Altaf Ali Sayed Vs. State of Maharashtra through CBI
EmailAppeal: Criminal Appeal Nos.1129-1130 of 2007
Petitioner: Altaf Ali Sayed
Respondent: State of Maharashtra through CBI
Apeal: Criminal Appeal Nos.1129-1130 of 2007
Judges: P. Sathasivam, B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Panch witnesses Disposition of PW 37, brother of police official – Plea that his evidence cannot be relied upon being the brother of Police constable. Held such relationship will not disqualify him to be a panch witness nor his evidence becomes unreliable. Evidence of police official can be relied upon, even if no independent witness is examined. Court in such situation must be more cautious in examining such evidence. Paras Ram v. State of Haryana, [JT 1992 (Suppl.) SC 472]; Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, [JT 1995 (7) SC 350], Sama Alana Abdulla v. State of Gujarat, Anil v. State of Maharashtra, [JT 1996 (3) SC 120], Tahir v. State (Delhi), [JT 1996 (3) SC 386] and Balbir Singh v. State, (JT 1996 (9) SC 158) referred.
Panch witnesses Disposition of PW 37, brother of police official – Plea that his evidence cannot be relied upon being the brother of Police constable. Held such relationship will not disqualify him to be a panch witness nor his evidence becomes unreliable. Evidence of police official can be relied upon, even if no independent witness is examined. Court in such situation must be more cautious in examining such evidence. Paras Ram v. State of Haryana, [JT 1992 (Suppl.) SC 472]; Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, [JT 1995 (7) SC 350], Sama Alana Abdulla v. State of Gujarat, Anil v. State of Maharashtra, [JT 1996 (3) SC 120], Tahir v. State (Delhi), [JT 1996 (3) SC 386] and Balbir Singh v. State, (JT 1996 (9) SC 158) referred.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3) and 5 – Unauthorised possession of arms in notified area -Appellant took seven bags – No key found – No case that key was given along with suitcase – Plea that in such fact situation ,appellant may not be aware of the contents of the suitcases – Lock-smith called to make key – Neither lock-smith examined and nor key exhibited/preserved – Plea that even recovery of suitcases was doubtful, as it was made on 26.03-1993 at 10 p.m. whereas recovery party started from near by place at 5 pm – Confessional statement of appellant revealed that he met A-1 in the office of A68 and A1 asked appellant to book ticket for Dubai for him – A68 gave 4 bags of A1 to Appellant – After 10-12 days, A46 gave three more bags to appellant – Appellant came to know about the contents of the bag from A68 – Later he kept five bags in the garage of A1 – After bomb blast, remaining two bags were kept with PW 282 from where the recovery was made at his instance – He received as per A 46, Rs.50,000 and Rs.62000 from A1 – A46 saw appellant taking three suitcases – PWs 341 and 420 saw appellant booking tickets through his firm – Court holding this evidence as not a link to the knowledge behind the purpose for which A1 was going abroad and held him not guilty – The recovery of suit cases which appellant gave to PW282 was effected by PWs. 506 and 37. Held, since he knew the contents of the suitcase as the motive was to take revenge of the sufferings of Muslims and he was in possession of the unauthorised arms in a notified area, conviction under Section 3(3) and 5 of TADA given by designated court is confirmed.
Held:
It is true that the panch witness Suresh Satam (PW.37) himself has admitted that his brother was employee of the police department of 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 this Court 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. (Para 42)
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. The appellant (A-67) had taken 5 bags on 10.3.1993 and kept the same in the garage of Yakub Memon (A-1) at the Al-Husseini Building. The Bombay blast took place on 12.3.1993, and it was after that 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 appellant and at his instance. The prosecutions 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, 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. (Para 44.3)
The other evidences of Asit Devji (PW.341) and Waman 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 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., hand-grenades, detonators and wires etc. was effected by Anil Mahabole (PW.506), on the disclosure of the appellant in the presence of Suresh Satam (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., hand-grenades, detonators and wires etc. stood fully proved by the conjoint reading of the depositions of Anil Mahabole (PW.506), Mohd. Hanit (PW.282) and Suresh Satam (PW.37). (Para 44.4)
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. (Para 45)
JUDGEMENT:
Judgment (Contd.)
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 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 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 3-1/2 years.
Both the sentences were directed to run concurrently.
25. Facts and circumstances giving rise to these appeals are that:
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 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 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 Court under TADA convicted and sentenced the appellant as referred to hereinabove.
Hence, these appeals.
26. Shri Mukul Rohtagi, learned senior counsel appearing 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 suitcases which had been recovered on his discovery 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 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 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 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 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 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 (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-46) through appellant (A-67). Yakub Memon (A-1) had instructed on telephone to the 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.
28. We have considered the rival submissions made by the learned counsel for the parties and perused the records.
29. Evidence against the appellant:
(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) Deposition of Prem Kishan Jain (PW-189)
(e) Deposition of Shri K.L. Bishnoi (PW-193)
(f) Deposition of S.J. Satam, Panch witness (PW-37)
(g) Deposition of Waman Kulkarni (PW-662)
(h) Deposition of Woman Dotlkar (PW-420)
(i) Deposition of Asit Devji (PW-341)
(j) Deposition of Anil Prabhakar (PW-506)
(k) Memo Panch Ex. 108
(l) Discovery Panch. Ex. 109
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 recruiting agent under the name of Altaf Enterprises. He knew 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 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. When 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 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. Hanif.
31. Confessional statement of Mohd. Rafiq Madi Biyariwala (A-46):
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 (A-1). On 14-15 February, he saw the appellant (A-67) taking away 3 suit-cases in his Maruti Van from nearby garage below the building of Tiger Memon (AA).
31.1. 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 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-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) 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, he made a disclosure under Section 27 of Evidence Act (Exh. 108 dt. 26.3.1993) and led Anil 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. 109. The suitcases contained arms and ammunition in large quantities.
32. Deposition of Mohd. Hanit Usman Shaikh (PW-282):
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 were containing Fax machines. He has further revealed that after making the 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 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. 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 were tied and sealed. He has further complained that during 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 police in March 1993 for about 20-25 days and was not allowed to return to his house. 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 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 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):
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 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) 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 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 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.
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 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 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.
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.
37. Deposition of Woman Dotlkar (PW-420):
He has deposed that he was working as Assistant Counter Supervisor of M/s Hans Air Services, and has further deposed regarding booking of 4 tickets by the appellant (A-67) for 11.2.1993 for Dubai and proved Ext.D-3, xerox copy of 3 tickets.
37.1 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 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 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 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 area and the said material being capable of 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 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 contravened provisions of Arms Act and Explosive Act, still his 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 TADA by this Court in Durga Prasad Gupta (supra).
41. In Kalpnath Rai v. State (Thr. CBI), [JT 1997 (9) SC 18 : (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 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 same case but for different offences.
42. Shri Mukul Rohtagi, learned senior counsel appearing for the appellant has submitted that two panch witnesses were there, whereas one has been examined, i.e. Suresh Satam (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 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, [JT 1992 (Suppl.) SC 472]; Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, [JT 1995 (7) SC 350 : (1995) 4 SCC 255]; Sama Alana Abdulla v. State of Gujarat, (1996) 1 SCC 427; Anil v. State of Maharashtra, [JT 1996 (3) SC 120]; Tahir v. State (Delhi), [JT 1996 (3) SC 386 : (1996) 3 SCC 338]; and Balbir Singh v. State, [ JT 1996 (9) SC 158 : (1996) 11 SCC 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 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 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 Satam (PW.37) and Anil Prabhakar (PW.506) are taken into consideration, the recovery was made on 26.3.1993 at 10.00 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.
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) 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 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 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 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 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.
44.1 The recovery of two suitcases containing handgrenades, detonators and wires was effected by Anil Mahabole (PW-506) 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.
44.2 The appellant (A-67) had been told by Amzad (A-68) that 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).
44.3 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. The appellant (A-67) had taken 5 bags on 10.3.1993 and kept the same in the garage of Yakub Memon (A-1) at the Al-Husseini Building. The Bombay blast took place on 12.3.1993, and it was after that 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 appellant and at his instance. The prosecutions 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, 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.
44.4 The other evidences of Asit Devji (PW.341) and Waman 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 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 (PW.506), on the disclosure of the appellant in the presence of Suresh Satam (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 reading of the depositions of Anil Mahabole (PW.506), Mohd. Hanit (PW.282) and Suresh Satam (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.
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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 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 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 3-1/2 years.
Both the sentences were directed to run concurrently.
25. Facts and circumstances giving rise to these appeals are that:
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 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 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 Court under TADA convicted and sentenced the appellant as referred to hereinabove.
Hence, these appeals.
26. Shri Mukul Rohtagi, learned senior counsel appearing 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 suitcases which had been recovered on his discovery 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 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 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 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 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 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 (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-46) through appellant (A-67). Yakub Memon (A-1) had instructed on telephone to the 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.
28. We have considered the rival submissions made by the learned counsel for the parties and perused the records.
29. Evidence against the appellant:
(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) Deposition of Prem Kishan Jain (PW-189)
(e) Deposition of Shri K.L. Bishnoi (PW-193)
(f) Deposition of S.J. Satam, Panch witness (PW-37)
(g) Deposition of Waman Kulkarni (PW-662)
(h) Deposition of Woman Dotlkar (PW-420)
(i) Deposition of Asit Devji (PW-341)
(j) Deposition of Anil Prabhakar (PW-506)
(k) Memo Panch Ex. 108
(l) Discovery Panch. Ex. 109
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 recruiting agent under the name of Altaf Enterprises. He knew 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 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. When 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 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. Hanif.
31. Confessional statement of Mohd. Rafiq Madi Biyariwala (A-46):
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 (A-1). On 14-15 February, he saw the appellant (A-67) taking away 3 suit-cases in his Maruti Van from nearby garage below the building of Tiger Memon (AA).
31.1. 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 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-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) 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, he made a disclosure under Section 27 of Evidence Act (Exh. 108 dt. 26.3.1993) and led Anil 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. 109. The suitcases contained arms and ammunition in large quantities.
32. Deposition of Mohd. Hanit Usman Shaikh (PW-282):
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 were containing Fax machines. He has further revealed that after making the 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 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. 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 were tied and sealed. He has further complained that during 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 police in March 1993 for about 20-25 days and was not allowed to return to his house. 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 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 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):
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 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) 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 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 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.
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 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 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.
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.
37. Deposition of Woman Dotlkar (PW-420):
He has deposed that he was working as Assistant Counter Supervisor of M/s Hans Air Services, and has further deposed regarding booking of 4 tickets by the appellant (A-67) for 11.2.1993 for Dubai and proved Ext.D-3, xerox copy of 3 tickets.
37.1 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 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 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 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 area and the said material being capable of 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 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 contravened provisions of Arms Act and Explosive Act, still his 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 TADA by this Court in Durga Prasad Gupta (supra).
41. In Kalpnath Rai v. State (Thr. CBI), [JT 1997 (9) SC 18 : (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 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 same case but for different offences.
42. Shri Mukul Rohtagi, learned senior counsel appearing for the appellant has submitted that two panch witnesses were there, whereas one has been examined, i.e. Suresh Satam (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 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, [JT 1992 (Suppl.) SC 472]; Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, [JT 1995 (7) SC 350 : (1995) 4 SCC 255]; Sama Alana Abdulla v. State of Gujarat, (1996) 1 SCC 427; Anil v. State of Maharashtra, [JT 1996 (3) SC 120]; Tahir v. State (Delhi), [JT 1996 (3) SC 386 : (1996) 3 SCC 338]; and Balbir Singh v. State, [ JT 1996 (9) SC 158 : (1996) 11 SCC 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 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 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 Satam (PW.37) and Anil Prabhakar (PW.506) are taken into consideration, the recovery was made on 26.3.1993 at 10.00 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.
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) 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 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 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 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 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.
44.1 The recovery of two suitcases containing handgrenades, detonators and wires was effected by Anil Mahabole (PW-506) 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.
44.2 The appellant (A-67) had been told by Amzad (A-68) that 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).
44.3 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. The appellant (A-67) had taken 5 bags on 10.3.1993 and kept the same in the garage of Yakub Memon (A-1) at the Al-Husseini Building. The Bombay blast took place on 12.3.1993, and it was after that 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 appellant and at his instance. The prosecutions 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, 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.
44.4 The other evidences of Asit Devji (PW.341) and Waman 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 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 (PW.506), on the disclosure of the appellant in the presence of Suresh Satam (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 reading of the depositions of Anil Mahabole (PW.506), Mohd. Hanit (PW.282) and Suresh Satam (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.
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