Supreme Court of India
IBRAHIM MUSA CHAUHAN @ BABA CHAUHANversusSTATE OF MAHARASHTRA
- Citation
- 2013 INSC 180
- Decided
- 21 March 2013
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The Court upheld the majority of TADA convictions, finding that the prosecution proved conscious possession and intent, while it acquitted the two appellants whose confessions were involuntary and whose participation in terrorist activities could not be established.
Summary
The Supreme Court reviewed a series of criminal appeals arising from the 1993 Bombay serial blasts, all tried under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The appeals concerned convictions for offences such as unauthorised possession of arms and explosives (s.3(3), s.5, s.6 TADA), conspiracy, and financial assistance to terrorist activities. The Court examined the admissibility of confessional statements recorded under TADA, the validity of recoveries of contraband from public places, and the operation of the statutory presumption that possession in a notified area implies intent to use the items for terrorist acts. It upheld the convictions and sentences of most appellants, finding that the prosecution had proved conscious possession and the requisite mens rea, and that recoveries made on the basis of the accused’s own disclosures were reliable. However, the Court set aside the convictions of two appellants – Mubina @ Baya Moosa Bhiwandiwala (A‑96) and Mulchand Sampatraj Shah (A‑97) – because their confessions were not voluntary and the evidence did not establish the necessary knowledge or intent. All other appeals were dismissed.
Issues considered
- The admissibility and voluntariness of confessional statements recorded under TADA.
- The reliability of recoveries of contraband made from public or open spaces and their evidentiary value under Section 27 of the Evidence Act.
- The operation of the statutory presumption under Section 5 TADA and the burden on the accused to rebut it.
- Whether the accused had conscious possession and knowledge of the terrorist purpose of the arms and explosives.
- The applicability of Section 21(2) TADA presumption for financial assistance to alleged terrorists.
- The credibility of police panch witnesses and the requirement of independent corroboration.
Legislation cited
- Arms Act, 1959s. 25(1-A), s. 25(1-B)(a), s. 3, s. 7
- Explosives Act, 1884s. 9-B(1)(b)
- Explosive Substances Act, 1908s. 4(b)
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 120-B, s. 201, 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. 21(2), s. 3(3), s. 5, s. 6
Subjects
TADABombay blasts 1993confession admissibilityrecovery of contrabandstatutory presumptionconscious possessionarms and explosivesconspiracyfinancial assistanceappeal dismissed
Judgment
[2013) 15 S.C.R. 1061
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN A
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 555 of 2012)
MARCH 21, 2013
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.3(3), 5, 6 and 15 - Bombay serial blasts of 1993 -
Conscious possession of contraband and weapons in notified C
area - Recoveryfrom public place - Conviction of A-41 by
Designated Court u/ss. 3(3) and 5 of TADA - Justification -
Held: Justified - A-41 was well acquainted with Abu Salim
(absconding accused) who was working with Anis Ibrahim
Kaskar (another absconding accused), brother of notorious D
smuggler Dawood Ibrahim - A-41 was asked to arrange a
garage, and hence searched for an appropriate garage with
co-accused Salim, Hingora (A-53) and his partner Haneef -
A-41 was introduced to co-accused Sanjay Dutt (A-117) at the
residence of the latter and witnessed the handing over of E
contraband to A-117 - A-41 was in conscious possession of
certain contraband items - Recovery of contraband material
which was effected upon the making of a disclosure statement
by A-11, took place at a dumping ground for waste - Penal
Code, 1860 - SS. 120-B, 302, 307, 326, 324, 427, 435, 436, F
201 and 212 - Evidence Act, 1872 - s.27 - Arms Act, 1959
- ss.3 and 7 rlw ss:25(1-A), (1-B)(a) - Explosive Substance·
Act, 1908 - s.4(b) - Explosives Act, 1884 - s.9-B(1)(b) -
Prevention of Damage to Public Property Act, 1984 - s.4.
Terrorist and Disruptive Activities (Prevention) Act, 1987 G
- ss.3(3) and 5- Bombay serial blasts of 1993- A-67 charged
for arranging 13 air tickets in order to facilitate the traveling
of the accused persons for training of handling arms,
1061 H
1062 SUPREME COURT REPORTS [2013] 15 S.C.R.
A ammunition and explosives - Also charged for knowingly and
intef]tionally storing two suitcases containing arms and
ammunition -· Conviction of A-67 - Challenged - Held: In the
second week of February 1993, A-67 met A-1 in the office of
A-68 and A-1 asked A-67 to book tickets for Dubai for him -
B Thereafter, A-68 gave A-67 four packets and after some time,
A-46 came with 3 packets of A-1 to be kept with A-67 - On
being asked A-68 revealed that the packets contained
weapons which had been brought to be used for taking
revenge of sufferings of Muslims - A-67 had taken 5 bags
c on 10.3.1993 and kept the same in the garage of A-1 at the
Al-Husseini Building - The Bombay blast took place on
12.3.1993, and it was after that A-67 kept the 2 remaining
bags with PW282 from where they had been recovered by the
police on a voluntary disclosure of A-67 and at his instance
0 - Prosecution's case stood corroborated by the confessional
statement of A-46, who had also disclosed that he had
received a sum of Rs.50,0001- and Rs.62,0001- respectively,
from A-1 to be handed over to A-67 and accordingly, the said
amount had been delivered to A-67 by him - He had also
E deposed that he had seen A-67 taking away the 3 suit cases
in red Maruti Car to Al-Husseini Building ~ Other evidences
of PW341 and PW.420 fully proved the booking of tickets by
the firm of A-67 - Though the evidence on record in respect
of booking does not lead to draw an inference, that while
booking the tickets he had any knowledge of any conspiracy
F regarding the Bombay blasts, however, recovery of 2 suit
cases containing the arms and ammunition i.e.,
handgrenades, detonators and wires etc. was effected by
PW506, on the disclosure of A-67 in the presence of PW37
and on 26.3.1993 from the hcuse of PW-282 - Conviction of
G A-67 upheld.
Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.3(3) - Bombay serial blasts of 1993 - A/legation that A-
95 had abetted and facilitated various terrorist activities, and
H more particularly, he had gone to Pakistan to receive weapons
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1063
STATE OF MAHARASHTRA
training in the handling of arms, ammunition and explosives A
for commission of terrorist activities - He was further charged
for having attended conspiratorial meetings held in Dubai and
Pakistan, alongwith the other co-conspirators in order to plan
the commission of terrorist acts - Conviction of A-95 -
Justification - Held: Justified - A-95 had gone to Dubai at the B
behest of A-65 and, thereafter, to Islamabad in Pakistan for
attending the training camps and acquired training in handling
the arms and ammunition and thereafter, returned to India via
Dubai - Evidence on record that A-95 came to know only after
reaching Dubai that he had. to go with other four co-accused c
to Pakistan for taking training as they had to take a revenge
for suffering of Muslims, and he was under a coercion that he
alongwith others could be arrested by the police of Dubai and,
therefore, he had to go to Pakistan for training - Though, after
coming back, no evidence to show that A-95 had committed 0
any offence and participated in any other act on the fateful
day, however, as A-95 had obtained training for commission
of the terrorist acts, he cannot be acquitted of the charges u/
s.3(3) TADA.
Terrorist and Disruptive Activities (Prevention) Act, 1987 E
- ss. 3(3) and 5- Bombay serial blasts of 1993- Possession
of contraband - Preparatory act for commission of terrorists
acts - Conviction of A-123 - Designated TADA Court held
that contraband articles recovered from A-123 were received
from A-49 and A-123 concealed the same by digging up the F
earth in close vicinity of railway station - Held: Involvement
of A-123 stood fully established - He had been given the
contraband material by A-49, and A-123 was fully aware of the
nature of the weapon and cartridges - Relevant Panchnama,
i.e., the statement in the memorandum Panchnama, the oral G
evidence of panch witness (PW-40) and evidence of PW-600
connect A-123 in concealing the weapon and ammunition -
Conviction of A-123 upheld.
Terrorist and Disruptive Activities (Prevention) Act, 1987
H·
1064 SUPREME COURT REPORTS [2013] 15 S.C.R.
A - s.3(3) and 5- Bombay serial blasts of 1993-A-47 charged
with keeping in po~session one AK-56 rifle, 980 cartridges
and 132 magazines of AK-56 rifles, knowing that they were
being smuggled into the country for committing terrorist acts
- Recovery of contraband - Specific knowledge - Conviction
B of A-47 - Justification - Held: Justified - Merely because the
contraband was recovered from a public place, i.e. a place
accessible to the public at large, the same did not mean that
the recovery was to be discarded - In case, the articles had
been hidden by digging up the earth, covering the same up
c with garbage or other material, the public may not have taken
note of it - The same remained in the specific knowledge of
the accused, i.e. where and also the manner in which the said
articles were hidden - The recovery could not be discarded
for want of signature of the accused on the recovery memo
- Arms Act, 1959 - ss.3 and 7 rlw s.25(1-A)(1-B)(a).
0
Tefforist and Disruptive Activities (Prevention) Act, 1987
- ss.3(3) and 5 - Bombay serial blasts of 1993 - Possession
of contraband - Aiding terrorists - Conviction of A-91 -
Designated TADA Court held that A-137 having kept the bag
E of contraband at the house of A-91, thereafter the further act
of A-91 in shifting the same to the house of his mother-in-law
clearly shows that he had dominium and control over the
same - Held: A-91 had kept in his possession
unauthorisedly weapons at the behest of A-137 - A-91 told
F his mother-in-law and other family members that tffe goods
belonged to his friend, and nobody should open the same -
Recovery of the same at his behest stood proved -
Prosecution successfully proved its case - Conviction of A-
91 upheld-Arms Act, 1959- ss.3 and 7 rlw s.25(1-A)(1-B)(a).
G
Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.3(3) - Bombay serial blasts of 1993 - A-96 was charged
with facilitating the holding of conspiratorial meetings in her
flat in Bandra, wherein the terrorist acts came to be discussed
and finalized - Conviction of A-96 - Justification - Held: Not
H justified - No evidence on record to show that A-96 was the
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1065
STATE OF MAHARASHTRA
actual owner of the flat where the meeting took place - A-96 A
was simply present in the next room when the meeting was
held and she was asked to serve tea - Further, it was her
brother who was well acquainted with Tiger Memon
(Absconding accused) and after his death Tiger Memon (AA)
simply gave some money to her family for household B
expenses and that money was not for her own personal/
individual expenditure - Nothing on record to show that A-96
knew that the blasts were going to take place on that day, or
that she had acquired any knowledge that Tiger Memon (AA)
would be absconding from India - Moreover, she was not a c
participant in any overt act in furtherance of the conspiracy -
A-96 entitled for benefit of doubt - Acquitted of the charge u/
s.3(3) TADA
Terrorist and Disruptive Activities (Prevention) Act, 1987
- s.5 - Bombay serial blasts of 1993 - A-50 charged for D
permitting co-accused and his associates, to store
contraband/explosive material/ROX in his godown -
Designated Court held that A-50 had been in unauthorised
possession of 58 bags of ROX material within the notified
area, and that he had indulged, alongwith the other co- E
accused conspirators, in disposal of said ROX material -
Held: A-50 had spent about Rs. 5 /akhs for disposal of the said
material - A very close associate of Tiger Memon (AA) had
a/so been involved in the process of such disposal - The
remnants of ROX were taken from his godown, and thrown into F
the river - Being in possession of the said material for a
limited time period, rendered him guilty for commission of
offence u/s.5 TADA - He was a/so guilty u/s. 201 /PC, as even
though he may not have been directly involved in disposal
of the contraband, the same was disposed of upon his G
instructions, and for this, he had paid a huge amount - Penal
Code, 1860 - s.201.
Terrorist and Disruptive Activities (Prevention) Act, 1987
- ss. 2(1)(a)(iii), 3(3), 5 and 21(2) - Bombay serial blasts of H
1066 SUPREME COURT REPORTS [2013] 15 S.C.R.
A 1993 - Rendering of financial assistance - Conviction of A-
97 - Justification - Held: Not justified - A-97 was working as
a carrier or agent, between persons indulging in money
transactions in India or abroad, without having any knowledge
whatsoever, that A-1 or his ass6ciates or any other co-accused
B were indulging in terrorist activities - Nothing on record to
show that A-97 indulged in such activities though he might
be involved in other illegal activities - S.21(2) of the Act can
be resorted to, only in case it is proved by the prosecution
that the accused rendered any financial assistance to a
c person who was already facing the charge of terrorist or
disruptive activities or he had reasons to suspect that the
person to whom financial help was rendered was indulging in
such activities - Thus, there was a burden on the prosecution
first to prove the aforesaid condition - Nothing on record to
show that during the time A-97 facilitated the financial
0
transaction of A-1 in the fake account named 'HATH/' and that
he had reason to suspect that Tiger Memon or his associates
were indulging in disruptive activities, or had been accused
in such activities - A-97 may be guilty of running and
E indulging in fraudulent banking activities, or may be violating
of provisions of other statutes but cannot be held guilty of the
offences u/s.3(3) TADA - Foreign Exchange and Regulation
Act, 1973.
Evidence - Confession - Retracted confession -
F Admissibility of.
Evidence - Recovery of contraband from public place -
Appreciation of recovery evidence - Held: It cannot be said
that a recovery made from an open space or a public place
G accessible to everyone, should not be taken into consideration
for any reason - The reasoning behind it, is that, it will be the
accused alone who will be having knowledge of the place,
where a thing is hidden - Other persons having access to the
place would not be aware of the fact that an accused, after
commission of offence, had.concealed contraband material
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1067
STATE OF MAHARASHTRA
beneath the earth, or in the garbage - Once possession is A
established, burden is on the accused to show that he was not
in conscious possession - Terrorist and Disruptive Activities
(Prevention) Act, 1987 - s.5.
Evidence - Evidence of police officials - Appreciation - B
Held: Duty cast on the Court to adopt greater care while
scrutinising .the evidence of the police official - If evidence
of police official is found acceptable, the court cannot reject
the prosecution version solely on the ground that no
independent witness was examined.
c
Jackaran Singh v. State of Punjab AIR 1995 SC 2345
- distinguished.
State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC
370: 1999 (1) SCR 1033; State of Maharashtra v. Bharat o
Fakira Dhiwar (2002) 1 SCC 622: 2001 (5) ·suppl. SCR 12;
Durga Prasad Gupta v. State of Rajasthan thr. CBI (2003) 12
SCC 257: 2003 (4) Suppl. SCR 1; Sanjay Dutt v. State thr.
CBI, Bombay (//), (1994) 5 SCC 410: 1994 (3) Suppl. SCR
263; Ka/pnath Rai v. State (Thr. CBI) (1997) 8 SCC 732; E
Paras Ram v. State of Haryana (1992) 4 SCC 662: 1992 (2)
Suppl. SCR 55; Pradeep Narayan Madgaonkar & Ors. v.
State of Maharashtra (1995) 4 SCC 255; Sama Alana
Abdulla v. State of Gujarat (1996) 1 SCC 427: 1995 (5)
Suppl. SCR 279; Anil v. State of Maharashtra (1996) 2 SCC
589: 1996 (2) SCR 807; Tahir v. State (Delhi) (1996) 3 SCC F
338: 1996 (3) SCR 757; Balbir Singh v. State (1·996) 11 SCC
139: 1996 (7) Suppl. SCR 50; Gurjinder Singh v. State of
Punjab AIR 2011 SC 972: 2011 (3) SCC 530; State Govt. of
NCT of Delhi v. Sunil & Anr. (2001) 1 SCC 652: 2000 (5)
Suppl. SCR 144; Aloke Nath Dutta & Ors. v. State of West G
Bengal (2007) 12 SCC 230: 2006 (10) Suppl. SCR; State
of Rajasthan v. Teja Ram & Ors. AIR 1999 SC 1776: 1999
(2) SCR 29 Kartar Singh v. State of Punjab (1994) 3 SCC
569: 1994 (2) SCR 375 and Sahib Singh v. State of Haryana
(1997) 7 sec 231: 1997 (3) Suppl. SCR 95 - relied on. H
1068 SUPREME COURT REPORTS [2013] 15 S.C.R.
A Yakub Abdul Razak Memon v. State of Maharashtra thr.
CBI Criminal Appeal No.1728 of 2007 - referred to.
Case Law Reference:
1999 (1) SCR 1033 relied on Para 15
B
2001 (5) Suppl. SCR 12 relied on Para 16
2003 (4) Suppl. SCR 1 relied on Para 18
1994 (3) Suppl. SCR 263 relied on Para 19
c (1997) 8 sec 132 relied on Para 42
1992 (2) Suppl. SCR 55 relied on Para 42
(1995) 4 sec 255 relied on Para 42
D 1995 (5) Suppl. SCR 279 relied on Para 42
1996 (2) SCR 807 relied on Para 42
1996 (3) SCR 757 relied on Para 42
1996 (7) Suppl. SCR 50 relied on Para 42
E
2011 (3) sec 530 relied on Para 89
2000 (5) Suppl. SCR 144 relied on Para 90
2006 (10) Suppl. SCR relied on Para 119
F AIR 1995 SC 2345 distinguished Para 170
1999 (2) SCR 29 relied on Para 171
1994 (2) SCR 375 relied on Para 190
G 1997 (3) Suppl. SCR 95 relied on Para 197
CRIMINAL APPELLATE JURISDICTION :Criminal Appeal
No. (s). 555 of 2012 etc.
From the Orders of Convication dated 29.11.2007 and
H
IBRAHIM MUSA CHAUHAN @BABA CHAUHAN v. 1069
STATE OF MAHARASHTRA
order of Sentence date 06.06.2007 of the Learned Designated A
Court Under TADA (Prevention) Act, 1987 for Bomb Blast
Cases, Greater Bombay in Bomb Blast Case No.1 of 1993.
WITH
Crl.A. Nos. 1129-1130 of 2007, 402 & 617-618 of 2008, B
1631,1419, 1226, 1422, 1180, 1225 of 2007, 919 of 2008 &
1393 of 2007.
Shekhar Kumar, Ajay sharma, Ms. Farhana Shah, Dr.
Sushi! Balwada, Mushtaq Ahmad, V.R. Anomolu, Balraj Dewan, C
Himanshu Shekhar, Advs., for the Appellant.
Mukul Gupta Sr. Adv., Satyakam, Anubhav Kumar, Anando
Mukherjee, Harsh N. Parekh, P. Parmeswaran, Advs, with him
for the Respondent.
D
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the judgments and orders dated 29.11.2006
and 6.6.2007 passed by a Special Judge of the Designated E
Court under the Terrorist and Disruptive Activities (Prevention)
Act, .1987 (hereinafter referred to as the 'TADA') in the Bombay
Blast Case No. 1/1993, by which the appellant (A-41) has been
convicted under Sections 3(3), 5 and 6 TADA, as well as under
Sections 3 and 7 read with Section 25(1-A) (1-B) (a) of the F
Arms Act, 1959 (hereinafter referred to as the 'Arms Act'),
Section 4(b) of the Explosive Substances Act, 1908
(hereinafter referred to as the 'Act 1908), and Section 9-B(1)
(b) of the Explosives Act, 1884 (hereinafter referred to as the
'Act 1884').
G
2. Facts and circumstances giving rise to this appeal are
that:
A. As all the main factual and legal issues involved in this
appeal have already been dtscussed by us and H
1070 SUPREME COURT REPORTS [2013) 15 S.C.R.
A determined in the main connected appeal i.e. Yakub
Abdul Razak Memon v. State of Maharashtra thr. CBI
{Criminal Appeal No.1728 of 2007), there is thus, no
occasion for us to repeat the same.
B B. The Bombay Blasts occurred on 12.3.1993, in which
257 persons lost their lives and 713 were injured. In
addition thereto, there was loss of property worth several
crores. The Bombay police investigated the said matter
at the initial stage, but subsequently the investigation of the
same was entrusted to the Central Bureau of Investigation
c (hereinafter referred to as the 'CBI'), and then upon
conclusion of the investigation, a chargesheet was filed
against a large number of accused persons. Among the
accused persons against whom a chargesheet was filed,
40 accused could not be put to trial as they were
D absconding. Thus, the Designated Court under TADA
framed charges against 138 accused persons. During the
trial, 11 accused died and 2 accused turned hostile.
Furthermore, the Designated Court discharged 2 accused
during trial, and the remaining persons, including the
E appellant (A-41) stood convicted.
C. A common charge of conspiracy was framed against
all the coconspirators including the appellant. The relevant
portion of the said charge is reproduced hereunder:
F "During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (U.A.E.),
Pakistan, entered into a criminal conspiracy and/or were
members of the said criminal conspiracy whose object
G was to commit terrorist acts in India and that you all agreed
to commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
sections of the people and to adversely affect the harmony
H amongst different sections of the people, i.e. Hindus and
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1071
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
Muslims by using bombs, dynamites, handgrenades and A
other explosive substances like ROX or inflammable
substances or fire-arms likP. AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
persons, loss of or damage to and disruption of supplies B
of services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed
to smuggle fire-arms, ammunition, detonators, hand
grenades and high explosives like ROX into India and to
distribute the same amongst yourselves and your men of c
confidence for the purpose of committing terrorist acts and
for the said purpose to conceal and store all these arms,
ammunition and explosives at such safe places and
amongst yourselves and with your men of confidence till
its use for committing terrorist acts and achieving the
0
objects of criminal conspiracy and to dispose off the same
as need arises. To organize training camps in Pakistan
and ln India to import and undergo weapons training in
handling of arms, ammunitions and explosives to commit
terrorist acts. To harbour and conceal terrorists/
coconspirators, and also to aid, abet and knowingly E
facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance
financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the F
aforesaid objectives of the crimin<il conspiracy and that
?on 12.03.1993 were successful in causing bomb
explosions at Stock Exchange Building, Air India Building,
Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel
Centaur at Santa Cruz, Zaveri Bazaar, Katha Bazaar, G
Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena
Bhavan, Plaza Theatre and in lobbing handgrenades at
Macchimar Hindu Colony.
Mahirn and at Bay-52, Sahar International Airport which left H
1072 SUPREME COURT REPORTS (2013] 15 S.C.R
A more than 257 persons dead, 713 injured and property
worth about Rs.27 crores destroyed, and attempted to
cause bomb explosions at 'Naigaum Cross Road and
Dhanji Street, all in the city of Bombay and its suburbs i.e.
within Greater Bombay. And thereby committed offences
B punishable under Section 3(3) TADA and Section 120-B
of Indian Penal Code, 1860 (hereinafter referred to as the
IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA
and read with Sections 302, 307, 326, 324, 427, 435,
436, 201 and 212 IPC and offences under Sections 3 and
c 7 read with Sections 25 (1-A), (1-B)(a) of the Arms Act
1959, Sections 9B (l)(a)(b)(c) of the Explosives Act, 1884,
Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances
Act, 1908 and Section 4 of the Prevention of Damage to
Public Property Act, 1984 and within my cognizance."
D D. Additionally, he has been charged for abetting and
facilitating acts that were preparatory in nature, for the
terrorist acts, by acquiring and distributing AK-56 rifles in
the city of Bombay and its suburbs, their magazines,
ammunition and also hand grenades to co-accused Sanjay
E Dutt (A-117) and Salim Kurla (Juvenile) at the instance of
Anis Ibrahim Kaskar, an Absconding Accused (hereinafter
referred to as 'AA'), brother of notorious smuggler Dawood
Ibrahim, and Abu Salim for committing the terrorist acts
punishable under Section 3(3) TADA.
F
E. The appellant (A-41) was also charged with, being in
the unauthorised possession of one AK 56 rifle, 635
rounds of ammunition, 10 magazines of AK 56 rifle, and
25 hand grenades as the same were recovered in the
notified area at his instance, and thus he has been charged
G
under Section 5 TADA.
F. The appellant was further charged under Section 6
TADA, Sections 3 & 7 read with Section 25(1-A), (1-B)(a)
of the Arms Act, Section 4(b) of the Act 1908 and Section
H 9-8(1 )(b) of the Act 1884, for unauthorisedly being in
IBRAHIM MUSA CHAUHAN @BABA CHAUHAN v. 1073
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
possession of the aforesaid arms with the intention to aid A
terrorist acts.
G. The prosecution has examined a large number of
witnesses and produced a large number of documents to
prove its case, and upon conclusion of the trial, the B
Designated Court acquitted the appellant of the umbrella
charge of conspiracy i.e. charge No. 1. However, he was
convicted for the second charge i.e. smaller conspiracy
under Section 3(3) TADA and was awarded a sentence
of 8 years RI alongwith a fine of Rs.1,00,000/-, and in . C
default of payment of fine, to suffer further RI for a period
of three years; under Section 5 TADA, he was sentenced
to suffer RI for 1O years alongwith a fine of Rs.50,000/-,
and in default of payment of fine, to suffer further RI for a
period of one year; under Section 6 TADA, he was
sentenced to suffer RI for 10 years and a fine of D
Rs.1,00,000/-, and in default of payment of fine, to suffer
further RI for a period of 3 years; under Section 4(b) of the
Act 1908, he was sentenced to suffer RI for four years
alongwith a fine of Rs.25,000/- and in default of payment
of fine, to suffer further RI for a period of 6 months, under E
Section 9-B (1)(b) oft~e Act 1884, he was sentenced to
suffer RI for one year alongwith a fine of Rs. 2,000/- and
in default of payment of fine, to suffer further RI for two
months. All the sentences were directed to run
concurrently. However, under Sections 3 and 7 read with F
Section 25 (1-A)(1-B)(a) of the Arms Act, the appellant
was convicted, but no separa'te sentence was awarded.
Hence, this appeal.
3. Shri Shree Prakash Sinha, learned counsel for the G
appellant has submitted that the confessional statement of the
appellant as well as those of the co-accused were recorded
by the police forcibly, without meeting the requirements of
Section 15 TADA and Rule 15 of the rules framed thereunder.
H
1074 SUPREME COURT REPORTS [2013] 15 S.C.R.
A Thus, the same cannot be relied upon. The recoveries
purported to have been made were also planted by the
investigating agency and cannot be relied upon. The
Designated Court erred in convicting the appellant. Thus, the
appeal deserves to be allowed.
B
4. Shri Mukul Gupta, learned Senior counsel appearing for
the respondent, has opposed the appeal contending that the
confessional statement of the appellant as well as those of the
co-accused, were recorded in strict adherence to statutory
C requirements i.e. Section 15 TADA and Rule 15 of the rules
framed thereunder. The appellant and co-accused have made
their confessional statements voluntarily and the conviction of
the appellant can be maintained on the sole basis of the
confessional statement of the appellant himself. Moreover, a
large number of co-accused have named him and have
D assigned to him overt acts. The recoveries have also been
made strictly in accordance with the requirements of Section
27 of the Indian Evidence Act, 1872 (hereinafter referred to as
the 'Evidence Act') and there is no reason to disbelieve the
same, as the same were made at the instance of the appellant
E i.e. on the basis of his disclosure statement made voluntarily.
Thus, the appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
F 6. Evidence against the appellant (A-41):
(a) Confessional statement of the appellant himself.
(b) Confessional statement of co-accused Samir
G Ahmed Hingora (A-53).
(c) Confessional statement of co-accused Sanjay Dutt
(A-117).
(d) Confessional statement of Manzoor Ahmed Sayyed
H Ahmed (A-89).
IBRAHIM MUSA CHAUHAN @BABA CHAUHAN v. 1075
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
(e) Deposition of Pandharinath Hanumanth Shinde A
(PW.218).
(f) Deposition of Laxman Loku Karkare (PW.45).
(g) Deposition of Hari Pawar (PW.596).
B
(h) Deposition of Prem Kishan Jain (PW.189).
7. Confessional Statement of Baba Musa Chauhan
(A-41 ):
c
His confessional statement shows that he was well
acquainted with the co-accused Salim who used to extort
money, and was working for Anis Ibrahim Kaskar (M), brother
of notorious smuggler and gangster Dawood Ibrahim. Salim
told the appellant (A-41) on 15.1.1993 to arrange a garage, with D
respect to which, the appellant (A-41) initially expressed his
inability, but after receiving a phone call from Anis Ibrahim
Kaskar in the evening at about 7-7.30 P.M., wherein Salim was
asked to go to the Magnum Video Office, and meet Samir
Ahmed Hingora (A-53). The appellant (A-41) wen~ there E
alongwith Salim in a blue coloured Maruti 800 Car, and with
the help of Samir Ahmed Hingora (A-53) and his partner
Haneef, they searched for an appropriate garage. At this time,
Salim told the appellant (A-41) that he would keep 2-3 AK 56
rifles with him (A-41) for about 2-3 days, and asked him to stay F
at home, so that he could bring the arms. On the subsequent
morning, Salim came to the h'ouse of the appellant (A-41). Abu
Salim asked the appellant (A-41) to drive a white coloured
Maruti Van which was parked near the Arsha Shopping Centre
and to come near the Magnum office. Salim drove ahead of G
him in a blue coloured Maruti, after handing over the keys of
the van to the appellant (A-41). Appellant (A-41) reached close
to the Magnum office in the van. Salim and Samir Ahmed
Hingora (A-53) then sat in the van driven by the appellant (A-
41 ), and all those three persons reached the house of co-
H
1076 SUPREME COURT REPORTS [2013] 15 S.C.R.
A accused Sanjay Dutt (A-117). Sanjay Dutt (A-117) embraced
Salim and Samir Ahmed Hingora (A-53). Salim introduced
Sanjay Dutt (A-117) to the appellant (A-41). Sanjay Dutt cleared
the passage leading to the garage, shifting the vehicles parked
therein to the other side. The van which the appellant (A-41)
8 had driven was taken to the garage in reverse gear. Salim
opened the cavity of the car whicti was under its back seats
with the aid of a 'panna', and from within, removed 9 AK 56
rifles one by one, and then opened the inside lining of the front
door of the car and removed from there 80 hand grenades
C without pins, then he removed 1500/2000 bullets from the back
door. These bullets were packed in brown coloured paper, in
packets of 25-30 bullets, which were held together by rubber
bands. The hand grenades were also packed in brown coloured
paper. There were 56 magazines in the lining of the back door
of the car. Sanjay Dutt (A-117) asked Salim why the hand
D grenades had been brought there, as it might create a problem
in case the same blew up. Salim explained to Sanjay Dutt (A-
117) that as the hand grenades did not have pins nothing would
happen. Salim made a list of all the articles and asked the
appellant (A-41) to keep 3 rifles, 9 magazines, 450 bullets and
E 20 hand grenades in Sanjay Dutt's Fiat car (A-117) . The
appellant (A-41) kept the said arms and ammunition as directed
by Salim in the dickey of Sanjay Dutt's car (A-117), locked the
dickey and put the key in his pocket. Samir Ahmed Hingora
(A-53) kept 20 hand grenades in his car after packing the same
F into a bag and the appellant (A-41) kept 3 rifles, 16 magazines,
25 hand grenades and 75.0 bullets and came out with Samir
Ahmed Hingora (A-53). The appellant (A-41) left with the
remaining arms and ammunition kept in a bag, which he laid
under his bed. Next day, the appellant (A-41) loaded all the
G bullets in the magazines of the rifles. He could not contact Salim
to take away the said arms as no one picked up Salim's
telephone. Subsequently, the appellant (A-41) was told by
Salim's wife that Salim had gone out of India and that she
would talk to him after 2-3 days. The appellant (A-41) told her
H that Salim had kept some computer parts with him (A-41) and
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1077
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
that the same were to be returned to him at the earliest. A-41 A
went to the house of Salim and told his wife that he wanted to
return the said goods at the earliest. On the same night, A-41
received a telephone call from Dubai from Salim informing him
that he was coming back to Bombay within 1-2 days, and that
after coming back he would collect all the goods. However, B
Salim did not return from Dubai. So the appellant (A-41) called
up his brother-in-law in Dubai and asked him to talk to Salim,
and request him to collect his goods, who subsequently
informed the appellant (A-41) that Salim was likely to come to
Bombay within a day or two and that he would contact him. c
Immediately thereafter, riots took place in Bombay. On
16.1.1993 the appellant (A-41) received a telephone call from
Salim, who asked him to talk to Anis Ibrahim Kaskar (AA). A-
41 contacted Anis Ibrahim, who told the appellant (A-41) to give
two guitars and six 'tars' (cord) to Salim Kurla and also, to give D
him some 'Kadis' and on being told that the 'Kadis' had already
been attached to the broom (Jaadu), Anis Ibrahim asked the
appellant to give only 6 'tars'. The appellant (A-41) told Anis
Ibrahim Kaskar that he did not know Salim Kurla. Then Anis
Ibrahim Kaskar told him that Salim Kurla knew the appellant (A- E
41 ), and that he would come to the Andheri Post Office in the
front of his house. Thus, on his instructions, the appellant (A-
41) handed over two rifles and 6 loaded magazines to Salim
Kurla. Salim Kurla had told the appellant that these arms were
to be given to some one in Beharam Pada. After 2-3 days,
Salim returned to Bombay and came to the appellant (A-41) F
with his brother Kalam . .The appellant (A-41) told him that he
had 1 rifle, 25 hand grenades, the remaining bullets and 1O
magazines etc. The appellant (A-41) asked Salim to take these
remaining articles from him. However, he promised to take
them back in the evening, but then did not come for two days. G
During this period, the appellant (A-41) learnt from the
newspapers that Salim had been arrested by the police while
trying to extort money from a Gujarati person. Salim himself
came to see the appellant (A-41 ), an~ told him (A-41) that Salim H
1078 SUPREME COURT REPORTS [2013] 15 S.C.R.
A Kurla could disclose the name of the appellant (A-41) to the
police, and hence, he advised the appellant (A-41) not to
disclose Salim's name. The appellant (A-41) became
frightened, as he was in the possession of arms. Thus, he
immediately shifted the arms to Iqbal Tunda and informed Salim
B to keep the remaining goods with someone without disclosing
his (A-41) name. Salim came to see the appellant (A-41), and
he had with him 30 loaded magazines which were wrapped in
a plastic/polythene bag and then kept in a cloth bag. He left
these magazines with the appellant (A-41) and said that he
c would send Ayub to collect this ammunition. from him.
Accordingly, the next night at 9-9.30 p.m. Ayub came with arms
including one AK 56 rifle. He kept the magazine and bag in one
place. Though, he returned a part of the arms and ammunition,
some material still remained with the appellant (A-41 ), which
was kept in another place. He returned 30 loaded magazines
0
to Salim and Ayub which they kept inside the dickey of their
scooter and left.
Salim Kurla was arrested after the Bombay blast and upon
his disclosure, the appellant (A-41) was arrested on 28.3.1993.
E Later. on, his father obtained the bag which he had kept with
Iqbal Tunda through Hazi Ismail, and the same was produced
before the police. He (A-41) further stated that he was not
interested in using any arms or keeping the same with him,
rather he had been forced to keep the same by the other co-
F accused, on the pretext that the weapons and ammunition would
be collected from him within 2-3 days.
The appellant (A-41) made a retraction statement on
21.12.1993.
G 8. The Confessional Statement of Samir Ahmed
Hingora CA-53):
He made a confession that on 15.1.1993, Anis Ibrahim
Kaskar had telephoned him stating that the appellant (A-
H 41) and Salim would bring one vehicle loaded with
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1079
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
weapons, and that he was to make arrangements for the A
off-loading and handing over of some weapons to Sanjay
Dutt (A-117), and that thereafter, some weapons would be
taken back by them for distribution to other persons. Since
his partner Haneef was not in office, he took them to his
house. Haneef talked to Anis Ibrahim Kaskar (AA) in Dubai B
over the telephone, and expressed his unwillingness to
carry out his instructions. However, upon the request of
Salim, he (A-53) agreed to take him to Sanjay Dutt's house
while he was talking to Anis Ibrahim Kaskar over the
telephone about the said weapons. Sanjay Dutt hugged c
Salim and asked him to come the next day with the
weapons.
The next day, he (A-53) went to his office and met Salim
and the appellant (A-41) and then reached the house of Sanjay
Dutt (A-117). Sanjay Dutt asked his driver Mohd. to remove all D
the vehicles from the garage, and the appellant (A-41) then
parked his Maruti van there and asked for a spanner and screw
driver. Sanjay Dutt (A-117) asked Mohd. to bring the tool kit
from his car and give it to the appellant (A-41). Salimwrapped
three AK 56 rifles and some magazines in a bed sheet as per E
the request of Sanjay Dutt (A-117), and Salim also gave Sanjay
Dutt 20-25 hand grenades which were put in a black coloured
bag along with other ammunition.
9. Confessional statement of Sanjay Dutt (A-117): F
He admitted that one day in the month of January around
9-9.30 p.m., Haneef and Samir Kurla had come to his house
alongwith Salim. He had met Salim once or twice earlier also.
They told him (A-117) that they would be coming the next day
with the weapons that were to be delivered to him and then went G
away. The next morning, Samir, Haneef and Salim came to his
house alongwith one other person, whom he did not know. They
had come in a Maruti Van and parked the same in the tin shed
which was used by him for parking his own vehicles. One
person was sitting inside the Maruti Van. After about 15-20 H
1080 SUPREME COURT REPORTS . [2013] 15 S.C.R.
A minutes, he took out three rifles, and they told him that the same
were AK-56 rifles. He then brought some cloth from his house
and gave it to them. Salim and the person who had come with
.him, wrapped the rifles in the cloth, and thereafter, gave the
same to him. He stated that he could identify, the person sitting
B in the car and also the hand grenades. He kept these rifles and
the ammunition in the dickey of his Fiat Car No.MMU 4372.
10. Confessional statement of Manzoor Ahmed
Sayyed Ahmed (A-89):
C He confessed that he had a blue coloured Maruti 800
bearing No. M.P.23 B-9264. On 22nd/23rd January, 1993, in
the evening, Salim contacted him over the telephone and called
him to his office at Santacruz. After reaching there he took him
(A-89), to the office of the appellant (A-41) at Monaz Builders
D and Builders, S.V. Road, Andheri, Opposite the Post .Office.
He introduced (A-89) to the appellant (A-41 ), and gave the key
of his car to the appellant (A-41) and after about half an hour
the appellant (A-41) came back and parked the said car outside
the office, and gave the key to Salim and told him that he had
E kept the bag of weapons in the car. When Salim and (A-89)
entered the car, he (A-41) saw that a black bag containing
weapons, was kept on the rear seat of the car.
11. Deposition of Pandharinath Hanumanth Shinde
(PW.218) :
F
He was the 9onstable posted at the house of Sanjay c;>utt
(A-117) for security. His statement was recorded in court on
6.11.1997, wherein he deposed about the visit of the appellant
(A-41) alongwith Salim and others, to the house of Sanjay Dutt
G (A-117). He identified the appellant in a Tl Parade held after
57 days, as well as in court. He also identified the two persons
alongwith Sanjay Dutt. He supported the prosecution's case by
saying that Sanjay Dutt had instructed the witness to go to Gate
no. 1 for duty, which he had followed. The happenings at Gate
H No.2 would not be visible to him, while he was standing near
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1081
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
the main Gate No.1. It was for this reason that he had been A
shifted to a place from where he could not possibly see what
was happening.
12. Deposition of Laxman Loku Karkare CPW.45) - He
was a panch witness in the recovery made on 1.4.1993, When B
he reached the police station and· had agreed to become a
panch witness, there were some constables and one more
person, who had disclosed that his name was Ibrahim Musa
Chauhan @ Baba Chauhan (A-41 ). He had given the address
of his residence. The appellant (A-41) had disclosed to the
police in his presence, that he had AK 56 rifles, magazines, C
grenades and cartridges which he had been concealed, and
that he would show them the place of concealment and also
produce the weapons. The panchanama was signed by this
witness. They reached the place as was explained to them by
the appellant (A-41) by police jeep, which was near Andheri Bus D
Terminus. Subsequently, they found themselves in front of a
chaw! owned by the appellant (A-41 ). Then the appellant took
them to a lane which was being used as a dumping ground
for waste material, and removed a bag from underneath a
heap of waste. He removed an AK 56 rifle, 635 cartridges and E
25 hand gr.enades, and handed over the same to P.I. Pawar
. who examined all the articles. The seizure panchanama was
prepared by P.I. Pawar.
In his cross-examination he deposed. that he did not F
remember that there was a street light at a distance of 20 feet
on the northern side of the open space used as a dustbin-. The
space was full of waste material when he had gone alongwith .
the police party and the accused. There were no left over
eatables dumped at the place and it was thus, not smelling. P.I. G
Pawar alongwith the accused had entered the open space. The
open space being used as a dustbin was 4 ft. x 4 ft. The
accused brought a bag out to the lane from the dustbin. The
bag was not in the hands of P.I. Pawar. The accused (A-41)
had removed the bag from the dustbin in their presence. He
H
1082 SUPREME COURT REPORTS [2013] 15 S.C.R.
A was standin9 in the lane watching the accused removing the
bag from the dustbin.
13. Deposition of Hari Pawar <PW.596) - He is the Police
officer who made the recovery at the instance of the appellant
(A-41 ), in the presence of Pan ch witnesses. He has
8
corroborated the version of recovery as stated by PW.45.
14. Deposition of Prem Kishan Jain {PW.189)- He had
recorded the confessional statement of the appellant. He
deposed that the appellant (A-41) had been brought from
C police custody and sent back to police custody. The witness
explained that he was fully aware of the requirement of
recording a confession and that he had complied with all the
said requirements while recording the· confession of the
appellant.
D
15. In State of Himachal Pradesh v. Jeet Singh, (1999)
4 sec 370 this court dealt with the issue of recovery from
the public place and held:
"21. The conduct of the accused has some relevance in
E the analysis of the whole circums.tances against him. PW
3 Santosh Singh, a member of the Panchayat hailing from
the same ward, said in his evidence that he reached Jeet
Singh's house at 6.15 a.m. on hearing the news of that
tragedy and then accused Jee! Singh told him that
F Sudarshana complained of pain in the liver during the early
morning hours. But when the accused was questioned by
the trial court under Section 313 of the Code of Criminal
Procedure, he denied having said so to PW 3 and further
said, for the first time, that he and Sudarshana did not
G sleep in the same room but they slept in two different
rooms. Such a conduct on the part of the accused was
taken into account by the Sessions Court in evaluating the
incriminating circumstance spoken to by PW 10 that they
were in the same room on the fateful night. We too give
H accord to the aforesaid approach made by the trial court."
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1083
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
16. Similarly, in State of Maharashtra v. Bharat Fakira A
Dhiwar (·2002) 1 SCC 622, this Court held:
"22. In the present case the grinding stone was found in
tall grass. The pants and underwear were buried. They
were out of visibility of others in normal circumstances. B
Until they were disinterred, at the instance of the
respondent, their hidden state had remained
unhampered. The respondent alone knew where they
were until he disclosed it. Thus we see no substance in
this submission also.•
c
17. In view of the above, it cannot be accepted that a
recovery made from an open space or a public place which was
accessible to everyone, should not be taken into consideration
· for any reason. The reasoning behind it, is that, it Will be the
accused alone who will be· having knowledge of the place, D
where a thing is hidden. The other persons who had access to
the place would not be aware of the fact that an accused, after
the commission of an offence, had concealed contraband
material beneath the earth, or in the garbage.
E
18. In Durga Prasad Gupta v. State of Rajasthan thr. CBI
(2003) 12 SCC 257, this Court explained the meaning of
possession as:
"The word "possession" means the legal right to
possession (See. Heath v. Drown). In an interesting case F
it was 9bserved that where a person keeps his f\rearm in
his mother's flat which is safer than his own home, he must
be considered to be in possession of the same. (See
Sullivan v. Earl of Caithness, (1976) 1 All ER 844.)
G
Once possession is established, the person who claims
that it was not a conscious possession has to establish it,
because how he came to be in possession is within his
special knowledge."
H
1084 SUPREME COURT REPORTS [2013] 15 S.C.R.
A 19. In Sanjay Dutt v. State thr. CBI, Bombay(//), (1994)
5 SCC 410 this Court considered the statutory provisions of
Section 5 TADA and in this regard held:
"19. The meaning of the first ingredient of 'possession'
of any such arms etc. is not disputed. Even though the
B
word 'possession' is not preceded by any adjective like
'knowingly', yet it is common ground that in the context
the word 'possession' must mean possession with the
requisite mental element, that is, conscious possession
and not mere custody without the awareness of the nature
c of such possession. There is a mental element in the
concept of possession. Accordingly, the ingredient of
'possession' in Section 5 of the TADA Act means
conscious possession. This is how the ingredient of
possession in similar context of a statutory offence
D importing strict liability on account of mere possession
of an unauthorised substance has been understood.
)()()()()()(
25. The significance of unauthorised possession of any
E
such arms and ammunition etc. in a notified area is that
a statutory presumption arises that the weapon was meant
to be used for a tefforist or disruptive act. This is so,
because of the proneness of the area to terrorist and
disruptive activities, the lethal and hazardous nature of
F the weapon and its unauthorised possession with this
awareness, within a notified area. This. statutory
presumption is the essence of the third ingredient of the
offence created by Section 5 of the TADA Act. The
question now is about the nature of this statutory
G presumption.
xxxxxxx
27. There is no controversy about the facts necessary to
constitute the first two ingredients. For proving the non-
H
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1085
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
existence of facts constituting the third ingredient of the A
offence, the accused would be entitled to rebut the above
statutory presumption and prove that his unauthorised
possession of any.sw;;h arms and ammunition etc. was
wholly unrelated to any terrorist or disruptive activity. and
the same was neither used nor available in that area for B
any such use and its availability in a "notified area" was
innocuous. Whatever be the extent of burden on the
accused to prove the non-existence of the third
ingredient, as a matter of law he has such a right which
flows from the basic right of the accused in every c
prosecution to prove the non-existence of a fact essential
to constitute an ingredient of the offence for which he is
being tried. If the accused succeeds in proving non-
existence of the facts necessary to constitµte the third
ingredient alone after his unauthorised possession of any. D
such arms and ammunition etc. in a notified area is
proved by the prosecution, then he cannot be convicted
under Section 5 of the TADA Act and would be dealt with
and punished under the general Jaw. It is obviously to
meet .situations of this kind that Section. 12 was
incorporated in the TADA Act." E
20. Therefore, the only requirements under the statutory
provisions are, that (1) a person must be in possession of some
contraband material; (2) the person must have knowledge of
his possession Le. conscious possession; (3) it should be in F
the notified area. Once possession is established, the burden
is oh the accused to show that he was not \n conscious
possession.
21. After considering the entire evidence on record, the G
learned Designated Court came to the .conclusion that the
appellant (A-41) was aware that the arms and ammunition
which were handled by him were to be used during riots against
Hindus. The father of the appellant (A-41 }, had collected a bag
of contraband kept with Iqbal Tunda through Haji Ismail, and
H
1086 SUPREME COURT REPORTS [2013] 15 S.C.R.
A handed over the same to the police. The Designated Court held
that the confessions of the co-accused established the role
played by the appellant (A-41) in supplying weapons to A-117.
The confession of A-117 does not reveal the name of the
appellant (A-41 ), but the same is obvious as A-117 did not
B know the appellant prior to the said meeting. Thus, it is clear
that the fourth person referred to in the confession of A-117 is
none other than the appellant (A-41 ). The Court held that a
consideration of the entire evidence leads to the inescapable
conclusion that the appellant (A-41) was in unauthorised
c possession of AK-56 rifles, magazines, ammunition and hand
granades, and that he had distributed a part of the material to
A-117, kept the hand grenades with himself, and had handed
over an AK-56 rifle to Salim Kurla (dead). All the said acts were
committed by him at the behest of Salim (AA) and Anees
D Ibrahim, and thus he has committed an offence punishable
under Sections 3(3) and 5 TADA. Being in the unauthorised
possession of weapons in a notified area, and having failed to
rebut the presumption i.e. that the same were being for the
purpose of the commission of a terrorist act, he is liable to be
convicted under Section 5 TADA.
E
However, considering that no nexus was established
between the material possessed and distributed by the
appellant (A-41 ), and the material smuggled into the country by
the main conspirators, and there being absolutely no other
F material on record to reveal the nexus between the appellant
(A-41) and any other co-accused involved in the said
conspiracy, it was held that he could not be held guilty for the
offence of conspiracy i.e. for the first charge. The acts
committed by the appellant (A-41) do not reveal that the same
G . were being done for the purpose of furthering the object of the
conspiracy.
22. We have considered the entire evidence on record and
come to the following conclusions:
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1087
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
i. The appellant (A-41) was well acquainted with Abu Salim A
(AA) who was working with Anis Ibrahim Kaskar (AA).
ii. The appellant (A-41) was asked to arrange a garage,
and hence searched for an appropriate garage with co-
accused Salim, Hingora (A-53) and his partner Haneef.
B
iii. The appellant was introduced to co-accused Sanjay Dutt
(A-117) at the residence of the latter.
iv. The appellant witnessed the handing over of contraband
to the co-accused (A-117). C
v. The appellant was in conscious possession of certain
contraband items.
vi. The recovery of the contraband material which was
effected upon the making of a disclosure statement by the D
appellant, took place at a dumping ground for waste.
23. The Designated Court convicted the appellant (A-41)
on the basis of the evidence as has been hereinabove stated.
We find no cogent reason to interfere with the decision of the E
Designated Court. The 'appeal is hereby, accordingly
dismissed.
CRIMINAL APPEAL NOS.1129-1130 OF 2007
Altaf Ali Sayed ... Appellant
F
Versus
State of Maharashtra through CBI ... Respondent
24. These appeals have been preferred against the
judgments and orders dated 24.11.2006 and 5.6.2007 passed
by a Special Judge of the Designated Court under the TADA G'
for Bombay Blast, Greater Bombay, in Bombay Blast Case No.
1/1993 by which the appellant has been convicted under
Section 3(3) TADA and sentenced for 10 years rigorous
imprisonment and a fine of Rs.50,000/- and in default of
H
1088 SUPREME COURT REPORTS [2013] 15 S.C.R.
A payment of fine to further suffer rigorous imprisonment of one
year. He has further been convicted for the offence under
Section 5 TADA and sentenced to 10 years rigorous
imprisonment with a fine of Rs.2,00,000/- and in default of
payment of fine to suffer further rigorous imprisonment for 3-1 /
B 2 years.
Both the sentences were directed to run concurrently.
25. Facts and circumstances giving rise to these appeals
are that:
c
A. In addition to the main charge of conspiracy, the
appellant (A-67) was charged for arranging 13 air tickets in
order to facilitate the traveling of the accused persons for
training of handling arms, ammunition and explosives. He has
D also been charged for knowingly and intentionally storing 2 suit
cases containing arms and ammunition, thereby committing the
offence punishable under Section 3(3) TADA. The appellant
was further charged for possessing arms and ammunition in
the notified area of Greater Bombay which were recovered at
E the instance of Mohd. Hanif Usman Shaikh, thereby committing
the offence under Section 5 TADA. And lastly, he was charged
with an intent to aid terrorist acts thereby committing an offence
under Section 6 TADA.
B. After conclusion of the trial, the learned Designated
F Court under TADA convicted and sentenced the appellant as
referred to hereinabove.
·Hence, these appeals.
26. Shri Mukul Rohtagi, learned senior counsel appearing
G on behalf of the appellant, has submitted that the appellant had
not been found guilty of first charge i.e. larger conspiracy and
the allegations against him had been regarding keeping
possession of handgrenades, ·detonators and storing the
H
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1089
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
suitcases which had been recovered on his discovery A
statement. The recovery memo of the alleged articles had not
been signed by the appellant and even the story of handing over
the two bags to the appellant is false for the reason that it has
been alleged that Amzad Ali Aziz Meharbaksh had given four
bags which were returned to Yakub Memon (A-1) as Amzad B
Ali Aziz Meharbaksh had been discharged by this Court. Thus,
the evidence of Mohd. Hanit Usman Shaikh (PW.282) in this
regard cannot be relied upon. More so, the prosecution could
not produce all 105 handgrenades, alleged to have been
recovered from the possession of the appellant as there had c
been shortage of 20 handgrenades. More so, no explanation
had been made by the prosecution as how the key-maker was
present on the scene and who had brought him. More so, the
panch witness could not be relied upon because his brother is
an employee in arms department in police and thus, he could D
not termed to be an independent witness. The alleged recovery
of articles 42 and 43 had not properly been sealed, therefore,
there was a possibility of tampering with the contents· of the
suitcases. Thus, the learned Designated Court erred in
convicting and sentencing the appellant. Thus, the appeal
E
deserves to be allowed.
27. Per contra, Shri Mukul Gupta, learned senior counsel
appearing on behalf of the State, has submitted that there is
sufficient material on record that in the presence of Yakub
· Memon (A-1 ), Amzad Ali Aziz Meharbaksh had told the F
appellant (A-67) that goods belonging to Yakub Memon (A-1)
were to be shifted to some other place and, subsequently,
Yakub Memon (A-1) asked appellant (A-67) as to whether the
bags had been delivered to him by Amzad Ali Aziz Meharbaksh.
The tickets for the co-accused were arranged by Yakub Memon . G
(A-1) through the appellant by sending money and passports
to him through Rafiq Madi (A-46). It was Yakub Memon (A-1)
who sent three bags to Rafiq Madi (A-4.6) through appellant (A-
67). Yakub Memon (A-1) had instructed on telephone to the
H
1090 SUPREME COURT REPORTS (2013] 15 S.C.R.
A appellant for sending the bags to Al-Husseini Building i.e.,
residence of Yakub Memon (A-1) and his family. The recovery
has been made in accordance with law and there is sufficient
material against the appellant to convict him for the aforesaid
offences, hence, no interference is required.
B
28. We have considered the rival submissions made by
the learned counsel for the parties and perused the records.
29. Evidence against the appellant:
c (a) Confessional statement of the appellant (A-67)
(b) Confessional statement of Mohd.Rafiq Madi
Biyariwala(A-46)
(c) Deposition of Mohd. Hanit Usman Shaikh (PW-282)
D
(d) Deposition of Prem Kishan Jain (PW-189)
(e) Deposition of Shri K.L. Bishnoi (PW-193)
(f) Deposition of S.J. Salam, Panch witness (PW-37)
E
(g) Deposition of Waman Kulkarni (PW-662)
(h) Deposition of Woman Dotlkar (PW-420)
(I) Deposition of Asit Devji (PW-341)
F
Q) Deposition of Anil Prabhakar (PW-506)
(k) Memo Panch Ex. 108
(I) Discovery P~nch. Ex. 109
G
30. Confessional statement of the appellant (A-67):
His confessional statement was recorded on 16.4.1993 by
Prem Kishan Jain (PW-189), D.C.P. Commandant SRP(F)
Group-VI Dhule. The appellant (A-67) deposed that he was a
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1091
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
recruiting agent under the name of Altaf Enterprises. He knew A
Amzad Ali Aziz Meherbux (Discharged accused) and Yakub
Memon (A-1 ). Amzad sent 4 bags of Yakub to be kept with him
as per their earlier meeting. He asked them as to what was in
the bag and Amzad told him that it contained weapons etc. He
also booked tickets for 15-16 persons at the instance of Yakub B
for which passports and payments were received through Rafiq
Madi (A-46). After 10-12 days, Rafiq (A-46) sent him 3 bags
of Yakub to be kept with him. ~hen he asked, Rafiq told him
that they contained bullets, grenade etc. On 10.3.1993 he
returned 5 bags at Al-Husseini Building at instance of Yakub c
Memon. He kept the remaining two bags containing weapons
and explosives with Mohd. Hanif. The said two bags were
recovered by police on 26.3.1993 at his instance from Mohd.
Han if.
31. Confessional statement of Mohd. Rafiq Madi D
Biyariwala !A-461: The said accused stated that on one
occasion the appellant (A-67) was delivered Rs.50,000/- and
on another occasion Rs.62,000-63,000/- at the instance of
Yakub Abdul Razak Memon (Ac1). On 14-15 February, he saw
the appellant (A-6.7) taking away 3 suit-cases in his Maruti Van E
from nearby garage below the building of Tiger Memon (AA).
Thus, it came in evidence through the confessional
statements of A-67 and A-46 that four suitcases were kept in
the jeep, which was parked in the residential premises of Amjad F
Abdul Aziz Meherbux (A-68), (discharged accused) by Abdul
Gani Ismail Turk (A-11) and Anwar Theba (AA) at the instance
of Yakub Abdul Razak Memon (A-1). Subsequently, the
appellant (A-67) took away the four suit cases and kept them
in his office, at the instance of Yakub Abdul Razak Memon (A- G
1). Later, Rafiq Madi Musa Biyariwala (A-46) brought three
more suit cases and kept them at the office of the appellant
(A-67). Out of the total seven suit 'cases, appellant (A-67)
delivered five suit cases to Yakub Abdul Razak Memon (A-1)
H
1092 SUPREME COURT REPORTS [2013] 15 S.C.R.
A at Al Husseini building. Thus, two suit cases remained in his
possession. It has further been disclosed by the appellant that
due to the involvement of Yakub Abdul Razak Memon (A-1) in
the case, he kept the said suit cases at the residence of Mohd.
Hanit Usman Shaikh (PW.282). After the arrest of the appellant,
s he made a disclosure under Section 27 of Evidence Act (Exh.
108 dt. 26.3.1993) and led A nil Prabhakar (PW-506) and
Suresh Satam (PW-37) to the residence of Mohd. Hanit Usman
Shaikh (PW-282) from where the following articles were
recovered and taken into possession vide Panchnama Ext.
C 109. The suitcases contained arms and ammunition in large
quantities.
32. Deposition of Mohd. Hanit Usman Shaikh (PW-
282):
D Mohammed Hanif Usman Shaikh (PW-282) in his
statement disclosed that the appellant (A-67) had given him two
suitcases in his office on 22.3.1993 at 9.00 P.M. in closed
condition and the appellant (A-67) had asked the witness to
keep the said two suitcases and also told that the suitcases
E were containing Fax machines ..He has further revealed that
after making th~ recovery of the suitcases from him the police
got them open through the mechanic. The handgrenades were
taken out and chits were affixed on each of the handgrenade
recovered from the bags. But, Mr. Mukul Rohtagi, learned senior
F counsel for the appellant, has submitted that after the recovery
of handgrenades, it was not possible to affix chits on each of
the handgrenade within such a short time of 50-55 minutes
even if 20-30 police officials were involved in that activity. The
bundles of wire were kept together and wrapped in a paper.
G The said packet was tied by means of a string, and the seal of
lac was put on the said packet. 65 handgrenades from the
bigger suitcase were kept in the same bag alongwith the
packet of the bundles of wires, and 40 handgrenades from the
small bag were also kept in the same suit case, and the same
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1093.
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
were tied and sealed. He has further complained that during A
the course of his custody, his statement was recorded by the
police under Section 6 but it was not read over and. explained
to him by the police either in Hindi, Urdu or in any other
language. He was detained by the '.)olice in March 1993 for
about 20-25 days and was not allowed to return to his house. B
Moreover, he was tutored and was asked to involve the
appellant (A-67) in this case. The witness had been attending
the office of the appellant (A-67) in connection with taking the
persons abroad. He has also revealed that the two suitcases
recovered had been shown to him and he kept their description c
in mind. Though, the said witness had not been turned hostile
· but, he was permitted to ask some questions in the nature of
cross-examination regarding the happening at the Mahim
Police Station in. the month of February/March 1993. On the
basis of the above, it has been submitted by Mr. Mukul Rohtagi 0
that the evidence given by Mohammed Hanif Usman Shaikh
(PW-282) does not inspire confidence and cannot be relied
upon .
. 33. Deposition of Premkrishan Dayakrishan Jain
!PW.189): E
Premkrishan Dayakrishan Jain (PW.189), D.C.P.
Commandant, S.R.P. (F) Group-VI, Dhule, recorded the
· confessional statement of appellant (A-67). He deposed that
when. the confessional statement of the appellant (A-67) was F
recorded on 16th and 18th of April, 1993, he was produced
before the.said witness by PSI Patil accompanied by a police
party. The witness asked the appellant his name and then as
instructed by the witness, PSI Patil and police party left the
chamber after removing handcuffs of the appellant (A-67)
F
and being fully satisfied that his confession was voluntarily
recorded. The appellant did not raise any complaint against
anybody and said that he was giving his confessional statement
voluntarily without any pressure or fear or any inducement given
by any person. Thus, two things are clear that on 16/18.4.1993 H
1094 SUPREME COURT REPORTS [2013] 15 S.C.R.
A when the appellant was produced for recording confessional
statement, he came from the police custody on 16.4.1993 and,
at that time, he was handcuffed, so the witness asked the
police officials who had produced him, to remove the handcuffs.
After recording the first part of his confession, he was sent to
B police custody and not in judicial custody or in the custody of
any other independent agency. While on 18.4.1993, he was
again produced by the police, having the custody of the
appellant handcuffed and it was on the direction of the witness,
the handcuffs were removed and his statement was recorded.
c 34. Deposition of K.L. Bishnoi (PW-193):
He has recorded the statement of the co-accused Rafiq
Madi (A-46) and deposed that he has made a voluntary
confessional statement which was recorded strictly in
D accordance with law, and he has also pointed out the
involvement of the appellant in the crime.
35. Deposition of S.J. Satam, Panch witness (PW-37):
He was the Panch witness and he has deposed that he
E had accompanied the police party alongwith co-accused Rafiq
Madi (A-46) who had taken them to Gate No.5, Kashinath
Building, and pointed out towards the appellant (A-67) who was
arrested therein and arrest memo was prepared.
F 36. Deposition of Waman Kulkarni (PW-662):
He has deposed about sending 9 sealed packets to FSL
on 24.8.1993 vide forwarding letter, Ext.2439 and receiving the
chemical analysis report, Ext.2439A.
G 37. Deposition of Woman Dotlkar IPW-420):
He has deposed that he was working as Assistant
Counter Supervisor of Mis Hans Air Services, and has further
deposed regarding booking of 4 tickets by the appellant (A-
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1095
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
67) for 11.2.1993 for Dubai and proved Ext.D-3, xerox copy of A
3 tickets.
The relevant material by itself does not reveal that Yakub
Memon (A-1) disclosed the contents of said bags to the
appellant. The further material in confession reveals that bags
were given to him on the count of same being luggage of B
persons which were to be sent to abroad. The evidence reveals
the manner in which the appellant had returned 4 bags out of
bags given by Amjad Abdul Aziz Meherbux (A-68) and one bag
out of bags brought by Rafiq Madi Musa Biyariwala (A-46) on
the count of the same being luggage etc. The material reveals c
that he was not able to return two bags on the count of same
being heavy.
38. The confession of the appellant (A-67) further reveals
that he had asked Aziz Meherbux (A-68) about contents of bags
given by Yakub Abdul Razak Memon (A-1) and then A-68 had D
informed him that same were weapons etc. for purposes of
taking revenge of losses suffered by Muslims during the riots.
39. Since the appellant (A-67) being in possession of
contraband material in an unauthorised manner within notified E
area and the said material being capable df attracting
provisions of Section 5 TADA, it will make the appellant (A-67)
liable for commission of offence under Section 5 TADA.
However, considering the purpose for which the appellant (A-
67) had taken control of said material, i.e. for hiding the same F
with his friend, it cannot be said that he had committed the said
act for either aiding Yakub Abdul Razak Memon (A-1) or
abetting any of the acts of Yakub Abdul Razak Memon (A-1).
Thus, though the appellant (A-67) by committing such act had
oontravened provisions of Arms Act and Explosive Act, still his G
intent behind committing said act being not for helping any
terrorist, thus, he cannot be held guilty for commission of any
offence under Section 6 TADA.
40. The word 'Possession' has been explained under
H
1096 SUPREME COURT REPORTS (2013] 15 S.C.R.
A TADA by this Court in Durga Prasad Gupta (supra).
41. In Ka/pnath Rai v. State (Thr. CBI), (1997) 8 SCC
732, this Court held that in order to meet the essential
ingredients of offence under Section 3 TADA mens rea must
be proved, and it is for this reason that the companies and
8
corporations etc. cannot be prosecuted for the offence under
the provisions of TADA. It was further held that the confession
of an accused can be used against co-accused only in the
same manner and subject to the same condition as stipulated
in Section 30 of the Evidence Act, i.e. the accused tried in the
C same case but for different offences.
42. Shri Mukul Rohtagi, learned senior counse~appearing
for the appellant has submitted that two panch witnesses were
there, whereas one has been examined, i.e. Suresh Satam
D (PW.37). His evidence cannot be relied upon for the reason that
he was the brother of a Police Constable and thus, cannot be
termed as an independent witness. Factually, it is true that the
panch witness Suresh Satam (PW.37) himself has admitted
that his brother was employee of the police department of
E Maharashtra. Further, merely having such a relationship does
not make him disqualified to be a panch witness, nor his
evidence required to be ignored. In Kalpnath Rai (supra), this
Court has held that the evidence of police officials can be held
to be worthy of acceptance even if no independent witness has
been examined. In such a fact-situation, a duty is cast on the
court to adopt greater care while scrutinising the evidence of
the police official. If the evidence of the police official is found
acceptable it would be an erroneous proposition that the court
must reject the prosecution version solely on the ground that
no independent witness was examined. (See also: Paras Ram
v. State of Haryana, (1992) 4 SCC 662; Pradeep Narayan
Madgaonkar & Ors. v. State of Maharashtra, (1995) 4 SCC
255; Sama Alana Abdulla v. State of Gujarat, (1996) 1 SCC
427; Anil v. State of Maharashtra, (1996) 2 SCC 589; Tahir
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1097
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
v. State (Delhi), (1996) 3 SCC 338; and Balbir Singh v. State, A
(1996) 11 sec 139).
43. It has been pointed out by Mr. Mukul Rohtagi, learned
senior counsel appearing for the appellant, that the bags were
recovered, though the key was not available and, therefore, it B
is not the case where the key of the suit cases had been given
to the appellant (A-67) and in such a fact-situation, the appellant
may not be aware of the contents of the bags as he had not
seen its contents. The locksmith was called and he made key
and gave it to the police. Subsequent to the opening of the C
bags, neither the key was kept in safe custody nor was it
exhibited or preserved. The locksmith has not been examined.
The recovery of bags itself becomes doubtful for the reason that
even if the statements of the panch witness Suresh Salam
(PW.37) and Anil Prabhakar (PW.506) are taken into
consideration, the recovery was made on 26.3.1993 at 10.00 D
p.m., though they had started at 5.00 p.m. from a nearby place.
Therefore, prosecution has not explained as under what
circumstances the police party took five hours to travel such a
short distance.
E
44. The confession of the appellant (A-67) revealed that
in the second week of February, he met Yakub Memon(A-1) in
office of Amzad Ali Meharbax (A-68) and A-1 asked the
appellant (A-67) to book tickets to Dubai for him. Thereafter,
Amzad Ali Meharbaksh (A-68) gave the the appellant (A-67) F
four bags of Yakub (A-1) and after some time Rafiq Madi (A-
46) came with money for the tickets. After 10-12 days Rafiq
Madi (A-46) came with 3 bags of Yakub to be kept with the
appellant (A-67). Upon inquiry from A-68, the appellant (A-67)
found out, that the bags contained weapons for taking revenge G
of the sufferings of Muslims. On 10th March, the appellant (A-
67) had taken 5 bags and kept the same in the garage of A-1
at Al-Husseini Building. After bomb blasts, he kept the
remaining two bags with Mohd. Hanit (PW-282) from where they
were recovered at his instance. Confession of Mohd. Rafiq
H
1098 SUPREME COURT REPORTS [2013] 15 S.C.R.
A Musa Biyariwala (A-46) revealed that on two occasions Yakub
Memon (A-1) had given Rs. 50,000/- and Rs. 62000-63000/-
to A-46 for giving it to the appellant (A-67), and accordingly A-
46 delivered the same to the appellant (A-67) and saw the
appellant (A-67) driving away from Al- Husseini Building in red
B Maruti car with 3 suitcases. Further, Asit Devji (PW-341) and
Waman Dotlkar (PW-420) corroborated the incident of booking
tickets by M/s Altaf Enterprises i.e. firm of the appellant (A-67).
However, the Court held that the said instance of booking
tickets by the appellant (A-67) cannot lead to the conclusion that
c he had knowledge of purpose for which travellers were going
abroad and thus, the appellant (A-67) was held not guilty of
first limb of second charge under Section 3(3) TADA.
The recovery of two suitcases containing handgrenades,
detonators and wires was effected by Anil Mahabole (PW-506)
D in presence of Suresh (PW-37), panch witness, on 26.03.1993
from the house of Mohd. Hanif (PW 282) and the same was
corroborated by PW-282.
The appellant (A-67) had been told by Amzad (A-68) that
E these bags contained weapons to be used for taking revenge
for Muslims, but still continued to keep the same. The appellant
(A-67) was in possession of bags after he shifted them to Hanif
(PW 282) as he assumed full control of said bags without any
instruction of Yakub (A-1 ).
F It is evident from the record hereinabove, that in the
second week of February 1993, the appellant met Yakub
Memon (A-1) in the office of Amzad Abdul Aziz Meherbux (A-
68) and A-1 asked the appellant to book tickets for Dubai for
him. Thereafter, A-68 gave the appellant 4 packets to Yakub
Memon (A-1) and after some time, Rafiq Madi (A-46) came with
3 packets of Yakub Memon (A-1) to be kept with the appellant
(A-67). On being asked Amzad Abdul Aziz Meherbux (A-68)
revealed that the packets contained weapons which had been
brought to be used for taking revenge of sufferings of Muslims.
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1099
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
The appellant (A-67) had taken 5 bags on 10.3.1993 and kept A
the same in the garage of Yakub Memon (A-1) at the Al-
Husseir:i Building. The Bombay blast took place on 12.3.1993,
and it was after thai the appellant has kept the 2 remaining bags
with Md. Hanit Usman Shaikh (PW.282) from where they had
been recovered by the police on a voluntary disclosure of the B
appellant and at his instance. The prosecution's case stood
corroborated by the confessional statement of Rafiq Madi (A-
46), who had also disclosed that he had received a sum of
Rs.50,000/- and Rs.62,000/- respectively, from Yakub Memon
(A-1) to be handed over to the appellant (A-67) and accordingly, c
the said amount had been delivered to the appellant by him.
He had also deposed that he had seen the appellant (A-67)
taking away the 3 suit cases in red Maruti Car to Al-Husseini
Building.
The other evidences of Asit Devji (PW.341) and Waman D
Dotlkar (PW.420) have fully proved the booking of tickets by
M/s. Altaf Enterprises i.e., the Firm of appellant (A-67).
Undoubtedly, the evidence on record in respect of booking
does not lead to draw an inference, that while booking the
tickets he had any knowledge of any conspiracy regarding the E
Bombay blasts and in view thereof, he had rightly been
acquitted of the charges of the first limb of the second charge
under Section 3(3) TADA. However, the recovery of 2 suit cases
containing the arms and ammunition i.e., handgrenades,
detonators and wires etc. was effected by Anil Mahabole F
(PW.506), on the disclosure of the appellant in the presence
of Suresh Salam (PW.37) and on 26.3.1993 from the house
of Mohd. Hanit (PW-282). The recovery of 2 suit cases
containing the arms and ammunition i.e., handgrenades,
detonators and wires etc. stood fully proved by the conjoint G
reading of the depositions of Anil Mahabole (PW.506), Mohd.
Hanit (PW.282) and Suresh Salam (PW.37).
45. We do not find any cogent reason to interfere with the
order passed by the Designated Court. The appeals lack merit
and are accordingly dismissed. H
1100 SUPREME COURT REPORTS (2013] 15 S.C.R.
A CRIMINAL APPEAL NO. 402 OF 2008
Mohammed Sayeed Mohammed lsaaq .. Appellant
Versus
B State of Maharashtra .. . Respondent
46. This appeal has been preferred against the judgment
and order dated 22.5.2007 passed by the Special Judge of the
Designated Court under the TADA for the Bombay Blast,
C Greater Bombay in Bombay Blast Case No.1/93, by which the
appellant has been found guilty and has been convicted under
Section 3(3) TADA on two counts and has been awarded a
punishment of 6 years alongwith a fine of Rs.15,000/- on each
count, and in default of payment of fine to suffer further R.I. for
3 months. However, the punishments have been directed to run
D concurrently.
47. Facts and circumstances giving rise to this appeal are
that:
E A. In addition to the main charge of conspiracy, he was
charged with the execution of the aforesaid criminal conspiracy,
as during the period between December 1992 to April 1993,
he had abetted and facilitated various terrorist activities, and
more particularly, he had gone to Pakistan to receive weapons
F training in the handling of arms, ammunition and explosives for
the commission of the terrorist activities, between the dates
22.1.1993 - 15.2.1993.
B. He was further charged for having attended
conspiratorial meetings held in Dubai and Pakistan, alongwith
G the other co-conspirators in order to plan the commission of
terrorist acts.
C. After conclusion of the trial, the learned Designated
Court found the appellant (A-95) guilty under Section 3(3) TADA
H
IBRAHIM MUSA CHAUHAN @BABA CHAUHAN v. 1101
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
only and awarded the sentence and fine, as referred to A
hereinabove.
Hence, this appeal.
48. Ms. Farhana Shah, learned counsel for the appellant,
has conceded to the fact that the appellant had in fact gone to B
Dubai, without knowing the purpose of such visit, merely upon
being asked by the other co-accused to do so, and that he
came to know only once when he was in Dubai that he had to
travel to Pakistan for receiving training in the handling of arms
and ammunition. Even in Pakistan, he was unable to take C
training properly as he was suffering from various ailments due
to which, he was even got abused several times. Learned
counsel has admitted appellant's visit to Dubai, but has also
submitted that even after returning to Bombay, he did not
participate in any overt acts or conspiratorial meetings. Hence, D
no charge could be proved against him for attending any such
meetings either in India, Dubai, or Pakistan.
Therefore, it has been submitted by Ms. Farhana Shah,
that appellant has been exploited by powerful criminals and
E
smugglers, and that he had voluntarily gone to Dubai only in
search of a job but, from there he was forced to travel to
Pakistan for training. However, owing to the fact that he could
not receive training, after returning to India he did not attend
any meeting. Thus, he cannot be convicted for the offence
F
punishable under the provisions of TADA.
49. On the other hand, Shri Mukul Gupta, learned senior
counsel appearing for the CBI, has vehemently opposed the
appeal contending that though undoubtedly, he might not have
been involved in any overt act, his involvement in the aforesaid G
criminal conspiracy cannot be ruled out, hence, the provisions
of Section 3(3) TADA would automatically be attracted in light
of the facts of the case. Thus, the appeal lacks merit and is
liable to be dismissed.
H
1102 SUPREME COURT REPORTS [2013] 15 S.C.R.
A 50. We have considered the rival submissions made by
the learned counsel for the parties and perused the records.
51. Evidence against the appellant (A-95) :
(a) Confessional statement of Mohmed Sayeed
B Mohmed lssaq (A-95)
(b) Confessional statement of Hanif Mohmed Usman
Shaikh (A-92)
c (c) Confessional statement of Shaikh Ibrahim Shaikh
Hussein (A-108)
(d) Confessional statement of Usman Man Khan
Shaikh (A-115) (e)Deposition of Dilip Suryanashi
(PW-225)
D
(f) Deposition of Amrutkumar Shah (PW-362)
(g) Deposition of Bhagat Singh (PW-382)
(h) Deposition of Achyut Bhalchandra Deshpande
E (PW-657)
(i) Deposition of Surendra Kumar Sonhd (PW-188)
52. Confessional Statement of Mohd. Sayeed
F Mohmed lssag (A-95):
Hi:=; confession was recorded by Shri Sur~ndra Kumar
(PW-188), DCP Zone IV Bombay. He has stated that he was
told by Yusuf to whom he was acquainted from 1.5 years, that
Salim Kurla (A-65, since dead) was making a movie, and that
G if he (A-95) wanted, he could be assigned the role of a stunt
man in such movie. When he contacted Salim (A-65), he (A-
95) was told to stay in touch with him as a need might arise for
them to travel abroad. As certain material had to be brought
back from Dubai, he (A-95) at the behest of Salim Kurla (A-
H 65), went there after being assured by Kurla, that there would
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1103
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
be no risk in doing the same. They were given there 200 A
Dirhams for expenses. It was only when they reached Dubai,
that the appellant (A-95) found out that they had been sent there
for weapons' training to take revenge upon the Hindu's. At the
said time, the appellant was suffering from Tuberculosis, and
therefore, was unable to keep up with the training being B
provided and, hence, he along with four others, refused to
participate in the said training.
53. Confessional statement of Hanif Mohmed Usman
Shaikh (A-92):
c
His confessional statement was recorded by Sharda
Prasad Yadav, DCP Zone II, Bombay on 28.6.1993 and
30.6.1993. In his confession, he stated that at the instance of
Salim (A-65, since dead), he went to Dubai alongwith the
appellant (A-95), Hanif Mohmed Usman Shaikh (A-92) and D
Usman Man Khan Shaikh (A-115) and there they met Ahmed
and Farooq, who were introduced to them by Salim and there
they stayed in Delhi Darbar Hotel. They were given 200
Dirhams for expenses. Salim and Ahmed called all of them in
a room and told that during December 1992 and January 1993, E
a great injustice had been done to the Muslim community during
Bombay communal riots, and in order to ensure that such
injustice may not be repeated, they would be imparted training
to handle the arms, ammunition and for that purpose they should
be ready to go to Pakistan the next day. All of them were F
scared, however, under pressure, they went to Pakistan. They
were given Rs. 1000/- for expenses. They were imparted
training how to handle the arms and ammunition in Pakistan
and they came back to Bombay via Dubai.
54. Confessional statement of Usman Man Khan G
Shaikh (A-115):
His confessional statement was recorded by Sharda
Prasad Yadav, DCP Zone 11, Bombay on 6. 7.1993 and
8.7.1993. He had given the version similar to that of Mohmed H
1104 SUPREME COURT REPORTS [2013] 15 S.C.R.
A Hanif Mohmed Usman Shaikh (A-92), as he said that he
became acquainted with Salim (A-65, since dead) and Salim
took him to Dubai alongwith Mohd. Sayeed Mohmed lssaq (A-
95), Shaikh Ibrahim Shaikh Hussein (A-108) and Mohmed Hanif
Mohmed Usman Shaikh (A-92). In Dubai, they were taken to
B Delhi Darbar Hotel. Ahmed, Farooq and Salim told them to go
to Pakistan for some work and Ahmed had given them 200
Dirhams for expenses. They were also told that in December
1992 and January 1993, there were atrocities on Muslims and
it was essential to learn how to use the sophisticated weapons
c by the Muslims to defend themselves if such riots occurred
again. He went to Pakistan alongwith Mohd. Sayeed Mohmed
lssaq (A-95), Shaikh Ibrahim Shaikh Hussein (A-108) and
others and learnt how to use the weapons and after completing
the training, they came back to India via Dubai.
D 55. Depositions of Dilip Suryanashi (PW-225) and
Mohandas (PW-230) Immigration Officer at the Sahar
· International Airport, has proved that the appellant left Bombay
on 22.1.1993 for Dubai, and he returned on 16.2.1993 from
Dubai.
E
56. After the incident dated 12.3.1993, the appellant left
alongwith several other persons under a fictitious name, and
stayed at Baroda at a hotel. This has been proved by
Amrutkumar Shah (PW-362), the owner of the said hotel. He
F has stated that as per the entry in. the hotel register, Room
No.204 had been taken by one Farooq Mohd. Shaikh on
22.5.1993, and that one Mohammed Bhai had also stayed with
the said person.
57. Bhagat Singh (PW-382), the receptionist of the hotel
G has also proved the same stating that he had allotted Room
No. 204 to Farooq Shaikh and Mohd. Shaikh.
58. Mr. Achyut Bhalchandra Deshpande (PW-657),
police inspector, deposed that he had written a letter to the
H Deputy Commissioner of Police, Zone-Ill, Greater Bombay on
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1105
STATE OF MAHARASHTRA [DR S.S. CHAUHAN, J.]
22.6.1993, to record his confessional statement. He has. A
admitted in his cross-examination that he did not maintain any
diary etc. wherein any such particulars have been recorded. He
has also admitted that the name of the. accused and the date
in the body of said letter, are not in his hand-writing.
B
59. Surendra Kumar Sondh (PW-188), DCP Zone IV
Bombay, recorded the confession of the appellant (A-95) on
13. 7.1993 and 18. 7.1993. He has stated that he was aware of
the provisions of Section 15 TADA. He has also admitted that
it was improper to continue the custody of the appellant (A-95) C
during the period that is given for reconsideration, with the
same police officer who had produced the said accused before
him on 13.7.1993.
60. After appreciating the entire evidence on record, the
learned Special Judge found, that the confession of the D
appellant (A-95) clearly revealed that he had travelled to Dubai
at the behest of Salim Kurla (A-65), and that thereafter, he had
gone to Islamabad, Pakistan and attended a training camp,
where he had acquired training in the operation of arms and
ammunition, and that thereafter, he had returned to Bombay via E
Dubai. The same has been corroborated by the confessions
of the other co-accused.
The Court has held that considering that the place of training
was a foreign country; the fact that the nature of training
F
acquired was to operate machine guns, AK-56 rifles, hand
grenades, ROX, to undertake the preparation of bombs, and
to operate rocket launchers etc.; the meetings attended after
the said training; the purpose of the training and the oath of
secrecy taken by the appellant (A-95); as well as all other
relevant factors, it becomes abundantly clear that all the above G
activities were directed towards the commission of acts of
violence against the people of Bombay, and since the same
were not directed against any particular person, they could only
be for the purpose of the commission of terrorist acts. Hence,
H
1106 SUPREME COURT REPORTS [2013] 15 S.C.R.
A the appellant (A-95) had been trained for the commission of
terrorist acts.
61. It is evident from the evidence on record and the
findings recorded by the learned Designated Court, that the
appellant (A-95) had gone to Dubai at the behest of Salim Kurla
8
(A-65) and, thereafter, to Islamabad in Pakistan for attending
the training camps and acquired training in handling the arms
and ammunition and thereafter, returned to India via Dubai.
There is evidence on record that the appellant (A-95) came to
know only after reaching Dubai that he had to go with other four
C co-accused to Pakistan for taking training as they had to take
a revenge for suffering of Muslim$, and he was under a coercion
that he alongwith others could be arrested by the police of
Dubai and, therefore, he had to go to Pakistan for training. Even
after coming back, there is no evidence to show that the
D appellant (A-95) had committed any offence and participated
in any other act on the fateful d11y. Further, as the appellant had
obtained training for the commission of the terrorist acts, he
cannot be acquitted of the charges under Section 3(3) TADA.
E The submissions made on behalf of the appellant that he
has served about half of the se111tence and it may be reduced
as undergone, is not acceptable, in view of the fact that it is
mandatory requirement under Section 3(3) TADA to award the
punishment to 5 years.
F 62. We do not see any force in the appeal, it lacks merit
and, accordingly, dismissed.
CRIMINAL APPEAL NOs.617-618 OF 2008
G Ayub Ibrahim Qureshi ... Appellant
Versus
State of Maharashtra Thr. CBI (STF) ... Respondent
63. These appeals have been preferred against the
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1107
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
judgment and order dated 18.9.2006 and 19.7.2007, passed A
by a Special Judge of the Designated Court under the TADA
in the Bombay Blast Case No.1 of 1993 by which the appellant
has been found guilty under Sections 3(3) and 5 TADA and
Sections 3 and 7 read with Section 25(1-A) & (1-8) (a) of the
Arms Act, and has been awarded a punishment to undergo 5 s
years RI alongwith a fine of Rs.12,500/-, and in default of
payment of fine, he was ordered to suffer further RI for a period
of 3 months under Section 3(3), alongwith a similar punishment
as was awarded under Section 5 TADA. For conviction under
Sections 3 and 7, read with Section 25(1-A) (1-B)(a) of the c
Arms Act, no separate punishmeni has been awarded.
However, all the sentences awarded were directed to run
concurrently.
Hence, these appeals.
D
64. Fact and circumstances giving rise to these appeals
are that:?
A. In addition to the first charge of conspiracy,
secondly, he was charged for keeping one pistol E
and 52 rounds for four days in April 1993, which.·
were unauthorisedly given to him by co-accused
Nasim Ashraf Shaikh Ali Barmare (A-49) and the
same is an offence under Section 3(3) TADA.
8. Thirdly, he was charged for acquiring one pistol and F
52 rounds during the aforesaid period from Ashraf
Shaikh Ali Barmare (A-49) and for concealing the
same within the Railway Terminal Compound,
Yunus Manzil, Naupada and that thus, he had been
in possession of the said arms and ammunition and G
has therefore, been charged under Section 5
TADA.
C. Fourthly, he (A-123) has been charged for
possession of the aforesaid arms and ammunition
H
1108 SUPREME COURT REPORTS [2013] 15 S.C.R.
A and thereby, for contravening the provisions of the
Arms Act, and therefore, has committed an offence
under Section 6 TADA.
D. Fifthly, he has been charged for the possession of
the said arms, and thus, for violating the provisions
B
of Sections 3 and 7, read with Sections 25(1-A)
and (1-B)(a) of the Arms Act.
65. Ms. Farhana Shah, learned counsel appearing for the
appellant, has submitted that his possession of one revolver
C and 52 cartridges lasted only a period of 2-3 days. The same
had been handed over to him by Ashraf Shaikh Ali Barmare
(A-49), and were later recovered from an open public place,
and not from the house of the appellant (A-123). The incident
of the blast had occurred on 12.3.1993, and the said recovery
D was made on 8.4.1993, and hence, the same cannot be
connected with the Bombay blast. The material so recovered
was in view of the disclosure statement made by the appellant
(A-123), and was never produced in court despite an order·
passed by the Designated Court to this effect. Subsequently,
E the said contraband were produced, but no explanation was
furnished by the prosecution for 20 cartridges that were
missing.
66. Mr. Mukul Gupta, learned senior counsel appearing for
the CBI, has vehemently opposed the appeal contending that ·
F his possession was conscious possession, and that the
appellant (A-123) was fully aware. of the contents of the bag
which was handed over to him by Ashraf Shaikh Ali Barmare
(A-49) and contained one revolver and 52 cartridges and was
also aware that it was illegal for him to be in possession of such
G arms and ammunition. The same is punishable under the
provisions of TADA. Therefore, the appellant (A-123) has rightly
been convicted on the basis of his possession and the present
appeal is, therefore, liable to be dismissed.
H 67. We have considered the rival submissions made by
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1109
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
the learned counsel for the parties and perused the records. A
68. Evidence against the appellant !A-123) :
(a) Confessional statement of Ashraf Shaikh Ali
Barmare(A-49)
B
(b) Deposition of Chandrakant Vaidya (PW-40)
(c) Deposition of Ratansingh Kalu (PW-600)
(d) Deposition of Shri Vishnu Shinde (PW.615)
c
(e) Deposition of Waman Kulkarni (PW.662)
(f) Deposition of Krishanlal Bishnoi (PW-193)
In the instant case, there is no confessional statement of
the appellant Ayub Ibrahim Qureshi (A-123). D
69. Confessional statement of Ashraf Shaikh Ali
Barmare !A-49):
Confessional statement of co-accused (A-49) was recorded by
K.L. Bishnoi, DCP (PW-193) under Section 15 TADA, wherein E
the said accused revealed that in the first week of April, he had
given one pistol and 52 rounds to the appellant (A-123) and
that the recovery of the same was made by the police on
8.4.1993 at the disclosure statement of the appellant (A-123)
in the presence of Panch witnesses. F
70. Deposition of Chandrakant Vaidya !PW-40):
He was the Panch witness and has deposed that the
appellant (A-123) took them to Railway Terminal Compound
Yunus Manzil, Naupada, and got the recovery of one pistol and G
52 rounds made after digging the earth there. He also deposed
about the Panchnama (Ex.127) prepared in this respect by
Ratansingh Kalu (PW-600).
H
1110 SUPREME COURT REPORTS [2013) 15 S.C.R.
A 71. Deposition of Ratansingh Kalu (PW-600):
He corroborated the evidence of Chandrakant Vaidya
(PW-40) that the appellant (A-123) took the police party to
Railway Terminal Compound Yunus Manzil, Naupada, and on
8 his disclosure, the police recovered one pistol and 52 rounds
and he prepared the Panchanama (Ex. 127).
72. Deposition of Shri Vishnu Shinde (PW.615):
He just proved the signature of PSI Shri Pharande on
c (Ex.2177), forwarded letter to the Chemical Analyzer.
73. Deposition of Waman Kulkarni (PW.662):
He deposed that Chemical Analyzer report dated 7.6.1993
(Ex.2177) was received by him on 30.6.1993.
D
74. Deposition of Krishanlal Bishnoi (PW-193):
PW-193, a police officer (DCP), deposed that he had
recorded the confessional statement of Ashraf Shaikh Ali
E Barmare (A-49) which he made voluntarily and all the statutory
provisions of· TADA were strictly adhered to.
75. After considering the entire evidence on record, the
Designated Court held that contraband articles which had been
recovered from Ayub Ibrahim Qureshi (A-123), were received
F from Ashraf Shaikh Ali Barmare (A-49) and the appellant (A-
123) concealed the same by digging up the earth in close
vicinity of railway station. The appellant (A-123) has accepted
the said articles from Ashraf Shaikh Ali Barmare (A-49),
knowing the nature of the arms arid ammunition. The appellant
G (A-123) did not make any attempt to rebut the knowledge about
the nature of the arms and ammunition. Therefore, the
conclusion has been drawn that the appellant (A-123) was in
possession of the contraband material unauthorisedly within
notified area of Bombay and, thus, committed the offence under
H Section 5 TADA. Further, the appellant (A-123) committed
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1111
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.] .
perpetratory act for commission of terrorist acts and, hence, A
· was held guilty under Section 3(3) TADA. However, considering
the quantum of rounds arid pistol possessed by the appellant
and the duration for which it was held, he was not found guilty
under Section 6 TADA.
B
76. We have reappreciated the evidence on record and
considered the arguments advanced by Ms. Farhana Shah. We
do not see any cogent reason to take a view different from that
of the learned Designated Court. The involvement of appellant
(A-123) in the offences for which the charges have been found
proved against him by the Designated Court, stood fully C·
established~ Appellant had been given the contraband material
by A-49, and he (A-123) was fully aware of the nature of the
weapon and cartridges. The relevant Panchnama, i.e., the
statement in the memorandum Panchnama, the oral evidence
of Chandrakant Vaidya, panch witness (PW-40) and evidence D
of Ratansingh Kalu (PW-600) connect the appellant (A~123) in
concealing the weapon and ammunition.
As the provisions of Sections 5 and 3(3) TADA provide
for a minimum sentence of 5 years, this Court cannot award a E
punishment lesser than what is prescribed under th~ statute.
We do not see any reason to· interfere with the impugned
judgment and. order and appeals lack nierit and are,
. accordingly dismissed.
CRIMINAL APPEAL N0.1631 OF 2007 F
Mohd. Yunus Gulam Rasool Botomiya ... Appellant
Versus
. State of Maharashtra . . . Respondent G
77. This appeal has been preferred against the judgment
and order dated 30.5.2007 passed .by a. Special Judge of the
Designated Court under the TADA in Bombay Blast Case No.1
of 1993 by which the appellant (A-47) was found guilty for H
1112 SUPREME COURT REPORTS [2013] 15 S.C.R.
A offence punishable under Section 3(3) TADA and sentenced
to suffer RI for 6 years and ordered to pay a fine of Rs.25,000/
- and in default of payment of fine ordered to suffer further RI
for a period of 6 months under Section 5 TADA, and sentenced
to suffer RI for 6 years and ordered to pay a fine of Rs.25,000/
B - and in default of payment of fine ordered to suffer further RI
for a period of six months; and under Sections 3 and 7 read
with Section 25(1-A) (1-B)(a) of Arms Act, but no separate
sentence awarded on said count.
C All the sentences awarded to the appellant (A-47) were
ordered to run concurrently.
Hence, this appeal.
78. Facts and circumstances giving rise to this appeal are
D that:
A. In addition to the main charge of conspiracy, the
appellant was further charged with keeping in possession one
AK-56 rifle, 980 cartridges and 132 magazines of AK-56 rifles
between January and April, knowing that they were being
E smuggled into the country for committing terrorist acts, thereby
committing an offence under Section 3(3) TADA.
B. Further, he was charged with the unauthorised
possession of firearms in the notified area of Greater Bombay,
F thereby committing the offence under Section 5 TADA.
C. He was further· cha<ged with aiding and abetting
terrorists under Section 6 TADA and under Sections 3 and 7
read with Section 25(1-A) and (1-B) (a) of the Arms Act.
G 79. Mr. Mushtaq Ahmad, learned counsel for the appellant
has submitted that the appellant is an auto-rickshaw driver and
a simple recovery being made at the behest of the appellant
cannot be enough to implicate him. It was further urged that the
recovery was made from a public place and therefore, loses
H its significance. Timings and procedure of recovery are doubtful
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1113
STATE OF MAHARASHTRA [DR B.S. CHAUHAN, J.)
as signatures of the appellant were not taken on the A
panchnama, Thus, the appeal should be allowed.
80. Mr. Mukul Gupta, learned senior counsel for the State
has vehemently opposed the appeal submitting that the recovery
effected on the basis of the disclosure statement of the B
appellant has been corroborated by· several witnesses. Thus,
no fault could be found with the impugned judgment. Therefore,
the appeal is liable to be dismissed.
81. We have considered the rival submissions made by
learned counsel for the parties and perused the record. C
82. The evidence against the appellant (A-47) is the
recovery of weapons made at his instance. On 2.4.1993 at the
instance of appellant, Eknath Jadhav (PW.606) in the presence
of Samir {PW.34) Panch Witness prepared the memorandum o
Panchnama Exh.93. In 'pursuance of the same, the accused led
the Panchas and the Police to the terrace of Raziya Manzil near
Radhe Shyam Theatre. Samir (PW.34) in his examination-in-
chief stated that bags contained one rifle and six swords, and
the blue coloured rexine bag contained 980 cartridges and 32 E
rifle magazines VJhich were taken out.
83. The police seized the said articles and seizure
panchnama (Ext.94) was prepared by Jadhav (PW.606) upon
obtaining the signatures of the panch witnesses. The said
articles were sent to FSL for expert opinion and a positive FSL F
Report was received t;>y the Police.
84. The recovery of arms and ammunition from the
appellant (A-47) ih a notified area of Greater Bombay has been
established by Ekanth Jadhav (PW.606) and Samir (PW.34). G ·
The recovery was made at his instance itide Memorandum
. Panchnama (Ex.No.93) and Seizure Panchnama (Ex.No.94).
Since the recovery has been made in a notified area of Greater
Bombay, the statutory presumption arose that the arms were
.acquired by the appellant for the purpose of committing terrorist H
. 1114 SUPREME COU~T REPORTS [2013] 15 S.C.R.
A acts. It is for the accused to discharge the presumption .
. 85. There is nothing on record to show that Samir {PW.34)
and Jadhav (PW.606) would depose falsely against the
appellant (A-47) as they had faced the long cross-examination
8 but nothing could surface to make their evidence unworthy of
reliance for the matter deposed by them. It was stated by
Jadhav (PW.606) in his cross examination that he had not
obtained the signatures of the accused on Ex.93, i.e.
Panchnama. The depositions made by Samir (PW.34) and
Jadnav (PW.606) corroborated the evidence of each other and
C again their evidence stand corroborated by the recove,Y of
Panchnama. Samir (PW.34) is an independent and natural
witness and merely because he appeared for the prosecution,
or he hails from the Worli area, it cannot be presumed that he
had been deposing falsely at the b.ehest of the police/
· D prosecution. The information divulged by appellant (A-47) i.e.,
· the one recorded in Panchnama Ex.93 revealed that the
appellant had full knowledge regarding contraband material
being at a place stated by him. The. fact that it had been
recovered on the basis of disclosure statement of the appellant
E (A-17) and he has led the police team to that place proves the
recovery. It stands further proved that the AK-56 rifle sent for
FSL was an assault rifle in working condition, and the bullets
recovered were live bullets. The submission made at the behest
of the appellant (A-47) that alleged recovery was from open
F place and therefore, was not worth credence and the evidence
on record failed to establish consensus position by the
appellant (A-47) of contraband material, does not hold any
merit. More so, merely producing the copy of the passport to
show that appellant (A-4 7) was not resident of !tie Razia
G .building does not stiow that the appellant (A-4 7) had no concern
with the premises in Razia building. The recovery has been
made from the terrace of the premises in Razia buildings and
the contraband material had been found hidden beneath the
waste material placed therein. There cannot be any dispute
H regarding the timings, as the first Panchnama has been
IBRAHIM MUSA CHAUHAN @.BABA CHAUHAN v. 1115
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN,
. .
J.]
prepared e:iarly in the. morning at 5 a.m. and then recovery was A
made later from the place pointed out by the appellant (A-47)
himself.. Therefore, there cannot be any fault with the timings ·
etc. for the reasori that the first Panchnama was prepared at 5
to 5.30 .a.m, and the second one was at ,about 7.00 a.m. to
7.30 a,m. as. disclosed by Jadhav {PW.606) in his cross- · B
· examination. Thus, it shows that there was recovery of one AK-
56 rifle, 980 cartridges of AK-56 rifle, 32. magazines of the
· same. Entries of the same had been made in the P;mchnama
giving full details, as to how those articles were found wrapped
··in gunny bags, rexene etc .. and. how they were subsequently · c
wrapped after the recovery. Samir {PW.34), the panch witness
who identified the recovered articles in the court, pointing out
that the said contraband had been recovered at the behest of
the appellant {A-47).Letter 'B' had been written on the butt of.
· the AKc56 rifle which was also found on the said rifle when D
examined in the court. ·
In his statement under Section 313 Cr.P.C. before the
court, the appellant (A-47) denied all the allegations made by
the prosecution and stated th.cit he had been falsely roped in.
f7urther, he had not made any disclosure,. statement nor any · E · .
· recovery had been made at his behest. The Police was
searching .one Botomiya and arrested the appellant {A-47)
though his name is Bhoronliya. ·
86. The Designated Court after considering the entire F
. evidence on record came to the conclusion that evidence of
Sainir {PW.34) and Jadhav {PW.606) can be relied upon. The
contraband material had been recovered from Razia buildings
at the behest of the appellant {A-47). and the recovery was
rightly made. and Panchnama in this regard was worth reliance. G
There is neither rule of law nor legal precedent that the
signatures of the accused {A-47) is required to be obtained
upon the Memorandum. Panchnama or the Discovery
Panchnama. There is no force in this submission made at the
behest of the appellant (A-47). Though, the contraband articles H
1116 SUPREME COURT REPORTS (2013] 15 S.C.R.
A had been recovered from open space but the articles had been
concealed under the waste material, so it loses the significance
of being recovered from the open space on the terrace. The
recovery stood established by cogent evidence.
87. The. submission made by Mr. Mushtaq Ahmad, learned
8
counsel appearing on behalf of the appellant that the recovery
was made from a public place and therefore, could not be relied
upon and cannot be accepted, as it is the accused alone on
whose· disclosure statement the recovery was made and it is
he alone, who is aware of the place he has hidden the same.
C It cannot be presumed that the other persons having aecess to
the place would be aware that some accused after the
commission of an offence has concealed the contraband
material beneath the earth or in the garbage.
D 88. In State of Himachal Pradesh v. Jeet Singh (supra),
this Court held:
" There is nothing in Section 27 of the Evidence Act which
renders the statement of the accused inadmissible if
recovery of the articles was made from any place which
E
is "open or accessible to others". It is a fallacious notion
that when recovery of any incriminating article was made
from a place which is open or accessible to others, it
would vitiate the evidence under Section 27 of the
Evidence Act. Any object can be concealed in places
F which are open or accessible to others".
89. Similarly, in Gurjinder Singh v. State of Punjab, AIR
2011 SC 972, this Court held that if a weapon was hidden by
digging the earth and could berecovered only be removing the
G earth, it is not desirable to entertain the argument that recovery
had been made from a public place which could have been
easily accessible to anyone. The Court further held:
" ...... In our opinion, such trivial mistakes should not give
any benefit of doubt or any sort of benefit to the
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1117
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
accused. In fact, the recovery was made in the A
presence of Ajaib ·Singh, Assistant Sub-Inspector
and Balbir Singh, Head Constable. It is also not
correct that the memo of recovery was not
produced before the Court.
B
Exhibit P-46, which reveals the fact about the statement .
made by the accused in relation to pistol
incorporates the entire statement made b.y the
accused. Therefore, the said document· itself
incorporates the statement made by the accused. .
· Moreover, simply because the recovery was. made C
in the presence of policemen would not adversely ·
affect the prosecution case ....... n '
90. In State Govt. of NCT of Delhi v. Sunil & Anr.,
(2001) 1 sec 652, this court held: o
"In this context we may point out that there is no
requirement either under Section 27 of the Evidence Act
or under Section 161 of the Code of Criminal Procedure,
to obtain signature of independent witnesses on the
record in which statement of an accused is written. The E
legal obligation to call independent and respectable
inhabitants of the locality to attend and witness the
exercise made by the police is cast on the police officer
when searches are made under Chapter VII of the Code.
F
Hence i{ is a fallacious impression that when rec9very is
effected pursuant to any statement made by the accused
the document prepared by the investigating officer
contemporaneous with such recovery must necessarily ·
be attested by the independent witnesses. ..... The court G
. has to consider the evidence .of the investigating officer
who deposed to the fact of recovery based on the
statement elicited from the accused on its own worth. ·
We feel that it is an archaic notion that actions of the H
1118 SUPREME COURT REPORTS [2013] 15 S.C.R.
A police officer should be approached with initial distrust. ·
We are aware that such a notion was lavishly entertained
during the British period and policemen also knew about
it. Its hangover persisted during post-independent years.
but it is time now to start placing at least initial trust on .
B the actions and the documents made by the police. At
any rate, the court cannot start with the presumption that
the police records are untrustworthy. As a proposition of
law the presumption should be the other way around. That
official acts of the police have beenregularly performed
c is a wise principle of presumption and recognised even
by the legislature. Hence when a police officer gives
evidence in court that a certain article was recovered by
him on the strength of the statement made by the
accused it is open to the court to believe the version· to ·
be co"ect if it is not otherwise shown to be unreliable. It
D
is for the accused, through cross-examination of ·
witnesses or through any other materials, to show that the
evidence of the police officer is either unreliable or at
least unsafe to be acted upon in a particular case. If the
court has.any good reason to suspect the. truthfulness of
E such records of the police the.court cpuld certainly take
into account the fact that no other independent person
was present at the time of recovery. But it is not a legally
approvable procedure to presume the police action as
unreliable to start with, nor to jettison such action merely
F for the reason that police did not collect signatures of
independent persons in the documents made
contemporaneous With such actions."
91. In view of the above; merely because the contraband
G was recovered from a public place, i.e. a place accessible to
the public at large, the same does not mean that the recovery.
is to be discarded. In case, the articles had been hidden by
digging up the earth, covering the same up with garbage or
other material, the public may not have taken note of it. The
H same remained in .the specific knowledge of the accused, i.e.
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1119
. STATE OF. MAHARASHTRA [DR. B.S. CHAUHAN, J.]
where and also the manner in which the said articles were A
hidden.
· Moreover, the recovery cannot be discarded for want of
signature of the accused on the recovery memo ..
92. In view of above, none of the arguments advanced on B
behalf of the appellant is tenable. We do not see any force in
the appeal. It lacks merit and is, accordingly, dismissed.
· CRIMINAL APPEAL NO. 1419 OF 2007
c
Mohamed Dawood Mohamed Yusuf Khan ... Appellant
Versus
State of Maharashtra ... Respondent
D
· 93. This appeal has been preferred against the judgment
and order dated 30.5.2007, passed by a Special Judge of the·
·Designated Court under the TADA for the Bombay Blast Case
No.1/93, Greater Bombay, by which the appellant has been
convicted under Section 3(3) TADA and has been sentenced
to suffer RI for six years, alongwith a fine of Rs. 25,000/-, and E
in default of payment of fine to further undergo six months RI; .
and under Section 5 TADA, the same sentence has been
awarded. He has further been convicted under the Arms Act,
but no separate sentence has been awarded for the same. Both
the sentences have been ordered fo run concurrently.. F
94: Facts and circumstances giving rise to this appeal are
that:
A. In addition to t.he main charge of conspiracy, the
appellant (A-91 ), in p1:1rsuanee of criminal conspiracy during the G
· ·• pedod between January 1993 and April 1993, had agreed to
keep in his possession, 3 AK-56 rifles, and 9 empty magazines,
which were a part of the smuggled consignment, at the instance
of accused Eijaz (A-137-dead) in an unauthorised manner and
H
1120 SUPREME COURT REPORTS [2013] 15 S.C.R.
A thereby, has committed an offence punishable under Section
3(3) TADA; and that he had acquired 3 AK-56 rifles and 9
empty magazines and had kept them in the notified area under
Section 2 TADA, and thus, he has been charged under Section
5 TADA.
B
B. Further, for possessing the said arms, the appellant has
also been charged under Section 6 TADA, and under the
provisions of Sections 3 and 7 read with Section 25(1-A) (1-
B) (a) of the Arms Act. ·
c C. The appellant has been acquitted of the first charge, but
has been convicted under Section 3(3) and Section 5 TADA,
and also under the Arms Act, as has been mentioned above.
Hence, this appeal.
D 95. Shri Mushtaq Ahmad, learned counsel appearing for
the appellant, has submitted that the conviction of the appellant
under the provisions of Sections 3(3) and 5 TADA is not
sustainable, as the confessional statement of the appellant, as
well as those of the co-accused, are inadmissible in view of
E the same not being voluntary,. and having been made under
coercion while in police custody. The confessional statement
had also been retracted just after the filing of the charge sheet.
It has further been submitted that the panch witnesses could not
be relied upon as they were stock witnesses. Therefore, the
F conviction is liable to be set aside, and the appeal desE!rves
to be allowed.
96. Shri Mukul Gupta. learned senior counsel appearing
for the State has vehemently opposed the appeal, submitting
G that the confession of the appellant as well as those of the co-
accused, which have been relied upon, were made voluntarily.
He has further submitted that the retraction is not worth
consideration, and that the panch witnesses were not stock
witnesses, and that therefore, their testimony deserves to be
H
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1121
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
allowed. Thus, the appeal lacks merit and is liable to be A
dismissed.
97. We have considered rival submissions made by
learned counsel for the parties and perused the record.
98. Evidence against the appellant (A-91): B
(a) Confessional statement of the appellant (A-91)
(b) Confessional statement of Eijaz Pathan (A-137)
(c) Deposition of Moiddin Kabir (PW-58) c
(d) Deposition of Ashok Kumar Harivillas Pandey (PW-
59)
(e) Deposition of Hirasingh K. Thapa (PW-278) D
(f) Deposition of Viilay Dagdu Kadam (PW-344)
(g) Deposition of Suresh Ganpath Narathe (PW-522)
99. Confessional statement of the appellant (A-91) : E
The appellant (A-91), in his confessional statement dated ·
29.4.1993 has stated that he had been acquainted with Munna
(A-24) and Eijaz Pathan (A-137 - now dead). Seven-eight days
before Ramzan, at the instance of Eijaz Pathan (A-137), the
appellant (A-91) had gone to the office of M.K. Builders. From F
thE!re, he alongwith Munna and Eijaz had trayelled in a Maruti
car in which one bag had also been placed. Eijaz had told the
appellant (A-91) that the bag contained 3 stun-guns, and that
the appellant (A-91) ha.d to keep the same concealed in his
house. The appellant (A-91) had taken the said bag, containing G
the 3 stun-guns and 9 empty magazines, to his house and kept
the same in a Godrej almirah. He had falsely informed his family
members that the bag contained some cutlery items that
belonged to his employer, and had directed that none of them
must open it. After eight-ten days, the appellant (A-91) had H
1122 SUPREME COURT REPORTS [2013) 15 S.C.R.
A shifted the stun-guns from one bag to another and had kept the
same in his mother-in-law's house, and had told her falsely that
the bag contained certain items that belonged to his friend, and
that she inust not open the same. It had been at his instance,
that the police had made recoveries .of the said arms from the
B house of his mother-in-law.
The above version of events has been corroborated by
Eijaz Pathan {A-137-dead) in his confession recorded on 21st
and 22nd February 2003 by Pramod Mudbhachal, Dy.SP, CBI,
STF in all material respects. · ·
c
A-91 retracted the confessional statement dated
29.4.1993 on 23.12.1993.
100. Suresh Narathe {PW-522), a Sub-Inspector of
0 Police had prepared the disclosure Panchnama Ext. 265 in the ·
presence of .Ashok Kumar Harivillas Pandey (PW-59), panch
witness, on 9.4.1993, and in pursuance of the said disclosure
Panchnama, 3 AK-56 rifles and 9 empty black coloured
magazines had been recovered vide seizure Panchnama Ext. ·
E 281. The seized articles had been sent to FSL for opinion, vide
Ext. 1805 and a positive FSL.Report (Ext.1806) had thereafter,
. been received.
101. Viijay Dagdu Kadam {PW-344) - a Sub-Inspector
of Police, who had arrested A-91 has stated that on 28.4.1993,
F the appellant (A-91) had expressed his willingness to make a
1=onfession voluntarily, and thus, he had w,ritten a letter on the
very same day to Shri Lokhande, DCP, for the purpose of
recording his confession. He has proved the letter marked as
Ext. K-211, and the contents of the said letter have been found
G to be true and correct, and the. same also bear his signature.
He had sent the recovered materials for FSL for examination,
vide letter dated 20.4.1993 (Ext. 1805). He has further deposed
that on 10.5.1993, he had received an FSL report regarding
the articles that had been sent by him, and has stated that the
H
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1123
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
said report was positive. A
102.. Hirasingh K. Thapa (PW-278), watchman of the
Navjeevan Society Where the appellant (A-91) resided, has
corroborated the confession of (A-91). in respect of the visit of
Munna (A-24) and Eija;z Pathan (A-137) to the said society on B
· the day that the said weapons had been given to the appellant
(A-91 ). Hirasingh K. Thapa (PW.278) has identified Munna (A-
24) in the T.I. Parade (Ext. 1490) held by Vithal Sonawane (PW-
465).
103. Moiddin Kabir (PW-58) and Ashok Kumar C
Harivillas Pandey (PW-59) were panch witnesses. Ashok
Kumar Harivillas Pandey (PW-59) had worked as a watchman
at Saldhana Apartments in Chembur for a long time. He has
deposed that he had be.en called to be a panch witness. He
has proved the disclosure panchnama, as well as the recovery D
panchnama, and it was in his presence that the appellant (A-
91) had made a disclosure as regards the 3 AK-56 rifles and .
9 empty magazines. Their recovery had been made at his
behest from the residence of his mother-in-law. Moiddin Kabir
(PW-58) has also corroborated the version of events provided E
by Ashok Kumar Hariviilas Pandey (PW-59).
104. This charge against the appellant has been held to
be proved, and the Designated Court has come to the
conclusion that Eijaz Pathan (A-137) having received the
F
contraband material within notified area, gave the same to the
appellant (A-91), who has agreed to keep the said material with
. him. It was held that Eijaz Pathan (A-137) having kept the bag
of contraband at the house of the appellant (A-91 ), thereafter
the further act of the appellant (A "91) in shifting the same to
the house of his mother-in-law clearly shows that he had G
dominium and control over the same. The accused falsely told
his family members and later on to his mother-in-law that the
bags contained goods of his friend and the same may not be
opened. Hence, the appellant (A-91) being in unauthorised
H
1124 SUPREME COURT REPORTS [2013] 15 S.C.R.
A possession of contraband in notified area of Bombay was guilty
under Section 5 TADA. Similarly, the appellant (A-91) would
also be guilty for commission of offences under Section 3(3)
TADA and under Sections 3 and 7 read with Section 25(1-A)(l-
B)(a) Arms Act. More so, recovery was made at his behest and
B on his disclosure statement.
105. It has been held that considering the manner in which,
and the reason because of which the appellant (A-91) had
agreed to keep the said contraband at his house, and the fact
C that the same had not been for the purpose of aiding a terrorist,
appellant (A-91) was not held guilty for the offence under
Section 6 TADA.
106. Furthermore, considering the fact that the said acts
had been committed by the appellant (A-91) at the behest of
D Eijaz Pathan (A-137), and that the same cannot be said to have
been done for the purpose of furthering the object of a criminal
conspiracy i.e. first charge, or even a smaller facet of the same,
and there being no evidence available to establish the nexus
of the appellant (A-91) with such a conspiracy, he was not held
E guilty of conspiracy i.e. of the first charge:
107. In view of the aforesaid evidence, it becomes clear
that the appellant (A-91) had kept in his possession
unauthorisedly weapons at the behest of Eijaz Pathan (A-137-
dead). The appellant told his mother-in-law and other family
F members that the goods belonged to his friend, and nobody
should open the same. The recovery of the same at his behest
stood proved. The prosecution successfully proved its case and
to that extent he has been convicted by the Designated Court.
We find no cogent reason to interfere with the judgment of the
G learned Designated Court. The appeal lacks merit, and is
accordingly dismissed.
CRIMINAL APPEAL N0.1226 OF 2007
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1125
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
Ramesh Dattatray Mali ... Appellant A
Versus
State of Maharashtra . . . Respondent
108. This appeal has been preferred against the judgment B
and order dated 21.5.2007 passed by a Special Judge of the ·
Designated Court under the TADA in the Bombay Blast case
No. 1/93, Greater Bombay by which the appellant (A-101) has
been found guilty under Section 3(3) TADA, and on this count,
the appellant has been sentenced to suffer RI for 6 years and c
also ordered to pay a fine of Rs.25,000/-, and in default of
payment of fine to further suffer RI for 6 months.
109. Facts and circumstances giving rise to this appeal
are that:
D
A. In addition to the main charge of conspiracy, the
appellant (A-101) has been charged with intentionally aiding
and abetting terrorists, by allowing them to smuggle and
transport arms and ammunition into India from abroad, by the
illegal omission of the appellant (A-101) to thoroughly check the E
motor lorries carrYing such arms and ammunition as well as
other contraband, though the same had been intercepted by the
police party on the night of 9~ 1.1993, at Gondghar Phata and
had been allowed to carry on, in lieu of the payment of a bribe
of Rs.7 lacs, which had been agreed to and accepted by all of F
them, upon negotiation with terrorists. Hence, the appellant has
been charged under Section 3(3) TADA.
B. After his trial, the appellant (A-101) has been acquitted
of the first charge, but has been convicted under Section 3(3)
TADA and has been sentenced as referred to hereinabove.
Hence, this appeal.
110. Mrs. Anagha S. Desai, learned counsel appearing for .
the appellant (A-101) has submitted that there is nothing on
H
1126 SUPREME COURT REPORTS [2013] 15 S.C.R.
A record to show that the appellant (A-101) had any knowledge
regarding the smuggling of arms and ammunition. At most, he
may be guilty under the provisions· of the Prevention of
Corruption Act or of a violation of the Customs Act, or of FERA,
but he certainly cannot be convicted under the provisions of
B TADA. Therefore, the appeal deserves to be allowed.
111. Shri Mukul Gupta, learned senior counsel appearing
for the State, has submitted that the Hawaldar Mali, has been
specifically named by the co-accused Uttam Shantaram Potdar
(A-30)~ thereby revealing the fact that he had been the one
C counting the silver bricks in the truck when the same had been
intercepted at Gondghar Phata. Thus, the appeal lacks merit,
and is liable_ to be dismissed.
112. We have considered rival submissions made by the
D learned counsel for the parties and perused the records.
113. Evidence against the appellant :
(a) Confessional statement of Uttam Shantaram
Potdar (A-30)
E
(b) Deposition of Dinesh Gopal Nakti (PW-95)
(c) Deposition of Krishnakant Nathu Ram Birade (PW-
96)
F (d) Deposition of Dilip Biku Pansare (PW-97)
(e) Deposition of Yeshwant Kadam (PW-109)
(f) Deposition of Vinod Chavan (PW-590)
G 114. Confessional statement of Uttam Shantaram
'
Potdar (A-30):
Uttam Potdar (A-30) in his confessional statement
recorded on 15.7.1993, has given details of the landing on
H 9.1.1993, of the smuggling of the contraband, silvN etc. and
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1127
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
about the interception of the two trucks carrying the contraband A
by the police party at Gondghar Phata. It was here that Uttam ·
Potdar (A-30), has revealed that he had given illegal
gratification for the earlier landings to Ramesh Mali, Hawaldar
(A-101 ). He (A-30) has further stated that Mechanic Chacha (A-
136) had offered the police party a sum of Rs.10 lacs. Ramesh B
Mali (A-101) and Ashok Narayan Muneshwar (A-70) had been
the ones counting the bricks in the truck. In one truck there had
been 175 bricks, and in the other truck there were about 100
bricks and some boxes were also there. Upon being asked,
Mechanic Chacha (A-136) had told the police that the boxes C
contained wrist watches. As the smuggling party did not have
cash, Mechanic Chacha (A-136) had removed 5 silver bricks
from the truck and had given the same to Havaldar Pashilkar.
This version of interception and checking etc. stands
corroborated by Jaywant Keshav Gurav (A-82), Mohd. Sultan
Sayyed (A-90), Salim Kutta (A-134) and Mechanic Chacha (A- D
136), to the extent that the smuggling party had in fact been
intercepted by the police, and that without naming the appellant,
they have described how they had been detained, and
subsequently, how they were released after negotiations that
lasted about half an hour, and as regards how since they did E
riot have cash, they had delivered 5 silver bricks to the police.
115. Dinesh Gopal Nakti (PW-95) and Krishnakant
Nathu Ram Birade (PW-96) were labourers with Uttam Potdar
(A-30), who had been the landing agent in the relevant incident. F
They have deposed that on 9.1.1993, they had gone alongwith
12 other labourers to Dighi Jetfy, for the said landing. They have
further deposed as regards how the goods were smuggled and
transported, but they have not named the appellant (A-101)
specifically, as being a member of the intercepting police team. G
116. Dilip Biku Pansare (PW-97) was a mechanic in the
State Transport Corporation, but had also been assisting Uttam
Potdar (A-30) in his smuggling activities and it was he who had
been driving the vehicle carrying the smuggled articles on
H
1128 SUPREME COURT REPORTS [2013] 15 S.C.R.
A 9.1.1993 from Dighi Jetty to Bombay. Two trucks carrying
smuggled goods had been intercepted b;: the police party at
Gondghar Phata. The vehicles had been stopped and checked.
On their asking, the police had been told that the smuggled
goods were silver and that there were also some boxes that
8 contained glassware. He has further provided details with
respect to how the police party had behaved, but did not name
the appellant specifically.
117. Yeshwant Kadam (PW-109) and Vinod Chavan
(PW-590) are the witnesses to the recovery of Rs:15,000/- from
C the appellant (A-101). In his examination under Section 313
Cr.P.C., the appellant (A-101) has submitted that Vinod Chavan
(PW-590) had not made _any such recovery, rather, on
21.4.1993 the appellant's wife had gone to the Shrivardhan
Police Station arid had given a sum of Rs. 15,000/- that had
D been brought by her by pledging her ornaments with the Mahad
. Cooperative Urban Bank to avoid harassment, as the same
had been demanded by the Police. The Police has shown the
said amount to be the amount recovered from the appellant (A-
101 ), by drawing up a false panchnama Exh.563, to this effect.
E
118. The Designated Court has-dealt with all the ilforesaid
issues, and after appreciating the entire evidence on record so ·
far as the appellant (A-101) is concerned, the Designated Court
has held that Uttam Potdar (A-30) has revealed the involvement
of the appeHant (A-101) in the relevant episode. His
F confessional statement to this effect stands corroborated by the
material in the confessions· of Jaywant Keshav Gurav (A-82),
Mohd. Sultan Sayyed (A-90), Salim Kutta (A-134) and
Mechanic Chacha (A-136), which establishes the presence of
the police party of the Shrivardhan Police Station at Gondghar
G Phata, and further the transportation of contraband goods being
permitted in return for the receipt of bribe. Thus, the court has
reached the conclusion that the appellant (A-101) was in fact
involved in the commission of the offence under Section 3(3)
TADA, though he was not found guilty of the general charge of
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1129
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
conspiracy, as has been mentioned in the first general charge. A
· 119. The present case is a clear case where a police party
had intercepted and checked trucks carrying the smuggled
goods/articles i.e. arms, ammunition and .contraband, and has,
after negotiating for half an hour, with such party, permitted 8
them to proceed further after receiving the decided bribe
amount i.e. silver bricks in lieu of cash which was to be paid
later on.
We are unable to agree with the submissions of Ms.
Desai, with reference to the retracted confessions not being C
admissible in view of the law laid down by this court in A/oke
Nath Dutta & Ors. v. State of West Bengal, (2007) 12 SCC
230.
For the foregoing reasons, the appeal lacks merit, and is D
accordingly .dismissed.
CRIMINAL APPEAL N0.1422 OF 2007
Shaikh Asif Yusuf ... Appellant
E
Versus
State of Maharashtra ... Respondent
120. This appeal has been preferred against the judgment
and ocder dated 31.5.2007, passed by a Special Judge of the F
Designated Court under the TADA in the Bombay Blast Case
No.1 of 1993, convicting'the appellant under Sections 3(3), 5
and 6 TADA and under Sections 3 and 7 read with Section
25(1-A)(1-B)(a) of the Arms Act.
G
121. Facts and circumstances giving rise to this appeal
· are that:
A. In addition to the main charge of conspiracy, he has
been charged under Section 3(3) TADA, for agreeing to keep
in his possession, in the notified area, 4 hand-grenades that H
1130 SUPREME COURT REPORTS [2013] 15 S.C.R.
A had been given to him by the co-accused Nasim Ahmed Ashraf
Qureshi (A-49), in an unauthorised manner, which had formed
a part of the consignment that had been smuggled into India
by the conspirators knowingly and intentionally, for the purpose
of committing terrorist acts.
B
B. The appellant (A-107) has also been cbarged under
Sections 5 and 6 TADA, and Sections 3, 7 and 25(1-A)(1-B)(a)
of the Arms Act for keeping the aforementioned 4 hand-
grenades thai had been given to him by the co-accused Nasim
C Ahmed Ashraf Qureshi (A-49), in his possession.
C. The appellant has been convicted under section 3(3)
TADA and has been sentenced to suffer RI for 5 years, and
has been ordered to pay a fine of Rs.25,000/-, and in default
to suffer further RI for 6 months. The appellant has also been
D convicted under Section 5 TADA and has been sentenced to
suffer RI for 8 years, and to pay a fine of Rs.50,000/-, and in
default to suffer further RI for one year. The appellant has also
been convicted under Section 6 TADA and has been sentenced
to suffer RI for 8 years, and to pay a fine of Rs.50,000/- and in
E default to suffer further RI for one year. The appellant has also
been found guilty under the provisions of the Arins Act, but no
separate sentence has been awarded for the said offences. All
the, sentences have been directed to run concurrently.
Hence, this appeal.
F
122. Shri Mushtaq Ahmad, learned counsel appeating for
the appellant, has submitted that the appellant has been
convicted by the learned Special Judge merely on the basis of
surmises and conjectures and there is no evidence on the basis
G of which, the said conviction can be sustained. Chandrakant
Atmaram Vaidya (PW-40), who has been relied upon for
conviction had been a stock panch witness, and had been
easily available to the police. The recovery had been made from
an open area, to which a large number of persons had access.
H Therefore, the recovery and the panchnama in respect thereof,
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1131
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
including the disclosure statement that has allegedly been. made A
by the appellant cannot be relied upon. The appellant has been
handicapped since his childho.od, and thus, his right hand is
impaired. Furthermore, he has already served more than 5
years in jail. Thus, the appeal deserves to be allowed.
123. Shri Mukul Gupta, learned senior counsel appearing · B
for the respondent, has submitted that the recovery had been
made on the basis of the disclosure statement of the appellant,
and had been made strictly in accordance With the
requirements of Section 27 of the Evidence Act, and therefore,
ha!i rightly been relied upon. No fault can be. found with the C
impugned judgment and order. The appeal lacks merit and is
. therefore, liable to be dismissed. ·
124. We have considered the rival submissions made by
the learned counsel for the. parties and perused the record. D
125. Evidence against the appellant (A-107):
(a) Confessional statement of Nasim Ashraf Shaikh Ali
Barmare(A-49)
E
(b) Deposition of Chandrakant Atmaram Vaidya (PW-
40)
(c) . Deposition of Ratimsingh Kalu Rathod (PW-600)
The appellant (A-107) has not made any confession. F
126. Confessional statement of Nasim Ashraf Shaikh
Ali Barmare CA-49) :
As per the confessional statement of A-49, the appellant
(A-1d7) had gone to Dubai alongwith several other co- G
·conspirators and co-accused to the house of Tiger Memon (AA)
anq his brother Yakub, and from there he had also gone to
Pakistan to receive weapons' training, and had infact, received
the same. The appellant had learnt how to explode black soap
H
1132 SUPREME COURT REPORTS [2013] 15 S.C.R.
A (ROX) with a safety fuse, or by a battery after inserting into the
chemical, a small aluminium coloured detonator. He had
returned to India via Dubai. In Dubai, Tiger Memon (AA) had
spoken to the appellant and to the other accused, about the
atrocities that had been committed by the Hindus, against the
8 Muslims in Bombay, between December, 1992 and January,
1993. After returning to India, the appellant had attended a
conspiratorial meeting that had been held at a flat on Sandra
Hill Road, on 9.3.1993 alongwith other 10 other accused,
including Tiger Memon (AA), Javed Chikna, Anwar and Usman
C (PW.2).
The appellant (A-107) had participated in filling up ROX
which had been duly mixed with steel scrap, alongwith the other
co-accused in the intervening night of 11th and 12th March,
1993. On 12.3.1993, Usm.an (PW.2) had given him 7 hand-
0 grenades, one loaded gun and a small plastic bag that had
contained bullets, and had directed him to go on his mission.
He had gone to the Sahar International Airport, and had thrown
a hand-grenade there which owing to the fact that it could not
reach its target, had .exploded mid-way. Nasim Ashraf Shaikh
E A)i Barmare @ Yusuf (A-49) who had been accompanying the
appellant (A-107) at th.e said time, had gotten frightened, and
both of them had thus, run away from there on a motor cycle.
The co-accused (A-49) had given the appellant (A-107), 4 hand-
grenades and had told him to keep the same with him for some
F time.
127. Chandrakant Atmaram Vaidya (PW-40), a panch
witness, has deposed that on 8.4.1993, he had gone to the
Mahim Police Station, upon being called there through a police
havaldar. Here, P.I. Rathod had told him that the person who
G was sitting there, was actually an accused in the Worli Blast
case, and wanted to make a disclosure statement voluntarily. ·
Upon being asked by the witness, the accused had told him
his name, which was Asif Yusuf Shaikh (A-107), and he further
told him that he could aid in the recovery of certain bombs that
H
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1133
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
had been hidden by him. The police officer had recorded the A
statement of the accused and had prepared the memorandum
panchnama, which had then been signed by .the panch
witnesses. On the basis of the disclosure statement of the
· appellant (A-107), the police party had taken him and the panch
witnesses in a van, and the said van had been stopped at a B
place upon a request made by the appellant (A-107): It was a
heap, in which there lay broken tiles. The appellant (A-107) had
removed the other things and the tiles, and had taken out a
plastic bag which had contained 4 hand-grenades. The police .
a
inspector had prepared panchnama, which had ·been read c
over to the panch witnesses and had been duly signed by them.
The four labels, that had been duly signed by the police.
inspector, had then been affixed to these bombs. All of them
had then returned .to the Mahim Police Station. This witness has
admitted in his cross-examination, that he had also been the 0
panch witness in another enquiry that had been made on
8.4.1993, wherein Ayub Ibrahim Qureshi (A-49) had made a
disclosure statement, on the basis of which a recovery had been
was made from a nearby area (Exh.127-128). It has further
been explained by him, that the place from which the recovery E
· had been made, was an open area and tl:lat a large number of.·
persons had access to it. The witness has further stated that
after the recovery in the first ca·se was over, the police havaldar
had come and taken him back to become the panch witness
. for another case, as during those late hours, no other panch
witness had been available. F
128~ Rata'nsingh Kalu Rathod (PW-600), a police
Inspector corroborated the. evidence of Chandrakant Vaidya
(PW-40), and h~s narrated how the disclosure statement had
been recorded, how the memorandum panchnama had been G
prepared and also how, the said recoveries had been made.
He has pointed out that at the place of recovery, the accused
· had removed items from the heaps, and that after digging, had
taken a bag containing four hand-grenades. He has also given
full details as regards how the two recoveries had been made H
1134 SUPREME COURT REPORTS (2013] 15 S.C.R.
A in a close proximity of time, and from nearby places.
129. In his statement made under Section 313 of the Code
of Criminal Procedure, 1973, the appellant (A-107) has
pleaded false implication in the said case, and has stated that
8 the said recoveries had not been made at his instance, as he
had never been in possession of any hand-grenades.
130. On the issue of recovery, this Court in State of H.P.
v. Jeet Singh (supra), held :
c ''There is nothing in Section 27 of the Evidence
~ .
Act which
renders the statement of the accused inadmissible if
recovery of the articles was made from any place which
is "open or accessible to others". It is a fallacious
notion that when recovery of any incriminating article was
D made from a place which is open or accessible to others,
it would vitiate the evidence under Section 27 of the
Evidence Act. Any object can be concealed in places
which are open or accessible to others. For example, if
the article is buried in the main roadside or if it is
concealed beneath dry leaves lying on public places or
E
kept hidden in a public office, the article would remain
·out of the visibility of others in normal circumstances.
Until such article is disinterred, its hidden state would
remain unhampered. The person who hid it alone knows
where it is until he discloses that fact to any other person.
F Hence, the crucial question is not whether the place was
accessible to others or not but whether it was ordinarily
visible to others. If it is not, then ft is immaterial that the
concealed place is accessible.to others.". (Emphasis
added)
G
131. In State of Maharashtra v. Bharat Fakira Dhiwar,
(supra), this court dealt with the issue.
132. Thus, in view of the above, the submission made by
H Mr. Mushtaq Ahmed, stating that as the recovery had been
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1135
STATE OF MAHARASHTRA [DR S.S. CHAUHAN, J.]
made from an open place to which all persons had access, A
cannot be relied upon and is not worth acceptance.
133. Undoubtedly, the appellant's disclosure statement had
been made before the police, as well as the panch witness. The
fact that he did not disclose the place where the contraband
B
had been hidden remains entirely insignificant, for the reason
that he had led the police party to the said place, and that the
said recovery had been made at his behest. The open space
from where the recovery had been made though was
accessible to anybody, it must be remembered that the
contraband had been hidden, and that it was only after digging .C
was done at the place shown by the appellant, that such
recovery was made. Hence, it would have been impossible for
a normal person having access to the said place, to know
where the contraband goods were hidden.
D
134. Nasim Ashraf Shaikh Ali Barmare (A-49) in his
confessional statement, has disclosed that he had handed over
the remaining hand-grenades to the appellant. As the said
contraband could not have been used other than for the
aforementioned terrorist activities, the submission advanced on E
behalf of the appellant, stating that'll was not proved that the
contraband so hidden were to be used for terrorist activities,
cannot be accepted. In light of the facts and circumstances of
the case; it cannot be believed that the appellant had not been
aware of the contents of the contraband, even though the same F
had been wrapped in carbon paper. Furthermore, had the .
appellant not been aware of the contents of the contraband,
there would have. been no occasion for him to hide the same
away after digging up the earth, and further to yet again, cover ·
up the said material with earth and heaps of items. Thus, we G
are of the view that the appellant had been fully aware of the
contents thereof. ·
135. In view of the above, we concur with the conclusion
that has been reached by the learned Special Judge. Thus, the
present appeal lacks merit, and is accordingly dismissed. H
1136 SUPREME COURT REPORTS (2013] 15 S.C.R.
A CRIMINAL APPEAL N0.1180 OF 2007
Mubina @ Baya Moosa Bhiwandiwala ... Appellant
Versus
B State of Maharashtra ... Respondent
136. This appeal has been preferred against the judgment
and order dated 14.6.2007 passed by a Special Judge of the
Designated Court under the TADA in Bombay Blast Case No.1
C of 1993, by which the appellant has been convicted under
Section 3(3) TADA, and a punishment of five years rigorous
imprisonment with a fine of Rs. 25,000/-, and in default of
payment of fine to suffer further R.I. for 6·months was imposed.
137. Facts and circumstances giving rise to this appeal
D are that:
A. In addition to the main charge of conspiracy, the
appellant was charged With being an associate of Tiger Memon
(AA), abetting and knowingly facilitating the commission of
E terrorist acts committed on 12.3.1993. She was further charged ·
with facilitating the holding of conspiratorial meetings on 9th
and 10th March, 1993 in her flat in Sandra, wherein the terrorist
acts came to be discussed and finalised.
B. After conclusion of the trial, the learned Special Judge
F c.onvicted A-96 as referred to hereinabove.
Hence, this appeal.
138. Mr. Zafar Sadique, learned counsel for the appellant
has submitted that it was her brother who was a close associate
G · of Tiger Memon, and after the death of her brother she was
given some money for household expenses by Tiger Memon,
and she did not work for him or had any knowledge of her
involvement in terrorist activities. Thus, the appeal deserves to
be allowed.
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1137
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
139. Mr. Mukul Gupta, learned senior counsel for the State A
vehemently opposed this appeal by stating that her confession
itself reveals that she knew that Tiger Memon was a smuggler.
Moreover, the fact that conspiratorial meetings were held in her
house demonstrates her knowledge of the conspiracy; and
being a party to the same she should have also been convicted B
of the larger conspiracy. Thus, the appeal is liable to be
dismissed .
.140. We have considered the rival submissions made by
the learned counsel for the parties and perused the records.
c
141. Evidence against the appellant:
(a) Confessional statement of the appellant Mubina @
Baya Moosa Bhiwandiwala (A-96)
D
(b) Confe$sional statement of Asgar Yusuf Mukadam
(A-10)
(c) Confessional statement of Abdul Gani Ismail Turk
(A-11)
E
(d) Confessional statement of Parvez Nazir Ahmed
Shaikh (A-12)
(e) Confessional statement of Nasir Abdul Kadar
Kewal @ Nasir Dhakla (A-64)
F
,(f) Confessional statement of Niyaz Mohmed @
Aslam Iqbal Ahmed Shaikh (A~98) '
(g) Confessional statement of Zakir Hussein Noor
Mohammed Shaikh (A-32)
G
142. Confessional statement of the appellant Mubina
@ Balla Moosa Bhiwandiwala {A-96}:
. The evidence against the appellant (A-96) had been her
own.confessional statement which revealed that her brother was H
1138 SUPREME COURT REPORTS [2013] 15 S.C.R.
A a close associate of Tiger Memon (AA) and indulged in
smuggling activities. Out of that ill-gotten money, he purchased
the said flat and other commercial properties and a car.
However, subsequently, when he was pursued by the Customs
officials on 10.12.1990, he jumped from the said building and
B died. Subsequently, she had been living in the said flat
alongwith her parents and widow of his brother with a minor
child. She was unmarried and 22 years of age at that time. She
deposed that after the death of her brother, Tiger Memon (AA)
had supported her family financially by paying Rs.10,000/- per
c month for household expenses which had subsequently been
enhanced to Rs.20,000/- on being asked by her father. The car
purchased by her brother was being driven by the appellant (A-
96). Tiger Memon used to keep his own money at her residence
and it ranged from Rs. 1 lakh to 5 lakhs. She further deposed
D that she personally knew Tiger Memon (AA) and had been
visiting him at his residence in Mahim. On 8.3.1993, Shafi
came to her house and handed her an envelope. On opening
the same, she found three passports and two tickets of Tiger
Memon (AA). Out of them, one ticket was of Air Emirates
E Bombay-Dubai-Bombay and second was of Gulf Air Bombay-
At>u Dhabi-Bombay. Both the tickets had been purchased
through East West Travels and both of them had been for
12.3.1993. The said tickets and passports had been taken by
Asgar (A~10), an associate of Tiger Memon (AA) on 11.3.1993
at 11.00 p.m. from her residence. Samir Ahmed Hingora (A-
F 53), owner of Magnum Videos, sent a sum of Rs.50,000/- to
her. for household expenses twice. On 9.3.199,3, a meeting was
·held at her residence at 8.00 o'clock in the evening which was
attended by Tiger Memon (AA) and his associates. Tiger
Memon (AA) was directing his men in the bedroom of the
G house for a period of approximately half an hour and she and
her family had been sitting outside. Usman (PW-2), Javed,
Bashir and Nashir alongwith 10-15 other boys came at her
residence. She opened the door. They asked for Tiger Memon
(AA) and she replied that he was inside. Tiger Memon (AA)
H spoke to them, in the bedroom. Appellant was asked to prepare
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1139
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
15-20 cups of tea. After preparing the tea, she knocked the door A
of the hall; one boy came and took the tea inside. Tiger Memon
(AA) and those persons were discussing about the plan. They
left at about 12.30 in the night. On the next day on 10.3.1993
at about 9.00 or 9.30 at night, those boys came again to her
residence at the instance of Tiger Memon and the appellant (A- B
9.6) asked them to wait. Then, Tiger Memon (AA) came and
discussed the plan with those boys. Then all of them left her
house at about 12.00 o'clock at night. The police arrested the
appellant after 4-5 days of bomb blasts.
143. Confessional statement of Asgar Yusuf C
Mukadam (A-10):
He has corroborated the
confessional statement of the appellant (A-96) to the extent that
he had collected the passports and tickets kept with appellant D
(A-96) by which Tiger Memon (AA) left for Dubai on 12.3.1993,
early in the morning.
144. Confessional statement of Abdul Gani Ismail
Turk IA-11 ):
E
His confessional statement revealed that on 7th March,
1993 in the evening, he went to accused lmtiyaz for taking the
scooter which he sold to him (A-11), then he came to know that
Tiger Memon (AA) had conie back to Bombay from Dubai and
he wanted to meet him at Al-Husseini building. Abdul Gani F
l!>mail Turk (A-11) went there and met Tiger Memon (AA) at his
residence. He was there alongwith his parents and brothers.
Subsequently, Shafi took the accused (A-11) with him in the
Maruti car. Shafi stopped the car and went to make a call
asking accused (A-11) to wait at the house of Mubina alias G
Baya Moosa Bhiwandiwala (A-96). He (A-11) reached at the
flat of Mubina, appellant (A-96). After sometime, Tiger Memon
(AA) and Shafi came there. Some other boys were also
present there. On the next day on 8.3.1993, he (A-11) went to
the house of Tiger Memon and after sometime, both of them H
1140 . SUPREME COURT REPORTS [2013) 15 S.C.R.
A went to the house of Mubina, appellant (A-96) by the Maruti car
of Tiger Memon. Tiger Memon went up to her flat, though,
accused (A-11) remained sitting in the car .. Shafi came down
from her flat and went towards Jogeshwari taking accused (A-
11) in a Commander Jeep and returned after one hour. He (A-
B 11) found one bag in the jeep which contained. 2 rifles, 4-6
handgrenades and some bullets. Then they came back to the
flat of Mubina, appellant (A-96). Tiger Memon and other co-
accused came down from her flat at about 11.30-12.00 o'clock
at night and they left in jeep and Maruti car.
C 145. Confessional statement of Parvez Nazir Ahmed
Shaikh, !A-12):
He deposed that in the second week of February 1993,
he alongwith other co-accused brought the contraband
o smuggled from Dubai to Bombay in a jeep at 11.30 p.m. The
jeep was parked at the house of Mubina, appellant (A-96), and
he handed over the keys of the jeep to Mubina, appellant (A-
96).
146. Confessional statement of Nasir Abdul Kadar
E Kewal @ Nasir Dhakla ·!A-64):
In his confessional statement, he stated that on 9.. 3.1993
Tiger Memon took him alongwith other co-accused to the flat
of Mubina, appellant (A-96) at Sandra, wherein he met all the
F persons who got training in Pakistan. Again on 10.3.1993, he
was called at the house of appellant (A~96) for a meeting. He
corroborated the case of the prosecution that conspiratorial
meetings were held at the flat of Mubina (A-96) on 10.3.1993.
G 147. Confessional statement of Niyaz Mohmed @
Aslam Igbal Ahmed Shaikh !A-98):
In his confessional statement, he stated that on 8th and 9th
March, 1993, he was asked by Usman (PW-2) to be ready and
he went alongwith co-accused lrfan Chaugale to a flat at 3rd
H floor in a building behind Bhabha Hospital in Sandra.· Some
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1141
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
other persons were there, including Tiger Memon, Javed A
Chikna, Bashir, Usman, Sardar Khan and Parvez. After
sometime, a girl, the appellant (A-96) who was called by Tiger
Memon, brought tea and served to all of them.
148. Confessional statement of Zakir Hussein Noor B
Mohammed Shaikh IA-32):
In his confessional statement, he stated that on 10.3.1993,
on instructions he went to attend the meeting at Sandra flat
alongwith Usman (PW-2). Tiger Memon was sitting there
directing the group of boys and assigning them different roles. C
149. After appreciating the entire evidence on record, the
Designated Court came to the conclusion as under:
"51).Since the matters from the said confession are so D
eloquent that hardly any dilation would be necessary
about the same. However, the defence having urged that
since A-96 was not present in the relevant meeting in
which the discussion was made, she cannot be held guilty
for commission of any offence. It is urged hence her
confession fails to disclose her involvement in E
commission of offence and as such is liable to be
discarded. It is urged that in said event the material in
confession of the co-accused revealing that the meeting
was held at her house but again not revealing that she
was party to the said meeting will not be sufficient to F
fastening guilt upon her.
52) The aforesaid submissions though apparently
appears to be attractive the same does not stand to the
reason. Considering matters in entirety in the said G
confession it is clear that Tiger Memon was also residing
in the nearby vicinity. In the said contingencies Tiger
Memon holding meeting of such a number of persons
at the house of Mubina itself raises a grave doubt about
the purpose for which the said meeting was held by him H
1142 SUPREME COURT REPORTS [2013) 15 S.C.R.
A at the said house instead of his own house. Apart from
the same, careful consideration of the material in the
confession in terms reveal close association developed
in between Tiger Memon and A-96. The other material
pertaining to keeping tickets of Tiger Memon at her
B house, Tiger Memon paying money for the expenses
himself increasing the said amount upon the say of
father of A-96 are the circumstances curiously throwing
the light upon the relationship in between them. Even the
material in the confession reveals that Tiger, Memon had
c a talk with his friend after taking him to the bed room in
the said house. All the said circumstances are se/f-
eloquent.
53) Furthermore the recital in the confession that after the
Tea was taken "the said person were discussing about
D their plan" is a recital clearly revealing knowledge of A-
96 of the meeting being regarding the plan. Since in
cases of conspiracy direct evidence would never be
available the said self-eloquent recital is sufficient to infer
about A-96 having full knowledge about the purpose for
E which the said meeting was held by Tiger Memof!.
Needless to add neither the confession reveals the
reason because of which A-96 had allowed. Tiger Memon
to take the meeting in her house. Furthermore even a
trial, no explanation has been given by A-96 regarding
F the said respect. Thus considering the said act committed
by A-96 conclusion is inevitable about herself knowing
full well the purpose of the said meeting had allowed Tiger
Memon to hold the same at her house and that too in
spite of his house being not far away from the said place.
G Thus, the same clearly denotes of A-96 having aided and
abetted and assisted a Tiger Memon for having a
meeting for chalking out final plans of conspiracy hatch.
Thus all the said material is sufficient for holding her
guilty for commission of offences under Sec. 3(3) of
H TADA.
IBRAHIM.MUSA CHAUHAN @BABA CHAUHAN v. 1143.
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J..]
54) In the aforesaid context the defense submission that · A
A-96 was not alone residing in the said flat or that her
. father and other members of her family were also residing
at the said Flat and as such she cannot be said to be
responsible for granting the permission. to Tiger Memon
for holding meeting in the said flat as the same might B
have been given by somebody else i.e. her father etc.
also does not stand to the reason. Such conclusion is
apparent as the material in. her confession does not
support such a theory and on the contrary the meeting
held under nose on the relevant day clearly signifies the c
same being held with her concurrence. Needless to add
that·material in the confession also denotes of affairs of
the said House being managed by her after the death of
her brother.
55) Since the matters in the confession of A-96 or at least D
the fact of meeting held in her flat being corroborated
material in the confession of accused referred during the
discussion made earlier, the said aspect will not need any
reiteration. Having regard to the same the matters in her
confession 'l'hich is disclosing her involvement, i.e. ,.the E
admission in commission of the offence u/s.3(3)of TADA
will be required to be taken into consideration and thus
will be required to be acted upon. As a result of the same,
she will be required to be held guilty for commission of
the said, offence. F
56) However, even accepting the said material in her
confession and even the conclusion arrive about her guilt
still it will be necessary to say that the said material
cannot be said to be sufficient for holding her guilty for G
commission of offence of an conspiracy for which he is
charge with at a trial. The same is obvious that there
exists no evidence of herself having. committed any act
prior to this meeting and even after the said meeting
denoting that she was the Member of the conspiracy. The
same is obvious as there is clearly paucity of evidence H
1144 SUPREME COURT REPORTS (2013] 15 S.C.R.
·A to establish A-96 having committed any other act
furthering the object of such conspiracy. Hence she
cannot be held liable for being party to the conspiracy,
as even the evidence pertaining to the said meeting
reveals that she has not participated in the same and
B merely sent Tea and allowed Tiger Memon to hold
meeting at her residence.
57) Thus, taking into consideration the extent and/or
severity of act committed by A-96 and the other relevant
factors and having regard to the basic principle behind
C awarding punishment being to eradicate the element of
criminality and not to punish individual human being
entertaining same, herself being woman accused, herself
having faced a long drawn prosecution, role played by
her cannot be said to be of a severe nature, the probable
D reason because of which she had committed the relevant
acts, herself being not the sole person who had assisted
Tiger Memon in the relevant episode and even from said
angle, act committed by her clearly appearing to be on
much lower pedestal than such a role of facilitation,
E assistance played by other co-accused in the case, a
minimum sentence _prescribed under the law 'i.e. a
sentence of R.I. for 5 years and a fine amount of
Rs.25,0001- with suitable addition of RI in default of
payment of fine for commission of offence u/S.3(3) of
F TADA, ordered for A-96 would serve the ends of justice."
(Emphasis supplied)
150. There is no evidence on record to show that the
appellant (A-96) is the actual owner of the flat where the meeting
took place. The appellant (A-96) was simply present in the next
G room when the meeting was held and she was asked to serve
tea. Further, it was her brother who was well acquainted with
Tiger Memon (AA) and after his death Tiger Memon(AA) simply
gave some money to her family for household expenses and
that money was not for her own personal/individual expenditure.
H Moreover, while serving them tea she might have overheard
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1145
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
something about a plan that was being formulated by the co- A
accused, but not being a party to the meeting she could not
have possibly known or understood the plan. According to the
prosecution case, she had been given air tickets by Tiger .
Memon (AA) to keep and one of the tickets had been taken by
him in the early morning hours of the day of the blasts i.e. B
12.3.1993. There is nothing on record to show that the appellant
(A-96) knew that the blasts were going to take place on that
day, or that she had acquired any knowledge that Tiger Memon
(AA) would be absconding from India. Moreover, she was not
a participant in any overt act in furtherance of the conspiracy. c
151. Due to the foregoing reasons, the appellant (A-96)
is held to be entitled for benefit of doubt. Thus, we allow the
appeal and acquit her for the charge under Section 3(3) TADA.
The conviction and sentence awarded by the Designated Court
are set aside. D
" bail bonds stand discharged.
The appellant is on bail. Her
CRIMINAL APPEAL NO. 1225 OF 2007
Noor Mohammed Haji Mohammed Khan ... Appellant
E
Versus
The State of Maharashtra .. . Respondent
(through CBI, STF)
152. This appeal has been preferred against the
judgments and orders dated 23.11.2006 and 5.6.2007, passed· F
by a Special Judge of the Designated Court under the TADA
in the Bombay Blast Case No. 1/1993.
153. Facts and circumstances giving rise to this appeal
are that: G
In addition to the main charge of conspiracy, he has also
been charged under Section 3(3) TADA, for permitting the co-
accused Mushtaq @ Ibrahim @Tiger Abdul Razak Memon and
his associates, to store the contraband/explosive material/ROX
H
1146 SUPREME COURT REPORTS [2013] 15 S.C.R.
A in his godown between the 2nd and 9th of February, 1993, and
has further been charged under Section 5 TADA, for
possession thereof. He has also been charged under the
provisions of Section 6 of the Explosive Substances Act, and
the Explosives Rules, 1983 for storing and concealing 58 bags
B of RDX explosive that had been smuggled into the country by
the co-accused, between the 2nd and 9th of February, 1993.
154. The appellant has been convicted under Section 5
TADA and has been awarded a punishment of 5 years
C alongwith ·a fine of Rs.1,00,000/-, and in default of payment of
fine, to further undergo 3 years RI, and also under Section 201
IPC has been awarded a punishment of 5 years, alongwith a
fine of Rs.50,000/-, and in default of payment of fine to suffer
further RI for one year. However, both the sentences have been
directed to run concurrently.
D
Hence, this appeal.
155. Shri Shree Prakash Sinha, learned counsel appearing
for the appellant, has submitted that the conviction of the
E appellant which is based on the confession of the appellant, is
not sustainable for the reason that the confession itself has
revealed, that the appellant had refused to record any
confession at the initial stages of recording his confession. The
same is evident from the confessional statement itself, and Shri
Sanjay Pandey, DCP (PW-429), in light of this, ought not to
F have recorded his confessional statement at all. The recoveries
made at the behest of the appellant cannot be relied upon, as
the same do not connect the appellant with the same in any
manner. Furthermore, the recovery has not been made in
accordance with law, for the simple reason that the disclosure
G statement of the appellant, which was recorded under Section
27 of Evidence Act was made simultaneously. The same is
shown to have been made at the time, when the appellant had
been present before the learned Designated Court, held at the
Mahim Police Station itself. While considering his application
H for remand, no satisfactory explanation could be furnished by
. IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1147
STATE OF MAH.ARASHTRA [DR. B.S. CHAUHAN, J.]
the prosecution as regards how remand proceedings, and the A
recording of the disclosure statement of the appellant could
take place together. The evidence suffers from material ·
contradictions, and thus, ought to have been rejected. ·
Therefore, the appeal deserves to be allowed.
B
156. Shri Muklll Gupta, learned senior counsel appearing
for the State, has vehemently opposed the appeal contending ·
that all proceedings had been conducted strictly in accordance
with law. Undoubtedly, the confessional statement suggests,
that appellant had refused to make a confessional statement. C
However, upon a ·cogent reading of \he said statement, the
impression created by the learned counsel for the appellant ·
stands completely dispelled. T.he conviction of the appellant is
based upon a co~rect appreciation of the evidence available.
· Thus, the appeal lacks merit and is liable to be dismissed.·
D
157. We have considered the rival submissions made by
the learned counsel for the parties, and perused the record.
158. Evidence against the appellant CA-50!:
1148 SUPREME COURT REPORTS (2013] 15 S.C.R.
A (i) Deposition of Kailas Baburao Dawkhar (PW-518)
0) Deposition of Dattatray Maruti Wayal (PW-521)
159. Confession of Noor Mohammed Haji Mohammed
Khan !A-50):
B
The confession of appellant (A-50) was recorded on 14th/
16th May, 1993. The appellant had been 32 years of age at
the time of the said incident. The.relevant part of his confession
suggests that he had acquired land at Kashimira, measuring
c 1200 sq.mtrs. He (A-50) had known the co-accused
Mohammad Jindran (now dead) and Veda Yakub (AA). The
said plot was taken care of by a watchman Who had been
appointed by him. The said watchman had been removed by
the appellant (A-50) on the basis of certain complaints regarding
D his behaviour with a local girl, and another watchman had
thereafter, been appointed. When he (A-50) had visited the
said plot in the last week of February, 1992, he had seen some
sacks lying in the shed constructed thereon. The watchman had
told him that the said goods had been sent by Mohammad 15/
E 20 days ago, through Shakeel (A-59-acquitted), the driver of
Mohammad, by way of a tempo. The appellant (A-50) had not
made any further enquiry as regards the same from the
watchman, or from Mohammad, with respect to the contents
thereof. When he had visited the place for the second time, he
had removed the contents, and had seen what looked like black
F soap. He had then returned to Bombay, a.1d had asked
Mohammad about the goods. Mohammed and Shakeel had .
denied having any information as regards the said goods.
He (A-50) had again visited the site on 16th/17th March,
G 1993 at Kashimira alongwith Rashid Khan, - a businessman
who dealt in chemicals, and had taken out the packet. Rashid
Khan, after examining the contents of the packet thereof, had
told him that the same was explosive material. Rashid Khan
had taken the packet with him, and had subsequently informed
H him that the same most certainly contained material for making
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1149
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
bombs. By this time, certain material had been seized in A
Mumbra and due publicity had been given to the same in the
newspapers. It had been revealed that the material belonged
to Veda Yakub. The appellant (A-50) had then asked Rashid
Khan to help him to destroy th.e material. Rashid Khan had told
him that he knew one Munna, who could help them to destroy B
the same. The appellant (A-50) had then decided to spend a
sum of Rs.,\i lakhs, for the purpose of destroying the material
as he had apprehensions regarding the incident of recovery of
the same material in Mumbra. They had met Munna at the Lion
Pencil Resort at Nangla. Munna had been assigned the job of c
.. distribution of the ma'terial, and the appellant was informed in
the evening, that the said work had been completed. The
appellant had gone to Bombay and had given a Toyota Corolla
car to Rashid Khan, in lieu of payment of a sum of Rs. 3 lacs,
and the remaining amount had been paid by Mohammad.
.o
After 3-4 days, he had gone to the site with Shakeel, and
the watchman had told him that some of the material had been
left behind. He had then put the remaining material in a jeep,
had gone with Shakeel, and Shakeel had then thrown the same
alpng Kashimira Highway, from a bridge at'! distance of about E:
6 Kms. from Kashimira. As some of the said material had fallen
down outside of the water channel, the appellant had gone
down with the jeep, and had thrown the sacks containing left
over material. into water and had then driven back to Bombay.
F
It was on 8th April that Munna had telephoned the appellant
(A-50) demanding the balance amount of Rs.2 lacs that had
been promised to him stating that, otherwise he (A-50) would
face dire consequences. The appellant had then informed
Mohammad, who had subsequently informed the police, and
they had thus gotten Munna arrested. After some interrogation, G
the appellant (A;50) had also been arrested.
He (A~50) has further stated that he had not known that the
material was actually ROX. Once he had become aware of the
same, he had thrown the same into the water, apprehending H
,.
1150 SUPREME COURT REPORTS [2013] 15 S.C.R.
A his arrest by the police. The remaining material had be.en
thrown off the bridge along the Kashimira Highway. He (A-50)
had himself taken the police to the said place and had gotten
the material recovered from there.
The appellant (A-50) had also made retraction of his
8
confession on 14th/16th May, 1993, at a belated stage.
160. Confessional statement of Shakeel
Shahabuddin Shaikh (A-59):
c. According .to his confessional statement, he had been
working as the driver of Mohammad Jindran (AA). He had been
· told in tlie second week of February, 1993 ~y his employer, that
a tempo was parked at Dahisar Checknaka, near the Delhi
Darbar Hotel; that contained sacks of cement and that he must
unload the same onto a plot ihat belonged to Noor Khan (A-
0
50), who was a friend of his employer's, i.e. of Mohammad
Jindran's. A letter had been given to him, so that the driver of
the tempo would permit Shakeel to unload.the contents of the
said tempo· onto the land belonged to Noor Khan (A-50).
E Shakeel. had thus gone there, and had contacted th.e driver of
'the parked· tempo. He (A-59) had ·then taken the said tempo
and had off load.ed the contents of same onto the land of Noor
Khan (A-50). There had been a.bout 1200 to 1300 sacks, and
also some square type boxes, that were wrapped and had been
kept alongwith the said sacks. The same were also unloaded.
F He (A-59) had telephoned his employer after doing so, and had
informed· him that the work had been done. The sacks arid the
boxes had ~een unloaded at the Noor Khan's place. He (A-59)
had accompanied Noor .Khan to the site, and had asked the
watchman there who were the owner of the material kept in his
G godown; and it was then that he was told that the same
belonged to Mohammad Jindran, and that Shakeel had brought
the material there. Then, Shakeel had told him that he had done
so upon the instructions of Mohammad Jindran.
H Fifteen days after Eid; Noor Khan (A-50) had gone tq the ·
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1151
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
office of Mohammad Jindran, and had asked him aboutthe A
material kept at his place and had said that he wanted his help
to throw it away. Shakeel had been asked by his employer to
accompany them. They had gone in a jeep to the Dahisar
godown of Noor Khan. There was some waste material in black
colour which was filled into a sack by them. Some bags were B
also kept alongwith the said black coloured waste material. The
sack had been loaded by the watchman into the vehicle, and
Shakeel, alongwith Noor Khan (A-50) had proceeded from
there. After driving for about 10 Kms., their vehicle had been
stopped upon the instructions of. Noor Khan (A-50) near a c
bridge, and Shakeel had ·been asked to throw the sacks. After
throwing the same off the bridge, they had left the place.
However, after driving for about 1 Km., Noor Khan (A-50) had
asked Shakeel where he had thrown the sacks. He was then
informed, that the same had been tt:lrown ne.ar the water. Noor D
Khan (A-50) had then instructed. him to take the vehicle back,
and after reaching the bridge Noor Khan (A-50) had himself
gotten off from the vehicle and had gone under the. bridge, lifted .
the sack, and thrown the :same. into the water.
Noor Khan (A-50) had gone with Shakeel rn the said E
vehicle, to his residence ·at· Mira Road. After their arrest, ·
Shakeel was the only person who had known·that the material
· thrown by him actually con~isted of explosives.
161. Confessional statement .ot' Munna @ F
Mohammad Ali @ Manoj Kumar Bhanwar Lal IA-24):
He had been 26 years of .age at the time of the said
incident, .and has confessed that he had .started a hawala
business with Eijaz Pathan, who lived in Dubai and that he also
had a house in Bombay. Munna (A-24) had developed a cJcise G
acquaintance with Eijaz Pathan, who belonged to the .Kareem
Lala Group, and had thu.s SUGceeded in committing the murder
of Majeed in 1986, and had thereafter, remained absconding
for a long time. Subsequently, he (A-24) had been arrested and .
H
1152 SUPREME COURT REPORTS [2013) 15 S.C.R.
A enlarged on bail. There had been an attempt to kill him, after
he was released on bail. He (A-24) had been introduced to
Tiger Memon (AA) in 1987, while participating in the unloading
of silver at Shekhadi, Shrivardhan. His confession has further
revealed that contraband had in fact, been brought into India
B by Tiger Memon. He had also been instructed by Eijaz from
Dubai, to not tell anybody about the smuggling.
In the 3rd week of March, 1993 while he had been staying
in Marci, Noor Khan (A-50) and Mohammad Jindran had come
C to meet him and had said that some packets of ROX were lying
in the godown and that the same had to be destroyed. Rashid
had told him that for removing the said packets, he had taken
a sum of Rs.5 lakhs. Rashid had taken him the next day to the
Ghodbunder hotel and there he had met Noor Khan (A-50) and
Mohammad Jindran, who had already reached there. They had
D arranged for a dumper from the Sarpanch of the village Anand
Dighe. The material had then been loaded therein, and had
been thrown into the sea. He had thrown about 55 packets of
ROX into Nagla Bandar. Rashid had given him a sum of
Rs.10,000/-. He had subsequently reached the Dawat hotel, to
E receive a sum of Rs.20,000/- from Nopr Khan. However, he had .
been arrested by the police here.
162. Deposition of Fazal Akbar Khan CPW-468):
He had known Rashid and Noor Khan (A-50) for the past
F 15 years. He had been introduced to Munna (A-24), by Rashid
in the third.week of March, 1993. Noor Khan (A-50) had come
to his residence, and had asked him to take him to Rashid.
They had gone to the residence of Rashid at Dreamland ·
Society. Noor Khan (A-50) had told Rashid that somebody had
· G kept some chemicals or something at his place in Dahisar, and
that he wanted his help to destroy the same. The witness,
Rashid and Noor Khan had travelled in the car of Noor Khan,
. to the said place at Dahisar. Here, they had seen 50-60 gunny
bags lying in the shed. Rashid had opened one of the gunny
H bags, and had found that the same contained a black coloured
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1153
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
powder. They had then moved to Ghodbunder with one such A
packet. After reaching there, Rashid had examined the packet,
they had collected from Dahisar. However, Rashid had been
unable to determine what it was. They had thus returned to the
place of Rashid. Then, Noor Khan had asked Rashid to help
him to dispose of the said material. Rashid had asked Noor B
Khan to come to him the next day. All of them had then left the
said place. The witness was called by Rashid the next day, to
his residence at 10.30 a.m. Noor Khan had also been present
there. One other person had also been present there, who was
introduced to the witness as Mohammad Jindran. They talked C
about the disposal of the said material, and subsequently left
the said place, asking Rashid to meet at Ghodbunder the next
day in the morning. Munna (A-24) was also present there. The
witness had stayed in the house of Rashid. He had gone
alongwith Rashid and Munna to Ghodbunder and had found
0
Noor Khan (A-50) and Mohammad Jindran there. Noor Khan
(A-50) had given a packet containing some money to Rashid.
Noor Khan (A-50) and Mohammad Jindran had stayed in a
room of the hotel, while Rashid and Munna had left the said
room. After 10-15 days, Rashid had called the witness from
Behrin, and had said that the sacks which had been disposed E
of contained ROX, and that the witness must not disclose this
fact to anybody, or else he would be killed, alongwith all his
family members. The witness had then become very scared,
owing to the threat that had given to him. The witness has also
identified Noor Khan (A-50) in court. F
163: Deposition of Upendra G. Patel !PW-331:
He is a recovery witness. He has deposed that in all, a total
of three bags had been seized on 18.4.1993. Two bags had
been empty. The third bag had contained some black pieces, G
of which one piece had been taken out and separately packed.
·At the said time, only one piece had thus been taken out of the
bag. The same was weighed and packed in plastic wrap, after
which, it was also wrapped in a piece of paper, in the form of
H
1154 SUPREME COURT REPORTS [2013] 15 S.C.R.
A a paper bag. The said paper bag had been picked up from a
nearby place, under the bridge. His (PW-33) signature had not
been on the paper bag in which the black substance had been.
kept. The paper bag had not been sealed. In court, he had been
unable to say whether the paper in which .the blackish lump was
B wrapped, was the sanie paper bag in Which it had been kept,
when the sample had initially drawn at the time of seizure of
the goods by the Police.
164. Deposition of Wilson John Britto (PW-274):
C He has deposed that he knew Rashid because on one
occasion, he had gone fo his hotel for a meal. On 23.3.1993,
Rashid asked for a room. He had spoken to the senior steward,
Ajit Roop Singh from hi~ hotel. He had then telephoned the Juhu
Office and had talked with his boss Shn Sunil Naik. The witness
D had inform~d Nayak over the phone that one Rashid had come
to ~he said hotel and that he had requested a room. After asking
his boss, he and Ajit Roop Singh had given Room No. 1-A to
Rashid. Rashid· hc;1d paid Rs.300/- to the witness, as a tip.
He had not heard any conversation that had ensued
E ·between. Rashid an ct his companions during the period in·
which, they were at the hotel. He knew ihe names of the three
·companions of the Rashid. This witness could not identify the .
· appellant.(A-SO) in court (after a period of 5 years).
F 165. Deposition of Prakash Dhanaji Khanvilkar
(PW.513!:
During the said interrogation of the appellant (A-50), he
had expressed his desire to make a voluntary statement. The
G witness had thus secured two panch witnesses, and ii was in
their presence that the appellant (A-50) had made a disclosure
statement in Hindi. The same had been recorded after drawing
the memorandum panchanama. As the appellant (A-50) had
. expressed his willingness to take him to a place for recovery,
the witness had also de6ided to accompany the appellant (A-
H
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1155
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
50) to the particular place, that he wished to point out. Thus, A
he had gone alongwith the panch witnesses, police officials and
the appellant, in a police jeep.
In his cross-examination, he has .made it clear that on the
said day, he had reached the detection room at 1.00 p.m. and B
that the appellant (A-50) had been with him from 1.00 p.m. to
6.15 p.m. The panch witnesses had been called at about 3.50
p.m. He has expressed his ignorance as regards whether on
the said day, some Judge had come and conducted remand
proceedings at the Mahim Police Station between 1.00 p.m.
and 3.15 p.m. His deposition has further revealed that he had C
· left the police station with the appellant, and other persons at
about 4.15 p.m. and had returned to the Mahim Police Station
alongwith his team, the accused and the panch witnesses at
about 7.15 p.m. The bridge on the Kaman river from where the
recovery was made, was at a distance of about 35-40 Kms. D
from the Mahim Police Station. He has denied the suggestion
that the appellant (A-50) had not in fact made any disclosure
statement when he had been taken to the bridge on the Kaman
river etc.
E
166. Deposition of Ajit' Pratap Singh IPW.291):
He was 26 years of age and had been carrying on the
business of painting houses. At the relevant time, in the year
1993, he had been working as a waiter in a farm house named, F
"Royal Retreat" which was situated at Kaju Pada on
Ghodbunder road, district Thane. One Shri Kailash Jain,
alongwith others had owned the said farm house. Alongwith
him, one Shri Wilson Britto (PW-274) had been working there
as an assistant. He had worked in the hotel upto 1994. He had
known a person by the name of Rashid, son of Lala Seth, who G
had been carrying on the business of dealing in chemicals near
the said farm house, Rashid had been coming to the said hotel
alongwith his friends and family members, for meals and also
to swim. On 23.3.1993, at about 1.30 p.m. while he had been
present at the said hotel, Rashid had come there alongwith 3- H
1156 SUPREME COURT REPORTS [2013] 15 S.C.R.
A 4 friends in a car, and had asked the witness to open room
No. 1-A for them, and thus, he had opened the said room.
Rashid had stayed in the said room alongwith his friends, and
he had served them lunch. While serving them, he had heard
Rashid telling the others that the goods which had been kept
B in the godown of the appellant (A-50), were to be thrown at the
earliest into the Nagla creek, by taking the same in the vehicle
of Anya Patil, as an investigation by the police was in progress.
Rashid had noticed the presence of the witness, and had
immediately asked him to leave the room and to close the
c door. In court, the witness expressed his inability to identify any
of these friends, who had been present on that day in the hotel,
except Rashid and Munna (A-24) as the deposition had taken
place after a period of five years.
167. Deposition of Dattatray Maruti Wayal (PW.521):
D
He was one of the investigating officers of the case who
had taken up the investigation on 5.5.1993 of C.R. No. 14/93
in the Kapurbawdi Police Station. He has deposed that during
the investigation, he had recorded the statement of about 35
E witnesses, including one Shri Narayan Sitaram Patil (PW-295).
He had also come to knbw, that the land from where the
recovery had been made, had been purchased by the appellant
(A-50) in tfie past, and that he had allowed the construction of
a godown therein. The appellant (A-50) had been keeping
F goats in the said godown, and for such purpose, he had kept
a Gorkha watchman named Pratap Singh to look after the said
goats. The appellant would visit the said godown.
168. Deposition of Kailas Baburao Dawkhar
CPW.518!:
G
He is a formal witness and he has recorded the
statements of Wilson John Britto (PW-274) and Ajitsingh Pratap
Singh (PW-291 ), who had been working as waiters in the resort
where the meeting of accused persons had takt:in place, in
H connection with disposing of the explosive material by dumping
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1157
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
the same into the Nagla creek. Thus, he has proved the A
statement of the witnesses that have been recorded.
169. The evidence referred to hereinabove, regarding the
ownership and possession of the godown, the dumping of the
contraband in the said godown, and the removal 1\lnd final B
disposal of the same by throwing it into the Nagla creek, stands
fully corroborated by the evidence of the aforesaid witnesses.
The said contraband had been destroyed in two installments;
one at the Nagla creek, and another at the bridge on the Kaman
river. The evidence of the witnesses corroborates the case of
the prosecution in entirety. Thus, the case stands proved. C
170. We do not find any force in the submissions made
by Mr. Sinha, learned. c.ounsel appearing for the appellant, to
the effect that as the recovery memo did not contain signature
of the appellant, the same cannot be relied upon, even though, D
to fortify such submission, he has placed very heavy reliance
upon the judgment of this Court in Jackaran Singh v. State of
Punjab, AIR 1995 SC 2345, wherein it has been held that the
absence of signatures or thumb impressions of the accused
upon their disclosure statements, may render the .said I;
statements unreliable, particularly, in a case where the panch
witness has not been examined at a trial, to testify the
authenticity of the same. The judgment relied upon by Shri Sinha
is easily distinguishable, as in the said case none of the panch
witnesses had been examined, while in the instant case, the F
panch witness has been examined.
171. In State of Rajasthan v. Teja Ram & Ors., AIR 1999
SC 1776, this Court while dealing with the issue held:
"The resultant position is that the Investigating Officer is G
not obliged to obtain the signature of an accused in any
statement attributed to him while preparing seizure memo
for the recovery of any article covered by Section 27 of
the Evidence Act. But, if any signature has been obtained
by an investigating officer, there is nothing wrong or H
1158 SUPREME COURT REPORTS [2013] 15 S.C.R.
A illegal about it. Hence, we cannot find any force in the
contention of the learned counsel for the accused that the
signatures of the accused in Exs. P-3 and P-4 seizure
memo would vitiate the evidence regarding recovery of
the axes.
B
172. After appreciating the evidence on record, the
learned Designated Court came to the conclusion that
the appellant had been in the unauthorised possession
of 58 bags of ROX material within the notified area, and
that he had indulged, alongwith the other co-accused
c conspirators. in the disposal of the said ROX material by
dumping the same into the Nag/a creek and the Kaman
river. However, the Designated Court has further held, that
no nexus could be established between the appellant (A-
50) and Tiger Memon (AA). Additionally, the Designated
D Court has stated that there was also no nexus found
between the offences committed in pursuance of the
conspiracy as was hatched by Tiger Memon (AA), and
the acts of the appellant (A-50).
E 173. This conclusion stands fortified from the confessional
statement of the appellant. as well as from the statements of
the other witnesses. The appellant was most certainly had close
association with Mohammad Jindran (AA), Rashid and with a
few other accused persons. The appellant had spent about Rs.5
F lakhs for the disposal of the said material. Rashid, a very close
associate of Tiger Memon (AA) had also been involved in the
process of such disposal. The remnants of the RDX were taken
from his godown, and thrown into the Kaman river. Being in
possession of the said material for a limited time period,
renders him guilty for commission of the offence under Section
G 5 TADA. He is also guilty under Section 201 IPC, as even
though he may not have been directly involved in the disposal
of the contraband, the same was disposed of upon his
instructions, and for this, he had paid a huge amount. The said
material had been brought into India at the Shekhadi landing
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1159
STATE OF MAHARASHTRA [DR. S.S. CHAUHAN, J.]
by·Tiger Memon (AA), and had been stored in his godown at A
Kashimira. Therefore, we see no reason to interfere with the
order passed by the learned Special judge, and the appeal is
accordingly, dismissed.
CRIMINAL APPEAL NO. 919 OF 2008 8
Mulchand Sampatraj Shah ... Appellant
Versus
The State of Maharashtra ... Respondent c
174. This appeal has been preferred against the judgment
and order of conviction and sentence dated 6.6.2007 passed
by a Special Judge of the Designated Court under the TADA
in Bombay Blast Case No. 1 of 1993, by which the appellant
had been convicted under Section 3(3) of Terrorist and D
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred
to as 'TADA') and awarded sentence of 5 years R.I. ahd fine
·· · of Rs.5 lakhs with suitable additional sentence of rigorous
imprisonment in default of payment of fine.
E
175. Facts and circumstances giving rise to this appeal
are that:
A. In addition to the main charge of conspiracy, the
appellant was charged under Section 3(3) TADA for facilitating
and mobilising funds for the absconded accused Mushaq @ F
Ibrahim @ Tiger Memon Abdul Razak Memon (AA) and his
associates by allowing him to operate his hawala account in
the code name HATHI, and rendering financial assistance to
him and his associates which greatly facilitated funding of their
various operations in the commission of various acts i.e. serial G
bomb blasts.
B. After conclusion of the trial, the learned Designated
Court convicted the appellant as referred to herein above.
H
1160 SUPREME CQURT REPORTS . [2013] 15 S.C.R.
A Hence, this appeal.
176. Shri Mukul Rohatgi, Learned Senior, Counsel
appearing for the appellant, has submitted that the appellant
stood convicted under Section 3(3) :rADA for faCilitation by
providing financial assistance to the co-a 0cuser;I Tiger Memon
8
(AA) in various activities. There is no evidence qn record that . ·
the appellant had any- knowledge that Tiger Memon had been
indulging. in terrorist activities. The Bombay blast ti>ok place on
12.3.1993_and a case under. TADA had.been· registered
ag;:iinst Tiger Memon.and others only after .the said incident:
C · The appellant ne·ver came to know, nor had any material been
placed before the Special CourUn the instant case to show that .
Tiger Memon or any other co-accused in this case indulged in
terrorist activiUes .. Even.in case the illeg-al·banking business and
dealing with money of smugglers and other type of criminals is
-D admitted, the question does arise as to whether in such a fact-
-situation, the appellant could have been charged/Convicted
under Section 3(3) TADA. There is nothing i.n the confessional
· statement of the appellant that he had ariy knowledge that Tiger
Mernon indulged in any terrorist activity. It is evident from the
E record that the .appellant was involved in acts subsequent to the
date of commission of the blasts i.e. 12.3.93. .
17_7. Shri Mukul Gupta, learned senior counsel arguing for
the CB.I has vehemently opposed the appeal and has submitted
F that the appellant. (A-97) had been rendering financial
assistance tO Tiger Memon (AA), who was the kingpin of the
. entire episode which lead to not only the death of numerous
innocent people, but also caused the destruction of moveable
and immoveable property. The evidence on record makes it
G abundantly clear lhat the appellant (A-97) had been handling
the fin·ancial accounts of Tiger Memon (AA): This amounts to
finanCial assistance as per Section 3(3) TADA. Therefore, he
abetted the terrorist activities undertaken by Tiger Memon (AA).
Thus, the appeal deserves to be rejected.
H 178. We have considered rival submissions made by the
IBRAHIM MUSA CHAUHAN @BABA CHAUHAN v. 1161
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
learned counsel for the parties and perused the records. A
179. Evidence against the appellant:
(a) Confessional statement of the appellant Mulchand
Sampatraj Shah @ Chokshi (A-97)
B
(b) Confessional statement of Raju Laxmichand Jain
@Raju Kadi (A-26)
(c) Confessional statement of Abdul Gani Ismail Turk
(A-11) C
(d) Confessional statement of Mohmed Rafiq
Mianwala @ Rafiq Madi (A-46)
(e) Confessional statement of Asgar Yusuf Mukadam
(A-10) D
180. Confession of the aooellant Mulchand
Sampatraj Shah @ Chokshi (A-97):
From the confessional statement it has been revealed that
the appellart was doing the business of bank draft di~counting E
in the name and style of 'Chokshi' wherein the appellant used
to take amount from the public, and to return the same in
instalments. At the time of returning the money he used to
deduct the commission and, thus, he had been doing illegal
banking business. He came in contact with Raju Laxmichand F
Jain @ Raju Kadi (A-26), who had the business in the market.
The appellant also became acquainted with Mohammed Dossa
and Tiger Memon (AA). He started the business of money
taking and giving with both of them. He had some dispute in
money transaction with them because of which he was beaten G
by them and the matter was settled after paying a sum of Rs.5
lakhs to them. The appellant was arrested in 1989 for violating
the provisions of Foreign Exchange and Regulation Act, 1973
(hereinafter referred to as 'FERA'). His house was also raided
by the Customs Department in 1989, and since they found H
1162 SUPREME COURT REPORTS (2013) 15 S.C.R.
A some illegal accounts, he was also arrested. The appellant was
again arrested in 1991 by the Central Bureau of Investigation
(hereinafter referred to as 'CBI') in connection with the hawala
business with one Mr. Sham bu Dayal who was doing hawala
. bus.iness· between Bombay and Delhi, and he had furnished
B · some information about the appellant to the department. He
was arrested.and remained in jail for 7 months. Subsequently,
he was enlarged on bai.I.
In the month of September, 1992 Tiger Memon (AA) told
C. him on telephone that he was sending a huge amount of money
through one Farid and the appellant would accept it and hand
it over· to Keshav Dalpat on getting the receipt. He received a
· sum of Rs.25 lakhs and the said amount was paid by the
appellant to Keshav Dalpat. The said Keshav Dalpat was
brought by Raju Kodi (A-26). After 10 days, Tiger Memon
D deposited a sum of Rs.21 lakhs with the appellant, which was
to be given to Namji Dhagwan. In the last week of October
1992, Tiger Memon opened an account with the appellant in
the name of HATHI. Raju Kodi (A-26) had deposited amounts
varying from Rs. 5 lakhs to Rs. 1.89 Crores in the said account
E in November-December of 1992. Immediately, after recording
the confessional statement of the appellant, his· office was
searched and various documents were seized dealing with the
HATHI account. Various transactions were recorded totaling
almost Rs. 1.9 Crores.
F
181. Confessional statement of Raju Kodi (A-261:
Raju Kodi (A-26) in his confessional statement admitted
to his acquaintance with Mushtaq Abdul Razak Memon @ Tiger
Memon (AA). In November 1992, as per the instructions of
G Tiger, A-26 deposited the various amounts in the HATHI
account of Tiger maintained by the appellant (A-97) as Hawala
transactions. The amounts varied from Rs. 16 Lakhs to Rs. 50
Lakhs in the month of November, 1992 and thus, the total
amounted to Rs.181.48 lakh, in the HATHI account of Tiger.
H
IBRAHIM MUSA CHAUHAN @BABA CHAUHAN v. 1163
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
182. Confessional statement of Abdul Gani Ismail A
. Turk(A~11):
Abdul Gani Ismail Turk (A-.11) in his confessional
statement stated that he used to bring and deliver Hawala
money, for which he was paid Rs. 5,000. So, he corroborated
the prosecution case only to the extent that Tiger Memon. (AA) B.
· had Indulged in Hawala transactions. Act1 knew'the·persons,
namely, Asgar,
.
lmtiyaz,. Rafiq
..
Madi,. Salim,
. . -Mustaq,
. . Hi3riif
.
etc.. · ·
· 183. Corif~ssi~nal statement of Mohmed Rafiq Musa ·
Mianwala @ Rafiq Madi (A-46):. ·. · C
. · In his·corifes~ional ~tatenientA-46 has stated that A"97 .·
. had been a very Close asso.ciate of Tiger Memon {AA) .and in ..
. the.month of February 1993, he went to Chokshi (A-19) at Javeri
Bazar, and b~o!)ght Rs. 4 la\d1s from the appellant and gave this 0
· _surh to Yakub at his offi~. .. · · ··
· .184~ 'confessional statement of Asgar Yusuf·
· Mukadam.
(A-10): · .
.·In his confessional statement he has stated that Tiger used E
to deposit hawala money in the HATHI accouni with Chok.shi'
(A-97) and he would withdraw some amount of money as arid·
wh.en required. Tiger. had further told him at the time. of his
departure th.at if Yakub required money, it was to be given froriJ
·the same account. On 9.2.1993, Yakub asked him to transfer F
Rs. 25 Lakhs to Irani's account, and Rs. 10 Lakhs to Ohalia's
, account Which was accordingly done by the accused (A-10).
185. The confession made by the appellant (A-97) stood ·
corroborated by the confessional statements of accused Asgar
Yusuf Ml!kadam (A-10), Raju Laxmichand Jain @ Raju Kodi (A- G
. 26) and Mohmad Rafiq Miyariwala (A-46) to the extent that the
. appellant. was doing the hawala business, and had been
.· receiving the money of various persons including Tiger Memon
(AA).
H
1164 SUPREME COURT REPORTS [2013) 15 S.C.R.
A 186. Legal provisions involved in the case are·:
I. Section 3(3) TADA reads as under:
"(3) Whoever conspires or attempts to commit, or
advocates, abets, advises or incites or knowingly
B facilitates the commission of, a terrorist act or any act
preparatory to a terrorist act, shall be punishable with·
imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life and
shall also be liable to fine." (Emphasis added)
c
II. Section 2(1)(a)(iii) TADA defines the abetment which
involved:
"(iii) the rendering of any assistance, whether financial or
otherwise, to terrorists or disruptionists."
D
Ill. Section 21(2) TADA provides for a presumption which
reads as under:
"(2) In a prosecution for an offence under sub-section (3).
E of Section 3, if it is proved that the accused rendered any
fina~al assistance to a perso,, accused of, or
reasonably suspected of, an offence under that section,
the Designated Court shall presume, unless the contrary
is proved, that such person has committed the offence
under that sub-section." (Emphasis added)
F
IV. Abetment .and harbouring of offenders is also an·
offence under TADA and various other statutes like NDPS Act,
1985, POTA, 2002 and MCOCA, 1999.
G 187. All these statutes also provide that raising funds for .
· terrorist organisations is illegal and such activities are·
a
punishable. However, the general principle is that person so
involved must be found rendering financial assistance to the·
accused of terrorist/disruptive activities, or' couid be reasonably
H suspected in indulging in such activities. Hawala busi_ness is
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1165
. STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
done only on the basis of commission by exchanging money A
among persons and receiving commission. The appellant (A-
97) had been working as a carrier or agent, between the
.persons Indulging. in money transactions in India or abro.ad,
without having any knowledge whatsoever,. that Tiger Memon
cir .his associates .or any other co-accusec,l were 'indulgJng in B
· terrorist activities. tn the instant case, there is nothing on record.'
to show that the appellant (A797) indulged in. such. activi.ties ·
though he might be involved in other ille~alactivi.ties. ·
. 18B."The learned Designated Cour:t recorded the finding
. . . -~ ·C
Mun~~··
\· .
·•. · .
· ·. ··. . ·
. "Thus considering the nature of gravity of act committed· .
. . byA-97 it Wiil be difficult to accept the submission thatthe ·
· highest punishment as prescribed fqr the offence should
. be awarded to him ..... , .. It can be further added that no D
~vidence. has surfaced denoting A-97 hi;1ving. assisted;
· · abetted in·.any manner.any other act or offences committed .
·. by Tiger Memon." · ·
189. In Kalpnath Rai v. State (supra), this Court held:.·
' . . ' .
"If Section 3(4) is understood as· imposing hars·h
punis_hment·on a person who gives shelter.to a terrorist · .
. without knowing that he was a terrqrist, such an ·
unde($tanding would lead to calamitous consequences. .
. Many an innocent person, habituated to offer hospita1ity F .
to friends 9nd relatives or disposed •to zeal of charity, ·
giving ·accommodation and. shelter to others without
. knowing "that their guests were involved in terrorist acts,
·would then be exposed to incarceration for a iong peribd."
G
190. Similarly in Karlar Singh v. State of Punjab, (1994)
3 sec 569, this Court'held:
'· "133. Therefo1e, in order to remove the anomaly in the
H
1166 SUPREME COURT REPORTS [2013] 15 S.C.R.
A vague and imprecise definition of the word, 'abet', we for
the above mentioned reasons, are of the view that the
person who is indicted of communicating or associating
with any person or class of persons who is engaged in
assisting in any manner terrorists or disruptionists should
B be shown to have actual knowledge or to have reason to
believe that the person or class of persons with whom he
is charged to have communicated or associated is
engaged in assisting in any manner the terrorists and
disruptionists.
c 134. To encapsulate, for the discussion above, the
expressions 'communication' and 'association' deployed
in the definition should be qualified .so as to save the
definition, in the sense that ·actual knowledge or reason
to believe" on the part of a person to be roped in with the
D aid of that definition should be read into it instead of
reading it down and clause (i) of the definition 2(1)(a)
should be read as meaning "the communication or
association with any person or class of persons with the
actual knowledge or having reason to believe that such
E person or class of persons is engaged in assisting in any
manner terrorists or disruptionists" so that the object and
purpose of that clause may not otherwise be defeated
and frustrated.
F Section 3 of Special Courts Act, 1984
135. Challenging the validity of Section 3 of Act of.1984,
it has been contended that the power vested under
Section 3(1) on the Central Government to declare by
notification any area· as •terrorist affected area", and
G constitute such area into a single judicial zone or into as
many judicial zones as it may deem fit, is not only vague
but also without any guidance.
136. The prerequisite conditions which are sine qua non
H
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1167
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
for declaring any area as "terrorists affected area" by the A
Central Government by virtue of the authority conferred
on it under Section 3(1) of the Act of 1984 are:
(1) The offences of the nature committed in any area to
be declared as "terrorists affected area" should be one B
or more spetified in the Schedule;
. (2) The offences being committed by terrorists should
satisfy the definition of the nature of the offence
mentioned in Section 2(1)(h), namely, indulging in
wanton killing of persons ot in violence or in the disruption C
· of services or means of communications essential to the
community or in damagingpropertywith a view to commit
any of the offences enumerated under .any of the clauses
· (i) to. (iv) indicated under the definition of the word
'terrorist'; · o
. (3) The scheduled offences committed by terrorists·
should be on such. a f!Cale and in such a manner that it
· .·is eJ<.pedient for the· purpose of coping with the activities
c::c~~ch terrorists to .have recourse to the provisions of this E
137: Unless all the .above three conditions are· fully
satisfied, the Central Government cannot invoke the
power under Section 3(1) to declare any area as "terrorist
affected area". In other worqs, in the absence of any of F
the con,ditions, Section 3(1) cannot be invoked. Tf!erefore,
the contention that Section 3(1) suffers from vagueness
and lacks guidance is· unmerited."
191. In view of the above, the law requires that an accused G
under TADA must abate knowingly the commission. of terrorist
act and/or he mu::it be rendering financial assistance to such
ari accused, or could be reasonably suspected of being such
accused. Therefore, the question does arise as to whether the
appellant had any reason to believe that Tiger Memon and his H
1168 SUPREME COURT REPORTS (2013] 15 S.C.R.
A associates were accused of any terrorist act, or could be
· reasonably suspected to be such accused.
192: lmmediateiyafter the arrest of appellant (Ac97), .he·
apprehended that he would be forced to make a confession.
Therefore, a large number of letters had been sent to Mr. V.R
B Lokhande, DCP, which he had received prior to recording of
the confessional statemeni. This is evident from the letter dated
16.5.1993 written by the counsel of the appellant requesting
V.B. Lokhande not to record his confessional statement.
because the appellant did not want to make any such
C statement.
193. In the cross-examination of Shri V.B. Lokhande,
DCP (PW-183) admitted that he had received ietters and
telegraphs particularly in reply to question nos ..123, 124.
D Further, while replying to question no .. 125 he stated that he had
not made any attempt to ask the appellanlbefore recording his ·
confessional statement whether he (A-97)' wante(J to make a
·confessional statement.
194. It is further submitted that confessional statement tiad
E been obtained by coercion i.e. beating the appellant. There is
ample evidenee on record that he had a large number of injuries
upon his body at the relevant time. He made a complaint in
writing to the court, and the court issued certain directions for
his treatment and asked for the report. The confessional
F statement was recorded on 18.5.1993. He·was produced for
the first time before the court on 25.5.1993 when the complaint
was lodged, and the injury report was given. The report gave .
the details of various injuries ori his buttocks, wristand lower
leg.
G
195. In this respect, the court passed certain orders which
read as under:
"25.5.1993 :
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN. v. 1169
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
... Accused Mulchand Shah is not. produced before this A
court till 4 p.m. as· the CMG on duty .has referred the
accused Mulchand Shah to senior doctor for second
opinion .....
26.5.1993:
B
..... Accused Mulchand Shah produced before the court, the
police is seeking further custody of the accused for -the
purpose of .investigatio'n. The accused has produced
· before the court on 25.5.1993 and 'he made a grievance
that he was assaulted while in police custody. The C
.· accused was sent for medical report from G.T. Hospital
does support his ailegations,
: ..... Further police custody of the accused would have
definitely help the investigating agency but, .the
investigation agency :having assaulted to ttiird degree . D
method, itwill·notbe safe to remand the accused to their
custody instead the investigating agency can interrogate
the accused in jail..
·· .... The accused. is remanded to judicial custody till E
22.6.1993." . .
196. In this respect, a large number pf documents had
.been placed on record to show that complete information
regarding the torture had been· placed before the court by the F
counsel. .From the relevant part of the letter dated 20.5.1993
written' by Shri Pervez M. Rustomkhan, Advo'ca\e, to Mr.
Pharande, Inspector of Police ·(Worli), Crawford Market,
Bombay, it is clear that not only had the appellant been beaten
. but his family members had also been beaten and harassed.
G
Even his brother Ramesh Kumar, a handicapped man, had not
been spared. These incidents took piace on 12.4.1993, .
14.4.1993, 15.4.1993, 16.4.1993, 17.4.1993, 21.4.1993,
22.4.1993, 5.5.1993 and 8.5.1993. ltwas also mentioned in that
· 1etter that the appellant had falsely been implicated .in the case H
1170 SUPREME COURT REPORTS [2013] 15 S.C.R.
A and had been tortured and forced to sign some writings under
duress and pressure from the police authorities which may be
used against him.
197. In Sahib Singh v. State of Haryana, (1997) 7 SCC
231, this Court held that 'Confession' means:
B
"39. The Evidence Act contains a separate part dealing
with "Admission". This part comprises Sections 17 to 31.
"Confession" which is known as a species of "Admission"
is to be found contained in Sections 24 to 30. ·
c 41. In view of these decisions, it is now certain that a ·
"confession" · mus{ either be .. an express
acknowledgement of guilt of the. off~nce charged, cf!rtain
and complete. in. itself, or it must· admit sub:;;tantially all
the facts which constitute the offence. · ·
D
42. Section 24 provides, though in the negative forin; that
"confession" can b.e treated as relevant against the ·
person making the confession unless it ·appears. to the
court that itis rendered irrelevant on account of any of
E the factors, namely, .thre.at, inducements, promises etc.
mentioned therein. vvhether: the "confession" att;acts the
frown of Section 24 has to be considered from the point
of view of the c,onfessing accused as to how the
inducement, threat or promise from a person in authority
F would operate in his mind. (See: Satbir Singh V: State of
funjab, (1977) 2 SCC 302.) The "confes.sion" has to be
affirmatively proved to be free and voluntary. (See: Hem
Raj Devi/al v. State of Ajmer, (1977) 2 SCC 263) Before
a conviction can be based on "confession~· it has to be
G . shown that it was truthfui.
46. ·The Act, /;ke the· Evidence Act, does not define
"confession" and,· therefore, the principle.s enunciated by
this Court with regard to the meaning of "confession"
under the Evidence Act shall also apply to a "confession"
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1171
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
made under this Act. Under this Act also, "confession" A
has either to be an express acknowledgement of guilt of
the offence charged or it must admit substantially all the
facts which constitute the offence. Conviction on
"confession" is .based .on the maxim "habemus optimum
testem, confitentem reum" which means that confession B
of an accused is the best evidence against him. The
rat(ona/e behind this rule is that an ordinary, normal and
sane person would not make a statement which would
incriminate him unless urged by the promptings of truth
and conscience.
c
52. Ti'1e confessional statement does not admit even
substar;ti:;ll;; the basic fa·cts of the prosecution story,
in2'sr;;;;{,:, a:; in the confessiona./ statement, no role is
assigned to the appellant while in the prosecution story
an active role has been assigned tO him by showing that D
· he .too was armed with a gun and had gone to the spot
and participated in the commission of the crime by firing
his gun specially at the injured witness. The confessional
statement is not truthful and is part of the hallucination
with which the prosepution and its witnesses were E
suffering. It is accordingly discarded and cannot be.acted
upon."
198. The only question is, whether the provisions of Section
21 (2) provides that in a prosecu.tion for an offence under sub-
f.
section (3) of Section 3, if it is proved that the accused rendered
any financial assistance to a person accused of, or reas-0nably .
suspected of, an offence under that section, the Designated
Court shall presume unless the contrary is proved, that such
person has committed the offence under that sub-section. Thus,
the provision of Section 21(2) can be resorted to, only in case G
it is proved by the prosecution that the accused rendered any
financial assistance to a person who has already been facing
the charge of terrorist or disruptive activities or he had reasons
to suspect that the person to whom financial help has been
H
1172 SUPREME COURT REPORTS [2013J 15 S.C.R.
A rendered was indulging in such activities. Thus, there is a
burden on the prosecution first to prove the aforesaid condition.
In case, it is successfully proved that the person who render
. financial assistance to a person accused of terrorist/disruptive
activities or suspect to be indulging in such activities, only then
8 the presumption can be drawn.
In such a situation, it is not possible for us to accept the
submission of Mr. Mukul Gupta, learned senior counsel
appearing for the respondent, that even if a person has
rendered financial assistance prior to or during a part
C proceeding, to the parties indulged in such activities, the
provision of Section 21 (2) would be attracted. On a literal
interpretation of the provision such a construction is not
permissible. There is nothing on record to show that during the
time the appellant facilitated the financial transaction of Tiger
D Memon in the fake account named 'HATH!' and that he had
reason to suspect that Tiger Memon or his associates were
indulging in disruptive activities, or had been accused in such
activities. The appellant may be guilty of running and indulging
in fraudulent banking activities, or may be violating of provisions
E of other statutes but cann?t be held guilty of the offences under
Section 3(3) TADA.
199. In the instant case, there is nothing on record to show
that any person could imagine what Tiger Memon (AA) was
F. planning. In fact it was only after 12.3.1993, the date of Bombay
blast, that the provisions of TADA could be attracted as far as
·nger Memon (AA) is concerned. Thus, he tA-97) cannot be held
to be guilty under the said provisions. There is nothing on
record on the basis of which an inference can be drawn, that
. the appellant (A-97) could reasonably suspect indulgence of
G Tiger Memon (AA) in terrorist or disruptive activities.
200. Section 2(1)(a)(iii) TADA provides that abet, with its
variations and cognate expressions, includes rendering of any
assistance whether financial of otherwise, to terrorists or
H . disruptionists.
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v.1173
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
~01. The learned Designated Court after appreciating all A
the evidence ori record came to the conclusion that the phrase
'financial assistance' should notbe given a restricted meaning,
to include only assistance given by the concerned accused
from his own money. The learned court went on to state that
even allowing a terrorist to circulate his money should come B
within. the ambit of that phrase, through an illegal account as
· maintained for Tiger Memon (AA) by Sampatraj (A-97) ..
· 202. In the case at hand, as it cannot be held even by
stretch of imagination thaLTiger Memon (AA) !ind his
associates had been accused of such ·activities prior to C
· 12.3.1993, or could reasonably be suspected of being indulged
in such activities, the provisions ·Of TADA are not attracted so
far as the appellant is concerned. Therefore, we cannot agree
with the order passed by the learned Designated Court so far
as the appellant (A-97) is concerned. The appeal is therefore, D
allowed .. The conv.iction and sentence awarded by the
Designated Court are set aside. The appellant is on bail. His
bail bonds stand discharged.
CRIMINAL APPEAL NO. 1393 OF 2007
Ehsan Mohammad Tufel Qureshi ... Appellant
Versus
Stale of Maharashtra . . . Respondent F
· 203. This appeal has been preferred against tl:le impugned
judgment and orde.r dated 29.5.2007, passed by a Special
·Judge of the Designated Court under the TADA for Bombay
Blasts, Greater Bombay, in th.e Bombay Blast .Case No. 1/
1993. The appellant has been charged under various heads, G
including for the general charge of conspiracy. The appellant
has been convicted under Section 5 TADA, and has been
awarded a sentence of 5 years rigorous imprisonment .
alongwith a fine of Rs.25,000/-, and in default of payment of
H
1174 SUPREME COURT REPORTS (2013) 15 S.C.R.
A fine, to suffer further R.I. for six months, and also under Sections
3 and 7 r/w Section 25(1-A)(1-B)(a) of the Arms Act. However,
no separate sentence has been awarded separately for this
offence.
204. Facts and circumstances giving rise to this appeal
8 are that:
A. In addition to the main charge of conspiracy, the
appellant (A-122) was charged as he had agreed to keep in
his possession, one Mauser pistol and 16 live cartridges that
C had been given to him by Firoz @ Akram Amani Malik (A-39),
and also that there had been certain other acts that were
committed by him in pursuance of the general charge of
conspiracy.
D 8. After conclusion of the trial, the learned Special Judge
convicted the appellant and sentenced him as referred to
hereinabove.
Hence, this appeal.
E 205. Shri Mushtaq Ahmad, learned counsel appearing for
the appellant has submitted that the appellant had been
dragged in trial only being relative of Fazal, though he was not
involved in the offence. The arms and ammunition alleged to
have been recovered from his possession might have peen that ,
F of Fazal sister's husband. He was sold the weapons by Firoz
@ Akram Amani Malik (A-39), and he was not aware of the
fact that it was one of arms which ha'd been smuggled into the
country to commit terrorist acts. Thus, the appeal deserves to
be allowed.
G 206. Per contra, Shri Mukul Gupta, learned senior counsel
appearing for the State has submitted that he was found in
conscious possession of the arms and ammunition in the
notified area and therefore, the learned Designated Court has
rightly convicted the appellant under the provisions of TADA.
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1175
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
The appeal lacks merit and is liable to be dismissed. A
207. We have considered the rival submissions made by
the learned counsel for the parties and perused the records.
208. Evidence against the appellant CA-122!: ·
B
.· (a) . Confessional statement of Firoz @ Akram Amani
Malik (A~39)
(b) Deposition of Rohitkumar Ramsaran Chourisa ·
(PW-39)
c
(c) . Deposition .of Prakash Dhanaji Khanvilkar (PW-
513)
(d) Deposition of Vishnu Ravalu Shinde (PW~615)
209. Confessional Statement of Firoz @ Akram D
Amani Malik CA-39) :
His confessional statement was recorded on 23.4.1993,
wherein he has revealed his participation in the conspiracy, and
his inclusion thereof, in the Bombay blast. He has further stated E
that Zakir had given him 4 handgrenades, one pistol and ia
cartridges. He had kept the said weapons with his brother-in-
law (sister's husband), Fazal. He had taken back the pistol from
Fazal on 29.3.1993, and had thereafter, sold the same to Ehsan
-' (A-122) for Rs.' 15,000/-, but Ehsan had 9iilen him only F
· Rs.5,000/-, Ehsan had also been given the cartridges and had
been showed how to use them. After the arrest of the appellant,
he had been interrogated on 5.4.1993, and it was in the course
of this, that he had expressed his willingness to make a
disclosure statement. Therefore, two panch witnesses had G
been called, and in their presence, he had made his.disclosure
statement; ·wherein he has stated that. he had given the
appellant (A-122), one pistol and 16 cartridges. The said
', panchnama was duly signed by the investigating officer, the
H
1176 SUPREME COURT REPORTS [2013] 15 S.C.R.
A panchas and the accused (A-39) himself.
210. Deposition of Rohitkumar Ramsaran Chourlsa
(PW-39):
The panch witness has deposed that he had been running
B a pan shop that was situated by the side of the Irani Restaurant
which was located within the Cadell Court building, situated on
Cadell Road, Mahim. One police constable had approached
him and had asked him to accompany him to the Mahim Police
Station, as he had been called by the station incharge. The
C constable had stated that he could not disclose the reason/
purpose for which he had been called there, and had only told
him that the Inspector would explain the same to him. His friend
Ramesh Govalkar had also accompanied him. They had then
gone to the Mahim Police Station with the constable. They had
o been taken to the Detection Room, and upon reaching the
same, he had found therein, 718 police constables, alongwith
one other person who was·sitting on a chair. Two persons had
also been standing by his side in civilian clothes. He had been
introduced by the police constable to the inspector i.e. to P.I.
E Hadap and AP.I. Khanvilkar. The police officers had informed
him that the p~rson who was sitting on the chair, wai> an
accused in the Bombay blast case, and that therefore, he (PW-
39) may act as a panch witness. He had immediately agreed
to the same. He had then been told, that the accused had
F wanted to make a disclosure statement, and therefore, he must
pay close attention to it. The person sitting there had then stated
that he was Ehsan Mohmed Tafel Mohmed (A-122). He had
further said that one pistol and some cartridges had been kept
by him and his associate Salim Shaikh, at a particular place. If
the officers would come with him, he would also show them
G where such material had been kept. A memorandum
panchnama to this effect had been prepared and explained to
the witness in Hindi and Marathi, and then signed. This witness
has also identified the panchnama that had been prepared at
the police station on 5.4.1993 (Exhibit 119). He has further
H
IBRAHIM MUSA CHAUHAN @ BABA CHAUHAN v. 1177
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.)
deposed that the appellant (A-122), the police officials and the A
panch witnesses had gone together from Fort Road to Mahim
Junction and then to Mahim Causeway, Bandra Reclamation.
The appellant (A-122) had stopped at the corner, and had told
them that they had to go down to the Creek. The appellant (A-
122) h;:id then gone down to the Creek with the police B
constables escorting him, as well as the panch witnesses. The
same was a dirty place filled with water. The appellant (A-122)
had then put his hand in the water, and in one attempt had taken
out the plastic bag. Upon opening the bag, the same was found
to contain one pistol and eight cartridges. The eight cartridges C
were separate from the pistol. P.I. Hadap had picked up the
pistol, and taken out its magazine. The magazine had also
contained eight cartridges. Thus, in all there were sixteen
cartridges. The pistol was black in colour, and its name had
been rubbed off. On the cartridges, the digits,,"11/83" were
inscribed. He has further deposed that A.P.I. Khanvilkar had 0
placed the contraband in a plastic bag, and upon this requisite
signatures had been duly taken. When the sealed packet was
opened, it was found to contain a 7 .62 mm pistol with magazine.
It also contained sixteen intact 7.62 bottle necked pistol
cartridges, having head stamp markings of, "11/83". The E
witness has identified the pistol as being the same one, that
had been recovered from his person, through a seizure
panchnama, as also the cartridges and his signature appearing
on their labels.
F
The witness has been cross-examined. A large number of
suggestions have been made: and certain contradictions have
also been pointed out. However, he has explained everything,
and has revealed that he had been able to identify the pistol
(Article 48) because the same was black in colour, and on the G
body of the said pistol, at the front, only metal had been visible.
211. Deposition of Prakash Dhanaji Khanvilkar,
Police Inspector. (PW-513):
.·.·H
1178 SUPREME COURT REPORTS [2013] 15 S.C.R.
A He has deposed that on 5.4.1993, he alongwith other
officers had interrogaied the appellant (A-122) at the Mahim
Police Station. He had been arrested earlier on the same day
in L.A.C. No. 389/93. During his interrogation, the appellant (A-
122) had expressed his desire to make a confessional
8 statement. Thus, he had secured two panch witnesses and in
their presence, the appellant's (A-122) statement had been
recorded in Hindi, and for this purpose, a memorandum
panchnama had also been drawn up. He has identified the
signatures that had been put on the panchnama by the panchas,
C and by himself. The appellant (A-122) had also taken them to
Mahim Creek to get the recovery effected, and after reaching
the Creek, he had gone 3 to 4 feet away from the shore, into
the creek water. He had then taken out orie plastic bag from
the creek water, and had handed over the same to this witness.
He had opened the said bag, and found that it contained one
D foreign made pistol loaded with magazine, containing eight 9
mm rounds in it. The said bag had also contained eight 9 mm
loose rounds. He had taken charge of the said articles. All
.sixteen loose rounds had the digits "11/83" marked on the base·
of the cap of the said bullets. The said pistol and magazines
E had then. been packed into a white plastic bag, wrapped with
brown paper, and tied with a white string and sealed. A label
duly signed by the panch witnesses and the witness had also
been affixed to the package. Hence, he has corroborated the
deposition of Rohitkumar Ramsaran Chourisa (PW-39).
F
212. Deposition of ~ishnu Ravalu Shinde (PW-615):
He has proved the forwarding letter dated 6.5.1993, by
which the material .so collected had been sent for F.S.L. The
other witnesses have also proved the receipt of the said
G material for F.S.L., and its report has revealed that the pistol
had been in working condition, and that all the 16 cartridges
were live.
213. In view of the above, it is evident that a pistol had
H been sold by Firoz (A-39) to the appellant (A-122), and that it
IBRAHIM MUSA CHAUHAN.@ BABA CHAUHAN v. 1179
STATE OF MAHARASHTRA [DR B.S. CHAUHAN, J.]
had been the accused (A-39), who had taught the appellant how A
to use the cartridges. It is also evident that the recovery had
·been effected from Mahim Creek, on the basis of the disclosure
state)Tlent made by the appellant.' as has been deposed by the
panch witness (PW-39).
214. The learned Designated Court, after appreciation of B
the evidence, has held that though ttie appellant had been in
possession of arms and ammunition in an unauthorized manner,
the same does not .ih any way, show the complicity of the
·accused in the c.onspiracy relating to the blast of 12.3.1993. ·
c
215. We. find no cogent reason to interfere with the
findings of the learned Designated Court. The appeal lacks
. merit and is ·acco.rdingly, dismissed.
216. Before parting with the case, we will clarify that if the
· accused-appellant(s) whose appeals have been dismissed and · D
are on bail, their bail bonds stand cancelled and they are
directed to surrender wiihin four weeks from today, failing which
the learned Designated Court, TADA shall take them into
custody and send them to jail to serve out the remaining part
of their sentences. E
Bibhuti Bhushan Bose Appeals dismissed.
1180 SUPREME COURT REPORTS [2013] 15 S.C.R.
A Annexure 'A'
s Criminal Accused Name Sentence Awa rd
No Appeal and Number. Designated by
Court Supreme
Court
8 1. 555 of 2012 Ibrahim Musa 8 years RI Dismissed
Chauhan @ Baba with fine of
Chauhan(A-41) Rs. 1 lakh;
10 years RI
with fine of
Rs.50,000/-;
c 10 years RI
with fine of
Rs.1 lakh; 4
years RI
with fine of
D Rs.25,000/-;
and one year
RI with fine of
Rs.2,000/-
2 1129-1130 Altaf Ali Sayed 10 years RI Dismissed
E of 2007 ((A-67) with fine of
Rs.50,000/-;
and 10 years
with fine of
Rs.2 lakhs
F 3. 402 of 2008 Mohammed Sayeec 6 years RI Dismissed
Mohammed lsaaq with fine of
(A-95).
Rs.15,000/-
4. 617-618 of Ayub Ibrahim 5 years RI Dismissed
G 2008 Qureshi(A-123) with fine of
Rs.12,500/-;
and 5 years
RI with fine of
Rs.12,500/-
H
IBRAHIM MUSA CHAUHAN@ BABA CHAUHAN v. 1181
STATE OF MAHARASHTRA [DR. B.S. CHAUHAN, J.]
A
5. 1631 of Mohd. Yunus Gulam 6 years RI Dismissed
2007 Rasool Botomiya with fine of
(A-47) .Rs.25,000/-;
and 6 years
RI with fine of
Rs.25,000/- B
6. 1419 of Mohamed Dawood 6 years RI Dismissed
2007 Mohamed Yusuf with fine of
Khan (A-91) Rs.25,000/-;
and 6 years
RI with fine o
c
Rs.25,000/-
7. 1226 of Ramesh Dattatray 6 years RI Dismissed
2007 Mali (A-101) with fine of
Rs.25,000/- D
8. 1422 of Shaikh Asif Yusuf 5 years RI Dismissed
2007 (A-107) with fine of
Rs.25,000/-;
8 years RI
with fil"}e of E
Rs.50,000/-;
and 8 years
RI with fine
of Rs.50,000
,. . F
9. 1180 of Mubina @ Baya 5 years RI Allowed
2007 Moosa Bhiwandiwala with fine of Conviction
• (A-96) Rs.25,000/- and
sentence
awarded
by the G
Designated
Court are
set aside.
H
"/
1182 SUPREME COURT REPORTS [2013] 15 S.C.R.
A 10. 1225 of Noor Mohammed 5 years RI Dismissed
2007 Haji Mohammed with fine of
Khan (A-50) Rs. 1 lakh;
and 5 years
RI with fine of
Rs.50,000/-
B
11. 919 of 2008 Mulchand 5 years RI Allowed
Sampatraj Shah with fine of Conviction
(A-97) Rs.5 lakhs and
sentence
c .awarded
by the
Designated
Court are
set aside.
D
12.1393of Ehsan Mohammad 5 years RI · Dismissed
2007 Tufel Qureshi with fine of
(A-122) Rs.25,000/-
E All these appeals filed by the accused have been
.. dismissed except Criminal Appeal Nos. 1180 of 2007 (Mubina
@ Baby Moosa Bhiwandiwala (A-96) and Criminal Appeal No.
919 of 2008 (Mulchand Sampatraj Shah (A-97). The appeals
filed by A-96 and A-97 are allowed. Their conviction and
sentence awarded by the Designated Court are set aside and
F their bail bonds stand discharged.
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