II. Sayyed Abdul Rehman Shaikh (A-28) Vs. State of Maharashtra
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay Blast case – Conviction under Section 3(3) of TADA – Involvement of A-28 – Confessional statement of A-28, co-conspirator and depositions of witnesses – A28, driver by profession – His own confessional statement establishing his involvement in Shekhadi landing and knowledge about nature of contraband – Same corroborated by confessional statement of co-accused. Held, no interference needed.
143. The appellant (A-28) has been convicted on two counts under Section 3(3) TADA for the offence of conspiracy, and has been awarded 7 years rigorous imprisonment alongwith a fine of Rs. 25,000/-, and in default of payment of fine, to suffer further RI for 6 months on each count.
144. In addition to the first charge of conspiracy, he had been charged under Section 3(3) TADA for the following offences:
(i) That he participated alongwith the other co-accused in the landing and transportation of arms, ammunition and explosives at Shekhadi, and transported the same from Shekhadi, Mhasla to Shilphata, Bombay in a Motor Tempo, bearing Registration No. MCY-2279. Further, he (A-28) has also transported RDX explosives from Mhasla to the godown of co-accused Noor Mohmed Haji Mohmed Khan and Mohmed Jindran Mumtaz Jindran in Motor Tempo No. MMP-4799, while accompanied by Shakil Shahbuddin Shaikh (A-59). He (A-28) has been convicted and sentenced as mentioned hereinabove.
145. Ms. Farhana Shah, learned counsel for the appellant has submitted that the appellant (A-28) did not own the van in which the goods were transported. Moreover, he has served 3 years out of the total sentence awarded to him, and is now 60 years old. Therefore, leniency should be shown to him. Thus, the appeal deserves to be allowed.
146. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that he was involved in the transportation of arms and ammunition within the territory of India, and owing to the serious nature of the offence committed by him, there should be no leniency. Thus, the appeal deserves to be dismissed.
147. We have heard learned counsel for the parties and perused the record.
148. Evidence against the appellant (A-28):
(a) Confessional statement of the appellant (A-28)
(b) Confessional statement of Abdul Gani Ismail Turk (A-11)
(c) Confessional statement of Dawood Taklya Mohammed Phanse (A-14)
(d) Confessional statement of Sharif Parkar @Dadabhai (A-17)
(e) Confessional statement of Suleman Mohammed Kasam Ghavate (A-18)
(f) Confessional statement of Shakil Shahbuddin Shaikh (A-59)
(g) Confessional statement of Shahnawaz Khan (A-128)
(h) Deposition of Vijay Govind More (PW.137)
(i) Deposition of Uttam K. Kale (PW.190)
(j) Deposition of Dileep M. Katarmal (PW.284)
149. Confessional statement of Sayyed Abdul Rehman Shaikh (A-28):
His statement was recorded by Sanjay Pandey (PW.492), DCP on 23.4.1993 and 26.4.1993. In his confessional statement, he has disclosed that he was a driver by profession and that he had a driving licence. He had known Tiger Memon (AA) for the last 6-7 months and also Anwar, Gani (A-11), Rafique Madi and Haji Yakub. Hazi Yakub was a friend of Anwars. He had gone to Ajmer alongwith the other co-accused Suleman and Anwar in April 1992, for smuggling activities. After 2-3 months of his visit to Ajmer, upon the instructions of Anwar, the appellant (A-28) had reached Bandra station with one change of clothes. Shafi and Suleman had come there in a Maruti car, in which he (A-28) had also driven alongwith them, till Linking Road. From there, the appellant (A-28) alongwith the others had gone to an open theatre by way of taking a jeep. Tiger Memon (AA) had arrived there alongwith Imtiyaz and Anwar in a blue coloured Maruti car. Anwar had instructed the appellant (A-28) to follow the car of Tiger Memon (AA), and they had gone to Panvel and had reached the Welcome Hotel. Anwar had gone with Tiger Memon (AA). Imtiyaz and the appellant (A-28) were directed to reach the tower alongwith the other co-accused. They had gone to Goregaon, Raigad and had slept there at night. At about 3.30 in the morning, Tiger Memon (AA) had come with a truck carrying Imtiyaz, Anwar, Dadabhai (A-17), Dawoodbhai (A-14) and about 20-25 labourers. The appellant (A-28) had woken up and realized that there were also two more jeeps and one truck. Silver bricks were removed from the truck that had been brought by Tiger Memon and the same were loaded into all the vehicles standing at the tower. The appellant (A-28) alongwith Rafique Madi, had taken 18 silver bricks and had thereafter, proceeded towards Hyderabad. In Kolhapur, they had handed over the goods to Pradeep Chandra Jain and had thereafter, returned to Bombay with an empty vehicle.
149.1 After this, on 5.2.1993 at about 12.30 A.M., when he was returning from shooting (as he has claimed that he worked in movies, particularly in stunts), he had been called by Tiger Memon (AA), and had been asked to go to Mhasla. Yeda Yakub who was also there, had given him the keys to a Matador tempo, which belonged to Abdul Samad, a decorator in Mahim. He had gone to Mhasla alongwith Suleman (A-18) and Gani (A-11) and there he had met Dawood Bhai who had taken them near the tower, and had told them that the goods had been kept in a pit, and that it would take some time to remove them. Dawood (A-14) had then asked him, alongwith the others to return at around 7-7.30 a.m. with a vehicle. From there he had gone to the house of a lady (school teacher) in Mhasla Village, and had eaten and also rested there. In the evening, they had gone to the tower. It was a moon-lit night, and at the said time Dawood (A-14) and Dadabhai (A-17), alongwith their 10-15 servants had come there and had proceeded to load the goods, i.e. 55-60 sacks into the vehicle that had been brought by him. Some empty sacks were also put in after folding the same over the goods. They had then gone to the Welcome Hotel at Panvel. Tiger Memon had also come there. Tiger Memon had sent Gani (A-11) and Suleman (A-18) to the Persian Darbar Hotel. Then Tiger Memon had gone inside the Welcome Hotel with the appellant (A-28), they had met one fair and tall person who had brown eyes. The appellant (A-28) had been introduced to him by Tiger Memon (AA), and was also directed to work in accordance with his instructions. On being asked, the appellant (A- 28) had disclosed that he (A-28) had also seen the Delhi Darbar Hotel in Dahisar Check Naka. Then, the fair tall man had told the appellant (A-28) to park the said vehicle in front of the hotel, on the other side of the road and had told him that one Shakeel (A-59) would meet him there, who would then unload the vehicle. As per the instructions of Shakeel, the appellant (A-28) had proceeded to park the vehicle. A Nepali had then come there, and some persons had unloaded the goods from the vehicle and had then brought the said vehicle back to the Delhi Darbar Hotel, after which, the appellant (A-28) had left for Virar in the said vehicle.
149.2 Subsequently on 8.2.1993, at about 6-6.30 in the evening, Anwar had met the appellant (A-28) at Bandra Talab naka and had asked him to go to Mhasla again. The appellant (A-28) had gone there alongwith Yakub. Tiger Memon (AA) had also arrived there after about one hour alongwith a jeep. He had given the jeep to Suleman (A-18) and thereafter, told him to leave. The appellant (A-28) upon the instructions of Tiger Memon (AA), had returned alongwith the vehicle and had handed over the said vehicle to Gani (A-11) and returned to Bandra Talab. Anwar had then paid Rs.5,000/- to the appellant (A-28) in the evening, in lieu of the aforementioned job. The appellant (A-28) had thus been working continuously for Tiger Memon. However, he had been unaware of the contents or nature of the goods. It was only after the Bombay Blast had taken place on 12.3.1993, and when Tiger Memons name had appeared in the newspapers, that the appellant (A-28) had realised that he had committed a mistake by participating in the said landing and transportation, as he thought that perhaps, instead of silver and gold, it had actually been weapons that were smuggled in by him. He was arrested during the shooting of a movie, in which he was working.
150. Confessional Statement of Abdul Gani Ismail Turk (A-11):
His confessional statement has revealed that the appellant (A-28) had been at the residence of Tiger Memon (AA) at the Al- Husseini building. When he had gone there on 4.2.1993, after about 4-5 days, he had met Suleman Kasam Ghavate (A-18) and Sayyed Abdul Rehman (A-28). They also had a tempo with them. Tiger had given Gani (A-11) a sum of Rs.1 lakh and had asked him to go alongwith the appellant (A-28) and Suleman Mohammed Kasam Ghavte (A-18), to pay the said amount to Dawood Taklya (A-14), and while returning, to bring back with them, the black soap. It was the same black soap which had been brought to the tower on the night of 3.2.1993. The tempo was thus loaded by the appellant (A-28), alongwith Suleman Mohammed Kasam Ghavte (A-18) and several others. The same finally contained 59 boxes of chemical, and was brought to Bombay, after which he had met Tiger Memon.
151. Confessional Statement of Dawood Taklya Mohammed Phanse (A-14):
In his confession, he has revealed that after collecting the smuggled goods, he alongwith others, including the appellant (A- 28) had reached the tower. Tiger Memon (AA) had instructed all the persons to remain outside, except his own men. Tiger Memon (AA) had even asked the watchman (A-62) to leave. Tiger Memon (AA) had further instructed them to remove all the empty boxes and jute cloth from there, and to burn the same. At the time when they had gone inside, they had seen that the men of Tiger were opening boxes, and that they were placing rifles, pistols, bullets, hand grenades, bundles of wire with white pencils on top of them, and black soap like material on the side. Tiger Memon (AA) was seen sitting on the side and after counting, he would make notes in his diary. Baba, Driver (A-73) and the appellant (A-28), were among the men of Tiger Memon who were opening the cavities of the jeeps and tempos parked there. At this time, Tiger Memon (AA) took out a pencil like thing made of white steel like material, and showed the same to him (A-14) and to Dadabhai (A-17). He had told them that each object was worth Rs.25,000/- and that the same could even be used to explode the Oberoi Hotel.
152. Confessional Statement of Sharif Parkar @ Dadabhai (A-17):
His confessional statement has disclosed that on 7.2.1993 Gani (A-11) had come with a tempo. He had been accompanied by Miya @ Suleman Ghavte (A-18) and Sayyed Abdul Rehman Shaikh (A-28). At this time, Gani (A-11) had brought Rs.1 lakh with him and had given the same to Dawood Taklya (A-14). The smuggled goods were loaded into the tempo, which then left for Bombay.
153. Confessional statement of Suleman Mohammed Kasam Ghavate (A-18):
This accused (A-18) in his confessional statement disclosed that he reached Mhasla on 6.2.1993 alongwith appellant (A-28) and A-11, A-14 and A-17 were already present there. They put 59-63 packets containing powder in a vehicle. While they were coming back they met Tiger Memon (AA) in Panvel. On 8th February, 1993, A-18 drove a white tempo as directed by Anwar and got off at Panvel. After some time, another yellow tempo, driven by appellant (A-28) arrived there in which A-18 sat and drove upto Mahad. They reached in front of Besawa Hotel in Mahad where another tempo, driven by appellant A-28 appeared and then they went to Mhasla where goods were divided in both the tempos. On their way to Panvel, he saw Tiger Memon (AA) in a car and he asked A-18 to take the tempo to Chilparakalyan. When they reached Chilparakalyan, they met Tiger Memon (AA). Tiger Memon drove the tempo himself and came back with an empty tempo in half an hour.
154. Shakil Shahbuddin Shaikh (A-59) and Shahnawaz Khan S/o Faiz Mohmed Khan (A-128) in their confessional statements have supported the case of the prosecution, as they have stated that the appellant (A-28) had participated in the landing and transportation.
155. Deposition of Uttam K. Kale (PW.190) – He deposed that he has recorded the confession of appellant (A-28). On 1.6.1993, appellant (A-28) expressed his willingness to make a voluntary confession because of repentance and denied being induced or coerced. He was given 48 hours to re-think and he recorded his statement on 4.6.1993 as he was busy on 3.6.1993. The said witness identified the confessional statement of A-28 in court.
156. Deposition of Vijay Govind More (PW.137) – He deposed that he was working as labourer at Wangni Tower. He wrongly identified the appellant (A-28) as Anwar and in his statement did not name appellant (A-28) but corroborated in general particulars in respect of transportation of goods smuggled at Shekhadi. He also stated that goods were unloaded at Wangni Tower and shifted in another vehicle and at that time Tiger Memon (AA) and Dawood Taklya (A-14) among others were present.
157. Dileep M. Katarmal (PW.284) in his statement has deposed that A-17 has purchased a few dozens gunny bags from his shop on 10.2.1993, though he did not name the appellant (A-28) specifically but he corroborated in general particulars the confession of appellant (A-28) wherein he stated that he alongwith Najeeb had purchased 1500 sacks from the said shop.
158. Considering the material contained in the confession of the appellant (A-28), and in those of the aforesaid co-accused, it was held that the same leads to the inescapable conclusion that the appellant (A-28) had in-fact been involved in the Shekhadi landing operation, and had thus committed the offence under section 3(3) TADA. The evidence also establishes his involvement in the commission of the offence of conspiracy to commit terrorist acts since the appellant (A-28) was certainly aware of the nature of the contraband material, and had still transported the same, the said act amounts to furthering the object of the conspiracy to commit terrorist acts. However, it was held that the appellant (A-28) had not committed any acts and had not participated in any conspiratorial meetings, to denote that he had been a party to the conspiracy to commit the serial bomb Blast or the larger conspiracy i.e. the first charge.
159. So far as the appellant (A-28) is concerned, his confessional statement which stands corroborated by the confessional statements of the other co-accused, particularly, Abdul Gani Ismail Turk (A- 11), Dawood @ Dawood Taklya (A-14), Imtiyaz Yunusmiya Ghavte (A-15), Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) and Shahnawaz Khan (A-128) reveals his involvement in the Shekhadi landing and further establishes that he had been fully aware of the nature of contents of the contraband and had still transported the same. Such an act tantamounts to furthering the object of the conspiracy to commit terrorist acts. Taking into consideration his close association with Tiger Memon (AA) and his associates, with respect to their smuggling activities, it is difficult to believe that he was unaware of the nature of the contents. Thus, we are of the view that he has rightly been convicted under Section 3(3) TADA by the Designated Court.