Supreme Court of India
AHMED SHAH KHAN DURRANI @ A.S. MUBARAKversusSTATE OF MAHARASHTRA
- Citation
- 2013 INSC 178
- Decided
- 21 March 2013
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
An accused who makes a disclosure leading to recovery of contraband and fails to explain the source of knowledge can be inferred to be in conscious possession, and participation in landing and transportation of arms with knowledge of their nature amounts to abetting terrorist activities under TADA, but liability for larger conspiracy requires evidence of further acts after the initial operations.
Summary
The Supreme Court of India delivered a consolidated judgment on multiple appeals arising from the 1993 Bombay serial blasts case under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The appeals challenged convictions and acquittals of various accused persons involved in the conspiracy, landing, transportation, and possession of arms, ammunition, and explosives. The Court examined the sufficiency of evidence, including confessional statements, recovery memos, and witness depositions, and applied principles governing appeals against acquittal. It upheld the convictions of most accused, including A-20 for possession of an AK-56 rifle, A-31 for participation in landing operations, A-46 for abetting terrorist activities, A-73 for aiding and abetting, A-62 for facilitating use of government premises, and A-42 for involvement in conspiracy. However, the Court allowed two State appeals against acquittal of larger conspiracy, convicting A-30 (Uttam Shantaram Potdar) and A-79 (Issaq Mohd. Hajwane) and awarding them life imprisonment. The Court dismissed all other appeals, confirming the sentences imposed by the Designated Court.
Issues considered
- Whether the recovery of an AK-56 rifle and magazines at the behest of A-20 was sufficient to prove conscious possession under Section 5 TADA?
- Whether the confessional statements of co-accused were admissible and reliable to establish participation in landing and transportation of arms?
- Whether A-30 and A-79 could be held guilty of larger conspiracy despite their limited roles in the early phases of the conspiracy?
- Whether the appellate court can interfere with an order of acquittal when two views are possible?
- Whether the absence of the accused's signature on a seizure memo renders the recovery evidence inadmissible?
- Whether the evidence established that A-31, A-46, A-73, A-62, and A-42 had knowledge of the nature of contraband and intended to further terrorist activities?
Legislation cited
- Arms Act, 1959s. 25(1-A), s. 25(1-B)(a), s. 3, s. 7
- Customs Act, 1962s. 111, s. 135(b)
- Explosives Act, 1884s. 9-B(1)(a)(b)(c)
- Explosive Substances Act, 1908s. 3, s. 4, s. 5, s. 6
- Indian Penal Code, 1860s. 120B, s. 201, s. 202, s. 212, s. 302, s. 307, s. 324, s. 326, s. 427, s. 435, s. 436
- Prevention of Damage to Public Property Act, 1984s. 4
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 3, s. 3(3), s. 3(4), s. 5, s. 6
Subjects
Terrorist and Disruptive Activities (Prevention) Act, 1987Bombay serial blasts 1993ConspiracyRecovery of weaponsConfessional statementAppeal against acquittalPossession of arms and ammunitionLanding and transportation of contrabandAbetment of terrorist activitiesLarger conspiracy
Judgment
[2013] 16 S.C.R .. 1
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK A
V.
STATE OF MAHARASHTRA
(Criminal Appeal. No. 1438 of 2007)
MARCH 21, 2013
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.5 - Bombay serial blasts of 1993 - Possession of weapon
- A-20 charged for keeping one AK-56 rifle and two C
magazines - Conviction of A-20 - Justification - Held:
Justified - Sufficient material to show that recovery had been
made at the behest of A-20 from the factory owned by a
partnership to which he was the partner - In such a fact-
situation, he' ought to have explained the reason/source of his D
-
knowledge of such contraband articles being kept in his factory
- As he had 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 drawn is that he himself had kept the same at that E
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
-Explanation that at the time of recovery he did not have the
key, not enough to tilt the balance in his favour - As A-20 F
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 u/s.5 TADA.
G
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss. 3 and 5 -Bombay serial blasts of 1993 - Participation
in landing and transportation of smuggled arn:is, ammunition
and explosives ~-conviction of A-31 - Justification - Held:
1 H
2 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Justified - Evidence on record made it clear that A-31 had
participated in landing operation of contraband goods at
Shekhadi as he was one of the persons who accompanied
Tiger Memon (AA) and others and he had also been to
Wangni Tower alongwith other associates and contraband
B material were loaded in tempo - The tempo was taken by him
alongwith absconding accused to Mumbra as instructed by
Tiger Memon (AA) - This version duly supported/corroborated
by A-128 and by the evidence of PW-2 - Arms Act, 1959.
C Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss.3(3) and 6 -Bombay serial blasts of 1993 - Facilitation
of commission of terrorist activities - Smuggling and landing
of arms, ammunition, hand grenades and explosives -
Conviction of A-30 - Challenged - Held: A-30 was aware that
the smuggled goods were arms and ammunition, and even
D after acquiring such knowledge, he had continued the landing
of said smuggled goods - He was thus liable for commission
of offences uls.3(3) and 6 TADA - 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
E 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 - A-30 had
been fully aware of the nature of contraband, and inspite of
coming to know that the contraband contained arms,
F ammunition and explosives, he continued to help the
smugglers - Further, A-30 had close association with A-82,
officer of the customs department, who had been helping the
smugglers by taking a bribe through A-30 - Therefore, A-30
also convicted for conspiracy - Penal Code, 1860 - s. 1208
G - Arms Act, 1959.
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss. 3 and 6 - Bombay serial blasts of 1993 - Participation
in landing and transportation of contraband smuggled into the
H country by Tiger Memon (AA) - Abetting and participating in
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 3
STATE OF MAHARASHTRA
terrorist activities - Conviction of A-46 - Challenged - Held: A
Confession of A-46 revealed that he was in employment of
the Memon family - It could not be accepted that A-46 was
not aware of illegal business of Tiger Memon (AA) or about
the nature of the contrabands smuggled into India - Presence
of A-46 at the place where the goods were exchanged, at B
Wangni Tower and concealed into cavities of vehicles for
transportation to Bombay, shows that he was a very close
confidant of Tiger Memon (AA) - A-46 handed over a motor
vehicle containing arms and ammunitions at residence of A-
68 - Confessions of co-accused clearly established the c
involvement of A-46 along with 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 - Conviction of A-46 confirmed.
Terrorist and Disruptive Activities (Prevention) Act, 1987 D
- ss.3(3) and 6 - Bombay serial blasts of 1993 - Landing and
transportation of arms and ammunition for committing
terrorist activities - Possession/storage of arms, ammunition
and explosives - Conviction of A-73 ulss. 3(3) and 6 -
Justification - Held: Justified - A-73's involvement and E
participation in the landing operations of the contraband
substances was clearly established - His own confessional
statement revealed that he, being fully aware of the contents
of the contraband, shifted the same from the truck to other
vehicles and that inspite of the fact that he knew that the F
contraband contained arms, ammunition and ROX, he
continued to be associated with the other co-accused -
Therefore, he aided and abetted terrorist activities - However,
the said acts were committed by him in the early phases of
the conspiracy, even prior to Tiger Memon (AA) deciding the G
target of the Blast; and after this particular incident A-73 had
not been involved in any landing job -Therefore, A-73 cannot
be held guilty for the larger conspiracy.
Tefforist and Disruptive Activities (Prevention) Act, 1987
H
4 SUPREME COURT REPORTS [2013] 16 S.C.R.
A - s. 3(3) - Bombay serial blasts of 1993 - Landing &
transportation of smuggled arms, ammunition and explosives
- Conviction of A-62 - Held: A-62, watchman of government
premises i.e. Wangni Tower, had allowed the same to be used
for the purpose of facilitating the smuggling and landing of
B 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 ROX explosives in a field existing in his name -
Thus, he was rightly convicted uls.3(3) TADA and s.202 /PC
C - Being a government servant, he intentionally omitted giving
information to the authorities about the offences committed
in his presence, which he was legally bound to do - Penal
Code, 1860 - s. 202.
Terrorist and Disruptive Activities (Prevention) Act, 1987
D - s.3 - Bombay serial blasts of 1993 - Larger conspiracy -
Involvement in landings and transportation of smuggled arms,
ammunition and explosives - Whether A-42 could be held
guilty for the offence of larger conspiracy - Held: Having
regard to the fact that A-14 had chosen A-42 for the purpose
E of keeping two revolvers with him and the fact that A-42 had
readily kept the same, reveals that he was a man in which the
prime accused had confidence with respect to the conspiracy
- A-42 was involved in landing operations, however, since he
had committed the relevant acts much prior to the date of the
F bomb blasts and had not participated in any meetings, nor
was he connected with the same in any manner, and the fact
that the acts were committed by him at a time when even the
targets of the Bomb blasts had not been fixed, he could not
be held guilty for the offence of larger conspiracy.
G
Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.3 - Bombay serial blasts of 1993 - Larger conspiracy -
Acquittal of A-79 by Special Judge - Justification - Held: The
Special Judge was not justified in acquitting A-79 from the
charge of larger conspiracy merely on the ground that he did
H
\
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 5
STATE OF MAHARASHTRA
not know about the places ~here the bombs had to be thrown A
and he was not th~ resident of Bombay and did not participate
in the conspiratorial meetings - Finding of fact recorded by
the Special Judge also contradictory as the court held that he
participated in the arrri_s' training at Sandheri, however, he also
observed that the evidence does not disclose that any of those B
accused had been trained in handling of handgrenades -
There being sufficient material on record that A-79
participated in the training of handling the handgrenades,
there was no occasion for the Special Judge to take such a
view - Arms Act, 1959.
c
Appeal - Appeal against acquittal - Scope for
interference - Held: 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 - The appellate court should bear in D
mind the presumption of innocence orthe 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. E
Evidence - Recovery evidence - Appreciation - Held:
Signature of the accused is not required on the seizure memo
- Plea that evidence of recovery cannot be relied upon for the
reason that the same did not bear the signature of accused,
F
not acceptable.
Mrinal Das & Ors. v. State of Tripura (2011) 9 SCC 479:
2011 (14 ) SCR 411; State of Rajasthan v. Darshan Singh
@ Darshan Lal AIR 2012 SC 1973: 2012 (6) SCR 18; State
of W.B. v. Kai/ash Chandra Pandey (2004) 12 SCC 29: 2004 G
(5) Suppl. SCR 437; State of Rajasthan v. Teja Ram & Ors.
(1-999} S SCC, 507: 1999 (2) SCR 29 482 and Prasad
Ramakant Khade v. State of Maharashtra (1999) 8 SCC 493
- relied on.
H
6 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Case Law Reference:
2012 (6) SCR 18 relied on Para 320
2011 (14) SCR 411 relied on Para 388
2004 (5) Suppl. SCR 437 relied on Para 481
B
1999 (2) SCR 29 relied on Para 482
(1999) 8 sec 493 relied on Para 483
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
C No. 1438 of 2007
From the Judgment and Order dated 30.05.2007 of the
Presiding Officer of the Designated Court, u~der TADA (P)
Act, 1987 for Bombay Blast Cases, Greater Bombay in
D Bombay Blast Case No.1 of 1993
WITH
Crl.A. Nos. 912/2007, 1030/2012, 1311/2007, 417/2011,
1610/2011, 398/2011, 1420/2007, 1031/2012, 675-681/2008.
E 600/2011, 406/2011, 408/2011, 1034/2012, 416/2011, 512/
2008, 401/2011, 595/2011, 171/2008, 172/2008, 403/2011.
1630/2007, 1029/2012, 207/2008, 415/2011, 2173/2010,
1632/2007, 271/2008, 598/2011, 1439/2007, 1035/2012, 203/
2008, 396/2011, 414/2011, 1423/2007 and 1032/2012
F
Rajesh Pd. Singh, Mushtaq Ahmad, Arvind Kumar
Sharma, K.N. Rai. Ms. Farhana Shah, Dr. Sushi! Balwada, Dr.
Kailash Chand, Sanjay Jain, P. Parmeswaran, Vishwa Pal
Singh, B. Krishna Prasad, Ms. Anjali Jha, Advs., for the
Appearing Parties.
G
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. Criminal Appeal No. 1438 2007.
1. This appeal has been preferred against the impugned
H judgment and order dated 30.5.2007, passed by Special Judge
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 7
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
of the Designated Court under the Terrorist and Disruptive A
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 B
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 C
herein have been elaborately dealt with in the connected appeal
i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak
Memon v. State of Maharashtra thr. can,it may be pertinent
to mention only the relevant facts and charges against the
appellant (A-20). D
B. Bombay Blast took place on 12.3.1993 in which 257
pers~ns 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 E
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 F
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 conyicted. G
' - \I
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 H
•
8 SUPREME COURT REPORTS [2013] 16 S.C.R.
A with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with
Sections 302, 307,326,324.427,435.436, 201and212 IPC and
offences under Sections 3 and 7 read with Sections 25 (I-A),
(1-B)(a) of the Arms Act, 1959 (hereinafter referred to as the
'Arms Act'), Sections 9-8(1)(a)(b)(c) of the Explosives Act,
8 ·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
C 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.
D 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.
E 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 that the recovery had not been proved in
accordance with law. The disclosure statement alleged to have
F 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
G 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
H made, has not been examined. None of the neighbours of that
AHMED SHAH KHAN DURRANI @A:S. MUBARAK v. 9
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
6. We have considered the rival submissions made by 'f'
learned counsel for the parties and perused the recerd.
7. Evidence against the appellant <A-20):
(a) Confessional statement of the appell,ant (A-20)
G
(b) Confessional statement of Muradilbrahim,Kh~n{A•
130)
(c) Deposition of Mohame·d Ayub Mohamed Umar
(PW-72)
H
10 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (d) Deposition of Sahadev (PW-181)
(e) Deposition of Nagesh Shivdas Lohar (PW-356)
(f) Deposition of Shivaji Shankar Sawant (PW-524)
B (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
C 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
D 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
E 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):
F 9. He had disclosed that he was fully acquainted with
Yakub Veda and the appellant (A-20). Thus, he was having
acquaintance with hardened criminals.
Deposition of Mohamed Ayub Mohamed Umar CPW-72)
G
1O. He is a pan ch 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.1.
asked him whether he would like to act as a panch witness in
Ji
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 11
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J;}
a case related to the Bombay Blast. He consented for the same A
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 B
the entire version of the recovery
The witness further deposed thaflhe police party alongwith
the accused (A-20) and the panch witnesses proceeded in the
police vehicle and towards the place disclosed by the appellant C
(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 D
were taken out of the said gunny bag. The AK-56 rifle and
magazines were SE;!parately wrapped in brown paper and three
packets were prepared and sealed separately. The packets
were signed by him, co-panchas and St:lri Sawant.
E
In cross-examination, the witness (PW.72) said that label
put up on the recovered goods had his slgnature 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:How_ever, F
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)
G-
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 H
12 SUPREME COURT REPORTS (2013] 16 S.C.R.
A 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 disclosed that
B 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
C bears his signature and the signatures of panch witnesses and
it was ii;ompleted 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
D 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
E 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
F any L.A.C. No. 22/93 and also did not know the name of officer
who had registered L.A.C. 22/93.
Deposition of Sahadev CPW-181 ):
G 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 CPW-356)
H
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 13
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
13. He has deposed that on 17.4.1993, he alongwith A
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 B
in Hindi in the panchnama which was ma~ked as Exh. 378 and
is the same panchanama recorded by him about the statement
of appellant (A-20) between 1.7th 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 C
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 workshop. This panchnama was concluded at 23.10 D
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 E
making the disclosure statement, the police had taken the
accused alongwith the panch witnesses to a closed workshop
named as 'Bon~ 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 F
the same. The panchas alorigwith _the accused (A-20) and the
police party entered theworkshop 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 G
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 H
14 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
15. The Designated Court after appreciating the evidence
8 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
c 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
•D 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
cl.auses b) and c) the same will lead to the conclusion
as stated aforesaid. With regard to matter stated in
E 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
F advanced on the basis of A-20 at the time of reco'very
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
G 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
H nature of denoting himself not being in conscious
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 15
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
possession of contraband articles within the notified A
area .... "
16. We have appreciated the evidence on record and the
case depends upon the veracity of evidence regarding
recovery.
B J;
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 C
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 somepody
had told him about that, or he had seen the things lying there, 0
the only reasonable inference is drawn that he hi,mself had kept
the same at that place. Being a partner of the firm if he wa~
having the knowledge that some contraband were lying in his
premises, he ought to have informed the police if he had no
guilty mind.
E
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, F
and in such a fact-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 G
Shri Sunil Kumar, learned senior counsel appearing for the
· appellant (A-20), that the panch witness was the resfclent 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,
H
16 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
8
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
C 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 ~f the prosecution only on the ground that he had
D 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.
E 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 appeUant-(A-
20) had made the disclosure statement in his pr~sence, he
could explain the same. Therefore, it could not be held that he
F 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
G 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
H evidence of recovery.
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 17
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
24. Law does not require the witness to corroborate the A
evidence of an independent witness. Thus, the evidence of
Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by
the contemporaneous panchnama is trustworthy.
25. As the appellant (A-20) made a statement leading to B
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 C
conclusion drawn by the learned Designated Court. The appeal
is accordingly dismissed.
CRIMINAL APPEAL N0.912 OF 2007
Aziz Ahmed Md. Ahmed Shaikh ... Appellant D
Versus
State of Maharashtra ... Respondent
26. This appeal has been preferred against the judgments E
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 F
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.
G
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 H
18 SUPREME COURT REPORTS [2013] 16 S.C.R.
A where criminal conspiracy was discussed for distributing arms
and ammunition to co-conspirators and for providing funds to
them. 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 Q.300 with three
B 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.
c
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.
D
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
E 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
F statement of the appellant cannot be rel)ed 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
G 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.
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 19
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
30. We have heard learned counsel for the parties and A
perused the record.
31. Evidence against the appellant CA-21):
(a) Confessional statement of the appellant (A-21)
B
(b) Deposition of Bhaskar Babu Rao Jadhav (PW-57)
(c) Deposition of Dayandeo Sonaji Geete (PW-320)
(d) Deposition of Vijay Meru (PW-561)
c
(e) Deposition of Shivajirao Kondiram Babar (PW-683)
Confessional Statement of appellant CA-21 ):
32. His (A-21) confessional statement had been recorded,
however, the same had been discarded by the Designated D
Court, thus it cannot be considered. The evidence against the
appellant (A-21) remains the recovery of the aforesaid arms
and ammunition. In fact, an FIR had been registered on
5.4.1993 at 6.10 p.m. that the appellant (A-21) was found hi
possession of a Carbine of 30 Caliber of U.S. make, three E
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 F
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, G
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 H
20 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B trees and shrubs. On being examined, 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.
C 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.
D 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 giv~n full
E 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):
F 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
G further deposed that he could not remember the manner in
which 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
H acquiring arms. He also deposed that the office of the Bombay
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 21
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Municipal Corporation was inside the Naryalwadi Kabristan A
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. B
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 C
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 D
police party pounced 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
Dirharns and a silver ring were found with him. The inventory E
·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 F
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 G
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 H
22 SUPREME COURT REPORTS (2013] 16 S.C.R.
A 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 (PW-561)
identified the appellant (A-21) on 24.4.1998 in the court and
B 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):
c
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,
D 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
E 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
F a desire to make confession voluntarily etc. etc.
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
G 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 med.ical
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 23
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
examination. He was examined and again sent on policl'! A
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 B
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, C
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 D
A-21 having committed the aforesaid acts for the
purposes of furthering the object of conspiracy."
40. In view of above, the Designated Court found him guilty
i
and imposed the punishment as referred to hereinabove. We
E!
find no reason to interfere with the directions of the Designated
Court. The appeal is accordingly dismissed.
CRIMINAL APPEAL NO. 1030 OF 2012
State of Maharashtra Through CBI ... Appellant F
Versus
Ahmad Shah Khan @ . . . Respondents
Salim Durani & Anr
G
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 C~se No.1 of 1993, by which the respondents
H
24 SUPREME COURT REPORTS (2013] 16 S.C.R.
A (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: ·
B
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
C 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-56 rifle and two empty magazines with intel')tion to
use and commit terrorist acts. Further, under Section 5 TADA,
D 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.
E
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 ~
fine of Rs.25,000/- and, in default of payment of fine, to suffer
F further R.I. for six months. But acquitted for the charge of
conspiracy.
Hence, this appeal.
43. Shri Mukul Gupta, learned senior counsel appearing
G 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
H respondents (A-20 and A-21) and other co-accused have to be
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 25
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
taken into consideration. Therefore, the appeal deserves to be A
allowed.
44. On the other hand, Shri M11c;htaq Ahmad, learned
counsel appearing for the respondents (A-20 and A-21), has
submitted that their confessional statements have rightly been 8
discarded as the same had been recorded in utter disregard
to the statutory provisions. The appeal lacks meritand is liable
to be dismissed.
45. We have considered rival submissions made by the
counsel for the parties and perused the records. C
46. The confessional statements of Ahmad Shah Khan @
~alim Durani (A-20), Shaikh Aziz Ahmed (A 721), Moiddin
l}bdul Kadar Cheruvattam (A-48) and Ismail Abbas Patel (A-
80) had been relied upon by the prosecution. The same stood o
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 E
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.
F
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 G
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 H
26 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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,
B 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
c in a routine manner where the other view is possible should be
avoided, unless there are good reasons for interference. The
findings of fact recorded by a court can be held to be perverse
if the findings have been arrived at by ignoring or excluding
relevant material or by taking into consideration irrelevant/
inadmissible material. The finding may also be. said to be
0
perverse if it is "against the weight of evidence", or if the finding
so outrageously defies logic as to suffer from the vice of
irr atonality.
48. In view of the fact that no legal evidence which could
E 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
F deposited the fine.
The appeal stands dismissed.
CRIMINAL APPEAL NO. 1311 OF 2007
G Yusuf Khan @ Kayum Kasam Khan .. Appellant
Versus
State of Maharashtra (through CBI, STF) ... Respondent
H AND
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 27
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
CRIMINAL APPEAL NO. 417 OF 2011 A
State of Maharashtra ... Appellant
Versus
Yousaf Khan Kasam . . . Respondent B
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 C
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- D
accused at Shekhadi and further for 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, E
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.
F
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 G
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.
H
28 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
record, particularly, because of the confessional statements of
appellant (A-31), A-64, A-128 and further stand corroborated
B 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.
C 53. Evidence against the appellant (A-31) :
(a) Confessional statement of Nasir Abdul Kader
Kewal (A-64)
(b) Confessional statement of Shahnawaz Khan (A-
D
128)
(c) Deposition of Usman Jan Khan (PW-2)
(d) Deposition of Padmakar Krishna Bhonsle (PW-62)
E
(e) Deposition of AJit Surve (PW-604)
Confessional statement of Nasir Abdul Kader Kewal CA-
64):
F 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
G Dastgir used to run the business of Matka at Sandra and thus,
he (A-64) also joined the said business. Subsequently, he
came in association of the 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
H associates of Tiger Memon (AA) were present including
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 29
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
appellant (A-31). At the instance of Tiger Memon, the bags of A
arms ?and explosives brought from the trawler were loaded in
a tempo driven by appellant (A-31).
Confessional statement of Shahnawaz Khan CA-128):
55. Confessional statement of Shahnawaz Khan (A-128) 8
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-31). The
smuggled goods were being loaded in both the tempos. Tiger C
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 D
were reloaded in the cavity of Commander jeeps. The said
. vehicles (Jeeps) left for Bombay. One tempo though empty
followed the jeep.
56. Usman Jan Khan (PW-2) identified the appellant (A- E
31) in.the court. Usman Jan Khan (PW-2) deposed that appellant
(A-31) participated in transportation of smuggled articles. He
deposed that on the relevant date they came. out of the hotel
I
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-31). Tiger F
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 $muggled goods had already
arrived at the Coast. The same' were wrapped in gunny bags. G
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, H
30 SUPREME COURT REPORTS [2013] 16 S.C.R.
A its rounds, handgrenades, pistols, magazines and ROX. 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 by Police Inspector, Anil Prabhakar Mahabole (PW-
8
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
C prepared on 30.11.1993 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
D 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
E 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 ROX. It was in view
?thereof, 3 experts took samples on 30.11.1993 and the report
dated 12.1.1994 detected traces of ROX. This was
F corroborated by panch witness, Asit Binod Ghorai (PW-602).
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
G 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
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 31
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
confession of the co-accused (A-64 and A-128) as well as the A
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 B
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 C
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 landed at Shekhadi by D
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 E
convide.P 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. F
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 G
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 resporident had been aware of the nature of the H
32 SUPREME COURT REPORTS [2013] 16 S.C.R.
A contraband, he cannot escape the liability of charge of
conspiracy. Thus, the appeal deserves to be allowed.
65. Mr. Mushtaq Ahmad, learned counsel appearing for the
respondent (A-31) has submitted that he is merely a transporter
8 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
C 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
D took the same to a far distance but there was nothing on record
to show that he had knowl~dge of the kinds of goods
transported in his tempo.
68. The parameters laid down by this court in entertaining
E the appeal against the order of acquittal have to be applied.
69. From the evidence on recor9, 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
F bE~en to Wangni Tower alongwith other associates and
contraband material were loaded in tempo. The tempo was
taken by him alongwith 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
G 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,
H accordingly, dismissed.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 33
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
CRIMINAL APPEAL NO. 1610 OF 2011 A
Uttam Shantaram Potdar ... Appellant
Versus
State of Maharashtra . . . Respondent 6
AND
CRIMINAL APPEAL N0.398 OF 2011
State of Maharashtra ... Appellant c
Versus
Uttam Shanta ram Potdar ... Respondent
71. Criminal Appeal No.1610 of 2011 has been preferred D
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. E
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 F
are that:
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 G
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 H
34 SUPREME COURT REPORTS [2013] 16 S.C.R.
f7.. 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
8
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
C charge under Section 1208 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
D undergo 14 years R.I. 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
E 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
F 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
G 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
H for the State has opposed the appeal contending that the
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 35
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
appellant was a close associate of Tiger Memon (AA) and his A
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 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 B
allowed.
77. We have heard learned counsel for the parties and
perused the record.
78. Evidence against the Appellant (A-30): c
(a) Confessional statement Of appellant (A-30)
(b) Confessional statement of Janardhan Pandurang
Gambas (A-81)
D
(c) Confessional statement of Jaywant Keshav Gurav
(A-82)
(d) Confessional statement of Mohd. Sultan Sayyed (A-
90)
E
(e) Confessional statement of S.S. Talwadekar (A-113)
(f) Confessional statement of Mohd. Kasam Lajpuria
@Mechanic Chacha (A-136)
F
(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- G
74)
0) Deposition of Dilip Pansare (PW-97)
(k) Deposition of Vyankatesh Hirba (PW-588)
H
36 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (I) Deposition of Dinesh Nakti (PW-95)
Confessional statement of appellant CA-30):
79. The evidence against the appellant (A-30) is his own
confession made on 12th/15th of July, 1993. He has stated
B throughout that he was a landing agent and involved in
smuggling. 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-
acc;used do not speak of the knowledge of the appellant (A-
C 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
0 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) trad bE;!en
recorded. Jamir Kadri (A-133) stated in his confession on the
E 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-
F 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
G Kutta (A-134) and 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
H (Customs) R.K. Singh (A-102) through a Customs Sepoy. On
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 37
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J]
reaching there at 8.00 pm, R .K. Singh, Assistant Collector, A
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 B
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 C
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.
D
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 police officers, to remove any hindrance in the said
smuggling. It is also clear that payments were made through E
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 F
goods a·nd 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 G
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
H
38 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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 come with money on the night of the 10th of the
month. Thus, he (A-30) subsequently met the said S.I. and it
C 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
D 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
E no knowledge with respect to the smuggled arms.
Confessional statement of Janardhan Pandurang
Gambas CA-81 ):
80. In his confessional statement he has revealed the
F 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
G and rods kept in the gunny bags, there were 30 black military
coloured boxes which 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):
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 39
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
81. He was working in the Customs Department at Mahad, A
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 B
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 c
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
0
smuggled goods. This witness has corroborated the
confessional statement of the appellant (A-30).
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) E
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 F
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- G
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
H
40 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
8 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
.cpayments 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
D 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
E collusion with the customs and police officers incfuding 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.
F He has also admitted to accepting the said amount.
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.
G 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
H agent, and that the accused had (A-136) met Uttam Potdar (A-
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 41
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
30) at Mhasla. He (A-136) further corroborated the version of A
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 fivP silver bricks to the police
as security.
B
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 C
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, Shabbir. Shabbir told him (A-133) D
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 E
same for a while, the appellant (A-30) went out to make
arrangements for the un.loading 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 F
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 G
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.
H
42 SUPREME COURT REPORTS (2013] 16 S.C.R.
A 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 weapons had been smuggled at Dighi Jetty on
the previous night.
B
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
c 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
D 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
E
Confessional Statement of SaHm Kutta (A-134):
86. He has corroborated the confessional statement of the
appellant (A-30). However, he (A-134) did not say anything to
F 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 Dighi Jetty and had made arrangements for labour and a
boat. After the loading of the landed goods on vehicles, the
G 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-
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 43
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
30) was a landing agent and a resident of Mhasla, and that the A
appellant (A-30) was well acquainted with Shabbir and Jamir
(A-133) who were involved in smuggling activities.
88. Deposition of Dilip Panseire (PW.97) - In his
deposition, he reveals that he was a childhood friend of the B
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 C
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 D
number 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 E.
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- F
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 G
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 H
44 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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 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
s 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 alo~gwith others shifted 170 bricks in the cavity
c 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
0
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
E 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
F negotiations with smugglers, 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
G
and the inference about certain aspects is required to be
drawn from established facts & circumstances.
Thus having regard to all the aforesaid facets it i~ difficult
to accept that at least at the said place A-30 would not
H have gathered the nature of contraband goods also sent
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 45
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
along with smugglers. It is true that the said further acts A
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. B
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 c
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 0
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 E
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 the
same it is difficult to perceive that during inspection of F
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 G
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.
H
46 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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
c 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-
D 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
E 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 had not disclosed his intent regarding the places
F 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
G 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
H or thereafter. However, considering the event of interception of
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 47
STATE OF MAHARASHTRA [DR. B.S, CHAUHAN, J.]
the said goods by the police and the presence and involvement A
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.
8
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 itenis had landed.
In case of conspiracy, it is difficult to find direct evidence
and thus, inference is required to be drawn from established C
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 goods. The acts that were further committed 0
by fhe 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 E
. in fact contai1n 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.
F
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 G
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 goodswere
packed in boxes, or in green coloured cloth bag that had been
tied at the mouth, and that thus, they were not aware of the H
48 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
8
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
C 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-
D 30 was not only a close associate of Tiger Memon (AA) and
acting 9s 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
E 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 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
F 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.
G
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
H Designated Court is directed to take him into custody and send
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 49
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
him to Jail to serve out the remaining sentence, if any. A
CRIMINAL APPEAL NO. 1420 OF 2007
Mohd. Rafiq @ Rafiq Madi Musa
Biyariwala ... Appellant B
Versus
State of Maharashtra . . . Respondent
AND c
CRIMINAL APPEAL NO. 1031 OF 2012
The State of Maharashtra thr. CBI ... Appellant
'.;'
Versus D
• · Mohd. Rafiq @ Rafiq Madi Musa Biy.ariwala ....
Respondent
.Criminal Appeal No. 1420 of 2007
E
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 F
of 2012 has been filed by the State against the said judgment
as A-46 stood acquitted of the charge of larger conspiracy.
101. Facts and circumstances giving rise to this appeal
are that:
G
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 ROX to be used in Bombay blast on 12.3.1993.
H
50 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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-
B 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 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.
D 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 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
E 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
F 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
G 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
H appearing on behalf of the State, opposed the appeal
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 51
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
contending that the appellant had been deeply involved, not only A
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 B
to be dismissed.
We have heard learned counsel for the parties and
perused the record.
105. Evidence against the appellant {A-46): c
(a) Confessional statement of Rafiq Madi(A-46)
(b) Confession of Asgar Yusuf Mukadam @ Munna (A-
10)
D
(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) E
(f) Confession of Dadabhai (A-17)
(g) Confession of Shahnawaz Abdul Kadar (A-29)
(h) Confession of Nasir Abdul Kader Kewal @ Nasir F
Dakhla (A-64)
(i) Confession of Altaf Ali Mustaq Ali Sayed (A-67)
Confession of Gu lam Hafiz Shaikh @ Baba (A-73) G
(k) Confession of Mubina @ Baya Moosa
Bhiwandiwala (A-96)
(I) Confession of Parvez Mohmed Parvez Zulfikar
Qureshi@ Parvez Kelewala (A-100) H
52 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (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
B 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 Memon (AA) had been involved in Hawala
business and smuggling of gold and silver from Dubai. The
C 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
D 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
E 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
F camei 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
G were also there.
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
H Dadabhai (A-17) where Shafi asked the appellant (A-46) to
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 53
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
load the articles from the tower. Appellant (A-46) alongwith A
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 B
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 c
at Sandra Talab with Maruti Van near in the evening. There the
appellant (A-46) would exchange the van with a jeep given by
Riaz. On &.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. D
The appellant (A-46) was asked to remove the jeep and park
it at the house of Meharbux.
Confession of Asgar Yusuf Mukadam @ Munna (A-10)
107 ..Asgar Yusuf Mukadam @ Munna (A-10) in his E
confessional statement has inyolved 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)
F
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).
G
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. H
54 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
B 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.
c 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
D 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
E {A-64)
113. Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) has
disclosed that in January, 1993 he had seen appellant tA-
46) waiting for co-accused and appellant (A-46) was always
I seen with Tiger Memon (AA) and used to communicate Tiger's
F messages. A-46 was also present at the Al-Husseini Building
in the intervening night between 11th/12th March, 1993 when
the ROX was filled up in the vehicles.
114. Bashir Ahmed Usman Gani Khairulla (Bashir
G Electrical) (A-13), Altaf Ali Mustaq Ali Sayed (A-67), Gulam
Hafiz Shaikh @ Baba (A-73), Gui 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
H details of his involvement in landings etc.
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 55
. STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Deposition of Usman Jan Khan (PW-2) A
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 B
evidence on record came to the conclusion that the appellant
(A-46) actively participated in the Shekhadi landing and
transportation operation of cor:itraband 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 C
he was in employment of the Memon family, ho.wever he had
been to Shekhadi landing.· it could not be accepted that the
appellant (A-46) was nor aware of illegal business of Tiger
Memon (AA) or about the nature of the contrabands smuggled
into India. The presence of the appellant (A-46) at the place D
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 a_rms and.ammunitions at resid"ence of Amjaz Abdul E
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 F
for which the co-accused were sent to Dubai.
In view of ~he 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 G
meri.t 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. H
56 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B
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
c 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
D the appeal against the order of acquittal have to be applied.
120. In view of the above, the appeal is liabte to be
dismissed.
CRIMINAL APPEAL NOS. 675-681 OF 2008
E
Suleman Mohamed Kasam Ghavte & Ors .... Appellants
Versus
State of Maharashtra thr. STF, CBI Bombay. Respondent
F
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
G 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.
H
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 57
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
I. Suleman Mohammed Kasam Ghavte (A-18): A
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
8
each count.
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 c
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.
D
(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 E
committing terrorist activities ..
(iii) That he participated in weapons' training at
Sandheri/Borghat.
F
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 G
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.
H
58 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B of ROX. Therefore, the appeal deserves to be dismissed.
126. We have heard learned counsel for the parties and
perused the record.
127. Evidence against the aQQellant {A-18):
c
(a) Confessional statement of Suleman Mohd. Kasam
Ghavte (A-18)
(b) Confessional statement of Abdul Gani lsmial Turk
(A-11)
D
(c) Confessional statement of Rusi Framroze Mulla (A-
125)
(d) Confessional Statement of Parvez Nazir Ahmed
E Shaikh (A-12)
(e) Confessional statement of Sayyed Abdul Rehman
Shaikh (A-28)
(f) Confessional statement of Liyakat Ali Habib Khan
F (A-85)
(g) Confessional statement of Abdul Gafoor Parkar (A-
17)
(h) Deposition of Babydas Vasu (PW-290)
G
(i) Deposition of Pradeep S. Dalvi (PW-293)
Q) Deposition of Abdulmunaf A. Mahimi (PW-294)
(k) Deposition of Asit Ghorai (PW-602)
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 59
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
(I) Deposition of Ajit Surve (PW-604) A
(m) Deposition of Moreshwar Thakur (PW-469)
128. Confessional Statement of Suleman Mohd.
Kasam Ghavte( A-18):
B
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 appellq~t (A-18) had c
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 D
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 E
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, he realized that Tiger Memon (AA) had also come there
in a Maruti car, and as per his instructions, they had then driven F
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 G
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 H
60 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 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),
s 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
Kalyar. where he f-iad arrived reached at noon. The appellant
(A-18) was then asked to leave the jeep at the house of Anwar.
c He reached the house of Anwar at about 4 00 P.M., left the
vehicle there and was 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
D 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
E Jurk (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
F 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
G 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 chemical that had been brought to the
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 61
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
tower on the night of 3rd February, 1993. He (A-11) alongwith A
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 lsmial B
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
ha~ met Tiger Memon (AA) there and he (A-11) and the c
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 D
Rehman Shaikh (A-28) to Bombay.
130. Confessional Statement of Rusi Framroze Mulla
{A-125):
He has corroborated the prosecution's version of events E
regarding the transportation of smuggled goods from Shekhadi
to Panvel.
Thus, in their confessional statements the aforesaid
accused persons have revealed that the appellant (A-18) had F
fully participated in the landing and transportation of smuggled
goods, which includedweapons and not just silver and gold.
131. Confessional Statement of Parvez Nazir Ahmed
Shaikh CA-12):
G
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 att~nd the office of H
62 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
B 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
c opened the boxes which contained bullets, revolvers, pistols
etc. All the contraband were shifted into false 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
D 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) C?Ver
the telephone, using the said c~ntact 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 l)ad stated
E that A-18 would come there in the morning. Consequently, the
appellant (A-18) had come there with lmtiyaz in the afternoon.
With them, A-12 had gone to Bombay, and had been dropped
off at Sandra Talab and the appellant (A-18) and lmtiyaz had
also left from there.
F
132. Confessional Statement of Sayyed Abdul
Rehman Shaikh (A-28):
His confessional statement reveals that on 5th February,
1993 at about midnight, when he (A-28) was returning from
G 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
H
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 63
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
had also been standing there alongwith Tiger Memon. Thus, he A
has corroborated the statement of Abdul Gani Ismail Turk (A-
11 ).
133. Confessional Statement of Liyakat Ali Habib
Khan (A-85):
B
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) C
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 D
Liyakat Ali Habib Khan (A-85) a sµm 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 E
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 in fact been present when 59 packets had been F
brought into Bombay.
135. Deposition of Babydas Vasu CPW-290):
He had been working in a hotel in lndraprastha at Nage
Thana, District Raigad. He has deposed that the appellant (A- G
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
'
H
64 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B • 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).
c
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 decoration, and that the said vehicle had been
O 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 ROX explosives etc. or riot.
E
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
F 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
G of the ROX samples for chemical analysis and also the receipt
of the report stating that ROX had been found therein.
140. Deposition of Moreshwar Thakur (PW-469):
He has deposed that the Test Identification Parade had
H been held in accordance with law, and has further stated that
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 65
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
;. some witnesses had identified the appellant (A-18), as the A
person who was had been involved in the landing at Shekhadi.
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 B
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 C
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 D
larger conspiracy i.e. the first charge.
142. So far as the appellant (A-18) is concern~d.
undoubtedly, there is sufficient evidence to show that he was
involved in the transportation of contraband. From the facts and E
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 Qf the contraband. Furthermore, when a person
has been transporting goods for a long period of time it is F
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 G
.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 CA-28)
143. The appellant (A-28) has been convicted on two H
66 SUPREME COURT REPORTS (2013] 16 S.C.R.
A 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
8
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
C 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 ROX explosives from Mhasla to the godown
of co-accused Noor Mohmed Haji Mohmed Khan and Mohmed
D 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
E 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.
F 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
G to be dismissed.
147. We have heard learned counsel for the parties and
perused the record.
148. Evidence against the appellant (A-28):
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 67
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
(a) Confessional statement of the appellant (A-28) A
(b) Confessional statement of Abdul Gani Ismail Turk
(Ac11)
(c) Confessional statement of Dawood Taklya
Mohammed Phanse (A-14) B
(d) Confessional statement of Sharif Parkar
@Dadabhai (A-17)
(e) Confessional statement ~f Suleman Mohammed C
Kasam .Ghavate (A-18)
(f) Confessional statement of Shakil Shahbuddin
Shaikh (A-59)
(g) Confessional statement of Shahnawaz Khan (A- o
128)
(h) Deposition of Vijay Govind More (PW.137)
(i) Deposition of Uttam K. Kale (PW.190)
E
0) Deposition of Dileep M. Katarmal (PW.284)
149. Confessional statement of Sayyed Abdul
Rehman Shaikh CA-28):
His statement was recorded by Sanjay Pandey (PW.492), F
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 G
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 Ajmer, upon the instructions of
Anwar, the appellant (A-28) had reached Sandra station with
one change of clothes. Shafi and Suleman had come there in H
68 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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 lmtiyaz and
Anwar in a blue coloured Maruti car. Anwar had instructed the
B 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). lmtiyaz 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
c there at night. At about 3.30 in the morning, Tiger Memon (AA)
had come with a truck carrying lmtiyaz, Anwar, Dadabha1 (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
D 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. In
Kolhapur, they had handed over the goods to Pradeep Chandra
Jain and had thereafter, returned to Bombay with an empty
E 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
F 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
G 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,
H and had eaten and also rested there. In the evening, they had
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 69
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
gone to the tower. It was a moon-lit night, and at the said time A
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. B
Tiger Memon had also come there. Tiger Memon 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 c
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 0
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 E
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 Sandra Talab naka and F
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 (A-28) upon the instructions of Tiger Memon (AA), had G
returned alongwith the vehicle and had handed over the said
vehicle to Gani (A-11) and returned to Sandra 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 H
·.:,\·,\.
70 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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,
B 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.
C 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,
D 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 to go alongwith the appellant (A-28) and
Suleman Mohammed Kasam Ghavte (A-18), to pay the said
E 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
F 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):
G 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.
H Tiger Memon (AA) had further instructed them to remove all the
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 71
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
empty boxes and jute cloth from there, and to burn the same. A
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 seen sitting on the side and after B
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 c
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): D
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 E
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):
F
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 packets containing powder in a vehicle. G
While they were coming back they met Tiger Memonn (AA) in
Panvel. On 8th 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-16 sat and drove upto Mahad. They reached in front H
72 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
8 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
C confessional statements have supported the case of the
prosecution, as they have stated that the appellant (A-28) had
participated in the !anding and transportation.
155. Deposition of Uttam K. Kale (PW.190) - He
o deposed that he has recorded the confession ofappellant (A-
28). On 1.6.1993, .appellant (A-28) expressed his willingness
to make a voluntary confession because of repentance and
denied being induced or coerced. He was givEln 48 hours to
re-think and he recorded his statement on 4.6.1993 as he was
E 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
F 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)
G 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
H appellant (A-28) specifically but he corroborated in general
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 73
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
particulars the confession of appellant (A-28) wherein he stated A
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- B
accused, it Was held that the same leads to the inescapable
conclusion that the appellant (A-28) had intact 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 cons~iracy to commit terrorist acts since the appellant (A- . C
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 D
conspiratorial meetings, to denote that he had been a party to
the conspiracy to c~mmit the serial bomb Blast or the larger
conspiracy i.e. the first charge.
159. So far as the appellan~ (A-28) is concerned, his E
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), lmtiyaz Yunusmiya Ghavte (A-15), Sharif Abdul Gafoor
Parkar @ Dadabhai (A-17) and Shahnawaz Khan (A-128) F
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 transported the same.
Such an act tantamounts to furthering the object of the
conspiracy to commit terrorist acts. Taking into consideration G
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.
H
74 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Ill. Sajjad Alam @Igbal 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/-,
B 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
C transportation of arms, ammuni~ion, hand grenades and
explosives like ROX 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
D charge of conspiracy, however, he has been convicted of the
second charge under Section 3(3), and has been sentenced
as referred to hereinabove.
162. Ms. Farhana Shah, learned counsel for the appellant
E 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
F 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.
G
164. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
165. Evidence against the appellant CA-61 ):
H (a) Confessional stc.tement of the appellant (A-61)
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 75
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, .J.]
(b) Confessional statement of Dawood Taklya (A-14) A
(c) · Confessional statement of Khalil Ahmed Sayed Ali
Nasir (A-42)
(d) Confessional statement of lmtiyaz Yunusmiya
Ghavte (A-15) B
(e) Confessional statement of Muzammil Umar Kadri
(A-25) •
(f) Confessional statement of Tulsiram Dhondu Surve c
(A-62)
(g) Deposition of Vijay Govind More (PW-137)
(g) - Depositions of Chandrakant Afaraz (PW-111 ),
Vyankatesh Hirba (PW-588) and Shridhar Gawade D
(PW-151).
166. Confessional Statement of Sajjad Alam @ Igbal
Abdul Hakim Nazir CA-61 ):
His own confession has been recorded by Shri K.L. E
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 F
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 G
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 bag~. The appellant (A-61), Khalil and H
76 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
8 167. 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
C {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
D 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
E rifles, pistols, bullets, hand grenades, black soap and bundles
of wires with wrnte pencils on top.
168. Confessional Statement of Khalil Ahmed Sayed
Ali Nasir tA-42):
F 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
G 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 lmtiyaz Yunusmiya
Ghavte (A-15):
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 77
STJl:TE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
He has deposed about the landing at Shekhadi in early A
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 B
brought to the Wangni Tower. The appellant (A-61) had been
present at the Tower with his Rickshaw.
170. Confessional Statement of Muzammil Umar
Kadri (A-25):
c
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) D
had come there after having dropped Dawood Taklya (A-14)
and Khalil to Shekhadi. He has further furnished otner 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 E
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): F
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.
G
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 had come to the Tower quite often. He has also
H
78 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
8
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
C 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
D Shekhadi coast, at odd hours ·of the night for the purpose of
the landing operation. Even prior to the ~aid 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
E magazines from the house of Muzammil Umar Kadri (A-25) and
had handed over the same to Tiger Memon (AA) at Lonery
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
F 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.
G 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
H appellant (A-62) has been charged for criminal conspiracy, and
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 79
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
in addition thereto, for his participation in the landing and A
transportation of arms, ammunition, hand grenades and
explosives like ROX to be used in the Bombay blast on
12.3.1993.
He has been further charged with abetting and facilitating B
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
Blast. This was done by the appellant (A-62), permitting C
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 ROX; 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 0
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 ROX explosives in his agricultural field which were E
removed subsequently by the terrorists.
He has further been charged, being a government servant,
of having failed to furnish information in relation to th~ smuggled
weapons, which he was legally bound to do and can therefore, F
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, G
he has been ordered to suffer further RI for one year under
Section .3(3) TADA, and of 6 months alongwith a fine of
Rs.5,000/- under Section 202 IPC.
178. Ms. Farhana Shah, learned counsel for the appellant H
80 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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.
c
180. We have heard learned counsel for the parties and
perused the record.
181. Evidence against the appellant (A-62):
D (a) Confessional statement of the appellant (A-62)
(b} Confession of Dawood Taklya (A-14)
(c) Confession of Sharif Abdul Gafoor Parkar (A-17)
E (d} Confession of Munna @ Mohammed Ali Khan (A-
24)
(e) Confession of Rashid Umar Alware (A-27)
F (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)
G (i) Deposition of Vijay Govind More (PW.137)
0) Deposition of Ravindra Sarant (PW.145)
(k) Deposition of Vyankatesh Hirba (PW.588)
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 81
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN. J.]
182. Confessional Statement of Tulsi Ram Dhondu A
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 . "B
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 C
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 time, Tiger Memon (AA)
and his associates had been armed with guns and pistols, and D
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 E
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 CA-61) : F
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 G
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 H
82 SUPREME COURT REPORTS (2013) 16 S.C.R.
A February 1993, and that the goods had then been brought to
the Tower and that from there, the same 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.
B
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
C 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
D 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
E 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 then all the vehicles left the Tower. Again in February
1993 when the witness was on duty, the appellant (A-62) told
F 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
G 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,
H namely, accused nos.14, 17, 28, 42, 60, 61 and 73.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 83
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
185. After due consideration of the entire evidence on A
record, the Designated Court came to the conclusion that as
the appellant (A-62), was involved in the Shekhadi landing
operati~n. 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 B
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-accused to conceal
59 bags of ROX explosives in his field. Hence he was held c
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 D
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
e)tplosives as organized by Tiger Memon (AA) and his
associates. The evidence further establishes his involvement E
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 Sect)on 202 IPC.
Being a government servant, he has intentionally omitted giving
information to the authorities about the offences committed in F
his presence, which he was legally bound to do. Thus, no
interference is required in his order of punishment.
V. Gulam ·Hafiz Shaikh @ Baba CA-73):
187. The appellant (A-73) has been charged for the G
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
t0<be used in the Bombay Blast on 12.3.1993, under Section
H
84 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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
C 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
D said weapons in his garage and for this he has been given a
sentence of RI for 8 years, alongwith a fine of Rs.10,000/- and
in default, further RI for two months. All the sentences have been
directed to run concurrently.
E 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
F 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
G 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
H perused the record.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 85
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
191. Evidence against the appellant (A-73): A
(a) Confessional Statement of Gulam Hafiz Shaikh @
Baba (A-73)
(b) Confessional statement of Dawood Taklya (A-14)
B
(c) Confessional statement of lmtiyaz Yunusmiya
Ghavte (A-15)
(d) Confessional Statement of Sharif Abdul Gafoor
Parkar @ Dadabha1 (A-17)
~
(e) Confessional statement of Mohammed Rafiq (A-
46)
(f) Deposition of Vijay Govind More (PW .137)
D
(g) Deposition of Vinod Lokhande (PW.183)
192. Confessional Statement of Gulam Hafiz Shaikh
@ Baba CA-73)
The confession of the appellant (A-73) was recorded by E
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 F
running the said garage for repairing vehicles. He knew Tiger
Memon (AA) and his associates Sunil, Shaffi, lmtiyaz, 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 G
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 silver to its destination, and
after this, he was paid a sum of Rs.2,000 to 3,000 for each
H
86 SUPREME COURT REPORTS [2013] 16 S.C.R.
A transµortation/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
8 day with the help of a large number of persons including Tiger,
Shaffi, Anwar, lmtiyaz, 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
C tempo full of smuggled goods outside his garage in lslampura.
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
D 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
E aforesaid address, and as 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.
F
193. Abdul Gani Ismail Turk (A-11), Dawood@
Dawood Taklya (A-14), lmtiyaz 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
G the landing and transportation of the smuggled goods including
arms, ammunition etc.
194. Confessional Statement of Sharif Abdul Gafoor
Parkar
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 87
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
@ Dadabhai (A-17) · A
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), ·
8
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 all the weapons and
explosives into the cavities of jeeps and tempos. The goods C
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 0
deposed that appellan~ (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 CPW.183)
E
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. . F
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 G
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 own confession wherein he has confessed
H
88 SUPREME COURT REPORTS (2013] 16 S.C.R.
A 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
B 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
C of the Blast. The court also went on to say that after this particular
incident A-73 had not been involved io 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
D 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
E 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 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.
F 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
G 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.
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 89
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
CRIMINAL APPEAL N0.600 OF 2011 A
State of Maharashtra ... Appellant
Versus
Sayed Abdul Rehman Shaikh ... Respondent B
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 C
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.
D
Hence, this appeal.
203. Heard rival submissions by counsel for both parties
and per.used the evidence on record.
E
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 (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. F
Kasam Ghavate (A-18) and Uttam Potdar (A-30) to Ajmer for
taking silver. On 5.2.1993 Suleman Mohd. Kasain 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 G
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 H
90 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
8 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 one
C 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
D 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
E Gafoor Pa.rkar (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
F 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 :-
G
?"574) Thus in light of the reasoning given aforesaid, it
will be difficult to accept submission 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
H other reason, which is also precisely absent. At the cost
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 91
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
of repetition, it will be necessary to say that even it is A
accepted that smuggling of arms, ammunition and
explosives substance, even accepted to be very heinous
merely on said count awarding i 11C1ximum punishment to
each of the accused involved in such landings de hors
considering the extent of act committed by him and B
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 C
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 D
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. E
The appeal lacks merit and is accordingly dismissed.
CRIMINAL APPEAL NO. 406 OF 2011
State of Maharashtra ... Appellant F
Versus
Gu lam Hafiz @ Baba ... Respondent
210. This appeal has been preferred against the G
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
H
92 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
furtfier RI for one month.
B
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
C activities. He was further charged under the provisions of Arms
Act for possessing/storing the weapons at his garage and
unauthorisedly transporting smuggled weapons from Shekhadi
to Bombay.
D 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.
E 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
F 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
G 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
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 93
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
trucks lo other vehicles where arms, ammunition, A
handgrenades and ROX 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 B
terrorist act. No doubt that he has received amount of Rs.1
thousand for 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 c
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 D
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
E
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 F
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 G
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 H
94 SUPREME COURT REPORTS [2013] 16 S.C.R.
A conspiracy for which the charge no.1 had been framed. In the
facts and 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
B 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.
c
CRIMINAL APPEAL NO. 408 OF 2011
State of Maharashtra ... Appellant
Versus
D
Suleman Kasam Ghavate ... Respondent
218. This appeal has been preferred agl:iinst the judgment
and order dated 2.8.2007 passed by the Special Judge of the
Designated Court under the TADA for Bombay Blast Case
E 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
F 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
G 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 terrorist activities; for transporting
the smuggled contraband, including weapons' through his
H tempo bearing no.MMP-4799 from Shekhadi to Panvel for
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v, 95
STATE OF MAHARASHTRA [DR B.S. CHAUHAN, J.]
committing terrorist acts; and further for participating in A
weapons training at Shekhadi. Out of the said charges, the
charge of participation in weapons' training at Shekhadi was
not proved.
Hence, this appeal.
B
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 c
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 AbduLGafoor Parkar (A-17). His.involvement in the crime
has also been corroborated by the deposition of Uttam M. Kale D
(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:-
E
"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 F
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 G
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 & H
96 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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
c 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
D
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 absconding
accused Dawood Ibrahim has smuggled arms,
E 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
F 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
G 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
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 97
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
acquiring the knowledge had not taken any steps revealing A
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 B
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 c
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 D
of conspiracy to commit the serial bomb blast etc."
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 E
the impugned judgment. The appeal lacks merit and is
accordingly dismissed.
CRIMINAL APPEAL NO. 1034 OF 2012
State of Maharashtra .. Appellant F
Versus
Tulsi Ram Dondu Surve ... Respondent
224. This appeal has been preferred against the judgment G
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
H
98 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 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
B 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.
c
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,
D 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.
E
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
F 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
G learned counsel for the parties and perused the record.
228. Evidence against respondent:
(a) Confessional statement of respondent (A-62)
H (b) Confessional statement of Dawood Phanse (A-14)
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 99
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
(c) Confessional statement of Sharif Abdul Gafoor A
Parkar (A-17)
(d) Deposition of Usman (PW.2)
229. Confessional statement of respondent Tulsi
Ram Dondu Surve (A-62) : B
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, c
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 D
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
E
disclosed that one tempo, jeep and Maruti car arrived at the
Wangni Tower. Tiger Memon (AA) and his 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. F
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 G
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
H
100 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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-
B 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 each of them i.e. accused, Harish Chandra
C Surve (PW.108) ar.id Vijay Govind More (PW.137).
230. Confessional statement of Dawood Phanse (A-
W:
The accused Dawood Phanse (A-14) did not name Tulsi
D 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).
E 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
F 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
G & 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
H conclusion of A-62 also being involved in Shekadi landing
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 101
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
operation as denoted by said material and as such having A
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
commission of offences for which charge was framed at
head 3rdly i.e. offence u/s.202 of IPC on count of himself B
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 C
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 D
Special Judge so far as the respondent is concerned. The
appeal lacks merit and is dismissed accordingly.
CRIMINAL APPEAL NO. 416 OF 2011
State of Maharashtra Through CBI ... Appellant E
Versus
Sujjad Alam . . . Respondent
235. This appeal has been preferred against the judgment F
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, G
Respondent (A-61) has been acquitted of the general charge
of conspiracy.
Hence, this appeal.
H
102 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 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.
s Therefore, he ought to have been convicted for the charge of
general conspiracy and, thus, the appeal deserves to be
allowed.
237. On the contrary, Ms. Farhana Shah, learned counsel
appearing for the respondent, has submitted that the respondent
C (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.
D 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 materna.I
uncle Khalil Ali Nazir had been involv:ed in landing of silver for
Tiger Memon (AA) at Shekhadi Beach. Accused (A-61) used
E 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
F 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. When they opened the gunny bags
G 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,
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 103
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
ammunition in the auto rickshaw of Muzammil at the residence A
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 B
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 c
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, D
Dawood, Khalil, Abdul Aziz and accused (A-61) left the Tower
ill the auto rickshaw. It was in the 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
E
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. F
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 G
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-
H
104 SUPREME COURT REPORTS [2013] 16 S.C.R.
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 which were loaded
B 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
C 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-
D 42) - So far as ac.cused (A-61) is concerned, A-42 in his
confessional statement disclosed that on 3rd March, 1993 he
and Dawood Taki ya (A-14) had reached M hasla in the
autorickshaw of accused (A-61 ). Then· the acccused (A-61) was
sent to village Borli with autorickshaw to bring the truck and
E 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
F 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 sent accused (A-61) to the tower just before the
jeep came and accused (A-25) also went to the tower alongwith
G 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
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 105
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
had been recovered later on by the police from his house. A
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 B
(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:
c·
"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."
D
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. E
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 F
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 G
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).
H
106 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 246. The scope and ambit of Section 3(3) TADA is very
wide. Punishment for the off~nces under section 3(3) varies
from 5 years to life imprisonment depending on the gravity of
the overt act done by particular accused. Each of them cannot
be held to be at par, as one of them may be instrumental in
B 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
c 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
D . 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
pard only for that.
E 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 th~ learned Special Judge does not
require interference. The appeal lacks merit and is accordingly
dismissed.
F
CRIMINAL APPEAL NO. 512 OF 2008
Abdulla Ibrahim Surti & Ors .... Appellants
Versus
G
State of Maharashtra thr. CBl-STF, Bombay .. Respondent
AND
CRIMINAL APPEAL NO. 401 OF 2011
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 107
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
State of Maharashtra .... Appellant A
Versus
Faki Ali Faki Ahmed & Ors ..... Respondents
AND
8
CRIMINAL APPEAL NO. 595 OF 2011
The State of Maharashtra .... Appellant
Versus
c
Abdullah lbrahimSurti .... 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 D-
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.
E
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 CA-66): F
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 G
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
H
108 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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 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
C of payment of fine.
Hence, this appeal.
252. Ms. Farhana Shah, learned counsel appearing for the
D 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
E 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
F 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
G Kandalwada Creek with the 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.
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 109
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
255. Evidence against the appellant (A-66): A
(a) Confessional statement of Faki Ahmed Subedar
(A-74)
(b) Confessional statement of Janardhan Pandurang
Gambas (A-81) B
(c) Confessional statement of Jamir Sayyed Ismail
Kadri (A-133)
(d) Deposition of Shridhar Shantaram Borkar (PW-88)
c
(e) Deposition of Dattaraybhiku Udarkar (PW-89)
(f) Deposition of Anil Ramchandra Baswat (PW-90)
(g) Deposition of Janu Hajari (PW-378) D
(h) Deposition of Vyankatesh Hirba Rane (PW-588)
256. Confessional statement of Faki Ahmed Subedar
(A-74):
E
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
F
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
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 G
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-
H
110 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 81), and Jamir Sayyed Ismail Kadri (A-133) (dead) were also
present.
257. Confessional statement of Janardhan
Pandurang Gambas (A-81 ):
B 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,
C 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
D contacted by Uttam Potdar (A-30) and he went for landing
alongwith Firoz Khan, Mechanic Chacha (A-136) and Shabbir
Kadri. After the 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-
E 136) said that the boxes contained glass wares so they had to
be carried carefully. After the Bombay Blast, he (A-81) w~nt 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
F 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
G (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
H Faki Ahmed (A-74) and he (A-81) went to the boat which was
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 111
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
tied near the house of Shabbir, taking 3 boxes, and 6 bags, A
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
bullets in the bags. Subsequently, he was informed that the
said goods have properly been kept in the creek water. B
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, C
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 wer~ kept in the house of his (A- D
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. Janarda.n Pandurang (A-
81), Ali Mlan Faki (A-74), Abdulla Surti (A-66), Shabbir and E
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 F
to be thrown in the water. As per the instruction, he brought
the. boat near the village and Shabbir, Flroz, Abu Bakar,
Janardhan Gambas (A-81), Ali Mian Faki (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- . G
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),
H
112 SUPREME COURT REPORTS [2013] 16 S.C.R.
A participated in burying the arms bags and sacks in the mango
grove of Subedar.
259. Deposition of Shridhar Shantaram Borkar (PW-
88.l.;.
B
He was the panch witness to the disclosure statement
made by Faki Ali Faki Ahmed Subedar (A-74) on 7.4.1993,
arid also the recovery of weapons from the mango grove.
260. o·eposition of Dattaraybhiku Udarkar (PW-89):
c
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.
D 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 three wooden
E boxes and six military colour bags were found from whic~
weapons and ammunition were recovered.
262. Deposition of Janu Vetkholi (PW-378) :
His deposition revealed that he was earlier an accused but
F 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).
G 263. Deposition of Vyankatesh Hirba Rane CPW-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
H
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 113
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Subedar (A-74) led the police party to mango grove from where A
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. B
264. The learned Designated Court after appreciating the
evidence came to the conclusion that the involvement of the
appellant (A-66) in commission of similar acts was established
by the material contained in confession of the appellants (A- C
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 D
appellant (A-66) lacks merit and is accordingly dismissed.
II. Faki Ali Faki Ahmed Subedar CA-74) :
266. Appellant (A-74) was further charged for concealing E
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. F
He was further charged with disposal of the said arms
and ammunitiqn alongwith other co-accused dumping the same
in Kandalgaon creek.
G
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.
267. He had been acquitted on the first charge of
conspiracy. However, he had been convicted under Sections H
114 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
B
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).
c 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)
D
(b) Confessional statement of Janardhan Pandurang
Gambas (A-81)
(c) Confessional statement of Jamir Sayyed Ismail
E Kadri (A-133)
(d) Deposition of Shridhar Shantaram Borkar (PW-88)
(e) Deposition of Dattatray Udharkar (PW-89)
F (f) Deposition of Anil Baswat (PW-90)
(g) Deposition of Janu Hajari (PW-378)
(i) Deposition of Rajan Dhoble (PW-585)
G Q) Deposition of Pratap Dighavkar (PW-586)
271. Confessional Statement of Faki Ali Faki Ahmed
Subedar (A-74):
He disclosed that he was a neighbour of Sayed Ismail
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 115
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Kadri (A-105) and his sons Shabir (AA) and Jamir (A-133) A
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 B
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 c
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,
0
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 pit dug in the mango grove of Abdul
Razak Subedar who was staying in Nairobi at that time and the E
&ame 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 G
and ammunition.
272. Confessional statement of Janardhan
Pandurang Gambas
H
116 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (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-
B 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 Dig hi. Thereafter, Gambas (A-81 ), Jamir Sayyed
Ismail Kadri (A-133), Abdulla Ibrahim Surti (A-66) and Faki Ali
Faki Ahmed Subedar (A-74) took out three boxes and six
packets from the house of A-74 and placed them in a boat with
C 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 qontained bullets and Shabir had
informed Gambas (A-81) that the goods had been kept in
creek water. ·
D
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
E hiding them in creek water after the Blast.
273. Confessional statement of Jamir Savved Ismail
Kadri (A-133):
He had participated in the landing at Dighi and he knew
F 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
G 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 K~dri (A-133) to the
house of Faki Ali Faki Ahmed Subedar (A-74), where Abdulla
H Ibrahim Surti (A-66) and Gambas (A-81) were already present.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 117
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
They buried the bags containing weapons in the mango grove A
at a little distance from his house. Jamir Sawed 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.
B
274. Deposition of Shridhar Shanta Ram Borkar CPW-
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 C
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. D
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 E
(A-74) and VH Rane (PW.588) went to the place at 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 F
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 G
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
H
118 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 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
B 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.
In his cross-examination he has admitted that he had
C 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
D 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
E 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
F 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
G 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 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
H swimmers went in a fishing boat around Kandalwada and they
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 119
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
waited till the low tide was complete. As the water recedes the A
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 B
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. c
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 Kaai dated 13.4.1993. He
identified the green colour bag recovered from the creek.
276. De-position of Anil Baswat (PW-90): D
He revealed that he was a panch witness of recovery on
8.4.1993. He went to the creek alongwith Mhasla and Bombay
police and one Janu Vethkoli (PW.378) was also in the boat.
There they found three wooden boxes and 6 military cloth boxes E
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
F
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 G
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 H
120 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B were present alongwith Shabbir transported the things
alongwith them. Shabir kept the same in the boat. The 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
c 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.
D 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
E 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
F 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):
G
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 S.P. Raigad requesting him to record his
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 121
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
confession and he was produced for recording the confession A
on 7.5.1993 and it was so recorded.
280. With regard to Faki Ali Fr',: 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- B
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 . C
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
D
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.
E
Ill. 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 F
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 G
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 H
122 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (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
8 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
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.
C 284. Ms. Farhana Shah, learned counsel appearing for the
appellant (A-81) and Shri Mukul Gupta, learned sen_ior counsel
appearing for the State have raised the same contentions which
have been raised in respect of Abdulla Ibrahim Surti (A-66).
D 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)
E
(b) Confessional statement of Faki Ali Faki Ahmed
Subedar (A-74)
(c) Confessional statement of Jamir Sayyed Ismail
Kadri (A-133)
F
(d) Confessional statement of Mechanic Chacha (A-
136)
(e) Deposition of Tikaram Shrawan Bhal (PW-191)
G 287. Confessional Statement of Janardhan
Pandurang Garn bas CA-81 ):
In his own confession he has admitted that he was a
fisherman and used to help Shabir and Jamir Kadri (A-133) in
, H smuggling. He participated in landing on 9.1.1993 at Dighi Jetty
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 1·23
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
wherein arms and ammunition had been smuggled into the A
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 B
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 c
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 D
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 E
by Abdullah Ibrahim Surti (A-66) and Jamir Sayyed Ismail Kadri
(A-133).
289. Confessional Statement of Jamir Savved Ismail
Kadri (A-133):
F
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.
G
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 H
124 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (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
B (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 CA·
c 136):
He does not name the present appellant (A-81) directly but
disclosed that it was on the instructions of co-accused that
weapons were hidden by Shabir. There are further depositions
of Janu Vethkoli (PW.378), T.S. Bhal (PW.191 ), Shridhar
O 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):
E 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
F 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
G 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
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 125
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
(PW.191 ), S.P., Raigad has deposed that the appellant (A-81) A
was produced by Ashok 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) B
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 c
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 D
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
lia.ble for offence under Section 3(3) TADA on said count i.e. 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.
However it was held that the appellant (A-81) after having F
·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 G
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 H
126 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 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 @ Muiiu Ismail Ibrahim Kadri CA-104):
B 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
C possessing and concealing five plastic boxes containing
initiating devices of hand grenades smuggled into India for
committing terrorist acts, thus charged under Section 3(3)
TADA. He was lastly charged with contravening the provisions
of Arms Act and Rules and acquiring the possession of fire
D 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
E conspiracy. However, he was convicted under Section 3(3)
TADA and sentenced to suffer 5 years RI and a fine of
0
Rs.10,000/- and a suitable R.I. fo r default of payment of fine.
297. Ms. Farhana Shah, learned counsel appearing for the
appellant (A-104) has submitted that the appellant has not
F 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, th.e appellant has already
served 3 years of the sentence that was awarded to him. Thus,
the appeal should be allowed.
G
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 material was kept implicates him in the present
H case. Therefore, the appeal deserves to be dismissed.
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 127
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
299. We have considered the .rival submissions made by A
learned counsel for the parties and perused the record.
300. Evidence against the appellant (A-104):
(a) Deposition of Laxman Nakti (PW-91)
B
(b) Deposition of Vasant Jadhav (PW-484)
(b) Deposition of Dayanand Dhome (PW-573)
(c) Qeposition of Pratap Dighavkar (PW-586)
c
301. Deposition of Laxman Nakti (PW-91 ):
He proved t~e 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 D
further deposed that the police party whom the said witness
accompanied y.ias 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 !eaves. The mouth of the said E
bag-was closed by tying the same by mean!) of a string. It was
a green colour plastic bag and 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): F
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 G
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 H
128 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B information regarding explosives which were recovered in
presence of the panch witnesses,. It was recover~d 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.
c ~04. Deposition of Pratap Dighavkar CPW-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
D 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
E 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 conclu!>ion of
him being in possession of contraband material and liable for
F 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
G ~stablish 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.
306. We find no cogent evidence on record requiring
H interference with the judgment of the learned Designated Court.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 129
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
The appeal with reference to the appellant (A-104) lacks merit A
and is accordingly dismissed.
V. Srikrishna Yeshwant Pashilkar (A-110):
307. Appellant (A-110) was further charged for allowing the
8
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 c
Phata. He was f~rther charged with failing to seize the aforesaid
motor tr1,Jck 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 D
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 E
than 3 years.
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 F
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- G
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. H
130 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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):
8 (a) Confessional statement of Uttam Potdar (A-30)
(b) Deposition of Dilip Pansare (PW-97)
(c) Deposition of other witnesses
c 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 were intercepted while smuggling the contraband, five
D 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-
E 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
F wooden boxes were al~o in the truck.
314. Deposition of Dilip Pansare CPW-97):
In his deposition he revealed that he was working as a
mechanic in the State Road Transport Corporation and was a
G 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
H trucks one of them was being driven by him. They were
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 131
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
intercepted by the police of Shrivardhan Police Station at A
Gondghar Phata junction. He (PW 97) stopped the vehicle on
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 B
of the first truck. Othe( 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) foi about half an hour. Gurav, the C
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- D
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 E
(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 F
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. G
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 H
132 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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)
B 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
C with reference to appellant (A-110) lacks merit and is
accordingly dismissed.
318. So far as the serious objection that when tbe
contraband material, arms and ammunition recovered at the
D 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).
E 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
F 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
G 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.
H More so, Ms. Farhana Shah, learned counsel for the
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 133
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J)
appellants could not satisfy the court as under what A
circumstances 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. B
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 C
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 D
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
E
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. F
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).
G
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. H
134 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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, Greater Bombay, in the Bombay Blast
8
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
C 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.
0 323. 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
E 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
F 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.
G B. After conclusion of the trial, the learned Designated
Court held the appellants guilty and awarded punishment as
referred to hereinabove.
Hence, these appeals.
H 324. Shri P.K. Dey, learned counsel appearing for the
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 135
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
appellants, has submitted that sufficient evidence on record A
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, intact, they have spoken
of the smuggling of silver. Therefore, the question of framing B
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. c
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, D
as the same was not in compliance with the requirements of
sections 15(3)(b) and 15(5) of the TADA Rules,
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 E
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 F
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. G
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
H
136 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
B
326. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
327. Evidence against the appellants:
c (a) Confessional statement of Uttain Shantaram
Potdar (A-30)
(b). Confessional statements of Dawood Taklya (A-14)
and Dadabhai (A-17)
D (c) Confessional statement of Jaywant Keshav Gurav
(A-82)
(d) Confessional statement of Salim Kutta (A-134)
(e) Confessional statement of Mechanic Chacha (A-
E 136)
(n Deposition of Dilip Bhiku Pansare (PW-97)
(g) Deposition of Yeshwant Kadam (PW-109)
F (h) Deposition of Pramod Mudbhatkal (PW-681)
(i) Deposition of other witnesses
328. Uttam Shantaram Potdar (A-30), Jaywant Keshav
G 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
H the appellants. This police party further allowed the goods to
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 137
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
go past, without proper checking after negotiating a bribe to A
the tune of Rs.7 lakhs. As the smugglers did not have said
amount of Rs.7 lakhs with them at the said time, they had given
five silver bricks that had been sm• ·~died in the landing; to the
police as security and subsequently, upon making them
payment of the said amo"unt to the officials, the silver bricks had B
been returned to die 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 C
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 D
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. E
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 cash, Mechanic Chacha (A-136) had ·F
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.
Confessional statement of Jayawant Keshav Gurav G
CA-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 H
138 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
B
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
C 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).
D
Deposition of Dilip Bhiku Pansare (PW-97):
333. In his deposition, he has revealed that he had
participated in the !anding with Uttam Potdar (A-30). He had
been driving the truck carrying the smuggled goods on
E 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
F (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
G 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
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 139
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Rs.30,000/- on 24.4.1993 in presence of two witnesses, A
namely, Yeshwant Kadam (PW-109) and Vinod Chavan (PW-
590), who had been brought by his father-in-law, and in this
respect, a panchnama (Ext. 565) w;;ic; prepared.
As regards the same, Yeshwant Kadam (PW-109) has
8
deposed that he had been unable t6 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- C
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.
D
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 E
on patr6\1ing 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 appellants (A-70 and A- F
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 lPW-681): G
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 H
140 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Mu·dbhatkal (PW-681) had arrested Mechanic Cha cha (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 reque~ted him (PW-684) to record his confessional
B 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
C 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 clear that appellant (A-99)
ha,d been driving the said police jeep when the party was
D 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.
E 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
F 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.
G 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).
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 141
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
339. We find no cogent reason to interfere with the A
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 B
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 c
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 D
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. Moreqver, the fact that that they had asked for
enhancement of the ~mount of bribe to be paid to the police E
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. Furthermore, the
Customs Inspector had issued a warning to all authorities,
stating that he had definite information that arms and
F
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 G
appearing for the respondents, has submiUed that since the
respondents had been subordinate to the actual recipients of
the bribes, which had beentaken 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 H
142 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 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
B 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.
C 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
D 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
E 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
F 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
G respondents had been members of the police party, and were
hence responsible for allowing the further transportation of the
smuggled contraband 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
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 143
STATE OF MAHARASHTRA [DR. 8.S. CHAUHAN, J.]
been permitted to be transported any further. Therefore, in his A
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.
B
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 C
presumption of innocence of the accused and further that the
trial Court's acqui~tal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is
possi.ble should be avoided, unless there are good reasons for
interference. (Vide: State of Rajasthan v. Darshan Singh @
Darshan Lal, AIR 201i SC 1973). D
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 E
accordingly.
CRIMINAL APPEAL NO. 1630 OF 2007
Liyakat Ali Habib Khan ... Appellant.
F
Versus
State of Maharashtra .... Respondent
AND
G
CRIM,INAL APPEAL NO. 1029 OF 2012
State of Maharashtra ... Appellant
Versus
H
144 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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
C 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 of two months. Both the sentences were
directed to run concurrently.
D
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
E 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 ROX explosives in his godown at M.l.D.C. Thane Belapur,
which had been smuggled into India for committing terrorist acts.
F The appellant is also charged for aiding and abetting in carrying
and transportation of ROX explosives from his godown. He was
further charged under Section 5 TADA for possessing th~ said
explosives unauthorisedly in Greater Bombay, Thane district.
He was also charged under Section 6 TADA for contravening
G 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 ROX explosives. Lastly,
he had been charged under Section 4 read with Section 6 of
the Explosives Substances Act, 1908 for having possession of
H the 80 cartons of ROX explosives stored in his godown.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 145
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
8. After the conclusion of the trial and appreciating the A
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.
B
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 C
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 arw stage about the contents of the cartons and did not D
become aware of the same until the end. Therefore, the
qonviction is liable to be set aside.
350. Per contra, Shri Mukul Gupta, learned senior counsel
appearing for the respondent has vehemently opposed the
E
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 the cartons contained explosives. Thus, the facts
and circumstances of the case do not warrant any interference
F
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: G
(a) Confessional statement of the appellant Liyakat Ali
Habib Khan (A-85)
(b) Confessional statement of Murad Ibrahim Khan (A-
130) H
146 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (c) Confessional statement of Suleman Mohd. Kasam
Ghavate (A-18)
353. Confessional statement of the appellant Liyakat
Ali Habib Khan (A-85):
B 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.1.0.C.", Thane, Belapur Road,
in which construction took place and appellant had been
working therein. He was closely acquainted with the other co-
C 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 months in the godown at
Thane. They were permitted by his father to store the goods.
D 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 lzaz and other co-
accused on the way. He was directed by his uncle to keep
E 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
F 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
G 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
H explosives.
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 147
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
In the beginning of March 1993, Tiger Memon came and A
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 B
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 lliyas was aware that the goods C
concealed in their godown were explosives and just after the
Bombay Blast on 12.3.1993 lliyas had driven Yakoob Khan to
airporton 17.3.1993.
354. Retraction: D
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 E
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.
355. Confessional statement of Murad Ibrahim Khan F
CA-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 G
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 H
148 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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-
B 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.
356. Confessional statement of Suleman Mohd.
C 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.
D
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
E 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
F 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
G 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.
(ii) After being shown the relevant material he had become
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 149
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
aware of the nature of contraband material. (iii) Still he did A
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 8
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 C
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.
D
(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 E
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 F
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 G
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. ROX material in
the godown of his father at Mumbra.
H
150 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (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
B in 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
C 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
D dated 8.12.1993, the learned Magistrate made the
endorsement to the effect that "appellant was suffer.ing 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
E has deteriorated.
The appeal is accordingly dismissed:
The appellant has already served 3 years and 4 montlls.
F 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
G of conspiracy. Hence, the State has preferred this appeal.
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
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 151
STATE OF MAHARASHTRA [OR. B.S. CHAUHAN, J.]
by the Designated Court. He is a nephew of Yakoob Yeda A
(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. B
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 r_eason that the godown where the arms,
ammunition and explosives had been stored, did not belong to C
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 D
is called for.
363. Heard learned counsel for the parties and perused
the re'?ord. Confessional statements of A-18, A-85 and A-130
have already been referred to and appreciated in the connected E
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 F
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. G
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 H
152 SUPREME COURT REPORTS [201.3] 16 S.C.R.
A 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."
B 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, cu;cordingly, dismissed.
c
CRIMINAL APPEAL NO. 207 OF 2008
Mujib Sharif Parkar ... Appellant
Versus
D
State of Maharashtra ... Respondent
AND
CRIMINAL APPEAL NO. 415 OF 2011
E
State of Maharashtra thr.C.B.I. ... Ap~ellant
Versus
Mujib Sharif Parkar ... Respondent
F
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
G 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.
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 153
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
368. Facts and circumstances giving rise to this appeal A
are that:
A. In addition to the main charr~ of conspiracy, the
appellant was charged in connection with the purchase of gunny
bags for transportation of contraband landed at Shekhadi, for 8
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 C
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. D
Hence, this appeal.
369. Ms. Farhana Shah, learned counsel for the appellant
emphasised the fact that the identity of the appellan,t could riot
be discerned and this should create doubt in the mind of the E
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 F
which were later used to transport the contraband items in the
territory of 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 G
perused the record.
372. Evidence against the appellant (A-131 ):
(a) Confessional statement of Sayyad Abdul Rehman
Shaikh (A-28) H
154 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (b) Deposition of Usman Jan Khan (PW.2)
(c) Deposition of Dileep Madhavji Katarmal (PW.284)
(d) Deposition of Jalil Sharif Kirkire (PW.285)
B (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
C 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.
D 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 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
E 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
F 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
G - 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
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 155
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
like Nasir Dakhla (A-64), Manoj Kumar @ Munna Bhavarlal A
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 aiving 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 B
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 C
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 D
(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
~istols. 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 E
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). After the goods were unloaded and F
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 G
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 H
156 SUPREME COURT REPORTS [2013] 16 S.C.R.
A the wires were detonators. Tiger then instructed them to put the
rifles arid 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
8 (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
C two persons one old and one young who had come to his
agency/shop for 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
D 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
E 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) -
F 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.
G 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
H the respondent (A-131) was involved in landing and was
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 157
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
present in arms training at Sandheri and was also involved in A
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 B
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 C
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 thatthe 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, D
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 E
Section 3(3) TADA is justified. The appeal lacks merit and is
. accordingly dismissed.
Criminal Appeal NO. 415 of 2011
381. This appeal has been preferred against the same F
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 G
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 H
158 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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 ROX in India at Shekhadi, Dist. Raigarh and
by purchasing empty gunny bags in the name of fictitious firms.
B 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
C 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 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
D (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
E 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.
F
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
G 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
H of conspiracy to A-131. Therefore, he was given the benefit of
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 159
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
doubt regarding the said charge and was· held not guilty of A
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 eyen Usman (PW.2) who had involved
respondent (A-131) in many activities did not mention his name B
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. C
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 D
corroboration in view of the law laid down by this Court in Mrinal
Oas & 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.
E
CRIMINAL APPEAL NO. 2173 of 2010
Mohammed Sultan Sayyed ..... Appellant
Versus
F
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 G
been convicted under Section 3(3) TADA.
390. Facts and circumstances giving rise to this appeal
are that:
H
160 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
8 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
C and his associates to carry out their smuggling activities upon
the payment of a sum of over 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
D 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
E 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
F 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 .
. G However, he was not found guilty of any other offences.
Hence, this appeal.
391. Shri Mushtaq Ahmad, learned counsel appearing on
behalf of the appellant (A-90), has submitted that there is no
..H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 161
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
legal evidence on the basis of which the conviction of the A
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 B
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 c
conviction is lia~le to be set aside, and the present appeal
deseNes 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 D
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 E
learned counsel for the parties and perused the record.
394. Evidence against the appellant CA-90): ·
(a) Confessional statement of the appellant (A-90)
F
(b) Confessional statement of Dawood @ Dawood
Taklya Mohammed Phanse@ Phanasmiyan (A-14)
(c) Confessional statement of Uttam Shantaram
Potdar (A-30)
G
(d) Confessional statement of Mohmed Salim Mira
Moiddin Shaikh @ Salim Kutta (A-134)
(e) Confessional statement of Mohmed Kasam
Lajpuria @ Mechanic Chacha (A-136) H
162 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (f) Confessional statement of Sharif Abdul Gafoor
Parkar @ Dadabhai (A-17)
(g) Deposition of Sitaram Maruti P.adwal (PW-146)
(h) Deposition of Madhukar Krishna Dhandure (PW-
B 153)
(i) Deposition of Yashwant Balu Lotale (PW-154)
0) Deposition of Shivkumar Ramanand Bhardwaj
(PW-470)
c
395. Confessional Statement of the appellant CA-90):
His own confessional statement was recorded on
29.4.1993 (First Part) and 30.4.1993 (Second Part) by Shri C.
D Prabhakar, Superintendent of Police, Thane Ru~al 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
E Customs (A-102) on 6.1.1993 to Hotel Persian Darbar,
alongwith Shri Lotle (PW.154), where 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
F 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
G 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
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 163
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
for the one on 9.1.1993. For the said landings, R.K. Singh (A- 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 B
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 Creek.
Subsequently, Dadabhai (A-17) informed him (A-102) that the
work of the landing had been delayed as a dead body had been c
found at the said place. The appellant (A-90) had accompanied
R.K. Singh (A-102) and lnsp~ctor 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- D
14) met R.K. Singb,(A-102) and handed over to him a plastic
bag containing R(3 lakhs. Uttam Potdar (A-30) had also come
to the rest h9use 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 E
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 lnamdar.
F
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 G
his house on 14/15.2.1993 alongwith Inspector Padwal.
397. Confessional statement of Uttam Shanta ram
Potdar (A-30) :
He has revealed that he had been paying bribes to the H
164 SUPREME COURT REPORTS (2013] 16 S.C.R.
A 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
B 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
c 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
D 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
E to be paid for each landing as a bribe to them alongwith the
customs officers. It was 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
F 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
G (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
H participated in the landing operation.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 165
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
399. Confessional statement of Mohmed Kasam A
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 B
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 their departure, he came to know from Mohd.
Dossa, that in the aforementioned meeting, an amount of Rs.7- C
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 D
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): E
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
F
(A-102) over the phone, to tell him that he was an informant and
~hat 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) G
engaged in certain discussion, and 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-
H
166 SUPREME COURT REPORTS [2013] 16 S.C.R.
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
B 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
C held at the said hotel, and there were talks held with Mohd. Bhai
for about half an hour.
402. Deposition of Shivkumar Ramanand Bhardwaj
CPW-470):
D 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
E 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 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
F to all the Superintendents working under his jurisdiction.
403. In the statement made under SectiJn 313 of Code
of Criminal Procedure, 1973 (hereinafter referred to as the
'Cr.P.C.'), the appellant (A-90) has completely denied the
G recording of his confessional statement by Chaturvedula Shstri
(PW-186), while answering the questions put to him. The
appell'ant (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
H in great detail, appreciating it alongwith the cross-examination
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 167
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
of Chaturvedula Shstri (PW-186). The appellant (A-90) has A
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 B
torturing the appellant (A-90).
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 C
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 D
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). E
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 F
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 Abdul Gafoor Parkar @ Dadabhai G
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.
H
168 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
B 406. We find no reason to interfere with the judgment of
the Designated Court. The appeal is dismissed accordingly.
CRIMINAL APPEAL NO. 1632 of 2007
Ranjit Kumar Singh ..... Appellant
c Versus
State of Maharashtra thr. CBI ... Respondent
407. This appeal has been preferred against the
D 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
E 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:
F
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
G 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 accused Mohd. Ahmed Dossa (AA), Mohmed Jaipuria
and Mohmed Kasam Lajpuria @ Mechanic Chacha (A-136)
H were also present and had agreed to allow Mohd. Ahmed
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 169
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
Dossa (AA) and his associates to continue with their smuggling A
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
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 C
information and knowledge, that arms, ammunition and
explosives were being smuggled into the country. Hence, he
has been cha·rged under Section 3(3) TADA, and was found
guilty vide judgments and orders dated 18.9.2006 and
19.7.2007. D
Hence, this appeal.
409. Mr. Sushil Kumar, learned senior counsel appearing
for the appellant (A-102), has submitted that the appellant (A-
E
102) has 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
F
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 G
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 H
170 SUPREME COURT REPORTS [2013] 16 S.C.R.
A @ 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
B 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 convicted under Section 3(3) TADA and awarded a
sentence of 9 years alongwith a fine of Rs.3 lakhs. The appellant
c 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
D 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).
E 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
F 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-4 70) had received definite
G information through Intelligence that arms and ammunition
would be smuggled into India alongwith 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
H the contraband silver and gold. Undoubtedly, the appellant (A-
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v.. 171
STATE OF MAHARASHTRA [DR. BS. CHAUHAN, J.]
102) regularly informed the Collector about the progress made A
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. B
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 C
not wis~ 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) : o
(a) Confessional statement of the appellant (A-102)
(b) Confessional Statement of Uttam Shantaram
Potdar (A-30)
E
(c) Confessional Statement of Jaywant Keshav Gurav
(A-82)
(d} Confessional statement of Mohd. Sultan Sayyed (A-
90):
F
(e) Confessional Statement of Mohd. Salim Mira
Moiddin Shaikh (A-134)
· (f) Confessional Statement of Mohmed Kasam
Lajpuria (A-136) G
(g) Confessional Statement of Dadabhai Abdul Gafoor
Parkar (A-17)
(h) Deposition of Shivkumar Bhardwaj (PW-470)
H
172 SUPREME COURT REPORTS [2013] 16 S.C.R.
A (i) Deposition of Yashwant Balu Lota le (PW-154)
0) Deposition of Sitaram Maruti Padwal (PW-146)
(k) Deposition of Madhukar Krishna Dhandure (PW-
153)
B
(I) Deposition of Tikaram Shrawan Bhal (PW-191)
414. Confessional Statement of Uttam Shantaram
Potdar (A-30):
c 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,
D 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).
E
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
F 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
G 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.
H
AHMED SHAH .KHAN DURRANI @ A.S. MUBARAK v. 173
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
On 3.12.1992, the accused (A-102) came to Mhasia. The A
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- B
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/ C
- to the 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 D
Mohd. Dossa's landing was going to take place and directed
him (A-82) to help him.
416. Confessional statement of Mohd. Sultan Sawed
CA-90):
E
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
F
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 G
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).
On 6.1.1993 he (A-90), alongwith the appellant (A-102), H
174 SUPREME COURT REPORTS (2013) 16 S.C.R.
A Customs Superintendent Lotale (PW-154) reached Hotel
Persian Darbar, where three persons including Mohammed
Dossa (AA) were already pr.esent. 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
B 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)
C 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
D 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
E Phanse's son (A-55) had paid the appellant (A-102), Rs.3.5
lacs. 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
F 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
G 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)
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 175
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
and Feroz informed the appellant (A-102) of the said landing A
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 B
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). C
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. D
420. Confessional Statement of Dadabhai Abdul
Gafoor (A-17):
In his confession, A-17 disclosed that he used to facilitate E
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 F
Memon (M) and asked him to meet Tiger Memon at Hotel Big
Splash. The appellant (A-102) sent Superintendent Sayyed (A-
90) who negotiated with Tiger (M), and 'Tiger told him that he
had some work that day.
421. Deposition of Shivkumar Bhardwaj (PW-470): G
In his statement, he has revealed that he had received
information from the Directorate of Revenue Intelligence (ORI)
that a big quantity of automatic weapons would be smuggled
into India by the ISi alongwith contraband, gold and silver within H
176 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 15-30 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
B 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,
c 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
srnugglers so as to win their confidence and dupe them into
giving them such information. The witness further revealed that
0
the appellant (A-102) and Sh. S.N. Thapa (dead), had kept him
informed about the steps taken in this regard.
422. Deposition of Yashwant Balu Lotale (PW-154):
E 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 M.S. Sayyed (A-90) on 6.1.1993 after leaving the
Alibagh office and that they had carried out the work of collecting
F 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
G 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,
H three parties were formed for patrolling and in one such party,
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 177
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
he (PW-146) was also included. The appellant (A-102), Sayyed A
(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 B
House, where A-102 met a person sent by Dawood Phanse
(A-14).
424. Deposition of Madhukar Krishna Dhandure (PW-
153): '
c
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 o
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 E
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 F
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.
G
- Arms and ammunition sent by Mustafa Majnu landed at
Dighi Jetty on 9.1.1993.
- Appellant (A-102) received illegal gratification from the
H
178 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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.
B - Appellant had received the information from Sh.
Bhardwaj, Collector of Custom on 25.1.1993 that LS.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
C 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:
D "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
E 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
F 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-113 though not being directly
G 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
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 179
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
involvement in commission of act and considering the A
further acts committed byA-90, 82 and 113 regarding
Shekadi landing and so a/so to some extent by-A-102
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. B
266) However, the careful consideration of said evidence
and even after taking into consideration the fact that A·
102 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 C
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 a/so about Shekadi landing D
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 a/so
connotes that the act committed by the A-102, 90, 113 E
& 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 a/ways F
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 G
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
H
180 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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
c 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. Addi.
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
D
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
E 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.
CRIMINAL APPEAL NO. 271 OF 2008
F Sudhanwa Sadashiv Talavdekar ... Appellant
Versus
State of Maharashtra ... Respondent
G 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
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 181
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
guilty and has been convicted under Section 3(3) TADA and A
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 8
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 C
posted as the Superintendent of Customs, Shriwardhan Circle
of the Alibagh Division, Raigad Dist. Maharashtra.
B. Upor:i the conclusion of the trial, the appellant (A-113)
was found guilty under Section 3(3) TADA and has been o
convicted and sentenced as mentioned hereinabove. He (A-
113) was however, acquitted of the general charge of
conspiracy.
Hence, this appeal.
E
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 @ F
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 G
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
H
182 SUPREME COURT REPORTS [2013] 16 S.C.R.
A power and also his duty. Thus, the appeal should be dismissed.
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):
B
(a) Confessional statement of the appellant
(b) Confessional statement of Jaywant Keshav Gurav
(A-82)
c (c) Confessional statement of Dawood Taklya
Mohammed Phanse@ Phanasmiyan (A-14)
(d) Confessional statement of Sharif Abdul Gafoor
Parkar @ Dadabhai (A-17)
D
(e) Confessional statement of Mohmed Sultan Sayyed
(A-90)
(f) Confessional statement of Uttam Shantaram
Potdar (A-30)
E
(g) Confessional statement of Nasir Abdul Kader
Kewal @Nasir Dakhla (A-64)
(h) Deposition of Yashwant Balu Lota le (PW-154)
F (i) Deposition of Usman (PW-2)
0) Deposition of Bharat Hiramal Jain (PW-165)
(k) Deposition of Dipak Balkrishna Rauth (PW-149)
G (I) Deposition of Chandrashekhar (PW-591)
(m) Deposition of Shivkumar Bhardwaj (PW-470)
434. Confessional Statement of S.S. Talwadekar {A-
113):
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 183
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
The evidence against the appellant (A-113) is his own A
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 was closely associated with Dawood @ Dawood B
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 c
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 D
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/-.
E
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, F
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 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 G
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 H
184 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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)
C whether he was the Superintendent Inspector, and when the
appeUant (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 the said question, Tiger Memon
0
(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 lnspectqr, 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/-
E 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 p·assbook account
numbers of his son, which were recovered by the CBI.
F 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
G 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
H
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 185
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
prepared by his advocate Hegde), stating that he had been A
asked to simply sign papers, and that he had not actually made
any confessional statement.
436. Confessional statement of Jaywant Keshav
Gurav (A-82): B
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 C
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 D
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 E
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- F
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 payment of money, and the full co-operation of ·
the appellant in activities connected to smuggling, landing and G
transportation.
438. Confesslona.1 statement of Sharif Abdyl Gafoor
Parkar @ Dggabbal (A·j 7)i
He is also a landing agent. Similarly, Sharif Abdul Gafoor H
186 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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-
B 82).
439. Confessional statement of Mohmed Sultan
Sayyed (A-90):
He has supported the case of the prosecution to the extent
C 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).
D 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).
E
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),
F 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)
G has also supported the case of the prosecution against the
appellant.
,. ,, 443. Deposition of Usman CPW-2) :
He has deposed that it was on 2.12.1992 when the landing
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 187
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
had taken place, that two persons from the Customs A
Department had come at the time of the said landing! 1Though
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.
B
444. Deposition of Bharat Hiramal Jain CPW-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.
·C
.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 CPW-470):
D
He has stated that in January 1993, he had received
information from the ORI 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 E
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 F
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:
G
"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
H
188 SUPREME COURT REPORTS (2013) 16 S.C.R.
A 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
8 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
c 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-113 will be required to be held guilty for
commission of offence uls.3(3) of TADA Act. Needles~
to add that similarly as that of A-82 or even A-102 he cat 1
0
not be held guilty for offence of conspiracy for which hs
is charged with. "
(Emphasis added)
e 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
F 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 Oeepak Balkrishna Rauth (PW-149) and he could not
fumlsh any satisfactory explanation for such investment.
G Tho learned Designated Court has rightly reached the
conclusion so far as his involvement in the offence punishable
under Section 3(3) TADA is concerned.
tn view of the above, we do not find any fOrce In the appeal.
H T!ie appeal :a~~.~ ,. . erit and is acccrdingly dismissed.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 189
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
CRIMINAL APPEAL NO. 598 of 2011 A
State of Maharashtra through CBI ... Appellant
Versus
Jayawant Keshav Gaurav & Ors .... Respondents B
449. This appeal has been preferred by the State against
the final judgment and order dated 2.8.2007 passed by Special
Ju 1.ige of the Designated Court under the TADA in the Bombay
Blast Case No.1 of 1993, by which the respondents/accused C
(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 :beem ,acquitted of the general charge of
conspiracy under TADA.
In view of the fact that each respondent being assigned D
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 E
for the State, has submitted that all the four respondents, were
officials of the Customs Department. They had been warned
by their superior officers that arms and ammunition were going
to be smuggled into the country through the sea; and they were
h '1erefore, required to take all possible preventive measures
F
at. ·d to remain constantly alert. Despite the said warnings, the
res1,ondents demanded higher bribes from the smugglers for
th<~ r. 'Urpose of permitting their landings and transportation, and
thE ~ref~ xe, they ought to have been convicted for the first charge
of cons~piracy as well.
'
I
. G
451. Per contra, Ms. Farhana Shah, Shri Mushtaq Ahmad
am i Ms. A{shani Pracha, learned counsel for the respondents,
ha\ re submitted that the respondents have already been
con victed under various Acts, and considering the participation
of tt 1e individual respondents in the said crimes, punishments i. l
190 SUPREME COURT REPORTS (2013] 16 S.C.R.
A 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.
9 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 arms, ammunition and explosives, in order to
C 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
D between 9th/10th January, 1993. The said acts amount to the
abetment of Mohd. Dossa and his associates for smugglfng
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
E for facilitating the smuggling and transportation of arms,
ammunition and explosives by Tiger Memon (AA), on t~e 3rd
and 7th February, 1993. Thus, tbe charge is one under Section
3(3) TADA.
He (A-82) has been convicted under Section 3(3) TADA
F 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.
G 454. The learned Designated Court, after appreciating the
entire evidence on record, came to the conclusion that the
confessional 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
H other co-accused, particularly, Dawood Taklya (A-14), Uttam
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 191
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Shantaram Potdar (A-30), Ranjit Kumar Singh Baleshwar A
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
8
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 C
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 D
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 E
charge at head 1st ly 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 F
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 not found to have committed any other G
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 H
192 SliPR::ME SOLJRr RfPORTS ~C13! ~6 SC.R
A 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
B 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;
c the Explosives Substances Act: and tre 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.
D 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
E Kumar Singh Baleshwar Prasad (A-102) and Customs
Superintendent Lotle (PW-154). At !re 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.
F 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 Tige- i/iemon (AA) and his
associates at Hotel Big Sp1ac;h on : :: .1 992, he r1ad further
faciiitated the landi11!:jS of aim~ °' rn;u:.!t:o:- di1d explosives at
, Shekhad1 on 3.2 .1993 and 7.2 .1993.
~
He has been convicted under Section 3(3) and has been
awarded a punishment of 7 ;ears RI a1ongwitii a fine of Rs.1
1akh, and 111 defa1..:1 ::f :Ja1i1e1: ot •..~e to f.irt"er •mde·g< · P' fc:
3 years. He has a:rc.:t'.'..f served the ~entt:'1•'" dnd depvs.ted
H the fine.
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 193
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
457. After appreciating the entire evidence on record, the A·
learned Special judge came to the conclusion that:
"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/ B
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 C
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 D
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 E
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 F
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 G
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 taken in the case of the co-accused H
194 SUPREME COURT REPORTS [2013) 16 S.C.R.
A Jayawant Keshav Gaurav (A-82).
Ill. 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
B 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,
C 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 Y.2.1993. Thus,
he has been convicted under Section 3(3) TADA and has been
D 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.
E 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
F 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 Oarbar
meeting and negotiating with smugglers about the bribe
amount to be paid and granting them a charter to
G 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
H contraband goods on its way to destination uptil a
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 1'95
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
particular spot, advising the policemen in clandestine A·
manner etc., and of A~/13 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 B
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-102
clearly reveals themselves having committed the offence c
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-
102 and A-90 had participated in Persian Darbar meeting; D
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 E
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 F
the said operation considered from proper angle also
connotes that the act committed by the A-102, 90, 113
& 82 being primarily for rece.ipt of bribe amount by
misusing/abusing their official position would definitely
fallout of sphere of the conspiracy for which the relevant G
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 H
1918 SUPREME COURT REPORTS (201~'.116 S.C.R.
A may have a semblance of furthering object of cc.1nsp1r acy
will still not make the concerned liable for oft~9nce of
conspiracy. The same is apparent as the act con. 1mitted
by them would be for the purposes of receiving tht~ said
payment and not mainly for furthering the object of
B conspiracy. It is true that their such acts as ruled ea rifer
would amount to commission of offence of an abetm. 9nt
or assistance et for commission of terrorist act by oth w
conspirators and they could be held liable for the sarr:, 1
but still they cannot be said to be involved in the
c 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. Addi.
Collector of Customs whose case clearly appears to be
different i.e. his connection with Tiger Memon being spelt
from evidence revealed during Shekadt landing, there
E being hardly any evidence of himself having received .... "
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
F 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
G 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
1-1 fact t'iat arms, ammunition and explosives were likely ') be
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. · 197
STATE OF MAHARl\SHTRA [DR. S.S. CHAUHAN, J.]
smuggled into the country for facilitating terrorist activities. He A
has been convicted u·nder 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.
B
463. The learned Special Judge after appreciating the
entire evidence on record ieame 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 C.
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 D
at Shekhadi coast instead of again repea_ting 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 E
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-113 will be required to be held guilty for F
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) G
464. This accused (A-113) has already served 6 ~years
and has deposited the fine. Being at par with the other co-
accused, in this present appeal, no further lnterferenc~ Is
required. H
198 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
B 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 @
c 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
D dismissed.
CRIMINAL APPEAL NO. 1439 OF 2007
Khalil Ahmed Sayed Ali Nazir ... Appellant
E Versus
State of Maharashtra Through CBI ... Respondent
AND
F CRIMINAL APPEAL NO. 1035 of 2012
State of Maharashtra ... Appellant
Versus
G Khalil Ahmed Sayeed Ali Nasir ... Respondent
Criminal Appeal No. 1439 of 2007
466. This appeal has been preferred against the
H judgments and orders dated 18.9.2006 and 19.7.2007, passed
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 199
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
by Special Judge of the Designated Court under the TADA in A
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 B
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 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 c
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 fur!her convicted and sentenced
for 10 years R.I: with fine of Rs.50,000/- under Section 6 TADA; D
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 E
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 F
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 G
possession of the aforesaid arms and ammunition, he was
further charged under Section 6 TADA.
B. After conclusion of the trial, the learned Designated
Court held the appellant guilty and awarded punishment as
referred to hereinabove. H
200 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 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
8
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
no~ voluntary and that the same was obtained by way of
coercion and that the entire case is concocted. Therefore, the
C 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
D corroborated by the confessional statements of va~ious co-
ac:cused; 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
E same must be relied 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.
F 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:
G
(a) His own confessional statement
(b) Confessional statement of Muzammil Umar Kadri
(A-25)
H (c) Confessional statement of Dawood @Dawood
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 201
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
Taklya Mohammed Phanse@Phanasmiyan (A-14) A
(d) Confessional statement of Sajjad Alam @Iqbal
Abdul Hakim Nazir (A-61)
(e) Confessional statement of Tulsiram Dhondu Surve
(A-62) B
(f) Confessional statement of Rashid Umar Alware (A-
27)
(g) Depositions of Vijay Govind More (PW-137), c
Laxman Loku Karkare (PW-45), Hari Baburao
Pawar (PW-596)
Confessional statement of appellant CA-42):
472. The appellant (A-42) in his confessional statement D
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 a defence workshop in Kuwait during 1976-1987.
Thereafter, he had worked in Saudi Arabia in the year 1991 E
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 F
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, a.nd 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 G
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 H
202 SUPREME COURT REPORTS [2013] 16 S.C.R.
A was complete, that he was informed by Hasan and Azim tha,
the landed material was not silver, but arms and ammunition
hand grenades, black soap and cartridges. He further admittec
that he was given Rs.5,000/- by Dawood Taklya (A-14) as ai
reward for participating in the landing. Tiger Memon (AA) hat
B threatened everybody that in the event that anyone disclosec-
details about the said landing to any other person, his famil)I
would be eliminated. He further stated that on 22.3.1993
Dawood Taklya (A-14) had come to his house and had giver
him a bag for safe-keeping, stating that he would collect the-
e same later, as the police was searching for him. He (A-14;
informed the appellant (A-42) that the bag contained 2 revolversi
and also some other material. Dawood Taklya (A-14) was.
arrested by the police, and during his interrogation, he disclosec
to the police that 2 revolvers were lying with the appellant (A-
D 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 housea
where he had hidden the same, and handed them over to tha
police.
Confessional statement of Muzamil Umar Kadri (A-
E W:
473. He disclosed the participation of the appellant (A-42)
in the Shekhadi landing on 3rd February. He also stated thall
in January 1993, Rahim Laundrywala alongwith Shafi had comei
F to the house of the appellant Khalil (A-42) by jeep, and hat
called him there. Shafi had told him to keep certain goods ao
his house. After being asked by the co-accused, Shafi informec
him that the goods were actually 16 rifles and 32 cassettes.
When he expressed his inability to keep them, he was
G threatened with dire consequences and therefore, he kept the
said goods in his house. Thus, A-25 has stated that in Janual).
1993, the witness was forced to keep the arms and ammunitior
upon coercion by Rahim Laundrywala and Shafi. At the saidl
time, the appellant (A-42) was also present with them and hadl
H also participated in the landing at Shekhadi.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 203
STATE OF MAHARASHTRA [DR. 8.S. CHAUHAN, J.]
Confessional statement of Dawood Taklya (A-14): A
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 8
the said Custom Officer had told the appellant (A-42) that the
goods must be dispatched after 2.00 A.M., and accordingly,
the said landing had taken place. This accused (A-14) has
stated that after participating in the landing, he returned to his
home alongwith the appellant (A-42), and others in the rickshaw C
of Iqbal and that this accused (A-14) had given to the appellant
(A-42) a sum of Rs. 50,000/- which was to be paid at the
Mhasla Police Station, which the appellant (A-42) confirmed
was paid the next day. The witness further deposed that the
appellant (A-42) was also paid a sum of Rs.2,000/- for
participating in the landing. D
Confessional statement made by Suiiad Alam (A-61 ):
475. He stated that the appellant (A-42) had participated
in the landings at Shekhadi on several occasions and that the E
witness was paid Rs.2,000/- per landing through the appellant
Khalil (A-42). He further stated that he had seen the appellant
(A-42), and the other co-accused (Tiger's men), taking out
goods in gunny bags from a jeep and bringing the same into a
room in the house of the appellant (A-42). At the said time, the
son of accused Dawood Sarfaraz (A-55), was also present. The F
accused (A-61) had also seen the appellant removing 16 rifles
and 32 cassettes (Magazines), from the bags and later on; the
accused had seen the appellant (A-42) sitting in the jeep and
closing the secret cavities in the jeep. The said jeep was then
driven away by Shafi. On 3.2.1993, the accused (A-14) was told G
by the appellant (A-42) that his maternal uncle had told him that
there was a landing of Tiger's goods that night and therefore,
the two of them went for the said landing alongwith several other
persons, and participated in the landing and transportation of
the smuggled goods. It was only after the work, including the H
204 SUPREME COURT REPORTS [2013] 16 S.C.R.
A transportation of the said goods was over, that Taklya (A-14)
had gone alongwith the appellant (A-42) to his house.
On the afternoon of 9.2.1993, Dawood Taklya (A-14) met
·the witness at Mhasla S.T. Stop and asked him to come to
Mhedandi. He took him to Mhedandi, from where he picked up
8
the appellant (A-42) from his house, and then they reached
Muzammail's residence. There Dawood Taklya (A-14) told
Muzammil (A-25) to hand over to him, 3 rifles and 6 cassettes.
The said armaments were handed over by Muzammil (A-25)
C while wrapped in a gunny bag, and after taking the same from
him, all of them came to Lonery Phata on the highway. After a
while, Tiger Memon (AA) also arrived there and they shifted the
bag containing rifles and ammunition to his car. On the said
day, in the evening, Khalil (A-42) came to him (A-14) and told
him that they that had to go for the landing in the evening, and
D the witness has given a full description of their participation in
the said landing on 9th February at Shekhadi.
~onfessional statement of Tulshiram Dhondu Surve (A-
§11:
E
476. He was an employee at the Wangni Tower where he
was working as a watchman alongwith co-accused
Harishchandra Laxman Surve and labourer Vijay Govind More.
They were paid to let the smugglers keep contraband items.in
Wangni Tower. During the loading, at the relevant time, Sarfaraz
F Phanse (A-55) and Khalil Nazir (A-42) were keeping watch
while on a motor cycle. The goods were unloaded, repacked
and taken away. On being asked, Dawood Taklya told him that
the smuggled goods were not silver bricks, but were black soap
and guns. He was warned not to disclose this factum of keeping
G smuggled goods in the Wangni Tower to anyone. Thereafter,
he stated facts regarding the second landing on 2.2.1993 and
also as regards helping the smugglers, wherein the appellant
(A-42) was also present alongwith Tiger Memon and his
associates, and they were fully armed with guns and pistols.
H The appellant (A-42) was keeping watch.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 205
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Confessional statement of Rashid Umar Alware (A-27): A
477. He supported the case of the prosecution regarding
the participation of the appellant (A-42) to the extent that he was
the owner of the truck in which the smuggled goods were
brought from Shekhadi to Wangni Tower, and then to Bombay. 8
According to him, the goods were taken to Wangni Tower and
after unloading a part of the said goods, he was asked to wait
outside. The remaining goods were then unloaded and the
same were kept in one pit dug into the land. At the time of
keeping the goods in the pit, the accused was taken away so C
that he could not see what was being put there. A person,
whom this witness does not know, then gave him Rs. 13,000/
• for the said transportation work and assured him that the
balance amount would be paid after two days. After two days,
a balance amount of Rs. 7 ,0001- was paid to him by the
appellant (A-42). D
Other evidence:
478. The prosecution's version of events was further
supported by Vijay Govind More (PW-137) and he also E
identified this appellant (A-42). The recovery of pistols has.been
reported from him, which has also been duly supported by
Laxman Loku Karkare (PW-45).
479. Laxman Loku Karkare (PW-45), panch witness, in
his examination-in-chief stated that on 26.3.1993 he was in F
village Mhedandi and was called by P.I. Pawar (PW-596) to
stand as panch witness. Pawar (PW-596) brought a person from
the police van who .disclosed his name to be Khalil Ahmed
Sayed Ali Nazir (A-42) to the witness. Khalil (A-42) led the
police party and the panchas to his house. At his house, in a G
cupboard in the sitting room, the police found two pistols, 34
rounds wrapped up in newspapers, and 2 small magazines.
480. Hari Baburao Pawar (PW-596), Police Inspector,
supported the case of the prosecution and stated that on H
206 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 26.3.1993, he had gone to the village of Mhedandi and had
arrested the appellant (A-42) and also Muzammil Umar Kadri
(A-25). Thereafter, the appellant (A-42) had showed the police
party and the panch witnesses his house, and there they had
made a recovery of 2 foreign pistols, 2 empty magazines and
B 34 cartridges from a cupboard in the sitting room. He had
prepared a panchnama and had obtained the signatures of the
Panchas on the same. (Ext.162).
481. The signature of the accused is not required on the
C seizure memo. In State of W.B. v. Kailash Chandra Pandey,
(2004) 12 sec 29, this court held :
"10 .... The first reason given by learned Single Judge
was that no signature of the accused was taken on the
seizure list. It has been stated by the prosecution
D witnesses i.e. by the investigating officers that the
accused refused to sign on the seizure list. No accused
can be forced to put his signature and the prosecution
cannot force him to append his signature on the seizure
memo if he refused to sign. Therefore, just because the
E accused did not append the signature on the seizure
memo that cannot be a ground to improbabilise the
prosecution story."
482. Similarly, in State of Rajasthan v. Teja Ram & Ors.,
F (1!399) 3 SCC 507, this Court held as under:
"Learned counsel in this context invited our attention to
one step which PW 21 (investigating officer) had adopted
while preparing the seizure-memos Ex. P-3 and Ex. P-4.
He obtained the signature of the accused concerned in
G both the seizure-memos. According to the learned
counsel, the aforesaid action of the investigating officer
was illegal and it has vitiated the seizure. He invited our
attention to Section 162(1) of the Code which prohibits
collecting of signature of the person whose statement was
H reduced to writing during interrogation .....
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 207
STATE OF MAHARASHTRA [DR B.S. CHAUHAN, J.]
No doubt the aforesaid prohibition is in peremptory A
terms. It is more a direction to the investigating officer
than to the court because the policy underlying the rule
is to keep witnesses free to testify in court unhampered
by anything which the police claim to have elicited from
them. (Tahsildar Singh v. State of U.P., AIR 1959 SC B
1012; and Razik Ram v. Jaswant Singh Chauhan, AIR
1975 SC 667). But if any investigating officer, ignorant
of the said provision, secures the signature of the person
concerned in the statement, it does not mean that the
witness's testimony in the court would thereby become c
contaminated or vitiated. The court will only reassure the
witness that he is not bound by such statement albeit his
signature finding a place thereon.
That apart, the prohibition contained in sub-section
(1) of Section 162 is not applicable,to any proceedings D
made as per Section 27 of thi;; Evidence Act, 1872 .. ..
The resultant position is that the investigating officer is
not obliged to. obtain the signature of an accused in any
statement attributed to him while preparing seizure-memo E
for the recovery of any article covered by Section 27 of
the Evidence Act. But if any signature has been obtained
by an investigating officer, there is nothing wrong or
illegal about it ..... ".
483. The submission made by Shri Mushtaq Ahmad that F
the evidence of re.covery cannot be relied upon for the reason
that the same did not bear the signature of the appellant/
accused (A-42), is not worthy of being accepted [Vide: State
of Rajasthan v. Teja Ram & Ors., (supra); and Prasad
Ramakant Khade v. State of Maharashtra, (1999) 8 SCC 493 G
(para 8)]
484. After appreciating the evidence on record, the
learned Designated Court came to the conclusion that the
confession of the appellant (A-42) revealed that on 3.02.1993, H
208 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Dawood Taklya (A-14) had informed him that a landing would
take place in the evening, and thereafter, the appellant (A-42),
Nazir (AA} and Dawood Taklya (A-14) had gone to Shekhadi
Coast. Thereafter, the appellant (A-42) had gone to the village
of Borli to bring back men and a truck for the landing, and he
B had returned to the coast in the truck of Rashid Umar Kadri (A-
27) with A-27, Sajjad Alam@ Iqbal Abdul Hakim Nazir (A-61),
Bashir Ahmed Usman Gani Khairulla (A-13), Sharif Khan Abbas
Adhikari (A-60), Muzammil Umar Kadri (A-25) and Azim
Pardeshi at midnight. The landed goods were taken to Wangni
C Tower. At the tower, the same were loaded into tempos and
jeeps, and the appellant (A-42) sat by the side of the driver.
The contraband items were then taken to Bombay, and the
appellant (A-42) was told by Hasan and Azim that said goods
were not silver, but rifles, handgrenades, black soap and
D cartridges. On 22.03.1993, Dawood (A-14) came to house of
the appellant (A-42) and gave to him, one bag telling him that
it contained 2 revolvers. Dawood (A-14) disclosed to the police
that he kept the said revolvers with the appellant (A-42), and
the same were recovered from the appellant (A-42).
E Therefore, the learned Designated Court held that the
aforesaid evidence lead to the inescapable conclusion that the
appellant (A-42) was involved in the Shekhadi landing
operations and had committed offences punishable under
sections as mentioned hereinabove. Having regard to the fact
F that Dawood @ Dawood Taklya (A-14) had chosen the
appellant for the purpose of keeping 2 revolvers with him and
the fact that the appellant (A-42) had readily kept the same,
reveals that he was a man in which the prime accused had
confidence with respect to the conspiracy. However, since he
G had committed the aforementioned relevant acts much prior to
the date of the bomb blasts and had not participated in any
meetings, nor was he connected with the same in any manner,
and the fact that the acts were committed by him at a time when
even the targets of the Bomb blasts had not been fixed, he could
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 209
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
not be held guilty for the offence of larger conspiracy i.e. first A
charge.
485. We find no cogent reason to interfere with the
decision of the Designated Court. The appeal is accordingly
dismissed. B
Criminal Appeal No. 1035 of 2012
486. The respondent in this appeal stood acquitted of the
charge of conspiracy. Hence, the State preferred this appeal.
c
487. Shri Mukul Gupta, learned senior counsel appearing
for the appellant-State has submitted that the evidence against
him has been his own confession, wherein he had admitted his
role in the facilitation of the landing and transportation of
contraband goods from Shekhadi, alongwith Tiger Memon (AA) D
and his associates. The said contraband was transported by
Tiger Memon (AA) into Bombay, and further, the aforesaid arms
were recovered from his residence. The confessional statement
of the respondent has been corroborated by the confessional
statements of Dawood Taklya (A-14), Sharif Abdul Gafoor
Parkar @ Dadabhai (A-17), Muzammil Umar Kadri (A-25), E
Rashid Umar Alware (A-27), Sajjad Alam@ Iqbal Abdul Hakim
Nazi re (A-61) and Tulsiram Dhondl:I Surve (A-62). The
deposition of Prakash D. Pawar (PW-185) who recorded his
confession, Harish Chandra Surve (PW-108), an employee of
the Wangni Tower, Vijay Govind More (PW-137), an employee F
of the Wangni Tower, Waman Kulkarni (PW-662) and Hari
Pawar (PW-596) also corroborated his confession. Hence, the
respondent ought to have been convicted for the charge of
conspiracy.
G
488. Shri Mushtaq Ahmad, learned counsel appearing for
the respondent has opposed the appeal contending that the
learned Designated Court has already considered the matter
and, following the parameters already laid down by this Court,
reached the conclusion that the respondent was not guilty of the H
210 SUPREME COURT REPORTS [2013] 16 S.C.R.
A first charge. The facts of the case do not warrant interference
by this court. Thus, the appeal is liable to be dismissed.
489. The Designated Court after appreciating the entire
evidence on record, came to a conclusion as under:
B "Thus considering material in the confession of A-42 and
aforesaid co-accused the same leads to the conclusion
of A-42 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
c charged at head 2nd ly clause 'a'. Similarly the same
evidence also establishes his involvement in
commission of offences for which charge was framed at
head 3rd ly and 4th ly on count of himself being in
possession of contraband material unauthorisedly i.e.
D commission of offence under Arms Act and uls 6 of
TADA for which he was charged with. Similarly having
regard to the fact that A-14 has chosen him for keeping
the 2 revolvers with him and himself having readily kept
the same considered in proper perspective also reveals
E that role played by A-42 was not restricted for Shekadi
landing and transportation operation but he was a man
of confidence of the prime accused involved in
conspiracy and himself was also involved in conspiracy.
However, himself having committed relevant acts much
F prior to Serial Bomb blasts i.e. in the month of February
1993 and there being paucity of evidence to reveal his
connection with the same in any manner, himself having
not been to Bombay, nor participated in conspiratorial
meeting, the acts committed by him were committed at
the juncture when even the targets for Serial bomb blast
G
were not fixed lead to the conclusion of himself being
party to criminal conspiracy to commit terrorist act
punishable u/s 3 (3) of TADA and himself being not party
to the entire larger conspiracy for which the charge at
head 1st ly was framed against him."
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 211
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
490. The parameters laid down by this court in entertaining A
the appeal against the order of acquittal have to be applied.
,491. As the respondent has been awarded sufficient
punishment under different heads of Section 3(3) and 6 TADA,
and this said offences themselves are a part of the conspiracy,
8
and the\ learned Designated Court has divided the conspiracy
into vari'ous components, considering the present case, where
the accused were either involved in participating in various
.conspiratorial meetings, receiving training in the handling of
arms, their active participation in the throwing of .bombs or
parking O:f vehicles fitted with explosives, or where the accused C
persons participated only in the landing and transportation of
contraba~1d, but were not aware of the contents of the said
contraban.d, and further, another category where the accused
had knowl;edge of the contents of the contraband, but did not
participate either in the conspiratorial meetings held, or in any D
actual incident of any terrorist activity, and has awarded
different p1.1nishments accordingly, we do not see any cogent
reason to allow the said appeal. The appeal is hence,
dismissed.· .
E
CRIMIN>\L APPEAL NO. 203 OF 2008
Shah,riawa1z Hajwani & Ors. . .. Appellants
Versus
F
State of Maharashtra . . . Respondent
WITH
CRln~. APPEAL NO. 396 OF 2011
G
State of Mclharashtra thr. CBI .... Appellant
Versus
Shahjahan l)adamiya Hajwane@ Ors ..... Respondents
H
212 SUPREME COURT REPORTS [2013] 16 S.C.R.
A AND
CRIMINAL APPEAL NO. 414 OF 2011
State of Maharashtra thr. CBI .... Appellant
B Versus
lssaq Mohd. Hajwane .... Respondenl
Criminal Appeal No. 203 of 2008
c 492. This appeal has been preferred by Shahnawaz
Hajwani (A-106), Sikkandar lssaq Hajwane (A-111) ard lssaq
Mohammed Hajwane (A-79), against the judgment ard order
dated 25.5.2007, passed by Special Judge of the Designated
·court under the TADA for Bombay Blast, Greater Bombay, in
D the Bombay Blast Case No. 1/1993.
The first and second appellant (A-106 and A-111) have
been convicted under Section 3(3) TADA, and awarded the
punishment of 5 years RI, alongwith a fine of Rs.10,JOO/-,and
in default of payment of fine, to further suffer RI for tW) months.
E
The third appellant (A-79) has been convicte:l partly for
charge first of conspiracy under Section 3(3) TADA, and has
been awarded 7 years RI, alongwith a fine of Rs.!5,000/-, and
in default of payment of fine, to further suffer RI for 6 months.
F Under Section 3(3) TADA, he has been awarded 5 years RI,
and a fine of Rs.10,000/-, in default of payment of fne, to further
suffer RI for two months. Under Section 6 TADA, he has been
awarded 7 years RI, and a fine of Rs.25,000/-, in default of
payment of fine, to further suffer RI for six months He had been
G convicted for charge at head fourthly, but no seperate sentence
has been awarded under Sections 3 and 7 readwith Sections
25(1-A) (1-B)(a) of the Arms Act. He (A-79) ha:l further been
convicted under Section 201 IPC and awarded a sentence of
5 years and a fine of Rs.10,000/-, in default of fayment of fine
H to suffer further RI of 2 months.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 213
STATE OF MAHARASHTRA [DR. B.S: CHAUHAN, J.]
493. In addition to the general charage of conspiracy, all A
the three appellants had been charged for their overt acts in
connection with the Sandheri training episode. Appellant No.
1 (A-106) and appellant No.2 (A-111) had been charged only
for participating in the training with arms and ammunition with
Tiger Memon (AA) at Sandheri Hillocks on 8.3.1993, while B
appellant No.3 (A-79) had also been charged under various
heads of having possession of 13 handgrenades
unauthorisedly between 1.4.1993 till 3.4.1993, with the intent
to aid terrorist activities. Fourthly, under Sections 3 and 7 read
with Section 25 (1-A)(1-B)(a) of the Arms Act, which he had c
dumped in the sea coast abutting Gandharwadi village which
had been recovered at his instance between 1.4.1993and
3.4.1993.
Hence, this appeal.
D
494. Shri Sushi! Karanjekar, learned counsel appearing for
the appellants, has submitted that impugned judgment and
order of conviction is not sustainable for the reason that recovery
memo cannot be relied upon and the recovery had not been
made in accordance with law. The learned Special Judge erred E
in recording the findings that the appellants had participated
in the training for handling of arms at Sandheri on 8th January,
1993. In view of the fact that the appellants have not participated
in acquiring any knowledge in handling of arms is meaningless
and, therefore, their participation in the training cannot be relied F
upon. In view of specific findings recorded by the learned
Designated Court that the appellants were not even known the
contents of the contraband, their conviction under any provision
of TADA is not sustainable. Therefore, the appeal deserves to
be allowed.
G
495. On the contrary, Shri Mukul Gupta, learned senior
counsel appearing for the respondent, has vehemently
opposed the appeal, contending that the findings of facts
recorded by the learned Special Judge do not warrant any
interference, as the same are opposed on appreciation of H
214 SUPREME COURT REPORTS [2013] 16 S.C.R.
A evidence, and the same cannot be held to be perverse.
Recovery had been made in accordance with law. The
participation of the appellants in the training of arms at
Sandheri Hillock on the relevant date is proved by cogent
evidence. The appeal lacks merit and is liable to be dismissed.
B
496. We have heard learned counsel for the parties and
perused the records.
497. Evidence against the appellants:
c (a) Deposition of Mahadeo Yeshwant Jadav (PW-103)
(b) Deposition of Ashok Vasant Vichare (PW-104)
(c) Deposition of Harishchandra Keshav Pawar (PW-
D 105)
(d) Deposition of Rajaram Ramchandra Kadam (PW-
106)
(e) Deposition of Namdev Pundlik Mahajan, A.P.I.
E (PW-587)
(f) Deposition of Chandrakant Sambhaji Pawaskar
(PW-609)
F Deposition of Harishchandra Keshav Pawar CPW-105)
498. He is a resident of the village Sandheri. He deposed
that on 8.3.1993 just after Holi, he heard gunshot noises made
by several persons at about 9.00 a.m. when he was sitting at
State Transport bus stand of his village Sandheri. He (PW-105)
G went alongwith his friends Shahnawaz Hajwani, Juber Hajwani,
lnayat Hajwani and Ashfaq Ramzani towards the site known as
Chinchecha Mal on the hillock towards the western side of
Sandheri which is 1 K.M. from the said bus stand. He (PW-105)
saw many cardboard targets fixed at different places around
H the hillock. Two-three guns were being used for firing. The guns
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 215
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
were of arms length. He (PW-105) knew three persons out of A
8-10 persons present there. They were lssaq Hajwane (A-79),
Hamid Dafedar (now dead) and Sharif Parkar (A-17). He (PW-
105) was present at the said place for a short while as Hamid
Dafedar rushed to them and threatened them that if they did
not leave they would be killed. Hence, the witness (PW-105) B
and his friends ran away. He identified the said three named
persons in the court including lssaq Hajwane (A-79).
Deposition of Rajaram Ramchandra Kadam CPW-106)
499. He (PW-106) is a resident of village Sand.heri aged C
71 years. He deposed that just after Holi on 8.3.1993 he (PW-
106) was present at village Sandheri and after hearing the
gunshots he went towards Chinchecha Mal, a place nearby
Gardav Wadi of village Sandheri at about 9.30 to 10.00 a.m.
After reaching there he (PW-106) saw cardboard targets were D
fixed near the hillock which were of square shape and
approximately 2 Yi feet in size. Some persons were sitting
at the said Mal, they got up and asked him to leave the said
place immediately otherwise he (PW-106) would be shot dead.
The persons who had threatened him were not known to him. E
However, five persons amongst the persons who were sitting
there, were residents of his village and they included lssaq
Hajwane (A-79), Shahnawaz Hajwani (A-106), Sikkandar lssaq
Hajwane (A-111), Hamid Dafedar, and Sharif Parkar. The said
witness (PW~106) identified all the fjve persons in court. F
Deposition of Ashok Vasant Vichare CPW-104)
500. He (PW-104) was a resident of village Falsap, 3
K.ms. away from Sandheri and deposed that he (PW-104) knew
the appellant (A-79) for a long time and on 1.4.1993, he was G
called to Goregaon Police Station by a Constable who told him
that he must be the panch witness to the disclosure statement
of lssaq Hajwane (A-79) who was in their custody. Thereafter,
the appellant (A-79) made a disclosure statement, according
H
216 SUPREME COURT REPORTS [2013] 16 S.C.R.
A to which, the police officials, the appellant (A-79) and both the
panch witnesses reached near Sandheri Jetty when the
appellant (A-79) asked the driver to stop the vehlcle. They got
off the vehicle and the appellant (A-79) took a lead and all other
persons followed him and reached Sandheri Jetty on foot. The
B appellant (A-79) took a stone and threw the same at a particular
spot in the water and told them that they had thrown
handgrenades and empty cartridges within the vicinity of the
place at which he had thrown the stone. Thereafter, divers/
swimmers and boatmen were called to the said place by the
C police. The search by the divers/swimmers continued upto 3.00
p.m. but they were only able to find two handgrenades.
Search was conducted with the help of the naval squad
whicil commenced search at 10.00 a.m. and continued upto
6.00 p.m. in the presence of panch witnesses and they found
D four handgrenades and seven empty cartridges from the creek
water. The panchanama of the said recovery was drawn at the
said place at about 6.00 p.m. The same was read over to the
CO··panchas and it was signed by them.
E On the next day search was again conducted by the naval
squad and they found, 72 empties. The same had been of
yellow colour and were of size of an empty cartridge for a rifle.
Some of them were bearing markings "71/71". Some of them
were having marking "661/71" and some of them were.of "991/
F 72". In respect of the same, the panchanarna was drawn which
was read over to the panchas and signed by them.
Deposition of Namdev Pundlik Mahajan. A.P.I. CPW-587)
501. He deposed that while he was on duty on 28th/29th
G March, 1993 in Goregaon Police Station, he was informed tiy
one of the police officials that in connection with the Bombay
Blast that had occurred on 12.3.1993, Sharif Parkar had
brought some bullets from Bombay and carried out firing
practice with an AK-56 rifle at Sandheri Hillocks on 8.3.1993.
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 217
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
He had immediately given the said information to S.P., Shri T.S. A
Bhal who instructed him to go to the said place. He alongwith
other police officials reached Sandhi:,ri at 2.00 p.m. and found
that the incident had occurred at Chinchecha Mal in the hillocks
of Sandheri. Next day, on the instructions of Shri T.S. Bhal he
reached Sandheri Village at about 6.00 a.m. Three police B
officials and 20 constables had already reached the said place.
He inspected the said spot and drew up the panchanama. He
recovered three empty cartridges of a rifle bearing some
marking on it, six lead pieces, the broken branches of the tree,
the targets prepared out of a cardboard, the stones bearing the c
marks of bullets and these articles were wrapped in a paper.
The packet was tied with sutli and it was sealed. The
panchnama was read over to the co-panchas and it was signed
by him and other co-panchas.
He had further deposed that on 30.3.1993 while recording D
the statement of some persons, the residents of Sandheri he
got the clue about the involvement of one Hamid and
Shahjahan, the residents of Sandheri in the incident of training
at Sandheri hillocks on 8.3.1993.
E
He deposed that in spite of his best efforts he could not
trace out the accused on 31.3.1993. However, on 1.4.1994 he
got the information that Hamid, Shahjahan, lssaq Hajwane and
Sikkandar lssaq Hajwane had taken shelter in the Sandheri
forest. He reached there alongwith other police officials and F.
found them and brought them to Goregaon Police Station for
inquiry. After being satisfied that they were accused involved
in C.R. No.6/93, they were arrested at 10.15 a.m.
On the same day, at about 10.30 a.m. lssaq Hajwane (A-
79) expressed his desire to make voluntary statement. The G
witness immediately called two panch witnesses for drawing
the panchnama. He deposed that one panch witness was
Ashok Vichare (PW-104), and he did not remember the name
of the other panch witness.
H
218 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Deposition of Chandrakant Sambhaii Pawaskar (PW-609)
502. He is a police officer and deposed that he had taken
over the investigation from Namdev Mahajan (PW-587) on
2.4.1993, and subsequently recorded the statement of Rajaram
Ramchandra Kadam (PW-106) and Tukaram Babu Nagaonkar
8
(PW-176) and others.
He further deposed that on 17.4.1993, he sent the articles
recovered from Chinchecha Mal to a Chemical Analyst with a
forwarding letter for carrying out the examination and sending
C a report.
He further deposed that on 17.4.1993 he had not seen the
empty cartridges but had described markings on the said
empties in Exh.2112 on the basis of th.e description of the
0 empty cartridges in Panchnama i.e. Exh.539. The said empty
c:artridges sent to Chemical Analyst for examination on
17.4 1993 were bearing marking "661/71" and the panchnama
shown to him does not reveal any empty cartridge bearing
marking "661/71" being seized under the same panchnama.
E Deposition of Mahadeo Yeshwant Jadav CPW-103)
503. He is an agriculturist. He was called on 29th March,
1993 to act as a panch witness by the police from Goregaon
Police Station. He deposed that he a!ongwith Shri Patil reached
i= Chinchecha Mal at about 9.00 a.m. Some 4-5 police officials
were already present at the place. The police asked the panch
witnesses to collect broken branches, pieces of cardboard,
three empty cartridges, six lead pieces and pieces of stones
lying on the ground and the police took charge of the said
G articles. The police effected the writings about the said things
and signatures of the panch witnesses were obtained on the
writings. The said writings were read over to them by the police
before their signatures.
504. After appreciating the entire evidence, the learned
H ['<>~i0r1ted Court recorded the finding that the appellant (A-
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 219
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
79) could not furnish any explanation that he had no knowledge A
of said contraband material for some other reason, and his
possession of such articles for such a long period considered
along with his participation in the training programme leads to
no other conclusion than himself being party to conspiracy to
commit terrorist act. B
However, having regard to fact that there exists no other
evidence of commission of any act by the appellant (A-79) and
there is no evidence of him having been to Bombay or having
participated in conspiratorial meetings, it would be difficult to C
accept that knowledge of commission of serial bombs blasts
in Bombay can be attributed to him. Since there is a paucity of
evidence to show that the appellant (A-79) had any knowledge
regarding the places at which the explosions were committed
in Bqmbay, he cannot be held liable for the offence of larger
conspiracy for which the charge at head firstly is framed against D
him. However, considering the acts and offences committed by
him and particularly the retaining of such a contraband material
and disposing the same definitely establishes himself being a
party to c,0nspiracy to commit terrorist act punishable under
Section 3(3) TADA. E
505. The said material which was sent for chemical
analysis particularly live handgrenades were defused, as
deposed by Pramod Kisanrao Dhaware (PW-598). He also
issued a certificate that 13 handgrenades had been defused F
which were given to Shri V.M. Ghadshi .
506. From the evidence referred to hereinabove, it is
evident that Harishchandra Keshav Pawar (PW-105) named
three persons from his village participating in the arms training
at Sandheri hillocks and one of them had been lssaq Mohmed G
Hajwani (A-79). Raja ram Ramchandra Kadam (PW-106)
named all the three appellants to be members consisting of 8-
10 persons participating in the training of arms and ammunition
in Sandheri hillocks on 8.3.1993 and he identified all the three
appellants alongwith others in the court. The other co-accused, H
220 SUPREME COURT REPORTS [2013) 16 S.C.R.
A particularly, Abdul Gani Ismail Turk (A-11 ), Dawood@ Dawood
Taklya Mohammed Phanse@ Phanasmiyan (A-14) and Sharif
Abdul Gafoor Parkar@ Dadabhai (A-17), in their confessional
statements had also named all the three appellants as
participants in the arms training on 8.3.1993 at Sandheri
B hillocks. The evidence of the aforesaid persons is trustworthy
as we do not see any reason to discard the same at least to
the extent of participation of these three appellants in arms
training on 8.3.1993 at Sandheri hillocks.
In view of the above, the appeal is dismissed.
c
Criminal Appeal No. 396 of 2011
507. The respondents (A-106 & A-111) had been
acquitted of the charge of conspiracy. Hence, the State has filed
0 appeal against them.
508. Shri Mukul Gupta, learned senior counsel appearing
for the appellant has submitted that the said respondents had
been very closely associated with terrorist activities and had
participated in the training at Sandheri with Tiger Memon (AA).
E Therefore, they ought to have been convicted for the charge of
conspiracy also.
509. On the contrary, Shri Sushil Karanjekar, learned
counsel appearing for the respondents (A-106 and A-111) has
F vehemently opposed the appeal, contending,t'lat they were
convicted and have served substantial part thereof. The
respondents (A-106 and A-111) did not participate in the
training at Sandheri, and at the most, they could be held to be
silent spectators of the training and therefore, could not be
G involved in the offence. Thus, the appeal is liable to be
dismissed.
510. None of the said respondents (A-106 and A-111) has
made any confession. The evidence against them regarding the
training at Sandheri is only by Rajaram Kadam (PW-106), who
H had deposed in the court that on 8.3.1993, some people were
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 221
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
being trained in handling of arms at Chinchecha Mal in the A
morning at about 10 a.m. As there was continuous firing he went
to the said hillock in order to find out what was happening.
There he saw two persons armed with guns standing at the said
place and 5-6 persons were sitting at Chinchecha Mal. He also
saw a cardboard target fixed nearby the hillock. One person B
with the beard from the persons who were sitting there got up
and asked him to leave the hillock otherwise he would be shot
by the gun. The.witness (PW-106) was frightened and
immed)ately returned to his village. He did not know the person
who had threatened him or the other persons who were having c
the arms. About 4 to 5 persons from his village were amongst
the persons who were sitting at the said place at that time
including these two respondents (A-106 and A-111 ). He
identified both the respondents (A-106 and A-111) in court as
the persons sitting at Chinchecha Mal. 0
511. The learned Designated Court after appreciating the
evidence came to the conclusion that there was sufficient
evidence to convict the respondents (A-106 and A-111) under
Section 3(3) TADA, as they also faeilitated Tiger Memon (AA)
in other aspects, but merely sitting at the hillock, did not mean E
that they participated in the training and therefore, it could not
be the basis of assuming that they were party to the training
programme.
512. The parameters laid down by this court in entertaining F
the appeal against the order of acquittal have to be applied.
513. In view of the above, we do not see any cogent
reason to take the view contrary to the view taken by the learned
Special Judge, considering the parameters laid down by this
court for entertaining the appeal against the order of acquittal. G
The appeal lacks merit, and is accordingly, dismissed.
Criminal Appeal No. 414 of 2011
514. The respondent (A-79) had been acquitted of the H
222 SUPREME COURT REPORTS (2013] 16 S.C.R.
A charge of conspiracy. Hence, the State has filed appeal against
him.
515. Shri Mukul Gupta, learned senior counsel appearing
for the appellant has submitted that there was enough evidence
and particularly, the confessional statement made by Sharif
8
Abdul Gafoor Parkar @ Dadabhai (A-17), and the depositions
of Mahadeo Jaswant Jadav (PW-103), Ashok Vichare (PW-
104), Harish Chandra Pawar (PW-105), Rajaram Kadam (PW-
106), and Namdev Pundlik Mahajan (PW-587), to convict the
respondent for the first charge of conspiracy. Thus, the court
C below committed an error in acquitting the respondent from the
said charge, and thus on that count, the respondent should be
convicted.
516. Ms. Farhana Shah, learned counsel appearing for the
D respondent has submitted that considering the parameters for
interference in an appeal against the order of acquittal, no
interference is required. The respondent has already suffered
sufficiently, and he has been convicted on various other
charges. Thus, the appeal is liable to be dismissed.
E
517. The Designated Court after appreciating the entire
evidence came to the following conclusion:
"However, case regarding A-79 clearly appears to
be different. There exists an evidence denoting that in
F consequent to information given by A-79, 13 handgrenades
and empties were recovered/seized by police during the
period from 1.4.1993 to 3.4.1993 from the sea coast at
Gandharwadi. The said facet considered on the backdrop
that training programme had taken place on 8th of Ma.rch,
G 1993 or thereabout leads to the conclusion of A-79 having
the knowledge of such a contraband article in the month
of April 1993 and the same being recovered from the
place shown by him. Now considering in proper
perspective the information furnished by A-79 his
H knowledge of such material lying at the said place and the
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 223
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
reason because of which he was having the same i.e. his A
authorship in dumping the material at the said place. All
the said evidence clearly reveals that all the said material
must have been with A-79 after the training programme
was complete and/or at least the said evidence and the
ultimate act committed by him reveals that himself having B
dominum and control over the said material and hence
consequently being in possession of same. Thus having
regard to the said facets leads to no other conclusion that
A-79 being also guilty for offence under Section 6 of TADA,
offences under Sections 3 .and 7 read with Section 25(1- c
A)(1-B)(a) of Arms Act and Section 201 IPC.
In addition to same and having regard to fact that no
explanation had come forward from A-79 that he was
having knowledge of said contraband material for some
other reason and his possession of such articles for such D
a lon!:1 period considered along with his participation in the
training programme leads to rio other conclusion than
himself being- party to conspiracy to ·commit terrorist act.
However, having regard to fact that there exists no other
evidence of commission of any act by A-79, himself being E
not a resident of Bombay, no evidence of himself having
been to Bombay or having participated in conspiratorial
meeting, it will be difficult to accept that knowledge of
commission of serial bomb blasts in Bombay can be
attributed to him. Since there is a paucity of evidence to F
show that A-79 was having any knowledge regarding the
places at which the explosions were committed in Bombay
he cannot be held liable for the offence of larger
conspiracy for which charge at head firstly is framed
against him. However, considering the acts and offences G
committed by him and particularly the retaining of such a
contraband material and disposing the same definitely
establishes himself being party to conspiracy to commit
terrorist act punishable under Section 3(3) of TADA.
H
224 SUPREME COURT REPORTS [2013] 16 S.C.R.
A The court further held:
The same discloses that A-79 was found guilty for
commission of offence of conspiracy to commit terrorist
act, punishable under Section 3(3) of TADA and he was
also found guilty on four other counts for ·commission of
B
offences under Sections 3(3) and 6 of TADA, Sections 3
& 7 read with Section 25(1-A)(1-B)(a) of Arms Act and
Section 201 IPC.
Without unnecessarily reiterating every aspect
c connected with decision arrived accordingly, in short it can
be said that each of the said accused was found guilty
accordingly mainly due to acts committed by him in
connection with Sandheri training Episode which has taken
place on 8th of March, 1993 at Borghat and Sandheri.in
D which prime absconding accused Tiger Memon had
organised a training camp for imparting a training of
handling arms, ammunition and handgrenades to the
persons taken from Bombay and so also local persons
from the area of Sandheri.
E
The evidence surfaced and/or reasoning given
thereon earlier also reveals that all the aforesaid accused
persons were local residents and were not from Bombay.
The same also does not disclose that they had any prior
connection with Tiger Memon or any of the prime accused
F involved in this case, prior to their participation in training
programme or even thereafter. Similarly, the evidence
does not disclose any of these accused having been
trained in handling of handgrenades. Though it is true that
evidence have surfaced regarding Tiger Memon having
G imparted such a training of throwing of handgrenades at
a place by name Manjeri Ghat, Waghjai etc. still the same
does not disclose that the same was imparted to any local
person and on the contrary evidence discloses that the
same was given to the persons, who were taken by Tiger
H Memon from Bombay to said place.
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 225
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
It is significant to note that though A-79 has been A
held guilty accordingly still no evidence has surfaced on
the record of A-79 having used the handgrenades with him
for the purposes of commission of any terrorist acts of
committing explosion or any other acts to further the
objective of conspiracy to which he was a party. It is further B
significant to note that no evidence has surfaced on the
record to reveal that A-79 held guilty for offence of
conspiracy or even A-106 & A-111 at any point of time had
been to Bombay for commission of any act furthering
object of criminal conspiracy, to which A-79 was found to c
be a party. Needless to add that acts committed by each
of the accused were confined to Sandheri and the same
had never transcended beyond the said area and none of
them and particularly A-79 is not found to have committed
any act in the area of Bombay i.e. the place at which serial D
blasts were committed, resulting into deaths of and/or
injuries to many.
Having regard to all the aforesaid facets and
particularly taking into consideration the extent of acts
committed by A-79 he was found guilty for offence of E
conspiracy to the extent i.e. only for offence of conspiracy
to commit terrorist acts made punishable under Section
3(3) of TADA or in other words A-79 was not found guilty
for a party to a conspiracy for the acts for which the charge
at head firstly was framed against him. Since elaborate F
reasoning for coming to such a conclusion, being already
recorded in the earlier part of the judgment and so also
the aspect of framing such elaborate charge, etc. being
also recorded explained during the said earlier part of
reasoning and so also while making a common discussion G
the earlier part of the sentence part of judgment and so
also while discussing about awarding sentence to ·
accused, who had acquired the training at Pakistan i.e. A-
77, 92, 94, 95, 108, 115, it will be wholly unnecessary for
once again repeat the said reasoning. H
226 SUPREME COURT REPORTS [2013] 16 S.C.R.
A As stated earlier prosecution has demanded for
giving maximum penalty prescribed under the law for all
the aforesaid accused who according to prosecution i.e.
A-106 to A-111 falling in second group while A-79 falling
in the first group made by learned Chief Public Prosecutor
B Le. the group of accused found guilty for commission of
offences under TADA and so also under other enactments.
During the discussion made earlier for reasons already
given it has been already ruled that such a blanket attitude
cannot be taken while determining the sentence for such
c accused placed in said group as different penalty ranging
from 5 years to life imprisonment with fine has been
prescribed under TADA for commission of various acts/
offences as prescribed under Section 3(3) of TADA
including for offence of conspiracy to commit terrorist acts
made punishable under the same."
D
518. The parameters laid down by this court in entertaining
the appeal against the order of acquittal have to be applied.
519. In view of the fact that after appreciating the entire
E evidence the learned Special Judge reached the conclusion
that the case of respondent (A-79) was entirely different from
the other co-accused, particularly those who had not
participated in the training of arms. It was further held that
respondent (A-79) had knowledge of the said contraband
F mater.ial being arms and ammunition and had been brought for
terrorist activities and he was found in possession of the
handgrenades and empties; it was further found that A-79 had
thrown the same in the creek water to absolve himself of the
offences. We are of the view that the Special Judge was not
G justified in acquitting him· from the first charge of larger
conspiracy merely on the ground that he did not know about
the places where the bombs had to be thrown and he was not
the resident of Bombay and did not participate in the
conspiratorial meetings. The finding of fact recorded by the
H Special Judge is also contradictory as the court held that he
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 227
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
participated in the arms' training at Sandheri. However, he A
observed that the evidence does not disclose that any of those
accused had been trained in handling of handgrenades.
520. In view of the fact that there is sufficient material on
record that the respondent participated in the training of B
handling the handgrenades, there was no occasion for the
learned Special Judge to take such a view.
In view of the above, the appeal stands allowed. The
respondent is awarded life imprisonment. The respondent is
directed to surrender before the learned Designated Court C
within a period of four weeks to serve out the remaining
sentence, failing which the Designated Court will secure his
custody and send him to jail to serve out the sentence.
CRIMINAL APPEAL NO. 1423 OF 2007 D
Shah Nawaz Khan ... Appellant
Versus
State of Maharashtra . . . Respondent E
AND
CRIMINAL APPEAL NO. 1032 OF 2012
State of Maharashtra ... Appellant F
Versus
Shah Nawaz Khan . . . Respondent
Criminal appeal No. 1423 of 2007 G
521. This appeal has been preferred against the judgment
and order dated 31.5.2007 passed by the Special Judge of the
Designated Court under the TADA in the Bombay Blast cases,
Greater Bombay in Bombay Blast Case No.1 /93, by which the
appellant (A-128) has been convicted under Section 3(3) H
228 SUPREME COURT REPORTS [2013] 16 S.C.R.
A TADA, on two counts, and has been awarded a sentence of
10 years, alongwith a fine of Rs.25,000/- , on each count.
Further, all the sentences have been directed to run
concurrently.
522. In addition to the main charge of conspiracy, the
8
appellant was charged for participating in and assisting
Mushtaq @Ibrahim @ Tiger Abdul Razak Memon, and his
associates in the landing and transportation of arms,
ammunition and explosives which were smuggled into India for
the purpose of committing terrorist acts, at various points such
C as, Shekhadi, Taluka Shrivardhan, District Raigad on 3rd and
7th February, 1993, and further for agreeing to undergo
weapons' training in Pakistan in the handling of arms;
ammunition and explosives for committing the said terrorist acts
and for this purpose, he travelled to Dubai, and attended
D conspiratorial meetings held there in these regards.
523. Shri Mushtaq Ahmad, learned counsel appearing on
behalf of the appellant (A-128), has submitted that he was only
21 years of age at the time of the aforementioned incident, and
E that he had falsely been implicated in the case, as he was not
involved in any overt act, nor he had gone to Pakistan for any
weapons' training. A-128 was arrested at Bhusawal, and his
conviction cannot stand for want of evidence against him.
Some of the co-accused in their confessional statements,
F named merely 'Shahnawaz' and in addition to the appellant,
there is also another convict named 'Shahnawaz Qureshi'.
Therefore, there has been confusion regarding the identification
of the appellant (A-128). Hence, this appeal deserves to be
allowed.
G 524. On the contrary, Shri Mukul Gupta, learned senior
counsel appearing on behalf of the respondent, has vehemently
opposed the appeal contending that the confessional statement
of the appellant (A-128) has been corroborated by the
confessional statements of various other co-accused,
H particularly, Dawood Taklya Mohammed Phanse (A-14), Munna
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 229
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
@Mohammed Ali Khan@ Manojkumar Bhavarlal Gupta (A-24}, A
Ashfaq Kasim Havaldar (A-38), Shaikh Mohmed Ethesham
Haji Gulam Rasool Shaikh (A-58), Nasir Abdul Kader Kewal
" @ Nasir Dakhla (A-64), Shaikh Kasam @ Babula! Ismail
Shaikh (A-109) and Salim Kutta (A-134). The appellant (A-128)
had admittedly gone to Dubai, and participated in conspiratorial B
meetings held there, and had also been closely associated with
the main conspirators and further that he had met Tiger Memon
(AA) and others several times. Therefore, no interference is
called for.
525. We have considered the rival submissions made by
c
the learned counsel for the parties and perused the record.
526. Evidence against the appellant :
(a) His own confessional statement D
(b) Confessional statement of Munna @Mohammed
Ali Khan @ Manojkumar Bhavarlal Gupta (A-24)
(c) Confessional statement of Shaikh Mohmed
Ethesham Haji Gulam Rasool Shaikh (A-58) E
(d) Confessional statement of Shaikh Kasam
@Babula! Ismail Shaikli (A-109)
(e) Confessional statement of Nasir Abdul Kader
Kewal @ Nasir Dakhla (A-64) F
(f) Confessional statements of Sultan-E-Rome Sardar
Ali Gui (A-114), Abdul Aziz Abdul Kader (A-126),
Mohmed Iqbal Ibrahim (A-127), Eijaz Mohd. Sharif
@ Eijaz Pathan @ Sayyed Zakir (A-137), Murad G
Ibrahim Khan (A-130)
(g) Depositions of Harish Chandra Surve (PW-108),
H.C. Singh (PW-474), Massey C. Fernandes (PW-
311) and Vijay Govind More (PW-137)
H
230 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 527. Confessional statement of the appellant (A-128):
In his confessional statement dated 12.5.1994, he
deposed that in 1991, he was living in Chandshahwali Dargah,
Pawai, a place where he had been residing for a long time and
B that here he met a person named Karimullah. After leaving his
job in White Star International, the appellant (A-128) met
Karimullah and asked him to get him (A-128) a job. He (A-128)
was taken to the office of Eijaz Pathan of Mis Famous
Construction but was not successful. Then the appellant met
Babula! (A-109) and Shaikh Mohmed Ethesham Haji Gulam
C Rasool Shaikh (A-58), who was also associated with Karimullah
and developed a visiting relationship with them. After the
demolition of the Babri Masjid, Karimullah called the appellant
(A-128) through Shaikh Mohmed Ethesham Haji Gulam Rasool
Shaikh (A-58), and met him (A-128) in a flat near Rajasthan
D Hotel, Bombay, in the last week of January, or the first week of
February, 1993. At such time, several other accused were also
present in the flat. He learnt later on, that the said flat belonged
to Yeda Yaqub. Karimullah assured the appellant (A-128) that
he would find some work for him and also gave him Rs.500/-
E for household expenditure. After 2-3 days, when he went to
meet Karimullah, he found large number of other co-accused
sitting in the said flat, and saw that they were getting ready to
go somewhere. Akbar asked the appellant (A-128) to go with
them. They all proceeded in a blue coloured commander Jeep.
F While going with them, he also saw Tiger Memon (AA) and
other persons moving alongwith them in another jeep. He was
told by Shaikh Mohmed Ethesham Haji Gulam Rasool Shaikh
(A-58) that the persons in the other jeep who were traveling with
them were Tiger Memon, Javed Chikna, Tahir Takalpa, Nazir,
G Bashir Khan, Salim Kurla, Rahat Ali and Mansoor Ahmad. He
was told by Akbar that they were going to Shrivardhan to collect
weapons etc., which had been ordered by Tiger Memon (AA)
for the Bombay blasts. All the persons including the appellant
(A-128) and Tiger Memon (AA) reached Shekahdi at 8.00 p.m.
H After reaching the Beach, Tiger Memon removed a rifle from a
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 231
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
black bag and gave the same to Javed Chikna, Karimullah an<J A
Nasir. After sometime, Tiger Memon, alongwith a few co-
accused, particularly, Jawed Chikna, Veda Yaqub, Dawood
Takalya and some labourers went into the Sea in a trawler
which was already been parked there, and returned after 15-
20 minutes with some goods. They took 3-4 rounds to the Sea B
and back, and brought sacks with them each time they
returned. Tiger Memon opened some sacks and the appellant
(A-128) saw that they contained rifles, hand grenades and
plastic bags containing a black coloured powder in them.
Bullets were also among th·e said contraband, which were kept c
by Tiger Memon in his Maruti car. After that they left the said
place and travelled for about an hour and reached a building
which looked like a factory with a big tower. After reaching
· there, the sacks were kept 0utside once unloaded from the
tempo. Some packets containing rifles and plastic bags were D
kept in the cavities in.the Commander jeeps. At 5 a.m. they left
the said tower and reached Mahad from where they left for
Bombay on the instructions of Tiger Memon (AA). The appellant
·(A-128) was sitting in the tempo alongwith Karimullah. The
appellant (A-128) got down from the tempo upon the
E
instructions of the other co-accused and the tempo was taken
to, Mumbra and its contents were emptied.there by Yeda Yakub.
He further said that after a few days Karimullah asked the
appellant (A-128) over the telephone whether he had a
passport, and as the answer provided by him was in the
affirmative, he (A-128) was called alongwith his passport. When F
he went to meet Karimullah with his (A-128) passport, he found
some of the other co-accused present in Karimullah's flat. He
(A-128) handed over his passport to Karimullah and asked why
it was required, he (A-128) was then told that he (A-128) had
to go to Dubai for weapons' training. The appellant (A-128) G
subsequently left for Dubai on 15.2.1993 on the ticket arranged
by the co-accused. He went there alongwith seven other co-
accused. They went to Dubai by an Air India flight and reached
there at 6.00 o'clock in the evening. They got their visa and went
to the flat of Eijaz Pathan on the 8th floor of a building near the H
232 SUPREME COURT REPORTS [2013] 16 .S.C.R.
A Sea. The next day some other accused also reached there.
Accused Veda Yakub met them on a few occasions and told
them that he was in the process of making arrangements for
them to go to Pakistan where they would receive their training.
However, he (A-128) could not go to Pakistan as the said
s training could not be arranged, and hence, he (A-128) returned
to Bombay on 1.3.1993. He (A-128) was arrested from
Bhusawal when he was with his newly wedded Wife. However,
he had not committed any overt act so far as the Bombay blasts
dated 12_;3.1993 are concerned.
c 528. It is evident from his confessional statement that he
was unemployed at the relevant time. He (A-128) was closely
connected with Karimullah and the other co-accused. He (A-
128) was fully aware that the co-accused were smuggling silver,
as well as the arms and ammunition. He had gone to Dubai
D for the purpose of traveling further to Pakistan for weapons
training. He (A-128) could not go to Pakistan but waited for 15
days in Dubai and later returned to Bombay. His expenses for
traveling to Dubai and back were met by the co-accused. He
participated twice in the landin·g and transportation of arms and
E ammunition. His confessional statement makes it abundantly
clear that his statement was voluntary. He was given sufficient
time to re-think and was allowed to stay in the CBI office for a
period of 48 hours, and he (A-128) made it clear that during
this period no body had met, pressurised, threatened or
F intimidated him.
Confessional statement of Munna @Mohammad Ali CA-
_24):
529. The said co-accused corroborated the prosecution's
G case to the extent that the appellant (A-128) had in fact,
participated in the landing at Shekhadi.
530. Shaikh Mohmed Ethesham Haji Gulam Rasool
Shaikh (A-58), had been staying alongwith Eijaz Mohd Sharif
H @Eijaz Pathan @Sayyed Zakir (A-137) at the house of Haji
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 233
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Yakub during the riots that took place in the month of January, A
1993 in Bombay, alongwith some other persons including the
appellant (A-128). During that period, Munna (A-24) told the
appellant (A-128) and the other co-accused that he had
received a telephone call from Eijaz Bhai asking him to unload
the Tiger's silver. The accused (A-58), alongwith other co- B
accused participated in the landing at Shrivardhan. He (A-58)
further stated that at the time of such landing, Tiger Memon had
given him a pistol, and one AK-47 rifle each to Munna and
Karimullah and a revolver to the appellant (A-128) to be used
in the event of any intervention during the landing. However, the c
said weapons were returned after the landing was completed.
531. Babula! (A-109) supported the case of the
prosecution to the extent that the appellant (A-128) visited
Dubai alongwith .the other co-accused.
D
532. Nasir Abdul Kader Kewal (A·64) has supported the
version of events that show the participation of the appellant
(A-128) in the Shekhadi landing.
533. This prosecution case also stood corroborated by E
Sultan-E-Rome Sardar Ali Gui (A-114), Abdul Aziz Abdul Kader
(A-126), Mohmed Iqbal Ibrahim (A-127), Eijaz Mohd. Sharif@
Eijaz Pathan@ Sayyed Zakir (A-137) and Murad Ibrahim Khan
(A-130).
534. Harishchand Laxman Surve (PW-108) and Vijay F
Govind More (PW-137) were employed as. watchmen, and
they have also deposed against the appellant (A-128) as
regards his presence there alongwith the other co-accused
when they came to Wangni Tower from Shekhadi with arms etc.
G
Evidence of witnesses:
535. In addition thereto, the case of the prosecution has
been supported by H.C. Singh (PW-474), Superintendent of
Police, CBI who recorded the confessional statement of the
appellant (A· 128) and Massey C Fernandes (PW-311 ), a H
234 SUPREME COURT REPORTS [2013] 16 S.C.R.
A former employee of Hans Pvt. Ltd. who arranged tickets for
Shahnawaz Khan (A-128) and others, and Vijay Govind More
(PW-137), an employee of Abu Travel Agency, who deposed
to the effect that 11 persons' tickets were arranged by him and
that payment for the same was made by the co-accused.
B
536. The appellant (A-128) made a retraction of his
confessional statement on 1.7.1994 i.e., within two months of
making such confessional statement, stating that he never
made any statement at all and that he had been forced to make
a confessional statement and was also forced to sign on blank
C papers. He had hence been falsely implicated in the said case.
537. In his statement under Section 313 of the Code of
Criminal Procedure, 1973, while replying to Question Nos. 218
and 292, he denied his participation in the Shekhadi landing
D of weapons and in the transportation of the same to Bombay.
He also denied that he had gone to Dubai to execute a certain
conspiracy and in fact, rather suggested that he nad gone there
on a business trip.
E 538. Upon consideration of the entire evidence on record,
the Designated Court held that the same leads to the
inescapable conclusion of the appellant (A-128) being involved
in the Shekhadi landing operation as has been denoted by the
said material and has thus comrr1itted an offence under section
3(3) TADA. It was further held that considering the evidence of
F the said landing, and the role carried out by the appellant (A·
128) and ultimately the fact that he himself had continued with
the said operation, and had not provided any information about
the same to any proper authority, the defence's contention that
earlier he did not know the purpose for which he was going to
G Shekhadl, or that he was not aware that the arms and
ammunition were to be smuggled, Is liable to be rejected. The
confession of the appellant (A-128) Itself reveals, that during
the course of said operation he became fully aware of the nature
of the contraband goods I.e., the same being arms and
H ammunition. The appellant (A-128) being taken to Bombay for
AHMED SHAH KHAN DURRANI @AS. MUBARAK v. 235 ·
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
the execution of the said operation, and thereafter being sent A
to Dubai for training denotes that he was a man in whom Tiger
Memon (AA) hacj confidence, as he did in the other
conspirators.
However since the appellant (A-128) committed the
8
aforementioned relevant acts much before the main conspiracy I
of actually committing the bomb blasts planned and had not
participated in any meetings or committed any acts in
furtherance of the said main conspiracy, it was held that he
could not be held guilty for the offence of larger conspiracy i.e.
first charge, but is required to be held guilty for the conspiracy C
to commit terrorist acts as aforementioned.
539. We find no evidence on record warranting
interference with the judgment of the learned Designated Court.
The said appeal lacks merit and is thus, accordingly dismissed. 0
Criminal Appeal No. 1032 of 2012
540. Though respondent has been convicted for various
offences, he has been acquitted of the charge of conspiracy.
HE)nce, the State has preferred this appeal against the order
of acquittal. E
541. Shri Mukul Gupta, learned senior counsel appearing
for the appellant has submitted that the evidence against the
respondent (A-128) has been his own confession, and
confessional statements of Sultan·E·Rome Sardar Ali Gui (A· F
114), Abdul Aziz Abdul Kader (A-126), Mohmed Iqbal Ibrahim
(A-127), Shaikh Kasam @Babulal Ismail Shaikh (A-109), Manoj
Kumar Gupta (A-24), Shaikh Mohmed Ethesham Haji Gulam
Rasool Shaikh (A-58), Eijaz Mohd. Sharif@ Eijaz Pathan @
Sayyed Zakir (A-137), Nasir Abdul Kader Kewal (A-64); Murad
Ibrahim Khan (A-130), and further depositions of H.C. Singh G
(PW-474), Harlsh Chandra Surve (PW-108), lftlhar Ahmed Iqbal
Ahmed (PW-317), Abdul Gafoor (PW-197) and Chaturbhuj R.
Rode (PW-222). Thus, he ought to have been convicted for the
first charge. '·
H
236 SUPREME COURT REPORTS [2013] 16 S.C.R.
A 542. Shri Mushtaq Ahmad, learned counsel appearing for
the respondent has submitted that the Designated Court has
considered the entire evidence, and after appreciating the
same, it came to the conclusion that the respondent was not
guilty of the first charge of conspiracy. In view of the parameters
B laid down by this court, no interference is required against the
order of acquittal. Hence, the appeal is liable to be dismissed.
543. After appreciating the entire evidence, the
Designated Court came to the conclusion that the respondent
(A-128) had participated in landing and transportation of arms,
C ammunition and explosives. It was also concluded that he (A-
128) had agreed to undergo weapons' training in Pakistan for
committing terrorist acts. He also attended a meeting at Dubai
alongwith co-conspirators to plan commission of terrorist acts.
Thus, the respondent (A-128) was found guilty of conspiracy only
D to the extent of commission of terrorist acts punishable under
Section 3(3) TADA, and not of the larger conspiracy as he
could not go to Pakistan for training for handling of arms and
ammunition. He (A-128) had been acquitted of the charge of
larger conspiracy for the reason that he did not participate in
E any act after his return from Dubai on 1.3.1993.
544. The parameters laid down by this court in entertaining
the appeal against the order of acquittal have to be applied.
545. We do not find any cogent reason to interfere in the
F matter. The appeal lacks merit and is accordingly dismissed.
546. Before parting with the case, we may clarify that If the
accused-appellant(s) whose appeals have been dismissed and
are on bail, their bail bonds are cancelled and they are directed
to surrender within four weeks from today, failing which the
G learned Designated Court, TADA shall take them into custody
and send them to jail to serve out the remaining part of their
sentences.
Blbhutl Bhushan Bose Appeals disposed of.
H
AHMED SHAH KHAN DURRANI @A.S. MUBARAK v. 237
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
Annexure 'A' A
s Criminal Accused Name Sentence Awa rd
No Appeal and Number. Designated by
Court Supreme
Court
1. 1438 of Ahmed Shah Khan 5 years RI Dismissed B
2007 Durrani @ A.S. with fine of
Mubarak S (A-20) Rs.25,000/-
2. 912 of Az.iz Ahmed Md. 5 years RI Dismissed
2007 Ahmed Shaikh · with fine of
(A-21) Rs.25,000/- c
3. 1030 of Ahmad Shah Khan Acquitted Dismissed
2012 @ Salim Durani &.
(State Anr. (A-20 and
appeal) A-21)
D
4. 1311 of Yusuf Khan@ 5 years RI Dismissed
2007 Kayum Kasam with fine of
AND Khan (A-31) Rs.25,000/-
417 of
2011 Acquitted Dismissed
(State E
appeal) .
5. 1610of Uttam Shantaram 10 years RI Dismissed
2011 Potdar (A-30) with fine of
Rs.50,000/-;
and 14 years F
RI with fine of
Rs.1 lakh
AND
398 of Acquitted Allowed G
2011 and
awarded
life
(State imprison-
appeal) ment H
238 SUPREME COURT REPORTS [2013) 16 S.C.R.
A 6. 1420 of Mohd. Rafiq@ 5 years RI Dismissed
2007 Rafiq Madi Musa with fine of
Biyariwala (A-46) Rs.25,000/-;
and 7 years
RI with fine of
B Rs.50,000/-
AND
1031 of Acquitted Dismissed
2012
c (State
appeal)
7. 675-681 Suleman Mohamed A-18: Dismissed
of2008 Kasam Ghavte &
D Ors. (A-18, A-28, 7 years RI
A-61, A-62 and with fine of
A-73) Rs.25,000/-
A-28 Dismissed
E 7 years RI
with fine of
Rs.25,000/-
A-61 Dismissed
F 7 years RI
with fine of
Rs.50,000/-
A-62 Dismissed
G 9 years RI
with fine of
Rs.50,000/-
A-73 Dismissed
H
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 239
STATE OF MAHARASHTRA [DR B.S. CHAUHAN, J.]
8 years RI A
with fine of
Rs.10,000/-
8. 600 of Sayed Abdul Acquitted Dismissed
2011 Rehman Shaikh
B
. (State (A-28)
appeal)
9. 406 of Gulam Hafiz @ Acquitted Dismissed
2011 Baba (A-73)
c
(State
appeal)
D
10 408 of Suleman Kasam Acquitted Dismissed
2011 Ghavate (A-18)
(State
appeal) E
11 1034 of Tulsi Ram Dondu Acquitted Dismissed
2012 Surve (A-62)
(State
appeal)
F
12 416 of Sujjad Alam (A-61) Acquitted Dismissed
20t1
.
(State
appeal)
13 512 of Abdulla Ibrahim 5 years RI Dismissed G
2008 Surti & Ors. (A-66) with fine of
Rs.25,000;
and 6 years
RI with fine of
Rs.25000/-
H
240 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Faki Ali Faki 5 years RI Dismissed
Ahmed Subedar with fine of
(A-74) Rs.25,000;
and 6 years
RI with fine of
Rs.25,000/-
B
Janardhan 6 years RI Dismissed
Pandurang with fine of
Gambas (A-81) Rs.50,000;
and 3 years
c RI with fine
of Rs.25,000/-
Sayed @ Mujju 5 years RI Dismissed
Ismail Ibrahim with fine of
Kadri (A-104) Rs.10,000/-
D
Srikrishna 6 years RI Dismissed
Yeshwant with fine of
Pash1lkar (A-110) Rs.25,000/-
401 of Acquitted frqrn Dismissed
E 2011 the charge of
(State larger
appeal) conspirary
(A-74)
595 of Acquitted from Dismissed
F
2011 the charge of
(State larger
appeals) conspirary
(A-66)
G 14. 171 of Ashok Narayan Both - 6 years Dismissed
2008 Muneshwar (A-70) RI with fine of
and 172 Arun Pandari Nath Rs.25,000;
of 2008 Madhukar Mahadik
(A-99)
H
AHMED SHAH KHAN QURRANI @ A.S. MUBARAK v. 241
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
403 of Acquitted for Dismissed A
201 larger
(State conspiracy
appeal)
15 1630 of Liyakat Ali Habib 5 years RI Dismissed
2007 and Khan (A-85) with fine of B
Rs.25,000/-;
1029 of Acquitted for
2012 larger
(State conspiracy Dismissed c
appeal)
16 207 of Mujib Sharif Parkar 5 years RI Dismissed
2008 (A-131) with fine of
Rs.25,000/-
D
AND
415 of Acquitted for Dismissed
2011 larger
(State conspiracy
appeal) E.
17 2173 of Mohammed Sultan 7 years RI Dismissed
2010 Sayyed(A-90) with fine of
Rs. 1 lakh
18 1632 of Ranjit Kumar Singh 9 years RI Dismissed
F
2007 (A-102) with fine of
Rs.3 lakhs
19 271 of . Sudhanwa Sadashiv 8 years RI Dismissed
2008 Talavdekar (A-113) with fine of
Rs. 2 lakhs
G
20 598 of Jayawant Keshav Acquitted for Dismissed
2011 Gaurav (A-82) larger
(State conspiracy
appeal)
H
242 SUPREME COURT REPORTS [2013] 16 S.C.R.
A Mohd. Sultan
Sayyad (A-90)
Ranjitkumar Singh
Baleshwar Prasad
(A-102)
8
Sudhanwa Sadashiv
Talwadekar (A-113)
21. 1439 of Khalil Ahmed Sayed 10 years RI Dismissed
2007 Ali Nazir (A-42) with fine of
c Rs.50,000/-;
10 years RI'
with fine of
Rs.25,000/-;
AND and 10 years
D RI with fine
of Rs.50,000/-
1035 of Acquitted for Dismissed
E 2012 larger
(State conspiracy
appeal)
22. 203 of Shahnawaz Hajwani (A-106) and Dismissed
2008 (A-106), Sikkandar (A-111)-
F lssaq Hajwani 5 years RI
AND (A-111) and lssaq with fine of
Mohammed Hajwane Rs. 10,000/-
(A-79)
(A-79) -7 year•;
G RI with fine of
Rs. 25,000/-
396 of Acquitted for Dismissed
2011 larger
H (State conspiracy
AHMED SHAH KHAN DURRANI @ A.S. MUBARAK v. 243
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.)
appea11 A
(A-106 &
A-111)
414 of lssaq Mohd. Acquitted for Allowed
2011 Hajwane larger and
(State conspiracy awarded B
appeal) life
(A-79) imprison-
.
ment
23. 1423 of Shah Nawaz Khan 10 years RI Dismissed
2007 (A-128) with fine of
c
Rs. 25,000/-
'
AND.
1032 of Acquitted for Dismissed
D
2012 larger
(State conspiracy
appeal)
These are cross appeals filed by the accused as well as
by the State. Appeals filed by the accused are dismissed, while E
the appeals filed by the State being Criminal Appeal Nos. 398
of 2011 against Uttam Shantaram Potdar (A-30), and Criminal
Appeal No. 414 of 2011 against lssaq Mohd. Hajwane (A-79)
are allowed. A-30 and A-79 are awarded life imprisonment.
They are directed to surrender within four weeks from today, F
failing which ttie learned Designated Court, 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 Designated Court.
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