Liyakat Ali Habib Khan Vs. State of Maharashtra
State of Maharashtra v. Liyakat Ali Habib Khan
Criminal Appeal No. 1029 of 2012
State of Maharashtra v. Liyakat Ali Habib Khan
Criminal Appeal No. 1029 of 2012
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Explosive Substances Act, 1908, Section 5 read with Section 6 – Bombay Blast case – Charges of facilitating and transporting 80 cartons of RDX and storing them in his father’s godown – Confessional statement of himself and his co-accused – Retraction of confessional statement – Confirming full control of Tiger Memon on contraband – Initially not aware of contents of 80 cartons but later came to know – Appellant a mentally challenged person – Convicted under Section 3(3) of TADA and Section 5 read with Section 6 of Explosive Substance Act. No interference required.
Criminal Appeal no. 1029 of 2012
Appeal against acquittal – Plea of State that since respondent was the nephew of Yakub Yeda (AA), he permitted them to use his godown and thus should be convicted under conspiracy. Held, on facts, it is difficult to convict him under conspiracy. Keeping in mind the parameters laid down for appeal against acquittal, no interference needed.
Criminal Appeal No. 1630 of 2007
Criminal Appeal No. 1630 of 2007
347. This appeal has been preferred against the judgment and order dated 30.5.2007 passed by Special Judge of the Designated Court under the TADA for Bombay Blast, Greater Bombay, in Bombay Blast Case No. 1/1993, convicting the appellant under Section 3(3) TADA, and awarding the punishment of 5 years RI with a fine of Rs.25,000/- and in default of payment of fine, to further suffer 6 months RI. He was further convicted under Section 5 read with Section 6 of Explosive Substances Act, 1908 and awarded the punishment of 4 years RI alongwith a fine of Rs.10,000/-, and in default of payment of fine, to suffer further RI of two months. Both the sentences were directed to run concurrently.
348. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant (A-85) was charged under Section 3(3) TADA, for facilitating the commission of terrorist acts by allowing Mushtaq @ Tiger Abdul Razak Memon, Yakoob Khan @ Yeda Yakoob Wali Mohmed Khan and their associates to store 80 cartons of RDX explosives in his godown at M.I.D.C. Thane Belapur, which had been smuggled into India for committing terrorist acts. The appellant is also charged for aiding and abetting in carrying and transportation of RDX explosives from his godown. He was further charged under Section 5 TADA for possessing the said explosives unauthorisedly in Greater Bombay, Thane district. He was also charged under Section 6 TADA for contravening the provisions of the Explosives Act, 1884; Explosives Substances Act, 1908; and Explosives Rules 1983, by keeping in his godown the said 80 cartons of RDX explosives. Lastly, he had been charged under Section 4 read with Section 6 of the Explosives Substances Act, 1908 for having possession of the 80 cartons of RDX explosives stored in his godown.
B. After the conclusion of the trial and appreciating the evidence, the appellant was acquitted of some of the above- mentioned charges. However, he was convicted under Sections 3(3) and 6 TADA as referred to hereinabove.
Hence, this appeal.
349. Shri Mushtaq Ahmad, learned counsel appearing for the appellant has submitted that the appellant could not have been convicted under the provisions of TADA at all for the reason that the godown wherein the alleged explosives had been stored did not belong to him. He was neither the owner of the godown, nor did he have any control over it. It belonged to his father who knew the other co-accused and it was on the instructions of his father that the appellant accompanied them at the time of storing. More so, the appellant was not informed at any stage about the contents of the cartons and did not become aware of the same until the end. Therefore, the conviction is liable to be set aside.
350. Per contra, Shri Mukul Gupta, learned senior counsel appearing for the respondent has vehemently opposed the appeal submitting that the appellant was aware of the contents of the cartons. While initially he may not have known, he was informed by the co-accused Suleman, while returning from the godown that the cartons contained explosives. Thus, the facts and circumstances of the case do not warrant any interference by this court and, therefore, the appeal is liable to be dismissed.
351. We have considered the rival submissions made by learned counsel for the parties and perused the record.
352. Evidence against the appellant:
(a) Confessional statement of the appellant Liyakat Ali Habib Khan (A-85)
(b) Confessional statement of Murad Ibrahim Khan (A-130)
(c) Confessional statement of Suleman Mohd. Kasam Ghavate (A-18)
353. Confessional statement of the appellant Liyakat Ali Habib Khan (A-85):
At the time of incident the appellant was 34 years of age and he had voluntarily made the confession disclosing that his father had taken the godown at M.I.D.C., Thane, Belapur Road, in which construction took place and appellant had been working therein. He was closely acquainted with the other co-accused and Yakoob Khan (AA), his uncle, had come alongwith other co-accused Tiger Memon and Nisar to his father in the second week of February, 1993, and requested him to allow them to keep some goods for few months in the godown at Thane. They were permitted by his father to store the goods. They had gone there but could not open the lock of the godown. Therefore, they called the appellant at midnight and subsequently came to his house in a jeep and took him (A-85) with them. He also met Javed Chikna, Anwar Izaz and other co- accused on the way. He was directed by his uncle to keep watch for a tempo which was bringing certain goods. He waited for a while but the tempo did not arrive. So he went inside the factory and slept there. Thereafter, Tiger Memon (AA) alongwith Nisar came to the factory in the jeep of Tiger Memon (AA) and tried to open the lock. As they could not open the lock they had to break it with an axe. However, subsequently they came to know that it was not the correct godown. Thus, Tiger Memon called at his (A-85) residence and asked the correct number of his factory. Subsequently, they went to the correct factory and opened the same. They took the tempo which had the goods inside the factory and unloaded the same. It contained 80 packets in gunny bags each packet weighed about 30/35 Kg. Tiger Memon paid him Rs.600/- out of which he had paid Rs.200/- to Nisar. Then the appellant washed the jeep alongwith Nisar and Suleman and left for Bombay. On the way, Suleman told him that the goods which were kept in the factory were explosives.
353.1 In the beginning of March 1993, Tiger Memon came and took 6 packets in his car and 6 more packets were later taken by the appellant from the factory and delivered to him. They had put the material in a car and left it in the parking of Rahat Manzil. On the next morning, when he reached there, he could not find the car at that place. Two-three days before 17.2.1993 Tiger Memon (AA) and his companions transferred the remaining explosives from the factory to some other place. He came to know that in fact the explosives had been shifted from his godown prior to 12.3.1993.
353.2 In this case, his brother Iliyas was aware that the goods concealed in their godown were explosives and just after the Bombay Blast on 12.3.1993 Iliyas had driven Yakoob Khan to airport on 17.3.1993.
He (A-85) retracted his confession after moving an application on 8.12.1993 stating that he came to know only after the charge sheet had been filed on 30.11.1993 that he had made a confession and in fact no confession had ever been made by him. He was forced to sign a ready-made prepared statement which was never even read over to him and he signed the same because he had been in illegal custody of the police since 20.3.1993.
355. Confessional statement of Murad Ibrahim Khan (A-130):
He made the confessional statement on 3.4.1995 wherein he has given the complete depiction of involvement of the appellant. He (A-130) stated that after returning from Dubai, he started working with Majid Bhai whose nephew Liyakat (A-85) introduced him to Tiger Memon (AA). Later, he (A-130) found out that Tiger Memon was a smuggler. Liyakat was told to meet Tiger Memon at a petrol pump in Mumbra where he (A-130) accompanied him. When Tiger Memon (AA) reached there, he spoke to Liyakat about something and he (A-130) was told to wait at the petrol pump for sometime, while Liyakat (A-85) and Tiger Memon (AA) went to the factory. They returned having some packets which were kept by Liyakat (A-85) in Tiger Memons car. Tiger Memon left with the items and Liyakat (A-85) again went towards the factory asking him (A-130) to wait for Majid Bhai at the petrol pump. Once Liyakat (A-85) returned from the factory, he, Majid and Murad (A-130) went to their residence.
356. Confessional statement of Suleman Mohd. Kasam Ghavate (A-18):
In the confessional statement of Suleman, the same has deposed that Liyakat A-85 was involved in the case and he went on to identify him.
357. In his statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) in reply to Question Nos. 280, 284 and 308, the appellant (A-85) replied that he had made a confessional statement; the confessional statement did not contain his signature. He was in the lock up of Matunga Police Station, and was forced to sign on the said papers because he was told by the police that if he did not comply they would harass and torture him. He was frightened, disturbed and therefore, succumbed to the said demand. He was not aware of what was falsely forwarded to C.M.M. He was innocent. He had not committed any offence. The police had falsely implicated him in the case. The bomb blast was the outcome of the desire of the God.
358. After considering the evidence on record, the Designated Court recorded the finding as under:
(i) That initially A-85 himself was not aware regarding the material which was stored in the said godown.
(ii) After being shown the relevant material he had become aware of the nature of contraband material.
(iii) Still he did not take any steps regarding the same i.e. informing to the police, etc.
(iv) His said acts would definitely amount of having committed the offence under section 3(3) TADA having regard to wide definition of abetment given under TADA.
(v) His confession revealed that the material kept in his godown was ultimately taken away by Tiger Memon later on also denotes that though the material was in the godown of A-85 or his father still all the time possession of the same had remained with Tiger Memon. In view of the same A-85 could not be held guilty for commission of offence under Section 5 TADA for which he is charged with.
(vi) The same was the case regarding commission of offence under Section 6 TADA for which he is charged with.
(vii) However, he himself still having allowed to continue the said material in his godown till the same was taken away by Tiger Memon, would make him liable for commission of offence under Section 5 read with Section 6 of Explosive Substances Act.
(viii) A-85 was found guilty mainly due to few incidental acts committed by him in connection with contraband goods smuggled during Shekhadi landings.
(ix) The evidence surfaced and/or reasoning given thereon revealed that A-85 was closely related to absconding accused Yeda Yakoob and deceased accused Majid Khan i.e. nephew of said persons. The role played by him was confined to himself having provided and helped Tiger Memon for storing contraband goods i.e. RDX material in the godown of his father at Mumbra.
(x) He had not committed any act either with landing or with any of other operations effected in pursuance of conspiracy. Needless to add that evidence having denoted that the material stored at the godown being later on taken away by Tiger Memon, A-85 cannot be also said to have in possession of such contraband material. However, to the limited extent A-85 had committed offence under Section 3(3) TADA.
359. Much has been argued by Shri Mushtaq Ahmad, learned counsel appearing for the appellant that whatever may be the factual and legal position in the case, the appellant is a mentally challenged person and there is sufficient material on record to show the same. He has been suffering from the delusion and hallucination and had been treated in various hospitals. While dealing with the remand application vide order dated 8.12.1993, the learned Magistrate made the endorsement to the effect that appellant was suffering from mental illness. Even the order dated 19.10.1995 passed by the learned Designated Court takes note of his mental illness stating that he was not in good mental condition and his health has deteriorated.
359. 1 The appeal is accordingly dismissed.
359.2 The appellant has already served 3 years and 4 months. However, we find no cogent reason to interfere with the conclusion of the Designated Court.
Criminal Appeal No. 1029 of 2012
360. The respondent herein stood acquitted of the charge of conspiracy. Hence, the State has preferred this appeal.
361. Shri Mukul Gupta, learned senior counsel appearing on behalf of the appellant, has submitted that in spite of the fact that there was clear cut evidence against the respondent of his involvement in the conspiracy, he has wrongly been acquitted by the Designated Court. He is a nephew of Yakoob Yeda (AA), who had been a close associate of Tiger Memon (AA) and had not only permitted to use his godown for storing the arms, ammunition and explosives but had also accompanied them when such goods were shifted from there. Thus, the appeal deserves to be allowed.
362. Per contra, Shri Mushtaq Ahmad, learned counsel appearing on behalf of the respondent, has submitted that the respondent could not have been convicted under the provisions of TADA at all for the reason that the godown where the arms, ammunition and explosives had been stored, did not belong to the respondent. He was neither the owner of the godown nor did he have any control over it. It belongs to his father who had never been an accused. The respondent had been harassed merely being the nephew of Yakoob Yeda (AA) and he had been convicted for other charges and, hence, no interference is called for.
363. Heard learned counsel for the parties and perused the record. Confessional statements of A-18, A-85 and A-130 have already been referred to and appreciated in the connected appeal.
364. The Designated Court has dealt with the issue elaborately and recorded the findings as under:
Thus, considering material in the confession of A- 85 and aforesaid co-accused the same leads to the conclusion of A-85 though was not involved in Shekhadi landing operation he was involved in allowing his place i.e. godown of his father for storing explosive substances in large quantities.
However, considering the manner in which A- 85 had figured in commission of the relevant acts it will be difficult to come to the conclusion that he was involved in the conspiracy for which the charge at head 1st ly is framed or even otherwise. Hence, he will be required to be held not guilty of the said offence due to not only paucity of evidence for the same but his involvement being not even spelt for the same.
365. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
366. In view thereof, we do not find any cogent reason to interfere with the judgment of the Designated Court. The appeal is, accordingly, dismissed.