Ahmed Shah Khan Durrani @ A.S. Mubarak S Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 1438 of 2007
with
Criminal Appeal Nos. 912, 1311, 1420, 1423, 1439, 1630 , 1632 of 2007
with
Criminal Appeal Nos. 171, 172, 203, 207, 271, 512, 675-681 of 2008
with
Criminal Appeal No. 2173 of 2010
with
Criminal Appeal Nos. 396, 398, 401, 403, 406, 408, 414, 415, 416, 417, 595, 598, 600 and 1610 of 2011
with
Criminal Appeal Nos.1029, 1030, 1031, 1032, 1034 and 1035 of 2012
[From the Judgement and Order dated 30.05.2007 of the Presiding Officer of the Designated Court, under TADA (P) Act, 1987 for Bombay Blast Cases, Greater Bombay in Bombay Blast Case No. 1 of 1993]
with
Criminal Appeal Nos. 912, 1311, 1420, 1423, 1439, 1630 , 1632 of 2007
with
Criminal Appeal Nos. 171, 172, 203, 207, 271, 512, 675-681 of 2008
with
Criminal Appeal No. 2173 of 2010
with
Criminal Appeal Nos. 396, 398, 401, 403, 406, 408, 414, 415, 416, 417, 595, 598, 600 and 1610 of 2011
with
Criminal Appeal Nos.1029, 1030, 1031, 1032, 1034 and 1035 of 2012
[From the Judgement and Order dated 30.05.2007 of the Presiding Officer of the Designated Court, under TADA (P) Act, 1987 for Bombay Blast Cases, Greater Bombay in Bombay Blast Case No. 1 of 1993]
Petitioner: Ahmed Shah Khan Durrani @ A.S. Mubarak S
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 1438 of 2007
with
Criminal Appeal Nos. 912, 1311, 1420, 1423, 1439, 1630 , 1632 of 2007
with
Criminal Appeal Nos. 171, 172, 203, 207, 271, 512, 675-681 of 2008
with
Criminal Appeal No. 2173 of 2010
with
Criminal Appeal Nos. 396, 398, 401, 403, 406, 408, 414, 415, 416, 417, 595, 598, 600 and 1610 of 2011
with
Criminal Appeal Nos.1029, 1030, 1031, 1032, 1034 and 1035 of 2012
[From the Judgement and Order dated 30.05.2007 of the Presiding Officer of the Designated Court, under TADA (P) Act, 1987 for Bombay Blast Cases, Greater Bombay in Bombay Blast Case No. 1 of 1993]
with
Criminal Appeal Nos. 912, 1311, 1420, 1423, 1439, 1630 , 1632 of 2007
with
Criminal Appeal Nos. 171, 172, 203, 207, 271, 512, 675-681 of 2008
with
Criminal Appeal No. 2173 of 2010
with
Criminal Appeal Nos. 396, 398, 401, 403, 406, 408, 414, 415, 416, 417, 595, 598, 600 and 1610 of 2011
with
Criminal Appeal Nos.1029, 1030, 1031, 1032, 1034 and 1035 of 2012
[From the Judgement and Order dated 30.05.2007 of the Presiding Officer of the Designated Court, under TADA (P) Act, 1987 for Bombay Blast Cases, Greater Bombay in Bombay Blast Case No. 1 of 1993]
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Appearances:
Appearances
Mr. Rajesh Pd. Singh, Mr. Mushtaq Ahmad, Mr. Arvind Kumar Sharma, Mr. K.N. Rai, Ms. Farhana Shah, Dr. Sushil Balwada, Dr. Kailash Chand, Mr. Sanjay Jain, Mr. P. Parmeswaran, Mr. Vishwa Pal Singh, Mr. B. Krishna Prasad, Ms. Anjali Jha, Advocates, for the Appearing Parties.
Mr. Rajesh Pd. Singh, Mr. Mushtaq Ahmad, Mr. Arvind Kumar Sharma, Mr. K.N. Rai, Ms. Farhana Shah, Dr. Sushil Balwada, Dr. Kailash Chand, Mr. Sanjay Jain, Mr. P. Parmeswaran, Mr. Vishwa Pal Singh, Mr. B. Krishna Prasad, Ms. Anjali Jha, Advocates, for the Appearing Parties.
Head Note:
CRIMINAL LAWS
FIR – Bombay blast case – Plea that there were two FIRs for same incident. Held is incorrect. Only one FIR was exhibited in court and FIR number connecting the case was same. (Para 8)
FIR – Bombay blast case – Plea that there were two FIRs for same incident. Held is incorrect. Only one FIR was exhibited in court and FIR number connecting the case was same. (Para 8)
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 5 – Conviction under – Bombay blast case – Recovery of contraband at instance of appellant no. 20 – Recovery panchnama duly signed by panch witnesses and by inspector ‘S’ – Absence of appellant’s signature – Contraband kept in the loft of the factory of which appellant was a partner – Source of knowledge of such contraband being kept in the factory not explained by appellant – Designated Court holding the recovery to be proved as appellant alone had the knowledge where contraband was hidden – Inference of guilt drawn – Plea of appellant that he was not in possession of key – Whether enough to tilt the balance in his favour. Held, no. No interference needed.
Panch witnesses – Reliability – Panch witness, resident of building which was opposite to the office of Police Commissioner – Earlier also acted as panch witness – Whether reliable. Held police is not expected to travel far in search of a panch witness, as panchnama should be recorded in a close proximity of time when accused is wanting to make a disclosure. Travelling far is likely to invite objections as to why panch witness could not be found from a nearby place.
Evidence of panch witnesses – Minor discrepancies / contradiction. Held discrepancies which do not affect the root of the matter should be ignored. (Para 23)
Held:
There is sufficient material to show that the recovery had been made at the behest of the appellant (A-20) from the factory owned by a partnership to which he was the partner alongwith one Surjit Singh. In such a fact-situation, he ought to have explained the reason/source of his knowledge of such contraband articles being kept in his factory. (Para 16.1.)
The explanation that at the time of recovery he did not have the key, would not be enough to tilt the balance in his favour. The fact that he did not have the key becomes totally redundant, as no conclusion can be drawn that the appellant (A-20) was not in possession of the said premises, and in such a fact-situation, it cannot be held that the appellant (A-20) was not in conscious possession of the contraband material. (Para 18)
As the appellant (A-20) made a statement leading to the discovery of AK-56 assault rifle and two magazines having kept in his workshop and the same had been found concealed on the loft, he cannot escape from the liability of possessing and concealing of the same, thus liable to be punished under Section 5 TADA. We see no reason to interfere with the conclusion drawn by the learned Designated Court. The appeal is accordingly dismissed. (Para 25)
The police when searching for a panch witness, need not go to far off place of the police station as the panchnama is required to be recorded in a close proximity of time, when the accused apprehending his disclosure statement. Therefore, on such material suspicion about the credential of the police or panch witnesses cannot be doubted, unless there is some material to prove the contrary. Had it been picked up from a far off place, criticism could have been otherwise as to why the panch witness could not be called from neighbourhood. (Para 20)
JUDGEMENT:
Dr. B.S. Chauhan, J.
1. This appeal has been preferred against the impugned judgment and order dated 30.5.2007, passed by Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA) for the Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/1993, convicting the appellant under Section 5 TADA, and awarding the punishment of 5 years RI, alongwith a fine of Rs.25,000/-, and in default of payment of fine, to further undergo RI for 6 months.
2. Facts and circumstances giving rise to this appeal are that:
A. As the facts of this case and all legal issues involved herein have been elaborately dealt with in the connected appeal i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI], it may be pertinent to mention only the relevant facts and charges against the appellant (A-20).
B. Bombay Blast took place on 12.3.1993 in which 257 persons lost their lives and 713 were injured. In addition thereto there had been loss of property worth several crores. The Bombay police investigated the matter at initial stage but subsequently it was entrusted to the Central Bureau of Investigation (hereinafter referred to as CBI) and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including appellant (A-20) stood convicted.
C. The appellant had been charged for general conspiracy which is framed against all the accused persons for the offences punishable under Section 3(3) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B) (a) of the Arms Act, 1959 (hereinafter referred to as the Arms Act), Sections 9-B(1)(a)(b)(c) of the Explosives Act, 1884. Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984.
D. In addition to the general charge of conspiracy, he had also been charged under Section 3(3) TADA, under Section 5 TADA for keeping one AK-56 rifle plus two empty magazines and committed an offence in respect of the same under Section 6 TADA, and under Section 3(4) TADA read with Section 212 IPC, for harbouring criminals.
3. After conclusion of the trial, the appellant (A-20) had been convicted under Section 5 TADA, and awarded the sentence as mentioned hereinabove.
Hence, this appeal.
4. Shri Sunil Kumar, learned senior counsel appearing for the appellant (A-20), has submitted that conviction of the appellant (A- 20) under Section 5 TADA, was not warranted in view of the fact that the recovery had not been proved in accordance with law. The disclosure statement alleged to have been made under the provision of Section 27 of the Indian Evidence Act, 1872 (hereinafter called Evidence Act) has not been strictly followed. The said alleged disclosure statement did not bear the signature of the appellant (A- 20). There were two panch witnesses, only one has been examined. The panch witness examined in the case had been a stock witness in the police as he had appeared as a panch witness in other cases. He was the resident of an area in close vicinity of the office of the Crime Branch of the police department. The watchman of the Ghanshyam building from which the recovery had been made, has not been examined. None of the neighbours of that building have been examined as witnesses. There are material contradictions/omissions in the deposition of the witnesses. Even the case number has wrongly been mentioned. The L.A.C. No.22/93 had been manipulated and it was shown as L.A.C.No.23/93. Even the recovery of the AK-56 rifle does not give rise to the presumption of possession. It was further submitted that the confession of the appellant (A-20) had been obtained by coercion by severely beating him. Therefore, the appeal deserves to be allowed.
5. On the contrary, Shri Mukul Gupta, learned senior counsel appearing for the respondent, has vehemently opposed the appeal contending that the confession of the appellant (A-20) has not been relied upon by the Designated Court, therefore, it remains inconsequential. Only one of the panch witnesses had been examined in order to avoid multiplicity. Mere non-examination of the other panch witnesses would not make the case of the prosecution doubtful. The recovery had been made strictly in accordance with law and in case the recovery had been made at the instance of the disclosure statement and from the place on which the appellant (A-20) had control over, the presumption has rightly been drawn, particularly in view of the fact that the appellant (A- 20) did not lead any evidence in defence. Thus, the appeal is liable to be dismissed.
6. We have considered the rival submissions made by learned counsel for the parties and perused the record.
7. Evidence against the appellant (A-20):
(a) Confessional statement of the appellant (A-20)
(b) Confessional statement of Murad Ibrahim Khan (A-130)
(c) Deposition of Mohamed Ayub Mohamed Umar (PW-72)
(d) Deposition of Sahadev (PW-181)
(e) Deposition of Nagesh Shivdas Lohar (PW-356)
(f) Deposition of Shivaji Shankar Sawant (PW-524)
(g) Recovery of AK-56 rifle and two magazines
Confessional statement of the appellant (A-20):
8. The confessional statement made by the appellant has not been relied upon by learned Special Judge. Therefore, we are not making any reference to it and it has to be ignored. More so, we do not find any force in the submission made by Shri Sunil Kumar that there had been two FIRs in respect of the same incident as a large number of remand applications had been filed and it is evident from the application that at initial stage it was shown as L.A.C. 23/93, but a correction had been made though without initials by the person who made the correction, but in his subsequent application it had been shown as L.A.C. 22/93. More so, the FIR number connecting this case is the same. Only one FIR had been exhibited in the court as Exhibit 1284-A dated 18.4.1993 and it contains case no. L.A.C. 23/93. Therefore, we do not think that the submission requires further consideration.
Confessional statement of Murad Ibrahim Khan (A-130):
9. He had disclosed that he was fully acquainted with Yakub Yeda and the appellant (A-20). Thus, he was having acquaintance with hardened criminals.
Deposition of Mohamed Ayub Mohamed Umar (PW-72)
10. He is a panch witness and a hawker, selling fruits on the footpath near Crawford Market. He deposed that on 17.4.1993 at about 12.45 hours, he was called to the police station by a Hawaldar and there Constable, Shivaji Sawant, P.I. asked him whether he would like to act as a panch witness in a case related to the Bombay Blast. He consented for the same and one more panch witness was also present in the said room. In his presence, accused (A-20) disclosed his name as Salim Khan and he said in Hindi that he was in possession of one AK-56 rifle and two magazines in his workshop the recovery of which he would get effected. The witness further corroborated the entire version of the recovery
10.1 The witness further deposed that the police party alongwith the accused (A-20) and the panch witnesses proceeded in the police vehicle and towards the place disclosed by the appellant (A- 20) and entered the building pointed out by the appellant (A-20). The said workshop had a loft and one staircase. One police officer went on the loft. Thereafter, all other persons followed him. On the directions of the appellant, cartons, scrap material and gunny bag were found. The said gunny bag was turned out for emptying the same. One AK-56 rifle and two magazines were taken out of the said gunny bag. The AK-56 rifle and magazines were separately wrapped in brown paper and three packets were prepared and sealed separately. The packets were signed by him, co-panchas and Shri Sawant.
10.2 In cross-examination, the witness (PW.72) said that label put up on the recovered goods had his signature and the goods had been seized.
10.3 He further denied the suggestion made by the defence that he was the regular panch witness for the police. However, he had admitted that occasionally, he had worked as such and he had been a panch witness in other cases.
Deposition of Shivaji Shankar Sawant, P.I. (PW-524)
11. He deposed that on 17.4.1993, he was interrogating the appellant (A-20) who was arrested in C.R. No. 71/93 alongwith some other police officials. During the said interrogation, the appellant (A-20) consented to make the voluntary statement and in the presence of the panch witnesses and other police officials, the appellant (A-20) made a disclosure statement in Hindi. He recorded the same in the panchanama. The panchnama was read over to the appellant (A-20) and the panch witnesses. It was signed by the panch witnesses and countersigned by him (A-20). He disclosed that the appellant (A-20) had consented to show the place and take out AK-56 rifle and two empty magazines kept by the appellant (A-20).
11.1 He further deposed that panchnama of the recovery from the workshop of the appellant (A-20) was correct. The same bears his signature and the signatures of panch witnesses and it was completed on 18.4.1993.
11.2 He was a Police Inspector and working as a Dy. S.P. for Protection of Civil Rights, Unit Bombay. He clarified the correction regarding L.A.C.Nos. 22/93 and 23/93 and explained that there was a correction on the L.A.C. numbers. However, he had admitted that he had made that correction while registering the said case though it did not bear his initials and he was not in a position to give any reason for not putting his initials and correction was necessary as there had been some typographical error. He further stated that he arrested the accused formally in L.A.C. No. 23/93 at 1.25 a.m. on 18.4.1993.
11.3 In paras 65 and 66, he deposed that he did not register any L.A.C. No. 22/93 and also did not know the name of officer who had registered L.A.C. 22/93.
Deposition of Sahadev (PW-181)
12. He deposed that on 14.5.1993, he received requisition from Worli Police station for recording the confessional statement of the appellant A-20 and he had proved the said confessional statement.
Deposition of Nagesh Shivdas Lohar (PW-356)
13. He has deposed that on 17.4.1993, he alongwith Shivaji Sawant and one Head Constable interrogating the appellant (A-20) in case No.C.R. 71/93. He corroborated that Shri Sawant had asked the appellant (A-20) whether he wanted to make the voluntary statement. Thereafter, appellant made the statement in Hindi. He recorded the statement of the appellant in Hindi in the panchnama which was marked as Exh. 378 and is the same panchanama recorded by him about the statement of appellant (A- 20) between 17th and 18th April, 1993.
14. The recovery of the AK-56 rifle and two magazines had been made on 17th/18th April, 1993 and in respect of the same panchanama Exh. 383 makes it clear that Farid Alam Rais Alam Qureshi and Mohamad Ayub Mohamad Umar had been the panch witnesses and in their presence the appellant (A-20) voluntarily made a disclosure statement that the AK-56 rifle was kept in his workshop. This panchnama was concluded at 23.10 hours on 17.4.1993. The panchnama has been signed by both the witnesses as well as by the Inspector of Police, Shri S.S. Sawant. However, it does not bear the signature of the appellant (A-20). It further shows that in continuation of the same, the search was conducted and it reveals that after making the disclosure statement, the police had taken the accused alongwith the panch witnesses to a closed workshop named as Bona Parte industry belonging to him. The said workshop was having its shutter down and locked and in absence of the key the police forced open the lock and opened the same. The panchas alongwith the accused (A-20) and the police party entered the workshop and found that there was no electricity however, they found that the loft measured approximately 16′ x 40′ had a loft with a staircase. The appellant (A-20) led all of them to the loft by staircase. On reaching there the appellant (A-20) took out a box and scrap was removed. One AK-56 rifle and empty magazines were found wrapped in gunny sack. The police examined the said material and prepared the recovery memo. The recovery memo contained one AK-56 assault rifle of folding type butt, in rusted condition but had been greased and two magazines of AK-56 assault rifle with no identification marks and numbers and it was in rusted condition and greased.
15. The Designated Court after appreciating the evidence on record came to the conclusion as under:
A-20 having not explained the reason of his knowledge of such a contraband articles being kept in a said factory of which he was partner the same will lead only to the inference of himself having kept the same. The same is obvious as A-20 could have knowledge about the same in three contingencies i.e. a) he had kept the contrabands himself b) having seen somebody keeping the same there c) somebody had told him that the same being kept at the said place or having seen himself of such articles being kept at that place. In view of failure of A-20 to give any explanation regarding his knowledge being due to the reasons as stated in the aforesaid clauses b) and c) the same will lead to the conclusion as stated aforesaid. With regard to matter stated in clause c) aforesaid it can be additionally added that since the accused was also partner of the said shop allowing the remaining of such articles at the said place would also attract the liability for the same….]
The same is the case regarding the submission advanced on the basis of A-20 at the time of recovery not having the key of the relevant gala.
In light of the aforesaid discussion it is difficult to accept the submission canvassed that the evidence only establish the knowledge of A-20 of the contraband material lying at the said place and the same does not amount to himself being in conscious possession of the same. Needless to add that the inferences flowing from the statement made by A-20 consciously are not of a nature of denoting himself not being in conscious possession of contraband articles within the notified area….
16. We have appreciated the evidence on record and the case depends upon the veracity of evidence regarding recovery.
16.1. There is sufficient material to show that the recovery had been made at the behest of the appellant (A-20) from the factory owned by a partnership to which he was the partner alongwith one Surjit Singh. In such a fact-situation, he ought to have explained the reason/source of his knowledge of such contraband articles being kept in his factory.
17. In the instant case, as he has not mentioned that he had seen someone keeping the articles there, or somebody had told him about that, or he had seen the things lying there, the only reasonable inference is drawn that he himself had kept the same at that place. Being a partner of the firm if he was having the knowledge that some contraband were lying in his premises, he ought to have informed the police if he had no guilty mind.
18. So far as the explanation that at the time of recovery he did not have the key, would not be enough to tilt the balance in his favour. The fact that he did not have the key becomes totally redundant, as no conclusion can be drawn that the appellant (A-20) was not in possession of the said premises, and in such a fact-situation, it cannot be held that the appellant (A-20) was not in conscious possession of the contraband material.
19. We do not find any force in the submissions made by Shri Sunil Kumar, learned senior counsel appearing for the appellant (A-20), that the panch witness was the resident of Sitaram building, which was opposite to the office of the Commissioner of Police, or in a very close proximity of the same, and was working on the footpath nearby the said building, and he had acted earlier as a panch witness in test identification parade.
20. The police when searching for a panch witness, need not go to far off place of the police station as the panchnama is required to be recorded in a close proximity of time, when the accused apprehending his disclosure statement. Therefore, on such material suspicion about the credential of the police or panch witnesses cannot be doubted, unless there is some material to prove the contrary. Had it been picked up from a far off place, criticism could have been otherwise as to why the panch witness could not be called from neighbourhood.
21. The panch witness Mohamed Ayub Mohamed Umar (PW- 72) could not be held to be a tutored witness or acting at the behest of the prosecution only on the ground that he had also been the witness in another case. It does not give a reason to draw inference that he was a stock panch witness unless it is shown that he had acted in such capacity in a very large number of cases.
22. More so, it cannot be held that Mohamed Ayub Mohamed Umar (PW-72) was not an independent witness, or acting under the pressure of the police as he was carrying the business illegally without any license. More so, the appellant (A-20) had made the disclosure statement in his presence, he could explain the same. Therefore, it could not be held that he was deposing falsely.
23. We do not see any reason as to why his evidence should not be relied upon. Minor omissions/contradictions regarding labeling and sealing are not really the contradictions which go to the root of the matter. Non-examination of the watchman of Ghanshyam Industrial Estate, or omission of factor regarding electricity being not mentioned in the panchnama, or non-collection of broken lock, are the omissions of trivial nature, and do not warrant any undue importance for doubting the evidence of recovery.
24. Law does not require the witness to corroborate the evidence of an independent witness. Thus, the evidence of Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by the contemporaneous panchnama is trustworthy.
25. As the appellant (A-20) made a statement leading to the discovery of AK-56 assault rifle and two magazines having kept in his workshop and the same had been found concealed on the loft, he cannot escape from the liability of possessing and concealing of the same, thus liable to be punished under Section 5 TADA. We see no reason to interfere with the conclusion drawn by the learned Designated Court. The appeal is accordingly dismissed.
**************
1. This appeal has been preferred against the impugned judgment and order dated 30.5.2007, passed by Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA) for the Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/1993, convicting the appellant under Section 5 TADA, and awarding the punishment of 5 years RI, alongwith a fine of Rs.25,000/-, and in default of payment of fine, to further undergo RI for 6 months.
2. Facts and circumstances giving rise to this appeal are that:
A. As the facts of this case and all legal issues involved herein have been elaborately dealt with in the connected appeal i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI], it may be pertinent to mention only the relevant facts and charges against the appellant (A-20).
B. Bombay Blast took place on 12.3.1993 in which 257 persons lost their lives and 713 were injured. In addition thereto there had been loss of property worth several crores. The Bombay police investigated the matter at initial stage but subsequently it was entrusted to the Central Bureau of Investigation (hereinafter referred to as CBI) and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including appellant (A-20) stood convicted.
C. The appellant had been charged for general conspiracy which is framed against all the accused persons for the offences punishable under Section 3(3) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B) (a) of the Arms Act, 1959 (hereinafter referred to as the Arms Act), Sections 9-B(1)(a)(b)(c) of the Explosives Act, 1884. Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984.
D. In addition to the general charge of conspiracy, he had also been charged under Section 3(3) TADA, under Section 5 TADA for keeping one AK-56 rifle plus two empty magazines and committed an offence in respect of the same under Section 6 TADA, and under Section 3(4) TADA read with Section 212 IPC, for harbouring criminals.
3. After conclusion of the trial, the appellant (A-20) had been convicted under Section 5 TADA, and awarded the sentence as mentioned hereinabove.
Hence, this appeal.
4. Shri Sunil Kumar, learned senior counsel appearing for the appellant (A-20), has submitted that conviction of the appellant (A- 20) under Section 5 TADA, was not warranted in view of the fact that the recovery had not been proved in accordance with law. The disclosure statement alleged to have been made under the provision of Section 27 of the Indian Evidence Act, 1872 (hereinafter called Evidence Act) has not been strictly followed. The said alleged disclosure statement did not bear the signature of the appellant (A- 20). There were two panch witnesses, only one has been examined. The panch witness examined in the case had been a stock witness in the police as he had appeared as a panch witness in other cases. He was the resident of an area in close vicinity of the office of the Crime Branch of the police department. The watchman of the Ghanshyam building from which the recovery had been made, has not been examined. None of the neighbours of that building have been examined as witnesses. There are material contradictions/omissions in the deposition of the witnesses. Even the case number has wrongly been mentioned. The L.A.C. No.22/93 had been manipulated and it was shown as L.A.C.No.23/93. Even the recovery of the AK-56 rifle does not give rise to the presumption of possession. It was further submitted that the confession of the appellant (A-20) had been obtained by coercion by severely beating him. Therefore, the appeal deserves to be allowed.
5. On the contrary, Shri Mukul Gupta, learned senior counsel appearing for the respondent, has vehemently opposed the appeal contending that the confession of the appellant (A-20) has not been relied upon by the Designated Court, therefore, it remains inconsequential. Only one of the panch witnesses had been examined in order to avoid multiplicity. Mere non-examination of the other panch witnesses would not make the case of the prosecution doubtful. The recovery had been made strictly in accordance with law and in case the recovery had been made at the instance of the disclosure statement and from the place on which the appellant (A-20) had control over, the presumption has rightly been drawn, particularly in view of the fact that the appellant (A- 20) did not lead any evidence in defence. Thus, the appeal is liable to be dismissed.
6. We have considered the rival submissions made by learned counsel for the parties and perused the record.
7. Evidence against the appellant (A-20):
(a) Confessional statement of the appellant (A-20)
(b) Confessional statement of Murad Ibrahim Khan (A-130)
(c) Deposition of Mohamed Ayub Mohamed Umar (PW-72)
(d) Deposition of Sahadev (PW-181)
(e) Deposition of Nagesh Shivdas Lohar (PW-356)
(f) Deposition of Shivaji Shankar Sawant (PW-524)
(g) Recovery of AK-56 rifle and two magazines
Confessional statement of the appellant (A-20):
8. The confessional statement made by the appellant has not been relied upon by learned Special Judge. Therefore, we are not making any reference to it and it has to be ignored. More so, we do not find any force in the submission made by Shri Sunil Kumar that there had been two FIRs in respect of the same incident as a large number of remand applications had been filed and it is evident from the application that at initial stage it was shown as L.A.C. 23/93, but a correction had been made though without initials by the person who made the correction, but in his subsequent application it had been shown as L.A.C. 22/93. More so, the FIR number connecting this case is the same. Only one FIR had been exhibited in the court as Exhibit 1284-A dated 18.4.1993 and it contains case no. L.A.C. 23/93. Therefore, we do not think that the submission requires further consideration.
Confessional statement of Murad Ibrahim Khan (A-130):
9. He had disclosed that he was fully acquainted with Yakub Yeda and the appellant (A-20). Thus, he was having acquaintance with hardened criminals.
Deposition of Mohamed Ayub Mohamed Umar (PW-72)
10. He is a panch witness and a hawker, selling fruits on the footpath near Crawford Market. He deposed that on 17.4.1993 at about 12.45 hours, he was called to the police station by a Hawaldar and there Constable, Shivaji Sawant, P.I. asked him whether he would like to act as a panch witness in a case related to the Bombay Blast. He consented for the same and one more panch witness was also present in the said room. In his presence, accused (A-20) disclosed his name as Salim Khan and he said in Hindi that he was in possession of one AK-56 rifle and two magazines in his workshop the recovery of which he would get effected. The witness further corroborated the entire version of the recovery
10.1 The witness further deposed that the police party alongwith the accused (A-20) and the panch witnesses proceeded in the police vehicle and towards the place disclosed by the appellant (A- 20) and entered the building pointed out by the appellant (A-20). The said workshop had a loft and one staircase. One police officer went on the loft. Thereafter, all other persons followed him. On the directions of the appellant, cartons, scrap material and gunny bag were found. The said gunny bag was turned out for emptying the same. One AK-56 rifle and two magazines were taken out of the said gunny bag. The AK-56 rifle and magazines were separately wrapped in brown paper and three packets were prepared and sealed separately. The packets were signed by him, co-panchas and Shri Sawant.
10.2 In cross-examination, the witness (PW.72) said that label put up on the recovered goods had his signature and the goods had been seized.
10.3 He further denied the suggestion made by the defence that he was the regular panch witness for the police. However, he had admitted that occasionally, he had worked as such and he had been a panch witness in other cases.
Deposition of Shivaji Shankar Sawant, P.I. (PW-524)
11. He deposed that on 17.4.1993, he was interrogating the appellant (A-20) who was arrested in C.R. No. 71/93 alongwith some other police officials. During the said interrogation, the appellant (A-20) consented to make the voluntary statement and in the presence of the panch witnesses and other police officials, the appellant (A-20) made a disclosure statement in Hindi. He recorded the same in the panchanama. The panchnama was read over to the appellant (A-20) and the panch witnesses. It was signed by the panch witnesses and countersigned by him (A-20). He disclosed that the appellant (A-20) had consented to show the place and take out AK-56 rifle and two empty magazines kept by the appellant (A-20).
11.1 He further deposed that panchnama of the recovery from the workshop of the appellant (A-20) was correct. The same bears his signature and the signatures of panch witnesses and it was completed on 18.4.1993.
11.2 He was a Police Inspector and working as a Dy. S.P. for Protection of Civil Rights, Unit Bombay. He clarified the correction regarding L.A.C.Nos. 22/93 and 23/93 and explained that there was a correction on the L.A.C. numbers. However, he had admitted that he had made that correction while registering the said case though it did not bear his initials and he was not in a position to give any reason for not putting his initials and correction was necessary as there had been some typographical error. He further stated that he arrested the accused formally in L.A.C. No. 23/93 at 1.25 a.m. on 18.4.1993.
11.3 In paras 65 and 66, he deposed that he did not register any L.A.C. No. 22/93 and also did not know the name of officer who had registered L.A.C. 22/93.
Deposition of Sahadev (PW-181)
12. He deposed that on 14.5.1993, he received requisition from Worli Police station for recording the confessional statement of the appellant A-20 and he had proved the said confessional statement.
Deposition of Nagesh Shivdas Lohar (PW-356)
13. He has deposed that on 17.4.1993, he alongwith Shivaji Sawant and one Head Constable interrogating the appellant (A-20) in case No.C.R. 71/93. He corroborated that Shri Sawant had asked the appellant (A-20) whether he wanted to make the voluntary statement. Thereafter, appellant made the statement in Hindi. He recorded the statement of the appellant in Hindi in the panchnama which was marked as Exh. 378 and is the same panchanama recorded by him about the statement of appellant (A- 20) between 17th and 18th April, 1993.
14. The recovery of the AK-56 rifle and two magazines had been made on 17th/18th April, 1993 and in respect of the same panchanama Exh. 383 makes it clear that Farid Alam Rais Alam Qureshi and Mohamad Ayub Mohamad Umar had been the panch witnesses and in their presence the appellant (A-20) voluntarily made a disclosure statement that the AK-56 rifle was kept in his workshop. This panchnama was concluded at 23.10 hours on 17.4.1993. The panchnama has been signed by both the witnesses as well as by the Inspector of Police, Shri S.S. Sawant. However, it does not bear the signature of the appellant (A-20). It further shows that in continuation of the same, the search was conducted and it reveals that after making the disclosure statement, the police had taken the accused alongwith the panch witnesses to a closed workshop named as Bona Parte industry belonging to him. The said workshop was having its shutter down and locked and in absence of the key the police forced open the lock and opened the same. The panchas alongwith the accused (A-20) and the police party entered the workshop and found that there was no electricity however, they found that the loft measured approximately 16′ x 40′ had a loft with a staircase. The appellant (A-20) led all of them to the loft by staircase. On reaching there the appellant (A-20) took out a box and scrap was removed. One AK-56 rifle and empty magazines were found wrapped in gunny sack. The police examined the said material and prepared the recovery memo. The recovery memo contained one AK-56 assault rifle of folding type butt, in rusted condition but had been greased and two magazines of AK-56 assault rifle with no identification marks and numbers and it was in rusted condition and greased.
15. The Designated Court after appreciating the evidence on record came to the conclusion as under:
A-20 having not explained the reason of his knowledge of such a contraband articles being kept in a said factory of which he was partner the same will lead only to the inference of himself having kept the same. The same is obvious as A-20 could have knowledge about the same in three contingencies i.e. a) he had kept the contrabands himself b) having seen somebody keeping the same there c) somebody had told him that the same being kept at the said place or having seen himself of such articles being kept at that place. In view of failure of A-20 to give any explanation regarding his knowledge being due to the reasons as stated in the aforesaid clauses b) and c) the same will lead to the conclusion as stated aforesaid. With regard to matter stated in clause c) aforesaid it can be additionally added that since the accused was also partner of the said shop allowing the remaining of such articles at the said place would also attract the liability for the same….]
The same is the case regarding the submission advanced on the basis of A-20 at the time of recovery not having the key of the relevant gala.
In light of the aforesaid discussion it is difficult to accept the submission canvassed that the evidence only establish the knowledge of A-20 of the contraband material lying at the said place and the same does not amount to himself being in conscious possession of the same. Needless to add that the inferences flowing from the statement made by A-20 consciously are not of a nature of denoting himself not being in conscious possession of contraband articles within the notified area….
16. We have appreciated the evidence on record and the case depends upon the veracity of evidence regarding recovery.
16.1. There is sufficient material to show that the recovery had been made at the behest of the appellant (A-20) from the factory owned by a partnership to which he was the partner alongwith one Surjit Singh. In such a fact-situation, he ought to have explained the reason/source of his knowledge of such contraband articles being kept in his factory.
17. In the instant case, as he has not mentioned that he had seen someone keeping the articles there, or somebody had told him about that, or he had seen the things lying there, the only reasonable inference is drawn that he himself had kept the same at that place. Being a partner of the firm if he was having the knowledge that some contraband were lying in his premises, he ought to have informed the police if he had no guilty mind.
18. So far as the explanation that at the time of recovery he did not have the key, would not be enough to tilt the balance in his favour. The fact that he did not have the key becomes totally redundant, as no conclusion can be drawn that the appellant (A-20) was not in possession of the said premises, and in such a fact-situation, it cannot be held that the appellant (A-20) was not in conscious possession of the contraband material.
19. We do not find any force in the submissions made by Shri Sunil Kumar, learned senior counsel appearing for the appellant (A-20), that the panch witness was the resident of Sitaram building, which was opposite to the office of the Commissioner of Police, or in a very close proximity of the same, and was working on the footpath nearby the said building, and he had acted earlier as a panch witness in test identification parade.
20. The police when searching for a panch witness, need not go to far off place of the police station as the panchnama is required to be recorded in a close proximity of time, when the accused apprehending his disclosure statement. Therefore, on such material suspicion about the credential of the police or panch witnesses cannot be doubted, unless there is some material to prove the contrary. Had it been picked up from a far off place, criticism could have been otherwise as to why the panch witness could not be called from neighbourhood.
21. The panch witness Mohamed Ayub Mohamed Umar (PW- 72) could not be held to be a tutored witness or acting at the behest of the prosecution only on the ground that he had also been the witness in another case. It does not give a reason to draw inference that he was a stock panch witness unless it is shown that he had acted in such capacity in a very large number of cases.
22. More so, it cannot be held that Mohamed Ayub Mohamed Umar (PW-72) was not an independent witness, or acting under the pressure of the police as he was carrying the business illegally without any license. More so, the appellant (A-20) had made the disclosure statement in his presence, he could explain the same. Therefore, it could not be held that he was deposing falsely.
23. We do not see any reason as to why his evidence should not be relied upon. Minor omissions/contradictions regarding labeling and sealing are not really the contradictions which go to the root of the matter. Non-examination of the watchman of Ghanshyam Industrial Estate, or omission of factor regarding electricity being not mentioned in the panchnama, or non-collection of broken lock, are the omissions of trivial nature, and do not warrant any undue importance for doubting the evidence of recovery.
24. Law does not require the witness to corroborate the evidence of an independent witness. Thus, the evidence of Mohamed Ayub Mohamed Umar (PW-72) duly corroborated by the contemporaneous panchnama is trustworthy.
25. As the appellant (A-20) made a statement leading to the discovery of AK-56 assault rifle and two magazines having kept in his workshop and the same had been found concealed on the loft, he cannot escape from the liability of possessing and concealing of the same, thus liable to be punished under Section 5 TADA. We see no reason to interfere with the conclusion drawn by the learned Designated Court. The appeal is accordingly dismissed.
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