Mohammed Sayeed Mohammed Isaaq Vs. State of Maharashtra
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) Appellant going to Dubai at the behest of S, A-65 No knowledge of purpose On reaching Dubai, came to know that he had to travel to Pakistan to receive training in handling arms and ammunitions Unable to get training as suffered from tuberculosis Came back to India No overt act done on fateful day After Bomb blast remained in a hotel under fictitious name Designated court convicting under Section 3(3) as he got training for commission of terrorist act Plea of reduction in sentence of 5 years as half of the sentence already served. Held as it is a mandatory requirement under Section 3(3) to award 5 years sentence, plea not acceptable. No. interference required.
The submissions made on behalf of the appellant that he has served about half of the sentence and it may be reduced as undergone, is not acceptable, in view of the fact that it is mandatory requirement under Section 3(3) TADA to award the punishment to 5 years. (Para 61.1)
46. This appeal has been preferred against the judgment and order dated 22.5.2007 passed by the Special Judge of the Designated Court under the TADA for the Bombay Blast, Greater Bombay in Bombay Blast Case No.1/93, by which the appellant has been found guilty and has been convicted under Section 3(3) TADA on two counts and has been awarded a punishment of 6 years alongwith a fine of Rs.15,000/- on each count, and in default of payment of fine to suffer further R.I. for 3 months. However, the punishments have been directed to run concurrently.
47. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, he was charged with the execution of the aforesaid criminal conspiracy, as during the period between December 1992 to April 1993, he had abetted and facilitated various terrorist activities, and more particularly, he had gone to Pakistan to receive weapons training in the handling of arms, ammunition and explosives for the commission of the terrorist activities, between the dates 22.1.1993 – 15.2.1993.
B. He was further charged for having attended conspiratorial meetings held in Dubai and Pakistan, alongwith the other co- conspirators in order to plan the commission of terrorist acts.
C. After conclusion of the trial, the learned Designated Court found the appellant (A-95) guilty under Section 3(3) TADA only and awarded the sentence and fine, as referred to hereinabove.
Hence, this appeal.
48. Ms. Farhana Shah, learned counsel for the appellant, has conceded to the fact that the appellant had in fact gone to Dubai, without knowing the purpose of such visit, merely upon being asked by the other co-accused to do so, and that he came to know only once when he was in Dubai that he had to travel to Pakistan for receiving training in the handling of arms and ammunition. Even in Pakistan, he was unable to take training properly as he was suffering from various ailments due to which, he was even got abused several times. Learned counsel has admitted appellants visit to Dubai, but has also submitted that even after returning to Bombay, he did not participate in any overt acts or conspiratorial meetings. Hence, no charge could be proved against him for attending any such meetings either in India, Dubai, or Pakistan.
48.1 Therefore, it has been submitted by Ms. Farhana Shah, that appellant has been exploited by powerful criminals and smugglers, and that he had voluntarily gone to Dubai only in search of a job but, from there he was forced to travel to Pakistan for training. However, owing to the fact that he could not receive training, after returning to India he did not attend any meeting. Thus, he cannot be convicted for the offence punishable under the provisions of TADA.
49. On the other hand, Shri Mukul Gupta, learned senior counsel appearing for the CBI, has vehemently opposed the appeal contending that though undoubtedly, he might not have been involved in any overt act, his involvement in the aforesaid criminal conspiracy cannot be ruled out, hence, the provisions of Section 3(3) TADA would automatically be attracted in light of the facts of the case. Thus, the appeal lacks merit and is liable to be dismissed.
50. We have considered the rival submissions made by the learned counsel for the parties and perused the records.
51. Evidence against the appellant (A-95) :
(a) Confessional statement of Mohmed Sayeed Mohmed Issaq (A-95)
(b) Confessional statement of Hanif Mohmed Usman Shaikh (A-92)
(c) Confessional statement of Shaikh Ibrahim Shaikh Hussein (A-108)
(d) Confessional statement of Usman Man Khan Shaikh (A-115)
e) Deposition of Dilip Suryanashi (PW-225)
(f) Deposition of Amrutkumar Shah (PW-362)
(g) Deposition of Bhagat Singh (PW-382)
(h) Deposition of Achyut Bhalchandra Deshpande (PW-657)
(i) Deposition of Surendra Kumar Sonhd (PW-188)
52. Confessional Statement of Mohd. Sayeed Mohmed Issaq (A- 95):
His confession was recorded by Shri Surendra Kumar (PW-188), DCP Zone IV Bombay. He has stated that he was told by Yusuf to whom he was acquainted from 1.5 years, that Salim Kurla (A-65, since dead) was making a movie, and that if he (A-95) wanted, he could be assigned the role of a stunt man in such movie. When he contacted Salim (A-65), he (A-95) was told to stay in touch with him as a need might arise for them to travel abroad. As certain material had to be brought back from Dubai, he (A-95) at the behest of Salim Kurla (A- 65), went there after being assured by Kurla, that there would be no risk in doing the same. They were given there 200 Dirhams for expenses. It was only when they reached Dubai, that the appellant (A- 95) found out that they had been sent there for weapons training to take revenge upon the Hindus. At the said time, the appellant was suffering from Tuberculosis, and therefore, was unable to keep up with the training being provided and, hence, he along with four others, refused to participate in the said training.
53. Confessional statement of Hanif Mohmed Usman Shaikh (A- 92):
His confessional statement was recorded by Sharda Prasad Yadav, DCP Zone II, Bombay on 28.6.1993 and 30.6.1993. In his confession, he stated that at the instance of Salim (A-65, since dead), he went to Dubai alongwith the appellant (A-95), Hanif Mohmed Usman Shaikh (A-92) and Usman Man Khan Shaikh (A-115) and there they met Ahmed and Farooq, who were introduced to them by Salim and there they stayed in Delhi Darbar Hotel. They were given 200 Dirhams for expenses. Salim and Ahmed called all of them in a room and told that during December 1992 and January 1993, a great injustice had been done to the Muslim community during Bombay communal riots, and in order to ensure that such injustice may not be repeated, they would be imparted training to handle the arms, ammunition and for that purpose they should be ready to go to Pakistan the next day. All of them were scared, however, under pressure, they went to Pakistan. They were given Rs. 1000/- for expenses. They were imparted training how to handle the arms and ammunition in Pakistan and they came back to Bombay via Dubai.
54. Confessional statement of Usman Man Khan Shaikh (A-115):
His confessional statement was recorded by Sharda Prasad Yadav, DCP Zone II, Bombay on 6.7.1993 and 8.7.1993. He had given the version similar to that of Mohmed Hanif Mohmed Usman Shaikh (A-92), as he said that he became acquainted with Salim (A-65, since dead) and Salim took him to Dubai alongwith Mohd. Sayeed Mohmed Issaq (A-95), Shaikh Ibrahim Shaikh Hussein (A-108) and Mohmed Hanif Mohmed Usman Shaikh (A- 92). In Dubai, they were taken to Delhi Darbar Hotel. Ahmed, Farooq and Salim told them to go to Pakistan for some work and Ahmed had given them 200 Dirhams for expenses. They were also told that in December 1992 and January 1993, there were atrocities on Muslims and it was essential to learn how to use the sophisticated weapons by the Muslims to defend themselves if such riots occurred again. He went to Pakistan alongwith Mohd. Sayeed Mohmed Issaq (A-95), Shaikh Ibrahim Shaikh Hussein (A-108) and others and learnt how to use the weapons and after completing the training, they came back to India via Dubai.
55. Depositions of Dilip Suryanashi (PW-225) and Mohandas (PW-230) Immigration Officer at the Sahar International Airport, has proved that the appellant left Bombay on 22.1.1993 for Dubai, and he returned on 16.2.1993 from Dubai.
56. After the incident dated 12.3.1993, the appellant left alongwith several other persons under a fictitious name, and stayed at Baroda at a hotel. This has been proved by Amrutkumar Shah (PW-362), the owner of the said hotel. He has stated that as per the entry in the hotel register, Room No.204 had been taken by one Farooq Mohd. Shaikh on 22.5.1993, and that one Mohammed Bhai had also stayed with the said person.
57. Bhagat Singh (PW-382), the receptionist of the hotel has also proved the same stating that he had allotted Room No. 204 to Farooq Shaikh and Mohd. Shaikh.
58. Mr. Achyut Bhalchandra Deshpande (PW-657), police inspector, deposed that he had written a letter to the Deputy Commissioner of Police, Zone-III, Greater Bombay on 22.6.1993, to record his confessional statement. He has admitted in his cross-examination that he did not maintain any diary etc. wherein any such particulars have been recorded. He has also admitted that the name of the accused and the date in the body of said letter, are not in his hand-writing.
59. Surendra Kumar Sondh (PW-188), DCP Zone IV Bombay, recorded the confession of the appellant (A-95) on 13.7.1993 and 18.7.1993. He has stated that he was aware of the provisions of Section 15 TADA. He has also admitted that it was improper to continue the custody of the appellant (A-95) during the period that is given for reconsideration, with the same police officer who had produced the said accused before him on 13.7.1993.
60. After appreciating the entire evidence on record, the learned Special Judge found, that the confession of the appellant (A-95) clearly revealed that he had travelled to Dubai at the behest of Salim Kurla (A-65), and that thereafter, he had gone to Islamabad, Pakistan and attended a training camp, where he had acquired training in the operation of arms and ammunition, and that thereafter, he had returned to Bombay via Dubai. The same has been corroborated by the confessions of the other co-accused.
60.1 The Court has held that considering that the place of training was a foreign country; the fact that the nature of training acquired was to operate machine guns, AK-56 rifles, hand grenades, RDX, to undertake the preparation of bombs, and to operate rocket launchers etc.; the meetings attended after the said training; the purpose of the training and the oath of secrecy taken by the appellant (A-95); as well as all other relevant factors, it becomes abundantly clear that all the above activities were directed towards the commission of acts of violence against the people of Bombay, and since the same were not directed against any particular person, they could only be for the purpose of the commission of terrorist acts. Hence, the appellant (A- 95) had been trained for the commission of terrorist acts.
61. It is evident from the evidence on record and the findings recorded by the learned Designated Court, that the appellant (A-95) had gone to Dubai at the behest of Salim Kurla (A-65) and, thereafter, to Islamabad in Pakistan for attending the training camps and acquired training in handling the arms and ammunition and thereafter, returned to India via Dubai. There is evidence on record that the appellant (A- 95) came to know only after reaching Dubai that he had to go with other four co-accused to Pakistan for taking training as they had to take a revenge for suffering of Muslims, and he was under a coercion that he alongwith others could be arrested by the police of Dubai and, therefore, he had to go to Pakistan for training. Even after coming back, there is no evidence to show that the appellant (A-95) had committed any offence and participated in any other act on the fateful day. Further, as the appellant had obtained training for the commission of the terrorist acts, he cannot be acquitted of the charges under Section 3(3) TADA.
61.1 The submissions made on behalf of the appellant that he has served about half of the sentence and it may be reduced as undergone, is not acceptable, in view of the fact that it is mandatory requirement under Section 3(3) TADA to award the punishment to 5 years.
62. We do not see any force in the appeal, it lacks merit and, accordingly, dismissed.