II. Faki Ali Ahmed Subedar (A-74) Vs. State of Maharashtra
Section 3(3) – Bombay Blast case – Appellant A-74 convicted under Section 3(3) of TADA – Acquitted of charges of conspiracy – A-74 charged for concealing 12 Ak-56 rifles, 36 magazines and 19,500 cartridges of Ak-56 rifles in mango grove, disposal of arms and ammunitions, dumping of cartridges and magazines in Kandalgaon creek and for abetting others for keeping arms and ammunition – His own confession along with the confessions of A8, A133 and depositions of PWs. 89, 90, 378, 585, 586 – Confession voluntary. Held, no evidence to take contrary view.
266. Appellant (A-74) was further charged for concealing 12 AK 56 rifles, 36 magazines and 19500 cartridges of AK 56 rifles which were kept in 3 bags in a cloth and 13 cloth bags in the mango grove of Abdul Razak Subedar. These arms and ammunition had been smuggled into India to be used for terrorist activities and had been recovered at his instance on 7.4.1993 from the said place.
266.1 He was further charged with disposal of the said arms and ammunition alongwith other co-accused dumping the same in Kandalgaon creek.
266.2 He was lastly charged with aiding, abetting the co-accused Shabir and Jamir (absconding) having in possession and carrying fire arms and ammunition under Section 6 TADA.
267. He had been acquitted on the first charge of conspiracy. However, he had been convicted under Sections 3(3) TADA and awarded RI of five years and a fine of Rs.25,000/-, in default of payment of fine, to suffer further RI of six months. Under Section 6, he had been awarded RI of six years and a fine of Rs.25,000/- and a suitable R.I. for default of payment of fine.
268. Ms. Farhana Shah, learned counsel appearing for the appellant (A-74) and Shri Mukul Gupta, learned senior counsel appearing for the State have raised the same contentions which have been raised in respect of Abdulla Ibrahim Surti (A-66).
269. We have considered the rival submissions made by learned counsel for the parties and perused the record.
270. Evidence against the appellant (A-74):
(a) Confessional statement of the appellant (A-74)
(b) Confessional statement of Janardhan Pandurang Gambas (A-81)
(c) Confessional statement of Jamir Sayyed Ismail Kadri (A-133)
(d) Deposition of Shridhar Shantaram Borkar (PW-88)
(e) Deposition of Dattatray Udharkar (PW-89)
(f) Deposition of Anil Baswat (PW-90)
(g) Deposition of Janu Hajari (PW-378)
(i) Deposition of Rajan Dhoble (PW-585)
(j) Deposition of Pratap Dighavkar (PW-586)
271. Confessional Statement of Faki Ali Faki Ahmed Subedar (A-74):
He disclosed that he was a neighbour of Sayed Ismail Kadri (A-105) and his sons Shabir (AA) and Jamir (A-133) indulged in smuggling activities and had connections with Uttam Potdar (A- 30). After the bomb Blast on 12th March, 1993, Shabir came to his (A-74) house and asked him to help one Firoz Khan who had come from Bombay and Firoz Khan told him to hide the boxes of weapons and bags of bullets in the creek. Therefore, he wanted his help to take the things upto the boat. Shabir, his brother Jamir (A- 133), Abdullah Surti (A-66) and Janardhan Gambas (A-81) removed three wooden boxes and six greenish coloured bags kept under the haystack in their cattle-shed and kept it in the boat at the shore. Janu Vetkholi (PW. 378) was present in the said boat. The appellant (A-74) showed them torch light while bags and boxes were being carried. They sailed the boat towards Kandalwada Creek. On the next day, Shabir came and said that bundles of weapons and bags of bullets which were in his possession, were to be hidden in the mango groves. So again in the night the appellant (A-74) along with other co-accused took the 13 greenish coloured bags of bullets of guns and 3 bundles having guns wrapped in the plastic paper from under the haystack and they were buried in the pit dug in the mango grove of Abdul Razak Subedar who was staying in Nairobi at that time and the same was filled and covered by soil and hay. At that time also, the appellant (A-74) had shown the torch light. The appellant (A-74) was taken to the police station after making the inquiry about Shabir (AA) and Jamir (A- 133) and the appellant (A-74) disclosed that 13 greenish bags of bullets of guns wrapped in the wax cloth had been buried in the mango grove of Abdul Razak Subedar. The said items were earlier recovered from there on the confessional statement of the appellant (A-74). He took out the hidden articles from the pit by removing the soil and hay and produced the same. The police seized the arms and ammunition.
272. Confessional statement of Janardhan Pandurang Gambas (A-81):
He has disclosed in his confessional statement that after the Blast, Jamir Sayyed Ismail Kadri (A-133) came to Gambass (A- 81) house and alongwith Abdulla Ibrahim Surti (A-66), Faki Ali Faki Ahmed Subedar (A-74), Shabir and his father (A-105), they hid the weapons in mango grove that landed on 9.2.1993 at Dighi. Thereafter, Gambas (A-81), Jamir Sayyed Ismail Kadri (A-133), Abdulla Ibrahim Surti (A-66) and Faki Ali Faki Ahmed Subedar (A-74) took out three boxes and six packets from the house of A- 74 and placed them in a boat with the help of Janu Vetkholi (PW- 378), who took the boat to Mahendali creek. Faki Ali Faki Ahmed Subedar (A-74) told Gambas (A-81) that the boxes contained bullets and Shabir had informed Gambas (A-81) that the goods had been kept in creek water.
272.1 Thus, the confession of Gambas (A-81) corroborates the confession of Faki Ali Faki Ahmed Subedar (A-74) in material respects in so far as the hiding of weapons in mango grove is concerned and also about taking the weapons to a boat and hiding them in creek water after the Blast.
273. Confessional statement of Jamir Sayyed Ismail Kadri (A-133):
He had participated in the landing at Dighi and he knew that weapons had been smuggled into India. Boxes containing weapons were kept at the house of Faki Ali Faki Ahmed Subedar (A-74) on instructions of Shabir (AA) by Jamir Sayyed Ismail Kadri (A-133), Abdulla Ibrahim Surti (A-66) and Janardhan Pandurang Gambas (A-81). Faki Ali Faki Ahmed Subedar (A-74) alongwith others loaded three wooden boxes and few green bags in the boat of Janu Vetkholi (PW-378), which Shabir and Firoz threw in the Kandalwada creek. Next day, Shabir took Jamir Sayyed Ismail Kadri (A-133) to the house of Faki Ali Faki Ahmed Subedar (A- 74), where Abdulla Ibrahim Surti (A-66) and Gambas (A-81) were already present. They buried the bags containing weapons in the mango grove at a little distance from his house. Jamir Sayyed Ismail Kadri (A-133) was present in the house of Faki Ali Faki Ahmed Subedar (A-74) when police raided his house searching for Shabir after the Blast.
274. Deposition of Shridhar Shanta Ram Borkar (PW-88):
He revealed that he was called at the police station by P.S.I. VH Rane (PW.588) through the Constable. When he reached there he found two more persons present in the room and P.S.I. VH Rane (PW.588) told him that one of them was Sonkar, resident of the village. He was told that the second person was arrested in connection with the Bombay Blast and for that purpose P.S.I. Rane wanted the witness to become a panch witness. The witness was examined in his presence. After preparing the panchnama (Ext. 448) he disclosed his name to be Faki Ali Faki Ahmed Subedar (A- 74) and he got some recovery effected from Shabir Kadris compound. Thus, the panchnama was drawn up about the said event (Ext. 449). Thereafter, the witness (PW.88), Co-panch, the said accused (A-74) and VH Rane (PW.588) went to the place at Agarwada as shown by the said accused. After entering the compound he (A-74) said that the weapons were concealed beneath the grass. The accused (A-74) thereafter removed the grass from the said place and a trench could be seen. The said trench contained three black coloured bundles. A-74 took out the said three bundles. The said trench was also contained 13 military coloured cloth bags. All the said 13 bags were taken out of the said trench. On opening the said trench four rifles and twelve magazines were found wrapped in a gunny bag. The said four rifles were having black colour barrel and wooden colour grip. The rifles were bearing some numbers but the same were illegible as it had been rubbed off. The first military coloured bag contained two rectangular tin boxes, one of the boxes was opened contained 750 cartridges. The second tin box was sealed and the same was not opened in his (PW-88) presence. The remaining 12 military coloured bags contained two rectangular tin boxes each like the boxes found in the first bag and on opening the tin boxes they were found containing 750 cartridges each. The panchnama of the said articles was drawn by P.S.I. Rane (PW.588). One of the rifle out of 12 rifles and one of magazines and five cartridges was taken by the police by way of sample and the same were sealed.
274.1 In his cross-examination he has admitted that he had recorded the date 7.4.1993 in his small diary on which day he was made the panch witness. He further deposed that statement of Faki Ali Faki Ahmed Subedar (A-74) was recorded wherein he had disclosed that the arms and ammunition had been concealed by three persons. He has admitted in his cross-examination that he had signed a large number of slips/labels. All the labels signed by him were not pasted upon all the articles.
274.2 He further deposed that he was not in a position to identify the boxes or say that the boxes shown to him in the court were the same which had been recovered from the grove of Faki Ali Faki Ahmed Subedar (A-74). He has also admitted that certain newspapers had been used for sealing the recovered articles which were of the date subsequent to the date of recovery i.e. 7.4.1993, for example. Bombay Sakal dated 9.4.1993 and Krushival dated 13.4.1993.
275. Deposition of Dattatray Udharkar (PW-89):
He revealed that he is a recovery witness on 8.4.1993. This witness has deposed that he was called at the police station to act as a panch witness. The accused person arrested by the police was also at the police station. On being asked the accused person disclosed his name as Janu Vethkoli. He disclosed that certain weapons had been hidden in creeks. All the persons alongwith the police party and said accused and swimmers went in a fishing boat around Kandalwada and they waited till the low tide was complete. As the water recedes the signs of the bags were seen in the water and the mud of the creek. The said bags were of military colour. Three wooden boxes were also seen at some distance away from the said bags. The said six bags and 3 wooden boxes were taken in the boat. The mouth of one of the bags was loose. The said bag was opened. It contained two sealed tin boxes. One of the boxes was opened and found to contain cartridges. Each box contained 30 paper boxes with 25 cartridges each. The second box was not opened in his presence. The box contained 13 magazines. The panchnama of recovery was prepared. However, when the boxes were opened in the court, newspaper in which boxes had been wrapped was of date subsequent to the date of recovery e.g. Nava Kaal dated 13.4.1993. He identified the green colour bag recovered from the creek.
276. Deposition of Anil Baswat (PW-90):
He revealed that he was a panch witness of recovery on 8.4.1993. He went to the creek alongwith Mhasla and Bombay police and one Janu Vethkoli (PW.378) was also in the boat. There they found three wooden boxes and 6 military cloth boxes at the shore of Kandalwada creek. They got down from the boat and brought the said articles and kept them in the boat. They returned to village Pabala by the same boat.
276.1 In his cross-examination, he has admitted that one of the newspapers used for wrapping the articles was dated 13.4.1993 which is subsequent to the date of recovery.
277. Deposition of Janu Vethkoli (PW-378):
He revealed that he was earlier accused but subsequently discharged. He had been arrested in connection with Bombay blast and prior to the Bombay blast he had been called by Jamir Sayyed Ismail Kadri (A-133) (dead) to bring his boat. Accordingly, he went to Agarwada with his (PW. 378) boat and Jamir Sayyed Ismail Kadri (A-133) told him to wait there. He reached there and after reaching the sea shore at Agarwada he found that Shabir was present. He was asked to anchor his boat and wait. Accordingly, he waited. Thereafter, Shabir told him that there is a foul smell of things in his house and hence the same is to be thrown away in the sea. Two persons who were present alongwith Shabbir transported the things alongwith them. Shabir kept the same in the boat. The things had been wrapped in a gunny bag. Shabbir also boarded his boat and the boat was taken in the creek away from the shore. Upon reaching the creek, Shabir threw away the said articles wrapped in the gunny bag in the water. Thereafter, the witness took the boat to the shore of Agarwada. Shabir alighted from the boat and the witness returned to his village. Shabir did not give any money to PW. 378 though he promised to pay the same.
278. Deposition of Rajan Dhoble (PW-585):
In his deposition, he reveals that the recovery from the Kandalwada creek was effected and three wooden boxes were found and opened at the sea shore. The said bags contained 18, 13 and 13 magazines of black colour. The said recovery had been made at the instance of Faki Ali Faki Ahmed Subedar (A-74).
278.1 In his cross-examination he (PW-585) admitted that one of the newspapers in which the said articles had been wrapped was subsequent to the date of recovery as it was of 13.4.1993. He is the officer who had arrested Faki Ali Faki Ahmed Subedar (A-74).
279. Deposition of Pratap Dighavkar (PW-586):
He revealed that while interrogating Faki Ali Faki Ahmed Subedar (A-74), the said accused expressed his desire to make a voluntary confession. Thus, on the same day he wrote a letter to the S.P. Raigad requesting him to record his confession and he was produced for recording the confession on 7.5.1993 and it was so recorded.
280. With regard to Faki Ali Faki Ahmed Subedar (A-74), the Designated court came to the conclusion that on the basis of disclosure statement made by the appellant (A-74), 12 AK-56 rifles and 36 magazines and cartridges were recovered from mango groves. The appellant (A-74) was having knowledge about the same due to being involved in shifting the said contraband from the house of Jamir Sayyed Ismail Kadri (A-133) and Shabbir (AA) to said mango groves along with Jamir Sayyed Ismail Kadri (A-133) and other co-accused. It was held that said acts and the further acts of the appellant (A-74) of giving assistance in dumping the cartridges of AK-56 rifles and magazines in Kandalwada creek, would make him guilty for commission of offences under sections 3(3) and 6 TADA.
281. We find no evidence on record warranting the interference with the judgment of the learned Designated Court. The appeal with regard to appellant (A-74) lacks merit and is accordingly dismissed.