IV. Sayed @ Mujju Ismail Ibrahim Kadri (A-104): Vs. State of Maharashtra
Section 3(3) – Bombay Blast case – Charges of facilitating transportation of Ak-56 rifles in motor jeep from Mhasla to Bombay and delivering the same to accused – Further charges for concealing five plastic bags containing initiating device of hand grenades – Conviction under Section 3(3) of TADA – Recovery made at the behest of Appellant No. 104 from lavatory – Recovery and contents proved by depositions of PWs 91, 484, 573 and 586 – FSL report positive – However, nothing to show that appellant transported Ak-56 rifles in motor jeep from Mhasla to Bombay – Designated Court finding no material to hold him guilty under Section 6 of TADA. Held no interference needed.
However, it was held that there being no sufficient evidence to establish offence under section 6 TADA, he cannot be held liable for the same. Similarly there being no evidence to establish that the appellant (A-104) transported AK-56 rifles in motor jeep from Mhasla to Bombay i.e. first limb of second charge, he cannot be held guilty for the same. (Para 305.1)
295. Appellant (A-104) was further charged with aiding, abetting and knowingly and intentionally facilitating the commission of terrorist acts by transporting AK 56 rifles in his motor jeep No. MH-06-A-9175 from Mhasla to Bombay and delivering it to co- accused. He was further charged for possessing and concealing five plastic boxes containing initiating devices of hand grenades smuggled into India for committing terrorist acts, thus charged under Section 3(3) TADA. He was lastly charged with contravening the provisions of Arms Act and Rules and acquiring the possession of fire arms and ammunition and five plastic boxes containing initiating devices of hand grenades, thus charged under Section 6 TADA.
296. He was acquitted of first charge of criminal conspiracy. However, he was convicted under Section 3(3) TADA and sentenced to suffer 5 years RI and a fine of Rs.10,000/- and a suitable R.I. for default of payment of fine.
Dr. B.S. Chauhan, J.
297. Ms. Farhana Shah, learned counsel appearing for the appellant (A-104) has submitted that the appellant has not made any confession that can be used against him and placing a heavy reliance on the confessional statement of the co-accused is erroneous. Moreover, the appellant has already served 3 years of the sentence that was awarded to him. Thus, the appeal should be allowed.
298. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that the recovery was made at the behest of the appellant and his knowledge of the place where the contraband material was kept implicates him in the present case. Therefore, the appeal deserves to be dismissed.
299. We have considered the rival submissions made by learned counsel for the parties and perused the record.
300. Evidence against the appellant (A-104):
(a) Deposition of Laxman Nakti (PW-91)
(b) Deposition of Vasant Jadhav (PW-484)
(b) Deposition of Dayanand Dhome (PW-573)
(c) Deposition of Pratap Dighavkar (PW-586)
301. Deposition of Laxman Nakti (PW-91):
He proved the recovery of arms and ammunition on 17.4.1993 wherein he deposed that recovery was made at the behest of disclosure statement of appellant (A-104). He has further deposed that the police party whom the said witness accompanied was led by appellant (A-104) to a lavatory in the courtyard of the house of Subedar. He removed the dry leaves on the ground at the said place and thereafter took out a plastic bag which was below the said dry leaves. The mouth of the said bag was closed by tying the same by means of a string. It was a green colour plastic bag and the same was opened and five tin boxes of similar size were recovered. He has also proved the disclosure panchnama.
302. Deposition of Vasant Jadhav (PW-484):
He revealed that he was incharge of bomb detection and disposal squad. On 18.4.1993, P.S.I. Gahrate from Mhasla Police Station came to his office with a letter sent by Sub-Divisional Officer, Raigad and a plastic box. He examined the material suspected to be explosives in the plastic box. He sent it for FSL and received the report. (Ext. 2650).
303. Deposition of Dayanand Dhome (PW-573):
In his deposition, he revealed that he was instructed to seize motor jeep bearing registration No. MH-06-A-1 in connection with C.R.No. 6/1993 and he was the person who arrested appellant (A- 104) in the presence of two panchas and the panchnama was prepared (Ext. 1996). He has also deposed that on being interrogated, appellant (A-104) gave information regarding explosives which were recovered in presence of the panch witnesses. It was recovered from the lavatory of the house of Subedar. It contained a military colour bag containing five plastic round shape boxes. The panchnama was prepared and it was proved before the court.
304. Deposition of Pratap Dighavkar (PW-586):
He revealed that he instructed P.S.I. Gahrate to send the explosives seized on 17.4.1993 for Bomb Disposal Unit, Santacruz and he proved the letter by which the said explosives were sent for disposal. (Ext. 2024). He (PW. 586) further deposed that the sample was taken out of the recovery and sent for FSL report.
305. The learned Designed Court after appreciating the evidence concluded that the appellant (A-104) having knowledge of said articles being kept at said place reveals his authorship of keeping them at said place. The same not being rebutted by the appellant (A-104) would lead to conclusion of him being in possession of contraband material and liable for commission of offence under section 3(3) TADA i.e. second limb of second charge.
305.1 However, it was held that there being no sufficient evidence to establish offence under section 6 TADA, he cannot be held liable for the same. Similarly there being no evidence to establish that the appellant (A-104) transported AK-56 rifles in motor jeep from Mhasla to Bombay i.e. first limb of second charge, he cannot be held guilty for the same.
306. We find no cogent evidence on record requiring interference with the judgment of the learned Designated Court. The appeal with reference to the appellant (A-104) lacks merit and is accordingly dismissed.