Aziz Ahmed Md. Ahmed Shaikh Vs. State of Maharashtra
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 5 – Arms Act, 1959, Sections 3 and 7 read with Sections 25 (IA), (lB)(a) – Conviction under – Bombay Blast case – Secret information received by police – On that basis Appellant apprehended – Showed willingness to make statement – Panch witnesses called – Appellant led the police party / panch witnesses to grave-yard – Took out a gunny bag from thickly grown trees and shrubs, containing one single barrel carbine, 28 cartridges and 3 magazines – FSL report showing carbine in working condition – Designated Court found him guilty under TADA and Arms Act. Held conviction upheld.
26. This appeal has been preferred against the judgments and orders dated 11.10.2006 and 31.5.2007, passed by Special Judge of the Designated Court under the TADA for Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/93, by which the appellant had been found guilty under Section 5 TADA and on that count, he was sentenced to suffer RI for 5 years, and ordered to pay a fine of Rs.25,000/-, and in default of payment of fine, to suffer further RI for 6 months. He (A-21) was further convicted under Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of the Arms Act, but no separate sentence was awarded for the same.
27. Facts and circumstances giving rise to this appeal are that :
A. In addition to the first charge of general conspiracy, he was charged for attending conspiratorial meetings at Dubai where criminal conspiracy was discussed for distributing arms and ammunition to co-conspirators and for providing funds to them. Thus, he (A-21) was charged under Sections 3(3) and (4) TADA. Further, he (A-21) was charged with unauthorisedly being in possession of one U.S. Carbine 0.300 with three magazines and 28 cartridges in the notified area under TADA, between January 1993 and 5th April, 1993, and thus, charged under Sections 5 and 6 TADA, and further under the provisions of Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act.
B. After the trial, the appellant (A-21) stood acquitted of all the charges except charges under Section 5 TADA and under the Arms Act.
Hence, this appeal.
28. Shri Mushtaq Ahmad, learned counsel appearing for the appellant has submitted that the appellant had wrongly been involved in the offence and convicted, though there is no sufficient evidence on record, to involve the appellant in the crime. The evidence particularly the confessional statement of the appellant and the depositions of other witnesses particularly, Bhaskar Babu Rao Jadhav (PW-57), Dayandeo Sonaji Geete (PW-320), Vijay Meru (PW-561), and Shivajirao Kondiram Babar (PW-683) etc. are not worth reliance. The confessional statement of the appellant cannot be relied upon, as it was not made voluntarily and truthfully. The appeal deserves to be allowed.
29. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that the appellant was a close associate of Tiger Memon (AA). He was fully involved in the entire episode including the conspiracy. He has wrongly been acquitted for the said charge. Thus, no interference is called for. The appeal is liable to be dismissed.
30. We have heard learned counsel for the parties and perused the record.
31. Evidence against the appellant (A-21):
(a) Confessional statement of the appellant (A-21)
(b) Deposition of Bhaskar Babu Rao Jadhav (PW-57)
(c) Deposition of Dayandeo Sonaji Geete (PW-320)
(d) Deposition of Vijay Meru (PW-561)
(e) Deposition of Shivajirao Kondiram Babar (PW-683)
Confessional Statement of appellant (A-21):
32. His (A-21) confessional statement had been recorded, however, the same had been discarded by the Designated Court, thus it cannot be considered. The evidence against the appellant (A-21) remains the recovery of the aforesaid arms and ammunition. In fact, an FIR had been registered on 5.4.1993 at 6.10 p.m. that the appellant (A-21) was found in possession of a Carbine of 30 Caliber of U.S. make, three magazines and 28 cartridges without holding a fire arms license. It was further revealed that on that day, the police got information that the appellant (A-21) who was a resident of Pydhonie, Mumbai was scheduled to come near a mosque opposite Pydhonie Police Station to acquire arms and ammunition of foreign make. On that information the trap was arranged near the Pydhonie Police Station. At about 1.30 p.m. the trap party received the pre-decided signal, on which the appellant (A-21) was searched, however he was not carrying any arms and ammunition with him. He was brought to the DCB, CID office and during interrogation he expressed his willingness to make a voluntary statement. Therefore, two panchas were called from the nearby area and in their presence, the appellant (A-21) disclosed that he had acquired two Carbines of foreign make and some arms and ammunition from one Mujahidan and one of the said Carbine had been concealed at Naryalwadi, Mazgaon. The appellant (A- 21) led the police party and Panchas to Naryalwadi Muslim Cemetery (Kabaristan), Mazgaon and from the said graveyard he took out one gunny bag duly tied with a rope. It had been concealed in thickly grown trees and shrubs. On being examined, one single barrel Carbine, 28 cartridges and 3 magazines were found. Panchnamas have made for his disclosure statement as well as for recovery of the said articles.
Deposition of Bhaskar Babu Rao Jadhav (PW-57):
33. He is a panch witness. He supported the case of the prosecution and proved the disclosure statement of the appellant (A-21) as well as the recovery made at his behest. He gave a full description of how the appellant (A-21) made the disclosure statement and how the recoveries were made. It corroborates the version given in the FIR. However, in his cross-examination, he (PW-57) stated that he (PW-57) had prepared the notes for deposing in the court. He had given full details of the incident of 5.4.1993. In cross-examination he had admitted that he had also acted as a panch witness in 3 more cases.
Deposition of Dayandeo Sonaji Geete (PW-320):
34. His deposition revealed that he had accompanied the appellant (A-21) at the time of recovery alongwith others. He admitted in his cross-examination that he himself had not made any entry in the Station Diary regarding the information received by Senior P.I. Shri Kumbhar about the appellant (A-21). He has further deposed that he could not remember the manner in which the panch witness arrived in the office. The said panch was brought by the police hawaldar. The appellant (A-21) had been detained in the office of DCB, CID under suspicion due to the receipt of information that he was to be at Pydhonie for acquiring arms. He also deposed that the office of the Bombay Municipal Corporation was inside the Naryalwadi Kabaristan from where the recovery had been made at the instance of the appellant (A-21). He further proved the recovery and denied the suggestions that the appellant (A-21) did not make any disclosure statement nor any recovery had been made at his behest.
He has also identified appellant (A-21) in the court.
35. The deposition of Dayandeo Sonaji Geete (PW-320) has been fully corroborated by another police official Vijay Meru (PW-561) in all respects. However, he has admitted that he had not made any entry in the Station Diary regarding the information received by Senior P.I. Shri Kumbhar, nor he was aware how the panch witness arrived and who was the police hawaldar who brought the panch witnesses. However, he (PW-561) deposed that he had detained the appellant (A-21) on information that he was to be at Pydhonie for acquiring arms. Appellant (A-21) came there at about 1.30 p.m. and on getting the signal, the police party pounced upon him and apprehended him. Appellant (A-21) was searched but he was not carrying any weapon, however, one Ceiko watch, his driving licence, labour card bearing his photograph of Arab Emirates and some Dirhams and a silver ring were found with him. The inventory of the said articles was prepared and they were seized. The currency in Dirhams was of the value of Rs. 13 to 14 thousand Indian rupees. He was interrogated by A.C.P. Shri Babar (PW-683) and Senior P.I. Shri Kumbhar. It was during his interrogation that appellant (A-21) expressed his desire to make the voluntary statement regarding fire arms. Thus, two panchas were called. The suspect was introduced to the panchas. The memorandum panchnama was prepared in respect of his disclosure statement. It was signed by panch witnesses and, thus, he supported the recovery of the articles as narrated by the other witnesses. He had proved the complaint as well as the proforma FIR on the basis of the said complaint. PW.561 registered the said offence as LAC No. 18 of 1993 against the appellant (A-21) for the offences punishable under Sections 3 and 7 read with Section 25 of the Arms Act. Though he was competent to answer as to whether the panch witnesses had been stock witnesses or whether there was any discrepancy in drawing the memorandum panchnama but defence did not ask any question during his cross-examination. He (PW-561) identified the appellant (A-21) on 24.4.1998 in the court and he has denied the suggestion made by the defence that the appellant (A-21) had not made any disclosure statement, nor the recovery of arms had been made on his disclosure statement.
Deposition of Shivajirao Kondiram Babar, ACP (PW-683):
36. In his deposition, he revealed that he had received the information about appellant (A-21) that he would get the weapons near a mosque opposite police station Pydhonie. He had received the information from a secret source on telephone, he recorded the same and passed on the same to the senior officers. He deposed that on 5.4.1993 while he was in his office at Crawford Market, he had received the information from his source on telephone to the effect that appellant (A-21) involved in Bombay blast case was in possession of fire arms and would be available at Pydhonie. Immediately thereafter, he formed a team of police officers and staff and went to the Pydhonie and arrested the appellant (A-21), brought him to the office of DCB, CID at Crawford Market and he (A-21) was interrogated. This witness further supported the prosecution case that he made a desire to make confession voluntarily etc. etc.
37. The recovered material was sent for FSL, and the report Ext. 1940-A was received. According to which US Carbine gun and 28 cartridges sent for FSL were examined. The carbine gun was found in working condition, and it was capable of chambering and firing the cartridges recovered in that offence. So, the report was positive.
38. The appellant (A-21) made a complaint before the Designated Court, and the court directed his medical examination. He was examined and again sent on police remand.
39. After appreciating the entire evidence, the learned Designated Court came to the conclusion as under:
Since criminal conspiracies are hatched in secrecy and it is extremely difficult to collect the direct evidence about the same the established principles of law indicate that the standard of a proof requiring such type of cases is loosened, unnecessary hard standards regarding the identity of a particular person cant be expected.. … Thus, considering in proper perspective all the said evidence, no other conclusion will emerge of A-21 having committed all the offences for which he is charged with on the account of commission of overt acts, but the same will lead any prudent man to the legitimate conclusion of A-21 having committed the aforesaid acts for the purposes of furthering the object of conspiracy.
40. In view of above, the Designated Court found him guilty and imposed the punishment as referred to hereinabove. We find no reason to interfere with the directions of the Designated Court. The appeal is accordingly dismissed.