Khalil Ahmed Sayed Ali Nazir (A-42) Vs. State of Maharashtra Through CBI
State of Maharashtra v. Khalil Ahmed Sayeed Ali Nasir
Criminal Appeal No. 1035 of 2012
State of Maharashtra v. Khalil Ahmed Sayeed Ali Nasir
Criminal Appeal No. 1035 of 2012
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 3(2)(i)(ii), (4), 5 and 6 – Penal Code, 1860, Section 120B read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 IPC – Arms Act, 1959, Sections 3 and 7 read with Sections 25 (IA), (lB)(a) – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Bombay Blast case – Bombay blast case – Conviction under Section 3(3) and 6 of TADA and Sections 3 and 7 read with Section 25 (I-A), (I-B)a of Arms Act – Appellant’s confessional statements – Admitting involvement in landing/ transportation of contraband – Vivid description of how goods were smuggled and filled into 196 boxes – No knowledge about the content before hand – On 22.03.1993 given a bag containing 2 revolver and other material by A-14 for safe custody – Besides own confessional statements of A-25, A-14, A-61, A-62, A-27 and depositions of PWs 45, 137, 596 – Recovery at the instance of appellant – Conviction under Section 3(3) of TADA – A-14 had faith in appellant and given arms and ammunition to keep – But since he had not participated in any meeting and done this act much prior to blast, he is not guilty for larger conspiracy. Held no contra view is needed.
The appellant (A-42) was involved in the Shekhadi landing operations and had committed offences punishable under sections as mentioned hereinabove. Having regard to the fact that Dawood @ Dawood Taklya (A-14) had chosen the appellant for the purpose of keeping 2 revolvers with him and the fact that the appellant (A-42) had readily kept the same, reveals that he was a man in which the prime accused had confidence with respect to the conspiracy. However, since he had committed the aforementioned relevant acts much prior to the date of the bomb blasts and had not participated in any meetings, nor was he connected with the same in any manner, and the fact that the acts were committed by him at a time when even the targets of the Bomb blasts had not been fixed, he could not be held guilty for the offence of larger conspiracy i.e. first charge. (Para 484.1.)
466. This appeal has been preferred against the judgments and orders dated 18.9.2006 and 19.7.2007, passed by Special Judge of the Designated Court under the TADA in the Bombay Blast Case No.1 of 1993. The appellant (A-42) was guilty for the offence of conspiracy to commit terrorist acts i.e. part of charge from charge firstly, punishable under Section 3(3) TADA, and on the said count, the appellant was convicted and sentenced to suffer rigorous imprisonment for 10 years, and was ordered to pay a fine of Rs.50,000/-, and in default of payment of fine, was ordered to suffer further RI for a period of one year. The appellant was also found guilty for the offence punishable under Section 3(3) TADA, for the commission of such acts as were found to be proved from charge at head secondly, and he was convicted and sentenced to suffer RI for 10 years and was ordered to pay a fine of Rs.25,000/- and in default of payment of fine, was ordered to suffer further RI for a period of six months. He was further convicted and sentenced for 10 years R.I. with fine of Rs.50,000/- under Section 6 TADA; and convicted under Sections 3 and 7 read with Section 25(1-A)(1- B)(a) of the Arms Act, but no separate sentence for the same was awarded. However, all the sentences have been directed to run concurrently.
467. Facts and circumstances giving rise to this appeal are :
A. In addition to the main charge of conspiracy, the appellant was charged for his involvement in the Shekhadi landings on 3.2.1993 and 9.2.1993 including the transportation of smuggled arms, ammunition and explosives from Shekhadi to Wangni Tower and further during the period of February-March 1993 for keeping in his possession, two 9 mm pistols, 3 magazines and 25 rounds without a valid licence, which were recovered on 26.3.1993 from his residence. In view of his possession of the aforesaid arms and ammunition, he was further charged under Section 6 TADA.
B. After conclusion of the trial, the learned Designated Court held the appellant guilty and awarded punishment as referred to hereinabove.
Hence, this appeal.
468. Mr. Mushtaq Ahmad, learned counsel appearing for the appellant, has submitted that the court below has over emphasized the evidence of recovery which is not worth reliance for the reason that the same did not bear the signature of the appellant/accused (A-42). Moreover, the panch witness was a stock witness, and therefore, his evidence is not credible. It was also submitted that the confession of the appellant (A-42) was not voluntary and that the same was obtained by way of coercion and that the entire case is concocted. Therefore, the appeal deserves to be allowed.
469. Mr. Mukul Gupta, learned senior counsel appearing for the State has opposed the appeal, submitting that the participation of the appellant (A-42) in the landing has been corroborated by the confessional statements of various co-accused; and that the appellant (A-42) was well acquainted with persons indulging in regular smuggling activities. Furthermore, it was also submitted that the said confessional statement was recorded strictly in accordance with the law, and therefore the same must be relied upon. Moreover, the recovery was made on the basis of the disclosure statement of the appellant, and the fact that the same did not bear his signature would not make it inadmissible. Thus, the appeal lacks merit and is liable to be dismissed.
470. We have considered rival submissions made by learned counsel for the parties, perused the evidence on record and also the impugned judgment.
471. Evidence against the appellant:
(a) His own confessional statement
(b) Confessional statement of Muzammil Umar Kadri (A-25)
(c) Confessional statement of Dawood @Dawood Taklya Mohammed Phanse @Phanasmiyan (A-14)
(d) Confessional statement of Sajjad Alam @Iqbal Abdul Hakim Nazir (A-61)
(e) Confessional statement of Tulsiram Dhondu Surve (A-62)
(f) Confessional statement of Rashid Umar Alware (A-27)
(g) Depositions of Vijay Govind More (PW-137), Laxman Loku Karkare (PW-45), Hari Baburao Pawar (PW-596)
Confessional statement of appellant (A-42):
472. The appellant (A-42) in his confessional statement stated that he was an agriculturist and owned land in Medandi and that he indulged in agricultural and smuggling activities. He (A-42) used to smuggle for Tiger Memon (AA). He had worked as a welder in a defence workshop in Kuwait during 1976-1987. Thereafter, he had worked in Saudi Arabia in the year 1991 as a caterer in a hotel. Thereafter, he started his own workshop. He (A-42) had participated in the landing and transportation of smuggled goods, particularly, silver bricks etc. which had taken place on 3.2.1993, alongwith Dawood Taklya (A-14) and Abdul Salam Hishamuddin Nazir who belonged to his village. Appellant (A-42) gave a complete description of how the goods were smuggled and deposed that they reached Shekhadi at about 11.00 P.M. The material had already landed before they reached, and thereafter, the said material was loaded into a truck. Tiger Memon (AA) was also present. The said material was filled into 196 boxes and these boxes were then sealed by wrapping them up in Bardan (Jute bags). The appellant (A-42) sat with the driver while transporting the said goods and they were hence, brought into Bombay. The appellant (A-42) stated that it was only after returning from Shekhadi and after the transportation of the smuggled goods was complete, that he was informed by Hasan and Azim that the landed material was not silver, but arms and ammunition, hand grenades, black soap and cartridges. He further admitted that he was given Rs.5,000/- by Dawood Taklya (A-14) as a reward for participating in the landing. Tiger Memon (AA) had threatened everybody that in the event that anyone disclosed details about the said landing to any other person, his family would be eliminated. He further stated that on 22.3.1993, Dawood Taklya (A-14) had come to his house and had given him a bag for safe-keeping, stating that he would collect the same later, as the police was searching for him. He (A- 14) informed the appellant (A-42) that the bag contained 2 revolvers and also some other material. Dawood Taklya (A-14) was arrested by the police, and during his interrogation, he disclosed to the police that 2 revolvers were lying with the appellant (A-42). Thus, the police came to his house, and the appellant (A-42) then took out the revolvers from a place in front of his house where he had hidden the same, and handed them over to the police.
Confessional statement of Muzamil Umar Kadri (A-25):
473. He disclosed the participation of the appellant (A-42) in the Shekhadi landing on 3rd February. He also stated that in January 1993, Rahim Laundrywala alongwith Shafi had come to the house of the appellant Khalil (A-42) by jeep, and had called him there. Shafi had told him to keep certain goods at his house. After being asked by the co-accused, Shafi informed him that the goods were actually 16 rifles and 32 cassettes. When he expressed his inability to keep them, he was threatened with dire consequences and therefore, he kept the said goods in his house. Thus, A-25 has stated that in January 1993, the witness was forced to keep the arms and ammunition upon coercion by Rahim Laundrywala and Shafi. At the said time, the appellant (A-42) was also present with them and had also participated in the landing at Shekhadi.
Confessional statement of Dawood Taklya (A-14):
474. He supported the case of the prosecution regarding the participation of the appellant (A-42) in the landing at Shekhadi. Before the landing took place, the appellant (A-42) had negotiated with the Mhasla Custom Inspector, Kadam and the said Custom Officer had told the appellant (A-42) that the goods must be dispatched after 2.00 A.M., and accordingly, the said landing had taken place. This accused (A-14) has stated that after participating in the landing, he returned to his home alongwith the appellant (A- 42), and others in the rickshaw of Iqbal and that this accused (A- 14) had given to the appellant (A-42) a sum of Rs. 50,000/- which was to be paid at the Mhasla Police Station, which the appellant (A-42) confirmed was paid the next day. The witness further deposed that the appellant (A-42) was also paid a sum of Rs.2,000/- for participating in the landing.
Confessional statement made by Sujjad Alam (A-61):
475. He stated that the appellant (A-42) had participated in the landings at Shekhadi on several occasions and that the witness was paid Rs.2,000/- per landing through the appellant Khalil (A-42). He further stated that he had seen the appellant (A-42), and the other co-accused (Tigers men), taking out goods in gunny bags from a jeep and bringing the same into a room in the house of the appellant (A-42). At the said time, the son of accused Dawood Sarfaraz (A-55), was also present. The accused (A-61) had also seen the appellant removing 16 rifles and 32 cassettes (Magazines), from the bags and later on, the accused had seen the appellant (A- 42) sitting in the jeep and closing the secret cavities in the jeep. The said jeep was then driven away by Shafi. On 3.2.1993, the accused (A-14) was told by the appellant (A-42) that his maternal uncle had told him that there was a landing of Tigers goods that night and therefore, the two of them went for the said landing alongwith several other persons, and participated in the landing and transportation of the smuggled goods. It was only after the work, including the transportation of the said goods was over, that Taklya (A-14) had gone alongwith the appellant (A-42) to his house.
On the afternoon of 9.2.1993, Dawood Taklya (A-14) met the witness at Mhasla S.T. Stop and asked him to come to Mhedandi. He took him to Mhedandi, from where he picked up the appellant (A-42) from his house, and then they reached Muzammails residence. There Dawood Taklya (A-14) told Muzammil (A-25) to hand over to him, 3 rifles and 6 cassettes. The said armaments were handed over by Muzammil (A-25) while wrapped in a gunny bag, and after taking the same from him, all of them came to Lonery Phata on the highway. After a while, Tiger Memon (AA) also arrived there and they shifted the bag containing rifles and ammunition to his car. On the said day, in the evening, Khalil (A-42) came to him (A-14) and told him that they that had to go for the landing in the evening, and the witness has given a full description of their participation in the said landing on 9th February at Shekhadi.
Confessional statement of Tulshiram Dhondu Surve (A-62):
476. He was an employee at the Wangni Tower where he was working as a watchman alongwith co-accused Harishchandra Laxman Surve and labourer Vijay Govind More. They were paid to let the smugglers keep contraband items in Wangni Tower. During the loading, at the relevant time, Sarfaraz Phanse (A-55) and Khalil Nazir (A-42) were keeping watch while on a motor cycle. The goods were unloaded, repacked and taken away. On being asked, Dawood Taklya told him that the smuggled goods were not silver bricks, but were black soap and guns. He was warned not to disclose this factum of keeping smuggled goods in the Wangni Tower to anyone. Thereafter, he stated facts regarding the second landing on 2.2.1993 and also as regards helping the smugglers, wherein the appellant (A-42) was also present alongwith Tiger Memon and his associates, and they were fully armed with guns and pistols. The appellant (A-42) was keeping watch.
Confessional statement of Rashid Umar Alware (A-27):
477. He supported the case of the prosecution regarding the participation of the appellant (A-42) to the extent that he was the owner of the truck in which the smuggled goods were brought from Shekhadi to Wangni Tower, and then to Bombay. According to him, the goods were taken to Wangni Tower and after unloading a part of the said goods, he was asked to wait outside. The remaining goods were then unloaded and the same were kept in one pit dug into the land. At the time of keeping the goods in the pit, the accused was taken away so that he could not see what was being put there. A person, whom this witness does not know, then gave him Rs. 13,000/- for the said transportation work and assured him that the balance amount would be paid after two days. After two days, a balance amount of Rs.7,000/- was paid to him by the appellant (A-42).
478. The prosecutions version of events was further supported by Vijay Govind More (PW-137) and he also identified this appellant (A-42). The recovery of pistols has been reported from him, which has also been duly supported by Laxman Loku Karkare (PW-45).
479. Laxman Loku Karkare (PW-45), panch witness, in his examination-in-chief stated that on 26.3.1993 he was in village Mhedandi and was called by P.I. Pawar (PW-596) to stand as panch witness. Pawar (PW-596) brought a person from the police van who disclosed his name to be Khalil Ahmed Sayed Ali Nazir (A-42) to the witness. Khalil (A-42) led the police party and the panchas to his house. At his house, in a cupboard in the sitting room, the police found two pistols, 34 rounds wrapped up in newspapers, and 2 small magazines.
480. Hari Baburao Pawar (PW-596), Police Inspector, supported the case of the prosecution and stated that on 26.3.1993, he had gone to the village of Mhedandi and had arrested the appellant (A-42) and also Muzammil Umar Kadri (A-25). Thereafter, the appellant (A-42) had showed the police party and the panch witnesses his house, and there they had made a recovery of 2 foreign pistols, 2 empty magazines and 34 cartridges from a cupboard in the sitting room. He had prepared a panchnama and had obtained the signatures of the Panchas on the same. (Ext.162).
481. The signature of the accused is not required on the seizure memo. In State of W.B. v. Kailash Chandra Pandey, (2004) 12 SCC 29, this court held :
10…. The first reason given by learned Single Judge was that no signature of the accused was taken on the seizure list. It has been stated by the prosecution witnesses i.e. by the investigating officers that the accused refused to sign on the seizure list. No accused can be forced to put his signature and the prosecution cannot force him to append his signature on the seizure memo if he refused to sign. Therefore, just because the accused did not append the signature on the seizure memo that cannot be a ground to improbabilise the prosecution story.
482. Similarly, in State of Rajasthan v. Teja Ram & Ors. [JT 1999 (2) SC 279 : 1999 (3) SCC 507], this Court held as under:
Learned counsel in this context invited our attention to one step which PW 21 (investigating officer) had adopted while preparing the seizure- memos Ex. P-3 and Ex. P-4. He obtained the signature of the accused concerned in both the seizure-memos. According to the learned counsel, the aforesaid action of the investigating officer was illegal and it has vitiated the seizure. He invited our attention to Section 162(1) of the Code which prohibits collecting of signature of the person whose statement was reduced to writing during interrogation
No doubt the aforesaid prohibition is in peremptory terms. It is more a direction to the investigating officer than to the court because the policy underlying the rule is to keep witnesses free to testify in court unhampered by anything which the police claim to have elicited from them. (Tahsildar Singh v. State of U.P., AIR 1959 SC 1012; and Razik Ram v. Jaswant Singh Chouhan, AIR 1975 SC 667). But if any investigating officer, ignorant of the said provision, secures the signature of the person concerned in the statement, it does not mean that the witnesss testimony in the court would thereby become contaminated or vitiated. The court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon.
That apart, the prohibition contained in sub-section (1) of Section 162 is not applicable to any proceedings made as per Section 27 of the Evidence Act, 1872….
The resultant position is that the investigating officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure-memo for the recovery of any article covered by Section 27 of the Evidence Act. But if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it…
483. The submission made by Shri Mushtaq Ahmad that the evidence of recovery cannot be relied upon for the reason that the same did not bear the signature of the appellant/accused (A-42), is not worthy of being accepted [Vide: State of Rajasthan v. Teja Ram & Ors., (supra); and Prasad Ramakant Khade v. State of Maharashtra [JT 1999 (8) SC 302 : 1999 (8) SCC 493] (para 8)].
484. After appreciating the evidence on record, the learned Designated Court came to the conclusion that the confession of the appellant (A-42) revealed that on 3.02.1993, Dawood Taklya (A- 14) had informed him that a landing would take place in the evening, and thereafter, the appellant (A-42), Nazir (AA) and Dawood Taklya (A-14) had gone to Shekhadi Coast. Thereafter, the appellant (A-42) had gone to the village of Borli to bring back men and a truck for the landing, and he had returned to the coast in the truck of Rashid Umar Kadri (A-27) with A-27, Sajjad Alam @ Iqbal Abdul Hakim Nazir (A-61), Bashir Ahmed Usman Gani Khairulla (A-13), Sharif Khan Abbas Adhikari (A-60), Muzammil Umar Kadri (A-25) and Azim Pardeshi at midnight. The landed goods were taken to Wangni Tower. At the tower, the same were loaded into tempos and jeeps, and the appellant (A-42) sat by the side of the driver. The contraband items were then taken to Bombay, and the appellant (A-42) was told by Hasan and Azim that said goods were not silver, but rifles, handgrenades, black soap and cartridges. On 22.03.1993, Dawood (A-14) came to house of the appellant (A-42) and gave to him, one bag telling him that it contained 2 revolvers. Dawood (A-14) disclosed to the police that he kept the said revolvers with the appellant (A-42), and the same were recovered from the appellant (A-42).
484.1. Therefore, the learned Designated Court held that the aforesaid evidence lead to the inescapable conclusion that the appellant (A-42) was involved in the Shekhadi landing operations and had committed offences punishable under sections as mentioned hereinabove. Having regard to the fact that Dawood @ Dawood Taklya (A-14) had chosen the appellant for the purpose of keeping 2 revolvers with him and the fact that the appellant (A-42) had readily kept the same, reveals that he was a man in which the prime accused had confidence with respect to the conspiracy. However, since he had committed the aforementioned relevant acts much prior to the date of the bomb blasts and had not participated in any meetings, nor was he connected with the same in any manner, and the fact that the acts were committed by him at a time when even the targets of the Bomb blasts had not been fixed, he could not be held guilty for the offence of larger conspiracy i.e. first charge.
485. We find no cogent reason to interfere with the decision of the Designated Court. The appeal is accordingly dismissed.