21)  was  charged  with  unauthorisedly  being  in  

possession of one U.S. Carbine 0.300 with three magazines and 28  

cartridges in the notified area under TADA, between January 1993  

and  5th April,  1993,  and  thus,  charged  under  Sections  5  and  6  

TADA, and further under the provisions of Sections 3 and 7 read  

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

B. After the trial, the appellant (A-21) stood acquitted of all the  

charges except charges under Section 5 TADA and under the Arms  

Act.   

Hence, this appeal.  

28. Shri  Mushtaq  Ahmad,  learned  counsel  appearing  for  the  

appellant  has  submitted  that  the  appellant  had  wrongly  been  

involved in the offence and convicted, though there is no sufficient  

evidence  on  record,  to  involve  the  appellant  in  the  crime.  The  

evidence  particularly the confessional  statement  of  the  appellant  

and the depositions of other witnesses particularly, Bhaskar Babu  

Rao  Jadhav  (PW-57),  Dayandeo  Sonaji  Geete  (PW-320),  Vijay  

Meru (PW-561), and Shivajirao Kondiram Babar (PW-683) etc. are  

not  worth  reliance.  The  confessional  statement  of  the  appellant  

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cannot  be  relied  upon,  as  it  was  not  made  voluntarily  and  

truthfully. The appeal deserves to be allowed.  

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

State has submitted that the appellant was a close associate of Tiger  

Memon  (AA).  He  was  fully  involved  in  the  entire  episode  

including the conspiracy. He has wrongly been acquitted for the  

said charge. Thus, no interference is called for. The appeal is liable  

to be dismissed.  

30. We have heard learned counsel for the parties and perused  

the record.  

31. Evidence against the appellant (A-21):

(a) Confessional statement of the appellant (A-21)

(b) Deposition of Bhaskar Babu Rao Jadhav (PW-57)

(c) Deposition of Dayandeo Sonaji Geete (PW-320)

(d) Deposition of Vijay Meru (PW-561)

(e) Deposition of Shivajirao Kondiram Babar (PW-683)   

Confessional Statement of  appellant (A-21):

32. His  (A-21)  confessional  statement  had  been  recorded,  

however, the same had been discarded by the Designated Court,  

thus it cannot be considered.  The evidence against the appellant  

(A-21) remains the recovery of the aforesaid arms and ammunition.  

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In fact, an FIR had been registered on 5.4.1993 at 6.10 p.m. that the  

appellant  (A-21) was  found  in  possession  of  a  Carbine  of  30  

Caliber of U.S. make, three magazines and 28 cartridges without  

holding a fire arms license.  It was further revealed that on that day,  

the police got information that the appellant  (A-21)  who was a  

resident  of  Pydhonie,  Mumbai  was  scheduled  to  come  near  a  

mosque  opposite  Pydhonie  Police  Station  to  acquire  arms  and  

ammunition of  foreign make.   On that  information the trap was  

arranged near the Pydhonie Police Station. At about 1.30 p.m. the  

trap party received the pre-decided signal, on which the appellant  

(A-21) was searched, however he was not carrying any arms and  

ammunition with him.  He was brought to the DCB, CID office and  

during  interrogation  he  expressed  his  willingness  to  make  a  

voluntary statement.  Therefore, two panchas were called from the  

nearby area and in their presence, the appellant  (A-21) disclosed  

that he had acquired two Carbines of foreign make and some arms  

and ammunition from one Mujahidan and one of the said Carbine  

had been concealed at Naryalwadi, Mazgaon.  The appellant  (A-

21) led  the  police  party  and  Panchas  to   Naryalwadi  Muslim  

Cemetery (Kabaristan), Mazgaon and from the said graveyard he  

took  out  one  gunny  bag  duly  tied  with  a  rope.  It  had  been  

concealed in thickly grown trees and shrubs.  On being examined,  

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Page 24

one  single  barrel  Carbine,  28  cartridges  and  3  magazines  were  

found. Panchnamas have made for his disclosure statement as well  

as for recovery of the said articles.

Deposition of Bhaskar Babu Rao Jadhav (PW-57):

33. He  is  a  panch  witness.  He  supported  the  case  of  the  

prosecution and proved the disclosure statement of the appellant  

(A-21) as well as the recovery made at his behest.  He gave a full  

description  of  how  the  appellant  (A-21) made  the  disclosure  

statement and how the recoveries were made.  It corroborates the  

version given in the FIR.  However, in his cross-examination, he  

(PW-57)  stated  that  he  (PW-57)  had  prepared  the  notes  for  

deposing in the court.  He had given full details of the incident of  

5.4.1993.  In cross-examination he had admitted that he had also  

acted as a panch witness in 3 more cases.   

Deposition of Dayandeo Sonaji Geete (PW-320):

34. His  deposition  revealed  that  he  had  accompanied  the  

appellant  (A-21) at  the  time  of  recovery  alongwith  others.  He  

admitted in his cross-examination that he himself had not made any  

entry in the Station Diary regarding the information received by  

Senior  P.I.  Shri  Kumbhar  about  the  appellant  (A-21).   He  has  

further deposed that he could not remember the manner in which  

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the  panch  witness  arrived  in  the  office.   The  said  panch  was  

brought by the police havaldar.   The appellant  (A-21)  had been  

detained in  the  office  of  DCB,  CID under  suspicion due to  the  

receipt of information that he was to be at Pydhonie for acquiring  

arms.  He also deposed that the office of the Bombay Municipal  

Corporation was inside the Naryalwadi Kabristan from where the  

recovery had been made at the instance of the appellant (A-21).  He  

further  proved the recovery  and denied  the  suggestions  that  the  

appellant  (A-21)  did not make any disclosure statement nor any  

recovery  had  been  made  at  his  behest.   He  has  also  identified  

appellant (A-21) in the court.   

35.       The deposition of  Dayandeo Sonaji Geete (PW-320) has  

been  fully  corroborated  by  another  police  official  Vijay  Meru  

(PW-561) in all respects. However, he has admitted that he had not  

made  any  entry  in  the  Station  Diary  regarding  the  information  

received by Senior P.I. Shri Kumbhar, nor he was aware how the  

panch  witness  arrived  and  who  was  the  police  havaldar  who  

brought the panch witnesses.  However, he (PW-561) deposed that  

he had detained the appellant (A-21) on information that he was to  

be at Pydhonie for acquiring arms.   Appellant (A-21) came there at  

about 1.30 p.m. and on getting the signal, the police party pounced  

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Page 26

upon him and apprehended him.  Appellant (A-21) was searched  

but he was not carrying any weapon, however, one Ceiko watch,  

his  driving licence,  labour  card  bearing his  photograph of  Arab  

Emirates and some Dirhams and a silver ring were found with him.  

The  inventory  of  the  said  articles  was  prepared  and  they  were  

seized.  The currency in Dirhams was of the value of Rs. 13 to 14  

thousand Indian rupees.  He was interrogated by A.C.P. Shri Babar  

(PW-683)  and  Senior  P.I.  Shri  Kumbhar.  It  was  during  his  

interrogation that appellant (A-21) expressed his desire to make the  

voluntary statement regarding fire arms.  Thus, two panches were  

called.  The  suspect  was  introduced  to  the  panches.   The  

memorandum panchnama was prepared in respect of his disclosure  

statement.   It  was  signed  by  panch  witnesses   and,  thus,  he  

supported  the  recovery  of  the  articles  as  narrated  by  the  other  

witnesses.   He had proved the complaint as well as the proforma  

FIR on the basis of the said complaint. PW.561 registered the said  

offence as LAC No. 18 of 1993 against the appellant (A-21) for the  

offences punishable under Sections 3 and 7 read with Section 25 of  

the Arms Act.  Though he was competent to answer as to whether  

the panch witnesses had been stock witnesses or whether there was  

any  discrepancy  in  drawing  the  memorandum  panchnama  but  

defence did not ask any question during his cross-examination.  He  

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(PW-561) identified the appellant (A-21) on 24.4.1998 in the court  

and he has denied the  suggestion  made by the defence  that  the  

appellant (A-21) had not made any disclosure statement, nor the  

recovery of arms had been made on his disclosure statement.  

Deposition of Shivajirao Kondiram Babar, ACP (PW-683):

36. In  his  deposition,  he  revealed  that  he  had  received  the  

information about appellant (A-21) that he would get the weapons  

near a mosque opposite police station Pydhonie. He had received  

the information from a secret source on telephone, he recorded the  

same and passed on the same to the senior officers.  He deposed  

that on 5.4.1993 while he was in his office at Crawford Market,  he  

had received the information from his source on telephone to the  

effect that appellant (A-21) involved in Bombay blast case was in  

possession  of  fire  arms  and  would  be  available  at  Pydhonie.  

Immediately thereafter,  he formed a team of police officers and  

staff and went to the Pydhonie and arrested the appellant (A-21),  

brought him to the office of DCB, CID at Crawford Market and he  

(A-21)  was  interrogated.  This  witness  further  supported  the  

prosecution  case  that  he  made  a  desire  to  make  confession  

voluntarily etc. etc.  

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37. The recovered material was sent for FSL, and the report Ext.  

1940-A was received. According to which US Carbine gun and 28  

cartridges sent for FSL were examined. The carbine gun was found  

in working condition, and it was capable of chambering and firing  

the  cartridges  recovered  in  that  offence.   So,  the  report  was  

positive.  

38. The  appellant  (A-21)  made  a  complaint  before  the  

Designated Court, and the court directed his medical examination.  

He was examined and again sent on police remand.  

39. After  appreciating  the  entire  evidence,  the  learned  

Designated Court  came to the conclusion as under:

“Since  criminal  conspiracies  are  hatched  in   secrecy and it is extremely difficult to collect the   direct  evidence  about  the  same  the  established   principles of law indicate that the standard of a   proof  requiring  such  type  of  cases  is  loosened,   unnecessary hard standards regarding the identity   of a particular person can’t be expected.. …Thus,   considering  in  proper  perspective  all  the  said   evidence, no other conclusion will emerge of A-21   having committed all the offences for which he is   charged  with  on  the  account  of  commission  of   overt acts, but the same will lead any prudent man   to  the  legitimate  conclusion  of  A-21  having   committed the aforesaid acts for the purposes of   furthering the object of conspiracy.”

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40. In view of above, the Designated Court found him guilty and  

imposed the punishment as referred to hereinabove.  We find no  

reason to interfere with the directions of the Designated Court. The  

appeal is accordingly dismissed.

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CRIMINAL APPEAL NO. 1030  OF 2012

State of Maharashtra Through CBI                        …Appellant

Versus

Ahmad Shah Khan @ Salim Durani  & Anr.           … Respondents

41. This appeal  has been preferred against  the judgments and  

orders  dated   11.10.2006  and  31.5.2007,  passed  by  the  Special  

Judge of Designated Court under the TADA, in the Bombay Blast  

Case No.1 of 1993, by which the respondents (A-20 and  A-21)  

had been convicted under Section 3(3) TADA, and acquitted of the  

main charge of conspiracy.  

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

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

respondents were additionally charged under Section 3(3) TADA  

for facilitating the commission of terrorist activities etc., as they  

had  agreed  to  send  persons  for  receiving  training  in  arms,  

ammunition  and  explosives  and  making  arrangements  by  

harbouring  and  concealing  their  conspirators/terrorists  for  

consideration of money from Tiger Memon (AA). They had further  

been charged with receiving and keeping in possession of one AK-

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56 rifle and two empty magazines with intention to use and commit  

terrorist acts.  Further, under Section 5 TADA, for possessing the  

said AK-56 rifle; under Section 6 of TADA, in respect of the same  

AK-56 rifle; and lastly, for harbouring and concealing co-accused  

Javed Chikna, Yakoob Yeda and others terrorists/co-conspirators at  

Tonk, Rajasthan after the Bombay blast on 12th March, 1993.  

B. Both the respondents (A-20 and A-21) had been found guilty  

for the offence punishable under Section 5 TADA, and awarded the  

punishment of five years, and ordered to pay a fine of Rs.25,000/-  

and,  in default  of  payment of  fine,  to suffer  further  R.I.  for  six  

months.  But acquitted for the charge of conspiracy.  

Hence, this appeal.  

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

appellant, has submitted that in spite of the ample evidence against  

the said respondents (A-20 and  A-21) in view of their involvement  

in  conspiracy,  the  court  below  committed  the  grave  error  in  

discarding the same.   The evidence requires total re-appreciation  

and the confessional statements of the respondents  (A-20 and  A-

21)  and  other  co-accused  have  to  be  taken  into  consideration.  

Therefore, the appeal deserves to be allowed.  

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44. On the other  hand, Shri Mushtaq Ahmad, learned counsel  

appearing for the respondents (A-20 and  A-21), has submitted that  

their  confessional  statements  have  rightly been discarded as  the  

same  had  been  recorded  in  utter  disregard  to  the  statutory  

provisions.  The appeal lacks merit and is liable to be dismissed.  

45. We have considered rival submissions made by the counsel  

for the parties and perused the records.  

46. The confessional statements of Ahmad Shah Khan @ Salim  

Durani (A-20),  Shaikh Aziz Ahmed (A-21), Moiddin Abdul Kadar  

Cheruvattam (A-48) and Ismail Abbas Patel (A-80) had been relied  

upon by the prosecution.  The same stood discarded completely by  

the learned Special Judge on the ground that all the confessional  

statements  had  been  recorded  by  the  Police  officer  in  utter  

disregard to the mandatory provisions of Section 15 TADA and  

Rule 15 of TADA  Rules, 1987.  The police officer failed to inform  

the  said  accused  persons  while  recording  their  respective  

statements  that  they  were  not  bound  to  make  confessional  

statement  and  further  failed  to  warn  that,  in  case,  they  made  

statements,  the  same  would  be  used  as  evidence  against  them.  

More  so,  the  required  certificate  was  not  attached  to  the  said  

statements.  

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47. This Court has laid down parameters for interference against  

the order of acquittal time and again.  The appellate court should  

not ordinarily set aside a judgment of acquittal in a case where two  

views are possible, though the view of the appellate court may be  

the more probable one. While dealing with a judgment of acquittal,  

the appellate court has to consider the entire evidence on record, so  

as to arrive at a finding as to whether the views of the trial court  

were perverse or  otherwise unsustainable.  The appellate court is  

entitled to consider whether in arriving at a finding of fact, the trial  

court  had  failed  to  take  into  consideration  admissible  evidence  

and/or had taken into consideration the evidence brought on record  

contrary to law. Similarly, wrong placing of burden of proof may  

also  be  a  subject-matter  of  scrutiny  by  the  appellate  court.  In  

exceptional cases where there are compelling circumstances, and  

the judgment under appeal is found to be perverse, the appellate  

court can interfere with the order of acquittal. The appellate court  

should bear in mind the presumption of innocence of the accused  

and further that the trial court's acquittal bolsters the presumption  

of his innocence. Interference in a routine manner where the other  

view is possible should be avoided, unless there are good reasons  

for interference.  The findings of fact recorded by a court can be  

held to be perverse if the findings have been arrived at by ignoring  

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or  excluding  relevant  material  or  by  taking  into  consideration  

irrelevant/inadmissible material. The finding may also be said to be  

perverse if it is “against the weight of evidence”, or if the finding  

so  outrageously  defies  logic  as  to  suffer  from  the  vice  of  

irrationality.

48. In view of the fact that no legal evidence which could be  

relied upon by the prosecution is available on record, we do not  

find any fault with the impugned judgment and order.  The appeal  

lacks merit and is liable to be dismissed.  More so, the respondents  

(A-20 and A-21) have filed appeals, as referred to hereinabove, and  

they have served 4 years of sentence and deposited the fine.    

The appeal stands dismissed.  

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   CRIMINAL APPEAL NO. 13l1 OF 2007

Yusuf Khan @ Kayum Kasam Khan               ... Appellant  

Versus

State of Maharashtra (through CBI, STF)                ... Respondent  

AND  

CRIMINAL APPEAL NO. 417  OF 2011

State of Maharashtra          …Appellant

Versus

Yousaf Khan Kasam           … Respondent                      

Criminal Appeal No. 1311 of 2007

49.       This appeal has been preferred against the judgments and  

orders  dated  11.10.2006  and  31.5.2007,  passed  by  the  learned  

Special  Judge of  the Designated Court  under  the TADA, in  the  

Bombay Blast  Case No.1/93.  The appellant  (A-31) was charged  

with general charge of conspiracy, and in addition thereto, he was  

further charged for participating in landing and transportation of  

the arms, ammunition and explosives smuggled into India by the  

conspirators  and  co-accused  at  Shekhadi  and  further  for  

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Page 36

transporting the RDX explosives  in  his  motor  tempo No.  MCU  

4409, which was part of the said consignment and unloaded the  

same in the godown of co-accused Liyakat Ali Habib Khan (A-85)  

at  MIDC,  Thane.  The  appellant  (A-31)  was  convicted  under  

Section  3(3)  TADA,  and  sentenced  for  5  years  rigorous  

imprisonment, alongwith a fine of Rs. 25,000/-, and in default of  

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

Hence, this appeal.  

50. Ms. Farhana Shah, learned counsel appearing on behalf of  

the  appellant,  has  submitted  that  the  appellant  (A-31)  has  been  

wrongly convicted  for  the offences  under  TADA and the  Arms  

Act.  The  confessional statements of the co-accused could not be  

relied upon for the reason as it has been obtained by coercion and it  

could not be held to be useful and truthful and, therefore, no worth  

reliance.  The panch witnesses  could  not  be  relied  upon as  they  

were not the natural witnesses i.e. resident of the said area.  Thus,  

appeal deserves to be allowed.  

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

appearing  on  behalf  of  the  State,  has  opposed  the  appeal  

contending  that  the  stand  fully  established  by  the  evidence  on  

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record,  particularly,  because  of  the  confessional  statements  of  

appellant (A-31), A-64, A-128 and further stand corroborated by  

the evidence of PW-2, PW-62 and PW-604.  Thus, no interference  

is called for.  

52 We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

53. Evidence against the appellant (A-31) :

(a) Confessional statement of Nasir Abdul Kader Kewal (A-64)

(b) Confessional statement of Shahnawaz Khan (A-128)

(c) Deposition of Usman Jan Khan (PW-2)

(d) Deposition of Padmakar Krishna Bhonsle (PW-62)

(e) Deposition of Ajit Surve (PW-604)

Confessional statement of Nasir Abdul Kader Kewal (A-64):  

54. In his confessional statement, he (A-64) has revealed that he  

had  been  associated  in  smuggling  activities  and  had  been  

participating in landing and transportation alongwith co-accused.  

He  had  earlier  worked  in  Saudi  Arabia  and  after  coming  back  

settled in Bombay. His father-in-law Gulam Dastgir used to run the  

business of Matka at Bandra and thus, he (A-64) also joined the  

said  business.  Subsequently,  he  came  in  association  of  the  

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smugglers and started helping them in landing and transportation.  

He  participated  in  landing and  transportation  from Shekhadi  on  

7.2.1993 and said that the associates of Tiger Memon (AA) were  

present  including  appellant  (A-3l).  At  the  instance  of  Tiger  

Memon, the bags of arms and explosives brought from the trawler  

were loaded in a tempo driven by appellant (A-31).  

Confessional statement of Shahnawaz Khan (A-128):

55.    Confessional statement of Shahnawaz Khan (A-128) revealed  

that he participated in landing on 7.2.1993. He (A-128) alongwith  

co-accused  brought  the  smuggled  goods  at  Seashore  and  they  

found that two tempos were already parked there. One tempo was  

being driven by appellant (A-3l). The smuggled goods were being  

loaded in both the tempos. Tiger Memon (AA), Javed Chikna (AA)  

and Yeda Yakoob (AA) opened the sacks.  The accused (A-128)  

saw  that  it  contained  rifles,  hand-grenades  and  bags  containing  

black coloured powder in it. Bullets were also there. Subsequently,  

those tempos were unloaded at a building with a tower. The goods  

were  reloaded  in  the  cavity  of  Commander  jeeps.   The  said  

vehicles  (Jeeps)  left  for  Bombay.  One  tempo  though  empty  

followed the jeep.  

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56.   Usman Jan Khan (PW-2) identified the appellant (A-3l) in  

the court. Usman Jan Khan (PW-2) deposed that appellant (A-3l)  

participated in transportation of smuggled articles. He deposed that  

on the relevant date they came out of the hotel after having the  

meal and noticed that Javed Chikna (AA) and Yeda Yakoob (AA),  

were  standing  near  the  white  coloured  tempo which  was  being  

driven by appellant  (A-3l).  Tiger  Memon(AA)  told Usman Jan  

Khan (PW-2) to take a seat in the said tempo with the appellant (A-

31). He (PW-2) sat in the tempo and they followed Tiger Memon  

(AA) and reached Shekhadi Coast at 9 p.m. The smuggled goods  

had already arrived at the Coast. The same were wrapped in gunny  

bags.  On the instruction of Tiger Memon (AA), the goods were  

loaded  in  the  two  tempos,  one  of  them  was  being  driven  by  

appellant  (A-31). The goods were brought by the said tempo to  

Wangni Tower and were unloaded there. It was at Wangni Tower  

that the goods were opened and the witness could see AK-56 rifles,  

its rounds, handgrenades, pistols, magazines and RDX. They were  

reloaded in the cavity of the jeeps parked there.  

57.       Padmakar Krishna Bhonsle (PW-62) is the panch witness  

of the recovery of the vehicle and identified the vehicle recovered  

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by Police Inspector,  Anil Prabhakar Mahabole (PW-506). It  was  

recovered at the disclosure statement of the appellant (A-31).  

 58.    Ajit Shivram Surve (PW-604), the Police Officer attached  

with DCB, CID who had been sent to get the samples prepared on  

30.l1.1993 by P.I. Shri Pharande, and he corroborated the incident  

of collection of samples as described by Asit Binod Ghorai (PW-

602).  He  also  named  3  persons  who  collected  the  samples  as  

Kulkarni, Malve and Surve. He (PW-604) further deposed that he  

prepared  the  panchnama  which  was  duly  signed  by  the  panch  

witnesses.  

 59.      One application under Section 457 of  Code of  Criminal  

Procedure,  1973  was  filed  by  the  appellant  (A-31)  before  the  

Designated  Court  for  release  of  the  tempo  and  the  same  was  

allowed.   However,  the  court  passed  the  order  that  the  vehicle  

should  be  thoroughly  examined  by  experts  as  to  whether  it  

contained any traces of the RDX. It was in view thereof, 3 experts  

took  samples  on  30.11.1993  and  the  report  dated  12.1.1994  

detected traces of RDX. This was corroborated by panch witness,  

Asit Binod Ghorai (PW-602).  

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60. After conclusion of the trial, the learned Special Judge came  

to  the  conclusion  that  considering  the  confessions  of  the  co-

accused,   Nasir  (A-64)  and Shahnawaz  (A-128),  as  well  as  the  

statement made by Usman (PW-2) there can be no conclusion other  

than the fact that the appellant (A-31) was involved in the Shekhadi  

landing and the transportation operation.  

61. After  going  through  the  evidence  on  record  i.e.  the  

confession  of  the  co-accused  (A-64  and  A-128)  as  well  as  the  

deposition of the various prosecution witnesses, we find no merit in  

this appeal.  Therefore, it is accordingly, dismissed.  

Criminal Appeal No. 417 of 2011

62. This  appeal  has  been  preferred  against  the  judgment  and  

order dated 2.8.2007 passed by Special Judge of the Designated  

Court under the TADA for Bombay Blast Case No.1 of 1993. The  

charge against the respondent (A-31) had been framed mainly for  

conspiracy.  He was further charged with abetting and knowingly  

facilitating the commission of terrorist activities during the period  

of December, 1992 to April, 1993 by involving himself in landing  

and transportation of arms, ammunition and explosives smuggled  

into  India  by  his  co-conspirators  and  the  role  played  by  the  

respondent  (A-31)  had  been,  transporting  the  said  explosives  

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landed  at  Shekhadi  by  his  motor  tempo  No.  MCU  4409  from  

Alibagh  to  Thane,  which  was  unloaded  in  the  godown  of  co-

accused Liyakat Khan at MIDC.   

63. After  the  trial,  the  said  respondent  (A-31)  had  been  

convicted  for  the  main  charge  under  Section  3(3)  TADA  for  

transportation of the said explosives and awarded punishment of  

five years with a fine of Rs.25,000/- but has been acquitted of the  

charge of conspiracy.  

Hence, this appeal.  

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

appellant has submitted that in addition to the general charge of  

conspiracy, the respondent (A-31) had been charged for assisting  

Tiger  Memon  (AA)  and  his  associates  in  smuggling  of  arms,  

ammunition,  handgrenades  and  explosives  and  its  landing  and  

transportation from Shekhadi  on 7.2.1993.   The respondent  was  

present  at the instance of Tiger Memon and had transported the  

said contraband in his vehicle.  Therefore, as the respondent had  

been aware of the nature of the contraband, he cannot escape the  

liability of charge of conspiracy.  Thus, the appeal deserves to be  

allowed.  

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65. Mr.  Mushtaq  Ahmad,  learned  counsel  appearing  for  the  

respondent (A-31) has submitted that he is merely a transporter and  

not an associate of Tiger Memon, so he could not be involved in  

the  charge  of  conspiracy.   Thus,  the  appeal  is  liable  to  be  

dismissed.  

66. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the evidence on record.  

67. The learned Special Judge dealt with the issue and came to  

the conclusion that in spite of the fact that the respondent (A-31)  

transported the contraband in his tempo and took the same to a far  

distance  but  there  was  nothing  on  record  to  show  that  he  had  

knowledge of the kinds of goods transported in his tempo.  

68. The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

69. From the evidence on record, it  becomes clear that  Yusuf  

Khan  Kasam  (A-31)  had  participated  in  landing  operation  of  

contraband goods at Shekhadi as he was one of the persons who  

accompanied Tiger  Memon and others  and he had also been to  

Wangni Tower alongwith other associates and contraband material  

were loaded in tempo.  The tempo was taken by him alongwith  

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absconding  accused  to  Mumbra  as  instructed  by  Tiger  Memon  

(AA).  This version is duly supported/corroborated by Shah Nawaz  

Khan (A-128)  (Ex. 1569-A) and by the evidence of Usman (PW-

2).  However, there is nothing on record to show that he was aware  

as  of  what  kinds  of  contraband  were  being  transported  in  his  

tempo.   

70. We are of the considered opinion that no further interference  

is required and appeal lacks merit and is, accordingly, dismissed.  

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CRIMINAL APPEAL NO.  1610  OF 2011

Uttam Shantaram Potdar               …Appellant

Versus

State of Maharashtra        … Respondent                       

AND

CRIMINAL APPEAL NO.398  OF 2011

State of Maharashtra                  …Appellant

Versus

Uttam Shantaram Potdar              … Respondent

71. Criminal Appeal No.1610 of 2011 has been preferred against  

the judgment and order dated 23.5.2007 passed by Special Judge of  

the Designated Court under the TADA, for Bombay Blast, Greater  

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

appellant has been convicted under Sections 3(3) and 6  TADA.  

72. Criminal Appeal No.398 of 2011 has been filed by the State  

against the order dated 2.8.2007 by which A-30 stood acquitted of  

the first charge of larger conspiracy.

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

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

(A-30) was charged for overt acts by abetting and knowingly and  

intentionally  facilitating  the  smuggling  the  landing  of  arms,  

ammunition,  hand  grenades  and  explosives  in  India  at  Dighi,  

Mhasla, District Raigad on 9.1.1993. This was done by providing  

his  truck  No.  MH-06-5533  and  mobilizing  men,  material  and  

resources  in  connivance  with  the  customs  officers  and  police  

officials by bribing them and facilitating the safe movements of  

arms, ammunition and explosives by piloting the motor truck, thus  

the  offences  punishable  under  Section  3(3)  TADA  and  under  

Section 6  TADA have been committed.  

B. Further, the provisions of the Arms Act, the Arms Rules, the  

Explosive  Act,  1884,  Explosive  Substance  Act,  1908  and  the  

Explosive Rules,  have also been contravened,  by facilitating the  

smuggling, landing and transportation of arms etc.  

C. After  the  conclusion  of  the  trial,  appellant  (A-30)  was  

acquitted  of  the  umbrella  charge of  conspiracy including of  the  

charge under Section 120B IPC etc. However, he was convicted for  

charges under Sections 3(3) and 6 TADA.  He has been awarded a  

sentence  to  undergo  R.I.  for  10  years  alongwith  a  fine  of  

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

for  one  year  under  Section  3(3),  and  to  undergo  14  years  R.I.  

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alongwith a fine of rupees one lakh and in default of payment of  

fine, to further suffer RI for three years under Section 6 TADA.  

74. It  is  pertinent  to  mention  that  the  appellant  (A-30)  has  

already served 14 years imprisonment, and has also deposited the  

fine. However, the appeal has been preferred by him only to get an  

acquittal, so as to remove the stigma attached to being convicted  

for  offences  as  mentioned hereinabove.  The State  has also filed  

appeal against his acquittal of the first charge of conspiracy.  

75. Shri C.U. Singh, learned counsel appearing for the appellant  

has submitted that the appellant has wrongly been enroped in the  

crime.  The  evidence  on  record  falls  short  to  prove  the  charges  

against him. The confessional statements are not admissible as had  

not  been  recorded  in  accordance  with  law.  Thus,  the  appeal  

deserves to be allowed, and the stigma of the appellant is  to be  

removed.  

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

State has opposed the appeal contending that the appellant was a  

close associate of Tiger Memon (AA) and his associates. He was  

involved not only in landing and transportation, but in the larger  

conspiracy. Thus, the State has filed appeal against the order of his  

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acquittal on the charge of conspiracy. Therefore, the appeal filed  

by the appellant is liable to be dismissed, and appeal filed by the  

State deserves to be allowed.  

77. We have heard learned counsel for the parties and perused  

the record.  

78. Evidence against the Appellant (A-30):

(a)      Confessional statement of  appellant (A-30)

(b) Confessional statement of Janardhan Pandurang Gambas (A- 81)

(c) Confessional statement of Jaywant Keshav Gurav (A-82)

(d) Confessional statement of Mohd. Sultan Sayyed (A-90)

(e) Confessional statement of S.S. Talwadekar (A-113)

(f) Confessional  statement  of  Mohd.  Kasam  Lajpuria  @Mechanic Chacha (A-136)

(g) Confessional  statement  of  Jamir  Sayyed Ismail  Kadri  (A- 133)

(h) Confessional statement of Salim Kutta (A-134)

(i) Confessional statement of Faki Ali Faki Ahmed (A-74)

(j) Deposition of Dilip Pansare (PW-97)

(k) Deposition of Vyankatesh Hirba (PW-588)

(l) Deposition of Dinesh Nakti (PW-95)

Confessional statement of appellant (A-30):

79. The  evidence  against  the  appellant  (A-30)  is  his  own  

confession  made  on  12th/15th of  July,  1993.  He  has  stated  

throughout that he was a landing agent and involved in smuggling.  

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However,  he had no knowledge that  arms were being smuggled  

and he participated in the same, taking it to be smuggling of silver  

only.  The confessional statements of co-accused do not speak of  

the knowledge of the appellant (A-30) regarding the smuggling of  

arms and they too, have only deposed about smuggling of silver.  

In  view of  the  discussion  in  Criminal  Appeal  no.1728 of  

2007, the date of the recording of the confession has no bearing so  

long as the accused are being tried for the same crime in the same  

trial.  After the amendment, confessional statement of co-accused  

Jamir  Sayyed  Ismail  Kadri  (A-133),  Salim  Kutta  (A-134)  and  

Mechanic Chacha (A-136) had been recorded. Jamir Kadri (A-133)  

stated in his  confession on the basis  of  hearsay that  his  brother  

Shabbir had told him that arms would be smuggled into the city,  

and that the same was also within the knowledge of the appellant  

(A-30).  

His  confessional  statement  was  recorded  by  A.K.  

Chandgude,  Deputy S.P (PW-670)  wherein  the  appellant  (A-30)  

has stated that he was well acquainted with other smugglers like  

Mohd.  Dossa  (AA) and Mechanic  Chacha  (A-136),  and he  had  

been acting as a  landing agent  in smuggling activities  for  these  

smugglers,  for  a  long  time.  He  (A-30)  had  also  participated  

alongwith  the  other  co-accused   like  Salim  Kutta  (A-134)  and  

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Mechanic Chacha (A-136) in the smuggling of contraband and in  

providing landing and transportation facilities on 3.12.1992.  

On  4.12.1992,  he  was  contacted  by  Assistant  Collector  

(Customs)  R.K.  Singh  (A-102)  through  a  Customs  Sepoy.  On  

reaching  there  at  8.00  pm,  R  .K.  Singh,  Assistant  Collector,  

Custom  (A-102)  called  him  in  the  cabin  and  asked  about  the  

landing that had been made on the previous day upon replying he  

was told to wait with Custom Inspector Gurav (A-82). He (A-30)  

went to Mohd. Dossa on 5.12.1992 and explained to him , and to  

Mechanic Chacha (A-136), the entire incident.  Mechanic Chacha  

(A-136) gave him (A-30), some money to be paid to  the Mhasla  

Custom Staff,  the Shrivardhan Custom Staff,  the Murud Custom  

Staff and also to R.K. Singh (A-102).  On the same day he (A-30)  

handed over the money to some of them.   

 Subsequently, it was revealed that the rates that were to be  

paid  to  the  police  officers  as  well  as  the  customs  officers  per  

landing were fixed, and were also revised from time to time, and  

the appellant (A-30) had been very much involved in making  

the payment.   

Therefore, it is clear that he (A-30) enjoyed a higher status in  

the  hierarchy  of  the  gang  of  smugglers,  and  that  he  had  been  

assigned an important role of negotiating with customs officers and  

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police officers, to remove any hindrance in the said smuggling. It is  

also clear that payments were made through him (A-30).   

The  appellant  (A-30)  confessed,  that  on  9.1.1993  he,  

alongwith co-accused Salim Kutta (A-134) and Mechanic Chacha  

(A-136) had participated in the landing of smuggled goods  and  

when they were coming to Dighi Jetty, on the way he  had also met  

Gurav (A-82), who was driving his jeep.  Thereafter, their vehicles  

were  intercepted  by  Patil  (A-116)  an  Inspector,  near  Gondghar  

Phata. In order to negotiate a safe passage for the smuggled goods,  

Mechanic Chacha (A-136)  offered him a sum of Rs.10 lakhs, and  

when they were asked about  the contents of  the wooden boxes,  

Mechanic Chacha (A-136)  stated that the same contained watches.  

On the said day, they had no cash and, therefore, Mechanic Chacha  

(A-136)  took out five silver bricks from the first truck and gave  

them to Shri Patil,  SI of Shrivardhan. The appellant (A-30) drove  

Gurav’s jeep (A-82) and came to Kanghar.  There they shifted 170  

bricks in the cavities of two trucks from Bombay. After loading the  

smuggled  goods  in  the  truck,  the  appellant  went  to  Shabbir’s  

residence  alongwith  Salim Kutta  (A-134),  Feroz  and  the  driver.  

They removed 80 bricks from the cavity of  the first  truck from  

Bombay, and placed them in this truck.  The appellant (A-30) left a  

message at the residence of Patil  (A-116), stating that he would  

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come with money on the night of the 10th of the month.  Thus, he  

(A-30) subsequently met the said S.I. and it was decided that he  

would pay a sum of Rs.5 lakhs to the Havaldars and Rs.2 lakhs to  

the SI separately, and the said amount was paid by the appellant  

(A-30).   

Further,  in his confessional  statement he has revealed that  

the truck bearing No. MH-06-5533 which was used on 9.1.1993  

did not belong to him.  One Dilip Hegiste was the registered owner  

of the said vehicle.  

Thus,  it  is  clear  that  in  his  confessional  statement,  the  

appellant (A-30) does not say anything to the effect that he had no  

knowledge with respect to the smuggled arms.  

Confessional statement of Janardhan Pandurang Gambas (A- 81):  

80. In his confessional statement he has revealed the presence of  

the  appellant  (A-30)  and  also  has  deposed  about  his  (A-30)  

participation  in  the  landing  and  transportation  of  the  smuggled  

goods. However, the goods were silver and gold, and it was the  

appellant (A-30) who had taken the said witness for the landing.  

He has stated that in addition to the silver and gold and rods kept in  

the gunny bags, there were 30 black military coloured boxes which  

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were  unloaded  from the  trawler  and  Mechanic  Chacha  (A-136)  

cautioned the labourer to handle the same with care, as the goods  

were made of glass.  

Confessional statement of   Jaywant Keshav Gurav (A-82)  :  

81.   He was working in the Customs Department at Mahad, and  

it was his job to prevent illegal smuggling along the sea coast and  

to nab the smugglers by gathering secret information against them,  

and further, to register cases against the smugglers. He (A-82) has  

stated that  he had been helping smugglers  by taking bribes and  

facilitating  their  landing  and  also  the  transportation  of  the  

smuggled goods. He had a settlement with Rahim Laundriwala that  

he  would  be  paid  Rs.1,60,000/-  for  silver  landing  and  that  the  

witness  would  be  informed  of  such  landings  in  advance.  The  

appellant (A-30) had met him in June 1992  and told the witness  

that he was a landing agent working at Dighi Jetty and that he had  

informed him (A-82) that there would be landing at Dighi Jetty of  

silver,  by Mohd. Dossa.  The smuggled goods would come from  

Dubai  and  he  (A-82)  would  be  paid  Rs.65,000/-  for  the  said  

landing and appellant (A-30) had paid him this money after passing  

the  said  smuggled  goods.  This  witness  has  corroborated  the  

confessional statement of the appellant (A-30).

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In respect of the incident dated 3.12.1992, i.e. his meeting  

with R.K. Singh, Assistant Collector, Customs (A-102) where he  

had bargained for a higher amount, as R.K. Singh (A-102) had told  

him (A-82) that he must go to the appellant (A-30) and bring back  

a  sum  of   Rs.2.5  lakhs.  After  discussing  the  same  with  the  

appellant, he (A-82) went to Bombay and here he was paid Rs.2.5  

lakhs which was to be paid to R.K. Singh (A-102) and Rs.1.5 lakhs  

was to be paid to the Superintendent. He collected this money and  

paid the same to the said officers.   

In respect of the incident dated 9.1.1993 the witness revealed  

that he had been informed by R.K. Singh (A-102) that on the said  

day, Mohd. Dossa would smuggle the goods and that the landing  

would take place at Dighi Jetty and that he (A-82) must assist him.  

On  that  day,  the  appellant  met  this  witness  and  informed  him  

regarding the landing that would take place at the night at Dighi  

Jetty and has thus corroborated the confessional statement of the  

appellant (A-30) to the extent that they had in fact met in the said  

manner and that it was the appellant (A-30) who had negotiated  

with Patil (A-116). It has further been revealed that the appellant  

(A-30) had driven the car of A-82.  

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Confessional Statement of Mohd. Sultan Sayyed (A-90):

82.     He  is  S.P.  Raigad.  In  his  confessional  statement  he  has  

corroborated  the  version  of  events  provided  by  the  appellant,  

regarding  the  association  of  the  smugglers  with  R.K.  Singh,  

Assistant Collector (A-102) and making regular payments of illegal  

gratification.  He has also stated that it  was the appellant  (A-30)  

who had been negotiating with the customs and police officers to  

revise the rates per landing.  He (A-90) had accepted a bribe from  

the appellant (A-30) of Rs.1 lakh out of the total amount of Rs.3.5  

lakhs that was paid by the appellant to R.K. Singh (A-102).  

Confessional Statement of SS Talwadekar (A-113):  

83.   He has also corroborated the confessional statement of the  

appellant regarding silver at Shekhadi sea-coast, in collusion with  

the customs and police officers including J.K. Gurav (A-82).  He  

has revealed that  he had been facilitating the smugglers  in their  

landings and transportation, and he has also accepted that he had  

received Rs.1.6 lakhs as was decided earlier for the first landing,  

for  the second and also third landing.   He has also  admitted to  

accepting the said amount.   

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So far as the incident dated 9.1.1993 is concerned, he has  

named the appellant (A-30) who met him (A-113) and paid him a  

sum of Rs.40,000/- out of the settled amount of Rs.1.25 lakhs.  

Confessional  Statement  of  Mohd.  Kasam  Lajpuria  @  Mechanic Chacha (A-136):           

84. His statement corroborates the statement of Salim Kutta (A-

134) to the extent that Uttam Potdar (A-30) was the landing agent,  

and  that  the  accused  had  (A-136)  met  Uttam  Potdar  (A-30)  at  

Mhasla.   He (A-136)  further  corroborated  the version of  events  

which included the interception of contraband by the Shrivardhan  

police; the negotiation of the bribe by Uttam Potdar (A-30); and  

further the giving of five silver bricks to the police as security.

Confessional Statement of Jamir Sayyed Ismail Kadri (A-133):  

85. He  has  stated  that  he  is  the  elder  brother  of  Shabbir.  He  

knew  the  appellant  (A-30)  who  was  at  that  time,  working  for  

Mohd. Dossa. During a marriage in his family on 10.1.1993 when a  

large number of his relatives were visiting,   Salim Kutta (A-134)  

and  his  friends  Feroz  and  his  brother  Shabbir  had  come to  his  

house on a Yamaha Motor Cycle alongwith the appellant (A-30).  

The appellant (A-30) left after having a discussion with his brother,  

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Shabbir. Shabbir told him (A-133) that silver and weapons would  

arrive  at  Dighi  Jetty  on  that  day,  and  this  landing  was  to  be  

supervised by the appellant (A-30). After some time, Shabbir and  

the other co-accused Salim (A-134), Feroz and the appellant (A-

30) started talking about the unloading of the goods to be brought,  

and after  discussing  the  same for  a  while,  the  appellant  (A-30)  

went out to make arrangements for the unloading of the concerned  

goods. It was on that day that he learnt that the goods were being  

sent by Mohd. Dossa.  

On 9.1.1993 at 7.00 p.m. Shabbir, Salim (A-134) and Feroz  

left  for  Dighi  Jetty  to  unload  the  smuggled  goods.  He  (A-133)  

stayed at home. They returned at 5 a.m. with three wooden boxes,  

which were kept by them in the hall of the house, and he then slept  

there.  From their conversation, the witness learnt that there were  

300 ingots of silver in total, each of them weighing 30 Kgs. and 19  

ingots which could not be loaded in the truck, and the same were  

then hidden in the open land of one Subedar who was at the said  

time, living in Nairobi.   

On 10.1.1993, the appellant (A-30) came to his house during  

the night and spoke to Salim (A-134) and Shabbir and went away.  

From  their  discussion  he  (A-133)  understood  that  silver  and  

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weapons  had been  smuggled  at  Dighi  Jetty  on  the  previous  

night.

He (A-133), alongwith others, brought 19 silver ingots and  

15/20 green coloured bags containing tin boxes in a bullock cart,  

and kept them in their house and then fell asleep. After about two  

days, Afzal Gadbad, who works in the office of Mohd. Dossa in  

Bombay, came there and took away the said silver ingots in a jeep.  

However, the tin boxes remained there. After about a month, upon  

being asked by Shabbir, the said tin boxes and bags were taken to  

the first floor of the house of Ali Mian Faki, which was in close  

proximity to  their  house.   Janardhan Pandurang Gambas (A-81)  

who is a resident of that area, and a fisherman who had participated  

in the smuggling with Shabbir, the appellant (A-30) and Abdulla  

Surati  told  the  witness  that  the  smuggled  goods  also  contained  

weapons alongwith silver ingots.  

Confessional Statement of Salim Kutta (A-134):  

86.   He  has  corroborated  the  confessional  statement  of  the  

appellant  (A-30).  However,  he  (A-134)  did  not  say  anything to  

show  that  the  appellant  (A-30)  had  knowledge  regarding  the  

contents  of  the  boxes,  particularly as  regards  the  weapons.   He  

stated that the appellant (A-30) was present during the landing at  

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Dighi  Jetty  and  had  made  arrangements  for  labour  and  a  boat.  

After the loading of the landed goods on vehicles, the appellant (A-

30) had also participated in negotiations with the police upon being  

interception by them.    

Confessional Statement of Faki Ali Faki Ahmed (A-74):

87.   He (A-74)  corroborated  the  fact  that  the  appellant  (A-30)  

was a landing agent and a resident of Mhasla, and that the appellant  

(A-30) was well acquainted with Shabbir and Jamir (A-133) who  

were involved in smuggling activities.

88. Deposition of Dilip Pansare (PW.97) –  In his deposition,  

he  reveals that he was a childhood friend of the appellant (A-30)  

and had been working in a government department.  However, he  

had  driven  the  truck  containing  smuggled  goods.   He  has  also  

deposed  that  upon  interception  by  Inspector  Patil  (A-116),  a  

discussion ensued for half  an hour, amongst the appellant (A-30),  

Gurav  (A-82),  Shabbir  Kadri  and  Inspector  Patil  (A-116).  He  

identified the truck, though the owner and the driver of the truck  

were neither made accused, nor witnesses in this case.   

89. Deposition of  Vyankatesh Hirba (PW.588)-  He was the  

officer who had effected the seizure of the Tempo bearing number  

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MH-06-5533 on 12.4.93. The appellant (A-30) in his confession  

has  stated that the said tempo was used to transport contraband  

items which were landed at Dighi Jetty.

90. Deposition of Dinesh Nakti (PW.95) speaks of silver ingots  

and wooden boxes. He identified the appellant in court  

91. A  conjoint  reading  of  the  confessional  statement  and  

deposition of witnesses reveal that appellant (A-30) had been an  

associate  of  Mohd.  Dossa  (AA) and was aware of  the fact  that  

Mohd. Dossa (AA) was involved in criminal activities.  A-30 was  

also  associate  of  co-accused  Mechanic  Chacha,  Shabbir,  Salim,  

Feroz  and  Jamir  Sayyed  Kadri.   A-30  has  been  working  as  a  

landing agent for Mohd. Dossa and others by arranging boats and  

coolies.   A-30  was  called  to  Mhasla  on  4.12.1992  wherein  he  

disclosed about the previous day landing to R.K. Singh (A-102),  

Custom Officer.  Subsequent to the said meeting, A-30 received  

Rs.6.25 lacs from A-136 and paid Rs.1 lac to Mhasla Custom staff,  

Rs.1.5  lacs  to  Shrivardhan  Custom  staff,  Rs.1.25  lac  to   R.K.  

Singh, Custom Officer.   A-30 made arrangements for  boats  and  

coolies  for  another  landing scheduled  for  9.2.1993  and  went  to  

Dighi  Jetty  on  his  motorcycle  on  9.2.1993.   He  met  Custom  

Inspector Gurav (A-82) and started driving jeep of Gurav.  When  

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the trucks carrying contraband smuggled goods were intercepted  

by police team headed by PSI V.K. Patil, A-30 told Mr. Patil that  

the money for earlier landing had been paid to Mali Havaldar who  

was also member of that police team.  It was in his presence that  

Mechanic Chacha (A-136) offered Rs.10 lacs to PSI  Patil and as  

they  did  not  have  money,  they  gave  him  5  silver  bricks  as  a  

security.  A-30 alongwith others shifted 170 bricks in the cavity of  

two trucks of Bombay and 80 silver bricks were transferred from  

one truck to another at the residence of Shabbir (AA).  He also  

went  to  the  residence  of  Shabbir.   A-30  left  the  message  at  

Shrivardhan Police Station that he would come with money on the  

night of 10.2.1993.  In his presence Rs.2 lacs were paid to Patil,  

PSI at Shrivardhan Naka and Rs.5 lacs were paid to Havaldars.  A-

30 received Rs.3 lacs from Feroz on the same night to hand it over  

to Custom Officer of Alibagh and he handed it over to R.K. Singh  

and Sayyed.   

92. After  appreciating  the  evidence  on  record,  the  learned  

Designated Court reached the following conclusions:  

“……..However  considering  further  events  which  had occurred at Ghonghar Patta i.e. interception of  goods by police, allowing the same to be further  proceeded  after  negotiations  with  smugglers,  

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presence of A-30 who was one of the main person,  or effecting landing, his role in the said episode, it  is difficult to perceive that at the said juncture A- 30  would  not  have  gathered  the  knowledge  of  contraband material. Needless to add that in cases  of conspiracy it is difficult to except to have direct  evidence and the inference about certain aspects is  required  to  be  drawn  from  established  facts  &  circumstances.  

      Thus having regard to all the aforesaid facets  it is difficult to accept that at least at the said place  A-30  would  not  have  gathered  the  nature  of  contraband goods also sent along with smugglers.  It is true that the said further acts committed by A- 30 being in the nature of continuing job for which  he had agreed i.e. effecting the silver landing the  same may not make him liable for being party to  the conspiracy to commit  the terrorist  act  or  the  larger conspiracy for which the charge at head 1st  ly  is  framed.  Such  a  conclusion  is  obvious  as  hardly there exists any other material denoting that  alter completion of job of landing & transportation,  A-30 having committed any act furthering object  of ally conspiracy. However, still now the   further  act  being  committed  by  A-30  being  with  an  expressed knowledge that the contraband material  was  containing  arms  & ammunitions  he  will  be  squarely liable for commission of offence u/s 3 (3)  of TADA. Similarly the quantity of the said arms  &  ammunition  and  the  further  acts  actually  committed by A-30 would also make him liable for  commission of offence u/s.6  TADA.  

……… Thus considering the said aspect it will be  extremely difficult to accept that policemen would  not have been aware about the nature of said goods  in trucks which were in the said trucks i.e. silver  and  arms  &  ammunitions  as  established  by  evidence. Such an inference is inevitable as such  evidence pertaining to landing clearly denotes of  the material being of two different categories i.e.  boxes and bachkies i.e. bundles. Having regard to  

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the  same  it  is  difficult  to  perceive  that  during  inspection  of  trucks  at  least  parcels  from  each  category  would  not  have  been  inspected  by  policemen.

…….Having  regard  to  aforesaid  even  assuming  that police party had permitted the said trucks to  proceed  away  without  inspection  then  also  they  cannot  escape  the  liability  arising  out  of  said  illegal omission committed by them. In view of the  same the knowledge of  the nature of  contraband  goods will he required to be presumed for them.  

       Now considering the liability of A-136 as  revealed  from the  earlier  discussion  but  without  once  again  repeating the  dilation made earlier  it  can be said that the same having revealed that A- 136 had become aware about the nature of goods  after  he   was  told  regarding  the  same  and  the  direction of accused Mustafa Dossa by A-134. As  dilated earlier,  it  is  clear  that  though A-136 had  continued with the said operation i.e. the operation  of smuggling for which he had agreed earlier and  in the process having committed the offence u/s.3  (3) of TADA still he cannot be said to be guilty for  the offence of conspiracy to which A-134 was said  to be party. Needless to add that considering the  acts  committed  by  A-136,  his  liability  remained  confined to having  committed the offence u/s.3(3)  and Sec. 6 of TADA.  

     The case of A-30 also appears to be similar to  that of A-136 i.e. himself being not aware since the  beginning of the goods to be smuggled being arms  &  ammunitions  and  having  acquired  the  knowledge  about  same  during  the  midst  of  operation but in spite of the said knowledge having  continued  the  said  operation  giving  rise  to  the  liability for commission of offence u/s. 3(3) & Sec.  6  of  TADA.  At  the  cost  of  repetition  it  will  be  required to be added that A-136 and A-30 having  committed the relevant acts in the month of Jan.,  1993 on the  dates  on  which even Tiger  Memon  

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had not disclosed his intent regarding the places at  which  the  explosions  were  to  be  committed  in  Bombay and themselves having not committed any  act other than completing the smuggling operation  for  which  they  had  agreed  they  cannot  he  held  guilty for any offence of conspiracy though would  he  liable  for  commission  of  offences  as  stated  aforesaid.”  

93. The confession of A-134 does not show that the appellant  

(A-30) was aware of the contents of the contraband goods were  

arms  and  ammunition,  either  prior  to  the  landing  or  thereafter.  

However, considering the event of interception of the said goods  

by the police and the presence and involvement of the appellant  

(A-30)  in  negotiations  with  the  police  for  clearing  the  said  

smuggled goods, it is difficult to believe, that at the said time, the  

appellant (A-30) did not have knowledge regarding the contraband  

material.   

The confession of A-133 however reveals that he (A-133)  

had overheard the appellant (A-30) discussing the contents of the  

contraband after the items had landed.

In case of conspiracy, it is difficult to find direct evidence  

and thus, inference is required to be drawn from established facts  

and circumstances.   

Hence, it is difficult to accept, that in the said circumstances  

the appellant (A-30) was unaware of the nature of the smuggled  

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goods.   The acts that were further committed by the appellant (A-

30),  were  in  the  nature  of  continuing  his  job  in  effecting  the  

landing of silver, and the same may not make him liable as a party  

to the conspiracy to commit terrorist acts. However, certain other  

acts  that  were  committed  by  him  (A-30),  with  the  express  

knowledge that the contraband material did in fact contain arms  

and ammunition, would make him liable for commission of offence  

under Section 3(3) TADA. Furthermore, the quantity of arms and  

ammunition, and the further acts committed by the appellant would  

also make him liable for commission of offence under Section 6  

TADA.   

94. The examination of the appellant (A-30) under Section 313  

of  Cr.P.C. reveals that he had assisted in the landing of goods at  

Dighi Jetty on 9.1.1993, and that he had taken the stand of being  

involved in the landings of silver even prior to the said event, and  

that he did not know the nature of the goods that were landed in the  

said landing.   The evidence of PWs 95 and 97 corroborates the  

fact that landing had occurred at the said time and place.  Their  

evidence reveals that the goods were packed in boxes, or in green  

coloured cloth bag that had been tied at the mouth, and that thus,  

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they were not aware of the contents.  They had acted at the behest  

of the appellant (A-30) for which they had received payment.    

95. The appellant (A-30) was aware that the smuggled  goods  

were  arms  and  ammunition,  and  even  after  acquiring  such  

knowledge,  he  had  continued  the  landing  of  the  said  smuggled  

goods.  This makes him liable for commission of offences under  

Section 3(3) and 6  TADA.    

96. His (A-30) role is akin to that of Mechanic Chacha (A-136).  

Thus, we do not find any force in the appeal and it is accordingly  

dismissed.

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

appeal against the order of acquittal have to be applied.  

98. The evidence on record made it crystal clear that A-30 was  

not only a close associate of Tiger Memon (AA) and acting as a  

landing agent, but a man of confidence who could negotiate with  

the  police  and  customs  officials  to  fix  the  amount  of  bribe  for  

facilitating  the  smuggling  and  transportation  of  the  smuggled  

contraband. He was a person who had negotiated with the police at  

Gondghar  Phata.  He  had  been  fully  aware  of  the  nature  of  

contraband, and in spite of  coming to know that  the contraband  

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contained arms, ammunition and explosives, he continued to help  

the smugglers. It is also evident that he had close association with  

Jaywant Keshav Gurav (A-82), officer of the customs department,  

who had been helping the smugglers by taking a bribe through A-

30. Therefore, in view of the above, we do not concur with the  

findings of fact recorded by the learned Designated Court that A-

30 could not be convicted for conspiracy.    

99. In  the  facts  and  circumstances,  the  appeal  filed  by  the  

appellant (A-30) is dismissed, and appeal filed by the State through  

CBI  is  allowed.   Appellant  (A-30)  is  convicted  for  the  offence  

under  Charge  I,  and  awarded  the  life  imprisonment.   The  

Designated Court is directed to take him into custody and send him  

to Jail to serve out the remaining sentence, if any.  

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CRIMINAL APPEAL NO. 1420  OF 2007

Mohd. Rafiq @ Rafiq Madi Musa Biyariwala                                                            …Appellant

Versus

State of Maharashtra            … Respondent                      

AND  

CRIMINAL APPEAL NO. 1031  OF 2012

The State of Maharashtra thr. CBI                                      …Appellant

Versus

Mohd. Rafiq @ Rafiq Madi Musa Biyariwala            … Respondent                      

Criminal Appeal No. 1420 of 2007

100.  This  appeal  has been preferred against  the judgment and  

order dated  31.5.2007, passed by Special Judge of the Designated  

Court  under  the TADA for Bombay Blast,  Greater  Bombay,  by  

which the appellant (A-46) has been convicted under Section 3(3)  

TADA.  However,  Criminal  Appeal  No.1031 of  2012 has  been  

filed by the State against the said judgment as A-46 stood acquitted  

of the charge of larger conspiracy.

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

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

(A-46) was charged for participation in landing and transportation  

of arms, ammunition, hand grenades and explosives like RDX to  

be used in Bombay blast on 12.3.1993.

B. He  was  further  charged  for  abetting  and  participating  in  

terrorist  activities  as  the  appellant  participated  in  the  month  of  

February 1993 alongwith co-conspirators in the landing of arms,  

ammunition  and  explosives  at  Shekhadi.   Further  he  (A-

46) alongwith co-accused Asgar Mukadam drove other co-accused  

to Sahar Airport who had gone for training to Pakistan.  Further he  

delivered motor vehicle having arms, ammunition and explosives  

at the residence of Amjad Aziz Meharbux and thereby committed a  

separate offence punishable under Section 3(3) TADA.  

C. The appellant was further charged under Section 6 TADA  

for possessing and transporting arms, ammunition and explosives  

like hand grenades and detonators from Shekhadi to Bombay in an  

unauthorized manner.   

102. The appellant (A-46) has been convicted under Section 3(3)  

TADA,  and  given  a  sentence  of  R.I.  5  years  and  a  fine  of  

Rs.25,000/-and  in  default  of  payment  of  fine,  to  suffer  further  

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imprisonment of six months; under Section 6 TADA, a sentence of  

R.I. 7 years and a fine of Rs.50,000/- and in default of payment of  

fine,  to  further  suffer  one  year  RI.   Both  the  sentences  were  

directed to run concurrently.

Hence, this appeal.  

103. Shri Mushtaq Ahmad, learned counsel appearing on behalf  

of  the  appellant,  has  submitted  that  the  appellant  (A-46)  has  

wrongly been enroped in the crime, he was no where involved. The  

confessional statements of the appellant as well as the co-accused  

could not be relied upon as it has been obtained by coercion and it  

could not be held to be useful and truthful. More so, the learned  

Designated  Court  failed  to  appreciate  the  evidence  in  correct  

perspective.  Therefore, appeal deserves to be allowed.   

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

appearing on behalf of the State, opposed the appeal contending  

that the appellant had been deeply involved, not only in the landing  

and transportation of the smuggled goods, but being a very close  

associate  of  Tiger  Memon(AA),  was  involved in  the conspiracy  

also for which he has wrongly been acquitted.  The evidence on  

record fully established his involvement in the crime.  Thus, appeal  

lacks merit and is liable to be dismissed.  

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We have heard learned counsel for the parties and perused  

the record.  

105.      Evidence against the appellant (A-46):

(a) Confessional statement of  Rafiq Madi(A-46)

(b) Confession of Asgar Yusuf Mukadam @ Munna (A-10)

(c) Confession of Abdul Gani Ismail Turk (A-11)

(d) Confession of Parvez Nazir Ahmed Shaikh (A-12)

(e) Confession of Dawood Taklya Mohammed Phanse (A-14)  

(f) Confession of Dadabhai (A-17)

(g) Confession of Shahnawaz Abdul Kadar (A-29)

(h) Confession of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-

64)

(i) Confession of Altaf Ali Mustaq Ali Sayed (A-67)

(j) Confession of Gulam Hafiz Shaikh @ Baba (A-73)  

(k) Confession of Mubina @ Baya Moosa Bhiwandiwala (A-96)

(l) Confession  of  Parvez  Mohmed  Parvez  Zulfikar  Qureshi  @  

Parvez Kelewala (A-100)

(m) Deposition of Usman (PW-2)  

Confessional statement of  Rafiq Madi  (A-46)     :   

106.      In his confessional statement, appellant (A-46) has deposed  

that  he  used  to  work  as  driver  for  Tiger  Memon’s  family  and  

sometimes,  when  he  was  unemployed,  used  to  sell  clothes  or  

cassettes  on  footpath.   He  worked  as  driver  of  Mushtaq  Abdul  

Razak Memon @ Ibrahim @ Tiger for about 10-12 months.  Tiger  

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Memon  (AA)  had  been  involved  in  Hawala  business  and  

smuggling  of  gold  and  silver  from  Dubai.   The  appellant  (A-

46) used  to  participate  in  landing  and  transportation  of  the  

smuggled goods and was being paid Rs. 2500/- as salary per month  

and Rs.3000 to 4000 per  landing in addition to salary.   Tiger’s  

office stood closed due to riots in Bombay in December 1992 and  

January 1993, thus, the appellant lost his work like a large number  

of other youths.  One day when he went to the house of Tiger for  

collection of his salary for December, 1992 he (A-46) was directed  

to go out for Tiger’s work. Appellant (A-46) was not willing to go  

for the work as he was not feeling well, however being poor he  

went because of offer of money.  Appellant (A-46) went in a jeep  

alongwith  Tiger,  Yakub  Yeda,  Javed  Chikna,  Usman  and  his  

associates for landing of smuggled goods.  Dawood Taklya (A-14)  

was present there alongwith his associates.  They waited the whole  

night but the smuggled goods did not come.  They came back and  

stayed in a Hotel and in the evening they went to the landing point  

but  the  articles  did  not  arrive  that  night  also.   They  came  to  

Alibaug and stayed in a hotel for 2-3 days.  On 3.2.1993 night, the  

appellant  alongwith others  proceeded from Alibaug and reached  

the place of landing.  Tiger and Yakub were also there.   

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Appellant  (A-46) after  taking  the  smuggled  goods,  which  

was in boxes came to the Tower in the jeep at 11.30 p.m.  On being  

asked,  Shafi told that the boxes contained electronic goods.  On  

4.2.1993 appellant  (A-46) went to the house of Dadabhai (A-17)  

where Shafi asked the appellant (A-46) to load the articles from the  

tower.   Appellant  (A-46) alongwith  Dadabhai  (A-17)  and  Shafi  

reached the tower with a truck and Maruti van and loaded the truck  

with 59 gunny bags and covered the same with empty gunny bags.  

Shafi left from there taking the truck.  The appellant  (A-46) and  

Dadabhai (A-17) went to the house of Dadabhai (A-17) and slept  

after having the dinner.  On 5.2.1993 the appellant (A-46) went to  

Mahad and then to Nagothane in Maruti van. The vehicle being  

driven by Shafi was left at Nagothane.  Appellant (A-46), Shafi and  

Dadabai (A-17) left  for Alibaug to bring Mohd. Hussain.   From  

there Shafi left by jeep instructing the appellant (A-46) to reach at  

Bandra  Talab with  Maruti  Van near  in  the  evening.   There  the  

appellant  (A-46)  would exchange the van with a jeep given by  

Riaz.  On 6.2.1993 the appellant (A-46) met Anwar at 11 O’Clock  

in  the  morning  near  his  house.   They  went  to  bungalow  of  

Meharbux (Discharged Accused) at Mahim in that vehicle.  The  

appellant  (A-46) was asked to remove the jeep and park it at the  

house of Meharbux.       

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Confession of Asgar Yusuf Mukadam @ Munna (A-10)

107. Asgar Yusuf Mukadam @ Munna (A-10) in his confessional  

statement has involved appellant (A-46) to the effect that he had  

been  working  for  Tiger  Memon  (AA)  and  he  dropped  the  co-

accused (A-10) to Sahar Airport from where A-10 alongwith others  

went to Dubai.  

Confession of Abdul Gani Ismail Turk (A-11)

108. Abdul  Gani  Ismail  Turk  (A-11)  has  disclosed  in  his  

confessional  statement  that  appellant  (A-46)  participated  in  the  

landing at Mhasala made by Tiger Memon (AA).  

Confession of Parvez Nazir Ahmed Shaikh (A-12)

109. Parvez  Nazir  Ahmed  Shaikh  (A-12)  stated  in  his  

confessional  statement  that  appellant  (A-46)  was  present  at  Al  

Husseini  Building  and  money  had  been  paid  to  (A-46)  in  his  

presence.  

Confession of Dawood Taklya Mohammed Phanse (A-14)

110. Dawood Taklya  Mohammed Phanse  (A-14)  disclosed  that  

appellant  (A-46) told him that his ticket had been booked and he  

had to leave for Dubai on the same day.  

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Confession of Dadabhi (A-17)

111. Dadabhai (A-17) disclosed that he alongwith appellant  (A-

46) and Shafi facilitated and participated in transfer of smuggled  

goods from Wangni Tower to Bombay.

Confession of Shahnawaz Abdul Kadar (A-29)

112. Shahnawaz  Abdul  Kadar  Qureshi  (A-29)  disclosed  that  

appellant  (A-46)  was  among  the  persons  who  participated  in  

several landings. Appellant  (A-46) had come to his residence and  

told him that his tickets were ready. He (A-46) was present at the  

airport and a sum of  Rs. 50,000/- was paid to  him for distribution  

among other co-accused.  

Confession of Nasir Abdul Kader Kewal @ Nasir Dakhla (A- 64)

113. Nasir  Abdul  Kader  Kewal  @  Nasir  Dakhla  (A-64)  has  

disclosed  that  in  January,  1993  he  had  seen  appellant  (A-

46) waiting for co-accused and appellant  (A-46) was always seen  

with  Tiger  Memon  (AA)  and  used  to  communicate  Tiger’s  

messages.  A-46 was also present at the Al-Husseini Building in  

the intervening night between 11th/12th March, 1993 when the RDX  

was filled up in the vehicles.  

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114. Bashir Ahmed Usman Gani Khairulla (Bashir Electrical) (A-

13), Altaf Ali Mustaq Ali Sayed (A-67), Gulam Hafiz Shaikh @  

Baba (A-73), Gul Mohammed @ Gullu Noor Mohmed Shaikh (A-

77),  Mubina @ Baya Moosa Bhiwandiwala (A-96) and  Parvez  

Mohmed  Parvez  Zulfikar  Qureshi  @  Parvez  Kelewala  (A-100)  

have  also  named  the  appellant  A-46  giving  details  of  his  

involvement in landings etc.  

Deposition of Usman Jan Khan (PW-2)

115. Usman Jan Khan (PW-2) has identified the appellant (A-46)  

in court and also disclosed that he was active participant in landing  

and transportation.

116. The Designated Court after appreciating the entire evidence  

on record came to the conclusion that the appellant (A-46) actively  

participated in the Shekhadi landing and transportation operation of  

contraband  goods  i.e.  AK-56  rifles,  ammunition,  RDX  etc.  

smuggled into the country by Tiger Memon (AA). Confession of  

the appellant (A-46) revealed that he was in employment of the  

Memon family, however he had been to Shekhadi landing. It could  

not be accepted that the appellant (A-46) was not aware of illegal  

business  of  Tiger  Memon  (AA)   or  about  the  nature  of  the  

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contrabands smuggled into India. The presence of the appellant (A-

46)  at  the  place  where  the  goods  were  exchanged,  at  Wangni  

Tower and concealed into cavities of vehicles for transportation to  

Bombay, shows  that he was a person of very close confident of  

Tiger  Memon (AA).  The appellant  (A-46) handed over a  motor  

vehicle containing arms and ammunitions at residence of Amjaz  

Abdul Aziz Meherbux (A-68).  

Confessions  of  co-accused  clearly  established  the  

involvement of the appellant (A-46) along with Asgar (A-10) for  

taking co-accused persons, who were sent for training to Pakistan  

via Dubai, though he may not be aware of the purpose for which  

the co-accused were sent to Dubai.  

In view of the above well reasoned judgment, we do not find  

any evidence on record to warrant interference in the conclusion  

drawn  by  the  Designated  Court.  The  appeal  lacks  merit  and  is  

accordingly dismissed.  

Criminal Appeal No. 1031 of 2012

117. This appeal has been filed by the State against the acquittal  

of the respondent of the charge of larger conspiracy.  

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118. On the first charge, the learned Designated Court considered  

the  entire  evidence  as  referred  to  hereinabove  and  came  to  the  

conclusion:

“However hardly there being cementing material   for  establishing  nexus  of  A-46  with  conspiracy   for which he is charged with and material having   remained confined of himself having committed   of aforesaid offences,  it  will  be difficult  to hold   him liable for conspiracy for which he is charged   with.  The same is obvious as hardly there is any   material  indicating  A-46  having  committed  any   other  acts  because  of  which  he  is  said  to  have   further  object  of  conspiracy  for  which  he  is   charged with.”  

119. The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

120. In view of the above, the appeal is liable to be dismissed.  

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CRIMINAL APPEAL NOS. 675-681  OF 2008

Suleman Mohamed Kasam Ghavte & Ors.                    …Appellants

Versus

State of Maharashtra thr. STF, CBI  Bombay        … Respondent                      

121. These appeals have been preferred against the judgments and  

orders dated 11th, 12th 16th, 17th October, 2006, 23rd /24th  May, 2007  

and 1st  June, 2007 passed by the Special Judge of the Designated  

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

by which the appellants have been convicted. In view of the fact  

that each appellant being assigned different acts, has been charged  

differently  and  has  been  awarded  a  different  sentence,  it  is  

desirable  to  deal  with  the  case  of  each  appellant  separately  to  

certain extent.  

I.  Suleman Mohammed Kasam Ghavte (A-18)  :

122. The appellant(A-18) has been convicted on two counts under  

Section  3(3)  of  TADA, and has  been awarded 7  years  rigorous  

imprisonment alongwith a fine of Rs. 25,000/- and in default  of  

payment of fine, to suffer further RI for 6 months on each count.  

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123. In addition to  the first  charge of  conspiracy,  he  has  been  

charged for the following offences:

(i) That he has participated alongwith the other conspirators in  

the landing and transportation of arms, ammunition and explosives  

at Shekhadi, and has smuggled goods into the country to be used  

for the commission of terrorist acts.

(ii) That,  he alongwith co-accused Abdul Rehman Shaikh (A-

28) and others transported RDX explosives in Motor Tempo No.  

MMP-4799  from  Shekhadi  to  Panvel,  and  the  same  contained  

goods that were smuggled into the country by Tiger Memon (AA)  

and his associates for the purpose of committing terrorist activities.  

(iii)  That he participated in weapons’ training at Sandheri/Borghat.  

Thus, he has been charged under Section 3(3) TADA and  

has been  convicted and sentenced as mentioned hereinbefore.  

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

appellant has submitted that the appellant was unaware of the fact  

that the items being landed were those other than silver, and that he  

realized this fact only later.  Furthermore, his confession had not  

been made voluntarily,  but  under threat  and coercion.  Thus,  the  

appeal deserves to be allowed.

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125. On the contrary, Shri  Mukul Gupta, learned senior counsel  

appearing for the State has submitted that the appellant has been  

named by several witnesses of the Shekhadi landing. Moreover, the  

said vehicle had been seized and the FSL report was also positive  

as regards the presence of RDX. Therefore, the appeal deserves to  

be dismissed.

126. We have heard learned counsel for the parties and perused  

the record.  

127.Evidence against the appellant (A-18):   

(a) Confessional statement of Suleman Mohd. Kasam Ghavte (A-18)

(b) Confessional statement of Abdul Gani Ismial Turk (A-11)

(c) Confessional statement of Rusi Framroze Mulla (A-125)

(d) Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)

(e) Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)

(f) Confessional statement of Liyakat Ali Habib Khan (A-85)

(g) Confessional statement of Abdul Gafoor Parkar (A-17)

(h) Deposition of Babydas Vasu (PW-290)

(i) Deposition of Pradeep S. Dalvi (PW-293)

(j) Deposition of Abdulmunaf A. Mahimi (PW-294)

(k) Deposition of Asit Ghorai (PW-602)

(l) Deposition of Ajit Surve (PW-604)

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(m) Deposition of Moreshwar Thakur (PW-469)  

128. Confessional  Statement  of  Suleman  Mohd.  Kasam  Ghavte( A-18):

In  his  confessional  statement  recorded  on  18.4.1993  and  

20.4.1993, the appellant has disclosed that he had been working as  

a driver. He has stated that he knew of a person named Anwar, who  

had lived in close proximity to his house right from his childhood.  

A  relative  of  the  appellant  (A-18)   had  asked  him whether  he  

would travel to Ajmer Sharif along with Anwar in a Maruti Car. He  

had thus gone to Ajmer driving the said vehicle with Anwar, who  

had been working with Tiger  Memon (AA) and was also being  

paid by him.  A tempo bearing No. MMP-4799, belonging to a  

decorator was given to the appellant (A-18) on 5.2.1993. The said  

vehicle  had been driven by him to take Sayyed Abdul  Rehman  

Shaikh (A-28) and Abdul Gani (A-11) to Mhasla. Dawood Taklya  

(A-14) and Dadabhai (A-17) were already present at Mhasla. Fifty-

sixty  packets were loaded into the said vehicle. The said packets  

were dug out from the land. When the appellant (A-18) touched  

these packets, he realised that they did not contain silver smuggled  

from abroad. After collecting the aforementioned goods, he left for  

Bombay alongwith co-accused (A-55). When they reached Panvel,  

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he  realized  that  Tiger  Memon  (AA)  had  also  come  there  in  a  

Maruti car, and as per his instructions, they had then driven to the  

house of Dawood Taklya (A-14)  in Mhasla in order to leave the  

tempo there. After some time, the appellant (A-18) had returned to  

Bombay,  alongwith Gani (A-11) and others.   After  2-3 days on  

9.2.1993, he had gone to Mahad driving the said vehicle and  had  

reached there at  noon. He had seen a Maruti  car  and two jeeps  

parked  there,  and  also  saw  Tiger  Memon  (AA),  Yakub  Haji,  

Anwar, Javed Chikna, Gani, Shafi and 5-6 other boys. Shafi asked  

the appellant (A-18) to stop the tempo at a petrol pump situated  

between  Goregaon  and  Madgaon.   At  about  6  o’  clock  in  the  

evening, two boys had come there in a tempo, and had asked the  

appellant (A-18) to take the said tempo to the Mhasla tower. The  

appellant (A-18) had then taken the vehicle to Mhasla tower and  

had reached there at about 9.30 pm.  The accused Anwar, Tiger  

Memon (AA), Shafi, Gani, Dawood Taklya (A-14), Dadabhai (A-

17), Javed  Chikna and a few other persons had also come there at  

about 3.00 A.M.   Upon the instructions of Tiger Memon (AA), the  

appellant  (A-18) had then taken the vehicle to Chilpara Kalyan,  

where he had arrived reached at noon. The appellant (A-18) was  

then asked to leave the jeep at the house of Anwar.  He reached the  

house of Anwar at about 4.00 P.M., left the vehicle there and was  

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paid a sum of Rs.5000/- for the two trips that had been made by the  

appellant (A-18).  From the conversation of Anwar, Tiger Memon  

and his partner, the appellant (A-18) had understood that the goods  

which were in the said vehicle were not silver, but something else.  

After  he  learnt  that  the  aforementioned  accused  had  been  

smuggling something other than silver and gold, the appellant (A-

18) had stopped working for Anwar.  

129. Confessional Statement of   Abdul Gani Ismail Turk   (A-11)  :

Abdul  Gani  Ismail  Turk  (A-11),  in  his  confessional  

statement  has  stated  that  the  appellant  (A-18)  had  been  

participating in smuggling activities with his consent, and that he  

had known what was being smuggled. On 7th /8th February, 1993,  

he  (A-11)  had  gone  to  the  house  of  Tiger  Memon  at  the  Al-

Husseini building in Mahim.  Tiger Memon had then taken him to  

the house of Anwar (AA), where they had met two other persons  

and he had learnt that the said people were Sayyed Abdul Rehman  

Shaikh (A-28) and the appellant  (A-18),  and that  the two had a  

tempo with them.   Tiger Memon had given him one lakh rupees  

and had asked him to go with the appellant (A-18) and to pay the  

said  amount  to  Dawood  Taklya  (A-14)  and  to  return  with  a  

chemical i.e. “black soap”.  The said “black soap” was the same  

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chemical  that had been brought to the tower on the night  of 3rd  

February, 1993.   He (A-11) alongwith the appellant (A-18) and  

Sayyed Abdul Rehman Shaikh (A-28) had left Mahim at midnight,  

and had reached the tower  the next  day at  about  11 A.M.  An  

amount of rupees one lakh that had been given by Tiger Memon  

(AA), was handed over to Dawood Taklya (A-14). The appellant  

(A-18)  along with  Abdul  Gani  Ismial  Turk  (A-11),  and Sayyed  

Abdul Rehman Shaikh (A-28) had then loaded about 59 bags of the  

said chemical into the tempo that evening, and had thereafter, left  

for Bombay.  They reached the Welcome Hotel at Panvel at about  

11-12 o’ Clock at night.  They had met Tiger Memon (AA) there  

and he (A-11) and the appellant (A-18) were directed to instruct  

Dawood  Taklya  (A-14)  to  keep  some  persons  ready  for  work.  

They had conveyed the said message to Dawood Taklya (A-14).  

Dawood Taklya (A-14) had sent his son Sarfaraz (A-55) alongwith  

the appellant (A-18), Abdul Gani Ismail Turk (A-11) and Sayyed  

Abdul Rehman Shaikh (A-28) to Bombay.  

130. Confessional Statement of Rusi Framroze Mulla (A-125):

   He has corroborated the prosecution’s version of events  

regarding the transportation of smuggled goods from Shekhadi to  

Panvel.  

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Thus, in their confessional statements the aforesaid accused  

persons  have  revealed  that  the   appellant  (A-18)  had  fully  

participated in the landing and transportation of smuggled goods,  

which included weapons and not just silver and gold.   

131. C  onfessional Statement of Parvez Nazir Ahmed Shaikh (A-12):   

He (A-12) in his confessional statement has revealed that he  

had been working with Tiger  Memon (AA) in the execution of  

hawala transactions and that he had been paying money to persons  

as was directed by Tiger Memon (AA) from time to time. After the  

Bombay riots he could not attend the office of Tiger Memon (AA)  

as the same had been closed.  During this period he (A-12), has  

stated that he, alongwith Ajgar were staying in Shaffi’s house and  

that he would call the house of Tiger Memon’s at the Al Husseini  

building intermittently, but upon his doing so, he was always told  

that there was no work. Upon the instruction of Tiger Memon (AA)  

in  January,  1993 he  had gone to  Mhasla  and had  met  Dawood  

Taklya  (A-14)  and  had  also  participated  in  the  landing.  The  

smuggled goods were brought from the jetty to the Wangni tower.  

The  men  employed  by  Javed  and  Yakub  who  had  come  from  

Bombay  had  then  opened  the  boxes  which  contained  bullets,  

revolvers,  pistols  etc.  All  the contraband were shifted into false  

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cavities  in  the  jeeps  and  tempos  that  had  been  organized,  and  

which thereafter,  departed for Bombay. One such jeep had been  

entrusted to  him (A-12).  He along with Nasir  had been told by  

Tiger Memon (AA) to wait at Khandala, and one contact number  

had been given to them. At Khandala, they had gone to Hotel New  

Taj. A-12 had then tried to contact Tiger Memon (AA) over the  

telephone,  using  the  said  contact  number  at  Hotel  Big  Splash,  

Alibagh. However, he was only able to speak to Mohd. Hussain  

who had  advised  A-12  to  wait  there,  and  had  stated  that  A-18  

would come there in the morning. Consequently, the appellant (A-

18) had come there with Imtiyaz in the afternoon. With them, A-12  

had gone to Bombay, and had been dropped off at Bandra Talab  

and the appellant (A-18) and Imtiyaz had also left from there.

132. Confessional Statement of Sayyed Abdul Rehman Shaikh (A-28):  

   His confessional statement reveals that on 5 th February,  

1993  at  about  midnight,  when  he  (A-28)  was  returning  from  

shooting, the appellant (A-18) had met him on the road itself and  

had told him (A-28) that Tiger Memon (AA) was calling for him.  

Tiger Memon (AA) was standing nearby, and hence he met Tiger  

Memon who had told him to go to Mahim. Yeda Yakub had also  

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been  standing  there  alongwith  Tiger  Memon.  Thus,  he  has  

corroborated the statement of Abdul Gani Ismail Turk (A-11).

133. Confessional Statement of Liyakat Ali Habib Khan (A-85):

     His confessional statement reveals that in the second  

week of February 1993, his uncle Yakub Khan had asked his father  

to allow him to keep a few bags, for the period of a few months in  

their godown at Thane and thus,  he had been allowed to do so.  

After  a  while,  his  uncle  Yakub  Khan,  Tiger  Memon  (AA)  and  

Nisar had come to his house in a jeep and had taken him along with  

them.  After opening the godown of the factory, two tempos had  

been taken inside, and it was then that the goods were unloaded.  

There were 80 packets in gunny bags, and each bag weighed about  

30 to 35 Kgs. Tiger Memon had given Liyakat Ali Habib Khan (A-

85) a sum of Rs.600/-  out of which he had given Rs.200/- to Nisar  

and  thereafter,  Liyakat  Ali  Habib  Khan  (A-85),  Nisar  and  the  

appellant (A-18) had gone to the said factory and had then left for  

Bombay.  On the way, the appellant (A-18) had told him that the  

goods that had kept in their factory were actually explosives.  

134.   Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), in his  

confessional statement has disclosed that the appellant (A-18) had  

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in  fact  been  present  when  59  packets  had  been  brought  into  

Bombay.  

135. Deposition of Babydas Vasu (PW-290):    

He had  been  working  in  a  hotel  in  Indraprastha  at  Nage  

Thana, District Raigad. He has deposed that the appellant (A-18)  

alongwith others, had come there and had stayed in the said hotel  

for some time.  There are entries to this effect in the hand writing  

of the appellant (A-18).  Room No. 106 had been booked for them  

in the said hotel. He has produced the register to prove the same,  

but the said entries are of the year 1992, and not of 1993.

136.   Deposition of Pradeep S. Dalvi (PW-293):   

He has  deposed   that  he  was the  registered  owner  of  the  

vehicle Matador Tempo bearing registration No. MMP-4799 which  

had been sold to a decorator in 1988.  The said tempo, bearing this  

registration number had been used for  the smuggling of  various  

types of  contraband, including weapons, from Shekhadi to Panvel  

by the appellant (A-18).  

137.        Deposition of Abdulmunaf A. Mahimi (PW-294):   

He has deposed that he was the brother of Abdul Samad who  

had  been  carrying  on  the  business  of  electrical  and  mandap  

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decoration,  and that  the said vehicle had been purchased by his  

brother  Abdul  Samad  (not  examined)  between  5.2.1993  and  

9.2.1993. The tempo was not found in the campus. The said vehicle  

had been seized on 30.11.1993, but  no samples  etc.  were taken  

from the vehicle to determine whether it contained RDX explosives  

etc. or not.  

138.   Deposition of Asit Ghorai  (PW-602):   

He has deposed as a panch witness and has stated that 13  

samples  were  in  fact  taken  after  the  seizure  of  the  vehicle  on  

30.11.1993. The samples were then sent for chemical analysis.  

139.    Deposition of Ajit Surve (PW-604):   

He has proved the seizure of the vehicle and the sending of  

the RDX samples for chemical analysis and also the receipt of the  

report stating that RDX had been found therein.  

140.     Deposition of Moreshwar Thakur (PW-469):  

He has deposed that the  Test Identification Parade had been  

held  in  accordance  with  law,   and  has  further  stated  that  some  

witnesses had identified the appellant (A-18), as the person who  

was had been involved in the landing at Shekhadi.   

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141. After due consideration of the entire evidence on record, the  

Designated Court came to the conclusion that as the appellant (A-

18)  was  involved  in  the  Shekhadi  landings  operation,  he  has  

committed the offence under section 3(3) TADA. The evidence has  

also  established his involvement in commission of the offence of  

conspiracy with  the  object  of  committing  terrorist  acts,  as  the  

appellant  (A-18)  had  been  made  aware  of  the  nature  of  the  

smuggled goods and had still transported the same. The said act  

amounts to furthering the object of conspiracy to commit terrorist  

acts.  However it has been held that the appellant (A-18) himself  

has not committed any act and that he himself has not participated  

in  any conspiratorial  meetings,  to denote that  he was actually  a  

party to the conspiracy to commit serial bomb Blast or a party to  

the larger conspiracy i.e. the first charge.  

142. So far  as  the appellant  (A-18)  is  concerned,  undoubtedly,  

there is sufficient evidence to show that he was involved in the  

transportation of contraband. From the facts and circumstances of  

the case, and after taking into consideration the evidence on record,  

it cannot be inferred that despite being a close associate of Tiger  

Memon  (AA),  he  remained  unaware  of  the  nature  of  the  

contraband.   Furthermore,  when a  person  has  been  transporting  

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goods for a long period of  time it  is  difficult  to believe that he  

would  transport  the  said  goods,  without  ascertaining  the  exact  

nature of goods being loaded into his vehicle, particularly, in view  

of the fact that  the vehicle is likely to be checked at several places  

by the police, as well as by custom officials. Thus, we do not see  

any cogent reason to hold that the appellant (A-18) is not guilty of  

the  charges  for  which he  has  been punished  by the  Designated  

Court.  

II.  Sayyed Abdul Rehman Shaikh (A-28)

143. The  appellant  (A-28)  has  been  convicted  on  two  counts  

under Section 3(3) TADA for the offence of conspiracy, and has  

been awarded 7 years rigorous imprisonment alongwith a fine of  

Rs. 25,000/-, and in default of payment of fine, to suffer further RI  

for 6 months on each count.

       144. In addition to the first  charge of  conspiracy,  he had been  

charged under Section 3(3) TADA for  the following offences:

(i) That he participated alongwith the other co-accused in the  

landing and transportation of arms, ammunition and explosives at  

Shekhadi,  and  transported  the  same  from  Shekhadi,  Mhasla  to  

Shilphata,  Bombay in a Motor Tempo, bearing Registration No.  

MCY-2279.  Further,  he  (A-28)  has  also  transported  RDX  

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explosives  from  Mhasla  to  the  godown  of  co-accused  Noor  

Mohmed  Haji  Mohmed  Khan  and  Mohmed  Jindran  Mumtaz  

Jindran in Motor Tempo No. MMP-4799, while accompanied by  

Shakil Shahbuddin Shaikh (A-59).  He (A-28) has been convicted  

and sentenced as mentioned hereinabove.  

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

submitted that the appellant (A-28) did not own the van in which  

the goods were transported. Moreover, he has served 3 years out of  

the  total  sentence  awarded  to  him,  and  is  now  60  years  old.  

Therefore,  leniency  should  be  shown  to  him.  Thus,  the  appeal  

deserves to be allowed.

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

State has submitted that he was involved in the transportation of  

arms and ammunition within the territory of India, and owing to  

the serious nature of the offence committed by him, there should be  

no leniency. Thus, the appeal deserves to be dismissed.

147. We have heard learned counsel for the parties and perused  

the record.  

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148. Evidence against the appellant (A-28):

(a) Confessional statement of  the appellant (A-28)

(b) Confessional statement of Abdul Gani Ismail Turk (A-11)

(c) Confessional  statement  of  Dawood  Taklya  Mohammed  Phanse (A-14)

(d) Confessional statement of Sharif Parkar @Dadabhai (A-17)

(e) Confessional  statement  of  Suleman  Mohammed  Kasam  Ghavate (A-18)

(f) Confessional statement of Shakil Shahbuddin Shaikh (A-59)

(g) Confessional statement of Shahnawaz Khan (A-128)

(h) Deposition of Vijay Govind More (PW.137)

(i) Deposition of Uttam K. Kale (PW.190)

(j) Deposition of Dileep M. Katarmal (PW.284)

149. Confessional statement of Sayyed Abdul Rehman Shaikh  (A-28):

His statement was recorded by Sanjay Pandey (PW.492),  

DCP on 23.4.1993 and 26.4.1993. In his confessional statement, he  

has disclosed that he was a driver by profession and that he had a  

driving licence. He had known Tiger Memon  (AA) for the  last 6-7  

months  and  also  Anwar,  Gani  (A-11),  Rafique  Madi  and  Haji  

Yakub.  Hazi  Yakub  was  a  friend  of  Anwar’s.  He  had  gone  to  

Ajmer alongwith the other co-accused Suleman and Anwar in April  

1992,  for  smuggling  activities.  After  2-3  months  of  his  visit  to  

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Ajmer, upon the instructions of Anwar, the appellant (A-28) had  

reached  Bandra  station  with  one  change  of  clothes.   Shafi  and  

Suleman had come there in a Maruti car, in which he (A-28) had  

also driven alongwith them, till  Linking Road.  From there,  the  

appellant (A-28) alongwith the others had gone to an open theatre  

by way of taking a jeep.   Tiger Memon (AA) had arrived there  

alongwith  Imtiyaz  and  Anwar   in  a  blue  coloured  Maruti  car.  

Anwar  had  instructed  the  appellant  (A-28)  to  follow the  car  of  

Tiger Memon (AA), and they had gone to Panvel and had reached  

the Welcome Hotel.  Anwar  had gone with Tiger Memon (AA).  

Imtiyaz and the appellant (A-28) were directed to reach the tower  

alongwith  the  other  co-accused.  They  had  gone  to  Goregaon,  

Raigad and had slept there at night. At about 3.30 in the morning,  

Tiger  Memon  (AA)  had  come  with  a  truck  carrying  Imtiyaz,  

Anwar,  Dadabhai  (A-17),  Dawoodbhai  (A-14)  and  about  20-25  

labourers.  The appellant (A-28) had woken up and realized that  

there were also two more jeeps and one truck.  Silver bricks were  

removed from the truck that had been brought by Tiger Memon  

and the same were loaded into  all  the vehicles standing at  the  

tower.  The appellant (A-28) alongwith Rafique Madi, had taken  

18 silver bricks and had thereafter, proceeded towards Hyderabad.  

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In Kolhapur, they had handed over the goods to Pradeep Chandra  

Jain and had thereafter, returned to Bombay with an empty vehicle.  

After this, on 5.2.1993 at about 12.30 A.M., when he was  

returning  from  shooting  (as  he  has  claimed  that  he  worked  in  

movies, particularly in stunts), he had been called by Tiger Memon  

(AA), and had been asked to go to Mhasla. Yeda Yakub who was  

also  there,  had given him the  keys  to  a  Matador  tempo,  which  

belonged to Abdul Samad, a decorator in Mahim.  He had gone to  

Mhasla alongwith Suleman (A-18) and Gani (A-11) and there he  

had  met Dawood Bhai who  had taken them near the tower, and  

had told them that the goods had been kept in a pit,  and that  it  

would take some time to remove them. Dawood (A-14) had then  

asked him, alongwith the others to return at  around 7-7.30 a.m.  

with a vehicle.   From there he had gone to the house of a lady  

(school teacher) in Mhasla Village, and had eaten and also rested  

there. In the evening, they had gone to the tower. It was a moon-lit  

night, and at the said time Dawood (A-14) and Dadabhai (A-17),  

alongwith their 10-15 servants had come there and had proceeded  

to load the goods, i.e. 55-60 sacks into the vehicle that had been  

brought by him. Some empty sacks were also put in after folding  

the  same over  the  goods.  They  had then gone  to  the  Welcome  

Hotel at Panvel. Tiger Memon had also come there. Tiger Memon  

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had sent Gani (A-11) and Suleman (A-18) to the Persian Darbar  

Hotel.  Then  Tiger  Memon had gone  inside  the  Welcome Hotel  

with the appellant (A-28), they had met one fair and tall  person  

who had brown eyes. The appellant (A-28) had been introduced to  

him  by  Tiger  Memon  (AA),  and  was  also  directed  to  work  in  

accordance with his instructions. On being asked, the appellant (A-

28) had disclosed that he (A-28) had also seen the Delhi Darbar  

Hotel in Dahisar Check Naka. Then, the fair tall man had told the  

appellant (A-28) to park the said vehicle in front of the hotel, on  

the other side of the road and had told him that one Shakeel (A-59)  

would meet him there, who would then unload the vehicle. As per  

the instructions of Shakeel, the appellant (A-28) had proceeded to  

park the vehicle. A Nepali had then come there, and some persons  

had unloaded the goods from the vehicle and had then brought the  

said  vehicle  back  to   the  Delhi  Darbar  Hotel,  after  which,  the  

appellant (A-28) had left for Virar  in the said vehicle.  

Subsequently on 8.2.1993, at about 6-6.30 in the evening,  

Anwar had met the appellant (A-28) at Bandra Talab naka and had  

asked him to go to Mhasla again.  The appellant (A-28) had gone  

there alongwith Yakub. Tiger Memon (AA) had also arrived there  

after about one hour alongwith a jeep. He had given the jeep to  

Suleman (A-18) and thereafter,  told him to leave.  The appellant  

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(A-28) upon the instructions of Tiger Memon (AA), had returned  

alongwith the vehicle and had handed over the said vehicle to Gani  

(A-11)  and  returned  to  Bandra  Talab.  Anwar  had  then  paid  

Rs.5,000/-  to the appellant  (A-28) in the evening,  in lieu of  the  

aforementioned job. The appellant (A-28) had thus been working  

continuously for Tiger Memon. However, he had been unaware  of  

the contents or nature of the goods. It was only after the Bombay  

Blast  had  taken  place  on  12.3.1993,  and  when  Tiger  Memon’s  

name had appeared in  the newspapers, that the appellant (A-28)  

had realised that he had committed a  mistake by participating in  

the  said  landing  and  transportation,  as  he  thought  that  perhaps,  

instead of silver and gold, it had actually been weapons that were  

smuggled in by him.  He was arrested during the shooting of  a  

movie,  in which he was working.  

150. Confessional Statement of Abdul Gani Ismail Turk (A-11):

His confessional  statement  has  revealed that  the appellant  

(A-28) had been at the residence of Tiger Memon (AA) at the Al-

Husseini  building.   When he  had gone there  on 4.2.1993,  after  

about 4-5 days, he had met Suleman Kasam Ghavate (A-18) and  

Sayyed Abdul Rehman (A-28).  They also had a tempo with them.  

Tiger had given Gani (A-11) a sum of Rs.1 lakh and had asked him  

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to go alongwith the appellant  (A-28) and   Suleman Mohammed  

Kasam Ghavte (A-18), to pay the said amount to Dawood Taklya  

(A-14),  and while returning,  to bring back with them, the black  

soap.  It was the same black soap which had been brought to the  

tower on the night of 3.2.1993.  The tempo was thus loaded by the  

appellant  (A-28), alongwith  Suleman Mohammed Kasam Ghavte  

(A-18) and several others. The same finally contained 59 boxes of  

chemical,  and was brought  to  Bombay,  after  which he had met  

Tiger Memon.  

151. Confessional  Statement of    Dawood Taklya Mohammed    Phanse (A-14):  

In his confession, he has revealed  that after collecting the  

smuggled goods, he alongwith others, including the appellant  (A-

28) had reached the tower.  Tiger Memon (AA)  had instructed all  

the persons to remain outside, except his own men.  Tiger Memon  

(AA) had even asked the watchman (A-62) to leave. Tiger Memon  

(AA) had further instructed them to remove all the empty boxes  

and jute cloth from there, and to burn the same. At the time when  

they had gone inside, they had seen that the men of Tiger were  

opening boxes, and that they were placing  rifles, pistols, bullets,  

hand grenades, bundles of wire with white pencils on top of them,  

and black soap like material on the side.  Tiger Memon (AA) was  

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seen sitting on the side and after counting, he would make notes in  

his  diary.   Baba,  Driver  (A-73)  and  the  appellant  (A-28),  were  

among the men of Tiger Memon who were opening the cavities of  

the jeeps and tempos parked there.   At this time, Tiger Memon  

(AA) took out a pencil like thing made of white steel like material,  

and showed the same to him (A-14)  and to Dadabhai (A-17). He  

had told them that each object was worth Rs.25,000/- and that the  

same could even be used to explode the Oberoi Hotel.    

 152. Confessional Statement of   Sharif Parkar @ Dadabhai (A-17)  :

His  confessional  statement  has  disclosed  that  on  7.2.1993  

Gani (A-11) had come with a tempo.  He had been accompanied by  

Miya  @  Suleman  Ghavte  (A-18)  and  Sayyed  Abdul  Rehman  

Shaikh (A-28).  At this time,  Gani (A-11) had brought Rs.1 lakh  

with him and had given the same to Dawood Taklya (A-14).  The  

smuggled goods were loaded into the tempo, which then left for  

Bombay.

153.Confessional  statement  of  Suleman  Mohammed  Kasam    Ghavate (A-18):

This accused (A-18) in his confessional statement disclosed  

that he reached Mhasla on 6.2.1993 alongwith appellant (A-28) and  

A-11, A-14 and A-17 were already present there.  They put 59-63  

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packets containing powder in a vehicle.  While they were coming  

back they met Tiger Memonn (AA) in Panvel.  On 8 th February,  

1993, A-18 drove a white tempo as directed by Anwar and got off  

at  Panvel.   After  some  time,  another  yellow  tempo,  driven  by  

appellant (A-28) arrived there in which A-18 sat and drove upto  

Mahad.  They reached in front of Besawa Hotel in Mahad where  

another tempo, driven by appellant A-28 appeared and then they  

went to Mhasla where goods were divided in both the tempos.  On  

their way to Panvel, he saw Tiger Memon (AA) in a car and he  

asked  A-18  to  take  the  tempo  to  Chilparakalyan.   When  they  

reached  Chilparakalyan,  they  met  Tiger  Memon  (AA).   Tiger  

Memon drove the tempo himself and came back with an empty  

tempo in half an hour.   

154. Shakil Shahbuddin Shaikh (A-59) and Shahnawaz Khan  

S/o Faiz Mohmed Khan (A-128) in their confessional statements  

have supported the case of the prosecution, as they have stated that  

the  appellant  (A-28)  had  participated  in  the  landing  and  

transportation.    

155. Deposition of Uttam K. Kale (PW.190) -  He deposed that  

he has recorded the confession of appellant (A-28).  On 1.6.1993,  

appellant  (A-28)  expressed  his  willingness  to  make a  voluntary  

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confession  because  of  repentance   and denied  being induced or  

coerced.  He was given 48 hours to re-think and he recorded his  

statement  on  4.6.1993  as  he  was  busy  on  3.6.1993.  The  said  

witness identified the confessional statement of A-28 in court.

156. Deposition of Vijay Govind More (PW.137) – He deposed  

that he was working as labourer at Wangni Tower.  He wrongly  

identified the appellant (A-28) as Anwar and in his statement did  

not name appellant (A-28)  but corroborated in general particulars  

in respect of transportation of goods smuggled  at Shekhadi.  He  

also stated that goods were unloaded at Wangni Tower and shifted  

in another vehicle and at that time Tiger Memon (AA) and Dawood  

Taklya (A-14) among others were present.

157. Dileep M. Katarmal (PW.284) in his statement has deposed  

that A-17 has purchased a few dozens gunny bags from  his shop  

on  10.2.1993,  though  he  did  not  name  the  appellant  (A-28)  

specifically  but  he  corroborated  in  general  particulars  the  

confession of appellant (A-28) wherein he stated that he alongwith  

Najeeb had purchased 1500 sacks from the said shop.   

 158. Considering the material contained in the confession of the  

appellant (A-28), and in those of the aforesaid co-accused, it was  

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held  that  the  same  leads  to  the  inescapable  conclusion  that  the  

appellant (A-28) had infact been involved in the Shekhadi landing  

operation, and had thus committed the offence under  section 3(3)  

TADA.  The  evidence  also  establishes his  involvement  in  the  

commission of the offence of  conspiracy to commit terrorist acts  

since the appellant (A-28) was certainly aware of the nature of the  

contraband material, and had still transported the same, the said act  

amounts  to  furthering  the  object  of  the  conspiracy  to  commit  

terrorist acts. However,  it was held that the appellant (A-28) had  

not  committed  any  acts  and  had  not  participated  in  any  

conspiratorial meetings, to denote that he had been a party to the  

conspiracy  to  commit  the  serial  bomb  Blast  or  the  larger  

conspiracy i.e. the  first charge.  

159. So far as the appellant (A-28) is concerned, his confessional  

statement which stands corroborated by the confessional statements  

of the other co-accused, particularly, Abdul Gani Ismail Turk (A-

11),  Dawood  @  Dawood  Taklya  (A-14),  Imtiyaz  Yunusmiya  

Ghavte (A-15), Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)  

and  Shahnawaz  Khan  (A-128)   reveals  his  involvement  in  the  

Shekhadi  landing and  further  establishes  that  he  had been  fully  

aware  of  the  nature  of  contents  of  the  contraband and had still  

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transported the same.  Such an act tantamounts to furthering the  

object  of  the  conspiracy  to  commit  terrorist  acts.  Taking  into  

consideration his close association with Tiger Memon (AA) and his  

associates, with respect to their smuggling activities, it is difficult  

to believe that he was unaware of the nature of the contents. Thus,  

we are of the view that he has rightly been convicted under Section  

3(3) TADA by the Designated Court.  

                    III.  Sajjad Alam @ Iqbal Abdul Hakim Nazir (A-61) :

160. The appellant (A-61) has been convicted under Section 3(3)  

TADA on  two  counts,  and  has  been  awarded  7  years  rigorous  

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

payment of fine, to suffer suitable RI.  

161. The  appellant  (A-61)  has  been  charged  for  criminal  

conspiracy, and in addition thereto, has also been charged under  

Section 3(3) for his participation in the landing at Shekhadi on 3rd  

and  7th February,  1993  and  in  the  transportation  of  arms,  

ammunition, hand grenades and explosives like RDX which were  

to be used in the Bombay Blast on 12.3.1993, and further, for using  

his auto rickshaw bearing registration No.MH-06-2243 to bring the  

aforementioned smuggled items to Bombay. He has been acquitted  

of the first charge of conspiracy, however, he has been convicted of  

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the second charge under Section 3(3), and has been sentenced as  

referred to hereinabove.  

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

submitted that his confession had not been made voluntarily, and  

that the same had been retracted on 3.12.93 and therefore, must not  

be  taken  into  consideration.  Hence,  the  appeal  deserves  to  be  

allowed.

163. Shri Mukul Gupta, learned senior counsel for the respondent,  

has  submitted  that  even  if  the  confessional  statement  of  the  

appellant (A-61) was retracted, the same has been corroborated by  

the confessional statements of the other co-accused, as well as by  

the  depositions  of  various  witnesses.  Therefore,  this  appeal  

deserves to be dismissed.  

164. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

165. Evidence against the appellant (A-61):

(a)      Confessional statement of the appellant (A-61)

(b) Confessional statement of Dawood Taklya (A-14)

(c)      Confessional statement of Khalil Ahmed Sayed Ali Nasir (A-42)

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(d)      Confessional statement of Imtiyaz Yunusmiya Ghavte (A-15)

(e)      Confessional statement of Muzammil Umar Kadri (A-25)

(f) Confessional statement of Tulsiram Dhondu Surve (A-62) (g)Deposition of Vijay Govind More (PW-137)

          (g) Depositions  of  Chandrakant  Afaraz  (PW-111),  

Vyankatesh Hirba (PW-588) and Shridhar Gawade (PW- 151).

166. Confessional Statement of    Sajjad Alam @ Iqbal Abdul    Hakim Nazir (A-61):

His own confession has been recorded by Shri K.L. Bishnoi,  

DCP (PW.193), wherein he has revealed that he had taken certain  

persons in his auto rickshaw bearing No. MH-06-2243, to the place  

of  the  landing.   He  had  seen  that  certain  materials  had  been  

removed in gunny bags from a jeep i.e. 16 rifles and 32 cassettes  

and  that  the  same  were  taken  into  a  room where  the  appellant  

(A.61) was not allowed to enter.  He had been paid Rs.4,000/- for  

participating in two landings.

He has further revealed that on 9.2.1993 Dawood Taklya (A-

14) had  met him at the Mhasla S.T. Stop and had asked him to  

come to Mehandari.  He (A-61) had taken him to Mehandari where  

they met Khalil Nazir and Muzammil (A-25). Here,  Dawood had  

told  Muzammil  to  hand  over  to  him  3  rifles  and  6  cassettes.  

Muzammil had then handed over the said weapons in gunny bags.  

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The appellant (A-61), Khalil and Dawood Taklya (A-14) had gone  

alongwith the said arms, to Lonery Phata.  After sometime Tiger  

Memon  (AA)  had  arrived  there  in  his  blue  Maruti  car  and  

thereafter, the said goods were shifted to his car.

167. Confessional Statement of Dawood Taklya (A-14):       

He  has  disclosed  that  on  the  date  of  the  landing,  Tiger  

Memon (AA) had sent him to the  place of landing alongwith some  

persons  who had also  been given guns  by Tiger  Memon (AA).  

Such armed persons were spread over all sides.  After sometime  

the said goods had arrived in a trawler.   Persons who had been  

called  from  the  village  then  began  to  unload  these  goods  and  

bringing them to shore.  Khalil  and Iqbal  (A-61)  had also  come  

there with trucks. The entire cargo was loaded into two trucks and  

thereafter, they all come to T.V. Tower, where the said goods were  

unloaded.  Some  time  after  this,  Tiger  had  instructed  them  to  

remove all the empty boxes and jute bags from there and to burn  

the same. When they had gone inside, they had seen the men of  

Tiger opening boxes which contained rifles, pistols, bullets, hand  

grenades, black soap and bundles of wires with white pencils on  

top.    

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168. Confessional Statement of Khalil Ahmed Sayed Ali Nasir  (A-42):      

 His statement has disclosed that the aforementioned goods  

were smuggled.  He had gone to the house of Dawood Taklya (A-

14) in the afternoon at about 4 p.m. to inform him that the landing  

of the said goods would take place that night, and that appellant  

(A-61)  should  thus  be  sent  to  Dawood  Taklya   at  7  p.m.  by  

Rickshaw.   On the  said  day he  had sent  appellant  (A-61)  from  

Mehandari to Mhasla in  his Rickshaw.

169. Confessional  Statement  of  Imtiyaz  Yunusmiya  Ghavte  (A-15):      

He  has  deposed  about  the  landing  at  Shekhadi  in  early  

February.   He had gone to Tiger’s  residence at  the Al-Husseini  

Building, and it was there that he had learnt of the said landing.  

Shaffi and Rafiq were also present there at such time. From there,  

they  had  gone  to  Shekhadi  for  the  landing  alongwith  a  large  

number of persons, and after the landing, the goods were brought  

to the Wangni Tower.  The appellant (A-61) had been present at  

the Tower with his Rickshaw.  

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170. Confessional  Statement  of  Muzammil  Umar Kadri  (A- 25):      

His confessional statement has disclosed that on 3.2.1993, in  

the evening at about 7.30 p.m. he had been told by Khalil from  

Mehandari,  that  he should  stay  alongwith  Suleman (A-18),  at  a  

particular  house.   When he had gone there, he had found  Sajjad  

Alam (A-61) Rickshawala there. The appellant (A-61) had come  

there after having dropped Dawood Taklya (A-14) and Khalil to  

Shekhadi.   He  has  further  furnished  other  details  regarding  the  

landing on 7.2.1993.  He has said that at 11.30 p.m., Dawood (A-

14)  had come in the rickshaw of  the appellant  (A-61),  and had  

collected 3 rifles and 6 cassettes which had been kept with him in  

January,  1993.   The  remaining  13  rifles  and  26  cassettes  were  

recovered by the police from his house later on.   

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

He is a government employee and working at Wangni tower.  

He  has  identified  A-61  and  named  him  as  a  participant  in  

smuggling, landing and transporation.  

172. Deposition of Vijay Govind More (PW-137):

He has deposed that he was a labourer working at the Tower,  

and has identified the appellant (A-61) in court as the person who  

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had come to the Tower quite often. He has also named him as a  

participant in smuggling, landing and transportation.  

173.  Chandrakant Afaraz (PW-111), Vyankatesh Hirba (PW-

588),  PSI  of  the  Mhasla  Police  Station  and  Shridhar  Gawade  

(PW-151) have proved the Seizure Memo of the autorickshaw and  

the related panchnama.

174. After due consideration of the entire evidence on record, the  

Designated Court came to the conclusion that the appellant (A-61)  

being involved in the Shekhadi landing operation, has committed  

the offence under section 3(3) TADA. The appellant (A-61) was a  

close  associate  of  Dawood  Taklya  (A-14)  and  had  participated  

and/or  assisted  Dawood  Taklya  (A-14)  in  effecting  the  said  

landing. The appellant (A-61) had also taken Dawood Taklya (A-

14) and his other associates to the Shekhadi coast, at odd hours of  

the night for the purpose of the landing operation. Even prior to the  

said  landing,  the  appellant  (A-61)  had  been  involved  in  the  

concealment  of  rifles  and magazines  at  residence  of  Muzammil  

Umar Kadri  (A-25),  and thereafter  on 9.2.1993,  had transported  

rifles and magazines from the house of Muzammil Umar Kadri (A-

25) and had handed over the same to Tiger Memon (AA) at Lonery  

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Phata. The appellant (A-61) had also received an amount of Rs.  

4000/- for the work done by him in the landing operation.

175. The evidence  on record  clearly  establishes  the  above  and  

thus,  the  fact  that  he  was  one  of  the  main  persons  who  was  

responsible  for  effecting the said landing.  Hence,  he has rightly  

been convicted by the learned Special  Judge under Section 3(3)  

TADA, and no interference is required in the said order.  

IV.  Tulsi Ram Dhondu Surve (A-62) :

176. He  was  a  watchman  at  the  Wangni  Tower  which  was  

permitted to be used by the appellant (A-62), for the reloading of  

weapons and explosives from one vehicle to another.  The appellant  

(A-62) has been charged for criminal conspiracy, and in addition  

thereto, for his participation in the landing and transportation of  

arms, ammunition, hand grenades and explosives like RDX to be  

used in the Bombay blast on 12.3.1993.

He has been further charged with abetting and facilitating  

acts that were preparatory to the main terrorist acts, in January to  

February  1993  at  Shekhadi  and  places  close  by,  as  well  as  at  

Wangni  Tower,  District  Raigad.  The  main  terrorist  acts  were  

executed in Bombay on 12.3.1993 in the form of multiple bomb  

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Blast.  This was done by the appellant (A-62),  permitting Dawood  

@ Dawood Taklya (A-14), Tiger Memon (AA) and his associates  

to  use  the  said  premises  for  the  purpose  of  facilitating  the  

smuggling  and  landing  of  arms,  ammunition,  handgrenades  and  

explosives like RDX, which were smuggled into the country by  

Tiger Memon and his associates on 3rd and 7th February, 1993. The  

tower was used for re-loading and transportation of the contraband  

into Bombay and other places.   

He has further been charged with permitting Dawood Taklya  

(A-14), Tiger Memon (AA) and his associates to conceal 59 bags  

of RDX explosives in his agricultural field which were removed  

subsequently by the terrorists.     

He has further been charged, being a government servant, of  

having failed to  furnish information in  relation to the smuggled  

weapons, which he was legally bound to do and can therefore, be  

said to have committed the offence punishable under Section 202  

IPC.   

177. The appellant (A-62) has been acquitted of the first charge.  

However, he has been given the sentence of 9 years alongwith a  

fine of Rs.50,000/- and in default of payment of fine, he has been  

ordered to suffer further RI for one year under Section 3(3) TADA,  

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and of  6 months alongwith a fine of Rs.5,000/- under Section 202  

IPC.  

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

submitted that the appellant (A-62) was a watchman at the Wangni  

tower  and  that  he  had  no  knowledge  of  the  contents  of  the  

contraband goods.  Moreover,  he has served over 6 years  of  the  

sentence  awarded to  him.  He should at  most  therefore,  be tried  

under Section 202 IPC. Hence, the appeal deserves to be allowed.

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

State  has  submitted  that  he  was  aware  of  the  contents  of  the  

smuggled goods as the same had been unloaded in front of him.  

Therefore, the appeal deserves to be dismissed.  

180. We have heard learned counsel for the parties and perused  

the record.  

181.        Evidence against the appellant (A-62):

(a) Confessional statement of the appellant (A-62)

(b) Confession of Dawood Taklya (A-14)

(c) Confession of Sharif Abdul Gafoor Parkar (A-17)

(d) Confession of Munna @ Mohammed Ali Khan (A-24)

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(e) Confession of Rashid Umar Alware (A-27)

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

(g) Confessional statement of Sajjad Alam (A-61)

(h) Deposition of Harish Chandra Surve (PW.108)

(i) Deposition of Vijay Govind More (PW.137)

(j) Deposition of Ravindra Sarant (PW.145)

(k) Deposition of Vyankatesh Hirba (PW.588)  

182. Confessional Statement of Tulsi Ram Dhondu Surve (A- 62):

In  his  confession,  Tulsiram  Dhondu  Surve  (A-62)  has  

disclosed that he had been working as a watchman at the Tower  

alongwith other employees, namely, Harish Chandra Surve (PW-

108) and Vijay Govind More (PW-137).  He has disclosed that one  

and a half years prior to the recording of his statement, one Sharif  

Adhikari of Mhasla had brought Dawood Phanse (A-14) to him,  

who  had  asked  the  said  appellant  (A-62)  to  help  them  in  the  

smuggling of silver and other goods, by allowing them to keep the  

same in the Tower for some time, in return for some consideration,  

and that he had agreed to the same.  At night, 9-10 persons had  

come alongwith Tiger  Memon (AA),  and one truck and a  jeep.  

They had loaded the goods into a tempo from the truck.  At the said  

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time, Tiger Memon (AA) and his associates had been armed with  

guns and pistols, and after completing the loading they had all left  

the Tower.  The appellant (A-62) had been paid Rs.1000/- for each  

occasion,  which  he  had  shared  with  other  persons.   He  also  

received  10  acres  of  land  in  his  name,  which  was  a  benami  

property, as the same belonged to Dawood (A-14).  He has further  

disclosed that he had also been paid a sum of Rs.2000/- and for two  

or more trips, a sum of Rs.6000/- which he had distributed among  

others.

183. Confessional Statement of Sajjad Alam (A-61) :

In his confession, he has corroborated the evidence available  

as  regards  the  meeting  with  Tulsiram  Dhondu  Surve  (A-62).  

Though  Dawood  Taklya  (A-14)  did  not  name  him,  he  has  

corroborated the evidence of the other co-accused by stating that  

A-62  had  been  helping  them  at  the  Tower  for  loading  and  

unloading etc.    Khalil  Ahmed (A-42)  has stated  that  when the  

smuggled goods were  being reloaded,  the  same consisted  of  59  

gunny bags containing a cement like black soap, 91 boxes and 7  

long canvas bags.  Vijay Govind More (PW-137) has deposed that  

the landing had taken place in February 1993, and that the goods  

had then been brought to the Tower and that from there, the same  

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were shifted into the jeep.  He has identified the appellant (A-62) in  

court.  Ravindra Sawant (PW-145) was the panch witness for the  

recovery of goods at the Tower, and has also identified A-62 in  

court.     

184. Deposition of Vijay Govind More (PW.137)

He  deposed  that  at  the  relevant  time  he  was  working  as  

labourer at Wangni Micro Wave Tower since 1986 to 1993.  In  

October  1992  he  was  on  duty  at  Wangni  Tower  alongwith  

Harishchandra Surve.  On that day appellant (A-62) was also on  

duty at the Tower and the appellant (A-62) told them that one party  

shall come at the Tower on the said day in the night.  Appellant (A-

62)   after  his  duty  left  Wangni  Tower  for  his  residence  and  

returned  at  about  7.30  to  8.30  p.m.   At  about  9.30  p.m  three  

persons came by a Maruti car  at Wangni Tower.   Out of  them,  

Sarfaraj  Phanse  called  for  appellant  (A-62)  and  asked  him  to  

arrange  for  tea.   Appellant  and  the  witness  prepared  tea.  

Subsequently,  Tiger  Memon,  Dawood  Phanse,  Sharif  Adhikari,  

Abdul Gharatkar, Dadamiya Parkar also came there.  At about 11  

p.m., a truck came at Wangni Tower.  Following the same, one  

tempo and two jeeps  also  arrived.   The goods which had been  

brought in the said truck were loaded into jeeps and tempo and  

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then all the vehicles left the Tower.  Again in February 1993 when  

the witness was on duty, the appellant (A-62) told him that goods  

of Dawood Phanse had to arrive.  After the duty hours, appellant  

(A-62) went to his house and again returned to the tower in the  

evening.  At about 8.30 p.m., three persons came by a car.  One of  

them was Iqbal whom the witness had seen at Wangni Tower in  

earlier trip alongwith others.  After about 11 p.m., one truck, two  

jeeps  and a  tempo arrived at  Wangni  Tower.   Dawood Phanse,  

Sharif  Adhikari,  Abdul  Gharatkar,  Dadamiya  Parkar  also  came.  

Just  thereafter,  Dawood Phanse and his companions arrived in a  

jeep.   This  witness  identified  the  appellant  (A-62)  and  other  

accused, namely, accused nos.14, 17, 28, 42, 60, 61 and 73.  

  185. After due consideration of the entire evidence on record, the  

Designated Court came to the conclusion that as the appellant (A-

62),  was  involved  in  the  Shekhadi  landing  operation,  he  has  

committed the offence under  section 3(3) TADA. The appellant  

(A-62) being a watchman of the Wangni Tower i.e.  government  

premises,  had  allowed  the  same  to  be  used  for  purpose  of  

facilitating the smuggling and landing of arms, ammunition, hand  

grenades and explosives that was organized by Tiger Memon (AA)  

and his associates. The appellant (A-62) had also permitted  the co-

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accused to conceal 59 bags of RDX explosives in his field. Hence  

he was held  guilty for the offence punishable under Section 3(3)  

TADA.

186. So  far  as  appellant  (A-62)  is  concerned,  the  evidence  on  

record, particularly  the confessional statement of  the appellant (A-

62),  which  has  been   duly  supported  by  the  other  material  on  

record,  clearly  reveals  that  being  a  watchman  of  government  

premises i.e. Wangni Tower  he had allowed the same to be used  

for the purpose of facilitating the smuggling and landing of arms,  

ammunition, handgrenades and explosives as organized by Tiger  

Memon (AA) and his associates.  The evidence further establishes  

his involvement  in concealing 59 bags of RDX explosives in a  

field existing in his name. Thus, he has rightly been convicted by  

the learned Special Judge under Section 3(3) TADA and Section  

202 IPC.  Being a government servant, he has intentionally omitted  

giving information to the authorities about the offences committed  

in  his  presence,  which  he  was  legally  bound  to  do.   Thus,  no  

interference is required in his order of punishment.  

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V.  Gulam Hafiz Shaikh @ Baba (A-73):  

187.   The appellant  (A-73) has been charged for  the offence of  

criminal conspiracy and in addition thereto, for his participation in  

the  landing  at  Shekhadi  and  the  transportation  of  arms,  

ammunition, hand grenades and explosives like RDX to be used in  

the Bombay Blast on 12.3.1993, under Section 3(3) TADA and has  

further  been  charged  under  Section  6  TADA  for  the  

possession/storage  of  arms,  ammunition  and  explosives  in  his  

garage, in contravention of the provisions of the Arms Act and the  

Rules  thereunder,  by  transporting  such  unauthorized  arms,  

ammunitions and explosives from Shekadi to Bombay.   

         He has been found guilty of the charge under Section 3(3)  

TADA and has been awarded the sentence of 8 years alongwith a  

fine of Rs.10,000/-, and in default of payment of fine, further RI  

for two months.  He has further been found guilty under Section  

3(3) TADA for  facilitating the landing and transportation of the  

aforementioned contraband, and has been awarded RI for 6 years  

alongwith a fine of Rs.5,000/- and in default of payment of fine, RI  

for one month.  He has also been found guilty under Section 6 of  

TADA for possession and storage of the said weapons in his garage  

and  for  this  he  has  been  given  a  sentence  of  RI  for  8  years,  

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alongwith a fine of Rs.10,000/- and in default,  further RI for two  

months.  All the sentences have been directed to run concurrently.

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

submitted that there are contradictions in the statements of the co-

accused,  and  that  therefore,  they  should  not  be  relied  upon.  

Moreover,  the  confessional  statements  of  the  co-accused  were  

taken at odd hours, and there is no other corroborative evidence  

available  against  him.  Therefore,  the  appeal  deserves  to  be  

allowed.

189.  Shri Mukul Gupta, learned senior counsel for the respondent  

has submitted that the appellant (A-73) was aware of the nature of  

the goods that  he had kept  in  the false  cavities  of  the vehicles.  

Moreover,  his  confession  has  been  corroborated  by  various  co-

accused. Therefore, the appeal deserves to be dismissed.

190. We have heard learned counsel for the parties and perused  

the record.  

191. Evidence against the appellant (A-73):

(a) Confessional  Statement  of  Gulam  Hafiz  Shaikh  @  Baba  (A-73)

(b) Confessional statement of Dawood Taklya (A-14)

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(c) Confessional  statement  of  Imtiyaz Yunusmiya Ghavte (A- 15)

(d) Confessional  Statement  of  Sharif  Abdul  Gafoor  Parkar  @  Dadabhai (A-17)

(e) Confessional statement of Mohammed Rafiq (A-46)

(f) Deposition of Vijay Govind More (PW.137)

(g) Deposition of Vinod Lokhande (PW.183)  

192. Confessional Statement of    Gulam Hafiz Shaikh @ Baba    (A-73)

. The confession of the appellant (A-73) was recorded by Shri  

Vinod  Balwant  Lokhande,  D.C.,  Airport  Zone,  Bombay  on  

15.5.1993  and  17.5.1993.   In  his  confessional  statement,  the  

appellant  (A-73)  has  disclosed  that  he  has  been working in  the  

garage of his maternal uncle since his childhood.  His uncle had  

handed over the garage to him 27 years ago.  He had been  running  

the  said  garage  for  repairing  vehicles.   He knew Tiger  Memon  

(AA)  and  his  associates  Sunil,  Shaffi,  Imtiyaz,  Anwar,  Rafique  

Madi, Raju Marwari, Riyaz, Majeed etc.  They would do the work  

of smuggling silver.  The same was unloaded at the sea-shore near  

the village Mhasla.  The goods were to be brought by trucks to the  

Tower, and the contraband were then to be unloaded and concealed  

in  the  cavities  of  tempos  and  jeeps  there.   The  work  of  the  

appellant (A-73) was to take the tempo or the jeep full of smuggled  

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silver  to  its  destination,  and  after  this,  he  was  paid  a  sum  of  

Rs.2,000 to 3,000 for each transportation/landing.  In the last week  

of  January,  1993  he  had  reached  the  Welcome  Hotel,  Panvel  

alongwith the jeep at 8.30 p.m.  upon receiving instructions to this  

effect.  Four  jeeps  and  a  Maruti  car  were  already  parked  there.  

Tiger  and Sunil  were  also  sitting  in  the  jeep.   The goods were  

smuggled  in  the  next  day  with  the  help  of  a  large  number  of  

persons including Tiger, Shaffi, Anwar, Imtiyaz, Gani and Rafique  

etc.  The truck was then unloaded, and all goods were kept in the  

tempos  and  jeeps.   There  were  several  green  coloured  boxes  

containing black soap, and cartridges.   The appellant (A-73) had  

parked the  tempo full  of  smuggled  goods outside  his  garage  in  

Islampura.  The appellant (A-73) had then gone  to Persian Darbar  

Hotel upon being called by Tiger Memon.  The appellant (A-73)  

was asked by Tiger Memon to take the tempo outside his garage to  

Sankhvi street, opposite Bata Company, near Lokhandi gate near  

the place where Chiliyaki Hotel was situated.  He was informed  

that there would be a boy at the gate who would give him a signal  

with  a  white  handkerchief  upon  seeing  the  said  tempo.  The  

appellant (A-73) was told to take the vehicle as per his direction,  

and unload the goods there.  The next day, the appellant (A-73) had  

taken the tempo to Sankhvi Street  to the aforesaid address,  and as  

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per the direction,  the goods were unloaded there.   He had been  

paid Rs.1000 for this work.  The appellant (A-73) has confessed  

that he had participated in landings of silver, and that it was only  

on one occasion that weapons had been smuggled.   

193. Abdul  Gani  Ismail  Turk  (A-11),  Dawood  @  Dawood  

Taklya (A-14), Imtiyaz Yunusmiya Ghavte (A-15), and Mohd.  

Rafiq (A-46) have supported the case of the prosecution by stating  

that  the  appellant  (A-73)  participated  in  the  landing  and  

transportation of the smuggled goods including arms, ammunition  

etc.      

194. Confessional Statement of Sharif Abdul Gafoor Parkar  @ Dadabhai (A-17)  

         In his confessional statement, he has disclosed details of the  

incident dated 28th /29th  February, 1993.  He  has stated that at 1.30  

– 2.00 a.m., the smuggled goods had been were brought in a lorry  

to  the  tower,  and that  Tiger  Memon (AA),  Yakub  (AA),  Javed  

(AA), Dawood Taklya (A-14) and their men and others had also  

come there. Shafi, Anwar and driver Baba  (appellant A-73) had  

opened  the  boxes   and  the  same contained  hand bombs,  wires,  

rifles, pistols and bullets.  The appellant (A-73) and others had put  

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all  the  weapons  and  explosives  into  the  cavities  of  jeeps  and  

tempos.  The goods had also contained a chemical, black soap.   

195. Deposition of Vijay Govind More (PW.137)

He  was  labourer  at  Wangni  Tower  and  he  had  clearly  

deposed  that  appellant  (A-73)  was  involved  in  the  loading  and  

unloading of smuggled goods at Wangni Tower.  He identified the  

appellant  (A-73) in  court.

 196. Deposition of Vinod Lokhande (PW.183)  

He has recorded the confessional statement of the appellant  

and he deposed that it was voluntary and had been made strictly in  

accordance with law and the confessional statement was forwarded  

to the Chief Judicial Magistrate, Alibagh.

197. In view of the above, we have to consider whether in light  

of the evidence on record, the conviction of the appellants can be  

sustained.  

198. All  the  material  on  evidence  was  collected  and  after  

appraisal, the Special Judge came to the conclusion that A-73 had  

in fact been involved in the landing operations of the contraband  

substances.  The  evidence  against  appellant  (A-73)  includes  his  

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own confession wherein he has confessed to being fully aware of  

the  fact  that  the  contraband  were  shifted  from  trucks  to  other  

vehicles,  which  contained  arms,  ammunition  and  RDX.  The  

Designated Court came to the conclusion that his act of driving the  

vehicle containing such material could not be for any purpose other  

than to aid and abet terrorist activities.  

However, the Designated Court has stated that the said acts  

had been  committed by him in the early phases of the conspiracy,  

even prior to Tiger Memon (AA) deciding the target of the Blast.  

The court also went on to say that after this particular incident A-

73 had not been involved in any landing job. Therefore, he (A-73)  

cannot  be  held  guilty  for  the  larger  conspiracy,  for  which  the  

charge firstly, was framed against him.

199. So far as appellant (A-73) is concerned, like other appellants,  

his involvement and participation in the landing operations of the  

contraband  substances  has  been  clearly  established.   His  own  

confessional statement has revealed that he, being fully aware of  

the contents of the contraband, shifted the same from the truck to  

other vehicles and that in spite of the fact that he knew that the  

contraband contained arms, ammunition and RDX, he continued to  

be associated with the other co-accused.  Therefore, he has aided  

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and abetted terrorist activities, and we do not see any cogent reason  

to  interfere  with  his  order  of  conviction  as  recorded  by  the  

Designated Court.  

200. In view of the above, we do not find any substance in these  

appeals and the same stand dismissed.     

201. In case,  if  the appellants  are  on bail,  their  bail  bonds are  

cancelled and they must surrender within four weeks from today,  

failing  which  the  Learned  Designated  Court  under  TADA shall  

take  them into  custody,  and  send  them to  jail  to  serve  out  the  

remaining part  of  their  sentences,  as  have been awarded by the  

learned Designated Court under TADA.

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CRIMINAL APPEAL NO.600 OF 2011

State of Maharashtra                            …Appellant

Versus

Sayed Abdul Rehman Shaikh     ... Respondent

202.       This appeal has been preferred against the judgment and  

order  dated  2.8.2007  passed  by  Special  Judge  of  the  the  

Designated Court under the TADA for Bombay Blast Case No.1 of  

1993, by which the respondent has been convicted under Section  

3(3)  TADA,  and  awarded  rigorous  imprisonment  for  7  years  

alongwith a fine of Rs.25,000/-, and in default of payment of fine,  

to suffer further RI for six months, and  secondly RI for 7 years  

under Section 3(3) TADA, but  had been acquitted of the charge of  

larger conspiracy.

Hence, this appeal.  

203. Heard  rival  submissions  by  counsel  for  both  parties  and  

perused the evidence on record.  

204. The evidence against the said respondent includes his own  

confession wherein he had disclosed that he was a driver and was  

acquainted with Tiger Memon (AA), Mohd. Rafiq (A-46), Anwar  

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(AA),  Abdul  Gani  Ismail  Turk  (A-11),  Suleman  Mohd.  Kasam  

Ghavate  (A-18)  and  Uttam  Potdar  (A-30).   In  April  1992,  the  

accused  (A-28)  had  gone  along  with  Suleman  Mohd.  Kasam  

Ghavate  (A-18)  and  Uttam  Potdar  (A-30)  to  Ajmer  for  taking  

silver.  On 5.2.1993 Suleman Mohd. Kasam Ghavate (A-18) took  

the accused (A-28) to Tiger Memon (AA) who asked him to go to  

Mhasla.  Yeda Yakub gave the accused (A-28) the keys of a tempo  

in  which  the  accused  (A-28)  alongwith  Suleman Mohd.  Kasam  

Ghavate  (A-18)  and  Abdul  Gani  Ismail  Turk  (A-11)  went  to  

Mhasla.   On  the  next  day,  at  Mhasla  the  accused  (A-28)  met  

Dawood Taklya (A-14) who took him alongwith other co-accused  

to Wangni Tower and told them that the goods are to be dug out  

from a pit.  After the goods were taken out, they were placed in the  

vehicle  in  the  presence  of  Dawood Taklya  (A-14).   Then,  they  

came to Nagothane (near Pen) and stayed in a hotel.  The accused  

(A-28) alongwith Tiger Memon (AA) went inside Welcome Hotel  

wherein they met a man who told the accused (A-28) to park the  

vehicle in front of Hotel Delhi Darbar at Dahisar Check naka. The  

accused (A-28) parked the vehicle as directed and the goods were  

unloaded there with the help of some persons.  The accused (A-28)  

again met Tiger Memon (AA) on 8.2.1993 and went to Mhasla  

alongwith Anwar and Tiger Memon and brought 1500 sacks from  

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one Gujarati in Pen.  On 11.2.1993 Tiger Memon met them at Goa  

Road and asked  Suleman Mohd. Kasam Ghavate (A-18) and the  

accused  (A-28)  to  accompany  him  till  Kalyan,  wherein  they  

handed  over  the  vehicle  to  Tiger’s  man,  namely,  Usman  Gani  

Choudhary.  The accused (A-28) was paid Rs.5,000/- for the said  

job.   

205. The  said  confessional  statement  was  duly  supported  and  

corroborated by the confessional statements of Abdul Gani Ismail  

Turk  (A-11),  Dawood  Taklya  (A-14),  Suleman  Mohd.  Kasam  

Ghavate  (A-18)  and Uttam Potdar  (A-30),  Sharif  Abdul  Gafoor  

Parkar (A-17) and Shakil Shabbuddin Shaikh (A-59).   

206. Uttam M.  Kale  (PW.190)  also  supported  the  prosecutions  

case to the extent that the confessional statement was given by the  

accused  (A-28)  voluntarily  and  it  had  been  recorded  strictly  in  

accordance with law. The deposition of Sanjay Pandey (PW.492)  

and Vijay Govind More (PW.137) also supported the case of the  

prosecution.   

207. After  appreciating  the  evidence  on  record  the  learned  

Designated Court recorded the conclusion as under :-

“574)   Thus  in  light  of  the  reasoning  given  aforesaid, it will be difficult to accept submission  

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of Ld. Chief P.P. to give maximum punishment to  A-18 & 28 for the reasons canvassed by him and  dealt  earlier  and  so  also  for  any  other  reason,  which  is  also  precisely  absent.  At  the  cost  of  repetition, it will be necessary to say that even it is  accepted that smuggling of arms, ammunition and  explosives  substance,  even  accepted  to  be  very  heinous merely on said count awarding maximum  punishment  to  each  of  the  accused  involved  in  such landings de hors considering the extent of act  committed  by  him  and  thereby  assessing  the  element of criminality exist in him would amount  allowing  oneself  to  be  swayed  by  feeling  and  would amount of having acted without any logical  reasoning  behind  it.  Having  regard  to  the  same  while awarding punishment to A-18 & 28 it will be  necessary to take into account the gravity of the act  committed by both of them and so also the other  circumstances relevant to same as urged on their  behalf or even otherwise.”     

208. The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

209. The instant case is similar as that of Suleman Mohd. Kasam  

Ghavate (A-18) and therefore, we are not in a position to take a  

view different to the view taken in that case.

The appeal lacks merit and is accordingly dismissed.    

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CRIMINAL APPEAL NO. 406 OF 2011

State of Maharashtra                       …Appellant

Versus

Gulam Hafiz @ Baba       … Respondent                   

   210. This  appeal  has  been  preferred  against  the  judgment  and  

order dated  2.8.2007 passed by Special Judge of the Designated  

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

which  the   respondent  has  been  convicted  under  Section  3(3)  

TADA and awarded rigorous imprisonment for 8 years with a fine  

of Rs. 10,000/- and in default of payment of fine, to suffer further  

RI for 2 months on the first count and on second count he has been  

awarded under Section 3(3) TADA, a rigorous imprisonment for 6  

years with a fine of Rs.5,000/- and in default of payment of fine, to  

suffer further RI for one month.  

211. In  addition  to  the  general  charge  of  conspiracy  the  

Respondent (A-73) was charged for participating alongwith his co-

conspirators in the smuggling and landing of arms and ammunition  

at Shekhadi and participating in transportation of the same from  

Shekhadi to Bombay for committing terrorist  activities.  He was  

further  charged  under  the  provisions  of  Arms  Act  for  

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possessing/storing the weapons at  his  garage and unauthorisedly  

transporting smuggled weapons from Shekhadi to Bombay.

212. After  conclusion  of  the  trial,  the  respondent  had  been  

convicted under Section 3(3) TADA, but had been acquitted of the  

first charge of conspiracy.

Hence, this appeal.  

213. Heard rival  submissions  made by counsel  for  both parties  

and perused the evidence on record.

214. The learned Special Judge after considering the evidence on  

record against the respondent recorded the following findings:-

“61-C)    Thus  considering  material  in  the  confession of  A-73 and aforesaid co-accused the  same leads to the conclusion of A-73 also being  involved in Shekadi landing operations denoted by  said  material  and  as  such  having  committed  offence under Section 3(3) of TADA for which he  is  charged  at  head  2ndly.   Similarly,  considering  said evidence in proper perspective and same and  particularly  own  confession  of  A-73  squarely  denoting that he was fully aware that contraband  goods  which  were  shifted  from  trucks  lo  other  vehicles  where  arms,  ammunition,  handgrenades  and RDX etc. and still himself having transported  the same to Bombay by driving vehicle and even  in  Bombay  having  committed  further  acts  regarding  contraband  goods  the  same  clearly  indicates that his act were directed to further object  of  conspiracy  to  commit  terrorist  act.  No  doubt  that he has received amount of Rs.1 thousand for  

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work  effected  by  him.  However  the  same  will  never change character of act committed by him.  Similarly  the  acts  committed  by  him  were  obviously  for  purposes  of  aiding  and  abetting  terrorist  accused  who  were  to  use  the  same  for  commission  of  terrorist  act.  A-73  having  committed said act  by contravening provision of  Arms and Explosive Act he was also required to be  held liable for offence under Section 6 of  TADA  for  which  he  charged  at  head  3rdly.   However  unlike  other  accused  involved  in  transportation  alike A-73, A-73 after Shekhadi landing operation  had  not  participated  in  commission  of  any  act  furthering object of any conspiracy.  The acts were  committed  by  him during  early  phase  i.e.  much  prior  to  even  Tiger  Memon  fixing  target  for  commission of serial blast.  A-73 had never been  party to any conspiratorial meeting after effecting  said  landing  job  nor  was  involved  in  any  of  operation  thereafter  effected  in  pursuance  of  conspiracy to commit serial blast.  In view of same  though A-73 is found to be guilty for offence of  conspiracy  the  same  would  be  conspiracy  to  commit terrorist act punishable under Section 3(3)  of  TADA  or  in  other  words  he  cannot  be  held  liable  for  larger  conspiracy  for  which  charge  at  head 1stly is framed against him.”

215. In view of the fact that there is no evidence to show that the  

respondent  (A-73)  ever  participated  in  any  of  the  conspiratorial  

meetings  after  the  said  landing,  or  was  involved  in  any  of  the  

operation thereafter in pursuance of the conspiracy to commit the  

serial  Blast,  he  could  be  punished  only  for  smaller  conspiracy  

under  Section 3(3)  TADA and not  for  the larger conspiracy for  

which  the  charge  no.1  had  been  framed.   In  the  facts  and  

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circumstances  of  the  case,  the  respondent  (A-73)  had  been  

convicted and awarded sufficient punishment.

216. The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

217.         In view of the above, we do not find any cogent reason to  

hold that  findings recorded by the learned Designated Court are  

perverse, warranting any interference by this Court.  The appeal  

lacks merit and is accordingly dismissed.

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CRIMINAL APPEAL NO. 408 OF 2011

State of Maharashtra                           …Appellant

Versus

Suleman Kasam Ghavate     ... Respondent

218.          This appeal has been preferred against the judgment and  

order  dated  2.8.2007  passed  by  the  Special  Judge  of  the  

Designated Court under the TADA for Bombay Blast Case No.1 of  

1993 by which the respondent has been convicted under Section  

3(3) TADA on two counts and awarded rigorous imprisonment for  

7 years with a fine of Rs. 25,000/- and in default of payment of  

fine, to suffer further RI for a period of six months on one count  

and 7 years rigorous imprisonment under Section 3(3) TADA on  

the  second  count.  However,  he  had  been  acquitted  of  the  first  

charge of conspiracy.  

219. The appeal has basically been filed only for enhancement of  

punishment, or for conviction of the respondent for main charge of  

conspiracy.  In addition to the first charge, the general charge of  

conspiracy had been framed for  participating in the landing and  

transportation  of  contraband  at  Shekhadi  for  commission  of  

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terrorist  activities;  for  transporting  the  smuggled  contraband,  

including weapons’ through his tempo bearing no.MMP-4799 from  

Shekhadi to Panvel for committing terrorist  acts;  and further for  

participating  in  weapons  training  at  Shekhadi.   Out  of  the  said  

charges,  the  charge  of  participation  in  weapons’  training  at  

Shekhadi was not proved.

Hence, this appeal.  

220. Heard rival submissions made by the counsel for both parties  

and perused the evidence on record.  

221. The evidence against the said respondent has been his own  

confession which had been retracted and it had been corroborated  

by the confessional statements of Abdul Gani Ismail Turk (A-11),  

Parvez  Nazir  Ahmed  Shaikh  (A-12),  Sayyed  Abdul  Rehman  

Shaikh (A-28), Liyakat Ali Habib Khan and Sharif Abdul Gafoor  

Parkar  (A-17).   His  involvement  in  the  crime  has  also  been  

corroborated  by  the  deposition  of  Uttam  M.  Kale  (PW.190)  in  

whose presence the confessional statement of co-accused had been  

recorded.  Deposition of Vijay Govind More (PW.137), a labourer  

at  Wangni  Tower  and  Sanjay  Pandey  (PW.492)  have  also  

supported  the  case  of  the  prosecution.   The  Designated  Court  

appreciated the evidence and held as under:-

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“Thus, considering material in the confession of A- 18 and aforesaid co-accused the same leads to the  conclusion  of  A-18  also  being  involved  in  Shekhadi  landing  operation  as  denoted  by  said  material  and  as  such  having  committed  offence  under  Section  3(3)  of  TADA  for  which  he  is  charged  at  head  2ndly  clauses  ‘a’  and  ‘b’  to  the  extent of transportation of contraband material of  the  said  landing  effected  by  him.   Similarly,  considering the manner in which he had acted in  the  said  episode  for  furthering  the  object  of  conspiracy to commit terrorist  act  as  denoted by  said  material  the  same  also  establishes  his  involvement  in  commission  of  offence  of  conspiracy to commit terrorist act punishable u/s.  3(3) of TADA.

 Now taking up work of determining sentence  for A-18 & 28 in light of submission canvassed at  Bar,  reasoning  given  during  earlier  part  of  judgment  and  particularly  declaration  made  in  consequent  to  same  on  11th of  October,  2006  regarding A-18 and 17th Oct., 2006 regarding A-28  reveals that though both of them were charged for  commission  of  offence  of  conspiracy  and  for  commission  of  offence  under  Section  3(3)  of  TADA i.e. A-18 on 3 sub-counts & A-28 on 2 sub- counts  each  of  them  was  found  guilty  for  commission of offence only on two sub-counts to  the  extent  as  found  during  the  assessment  of  evidence  for  commission  of  offences  punishable  under  Section  3(3)  of  TADA.   Without  unnecessarily  reiterating  every  aspect  connected  with decision arrived accordingly, in short it can  be  said  that  both  of  them  are  found  guilty  accordingly mainly due to acts committed by each  of  them  in  connection  with  Shekhadi  Landings  and/or  transportation  of  contraband  goods  smuggled by effecting the said landings. The said  landing  was  effected  by  Tiger  Memon  on  two  occasions  in  month  of  February,  1993  in  which  Tiger Memon and his associates at the behest  of  

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absconding  accused  Dawood  Ibrahim  has  smuggled  arms,  ammunition  and  explosives  and  transported same from Shekhadi Coast via Wangni  Tower to Bombay.

The  evidence  surfaced  and/or  reasoning  given thereon earlier also reveal that both A-18 &  28 since earlier  had close association with Tiger  Memon and were carrying  out the work of Drivers  for  transportation  of  smuggled  goods  and in  the  questioned  landing  they  had  transported  the  contraband goods in a manner as discussed in the  earlier  part  of  the  judgment.  The  reasons  given  earlier  in  terms  reveal  the  evidence  having  established  that  both  of  them  were  men  of  confidence  of  Tiger  Memon.   The  same  also  reveals  that  they were aware and/or had become  aware about  the  nature of  the  goods which they  were transporting and/or had transported.  Having  regard to the same and having regard to the fact  that  both  of  them,  even  after  acquiring  the  knowledge had not taken any steps revealing that  they  were  against  transportation  of  such  a  contraband  goods,  which  was  arms  and  ammunition and RDX material  and since the act  committed  by  them  being  in  the  nature  of  furthering  the  object  of  conspiracy  to  commit  terrorists act, they were held guilty for the offence  of a conspiracy to the said extent.  Since, evidence  has  not  revealed  that  both  these  accused  had  committed  any  further  acts  after  the  said  transportation  and/or  thereafter  A-18  having  stopped the work for Anwar at the behest of whom  he was involved in the said work and so also both  of  them  being  not  connected  with  any  of  the  operation   effected  for  achieving  the  object  of  entire  conspiracy  i.e.  both  of  them  being  not  involved  in  acquiring  the  training,  attending  conspiratorial meetings, in which the targets were  selected  etc.  they  could  not  be  held  guilty  for  commission  of  offence  of  conspiracy  to  commit  the serial bomb blast etc.”

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222.    The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

223. We  do  not  see  any  cogent  reason  to  interfere  with  the  

impugned judgment.  The appeal  lacks merit  and is accordingly  

dismissed.      

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CRIMINAL APPEAL NO. 1034  OF 2012

State of Maharashtra      ..  Appellant

Versus

Tulsi Ram Dondu Surve        … Respondent                      

224. This  appeal  has  been  preferred  against  the  judgment  and  

order dated 2.8.2007 passed by Special Judge of the Designated  

Court under the TADA for Bombay Blast case, Greater Bombay in  

B.B.C. No.1 of 1993. The respondent Tulsi Ram Dondu Surve (A-

62), has been found guilty for offences punishable under Section  

3(3)  TADA,  and  on  the  said  count,  has  been  convicted  and  

sentenced to suffer RI for 9 years and a fine of Rs.50,000/- and in  

default, to suffer further RI for one year.  He has also been found  

guilty  under  Section 202 IPC,  and sentenced to  suffer  RI  for  6  

months and ordered to pay a fine of Rs.5,000/-, and in default of  

payment of fine, he was ordered to suffer further RI for one month.  

Both the sentences were directed to run concurrently. However, he  

has been acquitted for charge of conspiracy.

Hence, this appeal.  

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

appellant  would  submit  that  the  respondent  (A-62)  was  a  

Watchman - a government servant, at Wangni Tower. He had not  

only facilitated the  unloading of goods smuggled in India, rather  

served the smugglers by taking money as a consideration for this  

work.  He was fully aware of the contraband material but he did  

not  inform the police authorities about the same.  Therefore, he  

ought to have been held guilty of the charge of conspiracy also.

226. On  the  contrary,  Ms.  Farhana  Shah,  learned  counsel  

appearing for  the respondent has opposed the appeal  contending  

that  he  has  already  served  5  years  of  sentence.  He  did  not  

participate  in  hatching  the  conspiracy  by  attending  any  

conspiratorial meetings.  Therefore, this Court should not grant any  

indulgence, taking into consideration the parameters laid down by  

this Court for hearing the appeal against order of acquittal.  The  

appeal is liable to be dismissed.

227. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

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228. Evidence against respondent:

(a) Confessional statement of respondent (A-62)

(b) Confessional statement of Dawood Phanse (A-14)

(c) Confessional statement of Sharif Abdul Gafoor Parkar (A- 17)   

(d)  Deposition of Usman (PW.2)

229. Confessional statement of respondent Tulsi Ram Dondu  Surve (A-62) :

In his confessional  statement, the respondent revealed that  

he  was  working  as  a  Watchman  in  Wangni  Tower.   Dawood  

Phanse (A-14) had become acquainted with him and Tiger Memon  

(AA) who had been using Wangni Tower for loading, unloading  

and shifting the contraband from one vehicle to  another.   Tiger  

Memon  (AA)  used  to  keep  the  smuggled  goods  and  silver  in  

Wangni  Tower.   As Harish Chandra Surve (PW.108) and Vijay  

Govind More (PW.137) had also been working in the same tower  

as employees, the respondent had persuaded them for helping the  

smugglers. Payment was made to them from the money received  

by  him  for  rendering  such  assistance.   He  also  disclosed  that  

Dawood Phanse (A-14) had purchased 10 acres of land in the name  

of the accused-respondent  (A-62).   In respect  of  the incident of  

smuggling,  he  disclosed  that  one  tempo,  jeep  and  Maruti  car  

arrived  at  the  Wangni  Tower.   Tiger  Memon  (AA)  and  his  

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associates Iqbal, Mobin, Anwar, Munna, Shafi were accompanying  

the  vehicles.  Silver  bricks  were  shifted  from the  truck  into  the  

tempo.  There were gunny bags and boxes covered with clothes  

also  and  about  50  bags  out  of  the  aforesaid  goods  remained  

unloaded.  The said bags were taken by the truck of Alware in the  

field which was in his  name and were concealed in  the pits  by  

putting soil on it.  Dawood Phanse (A-14) had told him that the  

contraband was “Kala Sabun”, and he was warned not to disclose  

the same to any one.  Tiger Memon (AA) cut one bundle from the  

said  bundles,  and  saw the  same to  ascertain  whether  the  goods  

were proper or not.  He threw the plastic at that place and packed  

the same in another bundle and took the same with him. Thereafter,  

on 7.1.1993 again Dawood Phanse had informed the respondent  

(A-62) that goods were about to arrive and this was being informed  

to  Harish  Chandra  Surve  (PW.108)  and  Vijay  Govind  More  

(PW.137).  One truck, three jeeps, one rickshaw and two motor  

cycles came there alongwith the accused persons, namely, Dawood  

Phanse (A-14), Dadamiya Parkar (A-17), Sharif Adhikari (A-60),  

Abdul Gharatkar (A-34) and Tiger Memon (AA).  After 5-6 days  

Dawood Phanse (A-14)  had paid him Rs.2,000/- for the assistance.  

Dawood Phanse (A-14) used to give an amount of Rs.1000/- for  

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each of  them i.e.  accused,  Harish Chandra Surve (PW.108) and  

Vijay Govind More (PW.137).

230. Confessional statement of Dawood Phanse (A-14) :

The  accused  Dawood  Phanse  (A-14)  did  not  name  Tulsi  

Ram  Dondu  Surve  (A-62)  but  corroborated  the  incident  of  

unloading and shifting of goods at Wangni Tower.   

231. Same remained the position in respect  of the confessional  

statement  of  Sharif  Abdul  Gafoor  Parkar  (A-17).   Even  the  

Deposition of Usman (PW.2) corroborated the same.  

232. After appreciating the entire evidence, the Designated Court  

came to the conclusion as under:

“59-A – The aforesaid material  contained in  the  confession  of  A-62  not  only  reveals  his  involvement  in Shekadi  landing & transportation  but also reveals involvement of A-14, 17, 27, 34,  42, 55, 60, PW 108, PW 137 and Tiger Memon. 59-B - The corroborative material to matters  contained  in  confession  of  A-62  i.e.  his  involvement  in Shekadi  landing & transportation  operation  for  which  he  is  charged  with  is  also  found in the confession of co-accused no.17. 59-C - Thus  considering  material  in  the  confession of  A-62 and aforesaid co-accused the  same leads to the conclusion of A-62 also being  involved in Shekadi landing operation as denoted  by  said  material  and  as  such  having  committed  offence u/s.3(3) of TADA for which he is charged  at head 2ndly clause ‘a’ and ‘b’.  Similarly the same  evidence  also  establishes  his  involvement  in  

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commission  of  offences  for  which  charge  was  framed at head 3rdly i.e. offence u/s.202 of IPC on  count of himself in spite of being watchman and  Government  servant  has  still  knowingly  and  intentionally  omitted  to  give  information  about  offences  committed  in  his  presence  being  in  possession of contraband material unauthorisedly.”  

233. The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

234. We have given our conscious thought to the facts but are not  

convinced that the respondent can be held guilty for the charge of  

larger conspiracy also.  We concur with the learned Special Judge  

so far as the respondent is concerned.  The appeal lacks merit and  

is dismissed accordingly.  

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CRIMINAL APPEAL NO. 416 OF 2011

State of Maharashtra Through CBI                        …Appellant

Versus

Sujjad Alam       … Respondent   

235. This  appeal  has  been  preferred  against  the  judgment  and  

order dated  2.8.2007 passed by Special Judge of the Designated  

Court under the TADA for Bombay Blast Case No.1 of 1993 by  

which the Respondent  (A-61) had been convicted under Section  

3(3) TADA and awarded rigorous imprisonment for 7 years with a  

fine  of  Rs.  50,000/-  However,  Respondent  (A-61)  has  been  

acquitted of the general charge of conspiracy.  

Hence, this appeal.  

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

appellant,  has  submitted  that  the  respondent  had  very  close  

association with terrorists and had been a kingpin in all the terrorist  

activities and most  of the accused in their confessional statements  

had revealed his involvement.  Therefore, he ought to have been  

convicted for the charge of general conspiracy and, thus, the appeal  

deserves to be allowed.  

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237. On  the  contrary,  Ms.  Farhana  Shah,  learned  counsel  

appearing for the respondent, has submitted that the respondent (A-

61) has already been convicted and punished appropriately. He has  

already served 3-1/2 years in prison and had paid fine, therefore, no  

further  punishment  is  required  and  the  appeal  is  liable  to  be  

dismissed.  

238. The evidence against the respondent  Sujjad Alam @ Iqbal  

Abdul  Hakim  Nazir  (A-61)  is  his  own  confession.  In  his  

confessional  statement,  he had disclosed that  his  maternal  uncle  

Khalil Ali Nazir had been involved in landing of silver for Tiger  

Memon (AA) at Shekhadi Beach.   Accused (A-61) used to take  

Dawood Taklya (A-14) and Abdul Aziz Gharatkar to the place of  

landing in his auto rickshaw. Accused (A-61) participated in the  

landing and transportation of the contraband.  Accused (A-61) was  

paid Rs. 2000/- per landing through Khalil. On 20th January, 1993,  

Accused (A-61) went to the residence of his maternal uncle and  

found  Khalil,  Muzammil,  Shafi  and  other  Khalil,  resident  of  

Shrivardhan  present  there.   They  were  shifting  some  goods  

wrapped in gunny bags from the jeep to a room.  At that time, son  

of Dawood Taklya Sarfaraz (A-55) was also there.  Shafi, driver of  

Tiger  Memon(AA),  asked  accused  (A-61)  to  leave  the  room.  

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When they opened the gunny bags inside the room, accused (A-61)  

saw that the bags contained 16 rifles and 32 cassettes (magazines).  

After  coming  outside,  A-61  saw  that  Khalil,  resident  of  

Shrivardhan, was closing secret cavities in the jeep. Shafi then took  

that  jeep  towards  Mhasla.  The  accused  (A-61),  Khalil  and  

Muzammil took the said arms, ammunition in the auto rickshaw of  

Muzammil at the residence of Muzammil and dropped the same  

there. On 3rd February, 1993, his uncle Khalil asked him to help in  

the landing of contraband for Tiger Memon (AA) in the night. So  

A-61 went to the place of landing in his auto rickshaw alongwith  

Dawood Taklya (A-14) and Abdul Aziz.  After reaching there, he  

found  2-3  jeeps  carrying  Tiger  Memon  (AA)  and  20-25  of  his  

associates. The accused (A-61) was then directed to reach Tower,  

upon which, he left  to wake the people there.  On reaching the  

place the accused (A-61)  parked the vehicle  on one side of  the  

tower and slept  on the back seat.  After  a long time, Muzammil  

came to the vehicle and woke him up. Rashid and Khalil also came  

there.  By that time, all the vehicles from Shekhadi had arrived.  

The associates of Tiger Memon (AA) were unloading and shifting  

the articles inside the Tower. The accused (A-61) was forbidden to  

enter  inside.   After  sometime,  Dawood,  Khalil,  Abdul Aziz and  

accused (A-61) left the Tower in the auto rickshaw. It was in the  

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evening  of  9th February,  1993,  that  the  accused  (A-61)  took  

Dawood Taklya in his auto rikshaw to Mehandari. From there they  

took  Khalil  Nazir  from his  residence  and  reached  Muzammil’s  

residence. On being asked by Dawood Taklya,  Muzammil handed  

over 3 rifles and 6 cassettes in a gunny bag.  All the three accused  

then took the said weapons and ammunition and came to Lonery  

Phatta on the highway via Goregaon and handed over the same to  

Tiger  Memon  (AA),  who  had  arrived  there.   After  4-5  days,  

Dawood Taklya sent Rs.4000/- for both the landings.   

239. Confessional  statement  of  Mohd.  Phanse  @  Dawood  

Taklya (A-14) – His statement corroborated the version given by  

the accused (A-61) about the landing at Shekhadi and disclosed the  

role  of  accused  (A-61)  as  a  participant  in  the  landing  and  his  

facilitation in the transportation.  According to him, Tiger Memon  

(AA) was there with 20-25 persons.   Out of  them 8-10 persons  

were carrying pistols in their pockets. Immediately, after the arrival  

of trawler, accused (A-61) was sent alongwith his auto rickshaw to  

call Rashid from Borli with his truck so he left.  The goods were  

unloaded  and  put  in  the  trucks.  Immediately,  another  trawler  

arrived  carrying  the  goods  which  were  also  unloaded.   Tiger  

Memon (AA) made 2-3 boys carrying guns to sit over the goods  

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which were loaded in the truck. Then they had reached Wangni  

Tower, where the goods were unloaded. When they went inside the  

Tower, he saw the men of Tiger Memon (AA) opening those boxes  

and putting rifles,  pistols,  bullets,  black wire,  handgrenades  and  

bundles of  wire with white pencil  on top and “black soap” like  

material at the side. Tiger Memon (AA) was sitting at their side  

and counting and noting things in his diary. Once the landing and  

transportation  was  over,  co-accused  (A-14)  came  back  to  his  

village alongwith accused (A-61) in his auto rickshaw.  

240.   Confession of Khalil Ahmed Sayed Ali Nasir (A-42) – So  

far  as  accused  (A-61)  is  concerned,  A-42  in  his  confessional  

statement disclosed that on 3rd March, 1993 he and Dawood Taklya  

(A-14) had reached Mhasla in the autorickshaw of accused (A-61).  

Then  the  acccused  (A-61)  was  sent  to  village  Borli  with  

autorickshaw to bring the truck and labourers.  

 241. Confession  of  Muzammil  Umar Kadri  (A-25) –  On 3rd  

February,  1993,  this  accused  (A-25)  on being called reached in  

front of Bashir’s house in Borli.  Accused (A-61) auto rickshawala  

also came there sometime later after dropping Dawood Taklya (A-

14)  and  Khalil  at  Shekhadi.   Sometime  later,  Khalil  had  come  

alongwith another  Khalil  of  Shrivardhan on his  scooter.   Khalil  

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sent  accused (A-61) to the tower just  before the jeep came and  

accused  (A-25)  also  went  to  the  tower  alongwith  Khalil  by  

following the truck.  On 7th February, 1993, Dawood Taklya (A-14)  

had taken him in the auto rickshaw of accused (A-61), to Shekhadi.  

In the morning of 7th February, 1993 Dawood Taklya (A-14) had  

come in the rickshaw of accused (A-61) and took 3 rifles and 6  

cassettes which had been kept in his house earlier.  The remaining  

13 rifles and 26 cassettes had been recovered later on by the police  

from his house.  

242. Deposition  of  Vijay  Govind  More  (PW.137) –  This  

witness deposed about the incident of February, 1993 stating that  

Tiger  Memon  (AA)  and  his  companions   came  in  jeeps  and  

motorcycles and an auto rickshaw at Wangni Tower.  Accused (A-

61) was also with them.  He also identified the accused (A-61) in  

court.  

243. The Designated Court  after appreciating the entire evidence  

reached the conclusion as under:

“The  aforesaid  material  contained  in  the   confession  of  A-61  not  only  reveals  his   involvement in Shekadi landing and transportation   but also reveals involvement of A-14, 15, 17, 25,   27, 34, 42, 55 & Tiger Memon.”

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244. In  addition,  the  Designated  Court  also  reached  the  

conclusion that the accused (A-61) had no knowledge about the use  

to  which  weapons  were  to  be  put  into.   In  awarding  the  

punishment, the court took into consideration the role played by the  

respondent (A-61) and concluded that charge for larger conspiracy  

could not be made out.  

245. It is evident that he was not allowed to enter into the Wangni  

tower and thus he had no knowledge that arms had been smuggled  

into India to be used in Bombay Blast, and further, the fact that the  

arms  were  kept  in  the  house  of  Muzammil,  and  the  arms  and  

ammunition  had  been  transported  in  the  vehicle  belonging  to  

Muzammil  and not  in  the  vehicle  of  accused  (A-61).   There  is  

nothing on record to show that accused (A-61) had participated in  

loading and unloading of the same.  His rickshaw had been used  

for  carrying  the  accused  persons.   The  accused  (A-61)  had  

transported the arms, i.e. 3 rifles and 6 cassettes alongwith Dawood  

Taklya  from the  house  of  Muzammil  which  were  subsequently  

taken  from him by Tiger Memon (AA).  

246. The scope and ambit of Section 3(3) TADA is very wide.  

Punishment for the offences under section 3(3) varies from 5 years  

to life imprisonment depending on the gravity of the overt act done  

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by particular accused. Each of them cannot be held to be at par, as  

one of them may be instrumental in arranging the landing, another  

maybe  helping  in  organising  and  affecting  transportation,  some  

may be given supervisory work while  other  persons might have  

been  engaged  as  labourers.  Therefore,  while  determining  the  

quantum of punishment the precise act committed by an individual  

accused is of prime consideration.  

247. In the instant case,  appellant (A-61) had been found guilty  

on the single count of participating in landing on two occasions and  

additionally  of  being  involved  in  the  concealment  of  arms  and  

ammunition at the house of A-25 and further for the transportation  

of some arms from the house of A-25 to Lonery Phata and handing  

over the same to Tiger Memon (AA). Undoubtedly he had been  

working as an auto driver and was paid only for that.  

248. The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

249. The judgment of the learned Special Judge does not require  

interference. The appeal lacks merit and is accordingly dismissed.  

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CRIMINAL APPEAL NO. 512  OF 2008

Abdulla Ibrahim Surti & Ors.                           …Appellants

Versus

State of Maharashtra thr. CBI-STF, Bombay   … Respondent                      

AND

CRIMINAL APPEAL NO. 401 OF 2011

State of Maharashtra ….Appellant

Versus

Faki Ali Faki Ahmed & Ors. ….Respondents

AND  

CRIMINAL APPEAL NO. 595 OF 2011

The State of Maharashtra ….Appellant

Versus

Abdullah Ibrahim Surti  ….Respondents

Criminal Appeal Nol. 512 of 2008

250. This  appeal  has been preferred against  the judgments and  

orders dated 21.5.2007 and 25.5.2007, passed by the Special Judge  

of the Designated Court under the TADA in Bombay Blast Case  

No.  1/93,  Greater  Bombay,  by  which  the  appellants  have  been  

convicted under Sections 3(3) and 6 TADA.  

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In  view  of  the  fact  that  each  appellant  being  assigned  

different acts, has been charged differently and has been awarded a  

different  sentence,  it  is  desirable  to  deal  with  the  case  of  each  

appellant separately to certain extent.  

I. Abdulla Ibrahim Surti (A-66)  :    

251. Appellant  (A-66)  was  charged  for  concealing  12  AK  56  

rifles, 36 magazines and 19500 cartridges of AK 56 rifles which  

were kept in 3 bags in a cloth and 13 cloth bags were kept in the  

mango  grove  of  Abdul  Razak  Subedar.  These  arms  and  

ammunition had been smuggled into India to be used for terrorist  

activities and were recovered at his instance on 7.4.1993 from the  

said place.

He was further  charged for  disposal  of  the said arms and  

ammunition  alongwith  other  co-accused  dumping  the  same  in  

Kandalgaon  creek. And  lastly  for aiding  and  abetting  the  co-

accused  Shabir  (AA)  and  Jamir  (A-133)  having  possession  and  

carrying fire arms and ammunition under Section 6 TADA.   

Appellant  (A-66)  stood  acquitted  on  the  first  charge  of  

conspiracy. However, he has been convicted under Sections 3 (3)  

TADA  and awarded  RI of five years and a fine of Rs.25,000/-,  

and  in  default  of  payment  of  fine,  to  suffer  further  RI  of   six  

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months. Under Section 6, has been awarded RI of six years and a  

fine of Rs.25,000/- and a suitable R.I. for default of payment of  

fine.   

Hence, this appeal.  

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

appellant  (A-66)  has  stated  that  the  appellant  (A-66)  had  no  

knowledge  that  the  items  being  transported  were  arms  and  

ammunition. Moreover, he has not made any confession and the  

confessional statement of the co-accused cannot be relied upon to  

convict him. Further it was urged that he (A-66) has already served  

3 years out of the sentence that has been awarded to him. Thus, the  

appeal deserves to be allowed.  

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

State has submitted that confessional  statement of Faki Ali Faki  

Ahmed Subedar (A-74) disclosed the involvement of the appellant  

in disposal of 3 wooden boxes concealed in the cattleshed of Firoz  

Khan  as  the  latter  wanted  to  dispose  of  the  hidden  boxes  of  

weapons and bags of bullets in the creek after the Bombay Blast on  

12.3.1993.  He explained how the said contraband material  was  

taken in the boat and thrown in the Kandalwada Creek with the  

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help  of  some persons  including  Abdullah  Ibrahim Surti  (A-66).  

Therefore, the appeal deserves to be dismissed.

254. We  have  heard  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

255. Evidence against the appellant (A-66):   

(a) Confessional statement of Faki Ahmed Subedar (A-74)

(b) Confessional statement of Janardhan Pandurang Gambas (A-

81)

(c) Confessional statement of Jamir Sayyed Ismail Kadri (A-133)

(d) Deposition of Shridhar Shantaram Borkar (PW-88)

(e) Deposition of Dattaraybhiku Udarkar (PW-89)

(f) Deposition of Anil Ramchandra Baswat (PW-90)

(g) Deposition of Janu Hajari (PW-378)

(h) Deposition of Vyankatesh Hirba Rane (PW-588)

256. Confessional statement of   Faki Ahmed Subedar (A-74):   

According to this accused, in the 2nd/3rd week of March, 1993,  

Shabir came to him and asked for help as Firoz Khan had come from  

Bombay where some communal disturbance had taken place and he  

had to hide certain boxes of weapons and bags of bullets in the creek.  

He wanted a boat to take those weapons to the creek. Thereafter, the  

Shabbir (AA), Jamir (A-133) (dead),  appellant (A-66) and Janardhan  

Pandurang Gambas (A-81) removed those three wooden boxes and six  

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greenish coloured bags kept under the haystack in their cattle shed and  

kept them in the boat on the shore.  Janya Sarsai was in the said boat.   

Faki Ahmed Subedar (A-74) showed them torch light while bags and  

boxes were being carried. Thereafter, Shabir came and told that the  

bundles  of  weapons  and  bags  of  bullets  were  to  be  hidden  in  the  

mango groves. At that time, appellant (A-66), Janardhan Pandurang  

Gambas (A-81), and Jamir Sayyed Ismail Kadri  (A-133) (dead) were  

also present.  

257. Confessional  statement  of  Janardhan Pandurang Gambas  (A-81):

He disclosed that he had a boat and helped smugglers in landing  

and transportation and, for that purpose, he had been paid by Shabbir  

Rs.1000/- for each landing.  He stated that on 2nd December, 1992,  

Uttam  Potdar  (A-30)  came  to  him  and  conveyed  the  message  of  

Shabbir to help him in landing of gold, silver and, accordingly, they  

went  to  Dighi  Jetty  in  the  night.  They  found  a  large  number  of  

labourers alongwith Shabbir and Uttam Potdar (A-30) and Mechanic  

Chacha (A-136) and he participated in landing and transportation and  

he was paid  a sum of Rs.5,000/-.  On 9th January, 1993, he was again  

contacted by Uttam Potdar (A-30) and he went for landing alongwith  

Firoz Khan, Mechanic Chacha (A-136) and Shabbir Kadri. After the  

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landing Uttam Potdar (A-30), brought 30 bundles wrapped by gunny  

cloth around the box and 30 bags of military black colour and, at that  

time, Mechanic Chacha (A-136) said that the boxes contained glass  

wares so they had to be carried carefully.  After the Bombay Blast, he  

(A-81) went to Shabbir Kadri’s house where he told him (A-81)  that  

the  goods  which  landed  on  that  day  were  contained  guns  and  

ammunition and the same were to be hidden into a pit.  They dug pits  

in the mango grove of  Shabbir,  came back to his  house again and  

wrapped 12 guns, 4 each from 3 boxes, into the gunny clothes and  

boxes, packing with thermacol and 26 boxes were hidden in the pit.  

He (A-81)  was  paid Rs.1,000/-   for  doing the said  work.    While  

hiding the rifles and ammunition, Faki Ali Chacha (A-74), Abdullah  

Surti  (A-66)  and  Shabbir’s  father  Sayed  Ismail  (A-105)  were  also  

present.   They opened 3 wooden boxes in the house of Faki Ali Faki  

Ahmed  Subedar  (A-74).   Shabbir  told  him  that  the  same  were  

magazines of guns. Thereafter, Shabbir (AA), his brother Jamir (A-

133), Abdullah Surti (A-66), Faki Ali Faki Ahmed (A-74) and he (A-

81) went to the boat which was tied near the house of Shabbir, taking  

3 boxes, and  6 bags, where Janu Vethkoli was also present who neatly  

arranged the 6 bags and 3 boxes in the boat.  On being asked Faki Ali  

Faki Ahmed Subedar  (A-74) informed him (A-81) that there were  

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bullets in the bags. Subsequently, he was informed that the said goods  

have properly been kept in the creek water.    

258. Confessional Statement of Jamir Sayyed Ismail Kadri     (A-133):    

He disclosed that in January 1993, he had participated in the  

landing  alongwith  Uttam  Potdar  (A-30)  and,  at  that  time,  on  9th  

January,  1993,  he  was  also  informed  by  Shabbir  that  silver  and  

weapons  would  arrive  at  Dighi  Jetty  on  the  same  day.  He  further  

deposed that some of the smuggled goods were brought to the house  

of Shabbir and those wooden boxes and greenish coloured boxes were  

kept in the house of his (A-133) maternal grandmother for about one  

month as the house generally used to remain closed.   Subsequently,  

Shabbir said that the boxes had to be shifted to the house of Ali Mian  

Faki (A-74) which was in close proximity. Janardan Pandurang (A-

81), Ali Mian Faki (A-74), Abdulla Surti (A-66), Shabbir and he (A-

133) picked up those boxes and bags and took to the house of Ali  

Mian Faki (A-74).    

After 4-5 days of bomb Blast on 12.3.1993, Janardan Gambas  

(A-81) and Abdullah Surti (A-66) also arrived at his place.  Shabbir  

told them that the wooden boxes and bags had to be thrown in the  

water. As per the instruction, he brought the boat near the village and  

Shabbir, Firoz, Abu Bakar, Janardhan Gambas (A-81), Ali Mian Faki  

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(A-74), Abdullah Surti (A-66) and A-133 loaded three wooden boxes  

and few green colour bags in the boat from the house of Ali Mian Faki  

(A-74).  Shabbir had said that those boxes and bags have to be thrown  

in creek near Kandalwada.  Next night Shabir took him (A-133) to the  

house of Ali Mian Faki (A-74).   Janardan Gambas (A-81), Ali Mian  

Faki (A-74) and Abdullah (A-66),  participated in burying the arms  

bags and sacks in the mango grove of Subedar.  

259. Deposition of Shridhar Shantaram Borkar (PW-88):

He was the panch witness to the disclosure statement made by  

Faki  Ali  Faki  Ahmed  Subedar  (A-74)  on  7.4.1993,  and  also  the  

recovery of weapons from the mango grove.   

260. Deposition of Dattaraybhiku Udarkar (PW-89):

He  was  the  panch  witness  to  the  statement  made  by  Janu  

Vetkholi (PW-378) on 8.4.1993, and to the recovery of weapons from  

Kandalwada creek. He recognised the seizure panchnama Exh. 503 in  

court.  

261. Deposition of Anil Ramchandra Baswat (PW-90):

He deposed that  he  had arranged for  a  boat  and took police  

party and Janu Vetkholi (PW-378) into Kandalgaon creek, wherefrom  

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three wooden boxes  and six  military colour  bags were found from  

which weapons and ammunition were recovered.  

262. Deposition of Janu Vetkholi  (PW-378) :

His  deposition  revealed  that  he  was  earlier  an  accused  but  

subsequently  discharged.  He  did  not  name  the  appellant  A-66,  

however, corroborated the confessional statement made by all others  

including Ali Mian Faki (A-74) and Janardan Pandurang Gambas (A-

81).  

263. Deposition of Vyankatesh Hirba Rane (PW-588):

He had recorded the disclosure statement made by Faki Ali Faki  

Ahmed  Subedar  (A-74)  in  presence  of  the  panch  witnesses  on  

7.4.1993. In the said statement, he had disclosed the location where  

arms were hidden. Faki Ali Faki Ahmed Subedar (A-74) led the police  

party  to  mango  grove  from  where  the  weapons  were  recovered.  

Vyankatesh Hirba Rane (PW-588) recorded the FIR and arrested Janu  

Vetkholi  (PW-378)  on  8.4.1993.  Janu  Vekholi  (PW-378)  took  the  

police  party  to  the  creek  from where  three  wooden  boxes  and  six  

military coloured boxes were recovered containing weapons.  

264.  The learned Designated Court after appreciating the evidence  

came to the conclusion that the involvement of the appellant (A-66) in  

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commission of similar acts was established by the material contained  

in confession of  the appellants (A-74 and A-81) and Jamir Sayyed  

Ismail  Kadri  (A-133)  and  he  was  held  guilty  for  commission  of  

offences under sections 3(3) and 6 TADA.

265. We find no reason to interfere with the judgment of the learned  

Special Judge. The appeal with respect to appellant (A-66) lacks merit  

and is accordingly dismissed.  

II.  Faki Ali Faki Ahmed Subedar (A-74) :

266. Appellant (A-74) was further charged for concealing 12 AK  

56  rifles,  36  magazines  and  19500  cartridges  of  AK  56  rifles  

which were kept  in  3 bags  in  a  cloth and 13 cloth bags  in  the  

mango  grove  of  Abdul  Razak  Subedar.  These  arms  and  

ammunition had been smuggled into India to be used for terrorist  

activities and had been recovered at his instance on 7.4.1993 from  

the said place.

He was further charged with disposal of the said arms and  

ammunition  alongwith  other  co-accused  dumping  the  same  in  

Kandalgaon creek.

He was lastly charged with aiding, abetting the co-accused  

Shabir and Jamir (absconding) having in possession and carrying  

fire arms and ammunition under Section 6 TADA.   

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267. He  had  been  acquitted  on  the  first  charge  of  conspiracy.  

However, he had been convicted under Sections 3 (3) TADA and  

awarded  RI of five years and a fine of Rs.25,000/-, in default of  

payment of fine, to suffer further RI of  six months. Under Section  

6, he had been awarded RI of six years and a fine of Rs.25,000/-  

and a suitable R.I. for default of payment of fine.  

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

appellant  (A-74) and Shri Mukul Gupta, learned senior counsel  

appearing for  the  State  have raised the same contentions  which  

have been raised in respect of Abdulla Ibrahim Surti (A-66).  

269. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

270. Evidence against the appellant (A-74):  

(a) Confessional statement of the appellant (A-74)

(b) Confessional statement of Janardhan Pandurang Gambas (A-81)

(c) Confessional statement of Jamir Sayyed Ismail Kadri (A-133)

(d) Deposition of Shridhar Shantaram Borkar (PW-88)

(e) Deposition of Dattatray Udharkar (PW-89)

(f) Deposition of Anil Baswat (PW-90)

(g) Deposition of Janu Hajari (PW-378)

(i) Deposition of Rajan Dhoble (PW-585)

(j) Deposition of Pratap Dighavkar (PW-586)

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271. Confessional Statement of Faki Ali Faki Ahmed Subedar  (A-74):

He disclosed that he was a neighbour of Sayed Ismail Kadri (A-

105)  and  his  sons  Shabir  (AA)  and  Jamir  (A-133)  indulged  in  

smuggling activities and had connections with Uttam Potdar (A-

30).  After the bomb Blast on 12th March, 1993, Shabir came to his  

(A-74) house and asked him to help one Firoz Khan who had come  

from  Bombay  and  Firoz  Khan  told  him  to  hide  the  boxes  of  

weapons and bags of bullets in the creek.  Therefore, he wanted his  

help to take the things upto the boat.  Shabir, his brother Jamir (A-

133),  Abdullah  Surti  (A-66)  and  Janardhan  Gambas  (A-81)  

removed three wooden boxes and six greenish coloured bags kept  

under the haystack in their cattleshed and kept it in the boat at the  

shore.  Janu Vetkholi (PW. 378) was present in the said boat.   The  

appellant  (A-74) showed them torch light  while  bags and boxes  

were  being  carried.   They  sailed  the  boat  towards  Kandalwada  

Creek.   On the next day,  Shabir  came and said that  bundles of  

weapons and bags of bullets which were in his possession, were to  

be hidden in the mango groves.  So again in the night the appellant  

(A-74) along with other co-accused took the 13 greenish coloured  

bags of bullets of guns and 3 bundles having guns wrapped in the  

plastic paper from under the haystack and they were buried in the  

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pit  dug in  the  mango grove of  Abdul  Razak Subedar  who was  

staying in Nairobi at that time and the same was filled and covered  

by soil and hay.   At that time also, the appellant (A-74) had shown  

the  torch  light.   The  appellant  (A-74)  was  taken  to  the  police  

station after making the inquiry about Shabir (AA) and Jamir (A-

133) and the appellant (A-74) disclosed that 13 greenish bags of  

bullets of guns wrapped in the wax cloth had been buried in the  

mango grove of Abdul Razak Subedar.  The said items were earlier  

recovered from there on the confessional statement of the appellant  

(A-74).  He took out the hidden articles from the pit by removing  

the soil  and hay and produced the same.  The police seized the  

arms and ammunition.    

272. Confessional statement of Janardhan Pandurang Gambas  (A-81):

He has disclosed in his confessional statement that after the  

Blast, Jamir Sayyed Ismail Kadri (A-133) came to Gambas’s (A-

81) house and alongwith Abdulla Ibrahim Surti (A-66), Faki Ali  

Faki Ahmed Subedar (A-74), Shabir and his father (A-105), they  

hid the weapons in mango grove that landed on 9.2.1993 at Dighi.  

Thereafter,  Gambas (A-81), Jamir Sayyed Ismail Kadri (A-133),  

Abdulla Ibrahim Surti (A-66) and Faki Ali Faki Ahmed Subedar  

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(A-74) took out three boxes  and six packets from the house of A-

74 and placed them in a boat with the help of Janu Vetkholi (PW-

378), who took the boat to Mahendali creek. Faki Ali Faki Ahmed  

Subedar  (A-74)  told  Gambas  (A-81)  that  the  boxes  contained  

bullets and Shabir had informed Gambas (A-81) that the goods had  

been kept in creek water.  

Thus,  the  confession  of  Gambas  (A-81)  corroborates  the  

confession of  Faki  Ali  Faki  Ahmed Subedar  (A-74)  in  material  

respects  in  so  far  as  the  hiding of  weapons  in  mango grove is  

concerned and also about taking the weapons to a boat and hiding  

them in creek water after the Blast.  

273. Confessional statement of Jamir Sayyed Ismail Kadri (A-133):

He had participated in the landing at Dighi and he knew that  

weapons had been smuggled into India. Boxes containing weapons  

were kept at the house of Faki Ali Faki Ahmed Subedar (A-74) on  

instructions of Shabir (AA) by Jamir Sayyed Ismail Kadri (A-133),  

Abdulla Ibrahim Surti (A-66) and Janardhan Pandurang Gambas  

(A-81).  Faki  Ali  Faki  Ahmed Subedar  (A-74)  alongwith  others  

loaded three wooden boxes and few green bags in the boat of Janu  

Vetkholi  (PW-378),  which  Shabir  and  Firoz  threw  in  the  

Kandalwada  creek.  Next  day,  Shabir  took  Jamir  Sayyed  Ismail  

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Kadri (A-133) to the house of Faki Ali Faki Ahmed Subedar (A-

74), where Abdulla Ibrahim Surti (A-66) and Gambas (A-81) were  

already present. They buried the bags containing weapons in the  

mango  grove  at  a  little  distance  from his  house.  Jamir  Sayyed  

Ismail Kadri (A-133) was present in the house of Faki Ali Faki  

Ahmed Subedar (A-74) when police raided his house searching for  

Shabir after the Blast.  

274. Deposition of Shridhar Shanta Ram Borkar (PW-88):   

He revealed that he was called at the police station by P.S.I.  

VH Rane (PW.588) through the Constable. When he reached there  

he found two more persons present in the room and P.S.I.  VH  

Rane (PW.588) told him that one of them was Sonkar, resident of  

the village.  He was told that  the second person was arrested in  

connection with the Bombay Blast and for that purpose P.S.I. Rane  

wanted the witness to become a panch witness.  The witness was  

examined in his presence.  After preparing the panchnama (Ext.  

448) he disclosed his name to be Faki Ali Faki Ahmed Subedar (A-

74)  and  he  got  some  recovery  effected  from  Shabir  Kadri’s  

compound.  Thus,  the  panchnama  was  drawn  up  about  the  said  

event (Ext. 449). Thereafter, the witness (PW.88), Co-panch, the  

said accused (A-74) and VH Rane (PW.588) went to the place at  

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Agarwada  as  shown  by  the  said  accused.    After  entering  the  

compound  he  (A-74)  said  that  the  weapons  were  concealed  

beneath the  grass.   The accused (A-74) thereafter  removed the  

grass  from the said place and a  trench could be seen.  The said  

trench contained three black coloured bundles.   A-74 took out the  

said three bundles.  The said trench was also contained 13 military  

coloured cloth bags. All the said 13 bags were taken out of the said  

trench.  On  opening  the  said  trench  four  rifles  and  twelve  

magazines were found wrapped in a gunny bag. The said four rifles  

were  having black  colour  barrel  and wooden colour  grip.   The  

rifles were bearing some numbers but the same were illegible as it  

had been rubbed off. The first military coloured bag contained two  

rectangular tin boxes, one of the boxes was opened contained 750  

cartridges. The second tin box was sealed and the same was not  

opened  in  his  (PW-88)  presence.  The  remaining  12  military  

coloured bags contained two rectangular tin boxes each like the  

boxes found in the first bag and on opening the tin boxes they were  

found containing 750 cartridges each.  The panchnama of the said  

articles was drawn by P.S.I. Rane (PW.588). One of the rifle out of  

12 rifles and one of magazines and five cartridges was taken by the  

police by way of sample and the same were sealed.  

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In  his  cross-examination  he  has  admitted  that  he  had  

recorded the date 7.4.1993 in his small diary on which day he was  

made the panch witness. He further deposed that statement of  Faki  

Ali  Faki  Ahmed Subedar  (A-74)  was  recorded  wherein  he  had  

disclosed that  the arms and ammunition had been concealed by  

three persons.   He has admitted in his cross-examination that he  

had signed a large number of slips/labels. All the labels signed by  

him were not pasted upon all the articles.   

He further deposed that he was not in a position to identify  

the boxes or say that the boxes shown to him in the court were the  

same which had been recovered from the grove of Faki Ali Faki  

Ahmed  Subedar  (A-74).  He  has  also  admitted  that  certain  

newspapers had been used for sealing the recovered articles which  

were of the date subsequent to the date of recovery i.e. 7.4.1993,  

for  example.  Bombay Sakal dated 9.4.1993 and Krushival  dated  

13.4.1993.

275. Deposition of Dattatray Udharkar (PW-89):

He revealed that he is a recovery witness on 8.4.1993. This  

witness has deposed that he was called at the police station to act as  

a panch witness.  The accused person arrested by the police was  

also  at  the  police  station.  On  being  asked  the  accused  person  

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disclosed his  name as  Janu Vethkoli.   He disclosed  that  certain  

weapons had been hidden in creeks. All the persons alongwith the  

police party and said accused and swimmers went in a fishing boat  

around Kandalwada and they waited till the low tide was complete.  

As the water recedes the signs of the bags were seen in the water  

and the mud of the creek. The said bags were of military colour.  

Three wooden boxes were also seen at some distance away from  

the said bags.  The said six bags and 3 wooden boxes were taken in  

the boat. The mouth of one of the bags was loose. The said bag was  

opened. It contained two sealed tin boxes. One of the boxes was  

opened and found to  contain  cartridges.  Each box contained 30  

paper  boxes  with  25  cartridges  each.  The  second  box  was  not  

opened  in  his  presence.  The  box  contained  13  magazines.  The  

panchnama of recovery was prepared.  However, when the boxes  

were  opened  in  the  court,  newspaper  in  which  boxes  had  been  

wrapped was of date subsequent to the date of recovery e.g. Nava  

Kaal dated 13.4.1993. He identified the green colour bag recovered  

from the creek.  

276. Deposition of Anil Baswat (PW-90):

He revealed  that  he  was  a  panch  witness  of  recovery  on  

8.4.1993.  He  went  to  the  creek  alongwith  Mhasla  and  Bombay  

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police and one Janu Vethkoli (PW.378) was also in the boat. There  

they found three wooden boxes and 6 military cloth boxes at the  

shore  of  Kandalwada  creek.  They  got  down from the  boat  and  

brought the said articles and kept them in the boat. They returned  

to village Pabala by the same boat.  

In  his  cross-examination,  he  has  admitted  that  one  of  the  

newspapers  used  for  wrapping  the  articles  was  dated  13.4.1993  

which is subsequent to the date of recovery.  

277. Deposition of Janu Vethkoli (PW-378) :

He revealed  that he was  earlier  accused  but  subsequently  

discharged.    He had been arrested  in  connection with Bombay  

blast and prior to the Bombay blast he had been called by Jamir  

Sayyed Ismail Kadri (A-133) (dead) to bring his boat. Accordingly,  

he went to Agarwada with his (PW. 378) boat and Jamir Sayyed  

Ismail Kadri (A-133) told him to wait there. He reached there and  

after reaching the sea shore at Agarwada he found that Shabir was  

present. He was asked to anchor his boat and wait. Accordingly, he  

waited.  Thereafter,  Shabir  told him that  there is  a foul  smell  of  

things in his house and hence the same is to be thrown away in the  

sea.  Two persons who were present alongwith Shabbir transported  

the things alongwith them. Shabir kept the same in the boat.  The  

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things had been wrapped in a gunny bag. Shabbir also boarded his  

boat  and the  boat  was taken in  the creek away from the shore.  

Upon  reaching  the  creek,  Shabir  threw  away  the  said  articles  

wrapped in the gunny bag in the water. Thereafter, the witness took  

the boat to the shore of Agarwada. Shabir alighted from the boat  

and the witness  returned to his  village.  Shabir  did not  give any  

money to PW. 378 though he promised to pay the same.  

278. Deposition of Rajan Dhoble (PW-585):

In  his  deposition,  he reveals  that the  recovery  from  the  

Kandalwada  creek  was  effected  and  three  wooden  boxes  were  

found and opened at the sea shore. The said bags contained 18, 13  

and 13 magazines  of  black colour.  The said  recovery had been  

made at the instance of Faki Ali Faki Ahmed Subedar (A-74).

In his cross-examination he (PW-585) admitted that one of  

the newspapers in which the said articles had been wrapped was  

subsequent to the date of recovery as it was of 13.4.1993. He is the  

officer who had arrested Faki Ali Faki Ahmed Subedar (A-74).

279. Deposition of Pratap Dighavkar (PW-586):

He  revealed that while interrogating Faki Ali Faki Ahmed  

Subedar (A-74), the said accused expressed his desire to make a  

voluntary confession. Thus, on the same day he wrote a letter to the  

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S.P. Raigad requesting him to record his confession and he was  

produced for recording the confession on 7.5.1993 and it was so  

recorded.

280. With regard to Faki Ali  Faki Ahmed Subedar (A-74),  the  

Designated  court  came  to  the  conclusion  that  on  the  basis  of  

disclosure statement made by the appellant (A-74), 12 AK-56 rifles  

and  36  magazines  and  cartridges  were  recovered  from  mango  

groves.  The  appellant  (A-74)  was  having  knowledge  about  the  

same due to being involved in shifting the said contraband from the  

house of Jamir Sayyed Ismail Kadri (A-133) and Shabbir (AA) to  

said mango groves along with Jamir Sayyed Ismail Kadri (A-133)  

and other co-accused. It was held that said acts and the further acts  

of  the  appellant  (A-74)  of  giving  assistance  in  dumping  the  

cartridges of  AK-56 rifles  and magazines  in  Kandalwada creek,  

would make him guilty for commission of offences under sections  

3(3) and 6  TADA

 281. We find no evidence on record warranting the interference  

with the judgment  of  the learned Designated Court.  The appeal  

with  regard  to  appellant  (A-74)  lacks  merit  and  is  accordingly  

dismissed.

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III. Janardhan Pandurang Gambas (A-81):

282.       Appellant (A-81) was further charged for participating  

and assisting the co-accused Mechanic Chacha (A-136), Shabir and  

Jamir Kadri (A-133), Feroz Khan and co-accused Uttam Potdar (A-

30) in smuggling, landing and transportation of arms, ammunition  

and  explosives  smuggled  in  India  on  9.1.1993.  He  was  further  

charged with aiding and abetting, wanted accused Shabir and Jamir  

Kadri  (A-133)  and  Faki  Ali  Faki  Ahmed  Subedar  (A-74)  in  

concealing 12 AK 56 rifles, 36 magazines and 19500 cartridges of  

AK  56  rifles  in  the  mango  grove  of  Abdul  Razak  Subedar,  

knowingly and intentionally that these arms and ammunition had  

been  smuggled  into  the  country  for  committing  terrorist  acts.  

Lastly  he  was  charged  with  aiding  and  abetting  co-accused  

Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-

74), Sayed Ismail Sayed Ali Kadri (A-105) etc. in disposal of arms  

and ammunition by dumping the said consignment  of  arms and  

ammunition  in  Kandalgaon  Creek  which  was  recovered  on  

8.4.1993.  

283. After  conclusion  of  the  trial,  appellant  (A-81)  stood  

convicted  and  sentenced to suffer RI for 6 years and a fine of  

Rs.50,000/-, and  a suitable  R.I. for default of payment of fine  

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under  Section 3(3)  TADA  and  further  sentenced  to suffer RI  

for 3 years and a fine of Rs.25,000/- for conviction under Section  

111 read with Section 135(b) of the Customs Act, 1962.  

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

appellant  (A-81) and Shri Mukul Gupta, learned senior counsel  

appearing for  the  State  have raised the same contentions  which  

have been raised in respect of Abdulla Ibrahim Surti (A-66).  

285. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

286.    Evidence against the appellant (A-81):

(a) Confessional statement of the appellant (A-81)

(b) Confessional statement of Faki Ali Faki Ahmed Subedar (A-

74)

(c) Confessional  statement  of  Jamir  Sayyed Ismail  Kadri  (A-

133)

(d) Confessional statement of Mechanic Chacha (A-136)

(e) Deposition of Tikaram Shrawan Bhal (PW-191)

287. Confessional  Statement  of  Janardhan  Pandurang  Gambas (A-81):

In  his  own  confession  he  has  admitted  that  he  was  a  

fisherman and used  to  help  Shabir  and  Jamir  Kadri  (A-133)  in  

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smuggling. He participated in landing on 9.1.1993 at Dighi Jetty  

wherein arms and ammunition had been smuggled into the country  

with Uttam Shantaram Potdar (A-30), Mechanic Chacha (A-136)  

etc. and facilitated their transportation.   He further confessed that  

he rendered assistance in hiding the said weapons in the mango  

grove  of Abdul Razak Subedar alongwith  Abdullah Ibrahim Surti  

(A-66), Faki Ali Faki Ahmed Subedar (A-74), Sayed Ismail Sayed  

Ali  Kadri  (A-105)  etc.   He  further  said  that  he  helped  Shabir,  

Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-

74) in taking the boxes from the house of Faki Ali Faki Ahmed  

Subedar  (A-74)  containing weapons  and  hiding them in  mango  

grove. He has also admitted that he was told by Shabir (AA) that  

the boxes contained guns and further admitted that he had been  

informed by Faki Ali Faki Ahmed Subedar (A-74) that the boxes  

contained bullets.  

288. Confessional Statement of Faki Ali Faki Ahmed Subedar  (A-74):

In  his  confession  he  has  admitted  that  he  had  met  the  

appellant  (A-81)  at  the house of  Shabir  and took the smuggled  

goods from there with the help of appellant (A-81), duly assisted  

by Abdullah Ibrahim Surti (A-66) and Jamir Sayyed Ismail Kadri  

(A-133).  

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289. Confessional  Statement  of  Jamir  Sayyed  Ismail  Kadri  (A-133):

He disclosed that in January 1993 he met Uttam Shantaram  

Potdar (A-30),  Feroz Abdul Rashid Khan and Salim (A-134) and  

on 9.1.1993 Uttam Shantaram Potdar (A-30) came to his house on  

motorcycle and asked his help in landing work.   

So far as appellant (A-81) is concerned he disclosed that the  

wooden boxes and green coloured bags after being smuggled into  

this country were kept in the house of the maternal grandmother of  

Shabbir and were then shifted to the house of Faki Ahmed Subedar  

(A-74) with the help of appellant  (A-81), Faki Ali Faki Ahmed  

Subedar  (A-74)  and  Abdulla  Ibrahim Surti  (A-66).   He  further  

deposed that it was with the help of Abdullah Ibrahim Surti (A-66)  

and the present appellant (A-81) that the goods were loaded in the  

boat which were to be dumped in the sea. It was duly supported by  

Janu Vethkoli (PW.378). He has also deposed that appellant (A-

81) assisted in hiding weapons in the mango grove after  taking  

away the same from the house of Faki Ahmed Subedar (A-74).  

290. Confessional Statement of Mechanic Chacha (A-136):

He does not name the present appellant (A-81) directly but  

disclosed that it was on the instructions of co-accused that weapons  

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were  hidden  by  Shabir.   There  are  further  depositions  of  Janu  

Vethkoli  (PW.378),  T.S.  Bhal  (PW.191),   Shridhar  Borkar  

(PW.88), Dattatray (PW.89), Anil Baswat (PW.90)  and  Ashok  

(PW.670) to support the allegations against the present appellant  

A-81.  

291. Deposition of Tikaram Shrawan Bhal (PW-191):

He has recorded the confessional statement of Gambas (A-

81) as well as the confession of Faki Ali Faki Ahmed Subedar (A-

74).  He  had  deposed  that  he  had  recorded  the  same strictly  in  

accordance with law, and it was a voluntary confessional statement  

and  after  recording  the  same  he  had  given  time  to  re-think  as  

required in law, and after recording the confession, the same was  

forwarded to CJM, Alibagh on 21.5.1993.  

292. The issue whether confessional statements made by Faki Ali  

Faki  Ahmed Subedar  (A-74)  and Janardhan Pandurang Gambas  

(A-81)  were voluntary, had been considered by the Designated  

Court  in its  judgment and after  considering all  the objections it  

came to the conclusion that Faki Ali Faki Ahmed Subedar (A-74)  

and Janardhan Pandurang Gambas (A-81) had made confessional  

statement  voluntarily  as  T.S.  Bhal  (PW.191),  S.P.,  Raigad  has  

deposed  that  the  appellant  (A-81)  was  produced  by  Ashok  

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Krishanji  Chandgude  (PW.670)  before   him on 20.5.1993  and  

after asking certain questions to him, T.S. Bhal (PW.191) was fully  

satisfied  that  appellant  (A-81)  wanted  to  make  a  voluntary  

confession. He was again asked to be produced on 21.5.1993 and  

on  that  day  appellant  (A-81)  narrated  the  entire  matter  and his  

confession  has  been  recorded  verbatim.   The  Designated  Court  

rejected the suggestion in his (A-81) Section 313 Cr.P.C. statement  

before the court that he had never been produced before T.S. Bhal  

(PW.191) on either of the two days as claimed by the prosecution  

and his thumb impression had been obtained on blank papers while  

he  was  in  custody  of  Alibagh  Police  Station.  The  theory  was  

rejected.  

293. After  appreciating  the  evidence  on  record  the  learned  

Designated Court came to the conclusion that  the involvement of  

the appellant (A-81) in landing at Dighi Jetty is established,  but  

there is hardly any evidence to reveal that the appellant (A-81) had  

knowledge of contraband goods being arms and ammunitions, and  

thus the appellant (A-81) cannot be held liable for offence under  

Section 3(3) TADA on said count i.e. first limb of second charge,  

but  guilty  for  offence  punishable  under  Section  111  read  with  

Section 135(b) of Customs Act, 1962 for the same.

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However it was  held that the appellant (A-81) after having  

acquired the knowledge about nature of said contraband being arms  

and  ammunition  and  still  having  committed  acts  mentioned  in  

second  and  third  limbs  of  second  charge  i.e.  concealment  of  

weapons  in  mango  groves  and  dumping  of  cartiridges  and  

magazines  in  Khandalgaon  creek,  he  would  be  guilty for  

commission  of  offence  under  Section  3(3) TADA  for  the  said  

offences.

294. More so, the Designated Court has taken into consideration  

the other confessional statements of other accused to support the  

prosecution  case.  We  are  not  inclined  to  interfere  with  the  

judgment of  the Designated court.  The appeal  with reference to  

Gambas (A-81) lacks merit and is accordingly dismissed.

IV.    Sayed @ Mujju Ismail Ibrahim Kadri (A-104):   

295.   Appellant (A-104) was further charged with aiding, abetting  

and knowingly and intentionally  facilitating the commission of  

terrorist acts by transporting AK 56 rifles in his motor jeep  No.  

MH-06-A-9175 from Mhasla to Bombay and delivering it to co-

accused. He was further charged for possessing and concealing five  

plastic  boxes  containing  initiating  devices  of  hand  grenades  

smuggled  into  India  for  committing  terrorist  acts,  thus  charged  

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under  Section  3(3)  TADA.  He  was  lastly  charged  with  

contravening the provisions of Arms Act and Rules and acquiring  

the possession of fire arms and ammunition and five plastic boxes  

containing initiating devices of hand grenades, thus charged under  

Section 6 TADA.  

296. He  was  acquitted  of  first  charge  of  criminal  conspiracy.  

However,  he  was  convicted  under  Section  3(3)  TADA  and  

sentenced  to  suffer  5  years  RI  and a  fine  of  Rs.10,000/-  and a  

suitable R.I. for default of payment of fine.    

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

appellant (A-104) has submitted that the appellant has not made  

any confession that can be used against him and placing a heavy  

reliance  on  the  confessional  statement  of  the  co-accused  is  

erroneous. Moreover, the appellant has already served 3 years of  

the sentence that was awarded to him. Thus, the appeal should be  

allowed.

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

State has submitted that the recovery was made at the behest of the  

appellant  and his  knowledge of  the  place  where  the  contraband  

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material was kept implicates him in the present case. Therefore, the  

appeal deserves to be dismissed.

299. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

300. Evidence against the appellant (A-104):  

(a) Deposition of Laxman Nakti (PW-91)

(b) Deposition of Vasant Jadhav (PW-484)

(b) Deposition of Dayanand Dhome (PW-573)

(c) Deposition of Pratap Dighavkar (PW-586)

301. Deposition of Laxman Nakti (PW-91):

He  proved  the  recovery  of  arms  and  ammunition  on  

17.4.1993  wherein  he  deposed  that  recovery  was  made  at  the  

behest of disclosure statement of  appellant (A-104). He has further  

deposed that the police party whom the said witness accompanied  

was led by appellant (A-104) to a lavatory in the courtyard of the  

house of Subedar. He removed the dry leaves on the ground at the  

said place and thereafter took out a plastic bag which was below  

the said dry leaves. The mouth of the said bag was closed by tying  

the same by means of a string. It was a green colour plastic bag and  

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the  same  was  opened  and  five  tin  boxes  of  similar  size  were  

recovered. He has also proved the disclosure panchnama.  

302. Deposition of Vasant Jadhav (PW-484):

He  revealed  that  he  was  incharge  of  bomb detection  and  

disposal squad. On 18.4.1993, P.S.I. Gahrate from Mhasla Police  

Station  came to  his  office  with  a  letter  sent  by  Sub-Divisional  

Officer,  Raigad  and  a  plastic  box.  He  examined  the  material  

suspected to be explosives in the plastic box. He sent it for FSL  

and received the report.  (Ext. 2650).  

303. Deposition of Dayanand Dhome (PW-573):

In his deposition, he revealed that he was instructed to seize  

motor jeep bearing registration No. MH-06-A-1 in connection with  

C.R.No. 6/1993 and he was the person who arrested appellant (A-

104)  in  the  presence  of  two  panchas  and  the  panchnama  was  

prepared  (Ext.  1996).  He  has  also  deposed  that  on  being  

interrogated,  appellant  (A-104)  gave  information  regarding  

explosives  which  were  recovered  in  presence  of  the  panch  

witnesses.   It  was  recovered  from the  lavatory  of  the  house  of  

Subedar. It contained a military colour bag containing five plastic  

round  shape  boxes.  The  panchnama  was  prepared  and  it  was  

proved before the court.  

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304. Deposition of Pratap Dighavkar (PW-586):

He  revealed  that he  instructed  P.S.I.  Gahrate  to  send  the  

explosives seized on 17.4.1993 for Bomb Disposal Unit, Santacruz  

and he proved the letter by which the said explosives were sent for  

disposal.  (Ext.  2024).  He  (PW.  586)  further  deposed  that  the  

sample was taken out of the recovery and sent for FSL report.  

305. The learned Designed Court  after appreciating the evidence  

concluded  that  the  appellant  (A-104)  having  knowledge of  said  

articles being kept at said place reveals his authorship of keeping  

them at said place. The same not being rebutted by the appellant  

(A-104) would lead to conclusion of him being in possession of  

contraband material  and liable  for  commission of  offence  under  

section 3(3) TADA i.e. second limb of second charge.  

However, it was held that there being no sufficient evidence  

to  establish  offence  under  section  6  TADA,  he  cannot  be  held  

liable for the same. Similarly there being no evidence to establish  

that the appellant (A-104) transported AK-56 rifles in motor jeep  

from Mhasla to Bombay i.e. first limb of second charge, he cannot  

be held guilty for the same.  

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306. We find no cogent evidence on record requiring interference  

with the judgment  of  the learned Designated Court.  The appeal  

with  reference  to  the  appellant  (A-104)  lacks  merit  and  is  

accordingly dismissed.

V.   Srikrishna Yeshwant Pashilkar (A-110):

307. Appellant  (A-110) was  further  charged  for  allowing  the  

accused persons to smuggle and transport  arms and ammunition  

into India for the purpose of committing terrorist acts, by illegal  

omission  to  thoroughly  check  the  motor  lorries  carrying  arms,  

ammunition and other contraband though intercepted by  them on  

the night of 9.1.1993 at Gondghar Phata.  He was further charged  

with failing to seize the aforesaid motor truck  and its contents in  

lieu of bribe of Rs.7 lakhs agreed by all of them on negotiation  

with the co-accused Uttam Potdar (A-30), Custom Inspector Gurav  

(A-82), thereby, facilitating the commission of terrorist activities  

on 12.3.1993.  Thus, charged under Section 3(3) TADA.  

308. He was awarded sentence  of  6 years   under  Section 3(3)  

TADA and a fine of Rs.25,000/-, in default of payment of fine, to  

suffer further RI of 6 months.  He has already served more than 3  

years.  

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

appellant has submitted that the appellant (A-110) has not made  

any confession and reliance on the confessional statement of the  

co-accused by the learned Designated Court was erroneous. Thus,  

the appeal deserves to be allowed.

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

State  has  submitted  that  Uttam  Shantaram  Potdar  (A-30)  

established  the  presence  of  the  appellant  (A-110)  during  the  

incident of interception of trucks at Gondghar Phata therefore, the  

appellant  was involved in  allowing arms and ammunition to  be  

transported into India. Thus, the appeal deserves to be dismissed.

311. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

312. Evidence against the appellant (A-110):

(a) Confessional statement of Uttam Potdar (A-30)

(b) Deposition of Dilip Pansare (PW-97)

(c) Deposition of other witnesses  

313. Confessional Statement of Uttam Potdar (A-30):

In  his  confessional  statement,  he  stated  that  as  the  

smuggling party did not have money to pay to the police when they  

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were intercepted while smuggling the contraband, five silver bricks  

from the first truck were given to the appellant (A-110) who was  

specifically named by the co-accused (A-30).   

In  the  confessional  statements  of  co-accused  Dawood  

Taklya Mohammed Phanse (A-14), Jaywant Keshav Gurav (A-82),  

Salim Kutta (A-134) and Mechanic Chacha (A-136) though did not  

name the appellant (A-110) specifically but they corroborated the  

version  of  the  prosecution  of  interception  by  the  police  of  

Shrivardhan  Police  Station  headed  by Vijay  Krishnaji  Patil  (A-

116) and alongwith silver bricks, some wooden boxes were also in  

the truck.   

314. Deposition of Dilip Pansare (PW-97):

In  his  deposition  he  revealed  that  he  was  working  as  a  

mechanic  in  the  State  Road  Transport  Corporation  and  was  a  

childhood friend of Uttam Potdar (A-30) who used to help him in  

transporting and smuggling the goods alongwith others.  He had  

brought  the  truck  for  transporting  the  smuggled  contraband  on  

9.1.1993  and  when  they  were  bringing  the  contraband  in  two  

trucks  one  of  them  was  being  driven  by  him.  They  were  

intercepted  by  the  police  of  Shrivardhan  Police  Station  at  

Gondghar Phata junction. He (PW 97)   stopped the vehicle on  

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Page 189

getting the signals by the police. The appellant (A-110) got down  

from the jeep and he heard the appellant (A-110) shouting to take  

out the key of the said vehicle and bring the driver to him. He (A-

110) came near the truck and took away the keys of the first truck.  

Other police men started shouting that there was silver in the truck.  

Mechanic Chacha (A-136), Shabir Kadri and Uttam Potdar (A-30)  

negotiated with the officer Vijay Krishnaji Patil (A-116) for about  

half an hour. Gurav, the Customs Officer (A-82) also arrived  and  

after  negotiating for  about  half  an hour,  five  silver  bricks  were  

taken from the truck in the police jeep by Hawaldar and the key of  

the truck was returned to the said witness (PW. 97).  

315. Sujjat  Peoplankar  (PW-158),  Bhaskar  Boda  (PW-159),  

Gopichand  Sathnag  (PW-160),  Tukaram  Kalankar  (PW-161),  

Ganpat  Giri  (PW-162),  Anant  Lad  (PW-166)  and  Dhiryasheel  

Koltharkar  (PW-167)  have  deposed  that  the  defence  taken  by  

Vijay Krishnaji Patil (A-116) and the appellant (A-110) that they  

had gone to a village for patrolling was false as none of them had  

reached that village on that day.      

316. The  learned  Designated  Court  after  appreciating  the  

evidence  came  to  the  conclusion  that  landing  of  contraband  

material took place at Dighi Jetty on 9.1.1993 during night time  

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and goods were transported from said Jetty in two trucks. The said  

contraband  contained  arms  and  ammunition,  AK-56  rifles  and  

bullets  etc.  The police  party  of  Shrivardhan had intercepted  the  

convoy carrying said contraband at Gondghar Phata. Furthermore it  

was  held that confessions of co-accused and Dilip Bhiku Pansare  

(PW-97) reveal the identity and involvement of the appellant (A-

110) in the landing episode.  

However, it was further held that the appellant (A-110) was  

member  of  police  party  headed  by his  superior  Vijay  Krishnaji  

Patil (A-116) and though the appellant (A-110) could not be said to  

be  responsible  for  taking  decision  of  permitting  further  

transportation of said goods, however taking into account the fact  

that  he  had not  reported about  Vijay  Krishnaji  Patil  (A-116)  to  

higher  officials,  reveals  that  he  had  also  connived  with  Vijay  

Krishnaji Patil (A-116) in performing said acts.  

317. We find no evidence on record requiring interference with  

the  judgment  of  the learned Designated  Court.  The appeal  with  

reference  to  appellant  (A-110)  lacks  merit  and  is  accordingly  

dismissed.   

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318. So  far  as  the  serious  objection  that  when  the  contraband  

material,  arms  and  ammunition  recovered  at  the  disclosure  

statements of the appellants were opened in the court the material  

they were wrapped were subsequent  to the date of  recovery i.e.  

8.4.1993.  This  has  been  explained  fully  in  the  court  by  Pratap  

Dighavkar (PW-586).  

He deposed that as some of the samples had to be taken out  

of the recovered material and sent for FSL report, it was re-opened  

on  18.4.1993  and  samples  had  been  sent  for  FSL.  Thus,  the  

contraband  materials  recovered  on  the  disclosure  statement  of  

these appellants were further wrapped in newspapers. So, it was  

quite  possible  that  newspapers  upto  18.4.1993  could  have  been  

used.  None  of  the  appellants  had  put  any  further  question  on  

possibility of tampering of the evidence to the said witness (PW-  

586),  though  he  proved  the  letter  with  which  the  contraband  

materials were sent for FSL and the FSL report itself, but none of  

the  appellants  put  any question  in  his  cross-examination  on the  

possibility  of  tampering  of  the  material  etc.   He  was  the  only  

person who could have explained all the questions raised by the  

appellants before us.  

More  so,  Ms.  Farhana  Shah,  learned  counsel  for  the  

appellants could not satisfy the court as under what circumstances  

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none of  the  appellants  could  raise  this  issue  before  the  learned  

Designated Court.  

In view of the above, the contention raised does not have  

any force.  The appeal is dismissed accordingly.  

Criminal Appeal Nos. 401 and 595 of 2011

319. These  appeals  have  been  preferred  by  the  State  against  

Abdullah Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-

74) and Janardhan Pandurang Gambas (A-81), who were acquitted  

of  the charge of  larger  conspiracy.  The evidence against  all  the  

three respondents had elaborately been dealt with in the connected  

appeal filed by them.  The learned Designated Court has dealt with  

the  issue  after  considering  the  entire  evidence  on  record  and  

appreciating the depositions as well as the confessional statements  

made by the parties.   

320.     We are fully aware of our limitation to interfere with an  

order  against  acquittal.  In  exceptional  cases  where  there  are  

compelling circumstances and the judgment under appeal is found  

to be perverse, the appellate court can interfere with the order of  

acquittal. The appellate court should bear in mind the presumption  

of  innocence  of  the  accused  and  further  that  the  trial  Court’s  

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acquittal bolsters the presumption of his innocence. Interference in  

a  routine  manner  where  the  other  view  is  possible  should  be  

avoided,  unless  there  are  good  reasons  for  interference.  (Vide:  

State of Rajasthan v. Darshan Singh @ Darshan Lal,  AIR 2012  

SC 1973).

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

interfere  with  the  order  of  the  Designated  Court  so  far  as  the  

acquittal of the respondents on a particular charge is concerned.  

The appeals lack merit and are liable to be dismissed.  

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CRIMINAL APPEAL NO. 171  OF 2008

Ashok Narayan Muneshwar                    …Appellant

Versus

State of Maharashtra through STF,CBI         … Respondent                      

AND  

CRIMINAL APPEAL NO. 172  OF 2008

Arun Pandari Nath Madhukar Mahadik                 …Appellant

Versus

State of Maharashtra through STF, CBI,           … Respondent

AND

CRIMINAL APPEAL NO. 403 of 2011

State of Maharashtra                  …Appellant

Versus

Ashok Narayan Muneshwar & Ors.            … Respondents

Criminal Appeal No. 171 & 172 of 2008

322. These appeals have been preferred against the judgments and  

orders dated  26.9.2006 and 21.5.2007, passed by the Special Judge  

of the Designated Court under the TADA for the Bombay Blast,  

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

the appellants have been convicted under Section 3(3)  TADA.   

They have been acquitted of the first charge of conspiracy,  

but have been convicted under Section 3(3) TADA  and have been  

sentenced to suffer RI of 6 years  alongwith a fine of Rs.25,000/-,  

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

months.   They have already served a sentence of 4 years and 3  

months.

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

A. In addition to the first charge of conspiracy, the appellants  

have been charged for intentionally aiding and abetting terrorists,  

by allowing them to smuggle and transport arms and ammunition  

into  India  for  the  purpose  of  committing  terrorist  acts,  by  their  

illegal omission to thoroughly check motor lorries carrying arms,  

ammunition  and  other  contraband,  though  the  same  had  been  

intercepted by their team on the night of 9.1.1993, at Gondghar  

Phata, and for their failure to seize the aforesaid motor truck and its  

contents, in lieu of a bribe of  Rs. 7 lakhs which had been agreed to  

and accepted by them, after negotiations with terrorists and their  

associates.  Thus,  they  have  been  charged  under  Section  3(3)  

TADA.    

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

held the appellants guilty and awarded punishment as referred to  

hereinabove.

Hence, these appeals.

324. Shri P.K. Dey, learned counsel appearing for the appellants,  

has submitted that sufficient evidence on record does not exist to  

convict  the  appellants.   In  their  confessional  statements,  Uttam  

Shantaram  Potdar  (A-30)  and  Jaywant  Keshav  Gurav  (A-82),  

have  not  made  any  reference  to  the  smuggling  of  arms  and  

ammunition, infact, they have spoken of the smuggling of silver.  

Therefore, the question of framing any charge against the present  

appellants under TADA, in view of such confessional statements  

could  not  arise.   Moreover,  the  memorandum  annexed  to  the  

confessional statement is a part and parcel of the confession,  and  

the same has to be filled up simultaneously, and not subsequently.  

So  far  as  the  confessional  statement  of  Uttam Shantaram  

Potdar (A-30) is concerned, the said memorandum had been sent  

subsequently.  Thus,  the  same  was  in  violation  of  the  statutory  

provisions  of  TADA and,  the  TADA Rules,  particularly,  as  the  

same  was  not  in  compliance  with  the  requirements  of  sections  

15(3)(b) and 15(5) of  the TADA Rules.   

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The said confessional statement required a certificate under  

Rule 15(4), and such a certificate was not annexed by the officer  

recording the confessional statements of Uttam Shantaram Potdar  

(A-30), Jaywant Keshav Gurav (A-82) and Salim Kutta (A-134).  

The confessional statement of Salim Kutta (A-134) was recorded  

on 19.8.1995, and the same was sent to the CMM on 24.8.1995.  

Therefore, the same is not valid. It has also been contended that  

after the recording of the confession on 19.8.1995 at Ahmedabad,  

Salim Kutta (A-134) had been brought to Bombay by the CBI to  

the STF office, and that subsequently, he had been taken back to  

Ahmedabad on 24.8.1995 and that here, he was  produced before  

the CMM Ahmedabad.

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

respondent, has submitted that these two appellants have failed to  

perform their duty.  They had not checked the boxes, they had only  

counted the bricks in the trucks.  The previous amount of bribe of  

Rs.25,000/-   was  enhanced  to  a  sum  of  Rs.10  lakhs   after  a  

negotiation of about half an hour.  Therefore, the matter is not one  

of mere negligence, but of intentional facilitation of the accused  

persons in the smuggling of arms and ammunition into the country.  

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Page 198

326. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

327. Evidence against the appellants:

(a) Confessional statement of Uttam Shantaram Potdar (A-30)

(b) Confessional  statements  of  Dawood  Taklya  (A-14)  and  Dadabhai (A-17)

(c) Confessional statement of Jaywant Keshav Gurav (A-82)

(d) Confessional statement of Salim Kutta (A-134)

(e) Confessional statement of Mechanic Chacha (A-136)

(f) Deposition of Dilip Bhiku Pansare (PW-97)

(g) Deposition of Yeshwant Kadam (PW-109)

(h) Deposition of Pramod Mudbhatkal (PW-681)

(i) Deposition of other witnesses

328. Uttam Shantaram Potdar (A-30), Jaywant Keshav Gurav  

(A-82), Salim Kutta (A-134) and Mechanic Chacha (A-136) in  

their confessional  statements,  while narrating the incident of the  

interception of trucks at Gondghar Phata, have stated the presence  

of 5-7 police officials in the party, headed by VK Patil (A-116),  

though they have not specifically named the appellants. This police  

party further allowed the goods to go past, without proper checking  

after negotiating a bribe to the tune of Rs.7 lakhs. As the smugglers  

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did not have said amount of Rs.7 lakhs with them at the said time,  

they had given five silver  bricks that  had been smuggled in the  

landing, to the police as security and subsequently, upon making  

them payment of the said amount to the officials, the silver bricks  

had been returned to the smugglers.  

Confessional statement of Uttam Potdar (A-30):

329. He has stated that on 9.1.1993, at night, after the smuggling  

of the goods, they had been intercepted by the Shrivardhan police  

near Gondghar Phata. Upon inquiry, Shri Patil (A-116), SI of the  

Shrivardhan  Police  Station,  had  asked  Salim  (A-134)  why  the  

money promised to them had not been paid, as regards the earlier  

landing.  Uttam Potdar (A-30) had told him that he had given the  

said  money  to  Ramesh  Mali  Hawaldar.   SI  Patil  (A-116)  had  

seemed very annoyed.  Mechanic Chacha (A-136) had then offered  

a sum of Rs. 10 lakhs to Hawaldar Ramesh Dattatray Mali (A-101)  

and  Hawaldar  Ashok  Narayan  Muneshwar  (A-70),  who  were  

counting the silver bricks that had been loaded into the truck. There  

were 175 bricks in one truck, and in the other, there were about 100  

bricks and also some boxes. Upon being asked by the Hawaldar to  

reveal the contents of the boxes,  Mechanic Chacha (A-136) had  

said  that  the boxes  contained watches  and that  as  there  was no  

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Page 200

cash,  Mechanic Chacha (A-136) had taken out five silver bricks  

from the first truck and had given them to Pashilkar, policeman.  

Thus, Uttam Potdar (A-30) has specifically named the appellant,  

(A-70) as a member of the party who had counted the silver bricks.  

C  onfessional statement of Jayawant Keshav Gurav (A-82):    

330. In  his  confessional  statement,  he  has  corroborated  the  

confession of Uttam Potdar (A-30), pointing out that he had also  

reached the place where the police had intercepted the two trucks  

carrying the smuggled goods, and that at such time, the police Sub-

Inspector  Patil  had  asked  Jaywant  Keshav  Gurav  (A-82)  what  

should be done, and that the police thereafter, upon negotiating for  

about half an hour had, released the detained trucks.   

331. Dawood  Taklya  (A-14)  and  Dadabhai  (A-17) in  their  

confessional statements, have revealed that a sum of Rs.25,000/-  

each had been given on two separate occasions to the Shrivardhan  

Police Station to seek assistance in the organisation of the landings.  

332. Salim Kutta (A-134) and Mechanic Chacha (A-136) have  

supported the case of the prosecution, and have corroborated the  

confessions  of  Uttam  Shantaram  Potdar  (A-30)  and  Jaywant  

Keshav Gurav (A-82).

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D  eposition of Dilip Bhiku Pansare (PW-97):   

333.  In his deposition, he has revealed that he had participated in  

the landing with Uttam Potdar (A-30).  He had been driving the  

truck carrying the smuggled goods on 9.1.1993 from Dighi Jetty,  

and he has corroborated the confessional statement of Uttam Potdar  

(A-30) to the extent that Pashilkar (A-110)  had taken the key to his  

vehicle, and that after checking the contents of their  truck, some  

police  personnel  had  shouted  out  that  the  same  was  silver.  

Mechanic  Chacha  (A-136)  had  also  come  there  and  he  had  

negotiated with Vijay Krishanji Patil (A-116) who had also been  

present at that time.  Uttam Potdar (A-30), Jayant Keshav Gurav  

(A-82)  from  Customs  and  Mechanic  Chacha  (A-136)  etc.  had  

talked to the police for about half an hour, and as the smuggling  

party did not have cash with them, five silver bricks had been given  

as security to them.  The police had searched the first truck for a  

long  time,  while  they  had  taken  only  10  minutes  to  check  the  

second one.     

334. The appellant (A-70) had produced a sum of Rs.30,000/- on  

24.4.1993 in presence of two witnesses, namely, Yeshwant Kadam  

(PW-109) and Vinod Chavan (PW-590), who had been brought by  

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his father-in-law, and in this respect, a panchnama (Ext. 565) was  

prepared.  

As  regards  the  same,  Yeshwant  Kadam (PW-109)  has  

deposed that he had been unable to identify the accused who had  

produced  the  said  cash,  which  had  been  seized  under  the  

panchnama (Exh. 565) in court.   

335. The  appellant’s  (A-99)  house  had  been  searched  in  the  

presence of the panch witnesses Yeshwant Kadam (PW-109) and  

Chandrashekhar  (PW-622),  who were  police-men,  and  from the  

said  house,  a  sum  of  Rs.59,200/-  had  been  recovered.  In  this  

respect,  a  panchnama  was  prepared  in  the  presence  of  the  

aforementioned  two panch witnesses.  

  336. Sujjat  Peoplankar  (PW-158),  Bhaskar  Boda (PW-159),  

Gopichand Sathnag (PW-160), Tukaram Kalankar (PW-161),  

Ganpat Giri (PW-162), Anant Lad (PW-166) and Dhiryasheel  

Koltharkar (PW-167) have deposed, that both the appellants (A-

70 and A-99)  had not  come to  their  village  on patrolling  duty.  

These witnesses were produced by the prosecution to disprove the  

version of the defence’s alibi, to the extent that they had not been  

present  in  the  police  party  which  had intercepted  the  smuggled  

goods,  rather,  they  had  been  on  patrolling  duty.  The  present  

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appellants  (A-70  and  A-99)  may  be  correct  in  contending  that  

simply because these witnesses had not seen the appellants in their  

village, the same cannot be taken to mean that the appellants had  

not been on patrolling duty.  

Deposition of Pramod Mudbhatkal (PW-681):

337. He was an officer of the CBI who had been associated with  

the  investigation  of  the  Bombay  Blast.  He  has  deposed  that  

Omprakash Chhatwal (PW-684) had been a member of the team  

investigating the Bombay Blast.   Pramod Mudbhatkal  (PW-681)  

had arrested  Mechanic Chacha (A-136) under the supervision of  

Omprakash  Chhatwal  (PW-684),  and  that  he  (PW-684),  had  

recorded the confessional statement of Mechanic Chacha (A-136)  

and that Pramod Madbhatkal (PW-681) had requested him (PW-

684) to record his confessional statement and that he had chosen  

him because  he (PW-684) was conversant with the matter.  

338. After  appreciating  the  evidence  on  record,  the  learned  

Designated Court came to the conclusion that  the police party of  

Shrivardhan had intercepted the convoy carrying said contraband  

near Gondghar Phata. The entry in the log book of the police jeep  

has revealed that the same had been driven by the appellant (A-99),  

and this has not been disputed by the appellant (A-99). Hence, it is  

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clear that appellant (A-99) had been driving the said police jeep  

when  the  party  was  headed  by  Vijay  Krishnaji  Patil  (A-116).  

Furthermore,  it  has  been  held  that  the  confessions  of  the  co-

accused  and of  Dilip  Bhiku Pansare  (PW-97)  clearly reveal  the  

involvement of the appellants in the landing episode.

It  has  also  been  held  that  the  appellants  had  infact  been  

members  of  the  police  party  headed  by  their  superior  Vijay  

Krishnaji Patil (A-116), and that though the appellants cannot be  

held to be responsible for taking the decision to permit the further  

transportation of said goods, however, taking into account the fact  

that  they  had  not  reported  Vijay  Krishnaji  Patil’s  (A-116)  

behaviour to higher officials, and further, the recovery of a large  

amount  of  money from them, clearly reveals  that  they had also  

connived with Vijay Krishnaji  Patil  (A-116)  to  commit the said  

acts. Thus, they are liable under section 3(3) TADA. However, as  

Vijay Krishnaji  Patil  (A-116),  was  primarily  responsible  for  the  

decision taken by the police party and also for the handling of the  

negotiations, the appellants  cannot be held guilty for commission  

of  the offence of  conspiracy,  as  they were acting in accordance  

with the instructions and directions  of  Vijay Krishnaji  Patil  (A-

116).

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339.    We find no cogent reason to interfere with the decision of  

the  learned  Designated  Court.  The  appeals  lack  merit  and  are  

accordingly dismissed.

Criminal Appeal No. 403 of 2011

340. This appeal has been preferred against the respondents only  

on the limited issue that the respondents have been acquitted by the  

Special  Judge of the Designated Court  under the TADA for the  

charge of conspiracy.  

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

appellant-State  has submitted that  these respondents  were police  

constables  who  had  been  posted  at  the  relevant  time  at  the  

Shrivardhan Police Station.  They had intercepted the contraband  

(arms, ammunition and explosives etc.) at Gondghar Phata. They  

had checked the two trucks carrying the said contraband for about  

15 and 10 minutes respectively, and that despite the fact that the  

arms had been packed differently as compared to the silver, they  

had omitted to inspect the said goods properly. Moreover, the fact  

that that they had asked for enhancement of  the amount of bribe to  

be paid to  the police  for  each landing,  indicates  that  they were  

aware of  the contents  of  the contraband (arms,  ammunition and  

explosives)  as  well,  which  gave  them  this  bargaining  power.  

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Furthermore,  the Customs Inspector  had issued a warning to all  

authorities, stating that he had definite information that arms and  

ammunition would be brought  in  by sea,  owing to which  they  

should remain alert and ensure proper checking.  Therefore, they  

ought to have been convicted for the charge of conspiracy as well.   

342. On the contrary, Shri P.K. Dey, learned counsel appearing  

for the respondents, has submitted that since the respondents had  

been  subordinate to the actual recipients of the bribes, which had  

been  taken   to  facilitate  the  landing  of  the  contraband,  they  

themselves  had  been   unaware  of  the  fact  that  arms  and  

ammunition  could  have  been brought  into  the  country  once  the  

vehicles had been checked.  They may have been negligent in the  

performance of their duties, but by no stretch of the imagination,  

can it be held that they had also conspired in the execution of the  

transaction. They have been convicted under Section 3(3)  TADA  

and their appeals have been heard alongwith this appeal. Hence, no  

further consideration is required, particularly keeping in mind the  

parameters that have been laid down by this court for interference  

against an order of acquittal.  Therefore, this appeal is liable to be  

dismissed.  

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343. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

344. After  appreciating the entire evidence,  the learned Special  

Judge  reached  a  conclusion  that  though  these  respondents-

constables  may have been negligent  in  the performance of  their  

duties, they cannot be held to be parties to the conspiracy.  The  

learned Special Judge has taken a view that as their presence had  

been established at the place of interception, a case under Section  

3(3) TADA can be established as a result of the cumulative effect  

of  the said evidence.  However,  in view of the fact  that  there  is  

nothing on record to show their involvement in the conspiracy, or  

of them having committed any overt acts in the execution of such  

conspiracy,  the question of  convicting them for conspiracy does  

not arise. As their acts do not transcend beyond their presence and  

their negligence in the interception and checking of the vehicles,  

they are  entitled to the benefit of doubt as far as the conspiracy is  

concerned.   All  the constables were of  inferior  ranks,  and were  

acting under the instructions of the officers who had been present  

at the spot. Despite the fact that all the four respondents had been  

members  of  the  police  party,  and  were  hence  responsible  for  

allowing  the  further  transportation  of  the  smuggled  contraband  

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goods, there appears to exist some distinction between the cases of  

the said accused, and of Vijay Krishnaji Patil (A-116), the head of  

the police party, without whose consent and connivance the said  

goods could not have been permitted to be transported any further.  

Therefore,  in his  presence,  the respondents-constables cannot  be  

held as  responsible  for  taking the decision to permit  the further  

transportation of the said goods. Thus, they are liable only for the  

offences punishable under Section 3(3) TADA.  

345. We are  fully  aware  of  our  limitation  to  interfere  with  an  

order  against  acquittal.  In  exceptional  cases  where  there  are  

compelling circumstances and the judgment under appeal is found  

to be perverse, the appellate court can interfere with the order of  

acquittal. The appellate court should bear in mind the presumption  

of  innocence  of  the  accused  and  further  that  the  trial  Court’s  

acquittal bolsters the presumption of his innocence. Interference in  

a  routine  manner  where  the  other  view  is  possible  should  be  

avoided,  unless  there  are  good  reasons  for  interference.  (Vide:  

State of Rajasthan v. Darshan Singh @ Darshan Lal,  AIR 2012  

SC 1973).

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346. We have given our conscious thought to the said reasoning  

that has been given by the learned Designated Court, and we are of  

the  view  that  the  same  does  not  require  any  interference.  The  

appeal lacks merit and is dismissed accordingly.   

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CRIMINAL APPEAL NO. 1630 OF 2007

Liyakat Ali Habib Khan                     …Appellant

Versus

State of Maharashtra        … Respondent                      

AND

CRIMINAL APPEAL NO. 1029 OF 2012

State of Maharashtra      …Appellant

Versus

Liyakat Ali Habib Khan           … Respondent                      

Criminal Appeal No. 1630 of 2007  

347. This  appeal  has  been  preferred  against  the  judgment  and  

order dated 30.5.2007 passed by Special Judge of the Designated  

Court  under  the  TADA for  Bombay  Blast,  Greater  Bombay,  in  

Bombay  Blast  Case  No.  1/1993,  convicting  the  appellant  under  

Section 3(3) TADA, and awarding the punishment of 5 years RI  

with a fine of Rs.25,000/- and in default  of payment of fine, to  

further suffer 6 months RI. He was further convicted under Section  

5  read  with  Section  6  of  Explosive  Substances  Act,  1908  and  

awarded  the  punishment  of  4  years  RI  alongwith  a  fine  of  

Rs.10,000/-, and in default of payment of fine, to suffer further RI  

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of  two  months.   Both  the  sentences  were  directed  to  run  

concurrently.  

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

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

(A-85) was charged under Section 3(3) TADA, for facilitating the  

commission of terrorist acts by allowing Mushtaq @ Tiger Abdul  

Razak  Memon,  Yakoob  Khan  @  Yeda  Yakoob  Wali  Mohmed  

Khan and their associates to store 80 cartons of RDX explosives in  

his godown at M.I.D.C. Thane Belapur, which had been smuggled  

into  India  for  committing  terrorist  acts.   The  appellant  is  also  

charged for aiding and abetting in carrying and transportation of  

RDX explosives from his godown.  He was further charged under  

Section 5 TADA  for possessing the said explosives unauthorisedly  

in Greater Bombay,  Thane district.  He was also charged under  

Section 6 TADA for contravening the provisions of the Explosives  

Act,  1884;  Explosives  Substances   Act,  1908;  and  Explosives  

Rules 1983, by keeping in his godown the said 80 cartons of RDX  

explosives.  Lastly, he had been charged under Section 4 read with  

Section  6  of  the  Explosives  Substances  Act,  1908  for  having  

possession  of  the  80  cartons  of  RDX  explosives  stored  in  his  

godown.  

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B. After  the  conclusion  of  the  trial  and  appreciating  the  

evidence,  the  appellant  was  acquitted  of  some  of  the  above-

mentioned  charges.  However,  he  was  convicted  under  Sections  

3(3) and 6  TADA as referred to hereinabove.  

Hence, this appeal.  

349. Shri  Mushtaq  Ahmad,  learned  counsel  appearing  for  the  

appellant  has  submitted  that  the  appellant  could  not  have  been  

convicted under the provisions of TADA at all for the reason that  

the godown wherein the alleged explosives had been stored did not  

belong to him. He was neither the owner of the godown, nor did he  

have any control over it.  It belonged to his father who knew the  

other co-accused and it was on the instructions of his father that the  

appellant accompanied them at the time of storing. More so, the  

appellant was not informed at any stage about the contents of the  

cartons  and  did  not  become  aware  of  the  same  until  the  end.  

Therefore, the conviction is liable to be set aside.    

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

appearing for the respondent has vehemently opposed the appeal  

submitting  that  the  appellant  was  aware  of  the  contents  of  the  

cartons. While initially he may not have known, he was informed  

by the co-accused Suleman, while returning from the godown that  

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the  cartons  contained  explosives.   Thus,  the  facts  and  

circumstances of the case do not warrant any interference by this  

court and, therefore, the appeal is liable to be dismissed.  

351. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

352. Evidence against the appellant:

(a) Confessional  statement of the appellant Liyakat  Ali Habib  

Khan (A-85)

(b) Confessional statement of Murad Ibrahim Khan (A-130)

(c) Confessional statement of Suleman Mohd. Kasam Ghavate (A-18)  

353. Confessional  statement  of  the  appellant  Liyakat  Ali  Habib Khan (A-85):

At the time of incident the appellant was 34 years of age and  

he had voluntarily made the confession disclosing that his father  

had taken the godown at M.I.D.C., Thane, Belapur Road, in which  

construction took place and appellant had been working therein. He  

was  closely  acquainted  with  the  other  co-accused  and  Yakoob  

Khan (AA), his uncle, had come alongwith other co-accused Tiger  

Memon and Nisar to his father in the second week of February,  

1993, and requested him to allow them to keep some goods for few  

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months in the godown at Thane. They were permitted by his father  

to store the goods. They had gone there but could not open the lock  

of the godown.  Therefore, they called the appellant at midnight  

and subsequently came to his house in a jeep and took him (A-85)  

with them.  He also met Javed Chikna, Anwar Izaz and other co-

accused on the way. He was directed by his uncle to keep watch for  

a tempo which was bringing certain goods.  He waited for a while  

but the tempo did not arrive. So he went inside the factory and  

slept there.  Thereafter, Tiger Memon (AA) alongwith Nisar came  

to the factory in the jeep of Tiger Memon (AA) and tried to open  

the lock. As they could not open the lock they had to break it with  

an axe. However, subsequently they came to know that it was not  

the  correct  godown.  Thus,  Tiger  Memon  called  at  his  (A-85)  

residence  and  asked  the  correct  number  of  his  factory.  

Subsequently,  they  went  to  the  correct  factory  and  opened  the  

same.  They took the tempo which had the goods inside the factory  

and unloaded the same. It contained 80 packets in gunny bags each  

packet weighed about 30/35 Kg. Tiger Memon paid him Rs.600/-  

out  of  which he had paid Rs.200/-  to Nisar.  Then the appellant  

washed the jeep alongwith Nisar and Suleman and left for Bombay.  

On the way, Suleman told him that the goods which were kept in  

the factory were explosives.   

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In the beginning of March 1993,  Tiger Memon came and  

took 6 packets in his car and 6 more packets were later taken by the  

appellant from the factory and delivered to him.  They had put the  

material in a car and left it in the parking of Rahat Manzil. On the  

next morning, when he reached  there, he could not find the car at  

that place. Two-three days before 17.2.1993 Tiger Memon (AA)  

and his companions transferred the remaining explosives from the  

factory  to  some other  place.  He  came to  know that  in  fact  the  

explosives had been shifted from his godown prior to 12.3.1993.

In  this  case,  his  brother  Iliyas  was  aware  that  the  goods  

concealed  in  their  godown  were  explosives  and  just  after  the  

Bombay  Blast  on  12.3.1993  Iliyas  had  driven  Yakoob  Khan  to  

airport on 17.3.1993.  

354. Retraction:  

He  (A-85)  retracted  his  confession  after  moving  an  

application on 8.12.1993 stating that he came to know only after  

the charge sheet had been filed on 30.11.1993 that he had made a  

confession and in fact no confession had ever been made by him.  

He was forced to sign a readymade prepared statement which was  

never even read over to him and he signed the same because he  

had been in illegal custody of the police since 20.3.1993.

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355. Confessional statement of Murad Ibrahim Khan (A-130):

He made the confessional statement on 3.4.1995 wherein he  

has given the complete depiction of involvement of the appellant.  

He  (A-130)  stated  that  after  returning  from  Dubai,  he  started  

working  with  Majid  Bhai  whose  nephew  Liyakat  (A-85)  

introduced him to Tiger Memon (AA).  Later, he (A-130) found  

out that Tiger Memon was a smuggler.  Liyakat was told to meet  

Tiger  Memon  at  a  petrol  pump  in  Mumbra  where  he  (A-130)  

accompanied him.  When Tiger Memon (AA) reached there, he  

spoke to Liyakat about something and he (A-130) was told to wait  

at the petrol pump for sometime, while Liyakat (A-85) and Tiger  

Memon  (AA)  went  to  the  factory.  They  returned  having  some  

packets which were kept by Liyakat (A-85) in Tiger Memon’s car.  

Tiger Memon left with the items and Liyakat (A-85) again went  

towards the factory asking him (A-130) to wait for Majid Bhai at  

the petrol pump.  Once Liyakat (A-85) returned from the factory,  

he, Majid and Murad (A-130) went to their residence.

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356. Confessional  statement  of  Suleman  Mohd.  Kasam Ghavate (A-18):

 In  the  confessional  statement  of  Suleman,  the  same  has  

deposed that Liyakat A-85 was involved in the case and he went on  

to identify him.  

357. In his statement under Section 313 of the Code of Criminal  

Procedure, 1973 (hereinafter referred to as the Cr.P.C.) in reply to  

Question Nos. 280, 284 and 308, the appellant (A-85) replied that  

he had made a confessional statement; the confessional statement  

did not contain his signature. He was in the lock up of Matunga  

Police Station, and was forced to sign on the said papers because  

he was told by the police that if  he did not comply they would  

harass and torture him. He was frightened, disturbed and therefore,  

succumbed to the said demand. He was not  aware of  what was  

falsely  forwarded  to  C.M.M.  He  was  innocent.  He  had  not  

committed any offence. The police had falsely implicated him in  

the case. The bomb blast was the outcome of the desire of the God.  

358. After  considering  the  evidence  on  record,  the  Designated  

Court  recorded the finding as under:  

(i) That  initially A-85  himself  was  not  aware  regarding the material which was stored in the said  godown.  

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(ii) After being shown the relevant material he had  become aware of the nature of contraband material.  (iii)  Still  he did  not  take any steps regarding the  same i.e. informing to the police, etc.  (iv) His said acts would definitely amount of having  committed  the  offence  under  section  3(3)  TADA  having regard to wide definition of abetment given  under TADA. (v) His confession revealed that the material kept in  his  godown  was  ultimately  taken  away  by  Tiger  Memon  later  on  also  denotes  that  though  the  material  was in the godown of A-85 or  his father  still  all  the  time  possession  of  the  same  had  remained with Tiger Memon. In view of the same  A-85  could  not  be  held  guilty  for  commission  of  offence  under  Section  5   TADA for  which  he  is  charged with.  (vi) The same was the case regarding commission of  offence  under  Section  6   TADA for  which  he  is  charged with.  (vii)  However,  he  himself  still  having  allowed  to  continue  the  said  material  in  his  godown  till  the  same was taken away by Tiger Memon, would make  him liable for commission of offence under Section  5 read with Section 6 of Explosive Substances Act. (viii)  A-85  was  found  guilty  mainly   due  to  few  incidental acts committed by him in connection with  contraband  goods  smuggled  during  Shekhadi  landings.  (ix)  The evidence surfaced and/or reasoning given  thereon  revealed  that  A-85  was  closely  related  to  absconding  accused  Yeda  Yakoob  and  deceased  accused  Majid  Khan  i.e.  nephew of  said  persons.  The  role  played  by  him was  confined  to  himself  having  provided  and  helped  Tiger  Memon  for  storing contraband goods i.e. RDX  material in the  godown of his father at Mumbra.  (x)  He  had  not  committed  any  act  either  with  landing or with any of other operations effected in  pursuance  of  conspiracy.  Needless  to  add  that  evidence having denoted that the material stored at  the  godown  being  later  on  taken  away  by  Tiger  Memon,  A-85  cannot  be  also  said  to  have  in  

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possession of such contraband material. However, to  the  limited  extent  A-85  had  committed  offence  under Section 3(3)   TADA.  

359. Much has been argued  by Shri Mushtaq Ahmad, learned  

counsel  appearing  for  the  appellant  that  whatever  may  be  the  

factual and legal position in the case, the appellant is a mentally  

challenged  person  and  there  is  sufficient  material  on  record  to  

show  the  same.  He  has  been  suffering  from the  delusion  and  

hallucination  and  had  been  treated  in  various  hospitals.  While  

dealing with the remand application vide order dated 8.12.1993,  

the  learned Magistrate  made the  endorsement  to  the  effect  that  

“appellant was suffering from mental illness”. Even the order dated  

19.10.1995 passed by the learned Designated Court takes note of  

his mental illness stating that he was not in good mental condition  

and his health has deteriorated.  

The appeal is accordingly dismissed.  

The appellant has already served 3 years and 4 months.  

However,  we  find  no  cogent  reason  to  interfere  with  the  

conclusion of the Designated Court.   

 Criminal Appeal No. 1029 of 2012

360. The respondent herein stood acquitted of the charge of  

conspiracy. Hence, the State has preferred this appeal.  

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361. Shri  Mukul  Gupta,  learned  senior  counsel  appearing  on  

behalf of the appellant, has submitted that in spite of the fact that  

there  was  clear  cut  evidence  against  the  respondent  of  his  

involvement in the conspiracy, he has wrongly been acquitted by  

the Designated Court. He is a nephew of Yakoob Yeda (AA), who  

had been a close associate of Tiger Memon (AA) and had not only  

permitted  to use his godown for storing the arms, ammunition and  

explosives but had also accompanied them when such goods were  

shifted from there. Thus, the appeal deserves to be allowed.  

362. Per contra, Shri Mushtaq Ahmad, learned counsel appearing  

on  behalf  of  the  respondent,  has  submitted  that  the  respondent  

could not have been convicted under the provisions of TADA at all  

for the reason that the godown where the arms, ammunition and  

explosives had been stored, did not belong to the respondent.  He  

was neither the owner of the godown nor did he have any control  

over it.  It belongs to his father who had never been an accused.  

The respondent  had been harassed  merely  being the  nephew of  

Yakoob Yeda (AA) and he had been convicted for other charges  

and, hence, no interference is called for.   

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363. Heard learned counsel for the parties and perused the record.  

Confessional  statements  of  A-18,  A-85 and A-130 have already  

been referred to and appreciated in the connected appeal.  

364. The Designated Court has dealt  with the issue elaborately  

and recorded the findings as under:  

“Thus, considering material in the confession of A- 85 and aforesaid co-accused the same leads to the   conclusion  of  A-85  though  was  not  involved  in   Shekhadi  landing  operation  he  was  involved  in   allowing  his  place  i.e.  godown  of  his  father  for   storing explosive substances in large quantities.  

However, considering the manner in which A- 85 had figured in commission of the relevant acts it   will  be difficult  to come to the conclusion that he   was involved in the conspiracy for which the charge   at head 1st ly is framed or even otherwise.  Hence,   he will be required to be held not guilty of the said   offence due to not only paucity of evidence for the   same but his involvement being not even spelt  for   the same.”

365. The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

 366. In  view  thereof,  we  do  not  find  any  cogent  reason  to  

interfere with the judgment of the Designated Court.  The appeal is,  

accordingly, dismissed.

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CRIMINAL APPEAL NO. 207  OF 2008

Mujib Sharif Parkar                                          …Appellant

Versus

State of Maharashtra                                     … Respondent                      

AND

CRIMINAL APPEAL NO. 415 OF 2011

State of Maharashtra thr.C.B.I.      …Appellant

Versus

Mujib Sharif Parkar            … Respondent                      

Criminal Appeal No. 207 of 2008

367. This  appeal  has  been  preferred  against  the  impugned  

judgment and order dated 24.5.2007 passed by the Special Judge  

of the Designated Court under the TADA in Bombay Blast Case  

No.  1/1993,  by  which  the  appellant  has  been  convicted  under  

Sections  3(3)  TADA  and  sentenced  to  5  years  rigorous  

imprisonment with a fine of Rs. 25,000/-, and in default to undergo  

further RI for  six months.   

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

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

was charged in connection with the purchase of  gunny bags for  

transportation of contraband landed at Shekhadi, for commission of  

the offence under Section 3(3) TADA during the period between  

December  1992  and  March  1993.  Thereby,  having  abetted  

knowingly and intentionally facilitated the commission of terrorist  

act and preparatory acts thereof.  The facilitation and transportation  

of  the  contraband,  arms  and  ammunition  landed  at  Shekhadi  

between  8th/9th of  February,  1993,  which had been smuggled  to  

India by Tiger Memon (AA) and his associates.

B. The appellant  was  convicted  and sentenced  as  referred  to  

hereinabove.   

Hence, this appeal.   

369. Ms.  Farhana  Shah,  learned  counsel  for  the  appellant  

emphasised the fact that the identity of the appellant could not be  

discerned and this should create doubt in the mind of the court.  

Thus, the appellant was entitled for benefits of doubt.  The appeal  

deserves to be allowed.

370. Shri Mukul Gupta, learned senior counsel for the state has  

submitted that the appellant purchased empty gunny bags which  

were later used to transport the contraband items in the territory of  

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India.  Therefore,  the appellant  was  involved with Tiger  Memon  

(AA). Thus, the appeal is liable to be dismissed.

371. We have heard learned counsel for the parties and perused  

the record.  

372. Evidence against the appellant (A-131):  

(a) Confessional  statement of Sayyad Abdul Rehman Shaikh (A- 28)

(b)Deposition of Usman Jan Khan (PW.2)

(c) Deposition of Dileep Madhavji Katarmal (PW.284)

(d)Deposition of Jalil Sharif Kirkire (PW.285)

(e) Deposition of Ananth Shankar Rane (PW.286)

373.    Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)  

His confessional statement was recorded by Shri Sanjay Pandey,  

Deputy Commissioner of Police, on 23.4.1993.  In his statement,  

he gave full details of smuggling, landing and his participation in  

smuggling activities  even in  February,  1993 with Tiger  Memon  

(AA). He (A-28) revealed that it was 3 a.m., when Mujib (A-131)  

came to Mhasla where the witness was sleeping.  Mujib (A-131)  

said that they have to go to said shop.  On that very same night at  

about 3 O’clock, he (A-28) and the appellant (A-131) left for said  

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shop by Yellow Mitsubishi and reached there at about 6 O’clock  

and from there they bought 1500 sacks from one Gujarati.  From  

there  on  10.3.1993  around 12-12.30  p.m.,  they  went  to  Visawa  

hotel.   After  about  one  and  half  hours,  Tiger  Memon  (AA)  

alongwith Yeda Yakub came there.  Tiger Memon (AA) brought  

the appellant (A-131) with him to a hotel on Mahad Road.  One  

white Mitsubishi was parked there.  Tiger Memon said that many  

people were present there, so goods could not be shifted in another  

vehicle and thus, he asked them to go to Mahsla.  In Mhasla after  

unloading the goods from white Mitsubishi, the rolls of sacks and  

goods were uploaded half-half in both the vehicles.   Mujib (A-

131) got down there itself.   

374. Statement of Usman Jan Khan (PW.2) – Approver – who  

was a co-accused in the instant case.   His confessional statement  

was recorded in which he did not name the appellant (A-131) and  

did not involve the appellant in any overt act.  However, he turned  

as an  approver and he was examined as PW.2 wherein he deposed  

that  he  knew  the  notorious  persons  like  Nasir  Dakhla  (A-64),  

Manoj Kumar @ Munna  Bhavarlal Gupta as Munna (A-24), Riyaz  

Abu Bakar Khatri, Mujib Sharif Parkar as Dadabhai’s son (A-131)  

etc. He identified the appellant (A-131) in the court.  While giving  

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the  details  of  landing  at  Shekhadi,  he  deposed  that  the  witness  

participated in the landing and it took place at about 11 p.m., one  

boat  came  to  the  coast  and  contacted  the  party  waiting  for  

smuggled goods.  Tiger Memon (AA) alongwith witness and 5-6  

persons, namely, Yeda Yakub, Javed, Anwar, Shahid, Munna sat in  

the  boat  and went  towards  high sea  for  half  an hour.  The boat  

reached near the speed boat.  Tiger Memon (AA) went over to the  

speed boat and after  five minutes he passed over seven bags of  

military colour from the speed boat to them and came back to the  

boat.    Then they left  for the coast  with the seven bags and on  

reaching the coast, Tiger Memon (AA) went to a hut on the coast  

with the seven bags.  In the hut, Dadabhai (A-17), Dawood Taklya  

(A-14) and Dadabhai’s  son (A-131) were present. Tiger Memon  

opened the seven bags with the help of these persons.  The bags  

were  containing  AK-56  rifles,  handgranades  and  pistols.    The  

witness  was  given  a  pistol.  Tiger  Memon  (AA)  told  them  that  

within  a  short  time  goods  like  arms  and  Kala  Sabun  would  be  

brought from the sea.  Tiger Memon instructed them to attack any  

person who was an outsider and comes towards them.  The goods  

came in boats.  Villagers  unloaded the goods from the  boat  and  

reloaded in a truck which was standing there.  The villagers were  

persons of  Dawood Taklya (A-14) and Dadabhai Parkar (A-17).  

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After  the  goods  were  unloaded  and  reloaded  in  the  truck,  the  

villagers  left  the  place.   Then  they  proceeded  towards  Wangni  

Tower  and  reached  there  in  about  one  and  half  hours.   It  was  

located in a lonely and deserted place.  Tiger Memon got the goods  

unloaded from the truck and goods were kept in a room in Wangni  

Tower.  On the instruction of Tiger Memon (AA), the packages  

were  opened  and  seen  to  contain  AK-56  rifles,  handgranades,  

pistols,  cartridges,  magazines  of  AK-56  rifles  and  wires.   The  

witness  (PW.2)  enquired  from  Javed  about  the  wires  and  Kala  

Sabun.   Tiger  Memon  (AA)  told  him  that  Kala  Sabun  was  an  

explosive  and  the  wires  were  detonators.   Tiger  then instructed  

them to put the rifles and other items in the cavities of the jeeps  

and in the tempo.  The bags in which these items were brought  

were burnt by Dawood Taklya (A-14),  Dadabhai Parkar (A-17)  

and his son (A-131)  in the backyard on the instructions of Tiger  

Memon (AA).  Tiger Memon (AA) instructed Dawood Taklya (A-

14) to conceal the boxes of Kala Sabun.  

375. Deposition of Dileep Madhavji Katarmal (PW.284) - He  

was serving as a Manager in the firm which was carrying on the  

business of gunny bags etc.  He gave description about two persons  

one  old  and  one  young  who  had  come  to  his  agency/shop  for  

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purchasing the sacks in the first part of February 1993, and they  

purchased the sacks vide bill Nos. 635 and 636 on 4.2.1993 and bill  

Nos. 650 and 651 on 10.2.1993 in the name of Dhanaji Sakharam  

Pawar.   The  witness  produced  the  counterfoil  of  the  said  bills  

which were marked Exhibits 1139 and 1146.  The said bills were in  

his handwriting and contained his signatures.   

376. Deposition of Jalil Sharif Kirkire (PW.285) - He was the  

driver  of  the  vehicle  in  which  the  sacks  had  been  taken.   He  

deposed that he had shifted the gunny bags and was paid a sum of  

Rs.475/- towards the hire charges.  However, he did not identify  

any of the accused.   

377. Deposition of Ananth Shankar Rane (PW.286) -  He was  

an official of CBI and his deposition is only to the extent that he  

searched for Dhanaji Sakharam Pawar in whose name  the bills had  

been issued for purchasing the gunny sacks but in vain.   

378. The learned Special  Judge appreciated the entire evidence  

particularly  that  of  the  confessional  statement  of  Sayyed  Abdul  

Rehman  Kamruddin  Sayed  (A-28),  depositions  of   Dileep  

Madhavji Katarmal (PW-284) and Jalil Sharif Kirkire  (PW-285)  

and other witnesses and reached the conclusion that the respondent  

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(A-131) was involved in landing and was present in arms training  

at  Sandheri  and  was  also  involved  in  purchase  of  gunny  bags.  

However, Sayyed Abdul Rehman Kamruddin Sayed (A-28) did not  

disclose  the  full  name of  accused (A-131),  rather  referred to  as  

Muzib.  

379. From the aforesaid evidence, it is evident that the appellant  

(A-131) was the son of Dadabhai (A-17) who was a close associate  

of Tiger Memon (AA) and indulged in smuggling activities and  

participated  and  facilitated  in  the  landing  and  transportation  of  

contraband.  The appellant (A-131) had participated in purchasing  

the  gunny bags  as  well  as  in  transportation  and had been  fully  

aware of the contents therein as is evident from the deposition of  

Usman (PW.2).  The appellant (A-131) knew that the gunny bags  

contained AK-56 rifles, handgranades, arms etc. The appellant (A-

131) purchased the gunny bags in the fake name of non-existing  

person twice.  If all the evidence against him is read conjontly, the  

inference may be that the gunny bags were used to carry the arms  

which were smuggled to India and transported to Bombay.   

380. In  view  of  the  above,  conviction  of  the  appellant  under  

Section  3(3)  TADA  is  justified.  The  appeal  lacks  merit  and  is  

accordingly dismissed.

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Criminal Appeal NO. 415 of 2011

381. This appeal has been preferred against the same impugned  

judgment and order dated 2.8.2007 passed by the Designated Court  

by which the respondent  has been convicted under Section 3(3)  

TADA and awarded rigorous imprisonment for 5 years with a fine  

of Rs. 25,000/- and in default of payment of fine, to suffer further  

RI for 6 months. However, he has been acquitted of the general  

charge of conspiracy. Hence, this appeal by the State.

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

appellant has submitted that in addition to the general charge of  

conspiracy,  the  respondent  (A-131)  had  been  convicted  for  

assisting the Tiger Memon (AA) and his associates in smuggling of  

arms, ammunition, handgrenades and explosives like RDX in India  

at Shekhadi, Dist. Raigarh and by purchasing empty gunny bags in  

the  name  of  fictitious  firms.  Therefore,  he  has  wrongly  been  

acquitted of the charge of conspiracy.  

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

respondent (A-131) has submitted that the basic evidence against  

the respondent (A-131) was the evidence of Usman (PW.2) who  

had been an accused and turned to be an approver and he did not  

refer to the respondent (A-131) in his confessional statement. More  

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so, his evidence has not been corroborated by any other person. He  

had been involved in the case merely being the son of a landing  

agent  of  Tiger  Memon  (AA).   The  evidentiary  value  of  the  

approver requires corroboration. Therefore, the appeal lacks merit  

and is liable to be dismissed.  

384. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

The entire evidence against the respondent (A-131) has been  

referred to and as appreciated in the connected appeal no.207 of  

2008,  hence, for brevity sake does not require to be referred to  

herein.  

385. So far as the charge of conspiracy is concerned, as accused  

A-131  had  not  transcended  beyond  the  aforesaid  acts  having  

assisted and abetted Shekhadi landing and transportation operation  

and there was no other overt act and it was difficult to hold that he  

was involved in conspiracy.  There was nothing to show that  he  

committed  any  act  furthering  the  object  of  conspiracy,  beyond  

rendering  assistance  to  the  operation  organized  by  his  father  

alongwith other partners. The same made it extremely difficult to  

attribute knowledge of object of conspiracy to A-131. Therefore,  

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he was given the benefit of doubt regarding the said charge and  

was held not guilty of conspiracy.        

386. In view of the above, as the identity of  accused (A-131) had  

not been fully disclosed by some of the accused and witnesses and  

even  Usman  (PW.2)  who  had  involved   respondent  (A-131)  in  

many  activities   did  not  mention  his  name  in  the  confessional  

statement  given  by  him.  He  (PW.2)  further  clarified  in  cross  

examination that he could not give any reason for not mentioning  

the  name of  the  accused  (A-131)  in  his  confessional  statement.  

Therefore, the respondent becomes entitled to the benefit of doubt.  

387. The parameters laid down by this court in entertaining the  

appeal against the order of acquittal have to be applied.  

388. More  so,  the  evidence  of  Usman  (PW.2)  requires  

corroboration in view of the law laid down by this Court in Mrinal  

Das & Ors. v. State of Tripura,  (2011) 9 SCC 479.

In view of the above, we reach the inescapable conclusion  

that the appeal lacks merit.  Thus, it is accordingly dismissed.  

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CRIMINAL APPEAL NO. 2173 of 2010

Mohammed Sultan Sayyed                                  …..Appellant

Versus

State of Maharashtra thr.CBI                                    … Respondent

389. This  appeal  has  been  preferred  against  the  judgment  and  

order  dated  2.8.2007 passed  by the Designated  Court  under  the  

TADA for the Bombay Blast Cases, Greater Bombay, in Bombay  

Blast Case No. 1/1993, by which the appellant has been convicted  

under Section 3(3) TADA.  

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

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

(A-90) was charged for  knowingly facilitating the commission of  

terrorist  acts  i.e.  the bomb blast  on 12.3.1993, and intentionally  

aiding and abetting Dawood Ibrahim Kaskar, Mohmed Dossa and  

Mushtaq  @  Ibrahim  @  Tiger  Abdul  Razak  Memon  and  their  

associates by attending the meeting that was held at Hotel Persian  

Darbar  on  6.1.1993  alongwith  other  co-accused  Ranjit  Kumar  

Singh  (A-102),   Baleshwar  Prasad  and  Customs  Superintendent  

Yashwant Balu Lotle (PW.154), wherein the said Customs agents  

agreed to allow Mohd. Dossa and his associates to carry out their  

smuggling  activities  upon  the  payment  of  a  sum  of  over  

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Rs.7,80,000/- per landing; in furtherance of which, Mohd. Dossa  

and his associates smuggled into Bombay, arms and ammunition  

for  the  commission  of  terrorist  acts  at  Dighi  on  9.1.1993.  The  

appellant  (A-90)  and  the  other  co-accused,  facilitated  the  

smuggling and transportation of arms, ammunition and explosives  

by their non-interference in lieu of the payment of bribe amounts,  

in  spite  of  the  fact  that  they  had  specific  information  and  

knowledge of the fact that arms, ammunition and explosives were  

to be smuggled into India by terrorists, and that as customs officers  

were  legally  bound  to  prevent  the  same.  Charges  were  framed  

under Section 3(3) TADA.   

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

Court found the appellant (A-90), guilty of charge under Section  

3(3)  TADA,  and  imposed  upon  him,  a  punishment  of  7  years  

alongwith a fine of Rs. 1 lakh, and in default of payment of fine, to  

suffer further RI for 3 years.  A cash amount of Rs.1,35,000/-  from  

muddernal  Art.  No.  343  (B),  343(C)  and  343(D)  which  was  

recovered from his house, has also been forfeited.  However, he  

was not found guilty of any other offences.

Hence, this appeal.  

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391. Shri Mushtaq Ahmad, learned counsel appearing on behalf  

of  the  appellant  (A-90),  has  submitted  that  there  is  no  legal  

evidence on the basis of which the conviction of the appellant (A-

90),  can  be  sustained.    It  was  further  submitted  that  his  

confessional  statement has never been recorded, and that he had  

never been presented before the officer who is purported to have  

recorded  his  confessional  statement,  on  the  contrary,  such  

recording was done by resorting to 3rd degree methods, and that he  

was  forced  to  sign  the  papers  upon  which  his  purported  

confessional statement was recorded. All the other evidence is not  

worthy of acceptance, as he had mostly met the other main accused  

only upon the instructions of  R.K. Singh, Assistant  Collector  of  

Customs (A-102).  Thus, the conviction is liable to be set aside,  

and the present appeal deserves to be allowed.   

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

State, has vehemently opposed the appeal and submitted that the  

appellant (A-90) had made an admissible confessional statement,  

and that no 3rd degree methods were used to obtain the same. Thus,  

the appeal deserves to be dismissed.

393. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

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394. Evidence against the appellant (A-90):

(a) Confessional statement of  the appellant (A-90)

(b) Confessional  statement  of  Dawood  @  Dawood  Taklya  Mohammed Phanse @ Phanasmiyan (A-14)

(c) Confessional statement of Uttam Shantaram Potdar (A-30)

(d) Confessional  statement  of  Mohmed  Salim  Mira  Moiddin  Shaikh @ Salim Kutta (A-134)

(e) Confessional  statement  of  Mohmed  Kasam  Lajpuria  @  Mechanic Chacha (A-136)  

(f) Confessional  statement  of  Sharif  Abdul  Gafoor  Parkar  @  Dadabhai (A-17)

(g) Deposition of  Sitaram Maruti Padwal (PW-146)

(h) Deposition of  Madhukar Krishna Dhandure (PW-153)

(i) Deposition of Yashwant Balu Lotale (PW-154)

(j) Deposition of Shivkumar Ramanand Bhardwaj (PW-470)

395.     Confessional Statement of  the appellant (A-90):

His own confessional statement was recorded on 29.4.1993  

(First  Part)  and  30.4.1993  (Second  Part)  by  Shri  C.  Prabhakar,  

Superintendent  of  Police,  Thane  Rural  Camp,  Alibag  (Raigad)  

(PW.186).   In  his  confession,  he  has  stated  that  he  had  been  

working as the Superintendent of Customs at Alibag in January-

February,  1993  and  that  he  had  accompanied  the  accused  R.K.  

Singh,  Assistant  Collector  of  Customs  (A-102)  on  6.1.1993  to  

Hotel  Persian  Darbar,  alongwith  Shri  Lotle  (PW.154),  where  

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negotiations had taken place with the accused Mohd. Dossa and his  

associates, regarding the amounts that were to be paid to various  

officials  for  the  landing  of  smuggled  goods,  and  where  it  was  

finally settled that Mohd. Dossa would pay a sum of Rs.7,80,000/-  

for each landing.  On 8.1.93, the appellant (A-90) had seen Mohd.  

Dossa, whom he had met on 6.1.1993, talking to R.K. Singh (A-

102) in his office.  He was introduced by R.K. Singh (A-102) to  

Uttam Potdar (A-30), a landing agent, in the third week of January.  

R.K.  Singh  (A-102)  had  instructed  the  appellant  (A-90)  to  

approach Uttam Potdar (A-30), who had handed over one plastic  

box to the appellant (A-90), which he had given to R.K. Singh (A-

102).  R.K. Singh (A-102) had given a sum of Rs.1 lakh to the  

appellant (A-90) as part payment for the earlier landing made in the  

first week of December, 1992 and also for the one on 9.1.1993. For  

the  said  landings,  R.K.  Singh (A-102)  had been  paid  a  sum of  

Rs.3.5 lakhs on 19.1.1993.  The appellant  (A-90) had gone to the  

rest house at Shrivardhan, and there he had met R.K. Singh (A-

102).  At the said rest house, Dawood Phanse (A-14) had also met  

R.K. Singh (A-102).  R.K. Singh (A-102) had given instructions to  

the appellant  (A-90)  on 2.2.1993, to reach Hotel Big Splash and  

contact Dadabhai Parkar (A-17), as he had told R.K. Singh (A-102)  

that a landing was likely to take place on 5/6.2.1993  at Bankot  

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Creek.  Subsequently, Dadabhai (A-17) informed him (A-102) that  

the work of the landing had been delayed as a dead body had been  

found at  the  said  place.  The appellant  (A-90)  had  accompanied  

R.K. Singh (A-102) and Inspector Padwal on 12.2.1993, and all of  

them then reached the residence of Dadabhai Parkar (A-17), held a  

meeting  with  him  and  then  returned  to  the  Mhasla  rest  house,  

where Sarfaraz (A-55), son of Dawood Phanse (A-14) met R.K.  

Singh (A-102) and handed over to him a plastic  bag containing  

Rs.3 lakhs.  Uttam Potdar (A-30) had also come to the rest house  

and spoke to R.K. Singh (A-102).   R.K. Singh (A-102) had given a  

sum of Rs. 15,000/- to the appellant (A-90) on 13.2.1993, and had  

told him that the said money was being paid against the landing  

which had taken place on 3.2.1993 at Shekhadi.  He further stated  

that the ill-gotten money amounting to Rs.1,35,000/-  for a total of  

four landings, had been kept with the father-in- law of the appellant  

(A-90), Shamsuddin Rajinsaheb Inamdar.   

396. Confessional  statement  of  Dawood  @  Dawood  Taklya  Mohammed Phanse @ Phanasmiyan (A-14):   

He has revealed that a sum of Rs.3 lakhs was paid to the  

Alibagh Customs Office when the appellant (A-90) had visited his  

house on 14/15.2.1993 alongwith Inspector Padwal.  

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397. Confessional statement of Uttam Shantaram Potdar (A-30) :  

He  has  revealed  that  he  had  been  paying  bribes  to  the  

appellant  (A-90)  and to various custom officers for each landing,  

and that he had also paid the staff of Shrivardhan Customs, a sum  

of Rs.1.5 lakh.  A sum of Rs.3 lakhs had also been given to him by  

Firoz  to  distribute  among  all  the  other  officers.   The  staff  of  

Shrivardhan  Customs  made  a  complaint  stating  that  the  said  

amount was too low, and hence, the accused (A-30) had paid a sum  

of Rs.10,000/- from his own pocket, for all, to Sayyed, Customs  

Superintendent,  the appellant (A-90), Rs.2.5 lakhs to R.K. Singh  

(A-102) and Rs. 1 lakh to the Alibagh staff.  He further revealed  

that the money that he had given to the appellant (A-90), was from  

his own share.  

398. Confessional Statement of Mohmed Salim Mira Moiddin  Shaikh @ Salim Kutta (A-134):   

He has stated that in the first week of January, 1993, three  

custom officers, including R.K. Singh (A-102), Sayyed (A-90) and  

one other officer, had come to Hotel Persian Darbar where the said  

accused (A-134)  was present  with Mohd.  Dossa,  Mohd.  Kaliya,  

Abdul Qayum and Mohd. Mental.  Mohd. Dossa had discussed his  

landing operation  and the  amount  that  was  to  be  paid  for  each  

landing as a bribe to them alongwith the customs officers.  It was  

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finally agreed, that a sum of seven to eight lakh rupees would be  

paid by Mohd. Dossa to the customs officers for each landing.  The  

customs officers had also asked Mohd. Dossa to provide certain  

goods that could be shown as seized.   Immediately thereafter,  a  

landing took place for the purpose of which, the accused (A-134)  

went to the customs office at Alibagh.  The appellant  (A-90)  was  

present at the office, and they informed the appellant  (A-90)  that  

Mohd.  Dossa’s  landing  would  take  place  at  Dighi  Jetty  The  

appellant  (A-90)  went  and  called  R.K.  Singh  (A-102)  from his  

residence,  and  the  accused  (A-134)  then  told  him  about  the  

landing.  Both of them (A-90 and A-102), gave their permission for  

the same. In pursuance thereof, the said landing took place, and  

Uttam Potdar (A-30) made all  the requisite arrangements.   Four  

trucks participated in the landing operation.    

399. Confessional statement of Mohmed Kasam Lajpuria @  Mechanic Chacha (A-136):   

According to him, Mohd Dossa, Salim Kutta (A-134), Firoz  

Qayum Sajli, Arif Lambu  and Mechanic Chacha (A-136) had gone  

from  Panvel  to  Bombay  and  had  attended  a  meeting  at  Hotel  

Persian Darbar.  After sometime, customs officers R.K. Singh (A-

102), the appellant (A-90), and 4-5 other customs officials were  

preparing to leave office in a white Ambassador and a jeep.  After  

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their departure, he came to know from Mohd. Dossa, that in the  

aforementioned   meeting,  an  amount  of  Rs.7-8  lakhs  had  been  

fixed  for  payment  to  customs  officials  as  a  bribe,  for  a  single  

landing. Upon the instructions of Mohd. Dossa, this accused (A-

136)  reached,  alongwith  the  other  accused  from  Bombay  to  

Mhasla,  Alibagh as the said landing was to take place there, on  

9.1.1993.   They  had  already  been  told  to  make  all  requisite  

arrangements  for  the  same,  alongwith  Uttam  Potdar  (A-30),  

Shabbir Qadri after talking to R.K. Singh (A-102), the appellant  

(A-90) and also other customs officials.    

400. Confessional  statement of  Sharif  Abdul Gafoor Parkar  @ Dadabhai (A  -  17):     

He has disclosed facts in relation to the landing at Shekhadi.  

He was informed by Tiger Memon (AA) that a landing would take  

place on 3.2.1993.  Additionally, Tiger Memon had told him to  

contact Assistant Collector R.K. Singh (A-102) over the phone, to  

tell him that he was an informant and that he wanted to provide to  

him certain information, for which he should come to Hotel Big  

Splash. R.K. Singh (A-102) told him that it was not possible for  

him to come there, but he would send his Superintendent and in  

pursuance  thereof,  the  appellant  (A-90)  had  gone  there.   Tiger  

Memon and co-accused (A-17) engaged in certain discussion, and  

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Tiger Memon told him that there was some landing work on the  

said  date.  He further stated that they had received Rs.15 lakhs to  

be distributed among officers, as per the instructions of Dawood  

Takliya (A-14), out of which a sum of Rs. 2 lakhs was paid to R.K.  

Singh (A-102), Inspector Padwal and to the appellant (A-90).   

401. Depositions  of     Sitaram  Maruti  Padwal(PW-146),    Madhukar Krishna Dhandure (PW-153) and Yashwant  Balu Lotale (PW-154) :

They are customs officials and have deposed and approved  

that Assistant Collector R.K. Singh (A-102) and the appellant (A-

90), alongwith other Custom officers of the Alibagh Division went  

to the Persian Darbar hotel.    There was a meeting held at the said  

hotel, and there were talks held with Mohd. Bhai for about half an  

hour.    

402. Deposition of Shivkumar Ramanand Bhardwaj (PW-470):  

He has stated that in January 1993, he had received certain  

information  from the  DRI  Bombay,  to  the  effect  that  some ISI  

syndicates  who  were  located  in  the  Middle  East  and  also  in  

Bombay, may try to smuggle contraband and arms into the districts  

of Bombay, Raigad and Bassin.  After receipt of said information,  

he had sent DO letter (Ext. 1536) to the Assistant Collector R.K.  

Singh (A-102) and others, and had also given instructions over the  

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telephone.  This DO letter was proved by Pradeep Kumar (PW-

471). The said letter was received by R.K. Singh (A-102) and this  

information  was  further  circulated  to  all  the  Superintendents  

working under his jurisdiction.  

403. In  the  statement  made  under  Section  313  of  Code  of  

Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’),  

the appellant  (A-90) has completely denied the recording of  his  

confessional  statement  by  Chaturvedula  Shstri  (PW-186),  while  

answering the questions put to him.  The appellant (A-90) refused  

to acknowledge most of the incriminating material that was pointed  

out  to  him  by  the  Designated  Court.   The  Designated  Court  

considered the same in great detail, appreciating it alongwith the  

cross-examination  of  Chaturvedula  Shstri  (PW-186).   The  

appellant  (A-90) has further stated under Section 313 Cr.P.C. that  

in his confessional statement, his signatures were forcibly obtained  

on 1.5.1993, and subsequently on 3.5.1993 at a few places, when a  

sentence was inserted in the margin of page 3.  The same were  

obtained in the office of SP T.S. Bhal, P.W.191, through force and  

by torturing the appellant (A-90).   

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404. However, after considering everything on record, the learned  

Designated  Court  came  to  the  conclusion  that  there  was  no  

manipulation in his confessional statement, and that the same had  

voluntary been made by appellant  (A-90).   His explanation was  

that,  after  recording  his  confessional  statement,  Chaturvedula  

Shstri (PW-186) had sent it to the CJM, who had not accepted the  

same,  and  had  returned  it.  Therefore,  there  was  manipulation.  

Such an averment was rejected by the Designated Court, pointing  

out  that the same had been sent  directly by Chaturvedula Shstri  

(PW-186)  to the Designated Court,  Pune,  which had received it  

directly.  Therefore, the question of any kind of manipulation did  

not arise.  Thus, the confessional statement cannot be termed as a  

manufactured document, as has been claimed by appellant (A-90).   

405. The  evidence  on  record  leads  to  the  conclusion  that  the  

appellant  (A-90)  had  participated  in  the  meetings  held  at  Hotel  

Persian  Darbar  on  6.1.1993  in  connection  with  landings.  The  

appellant accepted a huge amount of money as his share of illegal  

gratification from co-accused R.K. Singh (A-102) permitting the  

other accused persons for landing on 9.1.1993, and part of the same  

had been recovered from the appellant. The appellant (A-90) also  

participated  in  the  meeting  at  Hotel  Big  Splash,  wherein  Sharif  

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Abdul Gafoor Parkar @ Dadabhai Parkar (A-17) and Tiger Memon  

(AA)  were  present  and  therein  the  negotiations  took  place  for  

Shekhadi landing.  As the said landing took place the involvement  

of the appellant becomes apparent.  

The evidence further disclosed that  the landings contained  

contraband  goods  i.e.  sophisticated  arms,  ammunition  and  

explosives and the same could not be used for any purpose other  

than commission of terrorist acts.  

406.  We find no reason to interfere  with the judgment of  the  

Designated Court. The appeal is dismissed accordingly.

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CRIMINAL APPEAL NO. 1632 of 2007

Ranjit Kumar Singh                                          …..Appellant

Versus

State of Maharashtra thr. CBI                             … Respondent

407. This  appeal  has been preferred against  the judgments and  

orders dated 18.9.2006 and 19.7.2007 passed by Special Judge of  

the Designated Court under the TADA for the Bombay Bomb Blast  

Cases, Greater Bombay, in Bombay Blast Case No. 1/1993. The  

appellant  (A-102)  has been convicted under Section 3(3) TADA  

and   has  been  awarded  the  sentence  to  undergo  rigorous  

imprisonment for 9 years alongwith a fine of Rs. 3,00,000/- and in  

default of payment of fine, to suffer further RI for 4 years.   

408. Fact and circumstances giving rise to this appeal are that :

A. In  addition  to  the  first  charge  of  general  conspiracy,  the  

appellant  (A-102),  who  was  an  Assistant  Customs  Collector  

(Alibagh), the adjoining district  of  Raigad,  where three landings  

took place was charged under Section 3(3) TADA for attending the  

conspiratorial  meeting  at  the  Persian  Darbar  on  6.2.1993,  

alongwith co-accused Mohmed Sultan Sayyed (A-90) and Customs  

Superintendent  Ahmed  Alimed  (PW-317),  in  which  the  wanted  

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accused  Mohd.  Ahmed  Dossa  (AA),  Mohmed  Jaipuria  and  

Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136) were also  

present and had agreed to allow Mohd. Ahmed Dossa (AA) and his  

associates to continue with their smuggling activities within his (A-

102)  jurisdiction  in  return  for  the  payment  of  Rs.7.8  lakhs  per  

landing.  In furtherance of the same, Mohd. Ahmed Dossa (AA)  

and his  associates  smuggled ammunition  for  the  commission of  

terrorist acts.   

B. Furthermore,  he has  also been charged for  facilitating the  

smuggling and transportation of arms, ammunition and explosives  

by Tiger Memon (AA) and his associates on 3rd February and 7th  

February, 1993 at Shekhadi owing to which, arms, ammunition and  

explosives were brought into the country for  the commission of  

terrorist  acts.   He  had  received  specific  information  and  

knowledge,  that  arms,  ammunition  and  explosives  were  being  

smuggled into the country.    Hence,  he has been charged under  

Section  3(3)  TADA,  and  was  found  guilty  vide  judgments  and  

orders dated 18.9.2006 and 19.7.2007.  

Hence, this appeal.  

409. Mr. Sushil Kumar, learned senior counsel appearing for the  

appellant  (A-102),  has  submitted  that  the  appellant  (A-102)  has  

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been  acquitted  of  the  first  charge  of  general  conspiracy,  and  a  

finding of  fact  has been recorded by the Designated Court,  that  

there was no evidence on record to show that  the appellant had  

accepted  any  bribe  from any  of  the  smugglers  or  their  landing  

agents etc.  The confessional statement of the appellant has been  

rejected by the Designated Court on the ground that it was recorded  

by the Inspector of Police, and such person has not been accepted  

as a competent authority under Section 15 TADA, to record such  

statement.  Therefore,  such  a  confession  cannot  be  taken  into  

consideration.   Eight co-accused in their confessional statements  

have  named the  appellant  stating  that  the  landing agents  of  the  

smugglers had been in  contact with him and that they had been  

paying to him, amounts as were fixed per landing.  However, the  

statements of  three co-accused i.e.  Uttam Shantaram Potdar (A-

30),  Mohmed Salim Mira Moiddin Shaikh @ Salim Kutta (A-134)  

and Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136)  were  

recorded subsequent  to  the date  of  amendment  dated 22.5.1993.  

Therefore,  the  confessional  statements  of  five  other  co-accused,  

which  were  recorded  prior  to  the  date  of  the  said  amendment,  

cannot be relied upon.  The contents of the confessional statements  

of the aforementioned three co-accused do not inspire confidence  

and cannot be relied upon. The appellant (A-102) has wrongly been  

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convicted under Section 3(3)  TADA and awarded a sentence of 9  

years alongwith a fine of Rs.3 lakhs.  The appellant has already  

served about 7 years of imprisonment, and has also deposited the  

fine.  Moreover,  other  officers  of  the  Customs  Department  were  

also convicted in this case, particularly, Jaywant Keshav Gurav (A-

82), Mohmed Sultan Sayyed (A-90), Somnath Kakaram Thapa (A-

112)  (dead)  and  Sudhanwa  Sadashiv  Talwadekar  (A-113),  and  

among them,  Somnath Kakaram Thapa (A-112) (dead) who was a  

superior  officers  to  the  appellant  (A-102),  and  also  others  who  

were his  subordinates,  have been awarded a lesser  sentence.   A  

sentence of 8 years was awarded to Jaywant Keshav Gurav (A-82)  

and of seven years to Mohmed Sultan Sayyed (A-90). Hence, his  

sentence should be reduced to the period already undergone.     

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

respondent, has vehemently opposed the appeal contending that the  

confessional  statements  of  all  the  co-accused,  though  recorded  

prior to the date of amendment, must be relied upon.  The Collector  

of  Customs  Shiv  Kumar  Bhardwaj  (PW-470)  informed  the  

appellant (A-102) over the telephone on 25.1.1993 that he (PW-

470)  had  received  definite  information through Intelligence  that  

arms  and  ammunition  would  be  smuggled  into  India  alongwith  

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silver  and gold and that  landings of  the same would take place  

within the territorial jurisdiction of the appellant (A-102).  Hence,  

he must take all necessary precautions and seize both, the weapons  

as  well  as  the  contraband  silver  and  gold.   Undoubtedly,  the  

appellant  (A-102)  regularly  informed  the  Collector  about  the  

progress made by him in this regard, but did not take any actual  

effective measures, instead, he spent his time bargaining and taking  

bribes  from  the  smugglers,  to  facilitate  the  landing  and  

transportation of the said goods. Hence, no leniency must be shown  

to him.  The appeal is liable to be dismissed.  

411. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

412. The confessional statement made by the appellant has rightly  

been  rejected  by the  Designated  Court,  and we  do  not  wish  to  

spend further time on this issue.   This,  being the first  appeal,  it  

becomes necessary for us to re-appreciate the evidence on record  

while considering the same.   

413. Evidence against the appellant (A-102) :

(a) Confessional statement of the appellant (A-102)

(b) Confessional Statement of Uttam Shantaram Potdar (A-30)  

(c) Confessional Statement of Jaywant Keshav Gurav (A-82)

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(d) Confessional statement of Mohd. Sultan Sayyed (A-90):

(e) Confessional  Statement  of  Mohd.  Salim  Mira  Moiddin  Shaikh (A-134)

(f) Confessional  Statement  of  Mohmed  Kasam  Lajpuria  (A- 136)  

(g) Confessional  Statement of  Dadabhai  Abdul Gafoor  Parkar  (A-17)  

(h) Deposition of Shivkumar Bhardwaj (PW-470)  

(i) Deposition of Yashwant Balu Lotale (PW-154)  

(j) Deposition of Sitaram Maruti Padwal (PW-146)  

(k)    Deposition of Madhukar Krishna Dhandure (PW-153)

(l) Deposition of Tikaram Shrawan Bhal (PW-191)  

414. Confessional Statement of Uttam Shantaram Potdar (A-30)  :    

 He  has  corroborated  the  statement  of  the  co-accused  in  

respect of the meetings held, and the acceptance of bribe. He has  

stated that on 4.12.1993, a Customs Sepoy had come to him and  

had told him that he had been called to Mhasla.   On reaching there  

at 8.00 p.m., the Assistant Collector R.K. Singh, appellant (A-102),  

called him to his chamber and on enquiry, A-30 disclosed about the  

previous landing dated 3.12.1992. On 5.12.1992, appellant (A-102)  

was paid Rs.2.5 lacs for landing. In January 1993, Superintendent  

Sayyed was given Rs.2.5 lacs to give the same to appellant (A-

102).  

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415. Confessional  Statement  of  Jaywant  Keshav  Gurav  (A- 82):  

The  accused  (A-82)  was  working  with  the  Customs  

Department, and his job was to prevent smuggling along the sea-

coast,  to  nab smugglers  by collecting secret  information against  

them and to file cases against them as well.  Shri R.K. Singh (A-

102)  had been the Assistant  Collector  of  the Marine Preventive  

since September 1992.   In December, 1992, a letter was received  

by customs officials  stating that  it  was  likely that  smuggling of  

weapons would take place along the Western coast. The accused  

(A-82) knew Dawood Phanse (A-14), Uttam Potdar (A-30), Rahim  

Laundriwala, and Shabir Kadri who were all working  as landing  

agents for smuggling activities in the said area.  

On  3.12.1992,  the  accused  (A-102)  came to  Mhasla.  The  

accused (A-82) met the appellant (A-102) and discussed about a  

landing on 2.12.1992. The appellant (A-102) had a talk also with  

Dawood Phanse (A-14) at the Mhasla rest house. The appellant (A-

102) called him (A-82) and told him to go to Bombay the next day,  

to collect money from Uttam Potdar (A-30).   

After  2-3 days  Uttam Potdar  (A-30)  came to his  room at  

night at Shrivardhan, and gave him Rs.4,00,000/-  and a direction  

to  pay  out  of  the  said  amount,  a  sum of  Rs.2,50,000/-   to  the  

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appellant (A-102) and Rs.1,50,000/- to the Superintendent.  He (A-

82) handed over the money to the appellant (A-102) in a building  

near the post office and thereafter, returned to Shrivardhan.   On  

9.1.1993, he (A-82) met the appellant (A-102) and the appellant  

(A-102) told him that Mohd. Dossa’s landing was going to take  

place and directed him (A-82) to help him.    

        416. Confessional statement of Mohd. Sultan Sayyed (A-90)  :   

      He was the Superintendent Customs Preventive,  Alibagh.  

Some time in the month of November, 1992,  the appellant (A-102)  

had  told   M.S.  Sayeed  (A-90)  that  Rs.1,00,000/-  was  to  be  

recovered from Dawood @ Dawood Taklya Mohammed Phanse @  

Phanasmiyian (A-14) towards penalty.  A-90 then directed Dawood  

Mohammed Phanse (A-14) to pay the said amount, failing which  

his  name  would  be  intimated  to  the  Collector,  Raigad.   In  

December 1992, the appellant (A-102) and one Inspector Padwal  

forced him to accept a sum of Rs.35,000/- towards the smuggling  

of  silver  on 2nd December,  1992 at  Dighi.   When he refused to  

accept  the  same,  the  appellant  (A-102)  threatened  to  spoil  his  

confidential report. As regards the landing on 2nd December, 1992,  

Inspector Gurav (A-82) paid a certain amount to the appellant (A-

102).  

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On  6.1.1993  he  (A-90),  alongwith  the  appellant  (A-102),  

Customs Superintendent  Lotale  (PW-154)  reached Hotel  Persian  

Darbar,  where  three  persons  including  Mohammed  Dossa  (AA)  

were  already  present.   From their  discussion,  he  learnt  that  the  

appellant  (A-102) had demanded a sum of Rs.10 lakhs for each  

landing. In the 3rd week of January, 1993, the appellant (A-102)  

called  (A-90)  into  his  office  and  introduced  him  to  Uttam  

Shantaram Potdar (A-30), and he learnt that A-30 had given the  

appellant a sum of Rs.3,50,000/-.  

On 2.2.1993, the appellant (A-102) told the co-accused (A-

90) to go to  Hotel Big Splash.  There he met Dadabhai (A-17) who  

told him that a landing might take place at Bankot Khadi on 5th/6th  

February, 1993.  On 3rd and 4th February, 1993, Dadabhai told the  

co-accused (A-90) to deliver a personal message to the appellant  

(A-102)  to the effect that as a dead body had been found at his  

work place, the said work had been postponed, and that further, he  

would contact the appellant (A-102) before the job was to be done.  

Dadabhai (A-17) told (A-90) that he was the son-in-law of A.R.  

Antule.  

On  12.2.1993  co-accused  (A-90)  learnt  that  Dawood  

Phanse’s son (A-55) had paid the appellant (A-102), Rs.3.5 lacs.  

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On 13.2.1993, the appellant (A-102) had paid a sum of Rs.50,000/-  

to (A-90) for the landing at Shekhadi on 3.2.1993.  

417. Confessional Statement of Mohd. Salim Mira Moiuddin  Shaikh (A-134):        

In his confessional statement, he (A-134) has stated that he  

had gone to Hotel Persian Darbar alongwith Mohd. Dossa, Mohd.  

Kaliya, Abdul Qayum and Mohd. Mental,  and had met Customs  

Officers including the appellant (A-102).   At the said meeting, it  

was decided that Rs.7-8 lakhs would be paid for each landing to the  

said Customs Officers by Mohd. Dossa. A few days later, Mohd.  

Dossa told the Customs Officers that a large quantity of arms and  

ammunition would be brought at Mhasla, for which arrangements  

were to be made.  He (A-134) and Feroz informed the appellant  

(A-102) of  the said landing on the instructions of Mohd. Dossa.     

418. Confessional Statement of Mohmed Kasam Lajpuria (A- 136):  

   He  (A-136)  stated  that  the  appellant  (A-102)  had  been  

present at the meeting held at Hotel Persian Darbar on 6.1.1993,  

where  it  was  decided  that  Rs.9-10  lakhs  would  be  paid  to  the  

Customs staff for one landing.  Mohd. Dossa instructed Salim and  

Feroz  to  make  arrangements  for  Dighi  landing  after  talking  to  

appellant (A-102).  

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419. Confessional  statement  of  Sudhanwa  Sadashiv  Talwadekar (A-113):

He  (A-113)  did  not  name  the  appellant  (A-102),  but  

corroborated that the landing took place on 9.1.1993.  

420. Confessional  Statement of  Dadabhai Abdul Gafoor (A- 17):  

     In his confession, A-17 disclosed that he used to facilitate the  

landings of smuggled goods, and that he had been working with  

Tiger Memon (AA) and Dawood Taklya  (A-14) for the past 1-1/2  

years.   The  last  two jobs  involved the  landing of  weapons  and  

explosives.  On 3rd February, 1993, he (A-17) contacted appellant  

(A-102) on telephone on the instructions of Tiger Memon (AA)  

and asked him to meet Tiger Memon at Hotel Big Splash.  The  

appellant  (A-102)  sent  Superintendent  Sayyed  (A-90)  who  

negotiated with Tiger (AA), and Tiger told him that he had some  

work that day.  

421. D  eposition of     Shivkumar Bhardwaj (PW-470):    

In  his  statement,  he  has  revealed  that  he  had  received  

information from the  Directorate  of  Revenue  Intelligence  (DRI)  

that a big quantity of automatic weapons would be smuggled into  

India by the ISI alongwith contraband, gold and silver within 15-30  

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days at Vasai,  Dadar Pen around Bombay, Shrivardhan, Bankot,  

Ratanagiri and along the southern beaches of Goa.  In view thereof,  

he had sent letter dated 25.1.1993 (Ext. 1536) to the appellant (A-

102), and had also spoken to him over the telephone on the very  

same day, and had cautioned him to keep a close watch and remain  

highly  alert  regarding  the  possibility  of  the  landing  of  arms  

alongwith the other contraband. He (PW-470) had  further advised  

A-102  to  pay  close  attention  to  the  situation,  and  to  make  an  

attempt to seize the weapons as well as the contraband. In the event  

of seizure of such goods, the officer (A-102) would be rewarded,  

and  a  lucrative  reward  would  also  be  given  to  the  person  who  

furnished  any  requisite  information,  and  that  it  was  for  this  

purpose, that the officers of the customs department were mixing  

closely with the smugglers so as to win their confidence and dupe  

them  into  giving  them  such  information.   The  witness  further  

revealed that the appellant (A-102) and Sh. S.N. Thapa (dead), had  

kept him informed about the steps taken in this regard.   

422. D  eposition of Yashwant Balu Lotale (PW-154):    

In his statement he has revealed that he and the appellant (A-

102), were working as Assistant Collectors of Customs and he has  

deposed  that  he  had  gone  alongwith  the  appellant  (A-102)  and  

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M.S. Sayyed (A-90) on 6.1.1993 after leaving the Alibagh office  

and that they had carried out the work of collecting intelligence by  

patrolling areas until 1.00 a.m. on 7.1.1993.  Thus, he has deposed  

in favour of the appellant (A-102).  

423. Deposition of Sitaram Maruti Padwal (PW-146):  

He was inspector of Customs and was called by the appellant  

(A-102)  to  his  cabin  in  September  1992,  and  he  (A-102)  had  

enquired  as  to  whether  the  penalty  of  Rs.1  lac  imposed  upon  

Dawood  Phanse  (A-14)  had  been  recovered.  The  witness,  after  

checking  the  record,  informed  the  appellant  (A-102)  that  the  

penalty had not been recovered. On 11.2.1993, three parties were  

formed for patrolling and in one such party, he (PW-146) was also  

included.    The appellant (A-102), Sayyed (A-90) and the witness  

(PW-146) had gone to the residence of Dadabhai (A-17).  On being  

informed, Dadabhai Parkar (A-17) came and met the appellant (A-

102)  who remained seated  in  the  car.  A discussion  had  ensued  

between Dadabhai (A-17) and the appellant (A-102).  From there  

they came to the Rest House, where A-102 met a person sent by  

Dawood Phanse (A-14).  

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424.    Deposition of Madhukar Krishna Dhandure (PW-153):

In the year 1993, appellant (A-102), was the main officer at  

the customs office in Alibagh. On 6.1.1993, at about 5.00 p.m. he  

went for patrolling alongwith A-102.  

425. From the evidence referred to hereinabove, the prosecution  

has established the case against the appellant (A-102) as:

- The  appellant  knew  Mohd.  Dossa,  Tiger  Memon  and  

their landing agents and had been allowing the accused persons  

to  smuggle  contraband  goods  into  India,  for  which  he  was  

getting hefty bribes.  

- There  had  been  a  meeting  on  6.1.1993  which  was  

attended by the appellant  (A-102),  alongwith Sayyed, Mohd.  

Dossa and other persons. It was decided in the meeting that 7-8  

lacs would be paid to the Custom Officers for each landing.  

- Landing took place on 9.1.1993, for which the appellant  

had been informed by Mohd. Dossa through Salim and Feroz  

that the landing would take place on that date.

- Arms and ammunition sent by Mustafa Majnu landed at  

Dighi Jetty on 9.1.1993.

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-  Appellant (A-102) received illegal gratification from the  

accused persons for this landing and had received the bribe for  

the landing done on 2.12.1993 by Mohd. Dossa.

- Appellant  (A-102)  knew about  the landing which took  

place on 3.2.1993 and 7.2.1993 at Shekhadi.

- Appellant  had  received  the  information  from  Sh.  

Bhardwaj,  Collector  of  Custom  on  25.1.1993  that  I.S.I.  

Syndicate  located  in  Middle  East  and  Bombay  may  try  to  

smuggle  contraband  and  arms  in  the  Districts  of  Bombay,  

Raigad and Thane. Despite this specific information he allowed  

Tiger  Memon  (AA)  and  his  persons  to  smuggle  arms,  

explosives etc. in India.  

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

Special Judge came to the conclusion as under:

“265)  Without  making  any  unnecessary  dilation   about  the  self-eloquent  evidence  about  which  the   relevant excerpts are cited earlier it can be safely   said that considering the act committed by these 4   accused as reflected from same i.e. participation of   A-102  &  90  in  Persian  Darbar  meeting  and   negotiating with smugglers about the bribe amount   to be paid and granting them a charter to smuggle   the contraband articles or in fact any thing, the act   of  A-82  inspite  of  being  present  on  the  spot  of   interception of  goods by police,  instead of  seizing   the  same  allowing  the  same  to  be  transported   further and in most clandestine manner piloting the   convoy carrying the contraband goods on its way to   

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destination  uptil  a  particular  spot,  advising  the   policemen in clandestine manner etc., and of A-II3   though  not  being  directly  connected  with  said   landing readily & willingly accepting his share of   booty from the bribe amount received for the said   landing  and  thereby  denoting  his  implied   connivance for the said operation seized earlier; not   revealed  otherwise  in  view  of  himself  being  not   directly  involvement  in  commission  of  act  and   considering the further acts committed byA-90, 82   and 113 regarding Shekadi landing and so also to   some  extent  by--A-l02  clearly  reveals  themselves   having committed the offence u/s. 3(3) of TADA for   which each of them has been charged with at this   trial.  266)  However,  the  careful  consideration  of  said   evidence  and even  after  taking  into  consideration   the  fact  that  A-l02 and  A-90  had  participated  in   Persian Darbar meeting; still  the evidence having   fall  short  of  themselves  having  connived  with  the   conspirators in this case for commission of said act   for the purposes of conspiracy, it will be difficult to   hold  them  or  an  of  them  liable  for  offence  of   conspiracy for which each of them has been charged   with  on  the  basis  of  evidence  surfaced  regarding   Dighi  landing episode  and so  also  about  Shekadi   landing episode about which the discussion is made   later on.  267)  Truly  speaking  receipt  of  bribe  amount  for   allowing the said operation considered from proper   angle also connotes that the act committed by the A- 102,  90,  113 & 82 being primarily  for  receipt  of   bribe  amount  by  misusing/abusing  their  official   position  would  definitely  fallout  of  sphere  of  the   conspiracy  for  which  the  relevant  operation  was   organized  and effected  by other  co-accused.   The   same  is  obvious  as  conspirators  always  join  the   conspiracy or become members of conspiracy due to   being  interested  in  either  furthering  the  object  of   conspiracy or achieving the object of conspiracy.   The  payment  of  the  money for  commission  of  act   which may have a semblance of furthering object of   conspiracy will still not make the concerned liable   

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for offence of conspiracy. The same is apparent as   the  act  committed  by  them  would  be  for  the   purposes  of  receiving  the  said  payment  and  not   mainly for furthering the object of conspiracy. It is   true  that  their  such  acts  as  ruled  earlier  would   amount to commission of offence of an abetment or   assistance et for commission of terrorist act by other   conspirators and they could be held liable for the   same but still they cannot be said to be involved in   the conspiracy. In view of the aforesaid, none of the   A-102, 90, 113 & 82 can be said to be guilty for   commission of offences of conspiracy for which the   charge at head 1st ly is framed against them or even   otherwise for any smaller conspiracy. However, by   way  of  abundant  caution  it  will  be  necessary  to   record  that  aforesaid  observations  is  limited  to   above stated 4 accused from Customs dept., and the   same is not in relation to A-102 i.e. Addl. Collector   of  Customs  whose  case  clearly  appears  to  be   different i.e. his connection with Tiger Memon being   spelt  from  evidence  revealed  during  Shekadi   landing, there being hardly any evidence of himself   having received….”

427. There is enough evidence on record to show the involvement  

of  the  appellant  (A-102)  in  facilitating  the  smuggling  of  arms,  

ammunition  and  explosives  within  his  jurisdiction  in  lieu  of  

payment of illegal gratification. We find no reason to interfere with  

the conclusion of the learned Special Judge. The appeal lacks merit  

and  is accordingly dismissed.

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CRIMINAL APPEAL NO. 271  OF 2008

Sudhanwa Sadashiv Talavdekar …Appellant   

Versus

State of Maharashtra                 … Respondent                      

428. This  appeal  has been preferred against  the judgments and  

orders dated  2.11.2006 and 29.5.2007 passed by the Special Judge  

of the Designated Court under the TADA for the Bombay Blast,  

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

appellant  (A-113)  has been found guilty and has been convicted  

under Section 3(3) TADA and has been sentenced to undergo RI  

for  8  years  alongwith  a  fine  of  Rs.2,00,000/-  and in  default  of  

payment of fine, to suffer further RI for 3 years.  

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

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

been charged under Section 3(3) TADA for aiding, abetting, and  

knowingly  facilitating  the  smuggling  of  arms,  ammunition  and  

explosives, which were smuggled into India while he was posted  

as  the  Superintendent  of  Customs,  Shriwardhan  Circle  of  the  

Alibagh Division, Raigad Dist. Maharashtra.  

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B.  Upon the conclusion of the trial, the appellant  (A-113) was  

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

and  sentenced  as  mentioned  hereinabove.  He  (A-113)  was  

however, acquitted of  the general charge of conspiracy.

Hence, this appeal.  

430.  The  appellant  appeared  in  person  and  argued  that  his  

confession was obtained by coercion and was retracted within 20  

days. There are contradictions in the statements made by both the  

witnesses,  Dawood  Taklya Mohammed Phanse @ Phanasmiyan  

(A-14)  and  Sharif  Abdul  Gafoor  Parkar  @  Dadabhai  (A-17).  

Therefore, their confessions cannot be relied upon. He had falsely  

been enroped in the case. Thus, the appeal should be allowed.

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

State has vehemently opposed this appeal, and has submitted that  

the  appellant  had  been  named  specifically  in  the  confessional  

statements by the co-accused. He was taking illegal gratification in  

lieu of not seizing contraband goods that were being smuggled into  

the country, which was within his power and also his duty. Thus,  

the appeal should be dismissed.  

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432. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

433.Evidence against the appellant     (A-113):   

(a) Confessional statement of the appellant  

(b) Confessional statement of Jaywant Keshav Gurav (A-82)

(c) Confessional  statement  of  Dawood  Taklya  Mohammed  Phanse @ Phanasmiyan (A-14)

(d) Confessional  statement  of  Sharif  Abdul  Gafoor  Parkar  @  Dadabhai (A-17)

(e) Confessional statement of Mohmed Sultan Sayyed (A-90)

(f) Confessional statement of Uttam Shantaram Potdar (A-30)

(g) Confessional statement of Nasir Abdul Kader Kewal @Nasir  Dakhla (A-64)

(h) Deposition of Yashwant Balu Lotale (PW-154)

(i) Deposition of Usman (PW-2)

(j) Deposition of Bharat Hiramal Jain (PW-165)

(k) Deposition of Dipak Balkrishna Rauth (PW-149)

(l) Deposition of Chandrashekhar (PW-591)

(m) Deposition of Shivkumar Bhardwaj (PW-470)

434. Confessional Statement of S.S. Talwadekar   (A-113):   

The  evidence  against  the  appellant  (A-113) is  his  own  

confession  made  on  2nd/4th May,  1993  which  was  recorded  by  

Tikaram S. Bhal (PW.191). In his confessional statement, he has  

admitted that  he had gone several  times to  the house of  Rahim  

Laundriwala alongwith Jaywant Keshav Gurav (A-82) and that he  

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was  closely  associated  with  Dawood  @  Dawood  Taklya  

Mohammed Phanse @ Phanasmiyan (A-14) and Bashir Mandlekar,  

who  were  landing  agents.  He  (A-113)  would seek  information  

about  smuggling  and  also  about  the  collecting  of  money  for  

facilitating the landing and transportation of smuggled contraband  

silver  and  gold.  He  (A-113)  had  gone  to  the  house  of  Rahim  

Laundriwala  alongwith  Jaywant  Keshav  Gurav (A-82),  Customs  

Inspector  and  had  taken  an  amount  of  Rs.1,60,000/-  from  him  

which he (A-113) had distributed to others, and had kept a sum of  

Rs.72,000/- for himself. For each landing, he (A-113) was paid an  

amount  of  Rs.1,60,000,  which  he  would  distribute  among  the  

others, while keeping a substantial share for himself. However, for  

the landing on 3.12.1992 he had received only Rs.1,50,000/- from  

Uttam Shantaram Potdar (A-30), and after distribution of amounts  

to other officers, his own share became limited to only Rs.45,000/-.  

After the riots between December, 1992 and January, 1993  

in  Bombay,  Rahim Laundriwala  had  told  him  (A-113) that  the  

situation was very tense,  however,  despite  this,  the said landing  

would take place. The appellant (A-113) proceeded on leave from  

9.1.1993 to 23.1.1993, and learnt only subsequently, that a landing  

had taken place on 9.1.1993.  Despite the fact that he had been on  

leave  on  the  said  date,  he  (A-113)  had  received  a  sum  of  

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Rs.40,000/- from Uttam Shantaram Potdar (A-30). The appellant  

(A-113) had also received a message from Rahim Laundriwala that  

another  landing  of  silver  would  take  place  on  29.1.1993  at  

Shekhadi, but subsequently, he was informed that the said landing  

could not take place.   

Regarding  the  incident  of  the  landing  on  2.2.1993,  the  

appellant (A-113) has stated that he had gone alongwith   Jaywant  

Keshav Gurav (A-82), Customs Inspector, to Shekhadi.  In fact, in  

light of the fact that he had received directions from his superior  

officers, to be on guard, as it was likely that arms and ammunition  

would  be  smuggled  alongwith  silver  and  gold,  he  had  gone  to  

Shekhadi. It was dark at about 10.30 - 11.00 p.m., and when the  

appellant  (A-113)  reached  the  said  place,  with  Jaywant  Keshav  

Gurav  (A-82),  Customs  Inspector.  Here,  he  found  Rahim  

Laundriwala  and  Dawood  Taklya  Mohammed  Phanse  @  

Phanasmiyan (A-14),  who introduced him to Tiger Memon (AA).  

Tiger  Memon  asked  the  appellant  (A-113)  whether  he  was  the  

Superintendent  Inspector,  and  when  the  appellant  (A-113)  

answered in the affirmative,  Tiger Memon told him (A-113)  that  

he had been trying to contact the appellant for 2-3 days, however  

he had failed in his attempts to do so. The appellant  (A-113) also  

asked Tiger Memon whether he was smuggling weapons etc. To  

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the said question, Tiger Memon (AA) replied that he would never  

indulge  in  such  activities.   The  appellant  (A-113)  has  further  

confessed that even for the said landing, Jaywant Keshav Gurav  

(A-82), Customs Inspector, had received a sum of Rs.1,60,000/-,  

which had been distributed, and the appellant in turn, had received  

a sum of Rs.54,000/- as his share.  He has further stated that he had  

spent all the money that he had received from the smugglers from  

time to time.   He has  provided details  of  the passbook account  

numbers  of  his son,  which were recovered by the CBI.

435. According to the confessional statement of the appellant (A-

113), he had been associated with the smugglers and had also met  

Tiger Memon (AA). He had been receiving money, distributing the  

same  amongst  other  officers,  and  had  also  been  spending  it  

himself. However, his case is that he was on leave from 9.1.1993 to  

23.1.1993. Subsequently, he had met Tiger Memon (AA). He (A-

113) had been receiving money regularly and had even been paid  

his share for landings that had taken place while he was on leave.  

He retracted his statement on 24.5.1993 (after 20 days, in writing,  

which was  prepared by his advocate Hegde), stating that he had  

been  asked to  simply  sign  papers,  and  that  he  had not  actually  

made any confessional statement.    

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436. Confessional statement of Jaywant Keshav Gurav (A-82):  

In his confessional statement recorded by Tikaram S. Bhal  

(PW.191),  he  has  deposed  that  he  had  been  working  with  the  

appellant  (A-113) who was the Superintendent (Customs) and has  

corroborated the confessional statement of the appellant  (A-113),  

regarding visiting Rahim Laundriwala and collecting money from  

him. He has made a statement that once he, alongwith the appellant  

(A-113), had gone to the house of Rahim Laundriwala  and that the  

latter had paid an amount of Rs.1,60,000/- to the appellant (A-113),  

and that the said amount was distributed amongst employees and  

Inspectors  at  the  Custom  Office,  including  to  Jaywant  Keshav  

Gurav (A-82).  He (A-82) has further narrated similar incidents of  

visiting the house of Rahim Laundriwala, the collection of money  

by the appellant and the distribution of the same to other officers  

on 17.9.1992, and in the month of September 1992, the first week  

of October 1992, and in the first week of November 1992.  

437. Confessional statement of Dawood  Taklya Mohammed  Phanse @ Phanasmiyan (A-14):   

         Dawood  Taklya Mohammed Phanse @ Phanasmiyan (A-

14)  has  implicated  the  appellant  (A-113) in  his  confessional  

statement Exts. 855 and 855A which has been duly accepted by the  

Designated  Court.   Here,  he  has  made statements  regarding the  

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payment of money, and the full  co-operation of the appellant in  

activities connected to smuggling, landing and transportation.  

438. Confessional  statement of  Sharif  Abdul Gafoor Parkar  @ Dadabhai (A-17):

He is also a landing agent. Similarly, Sharif Abdul Gafoor  

Parkar  @  Dadabhai  (A-17)  has  made  disclosure  statements  

regarding the acceptance of money by the appellant  (A-113),  and  

the distribution of the same amongst officers before him. He has  

deposed that a sum of Rs.2.20 lakhs had been given collectively to  

the appellant and to Jaywant Keshav Gurav (A-82).  

439. Confessional statement of Mohmed Sultan Sayyed (A-90):  

He has supported the case of the prosecution to the extent  

that he had also gone alongwith the appellant  (A-113) to Jaywant  

Keshav  Gurav  (A-82),  Customs  Inspector,  where  they  had  met  

Dawood  Taklya Mohammed Phanse @ Phanasmiyan (A-14)  and  

R.K. Singh, Assistant Collector of Customs (A-102).  

440. Confessional statement of Uttam Shantaram Potdar (A-30):  

He has supported the case of the prosecution to the extent of  

the  landing  at  Shrivardhan,  and  the   payment  of  money  to  

Mohmed Sultan Sayyed (A-90).  

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441. Deposition of Yeshwant Balu Lotale (PW-154):  

He is the Customs Department official who was examined to  

verify the version of events narrated by the appellant (A-113), and  

after examining the office record, he has deposed that the appellant  

(A-113)  was  on  leave  only  on  9.1.1993.  He  did  not  therefore,  

support the case of the appellant stating  that he had been on leave  

from 9.1.1993 to 23.1.1993.  

442.    Nasir Abdul Kader Kewal @ Nasir Dakhkla (A-64) has also  

supported the case of the prosecution against the appellant.  

443. Deposition of Usman (PW-2) :

He has deposed that it was on 2.12.1992 when the landing  

had taken place, that two persons from the Customs Department  

had come at the time of the said landing. Though he did not name  

the  appellant  (A-113),  he  has  corroborated  the  confessional  

statements of the appellant (A-113), and of Jaywant Keshav Gurav  

(A-82), Customs Inspector.  

444. Deposition of     Bharat Hiramal  Jain (PW-165):    

It has been proved that he had received a sum of Rs. 2.25  

lakhs by way of seven cheques between December 1992 and April  

1993 from the appellant for booking a flat.  

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445. The depositions of Deepak Balkrishna Rauth (PW.149)  and  

Chandrashekhar  (PW.591) have proved  the  aforementioned  

amounts of cash, through pass book entries.

446. Deposition of   Shivkumar Bhardwaj (PW-470)  :   

He  has  stated  that  in  January  1993,  he  had  received  

information  from the  DRI  Bombay to  the  extent  that  some ISI  

syndicates located in the Middle East and in Bombay, would try to  

smuggle contraband and arms into the districts of Bombay, Raigad  

and Bassin.  After receipt of the said information, he had sent DO  

letter (Ext.  1536) to the Assistant  Collector  R.K. Singh (A-102)  

and  others,  and  had  also  issued  instructions  to  them  over  the  

telephone.  This DO letter was proved by Pradeep Kumar (PW-

471). The said letter was received by R.K. Singh (A-102), and the  

same information was further passed on to all the Superintendents  

working under his jurisdiction.

447.  The  learned  Special  Judge  after  appreciating  the  entire  

evidence on record came to the conclusion that:

“Thus considering material in the confession of A- 113 and aforesaid co-accused the same leads to   the conclusion of  A -113 also  being involved in   Shekadi  landing  operation  as  denoted  by  said   material  and  as  such  having  committed  offence   u/s. 3(3) of TADA for which he is charged at head   2nd ly clause 'b'. Since case of A-113 is more so   

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over  akin  regarding  his  liability  to  Shekhadi   landing with that of A-82 as both of them were at   Shekhadi  coast  instead  of  again  repeating  said   discussion  it  can  be  safely  said  that  for  same   reason of  which A-82 has been found guilty  for   commission of offence under Section 3(3) of TADA   Act  A-113  will  be  required  to  be  held  guilty.   Needless to add that for same reason as stated in   said discussion evidence pertaining to receipt  of   bribe  amount  and/or  recovery  of  same  during   course of investigation and as tabulated about is   not  threadbare  discussed.  Thus  on  basis  of  all   material surfaced at trial A-Il3 will be required to   be held guilty for commission of offence u/s.3(3) of   TADA Act. Needless to add that similarly as that   of A-82 or even A-102 he can not be held guilty for   offence  of  conspiracy  for  which  he  is  charged   with.”  

(Emphasis added)

448. The evidence on record clearly shows the involvement of the  

appellant in landing. His role is the same as that of Jaywant Keshav  

Gurav  (A-82)  as  he  was  responsible  to  prevent  any  smuggling,  

rather he had indulged in that and accepted the bribe permitting the  

smugglers  to  bring  not  only  gold  and  silver  but  also  arms,  

ammunition  and  explosives.   The  fact  of  investment  of  money  

taken by him as illegal gratification stood proved by the evidence  

of  Bharat  Hiramal Jain (PW-165) and Deepak Balkrishna Rauth  

(PW-149) and he could not furnish any satisfactory explanation for  

such investment.  

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The  learned  Designated  Court  has  rightly  reached  the  

conclusion  so  far  as  his  involvement  in  the  offence  punishable  

under Section 3(3) TADA is concerned.  

 In view of the above, we do not find any force in the appeal.  

The appeal lacks merit and is accordingly dismissed.  

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CRIMINAL APPEAL NO. 598 of 2011

State of Maharashtra through CBI                       …Appellant

Versus

Jayawant Keshav Gaurav & Ors. …Respondents

449. This appeal has been preferred by the State against the final  

judgment and order dated  2.8.2007 passed by Special Judge of the  

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

of 1993, by which the respondents/accused (A-82, A-90, A-102, A-

113) have been convicted for the offences punishable under various  

provisions of TADA and other Acts, but have been acquitted of the  

general charge of conspiracy under TADA.

In  view  of  the  fact  that  each  respondent  being  assigned  

different acts, has been charged differently and has been awarded a  

different  sentence,  it  is  desirable  to  deal  with  the  case  of  each  

respondent separately to certain extent.  

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

State, has submitted that all the four respondents, were officials of  

the Customs Department.  They had been warned by their superior  

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officers that arms and ammunition were going to be smuggled into  

the country through the sea; and they were therefore, required to  

take  all  possible  preventive  measures  and  to  remain  constantly  

alert. Despite the said warnings, the respondents demanded higher  

bribes   from the  smugglers  for  the  purpose  of  permitting  their  

landings and transportation, and therefore, they ought to have been  

convicted for the first charge of conspiracy as well.   

451. Per contra, Ms. Farhana Shah, Shri Mushtaq Ahmad and Ms.  

Afshani  Pracha,  learned  counsel  for  the  respondents,  have  

submitted that the respondents have already been convicted under  

various Acts,  and considering the participation of the individual  

respondents in the said crimes, punishments have been awarded to  

them,  as  deemed  appropriate. Therefore,  no  further  sentence  is  

required.  

452. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.  

I. Jayawant Keshav Gaurav (A-82)      

453. The first  respondent  has  been  charged,  in  addition  to  the  

main  charge  of  conspiracy,  for  facilitating  the  transportation  of  

arms and ammunition by piloting two motor trucks  laden with  

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arms, ammunition and explosives, in order to ensure safe passage  

of  the  same,  in  a  jeep  belonging  to  the  Customs  Department,  

bearing  registration  No.  BLB  4352,  from  Gondghar  Phata  to  

Kanghar, and for permitting the accused Uttam Shantaram Potdar  

(A-30), to drive the aforesaid government jeep for the said purpose  

on the intervening night between 9th/10th January, 1993. The said  

acts amount to the abetment of Mohd. Dossa and his associates for  

smuggling arms, ammunition and explosives, which were brought  

into the country for the commission of terrorist acts, and hence,  

abetment of the said attacks.  Additionally, he has been charged for  

facilitating the smuggling and transportation of arms, ammunition  

and explosives by Tiger Memon (AA), on the 3rd and 7th February,  

1993.   Thus, the charge is one under Section 3(3) TADA.  

He (A-82) has been convicted under Section 3(3) TADA and  

has been awarded RI  of  8 years alongwith a fine of Rs. 1 lakh,  

and in default of payment of fine, to further undergo RI for 3 years.  

He has filed Criminal  Appeal No. 271 of  2008 against  the said  

order of conviction, even though he has served the sentence for a  

period of 8 years, and has paid the fine.  

 454. The learned Designated Court, after appreciating the entire  

evidence on record, came to the conclusion that the confessional  

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statement  of  Jayawant  Keshav  Gaurav  (A-82)  has  revealed  his  

involvement in the Shekhadi landing, and in the transportation of  

the  smuggled  contraband,  alongwith  various  other  co-accused,  

particularly, Dawood Taklya (A-14), Uttam Shantaram Potdar (A-

30),  Ranjit  Kumar Singh Baleshwar Prasad (A-102), Sudhanwa  

Sadashiv Talwadekar (A-113), Vijay Krishnaji Patil (A-116) and  

Tiger Memon (AA) and has held as under:  

“Since all the said material is so self eloquent that   same will need no dilation for coming to conclusion   as stated aforesaid. Amongst other the same reveals   that A-82 being participant in commission of offence   regarding Dighi landing. A-82 being also recipient   of  bribe  amount.  A-  82  alongwith  A-113  being   present at Shekhadi coast when landing was to be   effected  hardly  they  had  taken  any  steps  for   preventing  same  and  on  the  contrary  their   conversation with Tiger Memon clearly reveals that   instead  of  taking  matter  seriously  they  were   interested in making fun of Government missionary   to which they were party and were required to act   diligently  for  protecting  economy  of  Nation.   However  as  observed   earlier  and  taking  into   account act committed by A-82 who was of lower   rank  of  officers  of  Customs  Department  of  which   higher officers were involved in conspiracy he can   not be said to be guilty for offence of conspiracy for   which charge at head 1st Iy is framed against him at   the trial. Needless to add that same is apparent that   there is paucity of evidence regarding knowledge of   A-82 of contraband goods being arms, ammunition   and explosives  and purposes  for  which same was   brought.  So also he can not be said to be guilty for   offence  of  conspiracy  for  serial  blast  as  acts   committed by him was much prior than even fixing   of  targets  for serial  blast by Tiger Memon.  Such   conclusion is further fortified by fact of A-82 having   

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not found to have committed any other act after said   landing and excepting act of nabbing culprits which   would never have been feasible in view of he himself   having abetted acts committed by them.”  

455. The aforesaid findings by the learned Special Judge make it  

crystal clear, that he (A-82) was guilty of facilitating such landings  

and  transportation  as  being  a  Customs  Inspector,  he  was  the  

recipient  of a bribe amount.  He (A-82) had conversations with  

Tiger Memon (AA) and had further allowed Uttam Potdar (A-30)  

to drive a customs car.  However, as he (A-82) was an officer of a  

lower rank in the Customs Department, it was his superior officers  

who were actually  involved in  the  conspiracy.  His  involvement  

was  to  the  extent  of  the  offence  punishable  under  Section  3(3)  

TADA, which includes conspiracy to a certain extent, as well as of  

offences punishable under the Indian Penal Code; the Explosives  

Act; the Explosives Substances Act; and the Arms Act etc.  Thus,  

despite the fact that he himself had been involved in abetting the  

landing  and  transportation  of  contraband,  he  could  not  be  held  

guilty  of  the  larger  conspiracy.  The  appeal  with  respect  to  

Jayawant Gauruv (A-82) was hence, dismissed.

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II. Mohd. Sultan Sayyad (A-90)      

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

charged  for  attending  the  meeting  that  had  been  held  at  Hotel  

Persian Darbar on 6.1.1993, alongwith co-accused  Ranjit Kumar  

Singh  Baleshwar  Prasad  (A-102)  and  Customs  Superintendent  

Lotle  (PW-154).  At  the  said  meeting,   he  (A-90)  had  allowed  

Mohd.  Dossa  and  his  associates  to  carry  on  their  smuggling  

activities,  and  had  further  facilitated  their  landing  at  Dighi  on  

9.1.1993,  which was   within  his  territorial  jurisdiction.  He was  

further  charged for  the same and also  for  permitting smuggling  

activities of Tiger Memon (AA) and his associates on 2.2.1993.  

After meeting Tiger Memon (AA) and his associates at Hotel Big  

Splash on 2.2.1992, he had further facilitated the landings of arms,  

ammunition and explosives at Shekhadi on 3.2.1993 and 7.2.1993.  

He  has  been  convicted  under  Section  3(3)  and  has  been  

awarded a punishment of 7 years RI alongwith a fine of Rs.1 lakh,  

and in default of payment of fine, to further undergo RI for 3 years.  

He has already served the sentence and deposited the fine.

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

Special judge came to the conclusion that:

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 “Truly  speaking  receipt  of  bribe  amount  for   allowing the said operation considered from proper   angle also connotes that  the act  committed by  A- 102,  90,  113 & 82 being primarily  for  receipt  of   bribe  amount  by  misusing/abusing  their  official   position  would definitely  fall  out  of  sphere  of  the   conspiracy  for  which  the  relevant  operation  was   organized and effected by other co-conspirators for   commission of terrorist act. The same is obvious as   conspirators always join the conspiracy or become   members  of  conspiracy  due to  being interested  in   either  furthering  the  object  of  conspiracy  or   achieving the object of conspiracy.  The payment of   the money for commission of act which may have a   semblance  of  furthering  object  of  conspiracy  will   still  not  make  the  concerned  liable  for  offence  of   conspiracy.  The  same  is  apparent  as  the  act   committed  by  them would  be  for  the  purposes  of   receiving  the  said  payment  and  not  mainly  for   furthering the object  of  conspiracy.  It  is  true that   their  such  acts  as  ruled  earlier  would  amount  to   commission of offence of an abetment or assistance   etc.  for  commission  of  terrorist  act  by  other   conspirators and they could be held  liable for the   same but still they cannot be said to be involved in   the conspiracy.  In view of the aforesaid, none of the   A-102, 90, 113 & 82 can be said to be guilty for   commission of offences of conspiracy for which the   charge at head 1st ly is framed against them or even   otherwise for any smaller conspiracy. However, by   way of abundant caution it will necessary to record   that  aforesaid  observations  is  limited  to  above   stated accused from Customs dept., and the same is   not in relation to A-112.”   

458. As the learned Special Judge has dealt  with the said issue  

elaborately and has placed the respondents at par, we do not see  

any cogent reason to take a view contrary to the view that has been  

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taken in the case of the co-accused  Jayawant Keshav Gaurav (A-

82).  

III.  Ranjitkumar Singh Baleshwar Prasad (A-102)      

459. In addition to the general charge of conspiracy, he (A-102)  

has been charged similarly to  accused (A-90),  for  attending the  

meeting  that  was  held  on  6.1.1993  at  Hotel  Persian  Darbar  

alongwith  the  other  accused,  and  for  thereafter  allowing  the  

smugglers  to  continue  their  smuggling  activities  within  their  

territorial  jurisdiction  in  lieu  of  payment  of  Rs.7.80  lakhs  per  

landing. In furtherance thereof, the contraband, including arms and  

ammunition  were  smuggled  into  India,  on  9.1.1993  within  the  

limits of their territorial jurisdiction.  He was further charged with  

facilitating the transportation of arms, ammunition and explosives  

on  3.2.1993  and  7.2.1993.   Thus,  he  has  been  convicted  under  

Section  3(3)  TADA  and  has  been  awarded  the  punishment  of  

imprisonment for 9 years, alongwith a fine of Rs. 3 lakhs, and in  

default of payment of fine, to further undergo RI for a period of 4  

years. The respondent (A-102) has presently served out more than  

five  years  of  the  punishment  awarded  to  him  and  has  also  

deposited the fine.

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

Special Judge came to the conclusion as under:

“265)  Without  making  any  unnecessary  dilation   about  the  self-eloquent  evidence  about  which  the   relevant excerpts are cited earlier it can be safely   said that considering the act committed by these 4   accused as reflected from same i.e. participation of   A-102  &  90  in  Persian  Darbar  meeting  and   negotiating with smugglers about the bribe amount   to be paid and granting them a charter to smuggle   the contraband articles or in fact any thing, the act   of  A-82  inspite  of  being  present  on  the  spot  of   interception of  goods by police,  instead of  seizing   the  same  allowing  the  same  to  be  transported   further and in most clandestine manner piloting the   convoy carrying the contraband goods on its way to   destination  uptil  a  particular  spot,  advising  the   policemen in clandestine manner etc., and of A-II3   though  not  being  directly  connected  with  said   landing readily & willingly accepting his share of   booty from the bribe amount received for the said   landing  and  thereby  denoting  his  implied   connivance for the said operation seized earlier; not   revealed  otherwise  in  view  of  himself  being  not   directly  involvement  in  commission  of  act  and   considering the further acts committed byA-90, 82   and 113 regarding Shekadi landing and so also to   some  extent  by--A-l02  clearly  reveals  themselves   having committed the offence u/s. 3(3) of TADA for   which each of them has been charged with at this   trial.  266)  However,  the  careful  consideration  of  said   evidence  and even  after  taking  into  consideration   the  fact  that  A-l02 and  A-90  had  participated  in   Persian Darbar meeting; still  the evidence having   fall  short  of  themselves  having  connived  with  the   conspirators in this case for commission of said act   for the purposes of conspiracy, it will be difficult to   hold  them  or  an  of  them  liable  for  offence  of   conspiracy for which each of them has been charged   with  on  the  basis  of  evidence  surfaced  regarding   

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Dighi  landing episode  and so  also  about  Shekadi   landing episode about which the discussion is made   later on.  267)  Truly  speaking  receipt  of  bribe  amount  for   allowing the said operation considered from proper   angle also connotes that the act committed by the A- 102,  90,  113 & 82 being primarily  for  receipt  of   bribe  amount  by  misusing/abusing  their  official   position  would  definitely  fallout  of  sphere  of  the   conspiracy  for  which  the  relevant  operation  was   organized  and effected  by other  co-accused.   The   same  is  obvious  as  conspirators  always  join  the   conspiracy or become members of conspiracy due to   being  interested  in  either  furthering  the  object  of   conspiracy or achieving the object of conspiracy.   The  payment  of  the  money for  commission  of  act   which may have a semblance of furthering object of   conspiracy will still not make the concerned liable   for offence of conspiracy. The same is apparent as   the  act  committed  by  them  would  be  for  the   purposes  of  receiving  the  said  payment  and  not   mainly for furthering the object of conspiracy. It is   true  that  their  such  acts  as  ruled  earlier  would   amount to commission of offence of an abetment or   assistance et for commission of terrorist act by other   conspirators and they could be held liable for the   same but still they cannot be said to be involved in   the conspiracy. In view of the aforesaid, none of the   A-102, 90, 113 & 82 can be said to be guilty for   commission of offences of conspiracy for which the   charge at head 1st ly is framed against them or even   otherwise for any smaller conspiracy. However, by   way  of  abundant  caution  it  will  be  necessary  to   record  that  aforesaid  observations  is  limited  to   above stated 4 accused from Customs dept., and the   same is not in relation to A-102 i.e. Addl. Collector   of  Customs  whose  case  clearly  appears  to  be   different i.e. his connection with Tiger Memon being   spelt  from  evidence  revealed  during  Shekadi   landing, there being hardly any evidence of himself   having received….”

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461. In view of the opinion expressed hereinabove, as regards the  

other accused,  we are not able to accept the appeal filed by the  

State in respect of Ranjitkumar Singh Baleshwar Prasad (A-102)  

either.

IV.  Sudhanwa Sadashiv Talwadekar (A-113)      

462. He  has  been  charged,  in  addition  to  the  first  charge,  for  

knowingly  facilitating  the  smuggling  of  arms,  ammunition  and  

explosives  by  Dawood  Ibrahim,  Tiger  Memon  (AA)  and  their  

associates, for the purpose of committing terrorist activities by way  

of their non-interference in lieu of payment of  illegal gratification  

made to them, despite the fact that he was in possession of specific  

information and had knowledge of the fact that  arms, ammunition  

and explosives  were  likely  to  be  smuggled into the country for  

facilitating  terrorist  activities.    He  has  been  convicted  under  

Section  3(3)  TADA  and  was  awarded  the  punishment  of  

imprisonment for 8 years RI, alongwith a fine of Rs. 2 lakhs, and  

in default of payment of fine, to further undergo RI for 3 years.  

463. The  learned  Special  Judge  after  appreciating  the  entire  

evidence on record came to the conclusion that:

“Thus considering material in the confession of A- 113 and aforesaid co-accused the same leads to the   

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conclusion of A -113 also being involved in Shekadi   landing operation as denoted by said material and   as such having committed offence u/s. 3(3) of TADA   for which he is charged at  head 2nd ly  clause 'b'.   Since case of A-113 is more so over akin regarding   his liability to Shekhadi landing with that of A-82 as   both  of  them  were  at  Shekhadi  coast  instead  of   again repeating said discussion it can be safely said   that for same reason of which A-82 has been found  guilty for commission of offence under Section 3(3)   of  TADA  Act  A-113  will  be  required  to  be  held   guilty.  Needless  to  add  that  for  same  reason  as   stated  in  said  discussion  evidence  pertaining  to   receipt  of  bribe  amount  and/or  recovery  of  same   during  course  of  investigation  and  as  tabulated   about is not threadbare discussed. Thus on basis of   all material surfaced at trial A-Il3 will be required   to  be held guilty  for commission of  offence u/sec.   3(3) of TADA Act. Needless to add that similarly as   that of A-82 or even A-102 he can not be held guilty   for offence of conspiracy for which he is charged   with.”  

(Emphasis added)

464. This accused (A-113) has already served 6 ½ years and has  

deposited the fine. Being at par with the other co-accused, in this  

present appeal, no further interference is required.  

465. We are  fully  aware  of  our  limitation  to  interfere  with  an  

order  against  acquittal.  In  exceptional  cases  where  there  are  

compelling circumstances and the judgment under appeal is found  

to be perverse, the appellate court can interfere with the order of  

acquittal. The appellate court should bear in mind the presumption  

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of  innocence  of  the  accused  and  further  that  the  trial  Court’s  

acquittal bolsters the presumption of his innocence. Interference in  

a  routine  manner  where  the  other  view  is  possible  should  be  

avoided,  unless  there  are  good  reasons  for  interference.  (Vide:  

State of Rajasthan v. Darshan Singh @ Darshan Lal,  AIR 2012  

SC 1973).

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

interfere  with  the  order  of  the  Designated  Court  so  far  as  the  

acquittal of the respondents on a particular charge is concerned.  

The appeal lacks merit and is liable to be dismissed.  

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CRIMINAL APPEAL NO. 1439  OF 2007

Khalil Ahmed Sayed Ali Nazir                           …Appellant

Versus

State of Maharashtra Through CBI                    … Respondent                    

AND

CRIMINAL APPEAL NO. 1035 of 2012

State of Maharashtra      …Appellant

Versus

Khalil Ahmed Sayeed Ali Nasir          … Respondent

Criminal Appeal No. 1439 of 2007                                               

466. This  appeal  has been preferred against  the judgments and  

orders dated  18.9.2006 and 19.7.2007, passed by Special Judge of  

the Designated Court under the  TADA in the Bombay Blast Case  

No.1 of 1993. The appellant  (A-42) was guilty for the offence of  

conspiracy to commit terrorist acts i.e.  part of charge from charge  

firstly,  punishable  under  Section  3(3)  TADA,  and  on  the  said  

count, the appellant was convicted and sentenced to suffer rigorous  

imprisonment  for  10  years,  and  was  ordered  to  pay  a  fine  of  

Rs.50,000/-,  and in default  of  payment  of  fine,   was ordered to  

suffer further RI for a period of one year. The appellant was also  

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found guilty for the offence punishable under Section 3(3) TADA,  

for the commission of such acts as were found to be proved from  

charge at head secondly, and he was convicted and sentenced to  

suffer RI for 10 years and was ordered to pay a fine of Rs.25,000/-  

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

for a period of six months. He was further convicted and sentenced  

for 10 years R.I. with fine of Rs.50,000/- under Section 6 TADA;  

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

B)(a) of the Arms Act, but no separate sentence for the same was  

awarded.  However,  all  the  sentences  have  been  directed  to  run  

concurrently.    

467. Facts and circumstances giving rise to this appeal are :

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

was  charged  for  his  involvement  in  the  Shekhadi  landings  on  

3.2.1993 and 9.2.1993 including the  transportation  of  smuggled  

arms, ammunition and explosives from Shekhadi to Wangni Tower  

and further during the period of February-March 1993 for keeping  

in his possession, two 9 mm pistols, 3 magazines and 25 rounds  

without a valid licence, which were recovered on 26.3.1993 from  

his residence. In view of his possession of the aforesaid arms and  

ammunition, he was further charged under Section 6 TADA.  

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

held the appellant guilty and awarded punishment as referred to  

hereinabove.

Hence, this appeal.  

468. Mr.  Mushtaq  Ahmad,  learned  counsel  appearing  for  the  

appellant, has submitted that the court below has over emphasized  

the evidence of recovery which is not worth reliance for the reason  

that the same did not bear the signature of the appellant/accused  

(A-42).  Moreover,  the  panch  witness  was  a  stock  witness,  and  

therefore, his evidence is not credible. It was also submitted that  

the confession of the appellant (A-42) was not voluntary and that  

the same was obtained by way of coercion and that the entire case  

is concocted. Therefore, the appeal deserves to be allowed.

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

State has opposed the appeal, submitting that the participation of  

the appellant (A-42) in the landing has been corroborated by the  

confessional  statements  of  various  co-accused;  and  that  the  

appellant  (A-42)  was  well  acquainted  with persons  indulging in  

regular  smuggling activities.  Furthermore,  it  was  also  submitted  

that  the  said  confessional  statement  was  recorded  strictly  in  

accordance with the law,  and therefore the same must  be relied  

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upon.  Moreover,  the  recovery  was  made  on  the  basis  of  the  

disclosure statement of the appellant, and the fact that the same did  

not bear his signature would not make it inadmissible. Thus, the  

appeal lacks merit and is liable to be dismissed.  

470. We  have  considered  rival  submissions  made  by  learned  

counsel for the parties, perused the evidence on record and also the  

impugned judgment.  

471. Evidence against the appellant:

(a) His own confessional statement  

(b) Confessional statement of Muzammil Umar Kadri (A-25)

(c) Confessional  statement  of  Dawood  @Dawood  Taklya  Mohammed Phanse @Phanasmiyan (A-14)

(d) Confessional  statement  of  Sajjad  Alam  @Iqbal  Abdul  Hakim Nazir (A-61)

(e) Confessional statement of Tulsiram Dhondu Surve (A-62)

(f) Confessional statement of Rashid Umar Alware (A-27)

(g) Depositions of Vijay Govind More (PW-137), Laxman Loku  Karkare (PW-45), Hari Baburao Pawar (PW-596)

Confessional statement of appellant (A-42):

472. The  appellant  (A-42)  in  his  confessional  statement  stated  

that he was an agriculturist and owned land in Medandi and that he  

indulged in agricultural and smuggling activities.  He (A-42) used  

to smuggle for Tiger Memon (AA).  He had worked as a welder in  

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a defence workshop in Kuwait during 1976-1987.  Thereafter, he  

had worked in Saudi Arabia in the year 1991 as a caterer in a hotel.  

Thereafter,  he  started  his  own  workshop.   He  (A-42)  had  

participated in the landing and transportation of smuggled goods,  

particularly, silver bricks etc. which had taken place on 3.2.1993,  

alongwith Dawood Taklya (A-14) and Abdul Salam Hishamuddin  

Nazir  who  belonged  to  his  village.   Appellant  (A-42)  gave  a  

complete description of how the goods were smuggled and deposed  

that they reached Shekhadi at about 11.00 P.M.  The material had  

already  landed  before  they  reached,  and  thereafter,  the  said  

material  was loaded into a truck.  Tiger Memon (AA) was also  

present.   The said  material  was filled into 196 boxes and these  

boxes were then sealed by wrapping them up in Bardan (Jute bags).  

The appellant (A-42) sat with the driver while transporting the said  

goods and they were hence, brought into Bombay.  The appellant  

(A-42)  stated that it was only after returning from Shekhadi and  

after the transportation of the smuggled goods was complete, that  

he was informed by Hasan and Azim that the landed material was  

not silver,  but arms and ammunition, hand grenades,  black soap  

and cartridges.  He further admitted that he was given Rs.5,000/-  

by  Dawood  Taklya  (A-14)  as  a  reward  for  participating  in  the  

landing.  Tiger Memon (AA) had threatened everybody that in the  

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event that anyone disclosed details about the said landing to any  

other person, his family would be eliminated.   He further stated  

that on 22.3.1993, Dawood Taklya (A-14) had come to his house  

and had given him a bag for safe-keeping, stating that he would  

collect the same later, as the police was searching for him.   He (A-

14)  informed  the  appellant  (A-42) that  the  bag  contained  2  

revolvers and also some other material.  Dawood Taklya (A-14)  

was  arrested  by  the  police,  and  during  his  interrogation,  he  

disclosed  to  the  police  that  2  revolvers  were  lying  with  the  

appellant  (A-42).  Thus,  the  police  came  to  his  house,  and  the  

appellant  (A-42) then took out the revolvers from a place in front  

of his house where he had hidden the same, and handed them over  

to the police.

Confessional statement of Muzamil Umar Kadri (A-25):  

473. He disclosed the participation of the appellant (A-42) in the  

Shekhadi landing on 3rd February.  He also stated that in January  

1993, Rahim Laundrywala alongwith Shafi had come to the house  

of the appellant Khalil (A-42) by jeep, and had called him there.  

Shafi had told him to keep certain goods at his house.   After being  

asked by the co-accused, Shafi informed him that the goods were  

actually 16 rifles and 32 cassettes. When he expressed his inability  

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to  keep  them,  he  was  threatened  with  dire  consequences  and  

therefore,  he kept the said goods in his house.   Thus,  A-25 has  

stated that  in January 1993,  the witness  was  forced to keep the  

arms and ammunition upon coercion by Rahim Laundrywala and  

Shafi.  At the said time, the appellant (A-42) was also present with  

them and had also participated in the landing at Shekhadi.  

Confessional statement of Dawood Taklya (A-14):

474. He  supported  the  case  of  the  prosecution  regarding  the  

participation of  the appellant  (A-42)  in the landing at Shekhadi.  

Before the landing took place, the appellant (A-42) had negotiated  

with the Mhasla Custom Inspector,  Kadam and the said Custom